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to return all the orders they make to the sessions, where they ire to be recorded. 1 Strange, 470.
But by 13 Geo. 2. c. 18, no certiorari 4 shall be granted, 'to remove any conviction, judgment, order, or other proceed. 'ings, before any justice of the peace, or the general or quarter 'sessions, unless it be applied for in six calendar months after 4 such proceedings had; and unless it be duly proved upon 'oath, that the party suing forth th» same hath ^iven six days 'notice thereof in writing* to the justices before whom such 'proct-edings have been, to the end that such justices or 'the parlies therein concerned, may show cause if they so 1 think fit against issuing the certiorari.'
And hy 5 Geo. 2. c. I9.no such certiorari ' shall bo allowed, 4 unless the party prosecuting, before the allowance thereof, 'enter into a recognizance, with sufficient sureties, before a 1 justice of th« county or p!ace,or before the justices at sessions 'where such judgment or order shall have been given or made, or 'before a justice oflhe King's Bench, in 601. with condition to 'prosecute the same ;-.t his own costs and charges with effect, 'without wilful delay; and to pay the party in whose favour * the judgment or order was made, within a month alter the tamo 'shall be confirmed, his full cosla, to be taxed according to the | 'course of the Court where such confirmation shall be.—And 'it he shall not enter into suuch recognizance, or shall not per'form the conditions,the jostites may proceed and make sucji fur'ther order for the benefit of the party lor whom the judgment ,' shall be gives in such manner as if no certiorari had been 'granted ; the said recognizance to be certified into the King's '/ienc/i, aud there filed, with the certiorari and order or 'judgnent removed thereby. And if the order or judgment 'shall be confirmed by the Court, the person entitled to the
ncosts, for the recovery thereof, within ten days after demand made upon oath of such demand and refusal of payuicut, shall have an attachment granted for the contempt; and the recognizance not to be discharged till the costs arc paid and the
er complied with.' If a sessions case be sent down to be rc-stated, and thfe proctor abandon it when it is returned, the Court of King'* will discharge his recognisance for the costs; but if ho to the amended order, they will not.—Thus in the A. v. ewvrth Hit. 31 Geo. 3, on the argument of this settlement +, the Court, not being satisfied as to one fact, sent it "totothc sessions to be re-stated.—The Sessions according. lj stated that fact, and returned the case here, when the order ^ sessions was confirmed, without hearing any argument, though the counsel on both sides were instructed and prepared tu argue it. It w as now moved on the part of the parish of
of such notice see the precedent 11. under tille t See Ibis case in p. 88.
Edgeveorth, to discharge their recognizance to pay costs, on the ground that their objection to the order of sessions, as it was originally stated, was well founded, and that consequently the other parish would not have been entitled to the costs, if the Court had given judgment on that case.—But The Codrt said, that the parties suing out the certiorari are not liable for the costs, if, when the errors are corrected, they abandon the prosecution; but that in the present case the parish of Edge, uotih had not abandoned the pursuit after the case was restated, but hail taken the chance of the judgment of the Court being given in their favour when it came on a second time; and therefore they ought to pay costs. 4 Term Rep. 218.
Otden unap. An order of removal, itnappealedfrom, is final andconclosiTt.
ptNiiul from. —'i'nug jn Malendine v. llunsdon, Hit. 12 Ann, two justices, on the 20th of June, removed a pauper to llunsdon, and two justices there sent him back by an order to Malendine, on the 24th of July, which order was confirmed upon the appeal of Malendine at the sessions. The Court now quashed the order of the 24th of July, because they ought to have appealed, and_ not to have sent the pauper back ; and held the order of the first twojustices good,because there was no appeal from it. Fofcjr,316.
So in the A. v. North Feather ton, Ea. 5 Geo. 2, two justices made an order by which they removed a man, his wife, and four children naming them, to Feaiherlon, and there was no appeal: afterwards Featherlon finds out that this woman was not the wife, for that the man, though married to her, was married i before to another woman, and consequently the second mar. riage was totally void; and they remove the woman by her maiden name to Horsington, and the four children thither alto as bastards: Horsington appeals ; and the sessions, upon hear, ing the matter, state the case specially, that this woman and the four children were the same with the woman and children removed by the first order, and gave judgment that the first order was conclusive, and thereupon quashed the second order. —And by The Court. They have slipped their opportunity, and the first order not appealed against is conclusive. 1 Sets, Cas. 154.
