CHAPTER II. Examination of the Pauper, &c. By whom taken, 715. The examination, 719. By whom taken.] Before a pauper is removed, he, and such other witnesses as may be necessary to prove the settlement, should be examined before two justices of the peace of the county in which the removing parish is situate. And this examination must now in all cases be taken down in writing; for although it is no longer necessary to send a copy of it to the overseers of the parish to which the pauper is to be removed, together with the notice of chargeability, as was formerly required by stat. 4 & 5 W. 4, c. 76, s. 79, yet as the clerk to the justices who take the examination is required to keep it, and to give a copy of it to the opposite party if required, by stat. 11 & 12 Vict. c. 31, s. 3, such examination must necessarily be in writing. It is not essential to the validity of the order, however, that the pauper himself should be examined (a); although it is the usual practice to do so, if he is likely to give any material testimony. In ordinary cases, this examination must be taken before two justices of the peace, as above mentioned. And therefore, where an order of removal stated, "it appears upon examination before us or one of us :" the court held it bad, for the examination should have been before both justices; and Gould, J., said, that it was the practice to make the complaint to one justice, he then grants his warrant to bring the pauper before two justices, and then the two justices examine and remove him (b). Where the examination was taken before one justice only, and he signed not only his own name, but the name of another justice, to the order of removal: the court, upon application, granted a criminal information against him (c). So, where one justice examined the pauper, and two other justices afterwards made the order of removal, stating that the pauper had been examined before themselves: for this, and for not summoning the pauper before them previously to (a) R. v. Tavistock, 3 D. & R. 427. R. v. Bagworth, Cald. 179. (b) R. v. Stanstead Mount Fitchet, 2 Salk. 488. (c) R. v. Howarth, 2 Bott, 640. their making the order, the court granted a criminal information against these two justices; they said that natural justice required that the party should be summoned and heard before he is removed, for he may have something to allege, some reason to show, against it (d). So, where an order of removal was made by two justices of Wiltshire, upon an examination taken before two justices of Middlesex: the court held it bad on that account; the justices should not have adjudicated on such an examination: the examination should have been taken by the two justices who made the order, and both should have been present at the time (e). But by stat. 49 G. 3, c. 124, s. 4, “whenever it shall happen that any pauper is, by age, illness, or infirmity, unable to be brought up to the petty sessions to be examined as to his or her settlement, it shall be lawful for any one magistrate acting for the district where such pauper shall be, to take the examination of the said pauper, and to report the same to any other magistrate or magistrates acting for the said district, and for the said magistrates upon such report to adjudge the settlement of the said pauper, and make and suspend the order of removal, as fully and effectually to all intents and purposes as if the said pauper had appeared before two magistrates.” Where, in such a case, it was objected that the order of removal ought to have stated specially that the examination had been taken by one magistrate, and reported to another: the court held it to be unnecessary, and confirmed the order (ƒ). In a case previous to this Act, where the pauper was too ill to be brought before the justices, and they made their order upon other evidence, and suspended it on account of the illness of the pauper: the court held that they had authority to do so (g). Summons or warrant to bring up the pauper, &c.] It is seldom necessary to issue either a summons or warrant to bring up the pauper for examination. After relieving him once, the overseers, by refusing to continue the relief unless he attend to be examined as to his settlement, have usually the means of compelling attendance, without either summons or warrant. But if it become necessary to summon him, or any person as a witness, then, upon application of“ any party to such proceedings," any justice may summon such party to appear and give evidence; and if he do not appear at the time and place mentioned in such summons, and if proof upon oath be given of personal service of the summons upon such (d) R. v. Wykes, 2 Str. 1092; Andr. 238. (e) R. v. Coln St. Aldwin's, Burr. 8. C. 136. (f) R. v. South Lynn, All Saints, 4 M. & S. 354. (g) R. v. Everdon, 9 East, 101. person, and that the reasonable expenses of attendance were paid or tendered to such person, such justice by his warrant may order him to be brought before him or any justices before whom such proceedings are to be had; and if any person coming or brought before any such justices in any such proceedings refuse to give evidence thereon, such justices may commit him to the house of correction for any time not exceeding fourteen days, or until he shall submit himself to be examined, and in case of such submission the order of any such justice shall be a sufficient warrant for his discharge (h). The following may be the forms. And first, as to the form of the summons: Berkshire: To of in the county aforesaid, Forasmuch as complaint hath been made unto us, C. D. and E. F., esquires, two of her Majesty's justices of the peace in and for the county aforesaid (one of us being of the quorum), by the churchwardens and overseers of the poor of the parish of· in the said county, that [you, A. B., have, or that A. B. hath] come to inhabit in the said parish, not having gained any settlement therein, and that [you are, or he is] actually chargeable to the said parish: these are therefore to require you to appear on at the hour of at -, before us the said justices, or before such other two justices as may then be there present, to be examined