the said C. D., and him safely convey to the [house of correction] at 5. Nonappearance of either or both Parties at adjourned Hearing. It will be seen, ante, p. 78, that by sect. 13 of the 11 & 12 Vict. c. 43, where the defendant appears at the adjourned hearing, but the prosecutor or complainant does not, the information or complaint may be dismissed with costs, or the hearing adjourned. By s. 16, if at the time or place to which such hearing or Proceed to further hearing shall be so adjourned (h), either or both of the hearing; parties shall not appear personally, or by his or their counsel or attornies 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 (i), as if such party or parties were present; or if the prosecutor or complainant shall not ap- or if complainpear, the said justice or justices may dismiss such information ant do not or complaint, with or without costs (k), as to such justices shall attend, dismiss. seem fit. 6. Appearance of all Parties. If both parties appear, either personally or by their respec- 11 & 12 Vict. tive counsel or attornies (1), before the justice or justices who c. 43. (h) See ante, p. 77, for causes of adjournment. (i) See proceedings at hearing, post. (k) See ante, p. 80, how costs recovered, and the forms to be used. (1) The appearance of both or either party, it appears, may be by attorney only, and is sufficient to warrant the justices in proceeding to the bearing; but if they require the defendant's personal appearance, it is imagined they may issue a warrant to enforce it. An appearance may be voluntary; and if the defendant be present during the bearing of the information, and have a full opportunity of being heard, and do not require time, he may be convicted without a previous 11 & 12 Vict. c. 43. Compromising case. Appearance waives any irregularity in service of sum mons. No objection to forms. are to hear and determine the complaint or information, then the said justice or justices shall proceed to hear and determine the same (s. 13). At this stage of the proceedings the good offices of justices may be properly exerted in many cases, in inducing parties to compromise their differences; and if it should be deemed inexpedient to make the attempt at reconciliation, or if the attempt should prove unsuccesful, the matter then proceeds in the ordinary way; but the justices may safely endeavour to bring about a compromise (R. v. Crisp, 1 B. & Ald. 232). In summary convictions under the Larceny and Malicious Injuries Acts, the justices are empowered to arrange a compromise after a couviction (7 & 8 Geo. 4, c. 29, s. 68; c. 30, s. 34); and in all such cases the costs should be paid immediately, as they cannot be enforced by the justices unless a conviction or order of dismissal be made. The defendant's appearance, whether by himself or counsel or attorney, waives all irregularity in the service of the summons or the want of one (R. v. Johnson, 1 Str. 261; R. v. Stone, 1 East, 649; R. v. Aiken, 3 Burr. 1785; 1 Arch. J. P. 363), at least as far as respects ulterior proceedings; and even the noncompliance with a statutable form (R. v. Kingsby, 15 J. P. 65); but now see sect. 1 of 11 & 12 Vict. c. 43, as to defects in a summons in general under that act. Before whom and where the hearing must take place has been noticed at pp. 75, 76, and that either party may have the assistance of counsel or attorney. It will be seen, ante, p. 53, that no objection shall be taken or allowed to any information, complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint or summons, and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as herein mentioned; but if any such variance shall appear to the be adjourned. justice or justices present and acting at such hearing to be such that the party so summoned and appearing 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 ad If variances misled, case to summons (R. v. Aiken, 3 Burr. 1785); but if he be brought before the justice without summons or wariant, and such arrest be illegal, as not being authorized by the particular act, or by the common law, the justices cannot adjudicate, the defendant not being properly before them (15 J. P. 665). c. 43. journment and journ the hearing of the case to some future day (s. 1) (m). 11 & 12 Vict. A similar provision in contained in s. 3, as to objections, &c. to warrants of apprehension; but as to informations, see s. 9, p. Variances on in53, as to variances with regard to the time and place of offence. formations only. If the latter variances, or any variance in any other respect If misled debetween such information and the evidence adduced in support fendant, adthereof, shall appear to the justice or justices present and act- bail. ing 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 the hearing of the case to some future day [s. 9]; the defendant is then committed or bailed, as ante, p. 67. ings. to prove a ne The objections will in future apply only to the conviction or Objections will order, and the subsequent proceedings for enforcing them, but be to subsequent proceednot to any of the initiatory processes. Sect. 14 contains a proviso, that if the information or com- Not necessary plaint in any such case shall negative any exemption, excep- gative. tion, 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. The substance of the information or complaint shall be stated Information or to him, and he shall be asked if he have any cause to show complaint read. why he should not be convicted, or why an order should not be made against him, as the case may be (n), and if he thereupon admit the truth of such information or complaint, and If confession, justices to conshow no cause or no sufficient cause why he should not be vict or make convicted, or why an order should not be made against him, as order. the case may be, then the justice or justices present at the said hearing shall convict him or make an order against him accordingly (see also R. v. Gage, 1 St. 546; 1 Saund. 