Page images

where the work house is situated to commit the offender to the gaol of the county, &c. in which the parish is situate, to which he was chargeable when he committed the offence.- Vide also 11 & 12 Vict. c. 110, and 12 & 13 Vict. c. 103.

mary convic

Backing of war- The following, in ss. 11–15 of 11 & 12 Vict. c. 42, by s. 3
rants of appre- of the 11 & 12 Vict. c. 43, apply to summary convictions and
hension and

orders as well as indictable offences:
7. Upon proof of the handwriting of a justice to a warrant, a justice

of any county or place in England or Wales may indorse the
warrant, and authorize its execution within his jurisdiction

(s. 11). 8. English warrants may be backed in Ireland, and vice versá, in the

event of parties escaping (s. 12). 9. English warrants may be backed in the isles of Man, Guernsey,

Jersey, Alderney or Sark, and vice versá (s. 13); but there is no provision for backing Scotch or Irish warrants in those

islands. 10. English or Irish warrants may be backed in Scotland (s. 14).

11. Scotch warrants may be backed in England or Ireland (s. 15). Distress warrants in sum- Warrants of distress for penalties, &c. may be backed tions and orders. (11 & 12 Vict. c. 43, s. 19). Relative to in- The following apply to indictable offences exclusively: dictable of. fences only.

1. Justices are authorized to issue a warrant and commit for trial

any person charged with having committed an indictable offence within their jurisdiction, no matter where such person

shall reside or be ; 2. Or, for offences out of their jurisdiction, if the person charged be

or be supposed or be suspected to be within it (11 & 12 Vict.

c. 42, s. 1). 3. And also for offences committed at sea or abroad (id. s. 2), or

against whom an indictment is found (id. s. 3), if the person charged be within their jurisdiction.-[N.B. In either of these cases the offender must be committed to the same prison as if the offence had been coinmitted on land within the jurisdiction of the committing justice.]-(Vide 7 & 8 Vict. c. 2, s. 3 ; 9 Geo. 4, c. 31, s. 7.) See Arch. 2nd edit. of Jervis's Acts,

pp. 11, 12.) 4. The general rule as to the place of trial of an offender is, that he,

if tried at the assizes, must be tried in that county in which he committed the offence; or, if tried at the sessions, he must be tried in like manner in that county, riding, division or borough within which the offence was committed, and for which the sessions are holden. The following instances are general enlargements of this rule, or exceptions to it. (2 Arch. J. P.

Offences on the boundary or boundaries of two or more counties,

or within 500 yards of such boundary, or begun in one
county and completed in another, may be tried, &c. in

either (7 Geo. 4, c. 64, s. 12).
Offences upon persons or property during a journey or voyage

may be tried, &c. in any county through part of which the
carriage or vessel, &c. shall have passed in the course of the

journey or voyage (id. s. 13).
Offences upon persons, partly in England, or partly out of it, may

be tried, &c. in the county or place in England where the
death, stroke, poisoning or hurt shall happen (9 Geo. 4,

c. 31, s. 8).
Offences in counties of towns, &c. may, if necessary, be tried at

the assizes for the next adjoining county (38 Geo. 3, c. 52,

s. 2).
An accessory before the fact to any felony may be tried and punished

as if he were a principal felon (11 & 12 Vict. c. 46, s. 41).
An accessory after the fact to felony may be tried as such, together

with or after the conviction of the principal, or for a sub-
stantive felony, whether the principal convicted or not, or
amenable to justice, in any court having jurisdiction to try
the principal (id. s. 2). By s. 3, counts for stealing and re-

ceiving may be joined in the same indictment.
(For the place of trial in particular cases, vide “ Oke's Synopsis,"

2nd edit., 4th column of Chap. II, of Part II., “Where triable,"
pp. 341-365).

tions and orders

It will be necessary to mention in this place, in relation Summary con

victions and to the forms and convictions (I. 1-3) and orders (K. 1-3) in

orders: the 11 & 12 Vict. c. 43, that, by s.17 of that act, those forms When convicare to be used in all cases under statutes hitherto passed, in Jervis's Acts, whether they contain such forms or not; but as regards after- c. 43, to be passed statutes, they are to be used except only when such used. subsequent acts do not give forms, and when they do give them, they are to be used instead (1).

As to other forms in particular, Jervis's Acts contain no other forms. specific provisions as to their use; and it therefore follows, that those in the Schedules to Jervis's Acts are to be used, except when subsequent statutes do give such forms.

(1) The only statutes passed since Jervis's Act (11 & 12 Vict. c. 43) which give forms of conviction and order, are the 11 & 12 /Vict. c. 63 (Public Health Act, 1848); 11 & 12 Vict. c. 123 (Nuisances Act); and 12 & 13 Vict. c. 92, s. 23 (Cruelty to Animals Act).



[ocr errors]

Provisions as to It is also perhaps important to observe, that by various pro-
objections to visoes in the sections on the subject in Jervis's Acts (m) no

objection can now be taken or allowed to many of the pre-
liminary forms and processes to compel appearance of the
defendant, viz. the information, complaint, summons or warrants
of apprehension, “ for any alleged defect therein in substance

or in form, or for any variance between it and the evidence
“ adduced on the part of the prosecution (informant or com-

plainant] before the justice or justices who shall take the “ examination of the witnesses in that behalf;” “ but if any “ such variance shall appear to such justice or justices to be “such that the party charged has been thereby deceived or

misled, it shall be lawful for such justice or justices, at the

request of the party so charged (n), to adjourn the hearing “ of the case to some future day.” The above provisions apply to both indictable offences and summary convictions and orders, so that they are placed on the same footing with regard to the

effect and operation of such objections to the preliminary proEffect of vari- cesses : but the act (11 & 12 Vict. c. 43) relating to summary ances between

convictions and orders has this additional provision which spe-
information and
evidence in cifies what variances are not material to the proceedings on
summary con-

informations (o) for offences punishable upon summary con-
viction, and it is difficult to foresee what objections to the forms
can be material in any given case: the provision is this (sect. 9)

