were right in acting upon her answer. Then, suppose they ought to have pursued the inquiry, and improper evidence had been received, it cannot be contended, that 1845. The QUEEN v. Inhabitants of the proceedings are to be set aside on that ground, if KENILWORTH. there is sufficient legal evidence without it. Order of sessions confirmed. The QUEEN v. The Justices of MIDDLESEX. THIS was a rule calling on the justices of Middlesex to shew cause why a mandamus should not issue commanding them to enter continuances and hear an appeal of one Henry Thomas, against a rate or assessment made for the relief of the poor of the parish of St. Leonard, Shoreditch, in the said county. The appeal was under the 53 Geo. 3, c. cxii, being a local act for the parish of St. Leonard, Shoreditch, by the 121st section of which an appeal is given to the party grieved to the next Middlesex sessions, "the appellant giving seven days' notice at least in writing of his intention to bring such appeal." It appeared that Henry Thomas, being rated under the act, applied for relief to the trustees, who determined against him; in consequence of which he served a notice of appeal on the clerk to the trustees at half-past nine o'clock A. M. on the 31st of December. The next sessions commenced at ten o'clock A. M. on the 7th of January following. According to the rule of the Middlesex sessions, every appeal intended to be tried must both of the entire day of giving the notice and the first day of sessions, as the fraction of the day is not to be considered in such calculation, and the day of bringing of an appeal is the day on which it is entered, not heard. 1845. The QUEEN v. The Justices of be entered on the first day, although the 30th of January was the day fixed for the trial of such appeals, and none could be heard before that day. On that day the MIDDLESEX. appeal being called on, was adjourned on the application of the respondents to the April sessions; and when it came on for trial there, they objected to its being heard, on the ground that the appellant had not given seven clear days' notice of appeal. It was not objected by the appellant that there had been any waiver on the part of the respondents; and the sessions, thinking the objection valid, refused to hear the appeal. Pashley, on moving for the rule, contended, that the day on which the notice was given should be included in the computation of the time, or, at all events, the fraction of the day considered, and that the respondents, by applying for the adjournment of the appeal, had waived their right to object to the notice. Prendergast and Hodges shewed cause (a).-The notice of appeal was insufficient, as the words "seven days at least must be construed to mean seven days exclusive both of the day of sending the notice and of the day of entering the appeal: Regina v. The Justices of Shropshire (b), Zouch v. Empsey(c), Mitchell v. Foster (d), Chambers v. Smith (e). In Young v. Higgon (f), Parke, B., referring to Lester v. Garland (g), says, "When the time from a particular period is allowed to a party to do any act, the first day is to be reckoned exclusively. It is true that Godson v. Sanctuary (h) shews that for some purposes the Court will take notice of the fraction of a day, but that case had no reference to an act to be done (a) June 5, before Wightman, J. (e) 13 L. J., N.JS., Exch., 25. (b) 8 A. & E. 173. (c) 4 B. & A. 522. (d) 12 A. & E. 472. (f) 6 M. & W. 49. (h) 4 B. & Ad. 255. at a particular time." [Wightman, J.-That was a question as to the priority in point of time of one of two acts, both done on the same day, so that the fraction of a day became material.] Although it appears that by the practice of the Middlesex sessions the first day of the sessions is not the appeal day, yet, as in contemplation of law the sessions are but one day, the notice must be given with reference to the first day: Rex v. The Justices of Surrey (a). [Wightman, J.-I think the day on which the appeal is entered must for this purpose be considered as the day on which it is brought.] As to the waiver, it was not urged at the sessions, and, if it had been, would not bind the justices: Rex v. The Justices of the West Riding (b), Regina v. The Justices of Middlesex (c). Pashley, contrà.