resides, or wherein the cause of action (the work done for which the fees are due) arose (9 & 10 Vict. c. 95, s. 60, and see 13 & 14 Vict. c. 61, s. 1), the justices having no power to enforce the payment from the party liable to the justices' clerk, or to order that the clerk shall not receive his usual fees.

chester, against an informer, where the defendant to the information suffered the imprisonment adjudged by the convicting magistrates without paying penalty or costs (Drew v. Harris, 14 J. P. 26); and the other in the county court at Coventry, against overseers of the poor for fees for appointing special sessions for hearing appeals against parochial rates under 6 & 7 Will. 4, c. 96, as allowed in the table of fees, this judgment being opposed to the opinion of the poor law board (Wilmot v. The Overseers of Foleshill, 14 J. P. 403; 2 Magistrate, 100).

PART I.

AS TO SUMMARY CONVICTIONS AND ORDERS.

CHAPTER I.

THE LAW AND PRACTICE OF PROCEDURE IN GENERAL.

observations.

THE law and practice of procedure before justices of the peace Preliminary out of quarter sessions, with respect to summary convictions and orders (a), are regulated principally by Sir John Jervis's Act (11 & 12 Vict. c. 43), which came into operation on the 2nd of October, 1848, and otherwise by provisions in the acts of parliament giving cognizance of the offence or matter (b).

The preamble of the statute 11 & 12 Vict. c. 43, which has effected great alteration and improvements upon the old practice, recites that "it would conduce much to the improvement "of the administration of justice within England and Wales, "so far as respects summary convictions and orders to be "made by her majesty's justices of the peace therein, if the

(a) 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 the record of a like determination upon a complaint for non-payment of a sum of money, or for the doing of some other thing

(b) By section 36 the following statutes and parts of statutes are repealed from the 2nd day of October, 1848, viz.-whole statutes, 3 Geo. 4, c. 23, and 5 Geo. 4, c. 18; so much of statutes 18 Eliz. c. 5, s. 1, as relates to exhibiting an information, and pursuing the same in person, and not by an attorney or deputy; 31 Eliz. c. 5, s. 5, as relates to the time limited for exhibiting an information for a forfeiture upon any penal statute; 27 Geo. 2, c. 20, ss. 1, 2, as relates to distresses by warrants; 18 Geo. 3, c. 19, ss. 1, 2, 3, 5, as relates to costs on complaints before justices; 33 Geo. 3, c. 55, s. 3, as relates to the execution of distress warrants; 6 & 7 Will. 4, c. 114, s. 2, as relates to the right of persons accused, in cases of summary convictions, to make their defence and to have all witnesses examined and cross-examined by counsel or attorney; and all other act or acts or parts of acts which are inconsistent with the provisions of this act, save and except so much of the said several acts as repeal any other acts or parts of acts, and also except as to proceedings now pending to which the same or any of them are applicable.

What 11 & 12

"several statutes and parts of statutes relating to the duties of "such justices, in respect of such summary convictions and "orders, were consolidated, with such additions and alterations "as may be deemed necessary, and that such duties should be "clearly defined by such positive enactment;" and the statute Vict. c. 43, ap- applies, with some exceptions hereafter noticed, to "all cases plies to. "where an information shall be laid before one or more of her "majesty's justices of the peace for any county, riding, divi"sion, liberty, city, borough or place within England or Wales, "that any person has committed, or is suspected to have com"mitted, any offence or act within the jurisdiction of such "justice or justices for which he is liable by law, upon a summary conviction for the same before a justice or justices of "the peace, to be imprisoned or fined, or otherwise punished;" and also to "all cases where a complaint shall be made to any "such justice or justices upon which he or they have or shall "have authority by law to make any order for the payment of "money or otherwise" (sect. 1); and which section, after providing for the issue of the summons to the defendant and its service in such cases, contains a proviso that nothing in the statute "shall oblige any justice or justices of the peace to "issue any summons in any case where the application for any "order of justices is by law to be made ex parte” (c); but the 35th section excludes from its operation several matters: it enacts, "that nothing in this act shall extend or be construed "to extend

Exception clause.

To any warrant or order for the removal of any poor person, who is or shall become chargeable to any parish, township or place (d);

Nor to any complaints or orders made with respect to lunatics, or the expenses incurred for the lodging, maintenance, medicine, clothing or care of any lunatic or insane person (e);

(c) The orders here referred to are the following:-orders of removal of paupers and lunatics (excepted, however, from the operation of the act by sect. 35, supra); on overseers for constables and justices' clerks' fees (5 & 6 Vict. c. 109, s. 17); on county treasurer (27 Geo. 2, c. 3, s. 1; 1 & 2 Will. 4, c. 41, s. 13; 11 & 12 Vict. c. 42, ss. 22, 26; 10 & 11 Vict. c. 82, s. 15); on railway company (1 & 2 Vict. c. 80).

(d) The statutes excepted by this are:-4 & 5 Will. 4, c. 76; 8 & 9 Vict. c. 117; 9 & 10 Vict. c. 66; 10 & 11 Vict. c. 33; 11 & 12 Vict. c. 31; 11 & 12 Vict. c. 111; 12 Vict. c. 13; and 12 & 13 Vict. c. 103; having reference to the subjects in Part III. of the present work.

