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Order to dismiss appeal.

When an appeal is dismissed upon the merits, the original order is generally confirmed, because the respondents to succeed must have established all the material facts stated in the order, of which the place of settlement

is one.

2. Form of or- If an appellant succeeds in his appeal against a rate, ders on rates. the judgment is to allow the appeal, and either to quash When appeal or amend the rate, as the case requires. If amended, the allowed.

amendments should be specifically stated in the order. Such as, that the name of some person omitted to be rated be inserted; or that of the appellant, if improperly inserted be struck out; or that the sum at which any person is assessed be altered; and the order should go on to direct, that this alteration, whatever it be, be made “forthwith” in the rate by the officer of the court.

May order rate not to be paid.

And now by 41 Geo. III. c.23. sect. 3. the sessions, when a rate is quashed, may direct by their order that the sums assessed on particular persons, or any part of it, shall not be paid, which is necessary in some cases, in order to stop the commencement or continuance of proceedings to enforce payment.

Sect. 8. or to be repaid.

Also by sect. 8. of the same statute, if the court shall order the names of any persons who have paid the rate previous to the hearing of the appeal, to be struck out of the rate, or their assessments lowered, their order must further direct, that such sums as ought not to have been received by the parish officers shall be repaid by them to

the party.

If the court are of opinion that the appeal is made without foundation, their judgment is to dismiss the appeal,

Where dis. missed.

defective on the face of it, a special entry seems unnecessary, although it may be safe to make it. For in such a case it shall be intended that it was reversed, for a defect in form. Sce South Cadbury v, Braddon, 2 Salk. 607. and post, 615. (2).

and confirm the rate. 17 Geo. II. c. 38. s. 6. enacts, “ that if, upon appeal from the whole rate, it should be found necessary to quash or set aside the same, then, and in every such case, the said justices shall, and are hereby required to order and direct the church wardens and overseers of the poor to make a new equal rate or assessment.” But whether this clause is to be considered only as directory, so that an omission of the direction to make a new rate does not affect the order at all; or whether it vitiates it in toto, or leaves it valid pro tanto, are questions which have not been judicially considered.

The judgment should be direct and positive. An order Orders cannot of sessions drawn up specially, for the purpose of obtain- be conditional. ing the opinion of the court, concluded, “ and if the court should be of opinion, then,” &c. This was held naught; for the justices ought to determine one way or other, and not to make a special conclusion referring to the court; but it was referred to the judge of assize. (1) So also where the sessions, upon hearing an appeal against an order of removal, were equally divided in opinion, and stated a case for the determination of the court of king's bench, but neither affirmed nor discharged the original order; the court of king's bench refused to give judgment, and sent the case back to sessions, that they might affirm or discharge it. (2)

Sect. V.

Of the Costs and Maintenance to be awarded by the Sessions

in Appeals.

THE 8 & 9 W.III. c.30. s.3. for the more effectually 8&9W.III.

Costs b preventing vexatious removals and frivolous appeals, c. 30.

on appeals enacts, that the justices, at their general or quarter ses- against remosions, “ upon any appeal before them, there to be had concerning the settlement of any poor person, or upon any proof before them, there to be made of notice of any such appeal to have been given by the proper officer to the churchwardens or overseers of the poor of any parish or place (though they did not afterwards prosecute such appeal), shall, at the same quarter sessions, award to the party, for whom and in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given as aforesaid, such costs and charges in the law, as by the said justices in their discretion shall be thought most reasonable and just, to be paid by the church wardens or overseers of the poor, or any other person against whom such appeal shall be determined, or by the person that did give such notice as aforesaid.”

vals.

(1) Anon., 2 Salk. 486.
(2) Rex v. Kniveton, Burr. S.C. 199. See post, 605.(1).

Costs usually allowed.

The words of the statute seem imperative upon the magistrates, to allow some costs where an appeal is heard, or notice of appeal has been given against an order of removal.

