1836.

The KING

0. BOULTBEE.

it? (a)] If the defect be a matter of form, and the statute contains a provision similar to the clause in this statute with respect to the notice of appeal, there is no reason why the sessions may not confirm the conviction. [Lord Denman, C. J. That is another question. Where the party appealing has a knowledge of the instrument against which he appeals, as under the Poor Laws Amendment Act, it might be so held. But this is not the same case. There the appellant sees the order of removal, and the sessions might fairly say to him, "As you have not pointed out the defect in point of form in your notice, we will not discharge the order of removal for such a defect.". But how could it be so said on an appeal against a conviction, which the party has not an opportunity of seeing until he comes to the sessions] The words of this statute and those of the Poor Laws Amendment Act are nearly similar; and the hardship of the case ought not to weigh with the Court when construing this statute. [Williams, J. Suppose, in a case which a statute required should be heard by two justices, it appeared by the conviction that the hearing was by one justice only, and the notice of appeal had not stated this as a ground of appeal.] In that case it would not be necessary for the party to appeal. Here, if the act of parliament had not required the ground of appeal to be stated, the sessions might have quashed the conviction. If, in his notice of appeal, Pickering had stated that he was not guilty, that would have put in issue every thing material to the merits of the case. Assuming that if there were a defect in substance in the conviction, the sessions had authority to quash it on that ground, yet that is not the case here. In the return to the certiorari, it is stated that the conviction was quashed for want of form. The statute expressly says that no conviction shall be quashed for want of form; and therefore the sessions have exceeded their jurisdiction.

(a) Acc. M. 5 E. 4, fo. 7, pl. 15; M. 7 E. 4, fo. 16, pl. 11, fo. 22, pl. 25; Heydon's case, 11 Co.

Rep. 8 a; The Protector v. Geering, Hardres, 85, 99.

The conviction is not defective in point of form. It is absurd for the defendant to contend that a full measure of punishment has not been inflicted upon him. This is only a valid objection when urged by the prosecutor. [Lord Denman, C.J. I recollect a case in which Gibbs, C. J., directed a jury to give the plaintiff such damages as he had sustained by reason of his not being imprisoned.]

1836.

The KING

v.

BOULTBEE.

At all events, if the sessions quash the conviction for Third point: want of form, they have no power to give costs.

Lord DENMAN, C. J.-This is a very complicated case. Two rules were obtained; the one calling upon Boult bee to shew cause why the certiorari should not be quashed; the other calling on Pickering to shew cause why the order of sessions should not be quashed.

Costs.

The conviction took place under the statute 1 & 2 Will. 4, Second point. c. 32; and the defendant had a right of appealing to the sessions. That right was accompanied with the following condition :-" Provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction and seven clear days at the least before such sessions, &c., and the court at such sessions shall hear and determine the matter of the appeal, and shall make such order thereon, with or without costs to either party, as to the court shall seem meet; and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be dealt with and punished according to the conviction, and to pay such costs as shall be awarded; and shall, if necessary, issue process for enforcing such judgment." The appeal having been made to the sessions, and a notice of appeal regularly given, we are to inquire what was the "matter of the appeal." It was necessary that the notice should contain some cause and matter of the appeal. This notice contains three objections, which all relate to the merits of the case. The "matter of the appeal" was that which was stated in the

1936.

The KING

D.

BOULTBEE.

First point.

notice; and therefore the sessions were bound to inquire into the merits of the appeal according to the notice;whereas, instead of so doing, they quash the conviction for want of form. In all probability the conviction was not seen by the defendant until the hearing. It might not have been drawn up until the morning of the day of the hearing; and therefore the notice could not apply to defects in the form of the conviction. The justices have determined the appeal on what they term matter of form. Supposing it to be matter of form, the defect was cured by the statute. If the defect be matter of substance, the order would bind no one. As it is, it appears that the sessions have tried that which was not stated in the notice. The sessions have therefore taken upon themselves to do that which they had no right to do. The intention of the legislature was, that no defect in matter of form should vitiate a conviction, and that no question of fact should be tried which was not stated in the notice.

