and every

main until the next general or quarter sessions of the peace; such offender, who shall be so committed to the house of correction, shall be there kept to hard labour during the period of his or her imprisonment." And, further, it is enacted, "That when any incorrigible rogue shall have been committed to the house of correction, there to remain until the next general or quarter sessions, it shall be lawful for the justices of the peace there assembled to examine into the circumstances of the case, and to order, if they think fit, that such offender be imprisoned in the house of correction, and be there kept to hard labour for any time not exceeding one year, from the time of making such order, and to order further, if they think fit, that such offender (not being a female) be punished by whipping, at such time during his imprisonment, and at such place within their jurisdiction, as, according to the nature of the offence, they in their discretion shall deem expedient" (y).

Powers of Justices, &c. under the Vagrant Act (5 G. IV. c. 83), and Appeal.]-Under this act, justices have power to issue warrants to bring before them persons suspected of vagrancy (z); and to search lodging-houses reasonably suspected of harbouring them, for idle and disorderly persons, or rogues and vagabonds, or incorrigible rogues (a). An appeal lies to the sessions; the previous notice, &c. is stated below (b). Constables may seize goods in possession of a party so charged, search his baggage, and, on the direction of a magistrate, sell his effects, and apply the proceeds towards the expense of conveying the offender, and maintaining him in the house of correction (c). When a party committed as an incorrigible rogue obtains his discharge on notice of appeal, the justices may bind over parties cognizant of the facts, to prosecute and give evidence, and the sessions may allow to such parties costs on the trial of the appeal (d).

Enforcing Punishment where Appellant does not appear at Sessions.] -And now, by 1 & 2 V. c. 38 [passed 27th July, 1838], sect. 1, when any person aggrieved by any act or determination of any justice or justices of the peace out of sessions, in or concerning the execution of the said act [5 G. IV. c. 83], shall have appealed against such act or

(y) Sect. 10.

See Sect. 8.

(z) Sect. 7. (a) Sect. 13. See Money v. Leach, 1 Leach, 208; 3 Burr. 1767. This, from the nature of the evil, remains the

only instance of general warrants.
(b) See R. v. Newcastle-on-Tyne (Jus-
tices), 1 B. & Adol. 933, ante.
(c) Sect. 8.

(d) Sect. 9.

determination, according to the provisions of the said act, and shall thereupon have been discharged out of custody, and such person shall not personally appear and prosecute such appeal at the general or quarter sessions, according to the recognizance entered into on such appeal, it shall be lawful for the justices assembled at such general or quarter sessions, or for any justice of the peace for the county or place in which such person shall have been convicted, (on proof of the said conviction, and on such proof by certificate, under the hand of the clerk of the peace for the said county or place, or of the person acting as his deputy, that the person so convicted did not personally appear to prosecute such appeal,) to issue a warrant for the apprehension and committal of such person, for such period of time as, together with the days during which such person so convicted shall have been imprisoned (if any) previous to being discharged by reason of appeal, shall complete the full term for which such person was adjudged to be imprisoned at the time of his or her said conviction (e).

Under this section a subsequent court of quarter sessions has power to give effect to a judgment pronounced at a previous sessions, by issuing process of execution on a conviction, as there awarded; and the court will compel them to do so by mandamus, unless in cases of delay not properly accounted for (ƒ).

(e) The necessity for such a provision for authorizing a recommittal appears from R. v. Twyford and Grove, 5 Ad. & E. 430; 6 Nev. & Man. 836.

(f) R. v. Warwickshire (Justices), 2 Ad. & E. 768; 1 Harr. & Wol. 18; 4 N. & M. 370, S. C.

CHAPTER IX.

OF GENERAL MATTERS RELATING TO APPEALS.

SECTIONS.

I.-Of the Jurisdiction of the Sessions to entertain Appeals ;-of the Right to
Appeal, and the Parties thereto.

II. Of the Sessions to which Appeals must be preferred.
III.-Of the Steps preliminary to Appealing.
IV.-Of the Trial and Determination of Appeals.

SECTION I.

OF THE JURISDICTION OF THE SESSIONS TO ENTERTAIN APPEALS;OF THE RIGHT TO APPEAL, AND THE PARTIES THERETO.

Appeals.]-We now come to the consideration of appeals; generally one of the most intricate, as well as important, of the subjects submitted to sessions of the peace. The most cursory acquaintance with any book on the office and duties of a Justice of the Peace, must be sufficient to induce a conviction that it would be an unprofitable labour to introduce indiscriminately, under this division, all the subjects on which an appeal lies to the session from the adjudications of individual magistrates. No part of the whole system can exhibit a better proof of this position, than that which embraces the differences between masters and their workmen, in most of our trades, which are respectively regulated by a great number of statutes; many of which are very rarely called into use, but all of which are to be met with in books of the kind alluded to, when occasion may require.

Appeal from Convictions where Penalty Exceeds 51. or the Imprisonment one Calendar Month, or only one Justice acted.]—It may, however, be noticed, that by the acts relating to malicious injuries to property, 7 & 8 G. IV. c. 30, s. 38, and the larceny act, 7 & 8 G. IV.

