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The caption, or title (1), must consequently state the form of the sessions at which the order is made, and that is held in caption. and for the county. (2) Also, whether it is a general, or general quarter sessions. (3) Likewise, if an order is made Must state the at an adjourned sessions, it must appear, by the caption, adjournment. when the original sessions were holden (4), because the exercise of the justices' jurisdiction is limited by 2 H. V. c. 4. to particular times. If there have been several intervening adjournments, it is usual to set them all out; but the continuance from day to day need not. Sunday being a dies non, it is not the practice to set out the adjournment from Saturday night to Monday morning. (5) Also if an appeal
(1) The clerk of the peace does not prefix a caption to each order which he enters in the records of the session. He makes one general caption for each sessions or adjournment, under, and with reference to which he enters the several orders which are there made. But when it is necessary to draw out an order in form, as if one is to be removed by certiorari, or given in evidence, the caption is prefixed to it; and this is what is spoken of in the text.
(2) Anon., 1 Vent. 39.
(3) Where an appeal is given to the general quarter sessions only, as that against rates was under 43 Eliz. c. 2. it seems fatal to an order to state it to be made at a general sessions," instead of a general quarter sessions.” See Purnall's case, 2 Salk. 476. Poor Sett. 140. Rex v. Turncock, 2 Salk. 474. Rex v. Colliton, Carth. 222. And Rex v. Justices of London, ante, 492. (1).
(4) Rex v. St. Michael's, Ipswich, 2 Str. 831. Rex v. Harrowby, Burr. S.C. 102. Rex v. Heptonstall, Burr. S.C. 88. In all which cases, orders were quashed for this defect. Rex v. Hindercleave, 19 Vin, Abr. 556. 2 Bott, 723. Rex v. Inhabitants of Middlesex, Andr. 101. See Rex v. Bartlett, post, 566. (1).
(5) Order made by a sessions mentioned in the caption to be “ held 12th January, being Monday after the Epiphany, and continued by several adjournments to this day.” It was moved to quash this order, because every particular adjournment ought to have been set out, in order to shew that there was no discontinuance; but held that there was no necessity for setting out the adjournments, they being merely discretionary. Rex v. Inhabitants of Middlesex, Hil. 11 Geo.II. Andr. 101. 5 Hawk. P.C. 89. Book II. chap. viii. s. 14. Caption of an indictment of sessions was, sessio tent. vicessimo et vicessimo octavo die Julii, &c. Per Holt C.J., it is naught, for though a sessions may adjourn from one day to another, and so sit by adjournment, yet it must not appear in a
is respited from one sessions to the next, the continuance by a proper adjournment should be entered (1); for otherwise, the justices appear to make their order without jurisdiction. But this is unnecessary, where the justices are not confined to determine the appeal at a particular sessions; such is the case of an appeal against overseers' accounts, under 43 Eliz. c. 2. (2) The caption should set forth, likewise, the names of as many of the justices who appear at the sessions as are sufficient to shew it to be regularly held in point of numbers; and one which contained the names of some of the magistrates present, adding the words, “ and others of their fellows," has been held sufficient. (3) But it is usual to set out the names of all the justices who attended the session or adjournment, at which the appeal was heard, except those who made the order. (4)
lamp as sitting three days together, but distinctly. Lingfield and Battle, 2 Salk. 605.
(1) Rex v. Hedingham, Sible, Burr. S.C. 112. Rex t. Yarpole, 4 Term Rep. 71. See also Rex o. West Torrington, Burr. S.C. 293. and ante, 503. (1), post, 605. (4).
(2) Rex v. Bartlett, 1 Bott, 306. Pl. 345. This was an order of sessions, made in an appeal against overseers' accounts. Being removed into B.R., the following objections were taken to it among others: First Exception, the appeal was lodged at a former sessions; and as it does not appear when they were held, it might be an illegal day, and the court will not intend that the sessions were held on a right das, unless that appears. Second Exception, it does not appear that the appeal was adjourned: and if not, the justices cannot proceed de noro, every new sessions being in nature of a new court. Lord Hardwicke C.J., all the exceptions but one have received answers; riz, that touching the jurisdiction of the justices of the sessions, as to the conti. nuances; and I do not think that the justices are bound to make formal entries of them. As to the holding of the former sessions, we are not to presume it to be held at a wrong day: and it is well enough to say, that it was done at the last general quarter sessions, and if you had any objection, you might have removed the former order; it is like the case of exception to the recitals of original writs, which cannot be taken advantage of, unless the original is returned by certiorari.
(3) Rex v. Inhabitants of Middlesex, Hil. 10 Geo. II. Andr. 103.
