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Kilkenny, for liberty to file a criminal information fo a conspiracy against the defendants, who were also attorneys practising in the same county, Brewster, S.G. on behalf of the defendants, informed the Court that Mr. Maher, who had presided as chairman at the meeting at which the resolutions objected to by the prosecutor (see ante, p. 132) were passed, desired to express his regret at having put his name to them, as they were calculated to give offence to the prosecutor, who was a gentleman with whom Mr. Maher was acquainted in private life, and whose character ranked deservedly high for honour and high respectability. Mr. Maher would have to incur the penalty of paying the costs which had been incurred.

Napier, Q.C. for the prosecutor, was quite satisfied with the explanation which had been offered. He wished, however, to say that a statement which had been made by him when applying for a conditional order in this case, had been at the time questioned by a third party at that time present in court, but the truth of that denial was no longer put for ward, and the statement put forward had not been authorised by the defendant.

By the COURT.-Let the conditional order be discharged, on payment of costs.

January 24 and 26, 1846. (Before BURTON and CRAMPTON, Justices.) REG, v. CHARLES GAVAN DUFFY, Esq. Practice--Dilatory plea in criminal cases-Verification of must be positive-Stat. 6 Anne, c. 10. To an indictment for a libel, the defendant pleaded in abatement, and annexed to his plea an affidavit stating it to be true in substance and effect, "as he verily believed.”

The Court on motion set aside the plea for want of a verification, holding that the stat. 6 Anne, c. 11, analogous to 4 & 5 Anne, c. 16 (English), applied to dilatory pleas in criminal as well as civil cases; and that an affidavit in support of such a plea must be positive.

On the 14th of January an indictment was found against the traverser, charging him with publishing, in the Nation newspaper, a wicked and seditious libel; to this indictment the traverser put in the following plea :


Charles Gavan Duffy, at the prosecution of the Queen. And now on this day, to wit, in the 19th day of January, in the year of our Lord 1846, comes the said Charles Gavan Duffy, by John Mitchell, his attorney, into the court here of our Lady the Queen, and protesting that he is not guilty of the supposed offences in the said supposed indictment specified, or any of them, or any part thereof; for plea in abatement nevertheless saith, that he ought not to be compelled to answer the said supposed indictment, and that the same ought to be quashed, because he says, that the said supposed indictment was not publicly and in open court, by the jurors aforesaid, or in their presence, or in the presence of twelve of them, or of a number of them, sufficient according to law in that behalf, presented to the said court of our said Lady the Queen, as a true bill; but on the contrary thereof the same was heretofore, to wit, on the 14th day of January, in the year of our Lord last aforesaid, presented in open court to the said Court, as a true bill, by one of the jurors aforesaid only, to wit, by John Croker, in the presence of a less number than eleven of the jurors aforesaid, to wit, in the presence of five only of the jurors aforesaid, to wit, at Dublin, in the county of the city of Dublin. And the said Charles Gavan Duffy further says, that the jurors aforesaid were not, nor were any of them severally or at all called over by his or their name or names in open court in the said court of our said Lady the Queen, by the proper officer in that behalf, or by any other person whatever, or at all, at or immediately before the time when the said supposed indictment was so presented as aforesaid to the said Court by the jurors aforesaid, to wit, at Dublin, in the county of the city of Dublin aforesaid, to wit, on the day and year aforesaid; and this he (the said Charles Gavan Duffy) is ready to verify. Wherefore he prays judg. ment of the said indictment, and that the same may be quashed, and so forth.

Annexed to the plea was an affidavit made by the traverser, stating the plea to be "true in substance and effect, as deponent verily believes."

| 17th, for being a plea in abatement, it is of a purely dilatory nature, and does not go to the merits of the case, and therefore is to be viewed with strictness. In Reg. v. O'Connell the traverser appeared in person (2 Law T. 193) and not by attorney, and the Court held that the 60 Geo. 3, c. 45, makes no distinction between pleas in bar and in abatement, and that Act only applied where a party appeared in person, and not by attorney; and it has been conceded that before the passing of that statute the four days given to a defendant would have been reckoned both inclusive, and therefore Mr. Duffy, as he appeared by attorney, ought to have pleaded on Saturday; and even if he had appeared and pleaded in person, he ought to have put in his plea before the Court rose on Monday. Secondly. This plea in abatement cannot be sustained, for there is not a sufficient affidavit to verify it; by the 11th sec. of 6 Anne, c. 10 (analogous to 4 & 5 Anne, c. 16, s. 7, Eng.) no dilatory plea should be allowed unless the defendant makes a positive affidavit of its being true in substance and matter of fact. In Gude's Pract. (2nd vol. p. 131), and in Tidd's Pract. 1st vol. 641, (citing Onslow v. Booth, 2 Str. 705) the form of affidavit is given, which is positive as to the truth of the plea; but here the traverser only swears that the plea is true" as he is informed and believes." In R. v. Jones (2 Str. 1161), a plea in abatement having been put in to an information in nature of a quo warranto, it was set aside for want of a title to the affidavit annexed to it; the Court saying the practice of the Crown Office cannot alter the Act of Parliament.

PERRIN, J.-We have judicial knowledge of the fact stated in the plea, that only a few of the grand jury came into court with the bill of indictment. Henn.-Could your lordship trust your recollection so far as to say how many jurors were in the box? PERRIN, J.-I really think I could. Henn.-Although the attention of the Court may have been in a particular case directed to the circumstances, in nine cases out of ten it might not, and the fact of how many jurors come into the box and hand down a bill is not a matter requiring judicial attention. In Rex v. Granger (3 Burr. 1617) Lord Mansfield set the plea aside, and judgment was entered; here the Crown does not ask the Court to give judgment, but merely requires the traverser to plead to the merits, that the case may be investigated. Hughes v. Alvarez (2 Lord Raym. 1409, S. C. Str. 639), and Pearce v. Davy (Say. 293), are strongly in point. In the latter case, Denison, J. says, "It has been said that it is sufficient under the stat. 4 Anne, c. 16, if any matter be shewn to the Court by affidavit to induce them to believe the fact of the plea; but the construction has always been that the affidavit must be positive as to every matter of fact, for that the words 'probable matter' in that statute only extend to a matter of record, or to some other collateral matter, of the truth of which there cannot be a positive affidavit." Robert Holmes (with whom were O'Hagan and Sir Cotman O' Loghlen), contrà.--Notice of this motion should have been received earlier; no affidavit has been made in support of this application: to set aside a plea upon motion in this way is a very strong measure. (See case of Bray v. Haller, 2 Moore, 213.) The object of the Crown is to set aside the plea which they are afraid to demur to, and then serve notice of trial the same day; the Attorney-General might take a conditional order, and then the traverser could shew cause against it.

Henn.-Notice of motion was served on the 22nd instant; it could not be done sooner, as the principal law officers of the Crown were engaged at the Special Commission at Mullingar.

Holmes. We cannot help that; the plea was filed on the 19th instant.

Under these circumstances, the COURT, upon consultation, directed the case to stand till the following Monday.

