plain or to convey; but the justices ought first to appoint overseers, and then to remove. Bridewell v. Clerkenwell, 2 Salk. 486; Carth. 515; 1 Lord Raymond, 549; 2 Bott, 517. H. served seven years to a hemp-dresser in the precinct of Bridewell, and afterwards lived nine years in the parish of Clerkenwell, without gaining a settlement, and the justices removed him to Bridewell as his last legal settlement, by an order which set forth Bridewell to be an extraparochial place.-Holt, C. J. If a place is extra-parochial, and has not the force of a parish, the justices have no authority to send any man thither; and so it was resolved in the case of Sir J. Osborn. Possibly a place extraparochial may be taxed in aid of a parish, but a parish shall not in aid of that. This is casus omissus. Order quashed. Thirdly, Of the order of removal, &c. 1. Place, &c. extra-parochial place where there are no overseers. Paupers not refrom extraparochial places. movable to or have no over Rex v. Tamworth, Cald. 28; 2 Bott, 633. Two justices removed Thomas Removals to Goff, from the hamlet of Bolehall and Glascote, to the parish of Tamworth, places which adjudging their settlement to be at Sirescote, in the parish of Tamworth, seers. and ordering the overseers of Tamworth to receive them. Order confirmed. The pauper was hired for a year, and served that year at Sirescote, which is a hamlet consisting of one house only, and between three and four hundred acres of land; but had never contributed to the poor of the parish of Tamworth, nor had ever been assessed thereto; but bad been always assessed and paid to the support of the church of Tamworth. No overseers had ever been appointed for the hamlet of Sirescote. The pauper and his family were delivered to the churchwardens of the parish of Tamworth.—It was insisted, that the circumstance of the hamlet never having contributed towards those burthens which the law threw upon the whole parish was immaterial, and that this place could never be considered as a vill within the 13 & 14 Car. II. c. 12, there being only one house, and no overseers; and that this was a part of the parish.-On the other side it was contended, that this was a distinct vill, independent of the parish, and to which no pauper could be sent until it had officers duly appointed: that the justices had stated this to be a hamlet, and adjudged, that the pauper had therein gained a settlement.-By Lord Mansfield, C. J. There is no doubt at all: The place is averred to be within the parish where the hiring and service were had and performed, and it has no township or vill, within the stat. of Car. II., where officers are appointed, and therefore the justices could not remove the pauper there: here are no overseers, no separate economy: the adjudication is to Sirescote, as part of the parish of Tamworth. The other judges concurred. Both orders affirmed. In Rex v. Saighton-on-the-Hill, 2 B. § A. 162, it was held, that where the township in which the last legal settlement was claimed, ceased to have overseers, a removal could not be made thither, nor to any other parish. [See this case at length (ante, 711).] But in Rex v. Oakmere, 5 B. & A. 775; 1 D. & R. Mag. Ca. 109, where a district, previously extra-parochial, was, by act of parliament, made a township; and it was provided, that, from thenceforth, it should maintain its own poor, and repair its own roads, and have the like powers, privileges, and immunities, and be subject to the same regulations as other townships within the county: it was held, that this clause was prospective only, and that a bastard born within the district, previously to passing the act, was not settled there. [See this case at length (ante, 712).] Spitalfields v. Bromley, 18 Vin. Abr. 468; 2 Bott, 890. A pauper was sent to the parish of Stepney, who did not appeal. On removal of the order into the King's Bench, exception was taken, that the removal ought to have been to the township of Spitalfields; for Stepney is divided into four townships, and the poor have been removed from one township to another, in the same parish, and the statute takes notice of townships as well as parishes, and Spitalfields is a hamlet of Stepney.-By the Court. If a person is removed to a wrong place, that place ought to appeal, and so Stepney ought to have done if it were a wrong place, or else the order will be conclusive upon them: but this is a matter here out of the record. Justices of the peace are not obliged to take notice of the divisions of parishes into townships and villages which maintain their own poor severally and If the place is a township, but described as a parish, and no appeal is had, it is conclusive, Thirdly, Of the order of removal, &c. 1. Place, &c. Churchwardens are overseers of a whole parish, though it be divided into townships. So, although there is a parish and township of the same name, but the order was delivered to the officers of the township. Removal to a a parish, is void. distinctly; and Stepney here, upon an appeal, might have shewn that the person did belong to the township of Spitalfields, which might have been a reasonable cause to discharge the order. Two townships within a parish are the same as two parishes; yet churchwardens are overseers of the poor of the whole of the parish, (though so divided,) and have a superintendency over the whole villages and townships. Rex v. Kirkby Stephen, Burr. S. C. 664; 2 Bott, 894. The parish of