No. 539-VOL. XI. MAY 8, 1847. PRICE 18. *The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: Master of the Rolls Court Vice-Chancellor of Eng-. land's Court Vice-Chancellor Bruce's Court... {A. GORDON, Esq. of the Inner Vice-Chancellor Wigram's [F. FI, HER, Feat Of Lincoln's {T '{ Temple, Barrister at Law. TENISON EDWARDS, Esq. of the G. Y. ROBSON, Esq. of the Inner LONDON, MAY 8, 1847. It is rumoured that very considerable changes are in contemplation with regard to the transaction of that portion of the business of equity which is now conducted in the Masters' offices. Of what the intended changes are we have no precise information; and we believe nothing has generally transpired beyond this, that the intention (as it is supposed) is to abolish the Masters' offices, and to substitute a small number of assistant equity judges, and a corresponding number of accountants in equity; the judges to take the business properly judicial, such as references upon pleadings and upon title, and such questions of law as are now discussed before the Masters themselves; and the accountants, as their name bespeaks, to take the accounts with the taking of which the Masters are now charged, but the whole business of which is transacted by their clerks. Whatever may be the other details of the proposed measures of reform in this department of Chancery business, we trust that they will comprise the two following points, without which, we apprehend, they will not satisfy the wants or expectations of the public; viz. publicity in the proceedings of the courts of the judges substituted for the Masters, and the total abolition of the system of detached warrants. It scarcely needs argument to shew, that, wherever the nature of the business renders it at all practicable, business purely, or even principally, judicial, should be transacted in public; and that judges, counsel, attornies, and officers of the court, all transact their business with more care and with more zeal when public reputation is the reward of zeal, and public obloquy or ridicule the reward of ignorance and neglect. But the abolition of the mode of proceeding by detached warrants, and the substitution for it of the continuous mode of VOL. XI. Court Inn, Barrister Law. J. P. SMITH, Esq. of the Inner Temple, Barrister at Law. A. Y. KIRWAN, Esq. of Gray's Inn, Barrister at Law. (W. PATERSON, Esq. of Gray Court of Exchequer...{ˇ proceeding pursued in the superior courts, is the reform. the most absolutely required. The system of proceeding by warrants may, for the information of those who do not practise in Chancery, shortly be described thus:-A certain matter being committed to the jurisdiction of the Master, (say, for instance, in any ordinary suit for administering an estate, a reference to inquire and state the priorities of several incumbrancers), a certain hour on a certain day is appointed for the parties to be heard before the Master by their solicitors or counsel; and that hour is devoted, or at least appropriated, to that business. When it is over, those parties must make way for some others whose time for being heard has arrived; another day and hour are then appointed for the first set, who, on that day, enjoy again the advantage of an hour of discussion of their case, and so on. Sometimes two and sometimes three hours consecutively, but rarely more, are to be obtained for the continued discussion of one case; and the Master may, but rarely does, proceed, as it is termed, de die in diem, with some particular case; that is, commences it and does not leave it till it is finished. But this is an exceptional practice. The usual practice is to have one or two hour warrants, and so to dispose of a case piecemeal. Now, this is bad enough in theory, because nothing can be imagined more intrinsically opposed to a sound investigation of a subject, than taking it up at intervals removed considerable distances from each other. But, if it is simply bad in theory, it is horribly bad in practice. The way it works is this:-If both parties are not present by a quarter of an hour after the hour fixed, the party then present may proceed ex parte. Therefore, in pursuance of that principle of human nature which makes men always delay a duty till the very last moment when it must be performed, it is the practice for neither party to dream of attending a warrant till the quarter of an hour's grace has expired. By the time all parties are collected, and ready to proceed, some further small portion of time has passed, and the result is, that of an hour warrant, not above forty minutes are in general actually devoted to business: a case is, therefore, if at all intricate and difficult, barely gone into before it must