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L.AW, AND A COMPENDIOUS AND GENERAL VIEW OF THE PKOVINCIAL LAW ; JVITH PRACTICAL FORMS, FOR THE USE OF THE MAGISTRACY OF '/\ js -'B VPPSR oaitAba. .^ gOMPlLED, AND INSCRIBED BY PERMISSION, TO HIS MAJESTY'S ATTORNEY GENERAL, AN ATTORNEY OF THE SUPREME COURTS OF LAW AT WESTMINSTER. TOROJ^TO. PRINTED AND PUBUSHED AT THE U. C. GAZET^^E OITICE. 1835. f ,\v .;.- * \ n i THECrimil tember, l?£ 40 Geo. 3.1 occurred inl upon this bi or less embj the author careful revil laws of the mains in fo bensive vie^ divested of 3* TUsworl references acts of the analysis of o "^ In the la . effected. T Magistracy 1 ' most the \vh another systc , tion of " Boi i of the Magis I act does not I laws will of ( The Leg] imprisonmen ! addenda. A 4 I instant, shal limit the po\ 10 G. 4. c. : amount. T { in another £ ! by restrainii triflirig amov ' The pow( jthe body of subject. H discharge of by the law. I for mere en Icully which isame statute no other pai -wsm -^ir^ <*^. INTRODUCTION. h m The Crimioal Law of England, as it stood on the 17th day of Sep- tember, 1792, was adopted in this Province by tlie Provincial Statute 40 Geo. 3. c. 1. Since that period, many important changes have occurred in both countries, so as to render most of the English authors upon this branch of law, and particularly those of recent date, more or less embarassing to the reader. This difficulty and inconvenience the author of the present manual has endeavoured to rectify, by a careful revision of the whole criminal code, and a combination of the laws of the Province with that part of the British law which still re- mains in force, — thus presenting at once a full, clear, and compre- hensive view of the criminal law of Upper Canada as it now stands,, divested of all irrelevant matter. TIm work has been compiled from the best standard authorities, 1 references to which are given in every page. It includes also the • acts of the last session of the Legislature, — rendering it a complete ' analysis of our laws up to the latest period. In the last session several important alterations of the law were . effected. The author would particularly direct the attention of the Magistracy to the new " Township Meeting" act, which repeals al- most the whole of the previous laws on this head, and introduces , another system for the regulation of township affairs, by the substitu- : tion of "Boards of Commissioners" in the several townships in lieu I of the Magistracy, to superintend the repairs of the roads. As this i act does not come in force till the first of December next, the former I laws will of course remain in operation during the interval. I The Legislature also in the last sessio.i passed an act to mitigate \ imprisonment fur debt, the provisioas of which are noticed in the 1 addenda. As the act directs that no person, after the first of June, instant, shall be arrested for any debt under JClO, it will of course limit the power of Justices in issuing detainin*^ warrants under the 10 6. 4. c. 2. (revived and continued by the 4 W. 4. c. 6.) to the like amount. The intention of the act is humane, and v/ill probably result in another good, viz. the prevention of wilflil and corrupt perjury, by restraining the too common practice of issuing writs of capias fur trifling amounts and without adequate cause. The powers and duties of the Magistracy are so fully detailed in the body of the work, that the author will nut here enlarge upon the subject. He will merely observe, that in the upright and conscientious discharge of their duty. Justices of the Peace are powerfully protected by the law. They are secuied against frivolous aiid vexatious actions for mere errors in form, by the 2 W. 4. c. 4. ; and to obviate the difii- ,culty which has sometimes occurred in drawing up convictions, the ^same statute prescribes a general form to bo used in all cases where no other particular form has been given by statute. I IV Xtitrotittetion. The author has also included in the, work the law respecting the " office and duties of Coroner,** with various forms and precedents calculated to assist these officers in the performance of their duties : Also, a short treatise upon the law respecting landed property, or ** real estate," with a few general forms of conveyancing, which may be found useful in those distant parts of the Province where recourse cannot always be had to professional aid. Indexes to the principal matters will also be found at the end of the work. At a future period the author intends to publish an edition of all the British Statutes extending to this Province anterior to the consti- tution; which, with the Provincial Statutes and the Manual now published, will complete the plan he has designed for simplifying and elucidating the criminal code of this Province. With respect to the form and style of the Manual, the author trusts it will give sren»«-al satisfaction. It has been printed upon Canadian paper and by a Canadian press, and will, he hopes, be regarded on these grounds as u performance not discreditable to the Province. 24th June, 1835. I .■■.■r^i-^ •«» ■ ..X I / ' •■ .ji '■■■»<- -•" "■.•''1 ,, i ,, ^::--Kj'ir ■« %'• ^vm-' .-:,■ - '; ■■!■' ^ »; ' f J - -'■■}■:'' i.i.. y ... .,■?; Doctor D J. B. Em Robert I John Ing William William John J. : John Lav John Sec Thomas ' Hugh Wi Charles I James Hi George C John Aic Michael , John Hay John Chi Richard James R Bran Hiram Si Matthew i v'-tb;- ,,#• riftil* >ectiDg the precedents eir duties: operty, or which may re recourse end of the lition of all the consti- lanual now )lifying and luthor trusts m Canadian regarded on rovincif .}'<> LIST OF 1. ;»l SUBSCRIBERS TO THE PROVINCIAL JUSTICE. His Majesty^s Attornky General. « . « His Majesty's Solicitor General. Marshal S. Bidwell, Eaq. Barrister at LaWy and Speaker of the Honorable the House of Assembly, W. 11. Draper, Esq. Barrister at Law^ and Reporter of the K. B. Robert Baldwin Sullivan, Esq. Barrister at Law^ ^e. Mayor of the City of Toronto. W. B. JakviSi Esq. Sheriff of the Home District. '"* ''" '- Robert Baldwin, Esq, Barrister at Law. Clark Gamble, Esq, Barrister at Law^ Solicitor to the Bank of Upper Canada, Simon Washburn, Esq, Barrister 4*£m C. P. if the Home District. John Powell, Esq. Barrister at Law. John 6. Spragoe, Esq. Barrister at Law. J oun BvLht Esq, Barrister at Law, Charles Richardson, Esq. Barrister at Law, John OoiLvr Hatt, Esq, Barrister at Law. J. H. Samson, Esq, Barrister at Law. ^ Allan N; McNab, Esq. Barrister at Law. Doctor Dunlop,— GoitertcA J. B. Ewart,— Dufuia* Robert Berrte,— Hami/ton John IngliSf'—Guelpk William Holme,— Brantford William McKay,— ^Te^on John J. ha.ne,—'Saltflut John Law,— iramt7ton John Secord,— Barton Thomas Tyf«, — Esgueaing Hugh Wilson,— SiUtflut Charles Kennedy,— Esquesing James Hamilton,— Ffamftoro' fFest George Ghisholm,— J'/c^mfioro' East John Aickman, iim.—Ancaster Michael Aickman,— flami/ton John Haycock,— iln4:(U(er John Chisholm,— £. Fhmboro* Richard Be&sley,— Hamilton G. D. James Racey,— Afoun< Pleastmt, Brantford Hiram Smith,— ITeUtnif/on Square Matthew Crooks,— ilnca«fer—£sqr*s. Daniel Lewis,— SaZiyfrsf Andrew T. Kerby, — fF. Flamboro' Thomas D. Campbell,— /?rocftii7/e Paul Glasford, — Brocliville Robert Edr^ondson,— BrocArviWe John L. R. - J, — Merrickville, Terence Smii :,— Afemc/:t>i7/e B. R. Clinch,— AfemcArviY/e Henry Burritt, — Merrickville J. Woods,— S^antftPicA Chatles Eliot, — Sandtoich Quarter Sessions, — Sandwich John Vrince,— Sandtoich Matthew Elliot, — Amherathurg Charles Fortier, — Amherstburg John Lister,— I^ar/tngf on William Warren,— ^ar/fngfon John Scott, — Darlington Lewis 6tiles,^X>ar{tng'(on James PnngIe,—Comu'a?/ Hugh McGilliSf—JVilliamstoien Alexander Fraiser,—'Williamstoion, G/enj^arr^— Esquires. VI Sttti0cir(tinr0* l> rinrles C. Farriin, — Osnubruck Adam Dixun,— Mbu/ct'e/^e Joint II;ill, —Lanar/e Josias Taylor,— Perth James Wyl\e,— Ramsay Malcolm Cameron,— fer(/!i John F. Berford,— Per/A John Ridley,— Fitzroy Joshua Adams, — Perth Henry Glass,— Pere,vmot4r iames Gardiner, — SunniJale i. W. D. Lindsay,— Zorra Angus Betliune,— Sau/t St. Mary's, Lake Superior Hugh Stewart— MorHam, Yonge-St Lawience Hey den, — IVhitby John Forrester,— PeMam Richard Rennie,— FaugAan John Bland,— Gore Toronto Matthew Cowan, J. V.— Brock Thomas Mussington, — Georgina E. Sanford,— Peferftoro' Henry Munro,— Clark Capt. Oliver,— Ofo Colonel Light, T. G. Anderson,— Co/(/t«afer William Dougall, — Hallotvell D. Stinson, — Hallowell James Cotter,— Sophiasburgh David Smith, — Halloxoell Jacob Howell, jun. — Sophiasburgh D. L. Fairfield,— £fa/fou?e// Dftvid Barker, — Halloteell Thomas Moore,— /fo^/aice/f John Macdonald,— /fa//otM// John Uougall, — Marysburgk Benjamin Hubbs, — aallawell James Dougall,— Ho/Zoure// D. B. Sievenson,^£fo/Zot«e// Adam Hubbsi— Ho/Zotoe/Z Charles Bockus,— Ho/Joire// Robert P. Boucher,— Coiotir^ Gheesman Mor,— JPeferftoro* William Smart,— Peterftoro' Thomas Murphy,- Peterioro' B. Y. McKenzie,— Co/Aome Benjamin Weller, — Colbome Thomas Masson,— Co/ftome Capt. James Mason,— Co/6ome Thomas Mossington,— Georgtna John Steele,— Co/Aorne-Esquires. Rev. Arch'd. Colquhoun,*-Ofona&ee William Lawden ; Hamilton Sheldon Hawley ; River Trtnt ■ Joseph Keeler ; Colbome Patrick Mucqnire ; Colbome lM!'>-3iis F. Whitehead ; Port Hopt Geo. C. Ward ; Port Hope Tlinmns Ward : Port Hope Robert F. Cook ; Caxfuga Lake Henry Nelles ; Grimsby U. W. Nelles; Grimsby H. Yeomans ; H'attrloo Alexander Fraser ; Perth William L. Servos ; Niagara John Alma ; Niagara — Lang ; Niagara Edward G. O'Brien; Oro William H. Merritt ; St. Catherine» James Thomson ; N. District George Hughes; Port Hope James Ingersall ; Oxford Edward Beeston ; Toronto ..;;, John Hall ; Lanark Peter Carroll; Ox/brcf ,, , Leslie Batteishy ; Cayuga .. , . , —— Macdonell ; Toronto Joseph Talbot; Toronto Thomas Johnson ; C/arA: Thomas Benson ; Port Hope John R. Benson ; Peterborough Allan Wilmut; C/anl-e Quarter Sessions ; London John Taylor; Haldimand Francis lieys ; Pickering W. B. Robert ; RaitUiwn John Poore ; Gutlph ^. ; Peter Paterson ; Toronto Rol)crt Cathcart ; Toronto ■, • , George Monro; Toronto T. H. Taylor ; Toron/o J. P. Carey ; Toronto J. M. Cawdel! ; Osgoode Hall John King, M. D. ; Toronto David A. McNab; ^/itzmt'/ton— Esqr's. Doctor Hamilton; Scarborough Doctor Choate. «» A TABLE OF THE GENERAL QUARTER SESSIONS. HoMR DistRicT. — At Toronto^ on Tuesday in the week next after the several Terms. Eastern District. — At Comtealit on the 4ih Tuesday in January and April, and 2ud Tuesday in July and October. Ottawa District. — At Longuiel, on the Srd Tuesday in January and April, June and September. Batiiurst District. — At Pertht on the Srd Tuesday in March, September and December, and the 2nd Tuesday in June. Johnstown District. — At Broekvilh^ on the Srd Tuesday in Feb- ruary and May, and 2ud Tuesday in August and November. Midland District. — At Adolphuatown^ on the 4th Tuesday in January, and 2nd Tuesday in July; at Kingston, on the 4th Tuesday in April, and 2nd Tuesday in October. Newcastle District. — XxAmher$t,ovi the 2nd Tuesday in January, April, July and October. Prince Edward District. — At Picton, on the 1st Tuesday in January, April, July and October. Gore District. — At Hamilton, on the 2nd Tuesday in January, April, July and October. Niagara District. — At Niagara, on the 2nd Tuesday in January, April, July and October. London District. — At London, on the 2nd Tuesday in January, April, July and October. Western District. — At Sandwich, on the 2ud Tuesday in Janua- ry, April, July and October. i THE MAGISTRATE'S MANUAL. ii t.%iir,\i't' '{'>■ 't»"' .■» i. t .* %«■ f ACCESSORY. An Accessory is one guilty of Felony, not as a principal but by participation, command, advice or concealment. In high treason there can be no accessories, as all concerned are cqp- sldered principals : so in petit larceny, misdemeanor, or inferior crimes of the like nature, under the degree of felony, there can be no accessories. The mere concealment of a felony intended to be committed, does not render the concealer an accessory. It ii only misprision of felony. 2 Haw, c. 29. ^ 23. There are accessories before and after the fact. An Accessory before the fact is, as Hale defines it, one who being absent at the time the crime is committed doth procure, counsel, or advise the commission of it ; and his absence is neces- sary to constitute him an accessory. Accessories after the fact y are those who knowing the felony to have been committed by another, receive, relieve, comfort or assist, the felon. 1 Hale. 618. But if others accompany the principal to commit a felony, and keep within hearing, or upon watch, all are in such case, deemed principals. 2 Haw* c. 29. ^ 7. 8. A wife cannot be accessory to her husband, either before or after the fact, unless she be any way guilty of procuring him to commit the felony. 2 Haw, 320. Anciently, the accessory could not be tried unless the principal were attainted ; 3 Ed,l, c. 14; but by the 1 Ann, c. 9. ^ 1. If the principal be convicted, or stand mute, or challenge above twenty of the Jury, the accessory may be tried as if the principal had been attainted. By the 29 G. 2. c. 30. The buyer or receiver of stolen lead, iron, copper, brass, bell metal or solder, may be convicted altho* the principal had not been, and shall be transported for fourteen years. And now by 3 W. 4 c. ^ 12. Accessories before the fact, to any capital offence, shall suffer death. I I 2 Mtnunovp. In all other cases of stolen goods, if the principal cannot be taken, the buyer or receiver may nevertheless be prosecuted for a misdemeanor, at common Laiv, and be punished by fine and imprisonment. 1 Ann. c. 9. ^ 2. 5 Ann, c. 31. ^6. Bail may be taken for the misdemeanor. Information of the party ^ to ground a Warrant for apprehending an Accessory before the fact. A. B. of the Township of->— f in the Home District, maketh oath and saith, that on — — the — — day of last, his dwell- ing-house, situate was about the hour of nine in the night of the same day, feloniously and burglariously broken and entered by some person or persons, and that (describe the property stolen) his property were then and there feloniously stolen, taken and ^carried away, and that he hath just cause to suspect, and doth sus- pect that C. D. late o f aforesaid, labourer, did commit the said felony and burglary, and that £. F. late of aforesaid, labourer, did advise, aid and abet, the said C. D. in the said felony. Sworn, &iCt A. B. Warrant thereon. To the Constable of and all other His Majesty's Peace Officers within the said District. Home District, > Whereas A. B. of gentleman, hath this day to wit. ) made oath, before me W. S. Esq., one of His Majesty's Justices of the Peace in and for the said District, that (here state the facts as set forth in the information). These are therefore in His Majesty's name to charge and command you, forthwith to apprehend and bring before me, the said C. D. and £. F. to answer the said complaint, and to be further dealt with according to Law. Given under my hand and seal this day of 18 — 'jV',;/,- Commitment, To the Keeper of the Common Gaol of or his deputy. Receive into your custody the bodies of C. D. and E. F. here- with sent you, brought before me W. S. Esq. one of His Majesty's Jastices of the Peace in and for the said District, by R. S. Con- stable of charged upon the oath of A. B. with (here state^ the offence) ; and them safely keep in your custody until they shall be discharged by due course of Law. Given under my hand and seal at this day of—— 18—. Tol Ho of tl witl also! sinc^ harbl housi well and to ap| said with in the frnm.9Mm^ Warrant to apprehend an Accessory after the fact^ for harbouring the Principal. To the Constable of and all other His Majesty's Peace Officers within the said District. Home District, > Whereas C. D. of stands charged before . to wit. > me J. C. Esq. one of His Majesty's Justices of the Peace in and for the said District, on the oath of A. B. with having (state the offence) \ and whereas P. Q. hath this day also made oath, before me, that T. T. of aforesaid, yeoman, since the said felony and burglary was committed, hath received, harboured and maintained, him the said C. D. in the dwelling- house of him the said T. T. at — — . aforesaid, he the said T. T. well knowing the said C. D. to have committed the said felony and burglary. These are therefore to command you, forthwith to apprehend and bring before me, at this place, the body of the said T. T. to answer to the said charge, and to be further dealt with according to Law. Given under my hand and seal at — — in the said District, this dav of 18 -r. Warrant to apprehend an Accessory after the fact ^ for receiving stolen goods. To the Constable of — — and all other His Majesty's Peace Officers within the said District* Home District, > Whereas A. 6. hath this day made oath, before to wit. > me S. P. Esq., one of His Majesty's Justices of the Peace in and for the said District, (here state the facts set forth in the Information) ; and also, that the said A. B. hath cause to suspect, and doth suspect, that I. I. of labourer, hath feloniously bought and received the ssaA( the property stolen) knowing the same to have been feloniously stolen. These are therefore to command you, forthwith to apprehend and bring before me, at this place, the body of the said T. T., to answer to the said charge, and to be further dealt with according to Law. Given under my hand and seal at — — ' in the said District, this day of — — 18—. Commitment of an Accessory for a misdemeanor in receiving stolen goodSf previous to the trial and conviction of the Principal. * ".: To the Keeper of His Majesty's Gaol at . Home District, > Receive into your custody, and there safely keep to wit. i until delivered by due course of Law, the body of A» B. herewith sent you, and charged before me, one of 4 ^tWittUh $Ct. His Majesty's Justices of the Peace acting in and for the said District, on the oath of C. D. of— with having unlawfully received (describe the stolen articles), lately stolen from the dwell- ing-house of the said C. D. at — — aforesaid, by some person or persons at present unknown, the said A. B. well knowing the said (describe the articles) to have been feloniously stolen. Given under ray hand and seal at — this — day of—— 18 — . 'I m ACQUITTAL. And see— Autrefois Acquit. An acquittal is the deliverance and setting free of the accused from the imputation of guilt ; as when a prisoner is found by a Jury not guilty of the offence with which he stood charged before them upon his trial. Deacon* s C Law. 18. Where there is no evidence whatever to affect a party who is unjustly made a defendant with others, in a prosecution, the judge may, in his discretion, direct the jury to acquit him in the first instance, and such an acquittal will enable him to give evidence in behalf of the other defendants. 1 Holt, 275. Gil, Ev, 117. Bull. N. P. 285. Every prisoner upon his acquittal, it has been said, has an undoubted right to a copy of the record of such acquittal ; and after a demand of it has been made of the proper officer, the latter may be punished for refusing to make it out. jR. v. Brangan 1. Leach. 27. But if there was probable cause for the indictment, or where the acquittal arises from the incompetency of a witness, the court will not then permit the prisoner to have a copy of the indictment. R. V. QuicTc. 1. Leach 28. Note (a). R. v. Bevan, Ibid. 1. Ld. Ray, 253. ACTION. No action can be brought against a Justice of the Peace for any thing done by him by virtue of his office, until notice in writing of the intended writ or process shall have been delivered to him, or left at his usual place of abode, at least one calendar month before the suing out or serving the same ; in which notice shall be clearly and explicitly contained the cause of action which the party suing claims to have against such Justice ; and on the back of such no- tice shall be endorsed the name and place of abode of the plaintiff's attorney or agent. 24 Cifeo. 2. c. 44. ^ 1. ^'V^ IMIba ^tllon. said 'ully rell- nor said iven sed ^ a bre > is Ige rst ice n id er 1. ■e rt ^ The party may give the notice in his own name, or in the name of his attorney ; but the particular writ intended to be issued must he stated, av ' it must be served one full calendar month previous to such Wil £!ing issued, and the month begins with the day on which the notice is served. 3 T, R, 623. It is necessary to be particular in describing the offence, as no evidence can be given by the plaintiff of any cause of action except such as is contained in the notice ; a general notice of an action for an assault and false imprisonment is bad. 7 T. JR. 631. The action must be commenced within six calendar months after the act committed, and must be brought in the district where the grievance complained of arose. No action shall be brought against any constable, or any officer acting by his order, for any thing done in obedience to any war- rant of a Justice, until demand made, or left at his usual place of abode, by the party intending* to bring such action, or by his attorney or agent, in writing, signed by the party demanding the same, of a perusal or a copy of the warrant, and that the same hath been refused or neglected for six days after such demand : and if al\er any demand and compliance, any action shall be brought, without making the Justice who signed the warrant de- fendant, on producing and proving such warrant on the trial, the jury shall give a verdict for the defendant, notwithstanding any defect of jurisdiction of the Justice ; and if such action be brought jointly against the Justice and Constable, &£c. on proof of such warrant, the jury shall find for the Constable ; and if the verdict shall be given against the Justice, the plaintiff shall recover costs against liim, including such costs as the plaintiff is likely to pay to the defendant for whom the verdict shall be found. And where the plaintiff in such action against a Justice shall obtain a verdict, and the Judge shall certify on the record that the injury was wilful and malicious, the plaintiff shall have double costs. 24 G.2. c. 44. ^ 1. 6. 7. It is not necessary in the notice that the attorney's christian name should be written in full, but his residence must be specifically stated. 7 Taunt, 53. 2 Marsh. 367. 3 Bos» and Full, Notice of Action from the Attorney of the Party to c Justice of the Peace, for false Imprisonment, To A. B. one of His Majesty's Justices of the Peace, acting in - and for the— —District. Sir, I do hereby, as the attorney of C. D. o f gent, give you notice, according to the form of the statute in that case made and provided, that I shall, at or soon af\er the end of one calendar i Action. mouth from the time oflhe service of this notice upon you, caused a writ of capias ad respondendum to te sued out of his Majesty's Conrt of King's Bench at Toronto against you, at the suit of the said C. D. for false imprisonment ; for that you, on or about the day of last, by warrant under ydur hand and seal, dated the ■ ■ ■■ day of ■, did cause the said C. D. to be apprehended and conveyed to the common gaol of (as the case may be) and to be there imprisoned, and kept and detained there with'out any reasonable or probable cause for a long time, to wit, for the space of then next following. Dated this day of 18 Yours, 8tc. £. F. Attorney for the said C. D. City of Toronto, Demand on a Constable of perusal and copy of his warrant To Mr. C. D. I do hereby, as attorney of and for A. 3. of — - &c. ac- cording to the form of the statute in such Case made and provided, demand of you the perusal and copy of the warrant, by virtue or under colour whereof, you did, on or about the day of. last, apprehend the said A. IB. and carry and convey him in custody to and before S. P. Esq. one of his Majesty's justices of the peace in and for the district. Dated, &ic. > Yours, &c. W. T. attorney for the said A. B. Hamilton^ District of Gore, The like on a Gaoler. To Mu. A. B. 1 do hereby, as the attorney for E. F. of- — &tc. according to the form of the statute, Uc. (as before) demand of you the peru- sal and copy of the warrant of commitment and detainer under which you received into your custody the said £* F. on or about the .__ day of instant. Dated, &cc. Yours, &CC. W. T. attorney for the said E. F. Hamilton^ District of Gore* It seems proper that constables should^ retain their warrants, and not return them to the magistrate, otherwise they cannot com- ply with the directions of the act. {Toom.) ... - TTfe; fS^Ki^ of JS^fivliamtm, $rt. % ACTS OP PARLIAMENT. . By the 14 G. 3. c. 11. it is enacted, that the Secretary of this Province shall endorse on every Act of the Legislature which should pass during the then piesent and every future session thereof, immediately aAer the title of such Act, the day, month and year, when the same shall have passed, and received the royal assent : and such endorsement shall be taken to be a part of such Act, and to be the date of its commencement, when no other commencement shall be therein provided. By the 44 G. 3. c. 5. ^ 3. it is enacted, that the said clerk shall, as soon as possible after receiving the said acts, send four copies to each member of the Legislative and Executive Councils : four copies to each of the Judges of the King's Bench, and the like number to the Attorney General, and twenty copies to each mem- ber of the present House of Assemblj', to be by them distributed in such manner as will best tend to promulgate a general knowledge of the laws. By the 4 G. 4. c. 14. ^ 2. the expense of printing the Statutes annually, shall be provided for in the contingent accounts. By the 1 W. 4. c 2. ^ 2. all acts of the Provincial Parliament, public or private, shall be taken notice uf judicially in all Courts of Law in this Province, without being specially pleaded ; and a copy of such Act printed by proper authority, shall be taken as sufficient evidence. ADJOURNMENT. When a court of sessions of oyer and terminer, and gaol delivery breaks up without any adjournment^ or upon a void one, as being made without the consent of the majority of the commissioners, the commission is determined, if no lime be limited for its continu- ance, as where it is appointed pro hac vice only ; but if it be granted for a certain time, or quamdiu nobis placuerit, it does not necessarily require any adjournment, and may be holdcn again on a new summons. 2 Haw, c. 5. <^ 7. AFFIDAVIT. An affidavit is an oath of some fact, testified in writing and sworn before some person who hath authority to administer such oath. The true place of habitation and true addition of the deponent must be inserted in the affidavit. 1 Lill, Ab. 44. 46. ' An affidavit ought to set forth the matter of theyhct only, which the party intends to prove by his affidavit, and not to declare the 8 mnvap. » .* *. I ■ii 4h R^ J merits of the case, of which the court alone is to judge. 21 C. 1. And the matter sworn to must be positively set forth, with all material circumstances attending it, that the court msTy judge whether the deponents conclusion be just or not. 1 New. Abr, 66. Therefore on a motion to put off a trial, for want of a material witness, it must appear in the affidavit that sufficient endeavours liave been made to have him at the time appointed, and that he cannot possibly be present, though he may be, on further time given. 7 Mod. 121. Comb. 421. 422. When an affidavit is read in court, it ought to be filed with the proper officer, that the adverse party may see it and take a copy. Pasch.lQ55. , .^ The affidavit must be made before a judge or commissioner of the court where the cause or matter is pending. Sty. 455. An Affidavit improperly entitled cannot be read, as no indict- ment thereon will lie for perjury. Salk. 461. Affidavits in aggravation of punishment are not receivable in cases of felony. R. v. Ellis. 6. B. fy C, 148. • • Any person making, or knowingly using a false affidavit, pur- porting to be taken abroad before a foreign magistrate^ for the purpose of misleading our own courts, is guilty of a misdemeanor, in attempting to pervert public justice, and is punishable by indictment. Omealy v. Newell, Q East. 2Q4t. Affidavit of being prevented by illness from attending the Sessions, [to be made by a medical man, if couvenient,] in order to move to con- tinue a party upon his recognizance. (Toone.) ,f • Home District, ) A. B. of in the said District, Surgeon, to wit. 5 niaketh oath, and saith, that C. D. of yeoman, is confined to his house by severe illness, and that this deponent saw the said C. D. yesterday, and verily believes he is incapable of travelling without manifest danger of his life. Sworn, &c. A. B. . AFFRAY. An affray signifies the fighting of two or more persons in some public place, to the terror of His Majesty's subjects. 3 Inst. 158. 4 Bl. Com. 144. 1 Burn. Just. Affray. 1. r An affray differs from a riot, in this : that two persons only may be guilty of it j whereas three persons, at least, are necessary to constitute a riot. 1 Haw* c. 65. ^ 1. f msm MUV^S. t Persons going armed with such dangerous and unusual weapons as will naturally cause terror to the people, are guilty of an affray ; which is said to have been always an offence at common law, and is strictly prohibited by several statutes. 1 Haw, c. 63. § 2. 4. A constable is not only empowered, but bound, to suppress an affray which happens in hia presence ; and he may demand the assistance of others to enable him to do so, which if they refuse, they are punishable by fine and imprisonment. Ibid. 3. 13. A justice of the peace may, by his warrant, authorise the ar- rest of any person for an affray, end may compel the offender to find sureties of the peace. But he cannot do this without a war- rant when the affray is out of his view. 1 Haw, c. 63. ^18. This offence is in general punishable by JiTie and imprisonment the measure of which is to be regulated by the discretion of the judges, according to the circumstances of the case. 1 Haw. c. 63. ^30. Affidavit to ground a Warrant to apprehend Affrayers* A. B. of , hatter, maketh oath and saith, that on the — -— day of in the year of our Lord 18 — , C. D. of labourer^ E. F. of labourer, and G. H. of ' yeoman, did in a tumultuous manner, and with force and arms, make an affray, to the terror of His Majesty's subjects then and there being, where- in the said A. B. was assaulted, beaten and abused, by the said C« D. £. F. and G. H. wiihout any just or reasonable cause. Sworn, &c. A. B. Warrant to apprehend Affrayers. To the Constable of. Home District, ) Whereas complaint hath been made before me, ;-t to wit. \ S. P. Esq. one of His xv^diesty's justices of the P peace in and for the said district, upon the oaui of A. B. of< in the said District, that (here state the substance of the complaint^ as set forth in the Affidavit.) These are therefore, in His Majes- ty's name, to charge and command you, forthwith, to apprehend the said C. D. E. F. and G. H. and bring them before me, or some other of His Majesty's justices of the peace for the said district, to answer the premises, and to find sureties, as well to keep the peace towards the said A. B. as to appear at the next general quarter sessions of the peace, to be held at i in and for the said district, to answer such indictments as shall be pre- ferred against them by the said A. B. for the said offence. Given under my hand and seal, this — .— day of ■■ 18— :1 ■i 10 Indictment for an A fray. (Archhold.) Home District, > The jurors for our Lord the King upon their To wit : 5 oath present, that J. S. late of the township of . in the county of in the Home district, labourer, and J. W. of the same, carpenter, on the day of..— in the .vear of the reign of our Sovereign Lord William the fourth, with force and arms, in the township aforesaid, in the county and district aforesaid, being unlawfully assembled together and arrayed in a warlike manner, then and there in a certain public street and highway there situate, unlawfully and ta the great ter- ror and disturbance of divers liege Subjects of our said Lord the King then and there being, did make an afiray, in contempt of our siiid Lord the Kin^ and his laws, to the evil example of all others in the like case offending, and against the peace of our Lord the King his crown and dignity. AGRICULTUUAL SOCIETIES. By the 11 G. 4. c. 10. reciting that it would greatly tend to the general improvement and prosperity of this Province, if agrrcul- tural societies were established in every district, with a suitable endowment from the public funds, it is enacted, that when any pgricultural society for the purpose of importing valuable live stock, grain, grass seeds, useful implements, or whatever else might conduce to the improvement of agriculture in this Province, shall be established in any district, and shall make it appear to the satisfaction of the Governor, &c. that not less than £50, has been subscribed by the society, and paid into the hands of a treasurer, and the president and directors of the said society, shall petition the Governor for aid in support of said society, it shall be lawful for the Governor to issue his warrant to the Receiver General in favor of such petitioners, for the sum of £100, annu- ally, during the continuance of such society, and so long as the society shall themselves continue to raise a sura, by subscription, of not less than £>bO ; and in case an agricultural society shall be established in each county of any particular district, the said bounty shall be equally divided between the societies. ^ This act to remain in continuance four years, and till the end of tbfe next session of parliament. The act passed on the 6th March. 1830, and will consequently eipire with the session, ending in 1835. / >«: ALE-HOUSES. 11 H'^ the 4 G. 4. c. 15. <^ 1. every person who shall open a house lor the sale of beer, ale« cider or other liquors, not spirituous, within any town or village of this province, or within one mile thereof, containing twenty houses or more, by retail, shall take out a license, under the hand and seal of any two justices of the peace residing within such town or village ; or if two justices shall not be residing within such town or village, then by any two justices nearest thereto, and which license shrill be in the form following : Form of License. *' We, A. B. and C. D. two of His Majesty's justices of the peace residing in [or nearest to, as the case may be] the town or village of '■ do hereby authoiise and empower £. F. in the house described by the sign of in said town or village, in the — -— district, to keep a common ale and victualling house, and to uttecand sell therein by retail, ale, beer, cider and other liquors, not spirituous, also, bread and other provisions ; provided, that no unlawful game or games, or any drunkenness or other disor- der be suffered in said house, or in the yard, garden, or premises thereunto belonging, but that good order and rule be maintained therein. This license to continue from the date hereof, until the — — day of — — in the year of our Lord — — For which license two shillings and six pence may be demanded, and no more. Ser. 2. The justices before granting such licenses, shall take bond and surety by recognizance, from such alehouse-keeprr in <£10. and two sureties in £5. or one sufficient surety ih iSlO. as well against the using of unlawful games, as also for the mainten- ance of good order and rule; to be filed by the justices with the clerk of the peace, at or befuie the next general quarter sessions, and such recognizance to be in the form following ; and fee for the same, one shilling. Form of Recognizance. r ' District, > Be it remembered, that on the day of- -*- to wit. y m the year of the reign of our Sovereign Lord A. A. of in the said district, yeoman, and B. B. of— — yeoman, and C. C. of yeoman, personally came before us D. D. and £. £. justices of the peace for the said dis- trict, and acknowledged themselves to owe to our Sovereign Lord the King, that is to say, the said A. A. the sum of ten pounds, if 1^ t 12 ia(ie=9ott«f0* and the said B. B. and C. G. in the lum of five pounds each, of good and lawful money of Upper Canada, to be made and levied nf their goods and chatte' lands and tenements, respectively, to the use of our Sovereign Liord the King, his heirs and successors, if the said A. A. shall make default in the condition hereunder written. Whereas the above bounden A. A. is licensed to keep a house for the sale of ale, beer, cider and other liquors, not spirituous, by retail, for one year from the dale hereof, in the house wherein he now dwelleth, known by the sign of in' — Now the condition of this recognizance is such, that if the said A. A. shall sufler no unlawful games,' drunkenness, or any other dis- order, to be used or committed in his said house, nor in any out- house, yard, garden, or other the appurtenances thereto belonging, but shall maintain and keep good order and rule within the same, then this recognizance to be void, otherwise to remain in full force and virtue. Sec. 3. Every person to whom such license shall be granted, shall pay a duty for the same, as follows, viz. : — in or within one mile of towns or villages containing not less than twenty, nor more than fifty dwelling-houses, 10s. ; from fifty to one hundred, the sum of 20s.; and more than one hundred, the sum of 40s.; which monies shall be paid to the magistrates issuing the license, and by them, within six months afterwards, to the receiver general, for the use of the province. Sec. 5. Any person opening an alehouse, &:c. contrary to this act, shall upon conviction before any two justices, upon the oath of one or more witnesses, or upon confession, forfeit and pay not less than £2, nor more than £5, to be levied by distress and sale of the goods of the ofiender, by warrant from the magistrates before whom such conviction shall happen, with costs ; and for want of sufficient distress be committed, by order of such magis- trates, to the common gaol of the district, for not less than ten days, nor more than thirty days. Sec. 5. One half of the penalties shall be paid to the receiver general, for the use of the province, and the other moiety to the informer. Sec. 6. Any justice on complaint or infoimation, that any per- son licensed as aforesaid, whereby in the judgment of such magis- trate the recognizance shall be forfeited, may summon such person to appear at the next general quarter sessions, to answer to such complaint, and shall bind the complainant in recognizance to appear and give evidence, at which said session a jury shall be empannelled to enquire of the complaint preferred, and if such jury shall, upon hearing the evidence, determine that the defen- d • L is| ml if mi ml ru l!llf=||OU«f0* 13 dant has done any act whereby the condition of his recogniiance ii broken, luch act being named by them, the juiticca before whom the matter shall be tried, shall order the recogniiance of such defendant to be established in His Majesty's court of king's bench, and such person shall be disabled from obtaining a license for the sale of beer, be. for the space of one year then next. Sec. 7. During fairs, persons may sell ale, &c. but not spiri- tuous liquors, without a license. Sec. 8. The magistrate to whom application is made for licenses, may determine the number of houses which shall be licensed, and if any person upon being refused shall feel aggrieved, such person may apply to the general quarter sessions for redress ; and if the majority shall be of opinion that the applicant is entitled to a license, the chairman may grant such license. Sec. 9. Act to continue in force two years, and to the end of the next session, — continued by the 7 G. 4. c. 11. and by the 2 W. 4. c. 21. passed 28th January, 1832, for four years, and to the end of the next session. Information for selling Ale or Beer^ S^c. without a License. (Arch.) , Home District, > Be it remembered, that on the day of to wit. ) in the year of our lord __ . at in the said district, C. D. of in the said district, constable, who as well for our Sovereign Lord the King as for himself doth pro- secute in this behalf, personally cometh before us J. P. and T. L. two of His Majesty's justices of the peace for the said District, and as well for our said Lord the King as for himself informeth us, that A. B. late of the township of in the district afore- said, labourer, within the space of six months now last past, to wit, on the ._.- day of in the year aforesaid, at the town- ship aforesaid, in the district aforesaid, did sell ale, (ale or beer or cider) to wit, ten pints of ale by retail, without being licensed so to do, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in such case made and provided, the said A. B. hath forfeited for his said offence, the sum of five pounds. Wherefore the said C. D. who sueth as aforesaid, prayeth the consideration of the said justices in the prem- ises, and that the said A. B. may be summoned to appear before us, and answer the premises, and make bis defence thereto. Exhibited before ns C. D. The Summons, ^ Home District, > To A. B. of to wit. > Whereas you have this day been charged before ttl J* P. and T. L. two of His Majesty's justices of the peace for 14 niunn. the laid diitrict, on the information and complaint ofC. D. of for that you within the ipace of six months, &ic. (here itate the offence as laid in the information). These are therefore to require you to appear before us at in the said district, on neat, the i— — day of. at the hour of in the — noon of the same day, to answer to the said charge, and to be further dealt with according to law. Herein fail you not. Given under 'Our hands and seals the — day of — in the year of our lord; 18 — The Conviction. May be in the form given by the 2 W. 4. c. 4. [see Conviction] as the above acts do not contain any speciHc form of conviction. The Distress Warrant. . A general form will be found under that title. ^ The Commitment. For want of sufll^ient distress, will also be found in a general form under the title " Commitment." ALIENS. k» >. An alien is one, generally speaking, who is born in a foreign country, out of the allegiance of the king. 4 Bl. Com. 372. But by 7 Ann c. 5; 4 G. 2. c. 21 ; and 13 G. 3. c. 2f ; all children born out of the king's ligcance, who^e fathers or grand- fathers by the fathers side, were nnlural-born subjects, are deemed lo be natural-born subjects themselves, to all intents and purposes ; unless their said ancestors were attainted or banished beyond sea for high treason ; or were, at the birth of such children, in the service of a prince at enmity with Great Britain. The children of aliens born in the king*s dominions, are natural- born subjects, unless the alien parents are acting in the realm as enemies ; for it is not coelum nee solum which gives them the rights of Englishment but their being born within the allegiance and under the protection of the king. 7 Co. 18 A. 1 Bl. Com. 374. When an alien is indicted for any crime, the jury should be one half ibreigners, if so many are found in the place ; but this privi- lege does not hold in treason, since aliens are holden to be not the proper judges of what is a breach of the allegiance due to a Brit- ish Sovereign. 4 Bl. Com. 352. An alien residing in this country, may be indicted for high treason, if he aid even his own countrymen in acts of hostility to this kingdom. 1 Haw. c.n.^ 5. Fost. 185. Salk. 46. 2 Ld. Ray. 282. East. P. C, 53. Alirnii. m By the 9 G. 4. c. 21. the preamble of which recites, that it if expedient to remove by law, doubts that may have arisen os to the civil rights and titles to renl estate, to certain persons therein mentioned, and to provide by some general law fur the natiiralii- ation of such persons, not being by law entitled to be regarded as ;iatural-born subjects, as were actually domiciled in this province, it is therefore enacted, as follows : — <• that all persons who have held any public office in the province, under the great seal or privy seal of the province, or under the sign manual of the Gover- nor, and all persons who have taken the oath of allegiance, or made affirmation of allegiance to His Majesty or his predecessors, before any person duly authorised to administer such oath or affirmation ; and all persons who had their settled place of abode in this province before the year 1820, and arc still resident therein, shall be, and are thereby admitted and confirmed in all the privi- leges ofbritish birth and natural-born subjects: provided, that no one (except females) who has not taken the oath, or made the affirmation of allegiance, shall be entitled to the benefits of this act, unless he shall take the sard oath or affirmation before some duly authorised person." And by ^ 2. it is further enacted, "that all persons actually do- miciled in this province on the Ut March, 1828, not being of the description before mentioned, who shall have resided, or shall continue to reside therein, or in some other part of His Majesty*^ dominions, for the space oi seven years continually, without having been during that time stated, resident in any foreign country, shall be deemed and taken to be natural-born subjects, as if they had been born in this province : provided, that no one of the persons described in this clause, (except females) who, at the passing of this act has been resident in His Majesty's dominions seven years continually, as aforesaid, shall be entitled to the JMj^fits of this act, unless within three years after the passing of qjjf act, (if at the passing of the act he shall be sixteen years of age or upwards, or if not of that age, then within three years after he shall be of that age) he shall take and subscribe the oath in the schedule to this act, marked A, or affirm to the same efiect, before the register, or deputy register of some county in this province ; and that no one of the persons described in this clause, who has not been resi- dent as aforesaid, seven years continually in His Majesty's domin- ions, shall be entitled to the benefits of this act, unless within three years after he shall have completed a stated residence of seven years continually, as aforesaid, in His Majesty's dominions, (if at the expiration of such residence he shall be of the age of sixteen years or upvvards, or if at that time not of that age, then within three years after he shall have attained that age) he shall take and lubscrib ,' such oath or make such affirmation." ;i; 4 \ 16 Form of th* Oath. A. ^, " 1 do swear, (or being one of the persons allowed by law to affirm in civil cases, do affirm,) that I have resided seven years in His Majesty's dominions, without having been during that time resident in any foreign country ; and that I will be faithful and bear true allegiance to the Sovereign of the united kingdom of Great Britain and Ireland, and of this province, as dependent thereon." By the 1 W. 4. c. 8. the period of three years mentioned in the last act for taking the oath, is extended to four years from the passing of this act, and thence to the end of the next session. ai tef all %e\ frc m( B1 oy| Ui .. . ALLEGIANCE. Allegiance is the tie which binds the subject to the King, in return for the protection which the king affords the subject. 1 BL Com. 396. And there is an implied, original and virtual, allegi- ance owing from every subject to his sovereign, although the sub- ject nwver swore any oath or allegiance in form. 2 Inst. 121. 1 Bl, Com. 368. which upon the death of the king, in actual possession of the crown, is due to his heir and successor before his coronation. 3 Inst. 7. 1 Haie. 61. 