If defendant appear and complainant, &c.,

does not, Justice may dismiss the complaint, &c.,

adjourn hearing

and commit or discharge defendant upon recognizance;

Justices of the Peace, &c.

shall have due notice, or if upon the day and place so appointed as aforesaid such defendant shall attend voluntarily in obedience to the summons in that behalf served upon him, or shall be brought before the said Justice or Justices by virtue of any warrant, then if the comor, at discretion, plainant or informant having had such notice as aforesaid do not appear by himself, his counsel or attorney, the said Justice or Justices shall dismiss such complaint or information, unless for some reason he or they shall think proper to adjourn the hearing of the same unto some other day, upon such terms as he or they shall think fit, in which case such Justice or Justices may commit (D) the defendant in the meantime to the house of correction or other prison, lock-up house or place of security, or to such other custody as such Justice or Justices shall think fit, or may discharge him 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 shall be so adjourned, and if such defendant shall not afterwards appear at the time and reappear the Jus- place mentioned in such recognizance, then the said Justice who shall tice may transmit have taken the said recognizance or any Justice or Justices who may then there be present, upon certifying (F) on the back of the recognizance the non-appearance of the defendant, may transmit such recognizance to the Clerk of the Peace, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such non-appearance of the said defendant; but if both parties appear, either personally or by their appear Justice to respective counsel or attorneys, before the Justice or Justices who are to hear and determine such complaint or information, then the said Justice or Justices shall proceed to hear and determine the same.

but if he fail to

the recognizance

to the Clerk of the Peace

If both parties

mine the case

Proceedings on the hearing of complaints and informations

13. And be it enacted that where such defendant shall be present at such hearing the substance of the information or complaint shall be stated to him, and he shall be asked if he have any cause to show why he should not be convicted or why an order should not be made against him, as the case may be, and if he thereupon admit the truth of such information or complaint and show no cause or no sufficient cause why he should not be convicted or why an order should not be made against him, as the case may be, then the Justice or Justices present at the said hearing shall (if they see no sufficient reason to the contrary) convict him or make an order against him accordingly, but if he do not admit the truth of such information or complaint as aforesaid, then the said Justice or Justices shall proceed to hear the prosecutor or complainant and such witnesses as he may examine, and such other evidence as he may adduce in support of his information or complaint respectively, and also to hear the defendant and such witnesses as he may examine, and such other evidence as he may adduce in his defence, and also to hear such witnesses as the prosecutor or complainant may examine in reply if such defendant shall have examined any witnesses or given any evidence other than as to his the defendant's general character; but the prosecutor or complainant shall not be entitled to make any observations in reply upon the evidence given by the defendant, nor shall the defendant be entitled to make any observations in reply upon the evidence given by the prosecutor or complainant in reply as aforesaid; and the said Justice or Justices having heard what each party shall have to say as aforesaid and the

Justices of the Peace, &c.

viction to Clerk of the Peace

witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order upon the defendant, or dismiss the information or complaint, as the case may be, and if he or they convict or make an order against the defendant, a minute or memorandum thereof shall then be made, for which no fee shall be paid, and the conviction (I 1, 3) or order (K 1, 3) shall Return of conafterwards be drawn up by the said Justice or Justices in proper form under his or their hand and seal or hands and seals, and he or they shall cause the same to be lodged with the Clerk of the Peace to be by him filed among the records of the General Quarter Sessions of the Peace, or if the said Justice or Justices shall dismiss such information or complaint, it shall be lawful for such Justice or Justices, if he or they shall think fit, being required so to do, to make an order of dismissal of the same (L), and shall give the defendant in that behalf a certificate thereof (M), which said certificate afterwards, upon being produced without further proof, shall be a bar to any subsequent information or complaint for the same matters respectively against the same party: Provided always that if the information or complaint in any such case shall negative any exemption, exception, proviso or condition in the Statute or Ordinance on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence if he would have the advantage of the same.