Kirkby Stephen consists of ten different townships, who maintain their respective poor, and have separate overseers. The township of Kirkby Stephen and the township of Wharton are two of them. The pauper, William Greer, was removed from Newport, by an order directed to the officers of the parish of Kirkby Stephen, and adjudging his settlement to be in that parish, and removing him to that parish; and was delivered to the overseers of the township of Kirkby Stephen. But neither the parish of Kirkby Stephen, nor the township of Kirkby Stephen, appealed from the order; and the pauper remained in Kirkby Stephen, and was maintained by a sister, in the township of Kirkby Stephen, for near a year and a half; when his sister dying, he asked relief of the township of Kirkby Stephen; who thereupon got him removed, by an order, to the township of Wharton. Order quashed.-By Lord Mansfield and the Court. The original order, made for the removal from Newport to the parish of Kirkby Stephen, must mean the township of Kirkby Stephen. The township was as a parish for this purpose, of a removal to it; the poor within the parish not being maintained by the whole parish, but by the particular townships to which they respectively belong. The township of Kirkby Stephen ought, in this case, to have appealed. They could not get rid of this order, but by appealing. And if they had appealed, the truth might have appeared. And when the facts had appeared to the justices, upon the whole truth being disclosed, the pauper might, in the end of the inquiry, have been sent to Wharton. And the order of sessions was affirmed. Rex v. Swalcliffe, Cald. 248; 2 Bott, 786. An order of the removal to village, a part of Ascott, a large populous village, part of the parish of Whitchford, but maintaining its poor in common with Whitchford, is a mere nullity, and not conclusive, although unappealed from. 2. Of the com. plaint. Rex v. Topsham, 7 East, 466. This was an order of removal from Topsham to the parish of Poole, or town and county of Poole," and addressed to the churchwardens and overseers of "the parish of Poole, or town and county of Poole." There was, in fact, no such parish as the parish of Poole, but the town and county of Poole consisted but of one parish, and the name of that parish was St. James's in Poole. It was held, that it was no objection to the description of the parish of Poole, omitting the mention of its tutelary saint, there being but one parish in the town and county of Poole, and Poole being the common name of the place. And that the parish officers of Poole had, themselves, considered this description sufficient to call upon them to appeal to the sessions, against the order, by whom the objection to the misnomer had been over-ruled. 2. Of the Complaint. The 13& 14 Car. II. c. 12, s. 1, (ante, 705), enacts, "That it shall and may be lawful, upon complaint made by the churchwardens or overseers of the poor of any parish, to any justice of peace, within forty days after any such person or persons coming so to settle as aforesaid, in any tenement under the yearly value of ten pounds, for any two justices of the peace, whereof one to be of the quorum, of the division where any person or persons that are likely to be chargeable to the parish shall come to inhabit, by their warrant to remove and convey such person or persons to such parish where he or they were last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at the least, unless he or they give sufficient security for the discharge of the said parish to be allowed by the said justices." The necessity of proceeding according to this provision of the statute has been long established. Thirdly, Of the order of removal, &c. 2. Of the com Rex v. Hareby, H. 12 Geo. II.; Andr. 361; 2 Bott, 811. It was moved to quash an order of removal, because it did not set forth any complaint made. The Court: (Page, J. absent.) The complaint is the foundation of the jurisdiction of the justices; and therefore the order must be quashed. Western Rivers v. St. Peter's, 2 Salk. 492; 3 Salk. 254; 2 Bott, 803. plaint. Exception to an order of removal, in that it was said to be upon complaint Order of removal only, and not of the churchwardens or overseers. By the Court. This exception is fatal; for no one can disturb a man coming into a parish but they that have authority to do it. A complaint from one not concerned is nothing; it may be the parish is willing to keep him. Spalding v. St. John Baptist, M. 9 Ann, Fol. 267; 2 Bott, 639, &c. The order was, "To the churchwardens of Spalding, and to the churchwardens, &c. of St. John Baptist: Whereas, complaint hath been made by you It was moved to quash the same for the uncertainty, because it did not say, by which. But by Parker, C. J. Sure that is well enough; for it is upon complaint of the right, if both complain. 