upon its merits; if indeed legal evidence had been improperly rejected, or either party improperly excluded from a hearing, then there would have been no decision upon the merits: the court therefore held that the former order, confirmed, was conclusive, not only as between the original parties, but as between them and all others (e). And where the sessions held that the grounds of appeal were insufficient, and on that ground confirmed the order appealed against, the court of Queen's Bench, although seemingly of a different opinion, refused to award a mandamus to the sessions to enter continuances and rehear the appeal, the sessions having full power to judge of the validity of the grounds of appeal, as well as of the merits (ƒ). But where notice of appeal was given for the next sessions after the service of the order, but in consequence of the grounds of appeal not having been served fourteen days before these sessions, the court confirmed the order, making a special entry," Order confirmed not on the merits, no due notice having been given;" the pauper was then removed, and a fresh appeal was then entered against the order: and the court held that the right to appeal was not lost by the order being confirmed in the former case; that was but an attempt to appeal, which became abortive by reason of the grounds of appeal not being served in time (g).

5. Order appealed against and quashed.

In what cases, and how far conclusive.] An order of removal, if quashed, and the decision be upon the point of settlement, is conclusive as between the appellant and respondent, but does not bind other parishes (h). Where upon an appeal against an order of removal from Bishop's Walton to Farham, the order was quashed; after which two justices again removed the pauper from Bishop's Walton to Farham: but the court of King's Bench held, that the first order being quashed, was conclusive as between the parties, unless indeed it were quashed for want of form only (¿). And the court will deem it to have been quashed upon the merits, unless the contrary be shown by the opposite party. And therefore where, in an appeal against an order of removal, the respondents proved a settlement of the pauper's father, by birth, in the appellant parish;

(e) R. v. Evenwood and Barony, 3 Q. B. 370; 12 Law J. 101, m.

(f) R. v. JJ. of Kesteren, 13 Law J. 78, m.; overruling R. v. JJ. of Carnarvonshire, 11 Law J. 3, m.; 2 Q. B. 325, and R. v. JJ. of W. R. of Yorkshire, 2 Q. B. 331.

(g) R. v. Macclesfield, 19 Law J. 38, m.

(h) See Little Bitham v. Somerby, and Mynton v. Stoney Stratford, ante, p. 828.

(i) R. v. Bishop's Walton, Foley, 275.

the appellants then proved an order of removal of the pauper's mother, after the father's death, describing her as the father's widow, from the respondent to the appellant parish, but which was quashed upon appeal, and they proved that the pauper was then unemancipated: the court held, that as this order was unexplained by the respondents, it must be taken to have been made upon the merits: it was therefore proof that the mother was not then settled in the appellant parish, and consequently that the pauper was not, as he was then, unemancipated (k). So, where the pauper was removed by order from Foston to Carleton, and Carleton appealed, and the order was quashed; two justices afterwards, by order, had him removed again from Foston to Carleton: but the court of King's Bench held that this could not be, without showing some new settlement, gained since the last order (1).

On the other hand, where a pauper was removed by order from St. Michael's to Kingston Bowsey, and Kingston Bowsey appealed, and the order was quashed; the pauper afterwards having intruded into Bedingham, was removed from thence by order again to Kingston Bowsey; it was objected that the former order of removal being quashed, was final as to the pauper's not being settled in Kingston Bowsey: but the court of King's Bench held, that it was final only between the then contending parties, and not as to strangers, as Bedingham in this case was (m).

To be conclusive thus, the decision must have been upon the merits of the case, and not upon a mere point of form, or the like. And therefore where, upon the trial of an appeal against an order of removal, the appellants tendered in evidence an order of sessions, in an appeal between the same parishes, by which an order for the removal of the pauper's brother was quashed, and they offered to prove by parol evidence that the ground of that decision was, that the father of the pauper was not settled in the appellant parish; but the sessions refused to receive this evidence, and confirmed the order: and the court of King's Bench afterwards held that the evidence was not admissible; it could only have shown what the decision of the sessions was, upon a matter which came collaterally, and not directly, before them, namely, the father's settlement; but a former decision cannot be given in evidence, unless it be a decision directly upon the point in issue (n). But where the examination set forth a prior order of removal to the appellant

(k) R. v. Yeovley, 8 Ad. & El.

