the sessions are the judges whether examinations or grounds of appeal are sufficiently particular in the statements of facts, if they entertain doubts on either head in the particular case before them, they should go on to hear the evidence and decide the appeal, subject to a special case whereas, if they are satisfied that the objection ought to prevail, they should refuse to hear the evidence, and decide either against appellants or respondents, as it may happen, without granting a case (m). Again, if it should appear on the face of the entry on record (n) that no judgment was given, or that the justices were divided in opinion, and that no adjournment took place on either occasion (o), a mandamus would lie to compel the sessions to enter continuances for the purpose of actually deciding the appeal (p); though, had a wrong judgment been actually entered, the court above would not interfere, for want of jurisdiction in error to review it on affidavit of matter dehors the record (q). Hardship of this State of the Law.]-The operation of this state of quashing the prior order. In order to explain the general entry, respondents tendered evidence to show that the order had been quashed on account of a defect in form, under their written general consent for so doing, as for want of form. The sessions refused to hear the evidence; but a mandamus issued to compel them to do so. (m) See Rey. v. Kesteven (Justices), 3 Q. B. 819; 13 L. J. (M. C.) 78; 1 Da. & Mer. 113; 1 New Sess. C. 151. In Reg. v. West Riding (Beckington v. Elland), 1 New Sess. C. 247, sessions refused to hear evidence on an appeal, on the ground that the examinations did not state the settlement with sufficient particularity, and Q. B. refused mandamus to compel them. So where they held it necessary to state the date of an indenture of apprenticeship in the grounds of appeal, Reg. v. Cornwall (Justices), 1 New Sess. Cas. 161, n. The queen's bench will not interfere unless the sessions have not decided the question before them, Reg. v. West Riding Yorkshire (Justices), (Sprotbrough v. Attercliffe), 1 New Sess. C. 64. (n) As to which see 2 Nolan, 4 ed. 564, ante, p. 520. A ground of appeal against an order of removal was, that there was no complaint by the overseers of E. to the justices who made the order, or that if there was, it was not made in writing, nor was any copy of it sent to respondents with the examination. Appellants offered evidence in support of these averments, but the sessions refused to hear it, holding the recital of the complaint in the order sufficient to show that the justices who made it had jurisdiction. Motion for mandamus to enter continuances and hear the appeal on affidavits stating the above, rule granted. Respondents showed cause on affidavits stating that it was admitted at the sessions that a complaint had been made, but that the objection was, that it was not in writing, and that respondents were then prepared to show that complaint was in fact made by and on behalf of the overseers of E., though not in writing. Rule absolute for a return. Per Cur. If there was no refusal, that may be so returned. Reg. v. Sussex (Justices), 1 New Sess. C. 438. (0) See next page. (p) See per Lord Ellenborough, in R. v. Leicestershire (Justices), 1 M. & S. 442; Bodmin v. Warligen, 2 Bott, 6th ed. pl. 982, cited by Bayley, J., ibid. (g) 1 Ventris, 210; R. v. James, 2 M. & Sel. 321; R. v. Leicestershire (Justices), 1 M. & S. 442; R. v. Monmouthshire (Justices), 8 B. & C. 139; 2 M. & Ryl. 132, S. C.; post. the law becomes daily more grievous. Subjects of importance are more and more referred by the legislature to the decision of quarter sessions on appeal; the remedy of the subject being generally confined to the chances incident to the present constitution of that tribunal, and the common law writ of certiorari being as commonly taken away (s). Questions involving interests larger in amount than two thirds of the actions tried at assizes, and raising equally nice questions of evidence, construction of statutes, &c. are thus disposed of by a bench of magistrates, who may hinder any errors into which they fall, from being set right elsewhere. For while at nisi prius, in a cause of the smallest importance, the improper admission or rejection of evidence by the judge, or his misdirection in point of law, is the subject of a bill of exceptions, or a motion to the court above, which that learned person cannot, if he would, prevent; the sessions, by refusing a case, may conclude the party entirely, even where the certiorari is not taken away. How long this hardship, so peculiar to suitors in appeals, will be suffered to continue, remains to be seen. Altering Judgment.]-They may alter their judgments at any time during the continuance of the same session at which they are made, but not after it is ended by the departure of those magistrates who composed it (t). Equal Division.]