Monday, Jan. 26.(a)—Henn stated that he did not think it necessary to add any thing to what he had stated on the preceding Saturday.

ment was put in, and a similar objection to the present was taken; but the judges held, that the statute of Anne applied only to civil cases. The Court having cognizance of the fact stated in the plea, there is no necessity for a verifying affidavit.

BURTON, J.-Do you mean that the Court is bound to take notice of the fact of how many grand jurors come into court, when the foreman hands in the bill, so as to know whether there are a sufficient number present or not?

Holmes.-There ought to be twelve jurors present, and the Court are bound to take judicial knowledge of the fact.

BURTON, J.-I can only say, for my own part, that I don't know how many there were in the box at the time; it may be inadvertence on my part, but I am totally unaware of the circumstances.

Holmes. With respect to petit juries, the Court are bound to take cognizance whether they are all in the box or not, when the foreman hands in the verdict to the Court.

BURTON, J.-In that case the judge always takes a note of the fact.

O'Hagan.-Even if a positive affidavit is required, it is not now too late to make it. Onslow v. Smith (2 Bos. & Pull. 386.)

Napier, in reply, cited Foster, C. L. p. 16; 2 Hale's P.C. lib. 2, c. 34, 87; 1 Stark. Cr. Pl. 312; Bacon's Ab. tit. Abatement, letter O; Com. Dig. Abatement, I, 11, plac. 6; 2 Saunders, 210, d, in notes. The Court should not set a precedent of allowing such a plea to remain on the file. They don't pretend at the other side to say that this affidavit complies with the statute. In Pearce v. Davy ( 1 Ld. Ken. 367) it is said by Denison, J., that the affidavit to verify a plea of this kind "must be positive; and so that, if false, the party may be indicted for perjury; and saying he believes won't do, for the plaintiff must rely entirely on what is sworn." Here they contend that the casual notice of a judge is to supply the place of an affidavit. But it is not because one judge may have looked up and seen the bill handed down that that knowledge is to supply the want of an affidavit. Ought the Crown, as is said, to have demurred to this plea, and leave such a precedent on the file? It is our duty to prevent public time being wasted. Davison v. Chilman (1 Bing. N.C. 297), and Odell v. Raymond (2 Fox & S. 217) are in point. In the latter case, the Court said, "It must be made appear to the Court that such pleas are true in substance and matter of fact."

BURTON, J.-The affidavit in this case is not sufficient. A very important question has been raised, whether the statute of 6 Anne, cap. 10, is to be acted on in criminal cases? It is a very important question, and if the Court entertained any doubt upon the subject, we should certainly take time to consider it; but we do not think it necessary to do so, because it strikes us as being now too late to raise this question, which has already received the consideration of Courts in several instances, and we are of opinion that this statute does extend to criminal as well as civil cases. The next question raised is, whether the facts which have been put forward by the defendant amount to a dilatory plea? Certainly the plea is a dilatory plea, and the facts it discloses have no application whatever to the merits of the case. I do not think the plea shews any ground upon which the trial ought to be postponed. According to my judgment, if ever there was a case in which the positive assertion of a fact was necessary, and where that positive assertion was avoided and not made, it is the present case. The only thing, then, to consider is, whether there are sufficient grounds to induce the Court to believe that there has been some fatality which has prevented the traverser from making a fuller affidavit. [His lordship read the affidavit.] Nothing of that kind is suggested in the affidavit. No such thing is suggested as that a sufficient number of jurors did not concur in finding the bill. The defect relied on is only a defect in a matter of form. The traverser states in his plea that a sufficient number of jurors did not come into the box when the bill was presented, and in his affidavit he says he believes the plea to be true in substance and in effect. It is said that he was not present in court when the bill was handed down; that in this case he appeared and pleaded by attorney; but then, there is a person who ought to have been present-his attorney-who should have been present to see that not merely matters of substance but of form also were correctly done. Some person, at all events, might be expected to be present who could speak positively to the fact. On all these grounds, I am of opinion that this plea ought to be set aside and quashed.

Holmes and O'Hagan, for the traverser.-This is an attempt to get rid of a plea upon motion, which, except upon the allegation of a deficiency in the affidavit, could not be attempted. (Rex v. Cooke, 2 B. & C. 618, per Abbott, C.J.) Mr. Duffy was not present when the circumstances alleged in the verifying affidavit took place, so that he could only swear upon his belief to their occurrence. The statute (6 Anne, c. 10) is Henn (with whom was Napier) now moved, that the applicable only to civil, and not to criminal cases (4 plea pleaded in this case, which has been handed to Blackst. C.P. 375); and, besides, I would ask the the officer, should not be received and recorded, the Court, with great respect, was there any judge in same not having been delivered pursuant to the course court who could doubt the truth of the plea? The and practice of the Court; or that the said plea may circumstances stated therein took place in open court, be set aside, the same having been pleaded irregularly and I consider that the Court are bound to take CRAMPTON, J.-My opinion concurs with that of and contrary to the practice of the Court; and inas- judicial notice of those facts, so that there was no my brother Burton. This is the case of a dilatory much as the same has not been verified by a suffi- necessity for an affidavit at all. In Rex v. Grainger, plea, certainly not a case to be favoured by the Court; cient and proper affidavit of the truth of the allega- there was no verifying affidavit whatever, or probable but, on the other hand, the Court will not take any tions therein; nor has such affidavit been annexed cause shewn, to induce the Court to believe the fact right from the defendant, or deprive him of any prithereto, or handed therewith to the officer, as is re-alleged in the plea. At the trial of the Shearses (27 vilege except as far as the statute has not been comquired by law, and by the course and practice of this State T. 267), five judges presided, a plea in abate-plied with. Now the question is, whether the statute Court; and that the said defendant shall plead over of the 6th Anne, c. 20, s. 11, applies to criminal as immediately on the decision of the Court as to the well as civil cases? if the thing were res integra, said plea pleaded. it might be argued that it only applied to civil cases; but the statute has been passed a great number of

First. That this plea should have been filed on the

(a) Perrin, J. was absent during the argument of the case upon the 26th inst.; and the Right Hon. Francis Blackseat on the bench until a subsequent day. burne, the newly-appointed chief justice, did not take his

years: and it has frequently since received the coastraction of Courta. It was considered in Lori Maasfeld's time to apply to cases of misdemeanor. In the case of R. v. Grange 3 Bar. 517, it was so held. Is all cases of the kind, with very few exceptions, and in all the bonics of practice, it has been head to apply to criminal cases, tionen in some cases the Coowa foes not choose to email itself of the provisions of the statate. But there is me case which onerred in the year 1738 Rez 1. Fuertes, 27 St. Tr. 67 which is opposed to the practice of the Court of Queen's Bench both la Edgland and Ireland, face that time; and are we to follow that case ac?


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Monday, March 39.
Wednesday, April 1.
Bilway, & Deposits
Administracion of Criminal Justice.

In Klaliei's Corners, Ireland.


By the 7th nothing in cases of feBut it has

Thursday, April 2,


Burghs, Sentland.


Friday, March 17,

Monday, March 30.


Thursday, April 2.

