Mandamus to enter and hear an appeal granted.

,

On a rule for a mandamus to the defendants, to receive an appeal against an order of removal, it appeared that the order was dated on the 24th of September last, and executed on Monday the 3d of October, at 4 o'clock in the afternoon at Leek, which was at the distance of 54 miles from Mold, where the Flintshire sessions were holden, on Thursday the 6th of October. No appeal having been entered at this sessions, the justices at the January sessions refused to receive it, though it was stated to them, and now verified by affidavit, that the overseer of Mold, who con veyed the paupers to Leek, could only speak the Welsh language, and that the overseer of Leek, who received them, could not understand him; that near a week elapsed before the parish of Leek could gain any information respecting the settlement of the paupers, and consequently that they were not in a situation to appeal at the next Michaelmas sessions.

In shewing cause against this rule, an affidavit was produced in answer, in which it was stated, that the overseer of Mold, when he conveyed the paupers to Leek took one Price with him, for the purpose of explaining the circumstances of the case, and when parting, said, "he must make the best of his way home to attend the sessions at Mold:" it was also stated, that the order of removal was not executed before the 3d of October, on account of the resistance and threats of the pauper. Lord Kenyon, C. J.-"We ought not to decide hastily against the words of an act of parliament; but some reasonable time ought to be given the parish appealing, to enable them to enquêre whether or not it will be proper to enter an appeal. In this case the order of removal, which was made on the 24th of September, was kept in the overseer's pocket until the eve of the sessions, and was then executed at the distance of more than thirty miles from the place where the appeal was to be lodged. And though the sessions were holden at Mold on Thursday, in general they were holden on Tuesday, and the overseers of Leek might fairly have conceived that the sessions for Flintshire would be holden

on the very next day after the order was executed. Under these circumstances, therefore, I think that the justices at the following sessions, in January, ought to have received the appeal." (1)

Order of removal served at twelve in the forenoon of Sunday not

Saturday, the sessions were held thirty-seven miles from reckoned. the appellant's parish on the following Tuesday; the court held them entitled to appeal to the subsequent sessions; for the officers must have reasonable time allowed them to make the necessary enquiries, that they may judge of the propriety of appealing; they were not bound to devote Sunday to this purpose, and therefore had only one entire day to consider, which was insufficient; and although they could have entered and respited their appeal, that might be incurring an useless expence without conferring any benefit upon either party, and was therefore unnecessary. (2)

refused.

But where an order was made four days before the Mandamus sessions commenced, and the sessions lasted three days more. The contending parties were not more than ten miles from each other, and the place of the sessions not above eight miles from the party complaining. A mandamus being moved for, Lord Mansfield, C. J.-The single question is, whether the sessions have done wrong, in (3) admitting the excuse offered for not appealing at the next sessions after the order of removal. For all the facts of imputation thrown out against the removing parties are out of the case. Whether there is a sufficient time for appealing, must depend upon the facts of every case. Here the two contending parishes, and the place where the sessions were held, were within ten miles or thereabouts. It is said the parish wanted to know if the wife of the pamper was settled with him, which depended upon the

(1) Rex v. Justices of Flintshire, 7 Term Rep. 200..

(2) Rex r. Justices of Essex, 1 B. &A. 210.

(5) So in all the editions of Mr. Const's work, but the sense seems to require that it should be read" in not admitting.

Mandamus refused.

age of him; a fact they might have known in less than half an hour. Here the parish officers were negligent.· Rule for the mandamus discharged. (1)

