intention to dispute in the ecclesiastical court was denied; but, in the first place, this was a customary rate, over which the Ecclesiastical Court had no jurisdiction; and next, the contention of the plaintiff was, that the alleged rate was no rate at all, which question could not be decided by the ecclesiastical court. (The argument on the other points is omitted, as the judgment was upon the single point of notice.)

Cowling, contrà.-The question is, whether the justices were not justified in drawing the conclusion they did. The party summoned ought to specify the objection to the rate clearly. A general indiscriminate objection to all churchrates will not suffice, or an absurd and groundless reason. This is the result of the cases. Thus, in Rex v. The Chapelwardens of Milnrow (5 M. & S. 253), Lord Ellenborough says: "The only question that remains is whether what passed before the magistrates was a sufficient notice of the party's intention to dispute the rate. To be sure, this part of the case makes the statute liable to great uncertainty in its application. And perhaps, if a person was merely to say before the justices that he disputed the rate, it would not be sufficient, inasmuch as he ought to shew something to manifest that he disputed it bond fide. But here the party says, in effect, I dispute the validity of the rate,' and not only so, but he gives his reason for it, which may perhaps be a bad one, 'because he had no claim to a seat in the chapel: nevertheless the reason, however disputable its efficacy may be, was grounded upon a matter which might be litigated in the proper forum." And so Mr. Justice Bayley, in the same case, says: "The legislature never intended to deprive the party of his right to have the validity of the rate questioned in the proper forum. The enacting clause provides that a justice of the peace may issue his warrant, if the validity of the rate has not been questioned in any ecclesiastical court: therefore, if it has been questioned by libel, appeal, or otherwise, in which the parties are actors, there the justice cannot interfere, his jurisdiction is stopped in limine. But supposing the justice entitled to issue his summons, still it was not intended to deprive the party of his right to have the validity of the rate, or his liability, questioned in the proper forum; and therefore, at the hearing before the magistrates, he may insist on this right, and give notice that he means to dispute the validity in the ecclesiastical court." If, therefore, it is shewn that it will be disputed in the ecclesiastical court, then the jurisdiction is no doubt ousted. But here it was clear that such a mode of disputing it was out of the question; and if the churchwardens had sued in the ecclesiastical court, Mr. Dale would not have appeared, and it would have been useless to go there. [PATTESON, J.-Does it not appear to be intended to dispute it in the common-law courts?] In Rex v. Wriotthesley (1 B. & Ad. 648), the facts as to disputing the rate were stronger, for a caveat had been entered; but the justices were not deprived of jurisdiction. It is equivalent to an admission that there is no defence in the ecclesiastical court. In Reg. v. St. Clements (12 A. & E. 177), it was held that the justices had jurisdiction under this statute, although proceedings had been taken in the ecclesiastical court, as they had afterwards been abandoned. [ERLE, J.-He did not mean that he should let judgment go by default, but that he should take it away from that court by proceedings here as by prohibition.] If the meaning be ambiguous, the justices acted rightly, and their error might have been corrected by appeal. Unless the Court are prepared to say that a verdict for the justices would have been perverse, they ought to find in their favour upon the case as it stands.

LORD DENMAN, C. J.-It is not at all impossible the legislature may have intended to have given jurisdiction under 53 Geo. 3, c. 127, in all cases where there was no intention to dispute the rate in the ecclesiastical court, but they

have not said so. The rate may be disputed within the words of the statute by proceedings here, and where prohibition would lie, it would be the proper course. It is clear that the words are not confined to a dispute in the ecclesiastical court, and it would be extending the statute very much to give the justices jurisdiction in such a case. The question as to a rate by a minority was very much open to doubt at this time, and here it is manifest there was an intention to dispute the rate, and the justices were sufficiently informed of it; and therefore their proceedings were without jurisdiction, and the distress under their warrant bad.

PATTESON, J.-It is a mere question of fact upon all the evidence, whether the plaintiff did dispute the rate and give notice thereof to the justices and taking the whole of the answer, together with the written notice put in, there cannot, I think, be a doubt of the intention, and that notice was given.

WIGHTMAN, J.-There is a distinction between the notice here, and a mere vague and indefinite objection; for there is a specific notice of disputing it by an action, which may be prohibition, and the justices knew it; for it is found that they knew that the plaintiff denied the validity of the rate as made by a minority.

ERLE, J.-There must be judgment for the plaintiff. The statute gives the jurisdiction where there is no question of law, that is, no dispute as to validity or liability. In Rex v. Wriotthesley, in which I was engaged, the objection was not brought to the knowledge of the justices, and the mandamus issued to compel them to meet and examine into the complaint. (a)

Judgment for plaintiff.

E. W.

COURT OF QUEEN'S BENCH.

Wednesday, April 28, 1847.

THE QUEEN V. THE INHABITANTS OF LANDKEY.

Order of Sessions-Estoppel-Entry not upon the merils.

Wherever the entry of a judgment at sessions is general, evidence is admissible to shew that it was not upon the merits.

