tion before two justices, unless such person shall prove to the satisfaction of the said justices that he was prevented by sickness or such other unavoidable accident as by the said justices shall be deemed a sufficient excuse. Id. s. 8.

Conviction, same as the form, ante, p. 351, to the asterisk*; For that he the said A. B., on, at, was duly appointed a special constable; and that afterwards, on, at, bring called upon to serve as such special constable, he the said A, B. did then and there neglect and refuse to serve as such special constable; or "being ordered and directed by to - he

the said A. B. did then and there neglect and refuse to obey such order and direction, and did not obey the same:] against the form of the statute in such case made and provided, And we do adjudge, c.

Their allowances and expenses.] The justices for the division or limits within which such special constables shall be called out, at a special sessions to be held for the purpose (and which may be adjourned from time to time, s. 14,] may order them such "reasonable allowances for their trouble, loss of time and expenses," as to such justices shall seem proper; and may also order payment of expenses incurred in providing such constables with staves and other necessary articles: such orders to be made upon the treasurer of the county, &c. Id, s. 13.

Or if it be made to appear to any two or more justices of the county, c., on the oath of three or more credible witnesses, that the appointment of such special constables has been occasioned "by the behaviour, or by reasonable apprehension of the behaviour, of the persons employed upon any railway, canal or other public work, made or carried on under the authority of parliament, within the district or division for which such justices usually act," the justices, at any time not exceeding one month after such appointment, may make orders from time to time upon the treasurer or other officer who shall have the control or custody of the funds of the company making the railroad, &c., for payment of such reasonable allowances to such special constables, (not exceeding 5s, a day each) for their trouble, loss of time and expenses, as to the justices shall seem proper; a copy of which order shall be sent by the justices to one of the principal secretaries of state, and if allowed by him, it shall be binding on the company, &c. 1 & 2 Viet, e, 80, 8, 1. The secretary of state, however, may disallow the order altogether, or in part, in which case the expenses shall be paid or made up out of the rate for the county, &c. Id, s. 2. The amount ordered and allowed, two justices may cause to be levied by distress upon the goods and chattels belonging to the company, Id, s. 3,

Assaulting or resisting them.] "If any person shall assault

or resist any constable appointed by virtue of this Act, whilst in the execution of his office, or shall promote or encourage any other person to do so;" penalty not exceeding 201., on conviction before two justices; or he may be indicted. 1 & 2 W. 4, c. 41, s. 11.

Conviction, same as the form ante, p. 351, to the asterisk*: For that he the said A. B., on, at, did assault and resist one C. D., a special constable duly appointed by virtue of the statute in such case made and provided, while in the execution of his said office of special constable; against the form of the statute in such case made and provided. And we do adjudge, &c.

Proceedings for penalties.] The prosecution must be commenced within two calendar months after the commission of the offence. Id. s. 15. The Act gives a form of conviction (s. 17), which is the same as the form ante, p. 351. The penalty shall be paid to some one of the overseers of the poor or other officer of the parish, &c., where the offence was committed, to be by him paid over for the use of the rate for the county, &c.; and no inhabitant shall therefore be deemed an incompetent witness in proof of such offence. Id. s. 15. The penalty may be ordered to be paid, either immediately, or at such time as the justices shall think fit; and if not paid, it may be levied by distress; and for want of sufficient distress, the offender may be imprisoned, with or without hard labour, in the common gaol, or house of correction for not more than one calendar month where the penalty shall not exceed 51., and for not more than two calendar months in any other case, the imprisonment to cease on payment of the sum due. Id. s. 16.

No conviction to be deemed void for want of form, or be removed by certiorari, &c. Id. s. 18. And no warrant to be deemed void for any defect, if it allege that it is founded on a conviction, and there be a good conviction to warrant it. Id.

The Act contains the usual provisions as to notice of action, limitation, venue, plea, tender of amends, costs, &c., in actions, &c. brought against persons acting in execution of this Act. Id. s. 19.

Special constables in boroughs.] In October in every year, any two or more justices of the peace of any borough, shall nominate and appoint, by precept in writing under their hands, so many as they shall think fit of the inhabitants of such borough (not legally exempt from serving the office of constable), to act as special constables within such borough, whenever thereunto required by warrant from any justice of the borough, but not otherwise; "and every such warrant shall recite that, in the opinion of the justice granting the same, the

ordinary police force of the borough is insufficient to maintain the peace of the borough." 5 & 6 W. 4, c. 76, s. 83.

The persons thus appointed shall take the oath in stat. 1 & 2 W. 4, c. 41, ante, p. 350; they shall have "the powers and immunities, and be liable to the duties and penalties," enacted by that Act; and they shall receive out of the borough fund 38. 6d. each, for every day they shall be called out to act. Id. 8. 83.

