The mere fact of a parish being in two counties is no reason for considering the part in each county as a separate parish (y).

By statute (43 El.), a churchwarden is an overseer for the whole parish; so that whether it is in one or more counties, a pauper may be removed to it, though such churchwarden acts as overseer for the whole parish, under an appointment as overseer, by justices of one county only (z).

A removing parish maintaining its own poor may be estopped from saying the order is a nullity for being directed to a place not maintaining its own poor, by having acted on the order in delivering the pauper, &c., and afterwards resisting an appeal against it (a). The parish of Llywell had no parish officers of its own, but contained three hamlets, one of which was named Treganmaur. Each maintained its own poor, and appointed its own churchwardens and overseers. An order of removal directed to " the churchwardens and overseers of the parish of Llywell" was served on, and the pauper delivered to the overseers of the hamlet of Treganmaur, who gave notice of appeal, describing themselves as "churchwardens and overseers of the hamlet of Treganmaur, in the parish of Llywell." The sessions refused to hear the appeal for the variance between the order of removal and that notice; but the hearing was compelled by mandamus, for the respondents having served the order on the overseers of Treganmaur, precluded themselves from objecting, to the appeal or notice, that they, though appellants, were not named in the order (b).

(y) R. v. Salop (Justices), 3 B. & Ad.

910.

(z) R. v. Merevall, Burr. S. C. 661. See R. v. Bramshaw, id. 98, that an order of removal from a part of a parish in one county, to another part of it in another, must on the face of it show those parts to be distinct townships or vills, separately maintaining their own poor. (a) Reg. v. Westmoreland (Justices), 12 L. J. (M. C.) 113.

(b) R. v. Carmarthenshire (Justices), 4 B. & Adol. 563.

The parish of Bishop's Wearmouth has no overseers of its own; each of the seven townships in it, including one of the same name as the parish, appointing separate overseers. Another township was named Bishop's Wearmouth Panns. A removal was made to the township of B. W. P. by an order directed (mistakenly) to the churchwardens and overseers of the parish of B. W. The over

seers of B. W. Panns admitted the pauper to be settled in that township, but refused to receive him under the order as directed, except on some terms of foregoing some costs of maintenance, which were refused. Whereupon the removing officer took the pauper and the order to the churchwarden of the parish, who received the pauper into the workhouse of the township of Bishop's Wearmouth. That township was held entitled to appeal, as "parties aggrieved" by the order, though not mentioned in it; for as the parish to which it was directed was similarly named, the township might reasonably apprehend, that if they did not appeal, the order would estop them from showing on a future occasion that the pauper was not settled there: R. v. Bishop's Wearmouth (Township), 5 B. & Adol. 942; R. v. Kirkby Stephen, Burr. S. C. 664, was relied on by the court; in which

By 7 & 8 Vict. c. 101, s. 70, on request by any party to any proceedings before justices in petty or special sessions, or out of sessions under that act, or any act required to be construed as one act therewith, that any person be summoned to appear as a witness, a justice may summon such person to appear and give evidence on the matter of such proceedings. If he does not appear on the summons, then on proof on oath of its personal service, and of payment or tender of reasonable expenses of his attendance, a justice may compel it by warrant (d).

Though the examination of the pauper is not essential, and a valid order may be made on other testimony (e), yet on complaint made of his chargeability, the magistrate should endeavour to procure his attendance at the petty sessions (f). If from age, illness, or infirmity, he is unable to attend them, one magistrate acting for the district (g) where he is, may take his examination, and after his report of it to another like justice, they may adjudge the settlement and make the order (h). Both justices must in every case be present at the examination, and should sign it when written down (i). Only the justices who take the examination can make the order (k).

Since 4 & 5 W. IV. c. 76, s. 79, every such examination must be taken in writing in order to sending the copy as there directed.

There is no longer any distinction as to the strictness necessary to be observed in an "examination" and a statement of " grounds of appeal" (1), though, at the time the fifth edition of this work appeared, the

case it was decided, that if a parish and a township within it, maintaining its own poor, have the same name, an order of removal directed to the parish will designate the township, which should appeal accordingly, to prevent the order being conclusive.

But if an order be misdirected to the officers of a township within a parish, where the parish maintains the whole poor, the order should be amended at sessions, and its misdirection forms no ground of appeal. R. v. Bingley, 4 B. & Adol. 567, n.; and see R. v. Denbighshire (Justices), 1 B. & Ad. 616.

(d) Justices having express power by 13 Car. II. to make a warrant of removal, have incidental power to take the examinations necessary to get at the requisite facts, per Lord Kenyon, 3 T. R. 731; R. v. Eriswell (Inh.), and see Lambard, Bk. 1, Ch. 21, p. 209. Such "warrant "" is not a ministerial but a judicial act, rested on the evidence before

them. Reg. v. Rogers and others, 12 L. J. (M. C.) 50. Nor will it be disturbed by mandamus to take fresh evidence, &c. S. C.