be postponed, perhaps for a week, perhaps for more. When the parties next meet on the field of battle, the Master has in the interval of course had his attention directed to a great variety of matters, and as Masters, however able, are not preternatural men, they have of course forgotten the greater part of what was said to them on the first warrant. A great part of the second is, therefore, ex necessitate rei, occupied in reminding the Master of what he was told before, and the remainder only is available for new matter. And so the affair goes on from warrant to warrant, at least a quarter of each being absolutely wasted in one party politely waiting for the other, or the Master as politely waiting for both; and another quarter being substantially wasted in reviving the forgotten proceedings of a former warrant. The result of the whole system is, that, of the time of those really important and highly paid functionaries—the Masters in Chancery, on an average one third is, without any fault of their own, but from the gross vice of the system, totally lost to the public. Now, the simple substitution of the continuous system of proceeding would remedy at least this one great mischief. Every change from an established system is of course always viewed by many persons as fraught with inconvenience. But what would be the mischief of such a change as this, almost passes comprehension. If the Master is directed to look into pleadings to see whether they are impertinent, or scandalous, or insufficient, (a frequent and material part of his duties), when he has done so, and made his report, the dissatisfied party excepts to the report, and exactly the same business which has been gone into before the Master on separate warrants, is brought before the Court and disposed of on one hearing of the exceptions. So, if the Master has had to inquire into the question, whether a vendor has shewn a sufficient title, which he has done by receiving evidence of title and hearing arguments thereon, spread over an infinite number of unconnected hours, then, if either party excepts to his report, the whole matter comes before the superior court, and is gone into and disposed of as a cause, that is, is not abandoned, when once begun, until it is finished. This is found to be a convenient course for the superior court, and it is inconceivable why it should be a very inconvenient one for the inferior court; and, for the reasons above stated, there is good ground to conclude that it would be a much more convenient and efficient plan than that at present pursued. court of reference is assimilated to that of the superior court, the better will be the result. In this view we should be glad also to see the whole machinery of states of facts, &c. altogether abolished. At present, if a decree in Chancery is made, referring certain inquiries to the Master, the parties do not proceed as a matter of course upon the pleadings and evidence already before the Court, but what is termed a state of facts, that is, a sort of rechauffé of the case made by either party, is drawn up for the Master, and upon that statement, and not upon the bill and answer, the parties proceed in the Master's office. In strictness, the Master ought to look at nothing else but the states of facts and the evidence produced in support of them. But as the real groundwork of the inquiry are the bill and answer, and the evidence produced in support of the bill and answer in the court above, it would of course be absurd for the Master really to confine his attention to a set of pleadings which are oftentimes little better than a shadow of the real pleadings. In practice, therefore, the bill and answer are continually dragged before the Master, and great confusion and waste of time are often the result of a struggle between the desire of the Master to confine himself to that matter, to which, in technical strictness, he ought to confine himself, and his desire to travel out of a set of pleadings which he feels do not correctly and sufficiently represent the real case on which he has to report. A state of facts is in truth an absurdity. The Master never can have to look at more as the foundation of the inquiry referred to him, than is contained in the original pleadings, and less ought never to be brought before him. The result is, that he ought to proceed upon the pleadings themselves, and only in the matter of evidence should there be any departure from or extension of that which was originally before the Court. We throw out these observations, the correctness of which we are disposed to believe would be supported by most Chancery practitioners, in the hope, that, if the matters to which they refer are not already provided