As

fact; Rex v. Harwood, 2 Stra. 1088; 2 Burr. 1716, 1768; Rex v. Constable, 7 D. & R. 663; 3 M. C. 488. this is a privilege of common right, which requires no special provision to entitle the defendant to the advantage of it, so it cannot be taken away by any custom; Rex v. Cambridge (university), 8 Mod. 163. Upon a sufficient information properly laid, the magistrates are bound to issue a summons, and proceed to a hearing; and if they refuse to do so, will be compelled by mandamus; Rex v. Benn, 6 T. R. 195. The summons should be directed to the party against whom the charge is laid; and should in general be signed by the justice himself by whom it is issued; Rex v. Steventon, 2 East, 365. Where a particular form of notice is prescribed by the Act, that must be strictly pursued; Rex v. Croke, Cowp. 30. The intention of the summons being to afford the person accused the means of making his defence, it should contain the substance of the charge, and fix a day and place for his appearance; allowing a sufficient time for the attendance of himself and his witnesses; Rer v. Johnson, 1 Stra. 260. A summons to appear immediately upon the receipt thereof, has been thought insufficient in one case; 2 Burr. 681. In another, an objection made to the summons that it was to appear on the same day, was only removed by the fact of the defendant having actually appeared, and so waived any irregularity in the notice; Rex v. Johnson, 1 Stra. 261. It is

appear at a place certain: otherwise the party commits no default by not appearing; and the magistrate cannot proceed in the defendant's absence upon a summons defective in these particulars, without making himself liable to an information; Rex v. Simpson, 1 Stra. 46. It has been made a question whether the service of the summons must be personal. It seems in general necessary that it should be so, unless where personal service is expressly dispensed with by statute. Parker, C. J., was of that opinion; 10 Mod. 345. And the provisions specially introduced into many Acts of Parliaments, to make a service at the dwelling-house sufficient, seem to justify the inference, that the law in other cases is understood to require a service upon the person. Where personal service is not necessary, leaving a copy at the house is sufficient; Rer v. Chandler, 14 East, 268; and the delivery may be to a person on the premises, apparently residing there as a servant; Id. ibid. These rules apply, however, only to those cases where the defendant does not in fact appear; for if he actually appears and pleads, there is no longer any question upon the sufficiency or regularity of the summons; 1 Stra. 261. Paley on Convictions, 2d ed. by Dowling, 21, 23.

(3) The magistrate has, in general, no authority to compel the attendance of witnesses for the purpose of a summary trial; unless where it is specially given by act of parliament. This, in many cases, has been done; and in

panied with a penalty on refusal to attend for the purpose of being examined. It seems agreed that the examination of witnesses must be upon oath, and that no legal conviction can be founded upon any testimony not so taken. There is a difference in the manner in which the Acts are worded, in regard to the mode of examination to be pursued; for, while some Acts expressly mention the testimony of witnesses on oath, others, in general terms, authorize the magistrate to hear and determine, or to convict or give judgment on the examination of witnesses, without noticing the oath. But such general expressions seem, in legal construction, necessarily to refer to the only kind of testimony known to the law, namely, that upon oath. "For," says Dalton, “in all cases, wheresoever any man is authorized to examine witnesses, such examination shall be taken and construed to be as the law will, i.e. upon oath." Dalt. c. 6, § 6; and see id. c. 115, c. 164; Plowd. 12, u.; Lamb, 517; ex parte Aldridge, 4 D. & R. 83; 2 M. C. 120; Rex v. Glossopp, 4 B. & A. 616; Paley, 33, 34. Although no mode of examination be pointed out by the statutes giving jurisdiction over the offence; yet, as justice requires that the accused should be confronted with the witnesses against him, and have an opportunity of cross-examination, it is required by law, in the summary mode of trial now under consideration, that the evidence and depositions should be taken in the presence of the defendant, where he appears. For though the legislature, by a summary mode of inquiry, intended to substitute a more expeditious process for the common law method of trial, it could not design to dispense with the rules of justice, as far as they are compatible with the method adopted. Indeed, it may be useful upon this occasion to notice the general

