Gambar halaman

Bench, the order of Sessions was to be con- might not become material in the course of firmed or quashed, as the Court might direct. the inquiry. In The Queen v. Evenwood

and Barony, the appellants were not allowed Keating and Pigott, in support of the to be heard, by reason of a defective stateorder of Sessions. - The Sessions, on the ment in the grounds of appeal. first occasion, having held the omission ma- [PATTESON, J.-Does not the rule apply terial, their judgment is conclusive-- The quite as strongly to the case of an examinaQueen v. Evenwood and Barony (1). True, tion? If you state a settlement imperfectly, that was a case arising on a defect in grounds is it not the same thing as stating no settleof appeal, but the same strictness of con- ment at all?] struction holds with respect to statements of In all the cases cited on the other side the grounds of appeal and examinationsThe evidence was gone into. Queen v. Eastville (2), The Queen v. Old [PATTESON, J.-Not in the case of The Stratford (3), The Queen v. Clint (4). In Queen v. Evenwood and Barony.] this case the defect appears on the face of In that case, the settlement in the appelthe examination - The Queen v. Church lant parish was admitted, and it was thereKnowle (5). The cases of The King v. fore unnecessary for the respondent to give Wick St. Lawrence (6), and Osgathorpe v. further evidence. Here the respondents were Diseworth ( 7), are distinguishable, as in each precluded from going into their case. of those cases it was shewn that the judgment [PATTESON, J.-If the examination was was not on the merits as regarded the set- insufficient, the hearing the evidence would tlement; here, the omission has been found not have supported the settlement.] material, and the decision is on the very The Sessions, at any rate, should have merits. No distinction can be drawn be- let in the respondents to shew the ground tween cases where the evidence is insuffi- on which the former order was quashed cient to support the case made in the exam- The King v. Wheelock (9). They deprived ination, and those in which it is inadmissible themselves of the means of judging whether by reason of the insufficiency of the exam- it was material or not. Great hardship will ination.

arise if parishes are bound by the decision [Lord DENMAN, C.J.—The burthen of of Sessions on immaterial points, as it has shewing that the decision of the Sessions was been decided that the appellants have a right right, on the first occasion, is not on you.] to go to the Sessions for their costs—The

Kelly and Walesby, contrà. --When the Queen v. Townstall (10) and The Queen v. Court of Quarter Sessions decide errone- Stayley (11); and the Court will not compel ously on a preliminary point, this Court will the Sessions to make a special entry of the review their decision - The Queen v. the

grounds of the judgmentThe Queen v. Justices of Carnarvonshire (8). Here it ap- the Justices of Lancashire (12). pears that the former appeal was stopped, on the ground that the date of the birth of LORD DENMAN, C.J.—The object of the the pauper's husband was not stated in the legislature has been to obtain a free and true examination. That was a preliminary ob- communication of the facts between the jection. It had no reference to the real parties. When that is not done, great expense merits, and the date of the birth might or is unnecessarily thrown on the contesting

parishes. In this case, the examination on

which the order was made, being sent by (1) 12 Law J. Rep. (n.s.) M.C. 101. (2) 1 Gale & Dav. 150; s.c. 10 Law J. Rep.

the respondent parish, the appellants by their (n.s.) M.C. 132.

grounds of appeal objected, that such exa(3) 2 Q.B. Rep. 117; s.c. 11 Law J. Rep. (N.s.) mination was defective, in not stating the M.C. 115. (4) 11 Ad. & El. 624; s.c. 10 Law J. Rep. (n.s.)

date of the birth of the pauper's husband. M.C. 151.

It is clear, that that date might have been (5) 7 Ibid. 471 ; s.c. 7 Law J. Rep. (N.s.) M.C. 4. very material. The respondents having

(6) 5 B, & Ad. 526; s. c. 3 Law J. Rep. (N.s.) M.C. 12.

(9) 5 B. & C. 511. (7) 2 Stra. 1256; s. c. Burr. S.C. 262.

(10) 12 Law J. Rep. (N.s.) M.C. 72. (8) 2 Q.B. Rep. 325; s.c. 11 Law J. Rep. (n.s.)

(11) Ibid. M.C. 3.

