Seventhly, Effect of an order unap pealed against. 2. Of what facts, &c. made, could not Corsham, as well as all other parishes, have taken advantage of that upon a question of settlement? Now the order of removal submitted to, is the most authentic proof of his settlement being there at the time the order was made, and we must intend every thing in support of that settlement so adjudged. It is, in effect, a statutable certificate, if I may so express myself, that the pauper was then settled at Garsdon. The statute gives him a settlement there; and the fact stated by the sessions of a prior settlement in Corsham is immaterial.-Le Blanc, J. If the former order were not conclusive as to the settlement being in Garsdon at the time, Garsdon would escape the effect of it altogether, for this order would be conclusive upon Corsham, so as to prevent Corsham removing to Garsdon. Order quashed. Eighthly, Effect of con firming or quashing orders of removal, &c. Order confirmed upon the appeal is final; but an order discharged binds only the parties. An order of re moval confirmed, is conclusive of settlement. (Eighthly)—Effect of Confirming or Quashing Orders of Removal Appealed Against. If a person has an inchoate right of settlement in the parish removing him (ex. gra. as being entitled, when so removed, to administration of an estate in the parish,) which he afterwards perfects (by obtaining a grant of administration) before the appeal against the order of removal is heard, this does not authorise the sessions to quash such order. The proper course, in such case, is to remove him back by a new order. Rex v. Widworthy, Andr. 4, (ante, 597.) Mynton v. Stoney Stratford, 2 Salk. 527.-By Holt, C. J., and the Court. If on appeal to the sessions an order be discharged, that judgment binds only between the parties: but when, upon appeal, an order is confirmed, that is conclusive to all persons as well as to the parties, for it is an adjudication that this is the place of the party's last legal settlement, which cannot be avoided by the parish against whom it is made. Little Bitham v. Somerby, 1 Stra. 232. A person is sent by an order to Somerby, as the place of his last legal settlement. Somerby appeals, and the order is confirmed. Soon after, without stating that he had gained any new settlement, Somerby sends him to a third place.-By the Court. An order of reversal is final only between the two parishes; but if it be confirmed, it is final as to all the world; and, therefore, no new settlement appearing, the order of removal from Somerby must be quashed. Harrow v. Ryslip, 2 Salk. 524 ; 3 Salk. 261. A person comes into Harrow, and was removed to Ryslip. Ryslip appealed. Order confirmed. the then place of Afterwards Ryslip discovered that Hendon was the place of his 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 settlement? By 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, namely, 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. Now this point being determined, the appeal must be final and conclusive, otherwise there would be no end of things. Order quashed, conclusive only between the parties. But it is conclu. sive as between them. St. Michael's, Bedington, v. Kingston Bowsey, 2 Salk. 486. Order reversed on the appeal is conclusive only as to the parish acquitted, but the first parish may remove again to any parish not party to the former removal. Foston v. Carleton, 1 Str. 567. A person was removed from Foston to Carleton. On appeal, the order is quashed; and at three months' end a new order is made to remove him from Foston to Carleton.-But by the Court. The last order must be quashed. Barrow v. Ingoldsby, E., 11 Anne, was at the distance of nine months, but the Court quashed it, because there could be no inconvenience in putting them to shew a new settlement. Eighthly, Effect of confirming or quashing orders Rex v. Bradenham, Burr. S. C. 394; 2 Bott, 918. Order of removal, dated December 30, 1754, of John Saunders, and Sarah, his wife, and four children, from Thame to Bradenham. Bradenham appealed to the next (Epiphany) sesions, and the order was discharged. March 28, 1755, a new order was made for removing Sarah, the wife of J. S., and of removal, &c. her children, from Thame to Bradenham. Upon appeal, the sessions same point. adjudge the last settlement of Sarah Saunders and her children to be in Bradenham, and confirm the order. On removal of these four orders into the King's Bench, it was argued, that the order of reversal was conclusive between the two parishes, that so there might be an end of things; and that one sessions shall not counteract and control the acts of a former, unless they state specially, which they have not done here.-By the Court. The last orders must be quashed. We must take the appeal, on which the original order is discharged, to be on the merits. The matter has been determined already, between these two parishes, and it must be conclusive. But it is said, there are cases where there may be a new removal, as supposing there had been one or two years' distance between the two orders of removal, or a sufficient time to gain a new settlement; yet the Court will not intend one gained, unless it is stated in the order. And in this case there is no such time. Rex v. Osgathorpe, 2 Stra. 1256. A person was removed, by an order, from Diseworth to Osgathorpe; which was quashed. He was, by a second order, sent from Diseworth to Osgathorpe as a certificated man; and, upon an appeal, it was stated, that the first removal was before he became chargeable, and the second after he became so; and the sessions were of opinion, that the first determination was not final, and therefore confirmed the second order. It was moved to quash these two last orders, because a reversal is final between the parties.-But by the Court. So it would be if the special matter did not appear; a certificated person cannot be sent back, until he is actually a charge; a removal before is premature. The conse quence of which, only is, that he must be suffered to remain till he doth become chargeable, but not to make a premature removal final for ever. The last orders must be confirmed. Rex v. Wheelock, 5 B. & C. 511. This was an application for a mandamus, to direct the sessions to make a special entry that an order had been quashed for want of proof of chargeability, which, though the fact, the sessions had refused to do. A rule nisi was refused, Bayley, J., saying, The respondents are not, at all events, concluded by the judgment of the sessions, but may, in the trial of another appeal against another order of removal of the same party, explain, by evidence, to the sessions, the particular ground on which the former order of removal was quashed.