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Again, where, on appeal against an order of removal, the sessions, without going into the appeal, quashed the order, on the ground that the examination sent to the appellants did not state the pauper to be chargeable at the time of making the order, but afterwards granted a case to the respondents on the point of construction of the act respecting it, but the case was not brought up, the court refused to hear the point discussed on a rule obtained by the respondents for a mandamus to enter continuances and hear the appeal (t), and discharged the rule. For though the respondents might have forborne to take a case, and might then have applied for a mandamus, they could not have both remedies at once (u). So a rule for a like mandamus was refused where the sessions had dismissed an appeal unheard, confirming the order of removal, because the notice of appeal had been served on one only of several parish officers, but had granted a case, at the instance of the appellants, which was not brought up (x). Where an appeal has been dismissed for insufficiency of its grounds as stated, without hearing evidence, a motion for a mandamus to enter continuances and hear an appeal is cheaper than a case, but if the rule for the mandamus is discharged, it is with costs (y).

When the Finding of the Sessions on Facts is conclusive, and when not.]-Facts are for the judgment of the sessions (z). Where it was made a question of fact at a sessions whether there was a hiring and service for a year in the appellant parish, and the sessions confirmed the order of removal, thus virtually holding the affirmative, but granted a case for the opinion of the court whether a settlement was thus gained, which case stated the evidence as to that fact; the court said that the sessions being bound to hear the evidence, the case amounted to a finding by them of a fact, the decision of which belonged to them, viz. that there was a hiring and service for a year in the parish to which the removal had taken place, and held that such finding ought not to be disturbed, if there were any premises to warrant it (a). But where an order

for a mandamus, Reg. v. West Riding Yorkshire (Justices), in re Chorlton Township, 11 L. J. (M. C.) 34.

(t) R. v. Suffolk (Justices), 6 Ad. & E. 109; 1 N. & P. 306, S. C. The respondent's only remedy seems to be by a new removal and second appeal. (u) Per Lord Denman, ibid.

(x) R. v. Northamptonshire (Justices), in Morborn v. Warmington, 6 Ad. & E. 111, n. Rule for mandamus to enter, &c. and to hear the appeal obtained by

appellants, was discharged.

(y) Reg. v. Leeds (Recorder), 2 Q. B. 547.

(z) 2 Ad. & E. 393.

(a) R. v. St. Andrew the Great, Cambridge, 8 B. & C. 664; S. P. in R. v. Rosliston, id. 668; R. v. Edwinstowe, id. 671; R. v. St. Martin's in Leicester, id. 674; R. v. Great Wishford, 4 Ad. & E. 216; R. v. Snape, 1 N. & P. 429. However, in R. v. Ardington, 1 Ad. & E. 260, (observed on arguendo, 3 Ad.

of removal was confirmed, and the case set out the evidence upon which a yearly hiring in the respondent parish was sought to be supported, without any finding on the fact of the yearly hiring, the case was sent back to be re-stated (b).

It seems that the court above will not be concluded by the finding of sessions as stated in a special case, where they see that that finding is perfectly contradictory to the facts proved and set out in the case as constituting the ground of the decision; e. g. where sessions find the fact of a coming to settle, and mistakenly refer it to the court with the facts on which their finding was grounded as a matter of law (c). In the last case, many instances are collected where the court above has interfered by examining and adjudging on matters of fact, if brought before it for their opinion by special cases (d), though the sessions had themselves decided on the facts subject to such opinion. So where the sessions have decided on the fact against or without evidence (e).

Sending back a Special Case to be Re-stated (ƒ), and Rehearing of Appeal thereon.]—Where the special case is manifestly insufficient as stated, e. g. if it contains evidence only, without finding facts (g), or omits circumstances material to the decision of the particular case, in order to raise a general question which would not otherwise arise (h), or without finding fraud, states facts which nearly demonstrate that the decision of the sessions proceeded on the ground of fraud (i), the court may, either by consent (k), or of their own authority, send it back to the sessions to be re-stated (7). Upon this taking place, it is the duty of those who contested the original

& E. 162, and per Cur. 2 Q. B. 311,) the court disregarded and reversed the decision of the sessions on the evidence, both being set out in the case; and held that they were wrong in implying a hiring in a third parish. See ante, p. 939. (b) R. v. Road (Inh.), 1 B. & Adol. 362.

(c) R. v. Woolpit, 4 Ad. & E. 205; Coleridge, J., dissentiente, but see by same learned judge, 4 Ad. & E. 224, and id. 929.

