of natural justice, that the accused should have an opportunity of being heard before he is condemned (b). So jealous is the law to enforce this- equitable rule, that the neglect of it by a justice in proceeding summarily, without a previous summons to the party, has been treated as a misdemeanor proper for the interference of the Court of Q. B. by information (c).

J.P. bound to issue one.] Upon an information or complaint properly laid, and where there is no reasonable doubt of their jurisdiction, the magistrates are bound to issue a summons or warrant, and proceed to a hearing; if they refuse to do so, they may be compelled by rule or mandamus (d).

In all cases

Warrant may be issued if summons not obeyed.] of offences where the person does not appear at the required time and place, and it is proved on oath either that he was personally served with the summons, or that he is keeping out of the way of service, the justice may issue a warrant to arrest and bring such person before him or some other justice to answer the complaint, provided that the complaint was made in writing and on oath (e).

Compelling attendance of witness by summons.] Magistrates have the power to compel the attendance of parties and witnesses by summons, for the purpose of a summary trial. The mode of thus procuring their attendance, and the penalty for neglect of appearance, has been before referred to (ƒ).

Taylor v. Clemson, 11 Cl. & Fin. 650.

(b) R. v. Simpson, 10 Mod. 379; R. v. Dyer, 1 Salk. 181; R. v. Green, Cald. 391; Becquet v. Macarthy, 2 B. & Ad. 951; see re Hammersmith, Rent Charge, 4 Exch. 87; Bartlett v. Kirkwood, 2 El. & Bl. 771; R. v. Js. of Staffordshire, 5 N. & M. 94; Painter v. Liverpool Gas Co., 3 Ad. & El. 433; Kinning v. Buchanan, 8 C. B. 271, 10 Q. B. 730; Hammond v. Bendyshe, 13 id. 869; ex parte Ramshay, 21 L. J. (N.S.) Q.B. 238. Skingly v. Surridge, 11 M. & W.503; R. v. Överseers of Warbblington, 22 L. T. 304; R. v. Guardians of Totness Union, 7 Q. B. 690; ex parte Story, 12 C. B. 767.

(c) R. v. Venables, 2 Ld. Ray.

1407; R. v. Simpson, 1 Str. 46; R. Allington, 1 Str. 678; R. v. Harwood, 2 Str. 1088; 3 Burr, 1716; R. v. Constable, 7 D. & R. 663. A summons may, however, be dispensed with by statute; see Culverson v. Melton, 12 A. & E. 753.

(d) R. v. Benn, 6 T. R. 198; 12 Vic. c. 16, s. 5; see Paley on Conv. 69.

(e) 14 & 15 Vic. c. 93, s. 11. Where any person is charged with any offence punishable on summary conviction under the Larceny Act, 24 & 25 Vic. c. 96, the J. P. may, if he shall so think fit, without any previous summons (unless where otherwise specially directed) issue his

warrant.

(f) Vide ante, p. 73.

Form of summons.] Every summons is to be prepared by the petty sessions clerk (g), and signed by the justice who issues it; it is not to be signed in blank (h), and should bear the stamp required by 21 and 22 Vic. c. 100, but need not be sealed. It must state shortly the cause of complaint (i), that is, contain the substance of the charge. This should be carefully attended to, as the form of conviction provided by the statute directs the cause of complaint to be set forth in the conviction as it appears in the summons. It should fix a day and place for the party's appearance, giving him a sufficient time for his attendance, and that of his witnesses (j). The summons requires the party to appear before the justice who shall be at the place of hearing, and it is not necessary that he should appear before the magistrate who issues the summons (k).

Service of summons under Petty Sessions Act.] The Petty Sessions Act provides that every summons is to be served upon the person to whom it is directed, by delivering to him a copy, or if the party cannot be conveniently had, by leaving the copy at his last or most usual place of abode, or at his office, warehouse, counting-house, shop, factory, or place of business, with some inmate of the house not being under sixteen years of age; and this service is to be deemed sufficient service in every case where special service is not required by that act (7).

In other cases.] In cases not within the 14 & 15 Vic. c. 93, the service of the summons should be personal, unless specially dispensed with (m). Where any particular statute prescribes the mode of service, or of the substitution of service, in case of necessity that direction should be followed. For instance, it is provided (n) that a summons issued for the attendance of any guard or driver of any public stage-carriage may be served on the known or acting book-keeper of the parcel-office of such

(g) 14 & 15 Vic. c. 93, s. 5. (h) Ib., s. 11.

(i) Ib.

(j) 14 & 15 Vic. c. 93, s. 11; R. v. Mallison, 2 Burr. 681; R. v. Johnson 1 Str. 261; R. v. Simpson, 1 Str. 44. If the party appear at the time, and the justice shall not attend, he is not to go away, but must wait until the adjournment of the court; see 21 &

22 Vic. c. 100, s. 8, cl. 5; for many
things may happen to hinder the jus-
tice's immediate attendance; 1 Burn's
J., 29 ed. 978.

(k) 14 & 15 Vic. c. 93, s. 11.
(7) 14 & 15 Vic. c. 93, s. 12.

(m) R. v. Hall, 6 D. & R. 14; R. v. Simpson, 12 Mod. 345; Mason v. Barker, 1 Car. & Kir. 107.

