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After these preliminary steps, the respondent's counsel als, respondent begin to open his case (1), and establish the order of rebegins.
So in appeals
In an appeal against a poor's rate, if the ground of comagainst rates, plaint be that the appellant has no rateable property in the appeal that parish, the counsel for the respondent begins in like manappellant has
ner to establish possession of some property in the appelno rateable property.
lant, for which he is liable to be rated, before the other side is called upon to refute it. (3) The reason assigned for this rule by the judges is, that those who have done the act ought to show the propriety of it by evidence.
Practice as to the hearing of
But as the appellant, in all other instances, makes certain appeals against substantive objections to the rate by his notice, it is the
practice, in many counties (4), to call upon him to make them good, before the court obliges the respondents to defend their rate. Where the practice is so, the appellant's leading counsel opens the case by stating the causes of complaint; but he is obliged to confine himself to such as are sufficiently set forth in the notice, unless he obtains the consent of the other side to go beyond them.
Respondent proves the rate.
The respondents are then called upon to put in the rate, and prove the allowance and publication, where they are not admitted, either expressly, or virtually, by their not being included in the notice as grounds of appeal.
(1) Per Lord Kenyon, C.J. Rex .. Newbury, 4 Term Rep. 475. i Bott, 288. Pl. 279.
(2) But different sessions vary in this part of their practice. Thus, at the Surrey sessions, if the respondent prove to the court's satisfaction, that the pauper cannot be found, the appellant begins, as he does likewise at the Gloucester sessions, if the order appear on the face of it to have been made on the oath of the party removed.
(3) Rex v. Newbury, supra, (1). See also Rex v. Topham, 12 East, 546.
(4) As Surry, Kent, and Yorkshire, &c. Rex v. Newbury, 4 Term Rep. 475.
must be read.
If the parish officers do not attend, or refuse to produce Ifrate not prothe rate, the court may proceed in the hearing, provided duced, copy notice has been given to produce it; and an attested copy of the rate may be then read in evidence (1), or the contents proved by parol testimony. (2)
The service of notice to produce a rate is good after the Service of nosessions are commenced. (3) Every inhabitant is entitled, sessions comunder 17 Geo. II. c. 3. s. 2. and 3., to inspect every rate, at mence. Inha, all reasonable times, paying 1s. for the same, and to have to copies of upon demand forthwith copies of the same, or any part rates, &c. thereof, paying at the rate of 6d. for every twenty-four names, under a penalty of 201., to be forfeited by the churchwarden or overseer, not permitting such inspection, or refusing or neglecting to give copies.
The evidence for the appellant is next produced; and after the written testimony has been read by the clerk of the peace, and the witnesses (1) sworn, examined, and cross examined, the second counsel for the appellant sums Second counup, and applies the matters proved to the question of law sel sums up. or fact which the court are to decide.
(1) See Rex v. St. Helen's in Abingdon, i Bott, 266. Pl. 263. where this was done, and no objection taken S.C. By the name of Rex v. Justices of Berkshire, 3 Glenb. on Elect. 132. i Const, 274. Pl. 288.
(2) Rex v. Webb, Trin. 41 Geo. III. where the point was considered as too clear to admit of argument.
(3) Decided, Rex v. St. Helens, supra, (1).
(4) For the general rules respecting written evidence, see ante, Vol.I. 592. et seq. Ib.629. et seq. As to the competency of witnesses, ante, Vol. I. 482. et seq. and Rex v. Kirdford, 2 East, 359. Subpænas, to compel the attendance of witnesses, when living within the county for which the sessions are held, are issued by the clerk of the peace, and also from the Crown Office. Bnt where the witnesses live in a different county, the Crown Office alone can issue the subpæna. And if the witness disobeys it, quære if the court of King's Bench will not punish him by attachment. See Rex v. Ring, 8 Term Rep. 585. an attachment was granted by the court of King's Bench, for not obeying a subpæna from the Crown Office to give evidence on a criminal prosecution at the great sessions for Carmarthen. Rex v. Booth, Hil. 45 Geo.III.
