Thirdly, Of the order of removal, &c. 5. The form of the order of re. moval. Orders to be executed by the officers of the removing parish. Must not be to both parishes to remove and re ceive. 6. Time and manner of serving the order of removal. Fifthly-To whom Order Directed. St. George's v. St. Olave's, 2 Salk. 493; 2 Bott, 665. The order was to convey to the parish of St. Olave, and it was directed, To the churchwardens and overseers of the poor of the parish of St. Olave. Quashed; for they ought and can only order the parish officers where the intrusion is made, to make the removal. It is not necessary to use the word churchwardens, if directed to the overseers it is sufficient. Rex v. Searle, 1 Bott, 3. An order directed to officers of both parishes, to remove and receive, is bad, because it is entire. Comb. 325. Rex v. Alverstone, 7 T. R. 564. It was observed, that the order was directed to the churchwardens, &c. of the parish, township, or division of U., and it was wished to have the opinion of the Court, whether such description was proper; and Lord Kenyon said, that as at present advised, he saw no objection to it. The order was quashed on another ground. [See ante.] It is no longer necessary that the pauper should be conveyed by the over seers. 6. Time and Manner of Serving the Order of Removal. In Llanwinio, 4 T. R. 473, one of the objections was, that there was an interval of a year between the signing of the order and the execution of it. Upon which Lord Kenyon said, There might be some weight in that objection, if the circumstances of the pauper had been altered, but nothing of year after, it was that kind is stated here-nor indeed is any question referred to us on this made good. point. When served a Three years after, unreasonable. Where a valid service. 7. Of suspending orders of removal. 35 Geo. 3, c. 101. Justices empowered to suspend orders of re moval of sick or infirm persons. Charges incurred by such suspension to be paid by the officers of the parish to which they are ordered to be re [See Rex v. Lampeter, (post, 754) where the order of removal, which was suspended, was not served till three years after the execution. The Court held it an unreasonable time, and it was treated as a nullity.] In Rex v. Alnwick, (post, 756) it was held, that the service of the order of removal, to render the same valid, must be by delivery of the order itself, or by serving a copy of the order, and producing at the same time the original. 7. Of Suspending Orders of Removal. By 35 Geo. III. c. 101, s. 2. (a) After reciting that poor persons are often removed or passed to the place of their settlement during the Time of their sickness, to the great danger of their lives;' for remedy thereof, be it further enacted, "That in case any poor person shall, from henceforth, be brought before any justice or justices of the peace, for the purpose of being removed from the place where he or she is inhabiting or sojourning, by virtue of any order of removal, or of being passed by virtue of any vagrant pass, and it shall appear to the said justice or justices that such poor person is unable to travel, by reason of sickness or other infirmity, or that it would be dangerous for him or her so to do, the justice or justices, making such order of removal, or granting such vagrant pass, are hereby required and authorised to suspend the execution of the same, until they are satisfied that it may safely be executed, without danger to any person who is the subject thereof; which suspension of, and subsequent permission to execute the same, shall be respectively indorsed on the said order of removal, or vagrant pass, and signed by such justice or justices; and no act done by any such poor person continuing to reside in any parish, township, or place, under the suspension of any such order, shall be effectual, either in the whole or in part, for the purpose giving him or her a settlement in the same; and the charges proved upon oath to have been incurred by such suspension of any order of removal may, by the said justices, be directed to be paid by the churchwardens and overseers of the parish or place to which such poor person is ordered to be removed, in case any removal shall take place, or in case of the death of such poor person before the execution of such order; and if the churchwardens or (a) See this section and other sections, ante, 708, 709. of overseers of the parish, township, or place, to which the order of removal Sect. 3. "And, in order to avoid any pretence for forcibly separating husband and wife, or other persons nearly connected with, or related to each other, and who are living together as one family at the time of any order of removal made, or vagrant pass granted, during the dangerous sickness or other infirmity of any one or more of such family, on whose account the execution of such order of removal, or vagrant pass, is suspended; be it further enacted and declared, That where any order of removal or vagrant pass shall be suspended by virtue of this or the said recited act, on account of the dangerous