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shall seem meet, conditioned to prosecute without delay such appeal, and to submit to the judgment of the superior court, and pay such costs as may be awarded by the same; and the appellant shall at the same time, and before he shall be entitled to have the case delivered to him, pay to the clerk to the said justice or justices his fees for and in respect of the case and recognizances, and any other fees to which such clerk shall be entitled, which fees, except such as are already provided for by law, shall be according to the schedule to this act annexed marked (A), until the same shall be ascertained, appointed, and regulated in the manner prescribed by the statute eleventh and twelfth Victoria, chapter forty-three, section thirty; and the appellant, if then in custody, shall be liberated upon the recognizance being further conditioned for his appearance before the same justice or justices, or, if that is impracticable, before some other justice or justices exercising the same jurisdiction who shall be then sitting, within ten days after the judgment of the superior court shall have been given, to abide such judgment, unless the determination appealed against be reversed.

IV. [Justices may refuse a case where they think the application frivolous.] If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the appellant, sign and deliver to him a certificate of such refusal; provided that the justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of her Majesty's Attorney-General for England or Ireland, as the case may be.

V. [Where the justices refuse, the Q. B. may order a case to be stated. Where the justice or justices shall refuse to state a case as aforesaid, it shall be lawful for the appellant to apply to the Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also upon the respondent, to shew cause why such case should not be stated; and the said court may make the same absolute or discharge it, with or without payment of costs, as to the court shall seem meet, and the justice or justices, upon being served with such rule absolute, shall state a case accordingly, upon the appellant entering into such recognizance as is hereinbefore provided.

The court refused a rule to justices under this section, ordering them to state a special case for the opinion of the court, where the objection was that they had improperly received evidence; to enable the court to interfere, it must appear that the determination

of the justices was wrong (l). Where a publican applies to magistrates sitting at P. S. for a renewal of his licence under 17 & 18 Vic. c. 89, and 18 & 19 Vic. c. 62, which application is refused upon the ground that the applicant's house had not been properly conducted during the previous year, it has been held that this is not a case in which the superior court will direct the magistrates to state a case under this section, it being neither an information or complaint within the meaning of this statute, but a matter of fact, to be ascertained by the justices (m).

VI. [Superior court to determine the questions on the case.] The court to which a case is transmitted under this act shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm, or amend the determination in respect of which the case has been stated, or remit the matter to the justice or justices, with the opinion of the court thereon, or may make such other order in relation to the matter, and may make such orders as to costs as to the court may seem fit; and all such orders shall be final and conclusive on all parties: provided always that no justice or justices of the peace who shall state and deliver a case in pursuance of this act shall be liable to any costs in respect or by reason of such appeal against his or their determination.

It is not the duty of the court to give an opinion on a question submitted by the parties, appellant and respondent, upon the discussion of a case submitted by magistrates which does not contain that question (n). No objection can be relied upon in the court above which was not taken before the justices (o). The court will not, upon the points raised in a special case, review the decision of magistrates as to the sufficiency of the evidence to prove the charge; but when, in a special case, the magistrates, after asking the advice of the court as to the points made before them, proceed to ask advice "as to what should be done in the premises," this brings the whole case before the court (p).

(1) R. v. Macclesfield Js., 2 L. T. N. S. 352, Q. B.

(m) In re Dillon, 11 I. C. L. R. 232.

(n) The poor of Westminster, &c. App., overseers of Battersea Resp. 6.

Jur. N. S. 100, Eng.

(0) Motterman, App. the Eastern R. C. Resp. 7 C. B. N. S. 58; Purkis v. Huxtable, 28 L. J. M. C. 221.

(p) Doyle, App., Morris Resp. 6. Ir. Jur. N. S. 60.

Amendment by court on appeal.] The Court of Queen's Bench in England has declined to exercise their power to amend an order under the 6th sec., where it would deprive the appellant of his power to appeal to the quarter sessions under the statute upon which the proceedings below were instituted (q).

It has been decided under this 6th section, that, on the hearing of an appeal, if the respondent does not appear, the appellant, in order to entitle him to the judgment of the court, must shew that the decision of the magistrates was wrong (r).

Costs.] In all cases of appeal under this act on informations, the court has power under the 6th section to award costs to the successful party, including cases in which the Crown is directly or indirectly a party to the information. Therefore, on appeal against a conviction on an information by an excise-officer, under the 4 & 5 Wm. IV. c. 85, s. 17, the court can award costs to the respondent, the excise-officer (s).

Where a conviction under a local act was quashed upon appeal under this act, the court ordered the party prosecuting to pay the costs (t).

Case may be sent back to be amended.] The court has power under section 7, if they think fit, to cause the case to be sent back for amendment, and it shall be amended accordingly, and judgment given upon the amended case.

