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CHAP. XXXVIII.

Of the Judgment.

SECT. I.

Of the Manner of giving Judgment, and what Judgment

the Sessions have Authority to give.

ment.

After the whole case has been discussed, the court Manner of are to pronounce judgment. The justices by whom the giving judgorder is made (1), and also those who are rated or rateable Justices infor that parish or place, whose interests may be affected terested canby the judgment, have no right to vote..(2)

not vote.

(1) Case of Foxham Tithing, 2 Salk. 607. Holt. 517. post, 506. (4). Rex v. Earl of Ashburnham, ante, 462. (4). But see Rex v. Sowton, Burr. S.C. 125.

(2) Rex v. Yarpole, 4 Term Rep. 71. 2 Bott, 708. Pl. 777. Where upon an appeal against an order of removal from Leominster to Yarpole, fifteen magistrates were present, eight (of whom three were rated at Leominster) voted for confirming the order, and seven for quashing it. The order was confirmed, subject to the opinion of K. B., whether these three justices had a right to vote. The counsel for the order admitted, that it could not be supported, and the court quashed it. It is also upon record, that Lord Raymond, who lived in the parish of Abbots Langley, went off the bench, (i.e. in the court of King's Bench,) when an order concerning that parish came before the court. Practice cannot overturn so fundamental a rule of justice, as that a party inte rested cannot be a judge. Per Cur. Great Charte and Kennington, 2 Str. 1173. Burr. S.C. 194. The 16 Geo. II. c. 18. which enables justices, rated or chargeable in any parish, to make orders in matters concerning such parish, provides, “ that it shall not authorize or empower any such justice to act in the determination of any appeal to the quarter sessions, relating to any order, matter, or thing relating to such parish where they are so chargeable." In a writ of assize, brought in the court of King's Bench, to try the right to the office of chief clerk of the King's Bench against Mr. Rowland Holt, who was in possession VOL. II.

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voices, conse

Equality of

If the magistrates, who have a right to join in the court's quence of, determination, should be equally divided in opinion, no

judgment can be given ; for all judges of the same court are of equal authority; and there is no such thing as a casting vote. Unless something farther is done, the direct result must be, to frustrate the intention of the legislature, in giving an appeal to the sessions. For the subject

of appeal, if a rate, would continue unaltered, if an order Adjournment. of removal would remain in force. To avoid such mis

chief, the justices must adjourn the appeal from session to sessi on, if necessary, until a majority shall be of opinion either on one side or the other. (1)

Misco mted.

If the sessions should give no judgment (2), or if it should appear on the face of the record that the justices were equally divided (3), the court of king's bench would grant a 1 nandamus to compel the sessions to sustain their jurisdictio n by entering continuances for the purposes of

deciding the appeal. But where a judgment was actually entered, alt:hough founded upon miscalculating a majority where the numbers were equal, the court refused upon affidavits stating the facts, to grant a mandamus directing the justices to rehear the appeal, for the error should have been pointed out and rectified during the sessions. (4)

under an appointment of his brother, Lord C. J. Holt. The chief justice was not on the bench during the trial, but sat on a chair near his brother's counsel uncovered. Bridgman v. Holt, Show. Par. Cas. 111. But see the exception as to borough justices when there are four or more. Rex v. Justices of Essex, 5 M. & S. 513. ante, 491. (2).

(1) This seems to be their bounden duty. For otherwise, the court will grant a mandamus to compel them to enter continuances, and hear the appeal at a subsequent sessions. See Rex v. Justices of Leicester-shire, 1 M. & S. 442. Further, if they neglect to adjourn it with a criminal intention, or if the consequence is the failure of justice in any respect, the court would grant an information against the justices who attended the sessions. Rex v. Justices of Westmorland, 2 Sess. Cas. 352. See Bodmin v. Warlingen, ante, 536. (2), that it is the duty of the clerk of the peace to do so; and ante, 539. (2).

(2) Per Lord Ellenborough C.J., Rex v. Justices of Leicestershire, supra.

(3) Per Bayley J., ibid. citing Bodmen v. Warlingen, ut supra.
(4) Rex v. Justices of Leicestershire, ut supra.

The judgment must be the act of the court, and the Judgment opinion of the magistrates who constitute it. They can- must be the not refer it to others to decide for them, unless by the court. parties' consent. (1)

The quarter sessions, with the consent of parties, re. But may refer ferred the consideration of an appeal against a poor's rate

by consent. to three justices out of sessions, or any two of them, and afterwards adopted the opinion of these gentlemen, and made an order accordingly, without exercising their own judgment. Lord Mansfield — “If they did this of their own accord, without the consent of parties, it cannot be supported; for they are not warranted to delegate their authority : but if they acted with the consent of the parties, I think they have done very right; and we never suffer the party who consented to the reference, by coming here, to set it aside. And I think it sufficient, if the attornies. Consent of consented, and attended the reference.” (2)

agents suffi

eient.

The authority of the sessions arises from the appeal. 1, Jurisdiction They cannot make an original order of removal (3), nor over orders of confirm one without appeal (4). And their power is con- removal, arises

(1) See ante, 444. (4). Per Parker C.J., Rex v. Townshend, ante, 468. This of course does not refer to cases stated for the opinion of the court of King's Bench. But when the subject matter is a public trust reposed in the justices, and no individuals are parties to the order, it seems that the magistrates may refer it to a committee of their own hody, and afterwards adopt their report. Thus, where the justices at: sessions appointed a committee of magistrates, either for repairing an old, or for building a new bridge, &c. Per Lord Kenyon C.J.,“ It appears, that the justices were warranted in what they did, with regard to the appointing of the committee; it was proper that the information should be acquired out of the sessions; and the act of the committee was afterwards confirmed by the sessions," Rex v. Justices of Glamorganshire, 5 Term Rep. 279.

