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Sessions confirmed the said order, subject

to a

CASE,

which set out the examination of the pauper, stating a settlement by renting a tenement in the appellant township, from 1820 to 1821, and that he had since done no act to gain a settlement, and also that he had been removed under a previous order from the respondent to the appellant township. The examination of James Hayes, who stated, "I am clerk to Mr. R. Palmer, the attorney for the said township of Preston, and as such clerk had the management of opposing an appeal against an order of Justices for the removal of the said paupers from the said township of Preston to the said township of Leeds. The said order of removal was obtained in March 1843, and the appeal against the same was tried at the Preston Quarter Sessions in June 1843. I attended the hearing of the said appeal. The said order of removal was confirmed by the said Court of Quarter Sessions, subject to a case for the opinion of the Court of Queen's Bench. I now produce the said case, as agreed upon between the appellants' and respondents' counsel, and as settled and signed by the chairman of the said Quarter Sessions. I also now produce a copy of the said case. In the said case it is stated, that if the Court of Queen's Bench should be of opinion that any of the objections taken by the said appellants, and set forth in the said case, ought to have prevailed at the said sessions, the order of removal was to be quashed for deficiency of examination accompanying the said order of removal. The said case has been since heard, and the said order of removal has been quashed for deficiency in the said examination, and not upon the merits: the Court of Queen's Bench having so quashed the said order of Sessions, on account of the word 'the' having been omitted in the said examination." Annexed to the examinations was a copy of the former case, which set out the grounds of appeal against the former order; one of which was an objection to the form of the order, and the others to the insufficiency of the examinations on which the order was made, and concluded, "If the Court of Queen's Bench should be of opinion that the aforesaid objections, or any or either of them, ought to have prevailed,

the order of removal is to be quashed for deficiency in the examination" (i).

The grounds of appeal against the present order were (amongst others) first, that the former order of removal and order of Sessions were quashed by the said Court of Queen's Bench for the insufficiency of the examination whereon the said first-mentioned order was made on the third objection in the said special case mentioned, viz. that it did not sufficiently appear upon or by the examination last aforesaid that the house mentioned therein was held, and the rent for the same actually paid, by the said M. Redmayne, for the term of one whole year at the least; wherefore, inasmuch as the last-mentioned orders were quashed upon a ground relating directly to the settlement of the said paupers, on the day of the date of the said former order of removal, and no settlement having been gained by the said paupers, or either of them, in the said township of Leeds on or since the day of the date of the said last-mentioned order of removal, nor any such subsequent settlement being alleged in the order now appealed against, or the examination whereon the same was made, the said quashing of the said former order is binding and conclusive between the parties, as to the place of the last legal settlement of the said paupers, and it was not lawful at the time of the making of the order now appealed against to remove the said paupers or either of them from the said township of Preston to the said township of Leeds; and the overseers of the poor of the said township of Preston ought not to have been permitted to allege before the said Justices who made the order now appealed against, nor ought the respondents in this appeal to be permitted, on the trial of this appeal, to allege that the settlement of the said paupers or either of them was or is in the said township of Leeds. Second, that the said former order having been so made and quashed on appeal, as is mentioned in the said examinations, whereon the said order now appealed against was made, the special case in the said examinations also mentioned was argued in due course of law, before the said Court of Queen's Bench, to wit, on &c.,

(1) See The Queen v. Leeds, 5 Q.B. Rep. 907; s. c. 13 Law J. Rep. (N.s.) M.C. 88.

whereupon it was then and there adjudged by the said Court of Queen's Bench, that the said two former orders should be quashed, which said judgment of the said Court of Queen's Bench related directly to the settlement of the said paupers, at the day of the date of the said former order of removal, which is the same ground of settlement now in question between the same parties, being the parties to the appeal whereof notice is hereby given; and it is therefore binding and conclusive between them, so far as respects the place of the last legal settlement of the said paupers, it not appearing in or by the said order now appealed against, or the examination whereon the same was made, that the said paupers or either of them have done any act to gain a settlement in the said township of Leeds, subsequent to the date of the said former order of removal.

in the present examinations and grounds of appeal; and, in support of the first and second grounds of appeal, called their attorney, who, being sworn, produced the documents, marked A, B, C, D, which he had obtained at the Crown Office, and which he had examined and verified with the original record. The document, marked A, was then alone offered in evidence; but, on the part of the respondents, it was objected, that the evidence of the judgment alone could not be received, but proper evidence of the other matters comprised in the same record ought at the same time to be adduced. The Court of Quarter Sessions held this objection good, subject to the opinion of this Court upon a question as to the admissibility of these documents, upon which nothing turned. The several documents, marked A, B, C, D, being copies of all the documents and matters comprised

The case then set out the following in the said record, were then received and order of Court, marked A.

