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3. But the most usual way in which these orders come When case
stated. before the court, is when they are made subject to a case stated for its opinion. (1)
It has been already shewn, that the court below nust Sessions must make an order one way or other, and cannot adjourn the adjudge. appeal into the superior court, accompanied by a case which states the facts only. (2)
Where a case is agreed at the sessions to be drawn up B.R. will not for the opinion of the judge of assize, and he has given it decide upon a
case which has after hearing counsel, the court will not, afterwards, enter been before into consideration of the matter, if the orders, containing the judges of
assize. the case, are removed by certiorari. For, by Lord Mansfield, — Here is a manifest consent of the parties to this reference to the judge, both parties having, by their counsel, been heard before him, and, therefore, this is, like all other references, by consent. If the determination of the judge of assize should not, in the present case, be final and conclusive, it would be adding to the trouble and expence of this sort of litigation, which is already too expensive. The rule was discharged for this reason, without entering into the mertis. (3)
Yet where a case was referred to the judge of assize, Otherwise, if and an order made by the sessions upon his opinion, but the no adjourn
ments until his appeal had not been continued by regular adjournments determination. until his determination was known, the court quashed the order of sessions, and affirmed the original order of the two justices. (4)
(1) Ante, 558. Rex v. Kniveton, Burr. S.C. 499.
(2) But the court of King's Bench will give judgment upon every order which sets forth the facts and reasons upon which it is made, whether it be made subject to their opinion or not. See ante, 571. (2). Rex v. Natland, infra, (3).
(3) Rex v. Natland, Burr. S.C. 793.
Of rectifying imperfect state of a case.
If a case is imperfectly stated, so that the court cannot give judgment upon the orders, it may be rectified in any of the following ways:
1 By quashing 1st, The orders may be quashed by consent of counsel the order.
on both sides, in which case the parties must begin de novo, and it may be made part of the rule, that the parish to which the first removal was made, shall accept of a new original order of removal, and not remove the paupers back till the merits of the said settlement be determined. (1)
2. Fact insert 2d, A fact may be inserted in the case under a rule obed by consent. tained by consent, to amend the order. (2)
3. Inserted in 3d, A fact may be admitted by counsel at the bar durthe rule by admission of ing the argument. But, in order that the opinion of the counsel, court may not appear upon its records to be given on a case
different from that upon which it was really founded, it must be made part of the rule by which the orders are quashed or confirmed, that such particular facts (setting them forth) were so admitted by consent of counsel. (3)
4. Sent back 4th, The court may send the case down to be re-stated, to be re-stated. either by consent (4), or by their own authority.
Grounds for remitting it.
The general reasons which seem to induce the court of King's Bench to remit a case to be re-stated, are, Ist, Where some material fact is omitted, or nothing but evidence is set forth (5); 2d, Where the facts are so stated that the court cannot give judgment upon the question submitted
(1) Rex v. Himley, Burr. S.C. 115, Rex v. Martley, ib. 120. Rex t. Deddington, ib. 220.
(2) Rex v. Great Chart, ib. 194.
(3) See the form of the rule. Rex v. Llandverras, ib. 573. A copy of a court roll of a manor was read in court by consent. Rex s. Warblington, 1 Term Rep. 241.
(4) Rex v. Nether Heyford, Burr. S.C. 479.
to them (1); 3d, Where it appears by the case that the merits have not been examined into by the court below, either through an improper rejection of evidence (2), or some other erroneous opinion entertained by the magistrates. (3)
The court, however, does not seem to have laid down No very
decided rule. any very decided rule for sending back cases; especially if they are enabled to collect enough from what is stated to warrant a decision upon the question submitted to their judgment
Thus it appeared by a case, that the court of sessions B. R. will not had rejected evidence. The court of King's Bench were remit where of opinion, that they ought to have received it; but think- terial to their ing likewise, that if admitted, it could not vary the con- judgment. clusion of fact drawn by the magistrates, they refused to send the case back, as it would only produce more litigation and expence, and quashed the orders. (4) So, where the sessions had stated evidence, instead of finding a particular fact, the court were of opinion that it would have been more regular for them to have done otherwise. But as the justices had, in effect, drawn the right conclusion, and could not, upon the premises, draw any other, the order was confirmed upon the foregoing reason, of avoiding expence and litigation.(5) Also, in
v. Bilsdale Kirkham, ib. 828., which are cases of orders of removal. Rex v. Hill, Cowp. 613. Rex v. Hogg, Cald. 266., and the opinion of Buller J., ib. 512. cases upon rates.
