Appeal-Order of Removal-MeritsExaminations-Order of Sessions.

The Court of Quarter Sessions, on appeal, quashed an order of removal, generally, without going into the evidence, on the gronnd that the examinations, accompanying the order, were defective and insufficient, by reason of an omission, which the Sessions judged material, and which defect and omission had been specifically pointed out in the statement of grounds of appeal. Another order of removal of the pauper, from the respondent to the appellant parish, was then made, and that order was appealed against, on the ground that the former judgment of the Sessions was conclusive as to the settlement. At the trial of the second appeal, the respondents tendered evidence to shew that the first order was quashed on a preliminary objection to the sufficiency of the examination, and that the merits were not gone into. The Court of Quarter Sessions held, that the former judgment was conclusive, and refused to hear the evidence, and quashed the order :-Held, that the Sessions were right in deciding that their first judgment was conclusive, and that it was not necessary to consider whether their decision on the first occasion was right or not.

Upon an appeal against an order of two Justices, dated the 14th of February 1843, for the removal of Elizabeth Wright, widow, and her four children, from the township of Charlbury and Walcott, to the parish of Bloxham, both in the county of Oxford, the Sessions quashed the order, subject to the opinion of this Court on a case, which, after setting out the order of removal, stated that the first of the grounds of appeal against the order was as follows:-" that a former order, made by the Right Hon. Lord C. and B. W, Esq., two of Her Majesty's Justices of the Peace for the said county of Oxford, bearing date the 15th of October, A.D. 1842, for the removal of Elizabeth Wright, widow, and her four children (naming them), from the said township of Charlbury and Walcott to the parish of Bloxham, was quashed, on appeal, by the Court of the General Quarter Sessions held at Oxford,

in and for the county of Oxford, on the 2nd of January, A.D. 1843, and which said order of Court related directly to the settlement of the said Elizabeth Wright and her said four children on the day of the date of the said former order of removal, which is the same settlement now in question between the parties to the present appeal, and is therefore binding and conclusive between them, so far as respects the place of the last legal settlement of the said Elizabeth Wright and her said four children, it not appearing on the copy of the examination of Mary Wright, sent to the appellants (such examination being the only one sent with the order now appealed against), that the said Elizabeth Wright has done any act to gain a settlement

since the date of the said former order of removal."

Upon the trial of the present appeal, it appeared that a former order of removal had been made, and had been quashed on appeal, as stated in the grounds of appeal above set out; but it also appeared that such former order had been quashed upon an objection taken in the grounds of appeal against that order, that the examination on which it was founded was defective in not stating the date of the birth of the pauper's husband, and which omission the Court of Quarter Sessions, after hearing the arguments of counsel on both sides, held to be material, and therefore quashed the order, without hearing any evidence, or further going into the case. Upon the trial of the present appeal, a witness was tendered, to prove that at the hearing of the former appeal, the order of removal was quashed upon a preliminary objection to the sufficiency of the pauper's examination, and that the merits of the case were not gone into; but the Court of Quarter Sessions held, that such evidence would not alter their decision, and thereupon, after hearing counsel on both sides, the Court of Quarter Sessions quashed the present order of removal, subject to the opinion of this Court, as to whether the judgment quashing the former order of removal, under the circumstances above stated, was conclusive between the parties, so as to preclude the respondents from removing the paupers again, upon a fresh order, founded upon an amended examination, which supplied the omission in the former one. According to the view taken by the Court of Queen's

Bench, the order of Sessions was to be confirmed or quashed, as the Court might direct.

Keating and Pigott, in support of the order of Sessions.-The Sessions, on the first occasion, having held the omission material, their judgment is conclusive-The Queen v. Evenwood and Barony (1). True, that was a case arising on a defect in grounds of appeal, but the same strictness of construction holds with respect to statements of grounds of appeal and examinations—The Queen v. Eastville (2), The Queen v. Old Stratford (3), The Queen v. Clint (4). In this case the defect appears on the face of the examination - The Queen v. Church Knowle (5). The cases of The King v. Wick St. Lawrence (6), and Osgathorpe v. Diseworth (7), are distinguishable, as in each of those cases it was shewn that the judgment was not on the merits as regarded the settlement; here, the omission has been found material, and the decision is on the very merits. No distinction can be drawn between cases where the evidence is insufficient to support the case made in the examination, and those in which it is inadmissible by reason of the insufficiency of the examination.

[LORD DENMAN, C.J.-The burthen of shewing that the decision of the Sessions was right, on the first occasion, is not on you.]

