CHAPTER XIII.

OF THE TERMINATION OF THE GENERAL QUARTER SESSIONS OF THE PEACE:-AND OF MATTERS INCIDENT TO OR ARISING OUT OF ITS PROCEEDINGS.

SECTIONS.

I. Of the Termination of the Session, p. 933.

II.-Of Reference to Judges of Assize or the Court of Queen's Bench on a Spe

cial Case, p. 934.

III.-Of Removal of Proceedings by Certiorari, p. 947.

IV.-Of Costs, p. 970.

V.-Of Outlawry, p. 985.

VI.-Of Pardon, p. 988.

VII.-Of Estreats, p. 994.

VIII.-Of Restitution, p. 998.

SECTION I.

OF THE TERMINATION OF SESSIONS.

Termination-Adjournment.]—All sessions are terminated, as of course, by the departure of the justices, the constituted authorities by which they are holden; unless they are previously prolonged by adjournment, proclaimed in the presence of at least two justices (a). But we have seen that such adjournment ought not to be made to a day beyond that fixed for the meeting of the next original session, for if it is, a judgment at such adjourned session will be reversed (b).

Altering Judgments during the Session.]-The whole session is considered in law as one day, and accordingly, all the proceedings have

(a) R. v. Mullaney, 6 C. & P. 90; ante.

(b) R. v. Grince, 19 Vin. Abr. 358.

As to the caption of indictments, orders, &c. made at adjourned session, see Index, tit. Caption.

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reference to the first day, and the justices may, during its continuance (c), as we have seen (d), annul their former order made in the same session but this is a power to be exercised with delicacy and discretion, for if enforced by a fresh accession of justices, in the spirit of party or other unbecoming manner, an information would be granted against those of them who were concerned in the transaction (e). It necessarily follows from what has been advanced, that as the power of the court expires at the conclusion of its sitting, no order there made can be reviewed, or placed in any new situation, at any subsequent session, unless kept open by adjournment of the session itself (ƒ).

Referring Questions to Superior Tribunal.]-But besides these means by which the justices may, purely of their own authority, procrastinate their decisions on all subjects, there are other modes by which any question of legal difficulty may be referred by the justices, of their own authority, to the opinion of a superior tribunal; as by reference of the whole case or a particular point in it (g), to the next judges of assize, or by stating the special circumstances of the case, for the consideration of the court of queen's bench, as to its legal effect.

Besides these modes originating with the sessions themselves for taking the opinion of a higher tribunal, the paramount writ of certiorari will, at the instance of either party, in various stages of proceedings in which it is not taken away by statute, withdraw the cognizance of them to the court of queen's bench.

SECTION II.

OF REFERENCE TO A JUDGE OF ASSIZE, OR THE COURT OF QUEEN'S BENCH ON A SPECIAL CASE.

Power and Duty of Sessions in respect of granting Special Cases.] -Though, as we have seen, the quarter sessions cannot delegate their judicial authority, they may give judgment on any appeal, e. g., for confirming or quashing the rate, order, conviction, &c., subject to a

(c) R. v. Leicestershire (Justices), 1 M. & S. 442; St. Andrew, Holborn, and St. Clement Danes, Salk. 494, 606, S. C. See also ante, p. 75; and Thornley v. Fleetwood, Stra. 383.

(d) Ante, p. 74, 620.

(e) 2 Nolan, 4th ed. 536, 546. (f) Ante, p. 74; Cockfield or Cuckfield v. Boxted (Inh.), Salk. 477.

(g) R. v. Tedford. 2 Burr. S. C. 57.

special statement of the facts for the opinion of the judge of assize (h), or of the court of queen's bench, as to the law resulting from them ; thus leaving the ultimate event to depend on the judgment of that court (i).

Subject to the question whether the certiorari necessary to remove the order, &c. is taken away in the particular instance by statute (k), the same sessions which adjudge on the appeal (1), may grant a special case at the request or without consent of the parties (m), whenever a reasonable doubt exists in the minds of a majority of the justices on the subject disputed (e. g. the sufficiency of grounds of appeal), but should refuse it where they are so satisfied that they think they ought to decide against either party (n), or believe the application for the case to be founded on obstinacy or a spirit of litigation (o); or where it would be useless to draw up the case, the certiorari being taken away (p). As to the propriety of granting or refusing a special case, Lord Hard

(h) This was the tribunal commonly resorted to in early times; the appeal was adjourned and the facts in dispute specially stated in the order of sessions, which was quashed or confirmed according to the order of the judge of assize. See 2 Nolan, 558, 4th ed.; 4 Burn, 29th ed. 1190. Or, as it seems from the judgment of Probyn, J., in R. v. Tedford, Burr. S. C. 63, the single point of law in dispute was stated; but see per Hardwicke, C. J., ibid.

This practice is disused, for which change many reasons might be assigned. The chief reason probably was, that the decision of the judge, when the time allotted to perform the more important business of the county admitted of its being obtained (which was not always the case, R. v. Tedford, Burr. S. C. 57), was not final, unless there was a manifest consent of both parties, as by their arguing the case by counsel, &c. Cuerden v. Leyland, Stra. 903. In R. v. Natland, Burr. S. C. 793, after the judge had heard counsel, and given his opinion in writing, the court said it was very improper to take up the matter again, and refused to go into the matter of quashing the order of sessions made thereon. Rule for so doing discharged.

