Page:EB1911 - Volume 02.djvu/223

This page has been proofread, but needs to be validated.

England.—When the royal authority in England grew strong as against that of the tenants in capite, the king’s courts in England were more effectively organized, and their net swept wider so as to draw within their cognizance matters previously adjudged in courts baron or courts leet or in the county court, and they acquired authority to supervise and review the decisions of the inferior and local courts, to control and limit their claims to exercise jurisdiction, and to transfer causes from the local to the royal courts. The machinery by which this process was usually effected, under the common law, was not by what is now known as appeal, but by the process of certiorari or writs of error or prohibition. Recourse was also had against the decisions of the royal courts by appeal to the great council of the king, or to parliament as a whole. The supremacy of the king’s courts over all causes, as well ecclesiastical as civil, has been completely established since the reign of Henry VIII., and they have effectually asserted the power to regulate and keep within their proper jurisdiction all other tribunals within the realm. Since that date the organization of judicial tribunals has gradually been changed and improved with the object (1) of creating a judicial hierarchy independent of executive control; (2) of ensuring that all decisions on questions of law shall be co-ordinated and rendered systematic by correction of the errors and vagaries of subordinate tribunals; and (3) of securing so far as possible uniformity in the judicial interpretation and administration of the law, by creating a supreme appellate tribunal to whose decisions all other tribunals are bound to conform. It would be undesirable to detail at length the history of appellate jurisdiction in England, involving as it would the discussion in great detail of the history and procedure of English law, and it may suffice to indicate the system of appeals as at present organized, beginning with the lowest courts.

Justices of the Peace.—The decisions of justices of the peace sitting as courts of summary jurisdiction are subject to review on questions of law only by the High Court of Justice. This review is in a sense consultative, because it is usually effected by means of a case voluntarily stated by the justices at the request of the aggrieved party, in which are set forth the facts as determined by the justices, the questions of law raised and their decision thereon, as to the correctness whereof the opinion of the High Court is invited. The procedure is equally open in criminal and civil matters brought before the justices. But when the justices decline to state a case for the opinion of the High Court, the latter, if review seems desirable, may order the justices to state a case. And the High Court has also power to control the action of justices by prohibiting them from acting in a case beyond their jurisdiction, ordering them to exercise jurisdiction where they have improperly declined (mandamus), or bringing up for review and quashing orders or convictions which they have made in excess of jurisdiction, or in cases in which interested or biassed justices have adjudicated (certiorari). None of these regulative processes exactly corresponds to what is popularly known as an appeal, but in effect if not in form an appeal is thus given.

There is also another form of appeal, in the fullest sense of the term, from the decision of justices sitting as a court of summary jurisdiction to the justices of the same county sitting in general or quarter sessions, or in the case of a borough to the recorder as judge of the borough court of quarter sessions. This form of appeal is in every case the creation of statute: and even in text-books it is hardly possible to find a really complete list of the matters in respect of which such appeal lies. But as regards criminal cases there is an approximately general rule, given by § 19 of the Summary Jurisdiction Act 1879, viz. that an appeal to quarter sessions lies from the conviction or order of a court of summary jurisdiction directing imprisonment without the option of a fine as a punishment for an offence, or for failing to do or to abstain from doing any act required to be done or left undone other than an order for the payment of money, or to find sureties or give security or to enter into a recognizance, or a conviction made on a plea of guilty or admission of the truth of the matter of complaint.

As a general rule, subject to particular statutory exceptions, appeals of this kind are by way of rehearing, i.e. the actor or prosecutor must before the appellate tribunal call his witnesses and prove his case just as if no previous hearing had taken place before the court appealed from (Pritchard, Quarter Sessions Practice, 2nd ed., 461). The only limit is that the appellant must confine himself to the grounds of appeal stated in the notice of appeal given by him.

Justices in Quarter Sessions.—This tribunal has under the commission of the peace and under statute power to refer questions of difficulty arising before it for decision to the High Court. The old mode of exercising this power was by sending on to assizes indictments raising difficult questions which had been presented at quarter sessions. The High Court has ex officio power to transfer such indictments where the nature of the case and the demands of justice call for such transfer. The quarter sessions had also power under statute on trying an indictment to refer to the court for crown cases reserved (Crown Cases Act 1848), abolished by the Criminal Appeal Act 1907, questions of law which had arisen at the trial, and in all civil cases the quarter sessions has power of its own volition and subject to no direct compulsion to consult the High Court on legal questions of difficulty which have arisen. Until 1894 this jurisdiction was regarded as consultative only. It was and is exercised by stating the facts, of which the court of quarter sessions is the sole judge, and indicating the questions of law arising on the facts, and the view of quarter sessions thereon, and inviting the opinion of the High Court. Under the Judicature Act 1894 cases stated in this way are now treated as “appeals” in the popular sense.

Inferior Courts of purely Civil Jurisdiction.—An appeal also lies as a general rule to the High Court from the judgment of a county court or of any inferior tribunal having civil jurisdiction.

(a) County Courts. Any party to an action or matter in a county court who is dissatisfied with the determination or direction of the judge in law or equity, or upon the admission or rejection of any evidence, may appeal against the decision in the following cases: (1) if the amount of claim or counter-claim in the proceeding exceeds £20; or (2) in all equity matters or cases in which an injunction has been given; or (3) in actions to recover possession of land where questions of title are involved (County Courts Act 1888, § 120). In the case of a claim below £20 no appeal lies except by the leave of the county court. The old practice of appeal by way of special case as in appeals from justices has been abolished, and the present procedure is by notice of motion (R.S.C. O. LIX. rr. 10-18).

These appeals are heard in the king’s bench division, except in the case of appeals from judgments of a county court sitting in the exercise of admiralty jurisdiction, which are heard by two or more judges sitting in the probate, divorce and admiralty division. The chancery division has never sat to hear “appeals” from a county court exercising equity jurisdiction; but at times, by prohibition or certiorari, has, in effect, reviewed or restrained excess of jurisdiction by county courts in equity matters.

The decision of the High Court on county court appeals is final unless an appeal to the court of appeal is brought by leave of that court or of the High Court (Judicature Act 1894, § 1, sub. sect. 5; Judicature Act 1873, § 45).

(b) Other inferior courts of civil jurisdiction. Appeals from the local courts of record which still survive in certain cities, towns and districts are in a somewhat anomalous position. The general rule is that, unless a statute regulates such appeal, it may be brought in the king’s bench division of the High Court on notice of motion in any case in which, before the Judicature Acts, the court of king’s bench could have reviewed the decision of the inferior court by writ of error. The history of this question is dealt with in Darlow v. Shuttleworth, 1902, 1 K.B. 721.

In the case of the mayor’s court of London, under the local and general statutes regulating that court, the appeal is usually to the king’s bench division, but where there is what is termed “error” on the face of the proceedings of the mayor’s court,