Sivut kuvina
PDF
ePub

Two objections were taken to an order of removal, 1st, That the parish of E. is at first mentioned in it; and then it goes on," and has lately intruded himself into your said town of E." So that it is uncertain whether E. be a town or a parish. But this objection was over-ruled as being over-nice. The 2d objection was, That the pauper is only alleged to be "likely to become chargeable there. Which does not allege "that he was likely to become chargeable to the parish." Denison J. and Forster J. (1) over-ruled the objection. But Wright J. took it that the word "there" did not necessarily import that the pauper was likely to become so to the parish. (2)

last settle

ment.

2d, It must adjudge the place to which he is removed 2d, Place reto be the place of the pauper's last legal settlement, except moved to the where the removal is back to a parish giving a certificate; for the justices need not adjudge it in that case. (3) "Whereas complaint has been made to us that J. D., with his wife and children, came from his place of abode and last legal settlement in B. to A., we therefore require you, &c." This order was quashed as naught; for there is no adjudication which was the place of his last legal settlement, but only a complaint that B. was. (4) "We order Removed to B. him to be removed to A, as the place of his last legal settle- "as the place of his last legal ment," bad, as there is no adjudication. (5) "That the settlement,' pauper was legally settled at B., according to their know ledge," bad, for he might be settled elsewhere and the justices not know it. (6) Or, " that B. is, as we are credibly informed, the place of his legal settlement," bad. (7)

"Whereas complaint has been made unto us that E. F., wife of U. F., is lately come into the parish of St. Giles',

(1) The Chief Justice was absent.
(2) Rex. v. Eakring, Burr. S. C. 320.
(3) Malden v. Fletwick, 2 Salk. 530.

(4) Bury v. Arundell, 2 Salk. 9.

(5) Rex v. Westwood, 1 Str. 73.

(6) Reg. v. St.Mary Ottery, Sett. & Rem. 32.
(7) Trowbridge v. Weston, 2 Salk. 473.

bad.

On oath it ap-
husband was
"last legally
settled, &c."
bad.

that her

Adjudication

tlement.

and is likely to become chargeable to the same; and whereas, on oath made by the said E. F., it appears that her husband was last legally settled at H.; these are therefore, &c. quashed, because there is no judgment of the justices concerning the last legal settlement, but only the oath of the woman. (1)

An order adjudged "that J. S. was settled at B., and, of widow's set- therefore, the justices remove his widow and children to B.;" quashed, for the wife may get a settlement after the death of her husband. (2)

Removal of

wife and chil

dren to hus

band's settlement, must adjudge them his.

If children above seven,

An order removed F. S. and F. her daughter, about four years old. E. her daughter, about two years and a half old. It further recited, that it appeared to the justices, upon the oath of F. S., "that her husband, G. S., was legally settled in the parish of M.;" quashed, for though it does not appear that the woman is a widow, and the wife and children must follow the husband's settlement, yet the children are not removed as his children, nor the woman as his wife. (3)

The exception to an order was, because the justices set must adjudge forth that M. was the last legal settlement of the father, their place of therefore they send the son there, and it appeared that he settlement, adjudging it to was ten years old. It was quashed, because there was no be that of their adjudication of the son's settlement, and it is not of absofather, insuffi- lute necessity that the father's settlement should be his. (4) cient. Adjudg But if being made for the removal of certain children without their parents, it adjudges the parish to be the last legal it to be that of settlement of those children by name, whom it states to the parent. be under the age of seven, it need not adjudge it to be the settlement of their father. (5)

ing their own settlement,

need not state

It was objected to an order adjudging that the paupers

(1) Rex v. Hackney, 2 Salk. 478. The words "to us" were omitted after "it appears."

(2) Egburn v. Hartly Wintly, 1 Sess. Cas. 45. Pl. 691.

(3) Rex v. Mansfield, Burr. S. C. 76.

(4) Reg. v. Middleham, Fol. 271. See ante, 224, &c. (1).
(5) Rex v. Bucklebury, 1 Term Rep. 164.

were last legally settled in M., that this is no adjudication of a present settlement. But by Lord Ellenborough C. J. It refers to the time of the complaint made, and the court cannot intend an intermediate settlement between the hearing of the complaint and the making of the order. (1)

An order adjudged, "the last legal place of the said H. Omission of is at W." omitting the words of settlement, and was quashed. the word 66 settlement," Per Curiam. Here is no adjudication of a settlement, and fatal. these orders are never to be made good by implication. (2)

cate.

An order which states that the pauper came into the How far must parish under a certificate, need not set forth that it was state certifiallowed by two justices, at least if it go on to adjudge his settlement to be in the parish by which it was granted. (3)

As to the description of the parties, both in the complaint and adjudication, see ante. (4)

VI. Of the Direction of the Order.

to

Require officers of complaining parish to remove. Of settlement parish to receive

for.

