to defraud him, is not necessarily a misdemeanour. To constitute the act a misdemeanour, there must be some other ingredient: the obtaining must be by certain means, as, for instance, by false pretences, and the means must be specified-East, P.C. 818, The King v. Wheatly (1), The King v. Lara (2), The King v. Mason (3), 1 Stark. C.P. 95. The attempt and endeavour fraudulently to obtain the money is not a misdemeanour, unless the actual obtaining it in the manner set forth in the indictment would have been a misdemeanour.

[PARKE, B.-That is so.]

The indictment is also defective, for not stating in whom was the property of the money intended to be fraudulently obtained -The Queen v. Norton (4), The Queen v. Martin (5).—(He was then stopped by the Court.)

of the goods and chattels of one Thomas Keighway."

The prisoner pleaded not guilty.

On the trial it was contended by the prisoner's counsel that the prisoner could not be convicted, as it did not sufficiently appear by the indictment that the article stolen was the subject of larceny, as the ham might be the ham of some wild animal, and so not a subject of larceny. The Court of Quarter Sessions overruled the objection, but reserved the question as to the sufficiency of the indictment for the consideration of the Judges. The prisoner was found guilty, and sentenced to imprisonment.

it does

Henniker, for the prisoner.-A ham is not necessarily a subject of larceny not always mean salted swine's flesh; the word properly means the hinder part of the leg of any animal. In Richardson's Dictionary a ham is defined as that part of the body where the leg and thigh unite. It is not alleged that this was the ham of any animal fit for food.

[PARKE, B.-Cannot a man be indicted for stealing the ham of a bear?]

The flesh of animals feræ naturæ, which are fit for food, may be subjects for larceny, but no larceny can be committed of the flesh of those which are not fit for food-2 Russell on Crimes (1).

[PLATT, B.-Suppose people were to choose to eat foxes' hams.]

[POLLOCK, C.B.-Do you say that larceny cannot be committed of a stuffed panther or the skeleton of a wild animal of great value?]

Dogs, though valuable, are not subjects of larceny at common law. An indictment for stealing a duck is bad unless it allege it to be a tame duck.

[PATTESON, J.-"A ham" is not the name of any living animal.]

[POLLOCK, C.B.-Cutting up the animal and appropriating it will make it property.]

It may not have been cut off by any person; a dog may have torn it off and left it. An indictment for stealing "three eggs" has been held bad-The Queen v. Cox (2). Tindal, C.J. in that case would not presume that the eggs were such as were the subjects of larceny.

(1) In the 2nd edition, p. 151.
(2) 1 Car. & K. 494.

Appeal against an order for the removal from the parish of All Saints, in the borough of Derby, to the township of Sheffield, in the county of York, of two pauper children of the respective ages of six and eight years, born of Irish parents. The Sessions quashed such order subject to a special case.

The material facts were, that the said pauper children were born in the appellant township of Irish parents, neither of whom had gained any settlement in England. That the mother was dead, and about five months before the making of the order the father had gone away and deserted his said pauper children, leaving them in a house in the respondent parish, which he had occupied for some time previous, and had not since been heard of; and that, consequently, the said children became chargeable to the respondent parish. The appellants, at the Sessions, objected that the paupers, if removable at all from the respondent parish, ought, under the provisions of the 8 & 9 Vict. c. 117. s. 2, to have been removed to Ireland, and were not removable to the place of their birth in the appellant town

ship, and the Sessions were of that opinion. If the Court of Queen's Bench should be of opinion that the objection so taken ought to have been overruled, then the order of Sessions was to be quashed and the order of removal confirmed. If otherwise, the order of removal was to stand quashed, and the order of Sessions be confirmed.

