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by any officers of the parish of Crondall, and that therefore the respondents were not entitled to adduce evidence at the sessions of any such acknowledgment; but the Court of Quarter Sessions overruled the objection, and subsequently confirmed the order of removal, subject to the opinion of the Court of Queen's Bench, whether the relief stated in the examination to have been given by the guardians through the relieving officer of the Hartley Wintney Union was sufficient to warrant the removing justices in considering it relief by the parish of Crondall.
If the Court of Queen's Bench shall be of opinion that the before-mentioned written statement of Martha Croucher of the 27th of February, sworn to by her without a jurat, and not signed by the magistrates, is to be considered an examination, of which a copy should have been sent to the appellants, or if the Court of Queen's Bench shall be of opinion that the relief stated in the examination to have been given by the guardians through the relieving officers of the Hartley Wintney Union was not sufficient to warrant the removing justices in considering it relief by the parish of Crondall, then the order of Sessions and the order of removal are to be quashed; otherwise, the order of Sessions is to be confirmed.
This case was argued before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ., on Saturday, November 14, 1846, by
Wallinger and Pitt Taylor, in support of the order of Sessions.--The 79th section of the Poor Law Amendment Act requires a copy of the examination on which an order of removal is made to be sent to the appellant parish; but here the objection which is made applies to a document which cannot properly be called an examination, and certainly not an examination
upon which the order was made. It was a document drawn up two months before by the attorney for the respondents, and left intentionally incomplete; which distinguishes this case from R. v. Outwell (9 Ad. & Elí
. 836). (a) That case decides that the entire body of evidence taken by the magistrates is to be sent. [COLERIDGE, J.-Yes; examination is nomen collectivum.] But that only applies to legal evidence. It cannot be intended that examinations are to be sent, upon which the magistrates could not act. [Lord DENMAN, C.J.—Is there, then, to be a preliminary inquiry in every case to ascertain upon what examinations the magistrates did act, and upon what they did not act?] No; the distinction is between an examination upon which they had no right to act, and upon which there was no intention of acting, and one upon which they might, but did not act. In the latter case the examination must be sent; in the former, it is submitted that it need not. What possible good can there be in sending an examination upon which no order could be made ? [LORD DENMAN, C. J.-Ăre parties, then, to be at liberty to make some fatal defect in their own documents, and then avoid the consequences by not sending them ?] That is not the case here; the respondents have sent that which was the real examination of Martha Croucher, taken on the second day of the hearing. There were some slight differences between that and the earlier document; but the former contained all that was to be found in the latter. [COLERIDGE, J.--But suppose the pauper before the magistrates should make two completely inconsistent statements, ought not both to be sent ?] Certainly, if the statements were taken down in writing in such a manner that the magistrates
(a) R. v. Outwell. The marginal note is as fol- and it is clear that the Court on that occasion did lows:-"Under s. 79 of stat. 4 & 5 Wm. 4, c. 76, not contemplate any such case as the one in the copies of all the examinations touching the settle
Its attention was directed to the effect of ment of a pauper, taken by the justices upon making omitting altogether to send the examination of a an order of removal, must be sent with the copy of person who gave evidence before the magistrates, the order; and the omission of any one examination on the ground that the magistrate in making the is ground of appeal, although it may not contain the order did not act upon that evidence. evidence upon which the order was in fact founded;"
could act upon
them ; but
pauper to be sworn on one day, and to make a short statement, which was not taken down in writing, and then on a subsequent day to go through a regular examination which was taken down, would it not be enough for the removing parish to send that examination with the order ? Surely the justices have a right to retake an examination, if they think fit, in order to avoid any objections which might arise upon the first. The hearing on the second day was by adjournment; which made the two days as one ; and suppose that justices, after examining a pauper and taking down his statement, should apprehend that for some cause or other a question might arise as to the validity of that examination, and should, ex abundanti cautela, immediately proceed to re-examine that pauper in a manner not subject to the same doubt, could it be necessary to send both? The case has been put of two inconsistent statements; but take the case of two statements identically the
