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So, when the matter is doubtful, this is very blameable conduct in them. Tenthly, Power See Rex v. Preston-upon-the-Hill, (infra).
of sessions in This practice of stating a case for the opinion of the Court is a very
orders of rewholesome substitute of the old mode, by which the facts were specially
moval. stated in the order of sessions, and then referred to the judges on the circuit.
2. Of special The appeal for this purpose was adjourned, and then the order of removal cases. either quashed or affirmed, according to the opinion of the judge. Still the Special cases suborder might be removed into the King's Bench; and in Cuerden v. Leyland, stituted in place (ante, 463), was quashed, though the judge on the circuit had given an opi- judge of assize to nion in favour of it. But Rex v. Natland, (ante, 601), the sessions directed determine. 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 blame- Sessions are not able conduct in them, in some instances, yet there are no means to compel state cases. them. In Re. y. Oulton, M., 9 Geo. II., Burr. S. C. 64, an order of removal, upon appeal, was confirmed generally, without stating any
The appellants excepted, at the sessions, to their refusing to state the case specially, and delivered into court a bill exceptions under their bands, 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.
Rex v. Preston upon the Hill, Burr. S. C. 77. Order for removal from A bill of excep, Daresbury to Preston, upon appeal, confirmed generally; not caring to state to the quarter 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 burthensome. And 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.
It was moved to set aside an order of sessions, confirming an order upon The justices at
sessions are not
should find the
evidence from which the facts
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. orders of re- 1 Vent. 310. moval.
South Cadbury v. Braddon, M., 9 Anne, 2 Salk. 607; 2 Bott, 751. On 2. Of special
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 their judgment.
other courts; but the reason of their judgment must be collected from the record, as where judgment is arrested upon an insufficient indictment.
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. The justices
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 fucts, and not
draw the inference which the justices below ought to do. Rex v. Lyth, merely state the
(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 are to be drawn.
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 Rer v. Laindon, n., the Court parties had agreed, by drawing up the said, that a formal objection to the order special case, to take the opinion of the ought not to be permitted, when both Court on the merits.
Rex v. Bray, Burr. S. C. 682; 2 Bott, 993. The sessions stated the Tenthly, Power evidence only, and not the fact of hiring. It was sent back to be re-stated : of sessions in and the majority of the justices there refused to re-examine the pauper, or
orders of reto hear any further evidence; although three of the justices then on the
moval. 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 cases. 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. I 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.
After the determination of an appeal at the sessions, if the order is reversed, What is to be 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 order of removal they are, cannot lawfully be rid of them but by another order of the justices, is quashed. 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. f. S. 631. A rule was obtained for a certiorari to A certiorari to remove an order, in an appeal between Billinghurst and Slinfold. The remove an order affidavits stated, that the appeal had been heard at the Michaelmas sessions, firming an order when the order was confirmed, subject to the opinion of K. B. on a case tó of removal by be stated. A case had been drawn by counsel for Billinghurst, in Novem- must be moved ber, which was not approved of by the solicitor for Slinfold; but, although for within
six frequent applications were made to him, he would not state his objections. after such order The case was afterwards settled by the Court, at the Epiphany sessions, and of sessions made, a copy sent to the solicitor for the respondents; and he was again applied and six days' to, to have the case set down for argument: this request he refused to com- motion must be ply with ; but, at the same time, gave the solicitors for the appellants to given to the jus. understand, that they need be under no apprehension, as he would consent 13 Gco. 2, c. 18, to a certiorari issuing, without regarding whether the six months had expired s. 5, notwithor not. Under the impression that the certiorari would be consented to, the standing the
done with the pauper when the
on a case to be stated, which was afterwards
Tenthly, Power usual notice to the justices, as required by 13 Geo. II. c. 18, s. 5, had not
of sessions in been given. It was contended, that the statute was only intended to enable orders of re- justices to shew cause against the granting such certiorari, and did not apply
moral. to this case, where the justices themselves had settled the case, and thereby 2. Of special
expressed their desire to have it brought up; and cited Lord Kenyon, in Rex v. Battams (1 East, 298).—Lord Ellenborough, C. J. The order of removal
was, in the first instance, a summary proceeding, and the order of sessions was made subject thereupon, was a revision of that which was originally a summary proceeding. the Court of K.B. I find nothing in the language of Lord Keym, on which an argument has
been raised, to the contrary: it is not applicable to the present case. Admit
ting that the magistrates may have wished, at the time when they settled the stated and settled case, to have brought it up; still there may be reasons, why they might think by the justices at fit to shew cause, and, unless it can be shewn, that it could serve no possible sessions.
end to give them six days' notice, we cannot so presume. The statute appears to me imperative.—Bayley, J., was not aware of any instance, where a certiorari had been granted, after the expiration of the six months, upon a case reserved, and that it was the settled practice to give the six days' notice. Rule discharged. The application was renewed in the same term (1 M.$ $.734), the six days' notice having been given to the justices. It was urged, that the above circumstances took it out of the general rule. Rex v. Winpenny (34 Geo. I.), was cited, where a similar application, for removing an order for the maintenance of a bastard child, was made after the six months, and allowed.-Lord Ellenborough, C. J. The statute expressly requires, that the certiorari shall be applied for within six calendar months after order made; and I think it will be attended with beneficial consequences, if we put a strict interpretation upon this clause, as it will have a tendency to accelerate the settling of the cases which are intended to be brought up for our revision. -Bayley, J. In strictness, the case ought to have been settled at the Michaelmas sessions, sedente Curiâ. Rule refused.
