The Magisterial Formulist. INTRODUCTION. PREVIOUS to the passing of the acts, known as Jervis's Acts (a), Preliminary in the session of 1848, for facilitating the performance of the observations. duties of justices of the peace out of sessions with respect to summary convictions and orders, and indictable offences, which give in their schedules general outlines or forms in those matters for the use of magistrates, there was great diversity in the frame and features of such instruments, then in use, and in the various Books of Practice upon the subject, and which was greatly increased "by the omission of the legisla ture to make proper general regulations, by the dissimilarity of the forms and directions which they did provide in particular cases (b), and by many cases being left without any such pro (a) 11 & 12 Vict. c. 43 (Summary Convictions and Orders); 11 & 12 Vict. c. 42 (Indictable Offences), both passed on the 14th of August, 1848, but taking effect from the 2nd of October, 1848. (b) Previous to the 3 Geo. 4, c. 23 (totally repealed by s. 36 of 11 & 12 Vict. c. 43), convictions were drawn up with great particularity, setting forth all the proceedings-the evidence, examination and cross-examination of witnesses for the defendant as well as the prosecutor or complainant; the 3 Geo. 4, c. 23, gave a general form of conviction applicable to all cases where the statute creating the offence gave no particular form; but still this general form was unnecessarily prolix, as setting out the appearance or nonappearance of the defendant, the evidence, &c., and in modern legislation it was customary to give a form of conviction omitting the evidence altogether and otherwise shortening it in many points; but in doing this they went to another extreme, namely, omitting to state in the adjudication for what length of time the defendant was to be imprisoned in case he did not pay the penalty, or what was to be done in that event, while some went the length of omitting an adjudication altogether. (See note of Archbold to Jervis's Acts, p. 149, 2nd edit.) Some also were unnecessarily long in the application of the penalty, &c. (vide 7 & 8 Geo. 4, cc. 29, 30). The comprehensive body of forms of convictions, orders, &c. given in Jervis's Acts, are admirably practical as general outlines, and contain all that is necessary to be shown and stated in the simplest cases-the variations necessary in other cases are shown in the following collection. B Divisions of this introduction. visions at all (c);" but now, from the general nature and application of the statutes referred to, the outlines given in them can, with such variations and additions as are necessary to be made to comply with the particular and numerous requirements of the statute or statutes in certain matters and the exigencies of the case, be adapted (and which is the especial purpose of the present collection) practically to almost every variety of form required in the discharge of the manifold duties of justices of the peace out of sessions, thereby securing that great desideratum in legal proceedings of this nature-uniformity in forms, as well as in practice. For the sake of simplicity, we will divide these Introductory Remarks into Three Divisions:: 1. On the Provisions in Jervis's Acts as to Forms. 2. On the Arrangement of this Collection of Precedents. 1. On the Pro- Acts as to What 11 & 12 to. 1. ON THE PROVISIONS IN JERVIS'S ACTS AS TO FORMS. Although the acts alluded to do not render it imperative to use the several forms given in the schedules, yet, inasmuch as it is provided by the 32nd section of the 11 & 12 Vict. c. 43, and the 28th section of the 11 & 12 Vict. c. 42, that those forms, or forms to the same or the like effect, shall be deemed good, valid and sufficient in law, and all other published forms being so dissimilar in their frame and features (d) that they cannot with safety be now used in practice, it will be more prudent, and has become the practice in petty sessions, to adopt. those which are thus legalized in all matters, using the outlines given as the framework on which to erect others of special or rare occurrence, or in special sessions matters. Jervis's Act (11 & 12 Vict. c. 43), relating to summary convictions and orders, applies, with some exceptions hereafter (c) "The Bench Formulist," published by Knight, 1846, p. 3. (d) Vide note (b) for instance, and also Bench Formulist, pp. 12, 21, 23, 27, 28, 67, 73, 125, 168, 197, 209, wherein the order and relation of the several parts of these instruments are inverted in the case of warrants and other forms directed to persons to execute or obey, they commencing with a command telling them what they are to do, and then explaining the cause. Why not adopt the order of the events in all cases and circumstances, as is done in Jervis's Acts? noticed, to "all cases where an information shall be laid before 66 one or more of her Majesty's justices of the peace for any "county, riding, division, liberty, city, borough or place within. "England or Wales, that any person has committed or is sus"pected to have committed any offence or act within the juris"diction 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 other"wise 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" (s. 1), and which section, after providing for the issue of the summons 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 justice is by law to be made ex parte (e);" but the 35th section excludes from its operation several matters: it Exception enacts, "That nothing in this act shall extend or be construed clause. "to extend To any warrant or order for the removal of any poor person who is Nor to any information