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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.
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 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 ap-nes appeals to peal shall be to the next general or quarter sessions of the the the next peace for the county, &c.
after the order of removal has been executed, whatever their practice
sessions after party aggrieved.
45 Eliz. C. 2.
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 was repealed in this particular by 17 Geo.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 next 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)
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
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 a view of ousting the parties of their appeal. (1)
Appeals against orders of removal must be made to the next sessions after the removal of the paupers under it; for it is thereby that the parties are aggrieved. (2) Although 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.
Appeals against tered next sessions after the
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. 795. 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 supră,(2). See i Const. 306.
Next sessions which.
1. Next ses
sions means the first original sessions after
the woman and children from Castle Donnington to Sibston, against which Sibston appealed, when the sessions were of opinion, that the former order of removal not having been regularly appealed from, and quashed, was conclusive on Stoke-Golding, and for that reason were proceeding to quash the second order of removal to Sibston. That the attorney for Stoke-Golding happening to be in court, then desired that their appeal against that first order might be heard; but the justices refused it, though it was the first session after the order made. He then proposed that the sessions should permit the case to be stated for the opinion of the court of King's Bench, whether the first order, under these circumstances, was conclusive? but this was also refused. Cause was shewn against this rule, on the ground that it is the custom at Leicester for all appeals to be entered on the first day of the sessions; but this appeal was presented afterwards ; and the parish of Castle-Donnington agreeing to take the party back was nothing. Mr. Justice Buller said, they ought to have proceeded on the appeal: they were bound to receive it: it was presented at the next sessions.-Per Cur. Rule absolute for a mandamus. (1)
But although by the next sessions, to which the statutes require appeals to be made, both against rates and orders of removal, are meant those which happen next after the party is aggrieved, still distinctions must arise as to what shall be considered the next sessions. For a cause of appeal may arise after a sessions has commenced, and before its termination. Or it may occur so immediately upon the eve of a sessions, as to render it impossible for the party to lodge it in due time. (2)
Upon the first point it has been held, that the appeal must be to the first original quarter sessions after the party is aggrieved; and, that where a sessions commenced before
the cause of complaint accrued, and was afterwards continued by adjournment, the appeal should be entered at the ensuing sessions, and not at such adjournment. (1)
Thus, an order made "at the next general quarter sessions The comheld by adjournment" was quashed; because it did not ap- original sespear that this was the next general quarter sessions, for it sions must apmight be that the general sessions was begun and continued pear in their by adjournment before the order was made. (2)
There are two divisions (though not legally recognized), Appeals where the eastern and western, in the county of Sussex, and county has two but one commission of peace for the county; the quarter sessions are always held, first, in the western, and afterwards adjourned into the eastern division. The sessions commenced in the western division on Tuesday. The removal in question was made on the Wednesday, 13th July, into the parish of Peasmarsh, which is in the eastern division, the adjournment day into which was on the Friday following. The appeal was not lodged at the sessions, but was preferred at the next October sessions, held by adjournment in the same eastern division. The court of quarter sessions was of opinion, that the adjournment sessions in July was the next possible sessions, at which the appeal ought to have been preferred, and that they had no jurisdiction to examine the merits afterwards. Lord Kenyon, C. J.-" The convenience and justice of the case are so obviously in conformity with the strict letter of the statute, that there can be no doubt on the proper construction of it. There is but one commission of the peace, and one quarter sessions, held for the county in each quarter; although for convenience, the magistrates hold the sessions, first in one part of the county, and then
(1) S. P. as to appeals against orders of filiation and maintenance, ante, 309. The sessions, while it continues, is in law considered as but one day; and the continuance from day to day need not be set out. See post. If, therefore, the cause of appeal arise (as above mentioned) after the session has commenced, that session can have no jurisdiction to entertain such appeals. See infra, (2).
(2) Reg. v. Hindercleave, 19 Vin. Abr. 336. 2 Bott, 714. Pl. 795.