Mr. Speaker reported the Royal Asset to the following Bis:-Matiny-Manne Matiny-Out-Pensioners SerVices. Chelsea and Greenwich-Out- Pensioners Parment, Greenwich and Chelsea-Downpatrick Gas-Radcife and Pikington Gas-Aylesbury Small Tenements. PRIVATE BUSINESS TRANSACTED. BILLS READ A FIRST TIME.

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Friday, March 27.

Nahi Railway, Norwich Branch Stockport Improvement Cameron's Coalbrook Steam Coal, and Swans and Lough "Eenient Lancashire, and Cheshire Junction Railway Hill and Linenia Direct Railway Bodwater and Taunton Canal, Railway, and Harbour Chari Canal Railway Newport and Pavenly Waterworks Bristol Waterworks and Sewerage. Monday, March 30.

Foat C. L. 15 the parties were allowed to withdraw their plea of the general lasne, to enable the parties to plead to the jurisdiction of the Court, the Attorney-General consenting-reinctantly consenting, but consenting, at the suggestion of the Court. Now, whether the case of Rez. Sheures arise out of this case or act i cannot say, but the pica in that case was one which the prisoner could not be expected to have verifed positives. I sect. of the statate it is provided, this Art before contained than extend to kay, marier, to any indictmeat," ke. been observed by Lord Mansfeld 3 Br. 1617, R. v. Granger, that the 7th sect. of the statute 4 & 5 Anne, c. 14, wich is precisely similar to the Irish Act (6) Ante 1.13 does not extend to the 11th section, which reuires a verification of the plea, and in the last case of the kind which was before this Court, the traverser's plea was verified by afidant. In that case (Reg. T. Dufy and others, (5) verification was considered necessary under these circumstances. I agree with my brother Barton, that it is now too late to raise any doubts or difficulties upon tais question, and am of opinion that there ought to be a verifying affidavit to sustain a pica of this kind; and the question then | Sion College Estate is, is that a proper verifying affidavit, or not? Now, Worcester Gas the statute is very precise; the words of the eleventh, Shefeld, Buxton, Leek. Potteries, and Crewe Railway section are: "That no dilatory plea shall be received Inverness and Elgin Junction Dunblane, Doune, and Callander Railway in any csart of record, unless the party offering such Halesworth and Norwich. plea do by affidavit prove the truth thereof, or shew some probable matter to the Court to induce them to Lesmahago, Daiserf, and Coatbridge Mineral Junction Railbelieve that the fact of such datory plea is true." Such an af lavit as was made in the case of Reg. v. Dufy was quite a proper coe. Now the party patting in a plea of this kind is bound either to make an affidavit shewing the truth of the fact averred in his plea or to show some “probable matter to the Court to is face the Court to believe that it is true. The Court is not to make a rule upon its own opinion of a matter of fact, upon the opinion of one, or of all the members of the Court, upon a thing which has passed many days before; it is for other parties to shew these things to the Court, and not for the Court to shew them to themselves. Then there is

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no affidavit of the party to verify the plea in this case. I think we should be establishing a most dangerous precedent if we granted such an application as that of the traverser's counsel. We are called upon to establish a new precedent, that all that passes before the eyes of the Court is to be registered in the minds of the Court. Suppose, as has been the fact, the case of one jadge seeing what passed and two others not seeing it, what is to be done in that case? Is the rule to be made in conformity with the opinion of the one judge, or the majority? Under these circumstances, I am of opinion that this pica must be

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BILLS READ A TRIED TIME AND PASSEDMonday, March 30. Brighton and Chichester Railway. Calder Branch So ith-Eastern Railway, Tunbridge Wells to Hastings and Rre

Brighton, Leves, and Hastings Railway Deviations, and
Eastbourne, Hataham, Seafiri, and Newhaven Branches.
Wednesday, Apr 1.

Bromsgrove Improvement and Small Tenements
Sunderland Gas

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CHELSEA AND GREENWICH PENSIONERS.By the Bill now before Parliament for amending the Act for rendering effective the services of the Chelsea out-pensioners, and extending it to the out-pensioners of Greenwich Hospital (which Bill, as amended, has been printed, it is proposed that the Act 6 & 7 Viet. s. 95, for the enrolment of Chelsea pensioners, shall extend to Greenwich pensioners who may have served in the Royal Marines in like manner as if they were out-pensioners of Chelsea Hospital; and that the whole number of pensioners of both hospitals to be enrolled in the United Kingdom is not to exceed 20,000 men, and that the days of inspection or exercise shall not exceed 12 in one year. In the event of any of the out-pensioners of Greenwich Hospital so enrolled volunteering their services to be kept on duty and pay for any period not exceeding six months, they shall only be employed within the United Kingdom, or along the sea-coasts thereof. The Lord Lieutenant of Ireland may call out the Irish pensioners to aid the civil power in the preservation of the public peace.

BUILDINGS ACTS.-A bill entitled an “Act to amend an Act for regulating the Construction and Use of Buildings in the Metropolis and its Neighbourhood." The Bill provides that a third official referee in addition to the two appointed under the existing law, shall be appointed by the Secretary of

Bristol and Birmingham Railway, Gloucester and Stonehouse, State; that any two of the official referees may act ;


Buckinghamshire Railway, Tring to Banbury
Birmingham, Wolverhampton, and Dudley Railway
Midland Railway, Erewash Valley Branches
Erewash Valley Extension
Reading, Guilford, and Reigate Railway
Worcester and Porthdynllaen Railway
West London Railway Improvement and Extension.
Glasgow Union Arcade

St. Austell Small Debts

London and Birmingham Railway Extension

that certain disqualifications for that office shall be removed, so that an official referee may henceforth be authorized by the Secretary of State to act as surveyor, architect, &c. provided he does not act as official referee, in the case of any building, &c. in which he is so employed; that special referees may be appointed by the Commissioners of Woods and Forests for such particular building or matter; that the salaries of the three referees collectively shall not exceed

Bristol and Gloucester, and Birmingham and Gloucester 2,000l. per annum; and that the sums now paid by


Monday, March 30.

Northumberland and Lancashire Junction Railway
Glasgow, Airdrie, and Monklands Junction Railway
Edinburgh and Bathgate Railway
Horbury Bridge and Calder Railway
Leeds and Thirsk Railway, Knaresborough Extension
Perth and Inverness Railway
Aberdeen, Banff, and Elgin Railway
Helensburgh Harbour

Hamilton New Gas

Helensburgh Extension and Police Shrewsbury and Herefordshire Railway.

Wednesday, April 1.

Preston and Wyre Harbour and Dock, New Dock and Railway

Ditto, Longridge Junction.

Bridgewater and Taunton Canal, Railway, and Harbour Chard Canal Railway

South Leith Church

Kilmarnock and Ayr Direct Railway

the city of London and the counties of Middlesex, Surrey, and Kent, to the commissioners of works and buildings for the said official referees and the registrar, should henceforth be paid for that purpose into the Consolidated Fund.