102. I Haw. c. 17. -^ 19. Allegiance is of two sorts, the one natural^ the other local ; the former being perpetual, the latter only temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth ; and this can- not be forfeited, canceiled or altered, by any> change of time, place or circumstance, nor by any thing but the united concurrence of the legislatwjk 1 Bl. Com. 359. 2 P. Wm. 124. 1 Hah 68. 96. Fst. 7. ^ Local allegiance is >ioh as is due from an alien or stranger born, for so long a tin as he continues within the king's domi- nions and protection ; and this ceases the instant such stranger transfers himself from this kingdom to another. 1 Bl. Com. 370. Oath of Allegiance. I, A. B. do sincerely promise and swear, that I will be faithful and bear true allegiance to his Majesty King William the fourth, and him will defend to the utmost of my power against all traito- rous conspiracies and attempts whatsoever which shall be made against his person, crown and dignity ; and I will do my utmost endeavour to disclose and make known to his Majesty, his heirs v.. i by lanr to en years in I that time lithful and ingdom of dependent ned in tiie 3 Trom the ssion. ! King, in ct. IBI. a], allegi- ^ the sub- 21. 1J5/. lossession ronation. >ca/ ; the •n within ihis can- le, place |rence of 68. 96. stranger Is domi- jtranger I. 370. faithful fourth, Itraito- made itmost heirs mtnmtntntnt, $^c« J7 and successors, nli treasons and traitorous conspiracies and at- tempts which 1 shall linovv to be against him, or any ofthem ; and all this I do swear, without niiy equivncation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from ^ny power or persons whomsoever i<> the contrary. So help me God. ,., ,,-■■••■..-.; ,-,.1 '■■-■'>,.„ , .- .—'?.■■., --'•:, ••'ij' AMENDMENT. By the 1 W. 4. c. 2. it is enacted, that any judge of any court of oyer and terminer and general gaol delivery, if such court or judge shall think fil, may canse the rcconi on which any trial may he pending before any such court, in any indictment or informa- tion for any misdemeanor, wiien any variance shall appear between 5iny matter in wriiing or m prim, produced in evidence, and th« recital or setting forili thereof upon the record whereon the triul is pending, to bo Corlhvvitii amended in such particular, by some officer of the court. ■:'^ APrKAL. ^ - ^ - ■ ' ' • ■ ■ - An APPEAi. lies against a conviction, only in cases where it is expressly given by statute. R. v. Hanson. 4 JB. $,' A. 519. The statute which allows of an appeal, usually directs that a reasonable notice of the party's intention to appeal shall be previ- ously given, either to ihe Justices or to the complainant, or to both; but, unless required by the stattite, a notice of appeal is not abso- lutely necessary; see R. v. J.J. of Essex, A B.^A. 27G ; and even in cases where such notice is required, it need not be in writing, unless required to be so by the statute. R. iJ.,T.J. of Salop, 4 B. &£ A. 626. It is also required in many cases, that the party appealing shall enter into a recognizance with sureties conditioned to try the appeal, and to abide the judgment of thefl|||t thereon. The terms in which these notices aiid recogni/.anc^l^ directed to be given by the several statutes, respectively, by which they are required, vary in many trifling particulars ; but it may be sufficient to give the following forn)S, which have been framed upon one of Mr. Peel's acts, and which may be altered in parti- cular cases, so as to make them conformable with the statute requiring them. Archhold on Conv. Notice of Appeal. (Archhold.) Home District, > To of in the said to wif. S This is to give yon [and each and ecenj of you] notice, that I C. D. do intend, at the next general quarter sessions B 1 !^ ; * 16 mppfnl— (Court of.) of the peace, to be holden in and for the said district, at — — In the said district, to appeal against a certain conviction of me the said C. D. by J. P. Esquire, one of His Majesty's justices of the peace for the said district, for having as is therein and thereby alleged, [on &c. at -^^ — - &e. &c. [stating the ofiencej and that the cause and mailer of such appeal are [that I am not guilty of the said offence,] and that [stating any other causes of appeal the party may have] of all which premises you [and each and every of you] are hereby desired to take notice. Dated this day of &c. Witness, E.H. C. U. , Recognizance, (Archbold.) Home District, > Be it remembered, that on the day of — — to wit. S in the year of the reign of our Sovereign Lord W. the fourth, C. D. of labourer, L. M. of yeoman, and J. K. of grocer, personally came before me J. P. one of His Majesty's justices of the peace for the said district, and acknowledged themselves to owe to our said lord the king the sum of pounds, each, to be made and levied of their goods and chattels, lands and tenements, respectively, to th.e use of our said lord the king, his heirs and successors, if default shall be made in the condition following: Whereas by a certain conviction, under the hand and seal of •— — one of His Majesty's justices of the peace for the district aforesaid, the said C. D. is convicted, for that he on inc. [stating the offence]. And whereas the said C. D. hath given notice unto [within days after such conviction, and clear days before the next general quarter sessions of the peace] of his inten- tion to appeal against the said conviction, and of the cause and matter th^^aaL Now, the condition of this recognizance is such, that if [flflPbove bounden C. D. shall personally appear at the next geuerir quarter sessions of the peace to be holden at in and for the said district, and shall then and there try such appeal and abide the judgment of the said court of quarter sessions there- upon, and pay such costs as shall be by the said court awarc2ed] then this recognizance to be void. Taken and acknowledged before me, J. P. ', s i APPEAL.— C Court of) Bt the 34 G. 3. c. 2. which establishes the court of King's Bench in this province, it is also provided by the 33 ^, that the Governor, &c. or Chief Justice of this province, together with any two or M fSi:»l^v€ntittn. 19 more members of the Executive Council of the province, ihall compose a court of appeal, for hearing and determining all appeals from uuch judgments or sentences, as may be lawfully brought before them ; and by <^ 35. an appeal shall lie to this court in all matters exceeding jClOO. upon proper security being given by the appellant to prosecute such appeal, and answer the con- demnation and pny such costs as shall be awarded, in case the judgment or sentence appealed from shall be affirmed ; and by ^ 36. the judgment of such court of appeal shall be final in all cases under £500. but hi cases exceeding (hut sum, as well as in all cases relating to any annual or other rent customary, or other duty or fee, or any other such like demand of a general and pub- lic nature, aflfeciing future rights, of what value or amount soever the sum ma}' be, an appeal may lie to His Majesty in his privy council, upon proper security. (..,.,. APPRENTICES. - An apprbnticr is one under age, who is bound by indenture to s^erve his master or mistress fur a term of years during his mino- rity. The 5 Eliz. c. 4. commonly called the statute of apprentice- ship, provides and enacts, that all indentures for a less term than seven years shall be void. l( this regulation be not complied with the indentures are void' able at the parties election. 1 Anstr. 256. 6 Esp. R. 8. It has however been decided, that as between the parties them- selves the indenture is not absolutely void, but only voidable, and that it must be avoided in a proper manner. Rex. v, Evered, CttldecotCs Rep. 26. 1 Bolts. 530. 1. 6 Term Rep. and when a party is bound as nn apprentice for less than seven years, no third person can avail himself of this deviation from the statute, so as to protect him from liability to an action for enticing away such apprentice. 6 T*rm Rep. 652. 7 Term, Rep. 310. 314. and it is settled in the case of Rex. v. St. Nicholas, that a binding for four years gives a settlement, and Aston, Justice, said, " supposing the indenture voidable, I cannot conceive that the apprentice's running away can avoid them ; had he served regularly, and during such service declared his intention to depart, it might have been different ; here he would make use of his offence in order to avoid the punishment that attended it, but it is too late to do it before a justice, when charged with a crime. And Willes and Ashhurst, justices, were of the same opinion. I Bott. p. 525. pi. 709. 20 mppv$ntiHU< Again, in the case o( St, Nicholas v. St, Peters, (Burr, Sett, saats) the same question was fully argued, and lord Hardwick, chief justice, in an elaborate judgment, said, "I am of opinion " that it does not make this Indenture void, but only voidable, if ♦• tlie parlies themselves think fit to take advantage of it;'* and three other judges concurred in opinion. It being, therefore, clearly established as law, that an appren- ticeship may be good for a less term than seven years, until avoided by the parlies in a legal and proper manner; until this be done, such apprentices are clearly within the operation of the various statutes relating to apprentices generally. It has been held not an indictable offence to entice away an apprentice from his master, on (he ground that it is not an act of a public nature, but a mere private injury, and therefore the proper subject of an action. Rex. v, Daniel. 6 Mod. 182. I Sal/c. 380. Jiex. v. CoIIingwood. At common law, an apprentice stealing his masters goods i> guilty of felony ,*if they were simply under his charge: but not if entrusted to him to Tceep for his master, this being a so breach of trust only. I. //. P. C. 605. This however was made felony by Statute 21 H. 8. c. 7. in apprentices [not under eighteen years of age] embezzling to the value of forty shillings. It is a misdemeanor to solicit him to steal his master's goods, though no act be done by him as to the stealing. Itex, v. Hig- gins. 2 East. 5. Jtex. v. CoIIingwood^ contra. ' ' "*' It is an indictable offence to refuse or neglect to supply necef- saries to a child, servant, or apprentice, whom a person is bound by duty or contract to provide for, if such child be of tender years and unable to provide for itself. R. v. FrieruL Russ, if Rtj.20. The apprenticeship may be determined by the death of the mas- ler, or the apprentice coming of age. Hx. j^arte Davis. 5 Term Rep, 715. Chitty ajtj). L. 79. Differences between the Master and Apprentice. \e master is allowed by law, with moderation, to chastise his apprentice. Dalt. c. 59. But if the master and his apprentice cannot agree, they may proceed upon any one of the following statutes, applicable to the facts and circumstances of the case. By 5 Eliz. c. 4. <^ 35. if any master shall misuse or evil entreat bis apprentice, or the apprentice shall have any just cause to com- plain, or the apprentice do not his duty to his master, then the master or apprentice being grieved, and having cause to com- plain, shall repair unto one justice of the peace within the county, or to mi sh^ bet ihi pc^ th( mi pea the ofi po^ ',\ ^utitenifcffif. 21 to Ihtt majror or other head officer of the city, town corporate, market town, or other place, where the said master dwelieth, who shall by his wisdom and discretion take such order and direction between the master and his apprentice as the equity of the case ■hall require. And if for want of good conformity in the master, the justice of peace, or the mayor or head officer, cannot compound and agree the matter between him and his apprentice, then the justice, or the mayor, or other head officer, shall take bond of the master to ap- pear at the next sessions then to be holden in the county, or within the city, town corporate, or market town, to be before the justices of the said county, or the mayor or head officer of the town cor- porate, or market town, if the master dwell within any such. And upon his appearance and hearing of the matter before the justice, or the mayor or other head officer, if it be thought meet unto them to discharge the apprentice of his apprenticehood, then the justices, or four of them at least, whereof one to be of the quorum, or the mayor or head officer, vviili the consent of three other of his brethren, or men of best reputation within the city, town corporate, or market town, shall have power by authority hereof, in writing under their hands and i^enls, to pronounce and declare that they have discharged the apprentice of his apprentice- hood, and the cause theroof ; and the writing so being made and enrolled by the clerk of the peace, or town clerk, amongst tiie records that he keepeth, shall be a sufficient discharge for the said apprentice against his master, his executors and administrators ; the indenture of apprenticehood or any law or custom to the con- trary notwithstanding. And if the default shall be found to be in the apprentice, then the justices, or the mayor or other head officer, with ti)e assistance aforesaid, shall cause such due correction uiul punishment to be ministered unto him, as by their wisdom and rliscretious shall be thought meet. By 5 Eliz. c. 4. "^ 47. if any servant or apprentice of husbandry, or of any art, science, or occiipntion aforesaid, unlawfully depart or flee into any other shire, it shall be lawful to the justices of the peace, and to the mayors, bailiHs, and other head officers of cities and towns corporate, for the time being justice of the peace there, to make and grant writs of capias, so many arid such as shall be needful, to be directed to the sherifl's of the counties, or to other head officers of the places whither such servants or apprentices shall so depart or flee, to take their bodies, returnable before them at what time shall please them, so that if they come by such pro- cess that they be put in prison, till they shall fnid sufficient surety well and honestly to serve their masters, mistrtssei , or dames, iVoin 23 ^tM>vtntUtu* ^ % whom they so departed or fled, according; to the order of the lavr. By 20 G. 2. c. 19. ^ 3. it shall and may be lawful to and for any two or more justices of the peace of the county, riding, city, liberty, town corporate or place, where such master or mistress shall inha- bit, upon any complaint or application by any apprentice, upon whose binding out no larger a sum than Jive pounds of lawful British money was paid, touching or concerning any misusage, refusal, or necessary provision, cruelty, or other illtreatment, of or towards such apprentice, by his. or bfr master or mistress, to sum- mon such masters or mistresses to appear before such justices at a reasonable time, to be named in such summons; and such justices shall and may examine into the matters of such complaints ; and upon proof thereof made upon oath to their satisfaction, (whether the master or mistress be present or not, if service of the summons be also upon nath proved) the said justices may discharge such apprentice by warrant or certificate under their hands and seals, for which warrant or certificate no fee shall be paid. And by <^ 4. it shall be lawful to and for such justices, upon ap- plication or complaint made, upon oath, by any master or mistress, against any such apprentice, touching or concerning any misde- meanor, miscarriage, or illbehaviour, in such his or her service, (which oath such Justices are hereby empowered to administer) to hear, examine, and determine the same, and to punish the offender by commitment to the house of correction, there to remain and be corrected and held to hard labour for a reasonable time, not ex- ceeding one calendar month, or otherwise by discharging such apprentice in manner and form before mentioned. By '^ 5. provided, that if any person or persons shall think him- self, herself or themselves, aggrieved by such determination, order or warrant, of such justice or justices as aforesaid, (save and except any order or commitment) he, she or they, may appeal to the next general quarter sessions of the peace, to be held for the county, riding, liberty, city, town corporate or place, where such determi- nation or order shall be made ; which said next general qui.rier sessions is hereby empowered to hear and finally determine the same, and to give and award su,?h costs to any of the respective persons, appellant or respondent, as the said sessions shall judge reasonable, not exceeding forty shillings, the same to be levied by distress and sale. By <§ 6. and 7. it is also provided, that no certiorari, or other process shall issue or be issuable to remove any proceedings what- soever had in pursuance of this act, into any of his Majesty** courts of record at tVesiminsler. By 6 Gto. 3. c. 25. if any apprentice (except such whose master shall have received with such apprentice the sum of ten pounds, j I999utftfcr0« 2d shall absent himself from his master's service, before the term of his apprenticeship shall be expired, every such apprentice shall, at any time or times thereafter, whenever he shall be found, be com- pelled to serve his said master for as long a time as he shall have so absented himself from snch service, unless he shall make satis- faction for the loss he shall have sustained by his absence from his service, and so from time to time as often as any such apprentice shall, without leave from his master, absent himself from his ser- vice before the term of his contract shall be fulfilled ; and in case any such apprentice shall refuse to serve as hereby required, or to make such satisfaction to his master, such master may complain upon oath to any justice of the peace of the county or place where he shall reside, which oath such justice is hereby empowered to administer, and to issue a warrant under his hand and iieal for ap- prehending any such apprentice ; and such justice upon hearing the complaint, may determine what satisfaction shall be made to such master by such apprentice ; and in case such apprentice shall not give security to make such satisfaction according to such de- termination, it shall and may be lawful for such justice to commit every such apprentice to the house of correction, for any term not exceeding three months. By ^ 3. such application must be made within seven years after the end of the term of the apprenticeship. And by '^ 5. any party aggrieved may appeal to the next gene- ral quarter sessions, giving six days notice to the justice, nnd entering into a recognizance within three days after such notice, with sufficient surety to try such appeal, and abide the order of and pay such costs as should be awarded by the sessions. ^< Upon these acts Mr. Chitty, in his treatise on the law relative to apprentices observes, that a more extensive power is given to the sessions than to justices in the first instance. That under the statute 5 Eliz. c. 4. one justice is only constituted a mediator, and has no power to proceed, unless the master agree to be bound by his determination, and if he do not, the only course is to resort to the sessions ; but if the master agree, though the apprentice do not, the magistrate may by order under hand and seal, direct him to be discharged: for no option is given by the statute to the ap- prentice, but only to the master. The power given over indentures of apprenticeship to tivo ma- gistrates, by the 20 G. 2. c. 19. is confined to apprentices, where theprcemium does not exceed Jive pounds. Besides the power of discharging, the sessions have by the 35 ^ of 5 Eliz. c. 4. power to cause such due correction and punishment to be ministered unto the apprentice as they may think fit, and by virtue of this clause they may commit the apprentice; and Dr. i ;Y 24 ^)^$tenHtr0. ^ 1 I [ft I ■{''. J 1 1 < ■u' i l- ;i* 1- Burn observes, that this being left indefinite, it seeini most appo- site that the justices commit the apprenticed to the house of correc- tion for a time, to be kept to hard labour, or otherwise corrected, as the nature of the offence may require ; but that this clause iik the act does not restrain but enlarges the power of magistrates over apprentices, beyond the power given them over masters, whom the justices cannot punish, and the magistrates may inflict «:orporai punishment, or discharge an apprentice at their dis- cretion. „... Pt Kccdinga at Sessions under 5 Klizahcth. An order of discharge may be made upon the application of either party, for an apprentice may be discharged from a bad mas- ter, and n bad apprentice from his master. 1 Saund, 315. 16. 313. n. 2. But the sessions cannot discharge without setting forth some cause in their order. 1 Bott. 577. 2 Str. 1013. lb. 704. 1 Botl. 576. The usual causes for which the apprentice complains against the master are cruelty and misusing his contract, cither by neglecting to instruct him, or the like. And when the master applies to get rid of his apprentice it is generally upon the ground of incorrigible behaviour. There is no power to discharge for sickness, as " where the ap- prentice was lame and in the surgeons opinion incurably aiHictev^*' for the master takes him fur better or worse, and is to provide for him in sickness and in health. 1 Sfr. 99. 1 Bolt. 574. The order must be under the hands and seals of fuur justices, and enrolled as the act directs, or the superior courts will set it aside. 1 Saund. 316. n. 5. 2 Salk. 470. 1 Bott. 572. 1 Str. 99. The power of discharge is confined, in counties, to four jus- tices at the least, and must be made at a general sessions, and not a private sessions, or the order may be set aside. 1 Skin. 98. 1. Bott. 512. ff against the Master. Although the 5 Eliz. requires the discharge to be made ou the roasters appearance, the court held that the act must have a rea- sonable construction, and the sessions might proceed in the masters absence, otherwise, if he ran away, the apprentice could not be discharged. 2 Salk. 491. 1 Bott. 572. Common form of an Indenture of Apprenticeship. , i This Indenture witnesseth, that A. B. of the age of years, the son of B. C. of the township of in the home district, yco- ^Pi^vtntittn. 25 man, by and with the consent of his said father, doth put himself apprentice to C. D. of the ciiy of Toronto, shoemaker, to learn his ai't, and with him after the manner oi an apprentice, to serve from the day of the date of these presents, unJo the fui' -^nd and term of ■ years from thence next following, to be fully , /inplete and ended ; during which term the said apprentice his master faith- fully shall serve, his secrets keep, his lawful commands every where gladly do : he shall do no damage to his said master, nor see to be done of others, but to his power shall let or forthwith give warning to his said master of the same : he shall not waste the goods ot his said master, nor lend them unlawfully to any : h6 shall not commit fornication nor contract matrimony within the said term : he shall not play at cards, dice tables, or any other unlawful gan)es, whereby his said master may have any loss with his own goods or otiiers, during the snid term, wiitiout license of his said master : he sitall neither buy nor sell : he shall not haunt taverns or play-houses, nor absent himself from his said master's service day or ni^ht, unlawfully, but in all things as a faithful apprentice he shall behave himself towards his said muster and all his, during the said term. And the said C. D. in consideration of the faithful services of the said apprentice, and of the sum of £ of luwful and current money of the province of Upper Canada, to him in hand paid by the said B. C. at or immediately before the execution hereof, the receipt whereof is hereby acknowledged, his said apprentice in the art of a shoemaker which he useth, by the best means that he can, shall teach and instruct, or cause to be taught and instructed, finding and providing unto the said appren- tice sufHcieiit meat, drink, lodging and all other necessaries, during the said term, [and moreover, here add any special contract for wages, in case any are to be paid to the apprentice,] and for the true performance of all and every the said covenants and agreements, each of the said parties bindeth himself unto the other, and others of them firndy by these presents. In witness whereof the parlies above named to these indeniut^s interchangeably have put their hands and seals, at the city of Toronto aforesaid, the — — day of in the year of ourLord, 183 — . Signed, sealed, and delivered > A. B. L.S. in the presence of —— > B. C. L.S. E. K. Schoolmaster. . C. D. L.S. Summons of the Master for misusing his Apprentice, on 5 Eliz. c. 4. (Burn.) To the Constable of the Township of . n T\' i • t \ ^Vhereas complaint and information hath been Home district, j ^^^^ ^^^^ ^^^ ^^^^ ^^ ^.^^ Majesty's ju»- !26 fSlWt$ntt($u, ■■t ticec oTihe pe^ce in and for the said district, by A. B. apprentice to C. D. of — in the said township, shoemaker, tliat the said C. D. hath misused and evil entreated him the said A. B. (by cruel punishmentt and beating him the said A* B. without just came, and by not allowing unto him sufficient meat, drink, apparel, or as the case may be.) These are, therefore, in His Majesty's name, to command you to summon the said C. D. to appear before me, at the house of in the said township, on — ^ the — — day of — — at the hour of— — in the afternoon of the same day, to answer unto the said complaint, and to be further dealt with ac- cording to law. Herein fail you not. Given under my hand and seal, the day of &c. ^'^' Summons of the Apprentice on complaint of the Master, on 5 £/fx. e. 4, (Bum.) i 7 --v.. -.» • rtr. -^ To the Constable of. u n* « • * ^ Whereas complaint and information hath been Home Uislrict. J ^^^^ ^^^^ ^^ _ — ^ ^^^ ^^ ^j^ Majesty's jus- tices of the peace in and for the said district, by C. D. 01'.. in the said district, shoemaker, that A. B. now being an appren- tice to him the said C. D. is negligent, stubborn, disorderly, (or as the case may be) and doth not his duty to him his said master. These are, therefore, to command you to summon the said A. B. to appear before me at _.— in the said Township, on the -_... day of _— at the house of in the afternoon of the same day, to answer the said complaint, and to be further dealt wiih according to law. Herein fail not. Given under my hand and seal, &c. -> •» ('.t.^. vft»^*> Form of Recognizance to appear at the Sessions. See the usual form — Title Recognizance. »• The condition of the above recognizance is such, that if the above bounden C. D. shall and do appear at the nest general quarter sessions of the peace to be holden in and for the home district, and then and there answer to a complaint to be preferred against him by A. B. his apprentice, and not depart the court without leave, then this recognizance to be void. Taken and acknowledged, Sec. Order of discharge by four Justices at the Sessions, on the i Elix. c. 4. § 35. (Burn.) H mA n'.i * ♦ ? At a general quarter sessions of the peace holden wome Lnsinct. ^ ^^ j^^ ^^^ ^^^ ^y^^ ^^j^ ^^^^ j.^j^.^^^ ^^^ t ;?*■ ■ day of ' . in the — — year of the reign of ou ^lovereigi lord William tlie fpurtli, by tiie grace of God, of tiie united king- dom of Great Britain and Ireland, King, defender of tlie faith, and 80 forth, before — — justices of 7)ur said lord the king, assigned to keep the peace in the said district, and also to hear and deter- mine divers felonies, trespasses, and other misdemeanors, in the said district committed, and of the quorum — it is ordered as fblloweth: — -, ^ i ; Upon the petition of A. B. apprentice to C. D. of in the said district, shoemaker, to be relieved, upon certain neglects of the said master in instructing liim in his trade, and in misusing and evil entreating the said apprentice by cruel punishment, (or as the case may be.) And the said master having likewise appeared, upon his recognizance taken before J. P. Esquire, one of the said justices, to answer to the complaint of the said petition, and having proved nothing whereby to clear himself of the snid complaint, but on the contrary, the said A. B. having given full proof of the truth of the said complaint, to the satisfaction of the said court, we therefore, whose hands and seals are hereunto set, being four of the said justices, and of the quorum, do hereby order, pro- nounce and declare, that the said apprentice shall be, and is here- by discharged and freed from his said apprenticehood. And this is to be a final order betwixt the said master and apprentice, any thing in their indenture of apprenticeship, or otherwise, to the contrary, notwithstanding. Given under our hands and seals, the day and year first above written. Complaint of an Apprentice to two Justices, againit his Master^ on 20 G. 2. c. 19. where the prcemium paid is not over £5. II n* » • * ^ *^^^ information and complaint of A. P. apprcn- Home iJisirict, ^ ^.^^ ^^ ^ ^ ^^_ husbandman, exhibited before us, two of His Majesty's justices of the peace in and for the home district, the — — day of — — in the year, See. who saith, that lie the said A. P. is an apprentice, bound by indenture, to A. M. of aforesaid, husbandman, and that he the said A. M. hath misused and ill treated him the said apprentice, and particu- larly, that on or about the — — day of (here state the facts.) Before us, A. P. .., ^ J. P. - K. P. sd fSippvtntMu. Smimon$ of tht Matttr^ by two Juitirei, on complaint o/tht Appr9n- tict, on th* 20 O. J., e. 19. § 8. To the Constable of ■■ Whereas information and complaint hath been made unto us two of His Majesty's jus- Home District •1 tices of the peace in and for the said district, by A* P. apprentice to A. M. of in the said district, that he the said A. M. hath misused and ill treated him the sdid A. P. and particularly, {here ttaie the facts.) These are, therefore, to require you to summon the liaid A* M. to appear before us at _— - in the said district, on ' the ■ day of. to answer unto the said infor- mation and complaint. And be you then there, to certify whiit you shall have done in the execution hereof. Herein fail not. — Given under our hands and seals, the — .-.— day of Discharge of an Apprentice^ btf two Justices, on tht Master misusing him, hy the 20 G. 2, c. 19. § 3. u n* I • » ^ Whereas complaint halh been made before us, Home Uisirici. j ^^^^ ^^^.^^ Majesty's justices of the peace in and for the said district, by A. P. apprentice to A. M. of in the said district, 'tailor, that he the said A. M. hath misused and evil treated him the said apprentice, and particularly, (set forth the particulars.) And whereas the said A. M. hath appeared before us, in pursuance of our summons for that purpose, but hath not cleared himself of and from the said accusation and com- plaint, but on the contrary, the said A. B. haili made full proof of the truth thereof, before us, upon oath. We therefore, by these presents, do discharge him the said A. P. of and from his apprenticeship to the said A. M. any thing in the indoiiture of apprenticeship made between them, or otherwise, howsoever, to the contrary, notwithstanding. Given under our hands and sealsi the . day of . &tc. [Or — And whereas it hath been duly proved before us, as well upon the oath of A. G. constable of afoicsaid, as otherwise, that he the said A. C. did duly spn-iuiun the said A. M. to appear before us at a reasonable time, in the said summons mentioi: A. B. L.S. in the presence ■ y C. l>. L.S. E. F. Tfte Award. To all to whom these presents shall come : I — — of yeoman, send greeting. Whereas (here recite the subject matter in Jiajmte, and the agree- ment to refer the same to arbitration^ as in the above form). Now know ye, and these presents uiitiess that I the said — .-i. having taken upon myself the said reference, and having heard the state- ment of the parties and their witnesses, and having examined the matters and proofs produced on both sides, and having investiga- ted the transactions and accounts by and between the said parties, and maturely considered the same, do make my award in manner following, that is to say, — I do hereby award and determine that there is ,iow justly due and owing to the said A. B. from the said C. D. the sum of £ upon a balance of account : and 1 do award, order and direct, that the said C. D. shall pay the said sum of £ to the said A. B. or his order, within .. after the pubhcation of this my award, and notice thereof in writing given to the said C. D. : and I do further order and direct, that each of the said parties shall pay his own costs, charges and ex- penses, of and concerning the said suir, and of all matters whatso- ever attending the said reference :* and I do further order and * Tha arbitrator may ftward othervrisp, as he may think proper, and award aiihar party to pay the whole; C fl 34 Mvi*uiQn\ntnt, ^c m direct, that, the costs nnd charges of and attending this wy airnrd, shall be paid equally between the said parties. In witness vr hereof I have hereunto set my hand and seal, the day of 183 — Signed, sealed, and delivered, ) iu the presence of ) ARRAIGNMENT. The arraignment of a prisoner consists in calling him to the bar by his name, and commanding him to hold up his hand, in order to identify his person, reading over distinctly the indictment to him, that he may understand the charge, and demanding nf him whether he is "guilty" or "not guilty." The practice until late was, to ask him, in addition, how he would be tried — to which the answer required was — *• by God and my country." But now by the 3 W. 4. c. 4. § 17. if a person shall plead " not guilty," he shall by such plea, without any further form, be deemed to have put himself on the country for trial. Standing nniie upon arraignment shall be equivalent to a plea of "not guilty." lb. The prisoner should stand at the bar till he receives judgment, without irons, shackles or bonds. 2 Hale^ 219. a lis i 11^ ; ARREST. An arrest is, in the criminal law, an apprehending or restraining of the person of any individual, in order to be forthcoming to an- swer an alleged or suspected offence or crime : and to snch an arrest all persons whatsoever, without distinction, are equally liable ; but no man can, in general, be arrested, unless charged with such a crime as will at least justify holding him to bail when taken. 4 BL Com, 289. Arrest by Warrant. •iS A warrant may be granted, in extraordinary cases, by the privy council, or ar^; of the secretaries of state, but ordinarily, by jus- tices of the peace. 1 Ld. Raym. G5. A jitstice may grant a warrant in all cases where he has n juris- diction over the offence, in order to compel the person accused to appear before him. 12 Co. 130. 2 Haw. 84. Bane v. Methwn, 2 Bing. 63. * Thus a warrant may be granted in all treasons, felonies, and breaches of the peace, and also for all su :h offences as a ji stice has power to punish by statute.— /(&i' the bar in order [ment to f nf him intil la(e to which Sut now guilty." emed lo a plea dgmcnt, training^ to an- ich an equally barged il when H e privy by jui- \ jurig- iised to ethuen. \», and ji vtice ' grant a warrant against an offender charged on oath with having pul»- lishcd a libtlt and compel him to find sureties. Jiuti. v. Connnt, i Brod. ^ B, 548. It may be issued also to apprehend a person accused of felony, though not indicted, or to apprehend a person suspected of felony, though the original suspicion be not in the justice issuing the warrant, but in the party that prays it, fur the Justice is the com- petent judge of the probability ollered to him of such suspicion. 2 Hale. P. C. 108. and see 34 Edw. 3. c. \. But ng warrant should in any case be granted without an ex- amination upon oath of the party requiring it, as well to ascertain that there is a felony or other crime actually committed, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. 2 Hale, 110. The reasonable grounds of suspicion are — common fame ; being found in such circumstances as induce a strong presumption of guilt ; the (light or escape of the person suspected ; being found in evil company ; or living an idle, vagrant and disorderly life. 2 Haw, 76. The warrant should be under the hand and seal of the justice; should set forth the time and place of making, and the cause for which it is made ; and should be directed to the constuble, or other peace oflicer, (or it may be to any private person, by name, {Salk\ 176) requiring him to bring the party, either generally, before any justice of the peace for the county, (or district) or only before the justice who granted it : the warrant in the latter case bvi.i^' called a special warrant. 2 Haw. 85. 4 Bl. 290. A general warrant to apprehend all persons suspected, without naming or describing any person in particular, is illegal and void, for its uncertainty. 1 Hale 580. 2 Haw. 82. In like manner, a blank warrant filled up by a third person^ with the name of an officer after the warrant is signed and sealed by the magistrate, is illegal. StockUi/s casCj I East. P. C, 310, Houson V. BnrroiVy 6 T. R. 122. Stevenson'' s case, 10 St. Tr. 462. The cause of the arrest should be stated with sullicient certainty on the face of the warrant, in order to shew the jurisdiction of the court, or magistrate granting it. When a warrant properly penned is received by the officer, he is bound to execute it within the district for which the jurisdiction of the magistrate extends; and tlie oflicer will (by 24 Or. 2. c. 44) be in that case indemnified, even though the magistrate should not have strict authority to grant it. 4J^/. 291. The warrant of a justice of the peace in one district, tnu$t be backed, that is, signed by a justice of the peace in another, before ii can be executed in the latter district. And see 23 G. 2. c, 26. and 24 G. 2. c. 55. ! IS 'I 36 ^vvttiU V I \:M When a constable, aficr he has nrrestcd the party under a war- rant, suQers him to go at large, upon his promise to come again and find sureties, he cannot afterwards arrest him by force of the same warrant; but if the party return and put himself again under the custody of the constable, it seems that the constable may then lawfully detain him and carry him before the justice. 2 Haw. 81. And if the parly escape, the oflicer n^ay take him again, al- though he goes out of view, or ilies into another town or county. Valt. c. ICD. . . ., - •,♦ -»«■■.•: Arrest without Warrant, A Justice of the peace may apprehend, or cause to be appre- hended, by word only, any person committing a felony*, or breach of tlic peace, in his presence. 1 Ilnle 86. And see 34 Edw.2. e.l. So the skeriffy and the coroner, may apprehend any felon within the county, without warrant. 2 Hale 87. 88. 4 Bl. Com. 292. So also the constable may arr«^st any one for a felony or breech of the peace, committed in his view, and carry him before a justice of the peace. And in case of a felony actually committed, or a dangerous wounding whereby felony is likely to ensue, he may also, upon probable suspicion, arr^'st the party, notwithstanding the suspicion arise not in his own mind, but in that of some other person, who communicates it to the constable. But in this last case he ought to inquire scrnpuli)iisly into the causes of the sus- picion ; for though he cannot do this upon oath, it may reasonably carry over the sns[)icion to his own mind. 2 Hale 91. And although it should afterwards appear that no felony lias been committed, yet he may justify an arrest without a warrant on a charge of felony made by another pers(m, on reasonable cause of suspicion. — Samuel v. Par/ue 359. Or even if, without any charge, the constable himself has reasonable cause of suspicion. Becl'ivith v. Shilby. Q B. S- C. G35. ' And if one menace another to kill him, and complaint be made to the constable forthwith, t'»e constable may (in order to avoid ihe present danger) arrest the oarty, and detain him till he can con- venientl}' bring him to a jutice of the peace; and this on the ground that it is the duty o'" the officer to prevent a probable felony, (2 Hale 88 ; or, accord'ng to Valton, c. 116. "§ 3.) even a probable battery or assault. Watchmen, who are appointed by the statute of Winchester, (13 Edw. 1.) to keep watcii and ward in all towns, from sun-setting to sun-rising, or such as are mere assistants to the constable, may arrest all offenders, and particularl} night-walkers, and disorderly persons, and commit them to custody till the morning. 2 Hah 98. \ 2E cc 2^ ^ ? Iltvtdoit* 37 ((■('HI' e made Q avoid n con- on the obable even a B^ privat* ptrtoni. Any privai§ perion^ who is present when any felony is com- mitted, is bound by the law to arrest the felon, on pain of fine and iuiprisonii^ent if he escape through his negligence. 2 Haw. 74. So where an in( ictment is found against a party, a private person may arrest Jie offender. Dalt. c. 170. ^5. 1 Haw* c. 28. ^ 12. 1 East. P. C. 301. A private person ma)r arrest any suspicious nightwalker, or n common cheat, in order lo take them before a justice. 1 Jones 249. Cro. Car. 274. 2 Rol. Ab. 646. The manner of making an Arrest. The parly arrested should have due notice of iho ofllcers' au- thority. 1 i/rt/f, 458. 470. 1 Haw. c. 31. ^ 49. 50. Fost. 310. Keh 136. But otherwise, if the officer and his business be known. Mnck" ally* s case. 9. Co. G9. Pew'' £ case. Cro. Car. 183. Andlhi* will apply as well to a special bailiff as to a known oflicer. 2 Russ. 787. After a due notification to the party, a hn\\\((juraius et cognitus (sworn and known) acting in his own district, need not shew the warrant by which he is constituted bailiff. 1 f/a/e, 45^, 461. 583. 9. Co. 69. Gordon's case. 1 East. P. C. 315; or, as it seems, the particular warrant directed to him to execute, 1 East. P. C. 315. But if he acts out of his precinct, and is not sworn, or common- ly known, he must then shew his warrant, if demanded. 1 Hale. 459. Fost. 320. If the constable has no authority, a notification of his authority becomes more essential. In this case, it seems that the production ot his staff of oilicc, or any other known ensij^n of authority, will be sufficient. 1 ilale 400. ct. scrj. Fost. 310. Kcl. 60. 115. 1 Russ. 738. An arrest in the night is good, both at the sell of (he king and of the subject, in order to prevent the escape of the part}'. 9 Co. 66. Bare words will not make an arrest, without laying hold on the person, or otherwise confining him. But if an officer comes into a room, and tells the party he arrests him, and locks the door, this is an arrest. \ Sall(. Id. 2 llaiv. 12'^). Cos. tcrnp. Hard. 301. Doors and windows may be broken open if necessary, in order to make an arrest nnd«;r a magistrates warrant, or any other criminal process : but in this case, the officer must first signify to those in the house the cause of his coming, and request admittance. 2. Haw. 86. I Ha/c. 450. 2 Hole, 117. Halt. c. 169. Fost. 520. 1 East. P. C. 31.». ___. -.- ..jiiaa— i—'Ti'i !■- *! 99 i^tfret ' AnJ SIS ail ofBc-or may break open a man's own house, so may he break open the hoti^e of a stranger, in order to take hhn ; but the parties must be there, if not, the officer will be a trespasser. il Hale, 117; unless acting under a magistrates warrant. Where one is l^noicn to have committed a treason or felony, or to have given another a dangerous wound — then if pursued by an officer, or even a private 2)crson, with or without warrant, doors may be broken to apprehend him.' I Hale. 459. 2 Haw. c. 14. ^ 7. Fost. 320. Upon any process ofconicmjJt from courts of justice, the officer charged with the execution of such process, may break open doors, if necessary, to execute it. Burdctt v. Abbott. 14 East. 157. So the like may be done upon a capias ut lagatum^ a capias pro Jinct or upon an habtre facias possessionem, or where a forcible entry or detainer is found by inquisition, before justices of peace, or appears upon their view. 2 Haw. c. 14. %Q. 4 Com. Dig* bit. Forcible entry (1). G.) Or on the warrant of a justice for levying a penalty on a con- viction grounded on any statute, which gives the whole or any part of such penalty to the king. .2. Haw. c. 14. ^ 5. But in this case the officer, if required, raus't shew the warrant, and sufier a copy to be taken. 27 6'. 2. c. 20. So where there is an affray in a house, in the view or hearing of the constable, and miinslaugliler or bloodshed is likely to ensue, he may break open doors to keep the peace. 2 Hale. 95. 1 Haw. 137. 2 Hati\ 67. So if there be a disorderly drinking or noise in a house, at an unreasonable time of night, especially in inns, taverns, or ale- liuiises, the constable, or his watch (demanding entrance and being refused) may break open the doors, to see and suppress the disor- tler. 2 Hate. 95. So wherever a person escapes from a lawful arrest, and shelters himself in a house, the officer may break open doors to retake him, whatever the cause of arrest may have been. 2. Haw. 87. But if it be upon a fresh pursuit, the officer (it seems) should have a war- rant. 1 East. P. C. 324. And in any of the above cases where the officer enters a house, and the doors are locked upon him to prevent his egress, he may break them open to regain his liberty. Ibid. "'^i ■.-J What is to be done after making an Arrest. When the arrest is by warrant, the officer who has made it should forthwith bring tlie party before a magistrate, according to the direction of the warrant. If the warrant be to bring the defen- dant before mty justice of the district, then the officer may bring ^V0on* 59, him be/are whut justice he thinks fit ) for the defendant himielf has .10 election in the matter. 1 Hah. 582. 2 lb. 112. Ifthe time ba unseasonable, as in or near the night, whereby he cannot attend the justice ; or if (here be danger of a present rescue ; or if the party be sick, then the constable may keep the party in a house, or any place of sp^^'irity, til! the next day, or such time as it may be reasonable to bring him. 2 Hah. 120. And after the oflicer has brought him to a justice, yet he is still in custody, till the justice discharge, or bail, or commit him. Ibid, But the constable need not return the warrant itself, but may keep it for his own justification, in case he shou!d be questioned for what he has done upon it, Lid. Raymond. 1 196. (For the form of warrant, see Warrant.) ARSON. ' Are ON, at common law, means the malicious and wilful burning of a house, or out-house, of another man; ond being an ofTenre of very great malignity, was always considered of the degree of felony. 1 Haw. 105. By Statute. . . ' The Statutes relating to this offence ar3 the 23 H. 6. c. 1. 25 H. 8. c. 3. 4^5 I'k. M. c. 4. 22 ^ 23 C. 2. c. 7. all of which are now obsolete. By Stat. 6 An. c. 31. if any servant through negligence or carelessness shall sot fire to any dwelling-house, he shall forfeit JCIOO. and in default of payment be committed to hard labour for eighteen months. By the 9 G. c. 22. commonly called the bl^ck act, (the provi- sions of which are more fully set forth under that tttle). If any person shall set tire to any house, barn, or out-house, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood, he shall be guilty of felony without benefit of clergy. And now by the 3 JV, 4. ^ \ 1. it is enacted, that if any person shall set fire to any church or chapel, or to any building commonly used for religious worship, or to any house, stable, coach-honse, out-house, ware-house, ofiice, shop, mill, malt-house, barn or gran- ary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively, shall then be in tUe possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, or any body corporate, or company of persons, every such offender shall be guilty of felony, aud (hail suffer death : and accessories before the fuel shall be punishabU as principals. * .