he is acting within his jurisdiction. See Kite's case, 1 B. & C. 101. Thus it will not be enough to state that he is a justice in the county, without stating that he is of or for the county, Rex v. Dobbyn, Salk. 473; the name of the offender or offenders, Rex v. Harrison, 8 T. R. 508; the time of the offence, so that the information may appear to have been laid in due time, Rex v. Pullen, Salk. 369; Rex v. Chandler, Salk. 378; Rex v. Crisp, 7 East. 389; the place, that it may appear to have been within the justice's jurisdiction, Kite's case 1 B. & C. 101, et notam. Lastly, the charge must be set forth with proper and sufficient certainty, and must contain every ingredient necessary to constitute the offence, leaving nothing to mere inference or intendment. "A conviction," to use the words of Lord Holt, "must be certain, and not taken by collection." Rex v. Fuller, 1 Lord Raym. 509; Rexv. Trelawney, 1 T. R. 222. Generally speaking, it is sufficient to state the offence in the words of the act creating it; see Rex v. Speed, 1 Lord Raym. 583; Davis v. Nest, 6 C. & P.167; Ex-parte Pain, 5 B. & C. 251. Cases, however, may occur in which the words of the statute are so general as to render some more certainty in the conviction necessary; per Denison, J., Rex v. Jarvis, 1 Burr. 154; Ex-parte Hawkins, 2 B. & C. 31; Rex v. Perrott, 3 M. & S. 379. Exceptions in the statute creating the offence should be ne

gatived where they appear in the clause creating the offence; Rer v. Clarke, 1 Cowp. 35; Rex v. Jukes, 8 T. R. 542; though it is otherwise when they occur by way of proviso in subsequent clauses or statutes; Cathcart v. Hardy, 2 M. & S. 534; Spieres v. Parker, 1 T.R. 141; Rex v. Hall, 1 T. R. 320. In analogy to indictments, it appears right that the information should conclude contra formam statuti. However, there are many cases where technical words, that would be necessary in an indictment for the same offence, are unnecessary in a conviction; see Rex v. Chandler, 1 Lord Raym. 581; Rex v. Marsh, 2 B. & C. 717.

2. It must appear that the defendant was summoned or brought up by warrant, for it would be contrary to natural justice to convict without giving him an opportunity of being heard, Painter v. Liverpool Gas Co. 3 Ad. & Ell. 33; and the summons should give him reasonable time, Rex v. Mallinson, 2 Burr. 679; Rex v. Johnson, 1 Str. 261. If, indeed, he appear of his own accord, that will dispense with a summons, Rex v. Stone, 1 East 649. See Rex v. Justices of Wiltshire, Mich. 1840, B. R. If a summons be ineffectual, a warrant may, at least in some cases, be issued; see Bane v. Methuen, 2 Bingh. 63; but then the information ought to have been upon oath; see Rex v. Payne, Comberb. 359; per Holt, Barnard, 34; and it is the opinion of Mr.

Paley that a warrant (in the absence of express enactment) lies only when the offence involves some breach of peace, Paley 37.

3. The appearance or non-appearance of the defendant should be stated. If, being summoned, he do not appear, he may nevertheless be convicted, for otherwise any defendant might escape merely by not appearing, Rex v. Simpson, 1 Str. 44.

4. If the defendant confess, that should be stated, and there is then no necessity for evidence, Rex v. Hall, 1 T. R. 320; Rex v. Clarke, Cowp. 35; even though the statute direct the conviction to be "on the oath of one or two credible witnesses :" see Rex v. Hall, ubi supra; Rex v. Gage, Str. 546, & 1 Wm. Saund. 262 N. 1.

5. If the defendant do not confess, the evidence must be set forth. It should be given in his presence; but if the evidence and appearance be stated as on the same day, that will be presumed, Rex v. Swallow, 8 T. R. 284. There is a distincThere is a distinction in this respect between orders and convictions. On a conviction the evidence must be set out, in order that the superior court may judge of it, Rex v. Vipont, Burr. 1163: to state that the offence was fully and duly proved is insufficient, Rex v. Baker, Str. 316. In an order it is sufficient to state the result of it; see Rex v. Lovat, 7 T. R. 152; Rex v. Justices of Cheshire, 5 B. & Ad. 439; Rex v. Green, 10 Mod. 212; Rex v. Marsh,

