il -v Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nfenoRY OF JUDGE DOUQLASSBOARDMA^M FIRST DEAN OF THE BCKOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Cornell University Library KD 7309.G45 Summary and tutelary iurlsdictlon of mai 3 1924 021 724 624 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Library, 2008. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archiY,e jgrg(dgai^s^u31 924021 724624 Digitized by Microsoft® SUMMAET & TUTELAEY Digitized by Microsoft® Digitized by Microsoft® STJMMAEY & TUTELAET Under 11 & 12 Vict. c. 43, AND APPEAL FROM THE DECISIONS OF JUSTICES. BY H. STANLEY GIFFAED, OF THE rNTTEE TEMPLE, BAEEISTEE-AT-LAW. LONDON : BEEVES AND TUENEE, 100, CHANOEEY LANE; CAEEY STEEET, & 196, STEAND, 3CatD 13aa!iseIIeri3 avia ^nblfsfiers. 1878. Digitized by Microsofi® LONDON : 0. F. EOWOETH, PEINTEE, BEEAM'S BtllLDINaS, E.G. Digitized by Microsoft® PREFACE. I HAVE endeavoured as far as possible in writing tMs book to acknowledge all tbe authorities to whom I have been indebted. I wish, how- ever, to state generally my obligations to Archbold's Justice of the Peace, Greenwood & Martin's Magisterial Guide, Oke's Magis- terial Synopsis, Paley on Summary Convictions, Saunders' Practice, Snowden's Constable's Guide, Stone's Petty Sessions and Stone's (M'Kennett's Edition) Justice's Manual, Charnock's & Wood's several editions of the Police Acts, Chitty's Statutes, Leeming & Cross's Quarter Sessions, Messrs. Fisher & Harrison's Digest, and Mr. Serjeant Cox's Magistrates Cases, which last two works are respectively indicated in the following pages by the abbreviations F. & H. Dig, and Cox, M. C. I have also great pleasure in thanking Mr. Poland and Mr. Mead who have kindly aided me ia looking over the proofs. H. S. GIFFARD. 6, Pump Couet, Temple, March, 1878. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS. — ♦ — PAQE Table op Cases ix Table op Statutes xvii Intboduction xxiii 11 & 12 Vic. c. 43 1—98 Appendices : I. — ^Aebest, ,&c 101 n. — A-pp -RAT, 154 TTT. — Ttf trt.ap v AKD ALTERNATIVE JimiSDICTION . 199 IV. — Schedules — Foems, &c 221 Digitized by Microsoft® Digitized by Microsoft® TABLE OF CASES. PAQE Abergele, U. i> 185, 186 Adamson, B. r 7 Adderley, E. » 36 Allen, Ex parte 189 • n.v ,161, 180 1). Ii. & S. W. Eail. Co 142 Allison, Ex parte 73 Ee 11, 57 Alsop, Ee 113 Anonymous oases. .113, 160, 179, 180 Ansell V. ITarsliall 60 Arkle v. Hengell 164 Arrowsmitli v. Le Mesurier 102 Ashby V. White 91 Ashdown V. Curtis 167 Aslieramith v. Drury 20 Ashton, E. r 133 Aston, E. « 157 Atkins V. Kilby 83 Att.-Gen. of Hong Kong v. Kwok-a-Sing . . 147 V. Fadder 188 1). Moore 90 V. EadlofE 53 V. Siddons 29 V. Tongue 129 Attwood V. Emery 35 Aves, E. v 12, 39, 44 B. BailSy, Ex parte 57 Ee 188 Baker, Ex parte 189 V. Davis 49 BakeweU, K. ■». 96 Banks v. Groodwin 168 Barham (Inhab.), B..V 129 Barker, U. v 46 PAOB Bamett, E. «> , 69 Barret, E. « 36 Barrett, B.. v 47 Barron, E. « 38 Barton, E. f 62 Bass, E. iJ 69, 152, 182 Basten 1). Carew 4 Batoheldor, U. o 190, 191 Bateman, E. 4) 80, 81 Baynes v. Brewster Ill Beadle, E. v 82 Beckwith v. Philby 110 Bedfordshire Justices, E. v. 186 Berkley, E. » 181, 186 Bermondsey (Vestry) v. Jobnson 4 Berry, E. « 4, 5 BesseU V. WUson .... 12, 38, 42 Biggins, 'R.I) 38, 66 Binney, B,. v 79, 181 Blake v. Beech .... 3, 25, 42, 178, 187, 198 Blanshard, E. «i 194 Bleasdale, E. » 58 Boden v. Lelievre. . 178, 187, 198 BoUs, E. 4- 19 Bolton, E. «> 5, 46, 178, 181 Boothroyd, Ee 91 Bosen, Ex parte 190 Boteler, E. ® 194 Bott V. Aokroyd 61 Boultbee, E. « 180 Boulton, B..V 19, 150 Bowditoh V. Balohin 119 II. Eosberry. . 114, 121, 153 Bowdler, Ee 66 Bradford, E. ■!> 209 Bradford, Union (Guardians of) V. Wilts (Clerk of , 21,90 Digitized by Microsoft® TABLE OF CASES. PAGE Bradehaw v. Vaughton 46 Brickall, R. « 6, 148 Bright, B..V 110 Brook V. MiUiken 58 Brown, &c. (Monmouth Jns- tices), U.v 193, 194 Brown, E. f 134, 135 Budenburg v. Eoherts .... 176 Buggin V. Bennett 197 Butler V. Tarley 110 0. Callaghan v. DoUiven 165 Cambridge Union (Guar- dians of) V. Parr 128 Carey, E. u 25 Carlisle, E. v 188 Carroll v. Ewers 50 Carter, Ee 158 Cartworth, U. v 186 Carus "Wilson, Ee 191 Castle V. Burdit 36 Castro V. Murray 66 CaaweU v. Cook 176 V. Morgan 30 Cattell V. Ireson 53 Caudle v. Seymour 11 Causton, E. «> 80 Chaddock v. Wilbraham 90 Chancy v. Payne 159 Chandler, E. » 5 ■ V. Home 38 Chantrell, E. «. . . 160, 161, 187 Chapman v. Eobinson 169 Charter v. Greame 92 Cheltenham Commrs. E. i-. 182 Cheshire Justices, E. » 69 Christie v. St. Luke, Chel- sea (Guardians of) 173 Clarendon (Earl of) v. St. James's, Westminster. .. . 163 Clark, B..V 57, 80 Clarke, Ee 190 E. f 45, 60 f. Cuckfield Union" 19 Clee, E. « 28, 57, 193 Clewson v. Hubbard 54 Cobbett V. Field 66 V. Hudson 38 Codd V. Cabe 101, 148 PAOE Cohen v. HusMsson, . . ,110, 111 Cole V. Coulton 30 Coleman v. Eiohes 29 CoIlier,Ee 188 v. Hicks 38 Collins, &c. (Durhajn Jus- tices), n.v 195 Colonial Bank of Australasia V. Wman 180, 182 Cook, E. «! 48 Cook V. Montague 176 Cooke V. Bird 104 Coonagh, E. 150 Daman, E. t> 31, 93 BanieU v. PhiUips 66 Daubeney v. Cooper 38 Daunoey, Ex parte 190 Davis, Ex parte 47 . Ee 136 ■ ■E. r 101 V. Capper 5.5 V. Sorace 49, 60 Dayys v. Douglas 164 Dayman, E. r 192 Dean, E. c 57 f . King 129 Digitized by Microsoft® TABLE OF CASES. XI PAGK De Groudwin v. Lewis 104 Denbiglishire Justices, E. v. 184 Denny, 'R. v 8 V. Thwaites 7 Derbyshire Justices, B,. v. . . 182 Devonport Justices, B,. v. . . 81 Dickinson, K. » 183 Diss Urban Sanitary Autho-. rity V. Aldrich. 165 Dobbin, H. v 32 Dodson, R. » 7 DowdeU V. Australian Steam Navigation Co 60 Downing v. Capel 139 Drerecourt v. Corbishley . . 110 Druoe v. Gobb 129 Dublin Justices, R. v 168 Dugdale, H. v 146 Dunn, n.v, 189, 192 V. Packwood 39 Dutens v. Roberts 196 E. Eaton, a. V 46 Edmonds, Ex paxte 17, 177 Edmundson, E. «; 32 Edwards v. Hodges 95 Eggington, Ex parte 101, 189 V. Mayor of Lich- field 57, 93 EUershaw, Re 171, 191 Elliott V. Thompson 184 Elrington, K. «; 47 Elsee V. Smith 109 Ely Justices, R. v. . . 17, 79, 80, 81 Entick V. Carrington 105 Evans, Ex parte 184 n.v 3, 4, 12 V. Wills 71 Everton «). Liverpool Gas Co. 196 Exeter, R. j' 61 E. Fall V. Hutehings 197 Eaiongley (Inhab.), E. w. . . 129 Elannagan v. Overseers of Bishopweannouth ...... 127 Fletcher, Re 66, 93, 190 PAOE Fletcher, E. tf 178, 187, 198 Flinton, U. v. 127 Foster v. Hall 31, 46 Fox v. Gaunt 112, 113 Freeman v. Reed 35, 36, 80 Freestone, B,. v 132 Frost, R. «/ 109 G. Gaby, R. «; 19 Gage, R. V 44 Galliardj!. Laxton..73, 101, 148 Gamble, E. ji 160, 161 Garatty v. Potts 165 Gatmt, E. D 48 Gay V. Matthews 79, 81 Gelen v. HaU 41, 55, 153 Geswood, Ee 49 GiEyard, E. d 182 Glangastin Justices, R. -i). . . 176 Gloucester Board of Health V. Chandler 168 Glover v. Booth 175 Goodall, R. «) 81, 82 Goodenough, R. » 186 Gower v. Hancock 127 Grant, Ex parte 132, 133 Gray, Re 67 V. Cookson 46 Great Northern and London and North- Western Joint Committee v. Inett 175 Grece v. Himt 4 Green, R. c 69 Greenaway, E. « 24 Gieggv. Smith 129 Griffin, R. 1) 37, 84 V. Coleman 150 Griffiths V. Harris 90 V. Taylor .... 112, 113, 120, 140 E. V 151 Grimes, Ex parte 194 Groome v. Forrester 93 H. Hadley v. Perks 174 Halcott, B. V 59 Hale, B.v 59, 92 Hall, E.i- 12, 44, 128, 158 Hallyday t*. Oxenbridge .. 112 Digitized by Microsoft® TABLE OF CASES. PAGE Ham (Local Board of Health), Re 192 Hammond, Ee. R. 73 Hampshire Justices, R. ■». . . 81 Hampton, R. « 19 Handoook i>. Baker 109 Hanitay, Re 4 R. » 32 Hants Justices, R. v 75, 187 Hamvay v. Boultbie 143 Hardy «'. Murphy 110 V. Ryle 35 Haxeby Inhab., R. » 3 Hargreares v. Diddams .... 7 Harman, R. «' 183 Harris, B,. v ' 132 V. Morris 127 Harrison, R. «> 32 Hartley, Re 194, 195 - ■ V. Hindmarsh .... 47 Harwich Justices (Re Rus- sell), R. n 85 HasweU, B,. v 147 Hawker v. Field 80, 81 Hayes v. Stephenson 134 Hayward, Ex parte 45 Healey, R. f 19 Heape v. Heape 128 Heame v. Garton and Stone 52 HeUier, R. v 78 HeUingly, B,. v 159 Helps, R. ■» 58, 71 Herford, R. « 195 Hermon v. Seneschal . . 139, 141 Hester, R. « 180 Heysp, R. «) 184 Hiokijig', R. « 48 ilioks, B,. V 31 Higgins, Ex parte 197 B.i! 113 ■ — r. Guardians of Northwich Union 33 Higginson, B. v 7 Higham, B. v 159 Hill, Ex parte 191 V. Thorncroft 96 Hirst V. Molesbury 133 Hodgson, R. J) 185 Holden v. King 49 Holloway, Ex parte 62 Holmes, R. (• 132 PAGE Hob-oyd, B. v 209 Hopkms, Ex parte 183 W.Crowe 138 Hopwood, Ex parte. .5,12,42,181 Horley v. Rogers 112, 127 Hornsea, B. v 61, 176, 187 Hoseason, B. v 92 Howarth, B. v 135 Hube, B.1) ...31, 185 Hudson ». Tooth 197 Huggins V. "Ward 25, 51 Hulse, Ex parte 110 Hutohings v. Reeves 107 Hunter, R. v. _ ...57, 62 Huntingdonshire Justices, B.v 4, 8, 57, 156 Huntley, B. r 79, 80, 81 Hyde, B. v 57 I. Ilchester, Ex parte 9 Ingham, B. v 195 J. Jacomb v. Dodgson 33, , 34 Jaques Besset'a case 92 Jennings, R. k 32 Johnson, B. r 29, 32, 69 V. Colam 4 J). Coulton 103 V. Simpson 169 Jones, B. r 135 V. Gordon 38 . V. Taylor 142 Jukes, R. «• 180 K. Kaye, B. v 180 Kendall v. Wilkinson 78 Kent, R. D 93 Kent Justices, R. » 185 Re Mercer, R. v. 158 Kerby v. Denby 104 Kersey, R. I' 151 King, B.v 184 Kingston-on-Thames Jus- tices, B. r 194 KirlHTi r. Jenkins 134 129 V. HaUiwell 172 Digitized by Microsoft® TABLE OF CASES. XUl L. FAQE Labalmondiere v. Addison 33, 34 V. Ib:ost . . 5, 68 Lambarde, '&. v 165 Lancashire Justices, E. d. . . 185, 186, 195 Lannock v. Brown 103, 109 Iiawrenoe w. Hedger 110 Lee V. Gransel 103 V. Strain 175, 176 Leeds (Eecorder), E. d 157 Leeds and Bradford Eail. Co., E. V 32 Lees, Ex parte ' 189 — E. «> 189 Legg r. Pardee 7 Leicester and Compton, E. ». 9 Lester v. G-arland 35 Leverick v. Mercer 70 Lewes Justices, E. « 96 Lewis V. Eae 152 Light, E. « Ill Lindsay v. Leigh 57 Listen, E. f 178 Listowell's (Lord) Mshery, Ee 178 Little, E. V 129 V. DoneUy 167, 175 Liverpool (Eecorder of), E. V 157 Llanfillo Justices, E. v 7 Lloyd, E. 4- 59 London (CSty of) Union v. Acooks 164 London (School Board of) v. St. Mary's, Islington 165 London and North Western EaU. Co. V. Coldfield .... 162 Long, E. ■!; 61, 80, 140 Longhottom, Ex parte. .171, 191 Lovett, 'R.v 31 Lowe, Ex parte 5 Luton Local Board of Health V. Davis 7, 175 Lydeard St. Lawrence, E. v. 24 M. Macclesfield (Justices of) n.i> 170 PAQE Maohin, R. « 48 MaokaUy's case 73, 149 Major, 'R.v 60 Mallinsou, E. « 49,110 Manchester, Sheffield and Lincolnshire EaU. Co., E. ff 8 Mann v. Davers 45, 49, 50, 128 Maiden v. Porter 50 Markham, Ex parte. . . . 170, 174 Marsden, E. «< Ill MarshaU v. Smith 33, 172 Martin v. Pridgeon 6 Mason v. Barker 6 Masper v. Brown 49 Massey v. Johnson 3, 46 Master, E. 1! 33 Matthews' case 58 Ee 190 -R.v 58 V. Biddulph . .111, 112 Maude, R.f ..127, 128 May, Ex parte 166 Mayer v. Hardinge ... .4, 33, 34 Mayhew v. Wardley 31 Mead, R.v 191 Middlesex Justices, E. v., . . 36, 97, 157, 161, 182, 184, 195 MiUard, E. ■!) 12 Milner, R.v 92 Minto, Ex parte 196 MitcheU v. Foster 35, 157 Monok V. Hilton 131 Monmouth Justices (Brown, &c.), R.V 193 Moore v. Smith 175 Morant v. Taylor 4 Morden v. Porter . . ; 52 Morgan v. Brown 57 V. Edwards, .... 167, 168 V. Hedger 50 Morley, R.v 180 Morrice, R. v 184 Morris, R.v 47, 48 Moscati V. Lawson 39 Motterham v. E. C. EaU. Co 172 Mouflet V. Cole 16 Mussett, R. V 7 Myers, R. v 101 Digitized by Microsoft® XIV TABLE OF CASES. N. FAQE Nash V. Luoas 104 Neweastle-oa-Tyne Justices, B.v 157 Newell V. Van Praagli .... 71 Newman & another, B. v. Jiistioes of Grlouoestershire 165 Newman v. Baker .... 164, 175 ■ V. Bendyshe ...... 93 1". Lord Hardwiok 61, 66 Newton, Re 188 V. Chaplin 39 NichoUs V. HaU 50 Nicholson 4J. Hardwiok 110 Norton «. Pagan 127 Nmm, n.v 186 Nmmely, "R. v 8 0. O'DonneU, E. i- 151 Oldham, n. v 134 Onley v. Gee 27, 28 Oram v. Brearey 196 ■Orchad, B,. v 132 Oxfordshire Justices, E. v. 157, 195 P. Padwiok, B,. o 79 Paine, Ex parte 76 Parker v. Boughey 71 • V. Green 53 Parkes, Be 189 Partington, Ex parte 191 Payne, B. v 52 Paynter, R. 41 192, 193 Peacham, R. ji. 93 Peacock, R. v 167, 175 Pellew V. East Wauford In- hah 35 Pennell v. Churchwardens of Uxbridge 167, 168 Percy, R. «. 194 Perham, Re 6 Peters v. Cowie 128 Phipps, Re 190 Picton, n.v 66, 73 Pilgrim, R. r 158 PAGE Pollard, R.f 170 Potter V. Berry 164 Powell, U.V 200 Power V. Wigmore 167 Pratt, n.v 81, 140 Price, R. V 161 Prickett v. Greatrex 73 Priest, R.v 90 Purdey, R. v 81 Purkiss V. Huxtable 172 R. Radnorshire Justices, R.v. . . 59 Bamsden, Re 101 Rand, R. v 8 Banking v. Forbes 34 Batt V. Parkinson 45, 57 Rawnsley v. Hutchinson . . 79 Reason, R. v 4S Redding, R. v 160 Reeves v. Teates 34, 128 Reigate (Mayor of) v. Hart 22, 91 Reynolds, R.v 8 Ricardo v. The Local Board of Health of Maidenhead . . 4 Rice Jones, Ex parte 4, 5 Richards, R. v 66 Richmond Justices, R. v. . . 9 Ring, R. V 24 Roberts, R. v 151,190 V. Humby 197 r. Humphreys 49 Rochester (Clerk of tiie Peace for). Ex parte 45 Roger Aikiu's case 41 Rogers v. Jones 92 Rose, R. V 59 Routledge i\ Hislop 9 Russen v. Lucas 102 SafBron Walden, R. i) 16 St. Albans Justices, R. v. . . 181 St. James, Colchester, R. v. 186 St. James, Westminster ». St. Mary's, Battersea 172 St. Mary, Whiteohapel, R. v. 185, 186 Digitized by Microsoft® TABLE OF CASES. XV PAOE Salford (Overseers), IS,, v. .. 184 Salop Justices, B,. v 157 Sanders, E. « 70 Sanderson, H. v 209 Saunders, B.. v 73, 102 Soaife, U. i> 187 Soott, n.v 19, 58 Selwood V. Mount 8, 46, 61,62 Semayne's case 103, 104, 109 Seth Turner's case 49 Seton, E. » 90 Sevenoaks, K. v 186 Sewell D. Taylor 136 Shaokell v. West 172 Shaw V. Cliairitle Ill Shebbeare, B,. v 191 Shefaeld (Mayor of), B.v... 184 Sherlock, U.v 113, 149 ShilliTigton (Inhab.), B,.v. . . 183 Shire v. Brooks 104 Shrewsbury Justices, E. v. 35, 185 Simmonds, E. « 4, 5 Simmons v. Millingen. . 117, 120, 127 SMnn, E. «) 61 Smith, Ex parte 20, 170, 171 189, 190 E. ». . . 12, 19, 66, 81, 195 A. H.,Ee 81 • V. Pritehard 146 Somersetshire Justices, E. v. 181, 183 Sott, E. « 28 Sparrow, E. « 183 V. Impington (Over- seers) 166, 167, 170 Sperling, E. f 197 Stacey v. Whitehurst 20 Stafiordshire Justices, E. w. 31,38 Stamp V. Sweetland 58 Stanford's, Mrs., case 147 Stanhope v. Thorsby 169 Stanley v. Wharton 4 Stanton, E. i; 47, 48 Steel, E.® 178,-187, 198 Steele v. Brannan 164 ■ V. Mart 66, 73 Stephens, E. x- 29 Stinsou V. Browning 174 Stocken v. Carter 113, 114 FAQE Stoke-upon-Trent (Inhab.), E. « 161 Stokes V. Grissell 16 Stone, E. « 32 Stones V. Byron 39 Suddis, E. t) 190 Surrey Justices, E. «. . . 178, 195 Sussex Justices, B. v 184 SwaUow, E. «) 31 Sweeney v. Spooner 126 Sweetman v. Guest 32, 166 Syred v. Oarruthers 168, 171 Tarry v. Newman. .30, 31, 38, 93 Taunton, Ex parte 184 Taylor v. Humphreys .... 49, 50 Tedford, B. v 160 Terret, E. «> 180 ThoUman, E. f. , 132 Thomas, Ex parte 75 V. Alsop 127 Thompson, Ee 7, 200 E. v 52 Thornton v. Pairlie 161 Tifaeld (Inhab.), E.«) 97 Tioson, Ex parte 66 Ee 135, 190 Tollett r. Thomas 133 ToUey, E. v 36 Totnes Union, E. v 93 Tottenham Local Board of Health v. PoweU 33 Townsend v. Eead 164, 173 Treasury (Lords Commis- sioners), E. 4" 91 Tubberfield, E. « 110, 149 Tunnicliffie v. Tedd 46 Turk, B.v 186 Turner v. Postmaster Gene- ral 7, 12, 28 Tyrwhitt, B. v 4, 33 TJ. Uncles V. Att. -Gen 173 Uttoxeter, B. v 184 Digitized by Microsoft® XVI TABLE or CASES. V. PAGE Vaughan, Ex parte 8 ^.v 20 Venables v. Hardman 175 Viokery, E. » 24, 25 Visaui, E. » 131 "W. Waghom, B,. v 9 Wakefield Local Board of Health v. W. M. and Great Grrimsby EaU. Co. . . 9 Wakefield liocal Board of Health v. West Eiding EaH. Co 167 Walker, E. •;> 47, 4?, Ill V. G. W. EaHway . . 166 Walsh V. SoTithwark 83 Walters v. WiUiains 171 Wargrave, E. « 61 Warman's case 190 Warwickshire (Justices of), E. (J 156, 181 Washer f. Elliott 71 Waters, B,. v 61, 147 Watson V. Martia 133 Watts V. Justices of Kent . , 165 Webb, E. 1) 132 V. Eairmauer 36 Webster «). Watts 110 Wedaesbury Local Board of Health v. Stevenson 176 Wemyss v. Hopkias 48 West Houghton (Lihab.), E. » 161 West Eiding Justices, E. r. 17, 167 West 11. Potts 165 Westmoreland Justices, R. r. 61, 186 Weston (Lihab.), B,. v 161 Wheeler v. Overseers of Bur- mington 166 Wheeler «. Whiting 110 White V. Feast 7 Whitehead, E. « 54 Whittle V. Erankland 6 Whittles, U.v 92 PAOE Wigan «>. strange 164 WUcock, E. » 93 Wildes n. Morris 16 Wilkes' ease 76 Wilkinson ». Button 200 Williams, Ee 5 B,.v 58, 65 t . Adams 7 V. Burgess 36 -. V. East India Co. 51 WiUiamson v. BUborough . . 165 WiUmott, Ex parte 78, 159 Wmow's case 112, 113 Wilson V. Mayor of Bolton . . 32 «. Stewart 20 Winn V. Mossman 91 Winster, E. r 59 WJnton, E. v 190 Wood V. Eenwick 92 Woodhouse v. Woods . . 167, 168 Woodside, E. » 93 Wray v. Chapman 88, 91 V. Ellis 90 V. Toke 36 Wright V. Court 150, 153 V. General Omnibus Co 49 Wyatt, U.v 65, 68, 113 Wynne a. Eonaldson 167 T. Tates V. Delamayn 104 Teomans, E. » 1 64 Yorkshire Justices (E. E.), E. » 183 (W. E.) Justices, B,.v 180 Tire and Axle Co. i). Eotherham Local Board of Health 173 Toung, E. v 62 r. Higgou 35, 36 Z. Zouch V. Empsey 36, 157 Digitized by Microsoft® TABLE OF STATUTES. PAQE 1 Edw:^,^^ 2, c. 1 147 33 Hen: 8; c. 9, s. 16 50 I Mary, Sess.'2, c. 3, ss. 1 — 4 138 18 Eliz; c. 5, s. 1 97 31 EKz. c. 5; s.S 97 3 Jac. 1, c.lO; s. 1 . . 69, 75, 152 21 Jac. 1, u. 7, o. 3 6 29 Car. 2, • 0. 2, s. 7 . . : 58 0. 7, s. 1 62 s. 2 62 s. 6 . . . . 103 31 Car. 2, v;. 2 66 s. 6 146 IW. &M. c. 18 57 5 & 6 "W. & M. 0. 11 60 4 & S'Anne, o. 14 58 5 Aime, c. 14, a. 2' 36 ■ s. 4 36,58 9 Anne; e. 25 36 8 Geo. 1, c. 18, 8. 25 57 II Geo. 2, c. 19 95 ■ s. 4 4, 29, 59 12 Geo. 2, 0. 36 58 13 Geo. 2, 0. 18, s. 5 . . 184, 185 17 Geo. 2, • ■ 0. 5, s. 2 50 s. 7 92 s. 17 128 c. 38, s. 2 93 s. 4 79, 80 19 Geo. 2, 0.-21 28 ■ s. 1 58 s. 3 138 20 Geo. 2, c. 19, s. 2 92 24 Geo. 2, o. 44, s. 1 35 8. 8 35 Q_ Digitized by PAQB 27 Geo. 2, ■ 0.3....:... 75 8. 1 69 e. 20, s.-l • 97 S.' 2 . .... 97 32 Geo. 2,0. 17 ' .'.'.!.' 5 17 Geo. 3, c. 56, 8. 11 141 18 Geo. 3, c. 19 . . ; 82 8. 1 97 s. 3 97 "s. 5 97 33 Geo. 3, c. 55, s. 3 97 39 & 40 Geo. 3, 0. 89, H. 11 106, 107 o. 12 107 u. 99, 8. 14 172 8. 24 172 8. 26 30 8. 28 30 8. 29 30 . .8. 35 173 42 Geo. 3, 0. 119 90 43 Geo. 3, c. 114 92 c. 141 3, 38 52 Geo. 3, o. 93, sohed. L. r. 13 37, 38 53 Geo. 3, 0. 127, 8. 7 35 59 Geo. -3, c. 12, 8. 24 5, 7, 8 a. 25 5 c. 28 ...■ 16 3 Geo. 4, c. 23 : 97 ■ 8. 2 37, 38, 84 0. 39 36 c. 46, 8. 2 16, 177 0. 126,8. 132 117 8. 140 143 4 Geo. 4, u. 34, B. 3 6,49 Microsoft® b xvm TABLE OF STATUTES. 5 G-eo. 4, PAOB 0. 18 97 c. 83.. 50, 131, 133, 134, 136 s. 3 ....123, 126, 128, 129, 130, 147 B. 4 ..66,76,123,124, 128, 131, 132, 133, 134, 136, 136, 147, 148, 150, 157 s. 5 .... 123, 126, 148 s. 6 .... 123, 127, 136 7 aeo. 4, .;. 64 62, 155 s. 14 19 • s. 22 61 7 & 8 Geo. 4, c. 28, 8. 10 76 c. 29 105 s. 34 157 s. 39 .... 30, 38, 150 s. 71 31 c. 30 97, 143 0. 63, s. 74 24 s. 84 158 9 Geo. 4, e. 31 48 s. 27 46, 47, 79 s. 29 47 c. 61 78, 81,91, 92, 97 s. 21 63 s. 27 17, 158 s. 29 78 i>. 69, a. 1 140 s. 2 140 B. 12 139 10 Geo. 4, c. 44 69, 123 s. 7 114 s. 9 114, 153 s. 36 11, 12 s. 37 88 llGeo. 4, c. 34 73 llGeo.4&lWill. 4, c. 64.. 96 1 & 2 wm. 4, c. 32, s. 23 62 s. 30 52, 159 s. 31 140 0. 37 20 2 & 3 Will. 4, c. 120, s. 27 82 3 & 4 Will. 4, u. 53, s. 44 67 i>. 90, s. 16 Digitiz^Zy 4 & 5 WiU. 4, PAOE 0. 51, s. 19 s. 24 u. 76, 8. 82 8. 84 s. 92 8. 99. 85 .... 35 .... 158 .... 80 .... 96 .... 145 ... 33, 96 .... 96 5 & 6 Will. 4, c 60 .... .... 79 8.73 s. 78 8. 79 8. 90 l: 59 a 9 . .... 7 .... 117 .... 117 .... 61 .... 138 .... 19 e. 76, 8. 81 a. 126 6 .... 90 52 6 & 7 Will. 4, c. 37, a. 11 106, 107 c. 114 . . . i 38 a. 2 .. .... 97 1 & 2 Vic. u. 38, B. 2 . . ..131, 133, 134 c. 82, as. 12—14 . .... 147 2 & 3 Vic. 0. 12, 8. 4 . . . . . . 29 c. 47 . . . . 69, 88, 9: , 95, 123 a. 12 .... 102 8. 18 .... 148 s. 42 . . . . 49 a. 44 .... 20 a. 64 114, 120 par. 12 .... 131 8.62. . 63, 118 8. 63 .... 119 8. 64 .... 119 a. 65 . ... 119 s. 66 . 117, 120 a. 67 .... 120 ». 68 .... 121 s. 69 . . lU, 121, 163 8. 70 .... 153 >;.71 . 17, 88, 91, 95 8. 17 .... 17 s. 18 8. 19.. a. 21 102 ..11, 12 .... 12 a. 22 a. 23 8. 25 . . 24, 25 . . , . 25 .... 105 Vlicrosoft® s. 41 . . . . 29 TABLE OF STATUTES. SIX 2 & 3 Vic. PAGE 10 6 U. 71, ». 44 . 3 s. 46 . 177 B. 48 . 6,91 H. 50.. .154,155, 156 s. 56 . 155 e. 84, B. 1 . . . 170 u. XCIV 95 s. 18 . 119 11 i B. 50 . 114 3 & 4 Vic. u. 50, s. 9 . 136 s. 10 . 137 s. 11 . 137 8. 12 . 137 C. 64, a. 1 . . . 96 8. 2 . . . 96 C. 61 96 84' 88, 91 ' sJ 6 . . . 148 s. 13 . 90, 8. 66 . ..-. 95 c. 142 c. 97 ;;:.... 208 s. 13 142 8. 15 . 8. 16 . 209 90 110, 8. 16 Vic 71 6&7 c. 26, 8. 22 147 65 42 c. 75 92 c. 86, a. 27 118 a. 28 49 7 & 8 Vic. c 16, B. 41 101, a. 3 . 12 c. 5,6,78 a. 32 32, 33 a. 68 29 8 Vic. 18, B. 22 s. 39 32 8 ' c 20, B. 103 a. 104 Vic. 142 142 8&9 10 . ...... 92 18 ....... 32 20, a. 154 B. 164 87' 142 142 53 109, 8. 3 106 B. 6 3 Vic. c. 95, 106 9 & 1 '■tJlkbedlfM icros 0. 82 44, 207 8. 1 205 8. 3 206 u. 89, 8. 15 117 28 8. 29 a. 35 Sfc 12 Vic-. c. 33, 8. 3 8. 10 0.42....7, 14, 21, 48, 8. 1 8. 4 c. 43 117 6 30 11 11 9, 97 48 103 22 48 31 48 147 151 a. 10 a. 20 s. 21 3. 26 .. 1, 22, 32, 34, 41, 47, 48, 49, 58, 62, 69, 73, 79, 81, 84, 87, ■93, 97, 103 a. 1 3, 6, 8 a. 2 12, 42, 45 s. 3 11,42 a. 5 20 a. 6 22, 96, 97 a. 7 24, 25, 63 a. 8 166 s. 10 12, 28, 58 8. 11 ..32', 33, 34, 35, 36, 38, 128, 166 8. 12 ..38, 39, 45, 56 s. 14 ..12, 31, 39, 47, 48, 49, 50, 57 a. 16 ....42,71,153 8. 17 31, 93 8. 18 ..54, 61, 75, 77 «. 19 ..63, 73, 75, 77 a. 21 75 o. 22 .58, 61 8. 23.. 58, 73, 93, 102 a. 24 ..57, 61, 62, 63, 66 a. 26 76 8. 26 77 8. 27 ..58, 63, 78, 79, 81, 159 a. 29 38, 84 a. 32 57, 61 ■ a. 34 95 TABLE OF STATUTES. 11 & 12 Vic. PAGE 17 & 18 Vic. PAGE 0. 43, s. 35 . . s 36 21, 96, 97, 7£ 4£ 164 82 i; 104 8 50 164 o 9.46 .... 141 0. 44, 8. 1 . . , 61 18 & 19 Vic. 8 2 2'8','57,'75,' 42 154 c. 81 . 0. 120 .... 138 s. 6 .. .... 192 191 , 192, 193, ,194 8. 206 . .... 143 c. 63, 8. 39 . . 3S , Si c. 121, 8. 11 . .... 108 s. 69.. 32 , 33 B. 12 . .... 108 8 90 32 33 33 165 176 97 158 c. 122, 8. 13 . 8. 14 . 8.26 . 8. 73 . B. 103 . 8. 105 . 8. 250 . . . 33, 192 8 115 .... 192 8. 129 .... 164 s. 135 .... 5, 34 c. 78 .. . .... 34 c. 99, s. 10 .... 165 12 Vic. c. 16, 8. 5 .... 165 12 & 13 Vic. 81 172 c. 126 ..44, 200 c. 45 8. 2 . . . 8. 3 . . . .... .... 200 8. 1 . . .156, 158, .... 200 s. 2 .. 156, 158 8. 4 . . . .... 204 8. 5 . . . .63, 79, 81 , 92 8. 5 . . . .... 203 8.7... .......59, 158 8. 7 . . . .... 48 s. 11 .154, 160, 162 s. 8 . . . .... 205 8. 18 . 80, 187 97 8. 9 . . . 204 u. 83, 8. 10 8. 10 . .... 204 i;. 92, a. 13 . 138 0. 14 . .... 204 s. 25 . 156 a. 16 . .... 204 0. 103, s. 9 33 36 8. 22 . 8. 205 20 & 21 Vic. 205 13 & 14 Vic. 205 ' c. 21, 8.4'... C.37 207 0.43. ..82, 154, 162, 8. 1 .. 206 163 165, 166, 171, 8. 2.. 206 174 , 175, 176 c. 91, 8. 9 .. 22 8. 2.. 163,166, 169,175 14 & 15 Vic. 8. 3 .. .159,168, u. 55, o. 11 88 174, 175 . 169, 174 =. 12 88 8. 4 .. c. 99 53 8. 5 165 170, 171, 174 s. 2 . . . .24, 39, 51 , 53 8. 3 . 24, 62 , 53 s. 6... .171, 172, 174, 15 & 16 Vic. 175 c. 61, s. 3 . . 30 s. 7.. .... 173 c. 79, 8. 33 97 s. 8 . . . ,170, 171, 173, 16 & 17 Vic. 174 c. 30, s. 2 . . 17 25 8. 9 164 176 8. 9 .. s 10 .... 177 .... 173 177 .167, 177 164 u. 83 53 s 11 s. 2 .. 52 8 13 8. 3 .. 52 8 14 0. 119....... 27 107 c. 83 b. 11.. 106, 8. 1 .. 106 8. 12.. 106, 107 21 & 22 Vic. ■ c. 128, 8. 5 . . ■ • ■ 'Vf^i(iied% Vlicrosbft^ .... 94 TABLE OF STATUTES. XXI 21 & 22 Vic. PAaE c. 73, s. 5 71 s. 6 102 li. 98 34 s. 63 34 22 Vio. c. 32 82 sV27 ■ 83 ' s. 120 30 23 & '2i Vip! c. 27, s. 30 46 , , s., 40 46 c. 32, s. 2 138 s. 3 138 0. 127, s. 33 30 24 & 25 Vio. u. 61, s. 24 33 u. 81, B. 3 148 li. 94, ». 1 19 o. 3 19 0. 96 30, 155 B. 1 139 s. 33 38 s. 58 134, 151 s. 91- 19 s. 103.. 105, 113, 139, 140 s. 104 139, 143 s. 108 62 s. 110 155 • 'S. 188 82 c. 97 30, 62 s. 36 207 8. 52 7 8. 55 106 ■ 8. 57 143 8. 61- 143 8. 62. 12,28 s. 66 82 0. 98, s. 46 106 S. 62 32 c. 99, 8. 10 ■ 151 8. 27 106 8. 31 139, 141 8. 33 139 c. 100 47, 139 8. 32 207 B. 33 207 s. 38 148 8. 42..6, 30,47,49, 62 8. 43.. 30, 49, 63, 199 8. 44 . ; 47 24 & 25 Vio. PAOE 0. 100, a. 45 47, 48, 49 8. 46 47, 199 8. 66 138, 143 8. 72 148 8.-76 • 199 0. 110,- s. 4. 106 25 Vic. o. 18, s. 1 208 25 & 26 Vio. 0. 63, s. 37 .... 141 26 & 27 Vic. e.-77 ....21, 22, 96 27 & 28 Vic. c. 47, s. 6 123 0. 55, 8. 1 144 0. 101, 8. 51 34 28 & 29 Vio. ■ 0. 104; 8. 34 53 0. 127- 65, 77 29 & 30 Vio. ■ C.-39, s. 14 91 c. 64, 8. 11 130 c. 90, s. 19 33, 108 c. 117,8. 14 209 8. 15 '210 s. 16 211 8. 20 211 8. 21 145, 212 S.22 212 8. 25 213 ■8. 26 213 8.- 33 213 u. 118, 8.- 8 214 ■ 8. 9- 214 •8.- 14 214 8. 15 214 8. 16 215 s. 17 215 • 8. 18 215 8. 19 216 8. 20 216 8. 27 145 s. 32 217 8. 33 145, 217 8. 34 218 s. 39 218 8. 40 218 30 & 31 Vio. c. 35, 8. 5 63 • 8. 6 25 s. 9 63 0.141,8.16 63 31 & 32 Vio. c. 37 25 o. 52 133 Digitized by Microsoft® XXll TABLE or STATUTES. 31 & 32 Vic. PAOE c. 116, s. 1 ... 19 s. 2 .... 203 ^ 199 o S.'! ... 127 32 & 33 Vic. c. 27 ... 79 s 8 .'. .... 158 34 . . . . 93 62 . . . . 81 s. 4 .... 71 s. 4, subs. 2 .... 81 s 5 . . . . 71 10 s. 27 4 s. 49 .... 143 s. 57 .... 4 s. 103 .... 4 g 109 4 71' s 17 .... 151 RQ a S . . . . 63 33 & 34 Vic. 23, s. 3 .... 151 7S_ «_ 85 .... 31 34 & 35 Vic. c. 32, s. 3, subs. 2 .... 82 s. 3, suba. 5 .... 81 0. 78, s. 13 .... 207 c. 96, s. 3 .... 130 S.4 .... 130 S.5 .... 130 s. 13 .... 130 S.17 .... 130 B. 18 .... 130 c 104, s. 11 .... 97 c 105, s. 13 .... 106 u 108,8.7 .... 129 s. 8 .... 129 112, s. 3 .121, 122 s. 7 122 s. 15 .... 135 s. 16 .... 107 s. 17 .... 84 s. 18 .... 202 s. 19 .... 202 » 90 .... 121 35 & 36 Vio. 26, o. 2 .171,197 c 76, s. 63, par. 4 .... 24 s. 64 30 77, s. 34, par. 4 .... 24 s. 36 30 93, s. 34 .140, 141 s. 36 .... 106 8. 49 .... 141 94, s. 12, par., 2 .... 144 Digitized by 35 & 36 Vic. PAOE c. 94, s. 24 49, 60 s. 25, par. 2 Ui 8. 51, par. 4 . . 24, 49, 50, 53 36 & 37 Vic. 0. 38, s. 3 133 c. 66, s. 5 ; . . . 171 s. 34 171,191 s. 39 191 s. 47 187 0. 86, s. 24, subs. 2 50 37 Vio. 0. 4, B. 34 141 37 & 38 Vict. 0.49, B. 10 49,50 B. 14 50 B. 16 145 B. 17 106, 144 0. 86, s. 55 108 0. 96 33 38 Vic. 0. 17, 8. 73 ....106, 107 8. 78 143 8. 87 24 38 & 39 Vio. 0.25,8.6 107,141 c. 65, 8. 91 108 8. 92 108 s. 96 108 s. 98 108 8. 102 108 8. 103 108 s. 116 109 B. 118 109 8. 119 108 s. 305 165 s. 343 108 u. 60 97 ,,. 66 79, 98 u. 86, 8. 9 219 8. 17 53 0. 90, 8. 4 63 s. 9 71 39 & 40 Vic. 0. 20, s. 1 97 c. 79, a. 37 51 s. 38 31 40 & 41 Vic. c. 14, a. 1 24 0. 21, 8. 39, par. 1 ...'. 162 0. 43, 8. 1 86 a. 2 88 s. 8 86 8.10 88 IVIicrosoft® INTRODUCTION. The Summary Jurisdiotion of Magistrates is cliiefly regulated in England and Wales, exclusive (in a certaia sense) of the Metropolis, by the 11 & 12 Vic. 0. 43. Many offences are, however, exempted from the operation of this statute, so that (as was pointed out hy the late Mr. Oke in a paper read hefore the Social Science Congress in 1862) it does not create uniformity of practice. In consequence of objections taken to the system, various attempts have been made to remodel it. In 1865 a bill to consolidate the procedure, with respect both to indictable offences and summary proceedings, was introduced into the House of Commons, but withdrawn ; and ia 1871 the pre- sent Lord Chancellor brought forward the subject again. The bill, however, was dropped, and in 1877 the Home Secretary came forward with a bUl to amend the Summary Procedure, which had become peculiarly the subject of objections, based in some degree upon political considerations referring to the classes who most frequently become subject — sometimes without grave moral deliaquency — to the summary jurisdiction of magistrates. The business of the Session was, however, so impeded by untoward circumstances that though the bill Digitized by Microsoft® SXIV INTRODTTCTION. was printed, and vigorous efforts were made to push it through, it had to be withdrawn at the last moment. Below will he found the suhstance of this measure with reference to the corresponding sec- tions of Jervis's Act and analogous clauses of the hUl introduced in 1871 by Lord Gaims.* Mill of 1877. Mitigation of punish- ment hj court. mil of 1877. Scale of imprison- ment for non-pay- ment of money. Mitigation of PunisEment. 4. Wlere a court of sinmnaiy jurisdiction has autliority to adjudge any person to be imprisoned, or to adjudge any person to pay a fine, the court may, notwithstanding any enactment to the contrary, in the case of imprisonment,, impose the same mthout hard labour, and reduce the pre- scribed period thereof, or do either of such acts ; and in the case of a fine, if it be imposed as in respect of a first of- fence, may reduce the prescribed amount thereof : and where the punishment directed by this or any other act of parliament to be inflicted in respect of any offence punish- able on summary conviction, and not being by law a felony, is imprisonment, and no option of a fine is given, a court of summary jurisdiction may, notwithstanding, if the court thinks the justice of the case will be better met by a fine than by imprisonment, impose a fine not exceeding ten pounds. Of. 11 & 12 Yic. c. 43, s. 19 ; 22 Vic. c. 32 ; 28 & 29 Yic. c. 127 ; 2 & 3 Vic. 71, s. 35 (Metro- polis), and Lord Cairns' BUI, clause 49, par. 18 (1st edition) ; clause 56, par. 18 (2nd edition). Scale of Imprkonment. 5. The period of imprisonment to be imposed by a court of summary jurisdiction in respect of the nonpayment of any sum or sums of money adjudged to be paid by a con- viction or order, and the amount of which is ascertained by such conviction or order, or in respect of the default of a distress to satisfy any such sum or sums, shall, notwith- * In consequence of a difficulty in procuring sufficient copies of the 1st edition of the earUer biU the extraota have been made from the 2nd edition. Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. XXV standing any enactment to tlie contrary, be regulated by tie following scale ; that is to say, — • Theperiod of imprison- ment to be adjudged Where the sum or sums of money adjudged ™ respectof the nou- to be paid by a conviction orord^, Ind T^ n^JjS.fS"' the amount of which is ascertamed by the ?f ,f,'f^' T^"!^!^^ conviction or order *''^' "' * distress to satisfy such suiu or sums, shall not exceed Does not or do not exceed ten shillings . Seven days. Exceeds or exceed ten shillings but does not or do not exceed one pound . . Fourteen days. Exceeds or exceed one pound but does not or do not exceed five poirnds . One month. Exceeds or exceed five pounds but does not or do not exceed twenty pounds . Two months. Exceeds or exceed twenty pounds . Three months. Cf. 11 & 12 Vie. c. 43, s. 19 ; 28 & 29 Yic. c. 127; 10 Geo. 4, c. 44, s. 38 (Metropolis). See also clause 50 of Lord Caims' Bill (1st edit.), 57 (2nd edit.), which, would have extended the operation of the Small Penalties Act (28 & 29 Vic. c. 127) to sums of 50^. and upwards, for which the corresponding term of imprisonment was to he twelve months. The scale suggested differed in many respects from that put forward in the bill of 1877, heing as foUows : — Not exceeding ten shiUings . . . Seven days. :bUI of Exceeding ten shillings but not exceed- 1871. ing one pound Eourteen days. Exceeding one pound bnt not exceeding two pounds ..... One month. Exceeding two pounds but not exceed- ing five pounds Two months. Exceeding five pounds but not exceed- ing ten pounds Four months. Exceeding ten pounds but not exceed- ing fifty pounds .... Six months. Exceeding fifty pounds .... Twelve months. Payment ly Instalments. Sill of 6. A court of summary jurisdiction may allow tmie for 1877. the payment of any svim adjudged to be paid by a con- Payment Digitized by Microsoft® ^^ '"^*^^" s;xvi INTRODUCl'ION. liients of or viction or order, or direct payment to be made of any sucli security sum by instalments. taken for THe court may also accept security from any person ad- fines and judged to pay any sum. by a conviction or order, with or other sums, ^^j^q^^ g, surety or sureties, for the payment of suob sum or any instalment tliereof,,and may enforce such, security in manner provided by this act. Where any sum is directed to be paid by instalments, and default is made in the payment of any one instalment, the same proceedings may be taken as if default had been made in payment of all the instalments then remaining unpaid. The pajrment of any sum, or of an instalment of any sum, in pursuance of this section may be directed to be made at such time or times, and in, such place or places, and to such person or persons, as may be specified by the court. Of. 18 & 19 Vic. c. 121, s. 20. There is at common law no general power of ordering pay- ment by instalments. Parker v. Boughey, 31 L. J., M. 0. 272, post, p. 71. The 11 & 12 Vic. c. 43, ss. 20 — 23, and the forms of conviction printed therewith, appear to contemplate the case of place and time for payment being fixed by some special statute, or else of payment being ordered to be made forthwith. Lord Cairns' biU, however, clause 49, par. 2 (1st edit.), clause 56, par. 2 (2nd edit.), would have enabled the justice to fix the payment of any sum for penalty, costs or otherwise, either "forthwith" or "at such times as he" should " see fit to fix." And see 14 & 15 Vic. c. 93, s. 22 (Ireland). Costs included in Small Fines. Bill of 7. Where a fine imposed on any person on his conviction 1877. for any offence by a court of summary jurisdiction does Costs to te not exceed five shillings, then, unless the court for special small fine™ ^'^^-sons thinks fit to order otherwise, such fine shall be deemed to include costs, and an order shall not be made for payment by the defendant to the informant of any Digitized by Microsoft® .SUMMARY JURISDICTION AMENDMENT BILLS. XXVll costs ; and the coiirt shall, unless it t Viinlr s fit for special reasons to order otherwise, direct all fees payable or paid by the informant to be remitted or repaid to him ; the court may also order the fine, or any part thereof, to be paid to the informant ia or towards the payment of his costs. Of. 11 & 12 Vic. c. 43, s. 18 ; 2 & 3 Vic. c. 47, s. 77 ; 0. 71, ss. 44, 45. Sieepost, pp. 3, 177. Estreating Recognizances. 8. A court of summary jurisdiction may enforce pay- Bill of ment of any recognizance taken before a court of summary 1877. jurisdiction, or taken before a constable, and appearing to Estreat of the court to be forfeited where such recognizance is con- recogni- ditioned for the appearance of any person before a court ^^^'^^^■ of summary jurisdiction, or for his doing some other matter or thing-to be done in or to a court of summary jurisdic- tion, or in a proceeding in a court of summary jurisdic- tion in. the same manner as if the money payable rmder such recognizance were a fine. Where a recognizance to keep the peace, or to be of good behaviour, has been entered into by any person as principal or surety before a court of summary jurisdiction, it shall be lawful for a couxt of summary jurisdiction, upon infor- mation laid before the court and proof of the conviction of the person bound as priiicipal by such recognizance of any offence, which is in law a breach of the condition df the same, to adjudge such recognizance to be forfeited, and to adjudge the persons bound thereby, whether as principal or sureties, or any of such persons, to pay the sums for which they are respectively bound. The recognizances to which this section applies shall be dealt with in manner in this section mentioned, and, not- withstanding any enactment to the contrary, it shall not be the duty of any justices to transmit any recognizances to which this section applies to general or quarter sessions, or to certify the forfeiture of any such recognizances to general or quarter sessions. All sums paid in pursuance of the order of a court of summary jurisdiction, under any forfeited recognizance to which this section applies, shall be paid to the treasurer of the county, borough or place, for which the court of sum- mary jurisdiction acts, and shall be applied in the manner in which penalties payable to him under the Summary Jurisdiction Act, 1848, are appKoable. Of. 11 & 12 Vic. c. 43, ss. 3, 9, 13, 16, 20, 33 ; Digitized by Microsoft® XXYlll INTRODUCTION. £ia of 1877. Eegula- tions as to securities taken in pursuance of act. Power of court of summary jurisdic- tion with respect to sureties. 10 Geo. 4, e. 44, ss. 7, 9 ; 2 & 3 Yio. c. 47, ss. 70, 71 ; 2 & 3 Vic. c. 71, ss. 36, 44, 45 ; 3 & 4 Vie. c. 84, s. 8; 10 & 11 Vic. c. 89, ss. 17—19. As belonging to an analogous subject, may be con- ferred with, the above .sections clauses 18 & 20 of Mr. Cross's bill on Regulations as to Securities, and the Power of the Court of Summary Jurisdiction with respect thereto, i. e. : — 18. A person shall give security tmder this act, whetlier as principal or surety, by an oral or written acknowledg- ment of the undertaking or condition by which and of the sum for which he is bound, in such maimer and form as may be prescribed by any rule made in pursuance of this act and for the time being in force. The payment of any sum by a principal under a for- feited security given in pursuance of this act may be enforced by a court of summary jurisdiction in manner in which that court is authorized to enforce payment of a fine of like amount. The payment of any sum payable by a surety on be- half of his principal under a forfeited security given in pursuance of this act may be enforced by a court of sum- mary jurisdiction as a civil debt due from bi-m in the manner in which civil debts are directed to be enforced by sjioh court under this act and not otherwise. Any sum paid by a surety on behalf of his principal in respect of a forfeited security under this act, together with all costs, charges and expenses incurred by such surety in respect of his securily, shall be deemed a civil debt due to bun from the principal, and may be enforced by a court of summary jurisdiction in manner in which civil debts are directed to be enforced by such court under this act, and not otherwise. 20. Where any person has been committed to prison by a court of summary jurisdiction for default in finding sureties, a court of summary jurisdiction may, of its own motion, or on application made from time to time, inquire into the case of the person so imprisoned; and, having regard to all the circumstances, may, if it thinks it just so to do, reduce the amount for which it is proposed the sureties or surety should be bound, or dispense with the sureties or surety, or otherwise deal with the case as the court thinks just. With clause 18 of. Be Smith, 2 Ex. Div. 47; 46 Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. XXIS L. J. 73 ; and 32 & 33 Vic. c. 62, s. 4, and -fche same act on crown debts. We now come to what would, if passed, have proved probably the most important clauses in the biU. of last session, i. e. the clauses regulatiag — Siuamaiy conviotion with consent of parent or guardian of cMldfen. Simmaary conviction witli consent of young persons. Summary conviction witli consent of adult. Summary conviotion on plea of guilty of young person or adult. Eegulations as to indictable offences dealt mtii sum- marily. Costs of prosecution of indictable oifences dealt -with summarily.' Trial by jury in ofiences triable summarily; and Appeal. Summary Conviction with consent of Parent, 8fc. 9. Where a cidld is charged before a court of summary jurisdiction -with any indictable offence other than homi- cide, the court if it thinks it expedient so to do, and if the parent or guardian of the child so charged when informed by the court of his right to have the child tried by a jury consents to his being tried summarily, may deal summarily with the offence, and inflict the same de- scription of punishment as might have been inflicted had the case been tried on indictment: provided as follows: — (1.) That a sentence of penal servitude shall not be passed, but imprisonment be substituted there- for; and (2.) That in the case of imprisonm.ent, the term awarded shall not in any case exceed one month; and (3.) That in the case of a fine, the amount awarded shall not in any case exceed forty shillings ; and (4.) That when the child is a male the court may, in- stead of any other punishment, order the child to be, as soon as practicable, privately whipped with not more than six strokes of a birch rod by a constable, in the presence of an inspector or other officer of police, and also in the presence, if he desires to .be present, of the parent or guardian of the child. For the purpose of informing the parent or guardian of his right to have the child tried by a jury in the case of Digitized by Microsoft® Bdl of 1877. Summary conviotion with con- sent of parent or guardian of children. XXX INTRODUCTION. an indictable offence, the eoiirt of summary jurisdiotion shall, at tlie conclusion of the case for the prosecution, address a question to such parent or guardian to the fol- lowing effect: " Do you desire the child to be tried by a jury, or do you consent to the case being dealt with summarily?" with a statement, if the court think such statement desirable for the information of the person to whom the question is addressed, of the meaning of the case being dealt with summarily, and of the assizes or sessions (as the case may be) at which the trial will be held if the case is tried by a jury. Where the parent or guardian is not present when a child is charged with an indictable offence before a court of summary jurisdiction, the court may, if it thinks it just so to do, remand the child for the purpose of causing notice to be served on such parent or guardian with a view so far as is practicable of securing his attendance in court, or the court may deal with the offence as an indict- able offence. The expenses o:^ the summary prosecution of an indict- able offence under this section shall, if the offence be one the expenses of the prosecution of which would otherwise have been payable out of the local rate, but not to a, greater amount in any one case than forty shillings, be payable in manner in this act provided in cases where an indictable offence is dealt with summarily in pursuance of this act. This section shall not prejudice the right of a court of summary jurisdiction to send a child to a reformatory or industrial school. This section shall not render punishable for an offence any child who is not, in the opinion of the court before whom he is tried, of sufficient age and capacity to commit crime. If upon the hearing of any charge against a child in respect of any offence triable under this section or other- wise punishable on summary conviction, the court of summary jurisdiction thinks it inexpedient to inflict any punishment, that court may dismiss the child either un- conditionally or conditionally on his finding a surety or sureties for good behaviour. A child shall not, on summary conviction for any offence under this act or any other act of parhament, be imprisoned for a longer period than one month, or be fined a larger sum than forty shillings. Summary 10. Where a young jjerson is charged before a court of conviction summary jurisdiction with any indictable offence specified wim con- m the first schedule hereto, the court, if it thinks it ex- Digitized by Microsoft® SUMMARY JUEISmCTION AMENDMENT BILLS. XXSl pedieat so to do, and if the young person charged with sent of the offence, when inlortned by the court of his right to he young tried by a jury, consents to be tried summarily, may deal person, summarily -with the offence, and in its discretion adjudge such person, if found guilty of the offence, either to pay a fine not exceeding three pounds, or to be imprisoned, •with or without hard labour, for any term not exceeding three months ; and if the young person is a male, and, in the opinion of the court, under the age of fourteen years, the court, if it thinks it expedient so to do, may, either in substitution for, or in addition to, any other punishment under this act, adjudge such young person to be privately whipped with not more than twelve strokes of a birch rod by a constable, in the presence of an inspector or other officer of police. Por the purpose of informing a young person of his right to be tried by a jury under this section, the court shall, at the conclusion of the case for the prosecution, address a question to such young person to the following effect :-t- " Do you desire to be tried by a jury, or do you consent to the case being dealt with summarily ?" — with a statement, if the court think such statement desirable for the infor- mation of the young person to whom the question is ad- dressed, of the meaning of the case being dealt with sum- marily, and of the assizes or sessions (as the case may be) at which the trial will be held if the case is tried by a The expenses of the prosecution under this section shall, if the offence be one the expenses of the prosecution of which would otherwise have been payable out of the local rate, be payable in manner in this act provided in cases where an indictable offence is dealt with summarily in pursuance of this act. If upon the hearing of any charge against a young per- son in respect of any mdiotable offence specified in the first schedule hereto, or in respect of any offence punishable on summary conviction, the court of summary jurisdiction tMnks it inexpedient to inflict any punishment, that court may dismiss the young person either imconditionaUy or conditionally on his finding a surety or sureties for good behaviour. 11. Where a person is charged before a court of sum- Summary m.ary jurisdiction vrith any indictable offence specified in conviction, the second schedule hereto, the court, if it thinks it expe- 'with con- dient so to do, and if the person charged with the offence, ^I'^t when informed by the court of his right to be tried by a jury, consents to be tried summarily, may deal summarily with the offence, and adjudge such person, if found guilty Digitized by Microsoft® xxxu INTRODUCTION. Summary conviction on plea of guilty of young person or adult. of the ofience, to be imprisoned, -with or without hard labour, for any term not exceeding three months. Por the purpose of informing a person of his right to be tried by a jury under this section, the court shall, at the oonclusion of the case for the prosecution, address to such person a question to the following effect : — "Do you desire -to be tried by a jury, or do you consent to the case being dealt with summarily?" — with a statement, if the court think such statement desirable for the information of the person to -whom the question is addressed, of the meaning of the case being dealt with summarily, and of the assizes or sessions (as the case may be) at which the trial will be held if the case is tried by a jury. The expenses of the prosecution under this section shall, if the offence be one the expenses of the prosecution of which would otherwise have been payable out of the local rate, be payable in manner in this act provided in cases where an indictable offence is dealt with summarily in .pursuance of this act. If upon the hearing of any charge against a person in respect of an indictable offence specified in the said second .schedule hereto, the court of summary jurisdiction thinks .it inexpedient to inflict any punishment, that court may dismiss such person either unconditionally or conditionally on its finding a surety or sureties for good behaviour. This section shall not apply to the case of a child or young person. 12. Where any person is charged before a court of summary jurisdiction with any indictable offence specified in the said first schedule hereto, and the evidence on the conclusion of the case for the prosecution is, in the opinion of such court, sufficient to put the person charged on his trial for the offence with which he is charged, and the case .appear to the court to be one which may properly be dealt ■jvith summarily, and may be adequately punished by virtue of the powers of this act, in any such case as aforesaid the court shall reduce the charge into writing, and shall read it to the person charged, and shall then ask him whether he is guilty or not of the charge; and if such person says that he is guilty, the court shall thereupon cause a plea of guilty to be entered upon the proceedings, and adjudge him, if a young person, or if the offence be one specified in the second schedule hereto, to any punishment which might have been adjudged to him in pursuance of this act if he had consented to be tried summarily in manner in this act mentioned ; and in any other case may adjudge him to be imprisoned, with or without hard labour, for any term not exceeding six months. Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. xxxm Tie court, before asking, in pursuance of this section, the person charged -whelier he is guilty or not, shall explain to him that he is not obliged to plead or answer, and that if he do not plead or answer, he will be dealt with in the usual course. The_ expenses of the prosecution under this section shall, if the oflence be one the expenses of the prosecution of which would otherwise have been payable out of the local rate, be payable in manner in this act provided in cases where an indictable offence is dealt with summarily in pursuance of this act. This section shall not apply to a child. The clauses of Lord Cairns' bill dealing with the ahove topics were 75 — 78 (1st edit.), 85 — 88 (2nd edit.), and the effect of both bills, but more particularly of the Sunimaxy Jurisdiction Amend- ment Bill, was to extend in an important degree the paternal operation of the acts, printed in Appendix III. (j?os^), imder the title "Tutelary and Altematiye Jurisdiction." The order of procedure in such cases would have been regulated under the Summary Jurisdiction Amendment Bill (1877), by clause 21, which ran as follows : — 21. Where any indictable offence is under the circum- stances in this act mentioned authorized to be dealt with summarily, the procedure shall, until the conclusion of the case for the prosecution, be the same in all respects as if the oflence were to be dealt with throughout as an indictable oflence, but when and so soon as the court assumes the power to deal with such offence summarily, the procedure shall be the same from and after that period as if the oflence were an oflence punishable on summary conviction and not indictment : Provided as follows, — (1.) The court may m.ake the Hke order for the restitu- tion of property in any case as might have been made by the court before which the person con- victed woTold have been tried if he had been tried on indictment ; and The conviction shall contain a statement as to the con- sent in the case of a child of his parent or guardian, andPifl/f^se' ImMiaii^sisftf other person, G. C Mil of 1877. Eegula- tions as to indictable offences dealt with summarily. XXXIV INTKOBUCTION. MU of 1877. Cost of prosecu- tion of in- diotaWe offences dealt with summarily. of such person, to be tried by a court of sum- mary jurisdictioii : Together "witt the conviotion required to be lodged with the clerk of the peace in pursuance of the Sum- mary Jurisdiction Act, 1848, there shall be trans- mitted to and filed by such clerk in each case the written charge or written information, and the depositions of the witnesses and the statement, if any, of the accused. Cf. 11 & 12 Yic. c. 43, s. 14. The question of costs in the ahove case was provided for (by clause 22) as follows : — 22. Where an indictable ofEence (the expenses of the prosecution of which would otherwise have been payable out of the local rate) is dealt with summarily in pursu- ance of this act, the court may, if it thinks fit, grant to the person who preferred the charge, or appeared to prose- cute or give evidence, a certificate of the amount of the compensation which the court deems reasonable for his expenses, trouble, and loss of time therein, subject, never- theless, to such regulations as may be from time to time made with respect to the payment of costs in the case of indictable oflences, and the amount named in the certifi- cate may include the fees payable to the clerk of the court of sununary jurisdiction, and the fees payable to the clerk of the peace, for filing the conviction, deposi- tions, and other documents required to be fided by him under this act and such other expenses as are by law payable when incurred before a commitment for trial, and every certificate so granted shall have the effect of an order of court for the payment of the expenses of a prose- cution for felony, made in pursuance of the act of the seventh year of King George the Pourtii, chapter sixty- four, intituled " An Act for improving the administration of criminal justice iu England," and the acts amending the same, and the compensation allowed by such certifi- cate shall be paid in Hke manner as the costs, specified in such order, would have been paid. In connection with the above, cf. 11 & 12 Vic. c. 43, s. 18, and (Metropolis) 2 & 3 Yic. c. 47, s. 77, and 2 & 3 Yic. c. 71, ss. 44, 45, post, pp. 3, 177. It has been frequently made a ground of com- plaint by Wi^kmfMlMofm a class of offences SUMMARY JURISDICTION AMENDMENT BILLS. XXXT arising often out of trade contracts, trespass, and poaching, the prisoner should, except in cases of unusual gravity, be tried by a gentleman whose social position is represented as likely to impair his impartiality. It was probably with regard to this objection that the following clause (13) was included in the bill of last session. Any person when charged before a court of summary Sill of JTirisdiction with any offence in respect of the commission 1877. of which he is liable on summary conviction to be im- Trial by prisoned for a term exceeding three months, may, on jury in case appearing before the court and before the charge is gone £^°S^'"'^^ into but not afterwards, claim to be tried by a jiuy, and s^Qunarilv thereupon the court of summary iurisdiction shall deal with the case in all respects as if the accused were charged with an indictable offence and not an offence punishable on summary conviction, and the offence shall as respects the person so charged be deemed to be an indictable offence, and shall be prosecuted accordingly, and the ex- penses of the prosecution shall be payable as in cases of felony. A court of summary jurisdiction, before the charge is gone into in respect of an offence to which this section applies, for the purpose of informing the defendant of his right to be tried by a jury in pursuance of this section, shall address biTn as follows, or to the Kke effect: " Tou are charged with an offence in respect of the commission of which you are entitled, if you desire it, to be tried by a jury, do you desire to be tried by a jury, or do you con- sent to the case being dealt with summarily ?" — ^with a statement, if the court think such statement desirable for the information of the person to whom the question is addressed, of the meaning of the case being dealt with summarily, and of the assizes or sessions (as the case may be) at which the trial will be held if the case is tried by a Another change which might be regarded as Appeal intended to mitigate the severity with which the summary jurisdiction of justices is alleged to press upon the classes most commonly subject to it was proposed in the clauses giving an appeal in all Digitizes by Microsoft® XXXVl INTRODUCTION. Bill of 1877. Appeal from sum- mary con- viction to general or quarter sessions. cases in whicli magistrates are empowered to pass immediately a sentence of imprisonment. It wiQ be seen by reference to Appendix II. p. 154, tbat within the metropolitan police district this privi- lege already exists wherever a sentence of a certain degree of severity is passed; but in general ap- peal (as distinguished from a "case" under 20 & 21 Yic. c. 43) only exists where it is given by the particular act proceeded under. It was to have been extended to all cases (as above limited) by the following clauses of the Summary Jurisdiction Amendment BiU of 1877. Appeal from Summary Jurisdiction to General or Quarter Sessions. 14. Where, in pursTiance of this act, or of any act of parliament passed before or after the commencement of this act, any person is sentenced to imprisonment by a court of summary jurisdiction as a punishment for his oflence, or for refufiing to do or to abstaiii from doing any act or thing reciuired to be done or left undone other than the payment of money, and not in respect of the non-payment of a fine or other sum of money, and such person is not otherwise authorized to appeal to a court of general or quarter sessions, he may appeal to a court of general or quarter sessions against such sentence. Procedure on Appeal. 24. Where any person is authorized by this act or any act of parhament passed after the commencement of this act to appeal from the decision of a court of summary jurisdiction to a court of general or quarter sessions, he may appeal to such court, subject to the conditions and regulations f oUowing : (1.) The appeal shaU. be made to the prescribed court of general or quarter sessions, or if no court is prescribed, to the next practicable court of gene- ral or quarter sessions having jurisdiction in the county or place in which the decision of the court was given, and holden not less than twenty-one days after the day on which such decision was given; and Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. XXXVii (2.) The appellant shall, witliia the prescribed time, or if no time is prescribed witMa ten days after tbe day on whicli decision of tbe court was given, give notice to the other party and to the clerk of the court of summary jurisdiction of his inten- tion to appeal, and the general grounds of such appeal; and (3.) The appellant shall, vsithin the prescribed time, or if no time is prescribed within three days after the day on which he gave notice of appeal, enter into a recognizance before a court of summary jurisdiction, with or without a surety or sureties as the court may direct, conditioned to appear at the said sessions and to try such appeal, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court, or the appellant may, if the court thinks it ex- pedient, instead of entering into a recognizance, give such other security, by deposit of money with the clerk of the court of summary jurisdic- tion or otherwise, as the court deems sufficient ; and (4.) Where the appellant is in custody a court of sum- mary jurisdiction may, if it thinks fit, on the appellant entering into such recognizance or giving such other security as aforesaid, release him from custody ; and (5.) The court of appeal may adjourn the hearing of the appeal, and upon the hearing thereof may confirm, reverse, or modify the decision of the court of summary jurisdiction, or remit the matter to the court of simimary jurisdiction with the opinion of the court of appeal thereon, or make such other order in the matter as the court thinks just. The court of appeal may also make such order as to costs to be paid by either party as the court thinks just ; and (6.) Whenever a decision is reversed by the court of appeal the clerk of the peace shall indorse on the conviction or order appealed against a memo- randum that such conviction or order has been quashed, and whenever any copy or certificate of such conviction or order is made, a copy of such memorandum shall be added thereto, and shall be sufficient evidence that the conviction or order has been quashed in every case where such copy or certificate would be sufficient evidence of such conviction or order; and Digitized by Microsoft® XSXVIU INTRODUCTION. (7.) Every notice in writing required by this seotion to be given by an appellant may be signed by bim, or by bis agent on bis bebalf, and may be trans- mitted in a registered letter by tbe post in the ordinary way, and sball be deemed to have been •served at the time when it would be delivered in the ordinary course of the post. Appeal Lord Cairns' bill, which was to have been a uaderLord ti i- n t j. t Cairns' Consolidating as well as an amending act, consoli- dated the existing procedure under 20 & 21 Yio. c. 43, and added provisions for appeal to quarter sessions, adopting the principle already recognized in 2 & 3 Yie. c. 71, s. 50 ; i. e. making the right of appeal dependent upon the amount of the fine or length of the term of imprisonment imposed, and including also (except where the particular act proceeded under declares that the decision of the justices shall be final) all cases where an order should be made for estreating any recognizance to a greater amount than 20/., but not, Kke the bill of last session, giving the right in all cases where the personal liberty is immediately infringed. The following are the clauses of the bill (2nd edit.) which would have dealt with this part of the sub- ject :— Sill of 64. In the cases liientioned in this section the parties 1871. respectively shall be entitied to appeal against the decision Two modes of any justice m either of the two following modes (but of appeal- not both); that is to say, SciST* f-^') ^^® defendant in every case in which he is now by allowed in l^'W' entitled to appeal to the court of general or certaia quarter sessions of the peace against such deci- cases: sion, and the complainant in every such case vSc 43 whose complaint is dismissed, and also the de- g^ 14-1' ' fendant in all other cases where the decision in -^jjg^ J any case of summary conviction adjudges pay- quarter" ™®'^*' °* ™y. penalty exceeding five pounds, or sessions. ^^7 ^^^^ of imprisonment exceeding one month, Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. SXXIX or sucH decision takes place before one justice only, or where any order is made under tlds act for the estreating of any recognizance to a greater amount than twenty pounds (but in no other case), shall (unless iu the last-mentioned oases the particular act shall expressly enact that the adjudication or determination of the justice shall be final and conclusive) be entitled to appeal on the facts or law, or both, to the next court of general or quarter sessions which shall be holden not less than twenty-one days and not more than toTii months after the day of such decision being made for the coimty or place wherein the same was made. 65. Such appeal to the general or quarter sessions shall be subject to the following conditions and regulations (whether the same or other condititions or regulations shall, in the cases wherein an appeal is already allowed, be contaiaed in the act allowing such appeal, or in any other act, or not). (1.) The appellant shall serve notice in writing of his intention to appeal, and of the grounds thereof, upon the clerk to the convicting justices, not later than the fourth day after the date of the decision against which the appeal is made: (2.) He shall also, within three- days after service of such notice, enter into a recognizance before some one justice, with two solvent sureties, to be approved by such justice, conditioned per- sonally to prosecute and try such appeal, and to abide the judgment of the court, and to pay such costs as shall be awarded by the court; and such recognizance shall be of such reasonable and sufficient amount as the justice shall see fit; or if the appeal be in any case where payment only is ordered, the appellant shall, in Heu of such sureties, deposit with such clerk such a sum of money as such justice shall deem sufficient to cover the sum ordered to be paid, together with the costs of the appeal, which deposit shall be retained by such clerk untO. he shaE be further directed as to its application: (3.) Whenever the appellant shall have given such notice, and entered into such recognizance, or made such deposit, there shall be delivered to him the form of appeal, containing a certificate of the decision against which he appeals (signed by such clerk) ; and it shall also be therein certi- Prooedure oa appeal to quarter sesBions. Notice to he given within four days. [M & 15 Vio. 0. 93, s. 24. 24&25Vic. 0.96, s. 110.] Recog- nizance to prosecute appeal. Deposit of money in lieu of recogni- zance of surety. Form of appeal to be given to appellant. Digitized by Microsoft® xl INTRODUCTION. Justices may hmi over wit- nesses to support decision in certain [5 Geo. 4, c. 83, s. 9. 8 & 9 Vic. c. 109, s. 20. 2 & 3 Vic. 0. 71, s. 50. 16&17Tic. c. 119, s. 13. 17 & 18 Vic. c. 38, s. 10. 9 Geo. 4, c. 61, s. 28. 1 wm. 4, c. 64, s. 16. 23 Vic. 0.27,8.34.] 7 Geo. 4, 0. 64. fied by sucli clerk that the said notice was duly- given, and that the said recognizance was duly entered into, or such deposit made, if the fact shall he so; and if the appellant is iu custody he shaU he liberated, as in this part of ^ this act is provided in respect to enforcing decisions of jus- tices : (4.) The convicting justice, after the notice of appeal and recognizance have been given and entered into against any decision for any oflence under the acts relating to vagrants, larceny, malicious injuries, offences against section forty-three of the act of the session of the twenty-fourth and twenty-fifth years of her Majesty, chapter one hundred, the acts relating to betting houses, gaming houses, alehouses, beerhouses, or re- feeshment houses, or any decision of a metro- politan police magistrate in any case of su m mary conviction, may, if he think fit, require by sum- mons or verbally the respondent, the constable by whom the defendant was apprehended, and any person who shall have been examined on the hearing of the complaint, and whose evi- dence shall appear to such justice to be material to support the decision appealed against, to be bound in sufficient recognizances to appear and defend the appeal, and be examined at the hear- ing thereof; and in case any person shall refuse to enter into such recognizance the justice may commit such person to gaol, .there to remain until he shall enter into such recognizance or shall be otherwise discharged by due course of law; and every such person, on producing the notice of such his recognizance, signed by the justice, shall be allowed compensation for his time, trouble, and expenses m defending and attending the appeal, to be ascertained by the sessions, which compensation shall be paid in the first instance by the treasurer of the county or place in like manner as in cases of misdemeanor under the provisions of the act of the seventh year of King George the Fourth, chapter sixty- four, and of any act amending the same; and in case the appeal be dismissed and the decision confirmed the amount of such compensation shall be repaid to the said treasurer by the appellant, and recovered as and with other costs, as hereinafter provided : , Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. xli (5.) la every case wliere an appeal is so made the clerk to tlie justices shall transmit a duplicate of the form of appeal, and copies of the proceedings in such case, to the clerk of the peace of the county or place, at least seven days before the commence- ment of the sessions to which the appeal is made, or as soon afterwards as may be practicable; and such clerk to the justices shall also dehver or send by post or otherwise to the respondent or his attorney notice of such appellant having perfected such recognizance within three days after the same shall have been done: (6.) The appellant shall (rmless he shall have abandoned his appeal, and previously given notice thereof to the justice or the clerk to the justices and the respondent, and paid the sums, if any, adjudged to be paid by such appellant, and also the costs of the respondent incurred by reason of such ap- peal, such costs being taxed by such clerk,) give notice in writing to the respondent of his inten- tion to prosecute his appeal, specifying therein the grounds thereof, at least fourteen clear days before the commencement of the sessions to which the appeal shall be made, and which notice may be sent by the post in the ordinary way ; but it shall not be lawful for the appellant on the trial of the appeal to go into or give evi- dence of any ground of appeal besides those set forth in such notice: (7.) Whenever an appeal is so made, and such last- mentioned notice has been duly given, the ses- sions may entertain the same, and confirm, reverse, or modify the decision made by the justices (as so certified in such form of appeal), and may award to either party such sum as they shall think fit for the costs of such appeal ; and whenever the sessions shall decide any such appeal the clerk of the peace shall certify such decision, and the amount of costs ordered to be paid by either party, at the foot of the form of appeal ; and whenever any such appeal has not been duly prosecuted, the clerk of the peace shall, in Kke manner, certify such non-prosecution of the appeal, and the amount of costs, if any, ordered to be paid by the appellant to the respondent, and such clerk shall return such form of appeal with such certificate respectively Copies of proceed- ings to he trans- mitted to clerk of the peace. Appellant to give notice to opposite party. [12 & 13 Vio. c. 45, S.I.] Court of quarter may decide appeal, and give costs. Clerk of peace to certify de- cision to justices clerk ; or certify upon and return recogni- zance if Digitized by Microsoft® ttKi INTEODUCTION. appeal is not prose- cuted. Provisions of 12' & 13 Vic. c. 45, ss. 3, i, 7, 8 and 9 to apply to this appeal. If con™- tiou, &c. reversed deposit to . be re- funded to appellant. Notices may te signed by attorney of appellant. [12 & 13 Vic. 0. 