« EelmineJätka »
nor after ad- So in Rex v. Justices of Buckinghamshire, 6 Dowl.& Ryl. 142., an journment by appeal, after hearing at one sessions, was respited until the folreason of di
lowing sessions, in consequence of an equal division of opinion vided bench.
on the bench as to the merits; and the court of K. B. held, that no fresh notice of trial was necessary for the following sessions, although by the practice of the sessions, in case of a respited appeal, a fresh notice for the following sessions was requisite.
Further, if an appeal be respited at the instance of the respondents, the appellant is entitled to be heard at the ensuing sessions, without proving the original notice of appeal, although such notice be necessary, under the statute on which the appeal is grounded, to give the court jurisdiction. For it must be considered that the respondents have acted upon that notice, so as to make further proof unnecessary.
Rex v. Justices of Hertfordshire, 4 B. & Adol. 561. Where an ap
Where an appeal is entered after due notice, and then respited, peal is respited at the instance of the appellants, they are not bound, when the appeal after due no- comes on to be heard, to prove any fresh notice of trial for the tice, the appel- then sessions, although they may still be called upon to prove lant need not
the original notice. Thus in Rex v. West Riding of Yorkshire, give notice of trial of that re- 5 B. & Adol. 667., by a private act of parliament, parties were spited appeal. enabled in certain cases to appeal to the quarter sessions for a
particular district, giving ten days' notice. The act said nothing as to further notice in the event of such appeal being respited, nor did it appear, that there was any rule of practice on the subject at those sessions. An appeal under the statute, of which due notice had been given, was respited, and came on at a subsequent session, pursuant to the respite. The appellant was called upon to prove that he had given notice of trial of the respited appeal, and on his failing to do so, the appeal was dismissed. The court of K. B. held, that the sessions were wrong in requiring such notice, and that the case was one in which that court might over-rule their decision ; and a mandamus was granted to hear the appeal. (a)
But where the appellants against an order of removal gave notice before Michaelmas sessions, that they would at these sessions enter and respite their appeal until the following sessions, when they should be ready to try, it was held by the court of K. B. to be necessary to give a fresh notice of trial for the Epiphany sessions. Rex v. Justices of Essex, 2 Chitt. Rep. 385. The distinction between this case and the preceding one of Rex v. The West Riding, appears to consist in the circumstance, that, in Rex v. Justices of Essex, the appellants had not given notice to try at the first sessions, the order having been served too late to enable them to do so.
In Rex v. Lambeth, 3 D. & R. 340., an appeal was entered at the Easter, and respited till the Midsummer sessions, and on the 24th of June, a copy of the order of respite was served on the respondents, without any notice of trial, and the respondents appeared at the following sessions in July. The court of K. B. held,
(a) In this case Palleson J. expressed an opinion, that if notice of a respited appeal had been required by the practice of the sessions, it might, perhaps, be too much to say that a decision according to that practice was illegal and not to be abided by.
that the sessions were bound to hear the appeal, though no other notice of trying the appeal had been given than the service of the order of respite. And Bayley J. said, that the service of the order of respite, after the date of the order, was a good and substantial notice of trial for the next sessions.
(2.) To whom and by whom Notice must be given. Res V. Justices of Lancashire, 1 B. & A. 630. An inclosure act To whom ; gave to the party aggrieved a right of appeal for any thing done in pursuance of that act, or of the recited (General Inclosure) act, on giving to the commissioners and the parties concerned ten days' notice in writing. Notice of appeal against an order ascertaining the boundaries between two townships, was served on the commissioner, but not on the lady of the manor, who was a party materially concerned in the question : it was held, that the notice was insufficient ; although the General Inclosure Act authorized the commissioners to ascertain the boundaries between the several parishes, and gave a right of appeal, on giving notice to the commissioner only. (See this case stated more fully, tit. Inclosure.)
In Rer v. Justices of Norfolk, 2 B. & Ad. 944., an appeal was entered and respited, entitled, “ A.B. appellant, and the churchwardens and overseers of B. respondents," and was stated to be against the allowance of the overseers’ accounts. Notice of the appeal, addressed to the overseers only, was afterwards served upon them, but no notice was given to the churchwardens, who, in fact, had not received or disbursed any money accounts. It was held, that the difference between the entry of appeal and the notice was immaterial; and that the churchwardens, having had no account to keep, were not entitled to notice as joint officers with the overseers.
Several persons, having a joint grievance, such as the omission by whom. of persons in the poor's rate who ought to be rated, may join in giving one notice of appeal to the parish officers. Rer v. Justices of Susser, 15 East, 206.
(3.) at what Time Notice must be given. In Rex v.Justices of Herefordshire, 3 B. 8; A.581., a party having In cases where had an order of filiation made on him as the father of a bastard the statute rechild, served a notice of appeal to the quarter sessions on the quires a certain morning of the 9th of October. The sessions were held on the clear notice of 19th, and the court refused to enter the appeal, being of opinion appeal, the that the notice was insufficient, the stat. 49 G. 3. c. 68. 95. re- number of days quiring that the person aggrieved by such an order should give is to be taken Dotice ten clear days before the quarter sessions, of his intention exclusively
both of the day to appeal, and the cause and matter thereof. A rule nisi for a of serving the mandamus to the justices to receive the appeal was obtained ; but notice and the the court of K. B. were of opinion that ten clear days meant ten day of holding perfect intervening days between the act done and the first day of the sessions. the sessions, and therefore held that the notice was defective ; and they referred to Roberts v. Stacey, 13 East, 21.