"Wednesday, the 1st day of May, in the seventh year of the reign of Queen Victoria. In the Queen's Bench.

"Lancashire. "The Queen v. the Inha-) bitants of the Township of Leeds, in the West Riding of the County of York.

Upon hearing counsel on both sides, it is ordered, that an Joriginal order of two Justices for the removal of M. Redmayne and Ann his wife from the township of Preston, in the borough of Preston, in the county of Lancaster, to the township of Leeds, in the West Riding of the county of York, and also an order of Sessions made in confirmation thereof, be severally quashed. "Mr. Cowling, for the prosecutor. "Mr. Hall, for the defendants. "By the Court."

The rule to shew cause why the former order of removal and order of Sessions should not be "severally quashed for the insufficiency thereof," and the recognizance and certiorari, were also set forth upon the case. These were respectively marked B, C, and D.

On the trial of the present appeal the respondents proved that the paupers were settled in Leeds, as stated in the examination. The appellants then contended that the respondents were estopped by the judgment of this Court on the former case, mentioned

read; and, on the part of the appellants, it was then contended that the respondents were estopped by the said judgment, as stated in the said first and second grounds of appeal. On the part of the respondents, it was contended in the first place that it appeared that the original order as well as the order of Sessions were quashed for insufficiency, and that for anything that appeared in evidence, the judgment might have been given on a matter not affecting the question of the settlement of the pauper. But the respondents did not offer any evidence to shew that the judgment of the Court of Queen's Bench on the case aforesaid proceeded on any point other than the point of settlement. The Court of Quarter Sessions held, that, on the case as it then stood, the appellants had not given any evidence to sustain the objections taken in the first and second grounds of this appeal, but subject to the opinion of this Court on the questions hereinafter stated. The appellants then tendered the evidence of a witness who was present in the Court of Queen's Bench during the hearing of the former appeal and delivery of the judgment thereon, and who offered to state the grounds of that judgment, and the expressions of the Lord Chief Justice in delivering that judgment. The respondents objected that this evidence was inadmissible; and so it was held by the Court of Quarter Sessions, sub

ject to the opinion of this Court on the question fifthly hereinafter stated. The Court of Quarter Sessions confirmed the order now appealed against, subject to the opinion of this Court on the following (amongst other) questions. Fourthly, whe.. ther the Court of Quarter Sessions should have held the respondents in this appeal to be estopped and concluded by the judgment aforesaid. If this Court should be of opinion that the respondents ought to be estopped (then the order of removal, and of Sessions in the appeal, to be respectively quashed. But if this Court should be of opinion that the Court of Quarter Sessions were right in holding the judgment aforesaid not binding, then the order of removal and of Sessions (subject to the opinion of the Court on the question next hereinafter stated,) to be confirmed. Fifthly, whether the Court of Quarter Sessions ought to have permitted the appellants to shew by parol evidence the grounds of the decision of this Court on the case, in the former appeal. If so, it is admitted on both sides, that such decision did in fact proceed on the insufficiency of the examinations on which that order was made, in respect of shewing the settlement of the paupers; and in that case if the Court of Queen's Bench should further be of opinion that the quashing of the former order (on the ground that the examinations on which it was made did not sufficiently shew that the paupers were settled in Leeds) was such a quashing as to be conclusive on the question of the then settlement of the paupers between the two townships, then the order now appealed against, and the order of Sessions confirming the same, were to be respectively quashed. If the Court should be of a contrary opinion then the order of removal, and the order of Sessions to be confirmed, subject to the objections herein before stated.

Cowling, in support of the order of Sessions. The question is as to the conclusiveness of the former judgment, and that depends upon what it was which this Court decided; and it is submitted it could only decide upon the precise question submitted to it by the Quarter Sessions, to which it merely acts as a sort of assessor, the judgment being in fact given by the Sessions. Now, the statement in the former case was, that

if this Court thought any of the objections there taken fatal, the order was to be quashed for deficiency of examinations. One of the former grounds of appeal goes only to the form of the order; therefore that shews that the Sessions cannot have meant to do more in any case than to quash for a defect in form; and such a quashing is not necessarily conclusive-The Queen v. Widdecombe-in-the-Moor (2).