45, S.I.] 1st ed. 11 & 12Vic. c. 43, s. 27. mil of 1877. Case from quarter sessions without certiorari. to the clerk to the justice of the sessional divi- sion or place or part of a division at -wMcli the decision was made, within seven days after such appeal is decided, or after the termination of the sessions at which such appeal ought to have been prosecuted : for the purpsse of these enactments the provisions of sections 3, 4, 7, 8, and 9 (but no others) of the act of the session of the twelfth and thirteenth years of her Majesty, chapter forty-five, shall apply to appeals imder this section, except that any costs and charges ordered by the sessions to be paid shall be re- covered as in this part of this act is provided for enforcing judgments made on appeals : (8.) Whenever it shall appear from such certificate that the original decision has been reversed, any jus- tice may verbally order the clerk to the justices to refund to the appellant the money so deposited by hiTTi as aforesaid : (9.) Every notice in writing required by this section to be served or given by an appellant shaE be signed by him or by Ms attorney on his behaK. In the 1st edition the analogous clauses were numbered 55, 56. In addition to the advantage of simplicity, either of these two biUs would have effected one important change in matters of appeal. It has been decided that, except where expressly provided by statute, an appeal does not operate as a stay of execution. See ISx parte Willmott, 30 L. J., M. C. 161 ; Kendall v. Willdnson, 4 E. & B. 680 ; 24 L. J., M. C. 89 ; 11 & 12 Vic. c. 43, s. 27, note ; see post, p. 78. It appears however that this would have been substantially effected under pars. 3 and 4 in clause 24 of Mr. Cross' bill, and pars. 2 and 3 in clause 65 of Lord Cairns' bill. 28. A writ of certiorari or other writ shall not be re- quired for the removal of any conviction, order, or other determination in relation to which a special case is stated Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. xliil by any couifc of general or quarter sessions for obtaining tne judgment or determination of a superior court. Another important change, founded possihly Proof by ,1 . J. ,1 T J. XI c. 11 a^davitof upon tne experience oi the working oi the iSmaU, service of Debts Act (9 & 10 Vic. c. 95, ss. 61, 62), was p™"'''" allowing service of process to he proved by affi- davit, thereby obviating the necessity of constables being taten from their duties merely to prove such service. This was adopted by both bills, as follows : — Me. Cross' Bill. 39. In any proceeding ■witbin tbe iurisdiction of a court of summary jurisdiction, service on any person of any summons, notice, or otber process or document required or authorized to be served may be proved by affidavit purporting to be sworn before any justice of tbe peace, or any commissioner to administer oatbs in tbe Supreme Court of Judicature, or any clerk of tbe peace or any registrar of a county co.urt, and any sucb a£B.davit shall, until tbe contrary be sbown, be taken to be sufficient proof of tbe statements contained therein, and shall be received in evidence in any court of summary jurisdiction, or in any otber court of justice, or in any legal proceeding, ■without proof of the signatures or of the official character of the person or persons taking or signing the same, and the fee for taking such' affidavit shall be such sum, not exceeding one shilling, as may be directed by rules made in pursuance of this act, and any such fee shall be costs in the matter or proceeding to which it relates. Lord Cairns' Bill. Clause 25, par. 5 (2nd edit.), clause 24, par. 5 (1st edit.). Where service of summons is effected at such distance as last mentioned, and also in cases where the person who shall have served the same shall not be present at the bearing of the complaint, the service may be proved, if the justices shafl. think fit, by a statutory declaration, purporting to be made before any justice, clerk to justices, or any registrar of a county court (who are hereby authorized to take such declaration); Digitized by Microsoft® xliv INTEODUCTION. and the fees for preparing and taking eucli statutory declaration shall, -with, the fee for such service, be deemed to be costs incurred by the complainant, and be recoverable as such. 11 & 12 Vic. 0. 43, s. 1. Warrants executed without tacking. Under Lord Cairns' bill, clause 25, par. 2, ser- vice might have been effected at the defendant's place of business. See 11 & 12 Yic. c. 43, s. 1. Lord Cairns' biU also contained clauses pro- viding that all justices' warrants might be exe- cuted anywhere in England without being indorsed where executed, as those of the metropolitan police magistrates may now be under 2 & 3 Vic. c. 71, s. 17 {post, p. 17), and as enacted in the Scotch Summary Procedure Act, 1864 (27 & 28 Vic. c. 53, s. 8). These clauses were as follows : — Bill of . 1871. 2nd ed. 111. With respect to the persons to whom warrants shall be addressed, the following provisions shall have effect : (1.) Warrants to arrest or to distrain for penalties or other sums than for local rates or taxes may be addressed to any constable or other person than the complainant, by name, or generally to the constable of the parish or other district in which the same is to be executed, without naming him ^whether such parish or district be withm the justices' jurisdiction or not), or to such constable, and aE other constables within the county or place with in which the justice issuing such war- rant has juiisdiction, or generally to all the constables within such last-mentioned county or place : (2.) Warrants of commitment to prison shall in all cases be addressed to the constables of the con- stabulary force of the county or place, and to the kee;per of the gaol, withiu which the justice issmng such warrant has jurisdiction: (3.) Warrants of distress for local rates or taxes shall be addressed to any constables and to the persons to whom such rates or taxes are payable, and to the collector of such rates or taxes. Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. xlv 113.— (2.) Every warrant may be executed anywhere by tbe person to wbom it is addressed, or, if addressed generally to all constables of the county or place ■within ■wMoh the justice issuing such warrant has jurisdiction, then by any one or more of such constables : (4.) Where any warrant is addressed to the constables of any parish or district out of the jurisdiction of the justice issuing such warrant, any super- intendent of pohce or other constable shall, if so directed by the justice signing such warrant, transmit it to the constables where it is to be executed, or the clerk to the justices may so transmit it for execution : In tlie 1st edition the corresponding clauses isted. are nmnbered 101, 102. Paragraph 6 of the same clause would have efEected a change in a time-honoured principle of constitutional law. It said — The constable or other person executing any warrant of arrest shall not be obliged to produce the same to the person apprehended at the actual time of such ap- prehension, but shall, if required (in other cases than those within the ninth part of this act), do so within the period of twenty-four hours thereafter, otherwise the person apprehended shall be discharged from custody, unless previously to the expiration of such period he shall be taken before a justice. See Ap- pendix I., p. 101. Sill of mi. Constable need not produce warrant to person ap- prehended. Of. the two bills, that of last session, even allow- ing for the fact that it was not a consolidatiug measure, was much the shorter and simpler of the two, being apparently directed in great part against certain evils which had been felt as a public grievance. Lord Oaims' bill contained several clauses ob- viously aimed at points of procedure as to which Digitized by Microsoft® xlvi INTEODUCTION. Bill of 1871. 2nd ed. Interested justices disqualified in certain mueli technical difficulty has at various times arisen, such as — Provisions defining jurisdiction and powers over of- fences and matters of all descriptions of justices; wien they shall be disqualified from determining cases by reason of interest, relationship to the parties, &c. ; and when capable of acting as members of corporate or local bodies, &c. Defining the cases to which the summary jurisdiction shall apply, thereby extending the 11 & 12 Vic. c. 43, which omitted such cases from its operation, and applying this part to oases where no provision is made ia act as to procedure. Power to hear oases on voluntary appearance of defendant; by consent of parties one justice to hear where two are required; time for objecting to jurisdiction of justices and course to be taken by justices on allega- tions of claims of right or title defined; mode of hearing, division of opinion amongst justices, &c. These clauses were as follows : — 17. No justice shall, either alone or with any other justice, hear or determine any ofience or matter within, &c. * * * * (1.) If he is rated or liable to be rated in the parish (except in the case of a justice of a borough wherein there is not more than one parish com- prising such borough) against any rate for which an appeal is made to a special sessions at which he is present: (2.) If he is individually interested as owner, lessee or occupier in the property, land or premises with respect to which the offence or matter was com- mitted or arose : (3.) If he is the father, son or brother of any party to the proceeding, or of any person so interested: (4.) If he is the partiier in business of any party to the proceeding, or of any person so interested: (5.) If he is a member, director, ofiicer or shareholder ■ of any railway company, joint stock or other public company or body (other than those re- ferred to in this act as not being disqualified) complaining or concerned in such oSence or matter, unless both parties to such proceedings shall previously give their consent thereto, in which case he shall be competent to hear, dotermine or act as if he were not so Digitized by Microsoft® SUMMARY JURISDICTION AMENDMENT BILLS. xlvii interested or related; but such. Justice is hereby reqtuired to state the fact of his being so interested or related before he shall take any part in such hearing and determination or examination. This clause (marked 14 in 1st edit.) -would liave gone far to settle the vexed question discussed in note {g), to s. 1, pp. 8, 9. The scope of the pro- posed act, as defined hy clause 41 (2nd edit.), 40 (1st edit), would have included — (1.) Every offence, act or default in this act defined to Bill of be a summary conviction: 1871- (2.) Every complaint upon which justices have autho- To what rity by law summarily to make any order (in- 8aBero«£fesftfflifc/WS«B®it, yet they must O SUMMARY PROCESS BEFORE JUSTICES. exercise that discretion upon the facts before them, and a mandamus -will, if necessary, go to compel them to proceed. M. V. Adamson, 1 Q. B. Div. 201; 45 L. J., M. C. 46; 24 W. K. 252 ; R. v. Eigginson, 31 L. J. 195 (Q. B.) ; Luton local Board of Eealth t. Bauis,^ 2 L. T., N. S. 172 (Q. B.) They must not, however, infer jurisdiction where it has not been given. Thus, where a court of quarter sessions had ordered a person to find sureties of the peace without directing that he should be committed in default, it was held two justices in petty sessions had no power to commit, such justices having only power to carry out strictly the order of the sessions. R. v. Siintingdonshire Justices, 14 L. J., M. C. 99 ; B. v. Reynolds, 1 D. & L. 846. Upon application for sureties to keep the peace, justices cannot (if complainant object) deal summarily for a common assault. R. v. Benny, 20 L. J., M. C. 189 ; Stow, 565, 589— 90 ; Paley (4th ed.), 55, 252—3. On the principle that no man may be judge in his own cause, justices are prevented from adjudicating upon a question in which they are personally inteirested, provided the nature of the disquaKfying interest is such as to throw any doubt upon their, impartiality. E.g. in R. v. Nimnely it was held that justices might be disqualified from adjudicating on a summons for non- payment of church rate where the defendant disputed both the validity of the rate and his liability to pay it, though they did \ not believe that defence to be put forward bond fide. R. v. Nunnebj, 27 L. J., Q. B..345 ; 31 L. T. 234; Cos, M. C. 26. Mere possibility of bias does not disqualify a justice from adjudi- catiag. So that they are not disqualified by being trustees to persons jvho have lent money to one of the parties in conten- tion before the court. R. v. Rand, L. K., 1 Q. B. 230; 35 L. J. 157. 8 Vic. c. 18, As to what sort of interest creates more than a possibility of s. 39. bias, qucere ? It has been held, under the 8 Tic. c. 18 (Lands Clauses Consolidation Act, 1845), s. 39, that a sheriff is not dis- qualified from presiding at a compensation case by holding shares in a company with which a railway company, being one of the parties concerned, is, by an executory agreement not yet carried out, to be amalgamated. R. v. Manchester, Sheffield and Lincolnshire Railway Co., L. E,., 2 Q. B. 336 ; 36 L. J., Q. B. 171 ; Cox, M. C. 380. But, on the other hand, shareholders in a railway company have been held to be disqualified by their interest (however slight) from adjudicating on the case of a man charged with travelling on the line in which they were interested, with an improper ticket. R. v. Eammond, 9 L. T., N. S., Q. B. 423 ; Cox, M. C. 168, 169. In a proceeding to recover possession' of a house alleged to 59 Geo. 3, belong to a parish under 59 Geo. 3, o. 12, s. 24, the jurisdiction c. 12, s. 24. of the justices is not ousted by a claim of title, as the question of title is necessarily involved in the matter which the justices have to determine. Ex parte Vaughan, L. R., 2 Q. B. 114 ; 36 L. J., Q. B. 88 ; Cox, M. C. 167. Semble, that in deciding a case magistrates ought not to take an indemnity, as it has the effect of ©ffflfelfifj^othMif 1R?€^de more safely in favour of SUMMONS AND WARRANT. 9 a, party -who is able to give an indenmity ttaii of one who cannot do so. Selwood v. Mount, 9 C. & P. 75. Objections to the jurisdiction on the ground of interest Interest, ought to be made at once, otherwise a party might take the ll&l2Vic. chance of a decision in his favour by justices who ought not to o. 43 s. 1. ' adjudicate, and then, if he were disappointed, challenge their right to decide ; or at least it ought to be made clear that the party objecting did not know of the disqualification at the time of the hearing. Wakefield Local Board of Health v. W. M. and Great Grimsby Rail. Co., L. E,., 1 Q. B. 84 ; 35 L. J., Q. B. 69 ; Ex parte Jlchester, 25 J. P. 56 ; S. v. Sichmond Justices, 24 J. P. 422. But it seems not to be always necessary that the defendant should object to the jurisdiction on the point which he has raised. U. v. Leicester and Compton, 29 L. J., Q. B. 241. By several acts justices of certain descriptions are prohibited from acting at aU in certain cases, while in others they are expressly qualified, though they may be indirectly interested. Oke, Mag. Syn. (12th ed.), pp. 32—34. Qu{ere, whether jurisdiction of justices in petty sessions is not precluded by a previous decision in the same matter and between the same parties in the county court at least, where the question at issue is substantially the same. Boutledge v. Hislop, 29 L. J., Q. B. 104 ; Cox, M. C. 184, 186. Although the form of claim in the summons may differ from that made in the county court. Ibid. See post, s. 14. A direction in a statute that all penalties and forfeitures im- posed by that act shall be "sued for, recovered, mitigated, and applied in the same manner and by the same means as under a previous act, which enabled justices to deal with offences the actual commission of which took place outside their jurisdiction," does not necessarily authorize justices pro- ceeding under the later act to do so. IR. v. Waghorn, 22 L. J., M. C. 60 {dissentiente, Coleridge, J.). II. And be it enacted, that if the person so if sum- served with a summons as aforesaid shall not be ^ot obeyed and appear before the justice or justices at the j^y^sg^g time and place mentioned ia such summons, and warrant; it shall be made to appear to such justice or jus- tices, by oath or affirmation, that such summons was so served what shall be deemed by such jus- tice or justices to be a reasonable time before the time therein appointed for appearing to the same, then it shall be lawful for such justice or justices if he or they shall thiak fit, upon oath or affirma- tion being made befep'/feb^j(j)^?(^j)?©ibstantiatiQg 10 SUMMAKY TROCESS BEFORE JUSTICES. or may issue war- rant in the first in- stance; or if sum- mons, having been duly served, he not ohey- ed, the justices may pro- ceed ceo parte. the matter of such information or complaint to his or their satisfaction, to issue his or their warrant (B.) to apprehend the party so summoned, and to briag him before the same justice or justices, or before some other justice or justices of the peace in and for the same county, riding, division, liberty, city, borough, or place, to answer to the said information or complaint, and to be further dealt with according to law ; or upon such infor- mation being laid as aforesaid for any offence punishable on conviction the justice or justices before whom such information shall have been laid may, if he or they shaU think fit, upon oath or affirmation being made before him or them substantiating the matter of such information to his or their satisfaction, instead of issuing such summons as aforesaid, issue in the first instance his or their warrant (C.) for apprehending the person against whom such information shall have been so laid, and bringing him before the same justice or justices, or before some other justice or justices of the peace in and for the same. county, riding, division, liberty, city, borough, or place, to answer to the said information, and to be further dealt with according to law ; or if, where a sum- mons shall be so issued as aforesaid, and upon the day and at the place appointed in and by the said summons for the appearance of the party so sum- moned, such party shall fail to appear accordingly in obedience to such summons, then and in every such case, if it be proved upon oath or afiirmation to the justice or justices then present that such summons was duly served tipon such party a reasonable IMse^b^jf^g^ritJe^ime so appointed for SUMMONS AND WARRANT. 11 his appearance as aforesaid, it shall he lawful for such justice or justices of the peace to proceed ex parie to the hearing of such information or com- plaint, and to adjudicate thereon, as fully and effectnally, to aU intents and purposes, as if such party had personally appeared before him or them in ohedience to the said summons (A). (A) This sectiou requires that before a waiTant is issued iu default of answer to a summons, the fact of such default and the substance of the information shall be sworn to ; and that before the issue of a warrant in the first instance the substance of the charge shall be sworn to. But the form given in the Schedule (B.) for a warrant where a summons is disobeyed only specifies the fact of the service of the summons as having been "proved on oath," and does not refer to any proof of the charge ; whereas the form for a warrant in the first instance states the fact of the information, and that it has been sub- stantiated on oath. The third section {infra) requires that the warrant shall ' ' state shortly the matter of the information, " &c. , but says nothing about its being described as proved on oath. By sect. 32, post, the forms given in the schedule are to be deemed good, valid, and sufficient in law. And cf. 2ie Allison, 10 Exch. 561. The case of Caudle v. Setjinour, 10 L. J., M. 0. 130; 1 Q. B. 889, has sometimes been cited as establishing the principle that a warrant is bad unless it states that the information was sub- stantiated on oath. And from a part of Lord Denman's judg- ment in that ease, it may appear as if this were so, with regard at least to warrants in the first instance. The case itself, how- ever, does not carry the principle quite so far. The informa- tion had, in fact, been taken by the magistrate's clerk, the magistrate not being present, and it did not appear that the ofience charged was reported to the magistrate to have been actually committed. It may be taken, however, that a warrant which recited no information, but only directed the constable to apprehend, &c. A. "to answer such matter, &o., &c., as shall be objected against him on oath by B.," was void for generality, even before the passing of 11 & 12 Vic. c. 43, s. 3. 11 &12Vic. See also sect. 10, post. '^'n^'^' ^^' ^' Within the metropolitan district a metropolitan magistrate 10- may, by 2 & 3 Vic. c. 71, s. 19, after a summons has been 2 & 3 Vic. disobeyed and on proof thereof, issue his warrant without c. 71, s. 19. requiring any substantiation of any charge against the de- fendant ; and in all cases not of a criminal nature may, if no sufficient cause is shown for the absence of the defendant, hear the case in his absence, as by the repealed section, 10 Geo. 4, u. 44 s. 36, metropolitan magistrates had power to do in cases punishable on summary conviction under that act, provided Digitized by Microsoft® 12 SUMMARY PROCESS BEFORE JUSTIClife. that tlie charge and the service of a summons Tvere proved on Oath, and that the prosecution was commenced within three 2 & 3 Vic. months of the commission of the offence. 2 & 3 Vic. c. 71, c. 71, s. 21. s. 21, gives the magistrate power to issue a warrant, in the iirst instance, as under 11 & 12 Vic. c. 43, s. 2, provided good grounds for so doing are shovm on oath. Similar powers were given to metropolitan magistrates hef ore the passing of this act by 10 Geo. 4, o. 44, s. 36, and 2 & 3 Vic. u. 71, =. 19. Before the justices can adjudicate in the absence of the accused person they must have proof that a summons was left at his usual place of residence (cf . supra, sect. 1,'n. (d)), or was otherwise brought to his notice. M. v. Smith. In, this case the summons was served at the house of defendant's mother, with whom he resided ; but the service was not until the 10th to appear on the 12th ; whereas the defendant had gone to sea on the 9th, and was at sea till the night of the 12th. E. v. Smith, 23 W. E... 623 (Q. B.) 22nd April, 1875 ; see R. v. Ball, 6 D. & K. 84 ; M. v. Emns, 19 L. J., M. C. 151. It is, however, no ground for a certiorari to remove several 7 & 8 Tic. convictions before justices under the Factory Act, 7 & 8 Vic. c. 15, s. 41. c. 15, s. 41 (the certiorari being expressly taken away), that the justices made the convictions upon no other appearance than that of an attorney who professed to represent the parties charged without requiring proof of the service of the summons, and upon the evidence offered in support of one of the charges only. Ex parte Sopwood, 19 L. J., M. C. 197; and cf. Bessell v. Wilson, post, a. 13, n. [a). It is not necessary, except where required by statute, that the information should be on oath ; and even where this is required by statute the omission may sometimes be held to be cured by the defendant's appearing to the summons. S. v. Millard, 22 L. J., M. C. 108 ; 17 Jur. 400. Except where some statute requires the oath of the informant, it is sufficient if the offence is proved by oath. Turner v. Fostmaster-General, 5 B. & S. 757 ; 4 L. J., Q. B. 37 ; 11 L. T., N. S. 369 ; Cox, M. C. 24 & 25 Vic. 166. SemhU, that the effect of 24 & 25 Vic. c. 97, s. 62, the c. 97, s. 62. section reMed on in the case last quoted, is rather to authorize 11 & 12 Vic. ex parte convictions on the issuing of a warrant than to render c. 43, ss. 10, sworn informations requisite. See further, s. 10, ^o«i. And as 14. to confession in the absence of defendant by his counsel or attorney, cf. R. v. Aves, post, b. 14, n. (e). Form of warrant. III. And be it enacted, that every such warrant to apprehend a defendant, that he may answer to any such information or complaint as aforesaid, shall be imder the hand and seal or hands and seals of the justice or justices issuing the same, and may be directed either to any constable or Digitized by Microsoft® WARRANT. 13 other person by name, or generally to the oon- stahle of the parish or other district within which the same is to be executed without namiag him, or to such constable and all other constables with- in the county or other district within which the justice or justices issuing such warrant hath or have jurisdiction, or generally to all the constables within such last-mentioned county or district, and it shall state shortly the matter of the information or complaint on which it is founded, and shall name or otherwise describe the person against whom it has been issued, and it shall order the constable or other person to whom it is directed to apprehend the said defendant and to bring him before one or more justice or justices of the peace (as the case may require) of the same county, riding, division, liberty, city, borough, or place to answer to the said information or complaint, and to be further dealt with according to law; and that it shall not be necessary to make such war- rant returnable at any particular time, but the same may remain in full force until it shall be executed ; and such warrant may be executed by where aud apprehending the defendant at any place within ^°^^^™y the county, riding, division, liberty, city, borough, i>e exe- or place within which the justices issuing the same shall have jurisdiction, or, in case of fresh pursuit, at any place in the next adjoining county or place within seven mUes («) of the border of such first- mentioned county, riding, division, liberty, city, borough, or place, without having such warrant backed as hereinafter mentioned ; and in all cases where such warrant shall be directed to all con- Digitized by Microsoft® 14 SUMMAKY PROCESS BEFOKE JUSTICES. Certain provisions of U &12 Vic. c. 42, as to tack- ing oi war- rants to extend to "warrants issued under this act. stables or peace officers within tlie county or other district within which the justice or Justices issuing the same shall have jurisdiction, it shall be lawful for any constable, headborough, tithingman, bors- holder, or other peace officer for any parish, town- ship, hamlet, or place situate within the limits of the jurisdiction for which such justice or justices shall . have acted when he or they granted such warrant, to execute such warrant in like manner as if such warrant were directed specially to such constable by name, and notwithstanding that the place in which such warrant shall be executed shall not be withia the parish, township, hamlet, or place for which he shall be such constable, headborough, tithingman, borsholder, or other peace officer ; and such of the provisions and enactments contained m a certain act of parliament made and passed ia this present session of parliament, intituled An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions irithin England and Wales with respect to Persons charged with in- dictable Offences, as to the backing of any warrant, and the indorsement thereon by a justice of the peace or other officer, authoriziag the person bring- ing such warrant, and aU other persons to whom the same was origiaally directed, to execute the same within the jurisdiction of the justice or officer so making such indorsement, as are appli- cable to the provisions of this act, shall extend to all such warrants, and to all warrants of commit- ment issued under and by virtue of this act, ia as full and ample a manner as if the said several provisions and enactments wore here repeated and Digitized by Microsoft® WARRANT. 15 made parts of this act : Provided always, that no No objec- objection shall be taken or allowed to any such ed for '^" warrant to apprehend a defendant so issued upon J^^°^ any such information or complaint as aforesaid the war- under or by virtue of this act, for any alleged any Vari- defect therein in substance or in form, or for any tweeult variance between it and the evidence adduced on le^^e^^. the part of the informant or complainant as herein- duced; after mentioned; but if any such variance shall but if the appear to the justice or justices present and acting chained at such hearing to be such that the party so {i.'\te"^'^ apprehended under such warrant has been thereby variation, , . , he may he deceived or misled, it shall be lawful for such oonnnitted justice or justices, upon such terms as he or they charged shall think fit, to adjourn the hearing of the case "^oo^. to some future day, and in. the meantime to com- zance; mit (D.) the said defendant to the house of correc- tion or other prison, look-up house, or place of security, or to such other custody as the said justice or justices shall think fit, or to discharge him upon his entering into a recognizance (E.), with or without surety or sureties, at the discretion of such justice or justices, conditioned for his appear- ance at the time and place to which such hearing shall be so adjourned: Provided always, that in but if he all cases where a defendant shall be discharged appear the upon recognizance as aforesaid, and shall not l^ans'^S''''' afterwards appear at the time and place ia such therecog- ^^ .... , nizanoe to recognizance mentioned, thenthe said justice who the clerk shall have taken the said recognizance, or any peace. justice or justices who may then be there present, upon certifying (F.) upon the back of the said recognizance the nonappearance of the defendant. Digitized by Microsoft® 16 SUMMARY PKOCESS BEFORE JUSTICES. may transmit sucli recognizance to tlie clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances (/), and such certificate shall be deemed su&oient prima facie evi- dence of such nonappearance of the said defendant. (•j) The "seven miles are to be measured in a straight line" (S. V. Saffron WaUm, 9 Q. B. 76 ; Stokes v. Grissell, 14 C. B. 678), drawn in a horizontal plane as on the map. Mouflet v. Cole, 8 Ex. Ch. 32. ' (j) Proceedings upon recognizances to appear are chiefly 3 Geo. 4, under the 3 Geo. 4, c. 46, B. 2, by which enactment all fines, c. 46, s. 2. issues, amerciaments,' forfeited recognizances and sum or sums of money paid in satisfaction of them, set or imposed by, or lost or forfeited before, any justice or justices of the peace, shall (except directed by statute to be otherwise levied), on or before the ensuing general or quarter sessions, be certified by such justice or justices to the clerk of the peace of the county, or town clerk of the city, borough or place, in writing, under his or their hands, containing the names and residences, trade, profession or calling of the parties, the amount of the sum forfeited by each, and the cause of each forfeiture. The clerk of the peace or town clerk is then to copy them, together with those forfeited, &o. at sessions, on a roll, and shall at such time as the court of general or quarter sessions shall order (not exceeding twenty-one days from the day of adjourning the ooixrt), send a copy thereof, with writs of distringas and capias on fieri facias and capias to the sheriff, for the purpose of levy- ing the several amounts, according to the form and effect in schedule A. annexed to that act. The duty of the sheriff with respect to the roll of fines sent to bim by the clerk of the peace, pursuant to 3 Greo. 4, c. 46, is not purely ministerial, and the sheriff is not justified in levy- ing a fine stated in the roll to be unpaid when the amount has been paid to the sheriff himself before receiving the roU. The deputy clerk of the peace is authorized to receive the amount of fines imposed at the quarter sessions ; and if he receives the money and omits to notify the receipt in the roll, and damage accrues in consequence to the party fined, the latter may main- tain an action against the deputy clerk of the peace for negli- gence. Wildes V. Morris, 22 L. J., M. C. 4. Quaire, whether the deputy clerk of the peace is liable for acts of negligence of 59 Geo. 3, the assistant whom he appoints, pursuant to statute 59 Geo. 3, ''■ 28. 0. 28, to record the proceedings of the justices sitting in a second court at the quarter sessions. 3 Geo. 4, c. Under 3 Geo. 4, c. 46, s. 2, recognizances may be estreated 46, 8. 2. without notice, and the sheriff may issue process at once. Hx Digitized by Microsoft® INFORMATION. 17 parte Edmonds, 23 J. P. 324 ; Oke, Mag. Syn. (llth ed.), 144, n {.9)- Eeoognizanoes taken at one session may be estreated at another, and ttat although the proceedings at the former were in a certain degree inchoate. In the case of R. v. Ely, 25 L. J., M. C. 1, on appeal in a licensing case, the quarter sessions ordered the appellant to pay "forthwith" costs which were left in blank till the taxation. At next sessions, the blanks being fUled up, the recognizances, which had been entered iato by appellant under 9 Geo. 4, u. 61, s. 27 (partly repealed), for his appearance, &o. at the former sessions, were estreated on af&davit of a demand and refusal to pay costs specified in the order as having been made previous to the latter sessions: — Held, that the latter sessions had juris- diction to estreat the recognizances. The sessions cannot order recognizances to be estreated where the forfeitirre accrues by an act done out of court, — as, e.g. recognizances for good behaviour: there must be a scire facias. And where the sessions made such an order, having no power to do so, a certiorari was granted to remove it that it might be quashed, though the order was void. M. v. West Hiding Justices, 7 L. J., M. C. 9; cf. 16 & 17 Vic. c. 30, b. 2. 16&17Vic. As to estreating recognizances in the metropolis,, of . 2 & 3 c 30 s 2 Vic. c. 71. By sect. 17 of the same statute, every warrant to compel the 2 & 3 Vic. appearance of any person or warrant for the apprehension of c. 71, a. 17. any person charged with any offence, issued by any of the said magistrates, in respect of any matter arising within the metro- politan police district, may be served or executed out of the metropolitan police district by .the constable or constables to whom the same shall be directed, and shall have the same force and effect as if the same had been originally issued or subse- quently indorsed by a justice or justices having jurisdiction in the place where the same shall be served or executed. IV. And be it enacted, tliat in any information Descry- or complaint, or the proceedings thereon, in whicli property oIe it shall he necessary to state the ownership of any |artners, property belonging to or in the possession of part- ners (Jc), joint tenants, parceners, or tenants in common, it shall he sufficient to name one of such persons, and to state the property to belong to the person so named and another or others, as the case may be, and whenever in any information or com- plaint, or the proceedings thereon, it shall be necessary to mention, for any purpose whatsoever, Q, Digitized by Microsoft® c 18 SUMMARY PROCESS BEFOEE JUSTICES. of the pro- perty of counties ; of the pro- perty in goods pro- vided for the poor; of the pro- perty in materials for parish of the pro- perty in materials for turn- pike roads, &c. ; any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe tliem in manner aforesaid; and whenever in any such information or complaint, or the proceedings thereon, it shall be necessary to describe the ownership of any work or building made, main- tained, or repaired at the expense of any coimty, riding, division, liberty, city, borough, or place, or of any materials for the making, altering, or re- pairing of the same, they may be therein described as the property of the inhabitants of such coimty, riding, division, liberty, city, borough, or place respectively; and all goods provided by parish officers for the use of the poor (l) may in any such information or complaint, or the proceedings thereon, be described as the goods of the church- wardens and overseers of the poor of the parish, or of the overseers of the poor of the township or hamlet, or of the guardians of the poor of the union to which the same belong without naming any of them; and all materials and tools provided for the repair of highways at the expense of parishes or other districts in which such highways may be situate may be therein described as the property of the surveyor or surveyors of such highways respectively, without naming him or them; and all materials or tools provided for making or repairing any turnpike road, and buildings, gates, lamps, boards, stones, posts, fences, or other things erected or provided for the purpose of any such turnpike road, may be described as the property of the commissioners or trustees of such turnpike road, without naming Digitized by Microsoft® DESCRIPTION OF PROPERTY ACCESSORIES. 19 them; and all property of the commissioners of of the pro- sewers of any district may he deserihed as the coSifi- property of such commissioners, -without naming g^^ers sioners of luj \JX OUI^IX liiiii rsrsniiim-iSj wlljLLUUU litllUiil^ them. (k) The property should not be described as belonging to " A. and others," if it belongs to "A." and one other person only. S.Y.Sampton, Green-w. Col. Stats. 143; Arohb. Or. PI. (18th ed.) 44. But in S. t. SeaUy, 2 Den. C. C, it -was held that a charge of attempting to obtain the property of " B. and others" (a firm) by fake pretences made "to B. and others " ■was sustained by proof of false pretences being made to B. alone. And it is not necessary that a strict legal partnership shoiJd exist. R. t. Gabey, E. & E. 178 ; B. v. Scott, K. & E. 13 ; S. V. BouUm, 5 C. & P. 537 ; 7 Geo. 4, c. 64, s. 14 ; 7 Geo. 4, Arohb. Cr. PI. (18th ed.) 44. c. 64, s. 14. (I) The 5 & 6 Will, i, c. 69, s. 7, had provided previously 5 & 6^7111. that poor law guardians might sue or be sued, bring indict- 4, c. 69, s. 7. ments, &o., under the title of "the guardians of the poor of the union [or of the parish of ] in the county of " for or in relation to any buildings, lands, goods, contracts, instruments, &c., given, fee, to them in virtue of their ojKoe, and that such property might be stated as that of "the guardians of the ■ union \or of the parish of ]." In respect of articles indispensable to the work which it is their dxLty to carry out, it is not necessary that they should contract under seal. Clarke v. Cuckfield Union, 21 L. J., Q. B. 349; 16 Jur. 686. Y. And he it enacted, that every person who Prosecu- shall aid, ahet, counsel, or procure the commission pn^sh- of any offence which is or hereafter shaU he ™ders°and punishahle on summary conviction shall he liahle abettors in ■T . T • 1" 1 ™® com- to be proceeded against and convicted for the mission of same, either together with the principal offender, or hefore or after his conviction, and shall be liable on conviction to the same forfeiture and punishment as such principal offender is or shall be by law liable, and may be proceeded agaiast and convicted either m the county, riding, division, liberty, city, borough, or place where such principal offender may be convicted, or in that in which such offence of aiding, abetting, DigifkJs by Microsoft® 20 SUMMARY PEOCESS BEFORE JUSTICES. 2 & 3 Vic. c. 47, s. 44. ll&12Vic. c. 43, 8. 5. ProTisiona of 11 & 12 Vic. c. 42, as to justi- ces in one county, &o. acting for another, to extend to this act. counselUng, or procuring may have been com- mitted («*). (m) Before the magistrate can con-riot under thia section it must appear that the principal offence was actually com- mitted, though any person soliciting another to commit a misdemeanor is incfictable at common law. M. v. Vaughan, 4 Burr. 2494; Archb. Cr. PI. (18th ed.), 999. The act of "aiding, abetting," and "counselling" is not in sense dis- tinguished by the disjunctive particle "or" from that of "procuring;" but all four acts may be charged together as one offence. Ex paHe Smith, 3 H. & N. 227; 27 L.J., M. C. 186. On a commitment under this section for aiding a handicraftsman in unlawfully absenting himself, qucere whether it is any defence that the party charged did not know that there was no lawful excuse for the absenting; but semble, that if it is so it is a matter arising on "not guilty," and on which the magistrate's adjudication is con- clusive. And the point cannot be raised upon a warrant of commitment, stating the offence of the principal sufficiently, with averment of the absence of lawful excuse, and then alleging that the prisoner aided in the commission of the said offence. Ibid. As to what constitutes aiding, &c. , see the case of Stacey v. Whitehurst, 18 C. B., N. S. 344 ; 34 L. J., M. C. 94; 11 L. T., N. S. 710; P. & H. Dig. 4160.— In that case, it appeared that A. drove B. along a tirmpike road for a lawful purpose ; that the conveyance was stopped, when B. got out, entered a field and shot a hare, which he gave to A. on return- ing to the conveyance ; and that A. then drove along the road: — Held, that there was evidence on which to conrict A. of aiding and abetting B. to commit the offence of trespass in pursuit of game. If a keeper of a place of public resort instructs his servant to manage it in such a way as to be a violation of 2 & 3 Vic. 0. 47, s. 44, and the servant does so, the master is guilty of an offence within that act, and the servant is guilty as aiding and abetting him within 11 &■ 12 Vic. c. 43, s. 6. Wilson v. Stewart, 3 B. & S. 913; 32 L. J., M. C. 198; 8 L. T., N. S. 277; P. & H. Dig. 5374. YI. And be it enacted, tbat such of tlie pro- visions and enactments in the act aforesaid made and passed in this present session of parliament, intituled An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions, tdthin England and Wales, vith respect to Persons charged icith indictable Offences, whereby a justice of the peace for one coimty, riding, division, Digitized by Microsoft® INFORMATION. 21 literty, city, borougli, or place may act for the same wliilst residing or being in an adjoining county, ridiag, division, liberty, city, borougli, or place of ■which he is also a justice of the peace, or whereby a justice of the peace for any county at large, riding, division, or liberty may act as such within any city, town, or precinct next adjoiuiag thereto or surrounded thereby, being a county of itself or otherwise having exclusive jurisdiction, as are applicable to the provisions of this act, shall be deemed to be incorporated into this act, and to extend to all acts required of or to be performed by justices of the peace under or by virtue of this act, in as full and ample a manner as if the said provisions and enactments were here repeated and made parts of this, act (m). (n) This section was controlled by the 35th section of this ll&l'2Vic. same act (post) ; but now by section I of the 26 & 27 Tic. c. 77, c. 43, s. 35. the said 35th section is not to apply to or control the said 6th 26 &27 Vic. section, and such last-mentioned section shall be construed as ''■ ''' ^' ^■ if the 35th section were not and never had been contained in the 11 & 12 Vic. c. 43. By the combined operation of 11 & 12 Vic. u. 42, ». 6; ll&12Vio. 11 & 12 Vic. c. 43, s. 6, and 26 & 27 Vic. c. 77, s. 1, county c. 42, s. 6. justices have jurisdictiou to make an order while sitting in a borough for the reasonable charges of the inquiry into the in- sanity of a convict who becomes insane in prison, and also of his removal to and maintenance in an asylum. Guardians of Bradford Union v. GlerTt, of the Feace for- Wilts, L. R., 3 Q. B. 604. Touching the jurisdiction now possessed by borough justices over offences formerly cognizable only byjusticesfor the county, cf. 13 & 14 Vic. c. 91, 6. 9; Mayor ofEeigateY. Sart, 37 L. J., 13&14Vio. M. C. 70; 18 L. T., N. S. 237 ; andOke, Mag. Syn. (11th ed.), c. 91, s. 9. vol. ii., pp. 13, 14, n. (10). YII. And be it enacted, that if it shall be made Power to to appear to any justice of the peace, by the oath summon or affirmation of any credible person, that any ^^^end person within the jurisdiction of such justice is andgive Likely to give material evidence in behalf of the Digitized by Microsoft® 22 SUMMARY PEOCESS BEFORE JUSTICES. prosecutor (o) or complainant or defendant, and ■will not voluntarily appear for the purpose of being examined as a -witness at the time and place appointed for the hearing of such information or complaint, such justice may and is hereby required to issue his summons (Gr. 1.) to such person under his hand and seal, requiring him to be and appear at a time and place mentioned in such summons before the said justice, or before such other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place as shall then be there, to testify what he shall know con- cerning the matter of the said information or if summons complaint; and if any person so summoned shall obeyed, neglect or refuse to appear at the time and place mavlssue appointed by the said summons, and no just excuse warrant; shall be offered for such neglect or refusal, then (after proof upon oath or afBrmation of such sum- mons having been served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and that a reasonable sum was paid or tendered to him for his costs and expenses in that behalf,) it shall be lawful for the justice or justices before whom such person should have appeared to issue a warrant (Gr. 2.) under his or their hands and seals to bring and have such person, at a time and place to be therein mentioned, before the justice who issued the said summons, or before such other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place as shall then be there, to testify as afore- said, and which said warrant may, if necessarv, be Digitized by Microsoft® "" WITNESSES. 23 backed as hereinbefore is mentioned, in order to its being executed out of the jurisdiction of the justice who shall have issued the same; or if such in certain justice shall be satisfied, by evidence upon oath f^Zwal- or aflfirmation, that it is probable that such person ^^ P- ^^^ will not attend to give evidence Avithout being stance. compelled so to do, then, instead of issuing such summons, it shall be lawful for him to issue his warrant (Gr. 3.) in the first instance, and which, if necessary, may be backed as aforesaid; and if on Persons the appearance of such person so summoned before on^g^m^^ the said last-mentioned justice or justices, either ^'T^^: ^"i _ J ■ J ' _ refusing to in obedience to the said summons or upon being teexamin- brought before him or them by virtue of the said committed, warrant, such person shall refuse to be examined upon oath or affirmation concerning the premises, or shall refuse to take such oath or affirmation, or having taken such oath or affirmation, shall refuse to answer such questions concerniag the premises as shall then be put to him, without oiferiag any just excuse for such refusal, any justice of the peace then present, and having there jurisdiction, may by warrant (Gr. 4.) under his hand and seal commit the person so refusing to the common gaol or house of correction for the county, riding, division, liberty, city, borough, or place where such person so refusing shall then be, there to remain and be imprisoned for any time not exceed- ing seven days, unless he shall ia the meantime consent to be examined and to answer concerning the premises (p). (o) In Mr. Kennett's edition (18th) of Stone's Justices Manual, p. 24, n. (c), a doubt is expressed -whether under the above section an unwilling prosecutor or complainant can be sum- moned. This doubt ^■§^^id%°y]^ofo°^^ °'' ^ ^"PP°«^^ 24 SUMMARY PROCESS BEFORE JUSTICES. 14 & 15 Vic. c.99,ss.2,3. 35 & 36 Vic. c. 76, s. 63 (4): c. 77, s. 34 (4). 38'&39Vic. c.86,4-6,11. 35&36.Vic. c. 94, s. 51 38 Vic. c. 17, s. 87. 40 & 41 Vic. c. 14, s. 1. 2 & 3 Vic. 0. 71, s. 22. 7&8Geo.4, 0. 53, s. 74. 2 & 3 Vic. c. 71, s. 22. distinction between a prosecutor giving evidence for himself and other persons giving evidence in his behalf. But an "n-n w illin g prosecutor " may be a valuable witness for the defendant, and there seems no reason why either party may not be summoned, subject, of course, to the provisions of 14 & 15 Vic. c. 99, 88. 2, 3. Several recent statutes now enable parties standing in the position of accused persona to be sworn. Thus by the Mines Regulation Act, 1872 (35 & 36 Vic. c. 76, s. 63, par. 4, and c. 77, s. 34, par. 4), an owner, agent or manager under charge of contravening either act may, if he thinks fit, be sworn. By sect. 1 1 of the Conspiracy, &c. Act, 1875 f38 & 39 Vic. c. 86), both parties may be sworn in respect of offences under sects. 4 — 6. By the Licensing Act of 1872 (35 & 36 Vic. c. 94, s. 51, par. 4) in all cases of summary proceedings under that act the defaidant and his wife are competent to give evidence. By the Explosives Act 1875 (38 Vic. c. 17, s. 87), an owner or occupier may, when charged in respect of any offence under the act by another person, if he thinks fit, be sworn and examined as an ordi- nary witness in the ease. And last year it was enacted by the Law of Evidence Amendment Act (40 & 41 Vic. c. 14, s. 1) that any indictment or proceeding for the non-repaic of any pubHo highway or bridge, or for a nuisance to any public highway, river or bridge, and on the trial of any other indict- ment or proceeding instituted for the purpose of trying a civil right only, every defendant, &c., and the wife or husband of any such defendant, shall be admissible witnesses and com- ipellabk to give evidence. (p) Before the above enactment was passed it was doubtful whether a magistrate could commit a person for refusing to give evidence, and a warrant of commitment would certamly have been insufficient if it omitted to state that the party knew that there was a charge before the magistrate. Cropper v. Morton, 8 D. & B. 166. The 11 & 12 Vic. c. 43, s. 7 (difltering herein from the 2 & 3 Vic. c. 71, s. 22), restricts the power of justices in this behalf to the area of their jurisdiction for general purposes. Where a person whose evidence is desired resides out of the jurisdiction of a magistrate (not being a metropolitan police magistrate), and wiE not come voluntarih-, a, crown office subpoena is the only way of bringing him. Comer's Crown Practice, p. 256; S. -7. Lydeard St. Lawrence, 11 A. &E. 627; 10 L. J., M. C. 150; B. V. Yickery, 17 L. J., M. C. 129, 131, 132; E. v. Greenmcay, 7 Q. B. 126; M. v. Siny, 8 T. R. 585. Li some cases, e.g. 7 & 8 Geo. 4, c. 53, s. 74 (excise), justices have power to issue process beyond their jurisdiction (Taylor Ev. 1148) ; and by 2 _& 3 Vic. c. 71, s. 22, a metropolitan magistrate has power without limitation of jmisdictiou to summon witnesses for the prosecution, and if the summons is neglected to bring them by warrant. A person disobeying a crown office subpcena may be attached for contempt of coui-t. E. v. Greenaway, 7 Q,. B. 126; 14 L. J., M. C. 190. And it is not necessary to be shown, either in the subposna or fepf^igj(i,fl!?ft,%igBfe®ig for the attachment, that PEOCEDUEE. 25 U&12Vic. c. 43, s. 7. 30 & 31 Vic. c. 35, s. 6. Infirm witnesses. 16 & 17 Vic. 0. 30, s. 9. Witnesses in prison. one of the said justices was of the quorum. M. v. Vickery, 12 Q. B. 478; 17 L. J., M. C. 129.- This procedure has one advantage over that created by 11 & 12 Vic. o. 43, s. 7, in that the attachment will lie where the subpoena disobeyed is a mbprnna duces tecum, ij. v. Carej^, 7 Q. B. 126; 2Nev.N.C. 103. The power of justices to take the deposition of a witness summoned on subpoena, but imable to attend from illness, given by 30 & 31 Vic. o. 35, s. 6, does not apply to summary proceedings under 11 & 12 Vic. c. 43; but the 16 & 17 Vic. 0. 30, B. 9, enacts, that it shall be lawful for one of her Majesty's principal Secretaries of State, or any judge of the Court of Queen's Bench or Common Pleas, or any baron of the Exchequer, in any case wiere he may see fit to do so, upon application by affidavit, to issue a warrant or order under his hand for bringing up any prisoner or person confined in any gaol, prison or place under any sentence, or under coromitment for trial or otherwise (except under process in any civil action, suit or proceedings), before any court, judge, justice or other judicature to be examined as a witness in any cause or matter, civil or criminal, depending or to be inquired of or determined in or before such court, judge, justice or judicature: and the person required by such warrant or order to be so brought before such coiirt, judge, justice or other judicature shall be so brought under the same care and custody and be dealt with in Hke manner in aU respects as a prisoner required by any writ of habeas corpus awarded by any of her Majesty's superior courts of law at Westminster to be brought before such ooxuH; to be examined as a witness in any cause or matter depending before such court is now by law required to be dealt with. See further as to witnesses before magistrates, 2 & 3 Vic. c. 71, SB. 22, 23. As to expense, of. sect. 18, note (m), infra. And cf., as to documentary evidence, order, proclamation, &c., 31 & 32 Vic. c. 37, and Suggina v. Ward, 21 W. E. 914. YIII. And be it enacted, that in all eases of Com- complaints upon wMch a justice or justices of the an™der peace may make an order for the payment of ^e®j^°°* money or otherwise, it shall not be necessary that writing. such eomplaiat shall be in writing, unless it shall be required to be so by some particular act of parlia- ment upon which such complaint shall be framed. 2 & 3 Vic. c. 71,ss. 22, 23. 31 &32Vic: c. 37. ;, s. 1, n. [a), par. 2; and infra, See Blake v. Beech, p. 42, n. («). IX. And be it declared and enacted, that in all As to pro- cases of informations for any offences or acts pun- upon'in^- Digitized by Microsoft® 26 SUMMARY PROCESS BEFORE JUSTICES. formations for offences pimishaUe on sum- mary con- victions. The party charged, if deceived hy varia- tion be- tween in- formation and evi- dence, may he com- mitted or discharged upon recogni- zance: ishable upon summary conTiction, any variance between sueh information and the eyidence adduced in support thereof as to the time at which such offence or act shall he alleged to have been com- mitted, shall not be deemed material (?), if it be proved that such information was in fact laid within the time limited by law for laying the same ; and any variance between such information and the evidence adduced in support thereof as to the parish or township in which the offence or act shall be alleged to have been committed shall not be deemed material (r), provided that the offence or act be proved to have been committed within the jurisdiction of the justice or justices by whom such information shall be heard and determined ; and if any such variance, or any variance in any other respect, between such information and 'tlie evidence adduced in support thereof, shall appear to the justice or justices present and acting at the hearing to be such that the party charged by such information has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day, and ia the meantime to commit (D.) the said defendant to the house of correction or other prison, lock-up house, or place of security, or to such other custody as the said justice or justices shall think fit, or to discharge him upon his entering into a recogni- zance (E.), with or without surety or sureties, at the discretion of such justice or justices, condi- tioned for his appearance at the time and place to which such hearing shall be so adjourned: pro- Digitized byWIicrosoft® the peace. PKOCEDTJIIE. 27 vided always, that in aR cases where a defendant tat if he shall he discharged upon recognizance as afore- appear, the said, and shall not afterwards appear at the time IraMi^"^ and place in such recognizance mentioned («), then thereoog- jl *T»i» 1 ini T 1 • lllZ9iIlC6 to the said justice who shall have taken the said re- the clerk of cognizance, or any justice or justices who may then be there present, upon certifying (F.) upon the back of the said recognizance the nonappear- ance of the defendant, may transmit such recog- nizance to the clerk of the peace of the county, riding, division, Kberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed su&oiexA prima facie evidence of such non- appearance of the said defendant. (?) In Onlei/^ v. Gee, 4 L. T., N. S. 338 ; Cox, M. 0. 138, where, on an information charging a man, under 16 & 17 Vic. 16 & 17 Vic. <:. 119, with keeping a betting-house " on the 5th October, c. 119. and on divers other days between the said 5th October and the laying the information (16th November)," it was proved that defendant committed the ofEence on the 8th November, but not proved that he committed it on any other day, a conviction was upheld. (r) Of. ante, s. 1, n. (/), as to curing of irregularity, variance, &o. (s) Of. as to forfeited recognizances, ante, s. 3, n. (J). X. And be it declared and enacted, that every Manner of such complaint upon which a justice or justices of complaint the peace is or are or shall be authorized by law Sfonna? to make an order, and that every information for *^°'^- any offence or act punishable upon summary- con- viction, unless some particular act of parliament shall otherwise require, may respectively be made or laid without any oath or afBLrmation being made of the truth thereof ; except in cases of iaforma- When Digitized by Microsoft® 28 STJMMAKY PROCESS BEFORE JUSTICES. warrant issued in the first instance, informa- tion to he upon oatli, 24 & 25 Vic. c. 97, s. 62. 19 Geo. 2, s. 21. ll&12Vic. c. 44, s. 5. tions where the justice or justices receiving the same shall thereupon issue his or their warrant in the first instance to apprehend the defendant as aforesaid, and in every such case where the justice or justices shall issue his or their warrant in the first instance the matter of such information shall be substantiated by the oath or afiirmation of the informant, or by some witness or witnesses on his behalf, before any such warrant shall be issued {t) ; and every such complaint shall be for one matter of complaint only, and not for two or more matters of complaint ; and every such information shall be for one ofEence only, and not for two or more offences ; and every such complaint or information may be laid or made by the complainant or in- formant in person or by his counsel or attorney, or other person authorized in that behalf (ii). (t) Even where a summons is directed by statute (as, e.g. hy 24 & 25 Vie. 0. 97, s. 62) to be issued on a sworn information, the defendant may waive his privilege by appearing, pleading, &o. Turner v. Postmaster-General, 5 B. & S. 757; 4 L. J., Q. B. 37; 11 L. T., N. S. 369 ; Cox, M. C. 166 ; and cf. ante, 8. 1, n.(/). («) The using several oaths on one and the same occasion is one offence only under 19 Geo. 2, c. 21, and 11 & 12 Vic. c. 43, s. 10, therefore does not apply. M. v. Sott, 33 L. J., M. C. 15, wherein Blackburn, J., said, concurring with "Wightman, J., " Jervis's Act applies to one ground of complaint, and there is here but one ground of complaint, and that is that the defendant swore several oaths on one and the same occasion." In this case, therefore, a conviction that "A. B. did on, &c., profanely curse one profane curse" (setting it out) "twenty several times repeated," and adjudging him to pay "for such his offence" — being a cumulative penalty at the rate of two shillings (the maximum penalty for a single curse) for each repetition — was held good. See also Onley v. Oee, s. 9, n. ( }) , ante. One information may include several defendants, though the court win not interfere, under 11 & 12 Vic. c. 44, s. 5, to enforce the drawing up afterwards of a joint conviction. JJ. v. Clee, 21 L. J., M. C. 112. And if master and servant are guilty of an illegal act together, the maxim, "Respondeat superior," wiU not shelter the servant, since there can be no duty to commit a Digitized by Microsoft® PARTIES. 29 crime . How far the master may be made oriminaUy responsible tor oftenoea by the servant, not directly proved to have been perpetrated at the master's instigation, is a question as to ■which there has been some doubt. The leading case on this point is Coleman v. Siehes, 16 C. B.- 118, where Jervis, C. J., mentions several cases in which a master may become criminally responsible for the act of his servant, provided it is done m the ordmary scope of the servant's employment. See especially the case of Att.-Gen. v. Siddons, 1 C. & J. 220; 1 'fjv. 41.— In this case, after the detection of smuggled tobacco concealed in a cellar, a servant, in his master's absence, procured a, permit, by which he intended to protect the goods from seizure. The master was held liable for the penalty attached to the ofEence of unduly using a permit. Here it is to be observed that the master, being do-minus loei where the smuggled goods were con- cealed, may have been considered to have authorized all offences flowing from the original offence of which he alone could reap any benefit. Where, however, a business is conducted in such a manner as to be a nuisance, a master is no doubt liable to be punished, though he has no knowledge of the existence of the nuisance. R. v. Stepliens, L. E., 1 Q. B. 702; 35 L. J M C 251 ; 14 L. T., N. S. 593 ; P. & H. Dig. 5756. It has recently oeen held by the Nottmgham borough and Stevenage county benches of magistrates, and by Mr. Hannay, at ClerkeuweU that under the 8 Vic. c. 20, ss. 98, 99, a master is liable to be fined (and therefore it maybe presumed in default to be impri- soned) if his servant refuse to give to the toU collector on a railway an account or give a false account of goods which he has in charge. Before laying an information for a statutable offence the particular Act in question should be consulted to see whether it in any way restricts the privilege of complaining or in- forming to particular persons. This is done expressly or by implication in some acts, while others expressly say that proceedings may be commenced by a common informer — that is, by anyone— and others, again, leave the question open. Thus' ii Tofi 9 under 11 Geo. 2, c. 19, s. 4, for fraudulently removing goods' c 19 s 4 the complaint should be made in writing by the ago-rieved ' ■ ■ landlord, his servant or other authorized agent. An informa- tion under 2 & 3 Vic. c. 12, s. 4 (repealed), for omitting to print the printer's name on a book was required to be laid by one of the law officers ; hut see R. v. Johnson, 8 Q. B. 102 ; 15 L. J., M. C. 7. The initiative, in case any house within the metropolitan police district shall be found in a filthy or un- wholesome condition, is assigned, by 2 & 3 Vic. o. 71, o. 41 2 & 3 Vic. to the medical officer of the parish or union concerned, together c. 71, a. 4i. with any two or more of the guardians, churchwardens or overseers thereof. In poor law matters the 7 & 8 Vic. o. 101 (Poor Law 7 & 8 Vic Amendment Act, 1844), says, s. 68, "that notwithstanding o.lOl s.68. anything contained in an act passed in the seventh year of the ' ' ' ' reign of her Majesty, intituled an act for consolidating and amending several of the laws relating to attomies and solicitors practising in England a^'J^^.^lft^Mote lawful for any 30 SUMMARY PROCESS BEFORE JUSTICES. 15 & 16 Vic. c. 61, s. 3. 23 & 24 Vic. C.127,s.33. 16&17Vic. 0. 128, 3. 5. 35 &36Vic. c. 76, 8. 64 ; c. 77, s. 35. 24 & 25 Vie. c. 100, ss. 42, 43. 10 fell Vic. c. 89, s. 35. 22 Vic. c. 32, s. 120. 39 & 40 Geo. 3, 0. 99, ss. 26, 28, 29. clerk or other officer to any board of guardians, constituted under the said first-recited act or under any local act, or to any district board, if duly empowered by such board, to make or resist any application, claim, or complaint, or to take and conduct any proceedings on behalf of such board before any justice or justices of the peace at petty or special sessions, or out of sessions, although such clerk or officer be not an attorney or solicitor, or have not obtained a stamped certificate in pur- suance of the provisions of the said act." This enactment and the 15 & 16 Vic. u. 61, s. 3 {infra), are kept in operation by the saving clause (sect. 33) of the 23 & 24 Vic. o. 127 (Attor- neys Act of 1860), which provides that nothing contained in the said act shall extend io repeal, prejudice, or affect any provision in any act of parliament in anywise enabling any person, other than an attorney or solicitor, to conduct, defend or otherwise act in relation to any suit or matter. Informations under the 16 & 17 Vic. 0. 128, s. 5 (Smoke Act), can only be laid with the authority of a secretary of state or the commissioner of police.' So under the Mines Acts, 1872 (35 & 36 Vic. c. 76, s. 64, and c. 77, s. 35), summary proceedings for offences can only be taken by an inspector or with the consent in writing of a secre- tary of state. The 24 & 25 Vic. c. lt)0, draws a distinction as to this point between common and aggravated assaults ; e.gi., an iaf ormation for the former offence must be laid by or on behalf of the party aggrieved (sect. 42), while the complaint for an aggravated assault — probably on account of its greater public importance — ^may be laid by any person (sect. 43). And pre- sumably, on the same principle, anyone may lay a complaiat for larceny under 24 & 25 Vic. c. 9, s. 6, or for a malicious injury imder 24 & 25 Vic. c. 97. The test of public import- ance was expresslv applied by Cockbum, C. J., in Cole y. Coulton, 2 E. & E."695, Cox, M. C. 270, in laying down that a common informer might proceed under 10 & 11 Vic. c. 89, s. 35 (the King's Lynn Improvement Act, 1847), against an alehouse keeper for suffering prostitutes to assemble, &c. on his premises, although by 22 Vic. c. 32, s. 120, the penalty (if any) would go either to the corporation or to the paving com- missioners of King's Lynn. For the same reason, probably, it was held that a common informer might proceed under 39 & 40 Geo. 3, c. 99, ss. 26, 28, 29, without being authorized by any express mention in the act. Caswell v. Morgan, 28 L. J., M. 0. 208 ; 33 L. T., N. S. 120. In Tarry v. Newman, 15 M. & W. 645 (an information under the repealed act 7 & 8 Geo. 4, c. 29, H. 39, for stealing a growing ash-tree), it was held, that a common informer might recover ; but then, as was pointed out by Alderson, B., the form of conviction given in sect. 71 directed that the value of the articles stolen, or the amount of the injury done, should be "paid to the party aggrieved," and that a sum " for costs" should "be paid to the complainant," showing that the complainant and the party aggrieved might be different persons. StUL the principle is probably a soimd one that, where there is no express or implied statutable direction, the jjuestion/whather a^eraon only iaterested as a member of tWp&Mmf^Wmi^ law in motion is to be PARTIES. 31 decided by asking whether the public are materially oonoemed in the matter. The presumption is that anyone may put the law in motion except where the whole provisions of the act proceeded under are evidently intended for the benefit of the aggrieved person or persons, as in R. v. Hicks, 24 L. J., M. C. 94, where the rights and privilegeg of the Torquay Market Company had been infringed. But where the alleged offence would be no offence at all if the act had been consented to, the dissent of the person whose rights have been infringed must be proved in some way or other. E. v. Garden, 4 Burr. 2279. And where a statute gives alternative remedies, i. e. either by information or by action, the information should be laid by the party aggrieved, because he ought not to lose his damages, and the offender " ought not to be oppressed by two prosecutions for one ofienoe." _ Per Best, J., R. v. Daman, 3 B. &Ald. 378. But this reasoning would not apply if the two remedies ap- peared to be intended as ctmiulative, and where it appears (as by 7 & 8 Geo. 4, o. 29, s. 71, repealed) that the oomplaiaant and the party aggrieved may be different persons. Tarnj v. Newman (per Alderson, B.), 15 M. & W. 636. A school board may, under sect. 85 of the Elementary Educa- tion Act, 1870 (33 & 34 Vic. c. 75) " appear in aU legal pro- ceedings by their clerk, or by some member of the board authorized by a resolution of the board." But by 39 & 40 Vic. c. 79, o. 38, no legal proceedings for non-attendance, or irre- gular ajttendance, at school shaU be commenced in a court of summary jurisdiction by any person appointed to carry out the compulsory bye-laws of a school board or local authority, ex- cept by the direction of not less than two members of a school board or school attendance committee. Dismissal of an information laid by the wrong person is no ground for granting a certificate under sect. 14, infra, in bar of proceedings by the person appointed by statute. Foster v. Sail, 20 L. T., N. S. 482. Before the passing of this enactment, a defendant might be convicted of several offences in the same conviction. JR. v. Swallow, 8 T. E. 284 (1799). But in S. v. Lovett, 1 T. B. 152 (1797-8), it was held, that on an information charging the de- lendant with keeping and using a dog, and also a gun, on the same day, he could only be convicted in one penalty. And cf . infra, s. 17, n. (I). Sect. 10 does nothing to settle the vexed question as to the legality of visiting what were called "joint offences" with several penalties; in connection with which. Baron Alderson drew a distinction between cases in which eYery person is to be punished, and cases in which every offence is to be pimished. 12 M. & W. 39. In S. v. Eube, however, it was held, that a company of persons who disturbed a religious .congregation were severally guilty and punishable. 5 T. E. 542. And now the case of May hew v. Wardley, 14 0. B., N. S. 560; Oox, M. C. 135, seems to have asserted the rule that two persons jointly engaged in an unlawful act may be severally convicted thereof . The true principle appears to be that each acts through the Digitized by Microsoft® 33 & 34 Vic. c. 75, s. 85. 39 & 40 Vic. c. 79, s. 38. U&12Vic. c. 43, s. 14. ll&12Vic. c. 43, s. 17. ll&12Vic. c. 42, s. 10. 32 SUMMARY PKOCESS BEFOKE JUSTICES. Time limited for such com- plaint or informa- tion. other as veil as in his own person. Cf . JJ. v. Staffordshire Jus- tices, 32 L. T. 105. As to two offences arising out of one ofEenoe, of. k. V. Jennings, E. & R. 388. For what is necessary in informations, see E. v. Stone, 2 Ld. Eaym. 1548; E. v. Dobbin, 2 Salt. 493; E. T. Cripps, 1 T. E. 711; E. V. Sarrison, 8 T. R. 508; E. v. Johnson, 1 Str. 261; Boso. 24; Oke's Mag. Syn. (11th ed.) 125; Paley, Sum. Conv. (4th ed.) 152. XI. And be it enacted, that in all eases where no time is already or shall hereafter he specially limited for making any such complaint or laying any such information in the act or acts of parlia- ment relating to each particular case, such com- plaint shaU he made and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose {v). {v) Doubt may sometimes arise as to whether a case is of such a character as to come within the restrictions of this section ; e.g., in Wilson v. Mayor of Bolton, 7 Q. B., L. E. 105 ; 41 L. J., M. C. 4, this section was held to apply to summary proceedings by a local board for the recoTery of expenses incurred by them in works of private improvement under 11 & 12 Vic. c. 63, ss. 69, 90 (repealed), and 21 & 22 Vic. c. 98, s. 62 (repealed). And an order of two justices, under 8 & 9 Vic. o. 18, awarding com- pensation for damages done to a landowner by the construction of a railway, was held within the 11th clause of the 11 & 12 Vic. c. 43. E. V. Leeds and Bradford Eail. Co., 18 Q. B. 343; 21 L. J., M. C. 193; cf. Ee Edmundson, 17 Q. B. 67. But the 8 Vic. c. 18, adjudicationof two justices, under the Lands Clauses Act (8 Vic. s. 22. c. 18, s. 22), as to the value of an interest in lands requiredfor the execution of an undertaking within that act, in respect to which no agreement has been come to between the promoters and the party entitled to sell as to the value thereof, is not an order for the payment of money within 11 & 12 Vic. c. 43, s. 11 ; and the summons to hear aud determine such question of com- pensation is not out of time if issued after six months from the notice to treat given by the promoters of the undertaking. E. V. Bannay, 44 L. J., M. C. 27. Semble, also, that Jervis's Act does not apply to proceedings for enforcing a rate by the mere issuing of a warrant of distress under a local act. Sweetman v. Guest, 3 Q. B. (L. E.) 262; 37 L. J., Q. B. 76; 18 L. T., N. S. 62 ; Cox, M. C. 358. It should be observed that mere non- payment of a debt, as (e.g.) of a balance found by an auditor to 7 & 8 Vic. be due, under 7 & 8 Vic. o. 101, s. 32 (now repealed so far as it c. 101, s. 32. Digitized by Microsoft® TIME. 33 relates to powers of commissioners -with regard to salaries of auditors, 37 & 38 Vic. c. 96) , is not uecesaarily made an offence merely because it is made repoverable in the same manner that a penalty is recoverable, as {e.g.) under 4 & 6 "Will. 4, c. 76, s. 99; 4&5 Will. S. T. Master, ^c. [Gloucestershire Justices), 4 Q. B. (L. E.) 285. 