tain the application, the full costs of the former order not having been paid.

Quære-Whether, if such full costs had been paid or tendered, they could be compelled to entertain such application, the first order not having been quashed or vacated.

A rule had been obtained, calling on the Rev. J. Hinchliffe and W. Baker, Esq., two Magistrates, to shew cause why they should not hear evidence, &c. in a case of bastardy.

From the affidavits it appeared that, on the 4th of April 1846, Rebecca Whittington, having been delivered of a bastard child, applied to the above Magistrates for a summons on the putative father. A summons accordingly issued for the 14th, and was duly served on the father.

On the 14th the application was heard before the same Magistrates, and the woman was sworn and examined, and also crossexamined by the attorney for the putative father.

The application was adjourned till the 17th. On that day Mr. Baker was not present, but Mr. Hinchliffe and another Magistrate formed the Court. The woman appeared with her attorney, and the attorney for the putative father also appeared, and when she was about to be examined he insisted that she ought to be re-sworn. The attorney for the woman objected, and she was not re-sworn, and an order was made in the form given by the Schedule 8 & 9 Vict. c. 10.

The attorney for the man immediately gave notice of appeal for the next sessions, on the ground that the woman had not been examined on oath. On the 25th of April the putative father entered into the usual recognizances to appear at the Sessions. The sum adjudged to be paid, 2s. a week, was paid under the order. On the 2nd of May the attorney for the woman gave notice to the attorney of the putative father, that he should abandon the order, and tendered 17. 10s. for costs up to the time of giving the notice. This sum was accepted, but the attorney for the putative father stated in his affidavit, (and this did not appear to be contradicted,) that he accepted it as the costs of the day, in respect of the adjournment, but not as the costs of the order.

On the same 2nd of May application

was made to a Magistrate for a summons on the putative father. This was returnable on the 12th of May, on which day the attorney for the putative father attended, and produced the opinion of counsel, to the effect that the application could not be entertained, there being an order still in force. The hearing was adjourned till the 17th of May, when a contrary opinion was produced. The Magistrates, however, declined making the order.

Whitehurst and Huddlestone

shewed

cause. An order of filiation once made cannot be abandoned, so as to entitle the party in whose favour it was made to apply for another. The present order might at any time be enforced by the mother, and the recognizances which have been given to appeal against it cannot be discharged but at the Sessions. If a second order could be made there would be no limit to the number of applications which might be made in respect of a single case of bastardy.

[WIGHTMAN, J.-Suppose that a bad order was made by mistake, could not a fresh order be made?]

If a new order can be granted at any time, the mother might abandon, with a view of getting a larger amount of weekly allowance. Under the old law the Sessions had concurrent jurisdiction with the Magistrates; and in The King v. England (1), an order of Sessions in a bastardy case was quashed, by reason of having been made whilst an order of Magistrates was in existence, which the Court held could only be quashed on appeal. The order, which is good on the face of it, can only be quashed on appeal-The King v. the Inhabitants of Great Marlow (2), The King v. the Justices of Cambridge (3). This is not like the case of an order of removal-The Queen v. the Inhabitants of St. Pancras (4).

[COLERIDGE, J.-There is no case which shews that where an order is bad for want of jurisdiction, a second application may not be entertained.]

There was jurisdiction in this case. The omission to swear the witness was matter

(1) 1 Str. 503.

(2) 2 East, 244.

(3) 2 Ad. & El. 370; s. c. 4 Law J. Rep. (N.S.) M.C. 8.

(4) 3 Q.B. Rep. 347; s. c. 12 Law J. Rep. (N.s.) M.C. 42.

of appeal. If the woman had not proceeded on the first summons, she might, perhaps, have procured a second by analogy to orders of removal-The Queen v. the Justices of Middlesex (5). It might be necessary, in a case like the present, that the Magistrates should keep the order for their own protection; and if the woman had died, the sums ordered to be paid under it would go in aid of the parochial rates. In The Queen v. Bridgman (6), the Magistrates, without proof, assumed the existence of a previous order. There was, at all events, no proof before the Justices of the abandonment of the first order-The Queen v. the Inhabitants of Charlbury and Walcott (7). In Com. Dig. tit. Bastard,' (G,) 2, it is said, that "after vacating an order of two Justices, or upon an original application to the Quarter Sessions, the Court may refer the matter to two Justices, and, upon their report, make an order. The King v. Smith (8) is in point to shew that the first order should have been vacated. The King v. Burrell (9), Pridgeon's case (10), Slater's case (11), and The King v. Tenant (12), are to the same effect. This is like the case of appointment of overseers-Barons v. Luscombe (13), or the case of an arbitration-Irvine v. Elnon (14), or a rate-The Queen v. the Inhabitants of Fordham (15), The Queen v. the Inhabitants of Oundle (16).

