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to respondents, did not apply to the case before them, in which the respondents, by desiring to respite the appeal, agreed in effect to be ready to try at the next sessions without notice (1). The legislature having only required reasonable notice of appeal against an order of removal, the sessions have no power to require any other notice, e. g. by resolving, that whenever an appeal against an order of removal shall be entered and respited, notice thereof shall, within one month after such entry and respite, be given to the officers of the removing parish (m).

Where an appeal against an order of removal was entered and respited at a particular sessions, in pursuance of previous notice to that purpose, as also that the appeal would be tried with effect at the following session, the court is reported to have held in one case that a negociation for arrangement, which went off in the interval, did not exonerate the appellants from giving the usual, viz. a fresh notice to try at the second sessions, before they could be heard there (n). An adjournment of an appeal to the following session, on account of an equal division of opinion on the bench, will not oblige an appellant to give fresh notice of trying it, though that be the usual practice on adjourned appeals (o). Where a court of quarter sessions dismissed an appeal for want of proving a notice of trying a respited appeal at the sessions, to which it had been respited, such proof not being required either by the act which gave the appeal, or their own practice, the court ordered the sessions to hear the appeal (p).

As to serving notice before trying respited appeal against a rate, see

(1) R. v. Lindsay (Justices), 6 M. & S. 379. Bayley, J., added that the sessions rule of practice applied only to the common case of entry and respiting an appeal, which is done in many cases as a matter of course, the appellants not having then fully satisfied themselves of all the facts of the case; and see R. v. Hertfordshire (Justices), 4 B. & Adol. 561; R. v. Yorkshire (Justices, W. R.), 1 Ad. & E. 606.

(m) R. v. Norfolk (Justices), 5 B. & Adol. 990, mandamus issued to compel a hearing of the appeal.

(n) R. v. Essex (Justices), 2 Chit. R. 385, Hil. 1820. The practice of the sessions is not distinctly stated, but appears to have been the foundation of the judgment.

(0) R. v. Bucks (Justices), 6 D. & R. 142; 3 D. & R. M. C. 23, S. C.; ante, p. 647.

(p) R. v. Yorkshire (Justices, W. R.), in Bower v. Accounts of Meltham Inclosure, 5 B. & Adol. 667. A local act enabled parties in certain cases to appeal to quarter sessions on giving ten days' notice, but did not prescribe that if the appeal was respited, further notice should be given of trying it; nor did the sessions appear to have any rule of prac tice requiring such notice. Notice of appeal was given in due time according to the act, for the January session, accompanied by notice that the appellant would there move the respite of the hearing to the April session. It was respited accordingly, but the April sion, after refusing a motion for further respite, held, that before the appellant could go on to try the appeal, he was bound to prove his notice of appeal, not for the original January session, but of the respited appeal for the then session.

ses

post, Chap. X. section 1; or against order of removal, Chap. XI. section 2.

SECTION IV.

OF THE ENTRY, CALLING ON, ADJOURNMENT, HEARING, AND DETERMINATION OF APPEALS AT THE QUARTER SESSIONS.

THE names of the parties to each appeal should be furnished by the appellants to the clerk of the peace, who should enter on a separate paper the names of each appeal in the order in which he receives them (q). The justices at adjourned quarter sessions were held right in refusing to receive an appeal, the entry of which had been refused at the original session, for want of the notice of appeal, and recognizance required by an act which gave an appeal to the "next general quarter sessions :" but directed that no such appeal should be brought, received, or heard, unless such notice or recognizance should be given, &c. (r).

The time within which an appeal must be entered is fixed by the practice of each sessions; but if it be entered in time, a motion to respite it may be made at a later period of the sessions.

The appeals are usually called on for hearing in the order in which they stand in the paper of the clerk of the peace. This is, however, subject to any other arrangement which may be made by the court; who may exercise their discretion in taking them in any order which public convenience or particular circumstances, as in the case of many persons attending from a great distance, or of the necessary attendance of jurors, in appeals under some statutes, may appear to them to make convenient for the more effectual attainment of justice.

The first proper step, after calling on the appeal, is for the clerk of the peace to read the order or conviction, &c. appealed against; and which should always be returned to the sessions (s). The notice of appeal, as well as the entry into recognizance, if required by statute as conditions precedent to the right of appeal, must then be proved,

(4) A mistake of a clerk of the peace in stating three appeals as one, which from particular circumstances was overlooked at the sessions, but became afterwards material, was amended by the king's bench, in R. v. Yorkshire (Just., W.R.), 4 B. & Adol. 685.

