But if previous adjournment, may dismiss the appeal. Appeal dismissed for in sufficient no tice previous to 9 Geo. I. c. 7. Application of this case. But where an appeal is lodged at the next, and respited to the ensuing sessions, the court may dismiss it, unless sufficient notice has been given for the hearing at that sessions, according to its practice. For, although it seems decided, that giving notice is not a condition precedent to entering an appeal, under 17 Geo. III. c. 38. s. 4. and 9 Geo. I. c.7. s.8. (1), yet it appears essential to the final hearing and adjudication, unless the objection is waived. Thus, where there was a mandamus to the sessions to proceed on an appeal, they [i. e. the justices] returned, that the appeal was dismissed for want of six days' notice, which, by a former order, they had appointed to be given of every appeal. The court allowed the return; for they are the properest judges of a point of practice at the sessions, and all courts must have stated rules to go by. (2) Although this case is prior to these statutes, it seems to show the necessity of giving sufficient notice, previous to the second sessions. For the foregoing acts merely enable the justices to adjourn appeals to the sessions after entry. They expressly recognize the necessity of a notice, and refer it to the justices to determine, what notice shall be reasonable to enable the parties to have the appeal heard at the original sessions; and the power of the court upon the subsequent hearing remains as it was antecedent to the statutes, and as it existed at the time of the foregoing decision. (3) When an appeal is properly brought before the court, they must either adjourn the consideration, or proceed to hear and determine it. (1) Ante, 516. & seq. (2) Anon. Trin. 6 Geo. I. 1 Str. 515. (3) See the object of 9 Geo. I. c.7. explained by Lawrence J., Rex v. Justices of Buckinghamshire, ante, 520. (1). SECT. VI. Of adjourning Appeals. c. 7. and cases where no THE usual reason for having appeals adjourned to the Adjournments, under 9 Geo. I. sessions ensuing that at which they are lodged, is on account of the insufficiency of notice. But an adjournment 17Geo.II.c.38., sometimes takes place under other circumstances, notwith- confined to standing the words of 9 Geo. I. c.7. and 17 Geo.II. c. 38., reasonable nothat the justices shall, after an adjournment to the next sessions, for want of reasonable notice, " then and there finally hear and determine the same." This construction seems established by express decision (1); and the practice of the court of King's Bench, in directing courts of quarter sessions to enter appeals, and continue them by fictitious adjournments, admits them to have the like power since these statutes which they possessed before. (2) tice. Other cases of adjournment. Appeals may, therefore, be adjourned by consent of par- 1. Adjourn ties (3), upon assigning a sufficient reason to induce the ments by con (1) Rex v. Stansfield, East, 16 Geo.II. An adjournment of an ap peal against an order of removal. Burr, S. C. 205. An inclosure act gave the parties aggrieved a right of appeal to any quarter sessions to be holden for the county of W. " within four calendar months after the cause of complaint shall have arisen;" and enacted" that the justices at the said general quarter sessions are hereby required to have and determine the matter of every such appeal," &c. Per Lord Ellenborough C. J. "I hold, without any doubt, that the court who are to try the appeal have an undoubted authority to adjourn it when once properly lodged, if it be necessary for the advancement or convenience of justice: and the sessions are to judge of the proper occasion for doing so. But the act of the party himself, in preferring his appeal, must be within the limited time." Rex v. Justices of Wilts. 13 East, 352. (2) Rex v. Langley, 11 W.III. 1Ld.Raym. 481. And as to the prac tice, see Rex v. Justices of Buckinghamshire, ante, 521. (1), and post. (3) Consent of parties, given by themselves or their attornies, binds them in subjects of appeal, and prevents their setting aside in the superior court what has been done under it. See Rex v. Justices of Northampton, Cald. 50. Rex v. Natland, Burr. S.C.796. sent. By justices independent of parties. 1. For consi deration. 