justices did, in and by their said order, in pursuance of the provisions of the said act of Parliament, duly direct the guardians of the poor of the said union to give relief to the said E. P., without requiring that she should reside in any workhouse. The writ then stated that the order was duly served on the guardians at their general weekly meeting, on the 24th of August, 1844, and delivered to the presiding chairman, but that the said guardians at their said weekly meeting declined to order any such relief; and that afterwards, on the 31st of the same month, the said E. P. applied to them for relief under the said order, and requested them to give relief to her without requiring that she should reside in any workhouse, but that the said guardians wholly refused and still refuse to comply with the said order. To this writ the guardians returned as follows:- "We the guardians of the poor of the Totnes Union, in the county of Devon, in the writ hereunto annexed mentioned, do most humbly certify and return to our sovereign lady the Queen, &c., that the order in the said writ mentioned, under the hands of T. K. & H. C. M. P. in the said writ mentioned, was and is in the words and figures following; that is to say, Devon, to wit.—To the guardians of the poor of the Totnes Union. Whereas, by an act &c., (4 & 5 Will. 4, c. 76), intituled &c., it is amongst other things enacted, "that, in any union which may be formed under the said act, it shall be lawful for any two of his Majesty's justices of the peace usually acting for the district wherein such union may be situate, at their just and proper discretion, to direct, by order under their hands and seals, that relief shall be given to any adult person who shall, from old age or infirmity of body, be wholly unable to work, without requiring that such person shall reside in any workhouse: : provided always, that one of such justices shall certify in such order, and of his own knowledge, that such person is wholly unable to work as aforesaid; and provided further, that such person shall be lawfully entitled to relief in such union, and shall desire to receive the same out of a workhouse." And whereas E. P., widow, an adult person, of the parish of B. P., in the said county of Devon, 1845. The QUEEN v. Guardians of UNION. 1845. The QUEEN v. TOTNES cometh this day personally before us, T. K. and H. C. M. P., whose hands and seals are hereunto set, two of her Majesty's justices of the peace acting in and for the county of Devon, and usually acting at Guardians of Paington, within the district of the Totnes poor law union in the said county, and complaineth to and informeth us, the said justices, that she the said E. P. is aged seventy-s y-seven years and upwards, and that she is the widow of Peter Pering, labourer, deceased, and, from old age and infirmity of body, she is wholly unable to work; that her place of residence is in the parish of B. P., in the county of Devon, and in the Totnes poor law union, and she is lawfully entitled to relief therefrom; that she has been in the receipt of out-door relief as a pauper of the said parish of B. P. for several years prior and up to or about the month of May last, when the said relief, amounting to 2s. and a loaf per week, was discontinued, as she was informed and believed; and a workhouse order was thereupon directed by the guardians of the said union to be given to her, and the said order was offered to her by a relieving officer of the said union, and she declined to avail herself of the said workhouse order, from a dislike to live in the union house; and the said guardians had refused, and still do refuse, to give, grant, or order her relief out of the said workhouse, and she desired to receive relief out of the said house; that she, the complainant, had been for many weeks past supported by the charitable contributions of the inhabitants in the neighbourhood in which she was living, and she had no means or resources whatever of her own to support herself, and therefore the said complainant prayed for justice in the premises, and that an order may be made on the guardians of the said Totnes poor law union to grant her relief out of a workhouse. And whereas proof hath been this day taken before us, upon oath, in support of the said complaint, and it doth appear to us the said justices that the said E. P. is, from old age, wholly unable to work, and that she hath desired and doth desire to receive relief out of a workhouse, and that the said E. P. is lawfully entitled to relief in such union, and desires to receive the same out of a workhouse; and that you the said guardians of the said Totnes union have refused and continue to refuse to give, order, and grant unto the said E. P. relief out of a workhouse; and whereas proof hath also been made, upon oath, this day before us, that the said E. P. is lawfully entitled to relief in the said union; and I the said T. K., justice of the peace, do hereby certify, of my own knowledge, that the said E. P. is, from old age, wholly unable to work: We, therefore, the said justices, whose hands and seals are hereunto set, in pursuance of the said statute in that case made and provided, do direct, by this our order, you the said guardians of the poor of the said Totnes union forthwith to give relief to the said E. P., without requiring that the said E. P. shall reside in any workhouse. Given under our hands and seals, the 22nd day of August, in the year of our Lord, 1844. THOMAS KITSON (L.S.) “And we the said guardians do further