4, o. 76, The test suggested by Lush, J., in Mayer v. Barding is, s. 99. whether the object of the proceeding is punishment or merely coercion. 17 L. T., N. S. 140 {Q. B.). But the Uth section makes no distinction as to time between complaints and infor- mations. It has been decided that on the commitment by two justices under 11 & 12 Vic. c. 63, s. 39 (repealed), of a member of the town couucU and local board of a borough for uon-dehTery of a rate book in his possession by virtue of his ofiioe as overseer and collector of the borough rates (that being a continuing offence), the limitation of sis months by 11 & 12 Vic. o. 43, s. 11, did not apply. Mayer v. Sarding, 17 L. T., N. S. 140 (Q. B.). See infra. And of. infra, Jacomb v. Sodgson, 32 L. J., Q. B. 125 ; Labalmondiere v. Addison, 28 L. J., Q. B. 36 ; and Tot- tenham L. B. S. V. Fowell, W. N. No. 27, p. 208, where the 11 & 12 Vic. o. 43, s. 11, was held applicable to certain cases in the county court to which thi 24 & 25 Vic. c. 61, s. 24 (repealed) gave concurrent jurisdiction with the petty sessions in matters under 11 & 12 Vic. c. 63, ss. 69, 129 (repealed) . It seems to have been thought that this section applied to proceedings by the auditors of poor law districts to recover money certified to be due under 7 & 8 Vic. c. 101, s. 32. 7 & 8 Vic S. V. Tyrwhitt, 15 Q. B. 249 ; 19 L. J., M. C. 249 ; P. & H. c. 101, s. 32. Dig. 5106. But as the law stands now, by the 12 & 13 12&13Vic. Vic. c. 103, o. 9, nothing in the above 11th section shall be c. 103, s. 9. deemed to apply to any proceeding taken by a district poor law auditor for the recovery of moneys certified to be due rmder the 7 & 8 Vic. u. 101, s. 32; and no auditor shall 7 & 8 Vic. oonunence any such proceeding after the lapse of nine calendar o. 101, s. 32. months from the disallowance or surcharge by such auditor, or, in the event of an application by way of appeal against the same to the Court of Queen's Bench or to the Poor Law Board, after the lapse of nine calendar months from the determination thereupon. The six months' limitation does not apply to cases which are in their nature continuing, so that where defendant on the 4th February, 1869, and following days, disobeyed an order made July 20th, 1868 (under 18 & 19 Vic. c. 121, s. 13), 18&19Vic. commanding him, within two months, to prevent his chimney c. 121, e. 13. sending forth black smoke (oontraryto 29 & 30 Vic. o. 90, s. 19), 29&30Vic. it was held that, the nuisance being a continuing one, an c. go^ s. 19. information in July, 1869, would lie, notwithstanding 11 & 12 Vic. c. 43, s. 11. Miggins v. Chmrdians of Northwich Vnion, 22 L. T., N. S. 752. It seems, however, from the case of Marshall v. Smith, that (under the repealed act 11 & 12 Vic. c. 63, B. 115, at least), the words "continuing offence" would not include such an offence as allowing too thin a wall to '^- Digitized by Microsoft® ^ 34 SUMMARY PKOCBSS BEFORE JUSTICES. stand, though originally made in disobedience to a bye-law passed under sect. 34 of the repealed Local Government Act, 1858 (21 & 22 Vic. o. 98). 28 L. T., N. S. 538. Under ll&12Vic. sect. 39 of 11 & 12 Vic. c. 63, the offence of a town councillor c. 63, a. 39. who failed to deKver up a rate book in his possession by virtue of his ofSoe of overseer and collector, was held to consist in continuing to retain it. In such case the limitation of 11 & 12 Vic. 0. 43, s. 11, does not apply. Mayer v. Sardimg, supra.. But if an encroachment be made upon a highway by erecting a fence within fifteen feet from the centre thereof, in which case the mere first act is an offence, it is not a continuing offence so as to take the case out of the operation of 11 & 12 Vic. 0. 43, s. 11, and the penalty (recoverable under 27cS;28Vic. 27 & 28 Vic. c. 101, s. 51), must be proceeded ior within six c. 101,8.51. months after the erection of the fence. Ranking y. Forbes, 34 J. P. 486. The six months of sect. 11 do not begin to run until the offence is technically complete. Thus, where a local board of health had incurred expenses for the repair of premises, which expenses (after being duly settled and apportioned) the owner was, by 21 & 22 Vic. c. 98, s. 63 (repealed), conclusively bound to repay, unless within three months from the time of notice being given by the local board of the amount of the proportion so settled he should by written notice dispute the same, it was held that the six months did not begin to run till after the expiration of the ihiee months during which the apportionment might be disputed. Jacomb v. Dodgson, 32 L. J., Q. B. 125; 7 L. T., N. S. 674 ; Cox, M. C. 174. See also the case of Labal- mondierey. Addison, 28 L. J., Q. B. 36 ; 5 Jur., N. S. 481 ; Cox, 18&19Vic. M. C. 189. That case arose as follows: — By the Metropolitan c. 122, ss. Bmldiug Act, 1856 (18 & 19 Vic. o. 122), s. 73, all expenses 73, 103. incurred by the commissioners in respect of any dangerous structure shall be paid by the owner; and by sect. 103, all ex- penses to be recovered in a summary manner may be recovered as directed by the 1 1 & 1 2 Vic. c. 43. The owner of a dangerous structure not having taken it down, as required pursuant to the former act, the commissioners took it down, and the amount of expenses incurred was demanded of the owner and refused. A complaint was laid before a magistrate for the non-payment of the expenses within six months of the demand and rsfiisal, but beyond six months from the completion of the works : — Beld, that the matter of complaint was the non-payment of the ex- penses on demand, and that the time of limitation ran from the demand and not from the completion of the works; therefore, that the complaint was in time. So, an information for the offence of leaving a wife and child chargeable on the parish is in time it laid within sis months of the chargeability, though the desertion may have taken place more than six months previously. Reeves v. Yeates, 1 H. & C. 435. But if, where the offence consists in the refusal of a demand (as e.g. in Lababnondiere v. Addison, supra), six months have elapsed from the refusal, the prosecutor cannot revive the time to run as it were de novo merely by making a fresh demand. Digitized by Microsoft® TIME. 35 Thus, more than six months after a demand of immediate payment of a church rate, -which was not complied mth, a second demand was made and a refusal given. Three days after a simmions was taken out to levy the same by distress, under 53 Geo. 3, o. 127, s. 7 (repealed, except as to rates stiU 53 Geo. 3, enforceable), which the justices dismissed, on the ground that c. 127, s. 7. the matter of complaint arose more than six months before the summons: — Held, that the justices had acted within their juris- diction. Seg. V. Justices of Shrewsbury, 31 L. T. 114 (Q. B.): Cox, M. C. 25. \-* I' As to the construction of the words, ' ' within six calendar months," it was observed by the late Mr. Oke, that "in almost every case in which an act is to be done within a certain time after the happening of an event, the courts have adopted as a rule that the day on which the event happened [e. g. the com- mission of the ofEence or the time when the matter of complaint arose) is to be excluded, and that on which the act is done (e. y. , in the present case, the preferring the information or complaint) is to be included." Oke's Mag. Syn. (11th ed.), p. 121. The case of Attwoodv. Bmery, 26 L. J., C. P. 73, and a dictum in Lester v. Garland, 15 Ves. 248 — ^both cases arising out of civil transactions — ^may be considered to make rather agaiast the adoption of any hard and fast line ; but the conclusion of Mr. Oke, as being liberal and convenient, is primd facie plausible, besides being in accordance with a majority of decisions. It is true that in Mitchell v. Foster, 12 Ad. & E. 472; 9 Dowl. P. 0. 527 ; 5 Jut. 70 ; P. & H. Dig. 5142, where it appeared on the face of a conviction for an offence against the excise laws, that the plaintiff had been summoned on the 20th of September to appear before a justice on the 30th of September, and he not appearing on that day, that the magistrate proceeded to hear evidence, and convicted him in a penalty of bl., the conviction was held to be null and void, and the magistrate liable to an action for issuing a distress warrant, as the 4 & 5 WiU. 4, o. 51, 4 & 5 Will, s. 19, required that "ten days' notice at least" should be given 4, c. 51, s. to the party to appear, and the rule is inflexible to construe such 19. limitation of time as ten clear days. This decision, however, only settles the legal effect of the statutory phrase "at least," and has no direct bearing on 11 & 12 Vic. c. 43, o. 11. So in the computation of the calendar months' notice of action to a justice, required by the 24 Geo. 2, c. 44, n. 1 (repealed), the day of giving the notice, and the day of suing out the writ, were held both to be excluded in Totmg v. Siggon, 6 M. & W. 49 ; but this construction in favorem libertatis of the judicial office does not invalidate Mr. Oke's conclusion, and cf . Freeman v. Seed, infra. InSardg v. Sgle, 9 B. & C. 603 ; 4 M. & E. 295, which was an action against a magistrate for false imprison- ment (required by 24 Geo. 2, c. 44, s. 8, to be brought within 24 Geo. 2, six months after the act committed) , the plaintiff was discharged c. 44, s. 8. from prison on the 14th December, and issued his writ on the 14th June. He was held to be within the six months. See also the case of Pellew v. East Wanford Inhab., 9 B. & C. 134; 4 M. & E. 130, in which, under 9 Geo. 1, c. 22 (repealed), which DigitiSbAiy Microsoft® 36 SUMMARY PROCESS BEFORE JUSTICES. 3 Geo. i, c. 39. 11 & 12Vio, c. 43, s. 11. 13 & 14 Vic. c. 21, s. 4. 5 Anne, c. 14, ss. 2, 4. 9 Anne, c. 25. As to the hearing of complaints required that notice of an injury done to premises maliciously set on fire, for which an action is brought against the hundred, shall be given within two days from the time of its being com- mitted, the court held that these two days must be reckoned exclusively of the day on which the fire happened. And in Williams v. Burgess, 12 Ad. & E. 635, it was held, that under 3 Geo. 4, c. 39, which made void, as against the assignees of a bankrupt, any warrant of attorney executed by him, unless filed within twenty- one days after execution, the days must be reckoned exclusively of the day of execution ; and that, there- fore, a warrant executed on the 9th would be duly filed on the 30th of the month. See also Zoueh v. Mmpsey, 4 B. & Aid. 522 ; and see Weib v. Fairmmer, 3 M. feW. 473; 6 Dowl. P. C. 549, in which almost aU the then antecedent authorities are cited. Castle V. Surdit, 3 T. R. 623; and S. v. AdOerley, 2J)ougl. 463, which were relied on against the obvious opinion of the court in Yov/ng v. Siggon, supra, were considered by Parke, B., to have been overruled. 6 M. & W. 54. Semble, that the fraction of a day cannot be considered. S. v. Middlesex Justices, 14 L. J., M. C. 14. The 11th section of 11 & 12 Vic. c. 43, uses the words "calendar months." In legal acceptation, a calendar month means the time running between a day certain in one month to the same day of the month in the next month, e.g. where a statute required notice to be given ' ' one calendar month at least" before action brought, and the plaintiEE gave such notice on the 28th April, and issued his writ in the action on the 29th of the following May, it was held, that he had given due notice. Freeman v. Reed, 32 L. J. , M. C. 226 ; 8 L. T., N. S. 458. And now by 13 & 14 Vic. c. 21, s. 4, the word "month," in any statute, is to mean calendar month, unless words be added showing lunar month to be intended. Where in a penal statute a period for the commencement of the prosecution is limited, and the limitation of time occurs in a clause subsequent to the penal clause so as to be matter of defence, the conviction need not state that the limitation was complied with. Per Erie, J., and Denman, G.J., Wray v. Take, 12 Q. B. 501, 507. If the information be in due time, conviction may be at any time afterwards {E. v. Barret, 1 Salk. 382), provided that there is no statutory provision to the contrary ; but when a statute, either directly or by implication, or reference to another act, requires the conviction to take place within a given time, that direction must be observed. Cf . R. v. Tolley, 3 East, 467, where the limitation in question was only arrived at by com- paring the 2nd and 4th sects, of 6 Aome, c. 14, and that statute vrith 9 Anne, c. 26: 3 East, 467, 471, 472. And it'makes no diflEerenoe that the delay be with the consent of the defendant. Ibid. 468. XII. And be it enacted, that every suoi. com- plaint and information shall be heard, tried, deter- Digitized by Microsoft® HEARING. 37 mined, and adjudged by one or two or more andinfor- justice or justices of the peace, as shall be directed ™^*'^™^- by the act of parliament upon which such com- plaint or iaformation shaU be framed, or such other act or acts of parliament as there may be iu that behalf ; and if there be no such direction iu any such act of parliament, then such complaint or information may be heard, tried, determined and adjudged by any one justice of the peace {x) for the coimty, riding, division, liberty, city, borough or place where the matter pf such iafor- mation shall have arisen ; and the room or place Places in ia which such justice or justices shall sit to hear tices shall and try any such complaint or information shall ^o^° ^^^^ be deemed an open and public court, to which the ??'^'?*\ public generally may have access, so far as the fleemed an same can conveniently contain them {y) ; and the p^^^^j party against whom such complaint is made or in- allowed to formation laid shall be admitted to make his full counsel or answer and defence thereto, and to have the wit- ^ °™^y- nesses examined and cross-examined by counsel or attorney on his behalf ; and every complainant or informant in any such case shall be at liberty to conduct such complaint or information respectively and to have the witnesses examined and cross- examined by counsel or attorney on his behalf (s). (x) These words "would seem to imply that at every stage of the case, where there is no special prOTision in the act under which proeeediags are heing taken, the same justice must preside ; and in somewhat analogous cases decisions of that tendency have been given, e.g., in 1845 in the case of R. v. Griffin, 15 L. J., M. 0. 120, it was held that a conviction under 52 Geo. 3, c. 93, sched. L., r. 13 (repealed), by four oonrmissioners upon a summons issued by one (not being a justice) was bad within that act, and that it was not rendered valid by the now re- pealed General Conviction Act (3 Geo. 4, u. 23, o. 2). So iu Digitized by Microsoft® 38 SUMMAKY PKOCESS BEFOKE JUSTICES. 43 Geo. 3, 0. 141. 24 & 25 Vic. 0. 96, s. 33. ll&12Vic. c. 43, s. 29. 1841 — 42 it had already been held in Jones t. Gwdon, 2 Q. B. 600, that under the aforesaid repealed act (52 G-eo. 3, c. 93, Bched. L., rale 13), where one justice, though being also a commissioner, as required, had taken an information and issued" his summons, a different justice and commissioner could not hear and determine the complaint (3 Geo. 4, c. 23, s. 2), notwithstanding and though the former statute empowers any two commissioners or one justice, being also a commissioner, on complaint, &o. to summon the accused party to appear before him or them, and, &c. : — Seld, also, that the 43 Geo. 3, c. 141, did not protect a justice acting illegally in this behaU. In Tarry v. Newman, 15 M. & W. 645, however, decided 1847, in proceedings under 7 & 8 Geo. 4, c. 29, s. 39 (repealed, but similar to 24 & 25 Vic. c. 96, s. 33), for stealing an ash tree, the summons was granted by one magistrate and the conviction made by another. On an action for false imprison- ment brought against the convicting magistrate, the conviction was held to be gdod. And now the 29th section of the present statute (passed 1848) renders it unnecessary that the hearing should be before the same justice who took the information or who issued the summons, &c. (y) Even before the passing of this statute, a conviction before magistrates on mf onnation under the game laws was recognized to be a. judicial proceeding at which as many British subjects as there is room for were entitied (in the absence of special ground for their exclusion) to be present. Daubeney v. Cooper, 10 B. & C. 240. It is to be presumed that a, court of summary jurisdiction has the same power as superior courts of excluding women and boys in certain eases, as it certainly possesses that of expelling disorderly persons, &c., and also that it may on the request of either party exclude witnesses. Where, however, a witness remains after an order to leave his testimony cannot on that ground be rejected. Chandler v. Some, 1 Moo. & Rob. 423. (2) Before the repealed 2nd section of 6 & 7 Will. 4, c. 114, which is in effect re-enacted in the present statute, an attorney had no legal right to defend his client before a magistrate. Cf. Coxy. Coleridge, 1 B. & C. 37; 2 D. & R. 86; R. v. Barron, 3 B. & Aid. 432 ; R. v. Staffordshire Justices, 1 Chit. 217 ; Collier V. mc/cs, 2 B. & Ad. 663. And cf. Bessell v. Wilson, 1 E. & B. 489 ; 22 L. J., M. C. 94. See next section, note. The 11 & 12 Vic. 0. 43, s. 12, does not, however, give the c. 43, s. 12. defendant any right to have a case adjourned in order to pro- cure the assistance of counsel or attorney, although he has previously had no opportunity of procuring it. £. v. Biggins, 5 L. T., N. S. 605 ; F. & H. Dig. 5126. See also sect. 11, ante. An accused person cannot of course give evidence in his own behalf, except permitted by statute, see supra; but, judging by analogy from civil procedure, it seems that a pro- secutor conducting his own cause woidd have a right to address the bench as advocate without waiving his right to give evi- dence as a witness. Cohbett v. Hudson, 1 E. & B. 11 ; 22 L. J., Q. B. 11 ; F. & H. Dig. 8416. But before parties to civil ll&12Vic. Digitized by Microsoft® HEARING. . 39 suits were rendered admissible as witnesses by 14 & 15 Vio. l4&15Vio. u. 99, s. 2, a person -who conducted a cause as advocate could c. 99, a. 2. not be examined as a witness therein ; and in Stones v. Byron and Bwnn v. PacTewood (bail cases), Saunders & Cole, 248, 312, a new trial was granted, because in an action before the under- sheriff an attorney had given evidence after opening the case as advocate. Where a party conducts his own case and examines his own witnesses, counsel are not allowed to argue points of law for him. Moscati v. Lawson, 1 Moo. & Kob. 454 ; F. & H. Dig. 8416. So in Newton v. Chaplin, 10 C. B. 350 ; 19 L. J., C. P. 374, a plaintiEE, being a barrister, was not allowed to be heard as advocate on his own acoount after his counsel had addressed the court, on the ground that barristers being parties in any action, civil or criminal, stand on the. same ground as other parties. And of. sect. 12, supra. ^ As to the effect of confession in the absence of defendant by his counsel or attorney, of. S. v. Aves,post, sect. 14, nn. (. 100, s. 45 (Greaves' Consol. Acts, 2nd ed., p. 73), not immaterial that, by the com- mon law, autrefois acquit or convict of a misdemeanor could Digitized by Microsoft® 48 SUMMARY PROCESS BEFORE JUSTICES. 24 & 25 Vic. c. 100,8.45. 11 & 12Tie. c. 43, s. 14. ll&12Vic. c. 43, s. 14. 11 & 12Tio. c. 42. U&12Vic. c. 42, ss. 1, 8,20. 18&19Vic. c. 126, ss. 7,12. never he pleaded to an indictment for felony. 1 Ruse. Cri. and Mis., p. 838. But in i2. v. Walker, and S. v. Stanton, supra, a plea of autrefois convict of an assault before justices, under 9 Geo. 4, 0. 31, was held to be, by the statute, a bar to an indictment for felonious stabbing. In the judgment on B. v. Morris, stress was laid by Martin, B., and Byles, J., on the fact that 8. 45 of 24 & 25 Vic. c. 100, does not say the defendant shall be released from all further proceeding for the same act, but "for the same came;'''' which latter word was conjecturally interpreted to mean by Byles, J., "cause for the accusation," and by Martin, B. , " accusation " or " charge. ' ' The phrase in 11 & 12 Vic. 0. 43, s. 14, is "for the same matters," a word more difEcult to distinguish from " fact" than "cause." The 11 & 12 Vic. c. 43, s. 14, moreover, only speaks of the effect of a certificate of acquittal, which is something more than an im- plied negative of a particular quality or element in the act. But it is to be remarked that s. 45 of 24 & 25 Vic. c. 100, seems to put the certificate of acquittal under that act on a level with a summary conviction, which the judges, in S. v. Morris, supra, held not to bar an indictment for felony. The certificate spoken of in 11 & 12 Vic. c. 43, o. 14, is by that section declared to be a bar to "any subsequent information or complaint,'''' which may, perhaps, be held not to include matters for indictment. But in 11 & 12 Vic. c. 42, the words "charge," "complaint" and "information," are indifferently appUed to indictablel offences. See ss. 1, 8, 20, &c. It is, moreover, difficult to see* how the magistrates could give a certificate under s. 14 of c. 43, without pronouncing a partial acquittal on the fact of the assault, which, by the case supposed, would have been involved in the act of murder or manslaughter. And it is a settled principle that as regards facts the finding of justices is regarded like that of a jury, and that the court above will not disturb it. n. V. Reason, 6 T. E. 376. The language of 18 & 19 Vic. u. 126, which requires, by sect. 7, that under that act convictions and other proceedings shall be returned to the quarter sessions, and that a copy of such conviction, or of a certificate of dismissal, certified by the proper officer of the court or proved to be a true copy, shall be sufficient evidence to prove such conviction or dismissal, is more decided and comprehensive than that of 11 & 12 Vic. 0. 43, K. 14. The 12th section of the later act declares, that every person who thereunder either obtains a certificate of dismissal or is convicted shaU be released from all further or other criminal proceedings for the same cause. The certificate is a bar to any information, &c; " for the same matters" and "against the same party," so that a mere change in the party prosecuting wUl not sustain a subsequent informa- tion coming under this section. Wemyss v. Sopkins, 44 L. J., M. C. 101. But in matters not iucluded under 11 & 12 Vic. c. 43 as, e.g. orders in bastardy, the defendant must rely on the common law of res judicata, so far as it applies. A second application in bastardy has been entertained where the first was dismissed. R. v. Oook, S. v. Sickling, 21 L. J.; It. v. Machin 18 L. J. ; £. V. Gamt, L. R., 2 Q. B. 466. Digitized by Microsoft® INFORMATION. 49 la Wrirjlit v. Zondon General Omnibus Co., 20 W. N. (May 19, 1877), pp. 122, 123; Q.B. Div. (26tli Apr., 1877), it was held that compenBation given by a magistrate, under 6 & 7 Vic. o.86,s.28, 6&7 Vio. for injuries caused by furious driving, was a bar to subsequent o. 86, s. 28. proceedings in the county court, though the complainant had stated that the compensation named by the magistrate would be insufficient. So, likewise, a summary conviction under 24 & 24 & 25 Vio. 25 Vic. c. 100, ss. 42, 43, for assaulting a married woman, is, c. 100, S8. under sect. 45 of that act, a bar to a subsequent civil action for ^2, 43, 45. consequential damage by the husband. Masper v. Brown, 1 C. P. Div. 97; 45 L. J., O. P. Div. 203; Holden v. King, 25 W. R. 62; 35 L. T., N. S. 479. (A) Under this enactment there wiU probably always be some difficulty in distinguishing between an exemption, exception proviso, or condition, which the defendant is required to prove for his own benefit, and the absence of an element — negative or positive — essential to the offence which the informant or prose- cutor is required to establish affirmatively. The most trust- worthy principle is expressed in the proposition that a commit- ment must show on the face of it that the defendant has been convicted of what amounts to an offence under the act proceeded upon, e.g. a commitment of a servant under 4 G-eo. 4, o. 34, s. 3 (repealed), for absenting himseH Without sufficient reason, was held defective because it only alleged that he absented himself without assigning any sufficient reason, "because" (per Oole- 'ridge, J.) "he might have a sufficient reason, and ignorantly or perversely neglect to assign it." Re Geswood, 2 E. & B. 952 ; and cf. Seth Turner's case, 9 Q. B. 80; but cf. Mann v. Bavers, infra. In JS. v. Mallinson, 2 Burr. 679 ; 1 Str. 261, a conviction for imlawfully taking and Trillin g fish was quashed on the ground that it did not allege that the defendant had not the licence or consent of the owner, but that it merely alleged that he took and kUled the fish unlawfully and against the form of the statute. And so, in Baker v. Davis, 34 L. J., Q. B. 163 ; Cox, M. C. 136. Both these cases were decided before the passing of the 11 & 12 Vio. c. 43, but the principle on which they were decided has been acted on since the date of that statute. In Davis v. Scrace (decided 1868), L. E,., 4 C. P. 172 ; 38 li. J., M. C. 79; 19 L. T., N. S. 789, it was held, notwith- standing this section, that on a complaint tmder 2 & 3 Vio. u. 47, s. 42 (repealed), for keeping open a house for the sale of wine, &c., on Sunday afternoon, the same not being for the refreshment of travellers, the complainant was boimd to prove afBrmatively that the persons supplied were not travellers. A similar decision was (in 1873) pronoimoed in the case of Taylor v. Sumphregs, 17 C. B., N. S. 539, though under the earlier of the recent licensing acts (35 & 36 Vic. c. 94, ss. 24 35&36Vic. (now repealed) and 51, subs. 4) the onus of such proof was c. 94,s. 51, expressly taken from the informant and placed upon the subs. 4. defendant. Soberts v. Bumphregs, 21 W. E. 885 ; and see further, 37 & 38 Vic. c. 49, s. 10. It is clear, however, that 37&rfsvic. the 11 & 12 Vic. c. 43, s. 14, has not in all cases shifted the 0.49, s. lU, burden of proving exempting oircumstarnoes on the defendant. Digitized by Microsoft® ^ 50 SUMMARY PROCESS BEFORE JUSTICES. 35&36Tic. c. 94, S3. 24, 51. 37&38Vio. c. 49, s. 10. 33 Hen. 8, 0. 9, s. 16. 36&37Vio. c. 86, s. 24, avibs. 2. For example, the owner of cattle cannot be convicted for not giving notice to the poHoe of their heing affected with disease within the terms of the Contagious Diseases Act, and the orders in counoU made thereunder, unless he had actual know- ledge that the cattle were so afEected. Mcholls v. Hall, 21 W. R. 679 (1873) ; Carroll v. Ewers, 7 Ir. L. R., 226, Q. B. ; but see contra, Morden v. Porter, 7 C. B., N. S. 641. At the same time, both before and after the passing of the act, a small degree of pritnd facie evidence has been held sufficient to throw on the defendant the burden of proving the exempt- ing circumstance. In Mann v. Dmers, 3 B. & A. 108 (1819), where a party, charged under 17 Geo. 2, c. 5 (repealed), with unlawfully re- turning without a certificate to a parish from which he had been removed, confessed himself gtulty, and this appeared on the conviction, the judges of the King's Bench held the con- viction good upon the face of it, on the ground stated by Abbott, 0. J., that the returning to the parish without a certificate was at least primA facie evidence of the party being an idle and disorderly person, and then it was for the defendant to show that he had a lawful excuse for returning. Notwith- standing this decision, and the provision in the above section, it will always be necessary to consult the particular statute proceeded under, and to negative specifically in the convic- tion all exemptions, &c., with a view to avoiding questions such as might, e. g. have arisen on the facts in Taylor v. Kmnphreys, 17 0. B., N. S. 639 ; 34 L. J., M. C. 1 ; Davis V. Scrace, 38 L. J., C. P. 79; Morgan v. Hedger, 40 L. J., M. 0. 13. The question there raised under 35 & 36 Vic. 0. 94, ss. 24, 51 (subs. 4), was apparently considered to re- quire the settlement of a subsequent statute (37 & 38 Vic. e. 49, s. 10) ; and especially where the exemption is contained m. the section creating the offence is it doubtful whether the provision in sect. 14, supra, relieves the complainant from the burden of proof. In such eases it seems that the action imputed to the defendant, together with the absence of the specified excuse, &c., are regarded as constituting in combina- tion a composite act, to which the law attaches a penalty. An instructive case on this subject is that of H. v. Clar/ee, Cowp. 35, cited by Paley on Summary Conviction (4th ed.), 195. There the defendant was convicted imder sect. 2 of 17 Geo. 2, u. 5, (repealed, and now superseded by 5 Geo. 4, c. 83), for playing at a certain unlawful game with bowls. The 33 Hen. 8, o. 9, s. 16, had made the playing at bowls, out of the players' own orchard or garden, unlawful ; and it was held that the con- viction, not aUegiug this essential fact, could not be supported, as the 17 Geo. 2 did not specify bowls, but mentioned only playing at any unlawful game. It was also held, that admis- sion on the part of the defendant of the facts alleged in the conviction would not cure this defect, even though the con- viction alleged that the defendant did not show any sufficient cause why he should not be convicted thereof. Under the Education Act, by s. 24, subs. 2, of 36 & 37 Vic, Digitized by Microsoft® EVIDENCE. 51 0. 86, the onus of preying exceptions, exemptions, &o., is thrown, upon the defendant, ands. 37 of 39 & 40 Vic. o. 79, in- corporates this provision. Semble, that where an act is only unlawful as being in con- travention of a rule established by certain persons having the necessary authority, a conviction for committing such act ought to make it clear that such rule was estabUdied and by properly authorized persons. Newman v. Zord Sardwick 7 I/. J., M. C. 107. Aid the court will not assume that such persons have made a rule including the act of the defendant, merely because it was their duty to make a rule of some sort. Ibid. ; andoi. Williamsy. JUast^India'Co., 3 East, 192. Whether it might be assumed if it were the duty of the persons in question to make such a rule as would include the act of the defendant, qumre. Ibid. In Huggins v. Ward, 21 W. R. 914, it was held that the production of a copy of an order in council purporting to be printed by the government printer was Ba&- cient primd facie evidence of the order itself, without reference to whether or not it had been published. 39 & 40 Vic. c. 79, s. 37. XV. And be it enacted, that every prosecutor of any sucli information, not having any pecuniary interest (i) in the result of the same, and every complainant in any such complaiat as aforesaid, whatever his interest may be iu the result of the same, shall be a competent witness to support such information or complaiat respectively; and every witness at any such hearing as aforesaid shall be examined upon oath or afSrmation, and the justice or justices before whom any such witness shall appear for the purpose of being so examiaed shall have full power and authority to administer to every such witness the usual oath or affirmation. (i) The incompetency of informers on account of interest is now removed by the 14 & 15 Vic. c. 99, s. 2, which enacts that on the trial of amy issue joiaedor of any matter or question,_ or on any inquiry arising in any suit, action, or other proceeding in any court of justices, or before any person having, by law or by consent of parties, authority to hear, reoeive,_ and ex- amine evidence, the parties thereto and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be Prosecu- tors and complain- ants iu cer- tain eases to be deemed competent vritnesses, and ex- amined upon oath, &c. 14 & 15 Vic. 0. 99, s. 2. Digiti^d% ly Microsoft® 52 SUMMARY PKOCESS BEFORE JUSTICES. competent and compellable to give evidence, either vica voce or by deposition, according to the practice of the coijrt, on behalf of either or any of the parties to the said suit, action, or other proceeding. The exceptions herein referred to are, so far as they relate to proceedings before justices, contained in the 3rd Sect. 3. section, which says that nothing "herein" {i.e. in the 14 & 15 Vic. c. 99) shall render any person who, in any cr imin al proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against him- self or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. Some other causes of incompetency are, however, retained by 16 &17Vic. the Evidence Amendment Act, 1853 (16 & 17 Vic. c. 83), which C.83, SS.2, 3. enacts (ss. 2 & 3) that none of its clauses shall render any husband competent or compellable to give evidence for or against his vrife, or any wife competent or compellable to give evidence for or against her husband in any criminal proceeding ; and that no husband shall be compellable to dis- close any communication made to bim by his wife during the marriage, and no wife shall be compellable to disclose any com- munication made to her by her husband during the marriage. Assuming the proceeding in question to be of a criminal character, it may be stated as a general proposition, applying equally to indictments and to summary process, that one of several prisoners jointly indicted (while in charge of the jury) cannot be called as witness for another, ij. v. Fayne, L. E., 1 C. C. E. 349 ; 41 L. J., Ex. 65 ; 26 L. T., N. S. 41. And the wife of a prisoner jointly indicted and given in charge to the jury with other prisoners, cannot be called as a witness by one of the other prisoners for him while the husband is so in charge. E. v. Thompson, L. E., 1 C. C. R. 377; 41 L. J., M. C. 112; 26 L. T., N. S. 667. But what constitutes a criminal proceeding in view of the competency of witnesses is sometimes a doubtful question. It has been suggested that the test of a defendant's admissibUity as witness, is, whether he could or could not be convicted without a mens rea, without which, according to Hearne v. Garton and Stone, 2 E. & E. 66; 28 L. J., ' „ , __.„ ^- C!. 216, («. g.) a person cannot be convicted (as under the 5 & 6 Will. G. W. E. Act, 5 & 6 WiU. 4, c. cvii.), for sending dangerous 4, c. cvu. goods by railway. But inilfo)-«to« v. Porter, 7 C. B., N. S. 641; 29 L. J., M. C. 213,^ it was argued for the respondent, that he could not be convicted of trespass in pursuit of game under 1 & 2 Will. 1 & 2 Will. 4, u. 32, s. 30, unless he were conscious of commit- 4, c. 32, ting a trespass ; because (as was assumed) the respondent in '• ^"- such oases could not be a competent witness. WiUiams and ■Willes, JJ., appear to have held (dubitante, Keating, J.), that 1 & 2 Wm S^"^*y li^O'W'ledge was not necessary; yet it has been held, that 4 J, 32 'an information against a party, under 1 & 2 WUl. 4, c. 32, ,23, Digitized by Microsoft® EVIDENCE. 53 s. 23, for unlawfully using snares for taking game, he not being authorized so to do for want of a game certificate, is a criminal proceeding for an offence punishable en summary con- viction within 14 & 15 Vic. c. 99, s. 3, and, therefore, the ll&lSVic. party charged is not rendered a competent witness by that c. 99, s. 3. statute. Oattellv. Ireson, E., B. & E.'91 ; 27 L. J., M. C. 167; E. & H. Dig. 2843. — In this case the judges (who were unani- mous) appear to have relied chiefly on the fact, that the prisoner was liable to hard labour in default of payment of the fine. . . . The test, according to Lord Campbell, in such cases seems to be, to consider whether it is sought to recover a sum of money in the nature of a debt from a person, as in bastardy cases, or to inflict punishment of an exemplary and pubHo nature. Thus doubts have been raised in bastardy cases as to the competency of the putative father to be sworn as a witness on his own behalf ; but Erie, J., has held him to be competent, on the ground that the proceedings on an afSlia- tion order are of a civil and not of a criminal nature. Ex parte CrawUy, 24 L. T. 244 ; Powell's Evidence (2nd ed.), 37, 38. Agreeably with this principle, in the case of Att.-Gen. v. nadloff, 10 Ex. 84; 23 L. J., Ex. 240, it was held that on the trial of an information by the Attorney- General to recover penalties for smuggling, under 8 & 9 Vic. u. 87 (repealed), the defendant was not rendered a competent witness by 14 & 15 14&15Vic. Vic. c. 99; but Piatt and Martin, BE., dissented from this c. 99. view, and now it is enacted by 28 & 29 Vic. o. 104, s. 34, that 28 &29Vic. ss. 2 and 3 of 14 & 15 Vic. c. 99, and 16. & 17 Vic. c. 83, c.l04,s.34. shall extend and apply to proceedings at law on the revenue 14&15Vio. side of the exchequer, and that any proceedings at law on the c. 99, ss. 2, revenue side of the court shall not be deemed a criminal pro- 3. ceediug within the meaning of the said sections and act as 16 & 17 Vic. extended. c. 83. In several other instances the legislature has stepped in to qualify as witnesses defendants who would otherwise have been incompetent. Thus an alehouse keeper charged under 9 Geo. 4, c. 61, s. 21 (repealed) with allowing persons of bad character to assemble at his house was formerly held not to be a competent witness in his own behalf. Farker v. Green, 31 L. J., M. C. 133 ; 6 L. T., N. S. 43. But now, by sect. 61, subsect. 4, of 35 & 36 Vic. c. 94, in all cases of summary pro- 35 &;36Vio. ceedings under that act the defendant and his wife shall be c. 94, s. 51, competent to give evidence. So, by the 16th section of the subs. 4. Masters and Servants Act, 1867 (30 & 31 Vic. c. 141), the ac- 30&31Vic. cused party was allowed to give evidence. This statute has c. 141, s. 16 since been repealed by 38 & 39 Vic. o. 86, s. 17, but the Em- (repealed), ployers and Workmen Act, 1875 (38 & 39 Vic. c. 90), says 38&39Vic. (sect. 4), "A dispute under this act between an employer and c. 86, s. I7! a workman may be heard and determined by a court of sum- gg jj^ggyij.^ mary jurisdiction, and such court for the purposes of this act 0. 90 s. 4. ' shall be deemed to be a court of civil jurisdiction." And it ' ' ' " has been judicially decided that a charge of absence by a Digitized by Microsoft® 54 SUMMARY PEOCESS BEFOEE JUSTICES. workman from his employer's service constitutes a " dispute ' between them within the meaning of this section. Clewson v. Subiard, 1 Ex. Div. 179. In indictable cases the evidence of an incompetent witness may be withdrawn from the jury upon the iacompetency appearing during his examination in chief, although he has been examined previously on the voir din, and pronounced competent ; M. v. Whitehead, I C. C. K. 33. And it is to be pre- sumed that this rule, so far as it is applicable, would govern cases if tried summarily before a magistrate. For expenses of witnesses, cf. infra, b. 18. Power to XVI. And be it enacted, that before or during justices to ... „ I'l- !• ^ • 1. adjourn such Jiearmg 01 any such miormation or complaint of^c^e^^ it shaU be lawful for any one justice, or for the ^t d°™' justices present, in their discretion, to adjourn the fendant, hearing of the same to a certain time and place to him to go be then appointed and stated in the presence and dischSge™ heariug of the party or parties, or their respective hiTomi"^ attomies or agents then present, and in the mean- reoog- time the said justice or justices may suffer the defendant to go at large, or may commit (D.) him to the common gaol or house of correction or other prison, lock-up house, or place of security in the county, riding, division, liberty, city, borough, or place for which such justice or jus- tices shaE be then acting, or to such other safe custody as the said justice or justices shall think fit (/«), or may discharge such defend- ant upon his entering iato a recognizance (E.), with or without surety or sureties, at the discre- tion of such justice or justices, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned; and if at the time or place to which such hearing or further hearing shall be so adjourned, either or Digitized by Microsoft® nizance ; ABJOURNMENT. 55 both of the parties shall not appear personally, or by his or their counsel or attomies respectively, before the said justice or justices, or such other justice or justices as shall then be there, it shall be lawful for the justice or justices then there present to proceed to such hearing or further hear- ing as if such party or parties were present ; or if the prosecutor or complaiaant shall not appear, the said justice or justices may dismiss such infor- mation or complaint, with or without costs, as to such justices shall seem fit : provided always, that but if he ■ in all cases where a defendant shall be discharged appear, the on recognizance, as aforesaid, and shall not after- HSb^^ wards appear at the time and place mentioned in *^^ recog- •^ -^ . ^ mzance to such recognizance, then the said justice or justices the clerk of who shall have taken the said recognizance, or any other justice or justices who may then be there present, upon certifying (F.) on the back of the recognizance the nonappearance of such accused party, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed su&oientprimd facie evi- dence of such nonappearance of the said defendant. {k) This section empowers a magistrate to adjourn a hearing, and commit the defendant to the House of Correction mean- while, though, by the act under which the defendant is charged, the magistrate is " empowered and required to pro- ceed immediately to the con"viction or acquittal," &c. Gelan V. Sail, 27 L. J., M. C. 78. But an action of trespass will lie against a magistrate for remanding a party charged with felony for an unreasonable time, though without any improper motive ; and semble that a warrant of commitment for an un- reasonable time is wholly void. Davis v. Capper, 10 B. & C. Digitized by Microsoft® 56 SUMMARY PROCESS BEFORE JUSTICES. 28; F. & H. Dig. 5132. Although a defendant has a right, 11 & 12 Vic. under sect. 12, mpra, to make his full defence by counsel or c. 43, s. 12. attorney, this does not giye him a right to have a case ad- journed in order to procure such assistance, even though he has had no opportunity of procuring it. JJ. t. Siggins, 5 L. T., N. S., Q. B. 605 ; Cox, M. C. 165. Form of XVII. And be it enacted, that in all cases of convictions ... , :• t <• p i and orders, conviction wnere no particular lorni oi sucn con- viction is or shall be given by the statute creating the offence or regulating the prosecution for the same, and m all cases of conviction upon statutes hitherto passed, whether any particular form of conviction have been therein given or not, it shall be lawful for the justice or Justices who shall so convict to draw up his or their conviction on parchment or on paper in such one of the forms of conviction (I. 1 — 3) in the schedule to this act contained as shall be applicable to such case, or to the like effect ; and where an order shall be made, and no particular form of order is or shall be given by the statute giving authority to make such order, and in all cases of orders to be made under the authority of any statutes hitherto passed, whether any particular form of order shall therein be given or not, it shall be lawful for the justice or justices by whom such order is to be made to draw up the same in such one of the forms of orders (K. 1 — 3) in the schedule to this act con- tained as may be applicable to such case, or to the like effect (J) ; and in all cases where by any act of parliament authority is given to commit a person to prison, or to levy any sum upon his goods or chattels by distress, for not obeying any order of a justice or justices, the defendant shall Digitized by Microsoft® CONVICTIONS. 57 be served with a copy of tke minute of sucli order before any warrant of commitment or of distress shall issue in that behalf, and such order or minute shall not form any part of such warrant of com- mitment or of distress. (2) The reetilt of this section, and of s. 32, post, is that justices, in drawing up warrants of commitment upon sum- mary convictions and orders within the meaning and operation of the 24th section, infra, have only to follow the forms in Sched. P. 1—5. E. v. Hyde, 7 E. & B. 859, u. ; 21 L. J., M. C. 94 ; F. & H. Dig. 5151 ; Re Allison, 24 L. J., M. C. 73; Mggington v. Mayor of Lichfield, 5 E. & B. 100; 24 L. J., Q. B. 360. But the sufficiency of the warrant will not cure an illegal arrest, as, e.g. one effected on Simday {ibid., and E. & H. Dig. 1983) ; and it appears that a person so illegally arrested cannot be legally detained by a second warrant sub- sequently lodged against him, though a ca. sa. issued by a thii'd party, and without collusion, is a valid ground for refusing to discharge the prisoner. Ibid. It is not essential that the conviction and warrant of commit- ment should be in the same document {Re Gray, 2 D. & L. 549), and when the warrant is separate it does not require, the for- malities of a conviction {Ex parte Bailey, 3 E. & B. 617 ; and cf. Lindsay v. Leigh, 11 Q. B. 455), nor that a formal order should be drawn up before the issuing of the distress or com- mitment warrant. Ratt v. Farkinsmi, 20 L. J., M. G. 208 ; E. & H. Dig. 3314, 3315 ; ante, s. 14 a. (/) ; and see R. v. Huntingdonshire Justices, 19 L. J., M. 0. 127. The court will not, under 11 cfe 12 Vic. c. 44, s. 5, order jus- tices to. draw up one joint conviction, instead of two separate convictions against each of two persons against whom a joint information has been laid. R. v. Clee, 21 L. J., M. C. 112. Where an offence created and made penal by statute is in its nature single, one single penalty only can be recovered, though several join in committing it; but if the offence is in its nature several, each offender is separately liable to the penalty. E. g., upon an information and verdict against several per- sons for obstructing a custom-house officer, contrary to 8 Geo. 1, c. 18, s. 25 (repealed), it was ruled that each defendant was separately liable to the penalty imposed by the act. R. v. ClarJc, 2 Cowp. 610. And so of two partners, separately con- victed under 3 & 4 Will. 4, u. 53, s. 44 (repealed), for jointly unshipping goods, the duties on which had not been paid. R. v. Dean, 12 M. & W. 39 ; 13 L. J., Ex. 33 ; E. & H. Dig. 8198. And in R. v. Hunter, 5 T. E. 542, an analogous decision was pronounced upon several persons indicted under the Toleration Act (1 Will. & Mary, c. 18) for disturbing a Dissenting congre- 1 WUl. & gation. But in such cases the conviction must impose the Mary, o. 18. penalty severally, not jointly, or it will be bad. Morgan v. Brown, 4 A. & E. 515; ^,1?^ J,,^5^,0 J„^ But two per- 58 SUMMARY PROCESS BEFORE JUSTICES. 29 Car. 2, c. 2, s. 7. sons could not be convicted in separate penalties under 5 Anne, u. 14, s. 4, for using a greyhound to destroy game. M. V. Bleaadah, 4 T. B. 809 ; P. & H. Dig. 4167. In Brook v. Millikm (1789) it was decided that two penalties might be inourred on the same day under the 12 Geo. 2, c. 36 (repealed), for selling books originally written and published here and afterwards reprinted in any other country and im- ported into this, if the acts of sale be distinct. 3 T. E. 509. And ia R. v. Scott, 4 B. & S. 368 ; 33 L. J., M. C. 15 ; 8 L. T., N. S. 662 ; F. & H. Dig. 5143, a comdotion under 19 Geo. 2, u. 21, s. 1, setting forth that the defendant did " profanely curse one profane curse" (setting it out) " twenty several time repeated," and adjudging birn "for his said offence" to forfeit the sum of 11., being a cumulative penalty at the rate of 2s. for each repetition of the oath, was held good. But a person can, in a legal sense, be only gmlty of a single offence on the same day by " exercising his ordinary calling on a Sunday," contrary to the stat. 29 Car. 2, c. 2, s. 7 ; and if a justice proceed to convict him in more than one penalty for the same day, it is an excess of jurisdiction, for which an action will lie before the convictions are quadied. Cripps V. Durden, 2 Cowp. 640. And the same principle pro- bably regulated the decision in Matthews' ease, wherein it was 4 & 5 Anno, held that a person could not be convicted on 4 & 5 or 6 Anne,* ''• '■*• c. 14, in more than one penalty (for killing game without a licence) on the same day. E. v. Matthews, 10 Mod. Rep., Case 22, Trinity Term, 10 Anne ; and cf. ante, s. 10, n. («). An order ought to show that (when necessary) the de- fendant has been summoned [Lahalmondiere v. Frost, 28 L. J., M. C. 155), and that there has been some adjudication, ex- press or implied, of the truth of the matters of the complaint. M. V. Williams, 18 Q. B. 393. In Stamp v. Sweetland, 8 Q. B. 13 ; 14 L. J., M. C. 184, a conviction (pronounced before the passing of 11 & 12 Vie. c. 43), stating in detail that a toU-coUeotor had taken a smaller toU. than he should have done " contrary to the form of the statute," was held sufficient, though no provisions of any particular turnpike act, or orders or resolutions of trustees or commissioners, were set forth or referred to. Intheformsof conviction given in Sohed. I., 1, 2, and referred to in this section, payment of the penalty and punishment by imprisonment are imposed alternatively, and it is no doubt a safe course to foUow this form ; but in M. v. Helps, 3 M. & S. 331, it was held that the justices need not upon the conviction adjudge that the offender should be committed to prison in default of payment forthwith, but that they might, after 11 & 12 Vic. affirmance of the conviction or appeal, commit the offender for c-43, ss. 22, refusing to pay the penalty. And of. post, ss. 22, 23, 27. -3j 27. It may be fitting to observe here that the courts appear to have varied at different times as to the degree of severity with which they were disposed to regard orders and convictions relatively. Thus it has been held that an order for pay- * TtegJtaatfcfeJiaAcvDratfi^ different editions. COSTS. 59 ment may be good in part and bad ia part, at least with respect to time, M. v. Green, 20 L. J., M. 0. 168; It. v. Winster, 19 L. J., M. C. 185, whereas a con-notion, if bad in part, is vitiated altogether, JJ. v. Cotterall, 2 Str. 900; 1 T. R. 249 ; Paley, Sum. Conv. (5th ed.) 160; though, semble, that by con- sent a conviction may be set aside as to part of the judg- ment; Ibid, and ij. v. Sale, Cowp. 728. It is perhaps in consequence of this greater latitude of construction in the case of orders that a second order cannot (as in the case of convictions) be drawn up and substituted for one which is found to be defective or informal. R. v. Cheshire Justices, 5 B. & Ad. 439, where an adjudication under 11 Geo. 2, o. 19, 11 Geo. 2, s. 4, inflicting penalties for fraudulently removing goods, was c. 19, s. 4. held to be an order. On the distinction between orders and convictions, cf. Paley, Sum. Conv. (5th ed.) 159 — 164. It used to be said that orders differed from convictions in this, that the evidence was required to be set out in the latter and not in the former. R. v. Lloyd, 2 Str. 996. But in E. v. Rose, 3 D. & L. 359, Patteson, J., intimated thatthe inclination of the courts in modem times was to treat orders of a final nature as equivalent with convictions ; and in M. v. ^Radnorshire Justices, 9 Dowl. 98, Williams, J., expressed a doubt whether the decision in JR. v. Halcott, 6 T. E. 583, had not practically done away with all intelligible distinction between the two documents. Though an informal order may not be replaced by a subsequent one in the same matter, yet by 12 & 13 Vic. c. 45, s. 7, the quarter 12 & 13Vic. sessions can amend an order on appeal, and so by the same c. 45, s. 7. section can the Supreme Court do if the matter is brought up on certiorari. XVIII. And be it enacted, that in all cases of Power to summary conviction or of orders made by a justice ^^ar'd or justices of tbe peace it shall be lawful for the X^},si^g^u justice or justices maMng the same, in his or their be specified discretion, to award and order iu and by such con- tion or viction or order that the defendant shall pay to dismissal, the prosecutor or complainant respectively such ™^oyered^ costs as to such justice or justices shall seem just by distress. and reasonable in that behalf ; and in cases where such justice or justices, instead of convicting or making an order as aforesaid, shall dismiss the iuformation or complaiut, it shall be lawful for Tii-m or them, in his or their discretion, in and by his or their order of dismissal to award and order Digitized by Microsoft® 60 SUMMARY PKOCESS BEFORE JUSTICES. that the prosecutor or complainant respectively shall pay to the defendant such costs as to such justice or justices shall seem just and reasonahle, and the sums so allowed for costs shall in aU cases be specified in such conviction or order or order of dismissal aforesaid, and the same shall he recover- able in the same manner and imder the same warrants as any penalty or sum of money adjudged to be paid in and by such conviction or order is to be recoverable ; and in cases where there is no such penalty or sum to be thereby recovered then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and iu default of such distress by imprisonment, with or without hard labour, for any time not exceeding one calendar month, unless such costs shall be sooner paid (m). (m) The large discretion given by this section to the court may appear to dispense with precise definition of the class of expenses for which the prosecutor is to be reimbursed ; but it is to be presumed that a magistrate will be in some degree guided by the priaciple of cases decided without reference to this statute. Thus, though it is not a general rule that parties, if witnesses, are to have an allowance for their attendance, yet in Dowdell v. Austr. Steam Nm. Co. (3 E. & B. 902 ; 23 L. J., Q. B. 369 ; F. & H. Dig. 3601), where a defendant having obtained a rule for a new trial (which was discharged) the plaintiff, who was a witness in the case, remained in this country tiU the discharge of the rule, the latter was held (if a necessary witness) entitled to maintenance money on the ground that he could not have attended a second trial, if one was ordered, unless he had remained, and that his remaining incapacitated him from earning his subsistence. And this rule appears to obtain, though the party to be compensated be not a sea-faring man. Anscll v. Marshall, 22 L. J., Q. B. 118. In je. V. Major (Dears. C. C. 13 ; 21 L. J., M. C. 21), where an indictment for perjury had been removed by certiorari, the prosecutors, who were acting as executors, were held entitled 5 & 6 Will, to costs under 5 & 6 WUl. & Mary, c. 11, as "persons grieved," 6 Mary, &o., though the perjury caused them no actual damage, it being c. 11. held sufficient that it might have caused them damage and created a difficulty. Digitized by Microsoft® COSTS. 61 life 12 Vic. c. 43, B. 18. 7 Geo. 4, c. 64, s. 22. -re- 5 & 6 Will. It seems that a court has no power to order payment, as part of the expenses of a prosecution, of the costs incurred by the ■warders of MUbani prison, in bringing down to Wells a prisoner in custody at Milbank as an escaped convict to be tried at Wells on a charge of larceny from the person. £. v. Waters, 8 Cox, C. C. 350; F. & H. Dig. 2893. And although the 18th sec- tion of 11 & 12 Vic. 0. 43, includes in terms "all oases of summary conviction or of orders made by justises," yet it has been held in .8. v. JSxeter {Treasurer of), 5 M. & R. 167, that where an indictment for felony is removed by certiorari and tried at 7iisi prius, neither the judge at nisi prius nor the Queen's Bench has (by whichever side the indictment be re- moved) power to award costs under 7 Geo. 4, c. 64, s. 22 ; and if any analogous case could conceivably arise in the case of summary jurisdiction, it is probable that costs, if given, would be confined to matters coming with reasonable strictness within the judicial functions of the court. Under 7 Geo. 4, c. 64, it has been held, that the parties to a case reserved, cannot by agreement give the judge such power in respect of costs as he could have exercised at the trial, ij. v. Hornsea, Dears. 0. C. 291. Where a, statute — as, e.g., 5 & 6 Will. 4, c. 50, s. 90 quires the court of quarter sessions on appeal against an order 4, c. 50, to award such costs as shall be incurred in prosecuting the s. 90. appeal, the amount ought to be specified. Sellwood v. Moimt, 1 Q. B. 726; E. v. Wargrave, 2 Nol. P. L. 574; E. v. Skinn, 9 East, 25. And this rule appears to be equally appUoable whether the sessions have a jurisdiction to award costs or not. Sellwood V. Mount, supra. In Bott v. Aekroyd, 28 L. J., Q. B. 920; Cox, M. C. 162, the defendants, justices of the peace, convicted the plaintiff in a penalty of 21. and costs or two months' imprisonment. Against this decision, which was given orally, the plaintiff gave notice of appeal, and immediately left the court. A conviction and warrant of commitment were afterwards drawn up, in which blanks were left for the amount of costs to be inserted, and so signed by the defendants. The blanks were afterwards filled up by the magistrates' clerk, and the plaintiff was arrested on the warrant, when he, for the first time, became aware of the amount of the costs: — Seld, that the signing in blank by the defendants was a mere irregu- larity, and not an excess of jurisdiction; and the plaintiff having brought an action for false imprisonment was rightly nonsuited under the 11 & 12 Vic. c. 44, s. 1. And cf. infra, sects. 22 — 24, 32. In E. v. Westmoreland Justices, 12 L. J., Q. B. 317; and M. C. 113, where the costs of certain appeals against an order of removal were not ascertained during the sitting of the court, but were afterwards taxed by the clerk of — 24, 32, the peace, it was held that the taxation was not irregular, but that two appeals against the same order were unwarranted, and that the second was therefore bad. In B. V. Long, MS., Q. B. E. 1841 ; 1 Q. B. 740 ; 1 G. & D. 367; 6 Jut. 98; E. & H. Dig. 9352, it was held that the re- corder of a municipal sessions might on ordering costs refer Digitized by Microsoft® 11 &12Vic. c. 44, s. 1. 11 & 12 Vic. 43, as. 22 62 SUMMARY PROCESS BEFORE JUSTICES. 29 Car. % c. 7, BS. 1, 2. ll&12Tio. c. 43, s. 24. 7 Geo. 4, c. 64. 24 & 25 Vic. CO. 96, 97. 24&25Vic. 0. 100, ss. 42, 43. the taxation of the amomit to an officer of the court; but such taxation must be adopted by him during the continuance of the same sessions. An order for such costs founded on a sub- sequent adoption would be invalid. The rule established in Sellwood V. Motmt does not prevent the court of sessions from directing their officer to tax the costs and axiopting his taxation as their own, as was held to be proper in JSx parte SoUoway, 1 D. P. C. 26 ; but it is not lawful to. make an order for " costs incurred," and then to leave the amoimt to be ascer- tained by an officer after the sessions. 1 Q. B. 735. The direction of the justices to the clerk of the peace to ascertain the amount of costs is not a peremptory order, but a mere pre- limJTiary memorandum of what he is to do, which they subse- quently confirm by their order. Ex parte Solloway, 1 D. P. 0. 26, 27. If the trial of an indictment for felony is postponed at the instance of the prisoner on account of the illness of a witness, the prisoner is never required to pay the costs of the prosecu- tion. And, in general, where the trial of a ease of felony is postponed, the court will not make any order for the expenses till after the trial has actually taken place, if. v. Simtcr, 3 C. & P. 591. Costs are not to be imposed alternatively with a punishment not provided by the statute under which proceedings are taken. In S. V. Bartm, 12 Q. B. 389 ; 18 L. J., M. C. 66, a convic- tion under 29 Car. 2, c. 7. ss. 1, 2, adjudging the offender to forfeit and pay 5s. and lis. costs, and that the several sums if not paid should be levied by distress, and in default of suffi- cient distress that the party convicted should be set publicly in the stocks for two hours unless the several sums should be sooner paid, was held bad on the ground that the punishment of the stocks was not a method provided by the act of Charles II. for recovering the pecuniary penalty, but a substituted punish- ment. And cf. post, a. 24. An interlocutory order for costs was held illegal under 7 Geo. 4, ^. 64, and presumably is so under 11 & 12 Vic. o 43 S,. V. Yoimg, 2 Cox, C. C. 280. The 108th section of the Larceny Act (24 & 25 Vic. c. 96), provides that, where any person shall be summarily convicted before a justice of the peace of any offence against that act, and it shall be a first conviction, the justice may, if he shall so think fit, discharge the offender from his conviction, upon his making such satisfaction to the party aggrieved for damages and costs, or either of them, as shall be ascertained by the justice. A similar clause (66) ooours in the Malicious Injuries to Property Act (24 & 25 Vic. c. 97) ; and by c. 100 of the same session the Injuries to the Person Act, s. 42, where any person shall unlawfully assault or beat any other person, two justices upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, &o. either be committed to the common gaol, &c. or else shall pay such fine as shall appear to the justices to be meet, not exceed- Digitized by Microsoft® COSTS. 63 ing', together with costs (if ordered), the sum of five pounds, and in default of payment he may be imprisoned for two months with or without hard labour. By sect. 43, when any person shall be charged before two justices with an assault or battery upon any male child whose age shall not, in the opinion of suoh justices, exceed fourteen years, or upon any female, the said justices, &o. may proceed to hear and determine the same in a summary way, and if the same be proved, every suoh offender shall be liable to be imprisoned, &o. or to pay a fine not exceeding (together with costs) the sum of twenty pounds, and in. default of payment to be imprisoned in the common gaol or house of correction for any period not exceeding six months, unless such fine and costs be sooner paid. See also 2 cfe 3 Vic. c. 47, s. 62. See further as to costs sects. 19, 24, infra ; and see, with regard to witnesses, sect. 7, supra. See also, as to non-payment of costs, &o. infra, sect. 27, and 12 & 13 Vic. c. 45, s. 5. With regard to fees, &o., see 30 & 31 Vio. c. 35, s. 5, and 32 & 33 Vio. c. 89, s. 9. By 30 & 31 Vic. c. 35, s. 9, where any prisoner shall be con- victed, either summarily or otherwise, of larceny or other offence which includes the steaUmg of any property, and it shall appear to the court by the evidence that the prisoner has sold the stolen, property to any person, and that such person has no knowledge that the same was stolen, and that any monies have been taken from the prisoner on his appre- hension, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such monies a sum not exceeding the amount of the proceeds of the said sale be de- livered to the said purchaser. XIX. And be it enacted, that where a conTic- tion adjudges a pecuniary penalty {n) or compen- sation to be paid, or where an order requires the payment of a sum of money, and by the statute authorizing such conviction or order such penalty, compensation, or sum of money is to be levied upon the goods and chattels of the defendant by distress and sale thereof, and also in cases where by the statute in that behalf no mode of raising or levying such penalty, compensation, or sum of money, or of enforciag the payment of the same, is stated or provided, it shall be lawful for the justice or justices making such conviction or order. Digitized by Microsoft® Sect. 43. 2 & 3 Vio. c. 47, s. 62. U&12Vic. c. 43, SB. 7, 19, 24, 27. 12 & 13 Vic. c. 45, s. 5. 30 & 31 Vio. c. 35, s. 5. 32&33Vic. c. 89, s. 9. 30 & 31 Vic. c. 35, B. 9. Power to justice to issue war- rant of dis- tress. 64 SUMMARY PROCESS BEFORE JUSTICES. How war- rant to be backed. Where the issuing a warrant would be ruinous to defendant, or where there are no goods, or for any justice of the peace for the same coimty, riding, division, liberty, city, borough, or place, to issue his or their warrant of distress (N. 1, 2) for the purpose of levying the same, which said warrant of distress shall be in writiag under the hand and seal of the justice making the same ; and if after delivery of such warrant of distress to the constable or constables to whom the same shall have been directed to be executed, sufficient distress shall not be found within the limits of the jurisdiction of the justice granting such warrant, then, upon proof alone being made on oath of the handwriting of the justice granting such warrant before any justice of any other county or place, such justice of such other county or place shall thereupon mate an indorsement (N. 3) on such warrant signed with his hand, authorizing the execution of such warrant within the limits of his jurisdiction, by virtue of which said warrant and indorsement the penalty or sum aforesaid, and costs, or so much thereof as may not have been before levied or paid, shall and may be levied by the person bringing such warrant, or by the person or persons to whom such warrant was originally directed, or by any constable or other peace officer of such last-mentioned county or place, by distress and sale of the goods and chattels of the defendant in such other eoimty or place : provided always, tlmt whenever it shall appear to any justice of the peace to whom appli- cation shall be made for any such warrant of distress as aforesaid, that the issuing thereof would be ruinous to the defendant and his family, or Digitized by Microsoft® COMMITMENT. 65 wherever it shall appear to such justice, hy the juaticemay confession of the defendant or otherwise, that he S^' hath no goods or chattels whereon to levy such P™""- distress, then, and ia every such case, it shall he lawful for such justice, if he shall deem it fit, instead of issuiug such warrant of distress, to com- mit such defendant to the house of correction, or if there be no house of correction within his juris- diction, then to the common gaol, there to be imprisoned, with or without hard labour, for such time (o) and in such manner as by law such defendant might be so committed iu case such warrant of distress had issued, and no goods or chattels could be found whereon to levy such penalty or sum and costs aforesaid {p). in) In iJ. V. Wj/att, 2 Ld. Eaym. 1195-6 (4 Anne), it was laid down that if a statute give a pecnniary penalty for an offence, to be levied by distress, and for want of goods imposes a corporal punishment, and a party against whom there is a single conviction only has goods sufficient to satisfy a part of the sum only, his goods ought not to be seized, but the corporal punishment should be inflicted on Iiitti ; but that when there are two convictions against a man, and he has goods sufficient to satisfy one, and that only, they ought to be levied under one conviction, and the corporal punishment should be inflicted upon ^iiTin tmder the other. A distress warrant ought not to _ vary in any material particular from the provisions of the statute ' under which it issues. S. v. Williams, 19 L. J., M. C. 126. (o) The scale of imprisonment in case of non-payment is now regulated by the 28 & 29 Vic. c. 127, which says — ^Wbere upon summary conviction any offender may be adjudged to pay a penalty not exceeding bl., such offender, in case of non- payment thereof, may, without any warrant of distress, be committed to prison for any term not exceeding the period specified in the following scale, unless the penalty shall be sooner paid: — The imprisonment For any penalty not to exceed Not exceeding 10« Seven days. Exceeding 10s. and not exceeding II Fdurteendays. Exceeding 11. but not exceeding %l One month. Exceeding 21. but not exceeding 61. Two months. G: Digitized by Microsoft® F 28&29Vic. 0. 127. 66 SUMMARY PROCESS BEFORE JUSTICES. (p) It ia not necessary that the commitment should he dated ; at least -where there is a note or memorandum giving the time when the prisoner -was taken into custody. " It is a matter of evidence at what time he is taken into custody, and the period of imprisonment must be calculated from that time." Per Denman, C. J., He Bowdkr, 17 L. J., Q. B. 245, overruling on this point Se Fletcher, 13 L. J., M. C. 16 ; and see Daniell V. Fhillips, 1 Cr. M. & E. 662 ; 5 Tyr. 293. SembU, that a distress -warrant on refusal to pay a penalty issued the day after it is dated, and -within seven days (reckoning one day inclusive), is vahd. Newman v. Zd. Sardwick, 1 Hi. J., M. 0. 101. As to -whether the real time -when a -warrant is issued may be proved by e-vidence aliimde, of. Steele v. Mart, 4 B. & 0. 272 ; S. V. Ficton, 2 East, 195. Where a defendant, sentenced to imprisonment and to pay costs, has not sufficient goods for distress in default, and is therefore imprisoned for a further term, such term, commences to run from the termination of the 11 & 12 Vic. first imprisonment: o. 24, infra. Where a prisoner has been c. 43, s. 24. lodged in gaol under a bad warrant of commitment, even in the nature of a conviction (as where the commitment is under 6 Geo. 4, the Vagrant Act, 5 Geo. 4, c. 83, s. 4), a good warrant of c. 83, s. 4.' commitment subsequently delivered to the gaoler, but before a rule for a habeas corpus has been obtained, is a good answer to that rule. Fx parte Cross, 26 L. J. , M. C. 201 ; ij. v. Richards, 5 Q. B. 926 ; S. v. Smith, 27, L. J., Ex. 340 ; Cox, M. C. 90. And where this is shown in the return to the habeas corpus, the prisoner -will be retained in custody. iJ. v. Richards, supra. In general a rule -wxU be granted calling on a committing magistrate to show cause why a -writ of habeas corpus should not issue to bring up a prisoner, in order that the' validity of the warrant of commitment may be discovered on sho-wing cause. Fx parte Cross, supra. The provisions of the Habeas 31 Car. 2, Corpus Act, 31 Car. 2, c. 2, do not apply to a person under- c. 2. going imprisonment, &c. pursuant to judgment upon an indict- ment, except he has been pardoned or his sentence remitted. Cobbett V. Field, Q. B. Div. 11 January, 1877 ; Castro v. Murray, L. B., 10 Ex. 218. Whether defects in the first warrant would be cured by the second, if the return did not show that the latter was substi- tuted by the same magistrate who issued the first, and as an amendment of it, jgumre ? F.y. Smith, supra. Where a prisoner is brought up xmder a -writ of habeas corpus, and the commitment is insufficient, and the con-viction has not been brought before the court by certiorari, the court is not justified in looking at the conviction for the purpose of amend- ing the commitment by it, nor in detaining the prisoner ia custody until the con-viction is brought up by certiorari. Ex parte Tinson, 39 L. J., M. C. 129. Justice, after issu- ing war- XX. And be it enacted, that in all cases where a justice of the peace shall issue any such warrant Digitized by Microsoft® DISTEESS — COMMITMENT. 