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) Form of an Two kinds. SECT. II. Of the Form of an original Order of Removal. AN order of removal is in effect likewise an order of original order. maintenance; for it not only directs the party to be removed to the place of his settlement, but also that he shall 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) Rex v. 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 v. Justices of Norfolk, 5 B. & A. 484. the parish in which the settlement is adjudged to be, to receive and provide for the pauper. (1) I. Of setting forth the Justice's authority. It ought expressly to appear, that the magistrates have Justice's jurisjurisdiction to make the order. It should profess, there- diction must appear by two fore, to be made by two justices of the peace. An order justices. stating only, "whereas complaint has been made unto us," without reciting their authority (i. e. that they were justices of the peace), was quashed as bad; and although in an appeal from the order (2) they were mentioned to be justices, yet that will not help, for they might be justices then, and not at the making of the order. (3) removal made. forth. It must appear likewise, that they are justices of the Of the county peace for the county in which the place from whence the from whence paupers are to be removed is situate; for by 13& 14 Car.II. How to be set c.12. the jurisdiction is given to the justices of the county where the pauper comes to inhabit. Thus, where no county was mentioned in the margin of the order, and it was directed to the churchwardens and overseers of S. in the county of Middlesex, and to those of C. in Buckinghamshire, and the magistrates only styled themselves in the body of the order, justices of the peace "for the county aforesaid," it was quashed. For as two counties were previously mentioned, it is doubtful of which they are magistrates; whereas it should appear, that they were justices of B. where the parish is situate, from whence the removal was made. (4) It was once held, that although a county was mentioned in the margin, it did not help the (1) See the form of the Order, Burn's Just. tit. Poor Removal. The order is directed to the parish officers of the removing and those of the receiving parish. (2) i. e. Ut videtur, in the order of sessions, which, upon appeal, confirmed that of the justices; or possibly in the appellant's notice of appeal. (3) Walton v. Chesterfield, 5 Mod. 322. Rex v. Uplin, Cas. Sett. & Rem. 27. (4) Rex v. Stepney, Burr. S. C. 23. Rex v. Chilvers Coton, 8 Term Rep. 178.S.P. See also Rex v. St. Stephenson, 1 Barnard.K. B. 177—196. County men defect, if two counties were mentioned in the body of the tioned in mar gin, and two in order, notwithstanding they described themselves to be body of order. justices "in and for the said county," for these words have no necessary reference to that county in the margin. (1) But this case has been overruled in the following one. An order was in the following form : If only one. County of R. to wit. To the churchwardens, &c. of the poor of the parish of W. in the said county, and to the churchwardens, &c. of the poor of the parish of St. Mary, in the borough of L. in the county of L. and to each and every of them. Rutland, Upon complaint of the churchwardens, &c. of This was held good; for "county of R." being in the margin, "parish of W. in the said county" must mean the county of R. to give the word "said" any meaning; and, as the words, "justices of the peace for the said county," follow immediately, and must therefore also have reference to the county of R., this is the plain grammatical construction of the words themselves. (2) (1) Rex v. Moor Critchell, 2 East, 66. The order set forth, "whereas complaint has been made to us by you the churchwardens, &c. of D. in the county of Wilts aforesaid," [that from whence the pauper was removed] "unto us, whose hands and seals are hereunto subscribed and set, being two of his majesty's justices of the peace in and for the said county, &c." It was argued, that the words "justices of the peace in and for the said county," must have reference to the county in the margin, which is Wilts. 