1. Orders of bastardy, under 18 Eliz. c. 3. 2. Against persons continuing to keep a public house, after an order of justices to suppress it, under 5 and 6 Edw. 6. 3. Against tenants fraudulently removing goods to avoid distress, under 11 Geo. 2. c. 28. To these, however, for our present purpose, must be added several others; as, for example, those which respect the settlements, maintenance, and removal of the poor. The reason for noticing any distinction here between orders and convictions, is for the purpose of observing, that less formality is deemed necessary to be preserved respecting the former, than respecting the latter. (c) In the case of an order (ex. gr.), it is not always necessary that it should appear on the face of record that the defendant was summoned, (d) which is absolutely necessary in the case of a conviction, (e) except when his appearance renders it immaterial. So an order has been holden good, in the case of removing goods to avoid distress, under 11 Geo. 2. when the offence was expressed in the alternative," removed, or concealed, goods, &c. ;" for, as was said by Lord Mansfield in one case, (f) though in indictments and convictions the Court is bound by a long succession of cases to require certainty to the greatest degree of technical precision, in orders more latitude is allowed; and if the record be substantially right, the Court will intend that all the necessary formalities have been observed. As the appeals against particular descriptions of orders will be further considered hereafter, as well as against particular descriptions of convictions, sufficient notice has already been taken of the general differences. between them, so far as regards appeals from them respectively; and we must proceed to other matters respecting appeals in the abstract, preliminary to any discussion of the individual questions, on which they may be made. On this view of the subject, three considerations offer themselves: viz. the right of appeal itself; the steps to be taken in exercising it; and the session to which it is to be preferred. Appeal from the proceedings of justices out of session, The right of The King v. Morgan, Cald. C. 156; 1 Burr. R. 399. (d) The King v. the Justices of Oxfordshire, 1 M. and S. 448. The King v. Venables, 2 Ld. Raym. 1405; the King v. Hawker, Cald. Ca. 391. (f) The King v. Middlehurst, I Burr. R. 399. appeal. Preliminary measures to appealing. to the court of session, is not a matter of common right, but of special provision. (g) And it must be given by express enactment, and cannot be extended by an equítable construction to cases not distinctly enumerated. Thus, on the subject of the excise laws, the 12 Car. 2. c. 24. after empowering two justices to hear and determine matters on complaint, and, on their neglect, gives similar power to the sub-commissioners, and then proceeds to allow persons aggrieved by any judgment of the sub-commissioners to appeal to the sessions, but makes no mention of any appeal from the judgment of the two justices. Hence it has been determined that, neither under this act, nor any subsequent one which adopts or bears reference to its provisions respecting appeals, is any appeal given by equitable construction from the judgment of the two justices; for an appeal is only given by express words, from that of two sub-commissioners, and the authority cannot be extended by inference. (h) But, on the other hand, the operation of a general clause of appeal in the statute cannot be excluded by mere inference drawn from other clauses. (i) § 2. OF THE STEPS PRELIMINARY TO APPEALING. 48. The right of appeal being only derived from the express provisions of some statute, may be, and generally is, granted on certain conditions; as of notice to the magistrate making the order or conviction, or to the parties at whose requisition it is made; and recognizance to prosecute the appeal. Express notice is not, however, necessary, unless required by the statute, where a recognizance is directed. Thus, it has been holden that the statute 50 Geo. 3. c. providing that any party aggrieved by a conviction, who shall enter into a certain recognizance to appear at the next session, shall be at liberty to appeal, dispenses with the necessity of any other notice, and if the party enter into the recognizance, the sessions are bound to hear his appeal. (j) And where an act requires notice of appeal to be given, without expressing that the notice must be in writing, a parol notice will suffice; (k) and this though the statute require "reasonable notice;" for the (g) Per Ld. Ellenborough, in the King v. the Justices of Oxfordshire, 1 M. and S. 448. (h) The King v. the Justices of Surrey, 2 T. R. 504. The King v. the Justices of Salop, 4 B and A. 626. word "reasonable" will be held to refer to the time of the notice, and not to the manner, so as to enable the Court to construe it as requiring a notice in writing. (1) It is, however, more convenient in all cases to give notice in writing, as being more specific and better capable of proof; and, of course, where it is required by statute, it must be given. By many statutes it is made a part of a magistrate's How dispensed duty to acquaint the party whom he convicts of his right with. of appealing, and also to inform him of the necessary steps to be taken. In convicting on such statutes, if the justice neglect this duty, as, if the statute requires both a recognizance and notice, and the justice informs the party convicted of his right to appeal, and receives his recognizance, but is silent as to the notice, the appellant is discharged from the obligation of giving notice, and the session is bound to receive his appeal. (m) On a motion for a mandamus, to enter an appeal and continuances, &c. upon a conviction for an offence against 17 Geo. 3. c. 56. the 20th section of which stat. requires that "the magistrates at the time of conviction shall make known to the offender his right of appealing to the next session," the affidavit of the appellant Mawson (on which the motion was founded) stated that the convicting