the case in the "Order-Book." And if either party shall require it, a certificate (Form I. a) of any order so made (signed by the justice who shall have made the same; or by any other justice at the same Petty Sessions) shall be delivered to him at any time; and such certificate shall operate to all intents, as a good form of conviction or order, as the case may be, for any purpose for which any form of conviction or order may now be by law required. And in case of a dismissal when the same shall be stated therein by the justice to have been a dismissal on the merits, or that any assault was of a trifling or justifiable nature (and which he is thereby required to state, if the case be so), such certificate, upon being produced, shall be a bar to any subsequent information or complaint for the same matter against the same party; and in any such case, such certificate shall, on proof of the signature of the justice to the same, be received as good evidence of the conviction. or order in all Courts of Justice.

By the Criminal Justice Act, 1855 (18 & 19 Vict. c. 126), every person who obtains a certificate of dismissal, or is convicted under that Act, shall be released from all further or other criminal proceedings for the

same cause.

By the Larceny Act, 1861 (24 & 25 Vict. c. 96, s. 109), in case any person convicted of any offence punishable upon summary conviction by virtue of that Act shall have paid the sum adjudged to be paid, together with costs, under such conviction, or should have received a remission thereof from the Crown, or from the Lord-Lieutenant in Ireland, or shall have suffered the imprisonment awarded for non-payment thereof, or the imprisonment adjudged in the first instance, or shall have been discharged from his conviction by any justice under sect. 108, in every such case he shall be released from all further or other proceedings for the same cause.

By the 24 & 25 Vict. c. 100, ss. 44 & 45, if the justices upon the hearing on the merits of any case of assault and battery where the complaint was preferred by or on behalf of the party aggrieved under either sections 42 or 43 of that statute, shall deem the offence not to be proved, or shall find the assault or battery to be so trifling as not to merit any punishment and shall accordingly dismiss the complaint, they are directed forthwith to make out a certificate of dismissal, and deliver it to the defendant, and this will operate as a release from all further or other proceedings civil or criminal for the same offence; or if the defendant in any complaint, such as is mentioned in sects. 42 & 43 or 44, having been convicted, shall have paid the whole sum adjudged to be paid, or shall have suffered the imprisonment awarded, he shall be released from all further proceedings civil or criminal for the same

cause.

The granting of the certificate is a ministerial and not a judicial act, and the magistrate is bound to grant it when applied for by the defendant; and he should give the certificate, whether the application is made at once, or in the absence of the complainant.

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Forthwith" in above section does not mean that the certificate is to be granted "forthwith" upon the dismissal of the complaint, but "forthwith" upon the application of the defendant (Hancock v. Somes, 1 El. & El. 795).

By the Licensing Act (Ireland), 1872, s. 59, "nothing in this Act shall prevent any person from being liable to be indicted or punished, so that he be not punished twice for the same offence."

Under the Interpretation Act (52 & 53 Vict. c. 63, s. 33) "where an act or omission constitutes an offence under two or more Acts; or both under an Act and at Common Law, whether such Act was passed before or after the commencement of this Act, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of these Acts, or at Common Law, but shall not be liable to be punished twice for the same offence."

In the case of Sims v. Pay, 58 L. J. M. C. 39, it was held that a licensed person who has been convicted of an offence against the Betting Act, 1853, cannot on the same facts be convicted of an offence of "suffering gaming " under the Licensing Act, 1872.

In the case of McManus v. Meath JJ. (1893), 27 I. L. T. R. 127, it was held that a publican, harbouring a constable while on duty, and on the same occasion supplying him with drink, may be convicted of two separate offences under sect. 16, subsects. 1 & 2 of the Licensing Act (Ireland), 1872, the offences being entirely distinct in their nature.

In the case of McHugh v. Curtin (1903), 3 N. I. J. R. 250, it was held that each sale during prohibited hours constitutes a separate and distinct offence; and accordingly a publican was held to have been rightly convicted on four charges of four separate sales on Sunday.