Sir J. Jervis (Attorney General), and Pashley, contrà.-If the costs had been accepted as sufficient, there would have been no question about the matter; as there would then have been clearly a contract to undo all that had been previously done. The case must turn on the words of the statute; and an order of this kind,

just as an order of removal, may be abandoned before the sessions are seised of it. In The King v. England an appeal had been entered. In the cases of The Queen v. the Inhabitants of Fordham, and Barons v. Luscombe, the orders were valid and subsisting. The argument on the other side must go the length of contending that if an order of filiation, good on the face of it, were made on A, and it was afterwards found out that the woman had made a mistake as to the christian or surname of the party, a fresh order could not be obtained. So, if the Magistrates refused to make an order, none could be made on any subsequent application. The abandonment of an order is analogous to a nolle prosequi— The Queen v. St. Anne's, Westminster (17). All the authorities on this subject are collected in The Queen v. the Justices of the West Riding of Yorkshire, Longwood v. Halifax (18). A party may abandon or waive a Judge's order, which has been made at his own instance-Maunder v. Collett (19), Wickens v. Cox (20). It cannot be said that both orders are in existence at the same time-The Queen v. the Inhabitants of Great Bolton (21).

Cur. adv. vult.

The judgment of the Court was subsequently delivered by

LORD DENMAN, C.J.-A mandamus was applied for to hear evidence in a case of bastardy, under the following circumstances: -The mother appeared before the Rev. Mr. Hinchliffe and W. Baker, Esq., two Justices of the Peace in petty sessions on the 14th of April, and was sworn and examined respecting the father of her child. The case was adjourned to the next petty sessions, holden on the 17th, when Mr. Baker was not present, and Mr. Hinchliffe and another Justice of the Peace formed the Court. She prayed for an order; the attorney for the putative father required that she should be re-sworn; this was objected to by the attorney for the mother:

(17) Ante, 41.

(18) 2Q.B. Rep. 705; s. c. 11 Law J. Rep. (N.S.) M.C. 57.

(19) 16 Law J. Rep. (N.s.) C.P. 17.

(20) 4 Mee. & Wels. 67; s. c. 7 Law J. Rep. (N.S.) Exch. 224.

(21) 14 Law J. Rep. (N.s.) M.C. 122.

the Court made the order on her examination taken at the former Court. Notice of appeal was instantly given. Afterwards, and before the time for holding the Quarter Sessions, the attorney for the mother gave notice of abandoning his order, and tendered 1. 10s. for costs. That sum was accepted by the attorney for the putative father, but he swears that he accepted it for the costs of the adjournment only, and that that sum was wholly inadequate to cover the whole costs of the order: and this certainly appears probable. The attorney for the mother then applied to the two Justices of the Peace named in the rule, to hear the case a second time. They refused till the opinion of a learned barrister was produced: but though that induced them to hear the evidence, they were deterred by an opposite opinion obtained from similar authority, from adjudicating and from making an order,-apprehending that they could not legally do so, because the order first made was still in force. We need not enter into any discussion of the doctrine touching the abandonment of orders, because it founds itself on the supposition of the opposite party before the order was made being completely reinstated in the position occupied by her. But in the present case, the attorney for the mother had not paid the costs of the order which he sought to abandon, and had not therefore restored the opposite party to the condition in which he would have been if it had not been made. And we think that on this ground the Justices of the Peace ought not to have been required to do what this rule aims at.

An order, dated the 16th of November 1844, was made for the removal of Elizabeth Wedlake, widow, and her seven children, from the parish of Roborough to the parish of Landkey, upon certain examinations, which were set out in the case, and which went to shew a birth settlement of the pauper, and also a settlement of the parents by renting a tenement.

Against this order an appeal was entered and respited on the 31st of December 1844; and on the 22nd of March 1845, the parish of Landkey gave notice for trial of the said appeal at the next Sessions, together with the following grounds of appeal:—

First, that the order of removal, the examinations on which the same was made, and the notice of chargeability are respectively bad on the face thereof; second, that the said examinations contain no sufficient legal evidence that the said paupers, or any or either of them, were or was chargeable to the parish of Roborough at the date of the said order or examinations; third, that it does not appear by the said examinations that William Wedlake was examined before