Pashley, in support of the order of Sessions. The point here arises under the 8 & 9 Vict. c. 117. s. 2. (1), and it is submitted that as relief given to a child under sixteen must be considered as relief given to the parent, the father in this case became chargeable to the respondent parish, and both he and his children were under the act removable to Ireland; the order therefore for removing the children to the place of their birth is invalid. If the father had been served with a summons and were afterwards found, or had voluntarily appeared, then both he and his children might clearly have been removed to Ireland; or, if the summons had been served and he were not found, then his children, if he could not be found after the making of the order, might be removed. alone. The same thing, it is submitted, may be done under the act, where, as here, the father deserts his children. If the father were dead then indeed there appears to be no power given by the act of removing the children to Ireland. Suppose the present order valid and unappealed against, and the

(1) Which enacts, "That if any person born in Scotland or Ireland, or in the Isle of Man, or Scilly, or Jersey, or Guernsey, not settled in England, become chargeable to any parish in England by reason of relief given to himself or to herself, or to his wife, or to any legitimate or bastard child, such person, his wife, and any children so chargeable shall be liable to be removed respectively to Scotland, Ireland, the Isle of Man, Scilly, Jersey, or Guernsey; and if the guardians of such parish, or of any union in which the same may be comprised, or where there are no such guardians, if the overseers of such parish complain thereof to any one Justice of the Peace, such Justice may, if such person do not attend voluntarily, summon him to come before any two Justices of the Peace at any time and place to be named in the summons, and at such time and place, or on the attendance of such person any two Justices may hear and examine into the matter of such complaint, and if it be made to appear to their satisfaction that such person is liable to be so removed as aforesaid, and if they see fit they may make and issue a warrant under their hands and seals to remove such person forthwith at the expense of such union or parish."

father were afterwards to join his children in another parish and to become removable to Ireland, it would be said the children were not, as their settlement had been already decided upon, and thus they would be separated contrary to the policy of the law. He referred to The King v. the Inhabitants of Great Clacton (2), The King v. the Inhabitants of Leeds (3), The King v. the Inhabitants of Mile End, Old Town (4), The Queen v. the Inhabitants of Preston (5), The King v. Benett (6), The Queen v. the Inhabitants of Pott Shrigley (7).

Whitehurst and Boden, contrà.-By the general law of settlement the paupers in this case were entitled to be removed to the place of their birth, and the 8 & 9 Vict. c. 117. makes no difference. The 2nd section all through has reference to the person born in Ireland, the head of the family; and here, if the father had been in a situation to be removed to Ireland, the paupers, as a part of his family, might have been removed with him. The act only applies when the children are actually a part of the parent's family at the time. After the father's desertion his children were no longer part of his family. They were placed in the same situation as if he were dead, and it is conceded that in such case the children would not be removable to Ireland. No difficulty would arise if the father returned after the removal of the children. If the children afterwards became a part of the father's family, they might be removed under the act with him. The case of The King v. the Inhabitants of Cottingham (8), not distinguishable in principle from the present, shews that there would be no inconsistency in that. The decision in The King v. the Inhabitants of Mile End, Old Town, goes directly to shew, that it is only as being actually a part of the father's family that the children can be removed to Ireland, and it is borne out by all the other cases already referred to. It is submitted, therefore, that under the general law of

settlement the paupers were entitled to their birth settlement, and the act does not warrant their removal to Ireland in a case like the present.

