And the examination must be taken by two justices, and those the same that sign the order of removal *, The K. v. Wykes, Tr. 11 Geo. 2. 2 Strange, 1092.

Therefore in the case of Ware v. Stanstead, Tr. 12 Will. 3, where an exception was taken to an order because it said, it appears upon examination before us, or one of us-THE COURT held that the examination ought to be before both, because both are to make the judgment of removal. And by Gould J. The statute directs, and 'the practice is to make complaint to one justice, and then he grants his warrant to bring the poor man before two justices, and then those two justices are to examine and remove.' 2 Salk. 488.

So in the K. v. Coln, St. Aldwin's, Mic. 13 Geo. 2, an order of removal was made by two justices of Wiltshire, on an exmination taken before two justices of Middlesex, which had been transmitted to the justices of Wiltshire, with an affidavit, verifying that it was duly taken; and this was held bad. For by Lee Ch. J. It is plain that the Wiltshire justices have grounded their adjudication upon the examination transmitted to them from the Middlesex justices. Now the examination on which they relied, being taken by two justices of another county; and the person examined by those justices remaining still alive, for aught that appears to the contrary; it is plain, this deposition ought not to have been received as evidence to ground their adjudication upon; though it might perhaps have been used as concurring evidence. I have often heard it de. clared that both justices ought to be present at the vivá voce examination of the witnesses.'-Page J. I remember a case where it was determined that both justices must be present; and that it is not sufficient for one justice to examine the matter and transmit it to the other, and that other to sign the order without examining into the matter himself.' Burrow's Sett. Cas. 136.

But whether two justices may remove a pauper on his hecoming insane, by virtue of a former examination relative to his settlement taken by other justices, is not clearly settled.. For in the K. v. Eriswell, Tr. 30 Geo. 3, the pauper came into the parish of Icklingham, All Saints, in 1767, where he was em ployed as a day-labourer on the navigation. In 1779 he was taken before two justices of the peace for the county, by the overseers of the parish of Icklingham, for the purpose of being examined as to the place of his last legal settlement; in conscquence of which his examination was taken upon oath before those two justices, and signed by the pauper; by which exami nation it appeared that he had gained a settlement in Eriszell by a hiring and service for a year there, and had done no act

* And the examination of a pauper for the purpose of removal, must be taken and signed by the same two justices in the presence of each other, otherwise it is voidable by appeal. For this sce P. 377 supra.

to gain a settlement elsewhere. No proceedings were had in consequence of this examination until the present order of removal: but the pauper, from the time of the examination being taken, continued to reside in Icklingham All Saints for about five years, without becoming chargeable; when he became insane and continued in a state of insanity to the time of his removal to Eriswell; which removal was by an order of two justices, but not those by whom the examination was taken. On the part of the respondents this examination was offered in evidence, and objected to on the part of the appellants; but it was received by the sessions, the hand-writing of the justices who took the same being first proved; and upon that and other evidence the sessions confirmed the order: but they also stated, that in their opinion the evidence produced, exclusive of the said examination was not sufficient to warrant that determi. nation.-THE COURT were divided in their opinions respecting this case.-Grose J. and lord Kenyon Ch. J. being of opinion, that the justices upon this evidence ought not to have removed the pauper.-Buller J. and Ashhurst J. contra.-Thus THE COURT being divided, no rule could be made, and the orders con. sequently stand confirmed. 3 Term Rep. 707.

But it has been since decided that an ex parte examination in writing of a pauper, taken on oath before two magistrates, for the purpose of removing him to the place of his settlement, is not admissible in evidence, upon an appeal against an order of removal, on the ground of the pauper's having absconded between the notice of appeal and the trial of it before the quarter sessions; although the respondents had used due dili gence, but without effect to procure the attendance of the pau. per as a witness, he not having been heard of from the time of his absconding. The K. v. Newnham Courtney, Ea. Ter.. 41 Geo. 3. 1 East's Rep. 373.

And East in a note in this case adverting to the K. v. Eriswell, observes that the two judges who in that case were of opinion that such an ex parte examination ought to have been received, grounded that opiniou upon the presumption that the pauper was dead, or what was admitted to be equivalent, insane, 1 East's Rep. 375.