262, n. 1; R. v. Hall, 1 T. R. 320; Mann v. Danvers, 3 B. & A. 103); but if he do not admit the truth of such information or complaint as aforesaid, then the said justice or justices shall pro (m) See ante, p. 78, bail on adjournments. (n) It might be you are charged in this information [or complaint'] with having [&c. stating the substance shortly]: Have you any cause to show why you should not be convicted of this offence?" or "Have you any cause to show why an order should not be made against you for payment of that sum [or 'to do this act'] ?" but the more simple way seems to be, to ask him whether he is guilty or not guilty. c. 43. 11 & 12 Vict. ceed to hear (o) 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 prosecutor or complainant may examine in reply, if such defendant shall have examined any witnesses or given any evidence other than as to his the defendant's general character; but the prosecutor or complainant 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 observations in reply upon the evidence given by the prosecutor or complainant in No information reply as aforesaid (s. 14) (p). If the offender be legally apprenecessary upon hended in the commission of the offence, without warrant, and offender brought before justice at brought before the justices, and the statute does not require an information in writing to be laid, a verbal one will then be sufficient to warrant the justices in hearing and determining the case in the usual way; the only object for taking an information is to ground the justices' authority to summon a defendant, which is consequently dispensed with by such his appearance. If the information or complaint should be dismissed for want of form, it will not prevent a fresh one being preferred (15 J. P. 123; R. v. Ridgway, 1 D. & R. 38); but if the dismissal be on the merits, and the certificate, ante, p. 79, be obtained and produced, the plea of autrefoits acquit will be available in like manner as in indictments (R. v. Newbury, 15 J. P. 321). once. Authority to administer oath. Competency of witnesses. Complainants, informers and defendants. By s. 15, 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 (see also 14 & 15 Vict. c. 99, s. 16). It will be seen by the Introduction (ante, p. 37) that the effect of the Evidence Act, 14 & 15 Vict. c. 99, is to render com (0) The same strictness and regularity should be pursued in examining and taking down the evidence of the various witnesses as are resorted to in the superior courts, although it is not now necessary to set out the evidence in the conviction or order in the matters which are within the operation of the 11 & 12 Vict. c. 43. (p) This is different from the prevailing practice on a trial at Nisi Prius. There can now be no reply upon evidence, nor a general reply, the observations being confined to the opening statement of the complainant, and the statement of the defendant in his defence. petent complainants and informers in all cases, and defendants in complaints, but not in informations. Independently of that act (which, with the 6 & 7 Vict. c. 85, removes that doubt), the law is that where several offenders are charged and the cases Co-defendants. heard at one time, after all the evidence on both sides has been heard, if there be no evidence against one of them, he is then entitled to demand an acquittal (Wright v. Palin, R. & M. C. C. 128); but he is not entitled to a verdict in the midst of the inquiry (Emmett v. Butler, 7 Taunt. 599), although the court may in its discretion allow of its acquittal in any state of the trial before the reply, in order that he may be examined as a witness (Bedder's case, 1 Sid. 237; 2 Hawk. P. C. c. 46, s. 98, p. 604, 8th ed.). When acquitted he is competent (Frazer's case, 1 M. & Nal. Ev. 56; see R. v. Fletcher, 1 Str. 638; Sherman's case, Cases temp. Hardw. 303; R. v. George, Car. & M. 111); also, where one of several defendants pleads guilty he may be called as a witness for the other defendants before sentence, unless he has an interest, as in conspiracy, &c., in obtaining their discharge (R. v. George, id.; see Taylor on Evid. p. 817; Phil. Evid. 70, 8th ed.; p. 68, 9th ed.) It is, it is conceived, in the justices' discretion whether or not they dismiss the charge as against one defendant at the end of the complainant's case, or when they have heard the defence (11 J. P. 271). husband and By the general rule of law, previous to the 14 & 15 Vict. Evidence of c. 99, a husband and wife could not be witnesses for or against w.fe. each other, and the effect of that act on magistrates' proceedings is pointed out at p. 34; but they may be witnesses against each other in respect of any charge which affects their liberty and person (per Hullock, R. v. Wakefield, 2 Russ. 605). It is the ordinary practice of petty sessions to receive the wife's evidence on charges against the husband under the Vagrant. Act, for neglecting to maintain her, it being difficult, and in some cases impossible, to substantiate the charge either as to his ability or neglect, if her testimony were excluded (Stone's Manual, 5th ed. p. 106); and, according to 16 J. P. 60, this practice may still be adhered to, notwithstanding the 14 & 15 Vict. c. 99, it not being affected by it. The husband or wife of one prisoner cannot be called as a witness for other prisoners prosecuted with him or her for the same offence, it having been held that where a husband was indicted with others for a conspiracy, the wife could not be examined as a witness for the |