and it is not necessary that the justice who acts before or after Outline of new Appearance of both parties; charge read; examination of witnesses; Enforcing Convictions and Orders.—Any one justice may do so, and Convictions.-1. Where the punishment is imprisonment only, committal immediate; costs recovered by distress; in 2. Where for a penalty, and in default, imprisonment, com- Outline of new practice. distress, and of commitment and conveyance to prison be sooner paid (s. 22). 5. Where no remedy given for enforcing payment of a penalty, it must be by distress (s. 19). See 4, supra, for imprisonment in default. Orders.-Minute of an order to be first served (s. 17). 1. Where the order is for the doing of some act, and on disobedience imprisonment, committal for term adjudged immediate; costs recovered as in 1, supra (Convictions), s. 24; committal immediate. 2. Where for payment of a sum recoverable by committal in the first instance, the same as 2 (Convictions), supra (s. 23). 3. Where for payment of a sum recoverable by distress, the same as 3 (Convictions), supra (s. 19). 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, supra (ss. 19, 22). Costs on Dismissal.-Minute of order to be first served (s. 17); recovered from complainant by distress, and in default imprisonment for not exceeding one calendar month, unless same and costs of distress and of commitment and conveying to gaol be sooner paid (ss. 18, 26); on confession of no goods, &c. committal immediate. 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, and not paid, and the clerk of the peace certifies the nonpayment, any justice may issue a distress warrant for same; and in default of distress, imprisonment for not exceeding three calendar months, unless the amount, costs of distress and of commitment and of conveying to prison be sooner paid (s. 27). Application of Penalties, &c.—To be paid by gaoler and constable to the clerk to justices of the division, and by him applied as directed by statutes; if no direction, to treasurer of county, &c. (s. 31). The provisions of the 11 & 12 Vict. c. 43, must be considered as supplemental to the provisions of statutes subsequently passed (i. e. after 14th August, 1848), regulating summary proceedings before justices, except in so far as the same may be inconsistent therewith; and in case of inconsistency between the statutes, the statute of the later date will govern the ceedings. pro Practice. The Practice of Procedure may be conveniently arranged Divisions of the under the following heads; the general forms or outlines in the schedule to the 11 & 12 Vict. c. 43, being incorporated under the respective sections and divisions of the subject to which they are to be applied, and notes in the body and at the foot comprising explanations of the changes and practical observations on the various branches of the practice. This chapter, it will be seen, has reference to Orders as well as Convictions, as many of the statutes requiring an order to be drawn up are interspersed throughout the tabular view of Offences in Chap. 2, and it will also apply to various matters in Part III., to which reference will there be made. Sect. 1. Of the Information and Complaint, their Requisites and Time, p. 49. 2. The Process to issue to Defendants, p. 64. 3. Of remanding Defendant, and taking Bail before 4. Of compelling Witnesses' Attendance, &c., p. 72. 6. Of enforcing Convictions and Orders, &c., p. 102. 8. Of Appeal and Time, &c., p. 126. SECT. 1. OF THE INFORMATION AND COMPLAINT(j), THEIR It will be observed that an information here referred to is (1) As to Infor an offence or act for which the offender is liable by law, formations. upon a summary conviction for the same before a justice or justices of the peace, to be imprisoned, or fined, or otherwise punished (sect. 1, ante, p. 44). The information, in these summary convictions of a penal Basis of jurisnature, being the foundation of the justice's jurisdiction, and diction. the basis of all the subsequent proceedings (Paley on Conv. (j) The distinction between an information and a complaint is this: An information is the groundwork of a charge for an offence or act punishable summarily, either by fine or imprisonment; a complaint being an application on the nonpayment of money, or for the doing of some other thing, subjecting the party in either case to imprisonment in default; an information is technically said to be laid, a complaint to be made; a conviction is the affirmative result of an information, an order that of a complaint. Where the particular statute expressly requires an order, and where a conviction, will be readily known by reference to the 5th column of Chap. 2. E Time. Whom to lay. 3rd edit. p. 31), should be carefully prepared, in order to show every ingredient and requirement of the statute or statutes which give cognizance of the offence, and which we will presently consider. The time limited for commencing proceedings