on.

The party so summoned has a right to attend before the magistrates, and if the complainant offers no evidence in support of his charge, it ought to be dismissed (g). Where the plaintiff, having laid an information for an assault, took out a summons, which was served on the defendant, but afterwards, and before the day of hearing, the plaintiff by his agent gave notice to the defendant that the summons was withdrawn, and that he need not attend, and the plaintiff also gave notice to the magistrate's clerk that he would not attend; the defendant, however, attended, in obedience to the summons, and claimed to have the information dismissed, and a certificate of dismissal granted, although the plaintiff was absent. The magistrates having accordingly dismissed the complaint, and granted a certificate shewing these facts, it was held that such dismissal was a "hearing" of the case within the section (h), and that, therefore, the certificate was a bar to the action for the assault (¿).

CHAPTER XV.

APPEARANCE AND HEARING.

THE mode of compelling the appearance of a party, either by arrest under a warrant or otherwise, has already been discussed (a). What is sufficient attendance.] The appearance may be by the defendant personally, or by his agent on his behalf (b). If the defendant or his agent does not appear at the time and place mentioned in the summons, and no sufficient ground be shewn for an adjournment, the justice may proceed ex parte; or, if the plaintiff does not appear by himself or his agent, the magistrate may either dismiss the complaint or adjourn the hearing to a future day (c). The non-attendance, however, of the party does not authorize a judgment without a due examination of the facts

(g) Bradshaw v. Vaughton, 30 L. J. C. P. 93.

44.

(h) Vide 24 & 25 Vic., c. 100, s.

(i) Bradshaw v. Vaughton, sup.

(a) Vide ante, chap. 5; see 14 & 15 Vic. c. 93, s. 11.

(b) 14 & 15 Vic. c. 93, s. 20; see Bessel v. Wilson, 1 El. & Bl. 489-500. (c) 14 & 15 Vic. c. 93, s. 20.

upon oath, with the same formality as if he were present and made defence (d).

Adjournment.] The magistrate may also, before or during the hearing of the complaint, adjourn the further hearing to a certain time and place to be then appointed in the presence of the parties or their agents; and may either allow the defendant to go at large, or commit him, or bind him to appear (e). By the 14 & 15 Vic. c. 93, s. 20, a power of adjournment is expressly given; but even without that clause, a magistrate who has power to hear a case has also power to adjourn it from time to time (f).

If all the cases have not been disposed of, an entry of the adjournment, specifying the particular day to which the court stands adjourned, ought to be made in the order book, and, like all other orders, vouched by the signature of a magistrate (g).

Adjournment when J.P. does not attend.] If no justices shall be in attendance for one hour after the time appointed for the holding of any petty sessions, the clerk should adjourn the holding of the court and all the proceedings thereat to the next petty sessions day. He is to make an entry of such adjournment in the minute-book and post a notice thereof on the door of the court; and all persons summoned or under recognizance to attend at such adjourned sessions shall, without fresh summons or recognizance, be bound to attend on the day to which such adjournment shall have been made (h).

The hearing, by whom.] The complaint is to be heard by one or more justices, as the act directs on which the matter is framed. Under the Summary Jurisdiction Act, which embraces a large number of offences, any proceeding under that act may be determined by one justice, provided it be done in petty sessions; and under the Offences against the Person, Malicious Injuries, and Larceny Acts every offence made punishable on summary conviction in Ireland under those acts must be prosecuted before two J. P.'s or one metropolitan or stipendiary magistrate.

(d) 10 Mod. 381; see 14 & 15 Vic. c. 93, s. 20, cl. 2.

(e) Ib.

(f) R. v. Mayor of Clonmel, 9

Ir. C. L. R. 267.

(g) Lev. J's. Man. 189, 2nd ed. (h) 21 & 22 Vic. c. 100, s. 8, cl. 5.

Petty sessions to be held in court-house.] When a public courthouse is maintained by county presentment at any place fixed for holding petty sessions, they are to be held in the courthouse (i). The Petty Sessions Act directs that all cases of summary jurisdiction are to be heard in petty sessions, except cases of drunkenness, or vagrancy, or fraud in the sale of goods, or disputes as to sales in fairs or markets; but two justices may hear out of petty sessions any complaint when the offender is unable to give bail for his appearance at petty sessions (j).

Disputes in fairs and markets.] Express power is also given to justices by the 14 & 15 Vic. c. 92, s. 17, in any fair or market within the jurisdiction, to proceed at once upon the complaint of either party, and in their presence to hear and determine any dispute which shall arise between any buyer and seller relating to the terms of sale, delivery, price, or payment, for any article, matter, or thing which shall be exhibited for sale therein, provided it shall not be of greater value than five pounds; or to adjourn the hearing to the next petty sessions of the district; and it shall be lawful for such justice or the justices at such petty sessions, having examined into the complaint upon oath, to make an award according to the merits of the case, which is to be in writing, and to have the like force and effect as any order made at petty sessions. This award should shew that the purchase had been made in a fair or market (k); and the magistrate ought not, as it appears, to award anything to be done in specie, as he has no means of enforcing it, but he may award a sum of money up to five

(i) 14 & 15 Vic. c. 93, s. 8; see as to grand jury presenting for petty sessions court, ib. A magistrate attending petty sessions in the discharge of his duty is privileged from arrest; Clendenning v. Browne, 3 Ir. C.L.R. 115; Dubois v. Wyse, 5 Ir. C.L.R. 300. If a person cannot claim his privilege eundo et morando, he will not be entitled to it redeundo; see ex parte Cobbett, 26 L.J.Q.B. 293. A person attending before a magistrate as a witness upon a charge of felony, after a remand is privileged from

arrest in civil process, eundo, morando, et redeundo, though he was not under recognizance or summons to appear. Montague v. Harrison, 27 L.J.C.P. 24.

