Quære, if

sessions may refuse costs.

Cannot award costs unless the appeal against a rate is tried.

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

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

But it has been decided, that the quarter sessions have no authority to award costs under this act, unless an appeal has been entered and determined; for the determination 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.

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 deter

mined.

c. 7. s. 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)

tenance, and

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 mainwhere the appeal is decided for him (2); and the justices cannot direct, that such costs shall abide the event of another 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 35 Geo. III. c. 131. s. 2., see that act, and ante, 372., and note (1). The 9 Geo. I. c. 7. s. 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 55 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,

cannot direct

it to abide the event of a

presumed appeal.

Remedy to compel ses

costs.

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)

1

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 discretionary power to grant or deny them, they refuse to hear 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

compel party to pay costs. 1. Where by

distress.

As to the means of recovering costs awarded by an order of sessions; 8 & 9 W. III. c. 30. s. 3. enacts, in case of appeals against orders of removal, "that if any person 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.

(2) St. Mary, Nottingham, v. Kirklington, ante, 575. (2).
(3) See Rex v. Justices of Essex, ante, 574. (3).

(4) Rex v. Justices of Nottingham, 1 Sess. Cas. 422. where a mandamus is said to have been quashed for this exception, after a return 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 v. Boys, Say. Rep. 108. ibid. 143.

(3) Rex v. Boys, Say. Rep. 108. Upon a motion to quash the indictment, S.P. determined upon demurrer to the same indictment, Rex v. Boys, Say. Rep. 143. S. C. by the name of Rex v. Byce, 1 Bott, 332. Pl. 362.

(4) Rex v. Byce, ibid.

VOL. II.

Order quashet, only concludes between the contending

CHAP. XXXIX.

Of the Effect of an Adjudication by the Sessions, upon επι
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)

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)

cases,

The effect of this rule is, that parishes which are ordered to keep paupers, in the two first cannot remove them elsewhere, and must receive them from any other parish, unless they can prove a subsequent settlement.

But an order quashed on an appeal is only conclusive between the contending parishes. The respondent parish, therefore, may send the same paupers to any other 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. 253.

(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. e. Rislip, 5 Salk. 524. post, (3).

(3) Harrow v. Rislip, 2 Salk. 524. 2 Bott. 690. Pl. 748.