for by those to whom the higher authorities have entrusted the preparation of the reforms under consideration, their attention may thus be called to them. SINCE our last week's Number was published, our attention has been called to the article which appeared therein, relative to the case of Elizabeth Johnson, tried at the last Liverpool assizes. Nothing was more remote from our intention than to misstate any of the the summing up of the very learned judge who presided circumstances, or to cast a reflection in any way upon at the trial. The fact is, that the article, as originally composed, was one of much greater length than that inserted, but owing to the press of matter it was There are other points also tending to expedition, on found necessary at the eleventh hour to curtail it. It which we conceive it would be for the interest of suitors, of the deceased, no arsenic was found, and the jury appears that, at the first examination of the body that the practice of the superior court should be introduced in the courts substituted for the Master's offices. on the inquisition returned a verdict of natural death. For instance, if the party having the conduct of the suit on the second examination, however, a small portion of arsenic was detected, and the medical witnesses neglects to proceed for a given time, the other party should have a power similar to that possessed by a de- stated, that it was impossible their experiments could fendant of moving to dismiss the bill, if the plaintiff have introduced it, because the zinc and other metals does not proceed with due diligence. In fact, we ap- used by them in making the test were previously prehend that the more the practice of the subordinate | tested and were found quite pure, and in addition the water was pure distilled water. Then, on summing up, the learned judge stated, that this being so, it was material for the prisoner that the attention of the jury should be called to the fact proved, viz. that after interment, the body, from the wetness of the soil around, had become filled with water, which, not being pure distilled water, might reconcile the appearances at the first exa-headed, "Exemptions from the said ad valorem duty on mination, when no arsenic was found, with those of the second, when slight indications appeared; but that, if large quantities of arsenic had been found on the second examination, the fact of the body having absorbed the water ought not to be taken into their consideration. all the material words of that part of the schedule which imposes the ad valorem stamp-duty on mortgages in general. It is important to observe, that owner of a mortgaged estate authorises the mortgagee they clearly do not include a deed by which the to sell it for payment of the debt. But there is, towards the end of this title in the schedule, a division mortgages, &c., to which the same may be liable, but not from any other duty;" and among these exemptions as an additional or further security for any sum or sums is the following: "any deed or other instrument made of money &c. already secured by any deed or instrument which shall have already paid the ad valorem duty hereby charged, to be exempt from the said ad valorem duty hereby charged, so far as regards such sum or sums STAMP ON A FURTHER SECURITY FOR A of money, &c., in case such additional or further seMORTGAGE DEBT. curity shall be made by the same person who made the original security; but if any further sum of money or stock shall be added, &c." It is to be observed that this The temper of the courts with respect to the con- is a clause of exemption, not of imposition, although we struction of the Stamp Act has taken a turn. Until admit it may be looked at, if necessary, for the purpose of recently the judges were astute or blind (as the case interpreting the preceding clause of imposition. Now, might require) in order that the subject might be if A. mortgages Whiteacre to B., and afterwards mortcharged as lightly as possible, (Warrington v. Furber, gages Blackacre to secure the same debt, the second 8 East, 242; Tomkins v. Ashby, 6 B. & Cr. 541), and in deed, being a deed of mortgage, would be liable to the this spirit they decided that the following words in the ad valorem duty but for the clause of exemption, which stat. 3 Geo. 4, c. 117, respecting transfers of mortgages, applies to all instruments which would otherwise be "and if any further sum of money or stock shall be liable to the mortgage duty, being further securities by added to the principal money or stock already secured, the original mortgagors. It does not say that all furthe ad valorem duty on mortgages payable under the ther securities are mortgages, but it says that all