As to Summary allowed for either party (s. 12); where two or more required, they must be present and acting together, and it is not necessary that the justice who acts before or after such hearing shall be the justice or one of the justices by whom the same shall be heard and determined (s. 29); informer cannot be a witness (s. 15); default of appearance of defendant, on proof of due service of summons, warrant to apprehend and adjourn hearing, or proceed ex parte (s. 13); default of complainant or informer attending, proceed and dismiss complaint or information with or without costs (ss. 13, 16) (No. 31, 32, 34, 35, 36, 37). Appearance of both parties; charge read; examination of witnesses; not necessary to prove a negative in information, &c. (s. 14); adjournment of hearing, and defendant bailed (No. 13, 15), or committed (No. 12) (s. 16). Adjudication to be pronounced of imprisonment, penalty, amount of damage or compensation, or both, and [in all cases (s. 18)]. Costs of complainant and the imprisonment in default, as the case may be (Convictions, No. 39–41); and orders (No. 44-46)(i). If defendant in prison for another offence, cumulative imprisonment (s. 25). judication to be made (s. 14, Form No. 30). Minute of ad Copy of minute of an order to be served before enforced (s. 17, Form No. 60). Enforcing Convictions aud Orders.—Any one justice may do so, and it is not necessary that he should be the justice or one of the justices by whom the case was heard and determined (s. 29). Convictions]-1. Where the punishment is imprisonment only, committal immediate (No. 48); costs recovered by distress (No. 49); in default, additional imprisonment for not exceeding one calendar month, unless payment thereof, costs of distress, and of commitment and conveyance to prison, be sooner made (s. 24, No. 50); on confession of no goods, &c., committal for costs immediate (No. 51). 12 Vict. c. 43, not affecting the kind of justices nor the number, except as regards after-passed statutes containing no direction to the contrary. (i) The practical distinction between a Conviction and an Order is this:the former is the record of an affirmative adjudication upon an Information for an offence or act punishable either by a penalty or imprisonment; the latter is now also a record of a like determination upon a Complaint for non-payment of a sum of money, or for the doing of some other thing, vide note (a), p. 14. Here it is proper to recommend to justices' clerks that the convictions and orders should be prepared by them as soon as practicable after each case is heard and adjudicated upon by the justices, so that they may be ready to be signed the first convenient opportunity. Where they are prepared only a day or two before the sessions, at which all orders and convictions have to be returned, much inconvenience arises in obtaining the justices' signatures in proper time, and errors often occur in the drawing them up so long after the facts (perhaps not always clearly written down) are forgotten. Convictions. 2. Where for a penalty, and in default imprisonment, com- As to Summary mittal immediate, or after time given (No. 52); costs included in same warrant as well as conveyance to gaol (s. 23). 3. Where for a penalty, to be levied by distress, and in default, imprisonment; detainer until return of distress warrant for same and costs, unless security given (No. 53, 55); may be backed (ss. 19 20); in default of distress (s. 21), or confession of no goods, or if goods and the distress would be ruinous (s. 19), committal for term adjudged unless penalty and costs of conviction, costs of distress and of commitment and conveyance to prison, be sooner paid (s. 21), (No. 58, 54). 4. Where no remedy provided by the particular statute in default of distress, imprisonment for not exceeding three calendar months, unless penalty, costs of conviction, of distress, and of commitment and conveyance to prison, be sooner paid (s. 22). Forms as 3 above. 5. Where no remedy given for enforcing payment of a penalty, it must be by distress (s. 19). See 4 above for imprison ment in default. Orders.]-Minute of an order to be first served (s. 17, Form No. 1. Where the order is for the doing of some act, and on dis- 3. Where for payment of a sum recoverable by distress, the 4 and 5. Where no remedy provided by the particular statute Costs on Dismissal.-Minute of order to be first served (s. 17); re- favour of the respondent, any one justice may enforce such As to Indictable and not paid, and the clerk of the peace certifies the non-payment (No. 81), any justice may issue a distress warrant (No. 82) for same; and in default of distress, imprisonment for not exceeding three calendar months, unless the amount, costs of distress and of commitment and conveying to prison be sooner paid (s. 27, No. 83). Secondly, As TO INDICTABLE OFFENCES (11 & 12 Vict. The letter and figures "No. 1," refer to the number prefixed to the Preferring the Charge (j).