view to an adjudication thereon, they thereby gain jurisdiction to determine the case, and the party injured cannot afterwards by compromising the case take away that jurisdiction. In Nicholson v. Booth and Naylor, 52 J. P. 52; 57 L. J. M. C. 43, it was held that a court of summary jurisdiction has no power to convict of a common assault unless the party aggrieved or some one on his behalf complains of the assault with a view to the adjudication of the court upon it. Cases of common assault stand on a somewhat peculiar footing because of the certificate of release from further proceedings provided by the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), s. 43. It seems, therefore, probable that prosecutors or complainants can be dealt with compulsorily under the powers of this section. As to witnesses in bastardy cases, see R. v. Flavell, 14 Q. B. D. 324; 49 J. P. 406; 52 L. T. 133; 33 W. R. 343. Defendant or Wife or Husband a Competent Witness.-By the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36) (set out in Appendix, post), every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. For the various provisoes, see ss. 1, 6. Under the Gaming House Act, 1854 (17 & 18 Vict. c. 38), s. 5, the justice may require any of the persons apprehended to be sworn and give evidence; by s. 6 of the same Act he may be indemnified as therein mentioned. As to the Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), see note to s. 14, post. All witnesses are to be examined on oath or affirmation. See s. 15, post. Witness out of Jurisdiction.-As to summons of witness when out of jurisdiction of court of summary jurisdiction, see S. J. Act, 1879, s. 36, post. Additional powers are given to metropolitan magistrates under the Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), s. 22; and to aldermen of the City of London by the Metropolitan Police Courts Act, 1840 (3 & 4 Vict. c. 84), and s. 34 of this Act, post. Refusal of Witness to give Evidence.-As to refusal of a witness to answer a question on the ground that it may tend to criminate him, see Ex parte Reynolds, In re Reynolds, 20 Ch. D. 294; 46 J. P. 533; 46 L. T. 508; 51 L. J. Ch. 756; 15 Cox, 108; 30 W. R. 651 (approving and following R. v. Boyes, 1 B. & S. 311), where the whole subject is fully discussed in the judgments of the Court of Appeal. In that case it was laid down that where a witness refuses to answer a question on the ground that his answer might tend to criminate himself, his mere statement of Sect. 7. NOTE. Sect. 7. his belief that his answer will have that effect is not enough to excuse him from answering, but the court must be satisfied from the circumstances of the case and the nature of the evidence which the witness is called upon to give, that there is reasonable ground to apprehend danger to him from his being compelled to answer ; but if it is once made to appear that the witness is in danger, great latitude should be allowed to him in judging for himself of the effect of any particular question; subject, however, to that reservation, the judge is bound to insist on the witness answering, unless he is satisfied that the answer will tend to place him in peril. Other instances in which a witness is entitled to refuse to answer are (1) a solicitor touching any communication between himself and his client in the course of his employment, except as to any communications made in furtherance of any criminal purpose (see Follett v. Jeffreys, 1 Sim. (N.s.) 17; Charlton v. Coombes, 32 L. J. Ch. 284; and R. v. Cox and Railton, 14 Q. B. D. 153; 49 J. P. 374; 54 L. J. M. C. 41; 15 Cox C. C. 611; 33 W. R. 396; 52 L. T. 25); in this last case it was laid down that all communications between a solicitor and his client are not privileged from disclosure, but only those passing between them in professional confidence and in the legitimate course of the professional employment of the solicitor. STEPHEN, J., in delivering the judgment of the court, said: "The question is whether if a client applies to a legal adviser for advice intended to facilitate or guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged. We are of opinion that no such privilege exists." Any fact observed showing that any crime or fraud has been committed by his client, or any fact within his own knowledge which he was not made acquainted with by his client, are excepted from this privilege (Brown v. Foster, 1 H. & N. 736; Annesley v. Anglesea, 17 St. Tr. 1223; and Minet v. Morgan, L. R. 8 Ch. App. 361). (2) Possibly a clergyman may legally refuse to disclose professional and confidential communications. See on this subject Stephen's Digest of Law of Evidence (5th ed.), pp. 129, et seq. On the subject generally of the power of justices to compel evidence, see the article at 66 J. P. 402, before referred to. 8. Complaints not required to be in writing.] In all cases of complaints upon which a justice or justices of the peace may make an order for the payment of money or otherwise it shall not be necessary that such complaint shall be in writing, unless it shall be required to be so by some particular Act of Parliament upon which such complaint shall be framed. See note to s. 1, ante, p. 3. There are a few statutes in which a complaint has to be on oath, as, for instance, the Lighting and Watching Act, 1833 (3 & 4 Will. 4, c. 90), s. 56. 