parish officers of C. to repair to R. and relieve a man and his wife, being so sick they cannot be removed, was quashed as bad. (1) officers to repair to another parish, and relieve, it is bad. to this rule. 1st, where a child legiti mate or illegiin another parish with its timate resides One case, however, has been always considered as an Exceptions exception to this rule. A child within the age of nurture cannot be removed from the mother, so that if the latter be settled in a different parish from her child, and reside there, the place in which the infant is settled must maintain it, during such residence with the mother; and the law is the same, whether it be a legitimate (2) or a natural child. (3) as mother for nurture. make an order But the Court of King's Bench will not grant a man- Mandamus to damus to compel two justices to make an order of mainte- refused. nance on the officers of a parish in which it was serted, by affidavit, that the child was born, on the application of the parish to which it is chargeable as residing there with its mother for nurture; for this would be, in effect, to compel the justices to come to a PARTicular decision of which there is not any instance. (4) Some further exceptions are made to this rule by statute; 1st, As it respects the maintenance of the poor in general. 2d, As it relates to provision for the family of men serving in the militia. (5) We have already seen that 35 Geo. III. c. 101. s. 2. enacts, By 35 Geo. III. that in case any poor person shall be brought before a justice c. 101. (1) Clypton St. Mary v. Ravistock Poor, Sett. 49. Rex v. Houghton le Spring, 1 East, 247. 1 Bott, 400. Pl. 490. See also 9 Geo. I. c. 7. s. 1. As to how casual poor shall be maintained, see post. (2) Shermanbury v. Bolney, Carth. 279. Rex v. Saxmundham, Fort. 307. S. C. Rex v. St. Giles in the Fields. Burr. S. C. 2. (3) Rex v. Hemlington, Cald. 6. Simpson v. Johnson, Doug. 7. Rex v. Saxmundham, supra, (2). (4) Rex v. Justices of Middlesex, 4 B. & A. 298. poor cannot be removed. 2d, where the or justices, to be removed or passed, and it shall appear to the justice or justices, that from sickness or other infirmity, it would be dangerous to remove them, the said justice, &c. is required and authorised to suspend the execution of the order or vagrant pass, until he or they are satisfied it may be safely executed, without danger to those who are to be removed under it; which suspension, and subsequent permission to execute, are to be indorsed on the warrant or pass. 49 Geo. III. c. 121. s. 1. Sect. 3. Charges how to be paid, &c. This power to remove the suspension of an order or pass seems by this act to have been confined to the justice or justices by whom the order was originally made. But now by 49 Geo. III. c. 121. s. 1. it is made lawful for any other justice or justices, within the county or jurisdiction within' which such removal or pass is made, to order that the same shall be executed, and direct the charges to be incurred to be paid, and to carry into execution such amended order as fully and effectually as these powers and authorities can be executed by the justices who make such order, or the justice who grants such pass. Sect. 3. directs, that when it is suspended on account of the sickness of any person thereby directed to be removed, it shall 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 at the time of the order made or pass granted. The charges proved on oath to be incurred by suspension of an order of removal, or vagrant pass, are to be paid by the parish officers of the parish or place to which such poor person is to be removed, in case any removal is made, or the party dies previous to the execution of the order; but where a pauper, during the suspension of the order of removal, came, by the death of his father, into possession of two freehold houses in the parish where he continued during his illness to reside, and so was irremovable; and two justices afterwards ordered the original order of removal to be executed, and likewise ordered the charges incurred during the suspension of the order, amounting to 691. 9s. and 221. 7s., to be paid by the parish officers of the place to which the pauper was ordered to be removed; but the pauper was never removed: the court held, that the magistrates can order the intermediate charges during the suspension of an order of removal and its execution to be paid by the parish to which the removal is to be made, in two cases only; viz. where the removal actually takes place, or where the death of the party happens before the execution of the order; that the present case was not provided for by the act, and that the pauper, not having been removed, no order for the payment of any charges incurred during the suspension of the original order of removal could be made. (1) ordered to If the parish officers shall, upon the removal or death of the person ordered to be removed, refuse or neglect to pay the charges within three days after demand, one justice, by warrant under his hand and seal, may cause the money mentioned in such order to be levied by distress and sale of the goods and chattels of the person or persons refusing or neglecting payment, with such costs of the levy, not exceeding 40s., as the said justice shall direct. And if the How, where parish or place to which the removal is made, or ordered the parish to be made, be without the jurisdiction of the justice sign- pay