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have the lawful custody thereof, and who is hereby required to deliver the same) copies of the examinations of the witnesses respectively upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding three halfpence per folio of ninety words (a).

When expedient, though not necessary, for more than one Magistrate to act.]-In every case in which a magistrate is requested to act in the execution of some power alleged to be given by statute, and with which he has not, by practice, become familiar, he will, of course, feel it incumbent on him to consult the provision itself, in order to ascertain what precise authority it confers, and whether he should act alone, or in petty session with some other magistrate. Any bare enumeration, therefore, of cases in which he may be called on to act would, in this place, be superfluous.

With respect to the cases in which, although a magistrate may act alone, it is more expedient that he should proceed in petty session with another or others, it is obviously impossible to suggest any general rules. He will probably think it best to adopt the latter course wherever the question to be raised is likely to affect considerable pecuniary interests, or arises on any new and complicated statute, or embraces any doubtful matter of law: more especially if the decision is final. Cases also frequently arise, to which, although not intricate in themselves, local circumstances of existing or apprehended prejudice attach a fictitious or imaginary importance, which renders them more fit to be discussed in the presence of several magistrates, in order that their administration of justice may not only be impartial, but beyond suspicion.

Right of Parties to be assisted by Attorneys at Petty Sessions, and of the public to attend.]-Much discussion has of late years arisen on the power of magistrates, when sitting in petty session, to exclude the public, and to prohibit the publication of the proceedings; and on the right of parties appearing before them to be assisted by attorneys as their advocates. The distinction governing the first of these questions seems now to be, whether the proceeding is preliminary or final. In cases of preliminary inquiry, as where magistrates sit to determine whether they shall commit or bail a party accused of an offence, it is settled that no person, as one of the public, can claim, as of right, to be present (b). The new act 6 & 7 W. IV. c. 114, allowing counsel to

(a) 6 & 7 W. IV. c. 114.

(b) Cox v. Coleridge, 1 B. & C. 37;

address the jury for prisoners at their trials, does not alter the law in this respect. It is, however, obvious, that there may be occasions in which the purposes of justice require that an investigation of this kind should be private; when these occur, magistrates are justified in excluding the public, and in requiring that the parties who are present shall abstain from publishing any account of the proceedings. And a publication in defiance of such a warning, calculated to defeat the object of the inquiry, or to prejudice the party accused, is a misdemeanor, for which an indictment may be preferred, or a criminal information granted (c). But considering the benefits which frequently arise from the communication of facts as they transpire, and the jealousy with which private inquiries are naturally regarded, the most experienced magistrates refrain from exerting this discretionary power of exclusion, except when the necessity is clear.

When, on the other hand, magistrates sit to adjudicate, as upon a proceeding for a penalty, the place in which they sit is an open court of justice, to which all persons have a right of access, and from which no one may be lawfully removed, so long as he conducts himself with propriety (d). When, therefore, a magistrate, sitting in a petty session with others, to hear an information under 5 Ann. c. 14, for keeping and using a gun to destroy game, caused a person to be removed who claimed a right to be present, he was holden liable to an action of trespass at his suit; Mr. Justice Bayley observing, "The magistrate was proceeding upon a summary conviction, and therefore exercising a judicial authority. He was, as it were, a court of justice for the purpose; and we are all of opinion that it is one of the essential qualities of a court of justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, have a right to be present for that purpose." It was, however, afterwards decided that even on such an occasion, the parties could not claim as of right to appear

S.C.; 2 Dowl. & Ry. 86. See also R. v.
Borron, 3 B. & Ald. 432; Collier v.
Hicks, 2 B. & Adol. 663.

