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Sixthly, Appeal Riding of Yorkshire, had been over-ruled by Rex v. J. of Bucks.-Lord against an order Ellenborough, C. J. said, that the latter case had been well considered, and of removal.

5. Of notice of appeal.

The sessions have power to

judge of the reasonableness of

they be wrong,

the Court of K. B. will interfere.

that the Court were satisfied that the statute was compulsory on the sessions, in these cases, to receive and adjourn the appeal. Rule absolute.

case.

Rex v. J. of Wiltshire, 10 East, 404. This was an application for a mandamus to enter continuances upon the appeal of Stourton, against an order of removal from Mere, in Wiltshire, and to hear the appeal.—By an affidavit of the appellants' attorney, living at Wincaunton in Somerset, it the notice; and if appeared, that he was applied to by the officers of S. on the 19th of April last, to enter the appeal and get it respited until the next sessions, in con-sequence of which, notice of appeal and of the intended motion to respite, was given to the respondents; the next sessions was held on the 26th of April, when the appeal was entered and respited to the Midsummer sessions, which was held at Warminster on the 12th of July; on the 2nd of July, the appellants' attorney learnt, for the first time, that the sessions had made certain rules for their practice, which were not published till after the April sessions, nor acted upon, or officially circulated, till the Midsummer sessions, by which it was required, that, on all trials of appeals, the notice of trial was to be given on or before the Monday in the week next before the sessions, otherwise the notice to be deemed insufficient, and that the like notice was to be given in the case of respited appeals, unless, &c.-On Tuesday, the 5th of July, notice of trial of the appeal was served on the respondents, at six o'clock in the morning, dated the day before, being as soon as the signatures of the parish officers could be obtained. The usual notice theretofore required in such cases, in this and the neighbouring counties, was given in this The appeal was called on, when the respondents objected that the notice had not been given in time. The appellants then applied for an adjournment under the circumstances, offering to pay the costs of the day; but the Court refused it, thinking they had no power to do so.-Affidavits were read in answer, alleging that the new order of practice was made at the preceding January sessions, held at Devizes; and that notice of it was immediately after promulgated in the county. That the appellants' attorney lived only five miles from S., though in the county of Somerset; and that the litigating parishes were very near to each other.-Lord Ellenborough, C. J. The magistrates certainly had a discretion to exercise with respect to what was reasonable time for giving the notice of appeal; but we have also a kind of visitatorial jurisdiction over them, in the exercise of such discretionary power; and we think that, in this case, they have not exercised that discretion in a way that we ought to give effect to; but that we ought to interfere and correct it. Here it appeared that a new rule of practice, with respect to giving notice, had been recently made by the sessions, of which the appellants' atttorney had no knowledge, but he conformed himself to the former practice; and, under these circumstances, it would be too much to conclude the appellants from having their case heard. Rule absolute. [Though by 13 & 14 Car. II. c. 13., the appeal was to be lodged at the next quarter sessions, yet when it was so lodged, the justices might have adjourned it toties quoties the purpose of justices required.-Vide Rex v. Lumley, 2 Salk. 605. And there is nothing in 9 Geo. I. to restrain their general power in this respect, but rather to compel the adjournment, if the first notice has not been given.]—(Mr. East's note.)

Rex v. Lancashire, J., 7 B. & C. 691. On an application for a mandamus to enter continuances, and hear an appeal, the attorney for the appellant stated, in his affidavit, that the order was removed, and his instructions given too late to try his appeal at the July sessions, in 1827. It was lodged and respited then. On the 8th of October, he gave notice of appeal to the ses

dently the intention of the parties not
to enter the appeal, unless the Court
would adjourn it. The justices are to
judge of the reasonableness of the time;
and in some counties they establish a
rule regulating the time of notice. Here
it appears, that the order of removal was

executed on the 28th of November; so
that there was sufficient time for the
appellants to give notice, and to come
prepared to try it; and the justices, who
are the judges of this, thought so.
for mandamus discharged.

