a bond in which no provision is made for "his personal appearance" to take his sentence or imprisonment, then he can always escape. If the legislature had not thought it important that the defendant should personally appear they would not have inserted the words in the section of the Act, nor would they in the form 000 which is given. They have, when stating the condition under which an appeal can succeed, stated distinctly, both in the section and in the form, that one of the conditions shall be a bond providing for the "personal appearance" as well as for the payment of the costs. How can this, or any other court say that these words and provisions, plain, distinct and positive as they are, should have no effect whatever.

I have not the least doubt that the judge was entirely right when he dismissed the appeal for want of a proper and sufficient bond, because as was said by the Supreme Court in the case I have referred to, an appeal can be taken, as it was done here, by the notice and entry, but it would be dismissed on a proper application for insufficiency of the bond or security, which is a statutory condition precedent to carrying on a successful appeal.

For these reasons, I have no doubt the judgment of the Court of appeal is entirely right and a certiorari should not go to remove it, even had not the statute prohibited it, which it clearly does.

TUCK, C.J., agreed with HANINGTON, J.

LANDRY, J.:-The Criminal Code, section 879, gives a right of appeal from the conviction obtained in this case. Section 880 defines the conditions of the right to prosecute such appeal, and among such conditions are found a notice to the respondent and a bond conditioned personally to appear, etc., before the court appealed to. Compliance with such conditions was necessary to give the court appealed to jurisdiction to hear and determine the matter of appeal. In this case the notice was given and a bond was entered into, but the word "personally" required by the Act was omitted from such bond. This appeal was entered on the

trial docket, and on being called on the court decided that the omission of the word "personally" divested it of its jurisdiction to hear and determine and dismissed the appeal with costs. The appellant now claims that the court having decided that it had no jurisdiction, had not the power to award costs. Three sections in the Criminal Code deal with the question of costs in such appeals, namely, section 880, sub-section (e), section 883 and section 884, but none of these sections makes any provisions as to costs for a proceeding like this, where a court, having no jurisdiction to hear and determine by reason of a defect in the bond, dismisses the appeal.

Sub-section (e) of section 880 deals with costs where the Appeal Court has heard and determined. Section 883 authorizes a hearing and determining on the merits, notwithstanding defects in the conviction or order, and authorizes on such hearing an adjudication as to costs, and section 884 authorizes the court appealed to to deal with costs when the appellant does not prosecute after having given notice of his intention to do so. The authority, therefore, to impose costs in this case must be looked for outside of any direct statutory authority. I do not even see that these sections give implied authority in this case; on the contrary the fact of making provisions for costs in the cases provided for would seem to imply that no authority exists where no special provision is made.

The authorities cited on the argument are somewhat conflicting: Morice v. Forster, 25 N.B.R. 1, decides that though the judge of a county court has no jurisdiction to try a case he nevertheless, has power to award costs on dismissing the case for such want of jurisdiction, and Read v. Pope, 1 C.M. & R. 302; 4 Tyrw 403, is cited as an authority for this decision.

On the other hand, Reg. v. Becker, 20 Ont. Rep. 676, was quoted, where it was held by McMahon, J., and confirmed by Galt, C.J., and Rose, J., that, speaking of an appeal to the general sessions "it was impossible that the appeal should be heard and determined on its merits, and, if not so heard, the sessions had no power over the costs."

While I believe that the statute providing the appeal does not directly give jurisdiction over costs in a matter coming before the court in this way, yet I will not differ from the opinion that there is authority established by our own court to exercise such jurisdiction. An Appeal Court may deal with the question of costs in an appeal over the subject matter of which the court had jurisdiction, if properly before it, though prevented from hearing and determining it on the merits by default of the appellant in the non-performance of such conditions as are essential to be performed by him to entitle him to establish jurisdiction in the court. The matter was brought to the notice of the court by the appellant; the court was asked by him to adjudicate, and some determination had to be arrived at. The court was right, I believe, in deciding that it had no jurisdiction by reason of a default of the appellant in an important particular in the preparation of his bond, and, in having to order a dismissal for that reason, it had authority to order costs.

Not being prepared to commit myself to all the opinions contained in the judgment of my brother HANINGTON, I have thought it better to give my own views, though not differing in the general result.

MCLEOD, J.-While I do not dissent in this case I confess I have great doubts as to the power of the judge to give costs where the case is not heard or decided on its merits. His power to give costs seems to me to be derived from the statute, and that only authorizes him to give costs when the case is heard on its merits. That is held in In re Madden, 31 U.C.Q.B. 333, and I think it is supported in The Queen v. Padwick, 8 E. & B. 703.

BARKER, J., agreed in the result.

Order nisi discharged.

Note: Quashing appeals from summary convictions—jurisdiction as costs -Cr. Code, sec. 884.

