(distinguishing Syred v Carruthers, supra), insufficient (Hill v. Wright Appendix. and Wilson, 60 J. P. 312). A case having been stated by justices under 20 & 21 Vict. c. 43, but the appellant not having complied with the conditions required by that Act, and there being consequently no jurisdiction to hear the case the respondent applied by way of motion to strike the case out of the paper, and the application was granted with costs against the appellant (Great Northern and London and North Western Joint Committee, apps. v. Inett, resp., 2 Q. B. D. 284; W. N. (1887), p. 124; 41 J. P. 710; 46 L. J. M. C. 237; 25 W. R. 584). But the respondent's costs were refused in a similar case (in which, however, the non-compliance with the statute was owing to the sudden death of one of the partners in the firm of solicitors acting for the appellant) by the Common Pleas Division of the High Court of Justice in the case of North British Rail. Co. v. Holme Cultram Local Board, M. S. Easter Sittings, 1879. A person convicted by justices applied for a case under 20 & 21 Vict. c. 43. The case was delivered by the justices' clerk to the appellant's attorney on December 31st, 1862, who gave notice of appeal and a copy to the appointed attorney; and on January 1st, 1863, sent by post the original to his London agent to be lodged in court. The London agent received it the next day, but did not lodge it till January 10th. Under these circumstances it was held that the case had not been duly transmitted to the court according to the statute. Sed quære, whether if the case is duly put into a regular course of transmission to the court, e.g., by post, and does not reach it within time in consequence of something over which the sender has no control, this is a compliance with the statute (Banks, app., Goodwin, resp., 27 J. P. 72; 3 B. & S. 548; 9 Jur. 891; 32 L. J. M. C. 87; 7 L. T. 740). An attorney in a country town, instructed by the London attorneys of the parties interested, attended to resist a summons before justices in the country town. The justices decided against the party, who being dissatisfied sent the justices a written notice demanding a case to be stated under 20 & 21 Vict. c. 43. The justices stated the case and sent it to the country agent on Thursday, who the next day forwarded it to the London attorneys. The latter deposited the case in the office of the court on the Monday following. Under this statement of circumstances the court held that the country agent had, presumably, authority to receive the case for the appellant; and that as the case had not been transmitted to the court within three days after it had been received, the provisions of s. 2 of 20 & 21 Vict. c. 43, had not been complied with, and consequently the appeal was struck out (Pennel! v. Uxbridge, 26 J. P. 87; 31 L. J. M. C. 92; 8 Jur. 99; 5 L. T. 685; 10 W. R. 319). Where justices have delivered a special case on the 13th of the month and the case is not transmitted or lodged at the Crown Office on the 16th of the month, the case will be struck out for non-compliance with this section (Aspinall v. Sutton, [1894] 2 Q. B. 349; 58 J. P. 622; 63 L. J. M. C. 205). The court will not order a case, stated under 20 & 21 Vict. c. 43, to be struck out because the intervention of days on which the offices of the court are closed has rendered it impossible for the appellant to transmit the case in time. (The case was received on Good Friday and transmitted to the proper court on the following Wednesday.) Nor is it a condition precedent that the case shall be transmitted in the time limited by the Act, the words of which are directory, and the court may, in its discretion, refuse to deprive a suitor of his right of appeal when he has done all in his power to comply with the statutory requirements. In this respect the cases of Morgan v. Edwards; Syred v. Carruthers; Woodhouse v. Woods; Peacock v. Regina; Pennell v. Uxbridge, supra; Fisher v. Cox, 16 L. T. 397, are distinguished (Mayer v. Harding, L. R. 2 Q. B. 410; 31 J. P. 376; 16 L. T. 429; 9 B. & S. 27). NOTE. Appendix. NOTE. After a case has been stated and signed by the justices under 20 & 21 Vict. c. 43, and delivered to the appellant, it becomes wholly inoperative, and no appeal can be had upon it, unless the appellant transmit it to the court within three days after he has received it from the justices. 