(2) Rex v. Justices of Northampton, Cald. 30. See also Rex v. Natland, Burr. S.C. 793.

(3) Rex v. Bond, 2 Show. 503. Anon., Salk. 479.

(4) Rex v. Leverington, Burr. S.C. 279. 2 Bott, 706. Pl. 775, Godalmin v. St. Michael's, ib. n.(a). Road v. North-Bradley, 2 Str. 1168. i Sess. Cas. 280.

from the ap

fined to quashing or affirming the order of the two justices. peal.

They cannot, therefore, make an order to remove the

pauper to a third parish no wise concerned in the order of Cannot send appeal (1); or even to send him back to the parish from pauper to the removing pa

whence he was removed. (2) rish.

(1) Rex v. Amner, 2 Salk. 475.; and see Rex v. Oswell, 2 Salk. 472. Haine's case, Comb. 286.

(2) Reg. v. Milverton, 7 Mod. 10. Where an order of sessions, quashing an order of removal, and directing the party to be sent to the parish from whence he was thereby removed, was quashed in B.R. as to the direction to send back the pauper, and confirmed as to the remainder. See also Honiton v. South Beverton, ante, 246. But, where “ two justices of peace, &c. reciting, that upon hearing the parishioners of Honiton, Axminster, and Colliton, concerning the last settlement of one Hurley, (then residing in Honiton,) it appeared to them that the said Hurley was last legally settled at Axminster, therefore they ordered him to be removed thither; from which order Axminster appealed to the quarter sessions, where the order was repealed: and the sessions further ordered, that the said Hurley should be removed to Colliton, as being legally settled there; but the order did not recite that Colliton was heard upon the appeal. And now it was moved to quash the last part of this order of sessions; first, because it was an original order as to Colliton, and so, they are deprived of an appeal, which is given by the statute; and the sessions ought only to have vacated the first order, and not to have made any order upon Colliton; for, by this means, Colliton is charged without any remedy, notwithstanding they could make it appear, that Hurley had a later settlement in any other parish whatsoever, for that this order of sessions is positive upon them. Sed non allocatur ; because it appears that Colliton was a party to the first order, made by the two justices, and so by consequence to the appeal ; wherefore the sessions might well settle him upon them, because, by the appeal, Colliton was before the sessions; secus, if Colliton had not been a party to the original order, but mere strangers; for then the sessions could not charge them, as not being before the court.” Rex v. Colliton, Carth. 221. Also where two jus tices made an order of removal, from which order the pauper appealed; and the sessions, without expressly vacating the order of two justices, made an order to return the pauper to the parish from which he was removed. It was objected, that the authority of the sessions extends only to vacate or affirm, and therefore, that this was a new and original order, which they had no power to make. And Holt C.J. was of that opinion, but two judges against him; for that the sessions' order does vacate the order of two justices by implication, and that is sufficient in

The sessions being in contemplation of law accounted but May alter their as one day, the justices may alter their judgment at any time judgment dur

ing the seswhile it continues. They may, therefore, make an order sions. to vacate a former one made during the same sessions. (1) Thus, after quashing an order of removal, they may supersede their first order, and make a new one to confirm the original order. (2)

But, in such a case, they ought to set the first wholly But not at one aside, and enter up the last as the only order. For the subsequent,

unless appeal effect of the court's setting aside the first is, that it ceases continued to to be an order, and consequently ought not to be re- it. turned to the court of king's bench as an order vacated by another order, but should be annulled and made nothing. (3) The justice's power expires with the sessions, unless continued to the next by adjournment. (4) Where an order of removal, therefore, was quashed at one sessions, and the ensuing sessions made an order of review, and quashed the order of the former sessions, because made by surprise; the court of king's bench were of opinion, that the order of review must be quashed, for the justices have no power after the first sessions. (5)

this case. And upon their opinion the order was confirmed. Rex v. Harfield, Carth. 222.

(1) St. Andrew's, Holborn, v. St. Clement Danes, 2 Salk. 495.

(2) Battersea v. Westham, 5 Mod. 396. St. Andrew's, Holborn, v. St. Clement Danes, 2 Salk. 494. ib. 606. 6 Mod. 287. S.C. Rex v. Justices of Leicestershire, 1 M. & S. 442. Also, in a recent case, when a certain number of magistrates, in the early part of the day, appointed a person surgeon of the county gaol: and another set, in a subsequent part of the same day, appointed another person. The court of King's Bench held the latter appointment good, and the former vacated. Rex v. Justices of Glamorganshire. This, however, is a very dangerous power to exercise, as the same magistrates seldom continue to sit during the whole of the sessions; and if the second order is made without good reason to warrant it, the court would, in all probability, grant an information against the magistrates who concurred in making it.

(3) Per Holt C.J., St. Andrew's, Holborn, v. St. Clement Danes, ante (1).

(4) See ante, 535.
(5) Rex v. Cuckfield, 2 Salk. 477. Pridgeon's case, Cro. Car. 341.

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