indictment for not repairing a highway may be removed from sessions by certiorari, see post.

SECTION II.

PRECEDENTS OF ORDERS OF JUSTICES IN PETTY SESSIONS
IN PARTICULAR CASES.

Order by Two Justices for the Discharge of an Apprentice, &c. on
Complaint of the Master, 20 G. II. c. 19 (u).

}

County of Whereas complaint hath been made before us, two of to wit. her majesty's justices of the peace in and for the said county of , upon the oath of W. M. of in the said county, tailor, that A. R. apprentice of the said W. M. hath, in his service as an apprentice, committed divers misdemeanours against him, the said W. M. his master, and in particular [as the case is]. And whereas we, the said justices, after having duly examined into the proofs and truth of the said complaint, and heard the allegations of both parties, have, upon due consideration thereof, determined and adjudged that the said A. R. is guilty of the misdemeanours so charged against him as aforesaid; we do therefore hereby make an order for the discharge of the said A. R., and do hereby discharge the said A. R., from his apprenticeship to the said W. M., any thing in any indenture or indentures of apprenticeship between them, or otherwise, to the contrary notwithstanding. Given under our hands and seals, &c.

Order for Discharge on Complaint of Parish Apprentice, by 32 G. III. c. 57 (x).

[As above, mutatis mutandis, to the conclusion. Then add:] And we do hereby further order, that the said W. M. shall, upon due notice hereof, forthwith deliver up to the said A. R. his said late apprentice, his clothes and wearing apparel, and that he shall, moreover, immediately pay to the churchwardens and overseers of the poor of the parish of in the said county, to which parish the said A. R. belongs, some, or one of them, the sum of £- [see 4 G. IV. c. 29; 32 G. III. c. 57, as to the amount] to be applied by them, some, or one of them, for the again binding

(u) Though this act applies to parish as well as other apprentices, it only embraces those on whose binding out no more than 51. was paid, 32 G. III. c. 57. That sum was extended to 107. by 33 G. III. c. 55, and to 257. by 4 G. IV. c. 29, s. 1. The latter act also empowered justices to order, on the discharge of the apprentice, the refunding of all or a part of the premium. And now by 5 Vict. sess. 2, c. 7, these acts are extended to apprentices where no premium was paid.

(a) An appeal to the next session is allowed by the 12th section of this act, against the order of discharge made under 20 G. II. c. 19, as also against the order of discharge and payment of money made under 32 G. III. c. 57, s. 3, on notice thereof being given within seven days of the service of the order. If no such notice be given, nor the order obeyed, a warrant of distress is to issue; and if notice of appeal be given, but not supported, 40s. are to be added to the expenses of the distress.

out such apprentice, or otherwise, for his benefit, as to us shall seem meet, under our order. Given under our hands and seals, &c.

Order by Two Justices for Continuance of a Parish Apprentice with the Widow (or other Representative) of Master (32 G. III. c. 57, s. 2).

County of to wit.

}

Whereas D. W. within named, late of the parish of the said county, died on the

day of

in

being within three calendar months now last past; we, two of her majesty's justices of the peace for the county aforesaid, whose names are hereunto subscribed, on the application, and at the request of A. W. widow [or as the case may be,] of the said D. W. living with, and being part of the family of the said D. W. at the time of his death, do hereby order and direct, that A. B. the apprentice within named, who was in the service and actual employment of the said D.W. at the time of his death, shall serve the said A. W. as such apprentice for the residue of the term of such apprenticeship within mentioned, according to the provisions of an act passed in the thirty-second year of the reign of king George the Third, intituled, an act for the further regulation of parish apprentices (y). Witness our hands this

day of

I, the above named A. W. do hereby declare, that the above order is made at my request, and that I do accept the said A. B. as my apprentice, according to the terms and covenants contained in the said indenture, and according to the provisions of the said act. Witness my hand the day and year above written.

Order of Two Justices under 11 G. II. c. 19, ss. 3, 4, upon Party assisting a Tenant to Remove his Goods fraudulently, to avoid a Distress.]-A form of this kind appeared in former editions of this work. It appears to have been selected for insertion by the original compiler, from the multitude of other orders of justices, on account of its general usefulness, and the doubt supposed to exist whether the evidence must be set out or not (z). And as the proper form

(y) This order provides for disposing of the parish apprentice on the emergency of the master's dying. The 56 G. III. c. 119, among many other provisions, extends to justices power, by a similar order, to assign over, or to discharge, parish apprentices, on the removal of their master's residences respectively into another country, or more than forty miles from the place wherein they resided at the time of the binding; with power to order a return of premium, or any part thereof. statute proceeds to inflict penalties for discharging such apprentices, under the circumstances provided for, by any other means than those pointed out, and gives a summary conviction for disobedience,

The

with power of appeal within three months, giving twenty-one days' notice in writing, and if against any conviction entering into recognizance to prosecute. Appeals to be to the county sessions, who shall give costs at their discretion.