(c) In R. v. Clement, 4 B. & Ald. 218, the session of gaol delivery for Middlesex, at the Old Bailey, ordered that the proceedings of several separate trials for high treason should not be published till the whole of them were concluded. The prisoners had severed in their challenges, being indicted together; two trials took place, and pending the proceedings against the rest, the

defendant published a report of those trials. The Court of Session fined him 5001. for his contempt, which was held right on argument in the Court of King's Bench, and payment was afterwards enforced, after resistance, in the Court of Exchequer. 11 Price, 68: and see Deacon v. Deacon, 2 Russell's R. 607, Eldon, Ch. and a case at the Rolls, Jan. 1839, as to market gardeners removing trees.

(d) Daubney v. Cooper, 10 B. & C. 237.

by an attorney or other person, for the purpose of examining witnesses, and addressing the bench, although they might be attended by professional advisers to assist them, by quietly making suggestions, giving advice, and taking notes, &c. (e).

But now, by the prisoner's counsel act (ƒ), in all cases of summary conviction, persons accused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney.

The magistrates sitting in petty sessions have the right incident to every court of justice, of regulating their own proceedings, and in cases not affected by the statute just mentioned, may decide who shall appear before them as advocates (g), or whether the parties only shall be heard. In all cases of difficulty, however, they will exercise a sound discretion in hearing persons of professional education and skill, as they will probably facilitate the inquiry by conducting it according to the rules of evidence, and by their suggestions assist the magistrates in arriving at the right conclusion. This consideration suggested the last-mentioned provision for limiting the exercise of advocacy to professional men.

Overseers of Poor appointed at Petty Sessions.]-The duty of magistrates in petty sessions as to appointing overseers of the poor, is fixed by 43 Eliz. c. 2, s. 1, and 54 Geo. III. c. 91, s. 1, by which acts the churchwardens of every parish, and four, three, or two substantial householders there, to be nominated yearly on 25th March, or within fourteen days after, under the hand and seal of two justices in the same county, are to be called Overseers of the Poor of the same parish; nor are the magistrates restricted to appoint only householders resident in the parish or township, for by 59 Geo. III. c. 12, s. 6, justices in the respective special (h) sessions for appointment of overseers of the poor, may, on the nomination and at the request of the inhabitants of a parish, assembled in vestry, appoint to that office, with his consent, any person assessed to the relief of the poor thereof, and being a householder resident within two miles from the church or chapel of the parish, or where there shall be none who shall be resident within one mile from the boundary of the parish, though he be not a householder thereof; and it is sufficient in his appointment to describe him by his name and residence (¿).

(e) Collier v. Hicks, 2 B. & Adol. 663.

(f) 6 & 7 W. IV. c. 114, s. 2.

(g) Collier v. Hicks, 2 B. & Adol. 663. (h) See post, Sect. III. of this chapter. (i) Mandamus to justices to appoint

Hearing Cases at Petty Sessions.]-Petty sessions who enter on the hearing of a case must hear it through. Thus where a marriage set up on one side against a man summoned under the vagrant act, for not supporting his children, was disputed on the other, and the two justices, without hearing the evidence in support of the marriage, dismissed the summons, alleging that the question respecting it should be tried in the ecclesiastical court, a mandamus was granted requiring them to hear the complaint (j).

A clerk to justices in petty sessions holds his office at their pleasure, and may be summarily dismissed by one of them without cause assigned (k).

SECTION III.

OF SPECIAL SESSIONS IN DIVISIONS OF COUNTIES, &c.:-WHEN AND IN WHAT MANNER ASSEMBLED—AND HEREIN OF THE GENERAL ANNUAL MEETING UNDER 9 GEO. IV. c. 61, FOR LICENSING INNS, ALE, AND VICTUALLING HOUSES.

Special Session.A special session is a sitting of two or more justices, holden not of their own mere motion and private agreement, but on a special occasion, for the execution of some particular branch of their authority (1), after reasonable notice to all the other magistrates of the hundred, or other division (m) of the county, city, &c., for which it is convened and holden (n); which notice has been served in the legal manner.

