Imágenes de páginas

Sessions confirmed the said order, subject the order of removal is to be quashed for to a

deficiency in the examination”(1). CASE,

The grounds of appeal against the present which set out the examination of the pauper, order were (amongst others) first, that the stating a settlement by renting a tenement former order of removal and order of Sesin the appellant township, from 1820 to sions were quashed by the said Court of 1821, and that he had since done no act to Queen's Bench for the insufficiency of the gain a settlement, and also that he had been examination whereon the said first-menremoved under a previous order from the re- tioned order was made on the third objecspondent to the appellant township. The tion in the said special case mentioned, viz. examination of James Hayes, who stated, “I that it did not sufficiently appear upon or am clerk to Mr. R. Palmer, the attorney for by the examination last aforesaid that the the said township of Preston, and as such clerk house mentioned therein was held, and the had the management of opposing an appeal rent for the same actually paid, by the said against an order of Justices for the removal M. Redmayne, for the term of one whole of the said paupers from the said township year at the least ; wherefore, inasmuch as of Preston to the said township of Leeds. the last-mentioned orders were quashed The said order of removal was obtained in upon a ground relating directly to the setMarch 1843, and the appeal against the tlement of the said paupers, on the day of same was tried at the Preston Quarter Ses- the date of the said former order of removal, sions in June 1843. I attended the hearing and no settlement having been gained by of the said appeal. The said order of the said paupers, or either of them, in the removal was confirmed by the said Court said township of Leeds on or since the day of Quarter Sessions, subject to a case for of the date of the said last-mentioned order the opinion of the Court of Queen's Bench. of removal, nor any such subsequent settleI now produce the said case, as agreed ment being alleged in the order now apupon between the appellants' and respon- pealed against, or the examination whereon dents' counsel, and as settled and signed by the same was made, the said quashing of the chairman of the said Quarter Sessions. the said former order is binding and conI also now produce a copy of the said case. clusive between the parties, as to the place In the said case it is stated, that if the of the last legal settlement of the said Court of Queen's Bench should be of paupers, and it was not lawful at the time opinion that any of the objections taken by of the making of the order now appealed the said appellants, and set forth in the against to remove the said paupers or either said case, ought to have prevailed at the of them from the said township of Preston said sessions, the order of removal was to to the said township of Leeds; and the overbe quashed for deficiency of examination seers of the poor of the said township of accompanying the said order of removal. Preston ought not to have been permitted The said case has been since heard, and the to allege before the said Justices who made said order of removal has been quashed for the order now appealed against, nor ought deficiency in the said examination, and not the respondents in this appeal to be perupon the merits : the Court of Queen's mitted, on the trial of this appeal, to allege Bench having so quashed the said order of that the settlement of the said paupers or Sessions, on account of the word “the' either of them was or is in the said township having been omitted in the said examina- of Leeds. Second, that the said former tion. Annexed to the examinations was order having been so made and quashed on a copy of the former case, which set out appeal, as is mentioned in the said examthe grounds of appeal against the former inations, whereon the said order now aporder; one of which was an objection to pealed against was made, the special case the form of the order, and the others to the in the said examinations also mentioned was insufficiency of the examinations on which argued in due course of law, before the said the order was made, and concluded, “ If the Court of Queen's Bench, to wit, on &c., Court of Queen's Bench should be of opinion that the aforesaid objections, or any

(1) See The Queen v. Leeds, 5 Q.B. Rep. 907; or either of them, ought to have prevailed, 8. c. 13 Law J. Rep. (N.s.) M.C. 88.

whereupon it was then and there adjudged in the present examinations and grounds by the said Court of Queen's Bench, that the of appeal; and, in support of the first and said two former orders should be quashed, second grounds of appeal, called their atwhich said judgment of the said Court of torney, who, being sworn, produced the doQueen's Bench related directly to the set- cuments, marked A, B, C, D, which he had tlement of the said paupers, at the day of obtained at the Crown Office, and which he the date of the said former order of removal, had examined and verified with the original which is the same ground of settlement now record. The document, marked A, was in question between the same parties, being then alone offered in evidence; but, on the the parties to the appeal whereof notice is part of the respondents, it was objected, hereby given; and it is therefore binding that the evidence of the judgment alone and conclusive between them, so far as could not be received, but proper evidence respects the place of the last legal settlement of the other matters comprised in the same of the said paupers, it not appearing in record ought at the same time to be ador by the said order now appealed against, duced. The Court of Quarter Sessions or the examination whereon the same was held this objection good, subject to the made, that the said paupers or either of opinion of this Court upon a question as to them have done any act to gain a settlement the admissibility of these documents, upon in the said township of Leeds, subsequent which nothing turned. The several docuto the date of the said former order of ments, marked A, B, C, D, being copies removal.