CONVICTION,

When an information or complaint is laid before a justice of the peace, of an offence, punishable merely upon a summary conviction, having been committed within the county or other district to which his commission extends, it is his duty to have the offender brought before him, to hear the parties and their witnesses, to determine the matter, and to punish or discharge the defendant, according to the directions of the statute upon the subject. And it may be observed, that justices have no authority whatever to proceed against an offender, by way of summary conviction, except in cases where it is given to them, either expressly or by necessary implication, by some particular statute. As therefore not only the conviction itself, but also the preliminary and subsequent proceedings, namely, the information, the summons or warrant, the proceedings at the hearing, and the warrant of distress or commitment, form material parts of this subject, we shall consider them in the following order :

1. The information, p. 356.

2. The summons or warrant, p. 359. 3. Proceedings at the hearing, p. 362.

Before whom, p. 362.

Appearance or default of the defendant, p. 362.

Evidence, p. 363.

Adjournment, p. 364.

Conviction, p. 364.

Adjudication, p. 364.

Costs, p. 365.

4. The conviction, p. 368.

Recital of the information, p. 368.

Summons and appearance, &c. p. 369.

Evidence, p. 369.

Conviction, p. 370.

Adjudication, p. 371.

Conviction to be returned to the sessions, p. 371.

Forms, where the defendant appears and pleads not guilty, p. 374.

where the defendant appears and confesses, p. 375.

where the defendant does not appear, p. 375.

5. The warrant of distress or commitment, p. 376.

Of commitment, where the punishment is by imprisonment, p. 377.

in default of immediate payment of

penalty, p. 377.

in default of payment within a limited

time, p. 378.

Of distress, p. 379, 381.

Of commitment, for want of distress, p. 382.

6. Convictions, &c., how reviewed, p. 383.

By appeal, p. 383.

By certiorari, p. 385.

By action, p. 386.

1. The Information.

An information is the first proceeding against an offender punishable upon a summary conviction. In practice, however, where it is not expressly directed to be in writing by the statute creating the offence, it is never required to be drawn up in form, except in cases where the proceedings are at the suit of a common informer for a penalty: in which cases, whether the informer be entitled to the whole of the penalty, or to a moiety of it only, the magistrate always requires an information in writing, drawn up in regular form, to be lodged with him, before he will grant the prosecutor a summons against the offender. In all other cases, the magistrate usually requires no more than a mere verbal statement of the case by the prosecutor, before the summons is granted, or a statement of it upon oath before he grants a warrant. It is not actually necessary, however, that it should be upon oath, unless the statute creating the offence require it. Basten v. Carew, 3 B. & C. 649. We shall therefore confine our observations under the present head to informations at the suit of a common informer.

An information at the suit of a common informer must state the offence, with the same certainty and precision as an indictment.

It must state the name of the informer, in order that he may not afterwards be called as a witness.

It must state the time at which the information purports to be lodged, and the time when the offence was committed, in order that it may appear on the face of the information that

the prosecution has been commenced within the time limited for that purpose by law: but it is not essential that this time should be stated truly; if there afterwards appear to be a variance in this respect between the information and the evidence, it will be immaterial, if it appear from the evidence that the prosecution was actually commenced in due time.

It must state the place, namely, the parish and county, &c., within which the offence was committed, in order to show that it was committed within the jurisdiction of the justice before whom the information is preferred; see R. v. Hazel, 13 East, 139; but here also, although the information must state the county or other extent of the jurisdiction of the justice truly, it is not necessary that it should be correct as to the parish or other place where the offence is alleged to have been committed, unless, indeed, it be an information for an offence where the statute creating it gives a part of the penalty to the poor of the parish in which it is committed, in which case a material variance between the parish laid and that proved, would be fatal.

And lastly, it must state all the facts and circumstances which constitute the offence, according to the definition of it in the statute on which the information is framed. It is not sufficient, however, to state the offence generally, in the words of the statute, unless the statute be sufficiently specific in itself; but the particular acts done must be set out, in order that it may be seen whether they amount to an offence within the statute or not. R. v. James, Cald. 458. Thus where the defendant was convicted on the Pilot Act, for having continued in the conduct and charge of a ship after a licensed pilot had offered to take charge of it, in the words of the statute, the conviction was holden bad, because it did not allege that the pilot had offered to him or in his presence, or that he, the defendant, had any knowledge of the offer. Chaney v. Payne, 1 Q. B. 712, 10 Law J. 114, m. And if the statute, in the definition of the offence, use any adverbs of intent, &c., as "maliciously," "wilfully," "knowingly," "unlawfully," or the like, care must be taken to use the same, in charging the offence in the information, otherwise it will be bad; see R. v. Jukes, 5 T. R. 536; and if the party be imprisoned, or have his goods seized under a conviction upon it, he may bring his action against the justices. Carpenter v. Mason et al., 12 Ad. & El. 629. Also the information must state all these facts with certainty and precision, with time, place, &c. And it must not state any part of the offence, in the alternative, R. v. Pain, 5 B. & C. 251. R. v. Sadler, 2 Chit. 519. R. v. North, 6 D. & R. 143, unless, indeed, both parts of the alternative be the same in substance, as for instance, charging the defendant with doing an act, or causing it to be done. If there be any exception in the same clause of the statute which creates the offence,