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An order of removal is usually under hand and seal. This seems necessary, as it is called “a warrant to remove,” in 13 & 14 Car. II. c.12. and 3 W. & M. c.11., and the better opinion seems to be, that all warrants should be thus executed. (1)
It is likewise usual and proper to specify the day upon which the order is signed. But this omission does not vitiate it, unless some damage is proved to result from the neglect. An order of removal purported to be executed thus : “given under our hands and seals, the day of April, in the year of our Lord 1804 :" upon appeal, the sessions were of opinion, that the day of the date being left in blank, rendered the order defective; and that they had no power to amend it, or receive evidence of its date, or of the time of the removal: and they quashed the order. But the Court of King's Bench quashed their order, and confirmed that made by the two justices. (2)
As an order is a judicial act, requiring the magistrates' mutual concurrence, it must be determined upon while they are together, and should be signed by them in each other's presence. (3) But if an alteration is made in it by one magistrate in the other's presence, after it is signed by both, and before delivery to the parish officers, although without being re-sealed and re-delivered, the order is not therefore bad. (4)
When only voidable.
Even if it be signed by two magistrates away from each other, while one of them is out of his jurisdiction,
(1) i Hal. H. P. C. 577. 3 Hawk. book 2. chap. 13. p. 181. Ed. 7. 2 Inst. 591. Dalt. Just. Peace, chap. 169. p. 579. Ed. 1727. See also Rex v. Woodsterton, post.
(2) Rex v. Brimpton, Hil. 45 Geo. HI.
(3) Rex v. Howarth, 2 Bott, 640. Pl. 673. But in this case, one justice signed the name of another who was not present at the examination; and that it may be sufficient if they agree upon the order together, although they sign when separated, see ante, Vol. I. 54. n. (8).
(4) Rex v. Llanwinio, 4 Term Rep. 473.
it renders the order only voidable upon appeal, and not
Before observing upon the technical parts of this kind General rules of orders, it may be necessary to premise some general respecting rules respecting them.
Ist, The justices cannot remove more than one family, ist, Only one by one order. Because, not only the parishes, but the family remov
. parties have a right to appeal: and as between parishes, 8 & 9 W.III. c. 30. gives costs to the parish in whose favour the appeal is determined ; and now the appeal would be determined in favour of neither and of both: it cannot be said the order is reversed, because it stands good as to part, and cannot be said to be confirmed, because it is not held good as to the whole; and further, the party might chuse to appeal, which would draw over the other matter, in which the parties on all sides acquiesce. (2)
2d, They cannot make it provisionally, as “ to continue 2d, It must not till the next sessions (3);” or “except the party find be conditional. security to be allowed by them,” i. e. the justices, for they cannot make a conditional order; it is an adjudication, and ought to be absolute : they have nothing to do with the security. (4)
(1) Rex v. Stotfield, 4 Term Rep. 596. ante, 144. (4). But see Rex v. Hamstall Redware, 3 Term Rep. 380. ante, Vol. I.
(2) Per Eyre and Fortescue Js., Pratt C. J. hæsitante. Chewton v. Compton Martin, 1 Str. 471. This seems clear where the removal is to different parishes. But different parts of the same family may have different settlements, and it is daily practice to affirm an order in part and quash it as to the remainder. In Wangford v. Brandon, Carth. 449. one order removed three poor men and their families, and this objection was not taken, although several others were made to its form. See also Anon. 2 Salk. 482. which seems S.C. But in Comb. 478., which seems also to be a report of the same case, it is expressly observed, “ that jusLices may make one order to remove several families, and upon appeal zo sessions they may reverse it quoad one.”
(3) Braitar v. Usley, Cas. Sett. &Rem. 53. (4) Oakham v. Whittlesea, 11 Mod. 171.
3d, Must be to
3d, They have no authority to remove, except to a parish or district having officers, and maintaining its own poor. They cannot remove to an extra-parochial place not having overseers (1); nor to an hamlet within a parish, if in the same situation, although it does not contribute to the relief of the poor of the parish (2); nor to a large and populous district, part of a parish, maintaining its poor in common therewith, and without any separate establishment of its own. (3)
4th, Where parish has officers for one district, and not for another.
