:

Secondly, Who may be removed.

2. Removal of

Otherwise, if it appear that she substance, and not likely to upon the parish.

is a woman of

bring a burden

she was in pari jure within the scope of this act with an unmarried woman
who was pregnant. The next question is, Whether the order of removal be
good in the form of it? It states the complaint of the parish officers of
Diss, that Rebecca, the wife of John Knowles, is actually become chargeable
to their parish, &c.; and the justices, upon due proof made thereof, adjudge the wife.
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 done 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 circum-
stances 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,
so as to put it on the party disputing it to show, that she is a person of sub-
stance, or, as in the case of Rex v. Alveley, a person under a contract of
hiring and service with another at the time, so as to rebut the presumption.
The only cases that materially affect the construction of the clause in ques-
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 & 9 W. 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 Rex 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 cer-
tificate, 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 re-
moved, it means that persons so situated shall, prima facie, only be deemed
to be chargeable, and it still leaves it open to show that the party is of sub-
stance, so as not to be within the scope and view of the poor-laws. There-
fore, whether in the form of the order it be said, that the woman so circum-
stanced 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 suf-
ficiently 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

Secondly,

Who may be removed.

2 Removal of the wife.

An order of re

moval made upon M. S., the wife of W. S.. who is ab

complaint that

sent from her, is come to inhabit, &c., and is now

is likely to be

born a bastard, adjudging the said M. S. to be actually charge. able, was held sufficient.

chargeable within the meaning of the act; and nothing being shown to rebut that presumption, it remains presumptively established that the pauper was within the description of persons liable to be removed. The other judges agreed, and both orders were confirmed.

upon

Rex v. Inskip-with-Sowerby, 5 M. & S. 299. Two justices removed Margaret Sykes from the township of Inskip-with-Sowerby to Pilling in Lancashire, by the following order:-" County of Lancaster to wit. Complaint having been made by the churchwardens and overseers of the poor of 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 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 there, nor produced any certificate owning her to be settled elsewhere; and 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; we, the said justices, upon due proof made thereof, and likewise due consideration had of the premises, do adjudge the said M. S. to be actually chargeable to the township of Inship-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 Removal of children.

Removing nurse children to the settlement of their parents.

though it takes

no notice of the death, nor ad

judges the place

removed.

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, 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 examination 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, Charles brought the paupers to Elizabeth, his mother, who was living at 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 to maintain them, they were removed to Bradfield, who appealed, and Charles was subponed, but did not appear. The appeal was adjourned, at the next sessions, he not appearing, the appeal was heard, but adjourned, 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.

:

If a mother and child have different settlements, it seems that the bastard child, like all other children, shall go with the mother for nurture, until the age of seven years. Thus in Cripplegate v. St. Saviour's, it was agreed by the whole Court, that the age of a nurse child, so as to go along with its mother, is until seven years of age. So also in Skeffreth v. Walford, 2 Sess. Ca. 90. The order was to remove a woman to her settlement; and her bastard child, of two years of age, to another parish, at a distance from the mother, being the place of its birth. It was objected, that the child being a nurse child, it could not be separated from the mother, by reason of the care necessary to nurture so very young a child; which none can be supposed so fit to administer as the mother of it; and, therefore, it should have been sent with her to the place of her settlement. And the order was quashed by the Court for that reason. But it appears to be settled, that although whilst the child continues with its mother as a nurse child, it is irremovable to its place of settlement, yet the parish, where it is legally settled, shall maintain such child in the other parish, where it is resident with its mother.

Rex v. Hemlington, Dougl. 9. (n. 2). Case: Elizabeth, a single woman, with her child Mary, went, under a certificate, from Hemlington to Darlington, in which last parish she had two bastard children, and there became chargeable. An order being made for the removal of her and Mary to Hemlington, she took the two children who were born in Darlington with her, they being both under the age of emancipation. Two justices made an order on Darlington for the maintenance of the two children born in that parish, which order, upon an appeal, was quashed. In support of the order of sessions, it was urged, that there is no statute which gives the justices any authority to make an order for the maintenance of children on a parish where they do not actually reside. That there are only two instances where a power of that nature is vested in justices, viz., 1. Where it is necesssary to assess one parish in aid of the poor rate of another; and 2nd. In the cases of paupers improperly removed. That it would be much more expedient, that the parish which is bound to maintain the mother, should also maintain, as casual poor, the children which she had a right to bring with her, and which could not be taken from her before the age of seven; and it was also said, that the practice had been conformable to what was thus contended for.-Lord Mansfield, C. J., said, no authorities having been cited in support of this proposition, and there are many against it, viz, Rex v. St. Giles's in the Fields, T., 6 & 7 Geo. II., Burr. S. C. 2.; Rex v. Wangford, 2 Wils. 3; Fort. 307; and Rex v. Saxmundham, 2 Bott, 18, which is directly in point. The practice is also agreeably to those cases.-Aston, J., cited another case, where it was directly held that the parish where the settlement of the nurture child is, shall maintain it.-Judgment to quash the order of sessions, and confirmed the original order by which the parish of Darlington was charged.

