shewing cause (1)." By a subsequent regulation, the court directed, that a copy of the orders should be delivered to each of the judges, two by the clerk in court for the prosecutor, and two by the clerk in court for the defendant. (2) These cases are now set down by the clerk of the rules on the crown side of the court, in the crown paper, to be argued on the day given for shewing cause by the rule, being a crown paper day, that is one of those days in Crown paper term, which the court has set apart to hear arguments in days. criminal cases, prior to all other business. They are every Wednesday and Saturday in term, except the first and last day. The clerk of the rules on the crown side of the court, Delivering and the clerk in court employed for the prosecutor, make copies to the judges. each a copy of the record removed, one of which is delivered at the chambers of the chief justice, and the other at those of the senior puisne judge, two days before the case comes on for argument. The secondary and clerk in court, employed for the other side, make, and deliver in like manner, one to each of the junior judges. It is likewise proper for both parties to furnish all the four judges with an abstract of the points upon which it is intended to impeach, or support the orders. (3) ment. The case being thus set down in the cause-book, upon Of the arguthe crown side of the court, is called on in turn. If counsel appear only to support the rule, and the clerk in court, on his side, has delivered the paper-books to the judges, he may move to have it made absolute, upon affidavit of (1) 13 Feb. 1775. Burr. S.C. 806. (2) Trinity term, 11 Geo. III. (3) Mich. 45 Geo. III. Lord Ellenborough C.J., with the concurrence of the other judges, desired that this should be done in future, in all arguments upon the civil side of the court. Judgment right though on wrong grounds. Of the points to be argued. service (1), but not otherwise. (2) If none appear for the rule, or no paper-books have been delivered on that side, and the other side are ready to oppose it, the rule is of course discharged, and the order of removal affirmed. But if neither are present, the court order the case to be struck out of the paper. Usually, however, both parties appear, and then the case is first gone into by the counsel who shew cause against the rule, or, in other words, assign their reasons why the conditional rule, granted to the party removing the order, ought to be discharged. (3) After the counsel on that side have been heard in succession, beginning with the first in rank, those on the other side are heard in like manner, in support of the rule. The judges, if they see no difficulty in the case, deliver their opinions, usually seriatim, and pronounce judgment directly after the argument. Should the case require further consideration, they direct it to stand over, either for another argument, or their own more mature deliberation; or else they desire it to be sent back to the sessions, to have the facts more fully stated. But when it appears that the ultimate decision of the sessions, though founded on wrong grounds, is correct, the court will confirm their order. (4) The points which may be taken in argument, relative to orders removed into the court of King's Bench, are, 1. Such as originate in objections to the certiorari. 2. In defects arising upon the face of the orders removed by it. 3. Upon the law as it arises from the facts stated in a (1) This being to reverse the act of a court of record, is not considered as a matter of course. (2) Rex v. Inhabitants of Disburgh, Mich. 43 Geo. III. Rex #. Walpole, St. Peter's, Burr. S. C. 638. (3) It is called a conditional rule or rule nisi causa, &c. because it is granted to the party moving for it, unless sufficient cause be shewn against it, upon a day given for that purpose by the court, in the rule. (4) Rex v. Skeffington, 3 B. & A. 382. special case, to be grounds of the judgment given in the court below. 1. If the orders are improperly removed by the certiorari, the court will give no judgment upon them, but quash the certiorari. (1) 2. It has been shewn that orders made by justices, both in and out of sessions, may be removed by certiorari, although no case has been stated for the opinion of the court of King's Bench. (2) Where orders are so brought up, the court can only consider such errors as appear on the face of the proceeding, and will hear nothing of the merits, the order of sessions being in such case final (3); and if any thing is returned with the certiorari, in addition to the orders, they will take no notice of it. (4) Court only enter into errors on the proceedings. Also, if a fact appears doubtful on the face of the order, If a fact be they will intend that the sessions have done right. (5) doubtful B. R. intend the sessions to be And where such a general order is removed, the court right. cannot send it back to the sessions. (6) (1) Rex v. Hedingham, Sible, Burr. S. C. 112. Rex v. Newton, ib. 157. (2) Ante, 581. (3) Anon., 1 Vent. 310. 