provisions respecting appeals, is any appeal given, by equitable construction, from the judgment of the two justices; as the authority conferred by the act cannot be extended by inference (ƒ); 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 (g).

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 (h); and nothing short of entire absence of jurisdiction over the general subject matter will let in the remedy by action (i).

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 (k); 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.

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

(g) 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 ap

peal 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.

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

(i) 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. (k) See 2 Ld. Raym. 1405.

In inferior courts (1) and judicial or even ministerial (m) proceedings by magistrates, the maxim, "omnia præsumuntur rite esse acta," does not apply accordingly (n) their authority to make an order, or to convict, must be expressly set forth on the face of such order, &c.; for it cannot be supplied by implication (n). Thus an express enactment was requisite to save acts, orders, warrants, &c. made by two or more justices from being set aside for not expressing one of them to be of the quorum (o).

We will here notice the distinction between orders and convictions for the purpose of observing, that when once the essential point of jurisdiction in justices is established by its appearing on the face of their order (p), it receives a favourable intendment (q), and does not require the same literal strictness as a conviction or indictment (r). Thus in the case of an order, it will be presumed that the defendant was summoned, if the contrary does not appear (s); whereas in that of a conviction the summons must appear on the face of the record (1), unless the defendant's appearance renders it immaterial (u). An order has been holden good in the case of fraudulently removing goods to avoid a distress, when the offence was expressed in the alternative," removed or concealed goods," &c. (x), whereas the same allegation in a conviction would be fatal to it (y); for, as was said by Lord Mansfield in one

(1) e. g. sheriff's courts for inquisitions under railway acts, see Taylor v. Clemson, 2 Q. B. R. 1003, 978; R. v. Norwich and Watton Road (Trustees), 5 Ad. & E. 563.

(m) See per Cur, 2 Q. B. 1025, as to R. v. All Saints, Southampton, 7 B. & Cr. 785, where the proceeding was taking a soldier's examination.

(n) R. v. All Saints, Southampton, see R. v. Cleg, Stra. 476; R. v. Long, 1 M. & Ryl. 139; R. v. Hulcot, 6 T. R. 583, cited per Cur, 4 Ad. & E. 721.

If the jurisdiction in point of locality does not appear in a first order (e. g., of special sessions being held in the proper division), the defect will not be cured by a recital in a subsequent order of quarter sessions made on appeal, that the special sessions were held in the proper division, though in fact they were so held, Reg. v. Martin and another, 13 L. J. (M. C.) 35; 2 Q. B. 1037, note. Anon. Salk. 473; Walton v. Chesterfield, 5 Mod. 322. So of orders made by commissioners of bankruptcy, under

special statutory powers, Marsh v. Woolley, 12 L. J. (C. P.) 247. The court will not infer or add any thing to a magistrate's order in order to give him jurisdiction, Reg. v. Read, 9 Ad. & E. 619; Reg. v. Hants (Justices), post, tit. Bastardy.

(0) 26 G. II. c. 27. See Stra. 100; Salk. 473; Burr. S. C. 150.

(p) See per Cur, 4 Ad. & E. 721. (9) See per Cur. R. v. Downshire (Marquis), 4 Ad. & E. 721; R. v. Morris, 4 T. R. 550, 552.

(r) R. v. Morgan, Cald. C. 156; 1 Burr. R. 399; post, Chap. XII. sect. 2. (s) R. v. Oxfordshire (Justices), 1 M. & S. 448.

(t) R. v. Venables, 2 Ld. Raym. 1405; R. v. Hawker, Cald Ca. 391. (u) See per Cur, 4 Ad. & E. 721. (x) R. v. Middlehurst, 1 Burr. 399; Hall v. Biggs, 2 Salk. 674 ; see however R. v. North, 6 D. & R. 143.

(y) R. v. Sadler, 2 Chit. R. 519; R. v. North, 6 D. & R. 143. See Cowp. 682; 1 Ld. Raym. 171; 3 T. R. 159;

case (a), 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. Again, the result of the evidence is all which need be stated in an order, whereas the evidence itself must be stated in a conviction (b).

