If the pauper is called for the respondents, the appellants' counsel may of course cross-examine him generally; but though the appellants will succeed if they can show the pauper to be settled in any other parish than their own, it is the more convenient course, and the practice of some sessions, not to allow the appellants to prove a subsequent settlement on such cross-examination; but, in case they rely on his evidence to prove a subsequent settlement, to require them to open their own case, and call him again as their witness. The respondents' counsel has, as we have seen, the general reply, if witnesses are called or evidence opened by the advocate for the appellants; but otherwise, the case closes with the address of the latter. If the respondents' counsel in his reply cites fresh cases, some courts of quarter session permit the opposite counsel to observe on them. This is also done in election committees, but not in the superior courts.

Though the only settlement which can be supported on either side, must be that which is stated in the examination or statement of grounds of appeal, it may be supported by any number of witnesses or amount of documentary evidence which either party may think fit to adduce; nor are the respondents bound to call the witnesses examined before the justices, or to rest content with their testimony if called (a).

It has been said that where an order is quashed generally, merely because respondents decline going into their case, that is a decision on the merits (b), and conclusive.

If two appeals are entered against one order, and it is quashed on one of them, the other should not be tried (c).

Judicial Power of Justices.]-The justices are not only the sole judges of the effect of evidence adduced on appeals, but of its admissibility no bill of exceptions lies against their determination on any point which may arise in the course of the trial (d); and if they should reject evidence on a misapprehension of the practice of their own court, or on a mistaken view of a rule of law, without sending up a case to the court above, the latter court will not interpose by mandamus to direct a review of their decision (e). For that would be in fact

to grant a new trial, which the court above has not jurisdiction to do (ƒ). But if they hear one side, and altogether refuse to hear the other, it seems a mundamus may issue as if the case had not been heard at all (g). See on this subject more fully, ante, p. 652.

Judgment to Confirm or Quash the Order of Removal.]-The only legal judgment which can be pronounced, is simply, that the order be confirmed or quashed; and may be given or altered at any time during the same session, or as it seems, by the same justices, at an adjournment of it (h). But they cannot supersede or suspend it, and make or add an original order of their own, e. g. for removing the pauper back to the respondent parish (i), or to any other parish (k). But where they quash an order of removal for form, only a special entry should be made accordingly (7). A judgment for quashing an order, if so entered by mistake for any other order pronounced by the justices, can only be corrected at the same sessions, or at an adjournment of them; for the queen's bench, not being a court of error from that court, will not correct its judgment, though it will compel it to arrive at one by hearing and deciding on an appeal (m).

Form of Order Embodying the Judgment of Sessions.]—In orders the margin is considered part of the order, and a clear reference to it in the body is sufficient (n). The order may state the judgment of sessions in terms of recital, without present adjudication (o). The removing justices must appear to have had jurisdiction, i. e. it must appear

parte Pratt, 7 Ad. & E. 27; S. C. 2 N. & P. 102: a case of the strongest kind, for the appeal was against a conviction on the game trespass act (1 & 2 G. IV. c. 32), which takes away a certiorari. See S. P. Reg. v. Rippon (Justices), 7 Ad. & E. 417; 2 N. & P. 411; and per Lord Denman, 8 Ad. & E. 400.

(f) Reg. v. Kesteven (Justices), 3 Q. B. 810, 819; Ex parte Pratt, 7 Ad. & E. 27.

(g) R. v. Carnarvonshire (Justices), 4 B. & Ald. 86, per Holroyd, J. And see R. v. Cumberland (Justices), 4 Ad. & E. 695; 5 Nev. & Man. 578. Complaint against a man under the vagrant act for refusing to maintain his wife and child; the justices in petty session heard the defendant's proofs adduced to show that he was not married, but refused to hear the complainant's evidence in support of a Gretna-green marriage before the child's birth, saying they would not indirectly try the vali

dity of a foreign marriage which was disputed. A mandamus issued, for as the justices exercised their discretion at first in deciding to hear the case, they were not right in refusing to hear the whole evidence offered.

(h) See Index, tit. Adjournment. (i) R. v. Milverton, 7 Mod. 10, and cases collected in R. v. Bond, 2 Shower, 503.

(k) R. v. Oswell and Woking, Salk. 472.

(1) Ante, p. 646.

(m) R. v. Monmouthshire (Justices), 4 B. & Cr. 844; 7 Dowl. & Ry. 334; second Monmouthshire case, 8 B. & Cr. 137 (post); R. v. Leicestershire (Justices), 1 M. & S. 442.

(n) Per Lee, C. J., in R. v. Holbeck, 1 Burr. S. C. 198. Approved per Cur. 1 New Sess. C. 455; Reg. v. Casterton (Inh.)

(0) Reg. v. Casterton (Inh.), 1 New Sess. C. 449.

from the order of removal set forth in the order of sessions, that they were justices in, or of (p), and for, the county in which the removing parish lies. Order of removal beginning" Westmorland, to wit, to the overseers of the township of K. L., and to the overseers of the poor of the township of C., in the said county," shows the township of K. L. to be in the county of Westmorland. The complaint was afterwards stated as "made to us, &c., two justices in and for the said county." Held a sufficient allegation that the justices were justices of the county of Westmorland (q).

