or for want of one. R. v. Johnson, 1 Str. 261. R. v. Stone, 1 East, 649.

Evidence.] The evidence must prove the offence with which the defendant is charged; the time when it was committed, in order to shew that the information or complaint was lodged within the time limited for that purpose by statute, see R. v. Woodcock, 7 East, 146, and, in the case of an information by a common informer, that the offence was committed before the information was lodged; See R. v. Fuller, 1 L. Raym. 509; the place were it was committed, in order to shew that it was committed within the limits of the justice's jurisdiction; see R. v. Jefferies, 1 T. R. 241. R. v. Edwards, 1 East, 276. R. v. Hazell, 13 East, 139; and every fact and circumstance necessarily constituting the offence: for if any one of these be not proved, or cannot fairly be presumed from other facts or circumstances which have been proved, the defendant should not be convicted. But where a statute in the same clause creating the offence, contains some exception or proviso, that must be negatived by the information;although the information, in such a case, would be bad, if it did not negative such exception, (see ante, p. 89), yet it is not necessary for the prosecutor to prove the negative, (R. v. Turner, 5 M. & S. 206), but the defendant may prove the affirmative, if he will, in his defence.

The witnesses are called and examined: first, the witnesses for the prosecution, and (if the defendant appear) then the witnesses for the defence. And each witness, after his examination in chief, inay be cross-examined by the opposite party, or by some professional person on his behalf. See Cox v. Coleridge, 1 B. & C. 37. And therefore it is, that where the defendant appears, each witness must be sworn and examined in his presence, that he may have an opportunity of cross-examination. R. v. Crowther, 1 T. R. 127. A minute should be carefully taken of the testimony of each witness, both in his examination in chief, and in his cross-examina. tion, and as nearly as possible in the words the witness uses; in order that it may be inserted in the conviction, when a conviction is afterwards drawn up in form, to be transmitted to the Sessions,

The informer, if he be entitled to any part of the penalty, can. not be a witness against the defendant, R. v. Tilly, 1 Str. 115. see 1 Phil. Ev. 117, unless made so by the statute creating the offence, either expressly or by necessary implication. And where the informer cannot be a witness, his wife is incompetent also. See 12 East, 250. Formerly also a rated inhabitant of a parish was incompetent as a witness for the informer, if any part of the penalty were to go to the poor of the parish in which he was rated; but now, by stat. 27 Geo. 3, c. 29, where pecuniary penalties or parts thereof are given to the poor, the inhabitant of any place shall be a competent witness to prove the offence, although the place may be benefited by the conviction of the offender, provid

ed the penalty do not exceed £20. Husband and wife, however, cannot be witnesses for or against each other, in any case of summary conviction before a magistrate.

Conviction.] In summary proceedings before a justice of peace, he is substituted for a jury, as far as relates to the conviction, that is, to the finding of the party guilty or not guilty. He should judge therefore of the guilt or innocence of the defendant, from the evidence, in the same manner as if he were upon a jury: if the evidence be such as to leave no reasonable doubt upon his mind of the guilt of the defendant, he should convict him; if otherwise, he should acquit him.

Adjudication.] The adjudication is analogous to the judgment in a court of law. In some cases, the statute is peremptory as to the punishment, giving no discretion to the justice to alter or vary it; and in such case, the justice of course can only pursue the directions of the statute. In other cases, the punishment is left in some measure in the discretion of the justice, as to the nature of the punishment, its duration, or extent: in such cases, he should guide his discretion, as to the nature of the punishment, according to the circumstances of the case and the condition in life of the defendant; as to the extent of the punishment, according to the circumstances of aggravation or extenuation, under which the offence is proved to have been committed.

Costs.] By stat. 18 Geo. 3, c. 19, s. 1, where any complaint shall be made before any of his Majesty's justices of the peace, and any warrant or summons shall issue in consequence of such complaint, it shall and may be lawful to and for any justice of the peace who shall have heard and determined the matter of the said complaint, to award such costs to be paid by either of the parties, and in manner and form as to him or them shall seem fit, to the party injured: and in case any person, so ordered by the said justice to pay such sums of money as aforesaid, shall not forthwith pay down or give security for the same to the satisfaction of the justice, it shall and may be lawful for the said justice, by warrant under his hand and seal, to levy the said sum or sums by distress and sale of the goods and chattels of such person so refusing or neglecting; and, where goods and chattels of such person cannot be found, to commit such person to the house of correction of the county, &c. wherein such person shall reside, there to be kept to hard labour for any time not exceeding one month, nor less than ten days, or until such sum or sums of money, together with the expenses attending the commitment of such person to such house of correction, be first paid.