After notice of appeal, the grounds of appeal containing objections to the substance as well as to the form of the order, the respondents gave notice of abandonment, with an offer of costs, and stated that they should go to the sessions only to obtain an entry that the order was quashed not upon the merits. The Sessions refused to make such entry, but made an entry that the order was "quashed without any special entry, as there is no evidence before the Sessions to warrant such special entry." A second order was obtained upon the same facts, and appealed against on the ground of the prior order :

Held, that evidence was admissible to shew that the first order was quashed not upon the merits, the entry being substantially a yeneral entry.

N appeal by the churchwardens and overseers of the poor of the parish of Landkey from and against an order for the removal of Elizabeth Wedlake, widow, and her three children, from the parish of Roborough, in the

(a) The proviso at the end of the seventh section is as follows:-" Provided also likewise, that if the validity of such rate, or the liability of the person from whom it is demanded to pay the same, be disputed, and the party disputing the same give notice thereof to the justices, the justices shall forbear giving judgment thereupon, and the person or per

sons demanding the same may then proceed to the recovery of their demand, according to due course of law, as heretofore used and accustomed: provided likewise, that nothing herein contained shall affect any regulations that may have been made by authority of Parliament, respecting the church-rates or chapel-rates of any particular parishes or districts."

county of Devon, to the parish of Landkey; the Court of Quarter Sessions confirmed the order, subject to a case, the material parts of which were as follow:

It set out an order made Nov. 15, 1844, for the removal of the same paupers from and to the same parishes respectively, against which an appeal was entered and respited at the sessions held Dec. 31, 1844, and on March 22, 1845, the parish of Landkey gave notice for trial of the said appeal at the next sessions. The grounds of appeal were twelve in number, and set up objections to the order in such time, in addition to objections in form. On April 2, 1845, the appellants were served with a notice by the respondents to the following effect: "We, the churchwardens and overseers of the poor of the said parish of Roborough, do hereby give you, the churchwardens and overseers of the said parish of Landkey, notice that we have abandoned and do hereby abandon the said order, and that we intend to appear at the next quarter sessions of the peace for the said county of Devon only for the purpose of quashing the said order, and obtaining a special entry that such order was quashed not upon the merits, and we do hereby undertake and offer to pay all the reasonable costs already incurred by you in regard to the said appeal up to the time of the service of this notice of abandonment." The sessions were held April 8, 1845, when the counsel for the parish of Roborough moved the Court to quash the order with an entry "not on the merits." This was resisted by the counsel for the parish of Landkey. The examinations and grounds of appeal were before the Court, but no inquiry took place as to the question of settlement. The Court refused to make the entry, and the entry made in the sessions-book was as follows: "Order quashed without any special entry, as the Court has no evidence before them to enable them to make such special entry." A second order, under the hands and seals of two magistrates of the said county, and bearing date September 6, 1845, was made for the removal of the same paupers from and out of the said parish of Roborough to the said parish of Landkey, grounded on examinations setting forth the same facts, and no others, as those which formed the grounds of the settlement on which the former order was made. Against this order, also, the parish of Landkey gave notice of appeal, and the appeal came on for trial at the Michaelmas Sessions, 1845. The ninth ground of appeal was relied on by the appellants, and was to this effect: That a former order or pass-warrant, bearing date the 16th day of November, 1844, made by Peter Glubb, clerk, and W. Tardew, Esq., two of her Majesty's justices of the peace for the county of Devon, for removing the said paupers, Elizabeth Wedlake and Ellen, William, Louisa, Henry, Emma, Richard, and Mary, her children, from the said parish of Roborough to the said parish of Landkey, was appealed against by the said parish of Landkey, and that the said order or pass-warrant, upon the said appeal, was quashed by the Court of Quarter Sessions for the county of Devon, at the Easter Sessions, 1845; which order, so quashed, is binding and conclusive as between the said parish of Landkey and the said parish of Roborough.

The appellants proved the quashing of the former order, and the respondents then offered evidence to explain the grounds of quashing such order, and to shew that it had not, in fact, been quashed on the merits; and the Court, after hearing such evidence, held that the former order was not, in their judgment, quashed on the merits, and confirmed the order of the 6th day of September, 1845, subject to a case on the following point: "Whether, under the circumstances above set out, the quashing of the former order was conclusive between the parishes. If this Court shall be of opinion that the quashing was conclusive,

then the order of Sessions of the 14th day of October, 1845, and order of removal of the 6th day of September, 1845, to be quashed; if otherwise, to be confirmed."

Rowe and Cornish, in support of the order of Sessions. It is now settled that evidence is admissible to explain the entry of a prior judgment of Sessions, where it is made in general terms. (Rex v. Wick St. Laurence, 5 B. & Ad. 526; Rex v. Wheelock, 5 B. & C. 511.) These cases were recently before the Court in Reg. v. Widdicombe-in-the-Moor (suprà, p. 64), and the present cannot be distinguished.