4th, But where a parish lay in the counties L. and W. and an overseer was appointed for that part which lies in W. and never had been for that in L., but the same overseer usually acted in the maintenance of the poor throughout the whole parish, it was held, that a removal might be made to that part of the parish lying in L. where the pauper had gained a settlement by hiring and service, and that she might be delivered to the officer appointed for W. For the part in L. cannot be considered as extraparochial and without overseers, the churchwardens being overseers to this purpose. (4) But if the divisions of a parish thus situated have distinct officers and rates, and make distinct accounts, then each division is to be considered as a several parish, and the removal must be to that district in which the settlement is gained. (5)
5th, Not two orders.
5th, Two justices cannot make an order removing the same parties while an appeal against a prior order is pending at sessions. (6)
6th, The order must be original, and not subsidiary to another, i. e. it cannot be made by way of executing a prior order of removal. A man is removed from the parish of A. to the parish of L. He goes from L. to P. who got several orders from two justices, by way of execution of the first order, to remove him from P. to L. But all of them were quashed, because P. ought to have made an original complaint, and upon that have got an order, and not have grafted upon the order of removal from A. to L. though they might have used that as evidence (1), to induce the justices to make such original order. (2)
6th, Not sub-
(1) Ante, 158.
7th, An order of removal is usually reversed only by 7th. appeal, “ for the order of two justices is a determination of the right against all persons till it be reversed.” (3)
8th, But an appeal is unnecessary when the order is a sth. mere nullity, or when the justices making the order want jurisdiction (4), or remove to a village or other place which does not maintain its poor separately. (5)
9th, If the justices have made their order by surprise, 9th, May suthey may issue another, reciting that they were surprised; persede order
obtained by and suspending the first order, and commanding the parish surprise. officers to return it to be cancelled; for this prevents the charge of an appeal. (6)
10th, Also a parish in whose favour an order is made, 10th. may, after it is executed by the pauper's removal, determine to abandon it without waiting to have it quashed upon appeal, if they find upon further information that it cannot
(1) See Rex v. Coln St. Alwin, ante, 208. (4). (2) Rex v. Long Critchell, 2 Salk. 489.
(3) Per Holt C. J., Chalbury v. Chipping Farringdon, 2 Salk. 488. Also Malendiene 0. Hunsdon, Fol. 273. Rex v. Leverington, Burr. S. C. 276.
(4) Rex v. Chilvers Coton, 8 T. R. 178. ante, 144. (3). post, 215. (5) Rex v. Swalcliffe, ante, 212. (5). post.
(6) Pancras v. Rumbold, 2 Bott, 624. Pl. 638. In this case the supersedeas issued three days after the order, and it appears, from the form of the supersedeas and what is said by the court, to have issued before the order was served, or at least before an appeal was lodged against it, or the time for appealing expired. See Rex v. Smith, 2 Bulst. 343.
be supported; for there can be no objection to a party's abandoning a judgment intended for his own benefit. And where such an order is cancelled by the justices who signed it before the time for appealing, with the consent both of the removing parish and that removed to, a subsequent order of removal to a third parish is good. (1)
Of the Form of an original Order of Removal.
Form of an An order of removal is in effect likewise an order of original order. maintenance; for it not only directs the party to be re
moved to the place of his settlement, but also that he shall Two kinds. be received and provided for there. Such an order may
be either original, i.e. the first made to remove the persons mentioned to the place thereby adjudged to be their settlement, or it may be to remove them again, either to or from thence. This distinction must be noticed, as something additional is necessary to the form of the order in this latter case.
The following particulars are essential to the validity of an original order of removal. 1st, It must set forth the authority of those who take upon themselves to make it, 2d, The complaint of the parish officers, which is the foundation of the order. 3d, The justice's examination or inquiry into the truth of the complaint. 4th, A description sufficiently certain of the parties. 5th, An adjudication, or judgment upon the truth of the complaint, and of the pauper's settlement. 6th, It must require the parish officers of the complaining parish to remove, and those of
(1) Rexo. Llanrhydd, Burr. S.C. 658. ante, 144.(2). Rex v. Diddlebury, 12 East, 319. S.P. In this last case, Chalbury v. Chipping Farringdon, 2 Salk. 488. was cited to show that an order after execution being in the nature of a judgment executed, could only be reversed by appeal. But it was observed, that in that case there was no consent of the party in whose favour the order was made to vacate it. See also Rex o. Jus. tices of Norfolk, 5B. & A. 484.