« PreviousContinue »
judgment upon the weight and effect of such evidence, however strong and satisfactory it may be, as being a subject not properly within their cognizance, in the same manner as in the well-known case of a special verdict in trover they would not give any judgment upon a mere finding of a demand and refusal, which is only evidence of a conversion, and not a conversion itself: a distinction which is very far from being merely verbal, and is a complete illustration of the very important distinction, which cannot be too much insist. ed upon between law and fact.
Before dismissing this subject it may be proper to observe, that when the case is reserved by the sessions, not upon the fact of the settlement itself, but in respect of the admission or rejection of evidence, and it is held that the decision upon that point is erroneous, the proper course is not to reverse the order, but to remand the case to the sessions, to be there decided, nnless it appear that the case was founded solely upon inadmissible evidence; in which case, as the exclusion of the evidence would have left no ground for the order that has been occasioned by it, the decision of the inadmissibility of the evidence should induce the reversal of the order. This distinction may be illustrated by referring to the case of admitting one of several witnesses to the same fact, who was incompetent, and which is only a ground for remanding a case, and admitting the parol evidence of rates, without a proper notice to produce them; wbich being the only evidence of the fact of rating, the decision that the evidence was improperly received involves the decision,
that the order founded upon it should be reversed. C.
It is settled as a general rule, that an order of removal, confirmed or nnOf the effect appealed from, is conclusive of the settlement against all the world. Acof an orderun- cording to the expression of Lord Ellenborougii, in Rex v. Corsham, 11 East, appealed from, 388.-" It is in ettect a statutable certificate, that the paper was settled confirmed or at the place to which he is removed: the statute gives him a settlement reversed. there, and the fact stated by the sessions of a prior settlement elsewhere is
Perhaps it might be convenient, if a course were adopted by which a parish, in which a person might happen to be as casual poor without any pretence of settlement there, cond procure the question to be agitated between the two parishes, in one of which the real settlement confesseilly is, and not be subjected to the inconvenience and expense of agitating a question, in which, eventually, it has not any interest. But I am aware that the details of such a measure would require very minute and attentive consideration.
An order of removal, whether executed or not, may, before the sessions to which the appeal is to be made, be abandoned by the mutual consent of the parish obtaining it, and the parish upon which it is made; Llanrhyeld v. Denbigh, B. S. C. 658; Diddlesbury, 12 East, 359. In the latter case the order was annulled by the consent of the justices making it, but that does not appear to have formed an ingredient in the decision, and did not oceur in the former.
The removal of two persons, as husband and wife, is evidence as to the marriage between them, both with respect to themselves and after-born children. It was also held, in Rex v. St. Mary Lambeth, 6 T. R. 615, that the removal of a woman, as the wife of A. B., was conclusive evidence of the legality of the marriage, as to children previously born, and not included in the order, the court holding it to be conclusive not only on the persons removed, but also on all derivative settlements from them. This decision seems rather questionable in principle ; for being a matter of estoppel contrary to the truth of the case, the judgment would seem only to conclude the immediate subject matter of it; viz. the existence of the relation of busband and wife at the time of the order, and not the legitimacy of children bom at an antecedent period. See cases in the preceding part of this section, as to the effect of a removal of the wife, or person reputed as such, without ihe husband.
In Rex v. Chilverscotton, 8 T. R. 178, an order unappealed from was held conclusive, although void upon the face of it, it not appearing that the justices who made it were of the county from which it was made.
It is also agreed that an order quashed upon the merits is conclusive, so as to prevent a second removal from the same parish but that an order quashed for want of form, or other matter callateral to the settlement, as the not being chargeable, is not so. In Osguthorpe o. Deseworth, 2 Str. 1127, being the removal of a certificated person, it appeared that the first order was before he was chargeable, and the second after; and the court held, that the first order having been premature, the consequence was only that the party must be suffered to remain till he did become chargeable, and not to make a premature removal final for ever.
Since the statute 35 Geo. III. parties are often turned round for not being able to prove that the pauper was chargeable.
Whenever an order is set aside upon a special ground not affecting the settlement, it is very desirable that a special entry should be made of the reason, so as not to shut out the justice of the case, or to leave it open to subsequent alteration, as to the ground and reason of the decision. I have not unfrequently, however, known an application for the purpose refused, although I think that, in point of professional fairness, it ought not to be even resisted.
It is established, that an order reversed is not material as affecting a removal from third parishes.
