the information must show, negatively, that the defendant or the subject of the information does not come within the exception; see 1 T. R. 141, 15 East, 456; but if an exception or proviso be in a subsequent clause or statute, see R. v. Hall, 1 T. R. 320, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, 1 B. & A. 94, it is in that case matter of defence for the other party, and need not be negatived in the information.

If the information do not state all the facts and circumstances which constitute the offence, as defined by the statute; or if it do not state them with sufficient certainty and precision; or if it do not negative the exceptions in the statute, when it ought: the defendant may object to it on these grounds, and the justice should dismiss the complaint.

In general it will be sufficient to state the offence, in the same manner as in a conviction; the forms of which the reader will find under their proper heads throughout the work.

By stat. 31 Eliz., c. 5, s. 5, informations at the suit of an informer, where the penalty is limited to the king, and to any person who will sue for the same, must be brought within one year from the time the offence was committed. In many cases, however, a less time is limited by the statute creating the offence.

By stat. 18 Eliz., c. 5, s. 1, the informer must exhibit his information in person, and shall not "have or use any deputy or deputies at all.”

The following is the form of an information at the suit of an informer, where he is entitled to a portion of the penalty only; or, as it is usually termed, an information qui tam:

day of
in the said

Berkshire, Be it remembered, that on the to wit. in the year of our Lord. —, at county, C. D., of · in the county aforesaid, labourer, who as well for our sovereign Lady the Queen," or, "for the poor of the parish of - in the said county, (or as the statute may be) as for himself, doth prosecute in this behalf, personally cometh before me, J. P., one of Her Majesty's justices of the peace, for the said county, and [as well for our said Lady the Queen (or, the poor of the said parish), as for himself] informeth me that A. B., late of the parish of in the county aforesaid, labourer, within the space of [one year" or whatever time is limited by statute] "now last past, to wit, on the· day of

" in the year aforesaid, at the parish of ——, in the county aforesaid" [here state the facts and circumstances constituting the offence, as defined by the statute creating it; vide supra ;] contrary to the form of the statute in such case made and provided: whereby and by force of the statute in such case made and provided, the said A. B. hath forfeited for his said offence the sum of Wherefore the said C. D. who sueth as afore

said, prayeth the consideration of me the said justice in the premises, and that the said A. B. may be convicted of the offence aforesaid, and that one moiety of the said forfeiture may be adjudged to [our said Lady the Queen], and the other moiety thereof to the said C. D., according to the form of the statute in that case made and provided; and that the said A. B. may be summoned to appear before me and answer the premises, and make his defence thereto.

Where a statute gives the whole penalty to the informer, an information can readily be framed upon it from the above precedent, by merely omitting those parts of it which are applicable only to an information qui tam.

In

There is no objection to an information charging the defenIdant with several offences. R. v. Swallow, 8 T. R. 286. such a case, after the words "hath forfeited for his said offence the sum of ," you may state the second or subsequent offence thus: And also that the said A. B. on —, at &c. stating the offence to the words "hath forfeited for his said last-mentioned offence the sum of - "concluding the information in the above form, wherefore the said C. D." &c. But where, in a summary conviction on one of the statutes relating to beer shops, (3 & 4 Vict., c. 61, s. 15,) it was stated that the party had kept his house open for the sale of beer, and had sold beer, and had suffered and permitted beer to be consumed upon his premises, after the hour limited for that purpose, and the party was convicted "for the offence aforesaid:" the court held the conviction bad, as it stated three offences, and it could not be known of which of them the party was convicted. Newman v. Bendyshe et al., MS. 2 B, 8 Law J. 58, m. 10 Ad. & El. 11.

One justice of peace may receive the information and grant a summons or warrant upon it, in all cases, even in those in which the conviction must be by two or more justices. 3 Geo. 4, c. 23, s. 2.

2. The Summons or Warrant.

Summons.] As soon as the information is lodged, if it state an offence cognizable by a justice of the peace, punishable upon summary conviction, and committed within the jurisdiction of the justice to whom it is preferred, the justice will immediately grant a summons, requiring the defendant to appear before him. And this is in all cases necessary, where the party complained of will not appear voluntarily. See R. v. Allington, 2 Str. 679. R. v. Venables, ld. 630. R. v. Hall, 6 D. & R. 84. Painter v. Liverpool Gas Company, 3 Ad. & El. 433.

The summons may be directed either to the party accused,

or to the constable or other third person. It should state a particular time and place for the party's attendance; and a reasonable time should intervene between the granting of the summons and the time appointed for the party's attendance, in order that he may have an opportunity of collecting his witnesses, and preparing for his defence. See R, v. Mallinson, 2 Burr. 679. Where a statute directed that the summons should be served ten days at least before the time appointed for the hearing, this was holden to mean ten clear days, exclusive of the day of the service and the day of the hearing; and when it appeared upon the face of a conviction upon default of appearance, that there were not ten clear days between the service of the summons and the hearing, the conviction was holden bad. Mitchell v. Foster et al., 12 Ad. & El. 472. One justice may grant it, even in cases where the conviction must be by two or more justices. 3 Geo. 4, c. 23, s. 2. The following is the form of the summons:

Berkshire, to wit: To the constable of · Whereas A. B. of in the county aforesaid, labourer, hath this day been charged before me, J.P. one of Her Majesty's justices of the peace for the county aforesaid, on the oath of a credible witness, for that he the said A. B., on ———, at did" [&c. here state the offence as in the information, or in the form of conviction in such a case: " These are therefore to require you forthwith to summon the said A. B. to appear before me at, in the said county, on [Wednesday] next, the [third day of July instant], at the hour of eleven in the forenoon of the same day, to answer to the said charge, and to be further dealt with according to law: and be you then there to certify what you shall have done in the premises. Herein fail you not. Given under my hand and seal the in the year of our Lord

day of

J. P.

It is usually thus directed to the constable of the district within which the party accused resides or is to be found, for he alone is punishable for not executing it; See stat. 5 Geo. 4, c. 18, s. 6: if directed to the party himself, it is in the same form in substance, only in the second person instead of the third.

