the sum of twenty shillings, being the sum due to him for four weeks' allowance, ending on the day of. last, together with five shillings costs. And we, the justices aforesaid, do further order and adjudge that the said H. O. be re-admitted into the said society, and into all the benefits and advantages arising therefrom; and we do order and require you, the stewards and members of the said society, to re-admit the said H. O. into the said society, and into all the benefits and advantages arising therefrom accordingly. Given under our hands and seals at aforesaid, in the county aforesaid, the day of A. D.

§ 4. OF CONVICTIONS, AND APPEALS FROM THEM.

A summary conviction is a record of the proceedings had under the authority of a penal statute, before some justice, magistrate, or commissioner duly authorized to receive information, and to proceed to judgment. (7)

This authority, therefore, being special, and in restraint of the common law, it must appear, on the face of the proceedings, to have been strictly pursued, according to the letter of the act by which it was created, that the justice

the person, being an officer of the society against whom such complaint shall be made, and upon his appearance, or in default thereof, upon due proof upon oath of the service of such summons, shall proceed to hear and determine the same, and award such sum of money to be forthwith paid to the said complainant, as shall appear to them to be due on such award as aforesaid, together with such a sum for costs, not exceeding ten shillings, as to them shall seem meet; and if the said sums shall not be forthwith, and in the presence of such justice or justices, paid to such complainant, or to some person there attending on his behalf, then such justices shall by warrant under their hands and seals, cause such sum and costs as aforesaid, to be levied by distress, of the monies, goods, chattels, securities, and effects belonging to the said society, together with all further costs and charges attending such distress and sale, returning the overplus. (if any) to the said society, or to one of the treasurers or trustees thereof, and in default of such distress being found, then to be levied by distress and sale of the proper goods of the officer or officers of the said society so neglecting or refusing as aforesaid, together with such further costs and charges as aforesaid, returning the overplus (if any) to the owner, and so from time to time, as often as complaint shall be made of the non-payment of any sum or sums directed by such order to be paid as aforesaid. Provided always, that whatever sums shall be paid by any such officer or officers, or levied on his or their proper goods, in pursuance of the order of any justices as aforesaid, shall be repaid, with all damages accruing to him or them, out of the first monies which shall thereafter be received by such society.

(1) The appellation "justice" is usually applied to persons in the commission of the peace for counties, &c.; "magistrate" to persons exercising similar authority under charter, as in cities, boroughs, &c. Some modern statutes relative to the revenue, give power, in some respects similar to commissioners of the public boards.

Information.

has jurisdiction in the case; and that rules similar to those adopted by the common law, in criminal prosecutions, and founded in natural justice, have been observed; unless the statute (as is the case in some instances) should expressly dispense with the form of stating them. Indeed, it is reasonable, that summary convictions should be construed with strictness, because they are taken to be true in fact against the defendant, unless when questioned by him on appeal. And as was said in a recent case, "" no intendment can be made in favour of a conviction, so as to get rid of an objection in point of form." (m)

A conviction then (except when a form is given by the statute creating the offence) contains the following particulars:

First, an information, or charge against the defendant. Secondly, a summons, or notice of such information, in order that he may make his defence.

Thirdly, his appearance, or non-appearance.
Fourthly, his confession, or defence.

Fifthly, the evidence against him, in the event that he do not confess; and,

Sixthly, the judgment, or adjudication.

And, in general, all these matters must be particularly set forth in the record of the conviction.

For the ease, indeed, of the magistrates, the legislature has, in many instances, dispensed with this precise statement, which the law generally requires by prescribing a concise form for the drawing up of the conviction.

And where an act of parliament directs, that all convictions shall be made out in the form, or to the effect following (giving a particular form), a conviction, containing all the substantial parts of the form prescribed will be good, although it be not in the express words thereof, or may contain something more than is directed; but more on this part of the subject hereafter.

First, then, respecting the INFORMATION, which must be the commencement of every proceeding which is not directed to be merely on the view of the offence by a justice. It must contain four circumstances, correctly stated; viz. the time when taken, the place where taken, the authority before which taken, and the charge preferred.

The information should contain the day when it was taken, that it may appear to have been given within the

(m) The King v. Daman, 1 Chit. R. 155.

time limited by the statute. (n) But a mistake in the day, if it were in proper time, will not be material.

If the time limited by the statute be within one or more Time when months, or the like, without expressing that they shall be taken. calendar ones, the limitation must be computed according to lunar months of twenty-eight days each; and not according to the calendar months in our almanacs. Therefore, if the statute limit a prosecution to twelve months in the plural number, such prosecution must be commenced within forty-eight weeks, and not afterwards; but if it expresses a twelvemonth in the singular number, this is to be intended a whole year, it being generally understood that, by the space of time, called thus in the singular number "a twelvemonth," ," is meant a whole calendar year. And when the computation is to be made from an act done, the day, when such act was done, is always inclusive. (0)

