Note to Sect. 2. society, and an order is thereupon made against the society, the society is substantially the appellant for the purposes of procuring a case to be stated under 20 & 21 Vict. c. 43; and therefore when, after the application for the case, the security Statement has resigned his post, and given the justices notice of withdrawal of the application, the society may nevertheless continue the proceedings, and obtain a rule ordering the case to be stated, in the event of a refusal by the justices.—Ibid. The section, it will be perceived, applies only to a case in which there has been "a hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary manner." Apparently, therefore, the statute is confined to cases which can be dealt with under 11 & 12 Vict. c. 43; but nevertheless in Frend v. Tolleshunt Knights, 28 L. J. (N.S.) M. C. 169; 5 Jur. (N.s.) 1080; 33 L. T. 89; 23 J. P. 677 (which related to the liability of the incumbent of a district church to be assessed to the poor rate in respect of the tithe rentcharge apportioned to his incumbency), a case was stated under 20 & 21 Vict. c. 43, s. 2, and the statute was treated as being applicable to cases of nonpayment of poor rates; it has, however, since been held that 20 & 21 Vict. c. 43, does not apply to a decision of justices, at a special sessions for hearing appeals against poor rates, upon an appeal against an assessment. Such a case should be stated under section 11 of 12 & 13 Vict. c. 45. Wheeler v. Brimington, 6 Jur. (N.s.) 698; 2 L. T. (N.S.) 171; 29 L. J. M. C. 175; 24 J. P. 261, 660. See also Sparrow v. Impington, ib. 176; 6 Jur. (N.s.) 953. It has also been held that an appeal under 20 & 21 Vict. c. 43, s. 2, is not the proper mode of proceeding when the justices refuse to enforce a highway rate. Walker v. Great Western Railway Company, 29 L. J. (N.S.) M. C. 107; 24 J. P. 262; 2 E. & E. 325. Where justices hear an information or complaint and dismiss it on the ground that they have no jurisdiction, and at the same time offer to state a case for the opinion of one of the superior courts, a rule will not be granted by the court desiring the justices to hear and determine the matter. In such an event the justices would have adjudicated, and the court cannot command them to decide in a particular manner a case in regard to which they have jurisdiction. Ex parte McLeod, 3 L. T. (N.s.) 700; 25 J. P. 84. It has been held that an appeal lay to a superior court under 20 & 21 Vict. c. 43, in a case coming within the General Highway Act, 5 & 6 Will. 4, c. 50, s. 44, which requires the justices to hear and determine any complaint made to them against the accounts, or the application of moneys of case. Note to Statement of case. received by the surveyor of the highways, and to make such order thereon as to them shall seem meet. Townsend, app., Read, resp., 10 C. B. (N.s.) 308; 4 L. T. (N.s.) 447; 30 L. J. (N.S.) M. C. 223. The justices, though not bound to grant a case if they are of opinion that the application is frivolous, ought nevertheless to do so when it is shown that the party applying for it was asserting a right, as a disputed right of way, and the proceed. ings arise out of the assertion of that right. The justices are not bound to state a case under 20 & 21 Vict. c. 43, when the application discloses no point on which a case ought to be granted: per Mellor, J., Rēg. v. Rutlandshire JJ., 13 L. T. (N.S.) 722. The power of appeal to the quarter sessions given by 20 & 21 Vict. c. 83 (Lord Campbell's Act), does not take away the jurisdiction of the magistrate, under 20 & 21 Vict. c. 43, to state a case under that Act for the opinion of one of the superior courts on a point of law arising under 20 & 21 Vict. c. 83. Steel v. Brannan, 41 L. J. M. C. 85; 26 L. T. (N.S.) 509. By the Metropolitan Building Act, 18 & 19 Vict. c. 123, s. 106, power to appeal to a superior court is given if either party is dissatisfied with the determination of the justice in respect of any point of law; and it has been held that the power to state a case under 20 & 21 Vict. c. 43, is not thereby taken away. Power v. Wigmore, 27 L. T. (N.S.) 148. Though section 108 of 32 & 33 Vict. c. 70 (Contagious Diseases (Animals) Act), gives a power of appealing from the justices to the quarter sessions, it does not deprive a party of the right to have a case stated under 20 & 21 Vict. c. 43; and if the justices, having heard the case, determine that they have no jurisdiction the opinion of the high court will be properly applied for under 20 & 21 Vict. c. 43, instead of an application for a mandamus to the justices. Muir v. Hoare, 47 L. J. M. C. 17; 37 L. T. (N.s.) 315. In Potton v. Brown, 39 L. T. 363, there was a rule nisi to strike out a case stated by justices under 20 & 21 Vict. c. 43, on the ground that the application to the justices to state a case was verbal and not in writing. The court not being unanimous on this point desired the case itself to be argued, which was done, and then, by arrangement, it was ordered that the rule should drop, each party paying his own costs. With regard to the manner in which a case should be stated, it is to be observed that the court expects such cases to be submitted to the judges in a complete form. Ordinarily the court will refuse to send back a case for amendment under 11 & 12 Vict. c. 78, s. 4 (Reg. v. Holloway, 1 Den. C. C. R. 370; 3 N. S. C. 410; 18 L. J. M. C. 60); and cases for the consideration of the judges under that Act are not to be lengthy narratives of the facts. Reg. v. Stear, 13 Jur. 41. A case for the opinion of one of the superior courts, or of a judge of any such court, may be stated according to the following form : The Queen against against of This was an information [or, complaint] preferred by to wit. for that [here state shortly the substance of the information or complaint], and after hearing the parties and the evidence adduced by them, the undersigned, being two of Her Majesty's justices of the peace in and for the did thereupon [set out shortly the adjudication of the justices]. And the said alleging that he is dissatisfied with the said determination, as being erroneous in point of law, did, within three days thereafter, apply to us the said justices to state and sign a case, setting forth the facts and the grounds of such determination