calculating one day exclusive of that of giving the notice, and the other day inclusive of the first day of the sessions, the appeal was dismissed for want of compliance with a rule of the sessions, that such a notice should be "exclusive of the day of the notice, and of the day of holding the sessions at which the appeal was to be tried," a mandamus issued to compel the hearing of the appeal (k). This decision was followed up by another (1) on 55 G. III. c. 68, s. 3, which required "ten days' notice" of appeal to the sessions against an order for stopping up highways. The sessions made a rule in cases of appeal not otherwise directed by law, that ten days' notice should be given exclusive of the day of notice, and of the first day of the sessions, and dismissed an appeal on the above statute for non-compliance with it. But a mandamus issued to hear the appeal, the court saying that it was not competent to the sessions to impose a rule of practice contrary to the act, which meant ten days' notice, one inclusive and the other exclusive, so that either the rule of sessions practice did not apply, or, if it was intended to do so, the court would exercise its discretionary power of controlling it. A like decision took place where the sessions. by their practice made service of a notice requisite to the hearing of an appeal, though the act which gave it was silent on the subject (m). So where an appeal was formally entered at a sessions, as an appeal by an individual named, against the accounts of the "churchwardens and overseers" of a parish, and the appellant served a notice of it directed to the overseers only, it was held that as the churchwardens had not, in fact, received or disbursed any parish money, or kept any account, it was evident to one looking at the subject matter of the appeal, that it was substantially against the accounts of the overseers, to whom notice had been given, and the sessions were ordered to hear the appeal (n).

It may turn out a safe criterion, by which to judge whether the court above will or will not interfere with those decisions of a quarter sessions which hinge on its own rules, to consider, whether the point be one of pure practice for the regulation of its own proceedings, and as such, necessarily within its own discretion to adjudicate on, or one which also involves a legal question, and of which accordingly, though the magistrates are judges, they are not sole judges (o). The question which

(k) R. v. Lancashire (Justices), 7 B. & Cr. 691. Explained by Parke, J., 5 B. & Adol. 671, 672.

(1) R. v. Yorkshire (Justices, W. R.) in re Bower, 4 B. & Ad. 685, relied on per Cur.in R. v. Goodenough, 2 Ad. & E. 469.

(m) See R. v. Staffordshire (Justices), 4 Ad. & E. 842.

(n) R. v. Norfolk (Justices), 2 B. & Adol. 944.

(0) Suggestions by the observations of that most able judge, Mr. Baron Parke,

frequently occurs, viz. What is that "reasonable" notice of appeal which gives a court of quarter sessions jurisdiction to hear it? is one of the latter kind; in R. v. The Justices of Wilts (p), the court interposed to prevent what appeared to them an unjust result of a novel practice at the sessions.

Costs of Appeals "heard and determined" at Quarter Sessions.]— The power to give costs is not incident to the authority of the sessions, nor does it exist at common law: and therefore they never can be given, unless by the words of the particular act under which the justices are acting at the time. Whenever the sessions grant costs, they form part of the judgment of the court, and the amount must be ascertained by and in the order itself (q); for they have no power to grant costs generally, like the courts at Westminster, to be afterwards taxed by the proper officer; though they may direct the clerk of the peace to ascertain and report to them the items of expenditure which may form the grounds of their decision; but they must themselves determine the sum to be paid, for they cannot delegate their authority (r). Such order, when made, cannot be enforced by attachment; but the party who disobeys it after it has been personally served on him, will be liable to indictment for the misdemeanour, and punished for his contempt by imprisonment and fine.

By the practice at many sessions, forty shillings costs is allowed to the party succeeding on an appeal, in which costs may be given. Sometimes, when notice of appeal is given and not countermanded, the practice is to refuse the appellant leave to enter and respite his appeal, unless he agrees to pay the costs of the day (s). In the case of an appeal against a poor's rate, unless the appeal is entered, the sessions cannot order the appellant to pay the costs which his notice may have occasioned to the respondents in preparing to resist the appeal; for it

then a member of the court of king's bench, on R. v. Wilts (Justices), 10 East, 404, made by him in R. v. Lancashire (Justices), 7 B. & Cr. 691; R. v. Yorkshire (Justices, W. R.), 5 B. & Adol. 671, 672. The case of R. v. Surrey (Justices), as reported in 1 D. & R. 162, has some expressions of Lord Tenterden contrary to this, which, however, do not occur in the report in 5 B. & Ald. 539. In another case also (R. v. Monmouthshire (Justices), 3 D. P. C. 311), Patteson, J., said of R. v. Wilts (Justices), 10 East, 404, that the judges thought many of its

expressions went too far; for it pro-
ceeded entirely on the attorney having
acted in ignorance of a new practice
which had only existed for two sessions,
and did away with the former practice.
(p) 10 East, 404, supra. And see last

note.

(q) Ex parte Holloway, 1 D. P. C. 26. (r) Ante, p. 656.

(s) R. v. Monmouthshire (Justices), 1 B. & Adol. 895. See Porter v. Cooper, 2 Cromp. M. & R. 232; 4 Tyr. R. 456; King v. Taylor, 2 Cromp. M. & R. 235; 5 Tyr. 804.

is not "heard and determined"(t): but if it was entered and respited, and opposition to it is afterwards abandoned by the respondents, so that the rate was quashed without more, and the appeal allowed, it was held to have been "heard and determined" so as enable the sessions to give the appellant the costs incurred down to the time of abandonment (u); and the like, if, after the appeal was entered and respited, a notice of appeal given for the second sessions was countermanded, and the appellant did not appear then to support his appeal (v).

