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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 o. Ampthill, Hil. Sitt. 5Geo.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.
Poor how removed.
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.
Of Orders of Removal. Application to When a person becomes chargeable to the parish or
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.
(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. 2 Bott, 638. Pl. 670. Rex v. Tavistock, 3 D. & R. 427.
The head of the family should be examined when it When unne
cessary. can 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, lo 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 o. Binegar, 7 East, 377.
(4) Per Buller J., Rex v. Bagworth, ante, 206. (5). Rex v. Everdon, 9 East, 101.
(5) Rex v. Bucklebury, i 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). Res v. Tavistock, 3 D.&R. 427.
(7) Rex v. Stone, supra, (3). In that case the pauper's father was examined on the appeal.
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)
Warrant if If upon service of this summons the pauper refuse to pauper refuses to appear.
come, a warrant may be granted to bring him before two justices, who are to examine and remove. (2)
Order must be The justices who made the order, must have proceeded made by oral testimony on
formerly in all cases upon viva voce testimony, taken before oath. themselves in each other's presence (3), by examination Order made upon oath. An order made by two justices of one county upon an affi.
upon an examination taken before two of another, and davit, taken before other transmitted to the former with an affidavit, verifying that justices, bad. it was duly taken, was held bad, the person examined be
ing 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.
the said pauper, to all intents and purposes as if the said pauper had appeared before two magistrates.” (1)
By 59 Geo. III. c. 12. it is enacted, “That it shall be lawful 59 Geo.III. for any justice of the peace to take in writing the examination Examination on oath of any person having a wife or child, who shall be a of prisoners. prisoner in any gaol or house of correction, or in the custody of the keeper of any such gaol or house of correction, or who shall be in the custody of any constable, or other peace officer, by virtue of any warrant of commitment touching the place of his or her last legal settlement: and such examination shall be signed by such justice taking the same, and shall be received and admitted in evidence as to such settlement, before any justice, for the purpose of any order of removal, so long only as the person so examined shall continue a prisoner.”
refuses to answer.
If, when the pauper is examined, he refuses to answer Commitment, proper questions put to him in the course of his examina- if pauper tion, the justices may commit him “until he shall answer.” For as they have a right to examine him touching his settlement, it would only be a shadow of a right, unless they have a power likewise of enforcing that examination by committing the pauper for refusing to be examined. (2) Form of comThe form of such commitment ought to be “ until he mitment. shall answer, &c.". For it is like the case of a commitment by the commissioners of a bankrupt, where the party committed must send word when he will submit, and answer the questions. (3)
If the justices are satisfied upon the pauper's examina- Order when to tion, and such other evidence as is adduced before them, be made. that he has intruded into the parish, and is become chargeable there, being legally settled in some other place, they ought to make an order for his removal thither.
(1) And see as to the examination of soldiers, &c. 1 Geo.IV. c.19. 6. 70. ante, Vol. I.
(2) Per Ashhurst and Buller Js., Rex v. Jackson, 1 Term Rep. 653. But the court came to no decided opinion.
(3) Per Buller J., ib.; and see Mayor of Northampton's case, Carth.152., post, chap. xxxv. sect. 3. VOL. II.