game, and so disputed the jurisdiction of the justices. They held Sect. 12. the claim of right was not sufficient, and convicted :-Held, that the objection was reasonable, and their jurisdiction consequently ousted.

In R. v. Critchlow, 26 W. R. 681, a trespasser in search of game set up as a defence under the Game Act, 1831 (1 & 2 Will. 4, c. 32), s. 30, the leave and licence of the occupier under a parol lease. The occupier denied that the game was reserved; evidence was given to show that it was :-Held, that the defence was not bond file, and therefore the jurisdiction of the justices was not ousted.

Mere bona fide belief in a right, founded on payment for the game, but upon an invalid agreement, is not sufficient to oust the justices' jurisdiction in an information under the Game Act, 1831. See Birnie v. Marshall, 41 J. P. 22; 35 L. T. 373; and, on appeal on another point, 46 L. J. M. C. 6, where it was held that production of a draft lease from the lord of the manor of the shooting over glebe land, without evidence of the right to include the glebe in the lease, was held insufficient. And Brigstock v. Raynor, 40 J. P. 245, and Newcombe v. Frewins, 41 J. P. 581, may also be referred to.

A mere claim by a man of a right as one of the public to fish, supported by very slight evidence, is not such a reasonable claim of right as will oust the jurisdiction of the justices (Reece v. Miller, 8 Q. B. D. 626; 47 J. P. 37: 51 L. J. M. C. 64). In Mann v. Nurse, 17 T. L. R. 569, it was held that the respondent who was charged under the Game Act, 1831 (1 & 2 Will. 4, c. 32), s. 30, with trespassing in pursuit of game, had reasonable grounds for believing that he had a right to shoot upon the land in question and that the jurisdiction of the justices was ousted.

Justice to Judge of Truth of Evidence of Claim.—Justices, on a claim of right being raised before them, are to judge of the truth of the evidence relating to such claim of right, and if they disbelieve it on reasonable grounds they have jurisdiction to deal with the matter of the information (Reeve v. Stoneham, 43 J. P. 732). In Watkins v. Major, L. R. 10 C. P. 662; 33 L. T. 352; 24 W. R. 164; 44 L. J. M. C. 164, it was held that a bona fide claim of right under ordinary circumstances suffices to render a conviction by justices for any criminal offence improper; for they cannot try the existence of a right bona fide set up in answer to a criminal charge made before them. But although where there must be a mens rea to constitute an offence, an honest claim of right, however absurd, will frustrate a summary conviction; yet, where the absence of mens rea is not necessarily a defence, the person who set up a claim of right must show some ground for its assertion, and if he fails to do so is liable to be convicted of the offence charged against him.

Where "Mens Rea" Necessary, absurd Claim Sufficient.—It was further held in the above case that under the Game Acts mens rea was not necessary to constitute an offence. See as to this

NOTE.

Sect. 12.

NOTE.

Morden v. Porter, 7 C. B. 641; 29 L. J. M. C. 213; Adams v. Masters, 24 L. T. 502; and R. v. Derbyshire JJ., 11 W. R. 780 ; and R. v. Latimer, 17 Q. B. D. 359 ; 51 J. P. 184 ; 55 L. J. M. C. 135; 54 L. T. 768; 16 Cox C. C. 70.

Justices may Decide Questions of Title by Statute.-In some cases statutes expressly contemplate the decision of questions by justices relating to title. See R. v. Young and Another, 47 J. P. 519; 52 L. J. M. C. 55, where a person was charged with placing materials in a street contrary to a local improvement Act, he claimed the spot as part of his private land over which the public had no right of way, and set up this as a claim of right ousting the jurisdiction -Held, the power to find whether the place was or was not part of the street was necessarily incident to the jurisdiction, and that the jurisdiction was not ousted.

See also Ex parte Vaughan, L. R. 2 Q. B. 114; 36 L. J. M. C. 17; 15 W. R. 189; 15 L. T. 277 ; 7 B. & S. 902, where the justices had to inquire under 59 Geo. 3, c. 12, s. 24 (The Poor Relief Act, 1819), whether a person had unlawfully intruded himself into a certain tenement belonging to the parish for the use of the poor, and the defendant disputed the title of the parish officers, it was held that as the question of title was, ex necessitate, involved in the matter which the justices had to determine, their jurisdiction was not ousted.

