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The 8 &9 W.III. c. 30. extended only to give the costs and charges in the law upon appeals against orders of removal. But heavy expences might, and usually were incurred by the parish to which the removal was made, in maintaining the paupers, until the appeal was determined.
c. 7. 8. 9.
To remedy this grievance, it was enacted by 9 Geo. I. Maintenance c. 7. s.9. “ that if the justices of the peace shall, at their given, 9 Geo.I. quarter sessions, upon an appeal before them there had concerning the settlement of any poor person determine in favour of the appellant, that such person or persons was, or were, unduly removed, that then the said justices shall at the same quarter sessions, order and award to such appellant, so much money as shall appear to the said justices to have been reasonably paid by the parish, or other place, on whose behalf such appeal was made, for or towards the relief of such poor person or persons, between the time of such undue removal, and the determination of such appeal.” &c. (1)
The 9 Geo. I. c. 7. is imperative upon the quarter ses. Sessions must sions to allow the costs of maintenance to the appellant, award main
tenance, and where the appeal is decided for him (2); and the justices cannot direct cannot direct, that such costs shall abide the event of
it to abide the
event of a other appeal.
(1) As to the proceedings to obtain costs, when an order of removal has been suspended, and there is an appeal to the sessions under 55 Geo. III. c. 131. s. 2., see that act, and ante, 372., and note (1). The 9 Geo. I. c. 7. 8. 9. empowers the justices at the sessions to allow to the appellant parish, such sums as have been expended in maintaining the persons mentioned in the order, “ between the time of the undue removal, and that of deciding the appeal.” It seems, therefore, as if the sessions could not, upon allowing the appeal, include, by virtue of this act, a sum paid to the removing parish for maintenance under a suspended order by virtue of 35 Geo. III. c. 101. Sed quære, and that such costs may be made the subject of an appeal. See ante, 489.
(2) St. Mary, Nottingham, v. Kirklington, 2 Sess. Cas. 67. See ante,
An order of sessions, therefore, directing that the costs of maintenance of the said s. M. since the time of the removal to the said parish of K. shall abide the event of the cause, in case the said parish of G. C. shall think proper, by another order, to remove the said S. M. to the said parish of K., and the inhabitants of K. appeal to this court from the same," was quashed, as to this part, in the court of king's bench. (1)
Remedy to If the sessions refuse to give costs where the statute is sions to give imperative upon them to do so (2); or if, having a disere.
tionary power to grant or deny them, they refuse to bear evidence to guide that discretion (3), the remedy is by application to the court of king's bench for a mandamus, commanding them to allow costs in the first case, and to hear evidence in the second. And it is said, that this mandamus should not be presented to the justices at large but to those who were present at the sessions when the appeal was heard. (4)
Remedy to As to the means of recovering costs awarded by an orcompel party der of sessions ; 8 & 9 W.III. c. 30. s. 3. enacts, in case to pay costs. 1. Where by of appeals against orders of removal, “that if any perdistress.
son ordered to pay such costs shall live out of the court's jurisdiction, it shall and may be lawful for any justice of the peace of the county, &c. wherein such person inhabits, upon request, and a true copy of the order for the payment of such costs produced and proved by some credible witness upon oath, by his warrant under hand and seal, to cause the money, mentioned in that order, to be levied by distress and sale of the person's goods that is ordered, and ought to pay the same; and if no such distress can be had,
(1) Rex v. Great Chart, Burr. S.C. 194.
(4) Rex v. Justices of Nottingham, i Sess. Cas. 422, where a man. damus is said to have been quashed for this exception, after a retura had been made to it.
to commit such person to the common gaol of that county or liberty, there to remain twenty days."
The 17 Geo. II. c. 38. refers to the same method for the recovery of costs upon appeals, against rates. (1) In both instances, the legislature has confined the remedy by distress to cases where the person ordered to pay costs lives out of that court's jurisdiction by whom the order was made. (2)
But it has been held, that an indictment will lie for Remedy by
indictment. disobedience to an order of sessions, whereby costs are directed to be paid by the defendant, upon dismission of his appeal to a poor's rate (3); as also that the act, concerning costs, extends to the limited jurisdiction of St. Alban's. (4)
(1) See Rex v. Justices of Essex, ante, 477. (3). But Rex v. Byce, 1 Bott, 332. Pl. 362, seems contra.
