on the statute 5 Anne, c. 14 to state the particular evidence of the fact on which his judgment is founded, and not merely the legal effect of such evidence in the words of the statute, yet, a conviction in the latter form is valid in law: but the magistrate subjects himself to an information if he endeavour to shelter himself from detection by mistating such legal result when the evidence would not warrant it. The King v. Pearse. 9 East, 358.

II. Form of.

1 Summons necessary in summary convictions, unless the defendant appears without. Where the time is impossible, it is as no summons. The Queen v. Dyer. 1 Salk. 181. 2 Proceedings upon convictions must be in the present tense. The King

v Roberts. 1 Str. 608.

3 Where a justice is authorised to convict for an offence within the limits of his jurisdiction, the conviction muts specify the place where the offence was committed. Regina v. Highmore. 2 L. Raym. 1220. 4 A conviction ought not to be in English. A conviction for swearing ought to set out the oaths sworn. Rex v. Chaveney. 2 L. Raym. 1368. 5 Conviction of deer stealing in in foresta usitata, good. The Queen v. Smith. 1 Salk. 377..

6 Conviction of return of pauper should appear to have been by confession, oath, or view of the justice himself; and it should appear that he returned without certificate. Anonymous. Lofft, 84.

The stat. 36 G. 3, c. 60, enacting, that no person shall expose to sale metal buttons marked with the word gilt, (the same not being really gilt,) knowing the same not to be gilt; a conviction, charging that the defendants did the act unlawfully and fraudulently contrary to the form of the statute, is bad, without an express charge that they did it knowingly; and such defect is not aided

45

8

9

by a proviso in the statute that no conviction should be set aside for want of form, or through the mistake of any circumstance, provided the material facts alleged were proved;" for this requires all material facts to be alleged, and knowledge is a material fact to constitute the offence. R. v. Jukes & al. 8 Term Rep. 586.

So it is a material fact that the defendant does not come within any exception in the enacting clause, and such a defect is not aided by the proviso. R. v. Jukes & al. s Term Rep. 542.

8

A summary conviction for any offence created by statute, must negative every exception contained in the clause creating the offence. 8 Term Rep. 542.

10 It is no objection to a conviction, to state, that the informer came and gave the justice to be informed, &c. in the preterperfect tense. R. v. S. Hall. 1 Term Rep. 320.

41 A conviction must contain an adjudication, whether the punishment be or be not fixed by the statute. R. v. J. A. Harris. 7 Term Rep.

15 An allegation in an information, that the defendant bought "a certain quantity of wheat containg divers, to wit, fifteen bushels," is sufficien y certain. R. v. J. Arnold. 5 Term Rep. 356.

16 A conviction on the excise laws, against A. and company, cannot be supported. R. v. Harrison and Co. 8 Term Rep. 508.

17 Where justices of the peace are required, by a penal statute, to distribute the penalty, on couviction, among certain persons according to their discretion, an adjudication that the forfeiture be disposed of as the law directs, is bad, and the court will quash the conviction. R. v. Dimpsey. 2 Term Rep. 96.

18 In such cases the justices ought to adjudge what the several propor

tions should be.

ib.

19 Where an act gives power to a magistrate on a summary conviction to award the reasonable charges of taking a distress, he must ascertain the amount in the conviction; and an adjudication that the defendant shall pay the reasonable charges if the levy is bad. R. v. Symonds. 1 East, 189. 20 A conviction, adjudging a distribution of part of a forfeiture (which a statute says shall be pain to the overseers of poor of the parish for the use of the poor of the parish) to the overseers of the poor of a township, cannot be supported. R. v. W. Priest. 6 Term Rep. 538. 21 Whether the conviction could be supported, if it appeared on it that the township maintained its own poor separately? Qu. 6 Term Rep.

538.

22 A conviction on the stat. 5 G. 3, c. 14, for fishing without consent of the owner, "in part of a certain stream which runneth between B. in the parish of a A. in the county of W. and C. in the same parish and county," quashed; because it did not appear that the intermediate course of the stream between the two termini in which the offence

was alleged to be committed, was in the county of W. and within the jurisdiction of the convicting magistrate. R. v. Edwards. 1 East,

278.

23 One may be convicted on the stat. 28 G. 3, c. 57, as the driver of a stage enach, for permitting and suffering beyond the proper number of persons to go apon the roof of it; although he be not stated to be a driver employed by the owner, and although he did not appear when summoned before the magistrate; in which case the 2d seet. of the act diréets that the owner shall be liable to the penalty thereby laid on such driver. Rex v. Barker. 3 East, 504. 24 The stat. 39 and 40 G. 3, c. 106,

enacts that all agreements, &c. in writing or not, by any journeymen manufacturers, for controlling any person carrying on any manufacture, &c. in the conduct thereof, &c. shall be illegal; and it gives a summary form of conviction, in which the offence is required to be stated: held that a conviction, alleging generally that the defendants were concerned in entering into a certain agreement for the purpose of controlling A. B. &c. without stating what the agreement was, was bad; even if the variance in stating the agreement to be for the purpose of controlling, instead of for controlling, were not fatal. R. v. Neild et al. 6 East, 417.

