CHAPTER VII. THE FORMAL CONVICTION AND ORDER. As any judgment of the justices, pronounced with reference to a conviction or an order, must be recorded in a formal shape, and as the record itself will, should their judgment be called in question, be the evidence, and frequently the conclusive evidence, of the legality of their proceedings, it is desirable here to consider the rules of law and practice which at the present time regulate and affect these instruments. General Forms of Convictions and Orders.]—Until the passing of the 11 & 12 Vict. c. 43, these instruments were subject to rules of construction and interpretation of a very nice and critical character; so much so, that justices were often made to suffer in damages for formal defects, even where their course of proceeding was wholly free from blame or censure. From time to time a body of abstruse legal learning had been applied to these records, the only practical effect of which was to render the office of a justice of the peace one of considerable risk and difficulty, and to give to crafty and undeserving litigants an opportunity, not only of defeating the ends of justice, but of making a profit out of their frauds and delinquencies. As far as well can be, this evil is now remedied by the 11 & 12 Vict. c. 43, which, by supplying a body of forms for all cases within its operation, has rendered the drawing up of a conviction or an order a matter of little difficulty or risk. True it is, that, inasmuch as this statute excepts from its operation a variety of cases, the forms given by it are not of universal application; but it will be found, that in each of these excepted cases the legislature has provided others, which, by being followed, protect the justices, so that, practically, the evils to which reference has been made no longer exist in any case. Necessity for Care in Convictions, &c.]—It must not, however, be supposed that the drawing up of a conviction or an order is now merely a matter of form, or that precedents given by statute can be made use of, even in cases to which they clearly apply, without the exercise of prudence and care. The great and almost only difficulty upon the subject will consist in showing, upon the face of the record, that such an offence has been committed as warrants the judgment. Nor let it be supposed that this is a light or trivial matter. Occasionally justices are required to convict, or make an order, with reference to transactions of a very technical and involved description; and it often happens that an act, innocent in itself, becomes criminal when accompanied by peculiar or unusual circumstances. In such cases the difficulty will consist in rightly setting out the offence; for however guilty in fact the party may have been, if the conviction fail to set out such an offence as justifies the judgment of the justices, they may expose themselves to consequences of a very embarrassing nature. Conviction or Order, when to be Drawn up.]— It has before been seen (ante, p. 65), that by section 14 of the 11 & 12 Vict. c. 43, the justices, if they convict or make an order against the defendant, are to make a minute or memorandum thereof, and the conviction or order is afterwards to be drawn up by them in proper form, under their hands and seals, and to be lodged with the clerk of the peace, to be by him filed among the records of the quarter-sessions. The formal conviction or order, therefore, need not be, and in practice seldom is, drawn up at the time of the hearing; but a minute being carefully made and entered, it is afterwards, as convenience may suggest or circumstances require, prepared by the justices' clerk and executed by the justices. In cases of great difficulty or novelty, and where litigation is likely to arise, it is not unusual to have these documents prepared by counsel. As, however, this is a cost which must be borne by the particular parties incurring it, and cannot be charged upon the defendant, it will be sustained only where there is a well grounded reason for additional care. Application of Forms given by the 11 & 12 Vict. c. 43.] -It will be convenient at once to consider such convictions and orders as are within the operation of the 11 & 12 Vict. c. 43; and here it must be observed, that, by that statute, the forms given are made to apply not only to all cases where, by the particular statute, no form is given, but in all cases of statutes previously passed, whether any particular form is given or not. The 17th section of the above act, which directs this, is as follows: That in all cases of conviction, where no particular form of such conviction is or shall be given by the statute creating the offence regulating the prosecution for the same, and upon all cases of conviction upon statutes hitherto passed, whether any particular form of conviction has been therein given or not, it shall be lawful for such justice