Secondly, Who may be removed. paupers generally. township of B., which township had since been extinguished: Held, that he could not be removed to A., or to any other parish. separately maintaining its own poor. Of these townships Gloverstone was one, and was situated in the county palatine, and not in the city. At the time the pauper obtained a settlement in Gloverstone, it was a township, 1. Of removal of having overseers, and maintaining its own poor, which continued to be the case until about ten years ago, when all the houses in the township were taken down for the purpose of enlarging Chester castle. There are now no buildings in the township of Gloverstone, except part of the courts of the county, and some barracks, and other buildings, belonging to the Barrack Board. No overseers have been appointed for the township of Gloverstone for the last ten years, and there is no place within the township inhabited by persons capable of being appointed overseers. After hearing J. Williams, in support of the order, and W. D. Evans, contra, Abbott, C. J., said, The authority of magistrates to remove paupers exists only, and is derived, from the express provisions of an act of parliament; and in a new case, the best mode for the Court, is to form their judgment on the very words of the act. There may be many cases where a pauper, having no settlement in the place where he may happen to be, may still not be removable from it; either because he has no settlement at all, or because the parish officers are not enabled to discover the place of his settlement. The words of the act are, that any two justices of the peace may, by their warrant, remove and convey persons likely to be chargeable to the parish where he or they were last legally settled. It is, therefore, enough for the Court, in deciding this case to say, that Saighton is not the parish where the pauper was legally settled, inasmuch as he appears to have subsequently acquired a settlement in Gloverstone, by which the former settlement was extinguished. The justices, therefore, in this case, had no authority to remove the pauper; and the sessions have done wrong in confirming their order.-Bayley and Holroyd, Js., concurred. Where a district, previously extraparochial, was, by act of parliament, made a township; and it was provided that from thence maintain its own forth it should poor and repair its own roads, and have the like powers, privileges, and immu Rex v. The Inhabitants of Oakmere, 1 D. & R. 427; 1 D. & R. Mag. Ca. 109; 5 B. § A. 775. Two justices, by their order, dated April 1, 1821, removed John Bradford from the township of Over Tabley to the township of Oakmere, both in the county of Chester. The sessions, on appeal, confirmed the order, subject to the opinion of the Court of King's Bench upon the following case:-The township of Oakmere was before, and until the passing of a certain act of parliament, in the fifty-second year of his late majesty, part of the forest of Delamere, in the county of Chester, and an extra-parochial place. Under, and by virtue of the said act, intituled, “An Act for enclosing the forest of Delamere, in the county of Chester," the forest was, in December, 1819, duly divided into four separate townships, of which Oakmere was one. Since that time overseers of the poor have been duly appointed for the township of Oakmere. The pauper, John Bradford, was born many years ago, a bastard, in Oakmere, whilst it was an extraparochial place, and part of the forest of Delamere. The question for the opinion of the Court was, Whether such order of removal to Oakmere, as the birth-place of the pauper, could be sustained? The following were the clauses in the local act, on which the question depended :-" And be it further enacted, that the district called or known by the name of Delamere Forest, and all such lands lying contiguous thereto, as are now extra-paroact, was not set- chial, shall, as soon as the moiety of the said forest, which is hereby directed nities, and be subject to the same regulations as other townships within the County: Held, that this clause was prospective only, and that a bastard born within the dis trict previously to passing the tled there. to be allotted to and amongst the persons enjoying rights of common thereon, shall have been so allotted, divided, and enclosed, be and be deemed and taken to be a parish, and called and known by the name of Delamere parish, and shall for ever thereafter be and be deemed and taken to be a rectory. "And be it further enacted, that the said commissioners shall, and they are hereby authorised, and required to, divide the said parish into two or more townships, to be called and distinguished by such names as the said commissioners shall appoint; and when the same shall be so divided, each and every such township shall, from thenceforth for ever thereafter, provide for its own poor, make and maintain its own roads, and have, enjoy, and be vested with such and the like powers, privileges, and immunities, and be subject to the same regulations as are incident to, and as are had, held, Secondly, Who may be removed. 1. Of removal of and enjoyed by the several other townships within the said county of Chester, by the laws and statutes of that part of the united kingdom of Great Britain and Ireland called England."-Nolan having been heard in support of the order, and J. Williams contra, Cur. adv. vult; the judgment of the Court was delivered by Abbott, C. J.