Sect. 8. alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the justice or justices who shall take the examination of the witnesses in that behalf, as hereinafter mentioned. Information on oath. Before this enactment there was no statute which expressly required that upon the issue of a warrant in the first instance the information should be in writing on the oath or affirmation of the informant, though it was the practice to require it to be in writing. Now it is expressly required to be in writing, and upon oath or affirmation. When it is intended to issue a summons instead of a warrant in the first instance, the Act provides that the informamation or complaint may be by parol merely, and without any oath or affirmation. The justices, however, are not precluded from requiring that the information shall be in writing if they deem it expedient to do so. As the information is merely for the guidance of the justice in issuing his warrant, and is in fact no portion of the proceedings so far as the defendant is concerned in his defence, any objection to the form or substance of the information is absolutely prohibited by the last proviso. As regards objections to the summons, see the proviso to section 9. Any person may lay the information for an indictable offence; and the most usual course is to take an information in the form of a deposition, stating shortly the facts, and not an information of the offence couched in the technical language on indictment or commitment. The Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22), s. 5, post, p. 447, provides for the delivery of informations, &c., to the director of public prosecutions in cases in which he has instituted or undertaken, or is carrying on any criminal prosecution. When a justice has refused to issue a summons upon complaint, other justices may subsequently refuse to hear an information and take the recognizances of the prosecutor to prosecute in the same matter; and the Vexatious Indictments Act, 22 & 23 Vict. c. 17, s. 2 (post), does not apply to such proceedings unless a summons or a warrant has been granted. Reg. v. Bather, 42 L. T. (N.S.) 532. Where justices entertain an application for a summons for a criminal offence, and have considered the materials on which the application is based, and refused to hear more or to grant a summons, the High Court of Justice will not interfere by mandamus to order them to hear the application again. Ex parte MacMahon, 48 J. P. 70. An application being made to the stipendiary magistrate of Leeds to hear a charge of perjury alleged to have been committed by a defendant in a suit in Chancery, and to issue a warrant against the defendant on the charge, after hearing the application and reading the information the magistrate declined to issue a summons or warrant, and on an application for a mandamus on the ground that the magistrate had really declined to exercise his jurisdiction, as he had refused to hear the case, the Lord Chief Justice said the magistrate had not declined to exercise his jurisdiction, and had indeed exercised it, having heard the charge, and on hearing it declined to issue his warrant. That was an exercise of jurisdiction, and even if he had exercised it wrongly, that did not give this court any jurisdiction to interpose. The magistrate had a discretion to exercise in such cases, and was not bound on every application for a warrant or summons to issue it. The preliminary inquiry as to whether he should issue his summons or not was as much a judicial inquiry as the hearing of the charge or the summons would be; and he having exercised his judicial discretion on the matter, this court could neither reverse his decision nor force him to decide the matter again. If this application were acceded to, then in every case in which a magistrate refused a summons, this court must rehear the case and review the decision. The application was therefore refused. In the matter of the Stipendiary Magistrate for Leeds, 43 J. P. 743. Note to Sect. 8. receiving summons or person 9. Upon such information and complaint being so Upon complaint being laid as aforesaid the justice or justices receiving the laid, justices same may, if he or they shall think fit, issue his or the same their summons or warrant respectively as herein- may issue before is directed to cause the person charged as aforesaid to be and appear before him or them, or ance of any other justice or justices of the peace for the same charged. county, riding, division, liberty, city, borough, or place, to be dealt with according to law; and every such summons (C.) shall be directed to the party so charged in and by such information, and shall state shortly the matter of such information, and shall How sum- Sect. 9. require the party to whom it is so directed to be and appear at a certain time and place therein mentioned before the justice who shall issue such summons, or before such other justice or justices of the peace of the same county, riding, division, liberty, city, borough or place, as may then be there, to answer to the said charge, and to be further dealt with according to law; and every such summons shall be served by a constable or other peace officer upon the person to whom it is so directed by delivering the same to the party personally, or if he cannot conveniently be met with then by leaving the same with some person