sions (b) will apply only to those cases which fall within the operation of the Petty Sessions Act. Upon informations and complaints, therefore, positively excepted out of that statute, or not falling within its scope, the long established practice of the superior courts ought to prevail, which practice is similar to that prescribed by the above statute, with this addition, that if the defendant shall call witnesses or give other evidence, the prosecutor or complainant has a general right of reply; if he be in a situation to rebut the evidence adduced by the defendant by additional evidence of his own, he may at once adduce it as provided by the statute, whereupon the defendant may again address the bench upon such evidence, and the plaintiff has a general reply upon the whole case (c). cases. Revenue and excise cases.] There are some particular provisions given by statute peculiar to the hearing of revenue and excise It is provided by the 15 & 16 Vic. c. 61, s. 3, that officers of the Inland Revenue, or persons employed by the Commissioners of Inland Revenue, or their solicitor, may prosecute, conduct, or defend any complaint, information, or other proceeding before any justice or justices of the United Kingdom, relating to any duty, matter, or thing under the care and management of the Commissioners. Doubts having arisen whether a proceeding for a penalty on a breach of the revenue laws was a "criminal proceeding," so as to render the defendant an inadmissible witness (d), it was enacted that "the several acts which declare and make competent and compellable a defendant to give evidence. in any suit or proceeding to which he may be a party, shall not be deemed to extend or apply to defendants in any suit or proceeding instituted under any act relating to the Customs" (e), but no notice is taken of parties who are sued for infringing the excise laws. The question, therefore, with respect to these offenders, is still open for discussion (ƒ). Under 7 & 8 Geo. IV. c. 53 (g), the justices are to give judgment notwithstanding any defect of (b) Ib. (c) See Saunders' Prac. Mag. 56. (d) Attorney-General v. Radloff, 10 Ex. R. 84. (e) 20 & 21 Vic. c. 62, s. 14; see ante, p. 76. (1) See 2 Tay. Ev. 1098, 3rd ed. (g) Sec. 7, Excise. form that may appear in any information, or in any proceeding relating thereto. Chairman no casting vote.] In conclusion, it may be stated that in the event of the presiding magistrates being equally divided in opinion, it will be competent to them to adjourn the case to some other day, and call in the assistance of some other justice and rehear the case, as the chairman has no casting vote (h). CHAPTER XVI. ON CONVICTIONS. THE power of a justice of the peace to convict an offender in a summary way without a trial by jury is in restraint of the common law, and in abundance of instances a tacit repeal of that famous clause in the Great Charter, that a man shall be tried by his equals, which also was the common law of the land long before the Great Charter, even from time immemorial, beyond the date of histories and record. Therefore, generally, nothing shall be presumed in favour of this branch of the office of the justice of the peace. For which reason, where this special power is given to a justice of the peace by act of Parliament, it must appear that he hath strictly pursued it; otherwise the common law will break in upon him and level all his proceedings. So that where a trial by jury is dispensed withal, yet he must proceed, nevertheless, according to the course of the common law in trials by juries, and consider himself only as constituted in the place both of judge and jury (a). Summary of a conviction.] It is necessary that there be an information or charge against a person; then he must be summoned or have notice of such charge, and have an opportunity to make his defence; and the evidence against him must be such as the common law approves of, unless the statute specially directeth otherwise; then, if the person be found guilty, there (h) See ante, p. 33. (a) 1 Burns, J. 958. must be a conviction, judgment, and execution, all according to the course of the common law, directed and influenced by special authority given by statute; and in conclusion there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstances, so as if he shall be called to account for the same by a superior court, it may appear that he hath conformed to the law, and not exceeded the bounds prescribed to his jurisdiction (b). How conviction to be made.] In all cases of summary jurisdiction, the magistrates, after having heard the evidence, shall either make such order as they shall be authorized to make, or shall dismiss the case; and one of the justices then present shall enter or cause the clerk to enter the particulars of the case, and the substance of the decision, in a book to be kept for that purpose, to be called the "Order Book ;" and shall, in case of a dismissal, state whether the same is upon the merits, or without prejudice to a further complaint (c). This entry, when one of the justices present has signed his name to it, shall be deemed to all intents and purposes a conviction or order, as the case may be (d), Distinction between orders and convictions.] By the Petty Sessions Act (f), the word order includes conviction. That act uses the word order instead of conviction (g) in matters criminal and civil. It is not easy to fix a rule distinguishing in the abstract between what things are the subject of orders and what of convictions (h). It has been stated by Mr. Justice Williams, in the case of the Queen against the Justices of Radnorshire (¿), (b) 1 