down in Burn, Boscawen, Nares and other text books (a), that personal service of the summons is necessary, unless where it is expressly dispensed with by statute. Of this opinion was Lord C. J. Parker in Rex v. Simpson (b). In that case there was, in fact, a personal service; but the main point decided was, that a defendant who did not chuse to appear after being duly summoned might be convicted in his absence. If the defendant appears and makes a defence, it must be taken that he was duly summoned; but if the conviction is by default, it must be clearly shewn on the face of the record that he had been personally served, and had an opportunity of being heard. Here it could not be stated that the defendant was personally served, because what is recited is repugnant to the fact. In Reg. v. Dyer (c) it was stated that the defendant was summoned to appear and did appear on Tuesday, the 17th of April, &c. In fact the 17th of April fell on a Friday; and it being objected that the time of the summons being impossible, it was the same as if there had been no summons, the court quashed the conviction on this ground, saying, "there could be no such day, and therefore he could not appear thereupon; and, when the day is not set forth, his appearance on another cannot be intended." This is an authority in principle governing the present case. I think this conviction must be quashed for not shewing that the defendant was personally summoned.

HOLROYD, J. and LITTLEDALE, J. concurred.

Conviction quashed.

(a) See 1 Burn, Tit. Conviction, 737. Ed. 24. by Chetwynd. Bosc. 60. and Paley on Convictions, 2d Ed. by Dowling, 26.

(b) 10 Mod. 345.

(c) 1 Salk. 181. Vide Rex v. Picton, 2 East, 196. 1 Stra. 261. 1 Salk. 383. 3 Burr. 1785. and 1 East, 629.

1825.

The KING v. RICHARDSON.

The Court has THE defendant had been convicted of a nuisance in

no power to

a defendant to

master.

award costs to carrying on a manufactory, prejudicial to the health of prosecutors by indictment, the neighbourhood. A considerable expense had been nor to compel incurred by the prosecutor, and a proposition having been go before the made to the defendant, not to pray the judgment of the Court, on condition that he should pay the costs of the prosecution, and enter into a rule to discontinue the nuisance, which the defendant declined doing, it became a question whether the Court had power to compel the defendant to pay the costs, or order him to go before the

master.

After argument, Gurney for the prosecution and Scarlett for the defendants,

ABBOTT, C. J. said, it has been the practice for the Court in certain cases to suggest to defendants the propriety of going before the master, where there is no desire on the part of the prosecutor to press for judgment, and where the interests of public justice are not compromised by such a course of proceeding; but the Court has no power to compel a defendant to go before the master, nor does the law give costs to prosecutors by indictment; and therefore, in the present case, all that the Court can do is to impose a fine upon the defendant. Persons must not make a profit to themselves by the annoyance of their neighbours. The judgment of the Court is, that the defendant do pay to the king à fine of £200, and be imprisoned until that fine is paid (a).

(a) See stat. 1 & 2 G. 4. c. 41. s. 1. which relates to nuisances by the erection of steam-engines, within the operation of which statute, however, the above case could not be brought.

1825.

The KING v. The Justices of BUCKINGHAMSHIRE.

division of

UPON an appeal at the last Michaelmas sessions for Where an appeal, after the county of Bucks, touching the settlement of Francis hearing at one Smith, his wife and their three children, the justices assem-respited until sessions, was bled, being equally divided in opinion as to the settlement the following of the children, respited the appeal until the Epiphany consequence sessions, in sessions. At those sessions the order was confirmed, on of an equal the ground that there had been no fresh notice of appeal opinion on the given according to the practice of the court. Last Term bench as to a rule nisi for a mandamus was obtained, commanding - Held, that the justices to enter continuances and rehear the appeal notice of trial upon the merits at the ensuing Easter sessions, on the ground that no fresh notice was required, inasmuch as the appeal was not respited at the instance of either of the parties, but by the Court, on account of an equal division of opinion on the bench.