same, but one drawn up formally, the other informally ; must both be sent ? Or again, suppose an examination accidentally destroyed or defaced, and a second perfect examination taken and sent to the appellants, would it, in such a case, be a fatal objection to the order, upon appeal, that all the examinations upon which the order was made had not been sent? This Court has already decided that evidence tendered to the magistrates on the part of the appellants and received by them need not be sent. (Reg. v. Holne, 1 New M. C. 544; 2 New S.C. 364; 15 L. J. M. C. 125.) [Patteson, J.-In R. v. Holne the evidence given by the appellants was not taken down; and it was evidence, not upon which, but notwithstanding which, the order was made. That was the ground of the decision there.] But if there is to be any limitation upon what is to be sent, surely a private draft of an examination drawn up by the attorney will come within it? [COLERIDGE, J.-But the case states that the witness was sworn and then made the statement.] She is not shewn to have been sworn before
any persons competent to administer an oath; it is only stated in the case that she was sworn in the presence of the justices, not before them; and the document itself contains no jurat and no signature by the magistrates. [COLERIDGE, J.-Could she not be indicted for perjury upon that examination?] It is submitted that she could not; and that is one test for ascertaining whether it should be sent to the appellants. Reg. v. Bloxham (6 Q. B. 528; 1 New S. C. 370, and 1 New M. Č. 123), and Reg. v. Norbury (6 Q. B. 534 ; 1 New M. C. 519), shew that an affidavit without a jurat is a nullity. [ERLE, J.Is there any law
law requiring an examination to be taken down in writing, except so far as it is to be inferred from the direction that a copy is to be sent ?] No. [ERLE, J.-Then suppose that, upon the examination of a pauper, gross perjury is committed before a word has been taken down, do you contend that he could not be punished ?] No; he certainly might; but that is not the question. The question is, whether the document, upon the face of it, is such that perjury could be assigned upon it; whether the examination appears to have been taken before a competent tribunal; and this document is fatally defective in these respects. It is not one upon which an order of removal could be obtained. Reg. v. Shipston-on-Stour (6 Q. B. 119; 1 New M. C. 41) shews the extent to which this Court has gone in requiring each examination sent with an order of removal to be perfect in itself. (a) If, therefore, any objection could be taken in such a case, it would be to the mode in which the examination was taken ; and so it would be if the examination were not taken down in writing at all. The magistrates may be in fault in either case; but it surely cannot be contended that, if an examination be not taken down in writing, still a copy ought to be sent to the appellants? If the Court should so hold, the consequence would be that in every case an attempt would be made to prove that some evidence was given before the magistrates which had not been taken down; endless disputes would then arise as to what evidence had and what had not been given in fact ; and the greatest difficulty would be found in drawing the line between that which it was necessary to take down, and that which might be omitted. These consequences will be avoided by laying down the simple rule, which is in accordance with the words of the statute, that only those examinations need be sent upon which the order may have been made. (a) Knapp and Corner, contrà, were not called upon ; but,
(a) In R. v. Shipston-on-Stour it appeared by the the above examination was written on the same copies sent, that the examination of one material sheet of paper with, and preceded by, another witness was alleged in the jurat to be taken and examination, which appeared in all respects to be sworn before, and was signed by, two parties, whose properly taken, and to be signed with the same names only, without any description of their office, names as the second examination ; although both were given. The heading did not shew before whom examinations bore the same date, and the name of the examination was taken :
the pauper mentioned in both was the same. Held, that the order must be quashed; although
LORD DENMAN, C. J. said that some points raised in the argument of the respondent's counsel required consideration.
Cur. adv. vult. Judgment.-February 10. LORD Denman, C. J. delivered the judgment of the Court.—The Court have entertained very great doubts on the subject argued before them; but on minutely looking to the statement in question, we do not think that that important point arises. We are very clearly of opinion that all the examinations on which the order proceeded ought to be transmitted by the respondent to the appellant parish. But it may be needful to consider upon what principle the order made is said to have proceeded upon a particular examination, and in this case we find that the particular examination which is stated to have been made, and in regard to which the mistake existed, was not the examination which was made by the justices and taken by the justices' clerk, but in fact was made by the attorney for the respondent, and, as far as we see, really in that character. Therefore, no question arises, it being quite unimportant to consider, the thing being done without the authority of the justices, what ought to have been or ought not to have been sent. We wish it to be understood that we all agree that whatever is really a part of the proceedings ought to be communicated to the appellant. This removes the appearance of doubt, and leaves the question to be argued on the other side.
