Order of Removal executed and Unappealed against.]-Acquiescence in an order of removal executed and unappealed against (i) is evidence of acknowledgment by the parish to which the removal is made, of the pauper's settlement being there; but as it is only evidence of the settlement, its peculiar effect will be better considered hereafter (k).

Order of Removal appealed against and Quashed.]-Evidence that at a former sessions an order of removal which had been made at the instance of the same removing parish to the same appellant parish was quashed, is conclusive between those parishes, as to the point then in issue between them; but comes more properly in the next section (k). As to stating settlements by acknowledgment as disscused in this section in examinations and grounds of appeal, see ante, sections 2 & 3 of this Chapter.

SECTION XIII.

OF THE TRIAL AND DETERMINATION OF APPEALS AGAINST ORDERS OF REMOVAL; AND HEREIN OF AMENDMENTS BY THE SESSIONS. THE first step on the hearing of appeals against orders of removal is to prove the service of the notice of appeal, and of the statement of the grounds of appeal by the appellants; unless they are admitted. The appellants should then produce the original order, if it has been served on them, unless it is already filed at the sessions, see ante, p. 638 (1); or,

(i) 2 T. R. 598; 11 East, 388. (k) See p. 851.

(1) Coleridge, J., has doubted whether sessions can establish as a rule of practice that no appeal against an order of removal shall be heard unless the original order is filed with them, Reg. v. West Riding, Yorkshire, (Justices), in Longwood v. Halifax, 2 Q. B. 705. In Reg. v. Stayley (Inh.), 3 Q. B. 357, 362, on an appeal against an order of removal being called on, appellants moved to quash the order (which respondents did not appear to support) and for costs of the appeal. Respondents (who were attending the sessions on other business) resisted this on the ground that the court had no jurisdiction, inasmuch as no original order was before it, and no notice to produce the original had been given; that the paper filed as a copy could not be used, and that after the order had been abandoned

for want of sufficiency in the examination, and (as the notice of abandonment expressly stated) on no other account whatever, the sessions could not entertain the appeal for the purpose of quashing the order which had been already abandoned. Appellants relied on having given a copy of the order to the clerk of the peace according to the rule of practice of that sessions, viz. that all appeals intended to be tried at any sessions, whether lodged at a prior sessions or not, are to be entered with the clerk of the peace at the sessions or adjournment at which the same are to be heard; when the order or proceeding appealed against, or a copy thereof, is to be delivered to him, nor shall any appeal be called on for trial which shall not have been so entered. The sessions upheld their rule, called on the appeal and quashed the order of removal, giving full costs to appellants. Order of sessions confirmed in Q. B.

if a copy only has been served on them, they should have given notice to the officers of the removing parish (and also perhaps to the pauper) to produce the original order at the hearing, in which case they may produce and prove their copy at the sessions (m). The order or its copy is then read; and any preliminary objections may be taken to its form.

Amendment of Judgments or Orders of Justices acting out of Quarter Sessions.]—It is enacted (n), that on all appeals to the general or quarter sessions against the judgments or orders of any justices of the peace, the sessions shall cause any defect of form (o) that shall be found in any such judgments or orders to be rectified and amended, without any costs to the parties concerned; and, after such amendment, shall proceed to hear, examine, and consider the truth and merits of all matters concerning such judgments or orders; and to examine proofs relating thereto, and make such determinations as if there had not been any defect or want of form.

Lord Kenyon observed on this act, that it might have been supposed that if the legislature had been asked what was their intention in passing it, they would have said, they meant that, if upon inquiry it appeared that the pauper had been removed to his proper parish, the sessions should have power to correct all defects in the order. But a more limited construction has been put upon it, it being holden, that if the order be defective on the face of it in any matter of substance, as, if it omit to state that the removal is upon the complaint of the parish officers, or that the pauper was actually chargeable (p), thus failing to show the jurisdiction of the removing justices on the face of the order (q), the sessions cannot amend, even by facts proved before them, and the order must be quashed (r). But the substitution of the name of one parish for the other, obviously by mistake of the clerk; as where, after an adjudication that the settlement was Luggershall, an order directed the pauper to be carried to Harrow, has been holden amendable (s).

The sessions were held entitled to amend an order directed to the churchwardens and overseers of the parish of L., which was but a vill, and without churchwardens (t). So as to an order directed to the

(m) R. v. Kirkby Stephen, Burr. S. C. 664; 2 Nolan, 4 ed. 539.