-This case arises on the paupers geneact 52 Geo. III. for enclosing the forest of Delamere, and the question is, rally. Whether the district newly created into a township under this statute, which before was neither in any parish nor township, is to be considered as if it had formerly been a parish or township, with regard to settlements; or only as becoming so from the time of its creation under the act, and as if it had formerly been wholly uninhabited? And we are of opinion, that the latter is the true construction and effect of the statute. If the former construction should be adopted, much inconvenience and litigation might ensue. Many parishes, wherein paupers have been considered as legally settled, and have accordingly been maintained, might relieve themselves from their burden, by removing to this new township not only illegitimate persons, born within the district whereof the township consists, but also many of those who had been servants, or apprentices, or had rented tenements of the yearly value of 101. within it. By such removals a heavy burden might be thrown at once upon the new township. It is true, on the other hand, that the new township, having now overseers, may remove persons, which the inhabitants of the district could not previously do: but then the inhabitants were not previously under the same legal obligation to maintain the poor who might be found within it, as a parish or township; the consequence of which must have been, that such poor would, in general, find their way, without removal, into those parishes or townships that were compellable to maintain them; so that the new power of removal would not be likely to afford a relief commensurate with the new burden; and the former want of the power of removal might have the effect of charging this new township with the maintenance of persons under circumstances, in which, if the district had been previously a township, the inhabitants might have taken care to prevent the burden from falling upon them, as by the removal of unmarried pregnant women, or of persons coming to settle on tenements under 101. a year, especially before the statute 35 Geo. III. c. 101. The latter, indeed, would not acquire a settlement for themselves, but settlements might be derived under them by apprentices and servants. And this is not like the case of a modern appointment of overseers to places that formerly had no such officers; because, all such places must have been vills from time immemorial, and, consequently, under a legal obligation to maintain their poor, and possessing a legal right to the appointment of officers; and, by such appointment, to remove persons under the same circumstances as other townships or parishes might do. The consequence of this opinion is, that both the orders must be quashed. Both orders quashed. he Rex v. Ampthill, 2 B. & C. 847; 4 D. §. R. 447; 2 D. & R. Mag. Ca. 297. The facts of this case are stated ante, 569.-Bayley, J., on the question of the power to remove, said, I am of opinion, that, at the time when this order was made, the pauper was removable. It is said, that although he had in fact received relief from that parish, yet as he possessed property, was not actually chargeable. But I think, that as the parish did not act fraudulently, and as they were compelled to grant him relief by an order of justices, the pauper is to be deemed as actually chargeable, and if so, then he was removable, under 35 Geo. III. c. 101, although he had resided on the tenement more than forty days. It is material to consider the history of the law with respect to this power of removal. By the 13 & 14 Car. II. c. 12, s. 1, upon complaint made to any justice of the peace, within forty days after any person comes to settle in any tenement under the yearly value of 101., any two justices of the division where any person, that is likely to be chargeable to the parish, shall come to inhabit, are authorised to remove such person to such parish, where he was last legally settled. Under that statute, complaint must be made to a justice within forty days after the party has come to reside in the parish. The 35 Geo. III. c. 101, recites this act, and Secondly, Who may be removed. 1. Of removal of paupers generally. 2. Removal of the wife. The wife cannot be removed without the husband, if he is in the parish. To make such removal invalid, it must appear that the husband was resident with the wife at the time of her removal. If a wife be removed (eo nomine) to the place of her last legal settlement, it is good. An order for the removal of a married woman (not stating her to be such) and her children to Y., adjudging that the lawful settlement of her and her children is in Y., was held well, without adjudging that Y. was her husband's settle ment; and proof by the mother of repeals so much of it as enables justices to remove persons likely to be chargeable, and enacts, that "no person shall be removed from the parish where he shall be inhabiting, to the place of his last legal settlement, until such person shall have become actually chargeable to the parish in which he shall then inhabit;" and then two justices are empowered to remove such person in the same manner, and subject to the same appeal, and with the same powers as might have been done before the passing of that act, with respect to persons likely to become chargeable. Now, taking these two statutes together, I think the meaning of them is, that the statute 35 Geo. III. c. 101, takes away altogether the power of removing, within forty days, persons likely to become chargeable, but gives the power to remove persons actually chargeable, at any time after they have become so, and before they have actually gained a settlement.-Holroyd and Littledale, Js., both concurred on this point. But by Rex v. Martley, 5 East, 40, (ante, 635), it will be seen that a pauper, residing upon an estate which he has purchased, though for less than 301., is irremovable during such residence. 2. Of Removal of the Wife. St. Michael's Bath, v. Nunney, 1 Stra. 544. Order of removal of the wife of a poor person. It was moved to quash the order, because it did not appear the husband was, at the time of the removal, in St. Michael's, so that it might be, they sent the wife away from the husband.