Customs (12 & 13 Vict. c. 90, s. 26), for fees on summary convictions. Vide "Oke's Magisterial Formulist,” pp. 217, 218. Highways (5 & 6 Will. 4, c. 50, s. 110), for informations, summonses, &c., and 12 & 13 Vict. c. 35, s. 1, for returns of expenditure, &c. Indictable Offences (11 & 12 Vict. c. 42, s. 27), for copies of depositions for accused. Master and Servant (20 Geo. 2, c. 19, s. 2, 31 Geo. 2, c. 11, and 4 Geo. 4, c. 34, s. 3), that the "discharge" of a servant must be given under the hand and seal of the justice gratis. Mutiny Act (annual), for attesting, &c. recruits. Poor Removal Orders (11 & 12 Vict. c. 31), for copies of depositions for parish officers. Poor Law Amendment Act (4 & 5 Will. 4, c. 76, s. 18), for copies of orders of poor law commissioners deposited with them. Swearing (19 Geo. 2, c. 21, s. 14), for the information, summons and conviction, 18. Theatres (6 & 7 Vict. c. 68, s. 6), for licence, &c. In addition to the instances before mentioned,—in which a table of fees to justices' clerks may be framed by the quarter sessions for general duties,-where that may be done under particular statutes, and where certain statutes have limited the amount of fees to be taken for particular duties, there are many other services required of the clerks by statute, for which the general table in force does not in most counties provide any remuneration whatever, viz. (ƒ): Appointing special constables (1 & 2 Will. 4, c. 41); Fixing special sessions for the highways, and precepts, &c. thereof Hearing appeals against parochial rates, precepts of special sessions, Duplicate orders in bastardy and appointment of guardians for clerk to board of guardians of union (7 & 8 Vict. c. 101, s. 5); Monthly returns of fines, &c. in summary convictions and orders Receiving and keeping documents under Public Health Act (11 & Numerous returns under the Game Laws, &c., from time to time (f) Vide note (e), ante, p. 40. Duties for which no fees are provided. Fees to borough justices' clerks. The party liable The party liable to the justices' clerk for his fees. Informer or complainant. The fees to the clerks of borough justices are made and settled by the council of the borough under 5 & 6 Will. 4, c. 76, and afterwards confirmed and allowed by the secretary of state (s. 124). The party liable to the clerks to the justices, however appointed, for the amount of their fees allowed or sanctioned for the particular business, is, except where otherwise directed by statute to the contrary, the person who made the application or instituted the proceedings in respect of which the fee is due, and the proper way is not to give any credit, but insist upon payment at the time (Wray v. Chapman (11 Feb. 1850), 19 Law J. Rep. (N. S.) M. C. 155; 14 Law T. 439; 2 Magistrate, 55; 14 J. P. 95), and refuse to do the act required until payment. In the latter case two questions were raised; the first, decided to the above effect, and that constables and other public functionaries, who, in the discharge of their duties, have occasion to resort to magistrates, cannot require summonses, warrants and other proceedings to be granted upon their application without the payment of the usual and proper fees to the magistrate's clerk (g);- and the second question decided was, that the clerks to the justices acting for a part of the metropolitan police district, for which no police court had been established, were not entitled to retain the fees payable for summonses, &c., applied for by police constables acting under the directions of the commissioners of police, as against the Receiver for the district, out of the fines payable to him under the Metropolitan Police Acts, and that they had no remedy of any kind against the Receiver. The party applying,-whether as informer suing for a penalty, as complainant for wages or damage to property, as prosecutor for an indictable offence, as defendant to an information or complaint, or as a public officer,-must consequently in all cases be liable to the payment of the justices' clerk's fees in respect of the proceedings which they respectively institute, and for these additional reasons; as informer or complainant, where the defendant is adjudged to pay the costs of the conviction or order, whether it be recovered from his defendant or not, for the same is legally payable by the conviction or order to no one but the informer or complainant; or where the information or complaint (g) The fees for proceedings at the instance of borough police constables are, under 5 & 6 Will. 4, c. 76, s. 92, payable out of the borough fund (R. v. Gloucester, 13 Law J. (Q. B.) 233). indictable offences. is dimissed; as prosecutor of an indictable offence, for in all Prosecutor in felonies, and in certain specified misdemeanors (7 Geo. 4, c. 64, ss. 22, 23; 14 & 15 Vict. c. 55, ss. 1,3), the amount is repaid him by an order of the court where the offender is tried; but if no committal for trial takes place, or no costs are allowed by the county for the prosecution, the prosecutor's liability cannot be altered;-as defendant for an information or complaint for a Defendant. summary or an indictable offence, where he obtains summonses for witnesses, or has witnesses examined on his behalf, and the charge is dismissed or not; for, if for a summary conviction or order, and the complaint be dismissed with costs to be paid by the informer or complainant, the costs, including the clerk's fees, are legally payable to no one else but the defendant, and in all indictable offences the defendant must bear his own costs in defending the charge, they not being repaid him from any source;—and as public officer, such as overseer of the poor, or Public officer. surveyor of the highways, where they apply for the magistrates' allowance of rates, or for recovering rates from defaulters, their appointments, and the appointments of constables, the same being allowed in their accounts (5 & 6 Vict. c. 109, s. 17);— or as constables in prosecuting vagrants, or exercising other Constables. duties, the same being allowed them by the parish (R. v. Chelmsford, 12 Law J. Rep. (N. S.) M. C. 139; 5 Ad. & E. (N. S.) 66; 3 Gale & D. 357; 7 J. P. 432, 447; Wray v. Chapman, supra). The liability of the party to pay the fees being now esta- The remedy for blished, it is clear that justices' clerks may enforce the payment, fees. recovering the when necessary, by the ordinary methods (per Erle, J., in Wray v. Chapman, supra); the method applicable being by summons from the county court (h) of the district where the defendant resides, or wherein the cause of action (the work done for which the fees are due) arose (9 & 10 Vict. c. 95, s. 60, and see 13 & 14 Vict. c. 61, s. 1), the justices having no power to enforce the payment from the party liable to the justices' clerk, or to order that the clerk shall not receive his usual fees. (h) Two more recent cases have been heard in the county courts, and judg ment given for the amount of the clerks' fees; one in the county court at Winchester, against an informer, where the defendant to the information suffered the imprisonment adjudged by the convicting magistrates without paying penalty or costs (Drew v. Harris, 14 J. P. 26; 3 County Court Chron. 70); and the other in the county court at Coventry, against overseers of the poor for fees for appointing special sessions for hearing appeals against parochial rates under 6 & 7 Will. 4, c. 96, as allowed in the table of fees, this judgment being opposed to the opinion of the poor law board. (Wilmot v. The Overseers of Foleshill, 14 J. P. 403; 2 Magistrate, 100.) PART I. AS TO SUMMARY CONVICTIONS AND orders. CHAPTER I. THE LAW AND PRACTICE OF PROCEDURE IN GENERAL. Preliminary observations. THE law and practice of procedure before justices of the peace out of quarter sessions, with respect to summary convictions and orders (a), are regulated principally by Sir John Jervis's Act (11 & 12 Vict. c. 43), which came into operation on the 2nd of October, 1848, and otherwise by provisions in the acts of parliament giving cognizance of the offence or matter (b). The preamble of the statute 11 & 12 Vict. c. 43, which has effected great alteration and improvements upon the old practice, recites that "it would conduce much to the improvement "of the administration of justice within England and Wales, "so far as respects summary convictions and orders to be "made by her majesty's justices of the peace therein, if the "several statutes and parts of statutes relating to the duties of (a) The practical distinction between a conviction and an order is this:the former is the record of an affirmative adjudication upon an information for an offence or act punishable either by a penalty or imprisonment; the latter is (now) also the record of a like determination upon a complaint for non-payment of a sum of money, or for the doing of some other thing. (b) By section 36 the following statutes and parts of statutes were repealed from the 2nd day of October, 1848, viz.—whole statutes, 3 Geo. 4, c. 23, and 5 Geo. 4, c. 18; so much of statutes 18 Eliz. c. 5, s. 1, as relates to exhibiting an information, and pursuing the same in person, and not by an attorney or deputy; 31 Eliz. c. 5, s. 5, as relates to the time limited for exhibiting an information for a forfeiture upon any penal statute; 27 Geo. 2, c. 20, ss. 1, 2, as relates to distresses by warrants; 18 Geo. 3, c. 19, ss. 1, 2, 3, 5, as relates to costs on complaints before justices; 33 Geo. 3, c. 55, s. 3, as relates to the execution of distress warrants; 6 & 7 Will. 4, c. 114, s. 2, as relates to the right of persons accused, in cases of summary convictions, to make their defence and to have all witnesses examined and cross examined by counsel or attorney; and all other act or acts or parts of acts which are inconsistent with the provi sions of the said act, save and except so much of the said several acts as repeal any other act or parts of acts, and also except as to proceedings now pending to which the same or any of them are applicable. "such justices, in respect of such summary convictions and majesty's justices of the peace for any county, riding, divi"sion, liberty, city, borough or place within England or Wales, "that any person has committed, or is suspected to have com"mitted, any offence or act within the jurisdiction of such "justice or justices for which he is liable by law, upon a sum66 mary conviction for the same before a justice or justices of "the peace, to be imprisoned or fined, or otherwise punished;" and also to "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" (sect. 1); and which section, after providing for the issue of the summons to the defendant and its service in such cases, contains a proviso that nothing in the statute "shall oblige any justice or justices of the peace to "issue any summons in any case where the application for any "order of justices is by law to be made ex parte” (c); but the Exception 35th section excludes from its operation several matters: it clause. enacts, that nothing in this act shall extend or be construed 66 "to extend To any warrant or order for the removal of any poor person, who Nor to any complaints or orders made with respect to lunatics, or (c) The orders here referred to are the following:-orders of removal of paupers and lunatics (excepted, however, from the operation of the act by sect. 35, supra); on overseers for constables and justices' clerks' fees (5 & 6 Vict. c. 109, s. 17); on county treasurer (27 Geo. 2, c. 3, s. 1; 1 & 2 Will. 4, c. 41, s. 13; 11 & 12 Vict. c. 42, ss. 22, 26; 10 & 11 Vict. c. 82, s. 15); on railway company (1 & 2 Vict. c. 80). (d) The statutes excepted by this are: 4 & 5 Will. 4, c. 76; 8 & 9 Vict. c. 117; 9 & 10 Vict. c. 66; 10 & 11 Vict. c. 33; 11 & 12 Vict. c. 31; 11 & 12 Vict. c. 111; 12 Vict. c. 13; and 12 & 13 Vict. c. 103; having reference to the subjects in Part III. of the present work. (e) The statutes on this subject are:-8 & 9 Vict. cc. 100, 126; and 9 & 10 Vict. c. 84; 1 & 2 Vict. c. 14; and 3 & 4 Vict. c. 54; having reference also to subjects in Part III. of this work; also 12 & 13 Vict. c. 103. |