CHAPTER IV.

THE APPEARANCE AND NON-APPEARANCE OF PARTIES OR THEIR WITNESSES-ADJOURNMENTS, ETC.

Preparing for the Hearing.]—The summons or warrant having issued, it will behove the complainant or informant to prepare himself for the hearing of the case at the time appointed; and herein it will be desirable that every attention should be paid to the getting up of the facts, since a failure at the hearing may not only be conclusive of the question, but may involve the parties in costs and expenses of serious amount.

Witnesses, Service of Summons upon-Tender of Expenses.]-It has before been seen in what way the attendance of witnesses may be procured-namely, either by summons or warrant, as circumstances may require. If there be any reason to fear that the witness will not voluntarily attend, and a summons is obtained for his appearance, it will be advisable that the complainant himself, or his attorney, should see to its being duly served. This service should be a reasonable time before the hearing; and, in order to bring him into contempt for not attending, a reasonable sum should be paid or tendered to him for his costs and expenses. What is a reasonable sum will depend greatly upon the condition in life of the witness, and the distance he has to come to give his evidence. No general or fixed rule can be laid down upon the subject, it being very much in the discretion of the justices. It would seem, however, that the same scale of allowance that is fixed on preliminary investigations as to indictable offences, would be reasonable in these cases.

The 7th section of the 11 & 12 Vict. c. 43, has directed how a summons for a witness may be served -namely, either personally or by leaving it for him with some person at his last or most usual place of abode. In serving such a summons, therefore, when it is not delivered personally to the witness, great care should be taken to ascertain that it is delivered really at his last or most usual place of abode, and the attention of the party in such a case should be especially directed to the importance of delivering it to the witness at the earliest moment; and it should seem, that in order to bring the party into contempt for not appearing when the summons has merely been left as aforesaid, the tender of a sum for costs and expenses should still be made. In cases not within the foregoing statute, and not provided for by the particular statute regulating the proceedings, the only mode, as has been shown (ante page 31), of obtaining the presence of a witness is by a crown-office subpoena, the penalty for a disobedience to which is an attachment from the Court of Queen's Bench on a rule to show cause. In cases within the 11 & 12 Vict., the provisions as to witnesses are equally applicable to defendants.

Warrant against a Witness.]—When a warrant issues in the first instance, as it may for either the complainant or the defendant (ante page 30), it must be executed by a constable or other peace officer.

Having the assistance of Counsel and Attorney.]-As the parties have a right, upon the hearing of all cases within the 11 & 12 Vict. c. 43, to the assistance of counsel and attorney; and as such assistance ought in no case, whether within that act or not, to be denied them, it will be a subject deserving of great consideration whether or not such assistance should be secured. This is a matter entirely for the discretion of the parties themselves, and it is sufficient here merely to indicate the existence of such a right.

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Of compromising Information-Obtaining a Copy of Information.]-Upon the defendant being summoned, it will be for him to decide upon the course he will take. The case may probably be of that class which permits of a compromise between the parties (of which cases occasion will hereafter arise to speak); and if so, may be advisable to endeavour to effect an arrangement without going into court. If, however, the case is one which must be heard by the justices, or one which the parties desire should be so heard, and be of a technical, unusual, or difficult nature, it will be desirable to apply to the clerk to the justices for a copy of the information or complaint, should any have been taken in writing, which ought always to be supplied upon payment of the appointed fee for the same.

Parties to be in Attendance when Case called on.]— On the day and at the time and place appointed for the hearing, it is the duty of the contending parties to be present, and to continue in attendance until the case is called, or otherwise disposed of.

Court of Petty-sessions, when a Public Court.]—The Court of Petty-sessions, when sitting for the purpose of hearing any complaint or information to be dealt with summarily, is an open court of justice, to which all Her Majesty's subjects have a right of access if there be accommodation for them and they behave themselves orderly and with propriety. Upon this subject, Mr. Justice Bayley, in Daubney v. Cooper, 10 B. & C. 240, observed :

The ground upon which our present opinion is formed is, that the magistrate was proceeding upon a summary conviction, and therefore, exercising a judicial authority. He was, as it were, a court of justice for that purpose, and we are all of opinion that it is one of the essential qualities of a court of justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose-provided they do not interrupt the proceedings, and provided there is no specific reason why

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they should be removed-have a right to be present for the purpose of hearing what is going on.

But under the 11 & 12 Vict. c. 43, there is an express enactment with reference to proceedings within its provisions, that the room or place in which such justice or justices shall sit 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.

Non-appearance of both Parties—Non-appearance of Complainant.]-Upon the day appointed for the hearing, the information or complaint will be called in its order, and according to the practice established by the justices for the convenient discharge of business. Should neither party appear, the justices will of course dismiss the complaint. Should the defendant appear and not the complainant, the absent party should be duly called by some authorized officer, and if he make no answer, and no one appear for him, the proceedings should be likewise dismissed. The 13th section of the 11 & 12 Vict. c. 43, directs the course of proceeding in such a case, and enacts

That 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, 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 as he or they shall think fit.

If, therefore, the complainant does not personally appear, nor appear by his counsel or attorney, the justices may dismiss the complaint, unless for some reason they may think it desirable to adjourn the hearing. This latter course, it would seem, they may adopt, notwithstanding the complainant appears neither personally

nor by his counsel or attorney; and cases may unquestionably arise in which it will be desirable for them to do so; remembering, however, that the interests of the defendant are concerned in such a course, and that a postponement may be productive to him of the most serious inconvenience and loss.

Appearance of Complainant-Non-appearance of Defendant Course of Proceedings.]—If the complainant attend, and not the defendant, then one of several courses may be adopted. The defendant possibly may send an excuse for his non-attendance, alleging illness, attendance elsewhere in the discharge of some public duty, or some other excuse of a cogent character. In such a case, if the justices are satisfied that the excuse is bonâ fide, and not made for any sinister purpose, and that the ends of justice do not imperatively require them to proceed at once, they will probably adjourn the hearing to another day, directing notice of the adjournment or a fresh summons to be served upon the defendant, or, indeed, without any positive cause, if they can gather from the circumstances that the defendant's absence is accidental or unavoidable, and with no view to defeat the ends of justice, and that his appearance will be insured by an adjournment, they will do well to adjourn, bearing always in mind, that no case is so satisfactorily dealt with as when both of the litigant parties are before the court.

If, however, the defendant do not appear, and no excuse is offered or reasonably suggested for his absence, and the justices think the circumstances justify their proceeding, they may, in any case within the 11 & 12 Vict. c. 43, adopt one of two coursesnamely, that of compelling the defendant's attendance by a warrant of apprehension, or that of proceeding to hear the case ex parte. Which of these two courses they will adopt is entirely in their discretion.

Warrant of Apprehension on non-appearance of Defendant.]—If the justices decide upon issuing a war