sickness or other infirmity of any person or persons thereby (a) See this section and other sections, ante, 709, 710. Thirdly, Of the order of removal, &c. 7. Of suspending the orders of removal. Any magistrate may take the exinfirm pauper as to his settlement, amination of an and report to petty sessions. An order of removal made by two justices upon the examination of the pauper taken by one of them pursuant to stat. 49 Geo. 3, c. 124, s. 4, need not state the special circumstances of taking the exami nation, &c. Where, at the time of making the order of re. moval, the pau be removed, and an order of suspension was made: Held, that his presence was not necessary if to move. directed to be removed or passed, the execution of such order of removal or vagrant-pass shall also be suspended for the same period, with respect to every other person named therein, who was actually of the same household or family of such sick or infirm person or persons at the time of such order of removal made, or vagrant pass granted. Sect. 4. Enacts, "That whenever it shall happen that any pauper is by age, illness, or infirmity, unable to be brought up to the petty sessions to be examined as to his or her settlement, it shall be lawful for any one magistrate acting for the district where such pauper shall be, to take the examination of the said pauper, and to report the same to any other magistrate or magistrates acting for the said district; and for the said magistrates, upon such report, to adjudge the settlement of the said pauper, and make and suspend the order of removal, as fully and effectually, to all intents and purposes, as if the said pauper had appeared before two magistrates.” Rex v. South Lynn, All Saints, M., 4 M. & S. 354. Removal of E. Smith, widow, and her children, from St. Margaret's to South Lynn, All Saints. Order confirmed. Case: The order was founded upon the examination of the pauper taken before one justice, and reported to the other, pursuant to 49 Geo. III. c. 124, s. 4. The pauper being at the time of her examination sick, and unable to travel, the justices suspended the order. The question was, Whether this order was void, as it omitted to set out that the examination was taken before one justice only, and was reported to the other justice, so as to shew the particular jurisdiction and authority of the justices under the statute ?-Lord Ellenborough, C. J. The justices have no jurisdiction at the common law, but only what is given to them by statute; and the argument is as if this were a proceeding contrary to the common law. It seems to me that the statute in question does not make it necessary for the justices to state the proceedings had under it in their order.-Le Blanc, J. The statute enacts, That in case the pauper is by age, or other infirmity, unable to be brought up to be examined as to his settlement, it shall be lawful for one magistrate to take his examination, and report it to another, and for those magistrates, upon such report, to adjudge the settlement; but I do not find that the statute makes any alteration in the form of the order.-Per. Curiam. Order confirmed. Rex v. Everdon, 9 East, 101. On the 19th of June, 1805, an order was made to remove a pauper from Everdon to Wappenham; at the same time an order of suspension was made. By an order of 3rd December, 1806, per was too ill to reciting the death of the pauper, and that 201. 8s. 6d. expence had been incurred by the suspension, the same magistrates directed the parish officers of Wappenham to pay that sum to Everdon. Against this last order an appeal was lodged at the ensuing sessions, and the order quashed, &c. The case stated that the order of removal was made upon the examination of the pauper's he be ill, and unfit father only, who swore that the pauper, from excessive infirmity and sickness, was unable to be brought before the justices who made the original order for examination, and that the said justices at the same time made the order for suspension. The pauper died without having been removed, and she had never been before the justices at any time upon the matter, nor been examined by them when they made the order of suspension.-Lord Ellenborough, C. J., construed the words, "In case any poor person shall from henceforth be brought before any justice or justices of the peace for the purpose of being removed," to mean, in case a question concerning the removal of any poor person shall be brought before the justices of the peace, for the purpose of his removal, &c. And he said that the language of the act adverted to the case which most generally happens, where the pauper is brought before the magistrate to be examined as to his settlement; but that it appeared from Rex v. Bagworth, that it was not necessary in all cases, though if it can be, it is fit it should be so, but not absolutely necessary. And that all that the act meant was, not that where any person was brought personally, but where his case was brought judicially before the magistrates, for the purpose of his removal, that they should have power to suspend