SECT. II. THE PROCESS TO ISSUE TO DEFENDANTS, &c.
1. The Process to issue on Informations.
2. The Process to issue on Complaints.

(1.) On Infor

mations:

11 & 12 Vict. c. 43.

Summons to defendant. Sect. 1.

How served.

1. The Process to issue on Informations.

On the information being laid that any person has com mitted, or is suspected to have committed, any offence or ac within the jurisdiction of the justice or justices, for which h is liable by law, upon a summary conviction for the same before a justice or justices of the peace, to be imprisoned, or fined, or otherwise punished, the justice is to issue a summons (A.), "directed to such person," 1 stating shortly the matter of such information, and requiring him to appear at a certain time and place before the same justice or justices, or before such other justice or justices of the same county, &c., as shall then be there, to answer to the said information, and to be further dealt with according to law (11 & 12 Vict. c. 43, s. 1); and no objection can be taken to the summons for want of form. (Id.)

Every summons is to be "served by a constable or other peace officer, or other person to whom the same shall be "delivered, upon the defendant, by delivering the same to the party personally,—or by leaving the same with some person "for him at his last or most usual place of abode" (s. 1). 2

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1 It is the practice generally for this summons to be signed in duplicate; but see Note 2, infra.

2 R. v. Chandler, 14 East, 267, decided that leaving a copy at the house is sufficient, and that the delivery may be to a person on the premises, apparently residing there as a servant. In Mason v. Bibby, 33 L. J. (Ñ. S.) M. C. 85; 9 Law T., N. S. 692, the service of a notice under "The Public Health Act, 1848," 11 & 12 Vict. c. 63, upon a clerk at the office of the "owner," where the owner carried on his business, is a service upon some "inmate of his place of abode under sect. 150 of that act. It is to be regretted that all summonses cannot be served at the countinghouse or place of business of the parties, and that justices are not empowered to require defendants to produce documents or articles in their custody which are the subject of the information or complaint, subject to the same law as to a notice to produce. As to the "last place of abode," see the cases as to service of summonses in bastardy, tit. "Bastards," Vol. II., Part III. Upon the subject of the sufficiency of the service of a summons issued under the authority of the 11 & 12 Vict. c. 43, it will be well to refer to the recent case of Re William Smith, 32 Law T.. N. S. 394, 39 J. P. 292, 322, in which the Court of Queen's Bench expressed its views in a very decided manner. The facts were these:-An information was on the 9th of March laid against the defendant for an assault committed on the informant on the previous 6th of the same

c. 43.

Sect. 1.

The summons, it appears, may be served by any person to 11 & 12 Vict. whom the same is delivered by the justice (i. e. the informant or complainant in most cases), or by any constable or peace officer. Where after-passed statutes regulate the service it must be complied with, the provisions of this statute extending to past acts as well as to acts thereafter to be passed when the latter contain no provision to the contrary. A summons may be served anywhere, and does not require backing like a

warrant.

month, whereupon a summons was issued, which was on the 10th left at
the house of the defendant's mother, where he lived when at home.
Upon the return of the summons on the 12th, the defendant not appear-
ing, the case was heard ex parte, and the defendant was convicted and
sentenced to six months' imprisonment with hard labour. The defendant
being afterwards apprehended upon a warrant under this conviction, a
rule for a certiorari was moved for to bring up the conviction in order
that it might be quashed upon the ground of want of jurisdiction in the
justices to make it. The ground of the motion was, that the defendant
had not been legally served with the summons. It appeared that he was
a fisherman, and on the 9th of March (the day on which the summons
was applied for and the day before it was served) he went to sea and
remained on board a lugger fishing off the coast until the 13th of March,
when he landed and was immediately arrested upon the warrant. He
denied that he had any knowledge of the summons having been issued
or served until after his conviction. There was additional evidence of
the summons not having come to his knowledge. In support of the con-
viction it was argued that the question of the sufficiency of the service of
the summons was one entirely for the justices, and that, according to the
cases of Re Williams, 21 L. J., M. C. 46, and Reg. v. Evans and Gale, 19
L. J., M. C. 151, the service was sufficient. The court, however, were
unanimous in their judgment, that the service was bad. Cockburn, C. J.,
in delivering his judgment said, "This is a very dangerous exercise of
power on the part of the magistrates. The alternative course of issuing
their warrant to apprehend the defendant and bring him before them to
answer the complaint would have been much safer. They ought not to
have acted as they have done unless they were certain that the man was
keeping out of the way in order to evade service of the summons.
It is true that the latter part of section 2 provides, that if the party sum-
moned failed to appear, then, if it be proved on oath or affirmation to the
justice or justices then present that such summons was duly served upon
such party a reasonable time before the day so appointed for his appear-
ance as aforesaid, it shall be lawful for such justice or justices of the
peace to proceed ex parte and adjudicate as if such party had personally
appeared; but, on that, I think it should be shown that the circumstances
were such, and that the time between the leaving of the summons and
the time appointed for appearance were such as to lead to the conclusion
that the summons must have reached the defendant." It thus appears
to be well established that to give justices jurisdiction to proceed ex parte
on the non-appearance of the defendant, it must appear that the sum-
mons has been either served personally, or has been left with some person
for him at his last or most usual place of abode, and that in the latter
case there are circumstances to lead to the conclusion that the summons
must have reached the defendant.

