The reason for the practice of respondents in general beginning (on the merits), is put by Lord Kenyon, who draws the distinction between appeals at sessions and other appeals, thus (ƒ); “In writs of error and appeals to the House of Lords, where each party is in possession of all the evidence on both sides, the party who impeaches the decision below always begins; but in a case of this kind (an appeal against a poorrate), where it is an ex parte proceeding, and where the appeal comes on to be heard naked and destitute of all evidence before the court, those who have done the act, viz. the respondents, ought to establish the propriety of it by evidence” (ƒ). Where a "further appeal" was given from the decision of an appeal by borough sessions to sessions for the county, the latter court of appeal (as in new trials and writs of error) looks only to the original proceedings; accordingly an appellant to the latter tribunal cannot add any grounds of appeal other than those stated in his notice of appeal to the town sessions, though he may adduce fresh evidence (g). However, where, by the practice of the sessions, the appellant was bound to begin, even in an appeal against a poor-rate, and the appeal was dismissed for the appellant's refusal to begin, the court above refused to interfere (h). Where objections of form are raised to convictions for matter apparent on the face of them, or it is contended that the examinations on which the order of removal appealed against is founded, are insufficient in point of law to give the removing magistrates jurisdiction to make the order, the appellant's counsel begins by stating all of them in one address, so that they may be answered by the opposite counsel, and decided on by the bench in like manner (i). If no such objections are taken, or if they are overruled, the respondent opens his case in support of the conviction on the merits as above. Witnesses thus called, are of course subject to cross-examination by the appellant's counsel. The particular course of trying appeals against poor-rates, orders of removal, &c., is treated more at large under those heads. Quashing Order, Conviction, &c. at Sessions for Non-appearance of v. Jefferys. By a malt act, 48 G. III. c. 74, s. 15, no other witnesses besides those examined by the convicting justices, are to be re-examined at the sessions on appeals; and see on the excise acts, Breedon v. Gill, 1 Ld. Raym. 219. See Index, tit. Conviction (course of proceedings in court on appeal.) (f) R. v. Newbury (Inhab.) 4 T. R. 476. See R. v. Knill, 12 East, 50; and post, Chap. X. s. 5. (g) R. v. Suffolk (Justices), 1 B. & Ald. 640. See per Holroyd, J., id. 646, and post, Chap. XI. s. 3. (h) R. v. Suffolk (Justices), 6 M. & S. 57. See post, p. 657. (i) 1 Burn's J., 166, 29th edit. Respondent.]—If the respondents do not appear at the sessions, the appellants will not be allowed to move to quash the order, or conviction, &c. appealed against, till they have first proved service of the notice of appeal; unless the respondents consent by motion to the court that the order, &c. may be quashed. Opening Case for Appellants.]—When the respondents' case is closed, the leading counsel for the appellants addresses the court; he either relies on the insufficiency of the case proved, or calls witnesses to refute it, (without being limited to those called on any former hearing, ante, p. 642), 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 respondent replies. This course exactly resembles that pursued on trials at nisi prius, and for misdemeanours; but at some sessions there is this variation from it,-that where two counsel are engaged for one party, and witnesses are called for him, the junior has the privilege of summing up the evidence given for his client at its conclusion. But in no case in which his leader has not called witnesses, is he thus enabled to make a second speech on the case of his adversary. On all objections and collateral points of law which may arise, the court may hear all the counsel on each side, and the leading counsel in reply. But it is not always necessary to do so, or to hear the argument to its end; as the court may call at once on the counsel against whom their opinion inclines, and if their opinion is not shaken by his arguments, may at once decide. In all cases, where evidence is called on both sides, the counsel who opened, whether for appellant or respondent, has the general reply. The rules of evidence and of examination are exactly the same in cases of appeal, as in the trial of criminal prosecutions, and are decided by the court in the same manner. Quarter Sessions cannot delegate their Judicial Authority.]