Page images
PDF
EPUB

2. Of the com

must set forth

Rex v. Hareby, H. 12 Geo. II.; Andr. 361 ; 2 Bott, 811. It was moved Thirdly, to quash an order of removal, because it did not set forth any complaint Of the order of made. The Court : (Page, J. absent.) The complaint is the foundation of removal, &c. 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 church wardens or overseers. By the Court. This exception is fatal ; for no one can disturb a man coming into a parish but they complaint. 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, fc. Complaint must The order was,

“ To the churchwardens of Spalding, and to the church- wardens or overwardens, &c. of St. John Baptist : Whereas, complaint hath been made by you seers.

.” 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.

&c.

den.

3. Of the Justices, their Style and Jurisdiction. 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 church wardens and overseers of Woodbridge. G. Thomas, one

of the magis- justice

must not trates who signed the order, was one of the church wardens of Woodbridge. be the complain. Bayley, J. I think there was no objection to this order of removal, on the ing churchwarground 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 church warden, 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 church wardens and overseers. From the nature of the thing, the complaint must have been made by the church wardens and overseers. Then, if the church wardens 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.—Litiledale, 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. church wardens and overseers, as persons distinct

&c.

appear.

but the order of

order a pauper to

but two must be

exainination.

remove.

not make an

on an examina.

Thirdly, from the justice to whom the complaint is made.-Order of sessions Of the order of quashed. removal, &c.

It must appear by recital upon the face of the order, that the parties 3. Of the justices, 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 The justices' au- was made by two justices. It was only, “ Whereas complaint hath been thority must

made unto us,” without reciting their authority as justices.

ex v. Westwood, Sett. f. Rem. 107; 1 Stra. 73; 2 Bott, 782. On comComplaint may be to one justice, plaint 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 removal must be absence of the other. by two. One justice may

Ware v. Stanstead Mount Fitchet, 2 Salk. 488. Exception to an order,

for that it was said, it appears upon examination before us, or one of us.be brought up; 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, present at the

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).] Examination Rex v. Wykes, Andr. 238; 2 Bott, 818. One justice took the examinamust be by the

tion, and other two justices removed upon that sole examination, and in the justices who

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. The justices of Rex v. Coln Št. Aldwin's, Burr. S. C. 136; 2 Bott, 673. The order of one corinty can

removal was made by two justices of Wiltshire, on an examination of the order of removal mother of the child removed, taken before two justices of Middlesex, which tion taken by the

had been transmitted to the justices of Wiltshire, with an affidavit, verifying justices of an. that it was duly taken. It was contended, that a certificate of one justice is other county.

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 viva 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 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. To be justices of 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. And to be for the

Reč v. Owlton, 2 Sess. Ca. 76; 2 Salk. 474. Exception was taken to an

the

the peace.

county, &c.

order for saying—“Unto us, two of his Majesty's justices of the peace in Thirdly, the county aforesaid;" for that by this it appears only that they lived in the Of the order of county, and not that they were justices for that county : And the Court held removal, &c. this to be a fatal exception, and quashed the order.

3. Of the justices, Rex v. Andover, Cald. 373; 2 Bott, 801. Exception was taken to an &c. 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 It need not apnot appear thereby that the justices were of the division, which is required pear that they are by the statute. But this objection was over-ruled, for that the statute therein division. is only directory

Rex v. St. Mary's, Leicester, 1 B. & A. 327. Removal from the parish An order of maof Wing in the county of Rutland, to the parish of St. Mary's in the borough directed to the of Leicester. The sessions, on appeal, confirmed the order. But both orders parish of W., in being removed by certiorari into the Court of K. B., a rule was obtained the county of calling on the parish officers of Wing to shew cause why they should not to the parish of be quashed for a default of jurisdiction in the magistrates' making the M., in the county original order apparent upon the face of it, in not stating them to be justices of Leicester, and of the peace of the county of Rutland. The order was : “ County of Rut- ty of Rutland,” land. To the church wardens and overseers of Wing in the said county, and were then writ;. to the churchwardens and overseers St. Mary's, in the borough of Leicester, and the magis

, in the county of Leicester.Rutland to wit.-Upon the complaint of the trates were in a church wardens and overseers of Wing in the said county, made unto us

subsequent part whose names are hereunto set, and seals affixed, being two of his Majesty's scribed as jusjustices of the peace in and for the said county, and one of us of the quorum, tic es of the peace that Mary Bacon, &c. are come to inhabit, &c., (pursuing the usual form of aforesaid: Held, such orders).”—After hearing Reader and Marriott, Lord Ellenborough, C.J., that it thereby said, If this Court is put under the painful necessity of over-ruling Rex v.

sufficiently ap.

peared that they Moor Critchell,(() in order to do justice in this case, I have no hesitation in were justices for so doing. The words “justices of the peace in and for the said county," the county of 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

of the order de

» Rutland.

