It appeared from affidavits on the part of the defendant, that on the 16th of March 1846, an application for a licence was made by him at the annual licensing meeting, under 9, Geo. 4. c. 61. The Justices

Sessions shall be holden within twelve days next after such act shall have been done, and in that case to the next subsequent session holden as aforesaid, and not afterwards, provided that such person shall give to such Justice notice in writing of his intention to appeal, and of the cause and matter thereof, within five days next after such act shall have been done, and seven days at the least before such session, and shall within such five days enter into a recognizance, with two sufficient sureties, before a Justice acting in and for such county or place as aforesaid, conditioned to appear at the said session, and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded; and upon such notice being given, and such recognizance being entered into, the Justice before whom the same shall be entered into shall liberate such person, if in custody for any offence in reference to which the act intended to be appealed against shall have been done; and the Court "at such session" shall hear and determine the matter of such appeal, and shall make such order therein, with or without costs, as to the said Court shall seem meet; and in case the act appealed against shall be the refusal to grant or to transfer any licence, and the judgment under which such act was done be reversed, it shall be lawful for the said Court to grant or to transfer such licence in the same manner as if such licence had been granted at the general annual licensing meeting, or have been transferred at a special session; and the judgment of the said Court shall be final and conclusive to all intents and purposes; and in case of the dismissal of such appeal or of the affirmance of the judgment on which such act was done, and which was appealed against, the said Court shall adjudge and order the said judgment to be carried into execution, and costs awarded to be paid, and shall, if necessary, issue process for enforcing such order."

Section 29. enacts, "That in every case where notice of appeal against the judgment of any Justice in or concerning the execution of this act shall have been given, and such appeal shall have been dismissed, or the judgment so appealed against shall have been affirmed, or such appeal shall have been abandoned, it shall be lawful for the Court to whom such appeal shall have been made or intended to be made, and such Court is hereby required, to adjudge and order that the party so having appealed, or giving notice of his intention to appeal, shall pay to the Justices to whom such notice shall have been given, or to whomsoever he shall appoint, such sum, by way of costs, as shall in the opinion of such Court be sufficient to indemnify such Justice from all costs and charge whatsoever to which such Justice may have been put in consequence of his having had served upon him notice of the intention of such party to appeal; and if such party shall refuse or neglect forthwith to pay such sum, it shall be lawful for the said

present refused the licence. The defendant thereupon duly entered an appeal, at the April Quarter Sessions, under section 27. The appeal was not called on on that day, but on the 20th of April (to which day the Court was duly continued by adjournment), the appeal was heard, and the presiding Judge stated that the Court decided to refuse the licence, nothing then being said about any further adjournment, or about costs. On the 18th of June he was served with the order in question. It further appeared, that on the 16th of May the defendant's attorney was served with a notice that the appeal stood adjourned till the General Sessions for the county, to be holden on the 5th of May, and that the defendant, would be required to attend on the 22nd of May to hear judgment given in the matter of the appeal, and that he, the attorney, did attend on the 22nd of May, when the chairman stated that the appeal had been dismissed, with costs, and that the costs had been taxed at 16l. 19s. 2d., but there was on that day no hearing of the appeal.

Court to adjudge and order that the party so refusing or neglecting shall be committed to the common gaol or house of correction, there to remain until such sum be paid; and that in every case in which the judgment so appealed against shall be reversed, it shall be lawful for such court, if it shall think fit, to adjudge and order that the treasurer of the county or place in and for which such Justice whose judgment shall have been so reversed shall have acted on the occasion when he shall have given such judgment shall pay to such Justice, or to whomsoever he shall appoint such sum as shall in the opinion of such Court be sufficient to indemnify such Justice from all costs and charges whatsoever to which such Justice may have been so put; and the said treasurer is hereby authorized to pay the same, which shall be allowed to him in his accounts."

Section 34. enacts, "That no conviction under this act, nor any adjudication made on appeal therefrom, shall be quashed for want of form, or be removed by writ of certiorari or otherwise into any of His Majesty's superior courts of record; and no warrant of commitment shall be held void by reason of any defect therein; provided it be therein alleged that the party has been convicted, and that there be a good and valid conviction to sustain the same."

Section 21, which related to convictions for penalties under the act, provided, "That the Court (i. e. General or Quarter Sessions) might adjourn the hearing of such charge to the then next General or Quarter Sessions of the Peace, when the same shall be finally determined."