Provided nevertheless, that upon the conviction of any person or persons upon any penal statute, where the penalty shall amount to or exceed the sum of £5, the said costs shall be deducted by

the said justice, according to his discretion, out of the said penalty, so that the said deduction shall not exceed one fifth part of the said penalty; and the remainder of the said penalty shall be paid to or divided among the person or persons who would have been entitled to the whole of the penalty in case this act had not been made. Sect. 2.

And, by sect. 3, it is further enacted, that the several forms to this act annexed, shall and may, in the respective cases, be used and observed. The following are the forms referred to:

Form of awarding Costs.

County or Borough I, J. P., one of his Majesty's justices of the of, to wit: peace in and for the - aforesaid, in pursuance of an act made in the eighteenth year of his Majesty King George the Third, intituled 'An act for the payment of costs to parties, on complaints determined before justices of the peace out of sessions, for the payment of the charges of constables in certain cases, and for the more effectual payment of charges to witnesses and prosecutors of any larceny or other felony:' on the complaint of," [here state the names of the parties, and the offence generally, and the date,] “against - for which said complaint was heard and determined by [me], on the day of instant: do award the following costs to be paid by videlicet," [here state the costs]. "Given under my hand and seal, this day of- - in the year of our Lord

Form of Warrant of Distress and Sale, for the same.

J. P.

and to all other his Main the aforesaid.

to wit: To the constable of jesty's constables in and for Whereas [I, J. P., one] of his Majesty's justices of the peace in and for the- aforesaid, in pursuance of an act made in the eighteenth year of his Majesty King George the Third, intituled 'An act for the payment of costs to parties, on complaints determined before justices of the peace out of sessions, for the payment of the charges of constables in certain cases, and for the more effectual payment of charges to witnesses and prosecutors of any larceny or other felony,' have awarded, on the now last past, on the complaint of the following costs to be paid by the sum]; "and whereas the said

against

day of-
for

- videlicet:" [here state -, being ordered by [me]

the said justice to pay such sum as aforesaid, hath not paid down or given security for the same, to the satisfaction of [me] the said Justice: These are therefore to command you, and each and every of you, to levy the said sum of -, by distress and sale of the goods and chattels of the said- and I do hereby order and

for

direct the goods and chattels so to be distrained, to be sold and disposed of within days, unless the said sum of which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid; and you are hereby also commanded to certify unto [me] what you shall have done by virtue of this [my] warrant. Given under [my] hand and seal, at day of, in the year of our Lord

the

J. P.

Constable's Return thereon, for want of Distress.

to wit: I, E. F., constable of

do hereby certify to

— aforesaid, that I

[J. P., esquire] justice of the peace of have made diligent search for, but do not know nor can find any goods and chattels of - -, by distress and sale whereof 1 may levy the sum of -, pursuant to [his] warrant for that purpose, day ofGiven under my hand, this in the year of our Lord

dated the

day of

E. F.

Commitment thereupon to the House of Correction.

to wit: To the constable of

and also to the

keeper of the House of Correction at Whereas, in pursuance of an act made in the eighteenth year of his Majesty King George the Third, intituled, 'An act for the payment of costs to parties, on complaint determined before justices of the peace out of sessions, for the payment of the charges of constables in certain cases, and for the more effectual payment of charges to witnesses and prosecutors of any larceny or other felony,' [I, J. P., one] of his Majesty's justices of the peace in and for the said did issue [my] warrant of distress and constable of the said

sale, directed to

of.

of in manner and form

ordering the said constable to levy the said sum of the goods and chattels of the said

as therein is mentioned; And whereas it appears to [me] by the return of [E. F.] constable of

dated the

-, by

day of, that he hath made diligent search, but doth 'not know of, nor can find any goods or chattels of the said distress and sale whereof the said surn of - - may be levied, pursuant to the said warrant: These are therefore to command you the said constable of to apprehend the said convey the said

and

to the said House of Correction at and to deliver the said there to the said keeper of the said house of correction; and these are also to command you the said keeper of the said house of correction, to receive the said

into

the said house of correction, and there to keep him to hard labour

for the space of

of

of the said

from the date hereof, or until such sum -, together with the expenses attending the commitment to the said house of correction, be first paid, — be discharged by due course of law. Given under [my] hand and seal, at --, the

or until the said.

.

day of. J. P.

If costs be not given by the statute creating the offence, and can therefore be awarded by virtue of this statute alone, then I conceive they cannot form any part of the conviction, but must be awarded and recovered in the manner above specified; because the third section of the act is peremptory, that the above forms shall be used and observed. But if costs be given by the statute creating the offence, they may in that case be awarded in the conviction. Vide post.