In Re Madden (1871), 31 U.C.Q.B. 333, it was held by Wilson, J., upon the authority of Reg. v. Padwick, 8 E. & B. 704, that the sessions had no power to award costs on dismissing an appeal for want of proper

Note-Continued.

Quashing appeals from summary convictions-Jurisdiction as

costs-Cr. Code, sec. 884.

notice of appeal, holding that the words "shall hear and determine the appeal" mean "shall decide it upon the merits."

This was followed in a later case of Reg. v. Becker (1891), 20 Ont. R. 676, by MacMahon, J., who directed prohibition against an order of sessions which directed payment of costs by an appellant whose appeal had been quashed by reason of the fact that this recognizance was insufficient in not providing for payment of the costs of appeal. In Becker's Case the notice of appeal and recognizance had been put in and proved by the appellant at the opening of the sessions and the following day had been fixed for the hearing.

In Reg. v. Recorder of Bolton (1844), 2 D. & L. 510, a party having been summarily convicted, entered into a recognizance and gave notice of appeal to the sessions, upon which he was immediately discharged out of custody. He afterwards abandoned his notice of appeal without having entered the appeal. Upon the application of the respondent the sessions refused to grant either leave to enter the appeal for the purpose of having it dismissed or an order for costs. It was held by Patteson, J., on a motion for a mandamus that the sessions had properly refused both applications but that that there was still the remedy of estreating the appellant's recognizance. The statute there provided that "the justices at such sessions are hereby authorized and required, upon due proof made of such notice of appeal, etc., to hear and determine the matter of the said appeal, and to award such costs as to them shall appear just and reasonable, to be paid by either party," etc.

Patteson, J., said:

"It seems to me impossible to contend that the Act of Parliament meant that where the party who gave notice of the appeal did not enter it, the sessions should, nevertheless, have jurisdiction to hear and determine it. What is meant by the words upon due proof made of such notice of appeal' is that the appellant must satisfy the sessions of such notice having been given before they can proceed to hear it; but a prior step must be taken to enter it and make it a matter cognizable by them. I think, therefore, that it is not possible to construe the Act of Parliament in any other way than to say that where notice of appeal is given and the appeal is entered, then the sessions may proceed to hear and determine the appeal, but not otherwise. Where a party gives a recognizance to appeal, and thereupon is not imprisoned, and afterwards neglects to enter his appeal, the not entering the appeal according to the recognizance comes to the same thing as if there had been no notice at all; and the magistrates might proceed the same as if no such notice of appeal had ever been given." Proceeding to a consideration of the words of the statute in regard to costs, Patteson, J., said:

Note-Continued.

Quashing appeals from summary convictions-Jurisdiction

costs-Cr. Code, sec. 884.

as

"It is clear, however, that these costs are merely ancillary to the appeal, for the Act says that the justices shall hear the appeal before it empowers them to award costs; and no express power is given to award costs where the appeal is not followed up."

In London County Council v. West Ham (2), [1902] 2 Q.B. 173, it was held by the English Court of Appeal that there was no power to give costs to a successful appellant in a case stated by the quarter sessions to the Queen's Bench.

Lord Esher held that:

"At common law no court of common law had jurisdiction to give costs at all, and that the whole power in those courts to give costs is given them by statute."

"In former times a case like this would have been brought up by a certiorari. The certiorari has been dispensed with by Act of Parliament, and, therefore, is no longer necessary; but the case stands precisely in the same position as if it had been brought up by certiorari. What would have been the state of things if it had been brought up by certiorari? There would have been no inherent or original jurisdiction in the courts to deal with costs. The only jurisdiction they would have would be under a statute or under the recog nizances. There is no jurisdiction by any statute; therefore it follows that the only jurisdiction to deal with costs would be under the recognizance. But then the recognizance only applies where the order is affirmed. If the order is affirmed the successful party obtains costs under the recognizance; if the order is quashed there are no costs." Lopes, L.J., further expressed his approval of the resumé of the law contained in Reg. v. Parlby (1889), W.N. 190, which contains the following statement:

"The court had no power to grant costs at all on proceedings in certiorari (Corner's Crown Prac., 78, 79), except that the court could discharge a rule nisi for a certiorari with costs by virtue of its inherent jurisdiction to discharge any application with costs, although it might have no jurisdiction to hear the matter of the application. Mackintosh v. Lord Advocate, 2 App. Cas. 41 (H.L.). Where, therefore, before the passing of the Judicature Acts and the Rules of 1880, a rule nisi for a writ of certiorari to bring up an order of justices was made absolute, it was made absolute without costs. The writ then issued as now, but before it could then, or can now, be allowed, the prosecutor was and is bound by 5 Geo. 2, c. 19, s. 2, and rule 36 of the Crown Office Rules of 1886, to enter into recognizances to pay the costs if he should be defeated, i.e., if the order which he seeks to quash should be affirmed. It was therefore by virtue of the recog

9-c.c.c.-VIII.