The provision as to the transmission of the case within the three days cannot be waived (f). It has, however, been said, that when an appellant has done all that he can to comply with the statute, but through the act of the other party he has been prevented from fulfilling its conditions, there might probably be a relaxation of the rule in his favour (g); and where the respondent could not be found, it was held sufficient to serve on her solicitor, who appeared before the magistrates, the notice of appeal and copy of the case within three days, it appearing that they had afterwards come to her hands (h). Sunday is not excluded in counting the three days, and therefore where the decision of the justices took place on a Thursday, and the application to them to state a case was not made until the following Monday, it was held to be too late (i). Where the appellant received the case from the justices on Good Friday, and transmitted it to the proper Court on the following Wednesday, it was held that as the offices of the Court were closed from Friday until Wednesday, the appellant had transmitted the case as soon as it was possible to do so, and therefore had sufficiently complied with the requirements of the second section (k). If, after the expiration of the three days, the case remain in the appellant's hands, and he take it back to the justices, they have no power of amending it; and if they do so in fact, the appellant does not gain a further period of three days from the amendment for transmitting the case to the Court (1). The case is to be entered at the Crown Office for Entering case (f) Morgan v. Edwards, 5 H. & N. 415; 29 L. J., M. C. 108. (g) Woodhouse v. Woods, 29 L. J., M. C. 149. (h) Syred v. Carruthers, El. Bl. & El. 469; 27 L. J., M. C. 273. (i) Peacock v. The Queen, 27 L. J., C. P. 224; and see Rowberry v. Morgan, 9 Exch. 730; Mumford v. Hitchcock, 14 C. B., N. S. 361; 32 L. J., C. P. 168, and Wynne v. for hearing. Ronaldson, 12 L. T. 711; 13 W. R. 899. (k) Mayer v. Harding, L. R., 2 Q. B. 410; 16 L. T. 429. (1) The Gloucester Board of Health v. Chandler, 32 L. J., M. C. 66. Quære, whether the justices can amend the case within the three days after they have delivered it to the appellant? Id. See post, Amendment," p. 330. Delivery of copies of the case before argument. hearing at the request of either party without any order for a concilium eight clear days before the day on which it is set down for argument, and notice thereof is to be given forthwith to the opposite party (n). Every special case is to be divided into paragraphs, which as nearly as may be is to be confined to a distinct portion of the subject, and every paragraph is to be numbered consecutively (0). The party or solicitor entering the case for argument in the Crown paper, must, two days before the day appointed for argument, deliver two copies of the case for the use of the judges at the Crown Office. If they are not delivered the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default, and the party making default is not to be heard until he has paid for such copies or deposited at the Crown Office a sufficient sum to pay for the same. In default of both parties the case is to be struck out, unless otherwise ordered (p). Under the Judicature Act, 1873 (q), appeals from petty sessions under 20 & 21 Vict. c. 43, are heard and determined by divisional Courts of the High Court of Justice, and the determination of such appeals is final, where it is in a criminal cause or matter. For by section 47 of the Judicature Act, 1873 (r), no appeal shall lie "from any judgment of the High Court in any criminal cause or matter," save for error of law apparent upon the record (s). An appeal lies from a Divisional Court upon a matter not criminal; but the leave of the Divisional Court is necessary (t). All such appeals are entered, with other appeals (n) Rule 141, Crown Office Rules, 1886. (0) Rule 142. (p) Rules 143, 146. (q) 36 & 37 Vict. c. 66, s. 45. (s) See Mellor v. Denham, 5 Q. (t) Upon a summons to discon. tinue a nuisance, a special case was stated by the justices, and after the appeal came before the Divisional Court that Court refused to give leave to appeal to the Court of Appeal on the ground that it was a quasi-criminal proceeding. Lea Conservancy Board v. Tottenham Local Board, 64 L. T. 198. from inferior Courts, in one list by the officers of the Crown Office Department of the central office, and are heard by a divisional Court of the Queen's Bench Division (u). The practice of the Courts has been thus clearly stated Who to begin. by Lord Justice Bramwell (x): "The general rule is, that the appellant shall begin. An exception exists in the case of an appeal against a conviction. There the respondent begins, because the burthen of proof is on him; but here the burthen of proof is on the appellant, for here he has to make out that an offence was committed, the justices having held that there was no offence. He ought therefore to begin." ment. If the respondent does not appear, the appellant in order The arguto obtain the judgment of the Court must show that the decision of the justices was wrong (y). Although the evidence is set forth in the case, yet the superior Court does not put itself in the position of the justices in deciding on its weight or sufficiency, but accepts their finding upon facts within their jurisdiction as conclusive, whatever may be the opinion of the Court itself as to the value of the evidence (z). The superior Court in such a case has only to see whether the determination is erroneous "in point of law" (a). The main question