Tuesday, the 15th September, the precept for which had been issued by them to the high constable on the Saturday preceding, and the notices of which were given by the constable to the justices acting for, and residing within the division in which the footway was situate, only on the preceding Monday; that after the order was made, the several notices prescribed by the 55 G. 3. c. 68. s. 2., were duly given; that at the subsequent quarter sessions the order was returned to the clerk of the peace in open court, and application made that it might be confirmed and inrolled, there being no appeal against it; but that the sessions had refused to grant the motion, on the ground that sufficient notice of the time and place of holding the special sessions had not been given to the justices of the limits within which the footway was situate. The sessions have exer Russell now shewed cause. cised a sound discretion in refusing to confirm this order. Although there was no appeal, still they might inquire whether it was made under the authority of 55 G. 3. c. 68. s. 2. That clause contains the word "confirm," which necessarily implies some previous inquiry. Then if so, they have exercised the power properly in this instance; for the special sessions was not convened after reasonable notice. And the authorities which may be cited to shew that a sessions may be holden without notice, apply only to a quarter sessions, general sessions, or petty sessions, which are holden by the justices, under the authority of their general commission, and not to a special sessions, which is one holden on a special occasion, for the execution of some particular branch of their authority (a), and (a) 2 Hawk. P. C. c. 8. s. 18. edit. 1795, 1818. The KING SHIRE 1818. The KING against he Justices of WORCESTER SHIRE, which must therefore conform to the directions of the statutes which authorize it. The authority here is derived from the statutes 55 G. 3. c. 68. s. 2. and 13 G. 3. c. 78. s. 62., which last expressly requires notice to be given of the time and place of holding a special sessions, to the several justices acting and residing within the limits. Notice was therefore necessary, and the sessions rightly decided, that a notice given to the justices of the division only the day before, was not a reasonable notice. Then the special sessions not being properly convened, the order made there was not suf ficient. Peake and Taunton, in support of the rule. There was no appeal in this case, and the sessions had no power to enquire further than whether the order appeared upon the face of it to have been made by two justices at a special session, and whether the notices of such order, as required by 55 G. 3. c. 68. s. 2., were duly given. The statute enacts, that, the notices of the order having been published, the order shall be confirmed and inrolled at the quarter sessions, unless there be an appeal; and the form of the notice given in the schedule to the act concludes by stating, "that the said order will, at the said quarter sessions, be confirmed and inrolled, unless, upon an appeal against the same to be then made, it be otherwise determined." So that where there is no appeal, the legislature intended that they should confirm the order of justices, if upon the face of it it appeared to be regular. But supposing the sessions to have the power of inquiring whether the order was made at a special sessions properly instituted, yet here they have come to a wrong conclusion. For no notice was necessary, inasmuch as the justices may hold a sessions, without any notice; and a special session is nothing more than a special sitting of justices, not necessarily requiring notice more than any other sessions. This order is made solely under the 55 G. 3. c. 68. s. 2., which requires that the justices shall make the order "at some special sessions," and says nothing about notice; and as that statute repealed the 13 G. 3. c. 78. s. 19., and substituted other provisions in lieu of it, it gave a power of holding a special sessions for this purpose, entirely independent of the 13 G. 3. c. 78. s. 62. Besides, by the 55 G. 3. c. 68. s. 2., any two justices may make the order, at some special sessions, though many justices be present, so that the presence of the other justices would not be attended with any beneficial effect. [Abbott C. J. Have you any authority to shew, that if five magistrates were assembled at a special sessions, two of them might make an order against the opinion of the other three?"] Though there is not any authority upon this point, the words of the 55 G. 3. c. 68. s. 2., seem to admit of such a construction. But even if it were necessary to give notice, then the notice given on the day before was sufficient, for the 13 G.3. c. 78. s. 62. does not specify any particular time for it.. ABBOTT C. J. I am of opinion that the sessions have properly refused to confirm this order. They can only be required to confirm an order, which has been made conformably to the authority given by the 55 G. 3. c. 68. s. 2.; and it was therefore a proper subject of inquiry, whether the special sessions, at which the order was made, was properly convened; because if it was not so convened, the order was made without lawful authority. This leads to the second subject for 1818. The KING against The Justices of WORCESTER SHIRE. 1818. The KING The Justices of SHIRE. consideration, namely, whether it was necessary to give notice of the special sessions to the justices of the limit or division, and whether the notice which appears to have been given, was sufficient. Upon this point it has been argued, that the 19th section of the 13 G. 3. c. 78., being repealed by the 55 G. 3. c. 68., the other provisions of the former statute will not apply to an order of justices, for diverting and turning a road, made under the authority of the 55 G. 3. c. 68. s. 2.; but I think the 62d section of the 13 G. 3. c. 78. is an existing provision, applicable to a proceeding by order of two justices, at a special sessions, under the 55 G. 3. c. 68. s. 2. The latter statute recites the former, and incorporates many at least of its provisions; and it enacts, that the justices, by their order, may divert and turn the ways therein mentioned, "by such ways and means, and subject to such exceptions and conditions, in all respects, as in the said recited act mentioned, with regard to highways to be widened or diverted." The statute thus referred to expressly provides, by the 62d section, that the justices may hold a special sessions for the purpose of that act, causing notice to be given of the time and place of holding such special sessions, to the several justices acting and residing within the limits; and I think, therefore, that upon the proper construction of these acts, taken together, it was necessary, in the present case, to give notice of the special sessions to the justices of the division. With respect to the notice which was given, I am clearly of opinion, that it was not sufficient; I do not lay down any precise rule as to the time of notice, which is not prescribed by the statute, but there must be reasonable notice, and the notice in the present case was not reasonable. I think, therefore, that the order was not one which the justices at their sessions ought to have confirmed, and that in refusing to confirm it, they properly watched over the interest of the public. The rule therefore must be discharged: and (as the application is against magistrates) must be discharged with costs. BAYLEY J. I commend highly the conduct of the sessions in refusing to confirm this order, and cannot help saying that there was a greater degree of haste on the part of the justices who made the order, than was quite proper. With respect to the inquiry made by the sessions, as to the order being valid, there can be no doubt but that they had a right to enquire whether the order presented to them, though there was no appeal against it, was made by proper authority, before they proceeded to confirm it. Upon the point of notice, I do not think that any occasional sitting of two magistrates is a special sessions, within the meaning of the statutes relating to this subject. A special sessions here means, a sitting convened by notice to the other magistrates of the division; and I think that, taking 55 G. 3. c. 68. s. 2., and the 13 G. 3. c. 78. s. 62. together, it is clear, that the legislature meant that a special sessions for this purpose, viz. for diverting and turning a way, should only be holden after notice to the justices of the division. A reasonable notice is therefore necessary; and I think the notice in the present case was not reasonable; that the order being made without a proper notice, was not an efficient order; and that the sessions acted very properly in refusing to confirm it. HOLROYD J. I am of the same opinion. The sessions were right in refusing to confirm an order which was 1818. The KING SHIRE. |