(d) Per Coleridge, J., 4 Ad. & E. 213; 3 Ad. & E. 162; 1 Ad. & E. 260; R. v. Field, 5 T. R. 587; as stated, 8 Ad. & E. 383, Reg. v. Lynn; and R. v. Snape, 6 Ad. & E. 278.

(e) Per Coleridge, J., R. v. Great Wishford, 4 Ad. & E. 224, and post, Chap. IX. sect. 4; but quære, see ante, p. 651.

(f) See form of rule for sending case to be re-stated, id. 687, and 1 B. & Ald. 645, R. v. Suffolk (Justices).

(g) R. v. Road (Inh.), 1 B. & Adol. 362. Except where the conclusion ought to be the same as that arrived at by the sessions, R. v. Shebbeare, 1 East, 73. See last page.

(h) R. v. Francis Hill, Cowp. 613. (i) R. v. Llanfihangel Abercowin, 4 N. & M. 355.

(k) R. v. Nether Heyford, Burr. S. C. 479.

(1) R. v. Winwick, 8 T. R. 455; R. v. Road, 1 B. & Adol. 362. So even where no case was reserved, but a fact appeared doubtful on the original order of removal, R. v. Margam, 1 T. R. 775; but not so if they admit improper evidence, R. v. Rawden, 2 Ad. & E. 256; 4 Nev. & Man. 97; ante.

order to give notice to those who support it, not merely of the order of queen's bench sending the case back for restatement, but also of any proceeding to have the case reheard at sessions. For where an order had been so quashed, and the case stated and sent back, and the respondents, without giving notice of trial, attended the sessions, and in appellant's absence obtained a confirmation of the order, the order so confirmed was quashed in queen's bench on certiorari (m). The sessions must proceed de novo, as on a new trial, to re-hear the whole case (n); and, except by consent, can take no cognizance of any evidence previously given (o), unless the case is sent back only to ascertain some particular fact to which the proof may then be confined (p), or to explain some ambiguity of expression or omission of an inference, which can be supplied by the justices without hearing witnesses (q). But fresh evidence may in every case be given (r), and a new order made.

However, no case will be sent back to be re-stated on a mere formal objection, or for containing an immaterial or irrelevant fact, if enough appears upon it to enable the court above to give judgment on the merits of the question submitted to them; particularly when the only possible result of sending back the case would be to produce delay and expense (s); or if the facts stated warrant the judgment, though the court below has drawn an inference which they do not warrant (t), or has rejected evidence improperly, which, if admitted, ought not to vary their conclusion (u); nor on an affidavit of a witness that the clerk of the peace did not state his evidence truly (v), or on affidavit that the case does not agree with the facts proved, if it purports to be signed by the chairman, though he does not recollect signing it (w); or that it does not state what the conversations were which took place between parties to a written agreement at the time of signing it, and which it alleges that the respondents proposed to give in evidence, if it distinctly

(m) Reg. v. Barnes and another, 3 Q. B. 437.

(n) R. v. Bromley, 6 T. R. 330; R. v. Bloxham, 1 Ad. & E. 386; 3 Nev. & M. 385; 2 Nolan, 610.

(0) R. v. Page, 2 Bott, by Const. 5th ed. 743.

(p) R. v. Hitcham, Burr. S. C. 489. (q) R. v. Bray, Burr. S. C. 684. See next note.

(r) R. v. Hitcham, Burr. S. C. 489; and R. v. Bloxham, 1 Ad. & E. 386; 3 N. & M. 385, S. C. semb. superseding R. v. Bray, Burr. S. C. 682, quoad hoc

only. See R. v. Suffolk (Justices), 1 B. & Ald. 645.

(s) R. v. Minchinhampton, 3 Burr. 1310, on a rate; R. v. Middlezoy, 2 T. R. 41, on a settlement. See 2 Nolan, 4th ed. 607.

(t) R. v. Rickinghall Superior, 1 N. & M. 47.

(u) R. v. Nutley, Burr. S. C. 701.

(v) R. v. Burgh-in-the-Marsh, Burr. S. C. 145; 2 Bott, by Const, 5th ed. 747; Thackham v. Trindon, 2 Salk. 489.

(w) R. v. Matlock, 5 B. & Adol. 883.

states, as a question for the opinion of the court, whether the agreement was a contract of hiring (w).

