
    The Directors of the Poor of Bucks county against The Guardians of the Poor of Philadelphia.
    
    THE record in this cause was removed from the May- or’s Court of the city of Philadelphia by certiorari.
    
    The case was shortly this : — An order was made by two aldermen of the city of Philadelphia for the removal of Catharine Paid, a pauper, and her three children, Robert, Rachael, and Jane, to Bucks county. The directors of the poor of that county appealed to the Mayor’s Court, where, upon the investigation of the case, it appeared, that the legal settlement of the mother was in Bucks; that the children were all illegitimate, were under the age of seven years, and that one of them, Rachael, was born in Bucks county. The’ Court therefore, confirmed the order of the aldermen as it respected the mother and Rachael, whose legal settlement they adjudged to be in the county of Bucks. They also confirmed the order so far as it related to the removal of Robert and Jane, to the place of their mother’s settlement for nurture ; but so far as it related to the settlemeht of the two last mentioned children, they quashed the order. 1 • ( :
    No costs were awarded to the appellants.
    
      Kittera, on behalf of the directors of Bucks,
    
    took five exceptions to the proceedings of the Mayor’s Court.
    1. That the Mayor’s Court had no power to quash the order in part, and confirm it in part.
    2. That the Court had no power to make an original order, differing essentially from that brought before them by appeal.
    Oii an appeal from an order for the removal of a pauper,by two aldermen, the Mayor’sCourfc may in part quash the order, and in part confirm it.
    
      By an order of two aider-men, a woman and her three children were removed from Philadelphia to Bucks county,on the ground of their all having a settlement there. 'The Mayor’s Court, on an appeal, were of opinion,that thp mother and one child had a settlement in Bucks. They therefore confirmed the order as to them. The other children, being under the age of seven years, they ordered to be sent to the place of their mother’s settlement for nurture only. Held, that this was not an original order, and that the Mayor’s Court had a right to make it.
    Where children, under the age of seven years, are sent to the place of their mother’s settlement for nurture, the expense of their maintenance is to be borne by the place from, which they are removed, and not by that to which they are sent.
    It is not necessary that the order should specify the age to which the children are to be supported in the place to which they are thus removed, because the law fixes seven years as the age at which nurture ceases,
    Where, on appeal, an order of removal is in part confirmed, and in part quashed, neither party is entitled to costs.
    
      Query, If the place from which children are removed for« nurture, is bound to give security for their maintenance.
    
      3. That the order of the Court is erroneous, because they confirm the order of the magistrates, so far as it respects the remova^ Robert and Jane, whose legal residence was not in Bucks. ,
    4. The-order should have required the guardians of the Poor Philadelphia, to give security to the directors of the poor of Bucks, to indemnify them for the support of the children during nurture.
    5. The Court should have awarded costs to the appellants. In support of his exceptions Mr. Kittera referred to 4 Wms. Just. 533. 536, 537. Burr. Sett. Cas. 163. 236. 2 Show. 503. Salk. 475. 2 Nol. 68. Act of Assembly of 29th March, 1803, sec. 21, 22. 4 Sm. Laws, 59.
    
      Ewing', for the guardians of the poor of the city of Philadelphia,
    
    said, that the Mayor’s Court had not made an original order; they had in part confirmed, and in part quashed the order of the aldermen, which they had a right to do. 2 Nol. Poor Laws, 59. 68. 76, 77. 173. 193. 362. 368. Ib. App. 65, 66. Burr. Sett. Cas. 213. 253. 2 Salk. 482. 1 Botts, 468. 3 Botts, 41. 48. 3 Burn's Just. 276.
    The appellants were not entitled to costs. The act of as- . sembly gives costs only to the party in whose favour the appeal is determined. In this case it was determined in favour of neither party, and the Court was right in giving costs to neither. The words of the English statute seem imperative as to costs; yet it has been decided, that the Court may allow them or not at their discretion. 2 Nol. 321. 2 Botts, 748.
   Tilghman C. J.

The proceedings in this case have heen brought before us by certiorari, and several exceptions have been taken to the order made by the Mayor’s Court.

1. First it is said, that the court was bound to confirm the order of the aldermen, or quash 'it, in toto, and could not confirm in part, and quash in part. But there is nothing in this objection. The cases cited prove it to be the daily practice to confirm in part, and quash in part; and it is a very convenient practice, as it saves the delay and expense of new proceedings.