But there is no distinction between a conviction and an order with respect to the necessity of showing jurisdiction on the face of them: for it is equal in both (c).

The appeals against particular descriptions of orders and convictions will be further considered hereafter. We now proceed to other matters respecting appeals in the abstract, before discussing the individual enactments under which they may be made. On this view of the subject, three considerations offer themselves, viz. the right of appeal itself, the session to which it is to be preferred, and the steps to be taken preliminary to entering it for hearing.

Parties to an Appeal-Appellants-Parties grieved.]—The parties to be made appellants are sometimes specifically pointed out by the act which gives the appeal, and sometimes left at large under the general terms, " parties aggrieved." Before considering the persons who have in various cases been held to fall within the latter words, it must be remarked, that parties may jointly appeal against a poor-rate, whether they rely on the same, or separate grounds of appeal (d). Again, where a local act gave an appeal against any rate or assessment, it was held that a party might, in one appeal, question several rates; though if the session should think that injustice would be done by hearing the appeal against the several rates jointly, they were at liberty, though not bound, to determine them separately (e).

Appeal by "Party Grieved," and Notice thereof.]-If the condition of appealing imposed by a statute be, that the appellant is, or thinks himself, injured or aggrieved, the grievance must be immediate to the

Dougl. 278; Pain, ex parte, 5 B. & Cr. 251, S. C.; R. v. Pain, 7 D. & R. 678. (a) R. v. Middlehurst, 1 Burr. R. 399; see 3 Esp. 16; 3 Tyr. 170.

(b) R. v. Cheshire (Justices), 5 B. & Ad. 439; 2 N. & M. 827, S. C. And see form of conviction given by 3 G. IV. c. 23.

(c) See per Williams, J., in Day v. King, 5 Ad. & E. 359; and again in Brook v. Jenney, 2 Q. B. 273.

(d) R. v. Sussex (Justices), 15 East, 206; R. v. White et al. 4 T. R. 771. So their notice of appeal may be joint.

(e) R. v. Suffolk (Justices), B. &

Ald. 640.

appellant, and not consequential only, or of a kind not recognized by the law (f). The privilege of appeal is not conferred on strangers, or on every captious person capable of pointing out errors, but on those who have sustained a special and peculiar injury (g). The grievance must, in all cases, be stated on the face of the notice of appeal, either in express terms, or as of necessity resulting from such facts, or from so much of the order, conviction, &c. appealed against as is disclosed in the notice (h); for a notice which in no way states such an appellant to be aggrieved (i) is bad on that account. A pauper may himself appeal against the order for his removal as "aggrieved" by it (k). Under the old highway act (13 G. III. c. 78, now repealed), any inhabitant might appeal against a bad appointment of a surveyor of the highways, for every inhabitant must be deemed to be aggrieved by it (). But if "parish officers" are empowered to appeal, when they find that the parish is aggrieved, no appeal can be instituted by less than a majority; for they are to exercise a judgment before bringing it (m); and in the exercise of a public or general power a majority is to act for the whole. The "grievance" to a party convicted by justices, is their judgment, and not the execution of it (n).

Parties to an Appeal-Respondents.]—The parties to whom the statute directs notice of appeal to be given, are the proper respondents; and if those parties are not mentioned, then it seems that the party at

(f) See R. v. Middlesex (Justices), 3 B. & Adol. 938. Appeal against the grant of a public house license to a house within a few yards of appellant's licensed public house. Held, that the sessions were not bound to hear the appeal. The refusal of the license to the appellant himself would be different. But if trustees are enabled by a local act to sue or to be sued in the name of one of them, he may appeal under the words "party grieved," though not personally aggrieved; and notice of appeal and recognizance may be by him only, R. v. Surrey (Justices), 5 Ad. & Ell. 701, n.

