not invalidate subsequent proceedings. Thus, under the Smuggling Act (8 & 9 Vict. c. 87), s. 58, which authorized a justice to detain the party charged for a reasonable time, (in order to allow of the information, &c., being prepared), and at the expiration thereof to cause him to be brought before any two justices, who were to determine the matter, it was held, that although the party charged was detained an unreasonable time and then convicted, the conviction was still valid (x).

The magistrate being possessed of the charge, it be- Justice bound to proceed. comes his duty either to dismiss it upon hearing, or to proceed to the examination of it (y). So where the liberation, or forfeiture, of property seized under the acts relat- Declining ing to the customs or excise depends upon the adjudication jurisdiction. of the magistrates before whom the information is laid, they are bound either to proceed, or to discharge the information altogether. Thus, on an information exhibited by an officer of the customs, under 6 Geo. 1, c. 1, upon a seizure of brandy, though the facts appeared not to warrant the seizure, yet the justices refused to dismiss the information, so as to enable the party to reclaim his property: and, upon a motion stating these circumstances, a mandamus was issued to compel them to proceed to a determination (z).

Before making an application for a mandamus, or for a rule calling upon the justices to hear and determine a matter brought before them, care must be taken to distinguish between those cases in which they have declined to enter upon the inquiry, in consequence of a mistaken view of the law as to some preliminary point,

(x) Van Boven's case, 9 Q. B. 669.

(y) See 11 & 12 Vict. c. 43, s. 14. And this without taking an indemnity; Selwood v. Mount, 9 C. & P. 75.

(z) R. v. Tod, Str. 530; and see R. v. Bolton, 1 Q. B. 66; Pease v. Chaytor, 3 B. & S. 620; 32 L.

J., M. C. 121. In Ex parte Davey,
2 Dowl., N. S. 24, the court re-
fused to compel justices to hear a
complaint and proceed summarily
under the statute relating to for-
cible entry and detainer, the
remedy by indictment being still

open.

and those in which, having entered upon the inquiry, they have actually arrived at a decision, however erroneous it may be (a). In the former instance, in which they are said to decline jurisdiction, the Court will compel them to proceed; in the latter, the Court will not interfere (b), except upon a case reserved, or there has been a want or excess of jurisdiction, or the conviction or order is bad on the face of it. In order to constitute such a declining of jurisdiction as will warrant the intervention of the Court, the wrong conclusion to which the magistrates have come in respect of the preliminary matter must be one of law, not of fact (c), or it must be a mixed question of law and fact (d). It is sometimes difficult to trace the dividing line in these cases. A statute provided, that if the election of any deputy should be opposed, and notice thereof in writing be given or delivered to him within a certain time, the assembled deputies should inquire into and determine the validity of the election. Proof was given that notice had been served in due time upon the wife of the party objected to at his dwelling-house, but the meeting decided that personal service was essential, and therefore refused to inquire into the validity of the election. It was held by the Court, that there had been a declining of jurisdiction under a mistake of law. With respect, however, to another party objected to, evidence was given of personal service of the notice in due time, but the meeting, not believing the statement of the witness, decided that the disputed election was valid;

(a) See R. v. Dayman, 7 El. & Bl. 672; 26 L. J., M. C. 128; R. v. Paynter, 7 El. & Bl. 328; 26 L. J., M. C. 102; R. v. Brown, 7 El. & Bl. 757; 26 L. J., M. C. 183; R. v. Dickenson, 3 Jur., N. S. 1076.

(b) "Where there has been a taking and exercise of the jurisdiction of magistrates, even if that jurisdiction has been wrongly exercised, and in the judgment of the

court, wrongly assumed, the court will not interfere by appeal to correct it." Per Coleridge, C. J., in R. v. Brackenridge, 48 J. P. 293.

(c) Per Patteson, J. in R. v. Recorder of Liverpool, 1 L. M. & P. 682; 20 L. J. (N. S.), M. C. 35; Re Pratt, 7 A. & E. 27.

(d) R. v. Hinckley, 3 B. & S. 885; 32 L. J., M. C. 158.

the Court held, that the deputies having decided a question of fact, over which they had jurisdiction, their decision was final (e). Lord Campbell on that occasion said, "Where justices, or others, on a mistaken view of the law, refuse to hear on a point on which jurisdiction depends, we call upon them to go into the inquiry. But when they have heard and decided, we do not review their decision. On that principle, writs of mandamus to hear appeals against orders of removal have proceeded. If they mistake the law and require an unreasonable service of the notice, they decline jurisdiction; but i they have once heard and decided, their decision must be final." It matters not at what stage of the case the magistrates decline to proceed, because whether they have jurisdiction or not is the cardinal point which affects the proceedings from the beginning, however far advanced they may be (ƒ). It has been suggested as a test :-Is the objection such that whatever the merits of the case, whether the defendant be guilty or not, the justices hold that they cannot decide upon the merits, owing to the objection in point of law, e.g. want of parties or of notice? Such holding is a declining of jurisdiction and not an adjudication (g). Where magistrates have a discretion vested in them, whether they will proceed or not, and, in the exer

(e) R. v. Goodrich and others, 19 L. J., Q. B. 413; 14 Jur. 914, 8. C. See R. v. Cotton, 15 Q. B. 569; R. v. Blanshard, 13 Q. B. 318; R. v. Recorder of Liverpool, 1 L. M. & P. 682; 20 L. J., M. C. 35; R. v. Charlesworth, 2 L. M. & P. 117; 20 L. J., M. C. 181; R. v. Recorder of Bolton, 18 L. J., M. C. 139; 2 D. & L. 510 R. v. JJ. West Riding of Yorksh., 1 Q. B. 624; 2 Q. B. 331; R. v. JJ. Carnarvon, 2 Q. B. 325; R. v. JJ. Flintsh., 2 D. & L. 143; 16 L. J., M. C. 55, S. C.; R. v. Aston, 1 L. M. & P. 491; 14 Jur. 1045, S. C.; R. v. JJ. Great Yarmouth, 4 New Sess. Cas. 313; R. v. JJ. Kesteven, 3 Q. B. 810; R. v. Byrom, 12 Q. B. 321; 17 L. J., M. C. 134;

