rection, where it shall be executed, there to remain till duly § 5. delivered. THE juftices or commiffioners indorfing fuch warrants, are not responsible for any inaccuracy in the original warrant. INFORMA TION -FORUM. offences triable any Bur certain offences may be tried in any county, as af- Certain faults upon officers of customs or excife"; offences made felony by 19 Geo. II, c. 34, or by any other act relating to where. the customs or excife; affaults upon officers of the falt duties, or perfons acting in their aid; every offence declared a felony or mifdemeanour by 42 Geo. III, feff. 2, c. 47, if it be committed in Scotland, information may be given to any justice, who fhall grant warrant for committing the offender to gaol, until liberated in due courfe of law; and he may be tried before the court of jufticiary and circuit courts, or before the high court of admiralty at Edinburgh, or in cafe the offence be only punishable by hard labour or imprifonment, the fame may be tried before the judge ordinary of the county where the warrant was granted . TION OR SUMMONS. By the 32 Geo. II, c. 17, § 1 and 2, it is provided, that -CITAin all cafes relating to the excife, or to any of the duties under the management of the commiffioners of excife (exceptwhere particular provifions are made for fummoning offenders, or for condemning feizures made from perfons unknown) the leaving a fummons for the offender at his house, workhoufe, fhop, cellar, vault, or ufual place of refidence, or with his wife, child, or menial fervant, directed to him by his right or affumed name, fhall be deemed as legal and effectual a notice or fummons as if perfonally delivered into the hands of the party, and as if directed to him by his proper § 6. PROOF CITA TION OF What evidence is VI. By ftatute 7 and 8 Will. III, § 24, it is made lawful for the commiffioners of excife and juftices of peace refpec. tively, upon any information exhibited before them for any offence committed against the laws of excife, to summon any perfon other than the party accused, to appear before them at a certain day, time and place inferted in fuch fummons, and to give evidence. THE mode of proof pointed out by 12 Cha. II, c. 23, § 31, and c. 24, § 45, is the party's voluntary confession, or one or more witneffes. Here, therefore, the Scottish com mon law has no place. Hence, on the one hand, two witcompetent neffes are not neceffary; if there be one credible witness, that queftions. will fuffice; and hence, on the other hand, reference to oath, a thing unknown in the law of England, is not admissible in queftions regarding the excife or customs. in excife -ONUS PROBANDI. In trials of feizures, the juftices must go into the merits of the cafe, without enquiring into the form and manner of the feizure f. IT IF, on trial, any difpute fhall arife whether the excife of inland duties have been paid for any foreign goods seized, the proof lies on the owner, and not on the officer 5; and, if any goods liable to duties of excife or inland duties fhall be feized, or if any action shall be brought by the owner or claimer of any fuch goods against any officer of excife or his affiftant, the proof of payment of the duties lies upon the owner or claimer, and not on the perfon who feized the fame, or against whom the action fhall be brought ". f 9 Geo. II, c. 35, § 34. :. land duties are used fynonimously. li 6 Geo. c. 21, § 41; and 12 Geo. any real diftinction ever obtained be c. 28, § 8. b 23 Geo. III, c. 70, § 35. Burn, tit. cxcife, § 2, v. 2, p. 35. In this and other paragraphs, excife and in tween excife lures and inland duties a der the management of the commiffionera of excife, it is now obfolete; and dropped in the later excife acts. In deliv $6. PROOF IN AB IN excife profecutions, the party not appearing is not holden confeffed; decree in absence does not país of course. --DECREET The ftatute directs, "upon his appearance or contempt to SENCE. proceed to the examination of the fact, and, on due proof, &c." If the defender, therefore, appears not, the prosecutor must examine witneffes, or otherwife prove his libel juft as if he were prefent. tend. SHOULD the defender appear, and continue prefent, or by If he atleave attend by his attorney and counfel, he or they are entitled to cross-examine any witnefs produced to prove the Crofs quefcharge, or object to the competency or credibility of fuch toning the with the