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conviction under this act, adjudging only that the defendant had forfeited 51., “ to be disposed of as the law directs,” was deemed irregular: for, in that case, the distribution of the penalty was held to be a necessary part of the judgment, which ought to appear on the record, not merely in the general terms of the act, but specifying the exact sum. R. v. Dimpsey, 2 T. R. 96. Paley, 169. (a)

Another case arose on the statute 42 G. 3. c. 119. § 5., prohibiting unlawful lotteries, which act directs the penalty to be applied, one-third to the king, one-third to the informer, and the other third to the person apprehending or securing the offender. The conviction in question stated the offender to have been brought before the convicting magistrates by W. C. and J. P., two of the beadles of the parish. The adjudication, after declaring the defendant to be convicted of the offence, proceeded in these terms, viz. “ For which said offence I do adjudge her to forfeit and pay the sum of 100l., to be applied and distributed, when paid, as the law doth direct.” This case was very fully considered, upon the objection, that the person entitled to the last third of the penalty, for apprehending and securing the offender, should have been distinctly named and pointed out by the magistrate. It was contended, in answer to the objection, that the persons by whom the offender was stated to have been “ brought before the magistrates," sufficiently answered that description, or, if not, that the unappropriated portion remained in the crown. But the court decided, that the objection was well founded; that the application of the penalty should have appeared distinctly upon the face of the conviction; and that it was bad, for the uncertainty in the objects of the distribution. R. v. Seale, 8 East, 568. Paley, Conv. 170.

By stat. 12 G. 3. c. 61. $ 18., two justices may adjudge a forfei. Adjudication of ture of gunpowder, conveyed in larger quantities than those allowed forfeiture of by the act, to the person seizing the same. But in order that such thing seized to

, adjudication may be good, the conviction must shew that the per- ing the same. son to whom the forfeiture is adjudged is the person

who seized; and its being stated in the adjudicating part, that the gunpowder is forfeited “ to the use of J. C., the person who seized the same," will not supply the omission. R. v. Smith, 5 M. & S. 133.

An adjudication of part of the penalty to the poor of a town. Adjudication ship, where the statute appropriates it to the poor of the parish, to the poor of is bad. (6) This was so decided in the case of a conviction on the the parish. Mutiny Act, 35 G.3. c. 6. $ 68., the 85th section of which orders, that the penalty, after making satisfaction as therein ordered, shall be paid to the overseers of the parish where the offence is committed. The act also prescribes a short form of conviction, concluding thus : “And I do hereby declare and adjudge, that the

(a) Another case occurred (R. v. Priest, 6 T. R. 538.) on the Mutiny Act, 55 G. 3. c. 6., which contained a similar provision, as to making satisfaction to the soldier aggrieved, and prescribed a short form of conviction, concluding, “ And I do hereby declare and adj that the said A. B. hath forfeited the sum of l. for his offence aforesaid, to be distributed as the law directs, according to the statute in such case made and provided." The court gave judgment on another ground (see post, p. 718.); but Lord Kenyon, with reference to the point in question, said, * Where a form of conviction is prescribed by a statute, it is most safe, in general, to adopt the very words used : but, taking the whole of this act of parliament together, the legislature could not intend that there should be a literal adherence to the form prescribed.”

(6) But see R. v. Wyatt, 2 Ld. Raym. 1478.

said A. B. hath forfeitedthe sum ofl. for his offence aforesaid, to be distributed as the law directs, according to the statute in that case made and provided.”—In the case in question, the offence was stated “at Ullesthorpe ;” and the judgment was in these terms, viz. “ I do hereby adjudge and direct, that out of the said sum of 40s. so forfeited, 158. be applied in making satisfaction to, &c.; and that 25s., the remainder, be paid to the overseers of the cownship of Ullesthorpe aforesaid, for the use of the poor of the said township, according to the statute,” &c. It was alleged and admitted to be the fact, but it did not appear upon the face of the conviction, that Ullesthorpe was a township supporting its own poor. But the court, without admitting that, if the fact had so appeared, it would have supported the conviction, were clearly of opinion that, as it stood, it could not be supported. R. v. Priest, 6 T. R. 538.

In a conviction of defendant for causing to be acted at a certain place called the Coburg Theatre, in the parish of St. Mary, Lambeth, for gain and reward, a certain entertainment of the stage called Richard the Third;" the evidence stated, that the Coburg Theatre was in the parish of Lambeth, and the adjudication of the penalty was to the poor of the parish of St. Mary, Lam. beth: and it was held, that this was no variance, it not appearing that there were two distinct parishes so named. R. v. Glossop, 4 B. & A. 616.

