c. 43. prosecutor or complainant may examine in reply, if such defendant shall THE HEARING. have examined any witnesses or given any evidence other than as to his the defendant's general character; but the prosecutor or complainant shall 11 & 12 Vict. not be entitled to make any observations in reply (b) upon the evidence given by the defendant, nor shall the defendant be entitled to make any observations in reply upon the evidence given by the prosecutor or complainant in reply as aforesaid;-and the said justice or justices, having heard Adjudication. what each party shall have to say as aforesaid, and the witnesses and evidence so adduced, shall consider the whole matter, and determine the same, and shall convict or make an order upon the defendant, or dismiss the information or complaint, as the case may be (e);--and if he or they convict or make an order against the defendant, a minute or memorandum thereof shall then be made, for which no fee shall be paid, and the conviction or order shall afterwards be drawn up by the said justice or justices in proper form, under his or their hand and seal or hands and seals, and he or they shall cause the same to be lodged with the clerk of the peace, to be by him filed among the records of the general quarter sessions of the peace-or if the said justice or justices shall dismiss such information or Certificate of complaint, it shall be lawful for such justice or justices, if he or they shall dismissal. think fit, being required so to do, to make an order of dismissal of the same and shall give the defendant in that behalf a certificate thereof, which said certificate afterwards, upon being produced, without further proof, shall be a bar to any subsequent information or complaint for the same matters respectively against the same party :-provided always, that if the information or complaint in any such case shall negative any exemption, exception, proviso, or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same." 16. "Before or during such hearing of any such information or com- Adjournment. plaint it shall be lawful for any one 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 party or parties, or their respective attorneys or agents then present, and in the meantime the said justice or justices may suffer the defendant to go at large, or may commit him to the common gaol or house of correction or other prison, lock-up house, or place of security in the county. . . . or place for which such justice or justices shall then be acting, or to such other safe custody as the said justice or justices shall think fit,—or may (b) The 28 Vict. c. 18, s. 2, which gives the prosecution a right of reply, does not apply to these proceedings. (c) Adjudication.-The orders contemplated by this Act are, 1st, an order for a sum of money, to be levied by distress (Schedule K 1); 2nd, an order for a sum, in default imprisonment (Id. K 2); and 3rd, an order to do some act, in default of doing it imprisonment (Id. K 3). It will be seen, post, s. 29, p. 37, that the judgment may be enforced by a justice who has had no part in the hearing; care should therefore be taken to make the adjudication complete, and the mode of enforcing judgment should be considered, so that every alternative may be provided for; a term of imprisonment in default of paying a sum adjudged (or, if it is requisite that a distress warrant should issue, in default of sufficient distress) should be fixed at the time of adjudication. For the modes of "ENFORCING JUDGMENT," see post, p. 31. In some cases disobedience to a justice's order is a matter for a fresh complaint and adjudication, as where a person is ordered to contribute to the support of a child in an industrial or reformatory school, or of his wife under 31 & 32 Vict. c. 122; in such cases fresh proceedings must be taken, and an order may be made and enforced for the amount in arrears. "CONVICTION," see note (e), p. 30. 11 & 12 Vict. c. 43. THE HEARING, discharge such defendant upon his entering into a recognizance with or without surety or suretics, at the discretion 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 both of the Further hearing. parties shall not appear personally, or by his or their counsel or attorneys 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 hearing as if such party or parties were present; or if the prosecutor or complainant shall not appear, the said justice or justices may dismiss such information or complaint, with or without costs, as to such justices shall seem fit:-provided always, that in all cases where a defendant shall be discharged on recognizance as aforesaid, and shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice or justices who shall have taken the said recognizance, or any other justice or justices who may then be there present, upon certifying on the back of the recognizance the non-appearance of such accused party, may transmit such recognizance to the clerk of the peace of the county 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 sufficient primâ facie evidence of such non-appearance of the said defendant." Forfeited recognizances (d). Forms of convictions (e), and orders. Minute of order (1). 