Kelly and Walesby, contrà.-When the Court of Quarter Sessions decide erroneously on a preliminary point, this Court will review their decision-The Queen v. the Justices of Carnarvonshire (8). Here it appears that the former appeal was stopped, on the ground that the date of the birth of the pauper's husband was not stated in the examination. That was a preliminary objection. It had no reference to the real merits, and the date of the birth might or

(1) 12 Law J. Rep. (N.s.) M.C. 101.

(2) Gale & Dav. 150; s. c. 10 Law J. Rep. (N.S.) M.C. 132.

(3) 2 Q.B. Rep. 117; s. c. 11 Law J. Rep. (N.S.) M.C. 115.

(4) 11 Ad. & El. 624; s. c. 10 Law J. Rep. (N.S.)

M.C. 151.

(5) 7 Ibid. 471; s. c. 7 Law J. Rep. (N.s.) M.C. 4. (6) 5 B. & Ad. 526; s. c. 3 Law J. Rep. (N.S.) M.C. 12.

(7) 2 Stra. 1256; s. c. Burr. S.C. 262.

(8) 2 Q.B. Rep. 325; s. c. 11 Law J. Rep. (N.S.) M.C. 3.

might not become material in the course of the inquiry. In The Queen v. Evenwood and Barony, the appellants were not allowed to be heard, by reason of a defective statement in the grounds of appeal.

[PATTESON, J.-Does not the rule apply quite as strongly to the case of an examination? If you state a settlement imperfectly, is it not the same thing as stating no settlement at all?]

In all the cases cited on the other side the evidence was gone into.

[PATTESON, J.-Not in the case of The Queen v. Evenwood and Barony.]

In that case, the settlement in the appellant parish was admitted, and it was therefore unnecessary for the respondent to give further evidence. Here the respondents were precluded from going into their case.

[PATTESON, J.-If the examination was insufficient, the hearing the evidence would not have supported the settlement.]

The Sessions, at any rate, should have let in the respondents to shew the ground on which the former order was quashedThe King v. Wheelock (9). They deprived themselves of the means of judging whether it was material or not. Great hardship will arise if parishes are bound by the decision of Sessions on immaterial points, as it has been decided that the appellants have a right to go to the Sessions for their costs-The Queen v. Townstall (10) and The Queen v. Stayley (11); and the Court will not compel the Sessions to make a special entry of the grounds of the judgment-The Queen v. the Justices of Lancashire (12).

LORD DENMAN, C.J.-The object of the legislature has been to obtain a free and true communication of the facts between the parties. When that is not done, great expense is unnecessarily thrown on the contesting parishes. In this case, the examination on which the order was made, being sent by the respondent parish, the appellants by their grounds of appeal objected, that such examination was defective, in not stating the date of the birth of the pauper's husband. It is clear, that that date might have been very material. The respondents having

then notice of this omission, it is in their discretion either to go to the Sessions, or to abandon their order, and proceed to obtain a new one. It is said, indeed, that there would be a difficulty in doing this, as the appellants may enter the appeal at the Sessions, at all events, in order to get their costs, and the order would therefore be quashed in this way. That, however, has nothing to do with the question; costs might be tendered or the amount of them referred to some competent person. In this case, however, the parties do go to the Sessions to take their chance, and the Sessions find the examination insufficient by reason of the omission, which they hold to be material, and the order is quashed. Then there is a second order of removal of the paupers, and when the appeal against this second order comes on for hearing, the Sessions are called upon to make a special entry referring to the former order, to the effect that such former appeal was not decided on the merits. This they refuse to do, and the question whether the former order was conclusive, is that which they submit to us. Whether the omission in the examination was material, we cannot tell. As the pauper was about to be removed to her husband's birth settlement, the date of his birth might be most material in making the case out: at all events, if removing parties choose to abide by the original order when the defect in the examination is pointed out to them, they must abide by the judgment of the Sessions when the case comes to be heard. The case of The Queen v. the Justices of Carnarvonshire has been cited, to shew that the Court will compel the Sessions to hear when they refuse a hearing on wrong grounds. That was the case of a mandamus, and we thought that the appellants ought to have been let in to be heard upon the information contained in their grounds of appeal, and that the Sessions improperly refused to hear. In the present case, we must abide by our decision in the case of The Queen v. Evenwood and Barony, and the order of Sessions must, therefore, be confirmed.