67 of distress it shall be lawful for Vn'm to sufEer the rant, may defendant to go at large, or verhaUy or by a writ- LnlanUo ten warrant in that behalf, to order the defen- f°orde?^' dant to be kept and detained in safe custody until i"™ ^^ J. -I m 1 1 , custody, return snail be made to such warrant of distress, unta re- unless such defendant shall give sufficient security, ^e, un- by recognizance or otherwise, to the satisfaction of ^ve^gecu- such justice, for his appearance before him at the ^*y ^y. ,. ~^ n 1 reoogm- time and place appointed for the return of such zance; tnt warrant of distress, or before such other justice or re-appear° justices for the same county, riding, division, mly^^?- liberty, city, borough, or place as may then be mittte there: Provided always, that in all cases where a zance to I 1. J , n n . •IT • theclerkof aeienaant shall give security by recognizance as the peace. aforesaid, and shall not afterwards appear at the time and place in such recognizance mentioned, then the said justice who shall have taken the said recognizance, or any justice or justices who may then be there present, upon certifying (F.) on the back of the recognizance the non-appearance of the defendant, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which the ofEence shall be laid to have been com- mitted, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient _p»"m^/a«e evidence of such non- appearance of the said defendant. XXI. And be it enacted, that if at the time and ind^uit place appointed for the return of any such warrant ciency of of distress, the constable who shaU have had the j^gtic? execution of the same shaU return (N. 4) that he ^l^^^^. .,F J Digitizeaby Microsoft® bo SUMMARY PROCESS BEFORE JUSTICES. dantto ooiild find HO goods or chattels or no sufficient v^on. goQ^g Qj. chattels (r) whereon he could levy the sum or sums therein mentioned, together with the costs of or occasioned by the levying of the same, it shall be lawful for the justice of the peace before whom the same shall be returned to issue his war- rant of commitment (N. 6) .under his hand and seal, directed to the same or any other constable, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such constable to convey such de- fendant to the house of correction, or if there be no house of correction then to the common gaol of the county, riding, division, liberty, city, borough, or place for which such justice shall then be act- ing, and there to deliver him to the keeper thereof, and requiring such keeper to receive the defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep bim to hard labour, in such manner and for such time as shall have been directed and appointed by the statute on which the conviction or order mentioned in such warrant of distress was founded, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and also the costs and charges of the commitment and conveying of the defendant to prison, if such justice shall think fit so to order (the amount thereof being ascer- tained and stated in such commitment), shall be sooner paid (s). (»•) Where the goods foimd are insufficient no levy ought to be made. S. v. Wyatt, 2 Lord Kaym. 1195, 1196 ; supra, s. 19, n. (»). Except where it is specially directed, a husband's goods oannot be seized for tbe crime of his wife (11 Co. 61 b) ; Digitized by Microsoft® DISTKESS — COMMITMENT. 69 though it is laid down in 1 Hawk. P. C. 1, 13, that "if a wife incur the forfeiture of a penal statute, the husband may be • made a party to an 'action' or 'information' for the same." See Paley, Sum. Con., 4th ed., pp. 260-261, n. (t) ; and cf. JJ. V. Johnson, 5 Q. B. 335. W By the 3 Jac. 1, c. 10, s. 1, it is provided that if the 3 Jao. 1, offender is able to pay the expenses of his conveyance to prison c. 10, s. 1. and refuse to do so, the committing magistrate may by warrant command the constable either of the place from where the offender is committed, or of the place where he lives or has goods within the county or liberty, to distrain and sell such of his goods as may be necessary, and to repay him the overplus (if any) after such goods have been appraised by four honest inhabitants of the parish wherein such goods are. And by 27 Geo. 2, c. 3, s.' 1, where the party has no sufficient goods 27 Geo. 2, or money, the magistrate may, on apphcation of the constable, o. 3, s. 1. and after ascertaining what amount of money wUl be needed, make an order for such sum on the treasurer of the county, &c., or, if in Middlesex, on the overseers of the parish where the offender was apprehended. These statutes are now seldom put in operation, and in £. v. .Bass, 2 C. & K. 822, the court decided that the practice of taking away a prisoner's money by the constable conveying him to prison to pay the expenses of his conveyance and maintenance there was altogether improper, and the court ordered the money to be restored to the prisoner. Money found on a prisoner may be restored to biTn before trial 10 Geo. 4, by order of the court if the depositions show that it is not c. 44. material to the charge against him. £. v. Burnett, 3 C. & P. 2 & 3 Tic 600. _ Under 10 Geo. 4, c. 44 ; 2 & 3 Vic. c. 47, and 11 & c. 47. 12 Vic. cc. 42, 43, if a prisoner is committed to a county gaol n & l2Vic- for an offence committed in the county within the metropoli- c. 42. tan police district, the committal being by a county magis- trate within such county and district, and the warrant is delivered to a metropolitan police constable, a county magis- trate may order repayment by the county treasurer to the metropolitan police constable of the expenses incurred by him in conveying the prisoner to the gaol, the prisoner himself having no funds available for that purpose ; and the county treasurer is liable to an action if he refuses to pay under such order. So also where the magistrate issuing the warrant or making the order on the treasurer is a polioe magistrate sitting in a metropolitan police court, and even if there is no express direction on the warrant. And so where the committal is for refusal ,to enter into recognizances to appear at sessions and to keep the peace meanwhile. So where the committal is for further examination, and the prisoner is afterwards summarily convicted. But where a prisoner is remanded for examination and the keeper of the gaol deHvers such prisoner to a constable to he conveyed before the magistrate, the constable is not entitled to be remunerated from the county rate for the expense of such conveyance, though he would be so entitled if he con- veyed him before the magistrate by order of the magistrate. Digitized by Microsoft® 70 STJMMAKY PROCESS BEFORE JUSTICES. .Lmenc-k v. Mener, 14 Q. B. 759; 22 L. J., M. C. 81 ; F. & H. Dig. 7361, 7362. If the warrant te directed to the constable of a parucmar parish, it cannot be deputed for execution, to the county poUoe. E. V. SaMers, 1 L. E., 0. C. 75. In all XXII. And whereas by some acts of parliament penalties, justices of the peace are authorized to issue war- tira™or rants of distress to levy penalties or other sums where'the recovered before them by distress and sale of the statute offender's goods, but no further remedy is thereby no remedy provided in caso no sufficient distress be found S distress, whereon to levy such penalties ; be it therefore c^Sr^'^ enacted, that in aU such cases, and in all cases of defendant convictions or Orders where the statute on which the same are respectively founded provides no remedy iu case it shall be returned to a warrant of distress thereon that no sufficient goods of the party agaiast whom such warrant shall have been issued can be found, it shall nevertheless be lawful for the justice to whom such return is made, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, if he or they shall thialc fit, by his warrant as afore- said, to commit the defendant to the house of cor- rection or common gaol as aforesaid for any term not exceeding three calendar months, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and of the commit- ment and eonveyiag of the defendant to prison, (the amount thereof being ascertained and stated in such commitment,) shall be sooner paid if). (<) As this section might appear to contemplate only the case of statutes enabling justices of the peace to le'vy penalties, and might be held to enlarge the powers of justices in such Digitized by Microsoft® PENALTIES — COMMITMENT. n oases only, the legislature has, on the representations of Mr. Oke, amplified its provisions by the following section (5th) of the 21 & 22 Vio. o. 73:— "Section twenty-two of the act of the 21&22Vio session holden in the eleventh and twelfth years of her Majesty, o. 73, s. 6. ' chapter forty-three, shaU extend and be deemed to have ex- tended to aU cases in which it is returned to a warrant of distress issued under the authority of such act for levying any peualty,_ compensation or sum of money adjudged or ordered to be paid by any conviction or order, that no sufficient goods of the party against whom such warrant was issued can be found, where the statute on which the conviction or order is founded provides no mode of raising or levying such penalty, compensation or sum of money, or of enforcing payment of the same, as well as to cases where the statute on which the con- viction or order is founded, authorizes the issuing thereon of a warrant of distress." As has been already stated (11 & 12 Vic. c. 43, s. 16, mpra), ll&12Vic. the justices have the power to adjourn the case, if they see fit, o. 43, s. 16. before conviction ; and besides they need not in strictness, even after the conviction has taken place, adjudge that if the penalty is not forthwith paid the offender shall be committed, &c., but may, after affirmance of the conviction, upon appeal oonmiit the offender for refusiag to pay the penalty. JJ. v. Selps, 3 M. & S. 331. The other course is, however, that generally adopted ; and it has been held that on a complaint imder 3 & 4 3 & 4 Tic. Vic. c. 110, s. 16, for not paying a promissory note given to a ''• H") loan society, the justices can only make an order for the pay- ^' ^^' m.ent of the sum found to be due swnpliciter, and have no power to postpone the time of payment. Farker v. Boughey, 31 L. J., Q. B. 301 ; Cox, M. C. 173. Imprisonment for debt is still enforced in the case of moneys simunarily recoverable before a magistrate, because the 4th sec- tion of the Debtors' Act (32 & 33 Vic. c. 62) excepts such sums 32 & 33 Vio. from its operation. See also sect. 5. It is enacted under the c. 62, s. 4, 5. Employers and Workmen's Act, 38 & 39 Vic. c. 90, s. 9, that 38&39Vic. " any sum payable by any person under the order of a court of c. 90, s. 9. summary jurisdiction in pursuance of this act shall be deemed to be a debt due from bim in pursuance of a judgment of a compe- tent court within the meaning of the fifth section of the Debtors' Act, 1869, and may be enforced aoeordingly ; and as regards any such debt, a court of summary jurisdiction shall be deemed to be a court within the meaning of the said section ; " that -is to say, that, subject to certain conditions laid down in the section, the defendant may be committed for six weeks or until payment of the sum due. See 32 & 33 Vic. c. 62, ». 5 ; Washer v. Elliott, 1 C. P. Div. 169; 45 L. J. 144; Evans v. Wills, 1 G. P. Div. 229; 45 L. J. 420; Wewell v. Van Fraagh, L. E., 9 0. P. 96 ; 43 L. J., 0. P. 94 ; post, tit. "Tutelary Jurisdic- tion." XXIII. And be it enacted, that in all cases Power to wliere the statute by virtue of which a conviction order com- mitment Digitized by Microsoft® 72 SUMMARY PROCESS BEFORE JUSTICES. in the first for a penalty or compensation, or an order for tte to nmf- payment of money, is made, makes no provision T'^^tv^ for such penalty or compensation or sum being or of a sum levied by distress, but directs that if the same be be paid. not paid forthwith, or within a certain time therein mentioned, or to be mentioned in such conviction or order, the defendant shall be imprisoned, or imprisoned and kept to hard labour, for a certain time, unless such penalty, compensation, or sum shall be sooner paid, in every such case such penalty, compensation or sum shall not be levied by dis- tress ; but if the defendant do not pay the same, together with costs, if awarded, forthwith, or at the time specified in such conviction or order for the payment of the same, it shall be lawful for the justice or justices making such conviction or order, or for any other justice of the peace for the same county, riding, division, liberty, city, borough or place, to issue his or their warrant (m) of commit- ment (0. 1, 2,) under his or their hand and seal, or hands and seals, requiring the constable or con- stables to whom the same shall be directed to take and convey such defendant to the house of cor- rection or common gaol for the county, riding, division, liberty, city, borough or place aforesaid, as the case may be, and there to deliver bim to the keeper thereof, and requiring such keeper to receive such defendant into such house of correc- tion or gaol, and there to imprison him, or to im- prison him and keep him to hard labour, as the case may be, for such time as the statute on which such conviction or order is founded as aforesaid shall direct, unless the sum or sums adjudged to Digitized by Microsoft® COMMITMENT IN FIRST INSTANCE WARRANT. 73 be paid, and also the costs and charges of taking and conveying the defendant to prison, if such justice or justices shall think fit so to order, shall be sooner paid(»). (m) See also sect. 19, mpra, notes («), (o), {p), pp. 65, 66.- As to whetlier the date of a warrant may be proved aliunde, of. Steele v. Mart, 4 B. & C. 272; R. v. Ficton, 2 East, 195. A -warrant of conunitment till finding of sureties ■was teld bad for omitting to state the time of imprisonment for default. Frickett V. Greatrex, 8 Q. B. 1021; 15 L. J., M. 0. 145. One important consequence of informality in a warrant is, that if a person be illegally arrested it is very doubtful whether an iof ormation will lie for rescuing Mm, or even for assaulting the constable who has him in charge. eaZ/Mrf^v.Zaaiw, 9Cox,C.C.127,Q.B. ; Cox,M:.C.45; 5L.T., N. S. 835. _ In Ft. v. Saunders, 36 L. J., M. C. 87, it was held that a justioes' warrant of commitment in execution upon a ll&12Vic. conviction for a penalty in the first instance under the II & 12 o. 43, s. 23. Vic. c. 43, s. 23, in the form, 0. 1, given in the Schedule to that act, directed "To the constable of Gr.," a parish in the county of L., must be read as directed to the parish constable of Gr., there being such an ofBcer who must execute it, and its execution by a county policeman is illegal ; therefore a con- viction for wounding a county policeman in the execution of the above warrant, with intent to resist the prisoner's lawful apprehension thereunder, was quashed. But cf . Mackally's case, Coke'sEep., pt. 9, 65b, Thomas andR:aser's ed. (1826), vol. 5, p. 117, where it was held that if a minister of justice, sheriff, magistrate, constable or watchman is Mlled in the execution of process it is murder, although such process is apparently erroneous. A warrant of commitment, if it follows the form given in the Schedule (P) to 11 & 12 Vic. c. 43, need not allege that the justices were sitting where the petty sessions were usually held. Ex parte Allison, 24 L. J., Q. B. 360; M. 0. 73. And this though the conunitment was made under a subsequent statute giving jurisdiction to justices sitting at that place. Ibid. ! ■ {v) Where a party had been coramitted under a statute (11 Greo. 4, c. 34, repealed) which gave no form of conviction, and indeed said nothing about the magistrates convicting, but only said they might commit, and the warrant of commitment only stated — (1) the fact of the complaint; (2) the appearance; (3) the fact that witnesses had been examined ; (4) that the complaint was adjudged to be true ; (5) that the prisoner was convicted ; and (6) that the justioes directed his committal ; the document was held to be both a commitment and a conviction, and as a conviction to be bad for omitting to set out the evidence. Re Hammond, 15 L. J., M. C. 136. Digitized by Microsoft® 74 SUMMARY PROCESS BEFORE JUSTICES. Power to justioee to order com- mitment ■where the conTiction is not for a penalty nor the order for payment of money, and the punish- ment is by imprison- ment, &c. Costs may be levied by distress, and in default defendant maybe committed for a further term. XXrV. And be it enacted, that where a con- viction does not order the payment of any penalty, hut that the defendant he imprisoned, or impri- soned and kept to hard labour, for his offence, or where an order is not for the payment of money, but for the doing of some other actj and directs that in case of the defendant's neglect or refusal to do such act he shall be imprisoned, or impri- soned and kept to hard labour, and the defendant neglects or refuses to do such act, in every such case it shall be lawful for such justice or justices making such conviction or order, or for some other justice of the peace for the same county, riding, division, Liberty, city, borough or place, to issue his or their warrant of commitment (P. 1, 2) under his or their hand and seal or hands and seals, and requiring the constable or constables to whom the same shall be directed, to take and con- vey such defendant to the house of correction or common gaol for the same county, riding, division, liberty, city, borough or place, as the case may be, and there to deliver him to the keeper thereof, and requiring such keeper to receive such defendant into such house of correction or gaol, and there to imprison him, or to imprison bi-m and keep him to hard labour, as the case may be, for such time as the statute on which such conviction or order is founded as aforesaid shall direct; and in all such cases, where by such conviction or order any sum for costs shall be adjudged to be paid by the defendant to the prosecutor or complainant, such sum may, if the justice or justices shall think fit, be levied by warrant of distress (P. 3, 4) in manner Digitized by Microsoft® CUMULATIVE SENTENCE. 75 aforesaid, and in default of distress the defen- dant may, if sucli justice or justices shall think fit, be committed (P. 5) to the same house of correc- tion or common gaol in manner aforesaid, there to be imprisoned for any time not exceediag one calendar month, to commence at the termination of the imprisonment he shall then be undergoing, unless such sum for costs, and all costs and charges of the said distress, and also the costs and charges of the commitment and conveying of the defen- dant to prison, if such justice or justices shall thint fit so to order, shall be sooner paid (w). l^is^^^''"' (w) Cf. supra, sects. 18, 19, 21; 3 Jao. 1, u. 10, s. 1, and 27 Sects. 18, G-eo. 2, c. 3 ; ef. s. 21, n. (s), supra. 19, 21. Justices may be compeUed by mandamus to issue a distress 3 jac. 1, ■warrant to levy a rate, because it is necessary that the rate 0. 10, s. 1. should be collected (per Denman, C. J.), Hx parte Thomas, 16 27 Geo. 2 L. J. 58 ; Ibut as a general rule a mandamus wiXl not be granted g. 3. for the purpose of compelling magistrates to enforce a con- viction either by commitment or distress. Ibid. Where justices having convicted a party of illegally destroying sahnon refused to take any steps to enforce the conviction, under an idea that they would thereby render themselves liable to a penalty under the Habeas Corpus Act, the court refused a mandamus. Ibid., p. 57. In S. V. Bants Justices, however, 1 B. & Ad. 654, a mandamus was granted to compel the levying by distress of costs on appeal; a statute having provided that such costs should if necessary be so levied. See also 11 & 12 Vic. c. 44, 11 & 12 Vic. s. 5, post, Appendix II. c. 44, s. 5. XXV. And be it enacted, that where a justice imprison- or justices of the peace shall, upon any such iufor- subsequent mation or complaint as aforesaid, adjudge the °o^enoe defendant to be imprisoned, and such defendant ^lg^^^^^l^ shall then be in prison undergoing imprisonment for pre- upon a conviction for any other offence, the war- offence, rant of commitment for such subsequent offence shall in every such case be forthwith delivered to the gaoler to whom the same shall be directed; Digitized by Microsoft® 76 SUMMAKY PROCESS BEFORE JUSTICES. 7 & 8 Geo. 4, c. 28, B. 10. 5 Geo. 4, c. 83, s. 4. and it shall be lawful for the justice or justices issuing the same, if he or they shall think fit, to award and order thereia and thereby that the imprisonment for such subsequent offence shall commence at the expiration of the imprisonment to which such defendant shall have been previously adjudged or sentenced (a;). [x) Courts of record, imder 7 & 8 Geo. 4, c. 28, s. 10 (in eases of felony) are enabled to award imprisonment for a subsequent offence, when tlie convict is already under Bentence of imprison- ment at the time that sentence is passed. A similar power is, by 11 & 12 Vic. c. 43, s. 25, declared to belong to courts of sum- mary jurisdiction. And this applies to cases where a defendant is at one and the same time sentenced, for several offences, — e.g. a person was convicted under four separate informations, under sect. 4 of the 5 Geo. 4, c. 83 (Vagrant Act), and was sentenced upon three of the convictions to be imprisoned with hard labour for three calendar months, and upon the fourth conviction to be also imprisoned with hard labour for three calendar months, "to commence at the expiration of the first three calendar months' imprisomuent, to which he has this day been adjudged by us the said justices;" — Beld, that the justices were justified in imposing such second sentence, and that the conviction was good. Reg. v. Cutbush, Ex parte IPaine, 10 Cox, C. C. 489 (Q. B.) ; 36 L. J. 223 (ft. B.); 16 L. T. Eep., N. S. 287; Cox, M. C. 358; and cf. Wilkes' case, 4 Burr. 2577; 4 Bro. P. C. 367. Separate warrants of commitment should be made out in each case and delivered forthwith to the gaoler. If infor- mation be dismissed costs may be recov- ered by distress upon pro- secutor, &c. who in default maybe com- mitted. XXVI. And be it enacted, that where any information or complaint shall be dismissed with costs as aforesaid, the sum which shall be awarded for costs iu the order for dismissal may be levied by distress (Q,. 1) on the goods and chattels of the prosecutor or complainant in manner aforesaid; and in default of distress or payment such prose- cutor or complaiaant may be committed (Q. 2) to the house of correction or common gaol iu manner aforesaid, for any time not exceeding one calendar month, unless such sum, and all costs and charges Digitized by Microsoft® COSTS ON APPEAL. 77 of the distress, and of the commitment and con- veying of such prosecutor or complainant to prison (the amount thereof heing ascertained and stated in such commitment), shall be sooner paid [y). {y) See secta. 18, 19, supra. The late Mr. Oke has recorded his opinion that the Small Penalties Act (28 & 29 Vio. c. 127) 28 & 29 Vic. does not apply to costs awarded against a complainant under o. 127. sects. 18 and 26 of 11 & 12 Vic. c. 43, his reason being that in the case supposed there is no stimmaiy "conviction" and no "ofeender." Oke, Mag. Syn. vol. i. pp. 173, n. (56), 186 (11th ed.). XXVU. And be it enacted, that after an ap- After ap- peal against any such conviction or order as afore- gainst said shall be decided, if the same shall be decided o°"™^°" in favour of the respondents, the justice or justices justicemay who made such conviction or order, or any other rants of • 1 • (1 .1 p rt I . T distress justice 01 the peace ot the same county, nding, forexecu- division, liberty, city, borough or place, may issue ^^g°* *^® such warrant of distress or commitment as afore- said for execution of the same, as if no such appeal had been brought (a) ; and if upon any Costs of such appeal, the court of quarter sessions shall ^ow re- order either party to pay costs, such order shall covered. dir.ect such costs to be paid to the clerk of the peace of such court, to be by him paid over to the party entitled to the same, and shall state within what time such costs shall be paid (6), and if the same shall not be paid within the time so limited, and the party ordered to pay the same shall not be bound by any recognizance conditioned to pay such costs, such clerk of the peace or his deputy, upon application of the party entitled to such costs, or of any person on his behalf, and on pay- ment of a fee of one shilliag, shall grant to the party so applying a certificate (E..) that such costs Digitized by Microsoft® 78 SUMMARY PROCESS BEFORE JUSTICES. have not been paid (c), and upon production of such certificate to any justice or justices of tlie peace for the same county, riding, division, liberty, city, borough or place, it shall be lawful for him or them to enforce the payment of such costs by warrant of distress (S. 1) in manner aforesaid, and in default of distress he or they may commit (S. 2) the party against whom such warrant shall have issued ia manner hereiabefore mentioned for any time not exceeding three calendar months, unless the amount of such costs and all costs and charges of the distress, and also the costs of the commitment and conveying of the said party to prison, if such justice or justices shall think fit so to order (the amount thereof being ascertained and stated in such commitment), shall be sooner paid (d). (a) The enactment that after an appeal has been decided in favour of the respondent the justice, &c. may issue a warrant of distress or commitment, is not to be construed as implying that execution is suspended, or thatthe defendant (if committed) is to be discharged from custody during the appeal, but only as applicable to a case ivhere the proceeding is suspended pending the appeal. Jlx parte Willmott, 30 L. J., M. 0. 161. On the same principle, the jurisdiction given to a single justice by 7 & 8 Vic. 0. 101, s. 3 (repealed), at any time after the expiration of one month from the making of an order for the maintenance of a bastard child, to grant a warrant against the putative father, for the purpose of enforcing payment under the order, was held not to be suspended by an appeal to quarter sessions against the order and the confirmation of the order by the sessions, subject to a special case. Kendall v. Wilkinson, 4 E. & £. 680 ; 24 L. J., M. C. 89. (J) It is advisable that in all proceedings under tliia act with reference to costs, the directions of this section should be as literally observed as may be practicable. In R. v. Hellier, on an appeal against a conviction under the Alehouse Licensing Act, (9 Geo. 4, c. 61), the sessions aflirmed the conviction, and ordered that the appellant should forthwith pay to the respondent jus- tices a certain sum for costs, and in case of default, should be committed to the house of correction until such sum should be paid : — Seld (though conformable to the partly repealed section, ll&12Tio. 9 G-eo. 4, c. 61, s. 29), a bad order, since 11 & 12 Vic. c. 43, c. 43, s. 27. which, by sect. 27, enacts, that if on appeal against "sudi Digitized by Microsoft® _ COSTS ON APPEAL. 79 con-notion or. order" aa is ttere mentioned, the sessions stall a-ward costs, their order shall direct thrf costs to be paid to the clerk of the peace, to he .by him paid over to the party entitled, and shall state within what time payment shall be, and that on non-payment within the time and in default of distress the party may be committed for any time not exceeding three months, xmless the costs be sooner paid; for the words "such order" apply generally to all orders of magistrates out of sessions and appeals against such orders (unless in cases excepted by the act (repealed by 38 & 39 Vic. c. 66) ), and sect. 36 repeals aU statutes inconsistent with it. 17 Q. B. 229; 21 L. J., M. 0. 3; F. & H. Dig. 7754. But a mistake in ordering costs to be paid directly to the party to the appeal, instead of to the clerk of the peace under this section, is not a defect of iurisdietion, but m.erely erroneous procedure. S. V. JSinnet/, 1 E. & B. 810; 23 L. J., M. C. 127; S. v. Mtj Justices, 5 E. & B. 489; 25 L. J., M. C. 1. And neither H & 12 Vic. c. 43, s. 27, nor 12 & 13 Vic. c. 45, s. 5, infra, affect the 17 Geo. 2, o. 38, s. 4, empowering the quarter sessions, upon an appeal against a poor rate, to order costs to be paid to the party in whose favour the appeal is decided. B. v. SmtUy, 3 E. & B. 172; 23 L. J., M. 0. 106. By 12 & 13 Vic. c. 45, s. 5, upon any appeal to any court of general or quarter sessions of the peace, the court before whom the same shall be brought may, if it think fit, order and direct the party or parties against whom the same shall be decided to pay to the other party or parties such costs and charges as may to such court appear just and reasonable, such costs to be recoverable in the manner provided for the recovery of costs upon an appeal against an order or conviction by stat. 11 & 12 Vic. c. 43. It has been held; under this act, that where a court of quarter sessions dismisses an appeal against allowance of a surveyor's account for want of jurisdiction under 5 & 6 Will. 4, 0. 50, it can order the appellant to pay costs, though it would have had no jurisdiction to do so under 5 & 6 Will. 4,' c. 60. S. V. Tadwick, 8 E. & B. 704; Cox, M. C. 144; 27 L. J., M. 0. 113. Where, on appeal against a poor rate, the quarter sessions, by their order, awarded and ordered 211. 15s. 2d. to be paid to the respondents for their costs in and about the appeal, and further directed the appellant to pay the said sum to the clerk of the peace for the use of the parties entitled to the same, instead of directly to such parties ; it was held that this was a proper form of order as to the costs. Gai/ v. Matthews, 33 L. J., M. C. 14 ; and cf . imfra, M. v. Simtley, S. v. ^ly Justices, supra. An adjournment of quarter sessions to a subsequent sessions is a continuation of the' original sessions. Therefore, where at the general quarter sessions holden in October an appeal, under 32 & 33 Vic. 0. 27, and 9 Geo. 4, c. 61, s. 27 (partly repealed), was dismissed with costs, but the amount of such costs was not ascertained by the clerk of the peace till the sessions holden by adjournment in November, an order of sessions for the payment by the appellant of such ascertained amount of costs was held good. Sawnsley v. Sutehinson, 40 L. J., M. 0. 97. 38&39Vic. c. 60. ll&12Tio. 0. 43, s. 36. ll&12Vic. c. 43, s. 27. 17 Geo. 2, c. 38, s. 4. 12 & 13 Vic. c. 45, s. 5. 5&6Will. 4, c. 50. 32&33Vio. C.27. Digitized by Microsoft® 80 SUMMARY PROCESS BEFORE JUSTICES. 17 Geo. 2, c. 38, B. i. 4&5WiU. 4, 0. 76, 8.82. 12 & 13 Vic. c. 45, s. 18. 17 Geo. 2, 0. 38, s. 4. 12&13Vio. c. 45, s. 18. And where an appeal was entered at the Midsvrauner and respited until the Michaelmas sessions, and then further re- spited at the instance of the appellant until the Epiphany- sessions, four days preriously to which the respondents gave notice that they would not oppose the appeal, and it was accordingly allowed without opposition: — Seld, that the appel- lant was entitled to costs as upon an appeal which had been heard and determined within 17 Geo. 2, c. 38, a. 4. S. t. Causton, 4 D. & E. 445 ; F. & H. Dig. 6754. And see, imfra, It. V. Ely Justices. It appears, also, that a party may be made liable to costs without a specific order, if there is a general order of sessions to that effect ; and taxation of costs after sessions is valid if it taie place by the consent of the party ultimately made charge- able. Freeman v. Bead, 9 C. B., N. S. 301 ; 30 L. J., C. B. 240 ; Cox, M. C. 152. But where the recorder of a borough court confirms an order of removal with costs imder 4 & 5 Will. 4, 0. 76, B. 82, but without specifying the amount, a, taxation of such costs after the end of the sessions is irregular, though the amount be submitted to the recorder (after the termination of the sessions) and approved by him; and an order for payment of such taxed costs cannot be enforced. S. V. long, 1 Q. B. 740. And, semble, so where the payment of costs is ordered by a judge of assize after the expiry of his commission on indictanent for non-repair of a highway directed by justices. E. v. Clark, 5 Q. B. 887. By sect. 18 of 12 & 13 Vic. c. 45, iu all cases where any order shall be made by any court of general or quarter sessions of the peace, it shall be lawful for the Court of Queen's Bench, or for any judge of that court at chambers, either in term or vacation, upon the application of any person entitled to enforce such order, and upon the production of a copy ■ of such order under the hand of the clerk of the peace or .his deputy, and upon proof of refusal or neglect to obey such order, to order and direct such order of the court of general or quarter sessions to be removed into the said Court of Queen's Bench ; and thereupon such order shall b^ of the same force and effect, and may be enforced in the same manner, as a rule made by the said Court of Queen's Bench ; and all the reasonable costs and charges attendant upon such application and removal shall be recoverable ia like manner as if the same were part of such order. This section does not take away the jurisdiction given by 17 Geo. 2, c. 38, s. 4, to order costs on appeal from a poor-rate, but gives an additional remedy for enf oroiag such order. E. v. Bimtley, supra. It applies, however, only to orders properly so called, and not to judgments of the court of quarter sessions on indictments tried before them. E. v. Batcman, 8 E. & B. 584 ; Cox, M. C. 273 ; 27 L. J., M. C. 95. Where a judge's order or rule of the court is made imder 12 & 13 Vic. c. 45, s. 18, for the removal of an order of quarter sessions into the Bail Court, it is not necessary that any certiorari should issue to remove the order of sessions. Sawker v. Field, 20 L. J., M. C. Digitized by Microsoft® COSTS. 81 41. But this rule does not apply to an order of quarter sessions to abate a nuisance made after the trial of an indictment for such nuisance. iJ. v. Bateman, supra. In Gay t. Matthews, sttpra, it -was held that an order under 12 & 13 Vic. c. 45, might be good, though it followed the language of II & 12 Vio. c. 43, rather than that of the statute under which it was made. And see S. v. Bevonport Justices, J. P., Sept. 25, 1869. But a query has been raised whether an order for costs is valid where it orders the costs to be paid to the party, and not, as required by 11 & 12 Vio. c. 43, s. 27, to the clerk of the peace. B. v. Suntlet/, 3 E. & B. 172; 23 L. J., M. C. 106. In ij. T. Sly Justices, 5 E. & B. 489; 25 L. J., M. C. 1, on dismissal of an appeal against the refusal of a beer licence imder 9 Geo. 4, c. 61, now partly repealed, the quarter sessions ordered appellant to pay costs to the respondent forthwith. The Slim was left in blani, but filled up between that and the next {adjourned) sessions. Payment was demanded between the end of the adjourned sessions and beginning of the next sessions. It was held not necessary that the order should direct the costs to be paid to the clerk of the peace under 11 & 12 Vic. c. 43, s. 27. (c) Semile, that in eases in which jurisdiction to order costs on appeal is given only by 12 & 13 Vic. c. 45, s. 5, the order 12&13Vio. may be enforced under sect. 18, if the order be in other c. 45, ss. 5, respects vaM. S. v. Suntley, supra. 18. (d) Costs awarded by quarter sessions against one of the parties to an appeal, and which by this section and 12 & 13 Vio. c. 45, B. 5, may be enforced before a justice by warrant of distress, and, in default of distress, by warrant of commitment, are within the exceptions reserved in 32 & 33 Vic. u. 62, s. 4, 32&33Vio. subs. 2, as a "sum recoverable summarily before a justice." c. 62, a. 4. JJ. V. Fratt, L. E., 5 Q. B. 176; and see Gay v. Matthews, 32 L. J., M. C. 58, supra. Indeed, a, recognizance for costs of appeal, even in a civil action, is a crown debt, so as not to come within the Debtors Act, 1869 (32 & 33 Vic. c. 62), the crown not being expressly mentioned in that act. Ite A. S. Smith, Ex. D., Dec. 7, 1876; W. N. 51, 292 (16 Dec. 1876) ; and of. supra, SawTcer v. iieM. Under 12 & 13 Vic. u. 45, s. 5, the quarter sessions, upon 12 & 13 Vio. quashing a conviction, may order the informant to pay the 0. 45, B. 5. costs, notwithstanding he is not nominally a party to the ap- peal, the nominal parties being the convicting justices. iJ. v. Smith, 2 L. T., N. S. 437. And this although by law the notice of appeal has to be given to the justices, and though the real informant does not appear at it. -ffi. v. Hampshire Jus- tices, 1 B. & Ad. 659; iJ. v. Furdey, 34 L. J., M. C. 4. So where, as undertheMolestation Amendment Act, 1871 (34 & 35 Vic. c. 32), B. 3, subs. 5 (now repealed), the quarter sessions on appeal was empowered to make " such order as to costs to be paid by either party, as the court should think just," it was held that costs could not be given against justices, who were merely ncjminal parties. B. v. Goodall, 43 L. J., M. C. 119. G. Digitized by Microsoft® G 82 SUMMARY PROCESS BEFORE JUSTICES. 12&13Vio. c. 45, s. 5. 18 Geo. 3, 0. 19 (re- pealed). H&12Tic. 0. 43, s. 36. 20&2iyio. c. 43. 24&25Vic. 0.06,3.188, 0. 97, s. 66. 22 Vic. c. 32. On pay- ment of penalty, &c. dis- tress not to te levied on the party, if imprisoned for non- payment, shall he dis- charged. In this case it is to be observed that, by s. 3, subs. 2. a dis- tinction is made between the court of summary iurisdiction (which may be taken to mean the justices) and the " party" appealed against. The principle on which such cases rest is, however, most probably indicated per Curiam in the judgment of Z. V. Goodall, to the effect, that if the quarter sessions had power to give costs against justices, it would be clothed with the same authority as the Queen's Bench to punish magistrates for acts done in the exercise of their summary jurisdiction. In B. V. Beadle, 7 E. & B. 492 ; 26 L. J., M. C. Ill, it was held, that where on appeal against an acquittal, under the re- pealed act 2 & 3 Win. 4, c. 120, s. 27, the acquittal was con- firmed with costs, the quarter sessions had no jurisdiction to order costs to be paid to the respondent by the excise of&cer under 12 & 13 Vic. c. 45, s. 6, because the crown was not named in it. The 18 Geo. 3, c. 19, under which justices had a general authority to give costs, being now repealed by s. 36 of this statute, jiistices have no power of awarding costs, except it be given by the particular act proceeded under. See further with regard to costs on case stated under 20 & 21 Vic. 0. 43, post, Appendix 2, tit. "Appeal." , The 24 & 25 Vic. c. 96 (Larceny Act), s. 188, and the 24 & 25 Vic. u. 97 (MaUoious Injury to Property Act), ». 66, enable a justice, where any person shall be summarily convicted of a first offence against either of these acts, to discharge the offender upon his making such satisfaction to the party aggrieved for damages and costs, or either of them, as shall be ascertained by the justice ; and by the 22 Vic. c. 32, the crown may remit in whole, or in part, any sum of money which may be imposed as a penalty or forfeiture on a convicted offender, though such money may be in whole or in part payable to some party other than the crown, and to extend the royal mercy to any person who may be impiisoned for non-payment of any sum of money so imposed, although the same may be in whole or in part payable to some other party than the crown. See also next section. XXVIII. And be it enacted, that in aU cases where any person against whom a warrant of dis- tress shall issue as aforesaid shall pay or tender to the constable having the execution of the same the sum or sums in such warrant mentioned, together with the amount of the expenses of such distress up to the time of such payment or tender, such constable shall cease to execute the same, and in aU cases in which any person shall be imprisoned Digitized by Microsoft® PRESIDING JUSTICES. 83 as aforesaid for nonpayment of any penalty or other sum he may pay or cause to he paid to the keeper of the prison in which he shall be so im- prisoned the sum in the warrant of commitment mentioned, together wi& the amount of the costs, charges and expenses (if any) therein also men- tioned, and the said keeper shaU receive the same, and shall thereupon discharge such person, if he be in his custody for no other matter (e). (e) Before this section ■was passed, a constable directed ■by- warrant to deliver up a prisoner to the keeper of a house of correction, to be there kept for a certain time, unless he should sooner pay, &o., was held not authorized to accept a tender of the money. Atkinsy.KiHy,\\ A.&'E.m. If costs are due, they also must be tendered. Walsh v. Southwark, 6 Ex. 160; and see 22 Vic c. 32, supra, s. 27, u. 22 Vic. 0.32. XXIX. And be it enacted, that ia all cases of in oases of -,. , n • , • • 1 • summary summary proceedings before a justice or justices proceed- of the peace out of sessions upon any information j^^™^ or complaiat as aforesaid, it shall be lawful for ™^y ^™® ■*■ ' summons one justice to receive such iaformation or com- orwar- plaiat, and to grant a summons or warrant thereon, and after and to issue his summons or warrant to compel the or'order°'^ attendance of any witnesses, and to do all other ™^^^"of necessary acts and matters preliminary to the ^tress, hearing, even in cases where by the statute ia that behalf such information or complaint must be heard and determined by two or more justices; and after the case shall have been so heard and determined one justice may issue all warrants of distress or commitment thereon ; and it shall not be necessary that the justice who so acts before or after such hearing shall be the justice or one of the justices by whom the said case shall be heard Digitiz^ /4 Microsoft® 84 SUMMARY PROCESS BEFORE JUSTICES. and determined: provided always, that in all cases where by statute it is or shall be required that any such information or complaint shall be heard and determined by two or more justices, or that a conviction or order shall be made by two or more justices, such justices must be present and acting together during the whole of the hearing and determination of the case (/). (/) Subject to the concluding proviso of the above section, summary proceedings under the Prevention of Crimes Act 34&35Vic. (34 & 35 Vic. o. 112), are brought within its operation by the 0. 112, s. 17. i7th clause of the later statute, ■which enacts that any offence against that (the Prevention of Crimes) act may be prosecuted before a court of summary iurisdietion, as follows : — In England, in manner directed by the 11 & 12 ViC. o. 43, and that "courts of summary jurisdiction" shall in this (the Prevention of Crimes) act mean and include any justice or justices of the peace, sheriff or sheriEB substitute, metropolitan police magistrate, stipen- diary or other magistrate, or officer by whatever name called to whom jurisdiction is given by the acts in this (17th) section mentioned, or any acts therein referred to or to proceedings before whom the provisions of such acts acre or may be made applicable. Provided as follows: — The "court of summary jurisdiction," when hearing and determining an information, complaint, or other prooee£ng in respect of an offence against this act, shall be constituted in some one of the following manners; that is to say, in England, either of two or more justices of the peace in petty sessions sitting at a place ap- pointed for holding petty sessions, or of one of the magistrates hereinafter mentioned, sitting alone or with others at some court or other place appointed for the administration of justice ; that is to say, the lord mayor, a metropolitan police magistrate, a stipendiary magistrate, or some other officer or officers for the time being empowered by law to do alone or with others any act authorized to be done by more than one justice of the peace. Where, however, an act either antecedent or posterior to 11 & 12 Vic. 11 & 12 Vic. c. 43, neither contains any provision analogous 0. 43, B. 29. to sect. 29 of that statute, nor is brought by express declaration within the provisions of the said section, lifre tie Prevention of Crimes Act, it will be necessary to examine its provisions closely and to bear in mind the distinction between receiving informa- tions, issuing process, &c., and " determining," for in the case of S. V. Grijin, 9 Q. B. 165, it was held that the provisions in 3 Geo. 4, c. 23,_s. 2 (repealed), providing that in aU cases where two or more justices, deputy lieutenants or others, are au- thorized to hear and determine any complaint, one justice, Digitized by Microsoft® __ FEKS. 85 &0. shall be competent to receive the original information, did not repeal provisions of former statutes expressly requiring more than one justice, &o. to receive an information. Where an act of parliament in one section provided that aU penalties imposed by it should be recoverable by information before two justices, and in another section provided that where an in- formation was laid before one justice such justice should issue a summons for the appearance of the party before two justices, and the form of information given by the schedule to the act recited the appearance of the informant " before us two of her Majesty's justices;" it was held that an information exhibited before one justice was sufficient, and that two justices were thereupon bound to hear it. M. v. Sarwich Justices (Re Mussell) , 18 L. J., M. 0. 106. ' XXX. And be it enacted, tliat the fees to Eegnla- wliicli any clerk of the peace, clerk of the special aT^a^-*° sessions, or clerk of the petty sessions, or clerk to Sl^'s* any justice or justices out of sessions, shall he *ees. entitled shall he ascertaiaed, appointed, and regu- lated in manner following (that is to say) : the justices of the peace at their quarter sessions for the several counties, ridings, divisions of counties, and liberties throughout England and Wales, and the council or other governing body of every borough in England and Wales, shall, from time to time as they shall see fit, respectively make tables of the fees which in their opinion should be paid to the clerks of the peace, to the clerks of special and petty sessions, and to the clerks of the justices of the peace within their several jurisdictions, and which said tables respectively, beiag signed by the chairman of every such court of quarter sessions, or by the mayor or other head officer of any such bo- rough respectively, shall be laid before her Majesty's principal secretary of state; and it shall be lawful for such secretary of state, if he thinks fit, to alter such table or tables of fees, and to subscribe a Digitized by Microsoft® 86 SUMMARY PROCESS BEFORE JUSTICES. certificate or declaration that such fees are proper to be demanded and received by tlie several clerks of the peace, clerks of special sessions and petty sessions, and the clerks to the several justices of the peace throughout England and Wales (') ; and such secretary of state should cause copies of such table or set of tables of fees to be transmitted to the several clerks of the peace throughout England and Wales, to be by them distributed to the several clerks of special sessions and petty sessions and to the clerks to the Justices within their several dis- tricts respectively ; and if after such copy shall be received by such clerks or clerk he or they shall demand or receive any other or greater fee or gratuity for any business or act transacted or done by biTn as such clerk than such as is set down in such table or set of tables, he shall forfeit for every such demand or receipt the sum of twenty pounds, to be recovered by action of debt in any of the superior courts of law at Westminster, by any person who will sue for the same (') : provided always, that until such table or set of tables shall be framedand confirmed and distributed as afore- said, it shall be lawful for such clerk or clerks to demand and receive such fees as they are now by any rule or regulation of a court of quarter sessions or otherwise authorized to demand and receive {g). {g) The above section miist now be regarded as superseded, for most purposes, if not entirely repealed by the Justices Clerks Act, 1877 (40 & 41 Vic. o. 43), wliioh, after commanding (sect. 1) the payment of clerks of petty sessions by salary, whereas they are now paid by fees, says, in sect. 8 : — ■ Power of ' ' Whereas by section thirty of the act of the session of the local eleventh and twelfth years of the reign of her present Majesty, Digitized by Microsoft® JUSTICES CLEKKS ACT. 87 chapter forty-three, intituled ' An Act to faoiHtate the per- authority tomanoeot the duties of justices of the peace out of sessions and seore- mtmn Jingland and Wales -with respect to summary con- tary of Tictiona and orders,' provision is made for the maMng of tahles state as to rf f^^ *° ^® ^^^^ *° ^^'^ "l^^'^ of special and petty sessions, *a^le of and to the clerks of justices of the peace, and it is expedient to ^^? ^""^ make such further provision as is hereinafter mentioned con- ^dj^t- cermng the same ; be it therefore enacted as foUovrs :— ? • °* "The said section thirty is hereby repealed so far as relates ™rti?n to' to clerks of special and petty sessions and clerks of justices of falarv of the peace, without prejudice to anything done in pursuance of clerks that section. 11 & 12 V "Where it appears to a local authority that the aggregate o 43 "' amount received by the treasurer of that authority in respect ' ' of court fees unduly exceeds or unduly falls below the aggregate amount paid by that authority by way of salary to the clerks of petty sessional divisions, or in the case of a borough to the clerk to the justices of the borough, or that otherwise it is expedient so to do, the local authority may make a table of the court fees which in their opinion should be taken, and shaU cause such table, signed by the chairman, mayor, or other presiding officer of the local authority, to be laid before a secretary of state, and a secretary of state may, if he think fit, alter such table of fees and settle the same (having due regard to the relation of the aggregate amounts so received and paid as aforesaid), and certify that the fees in the table as settled by him are proper to be taken within the jurisdiction of the said local authority. " Where complaint is made to a secretary of state that the aggregate amount received by the treasurer of a local authority in respect of court fees unduly exceeds or unduly falls below the aggregate amount paid by that authority by way of salary as aforesaid, or that for other reasons it is expedient that the table of court fees should be revised, he may, if he think fit, by order, require the local authority to make a return to bitn within the time specified in the order of the aggregate amount so received and paid during three years previous to the order, or of the table of court fees ia force for the time being, as the case may be, and if, on receiving such return, or on the failure of the local authority to make the return, he is, after making such inquiry as he thinks proper, satisfied of the truth of the complaint, he may, by order, require the local authority to make and lay before birn, vrithin the time (not being less than four months from the date of the order) specified in the order, a table of court fees in pursuance of this section, and if the local authority fail to comply with the order, he may, in like manner (so nearly as circumstances admit) as if the local authority had laid before him a table of fees ia pursuance of this section, settle a table of fees ^nd certify that the fees in that table are proper to be taken within the jurisdiction of the said local authority. "A secretary of state, upon certifying i table of fees in pursuance of this section, shall cause copies thereof to be sent Digitized by Microsoft® SUMMARY PEOCESS BEFORE JUSTICES. to the clerk of the local authority to be by him distributed to the clerks of petty sessional divisions and clerks to justices within the jurisdiction of that authority, and if at any time thereafter any of those clerks or any other person •wilfully demands or receives any other or greater court fee than such as is set down in the said table, he shall forfeit for everjr such demand or receipt twenty pounds, to he recovered by action of debt by any person who may sue for the same. " UntU a table is made in pursuance of this section, any of the said clerks may demand and receive such fees as he is at the passing of this act lawfully authorized to demand and receive. ' ' The expression ' court fee ' in this section means any fee, gratuity, or sum which may by law be demanded or received in respect of any business or act transacted or done by a clerk of special or petty sessions or a clerk of justices of the peace as such clerk, notwithstanding that by reason of such clerk being paid by salary, or of the provisions of this act, he cannot receive the same for his own use, and includes fees for the giving of copies of depositions by any clerk mentioned in this section, whether received for his own use or not." C) Of. as to the Metropolitan district, 10 Geo. 4, c. 44, s. 37 ; 2 & 3 Vic. e. 47 ; 2 & 3 Vic. c. 71 ; and 3 & 4 Vic. c. 84. In m-ay V. Chapman, 14 Q. B. 742; 19 L. J., M. G. 155; F. & H. Dig. 9589-90, the clerks of the justices to a part of Surrey for which no police court bad been established, claimed to deduct from the amount payable to the receiver the amount of their fees for summonses granted on the application of ofBcers of the police force. It was held, that clerks were entitled to such fees, but that they were not entitled to deduct them from the amount payable to the receiver, or in any way to recover them from hun, the payment of such fees not falling under the description of carrying the acts into execution. (') If the defendant is unable to pay the fees (even though he should be committed ia default), the clerk can sue the prosecutor. TFraj/ v. Chapman, supra. But a clerk paid by salary must account for all fees. 14 & 15 Vic. c. 55, s. 11. And where the clerk is so paid (as is now required by 40 & 41 Vic. c. 43, s. 2), the justices may, by 14 &, 16 Vic. c. 55, s. 12, remit all fees. By s. 10 of 40 & 41 Vic. c. 43, that act (the Justices Clerks Act, 1877) and the 14 & 15 Vic. c. 55, are, so ' far as is possible, to be read as one. Beguia- XXXI. (h) And be it enacted, that in every 'whompe- Warrant of distress to be issued as aforesaid the S^Jafd? constable or other person to whom the same shall , be directed shall be thereby ordered to pay the amount of the sum to be levied thereunder unto the clerk of the division in which the justice or justices issuing such warrant shall usually act; 10 Geo. 4, c. 44, s. 37. 2 & 3 Vic. c. 47. 2 & 3 Vic. c.71. 3 & 4 Vic. c. 84. 14 & 15 Vic. c. 55, ss. 11, 12. 40&41Vio. 0. 43, ss. 2, 10. Digitized by Microsoft® PENALTIES. 89 and if any person convicted of any penalty,' or ordered by a justice or justices of tlie peace to pay any sum of money, shall pay the same to any constable or other person, such constable or other person shall forthwith pay the same to such clerk; and if any person committed to prison upon any conviction or order as aforesaid for nonpayment of any penalty, or of any sum thereby ordered to be paid, shall desire to pay the same and costs before the expiration of the time for which he shaU be so ordered to be imprisoned by the warrant for his commitment, he shall pay the same to the gaoler or keeper of the prison in which he shall be so imprisoned, and such gaoler or keeper shall forthwith pay the same to the said clerk ; and aU sums so received by the said clerk shall forthwith be paid by him to the party or parties («) to whom the same respectively are to be paid, according to the directions of the statute («') on which the in- formation or complaiut in that behalf shall have been framed ; and if such statute shall contain no such directions for the payment thereof to any person or persons, then such clerk shall pay the same to the treasurer of the county, ridiag, di- vision, liberty {j), city, borough, or place for which such justice or justices shall have acted, and for which such treasurer shall give him a receipt with- out stamp ; and every such clerk, and every such Clerks to gaoler or keeper of a prison, shall keep a true and counts*of exact account of all such monies received by him, ^ecdvS^^ of whom and when received, and to whom and &0- ™: tiie when paid, in the form (T.) in the schedule to schedule to this act annexed, or to the like effect, and shall and render Digitized by Microsoft® 90 SUMMARY PKOCESS BEFOBE JUSTICES. the same to once in every month render a fair copy of every at ^sessions, such account unto the justices who shall he as- sembled at the petty sessions for the division in ■which such justice or justices aforesaid shall usually act, to he holden on or next after the first day of every month, under the penalty of forty shillings, to be recovered by distress in manner aforesaid ; and the said clerk shaU. send or deliver every return so made by him as aforesaid to the clerk of the peace for the county, riding, division, liberty, city, borough, or place within which such division shall be situate, at such times as the court of quarter sessions for the same shall order in that behalf. 6 & 6 Will. W '^^^ section seems to supersede the 126tli section of the 4 76 ' 5 & 6 Will. 4, c. 76 (Mumoipal Corporations Act, 1835). But s.' 126. ' cf. 3 & 4 Vio. u. 97, s. 16 ; Att.-Gm. v. Moore, 42 J. P., No. 1, 3 & 4 Vic. p. 7, and Wrmj v. Ellis, 1 E. & E. 276. c. 97, s. 16. (i) Wiere a statute directs a particular application of a penalty, a conviction directing a difPerent application ia had, and formerly rendered the justice signing it liable to an action for false imprisonment at the suit of a party committed for nonpayment. Griffith v. Sarris, 2 M. & W. 335. Thus, fOr example, a conviction adjudging a distribution of pSxt of a forfeiture (which the statute said should be paid to the over- seers of the poor of the parish for the use of the poor of the parish) to , the overseers oi the poor of a township was held incapable of being supported. E. v. Friest, 6 T. B. 538 ; E. & H. Dig. 5144. And cf. S. v. Seton, 8 East, 568; E. & H. Dig. 5144 ; there it was held that under the 42 Geo. 3, c. 119, against illegal lotteries (now partially repealed by stat. : IJ. , Rev. Act, 1872), directing the penalty to be distributed one third to the king, one third to the informer, and one third to "the person apprehending or securing the offender," a con- viction directing the penalty to be distributed " as the law directs," without ascertaining to whom the last third was to be paid (the person being uncertain), was bad. In Cliaddock V. Wiliraham, 5 C. B. 645; 17 L. J., M. C. 79, a conviction by which the penalty was ordered to be paid ' ' to the treasurer of the county of C, in which the offence was committed, to be by him appUed according to the directions of the statute," or the party in default to be imprisoned for two months, was held bad ; but see the distinction which is drawn by the ease Digitized by Microsoft® FORMS. 91 immediately following. In summary oonviotions by justices of the peace, if any discretionary power is reserved to the justices relative to the application of the penalty, the convic- tion should show in what manner they have exercised it ; hut where the appUcatiou of the penalty is fixed hy law, it is enough to say that they award the penalty to he applied as the law directs. Re Boothroyd, 15 M. & W. 1 ; 15 L. 3.,-M.. C. 57 ; F. & H. Dig. 5145. (j) The words "liherty, city," &c. ia this section mean a liberty, city, borough, &o. which has a court of quartei; ses- sions. Mayorof SeigateY.SaHy'L.'R., Z Q,.'B. Hi; STlii.S., M. C. 70; 18L. T., N. S. 237. By this section penalties imposed by justices acting in and for a municipal borough having a separate commission of the peace, but no separate quarter sessions, in respect of offences against the law of the land, are now payable to the treasurer of the county and not of the borough, like penalties imposed by such justices under 9 Greo. 4, c. 61, not awarded to the pro- secutor under sect. 20 (repealed). TFinn v. Mossman, L. E., 4 Q. B. 292 ; 38 L. J., Ex. 200 ; 20 L. T., N. S. 672. See further (as regards the metropolis), WrayY. Chapman, 14 Q. B. 742; 10 Geo. 4, c. 44, s. 37 ; 2 & 3 Vic. cc. 47, 71 ; 3 & 4 Vic. c. 84. The lords of the treasury ought to pay over to the comity treasurer the full sum which he has expended in prosecutions, and have no authority whatever to have the bills re-taxed, though, as the said lords receive the sums granted annually to her Majesty as servants of the crown, and are under no obliga- tion towards the persons to whom sutfh sums may be ultimately paid, no mandamus will lie {R. v. Treasury (Lords Gommis- sianers), L. B., 7 Q. B. 387) ; even although there may be no other remedy except by petition [Hid.), Ashby v. White (Smith, L. 0. vol. 1) non obstante. The principle of this rule seems to be, that the Court of Queen's Bench cannot, in the exercise of its prerogative jurisdiction, claim to control either the crown in the discharge of its duty, or the crown's servants to whom that duty is deputed, who are amenable to the crown. Of. the judgment of Cockbum, 0. J., in the above ease. See also 29 & 30 Vic. c. 39, s. 14. XXXII. And be it enacted, that the several forms in the schedule to this act contained, or forms to the lite effect, shall he deemed good, valid, and sufficient in law {k). Uc) This section does not forbid the magistrate to vary the forms so far as may be necessary, and withm the metropolitan district 2 & 3 Vic. o. 71, s. 48, expressly authorizes him to do so. Forms given in particular statutes may, of course, be employed, and it is also allowable to draw up forms specially adapted to particular cases. But in such an event it is neces- sary to be careful that the jurisdiction of the justices should 10 Geo. 4, C.44, s. 37; 2&3 Vic. CC. 47, 71 ; 3 & 4 Vic. c. 84. 29 & 30 Vie. 0. 39, s. 14. Forms in the sche- dule deemed valid. 2 & 3 Vict, c. 71, s. 48. Digitized by Microsoft® 92 SUMMARY PROCESS BEFORE JUSTICES. appear, that the ofEenoe should be correctly stated in. the con- viction, and that the warrant of committal should correspond \sdth it, and should also be exact in respect of the duration and manner of the imprisonment. In Rogers v. Jones, 3 B. & 0. 409, the conviction of a person for a different oifeuce from that recited in the commitment was held no justification of the imprisonment ; and where the com- mitting magistrate, beiog sued for false imprisonment, tendered (in order to save his'costs), imder 43 Geo. 3, c. 114 (repealed), evidence to show that the offence mentioned in the conviction had actually been committed, it was held that the statute in question applied only to cases where convictions had been quashed. In the case of Jaques Besset, 6 Q. B. 481, under the repealed Conviction Act, 6 & 7 Vic. o. 75 (Extradition), a warrant to detain a party until he should be discharged by due course of law was held insufficient, and the party imprisoned under it was held entitled to his discharge on habeas corpus. In E. V. Sale, 3 Burr. 1636, a commitment as a rogue and vagabond on sect. 7 of the repealed statute 17 Geo. 2, c. 5, for leaving wife and children on the parish, was held invalid ; (1,) because it did not allege that the wife and children were chargeable to the parish ; and (2,) because defendant was not committed for any limited time, but ' ' till he shall be discharged according to the laws and customs of this realm." In Wood V. Fenwiclc, 10 M. & W. 195, where the conviction directed that a servant, for absenting himself xmlawfuUy from service, should be imprisoned in the house of correction, "there to remaia and be held to hard labour for one month," a form of commitment directing the keeper to receive him into custody, ' ' there to remain and be corrected, and held to hard labour for one month," was, although following the words of 20 Geo. 2, c. 19, s. 2 (then operative), held to be bad. The ground of this decision was, apparently, that the words "and be cor- rected" added a punishment not mentioned in the conviction or authorized by the statute ; and it should be observed, that according to S. v. Soseason, 14 East, 605, the additional words might be taken to imply correction by whipping. Where an act of parhament gives summary proceedings for various offences, a conviction, though formally drawn, will not support a commitment if it leaves it uncertain under which section of the act the conviction actually took place. Charter V. Greame, 18 L. J., M. C. 73. In E. V. Milner, 3 D. & L. 128 ; 14 L. J., M. C. 157, an order (under 8 & 9 Vic. c. 10, which provided for the validity of proceedings in bastardy, if set forth according to the forms in the schedule, or to the like tenor and effect) reciting that application had been made for a summons to a justice of the peace " usually acting in this division," was held good on the ground that as by the statute in question the words "in" and "for" are used synonymously the jurisdiction of the justice sufficiently appeared on its face. But in M. v. Whittles, 13 Q. B. 248; 18 L. J., M. C. 96, an order described as having Digitized by Microsoft® STIPENDIARY MAGISTRATES. 93 been made " at a petty sessions, &g. holden in and for the petty sessional division of H., in the county, &o.," H. being a township where petty sessions were held as at several other neighbouring places in a petty sessional division called B., was held bad as appearing to be made at a petty sessional division which did not exist. And cf. R. v. Totnes Union, 7 Q. B. 690. In Oroome v. Forrester, 6 M. & S. 314, a conviction under 17 Geo. 2, c. 38, s. 2, adjudging that an ex-overseer "should 17 Geo. 2, be committed to the common gaol, to be safely kept until he c. 38, s. 2. should have yielded up all and every the books oonoeming his office of overseer belonging to the parish," was held void (as to the adjudication respecting the imprisonment) for excess, the same extending beyond what was previously required of the person convicted; and a warrant of commitment, founded on this conviction and directing the gaoler to keep him in the terms of the conviction, was held void in toto. But where a ' prisoner has been lodged in gaol imder a bad warrant of com- mitment, even in the nature of a conviction, a good warrant of commitment subsequently delivered to the gaoler, but before a rule for a habeas corpus has been obtained, is a good answer to the rule. Ex parte Cross, 2 H. & N. 354 ; 26 L. J., M. C. 201 ; F. & H. Dig. 4280. See also Eggington v. Mayor of Lichfield, ante, sect. 17; and see sect. 23, n. (m), and Re Fletcher, 13 L. J., M. C. 16; R. V. Woodside, 7 Cox, C. 0. 238; Cox, M. C. 87; R. V. Kent, 2 Ld. Raym. 1546; R. v. Feacham, 1 L. T., N. S. 106; Coster v. Wilson, 3 M. & W. 411; R. v. Wilcook, 7 Q. B.- 317; 14 L. J., M. G. 104. Several of the cases cited in this note (as elsewhere) were decided before the passing of 11 & 12 Vic. c. 43, but the principles which govern them are important to be observed when the hazardous course is adopted of departing from statutory forms. Possibly a conviction (in the absence of express enactment to the contrary) would always be sufficient if it stated facts constituting an>offenoe under the statute pro- ceeded upon. It may perhaps be taken as a rule that the con- viction should state the ofBence so clearly as to operate ia bar of subsequent proceedings for the same matter, as the defendant ought not to be twice tried for one cause. Newman v. Bendyshe, 8 L. J., M. C. 58; R. v. Daman, 2 B. & Aid. 378; but of. Tarry v. Newman, 15 M. & W. 645. XXXIII. AndlDeiteiiactedjtliatany oneof the Metropoii- magistrates appointed or hereafter to be appointed, magis- to act at any of the police courts of the metropolis, g^^en^aiy and sitting at a police court within the metropolitan map- police district, and every stipendiary magistrate ap- other pointed or to be appointed for any other city, town, Lralone. liberty, borough or place, and sitting at a police court or other place appointed in that behalf, shall have Digitized by Microsoft® 94 SUMMAEY PROCESS BEFORE JUSTICES. Nothing to affect powers, &o. con- tained in 10 Geo. 4, 0.44, 2 & 3 Vic. c. 47, 2 & 3 Vic. c. 71, and 3 & 4 Vic. c. 84. 21&22Vic. 0.73. 32 & 33 Vic. C.34. The lord mayor, or any alder- man of London may act alone. full power to do alone whatsoever is authorized by this act to he done by any one or more justice or justices of the peace ; and that the several forms hereiaafter mentioned may be varied, so far as it may be necessary to render them applicable to the police courts aforesaid, or to the court or other place of sitting of such stipendiary magistrate; and that nothing iu this act contained shall alter or afEect in any manner whatsoever any of the powers, provisions or enactments contained in an act passed ia the tenth year of the reign of his late Majesty King Greorge the Fourth, intituled " An Act for improving the police in and neax the me- tropolis," or in an act passed in the third year of the reign of her present Majesty, intituled "An Act for further improving the police iu and near the metropolis," or in an act passed in the same year of the reign of her present Majesty, intituled " An Act for regulating the police courts in the metropolis," or in an act passed in the fourth year of the reign of her present Majesty, intituled "An Act for better defining the powers of justices within the metropolitan police district (k). (Jc) With regard to the appointment of deputies by stipen- diary magistrates, of. 21 & 22 Vic. c. 73, and 32 & 33 Vic. 0. 