defendant have obtained an order for costs from the session, under sec. 69 of the principal Act. (s)

The notice need not be signed by the appellant. (t)

The words within four days after conviction, exclude the day of conviction. (u)

An appeal lies to the sessions from a summary conviction, under the Inland Revenue Act, 31 Vic., c. 8, s. 130, for possessing distilling apparatus without having made a return thereof, such an offence being a crime. (v)

So an appeal lies from a conviction for penalties under the Dominion Fisheries Act, 1868, c. 60. (w)

Under" the Indian Act, 1876," 39 Vic., c. 13, s. 84 (D.), an appeal must be brought before the appellate judge within thirty days from the conviction. Giving notice of appeal to the next session, and entering a recognizance within that time, is not sufficient. (x)

The person appealing from a summary conviction by a justice, must show a compliance with all the conditions imposed upon him by the statute under which he appeals. He must not only give notice within the proper time, but he must also either remain in custody or enter into the proper recognizance. (y) Where, in the recognizance, the appellant, instead of being bound to appear and try the appeal, etc., as required by the Act, was bound to appear at the sessions to answer any charge that might be made against him, the appeal was dismissed. An application to take the appellant's recognizance in court was refused, on the ground that, although the recognizance need not be entered into within four days, it must be entered into and filed before the sittings of the Court of Quarter Sessions, to which the appeal is made. (2) It was held, under the former statutes, that the form of

(8) Reg. v. Caswell, 33 U. C. Q. B. 303.

(t) Reg. v. Nicol, 40 U. C. Q. B. 76.

(u) Scott v. Dickson, 1 U. C. P. R. 366.

(v) Re Lucas and McGlashan, 29 U. C. Q. B. 81.

(w) Reg. v. Todd, 1 Russell & Chesley, 62.

(x) Re Hunter, 7 U. C. P. R. 86.

(y) Kent v. Olds, 7 U. C. L. J. 21; Re Meyer, 23 U. C. Q. B. 611. (2) Kent v. Olds, supra.

recognizance to try an appeal, given in the schedule to the Con. Stats. Can., c. 103, p. 1130, was sufficient, though the condition differed in form from that provided for by c. 99, s. 117. (a)

Before an appeal can be entertained, it is clearly incumbent on the appellant to show his right to appeal, by proving compliance with the 33 Vic., c. 27, s. 1, subs. 3, by having remained in custody, or entered into a recognizance. This is a substantial, not a mere technical, objection to the appeal, and is not waived by the respondent asking for a postponement, after the appellant has proved his notice of appeal on the first day of the court. (b)

But when exception has been taken to the jurisdiction of the court, and the party objecting has afterwards proceeded to trial on the merits, he should be held to have waived proof of the preliminary conditions to give jurisdiction, where it appears that they have in fact been complied with. (c)

The production of the recognizance by the clerk of the court, and proof of service of the notice of appeal, are sufficient to found the jurisdiction of the court. (d)

The enrolment of the recognizance is unnecessary, and the filing the recognizance by the appellant, instead of its being transmitted to the clerk of the peace by the justice who took it, is not fatal. So the condition reading to appeal "to the General Quarter or General Sessions," and not "to the Court of General Sessions of the Peace," does not render it invalid. (e)

A notice of appeal following the form given in the Con Stats. Can., c. 103, p. 1130, and stating "that the formal conviction drawn up and returned to the sessions is not sufficient to support the conviction, etc.," was held sufficiently particular to allow all objections being raised, which were apparent on the face of the conviction or order. (f)

After notice of appeal has been given, and the time for hearing the appeal arrived, no amendment can be made to the conviction. (g)

The appeal should not be drawn up until the four days have elapsed. (h)

It appears to be the established practice for the sessions to hear appeals on the first day, but there is no law compelling them to do so. (i)

One D. M. having been on the 27th of August, 1862, convicted before justices of the peace, "for allowing card-playing at his inn, and other disorderly conduct during this year," was fined $20 and costs. On judgment being pronounced, he remarked that he would pay the fine, etc., but he would "see further about it." On the 30th of August notice of appeal was given to the prosecutor and to one of the convicting justices, and on the 11th of September the appeal came on at the Quarter Sessions, when that court decided that the right to appeal was waived and lost by reason of the plaintiff having paid the fine and costs. The court above, however, under these facts held that there was no waiver of the right to appeal; that the statement of the defendant was capable of meaning that he meant to use any remedy that was by law open to him, whether by appeal or otherwise, and as the Act respecting appeals does not require notice of appeal to the convicting justice, nor provide for a stay of the levy, it might be reasonably inferred that he paid the fine and costs to prevent the distress and sale which might have taken place, although he had at the moment of conviction given the most formal notice of appeal. (j)

The court should rather lean to the hearing of appeals than to dismissing them on technical grounds. (k)

An appeal from a conviction for selling liquor without

(g) Reg. v. Smith, 35 U. C. Q. B. 518.

