If the person against whom such warrant is issued shall return and support the wife or children so abandoned, or give security (b) satisfactory to any two justices of the town, to the overseers of the poor of the town, that the wife or children so abandoned shall not become or thereafter be, chargeable to the town or county, then such warrant must be discharged by an order of such justices, and the property taken be restored to such party.(c)

14th. Hawkers and Pedlers.] The statute prohibits any person from peddling without a license as a hawker and pedler, obtained in the manner therein directed. Every person found travelling and trading within this state contrary to the provisions of the statute or contrary to the terms of any license that may have been granted to him as a hawker and pedler, forfeits, for each offence, the sum of twenty-five dollars, to the use of the poor of the town in which the offence is committed. And every person so trading who shall refuse to produce a license as a hawker or pedler, to any officer or citizen demanding the same, forfeits, for each offence, the sum of ten dollars, to the use of the overseer of the poor of the town. Every offender who, after notice, shall refuse or neglect to pay the above penalty, must be committed by the justice before whom the conviction is had, to the jail of the county in which the offence was committed, for the term of one month. (d)

Any citizen is authorized to apprehend and detain any person found trading as a hawker or pedler, without license, or contrary to the terms of his license, or who shall refuse to produce a license; and he may convey the offender before any justice of the peace in the town or county in which he is apprehended. (e)

It is the duty of such justice, if a sufficient license to authorize such trading be not produced to him, and the fact of trading be proved to him, either by the confession of the person so apprehended, or the oath of competent witnesses, to convict the offender(f) of such offences against the statute as shall be so confessed or proved; and to issue his warrant(g) on each conviction, directed to some constable of the county in which the conviction is had, commanding such constable to cause the sum of twenty-five dollars, with costs not to exceed five dollars, to be forthwith levied by distress and sale, at public vendue, of the goods, wares and merchandize of the offender. The monies collected on such warrant,

(b) See Append. No. 76, form of bond to be given in such cases.

(c) 1 R. S. 616, § 11.

(d) 1 R. S. 575, § 1, 576, §§ 6, 7. See Append. No. 77, form of commitment.

(e) Id. ib. § 8.

(f) See Append. No. 78, form of conviction.

(g) See form, Append. No. 79.

exclusive of the costs, are to be paid by the justice to the overseers of the poor of the town in which the offence was committed. (h)

In every case of a prosecution against any person for the recovery of a penalty given by the above sections of the statute, no costs are to be allowed to the defendant if it shall appear that before the commencement of the prosecution, he had refused to produce his license, or to disclose his name, when lawfully required. Nor in such case will the defendant be entitled to maintain any action against the person prosecuting him, or the constable, or other persons by whom he was apprehended, or the justice issuing any warrant or other process against him, or before whom he was tried, for any of their acts in so prosecuting, apprehending or trying him.

No suit or prosecution for the recovery of any of the above mentioned penalties can be maintained unless it appears that it is brought within sixty days after the commission of the offence charged.

Every person sued for putting in execution the above provisions of the statute, or doing any matter or thing pursuant thereto, may plead the general issue, and give the special matter in evidence. And if the plaintiff in any such suit does not prevail, the defendant is entitled to recover treble costs.(i)

15th. Violations of excise law.] The title of the revised statutes relating to excise and the regulation of taverns and groceries imposes various penalties for violating its provisions; which penalties may, in general, be sued for and recovered before justices of the peace. And the statute provides that whenever any conviction or judgment shall be obtained against any person licensed to sell strong or spirituous liquors or wines, for any violation of such provisions, either in a suit for a penalty or in a suit upon bond given by such person, it shall be the duty of the justice or court before whom the same is had, to transmit to the next court of general sessions of the county a statement (k) of such conviction or judgment, and of the offence for which it was obtained.()

Having thus made a brief statement of the principal cases in which justices of the peace possess a summary jurisdiction, and of the proceedings in each class of cases, so far as the same are regulated by statute, it may perhaps be useful in this place to submit some remarks respecting summary convictions in general and the several parts thereof. It will have been observed that the statute, in many cases, is silent as respects the particular form or manner of proceeding by justices in the execution

(h) 1 R. S. 576, § 9.

(i) Id. ib. §§ 10, 11, 12.

(k) See Append. No. 80, form of this statement.

(1) 1 R. S. 677. Id. 681, § 22.

of their summary powers. To such cases the following remarks are intended to apply. Wherever the statute contains any express direction, however, on the subject, it will of course control whatever may seem to conflict with it here.

