And what objection can there be, as Lord Mansfield observed, in the case mentioned, to a party's abandoning a judgment intended for his own 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 to vacate.-Per Curiam. Orders confirmed.

2. Of what Facts it is conclusive when Unappealed Against. Rex v. Northfeatherton, 1 Sess. Ca. 154. Order of removal of a man, 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 the man was married before to another. And they removed the woman, by her maiden name, to Horsington, and the four children thither as bastards. 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.

wife, it is conclu

sive of that fact upon the parish the order be not appealed against;

removed to, if

Nympsfield v. Woodchester, 2 Stra. 1172. In 1731, a man and his wife If two be remov were removed from Nympsfield to Woodchester, and no appeal. They after-ed as man and wards returned to Nympsfield, and had there three children, who were now sent from Nympsfield to Woodchester, together with the father. And upon appeal as to the children, evidence was offered, that the man had a former wife, and, consequently, the children born at Nympsfield were bastards settled there. The sessions refused to go into this evidence, being of opinion that Woodchester was concluded by the first order, and that it made no difference that the children were born afterwards. The Court, on debate, confirmed both orders: for the marriage being established by the first order, the settlement of the children (which is derivative) follows of course, and can no way be impeached, but by entering into the merits of the first order, which hath 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 children) was removed as Elizabeth, the wife of W. T., from St. Mary, Lambeth, 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 v. 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 unappealed against, is conclusive, not only on the persons removed, but also on all derivative settlements from them.

and after-born children, claiming settlement from the father and concluded as to mother, are also the fact of marriage.

so also, it is conclusive on all de

rivative settlements.

Order, unappeal

ed against, is only conclusive

Rex v. Southouram, 1 T. R. 353. Elizabeth Booth, widow, and her three children, were removed from Southowram to Northowram. The sessions 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 Northowram, who received them, and did not appeal. Jeremiah, and Elizabeth the pauper, were married some years before the removal of William and his 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

Seventhly,

Effect of an order unap

pealed against.

2. Of what facts, &c.

Where a pauper

was removed by the name of E.S.,

"widow," and

there was no ap

peal, it was held conclusive, not only as to her settlement, but as to that of her husband's also.

An order of removal of B., as wife of J. S., which was not

appealed against,

was held conclusive of the ques

tion of marriage.

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

Rex v. Rudgeley, 8 T. R. 620. Removal of Emanuel Smith and Elizabeth his wife, from Acton Trussell to Rudgeley, confirmed. Case: In 1799, 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 removal of Emanuel, nor of his wife, as the wife of Emanuel, but simply of Elizabeth Smith, widow, and that, therefore, Acton Trussell had no notice of the ground on which the order of removal would be disputed.—But Grose, J., said, That this order was conclusive, as well as in the case of removal of one as wife; for that this description imported, that she was removed to a parish where her husband had gained a settlement, at least 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, otherwise Walters, by the name of E. S., single woman, from Midsomer Norton to Binegar, affirmed. Case: In April, 1793, an order stated, “That John Savage, labourer, and Betty his wife, lately came into Kilmersdon, and are become chargeable; and upon the examination of the said Betty, the wife of the said John Savage, it was adjudged that J. Š., and B. his wife, were 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

could not be, if they were not in the parish at the time. Then it was urged, that here was no adjudication of a present settlement, only that the paupers were last legally settled in M. N.-Lord Ellenborough, C. J., said, That it referred to the time of the complaint made, and the Court could not intend an intermediate settlement between the hearing of the complaint, and the making of the order of removal. And the Court considered the first order of removal as good upon the face of it, and conclusive of the question of marriage, which was involved in the judgment of the justices. Orders quashed.

