Tenthly, Power of sessions in orders of removal.

their bounden duty: for, otherwise, the Court will grant a mandamus to compel them to enter continuances, and hear the appeal at a subsequent sessions." Bodmin v. Warlingen, 2 Bott, 733; and Rex v. J. Westmoreland, 2 Bott, 734, are cited in support of, but do not support these positions. In the former case, the justices neither made any order, nor adjourned the 1. Of their judgappeal; and at the following sessions the order of removal was quashed, ment, &c. and this Court quashed that order of session, because it was made without an adjournment. In the other case, the justices neither gave judgment, nor adjourned, and on an application for a mandamus, though the Court entertained an opinion in its favour, nothing was done: but if a mandamus had been granted, that would only shew that the Court will compel the sessions to proceed to judgment, on an appeal which they have begun to hear, and improperly refused to go on with. It was also urged, that this was not like an appeal to the House of Lords, where, if the house be equally divided, the respondent prevails, for the presumption is in favour of the respondents, who have the judgment of the Court below. But that an appeal against an order of removal is, in reality, an original proceeding. Contra, it was argued in Bodmin v. Warlingen. The Court said, that where the justices were equally divided, that was a sufficient warrant for the clerk of the peace to have entered an adjournment, and it was his duty so to have done. -Abbott, C. J. I think the rule for a mandamus ought to be discharged. It appears, that, in this case, the sessions have given their judgment. This Court is not a court of error from that Court; it may compel the sessions to proceed to hear and decide the appeal: but when they have so determined it, this Court cannot compel them to correct their judgment, if it appear to be erroneous. It is unnecessary to say, whether the judgment pronounced by the sessions is erroneous, because we are of opinion, that if it were so, we have no authority to compel them to correct it.

Rex v. Gudrige, 5 B. & C. 459; 8 D. & R. 217; 4 D. & R. Mag. Ca. 35. A writ of certiorari issued under these circumstances. Upon an appeal against the accounts of the overseers, the order for allowance was quashed. The respondents applied for a case, but a majority of justices, then present, refused it. After some of them had left the court, a case was again applied for; and three voted for, and two against it. One of the three was a rated inhabitant of the respondent parish, and had not voted on the decision of the appeal. The case was afterwards drawn, without the concurrence of the appellant.-Abbott, C. J. We think it the safer course to hold, that magistrates should not interfere in cases where they are interested; and that the rule for quashing the certiorari (quia improvide emanavit) must be made absolute.

Rex v. J. Monmouthshire, 8 B. & C. 137; reported as Rer v. Uske, 2 M. & R. 173. Application for a certiorari to bring up an order of removal, and an order of sessions for adjourning the appeal against the said order, that the same might be quashed. It appeared that four justices were present at the appeal. One of them was the removing justice, and rated to the poor of Uske, (the respondent parish). He, and one other justice, voted for the respondents, and the other two for the appellants. The chairman announced that the Court was divided. The appellants then moved to quash the order, because the respondents had not made out their case. But the Court adjourned the appeal.-Lord Tenterden, C. J. This rule must be discharged; but I wish to have it clearly understood that, in doing so, we do not, in any degree, intend to sanction a magistrate's voting in any case in which he is interested. It is contended that, though the justices were divided in point of fact, that in point of law the vote given by the party interested was a nullity, and that the sessions ought to have quashed the order. The late decisions establish, that we cannot assume to ourselves the jurisdiction of a court of error, and revise the judgment of the sessions. It is said, that the sessions had not jurisdiction to make the adjournment. It is clear, that they had jurisdiction to make any order concerning the appeal; and, among others, the order that the hearing should be adjourned. In Rex v. Gudridge the rule, which had been obtained, was not to review the order of

Magistrates canpeals where they are interested.

not vote on ap

By the vote of an the Court were interested justice equally divided, and an adjourn

ment was entered. Assuming

this to be wrong,

K. B. cannot review it.

Tenthly, Power of sessions in orders of removal.