concerning the place of [your, or the said A. B.'s] last legal settlement. Herein fail you not. Given under our hands and seals this day of in the year of our Lord Forasmuch as complaint hath been made unto us, C. D. and E. F., esquires, two of her Majesty's justices of the peace in and for the county aforesaid (one of us being of the quorum), by the churchwardens and overseers of the poor of the parish of · in the said county, that A. B. hath come to inhabit in the said parish, not having gained any settlement therein, and that he is actually chargeable to the said parish: and whereas [we or J. P. esquire, one of her Majesty's justices of the peace in and for the said county] on at, at the request of the said churchwardens and overseers, did duly issue [our or his] summons (h) 7 & 8 Vict. c. 101, s. 70. to the said requiring him to appear [&c. as in the summons]: and whereas proof upon oath hath now been given before us, of the personal service of the said summons upon the said and that - for his reasonable expenses of attendance were then [ paid or tendered] to him: and whereas the said hath neglected to appear to give evidence at the time and place appointed in such summons according to the exigency of the said summons: these are therefore to command you forthwith to bring the said A. B. before us the said justices at -, or before such other two justices as may be there present, to be examined concerning the place of [his or the said A. B.'s] last legal settlement, and to be further dealt with according to law. Herein fail you not. Given under our hands and seals this day of in the year of our Lord —. Subpæna for witnesses.] We have seen that a summons and warrant will lie against the witness, as well as against the pauper himself. But as the punishment assigned by stat. 7 & 8 Vict. c. 101, s. 70 (i), for disobedience of a summons, &C., may be very inadequate, particularly where it is required to have books or papers produced which are in possession of the opposite party, it is usual to sue out a subpoena from the crown office of the court of Queen's Bench, and if that be disobeyed, after a personal service of it upon the party to whom it is directed, the court of Queen's Bench on application will punish the disobedience, as a contempt, by attachment. Where, for instance, a crown-office subpoena issues, requiring an overseer or vestry clerk to produce the rate books before justices, for the purpose of their making an order of removal, and it is disobeyed, the court of Queen's Bench, on application, will award an attachment against the party (k). And where, upon an application to justices for an order for the removal of a pauper to the parish of Raddington, one of the overseers of Raddington, being served with a crown-office subpoena on the part of the removing parish, attended, was sworn, but refused to give evidence of the settlement in his parish:-upon motion for an attachment against him, it was holden that he was bound to give evidence; by stat. 3 & 4 Vict. c. 26, no overseer, &c. shall be disabled from giving evidence on any trial or appeal, by reason of his being a party, &c., and the effect of this is, not only to render him competent, but compellable to give evidence (1). Another advantage of a crown-office subpoena is, that if it require the production of any written instrument, (i) Ante, p. 717. (k) R. v. Greenaway et al., 14 Law J. 190, m. R. v. Carey, Id. 191, m.; 7 Q. B. 126. (1) R. v. Vickery, 17 Law J. 129, m. and it be not produced, not only may the party disobeying it be punished by attachment, but secondary evidence may be given of the instrument. But a summons has no such effect (m); nor does the statute 7 & 8 Vict. c. 101, s. 70, give justices any power to punish witnesses for not producing documentary evidence of any kind (n). The examination.] We have seen (ante, p. 715) that it is no longer necessary to send a copy of the examinations to the opposite parish, together with the notice of chargeability; if such parish wish to have a copy, they may obtain it from the clerk to the justices who make the order, upon application. And by stat. 11 & 12 Vict. c. 31, s. 3, it is provided that "on the trial of any appeal against an order of removal, no such order shall be quashed or set aside, either wholly or in part, on the ground that such depositions do not furnish sufficient evidence to support, or that any matter therein contained or omitted raises an objection to, the order or grounds of removal." So that the law, with respect to the matter of these examinations or depositions, is now restored to the same state in which it was under stat. 43 Eliz. c. 2, and until the passing of stat. 4 & 5 W. 4, c. 76. And overseers now, applying for an order of removal, have only to satisfy the justices to whom they apply, by evidence, of the facts necessary to entitle them to such order; but whether the evidence be sufficient or not, or be legal or illegal, is in practice immaterial; for if the justices be satisfied with the evidence given, and grant the order, the effect of the above proviso in stat. 11 & 12 Vict. c. 31, s. 3, is, that no omission or insufficiency in such examinations, no illegality or inadmissibility of the evidence received, can afterwards be made a ground of appeal against the order. This relieves overseers from the numberless objections which used to be taken to the examinations, by the appellants, upon the trial of appeals against orders of removal, when the overseers of the removing parish were required to send copies of the examinations to the opposite parish, by stat. 4 & 5 W. 4, c. 76, s. 79, now repealed. But still overseers, who intend to apply for an order (of removal, ought to be provided with evidence of all the facts necessary to entitle them to it, and such evidence should be legal and admissible, otherwise the justices may refuse to make the order required. The overseers applying for an order of removal, therefore, should be prepared to prove― 1. The residence of the pauper in their parish or township at the time; for if he be not resident in it, he cannot be (m) R. v. Orton, 7 Q. B. 120. (n) See ante, p. 717. |