by two justices, is, that though the reason would be the same, yet the same care is not taken as to the provision on appeal; for, upon an appeal from an order of two justices, As to appeal. there is a provision for costs, but none on this act. Here are no costs given on appeal; yet that provision would be as reasonable as in the case of an order of two justices, if it had been intended to be put upon the same footing in all other respects; but upon appeals from orders of two justices, As to costs. costs are payable. Now, it would be something extraordinary, and cannot well be conceived to have been the sense of the legislature, that a person, being sent by one justice of peace, shall have the same effect as if sent by two, and yet that there should not be the same remedy upon appeal. Therefore, we are of opinion, that the act made in relation to vagrants, and the manner of passing them, was in a different view from that which was calculated for the fixing of settlements; and, that the act is only calculated to convey them to their settlement, if it can be found; or (in cases where their settlement is not found), only to remove them to the place of their birth, or the abode of their parents, or where last found begging, &c. there to be provided for according to law; and that provision is, "to keep them till their last legal settlement can be discovered, but no longer." And then they will be subject to a removal, by virtue of the former act, to their place of last legal settlement; on which removal an appeal will lie, subject to costs." (1)

It has been determined therefore, not only that a removal Want of apunder a vagrant-pass is not conclusive against the parish to peal against vagrant-pass is which the removal is made, by not being appealed from (2), not conclusive, but that no appeal lies to the quarter sessions against it. (3) but a general appeal does For the 17 Geo.II. c.5. did not mean to give an appeal not lie against against a vagrant-pass, which is inconsistent with the it. eleventh section of it. If the sessions should, upon such

(1) Rex v. Stansfield, Burr. S. C. 205. 2 Bott, 658. Pl. 722. (2) Rex v. Stansfield, supra, (1). Rex v. Upmerden, Burr. S. C. 214. (3) Rex v. Ringwould, Burr. S. C. 840. Rex ». St. Lawrence Jewry, Cald. 18.

Quere, if made

or in case of a

foreigner, un

appeal, enter into the merits, they could not send him back to the place where he was only a vagrant, nor to any other; he cannot be removed from the place to which the pass has sent him by any other method than an original order of two justices. The proper subject of an appeal is, an adjudication; a pass only recites, "that it appears upon examination of the vagrant:" it is not such a positive adjudication as there is in an order of removal by two justices. There is no reason for an appeal in such a case, nor hardship upon the parish to which the vagrant is passed; for as soon as they can find out where his legal settlement is, if it really is not with them, they may remove him to it by a common order of removal. (1)

The court in the foregoing decision expressly stated, that by the vagrant, the appeal before them was only a general appeal from a pass; and declared, in a subsequent case, that they did not give any opinion whether it would not lie, if the vagrant himself appealed against such a pass, or if the person sent by it were a foreigner. (2)

settled.

SECT. VI.

Of suspending Orders of Removal and Pass-Warrants.

MAGISTRATES have obtained powers to suspend the execution of orders of removal and vagrant passes by the humane provisions of 35 Geo.III. c.101.

It is enacted by section 2, " And whereas poor persons are often removed or passed to the place of their settlement during the time of their sickness, to the great danger of their lives for remedy whereof, be it further enacted, by the

(1) Ib. But Rex v. Justices of Sussex, Burr. S. C. 844. seems contra; and in Rex v. Stansfield, and Rex v. Upmerden, ante, 239. (2), it appears to have been taken for granted, that an appeal would lie, although a pass unappealed from was not conclusive.

(2) Rex v. St. Lawrence Jewry, ante, 239. (3).

authority aforesaid, that in case any poor person shall from henceforth be brought before any justice or justices of the peace, for the purpose of being removed from the place where he or she is inhabiting or sojourning, by virtue of any order of removal, or of being passed by virtue of any vagrant-pass, and it shall appear to the said justice or justices, that such poor person is unable to travel, by reason of sickness or other infirmity, or that it would be dangerous for him or her so to do, the justice or justices making such order of removal, or granting such vagrant-pass, are hereby required and authorized to suspend the execution of the same, until they are satisfied that it may safely be executed without danger to any person who is the subject thereof; which suspension of, and subsequent permission to execute the same, shall be respectively indorsed on the said order of removal or vagrant-pass, and signed by such justice or justices. (1)