(n) 14 & 15 Vic. c. 92, s. 14.

carriage; also in proceedings for the recovery of small tenements, in case the overholding party cannot be served in the usual way, then the posting of the summons on some conspicuous part of the premises is to be deemed good service (o). There are no additional directions to be given as to the service of summonses in game cases, the rules and principles before mentioned being equally applicable to this branch of the law. By 4 & 5 Wm. IV. c. 51, s. 19 (Excise), it is provided that a notice in writing of the information having been exhibited shall be given to the person against whom the same shall have been exhibited, within one week next after the exhibiting of such information; and the justice or justices of the peace, before whom such information shall be exhibited, are respectively to summon such person to appear and attend the hearing of such information, at a time and place to be named in such summons, which summons shall be served upon every person ten days at the least before the time appointed in such summons, and which summons may be added to or may include the notice, and be served at another and different time, subsequent to the delivery of such notice, at the option of the prosecutor; and in all cases it shall be deemed and taken to be sufficient delivery and service of any such notice and summons, if a copy of the same be left at or upon the place used or occupied by any such person or persons respectively for carrying on his or their trade or business, or at the place where any such offence shall have been committed, or at the place of residence, or with the wife, or child, or servant of any such person, the same being directed to such person by his right or assumed name; or where any such offence shall have been committed or discovered in transit, and the place of business or residence of the offender shall be unknown to the person discovering such offence, it shall be sufficient if such notice and summons, or a copy thereof, be affixed at or upon some conspicuous part of the office of excise next to where such offence shall have been committed or discovered, directed to such offender by his right or assumed name, if the same shall be known, and if not known, without any name (p).

(0) Ib. s. 15.

is in prison, vide 7 & 8 Geo. IV. c.

(p) If the party informed against 53, s. 77.

By whom summons to be served.] If the offence is prosecuted by the constabulary, the summons is to be served by a head or other constable (q). In all other cases, it is to be served by the summons-server of the district, unless the justice signing the summons directs or permits it to be served by some person employed by the complainant, who must be able to read and write (r). In no case can the complainant serve the process himself (s).

Employment of summons-servers.] The justices of each petty sessions district appoint a summons-server who is able to read and write; he holds his office during the pleasure of the justices, and is entitled to be paid by the complainant a sum not exceeding sixpence for service of each summons (t). The server is to endorse on the summons the time and place where it was served, and must attend at the place of hearing, to depose, if necessary, to the service (u). If the process-server should happen to lose the original so endorsed, the service should be proved by swearing to the loss of the original, notwithstanding a careful search, and by proving by witnesses the contents of the copy served.

Service, when to be made.] The service, where no time is limited by the particular statute, should be made a reasonable time before the period appointed therein for appearance (v). The justices are the proper judges of what is a reasonable time (w) and the court will not interfere with their decision, unless it clearly appears that there was no service (x), or that the defendant was not allowed the proper time to appear (y), or that the justices have mistaken the law as to the kind of service required, and have, therefore, declined to entertain the matter (2). But if

(q) 14 & 15 Vic. c. 93, s. 12. (r) Ib.

(8) Ib. In excise proceedings any officer or other person may serve the summons, 4 Vic. c. 20, s. 31.

(t) 14 & 15 Vic. c. 93, s. 12. (u) Ib.

(v) Ib.

(w) In re Williams, 2 Prac. Rep. 580; 21 L. J. 46 M. C. exparte Hop

wood, 15 Q.B. 121; Zohrab v. Smith, 5 D. & L. 635; Robinson v. Lenaghan, id. 713; 2 Exch. 333, S.C.; ex parte Davies, 17 Jur. 577.

(x) Ex parte Rice Jones, 1 L. M. & P. 357; R. v. Totness, 7 Q.B. 690. (y) Mitchell v. Foster, 12 A. & E. 472.

(2) R. v. Goodrich, 19 L. J. Q. B.

413.

the defendant appears, there is no longer any question as to the sufficiency or regularity of the summons (a).

No objection to form of summons.] No objection shall be allowed in any proceedings to any summons for any alleged defect in it, or any variance between it and the evidence at the hearing of the case in summary proceedings; but if it should appear to the justice that the defendant has been deceived or misled by the form of the summons, he may adjourn the case to a future day (b).

Subpoena from Crown Office.] It has always been the practice, as far as can be ascertained (c), in criminal prosecutions, to issue subpoenas from the Crown Office to testify and produce in all inferior courts, viz., before justices at sessions of the peace, as well upon appeals as in prosecutions, and also before magistrates at petty sessions and before individual justices of the peace. As magistrates have no authority to summon witnesses to attend before them, who are not resident in the county in which they have jurisdiction (d), subpoenas may be issued from the Crown Office to compel appearance (e). By the 45 Geo. III. c. 92, s. 3, the service of a subpoena upon a witness in any part of the United Kingdom for his appearance on a criminal prosecution in any other part, shall be as effectual as if it had been in that part where he is required to appear. An attachment will be granted against a person refusing to obey a subpoena, or subpœna duces tecum, issued from the Crown Office, requiring the witness to attend before any inferior tribunal, without reference to the question whether he is bound to be examined, or to submit the document when produced for examination (ƒ).

Withdrawing the summons.] Once a party has a summons served on the defendant in a criminal case, he cannot withdraw it, so as to prevent the opposite party having a right to force it

(a) R. v. Stone, 1 East 639; R. v. Johnson, 1 Str. 261; Taylor v. Clemson, 11 Cl. & Fin. 610, 642; R. v. Preston, 12 Q. B. 825; ex parte Rice Jones, 1 L. M. & P. 357; R. v. Ward, 3 Cox, C. C. 279; R. v. Clarke, 6 Q. B. 349; Doyle App. Morris Resp. 6 Ir. J. N. S. 60.

(b) 14 & 15 Vic. c. 93, s. 39.

(c) See Corner's C. P. 256.

(d) See ante, p. 73.

(e) See Corner's C. P. 256, 257; for forms of subpoena and attachment see id. Also on this subject, 1 Hayes, C. L. 239; Roscoe's C. Ev. 110, 4th ed.

(f) R. v. Greenaway, & R. v. Carey, 7 Q. B. 126.