bench. a witness, and gave evidence to rebut the case who may set up by the defendant; and upon a verdict address the being returned for the plaintiff the court above set it aside and made a rule absolute for a new trial. In that case Mr. Justice Patteson said, "I think where a party makes a speech to the jury, stating his case, cross-examines the witnesses called on the other side, makes a speech in reply, and then tenders himself as a witness, he ought not to be heard." In a subsequent case of Dunn v. Packwood (1 B. C. Rep. 312), it appeared that the plaintiff's attorney had acted in the double capacity of advocate and witness, in stating the case to the jury, and then tendering himself and being examined as a witness; and on a motion on this ground for a new trial, Mr. Justice Erle said, "I quite concur in the judgment of my brother Patteson in that case (Stones v. Byron), and think that a jury ought not to be put to consider testimony given by a witness after having just heard a speech from him as advocate in the cause. This principle was acted on by the late Lord Tenterden, and I think it is sound. The rule for a new trial must therefore be made absolute." The above cases were those of civil actions and before a jury; but the rule is still stronger in criminal cases, and applies with equal force to proceedings by way of summary conviction before justices, who, in such cases are, to all intents and purposes, the jury to decide upon them, and who, in the language of Mr. Justice Erle, ought not to be put to consider testimony given by a witness after having just heard a speech from him as advocate in the 'cause. In Rex v. Brice (2 Barn. & Ald. 606), the defendant had been tried and acquitted at the London sittings upon an indictment for perjury, and afterwards the prosecutor in person moved for a new trial, on the ground that the Lord Chief Justice had refused to allow him to address the jury and state the case for the prosecution; and the court then said, "In a criminal prosecution instituted for the interests of the public in the name of the King, and not to gratify the objects of an individual, a prosecutor has no right to address the jury. Counsel indeed (who are in some measure under the control of the court) have this privilege allowed to them, because, from their professional education and habits of business, it is to be expected that they will not state to the jury anything but what is fit for them to hear. Besides, the prosecutor may be, and generally is, a witness; and it is very unfit that he should be permitted to state, not upon oath, facts to the jury which he is afterwards to state to them upon oath ;" and in the same case, Mr. Justice Bayley said, that "he remembered a case where Lord Ellenborough had allowed the prosecutor to address the jury, and afterwards, on being spoken to on the subject by the other judges, expressed his conviction that he had done wrong." From the foregoing, the principle is well established, that no man who is to be a witness ought to be permitted to address the parties who are to act upon his testimony, in the character of an advocate. If, therefore, the prosecutor desire to make a statement of the case to the bench, he should be asked if he is himself a witness, and if he reply in the affirmative, his statement ought not to be received, but he should be sworn and his evidence taken only as a witness. Should he not be a witness, it will be right to allow him to state his case, and indeed this is expressly required by the terms of the 14th section of the 11 & 12 Vict. c. 43. Examination 'The witnesses will be called and examined in and crosss- the order best calculated to explain the case, the of witnesses. defendant being allowed to cross-examine each examination one after the examination in chief, and the complainant re-examining as to any facts which have transpired in the course of the cross-examination having relevance to the matter in issue. Each witness will thus be called on the part of complainant until his case is concluded. If, in the course of the evidence, any question should arise as to the admissibility of any evidence, documentary or otherwise, each party should be at liberty to address the bench upon the subject, and the justices should then form their judgment upon the point. CHAPTER XII. CONCLUSION OF THE CASE OF THE COMPLAINANT of the case of Duty of Addressing Ar the conclusion of the case of the complainant, Conclusion the justices will consider whether or not any the comlegal offence has been established; if they should plainantbe of opinion that none has been made out, they justices thereuponwill at once dismiss the complaint, without call- Case of ing upon the defendant for his defence; but if defendantthey are of opinion that a primâ facie case has the bench. been established, they will then proceed to hear the defendant. The defendant, as we have seen, has a right to address the bench, either himself or by his counsel or attorney, and having so addressed them, he will either rely upon the insufficiency of the case, as intended to be established by the complainant, or he will attempt to answer it by positive testimony. He will, if he consider it necessary, and is enabled to do so, adduce his witnesses and examine them in the order he deems best; and the same rules will apply as to the course of proceeding relative to the evidence which he produces as those which obtain with regard to the evidence of the complainant. Should the defendant have produced witnesses, the complainant will have a right to rebut their evidence by evidence in reply; if, however, the defendant has called witnesses only to character, no right to adduce evidence in reply is permitted: (11 & 12 Vict. c. 43, s. 14.) However, neither party will again have a right to address the bench, the foregoing section restricting each party to one address only. This provision, as to restricting the right to address the bench more than once by each party, is a limitation upon the old practice, which was as follows:-"If the defendant called witnesses, the complainant would have a right to reply; but if he called witnesses in reply to the defendant's evidence, his reply would be postponed, and he would call his witnesses in reply immediately after the defendant had concluded his evidence --and upon the plaintiff's concluding his evidence in reply, the defendant had a right to address the bench upon such evidence in reply, and upon that alone; and immediately after the complainant had a right to address the bench upon the whole case." The latter course of proceeding will still be the proper one to be pursued in summary convictions not under this act—and they are many-for by sect. 35 of the before-mentioned act, the provisions of this statute (in reference to the present matters) do not apply to informations, complaints, or other proceedings under or by virtue of any of the statutes relating to the Excise Customs, Stamps, or Post-office, matters of bastardy, and the labour of children in mills and factories, in all of which cases the old course of proceedings should be followed. ments. By sect. 16, ample powers are conferred on Adjournthe justices as to adjourning the hearing of any information or complaint. If, therefore, for any reason they should think the ends of justice will be promoted by an adjournment, or it should be requested for a valid reason by either of the parties, and no prejudice to the case is likely to be sustained thereby, the justices should not hesitate to grant it. This, however, being a matter entirely within their own discretion, their sense of fairness will always dictate to them in what cases and under what restrictions an adjournment ought to be permitted. justices on right. Before proceeding onward in the description Duty of of the ordinary and usual course of proceedings the assertion upon summary hearings, it will be proper for us of a claim of to consider a few circumstances which occasionally arise to interrupt and arrest that course; and herein we will first refer to the assertion of a claim of right. It may be laid down as a general proposition, that whenever the defendant makes it appear that the act complained of was done in the assertion of a bonâ fide claim of right, the jurisdiction of the justices cease, and they should dismiss the complaint, leaving the complaining party to such other remedies as the law may have provided. In acting, how. ever, upon any such assertion of right, they will consider not only whether the case is one in which, from its nature, a claim of right is at all admissible, or operates as a defence, but also whether or not the claim is made bonâ fide or is merely colourable; for if it be made in a case in which it is not applicable, or does not amount, even if true, to a legal defence, or is merely colourable, and without any reasonable foundation, the justices will disregard it, and proceed with the case. When, therefore (at whatever |