ADMINISTRATION OF CRIMINAL JUSTICE.-The Bill to remove some defects in the administration of criminal justice has been read in the House of Commons, having passed the House of Lords. It provides that in all cases where a Court is now by law empowered to award any sentence of transportation, it shall be lawful for such Court at its discretion to award such sentence for any term of years, not less than seven years, or to award such sentence of imprisonment with or without hard labour, as shall to the Court in its discretion appear just under all the circumstances. It is proposed to repeal the existing

Boston, Stamford, and Birmingham Railway, Stamford to provisions under which for certain offences the party


North Wales Railway

Herculaneum Docks
Darwen Waterworks
Chorley Waterworks

prosecuting is now required, at the Central Criminal Court, to enter into recognizances to prosecute, and to enable the party to go before the grand jury in the same manner as may be done before any other grand jury. It seems that doubts have been raised as to the proper place of trials where indictments have been removed by writs of certiorari from the Central Criminal Court into the Court of Queen's Bench, and in Huddersfiel 1 & Sheffield Junction Railway, Darfield Branch future such writs must specify the county or jurisBlackburn, Clitheroe, and North Western Junction Railway | diction where the indictment is to be tried.

Thursday, April 2. Plymouth Great Western Docks Kinross Junction Railway, No. 1. Blackburn, Darwen, and Bolton Railway

COUNTY ELECTIONS.-A Bill to limit the time of and other countries, in consequence of the expense taking the poll in counties at contested elections of here that attended conveyancing. The expense of the members to serve in parliament to one day conveyance of an acre was as great as that of a "Whereas it is expedient that the time of taking the large estate, and his measure would give great facipoll at contested elections of knights of the shire be lity to the commerce in land. There was a reluctance limited to one day; be it enacted by the Queen's most on the part of the profession, he had understood, to excellent majesty, by and with the advice and consent use the new forms because they were not compulsory, of the Lords spiritual and temporal, and Commons, in but he defied any one to make them so, for if a man this present parliament assembled, and by the autho- chose to use the long form of conveyance in preference rity of the same, that at any contested election of a to the short one, he could not compel him to adopt knight or knights to serve in parliament for any the latter. But in the present Bill he had inserted a county, or for any riding, parts, or division of a provision giving the Taxing Master power to take the county, the poll shall be kept open during one day matter into consideration, and not to allow the long only (any law or statute to the contrary notwith-form in costs, if it were shewn that the short one was standing); and such poll shall commence at eight sufficient.-Lord CAMPBELL concurred in the Bill. of the clock in the forenoon of the third day after the Three years ago he had himself introduced a measure day fixed for the election of each knight or knights, of the kind. He regretted, however, that his noble and the polling shall continue during such day only, and learned friend should have expressed an opinion and no poll shall be kept open later than four of the that the profession were hostile to it; for he felt sure clock in the afternoon. Provided always, and be it that they would be ready to adopt any improvement, enacted, that if such third day after the day of elec- and when these forms were promulgated by authority, tion be Sunday, Good Friday, or Christmas-day, then there was no doubt of their being adopted.-Lord the poll shall take place on the day next following BROUGHAM explained. He did not mean that the such Sunday, Good Friday, or Christmas-day; and if profession as a body objected to these forms, but only Christmas-day fall on a Saturday, then on the Mon- alluded to certain practitioners of both branches of the day following. And be it enacted, that this Act shall profession.-Lord BEAUMONT could not refrain from not extend to Ireland." congratulating those interested in real property that this question had at last been taken up by one of the ability of his noble and learned friend. Any one who had attended to the evidence before the burdens upon land committee, must know that the transfer of property was not only impeded by the present system, but that a great deal of capital which would be other wise invested in the cultivation of land was prevented from being employed in that way in consequence of the difficulty of raising money on mortgage, and in other transactions.

The Bill was then read a first time.



in the district, one district rate for the joint expenses, salary of the surveyor, salary of the clerk, and the general expenses of the board, the proportion for the district to be submitted to the enclosure commissioners in London, and receive their sanction. If the district should come to the resolution to make the charge a union charge, then only one rate would be necessary; but if they should not be so disposed, then there must be two rates levied, one district rate for the district charges; and, as at present, a parochial or township rate for the maintenance of the roads. He proposed to retain the present maximum rate of tenpence a rate; and that there should be no more than three rates in the course of the year, thus making the maximum highway rate per year 2s. 6d. in the pound. He proposed also that the rate should be collected by the collector of the poor rate; and with respect to the remedy in case of non-payment, and also in appeals, that it should be identical with that which at present regulated the collection of the poor rate. He proposed further that power should be given to borrow money for effecting improvement of the highways with the consent of the enclosure commissioners, providing that the principal and interest should be paid within 20 years. And with the view of enabling the commissioners to form a judgment before any outlay of such borrowed money was made, he would give them the power to send down an inspector to make a survey and report upon the condition of the highways, and the expediency of effecting the projected improvements. He preserved all the existing liabilities to repair, and also retained all the principal provisions which were so recently sanctioned by Parliament. With reference to South Wales, he should state that there were particular provisions in the Acts regulating the turnpikes in that part of the principality which would appear to interfere with the extension of this bill to the highways there; therefore, he should suggest that South Wales should be exempted from the operation of this amended Highway Act. The right hon. baronet concluded by moving for leave to bring in his bill.



The usual summary of cases in the last erm is completed below.

A reference to our report of such portion of the parliamentary debates as affects or interests our readers, will afford an outline of the Bill brought in by Sir JAMES GRAHAM, and read a first time on Thursday, to repeal all existing laws with respect to highways, and to reconstruct and consolidate the whole. We reserve comment on this important measure until the Bill shall have been printed, and a full opportunity thus afforded of canvassing the merits of its proposed enactments.