- 'i b -I f\' 1 It i 1 ■1 a '\ n til' i 4B .ni7^i mvnon. * ♦ „»•.. Is' Information aga'tntt a person for burning a Darn, rU lioinc District. > The inrormation and complaint of A. B. o f to wit. ) in the said District, yeoman, taken on oath this ■ day of- in the year of our Lord one thousand eight hundred and thirty-four, before me J. P. Esq. one of his Majesty's justices of the peace in and for the said district. The said infor- mant saith, that about the hour of three o'clock this morning he discovered that his barn adjoining to his dweiiing-house, situate in the said township, was on fire, and that from the information he hath received he hath good cause to suspect, and doth verily suS' pect that the same was wilfully and feloniously set on fire by one C. D. of labourer, with intent thereby to injure this infor- mant, wherefore he proyeth a warrant against the said C. D. and that he may be dealt with according v^t law. Sw<>«T., &tc. Warrant thereon. ; r '.r«f. To the Constable of in the Home District. * ' Home District, > Whereas A. B. of hath this day made corn- to wit. ) plaint on oath, before me J. P. esq. one of his Majesty's justices of the peace for the said district, that &c. (here state the. offence as laid in the information). These are therefore to command you forthwith to apprehend and bring before me, or Bome other of his Majesty's justices of the peace for the said dis- trict, the body of the said C. D. to answer unto the said charge nnd to be furtlier dealt with according to law. Herein fail you not. Given under my hand and seal, the — — day of — — in the year of our Lord 1834. JF'or Commitment for further Examination — see post Justice of T,f,» ;i I the Peace. Warrant of Commitment for Trial. — (Archbold) Home District, ) J. P. Esquire, one of his Majesty's justices of to wit. 5 tli6 peace for the said district, to the constable of in the said district, and to the keeper of the common gaol at Toronto, in the said district. These are to command you the said constable, in his Majesty's name, to convey and deliver into the custody of the keeper of the »aid common gaol, the body of C. D. charged this day before me the said justice, on the oath of A. B, of yeoman, for that he the said C. D. on or about the — — day of instant, unlaw- fully, maliciously and feloniously, did set fire to a certain barn, of him the said A. B. situate in the said township of with intent thereby then and there to injure the said A. B. against the form nttitun of tUf )9tiicr. 41 oflht itBtut« in that case made and provided. And you the said keeper are hereby required to receive the said C. D. into your custody, in the same common gaol, and him there safely to keep, until Jie shall be thence delivered by due course of law. Herein fail you not. Given under my hand and seal, the day o f in the year of our Lord ^— ARTICLES OF THE PEACE. Whenever a person has just cause to fear that another will burn his house, or do him or his wife or children, a corporal hurt, or unlawfully imprison any of them, or that he will procure others to do so, he may exhibit articles of the peace against the person from whom he apprehends such mischief, either in the courts of chancery or king*8 bench, or before a justice of the peace ; and such court or justice is bound to require the party to find sureties to keep the peace towards the exhibitant, upon the latter making oath that he is actually under such fear from the other person, and that he has just cause to be so, and that he does uot require such surety out of malice or vexation. 1 Haw. c. GO. ^ 6. 7. And all peifsons whatsoever under the king*8 protection, subjects or aliens, have a right to demand surety of the peace. A wife may demand it against her husband, and a husband against his wife. Jb. <^ 2. 4. Sureties of the peace may -be required from any person what- soever under the degree of nobility : but infaniSt and married womerit ought to find security by their friends, and not to be bound themselves. lb. ^ 5. When the articles are exhibited before a justice of the peace, the party, if present, may be immediately committed, unless he offer sureties; but if he be absent, the justice cannot commit him for not finding security, until he has been required, and has re- fused to do so ; and the warrant, in that case, must shew the cause for which it is granted, and at whose suit. 1 Haw. c. 60. ^ 0. Jiex. V. WilTcs. Ibid. (5.) • ^ ^ . '^ The proper course in such a case would be, for the justice to take the information, upon oath, of the party complaining, with a statement of the particular facts or menaces that induce the com- plainant to fear some injury to himself or property : upon which, the justice may issue his warrant for bringing the party before him ; upon his being brought before him, he may then either bind ^ him over with sufficient sureties to keep the peace, or to appear at the sessions. If bound over to appear at the sessions, he should also be bound to keep the peace, in the meantime, towards the party complaining : and this is the common form of the precedent. 1 Haw. c. 60. ^16. It ii better, however, for justices to bind I '.I 49 »vtitUfi Of tt)f «f ate. •r over the parlies to keep the peace a reasonnblo time, to b« itipu- lated in tiiu recognizance, rather than to appear at the lessiont, where liie oflendcr would be obliged to find fresh security, without any new ofience being alleged ; and for non-appearance, his re- cognizance would be forfeited, except reasonable cause shewn, by sickness or otherwise; and this opinion is corroborated by a recent decision in the court of king's bench, which determines that a jus- tice of the pence is authorised to take surety for the peace for a limited time, (c. g. two years) according to his discretion, and that he need not bind the party over to the next sessions. 2 B. and A. 278. A warrant for (he peace must be executed by the person only to whom it is directed, who is authorised to break open any door on being refused admittance uud stating the cause of his coming. 2 Haw. c. 14. ^2. If the warrant is gpecial, the party must he carried before Uie justice granting it, and no other ; but if general, the offender may be taken before any justice, and the officer may take him to prison on refusing to give sureties before such justice. 1 Haw. c. GO. <^ 13. If the accused, on being apprehended, refuse to obey the warrant, or to find sureties, the officer may, without further warrant convey him to gaol : but the warrant should so direct, otherwise it is prudent to bring him before the justice, by whom, on refusal to find sureties, he may be committed without further warrant. 2 //. H. 112. Dalt. c. 118, An officer not doing his duty, may be indicted and fined at the sessions. Dalt, c. 118. If llie sureties are insufficient, the jus- tice may compel the party to find better. C. 116. 119. But if the sureties should die, the principal is not compellable to find others, their executors or administrators being liable. The recognizance may be forfeited by doing any actual violence to the person of another, or causing it to be done by his instiga- tion. Da?t. c. 121. A justifiable assault is no forfeiture. 1 Haw. c. 60. § 23. 24. If the recognizance is made to keep the peace generally^ it shall be deemed to be during the parties life ; and as such recog- nizance cannot be discharged, it should not be so granted on slight grounds. Dalt. c. 1 19. 120. But it is discharged upon the death of the king, or of the principal. 1 Haw. c. 60. <^ 17. And it has been held that the recognizance may be discharged on the release of the complaining party. lb. *^ if the recognizance is to keep the peace towards the king and all his subjects, the sessions may discharge it, unless on procla- mation some person appears to demand sureties upon warrantable cause ; but if it is made to keep the peace with a particular person, MKtitUu Of Ifif 9t«ce* 43 tt|o tcflsioiii will not discharge It, thoagb the person requfring It do not appear; and the court may bind over the party to the iiexi seiiiont. Dalt, c. 120. l > If the party accused be in prison for wart of suretiei, on the death of the party demanding the peace, he shall be released, or if he offers sufficient surely while in prison. Dalt. e, 118. See also, tide — SURETY FOR GOOD BEHAVIOUR. Information to require Surety of the Peace and good behaviour, (ToONE.) Home District, ) The information and complaint of A. B. of to wit : 5 taken on oath before me, J. G. Esq. one of his Majesty's Justices of the peace in and for the said district, this — — day of — — 18 — , who says, that C. D. of ■ yeo- man, did on the •■ day of threaten to beat f Xrijf/, maim, fyc. at the fact may happen to be) this complainant, and that from the above and other threats used by the said C. D. towards this Complainant, he, this complainant, is afraid that the said G. D. will do him some bodily harm, and therefore prays that the said G. D. may be required to find sufficient sureties to keep the peace and be of good behaviour towards him, this complainant. And the said A. B. also saiih, that he doth not make this complaint against, nor require such sureties from the said G* D. from any malice or ill will, but merely for the preservation of his person from injury. A. B. Sworn before me. Warrant thereon. tt:^ » To the Gonstuble of' in the Home District. Home District, ) Forasmuch as A. B. of yeoman, hath per- to wit. > sonally come before me, J. G. Esq. one of his Majesty's justices of the peace in and for the said District, and hath this day taken his corporal oath, that C. D. of —— yeoman, did on the ■ day of — — at threaten to beat, &c. (or a* the case may be) the said A. B. and that from the above and other threats used by the said G. D. towards the said A^ B. he, the said A. B., is afraid that the said G. D. will do him some bodily harm, and hath therefore prayed of me, the said justice, security of the peace and good behaviour to be had or granted to him the said A. B. against the said G. D. These are, therefore, to require you, in the name of our said lord the King, immediately upon sight hereof, to bring the said G. D. before mc, to find sufficient sure- m' *t itif v 'm s .;^. to wit. > man, is now brought before me J. C. Esquire, one of his Majest'y justices of the peace in and for the said district, and is by me required to find suAicient sureties to be bound with him in a recognizance for his personal appearance at the next ge- neral quarler sessions of the peace, to be holden in and for the said district, and in the mean time to keep the peace and be of the good behaviour towards the king and all his liege people, and especially towards C* D. of ■ ■ in the said district yeoman, and whereas lie the said C. D. hath refused* and doth now refuse before me to find such sureties. These are therefore in the name of our «aid * A neglect or inabilifj to find surelie* is the same as « rtfuaal at lair, *-^ ''' ]uar(er ses- strict, then me that he, I behaviour le, and es- d and seal, "It in . I siotu. ii ' ' ' the above iral quarter le District, )e then and also do and the court ; f the good and especi- zance to be \out apptar- t the above behaviour ly towardu f need be) uli force. t Toronto, slricl, yeo- Esquire, lid district, ound with le next ge- ar the said f the good especially vhereas he ore me to f our eaid , ^tiJ nt. nxtitUn of tib^ ^tHtt. 45 lord the King, to command you the said constable forthwith to convey the said C. D. to the common gaol of our said lord the King at Toronto in the said district, and to deliver him to the keeper thereof there together with this precept, and I do in the name of our said lord the King, hereby command you the said keeper to receive the said C. D. into your custody in the said gaol, and him there safely to keep until he shall find such sureties at aforesaid or be otherwise dischafged in due course of law. Given under my hand and seal the ■ day of' in the year of our lord 18— T'heform of a supersedeas to be used where the defendant finds surstp before the warrant is executed upon him. J. C. Esquire, one of the justices of our lord the King, assigned to keep the peace within the home district, to the sheriil' of the said district, and to the constables and others, the faithful ministers and subjects of our said lord the King within the said district, and to every of them, greeting. . ^ ^ , Home District, > Forasmuch as C. D. of iii the said district, to wrt. 5 yeoman, hath personally come before me at , in the said district and hath found sufficient surety, that is to say, E. F. of yeoman, and E. H. of yeoman, either of whom hath undertaken for the said C. D. under the pain of jCi'.O, and he, the said C. D. hath undertaken for himself under the pain of i!40, that he, the said C. D. shall personally appear at the next general quarter sessions of the peace, to be holden in and fur the said district, then and there to answer to articles of the peace to be exhibited againt him by A. B. of yeoman, and to do and receive what shall be then and there enjoined him by the court, and in the mean time to keep the peace and be of the good behaviour towards the King an ' ill his liege people, and especially towards the said A. B. Therefore on behalf of our iiaid lord the Kinc:, I do command you and every of you, that you utterly forbear and do cease to arrest, take, imprison, or otherwise by any means for the said cuuse, to molest the said C. D. and if you have for the said occasion and for none other taken and im- prisoned him the siid C. D., that then him you deliver or cause to be delivered and set al liberty witliout further delay. Given un- der my hand and seal this -.—— day of _. he. Mt ( <»... Release of the Surety for the Peace^ Sfc, Home District, > Be it remembered, that A. B. of to wit : i said district, yeoman, on the .».— in the .. year of the reign of our sovereign lord William the day of- tii the fourth, came before me J. C. Esq. one of the justices of our said y,h 46 l!lrttolf of t9r Sleote. lord the King assigned to keep the peace within the said district, and there remised and freely released to C. D. of in the said district, yeoman, the surety of the peace and good behaviour by him the said A. B. before roe prayed against tlie said C. D. Given under my hand and seal, the . day of in the year of our Lord 18 — . J, C. Or, if it is before another Justice, then say — The surety of the peace and good behaviour which he has against C. D. of in the said district, yeoman. Given, &c. Discharge of one committed for tcant of Sureties, J. C* Esq. one of the justices of our lord the King assigned to y> keep the peace in the home district, to the keeper of his Majesty's gaol at Toronto, in the said district — Greeting : Home District, > Forasmuch as C. D. in the prison of our said to wit. 3 l^'i'd the King, in your custody now being, at the suit of A. B. of — — . in the said district, yeoman, for the want of his finding sufficient sureties, &c. (as in tht former pre- cedents of a supersedeas.) Therefore, on the behalf of our said lord the King, I do command you, that if the said C. D. do re- main in the said gaol for the said cause, and none other, then yQu forbear to grieve or detain him any longer, but that you deliver him thence and suffer him to go at large, and that upon the pain which will fall thereon. Given under my hand and seal, this day of 18—. J. C. Form of Articles of the Peace. Home District, to wit. ] C. D.wifeofE. D.of, in the said district. labourer, prays surety of the peace against the said E. D. her said husband, for fear of death or bodily injury. First — This informant on her oath, saiih that she intermarried with her said husband about years ago, since which time lie hath often in a cruel, barbarous, and inhuman manner, beat, abused and ill treated this informant, and frequently threatened to take away her life. > ,i is Secondly — This informant saith that on the — — . day of last past, her said husband in a violent passion, (state the parti- cular acta of cruelty.) Lastly— This informant saith, that she is actually afraid her laid husband will do her some bodily injury, if not murder her, ihould the return home again to him ; and saith that she doth not fHanauU unV iSsttcts. m i, make this coinplaint against lier said husband out of any hatred, malice, or ill-will which she hath or beareth towards him, but pure- ly for the preservation of her life and person from further danger* Articles of the peace should have the signature of counsel* ;. ASSAULT AND BATTERY. -. r An assault is a forcible attempt to do a corporal injury to another ; a blow, however trifling, is a battery ; every assault, however, ift not a battery ; but every battery necessarily includes an assault*— > 1 Haw. P. C. 263. So striking at another, or even holding up a fist in a menacing manner, will amount to an assault.—-! Haw- C' 62. All unlawful imprisonment is also an assault in law.— 1 Haw» C. 60. An assault in some instances may be justified : Thus a party may justify an assault, molliUr maims imposuit, in defence of hii goods, his wife, father, mother or child, and a vife in defence of her husband. — 1 Ld. Ray. 62. A servant may also justify an assault in defence of his master ; but doi'btfnl whether a master may do so in defence o( his servant. 1 Sft.:, '07. So ■ ' xnay a master reasonably correct his apprentice or ser- vani , ^i.u a master his scholar: but immoderate correction, or with an unlawful instrument, will constitute an assault.— 3 Salk. 47. A common assault is punishable as a misdemeanor ; and the punishment usually inflicted is fine, imprisonment, and the finding of sureties — 4 Bl. Com. 217. And by (he summary punishment net 4 Wm. 4. c, 4. % 1* one justice may hear and determine the offence, and fine the of- fender in a sum noi exceeding j£5 — (see further mmmary ^unith* ment.) Aggravated Assaults Are such as are committed by persons with intent to commit feh ony or some other illegal act; assaulting a magistrate or constable in the execution of his duty; or a servant his master; and the like. And any servant assaulting his master or mistress, may, upon conviction before /tt'o justices, and upon the oath of two witnesses, be imprisoned for a year, or less. S Eliz. c, 4. ^ 21. Also, any person assaulting or challenging another for money won by gaming, shill forfeit to the King all his goods, and be imprisoned two years. 9 Ann, c. 14. § 8. Affidavit to ground a Warrant for an Assault. Home District, 7 A« li. of yeoman, maketh oath and saitb, to wit. I that on the -..-i— day of — instant, at -— — ;■( 48 mnuunu t'^^ natuvii. in the township of , C. D. of labourer, did violently assault and beat this opponent, by striking him with hi. flits several blows on the head, face, and other parts of his body, without any just or legal provocation. Sworn, 6cc. A. B. Warrant for an Assault. Home District. Tothe Constable of- Whereas complaint hath beer; made before me, J. P. Esq. one of his Majesty's justices of the peace in and for the said district, upon the oath of A. I. of in the said district, tailor, that A. O. of. aforesaid, butcher, did on the >~— — day of violently assault and beat him the said A. I. at aforesaid, in the district aforesaid. These are therefore in his Majesty's name to command you forthwith to apprehend the said A. O. and to bring him before me, to answer unto the said complaint and to be further dealt with according to Law. Given under my hand and teal the ~— day of— 18 — . Recognizance, (in the usual form). ?. , , The condition of this Recognizance is such, that if the above bounden A.O. shall and do appear at the next general quarter L ssions of the peace to be holden in and for the said district, and then and there answer to a bill of indictment to be preferred against him, for an assault on one A. I. and shall not depart the court without leave, then ihis recogni7.aQce to be void. Taken and acknowledged, &:c. Commitment for an Assault, for want of Sureties. To E. F. Constable of , and to the keeper of the Gommoii Gaul in the said District. Home District, > Whereas C. D. was llii? day brought before me, to wit. 5 ^* ^' ^^^* ^^^ ^^ '"^ Majesty's justices of the peace in and for the said district, and charged on the oath of A. B. with assaulting and beating him the said A. B. And whereas the said C. D. hath refused, (or neglected) although by me required, and doth refuse (or neglect) to find good and sufficient sureties, as well for his personal appearance at the next general quarter sessions of the peao to be held in and for the said district, to an- swer to an indictment to be then and there preferred against him for the said assault, as also in the meantime to keep the peace towards the said A. B. and all his Majesty's liege subjects.-— These are, therefore, in his Majesty's name, to command you, ! ; H 'ti ^fsonnU adiTi natttvv!* 49 /iolently h'u fists is body, A. B. Esq. one district, •, that A. of - resaid, in iy's name }. and to and to be hand and the above ^1 quarter itrict, and >referred lepart the I common efure mc, ces of tlie of A. B. lereas the required, sureties, kl quarter |ct, to an- linst him Ihe peace jbjects. — ind you, the said constable, safely to convey the said C. D. and deliver him to the keeper aforesaid, togeihei* with this warrant ; and you the said keeper, arc hereby required to receive into your custody ill the said gaol the body of the said C. D. and him there safely keep until he shall find such sureties, or otherwise shall be dis- charged by due course of law. Given under my hand and seal, Sec. Indictment for a Common Assault. Home District, > The Jurors for our Lord the King upon their *y to wit. S oath, present, that A. O. late of the township of ■ i'l the county of in the Home district, butcher, on the — — du»' of in the — — year of the reign of our Sove- reign Lord iViiliain the fourth, with force and arms, at the town- ship aforesaid, in the county and district aforesaid, in and upon one A. I. i.) the peace of God and our said Lord the King, then and there being, did make an assault, and him tlie s .id A. 1. then and there did beat, wound and ill treat, and other wrongs to the said A. L then and there did, to tiie great damage of the said A. I. and against the peace of our said Lord the King, his crown and dignity. . ^ ^,i Inflictmevt for an Aggravated Assault. — (Archhold.) - • (Commencement as before) in and upoji one L N. in the peace of God and our Lord the King, then and there being, did make an assault, and him the said L N. then and there did beat, wound and ill treat, and that the said J. S. with both his hands, then and theae violently cast, flung and threw the said I. N. to, upon and against a certain brick floor there, and him the said I. N. in and upon his head, neck, breast, back, sides and other parts of his body, with both the feet of him the said J. S. then and there violently and grievously did kick, strike and beat, giving to the said L N. then and there, as well by such flinging, casting and throwing of him the said L N. as also by such kicking, striking and beating of the said 1. TT. a& aforesaid, in and upon the head, neck, breasts, sides, back and otiier parts of the body of him the said I. N. divers bruises, hurts and wounds, so that his life was greatly despaired of, and other wrongs &£c. (as before). , •». , ^ For Assaulting a Constable in the execution of his Office. (Commencement as before) in and upon L N. (then being one of the constables of the said township of in the district afore- said, and in the due execution of his said ofl!ice, then and there being) did muke an assault, and him the said L N. so being in the due OUI tHi *■«»■ ' ii'' * 50 mtmtttfi of ^nutmtlSp ^t* execution of his said oflice as aforesaid, then and ' there did beat wound and ill treat, and other wrongs, $ic. (as before). Add u count for a common assault. From this precedent an indictment may readily ba framed for an assault upon any other public officer in the execution of Ms office. Arch. MEMBERS OF ASSE3IBLY. By the 43 G. 3. c. 1.1.. after every prorogation and dissolution of the assembly, every member having attended is entitled to receive from the Speaker, a warrant signifying the time of such members attendance, and every member holding such warrant may demand of the justices of the district in which the county kc. represented by such member shall be, in their general quarter sessions, a sum not exceeding ten shillings a day, for every days attendance and ab- sence from liis place of abode, in going to or returning from his auendance, which sum it shall be lawful for the justices to levy by assessment, to be made on each and every inhabitant householder in the severaii parishes, townships, reputed townships, or places within the county or riding represented by such member, in the same manner and form as any assessment may now or hereafter be levied for any public purpose. , ♦ - ASSESSMEJNTS. By {Statute .^9 G. 3. c. 7. entitled " an act to repeal the several laws now in force relative to levying and collecting rates and as- sessments in this Province, and further to provide for the more equal and general assessment of lands and other rateable property throughoiu this Province, certain acts, viz. : the 51 (7. 3. c. 8. and (he 55 G. 3. c. 5. are repealed. By <§> 2. the following property is declared rateable, at the rate and valuation set forth after the first Monday in January, 1820. For every aero of arable pasture or meadow land....... " every acre ui uncultivated land, " every town lot situated in the towns of York, Kingston, Niagara and Queenston ** Cornwall, Sandwich, Johnstown and Belleville, ** every town lot on which a dwelling-house is erected in Brockville, being composed of the front half of lots Nos. 10, 11, 12 and 13, in first concession of the town ship of Elizabc'th'vowo, in the district of Johnstown,.. 50 25 30 s. 20 4 d. I II (t ti II i 51 did beat Add u dictment ic officer }lution of receive members y demand sented by 1 sum not • and ab- from bis o levy by useholder or places er, in the (reafter be le several >s and as- lUie more property \, 3. c. 8. It the rate }, 1820. s. d. 20 4 ^0 f5 il II (( II Vlt «l 12. Schedules of granted and leased lands shall be furnished annually by the Surveyor General, to the Dis- trict Treasurer, on or before the first day of July. <^ 13. All lands described in the schedule as granted or leased, shall be liable to assessment, whether occupied or not, and the collector having a warrant for this purpose, may enter upon late unoccupied lands and take any distress found thereon, and sell the same, as if the rate had been due by the then occupier. ^14. The treasurer of each district shall Ueep separate accounts for each township, and leave the same open to inspection, between the hours often and three, on the first Monday in every month, and take one shilling and three pence for such inspection, and no more. ^15. If the rates upon any lot shall be in arrear three years, the rates so in arrear shall be increased one-third; if in arrear for five years then one-half: - d if for eight years then doubled; and the said rates shall be M.eforward charged in double the amount. ^ IG. Township:. ..j': authorised to hold town meetings, shall be assessed with the township adjacent. ^17. An aggregate account shall ^t$^tnumtnt». 5S be tranimitted by the Clerk of the Peace to tlie liieuteiiniit Gover- nor. ^ 18. The Treasurer of the district (appointed by the general quarter sessions) shall furnish sufficient security, and may retain four per cent, upon tho amount in his hands. ^ 19. The Trea- surer's accounts shall be rendered upon oath, ut the respective get <;ral quarter sessions, and a certified copy transmitted to the Governor. <^ 20. The Treasurer shall be removable by the ses- sions at their pleasure. ^21. The following fees and no more, may be taken under this act ; — for warrant of distress, two shillings and six pence ; milage four pence ; selling and making return two shillings. ^ 23. The sum of twenty shillings io be paid to the Surveyor General for every schedule for each township, furnished by him, on or before the 1st day of July, 1820, and for erery supplemeotary schedule afterwards, the sum of two shillings and six pence, lo be paid by the Receiver General. \^ 23. 24. Limit- ing the continuance of this act, and giving the form of assessment roll, are both repealed by (he next statute. By Stat. 6 G. 4. c. 7. ^ 1. Reciting that it was expedient to make perpetual the 69 G. 3. except such parts thereof as are here- by repealed, and to render more certain the due collection of such rates and assessments, by providing for levying assessments in arrear, it is enacted, that the 23rd sec. of the above act shouhil be repealed. ^2. The grantee, owner, or occupier of any township block or parcel of land, or any parcel thereof, not surveyed by or under the authority of the Surveyor General, should, on or before the 1st day of July next, return to the treasurer of the dis- trict, a schedule of such lands, or so much as had been surveyed, designating same by numbers and concessions, or otherwise, ac- cording to any plan or map thereof, upon pain of forfeiling double the amount of assessment, yearly, uiiiil such return should be made. <^ 4. Such penalties to be recovered before ihr^^e justices, and levied by warrant of two justices , one half to the informer, and the remainder to the treasurer of the district, to be applied in the same manner as the assessments. <^ 5. And whenever any such schedule shall be returned, the treasurer shall enter the same in his books, in like manner as if the same had been returned by the Surveyor General ; and all the provisions of this act relative to the collection of rates and assessn^ents, arrears and penalties, shall apply to lands so returned. ^ 6. The Treasurers of dis- tricts shall report to the general quarter sessions, all lands upon which the assessments shall be eight years in arrear, after the first of July, 1828. (This clause has been repealed by the 9 G. 4. c, 3. ^ 9.) <§. 7. Upon such accounts being so made, the clerk of the peace shall issue a writ for levyinfjf the asicss- ments in arrear, directed to the Sheriff, by sale of a portion of the lands upon which the assessments arc chargeable, if no 54 mfi$mn(tnt»i' distress be ioiuid (hereon. ^ 8. Such writs shall be returnable at the third quarter sessions after issuing the same. <^ 9. The lands liable to sale shall be advertised by the treasurer, in the Up- per Canada Gazette, and in some newspaper within the district, within one month after rendering his account. <^ 10. Within one month after receipt of the writ, the sherifT shall advertise the lands in the U. C. Gazette, and in all the newspapers in his district, and the time and place of sale. ^11. .No sale shall be made in less than six months from the delivery of the writ to the sheriff, nor out of the township, unless thinly inhabited, and then in the township to which it may be annexed. <^ 1.^. The lands shall be sold by public auction, as follows: — The assessment in arrear shall be de- clared with the expenses of the writ ; and the person who shall offer to pny (he same for the least quantity or portion of the lands, shall be considered the purchaser thereof. <^ 13. The sheriflf shall begin the sale nt the front angle on that side from whence the lots are numbered, and measure backward, taking a proportion of the width corresponding in quantity with the proportion of such lot in regard to its length and breadth, according to the quantity re- quired to make the sum demanded; and at every subsequent sale of a portion of the same lot, shall take a tract of equal width as the former, measuring backward from the limit of the lot last sold. ^14. In every case where, from the position of the tract, the mode last mentioned cannot be pursued, then the sheriff may sell such portions of land as shall appear to him most for the interest of the proprietor. § 1 5. No greater interest in the crown or clergy reserves shall be sold than is posseessed by the lessees. '^ 16. The fherifl' may adjourn the sales at his discretion, and re-sell the lands not paid for. <§ 17. Purchasers may be let into possession on payment of assessment dues, but owners may resume their lands within twelve months after sale, upon repayment of taxes, costs, and 20 per cent, in addition to the purchaser. <^ 18. And if land not redeemed within the twelve months, the sherifl'may execute a conveyance in fee simple to the purchaser, according to the form marked B. in the schedule. <^ 19. Before conveyance executed, the sheriff shall register a certificate of such sale, in lieu of any memorial. ^ 20. Conveyances may be registered, on pay- ment of 2s. Gd. and no more. <§> 21. Treasurers neglecting to make returns for two sessions, shall, on conviction at the assizes, for- feit their office, and justices may appoint another forthwith ; and upon neglect of the justices, the Governor may appoint one during pleasure. <§. 22. Sales not to be avoided for any neglect in form, but (he parly grieved shall have his remedy by action. "^ 23. Monies received by the sherifl' shall be paid to the treasurers. ^ 24. A compensation of £5 shall be allowed to the treasurer for every account furnished under this act. ^25. 10s. to the clerk i ^mttmmtniti. 65 ol' the peace for cacli writ. >^ 2G. The sherilF may charge and levy a fee of 78. 6d. upon every sale, and retain 3 per cent, on the sales. ^ 27. The treasurers shall giye receipts for taxes paid. By Stat. 9 Cr. 4. c. 3 ^ 1. any person holding lands not re- turned upon the assessment roll of the township where he resides, may puy to the treasurer of the district in which he resides the rates due on such lands, with a compensation of £5 per cent, to the treasurer. '^ 2. Accounts shall be kept by the treasurers, and copies verified by oath, shall be transmitted annually, on the first of July, to the treasurers of the districts in which the lands lie, who shall at the same time transmit the amount received. <§> 3. The treasurer receiving such assessments shall credit the respective lots, and transmit receipts to the treasurer transmitting the amount. ^ 4. No greater accumulation than 50 per cent, shall be charged upon any lands on which assessments shall be paid on or before the 1st «fuly, 1829 ; and in all cases hereafter, fifty per cent, and no more shall be charged !n addition, where the assessments shall remain in arrear longer than four years. ^ 5. Arrears of assess- ments paid by (he first day of July 1829, shall be liable only to an increase of fifly per cent, on the amount due for the first five years. ^ 6. Treasurers shall not after the 1st July, 1829, receive taxes on lands in other districts, if they have been suffered to run in arrear for more than six years ; in such case the assessments must be paid in the districts in which the lands lie. <^ 7. No partial payment shall be received, when more than eight years assessments are due. ^ 8. imposes a penalty of £50. upon the neglect or omission of any treasurer in his duty, to be recovered before (he sessions, on the oath of one or more witnesses; one half to the informer; the other to the public accounts; and the justices in session shall ex- amine the accounts required to be kept under this Act, and ascer- tain whether the same have been transmitted, together with the monies, to the several district treasurers. <^ 9. repeals the 6. <§> of the 6 G. 4. c. 7. and enacts, that the duties therein prescribed and required to be done by the several treasurers, shall be performed by them at or before the general quarter sessions next after the 1st day of July, annually, and the dork of the peace shall proceed thereon in manner pointed out by the seventh clause of said net. ^ 10. In case of the erroneous description of any lot the owner may make oath before any one justice that the sum paid was for such lot and concession, specifying the same, to enable the treasurer to credit the same, '^ 11. And when from death or other causes, such affidavit caiujot be njadc, justices in scssiona arc rmpowercd to hear and determine upon such evidence as may be adduced, and 1 if in favor of the plainlifl', to order the treasurer to credit the lot according!)'. 1 V. l H ' 56 nfmn$mt%%U$. ^: l+s" UiicultivutcH. Ciillivufocl. .1 iN (I. ot" I -i^l or (>tlu!r(ifsitriiiiiioii (if i t piirt doacrii>B winch itis. No. ot'(/'i)MrosHion or othrr di'scription. Over Sixteen years uf ugc. Under Sixteen years ofugo. (B « Q Over Sixteen years of a(?e. II I 'i ■ I ': Under Sixteen years of ago. T^otiil iiinntvT ot'pprsoiia rrsiiteiit iti eiicli l''itiniiy. 3" 1= "^ 3 i'ovvn lot s lit K nijfHfon Toi onto JN iagara 6t Ctiu'eriHton jESO eacii. i I) (Jornvvull, Sandwicli, Johnstown &Bpilovi He, X26 eachT Do. in Uiockville, at £'iO. each. Nipinrf'd or hou'i'rl tinilier on two siili-s, one story. 'I j\dditioiipt tire-placca. 'l Frajned, unlleMwo stones. I Additional firc-placns. Wipmr rd t nnbcr, two gtorios. Additional tirc-plares. Framed, hnck or stone of one story, with n ot more than twolirn-placc'S. Additional firf-placcs. Framed, brick or stone, of two stories, with nut more _ than two fire-pl aces. Additional (ii'c-placop. w o a u fB Wronglit by wat e r, witli one pair of stoncg. Additional pair of Rtones. Saw Mills. iVJcrch.-vnt Shops. Store Houses. Sto ne llo raos fo r covering Ma res for h ire or pain. llorsos of throe years old and npwarSs. Oxen tour year s old and npwardsT MilclTCmvs. Borned Cattl e from two to four years old. (J|(is(! Carriages with four wheels, kept for plea'titore. >^ i '^ ^ Cb ['Imtons or other op en carriages, kept for pleasure only, 4 wheclsT Curricles , gi gs or other carriages with 2 wheels , kept for pleasure, V V^aggoi is kept for pleasure. Kate per l^ound. H 1> m 'frii. •4 Dis tricj genj meii inaj< this I are hav^ ladKiDiri^mrnto* 57 District, of- Form of Writ to Silt. 6 O. 4. c. 7. A. - > To the Sherin'of the District of *5. 3 ^ •^ Whereas, by the account rendered by the treasurer ofthe said dis- trict of to the justices ofthe peace, for the said district, in general quarter sessions, assembled, according to the act of parlia- ment of this province, passed in the sixth year ofthe reign of his majesty King George the fourth, entitled, (here insert the title of this act,) it appears that the assessments or some part thereof which are imposed upon lands by the several statutes of this province, have been suflered to remain in arrear beyond the space of ei<^'ht years, upon the lots or parcels of land hereinaftor mentioned, and that the said lots or parcels of land stand respectively charged with the sums herein set forth, that is to say. (here state the lots or parcels of land with the sum charged against the snme, in t!ie trea- surer's accounts so remaining in arrear, up to the >xpirat^!n of th last year before such account was rendered.) These are then fore, in his majesty's name, to command you to levy the sevi trJ sums of money herein mentioned, by sale of such por^'ou ofthe lands on which the said assessments are resipectively (hat red, as may be sufficient for that purpose, together with the ftes allowed by the said act, passed in the fourth year of the reign of King George the fourth, to be levied on this writ, duly observing the directions of the said last mentioned act, in respect of such sale, provided there be no distress upon the said lands respectively, from which the said several sums, or either of (hem, may be made. — And if there be such distress then thai you levy the snme by such distress, together with such fees as aforesaid, rendering the over- plus, if any there be, to ii»c owner thereof. And whatever motiiei; you shall levy by virtue of this writ, have before the court of gen- eral quarter sessions ofthe peace, in and for 'he said district, which shall begin and beholden on the day of next, together with this writ. Form of Sheriff's Deed. 6 G. 4. c.7. . , •• • ..v^ r-; ■,-. ■ JJii These arc to witness that in considcrallon of the sum of paid to me by A. B. of .. . being the purchasrr at public auc- tion ofthe parcel or tract of land hereinafter mentioned, sold to pay assessments, under a writ to me directed, according to the law in that behalf, I, C. D. Sheriff of the district of do, by these presents, grant, bargain, and sell, unto the said A. B. hi$ heirs 58 ^mt»novs$, $ct. ^» :l 1 '. • ' -i 'a < and assigns, (describe the parcel of land sold,) to have and to hold the premises hereby bargained and sold, and all benefit and ad- vantuge thereto belonging, unto, and to the use of the said A. B. his heirs and assigns for ever. — In witness whereof, I have hereto set my hand and seal of office, this i day of in the year of our Lord , > ., , ; uif i^ t.^ - .'■ • >■!-•■ _;.i.;;^ .'.rvbusf 'jn ■ ASSESSORS. M , ; ,. -M :xj>mn':^i^,^ .n By 33 G.3.C. I. ^ 3. two Assessors shall be chosen by the inha- bitant householders, at their annual town meetings, who shall assess all such rates and taxes as shall be imposed by any act or acts of the Legislature. ^ 8. The constable presiding at such meeting shall communicate a list of the town officers to one of the jiisiices who signed the warrant for the town meeting, and who may administer to the persons so chosen the following oath of office. Yon, A. B. do promise and swear, that you will faithfully, dili- gently, and justly serve and perform the office and duties of for according to the best of your abilities. So help you God. And any person so chosen refusing to take the oath for seyen days after such nomination, shall forfeit 40s. "^ 9. By the 59 G. 3. c. 7. the duties of the assessors are further defined ; (See- ante Assessment) and by "^ 6. the assessors are en- titled to receive from the treasurer, £4. per cent, upon their respective collections. See also, post "Toton OJicerSf^* for re- covery of penalties against town officers, t:.-' - • rf';/ ASSIZES. '>i( .(ST By the 2 G. 4. c. 1. ^ 27. it is enacted, that it shall be lawful for the Lieutenant Governor, &z;c. to issue yearly, in the vacation between the michaelhias and trinity terms, such commissions of assize and nisi prius into the several districts, as may be necessary for the purpose of trying all issues joined in the said court, in any suit or action arising in the several districts of this province; and that when a suitable communication by land shall be opened from the city, town or place, which shall be the seat of government, into the respective districts, and the circumstances of the province may require it, it shall be lawful fur the Lieutenant Governor likewise, to issue yearly, in the vacation between the hilary and enster terms, such commissions of assize and nisi prius, into each of the several districts, for the trijil of all issues joined as aforesaid. i Se to pr< trial Se< make them other their such such cour of she ^ttAftiTier* > ( ; 59 f Sec. 28. And nothing in this act contained shall be construed to prevent the issuing a special commission or commissions for the trial of ofTenders upon extraordinary occasions. Sec. 31. The Sheriffs of the several districts are required to make return of all writs of nisi prius, which shall be delivered to them or their sufficient deputy, before the chief justice, and every other judge assigned to execute such commissions, and shall give their attendance upon such judges, as well for the returning of such tales de circumstantibus, as shall be prayed for the trial of such issues, as for the maintenance of good order in the King's court, and for the doing and executing all oilier things to the office of sheriff appertaining. .;> •'- .(-'■• -.4 -J'i ATTAINDER. An Attainder is the stain or corruption of the hhod of a criminal capitally condemned, and is the immediate and inseparable con- sequence, by the common law, of pronouncing sentence of death against him, he being then called attaint attinctus — that is. stained, or blackened. 4 Bl. Com. A person attainted is no longer of any credit or reputation ; he cannot be a witness in any court, neither is he capable of per- forming the fiinctions of another man ; for, by a sort of anticipa- tion of his punishment, he is already dead in law. 3 lust. 213. 4 Bl. Co;«. 380. Indeed, it was formerly liolden, that any one might as lawfully kill a person attainted of treason or felony, as a wolf or other wild beast; though now, a malicious killing of any such person, there is no doubt, would be murder. I Haw. c. 28. § 8. Ibid. €.31.^15. The attainder commences upon the judgment of death, or jiulg- mcnt of outlawry on a capital crime. 4 Bl. Com. 380. But attainder dots not follow until ajlcr judn^ment. Ibd. .. The immediate consequences of attainder ucie the forfeiture of all the real and personal estates of the parly attainted, and the corruption of his blood both upwards and downwards ; so thai uu attainted person could neither inherit lands from his ancestors, nor retain those he was already in possession of, nor transmit them by descent to any heir. By an attainder for kifxh treason, a man forfeits to the King all his lands, Sec. 2»> 11. 8. t. 1,3. 3.5 H. 8. c. 20. ; and sec 4 B/. Com. This forfeiture relates back to tlie time of the tr-'ason comniit- fcd, so ns to avoid all iniermediaio acts. A vvif j\^ dower is ex- pressly forfeited by 5 vV 6 iuVtr. 6. 60 m%%Ktion». Piif w By 7 Ann, c. 21. it was enacted, that after the death of the then pretender, no attainder for high treason should extend to the disiiilieriting of any heir, nor to the prejudice of any person other than (he traitor himself: by which, says BlacJcaionet the law of forfeitures for high treason would by this time have been at an end, had not a subsequent statute (17 G, 2. c, 39.) intervened to give them a longer duration. By this statute, the operation of the statute of Ann was still further suspended, till the death of the sons of the pretender. 4 Bl, Com. 384. In a certain kind of treason, however, namely— >that relating to tlie coin, it is provided by tlie 5 Eliz, c. 11. and 18 Eliz. c, 1. that it shall work no forfeiture of lands, save only for the life of the oflender, and that it should not deprive the wife of her dower. See 8 cV 9 JV. 3. c. 26. and 15 ^ 16 G, 2. c. 28. Ill petit treasoji, and felony^ the offender forfeits to the King nil his chattel interests absolutely; and the profits of all estates of fretiiold during life ; and after his death, all his lands and tene- ments in fee simple, (but not those in tail) for the space of a year and a day. 2 Inst. 37. 4 Bl. 385. Tlie forfeiture relates back to the time of the offence committed, so a- to avoid all intermediate acts. 4 Bl, Com. 385. 2 Haw. c. 40. ^ 17. - "; Lands are only forfeited upon attainder, but goods and chattels upon conviction. The forfeiture of goods has no relation back- wards; those only which a man has at the time of his conviction, are actually forfeited. Therefore, a traitor or felon may, bonajide, sell any of his chattels, real or personal, for the sustenance of himself and family, previous to conviction: but not if they be collusively, and not bona fide parted with, and the object of the transfer be merely to defraud the crown. 13 Eliz, c. 5. 3 Inst. 232. 2 Haw. c. 49. '^ 33. 4 Bl. Com. 388. ' . By 3 JV. 4. c. 5. entitled "an act to take away corruption of blood in certain cases," it is enacted, that no attainder for felony, after the passing of this Act, except in case of high treason, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person other than the offenticr, during his or her life only; and it shall be lawful for any person to whom the right in any lands or tenements, after the death of such offender, would have appertained if no such attainder had been, to enter into thy same. • - • = .