(a) As to the mode of taking advan- Mary, in the county of Wilts, aforesaid, tage of the defect of want of jurisdiction unto us, whose hands and seals are in the justices, see Rer v. Chilverscoton, hereunto subscribed and set, being two (post, 783).

of his Majesty's justices of the peace in (6) Rer v. Moor Critchell, 2 East, 66. and for the said county, &c., it was conThe order was, Wilts, to wit. To the tended that the order was bad for a dechurchwardens, &c., of Donhead, St. fault of jurisdiction in the magistrates Mary, in the county of Wilts, aforesaid, making the order apparent upon the face to remove; and to the churchwardens, of it, in not stating them to be justices &c., of Moor Critchell, in the county of of the peace of the county of Wilts. Dorset, to receive, these :- Whereas, Lord Kenyon held the objection to be complaint hath been made by you, the fatal. churchwardens, &c., of Donhead, St.

&c.

rum.

Thirdly, it would have vanished before that mind exerting its proper vigour on the Of the order of subject. Here there is first, “ County of Rutland,” in the margin, then

removal,&c. come the words “ parish of Wing in the said county;" that must mean the 3. Of the justices, county of Rutland, if we are to give the word said any meaning at all.

Then immediately follow the words “justices of the peace for the said county ;” that must, therefore, also have a reference to the county of Rutland. The grammatical construction and plain meaning of the instrument, direct us to that conclusion alone.- Bayley, J. It is impossible to doubt, in this case, to what county the magistrates who made this order belonged. Rex v. Moor Critchell is undoubtedly a very strong authority, and perhaps not distinguishable from this case ; but that case does not convince me. I think the Court ought there to have come to a contrary conclusion. In that case, the words,“ said county,” could only mean, in grammatical construction and common sense, the county of Wilts. Now here," said county,” must mean Rutland, and not Leicester. Besides, in this case, after the direction of the order, there are found in the margin, the words “county of Rutland, to wit," which make the case much stronger. Then, if there be no doubt to which county the word said refers, the objection cannot prevail.- Abbott, J. The Rex v. Moor Critchell was a decision, not establishing any general rule of law, but turning upon the construction of the terms of that particular instrument, and has not, I believe, been since recognised or acted upon. Even if this case were precisely similar to that, I should say that the Court there had not adopted the true construction, nor that which was warranted by the ordinary rules of criticism or language. Here, however, there is a distinction; the county here is named, for the second time, in the margin, and we may therefore begin to read the instrument from that part; if so, there will be no doubt; for the county of Rutland is the only county named to which

the word said can have any reference. Holroyd, J., concurred. Order affirmed. One of the quo.

Orders formerly have been quashed, for not setting forth, that one of the justices was of the quorum ; but now, by 26 Geo. II.

c. 27, no order shall be set aside for that defect only. But if neither of the justices be, in fact, of the quorum, it seems (except in the cases hereafter mentioned, by 7 Geo. III. c. 21. ; 4 Geo. IV. c. 27), that such order will not be good; for the statute requires that one of them shall actually be of the quorum, though it dispenses with the necessity of setting that forth in the order. And there are many towns corporate whose charters have no quorum, but only constitute certain of the chief officers justices to keep the peace. That is to say, they have the power which the justices of the county at large have, by the first assignment in the commission of the peace. The power of hearing and determining, which they have now by the second assignment in the commission, and which only implies a quorum, is a separate and distinct authority, and was superadded to the former, some years after the institution of the office of the

justices of the peace. See tit. Justices, Vol. III. The sessions may Albrighton v. Skipton, 1 Stra. 300; 2 Bott, 797. Upon an appeal from examine into the an order of removal made by two justices, one of the quorum: the sessious, jurisdiction of the removing jus- reciting that they had perused the charter of Albrighton, and it not appearing thereby that the two justices were either of them of the

quorum,

therefore they quashed the order

. But by the Court. The order of sessions must be quashed; not for want of any power in the sessions to look into the jurisdiction of the two justices, for that they certainly have; but because that want of jurisdiction is not sufficiently alleged; since they might have a jurisdiction, though it did not appear upon the charter of Albrighton. The sessions should have said in general, that it appeared to them, that the two justices were neither of them of the quorum, and that would have been good cause to quash the order of the two justices.

