Page images
PDF
EPUB

discharged, both as to the father of the pauper, and as to the pauper himself; and if that were not so, it was not likely that Stanley would have relieved the pauper whilst residing in other parishes. In that case, therefore, acknowledgment by relief preponderated over a derivative settlement by certificate. (Lord DENMÁN, C. J.-In all these cases the relieving parish was a party.] It is the acknowledgment by relief generally that I am endeavouring to describe, and it appears that such an acknowledgment supersedes a birth settlement. Yet a birth settlement may be set up as a ground of appeal between other parties; so that, according to the argument of the other side, the birth settlement, which is the weaker, may be set up, but this relief, which is stronger, cannot. Upon an appeal, the only issue is the last legal settlement. It seems admitted that the removing justices may notice such relief, but it is said the Quarter Sessions ought not. Then it will not be inquired into at all, for the examinations to found a removal are ex parte merely. Only facts useful to the removing parish will be brought forward. [LORD DENMAN, C. J.-The justices may examine the pauper as to his whole life.] The issue in each case is the same. Even if the facts here offered be res inter alios acta, they are admissible as a necessary part of the issue. Substantive settlements in a third parish may be set up in grounds of appeal; yet they, like that which results from acknowledgment by relief, are the consequences of acts done by third parties. The latter, being the result of acts done by public officers entitled to do them, in the form prescribed by law, when discharging a certain legal duty, deserve greater weight. It is argued that the act of these officers is res inter alios acta, and therefore only receivable between parties, those who claim under them, and privies. That amounts to saying that an act done shall be excluded because of its modus operandi. They say that this relief is not evidence of a settlement; it is evidence of one of the three acknowledgments that constitute a settlement. It is said (1 Stark. Ev. 61, 62), that the objection res inter alios acta does not apply when conduct operates as evidence, nor when the matter amounts to a transaction of a public nature. The first exception to the rule, on the ground of the public character belonging to an act, is a judgment in rem ; and an order of removal not appealed against is a judgment in rem binding on all the world. That is in fact an acknowledgment. An order not appealed against furnishes a good ground of appeal. (Rex v. Corsham, 11 East, 388.) There, upon an appeal against an order for the removal of a pauper from East Moulsey to Corsham, it was proved by the appellants that the pauper's late husband had been removed by order from Charlton to Garsden, and that order had never been appealed against. It was contended that this was no evidence against East Moulsey, which had not been a party to the former removal, and ought not, therefore, to be concluded by the laches of Garsden in respect of it; but the Court of King's Bench held that the order unappealed against was conclusive evidence of a settlement in Garsden, not only as between Charlton and Garsden, but all other parishes. An order not appealed against constitutes, therefore, a settlement by omission. Can it be said that a settlement shall be gained by omission to do an act, and not by doing an express act ? The omission to appeal and the giving relief alike constitute the acknowledgment of a settlement (2 Nol. 134); and what is true of the one is for the present purpose true of the other. The second exception is evidence of reputation ; the third, the operation of any general law or custom ; the fourth exception is of acts and declarations of others having a legal operation material to the subject of the inquiry. Here the operation of the particular act, being the conferring a settlement, is most material to the subject of the inquiry. All these exceptions to the rule, res inter alios acta, rest on the principle of privity, which may be in fact or in law. Here it is in law, and it is only on the ground of there being a privity in law that evidence of a substantive settlement can be admitted. The evidence, then, tendered to the Sessions was of the act of a public officer, in the execution of his duty, in the legal form, having a legal operation of public interest, and having a legal consequence material to the subject of the issue ; they did wrong, therefore, to reject it. As to the hardship, it is equally great, whichever way the Court shall decide. But by the ground of appeal the respondents have due notice, and they should be prepared to meet the evidence.

Cur. adv. vult.