3

Re Pratt, 7 A. & E. 27 (case of appeal from conviction); Ex parte British Patent Company, 7 Dowl. 614; Re Clee and Osborne, 21 L. J., M. C. 112, B. C.; R. v. Colling, 17 Q. B. 816; 21 L. J., M. C. 73; 16 Jur. 422; R. v. JJ. Worcestersh., El. & Bl. 477; R. v. Overseers of Warblington, 22 L. T. 304; R. v. JJ. Bristol, 18 Jur. 426; 3 El. & Bl. 479, n. (a); Pease v. Chaytor, 3 B. & S. 620; 32 L. J., M. C. 121; R. v. Mayor of Monmouth, L. R., 5 Q. B. 251; 39 L. J., Q. B. 77 (case of notice of objection to burgess list).

(f) R. v. Brown, 7 El. & Bl. 757; 26 L. J., M. C. 183, per Erle, J. (g) Id., per Coleridge, J.

Criminal charges

arising out of civil proceed ings still pending.

cise of such discretion, have refused to proceed, the Court will not order them to do so; but in such case they must have really exercised their discretion or judgment in the matter, and not have acted from mere caprice or from notions of what the law ought to be instead of what it is, although the statute may have said, they are to proceed 'if they think fit" (h).

Where justices have a discretion to grant or refuse a summons, and exercise that discretion properly, the Court will not grant a mandamus to hear and determine the matter (i). Where justices dismissed a summons on the ground that the complaint had not been made within six months after the commission of the offence, which they considered was not a continuing offence, and the following year the same complainant laid a similar information against the defendant, when the justices, having regard to their previous decision, considered that they had no jurisdiction to go into the matter again, and refused to issue a summons. The Court held that instead of declining jurisdiction, the justices should have heard and determined whether, upon the circumstances disclosed, a summons ought to have been issued (k).

As a general rule, magistrates ought not to entertain criminal charges arising out of civil proceedings which are still pending, at all events except for the purpose of holding the accused person to bail, unless the cause has been postponed to allow the criminal charge to be first disposed of. Of course, therefore, in the absence of such postponement, the Court will not compel justices to proceed c.. the criminal charge while the cause is pending (₹).

(h) R. v. Boteler and others, 4 B. & S. 959; 33 L. J., M. C. 101; where see definition of judicial discretion; R. v. JJ. Durham, 19 L. T. 396.

(i) R. v. Huggins, 60 L. J., M. C. 139.

(k) R. v. Byrde and others, 60 L. J., M. C. 17; 63 L. T. 645.

(1) R. v. Ingham, 14 Q. B. 396.

It is the practice of the Central Criminal Court not to try an indictment for perjury arising out of a civil action, until such action is determined, unless the trial of the action has been postponed by the Court, in order that the indictment may be tried first; R. v. Ashburn, 8 C. & P. 50.

necessary.

If the information appears to justify the interference of Where a the magistrate, the next step is to give the party accused summons is notice of the accusation, and an opportunity of answering it, by issuing a summons, containing the substance of the charge, or by granting a warrant for his apprehension (m). This method of proceeding is pointed out by stat. 11 & 12 Vict. c. 43, ss. 1, 2, but, independently of positive enactment, the law declares that the magistrates, to whom the cognizance of offences is referred, are bound to observe the rules of natural justice,-one of which is, that the accused should have an opportunity of being heard before he is condemned (n). This is indispensably required in all penal proceedings of a summary nature by justices of the peace (o). It is declared by Lord Kenyon to be an invari

(m) By the Criminal Law Consolidation Act (24 & 25 Vict. c. 96). 8. 105, when any person is charged on the th of a credible witness before a justice with any offence punishable on summary conviction under that act, the justice may summon the party charged to appear, &c.

(n) Per Parker, C. J., R. v. Simpson, 10 Mod. 379; R. v. Dyer, 1 Salk. 181; 6 Mod. 41; Dalt. c. 6; 1 Str. 561; R. v. University of Cambridge (Dr. Bentley's case), 1 Stra. 557; Webb v. Batchelour, 1 Vent. 273; Freem. 489, S. C. See also Bagg's case, 11 Co. 99. Lord Coke adopts as a principle of law the passage of Seneca:

Qui aliquid statuerit parte inauditâ alterâ,

Equum licet statuerit, haud æquus fuerit."

"The laws of God and man both
give a party an opportunity to
make his defence, if he has any.
I remember to have heard it ob-
served by a very learned man on
one occasion that even God himself
did not pass sentence upon Adam
before he was called upon to make
his defence." Per Fortescue, J., in
R. v. University of Cambridge,

supra.

(0) R. v. Dyer 1 Salk. 181; 6 Mod. 41; and the cases collected in 8 Mod. 154, n. (a). See also R. v. Green, Cald. 391; Harper v. Carr, 7 T. R. 270; R. v. Gaskin, 8 Id. 209; Capel v. Child, 2 C. & J. 558; Stevens v. Evans, 2 Burr. 1152, 1157-1159; Becquet v. Macarthy, 2 B. & Ad. 951; Re Hammersmith Rent-charge, 4 Exch. 87; per Parke, B., Id. 97; Bartlett v. Kirwood 2 El. & Bl. 771.