to be entered for the plaintiff by confession, The following cases and statutes were cited and referred to on behalf of the plain tiff: 4 Geo. 4. c. 64. s. 33. 5 & 6 Will. 4. c. 76. s. 116. The Queen v. the Bishop of Bath and The following authorities and statutes were cited on behalf of the defendant : 5 & 6 Will. 4. c. 76. ss. 38, 98, 101, 116. 4 Geo. 4. c. 64. ss. 10, 12, 50, 54, 59, 68. Quarter Sessions of the Peace at Ipswich, the borough Justices held a quarterly gaol session, and then and there appointed the plaintiff to the office of surgeon to the borough gaol, at a salary of 30l. per annum; and he has ever since performed the duties of that office. At the General Quarter Sessions of the Peace for the bo rough, holden on the 15th of October following, the Recorder appointed the plaintiff to the same office, at the same salary, so that if the appointment rests with the Justices, or with the Recorder, the plaintiff was well appointed, and was entitled to hold the office on the 10th of November, and so will be entitled to a verdict. The first statute which we need notice, relating to the appointment of surgeons to gaols, is the 14 Geo. 3. c. 59. By the 1st section of that statute the Justices in Quarter Sessions assembled are authorized and required to do various acts there mentioned, for the purpose of preserving health amongst the prisoners, and, amongst other things, to appoint an experienced surgeon or apothecary at a stated salary, to attend to the prisoners in the gaol. This statute, which The Queen v. the Bishop of Bath and is general, and applies to all gaols whatever, Wells. 2 & 3 Vict. c. 56. ss. 1, 2, 16, and the Schedule. 7 Will. 4. & 1 Vict. c. 78. The Queen v. the Recorder of Hull. The judgment of the Court was now pronounced by POLLOCK, C.B.-This was a special case, argued last term; and the question submitted for our decision was whether, under the circumstances stated in the case, the plaintiff was duly appointed surgeon to the borough gaol at Ipswich, and entitled to hold that office, on the 10th of November 1845. If he was, then, by the agreement of the parties, the plaintiff is to have judgment for a sum of 107. 16s., otherwise a nolle prosequi is to be entered. In order to enable us to decide the case, we must endeavour to reconcile, so far as is possible, the enactments of several modern acts of parliament, framed apparently without due regard to their bearing on one another. The material facts are very simple. On the 25th of July 1845, being the exact time of holding was in operation until the passing of the 4 Geo. 4. c. 64, which repealed it so far as related to county gaols and the gaols of certain enumerated cities and boroughs, not including Ipswich. Although however it was so far repealed, yet by the 33rd section of that statute a provision nearly the same was introduced. It enacted that the Justices in general or quarter sessions assembled should, from time to time, appoint a surgeon to each of the prisons within their jurisdiction; and it further enacted, that it should be lawful for the Justices at every general or quarter sessions, after such appointment, to direct a reasonable sum to be paid as salary to such surgeon, and also such sums of money as should be due for medicines. From the time, therefore, of the passing of this last statute, the appointment of the surgeons to all gaols continued to be exercised by the Justices assembled in Sessions, scil. as to county gaols and certain enumerated borough gaols under the 4 Geo. 4. c. 64. s. 33, and as to all other borough gaols under the old statute 14 Geo. 3. c. 59. s. 1. So matters rested until the passing of the Municipal Reform Act, 5 & 6 Will. 4. c. 76. By the 116th section of that statute it is enacted, that the town council of the boroughs enumerated in the 4 Geo. 4. c. 64. shall, thenceforth, have all the powers which the Justices of sessions possessed under that act, and this clearly gave to the town council of the boroughs so enumerated the power inter alia of appointing the surgeons. But as Ipswich is not one of the places enumerated in the 4 Geo. 4. c. 64, the enactment did not affect that borough. The only other clause in the Municipal Act material to the present question is the 105th, which enacts, that the Recorder of every borough shall hold quarterly sessions of the peace, at which he shall be the sole Judge; and such Quarter Sessions shall have cognizance of all crimes and matters whatsoever cognizable by any Court of Quarter Sessions, and the Recorder shall have full power to do all things necessary for the exercise of such jurisdiction. It seems to us clear that, under this clause, the Recorder, so far as relates to the boroughs not enumerated in the 4 Geo. 4. c. 64, had the same power of appointing a surgeon as had been previously exercised by the borough Justices in quarter sessions assembled. Such was the principle on which the Court of Queen's Bench decided the cases of The King v. the Recorder of Hull, The King v. the Inhabitants of St. Lawrence, Ludlow(1), and some other cases. The result, therefore, is, that after the passing of the Municipal Act, the power of appointing the surgeon of the gaol was vested, as to the cities and boroughs enumerated in the 4 Geo. 4. c. 64, in the town council; and as to all other boroughs, regulated by the Municipal Act, in the