-The notice was in time: Rex v. Goodenough (d), Rex v. The Justices of the West Riding (e), Gould v. Hole (f). The case of Regina v. The Justices of Shropshire (g) is distinguishable from this, as there the notice was required to be given "fourteen days at least before the first day of the sessions." The terminus ad quem was therefore distinctly excluded. That is not so here, so a different computation of time may be admitted. In Zouch v. Empsey (h), it is to be remarked that Legge v. Williams (i) was not cited, where a notice of trial given on the 9th for the 19th, under the 14 Geo. 2, c. 17, s. 4, which required "at least ten days' notice before such intended trial," was held good. At all events, in such a case the Court will notice (a) 1 M. & S. 479. (b) 5 B. & Ad. 667. (c) 12 L. J., N. S., M. C., 59. (d) 2 A. & E. 463. (e) 4 B. & Ad. 685. (f) 4 M. & R. 301, n. (g) 8 A. & E. 173. (h) 4 B. & A. 552. (i) 2 Tidd. Prac. 815, 8th Ed. 1845. The QUEEN v. The Justices of 1845. The QUEEN ข. The Justices of the portions of a day, and hold a notice like the present sufficient, if it includes seven times twenty-four hours: Symons v. Low (a), Pugh v. Robinson (b), Ex parte MIDDLESEX. Farquhar (c), Ex parte Davey (d), Ex parte Senior (e), Godson v. Sanctuary (f), Cowie v. Harris (g), Harper v. Taswell (h), where Tindal, C. J., says, "The statute requires that he shall wait five whole days, that is, five times twenty-four hours." It is usual in such cases to reckon one day inclusive and the other exclusive; the rule being, that, when time has to run from the doing of an act, the day on which that act is done may be included, though it is otherwise when the time runs from a given day Bellasis v. Hester (i), citing Clayton's Case (j), Co. Litt. 46. b., 255. a.; Com. Dig. Temps, A.; Norris v. The Hundred of Gowtry (k), Glassington v. Rawlins (1), Hardy v. Ryle (m), where Bayley, J., notices the distinction between parties to an act and strangers, and, referring to Lester v. Garland (n), says, "Where the act is one to which the party against whom the computation is made is privy, the day on which the act is done may be included: where that party is a stranger to the act, the day ought to be excluded." : Cur. adv. vult. WIGHTMAN, J., now delivered judgment. This was a mandamus to justices to enter continuances and hear an appeal against a poor-rate for the parish of St. Leonard, Shoreditch. The proceedings were under a local act (53 Geo. 3, c. cxii) regulating that parish, which provides an appeal to the quarter sessions holden within (a) Styles, 72. (b) 1 T. R. 116. (h) 6 C. & P. 166. 1845. The QUEEN v. The Justices of three months next after the determination of the trustees, and requires that an appellant shall give "seven days' notice, at least, in writing, of his intention to bring such appeal." The notice appears to have been MIDDLESEX. served in fact on the 31st of December, at half-past nine o'clock in the morning, and the sessions for which it was given were held on the 7th of January at ten, on which day the appeal was entered. The question, therefore, is, whether the notice was in time according to the requirement of the act. If this were res integra, I confess I should be inclined to think the notice was sufficient; but it is one which has been so frequently decided, that it is too late to review the decisions now. Zouch v. Empsey (a), Rex v. The Justices of Shropshire (b), and Mitchell v. Foster (c) are directly in point to prove that the words“at least" are exclusive as well of the day of service as of the day of the act to which the notice refers. It was contended that the fraction of the day on which the notice was given might be taken into consideration, in which case it would have been in time; but no authority was quoted to shew that that can be done where words similar to those in question have been used. Where the question is, which of two acts takes precedence of the other, a fraction of a day may be considered; but in such cases as this, where one act is to be done a certain number of days, at least, before another act, the precise time at which either of the acts is done does not become material, as the day on which each of the acts is to be done must be excluded. I am, therefore, of opinion, that this notice was served one day too late, and that the sessions were justified in refusing to hear the appeal. Rule discharged. (a) 4 B. & A. 522. (b) 8 A. & E. 173. (c) 12 A. & E. 472. |