Even if the second charge be differently framed from the first, but grounded on the same facts, a former conviction or acquittal will be an answer to it. Thus a certificate of the dismissal of a charge of assault is a bar to an indictment for unlawful wounding where the transaction is the same (R. v. Elrington, 9 Cox, 86). But, if a man assaulted has subsequently died from the effect of the blows, a summary conviction for an assault is no bar to an indictment for manslaughter founded on the same facts (R. v. Morris, L. R. 1 C. C. R. 90).

An award of compensation by a magistrate against the driver of a hackney, or metropolitan stage carriage, upon an information for furious. driving under 6 & 7 Vict. c. 86, s. 28, is a bar to a subsequent action against such driver's employers, by the party injured in respect of his injuries (Wright v. L. G. Omnibus Company, 2 Q.B.D. 271).

v. Gooding.

This important question also arose and was considered in a judgment, G. S. & W. Ry. by the Lord Chief Baron, in the case of G. S. & W. Ry. (appellants)Gooding (respondent) (1908), 2 I. R. 429. The respondent was charged before justices at Petty Sessions with larceny of property not exceeding in value five shillings, and consented to the justices hearing the case under 18 & 19 Vict. c. 126. The justices heard the case, and made an order dismissing the charge" without prejudice," and gave the respondent a certificate of such dismissal. It was held that the dismiss, although expressed to be without prejudice, was a bar to a subsequent information for the same offence.

The Lord Chief Baron said: "Now I take it that there is nothing more settled in our law than that where there is no express provision

B

such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice, if a person be once in peril in a criminal case, that is, if he be once tried before a Court having jurisdiction to hear and determine, then, if there be an adjudication of acquittal, the matter cannot be brought up a second time for adjudication. The judgment of Lord Coleridge, C.J., in The Queen v. Duncan (7 Q.B.D. 199), is now almost classical. He says: The practice of the Court has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.'

The Lord Chief Baron then goes on to discuss whether the decision of the magistrates is wholly null, in consequence of the admittedly erroneous and illegal part of it, which states that the dismiss is without prejudice. He holds that the surplusage may be discarded, and proceeds: It is a determination in a criminal case that the man is not to be convicted, and this undoubtedly involves that the tribunal is not satisfied, on the evidence before it, that the man ought to be convicted. But the accused is entitled to be acquitted if the justices are of opinion that, on the evidence before them, he ought not to be convicted. The magistrates therefore say in substance by this dismiss without prejudice: On the facts before us there was not evidence to justify us in convicting the accused, but we think that the Crown ought to have an opportunity of bringing the case forward again on a subsequent occasion.' This expression of opinion cannot affect the principal matter that has gone before their adjudication that the evidence of guilt was insufficient. It is dangerous to infringe on one of the great principles of liberty, as is that here. Nothing would induce me to do so, except the compelling force of a statute."

Underlying the entire question of res judicata is the assumption that the accused was lawfully liable to suffer judgment for the offence charged. Lord Justice Holmes says [R. v. JJ. of Antrim (1895), 2 I. R. 634]: "The plea of autrefois acquit or autrefois convict implies a previous acquittal or conviction by a Court of competent jurisdiction. A verdict of not guilty of high treason by a jury at Quarter Sessions, the dismissal of a charge of rape by justices at Petty Sessions, the conviction by a Court martial for felony or misdemeanour of a person not subject to the military code, would, as far as I am aware, afford no protection to the accused, when impleaded before a competent and properly constituted tribunal."

CHAPTER III.

OF THE GENERAL JURISDICTION OF JUSTICES.

THE procedure of justices is regulated by the Petty Sessions Act (Ireland), 14 & 15 Vict. c. 93. The Petty Sessions Act is a code, and has well stood the test of time. They who drew this statute, wrought well. In all its clauses it is lucid and clear; and it possesses above all a refreshing note of decisiveness. Magistrates should carefully note it, study it, and follow it. Various sections of it deal with the procedure and powers of magistrates in two branches of their general jurisdiction which are always before them-their procedure and powers as to (1) their summary jurisdiction, and (2) as to indictable offences, in the taking of depositions and the rest.

There are some statutes, no doubt, in which a rivulet of text produces a copious flow of cases, authorities, and dissertations. There is an irresistible tendency on the part of text-writers to get in some stuff of their own-a tendency which may possibly be perceived in the pages of the present volume. Still the most hardened sinner must perceive the futility of making that clearer which is lucidity in itself; and accordingly, as regards these two important matters, the sections of the Act relating to them shall now be pointed out.

