complainants in

be deemed com

and examined

45. Every prosecutor of any such information, not Prosecutors and having any pecuniary interest in the result, and certain cases to every complainant in any such complaint as afore- petent witnesses said, whatever his interest may. be in the result of upon oath, de. the same, shall be a competent witness to support such information or complaint, and every witness at any such hearing as aforesaid shall be examined upon oath or affirmation, and the Justice or Justices before whom any such witness appears for the purpose of being so examined shall have full power and authority to administer to every such witness the usual oath or affirmation.

adjourn hearing

commit defend.

ant, or suffer

him to go at

46. Before or during the hearing of any such Justice may information or complaint, any one Justice, or the of any case and Justices present, may in their discretion adjourn the hearing of the same to a certain time and place large, &c. to be then appointed and stated in the presence and hearing of the party or parties, or of their respective attorneys or agents then present; and in the meantime the said Justice or Justices may suffer the defendant to go at large, or may commit (D) him to the common gaol, or house of correction, or other prison, lock-up or other place of security, within the, territorial division for which such Justice or Justices are then acting, or to such other safe custody as the said Justice or Justices think fit; or may discharge such defendant, upon his recognizance (E) with or without sureties, at the discretion of such Justice or Justices, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned.*

Should the defendant not appear at the hearing, pursuant to the summons, and any doubt exists in the minds of the Justices,-after examining on oath the constable who served the summons, that it was duly served a reasonable time before the day appointed for the hearing, or if the non-attendance of the defendant arises from or is occasioned by unavoidable accident, the Justice should, instead of hearing the case ex parte, adjourn the hearing of the complaint or information for a reasonable period. Notice of such adjournment should be given to the defendant, or a fresh summons served upon him. In case, however, the

If defendant or prosecutor ap pear, the case may be heard.

If the prosecutor does not appear,

47. If, at the time and place to which such hearing or further hearing has been adjourned, either or both of the parties do not appear, personally or by his or their counsel or attorneys respectively, before the said Justice or Justices, or such other Justice or Justices as may then be there, the Justice or Justices as may then be there present may proceed to such hearing or further hearing, as if such party or parties were present.

48. If the prosecutor or complainant do not apcase may be dis pear, the said Justice or Justices may dismiss the said information or complaint, with or without costs, as to such Justices seems fit.

missed.

If defendant

fails to reappear,

&c.

49. In all cases when a defendant is discharged upon his recognizance, as aforesaid, and does not afterwards appear at the time and place mentioned in such recognizance, the Justice or Justices who took the said recognizance, or any other Justice or Justices who may then be there present, having certified (F) on the back of the recognizance the nonappearance of such accused party, may (in Upper Canada) transmit such recognizance to the Clerk of the Peace for the territorial division in which such recognizance was taken, to be proceeded upon in like manner as other recognizances; and such certificate shall be deemed sufficient prima facie evidence of such non-appearance of the said defendant.

Justice should think fit, upon the defendant's non-appearance, to issue a warrant for his apprehension, the hearing of the complaint or information should be adjourned until the defendant is apprehended. The Justice may also adjourn the hearing of the case whenever there exists such a variance between the summons or warrant issued upon an information or complaint and the evidence adduced on the part of the informant or complainant, as would be calculated to have misled or deceived the defendant as to the charge made against him.

Should the defendant appear before the Justices either in person or by a friend, and request an adjournment upon any fair and reasonable ground, and agree to pay the extra expense occasioned thereby, it seems to be but consonant with justice that the Justices should in such cases exercise a liberal discretion, as they might prejudice a defendant's case by undue haste.

Should the Justice decide on committing the defendant during the adjournment, he will not be liable to an action, although it should eventually turn out that no offence has been committed, provided the commitment has been made bona fide and without malice.

tions and orders

dule, where no

is given in the

the offence.

50. In all cases of conviction, where no particular Form of convic form of conviction is given by the statute creating to be as in schethe offence or regulating the prosecution for the particular form same, and in all cases of conviction upon statutes Statute creating hitherto passed, whether any particular form of conviction has been therein given or not, the Justice or Justices who convict may draw up his or their conviction, on parchment or on paper, in such one of the forms of conviction (I 1, 3) as may be applicable to the case, or to the like effect.*

form is given, form in (K 1, 3) may be adopted.

51. In case an order be made, and no particular where no special form of order is given by the statute giving authority to make such order, and in all cases of orders made under the authority of any statutes hitherto passed, whether any particular form of order is therein given or not, the Justice or Justices by whom such order is made may draw up the same in such one of the forms of orders (K 1, 3,) as may be applicable to the case, or to the like effect.

served with copy

distress or com

mitment.