of all the documents and matters comprised The case then set out the following in the said record, were then received and order of Court, marked A.

read; and, on the part of the appellants, it "Wednesday, the 1st day of May, in the was then contended that the respondents seventh year of the reign of Queen Victoria. were estopped by the said judgment, as In the Queen's Bench.

stated in the said first and second grounds “ Lancashire.

of appeal. On the part of the respondents, "The Queen o. the Inha- Upon hearing it was contended in the first place that it

bitants of the Township counsel on both appeared that the original order as well as of Leeds, in the Westsides, it is or- the order of Sessions were quashed for insufRiding of the County dered, that an ficiency, and that for anything that appeared of York.

original order of in evidence, the judgment might have been two Justices for the removal of M. Red- given on a matter not affecting the question mayne and Ann his wife from the township of the settlement of the pauper. But the of Preston, in the borough of Preston, in respondents did not offer any evidence to the county of Lancaster, to the township of shew that the judgment of the Court of Leeds, in the West Riding of the county of Queen's Bench on the case aforesaid proYork, and also an order of Sessions made ceeded on any point other than the point of in confirmation thereof, be severally quashed. settlement. The Court of Quarter Sessions

"Mr. Cowling, for the prosecutor. held, that, on the case as it then stood, the “Mr. Hall, for the defendants. appellants had not given any evidence to “ By the Court."

sustain the objections taken in the first and The rule to shew cause why the former second grounds of this appeal, but subject order of removal and order of Sessions to the opinion of this Court on the quesshould not be “severally quashed for the tions hereinafter stated. The appellants insufficiency thereof," and the recognizance then tendered the evidence of a witness and certiorari, were also set forth upon the who was present in the Court of Queen's case. These were respectively marked B, C, Bench during the hearing of the former and D.

appeal and delivery of the judgment thereon, On the trial of the present appeal the and who offered to state the grounds of respoudents proved that the paupers were that judgment, and the expressions of the settled in Leeds, as stated in the examination. Lord Chief Justice in delivering that judgThe appellants then contended that the ment. The respondents objected that this respondents were estopped by the judgment evidence was inadmissible ; and so it was of this Court on the former case, mentioned held by the Court of Quarter Sessions, subject to the opinion of this Court on the if this Court thought any of the objections question fifthly hereinafter stated. The there taken fatal, the order was to be quashed Court of Quarter Sessions confirmed the for deficiency of examinations. One of the order now appealed against, subject to the former grounds of appeal goes only to the opinion of this Court on the following form of the order; therefore that shews (amongst other) questions. Fourthly, whe- that the Sessions cannot have meant to do ther the Court of Quarter Sessions should more in any case than to quash for a defect have held the respondents in this appeal to in form ; and such a quashing is not necesbe estopped and concluded by the judg- sarily conclusive-The Queen v. Widdement aforesaid. If this Court should be of combe-in-the-Moor(2). opinion that the respondents ought to be [Coleridge, J.-It may import a quashestopped (then the order of removal, and of ing on a point of substance or of form. Sessions in the appeal, to be respectively Does it not then amount to the same quashed. But if this Court should be of thing as if they had quashed generally, in opinion that the Court of Quarter Sessions which case the grounds of the decision may were right in holding the judgment afore- be inquired into.) said not binding, then the order of removal The Queen v. Ellel (3), if it be correct and of Sessions (subject to the opinion of law, is certainly a strong case against this the Court on the question next hereinafter order ; but that decision proceeded on The stated) to be confirmed. Fifthly, whe- Queen v. St. Mary, Lambeth (4), where the ther the Court of Quarter Sessions ought to entry was distinct that no settlement was have permitted the appellants to shew by shewn on the examinations. The Sessions parol evidence the grounds of the decision ought to have decided whether the defect of this Court on the case, in the former in the examinations was or was not material appeal. If so, it is admitted on both sides, to the settlement- The Queen v. Kingsclere that such decision did in fact proceed on (5). the insufficiency of the examinations on Hall and Pashley, contrà.-If the judgwhich that order was made, in respect of ment in the prior case was equivalent to shewing the settlement of the

