order of removal was made. He had not, therefore, done what was requisite in order to give him a settlement by the renting of a tenement, according to the provisions of the 59 Geo.III. c.50. The order was, therefore, a valid order at the time it was made, and the subsequent payment of the rent cannot effect it. I am, therefore, of opinion that in this case, the pauper, by having applied for relief from the parish in July 1823, and having received that relief under an order of magistrates, was then actually chargeable, and therefore removable, under the 35 Geo.III. c.101.; and I am also of opinion that at the time when the order of removal was made, he had not acquired any settlement in the parish of St. Botolph, because he had then neither paid a year's rent, nor done any act which in point of law can be considered as equivalent to payment.

Holroyd J. I think also that this order of removal is valid. A party, in order to gain a settlement by renting a tenement, is required by the59 Geo. III. c.50. to do certain things which were not requisite before. One of the things required is, that there should be a payment of one year's rent by the tenant to the landlord. Here the year's rent had become due, and payable at Midsummer, and on the first of August the landlord gives the pauper a fortnight's time to pay it, and before it is actually paid, or before the pauper had done any act which the law considers equivalent to payment, the order of removal was made. At that time, therefore, the pauper had not gained any settlement in the parish of St. Botolph, and it is unnecessary, therefore, to consider whether the finding of the justices, that the annual value of the tenement was less than 10%., is material or not. I am of opinion, that the subsequent payment of the rent does not, by retrospective operation, give the party a settlement in the parish of St. Botolph at the time when the order of removal was made. I fully agree with my brother Bayley, that since the 35 Geo.III. c.101. it is not necessary to remove paupers actually chargeable within forty days after they have come to settle; but that they may be removed at any time after they have become so chargeable.

Littledale J. It is unnecessary in this case to decide the question, whether in opposition to the contract of the parties, any other value than the rent actually payable can be set up, because, since the statute of 59 Geo.III. c.50. no settlement can be gained until a year's rent is actually paid. Now in this case the order of removal was made on the fifth of August, and the year's rent was not paid until the fourteenth; the subsequent payment of the rent cannot, by retrospective operation, give the pauper a settlement at the time when the order of removal was made, and, therefore, the pauper had not gained any settlement at that time, and, having then become actually chargeable, he was properly removed; the order of sessions must therefore be confirmed.

Order of Sessions confirmed. (1)

(1) Rex v. Ampthill, Hil. Sitt. 5 Geo. IV. MSS. B. & C. Abbot C. J. absent. This case includes so many considerations upon 35 Geo.III. c.101. and 59 Geo. III. c.50. that it was thought useful to insert it at length, as given in Messrs. Barnewall and Cresswell's MSS.

206

Poor how removed.

Three modes.

CHAP. XXIX.

Of removing the Poor.

As soon as parish officers have ascertained what poor they are empowered to remove, when they become an actual burthen to the parish, their next duty is to adopt proper measures for their removal.

The modes of removal are three: 1st, By an order of removal under 13 & 14 Car.II. c.12. to the place of their last legal settlement. 2d, The removal of vagrants by a pass. 3d, By a power said to be vested in the justices to remove in some particular cases, not specifically provided for by statute.

Application to

SECT. I.

Of Orders of Removal.

WHEN a person becomes chargeable to the parish or remove. township, its officers (for none else can do it) (1) should Parish officers' apply to the magistrates for an order to remove him. The complaint. complaint may be laid before a single justice. (2) It is the foundation of the magistrates' jurisdiction (3), and need not be upon oath. (4)

Notice to pauper.

The pauper ought to have notice of this complaint, and 'be heard (where it can be done) before his removal (5); for the court will grant an information against magistrates making an order, if they have omitted to summon him through wilful neglect. (6)

(1) Per Holt C. J., Weston Rivers v. St. Peter's, 2 Salk. 492. (2) Rex v. Westwood, 1 Str. 73. Rex v. Stanstead, 2 Salk. 488. (3) Rex v. Harely, Andr. 361. Weston Rivers v. St. Peter's, 2 Salk. 492. supra. (1).

(4) Rex v. Standish, Burr. S. C. 150. Rex v. Southwold, ib. 140. (5) Anon., Comb. 478. 2 Bott, 637. Pl. 666. Per Buller J., Rex v. Bagworth, Cald. 179. 2 Bott, 640. Pl. 674.

