Note to It may be added in this place, that a person who is comSect. 14. mitted to prison in default of distress for non-payment of a sum of money adjudged to be paid by a court of summary jurisdiction is a criminal prisoner within the meaning of the Prisons Act, 1865, s. 5. Kennard v. Simons, 50 L. T. (N.S.) 28.

Prosecutors

and com

certain

deemed

competent

witnesses, and examined upon oath, &c.

15. And be it enacted, that every prosecutor of plainants in any such information, not having any pecuniary incases to be terest in the result of the same, and every complainant in any such complaint as aforesaid, whatever his interest may be in the result of the same, shall be a competent witness to support such information or complaint respectively; and every witness at any such hearing as aforesaid shall be examined upon oath or affirmation, and the justice or justices before whom any such witness shall appear for the purpose of being so examined shall have full power and authority to administer to every such witness the usual oath or affirmation.

Competency of informer

or prosecutor.

Power to justices to adjourn the hearing of cases, and

commit defendant, or

suffer him to go at large, or

A distinction is here made between the competency of an informer or prosecutor of an information as a witness, and the competency of a complainant. The former is competent only when he has no pecuniary interest in the result of the case, and the latter is competent as a witness whatever his interest in the result may be. But when the particular statute under which the proceedings are taken makes the informer competent as a witness notwithstanding he is entitled to a portion of the penalty, his competency is not taken away by the present statute, but remains as before.

16. And be it enacted, that before or during such hearing of any such information or complaint it shall be lawful for any one justice, or for the justices present, in their discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of

his own

zance;

the party or parties, or their respective attornies or Sect. 16. agents then present, and in the meantime the said discharge justice or justices may suffer the defendant to go at him upon large, or may commit (D.) him to the common recognigaol or house of correction or other prison, lock-up house, or place of security in the county, riding, division, liberty, city, borough, or place for which such justice or justices shall be then acting, or to such other safe custody as the said justice or justices shall think fit, or may discharge such defendant upon his entering into a recognizance (E.), with or without surety or sureties, at the discretion of such justice or justices, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned; and if at the time or place to which such hearing or further hearing shall be so adjourned either or both of the parties shall not appear personally, or by his or their counsel or attornies respectively, before the said justice or justices, or such other justice or justices as shall then be there, it shall be lawful for the justice or justices then there present to proceed to such hearing or further hearing as if such party or parties were present; or if the prosecutor or complainant shall not appear, the said justice or justices may dismiss such information or complaint, with or without costs, as to such justices shall seem fit: Provided always, but if he that in all cases where a defendant shall be dis- re-appear, charged on recognizance as aforesaid, and shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice or justices who shall have taken the said recognizance, or any other justice or justices who may then be there present, upon certifying (F.) on the back of the recog

fail to

may trans

mit the re

to the

Sect. 16. nizance the non-appearance of such accused party, the justice may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, cognizance borough, or place within which such recognizance clerk of the shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primâ facie evidence of such non-appearance of the said defendant.

peace.

Adjournment.

How when informant

from case.

Any one justice, or those who are present, may adjourn the hearing to a certain time and place to be appointed and stated in the presence and hearing of the party or parties then present, or of their attornies or agents. If the justices should have no reason to fear that the defendant will not appear at the adjourned hearing they may suffer him to go at large without recognizances. In other cases they may commit him, or they may discharge him upon recognizance, with or without sureties, to appear at the time and place to which the hearing shall be adjourned, and if he then fail to appear the recognizance may be estreated. If at the time and place appointed for the adjourned hearing neither of the parties appear, the justices may proceed as if they were both present, and adjudicate upon the case; and it will be proper that they adopt this course when they have reason to suppose that an improper compromise of the matter of information or complaint is intended. If, on the other hand, the prosecutor or complainant do not appear, the justices may dismiss the information or complaint, with or without

costs.

Further with regard to adjournment, see 42 & 43 Vict. c. 49, s. 20 (11), post.

