clear days previously to the commencement of the sessions: that due notice having been given for the Easter sessions, the appeal was according entered, but the court refused to hear the appeal, on the ground that it ought to have been entered at the Epiphany sessions, and respited until the next sessions.

Park and Lawes shewed cause, and relied on the affidavit of Charles John Lawson, Esq. clerk of the peace for the county of Surry, which stated, that by the course and practice of the several quarter sessions held for the said county, (which sessions are always adjourned for a certain time,) appeals on orders of removal of a pauper may be and are lodged at any time during the sitting of the next general quarter sessions, or at the adjournment thereof, held after the making any such order, without notice thereof being given to the respondents; and that the consideration of such appeal is thereupon adjourned to the next general quarter sessions after that iu which it is so lodged as aforesaid. And further, that the last Epiphany general quarter sessions of the peace for the said county commenced on the 12th of January 1813, and lasted fourteen days, when 0.5 the same was adjourned to the 2d of February following, (which adjournment lasted one day,) and again adjourned to the 1st of March then following, which adjournment lasted two days. It was stated also, that Newington, where the Epiphany sessions were holden, was distant only eight miles from Mortlake. They admitted, that the words of the stat, 13 & 14 Car. II. c. 12. s. 2. which directs the appeal to be at the next quarter sessions, meant the next possible sessions (1); but in the present case, adverting to the prac tice as set forth in the affidavit of the clerk of the peace, the Epiphany sessions must be considered as the next possible sessions; for it appeared, that the appeal might have been lodged at any time during the sessions, or adjournment thereof, without notice to the respondents. [Bayley J. How can parties who live in distant counties know what

(1) Rex v. Justices of Yorkshire, Dougl. 192. 4th ed.

.ba

the practice is?] The appellant parish was in Surry; and, therefore, must be presumed to be cognizant of the practice. The facts of the present case are stronger than they were in Rex v. Justices of Herefordshire (1), where a similar application was refused; for there the sessions were holden at Hereford, twenty miles distant from the parish to which the party was removed; here the distance was only eight miles. Besides, in that case the practice was, not to receive any appeal after the first day; whereas, at the Surry sessions, the second day of the sessions is the first at which an appeal can be lodged; and, in addition to this, there is always an adjournment, which does not prevail in other counties; so that here the party had an opportunity not only of entering the appeal during the original sessions which continued fourteen days, but also at either of the two adjourned sessions, the last of which were holden as late as the 1st of March.

Nolan in support of the rule relied on Rex v. Justices of London. (2)

Lord Ellenborough C. J.-The statute does not contemplate the continuance of the sessions. It says "at the next quarter session" without adding the words "or some adjournment thereof." It takes the sessions as the only period of time, and they are always considered in law as one day, to whatever time they may by accidental causes be extended. The appellant parish ought to have reasonable time allowed for considering, whether they will appeal or not. We are of opinion that the interval between the 11th and 12th of January was not sufficient for the purpose. Bayley, J. referred to Rex v. Justices of Flintshire.(3) Per Curiam. Rule absolute. (4)

(1) 5 Term Rep. 504.

(2) 15 East, 632.

(3) 7 Term Rep. 200.

(4) Rex v. Justices of Surrey, 1 M. & S. 479. See Rex v. Justices of Dorset, 15 East, 200., and Rex v. Justices of Sussex, ib, 206.

It seems also where an appeal is prevented from being heard at the next sessions, by agreement between the parties, in expectation of their difference being settled in another way, that the appeal may be entered at the ensuing sessions.

Entry allowed not entered at when appeal the next sessions, by agreement to refer.

Reference to

pothetical, and

not given upon the parties' statement.

