saying, that the respondents were not concluded by the judgment of the sessions, but might upon another appeal explain by evidence the particular ground on which the former order of removal was quashed (d). And if in quashing an order, the sessions assign a reason, which is equivocal, not stating expressly whether for a defect in form or substance, the respondents may explain it by evidence. And therefore where an order was quashed on appeal "on the ground that the examinations were insufficient to support the order," and upon an appeal against a second order, the respondents offered evidence to explain this entry, and to show that the order was not quashed upon the merits, which evidence the sessions received; the court held that the sessions had properly received the evidence, for it was consistent with the entry that the judgment was on matter of form merely (e). So, where the appellants insisted that the respondents were estopped by an order for the removal of the present paupers in the year 1844, which was quashed upon appeal, without entering into the merits, "by reason of the informality and insufficiency of the examinations," but the sessions held this not to be conclusive upon the respondents, and allowed them to prove their case: Upon a case stated, the court of Queen's Bench held that the sessions had a right to judge of the effect of the quashing of the former order of 1844, upon a consideration of the circumstances under which the quashing took place, and that as they had decided it, the court would not interfere with the decision (ƒ). And in another case, where an order of removal was appealed against, and the sessions confirmed it, subject to a case for the opinion of the court of Queen's Bench, and if that court should be of opinion that the appellants' objections to it ought to prevail, then it was to be quashed "for deficiency of the examination accompanying the order;" the court of Queen's Bench heard the case argued, and quashed both orders, without stating on what grounds; a new order was thereupon obtained, against which the appellants appealed, on the ground that the former order being quashed for the deficiency of the examination was final; and at the trial of the appeal, they attempted to give evidence of the ground on which the court of Queen's Bench quashed the former orders, but the sessions refused to receive the evidence, and confirmed the order subject again to the opinion of the court of Queen's Bench:-the court held that the former order 66 quashed for the deficiency of the examination," prima facie estopped the respondents from removing a second time; but as the deficiency might not have been in respect of proof of

(d) R. v Wheelock, 5 B. & C. 511. (e) R. v. Widdecombe on the Moor, 16 Law J. 44, m.

(f) R. v. Dukinfield, 17 Law J. 113, m.

the settlement, but for some mere defect in form, not only might the appellants give evidence of the grounds of the decision of the court of Queen's Bench, but it was incumbent upon the respondents to prove that the decision was on the ground that the examination was defective in a mere matter of form; and not having done so, their second order must be quashed also (g). So if the sessions make a special entry, and it be erroneous, as if they state that they quash an order, "but not upon the merits," when in fact they quash it upon an objection which goes to the merits, the court will not interfere by mandamus, to make them rectify it (h). And where on an objection that the examination did not state the date of certain relief given, the sessions quashed the order, but made a special entry that it was not quashed upon the merits, and then granted a case for the opinion of the court whether it was a quashing upon the merits or not, the court declined to decide the question, saying that they had no materials for inquiring into the propriety of the decision of the sessions; and the order of sessions was consequently affirmed (i). But where an order of removal was quashed, because the examinations did not contain evidence of chargeability; and a new order was then obtained, upon examinations containing such evidence, but the sessions quashed it on the alleged ground that they had quashed the former order on the merits, but they granted a case for the opinion of the court of Queen's Bench: the court held that supposing the first decision to be upon the merits, it was upon the merits as they then stood; but that a new state of things had arisen since, and the former order could not affect that; they accordingly quashed the order of sessions (k). Where upon appeal against an order of removal, which was good upon the face of it, the court of quarter sessions quashed it "for informality," and ordered the respondents to pay the appellants' costs; both orders were then removed by certiorari, and it was objected that the order of sessions was bad, as quashing an order for informality which appeared to be formal and good upon the face of it; but the court held, that the words "for informality" by no means imported that the informality was upon the face of the order; they merely meant that the order was not quashed upon the merits, in order that the respondents might not be concluded by the decision of the sessions (1). An order for the removal of a pauper from the parish of St. Pancras, to the parish of St. Anne, Westminster, was quashed on appeal, with a special

(g) R. v. Leeds, 17 Law J. 1, m. (h) Ex p. Ackworth, 13 Law J. 38, m.

(i) R. v. Kingsclere, 3 Q. B. 388; 13 Law J. 22, m.

(k) R. v. Perranzabuloe, 3 Q. B. 400; 13 Law J. 47, m.

(1) R. v. Cottingham, 2 Ad. & E

250.

entry of "not on the merits, and without prejudice to the making of any other order for the removal of the pauper;" and a subsequent order being afterwards obtained (no new settlement being in the meantime acquired), the same parties again appealed, and by their grounds of appeal set up the quashing of the former order: On a case reserved the court held that the appellants by the special order were precluded from this objection to the second order, and that they could not give evidence to show that the former decision of the sessions really affected the merits of the settlement (m).

SECTION VI.

Proof of Settlement.

By the respondents, 837.
By the appellants, 839.

Variance, 840.

By the respondents.] The respondents must ascertain what part of their grounds of removal is denied by the appellants' grounds of appeal; for all which is not denied, is admitted (n).

If the residence of the pauper be denied, the respondents must prove it.

If the chargeability of the pauper be denied, the respondents must prove it.

