8. Evidence of

carried beyond the express words of it? In my opinion it ought to be construed strictly; for the examination which is to be made evidence is an ex parte examination, and which the party has no opportunity of knowing at the time it is taken, and of course they are deprived of all opportunity of cross-examining the party who makes it."-Some doubt was expressed in that case, whether the original examination was evidence; but in Rex v. Warley, 6 T. R. 534, it was ruled to be so. The paper does not prove itself, and must be authenticated before it can be received in evidence; Belton with Harrowgate, 1 E. 13.

The observations of Lord Kenyon as to the propriety of the Act being construed strictly, are founded upon very important reasons; and it may be material to observe, that unless the soldier is summoned by two justices where he is quartered, the provision does not apply. Such examinations are usually procured on behalf of a parish interested, and are often conceived in very vague and general terms, perfectly inadequate to give a proper view of the real facts of the case; and as they are in general calculated to produce a conclusion upon the fact without any satisfactory investigation of the truth, it may not be unimportant for those who are engaged in preparing the Mutiny Acts to consider, whether the inconvenience which is intended to be remedied by the introduction of the clause in question, would so materially affect the public service as to induce them to continue it.

A great many questions have formerly occurred respect the competence or parishioners. incompetence of parishioners in questions of settlement affecting the parish in which they inhabited or possessed rateable property. But the objection to which these questions relate is removed by stat. 54 Geo. III. c. 170, (post.) sec. 9, by which it is provided, that no inhabitant or person rated or liable to be rated in any parish, &c. should, by reason thereof, be taken to be an incompetent witness for or against such parish, &c. in any matter relating to any order of removal to or from such parish, &c. or in the several other subjects particularly mentioned in the Act.

There are opposite opinions amongst persons conversant with the subject, respecting the wisdom and policy of this enactment; but so far as my own observation goes, I conceive its tendency on the whole to be much more beneficial than otherwise, and that the rejection of the testimony of the parties in question had more frequently operated in the exclusion of truth, than in the prevention of falsehood; more particularly when the persons who are in general under the greatest, real influence upon the subject, the paupers themselves, were legally competent, and had an opportunity of giving, without contradiction, the narrative most congenial with their own wishes. But it is certain that the alteration in the law, however much it may be intitled to approbation as to its general effects, renders it proper to apply a great degree of caution in weighing the credit of witnesses, whose competence can no longer be objected to, and in watching with jealousy and suspicion that spirit of parochial feeling, which, in many cases, is extremely prevalent, and perhaps not difficult, with a moderate share of observation, to detect. It is obvious that, cæteris paribus, this spirit will naturally prevail in a greater degree amongst the inhabitants of a small country hamlet, where the trial of a settlement case is a matter of general interest and attraction, than among the inhabitants of an extended district, to whom the existence of such case would be probably unknown, if their own immediate testimony had not been connected with it.

In Rex v. Woburn, 10 East, 395, it was ruled, that a rated inhabitant of one of the parishes concerned in an appeal was not compellable to give evidence against such parish, although certainly he could not have been objected against when called upon by the opposite parish; and the cause was ruled not to be affected by the statute 46 Geo. III. c. 37, declaring that parties cannot refuse to give evidence on the ground that it may affect their interest. Le Blanc J. observed, that" if the sessions had been aware at the time of the extent of the question, there would have been no difficulty; for if the witness were rejected on the ground of his being a party to the suit, his declaration of any facts touching the matter in issue would necessarily have been 9.Declarations evidence against himself."-The correctness of this incidental opinion was of parishion- very soon established in Rex r. Hardwicke, 11 East, 578, and was regarded as a corollary from the preceding decision; a point upon which I have always entertained considerable doubt, and the Court appeared to be fully aware of the important consequences which might result from it. Mr. Justice Bailey observed, that unless the opposite party first offered to

ers.

call such inhabitant as a witness, which was objected to, he did not think that in ordinary cases the magistrates should give any weight to mere declarations of that kind; though there may be occasions when the declaration of such a party would have great weight.-I do not think that the observation last adverted to would very materially remove the inconvenience that would probably result from the decision; for a witness might have many reasons to refuse being examined, with which the parish of which he was an inhabitant would not have any concern, and none more powerful than his having made assertions which he knew were contrary to the truth.

I have known it decided at the sessions, that the late Act 54 Geo. III. c. 170, above alluded to, had the effect of compelling parishioners to give evidence, and consequently of preventing their declarations being received. It did not appear to me that it would admit of so large a construction; and I conceive that it would be very desirable that a legislative provision should be expressly made for effecting those objects.