paupers ; and

a general quashing of the order, it lay on in that case if the Court of Queen's Bench the respondents to shew the ground of the should further be of opinion that the quash- decision; and if they did not do so, the ing of the former order (on the ground that appellants were entitled to have the second the examinations on which it was made did order quashed (6)-The Queen v. Church not sufficiently shew that the paupers were Knowle (7). Here, no evidence was given settled in Leeds) was such a quashing as to

to shew that the former decision was not on be conclusive on the question of the then

the merits. That disposes of the first quessettlement of the paupers between the two

tion reserved in the case. townships, then the order now appealed [COLERIDGE, J.-In point of fact, what against, and the order of Sessions confirming entry was made by the Sessions in the the same, were to be respectively quashed. former appeal ?] If the Court should be of a contrary opinion

That is not stated in the case. In fact then the order of removal, and the order of no entry is ever made by the Sessions subSessions to be confirmed, subject to the sequent to the order reserving the case. objections hereinbefore stated.

The order and case are both brought up

here by certiorari; and if this Court quashes Cowling, in support of the order of Sessions. The question is as to the conclusive- (2) 16 Law J. Rep. (N.s.) M.C. 44. ness of the former judgment, and that (3) 7 Q.B. Rep. 593; 8. c. 14 Law J. Rep. (N.s.)

M.C. 127, n. depends upon what it was which this Court

(4) Ibid. 587; 8. c. 14 Law J. Rep. (n.s.) M.C. decided ; and it is submitted it could only

126. decide upon the precise question submitted (5) 3 Ibid. 388; s.c. 13 Law J. Rep. (N.s.) M.C. to it by the Quarter Sessions, to which it

22. merely acts as a sort of assessor, the judgment

(6) See The Queen v. Yeoveley, 8 Ad. & El.

806 ; s. c. 8 Law J. Rep. (N.s.) M.C. 9. being in fact given by the Sessions. Now,

(7) 7 Ad. & El. 471, s.c. 7 Law J. Rep. (p.s.) the statement in the former case was, that M.C. 4.


the order of Sessions, there is no further taken was valid, and, if so, held that the judgment given.

examinations were deficient, but left it open [COLERIDGE, J.-The question asked of whether the defect was one of form or not. us is, whether the Sessions ought to have I think the least they ought to have done held the respondents estopped by the mere was to find this fact one way or the other. production of the evidence of the quashing However, it was not done. If the Sessions of the prior order. Your present argument had called it form, and then left it to this is , that the inquiry ought to have proceeded Court to say whether they were correct or

not in so doing, there are cases to shew That question must be considered together that such a defect as that in the former exwith the rest of the case.

amination is not a mere formal defect, but [Erle, J.—Is not the question whether amounts to a want of proof of a fact essenon the evidence then before the Sessions tial to the settlement, and which may not they ought to have quashed the order ?- have existed-in short, that it was a subwhereas the objection taken by the appel- stantial defect. At first sight, such an oblants is, that the respondents were absolutely jection appears to be a mere verbal quibble, estopped without reference to any evidence but it may involve the whole question of the which might have been produced by the settlement. We can only look at the judgrespondents. Then the other question is, ment of the Court of Quarter Sessions, which whether in point of law the judgment of is given, subject to our decision upon

the the Court of Queen's Bench was per se con- points reserved. They have found that clusive; or was it open to us, the Sessions, the order should be discharged ; and it is to inquire whether it did not proceed on a left quite doubtful whether on a point of point of form ? and they say if it was so substance or not. open to us, we find that it did proceed on COLERIDGE, J.-I am of the same opinion. a point of form.]

The question for us is as to the effect of Assuming that the Sessions had juris- what passed in the former case at the Quardiction to admit evidence as to the grounds ter Sessions and in this court; nor is it very of the former decision, they ought to have material to determine which of the two we received the evidence tendered by the appel. are to consider as being the actual judgment; lants: and if they were at liberty to receive for if it be this Court, we have quashed the such evidence, it is admitted on both sides prior order for matter of substance—if the that the decision of this Court proceeded on Quarter Sessions, they have quashed genethe ground that no sufficient settlement was rally, and, therefore, prima facie concludisclosed. The Queen v. St. Peter's, Droit- sively. The appellants put in the former wich (8) shews that the grounds of a deci- judgment, and contend it is an estoppel to sion of this Court may be inquired into. all further inquiry. The Sessions hold it They also referred to Ex parte Ackworth is not so; and in so holding, they are quite (9), The King v. Wick St. Lawrence (10). right, for it was still open to either party to