(6) Rex v. Wykes, 2 Str. 1092. Andr. 238. Rex v. Tavistock, 3 D. & R. 427.

2 Bott, 638. Pl. 670.

cessary.

The head of the family should be examined when it When unnecan be done conveniently, but it is sometimes unnecessary; as where a mother is called to prove her son's settlement acquired by hiring and service, although the son himself might have been called for the purpose (1); sometimes impossible, as if he be insane (2), or cannot be found (3); so an infant of tender years cannot be examined. (4) But, to warrant the removal, it is by no means necessary that the evidence should be in all respects complete and conclusive of the settlement. If it be legal in its nature, and such as affords a fair presumption of the party's settlement, that is sufficient, when uncontradicted. It is enough, therefore, when the head of a family has absconded, or the paupers are incapable of giving evidence, to summon some relation, or other person, acquainted with the settlement of those who are to be removed. Thus, where the father of children under seven years old has absconded, the examination of the grandmother will be sufficient to found an order of removal. (5) So an adjudication of the settlement of husband and wife may be made upon the examination of the wife only (6); and that, although it does not appear that the removing parish has used due diligence to find the husband. (7)

(1) Rex v. Yspytty, 4 M. & S. 52.

(2) See Rex v. Eriswell, 3 Term Rep. 707.; ante, Vol. I. chap.xx. sect. vi.

(3) See Rex v. Stone, 6 Term Rep. 56. 2 Bott, 27. Pl. 49. Rex v. Binegar, 7 East, 377.

(4) Per Buller J., Rex v. Bagworth, ante, 206. (5). Rex v. Everdon, 9 East, 101.

(5) Rex v. Bucklebury, 1 Term Rep. 164. But the justices seem to have no power to compel their appearance, if they think proper to disobey the summons.

(6) The wife only was removed. It was objected, that the order was illegal on this account, as the wife could only know the fact of her husband's settlement by hearsay. But by Lord Ellenborough, C. J., this does not follow; she may know the fact as well as any other witness. Rex v. Binegar, supra, (3); and see Rex v. Yspytty, supra, (1). Rex v. Tavistock, 3 D. & R. 427.

(7) Rex v. Stone, supra, (3). In that case the pauper's father was examined on the appeal.

Magistrate's

summons.

Warrant if pauper refuses to appear.

Order must be

testimony on

oath. Order made upon an affidavit, taken before other justices, bad.

The next proceeding, after information by the parish officers, is, that the magistrate grant a summons, requiring the party to appear before two justices; for although the complaint of a pauper's settlement may be to one justice, the examination ought to be by those two who sign the order. (1)

If upon service of this summons the pauper refuse to come, a warrant may be granted to bring him before two justices, who are to examine and remove. (2)

The justices who made the order, must have proceeded made by oral formerly in all cases upon viva voce testimony, taken before themselves in each other's presence (3), by examination upon oath. An order made by two justices of one county upon an examination taken before two of another, and transmitted to the former with an affidavit, verifying that it was duly taken, was held bad, the person examined being still alive. (4) Yet it seems as if it might be used as concurring evidence. (5)

49 Geo. III. c. 124.

But it is now provided, by 49 G.III. c.124. s.4. "That whenever it shall happen that any pauper is by age, illness, or infirmity, unable to be brought up to the petty sessions to be examined as to his or her settlement, it shall be lawful for any one magistrate acting for the district, where such pauper shall be, to take the examination of the said pauper, and report the same, to any other magistrate or magistrates acting for the said district, and for the said magistrates, upon such report, to adjudge the settlement of

(1) Rex v. Wykes, 2 Str. 1092. ante, 206. (6). Rex v. Howarth, 2 Bott, 640. Pl. 673. It is stated in this last case, that in Rex v. Wykes, an information was granted against three justices for making an order, hree having signed it, and only one having examined the party.

(2) Per Gould J., Ware v. Stanstead, 2 Salk. 488.

(3) Rex v. Howarth, 2 Bott, 640. Pl. 673. But see Rex v. Everden, 9 East, 101. and 49 Geo. III. c. 124. infra.

(4) Rex v. Coln St. Alwin, Burr. S. C. 136.

(5) Per Lee C. J., ib.; and see Rex v. Long Critchell, post, 213. (2).