11 & 12 Vict. c. 43. Negativing exception, &c. in the act. Defendant and his wife competent witnesses. Application of penalties. 11 & 12 Vict. c. 43, s. 31. (f) The previous enactment on the subject of this subsection was 11 & 12 Vict. c. 43, s. 14, set out in note (d), ante, p. 140 (Chap VIII.). It should be observed that it has not been the practice hitherto to negative in the information any exception, exemption, proviso, excuse, or qualification, &c., when it is not contained in the enacting clause, although at common law every exemption, excuse, or qualification which accompanies the description of the offence in the enacting clause must be distinctly and positively negatived (Oke's "Synopsis," 11th ed., vol. i., p. 133). The 11 & 12 Vict. c. 43, s. 14, did not render this the less necessary; and now the subsection 4 renders it unnecessary to specify or negative it in any case, but provides that should it be done, no proof in relation to the matters shall be required from the informant. As we have stated (ante, p. 141), the effect of the enactments and the decisions is to throw the burden of proof of such matters on the defendant. (g) This is the second instance in which a defendant in a "criminal proceeding," or the wife of such defendant, is competent to give evidence, they having been excepted by the 14 & 15 Vict. c. 99, s. 3, and 16 & 17 Vict. c. 83, s. 2. Vide cases of Att.Gen. v. Radloff, 23 L. J. (N. S.) Exch. 240; 23 L. T., N. S. 191; Cattrell v. Ireson, 27 L. J. (N. S.) M. C. 167; 31 Law T. 80; Parker v. Green, 31 L. J. (N. S.) M. C. 133; 2 B. & S. 299; 9 Cox's C. C. 169; Oke's "Synopsis," 11th ed., vol. i., pp. 71-74. Under the Master and Servant Act, 1867 (30 & 31 Vict. c. 141), s. 16, they are also competent witnesses for the purposes of that act when defendants, and one offence in it, under sect. 14, is clearly a criminal proceeding. The object of the clause in the text (which, although it is not placed as it should be in a distinct subsection, applies to the act generally) is not merely to punish the guilty; but it is also designed for the protection of the innocent; and inasmuch as in the majority of cases the only witnesses offered to prove the case against a defendant, when he is a licensed person, would be a constable, it was necessary that the defendant should have the opportunity of offering his evidence against that of the constable. The defendant, even a person charged with drunkenness, and his wife may be summoned on the part of the informant, they being placed on the same footing as other witnesses. (h) As to seizures and forfeitures under search warrants, see 37 & 38 Vict. c. 94, s. 16, ante, pp. 178, 179. The application of penalties recovered, there being no provision thereon in the 35 & 36 Vict. c. 94 (except as to a portion in sect. 66, infra), will be regulated by 11 & 12 Vict. c. 43, s. 31, under which they must be paid to the treasurer of the county or borough. By sect. 66, "Any part not exceeding a moiety of any penalty recovered under this act may, if the court shall so direct, be paid 35 & 36 Vict. to the superannuation fund of the police establishment within whose jurisdiction the offence in respect of which such penalties are imposed shall have occurred.” Molety may be awarded to police superannua tion fund. c. 94, s. 66. Revenue officer suing (i) These penalties, it is presumed, are to be proceeded for in for penalties. manner provided by this section; but when recovered are to be applied as excise penalties are applied. See application in 35 & 36 Vict. Chap. XV., post. c. 94. (j) This subsection was necessary, as there is no provision Costs recoin the 11 & 12 Vict. c. 43, as supposed by many writers, for the vered separecovery of costs alone (except upon the dismissal of an infor- rately. mation or complaint under sects. 18 and 26 of that act, and where absolute imprisonment for an offence was adjudged), which would have enabled the costs upon an opposition to the confirmation of the grant of a new licence under sect. 43 (ante, p. 97, Chap. III.), or the costs of a valuation of premises for the purposes of a licence under sect. 47 (ante, p. 46, Chap. II.), to be recovered. The sum ordered for costs will now be recovered by distress, and in default of distress or payment the person may be imprisoned for not exceeding one month, unless sooner paid, with the costs of conveyance to prison (11 & 12 Vict. c. 43, s. 26). Practice. Under this heading we give a summary of the leading points Practice. of practice in the 11 & 12 Vict. c. 43, and other acts upon summary proceedings before justices. 66 The information must be laid within six calendar months after the offence committed (11 & 12 Vict. c. 43, s. 11). It may be laid by any one, or by the inland revenue officer, and the informant may do so in person, or by his counsel or attorney, or other person authorized in that behalf" (s. 10). It may be laid without oath (except where a warrant is issued in the first instance, when it is to be on oath) (ss. 2, 10). It may be verbal; but if on oath it ought to be reduced into writing. It must be for one offence only (s. 10). See subs. 3 and note (e) thereto as to describing offence. One justice can receive an information, where two required to convict (s. 29). Time for laying information, and by whom. Process to defendants; issue to A summons or warrant may be issued to the defendant in the first instance; if a warrant, the information must be on oath (ss. 1,2). The summons may require the licensed person to produce his licence, as authorized by sect. 64, ante, p. 180 (Chap. IX.), and sect. 55, subs. 1, ante, p. 193 (Chap. X.), by these words requiring production of being placed in the margin or at the foot :-"Take notice, you licence. 66 are hereby required to produce and deliver before or on the “hearing of this summons to Mr. J. C., the clerk to the jus"tices, the licence under which you carry on your business ." Or a separate notice may be given. 66 as a summons, &c The summons is to be served by a constable or other person to Service of whom it is delivered, either personally or at his last or most usual place of abode (s. 1). 