(1) See Rex v. Hitcham, Burr. S.C. 489.
(2) Rex v. Bramley, 6 Term Rep. 330. Rex o. Little Lumley, 6 Term Rep. 157. But in Rex v. Prosser, the order of sessions confirming a rate was quashed, where it appeared from the case that a witness had been rejected improperly.
(3) Rex v. Newbury, 4 Term Rep. 475., where a case was sent back to be reheard, when the sessions had quashed a rate upon a point relating to the practice of their own court, although the court of King's Bench were of opinion that their practice was right.
(4) Rex v. Nutley, Burr. S.C. 701. (5) Rex v. Shebbeare, 1 East, 73.
one instance, an order of removal, and order of sessions confirming it, were quashed, because the case was imper, fectly stated. (1)
Not for de- Likewise, where sufficient facts are returned in the case, fect appearing the superior court will not send it down to be re-stated, affidavit. upon a suggestion, supported by affidavit, that the state
ment thus returned up, is contrary to the facts as they appeared at the hearing. (2)
Where a case was stated respecting a poor's rate, the court thought they could not send it back to the sessions, unless for a defect appearing on the face of it. (3)
“ The appellant was rated for the farm and lands 321. ; for the iron and coal mines 701.” The iron mines not being rateable, the court of King's Bench was pressed to send the case back to sessions, to ascertain the proportion at which they had been rated with the coal mines, and to amend the rates, by deducting it from this conjoint assessment. But the court thought, that not having any means to ascertain the several proportions at which the iron and coal mines had been rated, they could do nothing else than quash the order of sessions, which having confirmed the rate generally, was wrong at all events. (4)
Also, where the sessions quashed a rate, and it appeared to the court of King's Bench, that a large tract of rateable land was not assessed therein, the order of sessions was confirmed. (5) But where the sessions confirmed
(1) See Rex v. Luffington, Burr. S.C. 232. Rex v. Dursley, 6 Term Rep. 53.
(2) Rex v. Burgh in the Marsh, Burr. S.C. 745. Pl. 828.; and see Thackham v. Findon, 2 Salk. 489. also ante, 602. (1).
(3) i.e. of the case, Rex v. Coode, 2 Bott, 276. Pl. 270...
(4) Rex v. Cunningham et al., 5 East, 478.; and see Rex • Leeds and Liverpool Company.
(5) Rex v. Aberavon, 5 East, 453, ante, 532.
Of the Manner of sending down a Case to be re-stated, &c.
a rate, and the court of king's bench was of opinion that certain burgesses, who occupied lands as tenants in common, had been improperly omitted ; the rate (i. e. the order of sessions) was sent back to have the rate amended, by the insertion of the burgesses occupying the
Likewise, when the parish officers gave no evidence respecting the amount of the property rated, as tithe rent and composition, the court sent the case back to be reheard, re-considered, and re-stated. (2)
The court not only send down an order, generally for B.R.remits an the purpose of being re-stated, but where they think it direction to necessary, remit it, with special directions inserted in sessions to the rule by which it is sent down, commanding the make certain
inquiries. justices at sessions to enquire into and state particular
Likewise, if the cour tare dissatisfied with the new case, B. R. remits a they will remit it back a second time to the court of session
case a second
time. for further inquiry. (4)
of the Manner of sending down a Case to be re-stated, and
horo the Sessions are to proceed.
WHERE a case is sent down to the sessions to be re- Ancient form
of remitting stated, the form of proceeding used to be, before the re
orders. gulations that rules nisi for quashing orders should be
(1) Rex v. Watson, 5 East, 480. (2) Rex v. Topham, 12 East, 546.
(3) Rex v. Clifton upon Dunsmore, where the case arose upon an order of removal, Burr. S.C. 697. Rex v. Hogg, a case stated upon a poor's rate, Cald. 266. See also Rex v. Margam, 1 Term Rep. 775. ante, 603. (1).
(4) See Rex v. Bray, Burr. S.C. 682. Rex v. Clifton upon Dunsmore, ib. 697. Rex v. Margam, supra, (3).