But Mr. East seems to have been mistaken in this point, for it has been again decided that the ex parte examination of a pauper touching his settlement cannot be received in evidence of such settlement, although he be dead. The K. v. Aberguilly, Mic. Ter. 42 Geo. 3. 2 East's Rep. 63.

And in the K. v. Ferry Frystone otherwise Ferrybridge, Mic. Ter. 42 Geo. 3, Lord Kenyon Ch. J. said that the point upon which the court were divided in opinion in the K. v. Eriswell has been since considered to be so clear against the admissibility of the evidence, either as to the hearsay of the pauper or his examination in writing, that it was abandoned at the bar in the K. v. Newnham Courtney without argument.

Death-bed declarations.

And although it may be said that there was no evidence there that the pauper, whose examination had been admitted in evi. dence, was dead; yet our opinion against the general doctrine laid down by the two judges who supported the reception of the evidence in the former case was pretty broadly hinted; and that point may now be considered to be at rest. 2 East's Rep. 63.

Neither is what the pauper may have heard his parents say relative to their having been relieved by any parish to be received in evidence as to his settlement, for it is no evidence at all of any such act; the bare fact of a pauper having been reljeved in a parish being no evidence of a settlement there, for he may have been relieved as one of the casual poor, the overseers being bound to relieve paupers who are in want of relief, whether they are settled in their parish or elsewhere. The K. v. Chadderton, Mic. Ter. 42 Geo. 3. 2 East's Rep. 27.

But the death-bed declarations of paupers respecting their settlements ought to be admitted in evidence; as are also when they are dead, their general declarations; and if the sessions refuse to hear such evidence, the court of King's Bench will send the case back for the evidence to be heard, and a conclusion drawn.--This was decided in the K. v. the Inhabitants of Bury, Mic. Ter. 25 Geo. 3, where Lord Mansfield Ch. J. said declarations of parties to relations are in settlement cases admitted as evidence from necessity; a necessity which grows out of the very nature of the subject, and the practice in conformity to this rule has become so very general, that it ought not to be departed from, until very good reasons can be assigned against it. Buller J. and the other judges were of opinion that the declaration of the husband of the pauper on his death bed ought to have been received, and he said from the awful situation in which the party then speaks, such testimony is uniformly received in criminal cases, and is consequently admissible here *. Caldecot's Cuses, 482.

However if such declarations refer to a written instrument unless previous enquiry shall have been made after it, to entitle the parties to give parol evidence thereof; they cannot be received in evidence. See the K. v. St. Sepulchre, Tr. Ter. 25 Geo. 3. 2 Bott, Const's Ed. and Caldecot's Cases 547, in p. 191 ante.

"

And an examination taken, and an order of removal signed by two justices separately, and in different counties, is not void, but only voidable by appeal to the next sessions. Stotfold +, Ea. 32 Geo. 3. 4 Term Rep. 596.

The K. v.

But the justices are to judge of the weight of such evidence compared with the testimony on the other side; and draw the proper conclusion therefrom. ED.

See this case more full, in p. 378 supra.

And in Munger-hunger v. Warden, Hil. 10 Geo. 1, an ex. ception was taken to an order of justices for the removal of a pauper, that it was said to be made upon due examination, without saying that the examination was taken upon oath.— But THE COURT held it enough to say the order was made upon due examination, without saying upon oath, though the statute directs the examination to be upon oath; for when it is said in an order to be " upon due examination,' it shall be intended to be upon oath,' according to the statute. 2 Sess. Cas. 40.

So in the K. v. Fisherton Delamore, Hil. 13 Geo. 2, the order was made upon due consideration.—And by THE COURT. As the order is said to be made upon due consideration,' that implies a due examination,' and therefore it is well. 2 Sess. Cas. 45.

The justices, in an order of removal, must expressly adjudge The adjudica the place to which the pauper is sent, to be his last legal settle. tion. ment-Thus in Bury v. Arundel, Ea. 9 Will. 3, the order was, Whereas complaint hath been made to us, that Jacob Duckin, 'with his wife and children, came from his place of abode and last legal settlement in Bury to Arundel, we therefore require 'you, &c.—And this was held nought; for there is no adjudi. cation of the justices which was his last legal settlement, but enly a complaint that Bury was, which does not appear, whether true or false. 2 Salk. 479.