387

2 B. & C. 717. It is true that a conviction is good if it profess to set out the evidence, although in the very words of a statute; but if the magistrate so framing his conviction alter its effect and state it as proving more than it really did, he subjects himself to a criminal information, Rex v. Pearse, 9 East, 358: and it is said that in a case of Rex v. Allen, cited in Paley on convictions, the magistrate was advised in such case to draw up a fresh conviction; see 5 D & R. 490, and see Re Rix, 4 D. & R. 352. However, it is not necessary that every word used by the witnesses should be stated, Rex v. Warneford, 5 D. & R. 490. As the reason for setting out the evidence is that the superior court may judge of it, it follows that, if the evidence do not warrant the conviction, the latter will be bad. Rex v. Ransley, 3 D. & R. 572; Rex v. Smith, 8 T. R. 588. But it is not necessary, in order to warrant the conviction, that the justices should clearly have come to a right decision in point of fact. If there was evidence from which any reasonable person might have drawn the same inference as they did, that will do, Rex v. Glossop, 4 B. & A. 616; Anon. 1 B. & Ad. 382. Indeed, the magistrate being substituted for a jury, his decision cannot be said to be wrong if the evidence was such as might have been left to a jury, and from which they might have drawn the

same conclusion, Rex v. Davis, 6 T. R. 178.

6. There must be a judgment and an adjudication of the proper forfeiture; see Rex v. Harris, 7 T. R. 238; Rex v. Salomons, 1 T. R. 251; Rex v. Hawkes, Str. 858. There is, however, no particular form of judgment, Rex v. Thompson, 2 T. R. 18. And the adjudication may be good in part though it exceed the jurisdiction of the justices, provided the excess be severable, Rex v. Justices of Wiltshire, Mich. 1840, B. R.; Rex v. St. Nicholas, 8 A. & E. 79. The application of the penalty, where the act directs any mode of applying it, is a necessary part of the judgment. It is sufficient in most cases to state that it is to be distributed or paid according to the form of the statute in such case made and provided. But, when the statute leaves the application discretionary, the mode in which the discretion was exercised ought to be stated, Rex v. Dempsey, 2 T. R. 96. Where the justice is to give costs or charges, he must ascertain their amount in the conviction, Rex v. Symons, 1 East, 189; Rex v. St. Mary, 13 East, 57.

Lastly, the conviction must be subscribed, dated, and sealed; see Rex v. Elwell, Str. 794; Basten v. Carew, 3 B. & C. 649. The reason of dating it is, that it may appear when it was made; and if that do appear, that is enough, and an impossible date might be rejected, Rex v. Picton, 2 East,

198 see Rex v. Bellamy, 1 B. & C. 500.

The above observations apply to convictions in general; but a conviction is the creature of the statute law; and, if the statute prescribe any particular form for it, no matter what, that form must be strictly pursued, Davison v. Gill, 1 East, 72; Goss v. Jackson, 3 Esp. 198.

It is obvious that, as so much precision is required in drawing up a conviction, magistrates and their clerks must have been under considerable difficulty, and must have run considerable risk in framing it. For their ease and protection, statute 3 Geo. 4, cap. 23, has provided a general form, in which sec. 1 enacts that it may be drawn up where no particular form has been directed.

If a conviction be void on the face of it, it follows, as of course, that no act done in pursuance of it can be justified, and that any seizure of person or property under it will form the subject matter of an action, as will be seen in the principal case. But besides this, there are two modes of impeaching it, first by appeal, secondly by

certiorari.

An appeal, like a conviction, is the creature of the statute law, and never lies unless where it is given by express terms, Regina v. the Recorder of Ipswich, 8 Dowl. 103; Rex v. Hanson, 4 B. & A. 521. The rule with regard to a certiorari is the very converse. It always lies

unless expressly taken away, Rex v. Abbot, Dougl. 553; and it requires very strong words to do so; for even where a statute gave an appeal to the sessions, and directed that it should be finally determined there, and no other court should intermeddle with the causes of appeal, it was held that a certiorari lay after the appeal. Rex v. Moreley, 1 W. Bl. 231; Rex v. Jukes, 8 T. R. 542: see Rex v. Justices of West Riding, Yorkshire, 1 A. & E. 575; where it was taken away, Rex v. Fell, 1 B. & Ad. 380. The reason of this is, that it is an extremely beneficial writ, being the medium through which the Court of Queen's Bench exercises its corrective jurisdiction over the summary proceedings of inferior courts. Even where it is taken away in express terms, they do not include the crown unless named, Rex v. Davies, 5 T. R. 626; Rex v. Allen, 15 East, 333; Rex v. Boulbee, 4 A. & E. 498. Nay it is said that the Attorney-general, on behalf of the Crown, might in such case obtain the writ for a defendant; see 1 East, 303, note, and the authorities there cited.

