The Sessions may either quash the conviction, for defects appearing upon the face of it, or quash or confirm it upon the merits. If they go into the merits, the respondent's counsel always begins, and calls witnesses to prove the offence; the appellant's counsel is then heard; and if he call witnesses to facts, the respondent's counsel is entitled to the general reply. But if the appellant's counsel have any objection to make to the conviction, for any defect appearing upon the face of it, he may, with the leave of the Court, make his objections before the respondent goes into his case; the respondent's counsel is heard in answer; the appellant's counsel replies; and the Court decide. If they decide in favour of the appellant, they quash the conviction, and the case is at an end. But if they decide against the objections, then the respondent's counsel opens his case, and the parties proceed in the trial upon the merits, as above-mentioned. But where an appellant, relying upon an objection to the conviction, got the Sessions to quash it on that ground; and afterwards the order of Sessions and conviction being removed into the Court of King's Bench by certiorari, that Court, holding the objection to be unfounded, quashed the order of Sessions: the appellant then applied to have the case sent down to the Sessions, to be heard upon the merits; but the Court refused it, saying, that as the defendant had chosen to rely upon the formal objection, he was concluded by that election. R. v. Allen, 15 East, 333, 346.

Sometimes however the statute, giving the appeal, (such for instance as the Excise Act, 7 & 8 G. 4, c. 53, s. 82,) directs the Sessions to amend the conviction for all defects in form. See also stat. 3 G. 4, c. 23, s. 3. When this is the case, the question then will be, whether the defect objected to be one of form or of substance. See on this subject, ante, p. 286-288.

Upon the hearing of the appeal, neither the respondent nor the appellant are confined to the evidence given before the convicting magistrate; see ante, p. 286; unless it be otherwise ordered by the statute giving the appeal, as for instance in the Excise Act, 7 & 8 G. 4, c. 5, s. 84. See 4 & 5 W. 4, c. 51, s. 24.

The judgment is merely that the conviction be confirmed or quashed. If confirmed, it is considered and treated as if it never had been appealed against; and the appellant may thereupon be proceeded against accordingly, unless there be some provision in the particular statute to the contrary.

Costs.] Although justices out of Sessions may award costs to either party, in all cases in which a summons or warrant is issued; 18 G. 3, c. 19; yet there is no general Act, which enables the justices at Sessions to do so, in appeals before them against convictions; and their power to grant costs, in such cases, must depend entirely upon the statute giving or regulating the appeal. Where a statute gave authority to the Sessions to

Quarter Sessions to which such appeal shall be made, shall not examine or inquire into any other cause or ground of appeal, than such as are or is stated and specified in the notice of appeal." And where, upon the trial of an appeal against a poor-rate, the rate appeared bad upon the face of it, as not stating the property in respect of which the parties were rated, and the appellant insisted it should be quashed on this ground; the respondents, on the other hand, contended that no advantage could be taken of the objection, as it was not stated as one of the causes of appeal in the notice; but the Sessions decided otherwise, and quashed the rate the Court of King's Bench, however, held that the Sessions have no jurisdiction to quash a rate, even for a defect appearing upon the face of it, unless that defect be specified in the notice of appeal. R. v. Bromyard, 8 B. & C. 240.

If the appellants' counsel call witnesses, or give any documents in evidence, the respondents' counsel is entitled to the general reply. See ante, p. 24.

It may be necessary to mention, that persons rated to the poor in the parish, are competent witnesses for or against it, upon the trial of an appeal against a poor-rate. 54 G. 3, c. 170, s. 9. See ante, p. 146, 147.

Judgment.] Any of the justices, who are rated as occupiers or inhabitants in the parish or township, cannot vote in determin. ing the appeal. 16 G. 2, c. 18, s. 3. See unte, p. 11.