—The chairman has the same right to vote as any other justice present, but has no casting or double vote, in case the numbers including his own vote should be equal (u); for inter pares non est potestas. In cases of equal division, the proper course is to continue the session by adjournment to some day not later than that on which the next original quarter session should be holden, and so on from session to session, if the question in doubt remains so long undecided by a majority (x). For otherwise, or if the judgment or order of adjourn (8) As to this practice, see post, tit. Certiorari. (t) St. Andrew's, Holborn, and St. Clement Danes, Salk. 494, 606; Anon. 1 Ventris, 210. See 2 M. & S. 321; 1 M. & S. 442; 8 B. & C. 139. (u) Reg. v. Fladbury, 10 Ad. & E. 706. (a) See ante, p. 74, 2 Nol. 546, 4th edit. If the neglect to adjourn be with criminal intent, or occasions a failure of justice in any respect, an information will lie against the justices who attended the sessions; but where, from its being overlooked that the numbers for quashing were equal with those for confirming the order, judgment was entered to quash it, but the error was not noticed to the court during the session, a mandamus to rehear the appeal was refused, on the ground that as the sessions had not doubted so far as to send up a case, ment has been erroneously pronounced or entered, the justices who were present cannot take up or rectify the matter after the session ended, nor can the court above assist them (y). It has been said to be the bounden duty of the clerk of the peace to enter an adjournment in the above case (z); but this doctrine has been disputed, on the ground that as the respondents in a case of removal are bound to support the order, they fail to do so, when the justices do not decide with them; so that, consequently, on an equal division, such an order must be quashed (a). but had actually given judgment, the court above could not look dehors the record, by scrutinizing the poll on which the judgment proceeded, R. v. Leicestershire (Justices), 1 M. & S. 442. See 4 T. R. 71. So where an equality of votes, which caused an adjournment, was in fact caused by the vote of a magistrate who was not entitled to vote, R. v. Usk, 2 M. & Ryl. 172; re-discussed in Reg. v. Cheltenham Paving Commissioners, 1 Q. B. 475; S. C. nont. R. v. Monmouthshire (Justices), 8 B. & C. 137. (y) Ante, p. 74. In R. v. Stansfield (Inh.), Burr. Sett. Cas. 205, appeal to the next sessions after order of removal, being the West Riding sessions held at Pontefract; the following were the entries of adjournments of sessions. The Pontefract sessions held 27th April, 17 G. II., upon an appeal by Spotland, order the said appeal [under 9 G. I. c. 7, s. 8.] to be respited to the next general quarter sessions of the peace, to be holden by adjournment at Bradford, in and for the said riding; and that the churchwardens and overseers of the poor of Stansfield aforesaid, do on notice of this order pay or cause to be paid to the churchwardens and overseers of the poor of Spotland aforesaid, the sum of four guineas, for costs of the said appeal. And the general quarter sessions of the peace of the lord the king, holden at Skipton in and for the said riding, on Tuesday, the 13th day of July, 16 G. II., before, &c. That same sessions of the peace was adjourned by the justices last named, and others their fellows as aforesaid, until Thursday, the 15th day of the said month of July in the year aforesaid, at 10 o'clock in the forenoon of the same day, to be holden at Bradford, in and for the riding aforesaid, to do further as the court there shall consider, &c. And on the said Thursday, the 15th day of July aforesaid, the same general quarter sessions of the peace was holden by the adjournment aforesaid, at Bradford aforesaid, in and for the said riding, before, &c. At which said general quarter sessions of the peace, continued and holden by the justices lastnamed at Bradford aforesaid, in and for the said riding, on the said Thursday, the 15th day of July aforesaid, in the year aforesaid, before the justices lastnamed as aforesaid, it was ordered as follows, to wit: Upon the further and full hearing of the appeal, &c. it appears to this court, that J. B. the party removed, being an inhabitant legally settled in [stating the facts], and adjudging finally the order of removal to be discharged. At the Berks Easter sessions, 1828, the majority of the justices voted for confirming the order, in which opinion the chairman concurred; but in pronouncing the judgment of the court, he, by mistake, delivered it thus :-"The order is quashed;" which was entered accordingly by the clerk of the peace. The mistake, which was in the mere pronouncing of the judgment, was not discovered till a subsequent part of the same day, when the sessions had regularly closed. Mr. Shepherd afterwards moved the court of king's bench on the affidavit of the justices themselves, for a mandamus to rehear the appeal, or to correct the judgment by the chairman's notes; but the court held, that they had no power to interfere, and the judgment remained as entered. (z) Bodmin v. Warligen, 2 Bott, 6th ed. pl. 982; R. v. Leicestershire (Justices), 1 M. & S. 442; R. v. Westmorland (Justices), 2 Sess. Cas. 193; R. v. King's Langley, 1 Ld. Raym. 481; Salk. 605, S. C. (a) R. v. Monmouthshire (Justices), General Control by the Court of Queen's Bench of the Practice of Quarter Sessions, particularly in regard to their Dismissal of Appeals.] -This subject has been touched on incidentally in previous observations on notices of appeal on the trial of respited appeals, and on the judicial power of sessions in appeals (pp. 635, 650). The reversal by mandamus of the order of proceeding at quarter sessions, if had according to the rules of practice which there prevail in hearing appeals, is a part of the jurisdiction of the court of queen's