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removing him, specially, that the pauper had come into the parish under a when charge- certificate, and that the former order was had before the able, to the same place is pauper became chargeable; but that, at the time of making good. the second order, he was become actually chargeable.
The court affirmed these last orders of the justices and the sessions ; for the two sessions' orders are very consistent with each other. The former sessions might discharge the former original order, because the paupers were not actually chargeable; and the latter sessions might confirm the latter original order, because they were become actually chargeable. Per Lee C. J. - The court are not at liberty to presume rights accruing subsequently, unless they do appear; but here it does appear the right did plainly accrue subsequently, by their actually becoming chargeable. (1)
Order on son's Upon the trial of an appeal at the quarter sessions, the evidence of his respondent parish proved relief granted to the father of father's. the pauper by the appellant while residing in the re
spondent parish, five years prior to the year 1815. The appellant, to rebut the presumption of the father's, settlement, tendered an order of removal made in 1815, quashing an order of justices for the removal of the brother of the pauper to the appellant parish. And they tendered parol evidence to shew that the ground of the decision of the court of sessions was, that the pauper's father had not at that time any settlement in the appellant parish, and consequently that the son had no derivative settlement there. The court held, that even supposing parol evidence to be admissible to prove the ground of the decision, still, that the order of sessions was not evidence that the pauper's father was not settled in the appellant parish in 1815, because the father's settlement was a matter that arose collaterally on the trial of the appeal. (2)
(1) Rex v. Osgathorpe, Burr. S.C. 261.
(2) Rex v. Knaptoft, 2 B. & C. 883.; and see ante, Vol. II. chap. xxxi. p. 146.; to which this case more properly applies.
S removing Orders in the Court of King's Bench, and quash
ing or confirming them there.
Of suing forth the Certiorari. It seems agreed at this day, that regularly the court of Certiorari may King's Bench, having a general superintendency over all the court of other courts of criminal jurisdiction, whether they be of an King's Bench. ancient or newly created jurisdiction, may award a certiorari, as well as the court of Chancery, to remove the proceedings before
any such court, unless the statute or charter which creates them expressly give them an absolute judicature exempt from such superintendency. (1)
Original orders, therefore, made by one or by more jus- To remove
orders original. tices, and those made by a court of sessions, either upon Upon appeal. appeal or by original jurisdiction, may be removed by writ of certiorari into the court of King's Bench, unless the jurisdiction is taken away by express and positive words. (2)
(1), 4 Hawk. P.C. 144. book. ïi, c. 27. See Rex v. Morely, 2 Burr. 104. Rex v. Eaton, 2 Term Rep. 89. Rex v. Sparrow, ib. 196. n. Rex v. J. 'Jukes, 8 Term Rep. 542.; and see Cates qui tam v. Knight, 3 Term Rep. 442.
(2) As to appeals against rates and overseers' accounts, 43 Eliz. c. 2. provides, that the order of the justices in sessions shall “ conclude and bind all the parties;" and 17 Geo. II. c. 38. s. 4. directs, that“ they (i.e. the justices) shall hear and finally determine the same.” 9 Geo. I. C.778.8uses the same words, viz. that the justices shall“ finally determine" appeals against orders of removal. But the superintending jurisdiction, by the court of King's Bench, is not taken away in any of these cases, sce post, 588.
It is in the discretion of the court in term-time, or of a single judge in vacation, to grant or refuse a certiorari. (1)
During term-time, it is granted by the court, upon motion How applied of counsel. (2) But in vacation, a fiat for a certiorari may for.
be allowed at chambers by any of the judges of the court of King's Bench. (3)
Six days' notice.
Previous to moving the court, or applying to a judge, the party who sues it forth must give six days' notice thereof, in writing, to the justice or justices, or two of them (if so many there be), before whom such proceedings have been, to the end that such justices, or the parties therein concerned, may shew cause, if they think fit, against issuing the certiorari. (4)
This notice is necessary to remove an order of sessions, although made subject to a case for the opinion of the court of King's Bench. (5)
Must be previous to motion for the writ.
It must be served six days prior to the application to the court of King's Bench for the writ of certiorari; for if the court should grant a rule to shew cause, six days' notice of that rule will not be sufficient. (6) A similar notice is necessary to be served, previous to an original application to a judge at chambers for his fiat.(7)
Notice on whom.
