Thirdly, Of the order of removal, &c. 8. Of persons returning after removal. side on a tene ment of the year- A conviction tiff, having been brought before a magistrate on an information charging him with having unlawfully returned, without a cer whence he had been removed, and resided upon a tenement of the yearly value of 10l. and upwards: the Court said, he had a right to return, for that 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 was tried before Dallas, C. J., at the Suffolk spring assizes, 1818, when a verdict was found for the plaintiff, 40s. damages, subject, &c. Defendant, a magistrate of the county of Suffolk, committed the plaintiff to prison as an idle and disorderly person, under 17 Geo. II. c. 5. The defence was, a regular recorded conviction of the plaintiff, and the information stated, that, within three months, the plaintiff unlawfully returned from the parish of A. to the stated, that plain- parish of B., from which parish he had been removed to the said parish of A. by an order, &c. without bringing a certificate from the said parish of A. The conviction then stated, that plaintiff, being brought before the defendant, had confessed himself guilty of the offence. It appeared, that when the plaintiff returned to the parish, he was not in a state of pauperism, but maintained himself by his own labour, and was actually taken up, upon the charge upon which he was convicted, when he was working in the harvestfields. The question was, Whether the conviction was a bar to the action? -Abbott, C.J. This information pursues the language of the statute, and in so doing, it does all that is necessary to be done. The returning to the parish without a certificate was, at least, prima facie evidence of his being 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, indeed, if a person who refuses to answer, and suffers the magistrate to convict him, should afterwards be at liberty to bring an action against the magistrate; the defendant here, confessed the substance of the charge, and when called upon for an excuse, he does not give one, but suffers imprisonment, in order that he may afterwards bring an action against the magistrate.-Bayley, J. The facts of the case induce a suspicion, that it was one 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 tificate, to a parish had been remov. ed, and that upon confessed himself from which he that occasion he guilty: Held, that this conviction was good upon the face of it, and that it was not necessary to state in it ex pressly any act of vagrancy, it being for the party convicted, to show, in his de not return in a state of pauper ism. Fifthly, Order of removal of one certificated. Overseers to be reimbursed on reconveying certificate persons. 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 turn 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 before 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. (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 (a) See division of the subject, ante, 705. parish or place to which such person or persons shall belong, such overseers, or other persons, shall be reimbursed such reasonable charges as they may have been put unto, in maintaining and removing such person or persons, 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. In many 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. 5. Of Notice of Appeal. 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 themselves 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 of their cause." By 3 W. & M. c. 11, s. 10, it is enacted, "That if any person be removed by virtue of this act, from one county, riding, city, town-corporate, or liberty, to another, by warrant under the hands and seals of two justices of the peace, the churchwardens or overseers of the poor of the said parish or town, to which the said person shall be so removed, are hereby required to receive the said person, and if he or they shall refuse so to do, he or they 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,) shall 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 (a) See division of the subject, ante, 705. Sixthly, Appeal against an order of removal. 1. Who may appeal, &c. sale of the offender or offenders' goods, by warrant under the hand and seal of any justice of the peace of the county, riding, city, or town-corporate, to which such person was removed, to the constable of the parish or town where such offender or offenders dwell; which warrant, the said justice is hereby impowered and required to make; the overplus, if any be, to be returned to the owner or owners; and for want of such sufficient distress, then the said justice shall commit the said offender or offenders to the common gaol of the said county, riding, city, or town-corporate, or liberty, there to remain without bail or mainprize for the space of forty days: provided always, and be it hereby enacted, that all such persons who think themselves Persons aggriev. aggrieved with any such judgment of the said two justices, may appeal to the next general quarter sessions of the peace, to be held for the county, riding, city, town-corporate, or liberty, from which the said person was so removed.' ed by such re moval may appeal to sessions. Appeal from jus. tice of peace to quarter sessions, be final. Sect. 9. Provides, "That if any person or persons shall find him, her, or themselves aggrieved by any determination, which any justice or justices of whose order shall the peace shall make in any of the cases above said, the said person or persons shall have liberty to appeal to the next general quarter sessions of the peace, to be held for the said county, riding, or division, city, or towncorporate, who, upon full hearing of the said appeal, shall have full power finally to determine the same." Appeal against any order for removal to be de termined at quarter sessions. Pauper may ap peal to the sessions as well as the parish. Appeal against not of the corpo- An appeal from an order of borough justices must be to the And 8 & 9 W. III. c. 30, s. 6, enacts, "That the appeal against any order for the removal of any poor person from out of any parish, township, or place, shall be had, prosecuted, and determined, at the general or quarter sessions of the peace for the county, division, or riding, wherein the parish, township, or place, from whence such poor person shall be removed, doth lie, and not elsewhere; any former law or statute to the contrary thereof, in anywise, notwithstanding." Rex v. Hartfield, Carr. 222; 2 Bott, 924. Two justices removed Nicholas Wells from Hartfield to Frampfield; from which order, Wells, and not the parish, appealed. By the whole Court. The party may appeal as well as the parish. Rex v. Wendover, 2 Salk. 490; 2 Bott, 953. Two justices of St. Alban's remove a person to Wendover. Wendover appeals to the sessions of St. Alban's. -By the Court. The appeal ought to have been to the sessions of the county, and not of the corporation; and as it was, it was coram no judice. Rex v. Malden, Sett. & Rem. 10; 2 Bott, 959 n.