The place where the judgment is given, or in other Place where words, where the conviction takes place, must be stated taken. with sufficient precision, to shew that the power exercised was only commensurate with the jurisdiction claimed. There seems some doubt respecting the necessity of naming the county in the body of the conviction, as well as in the margin, in which latter place it always stands.(p) But it appears to be sufficient if the county be in the margin, and the reference to it in the body of the conviction be clear and precise, and without ambiguity. (q) It is, on all hands, however, agreed, as is apparent, that it is better to name the county in the body of the conviction, in order to avoid all possibility of indistinctness and cavil; as it has become an axiom in law respecting convictions, that the subsequent evidence, on the hearing, cannot supply any defect in the previous charge in the information; and, as the latter is the foundation on which all the subsequent proceedings must be founded, precision in the description of locality becomes of primary importance in the information. If the statute, on which the prosecution is founded, be a local one, like those for regulating the sale of hay and coals, within the bills of mortality, or the building act, or that for the improvement of the streets of the metropolis, the place where the fact charged was

(n) 1 Ld. Raym. 509, 582; 2 Bla. Com. 141; Lacon v. Hooper, 6 T. R. 224.

(o) The King v. Adderley, Dougl. 446; Castle v. Burditson, 3 T. R. 623.

(p) Bescaw. 25.

(7) Nares, 7.

Authority of

tice or justices.

committed is, in importance, at least the second ingredient in describing the alleged offence.

The name and style of the justice, or other person convicting jus claiming authority to hear and determine, before whom the information was laid, must be set forth, in order to shew that he has that authority he claims; not only that he has been appointed for the purpose, but that he has acted within his jurisdiction. It is therefore ex. gr. not sufficient to style a man "justice, &c. within the county," but he must be stated to be such justice, &c. "in, and for, the county."(r) When a statute, moreover, gives cognizance of an offence to the next justice, it is not sufficient to name him merely a justice, even in, and for, the county, as none but the next (accessible and obtainable at least) justice can have jurisdiction under those words; (s) but if the statute say, "justices in, or near, the place,' it is only directory, and any justices of the county, or division, &c. it should seem, may act. (t)

The charge.

Names.

The charge should always be reduced to writing. Some of the statutes require it so to be, in totidem verbis; others leave it wholly unnoticed, or only to be collected by inference; and a distinction has been taken between those instances in which the first proceeding is simply a complaint, and those wherein it is styled an information. There seems, on examination, to be little foundation in principle for this distinction. This proceeding is altogether admitted to be in derogation of the common law, and the information, and conviction, to stand in lieu of an indictment and verdict: it should seem, therefore, that, on principle at least, the information should be assimilated, as much as possible, to the indictment in all points, the first of which is being reduced to writing. It seems in all cases reasonable also that the informer's name should appear; whenever any part of the penalty is given to him by statute, it is indispensable; because in those instances, upon the common principles of evidence, such interested informer is rendered incompetent to be a witness; (u) therefore the conviction must be supported on other testimony. The names of each, and every, of the de

(r) 2 Salk. 473.

(s) Dalt. c. 6; Dougl. 66.

(t) The King v. Stephen, Cald. 302. It may, however, be worth consideration (especially if the defendant, after hearing, be acquitted) how far it may prove justifiable to drag a defendant, capriciously, and without good cause, before a magistrate living at a great distance, though within the county, when there are others accessible residing, according to the words of the act, near.

(u) Lord Raym. 1545; 3 Burr. R. 1473.

fendants ought also to be inserted, and none of them under any general title or description, as ex. gr. A. B. and company. (v) And it seems no exception to this rule, that one of the defendants is a woman, and a fémé covert; for it has been determined, even in a case where a previous contract (which it was observed a féme covert could not enter into without her husband) partly constituted the very nature of the offence, that "it was not necessary to join the husband, and that in every crime which a féme covert can commit alone, it is sufficient to charge her in a conviction." (w)

It is necessary, on the subject of names, to observe something with respect to another party comprehended in some informations, viz. where the penalty of the offence is a pecuniary one, and given to the owner of property injured. In such cases, his name is certainly material. On this subject, the cases of the King v. Čorden, (x) and the King v. Damar, (y) are decisive.

The essential requisite in charging an offence, is, that it Description of contain a direct charge, and not facts from which the im- the offence. putation of an offence is to be inferred, however plainly ;(z) and, in express terms, every ingredient that is necessary to constitute the crime described by the statute itself. Thus, if knowledge, or consciousness in the offender, be made to constitute a part of the guilt of the transaction, such knowledge or consciousness, must be directly averred, and nothing less will serve; so, if the day, or hour, at which the act be done, as under some of the game laws; or the place in which it be committed, as in the acts for the preservation of fish; or the age of any party mentioned in the conviction, as in the coach regulation act; the same precision in averment is necessary; for no intendment can be admitted in order to assist a description defective in an essential ingredient. (a) And if the oath of the informant be requisite by the terms of the statute, it must appear on the face of the information that he was sworn. (b)

Although the description of the offence must be such as When a doubt to bring it clearly within the words of the act, which de- in the precise clares it, or punishes it, many cases might be cited to shew

words of the

statute will

not suffice

(x) The King v. Corden, 5 Burr. 2279.

The King v. Damar, 2 B. and A. 378.

The King v. Bradley, 10 Mod. 155.

The King v. Trelawny, 1 T. R. 122; 2 Ld. Raym. 791,

b) Boscaw. 16.