But where the statute merely requires that there shall be a cer- Secus where tain number of days' notice of appeal to the sessions, as “ ten days' the statute notice," it must be construed to mean so many days' notice, one
quires a certain inclusive and the other exclusive. Thus the statute 55 G. 3. c. 68. number of days
93. requires“ ten days' notice" of appeal against an order for stopping up a footway. In a late case, it appeared that, by a rule of the West Riding sessions, in case of appeal, “ not otherwise die rected by law,” ten days' notice is to be given, exclusive of the day of notice and first day of the sessions: and it was held that the statute meant ten days' notice, one inclusive and the other exclusive; that the session rule did not apply to this case; or, if it were intended to do so, the court of K. B. would use its discre. tionary power (see infrà) of controlling the practice. Rex v.
Justices of West Riding of Yorkshire, 4 B. & Adol. 685. Where the sta- Where the statute requires that the appellant shall give reasontute requires able notice, the reasonableness of the notice, in point of time, is reasonable no
a question for the justices in sessions to decide. Rex v. Justices of tice.
Surrey, 5 B. & A. 539. S. C. 1 Dowl. & Ryl. 160. (See this
case more fully stated, post, p. 126.) How far the
It has been laid down, in several cases respecting notices of apcourt of K. B. peals, that the sessions are the judges of their own practice, and will control ihat before the court of K. B. can interfere to regulate that practhe practice of tice, it must be shewn to be extremely wrong or unjust. sessions as to the time of
Justices of Esser, 2 Chitt. 385. giving notice. However, in Rex v. Justices of Wiltshire, 10 East, 406., Lord
Ellenborough C. J. said, that the magistrates certainly had a discretion to exercise with respect to what was reasonable time for giving the notice of appeal, but that the court of K. B. bad also a kind of visitatorial jurisdiction over them in the exercise of such discretionary power. According to R. v. Justices of Lan. cashire, 7 B. & C. 692., an appeal against an order of removal was dismissed, on the ground that the appellant had not given the notice required by the practice of the quarter sessions, one of the rules of which was, that in all cases of appeals to be tried (unless otherwise directed by the act of parliament), the appellants should give to the respondents fourteen days' notice in writing of such appeals, exclusive of the day of notice and the day of holding the sessions at which the same were to be tried. The attorney thought the fourteen days were to be calculated one day exclusive, the other inclusive. The court of quarter sessions dismissed the appeal, on the ground that the notice was one day too late.-Lord Tenterden C. J. “We think that justice will be most satisfactorily administered by ordering the justices to enter continuances and hear this appeal. They certainly have a discretionary power to make rules for the governance of the practice at the sessions, but the case of
The Justices of Wiltshire, shews that this court, for the purposes of justice, will interfere to control that discretion." Rule absolute, for a mandamus to hear the appeal.
But upon this case being cited in Rex v. West Riding, 5 B. & Adol. 671., Parke J. said, “ I do not quite approve of the language held in that case. If the sessions have a discretionary power on the subject, this court has not. The sessions are the judges of what is reasonable notice, but not the sole judges, and therefore this court may interfere with their decision upon it. They are, by law, to hear appeals only on reasonable notice, of which we, as well as they, are judges. But it is not correct to say that this court sets its discretion against theirs."
The 5th section of the Malicious Trespass Act, 1 G.4. c. 556. peal is given (repealed by 7 & 8 G. 4. c. 27.), gave an appeal to the sessions,
Where an ap
on condition that the party should give “immediate notice of on condition such appeal, and of the matters thereof,” &c. It was held, that of immediate a notice of appeal, given seven days after a conviction on this notice." statute, was insufficient. And Abbott C. J. remarked, that it was not necessary, in that case, to decide whether the words * immediate notice were to be construed so strictly, as to require that the notice should be given before the party quitted the justice's room, upon the determination of the complaint : but that they must mean prompt and expeditious notice, and a notice with reference to the merits of the case. Rex v. Justices of Huntingdonshire, 5 D. & R.588.
