New Bruns wick, Mani (c) in the provinces of Nova Scotia, New Brunswick and Nova Scotia, Manitoba, to the county court of the district or county where the cause of the information or complaint arose; toba. (d) in the province of British Columbia, to the county court, British at the sitting thereof which shall be held nearest to the Columbia. place where the cause of the information or complaint arose; (e) in the province of Prince Edward Island, to the Su- P.E. Island. preme Court; wan and (f) in the province of Saskatchewan or the province of Al- Saskatcheberta, to the district court at the sittings thereof which Alberta. shall be held nearest to the place where the cause of the information or complaint arose; (g) in the Northwest Territories, to a stipendiary magis- Northwest. trate; and, (h) in the Yukon Territory, to a judge of the Territorial Yukon. Court. 2. In the district of Nipissing such person may appeal to Nipissing. the Court of General Sessions of the Peace for the county of Renfrew, when the conviction adjudges imprisonment only, and in all other cases to the Division Court of the county of Renfrew held nearest to the place where the cause of the information or complaint arose. Northwest 3. In the case of the provinces of Saskatchewan and Alberta, Saskatcheand of the Northwest Territories and the Yukon Territory, wan, Alberta, the judge or stipendiary magistrate hearing any such appeal and Yukon, shall sit without a jury at the place where the cause of the in- no jury. formation or complaint arose, or at the nearest place thereto where a court is appointed to be held. 55-56 V., c. 29, s. 879; 4-5 E. VII., c. 3, s. 16; c. 10, ss. 1 and 2; c. 27, s. 8; c. 42, s. 16; 6 & 7 E. VII., c. 45, s. 6. Effect of appeal.]-Where a justice of the peace proceeded with a charge of destroying a line fence although it appeared that the defendant pulled down the fence where it crossed a road long used by the public and that the title to the land was therefore in question and the magistrate's jurisdiction ousted, the right to certiorari is not taken away by an appeal to the county court being entered under Code sec. 749, for the county court had no jurisdiction to rehear a case in which there was no jurisdiction below. Ex parte Roy (1907), 12 Can. Cr. Cas. 533 (N.B.). Where an appeal has been taken to a county court under sec. 749 from a summary conviction and the county court has affirmed the conviction, it is not open to the accused to afterwards have the convicting magistrate refer a "stated case" to a superior court. The decision of the county court being res adjudicata between the parties is a bar to the application for a "stated case." The King v. Townshend (No. 2), 6 Can. Cr. Cas. 519, 35 N.S.R. 401. A person who has been convicted under the Summary Convictions Part of the Criminal Code upon his plea of guilty may, notwithstanding such plea, enter an appeal under Code sec. 749. The plea of guilty concludes the accused only as to the fact that he did what is charged in the information, and he may still appeal upon the ground that the conviction is bad in law or upon an objection to the information or summons taken before the magistrate and overruled by him. The King v. Brook, 7 Can. Cr. Cas. 216, 5 Terr. L.R. 369. The taking of a writ of certiorari is a waiver on the part of the petitioner of his right of appeal on grounds other than those affecting the jurisdiction. Denault v. Robida, 8 Can. Cr. Cas. 501. Where an appeal was taken from a summary conviction but lapsed because of the failure of the magistrate to return the conviction, a superior court may afterwards issue a certiorari and quash the conviction notwithstanding the abortive appeal and notwithstanding Code sec. 1122, upon the ground that the magistrate had deprived the accused of a reasonable opportunity of making their defence and had acted collusively with the prosecutor. Ex parte Cowan (1904), 9 Can. Cr. Cas. 454. Person who thinks himself aggrieved.]-The expression "party aggrieved" has been held not to be a technical expression, but one to be construed according to the ordinary meaning of the words. Robinson v. Currey, L.R. 7 Q.B. 465. Where a statute gives a right of appeal "to any person who may think himself aggrieved" it is necessary that the appellant should have legal grounds for thinking himself aggrieved by what he appeals against. Harrup v. Bayley (1856), 6 Ellis & Bl. 218 (Lord Campbell, C.J., Erle, J., and Crompton, J.). gives an appeal In that case Lord Campbell said: "The Act to any person who 'may think himself aggrieved'; but that does not mean to any person who says or fancies he is aggrieved. Giving it a reasonable construction, the enactment means to give an appeal to any one who has legal ground for saying he is aggrieved. Now, how can such a provision apply to a person who wishes to complain of the act which he himself authorized and expressly required to be done?" Crompton, J., in the same case said: "The parties all thought that the application of the (town) funds would not be legal though it would be beneficial. Now, though others not parties to that resolution may be entitled to complain that it was acted on, I think the appellant is precluded from saying that he is aggrieved by what was his own act.” Where a prosecution under a special Act may be brought only by "a person