or justices who shall so convict to draw up his or their conviction, on parchment or on paper, in such one of the forms of conviction in the schedule to this act contained as shall be applicable to such case, or to the like effect; and where an order shall be made, and no particular form of order is or shall be given by the statute giving authority to make such order, and in all cases of orders to be made under the authority of any statutes hitherto passed, whether any particular form of order shall therein be given or not, it shall be lawful for the justice or justices by whom such order is to be made, to draw up the same in such one of the forms of orders in the schedule to this act contained as may be applicable to such case, or to the like effect. It will be convenient to consider separately these two instruments. FIRST. CONVICTIONS. CONVICTION FOR A PENALTY TO BE LEVIED BY DISTRESS, AND A. B. is convicted before the undersigned, (one) of Her Majesty's justices of the peace for the said (county), for that he, the said A. B., &c., (stating the offence and the time and place when and where committed), and I adjudge the said A. B., for his said offence, to forfeit and pay the sum of (stating the penalty, and also the compensation, if any), to be paid and applied according to law, and also to pay to the said C. D. the sum of for his costs in that behalf; and if the said several sums be not paid forthwith (or on or before next), (*) I order that the same be levied by distress and sale of the goods and chattels of the said A. B., and in default of sufficient distress (*) I adjudge the said A. B. to be imprisoned in the (House of Correction) at in the said (county), ( there to be kept to hard labour) for the space of unless the said several sums, and all costs and charges of the said distress (and of the commitment and conveying of the said A. B. to the said House of Correction), shall be sooner paid. Given under my hand and seal the day and year first above mentioned, at in the (county) aforesaid. J. S. [L. S.] CONVICTION FOR A PENALTY, AND IN DEFAULT OF PAYMENT, * Or where the issuing of a distress warrant would be ruinous to the defendant or his family, or it appears that he has no goods whereon to levy a distress, then instead of the words between the asterisks (* *) say, "then, inasmuch as it hath now been made to appear to me (that the issuing of a warrant of distress in this behalf would be ruinous to the said A. B. and his family," or "that the said A. B. hath no goods or chattels whereon to levy the said sums by distress), I adjudge," as above to the end. A. B. is convicted before the undersigned, (one) of Her Majesty's justices of the peace for the said (county), for that (he the said A. B., &c., stating the offence, and the time and place when and where committed); and I adjudge the said A. B., for his said offence, to forfeit and pay the sum of (stating the penalty, and the compensation, if any), to be paid and applied according to law, and also to pay to the said C. D. the sum of for his costs in that behalf; and if the said several next), I adjudge the in the sums be not paid forthwith (or on or before said A. B. to be imprisoned in the (House of Correction) at said (county), (and there be kept to hard labour) for the space of unless the said several sums (and the costs and charges of conveying the said A. B. to the said House of Correction) shall be sooner paid. Given under my hand and seal the day and year first above mentioned, at in the (county) aforesaid. J. S. [L. S.] CONVICTION WHEN THE PUNISHMENT IS BY IMPRISONMENT. to wit. Be it remembered, that on the year of our Lord in the said (county), A. B. is convicted before the undersigned (one) of Her Majesty's justices of the peace for the said (county), for that (he the said A. B., &c., stating the offence, and the time and place when and where committed); and I adjudge the said A. B., for his said offence, to be imprisoned in the (House of Correction) at in the said (county), (and there kept to hard labour) for the space of ; and I also adjudge the said A. B. to for his costs in this behalf, and if forthwith (or on or before the said sum for costs be not paid next), then (*) I order that the said sum be levied by distress and sale of the goods and chattels of the said A. B., and in default of sufficient distress in that behalf (*) I adjudge the said A. B. to be imprisoned in *Or where the issuing of a distress warrant would be ruinous to the defendant or his family, or it appears that he has no goods whereon to levy a distress, then instead of the words between the asterisks (* *), say, "inasmuch as it hath now been made to appear to me (that the issuing of a warrant of distress in this behalf would be ruinous to the said A. B. and his family," or "that the said A. B. hath no goods or chattels whereon to levy the said sum for costs by distress), I adjudge," &c. |