PATTESON, J.-Many nice points may, no doubt, be raised for our decision in cases of this nature; and it is said, that decisions on technical grounds increase litigation, but does not the true communication of the facts between the parties lessen the number of appeals? Are there not many cases in

which settlements are fixed, merely on the statements contained in the examination and grounds of appeal, without the parties going to the Sessions? If an order of removal is quashed generally, it is competent to the parties to shew upon what ground it was quashed; and if it was quashed on a ground which does not decide the question of the settlement, but on some other objection, the question of settlement may be gone into again, as in the case of Osgathorpe v. Diseworth. But in this case there was an omission in the examination, which was found to be material by the Sessions, and we do not enter into the question whether it was material or not; the Sessions so decided it. Then there is a second order of removal, and upon appeal the respondents say, now we ought to be allowed to go into the grounds on which the first order was quashed. They do state those grounds, and the Sessions hold that their former judgment was conclusive, and only come to us for our opinion, whether they were right on this point. It seems to me, that if the Sessions quash an order by reason of the omission of a material fact in the examination, it comes to the same thing as if they went into the case, and the evidence was defective; and it is in effect like a judgment on a demurrer to the examination, that is to say, admitting all the facts, the examination shews no settlement. If an order quashed for want of evidence is conclusive, it appears to me that an order quashed for a material omission in the examination is also conclusive on the merits. The case of The Queen v. Evenwood and Barony seems to be on all fours with the present case, and upon consideration I agree to the principle established by that case; and that principle is, that wherever there is a material omission, either in an examination or in the statement of grounds of appeal, and that is so decided by the Sessions, and the order is either quashed or confirmed, as the case may be, on that ground, that is a decision on the settlement itself. I think, therefore, that the Sessions decided rightly in this ease, and that their former order was conclusive.

WILLIAMS, J.-I entirely concur. It has long been settled, that when an order of removal is quashed, it is conclusive between the same parties on the same state of facts. A decision that a pauper is not chargeable,

is not a decision on a mere matter of preliminary form. As soon as fresh relief is given a new state of facts arises, and you may then remove again. In the present case an order is quashed on account of the examination being defective; but, it is contended, that there was not a decision on the merits. What is to be considered a decision on the merits? If an appeal comes on for hearing, whether more or less, and the evidence is insufficient, surely that is a hearing on the merits; here the examination is insufficient, and so stated to be in the grounds of appeal, and is so decided by the Sessions. It cannot, I presume, be said, that in such a case witnesses ought to be called on each side. Surely there has been a hearing; and the Sessions having decided on a matter eminently within their jurisdiction, that is a decision on the merits; and the order being quashed on a hearing on the merits, I think the first judgment was conclusive.

COLERIDGE, J.-I quite agree with the observation of my Brother Patteson, that in consequence of adhering to minuteness and accuracy in the examinations and statements of grounds of appeal, fewer cases are taken to the Sessions; and where an examination is objected to on the ground of insufficiency (not mis-statement), it may be that it does not give sufficient information, which objection stands on the equity of the statute; or it may be, that supposing all the facts are proved, sufficient is not shewn to support a settlement, which stands on the letter of the statute, which forbids parties going out of the grounds stated in their examination. But in either case the Sessions are to decide; and it appears to me that a decision on the examination is as much a decision on the merits, as if the whole facts were proved by the witnesses, and a decision were come to by reason of a defect in the evidence. It is true, that when the Sessions improperly refuse to hear, the Court will interfere by mandamus; but in this case, if they had heard the evidence that was tendered, still the result would have been the same. The respondents do inform the Sessions of the ground on which the first order was quashed; the Sessions say it was on the merits and conclusive: we cannot say that the Sessions were wrong, if, on the facts stated, they may have been right. The

date of the birth of the pauper's husband may have been a cardinal point, the proof of his legitimacy might depend upon it; and the appellants should have full opportunity of ascertaining the time of his birth, and other particulars of his history.

1843. Nov. 18.

Order of Sessions confirmed.

THE QUEEN . THE INHABIT-
ANTS OF THE PARISH OF
KINGSCLERE.

Appeal-Order of Removal-MeritsExamination-Sessions.

At the hearing of an appeal, the Sessions were of opinion, upon objection taken, that the examinations were insufficient, and quashed the order, but at the request of the respondents, and with a view to enable them to obtain a fresh order, they stated in the order of Sessions, that the order of removal was quashed, "but not on the merits :"-Held, upon a case stated, that the Sessions were not bound to quash the order absolutely, and that this Court would not entertain the question, whether the objection went to the merits of the settlement, though that question was raised on the case, the Sessions having found in terms that they quashed not on the merits.