2. The second exception is, that the Mayor’s Court had no right to make an original order. But it is denied that they have made an original order. To decide whether they have, we must examine both orders. By the order of the aldermen, the mother and her three children were removed from Philadelphia to Bucks, on the ground of their all having a settlement there. The Mayor’s Court were of opinion, that the mother, and only one child, had a settlement in Bucks; they therefore confirmed the order as to them. As to the other two children, their opinion was, that being under the age of seven years, they ought to be sent with their mother for nurture only. They therefore confirmed the order of the aldermen, so far as it respected the removal of those two children to Bucks for nurture, and quashed it so far as it related to their settlement. How then can this order of the Mayor’s Court be said to be original ? It was made in a case brought before them by appeal, nor was the right of any third person affected. Philadelphia and Bucks were the only parties, on whom either of the orders operated; and all the persons removed by the aldermen, were removed also by the Mayor’s Court. The only difference between the two orders is, that by the latter (that of the Mayor’s Court) two children are to be supported for a shorter period. I cannot think the case falls within the meaning of that principle, which forbids the Mayor’s Court to make an original order. It was in truth, but a modifying of the order of the alderman. It only lessened the time for which the two children were to be supported, at the expense of Bucks county. It was in substance, what the court called it, a confirmation in part, and a quashing in part, of the order of the alderman.

3. The third exception is, to the removal of these children for nurture, who were not settled in Bucks. From the nature of the case, this removal was proper. The law is too humane to separate children of such tender age from their mother. To tear them asunder would be to violate the law of nature, to which all human laws should be subservient. And it would be a violation to no purpose, because, although the children are to be nurtured in the same place with their mother, 'yet the expense of that maintenance, is to be borne by the county which ought to bear it j in the present case, for instance, by the city of Philadelphia, from which the children were removed to Bucks; not because Bucks was bound to maintain them, but because it was improper to separate them from their mother. These principles are recognised in the case of Traford v. Brandan, Carth. 449, reported also in Salk. 482, as an anonymous case. It was objected further, that the order of the Mayor’s Court should have specified the age to which these young children should be supported in Bucks, and that the general expression for nurture, was vague and indeterminate. The answer is, that the law having fixed seven years lor the age at which nurture ceases, a removal for nurture, is tantamount to a removal till the age of seven years.

4. The fourth exception is, that the Mayor’s Court should have ordered'the guardians of the poor of the city of Philadelphia, to give security to the directors of Bucks, to indemnify them for the maintenance of the children removed for nurture. If Bucks county had no remedy without such an order, the exception would be good.; but I do not-take that to be the case. I understand that the guardians of the poor of Philadelphia are willing to give the indemnification, and if they refuse, they may be compelled to it.

5. It is objected in the last place, that the Mayor’s Court should have given costs to Bucks county. The act of assembly (29th March, 1803, s. 22. 4th Sm. L. 60,) directs,, that costs shall be awarded to the party,.in whose behalfjthe"cc ap- “ peal was determined.” Now, in whose behalf was this appeal determined? Of neither .party; each was victor.in part, and in part vanquished. Under these circumstances .the court left each to pay his own costs. I think they were right,- because the case does not come, within the provision of the' law. Upon .the whole, I am of opinion, that the order of the Mayor’s Court should be confirmed.

Yeates J.

The decision of the--Mayor’s Court-, in this case, upon the appeal, appears to me to be perfectly correct.

It seems well settled, that the members of the same family may be removed by one order; and that although different parts of it may have different settlements, it may be so done. Where such instances occur, it is daily practice in England., to affirm the order in part, and quash it as to the remainder. 2 Nolan's Poor Laws, 68, and note 3. The practice is attended with many conveniences. It prevents a multiplicity of removals, saves expense, and manifestly tends to the relief and ease of the poor. The separation of children, within the age of nurture, from the mother, would be a plain violation of the rights of nature ; and hence it is, that if the mother be settled in a different parish, or township, from her child, and reside there, the place in which the infant is settled, must maintain it during such residence with the mother; and the law is the same, whether the child be legitimate or illegitimate. 2 Nol. 68, and the authorities cited in the note.

I do not view the decision, on the appeal, as an original order. The Mayor’s Court affirm the order of removal of the two aldermen, in every particular, except as to the place of settlement of Robert and Jane: But.they, being within the age of nurture, must necessarily have gone with their mother, or be maintained during their residence with their mother, by the township wherein they were last legally settled. The city guardians have offered to indemnify the appellants against any expenses which may be incurred for the maintenance of these infants, while within the age of nurture, and continuing with their mother. Had they made no such offer, I should presume they would be responsible in their political capacity, as they were bound to support the order made on their own application.

This does not appear to be such a case as imperiously called on the Mayor’s Court to award costs to the appellants, under our act of assembly. The removal of the mother and her three children, to Bucks county, was legal and proper. I forbear giving any opinion, whether, if the appeal had been special, as to the place of last legal settlement of Robert and Jane, Bubks county would not be entitled to costs.

Upon the whole, I am of opinion, that the order of the Mayor’s Court be affirmed.

Brackenridge J. concurred.

Proceedings affirmed.  