If the magistrates in sessions are equally divided in opinion, the decision of 10. Justices the appeal should be adjourned to the following sessions; but when the clerk equally diof the peace made an entry by mistake, that there was a majority for quash- vided. ing the order (the fact being, that one of the justices who had made the order, having voted for confirming it, which made a majority of one, withdrew such vote upon being apprized of the fact, whereby the numbers were reduced to an equality), it was held that no mandamus would lie to enter continuances, upon affidavit of the facts, although it would have been competent to the court of quarter sessions to reform the error during the continuance of its sitting; Justices of Leicestershire, 1 M. and S. 442.

One of the most important considerations for the decision of courts of 11. Of stating quarter session, in cases upon the poor laws, is the propriety of granting a case. or withholding a case for the purpose of bringing the rectitude of their decisions in review before the Court of King's Bench. Some very great judges have strongly expressed their opinion in favour of the facility of granting such cases. Lord Hardwicke said-" To be sure it is a thing very much to be censured and discommended, when an inferior jurisdiction endeavours to preclude the parties from an opportunity of applying to a superior;" Oulton v. Wells, B. S. C. 64. In another case he said-" If the justices will not state the facts specially (though requested so to do) when the matter is doubtful, this is very blameable conduct in them, and it is to be wished that it might be avoided.--Lord Mansfield, at nisi prius, always shewed a great readiness in granting cases, by which the parties might have an opportunity of a more deliberate discussion of any legal question, taking proper precaution to prevent that facility being made a subject of abuse. In modern cases it has been very often recommended to justices in sessions not to reserve cases when they had not themselves a serious doubt. In a former part of this note I have adverted to the weight which ought to be given to the absence of doubt as a reason for withholding the opportunity of further dis

cussion.

Nothing could be more fallacions than any general theory as to the adequacy or inadequacy of courts of quarter session, to form a correct opinion upon disputed questions of law. Such courts are sometimes composed of persons of long professional experience: they may be composed of gentlemen, who, without having been professionally connected with the study of the law, may have devoted to this particular branch of it a very considerable attention, accompanied by a very accurate judgment; but it is also manifest, that they are not unfrequently composed of persons who have not, by any means, devoted that attention to the subject which is requisite, to enable them to pronounce, upon the sudden impression of the moment, an adequate judgment on any question, forming part of a system so extremely complicated and artificial as the law of settlements; but are obliged to collect the law upon the subject, from the statement which is made of the law during the trial of the particular cases. From the experience of a long attendance upon courts of quarter sessions, in two large and populous counties, I have received the impression, that in general (although, certainly, not without exception) the greatest readiness to submit a case to further revision is shewn by those who have the most extensive and familiar knowledge of the general law of the subject; and that the greatest tenacity has been maintained in support of opinions, pronounced in opposi tion to first principles, under the influence of counsel who had the talent, when the case would not admit of strength of argument, to supply the want of it by confidence of manner.

It should always be recollected, that after the case is reserved, the losing VOL. VIII.

F

parties have strong motives to pause before they avail themselves of the opportunity of bringing it into further discussion; that if they fail they have all the costs to pay, and are not entitled to recover any if they succeed; and consequently, that they will not, if acting under proper advice, be induced to expose themselves to such a hazard, unless there is either a very great interest in the question, or a strong probability of success. During the time that it has been customary to recommend the refusal of reserving cases (which I think may be dated from the appointment of Lord Kenyon as chief justice), I have observed, that notwithstanding such recommendations, the number of cases in which the orders of sessions were reversed bear a very large proportion to those in which they were confirmed; and to bring the subject to a test, I have compared their relative numbers, in the supplement lately published to Bott's Poor Laws, embracing ten volumes of reports, and containing 111 cases, in 49 of which the orders of sessions were reversed, and in 46 confirmed (the remaining 16 cases arising upon applications for mandamus, and other proceedings foreign to the present question). Of the cases confirmed, the decision in some merely proceeded on the ground that the decision of the sessions on either side ought not to be disturbed; so that they would equally have been confirmed if they had been the other way; and consequently, in a considerable majority of the cases, where a judgment was actually pronounced on the merits of the case, it was against the propriety of the former decision; and which, I apprehend, is to be in a great measure accounted for, by the caution which is naturally entertained as to incurring the hazard above alluded to, without a just and reasonable prospect of success; and from these considerations it seems reasonably to follow, that although a case ought not to be granted as a matter of course, and merely because it is asked for, the error of too easily acceding to such an application is in its nature much less prejudicial to the real justice of the case, than the error of refusing it, without a full and well-grounded confidence in the rectitude of the opinion which is entertained.

