the hearing thereof to some other day, upon such terms as they shall think fit:(1) or

(3.) If both parties appear,() the Justices shall proceed to hear and determine the same. (3)*

19. The Justices shall, if they think fit, or if required so to do, at any time during the hearing, by either party, order that all witnesses other than the witness under examination, and the Counsel or Solicitors of the parties, do go and remain outside the Court until required to give evidence; (1)

and the said Justices may, at any time during the hearing, require the parties to state what witnesses they intend to call, and may, if they think fit, refuse to examine any witness whose name shall not have been so stated ; (5)

and if any witness shall wilfully disobey such order, he shall be deemed guilty of contempt of Court, and may be punished accordingly, in like manner as persons guilty of other contempts of Court are hereby made punishable. (6)

20. When the defendant shall be present at the hearing, the substance of the information shall be stated to him, and he shall be asked if he have any cause to show why he should not be convicted;

(1) It would appear that it is not intended that the Justices should be at liberty in such cases to refrain from dismissing the charge at their own option, but that there should be some substantial existing reason for such a course.

(*) That is, either personally or by Barrister or Counsel.

(3) The words "the same" must, it is presumed, refer to the word “information" in the foregoing subsection or in the commencement of the section.

*There is no express provision for the case of the absence of both infor mant and defendant; but inasmuch as the charge could not be properly heard in the absence of the defendant or his legal representative, it would appear that the Justices must dismiss the information. If both parties are absent after an adjournment, express power is given to the Justices (post, sec. 31) to hear the case.

(*) Care should be taken that the witnesses not under examination should not only be out of the Court, but out of hearing of the witness who is under examination; and that witnesses, when examined, should remain in Court, and not be allowed to communicate with those who are outside and yet unexamined.

(3) It might be unjust to apply this rule strictly so as to include witnesses whose evidence has turned out to be important, in consequence of something proceeding from the other side since the statement of the names of the witnesses intended to be called.

(6) See sec. 141, post. But besides punishing the witness for contempt in disobeying the order, it would appear to be competent for the Justices, in their discretion, to refuse to hear his evidence.

Summary

and if he shall thereupon admit the truth of such information, and show no sufficient cause why he should not be Jurisdiction. convicted, the Justices present shall convict him accordingly; but, Admission. if he do not admit the truth of such information,

the Justices shall proceed to hear the informant and such Hearing. witnesses as he may examine, and such other evidence as he may adduce in support of his information;

and also to hear the defendant and such witnesses as he may examine, and such other evidence as he may adduce in his defence;

and also to hear such witnesses as the informant may examine in reply, if the defendant shall have examined any witness or given any evidence other than as to his, the defendant's, general character;

and either party shall be at liberty to have the witnesses Examination examined and cross-examined by a Barrister or Solicitor of by Counsel. the Supreme Court on his behalf; but the informant (1) shall not be entitled to make any observations in reply upon the evidence given by the defendant; nor shall the defendant be entitled to make any reply upon the evidence given by the informant in reply as aforesaid:

Provided that if the information shall negative any exemption, Negatived exception, proviso, or condition in the Act or Ordinance on exception. which the same shall be framed, it shall not be necessary for the informant to prove such negative; but the defendant may prove the affirmative thereof in his defence if he would have advantage of the same.

21. The Justices having heard what each party shall have to Determinasay, and the witnesses and evidence so adduced, shall consider tion. (Jervis' Act, the whole matter and determine the same; and shall convict the s. 14.) defendant,

or dismiss the information, either upon the merits, or without prejudice to its being again heard. (See post, ss. 23 and 78.) 22. If the Justices shall convict the defendant,

a minute or memorandum thereof shall then be made, for which no fee shall be paid;

Minute.
Ibid.

and the conviction shall, afterwards-when it shall become Formal connecessary so to do()-be drawn up by the Justices in proper

(1) Or his legal representative. The right of appearance by Barrister or Solicitor would seem to imply that he is to be heard through them.

(2) That is, when it is wanted either by the informant or the defendant for some ulterior purpose.

viction.
Form Nos. 29,

30.

Summary form (12) (13) under their hands ;(1) and they shall cause the Jurisdiction. same to be lodged with the Registrar of the Supreme Court,() to be by him filed.

Dismissal.

23. If the Justices shall dismiss such information after hear

(Jervis' Act, ing upon the merits, they shall, being required so to do,(3)

s. 14.)

Forms No. 25,

26.

Previous conviction.

Party appear ing.

No written information,

unless required.

No objection

make an order of dismissal (16) of the same, and shall give the defendant a certificate (17) of such dismissal;

which certificate being produced, shall be a bar to any subsequent information (*) for the same matter against the same party.

24. If any person shall be convicted before Justices of the Peace, for an offence for which a greater punishment may be awarded when the offender has been previously convicted of a like offence,

it shall be lawful for Justices to receive evidence of any such previous conviction, (5) and to pass sentence accordingly,

although the fact of such previous conviction may not have been set forth in the information.

25. Where any person, charged with the commission of any offence, shall be brought up in custody, or shall voluntarily appear to answer the charge before Justices of the Peace having jurisdiction to hear and determine the same in a summary way, it shall be lawful for such Justices to hear and determine the case without first receiving an information in writing,

unless either of the parties to the case, before the commencement of the hearing, shall require them to take information in writing.

