PROCESS. 11 & 12 Vict. c. 43. (Summins), diction of such justice or justices for which he 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,-and also in all cases where a complaint shall be made to any such justice or justices upon which he or they have or shall have authority by law to make any order for the payment of money or otherwise,-then and in every such case it shall be lawful for such justice (m) or justices of the peace to issue his or their summons directed to such person, stating shortly the matter of such information or complaint, 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. . . . or place as shall then be there, to answer to the said information or complaint, and to be further dealt with according to law;how served (n). and every such summons shall be served by a constable or other peace officer, or other person to whom the same shall be delivered, upon the person to whom it is so directed, 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; and the constable, peace officer, or person who shall serve the same in manner aforesaid shall attend at the time and place and before the justices in the said summons mentioned, to depose, if necessary, to the service of the said summons :-provided always, that nothing herein mentioned shall oblige any justice or justices of the peace to issue any such summons in any case where the application for any Defect or variance order of justices is by law to be made ex parte." [No objection is to be (s. 9, infra). allowed for any defect or variance between such information, complaint, or summons and the evidence adduced; but the justice may adjourn the hearing.] If disobeyed, warrant. 2. "If the person so served with a 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 what shall be deemed by such justice 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 think fit, upon oath or affirmation being made before him or them substantiating the matter of such information or complaint to his or their satisfaction, to issue his or their warrant to apprehend the party so summoned, and to bring him before the same justice or justices, or before some other justice or justices of the peace in and for the same county . or place, to answer to the said information or complaint, and to be further dealt with according to Warrant in first law;-or upon such information 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 shall 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 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 place, to answer to the said information, and to be further dealt with accordFx parte hearing ing to law;-or if, where a summons shall be so issued as aforesaid, and (8. 13, post, p. 28). instance. or (m) By s. 29, post, p. 37, one justice may issue the summons or warrant, even where the hearing must be before more than one justice. (n) Service of summons.-A copy served at the house upon some person apparently residing there as a servant is a good service (R. v. Chandler, 14 East, 267). The justice is to decide as to the reasonableness of the service (Re Williams, 21 L. J. M. C. 46; 2 L. M. & P.P. C. 580); the defendant's appearance cures irregularity of service, unless he takes his objection at first (R. v. Kingsby, 15 J. P. 65; 16 L. T. 408; R. v. Berry, 28 L. J. M. C. 86; Bell, C. C. 46; 32 L. T. 324). PROCESS. c. 43. upon the day and at the place appointed in and by the said summons for the appearance of the party so summoned, such party shall fail to appear accordingly in obedience to such summons, then and in every such case, if 11 & 12 Vict. it be proved upon oath or affirmation to the justice or justices then present that such summons was duly served upon such party a reasonable time before the time so appointed for his appearance as aforesaid, it shall be lawful for such justice or justices of the peace to proceed ex parte to the hearing of such information or complaint, and to adjudicate thereon, as fully and effectually, to all intents and purposes, as if such party had personally appeared before him or them in obedience to the said summons." 3. “Every such warrant to apprehend a defendant, that he may answer Warrant; 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, how directed; or generally to the constable of the parish or other district within which the same is to be executed, 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 contents of; 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... or place, to answer to the said information or complaint, and to be further dealt with according to law;-and 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 executed;— and such warrant may be executed by apprehending the defendant at how executed (6). any place within the county .. 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 miles of the border of such first-mentioned county. ... or place, without having such warrant backed as hereinafter mentioned; and in all cases where such warrant shall be directed to all constables or peace officers within the 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, borsholder, or other peace officer for any parish, township, 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 within the parish, township, hamlet, or place for which he shall be such constable .. other peace officer." [The provisions of 11 & 12 Vict. c. 42, ante, p. 8, as Backing warto backing warrants are extended to these warrants, and to warrants of rants. commitment under this Act (and also to distress warrants by s. 19.) The section next contains a proviso similar to that in s. 1 as to variances between warrants and the evidence adduced. See s. 9, infra.] ... or 9. "In all cases of informations for any offences or acts punishable upon Variance summary conviction any variance between such information and the evi dence adduced in support thereof as to the time at which such offence or as to time, (6) For mode of executing warrants, see instructions and notes in "CoxSTABLES," post; a warrant does not expire on the death of the justice who issued it. PROCESS. 