Page images
PDF
EPUB

of suit follow; and where there is a verdict for the justice, he
is to have his costs as between attorney and client (s. 14). [Vide

16, post, where the plaintiff is not entitled to any costs.] The particular provisions of the statute, which, in addition Particular proto the general provisions above, are applicable more imme- cable to the acts diately to the acts of justices in matters within their cognizance, of justices. are as follows: 11. No such action (for an act done without or exceeding juris

diction, as in 9 above] shall be brought for an act done under a
conviction or order until after such conviction shall have been

quashed either upon appeal or by the Court of Queen's Bench; 12. Nor for any thing done under a warrant issued to procure the

appearance of the party, and which shall have been followed
by a conviction or order, until after such conviction or order

shall be so quashed;
13. Nor for an act done under a warrant to compel appearance (if

not followed by a conviction or order, or if it be a warrant for
an indictable offence), if a summons were previously issued and

not obeyed (s. 2).
14. If one justice make a conviction or order, and another grant a

warrant upon it, the action must be brought against the former,

not the latter, for a defect in such conviction or order (s. 3). 15. After a conviction or order, confirmed on appeal, no action is to

be brought for any thing done under a warrant of distress or

commitment upon it (s. 6).
16. If the plaintiff in an action is entitled to recover, and shall prove

the levying or payment of any penalty or sum of money under
any conviction or order as part of his damages, or if he prove
that he was imprisoned, and seeks to recover damages for
such imprisonment, he shall not be entitled to recover the
amount of such penalty or sum so levied or paid, or any sum
beyond two-pence as damages for such imprisonment, or any
costs of suit whatsoever, if it shall be proved that he was actually
guilty of the offence of which he was so convicted, or that he
was liable by law to pay the sum he was so ordered to pay, and
(with respect to such imprisonment) that he bad undergone no
greater punishment than that assigned by law for the offence of
which he was so convicted, or for nonpayment of the sum he

was so ordered to pay (s. 13).
17. No action to be brought for issuing a distress warrant for a poor

rate, by reason of any defect in the rate, or that the party is not
rateable (s. 4).

2. On the ARRANGEMENT OF THIS COLLECTION OF

PRECEDENTS.

2. On the Arrangement of this Collection of Precedents.

Arranged in
Three Paris.

In conducting magistrates' proceedings it is important to keep in view the nature of the thing requiring to be done;for instance, whether it is a judicial or a ministerial act; or rather, whether it is one wherein the justice's acts are merely preliminary or initiatory, or whether he may adjudicate and determine on a case brought before him; the judicial functions of justices consisting of the hearing and adjudicating upon informations and complaints out of general or quarter sessions; their ministerial functions, consisting of receiving informations or complaints, for indictable offences, and also for offences or matters determinable in a summary way; causing the party charged to appear and answer, either by summons or by warrant, and taking bail, &c.; and, in the case of summary convictions or orders, causing such conviction or order to be executed, by warrant of distress or of commitment. (Arch. And edit. of Jervis's Acts, note, p. 7.)

For the purpose of giving every aid to the Magistrates and Magistrates' Clerks in the use of the large body of Forms in this Collection, and required by them, it is divided into three distinct and easily recognized Parts, the First relating to Summary Convictions, the Second relating to Indictable Offences, and the Third to Special and Petty Sessions matters; so that each class or subject of Forms may be found together: this arrangement of the Contents being the same as that of the Subjects and Practice in the second edition of the Compiler's other work, “ The Magisterial Synopsis," which has been much approved. Each of the first Two Parts is then divided into Chapters of General and Particular or Special Forms; in the Chapters of General Forms, those given in the Schedules to Jervis's Acts, 11 & 12 Vict. cc. 42, 43, are, with others necessary, placed in Sections or Divisions in the order in which the stages of procedure in all cases occur, with all the various modes of designation of “Justices of Counties," “Adjoining Counties," &c.; and the Chapters of Particular or Special Forms contain Statements describing Offences in a simple manner under each of the usual Titles, with other Special Forms which are necessary in the cases under consideration, and in the order they are required in practice, and with all practical variations and additions or departure from the General Forms to suit the circumstances or exigencies of the case or requirements of statutes, from the preferring of the Information or Complaint down to the Conviction or Commitment or other process used in enforcing the Judgment. Part III. is also divided into Two Chapters, the First giving Forms for use antecedent to and in all Matters required to be done in Special Sessions; and the Second, those in Petty Sessions, or by one Justice. As to the additions and variations alluded to above, neces- The necessary

variations made sary by requirements or terms of particular statutes, or under in the Forms special circumstances, to be made in the General Forms of throughout. Information, Complaint, Summons or Warrant, Distress Warrants or Commitments, Convictions and Orders, in many Offences or under many Titles in each part of this Collection, it is only necessary to observe, that they are placed at the foot of the respective Titles to which they are applicable, and consist of the following: 1. Special Designation of the Justice or Justices taking the Inform

ation or adjudicating, as a Police Magistrate, a Stipendiary
Magistrate, of two adjoining Counties, acting in a City for a
County, &c., for a detached part of another County, at a Special

