the maintenance of D. Glover and family in his illness, during the suspen-
sion of an order for removing him to his parish, and 30s. for the reasonable
charges of the levy. D. G., on the 31st of May, 1799, as he was driving a
waggon on the public road leading through Lexden, had the misfortune to
break both his legs, and was immediately taken to the workhouse there,
where he continued till the 31st of July. On the 6th of May, two justices
took the pauper's examination, and made an order for removing him and
his wife, who was then attending him, from Lexden to Coggeshall in Essex;
and, at the same time, the magistrates indorsed an order of removal, by virtue
of the 35 Geo. III. c. 101, stating, that it would be dangerous to remove him
at that time; and he continued there, accordingly, till the 31st of July, when
the order of removal was, by their permission, executed. The same magis-
trates, afterwards, made an order on the parish officers of Great Coggeshall, to
repay the parish of Lexden, 20l. 16s. 3d., for expences incurred in the cure
and maintenance of the pauper: and the overseers of Great Coggeshall, not
paying this within three days after demand, nor giving notice of appeal, as
required by the same act, the magistrates granted a warrant of distress: but
Great Coggeshall, being without the jurisdiction of the magistrates granting
the warrant, the parties applied to the defendant, who was an acting magis-
trate within the jurisdiction of Great Coggeshall, to indorse the warrant of
distress for execution, which he refused; whereupon, the present rule was
obtained.-Lord Kenyon, C. J., after looking into 35 Geo. III. c. 101, said,
It was impossible to make any question upon this part of it: it is peremptory
upon the magistrate, under these circumstances, to indorse the warrant; he
has nothing to do with the propriety of making the original order, or grant-
ing the original warrants; he acts merely ministerially; in like manner as
justices do in allowing a poor rate, whose signatures are mere matter of
form. The justices, indeed, by whom the original order and warrant were
issued, had a discretion to exercise upon the matter submitted to them: but
the magistrate who merely indorses the warrant of another, under this act, is
not answerable for the legality of it, which remains at the hazard of him
who first granted it; here, also, the order, being for payment of above 201.,
might have been appealed against, by the parties who were dissatisfied with
it, and then the merits of the question might have been discussed; but the
Court cannot do otherwise, at present, than make the rule absolute.
Rex v. Bradford, 9 East, 97. An order was made on the 7th of July,
1807, for the removal of Sarah Spires, from Bradford to Melksham, and
suspended. On the 16th of September following, they made a third order,
directing the first order to be executed, and 417. 14s. 9d. expence, which had
been incurred by the suspension of it, to be paid by Melksham to Bradford.
On the 17th of September, the pauper was carried to Melksham; and a
motion was made at the Michaelmas sessions following, to enter and adjourn
an appeal against the last order for the payment of the expences, which was
agreed to by the Court; but they reserved the question, whether any appeal
were allowed to the sessions, the appellants not having given notice of
appeal within three days after the removal of the pauper to the respondent
parish. But Lord Ellenborough, C. J., held the meaning of the clauses to
be clearly this; if the party aggrieved by the order, and intending to ap-
peal against the amount of the charges, will give notice of the appeal within
three days after demand made, he shall be relieved from the inconvenience
of a distress: but though he neglect to do so, he only subjects himself to that
inconvenience; for his right of appeal, which is afterwards given, is not
thereby taken away; and if he afterwards think proper to appeal, within the
time appointed by law for appeals against orders of removal, he is expressly
empowered to do so. Order of sessions confirmed.

Rex v. St. Mary-le-bone, Middlesex, 13 East, 51. An order was made on 3rd July, 1809, for the removal of James Harlow from Hitchin to St. Mary-le-bone, the execution of which was, at the same time, suspended by reason of the sickness of the pauper. By an order of the 18th of September following, the same justices, reciting that J. H. was dead, directed the expence incurred by the suspension to be paid. St. M. appealed against the order of removal, and the order for the payment of the charges. The

Thirdly,

Of the order of removal, &c.

