to pay the sum of
to O. P. upon demand, which said
order of removal has since been carried into execution, and the said
sum duly demanded of and from N. O., one of the overseers of the
poor of the parish of
aforesaid, by him the said O. P.
on the
day of
last, but which was then refused,
and has been and still is neglected to be paid, and that no notice of
appeal has been given against the said order within three days from
the time of making such demand as aforesaid, nor at any time since.
I do therefore hereby require you to levy the money mentioned in
the said order, by distress and sale of the goods and chattels of
the said N. O., the person refusing or neglecting payment of the
same, and also the further sum of
[this sum not to ex-

and

ceed forty shillings, according to the 35 G. 3. c. 101. § 2.] being
the costs attending the same. And if within the space of four days
next after such distress by you taken, the said respective sums of
shall not be paid, that then you do sell the said
goods and chattels so by you distrained, and out of the money aris-
ing by such sale, that you detain the said respective sums, rendering
to the said N. O. the overplus on demand. Given under my hand
and seal the
in the year of our Lord one

day of

thousand eight hundred and

removal was

gust, 1814, and an order of suspension indorsed thereon, in

of

consequence
the sickness of

the pauper ;
and a copy of
such order and
indorsement
was, in 1814,
served upon the
appellants, but
the original
order not pro-
duced at the
time of serving
such copy;

Rex v. The Inhab. of Alnwick, M. 2 G. 4. 5 B. & A. 184. Two An order of justices, by their order, dated the 6th August, 1814, removed Mar- dated 1st Augaret Walker, a pauper, from the parish of Alnwick in Northumberland, to the parish or parochial chapelry of Haydon, in the same county. On an appeal against this order at the Mich. sessions in 1820, it was discharged, subject, &c. Case:-The pauper, at the time the above order, dated 6th August, 1814, was made, was extremely ill, and in such a state of health that she could not be removed without danger; the execution of the order was, therefore, suspended by an indorsement thereon in the usual form. On or about the 6th September, 1814, a copy of the said order of removal and indorsement was delivered to and served upon one of the overseers of the poor of Haydon, by a person sent and authorized by one of the overseers of the poor of Alnwick, such person not then having the order with him; and on the 4th October, 1815, another part of the original order of removal and indorsement was delivered to and served upon one of the overseers of the poor of Haydon by the overseers of the poor of Alnwick. This lastmentioned document, so served on the 4th October, 1815, had not been executed by the removing justices on the 6th August, 1814, but was executed by them in September, 1815. It however bore date the 6th August, 1814. The order originally executed was not at any time shewn to any of the overseers of Haydon. The suspension of the execution of the said order, on account of the justices, but sickness of the pauper, was taken off in August, 1819, and a fur- bearing date in ther order was then indorsed by the justices on the order of re- August, 1814, moval for the payment, by the overseers of Haydon, to the over- was served seers of Alnwick, of the sum of 1617. 17s. 5d., being the charges proved upon oath to have been incurred by the suspension of the pauper was not

and, subse

quently, in 1815, another part of the order

and indorsement executed by the same

lants. The

upon the appel.

removed till

1819, when an appeal was duly entered: Held, that the services

of the original

order of re.

moval in 1814

and 1815 were both defective,

and that the appeal was made

in time, notwithstanding

49 G. 3. c. 124. $ 2.

Where by

charter the magistrates of a borough, which was a county of

twice a year,

order of removal. On the 5th of September, 1820, the pauper was duly removed from Alnwick to Haydon, and an appeal against

the order of removal was entered at the Mich. sessions, 1820. When the case was called on, and the facts above stated had been proved, it was contended, on the part of the respondents, that the appellants could not be heard, as they had omitted to appeal against the order of removal within the time allowed by law: the 49 G. 3. c. 124. § 2. enacting, that when the execution of any order of removal shall be suspended, the time of appealing against such order shall be computed according to the rules which govern other like causes from the time of serving such order, and not from the time of making such removal under and by virtue of the same. The court, however, permitted the case to proceed, and the appeal was allowed. After argument; ABBOTT C.J. The objection made here to the judgment of the court of quarter sessions, is, that they have allowed this appeal, when in point of law the appellants were not entitled to it, not having appealed within the time allowed by law. That question depends entirely upon the validity of the service of the order. Now, that service, in order to be valid, must be either by delivery of the order itself, or by leaving a copy of the order, and at the same time producing the original. It is admitted, that the service in 1814 was defective; but then in 1815 there was a second service. Now, if that was the service of a copy, it was bad, for the same reason as vitiated the previous service. It is, however, contended, that this was the service of a new original order. But if we were to hold that to be so, we should, as it seems to me, give to it an effect 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.

