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appears without.

on the statute 7 Anne, c. 14 to state by a proviso in the statute “ that the particular evidence of the fact no conviction should be set asid on which his judgment is fomded, for want of form, or through th: and not merely the legal effect of mistake of any circumstance, prosuch evidence in the words of the vided the material facts allegedl statute, yet, a conviction in the lat- were proved;" for this requires all ter form is valid in law : but the material facts to be alleged, and magistrate subjects himself to an knowledge is a material fact to coninformation if he endeavour to shel- stitute the offence. R. v. Jukes of: ter himself from detection by mis- al. 8 Terin Kep. 586. kating such legal result when the 8 So it is a material fact that the evidence would not warrant it. The defendant does not come within aKing v. Pearse. 9 East, 358. ny exception in the enacting clause,

and such a defect is not aided by II. Form of

the proviso. R. v. Jukes fo al. 3

Term Rep. 542. 1 Summons necessary in summary 9 A summary convietion for any ofconvictions, unless the defendant fence created by statute, must ne

Where the time gative every exception contained in is impossible, it is as no summons. the clause ereating the offence. 8 The Queen v.

Dyer. 1 Salk. 181. Term Rep. 542 2 Proceedings upon convictions must 10 It is no objection to a conviction, be in the present tense. The King

to state, that the informer came and v Roberts. 1 Str. 608.

çave

the justice to be informed, &c. 3 Where a justice is authorised to in the preturperfect tense. B.v.S.

convict for an offence within the lim- Hall. 1 Term Rep. 320. its of his jurisdiction, the conviction 11 A conviction must contain an admuts specify the place where the judication, whether the punishment offence was committed. Regina v. be or be not fixed by the statute.

Highmore. 2 L. Raym. 1220. R. v. J. A. Harris. Term Rep. 4 A conviction ought not to be in 238.

English. A conviction for swear- 12 Where a conviction, after setting ing ought to set out the oaths sworn. forth the evidence, stated, “there

Rex v. Chaveney. 2 L. Raym. 1368. upon the defendant, on, &c. at, &c. 5 Conviction of deer stealing in in before me, &c. by the oath of one

foresta usitata, good. The Queen v. credible witness, according to the Smith. 1 Salk. 377. .

forın of the statute is convieted;" 6

Conviction of return of pauper it was held to be an adjudication by should appear to have been by con- the justice, that he is convicted of fession, oath, or view of the justice the offence. R. v. Thompson. hinsell'; and it should appear that Term Rep. 18. he returned without certificate. A. 13 A commitment on statute 17 G. 2, nonymous. Lofft, 81.

c. 5, (the vagrant act,) must be a o The stat. 36 G. 3, c. 60, enacting, Cuinmitment in execution, (see Bail

that no person shall expose to sale R. v. Brooke,] and it is therefore metal buttons marked with the word bad if it merely state the charge, gilt, (the same not being really gilt,) and order the party to be committed knowing the same not to be gilt; a for safe custody till the sessions, conviction, charging that the de- without convicting the oifender of fendants did the act unlawfully and

the eharge.

R. v. Rhodes. fraudulently contrary to the form of Term Rep. 220. the statute, is bad, without an ex- 14 Outlawry is a conviction within press charge that they did it Konovo- the mcaning of 14 G. 2, c. 6. s. 1. ingly; and such defect is not aided against sheep-stealing. R. v. Y'an45

dell. 4 Teri Rep. 524.

66

a cer

15 Au allegation in an information, was alleged to be committed, was that the defendant bought

in the county of W. and within the tain quantity of wheat containg di- jurisdiction of the convicting magvers, to wit, fifteen bushels," is suf- istrate. R. v. Edwards. 1 East, ficien.y certain. K. v. J. Arnold. 278. ő Terin Rep. 356.

23 One may be convicted on the stat. 16 A conviction on the excise laws, 28 G. 3, c. 57, as the driver of a

against A. and company, cannot be stage enach, for permitting and sufsupported. R. v. Harrison and Co. fering beyond the proper number of 8 Term Rep. 508.

persons to go apon the roof of it; 17 Where justices of the peace are although he be not stated to be a

required, by a penal statute, to dis- driver employed by the owner, and tribute the penalty, on conviction, although he did not appear when among certain persons according to summoned before the magistrate ; jn their discretion, an adjudication which case the 2d sect. of the act that the forfeiture be disposed of as diréels that the owner shall be liathe law directs, is bad, and the court ble to the penalty thereby laid on such will quash the conviction. R. v. driver. Rex v. Barker. 3 East, 504.

