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arrest of the debtor's person. The bailiff of one county court is bound to enforce the warrant of another, and a county court judgment may be registered in the Supreme Court and execution issued thereupon. But an appeal lies from a judgment, decree, or order (not being an order of commitment) of a county court to the Supreme Court by special case or motion, provided that the point be raised within a limited time, and a deposit paid to cover costs.* The Supreme Court may affirm or reverse the decision appealed from, or order a rehearing before itself. A county court judge may also reserve any question for the decision of the Supreme Court."

Judgments of county or other local courts of record in any other Australasian colony may now be enforced in Victoria, provided that, upon adoption of a reciprocal policy, the Governor in Council has made a proclamation to that effect."

It must be remembered that county courts are also, practically, local Courts of Insolvency (cf. ante, p. 322).

1 County Court Act 1890, §§ 107, 108, 115, and 117.

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6 § 135.

2 § 101.
7 §§ 137-145.

3 § 104.

CHAPTER XLI

MAGISTRATES' COURTS

THE specific title of every magistrate in Victoria is "justice of the peace." Many of the justices have other offices, of a more important character, which influence their powers as justices, but, in order that they may act in a magisterial capacity, they are specially invested with the title. It is generally known that the office of "justice of the peace" is very ancient. It goes back beyond question to the fourteenth century, and there are traces of similar offices at a still earlier date. As the powers of the autonomous local authorities disappeared in England, their places were gradually taken by these officials, until the whole character of the local administration was changed. For it has always been a distinguishing feature of the office that it has been created by the Central Government, whereas the older local authorities were created by the localities. Every justice of the peace holds his office from and at the pleasure of the Crown. Another remarkable feature of the office is, that from early times, though not from its commencement, it has been of an honorary character. The overwhelming importance of the justices in local administration dates from the time of the Tudors and the Reformation.

Justices of the Peace in Victoria are of two kinds—

a. Specially appointed.

b. Ex officio.

a. In every bailiwick1 such and so many justices as are necessary are "assigned" by Commission under the seal of the Colony to keep the peace. The Commission is in the Queen's

1 For bailiwicks cf. Supreme Court Act 1890, §§ 41 and 42, and Sched. 3. 2 Justices Act 1890, § 12.

name and is signed by the Governor.1 Justices thus specially appointed have jurisdiction only in their own bailiwicks. At present there are in Victoria between two and three thousand of such justices.2

b. The following persons are ex officio justices of the peace—

1. Members of the Executive Council,

2. Judges of the Supreme Court, 3. Chairmen of General Sessions,

4. Coroners and deputy coroners, 5. Police magistrates,

6. The president of every shire and
the mayor of every borough,

7. The mayors and mayors elect of
Melbourne and Geelong,

for every bailiwick.

for every bailiwick in which any part of their municipality is situate, during their terms of office, and twelve months afterwards.3

No insolvent is capable of acting as a justice, and the Governor in Council may prohibit any justice from acting.*

The duties of justices are now so numerous and important that it will be impossible to give more than a brief outline of them. The simplest way will be to note the different capacities in which a justice may act, and shortly touch upon his duties in each.

Broadly speaking, a justice acts in three capacities

a. As a magistrate out of sessions.

b. As a magistrate or judge in petty sessions.

c. As a magistrate or judge in general sessions.

a. The great function of a justice out of sessions is to receive information of the commission of offences, and to prepare the cases for trial.

Having heard information, either by mere statement or oath, which raises in his mind a reasonable probability of an offence having been committed, he issues a summons calling on the accused to appear and answer the charge, or, if the information has been on oath and an indictable offence is charged,5 he may issue a warrant ordering his immediate arrest." If the accused does not obey the summons, a warrant may also be issued after sworn proof of service. A justice may compel the attendance of witnesses, and the production of documents.8 2 Ex relatione the Crown Office.

1 Justices Act 1890, Sched. 3 (form).
3 Justices Act 1890, §§ 13 and 14.
6 § 30.

5 §§ 19 and 32.