(t) R. v. Essex (Justices), 8 T. R. 583, on 17 G. II. c. 38, s. 4. Appellant countermanded his notice of appeal the day before the sessions.

(u) See R. v. Cawston, 4 D. & R. 445. See 2 Adol. & E. 374.

(v) Ex parte Holloway, 1 D. P. C. 26.

CHAPTER X.

OF APPEALS AGAINST POOR-RATES; THE APPOINTMENT OF OVERSEERS; AND OVERSEERS' ACCOUNTS.

SECTIONS.

I.

II.

III.

Of the Right of Appeal against Poor-Rates, and to what Sessions.
Of the Conditions of Appeal against Poor-Rates; as Notice, &c.
Of the Grounds of Appeal against Poor-Rates, and herein

1. Of the Persons by whom the Rate is to be Made.

2. Of the Purposes for which the Rate may be made and its Proceeds applied.

3. Of the Subjects in respect of which the Assessment may be made; and herein of the Parties liable to be Assessed in respect of Occupation, &c. and the Principle and Proportion of Assessment.

4. Of the Manner in which Poor's Rates must be made, allowed, and published.

IV. Of the Trial of Appeals against Poor's Rates, and the Judgment of the
Session thereon; and herein of amending Poor's Rates.

V.-Of Appeals against the Appointment of Overseers.
VI.-Of Appeals relating to the Accounts of Parish Officers.

SECTION I.

OF THE RIGHT OF APPEAL AGAINST POOR-RATES.

How Originates.]—The right of appealing against rates for relief of the poor was given originally by 43 El. c. 2, s. 6, which enables any persons "who shall find themselves grieved with any cess or tax, or other act done by the churchwardens and other persons, or by the justices allowing the rate," to appeal generally to the general quarter sessions, who were to make such order thereon as by them should be thought convenient; the same to conclude and bind all parties. This provision was thought to confine the remedy to persons complaining of pecuniary grievance; and, therefore, was supposed not to apply to persons who were themselves improperly omitted, with a view to deprive them of their elective franchise in boroughs, where being rated is a part

of the qualification of a voter; or to persons complaining that others, not bona fide rateable, were introduced on the rates in order to give that franchise. This inconvenience was mainly felt in the elections for Westminster, before the passing of 2 W. IV. c. 45, which enables 107. householders to claim to be rated, and to vote, if not rated accordingly. Consequently, more extensive words were introduced into 17 G. II. c. 38, s. 4, with a view to this particular evil. That enactment gives the right of appeal to any person who "shall find himself aggrieved by any rate or assessment made for the relief of the poor; or shall have any material objection to any person or persons being put on or left out of such rate or assessment; or to the sum charged on any person or persons therein; or shall have any material objection to such account (i. e. the overseers' account) as aforesaid, or any part thereof; or shall find himself aggrieved by any neglect, act, or thing done or omitted by the churchwardens and overseers of the poor, or by any of his majesty's justices of the peace." The safest remedy against an improper rating is by appeal; for, if the objections rest on the uncertainty of the specification of property in the rate (a), or on any other ground short of absolute want of jurisdiction by the justices (e. g. the nullity of the rate as regards the party assessed, where he has no visible, real, or personal property, so that he is not rateable at all—or its not having been duly published, &c.), an appeal is the only remedy (b). A rate cannot be abandoned by overseers after its allowance by the justices and publication in the church (as to which see post, section 4 of this chapter); and the only mode of getting rid of it is by quashing it at the sessions on appeal (c). Thus, where a sessions refused to hear an appeal against a rate, because the respondents had previously given notice of abandoning it, a mandamus issued to compel the hearing (d).

(a) Cortis v. Kent Waterworks Company, 7 B. & C. 314, 333, 334; Hutchins v. Chambers, 1 Burr. 580. (b) See Marshall v. Pitman, Bing. 595, Hil. 1833, collecting the cases from Milward v. Caffin, 2 Bla. R. 1330. See also the note to 5 Ad. & El. 8, and Sibbald v. Roderick, 3 P. & D. 106 (Mich. 1839) Trespass, replevin, and case for excessive levy, are the other remedies, 9 Bing. 595; 1 Ad. & E. 264.

As to remedies by appeal under local acts, see R. v. Kent (Justices), 9 B. & C. 283; R. v. Tucker, 3 B. & Cr. 544; R. v. St. James, Westminster, 1 Ad. & E. 241; 4 Nev. & Man. 499; R. v. Suffolk (Justices), 1 B. & Ald. 640. The

Sudbury act, R. v. Norwich (Justices), 3 D. & R. 42.

(c) R. v. Cambridge (Justices), 2 Ad. & E. 370; but the court would not give, against the parish officers, costs of application for a mandamus, and of that writ under 1 W. IV. c. 21, s. 6. The same law applies to a borough rate in nature of a county rate. See post, Ch. XIV.

(d) See the Milborne Port case, Phillipps's Election Cases, 275. This doctrine was acted on by the late Lord Tenterden when recorder of Reading, and since by a committee of the House of Commons in the Reading Election case, 1827; and see 2 W. IV. c. 45, s. 27.