11 & 12 Vict. c. 43. place, 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, 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 or other matter. any such variance, or any variance in any other respect between such information and the 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 (p) the hearing of the case to some future day." WITNESSES. 11 & 12 Vict. c. 43. May be summoned; warrant. WITNESSES (SS. 7, 15). 7. "If it shall be made to appear to any justice of the peace, by the oatlr or affirmation of any credible person, that any person within the jurisdiction (4) of such justice is likely to give material evidence in behalf of the prosecutor 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 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. or place as shall then be there, to testify what he shall know concerning the matter of the said information or comon disobedience, plaint; and if any person so summoned shall neglect or refuse to appear at the time and place appointed by the said summons, and no just excuse shall be offered for such neglect or refusal, then (after proof upon oath or affirmation of such summons 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 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 or place as shall then be there, to testify as aforesaid, and which said warrant may, if necessary, be backed as herein-before is mentioned, in order to its being executed out of the jurisdiction of the Warrant in the justice who shall have issued the same; or if such justice shall be satisfied by evidence upon oath or affirmation, that it is probable that such person will not attend to give evidence without being compelled so to do, then, instead of issuing such summons, it shall be lawful for him to issue his warrant in the first instance, and which, if necessary, may be backed as aforesaid; and if on the appearance of such person so summoned (r) before the said last-mentioned justice or justices, either in obedience to the first instance. Refusing to be examined. (p) For the mode of adjourning, see s. 16, post, p. 29. (q) The summons of a Police Magistrate in the Metropolis is not limited as to place. A Crown Office subpana must be obtained for a witness out of the justice's jurisdiction. If the witness is in prison he may be brought up by an order from the Secretary of State, or one of the judges of the Queen's Bench, Common Pleas, or Exchequer (16 & 17 Vict. c. 30, s. 9). (r) It seems doubtful whether witnesses attending voluntarily can be committed; but the form of commitment (G. 4) given in the schedule to the Act makes no reference to the summons having issued. said summons or upon being brought before him or them by virtue of the said 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 concerning the premises as shall then be put to him, without offering any just excuse for such refusal, any justice of the peace then present, and having there jurisdiction, may by warrant under his hand and seal commit the person so refusing to the common gaol or house of correction for the county or place where such person so refusing shall then be, there to remain and be imprisoned for any time not exceeding 7 days, unless he shall in the meantime consent to be examined and to answer concerning the premises." WITNESSES. 11 & 12 Vict. c. 43. 15. "Every prosecutor of any such information, not having any pecuniary Their cominterest in the result of the same, and every complainant (8) in any such petency, and how complaint as aforesaid, whatever his interest may be in the result of the sworn. same, shall be a competent witness to support such information or complaint respectively; and every witness at any such hearing as aforesaid shall be examined upon oath or affirmation, and the justice or justices before whom any such witness shall appear for the purpose of being so examined shall have full power and authority to administer to every such witness the usual oath or affirmation." THE HEARING (ss. 12-14, 16-18). THE HEARING. 11 & 12 Vict. c. 43. 12. "Every such complaint and information shall be heard, tried, determined, and adjudged by one or two or more justice or justices of the peace as shall be directed by the Act of Parliament upon which such complaint or information shall be framed, or such other Act or Acts of Parliament as there may be in that behalf; and if there be no such direction in any such Act of Parliament, then such complaint or information may be heard, tried, determined, and adjudged by any one (t) justice of the peace for the county, riding, division, liberty, city, borough, or place where the matter of such information shall have arisen;-and the room or place in which such justice Public court. or justices shall sit to hear and try any such complaint or information shall be deemed an open and public court (u), to which the public generally may have access, so far as the