To be conclusive must be prosecuted. An order abandoned concludes nothing. To be conclusive it must not be ex facie null. son, because he is not mentioned in it, and the sessions have expressly found that he was settled at H. (1) An order, to be conclusive, must be bona fide obtained and prosecuted. If a parish obtain an order of removal, and then abandon it, consenting to take the pauper back, without giving the parish to whom it is directed the trouble of appealing, it concludes nothing. A party may give up a judgment intended for his own benefit. (2) But to be thus final and conclusive, it must not be ex facie null. It must appear on the face of the order, therefore, to be made by two justices, having a competent jurisdiction. (3) Yet, it seems, that it is not permitted to the parish, against whom it operates, to show it void by circumstances, dehors the instrument itself, for they must, in such a case, appeal in the regular course of proceedings, or they are concluded by it. An order of removal from A. to S. was executed, and not appealed from. S. discovering that the paupers were settled in C. removed them thither. C. appealed, and relied upon the original order, unappealed from, as conclusive of the settlement in S. To repel which, S. proved, that this order, and the examination on which it was founded, were signed and taken by the two justices separately and that one of them, although a magistrate for the county in which the order was made, took the examination, and signed the order at his own house, situate in another county. The court, after taking time to consider, were of opinion, that this order was only voidable, and not absolutely void, and therefore, as the parish of S. had not appealed against it, they were concluded by it. (4) (1) Rex v. Southowarm, 1 Term Rep. 353. (2) Rex v. Llanrhydd, Burr. S. C. 658. Rex v. Diddlebury, 12 East, 359. S. P. (3) Rex v. Chilverscoton, 8 Term Rep. 178. ante, 142. (1) It must also be made to a place to which a removal can be made, and which has officers who may watch over its interests, and appeal against such orders as affect them without due foundation. An order of removal directed to A., which is only a large village maintaining its poor in common with the rest of the parish, is a nullity, and cannot become the subject of appeal so as to conclude anything. (1) But if it be directed to the parish at large, and served on a township within it which maintains its own poor, that is sufficient. The parish of Kirkby Stephen consists of ten different townships, maintaining their own poor separately; one of them is also called the township of Kirkby Stephen. An order was made for removing a pauper from N. to the parish of Kirkby Stephen. It was directed to the churchwardens, &c. of the parish of Kirkby Stephen, and the pauper's settlement was adjudged to be in that parish; but the order was delivered with the pauper to the township of Kirkby Stephen, which did not appeal. In a question concerning the pauper's settlement, upon a removal from the township of Kirkby Stephen to that of Whatton, in the same parish, Lord Mansfield, This case resembles very much that in Viner, of Rex v. Stepney. (2) The township of the parish which is named in the order, and to which the pauper is brought, ought to appeal. The justices are not obliged, nor perhaps is it in their power to take notice of the divisions of parishes. The stat. 13 & 14 Car.II. which takes notice of the divisions of parishes, directs the removals of paupers, not to such divisions, but to such parishes. It would introduce extreme confusion. and inconvenience if townships might lie by in this manner. There does not exist such a place as the parish of Kirkby Stephen for the purpose of maintaining the poor, Conclusive up to what time. Puts an end to contract of service. But where the 10l. per ann. it was held conclusive, only to the time of the re moval. and Kirkby Stephen could not get rid of this order but by appeal: an order unappealed from is undoubtedly final. (1) Such an order is conclusive of the settlement of those who are affected by it, up to the period at which the parish ought to have appealed (2), and is only to be superseded by a settlement gained by some subsequent act. (3) It has been considered as sufficiently powerful to put an end to a contract of service. A yearly servant removed by such an order from his master's service without his consent, but who returned to him again, and served out a month, being the remainder of his year, was held deprived of his settlement, as there had been no appeal from the order. (4) But a person who rented a tenement of the value of 101. party occupied a tenement of per annum, for some years, being removed by an order of removal, returned the same day to his tenement, and resided there, without coming to any new contract with his landlord, and without interruption, for three quarters of a year. An appeal against this order was entered, but never prosecuted. It was held conclusive of his settlement only up to the time it was made; for there was nothing in the order to prevent his return, provided he did not come back in a state of vagrancy, which he did not do; for it was not in the power of the magistrates who made the order, nor of the justices at sessions on appeal, to put an end to the contract between the parties, respecting the taking of a tenement; when it is stated that he rented and resided on a tenement of 10l. per annum, that infers a con (1) Rex v. Kirkby Stephen, 2 Bott, 675. Pl. 736. (2) See post, 147. (2), as to the time. (3) See the opinion of Grose J., Rex v. Kenilworth, 2 Term Rep. 598. (4) Rex v. Kenilworth, supra, (3), and Vol. I. chap. xx. sect. iv. part i. and see the note, ib. But as the order was conclusive of the settlement, up to the time of removal, see Rex v. Fillongley, post, 147. (1), perhaps it would have made some difference if he had served forty days subsequent thereto. At least it would have raised the question whether the old contract continued, and the order prevented the services from connecting. tract; which, as it could not be dissolved by the justices' adjudication, still remained: wherefore he gained a settlement by residing forty days. (1) In this case, the order was said to be conclusive of the settlement, up to the period of the removal. (2) SECT. V. Of the Evidence necessary to establish this Species of Settlement. THE proof is plain and direct in all these cases. Proofs what. In the 1st, proof of such facts of relief as show that it 1. By relief. was given to the party as settled, and not as casual poor, is sufficient. In the 2d, proof of identity, and the due execution and 2. Certificate. delivery of the certificate. (3) In the 3d, the order must be proved to have been duly 3. The order. made. Proof of the magistrate's hand-writing is good prima facie evidence of this. (4) Some proof should be given that the order has been put in execution, by removal of the parties to whom it relates; and if there be any doubt respecting their persons, they must be identified. But it seems unnecessary for the party relying upon the order to show that it was not appealed from, for that is to be presumed until the contrary is shown. To. avoid any difficulty which might arise as to this proof, it is stated by Holt C. J., that the most regular way (1) Rex v. Fillongley, 2 Term Rep. 709. (2) Ib. But quære whether it goes beyond the time of making the order. (3) See post, tit. Certificate. (4) Ante, Vol. I. chap. xx. sect. vi. and see Barleycroft v. Coleoverton, 1 Str. 94. As to what is necessary to render an order of removal valid, see post, chap. xxviii. Of recording orders of re moval. Additional precaution. for justices to proceed upon the 14 Car.II., in removing a poor person, is to make a record of the complaint and adjudication, and upon that, to make a warrant under their hands and seals to the churchwardens (1), to convey the persons to the parish to which they ought to be sent, and deliver in the record per proprias manus into court next sessions, to be kept there amongst the records to charge the parish; and that the record may be well removed by a general certiorari to the justices of the peace. (2) It seems from this as if a due execution of the warrant by the parish officers might be presumed; or, at all events, that recording the order is a matter of sufficient legal notoriety to enable the parish to which the removal is directed to be made, to come in and dispute the fact, if it should be otherwise. But Dr. Burn suggests, as an additional precaution, that the justices who make the order have a right to see it executed; and therefore, they may enquire upon oath, whether the removal was duly made; and if it was, they may record the whole; which record being delivered at the next sessions, and the court likewise recording that no appeal was made, perhaps the parish may be concluded. (3) (1) Quære, if not the churchwardens and overseers? (2) Anon. 1 Salk. 406. (3) Burn's Just. tit. Removal, post, chap. xxviii. |