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 to amend it; but if they do so in fact, the appellant does not thereby gain a further period of three days from the date of the amendment for transmitting the case to the court (Gloucester Local Board of Health v. Chandler, 27 J. P. 88; 32 L. J. M. C. 66; 7 L. T. 722). Rule 130 of the Crown Office Rules, 1906, imposes a further condition with reference to the transmission of the case to the High Court: "130. Demurrers and special cases shall be entered at the Crown Office for hearing at the request of either party eight clear days before the day on which they are set down for argument, and notice thereof shall be given forthwith to the opposite party." The necessity for the appellant to transmit the case to the High Court within three days of receiving it is not affected by the annulled Crown Office Rules, 1886, r. 141 (now rule 130, supra) (Phillips v. Jones, 57 J. P. 84). If notice of appeal, under 20 & 21 Vict. c. 43, be not given to the respondent before the case is lodged in court, the case will be struck out after it has been set down for hearing. It is not sufficient to post the notice of appeal to the respondent within the three days allowed for lodging the case, if it does not reach him until the day after the case is transmitted to the office (Ashdown v. Curtis, 26 J. P. 312; 31 L. J. M. C. 216; 6 L. T. 331; Jur. 511; 10 W. R. 667; Edwards v. Roberts, [1891] 1 Q. B. 312; 55 J. P. 439; 60 L. J. M. C. 6). In Price v. James, [1892] 2 Q. B. 428; 56 J. P. 471; 61 L. J. M. C. 203; 67 L. T. 543; 4Ì W. Ř. 57; 8 T. L. R. 682 (C.A.), it was held that when licensing justices state a special case for the opinion of the High Court, they are entitled to make the superintendent of police the respondent instead of themselves. 3. Security and notice to be given by the appellant.] The appellant, at the time of making such application, and before a case shall be stated and delivered to him by the justice or justices, shall in every instance enter into a recognizance before such justice or justices, or any one or more of them, or any other justice exercising the same jurisdiction, with or without surety or sureties, and in such sum as to the justice or justices shall seem meet, conditioned to prosecute without delay such appeal, and to submit to the judgment of the superior court, and pay such costs as may be awarded by the same; and the appellant shall at the same time, and before he shall be entitled to have the case delivered to him, pay to the clerk to the said justice or justices his fees for and in respect of the case and recognizances, and any other fees to which such clerk shall be entitled; which fees, except such as are already provided for by law, shall be according to the Schedule to this Act annexed, marked (A), until the same shall be ascertained, appointed, and regulated in the manner prescribed by the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43, s. 30); and the appellant, if then in custody, shall be liberated upon the recognizance being further conditioned for his appearance before the same justice or justices, or, if that is impracticable, before some other justice or justices exercising the same jurisdiction who shall be Appendix, then sitting, within ten days after the judgment of the superior court shall have been given, to abide such judgment, unless the determination appealed against be reversed. Section 30 of 11 & 12 Vict. c. 43, is now repealed as to justices' clerks' fees by 40 & 41 Vict. c. 43, s. 8, post, which substitutes other provisions. When Recognizance to be Entered into.-On an appeal from a decision of justices under ss. 2, 3, the appellant may enter into the required recognizance at any time during the three days allowed for applying for a case; and he need not enter into it simultaneously with making the application (Chapman, app. v. Robinson, resp., 23 J. P. 228; 1 E. & E. 25; 28 L. J. M. C. 30; 32 L. T. 89; 5 Jur. 434). Although an appellant from a decision of justices under 20 & 21 Vict. c. 43, must apply for a case to be stated within three days specified in s. 2, it is not necessary for him to enter into the recognizances required by s. 3 simultaneously with his application for a case to be stated. It is sufficient if he do so between the time of applying for and stating the case (Stanhope, app. v. Thorsby, resp., L. R. 1 C. P. 