VI. Summons thereupon. County of } To the constable of in the said county. WHEREAS information hath been made before me, J. P. esquire, one of his majesty's justices of the peace in and for the said county, by A. I. of in the county ofof that A.W. in the said county, labourer, was on the day of -instant, duly summoned as a witness to give evidence before J. P. and K. P. esquires, two of his majesty's justices of the peace acting in and for the said county, [or, as the case may be,] at in the said county, on in the in the day of instant, at the hour of eleven in the forenoon of the same day, touching a complaint against B. A. of said county, alehouse-keeper, victualler, and a retailer of beer and ale, for selling one quart of ale which was fraudulently diluted, [or, adulterated, as the case may be,] knowing the same to be so, [or, as the case may be,] contrary to the form of the statute in such case made and provided; and that the said A. W. did wilfully neglect and refuse to appear at such time and place as aforesaid, and did not assign a reasonable excuse for such his neglect and refusal: Whereby and for which neglect and refusal the said A. W. hath forfeited the sum of 40s., one moiety thereof to the use of his majesty, his heirs and successors, and the other moiety to the said A. I. who informed me of the said offence: These are therefore to require you to summon the said A. W. to appear before me and others of his majesty's justices of the peace for the said county, in the said county, on the day of at instant, at the hour of eleven in the forenoon of the same day, to answer to the said information, and to be further dealt with according to law. And be you then there to certify what you shall have done in the premises. Herein fail you not. Given under my hand and seal the day of in the year of our Lord one thousand eight hundred and twenty VII. Warrant of Distress thereon. J. P. (L.S.) WHEREAS A. W. of in the said county. in the said county, labourer, is this day duly convicted before us J. P. and K. P. esqrs., two of his majesty's justices of the peace in and for the said county, by the oath of A. X. a credible witness, [or, A. X. and B. X. two credible witnesses, as the case may be,] for that he the said A. W. on the instant, duly summoned as a witness to give evidence before J. P. and K. P. esquires, two of his majesty's justices of the peace acting in and for the said county, [or, as the case may be,] at in the said county, onthe at the hour was of day of in the -noon plaint against B. A. of in day of of the same day, touching a comin the said county, alehouse-keeper, victualler, and a retailer of beer and ale, for selling one quart of ale which was fraudulently diluted, [or, adulterated, as the case may be,] he the said B. A. then and there well knowing the same to be so, [or, as the case may be,] contrary to the form of the statute in such case made and provided: and that the said A. W. did wilfully neglect and refuse to appear at such time and place as aforesaid, and did not assign a reasonable excuse for such his neglect and refusal; whereby and for which neglect and refusal he the said A. W. hath forfeited the sum of forty shillings, one moiety thereof to the use of his majesty, his heirs and successors, and the other moiety to A. I. who informed us of the said offence: These are therefore to authorize and command you to levy the said sum of forty shillings by distress of the goods and chattels of him the said A. W.; and if within the space of four days next after such distress by you taken, the said sum of forty shillings, together with the reasonable charges of taking and keeping the said distress shall not be paid, that then you do sell the said goods and chattels so by you distrained; and out of the money arising by such sale, that you do pay one-half of the said sum of forty shillings to the said A. I. and the other half to the use of his majesty, returning the overplus on demand unto him the said A. W., the reasonable charges of taking, keeping, and selling the said distress being first deducted. And if sufficient distress cannot be found of the goods of the said A. W. whereon to levy the said sum of forty shillings, that then you certify the same to us, together with the return of this precept. Given under our hands and seals the day of in theyear of the reign of our sovereign lord George the Fourth, and in year of our Lord one thousand eight hundred and the VIII. Recognizance (a) or Surety on stat. 3 G. 4. c. 77. § 14. County of BE it remembered that on the of} in the day of year of the reign of our lord George the Fourth, of the U. K. of Great Britain and Ireland, king, defender of the faith, B. A. of in the said county, alehouse-keeper, [or, victualler, as the case may be,] C. D. ofin the county of -, yeoman, and I. D. of the same place, yeoman, personally came before us J. P. and K. P. esquires, two of the justices of our said lord the king assigned to keep the peace of the said county, and acknowledged themselves to owe to our said lord the king, that is to say, the said B. A. the sum of· pounds, and the said C. D. and I. D., each the sum of pounds separately, of good and lawful money of G. B., to be made and levied of their goods and chattels, lands and tenements respectively, to the use of our said lord the king, his heirs and successors, if the said B. A. shall make default in the condition hereon indorsed [or, hereunder written]. (a) The stat. does not direct that the justices shall take a recognizance, but that the person convicted shall give security to their satisfaction (ante, 14). I know of no other security which justices are empowered to take, and this was the construction formerly put on stat. 18 Eliz. c. 3. where the expression unless they shall put in sufficient surety to perform the said order, "or else personally to appear at the next general sessions of the peace," (1 Burn, 265.) was construed to mean by recognizance. Ed. No appeal lies to the sessions from a convic ale without an excise licence under 48 G.3. c.143. § 5. The condition of the above written [or, within written] recogniz ance is such, that whereas the said B. A. was this day duly convicted before us, the justices aforesaid, of having on the day of sold ale [or, beer, as the case may be,] fraudulently diluted, [or, adulterated, as the case may be,] he the said B. A. then and there well knowing the same to be so, [or, as the case may be,] whereby and for which offence he the said B. A. hath forfeited the sum of -pounds: Now if the said B. A. shall duly prosecute an appeal against the said conviction, at the next general or quarter sessions of the peace to be holden at· in and for the county of- aforesaid, and in case the said conviction shall be then and there confirmed by the Court, if he the said B. A. shall forthwith duly pay or cause to be paid the said penalty of pounds, together with the costs and expenses expressed in the said conviction, then the said recognizance to be void, or else remain in full force. Taken and acknowledged the day and year first above [or within] written, before us, See 1 Burn, p. 39. J. P. K. P. Ercise Licence. Rex v. Hanson, E. 2 Geo. 4. 