(e) R. v. Bagworth, Cald. 179; R. v. Wykes, Stra. 1092; Andr. 238.

(f) R. v. Tavistock (Inh.), 3 D. & R. 427, as to corrupt omission to do so, S. C.; R. v. Howarth, 2 Bott, 640. (g) Sic in act.

(h) 49 G. III. c. 124, s. 4. The order so made need not state the special facts, R. v. All Saints, South Lynn, 4 M. & S. 354. See 9 East, 101, R. v. Everdon.

(i) R. v. Stansted Mount Fitchet, 2 Salk. 488; R. v. Wykes, supra.

(k) R. v. Coln St. Aldwins, Burr. Set. C. 136.

(1) See 10 Ad. & E. 688, in Reg. v. West Riding, Yorkshire (Justices), (Clinton v. Birstwith), and 1 Q. B. 830, per Coleridge, J., 2 Q. B. 531.

former was viewed with more indulgence, on one ground among others, that the improper act of the removing justices should not injure the respondents (m). The act 4 & 5 W. IV. intended that all practicable particularity should be given to the examination (n), and the object of the recent decisions has been to prevent experimental removals on imperfect statements which might leave one party free to prove any case, and wholly mislead the other (o).

If the examination of each witness does not by its heading (or caption) and its jurat taken together, show unequivocally that it was sworn before justices having jurisdiction to take it on oath (p), there is good ground of appeal; nor is such defect cured by the regular heading or jurat of any other subsequent examination, though on the same sheet of paper (q).

But a wife and children may be properly removed to her maiden settlement on examinations disclosing it, though one of them (the husband's) is intituled as touching his lawful settlement, her own being intituled in the same way, and only one other being headed as to the settlement of the husband and wife and their children; for inquiry into the husband's settlement was requisite to found the proceeding, and till it was shown that it could not be discovered, hers was immaterial (†).

As chargeability is the foundation of an order of removal (s), the examination must contain sufficient legal evidence that the pauper was actually chargeable to the removing parish, i. e., had in point of fact been relieved by it in money, &c. (t) and a mere statement by relieving officer or pauper, that he is "chargeable" or "actually chargeable" will not suffice, that being a mere conclusion of law (t).

The chargeability should exist before and at the time of making the order. Where the examination and order are dated on the same day, there is of course no ground for presuming any charge of the circumstances of the pauper (u). It is sometimes said that a pauper chargeable on the day when the examination was taken may no longer be

(m) Coleridge, J., in R. v. Kelvedon (Inh.), 5 Ad. & E. 687, 691. Approved per Cur. in R. v. Derbyshire Justices (Castleton v. Bradwell), 6 Ad. & E. 893.

(n) Dict. Williams, J., 11 Ad. & E.629. (0) Per Lord Denman, 11 Ad. & E. 624, 626.

(p) e. g., justices of the county being also the removingjustices, Reg.v.Shipston on Stour, 13 L. J. (M. C.) 128; 1 New Sess. C. 230, S. C. Order quashed on this ground of appeal. (g) S. C.

(r) R. v. Leeds (Inh.), 13 L. J. (M. C.) 107; S. C. nom. Washton v. Leeds, 1 New Sess. C. 257. Order quashed, but in part only, and on other grounds.

(8) Reg. v. Black Callerton (Inh.), 10 Ad. & E. 679, see id. 704.

(t) Reg. v. High Bickington, 13 L. J. (M. C.) 74; no such strictness formerly, e. g., R. v. Binegar, 7 East, 377; or even as late as Reg. v. Black Caller ton, supra.

(u) Per Lord Denman, 2 Q. B. R. 588, note, Reg. v. Rotheram (Ink.).

so at the time of making the order of removal on some subsequent day (x). However where an order of removal adjudged that the paupers were last legally settled in M. N., the parish M. N., to which the removal was made, objected as appellants that there was no adjudication of a present settlement in their parish, Lord Ellenborough said, that the order referred to the time of the complaint made, and the court could not intend an intermediate settlement (in this case an intermediate acquisition of means of living) between the hearing of the complaint and the making the order of removal (y). It seems that it would be for the appellants to show such change in the pauper's circumstances between the dates of the examination and order. When a year had elapsed between the signing the order by the justices and its execution by the officers, Lord Kenyon said, there might be some weight in that objection, if the circumstances of the pauper had been altered (z). Where removing justices adjourn their meeting in order to make the order of removal, that adjournment should be entered by their clerk.

The word "examination," though in the singular number in 4 & 5 W. IV. c. 76, s. 79, means all the evidence elicited before the justices relative to the settlement (a); so that if the whole of such evidence is not stated in the copy sent to the respondents, it would be a good ground of appeal, though the evidence on which they adjudicated appears, and the evidence of one witness, which was not acted on, is all which is omitted (b).