When a case is agreed to be granted, a system of jockeyship and manœuvring often takes place with regard to the manner of stating it; there is often an attempt to introduce some incidental finding, which may be caught hold of as a legal point, and elude a decision upon the real question which has been previously contested, particularly by the finding of something as a matter of fact, with regard to what has been agitated merely as a question of law. Two instances of this kind, which many years ago occurred to myself in practice, will sufficiently illustrate this observation: A person had been hired for a year, at weekly wages, as a servant, without any exception as to hours of work or of Sundays. From his having the common remissions from labour, the sessions were persuaded to find, "that it was the intention of both parties at the time of the contract, that there should be some time during which the master should not have a controul over the servant." In another case upon that point of contract of service and instruction, which is the foundation of the case of Little Bolton, and others that had followed it, the word Apprentice never having been mentioned; but the counsel having prevailed upon a witness to say Yes, in answer to the question-" Did not you intend your son to go as an apprentice?" afterwards prevailed upon the court to find, that the parties intended a contract of apprenticeship.-Of course it was not deemed eligible, in either case, to trouble the Court of King's Bench upon the questions intended to be reserved. In all these cases the most judicious course which the sessions can adopt appears to be, to confine the case to a statement of the facts which actually occurred.

Upon some subjects where the contrariety of decisions has involved the law in an inextricable labyrinth, it has been recommended to the sessions in future to decide the case one way or the other as a matter of fact (as in the much litigated question of dispensation or dissolution of service) which certainly, so far as it goes, is a commodious way of cutting the knot, which it is difficult to untie. But although this may prevent the discussion of cases in the King's Bench, it will have the effect of very much multiplying them at the sessions, as the parties may be reasonably advised that it comes merely to a question of casting lots; whereas if the Court of King's Bench, in such cases, would disencumber the subject from the mass of contradictory decisions, by laying down a broad, general principle, according to the true construction of the law, a rule would be given to which the advice of counsel could be properly applied, and a great expense of litigation upon the mere chance of the tables would be prevented. The late cases upon the particular subject which have been alluded to, afford an instance of the expediency of this course of proceeding; and the short question, whether a servant was or was not to be

under the controul of the master, can as easily be considered in a question of settlement, as in a case where such controul was in fact attempted to be exercised,

There are few questions which are not essentially questions either of fact or law, or which can with propriety be treated indifferently as the one or the other and although such questions may be intimately blended and connected, they are almost always, with due care, capable of separation, and are distinguishable in cases on the poor law, with reference to the respective provinces of the quarter sessions and the Court of King's Bench, as in ordinary civil cases, with reference to the province of a court and a jury, wherein the withdrawing from a jury the decision of a question of fact, or the submitting to them a question of law, would, if properly introduced on the record, be equally a matter of error.

It may not be irrelevant to remark, that when a special case is stated for the purpose of raising a certain point, incidental and collateral circumstances, upon which no dispute appears to have arisen, may be considered as sufficiently established, although not particularly noticed. Thus in the case of Aire and Calder Navigation, 2 T. R. 660, upon the validity of a poor rate, it was objected that it did not appear that it had been published in the church; upon which Buller J. observed, that if the objection were to hold, it would destroy every case of the sort that came before the court; but the distinction between orders and special verdicts had been long established; in the latter, the whole case must appear upon record; but the very reverse is the rule which obtains in the case of orders of justices, for the court will intend every thing to be right, which does not appear to be otherwise; and they will not entertain a doubt upon any subject, upon which the justices did not.

That the decision of pure questions of fact is exclusively the province of the sessions, is a proposition which is generally acknowledged as a first principle of settlement law; but in some recent cases, the Court of King's Bench have reversed the judgment of the sessions upon such questions. For instance, in Rex v. Barnsley, 1 M. and S. 377, suprà (7.) the sessions having drawn a conclusion which appeared to the court to be wrong, Lord Ellenborough said "The only doubt is, whether, where the sessions have drawn a conclusion palpably erroneous, we should send the case down again, or, in ease of the parties, draw the irresistible conclusion ourselves. The relief given is evidence of such preponderating weight, that I should think any judge would direct a jury to find upon such evidence (supposing the question legally to come before them) that G. was by some means or other a settled inhabitant of the parish:" and the order was reversed. That the Court of King's Bench took the proper view of the facts of the case may be fairly conceded; but it is in strong and favourable cases, and where expense will be saved to the parties, that a deviation is almost always made, in the first instance, from the regular course and system of the law; and such deviation is afterwards gradually followed up to an extent, which, if it could have been foreseen, would have evinced the propriety of adhering to the regular order and system of the law. It was an observation of Lord Mansfield, that favourable cases make bad precedents. Admitting that under the circumstances a judge would have given a strong direction to the jury, and that a court, in case of their finding an opposite verdict, would have thought it a proper case for granting a new trial, no case has yet occurred in which the courts have substituted themselves in the place of the jury, and have entered a ver◄ dict in opposition to that which was actually given.

