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Secondly, Who may be removed.
1. Of removal of paupers generally.
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 inbabit;” 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. Niartley, 5 East, 46, (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. Removal of the wife.
be removed with
To make such removal invalid, it
2. Of Remoral 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 The wife cannot appear the husband was, at the time of the removal, in St. Michael's, so that out the husband,
it might be, they sent the wise away from the husband.—But by the Court. if he is in the We cannot intend he was not; if he were in the parish from which she was parish.
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 must appear that the husband was
confirmed. It was objected that the wife was removed without the husband, resident with the and that this amounts to a divorce between the man and his wife.-But the wife at the time of her removal.
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. If a wife be re. Rex v. Higher Walton, Burr. S. C. 162; 2 Bott, 112. Order of removal moved (eo nomi.
of Mary Bennet, wife of Samuel Bennet, to Higher Walton, the place of ne) to the place of her last legal
her settlement, confirmed. It was urged that it did not appear, whether settlement, it is it were this woman's settlement in her own right, or in the right of her good.
husband. And nothing shall be intended. Now if it were not her setilement 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. f. S. 52. Order of removal of Ann Williams,
from Llandyrnog to Yspytty, confirmed. Case : The pauper is the wife (not stating her of Griffith Williams, a soldier in His Majesty's service at Woolwich. The to be such) and her children to
mother of the husband proved that he gained a settlement about eleven Y., adjudging years ago in Yspytty. This was the only evidence of the settlement of the that the lawful
husband, or of the pauper, and no attested copy was produced of the hussettlement indrber band's examination, upon oath, pursuant to 54 Geo. III. c. 25, s. 69. The is in Y., was held order was for the removal of Ann Williams, (not stating her to be the wife of well, without ad
any one,) Jane her daughter, aged three years, and Griffith her son, aged judging that Y.
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 ment; and proof shew that the order was well enough in point of form, although it did not the husband that state that Yspytty was the settlement of the husband.-Contra. The evidence he gained a set
of the mother to prove the settlement of the son, when it appeared the son tlement in Y., by hiring and
himself might have been called to prove it, was not the best evidence.—Lord service, was held Ellenborough, C. J. If the respondent parish prove enough to launch a
An order for the removal of a married woman
was her hus. band's settle.
2. Removal of the wife.
The wife and
primâ facie case of settlement, is it necessary they should prove more? Must Secondly, they go on to call witnesses at the hazard of having that which is already
Who may be proved, defeated ? As to the objection upon the form of the order, it is
removed. 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, sufficient, withand their four children, removed from Hoylandswain to Carleton, stating in out calling the
husband. their order, that complaint was made, that Simon Mac Owen, Johanna his wife, and children, came to inhabit in Hoylandswain, not having gained a children of an settlement there; and that Simon was an Irishman, and had done no act in Irishman cannot, England to gain a legal settlement, and that his wife and children were when they be.
come chargeable, chargeable to Hoylandsvain ; which they adjudged to be true, and that be removed from the settlement of Johanna and children was in Carleton; and therefore him to the wife's they removed them thither. Order confirmed. Case: John Tejas, father parish (a). of Johanna, in 1727, came with a certificate from Carleton to reside in Hoylandsuain, 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. Hinzworth, Doug. 46 (n. 13.); Cald. 42; 2 Bott, 115. Sarah, Removal of a called in the order, “ the wife” of Joseph Griffin, was removed from Ches, wife of 's. G., to hunt to Hinxworth, in the husband's absence, and without having examined C., is good, for it him. The order was not appealed against. The husband soon after went
will be presumed to his wife and childen at Hinxworth, from whence they were all sent back husband's settieunder a new order to Cheshunt. Cheshunt appealed against this order, ment. and producing the former order, insisted i: 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. Rex v. Leigh, Doug. 46; Cald. 59 ; 2 Bott, 116. Order of removal of If the husband
return after the
that C. is the
(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.
2. Removal of the wife.
Secondly, a inarried woman, from Ewell to Leigh, in the absence of the husband, Il'ho may be
quashed. The husband afterwards returning to Ewell with his wife, they removed. were removed under a new order to Leigh, which was confirmed; but it was
given up as not to be supported, since Ret v. Hinzuorth.
