sions to enter porate place, who have jurisdiction to try the appeal, commanding them to receive and hear it. (1)

and hear.

What neces

the motion.

The first proceeding is by motion in the court of king's bench, for a rule to show cause why the writ should not issue.

This motion is grounded upon affidavits, stating such sary to warrant facts as are supposed to warrant the application to the superior court; one of which must be, that the sessions have been previously applied to, and refused to receive it.

The rule to be

If a rule to show cause be granted, it is served upon some of the magistrates who have attended at the sessions (2); and also upon the parties who were made reparties inter- spondents by the intended appeal.

served on justices who refused at sessions, and on

ested.

Practice in

shewing cause against the

rule.

Costs.

Both, or either, may appear by counsel, on the day appointed in the rule. They show cause either on the prosecutor's affidavits, or by affidavits of their own, stating facts to vary the case, or contradicting those which have been sworn to on the part of the prosecution. The court will not grant the rule, if the merits of the case are clearly against the party applying; and they have obliged him to pay the costs out of pocket, where misconduct appeared with respect to his affidavits. (3)

If he succeeds in making the rule absolute, it is usual for the magistrates to receive and hear the appeal, without putting the prosecutor to sue out the writ. (4)

(1) If the sessions refuse to receive an appeal against a rate, the court will grant a mandamus to compel them. Rex v. Overseers of Weobly, 1 Bott, 265. Pl. 262.

(2) Usually the chairman and three justices who are placed nearest to him in the caption of the sessions.

(3) Rex v. Justices of Devonshire, Cald. 54. ante, 511. (1)

(4) As to where the justices think proper to make a return to the mandamus, and the proceedings thereon, see ante, Vol. I. 58., and the addenda.

at the sessions

It is likewise necessary that the sessions should enter the Form of entry appeal, as of the sessions, when it ought to have been pre- where made sented, and continue their jurisdiction by fictitious entries at a sessions of adjournment from that session until the sessions at which after the next. it is heard. (1)

The jurisdiction of the superior court extends no further than to compel the justices in sessions to enter and hear the appeal. It can neither prescribe what evidence they shall receive, nor what judgment they shall give. (2)

SECT. V.

Of Notice of Appeal.

process.

In appeals, no process is issued by the court to compel A notice supthe respondent's appearance. A notice by the appellant is plies the use of given in lieu thereof, which, if it be duly served upon the former, and he neglects to appear, the court, upon proof thereof, will proceed to hear and determine the case, notwithstanding his absence. Notice of appeal, therefore, And of a stateoperates not only in the nature of process, but likewise appellant's resembles the declaration in a civil action, or the indict- complaint. ment in a criminal proceeding. It contains a statement It must contain it, of the party's complaint, to the proof of which he is confined at the hearing of his appeal. In most cases therefore it should be so framed, as not only to enable the opposite party to understand what it is that he must come in adn defend, but also to let the appellant into proof of all such points as he thinks material to sustain his case. (3) But when it is made against an order of removal, nothing more is necessary than to describe with sufficient certainty the order or orders which are the subject of the appeal.

(1) See Rex v. Justices of Buckinghamshire, 3 East, 342. Rex v. Yarpole, 4 Term Rep. 71. Rex v. Polsted, 2 Str. 1262. Rex v. Justices of Wiltshire, ante, 513.

(2) Rex v. Justices of Caernarvon, 4 B. & A. 86., and the cases cited, post, sect. vii., and chap. xxxviii. s. 1.

(3) See post, 521, &c.

Verbal notice.

How regulated

in form.

1st, Statutes affecting it, &c.

17 Geo. II.

c. 58. appeal against rates on giving reasonable notice.

Where a statute which gives an appeal does not require the notice to be in writing, it seems sufficient to give it verbally (1), and, although it requires reasonable notice to be given, this does not necessarily mean that the notice should be in writing, but only that as to time or number of days it should be reasonable. (2)

A notice is regulated partly by statute, and partly by the custom and practice of the session before which the appeal is made. It may be considered under the following heads: 1st, How far it is regulated by statute, and whether the right of entering an appeal is affected thereby. 2d, Of its form. 3d, The time and manner of service, and upon whom it is to be served. 4th, The effect of notice upon the hearing of the appeal.

1st, As to the statutes, and how far the right of entering an appeal is affected by a neglect of giving notice.

The notice of appeal against poor rates, and overseers' accounts, is regulated by 17 Geo. II. c. 38. s. 4., and 41 Geo.III. c. 23. (3); 50 Geo. III. c.4. that against orders of removal by 9 Geo. I. c.7. s. 8. and 35 Geo. III. c.101.

s. 2.

