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5. Of notice of

Sirihly, Appeal require notice ; but have they not, in effect, had notice ? the object of giving against an order notice, is to inform a person of that of which he may, otherwise, remain ignoof removal.

rant; but a person cannot be supposed to be ignorant of that which is done

at his own request, and for his own convenience.- Bayley, J. The practice appeal.

of the sessions does not apply to this case, but only to the common case of entry and respiting an appeal. In many cases, parties enter and respite an appeal, as a matter of course, not having satisfied themselves of all the facts of the case. But

appellants were ready, and in condition to try, and but for the application of the respondents, would have tried their appeal. Then the respondents desire to respite it, which is, in effect, an agreement that they will be ready at the next sessions to try it without notice.

It is not essential that the notice of appeal should be delivered in writing; it may be given orally, but it is obviously most prudent to give a written notice, and such is the general practice. '[See a form, post, Appendix.]

an

order unap

1. How far it is final,

the first, except

nal order is made, cannot remove till that be re. versed.

(Seventhly)- Effect of an Order unappealed against.(a) Seventhly,

1. How far it is Final. Eflect of

2. Of what Facts it is conclusive, when Unappealed againsi. pealed against.

1. How far it is Final. Malendine v. Hunsdon, Fol. 273. Two justices, by an order, send some

persons to Hunsdon ; two justices there, by an order, send them back again. Order not appeal. —By the Court: They ought to have appealed, and not sent them back; final; and there and held the order of the first two justices to be good, because there was no can be no second appeal against it. order reversing Chalbury v. Chipping Farringdon, 2 Salk. 488.

A person was removed, ing by appeal. by an order, from a parish in Waruickshire to Chalbury; from thence, by an Parish, upon order, to Chipping Farringdon. It was objected, That Chalbury ought to whom an origi.

have appealed, and got the order upon them discharged; to which Holt, C. J., agreed; for sending the man to another place is falsifying the first order

, which cannot be done but by appeal; for the order is a determination of the right against all persons, till it be reversed. Chalbury should have appealed from the Warwickshire order, and got that set aside, and sent the mau back thither; and the justices there should have sent him to Chipping Farringdon.

Therefore the latter order was naught. The original Rex v. Leverington, Burr. S. C. 276; 2 Bott, 935. Removal from Sution unappealed from, St. Mary's, to Leverington ; and no appeal: and the sessions confirmed the

order. Fuur months after the first order, a second order was made to remove the pauper from Leverington to Sutton St. Nicholas; which second order was confirmed upon appeal.—By the Court. The second order, and the order of sessions confirming it, were quashed, and the first order was confirmed; for L. was bound by the first order unappealed from, unless some subsequent settlement appears, and four months is not a sufficient distance of time, whereupon to ground a presumption of having acquired a new settlement. And the order of sessions, confirming the first order, was quashed, as being a voluntary and extra-judicial act of the sessions, to confirm an order which was not complained of.

A resolution to the same effect in Godalmin v. St. Michael's, Winchester, 13 Geo. II., was mentioned by

the Court. Except where the But in Rex v. Sualcliffe, Cald. 248; 2 Bott, 896.

Thomas Haukins place that does

and his wife were removed from Swalcliffe to Stourton. The sessions quashed the order, and stated specially: That the pauper was born at Sualcliffe ; that in January, 1782, he was moved from Swalcliffe to Ascott, a large populous village, part of the parish of Whichford, and maintaining its poor in common with Whichford: Ascott did not appeal, and Sualcliffe filed the order at the Epiphany sessions, 1782, for safe custody. The pauper

order is, when

conclusive.

removal is to a

not maintain its own poor sepa. rate.

