As to the commitment of prisoners, see the provisions of the Prisons Act, 1877 (40 & 41 Vict. c. 21), ss. 24-29, post.

Justices for a county have jurisdiction to make an order under 3 & 4 Vict. c. 54, relating to a criminal lunatic, while sitting in a borough having a separate commission of the peace, by virtue of 11 & 12 Vict. c. 42, s. 6, and 11 & 12 Vict. c. 43, s. 6, coupled with 26 & 27 Vict. c. 77, which latter Act so far renders nugatory the exceptions in 11 & 12 Vict. c. 43, s. 35. Per Cockburn, C.J., the 26 & 27 Vict. c. 77, s. 1, in effect enacts that section 35 of 11 & 12 Vict. c. 43, shall be repealed so far as it had any operation to control section 6 of the same Act, and therefore, by what is certainly a most remarkable piece of legislation, the operation of section 6 is left untouched as to the jurisdiction of justices, although other sections of the Act, such as section 11, limiting the time for making the complaints, will still not apply to the orders mentioned in section 35; Bradford v. Clerk of the Peace for Wilts, L. R. 3 Q. B. 604; 9 B. & S. 660; 18 L. T. (N.S.) 515.

With regard to the jurisdiction of justices in petty sessional divisions, see 9 Geo. 4, c. 43, "An Act for the better regulation of Divisions in the several Counties of England," since which their jurisdiction has been a thoroughly understood

matter.

By the Act to amend the Law relating to the Jurisdiction of Justices residing or being out of the County for which they are Justices (26 & 27 Vict. c. 77), reciting that, Whereas by the sixth section of an Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter forty-three, intituled " An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to Summary Convictions and Orders" (which Act is hereinafter referred to as the principal Act), it is enacted, that such of the provisions contained in the Act passed in the same session of parliament, chapter forty-two, and intituled "An Act to facilitate the Perfor mance of the Duties of the Justices of the Peace out of Sessions within England and Wales with respect to Persons charged with Indictable Offences," whereby a justice of the peace for one county, riding, division, liberty, city, borough, or place may act for the same whilst residing or being in an adjoining county, riding, division, liberty, city, borough, or place of which he is also a justice of the peace, or whereby a justice of the peace for any county at large, riding, division, or liberty may act as such within any city, town, or precinct next adjoining thereto or surrounded thereby, being a county of itself, or otherwise having exclusive jurisdiction, as are applicable to the provisions of the principal Act shall be

Note to

Sect. 6.

Note to
Sect. 6.

Power to justices to

summon witnesses to

give

evidence.

deemed to be incorporated with the principal Act, and to extend to all acts required of or to be performed by justices of the peace under or by virtue of the principal Act in as full and ample a manner as if the said provisions and enactments were repeated and made parts of that Act: And whereas by the thirty-fifth section of the principal Act it is provided that nothing in the Act contained shall extend to certain cases therein mentioned: And whereas it is apprehended that the provisions of the said sixth section of the principal Act are controlled by the thirty-fifth section of the same Act, and that justices cannot act under the first-mentioned of the said two sections in the cases mentioned in the said thirty-fifth section: And whereas it is expedient that the principal Act should be amended as hereinafter provided: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same as follows:-Section 1. The thirty-fifth section of the principal Act shall not apply to or control the sixth section of the same Act, and such last-mentioned section shall be construed as if the thirty-fifth section were not and never had been contained in the principal Act; and any acts done or orders made by justices previously to the passing of this Act which would have been valid if this Act had been passed at the respective dates of such acts being done or orders made shall be and are hereby declared to be valid accordingly.

7. And be it enacted, that if it shall be made to appear to any justice of the peace, by the oath or attend and affirmation of any credible person, that any person within the jurisdiction of such justice is likely to give material evidence in behalf of the prosecutor or complainant or defendant, and will not voluntarily appear for the purpose of being examined as a witness at the time and place appointed for the hearing of such information or complaint, such justice may and is hereby required to issue his summons (G. 1) to such person under his hand and seal, requiring him to be and appear at a time and place mentioned in such summons before the said justice, or before such other justice or justices of the peace for the

be not

warrant.

same county, riding, division, liberty, city, borough, Sect. 7. or place, as shall then be there, to testify what he shall know concerning the matter of the said information or complaint; and if any person so sum- If summons moned shall neglect or refuse to appear at the time obeyed justices may and place appointed by the said summons, and no issue just excuse shall be offered for such neglect or refusal, then (after proof upon oath or affirmation of such summons having been served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and that a reasonable sum was paid or tendered to him for his costs and expenses in that behalf) it shall be lawful for the justice or justices before whom such person should have appeared to issue a warrant (G. 2) under his or their hands and seals to bring and have such person, at a time and place to be therein mentioned, before the justice who issued the said summons, or before such other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place, as shall then be there, to testify as aforesaid, and which said warrant may, if necessary, be backed as hereinbefore is mentioned, in order to its being executed out of the jurisdiction of the justice who shall have issued the same; or if such justice shall be satisfied by In certain evidence upon oath or affirmation, that it is probable issue warthat such person will not attend to give evidence first without being compelled so to do, then, instead of issuing such summons, it shall be lawful for him to issue his warrant (G. 3) in the first instance, and which, if necessary, may be backed as aforesaid; and if on the appearance of such person so sum- Persons moned before the said last-mentioned justice or on sum

cases may

rant in the

instance.

appearing

mons, &c.,

refusing to

be exa

mined may

be committed.