Rex v. Catterall, 6 M. & S. 83. Order of removal of W. Waring, his wife and children, from Preston to Catterall, confirmed. Case: In 1810, George W., father of the pauper, not then emancipated, gained a settlement by renting a tenement in Catterall. In 1814, he was removed, by an order, from Claughton to Inskip, which order was confirmed, the sessions not being satisfied of the value of the tenement at Catterall. When the order was made, the pauper was emancipated, but had acquired no settlement in his own right. It was insisted, that the order of removal of the father was conclusive as to the son, and that the value of the tenement at Catterall could not then be proved.-Lord Ellenborough. I own, that it appears to me, that in conformity to the rules which are applicable to judgments in other cases, we ought to quash the order of sessions. There is no doubt that the son is privy to the father's settlement; it is not pretended that he had any other at the time of the adjudication of the father's settlement, or that he acquired any subsequently to it. The question now is, Whether the son's settlement is to be governed by this adjudication, which, as it is a matter which regards the general municipal regulations of the realm, is of universal obligation and effect, unless fraud be shewn. This, then, being a fair bonâ fide adjudication. on the subject matter, is conclusive as to all the world. The pauper either derived a settlement from his father, or he did not. If not, this adjudication could not affect his settlement, but if he did, then is his settlement determined by that which has been pronounced with respect to his father, to which he is privy.—Bayley, J. The difficulty I have felt in coming to this. result, arose from the consideration lest we should thereby hold the son to be bound by an act to which he was not a party, and had no opportunity of giving an answer. But this difficulty is removed, when it is recollected, that this is not the son's appeal, and he might have appealed, if he had been prejudiced by his removal. I forbear to give any opinion as to the question, Whether it would have been conclusive against the individual, if he had appealed.-Abbott, J. It is important that this question should be settled on general principles, rather than upon nice and petty distinctions. Now the general rule is, that an order of removal, confirmed upon appeal, is conclusive as to all other parishes, as it regards the settlement thereby adjudicated: and it is immaterial, as it respects this general rule, whether the child, who derives the settlement from his father, be named in the order or not. So, I think, it has been adjudged in other cases. As, then, the adjudication, in 1814, decided that the parent's settlement was elsewhere than in Catterall, this was conclusive as to the son's settlement there, unless it could have been shewn, that the father acquired such settlement after the emancipation of the son.-Holroyd, J., referred to Rex v. St. Mary, Lambeth, and the opinions of Grose, J., and Le Blanc, J., in Rex v. Rudgely, and said, These authorities appear to me to be decisive, that the order in question, having been confirmed on appeal, is like a judgment of ouster, conclusive as to all the world, upon the point of the father's settlement, and of those deriving a settlement from him. Orders quashed.

Rex v. Knaptoft, 4 D. & R. 469; 2 B. & C. 883; 2 D. & R. Mag. Ca. 347. Order for the removal of Elizabeth Burdett, from Gumley to Knaptoft, confirmed. The case is fully stated in the judgment delivered by Bayley, J. Two questions were raised for our consideration in this case. First, Whether the prior order of removal, and the judgment of the court of quarter sessions quashing the same, were admissible in evidence in the present appeal? and second, Whether the question put to the pauper's father, and interdicted by the Court, ought to have been allowed and answered? The order of

An order of ses

sions, made in 1815. quashing an

order for the removal of the broper to the appelfant parish, and parol evidence to ground of the

ther of the pau

show that the

Seventhly, Effect of an order unappealed against.

2. Of what facts,

&c.

decision of the sessions was,

that the father of the pauper had not at that time,

parish, was received: Held,

that even if parol missible to prove the ground of the sessions, still that

evidence was ad

decision of the

the order of sessions was not

evidence that the father of the pautled in the appel

per was not set

lant parish in 1815, because the ment was a mat.

father's settle

ter that arose collaterally on the trial of the first appeal.

removal, and the judgment thereon, were tendered, for the purpose of disproving the pauper's settlement in the respondent parish: the question put to the pauper's father, he having stated that he was examined at the former appeal, was, What facts he had there stated? We, who heard this case argued, are decidedly of opinion that the prior order of removal and judgment were not, with any explanation, receivable in evidence on the second appeal. The prior order of removal was quashed. That may have been done upon any one of three grounds. Either, because the sessions were of opinion that the pauper was emancipated, and had acquired a settlement of his own; or, because the respondents were not then in a situation to prove any settlement in the father's settlement in the appellant parish; or, because the appellants the appellant were able to prove a settlement of his elsewhere. The case does not inform us on which of these grounds the order was quashed, but it is conceded that it was quashed upon the merits, and not upon any point of form. If we believed that the ground of the judgment was the want of proof of the father's settlement in the appellant parish, and had then thought that the evidence was, under those circumstances, admissible, we should have sent the case back to the sessions for further explanation on that head; but we are of opinion, that under none of the circumstances supposed, the evidence was admissible, and, therefore, we think it better to dispose of the case in its present shape. As a broad and general proposition, we may say, that the order of removal, confirmed, or reversed upon appeal, or acquiesced in without appeal, is receivable in evidence, because it is a judgment of law. But where, and under what circumstances, is it receivable? This inquiry is answered by the rule laid down by De Grey, C. J., in the Duchess of Kingston's case, by which we find that, to make the order receivable, the parties in the case must be the same, and the point in issue must be the same: these are both indispensable qualifications. If the matter in issue be collateral or incidental, the evidence cannot be received. The language of that learned judge, as applicable to the present case, is, "that a judgment directly upon the point, is, as evidence, conclusive between the same parties, upon the matter directly in question." Does this case fall within that rule? Is the matter in question in the second appeal, the same as that in the former? Is the judgment offered in evidence in the second, directly upon the point which was in issue in the former? We think not. From the very nature and substance of the order of removal, it is merely collateral to the issue raised in the second appeal. By the original order, an individual, not the pauper in this case, was removed; the question to be tried on appeal was, Where his settlement was? The judgment decided that his settlement was in a particular parish. That was the point there, and that was the matter in question; but it is not so here. The early case of Harrow v. Ryslip, will illustrate this position. The case was this: A. comes into Harrow, and being likely to become chargeable, was removed to Ryslip; Ryslip appealed, and, upon the appeal, A. was adjudged to be settled at Ryslip; afterwards Ryslip discovered that Hendon was the place of his last legal settlement, and sent him thither; and the question was, Whether, after the adjudication upon the appeal, Ryslip was not estopped against all the world, to say, that Ryslip was not the place of his last legal settlement · et per Holt, C. J.," Ryslip is estopped to say otherwise: for, if Ryslip had not been the very place of his last legal settlement, the justices must have sent him back to Harrow, who were first possessed of him, for that reason. because they were possessed of him, and he did not belong to Ryslip. And now this is, in effect, the same question again, viz. Whether he belongs to Ryslip which question has been already determined by the justices on the appeal, who have adjudged that he was last settled at Ryslip." The report goes on to say,-" Afterwards, this was moved again, and then Holt and Gould held the adjudication was final as to Ryslip, against all persons and places, because the point of his settlement as to Ryslip was tried in the appeal; but as to Harrow, (for he had been formerly removed by them to Hendon, and that order reversed), they were at liberty to send him to any other place, and were not estopped; because the justices, on the appeal, did not adjudge him to be settled at Harrow, though they adjudged him now to

