unless where an assault shall be threatened or made upon the person impounding, or where any rescue shall be attempted, and the impounding in any other place shall be necessary for the detention of the animal or the safety of such person (q). The person by whom the animal is impounded is at the time to give notice to the pound-keeper and the owner of the animal, specifying the parish and townland in which the animal has been seized, and the reason for impounding the animal, and the pound in which it has been lodged (r).

How sums to be accounted for.] Whenever any warrant to levy any penal or other sum by distress shall be addressed to the constabulary, the sums levied under it shall be accounted for under the provisions of the Fines Act (Ireland), 1851 (8); but, whenever any such warrant shall be addressed to any other person than the constabulary, such person shall pay over the sum levied under it to the person who shall appear to be entitled to the same, or in such other manner and subject to such account of the same as the justices shall direct (†).

Distress may be sold by auction without licence.] In every case where any sub-inspector or member of the metropolitan police force shall be empowered to distrain any goods under a warrant of distress, he is authorized to sell or cause the same to be sold by auction by any head constable of the constabulary force, or by any member of the metropolitan police force, as the case may be, without procuring any licence to act as an auctioneer; and may deduct out of the amount of such sale all reasonable costs and charges actually incurred in effecting the same (u).

Return of warrant.] The form of the warrant provides for the time of its return (v); and whenever the person to whom the warrant shall be addressed, transmitted, or endorsed for execution, shall be unable to find the goods of the person against

(2) 14 & 15 Vic. 92, s. 19, cl. 6. (r) Id. cl. 7. For punishment for rescuing distresses, or otherwise offending therein, see id. If the animals should be injured by reason of the insufficiency or unwholesomeness of the pound, it would seem that the pound-keeper would be liable to an

action at the suit of the owner, Wilder v. Speer, 8 A. & E. 547.

(8) Vide appendix for statute 14 & 15 Vic. c. 90.

(t) 14 & 15 Vic. c. 93, s. 32, cl. 1. (u) Id. cl. 4.

(v) See form E, schedule to 14 & 15 Vic. c. 93.

whom the warrant shall have been issued, he shall return the warrant to the justices by whom the same shall have been issued, within the time fixed by the warrant, or within a reasonable time, when no such time has been so fixed; together with a certificate (w), stating the reasons why the same has not been executed; and the J. P. may issue the same warrant again, or any other from time to time (x). If any sub-inspector, head, or other constable, or other person shall wilfully neglect to return any unexecuted warrant at the time required by the justices, or shall commit any wilful default in respect to the execution of the same, he shall be liable to a penalty not exceeding five pounds (y). Distress replevisable.] As to the right of replevying goods taken for a penalty, it would be foreign to the scope of this work to enter into a treatise on the subject. Suffice it to say that the result of the modern authorities seems to be that they are replevisable (z).

Priority of warrant.] A warrant to distrain, issued by magistrates, but not executed by the parties to whom the warrant is directed, does not take priority over a fi. fa. issued subsequently, and executed before any seizure under the warrant to distrain (zz).

(w) See form Ga, id.

(x) Id. s. 33.

(y) See 14 & 15 Vic. c. 90, s. 8, cl. 2, which renders any member of the constabulary by whom any warrant shall be executed liable to a penalty not exceeding twenty pounds, if he neglects to pay over the amount received or levied thereunder, or to account for such levies, at such times and in such forms, and with such vouchers as directed by that act.

(z) See George v. Chambers, 11 M. & W. 149, where all the early authorities are considered. See also Jones

v. Johnson, 5 Exch. 862; 875 S. C. in error, 7 Exch. 452; Allen v. Sharp, 2 Exch. 352; Morrell v. Martin, 3 M. & G. 581; Shannon v. Shannon, 1 Sch. & Lef. 327; Attorney-General v. Brown, 1 Swanst. 265; Paley on Conv. 264. A replevy may be maintained against magistrates who issue a warrant of distress against the goods of a party, and they may be the only parties made defendants. Jones v. Johnson, 29 L. J. M C. 11.

(zz) Whitestone v. Smith, C. P. Mich. T. 1861, M. S.

CHAPTER XIX.

APPEAL.

THE courts to which appeals are taken are the courts of quarter sessions throughout Ireland; and when the order is made in the Dublin metropolitan district, the appeal lies to the Recorder. The justices and chairman preside by virtue of their commission, and the chairman of the county is their chairman under the provisions of the Civil Bill Act (a). The chairman may proceed to hear appeals, although no other J.P. for the county, riding, or place be in attendance (b). Borough justices would appear to have no jurisdiction to preside on appeals taken from orders made out of their boroughs. Where an appeal is determined at Q.S. by magistrates, some of whom are interested in the matter, the proceeding is null, and the proper course is to quash it on a certiorari (c). No objection appears to exist against magistrates presiding in the court of appeal where they have been the justices acting below.

