and the room or place in which such justice or justices shall sit Open court. to hear and try any such 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 (b); and the party against whom such complaint is made Either party or information laid shall be admitted to make his full answer allowed to plead by attorney. and defence thereto, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf; and every complainant or informant in any such case shall be at liberty to conduct such complaint or information respectively and to have the witnesses examined and cross-examined by counsel or attorney on his behalf (s. 12) (c); but if the defendant is represented by attorney he cannot himself be heard. The 7 & 8 Vict. c. 101, s. 68, allows an officer of the guardians of an union to conduct proceedings on their behalf, although he is not an attorney. matter arose. In general, the hearing and adjudication upon the information Where offence or complaint must take place in the county, &c. where the committed, or offence was committed or the matter of complaint arose, and the justice or justices must be of the same jurisdiction as such county, &c.; but their jurisdiction in this respect as well as the exemptions to the general rule is fully noticed in the Introduction, ante, p. 5, &c., to which the reader must refer in particular cases. Before the case is entered into, either party may apply to Ordering withave the witnesses ordered out of court, which request should nesses out. always be complied with. It is unusual, however, to include in this order medical witnesses, or those who are merely to speak to mere matters of form or character, and the attornies for the respective parties are always excepted. Under such circumstances it will be of importance to ascertain that the witnesses of the opposite party strictly comply with this order, since, should they violate it, their testimony cannot on that account be rejected (Cook v. Nethercote, 6 C. & P. 741; Chandler v. Horne, 2 M. & Rob. 423), nor have the magistrates any summary power of punishing them for their disobe (b) It will be observed that this is not the case on the preliminary inquiry in indictable offences (11 & 12 Vict. c. 42, s. 19). The parties must conduct themselves orderly, otherwise they should be ejected, but there is no authority for the justices to commit for contempt (S. Stone's Manual, 237, 238). (c) By the 6 & 7 Will. 4, c. 114, s. 2, only the defendant was entitled to the assistance of an attorney, and it was discretionary with the justices to allow such assistance to a complainant: an informer was obliged to prosecute in person (18 Eliz. c. 5, s. 1). Conviction on view. Death of informer before hearing. Where joint offenders. Where several offenders. When conviction to take place. dience (Saund. Pr. Sum. Conv. 38; and see Stone's Manual, 238). In those cases in which a conviction may take place on the view of a justice, the defendant must nevertheless have an opportunity of making a defence (see Reg. v. Smith, 9 J. P. 7), and a summons in the usual form should issue to him. In case of the death of the informer before the hearing, the information is, it is conceived, at an end, and cannot be proceeded with by the personal representatives. There is no one before the court against whom the justices could issue a warrant of distress for costs under 11 & 12 Vict. c. 43, s. 18, or the particular statute, if the defendant should be acquitted; nor have the justices any power, it is apprehended, to inquire who are the representatives, or to award the penalty payable to an informer, to his executors or administrators. The information does not affect any estate or interest which representatives receive under the will, or by law (8 J. P. 638; Stone's Manual, 236, 4th ed.). Where proceedings are taken against two or more persons for an offence which is joint, and by which one penalty only is incurred, and some only have been apprehended or duly summoned at the time of the hearing, the hearing may either be adjourned till the others are brought up (if those who are present consent to this course), or if the hearing take place and a conviction be made, the absent parties cannot be afterwards convicted, neither can the omission of a particeps criminis be taken advantage of by those who are convicted (Stone's Manual, 235, 236). Where several persons are charged with an offence which is several, they will be heard at the same time, if they appear, and they cannot claim to have their cases heard separately. If all do not appear, the proceeding can be ex parte, as above stated, with reference to those who are absent. If the proceedings were commenced in due time by laying the information, the hearing and judgment may take place at any time beyond the period allowed (R. v. Barrett, 1 Salk. 383; Paley, 41); but if the making the conviction must be within a limited time, it is not enough that the information was laid within that period, but the conviction made after is void (R. v. Tolley, 3 East, 467); and no adjournment, even by consent of all parties, prolongs the justice's authority over the case (R. v. Bellamy, 1 B. & C. 500). 2. Of Adjournments (d). These may take place under several different circumstances, Several causes which are:of adjournment. 1. By s. 16 (as will be seen, ante, p. 68) before or during the hear- 2. By s. 13 (as will be seen, ante, p. 69) where defendant does not 3. Where upon the hearing any variance (ƒ) between the information (s. 9) or complaint or summons (s. 1), or a warrant of apprehension (s. 3), and the evidence adduced on the part of the complainant or informant, and such variance shall appear to the justice or justices present to have deceived or misled the party, the justice or justices, upon such terms (e) as he or they shall think fit, may adjourn the hearing (ss. 1, 3, 9), in which case the defendant is committed or bailed (ss. 3, 9, ante, p. 68). For the mode of estreating the recognizances, see ante, p. 69, and note (i), p. 70 (g). 