COLERIDGE, J. This case has been argued fully, and it was right that it should have been, for no doubt it is one of some importance. Considering the provisions of the statute, I am now of opinion that the present rule ought to be made absolute. The important facts are, that the two legitimate pauper children were born in England; their father and mother, both Irish people, have neither of them gained any settlement in England; the mother is dead, and the father has deserted them. The latter fact must now be considered as implying an entire separation between the father and his said two children for the time being; and not merely his absence for a week or so, it being known where he is or where he might be found if a search were made, for circumstances such as these would not justify the Quarter Sessions in saying that the father had deserted his children. I deal therefore with the present case on the ground of the desertion being, as I have said, an entire separation; and that being so, the decision in The King v. the Inhabitants of Cottingham, under the 59 Geo. 3. c. 12, in force at that time, establishes that a wife deserted by her husband, an Irishman who has not gained a settlement here, may with her children be removed to her maiden settlement. In this case the mother was in exactly the same situation as the father, otherwise the children would be removable to the place of her maiden settlement here. Then, the next question is, had the children any settlement at all? I take it to be a rule of law, that every English-born subject has a settlement, and that settlement is primâ facie his place of birth. It is prima facie only, because the moment it is shewn that either the father or the mother has gained a settlement in England, then the settlement of the child is, as the case may be, that of the father or mother. But if they have no settlement here, or, what comes to the same thing, their place of settlement cannot be found out, then the child's birth settlement, which has always been potentially in existence, comes into practical effect. But it is said that the

particular act in question gives the Justices power to do what they have done in this case. We must look at the words of the act; and if they are plain, it is no answer to say that the remedy is incomplete, or that the act was framed without a due observance of the existing law of settlement. Now, under the terms of the 2nd section, the person must be born in Scotland or Ireland, &c., and must become chargeable in England, by himself, his wife or children; and then "such person, his wife and any child so chargeable shall be liable to be removed to Scotland or Ireland," &c. It is said, the latter words may be taken distributively, but when we go on to see how the section is to be carried into effect, we shall find that construction will not do, and that the "person" must be one of those to be removed. The section goes on to provide, that one Justice upon the complaint of the guardians or overseers, "if such person do not appear voluntarily," may summon him to appear, and at the time and place named, or on the attendance "of such person," two Justices are to hear the complaint, and if they see fit, issue their warrant for the removal of "such person." It may be open to doubt under this whether the Justices could even proceed in the absence of the father. I do not mean to say that they have not the power to do so, whether the father appears or not, or at least upon proof of the service of the summons upon him; but however that may be, it is clear in this case that he must be one of the persons removed, and that disposes of the present case. to any difficulty that might arise, supposing the father should afterwards return, it is not now necessary to say anything. But I may remark, that it appears to me as at present advised, that no more difficulty will arise because of the order for the removal of the children. It is only a decision as to their birth settlement at that time, and it would still be open to the Justices to proceed under the terms of the act of parliament, (which breaks in on the general law of settlement, and, if you please, introduces an anomalous exception), and remove the children with the father, as part of his family.

As

WIGHTMAN, J.-The question here is, whether the provisions of the 8 & 9 Vict. c. 117. have the effect of entirely destroying the operation of the birth settlement of the two

pauper children, whose father it must be taken has deserted them. I think not, and that they are under the circumstances properly removable to their birth settlement. Under the act it is only incidentally that the children can be removed to Ireland; unless the father is in a situation to be removed, and the children are at the time part of the father's family, the act does not apply to the children. It is said that the father may after the removal of the children return, and the children be again removed with him to Ireland. That point was considered in The King v. the Inhabitants of Cottingham, and it was thought not inconsistent that it should be so. By considering that until within the operation of the act, the children are removable to the place of their birth, all difficulty is avoided, and no inconsistency arises. The order of Sessions, therefore, must be quashed.

ERLE, J.-I am of the same opinion. As long as the children were capable of being removed under the act to Ireland, they could not be removed to their birth settlement, and the cases also shew that when the power of removing to Ireland is destroyed permanently, there is a power to remove to the birth settlement. The question here is, whether the father's desertion is such a permanent suspension as to give the power to remove to the birth settlement; and I think it is, agreeing as I do that desertion must be taken to mean absence in its nature considerably permanent. I felt more pressed with the argument as to what appeared to be the inconvenience of the father's returning after perhaps an absence of only three or four months, when the children had been removed to their birth settlement, and no appeal against such removal; but I think the answer which has been given to that is one that I ought fully to adopt. It would be a settlement by admission, and I see no reason why it should not be shewn by evidence what that admission amounted to, and upon that being shewn, the children might be removed from the place of such settlement.