III. Game Laws.

The bare keeping a gun is no cause of conviction. The King v. Gardner. 2 Str. 1098.

The information in a conviction for killing game must negative all the qualifications in 22 and 23 Car. 2, c. 25. Rex v. Wheatman. 1 Douglas, 345.

In a conviction on the game acts, it must be particularly and negatively specified that the defendant had not any of the qualifications required by stat. 22 and 23 Car. 2,

c. 25. The King v. Maurice Jarvis. 1 Burr. 148. 4 Conviction for killing a hare ill, quia the witness swears generally a man is not qualified. The King v. Marriott. 1 Str. 66.

5 Conviction for keeping only a lurcher, good. The King v. Filer. 1 Str. 496.

6 A deer stealer may be convicted before appearance, if duly summoned. The King v. Simpson. 1 Str.

45.

7 In a conviction on stat. 5 Anne, c. 14, for killing game, the evidence need not negative every specific qualification under statute 22 and 23 Car. 2, c. 25. R. v. T. S. Crowther. 1 Term Rep. 125.

was

8 In a conviction on s. 4, of the stat. 5 Anne, c. 14, evidence that "the defendant kept and used a gun to kill and destroy the game," held sufficient. R. v. R. Thompson. 2 Term Rep. 18-but see 7 Term Rep. 152 and 8 Term Rep. 222. 9 Proof that the defendant "did keep and use a gun to kill and destroy the game," is sufficient evidence to support a conviction on the game laws, though the witness add his reasons for believing it, "that the gun was fired by the defendant, who was walking about a piece of ground at H. with that apparent intent." R. v. Davis. 6 Term Rep. 177.

10 If a conviction before a justice of peace on the game laws state that the defendant was present at the time when the information was read and the witnesses examined, and that when called on for his defence, he produced no evidence, and did not require any further time; that is sufficient, without stating that he was previously summoned to answer, &c. R. v. Stone. 1 East, 639, 11 Qu. Whether it be necessary for the prosecutor to negative by evidence, as well as in the information, the qualifications of the defendant to kill game ?-and Qu. Whether the negative of such qualifications

must be repeated in the adjudicatory part of the conviction, or whether it be not sufficient to convict the defendant of the offence aforesaid, referring to the previous part of the conviction, which sets forth the information in which such qualifications were specifically negatived. 1 East, 639.

12 A conviction wherein the information does not negative the defendant's qualifications set forth in the stat. 22 and 23 Car. 2, is bad. R. v. Jarvis. 1 East, 643, n.

13 A conviction on the 4th sect. of the stat. 5 Anne, c. 14, for keeping a dog and gun to kill game, without being qualified, must be made within three months after the offence committed: and if the hearing of the matter be adjourned over that time, though with the consent of the defendant, a conviction afterwards is bad. Rex v. Tolly. 3 East, 467.

IV. Lottery Acts.

Conviction on stat. 22 G. 3, c. 47, for insuring a ticket in the lottery, authorized by 25 G. 3, quashed, because the information did not state that the ticket on which the insurance was made was a ticket in the state lottery. R. v. Trelawney. 1 Term Rep. 222.

Conviction on the same act cashed because the evidence did not state the offence to have been committed where laid. R. v. Jeffries. 1 Term Rep. 241.

Conviction on the same act "for the said offence," where there were two distinct offences charged in the information, was held bad. R. v. Solomons. 1 Term Rep. 249.

An unstamped agreement to sell a share of a ticket in the lottery, before the tickets are deposited with the commissioners, is within the penalty inflicted by sect. 21, of that act. R. v. Hawksworth. 1 Term Rep. 450.

The stat. 42 G. 3, c. 119, against

illegal lotteries, directing the penalty to be distributed one 3d to the King, one 3d to the informer, and one 3d to the person apprehending or securing the offender; a conviction directing the penalty to be distribated as the law directs, without ascertaining to whom the last third is to be paid (the person being uncertain) is bad. The King v. Seale. 8 East, 568.

6 But need not appear that there was in fact any illegal lottery, if it be shewn that the money was taken for that purpose. ib.

