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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)
Judgment right though on wrong grounds.
Of the points
The points which may be taken in argument, relative to be argued. 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 e. Walpole, St. Peter's, Burr. S.C. 638.
(3) It is called a conditional rule or rule nisi causá, &c. because it is granted to the party moving for it, unless sufficient cau 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 Court only enconsider such errors as appear on the face of the proceed- ter into errors
on the proing, and will hear nothing of the merits, the order of ceedings. 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)
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 ses
sions 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.
(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 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, on affidavit, 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)
Will direct in- But the court of King's Bench, where a material fact quiry when a material fact appeared doubtful on the face of the order, has directed seems doubt the court of quarter sessions to enquire into the facts, and ful.
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.
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 evi. dence 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 rates is nearly similar to that which they exercise over
of B. R. 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. It does this whether the sessions state a case for its opinion or otherwise. (3)
“ 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
over rates, Surrey, and an order of sessions confirming the rate, although no should not be quashed, on the ground that the parties ap
case stated. plying 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.
rate would appear to be bad from the title, they removed it (1) by certiorari, and obtained the present rule. The title of the rate was as follows: “ Surrey to wit. An assessment on all and every the occupiers of lands and houses, in the parish of Effingham, for the necessary relief of the poor, and towards payment of money borrowed for repairing and rebuilding the workhouse." The court being of opinion that as the rate appeared, from the title, to be made to raise money for an illegal purpose, it could not be supported; and made the rule absolute. (2)
But the court, in conformity to their proceedings upon
orders of removal, will not examine into any thing but B. R. only. examines into
on the face of the order of sessions. A poor what appears rate was made in October, 1789, and allowed in the Noon the order.
vember following; against which the defendant appealed to the ensuing Easter sessions, when the appeal was dismissed with costs, because it was not made to the next sessions.
The rate (3) and order of sessions having been removed into the court of King's Bench by certiorari, it was moved to quash the rate, for an informality appearing ou the face of it, as having been made by one overseer only; it being competent to the party, complaining of the rate, to take advantage of any defect which appeared upon it, notwithstanding the sessions had properly dismissed the appeal, because it had not been lodged in time. The proceedings below are now before the court, and they will not suffer a rate, which is allowed to be apparently illegal, to be confirmed here. But by Buller J. - Here the party objecting to the rate, is not entitled to remove it; and as the order of sessions is right, we cannot do otherwise than confirm it. Per Curiam, Order of sessions affirmed. (4)
(1) i. e, not the rate, but the order of sessions reciting the title.