The form of the ordinary oath on receiving an information 11 & 12 Vict. or complaint will be as follows:

c. 43.

"You swear that the contents of this your information [or 'com- Form of oath. plaint'] signed by you, are true and correct to the best of your knowledge and belief. So help you God."

The oaths of persons of different religious persuasions are given ante, p. 84, &c.

tion.

it or summons.

Sect. 1.

As to forms of informations, none of which are given in The informa11 & 12 Vict. c. 43, they will be found in Oke's "Magisterial Formulist," 6th ed. pp. 1-4. A second proviso to the 1st No objection section says," that no objection shall be taken or allowed to to be taken to "any information, complaint or summons for any alleged "defect therein in substance or in form,—or for any variance "between such information, complaint or summons, and the " evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as "hereinafter mentioned; but if any such variance shall appear On variances "to the justice or justices present and acting at such hearing hearing to be adjourned. "to be such that the party so summoned and appearing has "been thereby deceived or misled, it shall be lawful for such "justice or justices upon such terms as he or they shall think "fit, to adjourn the hearing of the case to some future day." 28 The 3rd section makes the same provision as to the warrant to apprehend;—and by the 9th section, "any variance between "such information and the evidence in support thereof, as to "the time at which such offence or act shall be alleged to have

28 Note on Sections 1 and 9-Variances.]-In Martin v. Pridgeon (28 L. J. (N. S.) M. C. 179; 33 Law T. 119) the defendant was summoned under sect. 29 of the Towns Police Clauses Act, 1847, for being drunk and riotous in a street; the drunkenness in a street was proved, but not the riotous conduct, and the magistrates convicted him of drunkenness under the 21 Jac. 1, c. 7: it was held (Lord Campbell, C. J., and Coleridge, J.), that it was not a case of variance within this section of 11 & 12 Vict. c. 43, for the variance meant is a difference between the mode of stating and the mode of proving the same thing in substance, and that this was a proof of something totally different, and the defendant's appeal was allowed, but without costs. This case is confirmed by Soden v. Cray, 7 Law T., N. S. 324, and Reg. v. Brickhall, 33 L. J. (N. S.) M. C. 156; 10 Law T., N. S. 385. In the latter case, it was held that a charge of assaulting a constable could not be treated as a common assault, being under a different statute. See also Shackell v. West, 29 L. J. (N. S.) M. C. 45; 1 Law T., N. S. 28. In Whittle v. Frankland, 31 L. J. (N. S.) M. C. 81; 5 Law T., N. S. 639, where the information differed from the evidence, the complainants being stated to be "T. B. and his partners," instead of an incorporated company by its name, it was held that the variance was cured by the second proviso of 11 & 12 Vict. c. 43, s. 1, supra.

Sect. 3.

Time of

offence.

Sect. 9.

11 & 12 Vict. c. 43.

Place of offence.

Any other variance.

Must not be so drawn as to mislead defendant.

66

"been committed, shall not be deemed material, if it be proved "that such information was in fact laid within the time limited "by law for laying the same; 29—and any variance between "such information and the evidence adduced in support thereof, as to the parish or township in which the offence or act shall "be alleged to have been committed, shall not be deemed material, provided that the offence or act be proved to have been "committed within the jurisdiction of the justice or justices by "whom such information shall be heard and determined;-and "if any such variance,—or any variance in any other respect "between such information and the evidence adduced in support thereof,-shall appear to the justice or justices present "and acting at the hearing to be such that the party charged "by such information has been thereby deceived or misled, it "shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day," and in the meantime to commit the defendant or bail him. The result of the above enactments seems to be to entirely supersede the use of the information, summons or warrant as substantial parts of the proceedings, beyond the fact of their still being required by way of authority for the justice's interference; but that the conviction entirely depends upon the case proved by the evidence, which neither recites nor even alludes to the information, summons or warrant, as in the form given by the repealed act 3 Geo. 4, c. 23. Although the strictness which was formerly required in informations, summonses, &c. will no longer be necessary, they must not, however, be so drawn as to deceive or mislead the defendant, by varying from the charge upon the evidence, and so varying the nature of the case altogether, which is not permitted (see case in Note 28, supra); for in that case the justice, being empowered to adjourn the hearing of the case to some future day, upon such terms as he shall think fit, seems to be enabled to enforce upon parties preferring charges the necessity of drawing their informations and summonses in a legal form. The cases and rules, therefore, which were decided upon informations and summonses before the passing of the 11 & 12 Vict. c. 43, may still be found serviceable as a guide in framing them at the present time, and in drawing up convictions (as the above provisions only apply to the informa

