SECTION IV.

OF THE ENTRY, CALLING ON, RESPITING Or Adjourning, HearING, AND DETERMINATION OF APPEALS AT THE QUARTER

SESSIONS.

THE names of the parties to each appeal should be furnished by the appellants to the clerk of the peace, who should enter on a separate paper the names of each (x) appeal in the order in which he receives them. The justices at adjourned quarter sessions were held right in refusing to receive an appeal the entry of which had been refused at the original session, for want of the notice of appeal and recognizance required by an act which gave an appeal to the "next general quarter sessions," but directed that no such appeal should be "brought, received, or heard," unless such notice or recognizance should be given, &c. (y). The time within which an appeal must be entered at the sessions, is fixed by the practice of each sessions; but if it be entered in time a motion to respite it may be made at a later period of the sessions.

The appeals are usually called on for hearing in the order in which they stand in the paper of the clerk of the peace. This is, however, subject to any other arrangement which may be made by the court; who may exercise their discretion in taking them in any order which public convenience or particular circumstances, as in the case of many persons attending from a great distance, or of the necessary attendance of jurors, in appeals under some statutes, may appear to them to make convenient for the more effectual attainment of justice.

The first proper step, after calling on the appeal, if against a conviction, is for the clerk of the peace to read the record of the conviction appealed against, as returned by the magistrate to the sessions (z). If the appeal is against an order of justices, the sessions having no original jurisdiction, but only power to quash or affirm the order (a), cannot proceed till the existence of the order is shown. If it is not already filed at the sessions, (as to which, Ch. XIII. Sect. 13,) the appellants must produce the original order, if an original

(x) A mistake of a clerk of the peace in stating three appeals as one, which from particular circumstances was overlooked at the sessions, but became afterwards material, was amended by the king's bench in R. v. West Riding, Yorkshire (Justices), 4 B. & Adol. 685.

(y) R. v. Lincolnshire (Justices), 3 B. & Cr. 548. Decided on 49 G. III. c. 68, s. 7, bastardy act; and disregarding R. v. Coystan, 1 Sid. 149.

(z) When so returned, it is the only one of which the sessions will take notice, and a mere formal mistake in a copy given to the appellant, will not afford ground for quashing the original so returned, R. v. Allen, 15 East, 336, 346; Paley on Conv. 266, 3rd edit. See In re Rix, 4 D. & R. 352; R. v. Barker, 1 East, 186, and post, tit. Convictions, Chap. VII. s. 3.

(a) 2 Nolan, 4th ed. 547, 548.

has been served on them, which the clerk of the peace will now read. If it is not produced, and has been traced to the hands of the respondent parish-officers, then unless notice to produce it at the hearing has been given to them by the appellants, no copy which may have been served on the latter can be put in for this purpose by them (6), nor will such a notice to produce be dispensed with by showing that it has been lost or destroyed since it was in the custody of the respondents (c). The notice of appeal, as well as the entry into recognizance, if required by statute as conditions precedent to the right of appeal, must next be proved or admitted whether it is intended to try, or only to move to respite the hearing; for till it is made to appear to the court that the appeal is duly lodged at the proper sessions, as well as that due notice has been given, and recognizance entered into, where so required by the act applicable to the appeal, their jurisdiction to hear or adjourn it will not attach.

The neglect of any one of the above preliminaries, or of other like matters specially required by any statute, will have the effect of preventing the sessions from entering or receiving, or dealing with the appeal in any manner; for, till it is regularly brought before them by compliance with the provisions of the act, it cannot be entertained, even for the purpose of adjourning it only, as the sessions cannot thus acquire a jurisdiction by an act of their own (d); and all they can do is to dismiss. it (e). If the act which gives the appeal requires notice, and a statement therein of the grounds of appeal, the appellant cannot travel out of the notice either of the sessions, or even in the court of queen's bench, though the objection appears on the face of a special case sent there (ƒ); but if the grounds are not so required to be alleged, he may; unless the respondent is misled by it, in which case it is clear the sessions should adjourn the appeal (g). A respondent may so waive proof of notice of appeal, or admit it, as to make proof of it unnecessary (h).

(b) Reg. v. Sussex (Justices), 9 D. P. C. 125. Per Patteson, J., approving 1 Burn's Justice, tit. Appeal, s. 5, 29th ed. 165; nor is this altered by 4 & 5 W. IV. c. 76, s. 79 or 81.

