O Essex.

Rex v. Justices conviction, and had given notice of appeal to the magistrate, but not to the informer. By the practice of the sessions for the county of Essex, eight days' notice of appeal is required to be given, in all cases, by the appellant to the respondent. It was objected at the sessions, that the practice not having been complied with in this particular, the appellant was not entitled to be heard; and the sessions allowed the objection, and dismissed the appeal. On moving for the rule nisi, the case of Rex v. The Justices of Kent was relied on, and it was contended that the entering into the recognizance before the magistrate dispensed with the necessity of giving notice of appeal. And accordingly the court of K. B. made the rule for a mandamus absolute.-Bayley J. "I am of opinion that the sessions ought to have heard this appeal. Wherever the legislature has deemed a notice of appeal to be necessary, they have in express terms prescribed such notice; but here, by the 50 G. 3. c. 48. § 25. it is expressly provided, that any party aggrieved by the conviction, who shall, within fourteen days, enter into a recognizance to appear at the next sessions, shall be at liberty to appeal at the next general quarter sessions of the peace to be holden for the county.' The act of parliament, therefore, does not require any notice of appeal; and inasmuch as the party convicted had entered into a recognizance to prosecute his appeal at the next sessions, the informer must have known that it was the intention of the party convicted to appeal, and any further notice was therefore unnecessary. I think, therefore, that this rule ought to be made absolute."-Best J. concurred.

But when an appeal, where no notice of ap peal is required,

is entered and respited, the

appellant must give the usual notice of trial.

It should seem, however, that though where a statute gives a party aggrieved a right of appeal, on giving security to a specified amount, he may enter and respite his appeal at the next sessions, after having given such security, without notice of appeal to the other side; yet, after the appeal has been respited, he must give the usual notice of trial, in conformity with the practice of the sessions.

Im

Thus in Rex v. Justices of Salop, 2 B. & A. 694., a rule nisi was obtained for a mandamus to the sessions to enter continuance and hear the appeal of John Rogers against the conviction of a magistrate, under 52 G. 3. c. 93. sched. L. rule 12. The defendant was convicted in the penalty of 101. for using greyhounds, for the purpose of killing a hare, not having taken out a certificate. mediately upon his conviction, he entered into the recognizance required by the act, to prosecute his appeal against it. At the next sessions he accordingly entered his appeal, and it was respited by the court. At the following sessions he again appeared for the purpose of trying the appeal, but it being objected that there had not been eight days' notice given to the convicting magistrate, as was required by the rule of the sessions, the magistrates dismissed the appeal, and confirmed the conviction. On moving for the rule nisi, the case of Rex v. Justices of Leeds (4 T. R. 583. post, p. 118.) was relied on, and it was contended that the entering into the recognizance before the magistrate dispensed with the necessity of giving the usual notice to him of trying the appeal. -W. E. Taunton shewed cause. The sessions have done right in dismissing this appeal. There was an appeal respited from the January to the Easter sessions. It was therefore incumbent on the appellant to comply with the rule of the sessions, and give the requisite notices. But none were given. In Rex v. Justices

of Leeds, the question arose on the 17 G. 3. c. 56., by which the Rex v. Justices convicting magistrate is directed to inform the party of the mode of Salop. of giving notice required by that act; that not having been done, it was held that the party was excused for not having complied with the act, by giving a notice in writing. But then there had been a sufficient notice, not in writing, with which the convicting magistrates expressed themselves satisfied. It is said, that the sessions ought in this case to have adjourned, instead of dismissing this appeal; but it is clear, that they might do either. In Rex v. Justices of Buckinghamshire, 3 East, 345., Lawrence J. expressly determined that case on the ground of the special directions in 9 G.1. c. 7. § 8. -Comyn contrà. The appellant has in this case complied with the directions of the act of parliament; for the 13th section of the act expressly gives the party aggrieved a right of appeal, on giving security to the amount of double the penalty. Here that security was given for the appellant. In Rex v. Justices of Leeds, the recognizance was held to supply the want of a notice, and here the security ought to have the same effect.-Abbott C. J. "It was, perhaps, sufficient for the party to entitle himself to enter his appeal at the January sessions, that he had given the security required by the act, although no notice of appeal had been given by him; but when once he had entered his appeal, he was bound to conform to the practice of the sessions. It was therefore necessary for him to have given the usual notice of trying his respited appeal at the Easter sessions, and not having done so, the magistrates were authorized to dismiss the appeal altogether."