Shermandbury v. Bolney, Carth. 279. A woman with three children, all under seven, being settled in Shermandbury, married a person settled in Bolney. After the marriage, the mother and the three children were sent to Bolney. The parish of Shermandbury, before the marriage, allowed three shillings per week for three children; and the payment being discontinued after the marriage, on complaint of the parish of Bolney two justices made an order that Shermandbury should continue to pay the three shillings. The sessions, and afterwards B. R., confirmed the order of the justices. And the Court said, "This case is within the equity of the statute for the relief of the poor, and there is no reason that Shermandbury should be discharged of the children by their mother's marriage." The inconvenience, when the two parishes are at a great distance from each other, is only similar to what is experienced on appeals brought on removals from parishes at a great distance. As to the method of enforcing the order, it may be done by indict-. ment, or perhaps the parish officers, in whose behalf it is made, might maintain a special action of assumpsit against those upon whom it was made. Vide Rex v. Toms, Dougl. 401. In Rann v. Green, 1 Cowp. 474., the Court held, that when persons acting under a private act of parliament, make an order, by authority of such act, for the payment of money, the law

Secondly, Who may be removed.

3. Removal of

children.

Bastard not to be removed whilst a

nurse child.

To be maintainchild, by its own ed, whilst a nurse parish.

There is no dif

ference between bastards and le

gitimate children under such cir

cumstances.

Secondly, Who may be removed.

3. Removal of

children.

been removed to her maiden set

tlement, upon the hearing of an appeal against the order of removal, the respondents proved that the maiden settlement of H. O. was in the appellant parish,

raises an assumpsit, and the same rule must hold in the case of a public act (a).

Rex v. St. Mary, Beverley, 1 Barn & Adol. 201. Upon an appeal against an order of removal whereby Harriet, the wife of William Owen, and their children, were removed from the parish of St. Martin, in Beverley, to H. O., the wife of the parish of St. Mary, in Beverley, both in the East Riding of the county W. O., having of York, the sessions confirmed the order, subject to the opinion of this Court on the following case :-The maiden settlement of Harriet, the wife of William Owen, was in the parish of St. Mary, and both his children were born there. No proof was offered that William Owen had gained a settlement in his own right; but, on the part of the respondents, Ann Rogers, the mother of William Owen, was called, and deposed, that she was the wife of a serjeant in the 30th regiment of foot; that she never heard or knew where his place of settlement was; that about twenty-seven years since, whilst the regiment was on the march, she was suddenly taken in labour upon a baggage-waggon; that her son, William Owen, (the husband of Harriet Owen), was born in the stable of an inn at Ipswich; that she never was in Ipswich before, nor had she ever been there since; that there were several parishes in Ipswich, but that she did not know in which parish the stable was situate, or to what it belonged; and that even if she was now in Ipswich, she could not point out the stable or inn where she was confined. No proof was given of any other endeavour having been made on the part of the respondents to ascertain the parish in which William Owen was born. At the time of ents to shew that making the order of removal, William Owen was living with his wife and

and also that W.

O. was born in the city of Ips

wich, where there

were several parishes, but in which of them did not appear: Held, that as it

was incumbent on the respond

the pauper was

settled in the parish to which the removal was made, and as

they had disproved that by shewing that the hus

band had a birth settlement in some parish in

Ipswich, the seshave quashed the order of removal.

sions ought to

family in the parish of St. Martin, in Beverley. The husband, William Owen, gave his consent to the removal of his wife and family to the parish of St. Mary, in Beverley, but no proof was given of any consent on the part of Harriet Owen to her removal. The question for the opinion of the Court was, Whether, under the circumstances, Harriet Owen and her children could be legally removed to the place of her maiden settlement? After hearing Archbold in support of the order, and Coltman contra.—Bayley, J., delivered the judgment of the Court. We are of opinion that both the orders in this case ought to be quashed. To justify the confirmation of an order of removal, it ought to appear upon the evidence adduced by the respondents, that the party removed is settled in the parish to which the removal is made; if that do not appear, and à fortiori, if the contrary appear, the removal cannot be supported. Now the evidence, in this case, does not prove that the person removed is settled in the parish of St. Mary, to which she is removed, but in one of the parishes in Ipswich. It is argued, however, that as the respondent's witness did not know in which of the parishes in Ipswich the settlement was, and had proved a maiden settlement in the appellant parish of the wife who was removed, the onus of proving in which of the parishes in Ipswich the husband was born, was upon the appellant parish, and that in the absence of such proof, a removal to the wife's maiden settlement was warrantable. We do not concur in this reasoning. Where the respondent's evidence makes out a maiden settlement, and contains nothing to shew that any subsequent settlement which would supersede the maiden settlement has been gained, that constitutes a primâ facie case, and the onus of proof that the pauper was not settled there, lies upon the appellants, but not that of proving the precise place where the pauper was settled. It is enough to disprove, by clear evidence, the obligation of the appellant parish to maintain the pauper; and the question may be considered, for this purpose, as being in substance the same as if there were an issue to be tried between the two parishes, whether the pauper was settled in the parish of St. Mary, or not. None of the cases cited in argument go any thing like the length for which the respondents must contend. In Rex v. Woodford, there was no proof of any settlement but the maiden settlement of the wife. The same was the case in Rex v. Harberton. In Rex v. Hensingham there was,