34. XXXrV. And be it enacted, that it shall be lawful for the lord mayor of the city of London, or for any alderman of the said city, for the time being, sittiag at the Mansion House or Gxiildhall justice rooms in the said city, to do alone any act, at either of the said justice rooms, which by any law now in force, or by any law not containing Digitized by Microsoft® APPLICATION OF ACT. 95 an express enactment to the contrary hereafter to be made, is or shall be directed to be done by more than one justice {I) ; and that nothing ia Notliing to this act contained shall alter or affect in any powers, manner whatsoever any of the powers, provisions, taiiedln or enactments contained in an act passed in the ^ ^^ ^'°* third year of the reign of her present Majesty, intituled "An Act for regulatiag the police in the city of London." {!) The practical effect of this enactment is to give the city 2 & 3 Vic magistrates authority in matters not provided for in the 2 & 3 co. 47, 71, i Vic. cc. 47, 71, xoiv, and added hy 3 & 4 Vic. c. 84 only to xoiv. the metropolitan magistrates, exclusive of the city. It has 3 & 4 Vic. been held that sect. 13 of the last-named act, enabling a metro- o. 84, s. 13. politan stipendiary magistrate to send a constable to view deserted premises in order to put the owner in possession, under 11 Geo. 2, c. 19, is, notwithstanding 11 & 12 Vic. c. 43, n Geo. 2, s. 34, not extended to the city magistrates. Edwards v. c. 19. Hodges, 15 C. B. 477. Nor is it to county magistrates in the metropolis. Ibid. XXXV. And be it enacted, that nothing ia To what this act shall extend or be construed to extend to shall not any warrant or order for the removal of any poor person who is or shall become chargeable to any parish, township or place {m) ; nor to any com- plaints or orders made with respect to lunatics, or the expenses iacurred for the lodgiag, maiatenance, medicine, clothing or care of any lunatic or iasane person (w) ; nor to any information or complaint or other proceediilg under or by virtue of any of the statutes relating to her Majesty's revenue of excise (o) or customs, stamps, taxes or post office; nor shall anything in this act extend or be con- strued to extend to any complaints, orders or warrants in matters of bastardy made against the putative father of any bastard child, save and Digitized by Microsoft® extend. 96 SUMMARY PROCESS BEFORE JUSTICES. 4 & 6 wm. 4, c. 76, S3. 84, 99. ll&12Vio. 0. 43, s. 6. 26&27Tic. 0.77. 3 & 4 Vic. c.54,ss.l,2. 9 Geo. 4, c. 61. except such of the provisions aforesaid as relate to the backing of warrants for compelling the appear- ance of such putative father or warrants of dis- tress, or to the levying of sums ordered to be paid, or to the imprisomnent of a defendant for non- payment of the same (p) (m) This proTJeion does not exempt from tte operation of tlie_ act an order (4 & 5 Will. 4, u. 76, ss. 84 & 99) upon the parish of settlement for the payment of the costs of the main- tenance of a pauper incurred between the service of the order of removal, Sec, and the actual removal, and the information for the non-payment must therefore be laid within six months under the generallimitationof the 11th sect. Sill,a,-pp.-v. Thorn- croft, resp., 30 L. J., Q. B. 97; M. C. 52; Cox, M. C. 229. («) The original operation of this section in limiting' the ap- plication of the 6th section {supra) has been removed by 26 & 27 Vic. 0. 77; and in The Clerk of Bradford Union \. Wilts, L. E., 3 Q. B. 604 ; 37 L. J., M. C. 129, it was held that since 26 & 27 Vic. 0. 77, where a criminal (who had become insane since his incarceration) had by order of the secretary of state been re- moved from the county gaol of W., in the borough of £., to a licensed asylum in another county, county justices for W., sitting in the borough of B., have jurisdiction to make an order on the union of B. to pay the reasonable expense of the inquiry into the prisoner's sanity, the cost of his removal, and the expense of his maintenance. See also E. v. Lewes Justices, wherein it was held that the justices for the county of Sussex having contracted vrith the Brighton Borough Council for the receipt and maintenance at Lewes gaol of all prisoners maintain- able at the expense of the borough of Brighton, -were the per- sons to make inquiry, under 3 & 4 Vic. c. 54, ss. 1, 2, into the sanity, pecuniary circumstances, and legal settlement of a person committed to Lewes gaol under a warrant of a Brighton magis- trate to be tried on a charge of murder. L.E.,10Q.B. 166,679. (o) This exception does not apply where the particular infor- mation or complaint proceeds upon a section of a statute not re- lating to the revenue of excise, &c., although there are other sections in the statute vrhioh do relate to the revenue of excise, &c. A conviction, therefore, under the repealed sect. 8 of 4 & 5 "Will. 4, u. 85, for signing a false certificate for the purpose of obtaioing a licence for the sale of beer, drawn up in the form provided in schedule (I. 1) of 11 & 12 Vic. c. 43, was held valid (Eeg. V. Bahewell, 26 L. J., Q. B. 248 ; 3 Jur., N. S. 1003; 29 L. T. 209 ; Cox, M. C. 9. And in the notes to Paley's Sum- mary Convictions (appendix, " Alehouse keeper") it is laid down that the 9 Geo. 4, c. 61 (unlike the 11 Geo. 4 & 1 Will. 4, 0. 64, the 4 & 5 WiU. 4, c. 85, and the 3 & 4 Vic. 0. 61) is not excluded from the operation of the 11 & 12 Vie. c. 43, by the reference of the 35th sect, to "excise or customs," Digitized by Microsoft® APPLICATION OF 11 & 12 YlC. C. 43. because the keeper of a conmioiL inn, alehouse or victualling' house requires a magistrates' licence by 9 G-eo. 4, c. 61, and •iis-y by that statute procure a Koeuce to sell beer and cyder as well as wiae and spirits without taking out a Uoenoe under the excise acts referred to, which regulate the keeping of retail beer-houses. (p) The concluding portion of this section, which excluded the Pactory Acts from the operation of the statute, is now repealed by 34 & 35 Vic. o. 104, s. 11 ; and since the passing of that enactment the Statute Law Eevision Act, 1876 (39 & 40 Vic. _c. 20), brings under 11 & 12 Vic. o. 43, certain ofienoes previously excluded from it. This is done by sect. 1, which is as follows: "1. There shall be repealed so much of section ten of the Inolosure Act, 1848, and of section ten of the Inclosure Act, 1849, and of section thirty-three of the Inolosure Act, 1852, as incorporates or refers to any provisions of the act of the seventh and eighth years of the reign of King G-eorge the Fourth, chapter thirty, intituled 'An Act for consolidating and amend- ing the laws in England relative to malicious injuries to pro- perty,' and which last-mentioned provisions have since been repealed, and in place thereof be it enacted, that — "Any offence under section ten of the inclosure Act, 1848, and under section ten of the Inclosure Act, 1849, and under section thirty-three of the Inclosure Act, 1852, shall be deemed to be an offence punishable on summary conviction under the Siimmary Jurisdiction Act and the acts amending the same : Provided that any penalty or forfeiture iaourred shall be applied in maimer provided by the said Inclosure Acts, and that any information in relation to any such offence as is mentioned in this section shall be heard, tried, determined and adjudged before two justices." The 35th section of 11 & 12 Vic. u. 43 prevents those parts of 11 & 12 Vic. c. 42 incorporated by 11 & 12 Vic. c. 43, s. 6, from operating in any of those oases which the said 35th. section declares to be excluded from the operation of 11 & 12 Vic. c. 43. S. V. Tiffield Inhabitants, 22 J. P. 784, and see S. V. Middlesex Justices, ibid. 305. XXXYI. {q) [E^pealing clause.] (?) Repealed 38 & 39 Vic. c. 60. The enactments repealed by it, i. e. 18 EUz. o. 5, s. 1 (in part) ; 31 EUz. c. 5, s. 5 (in part) ; 27 Geo. 2, o. 20, ss. 1 and 2 ; 18 Geo. 3, u. 19, ss. 1—3, 5; 33 Geo. 3, c. 55, s. 3 ; 3 Geo. 4, c. 23 ; 5 Geo. 4, c. 18 ; 6 & 7 Win. 4, c. 114, s. 2, are now obsolete by operation of the Statute Law Eevision Acts. 34&35Vic. 0. 104,8.11. 39 & 40 Vic. c. 20, s. 1. Substitu- tion of ' Summary Jurisdic- tion Act for re- pealed act 7&8Geo.4, 0. 30, in certain sections of the In- closure Acts 11 & 12 Vic. 0. 99, s. 10. 12 & 13 Vic. e. 83, s. 10. 15 & 16 Vic. c. 79, s. 33. 11 & 12Vio. c. 43, s. 6. XXXVII. And te it enacted, that the town of Act to ex- Berwick-upon-Tweed shall he deemed to be within Bawick- England for aU the purposes of this act ; but that ^^^^^ ^^^^ o. H . ' Digitized by Microsoft® 98 SUMMARY PROCESS BEFORE JUSTICES. not to nothing in tMs act shall extend or be construed to Ireland,' extend to Scotland or Ireland, or to the Isles of a8°to?ac^- Man, Jersey, Ghiemsej, Aldemey or Sark, save Warrants ^^^ except the Several provisions respecting the under 11 & backing of Warrants contained in an act of parlia- 12 Vic. c. 42. " ment passed in this present session, intituled " An Act to facilitate the performance of the duties of Justices of Sessions within England and "Wales with respect to persons charged with indictable offences," and incorporated into this act as afore- said. XXXVIII. and : (?■) Eepealed, 38 & 39 Vic. c. 66. Digitized by Microsoft® ^^puUm. Appendix I. — ^Aebest, &c. „ II. — ^Appeal. „ m. TUTELAET JlTEISDICTIOIf. ,, IV. — ScHEDtTLES. h2 Digitized by Microsoft® Digitized by Microsoft® ^^pnVxm. Appendix I.— ARREST, &c. Aerest totdee Waeeant. Though the forms of warrant (B. and C.) supplied in tlie schedule to this act are in fact so framed as to express the substance of the information, it appears not to he necessary that the warrant should recite the proceedings on which the arrest is founded. R. v. Davis, 30 L. J., M. C. 159. The importance of strict legality in the warrant, as in other elements of arrest, is enhanced by the prin- ciple that where the apprehension is illegal a sub- sequent warrant, though unobjectionable, will not justify the detaining of the person unlawfully taken, if it be issued at suit of the same parties as the first (i?. V. Myers, 1 T. E. 265), though a third party, innocent of the original illegality, may take advan- tage of it by lodging a ca. sa. Ex parte Egginton, 2 E. & B. 717 ; Re Ramsden, 3 D. & L. 754 ; Paley, Sum. Conv. (4th ed.), 292. When a warrant has been issued to apprehend a person for an offence less than felony, the police officer who executes it must have the warrant in his possession at the time of arrest ; otherwise, if the person sought to be arrested should assault the officer in such a case, he cannot be convicted on an indictment charging him with assaulting the officer in the execution of his duty. It makes no difference that a sujnmons had been issued before the warrant and disregarded. Codd v. Cabe, L. E., 1 Ex. Div. Digitized by Microsoft® 102 APPENDIX 1. c. 43, s. 23. 352 ; 45 L. J., Ex. Div. 101 ; Galliard v. Laxton, 31 L. J., M. 0. 123. It is not absolutely necessary that manual posses- sion should be taken of tbe person arrested, provided he is told that he is taken prisoner, and that he sub- mits ; but merely showing a warrant, even though the person named therein follows the constable without parley, does not constitute a sufficient arrest. Arrow- smith V, Le Mesurier, 2 N. E. 211 ; Bus sen v. Lucas, 1 0. & P. 153. In a. V. Saunders, 36 L. J., M. 0. 87, it was held that a justice's warrant of commitment in execution, upon a conviction for a penalty in the first instance ll&12yio. under 11 & 12 Vic. c. 43, s. 23, addressed according to Perm 0. 1, Sched., "To the constable of G.," a parish in the county of L., must be read as directed to the parish constable of G. (there being such an officer) who must execute it, and that its execution by a county policeman was illegal. Therefore a conviction for wounding a county policeman in the execution oi, such a warrant, with intent to resist the prisoner's lawful apprehension, was quashed. Within the metropolitan police district the rule is different. By 2 & 3 Vic. c. 47, s. 12, aU summonses c. 47, s. 12. ^jj^ warrants issued in any criminal proceeding within the metropolitan police district, or by any magistrate within the said district, shaU. be served and executed by a constable of the metropolitan police force, and none other. And by 2 & 3 Vic. c. 71, s. 18, amended by 21 & 22 Vic. c. 73, s. 6, every summons or warrant issued by any justice of the counties of Middlesex, Surrey, Kent, Essex or Hertfordshire respectively, requiring any person residing within the metropolitan poHce district, to appear at any place without the said district, to answer any information or complaint touching any matter arising within the said district (except matter arising within any part of the said district not assigned to any of the police courts of the metropolis), shall be utterly void except for the purpose of en- forcing payment of any rates or taxes levied within any parish or place, part only of which is within the metropolitan police district. 2 & 3 Vic. 2 & 3 Vic. 0. 71, s. 18. 21 & 22 Vie. c. 73, s. 6. Digitized by Microsoft® ARREST. 103 The provision of 11 & 12 Vic. c. 42, s. 4, enabling ii&l2Vio. ■warrants for the apprehension of persons charged <=• *2, s. 4. with indictable offences, and search warrants to be executed on Sunday is not adopted into 11 & 12 yic. c. 43, and does not apply to other -warrants than those expressly named. But 29 Car. 2, c. 7, s. 6, excepts 29 Car. 2, from the cases in which arrest on Sunday is thereby •=■ '^> ^- ^• prohibited the cases of treason, felony, or breach of the peace, and (as it has been ruled) apprehended breaches of the peace, so that a man may be taken by warrant on Sunday to find sureties. Johnson v. Coulton, T. Eaym. 250. According to Coke (9 Eep. 6) an arrest may be made ia the night. But the officer's authority must then be plainly showed. 1 Hale, 460. From Lannock v. Brown, 2 B. & A. 692, it seems to be settled that after demanding entrance, a con- stable may if necessary break open the outer door to arrest a felon, and that in case of misdemeanor he may do so to. The necessity of a previous demand for admission seems to be doubtfid in case of felony; but clear ia case of misdemeanor. This protection, so far as it goes, does not extend to inner doors, which seem to rest on the same footing as cupboards, boxes, &e. {Lee v. Gansel, 1 Oowp. 1 ; Semayne's case, Smith, L. 0. i., 113); and no special sanctity attaches to barns, outhouses, &c. Ibid. It is laid down as the third resolution in Semayne's case, that when the king is party the sheriff may break open the other party's doors, either to arrest him or to do other execution of the king's process. Smith, L. C. i., 107. But how far this rule covers aU arrests for misdemeanor may be doubtful. Doors may be broken, as stated by Sir Michael Poster ("Homicide," 319, 320), in case of felony or dangerous wounding, "or even where a minister of justice comes armed with process founded on a breach of the peace." Smith, L. C. i., 117, 118. And so also on a warrant to compel a man to find sureties for his good be- haviour. 2 Hawk. 14, 3. But I cannot find it stated anywhere in plain terms that on every warrant by a justice doors may be broken. Where a forcible entry is unlavrful, mere entry is equally ujilawfiil, though the person making it walk in through an Digitized by Microsoft® 104 APPENDIX I. open door, if lie had previously procured it to he opened by means of a trespass {Nash v. Lucas, 8 B. & S. 631; Cox, M. 0. 359); thougli qucere, if the person entering had been unconnected with the original trespasser. Ibid. Semhle, that the doors of a third person may not be broken, except the person sought is so resident there that it may be said to be temporarily his dwelling place. Coolte V. Bird, 5 Taunt. 765; Shire v. Brooks, 2 H. Bl. 120; Semayne's case. Smith, L. C. i., 113, 114. Distress. In oases of distress merely, a constable cannot (as is stated, though without any cited authorities, in Snowden's Constable's Guide) break open the doors of the owner of the goods ; though he may the doors of a third person, if the goods of the person agaiast whom the warrant is directed have been removed there to avoid seizure ; page 90 (6th ed.). At p. 174, however, it is stated, on the authority of 2 Hawk. 14, 3, that a constable having a warrant to levy the money adjudged by a justice to be levied by virtue of an act of parliament, which authorizes In'm to convict in a penalty, to a part of which the Queen is entitled, may break open doors to effect his purpose. An illegal execution seems to be valid and effectual as regards goods {Semayne's case, Smith, L. 0. i., 118; De Gondwin v. Lewis, ibid., and 10 A. & E. 120: see, however, Yates v. Delamayn, Smith, L. 0. 119, and Bacon's Abridgment, "Execution" (N.)); but void as against the person. Kerby v. Benby, 1 M. & W. 336; Smith, L.O. 119. All doors may be forced to arrest a person who having been arrested escapes and takes refuge ia a house (2 Hawk. 14, 9), provided a previous demand for admittance is made. Ibid. Seaech Waerants. The common law gives no power of issuing general warrants — i.e., in which neither defendant nor his offence are named ; and, except in case of stolen goods and some particular cases provided for by statute, magistrates ought not to issue a search warrant. A warrant to seize and carry away a person's Digitized by Microsoft® ARKEST SEARCH WARRANTS. 105 papers (in the case of a seditious libel) is illegal and void. Entich v. Carrington, 19 State Trials, 1074. And semble, that there is no power of issuing such a warrant at common law. Per Camden, 0. J., ihid. This case was tried in 1765, and, in the following year, the House of Commons passed two votes, the effect of which was to declare that general warrants were universally illegal, except in cases provided for by act of parliament. Journ. Com. 22 and 25 April, 1766 ; 19 State Trials, 1074, 1075. In the course of the above trial Lord Camden observed (p. 1067): — "The case of searching for stolen goods crept iato the law by imperceptible practice. It is the only case of the kind that is to be met with. No less a person than my Lord Coke (4 Inst. 176) denied its legality Observe, too, the caution with which the law proceeds in this singular case. There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant, to show them to the officer, who must see that they answer the description. And, lastly, the owner must abide the event at his perU, for £f the goods are not found he is a trespasser, and the officer, being an innocent person, will always be a ready and convenient witness against him." See, also. Hawk. P. C, bk. 2, c. 13, s. 17. The above expression of judicial opinion must be regarded as relating only to the common law, the rigour of which was par- tially relaxed by 7 & 8 Geo. 4, c. 29. See Crazier v. Candy, infra, p. 109, and see now 24 & 25 Vic. c. 96, s. 103, irfra. But, ia several classes of cases, the statute law has given magistrates the power of issuing search war- rants. Thus, 2 & 3 Vic. c. 71, s. 25, enabled a metro- 2 & 3 Vio. politan magistrate to issue a search warrant for goods 0. 71, a. 25. stolen or unlawfully obtained, and also to arrest all inmates criminally compromised in the deposit thereof ; and, by 24 & 26 Vic. c. 96, s. 103, i£ any credible 24&25Vio. witness proves on oath before a justice of the peace c.96,8. 103. that there is reasonable cause to suspect that any person has in his possession, or on his premises, any property whatsoever, on or with respect to which any Digitized by Microsoft® 106 APPENDIX 1. 37&38Vic. c. 49, s. 17. 38Vic.c.I7, B. 73. 34&35Vio. c. 105,8.13. 24 & 25 Vic. c. 97, s. 55. 6&7Wm.4, c. 37, s. 11. 24 & 25 Vic. c. 98, s. 46. 8 & 9 Tic. c. 109, s. 3. 16&17Tic. c. 119,8.11. 24&25Tio. c. 99, s. 27. 39&40 Geo. 3, c. 89, s. 11. 35 & 36 Vic. c. 93, s. 36. 24&25Vio. c. 110, s. 4. 20&2iyio. c. 83, B. 1. 6&7 Will. 4, 0. 37, s. 11. 8 & 9 Yio. 0. 109, S3. 3, 6. 16&17Vio. c. 119, SB. 11, 12. offence ptinislia'ble either upon indictment or summary conmction hy virtue of that act has been committed, the justice may grant a warrant to search for such property, as in the case of stolen goods. Again, by 37 & 38 Vic. c. 49, s. 1'7 (Licensing Act, 1874), a magistrate, if satisfied on oath that there is ^ probability of detecting any persons in the sale on any premises of liquors contrary to the law, may authorize a constable to enter and make search. See also 38 Vic. c. 17, s. 73 (as to the issue of search warrants by justices in case of explosives); 34 & 35 Vic. c. 105, s. 13 {ibid., petroleum); 24 & 25 Vic. c. 97, s. 55 (ibid., gunpowder suspected to be kept for the purpose of committing any offence coming under the Malicious Injuries Act); 6 & 7WiU. 4, c. 37, s. 11 {ibid., adulterated bread, meal, &c.); 24 & 25 Vic. c. 98, s. 46 {ibid., forged notes, engraving blocks, paper, &c.); 8 & 9 Vic. c. 109, s. 3, and 16 & 17 Vic. c. 119, s. 11 {ibid., apparatus of betting, &c., in betting houses); 24 & 25 Vic. c. 99, s. 27 {ibid., false coin, coining tools, &e.); 39 & 40 Geo. 3, e. 89, s. 11 {ibid., marine and Queen's stores, &o.); 35 & 36 Vic. c. 93, s. 36 {ibid., linen unlawfully pawned) ; 24 & 25 Vic. c. 110, s. 4 {ibid., dealers in old metals); 20 & 21 Vic. c. 83, s. 1 {ibid., obscene books), &c. With the ex- ception of 6 & 7 WUl. 4, c. 37, s. 11 (authorizing the search for adulterated bread, &c.), in all the above cases, the clause which authorizes the issue of the warrant requires a previous sworn information. But search may, in some instances, be made without the interposition of a magistrate. Thus, although an oath is necessary in applying for a justice's search warrant for the purpose of making arrests in gaming houses, under 8 & 9 Vie. c. 109, s. 3 (from which section, however, the metropolitan police district is excepted), and also for a justices' warrant to search a betting house, under 16 & 17 Vic. c. 119, s. 11 ; yet, under sect. 6 of the former, and sect. 12 of the latter, the Metropolitan Commissioners of Police may, for the purposes of the statute in question, authorize the search of houses within the metropolitan district, on the report in writing of a superintendent of the metro- politan police. So, while an oath is required by Digitized by Microsoft® SEARCH WARRANTS. 107 39 & 40 G-eo. 3, o. 89, s. 11, the 12tli section empo-wers any person, or those deputed by the Commissioners for the Navy, to stop and search any barge, &c., on suspicion ; and 38 & 39 Vic. o. 25, s. 6, gives the same power to any metropolitan poHoe constable in respect of carriages, &c., as well as boats, &c., in which he suspects that any government stores are contained, or any person suspected of having or conveying any such stores uidawfuUy obtained. And see Hutchings V. Reeves, ^c, 9 M. & W. 747. In certain specified cases, modern legislation has enabled search to be made upon a lesser authority than that of a magistrate. Thus, under the Preven- tion of Crime Act, 1871 (34 & 35 Vic. c. 112, s. 16), any constable, if authorized in writing by a chief officer of police, may enter in search of stolen pro- perty on premises which are, or have been, within twelve months, occupied by persons convicted of re- ceiving stolen goods, or harbouring thieves, or on premises which are occupied by any person who has been convicted of any offence involving fraud or dis- honesty, and punishable by penal servitude or impri- sonment. And the same section (73) of the Explosives Act, 1875 (38 Vic. c. 17), which regulates the issue by justices of search warrants on sworn information, provides that a government inspector, or (in cases of emergency) any constable or officer of the local autho- rity having a written order from a government in- spector or police superintendent, may enter, &c., &c. Only where a constable or officer, &c., enters and searches under this section on any less authority than a magistrate's warrant, a special account of his pro- ceedings, and the grounds for them, must be sent by the person authorizing him to the Secretary of State. And sect. 12 of 16 & 17 Vic. c. 119 enables a com- missioner of police to authorize a superintendent to search a betting-house, &c., as by sect. 11, supra, justices may order a constable to enter. I'urther exceptions to the constitutional presump- tion against domiciliary visitation have been, from time to time, made by the various sanitary acts, the principle of which is, indeed, affirmed in 6 & 7 WUl. 4, c. 37, s. 11, supra. In most parts of the country, sani- 39&40 Geo. 3, 0. 89, s. H. 38 & 39 Vic. 0. 25, a. 6. 34 & 35Vio. c. 112,8.16. 38Vio.o.l7, s. 73. 16 & 17 Vic. 0.119,8.12. 6&7Wm.4 0. 37, s. 11. Digitized by Microsoft® 108 APPENDIX I. 38 & 39 Vic. c. 65. 29 & 30 Vic. c. 90, s. 19. 38 & 39 Vic. c. 55, Bs. 91, 119, 343. 18 & 19Tic. 0.121,8.11. 29 & 30Yio. c. 90, s. 19. 37&38Vio. c. 89, s. 55. tary matters are now cMefly regulated by the Public Health Act, 1875 (38 & 39 Yic. c. 55), which enacts, sects. 92 — 96, 98, 102, 103, that if the local authority, or their officers, are not admitted to inspect any pre- mises for the purpose of ascertaining the existence of any nuisance, as deiSned ia sect. 91 (see infra, 29 & 30 Vic. e. 90, s. 19, which together make up the same category as 38 & 39 Vic. e. 55, s. 91), a justice, if satisfied thereof on oath, may make an order requiring their admission, and may compel the abatement of the nuisance. By sect. 119, a justice, on complaint upon oath by a medical officer of health, inspector of nuisances, or other officer of a local authority, may grant a warrant to any such officer to enter and search any premises in which such officer has reason to be- lieve that there is kept or concealed any animal car- cass, meat, fish, vegetables, &c., intended for sale as food for man unfit for it. The above enactments do not apply to the metropolis, within which, however, there are in operation several parts of statutes which, as regards the metropolis, are unaffected by the re- pealing clause (sect. 343) of 38 & 39 Vic. e. 55. Thus, by 18 & 19 Vic. c. 121, s. 11, if the local authority, &c. reasonably believe that a nuisance exists on any private premises, and their officer is not admitted on demand, any justice having jurisdiction may, upon proof on oath of these circumstances, authorize the local authority to enter and make iaspection. And by 29 & 30 Vic. o. 90, s. 19, the word "nuisance" is to include, besides deposits of noxious matter, defective privies, drains, &c., animals so kept as to be a nuisance, &c., houses or rooms unhealthily overcrowded, dirty factories, &c., furnaces which do not consume their own smoke, and chimneys (not belonging to a private dwelling) sendiag forth black smoke in such a way as to be a nuisance. Sect. 12 of 18 & 19 Vic. c. 121, enables the justices, if the existence of a nuisance is ascertained, to make an order for its abatement. By 37 & 38 Vic. c. 89, s. 55, any justice may, within the metropolis, on complaint upon oath of a medical officer, inspector, &c., grant a warrant to such officer to enter any premises and search for any unwhole- some meat, fish, vegetables, &c., alleged to be kept Digitized by Microsoft® SEAKCH WARRANTS. 109 for sale; and elsewhere a medical oiSeer of health has a right at aU reasonable times to inspect naeat, &o. 38 & 39 Vie. c. 55, ss. 116, 118. 38&39Vio. The precise degree and Mnd of certainty to be gj j^'g jjg created in the magistrate's mind before he issues a ' ' search warrant or analogous authority must depend upon the wording of the particular statute proceeded under. In Elsee v. Smith (decided in 1822), it was ruled that a positive oath that a felony is actually committed, was held not to be necessary to justify a magistrate in granting his warrant to search pre- mises, and apprehend a suspected person. 1 D. & E. 97. The warrant ought to specify some particular place for the search, which, as a matter of expediency, ought not to be made in the night unnecessarily (2 Hale, 150; 2 Hawk. 13, 10; Archb. J. P. (7th ed.), i. 1813) ; for the officer is justified, if necessary, ia breaking open doors to execute the warrant. 2 Hale, 151. But he should be careful not to seize any goods not specified in the warrant ; at all events, if they are not likely to be of use in proving the substantial charge. Crozier v. Candy, 6 B. & C. 232. It seems that prisoners are not entitled to copies of papers which have been seized at their house. R. v. Frost, 9 0. & P. 132. Arrest withottt Warrant. A warrant is not in all cases necessary to lawful apprehension. A constable may always, upon pro- bable suspicion of treason or felony, arrest the sus- pected felon, and is even justified in breaking doors for that purpose. And so where an affray is made in a house in his sight or hearing. 2 Hawk. o. 14, ss. 1 — 9. And a private person may break open a house to prevent murder. Handcock v. Baker, 2 Bos. & P. 260. Though, in the case of misdemeanor at all events, it is necessary, even in the execution of criminal process, to demand admittance before breaking the outer door. Lannock v. Brown, 2 B. & Aid. 592; and see Semayne's case, 1 Smith, L. 0. And if the constable ogj^^^g^f^^J^^ kiUed in 110 APPENDIX I. the affair, it is murder. 2 Hale, P. C. 88—96; Broom, Com. iv., 386. Nor is it necessary (as it is in the case of a private person, making an arrest) that any felony should actually have been committed. Broom, Com. iv., 387 ; Lawrence v. Hedger, 3 Taunt. 14 ; Nicholson v. Hardwick, 5 C. & P. 495 ; Beckwith V. Philby, 6 B. & C. 638, 639. It is sufficient that the officer should have reasonable grounds for be- lieving the prisoner to have committed felony. R. v. Tabberfield, 34 L. J. 20; 11 Jur., N. S. 1111 ; Cox, M. C. 95. So if a constable see any person commit treason, he may arrest the offender on the spot. 1 Hale, 587. And a felon may be taken whether the crime was committed at home or abroad. Oke, Mag. Syn. 876. But for mere noisy talking in the street {Hardy v. Murphy, 1 Esp. 294), or mere wilful tres- pass without any real damage {Butler v. Tarley, 2 0. & P. 585), a constable cannot in general arrest another without warrant. He cannot for a mere threat. Wheeler v. Whiting, 9 C. «& P. 262. And in R. v. Bright, 4 C. & P. 387, it was held that he might not do so even where the person arrested had stood in the garden of a house, declaring that if a light appeared in the windows he would break them; although, if a man station himself opposite to another's house, making a disturbance, exciting others to disturbance and riot, and obstructing the public way, these are facts which may well amount to such a breach of the peace as justifies an arrest. Per Erie, J., Webster v. Watts, 11 Q. B. 311, 324; Cohen v. Huskisson, 2 M. & W. 477; Broom, Com. 725. And certainly articles of the peace have been allowed to be exhibited where the violence threatened was threatened conditionally. R. v. Mallinson, 20 L. J., M. 0. 33 ; Ex parte Hulse, 21 L. J., M. C. 21. But where A. forcibly broke into B.'s dwelling house within the City of London police district, and in the presence of a police officer of the City, it was held that C. was justified in giving A. into the custody of the said police officer for the said offence, to be con- veyed before a magistrate of the City. Drerecourt v. Corbishley, 24 L. J., M. C. 138. It was observed in the judgment of this case, that the officer might legally hav/§fgj|(g^§%yt)|^^,§^^^t propria motu. And ARREST. Ill where a mob is assembled and increasing in con- sec[uence of abusive language used by a person, a constable who hears him. is justified in arresting and taking him before a magistrate, to prevent a breach of the peace, though no actual riot is proved. Cohen y. Huskisson, 6 L. J., M. 0. 1 33. A, person is justified in giving in charge, and a constable in arresting without warrant, a party who has committed a breach of the peace, if the breach is continuing, or if there are reasonable grounds for apprehendjjig its con- tinuance or immediate renewal, but not otherwise ; and the circumstances from which such an inference is raised is for the consideration of the jilry. Baynes V. Brewster, 11 L. J., M. 0. 5. So a constable may arrest without warrant any person whom he sees commit an assault, even after the violence has ceased, provided all danger of further violence has not ceased. And where a wound has been given, which there is reasonable ground to suppose may end in a felony, the constable may take the party who has given such wound into custody without a warrant. Coupey v. Henley, 2 Esp. 540. R. v. lAght, 7 Cox, 0. 0. 389, 0. 0. E. Where, how- ever, in one instance one hour, and in another two hours, had elapsed, since the assault, wounding with intent to resist apprehension without warrant was held not to be " wounding with intent to resist Icmful apprehension." R. v. Marsden, 37 L. J., N. S., M. C. 80 ; R. v. Walker, 1 Dears. & Pearce, 0. 0. 368. If a person comes into a house, or is in it, and disturbs the peace of the family, although no assault has been committed, the master of the house may turn him out, or call a policeman to do so. Shaw V. Chairitie, 3 0. & K. 21. Except in the case of felony, and presumably of treason, the power of arrest without warrant and by private persons appears only to exist at common law where it is necessary for the preservation of the public peace; and belief that a man has committed a misdemeanor on a former occasion, will not justify his being either given or taken into custody without warrant. Matthews v. Biddulph, 4 Scott, N. E. 64 ; 11 L. J., 13 M. 0. ; Bums' Justice, tit. "Arrest." "The general understanding," observes Tindal, Digitized by Microsoft® 112 APPENDIX I. 0. J., in. Matthews v. Biddulph, supra, " is un- doubtedly that a private individual cannot justify an arrest for a mere misdemeanour without warrant ;" and in Fox v. Gaunt (3 B. & Ad. 800), Lord Ten- terden (referring to certain passages cited from Hawkins and Hale in justification of an arrest for a misdemeanor after the fact) said, "the instances in Hawkins are where the party is caught in the fact .... the instances in Hale of arrest after the fact is over relate to felony." 8o the late Mr. Chitty said, "it seems that no person can in general he taken into custody without warrant for a mere misdemeanor unattended with violence, or perjury, or hhel." Chitty's Criminal Law, vol. i., p. 15. But this must be understood, as appears from Lord Tenterden's reference to "the instances in Hawkins," as excluding those cases where a party is actually caught in the act of committing a misdemeanor. In such a case anyone may arrest him. Hollyday v. Oxenbridge, Cro. Car. 324 (234). Li that ease it was ruled that a common cheat might be arrested by a person whom he had cheated at cards while still in the house where he had committed the offence ; and see Willow's case, infra, and Fox v. Gaunt, supra. More recently, also, it was said by Oockburn, C. J., in Griffiths v. Taylor, 48 L. J., App. (C. P.) 152, "Where anyone is found actually committing an offence it is not necessary to wait till a warrant can be obtained if the arrest is effected actually on the spot, and the prisoner is forthwith brought before a magistrate. It seems to be sometimes supposed that the right of private persons to arrest an offender com- mitting a misdemeanor is limited to those misde- meanors which partake of the nature of a breach of the peace. But the more correct view appears to be that, excepting such crimes as consist in mere omission or nonfeasance, as, e.g., neglecting to provide one's family with food (cf . Horley v. Rogers, 2 E. & E. 674), there is no distinction between one misdemeanor and another. In fact all misdemeanors, with the possible exception of perjury and forgery, are breaches of the king's or queen's peace, as appears from the old forms of indictments. All indictments ouffht formally to conclude contra paccm, except per- Digitized by Microsoft® '■ ' ^ ^ ARREST. 113 haps those for perjury and forgery, and except those for nonfeasance, as omitting to obey an order of justices for the support of a bastard child, or pay- ment of a poor rate (1 Yentr. 108, 111 {Anon.)), or neglect by a constable of a duty imposed on him by the common law. S. v. Wyatt, 1 Salk. 381 ; cf . Arch- bold's Or. PI. tit. "Indictment" (conclusion), p. 68, 11th ed.; cf. also Hale, P. 0. ii., 188. It may, perhaps, be arguable that an arrest should not be made without warrant in the cases of perjury and forgery even in the act, for it has been held that the quarter sessions could not try those offences, as not being within their commission, which is to try offences contra pacem. R. v. Higgins, 2 East, 14; R. V. ^;«op, 4 Mod. 51; 2 Hawk. P. C. 0. viii., s. 38. But with these two exceptions (if with these) it seems to follow, from the authorities above quoted, that in case of misdemeanors which are actual, a constable, or even a private person, may arrest the offender in the act. Fox v. Gaunt, 3 B. & Ad. 798. In fact, in case of the misdemeanor which consists in an attempt to commit felony, there is an actual duty laid on aU who witness it to arrest the offender. 1 Hawk. P. 0. 59, 2 ; 2 Hawk. P. 0. 12, 1 ; Year Book, 9 Edw. IV., fol. 26, pi. 36. And in Willow^s case. Latch, 173, it was held that anyone might arrest a night walker. See Year Book, 4 Hen. 7, fol. 18, pi. 12. And, if a man keep the company of a notorious thief, whereby he is sus- pected, &c., it is a good cause and warrant in law to arrest him (Coke, 2 Inst. 52 ; Year Book, 26 Edw. III. 17a, pi. 8) ; although it has been held that a police constable is not justified in pushing and ordering off a person who nierely happens to be conversing in a crowd with a reputed thief. Stocken v. Carter, 4 0. & P. 477; and cf. 24 & 25 Vict. o. 96, s. 103; and Griffith V. Taylor, post, p. 137. Suffering pursuit upon hue and cry has been given as a reasonable ground of arrest. See Woolrych, Criminal Law, 1, 9; 2 Hawk, c. 12, ss. 9, 10, 14. Aud it is an indictable offence to refuse when called upon by a constable for assistance in resisting an assault made upon him by prisoners in his custody on a charge of felony. R. v. Sherloclz, 35 L. J., ]\1. C. 92. See also a very learned paper G • Digitized by Microsoft® ^ 114 APPENDIX I. 10 Geo. 4, c. 44, s. 7. 2 & 3 Tic. c. 47, s. 54. Metro- polis. Public an- noyance. by Mr. Greaves, in tlie "Law Times," June 25, 1868, wliere several of the above authorities are cited. By the 10 Geo. 4, c. 44, s. 7, though partly repealed, it is still lawful for any man belonging to the metro- politan police force, during the time of his being on duty, to apprehend all loose, idle, and disorderly persons whom he shall find disturbing the public peace, or whom he shall have just cause to suspect of any evil designs. It seem that this section, even when more comprehensive, would not authorize the molesting a person who is merely found talking to a thief (see Stocken v. Carter, 4 0. & P. 477, supra) ; but though a person may have been illegally arrested, a policeman on duty at a London police-station is justified, under 2 & 3 Vict. c. 47, s. 69, or 2 & 3 Vict, c. xciv, s. 60, in detaining him when brought there. Bowditch V. Fosherry, 19 L. J., Ex. 339. The powers given by 10 Geo. 4, c. 44, ss. 7 — 9, are now greatly enlarged by 2 & 3 Vic. c. 47, s. 64, which authorizes the arrest without warrant by any constable of the metropolitan police force (provided the offence is committed within view of the said constable and in some thoroughfare or public place within the metro- politan police district) of 1 . Every person who shall, to the annoyance of the inhabitants or passengers, expose for show or sale (except in a market lawfully appointed for that purpose), or feed or fodder any horse or other animal, or show any caravan con- taining any animal, or any other show or public entertainment, or shoe, bleed, or farry any horse or animal (except in cases of acci- dent), or clean, dress, exercise, train, or break any horse or animal, or clean, make, or repair any part of any cart or carriage, except in cases of accident where repair on the spot is necessary. 2. Every person who shall turn loose any horse or cattle, or suffer to be at large any unmuzzled ferocious dog, or set on or urge any dog or other animal to Attack, worry, or put in fear any person, horse, or other animal. 3. Every person who by negligence or ill-usage in Digitized by Microsoft® ARREST. 115 driving cattle shall cause any miscldef to be done by sucb cattle, or who shall in anywise misbehave himself in the driving, care; or management of such cattle, and also every person not being hired or employed to drive such cattle, who shaU wantonly and unlawfully pelt, drive, or hunt any such cattle. 4. Every person having the care of any cart or carriage who shaU. ride on any part thereof, on the shafts, or on any horse or other animal drawing the same, without having and holding the reins, or who shall be at such a distance from such cart or carriage as not to have the complete control over every horse or other animal drawing the same. 5. Every person who shall ride or drive furiously, or so as to endanger the life or limb of any person, or to the common danger of the pas- sengers in any thoroughfare. 6. Every person who shall cause any cart, public carriage, sledge, truck or barrow, with or without horses, to stand longer than may be necessary for loading or unloading, or for taking up or setting down passengers, except hackney carriages standing for hire in any place not forbidden by law, or who by means of any cart, carriage, sledge, truck or barrow, or any horse or other animal, shall wilfully interrupt any public crossing or wilfully cause any obstruction in any thoroughfare. 7. Every person who shaU lead or ride any horse or other animal, or draw or drive any cart or carriage, sledge, truck or barrow upon any footway or curbstone, or fasten any horse or other animal so that it can stand across or upon any footway. 8. Every person who shall roU or carry any cask, tub, hoop or wheel, or any ladder, plank, pole, showboard or placard, upon any footway, ex- cept for the purpose of loading or unloading any cart or carriage, or of crossing the foot- way. 9. Every person who, after being made acquainted Digitize fiby Microsoft® lie APPENDIX I. with, the regulations or directioiiB -which, the commissioners of police shall have made for regulating the route of horses, carts, carriages, and persons during the time of divine service, and for preventing obstructions during public processions and other occasions hereinbefore specified, shall wilfully disregard or not con- form himself thereunto. 10. Every person who, without the consent of the owner or occupier, shall affix any posting bill or other paper against or upon any building, wall, fence or pale, or write upon, soil, deface or mark any such building, wall, fence or pale with chalk or paint, or in any other way whatsoever, or wilfully break, destroy or damage any part of any such, building, wall, fence or pale, or any fixture or appendage thereunto, or any tree, shrub or seat in any public walk, park or garden. 11. Every common prostitute or nightwalker, loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation, to the annoyance of the inhabi- tants or passengers. 12. Every person who shall sell or distribute or ofller for sale or distribution, or exhibit to public view, any profane, indecent or obscene book, paper, print, drawing, painting or re- presentation, or sing any profane, indecent or obscene song or ballad, or write or draw any indecent or obscene word, figure or represen- tation, or use any profane, indecent or obscene language, to the annoyance of the inhabitants or passengers. 13. Every person who shall use any threatening, abusive or insulting words or behaviour, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occa- sioned. 14. Every person, except the guards and postmen belonging to her Majesty's post ofiice in the performance of their duty, who shaU. blow any horn or use any other noisy instrument, for Digitized by Microsoft® ARREST. 117 the purpose of caUing persons together, or of announcing any show or entertainment, or for the purpose of hawking, selling, distributing or collecting any article whatsoever, or of obtainiag money or ahns. 15. Every person who shall wantonly discharge any fire-arm, or throw or discharge any stone or other missile, to the damage or danger of any person, or make any bonfire, or throw or set fire to any firework. 16. Every person who shaU wiLEully and wantonly disturb any inhabitant by pulling or ringing any door-beE. or knocking at any door without lawful excuse, or who shall wilfully or unlaw- fully extinguish the light of any lamp. (Of. infra, Simmons v. MiUingen, and 2 & 3 Vic. 2 & 3 Vie. 0. 47, s. 66.) c. 47, s. 66. 17. Every person who shall fly any kite or play at any game to the annoyance of the inhabitants or passengers, or who shall make or use any slide upon ice or snow in any street or other thoroughfare, to the common danger of the passengers. "With paragraphs 4 — 7 may be collated 3 Greo. 4, 3 Geo. 4, c. 126, s. 132, by which, whether in the metropolis or <=■ 126, elsewhere, the driver of a waggon, &c., on any turn- ^' pike road, offending against 3 Geo. 4, c. 126, by riding on his waggon, &c., Avithout anyone on foot or on horseback to guide it, or damaging by negligence or Avllful misbehaviour any person or carriage on the road, improperly quitting the road, driving without the owner's name painted on the carriage, not keeping to the near side, interrupting the passage, &c., may, by sect. 132, be apprehended by any person who sees the offence committed. And the 5 & 6 Will. 4, c. 50, 5 & 6 Will, s. 78, contains a similar provision with regard to high- *> %¥^!jn ways; and by sect. 79 of that act, offenders against ^^- ' > ' • it whose name is unknown may be arrested without warrant by the surveyor, assistant or district surveyor, any person acting under his authority, and such other person as he calls to his aid, or any other person wit- nessing the offence. Also by 10 & 11 Vict. c. 89 1" fell Vic. (Towns Police Act), s. 28, the provisions of the ^g»y>ss-l5, Digitized by Microsoft® 118 APPENDIX I. Metropolitan Police Act, as to public annoyances, are substantially repeated; and by sect. 15, offenders against the act may be arrested without warrant by constables appointed under the act, the owner of any property on or with respect to which the offence -is committed, or his servant, or any person authorized by him. 6 & 7 Vic. See also 6 & 7 Vic. c. 86, s. 27, by which (within c. 86, s. 27. ^j^Q metropolitan district) every driver or conductor Metro- authorized to act as driver of any hackney carriage, or driver or conductor of any metropolitan stage carriage, who suffers any other person to act as such driver or conductor without the consent of the proprietor, and every person, whether licensed or not, who acts as driver or conductor of any such carriage without the consent of the proprietor, shall forfeit 40s.; and every driv.er or conductor charged with such offence, who, when required by a justice so to do, does not truly make known the name and place of abode .of the person so suffered by him to act as driver or conductor without consent of the proprietor, and the number of the ticket of such person ({f licensed), shaU. be liable to a further penalty of 40s.; and it shall be lawful for any police constable, without any warrant for that purpose, to take into custody any person unlawfully acting as driver or conductor or as waterman, and to convey him before any justice, to be dealt with accord- ing to law, and, if necessary, to take' charge of the carriage and every horse in charge of such person, and to deposit the same in some place of safe custody untU the same can be applied for by the proprietor. By the second of the Metropolitan PoHce Acts 2 & 3 Vic. (2 & 3 Vic. c. 47)— s8 *62— 69 &eot. 62. Every person who, by committiQg any offence herein forbidden -nithin the said district, shall have caused any hurt or damage to any person or property, may be apprehended, with or without any warrant, by any constable, and if he shall not, upon demand, make amends for such hurt or damage to the satisfaction of the person aggrieved, he shaU. be detained by the constable in order to be taken before a magistrate, and upon conviction shaU pay such a sum, not more than 10^., as shaU appear to the magis- Digitized by Microsoft® ARREST. , 119 trate before whom he shall be convicted to be reason- able amends to the person aggrieved, besides any penalty to -which he may be Sable for the offence, and the evidence of the person aggrieved shall be admitted in proof of the offence : Provided always, that if the person aggrieved shall have been the only witness examined in proof of the offence, the simi ordered as amends shall be paid and applied in the same manner as a penalty. Sect. 63. It shall be lawful for any constable be- longing to the metropolitan police district, and for all persons whom he shall call to his assistance, to take into custody, without a warrant, any person who within view of any such constable shall offend in any manner against this act, and whose name and residence shall be unknown to such constable, and cannot be ascertained by such constable. Sect. 64. It shall be lawful for any constable be- longing to the metropolitan police to take into custody without a warrant all loose, idle and disorderly persons whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed or being about to commit any felony, mis- demeanor or breach of the peace, and all persons whom he shall find between sunset and the hour of eight in the morning, lying or loitering in any high- way, yard or other place, and not giving a satisfactory account of themselves. But in this section it appears that the disjunctive particle "or" would be better read "and," because in Boioditch v. Balchin, 5 Ex. 378, a person arrested on a charge of perjury, under the 2 & 3 Vic. c. xciv., s. 18 2 & 3 Vic. — a clause almost verbally identical with the 2 & 3 «• ^^iv, Vic. c. 47, s. 64 — obtained a verdict for trespass, on ^ScS Vic the ground that the words, "whom he shall have c. 47, s. 64. good cause to suspect," were controlled and qualified by the words, "loose, idle and disorderly." Sect. 65. It shall be lawful for any constable be- longing to the metropolitan police force to take into custody, without warrant, any person who within the limits of the metropolitan police district shall be charged by any other person with conimitting any aggravated assault, in every case in which such con- Digitized by Microsoft® 120 APPENDIX I. stable shall have good reason to believe that such assault has been committed, although not within view of such constable, and that by reason of the repent commission of the offence a warrant could not have been obtained for the apprehension of the offender. Sect. 66. Any person found committing any offence punishable either upon indictment or as a misde- meanor, upon summary conviction, by virtue of this act, may be taken into custody without a warrant by any constable, or may be apprehended by the owner of the property on or with respect to which the offence shall be committed, or by his servant or any person authorized by hina, and may be detained until he can be delivered into the custody of a constable, to be dealt with according to law; and every such constable may also stop, search and detain any vessel, boat, cart or carriage in or upon which there shall be reason to suspect that anytlung stolen or unlawfully obtained may be found, and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained; and any person to whom any property shall be offered to be sold, pawned or delivered, if he shall have reason- able cause to suspect that any such offence has been committed with respect to such property, or that the same or any part thereof has been stolen or otherwise unlawfully obtained, is hereby authorized, and if in his power is required, to apprehend and detain, and as soon as may be to deliver such offender into the custody of a constable, together with such property, to be dealt with according to law. The words "found committing" in this section are not equivalent to the words "in view of the constable" in sect. 54, supra ; and the 66th section is meant to apply only to persons taken hifiagrante delicto. It is not sufficient that they be taken a little time after the offence. Simmons v. MiUingcn, 15 L. J., C. P. 102. "What is an immediate arrest is a question for the jury if an action be subsequently brought. Griffith V. Taylor, 48 L. J., C. P. (App.) 152. 2 & 3 Vic. Further, by 2 & 3 Vic. c. 47, ss. 67-69 :— ss*67— 69 ^®*^*' ^^' ■'"* ^^^^^ ^'^ lawful for any constable to stop and detain, untU due inquiry can be made, all Digitized by Microsoft® ARREST. 121 carts and carriages wHcli he diaU find employed in removing the furniture of any house or lodging be- tween the hours of eight in the evening and six in the following morning, or whenever the constable shall have good grounds for believing that such removal is made for the purpose of evading the payment of rent. Sect. 68. Whenever any person having charge of any horse, cart, carriage, or boat, or any other animal or thing, shall be taken into the custody of any con- stable under the provisions of this act, it shall be lawful for any constable to take charge of such horse, cart, carriage, or boat, or such other animal or thing, and to deposit the same in some place of safe custody, as a security for payment of any penalty to which the person having had charge thereof may become liable, and for payment of any expenses which may have been necessarily incurred for taking charge of and keeping the same ; and it shall be lawful for any magistrate, before whom the case shall have been heard, to order such horse, cart, carriage, or boat, or such other animal or thing, to be sold, for the purpose of satis- fying such penalty and reasonable expenses, in de- fault of payment thereof, in Hke manner as if the same had been subject to be distrained, and had been distrained, for the payment of such penalty and rea- sonable expenses. Sect. 69. Every person taken into custody by any constable belonging to the metropolitan police, with- out warrant, except persons detained for the mere purpose of ascertaining their name or residence, shall be forthwith delivered into the custody of the con- stable in charge of the nearest station house, in order that such person may be secured until he can be brought before a magistrate, to be dealt with accord- ing to law, or may give bail for his appearance before a magistrate, if the constable in charge deem it prudent to take bail in the maimer hereinafter men- tioned. See supra, Bowditch v. Fosherry. By the 3rd section of 34 & 35 Tic. c. 112, any con- 34&3oVic. stable in any police district (which is by sect. 20 de- "^ 1^12^^ fined to mean in England — (1) the city of London and ' ' the liberties thereof ; (2) the metropolitan police dis- trict ; (3) elsewhere in England, any county, riding, Digitized by Microsoft® 122 APPENDIX I. part, division, or liberty of a county, borough, burgh, city, town, place, or union, or combination of places ■ maintaining a separate police force) may, if authorized so to do in writing by the chief officer of poKce of that district, without warrant take into custody any con- vict who is the holder of a licence granted under the Penal Servitude Acts, if it appears to such constable that such convict is getting his livelihood by dishonest means, and may brings him before a court of summary iurisdiction for adjudication. By sect. 7 of the same act, where any person is con- victed on indictment of a crime, and a previous con- viction is proved against him, he may, at any time within seven years immediately after the expiration of the sentence passed on him for the last of such crimes, be taken into custody by any constable with- out warrant, if such constable is authorized to do so by the chief officer of police of his district ; if on his being charged by a constable with getting his Kvelihood by dishonest means, and being brought before a court of summary jurisdiction, it appears to such court that there are reasonable grounds for believing that the person so charged is getting his livelihood by dishonest means ; or by any constable without warrant, although such constable is not specially authorized to take hrm into custody if he is found in any place, whether public or private, under such circumstances as to satisfy the court before whom he is brought that he was about to commit or to aid in the commission of any offence punishable on indictment or summary conviction, or was waiting for an opportunity to com- mit or aid in the commission of any oif ence punishable on indictment or summary conviction. If a person previously convicted and sentenced as aforesaid (sect. 3) is charged with being found in or upon any dweUinghouse, or any building, yard, or premises, being parcel of or attached to such dwelling- house, or in or upon any shop, warehouse, counting- house, or other place of business, or in any garden, orchard, pleasure ground, or nursery ground, or in any building or erection in anj^ garden, orchard, pleasure ground, or nursery ground, without being able to account to the satisfaction of the court before whom Digitized by Microsoft® AKREST. 123 he is brought for his being found on such premises, he may be arrested either by any constable, or by the owner or occupier of the property on which he is found, or by the servants of the owner or occupier, or any other person authorized by the owner or occupier, and may be detained until he can be delivered into the custody of a constable. Likewise by 27 & 28 Vic. c. 47, s. 6, any constable or police oiiicer may, without warrant, take into custody any holder of a licence under the Penal Ser- vitude Acts, 1853, 1857 and 1864, whom he may reasonably suspect of having committed any offence or of having broken any of the conditions of his licence. The provisions above cited from 10 Geo. 4, c. 44, and 2 & 3 Yic. c. 47, are, in some points, a repetition of the Vagrant Act, 6 Geo. 4, c. 83, which enacts (s. 6) : That it shall be lawful for any person what- soever to apprehend any person who shall be found offending against that act, and forthwith to take and convey him or her before some justice of the peace, to be dealt with in such manner as is hereinbefore directed, or to deliver liim or her to any constable or other peace officer of the place where he or she shall have been apprehended, to be so taken and conveyed as aforesaid; and in case any constable or other peace officer shall refuse or wilfully neglect to take such offender into his custody, and to take and convey him or her before some justice of the peace, or shall not use his best endeavours to apprehend and to convey before some justice of the peace any person that he shall find offending against this act, it shall be deemed a neglect of duty in such constable or other peace officer, and he shall on conviction be punished in such manner as is hereinafter directed. The offences enumerated in the act which justify the arrest of the offender without warrant are con- tained in the 3rd, 4th and 5th sections, which are as f oEows : — m. Be it enacted, that every person being able wholly or in part to maintain himself or herself, or his or her fanuly, by work or by other means, and wilfully refusing or neglecting so to do, by which Digitized by Microsoft® 27&28Vic. c. 47, B. 6. 5 Geo. 4, c. 83, ss. 3—6. 5 Geo. 4, c. 83, B8. 3—5. Idle and disorderly persons. 124 APPENDIX I. refusal or neglect lie or she, or any of Ms or her family whom he or she may be legally bound to maintain, shall have become chargeable to any parish, township or place ; every person returning to and becoming chargeable in any parish, township or place, from whence he or she shall have been legally removed by order of two justices of the peace, unless he or she shall produce a certificate of the churchwardens and overseers of the poor of some other parish, township or place, thereby acknowledg- ing him or her to be settled in such other parish, township or place; every petty chapman or pedlar wandering abroad and trading, without being duly licenced, or otherwise authorized by law ; every com- mon prostitute wandering in the public streets or public highways, or in any place of public resort, and behaving in a riotous or indecent manner ; and every person wandering abroad, or placing himself or herself in any public place, street, highwaj', court or passage, to beg or gather alms, or causing or pro- curing or encouraging any child or children so to do, shall be deemed an idle and disorderly person within the true intent and meaning of this act ; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by his own view, or by the confession of such offender, or by the evidence on oath of, one or more credible wit- ness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding one calendar month. Rogues and IV. And be it further enacted, that every person vagabonds, oonamitting any of the offences hereinbefore men- tioned, after having been convicted as an idle and disorderly person ; every person pretending or pro- fessing to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of his Majesty's subjects; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied build- ing, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of sub- sistence, and not giving a good account of himself or herself ; every person wilfully exposing to view, in Digitized by Microsoft® ARREST. 125 any street, road, Mghway or public place, any ob- scene print, picture or other indecent exhibition ; every person wilfully, openly, lewdly and obscenely exposing his person in any street, road or public highway, or in the view thereof, or in any place of public resort with intent to insult any female ; every person wandering abroad and endeavouring by the exposure of wounds or deformities to obtain or gather ahns ; every person going about as a gatherer or coUector of alms, or endeavouring to procure chari- table contributions of any nature or kind, under any false or fraudulent pretence ; every person running away and leaving his wife, or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable to any parish, town- ship or place ; every person playing or betting in any street, road, Idghway or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance ; every person having in his or her custody or possession any pick- lock key, crow, jack, bit or other implement, with intent feloniously to break into any dwelling-house, warehouse, coach-house, stable, or outbuilding, or being armed with any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon, or having upon him or her any instrument, with intent to commit any felonious act ; every person being found in or upon any dwelling-house, warehouse, coach-house, stable or outhouse, or in any inclosed yard, garden or area, for any unlawful purpose ; every suspected person or reputed thief, frequenting any river, canal or navi- gable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto, or any place of public resort or any avenue leading thereto, or any street, highway or place adjacent, with intent to commit felony ; and every person apprehended as an idle and disorderly person, and violently resisting any constable or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so appre- hended, shall be deemed a rogue and vagabond, within the true intent and meaning of this act ; and Digitized by Microsoft® 126 APPENDIX I. Inoorrigi- We rogues. Sect. 3. Deserting family. it shall be lawful for any jiistice of the peace to com- mit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding three calendar months ; and every such picklock key, crow, jack, bit and other implement, and every such gun, pistol, hanger, cutlass, bludgeon or other offensive weapon, and every such instrument as aforesaid, shall, by the conviction of the offender, become forfeited to the king's majesty. V. And be it further enacted, that every person breaking or escaping out of any place of legal confine- ment before the expiration of the term for which he or she shall have been committed or ordered to be con- fined by virtue of this act ; every person committing any offence against this act which shall subject him or her to be dealt with as a rogue and vagabond, such person having been at some former time adjudged so to be and duly convicted thereof ; and every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace officer so ap- prehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended, shall be deemed an incor- rigible rogue within the true intent and meaning of this act ; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there to remain untU the next general or quarter sessions of the peace ; and every such offender who shall be so committed to the house of correction, shall be there kept to hard labour during the period of his or her imprisoilment. With regard to escaping from confinement and resisting capture, see infra. To bring a person deserting a family within the third section, it appears that he or she should know that the family were likely to become chargeable. Sweeney v. Spoonri; 32 L. J., M: C. 82 ; Cox, M. C. Digitized by Microsoft® ARREST. 127 295 ; 7 L. T., N. S. 633, Q. B. TMs section, moreover, does not impose on the hustand of a wiJPe who has left him and committed adultery any obligation to maintain her, although he himself has been guilty of adultery since or even before her departure. R. v. Flinton, 1 B. & Ad. 227 ; Ooioer v. Hancock, 6 T. E. 603. But condonation might destroy his immunity. Harris v. Morris, 4 Esp. 41 ; Norton v. Fagan, 1 Bos. & P. 226. Nor is a man bound to maintain a bastard child of his "wife born before his marriage. R. v. Maude, 11 L. J., M. 0. 120. And where a husband offered to provide a house for his wife to live in with him, and offered to repay any sums advanced to her by the parish officers, and she refused to live with him, it was held that he could not be lawfully con- victed under this section, even although he had pre- viously broken a promise to allow her 12s. a week, and though she alleged ill treatment and an assault by hiTTi as a reason for her refusal. Flannagan v. Overseers of Bishopwearmouth, 27 L. J., M. C. 46. This case furnishes a strong instance of the jealousy with which personal liberty is guarded, for under another statute (31 & 32 Vict. c. 122, s. 33) it has been held that where a wife leaves her husband in consequence of ill-usag-e, justices may make an order upon him to contribute to her separate support although he offers to receive her back agaiu. Thomas v. Alsop, 39 L. J., M. C. 43. A eon- stable is not bound under sect. 6 to arrest without warrant, as "found offending" within the meaning of that section, a person charged by a relieving officer with having wilfully neglected to support his wife. Horley v. Rogers, 2 E. & E. 674; 2 L. T., N. S. 172 ; and see supra, Simmons v. Mil- lingen. From the remarks of the court in Horley v. Rogers, it seems that the power and duty to appre- hend without warrant, as created by the 6th section of the 5 G-eo. 4, e. 83, applies only to cases where the 5 Geo. 4, offence is apparent, and in course of perpetration by <=. 83, s. 6. the offender before the eyes of the constable; not where, as in the case cited, the supposed offence is dependant upon a variety of particulars upon which he could only be informed by others, and which, as Digitized by Microsoft® 138 APPENDIX I. Sect. 4. Eesisting officer. Deserting family. 11 & 12Vic. 0. 43, s. 11. 5 Geo. 4, c. 83, s. 3. in that case, migM be justified upon tlie ground of the wife's infideUty. Per Oockburn, 0. J., 2 L. T. 172. This is not inconsistent with the penalty attached to unlawful resistance by the 4th section, because that section makes an essential element in the oifenoe, the being subsequently convicted of the offence for which the prisoner is apprehended. To bring an offender against this part of the 3rd section under that part of the fourth which provides for the punishment of persons arrested as idle and disorderly and resisting, it seems from R. v. Hall, 3 Burr. 1 636 — (an information under the repealed act, 17 Geo. 2, c. 5, s. 17), — that the commitment ought to allege that the family became actually chargeable to the parish. Heape v. Heape, 1 H. & N. 478; 26 L. J. 161, Ex.; Cox, M. C. 234. Where the wife does not become chargeable till some time after he has left her, his liability under this act does not begin till then, so that it is sufficient, under the 11 & 12 Vic. c. 43, s. 11, if an information is laid within six months of the beginning of the chargeability. Reeves v. Yeates, 1 H. & N. 435; 8 Jur., N. S. 751, Ex.; Cox, M. C. 236, 295. Where a woman, having obtained an order for the admission of herself and children to the workhouse, left them with the order at the outer gate, and returned to her own house, this was held not to be a "running away" within the statute. Guardians of Cambridge Union V. Parr, 10 C. B., N. S. 99; 30 L. J. 389; Cox, M. 0. 294. And desertion of a bastard by its mother does not come within this section. R. v. Maude, 6 J. 646. Nor does desertion of her legitimate children, if she is herself deserted by her husband, and with- out means of maintaining them. Peters v. Cotcie, 2 Q. B. Div. 131; 46 L. J., N. C. 177. With regard to that part of the 3rd section which deals with persons returning and becoming chargeable to any parish, &c. from which they have been legally removed, see Mann v. Danvers, 3 B. & A. 113, where it was held that the mere confession of having returned without a certificate imposed on the defendant the burden of showing that he did not return in a state of pauperism ; but on the same occasion the court Digitized by Microsoft® AEEEST. 129 intimated that as the man, when arrested, was actually at work in the harvest field, it might, if he had chosen to state that, have been a question whether the magis- trate ought to have convicted him. In B. v. Inhabi- tants of Barham, 8 B. & C. 99, it was held that a pauper who, when ordered to be removed, was actually tenant of a house for a year at 121., and who returned the same day and paid his rent and lived in the house, had gaiued a settlement. See also R. v. Fillongley (Inhab.), 2 T. E. 708. Now, by the 34 & 35 Vic. 0. 108, s. 7, the term "idle and disorderly person" includes any pauper absconding from any casual ward, workhouse or asylum before he is entitled to leave it, refusing to be removed to any workhouse or asylum under the provisions of the act, refusing, while an inmate of any casual ward, workhouse, &c., to do the work or observe the regulations prescribed there, or vrilfuUy giving a false name or making a false statement for the purpose of obtaining relief. Any pauper committing any of these offences after having been convicted as an idle and disorderly person, or wilfully damaging his own clothes or the property of the guardians, is declared by the same section to be a "rogue and vagabond." This section does not say he may be arrested without warrant, but by sect. 8, the master, porter of the workhouse, or officer having charge of the casual ward, may apprehend without warrant any person charged with any offence therein punishable on summary conviction. In Bruce v. Gobb, 31 L. T. 98 (Q. B.), it was ruled that a travelling trader came within the 3rd section as a pedlar, even although he only bartered goods and took no money. The amount of his dealings appears to be immaterial (Bean v. Kinff, 4 B. & Aid. 517), though one act of sale is not necessarily sufficient. E. V. Little, 1 Burr. 609. See, however. Bean v. King, supra. And a lady who for charitable purposes carries about things for sale ia a basket is not within the act. Greffff V. Smith, 42 L. J., M. 0. 