52. In all cases when, by an act of Parliament, Defendant to be authority is given to commit a person to prison, or of order, before to levy any sum upon his goods or chattels by distress, for not obeying an order of a Justice or Justices, the defendant shall be served with a copy of the minute of such order before any warrant of commitment or of distress is issued in that behalf; and such order or minute shall not form any part of such warrant of commitment or of distress.+

* See "Assaults" in index, and remarks upon convictions therefor. The formal record of the conviction or order is seldom drawn up at the time the decision is actually made against the defendant, but a minute or memorandum of the terms of the judgment or decision is entered by the Justice or presiding Justice upon the minutes of the proceedings, and the conviction or order itself is drawn up subsequently, in readiness to return to the Clerk of the Peace, to be by him filed among the records of the General or Quarter Sessions

of the Peace.

The penalty or sum of money ordered to be paid under the conviction or order, with the costs, must be paid by the defendant immediately, except orders for the payment of money under the Masters and Servants' Act, and there twenty-one days are allowed for the master to pay such wages: before the expira

Power to Justices 53. In all cases of summary conviction, or of

to award costs

with the fees

established by law to be taken.

not inconsistent orders made by a Justice or Justices of the Peace, the Justice or Justices making the same may in his or their discretion award and order, in and by such conviction or order, that the defendant shall pay to the prosecutor or complainant such costs as to the said Justice or Justices seem reasonable in that behalf and not inconsistent with the fees established by law to be taken on proceedings had by and before Justices of the Peace.

Costs may be awarded to de

the case is dis

missed.

54. In cases where such Justice or Justices, instead fendant, when of convicting or making an order, dismiss the information or complaint, he or they, in his or their discretion, may, in and by his or their order of dismissal, award and order that the prosecutor or complainant shall pay to the defendant such costs as to the said Justice or Justices seem reasonable and consistent with law.*

Costs so allowed shall be specified in conviction or order of dismissal

And may be recovered by distress.

55. The sums so allowed for costs shall in all cases be specified in the conviction or order, or order of dismissal; and the same shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to be paid in and by the conviction or order is to be recovered.

56. In cases where there is no such penalty or sum of money to be recovered as aforesaid, such

tion of such time no warrant can be enforced. Should the Bench be willing, under certain circumstances, to allow a reasonable time for the payment of the fine, or fine and costs, they can do so. Should no time be given by the Justice for the payment of the fine and costs, the defendant should be ordered to be taken into custody, and the warrant of distress, or, under the circumstances hereinafter provided, the warrant of commitment, forthwith made out.

*It has been before remarked that in pronouncing their judgment or decision, Justices should not only state the amount of the penalty, compensation, or sum of money awarded, but also the amount of costs, which should be previously ascertained and this is not only necessary where there is a conviction or order, but also where there is a dismissal of the information or complaint; because in the latter case the costs fall as a matter of course upon the prosecutor or complainant. It is requisite also that the costs should be specified and inserted, not only in the conviction or order, where such is made, but also in the order of dismissal, should the information or complaint be dismissed.

costs shall be recoverable by distress and sale of the goods and chattels of the party; and in default of such distress, by imprisonment, with or without hard labour, for any time not exceeding one month, unless the costs be sooner paid.

ces to issue war

in cases where a

alty, &c., has

57. Where a conviction adjudges a pecuniary pen- Powers to Justi alty or compensation to be paid, or where an order rant of distress requires the payment of a sum of money, and by pecuniary penthe statute authorizing such conviction or order the been adjudged. penalty, compensation, or sum of money is to be levied upon the goods and chattels of the defendant, by distress and sale thereof; and also in cases where, by the statute in that behalf, no mode of raising or levying such penalty, compensation or sum of money, or of enforcing the payment of the same, is stated or provided, the Justice, or any one of the Justices making such conviction or order, or any Justice of the Peace for the same Territorial Division, may issue his Warrant of Distress (N 1, 2) for the purpose of levying the same, which said Warrant of Distress shall be in writing, under the hand and seal of the Justice making the same.*

sufficient distress

58. If, after delivery of such Warrant of Distress Proceeding if to the constable or constables to whom the same has be not found. been directed to be executed, sufficient distress cannot be found within the limits of the jurisdiction of the Justice granting such warrant, then upon proof being made upon oath of the handwriting of the Justice granting such warrant before any Justice of any other territorial division, such Justice shall thereupon make an endorsement (N 3) on such warrant, signed with his hand, authorizing the execution

* If no goods can be found, or not a sufficient quantity whereupon to make the levy, the constable should attend before the Justice issuing such warrant to prove the fact, which is technically called " making the return of Nulla Bona." This is done by putting the constable upon his oath, and he there makes a short deposition to prove his attempt to make the levy, and that no sufficient goods can be found. (The form of which will be found under article "Return.")