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peremptory; to grant a rule to enlarge the former rule, for shewing cause why the order sent up should not be quashed, and also that it be referred back to the justices of the peace in and for the county, to state the facts, or to hear fresh evidence, &c. as the case might be. (1) The rule also ran, that the orders (describing them which were removed by certiorari) be sent back to sessions (2), and
further, that the sessions do afterwards return the same to Modern prac- the court. (3) But the modern practice has been, to make tice.
a rule that the orders returned with the writ of certiorari be sent back to the sessions to be re-stated, sometimes adding the particular point upon which the court wishes for information.
This rule, together with the original record, is delivered by the clerk of the rules to which ever side applies for it; usually the attorney for the party whose interest it is to have the facts re-stated. They are then carried back, and lodged by him with the clerk of the peace; and the appeal is thereupon entered in the list of appeals for the ensuing sessions.
Inquiry at sessions, a new trial.
Where the inquiry directed to be made respects a matter of fact, the rehearing is considered in the nature of a new trial. The parties must, therefore, proceed as if it were an entire new business, and prove the whole of their case over again as they did originally, without taking notice of what passed before.(4)
(1) See Rex v. Nether Heyford, Burr. S.C. 479. Rex e. Knivetos, ib. 499. Rex v. Clifton upon Dunsmore, ib. 697.
(2) Rex v. Kniveton, supra, (1). Rex v. Hitcham, Burr. S.C. 489. Rex v. Clifton upon Dunsmore, supra, (1). Rex v. Page, 2 Bott, 736. Pl. 825.
(3) Rex v. Nether Heyford, supra,(1).
(4) Rex v. Page, 2 Bott, 736. Pl. 825., where the court so highly resented the behaviour of the justices in refusing to hear evidence, as to declare, that if any body would move for an information against them, they would certainly grant it. See also Rex v. Bramley, 6 Term Rep. 330. 2 Bott, 743. Pl. 831. S.P. But that it must be a very strong case indeed, with flagrant proofs of their having acted from corBut it is said, that where a case is sent down for infor- But where remality only, the sessions must not even hear new evidence. mitted for
informality, This was holden where a majority of the justices, at the sessions not to second sessions, were not present when the original case
hear evidence. was stated at the former one.(1)
Cases are so rarely remitted back by the court of king's Manner of re
hearing apbench for inquiry, that rules to regulate the mode of pro- peals. ceeding upon this second hearing of appeals can scarcely be considered as established by the settled practice of any court of sessions.
But as it has been compared by the judges to proceed- of the notice, ings upon a new trial, it seems as if the appellant ought to &c. serve a fresh notice, in the same manner as the plaintiff is obliged to do, where the record goes down a second time, to have the cause re-tried by a jury. (2)
It seems, also, that the court of sessions must enter con- Of the continuances from the sessions at which the case was originally tinuance. stated, down to that at which it is re-heard, in obedience to the rule of court. (3) This appears more necessary, as there is no continuance from the inferior to the superior court. (4) Further, it has been held in one case, that an order of sessions, imperfectly stated, and sent back to be re-stated, is quite out of the case, upon the return of the second order, and a perfect nullity. (5) In strictness, Should be a therefore, the sessions ought to make a new order, and a new case. second case should be signed by counsel, and the record drawn up by the clerk of the peace in the same form as that which was originally returned into the court of king's
rupt motives, that would warrant a rule for an information. Rex v.
(1) Rex v. Bray, Burr. S.C. 682.
(5) See Rex v. Yarpole, 4 Term Rep. 71., post, 617., and the cases cited, ante, 515.(1).
(4) 1 Tidd's Practice, ead. ed. 349.
bench. The sessions may possibly, indeed, by reference to the first special case, so far incorporate it with the second as to make it part thereof; but the most regular and better way is, to draw it up as is before stated.
Sessions may Upon this re-hearing, the court of sessions may make make an order
order diametrically opposite to that which they had contrary to the former: first made. Thus, if the first order of sessions allowed
the appeal, and quashed the original order, the second may dismiss the appeal, and confirm the original order. (1)
Motion to quash this order on its return.