Sessions, or of a Division, or particular Petty Sessions.
2. Designation of Complainant or Prosecutor.
3. Designation of Defendant.
4. Particular Locality of Offence or Matter, and within Justices' juris-

diction, as a Petty Sessions Division, where Lands situated, &c.
5. Retention of the particular Terms of the Forms in a Statute, such

as the Title of the Act, &c.
6. Special Terms of Adjudication, of Damage, or Compensation,

Whipping, Second Offence, &c.
Likewise, under each Title, is stated the particular kind of
General Form, such as a Distress Warrant or Commitment,
to be used in enforcing the Conviction or Order.

The Forms necessary in proceedings relating to the of- Forms in mat. fences and matters excepted by sect. 35 of the 11 & 12 Vict. ters within the c. 43 (Summary Convictions and Orders) from the operation of 11 & 12 Vict.

exception clause of that statute, are collected from the several statutes relating c. 43. to those offences or matters, or from those Forms in approved use, and are placed where the class of the subject requires them. The General Forms however in Chap. I. of Part I., being those from Jervis's Act, 11 & 12 Vict. c. 43, may however be safely used where the statute in particular does not give any for use.

a

3. The Manner of using the Forms, and the Provisions of Jervis's Acts thereon.

3. The MANNER OF USING THE Forms, AND THE PROVISIONS

OF Jervis's ACTS THEREON.
The best description of the manner of using the General
Forms in Jervis's Acts will be an outline of the provisions of each
statute, with a reference to the Form to be used by a number.

As to summary convictions.

First, As to SUMMARY CONVICTIONS (11 & 12 Vict. c. 43).
The letters and figures "No. 10” refer to the number prefixed to the

General Forms in Chap. I. of Part I.
Information or Complaint (a).-One justice may receive and grant

process thereon, and also to a witness, and do all other neces-
sary acts and matters preliminary to the hearing (s. 29). Not
to be on oath except where a warrant granted in the first in-
stance (or on disobedience of a summons, s. 2], or the particular
statute requires it (s. 10) (6). Complaint need not be in writing
unless expressly required (s. 8) (c). Only one offence or

:-an

p. 11).

(a) The distinction between an Information and a Complaint is this :Information is the groundwork of a charge for an offence punishable summarily, either by fine or imprisonment; a Complaint being an application on the nonpayment of money, or for the doing of some other thing subjecting the party in either case to imprisonment in default; an Information is technically said to be laid, a Complaint to be made: a Conviction is the affirmative result of an Information; an Order that of a Complaint (Oke's Synopsis, 2nd edit. note (b),

(b) The particular statutes and sections requiring the Information or Complaint in certain cases to be on oath are the following (extracted from Oke's Synopsis, 2nd edit.) :-9 Geo. 4, c. 31, s. 33 (Assaults); 6 & 7 Will. 4, c. 37, s. 13 (Bread and Flour); 6 Geo. 4, c. 129, s. 7 (Combination); 33 Geo. 3, c. 55, s. 1 ; 5 Geo. 4, c. 83; 5 & 6 Will. 4, c. 76, s. 127 (Constables); 6 & 7 Will. 4, c. 65, s. 9; 7 & 8 Geo. 4, c. 29, s. 65; 9 Geo. 4, c. 69, s. 3 (Game); 5 & 6 Vict. c. 98 (Gaols and Houses of Cor. rection); 11 & 12 Vict. c. 99, s. 10, and 7 & 8 Geo. 4, c. 30, s. 30 (Inclosures); 10 & 11 Vict. c. 82 (Juvenile Offenders); 7 & 8 Geo. 4, c. 29, s. 65 (Larceny); 3 & 4 Will. 4, c. 90, s. 56 (Lighting and Watching Act); 7 & 8 Geo. 4, c. 30, s. 30 (Malicious Injuries); 22 Geo. 2, c. 27, s. 8; 17 Geo. 3, c. 56, s. 19; 6 & 7 Vict. c. 40, s. 22 (Manufactures, &c.); 38 Geo. 3, c. 55, s. 1; 17 Geo. 2, c. 38; 50 Geo. 3, c. 50, s. 4; 5 & 6 Vict. c. 57, and 5 Geo. 4, c. 83 (Poor); 6 & 7 Vict. c. 30, s. 3 (Poundbreach); 3 & 4 Vict. c. 97, s. 13 (Railways); 7 & 8 Vict. c. 112, s. 15 (Seamen); 11 & 12 Vict. c. 107, s. 7 (Sheep); 9 & 10 Vict. c. 100, s. 22 (Steam Navigation); 19 Geo. 2, c. 21, s. 12 (Swearing); 5 Geo. 4, c. 83 (Vagraots); 20 Geo. 2, c. 19; 6 Geo. 3, c. 25; 32 Geo. 3, c. 57; 4 Geo. 4, c. 34, s. 3 (Apprentices and Servants); 50 Geo. 3, c. 41 (Hawkers and Pedlars); 33 Geo. 3, c. 54, s. 15; 49 Geo. 3, c. 125, s. 1; 10 Geo. 4, c. 56, s. 25; 4 & 5 Will. 4, c. 40, s. 7 (Friendly Societies); 8 & 9 Vict. c. 109, s. 3 (Gaming Houses); 11 & 12 Vict. c. 63, s. 39 (Public Health Act, 1848); 39 & 40 Geo. 3, c. 99, ss. 12, 13 (Pawnbrokers).