(a) See general division of the subject, ante, 705.

amended.

and his wife, coming again into Swalcliffe, and not having acquired any sub- Seventhly, sequent settlement, Swalcliffe obtained the first mentioned order, and sent Effect of an

order unapthe paupers to Stourton, where he had gained a settlement by hiring and service. It was contended, that the order of removal to Ascott being unap

pealed against. pealed from, was, as to the pauper's settlement in the parish of Whichford 1. How far it is as including Ascott, a conclusive judgment. In reply it was insisted, that final. though an order of removal unappealed from, is conclusive, when directed to a place to which a removal can legally be made, and where there is to be found some person legally authorised to appeal; yet that here were no officers to act: that to omit to do a thing which was impossible to be done, could not be conclusive upon any one: that Which ford could not, in this case, appeal; for not being parties, they were not entitled to be heard. - By Lord Mansfield, C. J. The removal to Ascott was, in truth, no removal at all; there was no reason for an appeal; it was a mere nullity. Order of sessions quashed.

Rer v. Chilverscoton, 8 T. R. 178. W. Fennel removed from Sow to Where the jusChilrerscoton. Order confirmed. Case: The pauper, in 1779, married his tices making the present wife in Bedworth, where he then resided ; they were afterwards re- diction, it is a moved to Sow, by order: “ To the church wardens, &c. of Bedworth, in the matter of subcounty of Warwick, and to the church wardens, &c. of Sow, in the county of form, and such of the city of Coventry ; whereas complaint has been made by you, the an order, al. church wardens, &c. of Bedworth, unto us whose hands and seals are here- though not apunto set, two of His Majesty's justices of the peace (whereof one is of the totally void, and quorum), for the county aforesaid ; that W'. Fennel, E. his wife, &c.”

[The cannot be other parts were regular; it was dated 16th March, 1779. No county was mentioned in the margin.] Against this order there was no appeal. In May, 1779, a certificate was granted by Sow to Bedworth, acknowledging the pauper to be settled in Sow, but, at the time of granting this certificate, no settlement had been gained in Sow, unless the above order from Bedworth to Sow had conferred one; but the pauper's settlement had always continued at Chilrerscoton. Lord Kenyon, C. J. It should appear upon the face of the order, that the justices who made it had jurisdiction; which, if they had, every fair presumption will be made that they decided rightly; but if they had not, the proceeding is a nullity. It is said, howerer, that the parish of Sow ought not to be permitted, at this distance of time, to object to the order; but there is a maxim that quod ab initio non valet tractu temporis non convalescet. And as this order was void at the time when it was made, because it does not appear that the justices who removed had any jurisdiction, it cannot have become a valid order by the time that has since elapsed. general proposition, indeed, that an order of removal unappealed against, is conclusive on the parish to which the removal is made, cannot be shaken; but it must be understood as part of that proposition, that the order is not a nullity, but was made by two justices having jurisdiction to make it. The Rex v. Stepney is, I think, decisive of the present.- Lawrence, J., expressing some doubt on the subject, the case was not then finally decided; but afterwards, Lord Kenyon, C.J., said, that after considering the cases cited, and upon the authority of Rex v. Stepney, and Rex v. Bedwin, we are of opinion that the former order was a nullity; and though it was not appealed against, it was not conclusive on the parish of Sow. Order of sessions confirmed.

A contrary opinion had been expressed, in Rex v. Stotfold, see note, infra; but Rex v. Hulcott, 6 T. R., 583, though on a different statute, confirms Rex v. Chilverscoton. (a)

(a) Rer v. Stotfold, 4 T. R. 596. not appeal. It was then proved that the M1. Shaw, and his family, were removed order of removal from Sandon to Stotfold, from Stotfold to Chilvers. Order quashed. and the examination on which it was Case: 'T'he pauper and his family were, founded, were in fact taken and signed in 1776, removed from Sandon to Stot- by the two justices separately, and not fold, and delivered to the parish officers in the presence of each other.-Lord of Stotfold, who received them, and did Kenyon, C. J., said, That he was not

order unap

1. How far it is final,

deserted and given up by consent, without

whose favour an order of removal

consent, abandon it, without wait.