(a) See also Settlement by Birth, (ante, 277.)

Secondly, Who may be removed.

3. Removal of

indeed, proof that the husband had told his wife that he was born in York-
shire, but what a man says as to the place of his birth, is not receivable in
evidence to prove it; and a similar observation applies to the case of Rex v.
Westerham, of which there is a note in Burn's Justice, tit. Poor. The
only remaining case cited by the respondents, was that of Rex v. Eltham, children.
where the husband was a Scotchman, and had no settlement of his own. I
am not aware of any other case in favour of the respondents. Now what do
these cases prove? They prove, at the utmost, that where there is no suffi-
cient evidence of any settlement in the husband, and where the only settle-
ment as to which there is any, is the wife's maiden settlement, the wife may
be removed to that settlement; but they do not bear upon the point where
it appears upon the evidence, that there is a settlement in the husband.
Upon the ground, therefore, that in this case it appears, upon the respon-
dent's evidence, that the husband has a settlement in a parish at Ipswich,
we are of opinion that a removal to the wife's maiden settlement cannot be
supported, and that the order of sessions ought to be quashed. Order of
sessions quashed.

Order of two Justices (a) upon the Churchwardens and Overseers of Z. for maintenance of a poor bastard Child settled in A., but residing with its Mother in B. for nurture.

County of To the churchwardens and overseers of the poor of the parish of

Sin the county of

Whereas, E. F., esquire, one of his Majesty's justices of the peace for the said county, did, on the complaint of the churchwarden and overseer of the poor of the parish of in the county of issue a summons under his hand and seal, duted the day of instant, and directed to the churchwardens and overseers of the poor of the parish of in the said county of thereby requiring them, or some or one of them, to appear before him, and such other of his Majesty's justices of the peace for the said county of

in

as should be at
o'clock in the forenoon, to show

of a weekly sum to

in the same county, this day at cause why an order should not be then and there made, for the payment, by the same churchwardens and overseers of the poor of the parish of the said churchwardens and overseers of the poor of the parish of maintenance of G. H., a bastard, born in the said parish of in the said parish of

for the and then resident as a nurse child with his mother, S. T. And whereas the said summons was duly served on L. M., one of the overseers of the poor of the said parish of having appeared before us, O. P. and Q. R., esquires, two of his Majesty's justices of the peace for the said county of in pursuance of the before-mentioned summons for that purpose, hath not showed to us any sufficient cause why an order should not be made upon them, the said churchwardens and overseers of the poor of the said parish of to pay a weekly sum to the said churchwardens and overseers of the poor of the said parish of towards the maintenance of the said bastard child. And whereas the said S. T., in and by her voluntary examination, taken in writing and upon oath this day, by and before us, the said justices, in the presence and hearing of the said L. M., hath declared that she was delivered of the said G. H., in the said parish of who was born a bastard there, and is now of the age of years, or thereabouts, that he, the said G. H., is now chargeable to the said parish of and that she, the said S. T., is not willing to part with her said child until he attains the age of seven years. Now, in consideration thereof, and on the complaint of the said churchwardens and overseers of the poor of the said parish of we do hereby order the said churchwardens and overseers of the poor of the said parish of or some of them, to pay to the said churchwardens and overseers of the poor of the said parish of the sum of weekly, and every week, for and towards the support and maintenance of the said G. H., until they shall be ordered according to law to forbear the said allowance or otherwise. Given under our hands and seals at one thousand eight hundred and

aforesaid, the

day of

Order of two justices for main

tenance of a bastard, &c.

(a) See Rex v. Hemlington, Cald. 6. By 59 Geo. III. c. 12, s. 5, (ante, 178, 9) an order of relief must be made

by two justices, except in cases of great
emergency, when one justice may order
relief for fourteen days only.