-By Lord Parker, C. J. Where there is a town corporate that hath sessions of its own, and the justices within that town make an order there, if the parties will appeal, they must appeal to the county sessions, and not to their own sessions; for then there would be an appeal ab eodem ad eundem, there being, it may be, the same justices sitting who made the order. Rex v. East Donyland, Burr. S. C. 592; 2 Bott, 959. Two justices, for the borough of Colchester, removed the pauper from St. Giles's, in Colchester, to East Donyland, in Essex; and, on appeal to the quarter sessions of the county justices. borough, the justices there confirmed the order, and stated a case. Upon arguing the matter there, it was observed, that the appeal ought to have been to the county sessions. Unto which it was answered, that the parties having acquiesced in the jurisdiction, and entered upon the merits, and actually settled a case for the opinion of the Court, they were not at liberty now to make the objection.-But by the Court. The borough sessions had no jurisdiction to make this order of confirmation, and, therefore, their opinion and their order are both nugatory. The appeal ought to have been to the quarter sessions of the county. As no such appeal has ever been made, the original order stands good, as unappealed from. And, accordingly, the original order was confirmed. But by charter the magistrates of a borough may have jurisdiction. Where such place Rex v. The Justices of the Borough of Carmarthen, and County of the same Borough, 4 B. & A. 291. Two justices of the borough of Carmarthen, on 23rd May, 1820, removed a pauper from St. Peter, in that borough, to New Church, in the county of Carmarthen. New Church appealed, and in their notice of appeal, stated their intention of appealing to the next quarter sessions of the borough of Carmarthen. At the next sessions (which, it quarter sessions: appeared, were the general, and not the quarter sessions) for the borough, held only general sessions twice a year, and not On held on the 21st September last, the parties accordingly attended, and applied for leave to lodge the appeal; but the magistrates refused the application. A rule nisi was obtained for a mandamus. It appeared, from the affidavits, that the borough of Carmarthen was a county of itself, and that, by the charter, there were annually elected six peers of the borough; who, with the mayor and recorder, were magistrates of the borough, and had the power, twice in a year, to hold a court of view of frank-pledge, and to summon the sessions of the peace within the borough, and to hold the sessions of the peace there, and to do all things relating to the sessions of the peace, according to the custom of England; and that, in the said court, they had full power to hear, execute, and determine upon all articles, misprisions, trespasses, and offences, within the borough, which, according to law, belong to the court of view of frank-pledge, or to the office of justices of the peace in their quarter sessions, or otherwise to execute and determine. It also appeared, that the parish of St. Peter was co-extensive with the borough; but that three out of the eight magistrates did not reside in the parish. behalf of the removing parish, it was argued, that there is nothing in the charter of the borough, enabling the magistrate to do acts relating to the poor laws, at their general sessions. Lord Hale lays it down, that a general sessions is perfectly distinct from a quarter sessions. By 13 & 14 Car. II. c. 12, s. 2, the appeal was given to the quarter sessions, against orders of removal. But by 8 & 9 W. III. c. 30, s. 6, the phrase was altered to "general or quarter sessions." These two acts are, however, in pari materiâ, and should receive a similar construction. Rex v. The Justices of London. Here, too, there are only three justices who can sit to determine this appeal; for, by 16 Geo. II. c. 18, all the rest are disqualified. And, by 17 Geo. II. c. 38, it was provided, that in limited jurisdictions, where there are not four magistrates, the appeal must be to the county sessions.-Abbott, C. J., said, I am of opinion that the true construction of the 8 & 9 W. III. c. 30, is, that if there be an appeal to the sessions of a town which is a county of itself, where, by charter only, general sessions are held, it must be made to the general sessions. Here, the magistrates are empowered to hear and determine upon all articles within the borough, which, according to law, belong to the office of justices of the peace in their quarter sessions, or otherwise, to determine. Now this is a very large expression, and comprehends, as it seems to me, a power to decide upon orders of removal. As to the other objection, it appears, that there are three magistrates, at least, qualified to act; and a sessions of the peace may, it is known, be held before two magistrates. The act of parliament, to which a reference has been made, only applies to corporations or franchises, where there are not more than four justices altogether; and, besides, it does not apply to appeals against orders of removal. Upon the whole, therefore, I am of opinion, that this rule ought to be made absolute. [See Rex v. Essex, 1 B. § A. 210, post, 264, and ante, 27.] 