-“ That in all cases of informations for any offences or acts
“punishable upon summary conviction any variances between

“ such information and the evidence adduced in support thereof Date of offence. as to the time at which such offence or act shall be alleged

“ to have been committed shall not be deemed material, if it

“ be proved that such information was in fact laid within the Place of offence. “ time limited by law for laying the same; and any variance

" between such information and the evidence adduced in sup

port thereof as to the parish or township in which the offence

or act shall be alleged to have been committed shall not be “ deemed material, provided that the offence or act be proved “ to have been committed within the jurisdiction of the justice


(m) Sections 8, 9, 10 of 11 & 12 Vict. c. 42 (Indictable Offences), and
sections 1. 3 of 11 & 12 Vict. c. 43 (Summary Convictions and Orders).

(n) In the corresponding sections of 11 & 12 Vict. c. 43 (Summary Con-
victions and Orders), instead of these words in italic the passage is, “
terms as he or they shall think fit.

(0) Vide note (a), post, 14, for the distinction between an information and a

upon such

" or justices by whom such information shall be heard and deter“ mined.” But it must be here mentioned, that there is nothing Information or in the act 11 & 12 Vict. c. 43, that expressly requires that the complaint re:

commended to information should be in writing, and if a verbal one was taken be in writing po objection therefore can be made that it is not in writing, in all cases. unless in cases where it is specially required to be so by the statute creating the particular offence or act under consideration or regulating the prosecution for it; in cases where it is so required, it must be in writing: in cases where the magistrate intends to issue a warrant in the first instance on an information, it ought to be in writing, because the statute (s. 2) requires that the matter of the information should first be substantiated, by oath or affirmation (Arch. 2nd edit. of Jervis's Acts, note, p. 123), and also when a warrant is granted on an information or complaint after a summons has been issued and disobeyed (s. 2). In the proceedings in indictable offences there is this difference: no statute relating to the prosecution for a felony or misdemeanor requires an information to be in writing, and sect. 8 of the 11 & 12 Vict. c. 42, makes a general provision that the information shall be in writing, and on oath or affirmation, in all cases where a warrant issues in the first instance; in all other cases the information may be by parol merely, and without oath or affirmation.

The Protection of Justices in the Use of Forms.]-As to the The Protection forms to be used in the concluding stages of the proceedings,- of Justices from from the adjudication to the enforcing of the conviction or order (u 8 12 Vict. or other matter determined, -it may not be out of place here to c. 44). give an abstract of the remaining Jervis's Act (11 & 12 Vict. c. 44 (p)) for protecting justices of the peace from vexatious actions for acts done by thern in the execution of their office, for they will apply to the justices jurisdiction, or excess of jurisdiction, as appearing upon their written proceedings, against which such actions are generally aimed. The general provisions General proof this act applicable to all acts of a justice as to the form of visions as to form

of action, notice, action and notice thereof, &c. may be classed as follows (9):— &c. 1. No action is to be brought unless commenced within six calendar

months next after the act complained of is committed (s. 8);
and one calendar month's notice in writing of such action is to

(p) Passed and commencing on the same day as 11 & 12 l'ict. cc. 42, 43. (Vide note (a), ante, p. 1).

(9) From Oke's Synopsis, 2nd edit. p. 8–10.

be given to the justice either personally or left at his abode

(s. 9). 2. After notice of action given, and before it is brought, defendant

(the justice) may tender amends ; or, after action brought, and before issue joined, pay money into court. If no more damage proved, a verdict to pass for defendant, and the sum paid in to be paid out of court to the defendant; and if amount exceeds the defendant's costs, the residue is to be paid to the plaintiff. If plaintiff elect to accept the sum paid in in satisfaction of damages, a judge to grant an order to that effect, and that defendant shall pay the plaintiff's taxed costs, and the action be

determined (s. 11). 3. The onus of proof of due notice, of action brought within the

time limited, of the cause of action stated in notice, and that it arose in the county laid as venue, to lie on the plaintiff'; in either case, if no proof, the plaintiff to be nonsuit, or a ver

dict for the defendant (s. 12). 4. The venue is to be laid in the county where the act complained

of was committed, or, if in the County Court, in the district ; and the defendant may plead the general issue, and put any special matter in evidence under such plea; but no action is to be brought in any such County Court if the justice object thereto, and if within six days after being served with a summons such justice, or bis attorney or agent, shall give written notice to the plaintiff that he objects to being sued in such court, all proceed

ings afterwards had in such court shall be null and void (s. 10). 5. No action to be brought for the manner in which a justice shall

exercise a discretionary power given him (s. 4). 6. If a justice refuse to do an act, the Court of Queen's Bench may,

by rule grounded on an affidavit of the facts, order him to do it,

and no action shall be brought against him for doing it (s. 5). 7. If an action be brought where by this act it is prohibited, a judge

may set aside the proceedings (s. 7). 8. For an act done by a justice in the execution of his duty as such

justice, with respect to any matter within his jurisdiction, the action shall be on the case; and it shall be expressly alleged in the declaration that such act was done maliciously and without

reasonable and probable cause (s. 1). 9. For an act done by a justice without jurisdiction or ercceding his

jurisdiction, any person injured thereby, or by any act done under any conviction or order made or warrant issued by such justice thereon, may maintain such action without such allega

tion, as in 8 above (s. 2). 10. If the act complained of is shown to have been done maliciously

and without reasonable and probable cause, and a verdict is given against the justice, or if judgment by default, full costs

« PreviousContinue »