aggrieved," a summary conviction will be quashed unless the informant be a person who has sustained a loss or liability recognized by law by reason of the alleged offence. R. v. Frankforth (1904), 8 Can. Cr. Cas. 57. Part XV. of the Criminal Code which grants the right of appealing from a summary conviction only applies under the express enactment contained in section 706, to cases respecting offences over which the Parliament of Canada has legislative authority and for which summary convictions may be rendered against offenders who have violated the criminal law of the Dominion. It does not apply to penal cases which arise from and are governed by provincial legislation, unless the provincial legislature has declared that it shall apply and has thereby incorporated the Dominion law into its own. Payment of fine under protest.]—One D.M. having been on 27th August, 1862, convicted before justices of the peace for allowing card playing at his inn was fined $20 and costs. On judgment being pronounced he remarked that he would pay the fine, but he would see further about it. It was held that the facts as set out did not amount to the waiver of the right to appeal, as the money was paid under protest, and the court stated its opinion that a party should not, on any doubtful ground, be deprived of a right of appeal against a summary conviction. In re Justices of the Counties of York and Peel, ex parte D. Mason (1863), 13 U.C.C.P. 15. Where the fine and costs imposed by a summary conviction were payable forthwith and in default of distress the immediate payment of same to the magistrate accompanied by a request for information as to the time. allowed for appeal, is not a waiver of the right of appeal. The King v. Tucker, 10 Can. Cr. Cas. 217. But if the defendant on being fined thereupon pays the fine without protest and without compulsion of immediate payment it seems that he thereby waives his right of appeal. R. v. Neuberger, 6 Can. Cr. Cas. 142. Where remedy by appeal inadequate.]-To raise the question whether proper service of process has been made and jurisdiction acquired over the person, certiorari is the appropriate remedy and not an appeal. R. v. Smith, L.R. (1875), 10 Q.B. 604; R. v. Farmer, [1892] 1 Q.B. 637; Re Ruggles (1902), 5 Can. Cr. Cas. 163 (N.S.). An appeal is inadequate in such a case because the defendant would in proceeding with an appeal give the court jurisdiction over his person. Rand v. Rockwell, 2 N.S.D. 199; Re Ruggles (1902), 5 Cạn. Cr. Cas. 163. In Quebec.]-An appeal under 749, from a summary conviction in the Province of Quebec to the Court of Queen's Bench of that province can only be taken where the offence charged is one within the legislative authority of the Parliament of Canada, and not where the offence is against a provincial statute. Lecours v. Hurtubise (1899), 2 Can. Cr. Cas. 521; Scottstown v. Beauchesne, 5 Que. Q.B. 554. The appeal to the Quebec Court of Queen's Bench, Crown Side, provided in sec. 749, does not apply to a conviction by the Harbour Commissioners, in their capacity of the pilotage authority, depriving a pilot of his license. Such a conviction is subject, in the Province of Quebec, to proceedings by certiorari to the Superior Court on proof of due cause for evocation. Arcand v. Montreal Harbour Commissioners (1897), 4 Can. Cr. Cas. 491 (Que.). The appeal from a summary conviction under the Seaman's Act of Canada for harbouring and secreting a deserting seaman is under sec. 749 and not under sec. 1013 of the Code, and in the Province of Quebec the appeal should be taken to the Crown side and not to the appeal side of the Court of Queen's Bench of that province. R. v. O'Dea (1899), 3 Can. Cr. Cas. 402 (Que.). Where there is a right of appeal from a summary conviction, and it appears upon an application for a certiorari to bring up the conviction to be quashed that the ground alleged therefor is more properly the subject of an appeal, the discretion of the court should be exercised by refusing the certiorari. R. v. Herrell (No. 2) (1899), 3 Can. Cr. Cas. 15 (Man.). Appeals on certain summary trials under Part XVI.]-Whenever a person is charged before a magistrate, under Part XVI. as to summary trials with theft, or obtaining money or property by false pretenses, or unlawfully receiving stolen property, where the value of the property does not, in the judgment of the magistrate, exceed ten dollars; or with keeping or being an inmate, or habitual frequenter of any disorderly house, house of ill-fame or bawdy-house; and the magistrate, subject to the 38-CRIM. CODE. Procedure. provisions of Part XVI., hears and determines the charge in a summary way, in any of the provinces, an appeal shall lie from a conviction for the offence in the same manner as from summary convictions under Part XV., and all provisions of that Part relating to appeals shall apply to every such appeal: Provided that in the Province of Saskatchewan or Alberta there shall be no appeal if the conviction is made by a judge of a superior court. Code sec. 797. Appeals under special statutes.]