appeal is so imperfectly or incorrectly set forth as to be insufficient to enable the party receiving the same to inquire into the subject of such statement, and to prepare for trial; and if the court is of opinion that any objection to any ground of appeal ought to prevail, it may amend the grounds of appeal on such terms as to the court shall appear just and reasonable. Where a statute (e) required a party to give notice in writing of his appeal, and of the ground thereof; and he gave notice of appeal, stating as a ground that he was not guilty of the offence, this was held to be a sufficient notice, as it meant that all the ingredients of the offence were disputed (f). Where an act required the party appealing to send with the notice of appeal a statement of the grounds of appeal fourteen days at least before the first day of the sessions at which such appeal is intended to be tried, and provided that "it should not be lawful for the appellant, on the hearing of the appeal, to go into or give evidence of any other grounds of appeal than those set forth in such statement," it was held, the trial of the appeal having been adjourned to the next sessions, that the appellant might serve a fresh statement of grounds of appeal, raising several fresh objections, and that the trial of the appeal having been adjourned, the sessions to which it was adjourned were "the sessions at which such appeal" was "intended to be tried;" and that the appellants were entitled to deliver fresh grounds of appeal fourteen days before those sessions (g).

If the court thinks the case opened and proved requires an answer, the appellant then opens his case in the same manner, and the respondent has a general reply upon the whole case.

Where two or more defendants have been convicted and fined in separate amounts for the same offence, it is not competent, if separate appeals have been taken, to examine one of the appellants as a witness upon the hearing of the other 'appeals, until there has been a decision on one of them, so as to render that party a competent witness.

(e) 5 Geo. IV. c. 33, Eng.

(f) R. v. Newcastle Js. 1 B. and Adol. 933.

(9) R. v. Inhabitants of Kendal, 1

Ellis & Ellis, 492. Q. B.; R. v. Derbyshire justices decides same position, 6 A. & E. 612; note b to R. v. Kimbolton.

Power to vary, &c. the original order.] The court has power to confirm, vary, or reverse the order made by the magistrates, as certified in the form of appeal (h). The power to vary an order on appeal conferred by the statute (i) has been frequently exercised at quarter sessions, by diminishing the sum of money, penalty, or term of imprisonment imposed; but much doubt exists as to the extent to which orders may be varied in other respects, as there are no decisions marking the limits of the authority of the appellate court. If the order appealed from cannot be sustained, it would appear to be improper to make a new order, even though the evidence would sustain it, the effect of which would be to turn the appellate court into a court of original jurisdiction. Perhaps, also, an order totally defective ought not to be amended, nor should an order be altered in a matter where the magistrates at petty sessions are entrusted with a discretion. If they have failed to exercise it, or exercised it improperly, the court of appeal ought not to use that discretion which has not been originally entrusted to them. On the other hand, it seems reasonable to give more effect to the word "vary," beyond mere diminution of the matter ordered. Where an order contains all the necessary elements to give it validity, the correction of an error, mistake, or redundancy, so as to leave the order valid, would appear to be in furtherance of the object of the legislature in making use of this word, which seems intended to give some discretion to be exercised by the appellate court in upholding orders not entirely satisfactory as originally made (j).

Costs.] The power of sessions to award costs on determining an appeal is not incidental to their jurisdiction, and exists only where given by statute. The court of appeal has power, under the provisions of the Petty Sessions Act, to award to either party any sum not exceeding forty shillings, for the costs of such

(h) 14 & 15 Vic. c. 93, s. 24. cl. 6. The adjudication of the justices is not complete until it has been reduced to writing, and signed by them; R. v. Flintshire Js. 15 L. J. M. C. 50.

(i) 14 & 15 Vic. c. 93, s. 24.
(j) See the powers conferred by the

Civil Bill Act, 14 & 15 Vic. c. 57, s. 106. on assistant-barristers as to amending variances in any proceeding in their court; also their powers in respect to any proceedings brought before them under the Poor Law Act, 12 & 13 Vic. c. 104, s. 29.

appeal (k). If the requisite notices have not been given, and the other conditions of the statute have not been fulfilled, the court has no power to entertain the appeal, for their jurisdiction depends upon these essential preliminaries being complied with; and consequently, if the appellant fails to bring himself properly before the court, the justices have no power under the Petty Sessions Act, s. 24, cl. 6, to entertain the appeal or to award costs. But if the appellant has such a locus standi, it would seem, from the wording of that clause, that if he should withdraw from his appeal on the eve of its being heard, or neglect to attend to prosecute it, the court has power to confirm the order below, and to award costs. If either party has been ordered to pay costs, the justices at petty sessions may enforce their payment in the same manner as any costs awarded by the original order (). Where the costs of appeal are ordered to be paid by a particular party, but the sum is not ascertained during the sitting of the court, but is afterwards taxed by the clerk of the peace, this taxation is not irregular (m). In an excise case (n) it was held that the quarter sessions could not give costs against the Crown. The 18 & 19 Vic. c. 90, s. 2, which gives costs against the Crown in certain cases, is confined to such informations, &c. as are mentioned in sec. 1, and to which the Attorney-General must be a party. In cases of disputed debts, the chairman of quarter sessions has the power of awarding upon appeal the same costs as if the proceedings were had on an original civil bill, under 14 & 15 Vic. c. 57 (o). As the Petty Sessions Act defines the amount of costs that may be awarded on appeal, it is submitted that, under the Larceny and Malicious. Injuries Acts (p), the appellate court is restricted to the same