3. Of the Justices, their Style and Jurisdiction. must set forth complaint. Complaint must wardens or overseers. be by the church &c. justice must not be the complain. ing churchwar The removing den. Rex v. Great Yarmouth, 6 B. & C. 646. Order of removal of R. Lenny, 3. Of the justices, from Woodbridge to Great Yarmouth, made on the complaint of the churchwardens and overseers of Woodbridge. G. Thomas, one of the magistrates who signed the order, was one of the churchwardens of Woodbridge. Bayley, J. I think there was no objection to this order of removal, on the ground of interest in the magistrate. The statute 16 Geo. II. c. 18, authorises justices to act (in the cases therein mentioned), notwithstanding they may be interested by reason of their being rateable. It is impossible to say, that a churchwarden or overseer has any other interest in the removal of a pauper, except in his character of a rated inhabitant. He may, indeed, in the character of churchwarden, become liable to costs; but that responsibility can only attach to him, in consequence of his improperly removing the pauper: it is, therefore, against his interest to make any order of removal, as far as costs are concerned; for, by so doing, he subjects himself to a responsibility which would not otherwise attach to him. But, I think that it is a fatal objection to this order, that the person, who was the complainant, heard and adjudicated upon the complaint. I cannot consider him as divested of the character of churchwarden at the time when the order was made. It purports to be made on the complaint of the churchwardens and overseers; and the statute 43 Elizabeth, c. 2, commits the management of the poor to the churchwardens and overseers. From the nature of the thing, the complaint must have been made by the churchwardens and overseers. Then, if the churchwardens made the complaint, the person who was one of the complainants heard and adjudicated upon it. Upon that ground, I think the order of removal was bad, and that the order of sessions confirming it ought to be quashed.-Holroyd, J. I also am of opinion that the order of removal is invalid, on the ground that the same person cannot, in point of law, be the complainant and the person hearing the complaint. The statute 16 Geo. II. c. 18, enacts, that magistrates, who, by reason of being rateable to the relief of the poor in any parish, are virtual parties to the complaint of chargeability upon which an order of removal is founded, shall be competent to act in the making of such order. In this case, the parish officers are not only virtual, but acting parties to the complaint. Now, it is quite inconsistent that the same person should be a party to, and a judge in a suit. The two characters are incompatible with each other. In this case, therefore, as one of the parties who made the order was churchwarden of the removing parish, and appears to have adjudicated upon a complaint to which he was a party, I think the order of removal was bad.-Littledale, J. I am of the same opinion. The statute 16 Geo. II. c. 18, which enabled justices having an interest in the removal of a pauper, by reason of their being rateable in the parish, contemplated those cases only, where there was one set of persons to complain, and another to adjudicate, viz. churchwardens and overseers, as persons distinct Thirdly, Of the order of removal, &c. 3. Of the justices, &c. The justices' authority must appear. Complaint may be to one justice, but the order of removal must be by two. One justice may be brought up; but two must be from the justice to whom the complaint is made.-Order of sessions quashed. It must appear by recital upon the face of the order, that the parties making it are justices of the peace; thus, in Walton v. Chesterfield, 5 Mod. 322; 2 Bott, 775, an order was quashed, because it did not appear that it was made by two justices. It was only, "Whereas complaint hath been made unto us," without reciting their authority as justices. Rex v. Westwood, Sett. & Rem. 107; 1 Stra. 73; 2 Bott, 782. On complaint to one justice, two justices adjudge and remove; and it was held to be well. Otherwise, where one justice sets his hand to the order in the absence of the other. Ware v. Stanstead Mount Fitchet, 2 Salk. 488. Exception to an order, order a pauper to for that it was said, it appears upon examination before us, or one of us.By the Court. The examination ought to be before both, because both are to make the judgment of removal.—And Gould, J., said, the statute directed, and the practice was, to make complaint to one justice, and he grants his warrant to bring the pauper before two justices, and then they two examine and remove. [See 49 Geo. III. c. 124, s. 4, (ante, 710).] present at the examination. Examination must be by the justices who remove. The justices of one county cannot make an order of removal tion taken by the on an examina justices of another county. To be justices of the peace. And to be for the county, &c. Rex v. Wykes, Andr. 238; 2 Bott, 818. One justice took the examination, and other two justices removed upon that sole examination, and in the order set forth that the party was examined before themselves; for which, and for not summoning the party before them, an information was granted against the two justices. Rex v. Coln St. Aldwin's, Burr. S. C. 136; 2 Bott, 673. The order of removal was made by two justices of Wiltshire, on an examination of the mother of the child removed, taken before two justices of Middlesex, which had been transmitted to the justices of Wiltshire, with an affidavit, verifying that it was duly taken. It was contended, that a certificate of one justice is to be regarded by another justice, but that, upon the present occasion, it did not rest merely on a certificate; for the justices of Wiltshire for themselves adjudge," that it appears to them upon due examination and enquiry upon oath into the premises."-Lee, C. J.