29 See Onley v. Gec, 30 L. J. (N. S.) M. C. 222; 4 Law T., N. S. 338.

c. 43.

Matter of complaint.

tion or complaint, summons and warrant), more particularly 11 & 12 Vict. as to the mode of describing the offence or matter of complaint, which if correctly stated in the information or complaint to ground the justice's jurisdiction, and thence recited or stated in the conviction and subsequent proceedings, would save much trouble and inconvenience in the preparation of the latter. We now propose to show the common requisites of an Requisites of information:

the informa

tion.

By 11 & 12 Vict. c. 43, s. 29, "in all cases of summary pro- One justice to "ceedings before a justice or justices of the peace out of ses- receive. "sions upon any information or complaint, it shall be lawful Sect. 29. "for one justice to receive such information or complaint, and

"to grant a summons or warrant thereon, and to issue his

66

summons or warrant to compel the attendance of any wit

nesses, and to do all other necessary acts and matters pre"liminary to the hearing, even in cases where by the statute "in that behalf such information or complaint must be heard "and determined by two or more justices."

It should contain the informer or complainant's name, &c. Complainant (R. v. Stone, 2 Lord Raym. 1545), -the date of preferring it and defend(Lord Raym. 1546),—the place of preferring it (Bosc. 24),

the name and style of the justice (R. v. Johnson, 1 Str. 261; R. v. Dobbin, 2 Salk. 473; R. v. Chipp, 1 T. R. 711), and the offender's name, &c. (R. v. Harrison, 8 T. R. 508; see Paley, 4th edit. p. 152).

ant's names,

&c.

sufficient in

Under the General Turnpike and Highway Acts certain Description parties may be proceeded against without describing their of defendant names, if they refuse to disclose them, and in which case a certain cases. description of their persons would be sufficient. If the statutes under which the proceedings are taken extend only to persons of a particular class, office or situation of life, the defendant should be shown to come within the description of such persons, bearing in mind the broad rule for construing statutes as laid down by Lord Tenterden, that "where general words follow "particular ones, the rule is to construe them as applicable to persons ejusdem generis" (Sandiman v. Breach, 7 B. & C. 100, upon the words "or other person whatsoever" in the act as to trading, &c. on Sunday, Kitchen v. Shaw, 6 Ad. & Ell. 729). By the 3rd section of 11 & 12 Vict. c. 43, the defendant may be named "or otherwise described" in the warrant to the constable to apprehend. Married women, if they have com- Persons liable mitted an offence without the coercion, actual or implied, of

to summary convictions:

c. 43.

Husband and

wife.

Female

11 & 12 Vict. their husbands, are equally liable to be proceeded against as other persons. 30 A husband and wife may also be jointly convicted and punished for every offence of which they have been jointly guilty. Female offenders can be convicted of any offender liable offence punishable on summary conviction as well as males. See 7 & 8 Geo. 4, c. 28, s. 14, which is both prospective and retrospective, and 13 & 14 Vict. c. 21, s. 4, which applies to all acts whatever their subject may be, and enacts, "that in "all acts words importing the masculine gender shall be "deemed and taken to include females ** unless the contrary as to gender * * * is expressly provided."

in all cases.

Infants.