(g) See the language of the court in R. v. Essex (Justices), 5 B. & Cr. 433. (Reconsidered and upheld in R. v. Yorkshire, W. R. (Justices), 7 B. & Cr. 678. R. v. Somersetshire (Justices), 7 B. & Cr. 681, n.; R. v. Blackawton (Inh.), 10 B. & Cr. 792.) See also R. v. Bond, 6 Ad. & E. 908-910; R. v. Ady, 4 N. &

M. 365; 1 H. & Wol. 42, S. C.

(h) R. v. Blackawton (Inh.), 10 B. & Cr. 792, 798; R. v. Yorkshire (Justices), in re Bower. 4 B. & Adol. 685.

(i) R. v. Essex (Justices), 5 B. & Cr. 431; R. v. Yorkshire W. R. (Justices), 7 B. & Cr. 678.

(k) R. v. Hartfield, Carthew, 222; Comb. 478, S. C.; Weston Rivers v. St. Peters, 2 Salk. 492; and per Littledale, J., Reg. v. Colbeck and others, 12 Ad. & E. 161, 166, but he is not such a party to the appeal as to make his admission evidence, S. C. see post, Chap. XI. sect. 2.

(1) R. v. St. Alban's (Justices), 3 B. & Cr. 698; but see now 5 & 6 W. IV. c. 50, s. 6.

(m) Post, p. 622. R. v. Lancashire (Justices), 5 B. & Ald. 755; appeal by overseers on 18 G. III. c. 19, s. 4, against allowing a constable's accounts. (n) Per Buller, J., Proser v. Hyde, 1 T. R. 417.

whose instance, and for whose interest, the magistrate was called on to act, and in fact acted, as well as the magistrate or magistrates themselves, should be made respondents. But if the magistrate or magistrates acted without the prompting of any interested party, they should be made respondents (o). An inclosure act allowed an appeal on giving the commissioner, and the parties concerned, ten days' notice in writing. It was held that these words meant parties directly interested in the soil, including among others the lady of the manor; and that for want of giving her notice of the appeal, it could not be heard at sessions, or respited in order to a hearing there (p): so that it seems she should have been one of the respondents.

Where a public general act gave a remedy by appeal to sessions, without limitation as to time of appealing, this power was held to override a clause of appeal in a previous local act, by which a time was limited after which no such appeal could be made (q).

The question of what sessions the appeal must be preferred to, is discussed in the next section.

SECTION II.

OF THE SESSIONS TO WHICH AN APPEAL MUST BE PREFERRED.

To what Kind of Session.]-An appeal is not usually given by a statute to the next general sessions, if there be such holden distinct from the quarter sessions; but to the next quarter (or general quarter) sessions, as distinguished from other general sessions, and from special sessions (r).

To what Session in respect of Place.]-The appeal must be to the sessions of the jurisdiction in which the order or the conviction is

(0) See R. v. Hants (Justices), 1 B. & Adol. 654; post, tit. Convictions (Parties to Appeal). If two or more magistrates act together by a joint authority, notice to one will not suffice, Reg. v. Cheshire (Justices), 11 Ad. & E. 139, S. C. 3 P. & D. 23 n. (Hil. 1840), (overruling R. v. Staffordshire (Justices), 4. Ad. & E. 844; R. v. Sillifant, id. 354.)

(p) R. v. Lancashire (Justices), 1 B. & Ald. 630.

(q) R. v. Bucks (Justices), 7 B. & Cr.

3, appeal against a county rate on 55 G. III. c. 51, s. 14. The local act was 54 G. III. C. 103.

(r) R. v. London (Justices), 15 East, 632; Reg. v. Middlesex (Justices), 12 L. J. (M. C.), 134, S. P. Where, in a borough being a county of itself, the only sessions (before 5 & 6 W. IV. c. 96) were general sessions held twice a year, it was held that appeals against orders of removal must be tried at the next of those general sessions, R. v. Carmarthen (Justices), 4 B. & Ald. 291.