« EdellinenJatka »
A certificate is only conclusive of the facts it sets forth, and their legal consequences. If it acknowledge A. and B. as man and wife, the parish is bound to receive and provide for all the subsequent issue of A. and B., as their lawful children, until they have acquired some other settlement (1). But they must be proved their issue.
Conclusive up to what time.
And it is conclusive only up to the period when granted. A pauper having gained a settlement by residence on his estate at M., afterwards received a certificate from U., and was occasionally relieved by U. while he continued to reside at M. It was held beyond all doubt, that though the certificate was conclusive at the time it was granted, it was afterwards done away by the pauper's residence on his own property (2); and the law is the same where one takes a tenement of the value of 101. a year in a parish, and is afterwards certificated there, he gains a settlement, notwithstanding the certificate, provided he reside there afterwards forty days. (3)
Conclusive, how far.
It is reasonable, that a certificate which operates as a kind of estoppel, should protect the parish which acts immediately upon the faith of it, so far as not to permit the certifying parish to dispute or falsify such facts as it contains. But, as an estoppel, it is not to be favoured, because its tendency is to prevent the investigation of truth; it is therefore conclusive evidence only, as between the parishes by whom it is granted, and that to whom it is given. It is indeed strong evidence against the certifying parish, in its dispute with any other place (4), but it is not so conclusive
(1) See New Windsor v. White Waltham, ante, 139. (4)
(3) Rex v. Findern, Cald. 426. The pauper had only resided a month in M. when he obtained a certificate from U.; and see Rex v. Leek Wooton, 16 East, 118.
(4) Per Holt C.J., All Saints v. St. Giles, 2 Salk. 530. Per Buller J., Rex v. Lubbenham, 4 Term Rep. 251, But Honiton v. St. Mary Axe, 2 Salk. 535. is contra.
but they may disprove the facts alleged, if in possession of sufficient testimony to do so.
Thus, if A. give a certificate to B., acknowledging the pauper as their parishioner, they are bound to receive and maintain him as settled with them, whenever he becomes chargeable to B.; but if B. remove him back to A., and A. find that he is actually settled in C., A. may send him thither. (1) So, where a woman believing her husband, then abroad, to be dead, contracted a marriage de facto with P., who was settled at L. The first husband returned, after which the woman and P. obtained a certificate from L. to T., acknowledging them to be legally settled there; the wife not being described by name, L. cannot dispute the fact as against T., but as against any other parish, L. is not precluded from inquiring into the truth of the case, and shewing that the woman's settlement is with her first hus
But the parish into which the pauper came by certificate is not bound to remove him back to the certifying parish, but may remove him to any other : and it signifies nothing when the certificate is granted; it is only an estoppel upon the parish granting it, as between the two parishes. (3)
A certificate, though not delivered to the parish into Certificate unwhich the pauper comes to inhabit under it, is an acknow- delivered. ledgment by the parish granting it, that the pauper was settled with them when it was given; yet it does not prevent the pauper from gaining a settlement in the certificated parish after it was granted; but according to one case, it is conclusive evidence of the settlement, up to the time when it was granted. (4)
(1) All Saints v. St. Giles, ante, 140. (4)
(4) Rex v. Buckingham, Cald. 64. That it is prima facie evidence between the parish granting the certificate, and that to which it is directed, seems very clear; for it is an acknowledgement by the former
Of acknowledging a Settlement by not appealing from an
Order of Removal.
ac- The effect of an acknowledgment by acquiescence under knowledg
an order of removal, is more extensive than those already mentioned. An acknowledgment, by relief, is no more than prima facie evidence of settlement in all cases. If by certificate, it is conclusive against the parish which grants it, in questions between it and the parish to which it is delivered. But an order of removal, executed and unap
pealed from, is conclusive on the parish upon which the Order of re- order is made, against all the world. (1) It is so where moval, where the paupers reside under a certificate. A. obtained a cerunder a certi- tificate from E. to B. A son of his, born under this cerficate.
tificate, went with his wife and family to reside in M., who removed them by an order back again to B. This order, not having been appealed from, is conclusive that the husband is settled in B., even as between that parish and E., from which it received the certificate. (2)
Order removing as husband and wife,
Under such circumstances, therefore, an order removing two persons as man and wife, is final and conclusive of that fact, and settles them as such in the parish to which
that the pauper is settled with them. But as the latter is not thereby prevented from removing the pauper, it seems hard that the certifying parish should be concluded by it in the same manner as if the parish to which it certifies had been compelled to receive him on the faith of the certificate. See the opinion of Wright J., Rex v. St. Nicholas, Harwich, Burr. S. C. 171. and the distinction taken by Lord Kenyon C.J., Rex v. Wensley, 5 Term Rep. 154.
