Unlawful re hard labour for any time not exceeding one month.” ' But this warrant is quite general; it is an indefinite commitment, not for a precise limited time, as this act expressly directs and requires. Therefore, this warrant of commitment is totally illegal, and, consequently, the plaintiff is entitled to the damages that he has recovered. And you will observe, that we go only upon the warrant, which, for these reasons I have mentioned, we hold to be totally illegal. (1) It seems not to be distinctly ascertained what shall be turning, what? considered as an unlawful returning after removal, so as to subject the party to be convicted as an idle and disorderly person under 17 Geo.II. c.5. Party may re turn if not in a state of vagrancy. Lord Kenyon lays it down, that there is nothing in an order of removal unappealed from to prevent the pauper's returning to the parish from which he has been removed, provided he does not return in a state of vagrancy. Thus where a person who had rented and resided on a tenement of the value of 10l. a-year and upwards, was removed by an order of removal, which was not appealed from, the court held, that it was not in the power of the two magistrates who removed the pauper, nor of the justices at their sessions on appeal, to put an end to the contract respecting the taking the tenement; and, therefore, the pauper, who returned immediately, and resided forty days, acquired a settlement thereby. (2) But in a case where a yearly servant was removed from his service by such an order, and returned in a few days without appealing, Mr. J. Buller delivered it as his opinion, "that, after the order of removal unappealed from, the pauper could not legally return to the parish from whence he had been removed: it would have been a crime in him to do so; and if he had been indicted for such a dis (1) Baldwin v. Blackmore, 1 Burr. Rep. 595. (2) Rex v. Fillongley, 2 Term Rep. 709. ante, 147. n. (1). obedience of the order, it would have been no defence to him to have urged that he returned for the purpose of completing his contract. The order of removal put an end to the contract." (1) The statute seems to consider, that every immediate return into a parish from whence a pauper is removed, unless the party comes back in some condition which exempts him from being removed under the poor laws, is an unlawful returning, by which he incurs the guilt of vagrancy. If, therefore, a person who has been removed returns to the same parish, in some capacity which gives him an inchoate right to gain a settlement by residence there; or if he comes in a state of affluence to a tenement of that value which exempts him from the provisions of 13&14 Car.II. he is not liable to punishment under this act. (2) It appears from the foregoing cases, that a previous conviction of vagrancy is necessary to enable a justice to commit for returning after removal, except in the cases provided for by 13& 14 Car.II. c.12. sect.3. Where a person has returned after removal, and is im- Commitment prisoned under a commitment, purporting to be "for must state the place to which returning from the parish" to which he was legally re- he returned. moved, it is void unless it state the place to which he returned. For it will not be intended that he returned to the parish from whence the commitment states him to have been removed. (3) (1) Rex v. Kenilworth, 2 Term Rep. 598. ante, 146. n. (4). And see Ward v. Strickland, 7 T. R. 633. (2) Quære, the effect of 35 Geo.III. c.101., when a pauper returns who, from his condition in life, is likely to become chargeable, but is not actually so, being able to earn a livelihood. See Rex v. Angel, post, 257. (3) Rex v. Elere Cole, 2 Bott, 670. Pl. 729. Cannot commit without summoning the party, and proof of his return. A pauper who returns is indictable. May be attached. Justices may send pauper The justices of the county having a petty sessions to search for vagrants, a pauper, residing in B. confessed himself settled in S., whereupon the justices ordered him to be removed to S.; but the pauper threatened to return, and did return the same day to B., pretending, colourably, to be a hired servant to a parishioner there. Whereupon, the defendant, who was a magistrate, and present at the petty sessions, without any summons or oath made of his return, committed the pauper to the house of correction, where he was kept three days. On a motion for an information, the Court allowed the transaction in this case to be irregular, because there was no complaint made of his being chargeable, or being likely to be chargeable, to B.; but being only a mistake of judgment, they would not have thought it worthy of punishment; but the sending him to the house of correction was punishing him after having convicted him unheard, and that is contrary to natural justice. And upon the authority of Rex v. Justices of Hertford, they were for granting the information; but no malice appearing in the justice, they allowed the prosecutor to accept some proposals made by him for amends. (1) A pauper who returns after removal, without a sufficient justification, may be indicted for disobedience to the order. (2) Also, if the order be removed into the king's bench, and affirmed there, that court can enforce obedience to it by an attachment. But it seems from the following case, that the court will compel magistrates to proceed against the party under the statute, although the order of removal has been removed into the king's bench by certiorari. An order of two justices removed a pauper from R. to A., which order was quashed, upon appeal to the sessions ; (1) Rex v. Angell, Cas. Temp. Hardw. 124. (2) Per Buller J., Rex v. Kenelworth, ante, 255. (1). the house of correction. but upon a certiorari, into the king's bench, the order of returning to sessions was quashed, and the original order confirmed. The pauper returned of his own accord to R., and the justices doubted whether they had power to send him to the house of correction for returning (1), the first order being removed by certiorari. The court of king's bench being moved to grant a rule to enforce the execution of their former rule, directed that the justices should have the former rule of court showed to them, and the order of the two justices and if they refused to punish the persons afterwards, then to move the court upon an affidavit of the matter. (2) In an action against a magistrate for false imprisonment, the defence was a conviction, which stated that the plaintiff having been brought before a magistrate on an information charging him with having unlawfully returned without a certificate to a parish from which he had been removed, and that upon that occasion he confessed himself guilty. The court of king's bench held the conviction good on the face of it. Abbott C. J. The returning to the parish without a certificate was at least primâ facie evidence of his being an idle and disorderly person, and then it was for the defendant to shew that he had a lawful excuse for returning. Best J. The conviction appears to be in the ordinary form; nevertheless I must say that the parish officer acted most improperly in taking up a man as a vagrant who was at work in the harvest field. But when he was before the magistrate and alleged no fact to shew that he was not, as he appeared to be, in a state of vagrancy, the magistrate could do nothing but convict him. Had he stated to the magistrate that he returned for the purpose of working, it would have been a question for the court whether the magistrate should not have used the language of this court in (1) Quære by what statute, unless 13 & 14 Car. II. c. 12. sect. 3.? (2) Rex v. Hall, 5 Mod. 163. 2 Bott,667. Pl.726. Quære tamen, see Baldwin v. Blackmore, ante, 254. (1). the case of Rex v. Fillongley? Judgment for the de fendant. (1) 1. Appeal. SECT. IX. Of the Party's Remedy against an illegal Commitment. Remedies 1st, By appeal to the quarter sessions, where he may against illegal commitment. dispute the legality of the commitment upon its merits, as well as form. (2) 2d, By having the commitment, returned it into the court of king's bench, under an habeas corpus, where it will be quashed for such defects as appear upon the face of it. (3) 3d, By action brought against the magistrates, who have exceeded their jurisdiction by commit4.Information. ting him. (4) 4th, By motion for a criminal information, where they appear to have acted from malice or corrupt motives. (5) 3. Action. (1) Mann v. Davers, 3 B. & A. 103. (2) Rex v. Hall, ante, 257. (2), and see post, title Appeal. (3) Rex v. Elere Cole, ante, 255.; and see Rex v. Bowen, 5 Term Rep, 156. Rex v. Reeve, post, 262. (2). (4) Baldwin v. Blackmore, ante, 254. (1). (5) Rex v. Angell, ante, 256. (1). |