-But by the Court. We cannot intend he was not; if he were in the parish from which she was sent, that, indeed, would vitiate the order; for the wife cannot be removed from her husband: but as neither of these facts appear against the order, to satisfy us that it is bad, we are not to presume it to be so; and therefore it must be confirmed. Rex v. Ironacton, Burr. S. C. 153; 2 Bott, 111. Mary, the wife of William King, removed to Ironacton, the settlement of her husband. Order confirmed. It was objected that the wife was removed without the husband, and that this amounts to a divorce between the man and his wife.-But the Court over-ruled the objection; for how doth it appear that the husband was not at Ironacton at that time? The Court will not suppose it to be wrong, unless it appears so. The intrusion complained of was only by the wife, and they could not remove the husband when he was not complained of. Rex v. Higher Walton, Burr. S. C. 162; 2 Bott, 112. Order of removal of Mary Bennet, wife of Samuel Bennet, to Higher Walton, the place of her settlement, confirmed. It was urged that it did not appear, whether it were this woman's settlement in her own right, or in the right of her husband. And nothing shall be intended. Now if it were not her settlement in right of her husband, the justices had no power to send her thither. -By the Court. It is adjudged to be her last legal settlement; and she could not be settled but where her husband was; and we are not to intend any thing to vitiate the order. Therefore, we cannot intend that the husband's settlement was not at Higher Walton. Motion denied. Rex v. Yspytty, 4 M. & S. 52. Order of removal of Ann Williams, from Llandyrnog to Yspytty, confirmed. Case: The pauper is the wife of Griffith Williams, a soldier in His Majesty's service at Woolwich. The mother of the husband proved that he gained a settlement about eleven years ago in Yspytty. This was the only evidence of the settlement of the husband, or of the pauper, and no attested copy was produced of the husband's examination, upon oath, pursuant to 54 Geo. III. c. 25, s. 69. The order was for the removal of Ann Williams, (not stating her to be the wife of any one,) Jane her daughter, aged three years, and Griffith her son, aged two years; adjudging that their settlement (not that the settlement of her husband) was in Yspytty.-Rex v. Bucklebury, 1 T. R. 164, was cited to shew that the order was well enough in point of form, although it did not state that Yspytty was the settlement of the husband.-Contra. The evidence of the mother to prove the settlement of the son, when it appeared the son himself might have been called to prove it, was not the best evidence.-Lord Ellenborough, C. J. If the respondent parish prove enough to launch a primâ facie case of settlement, is it necessary they should prove more? Must they go on to call witnesses at the hazard of having that which is already proved, defeated? As to the objection upon the form of the order, it is stated that it is the wife's settlement, and the medium through which she became settled there need not be stated. Order confirmed. Rex v. Carleton, Burr. S. C. 813. Johanna, wife of Simon Mac Owen, and their four children, removed from Hoylandswain to Carleton, stating in their order, that complaint was made, that Simon Mac Owen, Johanna his wife, and children, came to inhabit in Hoylandswain, not having gained a settlement there; and that Simon was an Irishman, and had done no act in England to gain a legal settlement, and that his wife and children were chargeable to Hoylandswain; which they adjudged to be true, and that the settlement of Johanna and children was in Carleton; and therefore they removed them thither. Order confirmed. Case: John Tyas, father of Johanna, in 1727, came with a certificate from Carleton to reside in Hoylandswain, and during his residence there, Johanna was born, and continued to live with him there until she was upwards of twenty-one years of age she afterwards took a house at Hoylandswain, and resided therein till she was married to Simon, who, upon his marriage, went to reside with Johnnna in her house, and continued to reside with her from the time of their marriage, in 1766, until she and her children were removed, under this order, from the said Simon, and from his dwelling-house wherein he then, and still, continues to reside: Simon maintained himself and family, until a little time before the removal was made. It was objected, that this would occasion a separation between husband and wife; and amount, in effect, to a divorce. And the Court were clear, that the removal was wrong. It was not like the case of the husband being dead, or having left his wife. Here the husband was alive; resided at Hoylandswain; followed the business of a cloth-dresser there; and maintained his family by it for many years, till they were taken ill of this temporary fever, which obliged them to apply for relief. The parish had had the benefit of his labour nine years. This man was settled in a house, and carried on business in this place. There might be no business for a cloth-dresser at Carleton at all. Or this man might have no acquaintance there. He might starve there, though he could maintain his family at Hoylandswain. Orders quashed. Rex v. Hinxworth, Doug. 46 (n. 13.); Cald. 42; 2 Bott, 115. Sarah, called in the order, "the wife" of Joseph Griffin, was removed from Cheshunt to Hinxworth, in the husband's absence, and without having examined him. The order was not appealed against. The husband soon after went to his wife and childen at Hinxworth, from whence they were all sent back under a new order to Cheshunt. Cheshunt appealed against this order, and producing the former order, insisted it was conclusive as to the husband as well as the wife and children. The sessions, however, after hearing evidence as to Griffin's settlement, confirmed the new order as to him, and quashed it as to the wife and children. The wife then went back with her children to her husband at Cheshunt. After which a third order was made, removing the children again to Cheshunt. This was likewise appealed against, and confirmed as to all but two of the children, who were under seven years of age, as to whom it was quashed.