8. 11, the practice is to give costs as between party and party. Clarendon v. St James, Westminster, 21 L. J. (N.S.) M. C. 213; 15 J. P. 340.

Note to

Sect. 3.

The following report of the case of Garnsworthy v. Pyne Death of is extracted from the 34th volume of the Justice of the Peace, one of the parties page 310:to the Garnsworthy, app., v. Pyne, resp. Appeal.-Case stated proceeding. by justices.-Death of respondent; 20 & 21 Vict. c. 43. This was a case stated under 20 & 21 Vict. c. 43. The prosecutor was a harbour-master, and the defendant was a captain of a vessel who was convicted of an offence against the Harbour Clauses Act. A case having been demanded under 20 & 21 Vict. c. 43, before it was stated the prosecutor had died, and the appellant delivered a copy of the case to the respondent's successor in the office of harbour-master, and who handed it to the dock company's solicitor, who instructed counsel to defend the decision of the justices.

Counsel for the appellant objected to the respondent appearing in the case unless the dock company were treated as the respondent instead of the present harbour-master.

Counsel for the respondent said he could not undertake to put the dock company in the position of the respondent unless the appellant's recognizance for costs should be deemed to apply to the respondent's costs, and if this arrangement was not made he asked the case to be postponed.

Blackburn, J.-At present we cannot recognize any respondent, for the real respondent is dead. And yet we cannot see why the appellant is to be deprived of his right to appeal against the decision merely on that account. The terms offered by Sir J. Karslake are fair and equitable, but if they are not acceded to, the court will, nevertheless, go on with the case as if there was no respondent who appeared.

The case was ultimately postponed by desire of both parties.

may refuse a

they think

cation

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

Note to Sect. 4.

Refusal to state case.

An application for a rule calling upon justices to show cause why a case should not be stated under 20 & 21 Vict. c. 43, should be made to the Queen's Bench Division of the High Court of Appeal, and not to the divisional court of appeal. Re Ellershaw, JJ. of Leeds, Ex parte Longbottom, L. R. 1 Q. B. D. 481; 40 J. P. 342.

In the following case it was held that the justices properly refused to state a case under the Act. A. was committed by the justices for deserting his wife and family. It appeared that they had been known as man and wife for twenty years, and their daughter, aged 37, said she had always looked upon them as married; the man had compromised a previous charge of the same nature by agreeing to pay five shillings a week. In 1858 he was married to another woman, was charged with bigamy and discharged. On the hearing of the charge for desertion it was contended that there was no proof of the defendant's marriage; it was then proposed to call the woman, but he objected to this on the ground that her evidence was not admissible. The justices, however, committed him, and refused to grant a case; and in so refusing as above stated, the court held that they had well determined. Reg. v. Yeomans, 1 L. T. (N.s.) 369; 24 J. P. 150. The remarks of Crompton, J., with reference to the above case, deserve attention:-"I think," he said, "the justices would have done wrong if they had stated a case; they are only to do so when there are disputed questions of law; here the question is one of fact." The justices should therefore bear in mind, when asked to state a case, that they are only bound to state it when it is alleged that their determination is erroneous in point of law, and that an error in a matter of fact is no ground for a case being stated under the Act. They should also remember that they are not bound to grant a case on a point of law if they should be of opinion that the application is frivolous.

Where on a summons before justices to enforce payment of a special district rate under a Local Improvement Act, incorporating the Public Health Act, 11 & 12 Vict. c. 63, by section 135 of which an appeal to the quarter sessions against the rate is given, it was objected that the party rated received no benefit from the works for which the rate was made; the justices, however, made an order for the party to pay the sum demanded, and refused to state a case under section 2; and on a rule being moved for to compel them to state a case, it was held that they could not be required to do so. Reg. v. Newman and others, 29 L. J. (N.s.) M. C. 117; 6 Jur. (N.s.) 293.

Where the

refuse, the

Queen's

by rule

case to be

5. Where the justice or justices shall refuse to Sect. 5. state a case as aforesaid, it shall be lawful for the appellant to apply to the Court of Queen's Bench justices upon an affidavit of the facts for a rule calling upon Court of such justice or justices, and also upon the respon- Bench may dent, to show cause why such case should not be order a stated; and the said court may make the same stated. 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 ordering them to state Rule to a special case for the opinion of the court, where the objec- state case. tion was that they had improperly received evidence. To enable the court to interfere it must appear that the determination of the justices was wrong in point of law, as it is confined in its consideration of the case to the determination of the justices. Reg. v. Macclesfield JJ., 2 L. T. (N.S.)

352.

An application for a rule under 20 & 21 Vict. c. 43, calling on justices to state a case for the opinion of the superior court, as already stated, is not an application within the 45th section of the Judicature Act. Ex parte Longbottom, L. R.

1 Q. B. D. 481; 40 J. P. 342.

court to

the ques

the case.

