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Also, where an original order is quashed, for a defect appearing on the face of it, the ground of the judgment is stated in the rule. (1)
2. In the case of a rate.
The judgment in the case of rates is, if the rule is discharged, to confirm the order of sessions confirming the rate (2), or to affirm the order of sessions quashing the rate (3); or, where the rule is made absolute, to quash the order of sessions confirming the rate (4); in some cases, also, the order has been to quash the order of sessions and confirm the rate. (5)
Judgment is by a rule.
As all cases, whether upon orders of removal, appeals against rates, or overseers' accounts, &c. come originally before the court upon motion, their judgment is given in
(1) See Rex v. Moor Critchell, 2 East, 222.
(2) Rex v. Matthews, Cald. 1. Rex v. Butler, ib. 94. Rex v. Rodd, ib. 147. Rex v. Hogg, ib. 266.
(3) Rex v. Sandwich, Cald. 145.
(4) Rex y. Prosser, 4 Term Rep. 17. i Bott, 285. Pl. 277. Rex e. Sillis et al. Cald. 524.
(5) Rex v. Beeding, Cald. 90. Rex v. St. Nicholas, Gloucester, ib. 262. I have been enabled, by the kindness of Messrs. Dealtry and Barlow, to examine the rule-book and files in the Crown-office, respecting these cases, and I find the rules to be as here stated, although the rate itself was returned in neither case. The present practice is, as is stated, ante, 615. i. e, not to mention any proceeding in the rule nisi, or in the court's order, which has not been returned before them with the writ of certiorari. Of course nothing is said as to the confirmation of the rate, as it cannot be removed. I find upon search, that both the rule nisi and order were merely to quash the order of sessions in Rex v. Wavell, East 19 Geo. III. But it is reported in Doug. that the rule nisi, and the judg. ment thereon went to quash the rate, as well as the order of sessions confirming it. Doug. 116. ante, 604. Inconvenience might possibly arise in some cases, from not quashing the rate itself. As suppose an order of sessions affirms a rate; if the order of sessions is quashed only, the rate seems to stand good. But if any mischief were likely to ensue from the present practice, perhaps the court of King's Bench would remit the order back to the sessions, and direct them to enter continuances, and quash therate there.
the shape of a rule (1), and entered as such in the rule
If the Judges do not come to a decision upon the case within the term, the rule stands enlarged until the ensuing one; and it has been made a proviso in such an adjournment that the costs of maintaining the pauper should attend the event of the cause. (3)
The court, when a case has been disposed of, or struck When reout of the paper, from evident circumstances of mistake, stored. will sometimes permit it to be restored (4), or mentioned again (5) during the same term.
But where it was moved to have an alteration made in their judgment the term ensuing that in which it was given, they have denied the motion as being too
II. Of the costs.
Of the costs.
If the party who removes the order succeeds in obtaining the judgment of the court, he is not entitled to costs; but if his rule be discharged, he must pay them as taxed by the master of the crown office. (7) For 5 Geo. II. c. 18. enacts, “that if the order or judgment shall be confirmed Attachment
for. by the court, the person entitled to the costs, for the re
(1) See the form Rex v. St. Peter's in Worcestershire, Burr. S.C. 27. Rex v. Moor Critchell, 2 East, 222.
(2) See Burr. S. C. 595. and the preface by Sir James Burrow to his S. C.
(3) Overnorton v. Salford, 1 Black. Rep. 436.
(7) See Rex v. Dore, And. 252. A conviction for deer-stealing re. moved under 3 Will. & Mary, c. 10. the words of which are, “ full costs and damages. Probyn J., said, the bill ought to be taxed as between attorney and client," and the amount of costs is not confined to the sum mentioned in the recognizance.
covery thereof, within ten days (1) after demand made, upon oath of such demand, and refusal of payment, shall have an attachment granted for the contempt, and the recognizance not to be discharged till the costs are paid, and the order complied with."
No costs when But if the certiorari is superseded quia improvide emanacertiorari quashed.
vit, the party suing it out is not liable to costs, for he ought
not to be made liable for an expence occasioned by an imOr prosecutor provident act of the court. (2) Also, if the party succeeds succeeds in part.
in quashing the orders in part, he is not liable to costs: as, where a man and his wife and daughter were removed by two justices, and the order was confirmed at sessions. These orders, being removed into the king's bench, were quashed as to the daughter, and confirmed as to the man and his wife. The court held, that the parish who brought the certiorari was unjustly burthened with the daughter, and had no other remedy but to come to the superior court; and the parliament never intended to punish them (i. e. with paying costs) for taking a legal remedy against a gravamen. (3)
But otherwise, But the court distinguished it from the following if part quashed case, where the court affirmed an order of sessions as to for informality.
the point of the appeal, but quashed a reservation in the same order as to costs, in case of a new removal ; and it was determined that the prosecutor of the certiorari should pay costs. (4) - Per curiam. That is a very different case, for the party could not be affected by the part
(1) This must be understood to mean at the expiration of,” i, e. that the ten days must elapse before the attachment can be granted; otherwise, instead of the indulgence of ten days, supposed to be offered by the legislature, the party would be liable to an attachment, immediately after a demand and refusal. This point has been so held, or similar words, in the stat. 5 & 6 W. & M. ch. 11. sect. 3. Rex c. Ire land, 3 Term Rep. 512.