423; 12 Jur. 374; 14 L. T. 332; 35 L. J. M. C. 182; 14 W. R. 651). Where a rule is moved calling upon the appellant to show cause why an appeal should not be struck out of the paper on the ground that he had not entered into his recognizance within three days, as required by s. 3, the affidavit upon which the motion is made should be entitled in the names of the parties, and not merely "for the Queen's Bench." If it be not, the court will discharge the rule as being irregular (Johnson v. Simpson, 23 J. P. 756, 775; 1 L. T. 60). A special case was applied for and refused by the magistrate; two or three days after the applicant entered into a recognizance. At a later date a rule for a mandamus to the magistrate to state and sign a case was made absolute. The magistrate accordingly stated and signed the case, but refused to deliver it to the applicant until fresh recognizances had been entered into, the applicant having become bankrupt and his surety having died before the rule had been made absolute :-Пeld, that as a security had already been given in accordance with s. 3 of this Act, the case must be delivered by the magistrate without further security being given (Rea v. Kettle; Ex parte Ellis, 59 J. P. 55 ; 74 L. J. K. B. 55). Costs. A successful appellant is entitled to his costs though the respondent does not appear to support the judgment of the justices (Shepherd v. Folland, 49 J. P. 165. See also 49 J. P. 40). Where in a case stated by justices under 20 & 21 Vict. c. 43, the respondent did not appear upon the argument, and the court decided in favour of the appellant, it was held, without laying down any general rule, that the appellants were entitled to the costs of the appeal Wednesbury, app. v. Stephenson, resp., 10 Jur. 151; 33 L. J. M. C. 111; 9 L. T. 731; 12 W. R. 314). Where on an appeal under 20 & 21 Vict. c. 43, against a conviction by justices, the court quashed the conviction, they held that the costs were to be paid by the party prosecuting (Venables v. Hardman, 1 E. & E. 79 ; 28 L. J. M. C. 33). A case having been stated by justices under 20 & 21 Vict. c. 43, and remitted to them for an amended statement, but not returned within the proper time, and therefore abandoned, it was held that the court still had jurisdiction to order the appellant to pay the respondent's costs (Crowther v. Boult, 13 Q. B. D. 680; 49 J. P. 145; 32 W. R. 150; and in South Dublin Union v. Jones, 12 L. R. Ir. 358, where a case stated under this statute was lodged, but no notice of the appeal given to the respondents, it was held that though the appeal could not be heard, costs could be given against the appellant). Appendix. In Luton Local Board of Health, apps. v. Davis, resp., 6 Jur. 580; 24 J. P. 276; 2 E. & E. 678; 29 L. J. M. C. 173; 2 L. T. 172, application was made to the court for justices' costs, owing to their having been obliged to state a case for the opinion of the court, and having been put thereby to great expense; but the court refused the application, observing that the justices were not obliged to state the case by means of barristers. The successful party in an appeal under 20 & 21 Vict. c. 43, if allowed costs by the court, is entitled to the costs of preparing and amending the case beyond the fees allowed to the justices' clerk by section 3 and schedule A.. post (Glover v. Booth, 31 L. J. M. C. 270; 9 Jur. 76; 2 B. & S. 807). In a case where upon appeal under 20 & 21 Vict. c. 43, a conviction was quashed upon an objection not brought to the notice of the convicting justices, the court refused costs to the appellant (Stainson, app., Browning, resp., 12 Jur. 262). The court will not entertain an application for costs of an appeal under 20 & 21 Vict. c. 43, in the term after that in which judgment is pronounced; and, semble, that the application for costs should be made immediately upon the disposal of the case by the court (Budenberg, app., Roberts, resp., L. R. 2 C. P. 292, BOVILL, C.J., observing that he saw no reason for departing from the wholesome rule in Carswell v. Cook, 12 C. B. (N.S.) 242). Three terms after a decision of justices was reversed with costs upon a case stated under 20 & 21 Vict. c. 43, the appellant applied for his costs, and it was held, that although the court had by section 6 a discretion over such costs at the disposal of an appeal, it should be exercised only in a strong case of