[COLERIDGE, J.-It may import a quashing on a point of substance or of form. Does it not then amount to the same thing as if they had quashed generally, in which case the grounds of the decision may be inquired into.]

The Queen v. Ellel (3), if it be correct law, is certainly a strong case against this order; but that decision proceeded on The Queen v. St. Mary, Lambeth (4), where the entry was distinct that no settlement was shewn on the examinations. The Sessions ought to have decided whether the defect in the examinations was or was not material to the settlement-The Queen v. Kingsclere (5).

Hall and Pashley, contrà.-If the judgment in the prior case was equivalent to a general quashing of the order, it lay on the respondents to shew the ground of the decision; and if they did not do so, the appellants were entitled to have the second order quashed (6)—The Queen v. Church Knowle (7). Here, no evidence was given to shew that the former decision was not on the merits. That disposes of the first question reserved in the case.

[COLERIDGE, J.-In point of fact, what entry was made by the Sessions in the former appeal?]

That is not stated in the case. In fact no entry is ever made by the Sessions subsequent to the order reserving the case. The order and case are both brought up here by certiorari; and if this Court quashes

(2) 16 Law J. Rep. (N.s.) M.C. 44.

(3) 7 Q.B. Rep. 593; s. c. 14 Law J. Rep. (N.S.) M.C. 127, n.

(4) Ibid. 587; s. c. 14 Law J. Rep. (N.s.) M.C. 126.

(5) 3 Ibid. 388; s.c. 13 Law J. Rep. (N.s.) M.C. 22.

(6) See The Queen v. Yeoveley, 8 Ad. & El. 806; s. c. 8 Law J. Rep. (N.s.) M.C. 9.

(7) 7 Ad. & El. 471; s. c. 7 Law J. Rep. (N.s.) M.C. 4.

the order of Sessions, there is no further judgment given.

[COLERIDGE, J.-The question asked of us is, whether the Sessions ought to have held the respondents estopped by the mere production of the evidence of the quashing of the prior order. Your present argument is, that the inquiry ought to have proceeded further.]

That question must be considered together with the rest of the case.

[ERLE, J.-Is not the question whether on the evidence then before the Sessions they ought to have quashed the order?whereas the objection taken by the appellants is, that the respondents were absolutely estopped without reference to any evidence which might have been produced by the respondents. Then the other question is, whether in point of law the judgment of the Court of Queen's Bench was per se conclusive; or was it open to us, the Sessions, to inquire whether it did not proceed on a point of form? and they say if it was so open to us, we find that it did proceed on a point of form.]

Assuming that the Sessions had jurisdiction to admit evidence as to the grounds of the former decision, they ought to have received the evidence tendered by the appellants and if they were at liberty to receive such evidence, it is admitted on both sides that the decision of this Court proceeded on the ground that no sufficient settlement was disclosed. The Queen v. St. Peter's, Droitwich (8) shews that the grounds of a decision of this Court may be inquired into. They also referred to Ex parte Ackworth (9), The King v. Wick St. Lawrence (10).

LORD DENMAN, C.J.-I think it quite clear that the former judgment was primá facie an estoppel; but that it was open to the respondents to shew that it proceeded only on a matter of form. They, however, offered no evidence in proof of that fact; but the appellants gave evidence to shew that the decision was on a matter of substance. The Sessions, on the former appeal, asked our opinion, whether an objection

(8) 16 Law J. Rep. (N.s.) M.C. 38.

(9) 3Q.B. Rep. 397, n.; s. c. 13 Law J. Rep. (N.S.) M.C. 38.

(10) 5 B. & Ad. 535; s. c. 3 Law J. Rep. (N.s.) M.C. 12.

taken was valid, and, if so, held that the examinations were deficient, but left it open whether the defect was one of form or not. I think the least they ought to have done was to find this fact one way or the other. However, it was not done. If the Sessions had called it form, and then left it to this Court to say whether they were correct or not in so doing, there are cases to shew that such a defect as that in the former examination is not a mere formal defect, but amounts to a want of proof of a fact essential to the settlement, and which may not have existed-in short, that it was a substantial defect. At first sight, such an objection appears to be a mere verbal quibble, but it may involve the whole question of the settlement. We can only look at the judgment of the Court of Quarter Sessions, which is given, subject to our decision upon the points reserved. They have found that the order should be discharged; and it is left quite doubtful whether on a point of substance or not.

