In what order heard.

Proceedings on hearing.

zance of a second on the same subject. The appellant might indeed have stopped his first appeal from being heard at all, when he discovered his deficiency of proof, and have lodged a second within the limited time, giving fresh notices, and being prepared with proof of entering into recognizance; but having proceeded to judgment, he is concluded." (k)

So, on a conviction for deer stealing, under 16 Geo. 3. c. 30. which requires an appellant to enter into recognizance and to give six days' notice of intention, on doing both which he may appeal to next session, after expiration of twenty days from the time of the conviction. On the appeal there was no proof of the six days' notice having been given. The justices doubted, and respited the hearing till the following session, when, having taken advice on the subject, they admitted the objection, and dismissed the appeal. On a motion for a mandamus to compel them to hear it, Lord Ellenborough, C. J. said, "the entering into recognizance, and the giving six days' notice, were both made precedent conditions, and if either has not been complied with, the appeal could not be duly entered, and if so, could not be legally adjourned." To which Le Blanc, J. added, "that it would be nugatory for the Court of King's Bench to order continuances of that which the parties had no right originally to bring before the session in the first instance, for want of a material condition being complied with, which gave that right." (/)

§ 4. OF THE TRIAL AND

APPEALS.

DETERMINATION OF

The appeals are usually called on for hearing in the order in which they stand in the paper of the clerk of the peace, which should be that in which they are entered. This, however, is mere matter of arrangement in the discretion of the Court, who may take the appeals in any order which the general convenience of the public, or particular circumstances, may seem to them to dictate.

After the order or conviction appealed against, which should always be returned to the sessions, has been read, the notice of appeal is proved. If the notice be insufficient, the Court may either adjourn the appeal, on payment of such costs as they may think reasonable, or dismiss it. If it be sufficient, the party sustaining the order begins to open his case, and to adduce his evidence

(k) The King v. the Justices of Yorkshire, W. R. 3 T. R. 776. (1) The King v. the Justices of Oxfordshire, 1 M. and S. 442.

in support of it. The leading counsel for the respondents
opens his case, and calls his witnesses, as in a prosecu-
tion, subjecting them in like manner, to the cross-exami-
nation of his adversary. When his case is closed, the
leading counsel for the appellant addresses the Court;
and either relies on the insufficiency of the case proved,
or calls witnesses to refute it, or sets up a new case in
answer to it; if he calls no witnesses, the discussion
closes with his address; if he calls witnesses, the leading
counsel for the respondents replies. This course is exactly
similar to that pursued on trials at Nisi Prius, and trials
for misdemeanors; but in some sessions there is this
variation from it, that where there are two counsel en-
gaged for one party, and witnesses are called for that
party, the junior has the privilege of summing up the
evidence given for his clients at its conclusion. "But the
junior has never this right unless when his leader calls wit-
nesses, so as to be entitled to make a second speech on
the case of his adversary. On all collateral points of law
which may arise, the Court hear as many counsel as the
parties think fit to employ.
But it is not always neces-
sary to hear the argument to its end; as the Court may
call at once on the counsel against whom their opinion
inclines, and if that opinion is not shaken by their argu-
ments, may at once decide.

The rules of evidence and of examination are exactly the same in cases of appeal as in the trial of criminal prosecutions.

The justices are, in all cases of appeal to them, the Judgment on absolute judges of the facts, and they may not, if they appeals. desire it, remit any question of fact to a superior tribunal. They are also, if they think fit, the absolute judges of the law; for they cannot, under any circumstances, be required to take the opinion of the judges of assize, or of the Court of King's Bench; (m) but they may, where the certiorari is not taken away by express words, remit a case on proved or admitted facts, to the Court of King's Bench. (n) Where the certiorari is taken away, the reservation of a case can be of no avail, as the Court above can take no cognizance of the proceedings.

The Court of Quarter Sessions cannot, by virtue of their authority, delegate the decision of an appeal to another. But where the matters in dispute have been referred by consent of parties, the Court will not allow one of these parties afterwards to disturb the decision.

(m) The King v. Oulton, Burr. Sep. Carr. 64.
(n) As to the Special Case, see post, c. 13. s. 2.

When the proceedings are closed, the chairman collects the opinion of the justices, and pronounces that of the majority for confirming or quashing the order, conviction, or rate which is the subject of the appeal. In giving this judgment, the justices who made the order, (0) or who may be rated inhabitants of either of the litigant parishes, (p) have no right to vote. The chairman has the same right to vote as any other justice present; but he has no casting or double vote to give in case the numbers, including his own vote, shall be equal. In case of equal division, it seems that the proper course is for the Court to order the appeal to stand adjourned till the next sessions, and it has been said that it is the duty of the clerk of the peace so to enter it. (g) But this doctrine has been disputed in a recent case of the King v. the Justices of Monmouthshire, (r) in which it was contended that as the respondents in a case of removal are bound to support the order, they fail to do so when the Court does not decide with them, and consequently the order must, on an equal divison, be quashed. On this point the Court gave no opinion; and probably would not have disturbed the law as generally understood and acted on, in consequence of the ingenious reasonings of the counsel, but the Court clearly held that the bench, at sessions, having, on an equal division, given judgment that the order should be quashed, that judgment so given, even if erroneous, could not be reviewed by the Court of King's Bench, as no case had been reserved for their opinion.

