exception in favour of particular cases, or in the same clause (but not in the enacting part of it), by words of reference or otherwise makes such proviso or exception, then the proviso is matter of defence or excuse, which need not be specially set out or negatived (g). And a general averment is not sufficient; it must be averred that the defendant had not the qualifications mentioned in the statute (h). If a subsequent statute makes an exception to a former one, it is incumbent on the defendant to shew, by way of defence, that he comes within the exception (i). What circumstances ought to be negatived.] In all cases where an act made punishable by summary conviction may be lawful if performed under certain circumstances, these circumstances ought to be negatived in the conviction (), as they are plainly implied and form necessary ingredients in the offence (k). In re Turner (7) the conviction was quashed, because it merely stated that the defendant absented himself from his master's service, and Williams J. said:-" "I always thought that the law was properly laid down by Lord Mansfield in R. v. Corden (m), that if the fact as charged may be consistent with the innocence of the prisoner, no offence is charged. The question then comes to

(g) 1 Burn. J. tit. Conviction, p. 972, 29th ed. As to the legal distinction between a proviso and an exception, see Simpson v. Ready, 12 M. & W. 736; Charter v. Greame, 13 Q. B. 226.

(h) All the authorities on this point are reviewed in R. v. Jarvis, 1 Burr. 148; and a full report in 1 East, 643; see, however, Cook v. Swift, 14 M. & W. 235; Stamp v. Sweetland, 8 Q. B. 13. The want of the qualification must appear at the time of the offence committed, R. v. Silcot, 3 Mod. 281; see the following numerous cases on the subject of negativing exemptions collected in Paley Conv. 192 et seq. 2 Hawk. P. C. c. 25, s. 113, R. v. Bell, Fost. C. L. 430; Spieres v. Parker, 1 T. R. 141; Gill v. Scrivens, 7 T. R. 27; 1 Wm. Saunders, 262 a, 6th ed.; R. v. Jukes, 8 T. R., 542; R. v. Matters, 1 B. & Ald. 362; R.

v. Clarke, Cowp. 35; Wells v. Iggulden, 3 B. & C. 189; Steel v. Smith, 1 B. & Ald. 94; Looker v. Halcombe, 4 Bing. 183; Jones v. Axen, 1 Ld. Raym. 120; Thibault v. Gibson, 12 M. & W. 96; Charter v. Greame, 13 Q. B. 227; R. v. Pratten, 6 T. R. 559; R. v. Mathews, 10 Mod. 27; R. v. Marriott, 1 Str. 66; R. v. Ford, ib. 554; R. v. Hill, 2 Ld. Raym. 1415; R. v. Theed, id. 1375; R. v. Wheatman, Doug. 232; R v. Pickles, 1 Burr. 150; Van Boven's case, 9 Q. B. 669.

(i) R. v. Hall, 1 T. R. 320; R. v. Turner, 5 M. & S. 206; R. v. Marsh, 4 D. & R. 260; see Thibault v. Gibson, 12 M. & W. 88.

(j) Fletcher v. Calthorpe, 6 Q.B. 880.

(k) See Paley on Conv. 182, 4th ed.
()9 Q. B. 80.
(m) 4 Burr. 2279.

this, on whom is the onus of negativing the excuse? . . . Many cases may be put, in which a party may absent himself from service within the general terms of the statute consistently with perfect innocence; the onus, therefore, is on the complaining party" (n).

Specifying particular sums, quantities, &c.]

Another con

sideration to be attended to in describing the offence is, that particular sums and quantities must be specified, in order that the accused may be enabled to defend himself against a second charge (o). An additional reason for enumerating particular quantities, &c., exists in those cases where the magistrate is directed to award compensation according to the injury, or to assess a penalty by way of damages (p).

Second offence.] If the conviction be for a second offence under the Larceny Act, 24 & 25 Vic. c. 96, the magistrates should make it appear that it is one for a second offence, or else the conviction might be held bad, as shewing a sentence exceeding in amount that which J.P.s have power to award for a first offence.

Variance. Summons for one offence and conviction for another.] The defendant should only be convicted for the offence for which he was summoned, and if it appears from the record that he has been convicted for another offence, the conviction will be bad. The proviso contained in the 39th section of the Petty Sessions Act, that no objection shall be taken or allowed in any proceeding to any information (q), complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between any information, complaint, or summons, and the evidence adduced on the part of the informant or complainant is only intended to meet the case of a variance, and does not give

(n) See Paley on Conv. 184; re Geswood, 2 El. & BL. 952; 14 & 15 Vic. c. 92. s. 16.

(0) R. v. Catherall, 2nd Str. 900; Cro. Car. 380; R. v. Marshall, 2 Keb. 594; Newman v. Hardwicke, 8 A. & E. 124; 3 N & P. 368, S.C.; Newman v. Bendyshe, 2 P. & D. 340; but see Wray v. Toke, 12 Q.B. 492; London and North Western Railway Company v. Wetherall, 20 L.J.Q.B.

337.

(p) See Paley on Conv. 190; R. v. Burnaby, 2 Ld. Raym. 900; 1 Salk. 181; Charter v. Greame, 13 Q. B. 216; see R. v. Rabbits, 6 D. & R. 341; R. v. Gamble, 16 M. & W. 384; R. v. Arnold, 5 T. R. 353; R. v. Dove, 3 B. & A. 596,

(7) See post for the note to that section, 14 & 15 Vic. c. 93, appendix.

power to magistrates, where a person is summoned for an offence punishable in one way, to convict him of one punishable in another and different way (r). The word "variance" points at some difference between the allegation in the summons or information, and the evidence adduced in support of it (s).

