of the summons, the justices cannot proceed in his absence (r), and the fact of such summons is indispensably necessary to be stated in the conviction (s), though in what precise terms has been a subject of controversy (t). It is now, however, held sufficient to state that the party was "duly summoned," without further particularizing the circumstances; for the court above will always suppose a magistrate has executed his authority regularly, where nothing to the contrary appears (u). If, however, it be thought necessary to set out the summons, it must, on the face of it, be in all respects regular, or the conviction will be quashed (x); the days of making the complaint, and of issuing the summons to appear at a certain time and place (y), and the authority to summons must appear to have been correctly stated, as well as the proof of personal service of the summons on the defendant, and also that sufficient time was allowed for defence (z).

3rd. Appearance or Non-appearance of Defendant.]-It must next be stated, that the defendant appeared, or did not appear, to the sum mons, as the fact was. If the appearance be regular, and subsequent to the information, it removes all objection to irregularity in the summons, or to want of stating him to have been summoned (a); at least, if it is stated that he produced no evidence and did not require further time to make his defence; and if he waive the latter point at the time of hearing, he cannot afterwards take advantage of that particular objection (b).

It is necessary to state before whom the defendant appeared in consequence of the summons, so as to show the authority to convict ; and it was formerly considered doubtful whether the hearing of the defence, and the adjudication, must not be by the same justice who received the information: but the uniform practice of many years was to the contrary (c). And now, by 3 G. IV. c. 23, s. 2, in all cases

R. v. Thompson, 2 T. R. 23. Semb. these latter facts need not be stated in the conviction. (See note (u)).

(x) R. v. Venables, 2 Ld. Raym. 1405.

(y) If place is not mentioned, it will be intended to be that where the infor mation was laid, R. v. Swallow, 8 T. R. 284.

(2) R. v. Mallison, 2 Burr. 679; Paley, 3rd ed. 135, 137; and see per Holt, C. J., R. v. Dyer, 1 Salk. 181. (a) Cases cited, Paley, 3rd ed. 138. (b) R. v. Stone, 1 East's R. 639. (c) Nares on Convictions, 12.

where two or more justices, deputy lieutenants, or others, are authorized and required to "hear and determine" any complaint, one such justice, &c. shall be competent to receive the original information or complaint, and to issue the summons or warrant requiring the parties to appear before two or more justices, &c. as the case may require; and after examination upon oath into the merits of the said complaint, and adjudication thereupon by any such two justices, &c. being made, all and every the subsequent proceedings to enforce obedience thereto or otherwise, whether respecting the penalty, fine, imprisonment, costs, or other matter or thing, now or to be hereafter enacted, may be enforced by either of the said justices, &c., or any other justice (c), &c., for the same county, riding, or place, in such and the like manner as if done by the same two justices, &c. who so heard and adjudged the said complaint; and where the original complaint or information shall be made to any justice or justices, &c. 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.

If the party do not appear, the justice or justices, after proof of summons duly served, may proceed to judgment in his absence (d), and must state all these facts in their proper order in the conviction (e); but it is not generally necessary (unless such necessity be expressed in, or logically to be inferred from the words of the statute on which the conviction is founded,) that the defendant should appear in person; for he may appear by his attorney or counsel (ƒ); and if he does so, it must be so stated in the conviction, for otherwise the record would not be a true representation of the facts as they actually occurred.

4th. Confession or Defence.]-The next matter to be stated in the conviction is either the confession, or denial of and plea to the charge, with the proof exhibited to establish the latter. The confession of the party charged with an offence, appears, ex vi termini, to be the most decisive proof that can be exhibited; and it is so esteemed in law, if it "agrees with the charge," that is to say, admits the facts as charged; for whether such facts amount to the offence inferred as a consequence from those facts, is a mere question of law: and the defendant does not,

(c) But see exception to this act, Jones v. Gurdon, 2 Q. B. R. 600, in case of proceeding on 52 G. III. c. 93, sched. L. rule 12, 13, for killing game without a certificate. See Stradling's case, Plowd. 206, cited Dalton,

ch. 6.

(d) Paley, 3rd ed. 36.

(e) R. v. Simpson, 1 Stra. 44; Paley,

3rd ed. 38.