14. And be it enacted that every prosecutor of any such information, not having any pecuniary interest in the result of the same, and every such prosecutor having a pecuniary interest in the result of the same, who under any Act or Acts or Ordinance or Ordinances, is rendered a competent witness notwithstanding such interest, 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.

15. 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 his or their discretion to adjourn the hearing of the same to a certain time or place to be then appointed and stated in the presence and hearing of the party or parties or their respective attorneys or agents then present, and in the meantime the said Justice or Justices may suffer the defendant to go at large or may commit (D) him (in any case where a committal can now be made) to the common gaol or house of correction or other prison, lock-up house or place of security in the district or place for which such Justice or Justices shall be then acting or to such other 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

Proviso as to exceptions in information or complaint

Prosecutors and certain cases to be deemed comand examined upon oath, &c.

complainants in

petent witnesses

Power to Justices

to adjourn the hearing of cases

and commit suffer him to go at large, or dishis own

defendant or

charge him upou

recognizance;

but if he fail to reappear the Justice may transmit the recognizance to the Clerk of the Peace

Form of convictions and orders

Power to Justice to award costs

shall be specified in conviction or order of dismissal, and may be recovered by distress

Justices of the Peace, &c.

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 attorneys 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 that in all cases where a defendant shall be discharged on recognizance as aforesaid, and shall not afterwards appear at the time or place mentioned in such recognizance, then the said Justice or Justices who shall have taken the said recognizances or any other Justice or Justices who may then be there present, upon certifying (F) on the back of the recognizance the non-appearance of such accused party, may transmit such recognizance to the Clerk of the Peace of the place within which such recognizance 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.

16. 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 or Ordinance creating the offence or regulating the prosecution for the same, and in all cases of conviction upon Statutes or Ordinances hitherto passed, whether any particular form of conviction has 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 Ordinance 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 or Ordinance giving authority to make such order, and in all cases of orders to be made under the authority of any Statutes or Ordinances 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 Ordinance contained, as may be applicable to such case or to the like effect; and in all cases where by any Act or Ordinance 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.

17. And be it enacted that in all cases of summary conviction or of orders made by a Justice or Justices of the Peace, it shall be lawful for the Justice or Justices making the same, in his or their discretion, to award an order in and by such conviction or order that the defendant shall pay to the prosecutor or complainant respectively such costs as to such Justice or Justices shall seem just and reasonable in that behalf; and in cases where such Justice or Justices, instead of convicting or making an order as aforesaid, shall dismiss the information

Justices of the Peace, dc.

or complaint, it shall be lawful for him or them, in his or their discretion, in and by his or their order of dismissal, to award and order that the prosecutor or complainant respectively shall pay to the defendant such costs as to such Justice or Justices shall seem just and reasonable; and the sums so allowed for costs shall in all cases be specified in such conviction or order of dismissal aforesaid, and the same shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to be paid in and by such conviction or order is to be recoverable; and in cases where there is no such penalty or sum to be thereby recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of such distress, by imprisonment, with or without hard labour, for any time not exceeding one calendar month, unless such costs shall be sooner paid.

18. And be it enacted that where a conviction adjudges a pecuniary penalty or compensation to be paid, or where an order requires the payment of a sum of money, and by the Statute or Ordinance authorising such conviction or order, such penalty, compensation, or sum of money is to be levied upon the goods and chattels of the defendant by distress and sale thereof, and also in cases where, by the Statute or Ordinance in that behalf, no mode of raising or levying such penalty, compensation, or sum of money, or of enforcing the payment of the same, is stated or provided, it shall be lawful for the Justice or Justices making such conviction or order, or for any Justice of the Peace for the said Colony, to issue his or their warrant of distress (N 1, 2) for the purpose of levying the same, which said warrant of distress shall be in writing under the hand and seal of the Justice making the same: Provided always that whenever it shall appear to any Justice of the Peace to whom application shall be made for any such warrant of distress as aforesaid, that the issuing thereof would be ruinous to the defendant and his family, or wherever it shall appear to such Justice, by the confession of the defendant or otherwise, that he hath no goods or chattels whereon to levy such distress, then and in every such case it shall be lawful for such Justice, if he shall deem fit, instead of issuing such warrant of distress, to commit such defendant to the house of correction, or if there be no house of correction, then to the common gaol, there to be imprisoned, with or without hard labour, for such time and in such manner as by law such defendant might be so committed in case such warrant of distress had issued, and no goods or chattels could be found whereon to levy such penalty or sum and costs aforesaid.

