1862. The QUEEN V. Justices of view of the law, as they merely decide that the appeal ought to be entered at the next Sessions, although it be impracticable then to try it. may In the present case, the appellants, not having given notice of their grounds of appeal fourteen days at least before the first day of the Sessions, could not have been heard in support of their appeal; but, as I think that they were guilty of no laches in availing themselves of the time allowed by law for consideration before taking that step, they were entitled to enter and respite as a matter of right; and that the return therefore is insufficient, and our judgment ought to be for the Crown. BLACKBURN J. It seems to me that our judgment in this case ought to be for the defendants. The difference of opinion in the Court is, I believe, only on one point, and that a narrow one, yet on it the decision of the present case depends, and it is one which may be of practical importance in other cases. The appeal against an order of removal was originally given by stat. 13 & 14 Car. 2. c. 12. s. 2. to the parties aggrieved, and was to the justices "at their next Quarter Sessions." On the construction which has been put on this statute, the next Sessions means the first Quarter Sessions, at the time of the grievance, at which, if the party grieved used reasonable diligence, it was practicable to try the appeal. This statute is silent as to any notice of appeal, but the ordinary principles of justice and the common law required that before the appeal was determined notice should be given to the respondents to enable them to be heard. Stat. 9 G. 1. c. 7. s. 8., reciting that disputes and controversies had arisen on this, enacts, that in future no appeal against an order of removal should be proceeded upon in any Court of Quarter Sessions "unless reasonable notice be given" by the appellants to the respondents, "the reasonableness of which notice shall be determined by the justices of the peace at the Quarter Sessions, to which the appeal is made; and if it shall appear to them that reasonable time of notice was not given, then they shall adjourn the said appeal to the next Quarter Sessions, and then and there finally hear and determine the same." It was settled, on the construction of this statute, that the justices at the Sessions to which the appeal was brought had no discretion; that they must adjourn it, unless reasonable notice of appeal had been given, though it were shewn to their satisfaction that there had been ample time to have given reasonable notice; and further, inasmuch as if no notice of appeal at all was given there was no reasonable notice, that the justices must, if there was no notice, adjourn the appeal; Rex v. The Justices of Gloucestershire (a), Rex v. The Justices of Staffordshire (b), Reg. v. The Justices of London (c). As, till recently, there was nothing to compel the appellants to give notice of appeal within any limited time, the effect of this construction of the Act was that, though the appellants were bound to bring the appeal to the first practicable Sessions, they had an option either to give reasonable notice of the appeal and try it at those first Sessions, or to omit giving reasonable notice, and so as of right to postpone the trial to the next Quarter Sessions. (See 3 Chitty's Statutes, 654, note (d), 2d ed.) Such was the state of the law before stat. 4 & 5 W. 4. c. 76. s. 81. By that section, " in every case where notice of appeal &c. shall be given," the appellants "shall, with (b) 7 East, 549. (a) 1 Doug. 191. (c) 9 Q. B. 41. 1862. The QUEEN V. Justices of SUSSEX. v. Justices of SUSSEX. 1862. such notice, or fourteen days at least before the first day The QUEEN of the Sessions at which such appeal is intended to be tried, send or deliver" to the respondents "a statement in writing under their hands of the grounds of such appeal; and it shall not be lawful for the overseers of such appellant parish to be heard in support of such appeal unless such notice and statement shall have been so given as aforesaid." It is on the true construction of this enactment that I differ from my brothers in the present case. It seems to me that the intention of the Legislature was to make no difference in the existing law as to notices of appeal, or the time at which the appeal should be entered or heard, but they did intend to attach a condition to the appellants being heard in support of the appeal; and that condition was, that grounds of appeal should have been given, either with the notice of appeal, or at least fourteen days before the trial. The appellants, up to the time of that Act, might give a reasonable notice of appeal, and try at the next Sessions; and it was well known that a week's notice was usually held reasonable within the statute. (See note (a) to 3 Chitty's Statutes, p. 685, 2d ed.) The Legislature did not, it seems to me, intend, and certainly did not use words to express an intention, to take away this power from the appellants, or to enact that a reasonable notice should be fourteen days at least. What they apparently intended, and what the words used in their ordinary sense mean, is, that if the appellants with such notice delivered grounds of appeal, they might be heard. But it was also known that a notice of appeal might be given more than fourteen days before the first Sessions, or might be given too late to try at the first Sessions, so that the appeal 1862. The QUEEN V. SUSSEX. would be entered and respited and come on for trial three months and more after the notice of appeal; and it was probably expected that this would in future frequently Justices of be the case, as a notice of appeal was by this Act made a suspension of the power of removal if given within twentyone days. When for these or any other reasons the notice of appeal was given long before the trial, it seems to have been thought unnecessary that the grounds of appeal should be delivered with the notice, and it was provided, as an alternative condition, that the appellants might be heard if the grounds were given fourteen days at least before the first day of the Sessions at which the appeal was intended to be tried, not, it is to be observed, to which the appeal was brought. I shall afterwards return to this part of this subject, as it is upon it that the difference in opinion arises; but for the present, assuming that the construction is that just stated, I proceed to point out how this becomes material in the present case. Stat. 11 & 12 Vict. c. 31. s. 9. for the first time imposed a limit on the time within which notice of appeal must be given. By that enactment no appeal shall be allowed if notice of appeal be not given within the space of twenty-one days after the notice of chargeability and grounds of removal shall have been sent, unless within that time a copy of the depositions shall have been applied for, in which case a further period of fourteen days after sending of such copy shall be allowed for the giving of such notice of appeal. Sometimes this enactment is spoken of as if it gave to the appellants some additional time within which to bring their appeal, but, in truth, it limits and restricts the time-it does not enlarge it. The appellants are still bound, as before, to bring their appeal to the first practicable Sessions after the grievance; Reg. v. The 1862. The QUEEN V. Justices of Inhabitants of Sevenoaks (a), Reg. v. The Justices of Peterborough (b), Reg. v. The Justices of the West Riding (c); but formerly the appellants might always have delayed giving notice of appeal till it was too late to try at that Sessions. The enactment puts a restriction on this power to delay giving notice of appeal. I think that the effect of stat. 11 & 12 Vict. c. 31. s. 9. is that, unless the notice of appeal be given within the prescribed period, the appeal shall not be allowed; but that if the notice be given within the prescribed period the law remains unaltered. The notice may have been given earlier than it would have been if the old option to delay had remained, but I think that the appeal must be tried or respited just as if the notice had (before the Act) been voluntarily given at the same date. If it be a reasonable notice for the next Sessions, the appeal must be tried at those Sessions as heretofore. If the notice is too late for those Sessions, the appeal must as heretofore be entered and respited at those Sessions, and tried at the next Sessions. Assuming for the present that this is the correct view of the statutes, let us see how it applies to the present case. The supposal of the writ in this case is that, at the Quarter Sessions holden for the county of Sussex on the 15th October last, the officers of the poor of Colemore applied to the Quarter Sessions to receive, enter and respite an appeal against an order of removal from Funtington to Colemore, and the Sessions refused to permit the appeal to be entered and respited. Now,. as the Sessions are not bound to enter and respite every appeal when requested so to do, this writ is, I think, defective, (a) 7 Q. B. 136. (b) 7 E. & B. 643. (c) E. B. & E. 713. |