V. Malt Acts.

1 A conviction on the malt act 42 G. 3, c. 38, 3, 30, dated 4th June, 1805, stated that on the 29th of May, 1805, R. P. informeth us (three justices) that at the time of the committing the offence after mentioned the defendant was a malster, and within three months now last past, viz. on 12th of May, now last past at W. &c. did wet certain grain of him the defendant then and there making into malt in a certain stage of operation, &c. and thereupon afterwards on the 4th of June, (up year mentioned) at W. the defendant having been duly summoned, now here appears before us, &c. and having heard the information read, is asked, &c. and thereupon the defendant denieth, &c. whereupon we do now here proceed to examine, &c. and on the day and year last aforesaid at W. &c. J. F. officer of excise now here comes before us, &c. and deposeth, &c. in the premises, that he surveyed the malthouse of the defendant at W. aforesaid, on the said 12th of May, and found a floor of malt in operation very wet, &c. and the defendant is now here again called upon by us, &e. for his further defence; but no other evidence is now here produced, &c. whereupon it is adjudged, &c. (stated to be signed and sealed this 4th of June, 1805.) Held, 1. That

the offence being charged to be committed on the 12th of May, now last past, the antecedent date being the 29th of May, 1805, when the information was exhibited, and the conversation being dated the 4th of June, 1805, and it being also alleg ed that the offence was committed within three months now last past, it does appear that the offence was committed on the 12th of May, 1803, and not in 1804. The words now last past; after the 12th of May, referring to the day of the month, and not to the month; and therefore the information was in time. 2d. The witness swearing to the offence being committed on the said 12th of May "sufficiently refers to the 12th of May, 1805, the day charged in the information, so as to shew that the offence was committed within the three months: for it is the relation of the evidence by the magistrates, who also state that the witness deposed in the premises. 3d. By the statement of the proceedings in the conviction, it appears to have been all one continuing transaction, from the appearance of the defendant after the summons to the close of the conviction: and this appears both from the antecedent dates of May, 1805, and the date of the conviction, to have been the 4th of June, 1805; because the defendant is stated to have been afterwards (i. e. after the information exhibited) summoned, and to have appeared on the 4th of June, and the conviction was signed and sealed on the forth of June, 1805. And it thereby also appears, that the evidence was given in the defendant's presence, as his departure pending the continuance of the transaction will not be presumed. And it thereby also appears that the conviction took place on the 4th June, 1805. 4th. The witness deposing that he found " a floor of malt in operation" very wet, &e. being the language of the witness and intelligible to a common intent

sufficiently proves the offence charg ed of wetting, corn or grain making into malt in a state of operation. 5th. The witness, an excise officer, stating in language appropriate to his employment, that he surveyed the malthouse on the 12th of May, and there found a floor of malt in operation, &c. is prima facie evidence that the defendant was at that time a malster; for otherwise it could not be properly called his malthouse, nor would the officer have had authority to survey it, as by the excise laws a party must enter his malthouse before the officer can survey it. The King v. Crisp. East, 389.

VI. Separate Penalties.

3

ception to this conviction, that the oaths and curses ought to have been set out an hundred times, each particularly, sed non allocatur; for it is sufficient to say, he swore such an oath, or made such a curse, an hundred times. But then the conviction was quashed, because the record was that the witnesses praestitit sacramentum, &c. whereas, it ought to have been in the present tense praestat. Rex v. Roberts. 2 L. Rayın. 1376. 1 Str. 608.

Where fine is for forcible entry, conviction not quashed on motion. The Queen v. Layton. 2 Salk. 450. If justices of the peace convict a man of a forcible detainer, they ought to set the proper fine upon him. The commitment of a man to lay in prison, quosqu. finem fuerit, is, if no fine is set upon him at the time of the commitment, illegal. The King v. Elwell and others. L. Raym. 1514.

2

Conviction quashed where the informer was the witness. The King v. Stone. 2 L. Raym. 1545.—S. P. The King v. Tilley. 1 Str. 316. Where a conviction of forcible entry is quashed, the court must award restitution. The King v. Jones. 1 Str. 474.

Conviction of forcible entry in the preterperfect tense. The King v. Landen. 1 Str. 443.

8 Conviction presumed right if the contrary does not appear. The

9

cy.

King v. Theed. 1 Str. 608. Conviction on hawkers and pedlars act not to be set aside for inaccuraRex v. Aikin. 3 Burr. 1785. 10 Conviction on the statute against hawkers and higlers bad, where the matter that supports it falsified by the affidavit. Anon. Lofft, 183. 11 Conviction against the defendant for killing deer was removed into this court by certiorari, and was quashed, because it said only, that he killed deer, in quodam loco, where they had been usually kept, and did not say inclosed. Regina v. Moore. 2 L. Raym. 791.