Page images
[ocr errors][ocr errors][merged small]

Herein of the duration of its authority, and its .

termination ; with some observations on other. matters connected with, or arising out of, its duties ; not only while the Court is sitting, but subsequent to its adjournment, or expiz ration.


Termination All Sessions are of course terminated by

the departure of the Justices, the Constituted authorities by whom they are holden, unless

they be previously prolonged by adjournment. Adjourn. But such adjournment ought not to be beyond

the time of meeting of the next Quarterly Ses

sion. Cannot be An indictment was found before the Justices to a day subsequent to for the County of Lincoln against a Constable Session by

for refusing to obey an order. The defendant statute. was tried, convicted, and had judgment given

against him, at a General Session holden the 3rd day of May, (which was after the Easter Session began) by the adjournment of the Epiphany Session. The judgment was reversed by the Court of B. R. “ because the Justice

cannot continue one General Session to a day subsequent to the time appointed by the stat. of Hen. 5, for the holding another original, Session."* . .

But though they inay not adjourn a matter over the next original Session, they may, in certain cases, adjourn it to them ; as where .a .' statute giving an appeal to the Session within a certain number of months after the cause of complaint shall arise, direct the Justices at the said Session to hear and determine the matters of such appeal, &c.; yet it seems they have an incidental power of adjourning it to another Session upon lawful cause. ;-of the sufficiency of which cause they are the sole Judges. But where the Session is adjourned, . the style of it must not run' at such Session held by adjournment,” but the original meeting of the Session ought to be set forth, and that it was "continued from thence to such further time by adjournment.”+ It has been observed in a preceding page, Judgments

may be als that the whole Session being considered as one terede day, the Justices may alter their judgments at any time before its expiration, and may there.

fore make any order to annul a former order · made during its continuance; but this is a

power to be exercised with great delicacy and

[ocr errors]

* 19 Viner, 358. f 2 Str. 832, 865.

discretion ; for if it were to be done by a fresh accession of Justices in the spirit of party, or otherwise in an unbecoming manner, it would be visited by the Court of B. R. in the shape of an information against the Justices who

concurred in the transaction.* Cannot be Įt follows necessarily, from what has been - Keviewed by

a subsequent already advanced, that, 'as the power of the Session. Court expires with the conclusion of its sitting,

if a question be not kept open by adjournment of the Session, or respite of the particular subject, it cannot be reviewed, or placed in any

new situation, by any subsequent Session. May be re. But beside these means, by which the Jus. ferred to a superior au-tices may, purely of their own anthority, pro

crastinate their decision on some subjects, there are other modes, by means of which any particular question of legal difficulty may be referred to the opinion of a superior tribunal ; or

by which the subject matter may be altogether · taken out of their hands, at the instance of a party interested.

These are 1st, by the reference of the whole case, or any particular poịnt, to the Judge of Assize.

2ndly, By stating the special circumstances of a case for the consideration of the Court of King's Bench, and,


* 2 Nol. P. L. 449.
† 2 Salk. 477.-2 Nolan, 450.


Sdly, By a writ of Certiorari. Of these respectively.

A reference to the Judge of Assize, either of Reference the whole case, or of some point of legal dif-1.JW ficulty involved in it, used formerly to be a common practice, but is of late fallen much into disuse. For this change many reasons might be adduced, but they are unnecessary here. If any particular circumstances should make this mode eligible, the right still continues; but it has generally given place to a more eligible one, which is that of stating a special case for the determination of the Court Special case. of King's-Bench.

This is carried into effect by the Counsel agreeing to a statement of facts, which are usually corrected and settled by a reference to the Chairman's notes.

The case so settled is to be signed by the junior counsel on each side. If no counsel are employed, or if they cannot agree upon a case, even with the assistance of the chairman, the latter may, with the concurrence of a majority of the Justices on the Bench, state and sign a special case himself. • There is no specific form or precedent, ac- Form of the cording to which a special case must be drawn ; eas but nevertheless, there are certain rulex to be.

the case.

collected from a long succession of determi. nations, which are, in substance, as follow: The Justices, by the summary jurisdiction which is given to them, are placed in the situation of jurors, and judges, conjointly. They

are to elicit the facts from the evidence as juThe law of rors would do, and they are to judge of the

law arising out of those facts in the common course, if they think fit. Out of this position arise two conclusions ; viz. first, that they are not compellable to grant a special case, if they entertain no doubt whatever of the law; and therefore, though it is certainly, in point of candor, right to comply with the request of ei. ther of the litigant parties by doing so, where any reasonable doubt on the subject is sug. gested, they will best consult the interests of the public by refusing it where they believe the application to arise out of mere obstinacy, or a spirit of litigation, Secondly, that their authority to judge of the Law, is the only one

which they reserve for the Superior Court, The facts. whence it follows that the Facts make no

part of the subject matter, on which the Court above are to exercise their discretion, and there. fore, having been found by the Justices, they must be specifically stated in the case, and not the evidence from which they were deduced." A very few examples may suffice for illustra

[merged small][merged small][ocr errors]
« PreviousContinue »