Sivut kuvina

must have been quashed; for the due proportion of every other person rated was thereby affected; and as they could not be concluded by proceedings to which they were no parties, it became necessary to regulate the proportional assessment of the parish by a new rate.

But the law is altered by 41 Geo. III. c. 23. s. 6. which Power of requires, that persons appealing, because any other person

amendment by

41 Geo. III. is rated or omitted to be rated, or because any other per- c. 23. son is rated for any greater or less sum than they ought to be, or for any other cause that may require any alteration in the rate, with respect to any other person, shall give notice to the persons interested in the event of such appeal, who may appear and be heard, if they think fit. It further provides, that the majority of justices may

order the names of such persons to be inserted and rated at any sum, and that of others to be struck out, or the sum at which they are rated altered, in such manner as they shall

think right.

The true principle to regulate the amendment, or Principle of quashing of rates, so far as it can be laid down in the ab- amendment

under that act, stract, where a good deal must depend upon the peculiar circumstances of each case, seems to be; whether the amendments sought to be introduced are such as must essentially alter its proportion and character, so as rather to render it a new than an amended rate. If they cannot have this effect, the magistrates should amend; but otherwise, as they are expressly prohibited from making a new rate, they ought to quash.

Thus, if the ground of complaint is, that personal pro- Instances perty is altogether omitted (1); or, that the real estate is where rates taxed ten times more in proportion than the personal (2); ed.

may be quash or, that the rate is made upon a principle altogether erro

(1) See Rex v. Dursley, 6 Term Rep. 53., and the case of St. Leonard's, Shoreditch, Holt. 508.

(2) Ib.

neous (1); or, that a large portion of property is omitted and it does not clearly appear what persons ought to be rated for it (2): these seem cases in which the rate ought to be quashed. Because, otherwise the sessions must examine into the circumstances of every person in the parish, in order to render the rate perfect, and so make one altogether new, which they are forbidden to do by 17 Geo. II. c. 38.

Sect. III.

Of stating a Case for the Opinion of the Court of King's


Sessions not The justices are not bound to state in their judgment bound to state the reasons upon which it is founded any more than other their reasons.

courts; it must be collected from the record. (3) They

need not set forth, therefore, whether they quash an order But if they


the form or the merits (4); but if they give a reason give a bad rea- which is a bad one, the court must take notice of it, and quash.

quash their order. (5)

son, B. R. will

Cannot be compelled to state a case.

It has been shewn, that no bill of exception lies against the justices' determination (6); neither can they be compelled to state a special case for the opinion of the court of king's bench, because a case must always depend upon

(1) Rex v. Sandwich, Doug. 562. Cald. 105. S.C. But these cases were prior to 41 Geo. III. c. 23., and are only put by way of example, and not as judicial determinations.

(2) Rex v. Aberavon, Mich. 45 Geo. III. ante, 532.

(3) South Cadbury v. Braddon, 2 Salk. 607. Rex v. Audley, 2 Salk. 526.

(4) South Cadbury v. Braddon, supra (3). But that they ought to do so, see post, 558.

(5) Rex v. Audley, supra, (3); and see Rex v. Browne, ante, 303.(5) See also Rex v. Gayer, 1 Burr. 245. Ante, Vol. I. 57.

(6) Rex v. Preston, ante, 543. (1)

particular facts, which it is the exclusive province of the sessions to find. (1)

On appeal from an order of removal, the sessions confirmed the order, but refused to state a special case.

The counsel for Oulton, the appellant parish, excepted against their refusing to state the case specially, and the exception was returned into B. R. together with the orders. The court refused to grant a rule to shew cause for quashing these orders, because they can take notice of nothing but what was contained in the order. The counsel for Oulton No amendthen obtained a rule to shew cause why the return should ment of clerk not be amended, and the state of the case inserted by the turn, without clerk of the peace in the body of the order of sessions. session's conOn shewing cause, the clerk of the peace's counsel had no objection, if the court thought he might do it. But the respondents contended, that the return was perfect, and opposed the rule. Lord Hardwicke—I do not see what it is possible for the court to do in this case without consent. Here is no consent; so far from it, that, on the contrary, the parish concerned in interest opposes it. Here is an order of removal made by two justices; an