806.

(1) Foston v. Carleton, 1 Str. 567. R. v. Braddenham, Burr. S. C. 394. S. P. R. v. Leigh, Cald. 59; Doug. 46, S. P. Heston v. St. Bride, 22 Law J. 65, m.

(m) St. Michael's Bedingham v. Kingston Bowsey, Carth. 516; 2 Salk. 486. Cirencester v. Colne St. Aldwin's, Burr. S. C. 17, S. P. R. v. Bentley, Burr. S. C. 425.

(n) R. v. Knaptoft, 2 B. & C. 883.

township, which had been suspended, but did not show that the former order had been served or the pauper removed, and the sessions quashed the order for this defect,-this was holden to be a decision upon the merits, and final (o). So, where the sessions hear the case, and hear all the evidence which under the circumstances can legally be offered to them, that will be deemed to be a decision upon the merits, although the appellants be in fact precluded from going into evidence of a settlement set up by them, owing to a defect in their grounds of appeal (p). So, where the respondents were defeated in an appeal, on account of a variance between the examination of the pauper and his evidence at the trial as to the year of his renting a tenement, the court held that this being a decision against the respondents for want of evidence, was conclusive as between these parishes, and that the respondents could not remove the pauper again to the appellant parish (q). So, where the former order was quashed for an objection to the examination, namely, for omitting to state the date of the birth of the pauper's husband: the court held it to be conclusive, and that the respondents could not remove again (r).

But if the order be quashed for some defect in form, or mistake, independent of the merits, it is not to be conclusive. And therefore, where an order of removal from St. Andrew to Northaw, by mistake, stated the pauper to be legally settled in St. Andrew, and on this ground the order was quashed upon appeal; the pauper being again removed from St. Andrew to Northaw, Northaw appealed, upon the ground that the first order being quashed, was conclusive as between the parties: the court of King's Bench held, that no doubt it would be so, if the first order had been quashed upon the merits; but here it was quashed for a defect of form merely, and therefore it did not conclude the parties (8). So, where the pauper who was residing at Disworth under a certificate from Osgathorpe, was removed by order from the former to the latter before he became actually chargeable, and this order was therefore quashed upon appeal; he afterwards became actually chargeable to Disworth, and he was then again removed to Osgathorpe, and Osgathorpe appealed, upon the ground that the first order being quashed, was conclusive as between these parishes but the court of King's Bench held that it was not conclusive, because it appeared here that the right of Disworth to remove the pauper did not actually accrue until subse

(0) Ex p. Ackworth, 13 Law J. 38, m.

(r) R. v. Charlbury and Walcott, 3 Q. B. 378; 13 Law J. 19, m. (8) R. v. St. Andrew, Holborn, 6 T. R. 613. R. v. Pengs, Nolan's (q) R. v. Clint, 10 Law J. 151, Rep. 176, S. P. See Mungerhunger m.; 11 Ad. & El. 624, n.

(p) See R. v. Evenwood and Barony, ante, pp. 829, 830.

v. Warden, Set. & Rem. 160.

