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was objected, that the appeal ought to have been to the quarter sessions of the county, and not of the borough, by 8 & 9W.III. c. 30. s.6. The court agreed, that the borough sessions had no jurisdiction to make this order of confirmation ; and that, therefore, their opinion and their orders were both nugatory: the appeal ought to have been to the quarter sessions of the county; and as no such appeal had ever been made, the original order stands. The rule to show cause, therefore, why it should not be quashed, must be discharged. (1)
The words and reason of the statute seem also to give Appeals against the appeal to the county sessions, where both the parish, removals taken to and from which the removal is made, is situate within a mited jurisdiclimited jurisdiction. For by Lord Parker, where there tions. is a town corporate, that has sessions of their own, and the justices within that town make an order there, they must appeal to the county sessions, and not to their own sessions ; for then there would be an appeal ab eodem ad cundum, there being (may be) the same justices sitting who made the order. (2)
By 1 Geo. IV. c. 36. in all corporations and franchises 1 Geo.IV. not having more than six justices of the peace, nor having Appeals from jurisdiction or authority over two or more whole parishes, corporations or wards contained within such corporations or franchises, not having six
justices. it shall and may be lawful for any person or persons in any cases mentioned or referred to by 43 Eliz. c. 2. or 17 Geo. 2. c. 38., or either of them, to appeal to the next general quarter sessions of the peace for the county, riding, or division wherein such corporation or franchise is situate, in as
(1) Rex v. East Donyland, Burr. S. C. 592.
(2) The parish of Malden, in Essex, cases of Sett. and Rem. 6. 2 Bott, 725. n. (a), although the Chief Justice's words do not literally comprehend the point in question, yet they evidently refer to it. For when he says, that the parish cannot appeal to their own sessions, he thereby intimates that the parish appealing, i.e. removed to, is situate within the borough. This reasoning scems also strengthened by 16Geo.II. c. 18. s.3., which prohibits justices from acting in the determination of any appeal, relating to any parish, &c. where such justices are charged, taxed, or chargeable. See post.
miesoy on ample a manner as if such corporation or franchise had
not four justices of the peace; provided always, that nothing Excepting herein contained shall be deemed or taken to extend to
any city or town corporate, being a county of itself.
Of entering Appeals; and at what Sessions it must be in
point of Time.
It was observed by Holt C. J., that “it is a regular way, in cases of appeals to the sessions about settlement, to enter the appeal before the two justices that made the order, and they to return the order with the appeal into the sessions :" Powel J. said, they always did otherwise;
however, this would be a good rule. (1) Appeals how
But this rule seems never to have been followed ; and and when entered of course. in modern practice the first step towards enabling the ses.
sions to hear an appeal is, that it be entered by the clerk of the peace in the proceedings of the court. This is done as a matter of course upon the appellant's application, where the appeal is lodged within the time prescribed by
statute, and is to be heard during the sessions at which How entered. it is lodged. It may be entered at the clerk of the peace's
office, before or after the sessions commence. But all courts, for the purposes of convenience, limit a particular time after the sessions are begun, beyond which an appeal is not to be received by the officer, as a matter of course (2), in order to be set down for hearing at that sessions. (3)
(1) Anon, 19 Vin. 355.
(2) The practice of sessions varies in this respect, and has been fixed in general, with a view to the average business of the court. At the Surrey sessions an appeal may be entered at any time before the rising of the court, in the afternoon of the second day of the sessions, which is there the first day of judicial business; the preceding day being Occupied in matters relating to the general police of the county. At the Hereford sessions, the practice is not to receive any appeal after the morning of the day on which the sessions commence. See Rex o, Jus tices of Herefordshire, 3 Term Rep. 504. At the Gloucestershire ses sions they must be entered by twelve o'clock the second day.
(3) That the court are bound to receive the appeal at the next session
Wherever, therefore, an appellant does not enter his In what cases
the court must appeal within the time prescribed by the practice of the be moved for court; or wishes to have it entered, and the hearing re- leave to enter. spited to the ensuing sessions; or to have it entered upon special grounds at a sessions, different from that at which the words of the statutes direct it so to be; he must make a special application to the justices by motion (of counsel where they attend), to dispense with their usual rule in that particular instance.
The rules respecting entering appeals may be reduced to two heads :
I. At what sessions they must be entered. II. Of the remedy to compel justices at sessions to enter and hear an appeal, where they have improperly refused to do so.
I. At what Sessions Appeals must be entered.
under 43 Eliz.
An appeal against a rate might, under 43 Eliz. c. 2. s.6., Against rates, have been made to any general quarter sessions, subsequent appeal might to publishing the rate. (1) The manifold inconvenience of be to apy sessuffering appeals against the same rate to be discussed at sions different periods, and its being liable to be quashed long after the escape from office of those overseers, by whom it' was made, and the assessments collected, made it necessary to alter the law in this particular.
