might declare in a different form of action than that in which he declared in the court below. He cited Pra. Reg. 221. Shepherd, contra. The defendants were impleaded in the court below in an action of debt, and now the plaintiffs declare in case. Surely the plaintiffs ought to have proceeded in the same form of action. How can we tell but that it is not for some other cause the plaintiffs declare. We are taken by surprise. SED PER CURIAM. The plaintiffs may declare as they please; they cannot recover for more than what they would have recovered in the court below. Judgment for plaintiffs, REX against Sadler. 1787. BOWERBANK and another against WALKER and another. 1787. Hilary Term. fence to have stating an ofbeen committed tive, is bad. under the in the alterna A conviction THE defendant in this case was convicted under A conviction, the 3d section of the 5 Geo. III. c. 14, in a penalty of 51. for an offence against the provisions of this section. The conviction, in setting forth the information, proceeded as follows:-Staffordshire, to wit: Be it remembered, that on, &c. at, &c. W. Sims, of, &c. gamekeeper to Sir John Wrottesley, Bart. cometh before me, &c. and giveth me to understand, &c. that on, &c. at, &c. one J. S., &c. labourer, did kill, take, and destroy, or attempt to kill, take, and destroy the (a) See precedents of convictions of this nature. Paley on Conv. App. 38. Chitty's Game Appendix, 109, and ante, 1 vol. 158. It should appear on the face of the conviction, both in the information and evidence, that the complaint was made on behalf of the owner of the fishery, or by his authority, and that the fishing was without his consent. Rex v. Daman, ante, 1 vol. 147. 2 B. & A. 378, and notes, &c. there collected. 4 Burr. 2279, 2281. Paley, 79. See also 2 Burr. 397. 1 Saund. 262, note 1. As to evidence, see 1 East, 648. for killing fish in a private 5 Geo. 3, c. 14, river without the consent of the owner, should state the offence to have been committed in an inclosed ground (a). 1787. REX against SADLER. fish in a river or stream, commonly called the Smestal, in the parish of Womborne, in the county aforesaid, without the consent of the said Sir J. W., bart., he the said Sir J. W. being then the owner of the fishery within the river or stream aforesaid, in the parish of Womborn aforesaid, in the county aforesaid, the same not being in any park or paddock, or in any garden or orchard or yard adjoining or belonging to any dwelling-house, whereupon afterwards, to wit, on the thirteenth July, in the year aforesaid, at, &c. aforesaid, he the said J. S. being by virtue of my warrant brought before me, the justice aforesaid, to answer to the said charge contained in the said information, and having heard the same, he the said J. S. is asked by me the said justice, if he can say any thing for himself why he should not be convicted of the premises charged upon him as aforesaid; and because he the said J. S. doth not say any thing in his own defence, touching or concerning the premises, and doth not pretend to have any just right or claim to take, kill, or destroy any fish within the river or stream aforesaid, but doth of his own accord freely and voluntarily acknowledge and confess all and singular the said premises to be true; and because all and singular the premises being heard, and fully understood by me the said justice, it manifestly appears unto me, that he the said J. S. is guilty of the offence aforesaid so laid to his charge; it is therefore adjudged by me the said justice, that he the said J. S. is guilty of the offence aforesaid, and that he be, and he is hereby convicted by me the justice aforesaid, of the premises, according to the form of the statute in that case made and provided; and I, the justice aforesaid, do award and adjudge, that for the premises aforesaid he the said J. S. hath forfeited the sum of five pounds of lawful money of Great Britain, to be paid as the statute aforesaid doth direct. In witness, &c. Bower, on a former day, had obtained a rule to shew cause why the conviction should not be quashed, for two objections, viz. that it was wrong in stating the offence in the alternative; that the defendant did kill, &c. or attempt to kill, &c., and that it did not state the offence to have been committed in an inclosed ground. He now moved to make the rule absolute; and on the first objection urged, that it was a wellfounded general rule, that in all legal proceedings, charging a party with an injury or crime, the nature of such injury or crime must be so described, that the defendant may know what he is called upon to answer; that the jury (or, in this instance, that the justice) may appear to be warranted in their conclusion of "guilty" or "not guilty," upon the premises delivered to them; and that the court or judge may see such a definite injury or crime, that they may apply the remedy or the punishment which the law prescribes. For this he cited Cowp. 682, 3. 