On a removal from W. to P. it was agreed by the officers of both parishes to refer the case to the opinion of counsel's opinion, which counsel, provided it was given on or before the 14th of turned out hyJanuary, the sessions beginning on the 15th. The opinion was given on the 10th, but was not decisive, the settlement being made to depend upon a fact not stated in the case. On that day the officers of W. told those of P. that the opinion was not decisive, and they must enquire into the fact referred to. At the sessions on the 15th, no appeal was entered. At the Easter sessions P. appealed. The justices at sessions refused to enter it, as a sessions intervened since the removal. On a motion for a mandamus to compel them to do so, it was argued, that under the agreement the opinion was in favour of P. and was conclusive; and that P. had been prevented from appealing, in consequence of the objection made, not having been 'raised previous to the Epiphany sessions. Lord Mansfield. As both parties had agreed that this question should be submitted to counsel, and that his opinion should conclude, though the court does not agree with him in point of law, they would not, had the opinion been positive, have granted the mandamus. But the opinion was hypothetical only, and upon a state of facts at the time not settled, and submitted to by the parties. The case, therefore, might be considered as open to the interposition of the court. But the merits appearing clearly against the party applying, the court, to prevent further litigation and expence, refused the rule; and on account of some misconduct with respect to the affidavits laid before the court, on the part of the prosecutors, discharged it with costs out of pocket. (1)

(1) Rex v. Justices of Devonshire, Cald. 32. 2 Bott, 718. Pl. 800. As to how far the entry is affected by a neglect to give reasonable notice, see post, sect. 5.

ment.

Appeal not enA rule was obtained to shew cause why a mandamus tered by agree- should not issue to the defendants, commanding them, at their next general quarter sessions, to receive, proceed upon, hear and determine, the appeal of the churchwardens, &c. of the parish of North Bradley, against an order for the removal of Jacob Smith, his wife, and children, from Westbury to North Bradley. The affidavits stated, that by one of two general orders, both dated 3d Dec.1800, John Smith and his wife, and by the other, Jacob, their son, his wife and children, were removed from W. to N. B. That two notices of appeal were given by N. B. against these orders, for the then next quarter sessions, to be holden the 13th Jan. 1801. That one of the overseers of N. B. instructed his attorney to consent, on the part of N. B. that as both parishes were assured that the settlement of the son and his family was derived from the father, the appeal against the son's order should not be heard, but that it should be governed by the determination of the sessions as to the father's settlement. That accordingly admissions in writing were entered into by both parishes to that effect; and that the attorney for W. desired that the appeal against the order for the son's removal might not be entered, to save expence. That N. B. parish, relying on the faith of such admission, only caused an appeal against the order for removing the father to be entered. And such appeal was accordingly tried, and the order quashed. That soon after the sessions, the parish officers of W. in breach of their agreement, sent the son and his family to N. B. who gave fresh notice of appeal to W. and also served the parish officers with notice to appear at the next sessions, to shew cause why the admission before entered into by their attorney should not be confirmed. That N. B. appeared at the next session, on the 1st April, and moved to enter and try the appeal, when the court of quarter sessions refused to interfere, alleging that it was not their practice to receive any appeal, if not entered at the sessions immediately following the order of removal; and that they could not notice any private agreement by the parties. The affidavits against the rule admitted the notices of appeal

against both orders, and the subsequent agreement to let
the son's settlement depend on that of the father, in order
to save expence; but stated, that at the conference between
the two attornies, N. B. acknowledged that the father was
once settled with them, by service under indentures of ap-
prenticeship, and the only question was, whether he had
gained a subsequent settlement by purchase in W. But
that upon the trial of the appeal, N. B. refused to admit
the indentures of apprenticeship, and consequently the
merits of his appeal were not entered into: on which ac-
count W. parish refused to admit the son's settlement.
On showing cause against the rule it was insisted, that it
appeared from the correspondence between the parties (1),
&c. that requiring proof of the indentures at the sessions
was a departure from the agreement between parishes: the
real subject of dispute being only as to the subsequent settle-
ment in W. which alone W. came prepared to disprove.
That N.B. having taken this undue advantage at the sessions,
W. ought not to be bound by the event of an appeal which
was not decided on the real merits of the question. But
the court said, the application was a reasonable one,
they ought to grant it. The parish officers of N. B. were
prepared to enter their appeal at the proper time, and were
only prevented from doing so by the agreement of the other
parish, which then rendered it unnecessary. No fault was
imputable to them; the mandamus, therefore, should go to
the justices, to receive and enter the appeal nunc pro tunc,
and enter continuances. (2)

and

II. Of the Remedy to compel the Justices, at Quarter Sessions, to receive and hear an Appeal.

The remedy, as appears by the foregoing cases, is by Remedy by mandamus, directed to the justices of the county, or cor- mandamus, to compel ses

(1) Certain letters were set out on the affidavits as well as various