Where a case respects a poor-rate, the order of sessions will not be remitted there, except for a defect on the face of the case (x); and where" iron" as well as coal mines were rated, yet the rate was confirmed generally at sessions, their order was quashed as wrong at all events, the court refusing to send it back (y), though the sessions only had that power to amend the rate (z). So where a rate was quashed at sessions, and it appeared in the king's bench that a large tract of land was not assessed therein, the order of sessions was confirmed (a); but where the sessions confirmed a rate, and the court above held certain burgesses to be improperly omitted, the order of sessions was sent back to have the rate amended by inserting them (b). Where necessary, special directions are inserted in the rule by which the order is sent down, commanding the sessions to inquire into and state particular facts (c). A new case may, if defective, be again remitted to sessions for further inquiry (d). Other modes of dealing with an imperfectly stated case are, quashing either or both orders by consent of counsel on terms (e); inserting a fact in the case under a rule obtained by consent to amend the order (ƒ); and admitting the fact by counsel during argument (g).

A re-hearing on the merits was allowed where the respondents had stood on a point of form at the sessions, and got the order of removal quashed there, the opinion of the court being afterwards adverse to them on the point of form (h).

Mr. Nolan observes, that no case seems ever to have been remitted to sessions to find the fact of fraud, however pregnant such a conclusion might be on the evidence stated (i).

(w) R. v. Billinghay (Inh.), 1 N. & P. 149.

ed.

(x) R. v. Coode, 2 Nolan, 608, 4th

(y) R. v. Cunningham et al. 5 East, 478, Q. B.

(z) The Q. B. could not amend it, R. v. Milton, 3 B. & A. 120.

(a) R. v. Aberavon, 5 East, 453. (b) R. v. Watson, East, 480. See R. v. Topham, 12 East, 546.

(c) R. v. Clifton-on-Dunsmore, Burr. S. C. 697; R. v. Margam, 1 T. R. 775 (orders of removal); R. v. Hogg, Cald. 266 (poor's rate.)

(d) R. v. Bray, Burr. Sett. Cas. 682; R. V. Clifton-on-Dunsmore,

supra.

(e) 2 Nol. 4th ed. 606; R. v. Himley, Burr. S. C. 115.

(f) R. v. Great Chart, Burr. S. C. 194.

(g) See R. v. Llandverras, Burr. S. C. 573; R. v. Warblington, 1 T. R. 241. The rule for quashing or confirming the orders must state the facts admitted, and that they were admitted by counsel. See form of rule, R. v. Llandverras.

(h) Reg. v. Arlecdon, 11 Ad. & E. 87; 3 P. & D. 95, semb. overruling R. v. Honiton, Burr. S. C. 680; 2 Nolan, 617, 4th ed.

(i) 2 Nol. 4th ed. 561, 564.

Costs after Special Case disposed of.]-By the practice of the crown office, if a rate singly appealed against, or one of several rates appealed against is confirmed, the costs fall on the appellants; but if quashed or reduced, no costs are allowed on either side.

The quarter sessions confirmed an order of removal subject to a special case. That case was sent up to the court of queen's bench, on a rule obtained for quashing the order of sessions. That rule was discharged, and the order of sessions confirmed. The party who brought up the order pays the costs; for the court will not discharge the rule without giving judgment on the confirmation of the order (k).

Re-hearing of Appeal against a conviction, where quashed for want of form.]-When a conviction has been quashed on appeal for want of form, subject to the opinion of the court above on the validity of the objection, and it appears to that court that there is no defect in form, the case will sometimes be sent back to sessions to be re-heard on the merits (). But if a conviction is quashed at the sessions on a ground independent of the merits, and is set up again by the court above on certiorari, the appellant cannot afterwards go to the sessions to have the appeal again discussed on the merits, by entering continuances from the first appeal (m).

SECTION III.

OF THE REMOVAL OF PROCEEDINGS FROM QUARTER SESSIONS BY CERTIORARI AND WRIT OF ERROR.

We will now notice the compulsory process of certiorari, so far as it enables parties under certain defined restrictions to remove judicial acts in which a writ of error does not lie, e. g. convictions and orders of justices in or out of sessions (n), as well as indictments, presentments, &c. to the court of queen's bench at Westminster. Judgments of sessions on indictments may also be reversed in that court, by writ of error (o).

(k) Reg. v. Latchford (Inh.), 14 L. J. (M. C.) 20.

(1) R. v. Ridgway (Inh.), 5 B. & Ald. 527; 1 D. & R. 132: R. v. Frieston (Inh.), 5 B. & Adol. 597, see 4 B. & Ald. 86.

(m) R. v. Allen, 15 East, 333. See 3 T. R. 519, and 1 Ad. & E. 606. (n) See 1 Burn's J. 29th ed. 553. (0) See instance, Reg. v. Silversides, 3 Q. B. 406.

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