3. Appearance of Complainant, and Defendant not appearing. If at the day and place appointed in and by the summons Ex parte hearaforesaid for hearing and determining such complaint or in- ing. (d) There is no limit of time placed to any of these adjournments; under the 11 & 12 Vict. c. 42, s. 21, a remand is not to exceed eight clear days. (e) This is presumed to refer to costs, i. e. upon the complainant or informant paying the costs attending such adjournment, and upon that supposition he would be liable to pay the costs of the defendant's detention or committal, or of the fee for the recognizance; but how could they be recovered from the complainant or informant where the defendant is convicted? Those costs would not strictly form part of the costs of the conviction; the sections (18, 26) only relating to costs upon dismissal and conviction. (f) See s. 9, ante, p. 52, for what is a material variance. (g) Mr. Archbold, in his edition of Jervis's Acts, in a note to the 3rd, 9th and 13th sections, says, that if the defendant do not appear, the recognizance and the indorsement is sent to the clerk of the peace to be estreated, and the justice, or one of them, may issue a warrant for his apprehension. Dismissal or adjournment. formation the defendant against whom the same shall have been made or laid shall not appear when called, the constable or other person who shall have served him with the summons in that behalf shall then declare upon oath in what manner he served the said summons (h); and if it appear to the satisfaction of any justice or justices that he duly served (i) the said summons, in that case such justice or justices may proceed to hear and determine the case in the absence of such defendant, or the said justice or justices, upon the nonappearance of such defendant as aforesaid, may, if he or they think fit, issue his or their warrant (j) in manner hereinbefore directed, and shall adjourn the hearing of the said complaint or information until the said defendant shall be apprehended (s. 13). 4. Appearance of Defendant, and Complainant not appearing. If upon the day and at the place so appointed as aforesaid such defendant shall attend voluntarily in obedience to the summons in that behalf served upon him, or shall be brought before the said justice or justices by virtue of any warrant, then, if the complainant or informant, having had such notice as aforesaid (k), do not appear by himself, his counsel or attorney, the said justice or justices shall dismiss such complaint or information, unless for some reason he or they shall think proper to adjourn the hearing of the same unto some other day, upon such terms (1) as he or they shall think fit (s. 13). If the justices dismiss the complaint or information, as it is not upon the merits, and no order should be made at the request of the defendant (as noticed p. 81), it seems to be in the nature of a nonsuit in a civil cause, and the complaint or information may be brought again (13 J. P. 498). In case of an adjournment the defendant is committed or bailed (m) (see ante, pp. 68, 69). (h) The form of Deposition is (A a), ante, p. 66. (i) See sects. 1 and 2, ante, pp. 64, 65, as to the manner of service; it would be advisable, where personal service has not been effected, that some proof should be given of the summons having come to the defendant's knowledge a reasonable time before the day of hearing. (j) The form (B) will be found at p. 67, ante. (k) Applicable where defendant is apprehended before and the hearing is adjourned, and notice is given to the complainant or informant; see ante, note (h), p. 69. (1) See note (e), p. 79. (m) Where the defendant is not brought up on a warrant, he ought to be discharged upon his own recognizance alone. missal. In case of a dismissal it shall be lawful for such justice or Order of disjustices, if he or they shall think fit, being required so to do, to make an order of dismissal of the same (L), and shall give the defendant in that behalf a certificate thereof (M), which said certificate afterwards, upon being produced, without further proof, shall be a bar to any subsequent information or complaint for the same matters respectively against the same party (s. 14). The justice or justices, in his or their discretion, in and by his Costs on disor their order of dismissal, may award and order that the missal. prosecutor or complainant respectively shall pay to the defendant such costs as to such justice or justices shall seem just and reasonable; to be recovered by distress (Form (Q1), post, 82) and sale of the goods and chattels of the party (which may be backed, Form (N 3), post, 83, if required to be executed in another jurisdiction), and in default of such distress by imprisonment (Form (Q 2), post, 84), with or without hard labour, for any time not exceeding one calendar month, unless such costs (and the costs of distress and conveyance to gaol (s. 26)) shall be sooner paid (s. 18). the costs be tween the No such order of dismissal can be made, and each party to Cannot divide pay his own costs, or half, as was once the practice; for a dismissal without mention of costs would be tantamount to such parties. an order, the defendant paying his own costs of attorney, witnesses, &c., and the prosecutor or complainant paying the justices clerk's fees, constable's allowance for service of snmmons, &c., and his witnesses. The costs to be paid by the complainant to the defendant, if ordered, would be, the expenses of defendant's witnesses, his attorney, if any, and the justices clerk's fees for summonses to witnesses, and order and certificate of dismissal; but not the constable's or clerk's fees for summons and service on defendant, for they would be the costs incurred by the complainant, and, if not paid, would be recoverable by the respective parties in the County Court (vide Introduction, ante p. 41). A copy of the minute of this order of dismissal must be Minute of order served on the prosecutor or complainant before the payment of to be served. the costs is enforced (s. 17). (Vide Form No. 33, Oke's Magis. Form. 35). The prosecutor or complainant may be committed forthwith Complainant may be comfor the costs, if he has no goods to levy on, or a distress would mitted forthbe ruinous (vide s. 19, post), for this order of dismissal with with. costs, requiring "the payment of a sum of money," seems to G |