1838. Nov. 15.

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THE QUEEN V. THE JUSTICES
OF CHESHIRE.

Sessions - Jurisdiction-Certiorari refused.

An appeal against an order of removal having come on to be heard at the Sessions, the notice was held to be bad, as being signed by one overseer only. The respondents' counsel then applied to have the order confirmed. The Court desired to see the order, and, on its being delivered to them, one of the Justices pointed out what he said was an improper direction of the order, and the Court quashed it :-Held, that as they still had jurisdiction over the appeal, this Court could not interfere with the decision of the Sessions, although it was erroneous; and therefore refused to grant a certiorari to bring up their order.

By an order of two Justices, a pauper was removed from the township of Yeardsleycum-Whaley, in Cheshire, to the parish, township, or place of Chapel-en-le-Frith, in the county of Derby. A notice of appeal was served upon the parish officers of the former parish, signed by two persons as overseers, and one as churchwarden of the parish of Chapel-en-le-Frith. A subsequent notice was served, signed by two persons only, describing themselves as an overseer and churchwarden of Coombs Edge, and sometimes called Chapel-en-le-Frith; and one of the grounds of appeal set forth in NEW SERIES, VIII.-MAG. CAS.

the statement was, that the order was misdirected, inasmuch as Coombs Edge maintained its own poor.

At the Quarter Sessions for the county of Chester, in 1837, the notice of appeal was objected to, as being signed by one overseer only; and the Court held that the objection was fatal. The respondents' counsel then required to have the order confirmed, whereupon the Court desired to see the order; and on its being handed to them, one of the Justices observed that it was wrongly directed that there was no township of Chapel-en-le-Frith, but that the parish of that name was divided into three townships, each of which maintained its own poor. Whereupon the Court decided that the order should be quashed, the respondents' counsel protesting that they had no power to do so.

A rule nisi had been obtained on affidavits, stating these facts, and also that the Justice was in error, for a certiorari to bring up the said order, and all matters relating thereto, against which

Cottingham now shewed cause.—This certiorari cannot issue. The Court of Quarter Sessions have decided the appeal, by quashing the order, and they have not sent up a case for the opinion of this Court -The King v. the Justices of Monmouthshire (1), and The King v. the Justices of Monmouthshire (2), The King v. the Jus(1) 8 B. & C. 137 ; s. c. 6 Law J. Rep. M.C. 87. (2) 4 B. & C. 844.

B

tices of Carnarvon (3); and as to any want of jurisdiction, that cannot be set up by the present applicants, who themselves desired the Justices to confirm the order.

J. Evans and Townsend, in support of the rule. No doubt this Court cannot interfere with an order of Sessions, where they do not send a case. But it is contended, that the Justices, in quashing the order, acted beyond their jurisdiction. When they had determined that the notice of appeal was bad, they had no right to proceed farther in the case. The 4 & 5 Will. 4. c. 76. s. 73, enacts, that unless the notice be given, the appeal shall not be heard. Here, no legal notice was given, and the appeal could not be heard. How then could the Justices have authority to quash the order? Indeed, even under the old law, the notice of appeal was a species of process to bring the parties into court-2 Nol. P. L. 515. If the Justices had no jurisdiction, they could not give it to themselves -The King v. the Justices of Oxfordshire (4). Then, The King v. the Inhabitants of Great Marlow (5), The King v. the Justices of West Riding (6), the King v. the Justices of Somersetshire (7), and case there cited in the note, The King v. the Justices of Buckinghamshire (8), The King v. St. James's, Westminster (9), The King v. the Justices of Cambridgeshire (10), and The King v. the Justices of Cumberland (11), shew, that it may be shewn by affidavit that the Justices have exceeded their jurisdiction. As to the cases of The King v. the Justices of Monmouthshire, there, the Sessions had jurisdiction.

The question, therefore, here is, whether the Justices had jurisdiction. I think they had. An order of removal had been made, against which an appeal was entered, which they had power to try. A preliminary question arose, whether there had been a notice of appeal; and it turned out that there had not. It is a fallacy to say that that omission would deprive them of all further jurisdiction over the case, though no doubt the objection prevented the other party from being heard. Would not the Justices have been authorized to give costs at any period of the Sessions? I think they would; and the appeal, therefore, was before them during the whole of the Sessions. Here also was a jurisdiction claimed by the party. If, when the notice was determined to be bad, the respondents had gone away with the order, saying, that the appeal was at an end, the case might have been different; but they ask to have the order confirmed. It was not very unnatural that the Justices should ask to see the order, and when it is shewn to them, one of them points out a' supposed defect, and the Court quash the order. In that respect, there appears to have been a mistake; but that mistake will not prevent their judgment from being conclusive. The decision here proceeded upon a formal objection; but it might have been upon the merits, and yet there might have been the same impropriety on the part of some Justice.