By stat. 18 G. 3. c.19., where any complaint shall be made before any justice or justices of the peace, and any warrant or summons shall issue in consequence of such complaint, then it shall be lawful for such justice or justices, who shall have heard and determined the matter of the said complaint, to award such costs to be paid by either of the parties, and in manner and form as to him or them shall seem fit, to the party injured. (a) Given under my hand (or, our hands, &c.) and seal, the- day of

in the year of our Lord - -] A conviction should be under the hand and seal of the magistrate ; and a justice ought to give the defendant a copy of the conviction, if he demands it: it is a record (b), and he is entitled to it. R. v. Midlam, 3 Burr. 1720.

An impossible or an incongruous date, if the conviction be complete without it, may be rejected as surplusage, and will not vitiate. As, if the justice in the concluding part states that he has, in witness of conviction, put his hand and seal on a day prior to that on which the offender was convicted, and the offence committed. R. v. Picton, 2 East, 196.

But the date of the conviction is material, when the statute, on which it is founded, requires that the conviction shall take place within a prescribed period, after the offence committed. In such a case, the date must be within that period, when compared with the date alleged for the offence. Paley, Conv. 174. R. v. Bellamy, 1 B. & C. 500.

18 G. 3. c. 19. Awarding costs.

Sealing

Date.

(a) For the manner of levying such costs, and other regulations made by 18 G. 3. c. 19. see post, tit. Costs; where also the Forms, given by the statute, of awarding Costs of the warrant of Distress, and Commitment upon nonpayment, will be found.

(6) A record is a memorial or remembrance in rolls of parchment. 1 Inst. 260. -In general, I think, a conviction ought to be upon parchment, but if on paper it is good in law, unless the statute directs otherwise. - (Note to former edition.)

(6) Where a Form is given by the Statute on which the

Conviction proceeds. Almost every modern penal statute authorizing summary convictions (including Peel's Acts, Lord Lansdowne's Act, and the Game Act,) provides a form of conviction for offences against the act, and enacts that the convicting justice may cause the conviction to be drawn up in the given form, or in any other form of words to the same effect, as the case may require.

But it must be observed, that these forms almost invariably Accuracy releave a blank for the specification of the offence. And in filling quired in deup such blank, the same accuracy and certainty is required, in scribing the describing the offence, as in the information, in cases where no particular form of conviction is provided. See R. v. Nield, 6 East, 419, R. v. Hazell, 13 East, 139. Ex parte Hawkins, 2 B. & C. 31. (stated antè, p. 701, 702.)

Where the act (as is usually the case) merely declares that the Stating more justice may draw up the conviction in the following form, or in than the given any other form of words to the same effect, there exemplified, form requires

will not vitiate. then, provided the conviction contains every thing required by the form given, it will not be vitiated by unnecessarily stating more than is required. Thus, on stat. 31 G. 3. c. 21. which, by $ 4., directs the conviction to be drawn up according to a form there specified, or to the effect thereof, the magistrates having, besides all the requisite particulars, unnecessarily inserted what was not required by the specific form, viz. the information, summons, appearance, and names of the witnesses, but not the evidence ; it was objected, that the conviction was neither good at common law, for want of setting out the evidence, nor by the statute, as it did not strictly follow the form there directed; but the objection was over-ruled, because it was held, that, as the conviction contained all that the form required, it was not invalidated by stating what was unnecessary. R. v. Jefferies, 4 T.R.768. Paley, Conv. 48. (a)

It is not unusual that the statutes which provide a particular What defects form, proceed to enact that no conviction under it shall be set are cured by a aside in consequence of “any defect of form." Yet, notwith- provision, that standing these or the like words, every fact material for the proper shall not be set description of the offence must be stated; for the omission will not aside for "matbe cured by reference to such a clause. Thus, where a convic- ters of form." tion omits to state that the defendant knowingly did the act charged, {See also R. v. where the scienter is essential to constitute the offence, such a

Walsh, antè,

p. 702, 703.) defect is not aided by a proviso in the statute, that “no conviction for any offence in the act shall be set aside for want of form, or through the mistake of any fact, circumstance, or other matter, provided the material facts alleged were proved.” R. v. Jukes, 8 T. R. 536. (antè, p. 706.)

So a conviction under 48 G. 3. c. 143., upon an information for selling ale or beer without a licence, was held bad for uncertainty, notwithstanding the evidence applied to selling ale alone, and the 3d sect. of the act declared, that in all cases where it

(a) But if any particular form be prescribed as indispensably necessary, that must be strictly complied with. 4 T. R. 769. (See also Davison v. Gill, 1 East, 79. Goss v. Jackson, 3 Esp. 198.)

appeared by the conviction that the defendant had appeared and pleaded, and the merits hail been tried, no advantage should be taken of any defect of form. For the court considered that this was not a mere formal objection, but a matter of substance. R. v. North, 6 D. & R. 143. (See the judgment of Bayley J., antè, p. 703.)

II. Df the proceedings subsequent to Convictions ;

and herewith, of enforcing and resisting them.
(1.) Of drawing up and returning the conviction, and giving a

copy to the defendant.
(2.) Of enforcing convictions.
(3.) Of resisting convictions.