(12) Ibid. 76.

then notice of this omission, it is in their which settlements are fixed, merely on the discretion either to go to the Sessions, or to statements contained in the examination and abandon their order, and proceed to obtain grounds of appeal, without the parties going a new one. It is said, indeed, that there to the Sessions ? If an order of removal is would be a difficulty in doing this, as the quashed generally, it is competent to the appellants may enter the appeal at the Ses- parties to shew upon what ground it was sions, at all events, in order to get their costs, quashed; and if it was quashed on a ground and the order would therefore be quashed which does not decide the question of the in this way. That, however, has nothing to do settlement, but on some other objection, the with the question ; costs might be tendered question of settlement may be gone into or the amount of them referred to some com- again, as in the case of Osgathorpe v. Dise, petent person. In this case, however, the worth. But in this case there was an omission parties do go to the Sessions to take their in the examination, which was found to be chance, and the Sessions find the examina- material by the Sessions, and we do not enter tion insufficient by reason of the omission, into the question whether it was material or which they hold to be material, and the order not; the Sessions so decided it. Then there is quashed. Then there is a second order of is a second order of removal, and upon apremoval of the paupers, and when the appeal peal the respondents say, now we ought to against this second order comes on for hear- be allowed to go into the grounds on which ing, the Sessions are called upon to make a the first order was quashed. They do state special entry referring to the former order, those grounds, and the Sessions hold that to the effect that such former appeal was not their former judgment was conclusive, and decided on the merits. This they refuse to only come to us for our opinion, whether do, and the question whether the former order they were right on this point. It seems to was conclusive, is that which they submit to me, that if the Sessions quash an order by us. Whether the omission in the examination reason of the omission of a material fact in was material, we cannot tell. As the pauper the examination, it comes to the same thing was about to be removed to her husband's as if they went into the case, and the evibirth settlement, the date of his birth might dence was defective; and it is in effect like a be most material in making the case out: at judgment on a demurrer to the examination, all events, if removing parties choose to that is to say, admitting all the facts, the abide by the original order when the defect examination shews no settlement. If an order in the examination is pointed out to them, quashed for want of evidence is conclusive, they must abide by the judgment of the it appears to me that an order quashed for Sessions when the case comes to be heard. a material omission in the examination is The case of The Queen v. the Justices of also conclusive on the merits. The case of Carnarvonshire has been cited, to shew that The Queen v. Evenwood and Barony seems the Court will compel the Sessions to hear to be on all fours with the present case, when they refuse a hearing on wrong grounds. and upon consideration I agree to the prinThat was the case of a mandamus, and we ciple established by that case ; and that thought that the appellants ought to have principle is, that wherever there is a matebeen let in to be heard upon the information rial omission, either in an examination or in contained in their grounds of appeal, and the statement of grounds of appeal, and that that the Sessions improperly refused to hear. is so decided by the Sessions, and the In the present case, we must abide by our order is either quashed or confirmed, as the decision in the case of The Queen v. Even- case may be, on that ground, that is a deciwood and Barony, and the order of Sessions sion on the settlement itself. I think, theremust, therefore, be confirmed.

fore, that the Sessions decided rightly in this PATTESON, J.-Many nice points may, no ease, and that their former order was condoubt, be raised for our decision in cases of clusive. this nature; and it is said, that decisions on WILLIAMS, J.-I entirely concur. It has technical grounds increase litigation, but long been settled, that when an order of does not the true communication of the removal is quashed, it is conclusive between facts between the parties lessen the number the same parties on the same state of facts. of appeals? Are there not many cases in A decision that a pauper is not chargeable,








is not a decision on a mere matter of preli- date of the birth of the pauper's husband minary form. As soon as fresh relief is may have been a cardinal point, the proof given a new state of facts arises, and you of his legitimacy might depend upon it; may then remove again. In the present and the appellants should have full opporcase an order is quashed on account of the tunity of ascertaining the time of his birth, examination being defective; but, it is con- and other particulars of his history. tended, that there was not a decision on

Order of Sessions confirmed. 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

1843. is insufficient, and so stated to be in the

Nov. 18. 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

Appeal--Order of Remoral-Merits

Examination— Sessions. called on each side. Surely there has been a hearing; and the Sessions having decided At the hearing of an appeal, the Sessions on a matter eminently within their juris- were of opinion, upon objection taken, that the diction, that is a decision on the merits; and examinations were insufficient, and quashed the order being quashed on a hearing on the the order, but at the request of the responmerits, I think the first judgment was con- dents, and with a view to enable them to clusive.

