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have been committed within the jurisdiction of the justice by whom the information is heard and determined.

4. If any such variance, or any other variance between the information, complaint, summons or warrant, and the evidence adduced in support thereof, appears to the justice present and acting at the hearing to be such that the defendant has been thereby deceived or misled, the justice may, upon such terms as he thinks fit, adjourn the hearing of the case to some future day. R. S. C. c. 178, s. 28.

818. A summons may be issued to procure the attendance, on the hearing of any charge under the provisions of this part, of a witness who resides out of the jurisdiction of the justices before whom such charge is to be heard, and such summons and a warrant issued to procure the attendance of a witness, whether in consequence of refusal by such witness to appear in obedience to a summons or otherwise, may be respectively served and executed by the constable or other peace officer to whom the same is delivered or by any other person, as well beyond as within the territorial division of the justice who issued the same. 51 V. c. 45, ss. 1 & 3.

849. The room or place in which the justice sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access so far as the same can conveniently contain them. R. S. C. c. 178, s. 33.

850. The person against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf.

2. Every complainant or informant in any such case shall be at liberty to conduct the complaint or information, and to have the witnesses examined and cross-examined, by counsel or attorney on his behalf. R. S. C. c. 178, 88. 34 & 35.

851. Every witness at any hearing shall be examined upon oath or affirmation, and the justice before whom any witness appears for the purpose of being examined shall have full power and authority to administer to every witness the usual oath or affirmation. R. S. C. c. 178, s. 36.

Sections 37 and 38 of c. 178 are left out.

852. If the information or complaint in any case negatives any exemption, exception, proviso or condition in the statute on which the same is founded it shall not be necessary for the prosecutor or complainant to prove such negative, but the defendant may prove the affirmative thereof in his defence if he wishes to avail himself of the same. R. S. C. c. 178, s. 47.

853. In case the accused does not appear at the time and place appointed by any summons issued by a justice on information before him of the commission of an offence punishable on summary conviction, then if it appears to the satisfaction of the justice that the summons was duly served a reasonable time before the time appointed for appearance, such justice may proceed er parte to hear and determine the case in the absence of the defendant, as fully

and effectually, to all intents and purposes, as if the defendant had personally appeared in obedience to such summons, or the justice may, if he thinks fit, issue his warrant as provided by section five hundred and sixty-three of this Act and adjourn the hearing of the complaint or information until the defendant is apprehended. R. S. C. c. 178, s. 39.

854. If, upon the day and at the place so appointed, the defendant appears voluntarily in obedience to the summons in that behalf served upon him, or is brought before the justice by virtue of a warrant, then, if the com plainant or informant, having had due notice, does not appear by himself, his counsel or attorney, the justice shall dismiss the complaint or information unless he thinks proper to adjourn the hearing of the same until some other day upon such terms as he thinks fit. R. S. C. c. 178, s. 41.

855. If both parties appear, either personally or by their respective counsel or attorneys, before the justice who is to hear and determine the complaint cor information, such justice shall proceed to hear and determine the same. R. S. C. c. 178, s. 42.

856. If the defendant is present at the hearing the substance of the information or complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, or why an order should not be made against him, as the case may be.

2. If the defendant thereupon admits the truth of the information or complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, as the case may be, the justice present at the hearing shall convict him or make an order against him accordingly.

3. If the defendant does not admit the truth of the information or complaint, the justice shall proceed to inquire into the charge and for the purposes of such inquiry shall take the evidence of witnesses both for the complainant and accused in the manner provided by Part XLV. in the case of a preliminary inquiry; Provided that the prosecutor or complainant is not entitled to give evidence in reply if the defendant has not adduced any evidence other than as to his general character; provided further, that in a hearing under this section the witnesses need not sign their depositions. R. S. C. c. 178, ss. 43, 44, 45 & 46.

857. Before or during the hearing of any information or complaint the justice may, in his discretion, adjourn the hearing of the same to a certain time or place to be then appointed and stated in the presence and hearing of the party or parties, or of their respective solicitors or agents then present, but no such adjournment shall be for more than eight days.

2. If, at the time and place to which the hearing or further hearing is adjourned, either or both of the parties do not appear, personally or by his or their counsel or solicitors respectively, before the justice or such other justice as shall then be there, the justice who is then there may proceed to the hearing or further hearing as if the party or parties were present.

3. If the prosecutor or complainant does not appear the justice may dismiss the information, with or without costs, as to him seems fit.