be settled at Ryslip; so that the other point was not tried." The language of the Court, in one part of this case, applies to the instance where the order of removal is confirmed, and that on the other, where it is reversed; and points out the distinction, already alluded to, between a judgment of confirmation and one of reversal. In the latter instance, the sessions do not find where the pauper is settled, and thus, the order of removal, confirmed, or unappealed from, is conclusive evidence, that the settlement is in the place to which he is removed; reversed, it is conclusive evidence, that the settlement is not there; and beyond this point, no case, with which we are acquainted, has ever yet gone. There are, undoubtedly, cases which shew, that where the point in issue is decided, all results flowing out of that point are decided also; as, for instance, that a wife's removal to the place of her husband's settlement, is conclusive to shew that that is his place of settlement. But no case has ever gone further than to hold, that the point decided is conclusive upon the same point, and, therefore, receivable in evidence; other points, collateral or incidental to the point decided, and undetermined by it, are excluded from its operation, and cannot be proved by giving the point decided in evidence. It is the same with respect to judgments; they are merely evidence of the point decided. It is admitted, that the pauper has no settlement in the parish to which he has been removed, unless his father has acquired a settlement there. Then the father's settlement was a question which came in incidentally, but incidentally only, and was not the point decided by the judgment in the first appeal, which, consequently, was not admissible as evidence in the second. For these reasons, we are of opinion, that the order of sessions in this case was right, that the sessions properly rejected the evidence tendered, and that the rule for quashing their order must be discharged. Order of sessions confirmed.

Rex v. Kenilworth, 2 T. R. 598. Thomas Byfield, his wife and children, were removed from Birmingham to Kenilworth. Order confirmed. Case: The pauper, on the 10th May, 1765, hired for a year to J. Chatterton, of Birmingham, and that day entered into his service, and continued in the same until 1st of April, 1766, when he was taken up on a charge of bastardy, and married the next day. His master did not make any complaint against him, nor discharge him from his service. On the 3rd of April, he was removed from Birmingham to Kenilworth, where he remained until the 7th of April, and then returned back to Birmingham, into his master's service, who willingly received him again, and he continued in his service till the end of the year, and received his full year's wages. The order of removal was not appealed against.-Buller, J. There is no proposition in the law of settlements more clear than this, that an order of removal, unappealed against, is conclusive against all the world; and this is so clearly and universally established, that it ought never to be impeached. At the same time, the rule is, that the order of removal, though unappealed from, does not at all affect a subsequent settlement. After the order of removal, unappealed from, the pauper could not legally return to the parish from whence he had been removed: it would have been a crime in him to do so: and if he could not return without committing a crime, he could not be liable to an action by the master for not completing his contract. If the law intervenes and disables a person from completing his contract, it puts an end to the contract: In this case the pauper returned after the order of removal to the parish of B. where he served a month; but that could not gain him a settlement there, for the act subsequent to the order of removal, by which he was to gain a settlement, should be complete in itself.-Grose, J. I doubt whether the party was liable to be removed, but there having been an order of removal, unappealed from, it is decisive. Order confirmed.

Rex v. Corsham, 11 East, 388. The pauper was removed from East Moulsey to Corsham; and it was confirmed by the sessions, who stated, that on the 9th of April, 1807, he had been removed from Charlton to Garsdon, and no appeal had been entered against that order; which removal was subsequent to a settlement he had gained in Corsham.-Lord Ellenborough. If the pauper were settled at Garsdon, at the time the former order was