Page images
PDF
EPUB

Sixthly, Appeal against an order of removal.

a motion to enter and respite the appeal might have been made at any time during the sessions. The parish not having appealed at the July sessions, the justices refused to receive the appeal at the Michaelmas sessions. Lord Ellenborough, C. J. The 13 & 14 Car. II., certainly directs the appeal 2. To what sesto be at the next quarter sessions, but that must mean the next practicable sions, &c. sessions. The parish officers must have a reasonable time allowed them to make the necessary enquiries, that they may judge of the propriety of appealing or not. The notice here is served on the Saturday. I am of opinion, that they are not bound to devote Sunday to such a purpose. They have then only one entire day, i. e. the Monday, to get the necessary information, and to consider whether they will appeal or not, and that, in my judgment, is not sufficient. It has been said, that although the appeal could not have been heard at those sessions, still that it ought to have been entered and respited: but that would only be incurring an useless expence, without conferring any benefit on either party, and was, therefore, quite unnecessary. Rule absolute.

Many of the earlier cases (a) had determined, that it was necessary to enter and respite an appeal at the next sessions, although there was not time to try it then; a more reasonable rule was laid down in Rex v. The Justices of Devon, 8 B. & C. 640. The order of removal from Upottery to Petminster, was served on the 8th of April. The sessions were held on the 15th of April, at Exeter. Petminster is eight miles from Upottery, and thirty miles from Exeter. The sessions require eight clear days' notice to try an appeal. An appeal may be entered and respited without notice. The appeal was not entered at the Easter sessions, but at the July sessions, when they refused to hear it. Lord Tenterden, C. J., said, It is clear, that in this case, the appellant could not have tried his appeal at the April sessions, but it was contended that he ought to have entered it then, and adjourned it. The entry for an adjournment only, is an useless act; and only occasions unnecessary expence. I think, therefore, he was not bound to enter it at those sessions. One inconvenience only can follow from our holding that it is not

(a) Rer v. Herefordshire, 3 T. R. 504. The order was made on Friday, the 18th of April; on the 19th the pauper was removed; on Tuesday, the 22nd, the sessions was held at Hereford, twenty miles distant from the parish to which the pauper was removed; at which sessions it is the practice not to receive any appeal after the Tuesday morning. The parish not having appealed at those Easter sessions, the justices at the Midsummer sessions refused to receive the appeal. Lord Kenyon, C. J. The words of the act of parliament are very strong, and they require the appeal to be made at the sessions next after the grievance. Where, indeed, an order of removal has been made some time before, and only executed a very short time before the sessions, so that there was no possibility of appealing to those sessions, this court has interfered, by granting a mandamus to compel the justices at the following sessions to receive the appeal; because the words "next sessions" mean "the next possible sessions." But this is a very different case; for there were two intervening days after the execution of the order, and before the Easter sessions; and if there were not sufficient time, be. fore those sessions, to give reasonable

notice of appeal, the appeal might have
been then entered and adjourned, ac-
cording to 9 Geo. III. c. 7, s. 8. The
other judges concurring,-Rule dis-
charged.

Rex v. The Justices of the West Riding
of York, 4 M. & S. 327. An order of
removal from a township in the West
Riding to Saint Luke, in Middlesex, dated
on the 3rd of January, and executed on
the 12th, and the Epiphany sessions for
the West Riding were holden on the
18th. The parish of Saint Luke did not
appeal to those sessions, but offered to
appeal at the Easter sessions in April,
when the justices refused to receive it.-
Le Blanc, J., (in the absence of the Chief
Justice), said, We do not think that the
parish were entitled strictly to pass over
the first sessions; but, if they had done
at the second as much as they ought to
have done, the Court would have relieved
them. The parish might possibly have
gone, in the first instance, to the Epiphany
sessions, but they have not done this,
and have also not placed themselves in
a situation to be heard at the second
sessions; the Court, therefore, do not see
a sufficient ground for granting the man-
damus. Rule discharged.

When it is not

necessary to enter and respite.

Sixthly, Appeal against an order of removal.