(z) R. v. Morgan, Cald. Ca. 158; 1 Burr. 399, was cited in the first three editions, as an authority that this is a conviction, and that accordingly the evidence on which it was made must be so set out; but R. v. Bissex, 1 Burn's J. by Chitty, 28th edit. 1129, note (a); S. C. Sayer's R. 304, cited and relied on in R. v. Killelt, 4 Burr. 2065; as well as in R. v. Middlehurst (Justices), Burr. 3—9; R. v. Lloyd, Stra. 999; and R. v. Cheshire (Justices), 5 B. & Adol. 439, show that

of this order has been much canvassed in late cases, a precedent is subjoined, which it is hoped is correct, having been framed with a view to meet the objections suggested (a). It should be recollected that this adjudication of justices being an order, and not a conviction, cannot be returned to the sessions and filed there in an amended form (b).

Whereas T. W. of in the county of gentleman, agent (c) for and on behalf of Sir T. S. M. S. Bart. did on, &c. at, &c. duly make and exhibit before me, the Rev. R. M. T. clerk, being one of her majesty's justices, &c. residing near the place whence the goods and chattels hereinafter mentioned were removed, and not being interested in the premises hereinafter mentioned whence the same were removed, his complaint and information in writing (d) against R. O. of, &c. labourer, thereby setting forth, &c. [stating the charge laid in the information, viz. that one W. O. was indebted to Sir T. S. M. S. for rent of certain premises occupied by the said W. O. as tenant to the said Sir T. S. M. S.] (e), and that the said rent being in arrear, R. O. did wilfully and knowingly (ƒ) assist [see 11 G. II. c. 19, s. 3,] him, W. O. in fraudulently removing from the said premises six cows (g), the goods and chattels of the said W. O. being under the value of 50%. and of the value, &c. with intent to prevent their being distrained for the said rent. And thereupon the said R. O. being duly summoned to appear before two of her majesty's justices of the peace in and for the county of Chester, on, &c. at, &c. to answer the said complaint and information; and the said R. O. having appeared accordingly before us, the said R. W. F. and the Rev. U. C. clerk, being two of her majesty's justices,

such a statement is unnecessary in this as an order, though essential in a conviction; but quære, 12 Ad. & E. 81.

But the facts raising the jurisdiction of the justices must appear expressly on the face of the order; and quoad hoc there is no distinction between a conviction and an order, Day v. King and others, 5 Ad. & E. 359; St. Peter's, Gloucester, v. Bristol, 2 Sess. Cas. 96, pl. 73, 2nd ed.

(a) See forms in Paley on Conv. 3rd ed. 543, R. v. Cheshire (Justices), 5 B. & Adol. 440, n.; R. v. Davis, id. 551; ex parte Morgan, Q. B. 16th June, 1840, cor. Williams, J.; and Reg. v. Radnorshire (Justices), 9 D. P. C. 90. Orders must be drawn up before acted on, but a conviction may be drawn up at any time after, S. C. arguendo.

(b) R. v. Cheshire (Justices), 5 B. & Adol. 439.

(c) It seems that the order should state the complainant to be the landlord, or his bailiff, servant, or agent, R. v. Davis and another, 5 B. & Adol.

(d) Essential, see ex parte Fuller, Trin. 1844; 13 L. J. (M. Č.) 141; 2 D. & L. 98. See 11 G. II. c. 19, s. 4.

(e) The order must show on the face of it facts sufficient to establish that the justices had jurisdiction to make it [that is, as between persons stated to be landlord and tenant]. See per Taunton, J., R. v. Davis, 5 B. & Adol. 553, 554. Thus it must show that the party removing the goods was tenant; and that is not sufficiently made out by stating that on complaint duly made, the party was charged with having fraudulently removed his goods from certain premises, to prevent A. B. from distraining them for arrears of rent due to him for the said premises, R. v. Davis, 5 B. & Adol. 551; and see R. v. Rabbitts, 6 D. & R. 341.

(f) Essential, Reg. v. Radnorshire (Justices), 9 D. P. C. 90.

(g) It is not essential to state the particular goods and chattels, as here done, R. v. Rabbitts, 6 D. & R. 341; but their value must be laid, S. C.