may suffer de

large or order

19. And be it enacted that in all cases where a Justice of the Justice, after Peace shall issue any such warrant of distress, it shall be lawful for issuing warrant, him to suffer the defendant to go at large, or verbally, or by a written fendant to go at warrant in that behalf, to order the defendant to be kept and detained him into custody in safe custody until return shall be made to such warrant of distress, unless such defendant shall give sufficient security by recognizance or otherwise, to the satisfaction of such Justice, for his appearance before him at the time and place appointed for the return of such warrant of distress, or before such other Justice or Justices for the said Colony as may then be there: Provided always that in all cases where a defendant shall give security by recognizance as aforesaid, and shall not after

until return be made, unless he gives security by recognizance, but appear the Jusmit the recognizance to Peace

if he fail to re

tice may trans

the Clerk of the

In default of

sufficiency of

distress Justice

defendant to

prison

Justices of the Peace, &c.

wards appear at the time and place in such recognizance mentioned, then the said Justice who shall have taken the said recognizance, or any Justice or Justices who may then be there present, upon certifying (F) on the back of the recognizance the non-appearance of the defendant, may transmit such recognizance to the Clerk of the Peace, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primâ facie evidence of such nonappearance of the said defendant.

20. And be it enacted that if at the time and place appointed for the return of any such warrant of distress, the Constable who shall

may commit the have had the execution of the same shall return (N 3) that he could find no goods or chattels, or no sufficient goods or chattels whereon he could levy the sum or sums therein mentioned, together with the costs of or occasioned by the levying of the same, it shall be lawful for the Justice of the Peace before whom the same shall be returned to issue his warrant of commitment (N 4) under his hand and seal, directed to the same or any other Constable, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such Constable to convey such defendant to the house of correction, or if there be no house of correction, then to the common gaol, and there to deliver him to the Keeper thereof, and requiring such Keeper to receive the defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep him to hard labour in such manner and for such time as shall have been directed and appointed by the Statute or Ordinance on which the conviction or order mentioned in such warrant of distress was founded, unless the sum or sums adjudged to be paid and all costs and charges of the distress and also the costs and charges of the commitment and conveying of the defendant to prison if such Justice shall think fit so to order (the amount thereof being ascertained and stated in such commitment) shall be sooner paid.

In all cases of penalties, convictions, or

orders, where the Statute provides no remedy in default of distress, Justice may commit

defendant to prison

Power of Justice

21. And whereas by some Acts or Ordinances Justices of the Peace are authorised to issue warrants of distress to levy penalties or other sums recovered before them by distress and sale of the offender's goods, but no further remedy is thereby provided in case no sufficient distress be found whereon to levy such penalties; be it therefore enacted that in all such cases and in all cases of convictions or orders where the Statute or Ordinance on which the same are respectively founded provides no remedy in case it shall be returned to a warrant of distress thereon that no sufficient goods of the party against whom such warrant shall have been issued can be found, it shall nevertheless be lawful for the Justice to whom such return is made or to any other Justice of the Peace for the said Colony if he or they shall think fit by his warrant as aforesaid to commit the defendant to the house of correction, common gaol or lock-up house as aforesaid for any term not exceeding three calendar months unless the sum or sums adjudged to be paid and all costs and charges of the distress and of the commitment and conveying the defendant to prison (the amount thereof being ascertained and stated in such commitment) shall be sooner paid.

22. And be it enacted that in all cases where the Statute or to order commit- Ordinance by virtue of which a conviction for a penalty or compensation

ment in the first