—The principle that judicial power cannot be delegated by those to whom it is entrusted (k), applies to the jurisdiction of a court of quarter sessions, which cannot in general delegate its authority to a third party as referee to decide an appeal for it (1). However, by consent of the parties or their attornies, the sessions may hand over the consideration of the matter in dispute to third persons, or to a committee of their own body in (*) See Bac. Abr. tit. Offices (A), and Watson on Arbitration. (1) R. v. Townsend, 16 Vin. Abr. 417; 2 Nolan, 4th ed. 468; R. v. Harding, 2 Salk. 477. order to report to them; and may adopt the report and make an order accordingly without further exercising their own judgment (m). An order of sessions, awarding such costs as should be adjudged reasonable by the clerk of the peace, or other persons named, e. g. by two attornies, is bad (n); for though the sessions may obtain the opinion of third persons, and, if they think fit, may adopt it, they must themselves fix in their order to be made during the same sessions (o), what sum either party shall pay for costs (p). An order defective in this particular, viz. in awarding costs of the appeal to be taxed by the clerk of the peace, will be quashed as to that part only (q). Again, where the subject-matter is a public trust reposed in the justices, e. g. building or repairing a county bridge, so that no individuals are parties, they may of their own motion refer it to a committee of their own body, and afterwards adopt their report: for it may be proper to acquire information out of the sessions (r). Even where the sessions reserve a special case for the opinion of judges of assize, or the court of queen's bench, they must first themselves adjudicate by their own act on the appeal before them, by quashing or confirming the order, &c. appealed against (s), subject to the opinion of the court above. (m) R. v. Northampton (Justices), Cald. Sett. C. 30; R. v. Natland, Burr. Sett. Cas. 793; (cited 5 Tyr. R. 1056; 2 C. M. & R. 377, S. C.;) R. v. Harding, 2 Salk. 477. (n) R. v. St. Mary's, Nottingham, 13 East, 57, note; R. v. Skinn, East, T. 15 G. II. MSS.; 1 Bott. pl. 527, 6th ed.; cited in R. v. Sweet, 9 East, 27; 2 Nolan, 574, 4th ed. (0) Reg. v. Long, 1 G. & D. 367; 1 Q. B. 740. No difference exists between county and borough sessions, quoad hoc, S. C. (p) Holloway, ex parte, 1 D. P. C. 26, recognized in Selwood v. Mount and another, 1 Q. B. 735. An order of sessions under the highway act 5 & 6 W. IV. c. 50, s. 90, directed, inter alia, that respondent should pay appellant "the costs by him incurred in prosecuting the said appeal." After the sessions the costs were taxed at 1127. by the deputy clerk of the peace. Respondent refused to pay or to obey a summons issued on sect. 101, and being convicted on sect. 103, his goods were seized for the costs. He brought trespass and recovered damages. Held that the order was bad for awarding costs generally in the words of the act, without specifying the amount. Rule for new trial discharged. Selwood v. Mount and another, 1 Q. B. 726; 9 C. & P. 75, S. C. See Reg. v. Clark, 13 L. J. (M. C.) 91, acc. in principle. A decision of Coleridge, J., (sitting alone), is contra, Reg. v. Westmoreland (Justices), 12 L. J. (M. C.) 113. (g) R. v. Skinn, ante, note (n), and order of sessions quashed in part, R. v. Maulden (Inh.), 8 B. & C. 78; and R. v. Wilts (Justices), 12 Ad. & E. 793; post, tit. Bastardy. (r) R. v. Glamorganshire (Justices), 5 T. R. 279. (8) Anon. Salk. 486; cited R. v. Reading, Cas. t. Hardw. 81, ante, Ch. IX. s. 4; R. v. Natland, Burr. Sett. Cas. 793; cited 5 Tyr. 1056; 2 C. M. & R. 377. As to equal division of opinion, see ante, p. 74, and post, p. 654. Order of removal quashed on appeal. -Conditional reference to the judge of assize for his opinion without entering any continuance or adjournment, so as to reserve the determination to themselves after knowing his opinion. Held Special Entry where Order of Removal is Quashed on Grounds merely Formal.]—If an order is quashed generally, the entry should be, "order quashed," without more (s). But where on appeal against an order of justices for removing a pauper, the sessions quash (t) the order, not on any merits, but for some defect in matter of mere form, e. g. because at the time of making it, the pauper was either irremoveable (u), or not actually bad, for the appeal was thus discontinued, R. v. Hedingham Sible, Burr. Sett. Ca. 112; but see R. v. Sussex, 2 Bott, 6th edit. pl. 1002; post, Chap. XIII. sect. 2. In R. v. Hedingham Sible, an order of sessions made on appeal against an order of filiation upon the defendant, set forth the particular circumstances, and charged the defendant on the oath of a feme covert with getting a bastard on her; then, without adjudicating on the matter, adjourned it to take the advice of the judges of assize. They declined to give their opinion on it; and the sessions by a second order resumed the consideration of the appeal, and adjudged the defendant to be father of the child, but without entering any adjournment on the face of the first order. Lord Hardwicke, C. J., "Where an appeal is lodged in the sessions, it is necessary that they make a direct and final judgment (Salk. 486), and they cannot refer it to the judges of assize for their judgment (i. e. without determining it one way or other), R. v. Willey, K. B. Mich. 8 G. II. And, therefore, had the matter rested upon the first order, it would undoubtedly have been bad; but it cannot be doubted but that they may continue over the determination on the appeal by a proper adjournment, either to take the advice of the judges, or for any other reason. Therefore the matter rests upon this-that there is upon the first order a reference to the judges of assize for their advice, and no formal adjournment after it. It does not seem that there ever was any determination in this court, that it is necessary for the justices, in their quarter sessions, in the execution of any jurisdiction given by statute, to make formal and regular continuances as the courts above do. It must indeed be agreed, that upon indictments, where they proceed as a court of record at common