PATTESON, J.-I can have very little hesitation in saying, that the Justices have acted very wrong and very absurdly in this case. But they had jurisdiction at first, and were not ousted of their jurisdiction by deciding that the notice of appeal was bad.

WILLIAMS, J.-The jurisdiction which the Justices had at first was still continuing when they made the mistake.

COLERIDGE, J.-It has never been laid down, that in no case can affidavits be looked at, where there has been an order of Justices. It may be done in some cases. One is, where the question is as to the jurisdiction. Thus, suppose there is an order, good on the face of it, but made by a person not a Justice, that might be shewn by affidavits. Here, the simple question is, whether the Justices had jurisdiction; if

they had, their judgment cannot be disturbed and certainly they had. The appeal was properly lodged with the Sessions. It came on to be heard, and the parties were there; an objection was taken, which was held good; and then it is said the appeal was out of court. The statute has not so enacted. It is only there said, that the appellants shall not be heard. The respondents are not precluded from applying for costs, and the Sessions had certainly jurisdiction, for the purpose of awarding them. The respondents' counsel appears to have required that the order should be confirmed, or put on the files of the court. Surely, if the Justices, following out his request, propose to examine the order, and do so, it is impossible to say that they had not jurisdiction.

Rules discharged.

THE QUEEN v. SULLIVAN AND

Trial-Jury.

OTHERS.

On the trial of a misdemeanour by a special jury, after they had been sworn, it, appeared, that one of them had been on the grand jury when the indictment was found. It was then proposed that he should leave the box, but the defendants refused to allow that to be done :-Held, that there was no mistrial.

This was an indictment for a conspiracy, tried before Lord Denman, C.J., at the Sittings at Westminster, after last term. It was a special jury cause, and when the jury were sworn, one of them stated that he had been on the grand jury when the bill was found. It was proposed on the part of the prosecution, that he should leave the box; but the counsel for the defendants objected, and the trial proceeded. The defendants were found guilty.

On a former day in this term,

Platt moved for a new trial, contending, that this was a mis-trial. This jury having been a special jury, was struck under the provisions contained in the 6 Geo. 4. c. 50. ss. 30, 31, 32, in which, however, nothing can be found applicable to this point. It seems, however, that upon principle, this

trial cannot be supported. By the law of England, no man is to be convicted of a crime but by the verdict of twenty-four men, twelve of whom must be the grand jury, and twelve the petit jury-4 Bl. Com. c. 23. It cannot be said, in the present case, that that number have convicted the defendants, because the petit jury, containing one of the grand jury, must be considered as constituted of eleven persons only. In the 25 Edw. 3. stat. 5. c. 3. it is enacted, "that no indicter shall be on the jury if challenged on that account." The grand jury are in the nature of indicters. There cannot be any difference arising from the fact of this being a special jury; still there must be a right to challenge a person who is discovered to be disqualified to serve on the jury.

[COLERIDGE, J.-In the margin of the statute, Bro. Abr. Challenge,' is referred Is anything found there upon this

to.

point?] There is no authority upon the subject to be met with.

LORD DENMAN, C.J.-I am not disposed to say at present, whether this was a ground of challenge, though the party ought not to have been returned on the jury. If the fact had been pointed out before the jury had been sworn, he should have been kept out of the box. We will consider whether we will grant a rule.

Cur. adv. vult.

LORD DENMAN, C. J. now said, that in this case no challenge had been taken by the defendants when the jury were struck; and when it was proposed to leave the juryman out of the jury box, the defendants refused, but chose to rely upon the strict law. We think the objection made to the trial is unfounded; and the rule must be

Refused (1).

(1) See The King v. Tremearne, 5 B. & C. 254; s. c. 4 Law J. Rep. K.B. 157; and The King v. Sutton, 8 B. & C. 417; s. c. 6 Law J. Rep. M.C. 102, by name of The King v. Despard and others, where it was held, that if a person has an opportunity of making a challenge, and neglects it, he cannot afterwards make the objection. See also Brunskill v. Giles, 9 Bing, 13; s. c. 1 Law J. Rep. (N.s.) C.P. 143.