Case to be argued on the other points. In Easter Term the case came on again to be argued.
Wallinger and Pitt Taylor, in support of the order of Sessions, as to the second point.—The question is, whether there was not sufficient evidence of relief having been given, so as to bind the parish of Crondall by acknowledgment. At the trial of the appeal, the settlement set up by the examinations failed for want of sufficient evidence, and then this relief was held sufficient. [LORD DENMAN, C. J.-Was not this question decided in Reg. v. Little Marlow ? (suprà, 81).] That case was different ; for there the relief was only shewn to have come from the relieving officer; the board of guardians were not connected with it by the evidence. Here it is established that the relief was given by the board of guardians, and, as we contend, this binds the parish, so far as to be primâ facie an acknowledgment of the settlement in Crondall—a presumption in the present case well supported by the other facts. The case assumes that the relief was given by the guardians. The other side contend that the over
(a) See, as to sending documents, R. v. East Rainton (1 New M. C. 327; 2 New S. C. 23); R. v. Wellington (1 New M. C. 431 ; 2 New S. C. 176).
seers and church wardens are not affected by the order of the guardians ; but the representative character formerly possessed by the churchwardens and overseers is now transferred to the guardians. The binding effect of the acts of the church wardens and overseers was by virtue of their representative character rather than that of agents. (Rex v. Hardwick, 11 East, 578; Rex v. Whitley Lower, 1 M. & S. 636.) Even if the overseers of Crondall had no knowledge of this relief, still the parish would be bound under the provisions of the New Poor Law Act. By sec. 7, the guardians of each parish are to be elected by the ratepayers, owners of property in the parishes, whose names are duly entered; and by sec. 40, no ratepayer is to vote unless rated for one year. The guardians are, therefore, in the light of representatives, even more than overseers who are not elected. The purposes for which they represent will be seen from other sections. By sec. 26, there is power given to unite parishes into unions, for the purposes of relief, and although each parish is liable for its own poor separately, yet, by sec. 54, the ordering, and giving, and directing all relief belongs to the guardians exclusively, except in sudden and urgent emergencies. Relief by overseers of their own accord to a pauper out of the parish would be illegal and would be disallowed (see sec. 89). "The acts of the guardians, therefore, must be subject to the same legal incidents as those of the overseers, and one of these is, that giving relief to a pauper out of the parish is evidence of the pauper being settled in the relieving parish. This consequence does not flow from any direct authority that the overseers have to make admissions, but from the presumption that no one would make such payments unless there was a legal liability,and such acknowledgments are properly called “ a most potent head of evidence of settlement.” (Reg. v. Carnarvonshire, 2 Q. B. 325.) It is true that for some purposes, as for sending notice of chargeability, the guardians are not the representatives of the parish,
but this is dependent upon
the words of the 79th section of the Poor Law Act. (Reg. v. Lambeth, 5 Q. B. 513 ; 1 New Mag. Cas. 582.) The duties of the guardians are twofold: first, to order relief; and next, to apportion the sums payable by the different parishes. The overseers have no power of preventing the relief ordered by the guardians being given, and their knowledge of the fact is immaterial ; a mandamus to compel the overseers to pay the sum apportioned to the parish would be granted. (Reg. v. Todmorden, 1 Q. B. 185.) This same view is supported by the recent enactment, 9 & 10 Vict. c. 66, s. 7, that delivery of the pauper to the union is delivery to the particular parish. Slater v. Hodson (2 New Sess. Cas. 488; suprá, 51) is to a similar effect ; for there the union workhouse was considered a proper place of custody for old parish deeds. (See also Reg. v. St. Martin's, 15 L. J., M. C. 123 ; 1 New Mag. Cas. 554.) But, in the present case, there was evidence that the relief came to the knowledge of the overseers of Crondall, and was ratified by them. The wife of the pauper had lived for some years in Crondall, and after leaving it went there to obtain relief, and was told to apply to the parish in which she lived ; she then obtained relief from that parish, and the amount was repaid by the relieving officer of the Hartley Wintney union. The amount was set down by him in the out-door relief book, and the parish of Crondall charged therewith. The overseers are bound to pass their accounts quarterly; and it is not too much to presume here that the amount was in fact apportioned to and paid by the parish of Crondall. Such payment is not a matter to be proved by the respondents, as it is especially a matter within the knowledge of the appellants. [WIGHTMAN, J.-How does it appear that the repayment was by order of the guardians, in respect of the parish of Crondall!] It is nowhere specifically stated, but it will not be presumed that the charge to the parish of Crondall was made wrongfully. The case of Reg. v. Little Marlow, as has been already noticed, is distinguishable. Rex v. Edwinstowe (8 B. & C. 671) was also cited.