(h) Reg. v. Hessell. 44 U. C. Q. B. 51.

(6) Re Meyers, 23 U. C. Q. B. 614, per Draper, C J.

(j) Re Justices of York, 13 U. C. C. P. 159.

(k) Ibid. 162, per Draper, C.J.; Rex v. Justices of Norfolk, 5 B. & A. 992,

license, contrary to the R. S. O., c. 181, must be tried by the judge of the county court in chambers, without a jury. (♪) And the judge may quash the conviction without hearing it de novo, if bad on its face. (m)

It would appear that, under the present statutes, which it has been decided are within the competence of the Dominion Parliament to enact, (n) it is discretionary with the court to grant or refuse a jury at the request of either appellant or respondent; for the 36 Vic., c. 58, s. 2, has been held to be explanatory of sec. 66 of the 32 & 33 Vic., c. 31, in all cases. (0) But, if a jury be not so demanded, it seems it is imperative on the court to try the appeal, and they shall be the absolute judges, as well of the fact as of the law, in respect to the conviction or decision appealed from. (p)

The Court of Quarter Sessions, by the 33 Vic., c. 27, s. 1, subs. 3, and R. S. O., c. 74, s. 4, has power, if necessary, from time to time, by order endorsed on the conviction or order, to adjourn the hearing of the appeal from one sittings to another or others of the said court. An adjournment of the sessions is a continuance of the same sessions or sittings. (q)

An appeal, dismissed for want of prosecution, may, at the instance of the appellant, and on his satisfactorily accounting for his non-appearance, be reinstated. (r)

The 32 & 33 Vic., c. 31, s. 66, provided that no witnesses should be examined who were not examined before the justice on the hearing of the case, and this whether the appeal was tried by the court or a jury. But now the 43 Vic., c. 44, s. 10, and the R. S. O., c. 74, s. 4, provide that either of the parties to the appeal may call witnesses and adduce evidence, in addition to the witnesses called and evidence adduced at the original hearing. (s)

(7) See sec. 71; Re Brown, 8 C. L. J. N. S. 81.

(m) Rose v. Burke, 1 Russ. & Geld. 94.

(n) Reg. v. Bradshaw, 38 U. C. Q. B. 564.

(0) Reg. v. Washington, 46 U. C. Q. B. 221.

(p) See 32 & 33 Vic., c. 31, s. 66; see also 33 Vic., c. 27, s. 1, subs. 3. (g) Reg. v. Guardians of Cam. Union, 7 U. C. L. J. 331; Rawnsley ▼. Hutchinson, L. R. 6 Q. B. 305.

(r) Re Smith, 10 U. C. L. J. 20.

(8) Reg. v. Washington, 46 U. C. Q. B. 221.

Where a rule nisi, for a mandamus to the sessions, commanding them to hear an appeal, called upon the Court of Quarter Sessions in and for the United Counties, etc., instead of the justices of the peace for the United Counties, and the rule had been enlarged in the prior term; on objection to the rule on the above ground, it was replied that the enlargement waived the objection, and this seems to have been acquiesced in by counsel and by the court. (t) In fact, it seems that in all cases formal and technical objections are waived by an enlargement. (u)

The appellant having been convicted of an assault under the Con. Stats. Can., c. 91, s. 37, appealed to the Quarter Sessions. On the first day of the court, after he had proved his notice of appeal, at the respondent's request the case was postponed until the following day, and the respondent then objected to the jurisdiction, as it was not shown that the appellant had either remained in custody or entered into a recognizance, as required by Con. Stats. Can., c. 99, s. 117. The court held that this objection was not waived by the application to postpone. (v)

Causes appealed to the sessions cannot afterwards be appealed to a superior court; nor can the latter court entertain such a case even to the extent of considering a point reserved by the sessions by consent. (w) And the right of appeal does not exist, even where the appeal to the sessions has gone off on a preliminary objection. (x)

For the purpose of preventing frivolous appeals, the 32 & 33 Vic., c. 31, s. 69, enables the Court of Sessions, on proof of the giving of notice of appeal, though such appeal was not afterwards prosecuted or entered, if it has not been abandoned according to law, to order the payment of reasonable costs, by the party giving the notice.

(t) Re Justices of York, 13 U. C. C. P. 159.
(u) Reg. v. Allen, 5 U. C. P. R. 453-8.

(v) Re Meyers, 23 U. C. Q. B. 611.

(w) Cochran v. Lincoln, 3 Russ. & Ches. 480; Rose v. Burke, 1 Russ. & Geld. 94; Coolan v. McLean, 3 Russ. & Ches. 479; 32 & 33 Vic., c. 31, 8. 71.

(x) Reg. v. Firman, 6 U. C. P. R. 67.