facts necessary to constitute the settlement. In R. v. Latchford, above mentioned, the examinations stated not only the birth of the pauper in the appellant parish, but a settlement by apprenticeship, setting out the indenture (which appeared to have been produced and proved before the justices), and showing a service partly in the appellant parish, partly in that of the respondents, of more than forty days in each; and at the trial, after the respondents had contented themselves with proving the birth settlement only, the appellants proceeded to prove that the residence on the last night of the service under the indenture was in the respondent parish, insisting that they were not bound to produce and prove the indenture, that being admitted by the examinations: but it was holden that what was stated in the examinations could not be deemed an admission by the respondents, as they were not answerable for any statement of the witnesses, and that therefore the appellants ought to have come prepared to prove the whole of the facts of the settlement (i). How far this would be holden at present, when the statement of such settlement would be made by the respondents in their grounds of removal, may be questioned.

As to the mode of proving the settlement, see ante, p. 721, &c.

Variance.] Where the examination stated that the pauper hired for a year with J. S., served a part of the time with him, and the residue at his instance with his mother in another parish, and the evidence was, that J. S. hired the pauper for his father, shortly before his death, that the father allowed the pauper to assist J. S. on his farm for some little time until his death, when the pauper went and served his father's widow for the remainder of the year: the court held this to be a material variance between the evidence and the examination, and that the evidence ought not to have been received (k). So, where a witness, upon his examination before the justices, by mistake stated the hiring of the pauper to have been in 1813, when at the trial of the appeal it appeared to have been in 1810: the court held the variance to be fatal, and that the respondents could not be allowed to give the facts of the settlement in evidence in support of their order (1). So, where the examination of the pauper stated a settlement by renting a tenement from June, 1827, to June, 1828; and at the trial of the appeal, it was proved to have been from June, 1828, to June, 1829, and the order was thereupon quashed for the variance upon an application for a mandamus to the justices to rehear the

(i) R. v. Latchford, 6 Q. B. 567. See also R. v. Bedingham, supra.

(k) R. v. Misterton, 6 Ad. & El. 878. (1) Ex p. Broseley, 7 Ad. & EL

appeal, the court refused it, holding the variance to be fatal; they said that the material variance between the examination and the proof at the trial of an appeal, is equally fatal as a variance between the grounds of appeal and the proof; but independently of that, the court held that they had no authority in such a case to revise the decision of the sessions, unless a case were stated (d).

Where a fact is laid to have taken place" in or about" such a year, it will be sufficient to prove it to have taken place in that year, or in the next before or next after it (e).

What.] The sessions, by their judgment, can merely confirm or quash the order of removal; they cannot, for instance, make it a part of their judgment that the pauper shall be taken back to the removing parish (f), or the like. Costs, however, form part of their judgment, if they award them. In determining the appeal, we have seen (g) that justices who are rated to the poor in either parish, shall not vote; they are not even to vote upon the question, whether a case shall be granted or not (h). Where upon the trial of an appeal against an order of removal, a justice who was a rated inhabitant in the appellant parish was upon the bench, and one of the counsel for the respondents therefore objected to his taking any part in the discussion, whereupon the chairman declared that the justice should take no part in the hearing or decision of the appeal; but the justice remained upon the bench, and in the course of the hearing made observations to the chairman, and looked at and referred to some papers before him, to which the chairman paid no attention, but the chairman and the

other justices decided the appeal in favour of the appellants, without conferring with this justice, or being at all influenced by anything said or done by him : upon an application for a certiorari to remove the order of sessions, in order to quash it upon this ground, the court granted the writ; and Lord Campbell, C. J., said that he was glad, for the sake of the due administration of justice in courts of quarter sessions, that this application had been made; the proceeding which here took place was much to be censured; the justice was interested as being a ratepayer of the appellant parish, and if he had done his duty, he would have at once voluntarily withdrawn from the court; that is the example set by judges in Westminster Hall (i). If the justices be equally divided, they must adjourn the appeal to the next sessions, and let it be then reheard and decided (k); or they may adjourn it for the purpose of considering their judgment (1). But the chairman has no casting vote; and where the justices at sessions, including the chairman, were equally divided, and the chairman, with the consent of the other justices, gave a casting vote in favour of the order, and the order was thereupon confirmed,—the court held it to be irregular; but it also appearing that this being objected to on the next day, and the matter being argued, the justices, not entirely the same as on the preceding day, determined to adhere to their previous decision,-the court held the irregularity to be cured, for they could not assume that the decision on the second day was not upon the merits (m). They are not bound to give any reason for their judgment (n); and in quarter sessions for counties, they seldom do. But in boroughs, the recorder frequently states the reasons for his judgment, as fully as the judges of the court of Queen's Bench, in their judgment on settlement cases. The judgment may be altered at any time during the sessions (o).

