Sections. shall be expressly alleged that such act was done maliciously, and without reasonable and probable cause; and if, at the trial of any such action, upon the general issue being pleaded, the plaintiff shall fail to prove such allegation, he shall be non-suited, or a verdict shall be given for the defendant," * "And be it enacted, that for any act done by a Justice of the Peace, in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction, or order made, or warrant issued, by such justice in such matter, may maintain an action against such Justice, in the same form and in the same case as he might have done before the passing of this Act, without making any allegation in his declaration that the act complained of was done maliciously, and without reasonable and probable cause: Provided, nevertheless, that (in any case where a conviction may be quashed, either upon appeal or upon application to Her Majesty's Court of Queen's Bench), no such action shall be brought for anything done under such conviction or order until after such conviction or order shall have been quashed, either upon appeal or upon application to Her Majesty's Court of Queen's Bench; nor shall any such action be brought for anything done under any such warrrant, which shall have been issued by such Justice to procure the appearance of such party, and which shall have been followed by a conviction or order in the same matter, until after such conviction or order shall have been so quashed as aforesaid; or if such last-mentioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless if a summons were issued previously to such warrant, and such summons were served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of such summons, in such case no such action shall be maintained against such Justice for anything done under such warrant,"† 1 2 *This section refers to cases wherein the Justice has jurisdiction, and to sustain an action for any act done in such cases, it must be alleged and proved that he acted maliciously, and without reasonable and probable cause. It is difficult to imagine how a Magistrate could place himself without the protection above provided. † Such protection as this section affords has reference to cases wherein the Justice acts without any jurisdiction whatever, or in which he exceeds his jurisdiction; the party injured need not allege or prove malice, &c. But if it be a case in which there exists a right of appeal or of application to Court of Queen's Bench, these remedies must be availed of to quash the conviction before the action can be brought. The 20 & 21 Vic., c. 43, gives (in matters of complaint which Justices have power to determine summarily), a right to the party aggrieved to call upon the Justices Y Sections. If one Justice makes a conviction or order, and another grant No action against Justices for the manner in which they After conviction or order confirmed on appeal, no action If an action brought, where by this Act it is prohibited, a 3 A month's notice must be given before bringing action, [There are then three accidents of office to be guarded against by the Justice of the Peace: the first, which must be wilful, is not so much to be feared, as not being likely to happen. The next is the more dangerous, being the result of inadvertence. The third, though not visited with pecuniary penalty, may be attended by a still more humiliating consequence, that is, where, by injudiciousness or want of discretion, he may happen to transgress the conditions of his commission.] Parties to suits, &c., to be competent and compellable to give evidence. LAW OF EVIDENCE. 14 & 15 Vic., cap. 99. An Act to amend the Law of Evidence. Repeals a proviso in 6 & 7 Wm. IV., cap. 85, On the trial of any issue joined, or of any matter or question, 2 to state a case for opinion of Superior Court, if dissatisfied with the decision as being "erroneous in point of law." Nor shall action be brought for act done under warrant to compel appearance, if a summons were previously served and not obeyed. But it is of the utmost importance that the summons and warrant should contain an offence which the Justice has power to entertain, and that the information, upon which the warrant issues, disclose such offence. Sections. But nothing herein contained shall render any person, who. in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any questions tending to criminate himself or herself, or shall, in any criminal proceeding, render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, LAW OF EVIDENCE AMENDMENT.* 16 & 17 Vic., cap. 83. An Act to amend 14 & 15 Vic., cap. 99. On the trial of any issue joined, or of any matter or question, 3 1 2 3 Persons charged with criminal offence not competent or compellable to give evidence to criminate himself. No person bound to answer ques tion tending to criminate himself. Where hus band or wife charged with criminal offence, one not competent to give evidence for or against the other. Husbands and wives of parties to suits to be admissible witnesses. Where hus band or wife charged with criminal offence, one not admissi ble as evi dence for or against the other. Husband and wife not compelled to disclose com 4 munications made to each other. It is the first rule of evidence, that the best evidence of which the case is capable shall be given; otherwise the presumption is, that it would make against the party neglecting to produce it. Where a document is in the hands of the other party, a notice to produce in Court must be given before secondary evidence of its contents can be received. It is not sufficient to dispense with a notice that the party in possession of the document has it with him in Court. A parol notice is held to be sufficient. Hearsay evidence of what is written or spoken is not admissible; but there are many exceptions to this rule, viz., pedigrees, customs, births, deaths, &c. LAW OF EVIDENCE ACT.