Where Sessions held only twice a Pear in a Borough. [See 4 Burn, 653.]

Rex v. The Inhab. of the Borough of Carmarthen, and County of the same Borough, H. 1 & 2 G. 4. 4 B. & A. 291. Two justices of the borough of Carmarthen, on the 23d May, 1820, by their order, removed a pauper from the parish of St. Peter, in that itself, held only borough, to the parish of New Church, in the county of Cargeneral sessions marthen. Against this order, the parish of New Church appealed, and in their notice of appeal stated their intention of appealing to and not quarter the next quarter sessions of the borough of Carmarthen. At the sessions: Held, that an appeal next sessions (which, it appeared were the general and not the against an order quarter sessions) for the borough, held on the 21st September last, of removal the parties accordingly attended, and applied for leave to lodge might be made the appeal; but the magistrates refused the application. Taunton, in last Mich. term, obtained a rule nisi for a mandamus to the magistrates to hear the appeal. It appeared from the affisuch borough. davits, that the borough of Carmarthen was a county of itself,

to the next ge

neral sessions of

the peace for

and that by the charter there were annually elected therein six persons, called the 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 and execute all things relating to the sessions of the peace, according to the custom of England; and that in the said court of view of frank-pledge and sessions they had full power and authority 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. On behalf of the removing parish it was argued, that there is nothing in the charter of the borough enabling the magistrates 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 the 13 & 14 Car. 2. c. 12. § 2. the appeal was given to the quarter sessions against orders of removal. But by 8 & 9 W. 3. c. 30. § 6., the phrase was altered to "general or quarter sessions." These two acts are, however, in pari materia, and should receive a similar construction. Rex v. The Justices of London. (4 Burn, 104.) Here, too, there are only three justices who can sit to determine this appeal. For, by 16 G. 2. c. 18. all the rest are disqualified. And by 17 G. 2. 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. I am of opinion, that the true construction of the 8 & 9 W. 3. 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. R. A.

Removal

Entering of Appeal when Drder executed
and suspended,

Rex v. The Justices of Norfolk, H. 2 & 3 G. 4. 5 B. & A. 484. A rule nisi having been obtained in last M. T. for a mandamus to the defendants, commanding them to enter continuances, and hear the appeal of the churchwardens and overseers of the parish of

Rex v. Just. of

Carmarthen.
See Rex v. The

Just. of Essex,

ante, 430.

Where an order of removal has been executed,

and by consent

of the removing

Little Hautboys with Lammas, in Norfolk, against an order of two
magistrates for removing Hannah, the wife of Edward George,
(then a prisoner in the house of correction at Aylsham in that
county, convicted of larceny,) and her family from the parish of
Repps with Bastwick to Little Hautboys with Lammas. It ap-
peared that the removal had taken place on the 22d of August last,
and that on the 5th of September following, notice of appeal was
given. On the 10th of October, a supersedeas, under the hands
and seals of the removing magistrates, was served on the officers
of the appellant parish, stating, that doubts had been entertained
whether the order could be supported by legal evidence, and re-
quiring them to deliver up the duplicate order to be cancelled,
and also requiring the other party to take back the pauper. It
appeared, that this was done at the instance of the respondents,
the order of removal having been founded on the examination of
Edward George, taken under 59 G. 3. c. 12. § 28., (a) and that, he
being a prisoner convicted and under sentence for larceny, his
examination was not evidence, he himself not being an admissible
witness until the expiration of his sentence. It did not appear on
the affidavits, whether the costs of maintenance between the 22d
of August and the 10th of October, had been paid or tendered by
the respondents. On the 17th of October, application was made
to the sessions for leave to enter the appeal, which was refused,
the court being of opinion, that the order was completely at an
end. On shewing cause against the rule, it was contended, on the
authority of Rex v. Diddlebury, (4 Burn, 665.) that even after the
execution of an order of removal, the justices may, with the con-
sent of the respondents, supersede it, and the consent of the ap-
pellants is not necessary. Contra. The case of Pancras v. Rum-
bold (2 Bott. 631.) was relied upon. - BAYLEY J. This is a very
different case from Pancras v. Rumbold, which is only an autho-
rity to shew that the justices having been surprized into making
an order, may, of their own authority, and without the consent of
the removing parish, supersede it before execution, but not after.
But in this case there is the consent of the removing parish. The
language of Lord ELLENBOROUGH, in Rex v. Diddlebury, puts it
upon that very ground, for he says, "there are two ways of get-
ting rid of an order, one by consent of the parish in whose favour
it is made to abandon it, the other by appeal;" and he adds after-
wards, "what objection can there be, as Lord MANSFIELD ob-
served, in the case of Rex v. Llanrhydd, (b) to a party's abandoning
a judgment intended for his own benefit?" These observations
shew that the consent of the removing parish alone is requisite.
I think, that in cases like this, the sessions may exercise a discre-
tion, and enter the appeal or not, so as best to answer the pur-
poses of justice. If the parties removing do not chuse to pay the
expenses of maintenance incurred previously to the supersedeas,
they may then enter the appeal, for the purpose of compelling
them so to do. If they are willing to do it, the sessions may re-
fuse to enter the appeal. Here the only object of entering it
would be, either to obtain a decision from the sessions, in the ab-
sence of a material witness, or to respite the appeal from time to
time. In the latter case there would be an useless expense entailed
upon the parties. As soon as George is discharged from prison, a
new order may be made; and it is better for the appellants that it