Likewise, on a rule to shew cause why a mandamus should not issue to the defendants, to receive an appeal against an order of removal. It appeared that the order was made on Friday, the 18th of April; on the 19th, the pauper was removed; and on the Tuesday following, the 22d, the Easter sessions were held at Hereford, 20 miles distant from the parish to which the party was removed, at which sessions it is the practice not to receive any appeal after the Tuesday morning. The parish not having appealed at those Easter sessions, the justices at the Midsummer sessions refused to receive the appeal, because not made at the next quarter sessions, according to 13 & 14 Car. II. c. 12. s. 2. The foundation of the application was, that as the officers of the parish to which the pauper was removed had not sufficient time to convene a meeting of the inhabitants, in order to take their opinion upon the subject, whether there were any grounds for the appeal, the Midsummer sessions were the next possible sessions. Lord Kenyon, C. J.-The words of the act of parliament are very strong, and they require the appeal to be made at the next sessions after the grievance. Where, indeed, an order of removal has been made some time before, and only executed a very short time before the sessions, so that there was no possibility of appealing to those sessions, this court has interfered by granting a mandamus, to compel the justices at the following sessions, to receive the appeal, because the words 66 next sessions" mean "the next possible sessions." But this is a very different case, for there were two intervening days after the execution of the order, and before the Easter sessions; and if there was not sufficient time before those sessions to give reasonable notice of appeal, the appeal might have been then entered, and adjourned,

(1) Rex v. Justices of Wilts, 2 Bott, 717. Pl. 799,

according to the statute 9 Geo. I. c. 7. s. 8. Rule discharged. (1)

་་་

An order of removal from a township in W. R. of Yorkshire, to a parish in Middlesex, was executed on 12th January, the Yorkshire Epiphany sessions were on the 18th of that month. An appeal was offered to be entered and respited at the Easter sessions following, but no notice was given that the parish was then ready to try the appeal. The sessions refusing to receive the appeal, the court of B. R. thought that the parish was not strictly entitled to pass over the first sessions, and though, if they had done as much as they ought to have done at the second, the court would have relieved them, yet not having done so, by placing themselves in a situation to be then heard, there was not sufficient ground for granting a mandamus. (2)

When neces

and try.

sary to enter

Practice of

session not sufficiently promulged.

The Appellant's attorney was applied to by the parish Mandamus. officers of Storeston on the 19th of April, to enter an appeal against an order of removal, and get it respited till the next sessions, and he gave notice to the respondents, of the appeal and respite. At the next sessions, which were on the 26th of April, an appeal was entered, and respited to Midsummer sessions, held the 26th of July. On the 2d of July, the appellant's attorney learned, for the first time, that the sessions had made certain rules for their practice, which were not published till after the April sessions, nor acted upon, nor officially circulated till the Midsummer sessions, and required, that in all kinds of appeals, the notice of trial should be given in the week on or before the Monday in the week next before the sessions, otherwise to be deemed insufficient, and that the like notice should be given in the case of respited appeals. Notice of trial was served on the respondents on Tuesday, the 5th of July, at

(1) Reg. v. Justices of Herefordshire, 3 Term Rep. 504.

(2) Rex v. Justices of West Riding of Yorkshire, 4 M. & S. 5327. As to when they need not enter and respite, see Rex v. Justices of Essex, ante, 505. (2).

six in the morning, dated the day before, being as soon as the signatures of the parish officers could be obtained. On the hearing of the appeal at the July sessions, the respondents objected, that the notice had not been given in time; when the appellants applied to the court for an adjournment under these circumstances, offering to pay the costs of the day, but the court refused it, thinking they had no power to do so. Upon a motion for a mandamus to the justices to enter continuances, and hear the appeal, the court of King's Bench were of opinion that the magistrates had a discretion to exercise, with respect to what was a reasonable time for giving notice of appeal, but the court had a kind of visitatorial jurisdiction over them, in the exercise of that power; and as the sessions had recently made a new mode of practice, of which the appellant's attorney not having knowledge, conformed himself to the former practice, it would be too much to exclude the appellants from having their case heard. (1)

Rule on defendants to shew cause, why a mandamus should not issue, commanding them to receive an appeal against an order of two justices, by which George Kellaway and his family were removed from Richmond to Mortlake, both in the county of Surry.

The application was founded on the affidavit of one of the parish officers of Mortlake, which stated, that the order of removal dated on the 11th January then last, was executed in the afternoon of that day: that the sessions for the county of Surry began on the next day, viz. the 12th January; and that there was not sufficient time to procure any information respecting Kellaway's settlement, or the requisite evidence to support an appeal, or even to ascertain whether such appeal ought to be made: that, according to the practice of the sessions in the county of Surry, notice must be served on the respondent parish by the appellant of their intention to try such appeal, at least six

(1) Rex v. Justices of Wiltshire, 10 East, 404.