^.v AUCTIONS. By 58 G. 3. c. 6. every auctioneer shall take out a license ; and by <^ 2. pay for the same, annually, £5, By ^ 4. any person negl in C| I . eatb of the ttend to the erson other the law of been at an tervened to peration of le death of relating to Eliz, c, 1. the life of her dower. > the King 1 estates of } and tene- e of a year committed, 2 Haw. nd chattels tion back- onviction, bonajide, enance of f they be ect of the 3 Inst. option of or felony, eason, or extend to } right or )r her life i right in r, would liter into ise ; and y person Mntvtfoiu utiiuit 61 1 i i neglecting to take out such license on or before the 5th January in every ye^r, and continuing to exercise the trade of an auc- tioneer, cr who shall neglect to exhibit in a conspicuous manner at hia auction room his name and trade as such auctioneer, shall, upon the oath of one or m' re witnesses, other than the informer, for each and every ofTence forfeit and pay £20, to be recovered before any three justices, to be levied by distress and sale, with reasonable costs; and in default, commitment to the common gaol of the district, for any time not exceeding six montlis. <^ 9. One moiety shall go to the province, and the other to the informer. ^ 12. Actions must be commenced within six months. <^ 13. This act continued in force four years, and to the end of the next session, and was continued by 4 G. 4. c. 17. and further continued for four years by 9 G. 4. c. 10. and re-continued for four years by the 4 W. 4. c. 41. For the forms of proceeding to recover penalties under this act, see " information,'* '* summons," and ** conviction." AUTREFOIS ACQUIT. The plea o( Autrefois Acquit, is a plea by a crimlnnl, that he was heretofore quitted of the same treason or felony ; and h grounded upon an universal maxim of the common law of England, that no man shall be brought into jeopardy of his life twice for the same offence. 2 Inst. 213. 4 Co. 40. 2 Haw. c. 35.% I. The whole of the record of acquittal must be set forth in the plea, in order that the court may see whether the prisoner was le- gitimo modo acquietatus. R. v. JVihley, I. M. Sf S. 183. The plea must plainly show that the party was lawfully acquitted by verdict; for if no bill was preferred against the prisoner, or even no true bill found by the grand jury, so that at the end of the sessions he is quit by proclamation and discharged, he may still be afterwards indicted ; for this amount > to no acquittal. 2 Hah, 246. But if an erroneous judgment be reversed by writ of error, the party may, in that case, be indicted de novo. 2 Hale, 247. And if the party be acquitted from any insufficiency in the in- dictment, such an acquittal is in general not pleadabb upon a second indictment, because the prisoner's life in this instance, was never placed in jeopardy, and therefore the reason for the plea en- tirely fails. 2 Hah, 248. 4 Co. 44. 45. 1 Star. 302. Ilex. v. Reading, 2 Leach, 593. jf^^ Bulhr, J. But then the insufficiency of the indictment should appear in the record of the judgment of acquittal. 2 Hah, 395. When the Defendant has been tried by a foreign tribunal of competeot jurisdiction, it seems clear, that an acquittal before such iy # '1' I I 4- W" i "' i 62 mnivefoii^ ^tmit. tribunal will equally enure to his defence in this country ; but, in this case, he should produce an exemplification of the record of his ncqnitlal, under the public seal of that state or kingdom where he has been tried and acquiiied. IhUchimon'a cae, 3 Ke». 785. ^ Beak v. Thijnvhit, 3 Mod. 194. 1 Shore 6. Hull N. P. 245. Tiie identity of the party must be shewn by averment in the plea, that he was the same person charged in the former 'ndict- ment. And though he be described diflerently in the two mdicl- ments — as, if in the first he be styled yeoman, and in the second gentleman, yet he may aver that he only was the person meant under each addition. 2 Hauu c. 35. ^ 3. The identity of fit >(fincc must appear as well in law as ?n fact. I Star, 304 rij: \Mh-,i.or-»oi IMius, an acquittul on an indiclment for felony, is no bar to an indictment for a misdemeanor. 2 Haw. c. 35. ^ 5. And an acquittal as accessary after the fact, cannot he pleaded to a subsequent indictment as principal ; and the same t- converso. 2 llalc, 244. Fast. 3G1. Stnundf. 105. If a man be acquitted generally upon an indictment for murder, antrcfoia acquit is a good pica to an indictment for viunalavghtcr of the same person ; and C: converso, if he be indicted of mnn- ulaiiS'fiter and acquitted, he shall not be afterwards indicted for t\u; same death ns murder. 4 Co. Hep. 40. G. HolcrofCs case, 2 Hale 240. Fost. 320. 1 Star. .305. Ijut ii A. comn)it a burglary, and at the same lime steal goods oMl of tlie house, and he bo indicted for the larceny only, nnd ac- qiuiteil, he may still be indicted for the lyurglary. 2 Hale 245. And so t converso, (Ld. Hale says) if he be indicted for the hurglnry and acquitted, he may still be afterwards indicted of larceny, lb. 240. Ijut the converse of this proposition must be received with this limitation, viz. — that the indictment for the burglary lay the of- fence only with an intent to steal, and not with an actual larceny; for, if laid with an actual larceny, a general acquittal would of course include an acquittdl of the larceny itself. 1 Star. 309. If A. comn)il a robbery in the county of 13. and carry the goods into the county of C. and be there indicted for larceny only, an acquittal upon such an indictment, is no bar to an indictment for the robbery in the county of B. 2 Hale 245. 246. For the same reason, if an indictment for murder is brought in an improper county, an acquittal upon such indictment cannot be pleaded to a subsequent indictment in the proper county. 2 Haiv. c, 35. '^ 3. Contra. Staundf, 105. But if a man steal goods in one county and carry them into another — as he may be indicted for the larceny in either county— I It sut 2 quti of be ^tttr^f oto amuit cs y ; but, ill f record of lom where Kes. "785. /. P. 245. Jnt in the wr "ndict- kvo indicf- he second ion mennt faw as ?Vi no bar to ? pleaded ["onveiso. ' murder, ^favghfer of innn- icled for fCs case, a I goods and ac- h 245. Tor the cted of itb this the of- irceny; uuld of 509. ry the V on'y. ctment ght in not be Haw. into ily— one county same stealing in would be a bar to er county. II it seems, that an acquittal subsequent prosecution for i 2 Haw, c. 35. >§ 4. Yet it hath happened, says Lord Hahf that a man acquitted for stealing a horse^ hath afterwards been convicted for stealing the saddle^ though both were taken at the same time. 2 Haht 246. Where there is a variance between the record of the former ac- quittal, and the indictment to which it is pleaded, yeX^ if ilie nature of the crime be in substance the same, the variance may generally be helped by proper averments in the plea.* 2 Haw, c. 35. <^ S. As, if a man be acquitted upon an indictment for murder, charged to be committed on one day, and be afterwards indicted for murder alleged to have been committed on another day, he may plead autrefois acquit^ alleging the supposed offence to be the same ; for the day is not material, and the death is of a person certain, v "ho can be but once killed. 2 Hale^ 244. ' So, if a man be acquitted of an indictment for murder or rob- bery of J. S. and he be afterwards indicted for the murder or rob- bery of J. N. he may plead autrefois acquit^ and aver the person to be the same, notwithstanding the variance in the surname ; for a man, it is said, may have many surnames. lb, 2 Haw. c. 35. <^ 3. But where a prisoner was acquitted on an indictment for forgery, on a variance between the instrument produced and that recited in the indictment, it was held, that he could not plead autrefois acquit to another indictment for the same o/fence, which set forth the instrument correctly. R, v. Coogan, 1 Lcachf 448. R. v. Read- ingy 2 Leachy 593, per BulleTj J, The plea of autrefois acquit, in the R, v. Coogon, was takrn ore ^enus, and the court rejected the record of the acquittal as in- sufficient proof of the plea. But if the plea had been in writing, and ther'> had been an averment that the instrument set out in the first indictment, and that set out in the second, were in fact the same, it seems to be reconcilable with what is said in 2 Haw. c, 35. <^ 3. 4. that such a plea would have been available. Deacon's C, L. 96. An accessary may plead the acquittal of his pn'ncijiaZ; for if there be no principal ttiere can be no accessary. 2 HalCi 254. 3 Inst. 139. So, if ^. charged with a felopy, breaks prison, and be acquit- ted of the principal felony, he may plead that acquittal to any indictment for felony, in the breach of prison. Sawford's case, I Hale, 611. 612. 2 Hale, 254. Practice. ' ' ' ' ' The prisoner is not entitled to a copy of the indictment to en- able him to plead autrefois acquit ; but he has a right to have the G4 MutvtMu atanlt •1 indlctmei.t read very slowly and distinctly over to him. R. ». Varidercoinb, 2 Leach, 711. The plea, ;is well as !i*e replication, may in general be pleaded ore tenus. R. v. Cougan. 1 Leach, 448. But tlie replication cf nul tiel record cannot be pleaded ore tenus, except by the Atiorney General, but must be written on parchment, and handed in to the court. 2. Leach, 115. Note (a). Iflhe indictment be for felony ur treason, the defendant, besides the pica oi' autrefois acquit, siiould also plead over (o tb:; felony or treason, i/rt/e, Sum. 24f). R. v. Vandercomb, 2 [jcarh, 708. The court upon issue joined as to the identity oi dis p< rao.i »r the oflence, award a venire returnable instanter ; imd upon the sheriir uiaUing; his return, the jury ate iiTimtdialely !^»vorn to try the issui! of autrefois acquit, the cou)i>;ol for the prisoner liaving leave to address the jury in support v,ii liie aflirmative of the issue. R. V. Sheen. 1 Carr. i^- P. 038. 1 Leach, 170. Record of Acquittal. — (Cr. Cir, dm,) JloTiv Dl:s r'ii. ^ Iifi it remembered, that at llie general quarter to wit. ji sessiou.s of the peace of our Sovereign Lord iho Kin^, hohkn nt «!ie city of Toronto, in and for the said home difslrict, Oil he day of in the year Sec. before VV. M., K. K-, I*. U. and Z. Z. csqrs. justices of o«n said liord the vCiug, assit^nrd to keep the peace of our said Lord the King, in and for ilie said home district, and also to hear and determine divers felonies, trespasses and other misdeeds, committed in the said district, by the oath of S:c. (the grand jury stating all their names) good and lawful men of the district aforesaid, then and there sworn and charged to inquire for our said Lord the King, for the body of t!ie said district, it is presented in manner and ftrm as followpth, that is to say, — Home District, to wit. The jiu'ors &ic. (recite the whole indictment). Whereupon the sheriff of the said home district, is commanded that he cause the said A. n. to come to answer &tc. and afterwards, to wit, at the same ses- sion of the peace holden at the city of Toronto, aforesaid, in and for the said home district, by adjournment, on Wednesday the day of the same month of—— in the year aforesaid, before the justices of our said Lord the King, above named, and other their fellows aforesaid, cometli the said A. B. in his own proper person, and having heard the said indictment read, the said A. B. saith that he is not guilty thereof, and concerning thereof he putteth himself upon the country ; and — — esq. clerk of the peace for the said home district, who prosecutes for our said Lord the King, in this behalf doth the like ; therefore let a jury thereupon come be» R. ». (1 the ng, in n-mine ill the their nnd King, and The sherifl' id A. le ses- n and i the their rson, saith Jtteth )r the ig, in be- said Lord the Kinor, at 65 general fore the jljstices of our said Lord the King, at the next quarter sessions of the peace of our said Lord the King, to be hold- en at the city of Toronto, aforesaid, in and for the said home district, by whom the truth of the matter may be better known, and who have no afHnity to the said A. B. to recognize upon their oath, if the said A. B. be guilty of the premises aforesaid or not; because as well the said who prosecutes for our said Lord the King in this behalf as the said A. B. have put themselves on that jury, the same day is given as well to the said who pro- secutes for our said Lord the King in this behalf, as to the said A. D. at which said next general quarter sessions of the peacc^ to wit, at the general quarter sessions of the peace of our said Lord the King, holden at the said city of Toronto, in and for the home dis- trict aforesaid, on Monday the ■ day of — in the said year of the reign of ouv said Lord the King, before W. M., G. H., F. P. and S. T. esqrs. and otiicrs their fellows, justices of our snid Lord the King, assigned to keep the peace of our said Lord the King, in and for the home.districl, aforesaid ; and also to hear and determine divers felonies, trespasses and other misdeeds, committed in the same district, cometh as well the said — — who prosecutes for our said Lord the King in this behalf, as the said A. B. in his own proper person; and the jurors of that jury, by esquire, sheriff of the said home district, to this matter empannelled and re- turned, to wit, (*hc names of the jpctit jury ) being called, come, who being c'losen, tried and sworn, to speak the truth of and upon the premisrs in the indictment aforesaid, above specified, do say, upon their oath, that the said A. B. is not guilty of the trespass and offence aforesaid, in the indictment aforesaid, above specified in manner and form as the said A. B. for himself above b^* his plea hath alleged ; whereupon it is considered by the court here, that the said A. B. of the trespass (or felony) and offence aforesaid, in the indictment aforesaid, above specified, be discharged and go thereof without day. *\3i I ^*.. :• : • AUTREFOIS ATTAINT. A PERSON once attainted of felony being civiliter mortuus, and his property being forfeited to the King, cannot in general be in- dicted again for another felony — whether committed before or after his attainder — on the ground that, as he had forfeited all that he could forfeit, a prosecution for any other offence would be useless. A plea of autrefois attaint^ therefore, is a pood bar to an indictment for the same or any other felony of the like descrip- tion. 2 Haw. c. 36. 4 BL Com. 33G. E ■'■■-:' '§^. I3utrefoi0 tonvCct» $ct. I . iU It :t'; ! *. But a* this rule U one rather of expediency than otherwise^ it doei not follow that after an attainder the party attainted may commit other felonies of a higher description, such as murder, rape, and the like, with impunity. A plea of autrefois attaint will therefore in such cases, or for other capital pfTences, be of no avail; and the party may be indicted and convicted, in «rder that he may undergo the higher degree of punishment — ■forfeiture of goods being only ^f secondary consideration in 8uch<-case». .< AUl^^EFOIS CONVICT. ,•<.<( ' "»»'»<' This plea (like that of autrefois acquit) can in general only be pleaded for the same identical felony ; — it is (like that also) founded on the principle, that a man is not again to be placed in jeopardy for the same offence ; and still less so, if he has already J[as in this case) suffered the penalty due for it. 2 Haw. c, 36. '^10. 4 Bl. Contm 336. And though no judgment may have been given upon the for- mer conviction, still the plea of autrefois convict is a good bar to a second indictment for the same oflfence. 2 Hai\ c. 36. ^ 14. Record of Conoiction. — See AcTRCrois Acquit. ■'ti^ ._. do say upon their oath, that the said A. B. is guilty of the trespass and offence aforesaid in the indictment aforesaid, above specified in manner and form, as by the said indictment above against him is alledged ; whereupon it is considered by the court here that the said A. B. for the trespass and offence aforesaid, in the indictment aforesaid, above specified, be taken, &.c. which said A. B. being present here is fined for the said trespass and offence three shillings and four pence, which he paid to the sherifif of the said home district, in court, to the use of our said lord the King; pfid the said A. B. is committed to the common gaol at the city of Toronto aforesaid, in the said home disti'ict, there to remain and be kept to hard labour for the space of six calendar months, > ..,..-.. .■^'. :;u-iff BAIL. „ ..:■■- '■->,: :■■': i>?jr Bail, (firom the French word hailhr to deliver) signifies the de- livery of a man out of custody, upon the undertaking of one or more persons for him, that he shall appear at a day limited, to answer and be justified by the law. Hale*s P. C. 96. If a person be brought before a justice, and it appear that no felony has been committed, he may discharge him; but if it appear that a felony has been committed, though it appear not that the ( 2 or nu di( to srwite^ it nted may murder, if attaint be of no trder that ■eiture of e». I only be ) founded jeopardy as in thi« \ tUe for- od bar to \.% 14. guilty of id, above nt above the court esaid* in which pass and ie sheriff lord the gaol at there to calendar the de- one or iited, to ' that no t appear that the . .4 i. iiaClv kUtl 67 s party accused is guilty, vet the justice cannot discharge' hihi* but must bail or commit hini. Ihi'd 98. '^ '' ' '''^'^ «^"'* At the common law bail was allowed in all cases liut honifclde ; until the statute 3 Ed. 1. c. 15. which directs what offenders shall be bailed, and what not. JInlf-'s /*. C. 97. : and by statute 1 &c 2 P. and Af. c, 13. any person arrested for manslaughter or felony, or snspicinn thereof, being hailnble by Inw, shall not be bailed by any justices, out in open session, except it be by ^u«o justices at the least, and the same to be present together at the time of the bail- ment. And now by statute 3 W. 4. c. 3. which recites, that, it is expe- dient to define under what circumstances persons may be admitted to bail in cases of felony or misdemeanor, and to make better pro- vision for taking examinations, informations, bailments and recog- nizaneeSf and returning the same to the proper tribunals ; and also for obtaining the evidence of prisoners confined in any prison, upon the limits thereof, without the necesiiity of suing out a writ of habeaJt corpus. By § 1. it is enacted, that when any person shall be taken on a charge of (Vlon}', before one or more justice or justices, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as shall raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in manner hereinafter mentioned; but if there shall be only one justice present, and the evidence shall neither raise a strong presumption of guilt, nor warrant the dis- missal of the charge, such jusiirc shall order the person charged to be detained, until he be taken before t!7^>o justices at least — and where any person so taken, or in the first instance taken before two justices, and the evidence, in their opinion, shall not be such as to raise a strong presumption of (^uili, and to require commit- tal, but there shall notwithstanding; appenr ground for judicial inquiry, the person charged shall be admitted to bail, by such two justices, in the manner hereinafter directed. <^ 2. enacts, that the two justices, before they shall admit to b»il, and the justice or justices before committal to prison, shall take the examination of such person, and the information of the witnesses, in writing, in the presence of the party accused, if he be in custody : and the two justices shall certify such bailment in w^riting, and every such justice shall have authority to bind by recognizance the witnesses, to appear at the assizes or sessions; and such justice or justices shall subscribe the examinations, in/ormations, bailments, and re- cognizances, and deliver the same to the public prosecutor before the opening of the court. "^ 3. And every justice of the peace^be- fore whom any person shall be taken, on a charge of misderaea- 1^1 08 S/lU* l!l m nor, shall take the examlmiion of the party charged, and the information of ihe witnesses, upon oath, in writing, before he shall commit to prison or require bail ; and in every case of bailment shall bind the witnesses by recognizance, as in cases of felony, and subscribe all informations, bailments and recognizances, and de- liver same to (he public prosecutor, as in cases of felony. ^ 5. And any justice acting contrary to this act, shall be fined by the. court of oyer and terminer, or general gaol delivery, or sessions of the peace, respectively. '^ 6. Where any person shall be com- mitted for trial by any justice or justices, or coroner, it shall be lawful for such prisoner, liis counsel, attorney or agent, to notify the committing justices or coroner, that he will, so soon as counsel can be heard, move his Majesty's court of king's bench, or one of the judges, for an order to the justices of the peace or coroner of the district, to admit such person to bail ; whereupon such committing justice or coroner, shall transmit to the crown office, close under hand and seal, a certified copy of all informations, examinations, and other evidences, touching the prisoners offence, with a copy of the warrant of commitment and inquest, and the packet con- taining the same, shall be handed to the person applying for the same, in order to such transmission, and shall be certified on the outside to contain the information touching the case in question. f, 7. And upon any application to his Majesty's court of king's bench, or to any judge thereof, the same order touching the pris- oner being bailed, or continued in custody, shall be made as if the party were brought up upon a habeas corpus. By the declaration of rights, 1 JV. Sess. 2. c. 2. excessive bail ought not to be required. To refuse bail where the party ought to be bailed, (the party ofTerliig the same) is a misdemeanor, punish- able not only by the suit of the party but also by indictment. 2 Haw. 90. H. P. 97. : and to admit bail where it ought not to be admitted, is punishable by the judges of assize, by fine ; or punish- able as a negligent escape at common law. II. P, 97. — and so if n justice take insufficient bail. lb. A justice of the peace cannot take bail for murder. 2 Inst, 186. And if a person be dangerously wounded, the justice ought to be ver> cautious how he takes bail, till the year and day be passed, for if the party die, and the ofien- der appear not, thejusticc is in danger of being severely fined. 1 Haw. 138. The court of king's bench however, may admit a person to bail who has been committed for murder, if they think the circumstances of the case will justify their doing so. Ld. Mo- hun's case, 1 Salk. 104. Jl. v. Magrath, Str, 1242. If the bail taken be insufficient, thn justice may require better sureties, and. commit the parly on refusal. 2 Haw. 89. 4 Acknowledging Bail in another ManU nam: 69 By Stat. 21 /. c. 26. if any person shall acknowledge, or procure to be acknowledgecl, any bail in 'he name of any other, not privy to the same, he shall be guilty ui felony without benefit of clergy. Bail taken before a judge, is not within this statute till it is filed of record. 1 H. II. 696. But it is within the following statute of 4 fV. c. 4. which enacts, " that any person who shall personate another, before those who have authority to bail, so as to make him liable to the payment of any sum of money in that suit or ac- tion, shall be guilty of felony." If bail cannot other^vise be obtain- ed, the law hath also provided a remedy by the habeas corj^us act. 31. C. 2. See— post, '• Habeas Corpus." BANISHMENT. By statute 3 W. 4. c. 4. '^ 5. All other felonies (except capital) may be punished by banishment ; (see post title ^'punishment.** ) and by statute 40 6r. 3. c. 1. '^ 5. The oifender shall remove him- self within a space of time to be fixed by the court, being not less than two days nor more than eight, including the day on which sentence was passed. -- ' • BANKS, DESTROYING. By the 6 G. 2. c. 37. If any person shall unlawfully and malici- ously break down or cut down the bank of any river, or any sea bank, whereby any lands shall be overflowed or damaged, he shall be guilty of felony. ^ 5. And by statute 10 G. 2. c. 32. If any person shall unlawfully cut off, draw off, or remove and carry away, any piles, chalk, or other materials, driven into the ground and used for the securing any marsh, or sea walls, or banks, in order to prevent the lands lying within the same from being overflowed and damaged, on complaint or information thereof made upon oath to any justice residing near the place, such justice shall summon the party com- plained of, or shall issue his warrant to apprehend and bring such person before him ; and upon his appearance, or ncgk'ct to appear, he shall proceed to examine the fact, and upon due proof thereof, made either by confession, or oath of one witness, shall convict the offender, who shall thereupon forfeit £20 ; half to the informer and half to the overseer, for the use of the poor ; to be levied by distress and sale; and for want of sufficient distress, to be commit- ted to the house of correction, to be kept to hard labour for six months. ^ 5. . . 7« f^nvvHtvytf ^c. fir i BAUUATKY. A Barrator, in legal ucceptation, slgiiifies a common mover, fxciter, or muiiitaincr of suits or quorrcis, either \u c>. > ^is or in the country. 1 Imt, 368. 1 Hato. 243. //( courta, mebiis either courts of record, or not of record. In the country^ in three man- ners ; 1 — in disturbance of the peace ; 2— in taking or keep- ing possession of lands in controversjyr ; 3 — by false inventioni and sowing of calumnious rumours- and reports, whereby discord and disquiet may arise between neighbours. 1 Inst. 368. No one can be a barrator in respect to one act only. 1 Haw. 243. Neither is an attorney guilty of an act of barratry in respect of hii main- taining another in a groundless action, to the commencing whereof he was no way privy. 1 Haw, 243. Nor shall a man be adjudged a barrator in respect of any number of false actions brought by Itim in his own right ; for in such case he is liable to double costs.— 1 Haw. 243. By statute 34 Edw. 3. c. 1. Justices of the peace shall have power to restrain all barrators, and to pursue, arrest, take and chastise them, according to their trespass or oflence. As to the kind and manner of punishment it is said, that if the oiTender be a common person he slinll be fined and imprisoned and bound to his good behaviour ; and if he be of any profession re- lating to the law, he ought also tu be further punished by being disabled to practise for the future. 1 Haw, 244. ,ii:A- BASTAUD. !i !; Bf statute 2 fV. 4. c. I. After reciting that doubts had been en- tertained respecting the true meaning of 21 James 1st. entitled ** an act to prevent the destroying and murthering of bastard children," and the same had been found difficult and inconvenient to be put in practice ; it is enacted, that the said act should not be in force in this province. ^ 2. That after the passing of this act the trial of any woman charged with murder of any issue of her body, male or female, which being born alive would by law be bastard, shall proceed and be governed by the like rules of evidence and presump- tion as in other trials for murder. <^ 3. That if any woman shall be delivered of a child, and shall by secret burying, or otherwise disposing of the dead body of the said child, endeavour to conceal the birth, every such offender shall be guilty of a misdemeanor, and upon conviction be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years ; and it shall not be necessary to prove tltat the child died before, at, or after its birth.— Provided aUo, acqui court ]SaUiti|{c:fiou0e. 71 aUo, that if any woman tried for the murder of her child shall be acquitted, the jury may fiud her guilty of the concealmeiitf and the court pa»i lentence accordingly. ; <. f BAWDY-HOUSE Keeping a bawdy-house is a common nuisance, as it not only endangers tlie public peace, by drawing together dissolute and de- bauched persons, but also tends to corrupt the morals of both sexes, by such an open profession of lewdness. 3 Inst, 204. 1 Haw, c, 74; IB, ^ 6. This offence is punishable by fine and imprisonment. I Haw. e. 74. ♦, '^ • A married woman may be indicted for this ofience, the ssme as if she were a feme sole ; and may olso be convicted of it together with her husband. Rex. v. fVilliamSf I Salk, 383. And a man may be bound to his good behaviour for haunting bawdy-houses with women of bad fame, or for keeping bad women in his own house. 1 Haw. c. 74. And a constable is authorised by the com- mon law, to arrest persons that resort to bawdy-houses. 1 Haw. c.lO.% 34. Information and Complaint against a person for keeping a Bawdy- houss. Home District, > The information and complaint of A. B. of the to wit. I township of in the said district, gentleman* taken upon oath, this ^— — day of • 18 — before me C. D. esq. one of his Majesty's justices of the peace Uc. The said informant upon his oath, saitli, that E. F. of and A. M. his wife, arc the keepers of a common bawdy-house, at — — in the said town- ship, and that men and women of ill fame are in the constant habit of resorting to the said house, at all hours of the night, and that the said house hath hecome and still remains a common nuisance. Sworn, &.C. . / ...:. Warrant to apprehend the Keeper of a Bawdy-hou»e. ' "V .. • • To the Constable of — - Home District, > Whereas information and complaint hath this to wit. ) day been made upon oath, by A. B. of- ■ ■ before me C. D. Esq. one of his Majesty's justices of the peace fur the said district, that E. F. of and G. H. his wife, keep and maintain a house of ill fame, and a common bawdy-house, at » and that lewd women frequently resort thither, with men of dissolute lives, to the great scandal of the neighbourhood, the en- i i^r h !!l 72 ]laUi^j>::tioufiir« couragement of vice and debauchery, and against the King's peace. These are therefore in his Majesty's name, to command you to bring the said E. F. and G. H. before me, at on the day of at o'clock in the noon, to an- swer to the complaint of the said A. B. and to be further dealt with according to law. Given under my hand and seal, kc. Condition of a Recognizance to appear and jirosecute. The condition of this recognisance is such, that if the above bounden A. B. shall and do personally appear at the next general quarter sessions of the peace, to be holden at the city of Toronto, in and for the said home district, and then and there pref(}r and give evidence upon a bill of indictment, before the grand jury, against E. F. of — — and G. H. his wife, for keeping a common bawdy-house, and in case the said bill shall be found a true bill, then if the said A. B. shall prosecute the same with effect, and not depart the court without leave, this recognizance to be void, other- wise in full force. Condition of a Recognizance to appear and answer. The condition of this recognizance is such, that if the above bounden E. F. and G. H. his wife, shall personally appear at the next general quarter sessions of the peace, to beholden at the city of Toronto, in and for the said home district, and then and there answer to a bill of indictment to be preferred against them for a nuisance, then this recognizance to be void, otherwise in full force. Commitment for leant of Sureties. To the Constable of and to the Keeper of his Majesty's gaol in and for the Home District. Home District, } Whereas information Uc. (as in the warrant) and to wit. 3 the said E. F. and G. H. not being able to give sufficient security for their appearance at the next general quarter sessions of the peace, to be holden in and for the said dis- trict, to answer to a bill of indictment, to be then preferred against then for the said offence. These are therefore in his Majesty's name to require and authorise you the said constable, to convey the said E. F. and G. H. to the said gaol, and tp deliver them to the" keeper thereof: and you the said keeper are hereby required to receive the said E. F. and G. H. into your custody, and them safely keep in your gaol, until they shall give such security as aforesaid, or be otherwise discharged in due course of law. Given under my hand and seal &c. . the • fourt the the lawfi and of hi evil the Indictment for keeping a Dawdy-houte. (Arehhold.) 73 Nome District, > The jurors &cc. That I. S. late of &c. labourer, to wit. ) and A. his wife, on the ■ ' ■ day of- - in the — — year of the reign of our Sovereign Lord William the fourth, and on divers other days and times, between that day and the day of the taking of this inquisition, with force and arms, at the township aforesaid, in the county and district aforesaid, un- lawfully did keep and maintain a certain common, ill-governed and disorderly house, and in the said house, for the lucre and gain of him the said I. S. certain persons, as well men as women, of evil name and fame, and of dishonest conversation, then and on the said other days and times, there unlawfully and willingly did cause and procure to frequent and come together, and the said men and wome*^, in the said house of him the said I. S. at unlaw- ful times, as wei. in the night as in the day, then and on the said other days and times, there to be and remain drinking, tippling, whoring and misbehaving themselves, unlawfully and wilfully did permit, and yet do pc nit, to the great damage and common nui- sance of all the liege . objects of our said lord the King, there in- habiting, being, residnig and passing, to the evil example of all dthers in the like case offending, and ag'ainst the peace of our lord the King, his crown and dignity. BEEF AND PORK. By Stat. 45 Q. 3. c. 8. the Lieutenant Governor is authorised to appoint one or more inspectors in each district, to be inspectors of beef and pork, who shall, before entering upon his office, take tlie following oath before a justice of the peace. " I dp solemnly swear, that I will faithfully, truly and imparti- ally, to the best of my judgment, skill and understanding, execute, do and perform, the office and duty of an inspector, packer and re-packer of beef and pork, according to the true intent and mean- ing of an act entitled, * An Act to regulate the curing, packing and inspection of beef and pork ;' and thai I will not directly or indirectly, brand or suffer any cask of beef or pork to be branded, but what shall be sound and good." — Which oath shall be filed with the clerk of the peace, and each inspector shall in the month of Junp in every year, make a return to the Lieutenant Governor of the whole number of barrels inspected by him during the prece- ding year. <^ 2. No inspector shall be a dealer in beef or pork, except for the necessary consumption of his family. <^ 3. No beef shall be packed or repacked for foreign markets, unless it be of fat cattle, not under three years old, cut in square pieces, not ex- 74 Href ann ^otU. 1^ :i r ceeding 12 lbs. weight, nor less than 4 lbs. weight, and the same Khali be eurled fur packing and repacking, and denominated mess, prime and cargo. Mess beef shall consist of the choicest pieces of uxeu, cows or steers, well fatted ; the shin, shoulder and neck shall be taken fi om the fore quarters, and the legs and leg rounds from the hind quarters, and each barrel containing beef of this descrip- . tion, shall be branded on one of the heads, with the words me*$ beef. That prime beef shall consist of choice pieces of oxen, steers, cows and heifers, amongst which there shall not be more than half a neck, and one shank with the hock cut off; and one of the heads of all barrels containing beef of this description, shall be branded with the words j;r»'«2c beef. That cargo beef shall consist of fat cuttle of all descriptions, of three years old and upwards, with not more than half a neck, and three shanks without the hocks, in each barrel, and shall be otherwise merchantable; and such barrel shall be branded on one of the heads, with the words cargo beef; and every barrel of beef shall be well salted, with not less than 40 lbs. of clean Saint I3bes, Isle of Man, Lisbon, Turks Island fialt« or other salt of equal quality, exclusive of a pickle made as strong as salt will make it; and to each barrel of beef 2oz. of saltpetre. ^ 4. Every beef barrel shall be of good seasoned white oak staves, and heading free from every defect, and shall contain 200 lbs. weight of beef, and shall not be of a larger guage than 30 gallons, and dhall be hooped with fourteen good ash, hickory, or oak hoops, the heads to be made of good thick stuff; the hoops to be well set and drove. ^ 5. One head of every barrel of beef or pork shall be branded with the weight it contains, the inspector's name, and the district, with the addition of Upper Canada, in legible letters. <^ G. No inspector shall act out of his district, under the penalty of twenty shillings. ^ 7. And for refusing or neglecting to inspect beef ur pork, for the space of two days after application, shall forfeit furty-shillings to the use of the person injured by such delay. <^ 8. Every inspector shall be entitled to one shilling and six pence for each barrel of beef or pork he shall salt, pack, in- spect and pickle, exclusive of cooperage ; and six pence for every mile he shall travel, to be paid by the owner. <^ 9. Any Inspector guilty of neglect or fraud, shall forfeit a sum not less than forty shillings, nor more than twenty pounds. <^ 10. Any person shift- ing any beef or pork out of any cask inspected or branded, or putting in any other for sale, shall for every offence, forfeit ten pounds. <^ 1 ] . And counterfeiting any brand-mark twenty pounds. ^12. Pork barrels shall be made of good seasoned white oak staves, and heading free from every defect, and each barrel shall contain 2001bs. weight, and shall not be of a larger guage than 30 gallons, and in all other respects the same as beef barrels. Urndi W^tt^ni 75 ^ 13. There shall be tviro qualities of pork, vis. : — mesg and prime pork. Mess pork shall consist of the rib pieces of good fat hogs only : barrels containing such pork shall be branded on one of the heads, mess pork. Prime pork shall consist of the next best pieces with not more than six shoulders or legs, with the shanks cut off*, in one barrel ; and one of the heads of every such barrel shall be branded prime pork ; such pork to be cut in square pieces, and as nearly as possible in pieces of 41bs. weight; and shall be salted and pickled, and when inspected, branded in like manner as beef, designating the different qualities or denominations. ^14. The inspector shall give the owner or agent the following certificate under his hand and seal. 1 do hereby certify, that I -— — have inspected .— i^ barrels of cargo, mess or prime pork, (as the case may he) the property of li. and that the said mess, prime, or cargo beef, mess or prime purk, is in every respect packed and branded agreeable to the laws of the province of Upper Canada. I Sec. 15. No person shall by this act be compelled to have his beef or pork inspected. ^ 16. All fines and forfeitures shall be recoverable by the magistrates in quarter sessions, and in order thereto, any justice may summon the accused to appear at the next general quarter sessions; and one moiety of such fines shall be paid to the receiver general, for the use of the province, and the other to the person who shall sue. ' BENCH AVAUR ANT. Bv Stat. 55 Q, 3. c. 2. <^ 3. the process upon every indictment to bring the person indicted into court, shall be a capias, in the usual form, issued from the court before whom the said indictment shall be found, directed to the sheriff* of the district wherein the said court shall be then sitting, commanding him lo :ake the person so indicted and bring him before the said court ; and if the person cannot be taken during the sitting of the said court, that then so soon after as he shall be taken, he do bring or cause him to be brought before some justice of the peace vX the said district, to be dealt with according to law ; which said capias shall be made returnable in the court of king's bench on the first day of the term next after the sitting of the said court before which the said indictment shall have been found. And if upon the return of the said writ the sheriff' of the said district shall return that the person therein named is not lo be found in his district, then an alias writ of capias shall issue from the court of king's bench, under the seal of the said court, tested of the first day of term, if in term timc^ or on the last dny of the preceding term, if in 76 jlrncfi Wf^tv^nt. yaca^on, returnable before the said court of khg*s bench oii the first 4ay of the term next ensuing. ^ 4. And if to the said writ of alias capias tlie sheriff shall return non est inventitSf then upon jniotion in court, or before a judge in vacation, a writ of exigent shall issue. For further proceedings see title "Outlawry." . The above act was allowed to expire, but was revived and con- tinued by the 3JV^. 4. c. 6. (passed in February 1833) for six years, ' and to the end of the next session. After an indictment found, any private person, without a war- rant, may arrest the offender. J)alt, c» 170. % 5. Upon the party being taken, (if the charge be misdemeanor only) he may give recognizance to appear to any magistrate, who thereupon will grant a supersedeas of the warrant. But if the charge be felony^ magistrates should be exceedingly cautious in taking bail after an indictment found by the grand jury ; and the better course would perhaps be, to leave the prisoner to apply to a judge, who will bail him or not, according to his discretion. Form of a Bench Warrant. To the Sheriff of the Home District — Greeting : Home District, > These are to will and require, and in his Majes- to wit. 5 ty's name to command you, upon sight hereof, to bring before us J. C. and S. P. esquires, two of his Majesty's justices of the peace for the home district, at the general quarter sessions of the peace, now being holden at the city of Toronto, in and for the said home district, or surh jther two or more oi' his M'ljesty's justices of the peace (o' ti> said home district as shall be then and there sitting, the body >f A. B. whr stands in- dicted before us at this same sessions for " i assault, (or for grand larceny) if the court shall be then and there sitting; and if he cannot be taken during the present session.^, that then so soon after as he shall be taken you bring or cause him to be brought before some justice of the peace of the said district, to be dealt with according to law ; and what you shall have done herein make appear to his Majesty's justices of the court of king's bench at Toronto, on the first day of . term now next ensuing, and have you there this warrant. Dated in open sessions, at the city of Toronto aforesaid, this _ .._ day of in the year of out- Lord 18 — J. C. s. p. Form of Commitment if for Felony. To the keeper of the common gaol a^t Toronto, in the home district. Home District, ) Receive into your custody (he body of \. B. to wit. 5 herewith sent you, brought before me, G. H. f$tmm of €utttsif s^K. 77 esquire, one of his Majesty's justices of the peace in and for the said district, by G. B. constable of the said district, by virtue of a bench warrant issued at the general quarter sessions of the peace holden at Toronto aforesaid, in and for the said district, on the — day of- last, against the said A. B. upon a bill of indictm&nt then and there found against the said A. B. for grand larceny, and him safely keep in your custody until he shall be dis-« charged in due course of law. Given under my hand and seal, this —- — day of . ■ i . ■ in the year of our Lord 18 — . ■ .< s BENEFIT OF CLERGY. ' ' Benefit of Clergy was a privilege allowed by the law to clerhs in orders, and afterwards to those among the laity who could read, by virtue of which, a criminal, though duly convicted, was dis- cl;arged from the sentence of the law in the King's courts, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons. 4 Bl. Com. 368. Owing to the ancient severity of the British law, which subjected all persons convicted of felony of any description to the penalty of death, the benefit of clergy appears to have been a remedy invented by the church in her day of power to rescue offenders convicted of felony from the punishment consequent thereon ; subsequently, the legislature, to distinguish such crimes as were by statute to be punished with death) usually enacted, that the offender upon conviction, should be deemed guilty of felony without benefit of clergy — thus leaving the criminal to rely only upon the royal prerogative for a mitiga- tion of his punishment. The real distinction therefore in cases of felony, appears to have been this : — Felonies at the common law or by statute, within the benefit of clergy, were no longer deemed capital ; but such as were not within this privilege, partook of all the ancient rigour of the law. and were deemed capital or punish- able with death. Benefit of cleigy is now very properly abolished, :ind a milder criminal code substituted: this important change was eli'ected in England, by statute 1 ^ 9 G. 4. c, 28. and in this pro- vince, by statute 3 W. 4. c. 4. and by the latter statute siM^h felonies as are in future to be deemed capital and punishable with death, are therein expressly mentioned. . BIGAMY. i Bigamy signifies, in criminal law, the offence of having two wives or two husbands at the same time. 4 Bl. Com. 163. By Stat. 1 J. 1. c. 1. it is enacted, that if any person within his Majesty's dominions of England and Wales, being married, shall :n i n iKUfnr^i ^HtUu, ^c marrj any person, the former husband or wife being alive, tucli oflence shall be feJony : but this act shall not extend to any person whose husband or wife shall be continually remaining beyond leas by the spare of seven years together, nor lo any person whose husband or wife shall absent himself or herself from the other, by the spare of seven years together, in any part of his Majesty's do> minions, the one of them net knowing the other lo be living within that time ; nor to any person who shall be at the time of such mar- riage divorced by sentence in the ecclesiasiiral court ; uor to any pci'son whose former marriage hath been by sentence in the ecclie- siastical court declared to be null and void ; nor to any person by reason of any former marriage within the age of consent, (i. e. the woman beinr under twelve or the man under fourteen. 3 Inst, 89.) Warrant of Commitment for Bigami/. (Toonc.) To the Gaoler or Keeper of the gaol of the Home District. Home District, > Receive into your custody in the said gaol, and to wit. 5 there safely keep, until he shall be discharged by due course of law, the body of A. B. henewiih sent you, and charged before me J. C. esq. one of his Majesty's justices of the peace in and for the said district, on the oaths of C. D. and £. F. and others, for that he the said A. 13. on the day of in the year of our lord 18 — at did marry one G. H. spinster, and her the said G. IJ. then and there had for his wife ; and that the said A, B. afterwards, to wii, on the day of in the year aforesaid, at feloniously' did marry and take to wife one L. S. spinster, the said G. H. his former wife being then living, against the form of the statute in sirrh case made and provided, (the said C. D. having also made oaih before me the said justice, that the said A. B. was apprehended and taken for the said felony, at ' in the said district). Given under my hand and seal thii — — dav of in the year of our Lord 18 — . BILLIARD TABLES. By Stat. 50 G, 3. c. 6. a duty of jG'lO is imposed upon every person keeping any billiard table for hire or gain. <§> 2. And no person shall have in his possession any billiard table for hire or gain without a license frotp the inspector, under the penally of JCIOO, to be recoverer by action of debt, bill plaint, or informa- tion in his Majesty's court of King's r!ench. BLACK ACT. Bv Stat. 9 G. L c. 22. (commonly called the black act) which U required to be read at every sessions : and by the 6 Gr. 2. c. 37. lii i' . Mamftitxm nM ^vcfutxentm. 