Power of superior courts may be exercised by judge at chambers.] By section 8, the authority and jurisdiction by this act given to a superior court may be exercised by a judge sitting in chambers, and as well in vacation as in term time; and it has been held that a judge in chambers can grant an order upon justices to state a case under the provisions of this statute (u).

Practice.] In the argument of cases stated under this statute the same course is to be adopted as in law arguments; the junior counsel for the appellant opens the arguments; then the junior on the other side opens the respondent's case, and is fol

(q) Shackell v. West, 6 Jur. N. S. 95, Eng. S. C. 29 L. J. M. C. 45.

(r) Syred v. Caruthers, 27 L. J. M. C. 273; El., Bl. & El. 469.

(s) Moore v. Smith, 28 L. J. Q. B.

126.

(t) Venables v. Hardman, 4 Jur. N. S. 1108, Q. B; 28 L. J. M. C. 33. (u) Ex parte Smith, 27 L. J. M. C. 186.

lowed by his senior; the senior counsel for the appellant replies upon the whole case (v).

After decision justices may issue warrants.] After the decision of the superior courts, the justices, by section 9, in relation to whose determination the case has been stated, or any other J. P. exercising the same jurisdiction, shall have the same authority to enforce any conviction or order made by such superior court, as the justices who originally decided the case would have had to enforce his determination, if the same had not been appealed against. Accordingly it is enacted that

[After the decision of superior court, justices may issue warrants.] After the decision of the superior court in relation to any case stated for their opinion under this act, the justice or justices in relation to whose determination the case has been stated, or any other justice or justices of the peace exercising the same jurisdiction, shall have the same authority to enforce any conviction or order which may have been affirmed, amended, or made by such superior court, as the justice or justices who originally decided the case would have had to enforce his or their determination if the same had not been appealed against; and no action or proceeding whatsoever shall be commenced or had against the justice or justices for enforcing such conviction or order, by reason of any defect in the same respectively.

By section 10, no certiorari shall be required for the removal of any conviction, order, or other determination in relation to which a case is stated under this act.

Court may make rules.] By section 11, power is given to the superior courts of law to make and alter rules to regulate the practice and proceedings under this act (w).

Recognizances, how to be enforced.] By section 13, in all cases where the conditions in the recognizances shall not have been complied with, the justices who shall take the same, or any other justice, shall certify upon the back of the recognizance in what respect the conditions have not been observed, and transmit the same to the clerk of the peace of the county, &c., where such recognizance shall have been taken, to be proceeded upon

(v.) R. v. Brophy, 9 Ir. C. L. app. 11. See as to the practice in England on the hearing of the case, Ellis Kelly, 6 Eng. Jurist, N. S., 1119.

v.

(w) Up to the time of this work going to press, no rules have been published by the superior courts in Ireland in relation to this act.

in like manner as other recognizances forfeited at quarter sessions may now by law be enforced; and such certificate shall be deemed sufficient primâ faciê evidence of the said recognizance having been forfeited.

Appellant not to appeal to Q.S.] Finally, by section 14 it is enacted that any person who shall appeal under this act shall be taken to have abandoned his right to appeal to the quarter sessions, conclusively, to all intents and purposes.

Fees to be taken by petty sessions clerk.] The following is the table of fees given in the schedule to the act which the petty sessions clerk is entitled to demand under section 3 (x):—

For drawing Case and Copy, where the case does not exceed five folios of ninety words each

Where the Case exceeds five folios, then for every additional folio

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For the Recognizance to be taken in pursuance of the act
For every Enlargement or Renewal thereof

For Certificate of Refusal of Case

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CHAPTER XXI.

HABEAS CORPUS.

THE writ of habeas corpus ad subjiciendum (a) issues in criminal cases, and is deemed a prerogative writ, which the Queen may send to any place, she having a right to be informed of the state and condition of every prisoner, and for what reason confined (b). It is also, as regards the subject, deemed his writ of right, to which he is entitled ex debito justitiæ, and is in the nature of a writ of error to examine the legality of the commitment (c).

Duty of judges to issue the writ.] The obligation of judges to issue this writ, and of gaolers to act in obedience to it, is enforced in Ireland by the 21 & 22 Geo. III. c. 11 (Irish), commonly

(x) Vide post, chap. "Petty Sessions Clerk," and 21 & 22 Vic. c. 100, for fees payable to the clerk.

(a) So termed from the language of the writ, "to undergo and receive

all such things as the court shall consider of the party in that behalf."

(b) See Cro. Jac. 543, 2 Gab. C. L. 181.

(c) Bac. Ab. 4th vol. Hab. Corp. A.

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