by the clerk of the rules on the crown side of the court of queen's bench, in the crown paper, for argument. Where, however, the original order of removal was confirmed by the sessions subject to a case, but the counsel disagreed as to its terms, and the chairman and justices did not settle it when referred to for that purpose, a mandamus issued commanding them to enter continuances and hear the appeal; for they had not decided the appeal, their order of confirmation being conditional, and no order at all if no case was returned (u). In the last case, though nearly two years elapsed between the granting the case and the application for a mandamus, the certiorari had been sued out within six months, as required by 13 G. II. c. 18, s. 5. But where an order of removal was confirmed at sessions, subject to a special case, which remained unsettled for more than six months after it was granted, and no certiorari had been sued out in time, the mandamus to enter continuances and hear the appeal was refused; for the order had become absolute at the end of six months, as no certiorari had been sued out (v).

But where an appeal was dismissed below for a breach of the practice of the particular sessions, in not giving notice of trying a respited appeal, and a case was reserved, but the applicants for it did not bring it up, the court refused to grant a mandamus to enter continuances and hear it (w); and the like where it was clear that the proceeding could lead to no result, e. g. where the chairman, in consequence of his own opinion and that of the court on the facts, refused to sign any statement but one, which would have excluded the point of law relied on by the party demanding the case (r). Nor can the sessions be commanded to settle a special case reserved by them (y).

Again, where, on appeal against an order of removal, the sessions, without going into the appeal, quashed the order, on the ground that the examinations sent to the appellants did not state the

formerly a motion made in court. Thus, in R. v. Sawbridgworth, 1 Barnard. 297, a rule to show cause was refused; and see per Buller, J., 2 T. R. 80. In Mich. 1840, Coleridge, J., in the Q. B. practice court, refused to hear a motion for a rule nisi for a certiorari to remove a special case from sessions, saying, it must be issued at the party's peril; but see R. v. Middlesex (Justices), 8 D. & R. 117, and R. v. Terrett, 2 T. R. 734.

(u) R. v. Suffolk (Justices), 1 D. P. C. 163, and MSS. case there cited and relied on. See 1 D. P. C. 484.

pauper

to

be chargeable at the time of making the order, but afterwards granted a case to the respondents on the point of construction of 4 & 5 W. IV. c. 76, but the case was not brought up, the court refused to hear the point discussed, on application by the respondents for a mandamus to enter continuances and hear the appeal (z), and they discharged the rule. For though the respondents might have forborne to take a case, and might then have applied for a mandamus, they could not have both remedies at once (a). The same decision was given where the sessions dismissed an appeal unheard, and confirmed the order of removal, because the notice of appeal had been served on one only of several parish officers, and at the instance of the appellants, granted a case, which, however, was not brought up (b).

When the Finding of the Sessions on Facts is conclusive.]—Where it was made a question of fact at a sessions whether there was a hiring and service for a year in the appellant parish, and the sessions confirmed the order of removal, thus virtually holding the affirmative, but granted a case for the opinion of the court whether a settlement was thus gained, which case stated the evidence as to that fact; the court held that this amounted to a finding by the sessions of a fact, the decision of which belonged to them, viz. that there was a hiring and service for a year in the parish to which the removal had taken place, and that such finding ought not to be disturbed, if there were any premises to warrant it (c). But where an order of removal was confirmed, and the case set out the evidence upon which a yearly hiring in the respondent parish was sought to be supported, without any finding on the fact of the yearly hiring, the case was sent back to be re-stated (d).

It seems that the court above will not be concluded by the finding of sessions as stated in a special case, where they see that that finding is perfectly contradictory to the facts proved and set out in the case as constituting the ground of the decision; e. g. where sessions find the

(z) R. v. Suffolk (Justices), 6 Ad. & E. 109; 1 N. & P. 306, S. C. The respondent's only remedy seems to be by a new removal and second appeal.

(a) Per Lord Denman, ibid.

(b) R. v. Northamptonshire (Justices), 6 Ad. & E. 111, n. Rule for mandamus to enter, &c. and to hear the appeal obtained by appellants, was discharged.

(c) R. v. St. Andrew the Great, Cambridge, 8 B. & C. 664; S. P. in R. v. Rosliston, id. 668; R. v. Edwinstowe,

id. 671; R. v. St. Martin's in Leicester, id. 674; R. v. Great Wishford, 4 Ad. & E. 216; R. v. Snape, 1 N. & P. 429. However, in R. v. Ardington, 1 Ad. & E. 260, (observed on arguendo, 3 Ad. & E. 162,) the court disregarded and reversed the decision of the sessions on the evidence, both being set out in the case; and held that they were wrong in implying a hiring in a third parish. See ante, p. 906.