the execution of the order of removal, if it appeared to them by due examination of the facts, that from sickness or infirmity of the party the removal could not then safely be made. And he added, that in thus strain ing the words of the act, he did not go further than was done in Antony v. Cardigan, where the description of a person not having any child, was construed to mean not having any child which could be a burthen to the parish where the father was hired and served. The other judges agreed, and the order of sessions quashed. Rex v. Chagford, 4 B. & A. 235. On the 2nd December, 1816, two justices removed William Endacott from Chagford to Staverton. This order was suspended. On the 1st of July, 1817, the parish officers of Chagford, believing the pauper sufficiently recovered to be removed, an order was made and held for the payment of 22l. 17s. 14d., the expence of the suspension. Immediately after this order was made, it was ascertained that the pauper was still too ill to be removed, and, on the 7th of July, the justices signed a second order of suspension. On the 16th of May, 1819, the pauper's father died at Chagford, and, by his death, two freehold houses in Chagford descended to the pauper, as heir-at-law. The parish of Chagford thereupon ceased to relieve the pauper. On the 7th of February, 1820, another order was made for the removal, and also for the payment of 60l. 9s. expences of the suspension. The pauper was never removed; but on the 18th of February, 1820, the appellants were, for the first time, served with the order of removal, and with the several other orders here mentioned, and on the same day payment was demanded of the expences incurred by the suspension. The parish of Staverton gave notice, that they intended to appeal against an order made by Baldwin Fulford and George Gregory, bearing date the 1st of July, 1817, so far as the same order directs the payment of 221. 178. 14d.; and also of an appeal against another order, by Baldwin Fulford and George Gregory, bearing date the 7th day of February, 1820, so far as that order directs the payment of 60l. 9s. The sessions quashed both orders, subject to a case.-After hearing Nolan and Tyrrell in support of the order, and Tancred, contra, Abbott, C. J., said, In this case, we are called upon to put a new construction on this act of parliament, which was passed in order to prevent a grievance, arising from the too great temptation afforded to parish officers by orders of removal, to convey paupers from one place to another during sickness. The second section recites, that poor persons are often passed to the place of their settlement during the time of their sickness, to the great danger of their lives; and it gives a power to magistrates, in order to remedy this inconvenience, of not carrying their order into immediate effect, but of suspending its operation for a time. But then, in order to prevent this from producing any hardship to the removing parish, it provides, that no act done by the pauper, during the suspension, shall give him a settlement; and empowers the magistrates to order the intermediate charges to be paid by the parish to which the order is made, in case any removal shall take place, or in case of the death of such poor persons, before the execution of such order. This power, however, seems to me to be confined to these two cases only, viz., the removal and death of the pauper. Whether or not it would have been expedient for the legislature to have provided for the present case, it is for this Court to say. All that we can do is to determine, that the non-removal of the pauper prevents the case from falling within the act. I should have thought, indeed, that as the order of the magistrates, not being within the act, was altogether nugatory, the proper course for the sessions to have pursued would have been, not to have quashed the order, but to have dismissed the appeal. However, as they have done substantially right, I think their order ought to be confirmed.—Bayley, J., observed, that a very long period had elapsed, during which this order remained suspended, and no notice of it was given to the opposite party. If that notice had been given, (and there are no words in the act that supersede the necessity of it,) it might have enabled the other parish to have made prompt inquiry, and to have ascertained the fact relative to the settlement of the pauper.-Holroyd, J., thought the statute could not be construed so as to apply to this case, although probably the legislature would, if it had occurred to them, have provided for it. Order of sessions confirmed. Rex v. Englefield, 13 East, 317. Order was made for the removal of Joseph Timms, Elizabeth his wife, and two infant children, by name, from Thirdly, Of the order of removal, &c. the ordering moval. of and children, was suspended on ac count of the husband's sickness, who afterwards died, and the wife and children re. moved, without taking off the sus pension, is no reason for the sessions quashing the order of removal. A suspended order of removal must be served within a reason able time. There fore, where an order of removal was made and same day, on ac. count of the age and infirmity of she survived three years, but no notice of the order of removal was served on the parish to which she was ordered to be removed, till after her death: Held, was not within a reasonable time, that the service Englefield to Cassington; the order was suspended as to Joseph, until it should appear that he was sufficiently recovered from his illness to be removed without danger; and a third order was made on 17th March, 1810, which stated that Joseph died on the 7th instant, and that the charges incurred by the suspension amounted to 411. 