The effect of it.] As to the effect of the judgment, we have seen (p) that a judgment confirming the order of removal, is final and conclusive as to the then settlement, not only as between the parties, but all other parishes, &c. But if the sessions, upon the hearing of an appeal, confirm the order merely on the ground of an alleged defect in the grounds of appeal, the court of Queen's Bench will afterwards, if they be of

(i) R. v. JJ. of Suffolk, 21 Law J. 169, m.; 16 Shaw's Justice, 296. (k) R. v. Westmoreland, 2 Sess. Ca. 193. Bodmin v. Warlington, 2 Bott, 733.

(1) R. v. King's Langley, 1 Ld. Raym. 481; 2 Salk. 605.

(m) R. v. Fladbury, 10 Ad. & El.

(n) South Cadbury v. Braddon, 2 Salk. 607.

(0) Battersea v. Westham, 5 Mod. 396. St. Andrew, Holborn, v. St. Clement Danes, 2 Salk. 494, 606.

(p) Ante, p. 827.

opinion that the grounds of appeal were sufficient, award a mandamus to the sessions to enter continuances and hear the appeal (q).

On the other hand, a judgment quashing an order of removal, is not binding on any other parishes, &c. but those which are parties to the appeal; and as between them, it is conclusive only when the decision is upon the point of settlement; but if the order be quashed for any defect of form or the like, the judgment does not conclude either party, but they may again litigate the point of settlement in question between them (r).

In what cases final.] Also, by stat. 11 & 12 Vict. c. 31, s. 7, the judgment of the sessions, upon appeal against an order of removal, is final, and cannot be reviewed in any court, by means of a writ of certiorari or mandamus or otherwise, in the following cases: namely, where it is

1. Upon the sufficiency and effect of the grounds of removal. 2. Upon the sufficiency and effect of the grounds of appeal. 3. Upon the sufficiency and effect of the notice of chargeability.

4. Upon the sufficiency and effect of the copy or counterpart of the order of removal sent to the appellant parish. 5. Upon the amending or refusing to amend the order of removal, or the grounds of removal or of appeal. (Sect. 7.)

In any other case, such as a point of law arising in the proof of a settlement by either party, or the like, the court of quarter sessions may grant a case for the opinion of the court of Queen's Bench, as they have hitherto been used to do.

As to a special case generally, see ante, vol. 2, p. 1099, and post, p. 849. If the sessions grant a case, the court, if necessary, will in some cases grant a mandamus, requiring them to state it (s). And upon arguing it, the appellants cannot take any objection to the order, which is not raised by the case (t).

Amendment.] As to the amendment of orders of removal by the sessions, and in what case it may be made, see ante, p. 791, vol. 1, p. 60. Besides the amendments there mentioned, it is enacted by stat. 11 & 12 Vict. c. 31, s. 4, that in all cases where an objection is made for a defect in the form of any ground of removal or of appeal,‚—or where an objection is made to the reception of evidence in support of a ground of removal or of appeal,-and the court shall be of

(q) R. v. JJ. of Carnarvonshire, 11 Law J. 3, m.; 2 Q. B. 325. (r) Ante, p. 830.

(8) See R. v. JJ. of Pembroke

shire, 2 B. & Ad. 391. R. v. Earl of Effingham et al., Id. 393, n.

(t) R. v. Hartpury, 16 Law J. 105, m.

opinion that such ground is so imperfectly or incorrectly set forth, as to be insufficient to enable the party receiving it to inquire into the subject of the statement and to prepare for trial, the court of quarter sessions may cause such ground of removal or appeal to be amended on such terms as to the payment of costs, or postponing the trial to another day in the same sessions or to the next subsequent sessions, or both payment of costs and postponement, as to such court shall appear just and reasonable.

So, if, at the trial of the appeal, any objection be made to the order of removal, for any omission or mistake made in the drawing of it up, and it shall be shown to the satisfaction of the court that sufficient grounds were in proof before the magistrates making the order to have authorized the drawing of it up free from such omission or mistake, the court may amend the order, upon such terms as to the payment of costs as they shall think fit, and may give judgment as if no such omission or mistake had existed. Id. sect. 6.

2. Costs.

Costs of the appeal.] By stat. 8 & 9 W. 3, c. 30, s. 3, "for the more effectual preventing of vexatious removals and frivolous appeals," it is enacted, "that the justices of the peace of any county or riding, in their general or quarter sessions of the peace, upon any appeal before them there to be had for or concerning the settlement of any poor person, or upon any proof before them there to be made of notice of any such appeal to have been given by the proper officer to the churchwardens or overseers of the poor of any parish or place, (though they did not afterwards prosecute such appeal,)—shall at the same quarter sessions award and order to the party, for whom and in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given, as aforesaid, such costs and charges in the law as by the said justices in their discretion shall be thought most reasonable and just, to be paid by the churchwardens, overseers of the poor, or any other person against whom such appeal shall be determined, or by the person that did give such notice as aforesaid." Where the justices at a particular quarter sessions made a general rule "that forty shillings costs only be in future allowed in appeals," and upon an appeal being decided in favour of the appellants, and the order quashed, an application was made that the appellants should be allowed the real costs in the cause, without reference to this general rule, and an offer was made to prove that they had incurred very heavy expenses; whereupon the justices deliberated a short time,