CEEDINGS, &c. not necessarily import the same, or refer to the same offence as CHAP. IV. that charged in the information; and the conviction was there- SUMMARY PROfore quashed, because, as observed by Lord Holt, a conviction must be certain, and not taken by intendment. (2) It will be remembered, that whenever a statute requires a preliminary oath in support of the charge before the justice issues a summons, he should require the deponent to state the facts exactly as they occurred, and not merely in the words of the statute, and which if bona fide stated, will protect the informer or witness so swearing, from any liability for the subsequent proceedings, or for any imprisonment or search that may take place under a warrant founded on such oath. (a) The deposition should, in substance, charge the offence with as much certainty, and with the same negations of any exemptions in the enacting clause, as an information, and may, subject to these observations, be in the subscribed form, when the proceeding is for an assault and battery. (b) And when the oath is upon either of the other statutes, the substance of it should comprise the allegations in the preceding informations, though according to the genuine statement of the witness; (c) and the justice would do well to interrogate the deponent, whether the facts do not fall within some exemption in the enacting, or even the subsequent clauses. If a justice should cause the party to be imprisoned upon his warrant without a sufficient oath of an offence having been committed, he would be liable to an action of trespass. (d) tice to receive aninformation, and issue process thereon. Upon a clear charge of an offence before one or more justices, Seventhly, The and when there can be no reasonable ground for doubting the duty of a jusjurisdiction or the propriety of exercising it, a justice ought to receive the information and issue his summons or warrant when proper, and cause the charge to be heard; and if he should refuse, he might, in a very clear case, be compelled to act by mandamus from the Court of King's Bench, (e) and by some (z) 1 Lord Raym. 509. (a) Post, and Cohen v. Morgan, 6 Dowl. & Ry. 8; In Elsee v. Smith, 2 Chit. Rep. the party maliciously stated false facts and grounds. (b) E. F., of, labourer, maketh oath and saith, that on, &c. at — -, in the parish of -, and in a part thereof within the county of —, he this deponent was present, and did see C. D., of -, labourer, then and there and within the said county ["assault and beat A. B., "by then and there giving him several "blows and strokes with a whip and "with his fists, and by which the said "4. B. was, in the judgment and be county of at E. F. day of summons. in the Y. Z., a justice, &c. (d) Morgan v. Hughes, 2 Term Rep., (e) R. v. Wrottesley, 1 B. & Adolph. 648; ante, 1 Vol. 795 to 798; R. v. Broderip, 5 B. & Cres. 239; 7 D. & Ry. 861; and see 1 Stra. 413; id. 530; R. v. Benn, 6 T. R. 198. CEEDINGS, &c. CHAP. IV. particular enactments he would incur a penalty for the negSUMMARY PRO- lect. (e) But where justices have reasonable ground for doubting their jurisdiction, the Court will not compel them to do any act which might subject them to an action; (f) and in a late case, (g) Abbott, C. J., said, "if the conviction itself is not valid in law, "for not having been founded upon oath, and the magistrate "issues his warrant to apprehend the party, he will be liable to "an action of trespass; and we cannot compel him to put him"self in a situation of so much responsibility. If a justice of "the peace criminally forbears to discharge his duty, he is "amenable for his conduct by information, as for a public of"fence; but that is a very different thing from commanding "him to do that which may subject him to an action." The mere circumstance, however, of a defendant insisting that the justice has no jurisdiction, is not sufficient to excuse the justice in not proceeding, (h) and the Court of King's Bench will issue a mandamus, unless it appear very questionable whether the justice has jurisdiction, especially if there be no other course of proceeding; for otherwise the law would remain unadministered. (i) Sometimes the statute "authorizes and empowers ;' in other instances, the words are also "required" or enjoined, (k) and in the latter cases the justices are at least bound to proceed to a hearing, however they may decide. (1) Where under the law of the Customs there has been a seizure of goods, and the justices refuse to proceed in consequence of the legality of such seizure being questionable, the owner may by mandamus compel them to proceed, so as to enable him to reclaim his property. (m) Eighthly, The summons. Whether particularly directed or not, still according