4 B. & A. 519. The defendant, on the 25th day of March, 1820, was convicted in the penalty of tion for selling 50l. by two justices for the W. R. of Yorkshire, for having within three months last past, (to wit) on the 22d day of February, 1820, at Elland, in the West Riding, sold beer and ale by retail, to be drank and consumed in his house and premises, without first taking out an excise licence authorising him so to do, contrary to the 48 Geo. 3. c. 143. § 5. Against this conviction the defendant appealed to the next sessions held at Pontefract, who allowed the appeal and quashed the conviction, no evidence being offered in support of it. Upon which the proceedings were removed into the court of K. B. by certiorari. A rule nisi was obtained, calling on the defendant to shew cause why the order of sessions should not be quashed, upon the ground that no appeal lay to the sessions from the conviction in this case, and that, therefore, they had no jurisdiction to quash it. After argument Abbott C. J. said, the clause of reference in the 48 Geo. 3. c. 143. only applies to such powers, &c. contained in laws relating to his majesty's revenue of excise, as are provided and established for managing, raising, levying, collecting, mitigating, or recovering, adjudging or ascertaining, the duties thereby granted. Now the 35 Geo. 3. c. 113. imposed no duty, and is not an excise law. It is not, therefore, one of the laws referred to. Its object was the regulation of the police, and the provisions are quite distinct from those of 48 Geo. 3. c. 143. If, therefore, a person sells ale without the magistrates' licence, he sells it subject to the penalty of 201. provided by that act. Against a conviction for such penalty he may appeal. But under the 48 Geo. 3. c. 143. he is liable to a penalty of 501. for selling without an excise licence, and there is no appeal given. For the rule of law is, that although a certiorari lies, unless expressly taken away, yet an appeal does not lie, unless expressly given by statute. No act of parliament can be produced giving an appeal in the present case. The order of sessions is therefore wrong and must be quashed. 1 Burn, 44. A certiorari lies, unless expressly taken away, but an appeal does not unless ex pressly given by statute. 27 Aliens. [3 G. 4. c. 97.] STAT. 3 G. 4. c. 97. after reciting stat. 56 G. 3. c. 86. (1 Burn, 75.) and stat. 1 G. 4. c. 105.. (1 Burn, 823.) Enacts, "that the said first recited act shall be and the same is hereby further continued in force, from the expiration thereof, for the term of two years." 3G.4. c.97. continuing stat. 56 G.3. c.86, for two, years. Appeal (Notice.) REX Stat. 50 G.3. c.48. § 25. provides that any party aggrieved tion under that by the convicact, who shall enter into a recognizance to appear at the shall be at liberty to appeal to such sessions. Held, that this dispenses with next sessions, the necessity of any notice of appeal; and that if the party duly enter into the recognizance, the sessions are bound to hear the appeal. (a) 5 M. & S. Not yet report ed. the informer must have known that it was the intention of the party (b) Abbott C. J. convicted to appeal, and any further notice was therefore unne- and Holroyd J. cessary. I think therefore that this rule ought to be made abso- had left the lue. Best J. concurred. (b) R. A. Rex v. The Justices of Salop, T. 2 G. 4. 4 B. & A. 626. Rule calling upon the defendants to shew cause why a writ of mandamus should not be directed to them, commanding them to cause continuances to be entered, and hear the appeal of court. Where the notice of appeal is not required to be in writing, by the clause in the statute which directs it to be given, a parol notice is sufficient. Where, there fore, the sessions refused to receive evidence of a parol notice of appeal against an order of fi liation, the court granted a man damus. A notice in writing is not necessary unless so required by statute. (a) Abbott C. J. and Best J. had left the court. Where a statute gives an appeal, one Joseph Oliver against an order of two magistrates, under stat. 49 Geo. 3. c. 68. § 5., whereby the said J. O. was adjudged to be the reputed father of a bastard child. It appeared by the affidavits upon which the rule was obtained, that the order in question was made on the 30th January; that immediately upon the order being made the appellant entered into the recognizance required by the statute, before the justices who made the order; and that a regular notice of appeal to the quarter sessions, to be holden on the 30th April, was served on the 9th April, upon the churchwardens and overseers of the parish on whose behalf the order was made. When the appeal was called on for trial at the sessions, it was objected by the respondents, that no notice had been given to the justices who made the order, of the intention to bring the appeal, and of the cause and matter thereof, as required by the statute; and upon the 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 Rex v. The Justices of Leeds, 4 T. R. 583., and Rex v. The Justices of Essex, (ante, p. 27.) were cited. Bayley J., I am 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 cannot say that a notice in writing is necessary where it is not required to be in writing by the clause in the statute, which directs a notice to be given. An appeal is usually allowed by statute on 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. (a) R. A. Rex v. The Justices of Surrey, H. 2 & 3 Geo. 4. 5 B. & A. 539. R. N. for a mandamus to the justices of Surrey to enter continuances and hear the appeal of Andrew Barnet against a conviction for gaming under 12 Geo. 2. c. 28. The defendant was convicted on the 6th November last, and entered into recognizances to appeal against it to the next quarter sessions. It was sworn on the one side, and denied on the other, that at the time of entering into recognizances his attorney gave a verbal notice to the informer of his intention to appeal. The defendant attended in order to proable as to time, secute his appeal at the last January sessions, when there having been no notice of appeal in writing, the court refused to hear the 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 con notice need not be in writing, but a verbal notice, if reason is sufficient. |