CEEDINGS, &c. CHAP. IV. of the injury, or of the poverty or station of the complainant, SUMMARY PRO- or wrong-doer, it is desirable to avoid formal expensive litigation, and to seek redress by economical and expeditious summary remedy. We have seen the risk attending proceedings by action in the Superior Courts, for small injuries, in respect of costs, especially for assaults, slanders, and small transient trespasses to land or other property; and that unless there be a permanent and valuable right to be tried, and the opponent is certainly able to pay costs, it is most prudent to forbear to proceed at all; or at least most advisable to adopt some summary proceeding, and that perhaps rather with a view to prevent repetition of the injury, than to recover actual or supposed compensation. The Legislature has considered that it is better to provide some summary, speedy and cheap compensation or punishment, than by denying redress, or rendering it so expensive as to be beyond the means of adoption, to induce men to revenge themselves; (a) and therefore, especially of late, has introduced several very useful enactments, extending to almost every description of small private injury, and forming a new class of jurisdiction delegated to Justices, and of which we will now take a concise practical view. of Justices of of Sessions. Original limit- Anciently the functions and jurisdiction of one or more ted jurisdiction Justices of the Peace, when not assembled at general or quarter the Peace out sessions, were almost entirely ministerial, viz., to preserve and prevent breaches of the peace, and to cause malefactors to be apprehended, and their appearance secured, to take their trial for alleged offences before a higher tribunal, either at the assizes or sessions; and the principal exceptions were Forcible Entries and Detainers; with respect to which, we shall find that by ancient statutes, one or two justices, though not at Quarter Sessions, had summary judicial powers. In more modern times the increase of population, and still more the increase of legislation, has rendered it essential to delegate jurisdiction over small matters of police to Justices; and in numerous cases, whether for prevention or punishment of breaches of some police regulations, small offenders were subjected to pecuniary penalties, and to imprisonment for a short time if they did not pay them; frequently one Justice, and in cases of more importance, two Justices had power to decide summarily, subject sometimes to an appeal to sessions, but very frequently final without any appeal, and even without the power of the superior Court of King's (a) See the observations of Treby, Ch. J. cited by Parker, C. J. Har rison v. Thornborough, Gilb. Cas. L. & E. 117; and ante, 1 Vol. 23, note (d). Bench, to review their formal proceedings upon certiorari. A most familiar instance was the proceedings under the now repealed act, 5 Ann, c. 14, for a 57. penalty for killing game without being qualified, where one justice could convict, and there was no appeal, though the writ of certiorari was not taken away. CHAP. IV. SUMMARY PRO CEEDINGS, &c. extended to cases of con The small expense incident to this and similar proceedings, Jurisdiction before one or more Justices, in still more recent times, at length induced the Legislature to extend this summary jurisdiction, tract. even to cases apparently wholly foreign to the object of the original institution of Justices of the Peace; viz., enabling them to decide upon questions of contract between masters and servants, when the latter were labourers working for wages, or servants in certain trades. (b) ty. The next step was to afford compensation, by the decision Extended to of a Justice, for verbal abuse, by stage-coachmen to passen- injuries to persmall private gers. (c) But there were no regulations affording general com- sons or properpensation or punishment før small private injuries, until the three principal statutes were recently passed, viz., the 7 & 8 Geo. 4, c. 29, relative to small illegal takings of property, whether strictly personal or in part connected with the freehold, not exceeding 57. in value; the 7 & 8 Geo. 4, c. 30, relative to small wilful or malicious injuries to personal or real property, whether private or public, not exceeding 57.; and the 9 Geo. 4, c. 31, relative to common assaults and batteries, not causing injury exceeding 5l. The former two acts enabling one Justice summarily to hear and determine the complaint of the party aggrieved, and award him compensation to the extent of 51. unless when he has given evidence, and then to be paid in aid of the county rate; and the latter act