Eltham, 5 East, 113. An order made on examination of the huswife has been re. band, and with the consent of him and his wife, removed Mary, wife of Peter moved, and that Finn, a Scotchman, who never gained a settlement in England, and children, order of removal from St. George the Martyr, to Eltham. There was an appeal, which was cannot be remov. dismissed without a case; and both these orders being removed by certiorari, ed together to the it was objected, that the wife was removed by such order from her husband, place of the for.
who was still living, and probably in the very parish whence she and her The wife may be
children were removed, and whose assent to their separation, even if it could removed without be presumed in favour of the order, was invalid. In St. Michael's v. Nunhaving no settle. ney, (ante, 714,) the Court said, that if the husband were in the parish ment) if they
whence the wife was sent, it would vitiate the order: now that fact is to be consent.
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 Laurence, 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). Wise deserted, 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 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
a child, which will of Diss, in Norfolk, that Rebecca Knowles, wife of John Knowles, lately
came to inbabit 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 abroad; as an
Diss,” two justices, upon due proof, &c. &c. adjudged the same to be unmarried 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 bom, 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 married woman
be a bastard, is
woman with child,
(a) This case, as far as it regards Scotchmen, is no longer an authority. See Rex v.
Lecds, ante, 246.
she was in pari jure within the scope of this act with an unmarried woman Secondly, who was pregnant. The next question is, Whether the order of removal be Who may be good in the form of it? It states the complaint of the parish officers of removed, Diss, that Rebecca, the wife of John Knowles, is actually become chargeable 2. Removal of to their parish, &c.; and the justices, upon due proof made thereof, adjudge the wise. the same to be true. The act says, that a woman under the circumstances I have stated, “ shall be deemed and taken to be a person actually chargeable," &c. Have not, then, the justices dune enough in stating that the pauper was “ actually become chargeable to the parish ?” They are to draw the conclusion whether chargeable or not, and it is enough for them to state that conclusion upon the face of the order, without stating the premises upon which it was founded. If that conclusion be disputed, the party is to appeal; and such appeal having been made, and the facts stated to us, it is to be seen, thirdly, whether the premises warranted the magistrates in drawing that conclusion. The legislature intended that an unmarried woman, or, what is the same for this purpose, a married woman, under the circumstances I have mentioned, being with child, is primâ facie chargeable within the law: it raises a presumption of her being chargeable. But I say again, as I said in Rex v. Alveley, (post, p. 723,) that if it appears that the woman is a person of substance, and that there is no pretence to say that she is likely to bring a burden upon the parish, the act did not intend to make such a person liable to be removed. But it is made a presumptive chargeability, Otherwise, if it so as to put it on the party disputing it to show, that she is a person of sub- appear that she stance, or, as in the case of Rex v. Alveley, a person under a contract of substance, and hiring and service with another at the time, so as to rebut the presumption. not likely to The only cases that materially affect the construction of the clause in ques- upon the parish. tion are, first, Rex v. St. Mary, Westport (3 T. R. 44), which was the case of a certificated person, who, under the statute 8 & 9W.III. c. 30, was not removable till actually chargeable : and it was held, that one of the family of the certificated person, being pregnant of a child likely to be born a bastard, was not removable under that act. The question was again made in the case of Rer v. Great Yarmouth, (8 T. R. 68,) after the passing of the 35 Geo. III., where the residence of a person so circumstanced under a certificate, was held to be no objection to her removal. Then came the case of Rex v. Alveley, where the principal point decided was, that a single woman being with child did not operate such a dissolution of the contract of hiring and service, as to make her removable against the consent of herself and her master. In that case, there is one observation attributed to me which I am not prepared to abide by; viz. that where the act says that such a person may be removed, it does not say that she shall be so. Now, I do not think that the use of the word may there, as contradistinguished from shall, makes any difference in the sense. If the party come within the true intent and meaning of the clause as there described, I think the true meaning of the words“ may be removed,” is, that she “shall be removed.” All the statutes respecting the removal of the poor form together one system of law, and it is a condition precedent, if I may so say, that the persons to be subjected to their operation should be in the condition of poverty. When, therefore, the clause in question says, that unmarried women with child shall be deemed to be actually chargeable, &c., for the purpose of subjecting them to be removed, it means that persons so situated shall, primâ facie, only be deemed to be chargeable, and it still leaves it open to show that the party is of substance, so as not to be within the scope and view of the poor-laws. Therefore, whether in the form of the order it be said, that the woman so circumstanced is deemed to be chargeable, or is therefore chargeable, or that she is chargeable, it is all alike and equally good: and she must be presumed to be in the situation in which she is considered by the legislature : viz. as actually chargeable to the parish where she is inhabiting, and consequently liable to be removed, unless the contrary be shown. Here, then, it is sufficiently adjudged in the order, that the pauper was actually chargeable, so as to make her removable under the act; and it appearing, by the facts stated on the appeal, that though married, yet that her husband was abroad, and could not have been the father of her child, this was a primâ facie case to bring her within the sixth clause, and to show that she was actually
2 Removal of
sent from her, is
&c., and is now
sail M. S. to be
Secondly, chargeable within the meaning of the act; and nothing being shown to Who may
rebut that presumption, it remains presumptively established that the pauper removed. was within the description of persons liable to be removed. The other
judges agreed, and both orders were confirmed.