Lord Denman, C. J.-In this case, which was ably argued on the part of those who supported the order of Sessions, on the ground that no evidence of relief from a third parish was admissible against the respondent, and that no appeal against an order of removal could be sustained on that ground, it is not necessary to decide on that point in disposing of the rule; it is enough to say, that no inference is to be drawn in favour of the respondents, and the argument is thrown entirely out of our present decision. We think it sufficiently appears from the statement of the case, that the guardians relied wholly on the evidence of relief by the township of Papcastle, to prove the settlement in that parish, and they did not purpose to adduce any other evidence whatever; and the Sessions decided, not merely that such evidence was inadmissible, but that, if received, it would not establish to their satisfaction the appellants' case. We do not think it necessary to consider whether the evidence was properly admissible or not; for if the Sessions had the right to determine the particular case, and no doubt they had, it was admitted the point was as between the parties, if the appellants proved the relief in Papcastle, whether it was sufficient ground for quashing the order; and it would be really useless to receive evidence, which, when received, was insufficient in authority for the purpose for which it was offered. Many cases were cited in the argument, but none shewing that the giving relief was more than primâ facie evidence of settlement in the relieving parish, inasmuch as it neither constitutes the mode of acquiring a settlement, nor is it conclusive evidence of a settlement. It is stated by Lord Ellenborough, in Rex v. Bardsley (1 M. & S. 377), that relief for seven years would be cogent evidence merely, but not an estoppel

. If, in the present case, the Quarter Sessions were not bound to quash the order of removal, and adjudge these settlements to have been in Papcastle, on proof of relief by that township, while the paupers were in another, they would, on mere prima facie evidence, not binding on Papcastle, have defeated the settlement admitted at one time to have existed in the appellants' parish. Suppose the Sessions had considered the relief sufficient proof of the settlement in Papcastle to quash the order, and a subsequent order of removal to Papcastle had been made, the latter might be successful on appeal against the order, by shewing the relief was given by mistake, or under circumstances proving it to be no admission of the settlement. In that case the township of Holme St. Cuthbert's, in which the settlement had at one time existed, would be altogether absolved from the liability in the whole matter. If the last settlement was in Papcastle, it would be hard that Holme St. Cuthbert's should be taxed without the legal liability, and that the latter township should be prejudiced. And the contrary decision would be equally hard on the respondents

. On the grounds stated, the Sessions were right.

Rule discharged. E. W.

BAIL COURT.

Hilary Term.-- January 20, 1847.

(Before Mr. Justice Erle.)
THE QUEEN v. The JUSTICES OF SUFFOLK.

(BEDWELL Ash v. WOOLPIT.) (a)

Mandamus-Service of grounds of appeal-Adjourned sessions. The service of the grounds of appeal, pursuant to s. 81 of the 4 8 5 Wm. 4, c. 76, must be fourteen days

at least before the original sessions, and it will be insufficient if not so served, although served that number of days before the adjourned sessions, at which, by the practice of the Court, the appeal is to be tried. The sessions for the county of Suffolk were, for the purpose of trying appeals, &c., divided into four divi

sions, being held on the Monday in the sessions week at Beccles; on the following Wednesday, by adjournment, at Woodbridge; on the ensuing Friday, by adjournment, at Ipswich, and on the Tuesday of the following week, by adjournment, at Bury St. Edmund's ; at each of which places such appeals were entered and tried as arose within each division respectively. An order of removal having been made from a parish in the Bury St. Edmund's dirision, an appeal was entered and respited, pursuant to the practice at the Easter Sessions, 1846. The Midsummer Sessions were to be holden as follows:-Monday, 29th of June, at Beccles; Wednesday, 1st of July, by adjournment, at Woodbridge ; Friday, 3rd of July, by adjournment, at Ipswich, and on the following Tuesday, by adjournment, at Bury St. Edmund's. On the 20th of June the appellants served the respondents with notice of trial

of the appeal, together with the grounds of appeal, for the ensuing sessions at Bury St. Edmund's. On the appeal coming on, it was objected that the grounds of appeal were served too late, inasmuch as they were not served fourteen days before the sessions at Beccles, and the Sessions, holding this to be a good objection, refused to hear the appeal. Upon motion for a mandamus to enter continuances and hear the appealHeld, that the Sessions were right, and that the service of the grounds of appeal should have been fourteen

days before the original sessions at Beccles. THIS was a rule calling upon the justices of Suffolk to shew cause why a

mandamus should not issue commanding them to enter continuances and hear an appeal between the parish of Bedwell Ash, appellant, and the parish of Woolpit, respondent, against an order of removal.