decided in the case, namely, whether an offence has or has not been committed within the statute, would be subject to review as involving a question of law, but the subordinate facts leading up to it would be left entirely to the decision of the justices. The circumstances which lead to the conclusion of law are for the justices; it is for the superior Court to say whether they are sufficient to warrant (u) Ord. LVIX. r. 4, and see Donovan v. Brown, 48 L. J., Ex. D. 456. (x) Ellis v. Kelly, 30 L. J., M. C. 35, in which case the justices had dismissed an information for falsely pretending to be a physician under 21 & 22 Vict. c. 90. (y) Syred v. Curruthers, El. Bl. & El. 469; 27 L. J., M. C. 273. (z) Cornwell v. Sanders, 3 B. & S. 206; 32 L. J., M. C. 6, dissentiente Wightman, J. (a) See Taylor v. Oram, 1 H. & C. 370; 31 L. J., M. C. 252. the conclusion (b). The justices have no right to send a statement of facts, and ask an opinion on them, except only so far as they raise a point of law (c). The Court will hear and determine questions of law arising on the facts stated by justices, although they were not taken before the justices, or expressly reserved for the consideration of the Court (d). Justices have no right to be heard in support of their decision upon the argument of a case stated by them for the opinion of the Court under s. 33 of the Summary Jurisdiction Act, 1879 (e). The Divisional Court has no power under 20 & 21 Vict. c. 43, s. 6, to reduce a penalty on a case stated by justices (ƒ). Amendment. By the 6th section, the Divisional Court has power to amend "the determination in respect of which the case has been stated, or remit the matter to the justices ;" and where an order had been made by justices under a wrong section of a statute, the Court considered that they had power to draw it up under the right section, but declined to do so, and remitted the case to the justices for rehearing, in order not to deprive the appellant of his appeal to the Quarter Sessions, which was given by the same act (g). In vacation time, where the matter is urgent, the case may be sent back for amendment by order of a judge at chambers (h). (b) See R. v. Raffles, 45 E. J., M. C. 61; and per Wightman, J., Belasis v. Hannant, 31 L. J., M. C. 228. (c) Per Crompton, J., Id. (d) Knight v. Halliwell, L. R., 9 Q. B. 412; 43 L. J., M. C. 113. Before this case, it was held that the Court had no power to give an opinion on any question not submitted by the magistrates for the opinion of the Court, although the parties might desire and ask for judgment upon it (Overseers of St. James v. Overseers of St. Mary, 29 L. J., M. C. 26); and that the ap pellant would not be allowed to take objections which were not raised before the justices (Purkis v. Huxtable, 28 L. J., M. C. 221); but the rule appeared to be different as to the respondent. Topping v. Keysell, 33 L. J., C. P. 229; Stancliffe v. Clark, 7 Ex. 439. (e) Smith v. Butler, 16 Q. B. D. 349. (f) Evans v. Hemingway, 52 J. P. 134. (g) Shackell v. West, 29 L. J., M. C. 45. (h) Rules 60 and 80 of Crown Office Rules, 1886. The Court as a rule will not entertain a motion to send a case back to be amended before the case comes on for argument (i). The costs are in the discretion of the Court, but, as a Costs. general rule, will be given to the successful party (k). Costs may be awarded for or against the Crown, whether directly or indirectly a party to the information (1). The unsuccessful party generally pays costs, although he may have argued merely in support of the decision of the magistrate (m). But where it appeared that the justices had erroneously adjudged forfeiture of a beerhouse licence in addition to a penalty, the Court, while upholding the conviction itself, refused to order the payment of costs by the appellant, on the ground that if the conviction had been drawn up containing such an adjudication it would have been quashed (n). The successful party should ask for costs immediately after the Court have given judgment in his favour (0). It is not usual to allow costs against a respondent who does not appear (p). Costs are granted even though the case be struck out on account of the failure of appellant to transmit the case within three days (q). Where the case was remitted to the justices for an amended statement, but not returned within the proper time, and therefore abandoned; it was held that the case (i) Christie v. St. Luke, Chelsea, 8 El. & Bl. 992; 27 L. J., M. C. 153. Where justices in a stated omitted to set out a material document, which, as appeared by affidavit was in evidence before them, the Court sent back the case to them for amendment, on motion, before the case came on for argument. Yorkshire Tire and Axle Co. v. Rotheram Local Board of Health, 4 C. B., N. S. 362; 27 L. J., C. P. 235. (k) By Rule 301 of the Crown Office Rules, 1886, Order 57 (costs) of the Rules of the Supreme Court, 1883, as far as it is applicable, is to apply to all criminal proceedings on the Crown side. (1) Moore v. Smith, El. & El. 597; 28 L. J., M. C. 156; see as to the Crown's non-liability to costs in general, R. v. Beadle, 7 E. & B. 492; 26 L. J., M. C. 111. (m) Venables v. Hardman, 1 El. & El. 79; 28 L. J., M. C. 33; Nicholls v. Hall, 42 L. J., M. C. 105; Copley v. Burton, L. R., 5 C. P. 489; 39 L. J., M. C. 141. (n) Cross v. Watts, 13 C. B., N. S. 239; 32 L. J., M. C. 73. (o) Budenburg v. Roberts, L. R., 2 C. P. 292; Cook v. Montague, 28 L. T. 494; 21 W, R. 670. (p) Smith v. Butler, 16 Q. B. D. 349; 34 W. R. 417; 50 J. P. 260. (q) G. N. R. v. Inett, 2 Q. B. D. 284; 46 L. J., M. C. 237. |