(f) S. C. 1 Stra. 46; 6 & 7 W. IV. c. 114, s. 2. See ante, p. 13.

by a confession of the mere facts, admit the legal effects of them, or compromise his right of appealing on any question of legal interpretation, or of erroneous application of the facts confessed to the information exhibited. Thus, where one was informed against, under 9 & 10 W. III. c. 27, then in force, for selling silk handkerchiefs without a hawker's license, and confessed the selling, &c. as laid in the information, but afterwards appealed against the conviction, insisting on certain words in the act, within which his manner of selling did not come, the conviction was quashed (g). These positions have so long received the sanction of decided cases, that it is needless to urge them further (h). It is, however, right to notice, that so decisive is the effect of confession, that when a statute only gives a justice authority to convict on the testimony of "one or more witness or witnesses," the interpretation is, that the confession of the defendant is equivalent to the evidence of a witness, and sufficient to satisfy such words of the statute (i) ; that is, if it not only "agrees with the charge," but contains an admission of such specific facts as amount to the complete offence complained of (k).

And as the confession supplies the want of evidence, so it cures any objection to the manner of taking it; as, that it was not taken in defendant's presence, or that improper evidence was admitted (7). But it will not extend or help out the description of the offence as laid in the conviction (m); or avail, if the fact confessed be penal only under certain circumstances, c. g. want of consent of owner of fishery, which are omitted in the charge (n). The confession then makes part of the conviction.

5th. Evidence to Substantiate the Charge, and Statement of it in the Conviction.]-If the defendant appears, but denies the charge (or, as has been before observed, neglects to appear), the next step is to substantiate the information by testimony. Since 7 & 8 Vict. c. 85, (ante, p. 532), has abolished objections to competency on the ground of interest, it is not clear that the conviction need describe the name of each witness, which was formerly held necessary (at least in cases where

(g) R. v. Little, 1 Burr. R. 609. See an exact copy of the conviction in this case, Paley on Conv. 3rd ed. 97.

(h) See 3 Burr. R. 1475; 4 id. 2279; R. v. Hall, 1 T. R. 320.

(i) R. v. Gage, 1 Stra. 546; Paley, 3rd ed. 41, 140.

(*) Paley, 3rd ed. 97, 140.

(1) R. v. Clarke, Cowp. 35; R. v. Hall, 1 T. R. 320.

(m) R. v. Smith, 3 Burr. 1475.

(n) R. v. Corden, 4 Burr. 2279, 2282. See R. v. Daman, 2 B. & Ald. 378; and Wickes v. Clutterbuck, 2 Bing. 10; 9 B. Moore, 63.

the particular act proceeded on gave any part of the penalty to the informer), in order to show that the defendant was not convicted on the testimony of the informer interested to procure a conviction (o).

Evidence should be stated to be given on Oath in the Defendant's Presence.] The evidence should be stated to have been given on oath (p), or on affirmation if by a quaker, &c. (q), and in the presence of the defendant (r), that it may appear he has had the opportunity of crossexamining (s); but if it be not so stated, yet if enough appear upon the conviction to show that the witness was examined upon oath in the presence of the defendant, the conviction will be supported (t).

Thus, if a defendant appear and plead, and it is stated that the evidence was given on the same day, it will be intended that the evidence was given in the defendant's presence, even though the conviction recite the information at K., the defendant's appearance without saying where, and that the evidence was given at another place H. (u).

And where, on a conviction, the information was stated to have been laid on the 29th of May, 1805, and that the defendant appeared on the 4th of June (without mentioning the year), and it concluded by stating the conviction as signed and sealed on this 4th of June, 1805, it was held that the proceedings appeared to have been all one continuing transaction, from the appearance of the defendant, after the summons, to the close of the conviction; and that it therefore appeared that the evidence was given in the defendant's presence; as his departure, pending the continuance of the transaction, could not be presumed (x). But the evidence will not be thus presumed to have been given in the defendant's presence, where the proceedings are stated to

(0) R. v. Stone, 2 Ld. Raym. 1545; Paley, 3rd ed. 46, 142; R. v. Tilly, 1 Stra. 316; R. v. Blaney, Andr. 240; R. v. Robotham, 3 Burr. 1472. So if the witness is described of the parish to which the penalty, if above 201., is given. See 27 G. III. c. 9, s. 2. St. 32 G. III. c. 56, makes an informer a good witness in case of giving a false character of a servant. Also 6 & 7 W. IV. c. 65, s. 9, post. In no case was the informer shut out from giving testimony, unless this interest was certain and direct, Rex v. Cole, 1 Esp. R. 169: which it was not where corporal punishment was in the discretion of the judge.