for the opinion thereon of the court of [or, a judge of the court of ]. Wherefore we the justices aforesaid, in compliance with the said request, and in pursuance of the statute in such case made and provided, do hereby state and sign the following case for the opinion of the said court [or of a judge of the said court]. CASE. At the hearing of the said information [or, complaint], and on the close of the informant's [or, complainant's case], the said [or, the attorney for the said ] was heard in answer to the matter of the said information [or, complaint]; and it being proved on the part of the said [the informant or complainant], that [here set out the facts which the justices deem to have been proved, with such objections, &c., of either party, as will raise the point intended to be submitted], we the said justices did adjudge and determine [set out shortly the adjudication of the justices]. QUESTION. The question upon which the opinion of the said court [or, judge of the said court] is desired is, whether we the said justices, upon the above statement of facts, came to a correct decision in point of law; and if not, what should be done in the premises? [Or, the questions of law arising upon the Note to Statement Note to Statement above statement of facts are The case must be signed by the justices; and the party applying for the case must enter into a recognizance as directed by statute 20 & 21 Vict. c. 43, s. 3. If the case be for the opinion of the court, it must be set down for argument, and copies, with the points intended to be argued, must be delivered to the judges, as in the ordinary practice upon a special case. But if it be for the opinion of a judge, the appellant must obtain an appointment for the hearing, and give notice thereof to the respondent, and, four clear days before the day appointed for the hearing, deliver at the judge's chambers a copy of the appeal. (See section 11, and note thereon, post.) With reference to the manner of stating a case under the Act, the observations of Lord Campbell, C. J., in Reg. v. Lee, are too important to be omitted:-The defendant, George Lee, kept a shop in Westgate Street, Gloucester, in which he sold sweets; and he had been convicted by two magistrates of Gloucester, of " following his usual calling on the Lord'sday," and fined five shillings. He appealed against the conviction, and a case was stated for the opinion of this court, under 20 & 21 Vict. c. 43. When the case was called on, no one appeared to support the conviction. Lord Campbell said that, in stating the case, he was sorry to observe that the magistrates had made an observation which was wholly extra-judicial. The observation was, "the magistrates have only to add that Lee's shop is in the most conspicuous part of the city, and that the continual Sunday trading therein, for which the defendant has been several times convicted, has been repeatedly made the subject of public complaint." Counsel for the appellant said he was instructed that an application had been made to the clerk to the magistrate to amend the case, but the only answer made was, that he should not alter a letter. Lord Campbell said he thought the court ought to animadvert upon such statements being introduced into the case. It was most improper, and he hoped it would not prejudice the minds of the court, though it could only have been introduced for that purpose, and he did not think the case was so stated that the court ought to take judicial knowledge of it. Note to Sect. 2. His lordship took the opportunity to express his great satisfaction at the manner in which cases had been stated under this Act of parliament. He approved of the Act, but he was at first afraid of the manner in which the cases would be Statement stated. In general, the cases had been well stated by the of case. magistrates' clerks; but, in this instance, it did not put the court into possession of the charge brought against the defendant, nor the grounds on which the conviction took place. The conviction must be quashed. case. The application to the justices to state a case must be made Application within three days after the hearing and determination of the to state information or complaint; and it has been held that, in computing those three days, Sunday, when it is the last of those days, is not to be excluded. Peacock v. Regina, 4 C. B. (N.S.) 264; 31 L. T. 101; 27 L. J. (N.s.) C. P. 224; 22 J. P. 403. On the hearing of the appeal, if the respondent do not appear, the appellant, in order to entitle him to the judgment of the court, must show that the decision of the justices was wrong. Syred v. Carruthers, 27 L. J. (N.s.) M. C. 273; 23 J. P.37; 1 E. B. & E. 469. The provision that the appellant shall within three days Transmisafter receiving the case transmit the same to the court, first sion of case. giving notice in writing of such appeal, with a copy of the case, to the other party, is a condition precedent to the right of appeal, and where such provision is not complied with the court has no jurisdiction. Woodhouse v. Wood, 1 L. T. (N.S.) 59; 23 J. P. 754, 759; 6 Jur. (N.S.). 421; 29 L. J. (N.S.) M. C. 149. Accordingly, where the appellant did not so transmit the case or serve the copy of it until after the expiration of such three days, the court, upon the application of the respondent, struck out the case, notwithstanding he had written letters to the appellant amounting to a waiver of the objection. Morgan v. Edwards, 5 H. & Ñ. 415; 6 Jur. (N.S.) 379; 24 J. P. 245. The provision that the case must be delivered to the respondent within a specified time is imperative, and cannot be waived. But semble, if the appellant endeavours to comply with the statute, e. g., by endeavouring to serve the respondent, but is prevented by his keeping out of the way, he may be let in to have his appeal. Morgan v. Edwards, supra. When a case is stated, the section is satisfied if the appellant, within three days of his obtaining the case from the justice, seeks to find the respondent, but cannot do so, and within such three days, gives notice to the attorney who represented the respondent before the justice, and after the expiration of the three days gives notice to the respondent, who does not object. Upon the production of an affidavit of these facts the court heard the appellant, |