&c. Now we, the said justices, residing, &c. and not being either of us interested, &c. and having heard and examined upon oath in the presence of the said R. O. the witnesses produced by the said T. W. (we, the said justices, having then and there full power and authority to administer the said oaths to the said witnesses,) touching the said complaint and information, and having heard what was alleged by the said R. O. in his defence, and it being proved before us on oath, that after the said rent was so in arrear as aforesaid, the said W. O. did, on, &c. fraudulently remove and (h) convey away from the said premises so occupied as aforesaid, six cows, the goods and chattels of the said W. O. being under the value of 50%. and of the value, &c. with intent to prevent their being distrained for the said rent, and that the said R. O. did wilfully and knowingly assist him the said W. O. in so fraudulently removing the same cows from the said premises; and we the said justices having also inquired in better manner upon oath the value of the said cows, and upon due consideration had in the premises, do hereby adjudge that the complaint of the said T. W. is true, and that the said R. O. is guilty of the offence with which he is charged, in and by the said complaint and information, according to the form of the statute in that case made and provided. And we the said justices do adjudge and order the said R. O. to pay to the said Sir T. S. M. S. Bart. the sum of 721. 58. being double the value of the said cows, goods, and chattels, in the said complaint mentioned, on or before the 18th day of February now next, &c. In witness whereof, we the said justices to this order have put our hands and seals, at, &c. on, &c. (i).

In the third edition a form of an order of justices for admission to a friendly society was here inserted. The acts on which it was founded being all now repealed, and replaced by a later act, which substitutes new forms of proceeding, it is judged most advisable in this place merely to refer to that act (k), and no sufficient reason appears for introducing the new forms at length.

SECTION III.

OF CONVICTIONS BY JUSTICES IN GENERAL, AND APPEALS

AGAINST THEM.

A SUMMARY Conviction is a record of the proceedings had under the authority of a penal statute, before some justice or commissioner duly

(h) See next note.

To

(i) This order may allege an alternative charge, see ante, p. 616. bring the case within the statute, the removal must have taken place after the rent became due, Northfield v. Nightingale, 1 Cromp. & Mee. 230, n.; Rand v. Vaughan, Bing. N. C. 767; 1 Scott, 670; Watson v. Main, 3 Esp. 15; 2

Saund. 284, n. (2). This was once doubted, Furneaux v. Fotherby, 4 Campb. 136. The removal need not be clandestine as well as fraudulent, Opperman v. Smith. 4 D. & R. 33.

(k) 10 G. IV. c. 56; 2 Burn's Justice, 28th ed. tit. Friendly Society. See Brook v. Nokes, 8 B. & Cr. 537; 2 Man. & Ry. 570.

authorized to receive information, and proceed to judgment (2). But the term "conviction" is verbum equivocum (m); that is, in common parlance it is taken to mean the verdict at the time of trial; though in strict legal sense it is used to denote the judgment of the court.

The following is a sketch of the principal features of the law respecting convictions. The framing them requires great attention, for they are construed even more strictly than indictments, because the jurisdiction exercised is summary (n): accordingly no one subject relating to a magistrate's duty requires more care.

The authority to convict, being special, and in restraint of the common law, must appear on the face of the proceedings, to have been strictly pursued according to the letter of the act by which it was created, so as to show the most material point, viz. that the justice has jurisdiction in the case (o); for those who act under a jurisdiction given by act of parliament, must show that jurisdiction; since in a matter of jurisdiction the court will intend nothing (p). It must also appear in like manner, that rules, similar to those adopted by the common law in criminal prosecutions, and founded in natural justice, have been observed; unless the statute (as is the case in some instances) should expressly dispense with the necessity of so stating them. Indeed, it is reasonable that summary convictions should be construed with strictness; because, if regular on the face of them, and unappealed against by the defendant where remedy by appeal is given, they are taken to be true in fact against him, and conclude him from ever bringing an action for maliciously prosecuting them (q), unless when questioned by him on appeal. "Convictions (said Lord Holt) ought to be certain, and not taken upon collection" (r); for they are in the nature of a verdict and judgment (s). It is a rule as to convictions being summary proceedings before magistrates on particular acts of parliament, that after they have taken place nothing can be intended so as to get rid of any defect in point of form, and that every thing necessary to support them must appear on the face of the proceedings, and must be established by regular proof, or by the party's

(1) Some modern statutes give powers in some respects similar to those of justices, to commissioners of the public boards of revenue, and to the poor-law commissioners.

(m) Per Tindal, C. J., 13 L. J. (M. C.) 126; Burgess v. Boetefour and Brown.

(n) Per Ashurst, J., R. v. Green, Cald. 391, 396.

(0) Boscawen, 10, cited Paley on Con

victions, 3rd ed. 67.

(p) R. v. Holbeck in Leeds, Burr. S. C. 198; R. v. Stepney, id. 23, other cases, 1 Burn's J., 29th ed. 960, et seq.; 7 B. & C. 785.

(q) Mellor v. Baddeley, 4 Tyrw. R. 962; S. C. 2 C. & M. 675; 6 C. & P. 374. (r) Ld. Raym. 510. See cases collected, Burn's J. 29th ed. 967. (s) R. v. Harris, 7 T. R. 238.