As the summary power of conviction given to justices of the peace is in restraint of the common law, the rule adopted by the courts, in construing these convictions, has generally been that nothing shall be presumed in favor of the substance or contents of the conviction; but that the intendment, in this respect, will be against it. Consequently, where this special power is given to a magistrate by any act of the legislature, it must appear that he has strictly pursued it. Otherwise the common law will break in upon him and level all his proceedings. So that though a trial by jury is in reality dispensed with, yet he must proceed 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.(m)

A conviction, to be good, must be founded on several preliminary proceedings. 1. There must be a complaint or charge, against the person. 2. He must be brought before the magistrate, by warrant or otherwise, or have notice of the charge in order that he may have an opportunity of making his defence. 3. The evidence against him must be such as the common law approves of, unless the statute specially directs otherwise. 4. If the person is found guilty there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by statute. 5. There must be a record of the whole proceedings, wherein the justice must accurately set forth all the previous proceedings.(n)

1st. Of the complaint.] Where the complaint or information is required by statute to be in writing, that form must be observed; and this is usually directed where power is given to apprehend the offender in the first instance. But unless expressly so directed it does not seem necessary that it should be in writing. It is always useful, however, in practice, for careful magistrates to require a complaint in writing, before they will issue a warrant to arrest the offender. And it is said the only cases in which this document is properly dispensed with, are those in which justices are authorized to convict upon their own view.(1) It is not requisite that the complaint should be upon oath if not enjoined by the letter of the statute.(0)

45.

Though a conviction upon a complaint instanter may be good, yet it

(m) 1 Burn's J. 729. Paley on Conv.

(n) 1'Dea. Cr. Dig. 302. 1 Burn's J. 729. Paley, ch. 2.

(1) Stone's Prac. Petty Sess. 28. Paley, 15, 60.

(0) Bosc. on Pen. Stat. 16. Paley on Conv. 15, 60.

ought to be declared to be on such complaint, and not as grounded on one which is not proved.(p)

The place where the complaint is stated to be received is necessary to be mentioned, in order to show that the magistrate was, at the time, acting within his jurisdiction.(q)

The complaint must also set forth the day and year on which it is exhibited; as well that it may appear to be subsequent to the offence, and prior to all the other proceedings, as in order to ascertain that the prosecution is within the time limited by the particular statute on which it is founded.(r)

The name and style of the magistrate before whom the complaint is lodged must be set forth; and this is done by addressing the complaint to him; from which it must appear that he is a magistrate of the county where the offence is stated to have been committed, in order that his jurisdiction may be shown on the face of the proceedings. (s) It is not sufficient, therefore, to describe him as a justice in the county, without saying of and for the county.(t)

The complaint, being the substratum of the magistrate's jurisdiction, and in the nature of an indictment, must contain a complete statement of the offence; for the evidence subsequently stated in the conviction can only support the original charge, but can by no means extend or supply what is wanting in the complaint.(u) The complaint must also contain a direct and positive charge against the defendant, and not merely facts amounting to a presumption of guilt, however sufficient such facts may be as prima facie evidence against him.(v)

Where the knowledge of the party is mentioned by the statute as an ingredient of the offence, nothing short of a direct averment to that effect is sufficient; unless, indeed, equivalent words are used. But the words unlawfully, fraudulently, and against the form of the statute, are not equivalent to knowingly.(w)

And the offence must, in all other respects, be brought within the terms of the statute. (x) And no intendment is admitted to help out a description defective for want of an essential averment.(y) But the charge in the complaint need not be expressed in the precise words of the act. It is sufficient if the words used in the one are synonymous

with the words contained in the other. Thus a complaint under a statute prohibiting "combinations to obtain an advance of wages," stating that the defendant attended a meeting for carrying on a combination of journeymen "for the purpose of obtaining an advance of wages," was held to be correct.(z)

The name of the informer should be stated in all cases, that the person convicted may know who is his accuser. And it is indispensable where any part of the penalty is given by the statute to the informer, in order that the conviction may appear to be founded upon other evidence than that of the informer himself, who is, in such cases, an incompetent witness. (a) So, for the like reason, where a statute directs that certain things shall be forfeited to the person seizing the same, the complaint must show that the person to whom the thing is adjudged, is the person who seized it; and it is not enough that this is stated in the adjudication. (b) But it is not necessary, (as in penal actions,) to allege that the informer sues as well for himself as for the other parties. (c)

In cases where the penalty is given to the owner of property injured, by way of compensation, it is advisable to mention the name of the owner as joining in the complaint; for his dissent to the committing of the offence, ought to appear, by some means, on the face of the conviction.(d)

It is no objection that the offender appears to be a feme covert, although the offence charged sounds in contract—as in the case of a conviction under the statute 9 Geo. 2, ch. 23, for selling gin; for a married woman may be convicted on a penal statute, without joining her husband.(e)

The complaint should also state the time of committing the offence, that the magistrate may appear to have proceeded in the first instance upon a legal charge.(f) But the precise day need not be named, if the offence be alleged to have been committed between such a day and such a day; provided the first of the days be within the time limited by the statute.(g) It is more regular, however, to fix the charge to a certain day, when it can be done. (h) Where a complaint appeared to be made on the 29th of May, 1805, and the offence was charged to have been committed "within three months, to wit, on the 12th May now last past,'

(z) 5 Barn. & Ald. 527.

(a) 2 Ld. Raym. 1545. Eagle's Mag.

Pock. Comp. 69.

(b) 5 M. & S. 133.

(c) 7 T. R. 152.

(d) 2 Burr. 2279.

(e) 2 Str. 1120. Hob. 96. 11 Co. 61. (f) 1 Salk. 369. 2 Stra. 900. Paley on Conv. 61. 14 East, 272.

(g) 2 Hawk. ch. 25, § 82. 1 Salk. 378. 1 Ld. Raym. 581. 5 Mod. 446. (h) Paley on Conv. 63.