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or by leaving a copy of the order, and at the same time producing the Thirdly, original. It is admitted, that the service in 1814 was defective; but then, of the order of in 1815, there was a second service. Now, if that was the service of a copy, remoral, &c. it is bad, for the same reason as vitiated the previous service. It is, however,
7. Of suspending contended, that this was the service of a new original order. But if we the orders of re were 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.
As an order of removal executed upon the parish to which it is directed, 8. Of filing order and which is unappealed against, is binding upon such parish as to the of removal unap:
) 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 church wardens, 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 so." And upon this it is remarked, in a former edition of Burn's justice (6)! 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 atthe sessions, and the other kept by the township. [See enactment, 17 Geo. II. c. 5, s. 8, (ante, 728.)]
It will be seen that by 3 W. & M. c. 11, s. 10, (ante, 706), a penaity of 51. 9. Penalty and
(a) See division of the subject, ante, 734.
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, 8c.
refusal may be punished by indictment, notwithstanding this enactment; punishment for
which does not apply in all cases. not obeying order Rex v. Davis, Say. 163; 1 Bott, 338. Indictment for refusing to receive of removal(a).
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.(6) Fourthly, Of If the person removed return of his own accord, without a certificate, persons return- the 13 & 14 Car. II. c. 12, s. 3, directs, that he shall be punished as a ing after re- vagabond. Upon this, Lord Tenterden has remarked, in Rex v. Barham, moval.
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, retum 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 returning to the
Berkshire held a petty sessions to search after vagrants, and a poor man, place removing
residing in the parish of Bingfield, being examined, confessed himself to be charged there.
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 10 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
from, must be
with on oath.
(a) See subdivision of the subject, ante, 734.
malice appeared in the justice, the Court allowed the prosecutor to accept Thirdly, of some proposal made by the justice, to make him satisfaction.
Of the order of Balduin v. Blackmore, Esq., 1 Burr. 595. Baldwin and his wife removal, &c. were removed, by order of two justices, from Marsilen to Banknewton; which
8. Of persons reorder 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 im, 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 Is. 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 htisband.-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 1s. 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; becanse, 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 The commitment out of custody, because, Ist, The commitment does not state to what place
what place the the man returned : 2dly, Nor that he returned without a certificate: 3dly,
pauper returned. 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. The pauper returned to the parish from Returning to reVOL. IV.
must state to
8. Of persons re.
side on a tene.
magistrate on an information
had been remov
that this convic. tion was good upon the face of
Thirdly, whence he had been removed, and resided upon a tenement of the yearly Of the order of value of 101. and upwards: the Court said, he had a right to return, for that removal, &c.
an order of removal only prevents a return in a state of vagrancy.
Mann v. Davers, 3 B. & A. 103. Action for false imprisonment. The cause turning after re- was tried before Dallas, C.J., at the Suffolk spring assizes, 1818, when a ver
dict was found for the plaintiff, 40s. damages, subject, &c. Defendant, a ma
gistrate of the county of Suffolk, committed the plaintiff to prison as an idle ngevelde toe mare and disorderly person, under 17 Geo. II. c. 5. The defence was, a regular pounds: Held, recorded conviction of the plaintiff, and the information stated, that, within to be right.
three months, the plaintiff unlawfully returned from the parish of A. to the A conviction stated, that plain- parish of B., from which parish he had been removed to the said parish of tiff, having been A. by an order, &c. without bringing a certificate from the said parish of A. brought before a
The conviction then stated, that plaintiff, being brought before the defendant,
had confessed himself guilty of the offence. It appeared, that when the charging him plaintiff returned to the parish, he was not in a state of pauperism, but with having unlawfully return
maintained himself by his own labour, and was actually taken up, upon the ed, without a cer- charge upon which he was convicted, when he was working in the harvesttificate, to a parish fields. The question was, Whether the conviction was a bar to the action ?