17. "In all cases of conviction where no particular form of such conviction is or shall be given by the statute creating the offence or regulating the prosecution for the same, and in 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 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 in the schedule to this Act contained as may be applicable to such case, or to the like effect;-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 be served with a copy of the minute of such order before any warrant of (d) Forfeited recognizances may be estreated at the sessions, under 3 Geo. 4, c. 46, s. 2 (Ex parte Edmonds, 23 J. P. 324). This will not terminate the proceedings before the justices; they may issue a warrant on the original charge and proceed de novo. (e) The conviction is to be drawn up in proper form and returned to the clerk of the peace (s. 14, supra), and should be carefully prepared; it should shew on the face of it everything that is requisite to give the convicting justice or justices jurisdiction, nothing can be left to inference; the offence of which the accused is convicted should be clearly set out (see Ex parte Perham, 29 L. J. M. C. 33; 5 H. & N.30; 1 L. T. N. S. 91; 23 J. P. 823); and the judgment should be so distinctly stated as to leave no doubt or ambiguity. “JOINT OFFENDERS," see note (i), p. 23, ante; "CONSECUTIVE TERMS," see note (a), p. 36, post. (f) This refers to orders only; the minute may be served personally or at the last place of abode (see form K in the schedule), and before the formal order is drawn up (Ratt v. Parkinson, 20 L. J. M. C. 208; 17 L. T. 94 ; 15 J. P. 356). commitment or of distress shall issue in that behalf, and such order or THE HEARING. minute shall not form any part of such warrant of commitment or of distress." tion, &c; 11 & 12 Vict. 18. "In all cases of summary conviction or of orders made by a justice c. 43. or justices of the peace it shall be lawful for the justice or justices making the same, in his or their discretion, to award and order in and by such Costs on convicconviction or order that the defendant shall pay to the prosecutor or complainant respectively such costs as to such justice or justices shall seem just and reasonable in that behalf;-and in cases where such justice or on dismissal (g); justices, instead of convicting or making an order as aforesaid, shall dismiss the information or complaint, it shall be lawful for him or them, in his or their discretion, in and by his or their order of dismissal to award and order that the prosecutor or complainant respectively shall pay to the defendant such costs as to such justice or justices shall seem just and reasonable, and the sums so allowed for costs shall in all cases be specified in such conviction or order or order of dismissal aforesaid,-and the same Recovery of costs. ENFORCING JUDGMENT (28 & 29 VICT. c. 127; and The different modes of enforcing judgment are:— 1st. PENALTIES AND ORDERS. ENFORCING 28 & 29 Vict. c. 127; and c. 43. (a) Where a penalty, with the costs, does not exceed £5 the defendant 11 & 12 Vict. may be imprisoned, without any distress warrant, according to the scale given in the "Small Penalties Act," 28 & 29 Vict. c. 127, infra. Penalties not This does not apply to orders. exceeding £5. (b) Where the Act upon which the proceedings are taken makes no provision for the recovery of the penalty () or sum ordered (k),— or orders distress,-a distress warrant may issue under 11 & 12 Vict. Distress warrant. c. 43, ss. 19, 20, infra. In default of distress the defendant may be imprisoned as directed by the Act (Id. s. 21); if no term is so directed, he may be imprisoned for not exc. 3 calendar months (Id. s. 22, infra). (e) Where the Act directs imprisonment in default of payment of any Imprisonment. sum, whether a penalty (i) or order, and makes no provision for a distress warrant, the defendant may be imprisoned as directed by such Act (11 & 12 Vict. c. 43, s. 23, infra). 2nd. IMPRISONMENT only being adjudged, on conviction or for disobedi- Imprisonment ence to an order A warrant of commitment may issue under 11 & 12 Vict. c. 43, s. 24, infra. (g) Withdrawal.—Sometimes justices allow the case to be withdrawn on the defendant undertaking to pay the costs or by other arrangement between the parties; but it should be borne in mind that the justices can make no order in such a case, and that the costs, if not paid, cannot be recovered before justices. (h) Sects. 24 and 26, post, pp. 35, 36, which provide for the recovery of costs on imprisonment being adjudged and on dismissal, make no mention of hard labour. (i) If the penalty, with costs, does not exceed £5, (a) will apply. (k) A minute of the order must be served before the distress warrant is issued (s. 17 and note (ƒ), supra). only. ENFORCING 3rd. COSTS:-When ordered with a penalty or order for the payment of money, costs are recoverable on the same warrant with the penalty or sum ordered (11 & 12 Vict. c. 43, s. 18, ante, p. 30); JUDGMENT. Costs. 28 & 29 Vict. Penalties Act). Penalties not exceeding £5. Hard labour. Extent of Act. When ordered where imprisonment only is adjudged (Id. s. 18, ante, p. 31, and s. 24, infra), or on dismissal (Id. s. 18, ante, p. 31, and s. 26, infra), costs are recoverable by distress, in default imprisonment not exc. 1 calendar month; Of appeal are recoverable by distress, in default imprisonment not exc. 3 calendar months (Id. s. 27, infra). Of conveyance to gaol may in many cases be added to the commitment (see 11 & 12 Vict. c. 43, ss. 21-24, 26, 27, infra); or the justice may order the constable to sell sufficient of the offender's goods to cover the amount (3 Jac. 1, c. 10, s. 1); if no goods can be found the justice may make an order for the amount upon the treasurer of the county or place-or in Middlesex upon the overseers of the parishwhere the offender was apprehended (27 Geo. 2, c. 3, s. 1). 