-By Lord Mansfield, C. J. There is nothing in this case. It is admitted, that if they had put into the first order, that it was the husband's settlement, that would have been conclusive; and the omission makes no difference. The general rule is, that the husband's settlement is the settlement of the wife. There are some special exemptions; as where the husband is beyond sea. But the presumption is in favour of the general rule; and if this had been the case of an exception, it ought to have been stated. And the rule was made absolute to quash all the orders but the first. Secondly, Who may be removed. 2. Removal of the wife. sufficient, with- husband. children of an be removed from him to the wife's parish (a). Removal of a wife of J. G., to C., is good, for it will be presumed husband's settlement. woman, as the that C. is the Rex v. Leigh, Doug. 46; Cald. 59; 2 Bott, 116. Order of removal of If the husband (a) See Rex v. Leeds, and Rer v. Cottingham, as to the removal of the wife of an Irishman or Scotchman, ante, 246, 248. Casual Poor. return after the Wife deserted, her estate. A married woman pregnant of a child, which will be a bastard, is husband be abroad; as an unmarried woman with child. a married woman, from Ewell to Leigh, in the absence of the husband, quashed. The husband afterwards returning to Ewell with his wife, they were removed under a new order to Leigh, which was confirmed; but it was given up as not to be supported, since Rex v. Hinxworth. Rex v. Eltham, 5 East, 113. An order made on examination of the husband, and with the consent of him and his wife, removed Mary, wife of Peter Finn, a Scotchman, who never gained a settlement in England, and children, from St. George the Martyr, to Eltham. There was an appeal, which was dismissed without a case; and both these orders being removed by certiorari, it was objected, that the wife was removed by such order from her husband, who was still living, and probably in the very parish whence she and her children were removed, and whose assent to their separation, even if it could be presumed in favour of the order, was invalid. In St. Michael's v. Nunney, (ante, 714,) the Court said, that if the husband were in the parish whence the wife was sent, it would vitiate the order: now that fact is to be collected in this case; for he is stated to have been examined before the magistrates, and to have given his consent to the removal.-But by Lawrence, J. How does it appear that the husband was living in St. George the Martyr? He might have been before the magistrates without residing there. The order only states, that the wife and children were come to inhabit in that parish.-Lord Ellenborough, C. J. Independent of the last mentioned objection, what doubt is there in the case? A Scotchman, who has no settlement of his own, and is desirous to give his wife and children the benefit of hers, being unable to maintain them, consents that she should be sent to her parish, to which she herself is willing to go. Why should he not consent? This is nothing like the contract of separation declared to be illegal in Marshall v. Rutton, 8 T. R. 545. Servants, and other persons of that description, members of the same family, who are to subsist by their labour, must frequently separate for that purpose. Here there is neither a private nor a public injury. The Court affirmed the orders (a). 66 In Rex v. Brington, (ante, 635,) a wife, deserted by her husband, went to irremovable from reside in a parish in which she was entitled to an estate as a coparcener, and it was held that she could not be removed to her husband's settlement. Rex v. Tibbenham, 9 East, 388. Upon complaint of the parish officers of Diss, in Norfolk, that Rebecca Knowles, wife of John Knowles, lately came to inhabit in Diss, not having gained a legal settlement there; "and removable, if the that the said R. K. is actually become chargeable to the said parish of Diss," two justices, upon due proof, &c. &c. adjudged the same to be true," and adjudged the lawful settlement of the said R. to be in Tibbenham, &c. &c. This order was confirmed by the sessions, subject to the opinion of the Court upon the following case: the pauper's husband, John Knowles, being settled at T., had gone to the East Indies, four years before, and had never returned. At the time of the removal, the pauper was residing in Diss, and pregnant of a child, which was afterwards born a bastard in T. The pauper never received any relief from Diss parish, nor was chargeable in any other manner than as above mentioned.-After hearing Frere in support of the order, and Bowen, contra, Lord Ellenborough, C. J. The first question is, Whether a married woman, who, in the absence of her husband abroad, is pregnant under such circumstances as that the child, when born, would be deemed by law a bastard, be liable to be removed under the 35 Geo. III.? The act, indeed, says, "that every unmarried woman with child shall be deemed and taken to be a person actually chargeable within the true intent and meaning of the act," and removable: but the legislature plainly had in view that every woman pregnant of a child, which was not protected by the matrimony of its parents, but would, when born, be a bastard, should be removable, whether married or unmarried: for though the mother were married, yet if her child would, by law, be a bastard, (a) This case, as far as it regards Scotchmen, is no longer an authority. See Rex v. Leeds, ante, 246. |