It is laid down in the case of Tunnicliffe v. Tedd, 16 L. J. withdraws (N.S.) M. C. 67; 12 J. P. 249, that an information is the commencement of a criminal proceeding analagous to an indictment; that the summons is the act of the magistrate on behalf of the public; and that the party who brings a criminal proceeding cannot withdraw from it, leaving it pending, but, on the contray, that the party charged has a right to force it on to a conclusion; and that if, at the time for concluding the case, the informant offers no evidence in support of his charge, it ought to be dismissed, and that such a dismissal is a hearing. In that case the informant attended

the return of the summons, and, on the defendant pleading Note to not guilty, withdrew from the case.

The same principle has been held to apply to a case where the plaintiff did not appear on the return of the summons, but previously sent notice to the defendant that the summons was withdrawn, and where the magistrate dismissed the summons on the application of the defendant, and granted a certificate of dismissal. Bradshaw v. Vaughton, 30 L. J. (N.S.) 93; S. nom Vaughton, app., Bradsham, resp., 9 C. B. (N.s.) 103; 7 Jur. (N.s) 468.

By a railway Act penalties for breach of bye-laws were recoverable before a justice of the peace, and officers of the railway company were empowered to seize offenders under certain circumstances, and to convey them before a justice without a warrant, such justice being "empowered and required to proceed immediately to the conviction or acquittal of such offender." Defendant being brought before justices, charged with an offence against a bye-law of the company, it was held that although the Act constituting the offence gave no power to the justices to remand the accused, yet the justice was authorized, if in his discretion he thought fit, to commit defendant under a warrant pursuant to this section, to the house of correction; and this, even though the defendant had paid his fare, which he was charged with not having done. Gelen v. Hall, 27 L. J. (N.S.) M. C. 78; 2 H. & N. 379; 21 J. P. 710.

Sect. 16.

By 12 & 13 Vict. c. 45, s. 7, post, power is given to the Amendquarter sessions, on the trial of any appeal against any ment. order or judgment made or given by any justice or justices, to amend such order or judgment, and to adjudicate thereupon as if no omission or mistake had occurred. The statute refers to "orders" and "judgments," but does not expressly name a commitment as being within the power of the court to amend, and it may therefore be a doubtful point how far a commitment is within the meaning of the statute. A commitment is in the nature of an order, for the justices thereby "order" the constable to take, and the gaoler to receive the prisoner into the gaol, and there him imprison. If this be the correct view then any omission or mistake in a commitment, as well as in any other order of justices, may be amended by the sessions.

Under the above enactment the High Court of Justice held that the quarter sessions had the power to amend a conviction by substituting two months' imprisonment for three months, which was a clerical error. Reg. v. Walker, 45 J. P.

Sect. 17.

Form of convictions and orders.

Convictions.

17. And be it enacted, that in all cases of conviction where no particular form of such conviction is or shall be given by the statute creating the offence or regulating the prosecution for the same, and in all cases of conviction upon statutes hitherto passed, whether any particular form of conviction have been therein given or not, it shall be lawful for the justice or justices who shall so convict to draw up his or their conviction on parchment or on paper in such one of the forms of conviction (I. 1-3) in the schedule to this Act contained as shall be applicable to such case, or to the like effect; and where an order shall be made, and no particular form of order is or shall be given by the statute giving authority to make such order, and in all cases of orders to be made under the authority of any statutes hitherto passed, whether any particular form of order shall therein be given or not, it shall be lawful for the justice or justices by whom such order is to be made to draw up the same in such one of the forms of orders (K. 1-3) in the schedule to this Act contained as may be applicable to such case, or to the like effect; and in all cases where by any Act of parliament authority is given to commit a person to prison, or to levy any sum upon his goods or chattels by distress, for not obeying any order of a justice or justices, the defendant shall be served with a copy of the minute of such order before any warrant of commitment or of distress shall issue in that behalf, and such order or minute shall not form any part of such warrant of commitment or of distress.

Formerly there was much variance in the mode in which convictions and orders were drawn up; and even though