The rules of proceeding on appeals against orders of removal, on collecting the votes, and on pronouncing the judgment, are similar to those in other cases of appeal.

Costs. The question of costs on these appeals will be considered generally in Chap. XIII. It may be sufficient to mention here, that the allowing any expenses of prosecuting an appeal against an order of removal, stands on the necessity of investigating settlement questions, which was introduced by 13 & 14 C. II. c. 12 (ante, Chap. XI. sect. 1) (r).

Removing Paupers back after Order Quashed on Appeal.]—After the determination of an appeal against an order of removal, by quashing the order, if the paupers are unable or unwilling to return of themselves to the removing parish, it seems that the place where they are cannot be lawfully rid of them without another order of the justices of that place, setting forth the matter specially; for to make such order is but an execution of the order of sessions, which could not otherwise be carried into effect, because it is out of the jurisdiction of sessions to make an order of removal (s).

(p) R. v.

Dobbyn, Salk. 473.

(q) S. C. See R. v. Chilverscoton; 8 T. R. 178; R. v. Moor Critchell, 2 East, 66.

(r) R. v. Essex (Justices), 4 T. R.

594.

(s) Honiton v. South Beverton, Comb. 401. See Downhead v. Broad Chalk, Salk. 481.

CHAPTER XII.

OF CERTIFICATES AND CONVICTIONS OF JUSTICES AND APPEALS AGAINST THEM; WITH PRECEDENTs of orderS OF JUSTICES AND CONVICTIONS IN PARTICULAR CASES.

SECTIONS.

I.-Certificates of Justices to Quarter Sessions in order to Diverting or Stopping Highways under 5 & 6 W. IV. c. 50, and Appeals against them, p. 861. II.-Precedents of Orders of Justices in Petty Sessions respecting Apprentices, and Goods Fraudulently Removed, p. 868.

III.-Of Convictions by Justices in General, and Appeals against them, p. 871. IV.-Precedents of Convictions in Particular Cases, p. 912.

SECTION I.

CERTIFICATES OF TWO JUSTICES FOR DIVERTING OR STOPPING HIGHWAYS UNDER 5 & 6 W. IV. c. 50, AND APPEALS AGAINST

THEM.

THE subject of stopping and diverting highways, with the right of appeal against orders of justices for so doing, was regulated by 13 G. III. c. 78, until the 55 G. III. c. 68 was substituted for it. Both acts are now repealed by 5 & 6 W. IV. c. 50, s. 1 ;—and a new system is introduced, under which two justices, on application of a vestry, or of a surveyor of a parish, if on behalf of a private party, may view the existing highways, and after giving certain notices, may certify that such view has been had; which certificate, being lodged with the clerk of the peace, together with the plan, &c. pointed out by the act, and the consent of the owner of any land taken for the new road, shall be read in open court at the quarter sessions, held next after four weeks from the day of lodging the justices' certificate, and enrolled

among the records of the quarter sessions. An appeal is given, and a jury of twelve disinterested men out of the panel returned to serve at the sessions is to determine whether the new highway is nearer, and more commodious to the public, or whether the old one is unnecessary, or the appellant is injured or aggrieved.

Application to Justices by Vestry or Private Person in Order to Stopping Highway.]-By 5 & 6 W. IV. c. 50, it is enacted (a), that when the inhabitants in vestry assembled shall deem it expedient that any highway should be stopped up, diverted, or turned, either entirely, or reserving a bridleway or footway along the whole or any part or parts thereof, the chairman of such meeting shall, by an order in writing, direct the surveyor to apply to two justices to view the same, and shall authorize him to pay all the expenses attending such view, and the stopping up, diverting, or turning such highway, either entirely or subject to such reservation as aforesaid, out of the money received by him for the purposes of this act.

Provided nevertheless, that if any other party shall be desirous of stopping up, diverting, or turning any highway as aforesaid, he shall, by a notice in writing, require the surveyor to give notice to the churchwardens to assemble the inhabitants in vestry, and to submit to them the wish of such person; and if such inhabitants shall agree to the proposal, the said surveyor shall apply to the justices as last aforesaid, for the purposes aforesaid; and in such case, the expenses aforesaid shall be paid to such surveyor by the said party, or be recoverable in the same manner as any forfeiture is recoverable under this act : and the said surveyor is hereby required to make such application as aforesaid.

View of Highway by Justices-Notices of Diverting or Stopping it-Certificate of Justices, with Plan of Highway.]-When it shall appear (b) upon such view of such two justices of the peace, made at the request of the said surveyor as aforesaid, that any public highway may be diverted and turned, either entirely, or subject as aforesaid, (viz. s. 84), so as to make the same nearer, or more commodious to the public, and the owner of the lands or grounds through which such new highway so proposed to be made shall consent thereto, by writing under his hand, or if it shall appear upon such view that any public highway is unnecessary, the said justices shall direct the surveyor to fix a notice

(a) Sect. 84. Act passed 31st Aug. (b) 5 & 6 W. IV. c. 50, s. 85.