bench, which it will not be inclined to exercise, unless it be apparent that gross injustice will follow the refusal of that remedy (b). Accordingly that court will not presume that sessions were wrong in refusing to try and enter an appeal where, for all that appears, the application might not have been made in time according to their practice (c), nor will a mandamus be granted to sessions to re-hear an appeal, on the ground that their practice was inconvenient in a given particular, viz. in obliging the appellant against a poor-rate to begin by impugning it, instead of calling on the respondents to show a probable ground for the amount, at which they had charged him in it (d). So they may refuse to respite the trial of an appeal for the absence of a material witness, where full notice has been given, and both parties attend to try, unless on payment of costs of the day, according to their usual practice (e). Again, where, by the practice of a sessions, eight days' notice of appeal against an order of removal was required at the first session, but fourteen days' notice of an adjourned appeal, and an appeal was dismissed for want of sufficient notice for the second session, the practice was upheld by the court above (f). But if the sessions, in refusing to hear an appeal, depart from their usual rule of practice, the court above will interfere (g). So 4 B. & C. 844. However the court gave no opinion on this point, and in all probability would not have disturbed the law as generally understood and acted on. (b) Per Lord Ellenborough, in R. v. Suffolk (Justices), 6 M. & S. 58. See R. v. Essex (Justices), 2 Ch. R. 385; R. v. Bucks (Justices), 6 D. & R. 142. "This court will not be disposed to control the discretion of the justices when it has been fairly exercised; but it is desirable that courts of quarter sessions should not vary their rules from time to time, and should rather lean to hearing appeals than to dismissing them on technical grounds." Per Lord Denman, C.J., 5 B. & Adol. 992, R. v. Norfolk (Jus tices). (c) Reg. v. Warwickshire (Justices), 14 L. J. (M. C.) 39. (d) R. v. Suffolk (Justices), 6 M. & S. 57. And R. v. Topham, 12 East, 546, which seems contra, proceeded on special circumstances. See R. v. Newbury (Inh.), 4 T. R. 475. (ƒ) R. v. Monmouthshire (Justices), 3 D. P. C. 306. (g) R. v. Wilts (Justices), 8 B. & C. 380. Appeal against a poor's rate could not be properly heard at the sessions when it was entered, no notice having been given. It was adjourned, however, on another ground. The sessions, con where they quash an order of removal, or even a conviction, for matter of form only, subject to the opinion of the court above on the validity of the objection, and it appears to that court, when the conviction is returned on certiorari, that it is sufficient on the face of it, they will quash the order of sessions and send back the case to be heard on the merits (h). Again, where a court of quarter sessions dismissed an appeal against an order of removal for non-compliance with their practice, which, by requiring a notice to the respondents of the entry and respite of a respited appeal within one month after such entry and respite, was contrary to 9 G. I. c. 7, s. 8, which requires only a reasonable notice of appeal, the court granted a mandamus, and directed the sessions, if they found that the notice was not reasonable, to adjourn the hearing of the appeal to the next sessions, and to determine it finally there (i). Where an appellant gave fourteen days' notice of appeal, calculating one day exclusive of that of giving the notice, and the other day inclusive of the first day of the sessions, the appeal was dismissed for want of compliance with a rule of the sessions, that such a notice should be "exclusive of the day of the notice, and of the day of holding the sessions at which the appeal was to be tried," a mandamus issued to compel the hearing of the appeal (k). This decision was followed up by another (1) on 55 G. III. c. 68, s. 3, which required "ten days' notice" of appeal to the sessions against an order for stopping up highways. The sessions made a rule in cases of appeal not otherwise directed by law, that ten days' notice should be given exclusive of the day of notice, and of the first day of the sessions, and dismissed an appeal on the above statute for non-compliance with it. But a mandamus issued to hear the appeal, the court saying that it was not competent to the sessions to impose a rule of practice contrary to the act, which meant ten days' notice, one inclusive and the other exclusive, so that either the rule of sessions practice did not apply, or, if it was intended to do so, the court would exercise its discretionary power of controlling it. A like decision took place where the sessions by their practice made service of a notice requisite to the hearing of an appeal, though the act which gave it was silent on the subject (m). trary to their usual practice, refused to (i) R. v. Norfolk (Justices), 5 B. & Adol. 990. See R. v. Kent (Justices,) 8 B. & C. 639, and id. 640, 641, notes. (k) R. v. Lancashire (Justices), 7 B. & Cr. 691. Explained by Parke, J., 5 B. & Adol. 671, 672. (1) R. v. West Riding, Yorkshire (Justices), in re Bower, 4 B. & Ad. 685, relied on per Cur. in R. v. Goodenough, 2 Ad. & E. 469. (m) See R. v. Staffordshire (Justices), 4 Ad. & E. 842, when Q. B. will interfere, see next page. |