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son acting as such, may be resident in the kingdom, state, or settlement wherein such nominee shall be then living.”
$ 3. Provided always, that to every such certificate as aforesaid, Identity to be there shall be annexed an affidavit or solemn affirmation, made verified by affibefore any justice of the peace or magistrate in England or Scot- davit or affirmland respectively, or if in Ireland before one of the
barons of the ation before exchequer there, by the person or persons entitled to the said justices in Eng. annuity, or by the person applying to receive the same on his, land, and before her, or their behalf, that the matters contained in such certificate a baron in Ireare, to the best of his or her belief, true; and that the person land. described or certified therein, is the nominee or one of the nominees on whose life or lives the annuity whereof such half-yearly or other payment shall be claimed, doth depend.
Apothecary. See Physicians.
1. An appeal of murder or other felony, i. e. a prosecution against a supposed offender by the party's own private action; prosecuting also for the crown in respect of the offence against the public. 2 Haw. c. 23. § 1. Or,
2. More generally, the removal of a cause from an inferior court or judge to a superior; as from one or more justices to the quarter sessions, 1. Appeals of purder, kc, abolished by stat. 59 G. 3. 59 G. 3. c. 46.
This mode of prosecution, which had almost fallen entirely into Appeals of disuse, has been recently abolished by stat. 59 G. 3. c. 46., passed offences to cease 220 June 1819 ; which, after reciting, “ whereas appeals of mur
and determine. der, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by batrel in any suit, is a mode of trial unfit to be used ; and it is expedient that the same should be wholly abolished ;" enacts, "that from and after the passing of this act, all appeals of treason, murder, felony, or other offences, shall cease, determine, and become void; and that it shall not be lawful for any person or persons, at any time after the passing of this act, to commence, take, or sue appeal of treason, murder, felony, or other offence, against any other person or persons whomsoever, but that all such appeals shall, from henceforth, be utterly abolished ; any law, statute, or usage to the contrary in anywise notwithstanding."
$ 2.“ From and after the passing of this act, in any writ of right No tenant shall now depending, or which may hereafter be brought, instituted, or
be received to
wage battel, nor commenced, the tenant shall not be received to wage battel, nor
any trial be had
by battel in any shall issue be joined nor trial be had by battel in any writ of right; writ of right.
any law; custom, or usage to the contrary notwithstanding."
The last case of an appeal of murder was that of Ashford v. Thornton. In M. T. 58 G. 3., 1817, William Ashford, the eldest brother and heir-at-law of Mary Ashford, spinster, deceased, brought a writ of appeal against Abraham Thornton, for the niurder of his said sister, of which offence the defendant had been tried and acquitted at Warwick summer assizes preceding, under circumstances of strong suspicion (though not absolutely conclusive) of his having ravished and afterwards thrown her into a pit of water, where the body was very recently found. The appellie, upon being called upon to plead, pleaded not guilty; and I am ready to defend the same by my body:" and thereupon taking his glove off
, he threw it upon the floor of the court. The appellant afterwards delivered in a counterplea, to which there was a replication, a general demurrer, and joinder therein. After very long and elaborate arguments, the court of K. B. held that the appellee had a right to wage his battel, the appellant not having brought himself within any of the established cases which entitle him 10 decline the wager of battel ; namely, where the appellant is an infant, or a woman, or above sixty years of age, or where the appellee is taken with the mainour, or has broken prison, or where great and violent presumptions of guilt exist against the appellee, which admit of no denial or proof to the contrary. The appellee was atterwards discharged. Ashford v. Thornton, E. T. 1818, 1 B. & A. 405.
DE Appeals to tlje Duarter Sessions.
V. Of the Trial of Appeals, p.130-134.
Appeal not of common right but of special provision.
I. In what Cases an Appeal lics, An appeal from the proceedings of justices out of session to the court of sessions, is not a matter of common right, but of special provision. 1 M. &; S. 448.
Herein the remedy by appeal differs from that by certiorari ; not being, as the latter is, a common-law right for the purpose of obtaining the judgment of a superior tribunal, but a qualitied riglit given by special provision of statute. Accordingly, in R. v. Hanson, 4 B. & A.521., Abbott C. J. said, “the rule of law is, that although a certiorari lies, unless expressly taken away, yet an appeal does not lie, unless expressly given by statute.”