Rule

sions held October 22nd. By a rule of sessions, made in 1816, fourteen days' notice, exclusive of the day of notice and the day of holding, was required. The attorney thought that the fourteen days were to be calculated, one exclusive, and the other inclusive.-Lord Tenterden, C. J. We think that justice will be most satisfactorily administered by ordering the justices to enter continuances, and hear this appeal. They certainly have a discretionary power to make rules for the governance of the practice of the sessions, but the case cited (Rex v. Wiltshire J.), shews that this Court, for the purposes of justice, will interfere to control that discretion. Mandamus granted. Though the following case was upon an appeal against a poor's rate, the judgment of the Court seems applicable to other cases.

Rex v. Wiltshire, J., 2 M. & R. 401; 8 B. & C. 380; 1 M. & R. Mag. Ca. 438. Upon an application for a mandamus to enter continuances, and hear an appeal against a poor's rate, it appeared, that the rate was allowed at a period which left the appellant time to give notice of appeal for Michaelmas sessions, which he did; but at those sessions, he merely entered and respited his appeal. That was the practice of the sessions in this as well as many other counties. Between the Michaelmas and Epiphany sessions, he gave notice of trial for the latter; and at those sessions he appeared, and proposed to try the appeal. It was then objected, under 17 Geo. II. c. 38, s. 4, that the Michaelmas sessions having been " the next sessions" after the allowance of the rate, the appellant ought to have given notice of trial for, and come prepared to try at those sessions; and that, not having done so, he was now out of time, and his appeal could not be heard. The sessions dismissed the appeal.-Lord Tenterden, C. J. It appears to me, upon the sound construction of this act of parliament, that where there is time, between the allowance of the rate and the next sessions, for a reasonable notice of appeal to be given, and no notice is given, the justices not only may, but ought to reject the appeal, and not suffer it to be entered at all. But where they do suffer it to be entered, I think they have most clearly the power of adjourning or respiting it; for such a power is incident to their character as a court of justice. The statute requires them to hear and finally determine the appeal, but not at any particular session; it expressly gives them the power of adjourning the hearing on account of a defective notice, and it impliedly gives them a discretionary power of adjourning it for other causes, which may appear to them sufficient for that purpose. In the present case, however, the justices have exercised no discretion at all; for they first, according to their own practice, and as a matter of course, suffered the appeal to be entered, and respited, without any inquiry respecting the notice; and then, afterwards, upon that very practice being objected to, they repudiated it, and refused to hear the appeal. I am of opinion, that the practice is neither a wise one, nor one in conformity with the act of parliament; but it was notorious as the practice of these sessions, and it cannot be allowed that a party coming into that Court as a suitor, and following the practice of the Court, is to be injured by those means, and deprived of the opportunity of having his appeal heard upon the merits. Under such circumstances, I think he was entitled to have his appeal heard at the adjourned sessions; and, therefore, that the rule for a mandamus to the justices to hear it, ought to be made absolute. As to the practice, I certainly recommend it to be altered; it is not consistent with the act of parliament, and it is calculated to produce both delay and expence.-The other judges concurred. Rule absolute.

Rex v. Lindsey, 6 M. & S. 379. An order of removal from Messingham to Tickhill, was made on the 7th of January, 1817. On the 11th, Tickhill gave notice of appeal. At the sessions, the respondents moved to adjourn the appeal, on account of the absence of a witness, and it was adjourned. At the following sessions, the respondents objected that no notice of appeal, for that sessions, had been given; and the order was confirmed without a hearing. By the rules of the sessions in all cases of appeal, not otherwise directed by law, ten days' notice in writing is required, and in case of respited appeals the like notice is given, unless the parties agree to the contrary.-Lord Ellenborough. The appeal was adjourned at the instance of the respondents, who now

Sixthly, Appeal
against an order
of removal.
5. Of notice of
appeal.