same can conveniently contain them; and Counsel and the party against whom such complaint is made or information laid shall attorney. be admitted to make his full answer and defence thereto, and to have the witnesses 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 (2) such complaint or information respectively, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf." 13. "If at the day and place appointed in and by the summons aforesaid Non-appearance for hearing and determining such complaint or information the defendant of defendant. against whom the same shall have been made or laid shall not appear when called, the constable or other person who shall have served him with (8) By 14 & 15 Vict. c. 99, complainants and informers are competent witnesses in all cases, and the defendant is eligible as a witness in the hearing of a complaint, but not of an information. (f) It will be noted under the different titles in this work whenever an Act requires the case to be heard by more than one justice. () It is usual, on the request of either party, to order witnesses out of court; but if they disobey the order their evidence cannot be rejected (Chandler v. Horne, 2 M. & Rob. 423). (2) He may act as his own advocate, and afterwards give evidence himself (Cobbett v. Hudson, 22 L. J. Q. B. 11; í E. & B. 11; 20 L. T. 109); though the practice is most objectionable. 11 & 12 Vict. c. 43. or warrant. THE HEARING. the summons in that behalf shall then declare upon oath in what manner he served the said summons; and if it appear to the satisfaction of any justice or justices that he duly served the said summons (y), in that case such justice or justices may proceed to hear and determine the case in the absence of such defendant, or the said justice or justices, upon the nonEx parte hearing, appearance of such defendant as aforesaid, may, if he or they think fit, issue his or their warrant in manner hereinbefore directed, and shall adjourn the hearing of the said complaint or information until the said defendant shall be apprehended; and when such defendant shall afterwards be apprehended under such warrant he shall be brought before the same justice or justices, or some other justice or justices of the same county or place, who shall thereupon, either by his or their warrant, commit such defendant to the house of correction or other prison, lock-up house, or place of security, or, if he or they think fit, verbally to the custody of the constable or other person who shall have apprehended him, or to such other safe custody as he or they shall deem fit, and order the said defendant to be brought up at a certain time and place before such justice or justices of the peace as shall then be there, of which said order the comNon-appearance plainant or informant shall have due notice;-or if upon the day and at the of complainant. place so appointed as aforesaid such defendant shall attend voluntarily in obedience to the summons in that behalf served upon him, or shall be brought before the said justice or justices by virtue of any warrant, then, if the complainant or informant, having had such notice as aforesaid, do not appear, by himself, his counsel or attorney, the said justice or justices shall dismiss (2) such complaint or information, unless for some reason he or they shall think proper to adjourn the hearing of the same unto some other day, upon such terms as he or they shall think fit, . but if both parties appear, either personally or by their respective counsel or attorneys, before the justice or justices who are to hear and determine such complaint or information, then the said justice or justices shall proceed to hear and determine the same." s. 16, infra. Both parties appearing. 14. "Where such defendant shall be present (a) at such hearing the substance of the information or complaint shall be stated to him, and he shall be asked if he have any cause to shew why he should not be convicted, or why an order should not be made against him, as the case may be, and if he thereupon admit the truth of such information or complaint, and shew no cause or no sufficient cause why he should not be convicted, or why an order should not be made against him, as the case may be, then the justice or justices present at the said hearing shall convict him or make an order against him accordingly; but if he do not admit the truth of such information or complaint as aforesaid, then the said justice or justices shall proceed to hear the prosecutor or complainant, and such witnesses as he may examine and such other evidence as he may adduce, in support of his information or complaint respectively, 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 (y) If the defendant appear by counsel or attorney, the justice may proceed without proof of service (Ex parte Hopwood, 19 L. J. M. C. 197; 15 Q. B. 121). See also note (n), ante, p. 24. (2) This dismissal on the non-appearance of the complainant will not prevent fresh proceedings: the certificate of dismissal, provided for in s. 14, infra, is to be granted when the case is dismissed after the evidence has been heard. (a) If the defendant appears voluntarily and does not require time, the case may be heard without a summons having issued (R. v. Aiken, 3 Burr. 1785); if he is legally arrested without warrant there is no need of a written information, unless the Act specially requires it (see Ex parte Perham, 29 L. J. M. C. 33; 5 H. & N. 30 ; 1 L. T. N. §. 91 ; 23 J. P. 823). |