Infants above seven years of age may be prosecuted for penalties in respect of any injuries committed by them, and generally for all wrongful acts of which they may be guilty; but it was doubted whether a minor is competent to enter into a contract of service. However, the Master and Servant Act, 1867, 30 & 31 Vict. c. 141, s. 2, settles that question in its definition of "employed" in favour of their power to do so, and justices have jurisdiction if the contract is not deficient in mutuality. So, too, under the Employers and Workmen Act, 1875" (38 & 39 Vict. c. 90), infants are by the 10th section included in the term "workmen" as used in the statute. But, as well observed by Mr. Davis in his excellent treatise on the Labour Laws, p. 119, "a contract cannot be enforced "against an infant unless binding on him independently of "the act;" and a contract is not binding on an infant unless he derives a benefit from it. Reg. v. Lord, 12 Q. B. 757; 17 L. J., M. C. 181. Upon the question of the liability of a minor for criminal acts, it may be observed that the same rules apply, whether the form of procedure be that of indictment or summary conviction; and the law is well established that under seven years of age no infant can be convicted of felony, the law assuming that a child under that age has not a mind sufficiently mature to judge of the quality and effect of his actions. Between that age however and fourteen, he may be liable according as he exhibits mental discretion, the presumption being still in his favour, and to be rebutted only by circumstances showing clearly that he was at the time of the com

30 Rex v. Crofts, 2 Str. 1120; Rex v. Hammond, 2 Leach, 499; Rex v. Williams, 10 Mod. 335; Reg. v. Cruse, 8 C. & P. 541; 2 Mod. C. C. 53; Paley, 4th edit. pp. 59, 60.

mitting of the offence capable of discerning between good and 11 & 12 Vict. evil. 31

c. 43.

servant or

In some cases a man may be brought within a penal statute Master liable by the acts of his agents or servants according to the maxim, for act of qui facit per alium facit per se, when the persons doing the act agent. are proved to be such agents or servants. The employment of an agent in the defendant's usual course of business is sufficient evidence in such cases, whence the magistrates may, if they think fit, presume that such an agent was authorized to do the prohibited act with which it is sought to charge the principal. In Wilson v. Stewart, 32 L. J. (N. S.) M. C. 198; 8 Law T., N. S. 277, it was decided that if the keeper of a place of public resort leaves his premises in the management of a servant, and prostitutes are suffered to meet together and remain in the house, the mere relation of master and servant neither makes nor prevents the latter from being an aider and abettor in the offence; and if the servant, in knowingly suffering the prostitutes to meet together and remain, is carrying out the master's orders, the master is guilty as principal, and the servant as aiding and abetting, and the latter may be convicted under the 11 & 12 Vict. c. 43, s. 5. In Searle v. Reynolds (14 Law T., N. S. 518), the Court of Queen's Bench held, that a master was liable for the disobedience of an order (of an inspector to disinfect premises under one of the Cattle Plague Acts) by his foreman, it being found that the master had knowledge of the order. In that case, Mellor, J., after quoting the language of Bayley, B., in Att.-Gen. v. Siddon (1 Cr. & J. 220), said, "I cannot agree as to the necessity for "the mens rea, as this is simply a penalty for breach of a "sanitary regulation." If a person does an illegal act by the direction of some other person, he is liable to be summarily convicted as well as the person directing him (Du Caux v. Powley, 28 J. P. 806). Under the Wine and Beerhouses Acts, 1869, 1870, 32 & 33 Vict. c. 27, s. 12, and 33 & 34 Vict. c. 29, s. 15, the beerhouse keeper, &c. is specially made liable for the penalties incurred by the acts of his servants. See the question of the liability of an innkeeper for the acts of his servants very fully considered in Mullins v. Collins, L. R., 9 Q. B. 292; 43 L. J., M. C. 67; 29 Law T., N. S. 838, and Bosley v. Davies, 45 L. J., M. C. 27; 33 Law T., N. S. 528.

31 See Reg. v. Lord, 17 L. J. (N. S.) M. C. 181.