121. It is not neces- sary that the sale should be transacted' in person. Att.-Gen.Y. Tongue, 12 Price, 51; BeanY. King, supra. It was held in B. v. Knight, 10 B. & 0. 734, that the mere procuring of orders for goods not to be delivered G. Digitized by Microsoft® K 34 & 35 Vic. 0. 108, 8. 7. "Casuala" abscond- ing, re- fusing to work, damaging clothes, &o. 34&35Vic. c. 108, s. 8. 5 Geo. 4, c. 83, s. 3. Pedlars. 130 APPENDIX I. 34&35Vio. 0. 96, s, 3. 34 & 35 Vic. c. 96, ss. 4, 6, 13. 5 Geo. 4, c. 83, s. 3. 34 & 35 Vic. c. 96, s. 18. 29 & 30 Vic. c. 64, 3. 11. 5 Geo. 4, c. 83, s. 3. Encourag- ing chil- dren to immediately (as, e. g. by a commercial traveller) was not peddling. And tMs construction appears to be preserved in tbe Pedlars Act, 1871, -wbich (sect. 3) defines "pedlar" as meaning any hawker, pedlar, petty cbapman, tiaker, caster of metals, mender of chairs, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot, and goes from town to town or to other men's houses, carrying to seU. or exposiag for sale any goods, wares or merchandise, or procuring orders for goods or merchandise immediately to be delivered, or selling or offering for sale his skill in handicraft. Pedlars are now licensed by certificate to trade in particular districts (34 & 35 Vic. c. 96, ss. 4, 5), out- side which they are still subject to 5 Geo. 4, c. 83, s. 3, and 34 & 35 Yic. c. 96, s. 13, as they are, ia spite of any certificate, to all laws concerning idle and dis- orderly persons, rogues and vagabonds, &c. Ibid. Where a person acting as a pedlar either refuses to show his certificate, or has no certificate, or refuses to allow or prevents or attempts to prevent any such opening or inspection of his pack, box, bag, trunk or case as is authorized under the 34 & 35 Yic. c. 96, it shall be lawful for any of the persons authorized by sect. 17 (i. e. any justice of the peace, constable, person to whom such pedlar offers his goods, or person in whose private grounds or premises such pedlar is found) to demand the production of the certificate, and also for any other person acting by his order or at his request and in his aid, to apprehend such offender, and forthwith to convey or cause him to be conveyed before a justice of the peace. 34 & 35 Vic. c. 96, s. 18. By 29 & 30 Vic. c. 64, s. 11, anyone may apprehend a person hawking goods without a licence, or refusing to produce his licence. On information against a person under the 3rd section of the Vagrant Act, supra, for encouraging a. child to beg, the magistrate is justified in dis- regarding a statement made by the child that he is sixteen years of age (that being the only evidence as to age), if his appearance induces the magistrate to believe that he is a child under fourteen; the question of age being one of fact entirely for the magistrate. Digitized by Microsoft® ARKEST. 131 B. V. Visani, 15 L. T., N. S. 240. The performances of persons professing to exMbit -what are now com- monly called " spiritualist " manifestations, have been held to come -within the -words " (palmistry) or other- ■wise" in the 4th section of 5 Geo. 4, c. 83. Monck V. Hilton, 2 Ex. Div. 268; 46 L. J., M. 0. 163. That part of the 4th section which relates to inde'cent exhibitions is enlarged by the 1 & 2 Vic. c. 38, s. 2, ■which enacts that " every person who shall wilfully expose, or cause to be exposed, to public view in the ■window or other part of any shop, or other building, situate in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibi- tion, to public -^iew, shall be deemed to have exposed the same -within the intent and meaning of the 5 Geo. 4, c. 83, s. 4, and shall be liable to be proceeded against, and on conviction to be punished under the provisions of that act." It is observable that this statute (like many others which place offences ■within the operation of the Vagrant Act) does not in terms say that the offender may be arrested -without warrant, unless the phrase "proceeded against" be held to include that process. The 2 & 3 Vic. c. 47, s. 54 (par. 12), passed the year after the above act, adds the words, "Sell or distribute, or offer for sale or distribution," biit only authorizes the arrest -without warrant by a metro- politan police constable of " any person who shall 'commit' such offence -withia view of such constable." It is possible that questions might be raised as to (1) whether this section, which is not extended by 1 & 2 Vic. c. 38, s. 2, included the exhibition of pictures in a shop -window, especially as the concluding words of the 12th paragraph, i.e., "to the annoyance of the inhabitants or passengers," and the word " commit," at the end of the section, seem rather to point to the actual doing of something in the street ; (2) whether the words of the 1 & 2 Vic. c. 38, s. 2, which certainly cover the whole offence, authorize the arrest of the offender without warrant; and (3) whether in any case a constable would be justified in arresting a man in his o-wn shop under either statute. With regard to the phrase "public place," in D/g/fge3 by Microsoft® Sect. 4 and 1 & 2 Yio. c. 38, s. 2. Indecent exhibi- tions. 2 & 3 Vic. c. 47, s. 54. "Offering for sale" indecent prints, &o. 1 & 2 Vic. c. 38, s. 2. 1 & 2 Vic. 0. 38, s. 2. 132 APPENDIX I. 5 Geo. i, 0. 83, B. 4. Public place. 5 Geo. 4, c. 83. Procuring charitalDle contribu- tions by false pre- tences. 5 Geo. 4, c. 83, a. 4. Playing, betting, &c. 5 Geo. 4, c. 83, s. 4, it maybe noted that an omnibus passing along a Hghway is a sufficiently "public place " to support an indictment at common law {R. V. Holmes, Dears. & P., C. C. E. 207) ; though an inclosed urinal, to which however the public have access, was decided not to be so {E. v. Orchad, 3 Cox, 248), that is unless the act is observed from the out- side {R. V. Harris, 40 L. J., M. C. 67), [qualifying the effect of R. v. Orchad,'] and by more than one person {R. v. Webb, 1 Den. 338), though the number of observers is perhaps chiefly relevant to the ques- tion of pubHo nuisance. Ibid. A roof at the back of a house, visible from the back windows of other houses, has been held so far public that indecent exposure thereon constitutes a common nuisance. R. V. Thollman, 33 L. J., M. C. 68; Cox, M. 0. 75. And so of a part of the sea beach distiactly visible from inhabited houses. R. v. Crxviiden, 2 Camp. 89. kixA. lA. post, pp. 135, 136, and note. The part of 5 Geo. 4, c. 83, s. 4, referring to the gathering of alms, &c. by false pretences, does not apply where, as in R. v. Coonagh, 1 Dowl. Pr. Cas., N. S. 546, the commitment only sets forth that de- fendant " did go about and endeavour to procure charitable contributions under a false pretence of being able to abstain from food for six months," which contributions might, according to WUhams, J., be paid " for the gratification of curiosity." 5 Geo. 4, c. 83, s. 4. It does not appear that gaming in a railway car- riage is gaming within this statute, unless the car- riage is at that time travelling along the highway for the conveyance of passengers. R. v. Freestone, 25 L. J., N. S., M. C. 121. And qiccere, whether even if the carriage were so travelling, the offence would come within the 5 Geo. 4, c. 83, s. 4. Ibid. See, however, R. V. Holmes, Dears. & P., 0. C. E. 207 (with refe- rence to indecent exposure), supra. And the Thames has been held to be a highway within the meaning of the clause against gambling. Ex parte Grant, 29 L. T., Q. B. 261; Cox, M. C. 71. It may perhaps stUl be doubted whether an inclosed ground, to which per- sons are admitted by payment, is a " public place," Digitized by Microsoft® ARREST. 133 even since the Vagrant Act Amendment Act, 1873 (36 & 37 Vic. c. 38, s. 3). In Hirst v. Molesbury, 40 L. J., M. C. 76, wliich-was decided underthe repealed Vagrant Act Amendment Act, 1868 (31 & 32 Vic. c. 52), the court appeared to entertain some doubts upon tlds question ; and the only difference made in this par- ticular by the later Act is, that the words " in any open place," are substituted for the words "ia anyplace," which seems rather to contract than to enlarge the sense of the word "place." Semhle, that to constitute an unlawful game, money or something of value must be at stake. R. v. Ashton, 22 L. J., M. 0. 1. By 36 & 37 Vic. c. 38 (supra), s. 3, every person playing or betting by way of wagering or gaming in any street, road, highway or other open and public place, or in any open place to which the pubhc have or are permitted to have access, at or with any table or instrument of gaming, or any coin, card, token or . other article used as an instrument or means of such wagering or gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond within the true intent and meaning of 5 Geo. 4, c. 83, s. 4, and may be convicted and punished under the provisions of that act. It appears that this enact- ment has brought within the Vagrant Act the act of playing at "pitch and toss" for money with money, which, in the case of Watson v. Martin, 34 L. J., M. 0. 50; Cox, M. 0. 71, had been de- cided not to be an "instrument of gaming." Cards, however, have been held to be so. Hx parte Grant, 29 L. T., a B. 266; Cox, M. C. 71. Money deposited on a bet at a race has been held under 31 & 32 Vic. c. 52 (superseded by 36 & 37 Vic. c. 38, but nearly identical with it), not to be an instrument of gaming. Hirst V. Molesbury, 40 L. J., M. 0. 76 ; 23 L. T., N. 8. 555. A mechanical contrivance for mutual betting upon a horse-race is, however, an "instrument" within the statute. Tollett v. Thomas, 40 L. J., M. C. 209. As in the case of 1 & 2 Vic. c. 38, s. 2 {supra), though both 31 & 32 Vic. c. 52, and 36 & 37 Vic. c. 38, make the offender liable to be convicted and punished under the provisions of 5 Geo. 4, c. 83, Digitized by Microsoft® 36&37Vio. c. 38, s. 3. 31 & 32 Vic. 0.52. Gaming. 36&37Vic. 0. 38, s. 3. 5 Geo. 4, c. 83, s. i. 36 & 37 Vic. c. 38. 1 & 2 Vic. c. 38, 3. 2. 134 APPENDIX I. 1 & 2 Vio. c. 38, s. 2. 5 Geo. 4, c. 83, s. 4. Having of house- breakiag imple- ments. 24 & 25 Vio. c. 96, s. 58. Disguise. 5 Geo. 4, c. 83, s. 4. Being found in any dwell- ing-house, &c. neither of them speak of his heiag apprehended imder that act, i. e. without warrant. There is, how- ever, a slight difference between the two cases ; for whereas the 1 & 2 Vio. c. 38, s. 2, says that the offender shall be deemed to have committed the offence within the intent and meaning of 5 Geo. 4, c. 83, the two Vagrant Act Amendment Acts of 1868 and 1873, both say that he shall "be deemed a 'rogue and vagabond' within the true intent and meaning of the recited act," so that we might per- haps safely take for granted that he might be arrested as a rogue and vagabond, if the omission of any dis- tinct provision to this effect had not been made con- spicuous by the addition of the words, " and as such may be convicted and punished," though added, per- haps, only ex abundanti cauteld. To justify arrest im.der the 4th section, for being in possession of housebreaking implements, or goiug armed vrith an unlawful purpose, the prisoner must have the implements upon him at the time of his arrest. R. v. Brown, 8 T. E.. 76. Any instrument which from its nature is capable of being used for housebreaking, though ordinarily used for lawful purposes, e. g. a house door key or a pair of pincers, is an implement of housebreaking sufficiently to support an indictment under the 24 & 25 Vic. c. 96, s. 58 ; R. V. Oldham, 2 D. 472 ; 3 C. & K. 250 ; 21 L. J., M. C. 134. Ml-. Snowden, ia his " Constables' Guide," p. 84 (6th ed.), mentions going with the face blackened at night by way of disguise with intent to commit, &c., as a ground of apprehension without warrant. The "unlawful purpose" described by the 4th section as constituting a ground of arrest, if a person is found in a dwelling-house, &c., must be one forbidden by the law, and not merely immoral. Hoyes v. Stephenson, 9 W. E. 53. In Kirkin v. Jenkins, 32 L. J. 184 (Q. B.) ; Cos, M. C. 295, where it was found that the person arrested was in the house of another man for the purpose of joining with that man's servants in con- suming his provisions without his consent, but the information charged that he was in the dwelling- house for the purpose of "feloniously stealing," &c., and the justices did not find that (though, semble, Digitized by Microsoft® AEEEST. 135 that they migM have done so), a coiLviction under the 5 Geo. 4, 0. 83, s. 4, was held bad. It is sufficient under this clause if the person arrested is seen in the d-welling-house, though he gets out of it and conceals himself elsewhere, and is arrested upon fresh pursuit, provided that the other conditions of the clause are satisfied ; nor is it necessary that he should have at the time of his arrest a contmuiug purpose to commit the felony ; and if the circumstances are such that he must know the cause of his apprehension, resistance on his part 'will he as illegal as though he had heen expressly informed. M. v. Howarth, 1 Moody, 0. 0. 207. As regards suspected persons frequenting rivers, canals, docks, &c., see R. v. Brown, 17 Q. B. 833. It appears, from the concurrence of the whole court in that case, that the defendant need not be frequenting the highway, &o. with intent to commit felony there; but on the meaning of the words " street, highway, or avenue leading thereto," there has been some doubt. In R. V. Broivn, supra, they were held, by a majority of the court, to mean any street, highway or place, adjacent to a street or highway ; and in Ex parte Cross, 26 L. J., N. S., M. C. 28, a commitment des- scribing and using the words " a public thoroughfare and one of the places of pubho resort," was held sufficient; but in R. v. Jones, 7 Ex., the language of the act was construed as meaning a street, highway or place adjacent to a place of public resort. In Re Tinson, L. E., 5 Ex. 257, the committal of a man " as a rogue and vagabond, for that he being a sus- pected person did frequent a certain pubUe highway, &c. with intent to commit a felony," was held bad for not showing that the highway led to or adjoined any river, canal, &c., or that it was in itself a place of public resort. This part of the question is now, in some respects, governed by the 34 & 35 Vic. c. 112, s. 16, which, after reciting that part of 5 Geo. 4, c. 83, s. 4, cited immediately above, goes on to say, "whereas doubts are entertained as to the construc- tion of the said provision as to the nature of the evi- dence required to prove the intent to commit a felony : be it enacted, firstly, that the said section shall be 5 Geo. 4, c. 83, s. 4. Suspected persons frequent- ing rivers, &c. Places of public re- sort 34 & 35 Vie. c.ll2,s. 15. 5 Geo. 4, 0. 83, s. 4. Digitized by Microsoft® 136 APPENDIX I. construed as if instead of tlie words ' highway or place adjacent,' there were inserted the words ' or any highway or any place adjacent to a street or high- way ;'* and, secondly, that, in proving the intent to commit a felony it shaU not he necessary to show that the person suspected was guUty of any particular act or acts tending to show his purpose or intent, and he may he convicted if, from the circumstances of the case, and from his known character, as proved to the justice of the peace or court hef ore whom or which he is brought, it appears to such justice or court that his intent was to commit a felony." Whether this enactment applies to diminish the evidence upon which a person may be apprehended without war- rant, may, perhaps, be doubted, as the recital does not exactly follow the whole terms of the 5 Geo. 4, c. 83, but says only "whereas, &c., it is, among other things, provided that every suspected person, &c., frequenting, &e. shall be deemed a rogue and vaga- bond, and may be apprehended and committed ;" but does not say that he may he apprehended as pro- 5 Geo. 4, vided by the 6th section of 5 Geo. 4, c. 83, and, in- 0. 83, s. 6. deed, does not refer to the said 6th section in any way. A sale by auction, called by public placards, and held in a house and garden in and adjoining a pubHo street, to which sale the pubHo have free access, and where a large number of persons are assembled, is a place of public resort within the meaning of the 4th 5 Geo. 4, section of the 5 Geo. 4, c. 83, so that a suspected person 0. 83, s. 4. jjj^g^y |)g apprehended in such a place without warrant. Sewell V. Taylor, 7 C. B., N. S. 160; 1 L. T., N. S. 37 (0. B.); Cpx, M. 0. 294. And so apparently of a railway station platform. Re Davis, 26 L. J. 392 3&4Vic. (Ex.); 2 H. &N. 149; Cox, M. C. 294. Power is also "• ^' .„ given by the Canals and Elvers Act to search and apprehend persons suspected of oflPences against it. By sect. 9 of that statute, every constable having just cause to suspect that any felony, or any other offence * "It is to be observed that the expression ' place of public resort ' assumes a very different meaning when coupled with 'roads and streets,' from that -which it would have if the accompanying expression was 'houses.'" Maxwell, Inter- pretation of Statutes, p. 293. Digitized by Microsoft® AKREST. 137 against the act, has heen, or is about to be, committed in or on board of any boat or other vessel lying in any sneh canal or river, or any lock or dock thereunto belonging, may enter therein at aU times,, as well by night as by day, and take all necessary measures for the prevention or detection of aU such felonies or other offences, and tal^e into custody all persons sus- pected of being concerned in the same, and also take charge of all property so suspected to be stolen or embezzled. By sect. 10, any constable may take into custody, -without a warrant, any loose, idle and dis- orderly person whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed, or being about to com- mit, any felony, misdemeanor or breach of the peace, or other offence against the act, and every person whom he shall find between sunset and the hour of eight in the morning, lying or loitering in or upon any towing path, or in or upon any wharf, bridge, railway, quay, landing place, lock, dock, or upon the bank of any such canal or river, and not giving a satisfactory account of himself. By sect. 11, any person found committing any offence punishable upon summary conviction may be taken into custody, without a warrant, by any constable, or may be apprehended by the owner of the property with respect to which the offence shall be committed, or by his servant or any person authorized by him, and may be detained untH he can be delivered into the custody of aconstable, to be dealt with according to law. Any constable may also stop, search and detain any vessel, boat, cart or carriage in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found, and also any person who may be rea- sonably suspected of having or conveying in_ any manner anything stolen or unlawfully obtaiued. And, by sect. 12, any person to whom any property shall be offered to be sold, pawned or delivered, if he shall have reasonable, cause to suspect that any such offence has been committed with respect to such pro- perty, or that the same or any part thereof has been stolen or unlawfully obtained, is authorized, and, if in his power, is required, to apprehend and detain. Digitized by Microsoft® 138 APPENDIX I. Offences against piety, morality, &c. 18 & 19Vic. c. 81. 23 & 24 Tic. c. 32. 1 Mary, Bess. 2, c. 3. Profane swearing. 19 Geo. 2, c. 21, s. 3. Cruelty. 12 & 13 Vic. 0. 92, s.'13. Offences against the person — loitering at night. 24 & 25 Vic. c.lOO.s. 66. and as soon, as may be to deliver sucli offender into the custody of a constable, together -with sucIl pro- perty, to be dealt with according to law. The remaining cases in which arrest without war- rant may be effected are principally as follows — pp. 138—146, infra. Making a disturbance in any church, chapel or churchyard, or in any place of religious worship duly certified under 18 & 19 Vic. c. 81; 23 & 24 Vic. c. 32, ss. 2, 3. See also 1 Mary, sess. 2, c. 3, ss. 1 — 4. Profane swearing in the presence of any constable. 19 Geo. 2, 0. 21, s. 8. In case of cruelty to animals, a constable may, without warrant, arrest the offender for any such offence committed in his view, or upon the complaint and information of any person who declares his or her name and residence. 12 & 13 Vic. c. 92, s. 13. But in the latter case it seems that the constable shoidd do his best to form a judgment of the case, either by inquiring into the particulars, or by seeing the injured animal. Hopldns v. Crowe, 7 C. & P. 373. This case, however, arose ujDon the repealed act, 5 & 6 WOl. 4, c. 59, s. 9, which authorized the interference of the officer, not on the "coTOpZoi'wiararf information" of a third person, but on the "information" of a third person. By 24 & 25 Vic. c. 100, s. 66, any constable or peace officer may take into custody, without a warrant, any person whom he shall find lying or loitering in any highway, yard or other j)lace during the night, and whom he shall have good cause to suspect of having committed or being about to commit any felony in this act mentioned, and shall take such person as soon as reasonably may be before a justice, to be dealt with according to law. " The night" is a phrase which has been variously understood at differenttimesandfordifferent purposes. The night-time at common law was anciently ac- counted to begin at sunset and end at sunrise, though the better opinion was, that if there were daylight enough left or begun to discern a man's face, burglary could not be committed. Broom, Com. iv. 271; 3 Inst. 63; Hnlo, P. C. 350. ■ Digitized by Microsoft® ARREST. 139 For the purposes of rdgM poacliiiig, it is defined hj 9 Geo. 4, c. 69, s. 12, to be from tlie expiration of the first hour after sunset until the beginning of the last- hour before sunrise. In case of burglary and other crimes included under the Larceny Act, " the night shaU. be deemed to com- mence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day." 24 & 25 Vic. c. 96, s. 1. But in the 24 & 25 Vic. c. 100 (Offences against the Person Act), there is no definition of the word, and the reason given by Mr. Davis (Or. L. 283) is that no one of the acts consohdated therein contains any such definition. Greaves, Oriminal Law Oonsolidation Acts (2nd ed.), p. 88. Any person found committing any offence punish- able under the 24 & 25 Vic. c. 96, on indictment or on summary conviction (except the offence of angling in the daytune), may be unmediately apprehended by any person without warrant (24 & 25 Vic. c. 96, s. 103), and any person loitering at night (see supra) in any highway, yard, &c., and suspected on good cause by the constable of having committed or being about to commit any felony against the said act, may be arrested by the said constable without warrant. 24 & 25 Vic. c. 96, s. 104. A bond fide belief is suflB.eient to protect the constable, although the grounds may be too sUght, or at least to entitle him to notice of action under 24 & 25 Vic. c. 99, ss. 31, 33. Herman v. Seneschal, 32 L. J., 0. P. 43. But where a person was alleged to have obtained goods by false pretences at 1 p.m., and was given into custody at 10 p.m., it was held that he was not arrested in pursuance of the statute 24 & 25 Vic. c. 96, 8. 103, and that he could not reasonably be supiDOsed to be so arrested. Downing v. Capel, L. E., 2 of P. 461 ; 36 L. J. 272 (0. P.); Oox, M. 0. 366. "What is an "immediate" apprehension within this statute is a question for the jury. E.g., it is a question for a jury whether persons arrested in London by direction of a telegram sent from Eeading, immediately after their train had started and after the discovery of a supposed larceny, are " imme- Digitized by Microsoft® 9 Geo. 4, c. 69, s. 12. 24&25Vio. c. 96, s. 1. 24 & 25 Vic. c. 100. Offences against property. 24 & 25 Vic. 0. 96, s. 103. 24&2oVio. c. 96, s. 104. 140 APPENDIX I. Game. 9 Geo. 4, 0. 69, BS. 1, 1 & 2 Will. 4, 0. 32, 8. 31. 24&2.3Vio. c. 96, s. 103. Unlawful pawning. 35 & 36 Vic. 0. 93, a. 34. diately" apprehended or not. Griffiths. Taylor, 41 J. P. No. 22, p. 340; L. E., 2 0. P. Div. 194; 46 . L. J., C. P. 152. -SfewiJ/e, that the words "found committing " ■would be satisfied by a honA fide belief that the person arrested was "found committing" the offence. Ihid. Persons unlawfully taking or destroying game by night may be arrested by the owner or occupier, the lord of the manor, or any person having the right of free warren or chase there, their servants or any person assisting them. 9 Geo. 4, o. 69, ss. 1, 2. Also any person trespassing in pursmt of game, and being required by any person having the right of sporting on the land, the occupier, his servant, or any one authorized by them, both to quit the land and to tell his name and address, and refusing to tell them with sufficient minuteness, or vdlfully continuing on or returning to the same land, may be arrested at once by any of the persons named or any one authorized by any of them. 1 & 2 Will. 4, c. 32, s. 31 ; R. v. Long, 7 C. & P. 314. And there may be a trespass under the statute where the trespasser remains in a highway and shoots at a bird crossing, at all events if he had previously sent his dogs on the land and started the game out of it. R. v. Pratt, 24 L. J., M. 0. 113.* See also 24 & 25 Vic. c. 96, s. 103, supra. Under the new Pawnbrokers Act, a pawnbroker may arrest and deliver to a constable any person offering an article in pledge, and refusing or being unable to explain satisfactorily how he came by it ; giving false information as to whether the article offered is his own or not, or as to his own name and address or that of the owner; attempting to redeem a pledge which he has no right or coIotu* of right to redeem; offering any pledge which the pawnbroker reasonably believes to have been unlawfully ob- tained, or any pawn ticket which the pawnbroker * Quart, whether merely going on the highway with the intention of pui'suing game was not a sufficient trespass, the public having only the right of passage. See Lord Campbell's Judgment, p. 115. Digitized by Microsoft® ARKEST. 141 reasonably believes to be forged or altered. 35 & 36 Vic. c. 93, ss. 34, 49. Touching thefts in manufactories, &c., constables, beadles (within their parishes), and watchmen (when on duty), may arrest after sunset and before sunrise anyone reasonably suspected of carrying materials suspected to be purloined or embezzled in course of manufacture. 17 Geo. 3, c. 56, s. 11. For the protection of war department stores and naval stores, any metropolitan policeman may (within the limits for which he is sworn) detain any vessel or carriage reasonably suspected to contain any of the Queen's stores unlawfully obtained, or any person reasonably suspected- of having any such in his pos- session. 38 & 39 Vic. c. 25, s. 6. And any police- man may (within any dock, &c., and the area connected therewith, for which he is sworn) detaia any boat or vehicle reasonably suspected of containing any of her Majesty's stores unlawfully obtained, and any person reasonably suspected of having or conveying them. Under the Coinage Act any person may apprehend and deliver to a constable anyone found committing " any indictable offence, high crime and offence, or crime and offence," against the said act. 24 & 25 Vic. c. 99, s. 31. Hermann. Seneschal, supra, p. 139. Upon reasonable suspicion that a person is a deserter, it is lawful for any constable, or, if no con- stable can immediately be met with, then for any officer or soldier in her Majesty's service, or other person, to apprehend, or cause to be apprehended, such suspected person, and forthwith to bring him, or cause hinn to be brought, before any justice living ia or near the place where he was apprehended, &c. (Annual Mutiny Act). Seamen or apprentices deserting their ship may, in any part of the Queen's dominions, be arrested with- out warrant by the master, mate, owner, ship's husband or consignee, with or without the assistance of the local police officers, who are bound to help if required. 17 & 18 Vic. c. 104, s. 246. By 25 & 26 Vic. c. 63, s. 37, the master or other officer of any duly surveyed passenger steamer, and all persons called by him to his assistance, are em- Digitized by Microsoft® 35 & 36 Vic. c. 93, ss. 34:, 49. Manu- factories. 17 Geo. 3, 0. 66, s. 11. Govern- ment stores. 38 & 39 Vic. c. 25, s. 6. Coin. 24 & 25 Vic. c. 99, s. 31. Desertion from the army and navy. Mutiny Act. Desertion from mer- chant 17 & 18 Vic. c. 104, s. 246. Passenger drunken- ness, &c. 25&26Vic. c. 63, s. 37. 142 APPENDIX 1. Railways : trespass- ing — ob- structing railway servants, &c. 3 & 4 Vic. c. 97, s. 16. Travelling without payment, ttC. 8Vic.o.20, ss. 103, 104. Railway servants, being drunken, negligent, &c. 3 & 4 Vic. 0. 97, a. 13. Mischief. Railways : boards, &c. 8 & 9 Vic. 0. 20, ss. 154, 164. Mischief. Damaging watch- houses, lamps, &c. p.owered to detain and convey before a j^istiee, with- out warrant, any person whose name and address is unknown to such oiBB.cer and who has been guilty of drunken and disorderly conduct, molesting passen- gers, forcibly entering the ship when full, or refusing on proper request and tender of Ms fare (if he has paid it), to leave the ship if fuU, avoiding payment of his fare, injuring the steamer or molesting the crew. Eailway servants, or anyone whom they may call to their assistance, niay arrest any person wilfully obstructing them in their duty, or wilfully trespassing upon any railway. 3 & 4 Vic. c. 97, s. 16. Magis- trates have the right to decide whether the trespass is wilful or not. Jones v. Taylor, 1 E. & E. 20. EaUway passengers fraudulently travelling without payment, or beyond the distance for which they have paid, may be arrested without warrant by any of the company's servants, or any constable. 8 Vic. c. 20, ss. 103, 104. But a railway clerk, whose busi- ness it is to issue tickets and keep the price in a till, has no implied authority to give into custody a person whoin he suspects of attemptiag to. rob the till after the attempt has ceased, as such arrest could not be necessary for the protection of the company's property. Allen v. L. ^ S. W. Ry. Co., L. E., 6 Q. B. 65. EaUway servants being drunk or other- wise guilty of misconduct, or guilty of dangerous negligence, may be summarily arrested by any officer, &c. of the company, any special constable, or any person whom such officer, &c. may call to his assist- ance. 3 & 4 Vic. c. 97, s. 13. Persons damaging boards on which the bye-laws of railways are written, and whose name and address are unknown, may be- summarily arrested by any officer or agent of the company, or anyone whom such agent, &c. may call to his assistance. 8 & 9 Vic. c. 20, ss. 164, 164. Persons damaging or extinguishing any lamp, &c. may be arrested by any one who sees them commit the offence, and delivered, without warrant, to any constable. 3 & 4 Vic. c. 90, s. 65. And so of per- sons damaging lamps or other property belonging to Digitized by Microsoft® ARREST. 143 any parish mentioned in schedules A. and B. of the Metropolitan Management Act (18 & 19 Vic. c. 120), s. 206. Also, by the Turnpikes Act, trustees or com- missioners of turnpike roads, their servants, or any person whom they may call to their assistance, may arrest summarily any unknown person whom they find damaging lamps, bridges, &c., or otherwise offending against the act. 3 Geo. 4, c. 126, s. 140. Under the Malicious Injuries to Property Act, sect. 61, any person found committing any offence against the said act, whether the same be punishable upon indictment or upon summary conviction, may be im- mediately apprehended, without a warrant, by any peace oificer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice, to be dealt with according to law. Sect. 57 empowers any constable to arrest, without warrant, persons found loitering at night, &c. (as by 24 & 25 Yic. c. 96, s. 104, c. 100, s. 66). As, however, in the latter case, "night" is not defined by the statute, see supra. With reference to sect. 61, it should be observed that under an older Malicious Injuries Act (7 & 8 Geo. 4, c. 30, now repealed), it was held, inHanway Y.Boult- hie, 4 C. & P. 350, that in order to justify the sum- mary apprehension of an offender, he must have been taken in the fact or on a quick pursuit. By the Explosives Act, 1875 (38 Vic. c. 17), s. 78, any person found committing any act for which he is liable to a penalty under that act, and which tends to cause explosion or fire in or about any factory, maga- zine, store, railway, canal, harbour, or wharf, or any carriage, ship or boat, may be apprehended without a warrant by a constable, or an officer of the local authority, or by the occupier, or the agent or servant, or other person authorized by the occupier of such factory, magazine, store or wharf, or by any agent or servant of or other person authorized by the railway . or canal company or harbour authority, and be con- veyed, &c. before a court of summary jurisdiction. Persons breaking the rules of the Contagious Diseases Act, with respect to infected places, may be summarily apprehended by any constable, 32 & 33 Vic. Digitized by Microsoft® 18 & 19Vio. c. 120, s. 206. 3 Geo. 4, 0. 126, s. 140. Malicious injuries to property. 24 & 25 Vic. c. 97 ss. 57, 61. Explo-- siTes. 38 Vic. 0.17,8.78. Contagious 32&33Tio. 0. 70, a. 49. 144 APPENDIX I. Street znusicians.' 27 & 28Vio. 0. 65, s. 1. Drrai iken- ness. 35&36Vio. c. 94, ss. 12 (par. r' (par. Intoxicat- ing liquors kept con- trary to law. 37 & 38 Vic. c. 49, s. 17. c. 70, s. 49. WitMn the metropolitan district, street musicians required to depart from the neighbourhood of any house by the householder or his servant, or any constable, on account of the illness or the inter- ruption of the ordinary ayocations of any inmate, and continuing to play there, may be apprehended, with- out warrant, by any constable, &c., provided the person making the charge gives them into custody, accompanies the constable to the station house, and signs the charge sheet. 27 & 28 Vic. c. 66, s. 1. By 35 & 36 Vic. c. 94, s. 12 (par. 2), every person who, in any highway or other public place, whether a building or not, is guilty while drunk of riotous or disorderly behaviour, or who is drunk while in charge, on any highway or other public place, of any carriage, horse, cattle, or steam-engine, or who is drunk when in possession of any loaded fire-arms, may be appre- hended, and shall be liable, &c. By sect. 25 (par. 2), any constable may demand the name and address of any person found on any premises during the period during which they are required by the provisions of this act to be closed, and if he has reasonable ground to suppose that the name or address given is false, may require evidence of the correctness of such name and address, and may, if such person fail upon such demand to give his name or address, or such evidence, apprehend bim without warrant, and carry biTn as soon as practicable before a justice of the peace. In the latter section, the constable is empowered to make the arrest without warrant; but in the former, though the circumstances seem to point to an immediate ar- rest (seeing that, before a warrant could be procured, either the damage would be over or the mischief would be done), the words are only "may be appre- hended." Under the Intoxicating Liquors Act, 1874 (37 & 38 Vic. c. 49), s. 17, where a constable, diily armed with a search warrant for the detection of liquors sold or kept contrary to law, has entered any premises in pur- suance of such warrant, and has seized and removed such liquor, he may demand the name and address of any person found on any premises on which he seizes, or from which he removes, any such liquor, and if he Digitized by Microsoft® ARREST. 145 has reasonable ground to suppose that the name or address given is false, may examine such person fur- ther as to the correctness of such name and address, and may, if such person fail upon such demand to give his name or address, or to answer satisfactorily the questions put to him by the constable, apprehend him without warrant and carry him as soon as prac- ticable before a justice of the peace. By sect. 16 of the same act, every person who, by himself or by any person in his employ, or acting by his direction or with his consent, refuses or fails to admit any constable in the execution of his duty de- manding to enter in pursuance of the said 16th sec- tion, is liable to a penalty not exceeding for the first offence 51., and not exceeding for the second and every subsequent offence 10^. By 4 & 5 Will. 4, e. 76, s. 92, if any person shall Smuggling carry, bring or introduce, or attempt or endeavour to lil^or i^to carry, bring or introduce, into any workhouse any io°uses. spirituous or fermented liquor, without the order in 4 & 5 will, writing of the master of such workhouse, it shall be 4, c. 76, lawful for the master of such workhouse, or any officer ^" of the same acting under his direction, to apprehend, or cause to be apprehended, such offender. This section does not, in terms, empower ordinary con- stables to make the arrest, unless such authority is implied in the words "cause to be apprehended," which, however, seem applicable rather to the employ- ment of the officer of the workhouse by the master. By29 & 30Yic. c.117, s. 21, if any offender sentenced Eeforma- to be detained in a reformatory school escapes there- ^ school from, he may, at any time before the expiration of 29&Tovic his period of detention, be apprehended without war- 0. 117, s. 21! rant; and by 29 & 30 Vic. c. 118, s. 33, if a child sent industrial to a certified industrial school, and while liable to be schools- detained there, and whether lodging in the school l^^^^- itself or not {i.e., whether actually detained at the ^^ ^g "_ 33; school or allowed to Hve with some trustworthy person ' ' ' ' by licence, under sect. 27), escapes from the school, or neglects to attend thereat, he may, at any time before the expiration of his period of detention, be apprehended without warrant. By 9 & 10 Vic. c. 95, s. 114, if any officer or bailiff „ Digitized by Microsoft® L 146 APPENDIX I. Assaulting county court bailiff and res- cuing gOOM. 9 & 10 Vic. 0.95,3.114. Arrest after escape. 31 Car. 2, 0. 2, s. 5. of any court holden under that act is assarilted wMle in the execution of his duty, or if any rescue shall he made or attempted to be made of any goods levied under process of the court * * * it is lawful for the hailifF of the court or any peace officer in any such case to take the offender into custody, with or without warrant. So far as the personal assault upon the officer is concerned, this section does not enlarge the common law power of a constable to arrest a person committing a breach of the peace, except it be held to mean that a person guilty of an assault in these circumstances may be arrested with- out warrant after all danger of a fray has gone by. Where, however, a person resisted two county court officers breaking into his factory to execute a warrant upon another person, whom they erroneously supposed to be there, and on afterwards coming out was given into custody by them, it appears that the arrest was not justifiable on the part of the officers, though the high baUiff could not be made liable for their mis- appKcation of a section intended to protect them personally, the arrest not being made in pursuance of the warrant. Smith v. Pritchard, 8 C. B. 566. In criminal cases where a prisoner escapes, if the escape be negligent merely, the gaoler or officer may retake him at any time without warrant (Dalt. c. 169) ; if voluntary, he cannot afterwards be retaken by virtue of the same warrant under which he was first arrested (2 Hawk. c. 14, s. 9) ; but he maybe retaken without warrant in cases where he might have been arrested without warrant originally. Archbold's Criminal PI. (18th ed.) 731. And semlle, that a prisoner improperly at large, though without any breach of prison on his part (provided it is not by consent of the gaoler), may be retaken by the gaoler without warrant. Bugdale v. R., 24 L. J., M. 0. 55. Persons set at large upon any habeas corpus may not be imprisoned or committed for the same offence, except by the legal order and process of such court wherein they shall be bound by recognizance to ap- pear, or other court having jurisdiction of the cause. 31 Oar. 2, c. 2, s. 5. But this provision only appHes when the second arrest is substantially for the same Digitized by Microsoft® ARREST. 147 cause as the first. Ait.- Gen. of Hong Kong v. Kwok- a-Sing, 42 L. J., P. C. 64; 29 L. T., N. S. 114. The law of prison breach, is in a great measure founded on 1 Edw. 2, st. 2, De Frangentibus Prisonam, hut many more modern enactments have been passed on the subject, as, e.g. 1 & 2 Vic. c. 82, ss. 12 — 14; 6 & 7 Vic. c. 26, s. 22. It seems from Hawkins' P. C, that persons attainted who break prison are as guilty as those who haye been committed and break out before trial. If, however, a person committed for a substantive felony should break prison and be re- taken, and be indicted for the substantive felony first and be acquitted on that, semble that he cannot be convicted for the prison breach because he is in law as a person wh(j never was committed for felony. See Mrs. Stanford's case, 1 Hale, P. 0. 1—12 (Dogherty's ed. vol. 2, p. 254), Archbold's OriminalPl.( 1 8th ed. ) 836. But a mere dismissal by a magistrate of an indictable charge is not tantamount in this respect to an acquittal on indictment ; so that a person arrested without war- rant on a charge of larceny, who is remanded (under 11 & 12 Vie. c. 42, s. 21), breaks out of the lock-house, surrenders for the adjourned heanng, and is dis- missed, by the magistrate on the charge of larceny, may be indicted and convicted on the charge of prison breach. R. v. Waters, 12 Cox, 0. 0. 391. And this though he had been arrested without warrant, and was remanded without any evidence being given against him on oath. Ihid. Anj place in which a person under a lawful arrest for a supposed crime is restrained of his liberty, whether it be in the stocks or the street, or in the common gaol, or in the house of a constable or private person, is a prison within the statute 1 Edw. 2, st. 2, but there must.be an actual breaking of some sort ; though it seems that an accidental disturbance of bricks, purposely left loose at the top of a wall, is sufficient. R.\.Haswell, Euss. & Ey. 459 1 J. P. 37, 705, 706. There is a distinction of some importance between the case of persons apprehended under the 3rd sect. of the 5 Geo. 4, c. 83, as "idle and disorderly," and that of persons apprehended under the, 4th sect, as rogues and vagabonds. Violent resistance on the part Digitized by Microsoft® Prison breach. 1 Ed. 2, St. 2, c. 1. 1 & 2 Vio. c. 82, ss. 12—14. 6 & 7 Yio. 0. 26, B. 22. 11 & 12Vio. 0. 42, a. 21. 5 Geo. 4, 0. 83, S3. 3, 4. Resisting officer — distino; tions. 148 APPENDIX I. of the former renders them rogues and vagabonds, liable to three months' hard labour (sect. 4). On the part of the latter it renders them (on conviction of the offence for 'which they were apprehended) "incor- rigible rogues," liable to be committed, Tsdth hard labour meanwhile, to the next general or quarter sessions, and then, if two justices at quarter sessions see fit, to be imprisoned with hard labour for a year further, and if the offenders are of the male sex to be whipped during such imprisonment (sect. 5). In respect of offences of a compound nature, such as resisting lawful apprehension, &c., it will be well to consult the case of R. v. Brickhall, 33 L. J., M. C. 150 ; Jur., N. S. 677, where a summons for assaulting a ^lOO^^^Ss' constable ia execution of his duty (24 & 25 Vic. c. 100, "■ '^- ■ s. 38) having been dismissed, and the prisoner having been convicted of a common assault, it was held that the charge being under one statute and the con- viction under another, the justices had no jurisdiction and the certiorari was not taken away by sect. 72 of the 24 & 25 Vic. c. 100. Whenever it is a constable's duty to make an arrest it is the duty of the person arrested to submit. Sect. 38 of the 24 & 25 Vic. c. 100, says: .... " Whoever shall assault, resist or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person, shall be guilty of a misdemeanor, and being convicted thereof" may be imprisoned for two years with hard labour. See also 5 Geo. 4, c. 83, s. 4, supra; 2 & 3 Vic. c. 47, s. 18, id.; 3 & 4 Vic. c. 84, s. 6, id.; and 24 & 25 Vic. c. 81, s. 3, id. In spite of the cases of Codd v. Cabe and GalUard V. Laxton, supra, it would be rash to say that every degree of violence is lawful in the case of imlawfiil arrest. In GalUard v. Laxton, the charge of Wight- man, J., pointed out the charge was not one of felony, but rather in the nature of a civil than a criminal pro- ceeding. His lordship also observed: " If requested, the officers were bound to produce the warrant, and if so, the keeping in custody aiter such request, and 24 & 25 Vie. c. 100,8. 38. Digitized by Microsoft® ARREST. X49 non-compliance, would not be legal, and it could hardly 'be contended that the arrest itseli could be legal, though the detention under the circumstances above supposed would be illegal." In MaclalUy's Madcal- case, it was laid down that if a minister of justice W^oi^^^- were MUed in the execution of process, it would be murder, although such a process were apparently- erroneous; and that if a sheriff, justice, chief or petit constable, or watchman, were killed in the execution of their office, it would be murder; that an officer making an arrest need not (if the party arrested should resist) show at whose suit, or out of what court, or for what cause he made the arrest; and that if notice of being an officer were necessary, the words "I arrest you in the king's name," would be sufficient. Coke, E., pt. 9, 65 f.. Eraser's ed., vol. 5, p. 111. On a charge of assaulting a poHceman while making an arrest, the poHceman, though he may show that he had reasonable grounds for believing the prisoner to have committed felony [supra], ought not to be examined by the prosecution as to general character. R. V. TuUerfield, 34 L. J. 20; 11 Jur., N. S. 1111; Cox, M. C. 95. And an indictment against a person Eefasing for refusing to aid and assist a constable in the exe- *» ^^ist OTTl PPT cution of his duty, and prevent an assault made upon him by prisoners in his custody on a charge of felony with intent to resist their lawful apprehension, is sufficient without stating how the apprehension be- came lawful, and if it state a refusal to assist without the further allegation that he did not in fact aid and assist. R. v. Sherlock, 35 L. J., M. 0. 92. An officer making a lawful arrest for felony may, Powers if necessary, kill the person sought to be arrested, in and rights self-defence, if such party resist, or even to prevent stables'. his escape if he fly, provided the JEelony can be proved against the deceased. 1 Hale, 481. And formerly the goods of the person so killed were forfeited. Ibid. 1 East, P. C. 298, § 67; and cf. p. 319 of the same volume, where Machalley's case is discussed. But the homicide would not be justifiable, even though the charge were one of felony, if the arrest woxdd have been illegal: and so of killing in mere pursuit, where the charge is only one of misdemeanor, and, d, fortiori, Digitized by Microsoft® 150 APPENDIX I. Hand- cuffing pri- soner. SearcMng prisoners. 5 Geo. 4, c. 83. B. i. is a mere civil proceeding. Fost.27l. InE.v. Dadson, 20 L. J., M. C. 67, it was held that a constable was not Justified in firing at a man whom he saw stealing wood growing in a copse (which, if a first ofEence, would only be a misdemeanor), although the con- stable had no other means of arresting the man, and although the steaUng in the particular instance aniounted to felony, by reason of the man having been previously convicted several times for similar offences, under the repealed act 7 & 8 Geo. 4, c. 29, s. 39, these convictions being unTmown to the constable at the time. An unconvicted prisoner ought not to be handcuffed where there is no reason to fear an attempt at an escape or rescue, and it seems that a constable who manacles a prisoner without reasonable ground for apprehending violence, is liable to an action for assault. Wriffht v. Court, 4 B. & 0. 596; GrifiinY. Coleman, 4 H. & N. 265; 2 Hale, P. 0. 219. But prisoners may be manacled if there is reasonable ground for it; and in 1867, at Manchester, the ■magistrate, Mr. Fowler, refused to have the fetters taken off certain Fenian prisoners arraigned before him, though their counsel, Mr. Ernest Jones, threw up his brief inconsequence. Solicitors' Journal, 11,1063. Severe strictures were recently passed upon the practice frequently exercised by policemen of searching unconvicted prisoners. In M. v. Boulton and others, 12 Cox, 0. C. 93, 95, Cockburn, C. J., said: "The act of the police surgeon in examining the person of the prisoner, as he did, without any legal autho- rity, was wholly imjustifiable. He had no more right to do it than he would have to inflict such an indignity on any person in custody, or any per- son he met in the streets." Semble, that no magis- trate has the power of giving " legal authority " to search a prisoner's person, but an expedient like that condemned in the above case by the Lord Chief Justice has occasionally been practised towards male prisoners accused of violating or attempting to violate female children, who are found to be suffering from venereal disease. So various statutes, e.g. 5 Geo. 4, Digitized by Microsoft® AKEEST. 151 32 & 33 Vic. 0. 71, s. 17. persons found in possession of picklocks, keys, &c., ■with intent to break into any house); 24 & 25 Vic. 24 & 25 Vic. c. 96, s. 58 (making the being found with house- "■ 96> s- 58. breaking instruments at night -with felonious intent a crime); 24 & 25 Vie. c. 99, s. 10 (treating as criminal, 24 & 25 Vic. liable to two years' hard labour, persons who know- "■ ®^' ^' •'^''• ingly pass a counterfeit coin, having another in their possession), appear to assume that suspected persons may be searched on their apprehension, since neither counterfeit coin nor skeleton keys are likely to be ostentatiously displayed. And the 33 & 34 Vic. c. 23, 33&34Vio. s. 3, provides that the court condemning a person of "• 23, s. 3. treason or felony may order payment of the costs of the prosecution out of money taken from the prisoner at his apprehension, which money has been decided to vest immediately in. the court, so that the title of the court dates from the prisoner's apprehen- sion, and will even defeat the claim, of a trustee in bankruptcy, under 32 & 33 Vie. c. 71, s. 17. H. V. Roberts, 43 L. J., M. C. 17. Here again, the legislature appears to have taken for granted the existence at common law of a right on the part of constables to search prisoners. And the same argument applies to observations made by several learned judges as to the propriety of returning to prisoners property taken from them which appears to have nothing to do with the charge against them. See R. V. Griffiths, 8 J. P. 66 ; R. v. O'Donnell, 7 C. & P. 138; R. V. Kersey, 7 C. & P. 447. In all these cases it appears not to have been questioned by the court that the inconvenience or indignity of having the person searched is like that of having the liberty restrained, one which all citizens must be liable to undergo if they fall under a suspicion of having committed a crime. And the 11 & 12 ll&l2Vio. Vic. c. 42, s. 26, provides that if it shall appear c. 42, s. 26. to the committing justice that a prisoner "hath" sufficient money to pay the expense of his con- veyance to gaol, he may make an order for its application in that way. In Mr. Oke's Mag. Syn. (12th ed.), vol. 2, p. 944, n. (3), the author advises, for the carrying out of this enactment, that the gaoler should certify on the back of the receipt for the Digitized by Microsoft® 152 APPENDIX I. prisoner the amount of money found upon Mm at the time of his being received into custody ; therein apparently assuming that the prisoner is to be searched. But the statute does not say so, and in R. V. Bass, 2 0. & K. 822, the judge condemned the practice of taking away a prisoner's money to pay for the expense of his conveyance and maintenance. 3 Jao. 1, And the 3 Jac. 1, c. 10, s. 1, directs that if a prisoner 0. 10, s. 1. a Ijq q£ sufficient ability " to pay the expense of con- veyance and "refuse" to do so, the justice may by ■warrant command a distress on his goods, which statute does not seem to recognize any right of stripping a prisoner of that which he has about him. If, however, constables were absolutely forbidden to search a person in custody, he might carry iuto the prison concealed about Mm weapons and tools to effect an escape and money to bribe Ms gaolers ; and in many cases stolen property, if small in bulk, can only be recovered by searching the person. It is possible that one or all of these considerations formed the original justification for personal search, and that tMngs being once transferred from the personal custody of the prisoner to that of the officer, the latter assimied the right to deal with them. In Lewis v. Eae, J. P., vol. 10, No. 25 ; Snowden's Constables' Guide, p. 121, it was held that a magis- trate's verbal order was a sufficient excuse for the Detention detention of goods for a reasonable time, so that the ^° prosecutor should not, if delayed by unforeseen acci- dents or obstacles, find the material evidence gone. The right of searching unconvicted prisoners ap- pears to be assumed in the Prisons Act, 1877 (40 & 41 Vic. c. 21), wMch enacts (sect. 39, par. 1) that the secretary of state shall make, and when made may from time to time repeal, alter, or add to, special rules — With respect to the retention by a prisoner of the possession of any books, papers, or docu- ments in Ms possession at the time of Ms arrest, and wMch may not be required for evidence agaiost him, and are not reason- ably suspected of forming part of property improperly acquired by him, or are not for Digitized by Microsoft® ARKEST. 153 some special reason required to be taken from him for tlie purposes of justice. A constable arresting a man on suspicion of felony- must take him before a justice to be examined as soon as be reasonably can. He has no rigbt to detain bim for sucb a period as tbree days in order tbat tbe prosecutor may collect bis -witnesses, &c. Wright v. Court, 4 B. & 0. 596. But a policeman on duty at a police station is justified in detaining (under 10 Geo. 4, c. 44, s. 9 (repealed), and 2 & 3 Vic. c. 47, ss. 69, 70) a person brought there in charge and delivered to birn by a policeman, though be may have been illegally arrested, as, for instance, if he bas been arrested -mithout warrant upon suspicion of ba-ying been guilty of perjury. Bowditch v. Fosherry, 19 L. J., Ex. 339. And under 11 & 12 Vic. c. 43, s. 16, a magistrate may, if in bis discretion he sees fit, commit a defendant durLag an adjournment to the bouse of correction, and it is immaterial whether tbe ofiicer -who brought defendant before tbe magis- -fcrate -was justified in doing so or not. Gelen v. Hall, 2 H. & N. 379 ; 27 L. J., M. C. 78. Detaining prisoners. Bailing ■by- constables, &c. 10 Geo. 4, 0. 44, s. 9. 2&3Vic. c 47 ss. 69, 70. 11 &12Vic. c. 43, s. 16. Digitized by Microsoft® ( 1<'54 ) Appendix II.— APPEAL. 20&21Vio. c. 43. H & 12Vio. c. 44, s. 5. There are at present seven modes in wHcIl the sum- mary decisions of justices can be reviewed, and, if l2&l3Tio. erroneous, corrected — (1) appeal under particular sta- c. 46, B. 11. tutes, (2) reference from quarter sessions to a judge of assize (obsolete), or by special case to any superior court (for both of which, however, a preliminary appeal to quarter sessions is necessary); (3) stating a case (20 & 21 Yic. c. 43); (4) certioraai ; (5) habeas corpus; and (6) mandamus (11 & 12 Vic. c. 44, s. 5); (7) prohibition. Appeal from the summary jurisdiction of magis- trates is the creature of statute ; and the provisions of the statute by virtue of which the appeal exists must, in all cases, be strictly followed. Leeming & Cross, Q. 8. 229 ; and see Saunders' Practice of Magistrates, 317. Within the metropolitan district the power of ap- peal is not confined to any special classes of offences. It is enacted by 2 & 3 Vic. c. 71, s. 50, that in every case of summary order or conviction before any of the said magistrates, in which the sum or penalty adjudged to be paid shall be more than SI., or in which the penalty adjudged shall be imprisonment for any time more than one calendar month, any person who shall think himself aggrieved by the order or conviction may appeal to the justices of the peace at the next general or quarter sessions of the peace to be holden for the county wherein the cause of complaint shall have arisen, provided that such per- son at the time of the order or conviction, or within forty-eight hours thereafter, shall enter into a recog- Digitized by Microsoft® 2 & 3 Vio. c. 71, s. 50. Metropolis. APPEAL. 155 nizaaee, -with two sufficient sureties, conditioned per- sonally to appear at the said sessions to try such, appeal, and to abide the further judgment of the justices at such sessions assembled, and to pay such costs as shall be by the last-mentioned justices awarded ; and it shall be lawful for the magistrate, by whom such order or conviction shall have been made, to bind over the witnesses who shall have been examined, in sufficient recognizances, to attend and be examined at the hearing of such appeal, and that every such witness, on producing a certificate of his being so bound, under the hand of the magistrate, shall be allowed compensation for his time, trouble and expenses in attending the appeal, which compen- sation shall be paid, in the first instance, by the treasurer of the county, in like manner as in cases of misdemeanor under the provisions of an act passed in the seventh year of the reign of King George the 7 Geo. 4, Fourth, intituled An Act for improving the Adminis- <=■ ^• tration of Criminal Justice in England ; and in case the appeal shall be dismissed, and the order on con- viction affirmed, the reasonable expenses of all such witnesses attending as aforesaid, to be ascertained by the court, shall be repaid to the treasurer of the county by the appellant. Under the Larceny Act (24 & 25 Vic. c. 96), s. 110, 24&25Vio. there is an appeal wherever the imprisonment exceeds "■ ^^j ^- 1'-"- one month or the fine 51. ; but it is probable that, within the metropolitan district, the limit of SI. ought to be acted upon, even though the case come within the operp.tion of 24 & 25 Yic. c. 96 ; the older enact- ment being in favorem libertatis, and not expressly repealed. By sect. 56 of 2 & 3 Yic. c. 71, that act is declared 2 & 3 Vic. not to prevent recovery of penalties, &c. in proceed- "=• '^1' =• ^^■ ings under acts relating to customs, excise, stamps, taxes, or post office. Before passing shortly in review the different modes by which the summary decisions of justices may be directly or indirectly brought under the criticism of a higher tribunal, it will be best to make one observation upon the section just cited from the Metropolitan Police Act (2 & 3 Vic. c. 71). Digitized by Microsoft® 156 APPENDIX II, 2 & 3 Vic. c. 71, fl. 50. 2 & 3 Vic. 12 & 13 Vic. c. 45, s. 1. 12 & 13Vic. 0. 45, s. 2. It would seem from the case of B. v. Justices of Warwickshire, 25 L. J. 352, (Q. B.) ; Cox, M. C. 2, decided under 12 & 13 Vict. c. 92, s. 25 (where tlie limit, of the penalty giving an appeal was 21.), that the sum of 3Z. named in 2 & 3 Vie. c. 71, s. 50, must be exclusive of costs. In the case cited, semhle, that to give an appeal it was regarded as necessary that the alternative imprisonment should be awarded as a punishment for the offence. The operation of the 2 & 3 Vic. c. 71, s. 60, within 0. 71, s. 50. ^jj^Q metropolitan district is specially important for the reason given above, i.e., that there is no general right of appeal from the decisions of magistrates. Appeals to quarter sessions are regulated in general by the 12 & 13 Vic. c. 45. By the first section of that statute at least fourteen clear days' notice of appeal must be given, and such notice of appeal must be in writing signed by the person or persons giving the same, or by his, her or their attorney on his, her or their behalf. The class of cases to which this enactment applies is very limited, because by sect. 2 the above section, relating to notices of appeal, is not to affect or alter the law as to notice of appeal against a summary conviction, or against an order of removal, or against an order under any statute relating to pauper lunatics, or against an order in bastardy, or against any pro- ceeding under or by virtue of any of the statutes relating to her Majesty's revenue of excise or cus- toms, stamps, taxes or post office. And except where a statute expressly requires notice of appeal to be in writing, it may be verbal. Paley, Sum.. Conv. 311. Where, written notice of appeal not being required by statute, verbal notice is given immediately on a verbal adjudication, which latter is afterwards drawn up in writing, the verbal notice is sufficient, though required by statute to be given within twenty -four hours after the adjudication, at least when the latter is drawn up in such terms as to make it apparently a contemporaneous judgment with that orally de- livered. R. V. Huntingdonshire Justices, 19 L. J., M. C. 127. But in cases within the operation of the Digitized by Microsoft® APPEAL. 157 Ist, and not ol tte 2nd section, fourteen clear days' notice must be given in writing. When "at least" so many days' notice of appeal Notice of is required, both the day of giving notice and the ^^^^^ ' first day of the sessions are excluded, and the fraction of a day cannot be counted, and the time is to be computed up to the day on which the appeal is entered, and not that on which it is heard. R. v. Middlesex Justices, 14 L. J., M. C. 139 ; Zouch v. Emfrey, 4 B. & Aid. 522 ; R. v. Salop Justices, 8 Ad. & Ell. 173 ; Mitchell v. Foster, 12 Ad. & Ell. 473. Where, however, a statute gave an appeal, and provided that execution should be suspended if the person convicted entered "immediately" into certain recognizances, it was held that "immediately" meant promptly and expeditiously, regard being had to all the circumstances of the case. R. v. Aston, 19 L. J., M. C. 236. Semble, that service of notice of appeal on one of several persons jointly affected by the appeal (as, e. g., one of several part owners) is suffi- cient. R. V. Recorder of Liverpool, 31 L. J., M. C. 127. And where A. had been ordered in two separate orders to contribute to the support of two bastard children, and he appealed and gave separate recog- nizances to prosecute the appeal, a single notice of the two recognizances was held reasonably sufficient. R. V. Leeds {Recorder), 21 L. J., M. C. 171. In R. V. Oxfordshire Justices, where three defendants were summarily convicted on a joint hearing (of unlawful fishing under 7 & 8 Geo. 4, e. 29, s. 34, repealed), and gave a joint notice of appeal against such con- viction, it was held that the quarter sessions were bound to hear and determine the appeal, although three separate convictions were returned to the sessions (12 L. J., M. C. 40, 41) ; but, semhle, that it would have been otherwise i£ there had been such a variance as might have misled the parties, for the general rule against such variances " applies even more strongly to convictions than to orders." Per. Denman, 0. J., ihid. In R. V. Newcastle-on- Tyne Justices, 1 B. & Ad. 933, 5 Geo. 4^ a notice of appeal against a conviction, under 6 Geo. 4, c. 83, s. 4, of a party as a rogue and vagabond, for Digitized by Microsoft® c. 83, s. 4. 158 APPENDIX II. 12 & ISVio. c. 45, s. 1. 12 Vio. c. 16, s. 5. 12 & ISVio. 0. 45, 3. 7. obscenely exposing Ms person in a place of public resort, with intent to insult a female, stating, as the ground of sucb appeal, tbat tbe appellant was not guilty of the said offence, was held suiRcient. Suf- ficiency of the notice is a question for the sessions appealed to. Re Carter, 24 L. J., M. C. 72. By the latter part of 12 & 13 Vie. c. 45, s. 1 (which, how- ever, must be read as limited by s. 2, supra), the grounds of appeal must be specified in every such notice as the section requires ; p?:ovided always, that it, shall not be lawful for the appellant or appellants, on the trial of any such appeal, to go into or give evidence of any other grounds of appeal besides those set forth in such notice. Of. post, 20 & 21 Vic. c. 43. It is, however, not a universal rule that appellants are limited to the grounds which they have specified in their notice, though this is frequently required by statute; and it seems probable that there is no objec- tion to abandoning one or more of several groimds of appeal and proceeding on the remainder. R. v. Kent Justices, Re Mercer, 6 Q. B. (L. E.) 132. So it is competent to either party to produce evidence in support of his case additional to that given before them. R. v. Hall, 7 B. & S. 642. Except where the power is expressly taken away, as by 7 & 8 Geo. 4, c. 53, s. 84, and 4 & 5 WiU. 4, c. 61, s. 24 (excise). But an applicant for a renewed beer licence under 9 Geo. 4, c. 61, s. 27, and 32 & 33 Vie. c. 27, s. 8, having failed to produce satisfactory evi- dence to character, may, on appeal, call fresh evidence of character. R. v. Pilgrim, L. E., 6 Q. B. 89. Wben justices have deliberately and advisedly adjudicated upon a case before them at petty sessions, the court will not, in exercising the jurisdiction con- ferred by the 12 Vic. c. 16, s. 5, send the case back to them to re-hear and determine it. R. v. Dublin Justices, 5 Ir. E., 0. L. 648. 12 & 13 Vic. c. 45, s. 7, now directs that if upon the trial of any appeal to any . court of general or quarter sessions of the peace against any order or judgment made or given by any justice or justices of the peace, or if, upon the return to any writ of certiorari, any objection shall be made on account of any omission or mistake in the drawing Digitized by Microsoft® APPEAL. 159 up of such, order or judgment, and it shall be sho-wn to the satisfaction of the court that sufficient grounds ■were in proof before the justice or justices making such order or giving such judgment to have autho- rized the drawing up thereof free from the said omis- sion or mistake, it shall be lawful for the court, upon such terms as to payment of costs as it shall think fit, to amend such order or judgment, and to adju- dicate thereupon as if no such omission or mistake had existed: provided always, that no objection on account of any omission or mistake in any such order or judgment brought up upon a return to a writ of certiorari shall be allowed, unless such omission or mistake shall have been specified in the rule for issTiing such certiorari. In £. v. Higham, 26 L. J., M. C. 116, the insertion in a summons of a material particular, afterwards omitted in the order, was held to have supplied the justices with "sufficient grounds," BO as to enable the court above to amend. See also R. V. Hellingly, 28 L. J., M. C. 167. But in R. v. Cridland, 27 L. J., M. 0. 28, a conviction of four persons under 1 & 2 WUl. 4, c. 32, s. 30, so framed as to make each defendant liable to imprisonment untU he had paid the penalty and the expense of conveying to gaol not only himseK but the other persons con- victed, was held bad. A justice cannot draw up an amended record of a summary conviction after the first conviction has been quashed on certiorari. Chaney v. Payne, 1 Q. B. 712. In the absence of express provision execution is not suspended by appeal. Paley, Sum. Con. (5th ed.), pp. 345, 347. Semble, that though s. 27 of 11 & 12 Vic. c. 43, contemplates the possibility of ll&12V^c a convicted defendant being at large during an ap- peal, it only applies to cases where proceedings are suspended during appeal, and does not enact by im- plication that they are to be so suspended in all cases. Ex parte Willmott, 30 L. J., M. 0. 161. With re- ference to the release of an appeUant under 20 & 21 Vic. c. 43, s. 3, see infra. A case once referred on appeal to quarter sessions may come before a superior cop?t, by a process the origin of which is rather obscure. The court of 1 & 2 WiU. i, 0. 32, s. 30. 0. 43, 8. 27. 20 & 21 Vic. 0. 43, s. 3. Digitized by Microsoft® 160 APPENDIX II. quarter sessions has (apparently by immemorial cus- tom, and quite independently of the statutory powers 12&13Vio. which it now holds under 12 & 13 Vic. c. 45, s. 11, c. 45, s. 11. lYifra) a power of reserving points of law for the de- cision of a superior court wherever certiorari has not been taken away, and even up to a certain point where certiorari has been taken away. The history of this practice has been lucidly sum- marized by Mr. Justice Field in giving judgment on the recent case of R. v. Chantrdl. Ijo. the very earliest forms of commission of the peace jus- tices are enjoined not to decide cases of difficulty, except in presence of one of the superior judges. At first, justices of the peace used to attend the assizes for this and other purposes ; afterwards they referred their difficulty by stating it in writing (which was done as late as 1734), and finally adopted the practice of deciding the appeal con- ditionally and subject to the opinion of the court upon any question of law reserved by them. Per Field, J., R. v. Chantrell, 10 Q. B. (L. E.) 687, 588. See further Leeming and Cross' Quarter Sessions (2nd ed.), pp. 327 — 332. Cases on appeal under the poor laws were frequently so stated. Per Alderson, B., R. v. Gamble, 16 M. & W. 397. It seems that it is quite discretionary with the judge of assize whether he wiU. accept a reference or not, or give his opinion upon the whole case, or on some point merely. Leeming and Cross' Quarter Sessions, 327 (o) ; R. v. Reading, Cas. temp. Hardwicke, 81 ; R. v. Tedford, Burr. S. C. 57. Special When the above practice was first followed by the case at further step of appealing from the decision of the la-w. circuit judge to the Queen's Bench is not quite cer- tain. It appears from an anonymous case (2 Salk. 486) that as early as Hilary Tei-m, 11 W. & M. 3, an attempt was made to reserve a case for the opinion of the Court of King's Bench, but that court refused to entertain it, and remitted it to the judge of assize. Semhle, however, that unless the parties should ex- pressly consent to a reference to a judge of assize the Queen's Bench may entertain the appeal, if brought before them afterwards. Leeming and Cross, 329. Digitized by Microsoft® APPEAL. 