Page images
PDF
EPUB
[graphic]

order, apparent upon the face of it, in not stating them to

justices of the peace of the county of Wilts ;'AND the Cou were clearly of opinion that the objection was fatal : it ou expressly to appear that the justices had jurisdiction to make order; and therefore there having been two counties mentio before, they ought to have stated of which county they justices ; But Lord Kenyon, Ch. J. added his regret that objection had been taken, as the decision would conclude thing, for the Court would direct a special entry to be mad order to denote that the orders were quashed for want of fa and that it was to be lamented that the stat. 5 Geo. 2. c. which was intended to give the justices in sessions a powe amending orders of removal, which were desective in poin form, had, by the construction which had been put upot been rendered a dead letter, as all defects of this sort had

considered to be matters of substance. 3 East's Rep. 66. Returning af By 13 & 14 Car. 2. c. 2. s. 3, ' A pauper returning of ter removal. own accord to the parish from whence he was removed,

be punished as a vagabond. And by 17 Geo. 2. c. 5. offenders shall be deemed idle and disorderly persons ; conviction before one justice, on view, or by confession the oath of one witness, may be committed to the hou correction for one month *.'

But these statutes only affect those persons who returi state of vagrancy... For in the K. v. Fillongley, Mic. 29 3. the pauper was removed from the parish of Fillong! the hamlet of Kinualsey, and on the same day on whic was delivered with the said order of removal, he returoed to a tenement in Fillongley, of the yearly value of ten pd and upwards, which he had before rented and resided of sume years, but without making any new agreement wit landlord: after residing thereon about three quarters of a he was again removed to Fillonyley. An appeal a tered against the first order, but not prosecuted. The were of opinion, that the pauper had a right to return, fo an order of removal only prevents a return in a state of va cy. 2 Term Rep. 709.

And tbe warraut committing a pauper who returns aft order of removal, must be on the stat. 17 Geo. 2. c. 5, and pursue the words of the act.—Thus in Baldwin v. Blackmor 31 Geo.2, this was the case reserved at the assizes in an for an assault upon, and false imprisonment of the plai wife. The case was as follows: The plaintiffs, Baldzi his wife, were removed by order of two justices, from Na to Bank-newton: which order was not appealed from wards, they (both of them) returned to Marsden without! ing any certificate. Of this, complaiut being made by the soer in writing, and upon oath, to the defendant, who

See these clauses more full, in p. 337'supra.

justice of peace for the county, he issued his warrant to bring the two paupers before him : who being accordingly brought, sad the facts fully proved, upon oath, he committed both of them to the house of correction, 'until they should be discharged by due course of law. The questions were, 1st, - Whether

there ought to have been a previous conviction of vagrancy? 62dly, Whether the wife could be convicted of vagrancy, or be

liable to be sent to the house of correction for returning with. out a certificate, as she only accompanied and resided with her husband?'— By lord Mansfield, who delivered the resolu. tion of the Court. It is manisest that the justice did not act intentionally wrong; and it is plain that the jury were of that opinion, as appears by their giving only one shilling da, mages. The Court would gladly therefore have leaned towards excusing this gentleman from suffering for what he had honestly and without any bad intention done, if they could have found him justifiable by any legal excuse. But there is one fatal ob. jection to his proceeding which we cannot get over, ani Thich 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 does not appear upon which of the two the justice proceeded. These tuo acts are 13 & 14 Car. 2. c. 12, (a law made before certi. ficates under the late acts existed), and 17 Geo. 2, c. 5, (which Telates to persons returning without bringing such a certificate). Now this warrant is not within this former act of 13 & 14 Car. 2, nor is the case itself within it. These persons did not go to any parish carrying with them a certificate of their being in. habitants of their proper parish ; nor is the commitinent mad;

to the house of correction, there to be punished as a vagabond; nor to a public workhouse, there to be employed in work and labour ; as that statute directs ; so that the warrant is not at all agreeable to the directions of that act, which speciles the particular manner of sending the offender to the house of correction, or to a public work house : for it is only,

to remain till discharged by due course of law. Neither can this warrant be good upon the latter act of 17 Geo. 2. c. 5, because, though this is indeed a commitment to the house of correction (which the latter act directs), yet it is to remain there till discharged by due course of law; whereas, by this act, the power given to the justice is, to commit such offenders to the house of correction, there to be kept to hard labour for any

time not exceeding one month. But this warrant is quite general ; it is an indefinite commitment; not for a precise li. mited time,' as this act expressly directs and requires. Therefore the warrant of commitment is totally illegal, and consequently the plaintiff is intitled to the damages that he recovered. Burrow's Rep. 595.