-Holroyd, J., concurred. Rex v. St. Andrew, Holborn, 6 T. R. 613. M. Carter and her illegitimate son were removed from St. Andrew, Holborn, to Northaw. Case: By an order, dated 24th July, 1794, M. Carter removed to Northaw. On appeal, the order, for want of a proper adjudication of the last legal settlement of the pauper, which was apparent on the face of it, was quashed. On the 25th of Jannary, 1795, the present order was made, whereby M. Carter and her son were again removed from St. Andrew, Holborn, to Northaw. Upon appeal, the sessions were of opinion, that the first warrant and judgment, having been quashed, was binding between the two parishes. The last order quashed.-Lord Kenyon, C. J., said, that as the first order in this case was quashed for defect of form, which appeared by the minute of the sessions, it was essentially different from the cases cited, where the order was quashed generally, which must be taken to be on the merits. And it is undoubtedly law, that if an order of removal be quashed for form, it does not conclude the parties. Order of sessions quashed. Rex v. Cirencester, Burr. S. C. 17; 2 Bott, 521. The pauper was removed from Minety to Coln, St. Aldwin's; and, on appeal, the order was reversed. Afterwards, he was removed from Cirencester to Coln St. Aldwin's. The former removal was on complaint of Minety; the latter on complaint of Cirencester: the pauper was sent on both complaints to Coln St. Aldwin's. On appeal against this latter order, the sessions quashed the But special matter may be set sions upon the second appeal, forth by the ses which may prevent the first order from being final. Appellant may show, by order, the ground upon which the former order was quash ed. If quashed on form, not concluparties. sive between the Order quashed is not conclusive, except between the parties, that the pauper was not then settled parish. in the appellant Eighthly, Effect of confirming or quashing orders of removal, &c. An order of removal discharged, does not prevent a third parish from shewing a settlement in the same parish, gained subsequently to that same, because they thought the first order conclusive.-By the Court. An order confirmed binds all the world; but when discharged, it is binding only between the parties concerned. For the discharge of the order doth not determine where the pauper is settled; but only, that he is not sufficiently proved to be settled in the particular parish to which the justices had removed him.-And Lord Hardwicke, 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 removed from Baxterley to Stourbridge; which order, on appeal, was discharged. Then Baxterley removed to Bentley, and Bentley, upon appeal, offered to give evidence, that the pauper had gained a settlement at Stourbridge, subsequent to the settlement which they acknowledged he had gained in Bentley: The sessions refused to hear it, because the settlement set in question, when up in Stourbridge was anterior to the first appeal. By Lord Mansfield, C. J., the order was discharged. Ninthly, Of amendments by sessions. 5 Geo. 2, c. 19, s. 1. Defects of form to be amended. The omission of a complaint, and of adjudication of chargeability, is not a matter of form that can be amended. and the Court. An order confirmed, concludes all the world. It is a suit 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 the 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. (Ninthly)—Of Amendments by Sessions. The following cases will shew the construction put upon the enactments which give the sessions authority to decide appeals upon their merits, notwithstanding 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. Rex v. Great Bedwin, 2 Sess. Ca. 142; 2 Stra. 1158. Order of removal of a certificated person, in which there was no complaint nor adjudication of chargeability. On appeal, the sessions amend the order in these particulars, as matter of form only, and insert such complaint and adjudication. And 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 Ninthly, Of amendments by sessions. diction of the justices. remove; and a certificated person must be adjudged to be actually chargeable, otherwise he cannot be removed: and these amendments might be the real merits on which this case' depended. And it would be a detrimental 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. Chilverscoton, 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 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, had, 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. alter the word Rex v. Amlwch, 4 B. & C. 757; 6 D. & R. 627i; 3 D. & R. Mag. Ca. 303. The sessions may (See ante, 641). It was part of this case that in April, 1824, overseers were 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 5 Geo. II. c. 19, the sessions had the power to make this amendment. This order was directed to the churchwardens and overseers of the parish, and the fact was, there were no churchwardens 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. (Tenthly)-Power of Sessions in Orders of Removal. 1. Of their Judgments upon Orders of Removal. 2. Of Special Cases thereon. 3. Of Costs and Maintenance. It is important that the sessions should bear in mind, in adjudicating upon Tenthly, Power of sessions in orders of removal. Tenthly, Power of sessions in orders of removal. 1. Of their judgment. The sessions can. not make an original order of removal. Must either quash or affirm. The sessions cannot order the pauper to be returned to the appellant parish. An order may be good in part. The sessions may alter an order made at same sessions. Where justices are divided. The sessions, vided upon the merits of an appeal, quashed it: Held, that a manlie to rehear it. orders of removal, that the justices by whom the order is made, and also those who are rated, or rateable in either of the contending parishes, or whose interests may be affected by the judgment, have no right to vote upon the determination of an appeal, Rex v. Yarpole, 4 T. R. 71. Rex v. Gudridge, 8 B. & C. 459, (post, 785). 1. Of their Judgment upon Orders of Removal. 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 sessions ordered the order of removal from Oswell to Woking to be superseded, and that the person should be removed to " Woking aforesaid." And it seems that the Court were of opinion that the sessions could not supersede, 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 make a new order; and also, that because an order might be good in part, and bad in part; the first part was confirmed and the latter quashed. St. Andrew's, Holborn, v. St. Clement's Danes, 2 Salk. 494; 2 Bott, 929. 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. Rex v. J. Westmoreland, 2 Sess. Ca. 193; 2 Bott, 931. Appeal to the sessions, at which only four justices were present, who were equally divided: so no determination was made, nor the appeal adjourned. A mandamus 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.] Rex v. J. Monmouthshire, 4 B. & C. 844; 7 D. & R. 334; 3 D. & R. being equally di- 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 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 |