2dly, It has reference, in grammatical construction, to the last antecedent, which is also Wilts. But the court quashed the order. It was further determined that the sessions had no power to amend this defect under 5 Geo. II. c.19. ib. See also Great Bedwin v. Wilcot, 2 Str. 1158. But see the observations of Lord Ellenborough, Bayley and Abbott Js., on that case. Rex v. St. Mary, Leicester, 1 B. & A. 327. (2) Rex v. St. Mary, Leicester, 1 B.&A. 327. Holroyd J. added, "That as no other justices except magistrates of the county of R. could by law make the order, the court will intend that the words 'said county' have reference to the county where the magistrates had jurisdiction, for that construction which supports, and not that which destroys the instrument, may fairly be adopted, ut res magis valeat quam pereat." Where no county is mentioned in the body of the order, and there is one in the margin, that will do; for the margin is to be considered as part of the order, and a plain clear reference to it is sufficient. (1) It is said not to be sufficient that they are stated to be "justices of the county," omitting the words, " of the peace." (2) And if it only state them to be "justices in the county," and not of or for it, the exception is fatal (3); for they may be magistrates residing in the county, and not in the commission there. If it mention, however, the county by its common, instead of its proper legal appellation, as if Shropshire is put instead of Salop, that is sufficient (4); and the court will take notice of the divisions of a county. Thus, where (Lincoln, Holland) was inserted in the margin of an order, it was understood to mean, that Lincoln is the county, and Holland the division. (5) When magistrates state themselves "justices for the borough, or town and parish of A.," it is not bad, for both town and borough are coupled with the parish for which the order is made; and they sufficiently appear to be justices of either of those places for which they were empowered to make this order. (6) quo It must appear also, that one of them is of the Of the quo. rum (7), but it need not state they are of the division rum. whence the removal is to be made. (8) (1) Rex v. Bourne, Burr. S. C. 43. Rex v. Ufculm, ib. 138. Rex v. Holbeck, in Leeds, Burr. S. C. 198. (2) Rex v. Upton, Cas. Sett. & Rem. 27. (3) Rex v. Owlton, 2 Salk. 474. Rex v. Dobbyn, 2 Salk. 474. S. P. (4) Rex v. Madeley, Burr. S. C. 202. (5) Rex v. Bourne, supra, (1). (6) Rex v. Andover, Cald. 373. (7) Anon., 2 Salk. 473. Chittamton v. Benhurst, 2 Salk. 473. Albrighton v. Skipton, 1Str.300. But see 26 Geo. II. c.27. and 7 Geo.III. c.21. (8) Anon., 2 Salk. 473. supra, (7). Eliz. Ashley's case, ib. 480. Vol. I. 53. n. (9). Must state the parish whence Upon the same principle that the order must show that removed, to be the justices are magistrates of the county, it must likewise in the county. appear, that the parish from which the pauper is to be removed, is situate in that county of which they state themselves justices. An order had Gloucester in the margin, but did not, in the recital, say that Dunsborns Abbots (the parish from whence the pauper was removed) is in the county of Gloucester, or in the county aforesaid, and was quashed for this defect. (1) Must state complaint. Complaint must set forth, 1st, That party is come to inhabit; II. Of stating the Complaint. No one can disturb a man coming into a parish, but those parochial officers who have authority to do so. (2) The order therefore must state, that it is made " upon complaint of the churchwardens, &c. ;" that being the foundation of the justice's jurisdiction. (3) If it profess to be made upon hearing the different allegations and proofs, that is not tantamount, (4) But if it be directed to the officers of the two parishes, and state "the complaint to be made by you," without saying which, this is sufficient, for it must necessarily be intended to be made by the parish aggrieved by the residence; because, if both complain, it must be upon complaint of the right parish. (5) This complaint should expressly set forth two things: 1st, That the parties who are sought to be removed, are come to inhabit in the parish or township to which (1) Rex v. Preston, 2 Const. 310. Pl. 351. (2) Per Holt C.J., Weston Rivers v. St. Peter's, 2 Salk. 492. ante, 206. (3) Weston Rivers v. St. Peter's, 2 Salk. 492. Rex v. Harely, Andr.361. ante, 206. (3). Great Bedwin v. Wilcot, 2 Str. 1138, (4) Shackford v. Northbovey, Sett. & Rem. 33. (5) Spalding v. St. John Baptist, Fol. 267. Horsham v. Hendfield, Burr. S. C. 24. See also Rex v. Kidderminster, 11 Mod. 265. |