quently to the first order; the one order was therefore consistent with the other (t). So where, in 1822, the pauper was removed from Banwell to Wick St. Lawrence, and the latter appealed, but afterwards abandoned their appeal, and the order was accordingly quashed by consent; in 1832, the pauper was again removed from Banwell to Wick St. Lawrence: the latter appealed, and, on the trial of the appeal, gave in evidence that the reason they abandoned the former order was because the panper was then residing upon a tenement purchased by him for a sum under 301., and from which he was irremovable, although it conferred no settlement, and that having since sold it and become chargeable, they removed him: it was contended, that the first order was conclusive as between these two parishes, and therefore the sessions ought not to have received this evidence; but the court held that it was conclusive only as to the point actually decided by the judgment of the sessions; and as the quashing of an order may be on the ground, either of the pauper not being settled in the appellant parish, or of his not being chargeable to or removable from the respondent parish at the time of removal, evidence must be admitted to show on which of these grounds the judgment proceeded; they held, therefore, that the sessions had rightly received the evidence in question (u). So, where the order was quashed because the copy of it sent with the notice of chargeability did not contain the signatures of the removing justices, it was holden not to be conclusive (v). So, where an appeal against an order of removal was entered and respited, and the respondents gave the appellants notice that they abandoned their order, and that they should attend at the next sessions merely for the purpose of having it quashed, and obtaining a special entry "that such order was quashed not upon the merits," and also undertook to pay the costs; they accordingly applied for such entry at the next sessions, but were opposed by the appellants, and the only entry the sessions would make was-order quashed without any special entry, as the court has no evidence before them to enable them to make such special entry:" the court held that the respondents, in an appeal against a fresh order, were not concluded by the quashing of the former order, but might give evidence to show that such former order was not quashed on the merits (w). But in another case, where upon an appeal against an order of removal coming on to be heard, the respondents admitted that their examinations were defective, as not containing evidence of chargeability, and which defect was pointed out by one of

(t) R. v. Osgathorpe, Burr. S. C. 261.

(u) R. v. Wick St. Lawrence, 5 B. & Ad 526.

(v) R. v. Great Bolton, 7 Q. B. 387. (r) R. v. Landkey, 16 Law J. 81, m.

the grounds of appeal; the appellants thereupon offered to waive the objection, and applied to have the appeal heard on its merits, but the sessions quashed the order at the request of the respondents, with a special entry "for want of proof of chargeability in the examinations:" Upon a motion for a mandamus to the sessions to hear the appeal, the court refused it, Lord Denman, C. J., saying that if the appellants will raise these technical objections, they must at least take the consequences of having them decided in their favour (z). So, where upon an appeal against an order of removal, the respondents, finding that the examination of the pauper was defective, moved to quash their own order, which was consented to by the appellants, but no reason was stated on either side: the court held that this was conclusive as between these parishes, and that the respondents could not remove a second time to the same place; it was very different from quashing an order for want of form (a).

It is usual when the sessions thus quash an order for some defect in form, or upon some other preliminary objection, to state upon their proceedings the ground of their quashing; and it may be prudent to get them to do so. This is done, either by stating the ground of quashing the order specially, or stating generally that they quash it "on the merits" or "not upon the merits." They sometimes state the reason for quashing it; and if this show a defect in substance, such as a defect in the proof of the settlement, or the like, it will be conclusive. And therefore, where an order was quashed, and the entry was, "that it was quashed for the insufficiency of the examination, as disclosing no settlement on the face thereof:" this was holden to be conclusive between the parties upon the point of settlement, although not strictly a decision upon the merits (b). It is however a matter entirely in the discretion of the sessions, whether they will order such a special entry to be made or not; and the court will not, by mandamus or otherwise, interfere with the exercise of their discretion in this respect (c). And therefore where, upon the trial of an appeal against an order of removal, the sessions being of opinion that there was not sufficient evidence of chargeability, refused to enter into the merits, but quashed the order generally; they were then requested to make an entry on their proceedings of the reason for quashing the order, but they refused to do so: upon an application for a mandamus, directing them to make such entry, the court refused it,

(z) Ex p. Wellingborough, 15 Law J. 20, m.

(a) R. v. Church Knowle, 7 Ad. & El. 471.

(b) R. v. St. Mary, Lambeth, R.

v. Ellal, 14 Law J. 126, m.; 7 Q B. 587, 593.

(c) R. v. JJ. of Lancashire, 3 Q. B. 367; 12 Law J. 76, m.