to natural justice, a magistrate, unless in cases where he has power and ought to issue a warrant in the first instance, should issue his summons, requiring the defendant to appear before one or two justices, according to the nature of the charge; (n) and whatever (e) Skinner's Rep. 61. (f) Ante, 1 vol. 796; R. v. Broderip, 5 Bar. & Cres. 239; 7 Dowl. & Ry. 861; R. v. Justices of Buckinghamshire, 1 B. & Cres. 485; 2 D. & R. 689; 1 Dowl. & Ry. Mag. Cases, 369; R. v. Robinson, 2 Smith R. 274. (g) R. v. Broderip, supra. (h) R. v. Wrottesley, 1 B. & Adolph. (i) R. v. Robinson, 2 Smith R. 274. () See all the cases in preceding notes, and ante, 1 vol. 796 (m) R. v. Todd, 1 Stra. 530. ; (n) Per Parker, C.J. in R. v. Simpson, 10 Mod. 379; R. v. Benn, 6 T. R. 198 and see R. v. Allington, 2 Stra. 678, 630; R. v. Venables, 2 Lord Raym. 1406; R. v. Constable, 7 Dowl. & R. 633; 3 Mag. Cas. S. C. R. v. Colamins, 8 Dowl. & R. 344. So payment of a poor rate cannot be enforced but after a demand and a formal summons of a justice; R. v. Benn, 6 T. R. 198. CEEDINGS, &c. may have been the practice under the Customs or Excise laws, CHAP. IV. a justice always ought himself, to sign such summons after he SUMMARY PROhas heard the charge, and not suffer his clerk to sign the same, or to issue any ready prepared summons. (o) The summons should fully state the charge as in the information, in order that the defendant may know what he has to answer, and may prepare his defence accordingly. But under the game laws it was usual not to set out the negations of all the exceptions fully, as was necessary in the information, but merely to say "he the "said defendant not being qualified by the laws of this realm "so to do." (p) It is, however, the safest course to copy the whole charge as in the information; and where a particular form of summons is prescribed by the statute, it must be observed. (q) The summons may be directed to the party accused himself; or, unless otherwise prescribed, there may be a precept to the constable, ordering him to summon the party; but the former is preferable. It must name a time (r) and place (s) of appearance, and usually, with analogy to other proceedings, should fix a certain hour of the day, and not between several named hours, as between eleven and one; (t) but nevertheless the party must, if the justice or justices be not ready to proceed to the hearing at the appointed hour, wait during all reasonable hours of the same day. (u) If the summons be dated of a day prior to that when the information was laid, and the party do not appear, any subsequent proceedings would be void. (v) So if it be to appear on an impossible day, as on Tuesday the 17th April when the 17th April fell on a Friday, no proceedings could be had thereon, unless the party appear and defend, (w) or perhaps it should appear that he was not misled. (x) The time appointed must always allow sufficient opportunity between the service of the summons and the time of appearance, to enable the party to prepare his defence and for his journey; and the justice should in this respect take care to avoid any supposition of improper hurry, or he may incur the censure of the Court of King's (0) R. v. Stevenson, 2 East, 365; and see R. v. Constable, 7 Dowl. & Ry. 663, as to the necessity for regularity and actual interference of the justice himself in all the proceedings. (p) R. v. James, Caldecot, 458; Burn's J. tit. Game. (q) R. v. Croke, Cowp. 30. (r) R. v. Dyer, 1 Salk. 181; R. v. Picton, 2 East, 196. (s) R. v. Simpson, 1 Stra. 46; R. v. Johnson, 1 Stra. 261. (t) The practice is so; and see cases as to notice of inquiry, Sayer R. 181; (u) 1 Douglas Rep. 198; Tidd, 9th (v) R. v. Kent, 2 Lord Raym. 1546; but aided probably by appearance and defence, in R. v. Johnson, 1 Stra. 261. (w) R. v. Dyer, 1 Salk. 181; cited in R. v. Hall, 6 Dowl. & Ry. 84; R. v. Stone, 1 East, 649. (a) 3 Bos. & Pul. 1; 1 Chitty's R. 10; but see id. 615. SUMMARY PRO CEEDINGS, &c. CHAP. IV. Bench, if not be subject to a criminal information. The precise time will generally depend on distance, and the other circumstances of each particular case. With analogy to other branches of the law, a man ought not to be required omissis omnibus aliis negotiis instantly to answer a charge of a supposed offence necessarily less than an indictable misdemeanor, on the same or even the next day, and should be allowed not only ample time to obtain legal advice and assistance, but also to collect his evidence; and even the convenience of witnesses should be considered; and therefore in general several days should intervene between the time of summons and hearing. In the superior Courts, in general, at least eight days' notice of inquiry and of trial are