The affidavits in answer stated, that the adjournment had taken place for the purpose of taxing the costs, according to the usual practice of the Sessions; and that the Judge, on the 20th of April, had, in effect, only said that the licence would eventually be refused, and various instances were given to shew that the same course had been generally adopted as to costs in appeals of this nature as well as others.

The defendant's points were :-First, that although the certiorari was taken away by statute, yet inasmuch as the Court in this case had no jurisdiction to make the order at all at the sessions when and where it purports to have been made, the appeal having been heard and adjudged at a previous session, the certiorari will lie, and the order may be quashed for this fundamental error in the proceedings. Secondly, that the Court having adjudicated on the appeal at the General Quarter Sessions, commencing on the 1st of April, A.D. 1846, and ending on the 20th of the said month of April, the order made at the subsequent general Sessions commencing on the 5th of May, A.D. 1846, was wholly null and void. Thirdly, that the Court, by which the order purported to have been made, did not hear the appeal, and was not competent to make the order. Fourthly, that the order is, upon the face of it, wholly bad and defective. Fifthly, that the order purported to be an order of the Court, made at the general Sessions, commencing on the 6th of May, A.D. 1846, whereas in truth it was an order of the Court made at the general Quarter Sessions commencing on the 1st of April, A.D. 1846.

The prosecutors' points were:-First, that the record of the Sessions is, on the face of it, sufficient. Secondly, that the affidavits filed by the defendant could not be read, and that the defendant cannot, by affidavit, contradict the recorded proceedings and judgment of the Court of Quarter Sessions, and on such affidavits call on this Court to vacate such judgment. Thirdly, that if the affidavits filed on either side are, received, they shew that the several facts stated in the record of the Court of Quarter Sessions are therein truly stated. Fourthly, that the statute in such behalf (9 Geo. 4. c. 61. s. 27.) does not limit all jurisdiction to the very session at which the appeal was first NEW SERIES, XVII.—MAG. CAS.

lodged, and might have been tried, and so render null the proceedings on the adjournment, but that the original Sessions, which has jurisdiction to hear and determine the matter of such an appeal, has incidentally and equally jurisdiction to adjourn, and that the Court of Queen's Bench will not inquire into the grounds of such an adjourn

ment.

Pashley shewed cause.-The proceedings in this case were regular, and the order is good on the face of it. The appeal was dismissed with costs; and as they could not be taxed on the day the judgment was given, and as the amount of the costs must be inserted in the order, the adjournment was necessary-Sellwood v. Mount (2), The Queen v. Long (3). If the matters mentioned in the order have been falsely stated, an action will lie against the Justices, or a mandamus will perhaps lie to them, commanding them to make a true statement of the facts; but the Court will not enter into the question of the fact or manner of adjournment, so as to contradict the record by affidavit. Secondly, as there was an opportunity given to the defendant to be heard on the 22nd of May, that in fact amounts to a hearing-The Queen v. the Inhabitants of Church Knowle (4).

[COLERIDGE, J.-According to the facts, as they stand uncontradicted, the second Sessions proceed to award the 167. 17s. 9d. costs on no evidence whatever. When you look at the judgment of the Court, it clearly is for the expenses of a former hearing: the Sessions should have adjourned the Court, and not the cause.]

If that were so, the Sessions could not respite an appeal from one Sessions to another, which is constantly done for the purpose of giving the clerk of the peace an opportunity of taxing the costs. Wherever a Court has power to hear and determine, it has power to adjourn a case— -The King v. the Inhabitants of Kimbolton (5), The King

v. the Justices of Wilts (6), Keen v. the Queen (7).

[WIGHTMAN, J.-According to the affidavit of the appellant the Court gave judgment on the 20th of April.]

They intimated what judgment the Court would eventually pronounce, but they did not profess to bind the subsequent court, nor could they do so, and the matter stood adjourned.

The order then on the face of it shewing a judgment respited till the 22nd of May, the question will be, whether the Sessions had power to respite in this case, admitting that in ordinary cases such power exists. Now, the 9 Geo. 4. c. 61. s. 21. gives express power of adjournment in cases of offence against the act; and in the appeal clause, s. 27, the Sessions are empowered to "hear and determine the matter of the said appeal," and s. 29. gives the Justice power to award costs. It may be admitted that the 34th section does not take away the certiorari in this case; but if the effect contended for on the other side is to be given to the words "that the order is to be final and conclusive," their operation would take away the certiorari. In The King v. the Inhabitants of Kimbolton it was observed, that The King v. the Justices of Wilts perhaps went too far as applied to the particular statute then in question; but the general power of adjournment was not disputed.

