In the intermediate time, a habeas corpus to discharge the prisoner, on the ground of a defective commitment, was obtained, returnable before a learned Judge at the Assizes at York, held in March of that year, who considered the commitment good, and remanded the prisoner.

At the trial of this action, the conviction returned to the Quarter Sessions in April was put in, and also another conviction of the same date, but transmitted to the Sessions held in June of the same year.

It was contended for the plaintiff, on the authority of the case of Chaney v. Payne, and from the terms of the 40th section of the statute, that the defendants could only rely upon the conviction returned in April, and were not at liberty to give that which was returned in June in evidence.

It was determined in Chaney v. Payne, that after a conviction is quashed for informality, another cannot be drawn up to protect the Magistrates. In that case, as in this, the conviction could not be quashed nor brought before the Court directly by the convicted party, as the certiorari was taken away; but in that case, the commitment, which recited a conviction which was returned to the Sessions, having been held bad, by reason of a defect in the conviction as truly recited, it was held to be too late for the Magistrates to draw up a second amended conviction, and that the effect was the same as if the original conviction had been quashed.

In the present case, no conviction had been transmitted to the Sessions at the time the question of the validity of the commitment was before the learned Judge at York. If, instead of remanding the prisoner, the Judge had discharged her, and the conviction had then been transmitted to the April Sessions, as directed by the statute, the case would then have resembled in circumstances that of Chaney v. Payne, and that conviction must have been taken to have been the conviction recited in the commitment and determined upon by the Judge; and another conviction subsequently drawn up and transmitted to a subsequent Sessions would not have been admissible.

The Judge, however, in this case, remanded the prisoner upon the commitment and the conviction as recited in it, before any formal conviction had been trans

mitted to the Quarter Sessions at all; nothing, therefore, had taken place equivalent to quashing the conviction, and the case is clearly, we think, distinguishable from that of Chaney v. Payne, inasmuch as it wants the circumstance which was the ground of decision in that case. We are also of opinion, that the 40th section of the statute is merely directory, and that the transmitting a conviction to the April Sessions does not preclude the right of the Magistrates to draw up and produce in evidence another conviction transmitted to a subsequent Sessions.

The remaining question then is, whether either of those convictions is good and will support the commitment. In order to support a bad commitment by a good conviction, the latter must appear to be for the same offence. If any authority were needed for such a proposition, the case of Rogers v. Lewis is directly in point. In the commitment in question the offence is stated to be "wilfully and maliciously cutting up and destroying a quantity of fruit trees in a garden in her (the prisoner's) occupation," for which she is convicted in the sum of 4l. 13s. 8d. and in 8s. 6d. for costs; and having refused to pay the fine and costs is committed to prison for one calendar month unless the fine and costs are sooner paid.

The statute 7 & 8 Geo. 3. has two sections, the 19th and 20th, applicable to the offence of "unlawfully and maliciously cutting, breaking, barking, or otherwise destroying or damaging the whole or any part" of any tree, sapling, or shrub, or any underwood-the 19th applying to injuries to the amount of 17. to trees, &c. in a garden, and the 20th to injuries to the amount of 1s. to trees, &c. growing anywhere. It has also two sections, the 21st and 22nd, applicable to the offence of "unlawfully and maliciously destroying or damaging with intent to destroy," any plant, root, fruit or vegetable production, growing in any garden (by section 21), or any cultivated root or plant, used for the food of man or beast, or for medicine, distilling, dyeing, or any manufacture (by section 22). It has also a section, the 24th, applicable to the offence of wilfully and maliciously "committing any damage, injury, or spoil to or upon any real or personal

property whatsoever, either of a public or private nature for which no remedy or punishment is thereinbefore provided."

The offence stated in the commitment is that of wilfully and maliciously cutting up and destroying fruit trees in a garden, and if the damage done were to the value of 17. would be within the 19th section (if an offence at all), and if the damage done were to the value of 1s. it would be within the 20th section.

The statute containing specific enactments and penalties for malicious injuries to the trees, where the damage is to the extent of 1s. or upwards, we are strongly inclined to think that the 24th section of the statute was not intended to apply to injuries to trees at all, and that if the injury be less in amount than 1s. it is too inconsiderable to be made the subject of prose cution. But in any view of the case, we are of opinion that the 24th section can only be applicable in case the damage is less than 1s. Both the convictions appear from their terms to have been under the 24th section, but in neither is the amount of the damage stated. The commitment also says nothing as to the amount of the damage; it is, therefore, quite uncertain under which section of the act the offence of which the prisoner has been convicted really came.

The consequences of conviction under the several sections are very different, and entirely dependent upon the amount of the damage done. We are, therefore, of opinion that the commitment and both the convictions are defective for not shewing some specified amount of damage, that it might be known for certain under what section of the statute the prisoner has been convicted. The rule, therefore, will be absolute.

Rule absolute.

BAIL COURT. 1849. Jan. 29, 30. Order of Removal-Appeal, Dismissal of-Production of Original Order-Appeal after Subsequent Removal.

THE QUEEN v. THE JUSTICES
OF PETERBOROUGH.

At the hearing of an appeal against the removal of a pauper the respondents objected that the appellants could not be heard, the original order not being produced, and no notice to produce it having been served.