obtain a fresh order, they stated in the order COLERIDGE, J.-I quite agree with the of Sessions, that the order of removal was observation of my Brother Patteson, that in quashed, but not on the merits :"-Held, consequence of adhering to minuteness and upon a case stated, that the Sessions were accuracy in the examinations and state- not bound to quash the order absolutely, and ments of grounds of appeal, fewer cases are that this Court would not entertain the questaken to the Sessions; and where an exam- tion, whether the objection went to the merits ination is objected to on the ground of in- of the settlement, though that question was sufficiency (not mis-statement), it may be raised on the case, the Sessions having found that it does not give sufficient information, in terms that they quashed not on the merits. which objection stands on the equity of the statute; or it may be, that supposing all the Upon an appeal against an order of two facts are proved, sufficient is not shewn to Justices, dated the 2nd of June, A.D. 1842, support a settlement, which stands on the for the removal of William Webb, his wife, letter of the statute, which forbids parties and four children, from the parish of Thatgoing out of the grounds stated in their ex- cham, in the county of Berks, to the parish amination. But in either case the Sessions of Kingsclere, in the county of Southampton, are to decide; and it appears to me that a the Sessions quashed the order, “but not decision on the examination is as much a on the merits," subject to a case to be stated decision on the merits, as if the whole for the opinion of the Court of Queen's facts were proved by the witnesses, and a Bench, "whether the insufficiency of the decision were come to by reason of a defect examination of the pauper is a defect of in the evidence. It is true, that when form, or a question of merit.” The order the Sessions improperly refuse to hear, the of removal was made


the examination Court will interfere by mandamus; but in of the pauper, and of Thomas Webb, the this case, if they had heard the evidence that brother of the father of the pauper. Thomas was tendered, still the result would have Webb stated, that he was sixty years of age, been the same.

The respondents do inform and born in the parish of Kingsclere, where the Sessions of the ground on which the first he is a parishioner, and was relieved by that order was quashed; the Sessions say it was parish upwards of forty years ago; and that on the merits and conclusive: we cannot his father was also a parishioner of Kingssay that the Sessions were wrong, if, on the clere, and received relief of such parish for facts stated, they may have been right. The several years previous to and up to his death. That his late brother Alexander support the order. The Court, after hearWebb, the father of the said William Webb ing counsel for the respondents, adopted (the pauper), was a parishioner of the said this view of the case, and quashed the order, parish of Kingsclere, of which he also re- without allowing the respondents to go into ceived relief for upwards of two years pre- their case, upon the ground of the insuffivious to his death, which occurred in the ciency of the examinations in that respect ; parish of Thatcham, where he then resided. but at the request of the respondents, and (The remainder of the examination was with a view to enable them to obtain a fresh immaterial.)

order of removal, the Court directed the The grounds of appeal stated, first, that order of Quarter Sessions for quashing the the said order of removal, and the examina- order of removal to be drawn up in the tions on which the same are grounded, is following form :and are bad upon the face and faces thereof. Upon the appeal of the church warden Fifthly, that the said examination and ex- and overseers of the poor of the parish of aminations is and are bad upon the face and Kingsclere, in the county of Southampton, faces thereof, because it does not appear in (entered and respited at the last session and by the said examination and examina- until this session,) against an order under the tions, or either of them, at what time or hands and seals of A. B. and C. D, two of her times, or in what year or years, the said Majesty's Justices, &c., for the removal, &c., Alexander Webb received relief from the and upon reading the said order of the said said parish of Kingsclere, nor from whom, if two Justices, and upon hearing counsel for from any one, the said Alexander Webb and on behalf of the said parish of Thatcham, received the same ; eighthly, that they were the respondents, and also upon hearing also bad on the face thereof, because it did counsel for and on behalf of the said parish not appear by them that the said Alexander of Kingsclere, the appellants, it appeared Webb ever received any relief from the said unto this Court, tha the examination of the parish of Kingsclere at any time when he pauper and other persons annexed to the was not residing in the said parish of Kings- said order of Justices is insufficient. It is clere ; twelfthly, that they were bad, &c., therefore ordered and adjudged by the because it did not appear that the two years, Court, that the order of the said two Justices during which it is alleged in the said exam- be quashed, but not on the merits, and it ination of the said Thomas Webb, that the is hereby quashed accordingly. And it is said Alexander received relief from the said further ordered, that a special case be stated parish of Kingsclere, were the two years for the opinion of her Majesty's Court of immediately preceding the death of the said Queen's Bench, at Westminster, whether the Alexander Webb.

