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An order of re
settlement in the
Lighthly, same, because they thought the first order conclusive. By the Court. An Effect of con- order confirmed binds all the world; but when discharged, it is binding only firming or
between the parties concerned. For the discharge of the order doth not quashing orders determine where the pauper is settled; but only, that he is not sufficiently of removal, de. proved to be settled in the particular parish to which the justices had re
moved him.—And Lord Hardricke, C. J., said, He took it to be clearly settled, where an order of removal is confirmed, that it is conclusive to all the world; where it is discharged, that it is conclusive only between the two contending parishes. And this distinction is reasonable; because a third parish may be able to give better evidence than the other could. And this latter order of sessions was quashed.
Rex v. Bentley, Burr. S. C. 425 ; 2 Bott, 919. The pauper was first removal discharged, does not prevent
moved from Batterley to Stourbridge ; which order, on appeal, was disa third parish
charged. Then Bacterley removed to Bentley, and Bentley, upon appeal, from shewing a
offered to give evidence, that the pauper had gained a settlement at Stoursame parish, bridge, subsequent to the settlement which they acknowledged he had gained subse.
gained in Beniley : The sessions refused to hear it, because the settlement set quently to that in question, when up in Stourbridge was anterior to the first appeal.' By Lord Mansfield, C. J.,
and the Court. An order confirmed, concludes all the world. It is a suit discharged.
instituted and determined by a Court, having proper jurisdiction between all proper parties. For the parishes and the pauper were the only proper parties. It is establishing one certain fact, which, when ascertained, regards all the world, and is not to be considered in the light of a res inter alios acta. So the finding that such-a-one was the father of such a child, or the fact of a marriage, or that a person is executor, by suit properly instituted in the spiritual court; in all these cases, when ihe fact is once established by proper judges, and between proper parties, it is a truth which regards the whole world. But an order discharged, is only a kind of negative finding, that such a settlement is not the last legal settlement. But does this establish the affirmative, namely, What is so ? There is all the reason in the world to let in a third parish, not party to the suit, to give what evidence they can; because it would otherwise open a door to much collusion between parishes. The sessions in substance have said no more than this, “ Upon the case made out to us, the pauper is not settled at Stourbridge," but this ought not to conclude the third parish from giving what evidence they can, to discharge themselves. And nothing is more common in settlement cases, than for one parish to be able to get at evidence, which another parish could not produce. And the orders were quashed.
the order was
5 Geo. 2, c. 19,
(Ninthly)-Of amendments by Sessions. Ninthly, Of
The following cases will shew the construction put upon the enactments amendments by which give the sessions authority to decide appeals upon their merits, notsessions. withstanding defects of form.
The 13 & 14 Car. II. c. 12, s. 2, declares, that the justices upon the appeal shall do justice between the parties, according to the merits of their cause.
And the 5 Geo. II. c. 19, s. 1, provides, that on all appeals to the sessions against the judgments or orders of any justices of the peace, the justices there shall cause defects of form therein to be rectified, without costs, and after such amendment shall proceed to examine, and consider the truths and
merits of the cause. The omission of Rex v. Great Beduin, 2 Sess. Ca. 142; 2 Stra. 1158. Order of removal a complaint, and of a certificated person, in which there was no complaint nor adjudication of chargeability, is chargeability. On appeal, the sessions amend the order in these particulars,
as matter of form only, and insert such complaint and adjudication. And form that can be ameuded.
now the question was, Whether these amendments went only to form or substance ?-By Lee, C. J.: There has been but one case in this Court on this act since the making of it, and that was not determined. The present seems to be a very strong case against the power of amending. For there must be a complaint from the overseers, otherwise, the justices have no power to
not a matter of
diction of the
remove; and a certificated person must be adjudged to be actually charge- Ninthly, Of able, otherwise he cannot be removed : and these amendments might be the amendments by real merits on which this case' depended. And it would be a detrimental sessions. construction of the act, to take it so largely; and would be giving the sessions an original jurisdiction. And quashed by the whole Court.
Rex v. Chilrerscoton, 8 T. R. 178, (ante 773). The two parishes were in Nor of the jurisdifferent counties, and no county mentioned in the margin. The justices
justices. were described as justices of the county aforesaid.—Lord Kenyon, č. J. It is now too late to discuss one of the points made at the bar, namely, whether or not the sessions could amend in this case, it having been decided, in Rex v. Great Bedwin, that the sessions can only amend mere defects or wants of form. I verily believe, that if the legislature had been asked what was their intention when they passed stat. 5 Geo. II. c. 19, they would have said they meant, that if, upon inquiry, it appeared that the pauper had been removed to his proper parish, the sessions would have power to correct all defects in the order: but the decision to which I before alluded was made ten years after the passing of the act, and at a time when Lord C. J. Lee, who was peculiarly conversant in sessions' law, presided here. And though I lament that that decision was made, because it renders the statute of little avail, yet it has been acted upon ever since, and it is important to adhere to determinations respecting settlements.