(r) R. v. Lincolnshire (Justices), 3 B. & Cr. 548, decided on 49 G. III. c. 68, 5. 7.

(s) Post, tit. Convictions. When so returned, it is the only one of which the sessions will take notice, and a mere formal mistake in a copy of it given to the appellant, will not afford ground for quashing the original so returned, R. v. Allen, 15 East, 336, 346; Paley on Conv. 266, 3d edit. See In re Rix, 4 D. & R. 352; R. v. Barker, 1 East, 186.

whether it is intended to try, or only to move to respite the hearing; for till it is made to appear to the court that the appeal is duly lodged at the proper sessions, as well as that due notice has been given, and recognizance entered into, where so required by the act applicable to the appeal, their jurisdiction to hear or adjourn it will not attach. The neglect of any one of the above, or of other matters so required by any statute, will have the effect of preventing the sessions from entering or receiving, or dealing with the appeal in any manner; for, till it is regularly brought before them by compliance with the provisions of the act, it cannot be entertained, even for the purpose of adjourning it only, as the sessions cannot thus acquire a jurisdiction by an act of their own (t); and all they can do is to dismiss it. But in cases in which no specific notice of appeal or recognizance is prescribed by statute, or in which one or both are required, but either no particular time is fixed for giving them, or "reasonable" notice is required, the sessions must decide whether reasonable notice of appeal has been given; while in cases where no notice need be given, they must decide whether the respondent has been so far surprised by the want of it, or misled by any notice which has in fact been given, as to be unable to meet the case without further time. If they find that he has, or that reasonable notice has not been given, they may respite the hearing at the instance of the respondent (u) on payment of costs, or without it, as they think reasonable; and if they do so, may respite it without any notice of appeal which may have been actually given, being proved or expressly admitted. If the act which gives the appeal requires notice, and a statement therein of the grounds of appeal, the appellant cannot travel out of the notice; but if the grounds are not so required to be alleged, he may; unless the respondent is misled by it, in which case it is clear the sessions should adjourn the appeal (x). A respondent may so waive proof of notice of appeal, or admit it, as to make proof of it unnecessary (y).

Adjournment of Hearing of an Appeal in the common Mode of "Entering and Respiting," or in Absence of material Witness.]— A power of adjourning the consideration of an appeal properly lodged (z)

(t) R. v. Oxfordshire (Justices), 1 M. & S. 448; R. v. King's Langley, Salk. 605; R. v. Lincolnshire (Justices), 3 B. & Cr. 548.

(u) R. v. Herts (Justices), 4 B. & Adol. 561. This power of respiting for want of reasonable notice is expressly conferred by 9 G .I. c. 7, s. 8, in appeals

against orders of removal; and by 17 G. II. c. 38, s. 4, in appeals against

rates.

(x) R. v. Westmorland (Justices), 10 B. & C. 226.

(y) R. v. Herts (Justices), 4 B. & Adol. 561.

(z) Supra, this page.

at the quarter sessions, is necessarily incident to them as a court of justice, and can only be over-ridden by positive enactment to the contrary (a). Thus, where it was questionable whether the statement of grounds of appeal against an order of removal had not been served irregularly, viz. on the wrong persons, in which case by the act the appellant could not be "heard," that word was held not to prevent the sessions at which the appeal had been entered from receiving, or after receiving, from adjourning it to the next quarter sessions, there to be determined (b). However, where the act provided that no appeal should be "brought, received, or heard," in default of notice (c), and where the terms of an act made the giving notice a condition precedent to entering the appeal, it was held that it could not be adjourned without proving such notice (d). But if the sessions think that a respondent has been misled by the terms in which grounds of appeal have been stated, they ought to adjourn the hearing (e).

The practice of entering and respiting appeals to the next sessions, as of course, except where made imperative, or authorized by statute, seems very questionable (ƒ). Assuming, however, the appeal to be properly entered so as to give the sessions jurisdiction, that is, if all the preliminary conditions imposed by the statute, as notice of appeal, &c. are proved or admitted (g), either party may move to adjourn the hearing to the next quarter sessions. Such an adjournment is, as we have just seen, made a matter imperative on the sessions if called for by 9 G. I. c. 7, s. 8, in appeals against orders of removal; and by 17 G. II. c. 38, s. 4, in appeals against poor-rates and overseers' accounts duly entered, where reasonable notice of appeal has not been previously giveu (h); but other cases may occur, as well in appeals under both these acts, as in other appeals, where from the absence of a material

(a) 2 Nol. P. L. 536; R. v. Kimbolton (Inh.), 1 Nev. & Per. 606; 6 Ad. & E. 603; R. v. Wilts (Justices), 13 East, 352.