II. (1.) De drawing up and returning the conviction, and giving a

Copy to the Defendant. Conviction to In all cases a justice of the peace ought to return a conviction be returned to by him to the sessions, whether the party appeal or not, or the session, whether an appeal is or is not given, that the crown may not be

deprived of its share of forfeitures. R. v. Eaton, 2 T. R. 285.

This is sometimes further enforced by the express direction of the Acts themselves which impose the penalties: as in the Game Act, 1 & 2 W. 4. c. 32. $ 43., and Peel's Acts, 7 & 8 G. 4. c. 29. 74., and 7 & 8 G. 4. c. 30. $ 40.

If the justice, after receiving due notice of appeal, neglects to return the conviction, whereby the party is prevented from prosecuting his appeal, the justice is liable, in an action on the case, for the special damage. Proser v. Hyde, 1 T. R. 414. Paley,

Conv. 195. May be re- R.v.Barker, 1 East, 185. On a motion for a criminal informturned in a ation against a magistrate, for returning to a writ of certiorari, a more formal

conviction of a party in another and more formal shape than that shape than when first

in which it was first drawn up, and of which a copy had been dedrawn up.

livered to the party convicted by the magistrate's clerk, Ld. Kenyon C. J. said, " If the magistrate has done no more than return the conviction in a more formal shape, instead of sending it up in the informal manner in which it was first drawn, and supposing that the facts as they really happened will warrant him in the return he has now made, I am of opinion, that it was not only legal but laudable in him to do as he has done ; and he would have done wrong if he had acted otherwise. It is a matter of constant experience for magistrates to take minutes of their proceedings without attending to the precise form of them at the time when they pronounce their judgment, to serve as memorandums for

them to draw up a more formal statement of them afterwards, to A conviction be returned to the sessions; and it is by no means unusual to draw may be drawn

up the conviction in point of form after the penalty has been up after the

levied under the judgment, nor is there any legal objection to penalty bas been levied. this method, provided the facts will warrant them in stating what

they do. It is no answer to say, that a party convicted may be thereby induced to incur an unnecessary expense in suing out a certiorari

, to get rid of an informal conviction; for a mere informality in the manner of drawing up a conviction ought not to be the inducement for removing it into this court, but some substantial defect in the justice and legality of the proceeding itself before the magistrate.

R. v. Allen, 15 East, 332. The appellant had received from the If by mistake, convicting magistrates a copy of his conviction, which was written and without on the back of the information, and contained an erroneous state. any intention to

mislead, a copy ment (mistaking between the informer and the witness), the same

be delivered to justices having returned to the sessions to be filed of record a the party

, misregular conviction of the same date, and stating correctly the taking the name actual circumstances, the sessions quashed the conviction, as being of the informer, at variance with the minutes of that delivered to the appellant, and a correct

one be returned without entering into the merits of the case; but the court of K. B.

to the sessions, quashed the order of sessions generally, thereby setting up the that court can original conviction, considering that the variance arose from the only take notice mere mistake and irregularity of the justices' clerk, and that the of the latter. appellant had not really been surprised by it, but had waived his appeal on the merits.

But a different rule prevails as to orders of justices: for an order But an order cannot, like a conviction, be returned to the sessions in an amended cannot be re

turned in an form. Thus in R. v.Justices of Cheshire, 5 B. & Adol. 439., two

amended form. justices made an order under 11 G. 2. c. 19. § 4. (inflicting penalties for fraudulently removing goods to avoid a distress. See tit. Distress). An appeal was duly entered against it. The original order was defective in point of form; but the two justices caused a new and different order, (though not varying as to the facts or nature of the offence) to be filed with the clerk of the peace. When the appeal came on to be heard, the appellant handed in the original order, and proved his notice of appeal; but the respondents contended, that the second order was the only one of which the court could take notice: and the sessions so held. The new order was then confirmed without opposition. But the court of K. B. were of opinion that the party affected had a right to appeal against the order in the form in which it was originally made ; and granted a mandamus to the sessions to hear the appeal against it accordingly.

So, with respect to a commitment, the warrant cannot be made Nor can a comout at any time like a conviction, but must be drawn up in writing mitment be before the party committed is sent to prison. And his detention, the party is sent without a regular commitment in writing, is not justifiable for a

to prison. longer time than is necessarily required for making it out. Hutchinson v. Lowndes, 4 B. & Adol. 118.

It has already been stated, that the justice ought to give the de- Defendant's fendant a copy of the conviction if he demands it. R. v. Midlam, right to a copy

of the convic3 Burr. 1720. antè, p. 716. And where a magistrate refused to grant a copy, which was required by the defendant for the purposes of his defence against an action for the same offence as that of which he had been convicted, the justice was compelled to pay his own costs of returning the conviction into the K. B., on a certiorari, which the defendant was under the necessity of suing out, as the only means of procuring a copy. R. v. Midlam, 3 Burr. 1721.

tion.

VOL. I.

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