Mr. Nolan says it is the safest way to serve the pauper with notice to produce the original, citing Rex v. Kirkby (Stephen), Burr. Set. C. 664, and also to give notice to the justice to return any order which is in his possession to the sessions.

(c) Doe d. Phillips v. Morris, 3 Ad. & E. 46; 2 Phill. Ev. 9th ed. 216. See also Sharpe v. Lambe and another, 11 Ad. & E. 805, that even express admis. sion by an opposite party that a particular paper is a copy (not saying correct

copy) of the original, will not dispense with producing or accounting for such original.

(d) R. v. Oxfordshire (Justices), 1 M. & S. 448; R. v. King's Langley, Salk. 605; R. v. Lincolnshire (Justices), 3 B. & Cr. 548.

(e) 1 Burn's J., 29th ed. 165, subject to being compelled to hear it by mandamus, if wrong in refusing to hear it, R. v. Frieston, post.

(f) Reg. v. Costock (Inh.), 10 Ad. & E. 421.

(g) R. v. Westmoreland (Justices), 10 B. & C. 226.

(h) R. v. Herts (Justices), 4 B. & Adol. 561. Quære, see 6 New. Cas. 47.

But in cases in which no specific notice of appeal or recognizance is prescribed by statute, or in which one or both are required, but either no particular time is fixed for giving them, or "reasonable" notice is required, the sessions must decide whether reasonable notice of appeal has been given; while in cases where no notice need be given, they must decide whether the respondent has been so far surprised by the want of it, or misled by any notice which has in fact been given, as to be unable to meet the case without further time. If they find that he has, or that reasonable notice has not been given, they may respite the hearing at the instance of the respondent (i) on payment of costs, or without it, as they think reasonable; and if they do so, may respite it without any notice of appeal which may have been actually given, being proved or expressly admitted.

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Adjournment of Hearing of an Appeal in the common Mode of Entering and Respiting," or in Absence of material Witness.]— A power of adjourning the consideration of an appeal properly lodged at the quarter sessions as above directed is necessarily incident to them as a court of justice, and can only be over-ridden by positive enactment to the contrary (k). Thus, where it was questionable whether the statement of grounds of appeal against an order of removal had not been served irregularly, viz. on the wrong persons, in which case by the act the appellant could not be "heard," that word was held not to prevent the sessions at which the appeal had been entered from receiving, or after receiving, from adjourning it to the next quarter sessions, there to be determined (7). On the other hand, where the act provided that no appeal should be "brought, received, or heard," in default of notice (m), and where the terms of an act made the giving notice a condition precedent to entering the appeal, it was held that it could not be adjourned without proving such notice (n). But if the sessions think that a respondent has been misled by the terms in which grounds of appeal have been stated, they ought to adjourn the hearing (o).

(i) R. v. Herts (Justices), 4 B. & Adol. 561. This power of respiting for want of reasonable notice is expressly conferred by 9 G. I. c. 7, s. 8, in appeals against orders of removal; and by 17 G. II. c. 38, s. 4, in appeals against

rates.

(k) 2 Nol. P. L. 536; R. v. Kimbolton (Inh.), 1 N. & P. 606; 6 Ad. & E. 603; R. v. Wilts (Justices), 13 East, 352.

(1) See last note, and another case of R. v. Wilts (Justices), 8 B. & Cr. 380;

2 M. & Ry. 403.

(m) R. v. Lincolnshire (Justices), 3 B. & Cr. 548; 5 D. & Ry. 347; on 49 G. III. c. 68, s. 7.

(n) R. v. Oxfordshire (Justices), 1 M. & Sel. 446.

(0) R. v. Westmoreland (Justices), 10 B. & Cr. 226. Appellant was not bound by the act 55 G. III. c. 51, to have stated any grounds of appeal. He had also stated untenable grounds. See 1 B. & Adol. 933.

The practice of entering and respiting appeals to the next sessions, as of course, except where made imperative, or authorized by statute (p), where "reasonable notice" of appeal (that is, notice determined by the sessions to be reasonable (ante, p. 640), has not been previously given (q)) seems very questionable (r). Assuming, however, the appeal to be properly entered so as to give the sessions jurisdiction, that is, if all the preliminary conditions imposed by the statute, as notice of appeal, &c., are proved or admitted (s), either party may move to adjourn the hearing to the next quarter sessions. Other cases may occur in every sort of appeal, where from the absence of a material witness it may be fit to adjourn the hearing (t). Even where a statute gives an appeal to a particular sessions, directing the justices of the said sessions to hear and determine it, they have an incidental power to adjourn the hearing after it has been duly entered, when their immediate proceeding with it, e. g. in the case of absence of a material witness, appears to them inconvenient for the advancement of justice (u). It should not be adjourned later than to the next original sessions, or to an adjourned session held in the interval (x). A fresh statement of grounds of appeal may be made before the sessions to which an appeal is adjourned (y).

