The Queen against The Justices of Worcestershire
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1221
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 2 C. L. R. 1333; 23 L. J. M. C. 113; 18 Jur. 424. Held inapplicable, R. v. Maule, 1871, 41 L. J. M. C. 50. Discussed, R. v. Harvey, 1874, L. R. 10 Q. B. 51.
[477] the queen as ai'nsi the justices of worcestershire. 1854. Two justices made a certificate, under stat. 5 & 6 W. 4, c. 50, for the diversion of a highway. The certificate stated that the justices had on the application of the surveyor of the highways viewed the highway proposed to be diverted &c., but did not shew that the surveyors were authorized to make the application. On appeal, by a party interested, the Sessions held the certificate bad on this ground, and refused to proceed further.-A rule Nisi having been obtained for a mandamus to enter continuances and hear the appeal:-Held : that the appellate jurisdiction, given to the Sessions by stat. 5 & G W. 4, c. 50, was riot limited to the points mentioned in sect. 89, but was general; and that consequently the Sessions had jurisdiction to entertain the question whether the certificate was good or bad ; but that, having exercised their jurisdiction, mandamus did not lie, even if tbey were wrong.-Held, also, that the certificate was defective, as not shewing that tbe preliminaries necessary to give the two justices jurisdiction to certify had been complied with. [S. C. 2 C. L. R. 1333; 23 L. J. M. C. 113; 18 Jur. 424. Held inapplicable, R. v. Maule, 1871, 41 L. J. M. C. 50. Discussed, R. v. Harvey, 1874, L. R. 10 Q. B. 51.] Hugh Hill, in last Michaelmas Terra, obtained a rule Nisi for a mandamus to the justices of Worcestershire, commanding them to enter continuances in the matter of the enrolment of a certificate, under the hands of two justices in and for Worcester, that they had viewed a highway proposed to be diverted, and to hear an appeal against the same. The affidavits set out as an exhibit the certificate of the two justices. It commenced by reciting that, on the application of the surveyors of the highways in the township of Upper Swinford in the parish of Old Swinford, they had viewed certain highways for foot pastangers, described in the certificate, and also a proposed new highway, which Richard Hickman was desirous should be established in lieu of part of the highways, before described, in a mariner described in the certificate; and, after stating, in substance, a compliance with the directions contained in stat. 5 & 6 W. 4, c. 50, s. 85, the two justices certified that tbey had viewed the proposed diversion, and that the proposed highway was more commodious for the public than the existing oae. The certificate was lodged with the Clerk of the Peace. [478] Notice of appeal to the Quarter Sessions was given, by a person who considered himself aggrieved : in the notice of appeal were eight grounds of appeal. Several of these were on the merits: but the Sessions decided only on the first; which was: " That the said certificate is defective and bad upon the face thereof, because it omits to state that the surveyors, at whose request it is alleged the said justices viewed the highways sought to be diverted, had first duly obtained the consent of the inhabitants of the said parish, in vestry assembled, to the proposed diverting of the said highways, after a notice in writing, from the party desirous of diverting the same, requiring the said surveyors to convene a meeting for the purpose of obtaining such consent, or that the said surveyors were at the time of their said request to view in possession of, and acting under, an order in writing of the chairman of a meeting of the said inhabitants in vestry assembled," When the appeal came on before the Quarter Sessions this objection was taken, and argued ; and the Quarter Sessions, being oi opinion that the certificate was insufficient, refused to hear the case further, or to enter on its merits. Selfe and H. J. Hodgson, in last Hilary Term, shewed cause (a). This being a rule far a mandamus, it is immaterial whether the Sessions have decided rightly or wrongly, if they have in fact exercised their jurisdiction; Regina v. Blanshard (13 Q. B. 318). [Lord Campbell C.J. If, supposing a peremptory mandamus awarded (a) January 26th. Before Lord Campbell C.J., Coleridge, Wightman and Erie Js. 1222 THE QUEEN V. THE JUSTICES OF WORCESTERSHIRE 3 EL. & BL. 9. the justices [479] would be required, in obedience to it, to decide on the very point on which they have already decided, the mandamus will not lie. On the first day of this term (a) we refused a rule Nisi in the nature of a mandamus, because it was, in effect, to order the justices to adjudicate in a particular way.] The cases are uniform to the effect that, if the decision is wrong, there may be a remedy by appeal or by writ of error, but that the remedy by mandamus is applicable only where there has been a declining to exercise jurisdiction. [Lord Campbell C.J. Do you go so far as to say that any bona fide decision on the form of the certificate must be an exercising of jurisdiction? Suppose, to test the principle, that the Sessions had decided that the certificate was bad because the letters " i" were not dotted, or on some such frivolous objection.] It may be a necessary qualification, that the...
To continue reading
Request your trial
-
Murphy en 'n Ander v Venter
...nie, of die feite tot die effek is, dat die dogtertjie 'n sorgbehoewende kind is (Jordaan v Evans, N.O. and Another, 1953 (2) SA 475 (AA) op bl. 477) die bevel nisi op daardie grond nie bekragtig sou kan word nie. In die verband wys mej. van den Heever, namens die applikante, daarop E dat '......
-
S v Nembanzeni
...besigheid; of (3) A deur middel van 'n gehuurde motorvoertuig goedere op 'n openbare pad vervoer het. S. v Momlabe, 1971 (3) SA 475 (T) te bl. 477 in fin. Die taak van die Staat by die bewyslewering word vergemaklik deur die vermoedens wat geskep word deur art. 11. Vir doeleindes van B hier......
-
S v Du Preez
...Verwys kan ook word na die saak van R v Viloen, 1947 (2) SA 56 (AA) op bl. 63, en verder die saak van Rex v Gokool, 1965 (3) SA 461 (N) op bl. 477, 478 en Die getuienis is, volgens my mening, van so 'n aard dat nie gesê kan word B dat dit bloot relevant is tot aantoning dat die appellant 'n......
-
Murphy en 'n Ander v Venter
...nie, of die feite tot die effek is, dat die dogtertjie 'n sorgbehoewende kind is (Jordaan v Evans, N.O. and Another, 1953 (2) SA 475 (AA) op bl. 477) die bevel nisi op daardie grond nie bekragtig sou kan word nie. In die verband wys mej. van den Heever, namens die applikante, daarop E dat '......