In Honiton v. South Beverton, Comb. 401, it was laid down, that after the reversal of an order, two justices of the county to which the removal was made might remove the pauper back to the removing township, for it was but an execution of the order of sessions; which could not otherwise be done, because it was out of the jurisdiction of the court of sessions. In the subsequent case of Rex v. Milverton, 2 Bott. 712, the sessions having reversed the order, and directed the party to be sent back, it was held that they had only power to affirm or quash, and not to make a new order ; and the latter part of the order was quashed. I apprehend that the case in Comberbach has not been acted upon, and is not law; and that the want of jurisdiction in the sessions would apply, u fortiori, to the acts of justices out of sessions.
[No. III.] 3 William and Mary, c. 11.–An Act for the
better Explanation and supplying the Defects of the former Laws, for the Settlement of the Poor *. WHEREAS one Act of Parliament made in the thirteenth and four- No. III. teenth years of his late Majesty King Charles the Second, inti
3 William 'tuled, An Act for the better Relief of the Poor of this Kingdom, (except • what relates to the corporation therein mentioned, and constituted there and Mary, by) was revived and continued with some alterations, by one other Act,
c. ll. 'made in the first year of the late King James the Second, and have been
found by experience to be good and wholesome laws, but may shortly ex- 13 & 14 Car. 2. pire:”
II. Be it therefore enacted by the King's and Queen's most excellent Ma- 13 & 14 Car. 2. jesties, by and with the advice and consent of the Lords Spiritual and Tem- c.12. & 1Jac.2. poral, and Commons, in this present Parliament assembled, and by authority c. 17. revived. of the same, That the said Àcts, as to what relates to the settlements of the poor, shall be in force from the first day of March one thousand six hundred ninety-one.
lil. - But forasmuch as the said Acts are somewhat defective and doubt- The note of • ful;' For supplying and explaining the same, Be it further provided and settlement enacted by the authority aforesaid, that the forty days continuance of such must be read person in a parish or town, intended by the said Acts to make a settle- in the church, ment, shall be accounted from the publication of a notice in writing, which in the poor's he or she shall deliver, of the house of his or her abode, and the number of
book. his or her family, if he or she have any, to the church warden or overseer of the poor, which said notice in writing the said churchwarden or overseer of the poor is or are hereby required to read, or cause to be read publickly, immediately after divine service in the church or chapel of the said parish or town, on the next Lord's day when there shall be divine service in the same; and the said churchwarden or overseer of the poor is or are hereby required to register, or cause to be registered; the said notice in writing in the book kept for the poor's accounts.
No soldier, IV. Provided always, and be it enacted, That no soldier, seaman, ship- &c. to have wright, or other artificer or workman employed in their Majesties service, setilement beshall have any settlement in any parish, port town, or other town, by deli- fore dismislivery and publication of a notice in writing as aforesaid, unless the same be sion. after the dismission of such person out of their Majesties service. V. And be it further enacted, That if any churchwarden or overseer of the churchiwarden
refusing to As to all matters relating to settlements, see notes to the preceding num- read or regisber, ad finem.
No. III. poor shall refuse or neglect to read or cause to be read, such notice in writ3 William
ing as aforesaid, in such manner, place, and time as aforesaid, he or they for and Mary,
every such offence (upon proof thereof by two credible witnesses upon oath,
before any justice of the peace for the same county, riding, or division, c. 11.
city, or town corporate, where complaint thereof shall be made) shall forfeit the sum of forty shillings to the use of the party grieved, to be levied by distress and sale of the offender or offenders goods, by warrant under the hand and seal of any justice of the peace within the said jurisdictions respectively, to the constable of the parish or town where such offender or offenders dwell, the overplus, if any be, to be returned to the owner or owners; and for want of such sufficient distress, the said justice shall commit him or them to the common gaol of the said county, city, or town corporate, there to remain without bail or mainprize for the space of one month; and if any churchwarden or overseer of the poor shall refuse or neglect to register, or cause to be registered, such notice in writing as aforesaid, he or they so offending, upon the like conviction, shall forfeit the sum of forty shillings to the use of the poor of the parish or town where such offender or offenders dwell, to be levied as aforesaid, the overplus, if any be, to be returned to the owner or owners; and for want of such sufficient distress, then the said justice shall commit such offender or offenders as afore
said, for the time aforesaid. Serving as of
Ví. Provided always, and be it enacted, That if any person, who shall ficer, or paying come to inhabit in any town or parish, shall for himself and on his own acparish duties, à count, execute any publick annual office or charge in the said town or pasettlement.