If an order of removal, unappealcd against, be lost, parol evidence thereof ought to be admitted. This was decided in the case of the &. v. Melheringham, Hil. Ter. 36 Geo. 3, which was as follows: Two justices removed the pauper and his wife. * from Melheringham to Ruskington. The Sessions, on appeal, quashed the order, .subject to the opinion of the Court on the foHovying case :—The pauper being legally settled at Ruskington, was hired, on 9th May 1788, to a person of Bloxholm, to serve him in husbandry, from Old May Day then next, for a year, at the wages of bl. The pauper accordingly entered on his service; and during his continuance therein, his master's son, who then resided with his father, and assisted in looking after the farm was ballotted to serve in the militia; whereupon the • pauper, at the son's request, and with the master's ptivity? « consideration of a sum of money paid to him by the son, con. Milted to be sworn in as the son's substitute, and was sworn in accordingly, but still continued in his said service, and staved therein till within ten days of the expiration of hi* year, when tiie militia was called out, the pauper left his service to join the regiment, and the master deducted from his year's wages, for the days then wanting to complete the year's service. Some wan afterwards, the pauper being resident at Ruskington, was removed from thence by ah order of two justices to Norton; which order was unappealcd from ; and upon the hearing of the appeal now depedinng, the appellants dkl not produce the uid order of removal from Ruskington to Nocton, or the duplicate thereof, but proved by parol evidence, the existence of >uch former order, the pauper's removal, under the authority thereof, from Ruskington to Nocton, and the subsequent loss of the said order and duplicate, and that no appeal had ever been made against the same. It appeared also that it was not the practice in those parts to file orders of removal at the quarter sessions, which were not appealed against.—L'ird •■...•n/on,Ch. J. said. It was impossible to support any argument upon the case. The sessions have stated the existence of tin order at one time as a fact; and they have stated the evidence from which that conclusion was drawn, which was legal and sufficient evidence of it.—Order of sessions confirmed. 6 Term %>. 556.
And an order of removal unappealed against is conclusive, sot only in respect to the parties removed, but also as to ail derirativc settlements under them.
So in Nymptfield and tVoodchester, Mic. 16' Geo. 2, a man »nd his wife were removed from Nympsfield to Woodchesler, wi there n as nb appeal. They afterwards returned to Nympsfield, and had there three children, who were now sent from Sympifieldto IVoodchester, together with the father; and upon an apptal as to the children, it was offered to give in evidence, that the man had a former wile, and consequently the children born at Nymptfield were as bastards settled there.—The Ses. Sioxs refuted to let IVoodchester go into this evidence, being of opinion that IVoodchester was concluded by the first order un. appealed from, and that it made no difference that the children were born afterwards.—The Coukt, on debate confirmed both efders; for the marriage being established by the first, order, 'he settlement of the children, which is derivative, follows of course, and can no way be impeached, but by entering into the writs of the first order, which hath been acquiesced in; and nothing is more established, than that an order unappealcd from i= conclusive. <iStrange l\Ti. Burrow's Sett. Cas. 191.
So io the K. r. Hinxuorth, Ml. 18 (reo. 3, the pauprn ztre removed by an order dated the 17/A of June/rum Clieshum to Hioxworth ; and by another order, dated the SOth of October jctlusvig, they were removed back from Hinxworth k'Chuhuut. (Jhethunt appealed against this last order, but the sessions confirmed it as to the man, and discharged it as to his wife and children. The wife and children, howeTcr, soon afterwards returned to their husband and father at Cheshunt ; and by another order, dated the 20th of January, the children were removed from Chcshttnt to Hinxsorth. The parish of Hinxworth appealed from this order, and the sessions confirmed the order, except as to two of the chidrcn, who as nnrse children were not removeable.—By lord Mansfield. There is nothing at all in this case. 'The first order -unappcaled
* from is conclusive.' The parish of Hinxworth neglected to appeal at the time they were aggrieved, and their being too late now is their own fault. The first order, dated the 17th of June, was affirmed, and the two subsequent orders discharged. Cold. Cat. 42
So in the K. v. Silchester, IJil. 5 Geo. 3, a man and woman were removed from Nezsbury to Enborn as man and wife;
* and there was no appeal from the said order to the next or 'any other sessions.' A fterwards the parish of Enborn find, iirg that the woman was not his wife, removed her, by originil order, by the name Jane Moor single -woman, from Enborn to Silehesler. Silckester appealed. And upon hearing the appeal, it was proved that the said Jane 'never was married to
* the said man.' Therefore the sessions affirmed the order of la* two justices. But By The Coukt. The sessions order must be quashed; they said, that whatever the hardship might bs in this particular case; or how doubtful soever this question might be if it were res in/egra, yet its being fully settled, 'that an order of removal to a parish confirmed without appeal 4 to r.nch parish, concludes that parish against all the world.' was reason for them not to depart from it now; for that start decisit was always a good rule, and never more so, than in cases of settlements of paupers, where it would make the ut. most confusion if they should overturn settled determinations, which the justices all over England had been used to look upon, as the rules of their conduct in similar cases :' if she was not his wife, it might have been controverted; but as they have neglected to appeal, when they had a proper opportunity to shew it, they are estopped to say now. Burrow's Sett. Cm551.