magistrates did not make known to him at the time of his conviction such right of appeal, and that he was not informed of such right till some time afterwards, and that he then gave notice in writing of his intention to appeal, and procured sufficient sureties for trying such appeal: but there not being any meeting of the said justices, or of any two justices, before the holding of the next General Quarter Session, he with his sureties attended at such session, and entered his appeal with the clerk of the peace; which appeal the justices in session refused to entertain, on the ground that he had not given notice of his intention to appeal at the time of his conviction, nor entered into recognizance, &c. The mandamus was granted, on the ground that the affidavits filed by the justices in answer were dated and sworn before a commissioner of the Court of King's Bench, but contained no place in the jurat, where sworn, and the Court were of opinion that the place where the affidavit is taken ought always to be stated, as one medium through which (1) The King v. the Justices of Surrey, 5 B. and A. 539. (m) The King v. the Justices of Leeds, 4 T. R. 583. To what kind of session. To what session urisdiction. it may be ascertained whether the person taking it is a commissioner, and for other causes. The justices made their return, "that they caused the appeal to be entered, &c. and that upon the hearing it was proved that the two justices did make known to Mawson ut the time of his conviction his right to appeal, &c. and that he failed to prove any notice of his intention to appeal; but, on the contrary, that, at the time when the justices so made known to him his right to appeal, he waived his intention of so doing, by actually replying that he thought he had better pay the penalty,' and that he did not then, or at any time before the calling on the appeal, enter into a recognizance," &c. It was contended in answer to this return, that Mawson's reply was not a waiver of his right to appeal, nor did it dispense with the duty of the justices to proceed further, and inform him also of all the necessary steps to be taken in prosecuting such right of appeal. But Lord Ellenborough, C. J. said, “All the statute positively requires is, that the justices shall make known to the person convicted his right of appeal; they did so; and if he had thereupon signified his intention to appeal non liquet that they would not also have proceeded to inform him of the further steps to be taken by him. why should they do so nugatory an act, as to inform him what he must do to appeal and enforce his right, when he had declined to appeal altogether, and had waived his right?" (n) But $3. OF THE SESSIONS TO WHICH AN APPEAL MUST BE PREFERED. The appeal given by the usual words of an act is not to the next general sessions, if there be such sessions holden distinct from the quarter sessions, but to the next quarter sessions. (o) The other circumstances to be considered, relate to the place in point of local jurisdiction, and to the sessions in point of time. 1st, as to place. The appeal must be to the session of in point of local the jurisdiction in which the order or conviction is made, unless otherwise specially provided; from the judgments of corporate magistrates to the sessions for the borough; and from the judgments of county magistrates to the sessions for the county. (p) But there is an exception in (n) The King v. the Justices of the West Riding of York, 3 M. and S. 493. (0) The King v. the Justices of London, 15 East, R. 632. case of orders for removal of the poor; in order that appeal may never be ab eodem ad eundem, (q) it is provided 8 and 9 Will. 3. c. 30. " that the appeal against any order of removal shall be prosecuted at the general or quarter sessions for the county, division, or riding, wherein the parish, township, or place, from whence such poor person shall be removed, doth lie, and not elsewhere." time. 2d. As to time.-The period within which an appeal must Within what be preferred is generally pointed out also by the statute; if there be no such appointment, the construction of the courts is, that it must be within a reasonable time; (r) but where there is such, it is most commonly to the next session. This expression, next session, has been the sub- Next session, ject of much controversy, as well with respect to the what with terminus à quo, as the terminus ad quem. When a statute respect to the gives an appeal from a conviction to the next quarter sessions, it is construed to mean next after the conviction, and not the next after the execution or levying of the penalty. (s) By 13 Geo. 3. c. 78. s. 19. an appeal is given against orders of justices for stopping up roads "to the parties aggrieved by any such orders or proceedings had," &c. and the question was the precise period from which the grievance was to be estimated, and whether the terminus à quo for an appeal was to be reckoned from the time of the order, or from the time of the actual stoppage in consequence of that order. The Court of King's Bench held that an appeal to the session after the actual obstruction of the road was too late, the parties aggrieved having had notice of the order in sufficient time to have appealed to a previous session. (t) In a private enclosure act, power was given to the commissioners to set out land in a certain proportion in case of tithes to the vicar, with the following clause of appeal:"and if any persons shall think themselves aggrieved by any thing done in pursuance of this act, they may appeal to any general quarter session of the peace for the county, &c. within six calendar months after such cause of complaint shall have arisen." The commissioners made an allotment upon the map, which the vicar inspected in November, 1812, and appointed an agent who attended a subsequent meeting, when an alteration was made which Burr. S. C. 592. The King v. the Justices of Oxfordshire, 1 M. and S. 448. (s) Prosser v. Hyde, 1 T. R. 414. The King v. the Justices of Pembrokeshire, 2 East, R. 213. terminus à quo. |