By stat. 11 & 12 Vict. c. 31, s. 6, "if upon the trial of any appeal against an order of removal, or upon the return to a writ of certiorari, any objection shall be made on account of any omission or mistake in the drawing up of such order, and it shall be shown to the satisfaction of the court that sufficient grounds were in proof before the magistrates making such order to have authorized the drawing up thereof free from the said omission or mistake, it shall be lawful for the court, upon such terms as to payment of costs as it shall think fit, to amend such order of removal, and to give judgment as if no such omission or mistake had existed."

In what cases the order may be abandoned or superseded.] Formerly the overseers of the removing parish might abandon the order of removal, and take back the pauper, if he had been removed, even after notice of appeal given, and after the removal of the pauper (b), provided it were before the entry of the appeal (c). This power is now much enlarged, and is fully regulated, by stat. 11 & 12 Vict. c. 31, s. 8, by which it is enacted, that "in any case in which an order shall have been made for the removal of any poor person, and a copy or counterpart thereof sent as by law required, it shall and may be lawful for the overseers or guardians of the parish who shall have obtained such order of removal, whether any notice of appeal against such order shall or shall not have been given, and whether any appeal shall have been entered or not, [or even after the appeal has come on for hearing, and has been respited to a subsequent sessions upon terms (d),] to abandon such order by notice in writing under the hands of such overseers or guardians, or any three or more of such guardians, to be sent by post or delivered to the overseers or guardians as aforesaid of the parish to which such person is by the said order directed to be removed; and thereupon the said order, and all proceedings consequent thereon, shall become and be null and void to all intents and purposes as if the same had not been made, and shall not be in any way given in evidence in case any other order of removal of the same person shall be obtained provided always, that in all cases of such abandonment the overseers or guardians of the parish so abandoning shall pay to the overseers or guardians of the parish to which such person is by the said order directed to be removed, the costs which the said last-mentioned overseers or guardians shall have incurred by reason of such order, and of all subsequent proceedings thereon, which costs the proper officer of

(b) R. v. JJ. of W. R. Yorkshire, 2 Q. B. 705; 11 Law J. 57, m. (c) R. v. Llanrhydd, Burr. S. C.

VOL. III.

k k

658. R. v. Diddlebury, 12 East, 359.

(d) Killymaenllwydd v. St. Michael's, Pembroke, 21 Law J. 79, m.

the court before whom any such appeal (if it had not been abandoned) might have been brought, shall and he is hereby required, upon application, to tax and ascertain at any time, whether the court shall be sitting or not, upon production to him of such notice of abandonment, and upon proof to him that such reasonable notice of taxation, together with a copy of the bill of costs, has been given to the overseers or guardians abandoning such order as the distance between the parishes shall in his judgment require, and thereupon the sum allowed for costs, including the usual costs of taxation, which such officer is hereby empowered to charge and receive, shall be indorsed upon the said notice of abandonment, and the said notice so indorsed shall be filed among the records of the said court; and if the said costs so allowed be not paid within ten days after such costs shall have been lawfully demanded, the amount thereof may be recovered from such last-mentioned overseers or guardians in the same manner as any penalties or forfeitures are recoverable under stat. 4 & 5 W. 4, c. 76." At present they would be recoverable under stat. 11 & 12 Vict. c. 43.

The following may be the form of the notice :

To the churchwardens and overseers of the poor of ·

Take notice, that we hereby abandon the order of A. B. and C. D., esquires, two of her Majesty's justices of the peace for the county of — for the removal of J. S. to your parish, a counterpart of which order we sent to you on last past.

Given under our hands this

day of, 185

It is not necessary that it should state the reason of the abandonment, or contain an offer to pay costs, as was usual in notices of abandonment previously to this statute.

Where after the appeal came on for hearing, it was respited until the next sessions upon terms, but in the meantime the respondents gave notice that they abandoned the order; at the next sessions, however, the justices proceeded to quash the order, and adjudged the respondents to pay the costs: upon an application for a rule to bring up the order of sessions, for the purpose of enforcing it, Erle, J., held that after the order was abandoned, the sessions had no authority to proceed with the appeal, and the application was therefore dismissed (e).

A supersedeas of the order, by the two justices who granted it, was also formerly very usual; but now it is no longer

necessary.

(e) Killymaenllwydd v. St. Michael's, Pembroke, 21 Law J. 79, m.

SECTION II.

Suspension of the Order.

In what cases and how, 747. | Costs of maintenance upon a

No settlement pending the

suspension, 750. Subsequent permission to remove, 750.

suspended order, 752. Appeal against the order for costs, 755.

In what cases and how.] By stat. 35 G. 3, c. 101, s. 2, reciting that." whereas poor persons are often removed or passed to the place of their settlement during the time of their sickness, to the great danger of their lives;" for remedy whereof, it is enacted, That in case any poor person shall from henceforth be brought before any justice or justices of the peace, for the purpose of being removed from the place where he or she is inhabiting or sojourning, by virtue of any order of removal, and it shall appear to the said justice or justices that such poor person is unable to travel, by reason of sickness or other infirmity, or that it would be dangerous for him or her so to do, the justice or justices making such order of removal are hereby required and authorized to suspend the execution of the same, until they are satisfied that it may safely be executed, without danger to any person who is the subject thereof; which suspension shall be indorsed on the said order of removal, and signed by such justice or justices.