(e) The statutes on this subject are:-8 & 9 Vict. cc. 100, 126; and 9 & 10 Vict. c. 84; 1 & 2 Vict. c. 14; and 3 & 4 Vict. c. 54, having reference also to subjects in Part III. of this work; also 12 & 13 Vict. c. 103.

Nor to any information or complaint or other proceeding under or
by virtue of any of the statutes relating to her majesty's revenue
of excise or customs, stamps, taxes or post office (ƒ);
Nor shall anything in this act extend or be construed to extend to
any complaints, orders or warrants in matters of bastardy made
against the putative father of any bastard child, save and except
such of the provisions aforesaid as relate to the backing of war-
rants for compelling the appearance of such putative father, or
warrants of distress, or to the levying of sums ordered to be
paid, or to the imprisonment of a defendant for non-payment
of the same (g);

Nor shall anything in this act extend to any proceedings under the
acts of parliament regulating or otherwise relating to the labour
of children and young persons in mills or factories" (h).

Many doubts have from time to time been raised as to the applicability of the stat. 11 & 12 Vict. c. 43, to proceedings in certain cases; and it appears from the opinions of competent authorities upon the subject that the cases to which it applies are all summary convictions upon informations, not excepted from the operation of the act by the 35th sect. before noticed; and to all complaints, where the statutes under which the complaint is framed expressly require an order for payment of money or otherwise to be made; but to none others. The following mooted cases are within the statute :- - statute 4 Geo. 4, c. 34, as to servants in husbandry, &c. (Arch. 2nd ed. of Jervis's Acts, p. 137, note, and 1 Magistrate, p. 111); statute 20 Geo. 2, c. 19, s. 3, as to apprentices; and orders for church rates (Arch. p. 138); but the following cases are not within. the operation of the act in question:-enforcing payment of poor and highway rates (i); forcible entry, deserted premises,

(f) The following are a few of the statutes having reference hereto, several of which are referred to in Chap. III. of Part I., and Chap. II. of Part III. :1 Will. 4, c. 64; 4 & 5 Will. 4, c. 85; and 3 & 4 Vict. c. 61 (Beerhouses); 8 & 9 Vict. c. 87 (Smuggling); 9 & 10 Vict. c. 99 (Wreck and Salvage); 50 Geo. 3, c. 41 (Hawkers and Pedlars); 2 & 3 Will. 4, c. 120 (Post Horses); 1 Vict. c. 36, and 10 & 11 Vict. c. 85 (Post Office); 11 & 12 Vict. c. 121; 12 & 13 Vict. c. 40; 7 & 8 Geo. 4, c. 53; 4 & 5 Will. 4, c. 51, and 4 Vict. c. 20 (Excise); and 12 & 13 Vict. cc. 29, 90 (Customs).

(g) The statutes upon the subject here referred to are: -4 & 5 Will. 4, c. 76, ss. 59, 76; 2 & 3 Vict. c. 85, ss. 1, 2; 7 & 8 Vict. c. 101; and 8 & 9 Vict. c. 10, which are contained in Part III. of this work.

(h) The statutes upon the subject are:-42 Geo. 3, c. 73; 3 & 4 Will. 4, c. 103; 7 & 8 Vict. c. 15; 8 & 9 Vict. c. 29; 9 & 10 Vict. cc. 18, 40; 10 & 11 Vict. c. 29; also 5 Geo. 4, c. 96.

(i) This was remedied in the next session by an express statute, 12 Vict. c. 14. The statute 11 & 12 Vict. c. 43, as to the time of making the complaint, does not apply to proceedings by auditors (12 & 13 Vict. c. 103, s. 9).

Doubts raised as to the applicability of 11 & 12 Vict.

c. 43, to certain

cases.

Outline of new practice.

recovery of premises by landlords, sureties of the peace or good behaviour. In these and the like cases justices must be guided by the statutes which give them jurisdiction in the particular proceeding, without reference to this act (Arch. pp. 138, 139).

Before proceeding to give the new and consolidated practice, it may be convenient to show an outline of the provisions of the 11 & 12 Vict. c. 43, comprising a view of the various points to be attended to in the practice:

Information or Complaint, and Time of preferring.-One justice may receive and grant process thereon, and also to a witness, and do all other necessary acts and matters preliminary to the hearing (s. 29). Not to be on oath, except where a warrant granted in the first instance [or on disobedience of a summons, sect. 2], or the particular statute requires it (s. 10). Complaint need not be in writing, unless expressly required (s. 8). Only one offence or matter of complaint to be inserted, and may be preferred by counsel or attorney (s. 10). Where no time provided by the particular statute, it is to be preferred within six calendar months (s. 11). Aiders and abettors are punishable as principals (s. 5).

Process to issue to Defendants.-On an information for an offence or act, a summons or warrant at discretion in the first instance, or warrant on disobedience of the summons and proof of service. On a complaint a summons, or warrant on disobedience thereof. Service of summons personal or at abode, a reasonable time before hearing, or ex parte hearing (ss. 1, 2).

Bailing Defendant.-One justice may commit or take bail either before (s. 16) or on adjournment of the hearing (ss. 9, 3, 16). After adjudication till return of distress warrant (s. 20). Provisions as to estreating recognizances.

Summons to witness.-May be issued in all cases 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 summons, which can be backed; or warrant in the first instance, if witness will not attend. Refusing to be examined, &c., imprisonment for not exceeding seven days (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; in open court; attorney allowed for either party (s. 12); where two or more required, they must be present and acting together,