Rex v. Moor Critchell, 2 East, 66, (ante 740).—Lord Kenyon, C. J., said, that it was to be lamented, that the 5 Geo. II. c. 19, which was intended to give the justices in sessions a power of amending orders of removal, which were defective in point of form, bad, by the construction which had been put upon it, been rendered a dead letter, as all defects of this sort had been considered to be matters of substance, and not of form.
Rex v. Amlwch, 4 B. & C. 757; 6 D. f. R. 627; 3 D. f. R. Mag. Ca. 303. The sessions may (See ante, 641). It was part of this case that in April, 1824, overseers were
“ parish" to appointed for the parish of Llanerchymedd. The order of removal was directed to the churchwardens and overseers of the parish of Llanerchymedd. To this it was objected, that Llanerchymedd was not a parish. The court of great sessions directed the order to be amended, in this respect, and the appellants denied their right to do so, which forms the first point in this case. if they had that power, the case stands as if the removal had been to the parish or vill of Llanerchymedd.-Bayley, J. I am of opinion, that giving a fair construction to Geo. II. c. 19, the sessions had the power to make this amendment. This order was directed to the church wardens and overseers of the parish, and the fact was, there were no church wardens of L., and it was not a parish but a vill. The persons for whom the order was intended, received it, for they appealed against it, by the description given to them in the order. Upon the appeal they said, that L. was not a parish, but an extra-parochial vill, or, in other words, they pleaded misnomer; that was a mere matter of form. The Rex v. Great Bedwin, is very distinguishable, because, in that case, there was no complaint, nor any adjudication of chargeability ; there were material facts and essential parts of the order, for the justices had no power to remove, unless there was a complaint from the overseers; and a certificated person could not be removed, unless he was adjudged to be actually chargeable.—Holroyd, J. It was material, in point of substance, that the order should be directed to a district, the inhabitants of which were bound by law to maintain their own poor.
alter the word
Tenthly)- Power of Sessions in Orders of Removal.
1. Of their Judgments upon Orders of Removal.
3. Of Costs and Maintenance.
of sessions in orders of re
Tenthly, Power orders of removal, that the justices by whom the order is made, and also of sessions in those who are rated, or rateable in either of the contending parishes, or orders of re. whose interests may be affected by the judgment, have no right to vote upon moral.
the determination of an appeal, Rex v. Yarpole, 4 T. R. 71. Rex v. Gudridge, 8 B. f. C. 459, (post, 785).
The sessions can. not order the pauper to be returned to the ap
alter an order made at same sessions,
1. Of their Judgment upon Orders of Removal. 1. Of their judg- Rex v. Bond, 2 Show. 503; 2 Bott, 922. The court of quarter sessions
cannot make an original order of removal.
Rex v. Oswell and Woking, E., 8 W. III; 2 Salk. 472; 2 Bott, 926. The original order of sessions ordered the order of removal from Oswell to Woking to be super
seded, and that the person should be removed to “ Woking aforesaid.” And Must either it seems that the Court were of opinion that the sessions could not supersede, quash or affirm.
though they might repeal an order of removal.
Rex v. Milverton, 2 Bott, 928. The sessions ordered that the order should be quashed, and the party sent to the parish from whence he was removed.
And it was held, that they had only power to affirm or quash, but not to pellant parish. make a new order; and also, that because an order might be good in part, An order may be and bad in part; the first part was confirmed and the latter quashed. good in part.
St. Andrew's, Holborn, v. St. Clement's Danes, 2 Salk. 494 ; 2 Bott, 929. The sessions may The sessions made an order, and afterwards, at the same sessions, vacated it.
Both orders were returned upon a certiorari ; and by Holt, C. J. You should not have returned the vacated order, but only the latter. There ought not to be two different judgments. The sessions is all one day, and
the justices may alter their judgment at any time while it continues. Where justices Rex v. J. Westmoreland, 2 Sess. Ca. 193; 2 Bott, 931. Appeal to the are divided,
sessions, at which only four justices were present, who were equally divided: so no determination was made, nor the appeal adjourned. A inandamus was directed to all the justices of the county in general, to proceed on the appeal. It was returned, that at such a sessions an appeal was lodged, and that four justices only attended, two whereof were interested in the question, and the other two were divided in opinion. It was agreed, on all hands, that this return was not to be supported. It was objected, that the mandamus ought to be quashed, because it doth not appear that the appeal was before them; and that, for aught appears, the mandamus requires the justices to do an impossible thing, viz. to proceed on an appeal not before them, since the appeal, being lodged at a former sessions, was not continued over to the subsequent sessions, and therefore was, by law, gone. On the other side it was said, that it was not usual, in such cases, to return the continuances; but that if, in fact, there was no such continuance, the fault was in the justices, who ought to have adjourned the appeal, till, by the coming of more justices, the matter might have been determined.—Lord Hardwicke, C. J. The question is, Whether there is a possibility of the justices' proceeding in this appeal? He thought if there was not, as there would be a failure of justice in this respect, an information ought to go against the justices who were at the sessions.