Arid if there has fcecn an order of removal of a pauper and his wife, 'made upon the examination of the wife, tha parish to which the paupers were removed, cannot on a subsequent removal of the wife from their parish to a third, 'describing her as a single woman,' shew in evidence that the luariiage was null and void: for the first order of removal is goud upon the face of it; and according to the K. v Ikhes/er, conclusiveupon the question of marriage. The K. v. Ilinegar, Ea. Ter. ■4'0 Geo. 3. 7 East's Rep. 377. 3 East's Rep. 353.
So in the K. v. the Inltubilants of St. Mar if, Lambeth, Eu. Ter. 30 Geo. 3, which was as follows: — 1'wo justices reoioved Elizabeth, the wife of W. Fan; a soldier, and her three infant children, from St. Mart/ Lambeth, to Hunt spill in Somersetshire. On appeal, the sessions confirmed the order si far as it related to the wife, and quashed it as far related to the children, and stated the following case for the opinion of the Court: "The pauper was inr 178+, by an order of two justices, removed with, and as the wife of, a man, to whom be- . fore that time she had been married, and who, at the rime of such marriage and removal, passed and was known by the name of IV. Farr, from Stoke, under Hambden, to Hunttpill; which order remained unappeaied from." The counsel for the appellants offering to give in evidence that the man's real name «as IV. Ilaverfield, and that he was married to another wo. man by that name before his marriage with the pauper, which other woman was still living, and ready to be produced iu court; .'uch evidence was objected to by the counsel for the respondents, who contended that the parish of Hunt spill having received Elizabeth as the wife of IV. Farr, and not having appealed against the above order, ought not to be permitted to dispute her marriage; which objectiou being overruled by the court of sessions, it appeared by evidence produced, that the real name of W. Farr, was W. Ilaverfield, and that before his niirriage with the pauper, and removal with her from Stoke under Hambden, he was lawfully married to another woman sill living, and that after the removal from Stoke under Hamb«s,thcy left Hunt spill, and went and cohabited in St. Mart/, Lambeth: the infant paupers were born of the pauper Elizabeth during such cohabitation, and had done no act to gain a settlement.—Tiie Court said that the authority of Nym* field a=d Woodchester * was a direct decision in point; it being litre established that an order of removal unappeaied against ii conclusive, not only on the person removed, but also on all derivative settlements from them. The Court therefore confirmed the order of sessions, as far as respected the wife, and <Fiulted it as far as respected the children, so that the original order of the two justices was confirmed in toto. 6 Term Rep.6\5.
Therefore if a pauper be removed by an order of justices, he r^nnot be removed to a third parish until after the appeal.— Thus in the K v. Chipping Farringdon, Tr. 12 Will. 3, JS was removed by order of two justices from the parish of A in Heruickiltire to Chalbury in Oxfordshire, and from thence by order of two justices to Chi/pin* Farringdon in Berkshire. It is objected, that Chalbury ought to have appealed.—And by flolt, Ch. J. Sending the poor man to a third place is falsifyins the first-order, which cannot be done but by appeal; for the order of two justices is a determination of the right against *'! persons till it be reversed by appeal.—Therefore the order *» quashed. Salk. 438.