And by stat. 49 G. 3, c. 124, s. 3, in order to avoid any pretence for forcibly separating husband and wife, or other persons nearly connected with or related to each other, and who are living together as one family at the time of any order of removal made, during the dangerous sickness or other infirmity of any one or more of such family, on whose account the execution of such order of removal or vagrant pass is suspended, it is enacted, that where any order of removal shall be suspended by virtue of this Act or of stat. 35 G. 3, c. 101, s. 2, on account of the dangerous sickness or other infirmity of any person thereby directed to be removed, the execution of such order of removal shall also be suspended for the same period with respect to every other person named therein, who was actually of the same household or family of such sick or infirm person at the time of such order of removal made.

Where the pauper was too unwell to be brought before the magistrates, and they made the order of removal, and suspended it entirely on the evidence of the pauper's father, it was objected that it was only in cases where the pauper was brought before the magistrates, that the latter have authority

by stat. 35 G. 3, c. 101, s. 2 (supra), to suspend the order of removal: but the court held that according to the fair meaning of the statute, it was sufficient to bring the question of the removal and suspension before the magistrates, and that it was not necessary that the pauper himself should personally appear before them (e).

The form of the suspension, to be indorsed upon the order of removal, may be thus:

Whereas it appears unto us, —, two of her to wit. Majesty's justices of the peace in and for the said county of the justices making the within order of removal, that the therein-named is unable to travel by reason of sickness and infirmity of body, and that it would be dangerous for so to do: We the said justices do hereby suspend the execution of the said order of removal, until we are satisfied that it may be safely executed without danger. Given under our hands this day of —, the year of our Lord one thousand eight hundred and fifty

in

A copy or counterpart of this order and indorsement, accompanied by a notice of chargeability and a statement of the grounds of removal, must be sent to the parish officers of the opposite parish, as in ordinary cases. For by stat. 11 & 12 Vict. c. 31, s. 10, "all the provisions which relate to the sending and service of copies of orders of removal shall apply to such orders when suspended, and to all orders consequent upon such suspension." And a copy or counterpart of an order of removal, before removal, must be sent "by post or otherwise," by the overseers or guardians of the parish obtaining such order, or any three or more of such guardians, to the overseers of the parish to whom such order shall be directed (ƒ). If served at the time of the removal, either the order itself is served upon one of the overseers,-or a copy of it, and the original is at the same time shown to him.

Care must be taken to send a copy or counterpart, together with notice of chargeability and a statement of the grounds of removal, to the overseers of the poor of the opposite parish, within ten days of such order being made, otherwise you will not be entitled to the costs of maintenance (g); and if the order be not served within a reasonable time, it will perhaps be deemed a nullity. Where the order was made and suspended in May, 1821, but was not served until February, 1824, when the pauper dying, it was served at the same time

(e) R. v. Everdon, 9 East, 101. (f) 4 & 5 W. 4, c. 76, s. 79, post, p. 756.

(g) 4 & 5 W. 4, c. 76, s. 84.

with an order for reimbursing the costs of maintenance: the court held that as the order of removal and suspension was not served within a reasonable time, it was a nullity, and therefore the order for the costs of maintenance could not be supported (h). But where an order of removal was made in May, 1825, and was suspended on account of the pauper's illness; it was not served until August, 1826; in January, 1831, the suspension was taken off by an order of justices, which also ordered the payment of 801. 128. 6d. as the costs of maintenance; and in February, 1831, the pauper was removed, he being from May, 1825, until then, in such a bad state of health that he could not be removed; the parish then appealed against the first order, and the sessions held, that as it had not been served within a reasonable time after it was made, it was void, and they therefore quashed both orders: but the court held that this made the order voidable only upon appeal, and not void; and if the parish had appealed against it at the next sessions after they were served with it in 1826, the sessions might have quashed it for that reason, if they thought fit; but as they had not appealed in time, they could no longer avail themselves of the objection (i). Whether this is at all affected by stat. 11 & 12 Vict. c. 31, s. 10, above mentioned, may possibly admit of some doubt; but I am inclined to think that it is not.

As to the time of appealing against a suspended order, it is enacted by stat. 49 G. 3, c. 124, s. 2, "That when the execution of any such order of removal shall be suspended, the time of appealing against such order shall be computed, according to the rules which govern other like cases, from the time of serving such order, and not from the time of making such removal under and by virtue of the same." Even where at the time of making and serving the original order (7 April, 1843), the pauper had resided more than five years in the removing parish; and on the 29th September, 1847, an order giving permission to remove him was made, and he was accordingly removed, and the parish to which he was removed then appealed the court held that although the removal was undoubtedly illegal, the pauper having resided more than five years in the removing parish, yet as the time for appealing was expressly limited by stat. 49 G. 3, c. 124, to the next practicable sessions after the service of the order, and not after the time of removal, the appellants were too late in their appeal (k). But in order to bring a case within the statute, either the order itself must be served, or a copy served, and at the same time the original shown to the party. And where

(h) R. v. Lampeter, 3 B. & C.

454.

(i) R. v. Penkridge, 3 B. & Ad.

(k) R. v. Chedgrave, 19 Law J. 54, m.