What Justices may Share in the Decision.]-When the proceedings are closed, the chairman collects the opinions 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. The justices who made the order (n), or who are rated inhabitants of either of the parishes litigating a "highway or parochial tax, levy, or rate," are disqualified from voting (o.)

Judgments of Quarter Sessions on Appeals Decisive, except Case is reserved.]—Justices are not bound to give any reason for their judgment (p), and their order confirming an order of removal on appeal is final, unless there be error in form (q). It may be stated as a general proposition, that the judgments of sessions on the merits of appeals, however imperfect, or arrived at on erroneous estimates of fact, and mistaken principles of law,—for instance, by the mistaken reception or rejection of evidence,-are, notwithstanding, conclusive, where evidence has been heard: so that no court has jurisdiction to review them, except the queen's bench, and then only on a case sent up to the sessions for its consideration (r). Thus, where a sessions dismissed an appeal in consequence of mistakenly rejecting a piece of evidence which they ought to have received, and did not grant a case, the court above refused to order them to re-hear the appeal (s). The same refusal took place where the appellants, having admitted a prima facie settlement in their parish, proceeded to give evidence of a subsequently acquired settlement in a third parish, and the sessions refused to hear evidence tendered by the respondents in contradiction on the ground that the counsel for the latter had prefaced the evidence he thus proposed to give, by observations on his adversary's case, which they treated as contrary to the practice of that session (t).

(n) Foxham (Tithing ca.), 2 Salk. 607. Order of sessions quashed because it concerned a justice named in the caption.

(0) R. v. Yarpole, 4 T. R. 71 (order of removal); 16 G. II. c. 18, s. 1 (poor's, highway, and other parish rates); and see R. v. Gudderidge, 4 D. & R. Mag. Cas. 35, appeal against overseers' accounts; Great Charte v. Kennington, Stra. 1173. See R. v. Usk, p. 660, n. (y).

(p) South Cadbury v. Braddon, Salk. 607; ante, p. 657.

(q) St. Andrew Holborn and St. Clement Danes, Salk. 494, 606, S. C.

(r) R. v. Yorkshire (Justices, W. R.), 5 B. & Adol. 1003; Pratt, ex parte, 7

Ad. & E. 27; 2 N. & P. 102, S. C..
R. v. Justices of·
1 Ch. R. 164; R.
v. Farrington, 4 D. & R. 735; 2 D. &
R. Mag. Cas. 365 ; R. v. Monmouthshire
(Justices), 7 D. & R. 334; 3 D. & R.
M. C. 410; 4 B. & C. 844; 8 B. & C.
137, S. C.; R. v. Kent (Justices), 9 B.
& C. 283; R. v. Cambridgeshire (Jus-
tices), 1 D. & R. 325; R. v. Denbigh-
shire (Justices), 1 B. & Adol. 616; Reg.
v. Cheshire (Justices), (M. 1838,) 1 P.
& D. 88; 8 Ad. & E. 398, S. C.

(s) R. v. Frieston (Inh.), 5 B. & Adol. 597; R. v. Cheshire (Justices), 8 Ad. & E. 400; 1 P. & D. 88, S. C.

(t) R. v. Carnarvon (Justices), 4 B.

But where a quarter sessions improperly dismissed an appeal on an unfounded objection of a nature preliminary to its being heard, viz. to their jurisdiction to entertain it at all, the court compelled them by a mandamus to hear it, even though a witness had been examined before the objection was taken (u).

Again, if it should appear on the face of the entry on record that no judgment was given, or that the justices were divided in opinion, and that no adjournment took place on either occasion, a mandamus would lie to compel the sessions to enter continuances for the purpose of actually deciding the appeal (v); though, had a wrong judgment been actually entered, the court above would not interfere, for want of jurisdiction in error to review it on affidavit of matter dehors the record (w).

