1846.

REGINA

v.

Justices of
SURREY.

case, say, "all now understand, that when any such
tribunal" (i. e. the Court of Quarter Sessions) "declines to
exercise a jurisdiction imposed on it by the law, this Court
will enforce its proceeding; but that when it has acted, its
judgment can only be reversed here on a case stated by
itself for our opinion. There is certainly no want of facility
in granting such cases, and they are conveniently disposed
of on grounds well understood between the parties, while
the conflict of affidavits on such matters is of itself a real
evil." Should, however, the Court think that the present
is a case in which, supposing the justices to have wrongly
decided, it would interfere by granting a mandamus; then
it is submitted, that their decision was a right one, and that
the notice of appeal was insufficient. It begins "we being
a majority of, and acting for and on behalf of the church-
wardens and overseers of the poor of the parish of,” &c.,
and concludes with the signature of "F. Fielder, church-
warden of," &c., and of "J. Penhall," and three others,
"the overseers of the poor of," &c. Now it is clear, that
an appeal by a corporate body should appear to be the act
of the corporate body, and not of the majority only;
although the majority are enabled to give the notice. For
it is not quâ the majority of the corporate body, but quâ
the corporate body itself, that they have this power. Here
the churchwardens and overseers, it is true, are not a
corporate body, but for this purpose they stand on the same
principle; Rex v. Beeston (a). It is true that the case of
Regina v. The Justices of the West Riding (St. Pancras v.
Bradford) (b), appears to be an authority against the view
now submitted; but in that case, the notice was given by
"we, the undersigned," and the words "being a majority"
were merely descriptio personarum. In the present case,
the statement of the grounds of appeal is, "take notice
that the grounds of our appeal are," &c. The relative to
"our" is "we, being a majority of," &c., "the church-

(a) 3 T. R. 592, 4.

(b) Ante, p. 152.

wardens and overseers," &c. This case resembles in some respect that of Ex parte Harnley (a). There a party who was bound to sign a notice of appeal as "guardian," signed it as overseer, and the Court held the notice to be bad.

Pashley and Corner, in support of the rule. The case of Regina v. The Justices of Kesteven (b), does not apply. There the quarter sessions did hear the appeal, for they entered into the consideration of whether the grounds of appeal were sufficiently particular; and the respondent's case was opened, and a witness examined. So also in Regina v. The Justices of West Riding (Beckington v. Elland) (c), the point was as to the sufficiency of the examinations sent with the order of removal. The stat. 4 & 5 Wm. 4, c. 76, s. 81, prevents the respondents on the hearing of an appeal, from going into any other grounds of removal than those set forth in the examination. It would therefore be idle, where the sessions are of opinion that the grounds stated in the examination are not sufficient to sustain the removal, to force them to hear the appeal. A decision on an objection to the examinations has therefore been treated in the same light as a decision on the merits; Ex parte Ackworth (d), confirmed by Regina v. St. Mary, Lambeth (e). Here, however, a decision on the sufficiency of the notice of appeal, is a mere preliminary step to the appeal being heard. The statute requiring notice of appeal to be given, the 9 Geo. 1, c. 7, s. 8, enacts, that "no appeal-shall be proceeded upon," unless reasonable notice has been given. Therefore, it is clear the appeal has not been "proceeded upon," as the sessions decided that the notice was insufficient. So the 4 & 5 Wm. 4, c. 76, s. 81, enacts, that

(a) Ante, vol. 1, p. 673.

(b) 3 Q. B. 810; S. C. 1 D. & M. 113.

(c) 1 Car., Ham. & Allen's New Sess. Cases, p. 247.

VOL. III.

P P

(d) Ante, vol. 1, p. 718; S. C. 3 Q. B. 397, note (a).

(e) 2 Car., Ham. & Allen's New Sess. Cases, p. 36.

D. & L.

1846.

REGINA

v.

Justices of

SURREY.

1846.

REGINA

v.

Justices of
SURREY.

it shall not be lawful for the overseers of the appellant parish "to be heard in support of such appeal," unless notice of appeal be given fourteen days at least before the sessions. Secondly, the notice in the present case was properly given by the majority of the parish officers. [They were then stopped.]