7. Of suspending the orders of removal.

Time of appeal

ed.

An order of re

moval, dated 1st August, 1814, and an order of sus

thereon, and a

copy thereof, was, in 1814, served upon the appellants, but the original was not produced at the same time; and subsequently, in 1815, another part of the order and indorsement executed by the

sessions dismissed both appeals, and also stated, that neither of the orders of removal or suspension thereof, were served on the parish officers of St. M., until after the death of the pauper, which happened between the 3rd and 11th of July, 1809; after which time the parish officers of St. M. were served with the orders, and 51. 28. 8d. given thereby was demanded, at which time they gave notice of appeal to the parish officer of H., against the order of removal of 3rd July, 1809, which said order was suspended on the day of the date thereof; and also against the order of adjudication, dated 18th September, 1809, &c., for the payment of 51. 2s. 8d. for the charges incurred by the suspension, dated 11th December, 1809. The respondents offered no evidence that the pauper was settled in the parish of St. M., but contended that no appeal could lie against the order of removal, as it had never been executed; and that there can be no execution of an order of removal, but by delivering the pauper to the officers of the parish, until which time the parish is not aggrieved, and until aggrieved (under all the antecedent subsisting laws relating to the settlements of the poor) no right of appeal can arise. That the order for the payment of the 57. 2s. 8d., being less than 207., no appeal is given, and the session have no authority to review or alter the sum.-Lord Ellenborough, C. J. The appeal is by the 3 W. & M. c. 11, s. 9, given to the party aggrieved by the determination of the justices respecting the settlement of the pauper; then, though the grievance grow by a subsequent statute, the party is still aggrieved by the order of removal. Before the 35 Geo. III., there was no grievance to the parish to which the order of removal was made, until it was executed: but that statute attaches a contingent consequence to the order itself in this case, which, coupled as it is with the order for payment of costs, makes it a grievance, though the pauper died before any removal in fact took place. Then the appeal against the order of costs is not against the quantum, but against the liability of the parish to pay any costs at all in this case; taking it as a consequence of the order of removal appealed against. Order of sessions quashed.

Rex v. Alnwick, 5 B. & A. 184. Order of removal, dated the 6th of ing, how comput. August, 1814, of Margaret Walker, from Alnwick to the parish or parochial chapelry of Haydon, at the Michaelmas sessions in 1820, was discharged. Case: The pauper, at the time of the above order, was in such a state of health that she could not be removed without danger; the execution of the pension indorsed order was, therefore, suspended. About the 6th September, 1814, a copy of the order and indorsement was served upon one of the overseers of Hay. don, by a person sent by one of the overseers of Alnwick, such person not then having the order with him; and on the 4th October, 1815, another part of the original order of removal and indorsement was served upon one of the overseers of Haydon by the overseers of Alnwick. This last had not been executed by the removing justices on the 6th August, 1814, but by them in September, 1815. It, however, bore date the 6th August, 1814. The order, originally executed, was not at any time shewn to any of the overseers of Haydon. The suspension was taken off in August, 1819, and same justices, but an order was then indorsed by the justices for the payment of 1617. 17s. 5d., the charges incurred by the suspension. On the 5th of September, 1820, the pauper was removed from Alnwick to Haydon, and an appeal against the order of removal was entered at the Michaelmas sessions, 1820. It was contended, that the appellants could not be heard, as they had omitted to appeal against the order of removal within the time allowed by law: the 49 Geo. III. c. 124, s. 2, enacting, that when the execution of any order of removal shall be suspended, the time of appealing against such order shall be computed according to the rules which govern other like cases, from the time of serving such order, and not from the time of making such removal. The Court permitted the case to proceed. After hearing Marryat in support of the order, and Littledale, contra, Abbott, C. J. The objection made here to the judgment of the court of quarter sessions, is, that they have allowed this appeal, when, in point of law, the appellants were not entitled to it, not having appealed within the time allowed by law. That question depends entirely upon the validity of the service of the order. Now, that service, in order to be valid, must either be by delivery of the order itself,

bearing date in August, 1814, was served upon the appellants. The

pauper was not removed till 1819,

when an appeal was duly entered:

Held, that the services of the original order of removal in 1814 and 1815,

were both defec. tive, and that the in time, notwithstanding 49 Geo.

appeal was made

3, c. 124, s. 2.

