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the parish in which the settlement is adjudged to be, to receive and provide for the pauper. (1)
1. Of setting forth the Justice's authority. It ought expressly to appear, that the magistrates have Justice's juris
diction must jurisdiction to make the order. It should profess, there
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)
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
removal made. 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
forth. 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.
(5) 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 margin, 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) If only one. But this case has been overruled in the following one.
An order was in the following form :
the parish of W. in the said county, and to the
of L. and to each and every of them. Rutland, } Upon complaint of the churchwardens, &c. of to wit. the parish of W. in the said county, made unto us, whose names are hereunto set, being two of His Majesty's justices, &c. in and for the said county.
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 church wardens, &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)
It must appear also, that one of them is of the quo- 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.
(7) Anon., 2 Salk. 473. Chittamton v. Benhurst, 2 Salk. 473. Albrighton v. Skipton, i Str.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
Upon the same principle that the order must show that parish whence 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)
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)
Must state complaint.
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)
Complaint must set forth,
This complaint should expressly set forth two things:
Ist, That party is come to in
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.
(3) Weston Rivers v. St. Peter's, 2 Salk. 492. Rexv. 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.
the officers belong, not having gained a legal settlement there.
2d, That they are actually chargeable to the said parish 2d, Is charge
able. or township.
1st, In one case, an order stating that the pauper and 1st, As to comhis wife do “ endeavour to intrude into the parish, &c.,” ing to inhabit, was quashed, because an endeavour to come in does not to intrude," import that he actually was come in. (1) But in a sub- bad. Ifimplisequent case, where the order ran, 66 whereas J. C. and sufficient.
citly set forth, his wife is come into your parish, endeavouring to settle themselves contrary to law, and are likely to become chargeable, &c.” Per Pratt, C. J. — 6 I do not think it necessary to show they came in, but only an endeavour to settle ; and that may be, where the party never came in, as the case of children born in one parish, when the settlement of the parent is in another. But if it was necessary, it is implicitly set forth in the complaint, which is sufficient.”(2)
So where an order stated that the paupers “lately came, and intruded themselves into the said parish," it was objected that it did not appear that the paupers were then in the parish, i.e. at the time of the removal. But it was answered, that the order states, and the magistrates adjudge it to be true, that the paupers are likely to become chargeable to the parish, which could not be if they were not in the parish at the time. (3)
But as the complaint is the foundation of the jurisdic- Justices can tion, the justices cannot remove more than are complained remove mo of. An order, stating, “ whereas J. S. had intruded into complained of. the parish of A., and is likely to become chargeable; these
(1) Rex v. Grafsham, Sett. &Rem. 16. Although the order proceeded to state " that he is likely to become chargeable,” as to which, see Rex v. Binegar, infra, (3).
(2) Rex v. South Marston, 1 Str. 189. But see the effect of 35 Geo.III. post, 220.
(3) Rex v. Binegar, 7 East, 577.