....

If the act of parliament under which the summons is issued be other than the 11 & 12 Vict. c. 43, then the sufficiency of the service of the summons will be dependent upon the peculiar provisions of such other act.

Sect. 2 enacts,—"that if the person so served with the summons as aforesaid shall not be and appear before the justice or justices at the time and place mentioned in such summons, "and it shall be made to appear to such justice or justices by "oath or affirmation that such summons was so served 3 what "shall be deemed by such justice or justices to be a reason"able time before the time therein appointed for appearing to "the same, 4 then it shall be lawful for such justice or justices, "if he or they shall think fit, upon oath or affirmation being "made before him or them substantiating the matter of such "information to his or their satisfaction, to issue his or their

Thus, under the 35 & 36 Vict. c. 63 (Bastardy Act) the power to proceed ex parte depends upon proof "that the summons was duly served on such person, or left at his last place of abode six days at least before the petty sessions." And under this enactment several cases have come before the Superior Court where the justices below have made an order ex parte, where the service of the summons has been by leaving it at the last place of abode of the defendant, the defendant himself having previously left such abode and gone abroad, such order being upheld upon the ground that the words of the statute were fulfilled, and that it was a matter for the discretion of the justices. See Reg. v. Evans and Gale, 19 L. J., M. C. 151; Reg. v. Davis, 22 L. J., M. C. 143; 21 Law T., N. S. 170; Reg. v. Brown, 1 Law T., N. S. 29; Reg. v. Damarell, 37 L. J., M. C. 21. Where the case is not within the operation of the 11 & 12 Vict. c. 43, and no mode of service of the summons is provided for, then the service must be personal. In Rex v. Hall, 6 Dow. & Ry. 84, Bayley, J., in his judgment said "It is consistent with every analogy that a party shall not be concluded without personal service of the process which is to affect his liberty. It is laid down in Burn, Boscawen, Nares and other text books, that personal service of the summons is necessary, unless where it is expressly dispensed with by statute. Of this opinion was Lord C. J. Parker in Rex v. Simpson, 10 Mod. 345."

It may be taken, therefore, as well established, that-(1) Where the service of the summons is regulated by the 11 & 12 Vict. c. 43, it should be of such a nature as reasonably to lead to the belief that the summons itself has come to the knowledge of the defendant before the day for appearance, though it may not actually have come to his hands; (2) Where the service of the summons may, under the provisions of any other act of parliament, be effected by leaving the same at the defendant's last place of abode, then, if so served, it will be legally sufficient even if it cannot be assumed that a knowledge of it has been obtained by the defendant, though in such case it will be prudent in the justices not thereupon to hear the case ex parte, but to take some other steps to ensure more perfect service; (3) That where no mode of service is prescribed by statute, then the service must be personal.

