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the appellants relied upon the judgment of this Court, quashing generally the former order, as an estoppel binding upon the parties to the present appeal

, until the effect of it was removed by evidence given on the other side to shex that it proceeded on a ground which prevented it from being conclusive. At that stage of the case the fourth question arises, which is, in substance, whether, when the appellants had proved that the former order was by this Court quashed generally, the respondents were bound to answer it by shewing that that decision proceeded upon some merely formal ground; and whether, until they had so done, the judgment of this Court was an estoppel. In Reg. 7. Church Knowle (7 Ad. & E. 471), an order of Sessions quashing an order of removal generally was held conclusive ; and Lord Denman, C. J., there said: “ Here the Sessions did not state that they quashed the order for want of form; they quashed it generally. Then what a door would be opened to injustice it in such a case, respondents might come a second time to the sessions, because on a former occasion they had left something, which they call a defect of form in their examinations, and had thereupon suffered the order to be quashed ;" and Coleridge, J., added, “If the order is discharged because the respondents do not choose to enter into their case, that is a quashing on the merits.” Primâ facie, therefore, the judgment of this Court was an estoppel, and the respondents gave no evidence whatever for the purpose of shewing upon what ground in point of fact it proceeded. (COLERIDGE, J:- Mr. Cowling contends that the judgment of this Court is explained and limited by the question submitted to it, and by the statement in the case that the order was to be quashed for deficiency in the examination, which deficiency may be merely formal.] The judgment of this Court becomes part of the judgment of the Sessions. [COLERIDGE, J.-What was the entry at the sessions?] There is none; after judgment upon certiorari in this court, no procedendo is neces sary; the record remains here. [LORD DENMAN, C. J.-Then we must look to what was done in this court.] The record remaining in this court contains the original order, the special case, and the judgment of this Court. [COLE RIDGE, J.—The fourth question is, whether the respondents were estopped by the judgment of this Court simpliciter ; upon that part of the case, there fore, you must contend that, upon the production of that judgment, the matter was concluded; but you only argue that that would be so unless further evidence was given.) The question is put with reference to the facts found; and the question in effect is, whether the Sessions ought to have held the respondents estopped at the moment when the objection was taken. They ought so to have held. If the judgment of this Court is taken to be a general quashing of the former order, then Rex v. Wick St. Lawrence (5 B. & Adol. 526) is a distinct authority to shew that such judgment is prima facie evidence that the pauper was not settled in the appellant parish. If it be taken that the former order was quashed for deficiency in the examination, the same result would follow; because that insufficiency must be assumed to relate to the point of settlement, unless those who are interested in so doing shew the contrary. In Ex parte Ackworth (3 Q. B. 397, a, 399), Patteson, J., said, “ There is no doubt here that the decision of the Sessions was touching the settlement. When the examination actually omits some fact material to shew the settlement, it is just the same thing as if the evidence produced by the respondents on the hearing were insufficient to prove that fact, and the parties failed on that account. It appears to me that the decision of the Sessions, quashing an order on account of an examination being defective in such a respect, will be conclusive as to the settlement ;" and the same doctrine was laid down and acted upon in Reg. v. St. Mary, Lambeth (7 Q. B. 587; 1 New Mag. Cas. 359), although the Ses

sions had treated their former order as not conclusive. Reg. v. Ellel (7 Q. B. 593) is also a decisive authority to the same effect. [ERLE, J.-But is not the question simpliciter whether the order of this Court was an estoppel ? The Sessions, having all the materials before them, in effect say, “If the fact is open to us, we draw the conclusion that the decision in the former case was on a point of form; but if in point of law the judgment of the Court of Queen's Bench is an estoppel, then our order is to be quashed."] As far as the respondents' evidence goes, the order of this Court stands unexplained. [Erle, J.It is immaterial whence the evidence comes, if it proves the respondents' case.] But this first question as to the conclusive effect of the order of this Court arose before Mr. Naylor tendered his evidence as to the ground of that decision; and then comes the second question, whether that evidence ought to have been received, and if received, what is the effect of it. It cannot be doubted that that evidence was admissible. (Reg. v. St. Peter's, Droitwich, 16 L.J. M.C. 38; 2 New Mag. Cas. 68.) (LORD DENMAN, C. J.-Did the Sessions decide, in point of fact, whether the decision had proceeded on a matter of form, or not?] No; if the Sessions had received the evidence, and then had decided that the order had been quashed for want of form only, there might have been more ground for the argument on the

other side ; but the ground which the Sessions took does not appear; and in Reg. v. St. Mary, Lambeth, the decision of the Sessions upon this point was overruled by this Court. (LORD DENMAN, C. J.

- The examination now states that the whole rent was paid ; the examination in the former case would have been satisfied if A. only had been paid.] Yes; that touches the point of settlement; and the Sessions are bound by the former judgment of this Court. Indeed, if the evidence of Mr. Naylor was admissible, it is conceded by the case that the former decision was on the point of settlement; and it is too much to say that although a decision has taken place on the point of settlement, it is still open to the Sessions to decide that it shall not be conclusive upon the parties. T'he principle is well settled, that a right once litigated and decided between two parties cannot again be brought into controversy between them. (Doe v. Wright, 10 Ad. & E. 763, 779.) The other objections stated in the case are of inferior importance, and it is not thought necessary to argue them.