Thirdly,

Of the order of removal, &c.

7. Of suspending

or by leaving a copy of the order, and at the same time producing the original. It is admitted, that the service in 1814 was defective; but then, in 1815, there was a second service. Now, if that was the service of a copy, it is bad, for the same reason as vitiated the previous service. It is, however, contended, that this was the service of a new original order. But if we the orders of rewere to hold that to be so, we should, as it seems to me, give to it an effect moval. not intended by the justices who executed it; for if they had intended it as a new order, they would have given to it a date corresponding with the time of its execution. I think, that they never could have intended it as a new order, but only as an authenticated copy of their former order; and that the court of sessions were right in so treating it. In that view of the case, it is clear that both services are defective, and, consequently, that the appeal was in time, and the order of sessions is therefore right.-Order of sessions confirmed.

So.

"

As an order of removal executed upon the parish to which it is directed, and which is unappealed against, is binding upon such parish as to the settlement of the pauper at that period, and may, therefore, become an important piece of evidence at some future period, the expediency of preserving the document itself in an authenticated form, is obvious. Upon this subject there is a report as follows:-Anonymous, 1 Salk. 406. Per Holt, C. J. "The most regular way for justices to proceed upon the 14 Car. II. in removing a poor person, is to make a record of the complaint and adjudication, and upon that, to make a warrant under their hands and seals to the churchwardens, to convey the persons to the parish to which they ought to be sent, and deliver in the record per proprias manus into Court, next sessions, to be kept there amongst the records, to charge the parish; and that record may be well removed by the general certiorari to the justices of the peace: Mr. Broderick said, he had advised the justices in Surrey to do And upon this it is remarked, in a former edition of Burn's justice (b)! But how such record shall charge the parish is not perhaps very evident; unless it shall appear likewise, that a removal was made in pursuance of such order; otherwise, how shall the parish be charged by an order which possibly they know nothing of, and consequently could have no opportunity to appeal against? It is there said to be usual, in some places, for the overseers who made the removal, to bring the original order to the next sessions, and there make oath, that they removed the party in pursuance of such order, and if then there appeared to be no appeal against it, the order is confirmed by the Court, and filed amongst the records. And although such confirmation is merely void, because the sessions have no jurisdiction therein, unless in the case of appeal, which here is not; yet such confirmation is also superfluous and needless. But an order, not appealed against, is final without more; and as such order is a record of itself, and contains in it the adjudication of the justices, it seemeth, that the Court (at the next sessions) may record thereupon, that no appeal was made, for in that case they are the proper judges, whether an appeal was made or not. But still it seemeth, that unless it be upon appeal, they have no power to inquire concerning the removal, for that as to them is extrajudicial: but the justices who made the order, have a right to see it executed; and, therefore, they may inquire upon oath, whether the removal was duly made; and if it was, they may record the whole. Which record of the whole proceedings, being delivered in at the next sessions, and the Court thereupon recording likewise, that no appeal was made, in such case perhaps the parish may be concluded. [See the form of such a record, post, Appendix.]

To such record may be annexed the order of removal confirmed at the sessions on appeal, or not appealed against. And it may be proper to have duplicates, one filed at the sessions, and the other kept by the township. [See enactment, 17 Geo. II. c. 5, s. 8, (ante, 728.)]

8. Of filing order

of removal unap

pealed against(a).

It will be seen that by 3 W. & M. c. 11, s. 10, (ante, 706), a penalty of 51. 9. Penalty and

(a) See division of the subject, ante, 734.

