2ND EDIT. REVISED STATUTES 1906 REMARKS If, when the appeal comes up for hearing, the appellant be surprised by the production of a conviction different from the copy previously delivered to him, he may apply for time, and the appeal should be adjourned. (145) Sec. 881. Sec. 752. Court appealed to absolute judge of facts and of law. When an appeal against any summary conviction or order has been lodged in due form, and in compliance with the requirements of this part, the Court appealed to shall try, and shall be the absolute judge, as well of the facts as of the law, in respect to such conviction or order. 2. Any of the parties to the appeal may call witnesses and adduce evidence, whether such witnesses were called or evidence adduced at the hearing before the Justice or not, either as to the credibility of any witness, or as to any other fact material to the inquiry. 3. Any evidence taken before the justice at the hearing below, certified by the Justice, may be read on such appeal, and shall have the like force and effect as if the witness was there examined, if the Court appealed to is satisfied by affidavit or otherwise, that the personal presence of the witness cannot be obtained by any reasonable efforts. Slightly changed in the wording. Sec. 882. Sec. 753. Appeals on matters of form. Unchanged. Sec. 883. Sec. 754. Judgment to be upon the merits. Meaning unchanged. An appeal from a summary conviction is in Ontario to be taken to the Court of General Sessions of the Peace sitting without a jury; and section 881 (now 752) constituting such Court the absolute judge as well of the facts as of the law in respect of the conviction or decision appealed against is intra vires of the Dominion Parliament. (146) A statutory provision that the appellate court shall try the appeal without a jury is one relating to the procedure and not to the constitution of the Court. (147) The decision of the Court of General Sessions or County Court in appeal from a summary conviction has been held to be final and (145) R. v. Allen, 15 East, 346. (146) R. v. Malloy, 4 Can. Cr. Cas., 116. (147) Ib. 2ND EDIT. REVISED STATUTES 1906 REMARKS conclusive, and that a superior court has no jurisdiction to interfere by habeas corpus. (148) A county court judge who has allowed an appeal from a summary conviction under a statutory provision similar to section 754 of the Code, and has quashed the conviction, as invalid on its face, without hearing further evidence and trying the case de novo, cannot be compelled by mandamus to re-open the appeal for the purpose of hearing fresh evidence. (149) Sec. 884. Sec. 755. Costs when appeal not prosecuted. Unchanged in meaning. It has been held that, where an appeal from a summary conviction is entered and prosecuted, but is dismissed on the ground that it was not lodged in due form, costs cannot be allowed against the appellant, and that the above section, 755, only applies when the appellant fails to proceed with his appeal, without abandoning it according to law. (150) It has also been held, however, that the court to which an appeal might properly be taken from a summary conviction has jurisdiction to award costs to the respondent on quashing an appeal for want of jurisdiction through a defect in the notice of appeal. (151) Sec. 885. Sec. 756. Proceedings when appeal fails. Unchanged. Sec. 888. Sec. 757. Conviction to be transmitted to Appeal Court. Every Justice before whom anv person is summarily tried. shall transmit the conviction or order to the Court to which the appeal is by this Part given, in and for the district, county or place wherein the offence is alleged to have been committed, before the time when an appeal from such conviction or order may be heard, there to be kept by the proper officer among the records of the Court. 2. The conviction or order shall be presumed not to have been appealed against, until the contrary is shown. 3. Upon any indictment or information against any person for a subsequent offence, a copy of such conviction, certified by the proper officer of the Court, or proved (148) R. v. Beamish 5 Can. Cr. Cas., 388. (149) Strang v. Gellatly, 8 Can. Cr. Cas., 17. (150) R. v. Ah Yin, (No. 2), 6 Can. Cr. Cas., 66. (151) R. v. the Dolliver Mountain Mining & Milling Co., supra. 2ND EDIT. REVISED STATUTES 1906 EMARKS to be a true copy, shall be sufficient evidence to prove a conviction for the former offence. Altered as here set forth. 4. In any case when a conviction or order is required by this Part after appeal to be enforced by any justice the clerk of the court to which the appeal was had or other proper officer shall remit such conviction or order and all papers therewith sent to the court of appeal excepting any notice of intention to appeal and recognizance to such justice to be by him proceeded upon as in such case directed by this Part. Altered as here set forth. Unchanged. Sec. 897. Sec. 758. Order as to costs. STATING A CASE. Unchanged. Sec. 900. Sec. 761. Statement of case by justices for review. Any person aggrieved, the prosecutor or complainant as well as the defendant, who desires to question a conviction, order, determination or other proceeding of a Justice under this part, on the ground that it is erroneous in point of law, or is in excess of jurisdiction, may apply to such Justice to state and sign a case setting forth the facts of the case and the grounds on which the proceeding is questioned, and if the Justice declines to state the case, may apply to the Court for an order requiring the case to be stated. 