-All the provisions of secs. 749-751 are to be taken as embodied in the Act as to frauds against cheese factories, except as varied by or inconsistent with the latter Act, and confer the power to award costs on an appeal taken thereunder. R. v. McIntosh (1897), 2 Can. Cr. Cas. 114 (Ont.). An appeal lies under this section from a conviction made under the Fisheries Act (Can.), notwithstanding the special appeal provided by that Act. R. v. Townsend (1901), 5 Can. Cr. Cas. 143 (N.S.). The special appeal, which under the Fisheries Act, may be made to the Minister of Marine and Fisheries, may be taken after the disposal of an appeal to a county court Ibid. When appeal bars certiorari.]—In matters coming under the provisions of the Code, the right to certiorari is taken away in respect of any conviction or order had or made before any justice of the peace if the defendant has appealed therefrom to any court to which an appeal is anthorized by law (sec. 1122) and also in respect of any conviction or order made upon such appeal, or the conviction or order affirmed, or affirmed and amended, in appeal. Secs. 1121 and 1122. It is well established that a provision taking away the right of certiorari does not apply where there was an absence of jurisdiction. Ex parte Bradlaugh (1878), 3 Q.B.D. 511; but although the writ is allowed to issue, the order removed will not be quashed in such a case except upon the ground either of a manifest defect of jurisdiction or a manifest fraud in procuring it. Colonial Bank v. Willan (1874), L.R. 5 P.C. 417. The power of a superior court to remove proceedings before justices of the peace is incident to the superintending authority which that court possesses over inferior jurisdictions and it was held that the direction of a statute (22 Car. II., ch. 1, sec. 6) which gave an appeal to the sessions and enacted that "no other court whatsoever shall intermeddle with any cause or causes of appeal upon this Act but they shall be finally determined in the quarter sessions only" did not prevent the removal of the order by certiorari. R. v. Morley, 2 Burrows 1040. Unless the intention to do away with the writ is shewn by express mention of certiorari, it will be inferred that the "determination" referred to is in reference to matters of fact.only. R. v. Plowright, 3 Mod. 95, 2 Hawkins Pleas of the Crown, 6th ed., ch. 27, sec. 23. And see cases referred to under sec. 1122. 750. Unless it is otherwise provided in the special Act,— (a) if a conviction or order is made more than fourteen days before the sittings of the court to which an appeal is given, such appeal shall be made to the next sittings of such court; but if the conviction or order is made within fourteen days of the sittings of such court, then to the second sittings next after such conviction or order; intention. (b) the appellant shall give notice of his intention to appeal Notice of by filing in the office of the clerk of the court appealed to, and serving the respondent with a copy thereof, a notice in writing setting forth with reasonable certainty the conviction appealed against and the court appealed to, within ten days after the conviction complained of, and shall, at least five days before the hearing of such appeal, serve upon the respondent or his solicitor a notice setting forth the grounds of such appeal; custody or (c) the appellant, if the appeal is from a conviction adjudg- Appellant ing imprisonment, shall either remain in custody until the remains in holding of the court to which the appeal is given, or shall gives recog enter into a recognizance in form 51 with two sufficient nizance. sureties, before a county judge, clerk of the peace, or justice of the peace for the county in which such conviction has been made, conditioned personally to appear at the said court, and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as are awarded by the court; and upon such recognizance being given, the justice before whom such recognizance is entered into, shall liberate such person, if in custody; (d) in case of an appeal from the order of a justice, pur- Recognizance suant to section six hundred and thirty-seven, for the to value of restoration of gold or gold-bearing quartz, or silver or when. property silver ore, the appellant shall give security by recogniz ance to the value of the said property to prosecute his appeal at the next sittings of the court and to pay such costs as are awarded against him. 55-56 V., c. 29, s. 880; 4-5 E. VII., c. 10, ss. 3 and 4. Appeal generally.]-An appeal from a summary conviction to the general sessions in a criminal case does not abate by the death of the inform ant. R. v. Fitzgerald (1898), 1 Can. Cr. Cas. 420. The magistrate's finding in a summary conviction upon a question of fact within his jurisdiction will not be reviewed upon certiorari, and the same can be attacked only by way of appeal from the conviction. R. v. Urquhart (1899), 4 Can. Cr. Cas. 256 (Ont.). As to proceedings in certiorari see note to sec. 1124. The sittings at which appeal is to be made.]-If the conviction or order appealed from is made more than 14 days before the court sittings, i.e., before the first day of the next sittings of the court, then notice of appeal is to be given for that sittings, the appellant not being given the option of choosing a later sittings in that event. But if the next sittings of the court which is to hear the appeal commences within 14 days after the conviction or order appealed from, the appellant, even if willing to expedite the hearing by going down to that sittings, is not entitled to serve |