No notice of appeal is required takes place at the instance of the

where the respite

respondents.

Sixthly, Appeal against an order of removal.

5. Of notice of appeal.

Seventhly, Effect of an order unappealed against.

1. How far it is final.

Order not appeal

ed against is final; and there

can be no second

order reversing the first, excepting by appeal. Parish, upon whom an original order is made, cannot remove till that be reversed.

The original order is, when unappealed from, conclusive.

Except where the removal is to a place that does

require notice; but have they not, in effect, had notice? the object of giving notice, is to inform a person of that of which he may, otherwise, remain ignorant; but a person cannot be supposed to be ignorant of that which is done at his own request, and for his own convenience.-Bayley, J. The practice of the sessions does not apply to this case, but only to the common case of entry and respiting an appeal. In many cases, parties enter and respite an appeal, as a matter of course, not having satisfied themselves of all the facts of the case. But here the appellants were ready, and in condition to try, and but for the application of the respondents, would have tried their appeal. Then the respondents desire to respite it, which is, in effect, an agreement that they will be ready at the next sessions to try it without notice.

It is not essential that the notice of appeal should be delivered in writing; it may be given orally, but it is obviously most prudent to give a written notice, and such is the general practice. [See a form, post, Appendix.]

(Seventhly)-Effect of an Order unappealed against.(a)

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Malendine v. Hunsdon, Fol. 273. Two justices, by an order, send some persons to Hunsdon; two justices there, by an order, send them back again. By the Court: They ought to have appealed, and not sent them back; and held the order of the first two justices to be good, because there was no appeal against it.

Chalbury v. Chipping Farringdon, 2 Salk. 488. A person was removed, by an order, from a parish in Warwickshire to Chalbury; from thence, by an order, to Chipping Farringdon. It was objected, That Chalbury ought to have appealed, and got the order upon them discharged; to which Holt, C. J., agreed; for sending the man to another place is falsifying the first order, which cannot be done but by appeal; for the order is a determination of the right against all persons, till it be reversed. Chalbury should have appealed from the Warwickshire order, and got that set aside, and sent the man back thither; and the justices there should have sent him to Chipping Farringdon. Therefore the latter order was naught.

Rex v. Leverington, Burr. S. C. 276; 2 Bott, 935. Removal from Sution St. Mary's, to Leverington; and no appeal: and the sessions confirmed the order. Four months after the first order, a second order was made to remove the pauper from Leverington to Sutton St. Nicholas; which second order was confirmed upon appeal.-By the Court. The second order, and the order of sessions confirming it, were quashed, and the first order was confirmed; for L. was bound by the first order unappealed from, unless some subsequent settlement appears, and four months is not a sufficient distance of time, whereupon to ground a presumption of having acquired a new settlement. And the order of sessions, confirming the first order, was quashed, as being a voluntary and extra-judicial act of the sessions, to confirm an order which was not complained of. A resolution to the same effect in Godalmin v. St. Michael's, Winchester, 13 Geo. II., was mentioned by the Court.

The sessions

But in Rex v. Swalcliffe, Cald. 248; 2 Bott, 896. Thomas Hawkins and his wife were removed from Swalcliffe to Stourton. not maintain its quashed the order, and stated specially: That the pauper was born at Swalcliffe; that in January, 1782, he was moved from Swalcliffe to Ascott, a large populous village, part of the parish of Whichford, and maintaining its poor in common with Whichford Ascott did not appeal, and Swalcliffe filed the order at the Epiphany sessions, 1782, for safe custody. The pauper

own poor separate.

(a) See general division of the subject, ante, 705.

Seventhly, Effect of an order unap pealed against.