The 17 Geo. II. c.38. makes it lawful for any person aggrieved, "giving reasonable notice to the churchwardens," &c. to appeal "to the next general or quarter sessions, who are hereby authorised and required to receive such appeal, and to hear and finally to determine the same; but if it shall appear to the said justices that reasonable notice was not given, then they shall adjourn the said appeal to the next quarter sessions, and then and there finally hear and determine the same." (4)

(1) Per Bayley J. Rex v. Justices of Salop, 4 B. & A. 626.

(2) Per Abbott C.J. Rex v. Justices of Surrey, 5 B. & A. 559. See also Rex v. Justices of Essex, 4 B. & A. 276.

(3) This act respects the form of the notice, and is to be considered under that head.

(4) See post, 518.

against remov. als not pro

ceeded on un

less reasonable notice garen.

The 9 Geo. I. c.7. provides, that no appeal from any 9Geo. I. c.7. order of removal shall be proceeded upon in any court of quarter sessions, unless reasonable notice be given by the churchwardens or overseers of the poor of the parish or place, who shall make such appeal to the overseers of the parish or place from which such poor person or persons shall be removeable; the reasonableness of which notice shall be determined by the justices of the peace at the quarter sessions to which the appeal is made; and if it shall appear to them that reasonable time of notice was not given, then they shall adjourn the said appeal to the next quarter sessions, and then and there finally hear and determine the same.

These acts vary from each other in phraseology. The first point that occurs is, whether the appellant is bound to give any, and what, notice previous to lodging his appeal against a poor rate (1). And it seems, from the words of the statute, from analogy to the case of removals, and also from the authority which is to be found upon the subject, that he is under no obligation to do so; but that if he gives reasonable notice before the appeal is heard, that is sufficient. And the justices are the sole judges whether the notice given is reasonable or not. (2)

(1) The 41 Geo. III. c. 23. s. 4. regulates the form of the notice, but is silent as to the time when it is to be given.

(2) On a motion to quash two orders made by the justices of peace of Berkshire at their quarter sessions, on an appeal against the poor's rate; one objection was, that it appeared that notice of the appeal was not given till the day before the sessions began, whereas there should have been eight days' notice by the practice of the sessions: that the justices, with a view, perhaps, to supply the defect of notice, adjourned the appeal by the first of their orders to the next day, and directed the overseers to attend them then with the rate; that, on the next day, accordingly, they went on to hear and made the second order on the merits, whereas they ought, as was insisted, wherever there was not proper notice, to adjourn the appeal to the next sessions. Sir Richard Lloyd, in shewing cause against the rule, as to the first objection, observed that the stat. 17 Gco. II. c.38. s. 4. makes the justices sole judges of what notice is reasonable, and they had thought this so; besides, this notice

In removals

But it has been decided in several cases of appeal against justices must adjourn appeal orders of removal, that where notice is not given in reasonthough insuffi- able time before the next sessions, the justices are bound to receive and adjourn the appeal; as also where none has been given.

cient, as no

notice given.

Insufficient

on Sunday.

Thus, upon a removal of a pauper, notice of appeal to notice served the quarter sessions was served on Sunday; for had the appellants deferred the service till another day, they would not, according to the practice of the court, have been in time to give reasonable notice to the respondents, for the purpose of trying the merits of the appeal. The court of quarter sessions being of opinion, that the party aggrieved was not at any rate or for any purpose entitled to appeal, unless the prescribed notice had been previously given to the respondents; and also, that service of notice upon Sunday not being legal service, there had not, in point of law, been any notice, refused to hear, adjourn, or enter the appeal. But the court of King's Bench granted a mandamus, directing them to receive and hear the appeal, no cause being shewn against it. (1)

Mandamus af

Also where, upon similar application, it appeared on the ter application affidavits on which the rule was obtained, that the examinto lodge and

was the best that could be given from the nature of the case, the rate being made on Saturday, and published on Sunday; notice of appeal was given on Monday, and on Tuesday the sessions was held. Per Wright J. To these orders several objections have been taken: first, that by the first order, the justices appear to be convinced that proper notice of the appeal had not been given, yet, instead of adjourning the consideration of it to the next sessions, as the act directs, where there shall not be sufficient notice, they take upon themselves to direct a notice, and adjourn to the next day only. This is the objection; but in answer it is said, the notice directed is only to attend with the rate; the notice of appeal they adjudged sufficient; and the adjourned day was not another, but the same sessions. Dennison J. My brother has sufficiently answered the first objection. Forster J. seems also to have concurred. But these orders were quashed on another exception. Rex v. Justices of Berkshire, & Glenbervie on Elect. 132. 1 Const. 274. Pl. 288. See also Rex v. Justices of North Riding of Yorkshire, post, 520. (1) Rex v. Huntingdonshire, Cald. 283.