(d) R. v. Road, 1 B. & Adol. 362.

fact of a coming to settle, and mistakenly refer it to the court with the facts on which their finding was grounded as a matter of law (e). In the last case, many instances are collected where the court above has interfered by examining and adjudging on matters of fact, if brought before it by special cases (ƒ) for their opinion, though the sessions had themselves decided on the facts subject to such opinion. So where the sessions have decided on the fact against or without evidence (g).

Sending back a Special Case to be Re-stated.]-Where the special case is manifestly insufficient as stated, e. g. if it contains evidence only, without finding facts (h), or omits circumstances material to the decision of the particular case, in order to raise a general question which would not otherwise arise (i), or without finding fraud, states facts which nearly demonstrate that the decision of the sessions proceeded on the ground of fraud (j), the court may, either by consent (4), or of their own authority, send it back to the sessions to be re-stated (?). Upon this the sessions must proceed de novo, as on a new trial, to re-hear the whole case (m); and can take no cognizance, except by consent, of any evidence previously given (n), unless the case is sent back only to ascertain some particular fact to which the proof may then be confined (o), or to explain some ambiguity of expression or omission of an inference, which can be supplied by the justices without hearing witnesses (p). But fresh evidence may in every case be given (q), and a new order made.

(e) R. v. Woolpit, 4 Ad. & E. 205; Coleridge, J., dissentiente, but see by same learned judge, 4 Ad. & E. 224, and id. 929.

(f) Ibid. and 3 Ad. & E. 162; 1 Ad. & E. 260; R. v. Field, 5 T. R. 587; as stated, 8 Ad. & E. 383, Reg. v. Lynn; and R. v. Snape, 6 Ad. & E. 278.

(g) Per Coleridge, J., R. v. Great Wishford, 4 Ad. & E. 224, and post, Chap. IX. sect. 4; but quære, see R. v. Carnarvon (Justices), and R. v. Cumberland (Justices). Ante.

(h) R. v. Road (Inh.), 1 B. & Adol. 362. Except where the conclusion ought to be the same as that arrived at by the sessions, R. v. Shebbeare, 1 East, 73. See last page.

(i) R. v. Francis Hill, Cowp. 613. (j) R. v. Llanfihangel Abercowin, 4 N. & M. 355.

(k) R. v. Nether Heyford, Burr. S. C. 479.

(1) R. v. Winwick, 8 T. R. 455; R. v. Road, 1 B. & Adol. 362. So even where no case was reserved, but a fact appeared doubtful on the original order of removal, R. v. Margam, 1T. R. 775; but not so if they admit improper evidence, R. v. Rawden, 2 Ad &. E. 256; 4 Nev. & Man. 97; ante.

(m) Ante, p. 655; R. v. Bromley, 6 T. R. 330; R. v. Bloxham, 1 Ad. & E. 386; 3 Nev. & M. 385; 2 Nolan, 610. (n) R. v. Page, 2 Bott, by Const,

5th ed. 743.

(0) R. v. Hitcham, Burr. S. C. 489. (p) R. v. Bray, Burr. S. C. 684. See next note.

(q) R. v. Hitcham, Burr. S. C. 489; and R. v. Bloxham, 1 Ad. & E. 386; 3 N. & M. 385, S. C. semb. superseding R. v. Bray, Burr. S. C. 682, quoad hoc only. See form of rule for sending case to be re-stated, id. 687. See 1 B. & Ald. 645, R. v. Suffolk (Justices).

However, no case will be sent back to be re-stated on a mere formal objection, or for containing an immaterial or irrelevant fact, if enough appears upon it to enable the court above to give judgment on the merits of the question submitted to them; particularly when the only possible result of sending back the case would be to produce delay and expense (r), or if the facts stated warrant the judgment, though the court below has drawn an inference which they do not warrant (s), or has rejected evidence improperly, which, if admitted, ought not to vary their conclusion (t); nor on an affidavit of a witness that the clerk of the peace did not state his evidence truly (u), or on affidavit that the case does not agree with the facts proved, if it purports to be signed by the chairman, though he does not recollect signing it (v) ; or that it does not state what the conversations were which took place between parties to a written agreement at the time of signing it, and which it alleges that the respondents proposed to give in evidence, if it distinctly states, as a question for the opinion of the court, whether the agreement was a contract of hiring (w).