1. How far it is

and his wife, coming again into Swalcliffe, and not having acquired any sub-
sequent settlement, Swalcliffe obtained the first mentioned order, and sent
the paupers to Stourton, where he had gained a settlement by hiring and
service.—It was contended, that the order of removal to Ascott being unap-
pealed from, was, as to the pauper's settlement in the parish of Whichford
as including Ascott, a conclusive judgment. In reply it was insisted, that final.
though an order of removal unappealed from, is conclusive, when directed to
a place to which a removal can legally be made, and where there is to be
found some person legally authorised to appeal; yet that here were no
officers to act: that to omit to do a thing which was impossible to be done,
could not be conclusive upon any one: that Whichford could not, in this
case, appeal; for not being parties, they were not entitled to be heard.-By
Lord Mansfield, C. J. The removal to Ascott was, in truth, no removal at
all; there was no reason for an appeal; it was a mere nullity. Order of
sessions quashed.

Rex v. Chilverscoton, 8 T. R. 178. W. Fennel removed from Sow to Chilverscoton. Order confirmed. Case: The pauper, in 1779, married his present wife in Bedworth, where he then resided; they were afterwards removed to Sow, by order: "To the churchwardens, &c. of Bedworth, in the county of Warwick, and to the churchwardens, &c. of Sow, in the county of the city of Coventry; whereas complaint has been made by you, the churchwardens, &c. of Bedworth, unto us whose hands and seals are hereunto set, two of His Majesty's justices of the peace (whereof one is of the quorum), for the county aforesaid; that W. Fennel, E. his wife, &c." [The other parts were regular; it was dated 16th March, 1779. No county was mentioned in the margin.] Against this order there was no appeal. In May, 1779, a certificate was granted by Sow to Bedworth, acknowledging the pauper to be settled in Sow, but, at the time of granting this certificate, no settlement had been gained in Sow, unless the above order from Bedworth to Sow had conferred one; but the pauper's settlement had always continued at Chilverscoton. Lord Kenyon, C.J. It should appear upon the face of the order, that the justices who made it had jurisdiction; which, if they had, every fair presumption will be made that they decided rightly; but if they had not, the proceeding is a nullity. It is said, however, that the parish of Sow ought not to be permitted, at this distance of time, to object to the order; but there is a maxim that quod ab initio non valet tractu temporis non convalescet. And as this order was void at the time when it was made, because it does not appear that the justices who removed had any jurisdiction, it cannot have become a valid order by the time that has since elapsed. general proposition, indeed, that an order of removal unappealed against, is conclusive on the parish to which the removal is made, cannot be shaken; but it must be understood as part of that proposition, that the order is not a nullity, but was made by two justices having jurisdiction to make it. The Rex v. Stepney is, I think, decisive of the present.-Lawrence, J., expressing some doubt on the subject, the case was not then finally decided; but afterwards, Lord Kenyon, C.J., said, that after considering the cases cited, and upon the authority of Rex v. Stepney, and Rex v. Bedwin, we are of opinion that the former order was a nullity; and though it was not appealed against, it was not conclusive on the parish of Sow. Order of sessions confirmed.

A contrary opinion had been expressed, in Rex v. Stotfold, see note, infra; but Rex v. Hulcott, 6 T. R., 583, though on a different statute, confirms Rex v. Chilverscoton. (a)

(a) Rex v. Stotfold, 4 T. R. 596. M. Shaw, and his family, were removed from Stotfold to Chilvers. Order quashed. Case: The pauper and his family were, in 1776, removed from Sandon to Stotfold, and delivered to the parish officers of Stotfold, who received them, and did

not appeal. It was then proved that the
order of removal from Sandon to Stotfold,
and the examination on which it was
founded, were in fact taken and signed
by the two justices separately, and not
in the presence of each other.-Lord
Kenyon, C. J., said, That he was not

order want juris

Where the justices making the diction, it is a matter of subof form, and such an order, although not aptotally void, and cannot be

stance, and not

pealed against, is

amended.