—If a warrant is intended to issue, an in formation in writing and on oath must be laid (No. 1); but if a summons, it may be by parol merely, and without oath (s. 8). Process to issue against Offenders.—A summons (No. 7), or warrant (No. 6), at discretion, may be issued in the first instance (ss. 1, 9); the service of summons to be by a constable or other peace officer, either personally, or, if the accused cannot conveniently be met with, then by leaving the same with some person for him at his last or most usual place of abode (s. 9). Warrant on disobedience (No. 9) and proof of service of summons (s. 9), or a warrant (No. 6), may be issued before or after the time of appearance to the summons (s. 1). For offences committed at sea or abroad, a justice where the offender shall be may grant a warrant (s. 2, No. 12). Where an indictment found, and the accused is at large, a justice, where offence committed or accused shall be, upon certificate (No. 13) from the clerk of indictments or clerk of the peace, to issue his warrant (No. 14), and on accused being brought before him, and he is satisfied of his identity, to commit him for trial in the usual manner (No. 16); or where accused in custody, to issue warrant to detain him (No. 18, s. 3). Any warrant or any search warrant may be granted on a Sunday (s. 4). Remanding or bailing Accused.-One justice may do so by commit ting accused to gaol (No. 21) for not exceeding eight clear days at a time; or if not three clear days, a verbal order to detain him is sufficient. Instead of committal or detention, accused may be bailed with or without sureties (No. 23, 24, 25); and (j) There are only a few instances of the time of prosecution for an indictable offence being limited; they are 19 Geo. 4, c. 69, s. 4 (Night Poaching); 8 & 9 Vict. c. 87, s. 134 (Smuggling): and 1 Geo. 1, st. 2, c. 5, s. 8.(Riots); 11 Vict. c. 12, s. 4 (Treason).-Oke's Synopsis, 2nd edit. 301. justice may have accused before him before expiration of the As to Indictable Compelling Witnesses' Attendance, &c.—By s. 16 a summons (No. The Preliminary Examination.-Place not an open court for this Where offender apprehended in one county, &c., charged with Binding over Prosecutor and Witnesses, &c.-The justices taking the Offences. (k) Whether to be committed to the assizes or sessions will be seen for every offence at a view, in Oke's Synopsis, 2nd edit. p. 327, and in the fourth column of Chap. II. of Part II. of that work. As to Indictable Offences. Points in preparing other after the trial of accused, unless recognizance sooner acknowledged. If accused not committed or held to bail for the offence, any justice may [by order, No. 47,] discharge the witness from gaol (s. 20). Bailing Accused (s. 23).-Before committal, the examining justice may at discretion take bail in any felony and in certain specified misdemeanors (No. 48, 49)(l). After committal, the committing justice may do so; or if he be of opinion that the accused should be bailed, he may grant a certificate of consent on the back of the commitment (No. 39), or on a separate paper (No. 50); and any justice attending the gaol shall bail him, and the sureties may be taken elsewhere on production of a like certificate to a justice of the same county, or without such certificate by the committing justice. In other misdemeanors than those specified, the examining justice may bail instead of committing, or after committal a visiting justice of the gaol may do so. No bail to be taken for treason but by order of secretary of state. A warant of deliverance (No. 51) to be lodged with the gaoler when bail received after committal (s. 24). As Jervis's Act, 11 & 12 Vict. c. 43, relating to summary convictions and orders applies only partially to the matters in Chap. II. of Part III. of this Collection of Precedents, an outline of practice here would be useless, as it will be similar in Orders to that in Summary Convictions, ante, p. 14; but each title will show whether it is or not within the operation of that statute, and also the form to be used, if it be so; that statute, however, does not apply at all to matters to be done in special sessions generally (Vide Arch. 2nd edit. of Jervis's Acts, p. 138). In preparing special forms, or forms not herein given, those in Jervis's Acts or in this collection will serve as outlines or forms not given. guides, and by the observance of the few following general notes of the points or formal parts to be attended to in the preparation of such instruments (m) and the order in which (1) The cases in which discretionary and where compulsory for the justice to take bail for the accused are shown at one view in the 5th column of Chap. II. of Part II. of Oke's Synopsis, 2nd edit. p. 341--365. The 6th column of the same portion of that work shows what part of the costs of prosecution are allowed in each case. (m) Suggested on a perusal of the "Bench Formulist." |