9. Variances between informations.] In all cases of informations for any offences or acts punishable upon summary conviction any variance between such information and the evidence adduced in support thereof as to the time at which such offence or act shall be alleged to have been committed shall not be deemed material, if it be proved that such information was in fact laid within the time limited by law for laying the same; and any variance between such information and the evidence adduced in support thereof as to the parish or township in which the offence or act shall be alleged to have been committed shall not be deemed material, provided that the offence or act be proved to have been committed within the jurisdiction of the justice or justices by whom such information shall be heard and determined; and if any such variance, or any variance in any other respect between such information and the evidence. adduced in support thereof, shall appear to the justice or justices present and acting at the hearing to be such that the party charged by such information has been thereby deceived or misled, it shall be lawful for such justice or justices upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day, and in the meantime to commit [10] the said defendant to the house of correction or other prison, lock-up house, or place of security, or to such other custody as the said justice or justices shall think fit, or to discharge him upon his entering into a recognizance [36], 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. Information to be in Writing.-This section deals exclusively with proceedings upon an information. It has been stated, ante, that though the S. J. Acts do not in terms require a written information from the fact of Form [1] of the Consolidated Forms of 1886, and the provisions as to variance in s. 1 of this Act, it is to be inferred that a written information was intended. See note to s. 1, ante, and R. v. Millard, ante, p. 4. Some statutes, however, require the information to be in writing. See Basten v. Carew, 3 B. & C. 649; 5 D. & R. 558. Sect. 8. NOTE. Sect. 9. NOTE. A variance between an information and the evidence adduced in support of it shall not be deemed material if it be proved that such information was in fact laid within the time limited by law for laying the same, see s. 11, post. Legal Time.-See the Statutes (Definition of Time) Act, 1880 (43 & 44 Vict. c. 9), and note to s. 11, post. The law takes no notice of fractions of a day excepting in cases where there are conflicting rights. See Tomlinson v. Bullock, L. R. 4 Q. B. D. 230 ; 43 J. P. 508 ; 48 L. J. M. C. 95 ; 40 L. T. 459. Variance in Time.-In the case of Onley v. Gee, 25 J. P. 342; 4 L. T. 338; 7 Jur. 570; 30 L. J. M. C. 222, an example is to be found of variance between the time laid in the information for the commission of the offence charged and that proved in evidence. A. was charged with keeping a betting-house on October 5th, and on divers days between that day and November 16th. Offence proved to have been committed on November 8th, and no proof given of a similar offence on any other day. The conviction was affirmed. Recognizances may now be enforced by a court of summary jurisdiction. See S. J. Act, 1879, s. 9, post. Limitation. As a general rule, the various statutes giving justices jurisdiction to deal summarily with offences, etc., limit the time for laying information or complaint to six months from the commission or cause of complaint arising. There are, however, some exceptions to this rule, a list of which follows: The Adulteration of Seeds Act, 1869 (32 & 33 Vict. c. 112), s. 7. The County Police Act, 1839 (2 & 3 Vict. c. 93), ss. 8, 12. See The Cruelty to Animals Act, 1849 (12 & 13 Vict. c. 92), s. 14. The Game Act, 1831 (1 & 2 Will. 4. c. 32), s. 41. The London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), s. 38. The Sale of Food and Drugs Acts, 1875 to 1899. See 62 & The Special Constables Act, 1831 (1 & 2 Will. 4, c. 41), s. 11. The Vaccination Acts, 1867 and 1871 (30 & 31 Vict. c. 84; 34 & 35 Vict. c. 98), s. 11. The Volunteer Act, 1863 (26 & 27 Vict. c. 65), s. 27. As to jurisdiction of justices, see note to s. 6, ante. In the case of Charles v. Mortgagees of Plymouth Works, 55 J. P. 469; 60 L. J. M. C. 20, it was held that the six months' limit prescribed by the S. J. Act, 1848, did not apply to disputes under the Employers and Workmen Act, 1875. In Radcliffe v. Bartholomew, [1892] 1 Q. B. 161; 56 J. P. 263; 61 L. J. M. C. 63; 65 L. T. 677, a case under 12 & 13 Vict. c. 92, 8. 2 (The Cruelty to Animals Act, 1849), an offence was alleged to have been committed on May 30th, and a complaint was laid on June 30th, it was held that the information was laid in time. In Langridge v. Hobbs, [1901] 1 K. B. 497; 70 L. J. K. B. 362; 84 L. T. 319; 17 T. L. R. 237, it was held that the offence of neglecting to cause a child to be vaccinated under s. 16 of the Vaccination Act, 1867 (30 & 31 Vict. c. 84), as amended by s. 1 (1) of the Vaccination Act, 1898 (61 & 62 Vict. c. 49), is complete at the expiration of six months from the birth of the child. Therefore proceedings charging an offence in respect of such neglect under s. 29 of the Vaccination Act, 1867, must be taken within twelve months after the expiration of the above-mentioned period of six months. A prosecution is instituted under the Sale of Food and Drugs Acts by the laying of an information and the issue of a summons, and not by the service of the summons (Beardsley v. Giddings [1904] 1 K. B. 847; 68 J. P. 222; 73 L. J. K. B. 378 ; 20 T. L. R. 315). And in Brooks v. Bagshaw, 68 J. P. 514; 73 L. J. K. B. 839 20 T. L. R. 655, it was held that the prosecution was "instituted if the information was laid within the twenty-eight days mentioned in s. 19 (1) of the Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51), though the summons was not issued till after that time. 10. Complaints and informations not required to be on oath-Complaints, etc. to be for one matter only.] Every such complaint upon which a justice or justices of the peace is or are or shall be authorised by law to make an order, and every information for any offence or act punishable upon summary conviction, unless some particular Act of Parliament shall otherwise require, may respectively be made or laid without any oath or affirmation being made of the truth thereof, except in cases of informations where the justice or justices receiving the same shall thereupon issue his or their warrant in the first instance to apprehend the defendant as aforesaid ; and in every such case where the justice or justices shall issue his or their warrant in the first instance the matter of such information shall be substantiated by the oath or affirmation of the informant, or by some witness or witnesses on his behalf, before any such warrant shall Sect. 9. NOTE. |