So in the K. v. Hackney, Tr. 9 Will. 3, an order removing a woman, stating that it appeared on her oath, that her hus band was last legally settled at Hackney, was quashed; because there was no judgment of the justices concerning the last legal settlement, but only the oath of the woman. 2 Salk. 478.

So in the Q. v. Middleham, Mic. 9 Ann. the exception to the order was, because the justices have set forth, that Middlehum was the last legal settlement of the father; therefore they send the son there, and it appears was ten years of age. By THE COURT. The order must be quashed, for there is no adjudication that Middleham is the place of the child's last legal settlement: the settlement of the father is not absolutely necessary to the settlement of the son; at that age he might have gained * settlement. Foley, 271..

So in Eglium v. Hartley Wintley, Tr. 12 Ann. an order adjudges that J. S. was settled at B., and therefore the justices removed his widow and children to B.-THE COURT quashed the order; for the wife may get a settlement after the death of her husband. 1 Sess. Cass. 45.

So in the K. v. Westwood, Hil. 4 Geo. 1, exception was taken, that there was no adjudication of the place to which he was removed being his last legal settlement, but only We order him to be removed to A., as the place of his last legal 'settlement.' And for this fault the order was quashed. 1 Strange, 73.

So in Stallingburgh. Haxhay, Tr. 4 Geo. 1, an order of

removal was quashed, because there was no adjudication; it only said, that we, on examination, do believe the same to be "true;' and a man may believe a thing on uncertain evidence. 1 Sess. Cus. 131.

However, an adjudication of last settlement and last legal settlement is the same thing; because by every new settlement the precedent is discharged. 2 Salk. 473.

But in the K. v. Warnhill, Tr. 3 & 4 Geo. 2, where the order adjudged that the last legal place of the pauper was at Warnhill, omitting the word settlement-THE COURT held this no adjudication of a settlement; and that the order could not be made good by implication. 2 Sess. Cas. 91.

Also the order must adjudge, that the party removed is likely to become chargeable.--Thus in Suddlecomb v. Burwash, Tr. 13 Will. 3, an order was quashed, because it was only said to be complained by the churchwardens, that the person re moved was likely to become chargeable, but not adjudged so by the justices.-For by Holt Ch. J. The justices cannot remove a man unless he be likely to become chargeable. 2 'Salk. 491.

So in the Q. v. Waltham Magna, Ea. 10 Ann. the order adjudged, that the pauper is likely to become chargeable, as we are credibly informed.-By Parker Ch. J. It is the belief of another this is no adjudication. Cas. Sett. & Rem. 38.

So in the Q. v. St. Mary Ottery, Mic. 12 Ann. two justices send a person from St. Mary Ottery in Devon to the parish of St. Mary in Bristel, adjudging in the order that he was last legally settled there, according to their knowledge.-BY THE COURT. They should have said that he was last settled there. An order of removal is a judgment which must be cer. tain and positive; the pauper might have been settled elsewhere, and the justices not know it. The order was quashed. Cas.of Selt, & Rem. 32.

So an order, stating that a woman and six children had intruded, and would become chargeable if permitted to abide was quashed; for this is uncertain, it may be five or ten years afterwards. Cas. of Sett. & Rem. 39.

So in Teelby v. Willerton, Hil. 4 Geo. 1, in an order of re moval, the justices adjudged that a person may become charge. able.--By THE COURT. This is not sufficient, for the statute only enables the justices to remove, persons likely to become chargeable; for a man of the greatest estate may possibly one time or other become chargeable, though it is very unlikely; and is such a person removeable? There is as much difference in this case between may and likely, as between a possibility and a probability. 1 Strunge, 77.

So in the K. v. Minchinhumpton, Tr. 3 & 4 Geo. 3, there was an adjudication of the last place of settlement, but no adjudication that the party was likely to become chargeable; and the order was quashed for this defect. 2 Sess. Cas. 93. So an order, stating that the pauper is likely to become