The privilege of appeal, which now usually accompanies the power of summary conviction given by statute, does not seem to have been introduced till after that mode of judicature had been in use for some time. The first mention of an appeal is found in the stat. 12 C. 2. c. 23. § 31., imposing duties on beer, ale, and other liquors, which, in case of the retusal of two justices to proceed upon complaint, authorizes the sub-commissioners of excise for the district to take cognizance of it, and gives an appeal from their judgment to the next quarter sessions. The same provision is repeated in the excise aci, 12 C. 2. c. 24. $45.
The next statute which allows an appeal in the case of a sum. mary conviction, is the conventicle act, 22 C. 2. c. 1.96. (repealed by 52 G. 3. c. 155.) It is worthy of remark, that the appeal provided by that statute is not to the justices in sessions, as is usual, but to a jury to be there summoned to try the facts. This is the only insiance of an appeal of that nature, in regard to summary convictions. In the game act, 22 & 23 C. 2. c. 25. (repea'e'l 1 & 2 W. 4. c. 32.), which immediately followed, and in all the other acts since that time, which give an appeal from the convic. tion of justices out of sessions, it is to the judgment of the justices in quarter sessions, without the intervention of a jury. Paley Conv. 268. 2d ed.
The right of appeal must be given by express enactment, and Must be given cannot be extended by an equitable construction to cases not by erpress endistinctly enumerated.
actment. Thus, in Relv. Justices of Surrey, 2 T. R. 50+., a question arose whether any appeal lay against a conviction by two justices, on the stat, 25 G. 3. c.72. 9. (which imposed a duty on cottons, &c.) for certain offences committed against that act, By the 33d section, it was enacted, (as is usual in any new act relating to the duties of excise) that all powers and authorities, rules, penalties, forfeitures, clauses, matters and things in and by the 12 C. 2. c. 27., (which is called the hereditary excise act), or by any other law now in force, relating to the revenue of the excise, or inland duties under the management of the commissioners of excise, are provided or established for securing, enforcing, managing, &c., mitigating or recovering, adjudging or ascertaining, recovering and paying the several duties thereby granted, shall be applied in and for the managing, mitigating, adjudging, ascertaining, recosering, and paying the several duties hereby granted, as fully and ettectually as if all and every the said powes, &c. were particularly repeated and again enacted in this act. The question came before the court, on a rule for a mandamus to the justices of Surrey in sessions, to receive an appeal against a con. viction made by two justices on the above statuie. contended in support of the application, that an appeal was virtually given by the 33d clause above mentioned, which, by reference, incorporates all the remedies given by any excise laws, and that the power of appeal, and of mitigating penalties, are given by some of the excise laws; on the other hand it was contended, that no appeal lies but where it is given by express words. With this latter opinion the court agreed, and accordingly gave judgment against the existence of the right of appeal. The fair construction of the clause in question, in 25 G. 3. c.72., was pronounced to be, that all the general powers and provisions given in acts
made in pari materiá, should be virtually incorporated into that act; but, that such provisions as are always considered as special provisions should not; and the power of appealing from the judgment of the justices, being of the latter description, did not attach without being expressly given. Paley Conv. 270. See also the case of R. v. Skone, 6 East, 514. R. v. Hanson, 4 B. & A. 519. post, tit. Ercise.
It remains to consider how clauses by which appeals are given, Construction of clause giving
are to be construed. It has been decided, that if an order of appeal. commitment be excepted out of the appeal clause, a conviction and
commitment comprised in one instrument cannot be made the Exception of or. subject of appeal. In R. v. The Justices of Staffordshire, 12 East, der of commil- 572. (Paley Conv. 274.. 2nd edit.), a rule nisi for a mandamus ment includes
was obtained, commanding the defendants to cause continuances conviction.