3 Vide Oke's "Formulist," 6th ed., Nos. 10, 11, pp. 5, 6, for a form of deposition of the Service of the Summons.

4 Time of Service of Summons.]—The justices must determine what is a reasonable time of service (having regard to the nature and circumstances of the charge the defendant has to answer), and also as to the sufficiency of the service:-but his appearance waives any irregularity in the service. (R. v. Johnson, 1 Str. 261; R. v. Stone, 1 East, 649; Ex parte Hopwood, 19 L. J. (N. S.) M. C. 197; Reg. v. Williams, 21 L. J. (N. S.) M. C. 46.)

c. 43.

“warrant (B.), to apprehend the party so summoned, and to 11 & 12 Vict. "bring him before the same justice or justices, or before some "other justice or justices of the peace in and for the same county, &c., to answer to the said information or complaint, "and to be further dealt with according to law."

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in the first

Or, upon such information being laid as aforesaid, for any A warrant "offence punishable on conviction, and substantiated upon instance. oath, a justice may issue in the first instance a warrant (C) "for apprehending the defendant; or if the summons have "been duly served the justice may proceed to hear the case

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แ

ex parte” (s. 2, and see s. 13, post, pp. 160, 161. See however as to sums recoverable as civil debts, post).

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what form.

Sect. 3.

Sect. 3 enacts,-"that every such warrant to apprehend Warrant, in defendant, that he may answer to any such information or complaint as aforesaid, shall be under 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 other person by name, or generally to the constable of the parish or other "district within which the same is to be executed, 5 without " naming him, or to such constable and all other constables "within 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." 6

That section further proceeds, "that it shall not be necessary to make such warrant returnable at any particular time, "but the same may remain in full force until it shall be exe"cuted;"-and "may be executed by apprehending the de"fendant at any place within the county, riding, division, "liberty, city, borough, or place within which the justice.

Where and

how warrant

executed.

5 The forms of warrant in 11 & 12 Vict. c. 43, are addressed "To the constable of (G)." This direction does not include a county police constable (if there is such a person as a constable of G.), and he cannot execute a warrant so directed. (Reg. v. Saunders, 36 L. J. (N. S.) M. C. 87; 16 Law T., N. S. 331.) Care should be taken to address it to the proper constable.

6 Vide mode of describing the offender when his name is not known, Oke's "Formulist," 6th ed., p. 7, note.

c. 43.

11 & 12 Vict. " issuing the same shall have jurisdiction; 7 or in case of fresh pursuit, at any place in the next adjoining county or place "within seven miles 8 of the border of such first-mentioned county, &c., without having such warrant backed," and in other cases it may be backed (11 & 12 Vict. c. 43, s. 3).

No objection
thereto.
Sect. 3.

Backing warrants.

(2.) On Complaints:

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No objection can be taken or allowed to any such warrant for any alleged defect therein in substance or in form; but it will be seen post, p. 160, that if any variance between it and the evidence adduced on the part of the informant shall appear to the justice or justices present at the hearing to have deceived or misled the defendant, they may adjourn the hearing of the case (s. 3).

The provisions of 11 & 12 Vict. c. 42, relating to the backing of warrants, are by s. 3 of the 11 & 12 Vict. c. 43, incorporated and made applicable to summary convictions and orders, and are to extend to warrants of apprehension and commitment. Those provisions are set out ante, p. 19 (see Note 5, ante, p. 16). Form (K) is for the indorsement.

FORMS.

[A, B, and C, pp. 10, 11, Oke's "Formulist," 6th ed.; K, Id. p. 7.]

2. The Process to issue on Complaints.

The provisions before given as to the process to be issued on informations, and the manner of the service and execution, will also apply to complaints, except that no warrant can be issued on a complaint till the summons is disobeyed, a summons being the proper process to issue in the first instance (see ss. 2, 10). The forms applicable to Complaints would be (A), (B) and (K).

7 A warrant, therefore, granted by a justice of two or more adjoining counties, or for a detached part of another county, will not, it is submitted, require backing, but may be executed in either, or in a city, &c. within the county; but of course it must appear on the face of such warrant that the justice has jurisdiction in such two adjoining counties or detached part, &c. It is usual to address the warrant to the constable of the parish, or to the constable of a particular police force, &c. in which the offence was committed. See hereon Note 5 supra.

8 The mode of measuring distances in this and similar cases is as the crow flies. See Reg. v. Saffron Walden, 9 Q. B. 76; Stokes v. Grissell, 14 C. B. 678.