(1) “ To be sure it is a thing very much to be censured and discommended, when an inferior jurisdiction endeavours to preclude the parties from applying to a superior jurisdiction.” Per Lord Hardwicke C. J., Rex v. Oulton, Burr. S.C. 64. S.P. Per Dennison J., Rex v. Mayfield, Burr. S.C. 453. But in determining on the propriety of granting or refusing a case, the justices should be guided by the consideration, whether the question involves any difficult point of law; for though, as Lord Hardwicke says, it is censurable in an inferior jurisdiction, to endeavour to preclude the parties from applying to a superior jurisdiction; they are not through ill-founded fear of such a censure, to suffer parties to run into unnecessary expence, where there is little probability that the superior court will alter their determination. A similar observation has not unfrequently been made of late years, by the judges of K.B. on some cases which have been brought before them. Though the court of quarter sessions refuse to grant a case, the parties may bring up the order by certiorari for any defect apparent on the face thereof.

appeal therefrom; and a general order on that appeal, for confirmation of the order of two justices. The counsel at sessions except to the order of sessions in the words of a bill of exception, and state the fact. If the fact be true, the ground of the exception is right; but the exception sets forth, that the court of sessions refuse to state the matter specially. How then shall we do this that is now desired of us without their consent, even though the clerk of the peace should consent? It does not appear to us that the fact alleged is true; it is only the allegation of counsel, or perhaps there might be evidence given of it, and the sessions might not believe the evidence. Page J. - I do not know that this court ever enquires into the facts upon which the justices have determined; and they themselves have stated none, but have adjudged generally. (1)

Sessions may

But if the sessions entertain any doubt upon a point of state a case, or law, they may either refer the matter to the judge of assize refer to judge of assize. for his opinion, or state a case for the determination of

the court of king's bench, and this without the consent of the parties. (2)

Refer a point

“ The sessions do not always refer the whole case to the to a judge of judge of assize: sometimes they refer only a particular assize.

point, and reserve the final determination of the whole matter to themselves." (3)

And no other sessions has power to grant a case but that before which the appeal is decided and judgment given. (4)

(1) Rex v. Oulton, Burr. S.C. 64.; ante, 557.(1).
(2) Rex v. Justices of Sussex, 2 Bott, 745. Pl. 835.

(3) Per Probyn, Rex v. Tedford, Burr. S.C. 57. But see Lord Hardwicke C.J., ib.

(4) By an order of two justices, William Thomas and Mary his wife were removed from the parish of Michaelstone Vedoes, to the parish of Koedhermeer, both in the county of Monmouth.

But it is now more usual to obtain the decision of the Manner of superior court, by stating a special case. This is com

stating a spe

cial case. monly settled and signed by the junior counsel on each side.

If any difference arises between them upon the statement of facts, reference is had to the chairman's notes to ascertain them. But a fact may be so important or doubtful, as to require that it shall be specifically found by the bench, as other justices may differ from the chairman with respect to it. If the counsel cannot agree upon a case, the chairman may, with the concurrence of the majority of justices, state and sign one himself.

There is no certain form of submitting a case by the No particular

form of stating sessions to the judgment of the court of king's bench. (1)

a case.

The justices of sessions are judges of the fact, and the Must state

facts and not court of king's bench are judges of the law upon the facts,


An appeal against this order came on to be tried at the Easter sessions for the said county, when the court was of opinion, that the paupers were settled in Michaelstone Vedoes, and quashed the order of removal. A case was then applied for, but not granted, and an unconditional order for quashing the order of removal was entered and remained in the records of the sessions. At the following Midsummer sessions the respondents again moved, that a case should be stated for the opinion of the court of King's Bench in this appeal, on the ground that the sessions were mistaken in point of law, in holding the settlement of the paupers to be in Michaelstone Vedoes. The sessions now made an order, that such a case should be stated and signed by the chairman; and a certiorari was lodged at the Michaelmas sessions to remove these several orders.

Campbell obtained a rule to shew cause, why this certiorari should not be quashed, quia improvide emanavit; against which Money shewed cause, contending, that the sessions might, at any time, state a case for the opinion of the court of King's Bench. But Lord Ellenborough and Le Blanc, Bayley and Dampier, Justices, were clearly of opinion, that the magistrates had exceeded their jurisdiction at the Midsummer sessions, and had then no power to grant a case, or in any respect to controul or qualify the absolute order made at the Easter sessions for quashing the order of removal.

Rule absolute. Rex v. Michaelstone Vedoes, Mich. 54 Geo. III. Ex Relatione Mr. Campbell.

(1) Per Lord Hardwicke C.J., Rex v. Tedford, ante, 558. (3).

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