Knapp and Corner, contrà. - The appellants are not precluded from shewing that there was no relief given by the authority of the board of guardians, and if it was only given by the relieving officer, then the parish is not bound. It does not appear that the fact of the pauper being out of the parish of Crondall was brought to the knowledge of the guardians at all, and then the decision of Reg. v. Little Marlow would apply. [ERLE, J.-Is there not a strong presumption that they had knowledge?] When the fact might easily have been stated, presumption is not to be made. There should be distinct evidence of the settlement without presumption, as is shewn here by numerous cases ; and when, at best, the facts can only amount to an admission open to explanation, the rule against presumptions will apply more strongly. (As to this point, Reg. v. Lydeard St. Lawrence, 11 A. & E. 616; Reg. v. The Justices of West Riding, 2 Q. B. 505; Reg. v. Old Stratford, 2 Q. B. 513; Reg. v. Wymondhom, 2 Q. B. 541, were cited.) It does not appear that the guardians of the parish were present at the board, or that the overseers of the parish were informed; but according to Reg. v. Totness (14 L. J., M. C. 148; 1 New Mag. Cas. 383), this is essential. The regular course would have been to have obtained a suspended order of removal, and then an order for his maintenance might have been subsequently made, against which the parish would have had a right of appeal, and there would have been no intervention of the guardians. What is said by Andrews as to the relief being charged in the out-door relief list to the parish of Crondall is no evidence by itself. The parties to whom Martha Croucher spoke upon the subject had no authority, and do not even appear to have been rated inhabitants. She afterwards lived in and was relieved by the parish of Elstead, so that the facts would afford a presumption against any such acknowledgment having been made ; and although at the sessions there was no other evidence of settlement, yet the removal was prima facie good upon the facts stated in the examinations but not proved. A birthsettlement was also proved in a third parish, but then the respondents and the Court fell back upon this acknowledgment. It is, however, further submitted, that even if the board of guardians had knowledge, and their order is considered to be shewn, they had no authority to make admissions so as to bind the parish as to settlement. The argument on the other side is, that the duty to relieve is transferred to the board of guardians; but the principle upon which relief is held to be acknowledgment of settlement is, that it is a payment by the parties having the duty to ascertain the settlement and to remove those who are not settled. If it depended upon the duty to relieve merely, relief in the parish would operate as acknowledgment, which it does not. (Rex v. Chatham, 8 East, 498; Rex v. Coleorton, 1 B. & Ad. 25.) It is also essential that a parish should have the management of its own poor (2 Nolan, 134); but the Poor Law Amendment Act transfers the management from the overseers to the board of guardians. As was said by Lord Eilenborough, in Rex v. Maidstone (12 East, 550), the fact of giving relief shews the opinion of the parish that the pauper is settled with them. That is, because they are interested in the question. Even when given by the overseers, it is not conclusive. (Reg. v. East Winch, 12 A. & E. 697; Reg. v. Bedingham, 13 L. J., M. C. 75) But here it is only the opinion of the relieving officer, or at most, of the board of guardians. But by section 38 of 4 & 5 Wm. 4, c. 76, their duties are limited to relief in the workhouse, and in the union. [LORD DENMAN, C. J.-Would they not be able to give relief in case of a certificate man?] In that case the parish would be