bound over to answer an indictment for the offence; or the indictment is preferred with the consent of a judge, the attorney-general, or the solicitor-general. And where a justice refuses to commit, or to hold to bail a person charged with an indictable offence under the Act to be tried for the same, the justice may, and must at the desire of the prosecutor, take the recognizance of the prosecutor to prosecute and transmit the recognizance, information, and depositions, if any, to the Court in which the indictment ought to be preferred, in the same manner as if he had committed the person charged for trial (»).

By sect. 14

Costs.

"On any prosecution under this Act the Court may order costs to be paid to the defendant by the prosecutor, or to the prosecutor by the defendant, having regard to the information (o) given by and the conduct of the defendant and prosecutor respectively."

This is subject to the special rule of sect. 6 (p), where the defence allowed by that section is set up.

The section gives the Court unlimited jurisdiction over the costs, without reference to the result of the prosecution, except so far as this is made a subject for consideration by the reference to conduct. It may be compared with Ord. 65, r. 1 (4), and sect. 5 of the Judicature Act, 1890, which deal with the costs of civil proceedings (). Under Ord. 65, r. 1, it is held that a lump sum, assessed by the Court, may be awarded as costs (s); that a successful plaintiff may be ordered to pay the costs of the action (†) ; but that the defendant cannot be ordered to pay them

where the plaintiff had no cause of action (u). The discretion must, of course, be exercised judicially and on fixed principles of general application (x).

The ordinary rule as to the costs of summary proceedings is, that if a conviction or order is made, the justices may order the defendant to pay to the prosecutor or complainant, and if the information or complaint is dismissed, the prosecutor or complainant to pay to the defendant, such costs as they think just and reasonable (y).

Where a fine ordered to be paid on a conviction by a court of summary jurisdiction does not exceed five shillings, then, except so far as the Court may think fit to expressly order otherwise, an order shall not be made for payment by the defendant to the informant of any costs, and the Court shall, except so far as they think fit to expressly order otherwise, direct all fees payable or paid by the informant to be remitted or repaid to him; the Court may also order the fine or any part thereof to be paid to the informant in or towards the payment of his costs (≈).

Under sect. 12 (3) (a) compensation may be awarded to an innocent party out of the proceeds realized from forfeited goods for any loss sustained by him in dealing with such goods.

By sect. 2 (5)

Appeal.

"If any person feels aggrieved by any conviction made by a court of summary jurisdiction, he may appeal therefrom to a court of quarter sessions."

The appeal will be governed by sect. 31 of the Summary

(u), Dicks v. Yates, 18 C. D. 76; Foster v. G. W. Ry. Co., 8 Q. B. D. 515.

(x) Cooper v. Whittingham, 15 C. D. 501; Jones v. Curling, 13 Q. B. D. 265; The Monkseaton, 14 P. D. 51. And see the trade-mark cases Upmann v. Forrester, 24 C. D. 231, and the American Tobacco Co.

v. Guest, (1892) 1 Ch. 630; 9 R. P. C. 218, cited above, pp. 364, 366.

(y) Summary Jurisdiction Act, 1848, sect. 18; Stone's Justices' Manual, 23rd ed. p. 61.

(2) Summary Jurisdiction Act, 1879, sect. 8.

(a) Page 521, below.

Where a prosecution is pending.

Jurisdiction Act, 1879, and the provisions of that section must be complied with (b).

The decision of justices upon any point of law, or if it is alleged to be in excess of jurisdiction, may also be questioned by requiring the justices to state a case for the determination of the Queen's Bench Division (c); an order or conviction made by them without jurisdiction may be quashed upon a certiorari (d); and if they have refused to hear and determine a case in which they have jurisdiction they may be ordered to do so by mandamus (d).

Saving of other Proceedings.

By sect. 19 (1) and (2)—

"(1.) This Act shall not exempt any person from any action, suit, or other proceeding which might, but for the provisions of this Act, be brought against him.

"(2.) Nothing in this Act shall entitle any person to refuse to make a complete discovery, or to answer any question or interrogatory in any action, but such discovery or answer shall not be admissible in evidence against such person in any prosecution for an offence against this Act (dd).”

By sect. 12

Search Warrant.

"(1.) Where, upon information of an offence against this Act (e), a justice has issued either a summons requiring the defendant charged by such information to appear to answer to the same, or a warrant for the

(b) See Glen's Summary Jurisdiction Acts, 6th ed. p. 148; Stone's Justices' Manual, 23rd ed. p. 645.

(c) 20 & 21 Vict. c. 43, s. 3; 42 & 43 Vict. c. 49, s. 33. The statement of the case must be requested in writing within seven days of the date of the proceeding to be questioned. S. J. Rule 17;

Stone, p. 79.

(d) See Stone, p. 645. See Shortt and Mellor's Crown Office Practice.

(dd) Cf. sect. 23, by which rights, penalties, &c. under the M. M. A. 1862 are saved.

(e) Sect. 2 (1) and (2), p. 462.

"arrest of such defendant, and either the said justice on or after issuing the summons or warrant, or any other justice, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such justice may issue a warrant under his hand by virtue of which it shall be lawful for any constable named or referred to in the warrant, to enter such house, premises, or place at any reasonable time by day, and to search there for and seize and take away those goods or things; and any goods or things seized under any such warrant shall be brought before a court of summary jurisdiction for the purpose of its being determined whether the same are or are not liable to forfeiture (f) under this Act (g).

"(2.) If the owner of any goods or things which, if the owner thereof had been convicted, would be liable to forfeiture under this Act, is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing such forfeiture, and a court of summary jurisdiction may cause notice to be advertised stating that, unless cause is shown to the contrary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place the Court, unless the owner or any person on his behalf, or other person interested in the goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.

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'(3.) Any goods or things forfeited under this section, or under any other provision of this Act (ƒ),

(f) See sect. 2 (3) (iii), p. 514. (9) As to search warrants generally, see Glen's Summary Jurisdiction Acts, 6th ed., p. 302, where

a list of the numerous Acts autho-
rizing the granting of them is

given.

to innocent party.

Application

of the Act to watches.

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may be destroyed or otherwise disposed of, in such manner as the Court by which the same are forfeited may direct, and the Court may, out of any proceeds which may be realized by the disposition of such goods (all trade-marks and trade descriptions being first obliterated), award to any innocent party any loss he may have innocently sustained in dealing with such goods."

Forfeiture without conviction.]—An offence against the Act comprises two distinct elements: first, the doing of one of the specified acts, for instance, making a trademark without the assent of the proprietor, applying a false trade description to goods, or having in possession for sale any goods to which a forged trade-mark is applied; and, secondly, doing this with intent to defraud, or not innocently, and without any of the special defences mentioned in the Act. The existence of the first element can be ascertained from the chattel, article, instrument, or thing by means of, or in relation to which the offence (h), if committed at all, has been committed; but the existence of the second can only be established in relation to the conduct of a particular person, here referred to generally as "the owner" of the goods or things. The Act, however, in almost all cases casts the onus of establishing that he acted without intent to defraud, or otherwise innocently, or a special defence upon the person charged, and in the absence of any evidence by "the owner," for the purpose of forfeiting the goods under the section, evidence supplied by inspection of the goods themselves, or otherwise given in relation to them, and the marks applied to them will be sufficient (i).

By sect. 7

Marks on Watch Cases.

"Where a watch case has thereon any words or marks which constitute, or are by common repute (k)

(h) Sect. 2 (3) (iii.), p. 514.

(i) Cf. sect. 16, below, p. 531, "such goods."

(k) Cf. "custom of the trade,"

in sect. 3 (1), ante, p. 485.