requiring two Justices to hear and determine, and convict in not exceeding 57., to be paid in aid of the county rate. the recent en These statutes were enacted with a view to prevent expensive The object of actions in the superior Courts for trifling assaults and trespasses, actments. which could not be proceeded for in the County Court even by justicies, that Court not having jurisdiction over trespasses vi et armis; (d) and it is perhaps to be regretted that general cases of slander have not also been provided for. (e) If these statutes be judiciously acted upon, they will render it unnecessary to resort to expensive actions in the superior Courts, when the value of the matter in dispute cannot justify these measures; and as regards (b) 4 Geo. 4, c. 34; 10 Geo. 4, c. 52; 5 Geo. 4, c. 96; Burn's Jus. tit. Ser vants. VOL. II. (c) 2 & 3 W. 4. c. 120, s. 47, 99. K CHAP. IV. CEEDINGS, &c. the proceedings before two Justices for common assaults and SUMMARY PRO- batteries, they have rendered unnecessary indictments at the sessions or assizes, unless in cases of assaults with intent to commit a felony, or of an aggravated nature. (f) But still it must be observed that the limited penalty of 57. is to be paid only in aid of the county rate; so that the proceeding before two Justices for an assault and battery can in strictness only be for punishment, and not directly for private compensation, for the act does not give the two Justices any direct authority to award compensation, although in case of injuries to personal or real property, one Justice, it will be observed, has that power. It should seem, however, that independently of these statutes, the party charged might at any time before conviction, or at least before the hearing, legally compromise with the party aggrieved, and thereby avoid payment of any fine or penalty; and thus the proceeding might operate in all cases as a private satisfaction. Former and present rules of constructions, as regards sum mary proceed ings. As in all or most of the cases where a penalty or fine is to be paid, the party is subject to imprisonment in default of payment, an absurd rule of construction for some time prevailed, as regarded all these summary proceedings, viz. that the proceeding leading to imprisonment without a previous trial by jury was an unconstitutional proceeding, and contrary to Magna Charta; (g) and that therefore a tight hand ought to be held over these summary convictions, and more strictness required in the forms of proceedings and the jurisdiction, and a due exercise of it manifestly appear, and that no intendment in favour of them should be admitted; and that the superior Courts ought to be astute in discovering defects in convictions before summary jurisdictions; and it was even supposed that a different and more rigid rule of averment and evidence in support of summary proceedings should be required than in an action. (h) But these absurdities, the indulgence of which might induce a suspicion that the superior Courts were formerly jealous of those inferior jurisdictions, have for some time been abandoned; and now the doctrine is that whether it was expedient that those jurisdictions should have been erected, was a matter for the consideration of the Legislature; but that as long as they exist, the Courts ought to go (f) See exceptions, 9 Geo. 4, c. 31, s. 29; Anon. 1 B. & Adolph. 382. (g) See Lord Holt's observations in Queen v. Wheller, and notes, 2 Lord Raym. 842; and Rex v. Chandler, 2 Salk. 378; and 9 Hen. 3. c. 29; and the notes in Chitty's Col. Stat. 340; but note, the words of that act are, that no man shall be imprisoned, &c. "but by "lawful judgment of his peers, or by "the law of the land;" consequently an imprisonment by virtue of any legislative enactment, is by the law of the land. (h) Id. ibid.; and see Rer v. Thompson, 2 T. R. 18; Rex v. Swallow, 8 T. R. 284; Rex v. Stone, 1 East, 639; Rex v. Turner, 5 Maule & S. 206. SUMMARY PRO all reasonable lengths to support the decisions of Justices, espe- CHAP. IV. cially as in whatever light they were formerly seen, the country CEEDINGS, &c. are now convinced that in general they derive considerable advantage from the exercise of the powers delegated to justices, and therefore in modern times they have received proper support from the Courts of Law; (i) and for the same reason the Courts hold, that although in drawing up convictions magistrates cannot set all forms at nought; yet on the other hand they ought not to be entangled in greater forms or ceremonies than the superior Courts; (j) and in one of the latest decisions upon the subject it was established that the same, and not a stricter