Note to vision in section 1 of 11 & 12 Vict. c. 43; Whittle, app., Sect. 1. Frankland, resp., 8 Jur. (N.s.) 382.

Warrant

At common law everything had to be proved as laid, secundum allegata et probata, but this is now remedied by when issued. the proviso to this section, and therefore it was held that in an information for malicious injury to property under 24 & 25 Vict. c. 97, s. 52, where the ownership was laid in several persons, and it appeared that only one of them was the legal owner, the justices ought not to have dismissed the information, but ought to have heard the case; or if they thought the variance likely to mislead, to have adjourned the hearing; Ralph v. Harrell, 32 L. T. (N.s.) 816.

Jurisdiction of justices

in unions.

Petty sessions in boroughs.

Death of justice signing

summons.

By 30 & 31 Vict. c. 106, s. 27, where a union extends into several distinct jurisdictions, every matter, act, charge or complaint by which the guardians thereof are affected, or in which they have any interest, shall for the purpose of jurisdiction be deemed to arise or exist equally throughout the union. Under this enactment the appellate jurisdiction from an order of removal is the same as that under which the order is made, and it does not depend upon the place from which the removal is ordered; Dudley Union v. Wolverhampton Union, 25 L. T. (N.S.) 829; see Reg. v Staffordshire JJ., 41 L. J. M. C. 78; L. R. 7 Q. B. 288.

By 12 & 13 Vict. c. 18, every sitting and acting of justices of the peace, or of a stipendiary magistrate, in and for any city, borough, or town corporate having a separate commission of the peace, or any part thereof, within England and Wales, at any police court or other place appointed in that behalf, shall be deemed a petty sessions of the peace, and the district for which the same shall be holden shall be deemed a petty sessional division within the meaning of any Acts of parliament already made or hereafter to be made, having relation to such petty sessions, or to any business to be transacted thereat.

With regard to the jurisdiction of borough justices, see the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), sections 155-160.

If there be no separate commission of the peace for the borough, the mayor and ex-mayor have jurisdiction in the borough as justices, and the justices of the county at large have concurrent jurisdiction; and the mayor and ex-mayor justices in and for the borough act as county justices with their powers limited to a particular locality; see Reigate v. Hart, post.

It will be seen that by section 37 of the Summary Jurisdiction Act, 1879, post, a summons under this Act or any other Act shall not be avoided by reason of the justice who signed the same dying or ceasing to hold office.

Note to

Sect. 1.

By 31 Vict. c. 22, ss. 4, 5, power is given to the justices in quarter sessions assembled and to the council of any borough having a separate commission of the peace to agree for a common sessions house or to contract for the same. See Sessions also note to section 30 of 42 & 43 Vict. c. 49, post. house.

With regard to offences by militiamen, it is enacted by the Regulation of the Forces Act, 1881 (44 & 45 Vict. c. 57), as follows:

mental

8. (1.) In the case of a person charged with the offence of Suppledesertion, absence without leave, fraudulent enlistment, false provisions answer, or any offence in connection with enlistment under as to offences this Act-

(a) The alleged offender shall not be liable to be tried both
by court-martial and by a court of summary jurisdic-
tion, but may be tried by either of such courts, accord-
ing as any general or special regulations of the
Secretary of State may direct.

(b) Proceedings against the alleged offender when a
militiaman, whether before a court-martial or a court
of summary jurisdiction, may be instituted, whether
the term of his militia service has or has not expired,
at any time within two months after the offence
becomes known to the commanding officer of the
militiaman, if the militiaman is then apprehended, or,
if not, within two months after he is apprehended:
(c) Where an offender has on several occasions been guilty
of any such offence as above mentioned, he may, for
the purposes of any proceedings against him, be deemed
to belong to any one or more of the corps to which he
has been appointed or transferred, as well as to the
corps to which he properly belongs; and it shall be
lawful to charge the offender with any number of the
above-mentioned offences at the same time, and to
give evidence of such offences against him, and if he
be convicted of more than one offence to punish him
accordingly, as if he had been previously convicted of
any such offence.

The Secretary of State for War has issued an army circular in pursuance of the above enactment to the following effect: 1. With reference to sub-section 1(a) of section 8 of Regulation of the Forces Act, 1881, the Secretary of State for War directs that no prosecution of a militiaman under the said Act shall be instituted before a court of summary jurisdiction without the sanction of the commanding officer, or of an authority superior to the commanding officer.

2. The militia regulations prescribe the conditions under which a militiaman may be so prosecuted.

With reference to the above the Home Secretary in a

by militia

man.

Note to
Sect. 1.

If summons

be not

tices may

issue warrant.

circular dated 21st October, 1881, states, that the object of the injunction is to prevent the prosecution before courts of summary jurisdiction of militiamen for offences under the Act relating to the militia at the instance of unauthorized persons-an irregularity which, he states, now frequently takes place with the result of removing from the jurisdiction of courts martial offences which ought properly to be dealt with by military tribunals alone. In order that this regulation may be made generally known, and that magistrates may decline to proceed with unauthorized cases, the Secretary of State addressed a communication to the clerk of each petty sessional division, and requested the clerk of the peace to take any further steps that may be necessary for securing the object in view.

