CHAPTER III. OF APPEAL TO THE SESSIONS. 1. In what Cases Appeal lies 282 3. Time and Place of Appeal2. Notice and Recognizance . 287 the Hearing, Costs, &c. 297 How authorized. Must be expressly given. SECT. 1.—Of Appeal to the Sessions, when it lies (a). 1. How authorized. 282 3. Suspension of Execution by 2821 Appeal 285 2. Must be expressly given. A right of appeal must be given by express enactment, and cannot be extended by an equitable construction to cases not distinctly enumerated (d). The right of appeal is now somewhat enlarged by the Summary Jurisdiction Act, 1879 (e), which enacts that If a (a) The justices, as we have seen, ought to return the conviction to the sessions, and this whether an appeal be given in the particular case or not; ante, p. 237. magistrate, after receiving due notice of appeal, neglects to return the conviction, whereby the party is prevented from prosecuting his appeal, he is liable in an action for the special damage; Prosser v. Hyde, 1 T. R. 414. When an appeal is the only remedy and replevin does not lie; The Mersey Docks Company v. Cameron, 9 C. B., N. S. 812; 30 L. J., M. C. 185, 195; R. v. Bradshaw, 29 Id. 176. A party is not bound to appeal against a rate where, in pursuance of any act, whether past or future, any person is adjudged by a conviction or order of a Court of summary jurisdiction to be imprisoned without the option of a fine, either as a punishment for an offence, or for failing to do, or to abstain from doing, any act required to be done or left undone, and such person is not otherwise authorized to appeal to a Court of general or quarter sessions, and did not plead guilty or admit the truth of the information or complaint, he may, notwithstanding anything in the said act, appeal against such conviction. It is provided that such right of appeal shall not apply where the imprisonment is adjudged for failure to comply with an order for the payment of money, for the finding of sureties, for the entering into any recognizance, or for the giving of any security. It will be noticed that this general right of appeal is only against a sentence of imprisonment. The right of appeal given by special acts generally goes much further (f). An appeal lies in almost every case from a conviction in the metropolis (g). Where a person charged before a Court of summary jurisdiction with an indictable offence under s. 12 of the Summary Jurisdiction Act, 1879, consents to be dealt with summarily and is thereupon convicted, he has no right of appeal to quarter sessions under s. 19 of that act which gives a right of appeal from convictions by a Court of summary jurisdiction "in pursuance of any act whether past or future" (h). There is no appeal against the dismissal of an information or complaint (¿). As a right of appeal cannot be extended by equitable construction (k), so the operation of a general clause in an (f) See s. 10 of Prevention of Cruelty to Children Act, 1889; s. 7 of Public Health Amendment Act, 1890; and s. 125 of Public Health (London) Act, 1891. (g) 2 & 3 Vict. c. 71, s. 50. (h) R. v. JJ. London, [1892] 1 Q. B. 664. (i) R. v. JJ. London, 25 Q. B. D. 357; 59 L. J., M. C. 146; Payne v. JJ. Uxbridge, 45 J. P. 327, 420. (k) R. v. Hanson, 4 B. & A. 519, in which Abbott, C. J., said, “although a certiorari lies unless expressly taken away, yet an appeal does not lie unless expressly given act of parliament, which gives the right of appeal, cannot be excluded by inference only, without some positive enactment in the statute on the matter in question. Thus, a clause in a private Inclosure Act declared that no item or charge in the account of the commissioners should be binding on the parties concerned, unless the same should have been duly allowed by a justice of the peace; and by a subsequent clause an appeal was given to the party grieved by anything done in pursuance of that or the General Inclosure Act, "other than and except such determinations, as were by that or the General Inclosure Act declared to be binding, final, and conclusive." It was argued against the right of appeal, that although the clause relating to the accounts of the commissioners did not expressly state that they were to be binding and conclusive when allowed by a justice, yet that it must be so inferred; for to say, that the accounts shall not be binding until allowed, is in effect saying, that when allowed they shall be binding. But the Court held, that the words "binding, final, and conclusive," in the excepting part of the appeal clause, must be confined to those proceedings which were made binding, final, and conclusive by some affirmative declaration in the statute; and that there being no such declaration in the present instance, the appeal was not taken away (l). It appears, however, that if an order of commitment be excepted out of the appeal clause, a conviction and commitment comprised in one instrument cannot be made the