sessions for its opinion, and accompanying (o) the order, conviction, &c., when these last are removed by certiorari. In this manner, and not otherwise, will it overrule the decision of sessions, if it appears requisite to do so (p).

As to the propriety of granting or refusing a special case, Lord Hardwicke has said (9), " It has been much wished that a bill of exceptions would lie to the justices at their sessions, because otherwise it may sometimes happen that they may determine in an arbitrary manner, contrary to the resolutions of the courts of law. For if, when the matter is doubtful, they will not state the facts specially, though re quested to do so, this is very blameable conduct in them, and it is to be wished that it might be avoided." He also added, “It is a thing very much to be censured and discommended, when an inferior jurisdiction endeavours to preclude parties from an opportunity of applying to a superior."

But however proper it is to grant a special case at the request of either litigants, where a reasonable doubt on the subject is suggested, the sessions will best consult the interest of the public, and avoid unnecessary expense, by refusing it where they believe the application to be founded merely on obstinacy or a spirit of litigation (r).

The summary jurisdiction of the justices over the civil business of the sessions places them in the situation of jurors and judges conjointly. As jurors, they are to elicit the facts from the evidence; and as judges, they are, if they think fit, to apply and declare the law arising out of them. This, their position, gives birth to two results;

viz.

First, that they are not compellable to grant a special case (s).

(0) Whether the certiorari is lost, must depend on the wording of each act, which, as we have seen, must be express to have this effect. In R. v. Middlesex (Justices), 8 D. & R. 117, a local act prevented the removal by certiorari of any "rate, proceeding, conviction, matter, or thing." Tindal moved for a certiorari to remove into K. B. a special case which the sessions had granted, but the court said the language of the section was too strong to be got over, being clearly comprehensive enough to embrace a special case as a thing, and refused the motion.

(p) R. v. Allen, 15 East, 233; R. v. Carnarvon (Justices), 4 B. & Ald. 86; Ex parte Pratt, 7 Ad. & E. 423; S. C.

2 N. & P. 102; R. v. Cumberland (Justices), 4 Ad. & E. 695; 5 Nev. & M. 578. If only one question is reserved by sessions, the court will not consider any other, R. v. Guildford, 2 Chit. R. 284; R. v. Aire Navigation, 2 T. R. 666.

(q) R. v. Preston-on-the-Hill, Burr. Sett. C. 77; and see ante, p. 659.

(r) See per Bayley, J., in R. v. Burbach, 1 M. & S. 376; and R. v. Darley Abbey, 14 East, 285.

(s) If they confirm an order of removal generally on appeal, though the order of sessions is final in that case, except for error in form apparent on the face of it, 1 Vent. 310, (for no affidavit of the facts can be received, 2 M. & S. 321, R. v. James, at least where they have

Facts, with the Conclusions drawn from them by the Sessions, are to be stated, and not Evidence only.]-Secondly, the only matter which the sessions can in these cases remit to the superior court, is their authority to judge of the law (t); from whence it follows, that questions or conclusions of fact arising on the evidence, form no part of that subject matter on which the court above is to exercise its discretion. This occasions the rule, that the facts or conclusions drawn from the assertions of the witnesses at the hearing must be specifically stated in the case as found by the justices, and not merely that testimony from which those facts were or might have been deduced (u). For this last course would leave the court to draw the inference which the justices below ought to have done (v).

This rule is most important to be observed, as the neglect of it will often occasion a case to be sent back to the sessions to be re-stated. It will therefore receive a few examples by way of illustration.

Where on an appeal respecting a pauper's settlement, the question depends on an equivocal hiring, or a doubtful service for a year, the fact of hiring or service is to be found by the sessions one way or

jurisdiction, R. v. Cheshire (Justices),

8 Ad. & E. 398; 1 P. & D. 88, S. C.; R. v. Great Marlow, 2 East, 244, as cited 3 M. & S. 312,) they cannot be compelled to state a case, R. v. Oulton, Burr. S. C. 64; 2 Nol. P. L. 55, 4th ed., because a case must always depend on particular facts which it is their exclusive province as sessions to find. So that when they refuse a case, what is alleged to have been the real state of the facts, so as to prove their determination to be against law, cannot appear to be so to the court above. Thus, if they have general jurisdiction in the subject matter, by making a general judgment or order good on the face of it, so as not to be removable by certiorari, they may, if they will, stop the parties from taking the opinion of a superior court on the most doubtful law. See observations, ante, p. 659, and R. v. Atkins, 4 T. R. 21.

If then the entry of the sessions as to an order appealed from, and irregular on the face of it, is "quashed for informality," it will be held to mean "quashed, but not on the merits," so as to prevent it from being conclusive on other parties; and the order of sessions of removal by certiorari will not be quasbed as defective on the face, no special case being sent up, R. v. Cot

tingham (Inh.), 2 Ad. & E. 250; 4 Nev. & Man. 215.