Recorder. But this state of things did not last very long. Neither the town council nor the Recorder were very fit functionaries for the ordering and governing of prisons, and, accordingly, by an act passed two years after the passing of the Municipal Reform Act, namely, 7 Will. 4. & 1 Vict. c. 78, entitled, An act to amend an act for the regulation of Municipal Corporations in England and Wales,' it was enacted, in section 38, that all the powers of regulation which, (1) 11 Ad. & El. 170. before the passing of the Municipal Reform Act, were possessed by the Justices, and all things by any act of parliament provided to be done at any Quarter Sessions of the Peace, in relation to the regulating of any such gaol should be exercised by the borough Justices, who should, for that purpose, hold a quarter session at the usual times of holding the quarterly sessions of the peace, "Provided that no order of the Justices which should require the expenditure or payment of money, should be of force until confirmed by the council." The appointment of a surgeon is clearly an act provided by an act of parliament to be done at Quarter Sessions in relation to the regulating gaols. It forms one of several matters of regulation directed to be done by the 14 Geo. 3. c. 59, and as to which every gaoler was, by the 29 Geo. 3. c. 67, required to make regular returns, stating how far the exigency of the statute has been complied with. The effect, therefore, of this last act (7 Will. 4. & 1 Vict. c. 78), was to restore to the borough Justices the power which they possessed before the passing of the Municipal Act, of appointing a surgeon; only instead of making the appointment when assembled in Quarter Sessions, they were to make it at a quarterly meeting, held at the same time at which the Quarter Sessions of the Peace is held; a provision rendered necessary by the change in the constitution of the Court of Quarter Sessions, under which the Justices ceased to be a constituent part of the Court. It may be observed, that the operation of the last statute was somewhat different in respect of the boroughs enumerated in 4 Geo. 4. c. 64. and those not so enumerated. As to the latter, the Justices at the time of the passing of the Municipal Reform Act appointed the surgeon under the provisions of the 14Geo.3. c. 59, whereas, in respect to the enumerated boroughs the appointment was made by virtue of 4 Geo. 4. c. 64. s. 34. Under the former statute the Justices are required to appoint a surgeon at a stated salary, whereas under the 4 Geo. 4. c. 64. s. 33, which regulates the course to be pursued as to the enumerated boroughs, the Justices are simply to appoint a surgeon, and then, at every succeeding session, the Justices are authorized to order a reasonable sum to be paid to him for salary and medicine. The appointment is complete without any reference to remuneration, the amount of which is to be fixed at some subsequent session. Now, Ipswich not being one of the enumerated boroughs, the duty of the Justices, after the passing of the 7 Will. 4. & 1 Vict, c. 78, was to appoint a surgeon at a stated salary; and it was argued that under the provisoes contained at the end of the 38th section of that statute, the appointment would be of no force until confirmed by the town council, inasmuch as the appointment necessarily entailed on the borough the payment of money. If it was necessary to decide this point, we should probably hold that the case did not come within the proviso in question. The appointment of an officer to watch over the health of the prisoners is hardly to be described as an order made by the Justices: it is rather an act done by them in obedience to the positive injunction of an act of parliament, and so not within that proviso at all. It is, however, unnecessary to decide this point, for we are all of opinion that the effect of 2 & 3 Vict. c. 56. s. 1. is to put all the boroughs regulated by the Municipal Act on the same footing as those which were previously regulated by 4 Geo. 4. c. 64. The words of the enactment are that the 4 Geo. 4. c. 64, (subject to certain qualifications not material to the present question,) shall extend to every gaol in England, not used exclusively for the confinement of debtors, except the Queen's Bench and Fleet Prison, and the Millbank Penitentiary. Now, before the passing of this last act, the 4 Geo. 4. c. 64. did extend to some boroughs, subject, however, to certain qualifications contained in the 7 Will. 4. & 1 Vict. c. 78, rendered absolutely necessary by the circumstances, that since the passing of the Municipal Act the Justices never can be assembled in Quarter Sessions; and, therefore, the 4 Geo. 4. c. 64, so far as it gives power to the Justices in Quarter Sessions assembled, cannot be strictly in terms executed in any borough to which the Municipal Act applies. But we think that when the 2 & 3 Vict. c. 56. enacts, that the 4 Geo. 4. c. 64. shall extend to all gaols, it must be construed with reference to the 7 Will. 4. & 1 Vict. c. 78. The meaning of the act was to put all borough gaols, with reference to the 4 Geo. 4. c. 64, on the same footing with the gaols of the boroughs there enumerated, as if that statute had extended to all boroughs. It could not have been intended to repeal or affect the enactment of the 7 Will. 4. & 1 Vict. c. 78, which