(2) Rex v. Wakefield, Say. Law of Costs, 306.
of the order which was quashed, till the sessions had made an actual order about the costs; and the bringing it up for the purpose of quashing that part was unnecessary, and consequently vexatious, which is the true rule to go by. (1)
If an order is sent down to the sessions to be re-stated, Or sent down. and is returned back amended, the party by whom it was originally removed is not liable to costs, if he abandons the prosecution forthwith. (2) But if he disputes the amended order, instructing counsel, and taking the chance of the judgment of the court in his favour, when it comes up a second time, he must pay costs.(3)
Where the party, entering into the recognizance, suc- Recognizance ceeds in making his rule absolute, the recognizance is dis
charged. charged as a matter of course. (4) But if his rule is discharged, he cannot apply for the discharge of his recognizance until he has paid the costs (5), and, according to the words of the statute, complied with the order.
The court has no power to allow the expence incurred No power to by maintaining the pauper between the time of giving the award mainjudgment in the court of quarter sessions, and that in the king's bench, and they have refused to remit the original order of removal to the sessions for the purpose of enabling them by an exercise of jurisdiction in quashing it, to give the appellant parish the costs of maintaining the pauper during that period under 9 Geo. I. c.7. s. 9. (6)
(1) Rex v. Madley, ante, 622. (3).
(2) Rex v. Hitcham, Burr. S.C. 504. Rex v. Bray, ib. 687. Rex v. Edgeworth, 4 Term Rep. 218.
(3) Rex v. Edgeworth, supra, (2). (4) Rex o. Bray, Burr. S. C. 687. (5) Rex v. Edgeworth, supra, (2),
(6) See Rex v. Moor Critchell, ante, 621. (1), and the point was directly ruled in the following case.
By an order dated 2d Dec. 1812, two justices removed the pauper, his wife, and four children, from Monckton Deverell in the county of
Wilts, to West Cranmore in the county of Somerset. Against this or der, an appeal was entered at the Epiphany sessions holden for Wilts, and adjourned to the ensuing Easter sessions, when the order was confirmed, subject to the opinion of the court of King's Bench upon a case reserved. The case came on to be argued in Trinity term, but was directed by the court to stand over to the Michaelmas term following, when the order of sessions and the original order of two justices were quashed. Casberd on the part of the parish of West Cranmore now applied for a rule to shew cause why the order of this court should not be altered by omitting such part thereof as related to the quashing of the original order of the two justices, and that the same should only order that the order of sessions made in confirmation of the original order of the two justices be quashed; and that the justices below might be ordered to enter continuances to the sessions next ensuing the decision upon that rule, and then and there to quash the said original order of two justices, and to allow the respondents their costs pursuant to 9 Geo.l. c.7. s.9. The object of that application, he stated, was to supply a defect in the jurisdiction of the court of King's Bench, which had no power to allow costs to the respondents, who by an unjust removal had been put to a considerable expence in the maintenance of six persons for a period amounting nearly to a year; that by rescinding a part of the order of that court and remitting the original order of two justices to the sessions, the court below would not only by quashing the original order be enabled, but by the provisions of the stat. before mentioned, be compelled by granting the costs of maintenance, to do justice between the parties; and that the obstacle which presented itself in Rex e. Moor Critchell, 2 East, 222. did not exist in this case, since the application being made in the same term as that in which the decision upon the merits took place, the court were not called upon to review the judgment of a past term.
Lord Ellenborough C.J. I think that there is the same objection to the present application as existed in the case referred to; for as the decision upon the rules, if granted, cannot take place till the next term, we shall then be equally called upon to revise a judgment of an antecedent term.
Le Blanc J. The form of the rule of this court, quashing the original order of two justices, as well as the order of sessions, I take to have been the regular established form, from the earliest times. To grant therefore the rule, which is now applied for, would be a departure from the practice which has hitherto prevailed. Bayley and Dampier justices, acc.
Rule refused. Rex v. West Cranmore, B. R. Mich. 54 Geo. III. ex relat. Mr. Casberd, but that it may under some circumstances be made a condition in the rule. See Overnorton v. Salford, ante, 621.(3).