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And the examination must be taken by two justices, and thos the same that sign the order of removal *. The K. v. Wykes Tr. 11 Geo. 2. 2 Strange, 1092.
Therefore in the case of Il’are v. Stanstead, Tr. 12 Wil 3, where an exception was taken to an order because it sai it appears upon examinalion before us, or one of us-T. Court held that the examination ought to be before both, b cause both are to make the judgment of removal. And Gould J. The statute directs, and the practice is to ma 6 complaint to one justice, and then he grants his warrant bring the poor man before two justices, and then those t justices are to examine and remove.' 2 Salk. 488.
So in the K. v. Coln, St. Aldwin's, Mic. 13 Geo. 2, an or of removal was made by two justices of Il'iltshire, on an mination taken before two justices of Middleser, which been transmitted to the justices of Wiltshire, with an affida verifying that it was duly taken; and this was held bad. by Lee Ch. J. It is plain that the Iiltshire justices grounded their adjudication npon the examination transni to them from the Middlesex justices. Now the examinato which they relied, being taken by two justices of another d ty; and the person examived by those justices renaining alive, for aught that appears to the contrary ; it is plain, deposition ought not to have been received as evideng ground their adjudication upon; though it might perhaps been used as concurring evidence. I have often hea.d clared that both justices onght to be present at the rid • examination of the witnesses.'— Page J. I remember a where it was determined that both justices must be pre ? and that it is not sufficient for one justice to examit (matter and transmit it to the other, and that other to sig 6 order without examining into the matter himself.' Bui Sett. Cas. 136.
But whether two justices may remove a pauper on coming insane, by virtue of a former examination relative settlement taken by other justices, is not clearly settled. in the K. v. Eriswell, Tr. 30 Geo. 3, the pauper came i parish of Icklingham, All Saints, in 1767, where he wa ployed as a day-labourer on the navigation. In 1779 1 taken before two justices of the peace for the county, overseers of the parish of Icklingham, for the purpose o examined as to the place of his last legal settlement; in quence of which his examination was taken upon oath those two justices, and signed by the pauper; by which nation it appeared that he had gained a settlement in E by a hiring and service for a year there, and had done
* And the examination of a pauper for the purpose of reino be taken and signed by the same two justices in the presence other, otherwise it is voidable by appeal
. For lbis see p. 377
to gain a settlement elsewhere. No proceedings were had in consequence of this examination until the present order of re. moral: but the paaper, from the time of the examination being taken, continued to reside in Icklingham All Saints for about five years, without becoming chargeable; when he became insane and continued in a state of insanity to the time of his re. moral to Eriswell; which removal was by an order of two justices, but not those by whom the examination was taken. On the part of the respondents this examination was offered in evidence, and objected to oo the part of the appellants; but it was received by the sessions, the hand-writing of the justices who took the same being first proved; and upon that and other evidence the sessions confirmed the order : but they also, siated, thal in their opinion the evidence produced, exclusive of the said examination was not sufficient to warrant that determi. nation.-THE COURT were divided in their opinions respecting this case.- Grose J. and lord Kenyon Ch. J. being of opinion, that the justices u pon this evidence ought not to have removed the pauper.-Buller J. and Ashhurst J. contra. Thus TIE Coert being divided, no rule could be made, and the orders con. sequently stand confirmed. 3 Term Rep. 707. * But it has been since decided that an er parte examination in writing of a pauper, taken on oath before two magistrates, for the purpose of removing him to the place of his settlement, is not admissible in evidence, upon an appeal against an order of remoral, on the ground of the pauper's having abscondel between the notice of appeal and the trial of it before the quarter sessions; although the respondents had used due dili. gence, but without effect to procure the attendance of the pau. per as a witness, he not having been heard of from the time of his absconding. The K. v. Newnham Courtney, Ea. Tr. 41 Geo. 3. 1 Easl's Rep. 373.