1. Of their judgment, &c.

Where judgment

was entered by mistake, on a

votes, the Court

of K. B. refused

to interfere.

the sessions, but to quash the certiorari, quia improvide emanarit. The question before the Court was, Whether that writ ought to have been allowed to issue to remove an order of sessions, made under circumstances similar to those in this case? And the Court thought that the certiorari ought not to have issued. Here a judgment has been pronounced by the sessions, relating to a matter over which the Court had jurisdiction; and assuming their judgment to be erroneous, I think we have not jurisdiction, as a court of error, to review it. Rex v. J. Leicestershire, 1 M. & S. 442. This was an appeal against an order of two justices, for the removal of William Clifton from Market miscalculation of Harborough to Biddenham, which came on to be heard at the Epiphany sessions, when the chairman pronounced the judgment of the court, for confirming the order; but one of the justices who made the order, being present at the hearing of the appeal, inquired of the clerk of the peace, whether he was not one of the justices making the order; and being answered in the affirmative, observed that, it being contrary to a rule of that court, for justices who had made orders of removal to vote on the hearing of any appeal thereon, his vote, in this case, must consequently be withdrawn ; and therefore, judg ment must be for quashing, instead of confirming the order, as by taking away his vote, the majority would be against confirming, and for quashing the same. The clerk of the peace thereupon entered the judgment of the court for quashing, without perceiving at the time, that, by withdrawing the vote of the said justice, the votes of the remaining justices would be equal; whereon, by the rules of the court, an adjournment of the appeal should have been entered, instead of a judgment to quash the order. Under these circumstances, a rule nisi was obtained for a mandamus to the justices, to enter continuances on the said appeal, to the next general quarter sessions, and then to hear and determine the same.-Lord Ellenborough, C. J. If any error was made in the entry of the clerk of the peace, that error should have been pointed out at the sessions, while the court was sitting, and competent to reform its own errors, and to draw out a more correct judgment. If no judgment had been pronounced, the court might have interposed; but here there is a judgment. The party who would have corrected the error, should have applied to the proper forum, and in due time; and if it had been found that the numbers were equal, nothing would have been done upon it; for it would have been a nullity: but here no step of that sort was taken, but judgment was entered; and this Court cannot, in order to supply a remedy, exercise a jurisdiction which does not belong to them.-Grose, J. This Court ought not to countenance such an application, inasmuch as the error should have been noticed at the time.-Bayley, J. Except in matters of a criminal nature we cannot look dehors the record. This Court cannot sit as upon a scrutiny before an election committee. In Bodmin v. Warligen, (2 Bott, 982,) the objection appeared upon the entry of record, made by the clerk of the peace. Rule discharged.

Sessions may alter an order

made at the same

sessions.

But one sessions cannot quash the order of a former sessions.

2. Of special

cases.

In Battersea v. Westham, 2 Bott, 930. The sessions may confirm an order, which they had previously, at the same sessions, quashed.

Rex v. Cuckfield, 2 Bott, 925. The sessions cannot make an order of review, and quash an order of sessions made at the preceding sessions.

case.

2. Of Special Cases.

Whenever the sessions entertain a doubt upon the law, as applicable to the facts disclosed upon the hearing of an appeal, they are in the practice of authorising the party against whom they decide, to have their judgment reviewed by the Court of King's Bench. This is called granting a special The sessions, however, are not bound to this course, whenever they are pressed to adopt it by the counsel for the defeated party, but may exercise their discretion; and where they have no doubt in their own minds, they ought to refuse, in order to save the parties from further expensive litigation. Rex v. Darley Abbey, 14 East, 285. On the other hand, Lord Hardwicke said, that if the justices will not state the facts specially, though requested to do

so, when the matter is doubtful, this is very blameable conduct in them. See Rex v. Preston-upon-the-Hill, (infra).

This practice of stating a case for the opinion of the Court is a very wholesome substitute of the old mode, by which the facts were specially stated in the order of sessions, and then referred to the judges on the circuit. The appeal for this purpose was adjourned, and then the order of removal either quashed or affirmed, according to the opinion of the judge. Still the order might be removed into the King's Bench; and in Cuerden v. Leyland, (ante, 463), was quashed, though the judge on the circuit had given an opinion in favour of it. But Rex v. Natland, (ante, 601), the sessions directed a case to be drawn up for the opinion of the judge of assize, and agreed to be determined by his opinion. The judge heard counsel on both sides, and gave his opinion; and, upon a notice for a certiorari, Lord Mansfield observed, that here was a manifest consent of the parties to this reference to the judge, and therefore it was like all other references, by consent; and after this consent, he thought it very improper to take the matter up again. If the justices will not state the case specially, though it may be blameable conduct in them, in some instances, yet there are no means to compel them. In Rex v. Oulton, M., 9 Geo. II., Burr. S. C. 64, an order of removal, upon appeal, was confirmed generally, without stating any case. The appellants excepted, at the sessions, to their refusing to state the case specially, and delivered into court a bill of exceptions under their hands, which was read and received by the court. The substance of the exceptions was, that the children removed after their father's death, went with their mother to an estate of her own, at Burnham Overy, and there inhabited with her upwards of three months. These exceptions were returned, up together with the orders. And it was moved to quash the order of sessions, together with the order of removal. The Court were inclinable to come at this case if they could, as it seemed to be a determination against law.—But by Lord Hardwicke, C. J. To what purpose should we make a rule to shew cause why this order of sessions should not be quashed? For I do not see that we can ever make such a rule absolute; because this, that is alleged to have been the real state of the case, doth not appear to us to be the fact. And how can we take it for granted that it was the real fact? 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. But still we must go according to the due course of law. And Mr. J. Page said, he never knew an instance that this Court could force the justices, against their will, to state a special case.