(t) The court above will hold itself concluded by a fact found by the ses sions; as, e. g. that the appellant was occupier of the property in question, R. v. Hurdis, 3 T. R. 497; that the landlord and not the tenant was the party intended to be rated, R. v. Rainham, 5 T. R. 240; R. v. Folkstone, 3 T. R. 505; that the governor of the workhouse was an annual office, R. v. Ilminster, 1 East, 83, &c. &c.

(u) R. v. St. Cuthbert, Wells, 3 N. & M. 100; R. v. Martley, Burr. Sett. C. 120; R.v. Luffington, 1 Wils. 74. Special orders of sessions are considered in the nature of special verdicts quoad hoc, R. v. Martley.

(v) R. v. Lyth, 5 T. R. 327; R. v. Bottesford, 4 B. & C. 84; 6 Dowl. & Ry. 99.

It is sufficient if the sessions state, that it appears to them that the pauper was bound, R. v. East Knoyle, 2 Bott, 644. If the ordinary meaning of a term is displaced by a local acceptation, the sessions must explain the latter, or effect will be given to the first, even to the quashing their order, R. v. Thornham, 6 B. & C. 733, on the meaning of "ewes going;" R. v. North Bedburn, Cald. Ca. 452, on that of "Landsell Colliery."

other, from the evidence, such as it may be; and stating the evidence only without drawing the conclusion will not suffice (w). So whether a master gave a particular consent to his apprentice to serve a third person, is a matter of fact, which, let it rest on ever so ambiguous testimony, must be found one way or other, and not left doubtful on the face of the case (x). For the same reason, in a question of service under a hiring, the sessions must find whether the service was dispensed with, or the contract dissolved (y). Again, on a claim of settlement by residence on an estate, the sessions must state the interest which the pauper took, whether he came in by descent or purchase, and if the latter, the price of such purchase (z); that so it may appear on the face of the case, whether it was such a purchase as would confer a settlement. Frauds, whether affecting the parties merely, or the gaining a settlement in the parish sought to be burdened, are facts which must be considered and adjudicated on by the sessions (a); and being facts, must be specifically found and stated accordingly (6). For it is not enough to state evidence, though clearly leading to the most palpable conclusion of fraud, if the court above is left to draw that conclusion (c). In some cases the evidence itself, as well as the fact or conclusion drawn from it, have both been stated, which course appears erroneous, as it tends to the obvious inconvenience in point of practice, that if the court above should differ from the sessions as to their conclusion, they could not regularly interfere, and thus in appearance an opinion is asked from them which they cannot judicially give (d). Further, sessions are not merely to find or state facts, but to draw conclusions from them; e. g. whether there was a contract of hiring or apprenticeship. However, where they do both, the court will not in general disturb the finding,

(w) R. v. Bray, Burr. S. C. 686, per Lord Mansfield; and see R. v. Great Wishford, 4 Ad. & E. 216; 5 N. & M. 540, S. C.

(x) R. v. Shebbear, 1 East, R. 73. (y) R. v. St. Peter, Norwich, 8 T. R. 477.

(z) R. v. Warblington, 1 T. R. 241. (a) Reg. v. Barmston (Inh.), 7 Ad. & E.858; 3 Nev. & P. 167; R. v. Gravesend, 3 B. & Ad. 240. The old rule was confined to frauds on the parish, R. v. Tedford, Burr. S. C. 57. See 4. Ad & E. 211,219. (b) R. v. St. Cuthbert, Wells, 5 B. & Adol. 939; S. C. 3 N. & M. 100; R. v. Tellingham, 1 B. & Adol. 180. Whether the fraud so found prevents the settlement from being gained may be a

question for the queen's bench, ibid.; R. v. Birmingham, 14 East, 251; R. v. Kibworth, 7 B. & C. 790; 2 Man. & Ry. 28.

(c) R. v. Llanfihangel Abercowin, 4 N. & M. 355; per Buller, J., in R. v. Fillongley, 1 T. R. 461. Fraud, when found generally by the sessions, has been held to bind the court above, R. v. Llanwinio, 4 T. R. 373;-unless the sessions quash an order for fraud, and state the facts particularly on which they find it, in which case the question of fraud or not being still open upon the facts, the court above may decide it in the negative, R. v. Tedford, Burr. S. C. 57; R. v. St. Nicholas in Harwich, id. 171.

(d) R. v. Tedford, Burr. S. C. 57; R. v. Bowling, id. 171.

unless the case shows it to have been without, or contrary to, evidence (e). The court above will not infer anything which should have been stated on the case but is omitted, nor will they send it back on that account to be re-stated (ƒ); nor will the court entertain objections to orders of sessions, which on the face do not appear necessarily bad, unless the particular facts are brought before them by a special case (g). Again, if the facts disclosed by a special case do not show the decision of sessions to be necessarily wrong, their order will not be disturbed (h).

It seems to be the duty of counsel to take care, as far as lies in their power, that, as well all material facts proved, as all inferences of fact to be drawn from the evidence, should be found by the justices and duly noted down by the chairman; and that the signatures of counsel to a special case should be taken as guaranteeing this to have been done (i).