In proceedings under the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), justices have jurisdiction to determine disputed compensation. Under the Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), s. 40, a magistrate may inquire into the title of goods unlawfully detained, and also under the Distress for Rent Act, 1737 (11 Geo. 2, c. 19), as to fraudulent removal of goods, justices may inquire into matters of title.

13. Procedure in case of absence of complainant or defendant.] If at the day and place appointed in and by the summons aforesaid for hearing and determining such complaint or information the defendant against whom the same shall have been made or laid shall not appear when called, the constable or other person who shall have served him with the summons in that behalf shall then declare upon oath in what manner he served the said summons; and if it appear to the satisfaction of any justice or justices that he duly served the said summons, in that case such justice or justices may proceed to hear and determine the case in the absence of such defendant, or the said justice or justices, upon the non-appearance of such defendant as aforesaid, may, if he or they think fit, issue his or their warrant in manner hereinbefore directed, and shall adjourn the hearing of the said complaint or information until the

said defendant shall be apprehended; and when such Sect. 13. defendant shall afterwards be apprehended under such warrant he shall be brought before the same justice or justices, or some other justice or justices of the same county, riding, division, liberty, city, borough, or place, who shall thereupon, either by his or their warrant [10], commit such defendant to the house of correction or other prison, lock-up house, or place of security, or, if he or they think fit, verbally to the custody of the constable or other person who shall have apprehended him, or to such other safe custody as he or they shall deem fit, and order the said defendant to be brought up at a certain time and place before such justice or justices of the peace as shall then be there, of which said order the complainant or informant shall have due notice; or if upon the day and at the 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 complainant 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 until some other day upon such terms as he or they shall think fit, in which case such justice or justices may commit [10] 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 [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; but if both

parties appear, either personally or by their 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.

Appearance upon Illegal Process Cures Irregularity.-The jurisdiction of justices is founded upon information or complaint, but the omission to properly lay such information or complaint does not in any way invalidate the proceedings before the justices, if the defendant be present and waives the irregularity in the

NOTE.

Sect. 13. preliminary process in the absence of any special statutory requirement of an information. See note to s. 1, ante, p. 13, and R. v. Millard, 22 L. J. M. C. 108, there referred to, and R. v. Hughes, 4 Q. B. D. 614; 43 J. P. 556; 48 L. J. M. C. 151; 40 L. T. 685, where S. was arrested and brought before the justices on as illegal a warrant as ever was issued, a warrant signed by a magistrate not only without any written information or oath to justify it, but without any information at all," who having heard the charge and taken evidence in support of it, convicted him without any objection having been taken by S. to the justices' jurisdiction. H., a witness before the justices, was afterwards indicted for perjury, and the jurisdiction of the justices to hear under the circumstances the charge against S. was questioned. It was held that the charge having been made in the presence of S., without any objection on his part, that it was immaterial so far as the jurisdiction of the justices to hear the charge was concerned, whether the accused was before them voluntarily or otherwise, legally or illegally, and that, therefore, H. was rightly convicted of perjury. See also Dixon v. Wells, ante, p. 14, and R. v. Shaw, ante, p. 14.

See also Gray v. Commissioners of Customs, 48 J. P. 343, where G., licensed to sell tobacco in his house in the city of N., was found hawking and selling at a public-house in the county division of T., four miles distant, and was arrested and conveyed before justices at N. next day, but as no justices were then sitting, he was, on his own recognizances, remitted to justices who sat in T. seven days after the offence, and was there convicted. G. objected to the jurisdiction, as the justices were not acting "forthwith" nor "near" the place, within 5 & 6 Vict. c. 93 (The Tobacco Act, 1842), s. 13-Held, that whether G. was illegally arrested or detained or not, the justices of T. having jurisdiction, and he being charged before them, the conviction was valid.

The words "having had such notice as aforesaid " in this section only apply to those cases in which, on the non-appearance of the defendant to the summons, the justices have issued a warrant, and adjourned the hearing until the defendant shall be apprehended.

14. Proceedings at the hearing.] 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 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 Sect. 14. 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 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 [11 and 12] or order [18 and 19] shall afterwards 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 [21], and shall give the defendant in that behalf a certificate thereof [23], 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 on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative,