by appeal for a party grieved by a commitment in execution under this act; we can only declare what the legislature have said in this case; and when, by excepting an order of commitment out of the appeal-clause, they have said, that there shall be no appeal against such an order, and when the commitment must, for this purpose, be taken to be one and the same thing with the conviction, we have no discretion left to exercise upon the subject; and it does not become us to scan the wisdom of the provision which the legislature has enacted." And the rule was discharged.

Operation of general clause of appeal not to be excluded

But the operation of a general clause of appeal in a statute cannot be excluded by mere inference drawn from other clauses; therefore, in R. v. Justices of Cumberland, 1 B. & C. 64., it was held, that a clause in a private inclosure act, declaring that no item or by inference. charge in the accounts of the commissioners shall be binding to the parties concerned, or valid in law, unless the same shall have been duly allowed by a justice of peace in the manner therein pointed out, does not take away an appeal given by a subsequent clause" to the party grieved by any thing done in pursuance of that or the general inclosure act, (other than and except such determinations as were by that or the general inclosure act declared to be binding, final, and conclusive,") the allowance of the accounts by a justice not falling within this exception.

In Rex v. Justices of Hants, 1 B. & Ad. 654., the question was, whether an appeal lay against a conviction, under the Turnpike Act, 4 G. 4. c.95. § 87., in the penalty of 41s. for having taken too large a toll. The eighty-seventh section gives an appeal generally, except where the order, judgment, or determination of the justices is by that act declared to be final; provided always, that no appeal shall be allowed for any conviction for any penalty or forfeiture which shall not exceed 40s. It was argued against the right of appeal, that by this act the provisions of the former statute, 3 G. 4. c. 126., are kept in force, so far as they are not expressly repealed; and that by the 143d section of the latter statute, it is provided, that if the penalty shall not exceed the sum of 207., and shall be more than 5., the same shall be recoverable only by information before a justice of the peace, subject to appeal in manner thereinafter mentioned; and if such penalty shall not exceed the sum of 51., the same shall in like manner be recoverable before a justice of the peace, and no writ of certiorari shall be allowed; and it was urged, that the correct construction of this section of stat. 3 G. 4. was, that where the penalty falls short of 51., there shall be no appeal, the words "subject to appeal" which occur in the former clause of the seetion, being omitted in the last; so that the decision of the justice, &c. in such case is, in effect, declared final by 4 G. 4. c. 95. § 87.: but Lord Tenterden in delivering his judgment said, "I entertained some doubt during the argument, whether there could be any appeal to the sessions in this case; but on further consideration it seems to me, that the provision taking away the appeal expressly in cases where the penalty does not exceed 40s., manifestly shews that it lies in cases where the penalty exceeds that sum." (See this case stated more fully, tit. Highways.)

Again, in Rex v. Justices of Salop, 2 B. & Ad. 145., guardians and directors of the poor were incorporated by statute, and were thereby ordered to hold certain courts and meetings, at which

What is "an act done" by justice against which an ap peal lies.

any rate-payer might object to their proceedings or accounts, and such objection should be taken into consideration, and if the matter could not at that time be settled to the satisfaction of the complaining party, it should be adjourned to the next court, “to be there finally heard and determined." A subsequent clause provided that any person aggrieved by any thing done in pursuance of that act, and for which no particular method of relief was already appointed, might appeal to the quarter sessions, &c. A rate-payer appealed to the sessions against an order of the directors for the payment of sums due on annuities, and as interest on loans: the sessions refused to hear the appeal, and one ground of their refusal was, that the statute had provided a method of relief in this case, by application to the guardians and directors at one of their meetings: but the court of K. B. granted a mandamus, commanding the justices to hear the appeal: and Lord Tenterden, as to the objection in question, said, "The appeal to the sessions is given in cases for which no particular method of relief has been already appointed by the act; but the 51st section merely provides that a party, having any objection to the proceedings of the guardians, may, at a court holden by them, protest and make his objections or observations, which shall be then heard and taken into consideration; and if such court cannot then finally settle and determine the matter to the satisfaction of the party making the objection, the same shall be adjourned over to the next court or meeting of the corporation, to be then finally heard and determined: but if they then persist in the proceeding objected to, it does not appear to me that this clause can be looked upon as giving any method of relief against their order."