[Note.—The C. J. advised the proceeding on the appeal, or returning the continuances, and seemed inclined to grant a peremptory mandamus if they
did not do so.] The sessions, Rex v. J. Monmouthshire, 4 B. & C. 844; 7 D. & R. 334; 3 D. & R. being equally divided upon the
Mag. Ca. 410. Upon an appeal against an order of removal, it appears,
that the justices were divided in opinion as to the settlement; but thinking peal, quashed it: Held, that a man.
that the respondents ought to have proved the forty days' residence, and had damus would not not, they determined, without any division, to quash the order. It was
urged, that whether the decision was right or wrong, the K. B. ought not to interfere by mandamus; and it was also urged, that the decision of the sessions was right; and although it is true, that in Nolan's Poor Laws, (2 v. 446,) it is said, “ that if the magistrates, who have a right to join in the Court's determination, should be equally divided in opinion, no judgment can be given, but the appeal must be adjourned from sessions to sessions, until a majority concur.” And in the note: “This seems to be
merits of an ap
lie to rehear it.
their bounden duty: for, otherwise, the Court will grant a mandamus to com- Tenthly, Power pel them to enter continuances, and hear the appeal at a subsequent of' sessions in sessions.” Bodmin v. Warlingen, 2 Bott, 733; and Rex v. J. Westmore
orders of re
moval. land, 2 Bott, 734, are cited in support of, but do not support these positions. In the former case, the justices neither made any order, nor adjourned the 1. or their judgappeal; and at the following sessions the order of removal was quashed, ment, &c. and this Court quashed that order of session, because it was made without an adjournment. In the other case, the justices neither gave judgment, nor adjourned, and on an application for a mandamus, though the Court entertained an opinion in its favour, nothing was done : but if a mandamus had been granted, that would only shew that the Court will compel the sessions to proceed to judgment, on an appeal which they have begun to hear, and improperly refused to go on with. It was also urged, that this was not like an appeal to the House of Lords, where, if the house be equally divided, the respondent prevails, for the presumption is in favour of the respondents, who have the judgment of the Court below. But that an appeal against an order of removal is, in reality, an original proceeding. Contra, it was argued in Bodmin v. Warlingen. The Court said, that where the justices were equally divided, that was a sufficient warrant for the clerk of the peace to have entered an adjournment, and it was his duty so to have done.
- Abbott, C. J. I think the rule for a mandamus ought to be discharged. It appears, that, in this case, the sessions have given their judgment. This Court is not a court of error from that Court; it may compel the sessions to proceed to hear and decide the appeal : but when they have so determined it, this Court cannot compel them to correct their judgment, if it appear to be erroneous. It is unnecessary to say, whether the judgment pronounced by the sessions is erroneous, because we are of opinion, that if it were so, we have no authority to compel them to correct it.
Rex v. Gudrige, 5 B. & C. 459; 8 D. f. R. 217; 4 D. & R. Mag. Ca. 35. Magistrates canA writ of certiorari issued under these circumstances. Upon an appeal peals where they against the accounts of the overseers, the order for allowance was quashed. are interested. The respondents applied for a case, but a majority of justices, then present, refused it. After some of them had left the court, a case was again applied for; and three voted for, and two against it. One of the three was a rated inhabitant of the respondent parish, and had not voted on the decision of the appeal. The case was afterwards drawn, without the concurrence of the appellant.-Abbott, C. J. We think it the safer course to hold, that magistrates should not interfere in cases where they are interested; and that the rule for quashing the certiorari (quia improvide emanavit) must be made absolute.