2. To what Sessions the Appeal shall be, as to Time. (a) Rex v. Norton, 2 Stra. 831. Exception was taken to an order of sessions, because the justices' order was dated June 21st, and the sessions' order was not till Michaelmas sessions. To this it was answered, that the appeal is to be to the next sessions after the parties find themselves aggrieved, which is not till the removal; and for aught that appears, Michaelmas sessions might be the next sessions after the aggrievance. And so held in Milbrooke v. St. John's, in Southampton, M., 1 Geo. I. To which the Court agreed, and the sessions' order was confirmed. Rex v. the Justices of Devonshire, Cald. 32; 2 Bott, 961. A mandamus had been moved for to hear an appeal to an order of removal: the sessions had refused to enter into it, as one sessions had intervened since the removal. The order of removal was dated October 21st, 1776; in November, the pauper was removed; some time afterwards it was agreed between the two parishes, that the question should be decided by an opinion, provided such opinion (a) See division of the subject, ante, 761. Sixthly, Appeal against an order of removal. 1. Who may ap peal, &c. order of removal peace for such 2. To what sesshall be, as to sions the appcal time. to be the next sessions after the removal. Parties not ag grieved till after the removal. The time limited for appealing against an order of removal is not suspended by the matter being re ferred to arbitration, if the award is not final. Sixthly, Appeal against an order of removal. 2. To what sessions, &c. By nert sessions possible sessions, was given before the 14th day of January, the sessions beginning on the 15th. It was also agreed, that no other instructions should be given to the counsel than the examination of the pauper, which was, That he was born in Witheridge, and about the age of seven years was bound to Richard Elworthy, of Witheridge, with whom he lived till twenty-one, and then made an agreement with his master to give him one guinea to discharge him from his apprenticeship. Elworthy gave him a discharge under his own hand : after different services he gained a settlement, by hiring and service, under Robert Salter, in Paddington, if he was so far discharged as to be capable of gaining a settlement by hiring and service. On the 10th of January, the opinion was given; and was, "That if the indenture of apprenticeship remained in the master's hands uncancelled, the apprenticeship still continued, and the agreement was no dissolution thereof, but only a licence to the apprentice to serve where he pleased." On this day, the officers of Witheridge told the officers of Paddington, that, as the opinion was not decisive, they must inquire of the master what had become of the indenture. At the sessions, on the 15th, no appeal was entered. At Easter sessions following, Paddington appealed, but the justices refused to enter into it. A mandamus was moved for, on the ground that, under the agreement, the opinion in favour of Paddington was conclusive, and that Paddington had appealed, in consequence of objections raised to this decision subsequent to the Epiphany Sessions, and therefore, the statutable limitation of appeal to the next sessions ought, during the time the parties were under the terms of compromise, to be suspended the Court being satisfied of the appeal having been prevented, in consequence of the objection not having been raised previous to the Epiphany Sessions:-By Lord Mansfield, C. J. As both parties had agreed that this question should be submitted to counsel, and that his opinion should conclude, though the Court does not quite agree with the counsel in point of law, they would not, had the opinion been positive, have granted the mandamus. Upon the point of law, I am of opinion, that if the indenture had not been destroyed, but remained in the master's hands, the apprentice would yet have gained a subsequent settlement in Paddington. The master received a guinea of his apprentice, then of full age, for the express purpose of vacating the indenture: Why, could the master, after this, have used the indenture against the apprentice? So far from it, that the apprentice might have brought an action against the master for it. But the opinion of the counsel was hypothetical only, and upon a state of facts at the time not settled and submitted to him by the parties. The case, therefore, might be considered as open to the interposition of the Court. But the merits of the case appearing to be clearly against the party applying, the Court, to prevent further litigation and expence, refused the rule; and, on account of some misconduct with respect to the affidavits laid before the Court, by the prosecutors of the rule, directed that it should be discharged, with costs out of pocket. Mandamus refused. Rex v. the East Riding of Yorkshire, Doug. 192. The order had been is meant the neat made on the 22nd of September, but the pauper was not removed till the 5th of October. Hull, the place to which the pauper had been removed, from Whitby, is sixty miles from Northallerton, where the sessions began on the 6th of October; at which sessions no appeal was entered. At the Ephipany sessions, Hull offered an appeal, but the justices refused to hear it. An appeal might have been entered at the Michaelmas sessions, on the second or third day.The Court said, that by next sessions, the statute Car. II. must have meant the next possible sessions, and that here it was impossible for the appellants to lodge their appeal at the Michaelmas sessions. A mandamus granted. An appeal to the next quarter ses next practicable sions means the sessions, Rex v. Justices of Essex, 1 B. & A. 210. Rule to shew cause why a mandamus should not issue, commanding the justices to receive and hear an appeal against an order of removal from Tolleshunt Knights, to Washbrook. The order was made on Tuesday, the 8th July, 1817, and was served about twelve o'clock on the following Saturday. The distance between the respondent and appellant parishes was twenty-four miles, and the appellant parish was thirty-seven miles from Chelmsford, where the sessions were held on the Tuesday following, and lasted four days: and by the practice of that sessions |