(b) See last note, and another case of R. v. Wilts (Justices), 8 B. & Cr. 380; 2 Man. & Ry. 403.

(c) R. v. Lincolnshire (Justices), 3 B. & Cr. 548; 5 Dowl. & Ry. 347; on 49 G. III. c. 68, s. 7.

(d) R. v. Oxfordshire (Justices), 1 M. & S. 446.

(e) R. v. Westmorland (Justices), 10 B. & Cr. 226. See 1 B. & Adol. 933; appellant was not bound by the act 55 G. III. c. 51, to have stated any grounds of appeal; and had also stated untenable grounds; and see 1 B. & Adol. 933.

(f) See Chap. X. s. 1, sub fin, 3 B.

& C. 548, and 5 Dowl. & Ry. 347.

(g) R. v. Oxfordshire (Inh.), 1 M. & S. 442, 448. See last page. If a regular notice of appeal has been given for one session, and the appeal is adjourned at the instance of the appellants, after hearing counsel on both sides, the next session should hear it, or entertain a further application to adjourn it, if still necessary, without requiring proof of a strictly regular notice of trial for that session, R. v. Gloucestershire (Justices), 3 Dowl. P. C. 398, per Littledale, J.

(h) R. v. Bucks (Justices), 3 East, 342; R. v. Wilts (Justices), 8 B. & C. 380; R. v. Salop (Justices), 7 East, 949.

witness it may be fit to adjourn the hearing (h). Where the practice of the sessions was to enter appeals against rates at the first sessions after publication, and to adjourn the hearing to the next sessions as a matter of course, the court, though disapproving of such adjournment if the appeal might well have been tried at the first sessions after republication, commanded the sessions to which it had been thus, in fact, adjourned, to hear it, in the exercise of the power inherent in all courts for the advancement of justice. Even where a statute gives an appeal to a particular sessions, directing the justices of the said sessions to hear and determine it, they have an incidental power to adjourn the hearing after it has been duly entered, when their immediate proceeding with it, e. g. in the case of absence of a material witness, appears to them inconvenient for the advancement of justice (i). It should not be adjourned later than to the next original sessions, or to an adjourned session held in the interval (j). A fresh statement of grounds of appeal may be made before the sessions to which an appeal is adjourned (k).

Question of Adjourning Appeals: and Costs where Adjourned for Absence of a material Witness.]—The sessions are to judge of the sufficiency of the ground assigned for adjournment (1), and if not satisfied with it, are to hear the appeal (m). Where the sessions, after arguments for and against an adjournment of the hearing, on account of the absence of a material witness for the appellant, decided against the postponement, and the appellant declined to go into his case, a mandamus to hear the appeal was refused (n). Where full notice of appeal was given without countermand, and both parties attended at sessions, but late in the first day the appellants moved to enter and adjourn the appeal to the next sessions on an affidavit stating the absence of a material witness, the sessions refused the application, except on the terms of paying the respondents their actual costs of the day, as was their practice where due notice had been given but not countermanded

(h) R. v. Wilts (Justices), 8 B. & Cr. 380.

(i) R. v. Wilts, 13 East, 352; R. v. Westmorland (Justices), 10 B. & C. 226; R. v. Leicestershire (Justices), 1 M. & S. 442. The entering and adjourning appeals against orders of removal is governed by 9 G. I. c. 7, s. 8. See R. v. Kent (Justices), 8 B. & C. 639; 3 Man. & Ry. 15; and post, Chap. XI. s. 2; R. v. Norfolk (Justices), 5 B. & Adol. 990; 1 Nev. & Man. 67; post.

(j) See ante, p. 61, R. v. Grince, 19 Vin. 358.

(k) See Reg. v. Derbyshire (Justices), in Newborough v. Swarkston, post. (1) R. v. Wilts (Justices), 13 East,

352.

(m) R. v. Westmorland (Justices), 10 B. & Cr. 226; R. v. Newcastle-onTyne (Justices), 1 B. & Adol. 933.

(n) Ex parte Becke, 3 B. & Adol. 704. Case of appeal against order of filiation under the old law.

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