recognizance and notice of appeal, the court cannot enter and hear it at the instance of respondent, nor can it give costs, so that the respondent's only remedy for them is by estreating the recogni order to examine the justice of a sentence that was not in any degree produced by it. The management of the poor of a certain town was vested, by a local act, in persons constituted a corporation for the purpose, who were empowered to make rates; and an appeal was given to parties aggrieved, to the town sessions in the first place, with a further appeal to the county sessions, if required. Notice of appeal against four rates was given for a town sessions in January, 1818, stating four grounds of appeal. The rates were confirmed at those town sessions. A further appeal was carried to the next county session, and two new grounds of appeal added in the notice. The county session refused to hear the case, and a mandamus was moved for. The following is a passage from the judgment of the court, as delivered by Bayley, J. :-" The party here has inserted, in his second notice, two fresh grounds of appeal. The impression on my mind is, that he must, at the county session, be confined to the same grounds of objection to the rate, as he took at the borough session; for the county session is in the nature of a court of review, and it is their duty only to examine if the rate can be supported on the grounds decided upon by the court below. If that were not so, it would be competent to the party at the borough session to state any illusory grounds of appeal, and put forth his whole strength by surprise at the county session;" R. v. Suffolk (Justices), 1 B. & Ald. R. 645. [But Holroyd, J., adds, "The county sessions are to retry the same matters which were triable at the borough sessions. In all cases of new trial or error, the court of appeal looks only at the original proceedings. There may, however, be fresh evidence adduced. The notice of appeal is in the nature of a declaration, and must be the same on both occasions. Then the appeal to the county sessions must here be confined to the original matter of complaint only." This case, therefore, as far as an appeal against an order of justices is concerned, is only an authority against ad ducing fresh grounds before the court of second resort, and not against adducing fresh evidence there upon the grounds formerly taken.] See ante, p. 43. It was, indeed, determined, that the commissioners of appeal in matters of excise are bound to hear other witnesses than those sworn on hearing the original complaint, which led to the conviction by the excise commissioners below; and it was admitted in the same case, that the like rule prevails where appeals of a like kind are heard at quarter sessions, R. v. Commissioners of Appeals in matters of Excise, 3 M. & S. 133. The malt act, 48 G. III. c. 74, s. 15, enacts, expressly, that the same witnesses, and no other, who were examined at the original hearing, shall be re-examined on the appeal under that act; and the same provision is now made as to the hearing of such appeals at quarter sessions from convictions in penalties under the excise laws, 7 & 8 G. IV. c. 53, s. 84. [Further, in Paley on Convictions, 3rd ed. 267, is this passage :-"It seems an universally admitted rule, that, in every case of appeal to the sessions, both parties are at liberty to examine all competent witnesses on their behalf, without regarding whether they have been examined before or not." And see S. P. in Burn's Justice, tit. Appeal, p. 158, 28th ed.; 1 M. & Gr. 599, 601, Baylis v. Strickland, also 8 East, 113; 7 B. & C. 534; 1 M. & G. 264. The case of R. v. Commissioners, &c. above cited, contains the main arguments on the subject. The question seems to be, whether, on appeals from convictions, the court of quarter sessions is a court of appeal against errors in law only, so as to be confined to matters appearing on the face of the convictions, or at utmost on the evidence given in support of them below;-or, whether, on appeals from convictions, the quarter sessions is a court of appeal from errors in law only, viz. errors appearing on the face of the conviction, to be ascertained by a repetition of the evidence adduced below; or whether it is also a court for considering errors in fact, dehors the con zances (x). After the evidence in support of the conviction is gone through, the appellant enters upon his case, and shows, if he can, the insufficiency of the evidence to bring him within the description or penalties of the statute. The course of proceeding in appeals has been already considered; and all the usual rules apply to appeals against convictions (y). Judgments on Appeals against Convictions, and awarding Costs.] Whatever judgment the justices give, must be the act of the court itself, and not by any delegation of its authority (z). Even the few instances which may be produced as exceptions to this rule will, on examination, be found not to operate as such, but in effect to confirm