The positive directions given in some cases to juries, respecting the presumption which they are required to draw upon matters of fact, has introduced one of the greatest and most inconvenient anomalies in the law with respect to the effect of length of time upon incorporeal rights, and created an heterogeneous system, in which the verdict is dictated to the jury as upon a matter of law, and the judgment of the court cannot be made the subject of revision, because, in point of form, the decision is a finding of the jury upon the fact; a system which gradually emanated from some loose and incidental opinions at Nisi Prius. In every decision of a superior court, it is of so much importance to regard the effects and consequences of the precedent which may be established, that nothing can be more justly deprecated than a departure from established principles, in order to accomplish an object of accidental and immediate convenience in a particular case.

With reference to the immediate subject it may be further observed, that where the case states mere evidence respecting that which is truly and properly a question of fact, it seems to be the proper, as it certainly was long the established practice of the Court of King's Bench, to decline giving any

C.

Of the effect

of an order unappealed from,

confirmed or reversed.

judgment upon the weight and effect of such evidence, however strong and satisfactory it may be, as being a subject not properly within their cognizance, in the same manner as in the well-known case of a special verdict in trover they would not give any judgment upon a mere finding of a demand and refusal, which is only evidence of a conversion, and not a conversion itself: a distinction which is very far from being merely verbal, and is a complete illustration of the very important distinction, which cannot be too much insisted upon between law and fact.

Before dismissing this subject it may be proper to observe, that when the case is reserved by the sessions, not upon the fact of the settlement itself, but in respect of the admission or rejection of evidence, and it is held that the decision upon that point is erroneous, the proper course is not to reverse the order, but to remand the case to the sessions, to be there decided, unless it appear that the case was founded solely upon inadmissible evidence; in which case, as the exclusion of the evidence would have left no ground for the order that has been occasioned by it, the decision of the inadmissibility of the evidence should induce the reversal of the order. This distinction may be illustrated by referring to the case of admitting one of several witnesses to the same fact, who was incompetent, and which is only a ground for remanding a case, and admitting the parol evidence of rates, without a proper notice to produce them; which being the only evidence of the fact of rating, the decision that the evidence was improperly received involves the decision, that the order founded upon it should be reversed.

It is settled as a general rule, that an order of removal, confirmed or unappealed from, is conclusive of the settlement against all the world. According to the expression of Lord Ellenborough, in Rex v. Corsham, 11 East, 388.-" It is in effect a statutable certificate, that the pauper was settled at the place to which he is removed: the statute gives him a settlement there, and the fact stated by the sessions of a prior settlement elsewhere is immaterial."

Perhaps it might be convenient, if a course were adopted by which a parish, in which a person might happen to be as casual poor without any pretence of settlement there, could procure the question to be agitated between the two parishes, in one of which the real settlement confessedly is, and nət be subjected to the inconvenience and expense of agitating a question, in which, eventually, it has not any interest. But I am aware that the details of such a measure would require very minute and attentive consideration.

An order of removal, whether executed or not, may, before the sessions to which the appeal is to be made, be abandoned by the mutual consent of the parish obtaining it, and the parish upon which it is made; Llanrhyeld v. Denbigh, B. S. C. 658; Diddlesbury, 12 East, 359. In the latter case the order was annulled by the consent of the justices making it, but that does not appear to have formed an ingredient in the decision, and did not oceur in the former.

The removal of two persons, as husband and wife, is evidence as to the marriage between them, both with respect to themselves and after-born children. It was also held, in Rex v. St. Mary Lambeth, 6 T. R. 615, that the removal of a woman, as the wife of A. B., was conclusive evidence of the legality of the marriage, as to children previously born, and not included in the order, the court holding it to be conclusive not only on the persons removed, but also on all derivative settlements from them. This decision seems rather questionable in principle; for being a matter of estoppel contrary to the truth of the case, the judgment would seem only to conclude the immediate subject matter of it; viz. the existence of the relation of husband and wife at the time of the order, and not the legitimacy of children born at an antecedent period. See cases in the preceding part of this section, as to the effect of a removal of the wife, or person reputed as such, without the husband.

In Rex v. Chilverscotton, 8 T. R. 178, an order unappealed from was held conclusive, although void upon the face of it, it not appearing that the justices who made it were of the county from which it was made.

It is also agreed that an order quashed upon the merits is conclusive, so as to prevent a second removal from the same parish but that an order quashed for want of form, or other matter callateral to the settlement, as the not being chargeable, is not so. In Osguthorpe v. Deseworth, 2 Str. 1127, being the removal of a certificated person, it appeared that the first order was before he was chargeable, and the second after; and the court held, that the first order having been premature, the consequence was only that the party must be suffered to remain till he did become chargeable, and not to make a premature removal final for ever.