2. To what sessions, &c.

Same point.

Same point.

Where an order of removal was

made and execut

the holding the

Epiphany sessions, and the

parish gave due notice and en

tered at the Easter sessions, at which sessions the justices re.

fused to hear the appeal, the Court

necessary, under such circumstances, to enter the appeal at the first sessions, viz. where the removal is made within eight days of the sessions, so that the parish to which the pauper is removed, cannot try their appeal at those sessions, the removing parish may not know of the intention of the other parish to appeal till within eight days before the second sessions. If that should prove an inconvenience, the sessions may remedy it by requiring, under such circumstances, a longer notice. Rule absolute for a mandamus.

Rex v. The Justices of Kent, 8 B. & C. 639; 3 M. & R. 15. The order of removal from Lenham to Pluckley, was served on the 8th of April. The sessions were, on the 15th at Maidstone; they require eight clear days' notice to try an appeal. The appeal was first entered at the July sessions; when the order was served, the officer of Pluckley said they should appeal. The officers of Lenham observed, that nothing could be done at the April sessions, because there were not eight clear days. The sessions, in July, refused to hear it. Lord Tenterden, C. J. We think it reasonable, that the parish of Pluckley should have an opportunity of trying their appeal; they may, probably, have been misled by the observation of the officer of Lenham. Independently of that, it appears to me to have been wholly unnecessary to enter and adjourn the appeal at the first sessions, when they could not then try it. Mandamus granted.

Rex v. Southampton, 6 M. & S. 394. The order of removal from Ropley to Bentworth, was made on the 2nd, and served on the 7th of January. The sessions were on the 14th at Winchester. Eight days' notice is necessary to have an appeal heard. Bentworth is five miles from Ropley, and fifteen from Winchester. The appeal was first entered at the Easter sessions, when they refused to hear it.-Lord Ellenborough. The order was made on the 2nd, and not served till the 7th. What prevented the order's being executed promptly? If it had been served immediately, the appellants might, for any thing that appears to the contrary, have gone to the first sessions and tried their case. The respondents having, by their own act, abridged the time, it seems reasonable that the appellants should be allowed to the next sessions, nunc pro tune, for this purpose: for where delay has been caused by one party, the most favourable construction should be adopted as regards the other.-Abbott, J. The effect of the delay was to prevent the appellants, if they had been so minded, from trying their appeal at the first sessions. Allowing that a satisfactory reason might be given for the delay, still the appellants ought not to be prejudiced by it. Mandamus granted.

Rex v. Surrey, 1 M. & S. 479. Order of removal from Richmond to Mortlake, was dated the 11th of January, and executed in the afternoon of ed the day before that day. The sessions for Surrey began on the 12th. The affidavit stated, that there was not sufficient time to procure any information respecting the pauper, or the evidence to support an appeal; notice must be served of their intention to try such appeal, at least six clear days before the sessions. The sessions are always adjourned for a certain time, and appeals are allowed to be lodged at any time during the sitting of the sessions, or at the adjournment held next after the making such order, without requiring notice. The January sessions commenced on the 12th, and lasted fourteen days, when they were adjourned to the 2nd of February, (which adjournment lasted one day,) and again adjourned to the 1st of March, which lasted two days. Newington, where the sessions were holden, was distant eight miles from Mortlake.-Lord Ellenborough, C. J. The statute does not contemplate the continuance of the sessions. It enacts that the party may appeal "to the next quarter sessions," without adding " or some adjournment thereof." It takes the holding of the sessions as the point of time, to which it refers the appeal; and the sessions are always considered in law as one day, to whatever period they may, by accidental causes, be extended. The appellant parish ought to have a reasonable time allowed for considering whether they will appeal or not. The question is, Whether the interval between the 11th and 12th of January was a reasonable time for that purpose? We are of opinion that it was not. Bayley, J., referred to Rex v. Flintshire, Js. Rule absolute.

of K. B. granted a mandamus to the justices to receive such appeal.

[See also second point on Rex v. Carmarthen, 4 B. & A. 291, ante, 762,763.]