essential for the preparation of the defence; and a charge of an inferior offence may require full as much time, as there has not upon such a charge been any antecedent notice of the proceeding, as in actions; and as these charges are frequently made by parties under sudden excitement, it is better to allow them time to cool; and no inconvenience can result from delay, for if it be expected that the alleged offender will abscond, he may, in many cases, be apprehended in the first instance. Where the summons was to appear on the same day, the Court held it extremely unreasonable, as the party's attendance might be impossible, or he might not be able to collect his witnesses on so short a warning; but the Court held the objection aided by the defendant's appearance and entering into his defence without praying further time. (y) It is a general rule in these cases, as well as in proceedings in the superior Courts, that appearance cures the defect and uncertainty either as to time or place; (z) and the safer and only prudent course, is for a defendant, when served too late, nevertheless to attend before the justice, and state his objection to the time, and require an adjournment to another day, and which the justice will be bound to make. (a) But should he not appear, the justice must inquire into the time and circumstances of the service of the summons, and unless it appear to have been quite sufficient, should of his own accord adjourn the hearing and issue a fresh summons, reciting the former. If a justice should wilfully proceed to convict without a previous sufficient summons, or without enlarging the time when required, he may be prosecuted by information or indictment for the misdemeanor. (b) The form of the summons may be as (y) R. v. Johnson, 1 Stra. 261; R. v. (b) R. v. Venables, 2 Lord Raym. 1407; R. v. Simpson, 1 Stra. 46; and see observations in R. v. Stone, 1 East, 642, on R. v. Heber, 2 Barn. 101. in the note; (c) or a precept may be issued to a constable, and CHAP. IV. who is thereupon to summon the party. (d) SUMMARY PRO- the summons. It will be obvious that the summons must also be served in a The service of reasonable time, before that appointed for the hearing. In or dinary cases, as that of a notice to quit, it suffices that it may be either delivered to the party himself, or may be left at his residence; and upon proof of the latter, it will at least be presumed, that he has actually received it and in due time. (e) But as a party upon a conviction may incur a penalty, and even imprisonment, no such presumption is allowed; and unless the particular statute authorise a service by leaving the summons at the party's residence, it must be proved on the hearing, that he actually received the summons in due time to enable him to attend. (f) Some of the acts, we have seen, expressly authorize the (c) The form of summons under the 9 Geo. 4, c. 31; 7 & 8 Geo. 4, c. 29, and c. 30; and 1 & 2 W. 4, c. 32; and in general, may be as follows. It will be observed, that those acts require the oath of a credible witness before a summons can be issued, though the complaint need not be on oath. To C. D., of complaint Hertfordshire that you, &c. [here state the offence charged day of Convictions, 505. Form of sum(e) Ante, 1 Vol. 483; and Doe dem. mons to the Neville v. Dunbar, 1 Mood. & Mal. 10. defendant, on (f) Per Parke, C. J. 10 Mod. 345; a complaint R. v. Chandler, 14 East, 268; R. v. Co- information, lamins, 8 Dowl. & R. 344; and R. v. and after oath. Hall, 6 Dowl. & R. 84; id. Mag. Cas. 3 Vol. 19. In Rex v. Hall, it was held that the record of a conviction by default upon the now repealed Game Act, 5 Anne, chap. 14, must shew that the defendant has been personally summoned to appear to the information; and Abbott, C. J., said, "without giving any opinion, that a personal service in all cases is absolutely necessary, it is sufficient to say, that in this case, no sufficient substantial personal service appears to have taken place, and therefore the conviction must be quashed. Bayley, J. It is consistent with every analogy, that a party shall not be concluded, without personal service of the process which is to affect his liberty. It is laid down in Burn, Boscowen, Nares, and other text books, see Burn, J., tit. Conviction; Boscw. 60; Paley, on Convictions, by Dowling, 26; that personal service of the summons is necessary, unless where it is expressly dispensed with by statute. Of that opinion was Lord C. J. Parker; Rer v. Simpson, 10 Mod. 345. In that case, there was in fact a personal service; but the main point decided was, that a defendant who words are unnecessary. (†) The sealing, although usual, is not essential in a summons, though otherwise in a warrant. N |