And East in a note in this case adverting to the K. v. Eris. well, observes that the two judges who in that case were of opinion that such an ex parte examination ought to have been received, grounded that opinion upon the presumption that the pauper was dead, or what was admitted to be equivalent, in. cane, 1 East's Rep. 375.
But Mr. East seems to have been mistaken in this point, for it has been again decided that the ex parte examination of a spauper touching his settlement cannot be received in evidence of such settlement, although he be dead. The K. v. Alerguilly, Blic. Ter. 42 Geo. 3. 2 East's Rep. 63.
And in the K. v. Ferry Frystone otherwise Ferrybridge, Mic. Ter. 42 Geo. 3. Lord Kenijon Ch. J. said that the point upon which the court were divided in opinion in the K. v. Eris. well has been since considered to be so clear against the adinissibility of the evidence, either as to the hearsay of the pauper or his examination in writing, that it was abandoned at the bar in the B.v. Newnham Courtney without argument.
And although it may be said that there was no evidence ther that the pauper, whose examination had been "admitted in er dence, was dead ; yet our opinion against the general doctrin laid down by the two judges who supported the reception the evidence in the former case was pretty broadly hinted and that point may now be considered to be at rest. ? East Rep. 63.
Neither is what the pauper may have heard his parents s relative to their having been relieved by any parish to be 1 ceived in evidence as to his settiement, for it is no evidence all of any such act; the bare fact of a pauper having been ljeved in a parish being no evidence of a settlement there, 1 he may have been relieved as one of the casual poor, the op seers being bound to relieve paupers who are in want of lief, whether they are settled in their parish or elsewhere. '1
K. v. Chadderton, Mic. Ter. 42 Geo. 3. 2 East's Rep. 27. Death-bed de. But the death-bed declarations of paupers respecting th clarations. settlements ought to be admitted in evidence; as are also
they are dead, their general declarations; and if the sessi
However if such declarations refer to a written instru unless previous enquiry shall have been made after it, to en the parties to give parol evidence thereof; they cannot be ceived in evidence. See the K. v. St. Sepulchre, Tr. 25 Geo. 3. 2 Bott, Const's Ed. and Caldecot's Cases 547 p. 191 ante.
And an examination taken, and an order of removal si by two justices separately, and in different counties, is not but only voidable by appeal to the next sessions. The ! Stotfold +, Ea. 32 Geo. 3. 4 Term Rep. 596.
* But the justices are to judge of the weight of such evidence pared with the testimony on the other side ; and draw the p conclusion therefrom. ED.
+ See this case more fall, in p. 378 supra.
And in Munger-hunger v. Warden, Hil. 10 Geo. 1, an ex. ception was taken to an order of justices for the removal of a pauper, that it was said to be made upon due etamination, without saying that the examination was taken upon oath. But the Court held it enough to say the order was made upon due etamination, without saying upon oath, though the statute directs the examination to be upon oath; for when it is said in an order to be upon due examination,' it shall be intended to be upon oath,' according to the statute. 2 Sess. Cas. 40.
So in the X. v. Fisherton Delamore, Hil. 13 Geo. 2, the order was made upon due consideration. And by TUE COURT. As the order is said to be made upon due consideration, that itplies a due examination, and therefore it is well. 2 Sess. Cas. 45.
The justices, in an order of removal, must expressly adjudge The adjudicne the place to which the pauper is sent, to be his last legal settle, tion, ment. Thus in Bury v. Arundel, Ea. 9 Will. 3, the order was, , Whereas complaint hath been made to us, that Jacob Duckin, with his wife and children, came from his place of abode and "Izst legal settlement in Bury to Arundel, we therefore require
you, &c.'-And this was held nought ; for there is no adjudi. cution of the justices which was his last legal settlement, but only a complaint that Bury was, which does not appear, whether true or false. 2 Salk. 479.