(2) Rex o. Boys, Say. Rep. 108. ibid. 143.
(5) Rex v. Boys, Say. Rep. 108. Upon a motion to quash the indictment, S.P. determined upon demurrer to the same indictment, Rex o. Boys, Say. Rep. 143. S. C. by the name of Rex v. Byce, 1 Bott, 332. Pl. 362.
(4) Rex v. Byce, ibid.
Of the Effect of an Adjudication by the Sessions, upon an
Appeal against an Order of Removal.
It has been already shewn, that an order of removal unappealed from, concludes the parish upon which it is made as against the world, unless it be ex facie void. (1)
9 Also, if the sessions, upon appeal, confirm an order of removal by two justices, it is final upon the parish charged as to all parishes whatsoever. But where they discharge an order of two justices, it only binds as between the contending parishes. (2)
Effect of the rule upon settlements.
The effect of this rule is, that parishes which are ordered to keep paupers, in the two first cases, cannot remove them elsewhere, and must receive them from any other parish, unless they can prove a subsequent settlement.
Order quash. But an order quashed on an appeal is only conclusive et only con- between the contending parishes. The respondent parish, cludes between the therefore, may send the same paupers to any other contending parishes.
parish (3), and such third parish may send them back to the parish to which the first order of removal was made. For, per Lord Hardwicke, C.J. – An order of reversal is conclusive only on the parishes concerned, and not on all other parishes: this is reasonable; for a third parish may be able to give better evidence than had been given by the
(1) Ante, 142. et seq. ib. 233.
(2) Per Lord Hardwicke C.J., Rex v. Sarratt, Burr. S.C. 73. 2 Bott, 693. Pl. 754. Mynton v. Stony Stratford, 2 Salk. 527. Harrow.. Rislip, 5 Salk. 524. post, (3).
(3) Harrow v. Rislip, 2 Salk. 524. 2 Bott. 690. Pl. 748.
former parish ; and why should one parish be concluded by the insufficiency of the evidence given by the other? It may be collusive; it is at least res inter alios acta, and should only bind the contending parties. (1)
But the session's decision upon an order of removal, even Adjudication between contending parishes, is conclusive only where it of session only expressly decides the fact of the pauper's settlement. If when made the order is quashed for want of form, the same parish upon the
. may remove a second time to that which has succeeded in the appeal. (2)
Thus where two justices removed a pauper from S. to Instances : B.; B. appealed to the sessions, and the appeal was allow- appeal allow
ed, but origied, because the inhabitants of S. did not produce the order, nal order not and S. was ordered to pay costs. It was held that two quashed. justices were not precluded, by the allowance of this appeal, from again removing the pauper from S. to B. For the sessions only allowed the appeal, and an allowance of the appeal is no quashing the order of the two justices. The sessions only declare that the appeal was proper, but they give no judgment one way or other (3), i.e. upon the pauper's settlement.
So also where the pauper, a certificate man, was removed Order quashed
because a cerbefore he was actually chargeable; and the order was ap- tificate man pealed from, and discharged generally by the sessions. He was removed was removed a second time; and the sessions, upon a
able; a subse. second appeal, confirmed the second order, and stated quent order
(1) Cirencester o. Coln, St. Aldwin's, Burr. S.C. 17. Mynton v. Stoney Stratford, 2 Salk. 527, Swanscombe v. Shenfield, ib. 492. Rex v. Bentley, Burr. S. C. 425. Rex v. Bradenham, Burr. S. C. 394. Beddingham v. Kingston Bowsey, Carth. 516. 2 Salk. 486. That an orđer quashed is conclusive between the contending parties. Rex v Leigh, Cald. 59. And see ante, 232. et seq.
(2) Rex v. Bishop's Walton, Fol. 275. Rex o. St. Andrew's, Holborn, 6 Term Rep. 615. Where the first order was quashed for a defect in the adjudication of the pauper's settlement. (3) Rex v. Sarrat, Burr. S.C. 73.