V. Justices of LONDON. respiting has not been taken away.] It seems that the Queen's Bench. 1846. practice of respiting has been exercised without sufficient attention to the object of the legislature. By The QUEEN stat. 9 G. 1. c. 7. s. 8., if there has not been reasonable notice of an appeal, the sessions are bound to adjourn it. That was in ease of the respondents, not of the appellants: it is inapplicable where there is no question as to reasonableness of notice of trial; Regina v. The Justices of Monmouthshire (a). In Rex v. The Justices of Cornwall (b) Patteson J. asked: "Is there any case in which it has been held that parties were not bound to appeal, when, by the practice of the sessions, there was time enough for giving notice?" [Patteson J. referred to Rex v. Justices of Shropshire (c).] That case was decided before those which have been cited. [Patteson J. Rex v. The Justices of Cornwall (b) raises only the question whether the time of appealing may run from the removal, as well as from the order (d). Suppose the sessions, in their discretion, choose to respite an appeal: can a later sessions treat the respite as bad?] They might have a power of that kind, analogous to that exercised by this Court in quashing a certiorari quia improvidè emanavit. Pashley, contrà, was stopped by the Court. Lord DENMAN C. J. Many things have grown up in practice which we might wish to see altered: but the greatest confusion would ensue if we were to alter a course so well understood as the practice on this point. (a) 3 Dowl. P. C. 306. (c) 7 East, 549. (b) 6 A.& E. 894. 898, (d) See the judgment of Littledale J. in Regina v. Justices of Salop, 6 Dowl. P. C. 28.34. And Regina v. The Recorder of Leeds, 8 Q. B. 623. 1846. The QUEEN Volume IX. It has always been understood that no notice is the same thing as no reasonable notice; and that, if no notice has been given of trial at the first practicable sessions, and they are the sessions next after the order, and the appeal is then entered, the Court of Sessions is bound to adjourn it. V. Justices of LONDON. PATTESON J. I am sorry that the question I asked in Rex v. The Justices of Cornwall (a) should have raised this point. When I asked it, I was not aware of the case of Rex v. The Justices of Shropshire (b), which decides that the justices are bound to receive and respite an appeal at the first sessions, where no notice has been given, though there was time for it. I never had the good fortune to attend sessions, and therefore was not familiar with the practice. WILLIAMS J. concurred. Rule absolute. The sessions heard the appeal, and quashed the order of removal on the ground that the respondents had not sent the appellants any copy of an indenture of apprenticeship described in the pauper's examination, and on which the alleged settlement in Stockport depended. Pashley, in Michaelmas term 1846, obtained a rule calling upon the churchwardens and overseers of St. Botolph to shew cause why they should not pay to the churchwardens and overseers of Stockport the costs of and occasioned by the application for the mandamus, and of and incidental to the writ, and the costs of this application. The affidavit on which the motion was (a) 6 A. & E. 898. (b) 7 East, 549. made stated that the churchwardens and overseers of St. Botolph shewed cause against the rule nisi for a mandamus, the justices (though served with the rule) not appearing. In opposition to the present rule the vestry clerk of St. Botolph made affidavit that the indenture was produced before the removing justices, and was ready to be exhibited in Court on the hearing of the appeal; and that the pauper was not settled in St. Botolph, but was, to the best of the deponent's information and belief, settled in Stockport. In Hilary term (January 30th), 1847, J. Payne shewed cause. The dismissal of the appeal in the first instance was the judgment of a court: and the respondents might fairly and reasonably support the Recorder's decision in their favour, by resisting the motion for a mandamus. The writ was granted by this Court on the authority of Rex v. The Justices of Shropshire (a), which contradicts a former case (Rex v. The Justices of the North Riding (b)), and in which the Court adopted the ruling of a single Judge in Rex v. The Justices of Buckinghamshire (c). In the last mentioned case, notice of trying the appeal had been given, though not in reasonable time: in Rex v. The Justices of Shropshire (a) there had been no notice; the cases, therefore, are not strictly similar. [Coleridge J. What difference is there between no notice and notice which is not reasonable? Rex v. The Justices of Shropshire (a) has always been considered as overruling Rex v. The Justices of the North Riding (b). You are seeking to re-open the question which we decided on the motion for a mandamus.] That motion also raised a Queen's Bench. 1846. The QUEEN V. Justices of Volume IX. question, on stat. 4 & 5 W. 4. c. 76., which the re[1847.] The QUEEN V. Justices of spondents might fairly litigate. And the affidavit which they now produce makes it probable that, if the appeal were heard on the merits (a), the settlement in St. Botolph would be disproved. Each party here ought to pay his own costs. Nothing has been laid down in Regina v. Justices of Surrey (b) which obliges the Court to decide otherwise. Pashley, contrà. The respondents, in resisting the mandamus, upheld a frivolous objection, against the generally received practice and two decisions of the Court. The question, even if admitting of argument, was not open: for, when one sessions had permitted the appeal to be entered and respited, a subsequent sessions could not annul that exercise of jurisdiction. No unfairness is imputed to the appellants. (He was then stopped by the Court.) Lord DENMAN C. J. I think there is nothing to take this case out of the ordinary rule. It is true that, when the appeal first came on, the respondents had the decision of a learned person in their favour: but that does not prevent the application of the rule when a mandamus is moved for, and granted after cause shewn. COLERIDGE J. (c) concurred. (a) It appeared, by the affidavit in support of the present rule, that the appellants, before the second hearing, gave the respondents notice of their intention to take the objection which finally prevailed, and the respond. ents, consequently, did not bring the pauper from Stockport as a witness. (b) Antè, p. 37. (c) Patteson J. was in the Bail Court. WIGHTMAN J. I had some doubt here, because that which led to the motion for a mandamus was the mistake of a court: and I do not wish to lay down any thing on the point so as to make a precedent: but, under the particular circumstances of this case, I think the rule must be made absolute. Queen's Bench. [1847.] The QUEEN V. Justices of Rule absolute. MILES against WILLIAMS. Thursday, which issues of fact and of law were joined, the plaintiff A RULE was obtained in last Hilary term, calling In a cause in on the defendant to shew cause why the plaintiff should not be at liberty to sign judgment nunc pro tunc as of Trinity term, 1844, for 177. 10s. and the costs of this cause. The following facts appeared on fact, and had a affidavit for and against the rule. The plaintiff sued as treasurer of the trustees under stat. 11 G. 4. & 1 IV. 4. c. lxix, local and personal, public, "for building a bridge across the river Avon, from Clifton in the county of Gloucester" &c. The action was for calls due from the defendant as a subscriber to the undertaking, which calls the trustees sued for in the name of their treasurer, according to sect. 85 of the statute (a). This, and seven other actions also brought by the trustees in the name of their trea surer for calls, were consolidated by rule of Court went to trial on the issues of verdict. The defendant obtained a new trial; and a second verdict was given for 1844, three first trial. The plaintiff, in the same term, set down the de murrers for argument; but, before the state of business admitted of the case being heard, he died. Judgment was afterwards given for the plaintiff on the demurrers, defendant not appearing. Held, that leave might be granted to enter up judgment as of Trinity term, 1844, the decision of the issues in law having been delayed till the plaintiff's death by the act of the Court. And such leave was given in a cause consolidated with the former by rule of Court, and not differing from it in any material respect. (a) The clause is set out in 3 Q. B. 848, note (a) to Miles v. Bough. |