79 111 I thy of and the 10 Q, 2. c. 32. which by several continuances were in force till Sept. 1, 1757, and finally, by the 31 6r. 2. c. 42. were made perpetual ; and also by the 27 6\ 3. c. 15. it is enacted as follows :— If any person or persons shall unlawfully and malicious- ly break down the head or mound of any fish-pond, whereby the fish shall be lost or destroyed, or shall unlawfully and malicionsly kill, maim, or wound any cattle, or cut down or otherwise destroy any trees planted in any avenue, or growing in any garden, or- chard or plantation, for ornament, shelter or profit ; or shall set fire to any house, barn, or out-house, or to any hovel, cock, mow, or slack of com, straw, hay or wood ; or shall wilfully and ma- liciously ghoot at any person m any dwelling-house or other place; or shall knowingly send any letter without any name subscribed thereto, or ligned with a (ictitious name, demanding money, venison, or other valuable thing ; [or threntening to kill or murder any of his M<)jest3''s subjects, or to burn their houses, out-houses, barns, stacks of corn or grain, hay or straw. — 27 G. 2. c. 15.J or shall forcibly rescue any person, being lawfully in custody of any officer or other person for any the said offences; or shall by gift or promise of money, or other reward, procure any of his Majesty's subjects to join him or them in any such unlawful act; O',' shall unlawfully and maliciously break down or cut down the bank of any river, or any sea bank, wlioreby any lands shall be overflowed or damaged; or shall unlawfully and maliciously cut any hop- vines growing on poles in any plantation of hops ; or shall wilfully and maliciously set on fire, or cause to be set on Hre, any mine, pit, or delph of coal or cannel coal, — every person so offending, being thereof convicted, shidl be adjudged guilty of felony. And if any person shall apprehend, or cause ^o be apprehended, any such offender, and shall be killed, or wounded so as to lose an eye or the use of any limb, in apprehending or securing, or endea- vouring to apprehend or secure any such offender, on proof thereof at the sessions where the offence was committed, the justices shall give a certificate thereof to the person wounded, or to the executors or adininistrntors of the person killed, by which they shall be en- titled to receive of the sheriff £50, to be allowed in his accounts, which he shall pay in 30 days from the time the certificate shall be shewn to him, on pain of forfeiting to the party £10; for which, and the penalty, the party may bring his action. . j^ which c. 37. BLASPHEMY AND PROFANENESS. All blasphemies against God, as denying his being or providence j and all contumelious reproaches of Jesus Christ; all profane scof- fing; at the holy scriptures, or exposing any part of them to con- 80 ildttntr^rs} iLintn, $ct. i , i m "I Ji tempt or ridicule ; impostures in religion, as falsely pretending' to extraordinary commissions from God, and terrifying or abusing iliL people with false denunciations of judgement; and all open lewoness grossly scandalous, are punishable by fine and imprison- ment, and 6lso such corporal punishment as to the court shall seem neet, according to the heinousness of the crime. I Haw. 6. 7. .\. d if any person shall, in any stage play, interlude, shew, ma^ 'i. •?, or pageant, jestingly or profanely speak or use the holy of God, or of Christ Jesus, or of the Holy Ghost, or of \ne J... \y, he shall forfeit £10— half to the King and half to him that shall sue. 3 J. c. 21. BOUNDARY LINES. ; By 38 Gr. 3. c. 1. monuments may be placed nl the corners of every township and concession, and the lines from the monuments so erected, shall be the permanent boundary lines of such town- ships and concessions. <^ 4. Any person knowingly and willfully pulling down, defacing, altering or removing any such monument, shall be guilty of felony. <^ 6. Upon application made to the ses-' sions by thirty freeholders of any township, to have monuments ei*ected, such justices shall form an estimate of the expense, and' lay an equal assessment upon every acre of land within such town- ship, to be raised and collected by a warrant under the hands and seals of any two of them, directed to the collectors of such town- ships, in such manner and hy such means as in other cases, and to pay the same, when collected, to the treasurer of the district, to answer the charges incurred by erecting such monuments. ^ 7. Provision made for collecting same on unoccupied lands, by notice in the Gazette, and sale of part thereof tc pay such assessments. BREAD. By the 6 G. 4. c. 6. entitled, " An Act for the better regulating the assize and fixing the price of bread, in the several police towns . throughout this province," it shall be lawful for such of his Majes- ty's justices of the peace residing within the limits of any town in this province where a police is established, or residing within the limits of the division constituted for the time being for holding a court of requests in said town or towns, to assemble on the first and third Saturday in each month, at the court-house in each town ; and two of the said justices then present, may assize and fix the price of bread ; and if more than two present, the majority shall fix the same for each ensuing intermediate period; or ii'no justices shall be present, or no change be found necessary, then the last 3 jus flon f^vVbtvUf ^c. tl assize made shall continue in force until varied or changed by a new assize. <§ 2. The clerk of the market is required to keep a just and fair statement in a book, of the daily price or prices of flour in the market, and exhibit the same to any two justices, and make oath of the correctness, if required. ^ «^« '^^^ aforesaid statement of the average price of flour fur the fourteen days pre- vious, shall be the guide for the said justices, to assize and fix the price of bread for the ensuing fourteen days, with due regard to the existing price of flour, fuel and labour. <^ 4. Within twenty- four hours after such assize made, the clerk of the market shall aflix a notice thereof in some conspicuous place on the market- house. ^ 5. Penalty often shillings upon every baker who shall not conform to such assize, to be recovered before any two justices, upon the oath of one or more witnesses, to be levied by distress and sale. <^ 6. Fines to be applied for police purposes. BRIBERY. Bribery, is the receiving of any undue reward by any person whatsoever, whose ordinary profession or business relates to the administration of public justice, or who is in any official situation, in order to influence his behaviour in office, and incline him tu act contrary to the known rules of honesty and integrity; and the person who gives the bribe is as much guilty of the oflence as he who takes it. 3 Tnst. 149. 1 Haw. c. C7. ^2. 4 Bl. Com. 139. The offence of bribery is punishable with jl?no andimprisonmcnt. 1 Haw. c. 67. ^ 3. In judges, especially the superior ones, says BlackstonCf bri- bery hath always been looked upon as so heinous an offence, that the chief justice Thorp was hanged for it, in the reign of Edward ly. 4 Bl. Com. 140. By a Statute of 2 Hen. 4. all judges, officers, and ministers of the King, convicted of bribery, shall forfeit treble the bribe, be punished at the King's will, and be discharged from the King's service for ever. 3 Inst. 146. So, a mere attempt to bribe a judge or a juryman, is punishable by law in the party that offers it. 3 Inst. 147. It. v. Young, cit. 2. East, Rep. 14. 16. Bribery at elections for members of parliament, was always an offence at common law, and punishable by indictment or informa- tion. R. V. Pitt, 3 Burr. 1335. BUGGERY. Buggery is a detestable and abominable sin, not to be named, committed by carnal knowledge against the ordinance of the crea- 82 39uvi|la(C9* tor and order of nature, by mankind with manki^i J, oi- u'lth brute, benst, or by womankind with brute beast. 3 Inst. 58. And by Stat. 25 H. B. c. G. bugqery committed with mankind or beast, is made felony ; which snlj statute making it felony generally, there may be accessories before and after, but those that are present, aid- ing and abettiiio;^, are all principals ; and although none uf the prin- cipals are admitted to their clergy, yet accessories before and after are not excluded from clergy. 1 H. H. 670. If the party buggered be within' the age ofdiscrttiuti, (fourteen years) it is no felony in him, but in the agent only ; but if buggery be committed upon a man of the age of discretion, it is felony in both of them. '3 List. 59. 1 H. U. 670. By statute 3 W. 4. c, 4. which has abolished capital punishment in numerous instances, the crime of buggery is expressly named as one to continue punishable with death. BURGLARY. Burglary is a felony at common law, in breaking and entering the mansion>house of another in the nighty with intent to commit some felony within the same, whether the felonious intent be exe- cuted or not. By Stat. 12 An, c. 7. if any person shall enter into the man* sion-house of another by day or by night, without breaking the same, with an intent to commit felony, or being in such house shall commit any felony, and shall in the night time break the said house to get out, he shall be guilty of burglary. Every entr> >icc is not a breaking ; — as, if the door stand open, am] iht thief erter — this is no breaking. So if the window be open, and the thief draw out some of the goods — this is not bur- glary, because there is no actual breaking. But if the thief break the glass of the window, and draw out the goods — this is burglary. 3 Inst, 64. And lord Hale says, these acts amount to an actual breaking :— opening the casement, or breaking the glass window; picking open the lock of the door, or putting back the lock ; or the leaf of a window ; or unlatching the door that is only latched. 1 if. H. 552. And so does the pushing open of folding doors. Hex. V. Brown, 2 East. P. C. 487. 2 Russ. 902. Pulling down the upper sash of a window. Rex. v. Haines. Russ. ^ Ry. 451. jS. C. nom. Rex, v. Harrison. 1 Chetw. B'>^om. 497. Creeping down a chimney. Cromp, 32. Halt, 253. 1 Haw. c. 38. <^ 6. The breaking is not confined to the outer door, or external parts of a house ; for if A, enters the house of B. the outward door being open, or by an open window, and when within the fili HutiiUrs* 83 house, turn the key of a chamber door, or unlatch it, with intent to steal — this will be burglary. Johnsoti's case, 2 East. P. C. 488. And the like if anv lodger in a house, or guest in a public inn, open and enter another persons chamber door, with intent to commit a felony. 1 Hah 553. 554. 4 Bl. Com. 227. Jiex. V. Bington, 2 East. P, C. 488. But if an inn-keeper break the chamber of his lodger or guest, at night, to rob, this would not be burglary ; for a man cannot commit a burglary by breaking his own house. 2 East. P. C. 502. Kel. 84. Constructive breaking, is where, in consequence of violence commenced or threatened, the owner of the house, (through fear, or in order to repel the violence) opens the door, and the thief then enters, — this amounts to burglary ; for the opening of the door in this case, is as much imputable 'o the thief as if it had been done by his own hands. C/ 12 (a.) 1 Hale 553. 2 East. P. C, 486. And so, if in ice of any fraud or deceit^ the owner is induced to open lo the thieves — this will amount to breaking. — As whei iiiiev<..s came with a pre- tended hue and cry, and required a constable to go with them to apprehend the owner and search his house ; and the owner, at th» «:ummand of the constable, open the door, when the thieves bound the constable and robbed the house ; — this was held to be burglary. 1 Hale 553. 3 Inst. 64. Cromp. 32 (b.) 4 lit. Com. 226. And the like if a man go to a house under pretence of being authorised to make a distress, and by this means obtain admittance. Gas- coigne's case, 1 Leach, 284. For in all these cases, the law will not endure to have its justice defrauded by such evasions. 1 Haiv. c. 38. '^ 5. 4 Bl. Com. 227. What is an Entering. It is deemed an entry when the thief breaketh the house, and his body, or any part thereof — as his foot, or arm, is within any part of the house; or when heputteth a gun into a window which he hath broken ; or into a hole of the house which he hath made^ with intent to kill or murder. 3 Inst. 64. Or where the thief merely puts his fingers within the window. Rex. v. Davis, Rms. 8{ By. 499. But if he shoots without the window, and the bullet only comes in, the point is doubtful. 1 Hale^ 555. Yet Hawkins says, this is a sufficient entry. 1 Haw, c. 38. <^ 11. Where a glass window, which had shutters inside, was broken, and the window was opened with the hand, but the shutters were not broken or opened— this was ruled to be burglary. Rex. v. Roberts, alias Chambers, I East. P. C. 487. But as in this case, Holt. C. J. and Powell, J, doubted, and inclined to another opinion, no Judg- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 If i^ laa Ufi Uii ■2.2 £ 1^ 12.0 I.I 11-25 iU ■ 1.6 ^ 7 ^Ife 7 PhotDgraphic Sciences Corporation ^ ^\ \ ■s. o ^. ^-\ \ ^. >!:« 23 WIST MAIN STRr;!T WiaSTIR.N.Y. USM (71«) t73-4S03 4^ 6^ 84 UtttnlArS* •^i i ment nras given. Bi\t in a recent case, the same point was before the judges, who were of opinion (three being absent) that the entry was sufficient. Bex. v. Bailyt Ruas, fy Ry, 341. If divers come in the night to do a burglary, and one of them break and enter, the rest of them standing to watch at a a dis- tance — tbis is burglary in all. 3 Imt. 64. What ia a JUantion or DtoeUing'houte, 3 % Where the whole of the house is let out into lodgings, and the owner does not inhabit any part of it, though there is only one outer door common to all its inmates, yet every separate apartment is the distinct mansion-house of its possessor. Rex, v. Trapshawt 1 Leach, 427. So where a loft over a coach-house and stables was converted into lodging rooms. JR. v» TSimer^ 1 Leach, 305. But where the owner of a dwelling-house lets off the shop to a tenant, who occupies it by means of a different entrance from that belonging to the dwelling-house, and carries on his business in it, but never sleeps there, it then becomes so severed from the rest of the house, as no longer to be a place where burglary can be committed ; for it ceases to form parcel of the dwelling-house of the owner, being thus severed by lease as well as by the distinct mode of ingress and egress to it; and it does not become the dwelling-house of the tenant, when neither he nor any of his family sleep there. 1 Hale, 557. KeL 83. 4 Bl Com. 225. 2 East, P, C, 507. But if the tenant, or his servant, should usually, or often, sleep in the shop at night, it would then become the dwelling-house of the tenant. 1 Hale, 558. There is no severance, however, where there is any internal communication, though there may be a separate entrance from without to the part let off; as where the communication was formed by means of a trap-door and a ladder, which were seldom used, but the trap-door was never fastened. Lord JEllenborough said it could make no difference whether the communication was through a trap-door, or by a common stair-case. Rex, v, Stockton, 2 Taunton, 339. 2 Leach, 1015. And when the owner of the bouse continues to sleep in it, no part of it then can be so severed, by being let off to a tenant or a lodger, as to become a separate mansion-house. Rex, v, Rogers, I Leach, 89. 2 East, P, C, 507. Unless, indeed, that which was one honse originally comes to be divided completely into two separate tenements, and there is a distinct outer door to each, without any internal communica- tion; in which case, they will then become separate houses. Per Ld, M* Cowp, 8. But if the owner of a house neither inhabits it liimself, nor any of his family» it will not then become his dwel- tic ^hivifiuvu* 85 ling-boiife, ai applicable to the offence of burglary. Tliererore, when a man purchases or rents a bouse with intention to reside in it| and moves some of his furniture into it, but neither he nor any of his family ever sleep there* and it is broken open in the night time, — the judges have determined that a breaking into a house of this description does not amount to burglary. R, v, Lyons, ^Leach, 185. 2 East P. C. 496. R. v. Hallard, 2 East, 498. & Leach, 701. (note a.) R, v. Thompson, 2 Leach, 771. 2 East. 498. Contra I Haw. c. 38. ^18. 1 KeL 46. And this — even though the owner of the house has used it for his meals, and for all the purposes of his business. Rex, v, Martin, Rwe, Sf Ry. 108. Or, though a person actually sleep in the house for the pur« pose of protecting it, if such person forms no part of the domes- tic family of the owner,-— as where the owner puts in a workman or other person, who is in no situation of servitude to him, for the purpose of taking care of his goods. Rex, v. FuUer, 9. East, P. C, 498. 1 Leach, 186. (note h.) Rex, v. Harris, 2 Leach, 701. 2 East, P, C, 498. So if a servant is put into a ware>hou8e to watch goods, this does not make !t a dwelling-house. Rex, t. Smith, 2 East, P, C, 497. But where the owner ot the house has once inhabited it, it will not cease to be his dwelling-house on account of any occasional or temporary absence, provided he has the animiis revertendi — the intention of returning to it ;— >in such cases, the premises may be the subject of burglary. Rex, v, Murray 6f Harris, 2 East. P, C, 496. cit, Fost, 77. But where a person had a country house at which he lived only a part of the year, and then quitted, with a considerable part of his furniture, with no intention of im- mediately returning, and during his absence the house was broken open and rifled — this was held not to be burglary. Fost, 76. 77. And now, by stat. 3 W, 4. c. 4. ^ 10< it is enacted, that no building, although within the same curtilage with the dwelling- house, and occupied therewith, shall be deemed to be part of such dwelling-house, for the purpose of burglary, unless there shal! be a communication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the othen And by <^ 12. accessories befoio the fact shall be punishable as principals. • ..^ Of the time of committing ike Offerix,:. It must be in the night, and, generally speaking, in the dark- ness of the night ; for though the day was formerly accounted to begin only at sun-rise, and to end immediately upon sun-set, yet 86 ilutfil^rs. it 19 now settled that if there be daylight or twilight enough to discern a man's face, there can be no burglary. 3 Inst. 63. 1 Haht 550. 1 Haw. c. 38. § 2. 4 Bh Com. 224. 2 East. P, C. 509. But this does not extend to moonlight, for then many mid- hight burglaries would go unpunished ; and the malignity of the offence, as Blackstone observes, does not indeed so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest ; when sleep has disarmed the owner, and rendered his castle defenceless. 4 Bl. Com. 224. The breaking and entering need not be the same night; for if thieves break a hole in the house one night, with the intent to enter another night and commit a felony, and they accordingly do so, through the hole they made the night before — this seems to be burglary. 1 Hah^ 551. 4 BL Com, 226. Of the Intent. • .'-■.■ The intent of the breaking and entering must be to commit a Jelony. Therefore, if the intention was only to commit a trespass, the offence will not be a burglary. Thus, an intention to beat a man in the house, will not be sufficient ; for though killing or murder may be the consequence of beating, yet if the primary intention were not to kill, a breaking and entering for the purpose of beating, will not amount to burglary. 1 Halct 561. 2 East. P, C. 509. And where a man broke into a house with intent to commit a rape — this was held to be burglary. Rex. v, Gray^ 1 S^r. 481. ' By Stat. 23 G. 3. c. 88. it is enacted, that if any person shall be apprehended having upon him any picklock, key, crow, jack- bit, or other implement, with an intent feloniously to break and enter into any dwelling-house, out-house, &c. ; or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent feloniously to assault any person shall be found in or upon any dwelling-house, ware-house, ' ,h-house, stable or out-house, or in any inclosed yard or garden, or area, belonging to any house, with an intent to steal, he shall be deemed a rogue and vagabond within the intent and meaning of the 17 G. 2. c. 6. Warrant. in the said Home TT rv . • . ) To the Constable of — Home District. J pj^^^.^^ Forasmuch as A. J. of _. yeoman, hath this day made in- formation and complaint upon oath, before me, J. P. esquire, one i^uttrr jinn efirefiie* 87 of his Majisty's justices of the peace for the said district, that yesterday, in the night, the dwelling-house of him the said A. J. at —— i. aforesaid, was feloniously and burglariously broken open, and one silver tankard, of the value of five pounds, of the goods and chattels of him the said A. J. feloniously and burglariously Stolen, taken, and carried away from thence ; and that he hath good cause to suspect that A. O. late of in the township of , in the said district, labourer, the said felony and burglary did commit : These are, therefore, in his said Majesty's name to command you, that immediately upon sight hereof you do appre- hend the said A. O. and bring him before me, to answer the pre- mises, and to be further dealt with according to law. — Herein fail you not. Given under my hand and seal, the day of . BUTTER AND CHEESE. Every farmer and other person packing up butter for sale, shall set upon every firkin and cask, when the same is fully seasoned in water, a continuing visible mark of the just weight of the empty cask, on pain of forfeiting, for every offence the sum often shil- lings, for every cwt. of butter otherwise packed, and so propor- tionably for a greater or lesser quantity; half to the churchwardens and overseers, for the use of the poor, and half, with double costs, to him who shall sue for the same in sessions, by action of debt indictment, information or presentment. 13 && 14 C. 2. c. 26. ^ 5. 6. Also, every potter shall set upon every pot which he shall sell for packing up butter, the just weight of the pot when it is burnt, to- gether with the first letter of his christian name, and his surname at length, on pain of one shilling*; and no person shall expose to sale any butter packed up in any pot not so marked, on pain oi two shillings for every such pet, to be recovered and applied in like manner. 13 & 14 C. 2. c. 26. ^ 6. Every kilderkin ofbutler shall contain 112lbs. and every firkin 561bs. neat, or above; every pound containing 16oz. besides the tare of the cask, of good and merchantable butter; and every pot of butter shall contain 141bs. neat, or above, besides the weight of the pot : and no butter which is old or corrupt, shall be mixed or packed up with any butter which is new and sound ; nor any whey butter shall be packed or mixed with any butter made of cream ; and every cask or pot of butter shall be of one sort and goodness ; and no butter shall be salted with any great salt, but shall be salted and saved with small salt, nor more salt shall be intermixed with it than shall be need- ful for its preservation, on pain, that every owner, farmer, or packer of butter, not putting up in each kilderkin, firkin and pot, to be sold or expovscd to sale, such quantities as aforesaid, or m i^uttrr 9intt etieeioir* offending in false packing as aforesaid, for every ofTence shall for- feit the value of all the butter so false packed ; and for every offence where any kilderkin, firkin or pot, shall be found to contain a lesser quantity of butter than as above, six times the value of every pound of butter that shall be wanting in such cask or pot; to be recovered and applied as aforesaid. 13 ^ 14 C. 2. c. 2G. ^ 5. — And every cheesemonger and other, who shalFsell any kilderkin, firkin, pot, or other cask of butter, shall deliver therein the full quantity and due quality, or shall be liable to make satisfaction according to the price thereof. <^ 3. And no cheesemonger or other person, shall repack for sale, any butter in any kilderkin, firkin or other cask, or pot, on pain of forfeiting double value thereof; to be recovered and applied in like manner. ^ 4. The prosecu- tion for the offences above, shall be commenced in four months after the sate of the butter. ^ 7. But no seller of butter shall be charged with any of the said penalties, after the buyer hath ap- proved thereof. 4 W^^ c. 7. ^ 2. And for preventing any fraud in the seller, after the factor or buyer hath bought the butter, the said factor or buyer shall set his seal, or mark, or name upon it, or upon the cask ; and if it sb«]l afterwards be exchanged or opened, and the cask changed, or any bad butter mixed or packed up with good butter, or an}' other fraud be committed by the seller, and he be convicted thereof before one justice, by oadi of one witness, or confession, he shall forfeit twenty shillings for every firkin and ofience, to be levied by the constable, by distress* and to be dis- tributed by the justice, half to the churchwardens and overseers for the use of the poor, and half to the informer* 4 fV» c» 7. ^ 2. But any person aggrieved may appeal to the sessions, giving j£20 bond to the party to pay costs in a month after, if he is not reliev- ed on his appeal. tV* ^10. Concerning ingroiting and regrating of Butter and Cheese, There is nothing relating to the forestalling of butter and cheese different from the forestalling of goods, which may be seen under the general title of ** Forestalling," but as to ingrossing and regrating the same, by stat. 3. c. 4. Ed, 6. c. 21. no person Khali buy to sell again, any butter or cheese, unless he sell the same again by retail in open shop, fair or market, (or victuallers in their houses) and not in gross, on pain of double value, half to the King and half to the informer; and the word retail shall be taken only where a weight of cheese (viz., 225lbs. in some places 256, in others 356. Dali. c, 112) or a barrel of butter, or less quantity, and not above, shall be sold at any time to any person or persons : and by slat. 5 & 6 Ed. 6. c. 14. whosoever shall in- grofts again, tice. !■■ ,"•■" ^ni^tv^. 89 groM or get into hb hands any butter or cheese, to sell the lanif again* shall be deemed an ingrosser. ^ 3. BUTCHERS. No person using the trade of a butcher, shall sell, ofier or expose to sale, by himself or any other, any fat oxen, steers, runts, kine, heifers, calvet» sheep, or lambs, alive, on pain of forfeiting double value ; half to the king and half to him that will sue« 15, C. 2. c, 8. If any butchers shall conspire not to sell their victuals but at certain prices, every such person shall forfeit for the first offence £10. to the King, and if not paid in six days, he shall suffer twenty days imprisonment, and shall only have bread and water for his sustenance : for the second offence X20. in like manner, or the pillory ; and for the third offence £40. or pillory, and the loss of an ear, and to be taken as a man infamous and not to be credited in any matter of judgment, and the sessions or leet may determine the same. 2 &; 3 Edw» 6. c, 15. A butcher that selleth swines flesh meazled, or flesh dead of the murrain, shall for the first time be grievously amerced ; the second time suffer judgment of the pillory; the third time be imprisoned and make fine, and the fourth time forswear the town* Ordinance for butchers. Haw. stat. V. l,p, 181. If any butcher shall kill or sell any victual on the Lord's day, he shall forfeit six shillings and eight pence, one-third to the in- foriner and two-thirds to the poor, on conviction before one jus- tice, on his ov^n view or confession, or oath of two witnesses, to be levied by the constable or churchwarden. 3 C. c. 1 . No butcher shall water any hide except in June, July and August, on pain of three shillings and four pence for each offence, l» J. c. 22. ^ 2. ; one-third to the King, one-third to the informer, and one-third to the town or lord of the liberty. <^ 46. And t\m sessions may bear and determine the same. ^ 50. Or any two justices near the place may (in three months after the offence committed,) summon the party accused and the witnesses, and upon the party's appear- ance, or contempt in not appearing, on proof of notice given, may examine the witnesses on oath, and give judgment, and issue war- rants under their hands, to levy the penalty by distress ; and if not redeemed in six days the same to be sold : they may also mitigate the penalties, so as they reduce them not to less than a fourth part over and above the costs and charges : and any person aggrieved may appeal to the next sessions, who may finally determine the same, and in cases of conviction issue warrants for levying the penalties. An, c. 11. <^ 36. No butcher shall put to sale any hide putrified or rotten, on pain of three shillings and four pence 90 enUnMr of ^if$mitvf$f $cc. I^r each offence, in like manner. 1. J. e. 22. ^2. No butcher shall be a tanner or currier, on pain of six shillings and eight pence a dayi to be recovered and levied in like manner. 1, J. c, 22. ^ 2. 25. If any raw-hide shall wilfully or negligently be gashed in the flaying thereof, or being gashed, be offered to sale by any butcher or other, the offender shall forfeit two shillings and six pence for such hide, and one shilling' for a calfskin ; half to the poor and half to the informer, to be levied by two justices in like manner. 9. An. c. 11. ^ 11. CALENDAR OF PRISONERS. ; By 3 Hen* 7. c. 3. The sheriff shall certify a list of the prisoners in his custody to the justices of gaol delivery, for the purpose of being calendared. CAPITAL PUNISHMENT. By statute 7 G, 4. c. 3. The court upon the trial of capital offen- ces (excepting murder) if it shall think the offender a proper subject for the royal mercy, may, instead of passing sentence of death, or- der the same to be recorded, which shall have the like effect as are prieve ; and by statute 3 W, 4. c. 4. the preamble of which recites " that it is fit that it should be plainly declared in the statutes of this province, for what crimes offenders shall be liable to be pun- isheu with deaths and that it does not seem to be indispensible for the security and well being of society, that the punishment of death should be inflicted in any other cases than those hereinafter men- tioned, " it is therefore enacted that persons convicted of the fol- lowing offences shall suffer death as felons, viz. — 1. high treason ; 2. murder ; 3. petit treason ; 4. rescuing persons convicted of murder or commitfed for murder ; 5. rape ; 6. carnal knowledge of a girl under the age of ten years ; 7. sodomy; 8. robbery of the person; 9. robbing the mail ; 10. burglary; 11. arson; 12. accessories before the fact to any capital offence ; 13. rioters to the number of 12 or more remaining after proclamation to disperse pursuant to the 1 G. 1. c, br committing other offences mentioned in that act; 14. burning the king's naval stores in any dock-yard." CARRIERS. No Carrier with any horse or horseSi nor waggonman^ carman, or wainman, with their*respective carriages, shall by themselves, or any other, travel on the Lord's day, on pain of twenty shillings, oti conviction, in six months, before one justice or mayor, on view tf«(Ulr* 91 butcher id eight !• J' c. ently be d to sale shillings in; hair justices trisoners rpose of al ofien- • subject Jath, or- ■t as are ii recites Uutes of be pun- iible for of death er men- the fol- reason ; cted of wledge bery of n>; 12. >ters to disperse itioned yard." rman, ves, or liings, 1 view or confession, or oath of two witnesses, to be levied by the consta- ble or churchwardens, by distress, to the use of the poor, and one shilling and three pence to the informer, at discretion of the jus- tices. 3. C. c. 1. {See post Lord's day.) It has been held, that a carrier embezzling goods which he has received to carry to a certain place, is not guilty of felony, because there was not a felonious taking, but is liable only to a civil action. 1 Haw. 89. 90. But if a carrier open a pack and take out part of the goods, with intent to steal it, he may be guilty of felony, in which case it may be said, not only that such possession of a part distinct from the whole, was gained by wrong, and not deli- vered by the owner, but also that it was obtained basely, fradulently and clandestinely, in hopes to prevent its being discovered at all, or fixed upon any one when discovered. 1 Haw. 90, So if a carrier, after he has brought the goods to the place appointed, take them away again secretly, with intent to steal them, he U guilty of felony, because the possession which he received from the owner being determined, his second taking is in all respects the same as if he were a mere stranger. 1 Haw, 90. And if goods be delivered to a carrier, to be carried to a certain place, and he carries them to another place, and disposeth of them to his own use, thi; is felony, because this declareth that his intention origi- nally was not to take the goods upon the agreement and contract of the party, but only with a design of stealing tucm. Kelynge, 82. Where goods are delivered to a carrier, and he is robbed of them, he shall be charged and answer for them, by reason of the hire ; and generally, if a man delivers goods to a common carrier, to carry to a cerlaii: place, if he loses or damages them, an action upon the case^ lies against him, for by the custom of the realm he ought to carry them safely. 1 Bnc. Ab. 343. Where goods are stolen from a carrier, he may prefer an indictment against the fe- lon, as for his own goods. Kelynge^ 39. ,j>i'- CATTLE. No person shall buy any ox, steer, runt, cow, heifer or calf, and sell the same again alive, in the same market or fair, on pain of forfeiting double value, half to the king, and half to him who shall sue. 3 &^ 4 Ed. 6. c. 19. 3 C. c, 4. % 7. 8. And if any person (except drovers licensed) shall buy any o:i, runt, steer, cow, heifer, calf, sheep, lamb, goat or kid, living, and sell the same again alive, unless he keep and feed the same five weeks, he shall forfeit doable value, half to the king, and half to him that shall sue in any court of record ; and also the justices in sessions may determine the same by inquisition, presentment, bill or information, and by exan!ina- €nttu* \i. tion of tiro witneMei, and make proceii (bereupoiii as upon indict- roenti and make estreats for the King's moieCy, and award execu- tion of the other moiety for the complainaiit» by Jieri facitu, or capias f as the courts at Westminster may do* < & 6 Ed, 6. c, 14. ^ 9. 10. By the 3 C. (7. 1. no drover with any cattle shall travel on the Lord's day, on pain of twenty shillings, which may be levied by the constable or churchwarden, by warrant of one justice on con- viction on his view, or by confession-, or the oath of two witnesses ; one-third to the informer, and two-thirds to the poor. (Seejioit Lord's day.) Killing or maiming of cattle, Is made felony by the 9 O. I. e. 22. commonly called the black act. (See that title ante). And for stealing of cattle, fove meiUioned, CENSUS. • By Stat. 4 Gf. 4. c. 7. assessors chosen for any parish, township or place, shall take a correct list of all the inhabitants thereof, in the following form : — NAMES or Heads of families NUMBER IN EACH FAMILY. TOTAL. Males, under 16. Females, under 16. Males, above 16. FemaletL above 16. ; 1 •_, - - ' . - . V ■ • -1 And such assessors shall demand from every inhabitant houses holder, or head of family, a true list of the number of persons I It II ^tnnun. composing luch family, and their respective ages, including pcr> font employed by or resident with such householder ; ond in case of refusal for ten days, shall forfeit 40s. ^ 3. Assessors shall subscribe such list, and deliver the same tn the clerk of the peace before 1st April in each year, and make oath to the correctness of such list, before the clerk of the peace. ^ 4. Within ten days after the town meeting, the town clerk shall notify the persons chosen as assessors, and require them to take the oath prescribed for parish and town officers ; and the town clerk shall transmit to the clerk of the peace, within twenty days after the town meeting, the names of the assessors, with an affidavit that he has duly notified them of their appointment, under a penalty of £3 for neglect. ^ 5. If the assessors neglect the duties imposed upon ihcm, the clerk of the peace shall cause them to be summoned, by one jus- tice, to appear at the next sessions ; and if convicted, or neglect to appear, the court shall impose on them a fine, not exceeding j£lO, nor less than £5. ^ 6. In case the assessors chosen at the town meeting shall ne- glect or refuse to serve ; or in case of vacancy, by death or sick- ness, the justices at any adjourned or special sessions, may appoint others ; and their appointment shall be notified by the clerk of the peace; and the assessors so appointed shall incur the like responsibility for neglecting to take the oath, or fur any other neglect of duty, as assessors chosen at town meetings. ^ 7. The clerk of the pence shall make a general return of the population, and transmit same to the lieutenant governor. ^ 8. The clerk of the peace and assessors shall be entitled to the following fees, to be paid by the treasurer of the district, viz. : Clerk of the peace, fur each return, £l The assessor, for every j£lOO upon the assessment roll, in addition to other remuneration afforded bylaw 3 Town clerk, for every notification, 5 But the assessors shall not receive any fee or reward until the population return shall be filed with the clerk of the peace, and a certificate produced to the treasurer. ^ 9. Fines and forfeitures imposed by this act, except as herein otherwise provided, shall be recovered before any two justices, on the oath of one witness, and may be levied by distress and sale, by justice's warrant ; and one half of the fines shall be paid to the informer, and the other to the treasurer, for the use of the district. eeticomri* 95 For the fonni of information, conviction, and other proceeding! under thii act, see general titles " information," *•* summons," "conviction," " distress warrant," — the act nut having prescribed any particular forms. CERTIORARI. A certiorari is an original writ issuing out of the court of chan- cery or the king's bench, directed in the king's name to the judges or officers of inferior courts, commanding them to certify or to re- turn the records of a cause depending before'them, to the end the party may have the more sure and speedy justice before the king or such justices as he shall assign to determine the cause, 1 Bac, abr, 559. and no proceedings of any court of criminal jurisdiction can be removed into a superior court, but by a writ of error or certiorari^ 2 Haw, c. 1. ^ 14. A certiorari lief in all judicial proceedings, in which a writ of evTOr does not lie, and it is a consequence of all inferior jurisdic- tions erected by act of parliament, to have their proceedings re- turnable in the king's bench. L. Raym. 469. 580. And therefore a certiorari lies to justices of the peace even in such cases which they are impowered by statute, finally to hear and determine ; and the superintendency of the court of king's bench is not taken away without express words. 2 Haw. 286. But it seems agreed that a certiorari should never be granted to remove an indictment aAer a conviction, unless for some special cause ; as when the judge below is doubtful what judgment to give. 2 Haw» 288. Also it seems a good objection against the granting a certiorari, that issue is joined in the court below and a venire awarded for the trial of it. 2 Haw. 288. It hath been adjudged that wherever a certiorari is by law grant- able for an indictment, the court is bound of right to award it, at the instance of the king, because every indictment is the suit of the king, and he has a prerogative of suing in what court he plea- ses. But it seems to be agreed, that it is left to the discretion of the court, to grant or deny it at the prayer of the defendant. 2. Haw. 287. And the court will not ordinarily at the prayer of the defendant grant a certiorari for the removal of an indictment for perjury, or forgery, or other heinous misdemeanor, for such crimes deserve all possible discountenance, aYid the certiorari mighttblay, if not wholly discourage the prosecution. 2 Haw. 287. How to be granted and allowed. 1. On indictment or presentment: by statute 5 W. c. 11. and 8. in 9, W, c. 33. it is enacted " that in term time no writ of cer- errtforatrf. tiorari at the prosecution of any party indicted, shall be granted out of the king's bench to remove any indictment or presentment of trespass or misdemeanor before trial had from before the justi- ces in sessions, unless such certiorari shall be awarded upon mo- tion of counsel, and by rule of court made for the granting thereof. But in the vacation writs of certiorari may be granted by any jus- tice of the king's bench whose name shall be indorsed on the writ, and also the name of the person at whose instance it is granted, and all the parties prosecuting such certiorari, shall before the al- lowance thereof, find two sufficient nianucaptors who shall enter into B recognizance before a justice of the king's bench, (who shall indorse the same on the writ), or before a justice of the peace of the county or place, in the sum of j£20, with condition at the re- turn of the writ to appear and plead to the said indictment or pre- sentment in the said court of king's bench, and at their own cost and charges to cause and procure the issue that shall be filed thereon, or any plea relating thereto, to be tried at the next assizes for the county wherein the indictment or presentment was found, after such certiorari shall be returned, or the next term, if in London, Westminster or Middlesex, unless the court shall appoint another time, and if so then, at such other time ; and to give due notice of such trial to the prosecutor or his clerk in court, and also that the party prosecuting such writ of certiorari shall appear from day to day in the said court of king's bench, and not depart until he shall be discharged by the court. And the said recognizance shall be certified into the king's bench with the certiorari and indictment to be there filed and the name of the prosecutor (if he shall be the party grieved,) or some public officer, shall be indorsed on the said !ndictment. And if the de- fendant prosecuting the writ of certiorari be convicted of the offence for which he was indicted, then the court of king's bench shall give reasonable costs to the prosecutor to be taxed according to the course of the said court, who shall for the recovery thereof within ten days after demand and refusal of paymenr, on oath, have an attachment awarded, and the recognizance shall not be discharged until the costs are paid. But if the person procuring the certio- rari being the defendant, shall not before allowance thereof, pro- cure such manucaptors to be bound as aforesaid, the justices may proceed to the trial of the indictment in sessions, notwithstanding the writ of certiorari delivered. l^ft On a Conviction or Order. By the 13 G,2. c. 18. no certiorari shall be granted to remove any conviction, judgment, order or other proceedings, before any i Certiorari* 97 justice of the peace, or quarter sessions, unless it be Applied for six calendar months after such proceedings had or made, and unless it be duly proved upon oath, |hat the party suing for the same hath given six days notice thereof in writing, to the justice or jus- tices, or two of them, (if so many there be) before whom such pro- ceedings have been, to the end that such justices may sliew cause, if they so think fit, against the issuing, of the certiorari: and by 5 G. 2. c. 19. no such certiorari shall be allowed to remove any such judgment or order, unless the party prosecuting the certiorari, be- fore the allowance thereof, enter into a recognizance with sufficient sureties, before a justice uf the county or place, or before the jus- tices at sessions, where such judgment or order shall have been given or made, or before a justice of the king's bench, in JC50. with condition to prosecute the same at his own costs and charges* with effect, without wilful delay, and to pay the party in whose favor the judgment or order was made, within a month after the same shall be confirmed, his full costs, to be taxed according to the course of the court where such confirmation shall be; and if lie shall not enter into such recognizance, or shall not perform the conditions, the justices may proceed and make such further order, for the benefit of the party for whom the judgment shall be given in such manner, as if no certiorari had been granted : the said recognizance to be certified, into the king's bench, and then filed with the certiorari, and order or judgment removed thereby ; and if the order or judgment shall be confirmed by the court, the per- son entitled to the costs for the recovery thereof, within ten days after demand made upon oath, of such demand and refusal of pay- ment, shall have an ultacliment granted fur the contempt, and the recognizance shall not be discharged till the costs are paid, and the order complied with. E. 1. An. A rule was made in the court of king's bench, that no certiorari should be granted to remove orders of justices from which the law has given an appeal to the sessions, before the matter be determined on the appeal, because it hinders the privi- lege of appealing ; and that if any order be removed before appeal, it should be sent down again. But if the time of appeal be ex- pired, that case is not within the rule. By Holt, chief justice — but afterwards M. 4. An. in the case of Skellington, it was held that advantage must be taken of this rule, upon the motion to file the^order, for that after it is filed it is too late. 1 Salk. 147. The effect of it. After a certiorari is allowed by the Inferior court, it makes all the subsequent proceedings on the record, that is removed by it, a /!^ 90 errKor^ri* erroneous. 2 Haw, 293. But if a certiorari for the removal of an indictment before justices of the peace be not delivered before the jury be sworn for the trial of it, the justices may proceed. 2 Haw, 294. And the justices may set a fine, to complete their judgment, ailer a certiorari delivered. 4 Ray. 1515. A certio- rari removes all things done between the teste and return. 4 Ray. 835. 1305. The return of it. Every return of a certiorari ought to be under seal. 3 Haw. 294. And although the custos rotulorum keep the records, yet must the justices to whom it is directed return the certiorari; and therefore, if it is directed to the justices of the peace, and (he clerk of the peace, only, return It, nothing is thereby removed. 2 Haw. 294. The certiorari may be sometimes to remove and send up the record itself, and sometimes but only the tenor of the record, (as the words therein be) and it must be obeyed according- ly. Halt. c. 195. 