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The following case, however, is reported: “A mandamus was directed to the justices to give costs to the party, in whose favour the appeal had been determined.” But, upon the return, the court held it reasonable for them to have the power of judging, whether costs should be allowed or not, and quashed the writ of mandamus. (1)

(1) Rex o. Justices of Nottingham, 5 Geo. I. 2 Bott, 748. Pl. 841. The subject of this appeal does not appear by the report. But as it was prior to stat. 17 Geo. II. c.38. which first gives costs in appeals against poor's rates, it seems to have been an appeal against an order of removal. If this be the same case as is reported, Rex v. Justices of Nottingham, 5 Geo. II. Sess. Cas. 422., it is there stated to have been an appeal against an order of removal, and that the justices had allowed 50s. for costs and maintenance, and the court only determined, that tbe justices had a discretionary power as to the sum to be allowed, and not that they had power to refuse costs altogether. It is to be observed, likewise, that the words of 9 Geo. I. c. 76. which enacts, that the justices shall award the sums intended for the pauper's maintenance, are It is usual, however, for the sessions to allow some costs. But, as they have a discretionary power over the amount, it is customary to give 40s. unless the case has been accompanied with circumstances of vexation or fraud.

It was held by a judge sitting at nisi prius, where the Quære, if parish officers, against whom costs were awarded, paid recovered

costs can be them, and afterwards the order of removal was removed back if order into the court of king's bench by certiorari, and quashed :

quashed ? that they could not recover them back again from those by whom they were received, upon an action of indebitatus assumpsit. (1)

An order for costs need not set forth that so much was form of an expended or laid out (2): and the sessions cannot give costs order for costs. on the mere adjournment of an appeal. (3)

17 Geo. II. c.38. s. 4. enacts, that in cases of appeals 17 Geo. II. against poor's rates, the justices“ may award to the party, peal against a for whom such appeal shall be determined, reasonable costs, rate. the same manner that they are impowered to do in cases of

similar to those of 8 & 9 W. III. c.30. respecting costs; and it has been determined, that the words of 9 Geo. I. are imperative so as to make it necessary for the sessions to award the costs of maintenance where they have been incurred, and the appeal is allowed. St. Mary Nottingham v. Kirklington, post, 575. (2). Ideo quære.

(1) Mead v. Death and Pollard, i Lord Raym. 742, Decided by Tracy Baron, Chelmsford Lent assizes. Quære, tamen the reason of this decision. The reporter adds, “ But note also, that the costs were paid by the church wardens and overseers, and this action was brought by the church wardens alone.” And by the opinion of Lord Ellenborough C.J.,“ It is a consequence of law, that the money paid upon an order which is afterwards vacated in whole or in part should be refunded by those who have received it, and if it be not repaid, an action for money had and received would lie to recover it back again." Rex v. Bradford, Mich. 48 Geo. III. 9 East, 97.

(2) This was an order for costs upon 9 Geo. I. c.7. Maiden Bradley v. Wallingford, Fol. 247.

(3) Rex v. Stansfield, Burr. S.C. 205.

appeal concerning the settlement of poor persons,” by stat. 8 & 9 W.III. c. 30.

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The word "s

may" seems to give the court a discretionary power to award or refuse costs to the party for whom the appeal is determined. (1)

Cannot award But it has been decided, that the quarter sessions have costs unless

no authority to award costs under this act, unless an apthe appeal against a rate peal has been entered and determined; for the determinis tried. ation of the appeal is a condition precedent to their

power to give costs, the words of the act being, “ may award to the party for whom such appeal shall be deter. mined reasonable costs,” &c.; and the subsequent words, “ in the same manner as they are impowered to do in cases of appeals concerning the settlement of poor persons," &c. only relate to the mode in which those costs are to be recovered (2). The court, therefore, refused a motion for a mandamus to the justices commanding them to hear evidence, for the purpose of giving costs against one who, having given notice of appeal against a poor's rate, countermanded it the night before the sessions. (3)

Where the court of quarter sessions give costs to the party appealing against a rate, it should ascertain the precise amount, for if their order directs, that “ the costs of the appeal shall be taxed by the clerk of the peace,” it is bad as to that particular. (4)

(1) Quære tamen, see Rex v. Barlow, 2 Salk. 609.
(2) See post, 577.
(3) Rex » Justices of Essex, 8 Term Rep. 583.

(4) Rex v. Wargrave, Trin. 45 Geo. III. The costs in this case were, in fact, taxed by the deputy clerk of the peace. But the reason of the determination seems to apply not less to the principal than to his deputy. For which, see ante, 312. (5). Rex v. Townshend, ante, 468. (1); and the same point admitted likewise in Rex v. Sweet, Mich. 48 Geo. III. 9 East, 25.

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