CEEDINGS, &c. CHAP. IV. soned and kept to hard labour, according to the discretion of SUMMARY PRO Such justice, for not exceeding two calendar months, where the sum does not exceed 51., and prescribes the further scale of imprisonment; but the imprisonment is to determine on payment of the sum awarded and costs. (s) Prescribed form of conviction in 7 & 8 Geo. 4. c. 29. The section 68 enacts, that the justice may in certain cases, even after the conviction, discharge the offender upon his making such satisfaction to the party grieved for damages and costs, or either, as the justice shall ascertain and fix ; (t) and by section 69, the King may pardon any person imprisoned under that act; and the 70th section enacts, that when any person summarily convicted under this act shall have paid the penalty, or shall have received a remission thereof from the crown, or suffered imprisonment for nonpayment thereof, he shall be relieved from all further proceedings for the same cause. (u) The 71st section allows the form of conviction as in the note (v). The 72d section enacts, that in all cases where the sum adjudged to be paid on summary conviction, shall exceed 5l., or the imprisonment shall exceed one calendar month, or the conviction shall take place before one Justice only; any person who shall think himself aggrieved by such conviction, may appeal to the next Court of General or Quarter Sessions, which shall be holden not less than ten days after the day of such conviction, provided he shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, (s) Id. sect. 67. (t) 1d. 68. (u) Id. sect. 70. Lord at (v) Be it remembered, that on the be imprisoned in the [or to be imand there kept to hard labour], for the space of unless the said sums shall be sooner paid; [or, and I order that the said sums shall be paid by the said A. 0. on or before the day of -], and I direct that the said sum of [i. e. the penalty only] shall be paid to of -, aforesaid, in which the said offence was committed, to be by him applied according to the directions of the statute in that case made and provided, [or that the said sum of [i. e. the penalty,] shall be paid to, &c., [as before]; and that the said sum of [i. e. the value of the articles stolen, or the amount of the injury dune] shall be paid to C. D. [the party aggrieved, unless he is unknown, or has been examined in proof of the offence, in which case state that fact, and dispose of the whole like the penalty, as before]; and I order that the said sum of for costs, shall be paid to [the complainant]. Given under my hand and seal, the day and year first above mentioned. within three days after such conviction, and seven clear days at the least before such sessions; such person to remain in custody until the sessions, or enter into a recognizance with two sureties, to appear at the said sessions to try such appeal, and abide the judgment of the Court thereupon, and pay such costs as shall be awarded: and, on such notice being given, and recognizance entered into, the committing justice is to liberate such person if in custody; and the Court at such sessions shall hear and determine such appeal, and make such order as they shall think meet, and issue process for enforcing such judgment (w) The 73d section enacts, that no conviction shall be quashed for want of form, or removed by certiorari; and no warrant of commitment held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a valid conviction to support the same (x) Section 74 directs, that all convictions shall be returned to the Quarter Sessions, and how far they shall be evidence in future cases. (y) Section 75, for the protection of persons acting in the execution of this act enacts, that all actions and prosecutions against any person acting under that act shall be laid and tried in the county where the fact was committed, and commenced within six calendar months, and directs that notice in writing of such action, and of the cause thereof, shall be given one calendar month, at least, before the commencement thereof and in such action, defendant may plead the general issue, and give the special matter in evidence; and no plaintiff shall recover in such action if tender of sufficient amends shall have been made before action brought, or if a sufficient sum of money be paid into Court after such action brought; and then regulates the payment of costs. (z) : CHAP. IV. ceedings, &c. SUMMARY PRO Sinall wilful The principal statute against small malicious injuries to any real Thirdly, Proor personal property, is 7 & 8 Geo. 4, c. 30. (a) The 24th section ceedings for is very comprehensive, and enacts, "that if any persons shall or malicious injuries to per"wilfully or maliciously commit any damage, injury, or spoil, sonal or real "to or upon any real or personal property whatsoever, whether property, on of a public or private nature, for which no remedy or punish- c. 30. s. 24. 66 7 & 8 Geo. 4. (w) Id. sect. 72. (r) Id. sect. 73; see a similar enactment, and reason, ante, 134; and Weeks v. Clutterbuck, 2 Bing. 483. (y) 1d. sect. 74. (:) Id. sect. 75. (a) See the enactment, and others of the same nature, and decisions thereon, ante, Part 1, page 136 to 137, 138, 9, as to Personalty; and id. page 407, as to Realty. CHAP. IV. CEEDINGS, &c. 66 "ment is hereinbefore provided; (b) every such person being SUMMARY PRO- Convicted thereof, before one Justice of the Peace, shall forfeit "and pay such sum of money as shall appear to the justice to "be reasonable compensation for the damage, injury, or spoil, "so committed, not exceeding the sum of five pounds; (c) "which sum of money shall, in the case of private property, be paid to the party aggrieved, (except where such party shall "have been examined in proof of the offence, (d) and in such "case, or in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in "such manner as every penalty imposed by a Justice of the "Peace under that act, is thereinafter directed to be applied. "And if such sum of money, together with costs (if so ordered), "shall not be paid, either immediately after the conviction, or "within such period as the justice shall, at the time of the con"viction appoint; the justice may commit the offender to the "common gaol or house of correction, there to be imprisoned "only, or imprisoned and kept to hard labour, as the justice "shall think fit, for any term not exceeding two calendar "months, unless such sum and costs be sooner paid. Pro"vided always, that nothing herein contained shall extend to any case where the party trespassing acted under a fair and "reasonable supposition that he had a right to do the act complained of, (e) nor to any trespass not being wilful or "malicious, committed in hunting, fishing, or in the pursuit of 66 game; but that every such trespass shall be punishable in "the same manner as before the passing of this act.” (ƒ) 66 66 The 25th section enacts, that malice against the owner shall not be essential to be proved to establish an offence under that Section 28 enacts, that persons found committing offences act. (b) We have considered this enactment and the decisions thereon, ante, 1 Vol. 407 to 410. There must have been some sensible real damage, and not a mere trespass in law; and therefore the mere fact of repeatedly trespassing, by walking over a party's land without breaking fences, &c. would not, it seems, be within this act; Butler v. Turley, 2 Car. & P. 585; Dewey v. White, Mood. & Mal. C. N. P. 56 ; and Rev v. Turner, R. & M. C. C. 259; and the injury must be charged, and proved as charged; and therefore a charge of maliciously cutting a fence, will not sustain a conviction of carrying away a fence previously severed by another person; Rex v. Harpur, Dowl. and Ry. 223; and the magistrate must really assess the damages accruing according to the evidence; id. ibid. (c) See conclusion of the last note. (d) This provision, as observed, ante, 136, removes all pecuniary motive for perjury. (e) This was to provide for bonâ fuie claims of right; see Kennersley v. Orpe, Dougl. 517; but it must be some fair and plausible colour of title; Hunt v. Andrews, 3 Bar. & Ald. 341; Calcrafi v. Gibbs, 5 T. R. 19; Grant v. Hatton, 1 Bar. & Ald. 134; 1 Burn's J., tit. Conviction, 26th ed. 832,833. (f) And see the Game Act, 1 & 2 W. 4, c. 32, post, 142. CHAP. IV. SUMMARY PRO under the act (g) may be apprehended without a warrant by any peace officer or owner of the property injured, or his servant, ceedings, &c. or person authorised by him. By sect. 29, prosecutions for offences punishable on summary conviction are to be commenced within three calendar months; and the party aggrieved may be a competent witness. Sect. 30 requires a charge upon the outh of a credible witness, and then authorizes the justice to summon the party charged to appear at a time and place to be named in such summons; and requires service of such summons in the same term as in the 7 & 8 Geo. 4, c. 29. s. 65, and authorizes a warrant also as therein mentioned. () Sect. 31 enacts, that abettors in offences punishable on summary conviction, shall be liable to the same forfeiture and punishment to which the principals are liable. The 32d sect. enacts, that any money forfeited for any injury shall be paid to the party aggrieved, excepting when he has been a witness: and then, or in case he be unknown, the same and every, sum to be imposed as a penalty, is to be paid to the overseers of the poor, or other officer, as directed by the justice, and to the use of the general county rate. (?) The 33d section provides, that if the damage or penalty be not paid, the offender is to be imprisoned, with or without hard labor, for a term not exceeding two calendar months, where the sum and costs to be paid do not exceed 5l., or four months if above that sum, and not more than 10, or not exceeding six months, in any other case determinable on payment. (k) Section 34 enables a justice, after a first conviction, to discharge the offender upon his making such satisfaction to the party aggrieved, for damages and costs, or either, as shall be ascertained by the justice. (1) And section 35 enables the King to pardon the party imprisoned. The 36th section enacts, that in case any person convicted of any offence, punishable upon summary conviction, shall have paid the sum adjudged, together with costs, or shall have received a remission thereof from the crown, or shall have suffered the imprisonment awarded for non-payment, or the imprisonment adjudged in the first instance, or shall have been discharged from his conviction in the manner aforesaid; in every such case he shall be released from all further or other proceedings for the same cause. (m) Section 37 prescribes the CEEDINGS, &c. The prescribed form of conviction in 7 & 8 Geo. 4. c. 30, same in sub stance as ante 138, note (u). CHAP. IV. form of conviction, and which is precisely the same as in the SUMMARY PRO- form prescribed in chap. 29, omitting the words in italics. (n) The 38th section provides, that in all cases where the sum adjudged to be paid shall exceed 57., or the imprisonment shall exceed one month, or the conviction shall take place before one justice only, any person who shall think himself aggrieved by such conviction, may appeal to the next Court of General or Quarter Sessions, provided he shall give to the complainant a notice in writing of such appeal, and of the matter thereof, within three days after such conviction, and seven clear days at the least, before such sessions; such person to remain in custody until the sessions, or enter into recognizances to appear and prosecute such appeal, and abide the judgment of the Court. (0) Section 39 enacts, that no conviction shall be quashed for want of form, or removed by certiorari, and no warrant of commitment held void by reason of any defect therein, provided it be therein alleged that the party had been convicted, and there was a valid conviction to support the same. (p) The 40th section directs that all convictions shall be returned to the Quarter Sessions, and how far they shall be evidence in future cases; (q) and sect. 41 contains the usual provision for the protection of persons acting bonâ fide under the provisions of the act. (r) It will be found that these several enactments in the 7 & 8 Geo. 4, c. 30, are in general the same as those in the 29th Chapter of the same session; and the prescribed form of conviction is the same, excepting that the words in italics are to be omitted when proceeding under chap. 30. Fourthly, Proreedings on the Game Act, 1 & 2 W. 4. c. 32, giving summary pro ceedings for trespasses in pursuit of game. The statute 1 & 2 W. 4, c. 32, contains some strong summary measures for the preservation of Game and Rabbits; sect. 12 subjecting even the tenant or occupier to a penalty of 21. if he pursue or give permission to others to pursue, kill, or take game upon land in his own occupation, when the right to the game is exclusively in his landlord or another person, and also to 17. for every head of game killed by him, recoverable before two justices and sect. 24 subjects all persons to a penalty of 57. for every destroyed egg of any bird of game, or of swan, wild duck, teal, or widgeons, recoverable before two justices; and sect. 3 subjects any person to a penalty not exceeding 101. for laying poison to destroy or injure game, recoverable before two jus |