manor, which the magistrate thought insufficient for the purpose, and convicted the defendant only stating in the conviction, in the language of the act of parliament, that "on,&c. the defendant did keep and use, &c." without stating the particulars of the evidence, and wholly omitting the evidence given for the defendant.-The Court, after hearing the affidavits on both sides, being of opi nion that the magistrate had not acted corruptly, and thinking that he might have been misled by the precedent in K. a. Thompson (in which the court, though they affirmed the con viction, recommended it to the magistrates, in future, to state the whole evidence upon the record), discharged the rule; expressing in strong terms, that they thought it the duty of ma. gistrates, in all cases, to state the whole of the evidence, and not merely the result of it. 7 Ter. Rep. 153. And the K. v. Clarke where the magistrates had not simply stated in the terms of the act of parliament that the defendant had kept and used a greyhound for the purpose of killing game, but had set forth the particular evidence of his having so done, namely, that the witness had seen him kill a hare with the said greyhound; and had also set forth all the evidence for and against, the court testified in strong terms their approbation of the manner in which this conviction had been drawn up, and recommended it as a precedent to be followed in future, expressing themselves so much dissatisfied with the general mode of stating the evi. dence which had been practised in these cases and followed from the old precedent in Burne *. 8 Ter. Rep. 222. And in the case of The K. v. King, aforesaid, Parker,С J. said, that walking about with intent to kill game is evidence of using the instrument for that purpose. 1 Sess. Cas. Ca. 88. So also the circumstance of hearing a gun go off, and observ. ing that it was fired by the defendant who was then walking about a piece of ground with that apparent intent, is sufficient evidence to support a conviction for keeping and using u gun with an intent to kill and destroy the game: for it is enough if there be such évidence before the magistrate as in an action would be proper to be left to a jury. The K. v. Dair, Hil. Ter. 35 Geo. 3. 6 Ter. Rep. 177. In due manner summoned.] It is an established rule, that the "defendant'ought, in point of fact to be summoned; and if the justides proceed against a person without summoning him, it would be a misdemeanor in them, for which an information would lie against them. 2 Ld. Raym. 1405. 1 Str. 630. Sus, in The K. v. Heber, on a rule to show cause why an information should not be granted against the defendant a jus tied of the peace, for convicting two persons, Hargrate and *Luncaster, for killing game, not being qualified, the complaint relation to Hargrave was, that the defendant sent his warrant It is somewhat singular that notwithstanding all these cases, and partie cularly the last, this precedent in Burn so frequently objected to shouju mot in the last edition of that work have been corrected, for him, by which he was arrested, without any previous information upon oath in relation to Lancaster, the complaint was that he happening to be present at the time Hargrave was convicted, the defendant took that opportunity of convicting him also, without giving him any previous summons by which he might prepare himself for his defence. THE COURT (the chief justice being absent) were very clear that an information ought to go against the defendant for his behaviour in relation to Lancaster, for they said, it was a most known rule of common justice, that no man ought to be convicted of an offence till he has previous notice given him of the charge, that he may be prepared to be put in his answer to it; accordingly the rule as to him, was made ab. solute. As to Hargrave, Judge Probyn thought that the rule with respect to him also, ought to be made absolute. He said, a warrant deprives a man of his liberty; and therefore a summons ought only to issue, and not a warrant, without an information upon oath... The other two judges did not think this a suffi cient cause for granting an information, and therefore the rule with respect to Hargrave, was discharged.In this case the court would not proceed to make a rule to show cause, until the convictions were removed thither by certiorari: for, they said, if there was no conviction there ought to be no information; and if there was a conviction, this ought to appear by the re cord. 2 Barnardiston 31, 77, 101. But if the defendant appears and makes defence, that will cure every defect in the summons. Thus, in The K.v. Johnson, which was a conviction on 5 Ann, for keeping a gun not being qualified; exception was taken that there was not a reasonable summons,for it was made on 5th Oct. to appear the same day,which might be impossible on account of distance, or the summons being served late, and his witnesses might not be got together on so short a warning; then it is to ap pear at the parish aforesaid, whereas there are two parishes men tioned before; so the man may have gone to one, while they were convicting him at the other.-To this it was answered, the defendant appeared at the time, and made defence; so that cures all defects in the summons. And by the court the answer is right. 1 Strange, 161. WW, of a credible witness.] The informer cannot be a witness. 2 Ld. Raymond 1545. Andr. 240. And in 2 Geo. 8. c. 19, It is recited, that in prosecutions on the act of 8 Geo. I. c. 19, in the courts at Westminster, where a part of the penalty is given to the poor of the parish, the inhabitants of such parish had been disallowed to give evidence; therefore, in that case, to remedy the same, the act gives the whole penalty to the prosecutor in order to enable the inhabitants to give evidence. * See Div. XVII, infra, But now it is provided in general by the stat. 27 Geo. 3. c. 29, that if the penalty to be recovered does not exceed 201. the parishioners of every parish shall be deemed competent witnesses for the purpose of proving the commission of any offence, within their parish, notwithstanding the penalty incurred, or any part thereof, may be given to the poor of such parish. Although the statute says nothing of confession, but only directs the justice to convict by the oath of one or more wit nesses, he may nevertheless, if the defendant confesses the charge, convict him without going into any evidence concerning the matter. This was settled in the case of The K. v. Gage, which was a conviction on 5 Ann. for using a greyhound in killing hares. Exception was taket. that the act of parliament had only given the justices jurisdiction to convict upon the oath of one or more credible witnesses, whereas this