LORD DENMAN, C. J.-It is quite clear that the former judgment of this Court was primâ facie an estoppel, binding on the parties; but then it was open to the respondents to shew that the former decision proceeded on a mere matter of form. No evidence, however, .was offered by the respondents for that purpose; but the appellants offered evidence, by which they undertook to prove that the decision was on a matter of substance, and that it proceeded upon a defect, which we thought the Sessions had properly held to render the examination insufficient; and I am of opinion that the only question is whether that was a substantial defect, or one of form. Now if the Sessions held that they were not bound by the former judgment of this Court, because it was on a matter of form only, I think that ought to have been found by the Sessions as a fact; it was the duty of the Sessions to say that the defect in the examination upon which the judgment proceeded was a matter of form ; that is the least which ought to have been done by the Sessions; but it was not done. Even if they had held it to be matter of form, but had left that question to this Court, some of the cases are strong to shew that the defect in question was one of substance, and not of form. The examination may have been defective in not proving a fact which may not have existed; and so in all cases, that which may appear to be a verbal quibble, may go to the very truth of the case ; and the apparently verbal defect may arise from a consciousness

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that the fact did not exist. We can only look at the judgment of the Court below. That Court has the opportunity of pronouncing a final judgment, subject to our opinion upon any question which they may submit to us; but here they have found only that the order was discharged for the insufficiency of the examinations, and as, the order being discharged on the insufficiency of the examinations, it is left doubtful whether that was a decision on a matter of form, I see nothing in this case to interfere with the decisions which we have come to in other cases.

COLERIDGE, J.-I am of the same opinion. The only question on which we have now to decide is the effect of what passed regarding the former decision of this Court, or of the Quarter Sessions. I say of this Court, or the Court of Quarter Sessions, because the judgment of this Court was that the order be quashed generally; that of the Sessions, such as to amount to a general quashing; it was a quashing for insufficiency of examinations, and Mr. Cowling admits that that would be the same for this purpose as a general quashing. Now it appears that the respondents put in evidence the former order and the judgment of this Court quashing it generally. The appellants thereupon contended that the respondents were estopped from shewing any settlement in the appellant parish ; but the Sessions held that they were not so estopped, and I think that in so holding they were quite right; because it was then open to each party to inquire into the real ground of that decision; but when the Sessions had pronounced that judgment, one would have thought that the obvious consequence must have been that it would have been permitted to one side to explain the decision as one of mere form, or to the other to establish it as a decision on the substance of the case ; but the Sessions seem to have thought otherwise, and they would not admit the evidence. In so doing I think they were clearly wrong. It was, however, admitted, and is properly found in the case, that, supposing the evidence to be admissible, the effect of it was, that the decision did proceed on the insufficiency of the examination respecting the point of settlement; thus the question is raised, whether that imports a decision upon form or upon the merits; and I am of opinion that it imports a decision on the merits. It is a decision on a failure of evidence as to a point material to prove the settlement. The Court of Quarter Sessions is now strictly a court of appeal. Before the recent Act, those who were in the habit of attending sessions at that time will recollect that though in form it was a court of appeal, it was in truth an original court, and the litigant parties were not then tied down to the same questions as had been agitated before in the court below; but the effect of the late alteration of the law has been to make the Court of Quarter Sessions strictly a court of appeal; it has now to decide only whether the justices have come to a correct decision, and whether they removed properly upon the grounds of removal brought before them. Now, in the former case we could not but see that there was a defect in the evidence upon which the magistrates acted, for the statute requires the rent” to be paid, and the examination stated only that rent was paid. I should be sorry if this defect arose from a mere mistake in drawing up the examination; but it was quite clear that the magistrates decided on insufficient evidence; and therefore the Sessions could only decide against the order. Upon a trial in the superior courts, a deficiency of evidence may be cured by withdrawing for the time, and submitting to a nonsuit ; but on the trial of these appeals there is no such course of proceeding; and, in order to remedy that defect, Courts of Quarter Sessions have been in the habit of quashing orders “ for informality,” or “ not upon the merits;" and if the decision be so expressed, then this Court will not

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interfere with the effect of such an entry; but if that is not done, and this Court is remitted to inquire what was the ground of the former decision, then a decision on the ground of a deficiency of evidence before the removing magistrates, as to the point of settlement, is held to be a decision on the merits, which is binding and conclusive on the parties to the appeal.

Wightman, J.-By some accident no paper-book in this case has reached me; and I do not think, therefore, that I possess sufficient materials to enable me to pronounce any judgment upon it.