The leading counsel for the respondent then states his case in answer to that of the appellant; brings forward his evidence in the same manner; which is likewise summed up by the counsel next him in succession; and finally, the leading counsel for the appellant replies upon the whole
Form of hear. The proceeding is similar in appeals against orders of ing appeals
removal, excepting, that as the respondent begins, so he against removals.
closes the case where evidence is called on both sides. But in all sorts of appeals, if the party who states his case last calls no witnesses, his junior counsel has no right to address the court: and he who leads for the adversary is debarred of a reply, but he may observe upon such new
cases as are cited by the other side. Evidence con- In an appeal, against an order of removal, the inquiries fined to matter, should not extend on either side beyond the time when it the date of the was made; for the justices should not quash a good order order.
upon matter which happens ex pest facto. (1) Arguing ob. Objections may be taken by either side, previous to the jections. hearing, or while it is going on; such are objections to the
jurisdiction, service of notice, the competency of witnesses, and other matters. Where this occurs, all the counsel (2) on the side which takes the objection may be heard in support of it; those on the other side are next heard against it, and then the leading counsel for the objection replies; after which the opinion of the court is taken upon the question. (3)
(1) Per Page J.,' Rex v. Widworthy, Burr. S.C. 109. Per Lord Ellenborough, in delivering the court's judgment. Rex o. Horsley 8 East, 410.
(2) This seems to be the strict course of proceeding, where the court has not laid down some rule as to the number it will hear. But in practice an objection is usually sustained and opposed by one counsel upon each side, unless where the point is of great importance.
(3) It is not always necessary to hear the argument through. If the court agree to the objection, they may call upon the counsel who are of the other side to repel it by argument without hearing those who take it. If clearly against it, they will decide without hearing counsel in that behalf.
If any difference arises respecting the admissibility of No bill of exevidence, it is decided in the same manner by the court.
against jusBut no bill of exceptions lies against their opinion. (1) tice's opinion. For, in the common case of a bill of exceptions tendered to the judges, the jury alone are the proper persons who would be to decide whether they believe the evidence or not; the judges have nothing to do with the belief of the evidence; they are not to determine on its credibility, but upon the consequence of law arising from it. But the justices at sessions are judges of the fact as well as law; they are the jury as well as judges; it is in their breast only whether to believe or disbelieve the evidence; and who is to take upon himself to say what portion of evidence they do believe, and what they do not? Suppose six of the justices believe the evidence, and two of them do not believe it, are the two to conclude the six as to belief of the fact ? When the justices specially state the fact, it is the act of the whole court. (2)
The sessions are the sole judges of the effect of the evi- Sessions sole dence laid before them, and although they draw a wrong of evidence,
judges of effect conclusion from it, the court of king's bench has no unless they power to compel them to review their decision. (3)
state a case.
Even when they have refused to admit evidence under Evidence a mistaken apprehension of the practice of their own court, rejected. and of the rules of law; as where, in an appeal against an order of removal, the sessions would not allow the respondents to call witnesses to contradict the case made by the appellants: the court of king's bench refused to grant a mandamus to direct the justices to hear and decide the
For there is no instance where the court of king's bench has interfered by mandamus to direct the justices
(1) Rex v. Preston, Burr. S.C.77.
(3) Rex v. Justices of Worcestershire. M. 60 Geo.3
i Chitt. Rep.
to rehear an appeal, which they had once already heard; and though the decision may have been wrong, the superior court is not at liberty to enter into that question where no case has been sent up for its consideration. (1)
Refusal to hear case and evidence of one side,
But if it had appeared that they had heard one side, and had altogether refused to hear the other, it would be the same as if the case had not been heard at all, in which case the mandamus ought to issue. (2)
(1) Rex v. Justices of Carnarvon, 4B. & A.86, and for Rex o. Justice of Middlesex, 4B. & A. 298,
(2) Per Holroyd J., ibid,