for him at his last or most usual place of abode; and the constable or other peace officer who shall have served the same 'in manner aforesaid shall attend at the time and place and before the justices in the said summons mentioned, to depose, if necessary, to the service of such summons; and if the person so served shall not be and appear before the justice or justice may justices at the time and place mentioned in such summons, in obedience to the same, then it shall be lawful for such justice or justices to issue his or their warrant (D.) for apprehending the party so summoned and bringing him before such justice or justices, or some other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place, to answer the charge in the said information and complaint mentioned, and to be further dealt with according to law: Provided for alleged always, that no objection shall be taken or allowed to any such summons or warrant for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on If party summoned do not attend issue a warrant to compel attendance. No objec tion allowed defect in form, &c. the part of the prosecution before the justice or Sect. 9. justices who shall take the examinations of the witnesses in that behalf, as hereinafter mentioned; but if any such variance shall appear to such justice or justices to be such that the party charged has been thereby deceived or misled, it shall be lawful for such justice or justices, at the request of the party so charged, to adjourn the hearing of the case to some future day, and in the meantime to remand the party so charged, or admit him to bail, in manner hereinafter mentioned. vice of summons. The summons must be addressed to the person accused, and Address not, as was formerly the practice, to the constable; and it and sermust also be served by a constable or other peace officer by delivering it personally to the accused, or if he cannot conveniently be found, by leaving it with some person for him at his last or most usual place of abode. It should not be left with any person indifferently; but should be given to the wife, servant, parent, or other person likely to give it to the accused. If at the time appointed in the summons the accused do not appear, the justice, on the constable proving the service of the summons, will issue a warrant for his apprehension. If on application to justices for a summons for an indict- Discretion able offence they have heard and determined the application of justices and on the merits have declined to grant it, the court will to issue not grant a mandamus to compel them to review their decision. Reg. v. Fawcett and Others, JJ. of Durham, 19 L. T. (N.S.) 396; 32 J. P. 776. The justices, if they refuse to issue a summons under 11 & 12 Vict. c. 42, s. 9, must exercise a discretion as shown by the following case. Upon an application to justices for summonses against certain persons to answer a charge of conspiracy to break the peace and do grievous bodily harm at a public meeting, evidence was given that a disturbance had arisen at the meeting in which the defendants took part, and that one or other of them had previously offered money to different persons if they would commit acts of violence at the meeting; the justices after hearing evidence declined to issue the summonses, and a rule nisi for a mandamus having been obtained, they stated in their affidavit that upon the facts brought before them they summons. Note to Warrant to apprehend under hand and seal of justice. How warrant to be directed and to whom. did not feel justified in granting the application, but did not say that they thought the witnesses unworthy of credit. The court made the rule absolute, for although under this section the justices are to issue their summons "if they shall think fit," it was evident that in this particular case they had not exercised a discretion. Reg. v. Adamson, L. R. 1 Q. B. D. 201; S. C. Reg. v. Justices of Tynemouth, 32 L. T. (N.s.) 840; 40 J. P. 182. See also 44 & 45 Vict. c. 24, s. 5, ante, p. 277. 10. And be it declared and enacted that every parties to be warrant (B.) hereafter to be issued by any justice or justices of the peace to apprehend any person charged with any indictable offence shall be under the hand and seal or hands and seals of the justice or justices issuing the same, and may be directed either to any constable or other person by name, or generally to the constable of the parish or other district within which the same is to be executed without naming him, or to such constable and all other constables or peace officers in the county or other district within which the justice or justices issuing such warrant has or have jurisdiction, or generally to all the constables or peace officers within such last-mentioned county or district, and it shall state shortly the offence on which it is founded, and shall name or otherwise describe the offender, and it shall order the person or persons to whom it is directed to apprehend the offender, and bring him before the justice or justices issuing the said warrant, or before some other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place, to answer to the charge contained in the said information, and to be further dealt with according to law; and it shall not be necessary to make such warrant returnable at any particular time, but the same may remain in force |