CHAP. IV. CEEDINGS, &c. Of the warrant offender. summons to be left at the dwelling-house, and others the service on any inmate there, provided the purport of the summons be explained to them. (g) But in the former case, it must appear that the service was on the wife, or an immediate servant of the party charged. (h) And even in these cases, if the party do not appear, and it be doubtful whether he actually received the summons in time, the magistrate ought to adjourn the hearing, and cause a fresh summons to be served. By the common law, no party could be arrested or imprito apprehend soned for an offence, not indictable before he has been indicted or convicted; but it being found that transient offenders (to use the language of the modern highway and turnpike acts,) for want of a power to apprehend them, eluded justice; modern acts, we have seen, have introduced in numerous instances, powers to apprehend, even without warrant; (i) and we have seen that the recent acts, 9 Geo. 4, c. 31, s. 33; 7 & 8 Geo. 4, c. 29, s. 65, and c. 30, s. 30, contain express powers for a justice in certain cases if he shall so think fit, after oath of the offence, to issue his warrant to apprehend for petty offences in the first instance, and even without any previous summons. (k) In the exercise of this discretionary power, no justice should cause a party to be imprisoned, unless he be satisfied by the oath of a credible witness, that the offender is about to abscond, () but should issue a summons in the first instance. (m) At all events, before any warrant or imprisonment, there must have been a formal charge of an offence within the particular act, or the magistrate will be subject to an action, even for a did not choose to appear after being fore he could not appear thereupon ; and, when one day is set forth, his appearance on another cannot be intended." This is an authority in principle governing the present case. I think this conviction must be quashed, for not showing that the defendant was personally summoned. Rex v. Hall, 6 Dowl. & Ry. 84. (g) Ante, 131, 137, 141, 143. (h) R. v. Clement, 4 B. & Ald. 218. (i) Ante, 1 Vol. 617 to 633. (k) And see Bane v. Methuen, 2 Bing. 67; 7 J. B. Moore, S. C. (1) See observations of Lord Tenterden, in R. v. Birnie, 1 Mood. & M. 160; 5 Car. & P. 206, S. C.; and of Tindal, C.J. as to transient offenders, in Hanway v. Boultbee, 2 Mood. & M. 15; and 4 Car. & Pa. 350. (m) R. v. Martyr, 13 East, 55. SUMMARY PRO slight and temporary imprisonment; (n) and even in cases CHAP. IV. where imprisonment before conviction would be legal, care CEEDINGS, &c. must be observed expeditiously to bring the party before the justice, (0) and that the justice himself proceed speedily to a final hearing, and that he do not detain the party an unreasonable time under colour of re-examination. (p) The form of a warrant to apprehend in the first instance, may be as in the note (q). It will be observed, that the recent statutes require an oath before any summons or warrant should be issued; and at common law in general, before a man can legally be deprived of his liberty, it is a rule that there must have been oath of his having committed an offence, and otherwise only a summons should issue. (r) Besides the recent acts we have more particularly considered, there were others which contain similar powers of apprehension in certain cases; (s) and when the statute requires the justice to cause the offender to be brought before him, it has been considered that this implies an authority to use compulsory process. (t) But unless an express power be given to apprehend before conviction, a justice cannot issue his warrant to imprison in default of appearance to his summons, and can only proceed ex parte to a hearing of the informer's evidence, and dismiss the information, or acquit, according to the weight of evidence. (u) It is a general maxim, that every Englishman's house is his Of a search castle, and that no outer door can be broken for the purpose of (n) R. v. Birnie and others, 1 Mood. & M. 160; Bridgett v. Coyney, 1 Man. & Ry. Mag. Cases, 1; 1 Man. & Ry. Rep. 211, S. C.; Morgan v. Hughes, 2T. R. 225. (0) Wright v. Court, 4 Bar. & Cres. 596; 6 Dow. & Ry. 622, S. C.; Davis v. Capper, 10 Bar. & Cres. 28. (p) Id. ibid. To the Consta (4) Hertfordshire. {ble of, and all other peace officers of the said county. absent himself from and out of the said warrant. hend and bring before me, or some Form of war- (s) 42 Geo. 3, c. 119, s. 4; 47 Geo. (t) Paley Conv. 24, on 19 Geo. 2, CEEDINGS, &c. CHAP. IV. apprehending him, except in cases of treason, felony, or oreach SUMMARY PRO of the peace, or contempt of the House of Lords or Commons; and though if an outer door be open, a person may if he be certain that his goods are therein, and illegally placed there by the occupier, lawfully enter to take the same away, yet he does so at his peril, and is subject to an action of trespass if it should turn out that his goods were not there; (u) and until the recent enactment, a search warrant could only be obtained upon an oath that a felony indictable, or misdemeanor, had been committed, and shewing reasonable suspicion that the stolen goods were concealed in a particular house; (v) and if such a warrant were maliciously obtained without reasonable cause, the party obtaining and acting under it, is subject to an action on the case; (w) and if the warrant were illegal in form, the magistrate is liable also to an action of trespass. (x) But now we have seen, that the 7 & 8 Geo. 4, c. 29, s. 63, enacts, "That if any credible witness shall prove upon oath before a Justice of "the Peace, a reasonable cause to suspect that any person has "in his possession, or on his premises, any property whatever, on or with respect to any such offence (i. e. any illegal stealing