Where proceedings are to be removed from the session, this notice is usually served upon two of the justices,
(1) Anon., 7 Mod. 118. Arthur v. Commissioners of Sewers in Yorkshire, 8 Mod. 131. Rex v. Eaton, 2 Term Rep. 89.; and see Rex e. Justices of Glamorganshire, 5 Term Rep. 279.
(2) Rex v. Steers, 1 Barnard. K.B. 96.
(3) Rex v. Newton, Burr. S.C. 157. This is often necessary, in order to bring the party within the six calendar months allowed for suing out the writ by 13 Geo. II. c. 18.
(4) 13 Geo. II. c. 18.
(6) Rex v. Justices of Glamorganshire, 5 Term Rep. 279. ? Botty 754. Pl. 859. Rex v. Nicholls, ib. n.(a).
(7) See Rex v. Newton, ante (3).
whose names stand in the caption of the session, as having been present there.
Where an order remains with the justices who made it, On the justices they must be served with notice in like manner. (1)
But when the original order has been returned to the On the 506
sions. quarter sessions (2), or removed thither upon appeal, it is sufficient to serve notice upon the justices at sessions, for that will warrant a fiat for a certiorari as to the order of sessions; and if the writ commands them to return that order, they should return the original order, upon the appeal from which, the order of sessions was made (3), and its effect is to remove all proceedings relating to the subject previous to the return, although some of them may have originated after the teste. (4)
c. 18. S. 5.
The 13 Geo. II. c. 18. s. 5. further enacts, " That no By 13 Geo. II. certiorari shall be granted to remove any conviction, judg- must be sued ment, order, or other proceedings, before any justice of the for within six peace, or the general or quarter sessions, unless it be applied for in six calendar months after such proceedings had or made."
And it must be applied for within six months after the Although suborder is made, even where it is made subject to the opinion ject to a case. of the court of King's Bench, on a case to is stated; for it is beneficial to put a strict interpretation upon the clause. (5)
If the rule for a certiorari be moved for during term, or When in time. the judge applied to for his fiat in the vacation, on the last
- (1) See the opinion of Chapple J., ibid.
(2) Per Holt C.J., Anon., 1 Salk. 406. ante, 132. (5) Rex v. Newton, ante, 582. (3).
(4) Rex v. Battams and others, 1 East, 298., where it was held, that an indictment found at the quarter sessions between the teste and return of the certiorari, ought to have been removed under it. (5) Rex v. Justices of Sussex, 1 M. & S. 631.
day of the six calendar months, it is sufficient to warrant its issuing. (1) Likewise, where an order of sessions is made upon appeal, from an original order of two justices, it seems that an application, within six months after making the order of sessions, entitles the party to remove the origi
nal order along with it, although the latter was made before co?!! that time. (2)
Also, if a certiorari has been applied for in time, but is afterwards quashed for a defect in the return, it does not seem to warrant the party to apply for a new writ after the six months are expired. (3)
5 Geo. II.
5 Geo.II. c. 19. enacts, that no certiorari shall be al e. 19. of the recognizance. lowed, unless the party prosecuting it (4), before the allow
ance thereof, enter into a recognizance, with sufficient sureties, before a justice of the county, or place, or before the justices at sessions, where such judgment or order shall have been given or made, or before a justice of the King's Bench, in 501., with condition to prosecute the same; at his own costs and charges, with effect, without wilful delay, and to pay the party in whose favour the judgment? or order was made, within a month after the same shall be confirmed, his full costs, to be taxed' according to the course of the court where such order shall be. And if he shall not enter into such recognizance, or shall not perform the conditions, the justices may proceed to make such
(1) Rex v. Newton, ante, 582. (3).
(2) Ibid. The case does not state this expressly. But as the application to remove both orders was made on the same day, which is mentioned to be the last day of the six months after making the order of sessions upon appeal, the original order must have been made more than six months. See also Rex v. Warminster, Str. 470. In granting a certiorari to remove an order of the justices, for the removal of a pauper, quære, whether the six months are to be counted from the day of making the order, or from that of executing it, by which the time for appealing is regulated; see ante, 499.
(3) Ut videtur. Rex v. Newton, ante, 582, (3)....,