3. "The word 'penalty' in this Act shall include any sum of money (1) recoverable in a summary manner." 4. "Where upon summary conviction any offender may be adjudged to pay a penalty not exceeding £5, 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 : For any Penalty Not exc. 108. Exc. 10s. and not exc. £1 The Imprisonment not to exceed Seven days. (m). 5. "Nothing in this Act contained shall affect the power of imposing hard labour in addition to imprisonment in cases where hard labour might, on non-payment of the penalty, have been so imposed if this Act had not passed." 6. "This Act shall apply to penalties, including costs, recoverable in a summary manner in pursuance of any Act of Parliament, whether passed before or after the commencement of this Act; and all provisions of any Act of Parliament authorizing, in the case of non-payment of a penalty not exceeding £5, a longer term of imprisonment than is provided by this Act, shall be repealed.” 7. "This Act shall not apply (n) to any penalty imposed by any Act of Parliament relating to the Inland Revenue." (1) does not apply to "orders," but only to penalties after summary conviction (see s. 4 and note (n), infra). (m) By 13 & 14 Vict. c. 21, s. 4, "month" means "calendar month." One justice may issue all process for enforcing judgment (s. 29, infra). (n) The following questions on this Act are by the late Mr. Oke of the Mansion House; the opinion on them is that of the then law officers of the crown, Sir R. Palmer and Sir R. P. Collier : 1. Whether the Act applies to cases where a shorter term of imprisonment than two months (the limit fixed by it for a penalty of £5) is provided by the particular Acts in default of a penalty of £5, i.e. whether the new Act extends a lesser period limited by earlier statutes, or whether the lesser period remains unaltered.-" We are of opinion that the power of imprisonment given by the Act for any term not exceeding two months on the non-payment of any penalty between £2 and £5 does extend to cases as to which a shorter term is c. 43. 19. "Where a conviction adjudges a pecuniary penalty or compensation ENFORCING to be paid, or where an order requires the payment of a sum of money,—— JUDGMENT. 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 11 & 12 Vict. 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 enforcing the payment of the same, is Distress warrant. stated or provided,—it shall be lawful for the justice or justices making such conviction or order, or for any justice (0) of the peace for the same county... or place, to issue his or their warrant of distress for the purpose of levying the same, which said warrant of distress shall be in writing under the hand and seal of the justice making the same;-and if after Backing warrant delivery of such warrant of distress to the constable or constables to whom (see pp. 7, 25, the same shall have been directed to be executed sufficient distress shall ante). 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 make an endorsement 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 endorsement 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 county or place :-provided always, that whenever it shall Where distress is appear to any justice of the peace to whom application shall be made for ruinous, limited by former Acts. If the last three lines of section 6 were omitted, we think that this would be clear, and although the express repeal in those lines of all provisions in any Acts 'authorizing' a longer term might appear to indicate that those imposing a shorter term are left unaltered, we do not think that this inference is sufficient (especially when the precise force of the word 'authorizing' is considered) to countervail the general operation of the rest of the Act. 2. Whether the Act, by the words in section 3, "any sum of money recoverable in a summary manner," applies to rates, wages, and expenses recoverable in that way, which are technically not adjudged upon summary "conviction," and in which, consequently, the defendant is not an "offender," as meant by the 4th section? or is the Act confined to cases where a conviction is made as distinguished from an order or other adjudication?" Taking sections 3 and 4 together, we think the Act applies only to penalties adjudged upon a conviction, as distinguished from an order to pay rates, wages, or the like." 3. Whether sect. 4 applies to cases where the penalty is restricted by the Act under which it is adjudged to a sum not exceeding £5? or to cases where the justices impose a penalty of that amount or less, without reference to the maximum penalty in such Act being above or below £5?-" Sect. 4 applies to the amount of penalty actually adjudged by the justice of the peace without reference to the maximum penalty imposed by any Act." 4. Whether the word "penalty" includes or excludes the costs incurred in its recovery (see ss. 3 and 6); as, for example, if a person is fined £5 and costs, is the case within the statute?-"Though the wording of the Act on this subject is not quite satisfactory, we think that the term penalty must be taken to mean the penal sum adjudged together with the costs; i.e. the aggregate of the penal sum and the costs.' 5. Whether sect. 4 allows the justices a discretion as to the issue of a distress warrant for the penalty where a distress is required by law?—“We think that sect. 4 does allow such discretion." (0) By s. 29 one justice may issue all process for enforcing judgment. D |