it. Thus, where the justices in session appointed a committee from their own body to institute an inquiry, and make an examination, relative to the propriety of repairing or rebuilding a bridge which had become a nuisance, the court of king's bench were of opinion, that they were right in so doing, in order to receive their report and information relative to facts; for after all, the judgment was the judg viction itself, thus affording a new trial of the facts and merits, by the oaths, as well of persons examined at the former hearing as of other witnesses not before called, and now first tendered for the appellant or in support of the conviction. In the case just cited, the court, after taking time to consider, ordered a special court of appeal to admit fresh evidence tendered to them on behalf of an appellant. Their judgment turned not only on the acts then sub judice, but also on the reason of the thing, which seems equally applicable to the court of quarter sessions. It concludes thus, "Indeed, upon the reason of the thing, evidence, if it be heard again from the mouths of the same witnesses (which was admitted to be essential), cannot be precisely the same; differences must arise from a varied recollection of the witnesses; and unless the minutes themselves are to be the sole evidence, there can be no security for the identity of testimony." The "minutes" here spoken of, were the depositions taken in writing at the first hearing, which (according to Breedon v. Gill, Ld. Raym. 219; 2 Salk. 555; 5 Mod. 271) could not be evidence; for such witnesses, if called again on the hearing of the appeal, must be re-sworn.] On the other hand (adds Mr. Dickenson), it has been sometimes made a ques tion, whether the quarter session, on an appeal, may be satisfied with less evidence than was sufficient for the support of the conviction: e. g. when a statute directs that a justice shall have authority to convict an offender on the evidence of two credible witnesses, whether one of the two may be sufficient to support the conviction on appeal? The compiler is not aware that there has been any determination on this specific question in the superior courts; but it appears a necessary inference, that if two are necessary to produce a conviction, the same number must be requisite to confirm it; and in conformity with this conclusion has been the practice of the Middlesex sessions. [The rule of the house of lords is, that nothing can be attended to which was not before the court below; per Earl of Eldon in an appeal from the Rolls, Mac Dougalv.Purrier, 3 Dec. 1830, Tyrwhitt's Report, 33, printed by the city of London.] (x) Reg. v. Bolton (Recorder), 14 L. J. (M. C.) 33. Semb. the convicting justices may, after appeal thus abandoned, commit defendant to gaol to undergo his punishment, S. C. (y) Ante, p. 12, 13. (2) Ante, p. 644; 16 Vin. 415; R. v. Turner et al. MS. Cas. Pasch. 9 A. B. R. ment of the session; however such session might adopt the opinion of the individual justices who had made their report (a). As to their award of costs after consulting the clerk of the peace, see ante p. 645. Second Appeal after first dismissed for Informality.]—Enough has been said respecting an appeal proceeding on the merits, in the regular course, to judgment. But an appeal may also be dismissed for informality, e. g. for not giving the notice or entering into the recognizance which are made the conditions of the appeal by the act which gives it; and as such dismissal is conclusive, the conviction will be confirmed, and no second appeal can be lodged against it, though within the six months next after it (b). In the case of appeals limited to the next session, if the appellant rely on an objection of form, and independent of the merits, procures the conviction to be quashed on that ground, he cannot (even though the court above should have set aside the order of session, and set up the conviction again) go to the sessions again, and have the question heard there upon the merits (c). Power of Adjourning Appeals regularly entered.]—But an appeal may be adjourned by the court for future hearing, by adjourning the sessions to a day not later than that on which the next quarter sessions, original or adjourned (d), is held. This power of adjournment being incident to the court for attaining the ends of justice, is not superseded by words in a statute, giving an appeal to the sessions within four months after the cause of complaint shall arise, and directing that "the justices of the said session shall determine the matter" (e). Unavoidable surprise of any kind upon the party as to part of the subject appealed against, the absconding of the pauper, the absence of witnesses, necessity for inquiry suggested either by the counsel for the parties, or for the information of the court, may all be sufficient reasons for adjournment; and it is to be understood that an adjournment ex vi termini implies that every thing during the time of such adjournment remains in statu quo ; viz. that