-Abbott, C. J. This infornation pursues the language of the statute, and ed, and that upon in so doing, it does all that is necessary to be done. The returning to the confessed himself parish without a certificate was, at least
, prima facie evidence of his being guilty : Held, an idle and disorderly person, and then it was for the defendant to show
that he had a lawful excuse for returning. It would be extraordinary, in
deed, if a person who refuses to answer, and suffers the magistrate to conit, and that it was vict him, should afterwards be at liberty to bring an action against the not necessary to
magistrate; the defendant here, confessed the substance of the charge, and pressly any act of when called upon for an excuse, he does not give one, but suffers imprison
ment, in order that he may afterwards bring an action against the magising for the party convicted, to
trate.- Bayley, J. The facts of the case induce a suspicion, that it was one show, in his de- of considerable hardship on the party who had been removed. We must, fence that he did however, consider the situation in which magistrates would be placed, if a
party, who neglected to make his defence when he had the opportunity, could afterwards sue the magistrate. It seems, that the parish-officer had lodged before the magistrate a complaint, upon which, if established, the party was liable to punishment. The substance of the charge was, that he had returned unlawfully; if he could show any lawful excuse for his return he might have stated that before the magistrate:'he, however, confesses that he is guilty of the offence charged, upon which the law says, that he is an idle and disorderly person, and I am of opinion that he cannot now tum round and bring an action against the magistrate.-Holroyd, J., concurred.— Best, J. This conviction appears to be in the ordinary form; nevertheless, I must say, that the parish-officer acted most improperly in taking a man up as a vagrant, who was at work in the harvest-field. But when he was bef the magistrate, and alleged no fact to show that he was not, as he appeared to be, in a state of vagrancy, the magistrate could do nothing but convict him. Had he stated to the magistrate that he returned for the purpose of working, it would have been a question for the Court, whether the magistrate should not have used the language of this Court in Rex v. Fillongley.-Judgment for the defendant.
state in it ex
vagrancy, it be
state of pauperism.
Fifthly, Order of removal of one
(Fifthly)-Order of Removal of one Certificated.(a) The nature of a certificate, and the provisions as to its form, delivery, and extent, are explained under the title “ Acknowledgment of Settlement by Certificate” (ante, 662).
It is provided by the 3 Geo. II. c. 29, s. 9, “That when any overseer or overseers of the poor of any parish or place, or other person, shall remove back any person or persons, or their families, residing in such parish or place, or sent thither by certificate, and becoming chargeable, as aforesaid, to the
Overseers to be reimbursed on reconveying cer. tificate persons.
(a) See division of the subject, ante, 705.
parish or place to which such person or persons shall belong, such overseers, Fifthly, Order or other persons, shall be reimbursed such reasonable charges as they may of removal of have been put unto, in maintaining and removing such person or persons,
one certificated. by the churchwardens, or overseers of the poor, of the parish or place to which such person or persons is or are removed, the said charges being first ascertained and allowed of, by one or more of his Majesty's justices of the peace, for the county or place to which such removal shall be made; which said charges, so ascertained and allowed, shall, in case of refusal of payment, be levied by distress and sale of the goods and chattels of the churchwardens and overseers of the poor of the parish or place to which such certificate person or persons is or are removed, by warrant or warrants, under the hand and seal, or hands and seals, of such justice or justices, returning the overplus, if any there be; which warrant or warrants, he or they are hereby required to grant."
There does not appear to have been any difficulty in understanding or carrying into effect the above provision, as the books present no cases upon its construction. It is probable, that the only question which could arise, requiring the judgment of the superior court, would be, Whether, when a certificate person has been once removed back to the certifying parish, the latter has the power of sending him into the same parish from which he has been so removed, again, with a fresh certificate. There is nothing in the statute, nor in the reason or policy of the law, to prevent it. instances, if the person finds it expedient to quit his own parish once more in search of employment, he will prefer to return to the place in which he has been before, as most likely to answer his purpose; and this is not likely to operate as a hardship upon the parish to which he so returns, as, should he again become chargeable, the expense of again removing him, and of his maintenance in the mean-time, must be borne by the parish from which he is certificated, [And see the observations of Abbot, C. J., ante, 662.]
(Sixthly)—Appeal Against an Order of Removal.(a) The law relating to appeals has been classed as follows:
1. Who may Appeal, and to the Sessions of what Place.
Sixthly, Appeal against an order
c 13 & 14 Car. 2, c. 12.
1. Who may Appeal, and to the Sessions of what Place. The 13 & 14 Car. II. c. 12, s. 2, enacts, “That all persons who think 1. Who may apthemselves aggrieved by any such judgment of the said two justices, may appeal to the justices of the peace of the said county, at their next quarter sessions, who are hereby required to do them justice according to the merits Power of appeal. of their cause."
ing. By 3 W. & M. c. 11, s. 10, it is enacted, “That if any person be removed 3 W. & M. c. 11. by virtue of this act, from one county, riding, city, town-corporate, or Churchwarden liberty, to another, by warrant under the hands and seals of two justices of the peace, the church wardens or overseers of the poor of the said parish by warrant of or town, to which the said person shall be so removed, are hereby required to two justices of receive the said person, and if he or they shall refuse so to do, he or they pounds penalty. so refusing or neglecting, (upon proof thereof by two credible witnesses upon oath, before any justice of the peace of the county, riding, city, or towncorporate, to which the said person shall be so removed,) shali forfeit, for each offence, the sum of five pounds, to the use of the poor of the parish or town from which the said person was removed, to be levied by distress and
must receive a person removed
(a) See division of the subject, ante, 705.