FRIENDLY SOCIETIES.-The Bill of Mr. Duncombe to amend the Act of 4 & 5 Wm. 4, relating to friendly societies, has been considerably altered in the committee. It was printed on Saturday last, with fifteen clauses, instead of three, as originally issued. It bears the names of Mr. T. Duncombe and Mr. Hawes. Purposes for which friendly societies may be formed are declared, and all existing societies, for which rules have been sanctioned, to be deemed to be within the provisions of the recited Act from the allowance of such rules. Mr. Tidd Pratt is to be paid a salary equal to the net average amount of fees received by him during the last three years, for certifying the rules of friendly societies, after deducting the necessary expenses of his office, &c. He is to be styled the Registrar of Friendly Societies in England, THURSDAY, April 2.-Sir J. GRAHAM rose to and the registrar hereafter to be appointed in Eng- move for leave to bring in a Bill to amend the laws land is to receive not more than 8001. a year. In respecting highways in England. The House was case the fees are insufficient, then the remainder for aware that the sum levied for the maintenance and salary and expenses to be paid out of the Consolidated repair of highways in England annually amounted to Fund. It is declared that after the passing of this 1,600,000l. In the Act brought in by the Speaker, a Act the barrister or advocate appointed to certify the permissive power was given to parishes to unite for rules of friendly societies shall be styled the Registrar the purpose of conjointly maintaining highway and of Friendly Societies in England, Ireland, and Scot-other paid officers. This power being permissive and land respectively. Disputes are to be referred to the not compulsory, had not been brought into general registrar; and when a trustee is absent from Eng- use; and the principal object of the measure which he land, bankrupt, insolvent, &c. the registrar may order sought to introduce was to substitute a compulsory for the stock of a society to be transferred and dividends a permissive power. To make the new enactment paid. perspicuous and perfect, he had thought it better to PROSECUTORS, WITNESSES, &c.-Presented by repeal all existing laws with respect to highways, and Lord Denman, and intituled, "A Bill for the Punish-to introduce a Bill re-enacting and consolidating the ment of such as shall endeavour to deter Prosecutors, whole. The first important provision was, that disWitnesses, and Jurors from the discharge of their Du-tricts should be formed throughout England and ty." Enacts, that every person who shall, in any part Wales, generally speaking, co-terminous with the reof the United Kingdom of Great Britain and Ireland, gistration districts. He proposed to give to the enafter the passing of this Act, by any threat, either closure commissioners, a body constituted by recent written or spoken, or by giving or offering any bribe Act of Parliament, the power of forming and regulator benefit, or in any other manner, endeavour to ing the districts. That would reduce the number from deter any person from appearing as a witness, prose- 1,400 or 1,500 to 550. The Bill would then provide THE NEW POOR REMOVAL BILL. cutor, or juror on any occasion on which he is by that, for each district, a surveyor should be aplaw bound or required to appear, or from honestly pointed, to be a paid officer, with assistant sub-surANOTHER, and still another, we involuntarily exdischarging his duty as such witness, prosecutor, or veyors. The power of appointing surveyors should claimed, when we took up this; and, as we suppose, juror, and every person who shall wilfully injure the rest with the local board in each district, the salary-since three weeks only have passed-the latest person or the property, either real or personal, of any being fixed by them, and the choice of the officer sub- attempt at patching that system of settlements and person who shall have appeared as a witness, prose-ject to the veto of the commissioners; the power of removals which, stamped as it is in every part with cutor, or juror, by reason of his conduct as such, dismissing officers should be with the enclosure comshall, on being duly convicted of such offence, be missioners, and concurrently with this power of proofs of legislative carelessness and incompetency, liable, at the discretion of the Court before which dismissal should be the power of dismissal on is yet, by dint of much litigation, tolerably well unhe shall be so convicted, to be transported be- the part of the board. With respect to the elec-derstood. As we hastily glanced over the sections, yond the seas for any term not exceeding fifteen tion of the board, he proposed that it should we naturally felt somewhat pleased that the very abyears, nor less than seven, or to be imprisoned be elected for two years by all rate-payers in each surd dictator-barrister scheme (see 6 Law T. 43, 67) for any term not exceeding two years, with or parish and township maintaining its own roads. Each had been nipped in the bud. But our next question without hard labour. parish or township was to be represented at the dis- was, is there any necessity for the present Bill? As trict board by one or more way-wardens as the enclo- it is more than probable that a few years will see the sure commissioners should determine. No hamlet, having less than four miles of road, had the right of abolition of all removals, would it not be far better choosing way-wardens. He proposed that there to add a few clauses which embody positive amendFRIDAY, March 27.-Lord BROUGHAM brought should be two paid officers in each district; one the ments, such as section 22, abolishing the right in a Bill-which he should move be read a first time surveyor, the other the clerk of the board. He pro- to go to the sessions for costs, than do away with an now, and a second time shortly after the holidays-posed that there should be a general annual meeting, existing system, and substitute, as the present Bill to redeem a pledge he had given to extend the whole- in which the accounts for the whole year should be proposes to do, a system just sufficiently resembling some and salutary provisions of two Acts of last ses- made up, and the estimates of repairs for the ensuing it, to render the old decisions analogous, and yet sion, for simplifying the conveyance and sale of landed year should be brought under their consideration by sufficiently different to open the flood-gates of doubt property and the granting of town leases. Those the paid surveyor of the district. He proposed that and difficulty, and give new vigour to parochial litimeasures had operated to the comfort of those who the accounts of the district should be annually audited, were really interested, but to the discomfort of cer- and he would suggest, inasmuch as it accorded with gation? For instance, 4 & 5 Wm. 4, c. 76, s. 79, tain parties who practised in conveyancing. He did the plans of his right hon. friend, that the poor-law as to sending a copy of examination, will no longer not, however, much care for those worthy counsel auditors should audit annually the highway accounts. be in operation; but ss. 14 and 16 require a copy and attorneys, but rather regarded their clients, whose These accounts, so audited, should be transmitted" of the grounds upon which the warrant was time and money had both been saved by the Acts in annually to the enclosure commissioners, and they made." Why this difference? question. His present Bill extended the former pro- should report annually to the Secretary of State, and This is our general view as to the expediency of visions to all sales and exchanges, and to the forms each report, together with the abstract of accounts, the alterations in the practice. The enactments as of leases. One of the greatest evils to which land- should be laid annually before the two Houses of to non-removability stand upon a different footing owners in this country were subjected was the ex- Parliament. He gave also the power, by the unani- altogether. We shall discuss them hereafter; but pense of conveyancing, and the consequent uncer-mous consent of the way-wardens forming the district tainty of title. A body of evidence had been given board, to convert the charge of the highway district we first propose to consider the alterations in pracbefore the committee on burdens on land, which was into a union charge instead of a parochial or township



quite frightful in this respect as shewing the differ-charge, with the consent of the parochial commis- The Bill opens with repealing" so much of the ence between the number of years' purchase in this sioners. He proposed that three rates should be made following Acts, and of all Acts to amend or continue

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the questions there litigated and decided. We have the rateable value of the buildings appurtenant to been prevented from doing this at the length we the main and branch lines, and separately rated in intended, but rather than delay, for a further period, their respective parishes. This point was not diswe shall now give a brief view of the points in-cussed in the Grand Junction case, but the Court volved in it, referring our readers to the elaborate now decided that the appellants were entitled to the report of it (supra, p. 316), for the full statement deduction, and as the respondents properly treated of the facts, and the mode in which the sessions the whole line, and the whole profits, and the whole arrived at the several amounts. outgoings as entire, it was indifferent whether the stations so rated were in the same parish or elsewhere.. The income-tax was also allowed as a deduction, because it would affect the amount of rent a tenant would be willing to pay.

The other deductions claimed were not supportable upon any principle hitherto recognised, although something could be urged in favour of the sixth. The third was in respect of interest upon the expenses incurred in obtaining the line. This is about as much connected with the existing rateable value: as the expense of litigating the title to land bought fifty or a hundred years ago. The fifth claim was in respect of such parochial assessments as should become payable in consequence of recent decisions. This was very summarily disposed of in the judg ment, and we apprehend the principle that rating, always proceeds upon the facts as they are found, is decisive upon it, for no information whatever was given as to when or how these payments were to be made, or even what they were.

The sixth claim was, in respect of the loss upon the branch lines. This was disposed of also upon an old principle, viz. that the terms "beneficial" and "profitable" are not convertible terms.