were absolutely necessary in order to enable the provisions of the 4 Geo. 4. c. 64. to be carried into effect. And this was, we conceive, what was meant by Lord Denman, when he says in the case of The Queen v. the Bishop of Bath and Wells, that the statute 2 & 3 Vict. c. 56. was framed with a view to the existing state of things in every borough. It must be read as if it placed all boroughs in the schedule to the 4 Geo. 4. c. 64. so as to affect them all by the provisions of that act, and by all subsequent enactments relative thereto. The result, therefore, of our judgment is, that the plaintiff was duly appointed surgeon by the Justices on the 25th of July 1845; and as he certainly continued to hold that office on the 10th of November 1845, he is, by the express agreement of the parties, entitled to judgment. It is wholly unnecessary that an examination which states a marriage and the time it took place should also state the place. The examination shewed a certificate granted to the pauper's father by the appellant to the respondent township in 1812, and a continuous residence in the respondent township from that time to the present. One of the grounds of appeal stated that the pauper's father in 1821, 1822, 1823 gained a settlement in the respondent township, by settling upon, renting, and occupying certain tenements in that township (which, with the names of the owners, were specifically stated in the ground of appeal):-Held, that such statement did not sufficiently shew a compliance with the 9 & 10 Will. 3. c. 11; and that the Sessions were right in refusing to go into evidence of such settlement. The Court will only entertain cases from the Sessions which raise a question, the decision of which will decide the appeal, and will not act on a direction by the Sessions, that in a particular event the case is to be sent back to them to be re-heard. On appeal against an order of two Justices for the removal of John Coates and Elizabeth his wife, and their two children, from the township of Wath, in the North Riding to the township of Marton-cum-Grafton, in the West Riding of the county of York, the Sessions confirmed the order, subject to a case, which set out (amongst others), first, the examination of the pauper, John Coates; secondly, the examination of the pauper's father, Joseph Coates, which, after stating that he had in 1812 procured a certificate from the township of Marton-cum-Grafton, under the hands and seals of the churchwardens and overseers, &c., directed to the churchwardens and overseers of Wath, acknowledging him to be duly settled in the former township, proceeded as follows: —-“ "Which certificate I delivered to the overseers of the said township of Wath in the year 1812, when I came to reside in that township, and accordingly from that time to this I have dwelt in the said township of Wath, under the said certificate. About the year 1812 I was legally married to my wife Margaret. John Coates, the pauper, was one of our children born after the said marriage; he is now about thirty." The first ground of appeal was, that the grounds of removal, and the facts and evidence in support of the same as set forth in the examination, upon which the said order was made, are not set forth with sufficient certainty and precision, nor are the same sufficiently particular, distinct, and explicit to inform us exactly upon, or as to all, or any, of the circumstances requisite to justify and warrant the said order. The other grounds of appeal, from the first to the fifteenth, traversed matters of fact in the examination, the thirteenth being, that John Coates was not the son of Joseph Coates. Fifteenth, that in the years 1817, 1818 and 1819, and in each and in every of them, the said Joseph Coates in the said pretended certificate mentioned acquired a settlement in the said township of Wath, by reason of his settling upon, and residing, and occupying in each and every of those years a tenement of the yearly value of 10%., which said tenement consisted of a certain tenement situate in your said township of Wath, being a dwelling-house and building rented by the said Joseph Coates of one William Pearson, and of a certain other building situate in your said township, being a shop and building rented by the said Joseph Coates, of his father, Joseph Coates, sen., and of a certain other tenement situate in your said township, being certain cattlegates, and the pasturage, eating, grass, profits and interest in certain land of the Marquis of Aylesbury, rented by the said Joseph Coates first above mentioned of one William Squires; and of a certain other tenement situate in your said township, being certain other cattle-gates, eating, pasturage, grass, hay, profits and interest in certain land of the Marquis of Aylesbury, rented by the said Joseph Coates first above mentioned of the said Joseph Coates, sen. Sixteenth, that in the years 1820, 1821, 1822, 1823, and 1824, and in each and every of them, the said Joseph Coates first above mentioned gained a settlement in your said township of Wath, by reason of his settling upon, and renting and occupying in each and every of those years of the several persons in that behalf thereinafter mentioned a certain tenement situate in your said township of Wath, consisting of a separate and distinct dwelling-house or building of the said Marquis of Aylesbury of the rent of 5l. a-year, and of certain land of the said Joseph Coates, sen., of the rent of 6l. 10s. a-year, and of another separate and distinct building of the said Joseph Coates, sen., of the rent of 1l. 10s. a-year, and of another separate and distinct dwelling-house or building of the said William Pearson of the rent of 21. 