inquire into the real grounds of the decision. LORD Denman, C.J.--I think it quite Accordingly the appellants tender evidence clear that the former judgment was primá to shew what the ground of our judgment facie an estoppel; but that it was open to was; but the Sessions seem to have thought the respondents to shew that it proceeded that they could not admit it. There, I only on a matter of form. They, however, think, they were decidedly wrong. Then offered no evidence in proof of that fact ; a further question arises as to the effect of but the appellants gave evidence to shew the former judgment, which, if it can be that the decision was on a matter of sub- inquired into, is found to have proceeded stance. The Sessions, on the former appeal, on the insufficiency of the examinations, asked our opinion, whether an objection for not shewing a settlement in the appel

lant parish. I am clearly of opinion that (8) 16 Law J. Rep. (N.s.) M.C. 38.

such a decision does import merits. The (9) 3 Q.B. Rep. 397, n.; 5. c. 13 Law J. Rep. (N.s.) M.C. 38.

failure to prove a settlement shews a failure (10) 5 B. & Ad. 535; s. c. 3 Law J. Rep. (N.s.) of jurisdiction in the Justices below to make M.C. 12.

the order ; and that was the question which the Sessions had to decide, on appeal from so estopped, evidence was tendered by the the removing Justices. Before the 4 & 5 appellants to shew that the former judgment Will. 4, though called a court of appeal, proceeded on the ground that the examinathe Court of Quarter Sessions was in point tions were insufficient, as shewing no setof fact an original court, for the parties did tlement, and they leave it to us by their fifth not confine themselves to the same questions question to say whether such evidence was as were agitated before the removing Jus- admissible. I am clearly of opinion, that tices. But the late act has made it strictly this evidence was admissible if the appela court of appeal ; for though they may lants chose to give it. Then such evidence receive new evidence in support of any being given, it is a question of argument grounds of removal set up before the Jus- whether that decision was a decision of tices below, they are confined to those par- substance. The cases have gone to this, that ticular grounds of removal, and have to a defective statement of settlement is a decide whether the Justices below were right defect in a matter of substance. This rule in adjudging that the pauper should be has been frequently acted upon, and we removed on the evidence then brought ought to adhere to it. The worst of all before them. In the case alluded to, they evils is to create doubts; therefore the judgdid not decide rightly, on account of the ment ought to be for the appellants. At defect in the evidence as to a material point. the same time I cannot but concur in the The statute requires that the rent should opinion expressed by my Brother Coleridge, be paid. The examinations only shewed that that, where there is a defect consisting some rent had been paid. We were called merely of a verbal inaccuracy in the stateon to give our opinion on the evidence ment contained in the examinations, and as laid before the Justices, and could not the truth is with the removing parish, jusinquire into what the fact really was, and it tice will be forwarded in such cases by the was clear that the removing Justices had Se sions making an entry that the order made the order on insufficient evidence, was quashed for form, instead of quashing which was all that we or the Quarter Ses- it generally, and leaving the effect of the sions could decide upon. In the superior judgment to be discussed again. courts, the party may withdraw, and be LORD DENMAN, C.J.-I do not at all nonsuited if he does not prove


differ from that opinion. If the Quarter a similar course may be pursued by the Sessions see clearly that there has been a Sessions, if they think the defect not a verbal inaccuracy, even though in a submaterial one. They have got into a practice stantial point, and say, therefore, that they in such cases of saying, that an order is have decided not upon the merits, we ought quashed for informality, and under those to give effect to their finding. circumstances this Court will not interfere

Order quashed. with their decision. If we do not make such an entry, and we are to inquire into the grounds on which they proceeded, we must in a case like the present say it is 1847. merits, and conclusive.

Nov. 10. ERLE, J. (11).--Mr. Cowling's argument

Order of Removal-Sending Documentsis pointed to the fourth question only, which is, whether the Sessions ought to have held

Effect of Omission. the respondents estopped by the mere proof Where the examination, on which an order of the former order having been quashed. of removal was made, set up two distinct This question should be answered in favour grounds of removal, and a document applyof the respondents, for it was certainly open ing exclusively to one of them referred to to them to go on, and shew that the prior in the examination, and produced before the decision proceeded on a point of form not removing Justices, was omitted to be sent by affecting the settlement. But the Sessions the removing parish, together with the copy having held that the respondents were not of the order, the respondents were precluded

(11) Wightman, J., baving no paper-book deli- from giving evidence at the Sessions in supvered, gave no opinion.

port of either of the grounds of removal.

case; and




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