WILLIAMS, J.-I do not think you need argue that point; for I do not entertain any doubt whatever upon it. The notice is expressed to be given "for and on behalf of the churchwardens and overseers," and at the end come the names of one person signing himself as a churchwarden, and of four persons signing themselves as overseers. Taking the whole together, I do not think there can be any doubt that this notice is given by and on behalf of the whole body of churchwardens and overseers. As to the other point, I will look into the cases.

Cur. adv. vult.

WILLIAMS, J.—This was an application for a mandamus to enter continuances and hear an appeal against an order of removal, on the ground that the justices had improperly refused to hear the appeal, on an alleged insufficiency of the notice of appeal. I thought, when this case was discussed, that the notice of appeal was sufficient; but I hesitated in consequence of some late cases, which decide that where the sessions have once taken in hand the hearing of the appeal, this Court will not interfere with their decision. But on consideration I am clearly of opinion that there was no hearing of the appeal in the present case, and that this was a mere preliminary objection. Thus in Rex v. The Justices of Gloucestershire (a), where, on an appeal by one of two overseers against the

(a) 1 B. & Ad. 1.

accounts of his colleague, after one witness had been examined on the part of the respondent, an objection was taken that an appeal did not lie, and the sessions accordingly dismissed the appeal. On application to this Court for a mandamus, it was held that this objection in its nature was a mere preliminary one, that went to deprive the sessions from exercising any jurisdiction, and that, therefore, there had been no hearing, and that a mandamus should issue. And in a late case, Regina v. The Justices of Kent (a), the Court acted on this principle in issuing a mandamus to hear an appeal against an order of removal of a pauper lunatic, where the justices had refused to hear it, on the ground that the notice of appeal was insufficient. If these cases stood in need of any confirmation, I think the statute of 9 Geo. 1, c. 7, s. 8, is a strong confirmation of the correctness of this view; for it says, that if the justices shall find a reasonable notice has not been given, they are then to adjourn the case till the next sessions, and then and there to "finally hear and determine the same." It seems to me that the statute puts the " hearing and determining the appeal" in direct contradistinction to deciding on the validity of the notice. I therefore think that this rule must be absolute.

1846.

REGINA

บ.

Justices of
SURREY.

Rule absolute.

(a) 2 Q. B. 686; S. C. 2 G. & D. 152.

1846.

Assumpsit.

tion alleged

SHORT v. STONE (a).

(In the full Court.)

ASSUMPSIT. That in consideration that the plaintiff The declara- being then unmarried, at the request of the defendant, had then promised the defendant to marry him, he the defendant then promised the plaintiff to marry her within a reasonable time next after the defendant should be thereunto requested by the plaintiff. And the plaintiff avers that she, confiding, &c., hath always hitherto remained and continued, and still is, sole and unmarried, request, stated and was always from the time of the making of her said for breach that promise until the marriage of the defendant as hereinafter

a promise to marry "within a reasonable time after the defendant should be thereunto requested by the plaintiff;" and without averring a

the defendant

married

defendant was

never re

had wrongfully mentioned, ready and willing to marry the defendant, another person, whereof the defendant hath always had notice. Yet the Plea, that the defendant, disregarding his said promise, after the making thereof, and before the commencement of this suit, to wit, on, &c., wrongfully and injuriously married a certain other person, to wit, one, &c., contrary to his said promise, to the plaintiff's damage, &c.

quested to
marry the
plaintiff:
Held, on
special de-
murrer, that
the declaration

was good, as
shewing a

breach of con

tract by the
defendant,
which dis-
pensed with
any necessity
for alleging
a request;
and that the
plea was con-
sequently bad.

Second plea. That the defendant was not at any time before the commencement of the suit, requested by the plaintiff to marry her according to his said promise in that behalf. Verification.

Special demurrer, assigning for cause, amongst others, that although the defendant by this plea confessed the promise and breach as alleged in the declaration, he had not avoided the same, but stated a fact immaterial to the merits of the action.

The points marked by the plaintiff for argument were, that the declaration was good, inasmuch as it alleged an act done, by which the defendant disabled himself from performing his promise, that he thereby dispensed with the performance by the plaintiff of the condition precedent, (a) See this case, ante, vol. 2, p. 792.