The Court of Quarter Sessions may alter their own judgments during the continuance of the session, (s) but they cannot do so afterwards; and, if they desire to postpone their judgment, they must continue the session by adjournment. Even when the judgment has been erroneously pronounced by a mistake of the chairman, the justices cannot rectify it afterwards, even with the assent of the whole number who were present; nor can the Court of King's Bench assist them. (t) When judgment on an appeal

Case of Fixham Tithing, 2 Salk. 407.

The King v. Yarpole, 4 T. R. 71.

See the King v. the Justices of Leicestershire, 1 M. and S. 442. 4 B. and C. 844.

St. Andrew, Holborn, v. St. Clement Danes, 2 Salk. 495. (A clear illustration of this principle arose out of the decision of an appeal against an order of removal at the Berks Easter Sessions, 1828. The majority of the justices voted for confirming the order, in which opinion the chairman concurred; but, in pronouncing the judgment of the Court, he by mistake delivered it thus:" The order is quashed," which was entered

against an order of removal is quashed on some formal ground, the Court may direct a special entry, in order to prevent the judgment from being conclusive on a subsequent appeal. But the Court of King's Bench will not compel the justices, under any circumstances, to state in the order the grounds of their decision. (u)

The particular consideration of costs will be found in the 13th chapter of this work. Here, it may be right to observe that the power to give costs is not incident to the authority of the sessions, nor does it exist at common law; and, therefore, costs can never be given unless by the words of the statute under which the justices are acting. Whenever the sessions grant costs, they must ascertain the costs by their order; for they have no power to grant costs generally, like the courts at Westminster, to be afterwards taxed by the proper officer. For the assistance of their own judgment, they may direct the clerk of the peace to ascertain and report to them the items of expenditure, which may be the grounds of their decision; but they must themselves determine the sum to be paid. Such order, when made, cannot be enforced by attachment; but the party disobeying it, after it has been personally served on him, will be liable to be indicted for a misdemeanor, and punished for his contempt by imprisonment and fine.

accordingly by the clerk of the peace. The mistake, which was in the mere pronouncing of the judgment, was not discovered till a subsequent part of the same day, when the sessions had regularly closed. Mr. Shepherd afterwards moved the Court of K. B., on the affidavit of the justices themselves, for a mandamus to rehear the appeal, or to correct the judgment by the chairman's notes; but the Court of King's Bench held, that they had no power to interfere, and the judgment remained as entered.

(u) South Cadbury v. Bradden, 2 Salk. 607.

436

How given.

CHAPTER X.

OF APPEALS AGAINST POOR RATES; THE APPOINT-
MENT OF OVERSEERS; AND OVERSEERS' ACCOUNTS.

§ 1. Of the Right of Appeal against Poor Rates.

2. Of the Conditions of Appeal against Poor Rates.

– 3. Of the Grounds of Appeal against Poor Rates, and herein 1. Of the Purposes for which the Rate must be made.

2. Of the Parties liable to be Assessed, and the proportion of Assessment.

3. Of the Form in which Rates must be made.

4. Of the Trial of Appeals against Poor Rates, and the Judgment of the Session thereon.

5. Of Appeals against the Appointment of Overseers.

– 6. Of Appeals against the Accounts of Overseers and Church

wardens.

§ 1. OF THE RIGHT OF APPEAL AGAINST POOR RÁTES.

THE right of appealing against poor rates was given originally by 43 Eliz. c. 2. s. 6. which enables any persons "who shall find themselves grieved with any cess or tax, or other act done by the churchwardens and other persons, or by the justices allowing the rate," to appeal generally to the Quarter Sessions. This provision was thought to confine the remedy to persons complaining of pecuniary grievance; and, therefore, was supposed not to apply to persons who were themselves improperly omitted, with a view to deprive them of their elective franchise in boroughs where being rated is a part of the qualification of a voter; or to persons complaining that others, not bona fide rateable, were introduced on the rates, to give that franchise. This inconvenience was mainly felt in the elections for Westminster, and, consequently, more extensive words were introduced into 17 Ĝeo. 2. c. 38. s. 4. with a view to this particular evil. That enactment gives the right of appeal to any person "who shail find himself aggrieved by any rate or assessment made for the relief of the poor; or shall have any material objection to any person or persons being put on or left out of such rate or assessment; or to the sum charged on any person or persons therein; or shall have any material objection to such account (i. e. the overseers' accounts) as aforesaid, or any part thereof; or shall find himself aggrieved by any neglect,