1846. The QUEEN v. borough, and one of us of the quorum." The office Queen's Bench. and place of acting were not otherwise shewn on the document. The order of sessions purported to be made on an appeal" from and against an order lately made by Robert Rundle, Esquire, Mayor, and Samuel Kerswill, Esquire, two of her Majesty's justices of the peace for the borough of Devonport in this county." Rowe, in Michaelmas term 1845, obtained a rule nisi to quash the several orders for insufficiency. The J. Greenwood and Merivale now shewed cause. principal objection will be made to the order of removal; for the sessions were not bound, in drawing up their own order, to set forth the order from which the appeal was made so precisely as to shew the jurisdiction of the removing justices. As to the order of removal, if the words had been only "justices of the peace in and for the borough of Devonport," that would have shewn jurisdiction: this agrees with the explanation of the word "in" given by this Court in Regina v. Stockton (a); and the words "in and for" were considered sufficient in Regina v. Casterton (b). The addition of the words "having jurisdiction" cannot make the order bad. Some meaning ought to be attached to within," so that it may not be taken as merely synonymous with "for." Regina v. Milner (c) is also an authority in support of this order of removal. Further, the objection is not properly raised. The rule for the certiorari should have been a rule nisi; and the prosecutor should have been permitted to shew (a) 7 Q. B. 520. (c) 3 Dowl. & L. 128. VOL. IX. N. S. Ꭰ (b) 6 Q. B. 507. NEWTON FERRERS. Volume 1X. 1846. V. NEWTON FERRERS. cause. No case having been granted by the sessions, this Court will require a reason for bringing up the The QUEEN order. In Corner's Practice of the Crown Side of the Court of Queen's Bench, p. 72., the practice in obtaining a certiorari is thus set forth. "If a case has not been reserved, the application (unless on behalf of the prosecutor, or the Attorney General), is not granted of course, but some ground for the removal must be shewn, on a motion made by counsel in Court, or application to a Judge at chambers, founded upon the affidavit of the service of the notice, and such other affidavits as may be necessary" &c. "On application to the Court, a rule to shew cause only is generally granted in the first instance." "In applications at chambers in vacation, it has been the practice to grant or refuse the writ in the first instance, but as it has been decided in one case, that the fiat for the certiorari ought not to be granted out of term absolutely, in the first instance, and as in the case alluded to, a rule nisi to quash orders brought up by a certiorari so obtained, was discharged on that ground (a); it would not be safe to proceed in that manner, but an order nisi should be first obtained, and served in the same manner as a rule to shew cause granted by the Court." It is true (a) Reference is made to Rex v. Chipping Sodbury, 3 Nev. & M. 104. According to the note of Messrs. Barnewall and Adolphus, a certiorari had in that case been obtained upon a Judge's fiat in vacation, without any rule nisi, for bringing up an order of sessions which quashed an order of removal "for the informality thereof," as stated on the face of the order. No case was sent up. Afterwards, in Trinity term 1833, Greaves obtained a rule nisi for quashing the order of sessions, which had been brought up together with the order of removal. In Hilary term 1834 (January 22d, before Lord Denman C. J., Littledale, Taunton and Patteson Js.), I, J. Alexander shewed cause, and Greaves was heard contrà. It was argued, in support of the rule, that no informality ap The QUEEN V. NEWTON FERRERS. that Mr. Archbold, in his "Practice of the Crown Office Queen's Bench. 1846. of the Court of Queen's Bench," p. 160., says: "In Rex v. Chipping Sodbury, 3 Nev. & M. 104 (a), the Court are reported to have holden that the Judge's order in such a case, should be only an order nisi in the first instance; but they seem to have been misled into this decision by the mistaken statement of counsel in argument, that the rule, if moved for in Court, would be a rule nisi only; and the practice is otherwise." The suggestion of counsel, objected to by Mr. Archbold, appears to have been accurate and it seems that Mr. Archbold's account of the practice is correct only where a case is granted by the sessions. This objection to the certiorari may be taken now, as was done in Rex v. Chipping Sodbury (a). It would often be impossible to peared on the order of removal, and that therefore the order of sessions must be considered as bad upon the face of it; and, on the other side, it was contended that the rule must be discharged, because no informality appeared on the face of the order of sessions. In the course of the discussion, Lord Denman C. J. inquired whether there had been a rule nisi for the certiorari: to which Greaves answered that this was necessary only when the certiorari was moved for in Court; but that, in vacation, the certiorari issued on the fiat of a Judge in the first instance. Doubt was expressed by the Court as to the propriety of such a distinction: but, finally, the rule appears to have been discharged on the ground that, the order of removal having been quashed for informality, the respondents would not be prevented from removing again, and it was therefore not necessary for the Court to interfere. According to the report in 3 Nev. & M. 104., the rule was discharged on the ground that the certiorari ought not to have been granted abɛolutely in the first instance. See as to obtaining rules nisi to quash orders brought up on certiorari, and as to raising objections on certiorari which are not stated in a case, Regina v. Heyop, 8 Q. B. 547.; Regina v. St. Anne, Westminster, 8 Q. B. 561.; Regina v. Hartpury, ib. 566. (a) See antè, p. 34, note (a). Volume IX. 1846. V. move to quash the certiorari in proper time. [Pashley, amicus curiæ, said that in Rex v. Ardsley (a), in the Bail The QUEEN Court, Patteson J. had, after consideration, made the rule absolute in the first instance for a certiorari to bring up from quarter sessions an order for costs on application for an order of maintenance, objections being raised upon the face of the order of sessions.] NEWTON FERRERS. Rowe, contrà. As to the last point, the correct rule appears to be that stated by Mr. Archbold. At any rate, the Judge must have a discretion. And, further, the objection cannot be taken now: there should be a rule nisi to quash the certiorari, or else parties may be surprised by the objection. [Lord Denman C. J. You need not discuss that point further. If Rex v. Chipping Sodbury (b) be rightly reported, we are disposed to think that we did not do right there.] As to the principal point, the order of removal does not shew that it was made within the jurisdiction. The only allegation is that the justices had jurisdiction within the borough: where the complaint or order was made does not appear. Therefore the order is bad. (He was then stopped by the Court.) Regina Lord DENMAN C. J. That is our opinion. v. Stockton (c) does not interfere with our view: we there required the word "in" for the purpose of having it shewn that the order was made locally within the jurisdiction. But here the word "within" is not connected with the allegation of complaint. (a) Reported at a later stage, 5 Q. B. 71, and note, ib. 163. (c) 7 Q. B. 520. PATTESON J. An ingenious attempt has been made Queen's Bench. to support the order of removal: but it is impossible to say that there is any thing to shew that the order was made within the jurisdiction. 1846. The QUEEN V. NEWTON WILLIAMS J. concurred. Rule absolute. The QUEEN against The Justices of SURREY. " THE Justices of Surrey, at their Quarter Sessions, by liminary objection (namely, that the notice of appeal purported to be given not by the churchwardens and overseers, but, as the fact was, by a majority of the churchwardens and overseers acting on behalf of all), and a motion was made for a mandamus to the justices to enter continuances and hear the appeal, against which motion the respondents, and not the justices, shewed cause, and the mandamus issued and was obeyed: Held, that the respondents might properly be required to pay the costs of the motion for a mandamus and of the writ, although, in shewing cause, they had upheld the judgment of a Court, given in their favour. |