was upon his own confes sion, which he insisted the justices had no power to take; and it follows in the act, that the person so convicted shall forfeit ; which word so is relative to the former method, by oath of one or more credible witnesses-But by The Court (except Eyre) the conviction must be confirmed: the intent of mentioning the oath of one witness was only to direct the justices that they should not convict on less evidence: suppose the confession had not been before the justices, but before two witnesses, who had sworn it; that would be convicting him on the oaths of wit nesses, and yet the evidence would not be so strong as this: by the civil law, confession is esteemed the highest evidence; and in some cases, though there are an hundred witnesses, the party is tortured to confess; here the justices had a better evidence than the evidence of any single witness, and it is a monstrous thing to say, that a better sort of evidence shall not do. 1 Stra. 546. Depose and say in the presence and hearing of the said 0 0.] The evidence must be stated to have been given in the presence of the defendant, that it may appear he has had the benefit of a cross-examination. 2 Strange, 1210. 2 Burrows, 1163. Thus, in the before mentioned case of The K. v. Crowther, which was a conviction on 5 Ann. c. 14, for using a gun, after stating the information which negatived every one of the qualifi cations in 22 & 23 Car. 2, it stated, that on the same "day of at, &c. one credible witness, to wit, "ET came before me, &c. and by his deposition taken in writ "ing before me, &c. upon his oath on the holy gospel of God, "swore, and upon his oath aforesaid, affirmed, that the aforesaid "TS C, on the day of aforesaid, in →→→→, &c. "did keep and use a gun, and certain dogs, called setting-dogs, or pointers, to kill and destroy the game, and hunted them over certain grounds; part of farm in the parish afore "said, &c. and did then and there [stating the fact of shooting Vos. II. Rr "a partridge] contrary, &c. and afterwards, that is to say, on adjudges him to have forfeited 51. &c."1st Objection. The evidence was not given in the presence of the defendant: the wit. ness only affirmed his deposition to be true. By THE COURT, The first objection is good; the witness ought to have been resworn in the defendant's presence. 1 Term Rep. 125. However if enough appears upon the conviction to show that the witness was examined upon oath, in the presence of the de fendant(although it may not be expressly stated to have been so,) the court will support the conviction. 2 Stru. 1240. 3 Bur. rows, 1786. Coup.241. 2 Term Rep. 23. Thus in the above case of The K. v. Thompson, which was also a conviction on 5 Ann. c. 14, stating the information against the defendant, 8th Dec. 1786, the appearance of the defendant on the 9th, after being summoned, and the plea of not guilty; it then proceeded as follows: "Nevertheless, on the said 9th day of Dec. in the year aforesaid, at, &c. one credible witness "to wit, R T of, &c. cometh. before me the said justice, and "before me the same justice, upon his oath on the holy gos "pel of God to him then and there by me the aforesaid jus❝tice administered, deposeth and upon his oath affirmeth and "saith, that the defendant, on the 7th day of Dec. afore"said, in the year aforesaid, at, &c. [negativing the qualifica ❝tions] did keep and use a gun to kill and destroy the game, "and thereupon the said defendant, the said 9th day of Dec. in "the year aforesaid, at, &c. before me the same justice, by the " oath of one credible witness aforesaid, according to the form "of the statute aforesaid, is convicted, &c."—After the case had been argued and decided on two other points *, the court entertaining some doubt whether it sufficiently appeared that the evidence was given in the defendant's presence, desired that the matter might stand over: on the next day. Ashurst, J. See p.604, supra C C said, on looking into the cases, we find that this objection has been before made; and the court have held, that in cases circumstanced like the present, they will intend, that as the whole proceedings are stated to have passed on the same day. the evidence was given in the presence of the defendant. Buller, J. It has been decided in several cases, that there is no foundation for this objection: the first of them was The K. v. ̈Aikin, in 3 Burrows, 1785, where the conviction, as far as the evidence went, was precisely similar to the present: the court said that it may be presumed, that the witness was examined in the defendant's presence. The next case was that of The K. v. Kempson, Cowp. 241, there the same objection was made; but the whole transaction appearing to have passed before the magis trate on the same day, Aston, J. said, enough appears upon this conviction to show that the witness was examined in the presence of the defendant: it must be supposed that all that passed was at one and the same time---the conviction was affirmed. 2 Term Rep. 18. Again in the K. v. Lovett, Hil. 37 Geo. 8, The court,on the authority of the last case considered it as settled that where the evidence is given on the same day that the defendant appears, it will be intended that the evidence was given in his presence. 7. Term Rep. 152. And I do hereby adjudge, that the said 00, for the said offence, hath forfeited the sum of 51.] The penalty of 57. is given for the keeping or using dogs or engines, and not for the game destroyed; therefore, although a person kill ever so many hares in one day, he can be convicted in but one penalty for that day. This was ruled in The Q. v. Matthews, T. 10 Ann. On this conviction, exception was taken that the person was charged with so many 51. as he had killed hafes in the same day; and the court was of opinion that the offence for which the statute gave the forfeiture was the keeping dogs and engines, and not killing the hares. If a man not qualified goes a hunting, and kills never so many hares on the same day, he would forfeit but one 51. for it is but one offence, but if a man keep dogs and goes a hunting several days, and kills hares, if it was thus laid, that he such a day kept dogs and killed, and then again such a day; by laying it thus severally the offence is severed, and he shall forfeit 51. for each offence. 10 Mod 26. So in the case of Marriot v. Shaw, E. 4 Geo. 1. where the de, fendant was convicted, that upon such a day he kept and used a greyhound, to kill and destroy the game at such a place ; that on the same day he kept and used a grey-hound to kill and destroy the game at another place, and so at a third place, and killed several hares at the said several places, it was adjudged by the court, that this being all done on the same day was on |