Upon an appeal against an order of two Justices, dated the 2nd of June, A.D. 1842, for the removal of William Webb, his wife, and four children, from the parish of Thatcham, in the county of Berks, to the parish of Kingsclere, in the county of Southampton, the Sessions quashed the order, "but not on the merits," subject to a case to be stated for the opinion of the Court of Queen's Bench, "whether the insufficiency of the examination of the pauper is a defect of form, or a question of merit." The order of removal was made upon the examination of the pauper, and of Thomas Webb, the brother of the father of the pauper. Thomas Webb stated, that he was sixty years of age, and born in the parish of Kingsclere, where he is a parishioner, and was relieved by that parish upwards of forty years ago; and that his father was also a parishioner of Kingsclere, and received relief of such parish for several years previous to and up to his

death. That his late brother Alexander Webb, the father of the said William Webb (the pauper), was a parishioner of the said parish of Kingsclere, of which he also received relief for upwards of two years previous to his death, which occurred in the parish of Thatcham, where he then resided. (The remainder of the examination was immaterial.)

The grounds of appeal stated, first, that the said order of removal, and the examinations on which the same are grounded, is and are bad upon the face and faces thereof. Fifthly, that the said examination and examinations is and are bad upon the face and faces thereof, because it does not appear in and by the said examination and examinations, or either of them, at what time or times, or in what year or years, the said Alexander Webb received relief from the said parish of Kingsclere, nor from whom, if from any one, the said Alexander Webb received the same; eighthly, that they were also bad on the face thereof, because it did not appear by them that the said Alexander Webb ever received any relief from the said parish of Kingsclere at any time when he was not residing in the said parish of Kingsclere; twelfthly, that they were bad, &c., because it did not appear that the two years, during which it is alleged in the said examination of the said Thomas Webb, that the said Alexander received relief from the said parish of Kingsclere, were the two years immediately preceding the death of the said Alexander Webb.

At the hearing of the said appeal, the counsel for the respondents stated, that the pauper William Webb had a settlement in the appellant parish, derived through Alexander Webb his father, whom the appellant parish had acknowledged to be their parishioner by having relieved him while resident in the respondent parish. The appellants relied upon their grounds of appeal, and objected, that the respondents were not entitled to go into evidence of that head of settlement, inasmuch as the time at which the said Alexander Webb was supposed to have been relieved by the appellant parish, while resident in the respondent parish, had not been stated with sufficient particularity in the examinations upon which the said order of removal was founded, and that the examinations were on that ground insufficient to

support the order. The Court, after hearing counsel for the respondents, adopted this view of the case, and quashed the order, without allowing the respondents to go into their case, upon the ground of the insufficiency of the examinations in that respect; but at the request of the respondents, and with a view to enable them to obtain a fresh order of removal, the Court directed the order of Quarter Sessions for quashing the order of removal to be drawn up in the following form:—

"Upon the appeal of the churchwarden and overseers of the poor of the parish of Kingsclere, in the county of Southampton, (entered and respited at the last session until this session,) against an order under the hands and seals of A. B. and C. D, two of her Majesty's Justices, &c., for the removal, &c., and upon reading the said order of the said two Justices, and upon hearing counsel for and on behalf of the said parish of Thatcham, the respondents, and also upon hearing counsel for and on behalf of the said parish of Kingsclere, the appellants, it appeared unto this Court, that the examination of the pauper and other persons annexed to the said order of Justices is insufficient. It is therefore ordered and adjudged by the Court, that the order of the said two Justices be quashed, but not on the merits, and it is hereby quashed accordingly. And it is further ordered, that a special case be stated for the opinion of her Majesty's Court of Queen's Bench, at Westminster, whether the insufficiency of the examination of the pauper is a question of form or a question of merit." The above case had been accordingly stated in compliance with the direction of the Court of Quarter Sessions, as contained in the last-mentioned order; and that the question for the opinion of the Court was, whether, under the circumstances above stated, the Court of Quarter Sessions were not bound to quash the order of removal absolutely, inasmuch as they had decided that the examination on which it was founded was insufficient, or whether such insufficiency of examination was a mere defect of form. If the Court should be of opinion, that the insufficiency of the examinations is a mere defect of form, the entry of the Court of Quarter Sessions was to stand, otherwise the order of removal to be quashed absolutely.