Practical Steps necessary to the Drawing and Settling a Special Case; with its General Requisites.]—The procuring the statement of a special case after it has been granted, is thus carried into effect. In contemplation of law, it is taken to be stated by the justices at sessions (j); but as the accuracy requisite makes it desirable that it should be framed by counsel (k), it is usually drawn by the junior counsel for the party on whose application it is granted, being afterwards sent to the junior counsel on the other side for his perusal and approbation. Differences between them as to its contents are settled by reference to the chairman's notes. The case is then signed by the junior counsel on each side. If no counsel are employed, or if

(e) Per Coleridge, J., in R. v. Great Wishford, 4 Ad. & E. 224, and R. v. Rosliston, &c. post, p. 909. See, however, instances where the court of king's bench has disregarded this doctrine, and reversed the finding of sessions on the evidence as stated by them; see R. v. Ardington, 1 Ad. & E. 260; R. v. Threkingham, 7 Ad. & E. 848. See post, p. 909. Also R. v. Rickingall Superior, 1 N. & M. 47; R. v. Claxby, id. 118; R. v. Nether Knutsford, 1 B. & Adol. 726.

(f) Settlement by apprenticeship of a person deceased. To let in parol evidence of the contents of the indentures, the sessions admitted evidence of the widow of the pauper, that pauper told her he had had them from his master and worn them out in his pocket. No evidence of having searched for the inden

tures was given, or consequently stated, on the case, R. v. Rawden, 2 Ad. & E. 156. See contra, 4 Ad. & E. 216.

(g) R. v. Cottingham (Inh.), 2 Ad. & E. 250; 4 Nev. & M. 215.

(h) R. v. Snape, 6 Ad. & E. 278; Nev. & P. 429.

(i) Reporter's note, 5 N. & M. 540, R. v. Great Wishford.

(j) Per Parke, J., MSS. cited in 1 D. P. C. 167.

(k) Per Cur. in R. v. Woolpit, 4 Ad. & E. 216; S. C. 5 N. & M. 526, 538. In one case an order of removal, and an order of sessions confirming it, were quashed for the imperfect statement of facts in a special case. See R. v. Luffington, Burr. S. C. 232; R. v. Dursley, 6

T. R. 53.

they cannot agree on the facts to be stated, even with the chairman's assistance, he may, with the concurrence of a majority of justices on the bench, state and sign the case himself (7).

In general, when a case is specially stated, it is taken to contain the full reasons of the order of sessions; on which account, if the court hold those reasons to be ill, they will quash the order (m).

There is no specific form or precedent according to which a special case must be drawn (n); but, nevertheless, there are certain rules to be collected from a long succession of determinations which have been alluded to. Stating the facts, &c. merely, without distinctly setting forth the points intended for consideration, is very inconvenient (o).

The justices should not only state all the facts which they consider necessary to enable the court to form an opinion on the point of law respecting which they want information, but those also which are material, and were proved before them, that it may be a true state of the case (p); for the court will not permit a general or speculative question of law to be raised, by omitting any particular circumstances belonging to the case before them, which are material to its decision (q).

When justices decide that a special case shall be made, they virtually say, that the cause shall be adjourned till that is done; and, therefore, the want of the necessary adjournment or respite is merely the omission of the clerk, and may be supplied at any time (r).

Setting down Special Case for Argument-Suing out Certiorari to Remove Order-Mandamus, if Special Case is not brought up.]—Within six months (s) after the making the order of sessions on which the case is granted, the unsuccessful party should sue out a certiorari to remove the orders of sessions and justices: and whether the case is then settled or not, is immaterial. The writ is obtained on a motion paper, signed by counsel (t). The case, when settled, may be afterwards set down

(1) R. v. Great Wishford, 5 N. & M. 540; 4 Ad. & E. 224, S. C.

(m) Per Lee and Page, Js., in R. v. Tedford, Burr. S. C. 57.

(n) A form is, however, given in 4 Burn's J. by Chitty, 28th ed. 1111; and the form in R. v. St. Paul's, Exeter, 10 B. & Cr. 12, is approved. See also as to stating the question for the court, R. v. Ightham, 4 Ad. & E. 937; 6 N. & M. 320, S. C.

(0) R. v. Harbury, 1 B. & Adol. 360. (p) R. v. Dursley, 6 T. R. 53. See per Lord Hardwicke, C. J., R. v. Ted

ford, Burr. S. C. 57; 2 Nol. 4th ed. 563.

(q) R. v. Francis Hill, Cowp. 613; 2 Nol. 654; 4 Burn by Chitty, 619, 28th ed. Case sent back to be re-stated.

(r) Per Cur. in R. v. Sussex, 2 Bott, 6th ed. pl. 1002. See R. v. Hedingham Sible, Burr. S. C. 112; 2 Nol. 566, 605, semb. contra, 4th ed.

(8) R. v. Staffordshire (Justices), 1 .D. P. C. 484; 13 G. II. c. 18, s. 5. Post, p. 924.

(t) See 4 Burn's J. by Chitty, 28th ed. 926, and post, p. 920. There was