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former parish; and why should one parish be concluded by the insufficiency of the evidence given by the other? It may be collusive; it is at least res inter alios acta, and should only bind the contending parties. (1)

conclusive

But the session's decision upon an order of removal, even Adjudication between contending parishes, is conclusive only where it of session only expressly decides the fact of the pauper's settlement. If when made the order is quashed for want of form, the same parish upon the may remove a second time to that which has succeeded in the appeal. (2)

Thus where two justices removed a pauper from S. to B.; B. appealed to the sessions, and the appeal was allowed, because the inhabitants of S. did not produce the order, and S. was ordered to pay costs. It was held that two justices were not precluded, by the allowance of this appeal, from again removing the pauper from S. to B. For the sessions only allowed the appeal, and an allowance of the appeal is no quashing the order of the two justices. The sessions only declare that the appeal was proper, but they give no judgment one way or other (3), i. e. upon the pauper's settlement.

So also where the pauper, a certificate man, was removed before he was actually chargeable; and the order was appealed from, and discharged generally by the sessions. He was removed a second time; and the sessions, upon a second appeal, confirmed the second order, and stated

(1) Cirencester v. Coln, St. Aldwin's, Burr. S.C. 17. Mynton v. Stoney Stratford, 2 Salk. 527. Swanscombe v. Shenfield, ib. 492. Rex v. Bentley, Burr. S. C. 425. Rex v. Bradenham, Burr. S. C. 394. Beddingham v. Kingston Bowsey, Carth. 516. 2 Salk. 486. That an order quashed is conclusive between the contending parties. Rex v Leigh, Cald. 59. And see ante, 232. et seq.

(2) Rex v. Bishop's Walton, Fol. 275. Rex v. St. Andrew's, Holborn, 6 Term Rep. 615. Where the first order was quashed for a defect in the adjudication of the pauper's settlement.

(3) Rex v. Sarrat, Burr. S.C. 75.

merits.

Instances: appeal allowed, but original order not quashed.

Order quashed tificate man was removed before chargeable; a subsequent order

because a cer

when chargeable, to the same place is good.

removing him, specially, that the pauper had come into the parish under a certificate, and that the former order was had before the pauper became chargeable; but that, at the time of making 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 ap pear; but here it does appear the right did plainly accrue subsequently, by their actually becoming chargeable.(1) !

Order on son's

settlement, no

father's.

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Upon the trial of an appeal at the quarter sessions, the evidence of his respondent parish proved relief granted to the father of the pauper by the appellant while residing in the respondent 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)

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(2) Rex v. Knaptoft, 2 B. & C. 883.; and see ante, Vol. II. chap. xxvi. p. 146.; to which this case more properly applies.

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Of removing Orders in the Court of King's Bench, and quash

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Ir seems agreed at this day, that regularly the court of Certiorari may

King's Bench, having a general superintendency over all other courts of criminal jurisdiction, whether they be of an 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 justices, and those made by a court of sessions, either upon 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)

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(1), 4 Hawk. P.C. 144. book. ii, 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.

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(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. 7. s. 8 uses 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, see post, 588.

be granted by the court of

King's Bench.

To remove

Upon appeal. orders original.

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 be allowed at chambers by any of the judges of the court of King's Bench. (3)

for.

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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)

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)

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 t. 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.

(5) Rex v. Justices of Sussex, 1 M. & S. 631.

(6) Rex v. Justices of Glamorganshire, 5 Term Rep. 279. 2 Bott, 754. Pl. 859. Rex v. Nicholls, ib. n. (a).

(7) See Rex v. Newton, ante (5).

whose names stand in the caption of the session, as having been present there.

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V&A Where an order remains with the justices who made it, On the justices they must be served with notice in like manner. (1)

making the order.

sions.

But when the original order has been returned to the On the sosquarter 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. must be sued

The 13 Geo. II. c. 18. s. 5. further enacts, "That no By 13 Geo. II. certiorari shall be granted to remove any conviction, judgment, 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."

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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)

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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 re

turn of the certiorari, ought to have been removed under it.

(5) Rex v. Justices of Sussex, 1 M. & S. 631. - *

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