(b) 3 Burn's, Poor, 16th edit.

Thirdly,

is inflicted upon churchwardens or overseers for refusing to receive a person Of the order of sent to them by warrant of removal. The following case shews that such removal, &c. refusal may be punished by indictment, notwithstanding this enactment; which does not apply in all cases.

punishment for

not obeying order of removal (a).

Fourthly, Of persons return ing after removal.

Persons removed returning to the place removing from, must be charged therewith on oath.

Rex v. Davis, Say. 163; 1 Bott, 338. Indictment for refusing to receive a pauper, sent by order of two justices to the liberty of the Tower. Plea, not guilty. Verdict against the defendant. It was moved, in arrest of judgment, that 3 W. III. c. 11, having directed another method of punishment, to wit, a fine to be levied by warrant of distress in a summary way, that should be strictly pursued.-Denison, J. If a statute create a new offence, and give a punishment, that rule must be followed; but if the offence was before at common law, and a new punishment only given, it is indictable also. So if one statute give one punishment, and another statute give another punishment, the prosecutor has his election. This was an offence before the 3 W. III. Such a parish officer might have been indicted on the 13 & 14 C. II. c. 12, or what would have become of a pauper in case of disobedience between the passing those acts; but the 3 W. III. c. 11, does not relate to removals from parish to parish, but from county to county; and, therefore, there is no remedy but by indictment.—Foster, J. In all cases where a justice has power given him to make an order, and directs it to an inferior ministerial officer, and he disobeys it, if there be no particular remedy prescribed, it is indictable. And judgment was given against the defendant. To which may be added, that the 13 & 14 C. II. c. 12, requires, in express words, that such officer refusing, shall be bound over to the assizes or sessions, there to be indicted, (ante, 705.)

Rex v Llanwinio, 4 T. R. 473. An order of removal may be executed a year after it is signed, if the pauper's circumstances be not altered in the interval.

(Fourthly)-Of Persons Returning after Removal. (b)

If the person removed return of his own accord, without a certificate, the 13 & 14 Car. II. c. 12, s. 3, directs, that he shall be punished as a vagabond. Upon this, Lord Tenterden has remarked, in Rex v. Barham, 8 B. & C. 99, (ante, 579,) that "it was insisted that the return of the pauper, after the removal, was an offence against the law; but since the 35 Geo. III. c. 101, this may admit of considerable doubt. Before that act, a person likely to become chargeable was removable, and if he returned, after the removal, he returned in the same condition; but as that act renders a person irremovable, unless actually chargeable, he may, after his removal, return with the means of subsistence; and it is difficult to say that, by so returning, he commits an offence." This view sanctions the doubts expressed by Mr. Evans, in a note on 17 Geo. II. c. 3, and 5 Geo. IV. c. 83, s. 3, which enacts, that persons returning and becoming chargeable to the parish from whence they had been removed, shall be deemed idle persons.

Rex v. Angell, Cas. Tem. Hardw. 124; 2 Bott, 884. The justices of Berkshire held a petty sessions to search after vagrants, and a poor man, residing in the parish of Bingfield, being examined, confessed himself to be settled in the parish of Sunning; whereupon the justices ordered him to be removed to Sunning. On his return from Sunning, without a certificate, the defendant, one of the justices present at the petty sessions, did, without any summons, or oath made of his return, commit the man to the house of correction, where he was kept three days. Upon this, the Court was moved to grant an information against the justice. The Court allowed the transactions of the petty sessions, in this case, to be irregular, because there was no complaint made of his being chargeable, or likely to be chargeable to Bingfield; but yet, as that was only a mistake of judgment, the Court would not have thought it worthy of punishment; but the sending him to the house of correction, after having convicted him unheard, being contrary to natural justice, they were inclinable to grant an information; but as no

(a) See subdivision of the subject, ante, 734.