certify, &c. that no summons or warning was issued by the said T. K. and H. C. M. P., or either of them, or by any other justice of the peace, to us the said guardians, or to the churchwardens and overseers of the poor of the parish of B. P. in the said writ mentioned, or to any or either of them, rcquiring us the said guardians, or the said churchwardens and overseers, or any or either of them, to appear before the said T. K. and H. C. M. P., or any other justices, to answer the complaint of the said E. P. in the writ and order mentioned, or to attend the hearing of the complaint in the order mentioned; and that the hearing of the complaint in the order mentioned was had, and the proof and evidence in the order mentioned were taken, and the order was made by the said T. K. and H. C. M. P., without any summons first issued by them, or either of them, or by any other justice of the peace, to us the said guardians, or to the churchwardens and overseers of the said parish of B. P., or to any or either of them, touching or concerning the said complaint of the said E. P.; and that neither we the said guardians, nor the said churchwardens or overseers, or any or either of them, were ever summoned or required by any justice of the peace to attend the hearing of the said, complaint, or to answer the same; nor were we the said guardians, or the said churchwardens and overseers, or any or either of them, present at the making of the said order, or at the taking of the evidence on which the same was made, nor any person on their or our behalf. And we the said guardians further certify, &c. that the said parish of B. P. is a parish duly maintaining its own poor, and having churchwardens 1845. The QUEEN v. Guardians of TOTNES 1845. The QUEEN บ. Guardians of and overseers of the poor, and that for the present year of office, and at the time of the making of the said order, Thomas Tracey and Lawrence Lezand were and still are the churchwardens, and George Ford, John Turpin, and William White the overseers of the poor, respectively and duly appointed, and acting in and for the said parish of B. P. And we the said guardians do further certify, &c. that the said parish of B. P., and the several other parishes forming the said Totnes Union, have always been and are distinct parishes for the purposes of settlement, and do not, nor at any time did raise in common the necessary funds for the relief of the poor of such union, and that each of the said parishes hath always been and is separately chargeable with and liable to defray the expense of its own poor, whether relieved in or out of the workhouse of the said union. And we the said guardians do further certify, &c. that we the said guardians, both before and since the making of the said order by the said T. K. and H. C. M. P., did offer relief to the said E. P. in the workhouse of the said Totnes Union, but such relief was refused by her. The answer" &c. To this return there was a demurrer by Elizabeth Pering, and joinder in demurrer. W. H. Watson (with whom was Greenwood), in support of the demurrer. The order of justices is made under the 27th (a) section of the Poor Law Amendment (a) The 4 & 5 Will. 4, c. 76, s. 27, enacts," that, in any union which may be formed under this act, it shall be lawful for any two of his Majesty's justices of the peace usually acting for the district wherein such union may be situate, at their just and proper discretion, to direct, by order un der their hands and seals, that relief shall be given to any adult person who shall, from age or infirmity of body, be wholly unable to work, without requiring that such person shall reside in any workhouse: provided always, that one of such justices shall certify in such order of his own know Act, which nowhere requires that a summons should issue either to the guardians or the overseers previous to the making the order. As a general rule, where proceedings take place under any statute, whereby a penalty is inflicted, or a burden cast upon any party, a summons or notice is requisite, although the terms of the act may not require it. This case does not come within that rule. The application to the justices, under the 27th section, is an ex parte proceeding, as an application for an order of removal, because the settlement of the pauper is not called in question, and no removal can take place till notice has been given. One of the justices who makes the order is required to state, of his own knowledge, that the person requiring relief is unable to work, and is a proper person to receive relief out of the workhouse. This provision of the Legislature seems to preclude the necessity of issuing a summons and hearing evidence. The 103rd section gives a right of appeal against orders made by justices (a). M. Smith, contrà.-The effect of this order of justices would be to throw a burden on the particular parish, and consequently on the union; therefore, on general principles of law, either the guardians or the overseers should have had an opportunity of shewing cause against the rule. If the order is good on the face of it, this Court will enforce obedience by mandamus, although no person has been heard to resist the order. ledge, that such person is wholly unable to work as aforesaid; and provided further, that such person shall be lawfully entitled to relief in such union, and shall desire to receive the same out of a workhouse." (a) Another question discussed in the argument was, whether the order was properly made on the 1845. The QUEEN v. Guardians of TOTNES UNION. |