Sect. 7. justices, either in obedience to the said summons, or upon being brought before him or them by virtue of the said warrant, such person shall refuse to be examined upon oath or affirmation concerning the premises, or shall refuse to take such oath or affirmation, or having taken such oath or affirmation, shall refuse to answer such questions concerning the premises as shall then be put to him, without offering any just excuse for such refusal, any justice of the peace then present, and having there jurisdiction, may by warrant (G. 4) under his hand and seal, commit the person so refusing to the common gaol or house of correction for the county, riding, division, liberty, city, borough, or place where such person so refusing shall then be, there to remain and be imprisoned for any time not exceeding seven days, unless he shall in the meantime consent to be examined and to answer concerning the premises.

Summoning of witnesses.

Before a summons is issued to compel the attendance of an unwilling witness, oath or affirmation must be made before the justice, that such witness, if present, would be able to give evidence material to the prosecutor, or complainant, or defendant, as the case may be, and that he will not voluntarily appear as a witness. The summons (G. 1) must be served upon the witness, either personally or by being left at his last or most usual place of abode. It need not necessarily be served by a constable, but may be served by any person, and at the time of service a reasonable sum should be tendered to defray the witness's expenses of going to and returning from the place of hearing. If the witness do not obey the summons, and no just excuse be offered, then upon proof upon oath or affirmation of the service of the summons, and tender of reasonable costs, a warrant (G. 2) may be issued to apprehend him. The warrant, in such case, will be executed by the constable or other peace officer in the usual manner; but if the witness be not within the jurisdiction of the justice issuing the warrant, then it may be backed in the same way as an ordinary warrant to apprehend. On the other hand, if the justices should be

Note to

Sect. 7.

who are prisoners.

satisfied by evidence upon oath or affirmation that it is probable the witness will not attend to give evidence unless he is compelled to do so, such justice may issue his warrant to apprehend (G. 3), in the first instance, without a previous summons, which may be executed the same, in all respects, as a warrant to apprehend upon a previous summons. If, when the witness is got before the justice, he refuse to be examined, or refuse to be sworn, or to answer the questions put to him without offering any just excuse for such refusal, he may be committed (G. 4) for seven days to the common gaol or house of correction, unless he shall sooner consent to be examined. As to the bringing up prisoners who are in gaol to be Witnesses examined as witnesses in any matter, civil or criminal, depending, or to be inquired of, or determined, in or before any justice, the 16 & 17 Vict. c. 30, s. 9, enacts, "That it shall be lawful for one of Her Majesty's principal secretaries of state, or any judge of the Court of Queen's Bench or Common Pleas, or any baron of the Exchequer, in any case, where he may see fit to do so, upon application by affidavit, to issue a warrant or order under his hand for bringing up any prisoner or person confined in any gaol, prison, or place, under any sentence or under commitment for trial or otherwise (except under process in any civil action, suit, or proceeding), before any court, judge, justice, or other judicature, to be examined as a witness in any cause or matter, civil or criminal, depending, or to be inquired of, or determined, in or before such court, judge, justice, or judicature; and the person required by such warrant or order to be so brought before such court, judge, justice, or other judicature, shall be so brought under the same care and custody, to be dealt with in like manner in all respects as a prisoner required by any writ of habeas corpus awarded by any of Her Majesty's superior courts of law at Westminster, to be brought before such court to be examined as a witness in any cause or matter depending before such court, is now by law required to be dealt with."

With regard to the examining of witnesses in proceedings In poor law to be had before justices in petty or special sessions, or out of proceedings. sessions, under the provisions of the Poor Law Acts, see 7 & 8 Vict. c. 101, s. 70.

Where an infirm witness is unable to attend on the subpoena Infirm witand give evidence on a matter at petty sessions, there is not nesses. power in the superior courts to issue an order to a justice of the peace residing near the witness to take his examination.

Ex parte Kimbolton, 25 J. P. 759.

To entitle a witness to refuse to give evidence on the Refusal of ground that it might criminate him, the court must deter- witness to mine from the nature of the evidence and the surrounding give circumstances that there is reasonable ground to apprehend

evidence.