Distinguished from Petty Sessions, and enumerated.]-The important distinction between a special and a petty session consists in this, that to constitute a legal special session every magistrate of the division must have had an option presented to him of attending it, and taking part in the proceedings. The meetings of justices in petty sessions are notwithstanding frequently confounded with their assemblies in special sessions and sometimes by the legislature itself (o).

overseers, R. v. Watts, Horton, 1 T. R. 374; R. v. Salop (Justices), 3 B. & Adol. 910; the case of Oldbury township in Hales Owen, a parish situate partly in Shropshire, and partly in Worcestershire.

(j) R. v. Justices of Cumberland, 4 Ad. & El. 695.

(k) Ex parte Sandys, 4 B. & Adol. 863.

(1) 2 Hawk. P. C. c. 8, s. 18, Edit. 1795.

(m) Viz. legal division: e. g. those of Lincolnshire, Evans v. Stevens, 4 T. R. 224-459. Query as to legal existence of what are usually called divisions of counties, ibid.

(n) See per Bayley, J. in R. v. Justices of Worcestershire, 2 B. & Ald. 228; 5 Burn's J. 28th Edit. 623.

(0) See the term " · Special petty session" in the Jury Act, 6 Geo. IV. c. 50, s. 9, 45, post; also in the act regulating liability of hundreds for malicious damage,

Before considering the legal mode of giving the requisite notices of holding a special session, we will direct our attention to the different special sessions required by law to be holden at particular periods; as for appointing overseers of the poor by 43 Eliz. c. 2, and 54 Geo. III. c. 91, on the 25th March, or within fourteen days after (p), and for licensing alehouses and victualling houses to sell exciseable liquors by retail, to be drunk or consumed on the premises, on some day between 20th August and 14th September inclusive, except in Surrey and Middlesex, where the meetings must be held within the first ten days of March; and for appointing the days of holding not less than eight nor more than twelve special sessions in the year, for executing the purposes of the highway act, which, by sec. 45 of stat. 5 & 6 W. IV. c. 50, are to be so appointed at a special sessions to be held within fourteen days after every 20th March. In like manner by the new game act, 1 & 2 W. IV. c. 32, a special session is to be held annually in the month of July, in every division or district, for the purpose of granting licenses to deal in game, of the holding of which session seven days' notice is to be given to each of the justices acting for such division or district, at which, or at some adjournment thereof, licenses may be granted by the majority of the justices, not being less than two, in the form pointed out by the schedule (9). Other special sessions may be convened on such occasions as require them: e. g. for proceedings under the general enclosure act, forming lists of jurors (r), &c. Convening by Precept.]-Where the act which empowers or directs a special session to be holden, also prescribes the particular manner in which it is to be convened, &c., its provisions must be strictly complied with; but where, as is more usual, no express direction is given, a special session may be convened under a precept issued to the chief constable by any two justices, by the custos rotulorum of the county, or by the clerk of the peace or his deputy. The chief constable, on receiving such precept, issues his precepts to the petty constables. These precepts must expressly state the purpose for which the special

3 Geo. IV. c. 33, s. 2; Reg. v. Rawlins, 8 C. & P. 339. Act provided to be done at petty sessions, if done by two justices in fact, is good, though laid as done at special sessions. See Newman v. Bendyshe (E. 1839), 2 P. & D. 340.

(p) The last edition of this work states this duty as that of a "special" sessions; and 59 Geo. III. c. 12, s. 6, speaks of the sessions held for this purpose as such. But as 43 Eliz. c. 2, vested the power of appointing overseers in "two

justices," without attaching the terms "in special session," it might well have been questioned before 59 Geo. III. c. 12, whether this was not one of the instances in which petty and special sessions are confounded.

(q) See post, Chap. VI. tit. Game, Offences to; and Chap. XII. s. 4, Of Convictions.

(r) See post, tit. Jurors, Sec. VIII. and 6 Geo. IV. c. 50. s. 9, 42, 45.

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