rish, during one whole year, or shall be charged with and pay his share towards the publick taxes or levies of the said town or parish, then he shall be adjudged and deemed to have a legal settlement in the same, though no such notice in writing be delivered and published, as is hereby before
required. Service for a VII. And it is hereby further enacted, That if any unmarried person, year, of person not having child or children, shall be lawfully hired into any parish or without wife town for one year, such service shall be adjudged and deemed a good setor child, a set- tlement therein, though no such notice in writing be delivered and pub tlement,
lished, as is herein before required. Apprentice- VIII. And it is hereby further enacted, That if any person shall be bound ship a settle- an apprentice by indenture, and inhabit in any town or parish, such binding ment.
and inhabitation shall be adjudged a good settlement, though no such no
tice in writing be delivered and published as aforesaid. Appeal from
IX. Provided always, and be it hereby enacted, That if any person or justices of
persons shall find him, her, or themselves aggrieved by any determination, peace to quar- which any justice or justices of the peace shall make in any of the cases ter-sessions, abovesaid, the said person or persons shall have liberty to appeal to the whose order
next general quarter sessions of the peace, to be held for the said county, shall be final,
riding, or division, city, or town-corporate, who, upon full hearing of the
said appeal, shall have full power finally to determine the same. Churchwarden X. And be it further enacted, That if any person be removed by virtue must receive a of this Act, from one county, riding, city, town corporate, or liberty, to person remove another, by warrant, under the hands and seals of two justices of the peace, ed by warrant the churchwardens or overseers of the poor of the said parish or town, to of two justices which the said person shall be so removed, are hereby required to receive of peace upon the said person, and if he or they shall refuse so to do, he or they so refusing 51. penalty.
or neglecting (upon proof thereof by two credible witnesses upon oath before any justice of the peace of the county, riding, city, or town-corporate, to which the said person shall be so removed) shall forfeit for each offence the sum of five pounds(1), to the use of the poor of the parish or town from which the said person was removed, to be levied by distress and sale of the offender or offenders goods, by warrant under the hand and seal of any justice of the peace of the county, riding, city, or town-corporate, to which such pere son was removed, to the constable of the parish or town where such offen
(1) They are also liable to indictment: R. v. Davis, 1 Bott. 338.
der or offenders dwell; which warrant the said justice is hereby impow- No. III. ered and required to make; the overplus, if any be, to be returned to the
3 William owner or owners; and for want of sufficient distress, then the said justice
and Mary, shall commit the said offender or offenders to the common gaol of the said county, riding, city, or town-corporate, or liberty, there to remain without bail or mainprize for the space of forty days: Provided always, and be it hereby enacted, That all such persons who think themselves aggrieved with Persons agany such judgement of the said two justices may appeal to the next general grieved by quarter sessions of the peace to be held for the county, riding, city, town- such removal corporate, or liberty, from which the said person was so removed.
to sessions. XI. ' And whereas many inconveniences do daily arise in cities, townscorporate, and parishes, where the inhabitants are very numerous, by rea• son of the unlimited power of the churchwardens and overseers of the poor, who do frequently upon frivolous pretences (but chiefly for their
own private ends) give relief to what persons and number they think fit, * and such persons being entered into the collection bill, do become after
that a great charge to the parish, notwithstanding the occasion or pretence • of their receiving collection oftentimes ceases, by which means the rates • for the poor are daily increased, contrary to the true intent of a statute
made in the forty-third year of the reign of her Majesty Queen Elizabeth, 43 Eliz. c. 2. • intituled, An Act for the Relief of the Poor;' For remedying of which, and
A register to preventing the like abuses for the fututre, Be it further enacted, that from be kept of the and after the first day of March, there shall be provided and kept in every admittances of parish (at the charge of the same parish) a book or books, wherein the the poor. names of all such persons who do or may receive collection shall be registered, with the day and year when they were first admitted to have relief, and the occasion which brought them under that necessity: And that Parishioners yearly in Easter week (or as often as it shall be thought convenient) the yearly in Eas., parishioners of every parish shall meet in their vestry or other usual place ter week shall of meeting in the same parish, before whom the said book shall be
make a list of pro
their poor. duced, and all persons receiving collection to be called over, and the reasons of their taking relief examined, and a new list made and entred, of such persons as they shall think fit and allow to receive collection, and that no
allowed to have or receive collection at the charge of the said parish, but by authority under the hand of one justice of peace residing Farther provi
sions relating within such parish, or (if none be there dwelling) in the parts near or next adjoining, or by order of the justices in their respective quarter sessions, hereto, 9 Geo. except in cases of pestilential diseases, plague, or small-pox, for and in respect of such families only as are or shall be therewith infected.
XII. ' And whereas many churchwarılens and overseers of the poor, and other persons intrusted to receive collections for the poor, and other publick monies relating to the churches and parishes whereunto they do belong, do often mispend the said monics, and take the same to their own use, to the great prejudice of such parishes, and the poor, and other inhabitants thereof; and because that many times the judges, when actions • are brought against such churchwardens and overseer, to recover the mo' nies so mispent, taken, or misapplied by the persons aforesaid, refuse to • admit the parishioners to be witnesses in such cases, who are the only per
sons that can make proof thereof:' Wherefore, to prevent all such evil Parishioners, and deceitful practices of church wardens and overseers, and other persons, except almsBe it enacted and declared, that in all actions to be brought in their Majes- men, may be ties Courts of Record at Westminster, or at the assizes, for the recovery of evidence any sum or sums of money so mispent or taken by churchwardens or over. against seers of the poor, the evidence of the parishioners, or any of them, other churchwarthan of such as receive alms or any pension or gift out of such collec- dens, &c. of tions or publick monies of such parish or parishes respectively, whereof the ing the poor's defendant or defendants is or are inhabitant or inhabitants, shall be taken
money. and admitted in all such cases in the courts aforesaid; any custom, rule, order, or usage to the contrary notwithstanding.
[No. IV.] 8 and 9 William III. c. 30.–An Act for sup
plying some Defects in the Laws for the Relief of the Poor 8 and 9 of this Kingdom. William III. FORASMUCH as many poor persons chargeable to the parish, townc. 30.
ship or place, where they live, merely for want of work, would in
any other place where sufficient employment is to be had, maintain 43 Eliz. c. 2.
themselves and families, without being burthensome to any parish, town-
* labour is wanted in many other places, where the increase of manufacPersous com- 'tures would employ more hands; Be it therefore enacted by the King's ing to inhabit
most excellent Majesty, by and with the advice and consent of the Lords in any parish, Spiritual and Temporal, and the Commons, in this present Parliament are to bring
assembled, That if any person or persons whatsoever, that from and after with them a
the first day of May, which shall be in the year of our Lord one thousand certificate under the
six hundred ninety-seven, shall come into any parish or other place there hands of the
to inhabit and reside, shall at the same time procure, bring and deliver to churchward- the churchwardens or overseers of the poor of the parish or place (1) where ens, &c. of the any such person shall come to inhabit, or to any or either of them, a cerparish to which tificate under the hands and seals of the churchwardens and overseers of they belong. the poor of any other parish, township or place (2), or the major part of
them (3), or under the hands and seals of the overseers of the poor of any Such witness other place where there are no churchwardens, to be attested respectively to swear to the by two or more credible witnesses, thereby owning and acknowledging the execution of person or persons mentioned in the said certificate to be an inhabitant or certificates, inhabitants legally settled in that parish, township or place, every such &c.
certificate, having been allowed of and subscribed by two or more of the 3 George II. justices of the peace (4) of the county, city, liberty, borough or town-corc. 19. s. 8.
porate, wherein the parish or place, from whence any such certificate shall
(1) The certificate need not to be directed Margam, 1 T. R. 775: by a sole overserr; to a particular parish, but it is only operative Clifton, i E. 168 (see Notes 13 and 14 Cl. in respect of the parish to which it is first II. c. 12, ante No. 2; 43 Eliz, c. 2, ante No. actually delivered; Lillington, 1 E. 438. Qy. 1), nor by two persons (both churchwardl. if a particular parish must not be in contem- ens) and one sole overseer; St. Margaret's, plation ; Lubbenham, 4 T. R. 251. It is not Leicester, 8 E. 332. Qu, as to the case where conclusive as to the settlement at the time of more than four are appointed; see Clifton, granting it in favour of a third parish; id.: ub. sup.; Wymondham, 6 T. R. 532; and see and the parish to which the certificate is de- Statute 54 Geo. III: c. 107, post. livered may remove to a third parish where (4) The justices may also be the witnesses; the settlement actually is; St. Martin at Oak, Boston, 2 Bott. 613. 16 E. 303.
(5) The effect of the certificate only ex(2) Certificate expressed to be by C. and tends to the persons named in it and their o. of the parish of A. of settlement of S. in children, and not to the grandchildren, whose the said parish, may be shewn to have been parents are not named; Darlington, 4 T. R. granted by officers of the hamlet of S. main- 797; Heath, 5 T. R. 583; Mortlake, 6 E. taining its own poor; Samborn, S T. R. 609. 397: but it extends to all children pressly
(3) A certificate by any number less than named, and their children; Testerton, 5 T. the majority of churchwardens and overseers, R. 258; Batheaston, 8 T. R. 448. Where is not sufficient-as hy two churchwardens the certificate mentioned father, mother, and out of six, and two overseers out of four ; two younger children, and the eldest child, St. Michael's v. Tamworth, B. S. C. 770; who got his own living, was purposely left