P. Fine not exc. £5; in default of payment whereof, together with costs, immediately or within the time appointed, impr., with or without h. 1., for not exc. 2 cal. m., unless sooner paid, (s. 10).-Or, if before two Justices, instead of pecuniary penalty, at their discretion, impr., with or without h. 1., for not exc. 3 cal. m. (s. 10). (H)

S. Id., (s. 3). [One Justice or two Justices].-(2) Damaging animal, person, or property].-Any person cruelly beating, ill-treating, overdriving, abusing, or torturing any animal, doing any damage or injury to such animal, or thereby causing any damage or injury to any person,or to any property.

P. Fine not exc. £10, by way of compensation; in default, impr. &c., as in offence 1.

MEM.-This punishment is not to affect the punishment the offender may be liable to for the beating, &c., of the animal, as offence 1, nor to prevent any proceeding by action.

S. Id., (s. 2). [One Justice or two, s. 10.]—(3) Keeping cockpit, &c. -Keeping, or using, or acting in the management of any place for the purpose of fighting or baiting any bull, bear, badger, dog, cock, or other kind of animal, whether domestic or wild, or permitting or suffering any place to be so used.

P. Fine not exc. £5 for every day on which offender shall so keep, &c., such place; in default of payment, impr. as in offence 1.

MEM.-Every person receiving money for admission to be deemed the keeper.

S. Id., (s. 4.) [One or two Justices].-(4) Improperly conveying animals. -Conveying or carrying, or causing to be conveyed or carried,-in or upon any vehicle any animal in such a manner or position as to subject such animal to unnecessary pain or suffering.

P. Fine not exc. £5; in default, impr. as in offence 1.

S., Id. (s. 12). [One or two Justices].—(5) Obstructing constable.-At any time or in any manner unlawfully obstructing, hindering, molesting, or assaulting any constable while in the exercise of any power or authority under or by virtue of this Act.

P. Not exc. £5; in default, impr. &c., as in offence 1.

S. Id., (s. 14). One or two Justices].-(6) Proprietor or owner of stage carriage, cart, &c., failing to produce his driver without satisfactory excuse. (1)

(H) Summons, Conviction, Witnesses].-The Form (see post, Part II.) of conviction given by this statute must be used. (See 11 & 12 Vic., c. 43, s. 17). The service of the summons is as usual, and a warrant may be granted without a summons, (s. 8). S. 9 authorizes any Justice to summon witness; and, after tender of his reasonable expenses in that behalf, if such witness neglect or refuse to attend at time and place mentioned in the summons, then, upon proof of personal service of summons, and such tender of expenses, such Justice may issue a warrant and commit any witness appearing or being brought before him who shall refuse to give evidence, for not exc. 21 days, or until such witness shall sooner be examined and give evidence. (See 11 & 12 Vic., c. 43, s. 7; and "Witness," post).

(1) Appeal.-S. 17. In all cases where the sum adjudged to be paid shall exceed £2, and in all cases where imprisonment shall be adjudged, any person may

P. Fine 40s., and so from time to time as often as summoned, until he produce the driver; in default of payment, impr. as in offence 1.

S. Id., s. 2. [One or two Justices].—(7) In any manner encouraging, aiding, or assisting at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal, in any place kept or used for the purpose. (K) P. Fine not exc. £5 for every such offence; in default of payment, impr. as in offence 1.

APPEAL.

An appeal 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 brought in order to avoid or quash such judgment. 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 Sessions to the review of the General or Quarter Sessions. (Dickinsor, Q. S., 614). The right of appeal exists only when given by express enactment, and cannot be extended to cases not distinctly enumerated. (Paley, 296).

Some Statutes contain a provision making it obligatory on the convicting Justice, at the time of the conviction, to make known to the party his right to appeal. In every case it is highly desirable the party should be so informed by the Justice.

When an appeal is allowed by Statute, it is usually upon certain conditions, either that a notice be given to the Justice whose act is appealed from, and a recognizance entered into to prosecute the appeal, (L) or to deposit the amount of the penalty and costs.

If no mode of proceeding to appeal is provided by the Act under which the conviction has been had, the 5th W. IV., No. 22, s. 3, regulates the mode in this Colony. (M)

appeal to the next Court of General Quarter Sessions, holden not less than 14 days after the day of conviction, giving to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such sessions; and also either remaining in custody until the sessions, or entering into a recognizance, with two sufficient sureties, before a Justice, conditioned personally to appear, &c. The late case of R. v. JJ. of Warwickshire, (25 L. J. M. C., 119), decided that where Statutes give appeal, "where the sum adjudged to be paid shall exceed" a stated amount (as here), it means the penalty only, and does not include the costs. In this case the appeal did not lie, because the penalty was only 2s. 6d., although the costs and fine were £2 10s. As to production of servants by owners, see s. 24. (K) See Clarke v. Hague (29 L. J. M. C., 105), and post, p. 487.