* It is plain that these Wiltshire justices have grounded their adjudication upon the examination transmitted to them from the Middlesex justices. What they examined and inquired into upon oath, was the conveyance of the child out of one parish into the other. Now the examination, on which they relied, being taken by two justices of another county, and the person examined by those justices remaining still alive, for aught that appears to the contrary, it is plain this deposition ought not to have been received as evidence to ground their adjudication upon; though it might, perhaps, have been used as concurring evidence. I have often heard it declared here, and by Eyre, J., particularly, that both justices ought to be present at the vivâ voce examination of the witnesses.—Page, J. I remember a case where it was determined that both justices must be present; and that it is not sufficient for one justice to examine the matter and transmit it to the other, and that other to sign the order without examining into the matter himself. If the woman was alive, she ought to have been examined by these justices themselves. But even supposing that she was not alive, yet still I do not know that they could regard that Middlesex examination. It does not appear that the Middlesex justices had any jurisdiction, for no complaint appears to have been made before them; and if not they could have no jurisdiction. The justices having set forth, though they were not bound to do it, the grounds of their adjudication, the Court will judge of the sufficiency of them.-Chapple, J., said, that the justices founded this, their adjudication of the place of settlement, wholly upon the transmitted examination, which they ought not to have admitted at all. Whether it be necessary that two justices shall be together at the time, depends upon the circumstance whether the act to be done be judicial, or merely ministerial. Rex v. Hamstall Ridware, 2 Bott, 503. Reg. v. Uplin, Sett. & Rem. 27. The order was quashed, because it did not say that they were justices of the peace, but only justices of the county. Rex v. Owlton, 2 Sess. Ca. 76; 2 Salk. 474. Exception was taken to an order for saying-" Unto us, two of his Majesty's justices of the peace in the county aforesaid;" for that by this it appears only that they lived in the county, and not that they were justices for that county: And the Court held this to be a fatal exception, and quashed the order. Rex v. Andover, Cald. 373; 2 Bott, 801. Exception was taken to an order, That the magistrates stated themselves to be" two of his Majesty's justices of the peace for the borough or town and parish of Andover," &c., Order quashed for irregularity upon the face of it. It was contended, that the form in which the order was drawn, was equivocal and uncertain; that if "and" had been substituted for "or," an intelligible meaning had been conveyed; but that as it stands, they may be justices for the town and not for the borough, or for the borough and not for the town; but certainly not for both, nor does it appear for which.-Buller, J. Whether for one or the other, enough appears to support the order; for both town and borough are coupled with parish. And they sufficiently appear to be justices of either of those places, for which they were empowered to make this order.-Lord Mansfield, C. J., and Willes, J., concurring, (Ashhurst, J., absent), order of sessions quashed (a). Anon., 2 Salk. 473; 2 Bott, 795. It was objected to an order, that it did not appear thereby that the justices were of the division, which is required by the statute. But this objection was over-ruled, for that the statute therein is only directory. 66 Rex v. St. Mary's, Leicester, 1 B. & A. 327. Removal from the parish of Wing in the county of Rutland, to the parish of St. Mary's in the borough of Leicester. The sessions, on appeal, confirmed the order. But both orders being removed by certiorari into the Court of K. B., a rule was obtained calling on the parish officers of Wing to shew cause why they should not be quashed for a default of jurisdiction in the magistrates' making the original order apparent upon the face of it, in not stating them to be justices of the peace of the county of Rutland. The order was: County of Rutland. To the churchwardens and overseers of Wing in the said county, and to the churchwardens and overseers of St. Mary's, in the borough of Leicester, in the county of Leicester.-Rutland to wit.-Upon the complaint of the churchwardens and overseers of Wing in the said county, made unto us whose names are hereunto set, and seals affixed, being two of his Majesty's justices of the peace in and for the said county, and one of us of the quorum, that Mary Bacon, &c. are come to inhabit, &c., (pursuing the usual form of such orders)."—After hearing Reader and Marriott, Lord Ellenborough, C. J., said, If this Court is put under the painful necessity of over-ruling Rex v. Moor Critchell, (b) in order to do justice in this case, I have no hesitation in so doing. The words "justices of the peace in and for the said county," in that case immediately follow the words "the county of Wilts aforesaid," and in plain grammatical construction can have reference to the county of Wilts only. For the word said, must have reference to the last antecedent, and I wish that the very able and learned Judge who decided that case, instead of lamenting that such an objection had there been taken, had applied his powerful mind to the objection itself, and I have no doubt that |