Hardship of this State of the Law.]-The operation of this state of the law becomes daily more grievous. Subjects of importance are more and more referred by the legislature to the decision of quarter sessions on appeal; the remedy of the subject being generally confined to the chances incident to the present constitution of that tribunal, and the common law writ of certiorari being as commonly taken away (x). Questions involving interests larger in amount than two thirds of the actions tried at assizes, and raising equally nice points of evidence, construction of statutes, &c. are thus disposed of by a bench of magistrates, who may hinder any errors, into which they may fall, from being set right elsewhere. For while at nisi prius, in a cause of the smallest importance, the improper admission or rejection of evidence by the judge, or his misdirection in point of law, is the subject of a motion to the court above, which that learned person cannot, if he would, prevent; the sessions, by refusing a case, may conclude the party

& Ald. 86. But if, without any infraction of sessions practice having appeared, it had been shown as a bare fact that the sessions had heard one side, and had altogether refused to hear the other, it would have been the same as if the case had not been heard at all, and a mandamus would have issued. See per Holroyd, J., 4 B. & Ald. 88, S. C. Again, where two justices had exercised their discretion in deciding at first to hear a case on the vagrant act, 5 G. IV. c. 83, s. 3, which involved a question of the regularity of a Scotch marriage of the alleged vagrant, they were held wrong in afterwards refusing to hear the whole evidence offered for the defendant to impugn the marriage, and a mandamus

issued accordingly, R. v. Cumberland (Justices), 4 Ad. & El. 695.

(u) R. v. Gloucestershire (Justices), 1 B. & Adol. 1. Recognized by Parke, J., in R. v. Frieston, 5 B. & Adol. 599; and by Coleridge, J., in R. v. Cheshire (Justices), Trin. 1840, 8 D. P. C. 616.

(v) See per Lord Ellenborough, in R. v. Leicestershire (Justices), 1 M. & S. 442; Bodmin v. Warligen, 2 Bott, 6th ed. pl. 982, cited by Bayley, J., ibid.

(w) 1 Ventris, 210; R. v. James, 2 M. & Sel. 321; R. v. Leicestershire (Justices), 1 M. & S. 442; R. v. Monmouthshire (Justices), 8 B. & C. 139; 2 M. & Ryl. 132, S. C.; post, p. 661, n. (a).

(x) As to this practice, see post, tit. Certiorari.

entirely, even where the certiorari is not taken away. How long this hardship, so peculiar to suitors in appeals, will be suffered to continue, remains to be seen.

Altering Judgment.]—They may alter their judgments at any time during the continuance of the same session at which they are made, but not after it has ended by the departure of those magistrates who composed it (x).

Equal Division.]-The chairman has the same right to vote as any other justice present, but has no casting or double vote, in case the numbers including his own vote should be equal; for inter pares non est potestas.

In cases of equal division, the proper course is to continue the session by adjournment to some day not later than that on which the next original quarter session should be holden, and so on from session to session, if the question in doubt remains so long undecided by a majority (y). For ctherwise, or if the judgment or order of adjourn ment has been erroneously pronounced or entered, the justices who were present cannot take up or rectify the matter after the session ended, nor can the court above assist them (z). It has been said to

(x) Anon. 1 Ventris, 210. See 2 M. & S. 321; 1 M. & S. 442; 8 B. & C. 139.

(y) See ante, p. 61; 2 Nol. 546, 4th edit. If the neglect to adjourn be with criminal intent, or occasions a failure of justice in any respect, an information will lie against the justices who attended the sessions; but where, from its being overlooked that the numbers for quashing were equal with those for confirming the order, judgment was entered to quash it, but the error was not noticed to the court during the session, a mandamus to rehear the appeal was refused, on the ground that as the sessions had not doubted so far as to send up a case, but had actually given judgment, the court above could not look dehors the record, by scrutinizing the poll on which the judgment proceeded, R. v. Leicestershire (Justices), 1 M. & S. 442. See 4 T. R. 71. So where an equality of votes, which caused an adjournment, was in fact caused by the vote of a magistrate who was not entitled to vote, R. v. Usk, 2 M. & Ryl. 172; S. C. nom. R. v. Monmouthshire (Justices), 8 B. & C. 137.