2 Haw. 295. If the person to whom a certiorari is directed, do make a false return, yet the court will not stay filing it on affidavit of its being false, except in public cases, as in commissioners of sewers, or for not repairing highways, or for some such special causes, be- cause the remedy for a false return is either an action on the case, rered, that on the — to wit. > in the ytav of the reign, &.c. A. B. of ; C, D. of — — ; and E. F. of——, came before me, J. C. esquire, one of the keepers of the peace, and justices of our lord the King in and for the home district, and acknowledged to owe to nur sovereign lord the King, the sum of £50, of lawful money of Great Britain, to be levied upon their goods and chattels, lands and tenements, to his Majesty's use, upon condition^ that if — — shall prosecute with eAecl, without any wilful or affected delay, at his own proper costs and charges, a writ of certiorari, issued out of the court of our said lord ths King, before the King him- self, at Toronto, to remove into the said court all and singular ihe records of conviction, of whatever trespasses and contempts, against the form of the statute made and passed in the ' year of his Majesty's reign, entitled "an act, &-c." whereof the said — — is convicted before me J. C. esquire, one of ihe keepers of the peace and justices of our said lord the King, in and for the ■ district, and shall pay to ihe prosecutor, vvldiin one month next after the said record of conviction shall be confirmed in the said court, all his said full costs and charges, to be taxed according to the course of the said court ; then this recognizance to be void, or else to remain in full force. Taken and acknow- ledged, the day and year first above said. , J. C. CHAINS. < ft: Bv Statute 25 Gr. 2. c. 37. <§. 5. any judge may appoint the body of a criminal convicted of murder, to be hung in chains. CHALLENGE TO FIGHT. 'ffitn »r A CHALLENGE to fight a duel is a high ofi'ence at law; or even an endeavour to provoke another to send a challenge; and the messenger or bearer of a challenge is equally culpable with him who sends it. 1 Haic. c. 63. § 3. 3 Inst. 158. 4 Bl. Cam. 150. It is no excuse that the challenge is given under provocation, for if one person were to kill another in a deliberate duel, though un- der provocation, it would be murder in him and his second. jR. v. Rice, 3 East, 581. Where the provocation consisted in send- ing an abusive letter, it was held to be a^ indictable offcncCf and 00 eunUenfle (o iPf0tit* I if V ! .nil the act o( sending such a letter, was held to be an act done towards procuring- the commission of the misdemeanor meant to be accom- plished. H. V. Phillies, 6 East. 464. So, words spoken, wliich tend to a breach of the peace, are equally indictable, such as words conveying an express challenge, or a threat to beat another. li. V. Langley, 6 Mod. 125. 2 Ld. R. 1031. And so, any words, which are evidently intended to provoke a party to give a challenge : it has been considered, however, that such words as liar and knave, do not tend immediately to a breach of the peace, though they are motives and mediate provocation for a breach of it. King's case, 4 Inst. 181. The punishment for this offence is discretionary hy fine and imprisonment^ and is guided by such circumstances of aggravation, as appear in each particular case. 1. Haw. c. 63. ^ 21. Rex, v. Rice, 3 East. 384. i Indictment for sending a Challenge. (Arcbdold.) Home District, > The jurors for our lord the King upon their oath to wit. 3 present, that J. S. late of the township of • ■■• in the county of ■ in the home district, gentleman, being a per- son of a turbulent and quarrelsome temper and disposition, and contriving and intending not only to vex, injure and disquiet, one J. N. and to do the said J. N. some grievous bodily harm, but also to provoke, instigate and excite the said J. N. to break the peace, and to fight a duel with and against him the said J. S. on the - day of in the ■ year of the reign of our sove- reign lord William the fourth, at the township aforesaid, in the county and district aforesaid, wickedly, wilfully and maliciously did write, send and deliver, and cause and procure to be written, sent and delivered, unto him the said J. N. a certain letter, and paper writing, containing a challenge to fight a duel with and against him the said J. S. and which said letter and paper writ- ing is as follows, (here set out the letter with such inuendoes as may be necessary,) to the great damage, scandal and disgrace of the said J. N. in contempt of our lord the King and his laws, and against \\\s peace of our lord the King, his crown and dignity. 2nd count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. contriving and intending as aforesaid, afterwards, to wit, on the day and year aforesaid, with force and arms, at the township aforesaid, in the county and dis- trict aforesaid, wickedly, wilfully and maliciously, did provoke, instigate, excite and challenge the said .T. N. to fight a duel with and against him the said J. S. to the great damage, scandal and disgrace of the said J. N. in contempt of our lord the King and (Ht^nnmptvin* ^t. IQl his laws, and against the peace of our lord ihe King liis crown and dignity. CHAMPERTY. Champerty is a bargain made with a plaintiflf or defen'iant in any 8ur% to have part of the land, or debt, or oMier :l)ing sued for, if the party litigant prevails in the action or suit, the chamjpertor agreeing to carry on the suit at his own expense; it amounts, in fact, to a purchase of the suit; a practice which, BlacJcstone says, is so much abhorred by our law, that it is one main reason why a chose in action is not assignable at common law, because no man should purchase any pretence to sue in anothcrs righ(. 4 131. Com. 135. This oflence is a species of maintenance, and punishable by fine and imprisonment. Ibid. CHANCE MEDLEY. Chance Medley is where homicide is committed by a man upon a sudden affray, in his own defence. 4 lil. Com. 184. The true criterion between chance medley and manslaughter , seems to be this,— where both parlies are actually combatting at the same time when the mortal stroke is given, the slayer is then guilty of man- slaughter ; but if the slayer hath not begun to fight, (or having begun) endeavours to decline any further struggle, and afterwards, being closely pressed by his adversary, kills him to avoid his own destruction, this is chance medley^ or homicide excusable by self- defenct. Ibid. The party assaulted, tlierefore, in order to excuse himself in killing his assailant, must flee from him as far as he con- veniently can, either by reason of some wall or ditch, or other impediment, or as far as ihe Jierceness of the assault will permit him ; for it may be so fierce as not to allow him to yield a step with- out manifest danger of his life, or enormous bodily harm, in which last predicament he may, in his own defence, kill his assailant in- stantly. 1 Halct P' d' 483. The penalty anciently inflicted on any one who had committed chance medley^ seems to have been a forfeiture of a portion of the goods and chattels of the party, by way of fine. Fast. 287 ; which however was remitted to him, as a matter of course, on his suing out, and paying for a writ of restitution. 2 Haw. 381. But to prevent this expense, in cases where the death has happened noto- riously, by misadventure or in self-defence, the judges nowjilways direct a general verdict of acquittal. Font, 28f?. A Bl. Ccm. 188. Note (1.) I 102 Qtfitntf^. % CHEATS. Bif the Common Law, ' :i',' Cheats, which are punishable by the common lair, may in gene- ral be described to be deceitful practices, in defrauding or endea- vouring to defraud another of his known right, by means of some artful device, contrary to the plain rules of common honesty; as by playing with false dice ; or by causing an illiterate person to exe- cute a deed to his prejudice, by reading it over to him in words different from those in which it was written j or by persuading a woman to execute writing to another, as her trustee, upon an in- tended marriage, which in truth contained no such thing, but only a warrant of attorney to confess a judgment; or by suppressing a will, and such like. 1 Haiv. 188. On an indictment against the defendant, a miller, for changing corn delivered to him to be ground, and giving bad corn instead of it, it was moved to quash the same, because it was only a private cheat, and not of a public nature. It was answered, that being a cheat in the way of trade, it concerned the public, and therefore was indictable, and the court unanimously agreed not to quash it. T. 16. C. 2. A', and Wood. Sess. C. V. I. 217. The selling of unwiiolesome provisions is^ fraud indictable at common law. 4 BI. Com. 1G2. 2 East. P. C. 822. B. v. Johns- ton, 6 East. 133. Where a person who was committed to gaol under an attach- ment for a contempt in a civil action, counterfeited a pretended discharge, (as from his creditor) to the sheriff and gaoler, under which he obtained his release from gaol, it was held that this was a cheat and misdemeanor at common law, in thus effecting an in- terruption to public justice. It. v. Fawcctt, 2 East, P. C. 862. 952. Public officers are also indictable for frauds committed in their public capacities ; thus, where two persons enabled others to pass their accounts with the pay office, in such a way as to defraud the government, they were held to be indictable for the fraud. R. v. BambridgCf Cit. 6. East. 136. A surveyor of the highways may be indicted for converting to his own use, gravel which had been dug at the expense of the inhabitants of the paris=h, and for em- ploying for his own private gain and emolument, the labourers and teams of the parishioners, which he ought to have employed in re- pairing" the highways. 3 Chit. C. L. 666. So also, any fraud which is practised on the public by means o( false WfAghts, or measures, or any false ioJcen, having the semblance of public au- thority, and purposely calculated for deceit, and by which the public iray be imposed upon, without any imputation of folly or negligence, is indictable at common law. 2 East. P. C, 820. As, .!«> csrAt0. 103 where a pereon tells corn in a bushel sliort of the statute measure, or puts something into the bushel to help to fill it np. R.v.Pinck- ney, 2 East, P. C. 820. There appears, however, to be this distinction — where a man sells by false weights or measures, it is an indictable offence, but if without false weights or measures, he sells merely a less quantity than he pretends to sell, he is not then indictable, but liable only in an action for the deceit. i2. t;. Young, 3. r. R. 104. per Bullert J, R, v. Nicholson, Cit. 2. Burr, 1130. R, V, Driffield, gay, 146. , , , f»K>i 'n -^ By Statute, ' sit.. By Stat. 33 H. 8. c. 1. If any person shall falsely and deceit- fully obtain, or get into his hands or possession, any money, goods, chattels,jewels or other things, ofany person, by colour and means of any false privy token or counterfeit letter, made in another man*s name, and shall be convicted thereof, by examina- tion of witnesses, or confession, at the assizes or sessions, or by action in any court of record, he shall have such puni&hment by imprisonment, pillory or other corporal pain, ("except death) as the court shall appoint, saving to the party grieved such remedy by . action or otherwise, for the goods so detained, as he might have had by the common law ; and two justices may call and convent by process or otherwise, to the assizes or sessions, any person sus- , pected, and commit or bail him to the next assizes or sessions, '<^ ' By Stat. 30 G, 2. c, 24. all persons who knowingly and design- edly, by false pretences, shall obtain from any person, goods, wares or merchandizes, with intent to cheat or defraud any person of the same, or shall knowingly send or deliver any letter or writ- ing, with or without a name subscribed thereto, or signed with a fictitious name, letter or letters, threatening to accuse any person of any crime punishable by law with death, transportation or pillory, . or any other infamous punishment, with intent to extort from hira any money or other goods, shall be deemed offenders against law and the public peace ; and the court before whom any such oiT-^ndeir shall be tried, shall, on conviction, order him to be fined and im- prisoned, or to be put into the pillory, or publicly whipped, or to be transported as soon as conveniently may be for seven years. <§> 1. And any justice before whom any person charged on oath, with having committed any of the otfcnces intended by this act to be punished, shall be brought, shall examine by oath, and such other lawful means as to him shall seem meet, touching the matters com- plained of, and deal with the ofTcMuIer according to law ; and if the party charged as being the oHender, shall be committed to prisoii^ or admitted to bail, to answer the matters complained of, at the 104 enrati^. ♦* next sessions or assizes, the said justice siiall bind over the prose- cutor to appear and prosecute such offender, with effect ; and if such goods so fraudulently obtained, appear to such justice to ex- ceed the value of i)20. the recognizance shall be in not less than double the value of the goods. "^ 2. • And if any person shall knowingly aitd designedly pawn, or exchange, or unlawfully dis- pose of the goods of any other person, not being employed or authorised by the owner so to do, shall be thereof convicted by the oath of one witness, or confession before one justice, he shall for- feit twenty shillings, and if not forthwith paid, the said justice shall commit him to the house of correction, or some other public prison of the place where he shall reside or be convicted, there to remain and be kept to hard labour for fourteen days, unless the forfeiture be sooner paid ; and if within three days, before the expiration of the said fourteen days, the said forfeiture shall not be paid, the said justice, upon application of the prosecutor, shall order him to be publicly whipped in such house of correction or prison, or in some open public place of the city, division, town or place, wherein the said offence shall have been committed, as to such justice shall seem proper : the said forfeitures, when recovered, to be applied towards making satisfaction thereout to the party injured, and de- fraying the costs of the prosecution, as shall be adjudged reasonable by such justice ; but if the party injured shall decline to accept of such satisfaction or costs, or if there be any overplus of the same, then such forfeitures or ovei^)lus shall be for the use of the poor &ic. ■■-r'i- .'■■■'-- ■ * '■.",. ' - Warrant of two Justices to apprehend an Offender^ on the 33 H. 8. c. 1. (Burn.) Home District, > To the Constable of in the said district. to wic. S Whereas complaint hath been made unto us whose names and seals are hereunto set, two of his majesty's jus- tices of the peace for the said district, upon the oaths of A. I. of — — yeoman, and B, I. of yeoman, that en the — — day of — — A. O. of—— yeoman, did by a false privy token, [or coun- terfeit letter] that is to say, by [here particularize the offence] falsely and deceitfully obtain and get into his hands and posses- sion, [here mention the things] from C. 1. of contrary to the statute in that case made. These are therefore to command you, upon sight hereof, forthwith to bring the said A. O. before us at ■ to answer to the said complaint, and further to be dealt with according to law. Given under our hands and seals the day of—. k^i'i \ CHILDREN. 105 A CHILD under ter ^eerrs of age cannot be punished for any capital offence, whatever ^ i>cumstances of a mischievous nature may ap- pear. Molr, £.4^6. Flowd, 19. 1 HaUt 20. FotU 349. 4 BL Com, 23. Cowp» 222. 3. From a supposed imbecility of mind, the protective humanity of the law will not, Vithout anxious circumspection, permit an infant under 14 to be convicted on his own confession. Cro, Jac. 446. I Hale, 24. Fost. 70. Yet, if it appear, by strong and pregnant evidence and circumstances, that he was perfectly con* scious of the nature and malignity of the crime, a jury may then find him guilty, and judgment of death may be given against him. 1 Hale, 20. 25. 434. Fost. 71. 4 Bl. Com, 23. O.B. 1784. p. 971. On the attainment of 14 years of age, the criminal actions of infants are subject to the same mode of construction as those of ^he re$t of society ; /or the law presumes that the human mind has acquired at this period a complete sense of right and wrong. Doct. Sf St. c. 26. Co. Lit. 79, 171. 247. Dalt, 476. 505. 1 Haw. c, 1. (note 1.) See post Orphan Children. -, ' CHURCHWARDENS. Bt Stat. 33 G. 3. c. 2. ^ 7. it is enacted, that as soon as there shall be any church built for the performance of divine service according to the use of the church of England, with a parson or minister duly appointed thereto, then the inhabitant household- ers shall choose and iiominate one person, and the said parson or minister shall nominate one other person, which persons shall jointly serve the ofSce of churchwarden ; and that such church- wardens, and their successors, duly appointed, shall be as a cor- poration to represent the inhabitants of the township or parish, and as such may have a property of goods or chattels of the parish, and may sue or defend in all preseutments, indictments or actions, for the inhabitants of said parish. ^ 7. A list of the persons so nominated shall, forthwith, be communicated to a magistrate of the division, who may swear the same into office. Form of the Oath. You, A. B. do promise and swear, that you will faithfully, diligently and justly, serve and perform the office and duties of churchwarden, for the parish (or township) of——, according to the best of your abilities. — So help you God. . ^. ^ 106 €Uv(m UtntviHUT$ct. And every person having taken such oath shall be held to be lawfully appointed. <^ 9. A penally of 40s. is innposed unon any person neglecting or refusing to signify his consent to e..ter upon such office, and to take the oath, within 7 days after such nomination; and any two justices may hold a special session for the purpose of naming others to ^erve the office, whose neglect or refusal to serve will be liable to the same penalty. .^ > . CLERGY UESERVES. (The origin of this description of property will be found in the Constitutional Act of 31 G, 3. c. 31. — See pott Constitu- tional Act.) By Stat. 59 G. 3. c. 7. ^ 2. crown and clergy reserves actually leased to individuals, shall be liable to the same rates and assess- ments as other lands ; but no greater interest shall be sold for arrears than is possessed by the lessees. G G, 4. c. 7. ^ 15. By Stat. 7 ^ 8 G. 4. c. 62. the lieutenant^overnor, with the consent of the executive council, in pursuance of any instructions that may be issued through the secretary of slate, may sell, alienate and convey, in fee simple, or for any less estate, a part of the clergy reserves, (not exceeding 100,000 acres) upon such con- ditions as his Majesty, by such instructions, shall direct ; and the monies arising from such sales shall be invested in the public funds of Great Britain, and the interest appropriated to the improve- ment of the remaining part of the said reserves. it,), ■ »?• CLERK OF THE PEACE. The clerk of the peace is an officer belonging to the sessions of the peace; and his duty is to read indictments, enrol the proceed- ings, draw the process, and record other matters which appertain to the jurisdiction of the quarter sessions. He also certifies into the court of king's bench transcripts of indictments, outlawries, attainders, and convictions had before the justices of the peace within the time limited by any writ of certiorari directed to the justices to return such proceedings ; and he ought to be an able and sufficient person residing in the county or division for which he is appointed. Deacon's C. L. 246. The clerk of the peace is appointed by the lieutenant governor, by commission under the great seal of the province, and holds his office quamdiu sc bene gesstrit. He may also execute his office by deputy. 37 H. 8. c. 1. _ . , C^UvU of iiu ^(utt. 107 By itat. 1 fV. (f M c. 21. ^ 0. if he shall misdemean himself in office, and a complaint in writing be exhibited against him to the justices in sessions, the justices may, on examination and due proof thereof, suspend him from his office ; and before entering upon the execution of his o^ce, must take the following oath, be- sides the oaths of allegiance, supremacy and abjuration. ^ 8. I A. B. do swear, that I have not, nur will pay any sum or sums of money, or other reward whatsoever, nor give any bond or other assurance, to pay any money fee or profit directly or indi- rectly, to any person or persons, whomsoever fur such noinina- tion and appointment. So help me God. Duties of his Office. (oicKENSoff.) The Clerk of the peace by himself, or his sufficient deputy, must be in constant attendance on the court of quarter sessions. He gives notice of its being holden or adjourned ; issues its pro- cesses ; records its proceedings, and does all the ministerial acts necessary to give effect to its decisions. It is his duty when pro- secutors do not choose to seek professional assistance, to draw bills of indictment. In the actual course of the sessions it is his duty to read the acts directed to be .-ead in sessions; to call the jurors and make known their defaults and excuses to the courts ; to call the parties under recognizance, whether to prosecute, plead or give evidence ; to present the bills to, and receive them from the grand Jury ; to arraign prisoners ; to receive and record verdicts ; to ad- minister all oaths, and make true entries of all proceedings. By an ancient statute, he is bound to certify to the court of king's bench, the names of such as shall be outlawed, attainted, or con^ victed of felony ; and if he shall discharge or conceal any fine or forfeiture, unless by rule of court, he is liable to forfeit treble value, half to the king and half to him that shall sue, to lose his office, and be incapacitated ever to hold any office connected with the revenue. 22 23 Car. 2. c, 22. '^ 9. Neither he, nor his deputy, may act as solicitor, attorney or agent, or sue out any process at any general quarter sessions, where he shall execute the office of clerk of the peace, or deputy, on pain of <£50. 22 G.2. c. 46.^4. ■' ' ' n A ■■ His duties also hy Provincial Statutes. " . To register recognizances of inn-keepers, and to make a return to the quarter sessions yearly. 34 G, 3. c. 12. § 6. ; and to cause the names of persons under recognizance to be affixed in two pub- lic places in the district. lb. To transmit quarterly to the inspec- tor general, a statement of the rate of duties for licenses, under the order of sessions. 59 G. 3. c. 2. '^ 7. To return to the lieu- 108 eurlt of tdr i^Ace. P''4 MDtnl governor*! office, certified copies of returni of population, ai given in by the town clerks. 60 O. 3. c. 2. ^ 3. 4 O. 4. c. 8. ^ 7. To receive the assessment lists from the assessors, and lay the same before the quarter sessions. 59 G, 3. c. 7. ^ 7. To transmit to the lieutenant governor, before the end oi' January in each year, an aggregate account of all property assessed. lb, ^ 17. To make out writs to the sheriff for levying the arrears of assesS' ments, by the sate of a portion of the lands on which rates are charged, if no distress can be found thereon. 6 O, 4. c. 7. <^ 7. ; such writs to be returnable at the third quarter sessions ensuing the issuing thereof. <^ 8. To givie notice, within eight dayg, to persons chosen parish and town officers by quarter sessions, when no town meetings held, to take the oath of office within eight dayg. 46 O. 3. c. 5. ^ 3. The constable being bound to serve such no- tice, when required to do so by the clerk of the peace. <^ 4. To grant certificates graft's from the records of any conviction or par- don granted. 40 O. 3. c. 1. <^ 6. To deliver to the sheriff annu- ally, a list of jurors duly classed. 34 Gr. 3. c. 1. "^ 1. To read the 45 Gf. 3. c. 2. (heir and devisee act) at every quarter sessions. ^ 14. To certify claims of heirs and devisees. <^ 8. To make out a list of land claims every three months, and affix it publicly in the court-house. 48 G. 3. c. 10. ^ 6. To transmit to the sheriff, an- nually, before the 15th July, a list of persons assessed for ^200. and upwards. 48 G. 3. c. 13. <^ 3. To record roads that have passed at quarter sessions. 50 6r. 3. c. 1. ^ 1. To transmit to the inspector general, on or before the 1st May and 20th Febru- ary, annually, lists of all licenses issued. 56 G. 3. c. 3. ^ 5. The clerk of the peace should also make a return to the crown officers, of all forfeited recognizances, in order that the parties in default may be prosecuted thereon. He is virtually also the custos rotulorumy or keeper of the records of the district. Sessions Fees due to the Clerk of the Peaec^ and to be paid out of the District Funds. 47 €?. 3. c. 11. Drawing the precept, and attending commissioners to sign the same, and transmitting it to the sheriff,. ,,,£l Attending each quarter sessions, 1 10 Making up the records of each sessions, ............ 2 10 Notice of every appointment, ......»,,,,.,.,.,,,, 1 List of jurors, every 100 names, , 2 6 Making up estreats of each session, and transmitting same to the inspector general, 5 eoin. 109 Tube paid by tht Partitt. »*<■ I '■ Every recognitance for tiie peace or good behaviour, .£060 Kor discharging the same , 2 6 Subpoena, 2 Bench warrant, 6 Drawing indictment, , , , 10 Allowance of c .liorari, 6 Sec. 2. This act not to deprive the clerk of the peace of such other fees as are allowed by act of parliament, for ulher services. Other Fees to be taken by the Cleric of the Peace. On each assessment, 69 G. 3. c. 7. ^ 7 ,£l 10 For aggregate account of assessments, transmitted to lieutenant governor, 69 Gr. 3. c. 7. ^ 17 1 10 For each writ for levying rates in arrear, by sale of lands, 6 G. 4. c. 7. <^ 26 10 For each certificate of Dower, 37 G. 3. c. 7. ^ 2. 60 G. 3. c. 10. ^ 2 6 For each certificate of alienation, of real estate, by fem- mes covert, 2. G. 4. c. 14. <^ 2 6 For certificates to ministers of church of Scotland, to authorise their marrying, 38 G. 3. c. 4. <^ 2 6 For certifying notices, under the heir and devisee act, 46G.3.C.2 2 6 For transmitting lists of licenses to inspector general, on the 1st May and 20th February, annually, 66 G. 3. c. 3. % 6. for each list ; . . 1 10 Form of appointment of a Deputy. I, A. B. clerk of the peace in and for the home district, do here- by make, substitute and appoint, C. D. of ■ in the said district, gentleman, my true and lawful deputy, in the office of clerk of the peace for the said district, so long as I shall hold the same, and during the continuance of my will and pleasure. Witness my hand and seal, this -^— day of 18 — . COIN. 7 ■••^'' -' By Stat. 36 G. 3. c. 2. Certain coins are made current in this Province, viz. : — the British guinea at £\. 3s. 4d., thejohannes of Portugal at £4., the moidore of Portugal at <£l. 10s., the Ameri- can eagle at £2. 10s., the Briti'ih crown at 6s. 6d. the British shil- ling at Is. Id. the Spanish milled dollar at 5s. the Spanish pistareen no m^oin. M ''"^IS % at Is., the French crown at 5s. 6d., the French piece of four livres ten sols tournois at 4s. 2d., the French piece of 36 sols tournois at Is. Id., the American dollar at 5s. ^ 3. any person who shall color, gild, or case with gold or silver, or with any wash or mate- rials producing the color of gold or silver, any coin of coarse gold or of base metal resembling such foreign coin, or who shall gild over any piece of silver resembling any such foreign coin ; or who shall bring or cause to be brought into this province, any forged or counterfeited money like to the said foreign gold or silver coin, knowing the same to be forged or counterfeit ; or any coin of coarse gold or silver, or base metal colored, gilded, or cased over with gold or silver, or with any wash, or materials producing the color of gold or silver, and resembling any such foreign coin, or any piece of gilded silver resembling any such foreign coin, knowing the samp, shall be guilty of felony. <§! 4. Any person knowingly uttering or tendering in payment, any such false or counterfeited money, upon conviction, shall suffer one years' im- prisonment, and be set in the pillory fur one hour; and for a second offence be adjudged guilty of felon}'. <§' ^' Any person importing false or counterfeit brass or copper money, in order to sell or pass the same, shall be iir. prisoned at the discretion of the court ofK. B. not exceeding twelve months, ^ 6. and such false or counterfeit brass or copper money may be seized and defaced in open court, or in the presenceof a justice, <^ 9. any suspected gold, silver, or copper mone}', tendered in payment, may be cut, broken or defaced, by the person to whom it is tendered, but if found to be good, he shall receive the same at the rate it was coined for, <^ 10. and if any question shall arise whether it be false or counterfeit, it shall be determined by a justice, who, if he shall have any doubt, may summon three indifferent persons, the majority of whose opinions shall be final.— See also, 49 G. 3. c. 8. 7 G. 4. €.4. 11 G. 4. c. 6. Where a defendant was indicted for a misdemeanor, in having coining instruments in his custody, with intention to coin half guineas, shillings and sixpences, and to utter them as and for the legal current coin, the court held the offence to be a misdemeanor, and the conviction right; Lee, C.J. saying, that ''all that wai! necessary in such a case, was an act charged and a criminal inten- tion joined to that act." Stiffoti's case, Rep. temp. Hardio. 370. 2 Str. 1074. So will an indictment lay for making coining in- struments, and having them in possession, with intent to make counterfeit money. Brandon''s case, Old Bailey, 1698. Also, against a party for buying counterfeit shillings, with an intent to utter them for payment. Cox^s case, Old BaiUy, 1690. And so, having a large quantity, of counterfeit coin in possession, under suspicious circumstances and unaccounted for, is punishable as a CoUtctov of MnUf$. Ill misdemeanor. Rex, v. Fuller and liobinsont East. T. 1816. M. S. BayUy^ J. Russ. and Ry, 308. Commitment for uttering Counterfeit Coin. (Toone.) J. C. esq. one of the justices of our lord tiie King assigned to keep the peace within the home district, to the constable of in the said district, and to the keeper of the common gaol at i in the said district. Home District, > These are to command you, the said constable, in to wit. i his Majesty's name, forthwith to convey and de- liver into the custody of the said keeper of the said common gao), the body of E. F. charged tiiis day upon the oaih of A. B. before me the said justice with having on the day of at . in the said district, unlawfully and deceitfully uttered and paid to him the said A. B. one piece of false money, made and counterfeited to the likeness and similitude of a British crown, of the lawful and current money of this province; the said £. F. then and there knowing the said piece of money to have been false and counterfeit ; and you, the said keeper, are hereby required to re- ceive the said E. F. into your custody, in the said common gaol, and him there safely keep until he shall be from thence discharged by due course of law. Given under my hand and seal, Sfc. J. C. COLLECTOR OF KATES. By Stat. 33 G. 3. c. 2. '^ 4. one collector for each township is to be chosen at the annual town meeting, on the first Monday in March, {by the 57 G. 3. c. 7. >§> 2. aliered to January) every year, who is to collect the rates. If he neglect or refuse to be sworn into office within seven days after his nomination, he shall pay a fine of forty shillings, to be recovered before one justice, upon proof by con- fession, or oath of one witness, and the same shall be levied by warrant of distress, and paid lo the treasurer, towards the public stock of the district; and any two justices may hold a special ses- sions and appoint another to the office, whose neglect or refusal shall be subject to the like penally. The collector is to pay over all monies received, once in three months, to the treasurer of the district, 53 G. 3. c. 0. <^ 1. and to give a bond with the following condition. '^2. ; . > , . s-r,j ( Form of Condition. « » . »; I » «,» The condition of this obligation is such, that if the above boun- den A. B. shall collect and levy all the rates and assessments of the township or townships of for the present year, ending on 112 eoUrctov of mm ir.o« the first Monday of January next, so far as the law may enable him so to do, and shall pay all the monies which he shall so collect and levy, to the treasurer of the said district, once in every three months^ or oftener, if thereto required by the magistrates in gene- ral quarter sessions assembled, and if the said A. B. do well and truly collect and pay, by the different payments to be made as aforesaid, the whole amount of all monies received by him, on or beforet he 1st day of January next ensuing his appointment as collector, then this obligation to be void, or else in full force. ^ ' ' If the collector refuse to give such bond, the quarter sessions shall appoint another. 46 G. 3. c. 5. ^ 9. £5. per cent, allowed such collector on monies collected and paid over. <^ 11. The clerk of the peace is required to furnish each collector with a certified copy of the assessment roll, which shall be a sufficient authority for the collector acting upon. 59 G. 3. c. 7. § 7. * And if any person shall refuse to pay his rates for the space of fourteen days after demand made by the collector, the said collector is au- thorised to levy the same by distress and sale of the goods and chattels of the person so neglecting or refusing to pay, by warrant from a justice. § 9. And in cases where lands are unocupied, and no distress can be found, the collector for the time being, at any time after, may distrain for the rates, first obtaining a justice's warrant. § 13. Information of the Collector to ground a Warrant of Distress for levying a Rate. Home District. The information and complaint of A. B. of the township of— ^— in the home district, collector, taken on oath, this — — day of 18 — , before me D. F. esq. one of his Ma- jesty's justices of the peace fur the said district. The said infor- mant saith, that A. O. of the township of in the said district, yeoman, is duly rated in the assessment roll of the said township, for the year (a certified copy whereof is now produced) at the sum of and that he, this informant, did on the day of last, duly demand of the said A. O. the payment of the said rate, but that the said A. O. did not then pay the same, nor hath he at any time since paid the said rate, or any part thereof, to this informant, but that the same remains wholly in arrear and unpaid, and therefore this informant prayeth a warrant to levy the same, pursuant to the statute in such case made and provided. ^'» ". Sworn before me. iv .', Warrant of Distress. Home District, ) To A. B. collector of the township of to wit. I the Home District. Whereas complaint in writing, hath this day been made and ex ^ommitmtnU 113 hibited to me D. F. esq. one of his Majesty's justices of the peace for the said district, by and upon tlie oath of A. 13. collector of the said township, that A. O. of the said township, yeoman, having been duly rated, at the sum of jC — in the assessment roll of the said township, for the year a certified copy whereof hath been exhibited and shewn to me the said justice, hath for the space of fourteen days and upwards, after demand thereof made by the said collector, neglected and refused to pay the said rate, and that the same is now wholly in arrear and unpaid. These are there- fore to authorise and command you, forthwith to make distress of the goods and chattels of the said A. O. and if within the space of — — (not less than four nor more than eight days ; see 27 G, 2. c, 20.) days after the making of such distr^s, the said sum, toge- ther wjth the reasonable charges of taking and keeping the said distress, shall not be paid, that then yon do sell the said goods and chattels so by you distrained, and out of the money arising by such sale, that you do retain the sum of £ — , in satisfaction of the said rate, together with the reasonable charges of distress and sale, ren- dering the overplus, on demand, unto the said A. O. Given under ray hand and seal the day of in the year of the reign of our sovereign lord William the fourth, and in the year of our Lord 183 — . COMMITMENT. There is no doubt but that persons apprehended for offences which are not bailable, and also, all persons who neglect to offer bail for offences which are bailable, must be committed. 2 Haw. 116. and wheresoever a justice is impowered by any statute to bind a person over, or to cause him to do a certain thing, and such person, being in his presence, shall refuse to be bound, or to do such thing, the justice may commit him to the gaol, there to remain, till he shall comply. 2 Haw. 116. If a prisoner be brought before a justice, expressly charged with felony upon oath, the jus- tice cannot discharge him, but must bail or commit him. 2. Jf. H. 121. But if he be charged with suspicion of felony only, yet if there be no felony at all proved to be committed, or if the fact charged as felony be in truth no felony in point of law, the justice may discharge him ; but if a man be killed by another, though it may be misadventure, or self defence (which is not properly felo- ny), or in making an assault upon a minister of justice in execution of his office, (which is not at all felony) yet the justice ought not to discharge him, for he must undergo his trial for it, and therefore he must be committed.H.2 H* H, 121. U 114 cowitiftmene. ii? 'i ,:>;..! Set aho further on thi$ subj»et, tith " Bail." (AnU.) A metrried woman may be committed, who is a material witness upon any charge of felony, if she refuses to find sureties for her appearance at the sessions. Bennett, v. Watson. 3 M» fy S. I, And so with regard to witnesses generally ; if they refuse to be bound over to appear on the prosecution, they may be committed, and minors or infants under 21 years of age, as well as married women, are liable to find sureties. A justice of the peace in Eng- land may commit a person to prison in England, for an ofience committed in Ireland, in order that the offender may be sent over and tried there. R, v. Kimberley. Str. 848. and so upon the same principle a justice of the peace in Canada may commit to gaol in this province, any person charged with felony committed in England, Scotland, or Ireland. * Where contemptuous and libellous words are spoken of a justice of the peace in the execution of his office, and in his presencCf it seems that he may commit the party for a contempt. Ji, v. Ravel, 2. SalJc, 420. Mayhew, v, Locke, 7. Taunton, 63. By Stat. 5 H. 4. c. 10. all felons shall be committed to the common gaol, and not elsewhere. But by stat. 6 G. c, 19. va- grants and other criminals, offenders, and persons charged with small ofiences, may for such offences, or for want of sureties, be committed either to the common gaol, or house of correction, as the justices may think proper. If a man commit felony in one county, and be arrested for the same in another county, he may be committed to gaol in that coun- ty where he is taken. Valt, c, 170. and if he escape and is ta- ken on fresh suit in another county, he may be carried back to the county where he was first taken. Dalt. c, 170. also by stat. 24 6r. 2. c, 55, if a person is apprehended upon a warrant, indor- sed in another county for an offence not bailable, or if he shall not there find bail, he shall be carried back into the first county, and be committed (or if bailable, bailed) by the justices in such first county. ,, ,, , . , . . r Form of the Commitment. It must be in writing either in the name of the king, and only tested by the person who makes it, or it may be by such person in his own name, expressing his office, or authority, and must be di- rected to the gaoler or keeper of the prison. 2 Haw, 19. It should contain the name and surname of the party committed, if known, if not known, then it may be sufficient to describe the per- son by his age, stature, complexion, colour of his hair, and tlie like, and to add that he refuseth to tell his name. 1 H. H. 577. It should set forth that the party is charged upon oath. 2 Hav:, eommiltnrnt 115 120. It ought to contain the caut« as for treason, or felony, or suspicion thereof; otherwise the prisoner would not only be en- titled to his discharge, under ihe habeas corpus act, but if no cause be expressed, and the prisoner escape, neither himself nor the gaol- er would be punishable for the escape ; whereas if the commit- ment contain the cause of imprisonment, the escape itself will then be an offence of the same degree as that for which the party was committed. 2 Imt, 52. 591. The cause also should be stated with sufficient certainty y in order that the party may know for what he is committed, and that it may appear to the court or judge, upon a habeas corpust whether the cause assigned for the commit- ment was a legal one or not. Therefore if the commitment be for felony, the warrant ought not to state generally /or /e/ony, but it should the special nature of the felony; as felony /or the death of J, S» or burglary in breaking the house of J. S. ; otherwise the court could not determine whether the offence amounted to felony or not. 2 Hale, 122. 2. Inst. 592. 1. Ld. Ray. 213. Although the form of a commitment for trial may be defective, yet the committing magistrate may issue a warrant of detainer remedying the defect, and this, even after the issuing of a^a^eas corpus R. V. GordoUyl B, Sf A. 572. But where the commit- ment is final and by way of punishmenty it is essentially necessary that the offence (for which the commitment is made) be described with certainty : a commitment therefore of a person, as an appren- tice or servant, for disobeying his indentures or articles, was held bad for uncertainty. R. v, Everetty Cald. 26. And if a man be committed for non-payment of two sums, one of which is not due, the warrant of commitment is bad for the whole. Exp, Addist I B, fy C, 90. A commitment in execution^ must alledge the party to have been convicted of the offence, and it is bad if it merely state that he was charged with it. R, v, Rhode^ 4 T. R. 220. R. v. Cooper^ 6 T. R. 509. 12 East. 78. Note (a). It must be distinctly expressed in the warrant, whether the commitment be for a time certain, or only till the payment of a fine, for the defendant ought to know for what he is in custody, and how he may regain his liberty ; there- fore, if he be committed for a fine, it ought to be till he pay the fine ; if the intent be to punish him by fine and imprisonment, it ought to order imprisonment for such a time, and from thence till he pay his fine. By Stat. 17 G.2. c, 5, ^ 32. where any offender is committed by any justice, out of sessions, to the house of correction, by virtue of any law in force, which does not expressly limit the time and manner of punishment, the justice shall commit the offender, to be kept to hard labour until the next general or quarter sessions, or 116 eommiinunt. m I fa I < m III until discharged by due course of law : but two justices (of whom the committing justice must be one) may discharge the offender before the sessions if they see cause ; or the sessions may do so, or continue him in custody not exceeding three months : it must be under seal, and without this the commitment is unlawful : the gaoler is liable to false imprisonment ; and the wilful escape by the gaoler, or breach of prison by the felon, makes no felony. 1 H, H. 383. But this must not be intended of a commitment by the ses- sions, or other court of record, for then the record itself, or the memorial thereof, which may at any. time be entered of record, is a sufficient warrant, without any warrant under seal. 1 H, H, 584. It should also have set forth the place at which it is made. 2 Haw, 1 19. and it must have a certain date of the year and day. 2 H. U. 123. >A.'\I*< at the cil you the and deli mon ga( justice, he the Lord — called s( eammitmtnti 117 ihat It would apparently hazard his life to send him to the gaol, or there be evident danger of a rescue, or the like. 2 Haw, IIS^ By Stat. 3 H. 7. c. 3. the sheriff or gaoler shall certify the com- mitments to the next gaol delivery. ■iU p^ ^njx ,• Committnentf — koto it may be discharged, uu .»)?. It seems that a person legally committed for a crime certain, cannot (unless under the habeas corpus act) be lawfully discharged by any one but the king, till he be acquitted on his trial, or have an ignoramus found by the grand jury, or none to prosecute him on a proclamation for that purpose, by the justices of gaol delivery: but if a person be committed on a bare suspicion, without an indict- ment for a supposed crime, when afterwards it appears that there was none ; as for the murder of a person thought to be dead, who afterwards is found to be alive ; it hath been holden that he may be safely dismissed without any further proceeding. 2 Haw. 121. This position, however, will not always hold good ; for though a person supposed to be murdered, may isave recovered from the in- juries he received, yet the offender may still be indicted for an attempt to murder, or do the party some bodily harm, in which case it would be highly improper that any gaoler should take upon himself to discharge the prisoner, without an order from a magis- trate. A commitment after a conviction, for a time certain, is a com- mitment in execution, and does not admit of bail. Anon. 11. Mod, 45. But, on a commitment to the sessions, under the vagrant act, 17 G, 2. c. 5. ^ 32. two magistrates (of whom the committing magistrate was one) might discharge the prisoner before the ses- sions. R, V. Rhodes, 4. T. R. 220. When the commitment is till payment of a fine certain, it follows, of course, that the party is entitled to be set at liberty upon payment of it. Dalt, c* 170. <^ 12. Warrant of Commitment. — (For Felony.) Home District, > J. P. esquire, one of his Majesty's justices of the to wit. ) peace for the ^aid district, to the constable of - in the said district, and to the keeper of the (common gaol) at the city of Toronto, in the said district. These are to command you the said constable in his Majesty's name, forthwith to convey and deliver into the custody of the snid keeper, of the said (com- mon gaol) the body of A. B. charged this day before me the said justice, on the oath of C. D. of yeoman, and others, for that he the said A. B. (on the day of in the year of our Lord ■ at ■ " ' - in the said district, two pieces of gold coin called sovereigns; one woollen cloth coat, and one linea shirt, of .1,^5 118 eommflitieiit the monies, goods and chattels, of the said C. D. feloniously did steal, take and carry away) and you the said keeper are hereby re- quired to receive the said C. D. into your custody in the same (common gaol) and him there safely to keep, until he shall be thence delivered by due course of law. Herein fail you not. — Given under my hand and seal, at the city of Toronto, in the said district, the day of in the year of our Lord . J. P. Commitment upon a Conviction tohere the punishment is 6y imprison' mentt £/c. (Akcubold.) u n* * * » ^ *^^ ^^^ Constable of in the said district, Home i/isirict. j ^^^ ^^ ^^^ ^^^^^^ ^^ ^^^ ^^^j ^^^ ^^^^^ ^^ ^^^ rection) at in the said district. Whereas C. D. late of in the said district, labourer, was on this day duly convicte!