form of plea, &c. are not adapted to the proceedings in replevin; and though it was truly said that prior to 27 Geo. II. c. 20. a demand of the copy of the warrant might have been made, and notice given with effect to the magistrate before the distress was sold, the time for such sale being then indefinite: yet it is not to be intended that the legislature would have passed that act in a way to defeat the remedy by replevin, had it been supposed that the 24 Geo. II. extended to it. In truth the stat. 27 Geo. II. leaves the question upon the construction of the 24 Geo. II. as applied to a poor's rate, where it was before: for antecedently to 27 Geo. II. a distress taken for the poor's rate under 43 Eliz. c. 2. s.13. might have been sold immediately; and a replevin in such case, in order to serve the party, must have been sued out as soon as possible after the distress made, without waiting for a copy of the warrant, or the giving notice to the magistrate: and from the incongruity between the steps required and provisions directed by 24 Geo. II. and the proceedings in replevin, in addition to the reasons before given, we think it was not intended by the legislature that the provision of 24 Geo. II. c.44. should extend to this action of replevin.” (1)

(1) Fletcher v. Wilkins, 6 East's Rep. 283. Milward v. Coffin, 2 Black. 1330. Pearson v. Roberts, Willes's Rep. 661. See also Wilson s. Weller et alt. 1 Brod. & Bing. 57. Whether goods taken under a warrant of distress, where a magistrate has jurisdiction are irreplevisable.

CHAP. XXXVII.

Of Appeals; from the Entry to the Judgment.

SECT. I.

By what Statutes the Right of Appeal is given against Poor's

Rates, and Orders of Removal.

1st, On rates. 2d, Removals.

THE
HE principal sources of appeal to the court of quarter Appeals.
sessions are, 1st, Rates made for the poor's relief. 2d, Or-
ders of removal. The right, as given in other cases, has
been incidentally noticed, in treating of the particular sub-
ject. But as the manner of conducting all appeals is
nearly similar, the following observations may be consi-
dered as applicable to all, unless where some distinction is
particularly noticed.

The right of appeal against poor's rates, and also against overseers' accounts, was originally given by 43 Eliz. which enacts, "that if any person or persons shall find themselves grieved with any sess, or tax, or other act, done by the said churchwardens, or other persons, or by the said justices of peace, then it shall be lawful for the justices of peace, at their general quarter sessions, or the greatest number of them, to take such order therein as to them shall be thought convenient; and the same to conclude and bind all the said parties."

1st, Appeals given against poor's rates and overseers accounts, given by 43 Eliz. c. 2.

17 Geo.II. C. 38. s. 14.

The 17 Geo. II. c. 38. s.14. enacts, "that in case any Altered by person or persons shall find him, her, or themselves aggrieved by any rate or assessment made for the relief of the poor, or shall have any material objection or objections to any person or persons being put on or left out of such rate or assessment, or to the sum charged on any person or persons therein, or shall have any material objection to such account as aforesaid, or any part thereof, or shall find

2d, Appeals against removals.

him, her, or themselves aggrieved by any neglect, act, or thing done or omitted by the churchwardens or overseers of the poor, or by any of his majesty's justices of the peace; it shall be lawful for such person or persons, in any of the cases aforesaid, giving reasonable notice to the churchwardens or overseers of the poor of the parish, township, or place, to appeal to the next general or quarter sessions of the peace for the county, riding, division, corporation, or franchise, where such parish, township, or place lies and the justices of the peace, then assembled, are hereby authorized and required to receive such appeal, and to hear and finally determine the same, &c.

The right of appealing against an order of removal is given by 13&14 Car. II. c.12. s. 2., 3 & 4 W. & M. c.11. s.9. 10., 8&9W.III. c. 30. s. 6.

1st, Who may appeal against

rates.

Alteration un

C. 38.

SECT. II.

Of the Grounds for appealing. What Persons may appeal; and who may join therein.

I. Against a Rate.

THE 43 Eliz. c. 2. gives the right of appeal only to persons aggrieved by the rates: that is, to all who are rated and aggrieved, either by an over-rate of their own property and ability, or by an assessment disproportioned to that of other inhabitants and occupiers of property within the parish or township for which the rate is made.