(k) 14 & 15 Vic. c. 93, s. 24, cl. 6. See 21 & 22 Vic. c. 100, s. 8, which imposes the costs of the notice and service on the appellant. The provisions of 14 & 15 Vic. c. 93, as has been frequently stated, do not apply to the acts relating to her Majesty's revenue of excise or customs, stamps, taxes, or post-office, or relating to the preservation of game, see s. 42.

() 14 & 15 Vic. c. 93, s. 24, cl. 7.

(m) R. v. Westmoreland Js. 12 L. J. M. C. 113. Forty shillings is the utmost costs that can be awarded ; vide supr.

(n) R. v. Beadle, 26 L. J. M. C. 111.

(0) 22 Vic. c. 14, s. 5; see ante, p. 196, for jurisdiction of the chairman at quarter sessions to avoid costs on adjournments.

(p) 24 & 25 Vic. c. 96, id. c. 97.

amount, by reason of the provisions of the Petty Sessions Act being incorporated into those statutes.,

No second appeal.] If the appeal is dismissed for informality, occasioned by the party not having given notice in time, or not having entered into a recognizance as required by the particular statute within the time specified, the right to appeal is gone, if the appeal should be made to the next sessions. Where, however, a party has under a particular statute a given time within which his appeal may be brought, if any irregularity occurs he may correct it, if he keeps within the prescribed time, and provided he does not bring on the appeal for hearing at a sessions; for if he does, and that his appeal is dismissed for irregularity, he cannot appeal again, though the time limited by the particular statute has not expired (9).

Judicial notice of petty sessions districts.] The court of quarter sessions ought to take judicial notice of the different petty sessions districts in their county. Lord Denman, C.J., says (r), "Upon appeal it was objected that there was no such petty sessional division, and consequently that the order was on the face of it made without jurisdiction. The court of quarter sessions properly held that they would not require or indeed receive evidence as to petty sessional divisions in their county, but would take judicial notice of them;" therefore, where there should be an appeal from a conviction made upon complaint of an offence committed in a townland of one county, which has been added to a petty sessions district of another county, and where it is alleged the magistrate had no jurisdiction to try the offence at that petty sessions, the court of quarter sessions should take judicial notice what county the townland belongs to.

Certificate of decision.] When the court has decided the appeal, the clerk of the peace or the proper officer of the recorder's court, as the case may be, certifies the decision at the foot of the form of appeal, and returns it, with the proceedings, to the justices of the petty sessions at which the order has been

(0) Coppinger, C. C. 667; R. v. Yorkshire Js., 3 T. R. 776.

(r) R. v. Whittles, 3 N. S. Ca. 397.

made. This is to be done within seven days after the appeal has been decided (s).

Certificate of appeal not prosecuted.] If the appeal has not been prosecuted, the officer is to give a certificate to that effect upon the recognizance, and return it to the justices at petty sessions, within seven days after the termination of the sessions at which the appeal ought to have been prosecuted, without making any charge for the certificate (t).

Mandamus to re-hear will not lie.] It has been decided that the Court of Queen's Bench will not grant a mandamus to re-hear an appeal which the justices have gone into and decided, though erroneously (u).

Order confirmed on appeal, no action.] By 12 Vic. c. 16, s. 6, where a warrant of distress or warrant of commitment shall be granted by a justice of the peace upon any conviction or order, which, either before or after the granting of such warrant, shall have been confirmed upon appeal, no action lies against the magistrate who granted the warrant for anything done under it by reason of any defect in such conviction or order.

CHAPTER XX.

CASE STATED.

Br statute 20 & 21 Vic. c. 43, entituled "An Act to Improve the Administration of the Law so far as respects Summary Proceedings before Justices of the Peace," provision has been made for obtaining the opinion of any of the superior courts of law in Dublin on any question of law where either party is dissatisfied with the decision of the justices, and that, whether the proceeding be affirmed or dismissed (a).

(8) 14 & 15 Vic. c. 93, s. 24, cl. 6. As to the rights of the parties not being affected by the negligence of the clerk, see Maxwell v. Maclauran, Huds. El. Franch. 319.

(t) 14 & 15 Vic. c. 93, s. 24, cl. 6.

(u) R. v. Carnarvon Js., 4 B. & Ald. 86; Paley on Conv. 327, 4th ed. vide post, tit. Certiorari.

(a) See Davys v. Douglas, 23 L. J. M. C. 193.