the fame time to fubftitute as good a thing as an examination in lieu of it for the benefit of the parish. But in the 32 Geo. II. or between that time and the 20 Geo. II. the Legiflature had under their confideration what would be evidence, and accordingly they inferted in the above clause the following words: "which attefted copy fhall at any time be "admitted in evidence, as to fuch laft legal fettlement, be "fore any of his Majesty's Juftices of the Peace, or at any "General or Quarter Seffions of the peace." So the law ftands now; and the copy only, and not the original, is by the A&t made evidence; which could only be done on the idea that the original was evidence before. If it had been neceffary to have enacted that the original should be evidence, two words would have done it: and it is impoffible to fuppofe that the Legislature meant that the copy fhould be evidence, when the original was not. This law therefore affords a strong argument that the examination is admiffible evidence. Again, what was faid by Lord Chief Justice Lee in the cafe of the King v. Colne St. Aldwin's, is a very material authority to prove that this examination was admiffible in evidence. There an order of removal of a bastard made in Wilts was founded on the examination of the mother in Middlefex. Lee, Ch. J. there faid, "the only ma"terial evidence which appears to have been given, was the "examination of the mother, which ought not to have "been admitted; for it is a general rule in evidence that "the depofition of a living witness ought not to be received, "unless it appear that the witness himself could not be produced "to be examined ore tenus; and therefore as the evidence here "given has an original defect, which cannot be fupplied, "this order ought to be quafhed.". It clearly therefore must have been his opinion, that had the mother been dead, or in a ftate, like this pauper, of incapacity to be examined tre tenus, her depofition might have been received in evidence.

The fecond ground on which this has been argued to be evidence is, that it is a declaration under the hand of the pauper. This introduces the general question, whether hearfay evidence from the perfon under whom the fettlement is claimed, can be received. The queftion has been fo often decided, that, in my opinion, it would be fufficient to mention the cafes only: but as different opinions are entertained on the Bench upon the fubject, I fhall go fomewhat more at large into the confideration of it. The weight of the authorities was fo forcibly felt at the Bar, that the Counsel, instead of denying that in any cafe hearsay evi

dence

In

dence could be received, endeavoured to diftinguish the cafes determined from the prefent, and supposed that they were decided on particular circumstances, First, it is faid that there is no cafe in which hearsay evidence has been allowed where the party is alive, and able to be produced. I agree to that pofition: but here the party is quà dead, and not able to be produced. Secondly, that in the case of Nutley, the husband was dead, and there was alfo perfonal knowledge of the wife that her husband had been in the fervice he spoke of. And in the cafe of Greenwich, the hufband was dead, and it does not appear but other evidence might have been produced when the cafe went down to the Seffions again. But let us see what those cases were. the former, the widow depofed that her late husband told her he had hired himself to Smith, and that in confequence of the hiring he went into Smith's fervice, and was turned away a month before the year was up, because he should not gain a fettlement, though Smith did not affign that or any other reason; and the wife further deposed, that she twice faw her husband during the year he ferved Smith. The Seffions, confidering the declarations of the husband as mere hearfay, rejected them as not being admiffible evidence. It was argued that the cafe ought to be fent back to the Seffions, to hear and receive the declarations of the husband; that fuch evidence ought to be admitted in a cafe circumftanced as the prefent; and that, in fact, it was the conftant practice of other Seffions to receive fuch hearfay, On the other hand, it was admitted that the evidence of the woman refpecting the declarations of the husband, was admiffible. And Lord Mansfield faid, that he was fatisfied a clear hiring was proved; and that though the evidence rejected ought to have been received, yet it would only produce more litigation and expence, and muft have the fame effect; he faid he thought the order ought to have been quashed. Mr. Juftice Afton was clearly of the fame opinion; and faid " to be fure the evidence of the woman ought to have been admitted; but standing alone sught to be taken as inconclufive [which latter expreffion must be inaccurately taken; it fhould have been 66 ought not to be taken as conclufive."] The other case of the King v. Greenwich, ftated that the pauper was the daughter of George Wall deceafed, who in his life-time declared to a witness now examined, that he had hired himself for a year, and ferved a year as a livery servant at 72 wages to Captain Saunderfon, who had a house and family at Greenwich and refided there, when not absent on the King's fervice; that his mafter made frequent voyages to Holland,

whither he attended him, that he never was 40 days together at Greenwich, but during his service might be there 40 days at different times. Afterwards it was more fully stated that he did refide 40 days at Greenwich at different times; and the order adjudging the fettlement in Greenwich was affirmed. Now both thefe cafes are directly in point, and there was no evidence which at all tended to prove a fettlement, but hearfay: for in the cafe of Nutley, the wife having feen her husband twice in the service, was no evidence of a hiring for a year; and in the cafe of Greenwich it does appear what paffsd when the cafe went down to the Seffions again; for then it was more fully stated that, the pauper's father refided 40 days at Greenwich at different times; and upon that the order of removal was affirmed on the declaration of the father alone. And when the point was only, whether hearfay evidence could be received, we cannot fuppofe other evidence, which is not ftated, to have been given, which rendered that point immaterial, or varied the effect of it. Thirdly, it was argued that even if the declarations were evidence, yet there must be fome concurrent evidence to fupport it; and this was fuppofed to have been fo held in the cafe of Coln St. Aldwin's: but that cafe was founded on very clear grounds, and not a word faid in it about concurrent evidence, as appears from the note of Mr. Juftice Clive, which I have before mentioned. Neither does any cafe whatever fay that there must be concurrent evidence. Where the question is, Whether the evidence be admiflible or not, it is difficult to conceive what is meant by concurrent evidence; but every cafe on the fubject which at all applies to this point, confiders it as clear that the evidence may be reeived. The two cafes of Nutley and of Greenwich are direaly in point; and they are confirmed by thofe of Creech St. Michael, and of the Inhabitants of the Holy Trinity in Wareham; in the first of which the pauper having run away, a copy of the Regifter was proved, and then a witness fwore that John Every, who was dead, was confidered as the pauper's father, and that he knew Mary Every, who lived in P. and whom he understood to be the pauper's mother, and heard the pauper call her mother: the Seffions held the evidence not to be fufficient, but the Court of Kitg's Bench held that it was. In the cafe of the Holy Trinity, in Wareham, it was proved that the pauper's husband was born in Beer Regis, and proved by the pauper that her husband was abroad beyond fea, and had been two years, if alive; that to her knowledge he lived in the capacity of an hoftler with Mrs. Lee, in Wareham, about two years, where the faw him