Tenthly, Power

of sessions in orders of removal.

2. Of special cases.

Special cases substituted in place judge of assize to determine.

of statement for

Sessions are not compellable to

state cases.

A bill of excep

tions does not lie to the quarter

Rex v. Preston upon the Hill, Burr. S. C. 77. Order for removal from Daresbury to Preston, upon appeal, confirmed generally; not caring to state any special case in their order. A motion was made to quash these orders, sessions. which came before the Court upon a bill of exceptions, containing a special state of the case. On shewing cause, the single question was, Whether a bill of exceptions would lie in this case to the court of quarter sessions ?-By Lord Hardwicke, C. J. This is a case of great consequence, and there may be very great inconveniences on either side. It hath 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 the justices will not state the facts specially (though requested to do so) when the matter is doubtful, this is a very blameable conduct in them, and it is to be wished that it might be avoided. On the other hand, there may be very great inconveniences arising from the abuse of bills of exceptions. And this matter of the settlement of the poor, which ought to be rendered cheap and speedy, may, by such means, be rendered dilatory, expensive, and burthenAnd after a full hearing of the arguments on both sides, the Court were unanimously of opinion, that a bill of exceptions doth not lie to the quarter sessions.

some.

It was moved to set aside an order of sessions, confirming an order upon The justices at

Tenthly, Power appeal. But the Court would hear nothing of the merits of the cause, the of sessions in order of sessions being in that case final, unless there had been error in form. 1 Vent. 310.

orders of removal.

2. Of special

cases.

South Cadbury v. Braddon, M., 9 Anne, 2 Salk. 607; 2 Bott, 751. On appeal to the sessions, the Court discharged the first order. It was moved to set aside the order of discharge, because the justices do not say whether they discharge it for form, or on the merits. But by the Court. The jusbound to express tices are not bound to express the reason of their judgment, any more than other courts; but the reason of their judgment must be collected from the record, as where judgment is arrested upon an insufficient indictment.

sessions are not

the reason of their judgment.

The justices

should find the facts, and not

merely state the evidence from which the facts are to be drawn.

If the sessions reverse the first order, and that, being removed, appears to be good, this Court must intend it was reversed on the merits, and affirm the order of sessions.

If the sessions reverse the first order, and that, being removed, appears not to be good, we must intend it was reversed for form, and affirm the order of reversal.

So, if the sessions aflirm the first order, and that appears to be good, we must affirm the order of sessions.

But if the first order appears bad, and the sessions affirm it, this Court must reverse it, because it appears naught.

In stating a case, it is the duty of the justices to find the facts, and not to state the mere evidence of the facts; and leave the Court of King's Bench to draw the inference which the justices below ought to do. Rex v. Lyth, (ante, 334); Rex v. Bottesford, (ante, 401). But where the sessions stated that it appeared to them that the pauper was bound, the King's Bench thought this sufficient, as "it is not necessary that the evidence should appear to us." Rex v. E. Knoyle, (2 Bott, 644). If a particular term has acquired a local meaning, the sessions must state the sense in which the word is used, for, without such explanation, the King's Bench will understand it in its ordinary meaning; and in this case the order of sessions was quashed. Rex v. Thornham, (ante, 538,) where it was insisted that the term, "Landsell Colliery," imported an interest in land.-Willes, J., said, We cannot take notice of the meaning attributed to the term, and said to be so understood, in the North, by the trade, unless it were so stated to us. Rex v. N. Bedburn, (Cald. 452). The justices are also the proper judges of fraud, although it may be a question for the King's Bench, Whether the fraud, so found, prevents the pauper from gaining a settlement? See Rex v. Birmingham, (ante, 726,) see also Rex v. Tedford, (ante, 626). Rex v. Kibworth Harcourt, (ante, 572,) where the sessions draw a conclusion, and state the facts specially, the Court of King's Bench will not, although they do not concur in the inference drawn, disturb the decision, if there are any premises to warrant it. Rex v. St. Andrew, Cambridge; Rex v. Rosliston; Rex v. St. Martin, Leicester. "If, upon a case stating evidence only, the Court of King's Bench should think the conclusion drawn by the sessions wrong, they would probably deem it better to send it back for revision; but where the conclusion appears to be right, it would be useless to send it down again."-Abbott, J. (Rex v. Great Yarmouth, ante,737). So, also, the order of sessions will be confirmed, when the ultimate decision, although founded on wrong grounds, was correct. Rer v. Skeffington, (ante, 514). When the case is insufficiently stated, the King's Bench frequently send it back to be re-heard. But it was agreed, in Rex v. Wykes, (ante, 745,) that it could not be done without consent; and the counsel, against the order of sessions, refusing to consent, the order of sessions was quashed. Where the sessions were of opinion that an indenture was void, and the King's Bench thought otherwise; "as the merits of the case had not been gone into at the sessions," the case was sent down to be re-stated. Rex v. Winwick (a), (ante, 481).