of personalty or part of the realty, not constituting 66 66 felony, or indictable misdemeanor, but punishable summarily) "shall have been committed, the justice may grant a warrant "to search for such property, as in the case of stolen goods." The course of proceedings in the case of a search warrant, where goods have been feloniously stolen, will in general apply. (y) To obtain a search warrant under this act, there must, by the terms of the act, be an oath of a reasonable cause to suspect that a named person has in his possession or on his premises at, &c., according to the facts, certain named property stolen. The oath need not swear absolutely to any stealing, but only to suspicion, and stating the circumstances. (z) The warrant may be framed in substance from the forms in Burn's Justice, (a) and should in terms in general only authorize a search in the day time, (b) though there may be exceptions. (c) The entry into a dwelling-house of another, upon the imputation of his having there concealed stolen property, is so strong a measure, (u) Ante, 1 Vol. 641 to 646. (v) Burn's Justice, title Search War- (w) Elsee v. Smith, 2 Chitty's R. 304. (y) Burn J. tit. Search Warrant. rant. (b) 2 Hale, 150. (c) Barlow's Justice, title Search Warrant. and so injurious to character, that upon charges in these cases of small offences, a very strong case of guilt should be established before a justice should issue a warrant of this description. CHAP. IV. SUMMARY PRO CEEDINGS, &c. attendance of Before the hearing, the informer and the defendant must of securing respectively consider the means of obtaining the appearance of evidence and witnesses and the production of documents. But it is ques- witnesses. tionable whether Justices of the Peace out of sessions, have in the absence of express authority given by the particular act, any power of summoning witnesses before them for or against a summary proceeding; at least they have no power of enforcing attendance. (d) But such a power has been given, though only in particular cases, by modern acts; and sometimes penalties (as in the game act, 1 & 2 W. 4, c. 32, s. 40,) of even 57. have been imposed upon witnesses in case of non-attendance. (e) But no such power is given by 9 Geo. 4, c. 31, or 7 & 8 Geo. 4, c. 29, or c. 30. The want of such a power renders the jurisdiction very imperfect; for a complainant, for want of it, may be unable to proceed, and a defendant may be unjustly convicted, because he may not have been able to enforce the attendance of a material witness, and who may have been kept back by the complainant. It would be unaccountable that the legislature should omit giving the power in the three principal and general acts, so very extensive in the enactments, and yet anxiously give it, and impose a penalty, in the statute 1 & 2 W. 4, c. 32, s. 40, were it not that the latter act relates to game, a property, which in the estimation of some persons, is superior to all others in ideal value. To supply this manifest defect in other cases, a magistrate would be justified in dismissing the complaint, in case a material witness should neglect to attend. In the case of an examination upon oath of the owner of demolished buildings, or his servant, in order to found proceedings against the hundred, it has been held to be no objection that the examination was brought ready prepared to the magistrate, if he do not require any further communication. (ƒ) But in general, the statement of any material evidence should not be drawn up until the parties are before the justice. We shall consider the application of this rule hereafter, when ex (d) Paley Conv. 33; Burn J. tit. Evidence; 2 Vol. 82. (e) And see 7 Geo. 4, c. 33, s. 20. (f) Lowe v. Broxtowe, 3 Bar. & Adolph. 550; ante, 1.Vol. 580, 1. CHAP. IV. amining the conduct to be observed when preparing for the SUMMARY PRO CEEDINGS, &c. trial of an action. The hearing, ings before one or two justices, &c. The proper course, as well for the complainant as the defendant, is, as soon as practicable after the service of the summons, to apply to the justice who issued the summons, for his summons to each material witness; and as the issuing the same would be in furtherance of an authorized proceeding, and at least an innocent act, even when not expressly authorized, a justice should, when essential to justice, grant it valeat quantum; and when an express power has been given to summon witnesses, as in the Game Act, 1 & 2 W. 4, c. 32, s. 40, one or two justices are to sign the summons, and in case of neglect to attend at the time and place appointed, and no sufficient excuse being proved, or if he should refuse to answer, he forfeits not exceeding 57., recoverable also by summary proceedings. The form of summons may be as subscribed. (g) The competence of witnesses, and their evidence, will be presently considered. At the appointed hour, the complainant or informer, with his and proceed- witnesses, and the party charged, with his evidence, are to attend before the justice or justices, and wait, as we have seen, a reasonable time until he be ready. (h) But a magistrate who is not as punctual as his other official duties will admit, is unfit for his station. The hearing and proceedings before the drawing up the formal conviction, may be considered with reference to the following several points, viz., the jurisdiction of the justices, and their number and character; the non-appearance of the defendant, and proof of the summons; the adjournment by the justices; the right to appear and be assisted by counsel, attorney, or friend; the reading of the information; the objections to the information; the mode of conducting the hearing; Form of summons to a witness. (g) County of Whereas informa- : in the -, at fence: These are therefore to require A. D. 1834. (h) Ante, 175. |