CHAP. IV. SUMMARY PRO tice to ascertain the contingent expense. (q) In a late case it CEEDINGS, &c. appeared that the warrant of commitment, under the then Stage Coach Act, 50 Geo. 3, c. 48, recited the conviction, from which it appeared that the defendant had been committed by the justices for three months, "unless before that time he pays the "sum of 6l., together with the expenses of the warrant, viz. 66 a sum of shillings," without specifying the precise sum he was to pay for expenses; and Abbott, C. J., said the defendant here certainly cannot know on what terms he is to be discharged, and the gaoler is equally in the dark. The conviction and commitment should have ascertained precisely what sum for expenses the defendant was to pay. Let the conviction be quashed and the defendant discharged. (r) But the 27 Geo. 2, c. 20, s. 2, enables the constable or officer making a distress for a penalty, to deduct the reasonable charges of taking, keeping, and selling the distress, out of the money arising from the sale, and he is to pay the overplus to the party distrained upon; and in that case the officer, and not the justice, is to fix correctly and at his peril, the reasonable costs. (s) If the officer retain too much, he may be sued for the amount; (t) and if he neglect to return what he has done, the justice may fine him. (u) The form prescribed in 3 Geo. 4, c. 23, concludes, "Given conviction, and under my hand [or, under our hands] and seal, the "of in the year of our Lord -." This form implies that the convicting justices must respectively sign and actually formally seal and deliver or execute the conviction as if the same were their deed, the latter ceremony importing that they have fully considered or resolved upon the antecedent conviction as the result of their judgment and determination. (v) These were always at common law considered essential to the validity of a conviction. (w) The date is essential to show the time when the conviction was made, which sometimes we have seen is Conclusion of the date, signing and sealing. day (q) R. v. Payne, 4 Dowl. and R. 72; R. v. Symons, 1 East, 189; R. v. Patchett, 5 East, 330; R. v. Nottingham, 12 East, 57; and see R. v. Elwell, 2 Lord Raym. 1514; R. v. Hill, Cowp. 60, S. P. (r) R. v. Payne, 4 Dowl. and R. 72. In these cases the justice might with propriety insert a sum in his conviction and warrant to levy or commit sufficient to cover any contingent prospective expenses, as the reasonable expenses of the constable in travelling to make a distress or seizure, the keeping such distress for seven days, the valuing the same, and the expense of an auctioneer's selling the same, with the auction duty, if any; and then if the defendant should pay the amount immediately he might be allowed a rebate for charges not in curred. (s) See also the general act, 5 G. 4, c. 18, post. (t) Umphelly v. M'Lean, i B. and Ald. 42. (u) 1 Salk. 380; Paley, 244. (v) Ante, 198, in note; Plowd. 308. (w) R. v. Eleval, 2 Stra. 794; Basten v. Carew, 3 B. and Cres. 649; Dalt. Justice, chap 115. CHAP. IV. SUMMARY PRO essential; (a) and yet it has been holden that if the date were impossible or incongruous, it may be rejected as surplusage, and CEEDINGS, &c. will not vitiate if the correct time can be ascertained. (.r) But the time of the actual subscription and sealing is not material, nor need it correspond with that on the face of the conviction. (y) We have considered when in case of a conviction by two or more justices, they must be both present together at the same time pending the hearing of the evidence, and actually concur and sign their conviction. (z) lar statutes. The foregoing observations principally refer to the common Convictions law requisites of a conviction, and those prescribed by the upon particugeneral act, 3 Ceo. 4, c. 23, but which expressly excepts other cases where any particular act prescribes another form; (a) and we have seen that most of the modern acts, as the 7 & 8 Geo. 4, c. 29, and c. 30, 9 Geo. 4, c. 31, 1 & 2 W. 4, c. 32, prescribe a particular form to be observed, and which must not be materially departed from. (b) As respects these, as well as convictions in the form prescribed by the 3 Geo. 4, c. 23, the general rule to be observed is, that the very words directed to be used, must be literally pursued, when the statute says, that the conviction shall be in the form following: (c) or if the enactment be “or "in words to the same effect," then that the conviction must either strictly adopt the prescribed form, or at least must be according to the intent and purpose of the act. (d) And in all these cases, as under the 3 Geo. 4, c. 23, the justice might, by mandamus, be compelled to reform an imperfect conviction, according to the spirit of the statute. (e) Some acts give so general a form of conviction, as not even to disclose what particular offence had been committed, but merely that "the party was convicted of a certain offence contrary to law," (f) whilst others permit the omission of any statement of the information, summons, or evidence, and merely require the magistrate to shew of what offence he has convicted the party. In these cases it has been justly observed, that great precision and certainty 66 SUMMARY PRO CHAP. IV. ought to be, and is required, in showing the jurisdiction of the CEEDINGS, &c. justice, and the offence, and a negative of all circumstances that might by any exception in the enacting clause in the act have afforded ground of defence. (g) Very frequently a concise and prima facie very easy form, is given in particular acts, with a short direction in these terms: "here state the offence," leaving a blank in the form where it is to be introduced. In these cases the justice must observe all the requisites of an information in stating the offence, which we have already so fully considered. (h) So that in those cases, he in reality incurs more trouble and risk than in ordinary cases, where the informer must lay before him an information in all respects unobjectionable. (i) In these, and indeed in all other cases, unnecessary particularity in stating more than is absolutely required will not prejudice, but will be rejected as surplusage; (k) and therefore in cases of doubt, the best course is to set