Where an appeal to the sessions is given, by a statute, to any person aggrieved by any act done by a justice or justices, in pursuance of that statute, a question may arise as to what is to be considered as "an act done," against which an appeal lies. Thus in Rex v. Tucker, 3 B. & C. 544., a party, whose corn stacks had ben wilfully set on fire, gave the notice required by the stat. 3 G. 4. c. 33. (repealed by 7 & 8 G. 4. c. 27.) A petty session was held in pursuance thereof, when the justices, having heard the evidence, dismissed the complaint, not on the merits, but on a mistaken notion of law. The complainant entered an appeal at the next quarter sessions, the 7th section of the stat. 3 G. 4. c. 33. giving an appeal to any person aggrieved by any thing done in pursuance of the act: but the appeal was dismissed, on the ground that they had not jurisdiction to hear it. The court of K. B, however, held, that the court of quarter sessions ought to have heard the appeal. Lord Tenterden Č. J. "The observation is perfectly correct, that with respect to orders of removal or of filiation, under the 18 Eliz. c. 3., or poor-rates, or proceedings to recover penalties, the sessions cannot entertain an appeal unless some order has been made; but the authority given by the 3 G. 4. c. 33. is special and peculiar. The party injured is, within one month after the injury has been sustained, to give notice of the injury to the high constable, and that he intends to call upon the inhabitants of the hundred to make good the loss. The high constable is to give notice to the justices residing in or acting for the hundred, who, within thirty days, are to hold a special petty sessions to hear the complaint; and the party injured is also to

affix a notice to the church door on two Sundays next before the holding of the petty sessions. The application for relief cannot then be made to this or that justice at the pleasure of the party, but in such a manner as that all the justices acting for the division may attend. The application must be made within a certain time, notices are to be given, and the petty sessions must be held within thirty days. The party cannot, therefore, renew his application for relief if the complaint is dismissed, nor can this court issue a mandamus to the special petty sessions. The question then is, whether a dismissal of the complaint, not on the merits, but on a mistaken notion of law, is not under such circumstances to be considered as an act done, against which an ap eal lies by the 7th section of the act. I think that it is, but my opinion is founded on the peculiar provisions and language of the act, and must not be considered as a precedent in any other case."

But in Rex v. Justices of Kent, 9 B. & C. 283., it appeared that by a local act the management of the parish poor was vested in the churchwardens, overseers, governors, and directors of the poor; and an appeal to them was given to any person thinking himself aggrieved by any thing to be done by virtue of the act; and, if the appellant should be dissatisfied with their determination, then an appeal was given to the quarter sessions. A parishioner having applied, for relief against a rate, to the churchwardens, overseers, governors, and directors, they, at a meeting, resolved to take no further notice of his application. The court of king's bench held that, as they had not come to any determination on the subject-matter of his complaint, the parishioner could not appeal to the quarter sessions, but that he ought to have first applied for a mandamus to compel the churchwardens, overseers, governors, and directors to hear the appeal. Lord Tenterden C.J. By the sixty-third section of the act, any person who thinks himself aggrieved by any rate, or any rule or order, or other matter or thing to be made or done by the churchwardens, overseers, governors, and directors, by virtue of the act, may apply for relief to the said churchwardens, overseers, governors, and directors, at any of their meetings, provided the application be made within the time therein specified; and they are empowered to examine witnesses on oath, touching the matter of such appeal, and to give relief. By section 65. any person dissatisfied with the determination of the said churchwardens, overseers, governors, and directors, may appeal to the general quarter sessions within the time therein specified. In this case, a rate was made, and a sum of money ordered to be paid out of that rate to Suter. Ritchie objected to such payment, and applied for relief under the 63d section, to the churchwardens, overseers, governors, and directors, assembled at a meeting on the 16th of July. They resolved that they would take no notice of the application for relief; they refused, in fact, to hear the appeal at all. The proper course, under those circumstances, would have been to have applied to this court for a mandamus, to compel them to hear his appeal; if they had heard it, and come to a determination upon it, and he had been dissatisfied with that determination, he might then have appealed to the quarter sessions. In Rex v. Tucker, the justices at petty sessions heard the evidence and dismissed the appeal. The rule for a mandamus must be discharged."

Where a mandamus, and not an appeal, is the proper remedy.

Whois a "party aggrieved" competent to appeal.

In Rex v. Justices of St. Albans, 3 B. & C. 698., a question was raised upon the stat. 13 G. 3. c. 78. (Highway Act), which gives an appeal to any person aggrieved by any thing done in pursuance of the act by any justice of the peace or other person, whether an [See also, post.] appointment of surveyors of the highways in petty sessions was a thing done within the statute, by which any person in particular could say that he was a party aggrieved, so as to be competent to appeal. But the court said, that there was no distinction between acts done by justices at the petty sesssions or elsewhere; and that every inhabitant is aggrieved by a bad appointment of surveyors. But the words "person who shall think himself aggrieved” in an appeal clause have been held to mean a person immediately aggrieved, and not one who is consequentially aggrieved. See the case of Rex v. Justices of Middlesex, 3 B. & Adol. 938., stated, antè, tit. Alehouses, p. 56. See also tit. Certiorari, § 1v. infra.