But the 17 Geo. II. c. 38. allows the right of complaint to der 17 Geo. II. all " who shall have any material objection or objections to ́any person or persons being put on or left out of such rate or assessment, or to the sum charged on any person therein."

This act, therefore, extends the grounds of appeal beyond those allowed by 43 Eliz. c. 2. They are pointed

says,

out by Lord Mansfield as follows: The 17 Geo. II.
that where there is a franchise to be enjoyed, a man shall
not be left out to deprive him of his franchise. Now, that
act does not say that every man shall be rated, whether
able or not; and it is a good defence to a rate to say, that
he is poor and unable to pay; and you may object against
a man who wants fraudulently to be rated to gain either a
settlement or a franchise. (1) But no person can sustain
an appeal against a particular mode of rating other pa-
rishioners, if he does not sustain some injury thereby. (2)

Who may join in appeals against rates.

All occupiers, jointly interested in the subject matter of an appeal against a poor's rate, may join in preferring it to the sessions. (3) But it is otherwise, perhaps, where the grounds of appeal arise out of distinct property, as they affect the several appellants, and originate from causes altogether distinct and personal. It seems, however, rea- Against oversonable, that as many of the parish as chuse may join in seers' acan appeal against overseers' accounts; for their grievance originates from the same source, and may be heard and redressed by one judgment. (4)

counts.

One appeal against four different rates has been held Several rates sufficient. (5)

(1) Rex v. Uffculme, 2 Const. 3d edit. 233. Pl. 262. Burr. S. C. 431. (2) 41 Geo.III. c. 23. sect. 4. recognizes the right of several persons to join in a notice of appeal, see post, this chap. 524., and in Rex v. Coode, et alt. Cald. 464. several inhabitants joined. And where the cause of appeal was the omission of certain persons in the rate, it was held that several might join in one notice of appeal, for it is a joint grievance affecting all the appellants in an equal degree. Rex v. White, 4 Term Rep. 771. Rex v. Justices of Sussex, 16 East, 206.

(3) Rex v. Brown, 8 East, 528. ante, Vol.I. 180. (3).

(4) This seems to have been done, and no objection taken. Rex v. Welch et alt. Cald. 504.

(5) Rex v. Justices of Suffolk, 1 B. & A. 640. By a local act, the management of the poor of a town was vested in certain persons, who were empowered to make rates, and an appeal was given to the party aggrieved against every such rate to the town sessions, and a further appeal to those of the county. An appeal against four rates was entered at the town sessions, and four grounds of appeal specified in the notice, one

included in one appeal.

2d, Who may

removals.

II. Against an Order of Removal; and the Suspension

thereof.

The parish to whom the removal is made, is empowered appeal against by the statutes already cited (1) to appeal against it. But it has been determined, that the party who is removed may appeal, as well as the parish. (2)

Who parties

to the same appeal.

Of appeals against suspended orders.

It seems also that more than two or more parishes may be parties to an order of removal, and so by consequence to an appeal therefrom; and the appeal of any one parish brings the others before the sessions. (3)

35 Geo. III. c.101. s. 2. provides, that if the parish officers of the parish, &c. to which the order of removal is made, shall, upon the poor person's removal or death, refuse or neglect to pay the charges proved on oath to be incurred by the suspension, and by the justices ordered to be paid "within three days after demand thereof, and shall not within the said time give notice of appeal, one justice may by warrant order the money to be levied by distress, &c., provided that if the sum so ordered to be paid on account of such costs and charges exceed 204., the party or parties aggrieved by such order may appeal to the next general quarter sessions against the same, as they may against an order for the removal of poor persons by any

do

of which was that the party was rated in respect of his lands in higher
proportion than all the other inhabitants mentioned in the rate. The
appellant being dissatisfied with their determination, made a further
appeal to the county sessions, adding two other grounds of appeal. The
court held, 1st, That one appeal against the four rates was sufficient.
2d, That it was not necessary to give notice of appeal to all the inhabit-
ants named in the rate. 3d, That the appellant must be confined at the
county sessions to the original grounds of appeal at the town sessions.
(1) Ante, 486.

ர

(2) Rex v. Hartfield, Carth. 222. Per Holt C. J., Weston Rivers . St. Peter's Marlborough, 2 Salk. 492.

(5) Rex v. Colliton, Carth. 221., with proper notice. But orders of this sort seem to have gone into disuse, if they were ever much practised.