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Hilary Term.-January 20, 1847.

[wood's SETTLEMENT.] Estoppel-Conclusiveness of former order Quashing not on the merits. The Sessions, on appeal, ordered an order of removal to be quashed, "not upon the merits, and without prejudice to the making any other order for the removal of the said G. W. (the pauper) from either of the said parishes to the other or to any other to which he may be removable." Upon a subsequent appeal between the same parties-Held, that the former order was not conclusive as to the settlement, and that parol evidence was inadmissible to show that the former order was quashed upon the point of settlement. N appeal, the Court of Quarter Sessions had confirmed an order of justices

a reserved. There had been a former order of removal for the removal of the pauper from the same respondent parish to the same appellant parish ; an appeal against it had been entered and tried, and it had been quashed. The entry ordered and made was that it was quashed, “not on the merits, without prejudice to the making any other order for the removal of the said G. W. from either of the said parishes to the other, or to any other to which he may be removable." When this appeal came on to be heard, it was objected by the counsel for the appellants, first, that the former order was absolutely conclusive on the point of settlement, so as to prevent the respondents from giving evidence in support of their case; or, secondly, that the appellants were entitled in the first instance to give evidence to shew that the former decision was absolutely conclusive on the point of settlement. The Sessions overruled the objections, and ultimately confirmed the order.

Godson (with him Howarth), in support of the order of Sessions, having stated the case, the Court called upon Pashley, contrà.— It is said that because this entry was made, that the order was quashed, “not upon the merits,” we are to be estopped from shewing that in truth the decision was upon the point of settlement. Where an examination is defective, and does not shew some material facts which are necessary to sustain the order, it is the same as if, on the hearing of the appeal, the parties had not brought evidence of such facts before the Court. (Ex parte Ackworth, 1 D. & L. 718; 13 L. J. M. C. 38.) This, therefore, would be equally conclusive. In the same case, Mr. Justice Patteson observes that the term “ merits” is a very unfortunate expression. It, in fact, means nothing. [COLERIDGE, J.--The point decided in that case was very different. It was that the Court would not interfere to erase an entry that an order was quashed not on the merits.] But Mr. Justice Patteson also added: “Whether or not on any future occasion the Court of Quarter Sessions will allow their word to be contradicted by evidence, I cannot say.” The rule as to the conclusiveness of an order quashed, because the examinations were defective, has been followed in Reg. v. St. Mary, Lambeth (1 New Mag. Cas. 359; 14 L.J. M. C. 126), yet the Sessions would say, probably, that such a failure was not upon the merits. The question is, can there be an estoppel by intendment ? The term “ not on the merits” is ambiguous, and it may well have been, as it is well known the practice at sessions is so, that it was quashed upon a strict objection as to the statements of the examination, which, in the opinion of the Sessions, might not touch the “merits," but which this Court would clearly hold to be on the point of settlement. The term “ without prejudice” cannot have

any additional effect. It is as if there should be judgment for the defendant without prejudice to any future action by the plaintiff

. The explanation of this entry is admissible, because it stands well with the record. The principle of estoppel is, that the very fact in issue before shall not be put in issue again. It is not necessary that the questions should be over-tensive. (He cited Outram v. Morewood, 3 East, 351; Booth on Real Actions, 113; Hudson v. Leigh, 4 Rep. 438; Doct. Pl. f. 65.) [PATTESON, J.-You need not go through all those authorities as to estoppel; the question simply is, whether what the Sessions stated is to be taken as true or not?] My argument is, that the explanation stands well with the record, because the term used is ambiguous. (IIynde's case, 4 Co. Rep. 716; Anderson, 285.) The entry here is applicable to many states of facts. Unless the grounds of the judgment are shewn therein, evidence is admissible. (Rex v. Wick St. Lawrence, 5 B. & Ad. 526.) He also referred to Bedells v. Massey (7 M. & G. 630); Barnett v. Smith (13 M. & W.552); Rex v. Lyme Regis (1 Dougl. 159) ; Wright v. Tatham (10 A. & E. 782).