2s. a-year, which said last-mentioned tenement so consisting of the premises last aforesaid was bona fide rented by the said Joseph Coates first above mentioned, at and for the said several sums respectively in this behalf above mentioned, of the said several persons in that behalf above mentioned, for the term of one whole year in each and every of the said several years, and held and actually occupied for the term of one whole year under each and every of the said several yearly rentings of the said lastmentioned tenements, and of the said several premises of which the same consisted in your said township of Wath, to wit, by the said Joseph Coates first above mentioned, the said several rents of the same to the amount of 10l. a-year for the term of one whole year, and the same having been actually paid in each and every of the said years, to wit, by the said Joseph Coates first above mentioned. At the trial the counsel for the appellants objected to the examinations, that it was not stated where Joseph Coates was married, from whose settlement in the appellant township by certificate the settlement there of John Coates, the pauper, was alleged to be derived by parentage, no further information being disclosed by the said examinations as to the said marriage than in the words "about the year 1812 I was legally married to my wife Margaret.' In answer to this objection, the counsel for the respondents contended, that the appellants having by the grounds of appeal specified and traversed several of the facts stated in the examinations, and thus given notice of what he intended to dispute, all other facts alleged in the said examinations must be taken to be admitted, and therefore that the appellants had admitted that Joseph Coates was legally married, as stated in his examination, and could not under the general head of objection insist that the place where he was married was not stated therein. After argument, the Sessions, without expressing any opinion upon the materiality of the alleged omission, overruled the objection, but granted a case for the opinion of the Court of Queen's Bench upon the question, whether the said grounds of appeal were sufficient to enable the appellants to take such an objection to the examinations. The Sessions then proceeded to hear the appeal, and the said Joseph Coates having been called by the respondents and proved their case as stated in the examinations, the counsel for the appellants proceeded to cross-examine him in order to establish the subsequent settlement of the said Joseph Coates, stated in the grounds of appeal, when the counsel for the respondents objected to the appellants being permitted NEW SERIES, XVI.-MAG. CAS. to give any evidence under the fifteenth or sixteenth grounds, of a settlement by renting a tenement in the respondent township, because neither of the said grounds contained any statement that the said Joseph Coates, the person renting and holding the same, had resided forty days in the said township, and because the last of those grounds, namely, the sixteenth, did not contain any statement that the whole of the year's rent for any one of the years mentioned therein had been paid by the said Joseph Coates. In answer to which objection the counsel for the appellants contended that such a statement of residence was unnecessary in the said grounds, because it was contained in the said examinations which sufficiently shewed and supplied it, and there was in the said grounds sufficient reference to the said examinations to incorporate them for this purpose. After argument the Sessions decided that there was not in the said grounds of appeal sufficient reference to the said examinations, to incorporate the statement therein contained of the residence of the said Joseph Coates in the respondent township. The Sessions were also of opinion that the said fifteenth and sixteenth grounds of appeal were bad, because they did not sufficiently shew that the statute 9 & 10 Will. 3. c. 11. (relating to the mode by which only a settlement can be gained by certificated persons) had been complied with; but the Sessions granted a case for the opinion of the Court of Queen's Bench upon both of the above points. The Sessions confirmed the said order subject to the opinion of the said Court of Queen's Bench. If the Court should of opinion that the said statement in the grounds of appeal was sufficient to enable the appellants to take the above-mentioned objection to the examinations, and the omission of the place where the marriage was solemnized was a material one, then the said order was to be quashed. Or if the said Court upon this point should be of a contrary opinion, and yet of opinion that the fifteenth head of the statement of grounds contained a sufficient reference to the said examinations, so as to allow an incorporation of the statement therein contained of the residence of the said Joseph Coates in the respondent township, and also shewed a sufficient compliance with the said Y |