The Sessions dismissed the appeal. Subsequently the pauper was removed, and the appellants appealed to the next Quarter Sessions, but the Court refused to entertain the appeal. Upon motion for a mandamus,— Held, first, that the first appeal was properly dismissed; the practice of the Court requiring the production of the original order: and, secondly, that there was no right of appeal upon the subsequent removal of the pauper.

This was a rule, calling upon the Justices of Peterborough to shew cause why a mandamus should not issue, commanding them to enter continuances, and hear an appeal of the churchwardens and overseers of Gretton in the county of Northampton, against an order for the removal of a pauper named Robert Jinks and his son William from the parish of Peterborough to the said parish of Gretton, dated the 25th day of March, A.D. 1847.

It appeared on the affidavits that the said order of removal was made on the 25th day of March, A.D. 1847. Due notice and grounds of appeal were served, and the appeal was entered at the June Sessions by the appellant parish. A copy of the order was sent with the notice of chargeability in the usual way, but in the notice of chargeability it was described as a duplicate order. At the trial of the appeal this copy being produced by the appellants, it was objected on the part of the respondents that, no notice to produce the original order having been served upon them, the copy was not admissible; and The Queen v. the Justices of Sussex (1) was relied upon in support of the objection. The appellants requested the Court to call upon the attorney of the respondents, who was also the clerk to the removing Justices, to produce the original order; but this the Court declined to do; and having inquired whether the original order was in court, and finding that it was not, they dismissed the appeal, and confirmed the order of removal. The entry was "Appeal dismissed; there being no original order in court, and there being no notice to produce the original order given to the respondents." The day after the appeal was dismissed the paupers were removed to the parish of Gretton; and notice of appeal was then given for the October

(1) 9 Dowl. P.C. 125.

sessions. When the appeal came on, the respondents objected that the appellants having once appealed, could not appeal against the removal under the order which they had already appealed against; and the Court thereupon refused to hear the appeal. The grounds of appeal against the order contained both formal and substantial objections to the order of removal and to the settlement set up in the examinations. It did not appear that the appellants had been misled by the description of the copy of the order as a duplicate. The affidavits also stated that according to the practice of the Sessions it was incumbent upon the appellants to produce the original order, or give secondary evidence thereof, after proof of notice to produce the original. This rule was obtained in last Michaelmas term, against which

Butt and Worlledge now (Jan. 27) shewed cause. There are two points made: first, that the Sessions did wrong in refusing to hear the appeal in the first instance; and secondly, that even if they did right, the removal was a ground of appeal notwithstanding the prior appeal against the order. On the first point, The Queen v. the Justices of Sussex is an express authority that the original order must be produced, and the practice of the Sessions is also to require such production. This Court will not interfere with the practice of the Sessions, unless it is manifestly unreasonable-The Queen v. the Justices of Montgomeryshire (2), The King v. the Justices of Suffolk (3). The first appeal was therefore properly dismissed. Then, is there a second right of appeal upon the removal? It is admitted that there is an option as to appealing against the order or the removal; but where an appeal is once brought and not abandoned, the appellants are precluded from any further objection. They cited The Queen v. the Justices of Middlesex (4), The King v. the Justices of the West Riding (5). The marginal note of the last cited case is, "By the 17 Geo. 3. c. 106, a power of appeal is given, on certain conditions, from a conviction by a Justice of the Peace to any Quarter Sessions to be holden within six months from such conviction. If the

appellant lodge his appeal, and the Court dismiss it without entering into the merits, because the previous conditions have not been regularly complied with, and confirm the conviction, such judgment is conclusive, and the party cannot lodge a second appeal from the same conviction, though within the six months.' They also cited The Queen v. the Inhabitants of Oundle (6).

Pashley, contrà.-The first appeal was not heard upon the merits, but disposed of upon a mere formal objection, even if the objection ought to have been allowed. He referred to The King v. the Justices of the West Riding.

[ERLE, J.-I consider the point to have been decided, and I should not think of overruling The Queen v. the Justices of Sussex.]

Then the question is as to the second appeal. The removal is a substantive grievance, and may therefore be appealed against. In The Queen v. the Justices of Middlesex it was not necessary to the decision to give any opinion as to the right of appeal, because the first appeal was there abandoned. The first appeal was not disposed of upon the merits. He cited also The Queen v. the Justices of the West Riding (7), The King v. the Justices of Staffordshire (8). Cur. adv. vult.

ERLE, J. now (Jan. 30) delivered judgment. The decision in this case depends upon whether the Justices acted upon the first appeal, according to the reasonable practice of these Courts in requiring the production of the original order. I am of opinion that they did so act, and the first appeal was therefore disposed of according to law; and the Quarter Sessions were entitled to dispose of it, after the hearing was entered upon. The right of appeal therefore having been once exercised, when that decision was given, I am of opinion that no new right of appeal has been created by the removal under the order. The rule therefore will be discharged.

Rule discharged.

(6) 3 Q.B. Rep. 353; s. c. 11 Law J. Rep. (N.S.) M.C. 79.

(7) 5 Q.B. Rep. 1; s. c. 12 Law J. Rep. (N.s.) M.C. 148.

(8) 4 Ad. & E. 842; s. c. 6 Law J. Rep. (N.S.) M.C. 155.