Page images
PDF
EPUB
[ocr errors]

the county aforesaid, labourer, who, as well for our Sovereign Lady the Queen (or for the poor of the parish of in the said county, or as the statute may direct) as for himself, doth prosecute in this behalf personally, cometh before me the undersigned, one of Her Majesty's justices of the peace acting in and for the said county, and, as well for our said Lady the Queen (or for the poor of the said parish, or as the case may be) as for himself, informeth me that C. D., late of the parish of in the county aforesaid, labourer, within the space of six calendar months (or whatever time is limited by statute) now last past, to wit, on the day of in the year aforesaid, at the parish of

in

the county aforesaid (here state the facts and circumstances constituting the offence, as defined by the statute or statutes creating it), contrary to the form of the statute (or statutes) in such case made and provided, whereby and by force of the statute (or statutes) in such case made and provided, the said C. D. hath forfeited for his said offence the sum of Wherefore the said A. B., who sueth as aforesaid, prayeth the consideration of me the said justice in the premises, and that the said C. D. may be convicted of the offence aforesaid; and that one moiety of the said forfeiture may be adjudged to our said Lady the Queen (as the case may be) and the other moiety thereof to the said A. B., according to the form of the statute (or statutes) in such case made and provided; and that the said C. D. may be summoned to appear before me, and answer the premises and his defence thereto.

(Informant's signature.)

Exhibited, &c.

(Justice's signature.)

D

CHAPTER III.

OF

THE MODE OF COMPELLING THE ATTENDANCE PARTIES-THE SUMMONS-WARRANT - SUBPOENA TO WITNESSES.

The Process to compel Appearance-Summons—Warrant.]-The first step to be taken, upon its being determined to proceed by way of summary conviction, is to obtain process for the appearance of the defendant. This process is of two kinds, namely, a summons and a warrant; and when the one or the other is to issue will depend much upon circumstances. In many statutes the process is pointed out; but where this is not so, the proceedings will be regulated by the 11 & 12 Vict. c. 43, which, by section 1, enacts, that in the cases in which a justice has jurisdiction, it shall be lawful for him or them

To issue his or their summons directed to such person, stating shortly the matter of such information or complaint, and requiring him to appear at a certain time and place before the same justice or justices, or before such other justice or justices of the same county, riding, division, liberty, city, borough, or place as shall then be there, to answer to the said information or complaint, and to be further dealt with according to law.

The Warrant.]-Such is the provision with reference to the issuing in the first instance of a summons. But it may be lawful and advisable to issue a warrant in preference to a summons; and, in such case, the same statute, by section 2, enacts

That upon such information being laid as aforesaid for any offence punishable on conviction, the justice or justices before whom such infor

mation shall have been laid, may, if he or they shall think fit, upon oath or affirmation being made before him or them, substantiating the matter of such information to his or their satisfaction, instead of issuing such summons as aforesaid, issue, in the first instance, his or their warrant for apprehending the person against whom such information shall have been so laid, and bringing him before the same justice or justices, or before some other justice or justices of the peace in and for the same county, riding, division, liberty, city, borough, or place, to answer to the said information, and to be further dealt with according to law.

Which Process to be used in Cases not within the 11 & 12 Vict. c. 43.]-As regards which of these two processes is to be used, regard must be had to whether the proceedings be governed or not by the 11 & 12 Vict. c. 43. If they are not, the law may be taken to be this: In all cases where justices are not expressly authorized to issue a warrant in the first instance, and where the offence does not involve a breach of the peace, the proper course is to issue a summons; and, indeed, where the offence is not deposed to upon oath, a summons is the only process. In many cases in which a justice is called upon to act, the statute expressly gives him a power to issue his warrant in the first instance; but even in such cases (unless the direction be imperative) it will be a matter of discretion with him whether or not he will in the first instance issue his summons merely. If, however, the statute is altogether silent upon the subject, a summons should be the only process in the first instance, and a warrant, even in those cases in which it may lawfully issue, should always be founded upon a deposition upon oath.

Which Process to be used in Cases within the 11 & 12 Vict. c. 43.]- The powers of justices, however, in cases within the 11 & 12 Vict. c. 43, are more extensive, for by that statute (sect. 2) a justice may, issue his warrant in the first instance, upon an information being laid for any offence punishable upon summary conviction; but in that case also, the matter of such information must be substantiated to his satisfaction.

Application for a Summons.]-If, therefore, the case is one in which it is not thought necessary to issue a warrant in the first instance, or in which a warrant cannot be so issued, the first step will be to apply to a justice for a summons. It may or may not be necessary to lay a written information; if the statute does not require it, it is seldom required by the magistrate, and in no case, if a summons only is to issue, is the information required to be substantiated upon oath, or unless required by some particular act of Parliament.

Form of Summons.]-Upon hearing a statement of facts, the justice will, if a primâ facie case be stated, direct his summons to issue. If the case be within the 11 & 12 Vict. c. 43, very explicit directions are given as to this process. If, however, it be not within that statute, then the following directions should be carefully observed. In the latter case, two forms of summonses have been in use; one directed to the defendant himself, and the other, by way of precept, to the constable; but in either form (and they may be used indifferently), it should name a day and time for the defendant's appearance, and this at a convenient period after the service: (R. v. Mallinson, 2 Burr. 679; 1 Stra. 261); care being taken, that if the statute has any special provisions as to the time of service, they be strictly complied with. The summons should also name the place at which the defendant is to appear (R. v. Simpson, 1 Stra. 46), and should not bear date on a day earlier than the date of the information: (R. v. Kent, 2 Ld. Raym. 1546.) It should set forth shortly the nature of the offence, and should be signed by the justice by whom it is granted. Where the statute authorizes a justice to summon a party before him without adding "or any other justice," only such justice has authority to hear the case; and it will, therefore, be important that the summons should be issued by the same justice as the one who will hear the case: (Jones v. Gurdon, 2 Q. B. 600; 11 L. J. 45 M.C.; Reg. v. Griffin, 15 L. J. 120 M. C.)

For all cases within the 11 & 12 Vict. c. 43, a form of summons is given, and inasmuch as this contains all the requisites for cases, whether within this statute or not, it is advisable it should be universally adopted. The form is as follows:

SUMMONS TO THE DEFENDANT UPON AN INFORMATION OR

to wit.

[blocks in formation]

Whereas information hath this day been laid (or complaint hath this day been made) before the undersigned (one) of Her Majesty's justices of the peace in and for the said (county) of

; for that you (here state shortly the matter of the information or complaint): These are, therefore, to command you in Her Majesty's name to be and appear on before such justices of

at

o'clock in the forenoon at

the peace for the said county as may then be there, to answer to the said information (or complaint), and to be further dealt with according to law.

Given under my hand and seal this

in the year of our Lord,

at

day of

in the (county) aforesaid. J. S. [L. S.]

The information, when reduced to writing, should always be carefully read over in the presence of the defendant.

Service of the Summons.]—In cases not within the 11 & 12 Vict. c. 43, the service of the summons should be personal, unless specially dispensed with: (R. v. Hall, 6 D. & R. 14; R. v. Simpson, 12 Mod. 345; Mason v. Barker, 1 Car. & Kir. 307, 100 n.)

In cases, however, which are within this statute, the mode of service is pointed out by section 1, which

enacts

That every such summons shall be served by a constable or other peace officer or other person to whom the same shall be delivered, upon the person to whom it is so directed, by delivering the same to the party personally, or by leaving the same with some person for him at his last or most usual place of abode.

The summons being thus obtained, the party com

« EelmineJätka »