^ before me J. P. esq. one of his Majesty's justices of the peace fo. the said district, for that he the said C. D. [stating the offence, as in the conviction] against the form of the statute in that case made and provided ; and I, the said J. P. tliereupon adjudged the said C. D. for his said offence, to be imprisoned in the house of correction, (or gaol) at in the said district, (and there kept to hard labour) for the space of .calendar months. These are therefore to command you, the said constable of aforesaid, to take the said C D. and him safely to convey to the house of correction (or gaol) at ———aforesaid, and there to deliver him to the said keeper thereof, together with this precept : and I do hereby com- mand you the said keeper of the said house of correction, (or gaol) to receive the said C. D. into the r>aid house of correction (or gaol) there to imprison him (and keep him to hard labour) for the space of calendar months ; and for your so doing this shall be your sufficient warrant. Given under my hand and seal &.c. if>i Commitment in default of immediate payment of a Penalty. (Unless the Act requires the immediate payment of a Penalty under the 27 G, 2. e. 20. it cannot be levied uotil four days after the con- viction.) Home District. J '^** (or gaol) at the Constable of— in the said district, and to the Keeper of the house or correction in the said district. Whereas C. D. late of in the said district, labourer, was on this day duly convicted before roe J. P. esq. one of his Majesty's justices &.c. for that he the said C. D. (&:c. stating the offence as in the conviction) against the form of the statute in that case made and provided ; and I the said J. P. thereupon adjudged the said C. D. for his said offence to (S:c. as in the conviction, to the words) calendar months, unless the said eottimon dcfiool0* 119 suini iliould b(9 sooner paid : and whereas ihe said C. D. being so convicted as aforesaid, and being now required to pay the said sums, hath not paid tlie same, or any part thereof, but herein hath made default; these are, therefore, lo command you the said constat ble of aforesaid, to take the said C. D. and him safely to convey to the house of correction, at —— aforesaid, and there to deliver him to the said keeper thereof, together with this precept ; and I do hereby command you the said keeper of the said house of correction (or gaol) to receive the said C. D. into the said house of correction, there to imprison him (and keep him to hard labour) [if authorised by the statute] for the space of calendar months, unless the s^id sums shall be sooner paid ; and for your so doing this shall be your sufficient warrant. Given under my hand &:c. CommUment in default of payment of a Penalty^ within a limited time. u n* * * * ^ ^^ ^^^ Constable of in the said district. Home LFisirici, ^ ^^^^ ^^ ^^^ Keeper of the house of correction, (or gaol) at — — in the said district. Whereas C. D. late of in the said district, labourer, was on the day of- ■ last past, duly convicted before me J. P. one of his Majesty's justices Uc. for that he the said C. D. (&£c. stating the offence as in the conviction) against the form of the statute in that case made and provided; and (I) the said J. P. there upon adjudged the said CD. for his caid offence, to pay (&£c. as in the conviction, to the end of the adjudication) and (L) the said J. P. then and there ordered that the said sums should be paid by the said C. D. on or before the — ' ■ day of then next : and whereas the said C. D. hath not on or before the said ■ ■ ■ day of- — - paid the said several sums or any part thereof, nor hatli he yet paid the said several sums, or any part thereof, but therein hath made default. These are there- fore to command you the said constable of aforesaid, to take the said C. D. and him safely to convey to the house of correction, (or gaol) at ■■ and there to deliver him to the said keeper thereof, together with this precept : and I do hereby command you the said keeper of the said house of correction, (or gaol) '> receive the said C. D. into the said house of correction, there to imprison him (and keep him to hard labour) for the space of calendar months, unless the said sums shall be sooner paid ; and for your so doing this shall be your sufficient warrant. Given under my hand and seal at in the said district, this day of in the yearof our Lord 18 — . COMMON SCHOOLS. ii «J"1{i» By Stat. 56 G. 3. c. 36. a sum of £6000 was granted for the es- tablishment of common schools. ^ 2. The inhabitants of any 120 eonvnum AcHMlfii. 1 IP i nH ■■4 "HP Hi. tiiivrii &C. fire authorised to meet on or before the Ist June in each year during this act, to make arrangements for common schools. ^ 3* And when a competent number of persons unite and build a school house, furnish 20 scholars and in port provide for the payment of a teacher, such persons giving eight days notice, may appoint three fit persons trustees to the said school, who shall have power fo appoint a teacher, and who must be a subject of his majesty. ^4. The trustees may remove such teacher for impropriety of con- duct, and appoint another; but no teacher to be removed unless the board of education sanction such removal. ^ 6. The trustees may make rules for the government of the schools, and report to the board every three months the books used 'in such schools. ^ 7. Subscribers for the building of schools liable to be sued for their subscriptions. <^ 8. The trustees shall report once a year the state of the schools to the board of education, in order that the board may report to the governo", and the same be laid before the legis- lature. ^ 9. The governor to appoint a board of education in each district, to consist of not more than five fit and discreet persons, three of whom shall be a quorum^ who shall have power to super- intend the schools, and report annually to the governor the state of such schools, to be laid before parliament. ^ 10. (since repealed) The monies granted to be apportioned to the teachers, and paid yearly or half yearly. ^11. Upon the teachers produ- cing a certificate of good conduct for six months with the number of scholars educated in said school, being not less than 20, the treasurer is authorised to pay such teacher h«8 proportion. ^ 13. The board of education to proportion the motiey for the schools, and to send the treasurer a copy thereof; no allowance iViatever shall be paid to any teacher, unless the trustees report to the board of education. <^ 14. When two adjoining districts find it convenient to compose such school, and a portion of the scholars reside in each district, the trustees may make the necessary returns and re- ceive an equal proportion of the monies so granted for the support of such schools from earli of the respective districts, in proportion to the number of scholars sent to school from each district. ^ 16. The act to continue in force 4 years. By Stat. 60 G. 3. c. 7. ^ 1. The above act with some excep- tions is continued. <^ 2. JC2,500 to be paid annually for the com- mon schools, viz: £250 for each district. "§ 3. To be equally divided among the teachers, and paid half yearly or yearly as the trustees may direct, not exceeding j£l2 10s. to each teacher. '^ 4. The board of education in each district authorised to appoint a clerk, at a salary not exceeding £5 per annum. By stat. 4 G. 4. €. 8. a further sum of £150 per annum is granted for the support of Sunday schools, to be at the disposal of the general board of IS, education for this province, and diitribated to the leverat ditlrict boards. ^ 5. The provisions of the above act and the 5G G. 3. c, 36. to extend to the Indians. ^ 6. The teacher of a common school shall be examined by the board of education, or obtain a cer- tificate from at least one member of the board, certifying his abi- lity and fitness to teach. By Stat. 3 fV» 4. c. 56. the further sums of ^££,650. and £5,650 were granted in aid of public schoools for the years 1833( 1834. , ^nmt'ia'r :\ COMMON SCOLD. ■ ••■♦»^"-' •-"' * A COMMON scold communis rixatrix, (for our law latin, says Blackstone, confines it to the feminine gender) is a troublesome angry woman, who, by her brawling and wrangling amongst her neighbours, breaks the public peace; increases discord; and be- comes a public nuisance to the neighbourhood : she is, therefore, liable to be indicted as a nuisance, and, on conviction, to undergo the punishment of the tre-bucket, or ducking*stool. 4 Bl. Com, mm^ m ^■ COMPOUNmNG FELONY. -t^"^ ^ Is A MISDEMEANOR at common law called THEFTBOTE-*-wbich is, where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. This is frequently called compounding of felomfy and formerly, was held to make a man an accessory, but is now punished only with fine and imprisonment. Bl, Com, p, 123, 16. Ed, I Haw, c. 59. ^ 5. By statute 25 G. 2. c, 36. to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser, and the printer, to a forfeiture of £50 each. , ,^ , . .. , , ,, >-, ^..i..^**^, , ' ' Indictment for compounding a Felony. — (Archbold.) Home District, > Thejurors for our lord the King, upon their oath to wit. 5 present, that heretofore, to wit, on the .■ day of—— in the — • year of the reign of our sovereign lord William the fourth, at the township of in the county of in the home district, one A. the wife of J. N. feloniously itole, took, and carried away, one silver spoon, of the value of twenty shillings, of the goods and chattels of one J. S. against the peace of our lord the King, his crown and dignity. And that the said ..-J. S. late of the township aforesaid, in the county and district in eommmnUCna olfie r omnttn. i 1 •foreiaid, labourer, well knowing the lald felony to have been by the said A. to ai aforeiaid done and committed ; but contriving and intending unlawfully and unjustly to preveiit the doe courie of law and justice in that behalf, and to cause and procure the said A. for the felony aforesaid, to escape with impunity after- wards, to wit, on the day and year aforesaid, at the township aforesaid, in the county and district aforesaid, unlawfully, and for wicked gain's sake, did compound the said felony with the said J. N. the husband of the said A., and then and there did exact, take, receive and have of the said J. N. the sum of twenty- six shillings, for, and as a reward for compounding the said felony, and desisting from all further prosecution against the said A. for the felony aforesaid ; and that the said J. S. on the day and year aforesaid, at the township aforesaid, in the county and district aforesaid, did thereupon desist, and from that time hitber'o hath desisted, from all further prosecution rf the said A. for the felony aforesaid, to the great hindrance of justice, in contempt of our lord the King, and his laws, and against the peace of our lord the King, his crown and dignity. COMPOUNDING OTHER OFFENCES. The compounding of informatiotu on penal statutes^ is a misde- meanor against public justice, by contributing to make the laws odious to the people. 4 BU Com* 136. Therefore, in order to discourage malicious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it is enacted by the statute 18 Eliz, c. 5. % 4* that if any informer, by colour or pre^ tence of process, or without process, upon colour or pretence of any manner of offence against any penal law, make any compo- sition, or take any money, reward, or promise of reward, without the order or consent of the court, he shall stand two hours in the pillory ; be for ever disabled to sue on any popular or penal statute, and shall forfeit £>\Q, This severe statute extends even to penal actions, where the whole penalty is given to the probecu- tor. 4 BL Com, 136. note (a.) But it does not apply to pen- alties which are oniy recoverable by information befc re justices ; and an indictment for making a composition in such :i rase, was holden bad, in arrest of judgment. Hex, v. Crisp and others^ 1 B. if A, 282. It has been decided, that p. party is liable to the punishment prescribed by the 18 Eliz, c, 5, for taking the penalty imposed by a penal statute, though there was no action or proceeding for the penalty. Rex, v, Gotley, East, T. 1805. Ruu, 8f By, 84. Cottf(0fllOII» Ut. 123 .t 'OV; CONFESSION. -Mi H?*J ,<>«IMl»i«i?l^ If a party, on examination before a justice, confesi a crime, it may be given in evidence against him, but not against others.—- 2 flaw. c. 46. ^ 3. And it is sufficient, though there is no other proof of his having committed the offence, or of the offence having ^een committed, if such confession was in consequence of a charge against him. JRex. o, EldridgCt Ruts, and Ry, c. c. R, 440. But it must be voluntary, and not have been obtained by any promise, favour, menace or terror. The admissibility of a con- fession must depend upon circumstances. PhiL Ev. 104. And the identity of the examination must be proved before it can be read in evidence. Siun. 263. It must be in writing, and not orally ; and must be taken altogether, and not by parcels. 2 Haw. c, 46. ^ 5. Leach^ 286. And such examination should not be on oath. Bull N. P. 242. Persons confessing themselves, and on that confession adjudged guilty of felony, cannot be ad- mitted to bail, as the only reason for admitting to bail in felony, is where the crime is doubtful. 2 llaw, c. 15. <^ 40. The con- fession must be in the very words used by the party, and not in the language of another, from recollection. Rex. v. Sexton^ 1 Burn^ 692. Prisoner may be convicted on the uncorroborated evidence of his own confession. Leach, 287. ^ji See post "Examination." :jiiij--. it. ..ftrv./, *\. CONSPIRACY. U* vi- :.in'!'ih^ Is a combination of two or more persons to injure a third person. I Haw. c. 72. ^ 2. or to injure or prejudice ih-* community. 8 Mod. 11. 320. 3 M.fyS. 67. Thus, where the defendants were charged with conspiracy in caus^^g a man to be convicted and ex- ecuted for a robbery, which thejy knew he was innocent of, with intent to obtain the reward then given by act of parliament. R. V. Macdaniel, 1 Leacht 45. Fost. 130. So, where the defendants were indicted for conspiring to accuse another of taking hair out of a ba^, without alleginij; that it was done feloniously. Lord Mansfield held, that the gist of the offence was, the unlawfully conspiring to do an injury to another by a false charge ; and that whether the conspiracy be to charge a man with criminal acts, or such only as affect bis reputation, it is sufficient. JR. v. Rispalf I Bl, Rep.S^S. 3 Burr. 1320. So, where the prosecution is for the sole purpose of extorting money. jR. v. Hollingburyt 4 B, if C. 329. So also, a conspiracy to prevent a prosecution for a fe- lony, is as much an offence as a conspiracy to institute a false prosecution. 14 Vet. 65. And, a conspiracy of two magistrates i\ m ii 124 .1 €ovmitutvi. to prevent the cc urse of justice, on an indictment for not repairing a highteay, by signing a false certificate of the highway being in repair, in order to prevent t'le court from imposing a fine on the defendants, has been also held to be an indictable ofience. R. v. Mawley^ 6 T. R> 619. Among various other subjects of con- spiracy may be mentioned, a conspiracy to obtain, by procuring in return, the appointment to a public office. R. v. Pollman, 2 Camp. 229. Of several defendants to injure a man in his trade. R, v, Eccles, 1 Leach, 274. To sell unwholesome wine or provisions. R. V. Macarty, and Fordenbourgh, 2 Ld, R, 1179. Journeymen combining not to work unless for certain wages. R. v. Journey- men Tailors of Cambridge, 8. Mod. 10. To suppress a will. Breerton's case, Noy, 103. ; or to cause an illiterate person to execute a deed to his prejudice, by reading it over falsely to him. R. V. Skirrett, I Sid, 312. 431. If all the defendants who are indicted for a conspiracy be ac- quitted but one, the acquittal of the rest is the acquittal of that one also, as there mustl)e two concerned in the conspiracy. Cro, Cir. Com. 159. 2 Ld. Ray, 1167. 2 Burr. 993. But an indictment against one person and others unknown, is maintainable. 3 Chit, c. 4. 1141. The ofience of conspiracy may be tried by justices of the peace in their quarter sessions. R. v, Rispal, 3 Burr. 1320. ; and the act of one party, in pursuance of the common object, is evidence in law, against all the parties. Ph. on Ev. 76. If one only, of two persons indicted, appear, he may be tried in the absence of the other defendant. R.v. Kinnerley, 1 tSi^r. 193. ^ The punishment for a conspiracy is by pillory, fine and impri- sonment, and sureties for!the good behaviour. ^Burr. 1027. iS^e furthermost ** Workmen.''* Indictment for Conspiracy, (Chitty.) ■+ii Home District, > The jurors for our lord the King, upon their to wit. > oath, present that A. B. late of in the home district, yeoman, C. D. late of in the said district, ycO' man, and E. F. late of in the same district, labourer, being persons of evil minds and dispositions, on the day of' in the year of the reign of our sovereign lord William the fourth, with force and arms, at the township aforesaid, in the county and district aforesaid, unlawfully and wickedly (or if the conspiracy be malicious, say " falsely and maliciously") did con- spire, combine, confederate and agree together, to (here, state the object of the conspiracy) and the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. kc. in pur&uance eon0tai^lr. 125 of, and according to the said conspiracy, combination, confederacy and agreement, between them the said A* B. &z;c. as aforesaid, had did on &c. at &;c. (the place where the overt act took place) here set out the overt acts of conspiracy) to the great damage of &lc. (the party immediately injured) to the evil example of all others* and against the peace of our said lord the king, his crown and dignity, (add a second county stopping at the statement of the con- spiracy t omitting the overt aciSf and concluding as above.) ■:fi'\,- CONSTABLE. Who are liable to serve the OJpce. V5 No person can be appointed a constable who is not an inhabitant of the place where he is to serve. 1 J?urae, 703. R. v. Adbardt 4 B.&fC. 772. And if a very poor and ignorant person be chosen, he may by law be discharged, and an abler person appointed in his room. Ibid, Dalt. c. 28. Barristers at law, attornies, and other officers of the court of king^s bench, are exempted from serving the office. 2 Keb. 508. Cro, Car. 389 2 Haw. c. 10. ^ 39. And by ihe ancient custom of the realm, surgeons have been allowed the like privilege. An officer in the King's service^ or d^ gentleman of quality ^ may perhaps be relieved from serving such office, upon application to the court of king's bench, provided there are other persons suf- ficient to execute the office. 2 Haw. c. \0, % AX. It has been liolden, that the King may exempt any person, if the exemption be not extended so far as to prevent the existence of the office in any particular place. Rex. v. Clarke. 1 T. R, 682. By the 10 4f H W. 3. c. 23. <^ 2. 3. the prosecutor of a felon to conviction is discharged from liability to serve as consta« ble. A foreigner^ though naturalized, is not liable to serve.— Rex. v. De Mierre^ Burr. 278. No man that keeps a public house ought to be made a constable, if there are other persons in the parish proper to serve. Per Holt, C. J. 6 Mod, 42. ir How appointed^ and how punishable for refusal to serve. -iA«« By the 33 G. 3. c. 2. <^ 10. it is enacted,;;that it shall be lawful for justices of the peace, within the respective limits of their commissions, at their general quarter sessions in April, or the greater part of them, to nominate and appoint, yearly, a sufficient, discreet and proper person, to serve the office of high constable, in each and every district ; and also to nominate and appoint such a sufficient number of persons as in their discretion will be neces- sary, to serve the office of constable, in each and every parish, 126 eoifKiniile. m town&hip, refiuted township or place ; and the said constable and constables, before they enter into their office, shall severally take the following oath, to be administered by any justice of the peace : You shall and well and truly serve our sovereign lord the King, in the office of — — for the — — of , for the year ensuing, according to the best of your skill and knowledge. — So help you God. And after ^uch service, such persons shall be exempt from any of the offices mentioned in this act, for three years. By 13 ^ 14 Car, 2. c. 12. ^15, if a constable die, or go out of the parish, any two justices may make and swear a new one, till the next quarter sessions, which shall either approve or appoint another. If a constable, being duly appointed, refuse to take the oath, he may be indicted at the assizes or sessions, when, if found guilty, he may be fined, and in default of payment, he may be committed. Rex. v. Lane, 2 Str, 920. But if he has once been allowed to appoint a deputyi who is approved of, he is altogether discharged. 3 Es^. Rep. But such deputy must be duly sworn. TFood'a ins/. 61. c. 7. niin-t ,;>iK». .):■.) ,)S -»)«.■ ■t; i\: , ' "'A '.'*'/ r* j^t*. An action against a constable for any act done in the execution of his office, must be brought in the district where the offence was committed, to which action he may plead the general issue, and give the special matter in evidence ; and if he recover he shall have double costs. 21 Jac, 1, c. 12. This extends also to his deputy. Cromp. J. P. 201. And every ma:i aiding a constable in the ex- ecution of his office, has by law, the same protection as the consta- ble. 2 Hahy P. C, 97. A justice's warrant is a good justification of a constable, in any matter within the jurisdiction ofsuch justice, but not otherwise. Sir. 711. By Stat. 24 G. 2. c. 44. the constable is not answerable for the execution of a warrant, in case the magistrate who made it has no jurisdiction, if he complies with the requisitions of that statute : and by ^ 6. no action shall be brought against him or any person acting by his order and in his aid, for any thing done in obedi- ence to a warrant under the hand or seal of a justice, until demand in writing hath been made or left at his usual place of abode, of the perusal and copy of the warrant, and the same hath been re- fused or neglected for six days after such demand ; and if, after compliance therewith, any action shall be brought, without making the justice a defendant, the jury shall, on production of the war- rant, give their verdict for the defendant, notwithstanding any de- fect of jurisdiction in the justice. If the action be brought jointly against the justice and constable, the jury shall, on proof of the ivarrant, find for the constable, notwithstanding such defect of ju- r}sdicti'jn< By ^ 8. no action shall be brought against any con- stable acting in the execuilon of his office, unless commenced within six calendar months after the act committed. If a constable acting under a distress warrant, seize the goods of A. mistaking them for the goods of B. he is entitled to the pro- '*<;•.. ,'i*.' eons^^tiih I2d tection of the statute. Parton v. JViUiams, 3 B. A. 330. A constable who arrests a person given him in charge, is not liable to an action of false imprisonment, though the charge be ill found- ed, unless he make himself a party in oppressing the person so arrested, knowing the charge to be false. White v, Taylor^ AEsp,*' 80. ' ■' "' ■ *' Of his Punishment. ■ '■ ^^^ n-M V He may be flned or imprisoned, or both, for refusing to serve the office when appointed. Arch. C. P. 384. Be is indictable for neglecting his duty, either at common law or by statute. 1 Salk. 381. And may be fined for not endeavouring to pacify nn affray in his presence. Cromp. J. P. 130. If he will not return his war- rant, or what he has done under it (for he ought to keep the war- rant for his own justification) the sessions may fine him. 6 Modm 83. He is guilty of felony if he lets a felon out of the stocks. 1 Halcy P. C 596. He may be removed for just cause by the au- thority which appointed him. JBu/«^ 174. ■. J-?-, vi^pvij v".' t, Of his Expenses. By 46 G. 3 c. 5. justices in sessions may award such compensa- tion as they may think proper to constables, for serving notices of the appointment of town officers, under that act. With the above exception, the provincial statutes do not appear to have made any express provision for the payment of a constable*s general expen* ses, but in practice it has been usual for the constable to present his account to the justices in sessions, who, after due examination and allowance, make an order upon the district treasurer for pvy^'- ment. , - * '* Form of appointment of a Deputy Constable. '■ I, C. D. Constable of in the — — district, do hereby make, substitute and appoint G. H. of yeoman, my true and lawful deputy, in the office of constable, so long as I shall hold the same, (or during the continuance of my will and pleasure). Witness my hand, the — — day of in the year of our Lord 18—. '' Oath to be adminisfcred by Constable to Appraisers^ on Goods beiv^ Distrained for Rent. m You shall swear that you will faithfully appraise and value the goods now taken in distress, and mentioned in the inventory to you shewn, as between buyer and seller, according to the best pf your skill and knowledge. So help you God. *.**' ISO a^onnM^lt. Mftmorandum to bt endoned by th$ Conttabh on tht inventory. Memorandum, that on the — — day of—-— in the year of our Lord 18—, A. B. of and C. D. of two sworn apprais- ers, were sworn upon the holy evangelists, by me E. F. constable, well and truly to appraise the goods and chattels mentioned in this inventory, according to the best of their skill and knowledge ; as witness my hand. £. F* Constable. Present at the time of swearing the said A. B. and C. D. as above, and witness thereto. J. K. L.M. Proclamation hy Conttabh for Rioters to disperse. Our sovereign lord the King charges and commands all persons here assembled, immediately to disperse themselves, and peaceably depart to their several habitations, on pain of imprisonment. Summons by a Constable in pursuance of a Justice*s precept. (Toone.) {Arehbold^ in his work on Convictions^ recommends the service of a copy of the Summons on the Defendant, p. 97. But as both forms are in practice, either will do.) To A. B. of. Home District, ) In pursuance of a precept to me directed, by J. to wit. > C. esq. one of his Majesty^s justices of the peace in and for the said home district, I do hereby summon and warn you personally to be and appear before the said justice, (or if general) or such other of his Majesty's justices of the peace for the said district, as shall be present at in the township of in the said district, on — — the day of at the hour of — in the noon of the same day, then and there to answer the complaint and information of [state th', offence as in the jus- fuse's precept."] Herein fail not at your p<;ril. Given under my hand and seal the day of— in the year of our Lord 18— Constable's Return on the back if the Precept, The within __. was duly summoned to appear and answer as he is within required, on the — — . day of 18— D. £. Constable. Warrant for an Assault on a Constable, To A. B. constable of the the township of in the Home dis- trict, and to all others his Majesty's constables and peace officers within the said district. €on0tai^lr. 131 Home DUtrict, ) Whereas C. D. hath this day made complaint To wit. > on oalh, before me C J. esquire, one of his Ma- jesty's justices of the peace in and for the said district, that £. F. of in the said district, labourer, on the — — ~i day of last, at — .^— aforesaid, in the district aforesaid, in and upon him the said C. D. did make a violent ai.sault, and then and there did beat, wound and ill treat, him the said C. O. then being one of the constables of the said township, and then and there also being ia the due execution of his office as constable aforesaid ; these are therefore to command you, the said constable, in his Majesty's name, forthwith to apprehend the said £. F. and brijg him before me at - to answer the said complaint, and to ba further dealt with according to law. Given, k,c» J. C Commitment of a Constable for a wilful escape. To the keeper of the gaol at Toronto, in the home district: Home District, > Receive into your custody in the said gaol and to wit. 5 there safely keep until the next general quarter sessions of the peace, to be holden in and for the said district, or '.intil thence otherwise delivered by due course of law, the body of A. F. one of the constables of ——in the said district, herewith sent you, and charged before me J. C. esquire, one of his Majes* tyV justices of the peace in and for the said district, on the oath of C. D. with having this day wilfully and designedly suffered and permitted one G. H. to escape out of his custody, and go at large at aforesaid, in the district aforesaid, the said G. H. having been committed to the custody of him the said A. B. as such constable as aforesaid, by virtue of a warrant under my hand and seal, for felony, to be conveyed by him to the gaol at Toronto aforesaid. Given under my hand and seal, &c. Indictment for refusing to serve the office of High Constable. (Arciibold.) Home District, ) The jurors for our lord the King, upon their to wit: \ oath present, that at the general quarter ses^ -sions of the peace, holden at the city of Toronto, in and for the home district, on the day of .— .. in the fourth year of the reign of our sovereign lord William the fourth, to wit, at the city aforesaid, in the district aforesaid, before A. B. and CD. esquires, and others their associates, justices of our said lord the Kingi assigned to keep the peace of our said lord the King in the said district ; and also to hear and determine divers felonies, tres- passes and other misdemeanors, in the said district committed, one J. S. late of the township of — — in the county of in the said districti yeoman, then, and long before, being an inha« l\ itjf 152 Confiitftutlon^l ^ctfif. bitnnt, and residing in the township last aforesaid, in the county and district aforesaid, and a fit and able person to execute the of- fice of high constable within the said district, ot the said sessions, by the justices aforesaid in due manner, was then and there elected to be high constable of the said home district, in the room and stead of one J. N. ; whereof the said J. S. afterwards to wit, on the day and year aforesaid, at the township aforesaid, in the county and district aforesaid, had notice : nevertiieless the said J. S. not regarding his duty in that behalf, but contriving and intending the due execution of justice to hinder and prevent, afterwards to to wit, on the day and year aforesaid, at the township aforesaid, hi the county and district aforesaid, unlawfully, wilfully, obstinate- ly and contemptuously, did refuse, and from thence continually until the day of the taking of this inquisition, unlawfully, wilfully, obsti- nately and contemptuously, hath refused, and still dotb refuse, to take upon himself and execute the said office of high constable within and for the district aforesaid, to wit, at the township aforesaid, in the county and district aforesaid, contrary to his duty in that behalf; ia manifest contempt and delay of justice ; against the form of the statute in such case made and provided ; and against the peace of our lord the King, his crown and dignity. - . .•; :.._," . ^"' :.j ;, .. . •":, M'''-> 134 eon^iUtiUotiaii sneti^ SI"-'!! ' '* I': ■'v, ^ 3. That for the purpose of constituting sucli legitlative council as aforesaid, it should be lawful for his Majesty, by an instrument under his sign manual, to authorise and direct the lieutenant governor, within the time thereinafter mentioned, in his Majesty's name, and by an instrument under the great seal of such province, to summon to the said legislative council, to be established in each province, a sufficient number of discreet and proper persons, being not fewer than seven to the legislative council for the province of Upper Canada, and not fewer than fifteen for the province of Lower Canada ; and that it shall be lawful for his Majesty, his heirs or successors, from time to time, by an instrument under his or their sign manual, to authorise and direct the lieutenant governor to summon to the legislative council of such province, in like manner, such other person or persons as his Majesty, bis heirs or successors, rhall think fit. <^ 6. No persoi- > nder twenty- one, or who shall not be a natural born subject ; v,. a subject to his Majesty naturalized by act of the British parliament ; or a subject of his Majesty by the conquest and cession of Canada, shall be summoned to such legislative council. ^ 5. Each mem- ber of such council shall hold his seat therein for life, subject to the provision thereinafter contained for vacating the same. ^ 6. Whenever his Majesty, his heirs or successors, shall think proper to confer upon any subject of the crown of Great Britain, by letters patent under the great seal of the province, any hereditary title of honor, rank or dignity, of such province, descendible according to any course of descent limited in such letters patent, it shall be lawful for his Majesty, his heirs or successors, to annex thereto, if he or they shall think fit, an hereditary right of being summoned to the legislative council, descendible according to the course of descent so limited with respect to such title, rank or dignity. <^ 7. Such hereditary right to be forfeited by four years 7 ijuiliifi A Contempt is, in legal meaning, either an open resistance or insult to the power of a court of record, committed by any per- son in the face of the court ; or a disobedience to its rules, orders or process, by a party who is not present in court. 4 Bl. Com, 283. So, where abusive words are spoken to a justice of the peace, in the execution of his office whilst sitting as a magis- trate, he may commit fjr the contempt; but if the words are spoken of him behind his back, the party can then only be indicted R, v. ReveL 1 Str. 420. A commitment by the sessions, or other coiir.t of record, need not be under seal, as the memorial thereof, which may at any time be entered of record, is sufficient without any warrant. 1 Hale. 583, 584. But a justice cannot commit for a 138 eoniifclfan* [ii % If;!? m '^ contempt, except by warrant in writing. Mayhtiot, LocJce*-^ 7 Taunton 63. And, unless the words be spolien under circum- stances which render it probable they may prevent the due adminis- tration of justice, it will be safer for the magistrate to abstain from summary punishment and proceed by indictment, which will cer- tainly lie for words addressed to him while in the discharge of his duty. Dickenson Q. 5. 43. If however the party be imprisoned instanter, the commitment must be for a time certain ; and a com- mitment, until the defendant is discharged by due course of laWf is bad. Rex. v. James. 5 B.^A. 894. It has been held, that a com- mitment which charged the party, generally, with having insulted justices of the peace in the execution of their office, without speci- fying what he said or did, is sufficient. 2 Barnard^ 155. It is, however, in genera! advisable to describe the offence concisely, but in substance as in an indictment. Chitty, C. L.p 112. Commitment for Contempt, . To the keeper of Home District, > Receive into your custody the body of C. D. To wit. i herewith sent you by me A. W. esquire, one of his Majesty^s justices of the peace in and for the said district, and charged by me, the said justice, upon the view, of me the said jus- tice, with contempt and indecent behaviour in my presence, by in- sulting and obstructing me, the said justice, in the due execution of my office, as such justice as aforesaid, (and for sayings fyc. in the presence and hearing of me, the said justice , here set forth thepar- iiculars, if the justice shall think it necessary,) and him the said C. D. detain in your custody, in the gaol aforesaid, for the space of—^ hours, to be computed from the hour of o'clock in the forenoon of this present day of instant, for his contempt aforesaid, (or until he find two sufficient sureties for his appearance at the next general quarter sessions of the peace for the said home district, to answer to the charge aforesaid, or be otherwise discharged by due course of law.) Given under my hand and seal, at Toronto, in the said district, the — —_ day of ._. CONVICTION. A CONVICTION ought to be in words and figures at length. It is not usual or necessary for thelconvicting justices to draw up a formal conviction, in the fir^t instance, in every cs^e in which a penalty is inflicted, but to make minutes of the proceedings, (with- out attending to the precise form) at the time of-pronouncing the judgment, from which they ma;jr afterwards, if occasion require, make out a regular conviction ; nor is it necessary, that it should eoni)Ution* 1S9 be drawn up in due form, before the penalty is levied. Paley on Con, 316. Even after an action brougbtt it seems that justices may draw up a conviction, and give it in evidence, by way of de- fence, provided the date is warranted in fact by the time when the conviction actually took place. Massey v, Johnson^ 12 East, 82. When the statute prescribes a particular form of conviction, it niust be exactly followed ; but when it is merely directory, ** that the justice be authorised or empowered to draw up the conviction in the form or to the effect following," then the justice is not bound to any precise form of words, although it will be prudent for hici to adhere to the form given, as nearly as possible, and pursue the words of the statute. Pal. on Con. By statute 2 W. 4. c, 4. it is enacted, vhat in all cases wherein a conviction shall take place, and no particular form for the record thereof hath been directed, the justice or justices duly authorised to proceed summarily therein, and before whom the offender or ofTenders shall have been convicted, shall and may cause the record of such conviction to be drawn up in the manner and form follow- ing, or in any words to the same efifect, mutath mutandiSf that is to say, — Form of Conviction, day of — in the dis- - . ■ " District, ) Be it remembered, that on the — to wit: i in the year of our Lord ——at trict of A. B. of in the district of—- — labourer, (or as the case may be) personally came before me, (or before us) C. D. one (or more, as the case may be,) of his Majesty's justices of the peace for the said district of . and informed me, (or us, as the case may be) that E. F. of — — in the district of — — labourer, (or as the case may be) on the day of ■ in the year of our Lord — — at in the said district of did [here set forth the fact for which the information is laid] contrary to the form of the statute in such case made and provided, w' -^reupoa the said E. F. after being duly summoned to answer the said charge, appeared before me, (or us, as the case may be) on the day of in the year of our Lord at — — in the said district of and having heard the charge contained in the said information, declared that he was not guilty of the said offence, (or as the case may happen to be) did not appear before me, (or us) pursuant to the said summons, or did neglect and refuse to make any defence against the said charge, whereupon I, or we, (as the case may be) or nevertheless 1 or we, (as the case may be) the said justice or justices, did proceed to examine into the truth of the charge contained in the said information, and on the ■ ■ ■ ■ ■ r^ay of ■' aforesaid, at ^ in the district of-«-^ aforesaid, ! 140 eimiifcifon* one credible witness, (o wit, A. W. of •— — in the district of labourer, (or as the case may be) upon his oath deposeth and saith, [if £. F. be present, say in the presence of the said £. F.] that on ihe — — day of in the year of our Lord ' the said £. F. at in the said district of [here state the evidence, and as nearly as possible in the words used by the witness ; and if more than one witness be examined, state the evidence given by each ; or if the defendant confess, then, instead of stating the evidence isay, and the said £. F. acknowledged and voluntarily confessed the same to be true,] therefore it manifestly appearing to me, (or us, as (he case may be) that he the said £. F. ii^ guilty of the of- fence charged upon him in the said information, I, or we, (as the case may be) do hereby convict him of the offence aforesaid, and do declare and adjudge, that he the said £. F. hath forfeited the sum of of lawful money of this province, for the offence afore- said, to be distributed or paid, (as the case may be) according to the form of the statute in that case made and provided. Given under my hand, or our hands, (as the case may be) and seal, (or seals) the day of in the year of our Lord . ,.^t]. Sec. 2. In all cases where two or more justices are authorised to hear and determine any complaint, one justice shall be compe- tent to receive the original information or complaint, and issue the summons or warrant, requiring the pcrty to appear before two justices, as the case may require, and after adjudication thereon, by two or more such justices, all subsequent proceedings to enforce obedience thereto, whether respecting the fine, imprisonment, costs or other matter, may be enforced by either of the said justices, or by any other justice of the district, having before him a record of such conviction, certified by the justice or justices who adjudged the case. ^ 3. No conviction shall be set aside in consequence of any defect of form. <§ 4. And in cases where convictions shall be quashed, no more damages than one shilling, and the amount levi- ed by virtue thereof, shall be recoverable against any justice, unless the act complained of shall be charged in the declaration to have been done maliciously. <^ 5. And no damages or costs, when the plaintiff shall be proved to have been guilty. A defendant is entitled to a copy of the conviction, and the jus- tice is bound to give it to him, if requested. R. v. Midlum, Burr. 1720. ; but the justice is not thereby precluded from drawing up and returning a conviction in a more formal shape ; for this last is to be taken as the only authentic record of the proceedings. R, v. Barber, I East. 82. R. v. Allan, 15 East. 332. A justice should, in all cases, return a conviction to the sessions, whether the party appeal or not, or whether an appeal is or is not ^ovmtVp $ce 141 given, in order that the crown may not be deprived of its share of forfeitures. JR. v, Eatorit 2 T. R, 285. * f "* ,il.: CORONER. Th£ lieutenant governor has the appointment of all coroners in this province, who are appointed by commission under the seal of the province, as coroners of the district. The office and power of a coroner are, like those of a sheriff*, either judicial or ministerial ; but principally judicial. This is in great measure ascertained by statute 4 Edw. 1. de officio coronatoris ; and consists, first, in inquiring, when any person \^ slain, or dies suddenly, or in prison, concerning the manner of h'o death ; and this must be super visum corporis; for if the body be not found, the coroner cannot sit. Bt, Com, b, 4. p. 348. The ministerial ofiice of the coroner is only as the sheriff's sub- stitute ; for when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then bo awarded to the coroner, instead of the sheriff, for execution of the King's writ. lb, 349. — See further on this subject^ title JuRY. By Stat. 3 H,T. c. I, the coroner is entitled to a fee of 133. 4d. upon every inquisit; - ^^^ken in murder^ out of the goods and chattels of the sla} - :id by statute 25 Gr. 2. c. 29. for every inquisition (not take .^.^n view of a body dying in gaol) 20s. ; and also 9d. for every mile he shall be compelled to travel to laka such inquisition ; au 1 for every inquisition taken on a body dying in prison, so much — not exceeding 20s. — as the justices in ses- sions shall allow. The above fees to be paid out of the county rates — (in England) ; and in this province, are usually ordered by the sessions, to be paid out of the district funds. U ■Aa:} I v* -■■■ COSTS. .«^-. Ill, By statute 18 G. 3. c. 19. Where any complaint shall be made before any justices, and any warrant shall issue, it shall be lawful for any justice who shall have heard and determined the complaint, to award costs to be paid by either of the parties, as to him shall seem fit, to the party injured ; and in case any person ordered by the justice to pay such money, shall not forthwith pay down or give security for the same to the satisfaction of the justice, it shall be lawful for the said justice, by warrant, to levy the said sum by distress and sale of goods ; and where goods cannot be found, to commit such person to the house of correction, to be kept to hard labour, for not exceeding one month, nor less than ten days, or I* : m ^ 143 €mtn. until such money, together with the expenses attending the com* mitment be first paid. ^ 1. Upon the conviction of any person upon any penal statute, where the penalty shall amount to or exceed five pounds, the costs shall be deducted by the justice, according to his discretion, out of the penalty, so that the deduction shall not exceed one fifth of the penalty: ; and the remainder of the penalty shall be paid to the persop erititled to the whole in case this act had not been made* ^ 2. The forms to this act annexed shall be used. <^ 3. JTorm of awarding Costs. > I ■ one [or, wc — — being two] of his ) Majesty's justices of the peace in and County or Borough, hv„ to wit. for the • aforesaid, in pursuance of an act, made in the eigh- teenth ;?ear of his Majesty King George the third, " entituled, an act for the payment of costs to parties, on complaints determined before justices of the peace out of sessions ; for the payment of the charges of constables in certain cases ; and for the more effectual payment of charges to witnesses and prosecutors of any larceny, or other felony ; on the complaint of [here state the nam;?s of the panies, and the ofience generally, and the datej, against ■ for — — which said complaint was heard and determined by on 'he — — day of do award the following costs to be paid by viz. [here stale the costs.] Given under . hand and seal [or hands and seals] this day of in the year of our Lord »t Form of Warrant of Distress and Sale. nt. ( and to all other his Majesty's — in ■ aforesaid. To the constable of _ to wit. V constables in and for Whereas . . .- of his Majesty's justices of the peace in and for the aforesaid, in pursuance of an act, made in the eighteenth year of his Majesty King George the third, "entituled, an act for the payment of costs to parties, on complaints determined before justices of the peace out of sessions ; for the payment of th? charges of constables in certain cases ; and for the more effectual payment of charges to witnesses and prosecutors of any larceny, Qr other felony; have awarded, on the — -». of now last past, on the complaint of against ...._ for. the follow- ing costs to be paid by ..^-. viz. [here slate the sum] : and whereas the said being ordered by the said justice [or justices] to pay such sum [or sums] as aforesaid, hath not paid down or given ■ecurity for the same, to the satisfaction of the said justice [or justices]: these are therefore to command you, and each and every of you, to levy the said gum of. the goods and chattels of the said US -~ by distress and sale of and ■ do hereby or- der and direct the goods and chattels so to be distrained to be sold and disposed of within — ~. days, unless the said sum of - for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid ; and you are hereby also commanded to certify unto — — ~ what you shall have done by virtue of this . warrant. Given un- der .^— i hand and seal [or hands and seals] at ■ .. ■ the . day of in the year of our Lord --^ >} Constable's Return thereon^ for want of Distress. To Wit 1 ^' > constable of——, do hereby certify to ■ S justice (or /lustices) of the peace of that I have made diligent search for. but d(» not know, nor can find any goods and chattels of ■, by distress and sale whereof I may levy the sum ■ pursuant to — — warrant for that purpose^ dated the — — day of — . Giv»ru under my hand, this ■ day of , in Commitment thereupon to the House of Correction, UJ i'. To Wit. ) To the constable of ■ ■ ■ — , and also to the keeper of i the house of correction at . ,' i Uttiil SO Whereas in pursuance of an act made in the eighteenth year of his Majesty King Georgt the third, entituied, " an act for the payment of costs to parties, on complaints determined before jus- tices of the peace out of sessions ; for the payment of the charges of constables in certain cases; and for the more effectual payment of charges to witnesses and prosecutors of any larceny, or other felony," — .