8 & 9 W. III. transfers appeals to the county sessions in limited ju risdictions. Order confirm ed by borough This act (1) also takes away from limited jurisdictions the power of hearing appeals against orders of removal, given them by 3 & 4 W. & M. c.11. s.10. So that now all appeals against orders of removal, made by magistrates of a limited jurisdiction, must be to the next sessions for the county, riding, or division, in which the place is situated from which the removal is made. (2) Two justices of St. Alban's (which is a limited jurisdiction) made an order of removal to Wendover, which was confirmed upon appeal to the quarter sessions of St. Alban's. The court of king's bench quashed the order of sessions, because the appeal ought to have been to the sessions of the county, and not of the corporation. (3) And an order made at sessions upon such an appeal is so much a nullity, that it cannot be rendered valid by the appearance of the respondents at the borough quarter sessions, their entering into the merits of the question, and settling a case for the opinion of the court of king's bench. Two justices for the borough of Colchester made an order to remove three paupers from St. Giles in Colchester, to East Donyland in Essex; East Donyland appealed to the quarter sessions of the borough of Colchester, and they confirmed the order, and stated a special case. It (1) 8&9 W. III. c. 30. (2) The reason why the jurisdiction, allowed to the magistrates of borough sessions in appeals against poor rates, is taken away from them, in appeals against orders of removal, seems to be, that the allowance of rates being a ministerial act, they do not, in the case of a rate, sit in revision upon what they have themselves done. But an order of removal is a judicial act, in which they must do so, when deciding upon an appeal against it. See Reg. v. Malden, post, 495. (3) Rex v. Wendover, 13 W.III. 2 Salk, 490. 2 Bott, 715. Pl. 792. The jurisdiction of the justices of the liberty of St. Alban's is reserved by sect. 8. of 8 & 9 W. III. c.30.; so that this seems to have been an appeal against an order of removal, made by justices of the corporation, of the town of St. Alban's. was objected, that the appeal ought to have been to the quarter sessions of the county, and not of the borough, by 8 & 9 W. 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 away from lito 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 eundum, there being (may be) the same justices sitting who made the order. (2) c. 36. Appeals from justices. By 1Geo. IV. c. 36. in all corporations and franchises 1 Geo. IV. not having more than six justices of the peace, nor having jurisdiction or authority over two or more whole parishes, corporations or wards contained within such corporations or franchises, not having six 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.5., 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. sample a manner as if such corporation or franchise had Anot 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. counties. Appeals how and when en tered of course. SECT. IV. Of entering Appeals; and at what Sessions it must be în 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) But this rule seems never to have been followed; and in modern practice the first step towards enabling the sessions 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 Po 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 (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 v. Justices 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 appeal within the time prescribed by the practice of the court; or wishes to have it entered, and the hearing respited 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. In what cases the court must be moved for leave to enter. sions. AN appeal against a rate might, under 43 Eliz. c. 2. s. 6., Against rates, have been made to any general quarter sessions, subsequent under 43 Eliz. appeal might to publishing the rate. (1) The manifold inconvenience of be to any sessuffering appeals against the same rate to be discussed at 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 peace for the county, &c. after the order of removal has been executed, whatever their practice Repeals 45 Eliz. C. 2. Party aggriev the rate. 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) The party is held to be aggrieved, within the meaning ed by making of the statute, by making the rate. He must, therefore, appeal to the next sessions after allowance, and publication, and cannot lie by until called upon to pay the assessment of which he complains. (2) Appeal to next sessions after the allowance 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. 1 Bott, 276, Pl. 270. S. C. Rex v. Micklefield, Cald. 507. See also Rex v. Justices of Berkshire, 1 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. |