Merivale and Karslake, contrà.-After the recent cases it would be useless. to contend that evidence is inadmissible by way of explanation; but the question here is, whether a subsequent Sessions can review the decision of a former Sessions, which was, in effect, what was done in the present instance. The Court had, in the first instance, been distinctly asked to make an entry that the order was quashed not upon the merits, and had refused the application. This was in effect deciding that it was not quashed for that reason only, and the subsequent Sessions had no power to go into the evidence and review their decision; and this was done when they decided that the order had not been quashed upon the merits. It was clear from the grounds of appeal against the first order, that there were objections to the substance as well as to the form; and as it was in fact abandoned without any ground being specified, it is not competent for the respondents afterwards to supply evidence of the motive. Quashing an order because the respondents do not choose to enter into their case is in fact a quashing upon the merits. (Reg. v. Church Knowle, 7 A. & E. 461, 479.) [LORD DENMAN, C. J.-In that case both parties went to the sessions for the purpose of fighting, which distinguishes it from the present.] The reason should have been stated at the time of the abandonment, for now the second Sessions have stultified the first, by coming to the very conclusion which the former Sessions declined to do. [LORD DENMAN, C. J.-Is it distinctly found that the same evidence was produced on both occasions?] No, it does not appear that any evidence was brought forward upon the first occasion; but no ground of withdrawal was specified, so that it was like the case of Reg. v. Church Knowle. It may have been abandoned, in the hope that lapse of time would destroy or weaken the evidence which would be brought forward to support the grounds of appeal. They cited also Reg. v. Wellingborough (15 L. J. 20; Reg. v. St. Anne's, Westminster, 16 L. J. 62 M. C.; suprà, 81; 1 New Mag. Cas. 430; Reg. v. Ellel, 14 L. J. 126 M. C.

LORD DENMAN, C. J.-In my opinion the Sessions have done quite right. It was open to them to find, as a matter of fact, that the former order was not quashed on the merits; and it is plain that it was not so quashed, because the removing parish did not come to the sessions to try the question of settlement, but gave notice before the trial that they abandoned the order, and intended to appear at the quarter sessions only for the purpose of quashing the order, and obtaining a special entry that the order was quashed not upon the merits. The beneficial practice of allowing a parish to abandon an order, when it is convinced that it cannot support it, would be entirely defeated if we held that such an entry as this prevented the later Sessions from inquiring into the grounds upon which the order was quashed, which the former Sessions have purposely left open. The entry is, "Order quashed without any special entry, as the Court have no evidence before them to enable them to make such special entry." In my opinion what was done places the parties in the same position in which they were before the order was obtained. There is no danger of a harassing repetition of such orders, as it is attended with the payment of the costs.

גי

PATTESON, J.-It is open to the Sessions to inquire into the grounds of quashing a former order wherever it has been quashed generally, and here in effect the former order was quashed generally. From the notice of abandonment, though it does not state the precise ground on which the order was abandoned, it does distinctly appear that the abandonment of the order was for a technical defect.

WIGHTMAN, J.-The circumstance referred to by my Lord, and my brother Patteson, distinguish this case from the case of Reg. v. Church Knowle (7 A. & E. 47). There is, in fact, a minute also of the former sessions, or a special entry reserving the right of the subsequent Sessions to inquire into the grounds of quashing the order.

ÉRLE, J.-I deem it of great importance that when the appellant parish objects to the order on some formal or technical point, the removing parish should have the opportunity of correcting the defect, and of coming to a subsequent sessions to try the question on the merits.

Order confirmed.

E. W.

COURT OF QUEEN'S BENCH.

Wednesday, April 28, 1847.

THE QUEEN V. THE INHABITANTS OF BANGOR.

Examination-Materiality of time—Derivative settlement.

The rule is, that where the date is material for the acquisition of a settlement, the examination ought to allege it definitely:

Therefore, where a derivative settlement through the pauper's father was set up, the examinations shewing that the pauper was emancipated in 1812, and relief to the father in 1824, in respect of his settlement, but not shewing whether that settlement was gained prior to 1812 or not, were held insufficient.

N appeal, the Sessions had held the examinations sufficient, but the evidence at the trial was insufficient, and quashed the order of removal, subject to

a case.

Townsend, in support of the order of Sessions.-The ground upon which the order of Sessions is to be confirmed is that which was in that court decided against the appellants. The examinations set out in the case are clearly insufficient in the statement of the time at which the settlement was gained. The material part of them is, that a derivative settlement is set up for the pauper, through his father. It appears that the pauper was emancipated in April, 1812; and the relief for which the settlement of the father is inferred, was not given until 1826. There is nothing whatever upon the face of the examinations to shew when the father gained this settlement. (a) It might have been gained subsequent to 1812, in which case the son would take no derivative settlement. This defect leaves the examinations uncertain in an essential point, and is fatal. At the trial the evidence supplied the necessary proof, but that is not sufficient. The principle is clearly laid down in Reg. v. Lilleshall (7 Q. B. 158; 1 New Mag. Cas. 262; 14 L.J. 96, M. C.), " If upon the examinations the existence of any fact essential to the settlement is left in doubt, we Pannot say that they shew a settlement." The Court then called upon

(a) This being admitted, we have not thought it necessary to set out the examinations at length.