said appeal brought on to be heard at the said general quarter sessions of the peace, before, as aforesaid, any notice in writing of the chargeability of the said G. Harris and Elizabeth his wife, or either of them, to the said parish of Saint Chad in the writ mentioned, and any statement in writing of the grounds of the removal of the said G. Harris and Elizabeth his wife, including the particulars of the settlement or settlements relied upon in support of the said removal, had been sent to or served upon the churchwardens and overseers of the parish of Shawbury in the writ mentioned. And, for the causes aforesaid, I do humbly return that I have not proceeded, and cannot and ought not to proceed, to hear and determine the merits of the said appeal, as by the writ" &c. Demurrer. Joinder. Pashley, for the Crown. The return is founded on the want of service of notice of chargeability and grounds of removal. But that affords no reason for not hearing the appeal: on the contrary, the appeal should have been heard; and the objection, if supported, should have been allowed on the hearing. That want of notice of chargeability constitutes a good ground of appeal was decided in Regina v. Brixham (a); and it follows that it furnishes no ground for refusing to entertain the appeal. On the authority of that case, the rule for the present mandamus was made absolute (b). No inconvenience arises from the practice as settled in Regina v. Brixham (a): if the order be confirmed on the objection, the decision will not bind the parties on an appeal upon the (a) 8 A. & E. 375. (b) Regina v. Recorder of Shrewsbury, 1 Low. & M. 105. 1853. The QUEEN V. Recorder of SHREWSBURY. 1853. The QUEEN V. Recorder of SHREWSBURY. 66 merits. On the other hand, it may be important to have the order quashed, so as to make a new order necessary, inasmuch as in the mean time the chargeability may cease. The right of appeal is given to the parties "who think themselves aggrieved by any such judgment" of the two removing justices, by stat. 13 & 14 C. 2. c. 12. s. 2.; by stat. 3 & 4 W. & M. c. 11. s. 9., to any persons aggrieved by any determination;" and, by the same statute, sect. 10, to "all such persons who think themselves aggrieved with any such judgment of the said two justices." The persons upon whom the order is made and served are the persons aggrieved by the judgment and determination. And in Rex v. Monks Risborough (a) it was held that the "next quarter sessions," in stat. 13 & 14 C. 2. c. 12. s. 2., means next after the service of the order. Stat. 4 & 5 W. 4. c. 76. s. 79. introduces the necessity of the service of notice of chargeability: the actual removal cannot take place (except by consent) till twenty one days after notice of chargeability has been sent, together with a copy of the order and the examinations. But that does not prevent the order itself from being the "judgment" or "determination" by which the parish is aggrieved: and, under that statute, it has been held that either the order or the actual removal might be treated as the grievance. Then stat. 11 & 12 Vict. c. 31. s. 9. merely substitutes the grounds of removal for the examinations. C. H. Scotland, contrà. The right of appeal is created by statute; and the jurisdiction exists only where it is placed by statute. Regina v. Brixham (b) is indeed (a) 2 Bott, 744, pl. 954 (6th ed.). (b) 8 A. & E. 375. 1853. The QUEEN V. Recorder of adverse to the appellants, but only by implication: the point now in discussion was not taken there. The appeal is given, by stats. 13 & 14 C. 2. c. 12. s. 2. and 3 & 4 W. & M. c. 11. ss. 9., 10., to the parties aggrieved: SHREWSBURY. and, as to those statutes, the only question is, what constituted the grievance. Now, though sometimes the service of order of removal was looked to for this purpose, that was only because it was assumed that the removal and the service of the order would take place contemporaneously. The order of removal is called a "warrant," in stat. 13 & 14 C. 2. c. 12. s. 1.; and, like other warrants, it was shewn at the time of execution. But till the actual removal there was no grievance; and, when a sessions intervened between the order and the removal, the appeal lay to the sessions next after the removal; Rex v. Norton (a), Rex v. St. Marylebone (b). But, as decided in the case last mentioned, stat. 35 G. 3. c. 101. s. 2., introduced, in the case of a suspended order, a grievance which accrued immediately upon the making of such order, and without removal, by reason of the costs during the suspension. Stat. 49 G. 3. c. 124. s. 2. enacted: "that when the execution of any such order of removal shall be suspended, the time of appealing against such order shall be computed according to the rules which govern other like cases from the time of serving such order, and not from the time of making such removal under and by virtue of the same." This does not recognize a computation from the time of the service of the order, or any time but the removal, in the case of orders not suspended, but provides merely that the time, though reckoned from different points in the two cases, shall be computed in the same way. [Lord (a) 2 Str. 831. (b) 13 East, 51. 54. 1853. The QUEEN Campbell C. J. Did not service of the order furnish evidence of settlement, if acquiesced in?] It could Recorder of do so only if there was the power to appeal; so that SHREWSBURY. the question is still the same. Stat. 8 & 9 W. 3. c. 30. V. s. 6. enacts that appeals shall be prosecuted only at the sessions for the county, &c. wherein the parish, &c., "from whence such poor person shall be removed, doth lie,” evidently assuming that in all cases of appeal there will have been an actual removal. Then the question is as to the changes produced by later Acts. Stat. 4 & 5 W. 4. c. 76. s. 79. gives a power of appeal, before removal, if notice of appeal be given within twenty one days after service of a notice of chargeability accompanied by a copy of the order; but here that notice has not been given. So, by sect. 84, the expences are payable, by the parish to which the pauper is removed, only from the service of notice of chargeability. The object of this alteration was to save the inconvenience of a removal which might possibly, on appeal, turn out to be unwarranted: that explanation is given by Williams J. in Regina v. The Justices of Herefordshire (a). In Regina v. Justices of Salop (b) it was held that, even after stat. 4 & 5 W. 4. c. 76., there was no grievance till actual removal, and therefore that an appeal to the sessions next after the removal was early enough. That was held to be erroneous, so far as the reasoning went; it being afterwards decided that, since the statute, both the order and the removal were distinct grievances, and that the time of appeal might be reckoned from either; Regina v. The Justices of the West Riding of Yorkshire (c), Regina v. The Recorder of Leeds (d). But it was taken for granted, in all these cases, that, before the statute, there was no (a) 8 Dowl. P. C. 638. 645. (c) 2 Dowl. & L. 488. (b) 6 Dowl. P. C. 28. 1853. The QUEEN V. Recorder of grievance till there was actual removal. Then stat. 11 & 12 Vict. c. 31. s. 9. does more than substitute the grounds of removal for the examinations: it provides in itself a complete regulation of the practice: and it enacts SHREWSBURY. that no appeal shall be allowed if notice thereof be not given within twenty one days after the notice of chargeability and statement of grounds of removal shall have been sent, unless within twenty one days a copy of the depositions has been applied for, when fourteen days are allowed for notice of appeal, reckoned from the sending of such copy. This enactment does not even mention the service of the copy of the order. Therefore, at no time has there been a right of appeal without either an actual removal or a service of notice of chargeability; and now there is none without service of such notice. Pashley, in reply. Stat. 11 & 12 Vict. c. 31. s. 9. varies from stat. 4 & 5 W. 4. c. 76. s. 79. merely in the description of documents which are to be sent the question therefore is still as at the time of the decision of Regina v. Brixham (a): and that case has not been distinguished from the present. The return does not shew that the objection was taken in this case. The other decisions under stat. 4 & 5 W. 4. c. 76., which have been cited on the other side, relate merely to the question at what sessions an appeal should be heard, not to the general question of jurisdiction: and, whatever extrajudicial remarks may have been made in those cases, they decide only that both the service of the order and the actual removal are grievances giving the right to (a) 8 A. & E. 375. |