2. If equally nion. court to allow it; such as the absence of material witness es, The justices likewise possess a power, as inherent to their jurisdiction, to adjourn them at discretion. Thus they may well adjourn an appeal upon debate, for further consideration. (1) So they may adjourn it where the justices are equally divided in opi- divided in opinion; and it is said, that their being so divided is a sufficient warrant for the clerk of the peace to enter an adjournment, and that it is his duty so to do. (2) 3. To obtain a judge's opinion. Adjournment must not be be yond time of next sessions. May adjourn appeal to an adjournment. There must be justices to hold a sessions to adjourn it. Unless appeal properly adjourned, the They may likewise adjourn it, for the purpose of submitting a question in the case to the judge of assise. (3) An adjournment of a sessions is not to be to a time. beyond that fixed by 2 Hen. V. c. 4. for holding another original sessions (4); but they may respite an appeal to an adjournment of the same sessions, and determine it there. (5) If there are not justices enough to hold a sessions, there are not enough to adjourn it legally; and every act done after such adjournment is void. (6) Except an appeal, therefore, is properly adjourned, the ensuing sessions have no jurisdiction to hear and determine (1) Rex v. Stanfield, infra, (5). Rex v. Langley, ante, 535. (2). (3) Rex v. Hedingham, Burr. S. C. 112. Rex v. Justices of Westmor- (4) Rex v. Grince, 2 Bott. 723. Pl. 807. (5) Rex v. Stansfield, Burr. S. C. 205. ante, 535. (1). Case of appeal against an order of removal. Also Rex v. Justices of Berkshire, 3 Glenb. on Elect. 132. 1 Const. 274. Pl. 288. Appeal against a poor's rate. (6) Rex v. Westrington, 2 Bott. 725. Pl.814. 1 upon it (1); and if it does not appear, upon the caption of next sessions have no juristhe order of sessions, to have been regularly respited, by diction. continuance or adjournment, the court of King's Bench B.R.will quash their order unwill quash the order of sessions as void. (2) less adjourn ment appears in the caption. interfere when But as a neglect to enter the respite of an appeal, after Quære, wheit has been ordered, is an omission by the court or its officer, and no fault in the appellant, it seems hard if he is to be deprived of redress by an error in which he has no share. ther B.R. will the sessions omit to enter the adjourn ment. when no ad In an appeal from an order of removal, the justices were B. R. granted divided in opinion, and no adjournment took place, but an no redress entry was made by the clerk of the peace, that the appeal journment was lodged, and nothing done upon it. One of the parishes made. gave fresh notice of appeal, when the justices proceeded in it, and quashed the order. The court of King's Bench declared, that "If the parties will not consent to quash both orders, we will consider whether we cannot send it down to have the entry of the first order amended." They afterwards quashed the order of sessions, because made without adjournment; but no opinion was given. (3) case, where a similar omis sion, they seemed inclin But in another case, where doubts arose on the hearing But in another of an appeal at the Christmas sessions, and there was a reference to the opinion of the judges who should come the next Northern circuit. The judges came after the ensuing Midsummer sessions, but nothing further had been done at the Christmas sessions, i.e. the appeal was not adjourned. The parties producing different states of the case at the assises, the judges did nothing. A mandamus was moved for to the justices, to proceed to hear and determine this (1) Rex v. Hedingham, Sible, Burr. S. C. 112. Rex v. Polsted, 2 Str. 1262. Rex v. West Torrington. Burr. S. C. 295. Bodmin v. Warlingen, ante, 536. (2). (2) Ut supra, n. (1). As to the necessity of entering continuances in the caption of the order, see post. (3) Bodmin v. Warlingen, ante, 536, (2). ed to grant a mandamus to enter and hear the appeal. Mandamus to hear where ad advertent. appeal. The court inclined to grant the mandamus, if the justices would not proceed, but enlarged the rule for further consideration. (1) Lastly, where an appeal against an order of removal was journment in- regularly lodged at the Michaelmas sessions, 1767, at Petworth, and the justices, upon hearing the cause, conceiving a doubt, ordered a special case to be made for the opinion of the court of King's Bench. The counsel withdrew in order to settle the case, but before they had come to any agreement, the sessions was inadvertently adjourned, and this cause was neither retained nor ended. Upon these facts an application was made to the court of King's Bench for a mandamus, to compel the justices to proceed in the appeal. - By the court. When the justices entertain a doubt, they may, without the consent of the parties, order a special case to be made. When the justices say, as they did here, that a special case shall be made, they virtually say, that the cause shall be adjourned over till a case is made; and, therefore, the want of an adjournment, or a respite, is merely the omission of the clerk, and may at any time be supplied. Let a mandamus go immediately, unless the respondents will consent to a case. (2) Pl. 833. But that a (1) Rex v. Justices of Westmorland, 29 Geo. II. 2 Bott, 726. Pl.816. (2) Rex v. Justices of Sussex, 2 Bott. 745. subsequent sessions have no power to grant a case if it has not been granted at the sessions which hears the appeal, see post, 549. (4) & 558.(4). |