LORD DENMAN, C. J.-It is sought to set up an estoppel because a former order was quashed by an order accompanied by an entry. But it was not upon the merits, and without prejudice to any future order. We quite understand the entry; indeed it has been adopted, probably, from our suggestion in Rex v. Wick St. Lawrence, where we expressed our opinion that it would be much more convenient that such entry should be made. The Sessions perfectly understand the object of the term entry, and it is consistent with the facts where the order fails from some accident; it is analogous to a nonsuit, where the absence of proof at the time is no estoppel to a future action. If it failed from a positive defect of evidence, the entry was wrong; but if from an accidental absence of a witness, it is convenient that parties should not be estopped. Ex parte Ackworth has been cited ; but, in fact, it was decided upon this principle, for the Court refused to interfere when the entry was not upon the merits. It was competent for the Sessions to make this entry, and their decision was right.

Patteson, J.-To hold that evidence ought to have been received of the grounds of this entry would be misleading the Sessions throughout the country, as we suggested this entry to avoid the necessity of evidence being called. This case, probably, arose from my observations in Ex parte Ackworth on the word “merits.”

COLERIDGE, J.—The object of this evidence was to make that judgment final which the Court of Quarter Sessions clearly intended should not be final. The cases as to estoppel do not apply. The question really is, what do the Sessions mean? It cannot be denied that they meant it was not decided upon the merits. It is true that, in a popular sense, the word merits may differ from the legal interpretation ; and it is argued from that, that no decision may have included the point of settlement. It is certainly possible that it may have been decided upon what the Sessions thought purely technical grounds, but which we should have considered final. But if that was the case, the Sessions were wrong, and how can we presume that this was so ? We must know that they used the words to shew that they quashed upon a point of form, and purposely left the merits open to future inquiry. WigHtman, J. concurred.

Order of Sessions confirmed. E. W.



Hilary Term.January 20, 1847. The QUEEN V. THE INHABITANTS OF WIDDICOMBE-IN-THE-MOOR. Conclusiveness of former order of Sessions— Examination of prisoner under 59 Geo. 3, c. 12, 8. 28

-General traverse-Practice as to omissions from case submitted. According to the minute-book of the Sessions, an order of removal had been quashed, because the

examinations upon which the order of removal was made were insufficient to support the same. Held, upon an appeal against a subsequent order, that evidence was admissible to explain this entry, Quære, whether evidence would have been admissible to shew that the chairman had said, not upon

the merits?" An examination of a prisoner, taken under 59 Geo. 3, c. 12, s. 28, is not admissible at the trial of

the appeal, unless evidence be offered that he is still a prisoner. Under a ground of appeal against an order, made upon examinations shewing a birth settlement, and

also a settlement by hiring and service, which stated that the said paupers are not settled in our parish in any manner whatsoever," evidence of a birth settlement elsewhere is not admissible, although the other grounds of appeal answer all the matters of the examination, except the birth

setllement. The Court will not add to the case sent up, although both parties assent, and admit that the clause

omitted was intended to have been inserted, and was in fact inserted, when the case was settled by counsel. N appeal, at the Devon Midsummer Sessions, 1845, against an order of

two justices, dated the 14th day of February, 1845, for the removal of Mary Barnett, wife of Richard Barnett, then a prisoner under sentence of trans portation, and in custody for the same, and her five children, from the parish of Plympton St. Mary to the parish of Widdicombe-in-the-Moor, both in the county of Devon, the Sessions confirmed the order, subject to the opinion of this Court upon the following

Case. At the trial of the appeal, the respondents set up a settlement gained by Richard Barnett, the husband of the pauper Mary, by hiring and service in the parish of Widdicombe, in support of which they tendered in evidence the fol lowing examination, taken under the 59 Geo. 3, c. 12, s. 28, it having been first proved that the said Richard Barnett was, prior to the taking of the examination, convicted of felony, and was, at the time of the taking thereof, under sentence of transportation for the same, although what has since become of him, save that he was no longer in the Devon county gaol, did not appear. “ Devon,