Formerly, the only judgment the Sessions could give, was, that the rate should be confirmed or quashed. But it seems to have been holden that the Sessions, after giving judgment that the rate should be quashed, might themselves make a new rate instead of it. As this had the effect of depriving the parishioner of his appeal, (for there was no tribunal to which he could appeal against a rate made by the Sessions,) the legislature, therefore, to remedy this, by stat. 17 G. 2, c. 38, s. 6, reciting that "it hath been held, that upon appeals from rates and assessments, the justices of the peace may not only quash the old rates, but make new rates and assessments, from which no appeal can be had;" enacted, "that upon all appeals from rates and assessments, the justices of the peace (where they shall see just cause to give relief,) shall and are hereby required to amend the same, in such manner only as shall be necessary for giving such relief, without altering such rates or assessments with respect to other persons mentioned in the same; but if upon an appeal from the whole rate, it shall be found necessary to quash and set aside the same, then and in every such case the said justices shall, and are hereby required to, order and direct the churchwardens and overseers of the poor to make a new equal rate or assessment, and they are hereby required to make the same accordingly."

There were however still two great defects, which this statute did not remedy, namely, first, that upon an appeal against the whole

rate, the rate still was to be quashed, and in the intermediate time between the quashing of the old rate, and the making and enforcing of the new (even supposing the latter not to be ap pealed against also), there might be no funds to maintain or provide for the poor; and secondly, the justices had no power to amend the rate, by altering the sum for which any other person but the appellant was rated, nor could they add any person to the rate, although that might form the subject of the appellants' complaint; indeed it would have been great injustice if the Sessions did so, because those persons, as the law then stood, were not parties to the appeal, and had no opportunity to be heard in their defence. All this however is now remedied by stat. 41 G. 3, c. 23, which, as we have already seen (ante, p. 330,) has provided that the appellant shall give notice of appeal to those who are alleged by him to be underrated or omitted, &c., and so make them parties to the appeal. By the 1st section of that statute, it is enacted that "upon all appeals from any rate or assessment made for the relief of the poor of any parish, town, ship, vill or place, the Court of General or Quarter Sessions of the Peace shall, and such Court is hereby authorized and required (in all cases where they shall see just cause to give relief) to amend such rate or assessment, either by inserting therein, or striking out, the name or names of any person or persons, or by altering the sum or sums therein charged on any person or persons, or in any other manner which the said Court shall think necessary for giving such relief, and without quashing or wholly setting aside such rate or assessment: provided always, that if the said Court shall be of opinion that it is necessary, for the purpose of giving relief to the person or persons appealing, that the rate or assessment should be wholly quashed, then the said Court may quash the same; but nevertheless, all the sum and sums of money in or by such rate or assessment charged on any person or persons, shall and may be levied and recovered by such ways and means, and in such and the same manner, as if no appeal had been made against such rate or assessment; and all and every the sum and sums of money which any person or persons charged in such rate or assessment shall pay, or which shall be levied upon or recovered from him, her, or them, shall be deemed and taken as payments on account of the next effective rate or rates, assessment or assessments, which shall be made for the relief of the poor of the same parish, township, vill or place." And by sect. 2, the rate may be recovered by distress, &c., notwithstanding notice of appeal be given, but proceedings are not to be taken against the party appealing, to recover any greater sum than he was rated at, in the last effective rate. By sect. 3, however, the Court, if they quash the rate, may order that the sum charged upon any person, or a part thereof, not to be paid, after which no proceedings shall be commenced for the same. See also sect. 7.

And by sect. 6, after directing that the appellant shall give notice of appeal to such other persons as he means to contend are omitted or underrated in the rate, as already mentioned (ante, p. 330,) it is enacted that it shall be lawful for the Court of General or Quarter Sessions of the Peace, on the hearing of such appeal, to order the name or names of such other person or persons to be inserted in such rate or assessment, and him, her, or them to be therein rated and assessed at any sum or sums of money, or to order the name of such other person or persons to be struck out of such rate or assessment, or the sum or sums at which he, she, or they is or are rated or assessed therein, to be altered in such manner as the said Court shall think right; and the proper officer of the said Court shall forthwith add to or alter the rate or assessment accordingly." And by sect. 8, if the Sessions thus order the name of any person to be struck out, or the sum at which he is assessed to be reduced, if it appear that he has already paid the sum, they shall order it to be repaid to him by such churchwarden or overseer.