So in the K. v. Hackney, Tr. 9 Will. 3, an order removing a woman, stating that it appeared on her oath, that her husa band was last legally settled at Hackney, was quashed; because there was no judgment of the justices concerning the last legal settlement, but only the oath of the woman. 2 Salk. 478.
So in the Q. v. Middleham, Mic. 9 Ann. the exception to the order was, because the justices have set forth, that Middleham was the last legal settlement of the father; therefore they sendt the son there, and it appears he was ten years of age.- BY THE COURT. The order must be quashed, for there is no adjudication that Middleham is the place of the child's last legal settlement: the settlement of the father is not absolutely necessary to the settlement of the son; at that age he might have gained & settlement. Foley, 271.
So in Eglium v. Hartley Wintley, Tr. 12 Ann. an order ad judges that J. S. was settled at B., and therefore the justices removed his widow and children to B.-THE COURT quashed the order; for the wife may get a settlement after the death of her husband. 1 Sess. Cass. 45.
So in the K. v. Westwood, Hil. 4 Geo. 1, exception was taken, that there was no adjudication of the place to which he was removed being his last legal settlement, but only We
order him to be removed to A., as the place of his last legal settlement. And for this fault the order was quashed. 1 Strange, 73.
So in Stallingburgh, Maxhay, Tr. 4 Geo. 1, an order of
removal was quashed, because there was no adjudication; it only said, that. We, on examination, do beliere the same to be "true;' and a man may believe a thing on uncertain evidence. I Sess. Cus. 131.
However, an adjudication of last settlement and last legal selllement is the same thing; because by every new settlement the precedent is discharged. 2 Salk. 473.
But in the K. v. Iarnhill, Tr. 3 & 4 Gco. 2, where the order adjudged that the last legal place of the pauper was at Warnhill, onitting the word settlement - The court held this no adjudi. cation of a settlement; and that the order could not be made good by implication. 2 Sess. Cus. 91.
Also the order must adjudge, that the party removed is likely to become chargeable.---Thus in Suddlecomb v. Burwash, 'Ir. 13 Will. 3, an order was quashed, because it was only said to be complained by the church wardens, that the person rée moved was likely to become chargeable, but not adjudged so by the justices.-For by Holt Ch. J. The justices cannot remove a man unless he be likely to become chargeable. ? Salk. 491.
So in the Q. v. Waltham Mlugna, Ea. 10 Ann. the order adjudged, that the pauper is likely to become chargéable, as we are credibly informed.-By Parker Ch. J. It is the belief of another : this is no adjudication, Cas. Sett. & Rem. 38.
So in the Q. v. St. Mary Oltery, Mic, 12 Ann. two justices send a person from St. Mary Ollery in Devon to the parish of St. Mary in Bristol, adjudging in the order that he was last legally settled there, according to their knowledge.-BY TIIE COURT. They should have said that he was last settled there. Au order of removal is a judgment which must be certain and positive; the pauper might have been settled elsewhere, and the justices not know it. The order was quashed. Cas. of Seit. & Rem. 32.
So an order, stating that a woman and six children had intruded, and would become chargeable if permitted to abide was quashed; for this is uncertain, it may be five or ten years afterwards, Cas. of Selt. & Rem. 39.
So in Tcclby v. Willerton, Hil. 4 Geo. 1, in an order of re. moval, the justices adjudged that a person may become charge. able.---By THE COURT. This is not suficient, for the statute only enables the justices to remove, persons likely to become chargeable ; for a man of the greatest estate may possibly one time or other become chargeable, though it is very unlikely; and is such a person removeable? There is as much difference in this case between may and likely, as between a possibility and a probability. 1 Strunge, 77.
So in the K. v. Minchinhampton, Tr. 3 & 4 Geo. 3, there was an adjudication of the last place of settlement, but no adjudicatiou that the party was likely to become chargeable; and the order was quashed for this defect. 2 Sess, Cas. 93.
So an order, stating that the pauper is likely to become