4s. 6d., which they directed the parish of Cassington to pay. After the death of Joseph, his wife and children were removed, under the first mentioned order, from Englefield to Cassington; and on appeal against such order, and also the order for payment, the three orders were quashed, because the order suspending the order of removal had not been itself taken off by an order of magistrates on the death of Joseph. A difficulty occurred, upon the opening of the case, which the Court thought could not be got over; upon what ground the sessions could quash these orders which, upon the face of them, were all good, when the real objection to the removal of the wife and two children, if any, was the want of another order of magistrates taking off the suspension of the original order of removal. The respondents' counsel, indeed, suggested, that the death of the husband operated as a natural death to the order of suspension, but the Court did not decide the case on that ground, and it was observed, e contrà, that the terms of the order of suspension did not apply to the case of death, but it was to operate till the sick person could be safely removed. For the other reason, however, the Court quashed the order of sessions, and Le Blanc, J., referred to the precedent of a permission to remove after an order of suspension, given in the new (viz. the 21st) edition of Burn's Justice, as being best adapted to such a case. Rex v. Lampeter, 3 B. & C. 454; 5 D. & R. 310; 2 D. & R. Mag. Ca. 437. Order was made on the 14th May, 1821, for the removal of Gwen Rees, widow, from Lampeter to Llanfairclydoge, but on the same day suspended on account of the age and infirmity of the pauper, which rendered it unsafe for her to travel. The same justices, on the 16th February, 1824, made an order, which recited that the pauper was dead, and that an expense of 127. 13s. 6d. suspended on the had been occasioned by the suspension which they directed the parish of Llanfairclydoge to pay. Both these orders were served upon the appellants, for the first time, on the same 16th February upon which they appealed the pauper; and against the order of removal; and the sessions held that the order of removal and suspension never having been served in the pauper's lifetime, nor after her death, until the money was demanded, the order of removal had become a nullity.-Abbott, C. J. I am of opinion that the sessions came to the right conclusion in this case. The utmost effect of Rex v. St. Mary-lebone is this; that the death of a pauper, during the suspension of an order for his removal, does not render that order a nullity; and that a subsequent order for payment of the expenses is a grievance upon the parish to which the pauper is ordered to be removed, for which an appeal will lie against that order. No question arose in that case, respecting the necessity of serving or giving notice of the order of removal, or the order for suspending it; that question arises, for the first time, in the present case. The legislature has not fixed any precise time for the service, but it is evident from the 49 Geo. III. c. 124, s. 2, that such an order may be served previous to a removal; and if a suspended order may be served, and reason and convenience require that it should be served before removal, the service should be within a reasonable time. In this case, a period of three years elapsed between the issuing of the original order of removal, and the death of the pauper, and during all that period no notice was given, either of the original order, or of the order of suspension. I am, therefore, of opinion, that the order of removal in this case, was not served within a reasonable time, and consequently that the order of sessions must be confirmed.-Bayley, J., observed, that by the delay of three years, the opportunity of examining the pauper had been lost, and the expense incurred in supporting the pauper may be thrown upon persons not inhabitants of the parish during that period.-Littledale, J., concurred. Rex v. Kynaston, 1 East, 117. A rule to shew cause why a mandamus not refuse indors should not issue to Mr. K., a magistrate of Essex, commanding him to back the warrant of distress issued by the magistrates for the borough of Colchester, for 20l. 16s. 3d., being the expences incurred by the parish of Lexden in and that the order of removal was void. The justices can-' ing the warrant for distress. |