lies ing the warrant, it shall be transmitted to any justice of without the jurisdiction. the peace having jurisdiction within such parish or place, who are authorised and required to indorse the same for execution. But if the sum ordered to be paid on account Appeal. of costs and charges exceed 20l., the party or parties aggrieved may appeal to the next general quarter sessions; and if the court of quarter sessions is of opinion that the sum awarded is more than of right ought to have been ordered to be paid, they may strike out that sum, and insert such as in their judgment ought to be paid; and they are to direct that the amended order shall be carried into (1) Rex v. Chagford, 4 B. & A. 235. execution by the justices, by whom the order was originally made, or either of them; or, in case of the death of either, by such other justice or justices as they shall direct. (1): The party may bring this appeal within the time allowed by law for bringing appeals against orders of removal, and is not limited to three days after the costs are demanded. The meaning of that part of the clause is, that if he does not give notice of appeal within three days, he subjects himself to the inconvenience of being distrained upon for the amount, but the right of appeal being given in the most general terms by a subsequent part of the clause, is not thereby restrained. (2) And, by 49 Geo. III. c. 124. sect. 2., when the execution of the order is suspended, the time of appealing is to be computed according to the rules which govern other like cases, from the time of serving it, and not from that of making such removal under and by virtue of it. (1) Quære, whether the general words in the enactment, which require payment of the expences incurred during the suspension of these orders by parishes to which persons are to be thereby removed, are restrained by the recital in sect. 2. to cases where poor persons are removed or passed to the places where they are legally settled. Otherwise the parish to which the removal is afterwards made, will be obliged to pay all expences under 20%. at all events, without power of redress, even though it shall ultimately appear upon appeal, that the pauper is settled in that parish from which the removal is made. In the case of vagrant passes also, the burthen of maintaining the vagrant, during his sickness, will be cast upon a parish where he not only may have no settlement, but possibly has never been. The act also makes no provision for the suspension of orders through inevitable accident during the time the officers are putting them in execution. Thus, if a pauper is to be conveyed, under an order from Launceston to Carlisle, and is taken ill on the road, by whom is he to be maintained? Quære also, whether the sessions have power to examine into the propriety of the order of suspensions being made at all? As for instance, if the parish appealing, should be able to shew that the paupers were neither sick nor infirm, but might have been removed without danger. The words of the act refer to an alteration in the sum only. (2) Rex v. Bradford, 9 East, 97. Where an order of removal, with an indorsement for suspending the execution thereof, bearing date 6th of August 1814, was served in September 1814, and again in October 1815, but the service was bad, and the suspension was taken off in August 1819, and a further order made for the payment of 161. 17s. 5d., being the charges of supporting the pauper during the suspension of the order of removal; and the pauper was removed on 5th September 1820, the court held, that an appeal entered against the order of removal, at the Michaelmas sessions, 1820, was in time. The question depends entirely upon the validity of the service of the order, which, being clearly defective, the appeal is in time. (1) nal order have those who The justices by whom the original order is made and The justices warrant issued, have a discretion to exercise upon the making origimatter submitted to them; but the statute is peremptory a discretionary upon the magistrates, residing in the jurisdiction where power. But the levy is to be made, to endorse the warrant. He has should back nothing to do with the propriety of making the original it have none. order, or granting the original warrant, and is not answerable for their legality, but they remain at the hazard of them by whom they were first granted. (2) granted to back a warrant of distress, under 35 Geo. although the III. c. 101., A rule was moved to shew cause, why a mandamus Mandamus should not issue to a magistrate of the county of Essex, commanding him to back a warrant of distress, issued by the magistrates of the borough of C. for 20l. 16s. 3d., being the expences incurred by the parish of L. in the maintenance and support of D. G. and A. his wife, and for surgical justice conassistance during the suspension of an order for removing him to his parish, and 30s. for the charge of the levy. It appeared that G. on 1st May 1791, as he was driving waggon on the public road leading through L., broke both his legs, and was taken to the workhouse, where he a (1) Rex v. Alnwick, 5 B. & A. 184. See also Rex v. Lampeter, Mic. Term, 5 Geo. IV. post. the service of the order must be within a reasonable time. (2) Per Lord Kenyon C. J., Rex v. Kynaston, 1 East, 177. sidered it ille gally granted. For he has judge of its legality, and is for the conse no power to not answerable quences. |