After the sessions have re-stated the case, a record is to be drawn up and sent to the crown office by the clerk of the peace, in the same manner as that originally returned. A motion is then made in the court of king's bench for a rule to shew cause why this re-stated order, and (where necessary) the original order, should not be quashed. (2) The case is set down as before, by the clerk of the rules for the crown side of that court, to be argued on the day mentioned in the rule. But where the order of sessions last returned differs in the judgment from that first sent up, the party who was formerly represented by the crown then becomes the defendant (3), and the motion to quash the order must be made by counsel on that side. (4)
(1) Rex v. St. George's, Southwark, Burr. S. C. 283.
(2) Rex v. Bath Easton, Burr. S. C. 777. Rex v. Bilsdale, Kirkham, ib. 833. But quære, whether this was necessary, where the original rule had been enlarged, unless possibly where the sessions had made a different order. See ante, 610.(1).
(3) Ib.; and see Rex v. Kniveton, Burr. S.C. 499.
(4) It is unnecessary for the party who obtains the certiorari, to enter into a second recognizance, where the case is returned back to the king's bench under a rule of that court. But quære, whether, if the second order of sessions reverses the first, and the parish who thus become defendants resist it upon the return, they must not enter into a recog. nizance to secure the opposite party his costs. See the form of a motion in a case nearly similar. Rex v. Ashton Underhill, Cald. 415. ante, 586. (1).
Of the Judgment of the Court, and Costs thereupon.
1. Or the court's judgment.
When the case is thus completely stated and argued, The judgment. the court proceed to give judgment.
They have not only an appellant but an original juris- Jurisdiction
for B.R. over diction over the orders removed. For if an order of re
orders removal, or any other is returned into the court of king's moved. bench, after the time for appeal has elapsed (1), it may be quashed or confirmed. This may be done also where there has been an appeal, although the sessions have exercised no jurisdiction over the order, but dismissed the appeal for other reasons. (2)
But the court has no jurisdiction to amend a poor rate by 41 Geo. 3. c. 20. s. I. They can only quash an order which confirms an improper rate, leaving the rate to be amended where necessary, by the sessions. (3)
It does not seem absolutely necessary, in some cases, Jurisdiction for the court of king's bench to exercise any jurisdiction orders than over an original order, from which there has been an one. appeal to sessions. Thus, if an order of sessions quash the justices' order, and the order of sessions is affirmed, there is no occasion to pronounce any judgment upon the original order, because it remains quashed by that which was made at sessions. So, if an order of sessions confirm
(1) Rex v. Sutton St. Nicholas, Burr. 276. and ante, 587.
(2) Rex v. Stanley, Cald. 172. Where, in an order of bastardy, the court quashed the original order of adjudication as defective, and confirmed the order of sessions, dismissing the appeal against it. (3) Rex v. Milton, 3 B. & A. 120.
an order of two justices, and the order of sessions is affirmed, it seems unnecessary for the superior court to confirm the original order, because it remains in force, as being confirmed by the sessions upon appeal.
B. R. quash or The court of king's bench exercise an authority over affirm all orders properly
all orders, whether original or appellant, when returned removed be before them, with the writ of certiorari, and either quash fore them.
or confirm them, however they have been dealt with at sessions. The reason of this seems to be, that all orders removed by certiorari remain for ever after upon the files of the court. They must, therefore, like all other judicial proceedings, derive their power to bind the subject, from being the acknowledged acts of that court in which they remain recorded, and for this purpose the court makes some order respecting them. This practice is highly beneficial to parties who are interested in orders thus removed, as the court will grant an attachment if their orders are disobeyed. (1)
Whenever the court is of opinion, therefore, that an order of sessions is good, they not only discharge the rule to shew cause why it should not be quashed, but proceed and give judgment of affirmance, without which the party would not be entitled to his costs.
This judgment does not extend beyond the terms of fined to terms the original rule, to shew cause why the orders mentioned of original rule. therein should not be quashed or confirmed. Thus, if
the rule is only to quash the order of sessions, and the original order of justices is untouched by that order, the court do not proceed to deal with such original order upon that rule. (2)
(1) See the opinion of Holt C.J., Reg. o. West, 2 Lord Raym. 1157. ante, 326.
(2) This remark does not extend to quashing or confirming an order in part, where the rule refers to an entire order.