Rex v. Inskip-with-Sowerby, 5 M. f. S. 299. Two justices removed
Margaret Sykes from the township of Inskip-with-Sowerby to Pilling in moval made npon Lancashire, by the following order :-“ County of Lancaster to wit. ComM. s., the wife of plaint having been made by the church wardens and overseers of the poor of W. S.. who is ab- the township of Inskip-with-Sowerby, in the county of Lancaster, unto us,
two of his Majesty's justices, &c., that Margaret Sykes, the wife of William come to inhabit,
Sykes, a soldier in the army, and absent from her, is come to inhabit in the with child, which said township of Inskip-with-Sowerby, not having gained a legal settlement is likely to be born a bastard,
there, nor produced any certificate owning her to be settled elsewhere; and a tjudging the that she is now with child, which is likely to be born a bastard, and that
her last legal settlement is in the township of Pilling, in the said county; actually charge. able, was held
we, the said justices, upon due proof made thereof, and likewise upon due consideration had of the premises, do adjudge the said M. S. to be actually chargeable to the township of Inskip-with-Sowerby, and do also adjudge her last legal settlement to be in Pilling.” And then it proceeded to order her removal in the usual way. The sessions, upon appeal, quashed the order for insufficiency of form, because it was not stated, in the complaint, that the pauper was become actually chargeable, subject to the opinion of the Court of King's Bench, as to the validity of this objection. And the case being called on, the Court, without hearing any argument, were of opinion, that the order of removal was sufficient; for the complaint states the premises from whence the conclusion necessarily arose under the act of parliament, (35 Geo. III. c. 101,) that the pauper was to be deemed chargeable, and the justices have drawn the conclusion. (See Rex v. Ampthill, (ante, 713.) and Rex v. St. Mary, Beverley, (post, 720).]
3. Of Removal of Children. Bucklebury v. Bradfield, E., 26 Geo. III., 1 T. R. 164. Eliz., aged five;
John, aged two years and a half; and Sarah Knott, aged one year and a half, Removing nurse
were removed from Bucklebury to Bradfield: The order set forth the ages of the paupers, and that upon due proof made thereof, as well upon the ex
amination of Elizabeth Knott, their grandmother, upon oath, as otherwise The order is good, (and so on in the usual form). Order quashed. Case: Charles Knott went
to Twickenham, in 1777, where he married Sarah Slade, who dying in 1784, death, nor ad.
Charles brought the paupers to Elizabeth, his mother, who was living at judges the place to which they are
Bucklebury, in 1785, and told her they were his children, and desired her to take care of them, and he would send money for their maintenance; the paupers remained with Elizabeth about fourteen weeks, but she, not receiving any money from her son, and being unable maintain them, they were removed to Bradfield, who appealed, and Charles was subpæned, but did not appear. The appeal was adjourned, at the next sessions, he not appearing, the appeal was heard, but adjoumned, when the appeal was heard, and the removants proceeded to support the order by the following evidence: David Knott, the paternal grandfather, had his settlement in Bradfield, and his son Charles, was born there. It did not appear whether Charles had gained any settlement subsequent to his derivative settlement, nor was any evidence given to identify the paupers to be the children of Charles and Sarah Knott, except as above. "In support of the order it was urged, that the paupers being nurse children, ought not to have been removed without their father or mother, unless the order had stated they were dead, otherwise the children might be settled in a different parish from their parents. Another objection was, that the order was grounded on the examination of the grandmother, and not on that of the father. And there was no evidence produced at the sessions but the grandmother, to identify those children, or that the father had not gained a subsequent settlement. The other side was stopped by the Court, who were clearly of opinion, that there was no objection to the competency of this evidence: and as to the other point, that it was incumbent on the parish of Bradfield, to have shewn that the father had gained a subsequent settlement. Order of sessions quashed.
3 Removal of children.
children to the settlement of their parents.
no notice of the