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Where no

case.

B. R. only examines into

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 what on the face of the order of sessions. A poor appears rate was made in October, 1789, and allowed in the Noon the order. vember following; against which the defendant appealed

what appears

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 on 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.

(2) Rex v. Wavell and others, Doug. 116. Ante, Vol. I. 68.

(3) So in the report.

(4) Rex v. Atkins, 4 Term Rep. 12. 1 Bott, 284. Pl. 276.

stated.

3. But the most usual way in which these orders come When case 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 must 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)

B.R. will not

case which has

assize.

Where a case is agreed at the sessions to be drawn up for the opinion of the judge of assize, and he has given it decide upon a after hearing counsel, the court will not, afterwards, enter been before into consideration of the matter, if the orders, containing the judges of 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)

ments until his

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 adjournappeal 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.

(4) Rex v. Hedingham, Sible, Burr. S. C. 112. Ante, 566. (1).

Of rectifying imperfect state of a case.

1 By quashing the order.

2. Fact insert

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:

1st, The orders may be quashed by consent of counsel 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)

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 the rule by

counsel.

3d, A fact may be admitted by counsel at the bar duradmission of ing the argument. But, in order that the opinion of the 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, 1st, 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 s. 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 . Warblington, 1 Term Rep. 241.

(4) Rex v. Nether Heyford, Burr. S. C. 479.

(5) Rex v. Friendsbury, Burr, S.C. 644. Rex v. Bray, ib. 682. Rex

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)

decided rule.

The court, however, does not seem to have laid down No very 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.

fact is imma

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. 350. Rex v. 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.

Not for de

one instance, an order of removal, and order of sessions confirming it, were quashed, because the case was imperfectly stated. (1)

Likewise, where sufficient facts are returned in the case, fect appearing the superior court will not send it down to be re-stated,

solely by

affidavit.

Nor in cases upon rates.

upon a suggestion, supported by affidavit, that the statement 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. 252. Rex v. Dursley, 6 Term Rep. 53.

1

(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. (4) Rex v. Cunningham et al., 5 East, 478.; and Liverpool Company.

(5) Rex v. Aberavon, 5 East, 453. ante, 532.

Pl. 270..

and see Rex v Leeds

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