William Feilden Craies

“ The court of appeal may make any order which it deems just as to the costs of the whole or any part of an appeal, except possibly in the case of certain appeals in matters on the crown side of the High Court, as to which some doubt still exists. ”

“ One or more of the lords of appeal in ordinary usually attend at every hearing, but the composition of the committee is very fluctuating. Appeals from the British dominions abroad lie in criminal as well as civil matters. The right of appeal is regulated as to most possessions by order in council, and in some cases is limited by imperial or colonial statute. Appeals are on fact as well as on law, but the committee rarely if ever disturbs the concurrent judgments on facts of two colonial courts. In the case of admiralty appeals from colonial or consular courts, naval assessors may be called in. ”

“ In Quebec the highest court (king’s bench) , besides its original jurisdiction, has appellate jurisdiction over the superior court (see Quebec Civil Procedure Code, art. 1114 et seq.) . The jurisdiction is exercised by writ of error or by appeal, according to the nature of the decision appealed from. The judges of the superior court have also, under art. 494, power to review before three judges decisions of a judge of that court or of a circuit court (arts. 494-504) . ”

“ In admiralty appeals the conclusions of fact reached by the trial court are specially set forth, and are final.
“Appeal” in many of the states is the general term for reviewing any judgment of an inferior court on assignments of error. It is also often used to signify a mode of reviewing proceedings of municipal bodies, affecting the interests of particular persons, e.g. in matters of licences or assessments.
In criminal prosecutions an appeal, or writ of error on points of law, is almost everywhere allowed by statute to the defendant, and often to the state. ”

“ Decisions of justices sitting in the exercise of summary jurisdiction are subject to review by a special case in which the justices state the facts found by them and their decision on the points of law, and invite the review of the appellate court on these grounds. Such cases for appeal are usually stated by consent of the justices, but in the event of their refusal the appellate court may order that a case shall be stated. ”

“ Scotland.—In Scotland the ordinary appellate tribunal for decisions of inferior courts and of the lords ordinary is the court of session, which for appellate purposes sits in two divisions. Appeals from inferior tribunals in criminal cases go before the judges of the court of session sitting in the High Court of Justiciary. The court of session was in its original constitution a committee of parliament for the performance of its judicial functions, and an appeal to parliament was consequently anomalous. ”

“ The case of Daniel O’Connell and others, brought up on writ of error from the queen’s bench in Ireland in 1844, may be said to have finally established the precedent that the judgments of the House of Lords were to be given solely by the law lords. On that occasion there was a difference of opinion among the law lords themselves. The judgment of the majority of the House was strongly against the political feeling of the government and of the peers as a body, while the law lords who carried the decision had been appointed by previous governments opposed in politics to the existing cabinet. ”

“ 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. ”

“ 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 with an enormous population which has no representative institutions it has been deemed wise to provide ample means of correcting judicial errors at the instance not only of the aggrieved person but also at the instance of the supervising judicial authorities, as a means of ensuring regularity and propriety in the conduct of judicial business by subordinate judges in out-of-the-way districts. ”

“ As regards all British possessions, the appeal to the king in council is in its origin and nature like that of the provincials unto Caesar, and flows from the royal prerogative to admit appeals. With the growth of the British empire it has been found necessary to create a comparatively constant and stable tribunal to advise the king in the exercise of this prerogative. For this purpose the judicial committee of the privy council was created in 1833. ”

“ 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. ”

“ No appeal may be heard or determined except in the presence of not less than three of the following persons:— (1) the lord chancellor; (2) the lords of appeal, four of whom are appointed under the act from among persons who hold, or have held, high judicial office, or, at the date of appointment, have been in practice for not less than fifteen years as barristers in England or Ireland, or as advocates in Scotland; (3) such peers of parliament as hold, or have held, high judicial office. ”