sessions and another order

774

Serenthly, Rex v. Llanrhydd, Burr. S. C. 658. Two justices made an order of Effect of an removal, in May, 1768, from Llanrhydd to Ruthin, and the paupers were

delivered to the oflicers of Ruthin, who maintained them for a while; and pealed against. for some time after they were maintained at the joint expence of both

parishes. Notice of appeal being served on the officers of Llanrhydd, on

the morning of the sessions, previous to filing of the appeal, the officers of An order may be Llanrhydd consented to take the paupers back to their custody, without

giving Ruthin the trouble of appealing. Afterwards, in January, 1769,

two other justices removed the same paupers from Llanrhydd to Denbigh. appealing. And upon appeal, their settlement was found to be at Denbigh. But it ap

pearing that the former order had not been appealed against, the Court were of opinion, that the order of removal from Llanrhydd to Denbigh ought to be quashed accordingly.—Lord Mansfield, C. J. That order was made in favour of Llanrhydd; Llanrhydd gave it up, and consented to take the paupers back, without giving Ruthin the trouble of appealing against it. May not a party give up a judgment intended for his own benefit? The

order of sessions quashed. The parish in

Rex v. Inhabitants of Diddlebury, 12 East, 359. By an order of removal,

dated August 15th, 1809, Mary Davies, single woman with child, was is made, may, by removed from Much Wenlock to Diddlebury. Order confirmed. Case:

Soon after the sessions in July, 1809, two justices, by an order, removed the ing to appeal to pauper from Much Wenlock to Long Stanton ; she was conveyed by the

oflicers of Much Wenlock, and delivered, with the order, to the officers of Long made by them,

Stanton, who received her, and maintained her for five weeks. On the 15th removing the of August following, a meeting was had between the officers of Much Wenlock ferent parish, was

and Long Stanton, who, finding the account given by other witnesses was held good.

different from that given by the pauper, on whose evidence the orler of removal to Long Stanton had been made, and being of opinion that it could not, therefore, be supported, they mutually agreed to cancel that order, which they did, with the consent of the magistrates who had made it, and who, thereupon, made another order, which is the order now appealed against, and which was made before any sessions had intervened, to which any appeal against the first order could be made. There was no appeal against the order of removal to Long Stanton. When this case was called on, Le Blanc, J., said, that the point had been expressly decided in Rex v. Llanrhydd; and Lord Ellenborough, C. J., said, That the point was so clear upon principle, that it did not want any authority to support it.-Against the order, Chalbury v. Chipping Farringdon was cited; and it was urged shortly, that however an order made might be abandoned before execution, it could not afterwards; and being in the nature of a judgment executed, it could only be reversed by appeal.--Lord Ellenborough, C. J., said, There are two ways of getting rid of an order; one by the consent of the parish in whose favour it is made, to abandon it; the other, by waiting till the time of appeal, and appealing against it to the sessions, by whom it may be quashed, if not supported. Here the parish, in whose favour it was made, finding, upon further information, that they could not support it, very sensibly determined to abandon it at once, by consent, and acted accordingly.

pauper to a dif.

then prepared to state, from his papers, an order of removal at any distance of the reasons at length upon which their time, which had been acquiesced under, judgment was founded, but that he had for years, without any dispute ; and that thoroughly and attentively considered a distinction had always prevailed bethe question; and that the result of his tween void and voidable instruments ; deliberations and of the rest of the Court a strong instance of which was that on was, that the former order was only void- the construction of the stat. W'est minster able, not absolutely void; and, therefore, 2, c. 1, which, though it enacts, that that it was necessary for the parish who all fines contrary to that act shall be wished to avoid it, to have appealed ipso jure null, has been held to mean against it in a regular course of proceed. only voidable by some legal proceeding. ings. That it would be extremely in- Order of sessions confirmed. convenient to permit a parish to set aside

And what objection can there be, as Lord Mansfield observed, in the case Serenthly, mentioned, to a party's abandoning a judgment intended for his own Effect of a benefit? In the case in Salkeld, (Chalbury v. Chipping Farringdon), there was no consent of the party in whose favour the order of justices was made pealed against. to vacate. -Per Curiam. Orders confirmed.