ERLE, J.-I concur in the argument of Mr. Cowling as to the fourth question submitted to us. I am of opinion that the order of this Court simply quashing the former order was not conclusive, was not an estoppel upon the parties, but that evidence was admissible to explain the ground upon which it went. Therefore I should answer the fourth question in favour of the respondents; but the fifth is different. The appellants, after the order of this Court had been given in evidence, tendered evidence, which, according to the admission of the case, would shew that the former judgment had proceeded upon a deficiency in the examination respecting the point of settlement; and the question submitted to us is whether that evidence was admissible; and if admissible, whether it was sufficient to prevent the respondents from supporting their present order. Now I am clearly of opinion that it was admissible, if the appellants chose to give it; and as to its effect, it is certainly a matter of regret that a question of this sort should be decided upon the construction of words so slightly varying from strict accuracy; but it was a decision which really went to establish a defect in the examinations as to the point of settlement; and when a matter has once been settled by the decision of a competent tribunal, it is the greatest of all evils to disturb that decision. To the fifth question, therefore, I answer that the evidence was admissible, and that the defect upon which the former judgment was grounded was one of substance. At the same time I cannot help observing that, in case of mere verbal defects, substantial justice may be done by acting upon the practice referred to by my brother Coleridge, and by entering on the proceedings that the order has been quashed for informality, so that afterwards the real truth of the matter may be investigated; for I cannot at all concur in the remark of Mr. Hall, that there are no merits in settlement cases. The real truth and justice of the matter is just as discernible in them as in any other cases, and in the present instance it was never doubted for a moment that in truth the pauper was settled in the appellant parish; though upon a point of mere verbal construction the examination was defective.

LORD DENMAN, C. J.-I do not at all differ from the observation of my brother Erle, that when the Court of Quarter Sessions can clearly see that the defect is one of mere form, they ought to give to the failing party the opportunity of litigating the question again upon its merits.

COLERIDGE, J.-Perhaps I spoke unguardedly when I said simply that the Court of Quarter Sessions was strictly a court of appeal ; undoubtedly it is so, and the parties are confined to the same questions as were litigated in the Court below; but I ought to have added, that they are at liberty to adduce additional evidence at the sessions, or may prove the same facts by different witnesses.

Rule absolute to quash the order of Sessions. A. B.


Michaelmas Term.-November 20, 1847.

Settlement by renting a tenement-Yearly tenancy-Stat. 6 Geo. 4, c. 57.
The pauper occupied for four years (during which time he was rated and paid his rent and tates)

a tenement, at a rent which exceeded 101. a year, under an agreement, whereby the landlord agreed to let, and he agreed to take, the tenement" for one week certain," " at the weekly reri of 48., payable daily if demanded.The agreement contained provisions, that in case the tenant should remove goods off the premises without giving three days' notice to the landlord, the land. lord might follow them, and distrain either for a whole quarter's rent, or any part of a quarter; the tenant should not underlet without leave; that the tenant should be allowed fair wear and tear of the premises ; that the landlord should be at liberty to take forcible possession if the tenan should shut up and abandon the premises ; and that six calendar months' notice to quit should be

given by either party :Held, that this did not shew a taking for the term of one whole year, within stat. 6 Geo. 4, c. 37, 80 as to confer a settlement upon the tenant,

PON appeal against an order of two justices for the removal of Thomas

Stephens, his wife and children, from the parish of St. Margaret, Westminster, to the parish of St. George, Bloomsbury, both in the county of Middlesex, the Court of Quarter Sessions confirmed the order, subject to the opinion of this Court upon the following case.

The settlement of the pauper was admitted to be in the appellant parish, and the appellants relied upon a subsequent settlement gained under the

following circumstances. On the 2nd day of November, 1840, the pauper, Thomas Stephens, hired a separate and distinct dwelling-house in the respondent parish by the following agreement, which was produced and proved.

6 Landlord to Tenant. “ Memorandum of an agreement made this 2nd day of November, 1840, between Butler Adolphus Lewer, of the one part, and Thomas Stephens, of the other part. First, the said B. A. Lewer agrees to let, and the said T. Stephens agrees to take, the house and premises known by (sic) No. 1, Ship Court, now in the tenure or occupation of, &c., for one week certain from the 16th instant, at the weekly rent of four shillings, payable daily if demanded, clear of land, sewer, and all other taxes and deductions whatsoever. And the said Thomas Stephens doth hereby covenant and agree with his said landlord, that he will not let the said house without first obtaining leave so to do in writing of the said landlord; and doth hereby agree to leave the said house and premises in a good a state of repair as the same is now (fair wear and tear only allowed); and on failure, to pay for the repairs that the said landlord shall be put to by reason of the damage so done to the same (sic). Also, that he will not move off the goods in the said premises without first giving at least three days' notice in writing of his intention so to do, or paying or settling the payment of the rent of the said premises at least three days before moving the said goods.

And that in case he should move off without giving such notice, it is hereby agreed that the said landlord, or his agent, shall have a right to follow and distrain the said goods and chattels at any time, either for a whole quarter or a part, or so much as shall be due, the same as if a quarter was due; and if he should move of and shut up the said house and premises, or abandon the same, it is hereby agreed that the said landlord shall have a right, by himself or agent, forcibly of otherwise to enter and take possession, and hold and let the same, as if no such

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