The 17 Geo. II. c. 38. s. 4. therefore enacts, that the
appeal shall be to the next general or quarter sessions of the the the next
fines appeals to peace for the county, &c.
sessions after party aggriev
after the order of removal has been executed, whatever their practice may be in this respect. See Rex v. Justices of Leicestershire, post, 500. Rex v. Justices of Buckinghamshire, post, 515., and the other cases cited there. See also Rex v. Justices of Berkshire, i Const. 274. Pl. 288.
(1) Rex o. St. Giles, 11 Mod. 259, 16 Vin. Abr. 417. S. C. 1 Bott, 264. Pl. 257. ib. 265. Pl. 359.
It was formerly contended, that as this statute neither expressly annulled the 43 of Elizabeth, nor contained negative words from which a repeal must be implied, both might be considered as subsisting together. That as 17 Geo. II. gave costs, the party must appeal to the next sessions, as is required by that statute, to entitle himself to them, but if he chose to forego this advantage, he might still appeal to any other sessions under the 43 Eliz,
The court, however, decided, that the 43 Eliz. c. 2. was repealed in this particular by 17 Geo. II. c. 38. and that the appeal must in all cases be to the next sessions after the party is aggrieved. (1)
Party aggriev. The party is held to be aggrieved, within the meaning ed by making of the statute, by making the rate. He must, therefore, the rate.
appeal to the next sessions after allowance, and publicaAppeal to next sessions after tion, and cannot lie by until called upon to pay the asthe allowance
sessment of which he complains. (2)
In cases of appeals against rates as well as against orders of removal, it has been decided that by the next sessions is meant the next practicable sessions at which an effectual appeal can be lodged. A rate was made on the 5th of October, and published on the next day (Sunday), in the parish church, and the sessions was held on the 8th, being only one intervening day between the publication and the quarter sessions, which appellant swore was too short a time to enable him to inspect the rate, to see whether the inequalities in the former one were continued, and property omitted in former assessments was inserted, so as to enable him to determine whether he should appeal against it. On appeal to the Epiphany sessions, it was
(1) Rex v. Coode, Willes J., contra. Cald. 464. i Bott, 276, Pl. 270. S. C. Rex v. Micklefield, Cald. 507. See also Rex v. Justices of Berkshire, i Bott, 309. Pl. 322. Upon any other construction it would be in the appellant's power to deprive the parish of its costs, which it is entitled to, under 17 Geo. II. c. 41., where the appeal is decided in its favour. See Rex v. Justices of Worcestershire, 5 M. & S. 457., ante. (2) Rex v. Micklefield, supra, (1). Rex v. Atkins, 4 Term Rep. 12.
dismissed then, as being out of time. But the court granted a mandamus to compel the justices to hear it, and asked why the parish officers made their rate so close upon the time of the sessions; it appeared as if they had done it with ą view of ousting the parties of their appeal. (1)
Appeals against orders of removal must be made to the Appealsagainst next sessions after the removal of the paupers under it; tered next ses
removals enfor it is thereby that the parties are aggrieved. (2) Al- sions after the
removal. though it appear, therefore, on the order of sessions, that a sessions has intervened between the date of the original order and that one at which the appeal is entered, yet the court will not therefore quash the latter as not being made in time; for the order may not have been served until after the first sessions (3); and the justices are bound to receive it in all cases when presented at their next sessions after the removal.
A rule was moved for to shew cause why a mandamus Where order should not issue, directed to the justices of the peace for abandoned. the county of Leicester, commanding them to proceed upon the appeal of the inhabitants of Stoke-Golding, against an order removing a pauper, his wife, and four children, from Castle Donnington to Stoke Golding. This was grounded on an affidavit, stating, that the order was made in January last, and notice of appeal given. That the inhabitants of Castle-Donnington, discovering that the woman was not the pauper's wife, and so the children illegitimate, agreed to take the woman and children back, which they did, and the order of removal as to them was considered to be at an end. That afterwards, and before the sessions, a new order was made, removing
(1) Rex v. Justices of Sussex, 15 East, 206.
(2) Rex v. Monks, Risborough, 2 Bott, 714. Pl. 793. Milbrook v. St. John's, Southampton, ib. Pl. 794. Sett. and Rem. 66. Rex v. Norton, 2 Str. 831. Road v. North Bradley, 2 Str. 1168. Rex v. Turley, 1 Sess. Cas. 175. Pl. 215. and see Rex v. Justices of Sussex, 7 Term Rep. 107. post, 502.(1).
(3) Milbrook v. St. John's, Southampton, and the cases cited supra,(2). See i Const. 306.