Where the statute requires a

notice before the appeal be received, no practice of sessions can empower the justice to receive the appeal without such notice;

Where the act of parliament which gives the appeal, annexes, as a condition to the right of appealing, that notice of the appeal shall be given according to that act, no practice of the sessions can give the justices power to receive the appeal, unless the prescribed notice shall have been given: for the practice of the sessions cannot avail against the positive words of the statute. Thus in Rex v. Justices of Oxfordshire, 1 M. & S. 446., there had been a conviction for deer-stealing, under 16 G. 3. c. 30. (repealed by stat. 7 & 8 G. 4. c. 27.), and an appeal to the next quarter sessions; but on its being called on, objection was taken that the six days' notice required by § 21. had not been given: and thereupon the or to enter and justices entertaining doubts, respited the appeal till the next ses- adjourn it. sions, in order to consider the question. Meanwhile the prosecutor was served with notice to try at the sessions to which the appeal had been respited; at which sessions the same objection was renewed; when the court decided in favour of the objection, and dismissed the appeal : whereupon a mandamus was applied for in the court of K. B.; but the application was refused; and Lord Ellenborough C. J. said: "In this case the only question is, whether a notice of appeal was not necessary; for, if necessary, it is admitted that none has been given. An appeal is not a matter of common right, but of special provision. Then it may be given either absolutely or conditionally, and if no limits as to time be prescribed, it shall be understood that the appeal must be within a reasonable time. From the reign of queen Elizabeth to that of George the first, appeals under the poor-laws seem to have gone on without any statutable provision restricting the time of notice; until, by the 9 G. 1., reasonable notice was required to be given. But the statute now in question enacts, that a person may appeal to the

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Rex v. Justices sessions next after the expiration of twenty days from the time of of Oxfordshire conviction, but the person so appealing is required to give six days'

Notice dis

pensed with by neglect of justice to give information of

mode of appeal ing.

notice, and to enter into a recognizance.' There are therefore two conditions annexed to this right of appeal. One of them, which is the giving notice, has not been complied with in this case. Of course, therefore, the appeal has never been duly entered; and, if so, it could not be adjourned; for the sessions cannot acquire to themselves a jurisdiction by an act of their own. The power of adjournment is only incident, when the sessions cannot conveniently hear the appeal after it has been duly entered."

Again, in Rex v. Justices of Lincolnshire, 3 B. & C. 548., it appeared that an order had been made by two justices, adjudging John Ulyatt to be the father of a bastard child. The order was made on the 14th of January, and the next quarter sessions were on the 27th of April. No notice of appeal was given, nor any recognizance entered into to try the appeal at that sessions, but an application was made to enter the appeal then, and to adjourn it to the next sessions. The justices refused to receive the appeal for want of notice and recognizance: whereupon a rule nisi for a mandamus was obtained. On shewing cause, the statute 49 G. 3. c. 68. was relied on, which enacts (§ 7.), " that no appeal in any case relating to bastardy is to be brought, received, or heard, unless notice be given according to that act, ten days before the next general quarter sessions, and recognizance entered into within three days after such notice." On the other side, it was contended, that as it appeared, by affidavits, to have been the practice of the sessions to enter such appeals without notice, and to adjourn them to the following sessions, the prohibitory words of the statute would be satisfied by holding, that the appeal could not be heard and decided at the next general quarter sessions, unless the notices and recognizances were given in time for such sessions. At all events, notice and recognizance having been, in fact, given in time for the sessions to be held by adjournment at Spalding, for another division of the county, Ulyatt was entitled to have the appeal received and heard. Rex v. Coystan, 1 Sid. 149. -But, per curiam. No alleged practice can prevail against the positive words of the act, "that no appeal shall be brought, received, or heard." The justices, therefore, had no power to enter or receive the appeal. And as to the Spalding sessions, they appear to be only adjourned sessions, whereas the words of the act are, "the next general quarter sessions of the peace for the county." The notice and recognizance were clearly too late, and this rule must be discharged.

By some statutes the magistrate is required to make known to the party convicted, at the time of such conviction, his right of appealing: and it should seem, that, in such cases, the magistrate ought to proceed to make known the necessary steps required by the statute to be taken by the appellant, such as the obligation of giving notice, and the like; otherwise, the appellant will, by the neglect, be discharged from such obligation. Thus in R. v. Justices of Leeds, 4 T. R. 583., one Coates had been convicted by two justices under the stat. 17 G. 3. c. 56. (Act for prevention of frauds by manufacturers and workmen, &c.) By the 20th section of that act, an appeal is given against convictions under it, and the justices convicting are thereby required to make known to such

of Leeds.

person convicted, at the time of such conviction, his right to Rex v. Justices appeal to the next sessions, &c., such person, at the time of such conviction, giving to such justices notice, in writing, of his intention to appeal, and also entering into a recognizance, at the time of such notice, with sureties, conditioned to try the appeal, &c.; and the justices at such sessions are thereby authorized and required, upon due proof made of such notice of appeal, either by the acknowledgment of the justices to whom the same shall have been given, or otherwise, to hear and determine, &c. and to award costs, &c. It appeared that the two justices informed Coates of his right of appeal: upon which he entered into a recognizance as directed by the statute, but gave them no notice, in writing, of his intention to appeal; for want of which, the magisstrates at quarter sessions thought they had no jurisdiction, and refused to receive the appeal: but the court of K. B. granted a mandamus, commanding them to receive and hear the appeal.Lord Kenyon C.J. "When the legislature directed the convicting magistrates to make known to the party convicted his right to appeal, they must be understood to mean that the justices should inform him of the necessary steps to be taken by him to enforce that right. These two magistrates, therefore, should have informed the person convicted, not only that he might appeal against their decision, but also of the necessity of giving them a notice, in writing, as well as of entering into the recognizance; otherwise the party convicted would be deluded by the act of the justices in taking the recognizance. This case is distinguishable from that cited, (Rex v. Justices of Yorkshire, 3 T. R. 776. post, p. 120.) because here the party is supposed by the legislature not to know the directions of the act, by their requiring the justices convicting to give him that information."-R. A.