Order of Sessions quashed.

1849. Nov. 14.

THE QUEEN

. THE INHABIT

ANTS OF ASTON-NIGH-BIR-
MINGHAM.

Order of Removal-Grounds of Appeal -Traverse of Examinations-Variance in Dates-Question of Construction-Decision of Sessions reviewed.

The pauper's examination upon which an order of removal was founded, stated a settlement by apprenticeship in the appellant parish under a covenant of indenture executed in the year 1804. One ground of appeal was that the said pauper was not in the year 1834 legally bound apprentice to," &c. (following the words of the examination)

66

as stated in the said examination of the said pauper taken in this cause," &c. :-Held, that such ground of appeal was a sufficient traverse of the settlement by apprenticeship stated in the examination, and that the decision of the Sessions upon the question was one which this Court might properly re

view.

Appeal against an order for the removal of a pauper from the parish of St. James's, Clerkenwell, in the county of Middlesex, to the parish of Aston-nigh-Birmingham, in the county of Warwick.

The examination of the pauper, upon which alone the order was made, amongst other matters, stated that in the year 1804 the pauper was bound apprentice by covenant of indenture duly signed, sealed and stamped to one Charles Powell, of Alcester Street, in the parish of Aston, in the county of Warwick, a silver-plated cup and tankard maker, for the term of seven years, to learn the same art or trade, and then went on further to state a due service for six years and nine months, under the said indenture, and a residence during all that time in a house rented and occupied by the pauper's father in the said parish of Aston, &c. The appellant's fourth ground of appeal was, that the said 66 pauper was not in the year 1834 legally bound apprentice to Charles Powell, of Alcester Street, in the said parish of Aston, in the county of Warwick, silver-plated cup and tankard maker, for the period of seven years, as stated in the examination of the said pauper taken in this case, and that the said pauper did NEW SERIES, XIX.-MAG. CAS.

not," &c. (traversing the rest of the examination in terms). At the trial of the appeal the respondents, being required to prove a settlement in the appellant parish, contended that the settlement by apprenticeship stated in the examination was not traversed by the above ground of appeal, and the Sessions being of that opinion, confirmed the order, subject to the opinion of this Court. If the Court should be of opinion that the ground of appeal did raise an issue upon the question of settlement, the order of removal and the order of the Sessions were to be quashed; but if otherwise, to be confirmed.

Prendergast and Wells, in support of the order of Sessions, contended, first, that the decision of the Sessions on the insufficiency of the ground of appeal was a conclusive decision upon a matter of fact, and could not now be reviewed by this CourtThe Queen v. the Justices of Kesteven (1), The Queen v. the Justices of Buckinghamshire (2); and, secondly, that the Sessions were right in deciding that the apprenticeship stated in the examinations, was not so traversed by the ground of appeal as to raise a sufficient issue, although but for the variance in the dates it would have been otherwise. They referred on the last point to Benthall v. West (3).

Pashley, contrà, was not heard.

COLERIDGE, J.-In this case the order of Sessions must be quashed. No doubt the decision of the Sessions on a question of fact must be considered as final, and there are many authorities to shew that even where the Sessions wrongly send up a case for the purpose of having such decision reviewed, this Court will not interfere. But this is not a mere question of fact. It is one which might properly be left open for our consideration, as it has been. A question arising upon the construction of a written instrument is one for the Court, and not for the jury; and looking here at the examinations and the ground of appeal, it is quite obvious that 1834 was put by mistake for 1804, and being a mistake by which the respondents could not be

(1) 13 Law J. Rep. (N.s.) M.C. 78. (2) 18 Law J. Rep. (N.s.) M.C. 113. (3) 1 Dowl. & L. P.C. 599; s. c. 13 Law J. Rep. (N.S.) Exch. 248.

D