(c) The Information and Complaint are required by the following statutes to be in writing :-7 & 8 Vict. c. 101 (Poor Apprentices); 11 Geo. 2, c. 19 (Distress); 4 & 5 Will. 4, c. 76, s. 101 ; 7 & 8 Vict. c. 101; 9 & 10 Vict. c. 66 ; 6 & 7 Will. 4, c. 96 (Poor); 11 & 12 Vict. c. 107 s. 8 (Sheep); 9 & 10 Vict. c. 100, s. 2, and 11 & 12 Vict. 0. 81 (Steam Navigation);

matter of complaint to be inserted, and may be preferred by As to Summary
counsel or attorney (s. 10). Where no time provided by the Convictions.
particular statute, it is to be preferred within six calendar
months (s. 11)(d). This statute does not give Forms of In-
formation or Complaint (see a Form No.1). Aiders and abettors

are punishable as principals (s. 5).
Process to issue to Defendants (e).—On an Information for an offence

or act a summons (No. 8), or warrant (No. 11), at discretion
in the first instance, or warrant on disobedience of the summons
(No .10), and proof of service. On a Complaint a summons
(No. 8), or warrant on disobedience thereof (No. 10). Service
of summons personal or at abode a reasonable time before hear-

ing, or ex parte hearing (ss. 1, 2).
Bailing Defendant.-One justice may commit (No. 12), or take

bail (No. 13), either before (s. 16) or on adjournment of the
hearing (No. 16) (ss. 9, 3, 16). After adjudication, till return
of distress warrant (s. 20) (No. 55). Provisions as to estreating

recognizances (No. 15).
Summons to Witness (No. 19).- May be issued in all cases (f) by

any one justice, on an oath being made that the witness, who
is within the justice's jurisdiction, is likely to give material
evidence for either party; service at abode or personally,
tender of expenses necessary; warrant on disobedience of sum-
mons (No. 21), which can be backed; or warrant in the first
instance if witness will not attend (No. 22). Refusing to be
examined, &c., imprisonment for not exceeding seven days (g)

(No. 23) (s. 7).
Hearing.-Before the same number of justices required by the

particular statute to adjudicate; under after-passed statutes,
containing no direction to the contrary, one justice only necessary,
[any qualified justices may act](h); in open court; attorney

7 & 8 Vict. c. 101; 8 & 9 Vict. c. 10 (Bastards); 7 & 8 Will. 3, c. 6, and 53 Geo. 3, c. 127, s. 4 (Tithes). In what cases under these statutes and sections they are to be so taken, the reader must refer to the books of practice; and vide also the observations at p. 9, that the Information and Complaint should, as a safer rule, be always taken in writing in the first instance.

(d) Vide Oke's Synopsis, 2nd edit., 3rd column of Chap. II. of Part I., where the cases applicable to this section are shown. (e) Vide note (@), p. 20, Oke's Synopsis, 2nd edit.

Under what circumstances this summons to a witness can be granted, vide Oke's Synopsis, 2nd edit., p. 27.

(g) It appears that this punishment would be cumulative in those cases where the statutes giving cognizance of the matters impose a penalty on witDesses not ailending, &c.- there are many such, for which see the notes to the 2nd column of Chap. II. of Part I. of Oke's Synopsis, 2nd edit.

(h) Vide Oke's Synopsis, 2nd edit., 4th column of Chap. II. of Part I., as to what justices are disqualified under particular statutes from acting, and when the bearing must take place before justices of and in a particular locality, &c.; as also the number required to hear and adjudicate, this statute of 11 &

« PreviousContinue »