M

the removing Justices in any inquiry touching the settlement of the said paupers, or any or either of them; fourth, that it does not appear by the said examinations that any certificate of the chargeability of the said paupers, or any or either of them, to the parish of Roborough, from the guardians of the poor of the Torrington Union, was produced before the removing Justices, or any inquiry touching the settlement of the said paupers, or any or either of them; fifth, that it does not appear by the said examinations, that the paper writing sent therewith to us touching the chargeability of the said paupers was produced before the removing Justices, or is the copy of any certificate produced before the said Justices, on any inquiry touching the settlement of the said paupers, or any or either of them; sixth, that the said examinations contain no legal evidence that the paupers, or any or either of them, are settled in the parish of Landkey; seventh, that the examinations contain no legal evidence that Thomas Wedlake, therein mentioned, was ever settled in Landkey; eighth, that it does not appear, by the examinations, that the Thomas Wedlake mentioned in the examination of William Wedlake, was the same person with the Thomas Wedlake mentioned in the examination of Elizabeth Wedlake; ninth, that the examination contained no sufficient evidence that the Thomas Wedlake mentioned in the examination of William Wedlake was born in the parish of Landkey; tenth, that the examinations contain no sufficient evidence that the father of William Wedlake and of the Thomas Wedlake mentioned in the examination of the said William Wedlake was ever settled in the parish of Landkey, by renting a tenement or otherwise; also, that the examinations do not set forth, with sufficient particularity, the name of the said father of the said William and Thomas Wedlake, nor the time of the alleged renting of the estate, called Dean, therein mentioned, nor the payment of any rent for the said estate, nor the residence of the said father of the said Thomas and William Wedlake for forty days in the said parish of Landkey.

On the 2nd day of April 1845, the appellants were served with a notice 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 poor of the said parish of Landkey, notice, that we do abandon the said order, (meaning the above recited 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 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 on the 8th of April 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 the 6th day of September 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 ground 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 William Tardrew, Esqs., two of Her Majesty's Justices of the Peace for the county of Devon, for removing the said pauper, was appealed against and quashed, 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 points: -Whether, under the circumstances above set out, the quashing of the former order was conclusie between the parties. If this Court should be of opinion that the quashing was conclusive, then the order of Sessions of the 14th day of October 1845, and the order of removal of the 6th day of September 1845, were to be quashed; if otherwise, to be confirmed.

W. C. Rowe and Cornish, in support of the order of Sessions.-The Sessions have acted in conformity with all the late decisions, and the respondents adopted the practice recommended by the Court-The King v. the Inhabitants of Wick St. Lawrence (1), The King v. the Inhabitants of Wheelock (2), and The Queen the Inhabitants of Widdecombe in the Moor (3).

[LORD DENMAN, C.J.-You say, the Sessions, on evidence which they rightly admitted, came to a right conclusion.]

We are satisfied with what the Sessions have done-The Queen v. the Inhabitants of Peranzabuloe (4), and The Queen v. the Inhabitants of Charlbury and Walcott (5).

Merivale and Karslake, contrà. The only question is, whether one Court of Quarter Sessions can review the proceedings of another. The Sessions held in April 1845 might have made a special entry, and they were asked to do so, but they refused, and that for a good reason, as the grounds or appeal shewed objections going to the merits. At all events, they refused, rightly or wrongly. The order, therefore, was quashed generally.

(1) 5 B. & Ad. 526; s. c. 3 Law J. Rep. (N.S.) M.C. 12.

[WIGHTMAN, J.-The entry made by the Sessions is in one sense a special entry.]

It is an entry which shews they meant to quash generally. When the parties came before the second Sessions no new evidence was offered, and they have nothing before them but the former entry. It might be that the respondents had discovered a fatal objection-Ex parte the Inhabitants of Wellingborough (6). The respondents should have given some reason for abandoning the order-The Queen v. the Inhabitants of Church Knowle (7). The entry is, therefore, an estoppel-The Queen v. the Inhabitants of St. Anne's, Westminster (8).

[LORD DENMAN, C.J.-It is not stated that at the second Sessions no further evidence was produced.]

LORD DENMAN, C.J.-I think the Sessions were perfectly right in holding that the former order was not quashed on the merits. It appears that the respondents, finding that there was something wrong in their case, gave the appellants notice that they could not sustain their order, and offered to pay the costs. No doubt there is a refusal at the Sessions to make the entry, because the facts are not before them; but on the statement of all the facts, I think we should put an end to a most beneficial practice if we were to hold that the course pursued by the respondents did not leave it open to them to go into the merits on a future occasion. Nothing can be more beneficial than the practice of abandonment, with tender of costs, when the respondents find that they cannot sustain their order: and, here, they apprise the respondents that they abandon on a technical ground.

PATTESON, J.-I am of the same opinion. Whenever an order is quashed generally, the Sessions may inquire into the reason of its being quashed; and the notice of abandonment in this case not only says that the respondents abandon their order, but that it is on a technical ground, and offer to pay the costs.

(6) 15 Law J. Rep. (N.s.) M.C. 20.

(7) 7 Ad. & El. 471; s. c. 7 Law J. Rep. (N.S.)

M.C. 4.

(8) Ante, p. 41.