Sixthly, Appeal

against an order of removal.

peal, &c.

Where an order been executed, and by consent parish, and the of the removing magistrates mak. ing it, it is superseded, and the

of removal has

paupers taken back, it is in the sessions to enter an appeal against it or not, accordthink justice requires it, in order spondents to pay to compel the rethe costs of main

discretion of the

ing as they may

tenance, &c., incurred by the

appellants before the order was

superseded.

3. Entering Appeal after Executed Order is Superseded. (a) Rex v. The Justices of Norfolk, 5 B. & A. 484; 1 D. & R. 69; 1 D. & R. Mag. Ca. 17. A rule nisi having been obtained in last Michaelmas term, for a mandamus to the defendants, commanding them to enter continuances, 3. Entering apand hear the appeal of the churchwardens and overseers of the parish of Little Hautboys with Lammas, in Norfolk, against an order of removal of Hannah, wife of Edward George, (then a prisoner in the house of correction, convicted of larceny,) from Repps with Bastwick to Little Hautboys with Lammas. The removal had taken place on the 22nd of August, and on the 5th of September notice of appeal was given. On the 10th of October, a supersedeas, under the hands and seals of the removing magistrates, was served on the officers of the appellant parish, stating, that doubts had been entertained, whether the order could be supported by legal evidence, and requiring them to deliver up the duplicate order to be cancelled, and also requiring the other party to take back the pauper. This was done at the instance of the respondents, the order having been founded on the examination of Edward George, taken under 59 Geo. III. c. 12, s. 28, and that, he being a prisoner, convicted and under sentence for larceny, his examination was not evidence, he himself not being an admissible witness until the expiration of his sentence. It did not appear, whether the costs of maintenance between the 22nd of August and the 10th of October, had been tendered by the respondents. On the 17th of October, application was made to the sessions for leave to enter the appeal, which was refused, the Court being of opinion, that the order was at an end. Alderson, in shewing cause against the rule, contended, on the authority of Rex v. Diddlebury, that, even after the execution of an order of removal, the justices may, with the consent of the respondents, supersede it, and the consent of the appellants is not necessary. Cooper, contra, relied upon Pancras v. Rumbold, as shewing the distinction, that, though the justices may supersede an order before, they cannot do so after it is executed.—Bayley, J. This is a very different case from Pancras v. Rumbold, which is only an authority to shew that the justices, having been surprised into making an order, may, of their own authority, and without the consent of the removing parish, supersede it before execution, but not after. But in this case, there is the consent of the removing parish. The language of Lord Ellenborough, in Rex v. Diddlebury, puts it upon that very ground, for he says, "There are two ways of getting rid of an order, one by consent of the parish in whose favour it is made to abandon it, the other by appeal;" and he adds, afterwards, “What objection can there be, as Lord Mansfield observed, in Rex v. Llanrhydd, to a party's abandoning a judgment intended for his own benefit?" These observations shew, that the consent of the removing parish alone is requisite. I think, that in cases like this, the sessions may exercise a discretion, and enter the appeal or not, so as best to answer the purposes of justice. If the parties removing do not choose to pay the expences of maintenance, incurred previously to the supersedeas, they may then enter the appeal, for the purpose of compelling them so to do. If they are willing to do it, the sessions may refuse to enter the appeal. Here the only object of entering it would be, either to obtain a decision from the sessions, in the absence of a material witness, or to respite the appeal from time to time. In the latter case, there would be an useless expence entailed upon the parties. As soon as George is discharged from prison, a new order may be made; and it is better for the appellants that it should be so, for they will not be compelled to keep the family in the mean time. I think, therefore, that it was entirely in the discretion of the sessions to enter the appeal or not; and I do not see any ground why this Court should interfere with their decision. This rule for a mandamus must be discharged.—Best, J. The principle upon which this Court proceeds, in issuing the writ of mandamus, is to prevent a failure of justice. Here the very reverse would be the effect. For we should either compel the sessions to hear the case in the absence of the person who can give the most material information, or put the parties to the useless expence of obtaining respites from time to time, till his imprisonment be over. Rule discharged.