The Court further declared that in ascertaining the deduction for tenant's profits, the per centage should be calculated, not upon the original value of the plant and stock, but upon the existing value, however depreciated. But they declined to answer a question put by the sessions as to the mode of ascertaining the tenant's profits, whether as claimed by the respondents, the original value of the plant should be taken, and ten per cent. thereon taken, or as the appellants said, a per centage (fifteen per cent. in this case) upon the gross receipts. This they considered was solely a question for the ses sions, and not a question of law. E. W.

the same, as relates to the removal of poor persons settled in England." It then specifies the titles of 17 statutes, beginning with 13 & 14 Car. 2, and ending with 4 & 5 Wm. 4, c. 79; but in the margin are given the sections supposed to be repealed, which may be considered the framer's commentary upon the words "so much as relates to," &c. At the very threshold of this Bill we may say that there is great obscurity. It is easy to say The Great Western Railway Company being the much as relates to," but not so easy to sift relevant sole occupiers and owners of a trunk line, and the from irrelevant words. That this is no imaginary sole occupiers and lessees of two branch lines, cardifficulty will at once be seen, when we observe ried on a large trade upon all three lines. The that, we differ entirely from the view taken by a branch lines were worked at a loss, because thereby writer in the columns of a learned cotemporary, the main line was benefited. The different stations The Justice of the Peace. (See Nos. for March and buildings on all were rated separately. 21 and 28.) He there assumes that the Act repeals The main line passed through the parish of Tilethe whole of every section specified in the margin, hurst, and was rated in that parish in an amount just as if each had been numerically mentioned in ascertained by taking the gross receipts of each mile the body; and hence argues "that settlement by in that parish, and deducting therefrom various exapprenticeship; by rental of a tenement, under penses, including maintenance of way, rates and the 13 & 14 Car. 2, c. 12, s. 1; and 9 & 10 Wm. taxes, other than the property tax, and the annual 3, c. 11; by payment of rates; and by ac- depreciation of the plant or moveable stock, toknowledgment by certificate," will thereby be abo- gether with interest on the plant and tenant's lished; and that the settlement by estate will profits. Against that rate the Company appealed, be restored to what it was prior to 9 Geo. 1, c. 7, and upon that appeal they claimed the following, in s. 5; so that a person may gain a settlement by addition to the above deductions. 1st. The deany estate purchased under, at, or over 301." Now, pression and wear and tear of rails, sleepers, &c. if this were the effect of the statute, it would be a (not including the above item for maintenance of paltry subterfuge, almost amounting to a fraud, to way). 2nd. The buildings, stations, &c. rated or foist off a Bill for abolishing certain settlements and rateable, separately from the railway. 3rd. A per suspending others, as a Bill to amend the law of re- centage on the outlay in forming the Company, obmoval of persons settled. But we do not thus charge taining the Act, and other original expenses. 4th. Sir James Graham, for we know of no principle or Income tax. 5th. Additional parochial assessauthority upon which those marginal notes can ments, not actually paid, but which would be payhave the effect given to them by our learned cotem-able in consequence of the recent decisions of this porary. We shall not go through each statute to Court on the rating of railways. 6th. The annual ascertain whether there is or is not any thing "re- total loss on the two branch lines. It was held, lating to the removal of poor persons, ," but merely on a case reserved, that the 1st and 4th deductions observe that, besides the absence of authority, or were proper, the 3rd, 5th, and 6th were improper, principle upon which the marginal notes could be and that the second deduction, though correct in princalled part of the statute, the addition of the words ciple, could not be made in this case because no annual "settled in England," clearly shews that the effect fund had in fact been appropriated for the purpose. as well as the aim of the statute is to leave all From the time that this case has remained under the existing settlements untouched, and to add no new consideration of the Court, even after the deliberaones, although the operation of the existing ones tion which preceded their judgments in the South may be suspended, or destroyed by the non-remova- Western Railway (1 Q. B.) and the Grand Juncbility clauses. Then to take one or two instances tion Railway (4 Q. B.), the principles of these only, it is clear the repealing clause can operate cases may be regarded as finally established. The without repealing the sections specified in the mar- main point in all is, that while the profits first gin, and probably it is so in every case. Thus 3 W. & of trade, gain, or profits are not rateable, yet M. c. 11, ss. 3-10 inclusive are in the margin, and that to ascertain the value of the occupation, the hence it is said settlement by payment of rates is only proper subject of the rate, all must be included abolished, because it owes its origin to the 6th that forms part of it at the time, whether permasection. But is that section repealed by the words nently or not; and, further, that in fixing the sum "relating to the removal of poor persons?" They can which it would, after due deduction, be supposed a operate, if not upon the section continuing the 13 & tenant would give, all concomitant circumstances 14 Car. 2, certainly upon s. 9, which gives an appeal are to be considered, or, to use the words in the in the cases of the settlements created by that Act, Grand Junction case, not merely what a lease would and for which the 25th section is substituted in the give the tenant a legal title to, but all that which new Bill. So, again, sec. 7 is mentioned in the it would give him the means of doing or enjoying. margin, although the settlement by hiring and It followed from this, that land upon which a railservice thereby created was destroyed by 4 & 5 way is, must be rated according to its actual value Wm. 4, c. 76, s. 64, which expressly enacted "that in the rating parish, although such value arises in no settlement should thereafter be gained by hiring a great measure from station-houses and other works and service, or by residence under the service, or not within the parish. by serving an office." We are ready to admit that the far more simple method would be to specify in the body of the Act what sections or parts of sections are to be repealed, and that also that the difficulty of clearly harmonizing these half mutilated Acts with the present, and, above all, with the Poor-Law Amendment, which is incorporated with this by sec. 37, will be great. Still, we cannot see that this Bill either intends, or, what is much more to the purpose, that it effects the destruction of any existing settlement. That a different view has been already taken, renders it quite certain that, if the Bill passes as it stands, there will be many litigated questions upon this single section alone. This, therefore, must be remedied by a declaratory clause that nothing herein contained shall alter or destroy any of the existing settlements, or any of the modes of acquiring a settlement. Having thus explained what we believe is the effect of the first section, we shall hereafter proceed to set forth both the alterations that are made in the practice of removals, and the defects which may be apparent in the different clauses.

(To be continued.)

E. W.

In considering the deductions to be made in any case, the question is, whether they arise upon the ordinary occupation, exclusively of trade; or, if referable to trade, whether they are referable to trade only, and do not enhance the value of the occupation. In either of these cases the deductions are to be made. The amount is to be settled by the sessions. Going back, then, to the proposed deductions in this case, it will be seen that two were contested, which previously had been conceded. 1. The depreciation and wear and tear of rails and sleepers (being the solid timber and iron work of the lines) over and above the annual repairs, or maintenance of way, which are directly distinguishable from each other.

REVIEW OF MAGISTRATES' CASES. (Continued from page 352.) WE omitted last week the case of Reg. v. Great Western Railway, being desirous of giving it a separate notice, commensurate with the importance of

By T. W. SAUNDERS, Esq. Barrister-at-Law.
(Continued from page 507.)