But then there is a section in the act which declares that no summary conviction in pursuance of the act, or adjudication made on appeal therefrom, shall be quashed for want of form, or removed by certiorari or otherwise into any of his majesty's superior Courts of record. The language of that section would appear, in the absence of any decisions, to deprive not only individuals, but the Crown, of any right to remove the proceedings by certiorari. But it has been repeatedly held that the Crown is not deprived of its right of removal by certiorari, by similar general language. A distinction was attempted in Rex v. Farewell, which was pressed in Rex v. Bodenham, that although the Crown itself is not deprived of the right to issue a certiorari, yet a private prosecutor is so; but this Court said, in Rex v. Bodenham, that there is no such distinction. That case has not been overruled. In Rex v. Allen it was quoted without disapprobation; and although Grose, J., and Le Blanc, J., determined that case on the ground that the case was a proceeding for penalties in which the Crown

was interested, yet Bayley, J., does not so limit his judgment or make any such distinction. After much fluctuation of opinion, it is settled that the right of issuing a certiorari is not taken away from prosecutors in general, by language similar to that contained in this act.

For these reasons I am of opinion that the sessions have done that which they were not entitled to do, and that the certiorari properly lies. The consequence will be, that the rule for quashing the certiorari will be discharged, and the rule for quashing the order of sessions made absolute.

LITTLEDALE, J.-Two rules have been obtained in this case, which have originated from the following circumstances:-Boult bee proceeded against Pickering, who was convicted before the justices under 1 & 2 Will. 4, c. 32. Pickering appealed, and the conviction was quashed. Boult bee sued out a certiorari, and obtained a rule for quashing the order of sessions. Then Pickering obtained a rule, calling upon Boultbee to shew cause why the certiorari should not be quashed quia improvidé emanavit.

1836.

The KING

บ.

BOULTBEE.

It is argued that there was no authority to grant the writ First point. of certiorari, because it is taken away by the 45th section. The words of that section are general; and the question is, whether Boult bee, who was the original prosecutor, had the right to remove the conviction by certiorari. It has been understood as law in the profession, that the Crown is not bound by a statute unless it be expressly named. In support of that general principle, several cases have been cited by my lord, which it is not necessary further to notice, as I entirely concur in what has fallen from his lordship. But it is said that those authorities do not apply, because they are cases in which either the Attorney-General applied for the certiorari on behalf of the Crown, or the Crown was directly interested. But that is not so. It is also urged that in those cases the application was made by a party for the purpose of enforcing the conviction; whereas, in the

1836.

The KING

v.

BOULTBEE.

Second point.

present case, Boultbee does not apply to enforce the conviction, but to get rid of the costs; and that therefore he stands in the character of a defendant, and in one of these rules he is called the defendant; and the proceedings are entitled Rex v. Boult bee; but this is drawing a very fine distinction. Though he is nominally the defendant, still he is in reality the prosecutor in the proceedings below; and all that the objection amounts to is this, that he is called the defendant by the course of the proceedings in this Court. Inasmuch as he is the prosecutor below, he is not, in my opinion, barred from the privilege of issuing a certiorari.

The proceedings are then before us by virtue of the certiorari; and the other rule calls upon Pickering to shew cause why the order of sessions should not be quashed. That order recites the proceedings before the court of quarter sessions, and their adjudication thereon, which is, that the conviction be quashed for want of form. By the 44th section an appeal is given, provided that within a certain period the appellant give to the complainant a notice in writing of such appeal and the cause and matter thereof, and the court of quarter sessions are to hear and determine the matter of the appeal. Here, the notice of appeal contains three grounds. Those therefore were the matters to be tried. Has the court of quarter sessions tried the matter of appeal? They have ordered that the conviction be quashed for want of form. As want of form was not mentioned as one of the grounds of appeal, the sessions have not decided the matter of appeal. It is very true that it might be impossible for the appellants to give notice of any defect of form in the conviction, as notice of appeal is to be given within three days after the conviction takes place. But this cannot affect the construction of the act. The sessions have no right to enter into the discussion of any other matter than such as is stated in the notice of appeal; and they had certainly no right to quash the conviction for want of form, when the statute expressly says that no conviction is to be quashed for that reason. They