chief; then the defendant or his legal representative will have a right to cross-examine him, upon which the complainant may re-examine; the whole of the evidence, so far as it has any relevancy, being carefully taken down by the clerk to the justices. Thus will each witness be dealt with until the complainant has conIcluded his case. Upon this, if there be any doubt as to whether he has succeeded in establishing a primâ facie case, the justices will deliberate; and if they come to the conclusion that none has been established, they will at once dismiss the complaint without calling upon the defendant for his defence. If, on the contrary, they are of opinion that such a case has been established, they will then proceed to hear the defendant; who, as before has been seen, has a right to address the Bench, either himself or by his counsel or attorney. Having so addressed them, he will either rely upon the insufficiency of the case as attempted to be established by the complainant, or he will attempt to answer it by positive testimony. In the latter case he will produce his witnesses and examine them in the order he deems best; and precisely the same rules will apply to the course of proceeding relative to his evidence as to that of the complainant. Should he have adduced evidence, the complainant may adduce additional evidence in reply; but, as has been shown, if the proceedings are governed by the 11 & 12 Viet. c. 43, neither party will have a right to address the Bench a second time; though, as has also been shown, such a rule does not apply where the proceedings are not governed by that statute (ante p. 55.)

Witness Refusing to be Sworn or Examined.]—If any of the witnesses unlawfully refuse to be examined, and the case be one within the operation of the 11 & 12 Vict. c. 43, ample coercive powers are conferred upon the justices. Thus, by section 7 it is enacted

That if on the appearance of such person so summoned before the said last-mentioned justice or justices, either in obedience to the said summons or

upon being brought before him or them by virtue of the said warrant, such person shall refuse to be examined upon oath or affirmation concerning the premises, or shall refuse to take such oath or affirmation, or having taken such oath or affirmation shall refuse to answer such questions concerning the premises as shall then be put to him without offering any just excuse for such refusal, any justice of the peace then present and having there jurisdiction, may, by warrant under his hand and seal, commit the person so refusing to the common gaol or house of correction for the county, riding, division, liberty, city, borough or place where such person so refusing shall then be, there to remain and be imprisoned for any term not exceeding seven days, unless he shall in the meantime consent to be examined and to answer concerning the premises.

The following is the form of commitment given by the statute:—

COMMITMENT OF A WITNESS FOR REFUSING TO BE SWORN OR TO GIVE EVIDENCE.

to wit. S

To W. T. constable of in the said (county) of
and to the keeper of the (House of Correction) at

Whereas information was laid (or complaint was made) before the undersigned (one) of Her Majesty's justices of the peace in and for the said (county) of for that (fc. as in the summons); and one

E. F., now appearing before me, such justice as aforesaid, on

at

and being required by me to make oath or affirmation as a witness in that behalf, hath refused so to do (or being now here duly sworn as a witness in the matter of the said information (or complaint) doth refuse to answer certain questions concerning the premises which are now here put to him) without offering any just excuse for such his refusal; these are therefore to command yon, the said constable, to take the said E. F. and him safely convey to the (House of Correction) at

aforesaid, and there deliver him to the said keeper thereof, together with this precept; and I do hereby command you the said keeper of the said (House of Correction) to receive the said E. F. into your custody in the said (House of Correction), and there imprison him for such his contempt for the space of days, unless he shall

in the meantime consent to be examined and to answer concerning the premises; and for your so doing this shall be your sufficient warrant.

When Justices have no Power to punish a Refractory Witness.]-It must here be observed, that if the proceedings be not within the provisions of the 11 & 12 Vict. c. 43, this power of dealing with a refractory witness cannot be exercised; and, therefore, in such a case, unless the particular statute provides for the contingency, the justices have no power to punish a person attending before them as a witness for refusing to be sworn or affirmed, or, having taken such oath or affirmation, for refusing to answer the questions put to him.

Power to adjourn Hearing.]-If, in the course of the hearing, any circumstances transpire which induce the justices to think that the ends of justice will be promoted by an adjournment of the hearing, they have ample powers to direct such an adjournment to take place. Section 16 of the 11 & 12 Vict. c. 43, points out the course to be adopted in such a case: (See ante p. 46.)