The facts, as they appeared on affidavit, were as follow :—The county of Suffolk has been from a very remote period divided into four divisions, for the purpose of holding the general quarter sessions of the peace, and that the whole of the civil and criminal business arising in each one of such divisions was transacted at the respective quarter sessions for the division, which were held as follows:-On the Monday in the week in which the general quarter sessions are directed to be holden, at Beccles; on the following Wednesday, by adjournment, in another division, at Woodbridge; on the ensuing Friday, by adjournment, to another division, at Ipswich; and on the Tuesday, in the following week, by adjournment, at the last division, at Bury St. Edmund's. It further appeared that, by the practice of the Sessions, all appeals against orders of removal were tried at the quarter sessions of the division wherein the respondent parish was situate, and not elsewhere ; and that the same were required to be entered with the clerk of the peace before ten o'clock on the first day of the sessions in such division, and not at the sessions at Beccles, unless the appeal was there triable. On the 1st of February, 1846, an order of removal was made from the parish of Woolpit to the parish of Bedwell Ash, the said parish of Woolpit being within the Bury St. Edmund's division ; and the examinations, &c. were duly served on the following 13th of the same month. The next adjourned sessions at Bury St. Edmund's, according to the foregoing regulations, were held at that place on the ensuing 16th of March, at which

an (a) Reported by T. W. SAUNDERS, Esq., Barrister-at-law.

appeal against the said order was entered as respited ; and on the following 20th of June a copy of the order of entry of appeal, and notice of trial for the next sessions at Bury St. Edmund's, together with the grounds of appeal, were served upon the respondent parish. The ensuing Midsummer Sessions were about to be held as follows :-Monday, 29th of June, at Beccles; Wednesday, 1st of July, by adjournment, at Woodbridge; Friday, 3rd of July, by adjournment, at Ipswich; and on the Tuesday of the next week (July 7th), by adjournment, at Bury St. Edmund's. When the appeal was called on in its turn at the said adjourned sessions, held on the 7th of July at Bury St. Edmund's, the respondents objected to its being heard, as the grounds of appeal had not been served fourteen days before the commencement of the general quarter sessions holden at Beccles on the 29th of June, pursuant to 4 & 5 Wm. 4, c. 76, s. 81; in answer to which, it was argued that it was sufficient to serve the grounds of appeal that number of days only before the adjourned sessions at Bury St. Edmund's, which having been done in this case, the service was regular. The Sessions held the objection to be fatal, and refused to hear the appeal ; whereupon the present rule was obtained.

Prendergast and Gurdon now shewed cause.—The words of the 4 & 5 Wm. 4, c. 76, s. 81, directing the service of the grounds of appeal, are these : “ The overseers or guardians of the parish appealing against such order, or any three or more of such guardians, shall, with such notice, or fourteen days at least before the first day of the sessions at which such appeal is intended to be tried, send or deliver to the overseers of the respondent parish a statement, in writing, under their hands, of the grounds of such appeal," &c. The present question turns entirely upon the proper construction to be put upon this clause; if these words enable the appellants to overlook the original sessions, and give their notice with reference alone to the adjourned sessions, then they were undoubtedly in time; but otherwise, they were not, as there were only twenty days between the service of the grounds of appeal and the sessions at Beccles. [Erle, J.-The question rests entirely upon whether or not the sessions at Bury were original sessions ; the service of the grounds can only be good upon the assumption that they were. That must be made out.] Rex v. Sussex (2 T. R. 107); Rex v. Hinderclave (19 Vin. Ab. 356), and R. v. Polstead (2 Stra. 1263), are in point.