2 Bott, 745. Pl. 833. (4) Weston Rivers v. St. Peter's, in Marlborough, 2 Salk. 492. Rex v. Oulton, Burr. S. C. 68. ante, 598. (2). This seems uniformly true, where a special case has been reserved by the sessions; but, in orders of appointment, where no case has been reserved, the court has admitted affidavits to be read, stating a want of jurisdiction, or other illegal conduct in the magistrates, to invalidate them. See Rex v. Great Marlow, 2 East, 244. Ante, Vol. I. 57. Ib. 37. Rex v. Overseers of Bridgewater, Cowp. 139. 1 Bott, 26. Pl. 44. (5) Rex v. Mayfield, Burr. S.C. 455. Rex v. Normanton, ib. 213. But see post, 603. (1). Rex v. Margam. (6) Rex v. Normanton, ante (5). Will not send on affidavit, sent. Two orders of sessions, touching an order of removal, back an order had been brought up without the justices having stated a to be rectified, case; it was moved that the orders might go back to the without con- sessions, in order for them to be at liberty to amend the order of sessions, upon an affidavit stating, that the original order of two justices was not in fact discharged upon the merits (which were never entered into,) but quashed upon an apprehended mistake in form. The court gave a rule to shew cause why the order of sessions, discharging the original order of two justices, should not be rectified and made agreeable to the truth of the case. On shewing cause, an affidavit was produced by the other side, denying that the order was quashed for want of form. The judges held it doubtful, upon the affidavit, "whether it was discharged upon the merits, or quashed for want of form;" and therefore clearly and unanimously held, "that the court could do nothing in it." (1) But the court of King's Bench, where a material fact appeared doubtful on the face of the order, has directed the court of quarter sessions to enquire into the facts, and state them fully to the court, although they had not stated a case. (2). Thus, where "two justices removed a pauper from Langunwd to Margam by an order in which they adjudged him to be settled in Margam, by virtue of a certificate under the hands and seals of L. R. churchwarden, and H. T. overseer of Margam, and A. P. and S. W., justices of the peace, and attested by two witnesses. The parish of Margam appealed to the next sessions at Glamorgan (3), where the order was affirmed, on hearing the merits. These orders being removed here by certiorari, this court, in Hilary term, 1786, directed the sessions to state the number of overseers and churchwardens of Margam, at the time of granting the certificate. In answer to this rule, the court of sessions represented to the court of King's (1) Rex v. Bradenham, Burr. S.C. 394. 2 Bott, 735. Pl. 823. (3) i. e. for Glamorganshire. Bench, that they could not state the same without producing witnesses on both sides, which they did not conceive themselves authorized to do, without the further directions of the court of King's Bench. In Hilary term, 1787, the court of King's Bench ordered the court of sessions to examine into and certify the number of churchwardens and overseers of the poor, at the time of giving the certificate in 1741, and to examine and hear such evidence as should be produced by the parties to those facts. To this rule the justices returned, "that at the time of giving the certificate, there were two overseers and four churchwardens in Margam.” (1) The jurisdiction of the King's Bench over poor's Of the power of B. R. over rates is nearly similar to that which they exercise over rates; where orders of removal. But as the rate cannot be removed by there is an certiorari (2), the court of King's Bench do not exercise appeal. any power over it, until after it has been appealed against to the quarter sessions. Then, as the order made by the sessions, upon appeal, contains a copy both of the title of the rate and the allowance, if that is removed, the court not only exercise a direct jurisdiction over the order of sessions, but a collateral authority over the rate and allowance, as matters touching and concerning the same. does this whether the sessions state a case for its opinion or otherwise. (3) It over rates, case stated. "This was a rule to shew cause why a rate for the relief B. R. exercises of the poor of the parish of Effingham, in the county of jurisdiction Surrey, and an order of sessions confirming the rate, although no should not be quashed, on the ground that the parties applying for the rule were over-rated and over-charged. The court of quarter sessions had refused to state a special case; but the counsel for the appellant being of opinion that the (1) Rex v. Margam, 1 Term Rep. 775. by three judges. (2) Ante, 589. ib. 596. (3) But if no case is stated, the objection must appear on the face of the order. See post, 604. |