Un

order unap

1. How far it is final.

&c.

2. Of what Facts it is conclusive when Unappealed Against. Rex v. North featherton, 1 Sess. Ca. 154. Order of removal of a man, 2. Of what facts, his wife, and four children, naming them, to Featherton, and no appeal. Afterwards Featherton found out that this woman was not the wife, for that An order of re.. the man was married before to another. And they removed the woman, by ed against, is her maiden name, to Horsington, and the four children thither as bastards. conclusive of the

facts stated in it. Horsington appealed; and the sessions stated, that this woman and the four children were the same with those removed by the first order, and quashed the second order. And by the Court. They have slipped their opportunity, and the first order, not appealed against, is conclusive.

Nympsfield v. Woodchester, 2 Stra. 1172. In 1731, a man and his wife If two be removwere removed from Nympsfield to Woodchester, and no appeal. They after

ed as man and

wife, it is concluwards returned to Nymps field, and had there three children, who were now sive of that fact sent from Nympsfield to Woodchester, together with the father. And upon upon the parish appeal as to the children, evidence was offered, that the man had a former the order be not wife, and, consequently, the children born at Nympsfield were bastards appealed against; settled there. The sessions refused to go into this evidence, being of opinion and after born that Woodchester was concluded by the first order, and that it made no dif- settlement from ference that the children were born afterwards. The Court, on debate, the father and confirmed both orders: for the marriage being established by the first order, concluded as to the settlement of the children (which is derivative) follows of course, and the fact of mar. can no way be impeached, but by entering into the merits of the first order, riage. which bath been acquiesced in. And nothing is more established, than that an order, unappealed from, is conclusive.

Same point in Rex v. Silchester, Burr. S. C. 551, where the Court were so clear in this as a settled point, that they did not hear counsel on the side of the objection.

Rex v. St. Mary, Lambeth, 6 T. R. 615. The pauper (with her three So also, it is conchildren) was removed as Elizabeth, the wife of W. Î'., from St. Mary, clusive on all deLambeth, to Huntspill. Order confirmed as to Elizabeth, but quashed as to the children. Case: The pauper, Elizabeth, in 1784, was removed from Stokeunder-Hampden, to Huntspill, with, and as the wife of a man to whom, before that time, she had been married ; which order was unappealed from. The appellants offered to give in evidence, that the pauper, Elizabeth, had been married to W. T. illegally, he then having a former wife, and which wife was still living; the children were born of the pauper, Elizabeth, during her cohabitation with W. T.; and the Court said, that Rex y. Southowram, and Rex v. Lubbenham, did not affect the authority of Rex v. Woodchester, and, in that case, it was established, that an order of removal upappealed against, is conclusive, not only on the persons removed, but also on all derivative settlements from them.

Rex v. Southouram, 1 T. R. 353. Elizabeth Booth, widow, and her Order, unappealthree children, were removed from Southouram to Northouram. The ses

ed against, is

only conclusive sions stated, that it appeared, by the evidence of William Booth, (father of as to those who Jeremiah, late husband of the pauper,) that the said William and Jeremiah are mentioned in were born and settled at Halifax, but it did not appear that J. had done it, and removed. any act to gain a settlement; that on the 6th of April, 1774, William Booth and his wife, but not any of their children, were removed from Halifax to Northouram, who received them, and did not appeal. Jeremiah, and Elizabeth the pauper, were married some years hefore the removal of William and bis wife, and had those three children; and J., from the time of his marriage until his death, lived at H., in a house he rented, independent of his father, and was not removed by, or mentioned in, the order, nor was then any part of his family.-By the Court. The order of removal, unappealed from, is conclusive as to the father and mother, but not as to the son, because he VOL. IV.

D D D

.

ments,

an

&c.