Dimpsey. 2 Term Rep. 96. 24 The stat. 39 and 40 G. 3, c. 106, 18 In such cases the justices ought to enacts that all agreements, &c. in

adjudge what the several propor- writing or not, by any journeymen tions should be. ib.

manufacturers, for controlling any 19 Where an act gives power to a person carrying on any manufacture,

magistrate on a summary con- &c. in the condut thereof, &e. shall viction to award the reasonable be illegal; and it gives a summary charges of taking a distress, he form of conviction, in which the of must ascertain the amount in the fence is required to be stated : held conviction; and an adjudication that a convietion, alleging generalthat the defendant shall pay the ly that the defendants were conreasonable charges if the levy is bad. cerned in entering into a certain a.

R. v. Symonds. 1 East, 189. greement for the purpose of controll. 20 A conviction, adjudging a distri. ing 4. B. &c. without stating what

bution of part of a forfeiture (which the agreement was, was bad; even a statute says shall be pain to the if the variance in stating the agreeoverseers of poor of the parish for ment to be for the purpose of conthe use of the poor of the parish) trolling, instead of for controlling, to the overseers of the poor of a were not fatal. R. v. Neild et al. township, cannot be supported. R. 6 East, 417.

v. W. Priest. 6 Terin Rep. 538. 21 Whether the conviction could be

III. Game Laus. supported, if it appeared on it that the township maintained its own 1 The bare keeping a gun is no poor separately ? Qu. 6 Term Rep. cause of conviction. The King v. 538.

Gardner. 2 Str. 1098. 22 A conviction on the stat. 5 G. 3, 2 The information in a conviction c. 17, for fishing without consent of for killing game must negative all

“ in part of a certain the qualifications in 22 and 23 Car. stream which runneth between B. 2, c. 25. Rex k. Wheatman. 1 in the parish of a A. in the county Douglas, 345. of W. and C. in the same parish 3 In a conviction on the game acts, and county," quashed; because it it must be particularly and negadid not appear that the intermedi. tively specified that the defendant ate course of the stream between had not any of the qualifications the two termini in whieb the offence required by stat. 22 and 23 Car. 2,

the owner,

was

C. 23. The King v. Maurice Jarvis. must be repeated in the adjudica1 burr. 148.

tory part of the conviction, or 4 Conviction for killing a hare ill, whether it be not sufficient to con

quia the witness swears generally a vict the defendant of the offence aman is not qualified. The King v. foresaid, referring to the previous Marriott. i Str. 66.

part of the conviction, which sets Conviction for keeping only a lur- forth the information in which such cher, good. The King v. Filer. 1 qualifications were specifically neStr. 496.

gatived. 1 East, 639. 6 A deer stealer may be convicted 12 A conviction wherein the informa

before appearance, if duly summon- tion does not negative the defended. The King v. Simpson. 1 Str. ant's qualifications set forth in the 45.

stat. 22 and 23 Car. 2, is bad. R. In a conviction on stat. 5 Anne, e. v. Jarvis. 1 Eust, 643, n. 14, for killing game, the evidence 13 A conviction on the 4th sect. of need not negative every specific the stat. 5 Anne, c. 14, for keeping qualification under statute 22 and 23 a dog and gun to kill game, withCar. 2, c. 25. R. v. T. S. Crowther. out being qualified, must be made 1 Term Rep. 125.

within three months after the of. 8 In a conviction on s. 4, of the stat. fence committed : and if the hear

5 Anne, c. 14, evidence that 6 the ing of the matter be adjourned over defendant kept and used a gun to that time, though with the consent kill and destroy the game,

of the defendant, a conviction afterheld sufficient. R. v. ll. Thompson. wards is bad. Rex y. Tolly. 3 2 Term Rep. 18—but see Terin East, 467.

Rep. 152: and 8 Terin Rep. 222. 9 Proof that the defendant

IV. Lottery Aets. keep and use a gun to kill and destroy the game,” is sufficient evi- 1 Conviction on stat. 22 G. 3, c. 47, dence to support a conviction on the for insuring a ticket in the lottery, game laws, though the witness add authorized by 25 G. 3, quashed, behis reasons for believing it, “that cause the information did not state the gun was fired by the defendant, that the ticket on which the insurwho was walking about a piece of ance was made was a ticket in the ground at H. with that apparent state lottery. R. v. Trelawney. 1 intent.”

R. V. Davis. 6 Teren Term Rep. 222. Rep. 177.

2 Couviction on the same act ash10 If a conviction before a justice of ed because the evidence did not

peace on the game laws state that state the offence to have been comThe defendant was present at the

mitted where laid. R. v. Jeffries. time when the information was read 1 Term Rep. 241. and the witnesses examined, and that 3 Conviction on the same act " for when called on for his defence, he the said offence," where there were produced no evidence, and did not two distinct offences charged in the require any further time; that is information, was held bad. R. v. sufficient, without stating that he Solomons. 1 Term Rep. 219. was previously summoned to ansver, 4 An unstamped agreement to sell a

&c. R. v. Stone. 1 East, 639 share of a ticket in the lottery, be11 Qu. Whether it be necessary for fore the tickets are deposited witli

the prosecutor to negative by evi- the commissioners, is within the dence, as well as in the information, penalty inflicted by sect. 21, of that the qualifications of the defendant act. R. v. Hawksworth. 1 Term to kill game ?-and Qu. Whether Rep. 450. the negative of such qualifiations 5 The stat. 42 G. 3, c. 119, against

6 did

illegal lotteries, directing the penalty to be distributed oue 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 distributed as the law directs, without asvertaining 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.