The Assertion of a Claim of Right.]-In the course of the hearing it may appear that the act complained of has been committed in the bonâ fide assertion of a claim of right; and when this is the case the jurisdiction of the justices, as a general rule, will cease, and they should dismiss the information, leaving the complaining party to such other remedies as the law may have provided. In acting, however, upon an assertion of right, the justices will consider not only whether the case be one in which from its nature a claim of right is at all admissible, or operates as a defence, but also whether or not it is made bonâ fide or is merely colourable; for if it be made in a case in which it clearly is not applicable, or does not amount, even if well founded, to a legal defence, or is merely colourable and without any reasonable foundation, they will disregard it and proceed with the case. When, therefore (at whatever stage of the proceedings), the claim of right may be set up, it will be the duty of the justices to enter into the case so

far only as to satisfy themselves that the claim is either substantial or unfounded; and in this investigation their object will alone be to ascertain that the claim is a reasonable one, not that it can be ultimately successfully maintained. The class of cases in which a claim of right can be set up is necessarily small, and for the most part, will be confined to informations for trespass and assault, which sometimes involve a question of title to property. Whenever, therefore, such a question is involved in the information, the justices should at once abstain from further proceeding and leave the parties to arrange their claims or adjust their rights by some other course of proceeding, it being a maxim of invariable application as regards summary proceedings before justices, that whenever the title to property is in question, the exercise of a summary jurisdiction by them is ousted: (Paley on Convictions, p. 57; Rex v. Wrottesley, 1 B. & Ad. 648; Reg. v. Dodson & ors. 9 A. & E. 704; Dale v. Pollard, 10 Q. B. 504; 16 L. J. Q. B. 322.)

Of Compromises by the Parties.]—In a great variety of cases, determinable upon summary conviction, it is lawful for the litigant parties at any stage of the proceedings before judgment to enter into a compromise, and so supersede the necessity of a judicial adjudication, and, indeed, in cases in which the bench think that such a compromise would best fulfil the objects of the inquiry, it is usual for them to suggest it to the parties. Whenever, therefore, such a case arises, and the recommendation of the magistrate is likely to be responded to, opportunity will be given to accomplish the object, either by a temporary delay in the proceedings or by an adjournment to a future day. As regards the class of cases wherein a compromise may take place, it would appear it may be lawfully effected in any case in which the public are not involved; or, in other words, all those cases which involve damages to an injured party, for which he may maintain an action, and all cases de

terminable upon summary conviction, provided they be not of a public nature. Thus, common assaults, disputes between master and servant or apprentice, trespasses and the like, in which the mischief is confined to the complainant and does not involve the interests of the public or compromise the public peace, may lawfully be compromised. Upon this point the leading and last authority is Kier v. Leeman, 6 Q.B. 308; 13 L.J. Q. B. 259; also argued and affirmed in the Exchequer Chamber, 9 Q. B. 577; 15 L. J. Q. B. 360. In the former case Lord Denman says:—

He shall probably be safe in laying it down that the law will permit a compromise of all offences, though made the subject of a criminal prosecution, for which offences the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But if the offence is of a public nature, no agreement can be valid that is framed on the consideration of stifling a prosecution for it. In the present instance the offence is not confined to personal injury, but is accompanied with riot and obstruction of a public officer in the execution of his duty. These are matters of public concern, and therefore not legally the subject of a compromise.

So, too, in the last of these cases, in the Exchequer Chamber, Tindal, C. J., says :

We have no doubt that in all offences which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit. It is said, indeed, that in the case of an assault he may also undertake not to prosecute on behalf of the public. It may be so, but we are not disposed to extend this any further. In the case before us, the offence is an assault coupled with a riot and the obstruction of a public officer; no case has said that it is lawful to compromise such an offence.

The justices have no power to compel the parties to arrange the dispute; and if, therefore, they decline to compromise, the case must be proceeded with. If, however, an arrangement is effected, the complaint will