Rex v. J. Monmouthshire, 8 B. f. C. 137; reported as Rer v. Uske, 2 M. By the vote of an & R. 173. Application for a certiorari to bring up an order of removal, the Court were and an order of sessions for adjourning the appeal against the said order, equally divided, that the same might be quashed. It appeared that four justices were present and an adjouro at the appeal. One of them was the removing justice, and rated to the ed. Assuming poor of Uske, (the respondent parish). He, and one other justice, voted for this to be wrong, the respondents, and the other two for the appellants. The chairman announced that the Court was divided. The appellants then moved to quash the order, because the respondents had not made out their case. But the Court adjourned the appeal.—Lord Tenterden, C. J. This rule must be discharged; but I wish to have it clearly understood that, in doing so, we do not, in any degree, intend to sanction a magistrate's voting in any case in which he is interested. It is contended that, though the justices were divided in point of fact, that in point of law the vote given by the party interested was a nullity, and that the sessions ought to have quashed the order. The late decisions establish, that we cannot assume to ourselves the jurisdiction of a court of error, and revise the judgment of the sessions. It is said, that the sessions had not jurisdiction to make the adjournment. It is clear, that they had jurisdiction to make any order concerning the appeal; and, among others, the order that the hearing should be adjoumed. In Rex v. Gudridge the rule, which had been obtained, was not to review the order of
K. B. cannot review it.
votes, the Court of K. B. refused to interfere,
Tenthly, Power the sessions, but to quash the certiorari, quia improvide emanarit. The of sessions in question before the Court was, Whether that writ ought to have been allowed orders of re
to issue to remove an order of sessions, made under circumstances similar
to those in this case? And the Court thought that the certiorari ought not 1. Of their judg
to have issued. Here a judgment has been pronounced by the sessions, ment, &c. relating to a matter over which the Court had jurisdiction; and assuming
their judgment to be erroneous, I think we have not jurisdiction, as a court
of error, to review it. Where judgment
Rex v. J. Leicestershire, 1 M. f. $. 442. This was an appeal against an was entered by mistake, on a
order of two justices, for the removal of William Clifton from Market miscalculation of Harborough to Biddenham, which came on to be heard at the Emphany
sessions, when the chairman pronounced the judgment of the court, for confirming the order; but one of the justices who made the order, being present at the hearing of the appeal, inquired of the clerk of the peace, whether he was not one of the justices making the order; and being answered in the affirmative, observed that, it being contrary to a rule of that court, for justices who had made orders of removal to vote on the hearing of any appeal thereon, his vote, in this case, must consequently be withdrawn; and therefore, judgment must be for quashing, instead of confirming the order, as by taking away his vote, the majority would be against confirming, and for quashing the same.
The clerk of the peace thereupon entered the judgment of the court for quashing, without perceiving at the time, that, by withdrawing the vote of the said justice, the votes of the remaining justices would be equal; whereon, by the rules of the court, an adjournment of the appeal should have been entered, instead of a judgment to quash the order. Under these circumstances, a rule nisi was obtained for a mandamus to the justices, to enter continuances on the said appeal, to the next general quarter sessions, and then to hear and determine the same.—Lord Ellenborough, C. J. If any error was made in the entry of the clerk of the peace, that error should have been pointed out at the sessions, while the court was sitting, and competent to reform its own errors, and to draw out a more correct judgment. If no judgment had been pronounced, the court might have interposed; but here there is a judgment. The party who would have corrected the error, should have applied to the proper forum, and in due time; and if it haul been found that the numbers were equal, nothing would have been done upon it; for it would have been a nullity : but here no step of that sort was taken, but judgment was entered ; and this Court cannot, in order to supply a remedy, exercise a jurisdiction which does not belong to them.—Grose, j. This Court ought not to countenance such an application, inasmuch as the error should have been noticed at the time.-Bayley, J. Except in matters of a criminal nature we cannot look dehors the record. This Court cannot sit as upon a scrutiny before an election committee. In Bodmin v. Warligen, (2 Bott, 982,) the objection appeared upon the entry of record, made by the clerk of the peace. Rule discharged.
In Battersea v. Westham, 2 Bott, 930. The sessions may confirm an order, made at the same which they had previously, at the same sessions, quashed. sessions.
Rex v. Cuckfield, 2 Bott, 925. The sessions cannot make an order of But one sessions review, and quash an order of sessions made at the preceding sessions. cannot quash the
2. Of Special Cases. 2. Of special Whenever the sessions entertain a doubt upon the law, as applicable to
the facts disclosed upon the hearing of an appeal, they are in the practice of authorising the party against whom they decide, to have their judgment reviewed by the Court of King's Bench. This is called granting a special
The sessions, however, are not bound to this course, whenever they are pressed to adopt it by the counsel for the defeated party, but may exercise their discretion; and where they have no doubt in their own minds, they ought to refuse, in order to save the parties from further expensive litigation. Rex v. Darley Abbey, 14 East, 285. On the other hand, Lord Harduicke said, that if the justices will not state the facts specially, though requested to do
Sessions may alter an order
order of a former sessions.