(n) 5 G. II. c. 19, s. 1.

(0) R. v. Bingley, see ante, 719, n.
(p) R. v. Great Bedwin, Stra. 1150;

Burr. S. C. 163.

(q) See p. 850.

(r) R. v. Great Bedwin, Burr. S. C. 163.

(s) R. v. Harrow-on-the-Hill, 2 Bott, 706; 2 Nol. 4th ed. 553.

(t) R. v. Amlwch, 4 B. & Cr. 757; 6 Dowl. & Ry. 627.

churchwardens and overseers of the township, instead of the parish of B., where it appeared that there were several townships in the parish of B., of which the township of B. was one without separate overseers, and the parish maintained its poor collectively (u).

An order of removal to the parish of L. was directed "to the churchwardens and overseers of L." That parish had no such officers, being divided into three hamlets, T., T., and S., each maintaining its own poor and having separate officers. Pauper, with the order, was delivered to the officers of hamlet T., who gave notice of appeal as officers of the hamlet of T., and reciting the order to be for removal to the hamlet of T. in the parish of L. The sessions were held wrong in refusing to hear the appeal (x).

Since 4 & 5 W. IV. c. 76, the sessions cannot on appeal enter into any objection to an order of removal for defects on the face of it, whether of form or substance, which are not stated in the notice of the grounds of appeal. An order of removal for removing a father" and his children" is not necessarily void, for the children may neither have been baptized, nor acquired names by reputation; but whether such a defect might be amended by the sessions is not decided (y).

Matters which may be Proved on Hearing of the Appeal.]-No ground of removal or settlement can be relied on by the respondents, except it is stated in the examination, or grounds of appeal (z). However, the statute does not preclude them from calling witnesses who were not examined before the removing magistrates, or bind them to call all those who were; and it is sufficient if they make out a primá facie case at the sessions (a).

Respondents may perhaps support their order on grounds not disclosed in the examination, provided the settlement relied on be still in substance the same (b). But where they sought to give in evidence other facts, not indeed inconsistent with those before stated, but facts which appellants had no opportunity of inquiring into, or reason to believe true, (e. g., that the person stated in the examination to have hired the pauper, acted in that transaction not for himself but for his father, whose name had not before appeared), the court held, that as both parties had come to the sessions to try such questions as arose on

(u) R. v. Bingley, 2 N. & M. 103; 4 B. & Adol. 567, n., ante, p. 850.

(x) R. v. Carmarthenshire (Justices), 4 B. & Adol. 563; 1 N. & M. 363. (y) R. v. Withernwick, 6 Ad. & E. 273; S. C. 1 N. & P. 423.

(z) Reg. v. Clint (Inh.), 11 Ad. & E. 624, n.

(a) Reg. v. Felvertoft (Inh.), 1 New Sess. C. 476.

(b) Arguendo, R. v. Misterton.

the pauper's examination, the respondents were not at liberty to introduce new facts which the appellants, if apprised of them before, might have thought true, and therefore might have forborne appealing, or might have deemed false, and prepared themselves to dispute (c).

If more than one settlement is set up by the examinations, (as may well be done, ante, p. 724,) the incomplete statement of one will not preclude the removing parish as respondents from establishing any other which is sufficiently stated (d), though prior in point of date (e); for respondents may at the sessions confine themselves to proving any one settlement disclosed in the examinations without relieving appellants from proving any fact, also averred there, which they may be desirous to use in support of their own cases; statements of this kind having no resemblance to admissions (ƒ).

Where an examination disclosed relief of the pauper while resident in parish C., by parish S., the appellants, and at a later period when resident in parish W., by parish C., the sessions cannot prevent the respondents from proving and relying on the relief by the appellants, though earliest in point of date (g).

Effect of Order of Removal unappealed against.]—A previous order of removal, good on the face of it (h), executed and unappealed against, has the peculiar effect of being conclusive of the pauper's settlement at the time it bears date, not only between the parties originally concerned, but as against all the world, though res inter alios acta: thus it binds a third parish on a subsequent appeal (i).

It is in general conclusive of the marriage of parties removed by it,

(c) R. v. Misterton (Inh.), 6 Ad. & E. 878. Cited R. v. Derbyshire (Jus.), id. 891.