brew;

brew; but whether there was any agreement, or hiring, relating to fuch fervice, was not proved; but she had heard her hufband say that he was fettled in the Holy Trinity, Wareham. The Court held that evidence fufficient to prove the fettlement: and the reporter of that case fubjoins in a note, that in cafes where the perfon under whom the pauper claimed, has been dead, hearsay evidence from his widow, or from other perfons, of his declarations respecting his fettlement, have frequently been received; and inftances the cafes of Greenvich and Nutley; but he obferved, that, till that cafe, there had been no inftance where the Court had permitted fuch hearfay evidence to be received in the life of the person under whom the fettlement was claimed. The Reporter who has great merit with the profeffion for his induftry and attention on the fubject of the poor laws, proceeds to fuggeft his doubt of the determination of the Court in that cafe: but, on the best confideration that I can give it, that doubt does not appear to be well founded; for it has long been fettled, that if a perfon be abroad, and not likely to return, or in a ftate incapable of being examined, he is confidered, as to that purpose, as if he were dead. The other cafes which were quoted in the argument, do not apply to the prefent, namely, Rex v. Great Bedwin, Rex v. St. Michael in Bath, Rex v. St. Saviour's, Southwark; and Rex v. St. Sepulchre. But it is worthy of obfervation, that in the c, fe of Rex v. Nutley, it is flated on one fide to be the conflant practice of other Seffions to receive fuch hearsay evidence, and it is admitted on the other fide that the evidence of the widow respecting the declaration of her husband was admiffible. So in the note before-mentioned, on the cafe of the Holy Trinity in Wareham, it is faid that hearfay evidence has been frequently received. If there has been a constant and uniform practice at all the Seffions in the kingdom, I think it requires great confideration before we overturn it; for, befides the great inconvenience, confufion, and inconfiftency, which will be introduced by a new determination, we shall hereafter undoubtedly be fubject to the fame comment and cenfure as Lord Chief Juftice Ryder, in the cafe of St. Bctolph's, without Bifbopfgate, threw on another determination, when he faid, "It does not appear in the cafe of Stretford v. "Norton, whether thefe other cafes were cited, or what was "the particular reafon of the refolution: however if they *were cited and over-ruled, we may, for the fame reason, over-rule that determination." I have inquired what is the ufage at different Seffions, and I find that throughout the Weft of England, in the North of England, and in

other

other places, it has been the conftant practice to receive fuch evidence. I have heard of no one Seffions in which a dif ferent practice prevails; and if it be in univerfal ufe, why fhould we overturn it? If on fuch a question arifing on a fettlement cafe we are to go into firft principles, I know not where we are to stop. It has been understood as pretty clear law, that, in queftions of pedigree, and fome other cafes, hearfay, and reputation, are good evidence; but if the evi dence stated in this cafe be not allowed, they alfo will stand on a very fhallow and flippery foundation. Each has au thority to fupport it; and if that be taken away, I can statė no principle in favour of them. The true line for courts to adhere to is, that, wherever evidence not on oath has been repeatedly received, and fanctioned by judicial determinations, it fhall be allowed: but beyond that, the rule, that no evidence thall be admitted but what is upon oath, fhall be obferved. It would be eafy to ftate or imagine a converfation in which a man gave an account of his own habits and tranfa&tions in life, his refidence, his connections, and relations, which would be equally material in tracing a title, as in investigating a queftion of fettlement: and it would be ftrange if fuch a converfation, after the father's death, fhould be fufficient to enable the fon to recover an estate of 10,000l. a year, and yet should not be fufficient to give his fon a fettlement as a pauper. Hearfay evidence has been received to prove whether land were or were not, par cel of a certain tenement; and was adjudged to be good evidence in Davies v. Pierce, and Holloway v. Rakes. It is conftantly allowed in all cafes of pedigree, though from perfons not of the family, as in Brown v. Shelley, Easter, 1776; and alfo in the cafe of customs; and has been received even in the cafe of fingle facts; as of a marriage, being in orders, and of a prefentation; Harfcot's cafe, Comb. 202; and the Bishop of Meath v. Lord Belfield. In the last cafe, the name of the patron who prefented was omitted in the Regifter, and this Court, on a Writ of Error, held that parole vidence might be received of it; for (faid they) a prefentation may be by parole, and what commences by parole, may be transmitted to pofterity by parole; and that creates a general reputation. A hiring for a year may be by parole; hearfay evidence has been allowed to prove it in all the cafes I have mentioned, and has been rejected or denied in none. I am of opinion that thofe cafes ought to be adhered to, and confequently that the order of Seffions fhould be affirmed.

ASHHURST,