Where the summons is directed to the constable, or a third person, a copy of it plainly and legibly written on paper, should be served personally upon the party accused; if directed to the party himself, the original should be personally served upon him, and a copy of it kept by the party serving it. If the statute creating the offence, contain no directions as to the time of serving the summons, it should be served a reasonable time before the day appointed for the hearing; but if it contain any such directions, care must be taken to pursue them

strictly. Where the statute required that the summons should be served "ten days at the least," before the time of hearing, and it was served on the 20th September, and the conviction was on the 30th, the defendant not appearing: the court held that the "ten days at the least," meant ten days exclusive of the day of the service and of the day of the hearing, and that therefore on the 30th the magistrates had no jurisdiction to convict; and that having issued a distress warrant upon the conviction, under which the defendant's goods were taken, they were liable to an action of trespass. Mitchell v. Foster, 9 Law J. 95, m. It should be personally served upon the party accused, (unless where personal service is expressly dispensed with by statute), otherwise if the party do not attend at the time appointed, it would be imprudent for the justice to proceed to hear the case in his absence. R. v. Hall, 6 D. & R. 84. If, however, he appear, his appearance will cure every defect in this respect. R. v. Stone, 1 East, 649. R. v. Johnson, 1 Str. 261.

Warrant.] A justice of peace cannot grant a warrant upon an information, unless expressly authorized to do so by statute. And even in cases where such authority is given, a warrant is seldom granted in the first instance, unless in cases where it is likely that the party will abscond, as soon as he hears that the complaint has been lodged against him. Nor is it usual to grant it after a personal service of the summons; for in that case the justice may proceed to hear and determine the case, whether the party accused appear before him or not. See R. v. Simpson, 1 Str. 44. Arch. Peel's Acts, 172, 250. But if the party cannot be personally served with the summons, and there be reason to think that he keeps out of the way in order to avoid a personal service of it, or if, under the peculiar circumstances of any case, a warrant be deemed advisable in order to prevent the party's absconding before the case can be heard, or the like: then, in cases where a warrant may legally be issued, the justice, upon application, and upon the matter of the information or complaint being substantiated before him upon oath, will grant a warrant, requiring the person to whom it is directed to apprehend the party complained of, and bring him before the same or some other justice of the peace, to answer to the charge against him. The following is the form of the warrant :

Berkshire: To the constable of - and all other peace-officers in the said county of Berks.

Forasmuch as A. B., of - in the county aforesaid, labourer, hath this day been charged before me, J. P., one of Her Majesty's justices of the peace for the county aforesaid, on the oath of a credible witness, for that he, the saia A. B., on —, at

did [&c. here state the offence as in the information, or in the

form of conviction in such a case]; "These are therefore to command you, in Her Majesty's name, forthwith to apprehend and bring before me, or some other of Her Majesty's justices of the peace in and for the said county, the body of the said A. B. to answer unto the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, the in the year of our Lord

day of

J. P.

It is not made returnable at any particular time; but remains in force until executed. Dickenson v. Browne, Peake, 234.

3. Proceedings at the Hearing.

Before whom.] In some cases the statute creating the offence allows the conviction to be by one justice; in other cases, it requires it to be made by two; in others, (as in Sir R. Peel's Acts, for instance,) although the conviction may be by one justice, yet if it be before two or more, an additional punishment, such as whipping or the like, may be adjudged to the defendant. This subject, however, is entirely regulated by the statute, which gives cognizance of the offence to justices of peace, in each particular case; and to which the reader is referred. If the statute allow one justice to convict, the conviction may be by two or more; but where the statute requires the conviction to be by two justices, a conviction by one would be coram non judice, and void, and the justice making the conviction, and the constable executing it, would be liable to an action of trespass, if the party's goods were distained upon, or himself committed.

It may be necessary to mention that the room or place in which the magistrate sits, to hear and determine a matter of complaint thus in a summary way, is in law a public and open court, to which the public generally may have access. And the party accused shall be admitted to make his full answer and defence, and to have all witnesses examined and crossexamined, by counsel or attorney. 6 & 7 W. 4, c. 114, s. 2.

Appearance or default of defendant.] Upon the accused party's appearing before the justice, either in obedience to the summons, or upon being apprehended and brought there under a warrant; or where, after personal service of the summons, the party does not attend at the time and place appointed by it, and oath is duly made of the service :-the justice then proceeds to the hearing of the case.

The information (if one have been drawn up in form) is first read to the defendant; or if no information have been drawn up, then the charge is read to him from the summons or warrant; and he is asked what he has to say to the charge