(a) Sce division of the subject, ante, 761.

Sixthly, Appeal against an order of removal.

4. Of adjournment.

Adjourning an appeal for further consideration. Where justices are divided.

Style of the sessions where they are adjourned.

A quarter sessions once dropped, cannot be resumed.

There must be an adjournment from place to place, where the

4. Of Adjournment. [See post, tit. “Judgment.”]

Rex v. King's Langley, 2 Salk. 605; 1 Lord Raym. 481. Upon an appeal against an order of removal, the justices adjourned the appeal for further consideration. And it was held by the whole Court, They may well adjourn an appeal upon debate for further consideration.

Bodmin v. Warligen, 2 Bott, 982. On an appeal against an order of removal, the justices were divided, and the clerk of the peace made an entry that the appeal was lodged, and nothing done in it. And the Court held, that under these circumstances, the clerk of the peace ought to have entered an adjournment.

Where the sessions itself is adjourned, the style of the sessions ought not to run, at such a sessions held by adjournment, but the time of the first meeting of the sessions ought to be set forth, and that the same was continued to such further time by adjournment; as in Rex v. Hindercleave, 19 Vin. Abr. 356; 2 Bott, 956. An order made at the general quarter sessions of the peace, held by adjournment, was quashed, because it did not appear that this was the next general quarter sessions; for it might be that the sessions was begun and continued by adjournment, before the order was made.

Rex v. Heptonstall, Burr. S. C. 88; 2 Bott, 731. The sessions was said to be holden on such a day by adjournment, and it did not appear when the original sessions was holden. Order was quashed for that cause.

Rex v. Polstead, 2 Stra. 1263; 2 Bott, 986. Appeal was made to the sessions in Suffolk, held April 7th, 1766, against an order of removal. The sessions was adjourned to April 9th, at Woodbridge, where, for want of a sufficient number of justices, nothing could be done. April 11th, a sessions was held at Ipswich, and adjourned to the 14th, at Bury, where the appeal was allowed. It was moved to quash the order of sessions, as made without jurisdiction, the sessions ending for want of an adjournment at Woodbridge. And of that opinion was the Court; for the words in 2 Hen. V. c. 4, and more often if need be, were never considered as giving more than one original sessions in a quarter, but only empowering adjournments. The county must take notice of adjournments, but are not supposed to expect a new sessions till the usual time. And the order of sessions was quashed.

Rex v. West Torrington, Burr. S. C. 293. The sessions was held at Kirton; and from thence adjourned to Caistor, at which place no sessions was held pursuant to the said adjournment. Afterwards, a sessions was held at sessions are held Horncastle; and the appeal was determined there.-By the Court. The sessions at Horncastle could not take up the appeal, for want of jurisdiction. A quarter sessions must be holden four times in a year, as directed by the statute; and it may be adjourned from time to time, and from place to place: but if it is once dropped, it cannot be resumed.

at different

places.

Order confirmed

at the sessions, without hearing the appellants, quashed by Court

of K. B.

5. Of notice of appeal.

9 Geo. 1, c. 7, s. 8. Reasonable

notice is to be

given of appeal.

Road v. North Bradley, 2 Stra. 1168. A pauper was removed from Road to North Bradley. North Bradley gave notice of appeal; on which Road took him back, but, however, got their order confirmed at sessions. The next sessions set both aside as fraudulent. And now Road insisted that the order was good, as not being appealed from at the next quarter sessions: and as to the other, that it was not in the power of one sessions to set aside the act of the other. All being now before the Court, they quashed the first order, as being properly quashable on appeal; and would not take notice, that it was not at the next sessions after service of the order, which being in the case of a recent appeal, they would suppose to have been served too late for an appeal to the next sessions. And as to the order of confirmation, they quashed that, as not being made on any appeal, and, consequently, without jurisdiction; and at the same time quashed the latter part of the second sessions' order, that rescinded that confirmation, as not being properly before them.