[COLERIDGE, J.-The appeal clause, s. 27, appears to limit the right of appeal to the next Session, unless such Sessions shall not sit till twelve days after; and then goes on to say, that the Court at such "session" is to determine the appeal.]

"Session" must be taken to mean the same as "Sessions;" it is in effect the Court of Quarter Sessions. And "such Court" cannot be confined to the one occasion of its sitting; but must be taken to mean a court of sessions, with all its incidental powers, that of adjournment being one. It would, besides, be highly inconvenient if no power of adjournment existed. Suppose the Court were divided.

[LORD DENMAN, C.J.-In that case, the appeal would fall to the ground; and accord

(6) 13 East, 354.

(7) 16 Law J. Rep. (N.s.) M.C. 180.

ing to The King v. Jukes (8), it would appear that the direction to the Sessions to hear and finally determine, does not take away the certiorari after appeal.]

Martin, contrà. On the face of the prosecutor's own affidavits enough is shewn to quash the order. Those affidavits shew that the hearing took place in April: the order states it to have been in May; and it is clear that no adjournment of the appeal really took place after the 20th of April, when the matter was fully heard.

[LORD DENMAN, C.J.-It is contended on the other side, that the facts as they appear are equivalent to an adjournment.]

The facts are untruly stated on the order. It cannot be said that there was any adjournment of the hearing of the matter of the appeal. It is not disputed, that the Sessions are a continuing court with respect to matters over which it has a common law jurisdiction; but here, the question turns on the act of parliament. Enough is stated to shew that the Court had no jurisdiction, or, at all events, the Court will quash the order in order to have the facts truly stated.

LORD DENMAN, C.J.-I think the defendant is entitled to our judgment. I agree with Lord Ellenborough (9) as to the power of adjournment generally; but giving the fullest effect to his opinion, I think that under this particular act of parliament the Sessions had no power to adjourn the appeal. We may observe, that the question as to whether a licence is to be granted or not in any case, is one requiring a speedy decision. It is true that, by the 21st section, in cases of offences against the act, the hearing of the charge may be adjourned to the next General or Quarter Sessions; but in the 27th section no such words are introduced, and it would seem that the object of the act clearly was to have the matter disposed of at the particular sessions to which the appeal is given. A point has been made as to the inconvenience which might result in case the Justices were divided in opinion; but the only consequence would be, that the decision appealed against would stand unreversed. It might be, indeed, that at the hearing so long a time was

(8) 8 Term Rep. 542.

(9) The King v. the Justices of Wilts.

occupied by one party as to make it necessary to adjourn. If such party occasioned such delay for his own benefit, the law would take care that the other party should have a hearing, and should not be prevented from being heard by the conduct of his opponent. The 29th section carries the matter no further. I think that what took place on the first occasion was final, and there was no power of adjournment.

PATTESON, J.-I am of the same opinion. This case must be decided on the words of this particular act of parliament. As to the general power of adjournment, that is not denied. The 27th section expressly provides that the Court "at the next session" shall hear and determine the matter and give costs. I think that the Court are bound to adjudicate at that sessions. I should not be disposed to lay any great stress on the words of the 21st section, which gives an express power to adjourn in certain cases; but I think that it may be well held that that power is to be considered as inserted ex abundanti cautelá, and the power to adjourn otherwise existing at common law is not to be limited by this particular

enactment.

COLERIDGE, J.-I am of the same opinion; and I should be very sorry to say any thing having a tendency to break in upon the general power of the Sessions to adjourn; but I think the adjournment must be the adjournment of the hearing of the

case.

It is not intended that the hearing shall be at one sessions and the judgment at another; but it is clear that, in point of fact, what took place at the subsequent sessions was merely a sitting to pronounce judgment, not to hear. I think, looking at the act of parliament, and at the words of the 27th section in particular, that the case must be determined at the session to which the appeal is made, and that there is a clear distinction made between "session" and "sessions." The whole power of appeal depends on that

section.

WIGHTMAN, J.—I am of the same opinion. The whole question turns on the express words of the 27th section. I agree with my Brother Patteson that the words

Mandamus, Return to-Particularity.