mortsaid recited acts respectively shall be charged only in gages shall be exempt if they are further securities by respect of such further money or stock," are to be read the original mortgagor. The title of the clause, "Exas if the word "only" were transposed, so as to make emptions from the said ad valorem Duty on Mortgages," the passage read thus, "only the ad valorem duty," &c., plainly shews that it is confined to deeds of mort&c. (Doe d. Barnes v. Roe, 6 Scott, 525). And in gage, and does not extend to everything which can be Pierpoint v. Gower (5 Scott, N. R., 605) it was held, called a further security. It could never be contended, that a mortgage-deed did not require an ad valorem for instance, that a bond, or deed of covenant, or prostamp, because the sum secured happened to be owing missory note, for the mortgage debt, given by the morton a warrant of attorney, although not a word of ex-gagor's heir, would, by the operation of this exemption, emption in such a case is to be found among the sta- become liable to the ad valorem mortgage duty. Yet tutes. "In order," said Alderson, B., on one occasion, such instruments are certainly further securities. So a "to sustain an objection for want of a stamp, you must power to sell a mortgaged estate is a further security, hit the bird in the eye." Now, however, the revenue or rather a further remedy, but it is not a mortgage. is being taken into favour, and it is sufficient if you A further security, to be liable in any case to the mortwing your game. Passing over for the present the case gage duty, must be a mortgage or charge of some proof Birt v. Leigh, (14 Mee. & W. 177), which has over-perty or interest in property not already mortgaged or ruled Dibdin v. Morris, (2 Car. & P. 44), and has de-charged for the same debt. Thus, if lands are demised cided that half the receipts, for rent, tradesmen's ac- for 1000 years by way of mortgage, a deed conveying counts, &c., in common use, are inadmissible in evi- the reversion in fee as a further security is also a mortdence; and the still more extraordinary case of Chad-gage, because it charges with the debt an interest which wick v. Clarke, (1 Com. B. Rep. 700), deciding that a was not before charged. (Doe d. Bartley v. Gray, 2 verbal agreement is liable to stamp-duty, (how the Adol. & Ell. 89; 4 Nev. & M. 719; Brown v. Pegg, 6 winged words are to be arrested at Somerset-house may Q. B. Rep. 1). be seen in the report), our present business is with the case of Humberston v. Jones, reported in the last number of THE JURIST, (p. 337), where it was held, that a deed authorising a mortgagee to sell the estate held by him in mortgage is a further security for a mortgage within the Stamp Act. This decision will occasion much alarm and inconvenience, for a contrary construction of the statute has been commonly acted upon. In the schedule to the General Stamp Act, 55 Geo. 3, c. 184, under the title MORTGAGE, an ad valorem stampduty is imposed on a "mortgage, conditional surrender by way of mortgage, further charges, wadset, &c., of or affecting any lands, &c."; also," any conveyance of any lands, &c., in trust to be sold or converted into money, which shall be intended only as a security, and shall be redeemable, &c."; "also any defeasance, &c., for defeating or making redeemable, or explaining or qualifying, any conveyance, &c. which shall be apparently absolute, but intended only as a security;" "also, any agreement, &c., accompanied with a deposit of title-deeds, for making a mortgage," &c. These are In Humberston v. Jones a mortgage in fee had been executed for securing 1000l., with the usual proviso for redemption, but no power of sale. After the death of the mortgagor, the mortgage was transferred, and the transferee advanced to the mortgagor's heir a further sum of 17231. The deed of transfer contained a covenant by the heir to pay 27237. on different days from those specified in the original mortgage, and also a power of sale for the purpose of recovering the whole sum. The deed bore one stamp of 67., which was only sufficient to cover the 17231. The stamp was held insufficient. Parke, B., said "The decision in the case of Doe d. Barnes v. Roe, (4 Bing. N. C. 737), establishes, that, if there be a transfer of the former security only, and a new advance upon the same security of a sum of money, the ad valorem duty on the latter is sufficient, and no further stamp is necessary. But if, besides the transfer of the former mortgage, a fresh security is added for the sum originally lent, as where the first mortgage is of a term, and the second conveys the fee to secure the old and new advances in one aggregate sum, it has been decided that a further stamp is