Where a pauper

as to that of her

Seventhly, is not mentioned in it, and the sessions have expressly found, that the son Effect of was settled at Halifax. Order of sessions confirmed. order unap

Rex v. Rudgeley, 8 T. R. 620. Removal of Emanuel Smith and Elizabeth peuled against.

his wife, from Acton Trussell to Rudgeley, confirmed. Case: In 1799, 2. Of what facts,

Elizabeth Smith was removed by the name and description of Elizabeth
Smith,“ widow," from St. George, Hanover-Square, to Acton Trussell ; and

against that order there was no appeal. It was said, that this was not a was removed by removal of Emanuel, nor of his wife, as the wife of Emanuel, but simply of the nagueroaneElizabeth Smith, widow, and that, therefore, Acton Trussell had no notice there was no ap- of the ground on which the order of removal would be disputed.—But peal, it was held conclusive, not

Grose, J., said, That this order was conclusive, as well as in the case of only as to her removal of one as wife ; for that this description imported, that she was settlement, but

removed to a parish where her husband had gained a settlement, at least husband's also.

it put that question in issue, and therefore it behoved the parish, to which the removal was made, to inquire how that settlement was gained. This would have been an object of inquiry on an appeal against that order ; but as that parish did not then litigate the question, the Court were bound, according to all the authorities, to determine, that the former order of removal is conclusive, and that not as to her only, but as to the husband likewise. And Lawrence, J., agreed, and also said, that the description, " widow,raised a presumption, that she was removed to the place where her husband was settled.—Le Blanc, J., was of the same opinion, and said, that the cases of Rex v. Silchester, and Rex v. St. Mary, Lambeth, shew that an order of removal, unappealed from, is conclusive, though the party be removed by a wrong addition; for, in both those cases, the woman was removed as the wife, though, in fact, she was not the wife ; yet it was holden that the parties were precluded by the orders from disputing the settlements again, upon subsequent removals. That the result of all the cases seemed to be this; an order of removal, unappealed against, is conclusive; an order of removal of a woman, though not as wife, is conclusive of the settlement of the husband, as well as the wife; and the circumstance of the party being removed, under a wrong description, does not take the case out of the general rule. Both orders quashed.

Rex v. Binegar, 7 East, 377. Order of removal of Elizabeth Savage, wife of J. S.,

otherwise Walters, by the name of E. S., single woman, from Midsomer

Norton to Binegar, affirmed. Case: In April, 1793, an order stated, “ That appealed against: John Savage, labourer, and Betty his wife, lately came into Kilmersdon, and sive of the ques.

are become chargeable ; and upon the examination of the said Betty, the wife tion of marriage. of the said John Savage, it was adjudged that J. Š., and B. his wife, uere

legally settled in Midsomer Norton.Betty was removed from K. to M.N., and no appeal. On the 20th of July, 1799, there was another order, made on the complaint of the parish of Wellow, by which it was adjudged, that the place of the lawful settlement of the said E. S. is in M. N. No appeal against this order. At Lady-day, 1803, E. S. hired herself and served a year with J. B. of Binegar. John Savage is still living. After she left this service she returned to M. N., and became chargeable to that parish. In May, 1805, J. S. was committed to the house of correction, for having run away and left E. therein, called his wife, so chargeable; after this, he was, at the sessions, convicted of having so done, and was sentenced. The marriage between J. S. and E., before either of the said orders of removal were made, was a nullity. The question was, Whether the respondents were estopped, either by the orders of removal, or by the adjudication of J. S. to be a vagrant for running away and leaving his wife, from giving evidence to prove the marriage a nullity. The second order, treating E. S. as a single woman, was laid out of the case. And also, the order of vagrancy was considered as an ex parte proceeding, and therefore not conclusive of the fact of marriage. And it was stated, that it did not appear that the parties ordered to be removed were within the jurisdiction of the removing magistrates; it only stated, that the paupers lately came into the parish of K., not that they were then in the parish at the time of the order made.-Lord Ellenborough, C. J. The order states, and the magistrates adjudge it to be true, that the paupers are likely to become chargeable to the parish, which

An order of re. moval of B., as

which was not

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