law, they must make regular continuances. But it seems that upon orders no such formal adjournment is necessary; and the matter sufficiently imports that there was in fact an adjournment in the present case, by referring to the judges for their advice when they should come to the circuit." As to quashing the order of justices as well as the order of sessions for defect on the face of the latter, and vice versa :— "Then," continued Lord Hardwicke, "the question will arise, whether, the last orders being adjudged bad upon the merits, the first order can be abstracted from them and made good. It has always been as a rule in this case, that where there is a general order of two justices, good upon the face of it, and the party appeals from it to the sessions, and they make an order specially stating the case as it appeared upon the evidence before them, the court will take the special case in this last order to be the foundation upon which the first order by two justices was made; and, therefore, if the evidence set out upon the last order is not sufficient to maintain their judgment thereon, the court will not only quash the last, but the first order likewise. "It has been said, that if the orders of the sessions should be bad upon any account, the court will not take notice of anything appearing upon them; but though this is the rule of pleading, yet it does not hold in orders; for in orders of settlement, where, on appeal from two justices, the sessions state the case specially, and conclude with quashing the order of the two justices, this court will sometimes make use of the facts appearing upon the last order to quash it, and consequently to affirm the order of the two justices." (8) Quashed on the merits is improper, 3 Q. B. 405, Patteson, J. (t) If they confirm the order, there seems no place for a special entry, see post. (u) See instance, Osgathorp v. Diseworth, post. As to this being merits, see post, p. 649. chargeable (*), or had not been resident for forty days (y); they should not quash it generally, but may and ought (z) to direct the clerk of the peace to make a special entry in his minutes of their proceedings that the order appealed against is "quashed for form only" (a). For though after an entry of "order quashed" generally, the respondents may remove again, and on a second appeal show that the former decision proceeded on a ground foreign to the merits (6); the additional expense of proving it by witnesses is one to which they should not be subjected, in order to obtain a hearing on those merits (b), particularly at the risk of the sessions holding their former order conclusive; which, however mistaken or unjust, would perhaps be supported in the queen's bench, even if a case should be granted (c). As the judgment of the court of quarter sessions is in general conclusive, unless they think fit to grant a case or make a special entry, the question becomes important, What is a decision on the merits? That word conveys no clear notion, is "unfortunate, and likely to mislead" (d). Coleridge, J. has affirmed a decision on the merits to be where the decision is made after receiving all that can be legitimately offered; which, it seems, may be, without any witnesses being called or evidence given on the unsuccessful side. If the sessions reject only what they ought (x) Reg. v. Perranzabulo, 3 Q. B. 400. (y) 3 Q. B. 405; Reg. v. Perranzabulo, which see post, p. 649; see R. v. Denham, 1 M. & S. 221, R. v. Rotherham, 2 Ad. & E. 557. (z) Reg. v. Brighthelmstone (Directors of Poor), 3 Q. B. 342, cited id. 369, 390. (a) 3 Q. B. R. 376. This is a preferable form of entry to "quashed, but not on the merits," see 3 Q. B. 405. In Reg. v. Church Knowle, (Inh.) 7 Ad. & E. 479, Coleridge, J., said, "Quashing an order for want of form is different from quashing it merely because the merits are not gone into. If the order is discharged because the respondents do not choose to enter into their case, that is a quashing on the merits ;" and see post, p. 648, note (e). The entry may be, "Order quashed, the merits not being inquired into, Reg. v. Ynisawdra (Inh.), Jurist of 1842, p. 1058; 4 Burn's J., 29th ed. 1185. See Reg.v.All Saints, Worcester, Mich. 1842. Or it may be "quashed for informality," R. v. Cottingham (Inh.), 2 Ad. & E. 250. Or "order quashed for want of a proper adjudication of the last legal settlement of the pauper, which was apparent on the face of it," Reg. v. St. Andrew's, Holborn, 6 T. R. 613. Such entries will be held to mean 66 quashed, but not on the merits," so as to prevent the order of sessions from being conclusive on other parties. Such orders of sessions, if removed on error, will not be quashed as defective on the faces, no special case being sent up." R. v. Cottingham (Inh.), 2 Ad. & E. 250. (b) See per Patteson, J., Reg. v. Charlbury and Walcott, 3 Q. B. 383; 13 L. J. (M. C.) 19, S. C. R. v. Wick, St. Lawrence, 5 B. & Adol. 539; 13 L. J. (M. C.) 38; (remarked on, post, Ch. XI. s. 13); Reg. v. Perranzabulo, (Inh.) 3 Q. B. 400; 13 L. J. (M. C.) 47; also Reg. v. Flintshire (Justices), 13 L. J. (M. C.) 163; R. v. Wheelock, 5 B. & Cr. 571, explained by Patteson, J., 5 B. & Adol. 539; and 3 Q. B. 369, 370, 384. (c) See Reg. v. Charlbury and Walcott. Ex parte Ackworth (Overseers), 13 L. J. (M. C.) 38. See, however, a more satisfactory decision, Reg. v. Perranzabulo (Inh.), 3 Q. B. 400. (d) Patteson, J., 13 L. J. (M. C.) 39; also 3 Q. B. 381, 399. |