should be so, for they will not be compelled to keep the family in Rexv. Justices the mean time. I think, therefore, that it was entirely in the dis- of Norfolk. cretion of the sessions to enter the appeal or not, and I do not see any ground why this court should interfere with their decision. This rule must therefore be discharged.-BEST J. The principle upon which this court proceeds in issuing the writ of mandamus is to prevent a failure of justice. Here the very reverse would be the effect. For we should either compel the sessions to hear the case in the absence of the person who can give the most material information, or put the parties to the useless expense of obtaining respites from time to time, till his imprisonment be over.-R. D.

Removal of the Irish and Scotch Poor, not having committed Acts of Wagrancy.

[See stat. 59 G. 3. c. 12. § 33.—5 Burn, 513. et vide post, title "Uagrants."]

By stat. 59 G. 3. c. 12. § 33.,

the wife and
unemancipated
children of a
Scotchman, who
has not acquired
any settlement
must, if charge-
in England,
able, be sent by
pass along

a

not be removed

Rex v. The Inhab. of Leeds, E. 2 G. 4. 4 B. & A. 498. Two justices, by their order, removed Hannah, the wife of Thomas Robinson, and Thomas, Hannah, and Elizabeth, her children, from the township of Leeds to the township of Almondbury, both in the W. R. of the county of York. The sessions, upon appeal, discharged the order, subject, &c. Case:-Thomas Robinson, the husband of Hannah Robinson, was a Scotchman, residing at Leeds with his family, and had not acquired any settlement in England. Not being able to maintain his wife and children, they were obliged to apply for relief to the township of Leeds, and were actually chargeable to that township at the time of granting the with the husorder of removal. Under these circumstances, he consented that band to Scothis wife and children should be removed to Almondbury, which land, and canwas the place of his wife's maiden settlement. It was objected, to the maiden by the counsel for the appellants, that by the stat. 59 G. 3. c. 12. settlement of 33. the wife and family (the children not having gained any the wife. settlement in their own right) could not be sent by an order of -removal to her maiden settlement, but ought to be sent by a pass under that act, along with the husband, to Scotland. The sessions were of that opinion, and accordingly discharged the order of removal. Against the order of sessions the case of Rex v. Eltham (4 Burn, 604.) was cited and relied upon. Аввотт С. Ј. This question arises out of the compulsory power formerly vested -in justices of the peace, of removing a wife from her husband, by consent and it is one, and that not the smallest of the evils attendant on the poor laws, that cases should have arisen under them, in which this court has held, that such a removal, amounting to a temporary divorce, might lawfully be made. It is to be observed, however, that in Rex v. Eltham there was the consent of both husband and wife to the separation. I am very glad that we are relieved by this act of parliament from the necessity of considering those cases. I think it impossible to read the words of the 33d clause, without seeing that the magistrates have now the power, in cases like the present, of sending the husband, together with his wife and family, by a pass to Scotland; and, having this power, I am of opinion that they cannot now remove the wife and family to her maiden settlement, so as to