The words of the act are," if any poor person shall be brought before any justice." To construe these words in their literal sense would prevent the suspension of orders of removal in cases where it is most necessary that it should take place, namely, when the pauper cannot, from sickness or other calamities, be brought before magistrates, and when it might be highly inconvenient, if not dangerous, for a justice to visit them. As this construction would be to give effect to the letter by a repeal of the very object of the statute, and expose the pauper, in cases of extreme sickness or infirmity, to the very mischief the act was intended to remedy; the Court of King's Bench has decided, that as paupers may be removed in some instances, without being brought personally before the justices (2), the operation of such an order may be suspended in the same manner, when required by the circumstances of the case. For the mean

(1) As to the expences of maintaining such paupers pending the suspension of these orders, see post, chap. xxxiv. sect. 1.

(2) But that if he can be brought, it should be done. Per Holt C. J., Comb. 478. ante, 207.

49 Geo.III.

sion removed by another justice.

ing of the act is, "not that when any person was brought personally, but where his case was brought judicially before the magistrates for the purpose of his removal, that they should have power to suspend the execution of the order of removal, if it appeared to them, that is, by due examination of the facts, that, from sickness or infirmity of the party, the removal could not then be safely made." (1)

The 35 Geo.III. seemed to confine the power of removc.124., suspen- ing the suspension to the justice or justices by whom it was originally imposed. But as this might be attended in various instances, such as the occasional absence or death of the removing magistrate, with great inconvenience; a remedy is provided by 49 Geo.III. c.124. s.1. which enacts, that "in all cases wherever the execution of any order of removal, or of any vagrant pass, shall be hereafter suspended by virtue of the said recited act (2), it shall be lawful for any other justice or justices of the peace, of the county or other jurisdiction within which such removal or pass shall be made, to direct and order that the same shall be executed, and to direct the charges to be incurred as aforesaid to be paid, and to carry into execution any such amended orders as aforesaid, as fully and effectually, to all intents and purposes, as the said respective powers and authorities can or may be executed by the said justices who shall make any such order of removal, or by the justice who shall grant any such pass as aforesaid."

Order sus

pended as to an entire family.

In order to prevent any pretence for forcibly separating persons nearly connected with or related to each other, and living together as one family during the suspension of an order of removal or vagrant-pass, by reason of the sickness of one or more of the family, it is enacted and declared by the same statute, "That where any order of removal or vagrant-pass shall be suspended by virtue of

(1) Rex v. Everdon, 9 East, 101. See 49 Geo.III. c. 124. sect. 4. (2) 35 Geo.III. c.101.

ante, 208.

this or the said recited act, on account of the dangerous sickness or other infirmity of any person or persons thereby directed to be removed or passed, the execution of such order of removal or vagrant-pass shall also be suspended for the same period, with respect to every other person named therein, who was actually of the same household or family of such sick or infirm person or persons, at the time of such order of removal made, or vagrant-pass granted."

until hus

band's death.

A husband, his wife, and children, were removed by an Suspension order of justices to the place of their last settlement, and not taken off the order was suspended as to the husband, until it should appear that he was sufficiently recovered to be able to travel. The husband dying, the wife and children were subsequently removed without an order removing the suspension of the original order. The justices had likewise made a third order, which, after stating that the death of the husband had been proved, and that the reasonable charges incurred by the suspension amounted to 417. 4s. 6d., directed the officers of the parish removed to, to pay those charges to the officers removing the pauper. These three orders were quashed, on appeal, as insufficient, inasmuch as the suspension of the original order had not been taken off by a magistrate's order upon the husband's death. But the court of King's Bench thought that the sessions could not quash these orders, which were all good upon the face of them on that ground. The respondent's counsel suggested that the husband's death put an end to the order of suspension; but the court did not decide the case on that ground, and it was observed è contra that the terms of the order of suspension did not apply to the case of death, but was to operate till the sick person could be safely removed.(1)

But the power of ordering payment of the expenses in- Confined to curred by maintaining the pauper during the suspension where pauper

(1) Rex v. Englefield, 13 East, 317.