Sect. 32.

that any appeal from the conviction or order of a court of summary jurisdiction shall be made to the next court of general or quarter sessions, such appeal may be made to the next practicable court of general or quarter sessions having jurisdiction in the county borough or place for which the court of summary jurisdiction acted, and held not less than fifteen days after the day on which the decision was given upon which the conviction or order appealed against was founded.

See Shingler v. Smith, ante, p. 176, and notes, pp. 176 et seq., as to the effect of the repeal (by the S. J. Act, 1884) of the first part of this section.

33. Appeal from court of summary jurisdiction by special case.]-(1) Any person aggrieved who desires to question a conviction, order, determination, or other proceeding of a court of summary jurisdiction, on the ground that it is erroneous in point of law, or is in excess of jurisdiction, may apply to the court to state a special case setting forth the facts of the case and the grounds on which the proceeding is questioned, and if the court decline to state the case, may apply to the High Court of Justice for an order requiring the case to be stated.

(2) The application shall be made and the case stated within such time and in such manner as may be from time to time directed by rules under this Act, and the case shall be heard and determined in manner prescribed by rules of court made in pursuance of the Supreme Court of Judicature Act, 1875 (38 & 39 Vict. c. 77), and the Acts amending the same; and, subject as aforesaid, the Summary Jurisdiction Act, 1857 (20 & 21 Vict. c. 43), shall, so far as it is applicable, apply to any special case stated under this section, as if it were stated under that Act:

Provided that nothing in this section shall prejudice the statement of any special case under that Act.

This section enables an aggrieved party to obtain the opinion of the High Court upon a question of law arising upon any matter coming before a court of summary jurisdiction, including questions of law that arise on the validity of sanitary rates (Sandgate Local Board v. Pledge, 14 Q. B. D. 730; 49 J. P. 342; 52 L. T. 546; 33 W. R. 565; 29 S. J. 385; distinguished in Sheffield Waterworks Co. v. Mayor, etc. of Sheffield, 50 J. P. 6; 34 W. R. 153;

55 L. J. M. C. 40), and other questions to which 20 & 21 Vict. c. 43, does not extend.

It will apply to questions relating to poor rates. See R. v. Lord Mayor of London and Brown, 52 J. P. 70 ; 57 L. T. (N.s.) 491; and 4th City Mutual Society v. East Ham, [1892] 1 Q. B. 661 56 J. P. 440. It does not apply to cases under the Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39). See s. 11 of that Act and Manders v Manders, [1897] 1 Q. B. 474; 61 J. P. 105; 66 L. J. Q. B. 296; but in Ruther v. Ruther, [1903] 2 K. B. 270; 67 J. P. 539, 72 L. J. K. B. 826, it was decided that an appeal lies by way of special case to the King's Bench Division from a committal under a warrant made on an information or complaint that the weekly payments are in arrears, by virtue of s. 9 of the S. J. (Married Women) Act, 1895.

In Diss Urban Sanitary Authority v. Aldrich, 41 J. P. 132; 46 L. J. M. C. 183, where application was made to justices under s. 305 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), for an order authorising an entry upon lands of a person who had refused such entry, and the justices, after hearing, had declined to make such an order, it was held that they had no power under 20 & 21 Vict. c. 43, s. 2, their decision not being the determination of a complaint within that section, and the application being one wholly within their discretion to grant or refuse.

The Court of Queen's Bench has held that a declining of jurisdiction on the part of justices could not be made the subject of a special case under 20 & 21 Vict. c. 43, because in such a case the justices had decided nothing (Wakefield Local Board v. West Riding Rail Co., L. R. 1 Q. B. 84; 30 J. P. 389, 628; 35 L. J. M. C. 69 ; 13 L. T. 590; 10 Cox C. C. 162; 12 Jur. 160).

Order LIX., r. 4, under the Judicature Act, 1881 (44 & 45 Vict. c. 68), is as follows: Every judge of the High Court of Justice for the time being shall be a judge to hear and determine appeals from inferior courts, under s. 45 of the principal Act (Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66). All such appeals (except Probate and Admiralty appeals from inferior courts and from justices, which shall be to a divisional court of the Probate, Divorce, and Admiralty Division), shall be entered in one list by the officers of the Crown Office department of the central office, and shall be heard by such divisional court of the Queen's Bench Division as the Lord Chief Justice shall from time to time direct. As to the law relating to special cases generally, see notes to 20 & 21 Vict. c. 43, post.

The "person aggrieved" must be a person whose legal rights are directly affected by the decision, and where W. was summoned for causing an obstruction in a certain street and convicted, and the freeholders of such street appealed against such conviction on the ground that they considered themselves persons aggrieved by such conviction, the court held that they were not persons aggrieved, and were not entitled to appeal (Drapers' Co. v. Haddon, 57 J. P. 200; 9 T. L. R. 36).

Sect. 33.

NOTE.

Sect. 33.

NOTE.

The S. J. Acts, 1857 and 1879, in so far as they provide for the stating of a special case by justices for the opinion of the High Court, are to be read together, and a case, though expressed to be stated under the later Act, is stated under both Acts. Quare, whether an unsuccessful prosecutor is a person aggrieved" within the meaning of this section (Stokes v. Mitcheson, [1902] 1 K. B. 857; 66 J. P. 615; 71 L. J. K. B. 677; 86 L. T. 767; 20 Cox C. C. 254).