See also with reference to this section, Reg. v. Adamson, post.

2. And be it enacted, that if the person so served obeyed jus- with a summons as aforesaid shall not be and appear before the justice or justices at the time and place mentioned in such summons, and it shall be made to appear to such justice or justices, by oath or affirmation, that such summons was so served what shall be deemed by such justice or justices to be a reasonable time before the time therein appointed for appearing to the same, then it shall be lawful for such justice or justices, if he or they shall think fit, upon oath or affirmation being made before him or them substantiating the matter of such information or complaint to his or their satisfaction, to issue his or their warrant (B.) to apprehend the party so summoned, and to bring him before the same justice or justices, or before some other justice or justices of the peace in and for the same county, riding, division, liberty, city, borough, or place, to answer to the said information or complaint, and to be further dealt with according to law; or upon such rant in the information being laid as aforesaid for any offence punishable on conviction the justice or justices before

or may issue war

first instance;

mons,

whom such information shall have been laid may, if Sect. 2. he or they shall think fit, upon oath or affirmation being made before him or them substantiating the matter of such information to his or their satisfaction, instead of issuing such summons as aforesaid, issue in the first instance his or their warrant (C.) for apprehending the person against whom such information shall have been so laid, and bringing him before the same justice or justices, or before some other justice or justices of the peace in and for the same county, riding, division, liberty, city, borough, or place to answer to the said information, and to be further dealt with according to law; or if, or if sumwhere a summons shall be so issued as aforesaid, having been duly served, and upon the day and at the place appointed in and be not obeyed, the by the said summons for the appearance of the justices may party so summoned, such party shall fail to appear parte. accordingly in obedience to such summons, then and in every such case, if it be proved upon oath or affirmation to the justice or justices then present that such summons was duly served upon such party a reasonable time before the time so appointed for his appearance as aforesaid, it shall be lawful for such justice or justices of the peace to proceed ex parte to the hearing of such information or complaint, and to adjudicate thereon, as fully and effectually, to all intents and purposes, as if such party had personally appeared before him or them in obedience to the said summons.

As to proof of service, &c., see section 41 of Summary Jurisdiction Act, 1879, post.

A warrant may be issued in two instances:-1st, in the event of the summons not being obeyed; and 2nd, it may be issued in the first instance without a summons. Instead of issuing a warrant to bring the defendant before them, the

proceed ex

Note to ect. 2.

Detention

under Merchant Shipping

Act,

justices may proceed ex parte, as already explained; but if for any reason they do not think it expedient to do so, they will issue their warrant, after proof of the service of the summons a reasonable time before the time appointed for the hearing. What is a "reasonable time" will be of course for the justices to determine with reference to each case, and therefore no general rule can be laid down. See In re Williams, ante, p. 7. If they should be of opinion that a reasonable time had not elapsed, or if the constable do not attend to prove the summons, they should withhold the issue of a warrant; and if the defendant require them to do so, issue another summons for the defendant's attendance before them at a future day.

A warrant to apprehend can be issued in either case of an information or complaint, after a summons has been issued and the defendant has not appeared; but a warrant to apprehend in the first instance can only issue in the case of an information. In such case it is discretionary with the justice whether he will issue it or not; and he will act advisedly by confining the issue of a warrant in the first instance to cases in which there is every probability of a summons not being attended to, or that the accused person will abscond when he is informed of the proceedings that are being taken against him. A summons may issue without the plaintiff being sworn; but the section requires that the information shall be laid before the justice, upon oath or affirmation, substantiating the truth thereof to his satisfaction, previous to his issuing a warrant in the first instance.

By the Merchant Shipping Acts Amendment Act (25 & 26 of offenders Vict. c. 63), s. 37, it shall be lawful for the master or other officer of any duly surveyed passenger steamer, and for all persons called by him to his assistance, to detain any person who has committed any offence against any of the provisions of sections 35 and 36 of the Act, and whose name and address are unknown to such officer, and to convey such offender with all convenient dispatch before some justice without any war rant or other authority than the Act; and such justice shall have jurisdiction to try the case, and shall proceed with all convenient dispatch to the hearing and determining of the complaint against such offender. The offences referred to in sections 35 and 36 are being drunk and disorderly, molesting passengers, forcing way on board ship when full, refusing to quit ship when full, avoiding payment of fares, and injuring steamer or molesting the crew.

Death of justice issuing

warrant.

By section 37 of the Summary Jurisdiction Act, 1879, post, a warrant under this Act or any other Act shall not be avoided by reason of the justice who signed it dying or ceasing to hold office. See also 44 & 45 Vict. c. 24, s. 5, post.