Where a case respects a poor-rate, the order of sessions will not be remitted there, except for a defect on the face of the case (x); and where" iron" as well as coal mines were rated, yet the rate was confirmed generally at sessions, their order was quashed as wrong at all events, the court refusing to send it back (y), though the sessions only had that power to amend the rate (z). So where a rate was quashed at sessions, and it appeared in the king's bench that a large tract of land was not assessed therein, the order of sessions was confirmed (a); but where the sessions confirmed a rate, and the court above held certain burgesses to be improperly omitted, the order of sessions was sent back to have the rate amended by inserting them (b). Where necessary, special directions are inserted in the rule by which the order is sent down, commanding the sessions to inquire into and state particular facts (c).

(r) R. v. Minchinhampton, 3 Burr. 1310, on a rate; R. v. Middlezoy, 2 T. R. 41, on a settlement. See 2 Nolan, 4th ed. 607.

(8) R. v. Rickinghall Superior, 1 N. & M. 47.

(t) R. v. Nutley, Burr. S. C. 701. (u) R. v. Burgh-in-the-Marsh, Burr. S. C. 145; 2 Bott, by Const, 5th ed. 747; Thackham v. Trindon, 2 Salk. 489.

(v) R. v. Matlock, 5 B. & Adol. 883.

(w) R. v. Billinghay (Inh), 1 N. &

(y) R. v. Cunningham et al. 5 East, 478, Q. B.

(z) The Q. B. could not amend it, R. v. Milton, 3 B. & A. 120.

(a) R. v. Aberavon, 5 East, 453. (b) R. v. Watson, 5 East, 480. See R. v. Topham, 12 East, 546.

(c) R. v. Clifton-on-Dunsmore, Burr, S. C. 697; R. v. Margam, 1 T. R. 775 (orders of removal); R. v. Hogg, Cald. 266 (poor's rate).

A new case may, if defective, be again remitted to sessions for further inquiry (d). Other modes of dealing with an imperfectly stated case are collected by Mr. Nolan; e. g. quashing the orders by consent of counsel on terms (e); inserting a fact in the case under a rule obtained by consent to amend the order (ƒ); and admitting the fact by counsel during argument (g).

A re-hearing on the merits was allowed where the respondents had stood on a point of form at the sessions, and got the order of removal quashed there, the opinion of the court being afterwards adverse to them on the point of form (h).

Mr. Nolan observes, that no case seems ever to have been remitted to sessions to find the fact of fraud, however pregnant such a conclusion might be on the evidence stated (i).

The court of queen's bench will take no cognizance of a special case reserved on an indictment at sessions (j).

SECTION III.

OF THE REMOVAL OF PROCEEDINGS BY CERTIORARI.

HAVING noticed the methods by which the justices in session may voluntarily refer points of difficulty to be decided by a superior authority, we come to the compulsory process of certiorari; by means of which common law writ, parties may, under certain defined restrictions, remove the records of causes, as indictments, presentments, appeals, &c. cognizable by inferior jurisdictions, into a superior court at Westminster. All with which we have any concern in this work, are those matters which may be thus removed from a court of quarter sessions into that of the queen's bench.

(d) R. v. Bray, Burr. Sett. Cas. 682; R. v. Clifton-on-Dunsmore, supra, p. 911. (e) 2 Nol. 4th ed. 606; R. v. Himley, Burr. S. C. 115.

(f) R. v. Great Chart, Burr. S. C.

194.

(g) See R. v. Llandverras, Burr. S. C. 573; R. v. Warblington, 1 T. R. 241. The rule for quashing or confirming the orders must state the facts admitted, and that they were admitted by counsel. See form of rule, R. v. Llandverras.

(h) Reg. v. Arlecdon, 3 P. & D. 95, semb.overruling R. v. Honiton, Burr. S.

C. 680; and 2 Nolan, 617, 4th ed. (i) 2 Nol. 4th ed. 561, 564.

(j) R. v. Salop (Inh.), 13 East, 95. The proper course in cases of doubt as to the law on criminal trials, is to adjourn the sessions till advice can be taken on the matter. See post, Chap. XIII. sect. 6, and Index, tit. Pardon. There is no reason for the court above rejecting such a case any more than a case reserved on an indictment tried at assizes for both are ex gratiá, (15 East, 346, arguendo,) and such an assistance is more required by the sessions.