Question of Respiting Appeals: and of Costs, if so Adjourned for

(p) As by 9 G. I. c. 7, s. 8, in appeals against orders of removal; by 17 G. II. c. 38, s. 4, in appeals against poor-rates and overseers' accounts duly entered.

(q) R. v. Bucks (Justices), 3 East, 342; R. v. Wilts (Justices), 8 B. & C. 380; R. v. Salop (Justices), 7 East, 949. A poor's rate was published on 14th Oct. The "next sessions were on 23rd. Eight clear days' notice of appeal was required by the practice of the sessions. At January sessions an appeal was entered, and respited. Notice of appeal to the following Easter sessions was given, when the justices refused to hear the appellant, as being lodged out of time. But the court held the January sessions to be the first practicable sessions at which to lodge the appeal, and granted mandamus to compel it being heard, Reg. v. Suffolk (Justices), 8 D. P. C. 618.

(r) See p. 663, 3 B. & C. 548, and 5 Dowl. & Ry. 347.

(8) R. v. Oxfordshire (Inh.), 1 M.

& S. 442, 448. See R. v. Gloucestershire (Justices), post, p. 642; R. v. Herts (Justices), 4 B. & Adol. 561, post.

(t) R. v. Wilts (Justices) 8 B. & Cr. 380. As to a practice of sessions to adjourn an appeal against a rate, as of course, see post.

(u) R. v. Wilts(Justices), 13 East, 352; R. v. Westmoreland (Justices), 10 B. & C. 226; R. v. Leicestershire (Justices), 1 M. & S. 442. The entering and adjourning appeals against orders of removal is governed by 9 G. I. c. 7, s. 8. It is unnecessary to enter and respite such appeal at the next actual sessions when the order of removal is served too late to try the appeal at those sessions. R. v. Kent (Justices), 8 B. & C. 639; 3 Man. & Ry. 15; and post, Chap. XI. s. 2; R. v. Norfolk (Justices), 5 B. & Adol. 990; 1 N. & M. 67; post.

(x) See ante, p. 62, R. v. Grince, 19 Vin. 358.

(y) See Reg. v. Derbyshire (Justices), in Newborough v. Swarkston, post.

Absence of a material Witness.]—The sessions are to judge of the sufficiency of the ground assigned for adjournment (y); and if not satisfied with it, are to hear the appeal (z). Where the sessions, after arguments for and against an adjournment of the hearing, on account of the absence of a material witness for the appellant, decided against the postponement, and the appellant declined to go into his case, a mandamus to hear the appeal was refused (a). Where full notice of appeal was given without countermand, and both parties attended at sessions, but the appellants, late in the first day, moved to enter and adjourn the appeal to the next sessions on an affidavit stating the absence of a material witness; the sessions refused the application, except on the terms of paying the respondents their actual costs of the day, as was their practice where due notice had been given but not countermanded in time. These costs not being paid, the appeal was not entered. The court held the refusal to enter immaterial; that the respite of the hearing was to be granted or not, as the sessions might think reasonable (9 G. I. c. 7, s. 8), and that their discretion had not been improperly exercised (b). The adjournment of an appeal at the instance of the appellant may, under the circumstances of the absence of a material witness at the next sessions, make it imperative on them either to hear or adjourn it again, though their own rules of practice are infringed (c). If appellants are ready to prove service of notice of appeal, and respondents at that session act on the notice, treating it as proved, and procure the adjournment of the trial till the next session on payment of costs, the appellant cannot at such next session be called on for further proof of the notice (d).

Opening the Merits of the Appeal by Counsel for Respondents.]— When the appeal is brought regularly before the sessions by the proof, or on the admissions above described, and is not adjourned, the leading counsel for the respondents, as being the party sustaining the order or other act complained of, opens his case on the merits, and adduces evidence in support of it, without being confined to the witnesses examined before the magistrates below (e).