But the principle of the above case seems to have no application, if the party convicted, upon being informed by the justice, pursuant to the statute, of his right to appeal, signifies his intention of not exercising that right. Thus in R. v. Justices of West Riding of Yorkshire, 3 M. & S. 493., a rule was granted for a mandamus commanding the justices to hear an appeal against the conviction of one Mawson under the statute just mentioned (17 G. 3. c. 56.). The rule was granted upon the ground, as alleged upon affidavit, that the two justices had not made known to him, at the time of such conviction, his right to appeal to the next general quarter sessions, as required by the 20th section of the act; and that as soon as he was informed of it, which was some time afterwards, he gave them notice, in writing, of his intention to appeal, and procured sufficient sureties for trying such appeal, but there not being any meeting of the said justices, or of any two justices, before the holding of the next general quarter sessions, he, with his sureties, attended at such sessions, and entered his appeal with the clerk of the peace, which appeal the justices at sessions refused to entertain, on the ground that he had not given notice of his intention to appeal at the time of his conviction, nor entered into a recognizance, although he proved the service of the above notice, and offered to prove that his right to appeal was not made known to him as above, and tendered his sureties to enter into the recognizance before the justices at sessions. The justices returned to the mandamus, that they caused the appeal to be entered, &c., and that upon the hearing, it was proved to them

of W. R. of Yorkshire.

Rex v. Justices that the two justices did make known to Mawson, at the time of his conviction, his right to appeal to the next general quarter session, and that Mawson failed to prove that he gave them notice of his intention to appeal: on the contrary, it was proved, that at the time the justices so made known to him his right to appeal, he waived any intention of appealing, by replying to them, that he thought he had better pay the penalty; and that Mawson did not, at the time of the conviction, or at any time before calling on the appeal, enter into a recognizance, &c.; wherefore the justices at sessions, conceiving that they had no jurisdiction, desisted from entering into the merits, &c. And the court of K. B. held that this was a good return.-Lord Ellenborough C. J. "How could it be necessary for the convicting magistrates to proceed, after the party had signified to them that he did not mean to appeal? The argument is founded upon a supposed necessity of engrafting the observance of all the provisions of the statute, as they apply to another state of things, as was the case of R. v. Justices of Leeds, into this case, where the same reason for their observance does not exist. All that the statute positively requires is, that the justices shall make known to the person convicted his right to appeal; they did so; and if he had thereupon gone on to signify his intention to appeal, non liquet that they would not also have proceeded to make known to him the farther steps that were to be taken by him but why should they do so nugatory an act as to inform him what he must do to appeal, and to enforce his right, after he had declined appealing, and waived his right?"

Where a certain ingredient in the right of appeal is omitted, and the

appeal therefore dismissed, the right is gone, although the time limited for appeal be not expired.

Notice of trial, &c. required by practice of sessions.

When an appeal is given to the next session upon certain conditions, as, ex. gr. a certain number of days' notice, entering into a recognizance, &c., in such cases, if an appeal be lodged at the proper session, but dismissed for want of compliance with any of the prescribed concomitants, the right of appeal is gone, and cannot be afterwards recovered or renewed. This was holden where a statute gave an appeal from a conviction to any quarter session, to be holden within six months, on condition of appellant giving ten days' notice of his intention to appeal, and entering into recognizance within four days after such notice: an appeal was lodged at the first session after a conviction, which the session dismissed instanter, from want of proof that any recognizance was entered into within four days of the notice given. At the following session, being still within six months after the conviction, a second appeal was lodged, which the court refused to hear. On a motion for a mandamus to compel the court to receive such second appeal, the court of K. B. held, that the first judgment on the formal objection was conclusive, and they could not take cognizance of a second on the same subject. The appellant might indeed have stopped his first appeal from being heard at all, when he discovered his deficiency of proof, and have lodged a second within the limited time, giving fresh notices, and being prepared with proof of entering into recognizance; but having proceeded to judgment, he was concluded. Rex v. Justices of Yorkshire, 3 T. R. 776. Talf. Dick. Sess. 431., 432. See also ibid. p. 601.

It is the general practice of the courts of quarter sessions to require that in all cases of appeal, not otherwise directed by law, a certain number of days' notice shall be given by the appellants to the respondents. In general, the court of K. B. will not interfere