But now by 7 Geo. III. c. 21, this is in part remedied : For if in any city, borough, town corporate, franchise, or Liberty, they have one (and no more than one) justice actually of the quorum; all acts, orders, adjudications, warrants, indentures of apprenticeship, or other instruments done or executed by two or more justices, qualified to act within such city or other place, shall be valid, although neither of the justices shall be of the quorum.

And further, by 4 Geo. IV. c. 27, reciting the last mentioned statute,

tices.

quorum.

nation,

“And whereas it is expedient that the provisions of the said act should be Thirdly, extended to such cities and other jurisdictions as have two or any other of the order of limited number of justices of the quorum qualified to act within the same :' removal, &c. Be it therefore enacted, That from and after the passing of this act, in all

3. Of the justices, cases where the number of justices of the peace for any city, borough, town &c. corporate, franchise, liberty or other local jurisdiction, is limited, and any one, Cities, &c., haytwo or more of such justices only are of the quorum, all acts, orders, adju- ing two or more dications, warrants, indentures of apprenticeship, or other instruments, which justices of the shall be made, done or executed, either in or out of the general quarter sessions or petty sessions, or any adjournment thereof, by virtue of any charter or grant, or by virtue of any act of Parliament made or to be made, by any two or more justices of the peace acting within the same, though neither of the said justices be of the quorum, shall be valid in law, to all intents and purposes, as if the said justices had been of the quorum ; any grant, charter, law or custom to the contrary thereof in anywise notwithstanding.”

4. Of the Examination. Before the order of removal is issued, an examination must be made, for 4. Of the examithe purpose of ascertaining, as correctly as possible, under all the circumstances, in what parish the pauper was last legally settled, and it is important that this investigation should be diligently pursued, to avoid the expences of an appeal, in case the removal should be made to a wrong parish.

One or more justices may issue their warrant to bring the pauper before them, to be examined concerning his settlement (see form, post, Appendix). Witnesses may also be summoned for the like purpose (see also form, post, Appendix). And it may be advisable, in order to avoid further litigation, that the overseers and churchwardens of the parish io which it is proposed to remove the pauper, be summoned to attend the examination. [See form of summons, post.]

Munger-Hunger v. Warden, 2 Sess Ca. 40; 2 Bott, 817. Exception was What shall be taken to an order, for that it was said to be made upon due examination, deemned due without saying upon oath. But by the Court. This is sufficient; for if it is said to be made upon due examination, it shall be understood to be upon oath, though the statute directs the examination to be upon oath.

Rex v. Fisherton Delamwre, Sess. Ca. 45. Upon due consideration held by the Court of K. B. to be sufficient ; for that due consideration implies a due examination.

Rex v. Slotfold, 4 T. R. 596 ; 2 Bott, 642. On an appeal against an order, Examination by which M. Shaw and his family were removed from Stotfold to Chilvers, taken, and order the order was quashed, subject to the opinion of the Court on the following justices separate. case : The pauper was born at Stotfold, but his father's settlement was at ly, is not void, Chilvers Coton, and the pauper had never gained any settlement in his own

but only void

able, if appealed right, except as follows: He and his family were, in 1776, removed from against in due Sandon to Stotfold in the usual form, and were delivered to the parish offi- time, cers of Stotfold, who received them, and did not appeal. The pauper and his family have, ever since, till the present removal, occasionally resided in, and been relieved by, Stotfold. It was then proved by the respondents (but which evidence was objected to by the appellants, but over-ruled by the Court), that the order of removal from Sandon to Stotfold, and the examination on which it was founded, were, in fact, taken and signed by the two justices separately, and not in the presence of each other, and that one of them, though a magistrate for the county of Hertford, took the examination, and signed the order at his own house, situate in that part of Royston which lies in Cambridgeshire; Royston lying partly in each county. - The Court took time to consider. Lord Kenyon, C. J., said, that he was not then prepared to state, from his papers, the reasons at length upon which their judgment was founded, but that he had thoroughly and attentively considered the question; and that the result of his deliberations and of the rest of the Court was, that the former order was only voidable, not absolutely void ; and, therefore, that it was necessary for the parish who wished to avoid it, to have appealed against it in a regular course of proceedings. That it would be

was

« PreviousContinue »