to be entered upon the appeal of Joseph Thompson, against a record of conviction of him as a hired servant to E. Sheldon, for having absented himself from the service of his master, without his consent, down to the next general quarter sessions to be holden for the county of Stafford, and at such sessions to hear and determine the matter of such appeal. The affidavits set out the instrument itself at large, viz. : County of Stafford, – To the constables, &c. and to the keeper of the house of correction at Stafford, in and for the said county. - Whereas Joseph Thompson, a hired servant to E. S. of the parish of Tipton, in the said county, collier, is this day brought before us, two of his majesty's justices of the peace for the said county, and is lawfully convicted, as well by the oath of the said E. S. as otherwise, of being his lawful hired servant, and of having absented himself from his service in the parish of T. &c., without his consent, before the expiration of the term of his contract to serve — These are therefore, in his majesty's name, to charge and command you the said constable to take and convey the said J. T. to the house of correction aforesaid, and deliver him to the keeper; and you the said keeper to receive the said J. T. into your custody, and safely him there keep two months from the date hereof. Given under our hands and seals, this 29th day of January 1810." It further appeared that Thompson gave notice of his intention to appeal against the conviction, and duly gave a recognizance, and entered his appeal at the sessions; but no conviction being returned by the magistrate, the appeal was dis. missed without trial. By stat. 6 G. 3. c. 25. $ 5. upon which the proceeding was founded, it is provided, " That, if any person shall think bimself aggrieved by such determination, order, or warrant of any justice as aforesaid, except an order of commitment, every such person may appeal to the next sessions, &c.” In support of the rule for a mandamus, it was contended, that a conviction and commitment, being distinct things, could not, in legal contemplation, be united by being blended in one instrument; and that the latter only being excepted out of the appeal-clause, by the designation of an order of commitment, an appeal ought to lie against the conviction, under the general terms of that clause; and that, unless an appeal lay to get rid of the conviction, the party grieved would be without redress; for, so long as the conviction remains in force, it is an answer to any action of trespass. But by Ld. Ellenborough C. J. — “It is not for us to say, whether it may be convenient and proper to provide a remedy
by appeal for a party grieved by a commitment in execution under this act ; we can only declare what the legislature have said in this case; and when, by excepting an order of commitment out of the appeal-clause, they have said, that there shall be no appeal against such an order, and when the commitment must, for this purpose, be taken to be one and the same thing with the conviction, we have no discretion left to exercise upon the subject; and it does not become us to scan the wisdom of the provision which the legislature has enacted.” And the rule was discharged.
But the operation of a general clause of appeal in a statute can. Operation of not be excluded by mere inference drawn from other clauses; there- general clause fore, in R. v. Justices of Cumberland, 1 B. & C. 64., it was held,
of appeal not
to be excluded that a clause in a private inclosure act, declaring that no item or by inference. charge in the accounts of the commissioners shall be binding to the parties concerned, or valid in law, unless the same shall have been duly allowed by a justice of peace in the manner therein pointed out, does not take away an appeal given by a subsequent clause “ to the party grieved by any thing done in pursuance of that or the general inclosure act, (other than and except such determinations as were by that or the general inclosure act declared to be binding, final, and conclusive,") the allowance of the accounts by a justice not falling within this exception.
In Rer v. Justices of Hants, 1 B. & Ad. 654., the question was, whether an appeal lay against a conviction, under the Turnpike Act, 4 G. 4. c.95. 87., in the penalty of 41s. for having taken too large a toll. The eighty-seventh section gives an appeal generally, except where the order, judgment, or determination of the justices is by that act declared to be final; provided always, that no appeal shall be allowed for any conviction for any penalty or forfeiture which shall not exceed 40s. It was argued against the right of appeal, that by this act the provisions of the former statute, 3 G. 4. c. 126., are kept in force, so far as they are not expressly repealed ; and that by the 143d section of the latter statute, it is provided, that if the penalty shall not exceed the sum of 201., and shall be more than 5l., the same shall be recoverable only by information before a justice of the peace, subject to appeal in manner thereinafter mentioned; and if such penalty shall not exceed the sum of 51., the same shall in like manner be recoverable before a justice of the peace, and no writ of certiorari shall be allowed; and it was urged, that the correct construction of this section of stat. 3 G.4. was, that where the penalty falls short of 5)., there shall be no appeal, the words “subject to appeal" which occur in the former clause of the seetion, being omitted in the last ; so that the decision of the justice, &c. in such case is, in effect, declared final by 4 G. 4. c. 95. § 87.: but Lord Tenterden in delivering his judgment said, “I entertained some doubt during the argument, whether there could be any appeal to the sessions in this case; but on further consideration it seems to me, that the provision taking away the appeal expressly in cases where the penalty does not exceed 40s., manifestly shews that it lies in cases where the penalty exceeds that sum.” (See this case stated more fully, tit. lhightoaps.)
Again, in Rex v. Justices of Salop, 2 B. & 4d. 145., guardians and directors of the poor were incorporated by statute, and were thereby ordered to hold certain courts and meetings, at which