B. R. quash or affirm all orders properly removed be fore them. Order con rule. 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. The court of king's bench exercise an authority over all orders, whether original or appellant, when returned before them, with the writ of certiorari, and either quash 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 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. v. 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. But it has been held, that although there may be a Exception. slight impropriety in not moving to quash the original order, yet if the order of sessions, although not expressly, does in effect confirm it, a motion to quash the order of sessions is sufficient to enable the court to examine the original order, and quash or affirm it upon such a rule. (1) It has been already shewn, that the court will give no judgment upon an order, unless regularly removed before them. (2) When the justices at sessions, therefore, do not return Form of rule the original order, as well as their own order made upon order not when original the appeal, it is not usual to mention such original order removed. in the rule nisi to quash, because it is not before the court. But if the sessions have affirmed the original order, and the court is of opinion that they have done wrong, by quashing the order of sessions, it has been generally understood that the original order also stands quashed (3). If the sessions have discharged the original order, and the court is of opinion that they have done (1) Rex v. Stanley, Cald. 172. (2) Ante, 592. (2), 601. (1). The rule by which orders are reversed or affirmed is thus laid down, in South Cadbury v. Braddon, 2 Salk. 607. 2 Bott. 745. Pl. 834. "If the sessions reverse the first order and that being removed appears to be good, this court must intend it was reversed on the merits, and affirm the order of sessions. If the sessions reverse the first order, and that being removed appears not to be good, we must intend it was reversed for form, and affirm the order of reversal. So, if the sessions affirm the first order, and that appears to be good, we must affirm the order of sessions; but if the first order appears bad, and the sessions reverse it, this court must reverse it, because it appears naught." But these observations apply to orders, where no reason is assigned for the judgment, and no case is stated. (3) This seems to demonstrate, that the justices ought to return all orders affecting the matter in question, whether original or otherwise, under the certiorari, which the writ in effect commands them to do. Of order when both orders removed. Original order not quashed if the sessions wrong, by quashing the order of sessions, it has been understood that the original order stands good. But when the original order is returned with the writ of certiorari, the court usually notices it in their judgment. When, therefore, the order of sessions affirms the original order, and the court affirm the former, they likewise affirm the latter. They also quash the original order, when that by which it is confirmed at sessions is quashed. (1) But the practice of quashing the original order does not seem to extend to cases where the merits of the appeal have not been properly tried at sessions, through the misdecided on the take or misconduct of that court; for that would deprive have not merits. (1) Rex v. Hacheston, Burr. S. C. 287. Road v. North-Bradley, 2 Str. 1168. Rex v. Sutton St. Nicholas, Burr. S. C. 276. This point was questioned in the following case. An order of removal was confirmed upon appeal. Both orders being afterwards removed into K. B. they were quashed for a defect of jurisdiction, apparent on the face of the original order, as not stating the justices who made it to be justices of the peace for the county. It was moved in the term after the court quashed the orders, that this rule might be altered, by omitting such part as relates to quashing the original order of the two justices; and that the same may only order, that the order of sessions, made in confirmation of the original order of the two justices may be quashed, and that the justices below may be ordered to enter a continuance to next sessions. The object of this rule was to enable the appellant parish to apply to the sessions for the expence of maintenance; which by 9 Geo. I. c. 7. s. 9. could only be allowed by the sessions on appeal, and an adjudication by them that the pauper was unduly removed. Which judgment would now be obtained; their former erroneous opinion being now corrected by the court's decision; and Rex v. Yarpole, post, 617.(1); was cited as warranting the motion. The motion was opposed in the first instance, and many cases were cited both antecedent and subsequent to Rex v. Yarpole, where the confirmatory order of sessions being quashed, the original order was likewise quashed by the court of King's Bench. The court gave no judgment upon the point, but refused a rule to shew cause, upon the ground that the party applied too late. Rex v. Moor Critchell, 2 East, 66. Ib. 222. But see Rex v. West Cranmore, post, 623, (6). the appellant of the advantage of litigating the facts upon which the original order is founded, without any assent or fault on his part. In such case the court do not quash the order, but direct the sessions to enter a continuance to the next sessions, and re-hear the appeal. An appeal against an order of removal was properly lodged. Upon the hearing, the justices at sessions being divided in opinion, affirmed the order by a majority of eight to seven; but subject to a case, whether three of the justices, who voted for the affirmative, had a right to join in the judgment. It being admitted that the order of sessions could not be supported, it was moved to quash both orders; but Lord Kenyon C. J. said, that it could not be done, as no judgment for quashing the original order was entered in the rolls of the sessions. If the court of sessions had quashed instead of confirming the original order, there would have been no difficulty; but the parties cannot come here per saltum; and as no judgment for quashing the order of justices was given at the sessions, we as a court of error cannot do what the court below should have done. We must make that part of the rule absolute, which has for its object the quashing of the order of sessions, and direct the justices below to enter a continuance to the next sessions, which appears to be necessary from a case in 2 Strange, when they may decide it; and the court ordered this accordingly. (1) But where the appellant might have gone into the merits B. R. affirms of his case at sessions, but chose to rely upon a point of the original, when appelform, the court have said they will presume he had no lant waives merits, and will affirm the original order, instead of sending the merits. it back to be re-heard. (1) Rex v. Yarpole, 4 Term Rep. 171. I have ventured to give this meaning to the case, but the argument of the learned judges seems to go further. B. R. quash where order extra-judicial. Secus if ses sion have no jurisdiction. The sessions quashed an original order, for that the adjudication was only, that the paupers have become chargeable. The court of king's bench were of opinion, that the words "have become chargeable," import, that they were so at the time of making the order of removal, and quashed the order of sessions. But they refused to send the case down for the sessions to go into the merits, Lord Mansfield observing, that it did not appear there were any merits and probably were none; for if there had been any, the parish would have relied upon them, instead of taking the objection they had done, and the court affirmed the original order. (1) If the sessions make an extra-judicial order, as if they confirm (2) or quash (3) an order of removal, where there is no appeal against it, the court usually quash the order of sessions. But where an order is made by a sessions, which has no authority whatever over the subject matter of it, the superior court has refused to take notice of the order. An appeal against an order of removal was made to a borough sessions, who affirmed the order, and stated a case for the opinion of the court of king's bench. The court agreed that the borough sessions had no jurisdiction to make this order of confirmation, and therefore their opinion and their order were both nugatory. The appeal ought to be to the quarter sessions of the county; as no such appeal has ever been made, the original order stands. The rule to shew cause why it should not be quashed must therefore be discharged, which was done accordingly, and the original order of removal confirmed, without noticing that made by the borough sessions. (4) (1) Rex v. Honiton, Burr. S. C. 680. (2) Rex v. Sutton St. Nicholas, Burr. S. C. 276. Godalming s. St. Michael's in Winchester, ib. (3) Road v. North-Bradley, 2 Str. 1168. Anon. 2 Salk. 479. |