A writ of mandamus, in setting forth the title and qualification of L. to have his name inserted in the burgess roll, alleged, inter alia, in the terms of the statute 5 & 6 Will. 4. c. 76. s. 9, that he had paid all such rates (including therein all borough rates directed to be paid under the provisions of that act,) as had become payable by him. The return traversed this allegation in its terms: Held, on demurrer, that the return was good.

Error from the Court of Queen's Bench. In this case a writ of mandamus had issued to the defendant, the Mayor of Dover, commanding him to insert the name of John Langley on the burgess roll of the borough of Dover. The writ professed to set out the title of Langley to be inserted on such roll, and stated, inter alia, that " he had been rated in respect of the premises occupied by him to all rates made for the relief of the poor of the parish of Charlton during the time of his occupation, and had before the 31st of August 1844 paid all such rates, including therein all borough rates directed to be paid under the provisions of 5 & 6 Will. 4. c. 76, as had become payable within six calendar months next before the 31st of August 1844."

The return to the writ traversed this allegation as follows.-"That the said J. Langley had not before the said 31st day of August, A.D. 1844, paid all such rates as in the said writ in that behalf mentioned,

Coram Wilde, C.J., Parke, B., Alderson, B., Coltman, J., Rolfe, B., Platt, B., and Williams, J.

including therein all borough rates directed to be paid under the provisions of the said act of parliament, as had become payable by him in respect of the said premises in the said writ in that behalf mentioned, except such as had become payable within six calendar months next before the said 31st of August 1844, as in and by the said writ in that behalf alleged."

To this return there was a demurrer stating the following ground:-"That it ought to have specified the rate or rates in respect of the non-payment of which the prosecutor's name was not inserted on the burgess roll of the borough, and that the return should have stated when and by whom and for what purpose the said rate or rates was or were made, and in what sum or sums, and in respect of what property the prosecutor was assessed, and when such rate or rates was or were payable, or have given some certain and definite description of such rate or rates."

The Court of Queen's Bench gave judgment upon this point in favour of the defendant (1).

A writ of error having been brought, the case was now argued by―

Peacock, for the Crown, who cited the following cases in the course of his argu

The King v. the Mayor of Abingdon, 2 Salk. 432.

The King v. the Mayor of Doncaster,
2 Ld. Raym. 1564.

The King v. the Mayor of York, 5 Term
Rep. 66.

Ashby v. Harris, 2 Mee. & Wels. 673;

s. c. 6 Law J. Rep. (N.s.) Exch. 182. The Queen v. the Mayor of New Wind

sor, 7 Q.B. Rep. 908; s. c. 14 Law J. Rep. (N.s.) Q.B. 319. Crompton, for the defendant, relied upon the following authorities:

Bacon's Abridgment, 'Mandamus,' (I), pl. 3.

The King v. Penrice, 2 Stra. 1235. The King v. Williams, 8 B. & C. 681; s. c. 7 Law J. Rep. M.C. 46.

(1) 16 Law J. Rep. (N.s.) M.C. 97.

The Queen v. the Mayor of New Wind

sor.

The King v. the Mayor of Lyme Regis, 1 Doug. 177.

The King v. the Mayor of Abingdon, 2 Salk. 431-2.

The Queen v. Twitty, Ibid. 433. The King v. the Mayor of Liverpool, 2 Burr. 723.

WILDE, C.J.-The Court are of opinion that upon this point the defendant is entitled to judgment. The prosecutor of the mandamus suggests as his title to be admitted upon the burgess roll, that he is an occupier of certain premises within the borough; that he had been rated in respect of such occupation to all rates made for the relief of the poor; and that he had paid all such rates as had become payable by him within six calendar months next before the 31st of August 1844. The question is, whether it is sufficient for the defendant to answer this suggestion by denying it in the very terms in which it is set up. There exists a long course of authorities to the effect that he may do so; and no decision has been brought before us, to-day, which at all interferes with the rule which those authorities establish. Upon this point, therefore, without travelling into the other points which have been raised, we entirely concur with the judgment of the Court of Queen's Bench, and therefore affirm it.

Pauper Lunatic-8 & 9 Vict. c. 126. ss. 58, 62, 80.—Proceedings ex parte.

It is no ground of objection to an order of Justices adjudicating the settlement of a pauper lunatic, or to an order for the costs of his maintenance, made under the statute 8 & 9 Vict. c. 126, that the proceedings before the Justices were taken ex parte, and without notice to the parish sought to be affected by the orders.

Semble-That upon appeal against an order of maintenance made under the above