Facts sought to be established before removing justices must be established by legitimate evidence only. Thus, it is a good ground of appeal against an examination, if it fails to show that the best evidence was produced, or its absence properly accounted for before them by loss, destruction, &c. (c), or if the matter stated in it as evidence of settlement is hearsay (d), without other legal evidence of it also appear

(x) See converse stated, 3 Q. B. 403, Patteson, J.

(y) R. v. Binegar, 7 East, 377, 380. (z) R. v. Llanwinio (Inh.), 4 T. R. 473.

(a) See per Patteson, J., Reg. v. Black Callerton (Inh.), 10 Ad. & E. 679, 682.

(b) R. v. Outwell (Inh.), 9 Ad. & E. 836. Acc. in R. v. Lidford (Inh.), 1 New Sess. C. 146, per Coleridge, J.

(c) Reg. v. Mildenhall (Inh.), 2 Q. B. 517. The settlement rested on a previous order of removal unappealed against. The examination stated that

pauper had been removed by order of justices, but did not show that that order was produced and proved before the removing justices, or that it was there shown to have been lost or destroyed. The parol evidence of the order was held improperly received by the removing justices. Order of sessions confirming the order of removal was quashed.

(d) Reg. v. Lydeard St. Lawrence, (Inh.), 11 Ad. & E. 616, a birth settlement was set up by the party himself, swearing he was born in the appellant parish, as he had heard and believed." Ground of appeal, that it was not proved

ing on the examination (e), or if it can be known only by hearsay (ƒ), e. g., where pauper's father swore that the place of settlement of his father was E., as he had heard his father say, and believed to be true, and that he had heard his father say he had received relief from the overseers at E.; and pauper swore that his father's place of settlement was at E., as he had heard him say, and believed to be true (g). But inadmissibility of evidence from personal incapacity is no objection to the examination, if it was not made known to the removing justices at the time (h).

The examination must state on the face of it, either expressly or by fair and reasonable intendment (i), every fact necessary to give the justices jurisdiction to remove, and prima facie to justify them in so doing viz.-every fact essential to make up some known ground of removal in right of a given settlement, or the order will be quashed at the sessions, if the defect of evidence is pointed out by a sufficient ground of appeal (k).

Thus, in every case, the examination must show the pauper to "inhabit" the parish or township, &c., from which he is to be removed at the time of the examination taken, and order of removal made(1);

or set forth on oath "of any credible witness" when or where he was born, Q. B. held that this objection should prevail at sessions to quash the order.

(e) Reg. v. Tetbury (Inh.), 11 Ad. & E. 615, n., and per Coleridge, J., id. 630. Semble, the admission of some hearsay evidence would not vitiate the examination, if it also contains legal evidence sufficient to warrant the removal, S. C.

(f) Reg. v. Rishworth (Inh.), 2 Q. B. 476, where a man swore he was born illegitimate at S. Ground of appeal was that the examination furnished no legal evidence of a birth settlement. Sessions were held right in quashing the order without hearing respondent's witnesses.

(g) Reg. v. Ecclesall Bierlow (Inh.), 11 Ad. & E. 607. Ground of appeal was that the order was bad and inoperative, and the examinations on which it was made "defective and insufficient to ground and support the same."

(h) Reg. v. Alternun (Inh.), 10 Ad. & E. 699. Case of a convicted felon (whose examination might be taken now). The case of lunacy, &c., is similar in principle.

(i) 7 East, 389, 394; R. v. Crisp, 3 Q. B. 808, Lord Denman.

(k) See 2 Q. B. 493, 554, and Reg. v. Lydeard St. Lawrence, 11 Ad. & E. 616. The examination stated an apprenticeship and service in appellant parish with A. H., a third person, without alleging the master's consent. Held bad on a ground of appeal stating that it did not appear that examinant served A. H. with consent of the master, or in any other way under any indenture of apprenticeship, ending, "and said examinations are too general, and are wanting in sufficient particularity in each of the last-mentioned respects." Order of sessions confirming order of removal quashed, Reg. v. Stoneleigh (Inh.), 2 Q. B. 530; Reg. v. Alternun (Inh.), 10 Ad. & E. 699.

(1) Reg. v. Rotherham (Inh.), 2 Q. B. 557, n., admitted that a residence in D. shown thus, "W. T. of the township of D.," gave justices jurisdiction to remove, Reg. v. West Riding, Yorkshire, (Justices), 12 L. J. (M. C.) 37; Reg. v. Rotherham, 2 Ad. & E. 557, S. P.; but see Reg. v. Flockton (Inh.), 2 Q. B. 535-539. "Of" imports dwelling in at the time, see Reg. v. Toke and another, 8 Ad. & E. 227, remarked on per Cur. 2 Q. B. 539. See ante.