(4) It seems as if it had been held in one case, that if their names are set out in it, the order will be quashed. Case of Foxam Tithing,
It was formerly necessary, in a variety of cases, to state Need not.state that one, at least, of the justices, was of the quorum; the quorum.
one to be of but since the 26 Geo. II. c. 27. it is not so; and indeed it is usual on making out commissions now, to make all the justices, but one or two, of the quorum. (1) But if the caption describes them to be justices of the peace, it need not state any other commission by virtue of which they sit; for it is in that capacity they hold their sessions, for the examination and judging of matters relating to the poor. (2)
An order must likewise appear to be made on appeal, Must shew
that it is made or the court will not supply such defect by affidavit. (3)
on appeal But one beginning, “Upon hearing the appeal of Burcott," was held well enough, for it must be intended to
2 Salk. 637. According to the report, a justice of peace was surveyor of the highway, and a matter which concerned his office coming in question at the sessions, he joined in making the order, and his name was put in the caption, and it was quashed.” But in Rex v. Sowton, which was an order of sessions, made upon an appeal from an order of removal, not only the names of the justices who signed the original order appeared in the caption of the sessions, but the case for the opinion of the court of King's Bench was signed by them only. No notice was taken of this point, but the order of sessions was quashed on the merits. Burr S.C. 125. Likewise in an appeal against overseers' accounts; the case stated, that one of the churchwardens, being also a justice, did not sit to hear the appeal at the sessions, but it appeared by the caption that he was present at them. The court of B.R. was of opinion, that if he had acted as judge in the cause, it would have been an objection fatal to the order, but that as it appeared by the case, that he withdrew and did not sit at the determination of the appeal, it cured the objection. Rex v. Earl of Ashburnham, ante, 462.
(1) In Surrey all but one.
(3) Garrat v. Foote, Comb. 133. i Bott, 262. Pl. 253., which seems a loose note upon this point in an appeal against a poor rate. Anon., 2 Salk. 479. S.P. in an appeal against an order of removal, S.C. by the name of Tudy v. Padstow, 3 Salk. 257. Godalming v. St. Michael's in Winchester, Burr. S.C. 278. n. Road v. North-Bradley, 2 Str. 1168. i Sess. Cas. 280. S.C.
be the appeal of the parishioners. (1) And where an order of two justices was quashed at sessions upon appeal, without saying at the appeal of the party grieved, the court were inclined to quash the order for this fault, until they were informed that the precedents were most of them so: and for that reason, and that only, as the chief justice declared, the order was confirmed. (2)
Need pot state The time at which the removal was made, or a notice the time of
of the original order given, need not be set forth in the removal.
order of sessions. (3)
Should dis- But it should refer with sufficient distinctness to the tinctly refer to order or rate, which is the subject matter of the judg. the order or
Form of the The substantial or adjudicating part of the judgment adjudication. should be expressed in such a manner, as to render the
order conclusive between the parties, when decided upon the merits; but to prevent its being so, when given upon a point of form. (5)
(1) Rex v. Burcott, Sett. and Rem. 25.
(2) Rex v. Almanbury, i Str. 96. Fort, 301. S.C. Where it is said that the precedents were four to one against this form, but most of them from the West Riding of Yorkshire, whence the case came agreed with it.
(3) See Milbrooke v. St. John's, Southampton, ante, 499. (2). Res v. Turley, 1 Sess. Cas. 274. Road v. North-Bradley, ib. 280. See also Rex 2. Brimpton, Hil. 45 Geo. III. ante, 210. (2). Browne's case, Comb. 448. Sembl. contra. Per Holt C.J., “ Wheresoever it doth appear that there might be an intervening session by law, it lieth upon the party to prove, that he had not notice till after the next session. Nay, it should appear so in the order of sessions." Ib.
(4) As rates cannot be removed by certiorari, it is usual, and seems proper to set forth the title and the allowance by the justices in the order. See Rex r. Wavel, Dougl. 116. ante, Vol. I. 68. wbere this was done.
(5) The justices cannot be compelled to set forth in their order, whether they decide upon the form or the merits, South Cadbury e. Braddon, ante, 556.(3). As to when the court of King's Bench will
If the judgment upon an appeal, against an order of 1. Order on removal, be for the appellant, it is, Ist, to allow the appeal against
removals. appeal ; 2d, To quash the order. When, for the respondent, 1st, To dismiss the appeal; 2d, To confirm the order. The court may likewise confirm an order in part, and quash it as to the remainder; as when a pauper and his children are removed, and the settlement of the pauper appears to be in one parish, and that of the children in another. The court gives costs to the successful party; and in cases where the order is quashed, directs an allowance for the pauper's maintenance, from the time of removal to that of the judgment. An allowance of the Allowing apappeal is no quashing of the order of two justices, although peal does not costs are given. (1) If, therefore, the sessions intend, in ginal order. such case, to decide upon the question of settlement, the original order should be quashed.
Where an order is quashed generally, that must be taken Where necesto be upon the merits. (2) It may sometimes be quashed the grounds of for a defect really formal, but which is so far considered as adjudication. substance, that it cannot be amended under 5 Geo. II. c. 19. As, where an order is quashed for want of a proper adjudication of the pauper's last legal settlement (3); or upon some other ground not directly connected with the question of settlement; as if the respondents are unable to prove the pauper actually chargeable. (4) In such cases the grounds of the adjudication should appear in the order, to prevent the parties being concluded by the judgment, and enable them to try the merits by a fresh order of removal and appeal. (5)
intend that it was quashed upon the merits, and when for want of form, see infra, (2).
(1) Per Lord Hardwicke C.J., Rex v. Sarratt, Burr. S.C. 73. 2 Bott, 693. Pl. 754.
(2) Per Lord Kenyon C.J., Rex v. St. Andrew's, Holborn, 6 Term Rep. 613. But it seems only to amount to a presumption which may be rebutted by evidence, see Rex v. Osgathorpe, infra, (4).
(3) See Rex v. St. Andrew's, Holborn, supra (2).