If the settlement of the pauper in the appellant parish be denied, the respondents must prove it. The denial in this case, we have seen (o), is either by a specific denial of some material part of the grounds of removal, or by a general traverse of the settlement: if by a specific denial, the respondents are merely bound to prove the thing denied; if by a general denial of the settlement, the respondents will have to prove every fact necessary to constitute the settlement. Where the only settlement disclosed by the examinations was the birth settlement of the pauper's late husband; and the only ground of appeal at all applicable to it, was the general ground that the pauper was not, at the time of the order, nor was her late husband at the time of his decease, legally settled in the appellant parish: it was holden that the respondents, by this ground of appeal, were bound to prove the birth of the pauper's husband in the appellant parish, although there was no ground of appeal traversing his being born there, or alleging

(m) R. v. St. Anne's, Westminster, 16 Law J. 41, m.

(n) Ante, p. 792.
(0) Ante, p. 792.

his being born elsewhere (c). Even where the ground of appeal was, "that the statements contained in the said examinations are not true," this was holden sufficient to call upon the respondents to prove the settlement relied upon in the examinations (d). But where the examinations in support of an order of removal, alleged, as evidence of a settlement, a former order, acted on and unappealed against, for the removal of the pauper and her children from the respondent to the appellant parish, as the place of her late husband's settlement; and the ground of appeal was, "that the pauper's late husband had not at the time of his decease nor ever had any settlement in our said parish:" the court (dub. Erle, J.) held that this general ground was no traverse of the existence of the former order, and that the respondents were not thereby compelled to produce and prove it at the hearing; the examinations stated no settlement, but merely stated facts from which a settlement might be inferred; and the ground of appeal therefore was no traverse of these facts, but merely of the inference to be drawn from them (e).

If the respondents in their grounds of removal set up two settlements, and both be denied by the grounds of appeal, they may prove either or both at the trial; but if one only be denied, the respondents at the trial may abandon that one, and fall back on the settlement which is admitted. In an appeal against an order for the removal of a pauper from A. to B., it appeared that the examinations stated a settlement in B., and also a subsequent settlement in C.; at the hearing of the appeal, the respondents proposed calling witnesses to prove the settlement in B., but the sessions refused to hear it, as the examinations showed a subsequent settlement in C., and they accordingly quashed the order, subject to a case: but the court held that the sessions were wrong; as the examinations set up a settlement in B., the respondents had a right to be heard in proof of it (ƒ). And where the examination stated that the pauper was born in the appellant parish, and had gained no settlement in his own right, and then proceeded to show a settlement acquired by the pauper's father by renting a tenement in the appellant parish; the grounds of appeal merely denied this settlement of the father; at the trial the respondents failed to prove this settlement, owing to an objection taken to the examinations, and they then insisted upon their right to fall back upon the birth settlement of the pauper which had not been denied ; and upon a case granted, it was argued in the court of Queen's Bench, that the respondents were not entitled

(c) R. v. St. Giles, Colchester, 17 Law J. 148, m.

(d) R. v. St. Pancras, 19 Law J. 23, m.

(e) R. v. St. Mary, in Bungay, 19 Law J. 39, m.

(f) R. v. Whitwick, 14 Law J. 25, m.

to rely upon the birth settlement, because they had set up in the same examination a settlement of the pauper's father, and which the pauper derived from him; besides the birth of the pauper was stated, not by way of settlement, but by way of narrative only: but the court held that the respondents had a right to rely on the birth settlement of the pauper, which had been stated by the respondents, and not denied by the appellants (g). So, where the examinations showed that the pauper was born in the appellant parish, and that he had been apprenticed, and had served part of his time in the appellant parish, part in the respondent parish, more than forty days in each; and by the grounds of appeal it was denied that the pauper is, or ever was settled in the appellant parish; at the trial of the appeal, an objection was made to the examinations as respected the settlement by apprenticeship, and the respondents therefore fell back upon the birth settlement, proved it, and the order was confirmed subject to a case: it was argued that the settlement by apprenticeship put an end to the birth settlement, and the respondents therefore could not avail themselves of it: but the court held that the settlement by apprenticeship was not proved, nor were the respondents answerable for any statement respecting it in the examinations, and they therefore had a right to avail themselves of the birth settlement (h). But where the examination set up a settlement by hiring and service with J. S., and also stated several instances of relief given by the appellant parish to the pauper and his family; the grounds of appeal were, that the pauper never acquired a settlement in the appellant parish by hiring and service with the said J. S., or by any other means; and at the trial the respondents gave no evidence of the actual settlement, but merely proved the relief given: it was holden that the appellants, under this ground of appeal, were at liberty to show that they had given the relief under a mistaken impression that the pauper had gained a settlement by the hiring and service (i). As to the manner of proving the contested settlement, see ante, p. 721, &c.

By the appellants.] As to the traverses in the grounds of appeal, it is unnecessary to notice them here; for whatever the appellants deny, must be proved by the respondents. Still, however, the appellants may be provided with negative evidence, to disprove the facts which the respondents are thus called upon to prove. But any settlement set up by the appellants, in their grounds of appeal, must be proved by them; the respondents have no opportunity of denying particular facts stated, and therefore the appellants must prove all the

(g) R. v. Ellesmere, 18 Law J. 181, m.

(h) R. v. Latchford, 6 Q. B.567; 14 Law J. 20, m.

(i) R. v. Bedingham, 13 Law J. 75, m.