subject of appeal. Under the Highway Act (27 & 28 Vict. c. 101), s. 21, when any highway board consider any highways unneces by statute;" and see R. v. Bedwell, 4 El. & Bl. 213; 24 L. J., M. C. 17. Some statutes limit the appeal according to the amount of penalty imposed, and in such cases, in order to see whether an appeal lies, the amount must be estimated exclusive of costs; R. v. JJ. Warwicksh., 6 E. & B. 837; 25 L. J., M. C. 119; and see Ricardo v. The Maiden head Board of Health, 2 H. & N. 257; 27 L. J, M. C. 73. (1) R. v. JJ. Cumberland, 1 B. & C. 64; R. v. Bedwell, 4 El. & Bl. 213; 24 L. J., M. C. 17, S. C.; and as to the granting of a rule to hear an appeal, see R. v. JJ. Buckinghamsh., 4 El. & Bl. 259; Re Blues, 5 El. & Bl. 291; 24 L. J., M. C. 138. sary for public use, they may direct the district surveyor to apply to two justices to review the same, and thereupon "the like proceedings shall be had as where application is made under the Highway Act, 1835, to procure the stopping up of a highway;" and this has been held to give an appeal against the certificate, or order of the justices declaring it to be unnecessary (m). The question whether execution is suspended by an Suspension of execution by appeal mainly depends upon the statute under which the appeal. conviction or order is made. In some cases execution is expressly stayed pending the appeal, in others it is stayed on certain conditions; in some few cases, where no such express terms are found in the act, it may be right to allow execution to go notwithstanding the appeal, in order to give full effect to the intention of the legislature; but, as it has been said, "in the vast majority of cases it would be exceedingly improper in the justice to grant a warrant after the notice and recognizance, and before the hearing of the appeal, or before the time for hearing it has expired; and acting from a corrupt motive, he might be liable to an action on the case for maliciously granting it" (n). On the occasion which led to these observations, it was decided by the Court of Queen's Bench that the jurisdiction of a magistrate under 7 & 8 Vict. c. 101, s. 3, at any time after the expiration of one month from the making of an order for the maintenance of a bastard child, to grant a warrant against the putative father for the purpose of enforcing payment under the order, was not suspended by an appeal to the quarter sessions by the putative father against the order, and the confirmation of the order by the sessions subject to a special case. Lord Campbell, C. J., in the course of delivering his judgment, said, "There is no universal juridical maxim or rule that an (m) R. v. JJ. Surrey, L. R., 5 Q. B. 87; 39 L. J., M. C. 49. (n) Per Lord Campbell, C. J.. in Kendall v. Wilkinson, 4 El. & Bl. 680; 24 L J., M. C. 89, 92; 1 Jur. 538, S. C.; see also Ex parte appeal or writ of error is a stay of execution pending the appeal or writ of error. In our Courts of Equity an appeal is no stay of execution without a special order for that purpose, as has been lately authoritatively declared in the case of Hope v. Hope (o), by the present Lord Chancellor, for the information of the tribunals of France. According to the common law of England a writ of error, even when allowed and returnable, is no supersedeas of execution in criminal cases, where there has been sentence and imprisonment. If the party convicted was in prison under his sentence when the writ of error was sued, he continued in prison pending the writ of error; and if he was not, he might still be taken and imprisoned pending the writ of error. In The King v. Brooke (2 T. R. 196), this Court intimated an opinion that a commitment under the Vagrant Act was lawful pending an appeal given by the statute against the conviction. Buller, J., observes, 'It is said that it is strange that the party should suffer the punishment while the appeal is pending, but we are to consider it like a case of a writ of error, which does not suspend the execution of a judgment which it is brought to reverse.' The common law upon the subject is illustrated by Lord Lyndhurst's Act, 16 & 17 Vict. c. 32, for allowing, on certain conditions, a stay of execution of judgment for misdemeanors after a writ of error (p). From the 27th section of the stat. 11 & 12 Vict. c. 43, it might be argued, that pending an appeal justices are not at liberty to grant a warrant in execution, as they are thereby expressly authorized to grant the warrant after the appeal is determined; but section 35 enacts that the act shall not extend to any complaints, orders or warrants in matters of bastardy made against the putative father of any bastard child, with certain exceptions, which do not include the warrant in question " (q). (0) 23 L. J., Ch. 682. (p) See, under 8 & 9 Vict. c. 68, Dugdale v. The Queen, 24 L. J., M. C. 55. (g) See post, "Certiorari," as to the suspension of the issuing of a |