necessary by the case of Brown v. Pegg, (6 Q. B. Rep. 1), such a case not falling within the provisions of the 3 Geo. 4, c. 117. We cannot distinguish this from the present case. This is not a transfer from the first mortgagee to the plaintiff, giving him only the same security which he had, and the same right to the land conveyed, but here is a fresh covenant from the defendant to the plaintiff, to pay at different times the original demand of 10007. as well as the subsequent advance of 17231., and here is also a power to raise the former as well as the latter sum by sale of the estate. The deed, therefore, contains more than a transfer of the old mortgage and the advance of a further sum, and consequently requires a further stamp than the ad valorem in the new advance." It was not necessary to decide, and the Court did not distinctly say, whether the extra stamp should have been the ad valorem stamp on the old debt, or merely the common stamp on deeds not otherwise charged. But from the language of the judgment and the reference to Brown v. Pegg, it may be conjectured that they thought the deed stamp would have been sufficient. Yet, if an additional stamp was necessary in respect of a further security, that stamp should have been an ad valorem stamp, for the further security was not given by the original mortgagor. In Brown v. Pegg the deed unquestionably continued a further security by a person who was not the original mortgagor, and, therefore, was clearly liable to the ad valorem duty, although the Court, in deciding that it was insufficiently stamped, said that it required "a deed stamp at least" in respect of the further security. The only ground for holding in Humberston v. Jones, that the ad valorem duty attached in respect of the old debt, was, that the power of -sale constituted a further security, for the covenant to pay was clearly no mortgage security. That the power of sale was no further mortgage security seems to be equally clear; it was merely a means of making the existing security more conveniently available; it charged no new property. If the liability of the deed to ad valorem duty in respect of the old debt be given up, the decision in Humberston v. Jones must rest on its liability to the deed stamp. For this liability, the exemption clause in the Stamp Act, cited above, cannot be relied on, for that is confined to cases where there is a further security. Now, the only cases prior to Humberston v. Jones, in which a deed of transfer and further charge has been held liable to the deed stamp, are Lant v. Peace (3 Nev. & P. 327; 8 Adol. & Ell. 248) and Brown v. Pegg, (6 Q. B. Rep. 1). In Lant v. Peace the deed contained a clear further security, and the decision (erroneous as we think) was expressly founded on that fact and on the words of the exempting clause. Patteson, J., said, "I feel no doubt on this question, on looking at the terms of what is called the exempting clause." In Brown v. Pegg, the deed, as we have seen, was liable to the ad valorem stamp, and came within the exception in the exempting clause. That case is, therefore, no authority for the present, which is to be supported, if at all, on the following clause in the schedule to the Stamp Act: "MORTGAGE, &c., with a conveyance of the equity or other matter, in the same deed, viz. : (Provision for the case of a conveyance of the equity of redemption). "And in all other cases where a mortgage or other instrument hereby charged with the ad valorem duty on mortgages shall be contained in one and the same deed or writing, with any other matter or thing, (except what shall be incident to such mortgage or other instrument), such deed or writing shall be charged with the same duties (except the progressive duties) as such mortgage or other instrument, and such other matter or thing, would have been separately charged with, if contained in separate deeds or writings." In Humberston v. Jones, the Court may have considered that the covenant to pay the whole debt and the power of sale were not incident to the new mortgage. But surely this was taking a very narrow view of the transaction. So far as concerned the old mortgagee it was a transfer, and that part of the deed which related to him was exempted from all stamp duty by the 3 Geo. 4, c. 117, as interpreted in Doe d. Barnes v. Roe. So far as concerned the mortgagor and the new mortgagee, it was a single transaction-a loan of 27234, subject to ad valorem duty on part, exempt from ad valorem duty on the residue. How could the deed be said to contain anything not incident either to the transfer of the old mortgage or to the securing of the further advance?