4. Whenever any justice adjourns the hearing of any case he may suffer the defendant to go at large or may commit him to the common gaol or other prison within the territorial division for which such justice is then acting, or to such other safe custody as such justice thinks fit, or may discharge the defendant upon his recognizance, with or without sureties at the discretion of such justice, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned.

5. Whenever any defendant who is discharged upon recognizance, or allowed to go at large, does not appear at the time mentioned in the recognizance, or to which the hearing or further hearing is adjourned, the justice may issue his warrant for his apprehension. R. S. C. c. 178, ss. 48, 49, 50 & 51.

858. The justice, having heard what each party has to say, and the witnesses and evidence adduced, shall consider the whole matter, and, unless otherwise provided, determine the same and convict or make an order against the defendant, or dismiss the information or complaint, as the case may be. R. S. C. c. 178, s. 52.

859. If the justice convicts or makes an order against the defendant a minute or memorandum thereof shall then be made, for which no fee shall be paid, and the conviction or order shall afterwards be drawn up by the justice on parchment or on paper, under his hand and seal, in such one of the forms of conviction or of orders from VV to AAA inclusive in schedule one to this Act as is applicable to the case or to the like effect. R. S. C. c. 178, s. 53.

FORMS UNDER PART LVIII.

VV.-(Section 859).

CONVICTION FOR A PENALTY TO BE LEVIED BY DISTRESS AND IN DEFAULT OF SUFFICIENT DISTRESS, BY

IMPRISONMENT.

Canada,

Province of

County of

Be it remembered that on the

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day of

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the year victed before the undersigned, a justice of the peace for the said county, for that the said A. B. (etc., stating the offence, and the time and place when and where committed), and I adjudge the said A. B. for his said offence to forfeit and pay the sum of $

in the said county, A. B. is con

(stating the penalty, and also the compensation, if any), to be paid

and applied according to law, and also to pay to the said C. D. the sum of for his costs in this behalf; and if the

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said several sums are not paid forthwith, (or on or before the of next), * I order that the same be levied by distress and sale of the goods and chattels of the said A. B., and in default of sufficient distress, I adjudge the said A. B. to be imprisoned in the common gaol of the said county, at

in the said county of

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. (there to be kept at hard labour,

if such is the sentence) for the term of

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unless the said several sums and all costs and charges of the said distress (and of the commitment and conveying of the said A. B. to the said gaol) are sooner paid.

Given under my hand and seal, the day and year first above mentioned,

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in the county aforesaid.

J. S., [SEAL].

J. P., (Name of county).

*Or when the issuing of a distress warrant would be ruinous to the defendant and his family, or it appears he has no goods whereon to levy a distress, then instead of the words between the asterisks ** say, "inasmuch as it is now made to appear to me that the issuing of a warrant of distress in this behalf would be ruinous to the said A. B. and his family," (or, "that the said A. B. has no goods or chattels whereon to levy the said sums by distress").

WW.-Section 859.)

CONVICTION FOR A PENALTY, AND IN DEFAULT OF PAY MENT IMPRISONMENT.

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said county for that he the said A. B. etc., stating the offence, and the time and place when and where it was committed), and I adjudge the said A. B. for his said offence to forfeit and pay the (stating the penalty and the compensation, if any) to be paid and applied according to law; and also to pay to the

sum of

said C. D. the sum of if the said several sums are not paid forthwith (or, on or before next), I adjudge the said A. B. to be imprisoned in the in the said county

for his costs in this behalf; and

common gaol of the said county, at

of

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(and there to be kept at hard labour) for the term of

unless the said sums and the costs and charges of conveying the said A. B. to the said common gaol are sooner paid.

Given under my hand and seal, the day and year first above mentioned at in the county aforesaid.

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and for the said county, for that he the said A. B. (dc., stating the offence, and the time and place when and where it was com-mitted); and I-adjudge the said A. B., for his said offence, to beimprisoned in the common gaol of the said county, at

in the county of

for the term of

, (and there to be kept at hard labour)

; and I also adjudge the said A. B. to

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pay to the said C. D. the sum of for his costs in this: behalf, and if the said sum for costs are not paid forthwith (or on or before next,) then I order that the said sum be levied by distress and sale of the goods and chattels of the said! A. B.; and in default of sufficient distress in that behalf, adjudge the said A. B. to be imprisoned in the said common gaol (and kept there at hard labour). for the term of commence at and from the term of his imprisonment aforesaid, unless the said sum for costs is sooner paid.

CRIM. LAW-58

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