by the act of parliament relating to each particular case must be strictly adhered to; but if no time is already or shall hereafter be specially limited in such act, the complaint shall be made and the information laid within six calendar months from the time when the matter of such complaint or information respectively arose (s. 11) (k). In some statutes the party must be convicted within a limited time, and the laying of the information merely within the period will not be sufficient; nor is the necessity affected by the fact that the conviction was not made within the time limited in consequence of an adjournment at the defendant's request (Dowell v. Benningfield, 1 Car. & Mar. 9; Rex v. Bellamy, 1 B. & C. 500; Rex v. Tolley, 3 East, 467); but in other cases, where the proceedings are commenced in due time by the laying of the information, the hearing and subsequent proceedings will be valid, though postponed to a term beyond the period mentioned in the act. (R. v. Barrett, 1 Salk. 383; Paley, 41). In almost every case in which an act is to be done within a certain time after the happening of an event, the courts have adopted as a rule, that the day on which the event happened (e. g. the commission of the offence, or the time when the matter of complaint arose), is to be excluded, and that on which the act is done (e. g. the preferring the information or complaint) is to be included (Pellew v. Inhabitants of Wonford, 9 B. & C. 134; Lester v. Garland, 15 Ves. 248; Williams v. Burgess, 12 A. & E. 635). If the time be expressed by the year, or an aliquot part, as a half, a quarter, &c. of a year, the computation is by calendar months of twelve to the year; but if months are mentioned, and not the year, they are always computed by lunar months of four weeks to the month (Paley, 29). See as to the operation of 13 & 14 Vict. c. 21, s. 4, hereon. Every complaint or information (whether by a party aggrieved or an informer) may be made or laid by the com (k) The old practice as to the time in penal statutes was regulated by the repealed statute, 31 Eliz. c. 5, s. 5. Vide the 3rd column of Chap. 2 for the time in all cases in which the proceedings must commence, or the conviction take place. plainant or informant in person, or by his counsel or attorney, or other person authorized (1) in that behalf (s. 10). It is conceived, however, that this provision will not apply to those cases where a particular person is required by the statute to lay the information or make the complaint. Although the statute 11 & 12 Vict. c. 43, does not expressly When to be in require the information to be in writing, it evidently contem- writing. plates that it should always be so taken (and it is the safest rule to adopt (m)) by the proviso in the 1st section, and by the 9th section, post, p. 52, as to variances between it and the evidence adduced, and by expressly providing in s. 8 that complaints for an order need not be in writing unless required by the particular act of parliament. The information or complaint need not be on oath in the first When on oath. instance, unless some particular act of parliament shall otherwise require (n), except in cases of informations, where the justice shall thereupon issue in the first instance a warrant under the 2nd section against the defendant, when the matter of such information must be substantiated (o) by the informant's oath or affirmation, or by some witness or witnesses on his behalf (s. 10); and also except where a summons has issued upon an information or complaint and not obeyed, and a warrant shall thereupon be issued, when the information must also be substantiated upon oath (s. 2). The oath on receiving an information or complaint is: "You, C. D. do swear that the contents of this your information [or Form. 'complaint'] signed by you, are true and correct to the best of your knowledge and belief. So help you God." Jews are sworn on the Old Testament; Mahometans on the Jews. Koran; and indeed all others, not Christians, should be sworn according to the form binding on their consciences (1 & 2 Vict. (1) It is questionable whether a written authority is here necessary from a party aggrieved. By Tarry v. Newman (15 Law J. Rep. (N. S) M. C. 160; 10 J. P. 678) any one might lay it for an injury to the property of another. (m) In cases where the particular statute requires the information to be "in writing," it should of course be so taken, and that requirement has been shown in the 3rd column of Chap. 2. (") In the 3rd column of Chap. 2, this requirement is shown, and it is to be regretted that in such a statute as the present the oath was not rendered unnecessary except where a warrant is intended to be granted. (0) The form of which is No. 2, post, p. 62, where the informant cannot depose to the fact himself; this is expressly required to be by another person by the 6 & 7 Will. 4, c. 65, s. 9 (tit. " Game," post), and is not affected by the 11 & 12 Vict. c. 43. |