(L) In R. v. Aston, (19 L. J. M. C., 236; In re W. Blues, 24 L. J. M. C., 138), the word "immediately," in reference to the time of entering into the recognizance, was held not to mean at the time of the conviction, but the prisoner is entitled to be discharged if he apply to have the recognizances taken promptly after the conviction, regard being had to all the circumstances of the case. (See Paley, 305). (M) S. 3 enacts, "That in all cases in which any person shall be or is now entitled to appeal from any judgment or conviction of any Justice or Justices under or by virtue of any such Act as aforesaid, (and no other mode of proceeding shall have been or shall be in that behalf provided), then, if such person (in case a pecuniary penalty shall have been awarded), shall pay into the hands of the convicting Justice, or one of the convicting Justices, (as the case may be), the full amount of such penalty, together with the assessed costs and charges, within one week next after such conviction, or (in case no pecuniary penalty shall have been awarded) shall, within one week next after the date or time of such judg

Payment to the Justice of penalty and costs within one week after the conviction, or, in case where no pecuniary penalty shall have been awarded, entering into a bond to the convicting Justice within the like period, are the only conditions imposed by this Act. It differs from almost every other enactment on the subject, in requiring the security to be by bond, and not recognizance. The Court of Quarter Sessions has refused to hear appeals (under this Act) where the security entered into has been a recognizance, and not a bond. Mr. Nichol's book is incorrect in this respect. The following is a Form of bond :—

Know all men by these presents, That We, A. B., (appellant), of , C. D., of.. and E. F., (sureties), of in the Colony of New South Wales, are held firmly bound to M. N. and X. Y., Justices of the Peace, &c., their executors, administrators, and assigns, to the use of Her Majesty the Queen. her heirs and successors. in the sum of

pounds of lawful money to be paid to the said M. N. and X. Y., their executors, administrators, and assigns, to the use of Her said Majesty, her heirs and successors, to which payment well and truly to be made we bind ourselves and each of us, and each of our heirs, executors, and administrators. firmly by these presents. Sealed with our seals, and dated this day of, one thousand eight hundred and sixty

Whereas, by a certain conviction [or order] [as the case may be] under the hands and seals of the said M. N. and X. Y.. the said A. B. hath been convicted for that he the said A. B. (state offence). And whereas the said A. B., -- hath declared his intention to appeal against the said conviction :

in the said

Now the condition of the above-written obligation is such, that if the above bounden A. B. shall at the next General Quarter Sessions to be holden at Colony, prosecute with effect an appeal against the said conviction, and shall abide the event of the same appeal, and pay the full amount of all such costs as shall or may on such appeal be awarded against him, then this obligation to be void, or else to remain in full force and virtue. Signed, sealed, and delivered in the presence of A. B., (L.S.) C. D., (L.S.) E. F., (L.S.)

The appellant should, in every case, carefully examine the Act under which the conviction has been made, and by which the right of appeal is

ment or conviction had, enter into a bond to the convicting Justice or Justices, to the use of His Majesty, his heirs, and successors, with two sufficient sureties, to be approved by such convicting Justice or Justices, conditioned to prosecute such appeal with effect, and to abide the event of the same appeal, and to pay the full amount of all such costs as shall or may on such appeal be awarded against the appealing party, then it shall be lawful for such person to appeal from such judgment or conviction to the next General Quarter Sessions, unless such Sessions shall be held within six days next ensuing, and in that case to the General Quarter Sessions next but one afterwards: Provided that the matter of every such appeal shall be heard and determined by the Justices assembled and meeting at a Court or adjourned Court of General Quarter Sessions, holden at such one of the places which shall or may be appointed for the holding of General Quarter Sessions as shall happen to be the place (or nearest to the place) where the judgment or conviction appealed from shall have been had; and the Justices at such Sessions so assembled shall hear and thereupon finally determine the matter of every such appeal in a summary way, and their judgment thereon shall be final and conclusive, to all intents and purposes, nor shall any writ of certiorari be afterwards allowed; and such Justices of such Sessions so assembled are upon such appeal hereby authorized to award in all cases such costs as to them shall appear proper to be paid to either party, not exceeding the sum of ten pounds in the whole on any one appeal; and in case the appeal shall be allowed, and the conviction or judgment appealed from be quashed, then (in cases where a pecuniary penalty was awarded) the whole amount of such penalty and of the costs and charges aforesaid shall be forthwith, on demand, returned to the party so appealing."

given, on account of the great variety of the statutory conditions, and as the Sessions have no jurisdiction to entertain it unless the conditions have been complied with. (Dickinson, Q. S., 639).

The convicting Justice should fix the sum for which the bond should be given, and also be satisfied of the sufficiency of the sureties.

If the Statute requires the appellant to enter into a recognizance, then a recognizance, and not a bond, should be entered into.

The following form of recognizance can be used:

[Proceed as in the Form of Recognizance, Ch. II., No. 12, (E.), post, p. 454, stating the condition thus]:-Whereas by a certain conviction under the hand and seal of A. B., one of Her Majesty's Justices of the Peace in and for the Colony of ——, the said - is convicted for that the said -, on, &c., (stating the offence), and whereas the of his intention to appeal against the said

said —— hath given due notice unto conviction: Now the condition of this recognizance is such, that if the above bounden shall personally appear at the next General Quarter Sessions of the Peace to be holden at

in the said Colony, and shall then and there try such appeal, and abide the judgment of the said Court of General Quarter Sessions thereupon, and pay such costs as shall be by the said Court awarded, then this recognizance is to be void.