* The personal covenant by the mortgagor to pay the old debt, and the power of sale in respect of it, by extending the transferee's remedy for that debt, and making the recovery of it less expensive, may have rendered the security for the new advance more valuable, and was therefore incident to that security; but unquestionably, as the transaction consisted only of a transfer and a further charge, the matter in question was incident either to the further charge, and so covered by the ad valorem duty, or to the transfer, and so exempt by the stat. 3 Geo. 4, c. 117. To try this better, suppose the arrangement had been effected by two deeds, one containing a transfer of the old mortgage with a new covenant for payment and a power of sale, and the other containing a security for the further advances. The latter would of course have required the ad valorem duty only; and it is equally plain, that the former, containing nothing but a transfer, and matter incident to a transfer, would have required the transfer stamp onlyt. Unite them, and the transfer stamp becomes unnecessary. (Doe v. Roe). The decision in Lant v. Peace has been much disapproved of, and is open to criticism similar to which we have applied to Humberston v. Jones, and as those cases stand unsupported by any other authority, or by each other, it is to be hoped that they will be reviewed, and the questions involved in them settled on a more satisfactory footing. That the decision in Humberston v. Jones was quite unexpected at Somerset House, may be seen from Mr. Tilsley's work on the Stamp Laws, (p. 485). ON THE WRIT OF MANDAMUS. (Continued from p. 167). lants drew a case, and submitted it to the counsel for the respondents, the counsel however being unable to agree, the appellants applied to the justices at their next sessions to settle the case, and a reference was had Where, upon an appeal against a rate, the appellant, to the chairman, but he did not settle it. The appelon the trial being called on, was ready to try and prove lants again applied to the quarter sessions, who refused notice of appeal, but the respondents were unprepared, to interfere, on the ground that they had no jurisdicand applied to put off the trial until the next sessions, tion. Upon application to the Court of King's Bench, which was granted, when the counsel for the respond- however, they granted a mandamus to the justices, ents handed to the clerk of the peace a copy of the no- commanding them to enter continuances and hear the tice of appeal to enable him to draw up the order; at appeal, unless in the meantime they settled the case, the next sessions the appeal was called on, but the re- holding that they could not command them to state a spondents' counsel objected to its being heard until the case; but, not having absolutely decided, they were appellant first proved service of the original notice of bound to hear the appeal. (Rex v. The Justices of appeal, conceiving the fact to have been admitted on Suffolk, 1 Dowl. P. C. 163; Reg. v. The Justices of the the former occasion. This the appellant was not pre- West Riding of Yorkshire, 1 New Sess. Cas. 247; Reg. pared to do, and the sessions confirmed the rate. Upon v. The Justices of Cheshire, 15 Law Journ., N. S., M. C., application, the Court of King's Bench granted a man-114). But where the sessions, on determining an apdamus, commanding the justices to enter continuances peal, have granted a case, but none has been stated, the and hear the appeal, at the same time stating that, as Court will, under some circumstances, direct a manthe respondents had acted upon the notice, other proof damus to the justices who heard the appeal to state a of it was rendered unnecessary, and, therefore, the ses- case. (Rex v. The Earl of Effingham, 2 B. & Ad. 393, sions ought to have heard the appeal. (Rex v. The n.; Rex v. The Justices of Pembrokeshire, Ib. 391; and Justices of Herefordshire, 4 B. & Adol. 561; Rex v. see Rex v. The Justices of Staffordshire, 1 Dowl. P. C. The Justices of the West Riding of Yorkshire, 5 B. & 484). Where an application was made to the justices Adol. 667; S. P., see Reg. v. The Justices of Middlesex, of Kent, at their sessions, by petition, to fix the wages 2 Dowl., N. S., 719). So, where an appeal was lodged of millers within the county; but they, conceiving that against an order of removal at the sessions, sent after the statute was confined to the wages of labourers in the order was made, the applicants then moved to re- husbandry, refused to interfere, upon which an applicaspite, no notice having been given to the respondents; tion was made to the Court of King's Bench for a manbut the sessions considering that there had been suffi- damus commanding them to hear and determine the cient time to have given notice