And a pauper who returns after an order of removal, cannot

[graphic]
[graphic]

8. 8.

And by 9 Geo. 1. c. 7, 'no appeal from any order of Notice to be

moval shall be proceeded upon unless reasonable NOTICE givenof appeal, given by the church wardens or overseers of the parish or pl

who shall make such appeal, unto the church wardens or of 6 seers of the parish or place from which the poor persons

be removed; the reasonableness of which notice shall be 6 termined by the quarter sessions to which the appeal is ma (and if it shall appear to them that reasonable time of po

was not given, then they shall adjourn the said appeal to next quarter sessions, and then and there hear and deteri

(the same.' Sessions power And by 5 Geo. 2. c. 19, on all appeals to the sess to amend de against the judgments or orders of any justices of peace fects of form. 6 sessions shall cause any defect of forin that shall be foun

6 any such judgments or orders, lo be rectified and amet (without any cost to the parties concerned ; and after amendment shall proceed to hear, examine, and consider (truth and merits of all matters concerning such judgme

orders; and examine proofs relating thereto, and make determinations as if there had not been any defect or wa form.'

But the sessions' cannot amend an order in matter of stance. --Thus in the case of Great Bedxin v. Wilcot, 14 & 15 Geo. 2, on an order of removal of a certificate son there was no complaint of the church wardens or ofers nor any adjudication that the certificate person was act become chargeable. On appeal, the sessions in pursuan the above act, amended the orders in these particulars, cons ing them as matters of form only.-But by Lee Ch. J. act directs that the sessions shall amend defects in form, afterwards proceed on the merits : this means defects or takes appearing upon the face of the order, mere defed want of form. But some of tiese matters here amended to be merits : as the adding, upon complaint of the over of the parish from whence the paupers were removed

without such complaint the justices have no jurisdic Then what can be more of the inerits than the certificate having become actually chargeable? for unless he is so not removeable. Now the two justices have not adjudged The other judges concurred, and Wright added, that the ses cannot amend any thing which requires examination. Bur Sett. Cas. 163.

But it seems that the crror of inserting the name of parish instead of another may be amended at sessions, if pears clearly to have arisen from the mistake of the clerk in the K, v. Harrow on the Hill, an order of removal fro parish of Luggershall to the parish, of Harroto, upon at judication that the settlement is in Luggershall, was condi and amended, by striking out Luggershall and inserting row...It was contended, that this was a defect, in subst

[ocr errors]

and therefore not amendable.-The Court, however, seem. ed to be of opinion it was only a defect in form, being a mis. take of the clerk, who filled up the blank order with the name of Luggershall instead of Harrow; but they granted a rule to sbew cause. The order of sessions was afterwards contirmed by consent.' 2 Bott, Const's ed. 828.

Aod by 16 Geo. 2. c. 18, it shall be lawful for every jas. ' tice of peace to execute all acts appertaining to liis office, so far as the same relates to the laws for the relief, maintenance, and settlement of poor persons; potwithstanding any such justice is rated to or chargeable with the taxes, levies, or rates, within any parish, towrship, or place affected by any such act of such justice. Provided that this act shall not autho. rise auy justice to act in the determination of any appeal to the quarter Sessions for any county or riding from any order, matter, or thing, relating to any such parish, township, or place, where such justice is so charged or chargeable.'

Accordingly, in the K. v. Yarpole, Mic. 31 Geo, 3. it was objected against an order of sessions made on an appeal from an order of removal, that three of the justices who voted and joider! in such order of sessious were rated in one of the con. tending parishes; and it was admitted that the order of ses. sions could not be supported. 4 Term Rep. 71.

