occasion was inadmissible, this order of removal and order of sessions confirming the same were to stand affirmed: But if the Court should be of opinion that Queen's Bench. 1847. The QUEEN V. ants of ST. ANNE'S, WESTMINSTER. the decision of the quarter sessions as to the effect of The Inhabitthe former order of sessions was right, but that evidence was admissible to shew the grounds of such entry, and that the then court of quarter sessions could decide thereon, then the case was to be remitted to the sessions to hear and decide on such evidence &c. Godson, who was to have supported the order of sessions, was stopped by the Court. Pashley, contrà. Although the sessions, in November 1844, professed to quash the order of justices "not on the merits," the present appellants were at liberty to shew that, in reality, the Court then adjudicated upon the settlement itself. In Ex parte Overseers of Ackworth (a), where the sessions had quashed an order of removal because the evidence stated in the examinations was insufficient, and had entered, on their record, discharged, "not on the merits," Patteson J. held that the entry was erroneous, and that the sessions had, substantially, decided the case. He said: "There is no doubt here that the decision of the sessions was touching the settlement. Where 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 (a) 3 Q. B. 397, note (a). Volume IX. 1847. The QUEEN V. ants of 'ST. ANNE'S, WESTMINSTER. such a respect will be conclusive as to the settlement. I do not say that it is a decision on the merits:' that is a term which does not convey any clear notion: I The Inhabit prefer saying that it is a decision on the point of settlement. The sessions, therefore, in this case, were clearly wrong." He added: "Whether it will be possible hereafter to give evidence explaining the grounds of the decision which the sessions have recorded as a decision not on the merits,' is a question which it is unnecessary now to enter upon." In Regina v. St. Mary, Lambeth (a), where the sessions left it to this Court to say whether certain former orders of sessions were conclusive against a subsequent removal, this Court held that they were, Lord Denman C. J. saying: "We can see that they had already decided the case, not expressly on the merits, but in such a manner as to dispose of the interests of the parties." The same might have been shewn here, if the appellants had been suffered to proceed. The words "not upon the merits," and "without prejudice to the making of any other order," did not occur in that case; but these are loose and colloquial phrases, and cannot alter the effect of a decision on the settlement, if the order really involved one. An estoppel precludes a party from litigating the same point which was decided against him before if the questions are not identical, there is no estoppel; Outram v. Morewood (b), Booth on Real Actions, 113., B. 2. c. 3. 2d ed., Hudson v. Lee (c), Doctrina Placitandi, 65, et seq., tit. Barre, 6, Regina v. Walker (d). A record is conclusive; "but to take aver (a) 7 Q. B. 587. (b) 3 East, 346. See Rer v. Wick St. Lawrence, 5 B. § Ad. 526. 536. judgment of Parke J. (c) 4 Rep. 43 a, (d) 2 M. & Rob, 446. Queen's Bench. 1847. The QUEEN ment which stands with the record, and which doth not impugn anything apparent within the record, the law doth well admit and allow;" Hynde's Case (a). [Patteson J. The point here is merely whether the sessions, The Inhabitin the former order, have stated what is conclusive. The general course of authorities on estoppel is beside the question. Coleridge J. The question we are upon is the meaning of the particular entry.] The sessions may have given their judgment on a ground which was conclusive of the settlement, though they may have deemed it unconnected with the merits; as upon the want of a stamp, or of some necessary detail of evidence in the examinations. It was not material to the order of sessions to state whether the order of removal was quashed on the merits or not; and an averment not material cannot estop; Bro. Abr. Estoppell, pl. 178. If the sessions had expressly said that they quashed without meaning to decide upon the settlement, or that they quashed for want of proof of chargeability, the case would have been different. It has always been a rule that, if an order of sessions does not state the ground. on which an order of removal is quashed, the ground may afterwards be shewn by parol evidence. This was laid down by all the Court in Rex v. Wick St. Lawrence (b). The judgment of a prize court is not conclusive as to the ground of judgment unless the ground be expressly stated; Fisher v. Ogle (c), Dalgleish v. Hodgson (d). An estoppel must be certain, and not raised by inference or intendment; 1 Roll. Abr. 874, tit. Estoppell (R) pl. 3, 4.; Hales v. Risley (e), Rex v. Lyme Regis (g). 1 (b) 5 B. & Ad. 526. (d) 7 Bing. 495. (g) 1 Doug. 149. 159. V. ants of ST. ANNE'S, WESTMINSTER. Lord DENMAN C. J. The attempt in this case is, practically, to enforce an estoppel. The sessions had quashed a former order, but with an entry that they quashed, not upon the merits, and without prejudice to the making of any other order for removing the pauper. The argument now is, that that special entry is to be excluded from the judgment, and the quashing of the order taken as final. We perfectly understand what is meant by such an entry: and probably the sessions, in making it, were rather influenced by our suggestions in Rex v. Wick St. Lawrence (a). There is no reason to doubt that they understood what their entry meant. The truth, by some accident, was not tried: the quashing was analogous to a nonsuit, and was intended not to bar the respondents from removing again. The ground may have been the accidental absence of a witness, or some other such cause as has been suggested: if that was so, the sessions may have been wrong in making the entry: but it is otherwise if the order was quashed (as it may have been) on grounds not decisive of the question of settlement. I think, therefore, that the present order of sessions is right. Ex parte Overseers of Ackworth (b) is consistent with this decision; for, the sessions there having made their orders expressly, "not on the merits," the learned Judge would not interfere with an entry which, whatever his opinion of it might be, they were competent to make. PATTESON J. If we held now that the sessions might have received evidence of the ground on which the former Court of Quarter Sessions discharged the (a) 5 B. & Ad. 526. (b) 3 Q. B. 397, note (a). order of March 1844, we should have misled them by our judgment in Rex v. Wick St. Lawrence (a). The remarks there made were intended to prevent the very difficulty now raised, and will have worked a deception if we are to say now that the words "not on the merits" mean nothing. The attack I unfortunately made on that expression in Ex parte Overseers of Ackworth (b) shews that we ought to be careful in making comments of this kind. If I thought the phrase unsatisfactory, it may have been because I was more accustomed to the language of pleading than to that of proceedings at sessions. COLERIDGE J. It is admitted that the same question arose in this case which the former Court of Quarter Sessions had considered not to be decided on the merits. The point here really is, what the words "not on the merits" mean. They may certainly have been used, in a popular sense, as signifying that the sessions decided the appeal on some ground which appeared to them merely technical, though in law it was final. If so, the expression was a wrong one; but we are not to presume that it was used in that sense; and the words "without prejudice to the making of any other order" tend to shew the contrary. WIGHTMAN J. I am of the same opinion: and Mr. Pashley's own argument goes a great way in proving to me that the respondents ought not to have been held estopped from entering into their case. Order of sessions confirmed (c). Queen's Bench. 1847. The QUEEN V. The Inhabit- (a) 5 B. & Ad. 526. (c) See the next four cases. (b) 3 Q. B. 397, note (a). |