(a) In Rex v. Laindon, n., the Court said, that a formal objection to the order ought not to be permitted, when both

parties had agreed, by drawing up the special case, to take the opinion of the Court on the merits.

Tenthly, Power

of sessions in orders of re

cases.

moval.

Rex v. Bray, Burr. S. C. 682; 2 Bott, 993. The sessions stated the evidence only, and not the fact of hiring. It was sent back to be re-stated: and the majority of the justices there refused to re-examine the pauper, or to hear any further evidence; although three of the justices then on the bench had not been present at the appeal. It was moved to send it again 2. Of special to the sessions, to be a second time re-stated. Rex v. Page, M., 1764, was cited, where the question was, Whether a man was occupier of tithes, or only bailiff? The sessions was ordered to hear further evidence; and did so, and cited Rex v. Hitcham, H., 33 Geo. II., where the sessions did re-examine the fact, whether the pauper was a single or a married man, when hired ?— Unto this it was answered, that in both of these cases it was necessary to hear the evidence again: in the present case, it was not necessary; the matter was fully examined into before; the sessions had stated the evidence, without drawing the conclusion; the Court thought the sessions ought to have drawn the conclusion, and sent it back to them for that purpose only. They have now done so. They have stated a hiring for a year. And this Court have now received all the information they wanted.-By Lord Mansfield, C. J. Whether the justices, at the second sesssions, were or were not obliged to hear new evidence, is a question that must depend upon the nature of the case. In Page's case, new evidence was necessary. But in the present case, it was sent back only to cure an informality. Here, the pauper had before given a full account of the agreement. Therefore the justices, at the second sessions, did very right in not examining him over again.

In Rex v. Bromley, 6 T. R. 330, which was an order for the removal of Sarah, widow of J. Ward; the respondents proved the settlement of J. Ward on the appellant parish, and then cohabitation with the pauper as his wife. The appellants then called Sarah, to prove that they were never married, and the Court refused to hear her.-Lord Kenyon said, the evidence was admissible, but the sessions must judge of the effect of it. It was then proposed, that, on the re-hearing, the sessions should be confined to the examination of Sarah, and of witnesses to that particular point, without putting the respondents to the expence of proving their case again.-Lord Kenyon. The whole case must be gone into again at the sessions. remember a case, some years ago, when the same objection was made, and Lord Mansfield said, that it was like granting a new trial, in which case the whole case must be proved.

I

After the determination of an appeal at the sessions, if the order is reversed, and the paupers will not, or are not able to return of themselves, to the place from whence they were improperly removed, it seemeth that the place where they are, cannot lawfully be rid of them but by another order of the justices, setting forth the matter specially. In Honiton v. South Beverton (Comb. 401; 2 Bott, 909), two justices remove a man from Honiton, Devon, to South Beverton, Somerset. They appeal to the sessions in Devon, where the order is reversed. Now two justices of Somerset may, by order, remove him to Honiton again; for it is but an execution of the order of sessions, which could not otherwise be done, because it is out of the jurisdiction of the court of sessions.

Rex v. J. Sussex, 1 M. & S. 631. A rule was obtained for a certiorari to remove an order, in an appeal between Billinghurst and Slinfold. The affidavits stated, that the appeal had been heard at the Michaelmas sessions, when the order was confirmed, subject to the opinion of K. B. on a case to be stated. A case had been drawn by counsel for Billinghurst, in November, which was not approved of by the solicitor for Slinfold; but, although frequent applications were made to him, he would not state his objections. The case was afterwards settled by the Court, at the Epiphany sessions, and a copy sent to the solicitor for the respondents; and he was again applied to, to have the case set down for argument: this request he refused to comply with; but, at the same time, gave the solicitors for the appellants to understand, that they need be under no apprehension, as he would consent to a certiorari issuing, without regarding whether the six months had expired or not. Under the impression that the certiorari would be consented to, the