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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)

indictment.

But it has been held, that an indictment will lie for Remedy by 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.

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CHAP. XXXIX.

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)

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)

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.

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

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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)

conclusive

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 may remove a second time to that which has succeeded in the appeal. (2)

Thus where two justices removed a pauper from S. to B.; B. appealed to the sessions, and the appeal was allowed, because the inhabitants of S. did not produce the order, and S. was ordered to pay costs. It was held that two 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 before he was actually chargeable; and the order was appealed from, and discharged generally by the sessions. He was removed a second time; and the sessions, upon a second appeal, confirmed the second order, and stated

(1) Cirencester v. 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 order quashed is conclusive between the contending parties. Rex v Leigh, Cald. 59. And see ante, 252. et seq.

(2) Rex v. Bishop's Walton, Fol. 275. Rex v. 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. 75.

upon the

merits.

Instances: appeal allowed, but original order not quashed.

Order quashed tificate man was removed before chargeable; a subsequent order

because a cer

when chargeable, to the same place is

good.

removing him, specially, that the pauper had come into the parish under a certificate, and that the former order was had before the pauper became chargeable; but that, at the time of making the second order, he was become actually chargeable. The court affirmed these last orders of the justices and the sessions; for the two sessions' orders are very consistent with each other. The former sessions might discharge the former original order, because the paupers were not actually chargeable; and the latter sessions might confirm the latter original order, because they were become actually chargeable. Per Lee C. J.-The court are not at liberty to presume rights accruing subsequently, unless they do appear; but here it does appear the right did plainly accrue subsequently, by their actually becoming chargeable. (1). |

father's.

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Order on son's. Upon the trial of an appeal at the quarter sessions, the evidence of his respondent parish proved relief granted to the father of the pauper by the appellant while residing in the respondent parish, five years prior to the year 1815. The appellant, to rebut the presumption of the father's settlement, tendered an order of removal made in 1815, quashing an order of justices for the removal of the brother of the pauper to the appellant parish. And they tendered parol evidence to shew that the ground of the decision of the court of sessions was, that the pauper's father had not at that time any settlement in the appellant parish, and consequently that the son had no derivative settlement there. The court held, that even supposing parol evidence to be admissible to prove the ground of the decision, still, that the order of sessions was not evidence that the pauper's father was not settled in the appellant parish in 1815, because the father's settlement was a matter that arose collaterally on the trial of the appeal. (2)

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(2) Rex v. Knaptoft, 2 B. & C. 883.; and see ante, Vol. II. chap. xxvi. p. 146.; to which this case more properly applies. .

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Of removing Orders in the Court of King's Bench, and quash

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the court of be granted by King's Bench.

Ir seems agreed at this day, that regularly the court of Certiorarimay King's Bench, having a general superintendency over all other courts of criminal jurisdiction, whether they be of an ancient or newly created jurisdiction, may award a certiorari, as well as the court of Chancery, to remove the proceedings before any such court, unless the statute or charter which creates them expressly give them an absolute judicature exempt from such superintendency. (1)

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Original orders, therefore, made by one or by more justices, and those made by a court of sessions, either upon appeal or by original jurisdiction, may be removed by writ of certiorari into the court of King's Bench, unless the jurisdiction is taken away by express and positive words. (2)

(1), 4 Hawk. P.C. 144. book. ii, c. 27. See Rex v. Morely, 2 Burr. 104. Rex v. Eaton, 2 Term Rep. 89. Rex v. Sparrow, ib. 196. n. Rex v. J. Jukes, 8 Term Rep. 542.; and see Cates qui tam v. Knight, 3 Term Rep. 442.

(2) As to appeals against rates and overseers' accounts, 43 Eliz. c. 2. provides, that the order of the justices in sessions shall ❝ conclude and bind all the parties;" and 17 Geo. II. c. 38. s. 4. directs, that" they (i. e. the justices) shall hear and finally determine the same." 9 Geo. I. c./7.8.8 uses the same words, viz. that the justices shall "finally determine" appeals against orders of removal. But the superintending jurisdiction, by the court of King's Bench, is not taken away in any of these cases, see post, 588.

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To remove Upon appeal. orders original.

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