Taken und acknowledged before me,

L. M., J. P.

The Justice should cause the conviction or order to be prepared and forwarded with the appeal to the Clerk of Peace for the district; any neglect in this behalf may defeat the success of the appeal, and therefore render the Magistrate liable in an action for special damages. (1 T.R., 414).

As the proceeding at the Sessions is a re-hearing of the case, it is necessary that the witnesses on whose evidence each party relies should be in attendance at the Quarter Sessions, as the depositions taken before the Justices are not admissible in evidence there. Subpoenas, to compel the attendance of witnesses, are issued by the Clerk of the Peace.

Notice of appeal be given].—It is usually required by the Statute authorizing the appeal, that the defendant give due notice of his intention to appeal. In all cases notice should be served on the prosecutor and the convicting Justices. The following is a Form of Notice :-

To wit. }

This is to give you [or, and each and every of you] notice, that I, do intend, at the next General Quarter Sessions of the Peace to be holden at —, in the Colony of to appeal against a certain conviction of me, the said by Esquire, one of Her Majesty's Justices of the Peace in and for the Colony of for having, as is therein and thereby alleged, on ——, at -- (stating the conviction, as the case may be, a copy of which should be procured from the Magistrate's Clerk for that purpose), and ordered to pay a penalty of --, together with the sum of

for costs.

Dated this

day of

and

in the year of our Lord one thousand eight hundred J. S. (Appellant's signature).

A duplicate copy of this notice should be kept for proof of the service at the trial, and should be endorsed with a memorandum of the service. The notice required is either a reasonable notice, without specifying any length of time, or it is directed to be given a certain number of days after the conviction and before the Sessions; unless the Statute expressly require the notice to be in writing, it may be verbal, (R. v. JJ. of Salop, 4 B. & A., 626). Under the various titles, the clause of the Statute

giving the power of appeal, and regulating the mode of doing so, is given in this work. Where three Justices have convicted, notice of appeal must be given to each. (R. v. JJ. of Bedfordshire, 11 A. & E., 134).

The appellant should enter the appeal for hearing with the Clerk of the Peace. It has been lately ordered by the Chairman of Quarter Sessions for the Metropolitan district, Mr. Holroyd, that this be done on or before the Saturday next preceding the Sittings.

Practice]-Appeals are generally called on for hearing at the conclusion of the Criminal business of the Quarter Sessions; in each case the Clerk of the Peace reads the conviction; the appellant is bound, if required, to satisfy the Court, in limine, that the right of appeal exists, and that he has complied with the conditions on which the right of appeal is given. Afterwards the appellant may object to any illegality appearing on the face of the conviction, and, if such objection be sustained, the Court must quash the conviction; but, if the conviction be sustained, the respondent proceeds to support the conviction.

Fresh Evidence may be adduced on the hearing of the Appeal].-On the trial against a conviction, either party may adduce fresh evidence in addition to or in place of that which was originally offered at the Police Office, so that such additional evidence be within the terms of the notice ; and the informant in his new character of respondent at the Quarter Sessions, will have to begin and prove his case de novo, as he did in the first instance, upon the hearing of the information, and should be prepared accordingly. The trial of the appeal is thus, in fact, a rehearing of the merits. (See Dickenson's Q. S.)

The convicting Justice should not sit as a Justice on the hearing of the appeal at Quarter Sessions.

Section 27 of 11 and 12 Vic., c. 43, (page 207), provides that, after an appeal decided for respondent, the conviction is to be enforced, and the costs, if either party to have them, to be paid to the Clerk of the Peace ;—that Justices are to issue a distress warrant for the same, and, in default, commit. The statutory forms will be found, Part II., Chap. II., p. 482. (N)

Of the mode of proceeding to obtain Mandamus or Certiorari].-—It is the less necessary to notice further the practical means to be pursued in order to obtain the mandamus or certiorari, on account of the unfrequency with which summary convictions will now be brought under the notice of the Judges, arising, doubtless, from the clause which is usually inserted in modern Statutes relating to the summary jurisdiction, expressly taking away the power to remove the proceedings by certiorari or otherwise into any of the superior Courts, and the more easy remedy provided in this Colony by the Statutory Prohibition; (see Justices, No. 4, post, p. 259). The Supreme Court will not, upon the return of the writ of certiorari, re-hear the merits, although in certain cases, and under peculiar circumstances, the Judges in England have received affi

(N) The section (s. 27) establishes one general rule and uniform practice as to appeals against summary convictions and orders, and to those cases only, (see ex parte Huntley, 23 L. J. M. C., 106), and impliedly repeals the provisions of any previous Statute in which there is a different enactment as to the costs of appeal. (R. v. Hellier, 17 Q. B., 229).