As to a special case, see ante, p. 46.

Costs.] In an appeal against a rate, the justices "may award and order to the party, for whom such appeal shall be determined, reasonable costs, in the same manner that they are empowered to do in case of appeals concerning the settlement of poor persons," by stat. 8 & 9 W. 3, c. 30. (17 G. 2, c. 38, s. 4.) See ante, p. 324. Where notice of appeal against a rate was given, but countermanded a day before the Sessions, an application was made to the Sessions for costs, but they refused to grant them, thinking they had no authority to do so, as the appeal had not been entered; and they refused to hear evidence of the respondents being unnecessarily put to great expense: upon a motion for a mandamus, it was argued that as the statute gave the Sessions the same power as to costs in appeals against rates, that they had under the statute of William as to costs in appeals against orders of removal; and as under the statute of William, costs may be given, not only where the appeal is determined, but also where merely notice has been given, the justices in this case had authority to grant the respondents their costs; but the Court said, that the reference to the statute of William, in stat. 17 G. 2, c. 38, only relates to the mode in which the costs are to be recovered, but that by the very words of the stat. 17 G. 2, c. 38, s 4, the determination of the appeal was made a condition precedent to the power to grant costs; they therefore refused the mandamus. R. v. JJ. of Essex, 8 T. R. 583. But where an appeal against a rate was entered and respited; and at the next Sessions was again respited at the instance of the appellant; and four days before the third Sessions, the respondents gave the appellant notice that they gave up all opposition to the appeal;

and at the Sessions, the rate was accordingly quashed upon motion, and the Court granted the appellant his costs: afterwards, in the Court of King's Bench, it was objected, that although the appeal was entered, it was not determined, and therefore the Sessions had no authority by the statute to grant costs; but the Court held, that the appellant proving his notice of appeal, as he must have done, and the Sessions allowing that appeal, was a determining of it, within the fair meaning and construction of the statute, and that the Sessions therefore had authority to allow costs. R. v. Cawston, 4 D. & R. 445. Where a mandamus was directed to justices, to allow costs to a party in whose favour an appeal had been determined, the Court, upon the return of the writ, held, that it was reasonable the justices should have the power of judging whether costs should be allowed or not; and therefore quashed the writ. R. v. JJ. of the County of Nottingham, 1 Sess. Ca., 422.

SECTION 4.-Appeal against the Appointment of Overseers of the Poor.

In what Cases, and by whom.] By stat. 43 Eliz. c. 2, s. 1, four, three, or two substantial householders of every parish are to be nominated yearly in Easter week, or within one month after Easter, under the hand and seal of two or more justices of the peace of the same county, as overseers of the poor of such parish; which was extended to townships and vills, by 13 & 14 C. 2, c. 12, s. 21. And by 43 Eliz. c. 2, s. 6, it is provided, that if any person or persons shall find themselves grieved with any act done by the said justices of peace, then it shall be lawful for the justices of the peace at their General Quarter Sessions, or the greater number of them, to make such order therein as to them shall be thought convenient; and the same to conclude and bind all parties.

The overseer appointed may of course appeal against the appointment, as a person grieved by an act of the justices. And it has been holden that the parishioners also, as parties grieved within the meaning of the statute, may appeal against the ap-pointment. R. v. Forrest, 3 T. R. 38. See also R. v. JJ. of St. Alban's, 3 B. & C. 698.

To what Sessions.] The stat. 43 Eliz. c. 2. s. 6, above-mentioned, fixes no time within which the appeal is to be brought. It is said in some works upon this subject, that this section of the statute of Elizabeth has been impliedly repealed by the stat. 17 G. 2, c. 38, s. 4, already mentioned in the last section, and that the appeal must be to the next Sessions, and notice of appeal given, &c., under the latter Act. The latter clause is no doubt a repeal of the former, as far as respects appeals against

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