Description of property, &c. in the conviction.] As regards the description of property in a conviction, it is provided by the Petty Sessions Act (t), that it shall be sufficient in any information, or complaint, or proceedings thereon, to describe the property belonging to or in the possession of partners, jointtenants, parceners, or tenants in common, as the property of any one of such persons who shall be named, and of another or others without naming them, as the case may be; and any work or building made, maintained, or repaired at the expense of any county or place, or any materials for the making, altering, or repairing of the same, as the property of the inhabitants of such county or place respectively; and any goods provided by guardians of the poor, or their officers respectively, for the use of the poor, as the goods of the guardians of the poor of the union to which the same belong, without naming any of them; and any materials and tools provided for the repair of highways, at the expense of baronies or other districts in which such highways may be situated, as the property of the county surveyor or surveyors respectively, without naming him or them; and any materials or tools provided for making or repairing any turnpikeroad, and any buildings, gates, lamps, boards, stones, posts, fences, or other things erected, or provided for the purpose of any such turnpike-road, as the property of the commissioners or trustees of such turnpike-road, without naming them; and any property of any persons described in any act of parliament, or in any charter or letters of incorporation, as commissioners, directors, trustees, or by any other general designation whatsoever, as the property of such commissioners, directors, trustees, or persons described by such other general designation, without naming them; and whenever it may be necessary to mention

(r) See Martin v. Pridgeon, 28 L. J. M. C. 179.

(s) Id.

(t) 14 & 15 Vic. c. 93, s. 38.

any of such persons or parties in any suit, information, or complaint, it shall be sufficient to describe them in manner aforesaid.

Of the adjudication.] The seventh column of the order-book contains the adjudication of the magistrates and the particulars of the order (or conviction), or the dismissal, as the case may be. The head of the column, as will be seen by reference, contains printed instructions as to how it is to be filled. It is unnecessary to enter into a detail of the authorities on the subject of this adjudication, as the order-book is the form now used in petty sessions by justices, except in cases where a particular form is given by a subsequent statute. It is sufficient to say that there must be an express adjudication of the penalty, and this is as requisite in convictions upon those statutes which assign a corporeal punishment only, as well as upon those by which the penalty is pecuniary (u). But it should be observed that where two punishments are described in the alternative by a statute, ex. gr. "if any person shall assault another, he shall be liable to a fine, or to be imprisoned," it is for the magistrate to determine which of these is to be inflicted; for he cannot inflict both; and when he selects the former penalty, he should issue his distress warrant before the imprisonment.

The dismissal.] The dismissal should be entered as an order; for instance, if the defendant's case be stronger than the plaintiff's, then the complaint should be dismissed, and an entry made accordingly. If the case has been fully heard, it is a dismiss on the "merits." If the magistrate thinks that from any cause whatever, it would not conduce to justice to dispose of the case upon the evidence before him, but that an opportunity ought to be given to the complainant to re-agitate the matter upon further or additional evidence, or in another form, he may dismiss the complaint "without prejudice" to the complainant instituting further proceedings.

Form of judgment where two offences charged.] If two distinct offences be charged in the information or summons, judgment that the defendant is convicted of the said offence would be bad

(u) R. v. Vipont, 2 Burr. 1163; R. v. Ashton, 8 Mod. 175; 1 New

Sess. Ca. 346.

for duplicity, for it would not appear of which offence he is convicted (v).

Act under which conviction made to be stated.] The eighth column of the order-book directs that the particular statute under which the order or conviction is made should be stated. It would be advisable also for justices to state the section as well, for if a statute gives summary proceedings for various offences specified in several sections, a conviction is bad which leaves it uncertain under which section it took place (w).

How fine to be paid.] The ninth column likewise requires a statement to be entered, directing when and how the amount of the fine is to be paid, and the nature of the warrant that is to issue in default of payment, whether it is to be a warrant of distress, commitment, or otherwise; for justices have power, under the Petty Sessions (Ireland) Act, 1851 (x), in any case where they are authorized to award any penal or other sum, to fix the time and manner of payment, and to order distress to be made upon non-payment of the sum; and in cases of assaults (y) may order the fine and costs to be paid within such periods as the J. P. shall at the time appoint, and if not then paid, they may commit the offender to gaol. It is to be remarked that whether the offence is in its nature single or joint, the fine ought to be sevred against each defendant, in the case of several defendants; otherwise one who had paid his proportionable part might be continued in prison till all the others have paid theirs; which would be in effect to punish him for the offence of another (z).

Of ordering imprisonment.] The tenth column of the orderbook requires the time of imprisonment to be stated, and whether it is to be with or without hard labour, or in default of payment of the fine, and to what gaol or bridewell the party is to be committed. In every case of an offence, where the act shall

(v) R. v. Salamons, 1. T. R. 251; Newman v. Bendyshe, 10 A. & E. 11; 2 P. & D. 340, S. C.; see Lockwood v. Attorney-General, 10 M. & W. 464; Wray v. Toke, 12 Q. B. 492; R. v. Drake, 2 Sho. 489.

(w) Charter v. Greame, 13 Q. B.

216.

(x) 14 & 15 Vic. c. 93, s. 22. (y) 24 & 25 Vic. c. 100, s. 42. (z) 2 Hawk, c. 10, s. 6; Morgan v. Brown, 4 A. & E. 515; 6 Nev. & M. 57, S. C.