There has already been occasion to refer to the principal deci. From what sions, on a question of some difficulty connected with this subject, point the time, viz. the point whence the limited time is to be measured, within within which which the notice is required to be given. (See antè, p. 112.)
notice is required, begins
to run. (4.) As to the Manner of giving Notice. Rer v. Justices of Salop, T. 2 G. 4., 4 B. & A. 626. Rule calling Where the noupon the defendants to shew cause why a writ of mandamus should tice of appeal is Dot be directed to them, commanding them to cause continuances not required to to be entered, and hear the appeal of one Joseph Oliver against an be in writing, order of two magistrates, under stat. 49 G. 3. c. 68. 95., whereby by the clause in the said J. 0. was adjudged to be the reputed father of a bastard which directs it child. It appeared by the affidavits upon which the rule was ob- to be given, a tained, that the order in question was made on the 30th January; parol notice is that immediately upon the order being made, the appellant entered sufficient. into the recognizance required by the statute, before the justices fore, the sessions who made the order; and that a regular notice of appeal to the refused to requarter sessions, to be holden on the 30th April, was served onceive evidence the 9th April upon the churchwardens and overseers of the parish of a parol noon whose behalf the order was made. When the appeal was tice of appeal called on for trial at the sessions, it was objected by the re. against an spondents, that no notice had been given to the justices who made ation, the court the order of the intention to bring the appeal, and of the cause granted a manand matter thereof, as required by the statute; and upon the damus. sessions holding such notice to be necessary, the appellant offered to prove that, previous to entering into the recognizance, he gave a parol notice to the justices who made the order, of his intention to appeal against it, and of the cause and matter of such appeal ; but the sessions would not allow such notice to be proved, and dismissed the appeal. The rule was obtained upon two grounds ; first, that the entering into the recognizance before the justices who made the order dispensed with the necessity of giving them a notice of appeal ; and, secondly, that in case a notice to the justices was necessary, the sessions ought to have received the evidence of a parol notice, which was tendered by the appellant. On shewing cause, the cases of Rerv. Justices of Leeds, 4 T. R.583., and R. v. Justices of Essex, (antè, p. 115.) were cited. -- Bayley J. “Iam of opinion that in this case the sessions ought to have received the evidence of the parol notice of appeal which was tendered by the appellant. It may be convenient that a notice of appeal, particularly where it is a notice of the cause and matter of the appeal, should be in writing, and in many cases the statute giving the appeal requires that there should be a written notice : but we A notice in
Where a statute
writing is not cannot say that a notice in writing is necessary where it is not renecessary un- quired to be in writing by the clause in the statute, which directs less so required
a notice to be given. An appeal is usually allowed by statute on by statute.
certain conditions ; and when one of those conditions is, that the party appealing shall give a notice of his appeal, it would be to add a further condition, if we were to hold that such notice must be in writing."—Holroyd J. concurred.- Abbott J. and Best J. had left the court.-R. A.
R. v. Justices of Surrey, H. 2 & 3 G. 4., 5 B. & A. 539. R. N. gives an appeal, for a mandamus to the justices of Surrey to enter continuances the appellant and hear the appeal of Andrew Barnet against a conviction for giving reasonable notice to
garning under 12 G. 2. c. 28. The defendant was convicted on the other par
the 6th November last, and entered into recognizances to appeal ties, such no- against it to the next quarter sessions. It was sworn on the one tice need not side and denied by the other, that at the time of entering into be in writing, recognizances his attorney gave a verbal notice to the informer of but a verbal his intention to appeal.
The defendant attended in order to pronotice, if reasonable as to
secute bis appeal at the last January sessions, when, there having time, is suffi- been no notice of appeal in writing, the court refused to hear the cient.
appeal. The 5th section of the act giving the appeal states, that “persons aggrieved may appeal, giving reasonable notice to the prosecutor, and entering into recognizances,” &c. It was contended that the sessions were to judge what was a reasonable
notice of appeal, and they were of opinion that it must be a notice Where a statute in writing. - Sed per Abbott C. J. We are of opinion that where a requires reason- statute requires reasonable notice to be given, it does not necessarily able notice, it
mean that the notice should be in writing, but only that as to time or does not necessarily mean
number of days it should be reasonable. Here, however, as the that the notice fact is disputed, we shall only grant a mandamus to the justices, should be in commanding them to examine whether reasonable verbal notice writing. has been given, and in that case to enter continuances and hear
the appeal. - Rule accordingly, What is a suf. It is not unusual that the right of appeal, given by a statute, is ficient state- upon condition, that the party appealing shall give notice in ment of the
writing, not only of his intention of bringing such appeal, but cause and mal- also of the cause and matter thereof. And there have been several
decisions upon the question, what kind of statement in the notice of the cause and matter of appeal shall be considered a compli
ance with the terms of such a statute. Instances of de- Rer v. Justices of Oxfordshire, 1 B. & C. 279. S. C. nomine fective notices. Rex v. Justices of Gloucestershire, 2 D. & R. 420. Notice of an
appeal against an order of filiation was given in the following form: “I, A. B. of, &c. intend, at the next general quarter sessions to be holden, &c. to commence and prosecute an appeal against an order of filiation made, &c., whereby I am adjudged to be the father of a bastard child, born on the body of E.R., and chargeable to the parish of S.” And the court of K. B. held, that this notice was insufficient, the cause and matter of appeal not being set out, as required by stat. 49 G. 3. c. 68. g 5. In giving judgment, Abbott C. J. observed, that the object of the legislature appears to have been, that the respondents should know precisely what objections they have to meet. But under the notice in question, the appellant might either have contended that he was not the father of the child, or that it was not born in the parish of s., so that he could not have been compelled to