11 & 12 Vict. c. 43. Remanding case. Summonses to witnesses. Hearing of charges; -costs; -witnesses; -proof of exception, &c.; -evidence of sale, con If summons disobeyed, a warrant can be granted upon an information on oath (s. 2). Backing of warrants (11 & 12 Vict. c. 42, s. 11; 11 & 12 Vict. c. 43, s. 3). See the various provisions for remanding to gaol defendants apprehended, or bailing them before or during the hearing of a case, on account of variances between the information and evidence, where complainant not in attendance, and on adjournments generally. Oke's "Synopsis," 11th ed., vol. i., pp. 142–144. Summonses may be issued to witnesses for the informant (11 & 12 Vict. c. 43, s. 7), and, in practice, to those required by the defendant. The defendant and his wife may also now be summoned on the part of the informant (see subs. 4, supra, and note (g) thereto). See subs. 1 and notes (b) and (c) thereto. Two justices, at least, must hear the cases generally, and at the place of holding petty sessions, and it is not necessary that either of them should have taken the information (s. 29). The hearing must be in open court, where either party may appear by counsel or attorney (11 & 12 Vict. c. 43, s. 12); and it may be ex parte on proof of service of summons (s. 13); or if the informant do not appear, or the case is not proved, the information may be dismissed with costs to be paid by him (ss. 14, 18), recovered as in note (j), supra (s. 26). Costs may be ordered to be paid by defendant in all cases (s. 18), and where absolute imprisonment adjudged the costs are recovered separately (s. 19). The informant is a competent witness (s. 15), and so now the defendant and his wife (subs. 4, supra, and note (g) thereto). The proof of any exception, &c. to the offence is on the defendant. See subs. 4, supra, and note (ƒ) thereto. As to evidence of sale, &c. of intoxicating liquor, sec s. 62, victions, &c.; note (a), ante, p. 157. Evidence from Register of Licences of records of convictions, disqualifications, of forfeitures, &c. and from indorsements on licences, see sect. 58, ante, p. 131, note (b). -proof of previous conviction; If proof of a previous conviction which is not recorded on a licence, as required by the 35 & 36 Vict. c. 94, is necessary,, the conviction should be drawn up in proper form, according to 11 & 12 Vict. c. 43, s. 17, and the original or an examined copy of it, certified by the clerk to the justices (or the clerk of the peace, if it has been returned to the quarter sessions), must be produced to the justices, and evidence given of the identity of the defendant, as provided by the Prevention of Crimes Act, 1871, c. 43. 34 & 35 Vict. c. 112, s. 18 (Oke's “Synopsis,” 11th ed., vol. i., 11 & 12 Vict. pp. 165, 166). A declaration of the Court that a record of the offence is to be made on a licence is to be deemed part of the conviction or order of the Court, 37 & 38 Vict. c. 49, s. 13, ante, p. 193. Powers of adjourning cases are given by ss. 13, 16. Consecutive terms of imprisonment may be ordered on conviction for more than one offence (s. 25). -adjourning cases; -consecutive imprisonment. Mitigation of c. 49, s. 12. The sixty-seventh section of the principal act is hereby repealed, and in lieu thereof be it enacted, penalties. that where any person holding a licence under this 37 & 38 Vict. or the principal act is convicted of any offence against this or the principal act, or against any of the acts recited or mentioned therein, the court may not, except in the case of a first offence, reduce the penalty to less than twenty-shillings, nor shall the penalty, whether of excise or police, be reduced in any case to less than the minimum authorized by any other act. cision. Any one justice of the same jurisdiction as the county justices Enforcing demay enforce the decision by distress warrant or otherwise (s. 29). See the manner of doing so in note (d), ante, p. 213. For the application of penalties recovered otherwise than by Application an inland revenue officer, see subs. 5 and note (h) thereto. of penalties, &c. &c. not to be By 35 & 36 Vict. c. 94, s. 54, "no conviction or Conviction, order made in pursuance of this act, originally or on quashed for or removed want of form, by certiorari. appeal, relative to any offence, penalty, forfeiture, or summary order, shall be quashed for want of form, or, 35 & 36 Vict. if made by a court of summary jurisdiction, be removed c. 94, s. 54. by certiorari or otherwise, either at the instance of the crown (a) or of any private party, into any superior court. Moreover, no warrant of commitment in any such matter shall be held void by reason of any defect therein, provided that there is a valid conviction to maintain such warrant, and it is alleged in the warrant that the party has been convicted." (a) This is an entirely new enactment. L Previous acts as to appeals. Appeal to superior court of law. 20 & 21 Vict. c. 43. (2) Appeal against a Conviction or Order. The Alehouse Act (9 Geo. 4, c. 61, s. 27) (repealed as to this subject), allowed an appeal in all cases, the Beerhouse Act (1 Will. 4, c. 64, s. 16), in cases of a third conviction only, and the Refreshment Houses Act (28 Vict. c. 27, s. 34), in the case of a second or third offence, against a summary conviction. These have been repealed, the first as regards such convictions, and the others wholly. Besides the appeal to the quarter sessions given by on a question 35 & 36 Vict. c. 94, s. 52, infra, there is an appeal allowed to either party by the 20 & 21 Vict. c. 43, who is dissatisfied with the justices' decision, of dismissal or conviction, as being erroneous in point of law, to a superior court for their opinion, the application to the justices to state a case being made either at the time, or within three days after the decision. See statutes and cases in Oke's "Synopsis," 11th ed., vol. i., pp. 217-226; and Form No. 51, post, p. 222. 35 & 36 Vict. c. 94. Appeal to quarter ses- or convic- -notice of appeal; Ib. By 35 & 36 Vict. c. 94, s. 52, "if any person feels aggrieved by any order or conviction made by a court of summary jurisdiction (a), the person so aggrieved may appeal therefrom, subject to the conditions and regulations following: (1.) The appeal shall be made to the next court of |