PART III.-CHAPTER II. The formal conviction and order continued. BEARING in mind the distinctions pointed out in the last chapter as existing between convictions and orders, it will be convenient to consider these documents in future as identical, and without, therefore, distinguishing the rules hereafter to be laid down as applicable peculiarly to the one species> of instrument or the other, to assume that they apply equally to each, subject to the exceptions which have before been mentioned.

The general form of conviction.-In modern Acts of Parliament, which confer on magistrates a power to hear and determine summarily, a form of conviction is usually inserted for their guidance. To provide, however, a safe and convenient prece dent for adoption in cases in which no particular form is given, the Legislature has supplied a form, which may be filled up and used as circumstances may warrant. The statute referred to is the 3 Geo. 4, c. 23, entitled "An Act to facilitate summary proceedings before justices of the peace and others," and commences as follows :—

"Whereas great inconveniences often arise in summary proceedings before justices of the peace, deputylieutenants, and others, from the want of a general form of conviction: Be it therefore enacted, that from and after the passing of this Act, in all cases The deduction itself was objected to; first, be- particular form for the record thereof hath been where a conviction shall have taken place, and no cause there was no actual outlay; and next, because directed, the justice or justices, deputy-lieutenant or there was not even any fund created as a reserve deputy-lieutenants, or other person or persons duly for the purpose, which might be equivalent to an authorized to proceed summarily therein, and before outlay. The Court decided that the deduction was whom the offender or offenders shall have been conright in principle, as being quite as certain an in-victed, shall and may cause the record of such con crease of expenditure as actual repairs; but that the second ground of objection was fatal, and that, in order to establish such a claim, the company must set apart an actual sum for the purpose.

The same analogy which decided its correctness in principle decided its incorrectness in this instance. For if repairs, however much needed, be not made, no deduction in respect thereof can be allowed. The other contested deduction was in respect of

viction to be drawn up in the manner and form fol lowing, or in any words to the same effect, mutatis mutandis (that is to say) :"County (or as Be it remembered, That on the the case may be) day of in the year of our Lord the county of in the county of A B, of in labourer (or as the case may be), personally came before me (or, before us, &c.) CD, one (or more as the case may be) of her Majesty's

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justices of the peace for the said

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and in- words "to the like effect" be added. (R. v. Jef-" All that is required of them is, to set out the
in the feries, 4 T. R. 769; R. v. Priest, 6 T. R. 538.) evidence as nearly as possible in the words used by
In which case also care must be taken that the con- the witnesses; that is, the substance and effect, but
viction is precisely according to the intent and not every word. Here it is suggested that the wit-
meaning of the Act. (Griffiths v. Harries, 2 M. nesses are made to speak in the language of an Act
No illiterate witness, nor, indeed,
& W. 335.) (a) Where, in any given case, the of Parliament.
form of conviction prescribed by the statute cannot any witness, would say that the defendant did use
literally be followed so as to shew the real facts and a certain engine called a gun, and a certain dog
circumstances, it should be departed from so as to called a pointer, to kill and destroy the game.' The
be made to apply with greater perspicuity. (R. v. conviction must set out the language used by the
Hazell, 13 East, 139; R. v. Ridgway, 5 B. & witness, in order that it may be seen whether a
Ald. 527.)
right conclusion is drawn from it." The rule was
The several parts of a conviction-Venue-In-made absolute. So, too, it is the duty of the jus-
formation.-The statement of the venue in the tices to set out all the material evidence adduced on
margin indicates only the place at which the convic- the behalf of the defendant; and in the case of Rex
tion was made, and not where the offence was com- v. Rix (4 D. & Ry. 352), which was a similar ap-
mitted, so that it in no way supplies the want of plication to that in R. v Warnford, Abbott, C. J..
the allegation of place in the body of the convic- observed, "I am clearly of opinion that the direc-
tion. (R. v. Austin, 8 Mod. 309.)
tion in the statute (3 Geo. 4, c. 23) embraces the
evidence both in support of the information and
for the defendant. The justices are not bound to
set out all the irrelevant matter which may happen
to be given in evidence before them; they are to
state the evidence, as nearly as possible in the
words used by the witnesses, but this must be un-
derstood to mean such evidence as is relevant to
the charge contained in the information. The jus-
tices must use their discretion in this matter,
but it is quite clear that it is their duty to
attend to the general directions contained in the

did (here set forth the fact for which the information is laid), contrary to the form of the statute in such case made and provided; whereupon the said E F, after being duly summoned to answer the said charge, appeared before me (or, us, &c.) on day of in the said and having heard the charge contained in the said information, declared he was not guilty of the said offence; (or as the case may happen to be) did not appear before me (or, us, &c.), pursuant to the said summons, (or, did neglect and refuse to make any defence against the said charge); whereupon I (or, we, &c. or, nevertheless I, or, we, &c.) the said justice (or, justices) did proceed to examine into the truth of the charge contained in the said information; and on the day of aforesaid, at the parish aforesaid, one credible witness, to wit, A W, of , in the county of , upon his oath deposeth and saith (if E F be present, say, in the presence of the said E F) that within months (or as the case may be) next before the said information was made before me (or, us, &c.) the said justice by the said A B, to wit, on the day of the year the said E F, at in the said county of (here state the evidence, and as nearly as possible in the words used by the witness; and if more than one witness be examined, state the eridence given by each); (or, if the defendant confess, instead of stating the evidence, say) and the said E F acknowledged and voluntarily confessed the same to be true; therefore, it manifestly appearing to me (or, us, &c.) that he the said E F is guilty of the offence charged upon him in the said information, I (or, we, &c.) do hereby convict him of the offence aforesaid, and do declare and adjudge that he the said E F hath of lawful money of Great Britain for the offence aforesaid, to be distributed (or, paid, or as the case may be) according to the form of the statute in that case made and provided. Given under my hand (or, our hands, &c.) and seal, the in the year of our Lord

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forfeited the sum of

day of

The second section enacts


The conviction then recites the information or charge, and this usually in the past tense; and where the information has previously been taken in writing, it should be followed as nearly as possible, otherwise it may be stated shortly, according to the facts. The legal requisites of an information have before been fully described, and it will, therefore, be unnecessary here to repeat them.

The summons; appearance or non-appearance of defendant.-The conviction should set out that the defendant was summoned to answer the charge, except in those few cases in which justices have jurisdiction to convict on view of the offence, (which, when they arise, must be specially referred to); but when the defendant appears, by the conviction, to have been present during the proceedings, and to have heard all the witnesses, and not to have asked for time for his defence, the statement of the summons may be dispensed with. R. v. Stone (1 East, 649.) It is sufficient, under the 3 Geo. 4. c. 23. s. 1, as before observed, to state generally that the defendant was duly summoned; and this form of statement is now sufficient in all cases except where a different mode of statement is not prescribed. R. v. Stone (1 East, 639); R. v. Hall (6 Dow. & Ry. 84); Mason v. Barker (1 Car. & Ker. 107, n.) The statement of the summons is not, however, conclusive upon the defendant, and he may, in an action against the convicting justice, shew that he never was, in fact, summoned to answer the charge. Mason v. Barker, suprà.