COLERIDGE, J.-I am of the same opinion. The question for us is as to the effect of what passed in the former case at the Quarter Sessions and in this court; nor is it very material to determine which of the two we are to consider as being the actual judgment; for if it be this Court, we have quashed the prior order for matter of substance-if the Quarter Sessions, they have quashed generally, and, therefore, prima facie conclusively. The appellants put in the former judgment, and contend it is an estoppel to all further inquiry. The Sessions hold it is not so; and in so holding, they are quite right, for it was still open to either party to inquire into the real grounds of the decision. Accordingly the appellants tender evidence to shew what the ground of our judgment was; but the Sessions seem to have thought that they could not admit it. There, I think, they were decidedly wrong. a further question arises as to the effect of the former judgment, which, if it can be inquired into, is found to have proceeded on the insufficiency of the examinations, for not shewing a settlement in the appellant parish. I am clearly of opinion that such a decision does import merits. failure to prove a settlement shews a failure of jurisdiction in the Justices below to make the order; and that was the question which

Then

The

the Sessions had to decide, on appeal from the removing Justices. Before the 4 & 5 Will. 4, though called a court of appeal, the Court of Quarter Sessions was in point of fact an original court, for the parties did not confine themselves to the same questions as were agitated before the removing Justices. But the late act has made it strictly a court of appeal; for though they may receive new evidence in support of any grounds of removal set up before the Justices below, they are confined to those particular grounds of removal, and have to decide whether the Justices below were right in adjudging that the pauper should be removed on the evidence then brought before them. In the case alluded to, they did not decide rightly, on account of the defect in the evidence as to a material point. The statute requires that the rent should be paid. The examinations only shewed that some rent had been paid. We were called on to give our opinion on the evidence as laid before the Justices, and could not inquire into what the fact really was, and it was clear that the removing Justices had made the order on insufficient evidence, which was all that we or the Quarter Sessions could decide upon. In the superior courts, the party may withdraw, and be nonsuited if he does not prove his case; and a similar course may be pursued by the Sessions, if they think the defect not a material one. They have got into a practice in such cases of saying, that an order is quashed for informality, and under those circumstances this Court will not interfere Iwith their decision. If we do not make such an entry, and we are to inquire into the grounds on which they proceeded, we must in a case like the present say it is merits, and conclusive.

ERLE, J. (11).—Mr. Cowling's argument is pointed to the fourth question only, which is, whether the Sessions ought to have held the respondents estopped by the mere proof of the former order having been quashed. This question should be answered in favour of the respondents, for it was certainly open to them to go on, and shew that the prior decision proceeded on a point of form not affecting the settlement. But the Sessions having held that the respondents were not

(11) Wightman, J., having no paper-book delivered, gave no opinion.

so estopped, evidence was tendered by the appellants to shew that the former judgment proceeded on the ground that the examinations were insufficient, as shewing no settlement, and they leave it to us by their fifth question to say whether such evidence was admissible. I am clearly of opinion, that this evidence was admissible if the appellants chose to give it. Then such evidence being given, it is a question of argument whether that decision was a decision of substance. The cases have gone to this, that a defective statement of settlement is a defect in a matter of substance. This rule has been frequently acted upon, and we ought to adhere to it. The worst of all evils is to create doubts; therefore the judgment ought to be for the appellants. the same time I cannot but concur in the opinion expressed by my Brother Coleridge, that, where there is a defect consisting merely of a verbal inaccuracy in the statement contained in the examinations, and the truth is with the removing parish, justice will be forwarded in such cases by the Sessions making an entry that the order was quashed for form, instead of quashing it generally, and leaving the effect of the judgment to be discussed again.

At

LORD DENMAN, C.J.-I do not at all differ from that opinion. If the Quarter Sessions see clearly that there has been a verbal inaccuracy, even though in a substantial point, and say, therefore, that they have decided not upon the merits, we ought to give effect to their finding.

1847. Nov. 10.

}

Order quashed.

THE QUEEN v. THE INHABIT-
ANTS OF MYLOR.

Order of Removal-Sending DocumentsEffect of Omission.

Where the examination, on which an order of removal was made, set up two distinct grounds of removal, and a document applying exclusively to one of them referred to in the examination, and produced before the removing Justices, was omitted to be sent by the removing parish, together with the copy of the order, the respondents were precluded from giving evidence at the Sessions in support of either of the grounds of removal.

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