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maxim which has been laid down as a guide to the conduct of magistrates in regulating all their summary proceedings, namely, that Acts of Parliament, in what they are silent, are best expounded according to the use and reason of the common law;" Rer v. Simpson, 1 Stra. 45. Unless, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given; IT. R. 320. And the witnesses must be sworn and examined in his presence: Rex v. Vipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence, and is read over to him afterwards, the witness must at the same time, unless the defendant upon hearing the evidence should confess the fact, Rex v. Hall, 1 T. R. 320, be resworn in his presence, and not merely called upon to assert the truth of his former testimony; Rex v. Crowther, 1 T. R. 125. For the intent of the rule is, that the witness should be subjected to the examination of the defendant upon his oath ; 2 Burr. 1163; and see Rea v. Kiddy, 4 D. & R. 734; 2 M, C. 364. This rule is confirmed, rather than contradicted, by those cases wherein convictions have been sustained without expressly alleging the evidence to have been taken in the presence of the defendant; Rex v. Baker, 2 Stra. 1240; Rex v. Aiken, 3 Burr. 1786; Rex v. Kempson, Cowp. 241. For it will be found that in all those cases the judg ment proceeded upon a presumption collected from the whole conviction, that the defendant was in fact present, and did hear the evidence given, which was always admitted to be necessary to the regularity of the magistrate's proceedings; Rery, Vipout, 2 Burr, 1163; and see Rex y. Lorat, 7 T. R. 152; Rex v. Thompson, 2 T. R. 18; Rex v. Swallow, 3 T. R. 284; Paley, 39, 40,

(4) In all cases in which magistrates are authorized, upon application, to issue a distress warrant for non-payment of any rate, although they have no power to relieve, it is their duty first to call the party before them by summons, unless by Act of Parliament it is specially directed that the warrant shall be issued immediately; Rex v. Justices of Borough of Stafford, 5 Nev. & Man. 94. The power of proceeding by these compulsory methods is derived entirely from special statutory provisions, and is not any necessary consequence of a conviction. If a statute only confers a power to convict, without making provision for the recovery of the penalty, there seems to be no compulsory means of carrying such a law into effect.

It

is usual, therefore, for the statutes inflicting penalties to contain an express authority for this purpose. It is some

times directed to be exercised immediately, upon non-payment of the penalty; in other cases, only upon failure of payment after a certain number of days. When the justice is empowered to issue his warrant, on refusal or neglect of payment for a certain number of days, it seems to be understood, that no demand is necessary to enable him to do so after the expiration of that time; Wootton v. Harvey, 6 East, 75. Those statutes which give a power of appeal to the party convicted, frequently also provide, that, upon the appeal, and security given for prosecuting it, the distress shall be stayed till the determination of the appeal. In such cases, after the appeal is decided, if the time limited for making the distress be expired, the magistrate may, it seems, issue his warrant immediately without any fresh demand; for the time runs from the order; Id. Ibid. But if the warrant has been issued before, and suspended by the appeal, it is better, after the decision of the appeal, to apply

to the magistrate and lay the facts before him, before proceeding to the execution of the warrant; id. 79. Per Lawrence, J. The warrant should be under the hand and seal of the justice, and directed to the constable, &c., of the parish, &c., in which the goods to be distrained upon are found. Where the justice has reasonable ground for doubting his jurisdiction, the court will not compel him to issue a warrant of distress, which may subject him to an action; Rex v. Bucks, (Justices,) 2 D. & R. 687; 1 M. C. 366; 1 B. & C. 485. The warrant shortly recites the conviction, and commands the officer to levy the sum specified, directing to whom it is to be paid. Care must be taken that the commitment is warranted by the conviction, for a legal conviction will not help an informal commitment; Rogers v. Jones, 5 D. & R. 268; 2 M. C. 211; 3 B. & C. 159. See Bane v. Metheun, 3 M. C. 521; 9 J. B. Moore, 161; Wichs v. Clutterbuck, 3 M. C. 536; 9 J. B. Moore; Rex v. Payne, 4 D. & R. 72; 2 M. C. 169; Rex v. Helps, 3 M. & S. 331. In general the warrant should appoint a time and place for returning it. Rex v. Wyatt, Fort. 127; 2 Ld. Raym. 1189; 1 Salk 380. The constable is the proper officer to execute the warrant ; Carth. 78. And he is indictable for refusal or wilful neglect; Rex v. Wyatt, Fort. 127. And see 2 Ld. Raym. 9; 2 Rol. Rep. 78; 2 Hawk. P. C. c. 16, $5. If the warrant be directed to all constables generally, no one in particular can execute it out of his own district; but if it be directed to a particular constable by name, he may execute it any where within the jurisdiction of the magistrate; Rex v. Weir, 2 D. & R. 444; 1 M. C. 319; 1 B. &' C. 288. And see Carth. 508; I Salk. 176; 2 Hawk. P. C. c. 13, § 20; 1 Burn, Distress; Gimbert v. Coyney,