* "An Act for amending the Law of Evidence and Practice on Criminal Trials." (9th May, 1865). Whereas it is expedient that the law of evidence and practice on trials for Felony and Misdemeanor and other proceedings in Courts of Criminal Judicature should be more nearly assimilated to that on trials at Nisi Prius: be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows; that is to say, 1. That the provisions of section two of this Act shall apply to every trial for Felony and Misdemeanor which shall be commenced on or after the First day of July One thousand eight hundred and sixty-five, and that the provisions of sections from three to eight, inclusive, of this Act shall apply to all Courts of Judicature, as or after July well Criminal as all others, and to all persons having, by law, or by consent of parties, authority to hear, receive, and examine evidence. Provisions of Sect. 2, of this Act to apply to trials commenced on 1, 1865. Summing up of Evidence in cases of felony and misde meanor. How far be dis 2. If any prisoner or prisoners, defendant or defendants, shall be defended by counsel, but not otherwise, it shall be the duty of the presiding judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants; and upon every trial for Felony or Misdemeanor, whether the prisoners or defendants, or any of them, shall be defended by counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respectively; and after the conclusion of such opening or of all such openings, if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded to sum up the evidence respectively; and the right of reply, and practice and course of proceedings, save as hereby altered, shall be as at present. 3. A party producing a witness shall not be allowed to impeach witness may his credit by general evidence of bad character, but he may, in case credited by the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present the party producing. * Though this Act is entitled the Law of Evidence and Practice on Criminal Trials, sec. 1 declares that from sec. 3 to 8, inclusive, "It shall apply to all Courts of Judicature, as well Criminal as all others, and to all persons having by law or by consent of parties authority to hear, receive, and examine evidence." Section 2 has reference to Courts of Oyer et Terminer. testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. 4. If a witness upon cross-examination as to a former state- As to proof ment made by him relative to the subject matter of the indictment of contradictory or proceeding, and inconsistent with his present tesimony, does statements not distinctly admit that he has made such statement, proof may of adverse be given that he did in fact make it; but before such proof can witness. be given the circumstances of the supposed statement, sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement. aminations as to pre 5. A witness may be cross-examined as to previous statements Cross-exmade by him in writing or reduced into writing relative to the subject matter of the indictment or proceeding, without such vious statewriting being shown to him; but if it is intended to contradict ments in such witness by the writing, his attention must, before such con- writing. tradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit. conviction of 6. A witness may be questioned as to whether he has been con- Proof of victed of any felony or misdemeanor, and upon being so questioned, previous if he either denies or does not admit the fact, or refuses to answer, witness may it shall be lawful for the cross-examining party to prove such be given. conviction; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offender was convicted, or by the deputy of such clerk or officer (for which certificate a fee of five shillings, and no more, shall be demanded or taken), shall, upon proof of the identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same. witnesses. 7. It shall not be necessary to prove by the attesting witness As to proof any instrument to the validity of which attestation is not requisite, by attesting and such instrument may be proved as if there had been no attesting witness thereto. 8. Comparison of a disputed writing with any writing proved to As to comthe satisfaction of the judge to be genuine shall be permitted to parison of disputed be made by witnesses; and such writings, and the evidence of writing. witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. 9. The word "counsel" in this Act shall be construed to apply "Counsel." to attorneys in all cases where attorneys are allowed by law or by the practice of any court to appear as advocates. 10. This Act shall not apply to Scotland. Not to apply to Scotland. |