IV. c. 83, s. 5, to be deemed "incorrigible rogues" under the act: 1 Every person breaking or escaping out of any place of legal confinement, before the expiration of the term for which he or she shall have been committed, or ordered to be confined by virtue of this act. 2. Every person committing any offence against this act, which shall subject him or her to be dealt with as a rogue and vagabond, such person having been at some former time adjudged so to be, and duly convicted thereof (z). 3. And every person apprehended as a rogue and vagabond, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended. As to these it is enacted, "That it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witnesses) to the house of correction (a), there to remain until the next general or quarter sessions of the peace; and every 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" (b). (z) A question was raised under this act, whether persons once convicted under the previous vagrant acts as rogues and vagabonds were under these words to be deemed incorrigible rogues for a second offence of a like nature. Upon this Lord Lyndhurst, when attorney general, gave an opinion, inserted in (a) See note (h) in p. 606. 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 (c); and to search lodging-houses reasonably suspected of harbouring them, for idle and disorderly persons, or rogues and vagabonds, or incorrigible rogues (d). An appeal lies to the sessions; the previous notice is sufficient if it state as a ground of appeal, that the appellant" was not guilty of the said offence" (e). 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 (ƒ). 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 (g). Enforcing Punishment where Appellant does not appear at Sessions.] -And now, by 1 & 2 V. c. 38, s. 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 vagrant act, 5 G. IV., shall have appealed against such act or determination, according to its provisions, 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 (c) Sect. 7. See Sect. 8. (d) 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. (e) See R. v. Newcastle-on-Tyne (Justices), 1 B. & Adol. 933. (f) Sect. 8. (g) Sect. 9. adjudged to be imprisoned at the time of his or her said convic tion (h). 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 (i). (h) The necessity for this provision in order to authorize a recommittal appears from the previous case of R. v. Twyford and Grove, 5 Ad. & E. 430; 6 Nev. & Man. 836. (i) R. v. Warwickshire (Justices), 2 Ad. & E. 768; 1 Harr. & Wol. 18; 4 N. & M. 370, 8. 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, p. 613. II.-Of the Sessions to which Appeals must be preferred, p. 619. IV. Of the Trial and Determination of Appeals, p. 638. 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 show that it would be a profitless labour to introduce indiscriminately, all the subjects on which an appeal lies to the sessions from the adjudications of individual magistrates. A good proof of this position is that part of the system which embraces the differences between masters and their workmen, in most of our trades; these are respectively regulated by a great number of acts; many of which are very rarely called into use, but all are to be met with in books of the kind alluded to, when required. 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. c. 29, s. 72, 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 (a). 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 (b) 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 (c), or exist without express enactment (d); whereas the common law remedy by certiorari, always lies unless expressly taken away by statute (e). 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 sub-commissioners," 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 (a) By 2 & 3 Vict. c. 71, s. 14, any one police magistrate in the metropolitan district may do alone at any police court any act which by law is directed to be done by more than one justice. (b) See per Buller, J., Proser v. Hyde, 1 T. R. 414. (c) 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. As to appeal given by one of several statutes in pari materiâ, which, quoad alia, were afterwards consolidated by a subsequent act, see R. v. Liverpool (Mayor), 3 D. & R. 275, and Reg. v. Stock. (d) 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. (e) 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. |