Dover now shewed cause, and produced an affidavit stating as a fact that the appeal had been entered as respited, and that, by the practice of the Buckinghamshire sessions in the case of a respited appeal, a fresh notice for the following sessions is indispensable. There was great good sense in this rule of practice; for in the interval the appellants might alter their mind and not chuse to prosecute their appeal farther, and the respondents could not come prepared unless they had a fresh notice. This was not like an adjourned appeal, where the Court, not being prepared to give judgment, might think proper to direct it to stand over until another session, in which case undoubtedly a fresh notice would not be necessary. But here the appeal was actually entered as respited, and therefore it came within the rule of practice.

Bligh, contrà, was stopt by the court.

the merits:

no fresh

was necessary

for the follow

ing sessions, although, in practice, the rule is otherwise, as to respited appeals.

1825.

The KING

ABBOTT, C. J.-The proceedings in this case were rather peculiar. It is more than probable, that when both parties came to the Epiphany sessions, they had The JUSTICES intended to try the appeal upon the merits, and were pre

v.

of

HAMSHIRE.

BUCKING- pared accordingly, but for this formal objection. In the case of a respited appeal, at the instance of either of the parties, it is a very reasonable rule of practice that a fresh notice of trial should be given. But here the respite, as it is called, took place in consequence of an equal division in opinion amongst those magistrates who composed the Bench at the Michaelmas sessions, and therefore no judgment could be given. The postponement which took place was then rather an adjournment than a respite. It was an adjournment at the instance of, and for the sake of the Court, and not at the instance of the appellants, or for their benefit. It seems to me, therefore, that no fresh notice of trial was necessary, and consequently the appeal ought to be heard again upon the merits as to the settlement of the pauper's children, unless the parties can agree to which parish they belong.

HOLROYD, J. and LITTLEDALE, J. concurred (a).

Rule absolute,

(a) Bayley, J. was absent.

A servant in

husbandry

The KING v. The Inhabitants of BOTTESFORD.

hired himself TWO Justices by their order removed John Whitehead

three weeks

before Mar- and Mary his wife from Bottesford in the county of Lei

tinmas at the

wages of £4, and received 1s. earnest from his master.

No time was mentioned.

He was to go into the service a week after Martinmas. On the day of his arrival his master said, “It is not the custom to hire servants in this parish for more than 51 weeks, which I forgot to mention to you at the time I hired you at B. and therefore, if you have no objection, I must hire you afresh for 51 weeks, and give you another shilling for earnest," which the servant accepted and remained in the service until the Martinmas following:-Held that the sessions did right in determining that this was no settlement.

cester to East Bridgeford in the county of Nottingham. The sessions on appeal quashed the order, subject to the opinion of this Court on the following case:

The pauper, John Whitehead, was hired at the Bingham statutes, which happened about three weeks before Martinmas, 1818, to serve one Huskisson of East Bridgeford as a servant in husbandry, for the wages of £4, and received 1s. earnest; but no time was mentioned. He was to go into the service about a week after Martinmas, at the regular time for husbandry servants to enter their places. The pauper, who was the only witness examined by the respondents, stated that he entered into the service a week after Martinmas, 1818; that on the same day on which he arrived at his master's house, his master said to him, "It is not the custom to hire servants in this parish for more than 51 weeks, which I forgot to mention to you at the time I hired you at Bingham statutes, and therefore if you have no objection, I must hire you afresh for 5.1 weeks, and give you another shilling for an earnest," when the pauper accepted of such earnest. The pauper was never out of Huskisson's service from the first moment he came upon the premises, and remained therein at East Bridgeford until the day after Martinmas, 1819, when he quitted his place, along with the other servants, having first received his wages of £4. The question for the opinion of this Court is, whether the pauper gained a settlement in East Bridgeford.

Scarlett, G. Marriott, and Humfrey, in support of the order of sessions. This was solely a question of fact for the sessions, and they have drawn the right conclusion. Assuming that the original hiring was a hiring for a year, still there was no service under it to confer a settlement, for the pauper did not enter until a week after Martinmas,

1825.

The KING

v.

The INHABITANTS

of

BOTTESFORD.