(b) See general division of the subject of Removals, ante, 705.

malice appeared in the justice, the Court allowed the prosecutor to accept of some proposal made by the justice, to make him satisfaction.

Thirdly, Of the order of removal, &c.

8. Of persons re

must be for a

Baldwin v. Blackmore, Esq., 1 Burr. 595. Baldwin and his wife were removed, by order of two justices, from Marsden to Banknewton; which order was not appealed against. Afterwards, they both of them returned turning after reto Marsden, without bringing a certificate; complaint of which being made moval. in writing, and upon oath, to the defendant, a justice, he issued his warrant The warrant of to bring them before him, who, being brought, and the facts fully proved commitment upon oath, he committed them to the house of correction, until they should time definite. be discharged from thence by due course of law. Upon the trial of this cause, there was a verdict for the plaintiff, and 1s. damages, subject to the opinion of the Court, on two questions: 1. Whether there ought not to have been a previous conviction of vagrancy? 2. Whether the wife could be convicted of vagrancy, or be liable to be sent to the house of correction for returning without a certificate, as she only accompanied and resided with her own husband? On the argument of this cause, Lord Mansfield, C. J., desired to be informed how the usage had been about sending the wife to the house of correction with the hushand: (though it would not, indeed, as he observed, alter the law.) Afterwards, this case being mentioned as standing for the opinion of the Court, it was said, for the defendant, that he had several certificates of its being the practice for justices to commit the wife, as well as the husband, for returning to the parish from whence they had been removed, although she so returned with her husband.-Lord Mansfield, C. J., delivered the resolution of the Court. He observed, that it was manifest the justice had not acted intentionally wrong. And it is plain that the jury were of that opinion, as appears by their giving only Is. damages. The Court would gladly, therefore, have leaned towards excusing him from suffering for what he had honestly done, if they could have found him justifiable by any legal excuse. But there is one fatal objection to his proceeding, which we cannot get over, and which puts all the other points out of the case; and that is, that the warrant of commitment is illegal. The legality of the warrant depends upon two acts of parliament, or at least upon one of them. For there are two acts of parliament, upon one of which two, this warrant must be founded; though it doth not appear upon which the justice proceeded. The two acts are 13 & 14 Car. II. c. 12, (a law made before certificates under the late acts existed;) and 17 Geo. II. c. 5, [which related to persons returning without bringing such a certificate, and is repealed by 3 Geo. IV. c. 40; see 5 Geo. IV. c. 83, s. 3, tit. Vagrants.] Now the warrant is not within the former of these acts: nor is the case itself within it. These persons did not go to any parish, carrying with them a certificate of their being inhabitants of their proper parish. The commitment is, till discharged by due course of law; whereas, upon this act, it should have been, to the house of correction, there to be punished as a vagabond, or to a public workhouse, there to be employed in work and labour. Nor can this warrant be good, on the latter act; because, the power given to the justice by that act is, to commit such offenders to the house of correction, there to be kept to hard labour for any time not exceeding one month: whereas, this warrant is quite general: it is an indefinite commitment; not for a precise, limited time, as the act directs. Therefore, the warrant of commitment is totally illegal; and, consequently, the plaintiff is entitled to the damages that he has recovered.

Rex v. Elere Cole, 2 Bott, 886. A motion was made to discharge a man out of custody, because, 1st, The commitment does not state to what place the man returned: 2dly, Nor that he returned without a certificate: 3dly, That it did not appear, that he had been before convicted as a vagrant, which prior conviction alone, under stat. 17 Geo. II. c. 5, gave a power of commitment for a month. The commitment was "for returning from the parish of St. Sepulchre's, after a legal warrant of removal from the parish of the Holy Trinity." Lord Mansfield: This commitment cannot be supported; it does not say to what place he returned.--Aston, J. It is totally uncertain.

Rex v. Fillongley, 2 T. R. 709.

VOL. IV.

The commitment must state to pauper returned.

what place the

The pauper returned to the parish from Returning to re

CC C