vexation or oppression; and that the delay, without fraud, which had taken place effectually precluded it (Cook, app. v. Montague, resp., L. R. 7 Q. B. 418; 37 J. P. 292, 694; 26 L. T. 47; 41 L. J. M. C. 149; 20 W. R. 624; 21 W. R. 670; 28 L. T. 494). The statute is binding upon the Crown equally with private persons ; therefore, upon an appeal against a conviction upon the information of an officer of excise prosecuting for the Crown by order of the Commissioners of Inland Revenue for an offence under the Beerhouse Act, 1834 (4 & 5 Will. 4, c. 85, s. 17), the court, confirming the conviction, may order costs to be paid to the respondent, the excise officer (Moore, app. v. Aaron Smith, resp., 5 Jur. 892; 23 J. P. 133). In the case of Garnsworthy v. Pyne, 35 J. P. 21, where after notice of appeal the respondent died and the company, whose officer he was, continued the appeal, and instructed counsel to support the decision of justices, the court allowed the company to be heard on the understanding that they should be in the same situation as to costs as if they were the respondents. In the case of Southern Counties Deposit Bank v. Boaler, 59 J. P. 536 ; 11 T. L. R. 568, it was stated by the court that in the case of corporations it is the practice to accept the recognizances of some member of the body, usually a director. Recognizance.-It is to be observed that the security required by this section has to be by a recognizance; the 3rd sub-section of the 31st section of the S. J. Act, 1879, ante, p. 174, only applies to appeals to general or quarter sessions. Recognizances are not required from the London County Council, see London County Council (General Powers) Act, 1893 (56 & 57 Vict. c. ccxxi.). 4. Justices may refuse a case where they think the application frivolous.] If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the NOTE. appellant, sign and deliver to him a certificate of such refusal; Appendix. 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 attorney-general for England or Ireland, as the case may be. 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 (Ellershaw v. JJ. of Leeds; Ex parte Longbottom, 1 Q. B. D). 481; 40 J. P. 342; 45 L. J. M. C. 163), as the application to state a case is not an appeal from an inferior court within 8. 45 of the Judicature Act of 1873 (36 & 37 Vict. c. 66). Where justices dismissed a summons for assault for detaining at school a child for neglecting to learn home lessons, and refused a case on ground that the application was frivolous, it was held that as there was a point of law whether the detention was or was not legal, the justices were bound to state a case, and costs were given against them (R. v. Bradford JJ., 48 J. P. 149). 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 s. 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 s. 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. M. C. 117; 6 Jur. 293; 1 L. T. 294). The certificate of refusal should, after showing the jurisdiction of the justices. recite shortly the matter of the information or complaint; that the applicant was dissatisfied with the decision arrived at as being erroneous in point of law; the application in writing has been made within the prescribed time for a statement of a case; and that the justices certify that they are of opinion that the application was merely frivolous, etc. (following the words of s. 4); and should be signed by both justices. For cases where the justices refuse to state a case not on the ground that it is frivolous, but that their decision was purely on the facts, and that no point of law or question of jurisdiction was involved, see the opinion of the editors of the Justice of the Peace at 52 J. P. 253; and R. v. Bridge (1890), 24 Q. B. D. 609; 54 J. P. 629; 59 L. J. M. C. 49; 62 L. T. 297; 17 Cox C. C. 66. 5. Where the justices refuse, the Court of Queen's Bench may by rule order a case to be stated.] Where the justice or justices shall refuse to state a case as aforesaid, it shall be lawful for the appellant to apply to the Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also upon the respondent, to show cause why such case should not be stated; and the said court may make the same 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. As to the recognizance here mentioned, see note to s. 3. ante, 423, and the case of Rex v. Kettle, there cited. |