forth every thing that has been proved. (1) Defects in convictions, when aided. If it appear upon the face of a conviction that no offence was committed, then it will be invalid; and in case any proceeding by distress or imprisonment should take place under colour of the same, the magistrate who issued the warrant thereon will, although the conviction remain unquashed, be liable to an action of TRESPASS for the seizure or imprisonment; or if the same has been quashed, he may be liable under the 43 Geo. 3, to an action on the case, if malice can be proved. (m) If a conviction be legal on the face of it, then as long as it stands unquashed, it will protect the magistrate for any thing done under it. (n) In these cases also, if the conviction, although correct in form, was nevertheless improper on the merits, and an appeal has been expressly given to the convicted party; he may again try the merits on certain terms by appeal to the session, (viz., in general those of entering into a recognizance, and giving notice of appeal); and if there be a material defect in the conviction or previous proceedings, and the writ of certiorari be not expressly taken away, then the defendant may remove the same into the Court of King's Bench, and (g) Dick. Sess. 3rd ed. 394, 5; R. v. Neild, 6 East, 417. (h) Ante, 162, to 169. (i) R. v. Hazell, 13 East, 139. (1) R. v. Jefferies, 4 T. R. 768. (n) Gray v. Cookson, 16 East, 21; 1 Brod. & Bing. 432, 457; 7 T. R. 623, and post, 228 to 231. SUMMARY PRO CEEDINGS, &c. there cause the conviction to be quashed and prevent process CHAP. IV. thereon; or if such process has issued and been enforced, he may obtain restitution, or release from imprisonment. At common law it frequently occurred, that although the conviction was just and proper as regarded the defendant's guilt, yet some formal defect was afterwards discovered by the defendant in the conviction, which enabled him to quash the conviction, and this at a time when it was too late to proceed de novo; and although some particular statutes limited the defendant's power in a few cases, there was no general statute of amendment relative to conviction, until the 3 Geo. 4, c. 23; the 3rd section of that statute therefore enacted, "That in all cases where it appears by the "conviction, that the defendant has appeared and pleaded, and "the merits have been tried, and that the defendant has not appealed against the said conviction when an appeal is al"lowed, or if appealed against, the conviction has been affirmed, "such conviction shall not afterwards be set aside or vacated "in consequence of any defect of form whatever; but the "construction shall be such a fair and liberal construction, as "will be agreeable to the justice of the case." It will be observed, that this act only applies to a conviction after the defendant has appeared and pleaded, and only extends to defects in form; convictions therefore ex parte, where the defendant having been summoned, has neglected to appear, or having appeared will not plead, or otherwise say not guilty, and defend upon the hearing, are not, when defective even in form, aided by this act, nor are defects in substance in any case aided. It was decided under an antecedent act, containing an aiding clause somewhat similar, that the omission to state in the information and conviction, exceptions in the enacting clause, was a defect in substance, not aided by such enactment. (o) j We have seen that appearance and pleading to an information, aids any defect in the summons, or even the total omission thereof, unless the defendant prays further time. (p) tion, and re turning con We have adverted to the perhaps questionable right of the Delivery of defendant to have a copy of the conviction delivered to him by copy of convicthe justice; and the duty of the justice, within a reasonable time, to return his formal conviction in writing to the clerk of the sessions, in order that the defendant may at least there viction to sessions. SUMMARY PRO CHAP. IV. obtain a copy, and take due proceedings for an appeal when CEEDINGS, &c. given, and to secure the due appropriation of the penalty when paid or levied. (q) If the justice has delivered a copy to the defendant, and returned a varying copy to the sessions, the Court can only proceed on the latter. (r) Enforcing the payment of penalty or punishment. Execution on the conviction by warrant of distress or of imprisonment. Distress war rant. (x) When a reasonable doubt is suggested as to the legality of the conviction, or the right, or the means of enforcing payment of the penalty or punishment, the Court of King's Bench will not compel the justice to incur the risk of an action; (s) but will by mandamus compel the issuing of a proper warrant, if the suggestion of risk be colourable or not unreasonable. () The general rule is, that when a conviction is of doubtful validity, the Court will not compel a justice to issue his warrant; (u) but if the objection be merely in a defect in form, and therefore the conviction is not void, or would be aided by 3 Geo. 4, c. 23, s. 3, then it would be otherwise. (v) The modes of enforcing a conviction adjudging that a pecuniary penalty shall be paid, either with or without costs, depend entirely on the particular act creating the offence, and whether it expressly authorizes a distress warrant. If it contain such an express enactment, then the general act 5 Geo. 4, c. 18, enables the justice either to issue a distress warrant or a warrant of commitment; and which by the 2nd section of 3 Geo. 4, c. 23, may be issued either by the convicting justices, or by any one justice of the county where the conviction took place; and it should seem that in all cases, the payment of the costs of a summary conviction may be enforced by distress, under the express enactment of 18 Geo. 3, c. 19. (w) But at common law, and by the present general law, no warrant of distress upon goods can be issued or levied; and it is only by particular statute and express enactment, that even at this day a distress can be made. (a) Therefore in each particular case the statute upon which the summary proceeding is founded must be examined, to ascertain the precise powers. The general act 5 Geo. 4, c. 18, s. 1, only applies in cases where |