of trial after service of application, upon which the writ was directed to issue, the order, and before holding the sessions, dismissed it. the Court being of opinion that the justices had jurisThe Court of King's Bench, however, upon application, diction, Lord Ellenborough, C. J., said, "We do not, granted a mandamus, commanding the justices to enter however, by granting this mandamus, at all interfere continuances and hear the appeal, stating that the sta- with the exercise of that discretion which the Legislatute was compulsory on the sessions in such cases to re-ture meant to confide to the justices of the peace in sesceive and adjourn the appeal. (Rex v. The Justices of sions: we only say, that they have a discretion to exerStaffordshire, 7 East, 549; Rex v. The Justices of Wilt- cise; and, therefore, they must hear the application; shire, 10 East, 404). So, where a party, assessed under but having heard it, it rests entirely with them to act a poor-rate, appealed against it, and, after notice of ap- or not upon it, as they think fit." (Rex v. The Justices peal, the overseers finding the rate could not be sup- of Kent, 14 East, 395; and see Rex v. The Justices of ported, abandoned it. The appellant, however, still Cumberland, 1 M. & S. 190; 5 Eliz. c. 4, s. 15; 1 Jac. proceeded with the appeal, and at the ensuing sessions 1, c. 6, s. 3; 16 Car. 1, c. 4, s. 2). Where, upon apit was moved to quash the rate; when the justices held, peal to the justices at sessions against overseers' acthat, as the rate was abandoned, they had no longer any counts, they refused to hear it, on the ground, that, as jurisdiction, and refused to hear the appeal. The Court they had not been examined and allowed at a special of King's Bench, however, were of a different opinion, sessions, pursuant to 50 Geo. 3, c. 49, they had no juand granted a mandamus commanding the justices to risdiction, the Court, after hearing counsel, being satisenter continuances and hear the appeal; thereby de-fied that the sessions had jurisdiction, and that they ciding that the overseers had no power to abandon a ought to have heard the appeal, granted a mandamus rate duly made. (Rex v. The Justices of Cambridge, 2 commanding them to enter continuances and hear the Adol. & Ell. 370; and see Reg. v. Fouche, 11 Law appeal. (Rex v. The Justices of Colchester, 5 B. & Ald. Journ., N. S., M. C., 2). So, where a poor-rate was 535; S. C., 1 D. & Ry. 146; 1 Cas. Mag. 51; and see made in September, and an appeal was entered and re- Rex v. Bartlett, 2 Stra. 983; Rex v. Whitear, 3 Burr. spited at the Michaelmas sessions, and notice of appeal 1365; Lester's case, 16 East, 374; Rex v. Pascoe, 2 M. given for the following, the justices refused to hear the & S. 343). So, where there were two overseers of the appeal, upon the ground, that the appeal not having been poor, and, by arrangement between them, each became heard at the previous sessions, and having been ad- acting overseers for half the year, and one appealed journed without proof of want of notice to the re- against the accounts of the other, when the appeal was spondents, or of its being impracticable for the ap- called on at the sessions, and one of the witnesses for the pellant to proceed, they had no jurisdiction. The respondents examined his counsel, took an objection to Court of King's Bench, however, granted a manda- the appeal, and contended, that it would not lie by one mus commanding them to enter continuances and hear joint overseer against the other: the justices, coinciding the appeal, at the same time stating, that, although it in this view of the case, dismissed the appeal, without was competent for the justices, at the first sessions after hearing the appellant. Upon an application for a publishing the rate, to refuse to receive the appeal mandamus to the justices to enter continuances and without proof of notice; but, having received and ad- hear the appeal, it was urged, upon the part of the journed it, they were bound to hear it. (Rex v. The magistrates, that the appellant was not competent, as a Justices of Wilts, 8 B. & C. 380; S. C., 2 M. & Ry. co-overseer, to appeal in such a case; and that, as the 401; Rex v. The Justices of Oxfordshire, 1 M. & S. sessions had already exercised their jurisdiction, and 446). So, where an appeal against an order of removal decided the appeal, the Court would not interfere by was heard at the Easter quarter sessions, and the order awarding a mandamus; the Court held, however, that was confirmed, subject to a case for the opinion of the the appeal was not heard, and that the grounds of reCourt of King's Bench, and the counsel for the appel-fusal were insufficient, and granted the writ accord |