Where the right exists.] It is the universal rule of our law, that an appeal exists only where it is given by express enactment (d); it should therefore be very easy to decide whether a person has that right or not. Unfortunately, however, for the practitioner, modern legislation has given rise to many doubts, and has rendered it difficult to decide, in many instances, whether the right has been taken away where it had been previously conferred, or whether it has given that privilege where before it did not exist.

By the 14 & 15 Vic. c. 93, s. 24, a general power of appeal is given in every case of summary jurisdiction, except in proceed

ings under any acts relating to the revenue, excise, customs, stamps, taxes, or post-office, or relating to the preservation of game, where an order shall be made by the justices for payment of any penal or other sum exceeding twenty shillings (e), or for any term of imprisonment exceeding one month, or for the doing of anything at a greater expense than forty shillings, or for the estreating of any recognizance to a greater amount than twenty shillings, but in no other case.

This provision purports to regulate the power of appeal under every prior statute, conferring a summary jurisdiction upon justices, only excluding proceedings under the Revenue, Excise, Game, &c. Acts, mentioned in the 43rd section; but much doubt has been caused by the 23rd section of 14 & 15 Vic. c. 92 (ƒ), which deals with a large class of cases punishable upon summary conviction, as it purports to regulate appeals under that act, which was passed on the same day as the Petty Sessions Act. The 23rd section of the Summary Jurisdiction Act gives an appeal from an order of justices for the doing of anything at a greater expense than twenty shillings, whilst the 24th section of the Petty Sessions Act uses the words forty shillings. By reason of the negative words in the latter section annexed, it would appear that the right to appeal in cases apparently coming within the 23rd section of the Summary Jurisdiction Act, does not exist; however, this inconsistency may be explained by construing the words in this section as applying to cases within that particular act, leaving the provisions of the Petty Sessions Act as to appeals, to apply to all other cases.

The effect of the Petty Sessions act is to give an appeal in some cases where before the right of appeal did not exist; e.g. under the Poor Law Act, 1 & 2 Vic. c. 56, s. 106, no appeal

(e) This sum relates to the amount the party is to pay by way of penalty as compensation, and not to costs, R. v. Warwickshire, 6 El. & Bl. 841. The right to appeal is to depend upon the comparative gravity of the offence, and not on the amount of costs, which do not depend upon the nature of the offence, but vary according to the distance of the resi

dence of the parties, the number of witnesses, the number of adjournments, and other similar matters, ib. 120.

(f) The Summary Jurisdiction Act, 1851; by incorporating this section into the 22 Vic. c. 114 (Recovery of Small Debts), greater confusion has arisen.

is given to a party from the conviction of justices, when the person is committed in a penalty under five pounds; on the other hand, it deprives parties of their right to appeal in many cases where an appeal is given upon a conviction for a penalty under twenty shillings. Where any statute passed subsequently to the 14 & 15 Vic. c. 93, gives a right to appeal in certain cases and in none other, its precise provisions must be followed; but if it should be silent as to that power, or not imperative as to the precise method to accomplish an appeal, the right would exist as conferred by the provisions of the 14 & 15 Vic. c. 93.

Larceny and Malicious Injuries Acts.] Some doubt also suggests itself on considering the sections in the Larceny and the Malicious Injuries to Property Acts (g) which deal with appeals. It will be seen on examining both statutes that the power of appeal and the mode of procedure directed to be adopted varies from the provisions of the Petty Sessions Act, although it is declared by the former statutes (h) that all the provisions of the Petty Sessions Act shall be as applicable to prosecutions under those acts as if incorporated therein. An appeal is only given in express words under the Larceny and Malicious Injuries Acts where the penalty inflicted by two J. P.'s in Ireland exceeds £5; or one month's imprisonment. There are also certain notices required to be given, varying from the course directed to be pursued by the Petty Sessions Act in all cases of appeal; and the sessions to which the appeal is to be made is different if the conviction be had within twelve days and more than seven from the holding of the next quarter sessions. The discrepancy in the course to be pursued where the accused is fined in a sum exceeding £5 may be reconciled by giving, in that event, effect to the directions of both the Larceny and Malicious Injuries Acts, as well as to the Petty Sessions Act; and where the party is fined in a sum less than that amount, yet in such a sum as would give him a right to appeal under the Petty Sessions Act, he shall have his right to appeal preserved under the provisions of that

(g) 24 & 25 Vic. c. 96, s. 110; id. (h) Id. c. 96, s. 120; id. c. 97, s. 76.

c. 97, s. 68.