no advantage or disadvantage to the parties, as to notices, or other matters generally affected by efflux of time, is worked by such postponement of hearing. But as, where the sessions is adjourned, the style of it must not run "at such session held by adjournment," the original meeting of the (a) R. v. Glamorganshire (Justices), 5 T. R. 279. (b) R. v. West Riding Yorkshire (Justices), 3 T. R. 776. (c) R. v. Allen, 15 East, 346, ante. (d) See ante, Chap. IX. sect. 4, form of entry of adjournment. (e) R. v. Wiltshire (Justices), 13 East, 352. session ought to be set forth, and that it was "continued by them from thence to such further time by adjournment;" and that it was then holden accordingly by such adjournment (ƒ). The record of proceedings had at it must follow the same course. But the power of adjournment can only be exercised on appeals brought regularly before them, by every previous condition having been complied with. Thus, if for want of any notice, or other preliminary step, made a condition by the statute, the appeal could not be entered, the court cannot by adjourning acquire a jurisdiction to try it at a future time; for the right of appeal is gone for ever (g). Defects of Form cured.]-By 3 G. IV. c. 23, s. 3, in all cases where it appears by the conviction, that the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed against the said conviction, where an appeal is allowed; or, if, on appeal against it, the conviction has been affirmed, such conviction shall not be afterwards set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal one as will be agreeable to the justice of the case. But every material fact must be alleged, and the omission, if any, is not aided by reference to such clause (h). The rule of law is established, that if there be a conviction good on the face of it, the justice is protected from an action for false imprisonment; whereas if the conviction is bad on the face of it, that is, if it shows a want of jurisdiction, or directs such an imprisonment of a party as the justice cannot by law award, he is not protected (¿). Ultimate remedy on Conviction affirmed in Queen's Bench after case argued.]-Two justices by a conviction sentenced defendant to pay a penalty of 201. or be imprisoned for one month. The conviction was quashed on appeal, subject to a case, and on being removed by certiorari, was confirmed in queen's bench; a levari facias issued; return nulla bona. The queen's bench doubted its authority to enforce the judgment of imprisonment in default of payment, and granted a procedendo to carry back the record of the conviction to sessions, commanding them to proceed to award execution against the defendant (k). (f) See the cases cited ante, pp. 74, 75, notis; also R. v. Harrowby, Burr. S. C. 102. (g) R. v. Oxfordshire (Justices), 1 M. & S. 448. See R. v. Lincolnshire (Justices), 3 B. & Cr. 548. (h) R. v. Jukes, 8 T. R. 536; Paley, 3rd ed. 171. (i) Per Parke B., in Griffith v. Harries, M. & W. 344, citing Groome v. Forrester, 5 M. & S. 314; Robson v. Spearman, 3 B. & Ald. 493. (k) Reg. v. Rushworth, 1 New Sess. C. 415. SECTION IV. PRECEDENTS OF CONVICTIONS IN PARTICULAR CASES. ASSAULTS. Conviction on 9 G. IV. c. 31, s. 27, for a Common Assault (l). liberty, city," &c. as the case may be] A. O. is convicted before us [naming the justices] two of her majesty's justices of the peace for the said county [or, riding, &c.] for that he the said A. O. did [specify the offence, and the time and place when and where the same was committed, as the case may be]; and we the said justices do according to and under and by virtue of the said statute adjudge the said C. D. for the said offence to forfeit and pay the sum of £—, and also to pay the sum of 12s. 6d. for costs, and in default of immediate payment of the said sums, to be imprisoned in the common gaol in and for the said county of for the space of unless the said fine and costs should sooner be paid, and we do also adjudge the said A. O. for the said offence to be imprisoned in the there kept to hard labour for the space of of and [or, we adjudge the said A. O. for his said offence to forfeit and pay the sum of] [here state the amount of the fine imposed] and also to pay the sum of for costs; and in default of immediate for the space of payment of the said sums to be imprisoned in the unless the said sums shall be sooner paid [or, and we order that the said sums shall be paid by the said A. O. on or before the the said sum of £ day of -]; and we direct [i. e. the amount of the fine] shall be paid to of aforesaid, in which the said offence was committed, to be by him applied according to the directions of the statute in that case made and provided, and we order that the said sum of for costs shall be paid to C. D. [the party aggrieved]. Given under our hands and seals, the day and year first abovementioned. ALEHOUSES UNDER 9 GEO. IV. c. 61 (m). Conviction of a Party for selling an Exciseable Liquor, not being Licensed, under 9 G. IV. c. 61, s. 18. |