5. Of Notice of Appeal.

By 9 Geo. I. c. 7, s. 8. "No appeal, or appeals, from any order or orders of removal of any poor person or persons whatsoever, from any parish or place to another, shall be proceeded upon in any court or quarter sessions, unless reasonable notice be given by the churchwardens or overseers of the poor of such parish or place, who shall make such appeal, unto the churchwardens

or overseers of the poor of such parish or place from which such poor person or persons shall be removed; 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.

The court of sessions have a right to make rules to fix the time when notice of appeal shall be given, as in Rex v. The Justices of Devon, 8 B. & C. 640; ante, 767, 768; post, 771. In some counties fourteen days' notice are required, in others eight days; in others, it is to be given on or before the Monday in the week next before the sessions. [See the following cases. Hence, it is necessary in each case to enquire into the practice of each quarter sessions.] Rex v. J. of Huntingdonshire, E., 20 Geo. III., Cald. 283; 2 Bott, 948. Upon a removal of a pauper, the notice of appeal was served upon a Sunday: had the appellants deferred the service of their notice till another day, they would not have been in time, under the practice established in that court, to have given reasonable notice for the purpose of trying the merits. The sessions (being of opinion that the party aggrieved was not at any rate, or for any purpose, entitled to appeal, unless the prescribed notice had previously been given; and also, that a service of a notice on a Sunday was not a legal service, and that in point of law there had not been any notice) refused to hear, adjourn, or enter the appeal. A rule was obtained for a mandamus to receive and hear the appeal, and no cause being shewn, was made absolute. Rex v. J. of Gloucestershire, E., 10 Geo. III. Doug. 191; 2 Bott, 727. On application for a mandamus to receive an appeal, it appeared from the affidavits, that the examination of the pauper was taken in August; the order of removal, the 12th of November following; and the sessions where the appeal was tendered, held on the 12th of January in the ensuing year: that no notice of appeal had been served (for which the reason assigned was, that the appellants had not been able to get their witnesses ready till it was too late to give such notice); that the Court had been moved to receive the appeal, and adjourn the consideration of it till the following sessions, and had refused.-The Court were clearly of opinion, that the justices ought to have received the appeal, and the rule for a mandamus was made absolute. Rex v. J. of Bucks, 3 East, 343. It was determined, that where notice had been given, and if, upon an appeal lodged against the order of removal, the sessions were of opinion that reasonable notice had not been given by the appellant to the respondents' parish, they could not dismiss the appeal on the ground that notice might have been given in time, but were bound, by the direction of the stat. 9 Geo. 1. c. 7, s. 8, to adjourn the appeal to the next sessions. [N. B. This case overruled that of Rex v. Yorkshire, 3 T. R. 150. See next case and note.]

Rex v. J. of Shropshire, (erroneously reported Rex. v. J. of Staffordshire, 7 East, 549). An appeal was lodged at the next sessions after an order of removal made, and was moved to be adjourned, on the part of the appellants, no notice having been given to the respondents; but the sessions, being of opinion there had been sufficient time for the appellants to have given notice such after the order had been executed, and before the holding of the sessions, dismissed the appeal. Whereupon, a rule was obtained, for a mandamus to enter a continuance to the next sessions, and hear the appeal.No opposition was made; it was considered (a) that Rex v. J. of the North

(a) In that case, reported 3 T. R. 150, an order was made on the 26th of November, and executed on the 28th. It appeared, that the appellants attended at the next sessions, held on the 13th of January, and moved the Court for leave to lodge the appeal, and to respite the hearing thereof to the next sessions. The following entry was made by the sessions: "Forasmuch as it appears to this Court that there has been sufficient

time since the removal of the paupers for
the appellants to give notice, and come
prepared to try this appeal at this ses-
sions, and no cause shewn why they did
not proceed accordingly, it is ordered,
that the motion for lodging the same, and
respiting the hearing to the next quarter
sessions, be rejected." The Court were
of opinion, that the justices had not acted
wrong; for the motion was, in effect, to
adjourn the appeal. And it was evi-

[blocks in formation]
« PreviousContinue »