161 But the consent in question must not be such as, either directly or by implication, to preclude further appeal. Where both parties appeared by counsel before the judge of assize. Lord Mansfield refused to entertain an appeal, on the ground apparently that there had been an implied undertaking to accept the ruling of the judge below as final. Currenden v. Laland, 2 Str. 903. The old common law mode of appealing from the decision of the circuit judge is by a special case stated for the court of Queen's Bench. The Queen's Bench has no power, unless a special case be stated, to review the decision of the court of quarter sessions within their jurisdiction. R. v. Allen, 15 E. 333. The special case can only be reserved where certiorari has not been taken away, because though no cer- tiorari is necessary, in the first instance, for reference to a judge of assize {R. v. Gamble, 16 M. & W. 397), yet when a special case is granted the proceedings have to be removed, so that a certiorari is required. Leeming & Cross, 329 ; R. v. Middlesex Justices, 8 J. & E. 117; R. V. Chantrell, 18 Q. B. (L. E.) 587. Attempts have been made (though ineffectually) to carry the process stUl further. E.g., in R. v. Price, 9 L. J., M. C. 40, the question was argued whether a special case so reserved could be turned into a special verdict, so as to become liable to a writ of error ; the court, however, decided that it could not, and referred to Thornton v. Fairlie, 8 Taunton, 364. The effect of a different decision would have been that a writ of error, which does not lie directly on a summary conviction, might have been made to do so indirectly. Alternative cases are to be avoided. The court of quarter sessions should not- in a special case ask questions of the court with a view to a re-hearing of the case. R. v. Inhabs. West Houghton, 13 L. J., M. C. 41. Nor should they send up a case with a view to its being re-heard by them, but should decide both ways provisionally. R. V. Inhabs. Stoke-upon-Trent, ibid. In R. v. Inhabs. Westoe 10 L. J., M. C. 112, the court refused to hear a case from quarter sessions setting forth that " if the Court of Queen's Bench shall be of opinion, G. M Digitized by Microsofi® 162 APPENDIX II. Special case under 12 & 13 Vic. c. 45. 12 & 13 Vie. c. 45, B. 11. 20 & 21 Vic. c. 43. 12 & 13Vic. c. 45, s. 11. &c., tiien the aforesaid order shall stand coniinned; but if the court shall be of a contrary opinion, then the appeal to stand respited until the general quarter sessions." In L. Sf N. W. Rail. Co. v. Coldfield, 22 W. E. 324, justices ordered an appeal to be entered and respited subject to a case for the opinion of the Court of Queen's Bench. The case left for the decision of the court was whether the sessions were right in making the order ; if not, the appeal was to be struck out. The court refused to look at a case reserved on such an order, on the ground that its decision, would not finally dispose of the appeal, and that a point not finally disposing of an appeal ought not in any form to be brought before the court on a case. The ancient common law practice on this head is now to a great degree superseded by the statutory practice, so much so that in Leeming and Cross's Quarter Sessions a doubt is expressed whether since the 12 & 13 Yic. c. 45 judges of assize would not refuse to interfere. Leeming & Cross, 329. By sect. 11 of that act facilities are given for taking (wherever an appeal to quarter sessions exists, and except in certain specified cases) the opioion of a superior court directly, instead of approaching it through the quarter sessions. This process is limited to cases where an appeal to quarter sessions has already been given by statute, in which respect it has a more restricted range than 20 & 21 Vic. c. 43 {post) ; but in some other respects the earlier act is the wider in its operation, since its terms comprehend eases which have been ruled not to be within the reach of 20 & 21 Vic. e. 43. 12 & 13 Vic. c. 45, s. 11, enacts, that at any time after notice given of appeal to any court of general or quarter sessions of the peace against any judgment, order, rate or other matter, except in the cases enume- rated {infra), for which the remedy is by such appeal, it shall be lawful for the parties, by consent, and by order of any judge of one of the superior courts of common law at Westminster, to state the facts of the case in the form of a special ease for the opinion of such superior court, and to agree that a judgment Digitized by Microsoft® APPEAL. 163 in conformity with the decision of such court, and for such costs as such court shall adjudge, may be entered on motion by either party at the sessions next or next but one after such decision shall have been given ; and such judgment shall and may be entered accordinglj', and shall be of the same effect in all respects as if the same had been given by the court of general or quarter sessions upon an appeal duly entered and continued. When a case is stated under this section, costs are awarded as between party and party. Earl of Clarendon v. St. Jameses, Westminster, 20 L. J., M. 0. 213; 10 C. B. 806. But the statute does not apply to an order in bas- tardy, or a proceeding under or by virtue of any of the statutes relating to her Majesty's revenue of excise or customs, stamps, taxes or post office. "Whenever now a party is dissatisfied with a summary decision of justices which has been given directly upon an information or complaint, appeal may be had by special case to one of the superior courts of common law whether there is an appeal to quarter sessions or not. This is effected 'by 20 & 21 Vic. e. 43. By the second section of that act, after the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter tobe made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or jus- tices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the superior courts of law to be named by the party applying ; and such party, here- inafter called "the appellant," shall, withm three days after receiving such case, transmit the same to the court named in his appKcation, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceed- ing in which the determination was given, hereinafter called " the respondent." M 2 Digitized by Microsoft® 20 & 21 Vic. c. 43. 20 & 21 Vic. c. 43, s. 2. Justices on application of a party aggrieved to state a case for the opinion of superior court. 164 APPENDIX ir. From the language of Campbell, C. J., in Potter v. Berry, 6 W. E. 71, semWe that the justices, instating the case, must determine it, and cannot find alterna- tively. There the appeal was on behalf of a com- plainant who was dissatisfied with an acquittal, and though the question was not actually adjudicated, it Sect. 9. was pointed out that the 9th section (post) contem- plates the afiirmation on appeal of a conviction, not an appeal against the dismissal of a complaint and judgment for the appellant. In Davys v. Douglas, 32 L. J., Ex. 283; Cox, M. 0. 161, however, it was de- cided that the justices had power to state a case in the event of an acquittal as well as of a conviction. The words " any iniormation or complaint, &c." have been construed to include within the operation of the act a conviction for refusing to deliver up a certificate of registry, under sect. 50 of the Merchant Shipping Act of 1854 {ArUe v. Hetizell, 27 L. J., M. C. 110); an order, under Lord Campbell's Act (20 & 21 Vic. c. 83), for the destruction of obscene publications Steele v. Brannon, 41 L. J. 85; L. E., 7 C. P. 261 ; and the question (being one of law and not of fact) whether a performance is theatrical, so as to be illegal without the licence of the lord chamber- lain. Wigan v. Strange, L. E., 1 C. P. 175. A re- fusal by justices to make an order for the disallowance of a particular item in the accounts of a surveyor of highways is ground for an appeal under the statute. Townsend v. Eead, 10 C. B., N. S. 308 ; 30 L. J., C. P. 320 ; Cox, M. 0. 3. And so is a refusal of jus- tices to order payment of money under a contribution order. City of London Union v. Acocks, 8 C. B., N. S. ll&12Vio. 760; Cox, M. C. 3; non obstante 11 & 12 Vic. c. 43, 0. 43, B. 35. g_ 35 _ rpjj^g court, however, wiU not entertain, under this statute, an appeal from the decision of a magis- trate touching a question of fact ; so that where the 18 & 19 Vic. magistrate had, upon the 5th rule of 18 & 19 Vie. c. c. 122, S.26. 122, s. 26, decided that a row of houses, forming part of a line of thoroughfare, was a street, the judges declined to interfere mth his decision. Xewman v. Bakei; 8 C. B., N. S. 200; Cox, M. C. 189; R. v. Yeomans, 1 L. T., N. S. 369. But contra where the question was whether a house was one "forming Digitized by Microsoft® APPEAL. 165 part of a street " -nitliin sect. 105, and whetlier a school board were " owners" within sect. 250. Cf. School Board of London v. St. Mary's, Islington, 1 Q. B. Div. 65. As to fact, it appears that the court above wiU not interfere where it sees any evidence upon which the justices could have pro- ceeded. Cornwell v. Sanders, 3 B. & 8. 206; Cox, M. 0. 135. Where, by the rules of a friendly society, disputes between the society and a member are to be referred to justices, such justices have no power to state a case under this act. Callaghan v. Bolliven, 38 L. J., M. C. 110; overruling R. v. Lamharde, alias Watts V. Justices of Kent, L. E., 1 Q. B. 388 ; 35 L. J., M. C. 190. Semble, that where the decision of the justices is expressed to be binding, the 20 & 21 Yic. c. 43, does not apply. Per Montague Smith, J., 38 L. J., M. C. 111. Nor does the act apply where an information has been dismissed at once on the ground that the apprehension was illegal. Williamson v. Bilborough, Oka, Mag. Syn. 1219, n. 28; J. P. 745. The case of West v. Potts, 40 L. J., M. C. 1, n. (1) (arising out of the refusal of justices to grant a certificate for a beerhouse), which stood for argu- ment in the Queen's Bench, was ordered to be struck out of the paper, on the attention of the court being directed to the fact that the justices had no power to state it, for the reason that the 20 & 21 Yic. c. 43, applies only to matters determined by them on an information or complaint. But see Garatty v. Potts, 40 L. J., M. 0. 1; 23 L. T., N. 8. 410. Justices refusing an order to authorize an entry upon pre- mises under 38 & 39 Vic. c.- 55, s. 305, will not be required to state a case. Diss Urban Sanitary Authority t. Aldrich, 8 W. N. 46 ; 2 Q. B. Div. 179. Nor wUl they be required, under sect. 6, to state a case where they have ordered payment of a special district rate under a local improvement act, incor- porating the repealed Public Health Act (11 & 12 Vic. c. 63), by sect. 135 of which an appeal to the quarter sessions against the rate was given. 7?. v. Neioman and another. Justices of Gloucestershire, 29 L. J. 156, Q.B., M.C.I 17; Cox, M. C. 273, 274. In that ease, A. was assessed to a sewers' rate made under a local act. He refused to pay the sum at which it was assessed ; Digitized by Microsoft® 166 APPENDIX II. c. 43, s. 2. and, upon the hearing of a complaint against him for such refusal, he oh j acted that he was improperly- rated, inasmuch as he derived no benefit from the sewers made under the local act. The justices ordered him to pay the rate ; thereupon he required them to state a case under 20 & 21 Vic. c. 43. Held, that they had no jurisdiction to do so, for that the only question was as to the validity of the rate, and that was the subject for an appeal to the sessions. The fact that the law has provided an appeal to quarter sessions must not be regarded as the reason why the justices in the above instance were not required to state a case, but rather, as explained in Wheeler v. Overseers of Burmington (where justices in special session had been hearing an appeal against a poor rate), the fact that the tribunal required to state a ease was not a tribunal deciding on an "in- 20&2iy^c. formation or complaint" (sect. 2). 29 L. J., M. C. 175, n. 5. So in ^a;^a»-fe Jfay, 31 L. J.,M. C. 161, where it was held that power given to justices under two local acts to enforce an apparently valid rate, did not empower them to "determine" anything, so as to give occasion for a case stated under 20 & 21 Vic. c. 43. So in Walker y. G. W. Eailwatj, 29 L. J., M. C. 107, where the justices had refused to issue a dis- tress warrant for a highway rate. And in Sweetman V. Guest, L. E., 3 Q. B. 262; 37 L. J., M. C. 60, where proceedings arose in reference to a borough rate made by virtue of a local act, and the question was whether a distress warrant was an order for the payment of money within 11 & 12 Vic. c. 43, s. 8, so as to bring the case within the time limitation men- tioned in 11 & 12 Vic. c. 43, s. 11 : the Queen's Bench, while declining to interfere with the decision, appeared to think that when the function of the justices is merely ministerial the 20 & 21 Vic. c. 43, does not apply.* As to consent in such cases, see Sparroiv v. Impington, 29 L. J., M. C. 176, u. See also the observations of "VVilles, J., in Power 11 & 12 Vic. c. 43, ss. 8, 11. * Cf. the two reports in Q. B. (L. E.) and L. J. The former queries whether the case came within 20 & 21 Vie. c. 43; the latter says, scmhle that it did. This point was not decided, as the com't held with respondent, but I think that they leaned Digitized by Microsoft® APPEAL. y. Wigmore, L. E., 7 0. P. 388. In fact, the 14th sect, of the 20 & 21 Vic. c. 43 {post), seems to assume that the appellant may choose -whether he ■will make use of that statute, or of any right of appeal to quarter sessions which he may possess. Further, it appears from R. v. Justices of the West Riding, that a certiorari and a special case may be concurrent. A. was convicted for having woollen materials suspected to have been embezzled on his premises ; he applied for and obtained a case for the opinion of the court, which was in due course entered in the crown paper; he afterwards, but before the argument of the case, ascertained that the convicting justices were con- nected with the woollen trade, contrary to statute. Under the above circumstances the court granted a rule nisi for certiorari, to be heard at the same time as the special case. 2 L. T. Eep. 459 (Q. B.).* The words "within three days" must be strictly construed, so that Sunday is not to be excluded; and if Sunday should be the last day of the three, Monday will be too late to apply for a case. Peacock v. R., 4 0. B., N. S. 264; 27 L. J. 224, 0. P. ; Cox, M. C. 2, 162; Wynne v. Ronaldson, 12 L. T., N. S. 711. And the same rule applies to the transmission of the case to the court. Pennell v. Churchwardens of Ux- hridge, 31 L. J., M. C. 92 ; 8 Jur., N. S. 99; 10 W. E. 319. The written notice of appeal, together with a copy of the case, must be given to the re- spondent before the case is transferred to the superior court. Ashdown v. Curtis, 31 L. J., M. C. 216 ; 8 Jut., N. S. 511; 10 W. E. 667. A copy of the case alone is not sufficient. Little v. Donelly, 5 Ir. E. (0. L.), Q. B. 1. The transmission of the case and the giving notice within the time named are con- ditions precedent to the right of the appellant to have the case heard, and an objection arising from the omission to do so cannot be waived. Morgan v. Edwards, 5 H. & N. 415; 29 L. J., M. 0. 108; 167 20 & 21 Vic. c. 43, s. 14. Certiorari granted at the same time as special case. Time of making ap- plication for and trans- mitting case. Giving notice. * A curious point arose in Wakefield L. B. S. v. Sail. Co. The justices having declined jurisdiction on the ground of interest, stated a case as to whether the interest in question amounted to a disqualification. The Queen's Bench held that as they had decided nothing it could not interfere. 30 J. P. 389, 628. Digitized by Microsoft® 168 APPENDIX II. 20&2IVio. 0. 43, s. 3. Security and notice to be given by the appellant. r. & H. Dig. 5119 ; Woodhouse v. Woods, 29 L. J., M. 0. 149; 6 Jur., N. S. 421; F. & H. Dig. 5119, 5120. Whether it would not be sufficient if the appellant had done all in his power to comply with the statute, though he failed through the respondent keeping out of the way, quare ? Morgan v. Edioards, supra (cf. Syred v. Carruthers, infra). And if after the expiration of three days a case remains in the appellant's hands, and he takes it back to the justices, they have no power of amending it, and if they do so in fact, the appellant does not gain a further period of three days from the date of the amendment for transmitting the case to the court. Gloucester Board of Health v. Chandler, 32 L. J., M. C. 66. And it does not help the appellant, that delay was caused not by his laches, but by the fault of his agent. Banks v. Goodwin, 3 B. & S. 548 ; 32 L. J., M. C. 87. "Where, however, an appellant's London attorneys instructed a country attorney to appear for the appellant at the hearing before justices in the country, and the appellant himself applied to the justices to state and sign a case, and a case being granted was sent to the country attorney, it was held that the three days must be calculated from the time the country attorney received it, provided his authority had not been revoked. Pennell v. CJiurchwardens of Uxbridge, 31 L. J., M. C. 92 ; 8 Jur., N. S. 99. "Where the respondent not being to be found, notice of appeal and a copy of the case were served on his attorney within three days after the appellant re- ceived the case, and they afterwards and before hearing came to respondent's house, and affidavits to this effect were filed before the hearing, it was held that the statute had been sufficiently complied with. Syred v. Carruthers, E., B. & E. 469 ; 27 L. J., M. 0. 273. By sect. 3, the appellant, at the time of making such application, and before a case shall be stated and delivered to him by the justice or justices, shall in every instance enter into a recognizance, before such justice or justices, or any one or more of them, or any other justice exercising the same jurisdiction, with or without surety or sureties, and in such sum as to the justice or justices shall seem meet, con- Digitized by Microsoft® APPEAL. 169 ditioned to prosecute without delay such appeal, and to submit to the judgment of the superior court, and pay such costs as may be 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 clerk to the said justice or justices his fees for and in respect of the case and recognizances, and any other fees to which such clerk shall be entitled. * * * And the appellant, if then in custody, shall be liberated upon the recognizance being further conditioned for his appearance before the same justice or justices, or, if that is impracti- cable, before some other justice or justices exercising the same jurisdiction who shall be then sitting, within ten days after the judgment of the superior court shall have been given, to abide such judgment, unless the determination appealed against be reversed. The important words regarding time in this section appear to be "before a case shall be stated." In Chapman v. Robinson, 1 E. & B. 25 ; 28 L. J., 69 Q. B. ; Cox, M. C. 149, it was settled, that appellant is not bound to enter into his recognizance at the time of making his application, provided he does so within three days from the determination and before a case is stated and delivered to him ; and in Stan- hope v. Thorsby, L. E., 1 C. P. 423 ; 35 L. J., M. 0. i82; Cox, M. C. 18; 14 L. T., N. S. 332, that the recognizance need not be given within the three days mentioned in sect. 2, and that it is enough if this is done before the case is given out by the justices. Johnson v. Simpson, 1 L. T., N. S. 60, seems to be overruled by the latter ease. If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the appellant, sign and deliver to Tiim a certificate of such refusal ; provided, that the justice or justices shaU not refuse to state a case where application for that purpose is made to them by or under the direction of her Majesty's attorney- general for England or Ireland, as the case may be (sect. 4). Where the justice or justices shall refuse to state a case as aforesaid, it shall be lawful for the Time. 20 & 21 Vic. c. 43, ss. 4, 5. 8. Justices may refuse a case where they think the applica- tion friyolous. Where the justices Digitized by Microsoft® 170 APPENDIX 11. refuse, the Court of Queen's Bench may by rule order a Case to he stated. 2 & 3 Vic. 0. 84, s. 1. appellant to apply to the Coiirt of Queen's Bencli, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also upon the respondent, to show cause why such case shovild not be stated ; and the said court may make the same absolute or discharge it, with or without payment of costs, as to the court shall seem meet, and the justice or justices upon being served with such rule absolute shall state a case accordingly, upon the appellant entering into such recognizance as is hereinbefore provided (sect. 5). And semhle, that a judge at chambers has in this respect the same power as one in court (sect. 8 infra). Ex parte Smith, 27 L. J.* M. C. 186. Where a defendant was charged with obstructing the works of a local board of health, and the question was raised whether he was entitled to have the case dismissed because the obstruction took place in as- sertion of a private right, it was held that the justices were not justified in refusing as frivolous an appli- cation to state a case. R. v. Pollard, 14 L. T., N. S. 599; Cox, M. 0. 167. But where a claim of right having been set up which the justices thought bond fide, they refused to adjudicate, the court above intimated that they would have been justified in treating an application for a case as frivolous. Crich V. Crick, 22 J. P. 368; Oke, Mag. Syn. 221. A magistrate, however, cannot refuse to state a case on the ground that an objection has not been formally brought to his notice, where the objection is of such a kind as goes to the root of the whole matter before him for adjudication, and one therefore which he must be presumed to have known. Ex parte Marh- ham, 21 L. T., N. S. 748, Avhere, however, costs were refused. Seejuos;;, "Costs." InR.Y.Justlcesof Maccles- field, 2 L. T., N. E. 953; Cox, M. C. 161, the coui-t above refused a rule to justices ordering them to state a special case for the opinion of the court where the objection was that they had improperly received evidence. To enable the court to interfere, it must appear that the determination of the justices was wrong. And cf. Sparroiv v. Impington (Overseers), 6 Jur., N. S., Q. B. 953, whore an objection to a con- tribution order, under 2 & 3 "\'ic. c. 8-1, s. 1, on the Digitized by Microsoft® APPEAL. 171 ground tliat the section was retrospective only, and did not include the balance alleged to be due from the parish to the union, was held not to be a fit question for a case under 20 & 21 Vic. c. 43. Whether under sect. 5, in conjunction with sect. 8, a judge at chambers can issue a mandamus to state a case, qucBre? Cf. per Channel, B., in Ex parte Smith, 27 L. J., M. C. 188. The words of the 8th section are as follows : — The authority and jurisdiction hereby vested in a superior court for the opinion of which a case is stated under this act shall and may (subject to any rules and orders of such court in relation thereto) be exercised by a judge of such court sitting in ehainbers, and as well in vacation as in term time. Semble, that under this section a judge at chambers can grant an order upon justices to state a case. Ex parte Smith, 27 L. J., M. C. 186. The power, however," is still confined to the Queen's Bench Divi- sion, non obstante 36 & 37 Vic. c. 66 (J. A., 1873), s. 6. Cf. sect. 34 of J. A., 1873, and Re Ellershaw, Ex parte Longhottom, L. E., 1 Q. B. D. 481. By sect. 6, the court to which a case is transmitted shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm or amend the determination in respect of which the ease has been stated, or remit the matter to the justice or justices, with the opinion of the court thereon, or may make such other order in relation to the matter, and may make such orders as to costs, as to the court may seem fit; and all such orders shall be final and conclusive on all parties : provided always, that no justice or justices of the peace who shall state and deliver a case in pursuance of this act shall be liable to any costs in respect or by reason of such appeal against his or their determination. It is proper, even where the respondent does not ap- pear, for the appellant to be heard against the decision of the magistrates. Syred\. Carruthcrs, E., B. & E. 469 ; 27 L. J., M. 0. 273. • It was formerly ruled that the court would not, at the instance of justices, pronounce any opinion upon a case, though stated pursuant to the act, 20 & 21 Vic. c. 43, where the appellant and respondent both declined to appear. Walters v. Wil- 20 & 21 Vie. 0.43, ss. 5, 8. Qumre, how far powers of superior court may te exer- cised ty a judge at cham'bers. 36 & 37 Vic. c. 66, ss. 5, 34. 20 & 21 Vic. c. 43, s. 6. Superior court to determine the ques- tions on the case. Ks deci- sions to be final. Digitized by Microsoft® 172 APPENDIX II. ]2&13Vic. c. 45, s. 1. Hams, 9 0. B., N. S. 179; but cf. 35 & 36 Vic. c. 26, s. 2, post, p. 193. From some of the earlier decisions it might appear that the appellant was prevented from raising any point which had not been raised before the justices, as by 12 & 13 Vic. c. 45, s. 1. St. James', Westminster v. St. Mary's, Battersea, 6 C. B., N. S. 878 ; 29 L. J., M. 0. 26; Marshall v. Smith, L. E., 8 C. P. 416; 24 L. J., M. C. 108; Purkiss y. Huxtahle, 1 E. & E. 781 ; Cox, M. 0. 3. In the last case appellant was convicted of " knowingly" permitting persons of bad character to assemble in his house. On the appeal it was attempted to traverse his knowledge of their character, but Crompton, J., said that point not having been taken before, could not be raised; this question, however, was not argued, as the decision was given for the appellant upon other grounds. And see Motterham v. E. C. Rail. Co., 6 Jur., N. S. 853 ; Cox, M. C. iii., 116. But previous decisions must now be taken as qualified by Knight v. Halliwell, L. E., 9 Q. B. 414. In that case, Cockburn, 0. J., and Lush and Blackburn, JJ., held that the court might take notice of new points of law, provided they arose " on the case as stated," the words of the 6th section {supra) comprehending all "questions of law arising thereon," 20&21Vic. Blackburn distinguishing eases under 20 & 21 Vic. c. 43, s. 6, from questions under 12 & 13 Vic. c. 45, s. 1, and pointing out that in Purkiss v. Huxtahle, supra, the new point which was not argued was one of fact, as to which evidence might have been adduced, if it had been taken at the hearing before the justices. Semble, that the superior court has by this section power to draw up an order under one section of an act, where the justices have erroneously made one under another section. See Shackell v. West, 29 L. J. 86 (Q. B. ) ; Cox, M. C. 220. There the justices having made an order for the pa;\Tnent of the value of a lost pledge imder sect. 14 of the Pawnbrokers' Act (39 & 40 Geo. 3, s. 99, repealed), it was held, on a case stated, that the 14th section did not apply, and that the order should have been made under the 24th section : the court, however, though considering that it had power so to draw up the order, declined to do so, and remitted the case to the justices for hearing, with a view to the c. 43, s. 6. 39&40 Geo. 3, c. 99, S3. 14, 24, 35 (repealed). Digitized by Microsoft® APPEAL. 173 24tli section, in order not to deprive the appellant of his appeal to quarter sessions under sect. 35 of the same act. By sect. 7, the court for the opinion of which a case is stated shall have power, if they think fit, to cause the case to be sent back for amendment, and thereupon the same shall be amended accordingly, and judgment shall be delivered after it shaU. have been amended. A case wOl not be sent back on the mere suggestion of the appellant at the argument that there has been misconduct or negligence in drawing it up. Townsend Y.Read, 10 C. B., N. S.308; SOL. J. 223(0. P.). "Where the special case appears defective, the proper course (unless there appears to have been something equi- valent to a refusal to state a case properly) for an appellant, who desires to have the grounds of the justices' decision more fully stated, is to apply to the court at the time of the argument to send the case back for amendment. Christie v. St. Luke, Chelsea {Guardians of), 8 E. & B. 992; Gox, M. 0. 161. In that instance, a case having been stated, a rule obtained by the appellant, caUing on the respondents to show cause why it should not be sent back to the justices to set forth the grounds of the determination more fully, was discharged. But in Yorkshire Tire and Axle Co. v. Rotherham Local Board of Health, where justices omitted to set out a material document which, as appeared by affidavit, was in evidence before them, the court sent the case back to them for amend- ment before it came on for argument. 4 C. B., N. S. 352 ; 27 L. J., C. P. 235. And a similar course was adopted in Uncles Tf.Att.-Gen., 7 Ir. E., C. L. 462, a case decided under 21 & 22 Vic. c. 43, s. 7, which is precisely similar to the 7th section of the English act, although no application had been made to the justices to amend. By sect. 11 the superior courts of law may from time to time, and as often as they shall see occasion, make and alter rules and orders to regulate the practice and proceedings in reference to the cases hereinbefore mentioned. In Michaelmas Teim, 1857, the 15th and 16th Practice Eules of Hilary Term, 1853, were inoor- 20 & 21 Vic. 0. 43, s. 7. Case may be sent back for amend- ment. 21 & 22 Vic. c 43, s. 7. 20 & 21 Vic. c. 43, ss. 8, 11. Superior courts may make rules for pro- ceedings. Eules, 1853, 1857. Digitized by Microsoft® 174 APPENDIX II. poratecl with this act, and at tlie same time an additional rule was made to the effect that in cases where the appeal is to be heard before a judge at chambers (see sect. 8, ante, pp. 170, 171), the appellant shall obtain an appointment for such hearing, and shall forthwith give notice thereof to the respondent, and shall, four clear days before the day appointed for the hearing, deliver at the judge's chambers a Eule, 1862. copy of the appeal. In Hilary Term, 1862, it was directed by a new rule that every special case .... set down in any of the superior courts of common law shall be divided into paragraphs, which, as nearly as may be, shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively, and that the masters on Costs. taxation shall not allow the costs of drawing and copying any special case .... not in substance in compliance with this rule, without the special order of this court. See Hadley v. Perks, where it was held that this rule appKed to documents set out at length in an appendix to a special case. L. E., 1 Q. B. 444; SSL. J. 160, Q. B. ; Cox, M. 0. 197, 198. The question of when and how far the superior court will award, or has the power of awarding, costs on a special case under 20 & 21 Vic. c. 43, has given rise to some discussion. In making absolute a rule to compel a magistrate to state a case under the '20 & 21 Vic. circumstances in Ex parte Marhham {ante, ss. 4, 5, c. 43, as. 4, pp. 169, 170), the court refused to allow the appel- lant the costs of the rule because he had not raised the objection distinctly before the magistrate. Ex parte Marhham, 21 L. T., N. S. 748. See also Sfinson V. Browning, 12 Jur., N. S. 262. In Ex parte Mark- ham the application was made under sect. 5 (see ante, p. 169), which expressly gives the superior court authority to dispose of costs. By the first part of sect. 6 {ante, p. 171), the court may make such orders as to costs as to the court may seem fit; and see also sect. 3, ante, p. 168. But it seems that 20 & 21 Vic. the 3rd sect., requiring appellant to enter into a re- c. 43, SB. 3, cognizance to pay such costs as may be awarded, and the latter part of the 6th sect., directing that no justice who shall state, &c., shall be liable to any Digitized by Microsoft® APPEAL. 175 costs, &c., do not give power to a-(Fard costs to tlie justices. Luton Local Board of Health v. Dams, 6 Jut. 580. OUter, per Blackburn : " The provisions of the statute apply only where there has been a deter- mination by the justices." lUd. 582. N.B.— In this instance the justices had employed counsel to draw the case. But where a case was sent back to be re-stated and judgment was given for the appel- lant with costs, it was held that the master was right in allowing to the appellant the cost of preferriag the case beyond the fees allowed to the clerk of the justices by s. 3. Olover v. Booth, 2 B. & S. 807 ; 31 L. J., M. C. 270. In Moore v. Smith, 5 Jva\, N. S. 892 ;_ 28 L. J., M. 0. 126, the court, in confirming a conviction on an information at suit of an excise officer, awarded costs to the officer on the ground that the statute includes cases in which the crown is directly or indirectly a party. The general rule appears to be that laid down in LeeY. Strain, 28 L.J., M. 0. 221, which is that costs foUow the judgment. See also VenaUes v. Hardman, 1 E. & E. 79 ; 28 L. J., M. 0. 126. And where a case presenting no question of law was stated under s. 2, the court gave costs. against the appellant. Newman v. Baker, 8 0. B., N. S. 200 ; but see Peacock v. R., where the court held that not having power to hear an appeal under the act, they had not power to give costs. 4 C. B., N. S. 264; 27 L. J. 224 (C. P.). So in Little y. Donelly, 5 Ir. E., C. L., Q. B. 1, the effect of the decision was that where an order appears to decide that an appeal is not properly before the court, costs cannot be given against the appellant. But in the Great Northern and London and North Western Joint Committee, app. v. Inett, resp., 2 Q. B. Div. 284, the court (Coekburn, 0. J. and Mellor, J.), in striking out of the paper an appeal where the appellant had not complied with the conditions re- quired by 20 & 21 Vic. c. 43, refused to follow the ruling in Peacock v. R. (4 0. B., N. S. 264) as to costs, and made the rule absolute with costs. The efltect of 20 & 21 Vic. c. 43, ss. 3, 6, has been 20 & 21 Vie. to give the 'superior court a larger discretion in g- *^' ^^- ^' respect of costs than it possessed formerly. Cf . R. v. Digitized by Microsoft® 176 APPENDIX II. 20 & 21 Vic. c. 43, s. 9. After the decision of superior court, jus- tices may issue war- rants. Hornsea, -wliioh was decided under 11 & 12 Tic. c. 78. D. & P. C. C. 291. Semhle, however, that on appeal under 20 & 21 Vic. c. 43, it is the practice to allow the costs of the proceedings in the court below to remain in the discretion of the justices. Cook v. Montague, 21 W. E. 670. But from R. v. Glangastin Justices (a case of appeal to quarter sessions) it seems that the suhstitution of a general rule for the exercise of special discretion is not favoured ; and in that case, where it appeared by affidavit that the jus- tices at quarter sessions had proceeded by a hard and fast rule of sessions, a mandamus issued to compel them to consider the case on its own merits. See 19 L. J., M. C. 172. The general rule that the costs follow the judgment is subject to some quali- fication, as e. g. where the question submitted to the court above is fairly arguable. Caswell v. Cook, 12 0. B., N. S. 242. And where the respondent did not appear, costs were not given to the appellant. Lee V. Stair, 6 Jur., N. S. 846; but see contra, Wednes- hury Local Board of Health v. Stevenson, 33 L. J., M. C. Ill: 10 Jur., N. S. 151. The court will not entertain an application for costs of an appeal against a decision of a magistrate under the 20 & 21 Vic. c. 43, in the term after that in which judgment is pronounced. And, semble, that the application for costs should be made imme- diately upon the disposal of the case. Budenhurg v. Roberts, 2 C. P. (L. E.) 292. Where, on an appeal under 20 & 21 Vic. o. 43, the court gave judgment for the appellant "with costs" (which the master of the crown office interpreted to mean "costs of the appeal"), and the appellant four terms afterwards moved to amend by allowing the costs of the proceedings in the court below, it was held that the application came too late. Cook V. Montague, 21 W. E. 670. By s. 9, after the decision of the superior court in re- lation to any case stated for their opinion under this act, the justice or justices in relation to whose determina- tion the case has been stated, or any other justice or justices of the peace exercising the same jurisdiction, shall have the same authority to enforce any conviction or order, which may have been affirmed, amended or Digitized by Microsoft® APPEAL. 177 made by sucli superior court, as the justice or justices ■who originally decided the case would have had to enforce his or their determination if the same had not heen appealed against ; and no action or proceeding ■whatsoever shall be commenced or had against the justice or justices for enforcing such conviction or order, by reason of any defect in the same respectively. By sect. 13, in all cases where the conditions, or 20 & 21 Vic. any of them, in the said recognizance mentioned, shall "■ *^' ^- ^^• not have been complied with, the justice or justices ^^^es— who shall have taken the same, or any other justice how to be or justices, shall certify upon the back of the recog- enforced, nizance in what respect the conditions thereof have not been observed, and transmit the same to the clerk of the peace of the county, riding, division, liberty, ciiy, borough or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances forfeited at quarter sessions may now by law be enforced, and such certi- ficate shall be deemed sufficient primd facie evidence of the said recognizance having been forfeited : pro- vided, that where any such recognizances shall have been taken in England before a magistrate of the poUce courts of the metropolis, or by any stipendiary magistrate, all sums of money in which any person or persons shall be therein bound may, if the said magis- trate shall think fit, be levied, upon such recognizance being forfeited, and on nonpayment thereof, together with the costs of the proceedings to enforce such payment, in the same manner as a pohce magistrate of the metropolis is now empowered to recover any penalty, forfeiture or sum of money by 2 & 3 Vic. 2 & 3 Vio. c. 71, s. 45. Erom a case referred to in note 31, "■ '^^' ^- *^- p. 226, vol. 1 of Oke, Mag. Syn., 11th ed., i.e. Ex parte Edmonds, 23 J. P. 324, it seems that notice need not be given to the party of intention to apply to the quarter sessions to estreat the recognizances. Of. 3 Geo. 4, c. 46, s. 2. 3 Geo 4 Though, when an appeal to quarter sessions is • ' "' • given, a party is not thereby prevented from stating a case under 20 & 21 Vic. c. 43, he cannot proceed in 20&21Vio. both ways. By sect. 14 of the last-named statute, any ^p*p^u^jj\*- person who shall appeal under the provisions of this xaAw this G. N Digitized by Microsoft® 178 APPENDIX II. act not to be allowed to appeal to quarter Bessions. 20 & 21 Vie. c. 43, s. 10. Certiorari not to be required for pro- ceedings under this act. Eeviewing decisions by means of cer- Uorari. Sco^e of thein- quiay. 20 & 21 Vic. 0. 43, s. 10. act against any determination of a justice or justices of the peace from wMcli he is by law entitled to appeal to the quarter sessions, shall be taken to have aban- doned such last-mentioned right of appeal, finally and conclusively, and to aU intents and purposes. By sect. 10, no writ of certiorari or other writ shall be required for the removal of any conviction, order or other determination in relation to which a case is stated under this act, or otherwise, for obtaining the judgment or determination of the superior court on such case under this act. But the Court of Appeal cannot hear an appeal from a decision of justices in a criminal matter, though on a case stated under 20 & 21 Vic. c. 43. Blahe v. Beech, 2 Ex. Div. 336; 36 L. T., N. S. 723 ; and me, post, R. v. Fletcher, Boden V. Lelievre, p. 187, and R. v. Steel, p. 198. Another mode of reviewing the decisions of justices is certiorari, which was in fact the only direct mode in which the superior courts could review them before the passing of 20 & 21 Vic. c. 43. Paley, Sum. Con. (4th ed.), 350, &c. The writ of certiorari does not go as of right, save on the application of the attorney- general in his official capacity; but if a person directly aggrieved by the order of an inferior tribunal can show that it had no jurisdiction, or had in substance exceeded its jurisdiction, or was improperly constituted, the general course is to award the writ as of common right, unless the applicant has by his conduct forfeited that right, or rendered it inexpedient that the court should interfere. Re Lord ListowelVs Fishery, 9 Ir. C. L., Q. B. 46; and see R. v. Surrey Justices, L. E,, 6 Q. B. 466; 39 L. J., M. C. 145. The Court of Queen's Bench, out of which the writ issues, will not, however, in general take cognizance of any fact not apparent on the conviction. R. v. Liston, 5 T. E. 338 ; F. & H. Dig. 1514. "Where the jurisdiction of the justices is questioned, the test is whether they had power to enter upon the inqidry, not whether their conclusions were correct. R. v. Bolton, 1 Q. B. 66; 4 P. & D. 679; 10 L. J., M. C. 51. The judgment in the latter case, delivered 1841, (and therefore before the passing of 20 & 21 Vic. c. 43, which by s. 10 renders certiorari uimecessary for brinainar ub a case decided bv maaistratesV con. Digitized by Microsoft® APPEAL. 179 tains an expositibn by Denman, C. J., of the circum- stances in wHoh the decision of a magistrate as to facts may be impeached by affidavits before one of the superior courts of common law. His lordship said: — -"When the charge laid before a magis- trate as stated in the information does not amount in la-w to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give hiTn jurisdiction ; the convic- tion would be bad on the face of the proceedings when they were returned to us. So, if the charge being really insufficient, the magistrate had mis- stated it, iu drawing up the proceedings so that they would appear to be regular, it would be clearly com- petent to the defendant to show to us by affidavits what the real charge was, and that appeariag to have been insufficient we should quash the conviction. In both the oases last put a charge has been presented to the magistrate over which he has no jurisdiction, he has therefore no right to entertain the question . . : and his proceeding to a conclusion would not give him jurisdiction. But as ... we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It may be pbserved, however, here that we receive them not to show that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry." 10 L. J., M. 0. 51. Where A., having laid hands on B. indecently, the justices convicted him of a common assault, and a certiorari was moved for on the ground that the assault being coupled with a felonious attempt was taken out of their jurisdiction by 9 Geo. 4, c. 3, s. 29 (now repealed), the application was dismissed on the ground that the magistrates were judges of the evidence, that it did not show a felonious intent, and that no excess of jurisdiction appeared upon the conviction. R. v. , 1 B. & Ad. 382. It has become very common for certiorari to be, as it is called " taken away" by statute. When this is the case the superior court is not absolutely deprived of the power to issue the writ even on behaU of a subject, but its action is controlled and limited, and N 2 Digitized by Microsoft® 180 APPENDIX II. Certiorari not taken away by inference. At the ap- plication of the crown. Express words do it cannot .quasli tlie order removed by certiorari, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made the order, or of manifest fraud in the party procuring it. Co- lonial Bank of Australasia \. Willan, L. E., 5 P. C. 417; 43 L. J., P. 0. 39. The power of granting a certiorari cannot be taken away infer entiaUy even by a statute which, while giving justices power in certain cases, says "no other court whatsoever shall inter- meddle with any cause or causes of appeal upon this act; but they shall be finally determined in the quarter sessions only." R. v. Morley, 2 Burr. 1041. And where a statute, giving an appeal from a magis- trate to the quarter sessions, declares that the latter shall finally determine the matter, the right of cer- tiorari is nevertheless not taken away. R. v. Jukes, 8 T. E. 642; 1 F. & H. 1518. Nor does a merely general reference in a later statute to a previous statute in which certiorari is actually taken away suffice to take it away as regards convictions under the subsequent act. R. V. Terret, 2 T. E. 734 ; R. v. Kaye, 1 D. & E. 436. But where the later act expressly embodies in itself all the provisions of a former one certiorari, is taken away by the subsequent statute, if it was taken away by the earlier one. R. v. Yorkshire ( W. R.) Justices, 3 N. & M. 802. Certiorari, which is granted or refused at the discretion of the court, issues as of course when applied for by the crown, either through the attorney-general or by a private prosecutor, though in the latter case it may be sus- pended on cause shown. Paley, 4th ed., 358; 2 Hawk. P. C. 27. And the constitutional construction of the theory of prosecution applies to prevent the taking away of certiorari from prosecutors, even where it has been taken away in general terms by statute ; for the crown does not lose its rights unless it is expressly named, or a distinct intention to that effect appears on the face of the statute. R. v. , 2 Ghitty, 136 ; R. v. Allen, 15 East, 333 ; R. v. Davies, 5 T. E. 626 ; R. v. Boulthee, 4 Ad. & EU. 498 ; 6 N. & M. 26. See also R. v. Hester, 4 D. P. 0. 589. And even though these conditions be complied Digitized by Microsoft® APPEAL, 181 Tritli, and even wliere express ■words liave been used, not operate a certiorari may be granted at suit of the defendant *° ^^^^ . as -well as of the prosecutor where the inferior court 'twrlrni has exceeded its jurisdiction, for the statute taking there has away the certiorari must be understood to assume ^T^ exoess that the order has been made by a proper authority; aioiio™.' and therefore it does not apply where the decision itself is impeached as being invalid for want of jurisdiction, because then the proceedings are not in truth under the statute. R. v. Berkley, 1 Kenyon, 99 ; Chitty Stat., 3rd ed., vol. i., p. 471, n. (J); and see supra, per Denman, 0. J., R. v. Bolton. So where, under a repealed act (13 Geo. 3, c. 78, which by sect. 80 took away certiorari), justices at petty ses- sions made an order for the allowance of the accounts of a surveyor of highways, which accounts had not been previously verified before one justice pursuant to sect. 48, it was held that their order was not a proceeding under the act, and consequently that cer- tiorari lay. R. V. Somersetshire Justices, 6 D. & E. 469. And where a magistrate convicted under a bye-law (allowed by a Secretary of State pursuant to 11 & 12 Vic. c. 63, s. 55, repealed) for the removal of dust, ashes, rubbish, filth, manure, dung, and soil (the thing which the defendant had failed to remove being snow), it was held that the magistrate had exceeded his jurisdiction, and that, therefore, a cer- tiorari might issue though taken away by sect. 137. R. V. Warwickshire Justices, 6 E. & B. 837; 25 L. J., M. 0. 119; and see R. v. St. Albans'' Justices, 22 L. J., M. 0. 142. "The following objections have been held not to go to the jurisdiction, viz.: — that the defendant was convicted on a summons giving an unreasonably short notice, and in the absence of himself, or anyone on his behalf, except an attorney authorized to apply only for an adjournment; and that the conviction took place without proof of ser- vice of the summons, and without any evidence of the facts charged, the justices having jurisdiction over the subject matter. Ex parte Hopwood, 15 Q. B. 127. So where costs were erroneously ordered to be paid to the clerk of the peace, it was held to be a defect in form only. R. v. Binney, 1 E. & B. 810; 22 L. J., Digitized by Microsoft® 182 APPENDIX II. Or fraud. Defective jurisdic- tion. Groimds of applica- tion. M. C. 127." See Paley, 4t]i ed., 357, n. (5); see also R. V. Cheltenham Commrs., K. B. 467. Nor will express words take away certiorari if tlie conviction has been obtained by fraud. R. v. Gillyard, 17 L. J., M. 0. 153 ; and see Colonial Banh of Australasia V. Willan, L. E., 5 P. C. 417; 43 L. J., P. C. 39. A certiorari for defect of jurisdiction will not be granted if tlie application rests solely on the ground that the judge, &c. has erroneously found a fact which was essential to the validity of his order, but which he was competent to try. Colonial Banh of Austral- asia V. Willan, L. E., 5 P. C. 417; 43 L. J., P. C. 39. A certiorari will not be granted to remove an erroneous order of sessions at the instance of the party in whose favour the error was made {R. v. Derbyshire Justices, L. E., 1 Q. B. 239 ; 1 P. &H. Dig. 1516); but the attorney-general may assist aggrieved defendants by applying for the certiorari as on behalf of the crown. 15 East, 337; Paley, 4th ed., 357. A defendant applying for certiorari ought to show by affidavit some reasons why it should be granted. Paley, 4th ed., 359; 2 Hawk. P. 0. 27; R. v. Bass, 5 1. R. 251. "Where the application rests on the ground of defective jurisdiction, matters on which the defect depends may be apparent on the face of the proceedings, or may be brought before the superior court by affidavit, but they must be extrinsic to the jurisdiction impeached. Colonial Banh of Australasia v. Willan, L. E., 5 P. C. 417; 43 L. J., P. 0. 39. Objections of this land may be founded on the character and constitution of the inferior court, the nature of the subject matter of the inquiry, or the absence of some preliminary proceeding which was necessary to give jurisdiction to the inferior court. Ibid. By Reg. Gen. Pas., 1 Ann. B. E., 1 Salk. 146 (147), certiorari will not be granted where the law has given a right of appeal. In R. v. Middlesex Justices, 1 P. &_D. 402; 9 A. & E. 540, an order of sessions confirming a rate was removed by certiorari and quashed. A subsequent rate, open to the same objec- tion, was made by the sessions pending the argument Digitized by Microsoft® APPEAL. 183 of the ease, but no appeal was made against it. The Queen's Bench held that as the objection was made express matter for an appeal to the sessions, and the rate was not bad on the face of it, the appellants were not entitled to have it quashed on certiorari. And especially where an appeal against an order of removal has been tried with the acquiescence of the appellants and respondents and the order quashed, a certiorari will not be granted, even although the respondents received no notice of trial as required by a rule of cotirt of the sessions, and were consequently quite unprepared. R. v. Yorkshire {East Riding) Justices, 3 N. & M. 93. The court refused a cer- tiorari in the first instance to quash an order, on the ground that it was made from corrupt motives, that being proper ground for an appeal to quarter sessions (iS. V. Somersetshire Justices, 1 D. & E. 443); but where an order of quarter sessions confirming a con- viction was impeached on the ground of interest, a certiorari was granted with a view to a mandamus to hear the appeal. Ex parte Hopkins, E., Bl. & E. 100. The rule against granting certiorari where appeal may be made, can only be taken advantage of on the motion to file the order (1 Salk. 146 (147), Mich. 4 Atiti- B. R., Inhabs. of Shillington), and it only operates till the time for appealing has expired. See also 6 Mod. 40; Andrews, 343. Moreover it does not apply to prevent a defendant in whose favour a right of appeal has been specially given from applying for a certiorari {R. v. Harman, Andr. 343); nor to prevent either party from applying where no time is limited for appealing. Ibid. While, however, an appeal to quarter sessions is pending the court wiU not grant a certiorari, because both parties must be taken to have agreed to try the question in the first instance in the ordinary way. R. V. Sparrow, 2 T. E. 196, n. ; 1 E. & H. 1513. And although the certiorari is taken away on appeal at the quarter sessions, a case stated by consent, and raisiag the question of jurisdiction, may be brought up for the purpose of being quashed. R. v. Dickin- son, 26 L. J., M. C. 204. But if it is intended to object to an order of sessions as bad on the face Digitized by Microsoft® APPENDIX II. thereof, on any grounds not raised by the special case, the certiorari must be moved for in open court, and such additional grounds of objection stated. E. V. Heysp, 8 Q. B. 547; 15 L. J., M. C. 70. The court has refused to grant a certiorari to remove a beer licence, though granted by the solicitor of excise, without the production of a certificate from the overseers as required by repealed act 3 & 4 Yic. 0. 61, s. 2, because that, however erroneous, was not a judicial act. R. v. Overseers of Salford, 18 Q. B. 687; 21 L. J., M. C. 223. And so with a certiorari to remove the assessments of the land-tax {R. v. King, 2 T. E. 234), or to remove a warrant of distress to levy poor rates {Ex parte Taunton, 1 D. P. C. 54), or a poor rate itself {R. v. Uttoxeter, 1 Bott's P. L. 292), or an order of quarter sessions that exclusive audience should be granted to barristers there at all times when four barristers were present. R. v. Denbigh- shire Justices, 2 N. S. C. 422; 15 L. J., Q. B. 335; Ex parte Evans, 5 Q. B. 279. 13 Geo. 2, By 13 Geo. 2, c. 18, s. 5, no writ of certiorari shall 0. 18, s. 5. ■(jg granted, to remove any conviction, judgment, order Tune in qj, other proceedings, had or made before any justice certiorari. ■j.-jjxi, j; j_-u iup or justices oi the peace ot any county, borougn, &c., or the general or quarter sessions, unless such certio- rari be moved and applied for within six calendar months next after such conviction, judgment, order or other proceedings shall be so had or made. This only appHes to proceedings before magistrates. R. V. Sheffield {Mayor of), L. E., 6 Q. B. 654. The six months here limited seem to refer to the period when the conviction becomes operative. So that when there has been an appeal to quarter sessions, the time begins to run from the day when the sessions adjudicate. R. V. Morrice, 2 D. & L. 952. And where a special case has been granted on an order, the time runs from the date of the order, not from the settlement of the special case. Elliott v. Thompson, 24 W. E. 56; 33 L. T., N. S. 339. R. v. Middlesex Justices, 5 A. & E. 626. But regard will not be had to delay in the conviction, drawing a case to which the order is subject, or other causes over which the prosecutor had no control. R. v. Sussex Justices, 1 M. & S. 734; Digitized by Microsoft® APPEAL. 185 1 CMtty Stat., 3rd ed., 477, n. (e). If, however, a certiorari has heen applied for in time, hut the allo-w- ance of it is quashed for a defect in the recognizance, the court will send the writ down again to he properly allowed. R. v. Abergele, 1 N. & P. 235; 5 A. & E. 795; see also "Procedendo," infra, p. 184. And if a party attends with all necessary materials for making an application on the last day of the six months, and leaves his papers with the judge's clerk for the pur- pose of being laid before the judge, and states the nature of his application, it will be considered in time, even though no judge should be at chambers on that day, and no decision given till a subsequent day. R. v. Hodgson, 9 L. T., N. S. 290, 711; Cos, M. 0. 19: 33 L. J., M. 0. 98. Where the affidavit is sworn within the six months, but the judge's fiat is not signed till after that time, qucere whether the application is in time. R. v. >S'^. Mary, Whitechapel, 2 Dowl. N. S. 964; 1 Chitty Stat., 3rd ed., 477, n. (e). Whether an information may be removed by cer- tiorari before adjudication, as an indictment found may be befoi'e verdict, qucere. Cf. R. v. Hube, 5 T. E. 542'. The 13 Geo. 2, o. 18, s. 5, further enacts, that no 13 Geo. 2, writ of certiorari shall be granted or issued, to "• ^^_> ^- ^■ remove any conviction, judgment, order or other Notice. proceeding had or made by or before any justice of the peace or general or quarter sessions, unless it be duly proved upon oath, that the party or parties suing for the same hath or have given six days' notice thereof in writing to the justice or justices, or to two of them (if so many" there be), by and before whom such conviction, judgment, order or other proceedings shall be so had or made, to the end that such justice or justices, or the parties therein concerned, may show cause, if he or they shall so think fit, against the issuing or granting such certiorari. The certiorari can only be issued at the instance of the party who has given the notice. R. V. Kent Justices, 3 B. & Ad. 250. And his name ought to appear on the notice. R. v. Lancashire Justices, 4 B. & A. 288 ; R. v. Shrewsbury Justices, Digitized by Microsoft® 1)0uiid. 186 APPENDIX II. 9 Dowl. P. C. 501; 11 A. & E. 159. So the justices in question must be identified by affidavit {ibid.), ■which, ought also to state that the order complaiaed of was made by them. R. v. Cartworth, 1 D. & L. 837; 6 Q. B. 201; 13 L. J., M. C. 26; R. v. St. James'', Colchester, 20 L. J., M. 0. 203 ; but see R. V. Sevenoaks, 7 Q,. B. 136. And if not personally served on the justice, the notice should be proved to have been left at his dwelling-house. R. v. Nunn, I N. Sess. Cas. 49. A separate notice ought to.be served on each justice. R. v. Bedfordshire Justices, II A. & E. 134. It is sufficient if the notice be signed by the attorney of the party applying. R. v. Lancashire Justices, 11 A. &E. 144; iJ. V. Abergele, 5 A. &E. 797; R. V. Westmoreland Justices, 7 Jur. 899 ; R. v. Solly, 9 Dowl. P. 0. 115. The six days' notice is to be reckoned one day exclusively and the other inclu- sively. R. V. Goodenough, 2 A. & E. 463 ; R. v. St. Grown not Mary, Whitechapel, 2 Dowl. N. S. 964. The crown is not bound by this act. R. v. Berkley, 1 Ld. Ken. 80 ; Archb. J. P., tit. "Certiorari.^'' Where on a conviction by two justices two certiorarVs issued, one served on one of the justfces and the other pn both (each being issued without a rule to show cause), and a return was made, the court refused an application to have the conviction taken off the file and returned to the justices that they might amend it, on the ground that the appli- cation came too late, although the court declined to pledge itself against ever granting such an applica- tion, if on public grounds it should see fit to do so. R. V. T?ir/c, 16 L. J., M. 0. 114; 11 Jur. 774. The certiorari having produced its effect by bring- ing up the conviction, the court refused to quash it, on the ground that the conviction was wrongly de- scribed therein, though had the justices returned that there was no such conviction as that described, and that they could not obey the writ, some difficulty might have arisen. R. v. Turk, 16 L. J., M. C. 114; 11 Jur. 774. " Upon the affirmance of the conviction in the court above, the xorocess for the recovery of the Digitized by Microsoft® APPEAL. 187 12 & ISVio. c. 45, 3. 18. penalty must issue out of that court ; for tlie record being there, the justices below have no further au- thority and cannot award any process upon it. (See Tidd's Prac. 1032, 1245, 8th ed.) By 12 & 13 Vict. c. 45, s. 18, the order may he removed into the Court of Queen's Bench, and enforced in, the same manner as a rule of that court." Paley, 4th ed., 383. Where the Queen's Bench brought up by certiorari and quashed a conviction which the quarter sessions had confirmed on appeal subject to a case, it was held that the taxation of costs could only be ordered as ancillary to the giving of final judgme:(Lt i and that as there remained nothing of a judicial nature to be done by the court of quarter sessions in the matter of the appeal, that court had no longer any power to tax the costs, though it had ordered that the costs of the appeal should abide the result of the decision in the Queen's Bench. Ji. v. Hants Justices, 32 L. J., M. C. 46, 47, and cf. supra, " Stating case," B. v. Hornsea, D. & P. 291. A judge at chambers has jurisdiction to make an Froce- order for issuing a writ of procedendo to send back ^en<^- proceedings removed by certiorari from an inferior court, and it is in his discretion whether or not a summons to show cause should be issued in the first instance. R. v. Scaife, 21 L. J., Q. B. 419; M. 0. 221. A certiorari which has been erroneously granted in a matter wherein it is taken away may be super- seded, quia improvid& emanavit. R. v. Chantrell, L. E., 10 Q. B. 587. On a certiorari for bringing up a summary convic- tion there is, by sect. 47 of the Judicature Act, 1873 (36 & 37 Yict. c. 66), no appeal from the decision of 36 & 37 Vic. the Queen's Bench Division to the Court of Appeal. «• 66, s. 47. R. V. Fletcher, 2 Q. B. Div. 43. And cf. Boden v. Lelievre, 39 L. J., P. C. 17. See also Blake y. Beech, supra, p. 178; R. v. Steel, post, p. 198. A mode by which the decision of justices may be Eaheas reviewed is the writ of habeas corpus, where a sentence ""''i"'*- of imprisonment has been passed. In the modern practice the legality of the imprisomnent is tried under the form of an argument on a rule to show Digitized by Microsoft® 188 APPENDIX II. cause -why tlie writ should not issue. G. & M. Mag. Guide, Introd. 43 ; Ex parte Cross, 2 H. & N. 354 ; 26 L. J., M. C. 201. Should the rule be made abso- lute, the defendant, without further proceeings, ob- tains his discharge; and if the rule be discharged the defendant remains in custody. Oke, Mag. Syn., 11th and 12th eds., i., 54. Habeas corpus is generally (in criminal cases) confined to questions arising as to the validity of the commitment or conviction ; but, in certain instances, the propriety of the justice's decision may be indirectly tried by going behind the language of the document. Where a prisoner raised a question of mere iden- tity, alleging by affidavit that the person who had committed the offence in question had assumed his name, the Court of King's Bench, after inquiry into its practice and ascertaining that similar applications had formerly been granted, granted a habeas corpus. Att.-Gen. v. Fadder, 1 Price, 403. And in Re Bailey and Re Collier, 6 E. & B. 607 ; 23 L. J., M. C. 161, where the prisoner was committed for breaking a contract of service under 4 Geo. 4, c. 34 (repealed), it was held that he might by affidavit show that there was no evidence from which the committing justice might infer that there was such a contract as would give the said justice jurisdiction. But in R. v. Carlisle, 4 0. & P. 415, where the prisoner had been convicted of libel at the Old Bailey, the court refused to grant a habeas corpus on the ground that only one commis- sioner was present, instead of two, as required by law. Here, however, the conviction being by a court of record, error might have been assigned as was suggested. And so in Re Neicton, 16 C. B. 97 ; 24 L. J., C. P. 148, the court refused a habeas corpus to a prisoner convicted at the Central Criminal Court on the ground that the offence was committed out of its jurisdiction, Williams, J., saying that the juris- diction locally was material; that S the prosecutor had f aUed to prove it, the prisoner would have been entitled to an acquittal; and that if his application for a habeas corpus could be entertained, prisoners after trial might try the case over again on affidavits. Here also, as in R. v. Carlisle {supra), it was pointed Digitized by Microsoft® APPEAL. 189 out that there was a remedy by application for a writ of error ; and cf. Ex parte Lees and R. v. Lees, E., B. & E. 828 ; 27 L. J., Q. B. 403. But in Ex parte Smith, 27 L. J., M. 0. 186, where the question of magis- terial jurisdiction was sought to be raised on a writ of habeas corpus, iiyim not allowed. "Eor," said Martin, B., "the question of fact must be tried by the justice at his peril, and if he were wrong and an action of trespass were brought, he would have to plead and show his jurisdiction." Where a person has been imprisoned in default of recognizances to keep the peace, and has obtained a habeas corpus to which the warrant of commitment is returned, the order itself, together with the articles of the peace, may be brought before the court by certiorari ; and if in the opinion of the court the articles do not show any threat or evidence warranting the decision of the justices, &c., the court wiU order the prisoner to be discharged. R. v. Dunn, 12 A. & E. 599; 10 L. J., M. C. 29. But the court will not in such a case hear aflldavits controvertiag the facts as alleged in the articles of the peace. Ibid. Where a warrant of > commitment setting out a conviction is good on the face of it, quaere whether on the return to a habeas corpus affidavits are admissible, raising an objection not appearing upon the warrant, as, e. g. a former conviction for the same offence. Ex parte Baher, 2 H. & N. 219 ; 26 L. J., M. C. 155. But cf. Ex parte Eggington, which, however, arose out of an arrest on civil process. 2 E. & B. 717 ; 23 L. J,, M. C. 41. The court will not grant a habeas corpus to bring up a prisoner for the purpose of being discharged, on the ground that he is iUegaUy in custody, unless there is an affidavit from himself, or it is shown that he is so coerced as to be unable to make one. Re Paries, 5 M. & W. 32 ; 2 H. & N. 45. _ A prisoner committed to gaol upon additional evi- dence by justices who had previously admitted him to bail is not entitled to a habeas corpus. Ex parte Allen, 3 Nev. & Man. 35. Where after a rule for habeas corpus has been granted, a warrant is issued which renders the custody lawful, the court will discharge the rule. Digitized by Microsoft® 190 APPENDIX II. Ex parte Dauncey, 8 Jur., Ex. 829; Ex parte Smith, 3 H. & N. 227; 27 L. J., M. C. 186; Re Phipps, 11 W. E. 730, Q. B. And tlie fact that such second warrant has been delivered may be disclosed by affidavit. Ex parte Cross, 27 L. J., Ex. 40. But vrhere a prisoner is brought up on a ■writ of haheas corpus and the return shows a commitment bad on the face of it, the court will not, on the suggestion that the conviction is good, adjourn the case for the pixrpose of having the conviction brought up and amending the commitment by it. Re Timson, 5 L. E., Ex. 257; 22 L. T., N. S. 614; 39 L. J., M. C. 129. If disregard is shown to a haheas at common law, an attachment will immediately be granted. Ex parte Rosen, 2 Ld. Ken. 289. Moreover, if the court decides that the return is insufficient, the party making the return is thereby adjudged to be in contempt, and will be ordered to enter into recog- nizances himself and two sureties to answer personal interrogatories, and to abide any further order the court may make. Re Matthews, 12 Ir. 0. L. E., Q. B. 272. If a return which on the face of it is ambiguous is not fortified by affidavit clearing up all doubt, it will be held evasive and bad. R. V. Roberts, 2 F. & E. 272; R. v. Winton, 5 T. E. 89. In Warman's case it was stated that the return to a haheas corpus should answer the taking as well as the detaining. 2 "W. Bl. 1204. But in R. v. Suddis, 1 East, 306, it was held to be a sufficient return that the defendant is in custody under the sentence of a court of competent jurisdiction to inquire of the offence and to pass such a sentence, without setting forth the particular circumstances necessary to war- rant such a sentence. R. v. Suddis, 1 East, 306. The court wiU not, upon a return, give any direction or advice to the gaoler as to the matter of which his return should consist. Re Fletcher, 13 L. J., Q. B. 66. But thetjourt may in its discretion allow amend- ment in a writ of haheas corpus {R. v. Batcheldor, 1 P. & D. 516), or in a return. Re Clarke, 2 Q. B. 619; 5 Jur. 757. Digitized by Microsoft® APPEAL. 191 A judge at chambers has power at common law to issue in vacation a habeas corpus returnable before himself immediately. R. v. Batcheldor, 1 P. & D. 516; Re Cants Wilson, 7 Q. B. 984; 14 L. J., Q. B. 105. And cf. 36 & 37 Vic. c. 66 (J. A., 1873), s. 39. The writ may be issued by any of the Queen's courts at Westminster, but the Queen's Bench alone can send for, examine and set aside the conviction; the powers of the other courts only extending to issuing the writ and removing the body and the warrant of com- mitment. Paley (4th ed.), 338. And the Queen's Bench Division has still exclusive cognizance of all matters of which the Queen's Bench had exclusive cognizance in the exercise of its original jurisdiction. Re Ellershaw, Ex parte Longhoftom, 1 Q, B. D. 481 ; 36 & 37 Vic. c. 66, s. 34. A habeas corpus issued in vacation, returnable immediately before a judge in chambers does not expire by the commencement of the term. R. v. Shehieare, 1 Burr. 460; R. v. Mead, ibid. 542. A prisoner who sues out a habeas corpus ad subji- ciendum is not bound by the decision of any one court, but is entitled to take the opinion of all the courts as to the propriety of his imprisonment. Ex parte Partington, 13 M. & W. 679; 2 D. & L. 650. Where a habeas corpus is granted on the ground that the party has been illegally committed by a magistrate, the judge will not make it a part of the rule for issuing the writ that the party shaU. not bring an action against the magistrate. Ex parte Hill, 3 0. & P. 225. A mode in which the jurisdiction of justices may in particular cases come under the consideration of a superior court is provided by the 11 & 12 Vic. c. 44, s. 5. By that enactment, in all cases where a justice of the peace shaU refuse to do any act relating to the duties of his office as such justice, it shaU. be lawful for the party requiring such act to be done, to apply to her Majesty's Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice, and also the party to be affected by such act, to show cause why such act should not be done; and if after due service of such rule good cause shall not 36 & 37 Vic. 0. 66, S3.- 34, 39. 36 & 37 Vic. c. 66, s. 34. 11 & 12Vio. 0. 44, s. 5. Eule in the nature of man- damus. Digitized by Microsoft® 192 APPENDIX II. 18&19Vio. c. 121, S3. 13, U. 18&19Vic. c. 120. 11 & 12Vic. c. 44, s. 5. 3 & 4 wm. 4, c. 90, s. 16. be shown against it, tlie said court may make tlie same absolute, witli or without, or upon payment of costs, as to them shall seem meet; and the said jus- tice, upon being served with such rule absolute, shall obey the same, and shall do the act required; and no action or proceeding whatsoever shall be commenced or prosecuted against such justice for having obeyed such rule, and done such act so thereby required as aforesaid. The phrase " act relating to the duties of his office" appears to mean some act which the justice is bound to do upon good cause shown, and not one which it is entirely within his own discretion to do or leave undone; e.