(d) Reg. v. Carnarvonshire (Justices), 2 Q. B. 325 (not overruled quoad hoc). In Reg. v. Camrose (Inh.), 2 Q. B. 330, n., the examination stated facts tending to a settlement by hiring and service in the appellant parish, though incompletely, for want of stating the pauper to be without child at the hiring; and also stated appellants to have relieved him while resident in another parish. Held that the relief admitted a good settlement; for nothing contrary appeared on the examination, as even if the relief must be referred to the incomplete hiring and service, the settlement in that right might exist, though shut out from proof by the defect in the

examinations.

(e) Thus proof of a binding apprentice may be abandoned by the removing parish, while a previous settlement, e. g. by birth, may be relied on by them, Reg. v. Latchford (Inh.).

(f) Reg. v. Latchford (Inh.), 1 New Sess. C. 387; 14 L. J. (M. C.) 20.

(g) Reg. v. Whitwick (Inh.), 14 L. J. (M. C.) 25; 1 New Sess. C. 23, 8. C.

(h) See pp. 848, 859.

(i) R. v. Corsham, 11 East, 388; R. v. Kenilworth, 2 T. R. 599. An order of removal to a certificated parish, unappealed against, is conclusive against the latter on its removing to the certifying parish, R. v. Ealing, 4 Doug. 12; Cald. 472.

and therein described as man and wife (k); also of the legitimacy of the children whom it names (7)—of the settlement of after-born children of the marriage so established (m)—of the settlement of the husband when it removes the wife by name, though not describing her as such (n); and even when it removes his wife as a widow under the supposition of his death, for it is presumed that she was removed to the place of his settlement (o). But it is not conclusive as to a son who is not named in the order, and did not at the time form part of his father's family, thus being emancipated (p), though his emancipation at the time will not be presumed (q). Its effect between several townships of a parish, after separation of a township, is a difficult question (r).

Effect of an Order of Removal Confirmed on Appeal (s).]—“ Judgments of courts of competent jurisdiction, directly on the point in question, are as evidence conclusive between the same parties upon the matter directly in question in another suit. Upon this principle, a judgment of a court of sessions confirming an order of removal, is conclusive not only against the parish to which the removal is directed to be made, but (being a judgment in rem) against all the world, (e. g. as between the appellant parish and a third parish on a subsequent ap

(k) R. v. Wood Chester, Stra. 1172; Burr. S. C. 191; R. v. Silchester, Burr. S. C. 551; and cases collected 7 Ad. & E. 763; 2 Nol. 4th ed. 142. See this rule discussed and cases considered, Reg. v. Wye (Inh.), 7 Ad. & E. 761; where an order of sessions confirming an order of removal of the pauper while a child with his father and mother, was disregarded on proof of a subsequent divorce for nullity of the marriage, as incestuous. The derivative settlement by parentage was thus defeated, and the settlement by birth as an illegitimate child was set up.

Abandoning an order is said not to be enough, for it concludes nothing, 2 Nolan, 4th ed. 144, 236, 499; but see ante, p. 647.

(1) R. v. Northfeatherton, 1 Sess. C.

154.

(m) R. v. St. Mary, Lambeth, 6 T. R. 615, for the precise point which is a necessary part of the proof in the 2nd appeal, has been determined on the 1st, R. v. Catterall, 6 M & S. 83.

(n) R. v. Towcester, Cald. 497. (0) R. v. Rudgley, 8 T. R. 620.

(p) R. v. Southowram, 1 T. R. 353.

(g) Reg. v. Yeoveley (Inh.), 8 Ad. & E. 806. The respondents produced and proved before removing justices an order of removal of M. B., wife of S. B., brother of pauper to the appellant parish, (Sowe), together with the examination on which it was founded (of which copies were sent with the order), disclosing a settlement of A.'s father in Sowe and no other, the wife having been received by the parish officers under that order, and no appeal made. This was held evidence to show A. settled in S., which though slight, was admissible before removing justices in order to obtain an order for A.'s removal; but it was said that neither order or examinations were conclusive evidence, not being an adjudication of A.'s settlement, Reg. v. Sowe (Inh.), 12 L. J. (M. C.) 38. The examinations seem admissible as part of evidence of grounds on which the parish officers acted, but qu.?

(r) Per Cur. R. v. Oldbury, 4 Ad. & E. 167.

(s) As to judgments of sessions in appeals generally, ante, p. 650, 651.