The examination of Richard Barnett, miner, lately inhabiting to wit. S the parish of Plympton St. Mary, in the said county of Devon, but now a prisoner in the Devon county gaol, at Exeter, taken on oath before me, James Samuel Pitman, Esq., one of her Majesty's justices of the peace for the said county, and acting therein, on this 1st day of January, 1845, touching the place of the last legal settlement of him, the said Richard Barnett, and also of Mary Barnett, his wife, and Susanna Barnett, Hester Barnett, William Barnett, James Barnett, and Richard Barnett, their children.”

Here the examination was set out, which is immaterial to the argument and judgment, and is therefore omitted. The appellants (submitting that the present case could not come within the statute of Geo. 3, and that, at all events, further proof was necessary on the part of the respondents to make it so) contended that the said evidence was not admissible as evidence on the hearing of this appeal. The Sessions held that it was admissible, but granted a case on


that point.


The settlement in Widdicombe having been thus put in evidence in support of the order of removal, the appellants then proved that a former order, dated the 17th September, 1844, for the removal of the same paupers on the same settlement, was quashed by the Sessions in January, 1845. The order made by the Court at the time was entered in the minute-book of the clerks of the peace, and put in evidence at this trial, being as follows:

" This Court, on the motion of the respondents, and with the consent of the appellants, doth quash the said order, on the ground that the examinations upon which the said order of removal are made are insufficient to support the same, and the said order of removal is hereby quashed accordingly.”

Upon this, the appellants contended, that the former order, having been quashed, was in fact quashed upon the merits, and the present order could not be supported. In answer to this, the respondents tendered parol evidence to explain the entry in the minute-book, and to shew that it did not contain the true judgment of the Sessions, the chairman, in giving judgment, having used the additional words, " and not on the merits." The appellants objected to the admissibility of evidence for this purpose; the Sessions, however, having received it, held, on the additional evidence, that the former order was not conclusive, it having been quashed for insufficiency of examination, and not on the merits (if the Court were at liberty to receive any evidence to explain the minutes of the Court), but granted a case on this point also.

A birth-settlement in Widdicombe having been also set up by the respondents in the examinations, the appellants then, relying upon their grounds of appeal, which follow, proposed to prove that Richard Barnett was not born in Widdicombe, but in the parish of Leaford, in the county of Devon.

The second ground of appeal set up a former order of removal of Mary Barnett to the appellant parish, which had been quashed.

The third set up an order of removal of the pauper's husband's parents, from Widdicombe to a third parish.

The fourth set up a removal of the mother of the pauper's husband, removed to a third parish.

The fifth was an acknowledgment of the mother's settlement, by relief, in the parish of Wendron, when residing out of that parish.

The seventh (a) ground of appeal was as follows: “Because the said Mary Barnett, the wife of the said Richard Barnett, and Susannah, Hester, William, James, and Richard, their children, were not, nor was any or either of them, at the time of the making the said order of removal, settled in our said parish of Widdicombe-in-the-Moor, in any manner whatever." The Sessions held, that the appellants were not entitled, under these grounds of appeal, to go into this question, but granted a case on this point also, finding as a fact, if such evidence was admissible, that Richard Barnett was not born at Widdicombe.

The questions for the consideration of this Court are, firstly, was parol evidence legally admissible to explain the entry in the minute-book ? if it was not, then the present order of the Sessions is to be quashed. Secondly, if evidence was admissible, then, was the examination of R. Barnett admissible ? If that examination was admissible, the order of Sessions is to be confirmed. If that examination was not admissible, then, was the evidence tendered by the appellants to disprove the birth-settlement in Widdicombe admissible? If it was, the order of Sessions is to be quashed.