And by 8 & 9 Will. 3. c. 30, for the more eficctually prevent- Sessions may ing of vexatious removals and appeals, it IS ENACTED, That award costs the justices of the peace of any county or riding, in their gene. "pon appeal Tal or quarter sessions of the peace, upon any appeal before them there to be had conceroing the settlement of any poor person, or upon any proof before them there to be made of notice of any such appeal to have been given by the proper officers, to the church wardens or overseers of any parish orplace (though they did not afterwards prosecute such appeal), shall, at the same quarter sessions, order to the party in whose behalf such appeal shall be determined, or to whom such no. tice did appear to have been given, such cosTS AND CHARGES in the lawr as by the said justices in their discretion shall be thought most reasonable and just, to be paid by the churche wardens, overseers, or any other person against whom such appeal shall be determined, or by the person that did give such Totice; and if the person ordered to pay such costs shall live oat of the jurisdiction of the said court, any justice where such person shall inhabit, shall, upon request to nim made, and a true copy of the order, for the payment of such costs produced, and proved by some credible witnesses upon oati, by warrant under his hand and seal, cause the money mentioned in that order to be levied by distress and sale of the goods of the person that is ordered to pay the same; and if no such distress can be had, he shall commit such person to the common gaol for twenty days. $. 3.

The allowance of these costs is wholly in the discretion of the seasions ; for in the K. v. the justices of Nottingham, 5 Geo. I, YOL, IV.

Dd

[graphic]
[graphic]

a mandamus was directed to the justices to give costs to th party in whose favour the appeal had been determined. Bu upon the return, the Court held it reasonable for them to har the power of judging whether costs should be allowed or no and quashed the writ of mandamus. 2. Bott, Const's e S67.

And the sessions cannot order costs on a mere adjournme of an appeal. --Thus in the K. v. Stansfield, Ea. 16 Gro. 2,1 sessions adjourned the appeal to the next quarter Session and ordered four guineas costs to the appellants : which ord was quashed as to the costs, for the sessions cannot give cos on a mere adjournment of the appeal without hearing it. Bu

row's Sett. Cas. 205. Maintenance to Also by 9 Geo. 1. c. 7. s. 9. 'if the sessions, upon an app be allowed. before them concerning the settlement of any poor perse

6 shall determine in favour of the appellant, that such poor?

son was unduly remored, then the same quarter sessions s 6 award to such appellant so much money as shall app 6 to have been reasonably paid by the parish or place on wh

behalf such appeal was inade, for the relief of such p person, between the time of such undue removal and the termination of such appeal ; the said money so awarded to recovered in the same manner as costs and charges upon appeal according to the statute 8 & 9 IVill. 3.'

And the court will grant a mandamus to the sessions to a! these charges; for in St. Mary's Nollinghun v. Kirkling Ea. 3 Geo. 3, it was moved for a mandamus to be directe the justices of peace of the town and county of Nottingh commanding them to allow the parish of Kirkling on the pense and charges treir officers had been put to, in keepir poor person from the time of his removal to the paris Ki klington till the time that the order of removal was charged by the sessions, upon the appeal of the parish of K lington from it.-BY THE COURT.

This is what is ord ny the statute 9 Geo. 1. c. 7. 8. 9, and has been allowed ig case of the K. v. the Inhabitants of Boston.--. mandamus granted. 2 Sess. Cas. 67.

But the sessions cannot direct the costs of maintaining pauper to attend the event of another supposed appeal;f the K. v. Great Chart, Mic. 16 Geo. 2, an order of ses quashing an insufficient order of justices for the remova! pauper from the parish of Great Chart, to the parish of nington, concluded thus : It is further ordered by this that the costs of maintenance of the said SM, since the of the removal to the said parish of Kennington, shall the event of the cause; in case the parish of Great Chart think proper by another order to remove the said S M saul parish of Kennington, and the inhabitants of Kenn appeal to this court from the same.-BY THE COURT. that part of the order which directs the costs of maintainin

« PreviousContinue »