[It is now the practice, to issue the certiorari, upon the signature of counsel, though it appears, hy Rex v. Sawbridgeworth (1 Barnard, 297), that, formerly, there was a motion made for a rule nisi in Court, and, that case, the Court “ denied the motion, without so much as making a rule to shew cause."]
3. Of Costs and Maintenance. By 8 & 9 W. III. c. 30, s. 3. “For the more effectual preventing of rexatious removals and frivolous appeals, it is enacted, That the justices of the peace of any county or riding, in their general or quarter sessions of the peace, upon any appeal before them there to be had, for and concerning the settlement of any poor person, or upon any proof before them there to be made, of notice of any such appeal to have been given by the proper officer to the church wardens or overseers of the poor of any parish or place (though they did not afterwards prosecute such appeal) shall, at the same quarter sessions, award and order to the party from whom and in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given, as aforesaid, such costs and charges in the law, as by the said justices in their discretion shall be thought most reasonable and just, to be paid by the church wardens, overseers of the poor, or any other person, against whom such appeal shall be determined, or by the person that did give such notice, as aforesaid; and if the person ordered to pay such costs shall happen to live in any county, riding, city, or town corporate, or elsewhere, out of the jurisdiction of the said court, it shall and may be lawful for any justice of the peace of the county, riding, city, liberty, or town corporate, wherein such person shall inhabit, and every such justice is hereby required, upon request to him for that purpose to be made, and a true copy of the order for the pay. ment of such costs produced, and proved by some credible witness upon oath, by warrant under his hand and seal, to cause the money mentioned in that order to be levied by distress and sale of the goods of the person that is ordered and ought to pay the same; and if no such distress can or may be had, to commit such person to the common goal of that county or liberty, there to remain hy the space of twenty days."
3. Of costs and maintenance. 8 & 9W.3, c. 30, S. 3. Justices, on appeal to them concerning the settlement of any poor person, to award costs.
3. Of costs and
Rex v. J. Nortingham, 1 Ses. Ca. 422; 2 Bott, 776. A mandamus was Tentaly, Power granted for the justices to give costs to the party in whose favour the appeal of sessions in had been determined ; yet upon their return of it, the Court held it reason
orders of re
moval. able for them to have the power of judging whether costs shall be allowed or not, and quashed the mandamus.
Rex v. Stansfield, Burr. S. C. 205; 2 Bott, 776. The sessions adjourned maintenance. the appeal to the next sessions, and ordered four guineas costs to the appel- Allowance of lants; which order was quashed as to the costs; for the sessions cannot give costs on a mere adjournment of the appeal, without hearing it.
By 9 Geo. I. c. 7, s. 9. For the preventing of vexatious removals, if the adjournment. justices of the peace shall, at their quarter sessions, upon an appeal before them there had, concering the settlement of any poor person, determine in favour of the appellant, that such poor person or persons was or were unduly If appeal against removed, that then the said justice shall, at the same quarter sessions, order removed in der and award to such appellant so much money as shall appear to the said of appellant, the justices to have been reasonably paid by the parish, or other place, on whose justices shall behalf such appeal was made, for, or towards the relief of such poor person lant payment of or persons, between the time of such undue removal, and the determination expences as reof such appeal; the said money so awarded to be recovered in the same lieving the manner, as costs and charges upon an appeal are prescribed to be recovered by the said statute made in the ninth year of his late Majesty King William the Third, intituled, (c. 30.) An act for supplying some defects in the laws for the relief of the poor of this kingdom.
St. Mary's, Nottingham, v. Kirklington, 2 Sess. Ca. 67; 2 Bott, 776. Mandamus lies Motion for a mandamus to the justices, commanding them to allow Kirk- to enforce. lington the expence their officers had been put to, in keeping a poor person from the time of his removal, till the order was discharged by the sessions upon appeal. Mandamus granted.
Rex v. Great Chart, Burr. S. C. 194; 2 Boti, 1015. An order was Sessions must quashed by the sessions for insufficiency; and the sessions, thereupon, order either give, or that the costs of maintaining the pauper, since the time of his removal, shall at the time they abide the event of the cause, in case Great Chart shall think proper, by make their order. another order, to remove the pauper to Kennington; which order, as to the costs, was quashed by the Court of King's Bench, because the sessions must either give, or not give, costs at the time when they make their order.
Rex v. J. Norfolk, 5 B. f. A. 484; 1 D. 4. R. 69; 1 D. g. R. Mag. Ca. Appeal may be 22. An order for the removal of Hannah, the wife of E. George, had been entered after the executed, but, by consent of the removing justices, had been superseded. It abandoned of the did not appear whether the costs of maintenance, between the execution and removing parish.
Neglect to pay supersedeas had been paid. The sessions had refused to enter the appeal. Upon a motion for a mandamus, Bayley, J., said, In cases like this, the jus- maintenance. tices may exercise a discretion whether they will enter the appeal or not, so as best to answer the purposes of justice. "If the parties removing, do not choose to pay the expences of maintenance incurred, previously to the supersedeas, they may then enter the appeal for the purpose of compelling them to do so. If they are willing to do it, the sessions may refuse to enter the appeal.
the costs and
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