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order the parish officers, where the intrusion is made, to make the removal. (1)
Quære, if good, It seems, that an order directed to the constable of a to a constable 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)
Mistake in 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 ob jected, 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 Rexo. St. Nicholas, in Harwich, the certificate was directed “ To the churchwardens and overseers of the poor of the parish of Har. wich, 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 Chapple J., 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 inisnomer may be amended by the justices at sessions, under 5 Geo.Il. c.19. see post, chap. xxxviii. sect. 2. and seq. (2) Sec Rex v. Oswell, 2 Salk. 472. tamen quære.
“ in the parish of Kirkby Stephen.” This order was delivered to an overseer of the township of Kirkby Stephen. In a question between the township of Wharton and Kirkby Stephen, respecting the pauper's settlement, the latter was held to be concluded, by not having appealed against this order; for the removal to the parish of K. S. must mean the township of K. S. (1)
And it seems no objection to the direction of an order guity in the direction does that it is to the churchwardens of the parish, township, or not vitiate,
division of U. (2),” or to the churchwardens and overseers of the township of H. (3)
Yet where an exception was taken to an order of removal, that the removal was to the parish or hamlet of A. as being uncertain, the court are reported to have quashed
of the Form of a subsequent Order of Removal, after a
Pauper is removed under a former one.
Form of sub- A SUBSEQUENT order of removal, generally requires the sequent order. insertion of something in addition to the common form Original order, how far con
that has been just examined. An order of removal is in clusive.
effect a judgment. If unappealed from, it concludes the parish which acquiesces in the removal as against the world. (5) If the justice's adjudication of a settlement be confirmed upon appeal, it is equally conclusive; but if an order is quashed upon the merits, it only concludes the contending parishes (6); for it is a decision of the
(1) Rex v. Kirkby Stephen, Burr. S.C. 664. ante, 146.(1). See Spittlefields and Bromley, 18 Vin. Abr., tit. Removal, (H.) pl. S. page 468.
(2) Rex v. Ulverstone, 7 Term Rep. 565.
appellant jurisdiction between those parties, that the settlement is not in the parish to which the removal was made.
So long as these judgments are in force, the justices have no authority to make a fresh order in direct repugnance to them. (1)
If they make one, therefore, removing the same parties Second order, to the place which appears exempted by the prior adjudi- place exemptcation, such new order must state that a settlement has ed by first orbeen acquired there subsequently: (2) For even if there der, must state
a subsequent has been time to gain a new settlement, yet the court will settlemen not intend or presume any thing of that kind; but it must be Court will not
presume one. specially stated. (3) Thus, if an order removing from A. to B. is quashed by the sessions upon the merits, the pauper cannot be sent again from A. to B. by a fresh order, unless it states a subsequent settlement in B. (4) So where Second order a pauper was removed from B. to A. by an order which removing to a was afterwards quashed, and B. then removed him to F., must state suband F. neglected to appeal. F. removed him to A. by a sequent settlesubsequent order, which was quashed for this defect. (5)
ment, where parish removing, concluded
by the first. (1) “ Also justices of peace may be punished in the manner above mentioned, (i. e. by attachment) for acting in a contemptuous manner against the determination of the court of king's bench; as where an order of settlement specially setting forth the circumstances of the case, is removed into the said court, and quashed there by the judgment of the court upon the merits; and yet the justices of peace afterwards made another order to remove the same person to the same place for the very same cause, without regarding the judgment of the court, though it were well known to them, and insisted on by the parties.” Hawk, P. C. book 2. chap. xxii. sect. 29. (2) Per Foster J., ante 23.. (6). But see infra, (3).
(3) Rex v. Bradenham, Burr. S. C. 394. See also Rex v. Leverington, Burr. S. C. 276. Godalming v. St. Michael's, in Winchester, ib. 277. But it is not always necessary that it should shew a new settlement. A right of removal, accruing subsequent to the former order, is sufficient. Rex o. Osgathorpe, Burr. S. C. 261. post.
(4) Rex v. Leigh, Cald. 59. Foster v. Carlton, 1 Str. 567.
(5) Alderton v. Fellingtowe, 2 Bott, 691. Pl. 751. But it would be otherwise if F. had not been concluded as against the world, by neglect
And where A. is sent by an order to B. who appeals, and the order is confirmed, B. cannot send him to C. without stating that A. had gained a new settlement; and no new settlement appearing, the order of removal was quashed. (1)
An order of two justices removed J. S., his wife, and four children, from T. to B. 30th December 1754. An order of sessions discharging this order was made next Epiphany sessions. An order of two justices, 28th March, 1755, removed the wife and four children from T. to B.
rder made at the next Easter sessions confirmed it. These orders being removed by certiorari into the king's bench, the first was quashed, the second affirmed, and the third and fourth were also quashed, because it did not appear thereby that the wife and children had gained a new settlement in B. (2)
Extends only This rule in case of appeals, obtains only where the to adjudications on merits. judgment of sessions is upon the merits. If an order is
quashed for a defect in form, it concludes nothing between the parishes which are parties to the decision, and consequently a second order need not set forth a fresh settlement subsequent to the time when the first was made. (3)
But if the sessions erroneously quash an order of justices which is substantially good, for a defect in form, such
ing to appeal against the removal from B. thither. In most cases F. might have disputed the same question with A., upon which the latter had succeeded in its appeal against B. See Rex v. Bentley, Burr. S.C. 425. post.
(1) Little Bitham v. Somerby, 1 Str.232. Yet see Thackam v. Findon, 2 Salk. 489. Where the justices said they would intend a subsequent settlement, after the lapse of four years. But in Capel o. West Peckham, where there was a similar lapse of four years, the court said they could intend nothing as to a new settlement, and quashed the order Fortes. 327. 2 Sess. Cas. 81.
(2) Rex v. Bradenham, ante, 233. (3).
(3) Rex v. St. Andrew's, Holborn, 6 Term Rep. 613. Rex o. Penge, Nol. Rep. 176.