Power, in support of the rule. If the uniform course of practice at these sessions is any authority, the case is quite clear, for each division tries its own appeals, and the appeals are invariably entered in the division at which they are to be tried ; this is the well-known course of practice at these sessions, and no one could have been misled. The object of the 81st section was that the respondents should have fourteen days' notice of the grounds of appeal before the appeal was to come on to be tried, and that they have had in the present case; and they well knew that the appeal was to be, and could only have been, tried at the Bury sessions. [Erle, J.-The justices could have altered their practice, and have tried all the appeals at one place.) But they would in such a case have given due notice of such alteration. If in an ordinary case of notice to produce, it would not have been necessary to have given it prior to the Beccles sessions. (ERLE, J.--In such a case the notice would have reference to the trial, and if here the words of the 81st section had been “ fourteen days before the trial of the appeal,” your argument would have been sound.] The object of the legislature was merely that reasonable notice should be given, and indeed this was all that the old Act of 9 Geo. 1, c. 7, s. 8, required. It could scarcely be intended that in a case such as this, a repondent, because the appeal is to the Bury sessions, should have very much more time

than if it were at Beccles; and yet he would have more than twenty days' notice in that case, if the construction put upon this section by the other side is correct. This section makes no distinction between general, quarter, or adjourned sessions; it uses the term sessions only, the words being “ fourteen days at least before the first day of the sessions at which such appeal is intended to be tried,” which would clearly include adjourned sessions, the sessions at Bury being in fact “ the sessions at which such appeal was intended to be tried.” The Act of Parliament apparently made use of the term sessions in its general sense for the purpose of including adjourned sessions ; for in other sections the words used are “general or quarter sessions ;” and moreover, the interpretation clause declares that the words “ general quarter sessions shall extend to, and be construed to include, general or quarter sessions, or adjournment thereof."

Cur. adv. vult. ERLE, J.-I think this rule ought to be discharged. No doubt the appeal in this case was to have been tried at the Bury sessions; and if these had been original sessions, the notice of grounds of appeal would have been in time; but, in point of fact, the Bury sessions were only adjourned sessions, the original sessions having been previously held at Beccles, and the service not having been effected the fourteen days before they commenced. The real question is, whether or not the appellants were bound to have given their notice fourteen days before the sessions at Beccles, or were only bound to have given it that number of days before the sessions at Bury; and I am of opinion, that, upon the proper construction of section 81 of the 4 & 5 Wm. 4, c. 76, it was not competent to the appellants to have disregarded the Beccles sessions, and given their notice with reference only to the adjourned sessions at Bury. I think the notice should have been served the required number of days before the sessions commenced at Beccles; the whole of these adjourned sessions being, in contemplation of law, but one sessions, although, for the purposes of convenience, the justices adjourn the sessions from place to place; and this opinion is justified by the cases which have been cited. The rule, therefore, will be discharged.

Rule discharged.

BAIL COURT.

Hilary Term.-January 23, 1847.

(Before Mr. Justice Erle.)
THE QUEEN v. THE JUSTICES OF GLOUCESTERSHIRE.

GIBBINS v. Hiron. (a) Service of notice of recognizance, under 8 Vict. c. 10, s. 3–Time of service-Admission of due service. On the 9th of April an order of affiliation was made, whereupon the putative father gave notice of appeal,

and on the 13th of the same month entered into his recognizance, but did not serve any notice of his having done so upon the respondent until the 22nd of June following. On the 29th of June, the respondent's attorney signed and delivered to the appellant's attorney the following memorandum :-Gloucester Summer Sessions, July 1, 1846 ; George Hiron, appellant, and Elizabeth Gibbins, defendant. I hereby admit the due service of the notice of bail and appeal, given herein, on respondent, Mr. Chesshyre undertaking to produce the original notices on the hearing of this appeal, together with the order,” &c. On the appeal coming on to be tried, it was objected, on the part of the respondent, that the Sessions

(a) Reported by T. W. SAUNDERS, Esq., Barrister-at-law.

« PreviousContinue »