Instances in cases stated upon a rate.

Statement of irrelevant facts surplusage.

B. R. does not remit to have fraud found.

selves to such as are necessary to determine the appeal before them.

Thus, upon an appeal, because personal property was not rated, a case was stated, omitting by consent of counsel, the fact of usage in the parish as to rating it, in order to bring the general question of its rateability before the court. But the judges, who were at that time of opinion that the circumstance of parochial usage was material in deciding the particular case, declared, that the sessions and counsel had no right to waive stating it, and ordered the case to be referred back to the sessions, for the purpose of finding this fact. (1)

But the statement of an immaterial or irrelevant fact will not prevent the court from deciding upon the merits of a case (2); and they seem never to have remitted one back to the sessions, in order to find the fact of fraud, however pregnant such a conclusion might be on the evidence stated. (3)

SECT. IV.

Order must

state the session's jurisdiction.

Of the Form of the Order or Judgment upon the Appeal.

If a particular jurisdiction does not shew the matter (4) to be within their authority, it must be concluded to be out of it. (5)

The sessions must, therefore, set forth in their orders upon matters of appeal, as well as in other cases, sufficient facts to shew a jurisdiction.

(1) Rex v. Francis Hill, Cowp. 613. 1 Bott, 275. Pl. 269.

(2) Rex v. Minchin Hampton, 3 Burr. 1310. a case upon a rate. Rex v. Middlezoy, 2 Term Rep. 41. case upon a settlement. (3) See the cases upon Fraud, ante, 561.

(4) i. e. upon which they make an order.

(5) Per Twisden J. ex relatione Holt C. J., Rex v. Audley, 2 Salk.

526.

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 66 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. 356. 2 Bott, 725. 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 Juli, &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)

lump as sitting three days together, but distinctly. Lingfield and Battle, 2 Salk. 605.

(1) Rex v. Hedingham, Sible, Burr. S. C. 112. Rex v. Yarpole, 4 Term Rep. 71. See also Rex v. West Torrington, Burr. S.C. 293. and ante, 503. (1), post, 605. (4).

(2) Rex v. Bartlett, 1 Bott, 506. Pl. 345. This was an order of sessions, made in an appeal against overseers' accounts. Being removed into B.R., the following oojections 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 day, 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 continuances; 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,

one to be of

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. 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, or the court will not supply such defect by affidavit. (3) 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 sur-
veyor 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 over-
seers' 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.

(2) Anon., 19 Vin. Abr. 355.

(3) Garrat v. Foote, Comb. 155. 1 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. 1 Sess. Cas. 280. S. C.

Must shew that it is made

on appeal.

Need not state the time of removal.

Should dis

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)

The time at which the removal was made, or a notice of the original order given, need not be set forth in the order of sessions. (3)

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

rate, &c.

Form of the

ment. (4)

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, 1 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). Rex v. Turley, 1 Sess. Cas. 274. Road v. North-Bradley, ib. 280. See also Rex v. 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 v. Wavel, Dougl. 116. ante, Vol. I. 68. where 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 v. Braddon, ante, 556. (3). As to when the court of King's Bench will