(j) Sec. 8. This does not prevent justices from making any order, not being in the nature of a conviction or of an adjudication upon a complaint, which they may be authorized or required by law to make, ib.

(k) R. v. Campbell, 3 I. C. L. R. 586 Day v. King, 5 A. & E. 359.

pounds, by way of compensation in damages, and the award so made will be enforceable as an order at petty sessions, viz., by distress and sale of goods (1).

Fraud as to sale of goods.] Justices may seize, or cause to be seized, any of the articles enumerated in 14 & 15 Vic. c. 92, s. 8 (relating to deceit or fraud in the sale of provisions, &c.), and may proceed at once to hear and determine the case, or may adjourn the hearing to the next petty sessions of the district. The articles which he has power to seize are such only as are exhibited for sale, not adulterated articles supplied under a contract; the remedy in that case would be by action (m).

Place of hearing, an open court.] The place where any justice sits to hear and determine any complaint of a summary nature, is an open court, to which the public, as far as convenient, generally may have access (n).

But not in indictable. offences.] But in all proceedings for indictable offences, the place in which any justice shall sit for taking any examination or statement relating to any such offence shall not be deemed an open court for that purpose, but it shall be lawful for such justice in his discretion to order that no person (the counsel or attorney of any prisoner only excepted) shall have access to, or be, or remain in, such place without the consent or permission of such justice, if it appears to him that the ends of justice will be thereby best answered (o). When a magistrate exercises a judicial authority, his proceedings are public; and accordingly, when a justice, without sufficient reason for so doing, caused a party to be removed from a place where he was summarily convicting a party, it was held that he was liable to an action (p).

() Vide 14 & 15 Vic. c. 93, s. 22, post.

(m) See Lev. J's. Man. 49, 2nd. ed. ; see R. v. Mayor of Clonmel, 4 I. J. N. S. 32; 27 Geo. III. c. 46, the Market Jurors' Act; 8 Geo. III. c. 42. extending that act to market towns; and 1 & 2 Vic. c. 28.

(n) Chief constables of the constabulary, when not employed on more important duties, are to attend at the

court of petty sessions in their districts, and to the orders of the magistrates; 6 Wm. IV. c. 13, s. 15.

(0) 14 & 15 Vic. c. 93, s. 9.

(p) Daubeny v. Cooper, 10 B. & C. 237. The court of petty sessions is a court of record, and what is there done is a matter of record, for wherever there is a jurisdiction created, with power to fine and imprison, that is a court of record (the College of

Right to act as advocate.] The parties by and against whom any complaint or information may be heard, may be admitted to conduct or make their full answer and defence, and to have the witnesses examined and cross-examined by themselves, or by counsel or attorney on their behalf (9).

Defendant's confession.] Upon the defendant's appearance, the substance of the complaint is stated to him, and if he admit the truth of the complaint, the justices, if they see no sufficient reason to the contrary, may convict or make an order against him (r). The confession, however, should not only agree with the charge, but should contain an admission of such specific facts as amount to the complete offence complained of; for the confession only admits the charge, and not the legal effect of it (s). So, if a fact be penal only under certain circumstances, and those are omitted in the charge, the conviction is bad, notwithstanding it be stated that the defendant fully acknowledged the premises to be true as charged, and did not shew any sufficient cause why he should not be convicted (t). It may be laid down as a general rule, that a confession of guilt, even in the shape of a plea of "Guilty," made in ignorance of the requisites to constitute an offence, ought not to prevail (u).

Physicians, 1 Salk. 200, 8 Co. 60.38). The doctrine that magistrates acting judicially are judges of record was fully recognized in Basten v. Carew, 3 B & C. 649; see further on this point, re Hammond, 9 Q. B. 96; Chaney v. Payne, 1 id. 724; Charter v. Greame, 13 id. 223; R. v. Yeoveley, 8 A. & E. 810; Paley on Conv. 126.

(q) 14 & 15 Vic. c. 93, ss. 9 & 20; see Bessell v. Wilson, 1 El. & Bl. 489. A party may conduct his own case as an advocate without waiving his right to give evidence as a witness; Cobbett v. Hudson, 1 El. & Bl. 11. It is said that if the prosecutor is himself a witness he should not be permitted to address the bench except upon oath, and then strictly to the facts, as it is desirable that the characters of advocate and witness should not be united in the same person; and this rule should apply even to his

attorney, who, if he be also a witness, ought not to be permitted to address the bench otherwise than upon oath as such witness; Stones v. Byron, 4 D. & L. 393; Deane v. Packwood, id. 395, note b; R. v. Brice, B. & Ald. 606.

(r) 14 & 15 Vic. c. 93, s. 20.

(s) See R. v. Little, 1 Burr. 613; R. v. Corden, 4 Burr. 2279; R. v. Smith, 3 Burr. 1475; R. v. Daman, 2 B. & A. 378; Wickes v. Clutterbuck 3 D. & R. M. C. 536; R. v. Chaney, 6 Dowl. 281.

(t) R. v. Clarke, Cowp. 25; see Paley on Conv. 86.

(u) R. v. Newton, 2 Moo. C.C. 59. As the confession supplies the want of evidence, so it covers any objection to the manner of taking the depositions, such, for instance, as that they were not taken in the presence of the defendant; R. v. Hall, 1 T. R. 320;