(z) Ante, p. 61. In R. v. Stansfield (Inh.), Burr. Sett. Cas. 205, a case of appeal to the next sessions after order of removal, being the West Riding sessions held at Pontefract; the following were the entries of adjournments of sessions. The Pontefract sessions held 27th April, 17 G. II., upon an appeal by Spotland, order the said appeal [under 9 G. I. c. 7, s. 8.] to be respited to the next general quarter sessions of the peace, to be holden by adjournment at Bradford, in and for the said riding; and that the churchwardens and overseers of the poor of Stansfield aforesaid, do on notice of this order pay or cause to be paid to the churchwardens and overseers of the poor of Spotland aforesaid, the sum of four guineas, for costs of the said appeal. And the general quarter sessions of the peace the lord the king, holden at Skipton in and for the said riding, on Tuesday, the 13th day of July, 16 G. II., before, &c. That same sessions of the peace was ad journed by the justices last named, and others their fellows as aforesaid, until Thursday, the 15th day of the said month

of

be the bounden duty of the clerk of the peace to enter an adjournment in the above case (a); but this doctrine has been disputed, on the ground that as the respondents in a case of removal are bound to support the order, they fail to do so, when the justices do not decide with them; so that, consequently, on an equal division, such an order must be quashed (b).

General Control by the Court of Queen's Bench of the Practice of Quarter Sessions, particularly in regard to their Dismissal of Appeals.] -This subject has been touched on incidentally in previous observations on the trial of respited appeals. The reversal by mandamus of the order of proceeding at quarter sessions, according to the rules of practice which there prevail in hearing appeals, is a part of the jurisdiction of the court of queen's bench, which it will not be inclined to exercise unless it be apparent that gross injustice will follow the refusal of that remedy (c). Accordingly the court refused a mandamus to

sessions to re-hear an appeal, on the ground that their practice was inconvenient in a given particular, viz. in obliging the appellant against a poor-rate, to begin by impugning it, instead of calling on the respondents to show a probable ground for the amount, at which they had charged him in it (d). So they may refuse to respite the trial of an appeal for the absence of a material witness, where full notice has been given, and both parties attend to try, unless on payment of costs of the day, according to their usual practice (e). Again, where, by the practice of a sessions, eight days' notice of appeal against an order of removal was required at the first session, but fourteen days' notice of an adjourned appeal, and an appeal was dismissed for want of sufficient notice for the second session, the practice was upheld by the court above (f). But if the sessions, in refusing to hear an appeal, depart from their usual rule of practice, the court above will interfere (g). So where they quash an order of removal, or even a conviction, for matter of form only, subject to the opinion of the court above on the validity of the objection, and it appears to that court, when the conviction is returned on certiorari, that it is sufficient on the face of it, they will quash the order of sessions and send back the case to be heard on the merits (h). Again, where a court of quarter sessions dismissed an appeal against an order of removal for non-compliance with their practice, which, by requiring a notice to the respondents of the entry and respite of a respited appeal within one month after such entry and respite, was contrary to 9 G. I. c. 7, s. 8, which requires only a reasonable notice of appeal, the court granted a mandamus, and directed the sessions, if they found that the notice was not reasonable, to adjourn the hearing of the appeal to the next sessions, and to determine it finally there (i). No mandamus lies to a sessions to receive evidence which they have rejected, its admissibility being exclusively a question for them (j). Where an appellant gave fourteen days' notice of appeal,

peals than to dismissing them on technical grounds." Per Lord Denman, C. J., 5 B. & Adol. 992, R. v. Norfolk (Justices).

(d) R. v. Suffolk (Justices), 6 M. & S. 57. And R. v. Topham, 12 East, 546, which seems contra, proceeded on special circumstances. See R. v. Newbury (Inh.), 4 T. R. 475.

(e) R. v. Monmouthshire (Justices), 1 B. & Ad. 895.

(f) R. v. Monmouthshire (Justices), 3 D. P. C. 306.

(g) R. v. Wilts (Justices), 8 B. & C. 380. Appeal against a poor's rate could

not be properly heard at the sessions when it was entered, no notice having been given. It was adjourned, however, on another ground. The sessions, contrary to their usual practice, refused to hear it at the second sessions. And see R. v. Gloucestershire (Justices), 3 D. P. C. 298.

(h) R. v. Ridgway, 5 B. & Ald. 527; 1 D. & R. 132, S. C.

(i) R. v. Norfolk (Justices), 5 B. & Adol. 990. See R. v. Kent (Justices), 8 B. & C. 639, and id. 640, 641, notes. (j) R. v. Cambridgeshire (Justices), 1 D. & R. 325.