or complaint or other proceeding under or (e) Mr. Archbold has. in a second edition of Jervis's Acts, note, p. 136, given his opinion as to the applicability of the 11 & 12 Vict. c. 43, to certain specified cases, and so have the editors of "The Magistrate." These will be noticed in their proper places in this collection. With respect to the orders referred to in the proviso which can be made ex parte they are the following :-orders of removal of paupers and lunatics, (excepted however from the operation of the act by s. 35); 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). (ƒ) 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 this collection, and the " Synopsis." (g) 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.; also 12 & 13 Vict. c. 103. (h) The following are a few of the statutes having reference hereto, several What 11 & 12 Vict. c. 42 (in dictable offences) applies to. Special provisions applicable to the forms as to the place of justices exercising jurisdic tion; relative to summary convictions and orders and indictable offences. Nor shall any thing 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 warrants 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 nonpayment of the same (i); 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 (j).” As to the other of Jervis's Acts (11 & 12 Vict. c. 42), it applies, without exception, to "all cases where a charge or complaint shall be made before any one or more of her Majesty's "justices of the peace for any county, riding, division, liberty, "city, borough or place within England or Wales, that any person has committed or is suspected to have committed any "treason, felony, or indictable misdemeanor, or other indict"able offence whatsoever" (s. 1). In addition to the above provisions there are the following special ones, applicable to the use of the adapted forms as to the place where justices may exercise their jurisdiction in summary convictions and orders as well as in indictable offences. In the 11 & 12 Vict. c. 42 (relating to indictable offences) there are the following, but those contained in sections 5, 6 and 7 of that statute are by the 6th section of the 11 & 12 Vict. c. 43, to apply to summary convictions and orders-those provisions are: 1. Where a justice of the peace for any county, riding, division, liberty, city, borough or place, shall be also justice of the peace for a county, riding, division, liberty, city, borough, or place next adjoining thereto or surrounded thereby, it shall and may of which are referred to in Chap. 3 of Part I. and Chap. 2 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, and 12 & 13 Vict. c. 40 (Excise); and 12 & 13 Vict. cc. 29 and 90 (Customs). (i) 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 or referred to in Part III. of this collection and of the " 'Synopsis." (j) 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. be lawful for such justice of the peace to act as such for the one county, &c. whilst he is residing or happens to be in the other such county, &c. in all matters and things herein before or hereafter in this act mentioned (11 & 12 Vict. c. 42, s. 5). 2. Any justice or justices of the peace acting for any county at large, or for any riding or division of such county, may act as such at any place within any city, town or other precinct, being a county of itself, or otherwise having exclusive jurisdiction, and situated within, surrounded by, or adjoining to any such county, riding or division respectively (id. s. 6); but a proviso thereto states that nothing in this act contained shall extend to give power to the justices of the peace for any county, riding or division, not being also justices for such city, town or other precinct, or not having authority as justices of the peace therein, or any constable or other officer acting under them, to act or intermeddle in any matters or things arising within any such city, town or precinct, in any manner whatso ever. 3. Section 7 relates to detached parts of other counties; and, after reciting that" doubts have arisen whether the powers given to justices by the 2 & 3 Vict. c. 82 (k) are applicable to cases of summary jurisdiction, and to acts merely ministerial," enacts "that all the acts of any justice or justices, and of any constable or officer in obedience thereto, shall be as good in relation to any detached part of any county which is surrounded, in whole or in part, by the county for which such justice or justices acts or act, as if the same were to all intents and purposes part of the said county." The following are not in Jervis's Acts, but in other authorities not before noticed: 4. A justice of one county, &c. must act within it (Paley, Conv. 17; 2 Arch. J. P. 30); and the matter in question must have arisen in his county, but residence in the county for which he is then acting is not necessary to give jurisdiction. 6. For offences committed by paupers in a union workhouse, the 7 & 8 Vict. c. 101, s 57, authorizes a justice of the county (k) The 2 & 3 Vict. c. 82, s. 1, after reciting that the administration of justice was hindered by the distance of divers detached parts of counties in England and Wales from the body of the counties to which they severally belong, enacted, "That it shall be lawful for any justice or justices of the peace acting for any county to act as a justice or justices of the peace in all things whatsoever concerning or in anywise relating to any detached part of any other county which is surrounded, in whole or in part, by the county for which such justice or justices acts or act. Vide also 2 & 3 Will. 4, c. 64, s. 26, and Schedule M.; and 7 & 8 Vict. c. 61, s. 1. |