Burns, J. 958. (c) 14 & 15 Vic. c. 93,, s. 21. (d) Id. An order becomes such at and from the moment when it is signed by the justice, R. v. Flintshire Js., Bittlestone & Symons, R. 460; R. v. Cheshire Js., 5 Ad. & Ell. 438. It is competent for the party disputing such order, to shew that it was in fact signed at a period different from the date apparent upon its face; R. v. Flintshire Js., sup. Where a false order has been made on the records of the court of sessions, the erasure of it can be compelled by mandamus, provided it appears that it is essential for the (f) 14 & 15 Vic. c. 93, s. 44. (h) Paley Conv. 127. (i) 9 Dowl. 98; see further upon this subject, Paley Conv. 132; Omerod v. Chadwick, 16 M. & W. 382; R. v. Inhabitants of Stainforth, 11 Q. B. 66; R. v. Preston, 12 id. 816; but see R. v. Pain, 3 D. & R. M. C. 552, where Bailey, J. said that there is an acknowledged distinction between an order and a conviction. that it may be questioned whether any intelligible distinction exists at all; but the Petty Sessions Act declares that in summary proceedings the decision of the justices may be termed their "order," whether the same shall be a conviction or otherwise (), and the Justices' Protection Act (k) declares that no action shall be brought against any magistrate for any act done by him wherein he shall not have had jurisdiction, unless the conviction or order be first quashed. Mr. Paley remarks (1) that the real distinction may be between interlocutory orders, e. g. for the payment of money, which are enforced, in case of disobedience, by summons, inquiry, conviction, and warrants, and convictions immediately interfering with rights secured by the general law of the land, from which they materially and obviously differ (m). However it should be observed that where the distinction exists between convictions and orders the court is more strict in construing the former than the latter (n), and an order must be drawn up before it is acted upon, but a conviction may be drawn up after it has been acted upon (o). There is this further distinction, that an order of justices, bad in part, may be enforced as to the good part, provided that on the face of the order the two parts are clearly separable; and it is not necessary in such a case to quash the bad part of the order before enforcing the residue (p); whereas a conviction is an entire judgment and indivisible; if any material part be faulty, it vitiates the whole (g). As the Petty Sessions Act, in regulating the decision of justices in summary proceedings of all kinds, uses the term order for conviction, the following observa (j) Sec. 37. (k) 12 Vic. c. 16, ss. 2, 3. (1) See Paley Conv. 132, n. 4th ed. (m) See also R. v. Preston, 12 Q. B. 816; R. v. Stainforth, 11 Q. B. 66. (n) See Lindsay v. Leigh, 11 Q.B. 465; Paley Conv. 127. (0) R. v. Radnorshire Js., 9 Dowl. 93; Paley Conv. 128; see ante, p. 13, for the position that if an order is discovered to be illegal the magistrate need not vouch it by his signature. An order cannot be considered as made until it has been reduced into writing, and signed by the justice, R. v. Flintshire Js., 3 D. & L. 537. (p) R. v. Green, 2 Prac. R. 130; S. C. 20, L. J. 168 M. C.; R. v. Stoke Bliss, 6 Q.B. 158; R. v. Robinson, 17 Q. B. 466. (7) R. v. Catherall, 2 Str. 900; 1 T. R. 249; R. v. Palchett, 5 East, 339. By consent, however, it seems that a conviction may be set aside as to part of the judgment, R. v. Hale, Cowp. 728. tions are applicable to convictions unless the difference be specially pointed out. Conviction or order made out of petty sessions.] If any justice shall make any conviction or order out of petty sessions (r) he shall enter the same in the order-book, or shall enter the substance of the decision in the form given by the Petty Sessions Act, and shall forthwith, or at furthest before the next court day, deliver or forward such certificate to the clerk of the petty sessions district, who shall enter the same in the proper orderbook, (with a special note that he has done so), and shall submit such entry for signature to the justice or one of the justices by whom the order shall have been made, upon the next day of his attendance; but in case such justice shall not sign the same, the clerk shall make a special entry to that effect in the order-book, opposite to such case, and shall preserve the original certificate as a record of the proceeding (s). Return of cases out of petty sessions.] The sub-inspector of constabulary of the district shall make a return to the justices at each petty sessions of the particulars of any case of summary jurisdiction, in which any justice of such petty sessions shall have made any order or issued any warrant out of petty sessions, and in which any head or other constable of such district shall have been engaged, since the next preceding petty sessions (t). Statutable convictions.] It is provided by the Petty Sessions Act that it shall be lawful for the Lord Lieutenant from time to time to extend the form of the order-book (u) under which power the form in the schedule to that act was never issued; but in pursuance of the above provision another was issued in substitution, and which is now in force. This order-book contains the general form of convictions or orders to be used by magistrates, with full directions for filling up their essential parts; thus all difficulty of a technical character is removed. Excise.] There are no general forms given for convictions in the statutes relating to the collection and management of the Inland Revenue. All proceedings for the recovery of penalties (r) See ante, p. 32. (t) Id. (u) Id. s. 36. |