(1) Rex v. Chalbury and Chipping Farringdon, 2 Salk. 488. Per Buller J., Rex v. Kennelworth, 2 Term Rep. 598. Rex v. Corsham, 11 East, 388.; and see Rex v. King's Norton, 2 Salk. 401. Rex v. Fillongley, 2 Term Rep. 709. Per Lord Kenyon C. J., Rex v. Chilverscotton, 8 Term Rep. 178.
(2) Rex v. Ealing, Cald. 472.
they are removed (1), as it is also of the legitimacy of their issue thereby removed with them. (2) It is equally conclusive of a marriage, where the woman is removed as married, without her supposed husband. (3) From hence it follows, that it is conclusive of the derivative settlement of after-born children; for their settlement must depend upon the validity of their parents' marriage, and cannot be controverted without controverting the marriage, which has been already admitted. (4)
And if the woman be described in the order as the wife As wife conof A., it is conclusive of the husband's settlement (5), al- clnsive of hus
band's settle though it has not given her the addition of wife, provided ment. she is called in it by her supposed husband's name. (6) Likewise if she is removed as E. S., widow, it is equally So of widow. conclusive that her husband, if living, is settled in the parish. Because the order conveys a notice on the face of it, that the husband's settlement might come in question under it; for being removed as a widow, the presumption is, that she was removed to the place where her husband was settled. (7)
But an order unappealed from is only conclusive of the Concludes settlement of persons mentioned in it, and their families. only as to A man and his wife were removed from H. to N.; they tioned.
persons menhad a son at the time of the removal, who lived in a dwelling-house in N., which he rented separate and independent of his father : and he was not removed by, nor mentioned in the order, nor was he then any part of his father's family. Per Curiam, The order of removal unappealed from, is conclusive as to the father and mother, but not as to the
(1) Rex v. Silchester, Burr. S. C. 551. see Vol. I. Rex v. Binegar, S. P. Ibid. & 7 East, 377.
(2) Rex v. Northfeatherton, 1 Sess. Cas. 154. (3) See Vol. I.
(4) Rex v. Wodchester, Burr. S. C. 191. Rex v. St. Mary, Lambeth, 6 Term Rep. 615.
(5) Rex v. Hinxsworth, Cald. 42. Rex v. Leigh, Doug. 45. Cald. 59. Rex v. Ealing, ante, 142. (2)
(6) Rex v. Towcester, Cald. 497.
son, because he is not mentioned in it, and the sessions have expressly found that he was settled at H. (1)
To be conclusive must be prosecuted.
An order, to be conclusive, must be bona fide obtained and prosecuted.
Anorder abandoned concludes nothing.
If a parish obtain an order of removal, and then abandon it, consenting to take the pauper back, without giving the parish to whom it is directed the trouble of appealing, it concludes nothing. A party may give up a judgment intended for his own benefit. (2)
To be conclu- But to be thus final and conclusive, it must not be ex facie sive it must
null. It must appear on the face of the order, therefore, to not be ex facie null.
be made by two justices, having a competent jurisdiction. (3) Yet, it seems, that it is not permitted to the parish, against whom it operates, to show it void by circumstances, dehors the instrument itself, for they must, in such a case, appeal in the regular course of proceedings, or they are concluded by it. An order of removal from A. to S. was executed, and not appealed from. S. discovering that the paupers were settled in C. removed them thither. C. appealed, and relied upon the original order, unappealed from, as conclusive of the settlement in S. To repel which, S. proved, that this order, and the examination on which it was founded, were signed and taken by the two justices separately: and that one of them, although a magistrate for the county in which the order was made, took the examination, and signed the order at his own house, situate in another county. The court, after taking time to consider, were of opinion, that this order was only voidable, and not absolutely void, and therefore, as the parish of S. had not appealed against it, they were concluded by it. (4)
(1) Rex v. Southowarm, 1 Term Rep. 353.
(2) Rex v. Llanrhydd, Burr. S. C. 658. Rex v. Diddlebury, 12 East, 359. S. P.
(3) Rex v. Chilverscoton, 8 Term Rep. 178. ante, 142. (1)