SS

c. 29, s. 72, modern amendments of the criminal law, a power of appeal is given, when on summary conviction the sum adjudged to be paid exceeds five pounds, or the imprisonment adjudged exceeds one calendar month, or the conviction takes place before one justice. With this exception, it is proposed to confine what is advanced in this place on the subject of appeals, to those which arise out of the most ordinary and fruitful sources of them, first giving some notice to the general law of appeals as regards them abstractedly, and in their general regulation.

Appeal, what.]-Appeal, according to the general use of the word, signifies a complaint to a superior tribunal of the erroneous judgment of an inferior one, and is in the nature of a writ of error(ƒ) brought in order to avoid or quash it. The only application of this remedy with which we have any concern here, is in reference to its use in bringing the orders or convictions of justices acting out of general, or general quarter, sessions, to the review of those tribunals.

Right to Appeal from Acts of Justices done out of General or Quarter Sessions.]—The right of appeal is a qualified right, which cannot arise by implication (g), or exist without express enactment (h); thus reversing the common law remedy by certiorari, which always lies unless expressly taken away by statute (i). Nor can this right be extended, by equitable construction, to cases not distinctly enumerated. Thus 12 Car. II. c. 24, after empowering two justices to hear and determine matters respecting breaches of the excise law, on complaint, and on their neglect, giving similar power to the sub-commissioners, proceeds to allow persons "aggrieved by any judgment of the subcommissioners," to appeal to the sessions; without mentioning any appeal from the judgment of the two justices. It has been accordingly held, that neither under this act, nor any subsequent one which adopts or refers to its provisions respecting appeals, is any appeal given, by equitable construction, from the judgment of the two jus

(f) See per Buller, J., Proser v. Hyde, 1 T. R. 414.

(g) Reg. v. Stock, 8 Ad. & E. 405; 3 N. & P. 420; (on 59 G. III. c. 134, s. 39, stopping up unnecessary paths in churchyards,) R. v. Derbyshire (Jus.), 1 D. P. C. 386; R. v. Bath (Recorder), 1 Per. & Da. 469, 622; 9 Ad. & E. 714, 871.

(h) R. v. Hanson, 4 B. & Ald. 521;

R. v. Oxfordshire (Justices), 1 M. & S. 448; R. v. Cashiobury, 3 D. & R. 35; 1 id. Mag. Cas. 485.

(i) See post, tit. Certiorari. On some statutes, where an appeal is given, and a certiorari is taken away, it may be that a certiorari lies where the appeal is not given, R. v. Yorkshire Justices (W. R.), 5 T. R. 629; R. v. Mitchell, id. 701, cited 3 B. & C. 699.

tices; as the authority conferred by the act cannot be extended by inference (j); nor, on the other hand, can the operation of a general clause conferring an appeal be excluded by mere inference drawn from other clauses in the same act (k).

Where an appeal is given by words implying an option (as may appeal, &c.), the party grieved is confined to that remedy, even if the act complained of is a partial excess of jurisdiction(1); and nothing short of entire absence of jurisdiction over the general subject matter will let in the remedy by action (m).

Distinction between Orders and Convictions as regards Appeals against either.]—It may be fit here to notice the distinction between appeals against the orders of justices, and those against their convictions and judgments. The orders, which have been said to partake most of the nature of convictions, were orders in bastardy (as to which see post, Chap. XV.); orders against a person continuing to keep a public house after an order of justices to suppress it, pursuant to 5 & 6 Ed. VI. c. 25, before its repeal by 9 G. IV. c. 61, s. 35 (n); orders under 11 G. II. c. 19, against tenants fraudulently removing goods to avoid distress (see post, Chap. XII. sect. 2); and orders in disputes between masters and labourers, friendly societies and their individual members.

To these, however, our present purpose requires that several others should be added, e. g. those which respect the settlement, maintenance, and removal of the poor.

(j) R. v. Surrey (Justices), 2 T. R. 504. See 6 East, 514; 12 East, 572; Paley on Conv. 2d ed. 268; and see per Coleridge, J., in R. v. Ipswich (Recorder of), 8 D. P. C. 103 (on 1 V. c. 81, borough rate act).

As to appeal given by one of several statutes in pari materiá, which quoad alia were afterwards consolidated by a subsequent act, see R. v. Liverpool (Mayor), 3 D. & R. 275, and Reg. v. Stock, in last page.

(k) R. v. Salop (Justices), 2 B. & Adol. 145; R. v. Hants (Justices), 1 B. & Adol. 654; R. v. Cumberland (Justices), 1 B. & C. 64.

A private inclosure act declared that no item or charge in the commissioners' accounts should be binding on the parties concerned, or valid in law, unless duly allowed by a justice of peace in

the manner therein pointed out," but did not enact that such allowance should be binding, final, and conclusive; an appeal was given by a subsequent clause

to the party grieved by any thing done in pursuance of that or the general inclosure act (except such determinations as were by either act declared to be binding, final, and conclusive)." Held that the appeal against the allowance by a single justice remained, R. v. Cumberland (Justices), 1 B. & Cr. 64. See 9 B. & Cr. 283; 1 B. & Ald. 644.

(l) Bonnell v. Beighton, 5 T. R. 182; Durrant v. Boys, 6 id. 580.

(m) Same cases. This principle is recognized in Cortis v. Kent Waterworks, 7 B. & Cr. 314; Fawcett v. Fowlis, id. 394; Marshall v. Pitman, 9 Bing. 599. See post, Chap. X. sect. 1. (n) See 2 Ld. Raym. 1405.