II. To what Court the Appeal lies.

Generally speaking, the appeal must be to the session of the jurisdiction in which the order or conviction is made, unless otherwise specially provided: from the judgments of corporate magistrates to the sessions for the borough; and from the judgments of county magistrates to the sessions for the county. Talf. Dick. Sess. 420.

Thus in the case of South Molton, Skinn. 122., two were convicted for being at a conventicle in a corporation, and upon this conviction an appeal to the next quarter sessions holden within and for the corporation; and the doubt was, whether this appeal ought to be to the next quarter sessions within the corporation, or to the quarter sessions of the county at large: and upon this the recorder adjourned the court, to know the opinion of the court of king's bench therein; and upon considering the statute of 22 Car. 2. c. 1. (see antè, p. 99.), they were unanimously of opinion, that the appeal ought to be to the quarter sessions of the corporation; for the words are, that the record and conviction shall be certified by, &c. at the next quarter sessions of the peace for the county or place where the offence was committed; which being so, it is natural that the appeal shall be to the same county or place where the certificate is returned; and the act saying county or place, intends the return of the certificate shall be to the next quarter sessions of the county, where the conviction is of a conventicle in a county, and to the next quarter sessions of the place, where the conviction is of a conventicle within a place that holds quarter sessions; and the certificate being returnable thither, the appeal shall be so too, that the act may quadrare with itself; and though it was objected, that by this means the same persons which convicted may be judges likewise upon the appeal, as in corporations where the mayor, it may be, and one alderman are justices, it was said, that upon the appeal the trial is by jury, (see antè, p. 99.), and though possibly such a case might fall out, yet they would not intend any partiality, or favour in the justices.

But in cases of appeals from orders for the removal of the poor, in order that the appeal may not be ab eodem ad eundem, it is provided by stat. 8 & 9 W. 3. c. 30. § 6., that the appeal against any order of removal shall be prosecuted at the general or quarter

sessions for the county, division, or riding, wherein the parish, township, or place, from whence poor person shall be removed, doth lie, and not elsewhere.

(See tit. Poor. See also, as to appeals against poor-rates, the stat. 17 G. 2. c. 38. § 5. 1 G. 4. c. 36., and tit. Poor.)

III. Within what Time an Appeal must be preferred.

The time within which the appeal must be preferred is usually pointed out by the statute. But if no such limits be prescribed, it shall be understood, nevertheless, that the appeal must be within a reasonable time. By Lord Ellenborough, in R. v. Justices of Oxfordshire, 1 M. & S. 448.

months after conviction," the party has the whole three months within which to give notice of ap

peal to the following sessions.

If an appeal to the sessions is given within a prescribed time Where an apafter conviction, and not limited to the next sessions, the party peal is given convicted has the whole of the prescribed time to deliberate, whe-within three ther he will appeal to the then following sessions, and he is not bound to appeal to any sessions which may occur within that time. Thus in R. v. The Justices of Middlesex, 6 M. & S. 279., a rule nisi was obtained for a mandamus, commanding the defendants to hear an appeal against a conviction under the Pilot Act (52 G. 3. c. 39.). It appeared that the appellant was convicted on the 2d of January, and that his appeal was preferred at the sessions in the following April; but the court refused to hear it, on the ground that it should have been made to the preceding sessions, on the 13th of January. By sect. 79. of the act, it is provided that it shall be lawful for persons convicted by any justice of any offence against the act, within three calendar months next after such conviction, to appeal to the justices at the general quarter sessions, first giving ten days' notice of such appeal to the persons appealed against, and of the matter thereof; and, within fourteen days next after such notice, entering into a recognizance before a justice, with sufficient sureties, conditioned to try such appeal. And it was contended, in support of the decision of the sessions, that the appellant ought to have gone to the sessions held within three months after the conviction, i. e. the January sessions; in respect of which he had time, as appears by the date when they were held, to give ten days' notice, and enter into recognizance as required. For although the statute allows fourteen days after notice for entering into the recognizance, this was given as the extreme period which the party appealing should be allowed, without meaning to make it a condition that he should have this entire period on all occasions. And this is a more reasonable exposition of the statute than that which, in order to allow the fourteen days in full, if only one wanting, would let in an appeal after the three calendar months, contrary to the express words of the statute. But the court, without hearing the other side, made the rule absolute. Lord Ellenborough C. J. "I am very unwilling to narrow the benefit of appeal given in express terms by the legislature. To appeal within three calendar months after conviction, is an expression which would create but little difficulty in an ordinary understanding to interpret. It would be understood as meaning that the party should have that entire period for the purpose of appealing. To limit the present appeal to the Epiphany sessions would be to deprive the party of the most considerable portion of