^., the power given by 18 & 19 Vic. c. 121, s. 14, to a local authority to enter premises, to enforce an order of justices made im.der s. 13, is merely per- missive, and a mandamus will not be granted to compel the local authority to do so. Re L. B. H. Ham, 26 L. J., M. 0. 64. And it has been held that a decision of a magistrate that a street is not a "new street" within 18 & 19 Vic. c. 120, so as to enable him to decide that an order may be made upon a house owner for contribution to the expense of paving, is not a declining of jurisdiction within 11 & 12 Vic. c. 44, s. 5. Erie, J., however, dissented from this ruling. R. v. Dayman, 26 L. J., Q. B. 239; 3 Jur., N. S. 744; see also R. v. Dunn, 3 Jur., N. S. 341 (Q. B.); 28 L. T. 252; Cox, M. 0. 171; and R. v. Paynter, 28 L. T., Q. B. 303; Cox, M. 0. 179. In the former of these two cases it appeared that in September, 1853, at a meeting of ratepayers for determining whether so much of stat. 3 & 4 WUl. 4, c. 90, as relates to lighting should be adopted in the parish, the act was not adopted. In December following, at a meeting for determining whether it should be adopted in part of the parish, the act was adopted. 8. paid a rate assessed upon him in 1855, but having refused to pay subsequent rates, a sum- mons was taken out against him, at the hearing of which the justices decided that the persons at the two meetings were substantially the same body, and there- fore, the second being contrary to sect. 16, dismissed the summons. Upon application for a rule calling on Digitized by Microsoft® APPEAL. 193 the justices to issue tlieir warrant, semble, that the decision of the justices ATas wrong; hut being on a question of fact, held, that the court could not dis- turb it. In E. V. Paynter, p. 192, on the hearing of a complaint under the Metropolis Local Management Act, the magistrate adjourned the case, and sub- sequently gave a considered opinion iipon it, and stated that he was willing to put the matter in any shape that the parties might suggest to enable them to take the opinion of the Court of Queen's Bench. The complaiuant requested the magistrate not to adjudicate upon the case, but the party sum- moned wished him to adjudicate according to his expressed opinion, which he was ready to do; but to enable the complainant to apply to the court, and at the request of the complainant only, the magistrate did not adjudicate : it was held that this was not a case within the 11 & 12 Vic. c. 44, as there was no such refusal to adjudicate as was contemplated by it, and that no appeal could be made to the court under that statute. But the court will interfere where the magistrate declines to act because he supposes erroneously that he has no authority to do so. Thus a refusal of justices to adjudicate on the ground that the information is against an iasufficient number of persons amounts to a declining of jurisdiction. R. v. Brown, jfc. {Monmouth Justices), 26 L. J., M. 0. 183. A declining of jurisdiction may perhaps be distinguished from an adj udication by the following test : — " If the obj ection be such, that whatever the merits of the case, whether the defendant be guilty or not, the justices hold that they cannot decide on the merits owing to the oh jec- tion"— then jurisdiction is declined. Per Coleridge, J., ihid. The principle here suggested is in harmony with the decision in R. v. Paynter, supra, and with R Y Clee and Osborne, 21 L. J., M. C. 112, where it was decided that the 11 & 12 Vic. c. 44, s. 5, does ll&12Vic. not enable the court to order justices to draw up one <=• «, s. o- joittt conviction, instead of two separate convictions, against each of two persons agaiast whom a joint information has been laid, heard and determined. G. " Digitized by Microsoft® 194 APPENDIX II. The principle of these decisions is apparently that the section does not at all apply where justices have acted, though erroneously. Archb. J. P. (7th ed.) ii., 1120; and cf. R. v. Blanshard, ihid.; 18 L. J., M. 0. 110. According to another test suggested, it is only when justices would need protection, if they pro- ceeded to do " any act relating to the duties of their oifi.ce," that a rule calling upon them to show cause why such act should not be done can be granted. But the court refusing such a rule will sometimes grant a rule for a mandamus. R. v. Percy, 9 L. E., a B. 64; 43 L. J., M. C. 45. The question what is a declining of jurisdiction does not depend upon the period of the examination at which the competency of the justices is objected to {R. T. Broion, Sfc, supra'); and it is applicable to proceedings in the nature of execution as well as to those in the nature of judgment. E.g., on application for a distress warrant to enforce a poor rate which is good on the face of it, and has not been appealed against, justices are not entitled to refuse their war- rant on the ground that there may be a ground of appeal against the rate; and if they do so refuse, the court will make absolute a rule to command them to issue the warrant. R. v. Kingston-on-Thames Justices, E. B. & E. 256; 27 L. J., M. C. 199; and cf. infra. Re Hartley, 31 L. J., Q. B. 248. Where justices declined to enforce an affiliation order by distress, on the ground that the husband of the woman (not being the putative father) had returned to her, the court issued a rule to compel them under ll&12Tic. 11 & 12 Yic. c. 44, s. 5. Ex parte Grimes, 22 L. J., M. 0. 153. Where a statute empowers justices to issue a distress warrant, "if they shall think fit," they must not refuse to issue it merely because they think that the act would work injustice in the par- ticular case. R. v. Boteler, S(c., 33 L. J., M. C. 101. In this case the justices entered into the inquiry, heard the case, and then refused to act. And the rule against them was made absolute with costs. Ibid., p. 103; and see ante, pp. 7, 8, 75. Where magistrates have convicted of penalties oh matters within their jurisdiction, and the convictions Digitized by Microsoft® . 44, s. 6. APPEAL. 295 are regular in form, and there is no legal reason sh.own_ why the parties convicted have not paid the penalties, the court TsrUl feel hound to grant a rule under the statute 11 & 12 Vic. c. 44, s. 5, to the magistrates to issue warrants to levy the amounts, and have no discretion to refuse to do so on the ground of some supposed hardship in the number of the convictions or the amount of the costs. Ee Hartley, 31 L. J., Q. B. 248. But the court mil inquire into the validity of an order of justices before compelling them to issue a distress warrant to enforce such order, and will refuse a rule for that purpose where the order appears to have been made without jurisdiction. B. v. Collins, ^c. {Durham Justices), 21 L. J., M. 0. 73. And where a magistrate de- clined to commit on a charge of perjury in a civU suit pendente lite, the court refused a rule. R. v. Ingham, 19 L. J., M. 0. 69. The court, in general, wlU. neither grant a man- damus, nor the rule which now serves as a substitute for a mandamus, where there is by statute an appeal to quarter sessions, — as e.g. to compel justices to re- hear an application for a beer licence. R. v. Smith, Sfc. (Justices), 21 W. E. 382 (sub tit. R. v. Lancashire Justices, L. R, 8 Q. B. 146; 42 L. J., M. C. 46); R. V. Oxfordshire Justices, 18 L. J., M. 0. 222. It is not necessary to give notice of a motion to quash a writ of mandamus. R. v. Middlesex Justices, 7 L. J., M. C. 68. The costs of an application for mandamus are generally in the discretion of the court, whether the writ be granted or refused; but where a party ap- pears in opposition to a mandamus and supports an objection which turns out to be untenable, he must pay the costs of the mandamus under 1 Will. 4, c. 21, B. 6. R. V. Surrey Justices, 19 L. J. 171. See also R. Y. Cumberland Justices, and R. v. Lancashire Jus- tices, 17 L. J., M. C. 133. As the question of magisterial jurisdiction is some- Prohibi- times raised by mandamus, so it may also be tried by °^' the contrary process of prohibition, which it is now settled lies to a court of criminal no less than to one of civil jurisdiction. R. v. Herford, 3 E. & E. 115; o 2 Digitized by Microsoft® 196 APPENDIX II. 29 L. J., Q. B. 249. See also Everton v. Liverpool Gas Co., L. E., 6 C. P. 414, where a recorder having improperly refused an appeal, the court prohibited him from subsequently hearing it. The jurisdiction of the superior court to issue prohibition is not ousted by a statutory provision (as e. g. in 31 & 32 Vic. c. XXX., s. 7) that no defendant shall be permitted to object to the jurisdiction of the (inferior) court otherwise than by special plea, and that if the want of jurisdiction be not so pleaded, the (inferior) court shall have jurisdiction for all purposes. Oram V. Brearey, 2 Ex. Div. 346. Where, however, the subject of a suit in an in- ferior court is within its jurisdiction, though in the proceedings a matter is stated which is out of its jurisdiction, yet, unless it is going on to try such matter, prohibition will not lie. Dutens v. Roberts, 1 H. Bl. 100. The case of Ex parte Minto, 35 L. T., N. S. 808, throws some light on the ques- tion when prohibition will be issued. On the 13th of January, 1877, application was made for a prohi- bition to restraia the stipendiary magistrate of South Shields under the following circumstances : — The , Merchant Shipping Act, 1854, gives the magistrate power to deal with the Board of Trade certificates of merchant captains. The 14th rule under the Mer- chant Shipping Act, 1876, enacts, that inquiries into shipping casualties shall commence with the exami- nation of the master, officers, &c., &e. The 15th rule states that on the completion of their examination the Board of Trade shall state in writing whether any and what charge shall be made against any person. An inquiry was commenced regarding the stranding of a ship. "When the examination of the captain was completed, the solicitor who represented the Board ^f Trade gave him a written statement that he did not mean to "formulate" any charge against him. On the following meeting, the magis- trate asked for the captain, and directed that he should be re-called because a chai-ge was to be pre- ferred against hiin. MeHor and Lush, JJ., refused a prohibition : the latter sajdng that the discharge could not be given till all the witnesses had been Digitized by Microsoft® Al'PEAL. 197 examined; and the former, that if the solicitor could interfere as he had done, the magistrate would be the mere tool of the Board of Trade. It has been laid down that after sentence prohibi- tion will not Ue, unless want of jurisdiction below appears on the face of the proceedings. Buggin v. Bennett, 4 Burr. 2035 ; Fall v. Hutahins, Cowp. 424, 432. But this supposes that nothing more remains to be done on which prohibition can operate. Ser- jeant V. Dale, 2 Q. B. Div. 558; Hudson v. Tooth, 3 Q. B. Div. 46. And where the want of juris- diction appears on the face of the process, prohibi- tion will be granted even after sentence. Roberts V. Humhy, 3 M. & W. 120; 6 D. P. C. 82. And where justices had convicted a party of unlawful fishing, the court refused to issue a prohibition against their proceeding to enforce it, on the ground that the defendant, before the justices, claimed a right of fishing; and they refused to require the informant to produce his title deeds. Ex parte Higgins, 10 Jur., Q. B. 838. The defence of justices whose decision has been impugned is now facilitated by the Review of Jus- tices' Decision Act, 1872 (35 & 36 Yic. c. 26, s. 2), 35&36Vic. which enacts, that whenever the decision of any <=• 26, s. 2. justice, &c., is called in question in any superior ;A.faaavrt court of common law, by a rule to show cause, or other process issued upon an ex parte application, it is lawful for any such justice to make and file in such court an affidavit setting forth the grounds of the decision so brought under review, and any facts which he may consider to have a material bearing upon the question at issue, without being required to pay anj"- fee in respect of filing such affidavit, or any stamp -duty thereupon, and such affidavit may be sworn before a commissioner authorized to take oaths in Chancery, and may be forwarded by post to one of the masters of the court for the purpose of being so filed. 35 & 36 Vic. c. 26, s. 2. Under this act, 35&36yio. however, the affidavit must be sworn by the justice ''■ 26, s. 2. himself, and affidavits sworn by persons upon whose evidence the decision of the justice is founded are not admissible. R. v. Sperling, 21 W. E. 461. Digitized by Microsoft® 198 APPENDIX II. No writ of error nor appeal under the Judicature Acts. Appeal from the decision of justices is not aifected by the Judicature Acts, 1873, 1875, for though sum- mary convictions have been held to be "records" (Paley, 4th ed., 125, 126, n. (5)), no writ of error lies on a summary conviction. Ibid. 350. And in cri- minal cases there is no appeal to the Court of Appeal under the new acts, except for error on the record, and an information in a criminal cause or matter, so that, e.ff., the Court of Appeal has no jurisdiction to hear an appeal from the High Court on a question of the taxation of costs of an information. R. v. Steel, 2 Q. B. D. 37; 46 L. J., M. C. 1. And see ante, Blake V. Beech, p. 178, and E. v. Fletcher, Boden v. Lelievre, p. 187. Digitized by Microsoft® ( 199 ) Appendix III. TUTELARY AND ALTERNATIVE JURISDICTION. 24 & 25 Vic. c. 100, a. 46. In some cases magistrates have an alternative jtiris- diction. So that whereas if the facts before them disclose an offence of a certain gravity they are hound to commit, yet if it appear that the crime stops short of that standard, or if (in certain cases) the offender is helow a certain age, the magistrate may deal with it summarily. One instance of this is supplied hy 24 & 25 Vic. c. 100 (Offences against the Person Act), s. 46. By that section, when justices are dealing (as certain clauses of the act empower ^ ,. , them to do) with a charge of assault, in case the Sai^ ° justices shall find the assault or battery complained from adju- of to have been accompanied by any attempt to com- dioating in mit felony, or shall be of opinion that the same is, casesT from any other circumstance, a fit subject for a pro- secution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the same: provided also, that nothiag herein contained shall authorize any justices to hear and determine any case of assault or battery in which any question shall arise as to the title to any lands, tenements, or here- ditaments, or any interest therein or accruing there- from, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. It should be observed that if the prisoner should 24 & 25 Vie. be charged under the 43rd section of the same act "• ^^^' _„ with an aggravated assault, and the evidence or a ' ' , ' part thereof should point to an indictable offence, even of the highest sort (as rape), the justices may still, if they disbelieve those parts of the evidence Digitized by IVIicrosaft® 200 APPENDIX m. whioli -would indicate the higher offence, convict of an assault. Re Thompson, SOL. J., M. C. 20, n. (3) ; Wilkinson v. Button, 3 B. & S. 821; 32 L. J. 152; Cox, M. 0. 169. See also R. v. Powell, 2 B. & Ad. 75. The proceedings under the above-named 46th sec- tion are by sect. 76 of the same act (except within London and the metropolitan district) to be under the 11 & 12 Vic. c. 43, — a provision which, as wUI be seen, shortly distinguishes them from proceedings 18&l9Tic. under the 18 & 19 Vic. c. 126, but not from those c. 126. under the other acts by which alternative jurisdiction is given. 18&l9Vio. By 18 & 19 Vic. c. 126, s. 1, where any person is "' ^'^\ 9 charged before any justices assembled at such petty ^^' ' ' ■ sessions as hereinafter provided with having com- mitted simple larceiiy, and the value of the whole of the property alleged to have been stolen does not, in the judgment of such justices, exceed 6«., or with having attempted to commit larceny from the person, or simple larceny, it shall be lawful for such justices to hear and determine the charge in a summary way, and if the person charged confess the same, or if such justices, after hearing the whole case for the prose- cution and for the defence, find the charge to be proved, then it shall be lawful for such justices to convict the person charged, and commit him to the common gaol or house of correction, there to be im- prisoned, with or without hard labour, for not ex- ceeding three calendar months, and if they find the offence not proved they shall dismiss the charge, and make out and deliver to the person charged a certi- ficate under their hands, stating the fact of such dis- missal; and every such conviction and certificate respectively may be in the Forms (A.) and (B.) in the schedule to this act, or to the like efiiect : provided always, that if the person charged do not consent to have the case heard and determined by such justices, or if it appear to such justices that the offence is one which, owing to a previous conviction of the person charged, is punishable by law with transportation or penal servitude, or if such justices be of opinion that the charge is, from any other circumstances, fit to be made the subject of prosecution by indictment, rather than to be disposed of summarily, such justices Digitized by Microsoft® TUTELARY AXD ALTERNATIVE JURISDICTION. 201 shall, instead of summarily adjudicating thereon, deal with the case in all respects as if this act had not been passed : provided also, that if upon the hearing of the charge such justices be of opinion that there are circumstances in the case which render it inex- pedient to inflict any punishment, they shall have power to dismiss the person charged, without pro- ceeding to a conviction. (Sect. 2.) Where the justices before whom any person is charged as aforesaid propose to dispose of the case summarUy under the foregoing provisions, one of such justices, after the examinations of all the witnesses for the prosecution have been completed, and before calling upon the person charged for any state- ment which he may wish to make, shall state to such person the substance of the charge against him, and shall then say to him these words, or words to the like effect: " Do you consent that the charge against you shall be tried by us, or do you desire that it shall be sent for trial by a jury at the sessions or assizes" (as the case may be) ; and if the person charged con- sent to the charge being summarily tried and deter- mined as aforesaid, then the justices shall reduce the charge into writing, and read the same to such person, and shall then ask him whether he is guilty or not of such charge; and if such person say that he is guilty, the justices shall then proceed to pass such sentence upon him as may by law be passed, subject to the provisions of this act in respect to such ofl^ence; but if the person charged say that he is not guilty, the justices shall then inquire of such person whether he has any defence to make to such charge, and if he state that he has a defence the justices shall hear such defence, and then proceed to dispose of the case summarily. (Sect. 3.) Where any person is charged before any justices at such petty sessions as aforesaid with simple larceny (the property alleged to have been stolen exceeding in value 5s.), or stealing from the person, or larceny as a clerk or servant, and the evi- dence, when the case on the part of the prosecution has been completed, is in the opinion of such justices sufficient to put the person charged on his trial for Digitized by Microsoft® 202 APPENDIX III. Previous convic- tions. 34 & 35 Vic. c. 112, ss. 18, 19. tlie offence with wHcli lie is charged, such justices, if the case appear to them to be one which may properly be disposed of in a summary way, and may be adequately punished by virtue of the powers of this act, shall reduce the charge into writing, and shall read it to the said person, and shall then ask him whether he is guilty or not of the charge; and if such person say that he is guilty such justices shaU thereupon cause a plea of gmlty to be entered upon the proeeediags, and shall convict him of such offence, and commit him to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding six calendar months; and every such conviction may be in the Form (C.) in the schedule to this act, or to the like effect: provided always, that the said justices, before they ask such person whether he is guilty or not, shall explain to him that he is not obliged to plead or answer before them at all, and that if he do not plead or answer before them he will be comimtted for trial in the usual course. Previous convictions (referred to, sect. 1, supra) may now by 34 & 35 Vic. c. 112, s. 1 8, be proved in any legal proceeding, whatever against any person by producing a record or extract of such conviction, and by giving proof of the identify of the person against whom the conviction is sought to be proved with the person appearing in the record or extract of convic- tion to have been convicted. A record or extract of a conviction shall, in the case of an indictable offence, consist of a certificate containing the substance and effect only (omitting the formal part of the indict- ment and conviction) and purporting to be signed by the clerk of the court or other officer having the cus- tody of the records of the court by which such con- viction was made, or purporting to be signed by the deputy of such clerk or officer; and, in the case of a summary conviction, shall consist of a copy of such conviction purporting to be signed by any justice of the peace having jurisdiction over the offence in respect of which such conviction was made, or to be signed by the proper officer of the court by which such conviction was made, or by the clerk or other Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 203 officer of any court to wHch such conviction has been returned. A record or extract of any conviction made in pursuance of this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same. A previous conviction in any one part of the United Kingdom may be proved against a prisoner in any other part of the United Kingdom: and a conviction before the passing of this act shall be admissible in the same manner as if it had taken place after the passing thereof. A fee not exceeding five shillings may be charged for a record of a conviction given in pursuance of this section. The mode of proving a previous conviction autho- rized by this section shall be in addition to and not in exclusion of any other authorized mode of proving such conviction. By sect. 19, where proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen property, evidence may be given at any stage of the proceedings that there was found in the possession of such person other property stolen vnthin the preced- ing period of twelve months. The 31 & 32 Vic. c. 116, s. 2, extends the pro- visions of the 18 & 19 Vic. c. 126, to embezzlement ^ ^ <,-u by clerks or servants, or persons employed in that 3i"&32Vic. capacity. . c. 116, s. 2. By 18 & 19 Vic. c. 126, s. 5, where any person i8&l9Tic. is charged before any justice or justices with any "■ l|6, offence mentioned ra this act, and in the opinion of ^'i^ jg ' such justice or justices the case may be proper to be disposed of by justices in petty sessions under this act, the justice or justices before whom such person is so charged may, if he or they see fit, remand such person for further examination to the next petty sessions, in like manner in aU respects as a justice or justices are authorized to remand a party accused under the act passed in the session holden in the 11th and 12th years of her Majesty, c. 42, s. 21. By sect. 6, if the party does not appear pursuant to his recognizance, the justices before whom he ought to have appeared Digitized by Microsoft® 18 & 19 Vic. c. 126, ex- 204 AITEUDIX III. Sect. 9. Sect. 16. Sect. 10. Sect. 4. Sect. 14. Justices may order payment of expenses. shall certify (under tlie hands of two of them) on the back of the recognizance to the clerk of the peace of the county or place the fact of such non-appearance, and such recognizance shall be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primA facie evidence of such non-appearance. The 9th section of the same act provides, that the petty sessions in question shall be an open court and held for a petty sessional division after due notice; and by the 16th section, any one of the magistrates appointed to act at any of the police courts of the metropolis, and sitting at a police court "within the metropolitan police district, may, in the case of persons charged before such magistrate, do alone all acts by this act authorized to be done by justices in petty sessions, and all the provisions of this act referring to justices in petty sessions shall be read and construed as referring also to such magis- trate. By sect. 10, the court on these occasions is to be regarded as an open court, and by sect. 4, the party charged may appear, &c. by counsel and attorney. By sect. 14, where any charge is summarily adjudi- cated upon under the act in question, or an ofiender is convicted by jxistices in petty sessions upon a plea of "guilty," it shall be lawful for the justices by whom such charge has been adjudicated upon or offender convicted, upon the request of any person who has preferred the charge or appeared to prose- cute or give evidence against the person charged, if such justices think fit so to do, to grant a certificate to such person of the amount of the compensation which such justices may deem reasonable for his expenses, trouble, and loss of time therein, subject nevertheless to the regulations made or to be made as hereinafter mentioned; and every such certificate shall, when granted in England, have the effect of an order of court for the payment of the expenses of a prosecution made under 7 Geo. 4, c. 64, and the acts amending the same .... and the amount mentioned in such certificate shall be paid in like manner as the money mentioned in such order of cou.rt; and all certificates granted under the act shall Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 205 be subject to tbe like regulations made or to be made in relation thereto as the certificates mentioned in the said act of the seventh year of King George the Pourth to be granted by examining magistrates are or may be subject to under 14 & 15 Vic. c. 55: pro- vided also, that the amount of the fees payable to the clerks of the magistrates in petty sessions, in respect of any proceeding under the act, and of the fees payable to the clerks of the peace for filing the depositions, conviction, or certificate of dismissal aforesaid, and of all such expenses of apprehending the person charged, and detaining him in custody, and of such other expenses as are now by law pay- able when incurred before a commitment for trial, may be added to the certificate for compensation aforesaid, and paid in the like manner. Sect. 8 declares that it shall be lawful for the Sect. 8. justices by whom any person is convicted under the act, to order restitution of the property stolen, taken or obtained by false pretences, in those oases in which the court before whom the person convicted would have been tried but for the 18 & 19 Vic. c. 126, may be by law authorized to order restitution. And by sect. 22, in all cases where any justice, &c. shall Sect. 22. have power to order a sum of money to be forfeited and paid to the party aggrieved as amends or com- pensation for any (wilful or malicious) injury to pro- perty, real or personal, the right of such party to receive the money .... shall not be affected by such party having been examined as a witness in proof of the offence. Another case of alternative jurisdiction is that Juvenile created by the 10 & 11 Vic. e. 82_, which says (sect. 1), ^5!''^'^^^^.'; every person charged with having committed or at- ^ g2_ tempted to commit, or with having been an aider, abettor, counsellor, or procurer in the commission of any offence now or hereafter by law deemed or de- clared to be simple larceny, or punishable as simple larceny, and whose age at the period of the commis- sion or attempted commission of such offence does not, in the opinion of the justices before whom he or she is brought or appears as hereinafter mentioned, exceed the age of fourteen years, shall upon convic- Digitized by Microsoft® 206 APPENDIX III. tion thereof, upon his own confession or upon proof, before any two .or more justices for any county, riding, division, borough, liberty, or place in petty sessions assembled, at the usual place, and in open court, be committed to the common gaol or house of correction within the jurisdiction of such justices, there to be imprisoned, with or without hard labour, for any term not exceeding three calendar months, or, in the discretion of such justices, shall pay such sum, not exceeding SL, as the said justices shall adjudge, or, if a male, shall be once privately whipped, either instead of or in addition to such im- prisonment, or imprisonment with hard labour - . . . provided always that if the justices, upon the hearing of any such case, shall deem the offence not to be proved, or that it is not expedient to inflict any punishment, they shall dismiss the party charged, on finding surety or sureties for his future good behaviour, or without such sureties, and there make out and deliver to the party a certificate of his dis- missal .... provided also, that if such justices shall be of opinion, before the person charged shall have iaade his or her defence, that the ease is a fit one for indictment, or if the person charged objects to its being summarily disposed of under this act, 'the justices "shall deal with the case in all respects 10 & 11 Vic. as if this act had not been passed." Sect. 3 enacts c. 82, s. 3. that the certificate of dismissal when given shall be a bar to all further proceeding for the same cause. l3&14Vio. The 13 & 14 Vic. c. 37, s. 1, extends the age of the c. 37, s. 1. person liable to be summarily dealt with from four- teen to sixteen, but provides that those above the age of fourteen shall not be sentenced to whipping. 13 & 14Vio. And sect. 2 says, one of the justices before whom any c. 67, s. 2. pergon ig charged and proceeded against under this act or the hereinbefore mentioned acts, before such person shall be asked whether he or she has any cause to show why he or she should not be convicted, shall say to the person so charged these words, or words to the like effect: "We shall have to hear "what you wish to say in answer to the charge against you ; but if you "s^-ish the charge to be tried by a jury, you must ob j ect now to our deciding vipon it at once ; ' ' Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 207 and if sucli person, or a parent of such j)erson, tlien object, the justices shall proceed with the charge as if the said acts had not been passed. And 34 & 35 Vic. c. 78, s. 13, includes under the 10 & 11 Vic. c. 82, and 13 & 14 Vic. c. 37, the offences mentioned in the 24 & 25 Vic. c. 100, ss. 32, 33, and 24 & 25 Vic. c. 97, s. 35. By 24 & 25 Vic. c. 100, s. 32, whosoever shall un- lawfully and maliciously put or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlaw- fully and maliciously make or show, hide or remove, any signal or light upon, or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to endanger the safety of any person travelling or being upon such railway, shall be guUty of felony, and being convicted thereof shall be Hable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, — or to be imprisoned for any term not exceeing two years, with or without hard labour, and, if a male under the age of 16 years, with or without whipping. By sect. 33 of the same act, whosoever shall unlaw- fully and maliciously throw, or cause to fall or strike, at, against, into, or upon any engine, tender, carriage, or truck used upon any railway, any wood, stone, or other matter or thing, with intent to injure or endanger the safety of any person being in or upon such engine, tender, carriage, or truck, or in or upon any other engine, tender, carriage, or truck of any train of which such first-mentioned engine, tender, carriage, or truck shall form part, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, — or to be im- prisoned for any term not exceeding two years, with or without hard labour. 34 & 35 Vic. c. 78, s. 13. 24 & 25Vic. c. 100, SB. 32, 33. 24 & 25 Vic. 0. 97, s. 35. Placing wood, &c. on a rail- way, with intent to endanger Casting stone, &c. upon a railway carriage, with intent to en- danger the safety of any person therein. Digitized by Microsoft® 208 APPENDIX III. Placing wood, &c. on railway with intent to otstruot or over- throw any engine, &c. 25 Vic. 0. 18, s. 1. Whipping. 3 & 4 Vic. c. 97. By sect. 35 of the 24 & 25 Vic. c. 97, whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and mali- ciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any rail- way, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maK- ciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such raUwa)', shaU. be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, — or to be imprisoned for any term not exceeding two years, with or without hard labour, and, if a male under the age of 16, with or without whipping. The 25 Vic. c. 18, s. 1, enacts, that when the . punishment of whipping is awarded by a justice or justices for any offence, the sentence shall specify the number of strokes and the instrument, that in the case of an offender under 14 years the number of strokes shall not exceed twelve, that the instru- ment shall be a birch-rod, and that no offender shall be whipped more than once for the same offence. In connection with the offences mentioned in the acts of 24 & 25 Vic. cc. 97, 100 should be con- sulted certain cases decided under the acts 3 & 4 Vic. c. 97, and 14 & 15 Vic. c. 19, ss. 6, 7 (re- pealed). According to E. v. Court, 6 Cox, C. C. 202; F. &H. Dig. 2704-05, to constitute a felony under 14 & 15 Vic. 0. 19, s. 7, it was necessary that the stone or other thing used should be thrown against and strike an engine, tender, carriage or truck having a person or persons in or upon it ; and therefore, although a stone might be thrown at a train with intent to injure persons therein, yet, if it should strike a carriage Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 209 or tender not having any person in or upon it at the time, the felony would not be proved. But in H. V. Sanderson, 1 F. & F. 37; Cox, M. 0. 72, decided under sects. 6 and 7 of the same statute, it was held that there might be a case for the jury, although the train was a goods train, and there was no person on the particular truck, but there must be proof of the intent to endanger the safety of persons an it. Semhle, that the thing thrown must be calcu- lated to injure otherwise than by fire, which came under sect. 8, requiring an intent to destroy by fire, and if the act appears only to have been done in carelessness the charge of felony would faU. In R. v. Holroyd, 2 M. & Eob. 339 ; F. & H. Dig. 2704, it was held that a party was Kable to be in- dicted under 3 & 4 Vic. c. 97, s. 15 (repealed), if he designedly placed on a raUway substances having a tendency to produce obstruction to the carriages, though he might not have done the act expressly with that object. See also the case of R. v. Bradford, 8 Cox, 0. C. 309; 2 L. T., N. S. 392; Cox, M. 0. 72. There a line of railway was constructed under the powers of an act of parliament, and was intended for the conveyance of passengers in carriages drawn by steam-engines, but at the time of the alleged offence the conveyance of passengers for hire had not commenced, and the traffic was confined to the carriage of workmen and materials. A raUway- truck was placed by the prisoners across the Hne, so as to obstruct the passage of any carriage and to endanger the safety of the persons therein, but its position was discovered, and the truck removed before any collision occurred: — Held, that the so placing the truck across the line was an offence within 3 & 4 Vic. c. 97, s. 15, although the line was 3 &4 Vic. not completed and no actual obstruction took place. <=• ^7, s. 15. By sect. 14 of the Eeformatory Schools Act, 1866 29&30Vio. (29 & 30 Vic. c. 117), whenever any offender who, in <=. 117, s. 14. the judgment of the court, justices or magistrate ^^'"™*" before whom he is charged is under the age of six- schools, teen years, is convicted on indictment or in a sum- Offenders mary manner of an offence punishable with penal ^^^^ servitude or imprisonment, and is sentenced to be years. G. P Digitized by Microsoft® 210 APPENDIX III. Offenders under ten years. Sect. 15. EemoTal of the imprisoned for tlie term of ten days or a longer term, tte court, justices or magistrate may also sentence him to he sent, at the expiration of his period of imprisonment, to a certified reformatory school, and to be there detained for a period of not less than two years and not more than five years: proYided always that a youthful offender under the age of ten years shall not be so directed to be sent to a reformatory school, unless he has been pre- viously charged with some crime or offence punish- able with penal servitude or imprisonment, or is sentenced in England by a judge of assize or court of general or quarter sessions, or in Scotland by a circuit court of justiciary or sheriff. The particular school to which the youthful offender is to be sent may be named either at the time of his sentence being passed, or within seven days there- after, by the court, justice or magistrate who sen- tenced him, or, in default thereof, at any time before the expiration of his imprisonment by any visiting justice of the prison to which he is committed. In choosing a certified reformatory school, the coiirt, justices, magistrate, or visiting justice, shall endeavour to ascertain the religious persuasion to which the youthful offender belongs, and, so far as is possible, a selection shaU. be made of a school conducted in accordance with the religious persuasion to which the youthful offender appears to the court, justices, magistrate, or visiting justice to belong, which pet- suasion shall be specified by the court, justices, magistrate, or visiting justice. It shall be lawful, upon the representation of the parent, or in case of an orphan then of the guardian or nearest adult relative, of any offender detained in any such school, for a minister of the religious persuasion of such offender at certain fixed hours of tiie day, which shall be fixed by the secretary of state for the purpose, to visit such school for the purpose of affording religious assistance to such offender, and also for the. purpose of instructing such offender in the principles of his religion. By sect. 15 of the same act, the gaoler of every prison having in his custody any youthful offender Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 211 sentenced to he sent to a reformatory school, shall at offender to the appointed time deliver such offender into the certified custody of the superintendent or other person in tory™ho"ol. charge of the school in which he is to be detained, together with the warrant or other document, in pursuance of which the offender was imprisoned and is sent to such school. The possession of the warrant or other document in pursuance of which a youthful offender is sent to a certified reformatory school shall be a sufficient authority for his detention in such school. By sect. 16 the parent, step-parent or guardian, or Sect. 16. if there be no parent, step-parent or guardian, then Power to the god-parent or nearest adult relative of any toaTOlv^o youthful offender sent or about to be sent to a cer- remove tified reformatory school which is not conducted in offender to accordance with the religions persuasion to which the co^Ju°ted offender belongs, may apply to the court by whom in accord- such offender was sentenced to be sent to a reforma- ance with tory, or to the visiting justices of the prison to which ,°^SouV he was committed by that court, or to the justices or persuasion. magistrate by whom he was sentenced to be sent to a reformatory school (or justices or a magistrate having the like jurisdiction), to send or to remove such Offender to a certified reformatory school con- ducted in accordance with the offender's religious persuasion, and the court, visiting justices, justices or magistrate, as the case may be, shall, upon proof of such offender's religious persuasion, comply with the request of the applicant : provided — First, that the application be made before the offender has been sent to a certified reformatory school, or within thirty days after his arrival at such school. Secondly, that the applicant show to the satisfac- tion of the court, visiting justices, justices or magis- trate, that the managers of the school named by him are willing to receive the offender. By sect. 20, if any offender detained in a certified Sect. 20. reformatory school wilfully negldcts or wilfully re- Refusal to fuses to conform to the rules thereof, he shall,_ upon j^g°™ *° summary conviction before a justice or magistrate having jurisdiction in the place or district where the p 2 Digitized by Microsoft® 212 APPENDIX III. Sect. 21. Escaping from school. Sect. 22. Inducing offenders to escape from school. soliool is situate, be imprisoned with or -without hard lahour for any term not exceeding three months: and at the expiration of his term of imprisonment he shall by and at the expense of the managers of the school be brought back to the school from which he was taken, there to be detained during a period equal to so much of his period of detention as remained unexpired at the time of his being sent to prison. By sect. 21, if any offender sentenced to be detained in a certified reformatory school escapes therefrom, he may at any time before the expiration of his period of detention be apprehended without warrant, and if the managers of the school think fit, but not otherwise, may (any other act to the contrary not- withstanding) be then brought before a justice or magistrate having jurisdiction in the place or district where he is found, or in the place or district where the school from wliich he escaped is situate, and he shall thereupon be liable on summary conviction before such a justice or magistrate to be imprisoned with or vnthout hard labour for any term not exceed- ing three months; and at the expiration of such term he shall by and at the expense of the managers of the school be brought back to the school from which he escaped, there to be' detained during a period equal to so much of his period of detention as remained unexpired at the time of his escaping. By sect. 22, every person who commits any of the following offences (that is to say) — Pirst, knowingly assists directly or indirectly an offender detained in a certified reformatory school to escape from the school ; Secondly, directly or indirectly induces such an offender to escape from the school ; Thirdly, knowingly harbours, conceals or prevents from returning to the school, or assists in harbour- ing, concealing or preventing from returning to the school, any offender who has escaped from a certified reformatory school, shall, on simunary conviction before the justices or a magistrate, be liable to a penalty not exceeding 20/., or at the discretion of the justices to be imprisoned for any term not exceeding two months with or without hard labour. Digitized by Microsoft® TUTELARY AND ALTEKTJATIVE JURISDICTION. 213 By sect. 25, the parent, or step-parent, or other person legally liable to maintain any youtUul offender detained in a certified reformatory school, shall, if of suflB.cient ability, contribute to his support and maintenance therein a sum. not exceeding 5s. per -week. On the complaint of the inspector of reformatory schools, or of any agent of the inspector, or of any constable under the directions of the in- spector (with which directions the constable is hereby required to comply), at any time during the continu- ance of the offender in the school, any justices or magistrate having jurisdiction at the place where the parent, step-parent, or other person liable as afore- said resides, may, on summons to the parent or step- parent, or other person liable as aforesaid, examine into his or her abUity, and may, if they or he think fit, make an order or decree on him or her for the payment to the inspector of reformatory schools, or to an agent of the inspector, of such weekly sum, not exceeding 5s. per week, as to them or him seems reasonable, during the whole or any part of the period for which the offender is liable to be detained in the school. Every such order or decree may specify the time during which the payment is to be made or may be until further order. By sect. 26, any justice or magistrate having juris- diction to make such order or decree may from tune to time vary the same as circumstances require," on the application either of the person on whom the order or decree is made, or of the inspector of re- formatory schools, or of any agent of the inspector, on fourteen days' notice being first given of such ap- plication to the inspector or agent, or to such person tespectively. By sect. 33, sub-sects. 1, 2, the fact that a school is certified may be proved either by producing a copy of the London Gazette containing a notice to that effect, or by producing the certificate itself or a copy thereof purporting to be signed by the inspector of reformatory schools. By sub-sect. 4, a copy of the i-ules of a certified reformatory school, purporting to be signed by the inspector of reformatory schools. Sect. 25. Order of justices for contribu- tion to mainte- nance of offenders at school. Sect. 26. Variation of order. Evidence (a.) of cer- tificate ; (b.) of rules. Digitized by Microsoft® 214 APPENDIX III. 29 & 30 Vie, c. 118, 6. 15. Industrial schools. Offenders under 12 years. Sects. 8, 9. School not to be certi- fied as in- dustrial and refor- matory. Notices of certificate to he ga- zetted. Copy of Gazette to he evi- dence. .Sect. 14. As to children under 14 yeaxs of age found begging, &c. shall be evidence of suoli rules in all legal proceed- iags whatever. By the 16th section of the Industrial Schools Act, 1866 (29 & 30 Vic. c. 118), where a child apparently under the age of twelve years is charged before two justices or a magistrate with an offence punishable by imprisonment or a less punishment, but has not been in England convicted of felony or in Scotland of theft, and the child ought, in the opinion of the justices or magistrate (regard being had to his age and to the circumstances of the case), to be dealt with, under that act, the justices or magistrate may order him to be sent to a certified industrial school. Sects. 8 and 9 of the same act say (8) that a school shall not be at the same time a certified iadustrial school under this act and a certified reformatory school under any other act ; and (9) that a notice of the grant of each certificate shall within one month be inserted by order of the secretary of state in the London or in the Edinburgh Gazette, according as the school to which it refers is in England or in Scotland. A copy of the Gazette containing the notice shall be conclusive evidence of the grant, which may also be proved by the certificate itself, or by an instrument purporting to be a copy of the certificate, and to be attested as such by the inspector of industrial schools. By sect. 14, any person may bring before two jus- tices or a magistrate any cldld apparently under the age of fourteen years that comes within any of the following descriptions, namely, — That is found begging or receiving alms (whether actually or under the pretext of selling or offer- ing for sale any thing), or being in any street or public place for the purpose of so begging or receiving akns ; That is found wandering and not having any home or settled place of abode, or proper guardianship, or visible means of subsistence ; That is found destitute, either being an orphan or having a surviving parent who is undergoing penal servitude or imprisonment ; That frequents the company of reputed thieves. Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 215 The justices or magistrate before -wliom a cluld is brought as coming within one of those descriptions, if satisfied on inquiry of that fact, and that it is expe- dient to deal with him under this act, may order ^lim to be sent to a certified industrial school. By sect. 16, where the parent or step-parent or Sect. 16. guardian of a child apparently under the age of four- As to re- teen years represents to two justices or a magistrate p^^°^ that he is unable to control the child, and that he under 14 desires that the child be sent to an industrial school years of under this act, the justices or magistrate, if satisfied ^?^ ™ . on inquiry that it is expedient to deal with the chUd parents, under this act, may order him. to be sent to a certified &c. industrial school. By sect. 17, where the guardians of the poor of a Sect. 17. union or of a parish wherein relief is administered As to re- by a board of guardians, or the board of management ^^^'^ of a district pauper school, or the parochial board of a under U .parish or combination, represent to two justices or years of a magistrate that any chUd apparently under the age ^^^^ of fourteen years maintained in a workhouse or houses, pauper school of a union or parish, or in a district pauper pauper school, or in the poorhouse of a parish or ^^°°^' combination, is refractory, or is the child of parents either of whom has been convicted of a crime or offence punishable with penal servitude or imprison- ment, and that it is desirable that he be sent to an industrial school under this act, the justices or magis- trate may, if satisfied that it is expedient to deal with the child under this act, order him to be sent to a certified industrial school. By sect. 18, the order of justices or a magistrate Sect. 18. sending a child to a school shall be in writing signed Form and by the justices or magistrate, and shaU specify the ™^*J°*'^^. name of the school, which (whether situate within ingcMdto the jurisdiction of the justices, &c. or not) shall be school. a certified industrial school (cf. sect. 9, supra), the managers of which are wiLLing to receive the child._ In determining on the school the justices or magis- Religious trate shaU endeavour to ascertain the reUgious per- ^^^^^*^^^ suasion to which the child belongs, and shall, _ if possible, select a school conducted in accordance with Digitized by Microsoft® 216 APPENDIX III. Time of detention to be spe- cified. Sect. 20. Parent, &o. may apply to remove chUd to a school con- ducted in accordance ■with child's religious persuasion. Sect. 19. Temporary detention in 'work- house, &c. such religious persuasion, and the order shall specify such religious persuasion. The order shall specify the time for which the child is to be detained in the school, being such time as to the justices or magistrates seems proper for the teaching and training of the child, but not in any case extending beyond the time when the child wiU. attain the age of sixteen years. By sect. 20, if the parent, step-parent or guardian, or if there be no parent, step-parent or guardian, then the god-parent or nearest adult relative of a child sent or about to be sent to a certified industrial school which is not conducted in accordance with the religious persuasion to which the child belongs, states to the justices or magistrate by whom the order of detention has been or is about to be made (or to two justices or a magistrate having the like jurisdiction) that he objects to the child being sent to or detained in the school specified or about to be specified in the order, and names another certified industrial school in Great Britain which is conducted in accordance with the religious persuasion to which the chUd be- longs, and signifies his desire that the child be sent thereto, then and in every such case the justices or magistrate shall, upon proof of such child's religious persuasion, comply with the request of the applicant, provided, — First, that the application be made before the child has been sent to a certified industrial school, or within thirty days after his arrival at such a school : Secondly, that the applicant show to the satis- faction of the justices or magistrate that the managers of the school named by hiTn are willing to receive the child. By sect. 19, two justices or a magistrate, while inquiry is to be made respecting a child or respecting a school to which he may be sent, may, by order signed by them or him, order the child to be taken to the workhouse or poorhouse of the union, parish or combination in which he is found or resident, — or where (in Scotland) there is no such poorhouse, or the Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 217 poorliouse is at an inconvenient distance, to such, otlier place, not being a prison, as the magistrate thinks fit, — the occupier whereof is -willing to receive him, — and to he detained therein at the cost of the union, parish or combination for any time not exceeding seven days, or ujitil an order is sooner made for his discharge or for his being sent to a certified industrial school ; and the guardians of the poor for the union or parish, or the keeper of the poorhouse or other per- sons to whom the order is addressed, ai'e and is hereby empowered and required to detain him accordingly. By sect. 32, if a cluld sent to a certified industrial Sect. 32. school, and while liable to be detained there, being Offences at apparently above ten years of age, and whether lodg- ^™°°'> '^'^■ ing in the school itself or not, wilfully neglects or wilfully refuses to conform to the rules of the school, he shall be guilty of an ofience against this act, and on simmiary conviction thereof before two justices or a magistrate shall be Kable to be imprisoned, with or without hard labour, for any term not less than fourteen days and not exceeding three months, and the justices or magistrate before whom he is con- victed may direct hiiD to be sent at the expiration of the term of his imprisonment to a certified reformatory school, and to be there detained subject and according to the provisions of the Eeformatory Schools Act, 1866 (29 & 30 Vic. c. 117, supra). By sect. 33, if a child sent to a certified industrial Sect. 33. school, and while liable to be detained there, and Penalty whether lodging in the school itself or not, escapes °° °^g from the school, or neglects to attend thereat, he from shall be guilty of an offence against this act, and school, may at any time before the expiration of his period of detention be apprehended without warrant, and may (any other act to the contrary notwithstanding) be then brought before a justice or magistrate having jurisdiction in the place or district where he is found, or in the place or district where the school from which he escaped is situate; and he shall thereupon be liable, on summary conviction before such a justice or magis- trate, to be, by and at the expense of the managers of the school, brought back to the same school, there to be detained during a period equal to so much of Digitized by Microsoft® 218 APPENDIX III. Sect. 34. Penalty on persons mducing offenders to escape from cer- ■ tified in- dustrial schools. Sect. 39. Contribu- tion by parent, &c. Sect. 40. Order for enforce- ment of his period of detention as remained unexpired at the time of his committing the ofEence. If the child charged with such an offence is appa- rently above ten years of age, then on his summary conviction of the offence before two such justices or such a magistrate he shall be liable, at the discretion of the justices or magistrate, instead of being sent back to the same schpol, to be imprisoned with or without hard labour for any term not less than fourteen days and not exceeding three months, and the justices or magistrate before whom he is convicted may direct him. to be sent at the expiration of the term of his imprisonment to a certified reformatory school, and to be there detained subject and according to the provisions of the Eeformatory Schools Act, 1866 (29 & 30 Vic. c. 117, supra). By sect. 34, if any person does any of the follow- ing things, (that is to say,) — First, knowingly assists, directly or indirectly, a child liable to be detained in a certified ittdustrial school to escape from the school ; Second, directly or indirectly induces such a child so to escape ; Third, knowingly harbours or conceals a child who has so escaped, or prevents him from returning to school, or knowingly assists in so doing, — Every such person shall be guilty of an offence against this act, and shall, on summary conviction thereof before two justices or a magistrate, be liable to a penalty not exceeding twenty pounds, or, at the dis- cretion of the justices, to be imprisoned for any term not exceeding two months, with or without hard labour. By sect. 39, the parent, step-parent, or other person for the time being legally liable to maintain a child detained in a certified industrial school, shall, if of sufficient ability, contribute to his maintenance and training therein a sum not exceeding five shillings per week. By sect. 40, on the complaint of the inspector of industrial schools, or of any agent of the inspector, or of any constable under the directions of the in- spector (with which directions every constable is Digitized by Microsoft® TUTELARY AND ALTERNATIVE JURISDICTION. 219 tereby required to comply), at any time during the contribu- detention of a child in a certified industrial school, ^^°^ ^J . two justices or a magistrate having jurisdiction at P*'^™ ' the place where the parent, step-parent, or other person liable as aforesaid resides, may, on summons to the parent, step-parent, or other person liable as aforesaid, examine into his ability to maintain the child, and may, if they or he think fit, make an order or decree on him for the payment to the inspector or his agent of such weekly sum, not exceeding five shillings per week, as to them or him seems reason- able, during the whole or any part of the time for which the child is liable to be detained in the school. Every such order or decree may specify the time diiring which the payment is to be made, or may direct the payment to be made until further order. ^ is ^ ^ v.; *- The secretary of state may, in his discretion, remit whoUy or partially any payment so ordered. Two justices or a magistate having jurisdiction to ' make such an order or decree may from time to time vary any such order or decree as circumstances require, on the application either of the person on whom such order or decree is made, or of the inspector of indus- trial schools, or his agent, on fourteen days' notice being first given of euch application to the inspector or agent, or to such person respectively. Besides the above instances of alternative juris- 38 & 39 Vic. diction, a defaulting workman has, by the Conspiracy <=. 86, s. 9. and Protection of Property Act, 1875 (38 & 39 Vic. c. 86, s. 9), the power of choosing whether his case shaE be dealt with summarily or by indictment. Digitized by Microsoft® Digitized by Microsoft® ( 221 ) Appendix IV. SCHEDULE— FORMS, &c. [11 & 12 Vic. c. 43.] — *■ — (A.) Summons to the Defendant upon an Information or Complaint. To A. B., of {labourer]. Wiereas informatioii hati tHs day been laid [or com- plaint hatli this day been made] before the undersigned [owe] of her Majesty's justices of the peace in and for the said [county] of for that you [here state shortly the matter of the information or complaint] : These are there- fore to command you, in her Majesty's name, to be and appear on at o'clock in the forenoon at before such justices of the peace for the said county as may then be there, to answer to the said information [or complaint], and to be further dealt Tvith according to law. Given under my hand and seal, this day of in the year of our Lord at in the [county] aforesaid. J. S. (L.S.) (B.) Warrant where the Summons is disoheyed. To the constable of and to aU other peace ofiB.cers in the said [county] of Whereas on last past information was laid [or complaiat was made] before the undersigned, [one] of her Majesty's justices of the peace in and for the said county of for that A. B. [&c., as in the summons] : And whereas I then issued my summons unto the said A. B., commanding him in her Majesty's name, to be and ap- pear on S't o'clock in the forenoon at before such justices of the peace for the said county as might then be there, to answer to the said information [or Digitized by Microsoft® 222 APPENDIX IV. complaint], and to be furtlier dealt witli according to law: And whereas the said A. B. hath neglected to be or appear at the time and place so appointed in and by the said summons, although it hath now been proved to me upon oath that the said summons hath been duly served upon the said A. B. : These are therefore to command you, in her Majesty's name, forthwith to apprehend the said A. B., and to bring him before some one or more of her Majesty's justices of the peace in and for the said county, to answer to the said information [or complaint], and to be further dealt with according to law. Given under my hand and seal, this day of in the year of our Lord at in the [county'] aforesaid. J. S. (L.S.) (C.) Warrant in the first Instance. To the constable of and to all other peace officers in the said [(xurdy\ of "Whereas information hath this day been laid before the undersigned, [o«e] of her Majesty's justices of the peace in and for the said [coaraiy] of for that A. B. [Aere staix, shortly the matter of the information] ; and oath being now made before me substantiating the matter of such information. These are therefore to command you, in her Majesty's name, forthwith to apprehend the said A. B., and to bring him before some one or more of her Majesty's justices of the peace in and for the said county, to answer to the said information, and to be further dealt with ac- cording to law. Given under my hand and seal, this day of in the year of our Lord at in the [county] aforesaid, J.S. (L.S.) (D.) Warrant of Committal for safe Custody during an Adjournment of the Hearing. To W. T., constable of and to the keeper of the [hoii^e of correction] at Whereas on last past information was laid [or complaint was made] before the undersigned, [one] of her Digitized by Microsoft® SCHEDULE FORMS, ETC. 223 Majesty's jiistices of the peace in and for tlie said [couniy'] of for that [. cliildren imder fourteen found begging, ill. age how determined, 130. Digitized by Microsoft® INDEX. 259 JUVENILE OTFEKD^ILB— continued. Industrial schools — eontimied. refractory children, 215, 217. order, form of, 215. religious belief, 215, 216. temporary detention in -workhouae, 216, 217. escaping, 145, 217. inducing offenders to escape, 218. contribution by parent, 218, 219. KILLING CONSTABLE, while effecting arrest or executing warrant, 109, 110. LIMITATION OP ACT, 95—97. MANDAMUS, will not lie to compel justices' clerk to lodge convictions, 45. to compel issue of distress, &c., 75, and see 192 — 195. appeal from justices by, 191. rule in nature of, under 11 & 12 Vie. o. 44, s. 5, ii. when granted, 192 — 195. " declming jurisdiction," 193, 194. notice to quash writ not necessary, 195. costs of writ, ib. METROPOLITAN DISTRICT, information in, 3, 6. initiative in case of unwholesome houses, &c., 29. warrant, on issue and disobedience of summons, 11, 12. may be executed out of the district without backing', 17, 102. warrants issued outside to persons within said district, when void, 102. recognizances, estreating, 17. liabSity of master of place of pubKc resort, under 2 & 3 Vio. c. 47, s. 44..20. power to summon witnesses outside district, 24, 25. time under Metropolitan Building Act, s. 73 . . 34. assaults on women and children, 63. expense of conveying prisoner, 69. court of summary jurisdiction under Prevention of Crimes Act, 84. clerks in, 88. fees, ii. penalties — to whom payable, 90, 91. forms, 91, 92. magistrate — authority of, 93 — 95. deputy magistrates, 94. powers ooiSerred by 2 & 3 Vio. c. xciv, not affected by 11 & 12 Vio. c. 43..95. search warrant in, 105. s 2 Digitized by Microsoft® 260 INDEX. METROPOLITAN D18TBJ.0T— continued. searoli of boats, carriages, &e., by constable, 107. arrests in gaming house in, 106. entry (into houses, &o.) under Sanitary Act, 108. arrest without warrant in, 141, 143. fSee Aeeebt ■VfiiHOTiT Waeeaot. under 2 & 3 Vic. c. 47, s. 64. .114, 117. ss. 62— 69.. 118— 121. of drivers of hackney carriages in, 118. of released convicts, &c., 121 — 123. of vagrants in, 123. stopping carts, boats, &c., 120, 121. detaining at station-house persons arrested in, 118, 119, 121. metropolitan district equivalent to " police district " under 34 & 35 Vic. c. 112, ss. 3, 20. .121. METEOPOLITAN MAGISTEATES, 93, 94. NIGHT, 138—140. NOTICE. &e Appeal; Case stated; Ceetioeaei; Time. OATHS, of whom, 13. wheil necessary, 12. profane, 28. OBJECTIONS, time for, 5, 8. to jurisdiction need not be on the point raised, 9. See Infobmation ; Jueisdiciion ; Stooions. OFFENCES, when several acts amount to one, 28. several must not be included in one conviction, 31. joint, id. continuing, 33, 34. OEDER. See JtmismoTioN. for payment of money, what within 11 & 12 Vic. c. 43. . 32, 33. verbal, when sufficient if afterwards formally drawn up, 45. compared with convictions. See Convictions. PAETIES, several defendants in one information, 29. master responsible for servant, when, ill. by whom information to be laid, ii. Digitized by Microsoft® INDEX. 261 FARTmS— continued. right to appear by counsel, &o., 37 — 39. address the court and give evidence, i6. ■whether attorney can plead guilty for defendant, quare ? 44, 45. vrhen prosecutor or complainant may give evidence, 49 — 54. PENALTIES, several for joint offences, 31. single, 57, 58. how recoverable, 63, 64. mandamus to compel enforcement of, 75, 191 — 195. power to remit, 82. payment of limited amoimt, how reckoned, 4. on pajrment of, distress not to be levied, or party if imprisoned to be discharged, 82, 83. tender of, 83. to whom payable, 88 — 91. regulations as to, 88. particular statutable application, 90. must be observed in conviction, ib. "POLICE DISTRICT" defined, 121. PREVENTION OF CRIMES ACT, summary proceedings under, 84, 85. PRISON BREACH, 146, 147. PROCEDENDO, 187. PROCEDURE on information, 26. PROHIBITION, to magistrates, 195. lies in. civil and criminal cases alike, 196. notwithstanding statute limiting defendant's right of objection, ib. does not Ue where subject of suit is within jurisdiction of inierior court, ib. though matter outside jurisdiction may have arisen, 196, 197. when it lies after sentence, 197. PROPERTY, description of, 17. of partners, ib. counties, 18. provided for poor, ib. ia. materials for parish roads, ib. turnpike roads, ib. Conunissioners of sewers, 19. PROSECUTOR, when competent witness, 49 — 64. may be imprisoned in default of distress for costs, 76, 77. Digitized by Microsoft® 262 INDEX. RECOGNIZANCE, to appear, prooeedinga in, 16. estreating, 17. when party released on fails to appear, 27, 55, G7. bailing by constables, 153. in metropolis, 121. REFOEMATOEY SCHOOLS, 145, 209—213. See Juvenile Oi'I'enhebs. REMANDING- must not be for an unreasonable time, 55. REPEALING CLAUSE, 97. RESISTING OFFICER, 102, 109, 110, 111, 125, 126, 128, 147, 149, 150. RESTITUTION OF PROPERTY under 18 & 19 Vic. c. 126, ss. 8, 22.. 205. SEARCH, under authority otter than that of magistrate, of barges, &o., 107. of (ia metropolis) carriages, boats, &c., ib. of prisoner, 150 — 152. SEARCH WARRANT, 104—109. ■when lawful, 105—107. in case of, adulterated bread, 106. betting-houses, &c., ib. coin (false), ib. coining tools, ib. explosives, ib. forged notes, &c., ih. gunpowder kept for purpose of offences against MaHoious Injuries Act, ib. linen (unlawfully pawned), ib. liquors, ib. marine stores, ib. Obscene books, ib. old metals, ib. petroleum, ib. stolen goods, 105, 106. in metropolis, 105. oath — in what cases necessary, ib. what must be proved, 105, 109. necessary particulars in warrant, 109. how and when executed, ib. what may be seized under, ib. And sec Entey ; Seaech. Digitized by Microsoft® INDEX. 263 SUMMONS, wlio to issue, 83 — 85. ho-w to be served, 2, 4, 5. objection, time for, 3, 5. informality cured by appearance, ib. on neglect of, justices may proceed ex parte, 10. See Con- viction. SUNDAY, execution of -warrants on, 103. TIME, for complaint or information, 32. in continuing ofEences, 33, 34. wben it begins to run, 34, 35. exclusive or inclusive of first and last days, 35, 36. when it need not appear in conviction, 36. ■when it applies to conviction, ib. ' ' calendar months, " ib. in drawing up formal conviction after action brought for defective one, 46. in notice of appeal, 156, 157. for stating case, &c. under 20 & 21 Vic. c. 43. .167,, 168, 169. in certiorari and notice of, 184 — 186. TITLE, claim of, ousts jurisdiction of justices if bond fide, 7. TUENPIKE-ROADS, misconduct on, 117. VAEIANCE, effect of 11 & 12 Vie. c. 43, s. 1, in curing, 6. course when party summoned is deceived by, 26. WAERANT TO APPREHEND. And see Aeeest undee Wabkant. form of, 12, 13, 101. who to execute, 102. when issued, 9 — 11. execution on Sunday, 103. in metropolis, 11, 12. to compel appearance, 17. where and how executed, 13, 102. bacting, 14. no objection for want of form, 15. when issued in the first instance, 10, 28. what it must state, 11. what must be proved on oath before issuing of, 11, 12. in metropolis, ib. Digitized by Microsoft® 264 INDEX. WABRANT OF COMMITMENT, 66. And see Commitment. must not recite offence differing from that recited in conviction, 92. in case of conviction under statute, the section convicted tmder should appear, ib. issue of, after decision of case under 20 & 21 Vic. c. 43.. 176. must not be vague, 92. what necessary and sufficient statement, 92, 93. informal arrest or imprisonment on, 73, 92. must not be for unreasonable time, 55. in metropolis, 91. WAEEANT OP DISTRESS, ■who to issue, 83 — 85. who to execute, 70 — 73. And see Distebss. issue of, after decision of case under 20 & 21 Vic. c. 43.. 176. "WARRAIS'T (Q-ENERAL), 104. See Seaech Waeeaots. "WARRANT (TO SEARCH). See Seaech "WAEEAifTs. WHIPPING (under 25 Vic. o. 18, s. 1). See Juvenilb Oefendebs. WITNESSES, power to summon, 22, 24 — 25. or bring by warrant, 22, 23. power of metropoHtau magistrates over, 24, 25, 155. to commit on refusal to be examined, 23, 24. crown office subpoena, 24, 25. expenses of, 60 — 63. prosecutor, when competent, 49 — 54. informer, when competent, 49 — 52. defendant, when competent, 53, 54. WORKHOUSES, smuggling liquor into, 145. detention of juvenile offenders in, 216, 217. London : Printed by C. F. Eoworth, Bream's Bufldinss, Chancery Lane. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® ''■W,fl