66

In the case of the Deputies of the Freemen of the Borough of Leicester v. Lewitt, 57 J. P. 344; 62 L. J. M. C. 51; 68 L. T. 201, it was held that, as by the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 13, post, the words "a court of summary jurisdiction" include justices sitting under any Acts other than the S. J. Acts; the justices acting in this case under a private Act formed a court of summary jurisdiction from which an appeal lay by a case stated under this section; but justices sitting at special petty sessions to revise the list of jurors are not a court of summary jurisdiction, and have no power to state a case (Hagmaier v. Willesden Overseers, [1904] 2 K. B. 316; 68 J. P. 343; 73 L. J. K. B. 638; 20 T. L. R. 494).

The rule as to a special case is No. 18, S. J. Rules, 1886, post. See generally on the subject of a special case the notes to 20 & 21 Vict. c. 43, post.

34. Summary orders.]—(1) Where a power is given by any future Act to a court of summary jurisdiction of requiring any person to do or abstain from doing any act or thing other than the payment of money, or of requiring any act or thing to be done or left undone other than the payment of money, and no mode is prescribed of enforcing such requisition, the court may exercise such power by an order or orders, and may annex to any such order any conditions as to time or mode of action which the court may think just, and may suspend or rescind any such order on such undertaking being given or condition being performed as the court may think just, and generally may make such arrangement for carrying into effect such power as to the court seems meet.

(2) A person making default in complying with an order of a court of summary jurisdiction in relation to any matter arising under any future Act other than the payment of money, shall be punished in the prescribed manner, or if no punishment is prescribed, may in the discretion of the court be ordered to pay a sum (to be enforced as a civil debt recoverable summarily under this Act) not exceeding one pound for every day during which

he is in default, or to be imprisoned until he has remedied Sect. 34.

his default:

Provided that a person shall not, for non-compliance with the requisition of a court of summary jurisdiction, whether made by one or more orders, to do or abstain from doing any act or thing, be liable under this section to imprisonment for a period or periods amounting in the aggregate to more than two months, or to the payment of any sums exceeding in the aggregate twenty pounds.

See s. 35, post, and s. 6, ante, p. 126, as to recovery of civil debts summarily.

35. Recovery of civil debts in court of summary jurisdiction.] Any sum declared by this Act, or by any future Act, to be a civil debt, which is recoverable summarily, or in respect of the recovery of which jurisdiction is given by such Act to a court of summary jurisdiction, shall be deemed to be a sum for payment of which a court of summary jurisdiction has authority by law to make an order on complaint in pursuance of the Summary Jurisdiction Acts: Provided as follows:

(1) A warrant shall not be issued for apprehending any person for failing to appear to answer any such complaint; and

(2) An order made by a court of summary jurisdiction for the payment of any such civil debt as aforesaid or of any instalment thereof, or for the payment of any costs in the matter of any such complaint, whether ordered to be paid by the complainant or defendant, shall not, in default of distress or otherwise, be enforced by imprisonment, unless it be proved to the satisfaction of such court or of any other court of summary jurisdiction for the same county borough or place, that the person making default in payment of such civil debt instalment or costs either has, or has had since the date of the order, the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same, and in any such case the court shall have the same power of imprisonment as a county court would for the time being have under the Debtors Act, 1869

Sect. 35.

(32 & 33 Vict. c. 62), for default of payment if such debt had been recovered in that court, but shall not have any greater power.

Proof of the means of the person making default may be given in such manner as the court to whom application is made for the commitment to prison think just and for the purposes of such proof the person making default and any witnesses may be summoned and examined on oath according to the rules for the time being in force under this Act in relation to the summoning and examination of witnesses, or if no such rules are in force, to the rules for the like purpose made in pursuance of the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90).

See the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 5, post (Appendix).

As to county court procedure in relation to s. 5 of the Debtors Act; see Order XXV., rr. 25-56, set out at pp. 367-378 of the Yearly County Court Practice, 1906.

Under the Act of 1879, no rules as to summoning and examination of witnesses were issued, and the rules under the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), were made to apply under this section. Now, however, the S. J. Rules, 1886, deal with this subject, and rr. 19-29 give the provisions as to procedure under this section.

It may be mentioned that poor rates are not enforceable under this Act as civil debts (R. v. Price, ante, p. 53), but it is considered that general district rates would be so enforceable. See 44 J. P. 753, and 46 J. P. 717. Rates made under the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 161, are recoverable as poor rates, and are not therefore enforceable under this Act as civil debts. An order for maintenance of a pauper relation is only enforceable as a "civil debt" (Re Gamble, 63 J. P. 101).

The costs of conveyance to prison of defendant in default of payment would be included in the costs of plaintiff's enforcement of the order under r. 29 of the S. J. Rules, 1886, post, as if made under s. 5 of the Debtors Act, 1869. See 49 J. P. 765.

Costs ordered to be paid by any party on a complaint for sureties are not enforceable under this section as a civil debt, but are recoverable by distress under s. 18 of 11 & 12 Vict. c. 43, ante, and in default by imprisonment. This section (35) provides for recovery of money or costs payable on a complaint for payment of money only.

As to sub-s. (5) of s. 5 of the Debtors Act, 1869, it may be mentioned that a distress warrant may issue at any time before or during or after the imprisonment. A defendant may not be committed again for non-payment of the same debt on proof of ability but refusal to pay; but there may be a separate committal for each non-payment of each instalment when the debt is to be paid by instalments (Evans v. Wills, 40 J. P. 552; 45 L. J. Q. B.