Seventhly,

Effect of an order unap

1. How far it is final.

deserted and

Rex v. Llanrhydd, Burr. S. C. 658. Two justices made an order of removal, in May, 1768, from Llanrhydd to Ruthin, and the paupers were delivered to the officers of Ruthin, who maintained them for a while; and pealed against. for some time after they were maintained at the joint expence of both parishes. Notice of appeal being served on the officers of Llanrhydd, on the morning of the sessions, previous to filing of the appeal, the officers of An order may be Llanrhydd consented to take the paupers back to their custody, without giving Ruthin the trouble of appealing. Afterwards, in January, 1769, two other justices removed the same paupers from Llanrhydd to Denbigh. And upon appeal, their settlement was found to be at Denbigh. But it appearing that the former order had not been appealed against, the Court were of opinion, that the order of removal from Llanrhydd to Denbigh ought to be quashed accordingly.-Lord Mansfield, C. J. That order was made in favour of Llanrhydd; Llanrhydd gave it up, and consented to take the paupers back, without giving Ruthin the trouble of appealing against it. May not a party give up a judgment intended for his own benefit? The order of sessions quashed.

given up by consent, without appealing.

The parish in

whose favour an order of removal

consent, abandon

it, without wait

ing to appeal to sessions and another order made by them, removing the pauper to a different parish, was held good.

Rex v. Inhabitants of Diddlebury, 12 East, 359. By an order of removal, dated August 15th, 1809, Mary Davies, single woman with child, was is made, may, by removed from Much Wenlock to Diddlebury. Order confirmed. Case: Soon after the sessions in July, 1809, two justices, by an order, removed the pauper from Much Wenlock to Long Stanton; she was conveyed by the officers of Much Wenlock, and delivered, with the order, to the officers of Long Stanton, who received her, and maintained her for five weeks. On the 15th of August following, a meeting was had between the officers of Much Wenlock and Long Stanton, who, finding the account given by other witnesses was different from that given by the pauper, on whose evidence the order of removal to Long Stanton had been made, and being of opinion that it could not, therefore, be supported, they mutually agreed to cancel that order, which they did, with the consent of the magistrates who had made it, and who, thereupon, made another order, which is the order now appealed against, and which was made before any sessions had intervened, to which any appeal against the first order could be made. There was no appeal against the order of removal to Long Stanton. When this case was called on, Le Blanc, J., said, that the point had been expressly decided in Rex v. Llanrhydd; and Lord Ellenborough, C. J., said, That the point was so clear upon principle, that it did not want any authority to support it.-Against the order, Chalbury v. Chipping Farringdon was cited; and it was urged shortly, that however an order made might be abandoned before execution, it could not afterwards; and being in the nature of a judgment executed, it could only be reversed by appeal.—Lord Ellenborough, C. J., said, There are two ways of getting rid of an order; one by the consent of the parish in whose favour it is made, to abandon it; the other, by waiting till the time of appeal, and appealing against it to the sessions, by whom it may be quashed, if not supported. Here the parish, in whose favour it was made, finding, upon further information, that they could not support it, very sensibly determined to abandon it at once, by consent, and acted accordingly.

then prepared to state, from his papers,
the reasons at length upon which their
judgment was founded, but that he had
thoroughly and attentively considered
the question; and that the result of his
deliberations and of the rest of the Court
was, that the former order was only void-
able, not absolutely void; and, therefore,
that it was necessary for the parish who
wished to avoid it, to have appealed
against it in a regular course of proceed.
ings. That it would be extremely in-
convenient to permit a parish to set aside

an order of removal at any distance of time, which had been acquiesced under, for years, without any dispute; and that a distinction had always prevailed between void and voidable instruments; a strong instance of which was that on the construction of the stat. Westminster 2, c. 1, which, though it enacts, that all fines contrary to that act shall be ipso jure null, has been held to mean only voidable by some legal proceeding. Order of sessions confirmed.

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