insufficiency of the examination of the pauper At the hearing of the said appeal, the is a question of form or a question of merit.” counsel for the respondents stated, that the The above case had been accordingly stated pauper William Webb had a settlement in in compliance with the direction of the the appellant parish, derived through Alex- Court of Quarter Sessions, as contained ander Webb his father, whom the appellant in the last-mentioned order; and that the parish had acknowledged to be their parish- question for the opinion of the Court was, ioner by having relieved him while resident whether, under the circumstances above in the respondent parish. The appellants stated, the Court of Quarter Sessions were relied upon their grounds of appeal, and not bound to quash the order of removal objected, that the respondents were not enti- absolutely, inasmuch as they had decided tled to go into evidence of that head of set- that the examination on which it was tlement, inasmuch as the time at which the founded was insufficient, or whether such said Alexander Webb was supposed to have insufficiency of examination was a mere been relieved by the appellant parish, while defect of form. If the Court should be of resident in the respondent parish, had not opinion, that the insufficiency of the exambeen stated with sufficient particularity in inations is a mere defect of form, the entry of the examinations upon which the said order the Court of Quarter Sessions was to stand, of removal was founded, and that the exam- otherwise the order of removal to be quashed inations were on that ground insufficient to absolutely

Tyrwhitt, in support of the order of Ses- appointed for the township of H, which from sions, relied on the judgment just pro

that time maintained its own poor separately: nounced in The Queen v. Charlbury and -Held, that no settlement was gained in H, Walcott. The Sessions had a right to decide as a distinct township, prior to 1834; and on the law, and to add the special entry- that a pauper whose husband's father was The Queen v. Brighton (1), The King v. hired, and served for a year in the township Cottingham (2)

of H, in the year 1790, and who had acquired The Court called on

no subsequent settlement, was not removeable Carrington and Bros, contrà.—The deci

to such township. sion in The Queen v. Charlbury and Walcott is in the appellants' favour, inasmuch as the Upon appeal against an order of removal, Sessions have quashed for the insufficiency whereby Elizabeth, the wife of John Parker, of the examination. That is a defect in (who had deserted her,) and her three chilsubstance, and the decision of the Sessions dren, were removed from the parish of Rowis therefore conclusive as to the settlement ley Regis, in the county of Stafford, to the at the time of the order of removal. It is township of Hunnington, in the county of utterly inconsistent that by such an entry Salop, the Sessions of the county of Stafthe Sessions should reserve to the respon- ford confirmed the order, subject to the opidents power to remove again.

nion of this Court upon the following

CASE. LORD DENMAN, C.J.-The Sessions here have decided, that the objection taken did John Parker, the pauper's husband, is not go to the merits of the settlement. We the son of William Parker, and has done no decline to enter into the grounds of their act to gain a settlement in his own right, decision. They appear to have considered but his father, William Parker, about the that the omission of the date of the relief was year 1790, was hired, and served for a year not in this case material ; and they say, with one Daniel Hawkeswood, in the townby their entry, that they do not decide on ship of Hunnington, which at that time the merits.

formed part of the parish of Hales Owen, in PATTESON, J. concurred.

the county of Salop. At the time of such COLERIDGE, J.-We have never said that service, and up to the year 1832, the parish all decisions of the Sessions, on the suffi- of Hales Owen consisted of the said township ciency of the examinations, are decisions on of Hunnington, the township Oldbury, and the merits.

ten other townships, all in the county of Order of Sessions confirmed. Salop, and three other townships in the

county of Worcester. The three Worcestershire townships had always had separate

overseers, and supported their own poor, 1843. THE QUEEN V. THE INHABIT- and managed their parochial affairs apart Nov, 15. ANTS OF HUNNINGTON. from each other and the rest of the parish, Parish— Township, Settlement.

but that part of the parish of Hales Owen

which is in the county of Salop, and which Previous to the year 1834, the parish of consists of the township of Hunnington, the Hales Owen consisted of the township of H, township of Oldbury, and ten other townthe township of O, and other townships. ships, formed a distinct district for the mainOnly one set of overseers was appointed for tenance of its poor, and all parochial matters, the whole parish, who made a joint poor-rate up to the year 1832, and was known as the for such parish, which rate formed a common parish of Hales Owen, in the county of fund for parochial purposes. In 1834, by Salop, and for which only one set of overthe authority of a mandamus from the Court seers of the poor were appointed, namely, of King's Bench, separate overseers were four, who were annually appointed for the

whole of the said last-mentioned parish, (1) 2 Gale & Dav. 88; s.c. 11 Law J. Rep. (N.s.) M.C. 106.

and who, together with the churchwardens, (2) 2 Ad. & El. 250; 6.c. 4 Law J. Rep. (N.s.)

made a joint rate extending over the whole M.C. 6.

of the said last-mentioned parish, and which


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