1 Lord Ray. 171 (b). On the second objection, he contended, that to bring an offence within the meaning of the 5 Geo. III, it should be committed within some inclosed ground; and that the conviction being deficient in this statement, it was bad. THE COURT admitting the validity of these objections, the conviction was quashed. (b) See also 3 T. R. 159. Dougl. 278. 1787. REX against SADLER. 1787. Hilary Term. In a convic tion, it must appear that the evidence, on REX against SELWAY. " HE defendant in this case was convicted under the THE 25 Geo. III. c. 78. s. 9, for travelling about from town to town and selling goods by retail there, the which the defendant was convicted, was given in his presence; and where a conviction merely stated, that the defendant on such a day appeared before a magistrate on a summons, and that the magistrate proceeded to examine into the offence, and that it appeared to him, on the oath of the witnesses, that the offence was committed, it was held bad (a).-So the evidence, whereon the defendant is convicted, must appear on the face of the conviction (b).— In a conviction under the Hawker's Act, 25 Geo. 3, c. 78 (now repealed) (c), against a party, for travelling about from town to town, and selling goods by retail there, the places of sale not being his usual place of abode, the conviction should specify the goods sold (d). →It is not necessary, in a conviction, to state how the witnesses were sworn (e). (a) There have been many difficult and troublesome questions arise on this point, which will be found collected in Mr. Paley's excellent Treatise on Convictions, page 111, &c. Any future difficulties, however, will now be prevented by the operation of the 3rd Geo. 4, c. 23, which gives a general form of conviction to be used by magistrates where no particular form is provided; and amongst other things it compels the magistrate (if such was the case) to state that the witness gave his evidence in defendant's presence. By this statute, after reciting" that great inconveniences often arise in summary proceedings before justices of the peace, deputy lieutenants, and others, from a want of a general form of conviction; be it therefore enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that from and after the passing of this act, in all cases wherein a conviction shall have taken place, and no particular form for the record thereof hath been directed, the justice or justices, deputy lieutenant or deputy lieutenants, or other person or persons duly authorized to proceed summarily therein, and before whom the offender or offenders shall have been convicted, shall and may cause the record of such conviction to be drawn in the manner following, or in any words to the same effect, mutatis mutandis (that is to say): County [or as the in the county of of labourer [or as the case may be], personally came before me [or before us, &c.], C. D., one [or more, as the case may be,] of his majesty's justices of the peace for the said us, &c.] that E. F., of day of at , in the county of and informed me [er on the did [here set forth the fact for which the information is laid] contrary to the form of the at same places not being his usual place of abode. The conviction was as follows: Be it rememberd, that on, &c., at, &c., J. C, of, 1787. REX against SELWAY. day of in the county of day of in the year happen to be], did not appear before me [or us, &c.] pursuant to the said day of The second section empowers one justice to receive the original information, &c. where two or more justices are required to hear and determine it; and the third section enacts that in all cases where it appears by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed against the said conviction, where an appeal is allowed, or if appealed against the conviction has been affirmed, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case. This act does not extend to Scotland. (b) This point also, upon which there have been contradictory decisions, sce Paley, 119, will be prevented in future from arising, by reason of the above statute of 3 Geo. 4, which compels the magistrate to set forth in his conviction the evidence whereon the party was convicted. (c) The statute of 25 Geo. 3, c. 78, is now repealed, and the only acts in force against an offence of this nature are the 50 Geo. 3, c. 41, and 52 Geo. 3, c. 108. The 7th section of 50 Geo. 3, prohibits any hawker or other person travelling from town to town, or to other men's houses, either on foot or with horse or horses, from opening a room or shop, and exposing to sale any goods by retail in any town or place, such person |