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the offence being charged to be committed on the 12th of May, nou 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, ùud not to the inonth ; and therefore the information was in time. 2d. The wituess 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 Ith of June, and the conviction was signed and seal. ed on the forth of June, 1805. Aud 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. th. 'The witness de posing that lie found 6 floor of anolt in operation” very wet, &c. being the language of the witness and intelligible to a comnou isicht

1 A conviction on the malt act 12

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 z?ow last past, viz. on 12th of May, novo 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, (10 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 anul year last foresaid at IV. &c. "J. F. odlicer of excise now here comes before us, &c. and deposeth, &c. in the premises, that he surreyed 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 nowo here again called upon by us, &c. 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 1th of June, 1805.) Ied. 1. That

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sufficiently proves the offence charg- ception to this conviction, that the ed of wetting, corn or grain making oaths and curses ought to have been into malt in a state of operation. set out an hundred times, each par5th. The witness, an excise officer, ticularly, sed non allocatur ; for

it is stating in language appropriate to sufficient to say, he swore such an his employment, that he surreyed oath, or made such a curse, an huuthe malthouse on the 12th of Nay, dred times. But then the convicand there found a floor of malt in tion was quasled, because the reoperation, &c. is prima facie evi- cord was that the witnesses praestidence that the defendant was at tit sacramentum, &c. whereas, it that time a malster ; for otherwise ought to have been in the present it could not be properly called his tense praestat.

Rer y. Roberts. 2 malthouse, nor would the officer have L. Rayın. 1376. 1 Str. 608. had authority to survey it, as by the 3 Where fine is for forcible entry, excise laws a party must enter his conviction not quashed on motion. malthouse before the officer can The Queen v. Layton. 2 Salk. 450. survey it. The King v. Crisp. 7 4 If justices of the peace convict a East, 389.

man of a forcible detainer, they

ought to set the proper fine uponi VI. Separate Penalties.

him. The commitment of a man

to lay in prison, quusiju. finem fuerit, (And see tit. Game, and 3 Term Rep. is, if no fine is set upon him at the

509, tit. LITTERARY PROPERTY.) time of the commitment, illegal. 1 Qu. Whether a person eau be con- The King v. Elwell and others.

victed of two distinct penalties in L. Raym. 1514. the same information but if he ó Conviction quashed where the incan, he ought to be convicted of former was the witness. The King both. 1 Term Rep. 249.

V. Stone. 2 l. Raym. 1545.-S. P. 2 A defendant inay be convincted of The King v. Tilley. 1 Str. 316.

several offences in the same convic- 6 Where a conviction of forcible ention. R. v. Swallow. 8 Term Rep. try is quashed, the court must a281.

ward restitution. The King v. 3 'Two persons cannot be convicted Jones. 1 Str. 474.

in separate peualties under statute y Conviction of forcible entry in the 5 Anne, c. 14, s. 4, for using a grey

preterperfect tense. The King v. hound to destroy game.

Landen. 1 Str. 143. Bleasdale. 4 Term Kep. 809. 8 Conviction presumed right if the 4 Each of several defendants con- contrary does not appear.

The victed on statute 1 W. & M. c. 18, King v. Theed. 1 Str. 608. for distributing a dissenting congre- 9 Conviction on hawkers and pedlars gation, is liable to the penalty of act not to be set aside for inaccura2al. imposed by that act.

cy. Rex v. Hikin.

3 Burr. 1785. Hube. 5 Terin Rep. 512.

10 Conviction on the statuie against

hawkers and higlers bad, where the VII. Quashing, or Appealing froin. inatter that supports it falsified by

the affidavit. Anon. Lofft, 183. 1 Proviso in an act must be insisted 11 Conviction against the defendant

on before conviction. The Kinga v. for killing deer was reinoved into Ford. 1 Str. 535.

this court by certiorari, and was 2 The defendant was convicted upon quashed, because it said only, that

6 and 7 W. 3, c. 1, for swearing a he killed deer, in quodam loco), hundred oaths, viz. by (-; and where they had been usually kept, a hundred curses, viz. G-din and did not say inclosed. Regina you. And se rjeaut Darnall took ex- 1. Voore. 2 L. Rayin. 791.

R. V.

R. y.

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