A certiorari is a writ, issuing out of the Court of Chancery or the Court of Queen's Bench, commanding the judges or officers of an inferior court to certify and return the record of a matter before them. It is used for a great variety of purposes; but we are at present looking only at its appli

cability to the case of a conviction. No writ of error lies upon a conviction; so that a certiorari is the only mode of bringing it into the Queen's Bench in order to reverse it. It is not, however, like a writ of error, granted ex debito justitie; but "application is made to the sound discretion of the court," Rex v. Bass, 5 T. R. 252; Rex v. Manchester and Leeds Railway Co., 1 P. & D. 164; Rex v. South Holland Drainage Committeemen, 1 P. & D. 79. This application is by way of motion, and by 13 Geo. 2, c. 18, sec. 5, no certiorari shall be granted to remove any order, conviction, or other proceeding, before a justice or at the sessions, unless it be applied for in six calendar months, and upon oath made that the party has given six days' notice in writing to the justice or justices, or two of them, if so many there be :" see Rex v. Boughey, 4 T. R. 281; Rex v. Bloxam, 1. A. & E. 386. The notice to the justices must be six days before the rule nisi is moved for, one day inclusive, the other exclusive, Rex v. Goodenough, 2 A. & E. 463; Rex v. Flounders, 4 B. & Ad. 865. It must be by or on behalf of the party intending to move, and must appear to be so, Rex v. Justices of Lancashire, 4 B. & A. 289; Rex v. Justices of Cambridgeshire, 3 B. & Ad. 887; Rex v. Justices of Kent, 3 B. & Ad. 250; Rex v. Justices of Lancashire, 3 Perr. & D. 86; Rex v. Justices of Shrewsbury, Mich. 1840, B. R.;

Rex v. How, 11 Ad. & Ell. 159. But the Crown seems not to be bound by this even where it espouses the defendant's side, Rex v. James, 1 East, 303, note; Rex v. Berkeley, 1 Keny. 80; Rex v. Battams, 1 East, 298. If, upon the discussion of the rule, the writ be granted, it removes the conviction into the court above, where it is quashed if bad; if good, it remains in the Queen's Bench, unless, indeed, to keep it there would occasion a defect of justice, in which case it may be sent back again by writ of procedendo, Rex v. Nevile, 2 B. & Adol. 299.

The Court of Queen's Bench, exercising its appellate power over a conviction removed into it by certiorari, will not allow the merits of the case to be again litigated upon affidavit; for the justices are the proper persons to determine upon those. But a question has occasionally arisen whether, in cases where the justices have proceeded without jurisdiction, and have nevertheless stated upon the face of the conviction facts showing a jurisdiction, it be competent to the defendant to prove the want of jurisdiction by affidavit. It certainly appears desirable that the court should have power to entertain the question of jurisdiction. Some cases might easily be suggested, in which not only great private but great public inconvenience might arise from leaving an invalid order or conviction unreversed, and great injustice might be caused by allow

ing justices out of or in sessions, by making their order or conviction good upon the face of it, to give themselves a jurisdiction over matters not entrusted to them by the law. Whether a mandamus would lie in such a case to oblige them to make a correct statement, is a question which the Court of Queen's Bench would, at least in the majority of instances, probably answer in the negative; for though it is true that in some cases, where there has been a clear omission of some material ingredient in a conviction, the court has by mandamus ordered it to be supplied; as in Re Rix, 4 D. & R. 352; Rex v. Marsh, 4 D. & R. 260; Rex v. Warneford, 5 D. & R. 489; Rex v. Allen, 5 D. & R. 490; yet this has been done after the order or conviction had been returned upon a certiorari; and it either clearly appeared, or was shown by affidavit, to the court, that the whole or some material portions of the evidence had been omitted; (see the observations of the court on these cases in Rex v. Wilson, 1 Ad. & Ell. 627;) and the mandamus went not to compel the court below to insert a particular thing, or raise a particular question, upon their return, but merely to oblige them to set out an integral part of the case, which must have existed and had been omitted. I say must have existed, because in Rex v. Wilson, where evidence might or might not have been acted on, the court would not send the mandamus.