THE remaining essential circumstance is the fruit or effect of the order, which is to require the officers of the complaining parish to remove the pauper; and, those of the place in which the settlement is adjudged to be, to receive and provide for him. If, therefore, it does not say and provide which is to convey, and which is to receive, the persons be removed (5); or if it directs both to remove and re- which to receive (6), it is bad; and it is à fortiori defective, where it is directed solely to the officers of the parish in which the settlement is adjudged to be, and requires them to convey the pauper thence; for the justices ought, and can only

(1) Rex v. Binegar, 7 East, 377. See Rex v. Honiton, ante, 226. (2). (2) Rex v. Warnhill, 2 Sess. Cas. 91. ante, 226. (4).

(3) Reg. v. Newton, 1 Sess. Cas. 161.

(4) 223. IV., and that the power of adjudication and removal is limited

by the complaint, ante, 218.

(5) Binfield v. Banstead, 11 Mod. 268.

(6) Bedwitch's case, Comb. 525.

Not stating

ceive, and
vey, bad.
Or if it directs
move and re-

which to con

both to re

ceive.

Quære, if good, when directed to a constable

to remove.

Mistake in

order the parish officers, where the intrusion is made, to make the removal. (1)

It seems, that an order directed to the constable of a parish, commanding him to remove a pauper, is well enough, if he remove under it. For if a justice direct a warrant to a person by name, who is no officer, he is not bound to obey it; but if he do, and it is a matter within the jurisdiction of a justice, the warrant will bear him out. (2)

A mistake in the name of the parish to which the rename of parish. moval is made does not vitiate the order, where that used is sufficiently descriptive, according to common intendment; more especially if the parish officers have recognised its sufficiency by any act of their own, as by receiving the pauper, or appealing to the sessions against the

order.

A pauper was removed from the parish of Topsham, by an order addressed "To the churchwardens and overseers of the poor of the parish of Poole, or town and county of Poole;" and that parish was described in the same terms in that part of the order which adjudged the settlement to be there. Upon appeal to the quarter sessions, it was objected, that the town and county of Poole consisted but of one parish, and that the name of that parish was St. James's, in Poole. The sessions over-ruled the objection, and the court of king's bench were of the same opinion. They said there was no objection to this description of the parish of Poole, although the name of its tutelary saint was omitted; there being but one parish in the town and

(1) St. George's v. St. Olave's, 2 Salk. 493.

(2) Wangford v. Brandon, Carth. 449. In this case, three poor men and their families were removed by the same order, which was ultimately quashed for another defect. But quære, whether a distinction may not exist between an order or warrant of removal, and a warrant founded upon it? However, in 13& 14Car.II. c.12., and 3 W.&M. c.11., that which is now called an order of removal, is denominated a warrant of removal.

county of Poole, and Poole being the common name of the place. And it was added, that the parish officers had themselves considered this description as sufficient to call upon them to appeal to the sessions against the order, by whom the objection to the misnomer had been overruled. (1)

But if the name of the parish removed to is altogether mistaken, as if the parish of Woking is called Waking, it seems as if it would be bad; at least, where the officers of the parish have not acknowledged the description to be sufficient by some act of their own. (2)

The parish of Kirkby Stephen consists of ten townships, of which the township of Wharton, and the township of Kirkby Stephen, are two. A pauper was removed from the parish of Wharton to the township of Kirkby Stephen, by an order directed to the officers of the parish of Kirkby Stephen, and his settlement was thereby adjudged to be

(1) See Vowles v. Miller, 3 Taunt. 140., that it is sufficient in trespass to use the name of the parish commonly used; also Rex v. Topsham, 7 East, 466. In Rex v. St. Nicholas, in Harwich, the certificate was directed "To the churchwardens and overseers of the poor of the parish of Harwich, near Dover Court, in the county of Essex." The case stated by the sessions, found that the proper name of the parish was St. Nicholas in Harwich, and that there is no such parish as that of Harwich, near Dover Court, and that it did not appear to them that the borough or corporation of Harwich contained any more parishes than one. The court of K. B. was of opinion, that supposing this to be a mis-direction, the certificate was good notwithstanding, because the 8&9 W.III. c.50. does not require any direction of a certificate, and a mis-direction is as a void direction, ante, 173.(5). But ChappleJ., in giving his opinion, added, "Besides, if a direction were necessary, I should doubt whether this mistake of the name would make it bad. I remember a case of a carrier, in Lord Raymond's time, where the plaintiff recovered, though there was no such parish as Wicomb, the true name being Chipping Wycomb." Burr. S. C. 176. As to a mistake in the local name of a county in an order, see ante, 215., and how far a misnomer may be amended by the justices at sessions, under 5 Geo.II. c.19. see post, chap. xxxviii. sect. 2. and seq.

(2) See Rex v. Oswell, 2 Salk. 472. tamen quære.

« EdellinenJatka »