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similar application to this made last Easter Term, in the case of a game conviction, and we were of opinion on that occasion that it was the duty of the magistrates to set out the evidence on both sides, where it was relevant to the matter in issue."

Must be on oath in the defendant's presence.

The name of each witness should be mentioned, and it should be stated that he was examined upon oath; nor is this allegation dispensed with by the insertion of the words " having duly examined into "That in all cases where two or more justices, dethe allegations and the proofs." Re Jones (1 New puty-lieutenants, or others, are authorized and required to hear and determine any complaint, one jusSess. Ca. 3); Re Tordoft (1 Ib. 171, 1 New. tice, deputy-lieutenant, or such other person, shall Mag. Ca. 17 s.c.); Reg. v. Wroth (1 New Sess. be competent to receive the original information or Ca. 494); and this whether the statute expressly complaint, and to issue the summons or warrant rerequires such statement to be made or not. Reg. quiring the parties to appear before two or more jusv. Lewis (13 L. J. M. C. 46); Re Gray (1 New tices of the peace, deputy-lieutenants, or others, as Sess. Ca. 354, 1 New Mag. Ca. 116 s.c.); in which the case may require; and after examination upon latter case Mr. Justice Patteson said, "Then what oath into the merits of the said complaint, and the am I to understand by the words duly examined adjudication thereupon by any such two justices, deThe statement of the appearance or non-appear- into the allegations and proofs?'" Does that mean puty-lieutenants, or other persons being made, all and every the subsequent proceedings to enforce obe-ance is prescribed by the form of conviction given in that the witnesses were examined on oath? Cer dience thereto or otherwise, whether respecting the the 3 Geo. 4, c. 23, s. 1. Unless where it is rendered tainly that is not proved by the term 'allegations," penalty, fine, imprisonment, costs, or other matter or necessary by the terms of the Act, the defendant need and I do not think that I can assume that proof thing now enacted or to be hereafter enacted, may be not appear in person, but may appear by counsel or must mean legal proof given upon oath. The conenforced by either of the said justices, deputy-lieute- attorney, 6 & 7 Wm. 4, c. 114, s. 2. Where, how-viction, therefore, is bad, because it does not apnants, or other persons, or any other justice of the ever, he thus appears, the fact should be so stated. pear on the face of it that the witnesses were expeace or deputy-lieutenant for the same county, Where the information is taken by one justice, and amined on oath." According to Reg. v. The Justices. riding, or place, in such and the like manner as if the conviction takes place before another, or others, of Buckinghamshire, (14 L.J. M. C. 45, 1 New Mag.. done by the same two justices, deputy-lieutenants, or other persons who so heard and adjudged the said Ca. 192), where the witness makes an affirmation, complaint; and where the original complaint or inthe statement in the conviction should be comform formation shall be made to any justice or justices of the peace, deputy-lieutenant or deputy-lieutenants, or other person or persons, different from him or them before whom the same shall be heard and determined, the form of conviction shall be made conformable and according to the fact."

The third section enacts

"That in all cases where it appears by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed against the said conviction, where an appeal is allowed, or if appealed against the conviction has been affirmed, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case."

as it may do under the provisions of the second sec-
tion of the 3 Geo. 4, c. 23, care should be taken
that the statement in the conviction is in accord-able with the fact.
ance with the facts.

Confession of defendant.—If the defendant appear
and confess the charge, the conviction should be
made conformable to the fact, and then, instead of
stating the evidence, which in such case is unneces-
sary, it should proceed at once to the statement of
the conviction itself, and the adjudication. This,
however, is to be understood only as applicable to
cases where the entire charge is admitted; for if
the confession merely goes to a particular fact,
which is but a single ingredient out of several of
which the offence is made up, the conviction, after
stating the confession in the terms of the defendant,
should proceed to state the evidence as to the other
facts constituting the offence. (R. v. Gage, 1 Stra.
When the statute empowering the justices to
convict says that "the conviction shall be in the 546; R. v. Hall, 1 T. R. 320; R. v. Little, 1
Burr. 613.) The statement of a confession is pro-
form following," or uses other words, shewing that vided for by the form given in the 3 Geo. 4, c. 23.
the form prescribed is not to be departed from, The confession cures any defect in the manner of
such form only can be used, unless, indeed, the the taking of the evidence. (R. v. Hall, suprà.)
(a) Although, as a general proposition, it is sufficient to The statement of the evidence.-As a general
follow the form of conviction given to the statute, yet there
are cases in which it is not; as, where the form does not
shew some of the ingredients necessary to make up the
offence. (Fletcher v. Calthorpe, 1 New Sess. Ca. 542, where
all the cases are collected.) And in a later case, Reg. v.

rule, the whole of the evidence adduced in support
of the charge should be stated in a clear and per-
spicuous manner, and as nearly in the words of the
witnesses as possible. In Rex. v. Warnford (5 D.
& Ry. 489), which was an application for a manda-
mus to justices to amend a record of a conviction

Johnson (2 New Sess. Ca. 174), Lord Denzian observed, "It
might be supposed, that when a statute gives a form of con-
viction, that form, when adopted, must necessarily be good;
but the Court has found itself bound to impose some re- on the Game Laws, by setting out the evidence on
strictions on that general proposition; for if an Act con-
tains a description of an offence, and of the circumstances
which are required to constitute it, and if the form given in
the statute does not contain all the particulars which, by the
provisions of the statute, go to make out the offence, it be
comes impossible for the Court to say that the offence has
been committed."

which it was founded as nearly as possible in the
words used by each witness, it being suggested that,
as the record stood, it made the witnesses swear in
the technical language of the statute, and not in the
words actually used by them, Abbott, C. J. said,

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The evidence should be stated to have been given in the defendant's presence, to the end that he may be shewn to have had an opportunity of cross-examining, (unless the conviction shew that the defendant did not appear). (Reg. v. Tordoft, 5 Q. B. 933, 1 New Sess. Ca. 171; 1 New Mag. Ca. 17 S.C; Rex. v. Vipont, 2 Burr. 1163; R. v. Crowther, 1 T. R. 125.)

Evidence should be set forth at length. It is a general rule that in a conviction the evidence should be set out, that the Court may judge whether the justices have done right, Rex v. Killett (4 Burr. 2062), and this though the defendant may have neglected or refused to have attended, R. v. Read, (Doug. 469); and the form given in the 3 Geo. 4, c. 23, requires this to be done in cases within that. Act. Some modern Acts of Parliament which preseribe a form of conviction, as the Game Act, 1 & 2 Wm. 4, c. 32, s. 39, omit all statement as to


evidence in such cases it is of course sufficient to follow the form given. But, although it is the duty of the justices to set out the whole of the evidence which is relevant, both on the part of the complainant and the defendant, their decision will not be questioned if there be any evidence, howsoever small, to justify their decision. Upon this point, Lord Kenyon observed, in Rex v. Davis (6 T. R.. 177), "With regard to the other objection (viz. that the evidence was not sufficient to support the conviction), here was evidence tending to prove the offence. That being the case, we have no authority to examine further and see whether the conclusion drawn by the magistrate be or be not the inevitable.

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