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CHAP. XLI

MAGISTRATES OUT OF SESSIONS

355

During the preliminary hearing, the witnesses for the prosecution are examined on oath, they may be cross-examined by the accused or his counsel, and their depositions are taken down by the justice and signed by them.1 Such examination

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is not a judicial proceeding, and the justice may, if he thinks fit, exclude the public;2 but if the evidence, in the opinion of the justice, raises a prima facie case against the accused, the latter must be allowed to call witnesses for the defence, whose depositions are similarly taken. Before hearing the accused's witnesses, however, the justice, if he thinks there is a case, must ask the prisoner if he wishes to make a statement. But the question is accompanied by an elaborate caution as to the effect of such a statement, and the accused is not bound to say anything. If he does so, his statement is treated in the same way as the depositions of the witnesses."

If the justice, after these steps, makes up his mind to commit the prisoner for trial, he forwards the information and depositions to the Crown Solicitor (if the trial is to take place in the Supreme Court) or to the clerk of the peace for the bailiwick (if the trial is to be at general sessions). The witnesses for the prosecution may be, and the material witnesses for the prisoner (except mere witnesses to character) must be, bound by recognisance to appear and give evidence at the trial. If the proceedings require adjournment at any stage, the justice may (subject to certain restrictions) remand the accused to custody, but he may at any stage, even after committal for trial, take bail for his reappearance, except upon a charge of treason." The powers previously enumerated may be exercised by a single justice or by two or more in conjunction.10

Besides these functions as committing magistrate, a justice of the peace may be called upon to perform an almost countless number of acts of a purely administrative character. He may, in conjunction with another justice, order the destruction of an injured or diseased animal," commit a neglected child to

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9 §§ 29 (6) and 51. The power to admit to bail extends even to the case of a person found guilty by a coroner's jury of manslaughter or arson (Coroners Act 1890, § 12).

10 § 29.

11 Animals Act 1890, § 15, and Stock Diseases Act 1890, § 70.

the care of the Department for Neglected Children or of a private person,1 order a husband to pay money for the support of his deserted wife,2 visit and examine gaols,3 decide, in certain cases, as to where bridges over drainage works are necessary,* apprentice orphan or deserted children, order the return of any seaman who has deserted from a foreign vessel," direct a search for runaways on the complaint of the master of such vessel," command the dispersion of an unlawful assembly, or arrest a person suspected of being a foreign criminal."

b. As a judge or magistrate in Petty Sessions. A court of Petty Sessions is an open court, constituted by two or more justices, a single police magistrate,10 or (where the parties consent in writing), a single justice." Courts of petty sessions are held at places and times fixed by the Governor in Council.12 present there are about 240 of such places in Victoria.18

Every Court of Petty Sessions has a clerk attached to it, whose duty it is to keep the register of the proceedings of the Court, and conduct its formal business.14

Besides the powers conferred on it by special statutes, a Court of Petty Sessions has jurisdiction in the following cases

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1. Offences made punishable on summary conviction.

2. All cases of assault where the damages claimed do not exceed £50. 3. Claims for the restitution of goods alleged to be illegally detained, where the value of the goods does not exceed £50.

4. Actions for "civil debts recoverable summarily," where the sum claimed does not exceed £50. (Under the head of "civil debts recoverable summarily' are specified a large number of cases which do not, as a rule, involve much dispute as to facts.)

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5. Enforcement of fines and penalties recoverable before one or more justices, where no special provision is otherwise made for their enforcement.15

Neglected Children's Act 1890, §§ 20 and 63.

2 Marriage Act 1890, § 43.

4 Water Act 1890, § 72.

6 Seamen's Act 1890, § 6.

3 Gaols Act 1890, § 19.

5 Master and Apprentices Act 1890, §§ 6 and 11.

7 Ibid. § 9.

8 Unlawful Assemblies and Processions Act 1890, § 6.

9 Crimes Act 1890, § 370.

10 A police magistrate is an official under the Public Service Act, having special qualifications (Public Service Act 1890, § 9). No special statutory power is needed for the creation of the office (Ex parte Hargraves 1 A. J. R. 23). A police magistrate alone may, as a rule, do whatever two justices are authorised to do (Justices Act 1890, § 63). There are at present twenty-three police magistrates in Victoria (Year Book of Australia 1890, p. 613).

11 Justices Act 1890, § 58.
12 § 62.
14 Justices Act 1890, §§ 64, 65.

13 Year Book of Australia 1890, p. 602.

15

$ 59.

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