6. The court to which a case is transmitted under Superior this Act shall hear and determine the question or determine questions of law arising thereon, and shall thereupon tions on 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 the court may seem fit; and all such orders shall final.

Its deci

sions to be

Sect. 6. 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.

Right to

begin.

The practice in the Court of Queen's Bench is for the party in support of a conviction to begin, unless the court think it more convenient in a particular case that the appellant should begin. Crick v. Crick, 22 J. P. 368. The same rule was adopted by the Court of Exchequer in a case stated for the opinion of that court under 20 & 21 Vict. c. 43. Reg. v. Bennett, 32 L. T. 26; 23 J. P. 198. But where, under 20 & 21 Vict. c. 43, the appellant insists that the information or complaint has been wrongfully dismissed by the justices, the appellant is entitled to begin the argument. Jones v. Taylor, 1 E. & E. 20, confirmed by Ellis v. Kelly, 6 Exch. Rep. 222; 30 L. J. (N.S.) M. C. 35; 6 Jur. (N.s.) 1119; 3 L. T. (N.S.) 332; 25 J. P. 279. This is now the rule, and in the case of the North Eastern Railway Company, app, Scarborough, resp., 9 B. & S. 1009, it was allowed on the argument of a special case stated under 12 & 13 Vict. c. 45, or 20 & 21 Vict. c. 43, that the appellant begins; reversing the practice recognized by Hilton and Watherfield, app., Bowes, resp., 7 B. & S. 223, and it is in accordance with that adopted by the Court of Common Pleas upon appeals under 20 & 21 Vict. c. 43, namely, to adhere to the practice prevailing in that court in appeals from revising barristers and from county courts, of allowing the appellant to begin. Gardner, app., Whitford, resp., 4 C. B. (N.s.) 665. On an appeal against a conviction the respondent begins, because the onus lies on the party seeking to sustain the conviction; but this reason does not apply when the magistrates have dismissed the complaint. In such a case the court holds that the party who appears in support of the complaint must begin.

On a special case stated for the opinion of a superior court, pursuant to 12 & 13 Vict. c. 45, s. 11, it is an established practice that the respondent begins. Hansom v. Epsom Local Board, 2 Jur. (N.s.) 38 n; 20 J. P. 340. If neither the appellant nor the respondent appears, the court will not, on the application of the justices, entertain the case, for the matter would not be judicially before the court in the absence of both the parties to the appeal, and until they pre

sent themselves the court cannot entertatn it. Walters, app., Note to Williams, resp., 9 C. B. (N.S.) 179.

ap

But by the practice of the Court of Common Pleas (unlike that of the court of Queen's Bench and Exchequer), the pellant, upon the hearing of a case stated under 12 & 13 Vict. c. 45, s. 11, is entitled to begin. Sheppard v. Bradford, 33 L. J. M. C. 182; 10 L. T. (N.s.) 42; 10 Jur. (N.S.) 799; 16 C. B. (N.s.) 369.

Upon the argument of a case stated by the justices under section 2, the appellant will not be allowed to take objections which were not raised before the justices. Therefore where

the appellant was charged with knowingly permitting persons of bad character to meet in his house, and the only defence suggested before the justices was, that the persons were there only for the purpose of obtaining refreshment, and therefore that the appellant Could not be convicted, the court of Queen's Bench refused to hear an objection that there was no evidence that the appellant knew that the persons in his house were bad characters. Purkis v. Huxtable, 28 L. J. (N.S.) M. C. 221; 23 J. P. 293; E. & E. 780.

Sect. 6.

Practice.

This section provides that the justices are not to be liable Costs. to any costs in respect or by reason of an appeal against their determination. Therefore, where upon an appeal under the 20 & 21 Vict. c. 43, against a conviction under a local turnpike act, for illegally taking toll, the conviction was quashed, it was held that the party prosecuting must pay the costs. Venables v. Hardman, 28 L. J. (N.s.) M. C. 33; 4 Jur. (N.S.) 1108. The court may also make an order for costs for or against the crown in an appeal against an order of justices under this Act. Where upon an appeal against a conviction apon the information of an officer of excise, prosecuting for the crown by order of the commissioners of inland revenue, the court had held the conviction right, and given the costs of the appeal to the respondent, it was held that such order was right, and a rule nisi to amend a rule of court, by striking out so much of it as ordered the costs of the appeal to be paid by the appellant, was discharged. The meaning of the legislature, Lord Campbell, C. J., said, is clear. The 4th section provides that the justice or justices shall not refuse to state a case where the application for that purpose is made to them by the attorney-general, and the 6th section gives power to the superior courts to make such order as to costs as the court may think fit. This language he said evidently contemplates proceedings by which the crown is affected. Moore V. Smith, 28 L. J. (N.S.) M. C. 126; 32 L. T. 314; 23 J. P. 133. It has been decided that the court have power under section 6 of this Act to draw up an order under section 24 of