Bail Court. 1846. The QUEEN v. The Justices of SURREY. 'grounds of our appeal," and the only antecedent to the word "our" is "we,"—that is, the parties signing as a majority. [Williams, J. Am I to understand you to contend that the discussion at sessions upon the notice of appeal was a hearing?] Yes. [Williams, J. Then a mandamus would only go if the sessions had said "we will not hear your notice of appeal." The cases cited, proceeded on the ground that there had been a hearing.] It is submitted, that what took place constituted "a hearing," as much as if witnesses had been examined upon the merits. He also cited, Harnley v. Rothwell (a). Pashley and Corner, contrà. The distinction is clear between cases in which the Sessions have decided upon the sufficiency of the examinations, and those in which they have merely decided upon the notice of appeal; in the former case, they have, in fact, decided upon the whole merits of the appeal. The stat. 4 & 5 Wm. 4, c. 76, s. 81, provides, that the parties shall not at the trial go into any other grounds of removal than those set forth in the examinations. It would, therefore, be idle, after the Sessions have decided against the sufficiency of the examinations, to require them to hear the appeal, since a rehearing must be attended with the same result. Ex parte the Overseers, Ackworth (b), recognised in Regina v. St. Mary, Lambeth (c). Insufficiency in the examinations is, at the trial, tantamount to a failure of evidence, and a discussion and adjudication upon them constitutes a complete hearing. But any dis (a) 13 L. J., (N. S.) M. C. 39. (c) 2 New Sess. Ca. 36. cussion or adjudication upon the sufficiency of the notice of appeal, is merely preliminary to entering upon the hearing, and if the notice has been decided to be bad, anything in the nature of a hearing would be illegal. Stat. 9 Geo. 1, c. 7, s. 8, enacts that no appeal from an order of removal "shall be proceeded upon," unless notice of appeal has been given. [Williams, J. That only applies to the sufficiency of the notice in regard to time.] Then the stat. 4 & 5 Wm. 4, c. 76, s. 81, enacts, that "it shall not be lawful" for the "appellant parish to be heard" unless notice and a statement of the grounds of appeal have been given. The effect, therefore, of the decision in this case was, that the parties had no right to be heard. As regards the objection to the notice, Regina v. The Justices of the West Riding (St. Pancras v. Bradford) (a), is decisive that a notice framed as in the present instance is sufficient. WILLIAMS, J. The notice concludes thus: "We, on behalf of the said parish of St. Anne, Westminster, will avail ourselves of all, or some one or more, of the grounds of appeal herein stated;" and is signed by persons described as churchwarden and overseers. Coupling then the beginning with the end, I entertain no doubt that the notice purports to be for and on behalf of the whole. There is no more ground for dismembering a notice of appeal than any other document. As to the other point, though I think there can be no doubt upon it, I should like to look into some cases. Bail Court. 1846. The QUEEN v. The Justices of SURREY. VOL. I. (a) 2 New Sess. Ca. 1. Cur. adv. vult. Bail Court. 1846. The QUEEN v. The Justices of SURREY. Jan. 31. Corner subsequently referred his Lordship to Rex v. The Justices of Gloucestershire (a), Regina v. The Justices of Kent (b), Rex v. The Justices of Salop (c), Rex v. The Justices of Surrey (d), Rex v. The Justices of Norfolk (e), Regina v. The Justices of the West Riding (St. Pancras v. Bradford) (f). WILLIAMS, J., now delivered judgment. In Regina v. The Justices of Surrey, a rule nisi had been obtained for a mandamus commanding the justices to enter continuances and hear an appeal. It appeared, that at the sessions the justices prevented the appellants from entering into their case, on the ground that the notice of appeal was bad. I thought it, however, quite clear upon the argument, that the notice was sufficient, and that the justices ought to have heard the appeal. But it was contended, that, according to the later decisions, it has been held, that where the sessions have entered upon a hearing the Court will not interfere; and upon that point I took time to consider. On further consideration, I am perfectly satisfied that there was no hearing in the present instance; and it has been the constant usage to grant a mandamus when the appeal has been wrongly dismissed upon a preliminary objection. The case of Rex v. The Justices of Gloucestershire (a), is a strong case of that kind. There, after an appeal had been gone into upon the merits and a witness called, a preliminary objection was taken by the counsel for the respondent, upon which the sessions dismissed the appeal. The point made in the present instance was then raised, and it was ex (a) 1 B. & Ad. 1. (d) 5 Q. B. 506. (f) 2 New Sess. Ca. 1. pressly decided, that when the appellant is turned round upon a preliminary objection, which in the opinion of this Court is untenable, a mandamus will lie to compel the sessions to enter continuances and hear the appeal. So in the late case of Regina v. The Justices of Kent (a): that was an appeal against an order for the removal of a pauper lunatic; the sessions dismissed the appeal on account of insufficiency in the notice, but this Court holding that the notice was good, allowed a mandamus to go. The stat. 9 Geo. 1, c. 7, s. 8, is strongly in confirmation of this view; for that statute, after enacting that no appeal shall be proceeded upon unless reasonable notice has been given of the appeal, provides, that "if it shall appear" to the justices "that reasonable time of notice was not given, then they shall adjourn the appeal to the next Quarter Sessions, and then and there finally hear and determine the same." It is, therefore, clear that the notice must be gone into before hearing, and, consequently, a mandamus must be granted in this and another case in which the question was precisely similar (b). Rule absolute. Bail Court. 1846. The QUEEN v. The Justices of SURREY. (a) 2 Q. B. 686. (b) Namely, The Queen v. The Justices of Surrey; (In the matter of an appeal between the Churchwardens and Overseers of St. Anne, Westminster, in the county of Middlesex, appellants, and the Churchwardens, &c., of Hoxton, in the county of Surrey, respondents): which was entered and disposed of at the same sessions, and which it was arranged should abide the event of the principal case. Bail Court. 1846. January 16. Doe on the demise of LEWTHWAITE against ROE. The Christian BOVILL moved for judgment against the casual ejector. The declaration had been duly served upon name of the tenant in pos session was notice to appear, and at the time of service the omitted in the the premises on the tenant in possession; but his Christian name, not being known, was omitted in the notice; and, though asked for at the time of service, the tenant refused it, saying, that "there was no occasion to give it." Under these circumstances, it was submitted, that the plaintiff was entitled to the ordinary rule for judg tenant refused to supply it. Held that the notice was sufficient. ment. The Court thought this sufficient for a Rule absolute. Jan. 23. After decla ration, (containing two counts,) complaining of a false warranty upon the sale of manure, but before plea, "all matters in difference between the parties in the cause" were, by a Judge's order, referred CROSBIE against HOLMES. THIS to an arbitrator, (an accountant), the costs of the action to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator. The award, without saying that it was made de premissis, directed that J. N. H. [defendant] should pay to J. C. [plaintiff] a sum named; and that the costs of the reference and award should be paid by the said J. N. H. Held, that the award was uncertain and bad for not awarding specifically upon the action, and was consequently set aside. Affidavits were produced on both sides, which it was contended, disclosed matters in difference other than those in the cause; but, semble, that the Court decided without reference to the question of whether such other matters were made to appear. |