The many important appeals in which the suitor is deprived of the common law remedy of certiorari will probably occasion the revival of this mode of obtaining the opinion of a higher tribunal.

(i) Reg. v. Stoke-on-Trent (Inh.), 13 L. J. (M. C.) 41.

(k) R. v. Allen, 15 East, 333. See 10 B. & C. 163; 1 B. & Adol. 113. As to convictions see per Le Blanc, J., R. v. Allen, 15 East, 346, and other cases, Paley, 3rd ed. 301.

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.

(7) No subsequent (original) session can grant a special case, R. v. Michaelstone Vedoes, 2 Nol. 4th ed. 500.

(m) R. v. Sussex (Justices), 2 Nol. 4th ed. 558.

(n) See per Patteson, J., 3 Q. B. 820; Reg. v. Kesteven (Justices); and R. v. Middlesex (Justices), 8 D. & R. 117, ante.

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

(p) See R. v. Middlesex (Justices), 8 D. & R. 117, ante.

wicke has said (q), “ 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 requested 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."

The court of queen's bench has not general jurisdiction as a court of error to review the judgments or orders of sessions in subject-matters over which they have jurisdiction (r), unless a defect appears on the face of them when removed by certiorari (s), or unless the sessions was improperly constituted from a majority of the justices who voted on the successful side being interested (t); nor will the court above interfere by way of granting a new trial for improper rejection or reception of evidence, no case being reserved (u). But it will act in aid of the sessions by taking cognizance of a special case sent up from thence for their opinion, and accompanying the order, conviction, &c. appealed against, when these last are removable and removed by certiorari. It is in this way only that it will overrule a judgment of the sessions in an appeal, where it appears requisite to do so (x).

The summary jurisdiction of the justices over the civil business of the sessions, places them in the situation of jurors as well as judges, calling on them as jurors to elicit the facts from the evidence, and as judges to apply and declare the law resulting from the facts. On this account, sessions are not compellable to grant a special case (y); for such a case

(q) R. v. Preston-on-the-Hill, Burr. Sett. C. 77; and see ante, p. 651, et seq.

(r) R. v. Monmouthshire (Justices), 8 B. & C. 137; S. C. nom. R. v. Uske, 2 M. & Ry. 172, cited and acted on in Reg. v. Cheshire (Justices), 8 Ad. & E. 398; 1 P. & D. 89. See 1 Ventris, 210. As to mandamus to erase an entry in a court of quarter sessions, see 5 Q. B. 1.

(8) See Reg. v. Cottingham (Inh.), 2 Ad. & E. 250; Reg. v. Read, 9 Ad. & E. 619; R. v. Leicestershire (Justices), 1 M. & S. 446; R. v. James, 2 M. & S. 321, ante, Chap. IX. sect. 4, R. v. Oulton, Burr. S. C. 64.

(t) Reg. v. Cheltenham Paving Com

missioners, 1 Q. B. 476. Order quashed on removal by certiorari, and see Comb. 285.

(u) See ante, p. 651. R. v. Frieston (Inh.), 5 B. & Ad. 597; S. P. in 3 Q. B. 819, and Reg. v. Kesteven (Inh.), overruling 2 Q. B. 325, 331, are instances to the contrary.

(x) R. v. Allen, 15 East, 233; R. v. Carnarvonshire (Justices), 4 B. & Ald. 86; Pratt ex parte, 7 Ad. & E. 423; 2 N. & P. 102, S. C.; R. v. Cumberland (Justices), 4 Ad. & E. 695; 5 N. & M. 578.

(y) R. v. Jarvin (ex parte Inh.), 9 D. P. C. 120, Patteson, J.

must always depend on particular facts which it is the exclusive province of sessions to find; so that if they refuse it, the particular state of facts which would be said to prove their determination to be against law, cannot appear to the court above to be so (z).

The only matter which the sessions can send to the court of queen's bench is their authority to judge of the law (a); from whence it follows that conclusions drawn from the assertions of the witnesses at the hearing, must be specifically stated in a case as facts found by the sessions (b), for merely stating the testimony or documents from which those facts were or might have been deduced, would leave the court above to draw the inference which the justices below ought to have done (c).

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 other, from the evidence, such as it may be; and stating the evidence only without drawing the conclusion will not suffice (d). 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 (e). 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 (ƒ). Again, on a claim of settlement

(2) R. v. Oulton, Burr. Set. C. 64, 2 Nol. 55, 4th ed., and see cases, ante, p. 653, notis.

(a) The court above will hold itself concluded by a fact found by the sessions; 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.

(b) See p. 944, R. v. St. Cuthbert, Wells, 5 B. & Ad. 939, 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. See Comberbach, 285, 286.

(c) R. v. Lyth, 5 T. R. 327; R. v. Bottesford, 4 B. & C. 84; 6 Dowl. & Ry. 99. See R. v. Ardington, post, p. 139.

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 " going;" R. v. North Bedburn, Cald. Ca. 452, on that of "Landsell Colliery."

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(d) 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.

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