26. No objection shall be taken to any information, sum(1) It should be signed, at all events, by the Justices who adjudicated in the case.

(2) That is, the Registrar of the Supreme Court acting in the Province or the Registrar's district within which the conviction takes place.

(3) That is, as it would seem, at the request of the defendant, and not otherwise.

(*) Not to any civil proceeding, as is the case on a charge of assault. But as to assaults, see post, sec. 78.

(5) In the absence of any statutory provision for proving a conviction by certificate, abstract, &c., it would appear that the conviction, duly drawn up, would have had to be regularly proved; but section 139 of the Act provides for this case by making a copy of the conviction or order made by Justices, certified by the Registrar of the Supreme Court, or other proper officer of the Court where such conviction or order should have been lodged, or a copy, proved to be a true copy, evidence of the conviction. In addition to this, evidence of the identity of the person is of course necessary.

mons, or warrant to compel the appearance of the party Summary charged,

Jurisdiction.

for any alleged defect therein in substance or form, or for any for defects or variance between such information, summons, or warrant as afore- variance. said and the evidence adduced on the part of the informant at the hearing thereof; and in case of such variance as to the time at Variance as to which the offence shall be alleged to have been committed, it time. shall be sufficient if it be proved that such information was, in fact, laid within the time limited by law for the laying of the same;

and in case of any such variance as to the place in which the Variance as to offence was committed, it shall be sufficient if it be proved that place. such offence was committed within the jurisdiction of the Justices by whom such information shall be heard and determined :(1)

amend

Provided always, that in case of any such variance between Justices may the information and the evidence adduced in support thereof, it shall be lawful for the Justices hearing the case, if they shall think fit, to amend such information; and, if they think that the party charged by such information has been deceived or misled by such variance,) to adjourn the hearing of the case to some Or adjourn. future day, upon such terms as they shall think fit.

27. Every witness, at any such hearing as aforesaid, shall be Examination. examined upon oath; (9)

Form No. 5a. (Jervis' Act,

and the Justices before whom any such witnesses shall appear s. 15.) for the purpose of being so examined, shall have full power and authority to administer the usual oath to such witness. (3)

28. At the hearing of any such information, any person pre- Bystanders. sent in Court, whether he shall have been summoned to give evidence or not, may be required to give evidence ;(+)

and if he shall refuse so to do, or shall refuse to be sworn, (5) Refusing to or, having been sworn, shall refuse to answer such questions con- be examined,

(1) i.e., at present "within the Colony."

(2) Formerly, under Jervis' Act (11 and 12 Vict. c. 43), ss. 1 and 3, variances between the summons or the warrant of apprehension and the evidence might be made ground for adjournment, but the provision here is confined to misleading variances between the information and the evidence. (*) See sec. 2, ante App. p. 21, and the forms of oath and declaration in the Formulary, Form No. 5. Usual" oath would seem to comprehend all the forms usual among persons of different creeds, as well as affirmations. (*) That is, by the informant or the defendant, and probably, also, by the Justices on their own motion.

(5) The word "swear" includes "affirm" and "declare" in the case of persons allowed by law to affirm or declare instead of swearing, by "The Interpretation Act, 1868,” s. 12.

Summary cerning the matter of such information as shall then be put to Jurisdiction. him, without offering any just excuse(1) for such refusal ;

may be imprisoned.

Form No. 22.

Expenses of witnesses.

Adjournment
of hearing.
(Jervis' Act,
s. 16.)

the Justices of the Peace having cognizance of the case may commit (11) the person so refusing to any convenient gaol, lockup house, or other place of security, or to such other safe custody as such Justices may think fit, there to remain and be imprisoned for any time not exceeding seven days, unless he shall in the meantime consent to be examined and answer concerning the premises.

29. It shall be lawful for the Justices hearing any such information to order the party at whose instance any witness shall have been summoned, (*)

to pay to such witness any such sum, not exceeding ten shillings, as to such Justices shall seem fit,

for his expenses and loss of time, for each day of attending to give evidence;

and if the witness shall reside beyond one mile from the place of hearing, a sum not exceeding one shilling for every extra mile for travelling expenses, to be reckoned for one way only; (3)

and if the sums so ordered to be paid be not paid within such time as such Justices shall appoint,

then any Justice of the Peace may issue his warrant to levy the same by distress and sale of the goods of such party.

30. Before or during the hearing of any such information, it shall be lawful for any Justice or for the Justices present, (+) in their discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the parties, or their respective Attorneys

(1) As to questions which a witness may refuse to answer, see ante, pp. 43, 55.

(2) It would appear that a witness examined but not summoned is not entitled to any payment.

(3) In case a witness should be obliged to attend on several consecutive days, it would appear doubtful whether he would be entitled to the whole sum of ten shillings a day and travelling expenses for each day; but supposing the case were adjourned over several days, it would seem that he might be allowed his travelling expenses one way on each such adjournment.

(*) The adjournment before hearing would be in cases where the defendant had been apprehended before the usual day for holding Petty Sessions, and the witnesses were not present or where two Justices were not present, and the case was one on which two at least must adjudicate. The adjournment during the hearing would take place when the case could not be finished at once, or material witnesses were absent, or the Justices desired to take time to consider their judgment.