2. The application shall be made and the case stated within such time and in such manner as is, from time to time, directed by rules or orders under section 576. Taken from paragraphs 2 and 3 of the old section 900. A case will not be granted upon a question of fact, but only (152) Meaning unchanged; but the form of certificate of costs not having been paid is now form 52; and the forms of distress and of commitment are forms 53 and 54. 2ND EDIT. REVISED STATUTES 1906 REMARKS upon a question of law. The question as to the weight or sufficiency of the evidence is a question of fact; (153) but a question as to whether there is any evidence at all, is a question of law. (154) The question of law to be decided, in order to be the subject of a case stated, must be one which strictly arises on the trial. (155) Only questions of law which have first been raised before the magistrate, and which are specified in the formal "case" he has stated to the appellate court, are to be determined upon a stated case. (156) Where, by rules of court a written request is required for a case stated by justices, such request must be in strict accordance with the above section 761. And where, by such rules of Court, the request in writing must be made within a limited time and must ask that the facts of the case and the grounds on which the proceedings are questioned be set forth in the case stated, a request which is in form a mere request to state and sign a case under the provisions of sub-section 2 of the above section is insufficient. Objection may be taken on the hearing of the stated case. to the invalidity of the request therefor, and, if allowed, the appeal must be quashed for want of jurisdiction. (157) In the absence, in any province, of rules of court fixing the time within which a case shall be stated under the above section, 761, the proceeding by way of stated case may be prosecuted within a reasonable time after the order or ruling in question. The time limited for appeals from summary convictions has no application to a stated case. (158) Sec. 900. Sec. 762. Recognizance by applicant for a case. — The appellant at the time of making such application, and before a case is stated and delivered to him by the Justice, shall in every instance, enter into a recognizance before such Justice or some other Justice exercising the same jurisdiction, with or without surety or sureties, and in such sum as to the Justice seems meet, conditioned to prosecute his appeal without delay, and to submit to the judgment of the Court and pay (153) R. v. McIntyre, 3 Can. Cr. Cas., 413; R. v. Lloyd, 19 O. R., 352. (154) R. v. Lloyd, supra. (155) R. v. Faderman, 1 Den., 565; Morin v. R., 18 S. C. R., 407 But see, (as to discretion of court to hear an objection not taken before the Justice), Simpson v. Locke, 7 Can. Cr. Cas., 294. (156) R. v. Nugent, 9 Can. Cr. Cas., 1. (157) R. v. Earley, (No. 2), 10 Can. Cr. Cas., 336. (158) R. v. Ferguson, 11 Can. Cr. Cas., 277; 12 Ont. L. R., 411. 2ND EDIT. REVISED STATUTES 1906 REMARKS such costs as are awarded by the same; and the appellant shall, at the same time. and before he shall be entitled to have the case delivered to him, pay to the justice such fees as he is entitled to. 2. The appellant, if then in custody, shall be liberated upon the recognizance being further conditioned for his appearance before the same justice, or such other justice as is then sitting, within ten days after the judgment of the court has been given, to abide such judgment, unless the judgment appealed against is reversed. Taken from paragraph 4 of the old section. A cash deposit cannot be accepted in lieu of recognizance on an appeal by way of stated case" from a summary conviction. The recognizance required by this section, 762 is a condition precedent to the jurisdiction of the court to hear the appeal. (159) Sec. 900. Sec. 763. Refusal to state a case. - If the justice is of opinion that the application is merely frivolous, but not otherwise, he may refuse to state a case, and shall on the request of the applicant sign and deliver to him a certificate of such refusal: Provided that the justice shall not refuse to state a case where the application for that purpose is made to him by or under the direction of the Attorney General of Canada, or of any province. Taken from paragraph 5 of the old section 900. Sec. 900. Sec. 764. Application to compel the stating of a case. Where the justice refuses to state a case, it shall be lawful for the applicant to apply to the court, upon an affidavit of the facts, for a rule calling upon the justice, and also upon the respondent, to show cause why such case should not be stated and such court may make such rule absolute, or discharge the application, with or without payment of costs, as to the court seems meet. 2. The justice upon being served with such rule absolute, shall state a case accord (159) R. v. Geiser, 5 Can. Cr. Cas., 154. |