(P) Whether the act requires it to be

so given or not, Reg. v. Bucks (Justices), 14 L. J. (M. C.) 45.

(9) Paley, 3rd ed. 143.

(r)_Supported, Tordoff, in re 13 L. J. (Q. B.) 145; Gray and Blaney, in re 14 L. J. (M. C.) 26; and on principle, Reg. v. Bucks (Justices), in note (p).

(8) R. v. Vipont, 2 Burr. R. 1163; discussing, R. v. Baker, Stra. 1240; R. v. Crowther, 1 T. R. 125; R. v. Barwell, 6 T. R. 75; Paley, 143, 3rd ed.; R. v. Kempson, Cowp. 241; 2 T. R. 18, 23, R. v. Thompson.

(t) R. v. Lovett, 7 T. R. 152. (u) R. v. Swallow, 8 T. R. 284. (x) R. v. Crisp, 7 East, R. 389, resolution.

3rd

have taken place in one day, if any thing appears on the face of the conviction to contradict that intendment; e. g. if it was, in fact, given in his absence (y).

But a confession of the offence, as before observed, dispenses with the necessity of stating that the evidence was given in the presence of the defendant, or that the witness was re-sworn, where that would otherwise be necessary to be done in order to the defendant's having an opportunity of cross-examining (z). If the defendant neglects to appear, that must be shown on the face of the conviction.

The Evidence must generally be Set forth at Length in the Conviction.]-As the record of the conviction ought to be an exact account of all the proceedings before the magistrate, in order to show that he has acted on sufficient grounds (a), the whole evidence given on both sides applicable to the charge must be particularly set out, so that the superior court may judge whether there is any proof which, in an action, would be left to a jury as sustaining every material part of the charge in the information, and warranting the adjudication (b). Thus it will not be sufficient to state that the said offence was fully and duly proved; for that is to state the result of the evidence only, (as may be done in orders) (c), but not the evidence itself (d). If some laxity has been reluctantly admitted in convictions under former game laws, these at most only form exceptions to an otherwise universal rule (e). The information must be kept separate from the evidence, so as to let it appear distinctly which is which (ƒ).

In these summary convictions, the opinion of the justice being substituted for that of a jury according to the common law process, the weight of the evidence on either side, if there be any essential difference, must be determined by the justice; therefore, if the whole

(y) See Paley, 3rd ed. 150. The directions in the form given by 3 G. IV. c. 23, post, are against this presumption, Paley, 3rd ed. 79.

(z) R. v. Crowther, 1 T. R. 126; R. v. Hall, id. 320. See R. v. Kiddy, 4 D. & R. 734; 2 id. Mag. C. 364. (a) See R. v. Reason, 6 T. R. 375. (6) Paley, 3rd ed. 162, 178. So in warrants of commitment, which are in effect convictions. See Gray and Blaney, in re, 14 L. J. (M. C.) 26; 1 New Sess. C. 354; Tordoff, in re, 13 L. J. (M. C.) 145.

ences between orders and convictions, Paley, 3rd ed. 131, 151.

(d) R. v. Theed, 2 Stra. 919; 2 Barnard, 16, 73; Ld. Raym. 1375. See R. v. Lovett, 7 T. R. 152; R. v. Reed, Doug. 486.

(e) R. v. Hartley, Cald. 175; R. v. Pearce, 9 East, R. 358, on 5 A. c. 14, repealed 1 & 2 W. IV. c. 32, s. 1. However, the form given by that game act dispenses with any statement of the evidence, and even with the information against, and summons and appearance of, defendant. See Paley, 3rd ed. 154. (f) R. v. Green, Cald. 391; Paley, 169.