rule of evidence is to be observed before justices, as in the superior Courts; (k) and in a very recent case it appears that when a conviction on the face of it assumes facts so as to bring the case within the jurisdiction of the justice, the Court will not, on a motion for a certiorari, and which is taken away by the act, give effect to affidavits denying the facts and showing that the justices ought not to have convicted; because the Legislature, by giving the magistrates power to decide, concluded that they would decide to the best of their discretion. () But although a conviction falsely assuming facts may in itself be sustainable and enforceable as well directly as collaterally, so as to subject the party convicted to the payment of the penalty, and preclude him from sustaining any action against the magistrate or other person acting under it; (m) yet if a magistrate were wilfully and criminally to mistake or assume facts in order to give himself jurisdiction and convict, he might, by mandamus, in certain cases where the statute requires that the conviction shall state the evidence, be compelled to reform his conviction by setting forth the evidence according to the facts, (n) or he would be liable to indictment or criminal information, or at least would be subjected to the animadversion of the Court and the payment of costs of the motion against him, (o) and would probably be justly removed from his office. It is to be regretted, that considering the very numerous General preenactments for the recovery of penalties before justices, and the cautions to be extensive operation of the recent enactments, affording compen- adopting sum (i) Per Ashhurst, J. in Rex v. Thompson, 2T. R. 18. (j) Per Lord Kenyon, in Rex v. Swaltow, 8 T. R. 284. (k) Rex v. Turner, 5 Maule & Selw. 206. (1) Anonymous, 1 B. & Adolph. 382. 1 Brod. & B. 432; and Gray v. Cookson, (n) In re Rex, 4 Dowl. & R. 352; (u) Rex v. Barker, 1 East Rep. 186; see a gross case of neglect of duty, Rex v. Constable, 7 Dowl. & R. 663. observed, in mary proceedings before Justices. CHAP. IV. SUMMARY PRO CEEDINGS, &c. First, Sum sation or punishment for private injuries, there is not (excepting in the act enabling one justice to receive an information, and issue his summons, and giving a general form of conviction,) (p) any general comprehensive enactment regulating such proceedings; as the information, summons, service thereof, process against witnesses, hearing before the justices, and other proceedings, establishing one general uniform set of rules to be observed in all cases, with appropriate variations when necessary. From the want of these it will be found that the proceedings are frequently very different. Some. times the information or complaint, we shall find, must be on oath; in other cases, it suffices if it be in writing; and in others perhaps might be verbal. Sometimes also the summons must be actually served on the party accused himself; at others, may be left at his abode, and in others may be served on any inmate; and the other proceedings also vary. So that this general caution must be observed, that in each case the particular statutes applicable to the case must be carefully read and their provisions pursued; and if of doubtful import, then in prudence an excess of care should be adopted. And although the magistrate himself might be disposed to take upon himself the direction of all the proceedings, yet every prudent individual should be prepared to lay before the magistrate the best forms to be adopted in all stages of the proceeding, and with that view the following directions are given. We will first consider the terms of the principal recent enactments of a general nature or of most practical importance, and then state the practical proceedings in regular order. First, Common Assaults and Batteries.-The 9 Geo. 4, c. 31, mary proceeds. 27, after reciting that it was expedient that a summary power ings for a common assault or of punishing persons for common assaults and batteries should be provided under the limitations thereinafter mentioned, enacts "that where any person shall unlawfully assault or beat any "other person, it shall be lawful for two justices of the peace, battery, on 9 Geo. 4. c. 31. s. 27. 66 upon complaint of the party aggrieved, to hear and deter"mine such offence; and the offender, upon conviction thereof "before them, shall forfeit and pay such fine as it shall appear "to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds, which fine shall be paid "to some one of the overseers of the poor, or to some other "officer of the parish, township or place in which the offence (p) 3 G. 4, c. 23, s. 1, 2 & 3. |