Taking of depositions in indictable offences.-The section of the Act dealing with these is section 14.

It is not amiss to point out some matters with reference to this branch of magistrates' procedure. It is an undoubted formula of the law that every accused person is presumed to be innocent until he is proved to be guilty. But, in common with other formulas, the constant repetition of it has dulled the edge of its practical truth. Were some person to start a rival formula," that every accused person is assumed to be guilty until he is proved to be innocent," he would have a large following; and on the social side his majority would be overwhelming. None the less it is the very truth, and, on this subject of taking depositions, three matters should be noted by magistrates :

(1) An accused person should be clearly informed of his rights-e.g. if a statute gives him the option of being tried summarily, or by a jury, he should be informed of that fact.

(2) Evidence tendered should not be rejected. The evidence tendered should be taken down, and in the depositions such evidence should be ear-marked as "objected to," and enclosed in brackets. Every one conversant with criminal trials will know that statements or facts which prima facie may seem irrelevant, may become evidence either by the course the trial takes, or by questions asked during the course of it.

(3) An accused person should always be asked if he wishes to have the deposition of any witness taken on his behalf. It would be well

to give him the reason. If his witness should die before the trial comes on, the evidence is lost to him unless there be a deposition. It may well be that a man may not be aware of this fact.

Finally, magistrates should always be careful to see to it that accused persons get fair play in all such matters as confessions, admissions, statements, and the like. In criminal trials judges always act as protectors of the prisoner, in so far as it shall be that no injustice shall be done to him. Magistrates should do the same. Baron Parke is reported to have said: "I confess I cannot look at the decisions without shame when I consider what objections have prevailed to prevent the reception of confessions in evidence. . . . But the world has travelled far since the days of Baron Parke.

Summary Jurisdiction.-The sections of the Petty Sessions Act dealing with the summary jurisdiction of magistrates are as follows:Sect. 10 (Information and Complaint), sect. 11 (Process to enforce Appearance), sect. 12 (Service of Summons and the rest), sect. 13 (Witnesses), sect. 15 (Committal of Prisoner and the rest), sect. 20 (Hearing of the Case), sect. 21 (Adjudication of the Case), sect. 22 (General powers in Adjudication of the Case), sect. 23 (Enforcement of Orders).

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ACTS OF PARLIAMENT.

Ireland appears to have been officially conquered in the reign of Henry II. From that time until the tenth year of Henry VII., Ireland legislated for itself, and English statutes had no force there (1 Bl. Comm. 103). In the tenth year of Henry VII., 1495, was passed the statute known as Poynings' Law, from the name of the Deputy, Edward Poynings, of that day. From the date of Poynings' Law until the year 1719, no English or British Act applied to Ireland unless it was specially named or included. In that year, by 6 Geo. I. c. 5, the British Legislature asserted the right to make laws for Ireland. This claim was abandoned in the year 1782 (22 Geo. III. c. 53), and the Irish Legislature became independent from the British. So matters stood until the Union, and since the Union all Acts of Parliament extend to Ireland. whether expressly mentioned or not, unless that portion of the United Kingdom be expressly excepted, or the intention to except it is otherwise plainly shown" (1 Steph. Comm. 101; R. v. Guardians of Mallow Union, 12 I. C. L. 35). But the Act of Union has not extended to Ireland any English or British Act passed before 1800 which did not previously apply to Ireland; and various statutes, such as the Gambling Act (14 Geo. III. c. 48), have been extended to Ireland by express enactment-e.g. the Life Insurance (Ireland) Act, 1860 (29 & 30 Vict. c. 42). Magistrates should, especially in unfamiliar cases, look to the Act of Parliament under which they are adjudicating, and see if it applies to Ireland; and also ascertain if the particular Act requires the presence of two justices or more.

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It should be remembered that the title of an Act is now to be construed as part of the Act. Lord Lindley, in Fielding v. Morley (1899, 1 Ch. 1), says: For some years past the title of the Act of Parliament has been part of the Act. In old days it used not to be so, and in the old law books we were told not to regard it, but now the title is an important part of the Act, and is so treated in both Houses of Parlia