(a) It appeared, during the argument, that the sented to it being considered as part of the case ; paper.books omitted the statement of the sixth but the Court declined to do this, as they would not ground of appeal. The learned counsel, on both take any other question besides those submitted to sides, agreed that it ought to have been inserted, and them. The ground of appeal, so omitted, was a trawas inserted, in the case as settled by them, and con- verse of the settlement by hiring and service.

Merivale and Cornish, in support of the order of Sessions. The question saved is not the admissibility or effect of any particular evidence, but whether any evidence was admissible to explain the entry in the minute-book. This is the minute-book of the court, and the entries are made by its officer; and the evidence was tendered to shew that the order was not quashed upon the merits. It is the same as if a general entry had been made, which is open to explanation ; this was decided in Rex v. Wick St. Lawrence (5 B. & Ad. 526). The finality of a judgment only extends to the point adjudicated, and partial evidence is therefore admissible where the ground may have been either a matter of form or substance. It is like the case put by Parke, J., in his judgment of an acquittal upon an indictment for not repairing a road, on a plea of not guilty, where the question of liability has not been raised upon the record, and the acquittal is not conclusive, as it may have proceeded upon other grounds, as that the road was not out of repair. In Reg. v. St. Mary, Lambeth (14 L.J. M. C. 126; 1 New Mag. Cas. 359), the quashing was because the examinations disclosed no settlement; that, therefore, was final, as being a decision upon the point of settlement; here there is merely an entry, but the examinations were insufficient, which would be the case if no chargeability was disclosed. The examination was admissible. It is objected that the statute only applies to inquiries before the removing magistrates; but the words are “the purpose of any order of removal,” which would include the hearing of the appeal. It was taken in January, 1845, when he was under a sentence of transportation. [Lord DENMAN, C. J.- Does not the statute say, “ so long as ” only?] (a) Yes; the question is, on which side the onus of proof is? [LORD DENMAN, C.J.-You wish to make hearsay evidence admissible, and must therefore shew the requisites which are preliminary to its admission.] 3. The last point is as to the adnjissibility of their evidence as to the birth-settlement. We had proved a birth-settlement in their parish, and evidence was then tendered of a birth-settlement elsewhere, but the Sessions held that it was not admissible under their grounds of appeal. The 7th is, that “the said Mary Barnett, the wife of the said R. Barnett, and their children, were not, nor was any of them, at the time of making the orders, settled in our said parish, in any manner whatever.” This is not sufficiently specific; it traverses nothing in particular, and we were not obliged to prove any settlement by reason of that ground of appeal. (Rex v. Hockworthy, 1 A. & E. 492; Reg. v. Stuple Fitzpaine, 2 Q. B. 488.) This would refer to the settlement by hiring and service, as well as that by birth.

Rowe, contrà.—The minute-book of the Sessions is the record of that court (Reg. v. Yeoveley, 8 A. & E. 806), and evidence is not receivable to contradict it. [Lord DENMAN, C. J. referred to the case decided in the early part of the day.) Where a general entry is made, that may be so; but here the entry was definite, and could not beexplained by what the chairman said. [WIGHTMAN, J.The question put to us is not that, but whether evidence was admissible to explain the entry.] The wording seems also to point to the question as to what was said by the chairman. It is that evidence was tendered to shew that the entry was not the true judgment of the Sessions. (WGHTMAN, J.-It is “ to explain the entry, and, to shew.” COLERIDGE, J.-Why might not the reasons given by the chairman be equally admissible as the reasons given by us?] It

(a) The 28th section is as follows :-“ Any jus. place of his or her last legal settlement; and such tice of the peace may take in writing the evidence, examination shall be signed by such justice taking upon oath, of any person having a wife or child, the same, and shall be read and admitted in evidence who shall be a prisoner in any gaol or house of as to such settlement, before any justices for the correction, or in custody of the keeper of any

any order of removal, so long only as gaol or house of correction, or who shall be in such person, so examined, sball continue a pricustody of any constable or any peace officer, by soner." virtue of any warrant or commitment, touching the



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