fame liberty as is ufed in the fuperior courts. witneffes. muft be of the de In order that the defender may have this liberty of cross- Evidence examination, it is a fettled rule in law, after plea or issue taken in joined, that all evidence muft be given in the prefence the hearing or hearing of the defendant, of his counfel. But no evi- fender. dence ought to be given before the defendant be called to anfwer the charge. The reading over the evidence afterwards hath been held not fufficient. However, it hath been held fufficient, if it appear upon the record made and from what is there ftated, that the defendant was prefent, pleaded not guilty, and heard the evidence. The court will presume that the witnefs was examined in his prefence. ering the judgment of the court of of the excife. He said, the difference i 3 Bur. 1785; Hutchefon, ibid. $6. PROOF. Muft make The fame advantage of cross-examination, alfo, arifes to a profecutor upon any evidence produced by a defendant in exculpation. THE general rules of evidence, which we had already otcafion to explain, apply to excife as well as other profecutions P. Only it may be proper to keep in memory, that as informations upon the laws of excife are partly civil and partly criminal, fo the ftricteft rule of evidence must be adopted; and nothing short of some positive fact, done or committed by a defendant, or his known agent or fervants, in fuch their capacity, and with the known or implied confent of a defendant, can be admitted. $7. VII. AFTER the evidence in the cafe is gone through, the JUDGMENT justices are to form their judgment; which must be supported by the information and the evidence, and ought to make the fact the fact appear, that the court of review may be able to the court of judge whether the conviction be agreeable to law or not. review. Thus, if a ftatute direct an information to be on oath, the appear to conviction ought to fhew fuch oath to have been taken'. IT has been faid, that whatever is recorded by the juftices or their order, ought to be expreffed in words of the prefent time and tenfe: Yet that doth not make it neceffary, nor is it indeed practicable, that all that is to be so entered should actually be entered at the instant of time when fuch judgment is given; for fuch entering the whole at that time would hinder the difpatch of bufinefs, and delay the hearing of caufes. It therefore may be done at any convenient time after; and if it be agreeable with, and according to, fuch fhort minutes or notes as are then taken by the juftices, it will be as authentic as if it had been entered at the inftant of time in which fuch order was made, or judgment was given. JUDG MENT. WHEN the record is made up, and the conviction com- Signed. pleted, it must be under the hands of the fame justices, and the information must be fully ftated. Juftices in all cafes ought to return convictions to the feffions, whether an appeal lie or not. If there be a time limited by an Conviction act creating an offence, the precife time of the offence com- ported to mitted, or information brought, and alfo of the conviction, the quarter must be fhewn". feffions. need not of the If the statute give the penalty in certain proportions, the Conviction conviction need not declare the diftribution thereof *. But ftate the where the statute requires the juftices of peace to diftribute diftribution the penalty among certain perfons, according to their difcretion, an adjudication, that the forfeiture be disposed of as the law directs, is bad. The juftices ought to adjudge what the proportions fhould be ". penalty. POUNDING. An information on a popular ftatute cannot be compound--comed after conviction; the penalty having then become vefted. By the ftatute of 18 Elizabeth, c. 5, no informer or plaintiff is to compound or agree with any person that fhall offend, or be furmised to offend, against any penal statute, for any offence committed, or pretended to be committed, but after anfwer made in court to the information or fuit in that behalf exhibited or profecuted. Nor after anfwer, but by order or confent of the court in which the fame information or fuit fhall be depending, on pain, that whoever fhall offend in making compofition, or other misdemeanour contrary to the ftatute, or fhall by colour or Shaw. Exc. Burn, v. 2, p. 31. t Hutcheson, 122. Ibid. p. 11. x 2 Term. Rep. 96; Hutchefon, ibid. 115. y lbid. Vol. 11. 3 A |