Page images
PDF
EPUB

As to Summary

Convictions.

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 defen:lant, on proof of due service of summons, warrant to apprehend and adjourn hearing, or proceed er 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). Minute of adjudication to be made (s. 14, Form No. 30). 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 dis-
tress (No. 49); in default, additional imprisonment for
not exceeding one calendar month, unless payment there-
of, costs of distress, aud 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.

2. Where for a penalty, and in default imprisonment, com- As to Summary mittal immediate, or after time given (No. 52); costs in

Convictions. cluded 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 dis-
tress, 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.

60).
1. Where the order is for the doing of some act, and on dis-

obedience imprisonment, committal for term adjudged im-
mediate (No. 61); costs recovered as in 1 above (Convic-

tions), s. 24, (No. 62, 63, 64), commitment immediate.
2. Where for payment of a sum recoverable by committal in

the first instance, the same as 2 (Convictions) above (s. 23,

No. 65).

3. Where for payment of a sum recoverable by distress, the

same as 3 (Convictions) above (s. 19), No. 66, 67, 68, 69,

70, and Commitment, No. 71.
4 and 5. Where no remedy provided by the particular statute

in default of distress, or no remedy for enforcing a sum on
an order, the proceeding will be the same as 4 and 5 on

Convictions above (ss. 19, 22).
Costs on Dismissal.---Minute of order to be first served (s. 17); re-

covered from complainant by distress (No. 34), and in de-
fault imprisonment for not exceeding one calendar month,
unless same and costs of distress and of commitment and con-
veying to gaol be sooner paid (ss. 18, 26, No. 37); on confes-

sion of no goods, &c., committal immediate (No. 38).
Appeal.-After an appeal against a conviction or order decided in

favour of the respondent, any one justice may enforce such
conviction or order; and if costs of appeal given to either party,

O

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).

As to Indictable
Offences.

Secondly, As to INDICTABLE OFFENCES (11 & 12 Vict.

c. 42).
The letter and figures “ No. 1,” refer to the number prefixed to the

General Forms in Chap. I. of Part II.
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 indict. able offence being limited; (they are 19 Geo. 4, c. 69, s. 4 (Night Poaching); 8 & 9 Vict. c. 87, s. 134 (Smuggling): and I Geo. 1, st. 2, c. 5, s. 8.(Riots); 11 Vict. c. 12, s. 4 (Treason). - Oke's Synopsis, 2nd edit. 301.

[ocr errors]

justice may have accused before him before expiration of the As to Indictable remand if in gaol (No. 22, s. 21).

Offences.
Compelling Witnesses' Attendance, &c.—By s. 16 a summons (No.

27) may be issued by any one justice, on an oath being made
that the person within the justice's jurisdiction is likely to give
material evidence for the prosecution. Service may be person-
ally or at abode; if summon disobeyed, a warrant (No. 29) may
be issued on proof of service; or if a justice is satisfied by oath
that the witness will not attend without being compelled, a
warrant in the first instance (No. 30) may be granted. Refus-
ing to be examined or to answer questions, committal to prison

for not exceeding seven days (No. 31).
The Preliminary Examination.—Place not an open court for this

purpose (s. 19). Depositions of witnesses (No. 33) to be taken
on oath in the presence of accused, who are to sign same as
well as the justice or justices (s. 17); after examination of pro-
secutor's witnesses completed, justice to cause depositions to be
read to accused, and then to caution him (s. 18, No. 37). If
evidence insufficient, accused to be discharged; but if sufficient,
to be committed (No. 38) for trial(k), or bailed (see below), s.
25. Money in accused's possession may be applied by justice's
order (No. 61) towards the expenses of his conveyance to
prison; if none, a separate order on county treasurer for the
amount, setting forth his condition when received (s. 26,
No. 59).

Where offender apprehended in one county, &c., charged with
an offence committed in another county, &c., he may be exa-
mined in the former (ss. 11, 22); and if evidence sufficient,
committal in the usual manner to the gaol of the county where
the offence committed, and witnesses bound over ; but if the
evidence be insufficient, justice to order [by warrant, No. 41,]
accused to be taken before a justice of the county where offence
committed, and bind over the witnesses to give evidence, at the
same time delivering the complaint and depositions taken to
the constable. Order (No. 42) to be made by the latter justice
on county treasurer for constable's expenses of conveying the

accused into the proper county (s. 22).
Binding over Prosecutor and Witnesses, &c.—The justices taking the

examinations to do so. Recognizance (No. 42, 44,) to specify
trade and number of residence of person bound. Witnesses
refusing to enter into same may be committed (No. 46) until

(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 11. of that work.

As to Indictable

Offences.

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. 17,] 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)(?).

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 gavler 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 paring other

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

Points in pre

(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 Formulisi.”

« PreviousContinue »