— of his Majesty's justices of the peace, in and for the S3id .^— did issue . warrant of distress and sale, di- rected to of I constable of the said of , ordering the said constable to levy the said sum of of the goods and chattels of the said — —— in manner and form as there- in is mentioned : and whereas it appears to of constable of dated the by the retnrn day of that he hath made diligent search, but doth not know of, nor can find any goods and chattels of the said by distress and sale whereof the said sum of may be levied, pursuant to the said warrant : these are therefore to command you, the said con- stable of to apprehend the said . and convey the said ■■ to the said house of correction at — — and to deliver the •aid » there to the said keeper of the said house of correction: I) < 144 €ouvt Of ire^fi^fit, $?c* nnd these are also to command you, the said keeper of the said house of correction, to receive the said — — into the said house ofcorrection, and there to keep to hard labour for the space of— — from the date hereof, or until such sum of together with the expenses attending the commitment of the said to the said house of correction, be first paid, or until the said ,. , be discharged by due course of lav , Given under my hand and seal, at — — the ■ day of in the year of our lord 18 — COUNTY COURTS. - "^ See title •' Outlawry," and stat. 55 G. 3. c. 2. 3 W, 4. c. 6. COURT OF REQUESTS. A' • J By statute 3 ^. 4. c. 1. entitled, " an act to repeal part of, amend and reduce to one act of parliament, the several laws now in force in this province, for the recovery of small debts ; and to extend the jurisdiction of the court of requests within the same." Two or more commissioners, to be appointed by the lieutenaui governor, are empowered to hold a court of justice, to be called a court of requests, on the first and third Saturday of each month, to hear and determine all matters of debt or contract, when the demand doth not exceed £10. and to give and pronounce such judgment, and decree, and award execution thereupon, with costs, as to them shall seem just in law or equity ; and that the acts, orders, judg- ments and decrees, of the said commissioners, shall be final between the parties. Commissioners Fees, ; ,: ,, ^ ; For every final judgment, two shillings. Clerk's Fees. H\\ iM. i^i . i\f For recording judgment, six pence : for every summons or sub- poena, six pence : for every copy of judgment, (if demanded), one shilling : for every execution, one shilling. Dailff\t Fees, For serving every summons or subpoena, within one mile of the clerk's house, one shilling: for every mile in travelling to execute process or execution, when the distance exceeds one mile, four pence : for serving a writ of execution, seizing and selling effects, and making return, if the judgment does not exceed j£5., two shiN Y erimiiial iUMi> $ct. 145 lings and six pence: ditto, ditto, if judgment exceeds £5., in like proportion. The allowance to be paid to witncssc;^ not lo exceed two shillings and iiix pence per day, at the di&cretiun of the commissioners. ■['• ' i :.: . '.; KfArr •"!* CRIMINAL LAW. By statute 14 G. 3. c. 83. ^11. It vvn» enacted, that the criminal law of England should contiiinc to be administered and ob- served as law in the province ol' Quebec, (of which the province of Upper Canada then formed a part) as well in the description and quality of the offence, as in the method of prosecution and trial, and the punishments and forfeitures (hereby innicted, to the exclu- sion of every other rule of criminal la^v, or mode of proceeding, which prevailed in the said province before tlie year 17G4 ; subject to such alterations as the provincial legislature might thereafter make therein. Since the division of th.* said province into the present provin- ces of Upper Canada and Lower Canada, by stat. 40 6r. 3. c. 1. (of this province) entitled, '* an act for the further introduction of the criminal law of England into th\^ province," it is enacted, that the criminal law of Englani! ^r it stood on the 17th day of Sept. 1792, shall be and the same is thereby declared to be the criminal law of this province." (Note-^the 32 O. 3. is inclusive.) *'.^T.^- {■- CURRENCY. (:■.'• r^>ir, l^jjy By statute 2 G. 4. c. 13. entitled, " -^.w .i^t to establish an uniform currency throughout this province," it is enacted, that no interest shall be recovered on any bond, note, or other instrument, made after that date, (1st July, 1822) in which the penalty or sum payable shall be expressed in New-York currency, nor any costs allowed in actions brought thereon ; and after the 1st July, 1822, no rendering of an account shall be considered a demand, nor shall any admission be given in evidence a^' an acknowledgment of debt, unless such account shall have been rendered in provin- cial currency ; and no shop-books shall be given in evidence unless made in provincial currency. - CUSTOMS. * • » — • , ■ ♦'.■ " By an imperial statute 6 G. 4. c. 114, entitled, "an act to regu- late the trade of the British possessions abroad," the following goods are prohibited to be imported into this province inider cer- tain restrictions, y'vt., K 1 1?,' ,J S'^ ' ipi ml ^91 ' Hgi m am i -^MM li Ifl i Isj ; IfiHll fIi' 1 iiHi If ^WM f|:lJ«i 1 p iffi'i Ml 146 eti0toni0. '^ Gunpowder ; arms ; ammunition or utensils of war ; except from the United Kingdom, or from some other Britiih possession. Tea prohibited to be imported except from the United King- dom, or from some Dritish possession in America, unless by the £ast India Company, or with their license. Fish, dried or salted ; train oil ; blubber, fins, or skins ; the pro- duce of creatures living in the sea, prohibited to be imported ex- cept from the United Kingdom, or from some other British pos- session, or unless by British ships fitted out from the United Kingdom, or from some British possession, and brought in frora the fishery, and except herrings from the Isle of Man^ taken and cured by the inhabitants thereof. . „,, ,\ , , ^,,.., Base or counterfeit coin ; books, such as are prohibited to be imported into the United Kingdom, prohibited to be imported. '■■.■^. : Duties: -',',■■• 'i.ut Ji'...^ii^. > Payable upon goods, wares nnd merchandize, not being of tlie growth, produce or manufucturo of the Uniteu Kingdom, or of any of the British possessions in America, or the Island of Mauritius, imported or brought into any of the Britisii possessions in America, by sea, or by inland carriage, or navigation. .^ , _;' For every 1000 shingles, not more than 12 inches in length,.... £0 7 '* every 1000 shingles, being more than 12 inches in length, 14 " every 1000 red oak staves, or headings........... 15 *• every 1000 white oak staves, or headings,. ........ 12 G •* every lOOO feet of white, yellow, or pitch pine lum- ber, of one inch thick, r.......... 110 " every 1000 feet of other kinds of wood or lumber,. 18 ** every 1000 wood-hoops, 6 8 Horses, mules, asses, for every £100. of the value...... 10 Spirits, viz. : — brandy, geneva, or cordials, for every gal. 1 And further, tho amount of any duty payable for the time being, on spirits, the manufacture of the United ' - ' Kingdom. Wine, imported in bottles, the tun, containing 252 gals.. 7 7 And further, for every £100. of the true and real value thereof, 7 10 And for every dozen of foreign quart botties in which such wine may be imported, 1 Not in bottles, for every £100. of the true value thereof, 7 10 Rum, for every gallon,. C And further, the i»iri<»uRi of any duty payable, for the * i i- ^w' time being, on rum, I . ho produce of any of the Brit- mv*. iU v«j ish possessions in Sou;- nerica or the West Indies. t y;uj^i «w! emttmn. 147 7 40 ,.ii jrj :i Hi) \ •>■ Alabaster, anchovies, argot, aniiisced, amber, almonds, ',' «i> brimstone, botargo, box vood, &c. &c. for every iClOO. of the true and reul value thereof. Clocks aod watches, leather manufactures, linen, musical instruments, wires of all sorts, books und papers ; < , . ' for every £100. of the true aud red value thereof, 30 Glass and manufactures, soap, refined sugar, sugar candy, tobacco munu'uctured, for every JCIOU. of the true ' and reul value thereof, 20 Hay and straw, coin and bullion, diamonds, salt, fruit and vegetables, fresh, cotton wool, goods, the produce of places within the limits of the East India com- pany's charter ; horses of pursouH travelling into or through the province of Upper Canada, and neces- sarily used in removing themselves, their families, aud baggage; cord wood fur fuel, and saw logs brought into Upper Canada ; herrings taken and cured by the inhabir.mts of the Isle of Man, und imported direct from thence ; any suit of craft, food and victuals, except spirits, and any sort of cloth- ing and implements, or materials fit and necessary ., , „ for the British fisheries in America, imported into [^ . , j ^ the place at or from whence such fishery is carried ' on, in British ships; rice and Indian corn, and r> '. ' ' lumber, the produce of any British possession on thu west coiist of Africa, and imported direct from ^ thence, duty free. Goods, wares or merchandiv.e, not being enumerated or described, nor otherwise charged with duty by this act ; for every £100. of tho true and real valuo ..J thereof, 15 n' And ifany goods shall be imported contrary to this act, or re- moved before the duties are paid, such goods shall be forfeited, together with the vessel, boat, or carriage and the !. arses, or other cattle, in or by which such goods shall be imported, or so remov- ed. <^ 31. And every person who shall assist, or be concerned in the unshipping, landing or removal, or in the harboring of such goods, or into whose hands or possession the same shall knowingly <:ome, shall forfeit treble the value thereof, or the penalty of £100. at the election of the officers of the customs. ^51. One-third of the forfeitures and penalties under this act, after deducting the charges of prosecution, shall go to the collector, for the use of his Majesty ; one-third to the lieutenant governor, and the remaining tliird to the party that shall sue. ^ 63. All suits for penalties may be brought within three years. ^ 69. Proof that the goods were lawfully imported, shall lie on the party. *^ 61. No action against ■ 4 148 I9r!lt0tll»— r^«n of) ... f* /f any officer of the customs shall be commenced against any oflicer of the customs, until after one calendar month's notice. <^ 63. And must be commenced within three uionths. <^ 64. By subsequent statutes 7 &c 8 6r. 4. c. — . and 1 W, 4. c. 24. beefy pork, cocoa nuis, corn or grain, unground, meal, flour, not made of wheat, bread, biscuit, rice and live stock, wheat, flour, pork, hams, bacon, wood or lumber, may be lawfully imported dutyfree, D'E.WnOB.'&^CDetentifm of) '' By statute 10 G, 4. c. 2. any justice of the peace, upon affiuavit before him made, may issue his warrant under his hand and teal, and cause a defendant to be arrested and detained, until he can be served with a proper process of the court in which the plaintifl' may intend to proceed with his suit, for the recovery of his debt; which affidavit shall be made by the plaintiH*, his, her, or their servant, clerk or agent, and may be in the form hereinafter men- tioned, or to a similar effect, — such detention, in no case to ex- ceed four days. ^ 2. The sherifi*, upon such warrant, is required to receive and detain such debtor, for any period not exceeding forty-eight hours. ^ 2. This act to remain in force for two years, and to the end of the next session. Form of the Affidavit. ^^j i^f'^ — — District, > A. B. of the township of in the to wit. S trict — — maketh oath and saith, that C. D. is justly and truly indebted to him (or her) this deponent (as the case may be) in the sum of jC of lawful money of Upper Cana- da ; and deponent further saith, that he (or she) is apprehensive that the said C. D. will leave this province without satisfying the said debt before the regular process can issue to hold him to bail ; and that he (or she) does not sue out process from any vexatious or malicious motive whatsoever. 5worn before me, at in the — district, this day of 18— Note, — No person can be arrested for any debt under 40s. ' -f'SV.' I To JForm of the Warrant, a Constable of the District of* These are to command and require you •■■ to take into your custody C. D. and his person detain in security, until the expiraton of four days from the time of actual arrest, A. B. having made oath before me, as a justice of the peace, that the said C. D. ii indebted v^^^ mn\ $CC^O)Oin 149 to him in the sum of £ .»_ ; and for so doing tiiis shall be your sufficient authority. Dated at ^.-^ in the district of this — — day of 18— E. F. J. P. (L, S.) By sec. 4. the following fees may be taken : — . ^ Justices of the peace for each aiHdavit, £> 2 6_ '*' For each warra?% 2 6 Constable apprehending debtor, O 2 6 ^ Every mile of travel 4 For actual detention in cliarge, per diem, 5 This act was allowed to expire, but is now again revived and conti- nued, by the 4 W, 4. c. C. for four years, and to the end of the next session. ill' ■ • •^.:•- DEER. ^- -<' By Statute 2 Cr. 4. c. 17. No person shall kill any deer in this province, /er(s naturcBt after the lOlh January until the 1st July in every year, under the penalty of 40s. to be recovered before any two justices ; one moiety to the province and the other to the in- former. This act not to extend to Indians. N. B. This act does not contain any power of distress or sale for the penalty. ' Deserters. — see post title " So Wtcr';." ■ r "f Detaining Warrant. — see "Debtors^ "I' ' -.■'.'_J '-.'.:,'. ".';'• r ii'- _ «.,^.»..J^ '_ «.^»^ -^ ■' * '•' * '^'•- '" •- ' ■> ,, DISTILLERS. ,. .j Bv statute 34 Cr. 3. c. 12. ^ 11. distillers are not to sell or barter any quantity of distilled liquor, less thnn three gallons, nor shall the secretary of the province, or any of his agents, grant to a dis- tiller a license to retail spirituous liquors. ' ^^^ - DISTRESS. To justify taking a distress, the party must have a regular warrant for so doing, and must take care that the things taken are distrain- able, and that the distress is made in due time and place. Co, Lit. 47. All distresses must be made in the day time, unless in the «:ase of cattle distrained damage feasant, I Inst. 142. Bull. N, P. 61. Persons making a lawful distress, may sell the same upon tite premises, in like manner as may be done off the same. 2. fV. Sf M. Sesa, I. c. 5. 150 muixcuu. ()/ Dittress by Warrant of Juttius ofthi Ptate. Dy slaluio 27 (J. 9. c. 20. it is enacicd, as follows ;— In all cases where any justice of the peace is, or shall be required or impowered by any act of parliament, to issue a WDrrant of distress, for the levying of any penalty inflicted, or any sum of money directed to be paid by such act, it shall be lawful for the justice granting such warrant, therein to order and direct the goods and chattels so to be distrained, to be sold and disposed of within a certain lime, to be limited in such warrant, so as such time be not less than four days, nor more tlinn eight days, unless the penalty or sum of money for which such. distress shall be made, together with the reasonable charges fur taking and keeping such distress, be sooner paid : and the ofliccr moking such distress shall and may deduct the reasonable charges of taking, keeping and selling, such dis- tress, out of the money arising by such sale, and the overplus (if any) after such charges, and also the said penalty or sum of money fhall be satisfied and pnid, shall be returned, on demand, to the owner of the goods so distrained ; and the officer executing such warrant, if required, shall shew the same to the person whose goods are distrained, and shall suHTer a copy thereof to be taken. When an act of parliament orders a distress and sale of goods, it is in the nature of an execution, and replevin will not lie. Bac. ^6r. title "Replevin." Jf, in seizing for the whole sum due, the first distress is found insuflicient, from mistaking the value of the goods seized, a second riistress may be made. Burr. 569. Distress Warrant, where part of the Penalty goes to the Informer ^ and part to the Pttor^ i. c. to the District, sec 11 Cr. 4. c. 1. (Toone.) To the Constable of and to all other Constables in and for the Home District. Home District, > Whereas A. B. of labourer, is duly con- to wii : \ victed before me J. C. esq. one of liis Majesty's jiistircs assigned to keep the peace, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said dis- trict committed, for that he the said A. B. on the — day of in the year of the reign of our sovereign lord William the fourth, did [ihscribe the ojfemc as in the statute] contrary to the form of the statute in such rase made and provided, whereby he hath forfeited the sum of £ — of lawful money of Great Britain. These arc therefore to command you, forthwith to levy the said sum of £ — by distraining the goods and chattels of him the said A. B. and if uithin the space of days (not hsu than four nor BiKKtrciOifit. 151 more than eight days, by 27 Geo. ^. unkss oi ha wine directed by particular ttatute) next uftcr such distrcs^s by you taken, the stiid sum shall not be paid, together with the reasonable costs and charges of taking and keeping the same, that then you do sell the said goods and chattels so by you distrained, and out of the money arising by such sale, that you do pay the sum of £ — part of the said sum of X — to C. D. of yeoman, who informed me of the said offence ; and the sum of <£— the remainder of the said sum of ;£— so forfeited, that you do pay to the treasurer of the •aid district* to be appropriated by him to the purposes of the said district, returning to him the said A. B. the overplus, on demand, the reasonable charges of taking, keeping and selling the said dis- tress being first deducted : and you are to certify to me, with the return of this precept, what you shall have done in the execution hereof* Herein fail not. Given undsr my hand and seal at in the said district, the day of — -— A. D. 18 — . ■ni! The UkCf where pari of the Penalty goes to the King. (Toon :.) As in the last precedent, till tlie words " arising by such sale,'* after which, add — that you do pay the sum of<£ — being oui: moiety, (if the act so direct) of tlie said sum of £ — fo forfeited, to me the said justice, for the use of his said Majesty, his heirs and successors ; and £ — being llio other moiety, (or the remaindf r) of the said sum of £ — so forfeited as aforesaid, that ynu pay to — — [as the act directs, if in several shares or appropriations, Fpe- Cifycach]. riJi'- --x ., , Warrant of Distress for Penalty and Costs^ where the Penalty has been mitigated. (Toone.) To the Constable of in the Home District. Home District, > Whereas by a certain conviction under our hands to wit. I and seals, bearing date (he day of ■■. 18 — , one A. B. of was duly convicted before us, J. C, and S. P. esquires, two of his Majesty's justices of the peace in and for the home district, upon the information of C. D. of ■ - ■- and on the oath of£. F. a credible witness in that behalf, ofr :< raiin of- fence committed by the said A. B. fur that ytalc the ojfcnce as in the conviction, to the tvonls * contrary to the atalutc, ^yc.'] whereby, and by force of the statute in that case mnde and provided, the said A. B. was, for his said o(rencc, adjudged tf. forfeit the sum of £ — \as in the conviction']. And whereas, we the said jlistices seeing cause to mitigate and lessen the said penalty, do, at the re- quest of the said A. B. according to the statute, mitigate and lesson the said penalty to the sum of £ — over and above the reasonable / ./ 152 Btotrici Court i^ coets uiid charges ofthe said informer, by bim laid out and expend- ed in and about tlie s»id information and conviction, to be distri- buted and applied, one moiety thereof to the use of our lord the King, and the other moiety thereof to the said C. D. the informer, and which said costs and charges ofthe said C. D. the informer, we the said justices do allow, assess and adjudge, to him, with his assent, at the surn of jC — of like lawful money, according to the statute in that case made and provided. These are therefore to command you, to levy the said sum of JC— and also the said sum of jG — the costs and charges aforesaid, ofthe said C* D. the infor- mer, making together the sum of £ — by distress and sale ofthe goods of the said A. 6. and we do hereby order and direct, that the said goods and chattels which shall be so distrained, be sold and disposed of within six days from the time of making the said distress, unless the said sum oi £ — for which such distress shall be made, together with the reasonable charges of taking and keep- ing such distress, shall be sooner paid : and you are hereby com- manded to certify to us the said justices, what you shall do by virtue of this our warrant. Given under our hands and seals, this ' day of in the year of our Lord 18 — . , ^ ConstabWs Reluni of Warrant of Distress^ to be indorsed on the \ni:yr:ui' ' i-ili ■<-l ' Warrant. (Toone.) V '* ^? * n. r-Mr":.. i' W. S. constable of ivithin mentioned, maketh oath, this day of 18 — that he hath made diligent search for, but cloth not know of, nor can he find sufficient goods and chattels of the within mentioned A. B. whereon to levy the witbiu mentioned sum of £ — as therein he !» commanded. _ •. . Sworn, he. i ->;%•,■ /: .i,W' ^•.>!«T Grfent DISTRICT COURT. ^^'« ^'^ ' '^«' Bv Statute «1 Ir. 4. c. 2. a District Court is established in every district, and authorised to hold plea in all matters of record, from 40s. to £15 ; and when the amount is liquidated or ascertained, either by the act of the parties or the nature of the transaction, then to the amount of jC40; and also, in all matters of tort respect- ing personal chattels, when the damages to be recovered shall not exceed £15, and the title to the lands shall not be brought into question. The periods of sitting, or terms, for the said court in each and every year shall severally commence on the Monday in the week next but one ptcccding the week, and at the place in which the quarter sessions arc held, and bhall cud on the Saturday in the same week. uav|i !»fSf' mntvitt jfxiMu, ^t. DISTRICT FUNDS. 153 ■> • .«j:»'/-.;7 4^i*»/ ftM By Statute 8 O. 4. c. 4. Justices of the peace at their general quarter sessions next after the passing of this act, and yearly after- wards, are required to cause a true and correct statement, in detail, of all monies raised, levied and collected, for the year preceding, upon any rate or assessment, for the public use of the district, with a detail of the expenditures, together with the account for which the same is paid, to be published in some newspaper of the district, and a copy to be affixed in some conspicuous place on the court house ; and that the expense of i^uch publication shall be paid out of the district treasury, by order of sessions. .i ■ I.)-!.. rj Lify.f, Jiix DISTRICT SCHOOLS. I H ■'V:1:*: By Statute 47 G. 3. c. 6. For the establishment of public schools the sum of j£800 shall be annually paid as hereinafter mentioned. <^ 2. One school shall be kept in each district, and out of said ^800 Hie sum of £100 shall be paid to every teacher. <^ 3. The public school for the western district shall be kept in the town of Sandwich ; for the district of London at Vittoria, (sec 48 Cr. 3. c. 16. ^ 1.) — for the district of Niagara in the town of Niagara ; for the Home district in the town of York, (now city of Toronto) — for the district of Newcastle in the township of Hamilton, at such place as the trus- '.ees shall appoint ; for the Midland district in the town of King- ston ; for the district of Johnstown at Brockville, (see 59 0, 3. c. 4.) — and for the eastern district in the town of Cornwall. ^ 1. The lieutenant governor shall appoint the trustees, and the trustees shall nominate a fit person as teacher, and report such nomiuation to the lieutenant governor who may affirm or reject such nomination : the trustees may also remove any teacher, and nominate another* and report as aforesaid. <^ 5. Trustees authorised to make rules and regulations for the government of such schools. ^ 6. Salaries of the teachers shall be paid half yearly, for which the lieutenant go- vernor may issue his warrant to the receiver general ; such teach- ers producing a certificate of good conduct signed by the trustees, or the majority of them. By statute 59 G. 3. c. 4. Provision made for establishing a pub-- lic school in the district of Gore. ^ 2. And JCIOO per annum to pay the teacher. ^ 4. Annual public examinations shall be held in every district school previous to the annual vacation. ^ 5. Annual reports to be made b3' the trustees of district schools, after the pub- lic examination, to the lieutenant governor, to be laid before the legislature. ^^ 6. Trustees empowered to send ten poor cbiKlren to be taught gratis. -^ 7. To be drawn for by lot, viz : — the tvus- 01 mW^' u^^' ' ^^^^^B • ^^^H' "^ HI 1 h^i 154 BO||0. tees for the commou schools shall return the names of one or more, not exceeding four, from each common scoool to the trustees of the district schools where they shall reside, and the number shall be drawn by ballot, at a special meeting to be openly held for tlie purpose. <^ 8. Vacancies shall be filled up by a fresh ballot. ^ 1 1. No more than £50 shall be paid to the teachers unless they have more than ten scholars. ^12. The form of the certificate required by the twelfth clause of the 47 G. 3. shall be as follows : — "At a public meeting of the trustees of the district school, upon due notice given for that purpose, a majority of the trustees being present, we cer- tify," &c. By statute 4 G. 4. c. 27. The like provision is made for a public school in the Bathurst district; and by statute 4 G. 4. c. 28. A public school in the district of Ottawa. <^ 3. To be kept at Lon- guiel, under the same regulations as other public schools ; and by statute 1 W. 4. c. 7. ^ 9. A public school in the district of Prince Edward, so soon as the county of Prince Edward shall be erected into a separate district, to be kept in the township of Hallowell, under the like regulations as other district schools. \.^ . ~ ' ■ DOGS. ■■ "^ ' "V:-"" The stealing of dogs is not n felony, either at common law or by statute. 4 JBL Com, 236. — but is punishable by the following statute: - - .. > By 10 G. 3. c. 18. if any person shall steal any dog or dogs, of any kind or sort whatsoever, from the owner, or from any person intrusted by the owner with such dogs ; or shall sell, buy, receive, harbour, detain, or keep any such dog or dogs, knowing the same to have been stolen, every such person, convicted upon the oath of one witness, or his own confession, before two justices, shall, for the first offence, forfeit not exceeding thirty, nor less than twenty pounds, as to such justices shall seem meet, together with the charges previous to, and attending such conviction, to be as- certained by such justice before whom such ofiender shall be con- victed ; and in case such penalty shall not be forthwith paid, sucli justices shall commit the offender to the common gaol or house of correction, for not exceeding twelve nor less than six calendar months, or until the penalty and charges shall be paid ; and if any person, having been convicted as aforesaid, shall afterwards be guilty of ihe like oflene^, and shall be thereof convicted in manner aforesaid, every sucl person shall forfeit not exceeding fifty, nor less than thirty pounds, as to shcIi Justices shall scrni nieeti together with the charges previous to, and attending such 'BOQU. 155 coiiyictioi), (o be ascertained by such justices bcfurc whom audi oflfender shall be so convicf.ed ; which penalties shall be paid, one moiety to the informer, and the other moiety to the poor of the parish whe/e the ofience shaVl be committed ; and upon non-pay- ment thereof, such justices shall commit the oflendcr to the com- mon gaol or ]iouse of correction," fur not exceeding eighteen, nor less than twelve months, or until the pe v . .u A. B. > j- „ c. D.5-^-^- Which certificate shall have the same force, and be as valid, as if the same had been made and certified under the provisions of an act passed in the 37 Geo. 3. entitled, " an act for the more easy barring of dower." ^2. Justices' fee — 2s. 6d. . ,< v ELECTIONS. m v>furti See Constitutional Act 31 G, 3. c. 31. ' ■ 1 By statute 39 6-. 3. c. 14. any member accepting the office of registrar, shall thereby vacate his seat. J3y statute 43 G, 3. c. 41. members for counties shall be entitled to ten shillings per day during their actual attendance in parlia" ment, and in going to, and returning from the house of assembly ; to be levied by an assessment on the parishes, townships, or places within the county or riding represented by such member. By statute 48 G. 3. c. \,% 26. members shall be exempted from serving in the militia, unless in time of actual service. By statute 60 6r. 3. c. 2. after noticing the rapid increase of the population in this province, and that the representation in the commons house of assembly was deemed too limited, it is enacted, that after the end of that parliament, every county then formed or organized, or which should be thereafter formed or organized, the population of which should amount to 1000 souls, shall be re- presented in the provincial parliament by one member, and when the population in such county shall amount to 4000, by two members ; and that every town in which the quarter sessions are holden, containing a population of 1000 souls, shall be repre- sented by one member. <^ 3. The population shall be ascertained by the returns of the several town clerks, in the several towns or townships of the province, transmitted to the governor. "§'4. Whenever a university shall be organized, the same shall also be represented by one member, the electors, besides the qualification by law required, being also members of convocation. ^ 5. invests the governor with the power of issuing writs for the counties and university, in like manner as provided by the 31 G. 3. c, 31. § 18. § 6 &£ 7. This act shall not reduce the number of members now returned for any county ; and when any county shall contain less than 1000 souls, the same shall be attached to the next adjoining county in which there shall be the smallest number of souls. <^ 9, 153 Slrrtfoni^ If t No persojj qtiaiincd to vole Tor a lown member, shall vote for the county upon tho san c freehold. <^ 10. The populaijoii of any lowit returning a mcmhrM' bIjoII not be considered as a part of the number of i-juls to give t!je county iwo members. By stuiiite 4 ^f. 4. c. 3. per»onb having resided in a foreign country, or taken the oath of allegiance to a foreign state, are de- clared ineligible as meuibcrs, unless they shall have resided in this province seven years next before the election at which they shall be chosen : ^nd by § 4 &£ 5. Any persosi so oflering themselves, shah incur the penalty oil .€200. and a further sum of £40. if tlicy shall presume to sit. <^ 6. Persons who have abjured allegiau4:c to his Mnjesty, or held certain otnct-r in the United States, or been convicted of ofl'ences in a foreig.i country, shall be disqualified rron. being members : and by *^ 0. A member to be qualified, must pos- sess freehold lands in the province to the assessed value of £iV. besides taking the following oath, if required. I, A. B. do swear, that I truly and bona fide have such a free- hold estate, [here describe the estate\ over and above all incum- brances thri may aflect the «;»me, and am otherwisi. qualified accorditig lo the provisions of law, to bo elected and returned tii serve as a member iii 'he commons house of assembly, according to the lenor and true iuUnt :nid mejuiing of the act of parliament in thniL behalf, nnd that I !.n)ve not obtained the same fraud ulentl)', for the purpose of enablin^^ »i»e to be returned member to the com- mons house of assembly of this province. So help me, God. Sec. 8. If any cundidat<^ shall have resided in the United State«:, he shall, if required, also take the following oath : — I, A. Li. do sincerely and solemnly swear, that during my resi- dence in the United States of America, 1 have not taken or sub- scribed any oath of abjuration of allegiance to the Crown of Great Britain; and further, that during my said residence, I b^ve not held the >i1ice or appointment of senator, or member of the house of representatives of the said United States, or of either of the said United States, respectively, or held or enjoyed any office in any of the executive departments of state in the said United States, or slate, respectively. So help me, God. -. < • Sec. 19. The oaths required by this act, shall be administered by the sherifi*, mayor, bailifi', or other officer or officers, who shall have to take the poll or make the return at such election, who shall certify the same into the court of king's bench, within three months afterwards, under the penalty of <£200. and the election of any candidate refusing to take the oaths shall be void. ^ 12. re- lates to residence in a foreign country, and is repealed by 4 W. A. c. 14. <§. 13. No person shall vote in respect of any estate suffi- ti«is c-i # I foreign ?, are de- ed in this liey shall tmselvps, }. if thi'v llegiaiH:e , or been fied fion. nust pos- of £i{: h a fiee- II iricum- qualified lUi'Hed t(i ccordhic! 1. '^ irliainent dulenti)', tho com- lod. id States, my resi- I or sub- of Great bave not the house f the said :e in any States, or ]inistered who shall :ion, who hin three lection of ^ 12. re- taie suffi- cient to qualify him by law, not having come to him from the crown, descent, devise, or marriage, unless the deed of conveyance shall have been registered three calendar months before the elec- tion, or unless he shall have been twelve calendar months in possession and receipt of the rents and profits, next before such election. <^ 14. No election shall continue more than six days, (Sunday, Christmas day and good Friday, excepted). The 4 W. 4. c. 14. repeals the 12. &6 15. ^ 4 6r. 4. c. 3. and by <^ 3. enacts, that before any elector shall vote at any election, ho shal^ (if required) in addition to the oath required by the 31 (i, 3e c. 31. take the following oath : — I, A , B. do swear, that the estate in right of which 1 vote at ^i^is ci'M Jon, is [here describe the estate^ as the case may be'\ which 1 hold by grant from the Ck'own, (descent, devise^ marriage^ or conveyance., as the case may be) and (in case such estate shall have been derived otherivise than by grant from the crotmif descent, ma.riag:. or devise) that I have bten in actual possession, or in the receipt of the rents and profits thereof, to my own use, by virtue of such conveyance, above twelve calendar months ; or, (as ike cose may be) that the conveyance to me of the same has been registered three calendar months. •'--^ "'^ -^ ■■-•"' ^'^■- Returning Officers. - --•- ^-^Hr^sf^' . By statute 33 G. 3. c. 12. the Iteutenant governor shall nomi- nate and appoint a returniuf ' officer for every county or riding, division or town, within Jie province ; but that no person shall be obliged to execute the office any longer than one year. <^ 3. This act shall continue in force seven years. (Revived and continued by 40 G. 3. c, 5.; 48 c. 5.; 52 c. 11. Ist sess,; 66 c. 4.; 59 £. 23. ; by 4 G. 4. c. 2. ; and now made perpetual by the 3 W. 4. c, 12.)-- which also provides for the following fees and expenses, to the returning officer, to be paid by the treasurer of the district : For each day*8 attendance in taking the poll, <£l 5 For a poll clerk, per diem, 1 For hustings, (when necessary) 5 For two constables, each, per diem,. 10 ^ 3. That a poll-book shall be kept by the returning officer, in all cases where a poll shall be demanded, in which a true and correct state of the poll shall be iLserted, according to the form mentioned in the act ; of which poll-book the returning officer shall keep a correct copy, and shall transmit the sriginal, with the writ of election and return, to the clerk of the crown in chancery, within ten days after the election, upon dath, to be [i : i li ii \ M 100 TBmUtiitttUf ^t. administered by any justice of the peace, or by a commissionoi' EMBRACERY, of the king's bench. Is an attempt to influence a jury corruptly to one side by pro- mises, persuasions, entreaties, money, entertainments, and the like. The punishment for the person embracing is by fine and impri- sonment ; and for the juror so e .ibraced, if it be by taking money tlie punishment is (by divers stai> .*es of the reign of Edw. 3.) per- petual infamy, imprisonment for u '»)ar, and forfeiture of the ten- told value. BL Com. p, 140. 15. 12d. ... ...... ..^'■iJ.^|i 6h,-. J- ]„.(• ;.:■■■■.■ )r..i ;,,.-■ '■ ESCAPE. ; ^^' ^^"'-' di'Kl^.-., j'j'.l'-f. ..*-n '""-' i ^**^ ^i' • Where a person hath another in lawful custody, upon an arrest, whether made by himself or another, if he suflfer him to go at large before he is delivered by lawful authority, it is an escape, for which he is punishable ; but the arrest must be for a real, and not a supposed crime. 2 Haw. c, \Q. ^ 2. And the imprison- ment must be for a criminal offence. lb. ^ 3. And a gaoler is guilty of the offence, if he give a prisoner more liberty than the law allows ; or, if he suflcr the prisoner to go out for a time, though he afterwards return. lb. ^ 5. and Dalt. c. 159. Where a person is found guilty on an indictment, of a negligent escape, he is punishable by fine and imprisonment, .according to the quality oC the offence. 2 Haw. c. 19. 1 Hale, 600. G04. And if a voluntary escape, he is punishable in the same degree as the offence of which the party is guilty ; but no one shall be deemed gailty but the actual offender. 2 Haw. c. 19. % 23. By statute 16 G. 2. c. 31. to assist a prisoner, convicted of treason or felony, to attempt an escape, is felony, and subjects the offender to transportation for seven years ; and if ihe party be committed for petit larceny, or on a civil process for debt, amounting to .£100, he shall be guilty of a misdemeanor, and liable to fine and imprisonment ; and for conveying any disguise, or instrument, or arms, to facilitate the escape of prisoners convicted of, or committed for treason or felony, the offender shall be trans- ported for seven years; or if for petit larceny, or civil process for a debt kc, amounting to £100. he shall be deemed guilty of a misdemeanor, and be liable to fine and imprisonment. ^ 2 &c 3. And assisting a felon to escape from a constable, is by this statute also made felony, and subjects the offender to transportation for seven years. lb. , -, . , ,. . ^-?. mxitm' 'X IGl This statute does not extend to cases where an actual escape is made, but only to cases where an attempt is made, without enect* ing the escape. R. v. Tilh^t and others^ O. B. Sest. 1795. Warrant to apprehend a person for Escaping from tkt House of Correction. (Toone.) To the Constable of in the Home District. Home District, > Forasmuch as A. B. keeper of the house of cor- lo wit. i rection t — — in ■■ — hath this day made information and complaint, upon osith, before me, J. C. esquire, one of his Miijesty's justices of the peace, acting in and for the home district, that C. D. hath unlawfully and wilfully escaped from the house of correction at — — _ aforesaid, and from and out of the custody of him the said A. B. the keeper thereof, before the expiration of a certain term, for which he the said C D. was ordered to be imprisoned and kept to hard labour therein: These are therefore to command you, the said constable, forthwith to apprehend and bring before me, or some other of hi6 Majesty's justices of the peace for the said district, the body of the said C. D. to answer unto the said complaint, and to be further dealt with according to law. Given under my hand and seal, Sic. ; * i ? • .: ^ jr;^i.*K»* '*»$! . . . ' ;».-... Mi', t.iii \t^ \tAil,..\m An Estreat, (from extractum) \% a true copy or extract of some original writing or record, containing an entry of fines or amerci- aments imposed by a court of record, or other competent authority ; but when applied to a recognizance itself is extracted or taken out from among the other records, and sent up to the exchequer. 4* Bl. Com. 253. By the 22 h 23 C. 2. c. 22. all clerks of the peace are lound under the penally of .£50. to deliver to the sheriff yearly, a perfect estreat of all fines &lc. ; but as thit statute more particularly refers to the mode of collecting the same in England, which differs from the practice in this province, it can scarcely be said that this, and other statutes relative to estreats, apply to this province. The law, as it now stands, with regard to estreats, and recognizances in particular, is very defective; and inconsequence, forfeited recognizances are seldom enforced, from the circuitous method which the public prosecutor is obliged to adopt in order to enforce the payment. An amendment of the law on this sub- ject is much required, and would have, probably,, its due opera- tion on crime, by lessening, in some degree, the number of cases. 162 e^Hrnrr* 11 when it shall be found that a recognizance, instead of being a mere /orm, as it now is, will in fact be a real and lubstantial pledge — easily and expeditiously enforced, upon forfeiture. At present, the practice is, for the clerk of the peace to make bis return, which may be in the following form, upon which a prosecution by scire facias is commenced in the king's bench, to recover the amount. Form of the Estreat. — m.^ Home District, > An extract of all the issues, fines, amerciaments to wiK ) and recognizances, set, lost, imposed and for- feited, to our sovereign lord the King, at the general quarter ses- sionsof the pence of our said lord the King, holden at in, and for the said home district, on — — the day of . in the __ year of the reign of before esquires, and others, justices of our said lord the King, assigned to keep the peace in the said district, and also to hear and determine divers felonies, trespasses, and other misdemeanors, in the said district committed, esquire, clerk of the peace for the district aforesaid, then and there attending. Of A. O. late of the township of in the said district, labourer, for a trespass and assault at the township aforesaid, whereof he it indicted and convicted ; his fine set at five shillings, which he paid to the sheriff in court, , £0 i Of B. D. of in the suid district, yeomun, because he came not now here to (inswer to such things as against him, on the part of our said lord the King, should be ob- jected, as by a certain recognizance taken before J. P. esquire, one of the justices of our said lord the King as- signed to keep the peace in the said district, he undertook, 10 Of P. Q. of in the said district, yeoman, one of the pledges of the said B. D. because he had him not to answer as above, 5 Of R. S. of in the said district, yoonian, the other of the pledges of the said B. D. for the like,. . ......... ft ■/>.»(/ ■>f:rj'.i. EVIDENCE. '*.' 'su; "i'siJ;r'-) Evidence, in its general sense is the testimony of witnesses, given upon an issue joined between parties in a civil or criminal suit. 1 Inst, 283. In general, n person is a competent witness unless interested in the event of the suit, either directlj' or indi- rectly. 7 T. R, 62. and by the common law informers who par- ticipate in any penalty are not competent witnesses ; but they are sometimes rendered so, by act of parliament in particular cases. n$mmt. 163 »«' i -) * ' A y:- 1 1 •v\ 1 Ph, Ed. 117. The confession of a defendant taken on an ex^ amination before justices, is allowed to be evidence against the par- ty confeiising^, but not against third persons. 2 Haw. c. 46. ^ 3. The distinction between a credible and a rompetent witness, is, ttiat the former is not disabled from being , oducrd and sworn, but the credit of his testimony depends upon his moral character ; the latter may be disabled by interest, and other causes, from giving evidence, and on that account is incompetent. 2 If. H» 276, 277. If a person be convicted of treason, felony, forgery, perjury, subornation of perjury, attaint of false verdict, and other ofiences of the same description, which involve the charge of falsehood, and afiect the administration of justice, he Is incompetent to give evidence. So, if convicted of bribing a witness to absent himself and not give evidence ; barratry or conspiracy to accuse anc.iier of a capital offence. Russell on Cr, 592 ; 593. The incompetency must be proved by the production of tlie record of conviction and judgment. Gilb, 128 ; 129. The admission of the witness himself that he had been convicted of grand larceny, and was then under sentence, was held insufficient. 8 East. 78. And an admission by a witness that he has been guilty of perjury, affords no objection to hisjRompetency, whatever effect it may have upon his credit. — 72. V Teal, 11 East. 309 : and by stat. 9 Ann. c. 14 ; 15. a per- son convicted of winning by fraud or ill practice in certain games is rendered incompetent. The incompetency arising from infamy may be removed — 1. by endurance of punishment — 2. by par- don — 3. by reversal of the judgment. By statute 31 O. 3. c. S5: No person shall be incompetent by reason of a conviction for petit larceny, A ivitness cannot be asked any question, the answer to which would criminate himself; but he may be asked whether he has not been in the pillory for perjury. 4 T. /?. 440, An infant 14 years of age, a-id even under, if of competent discretion, may be sworn to give evidence. 2 H. II. 278. The deposition of a witness taken extrajudicially before a magistrate is not evidence. Leach^ 397. Husband and wife are not admitted as evidence either for or against each other, except in treason ; but in polyga- my (for the second marriage being void) the second wife may be admitted as a witness. A wife may also be permitted to swear the peace against her husband, and vice versa, Bullery N, P. 2BG. A woman living with a man as his wife, though not actually so, cannot be examined as a witness on his behalf. Campbell^ v Twem- low, 1 Price^ 81. 1 Phil, Ev. 82. Quakers, Menonists and Tunkers, &c. are admissible as witnesses upon their simple affir-^ roation. 10 Gf. 4. c. 1. 1G4 TSpamitmtion, $ct. in • In. EXAMINATION. By statute 3 JV. 4. c. 3. "^ 2. jtistices of the peace, before they ahall admit any person to bail, in cases of felony, shall take the examination of such person in writing. — See further on this iub- jectf title " Bail.** See aisp title ♦♦ Justice of the Peace** — po$t. EXECUTION. I .i ( '!r:^ m mm .^,A I J. Execution is the last stage of criminal proceedings. This iniMt, in all cases, be performed by the sherifl', or his deputy, whose warrant for so doing was anciently by precept, under the band and seal of the judge. For a long time past, however, it has been the established practice for the judge to command execution to be done without any writ. The usage is for the judge to sign the calendar or list of all the prisoners, with their separate judg- ments in the margin, which is left with the sheriff. Thus, for a capital felony, it is written opposite to the prisoners name — "Let hin be hanged In/ the neck**; — formerly, in the days of latin and abbreviation — sw, per coll. for siupendatur per collum. ■ This is the only warrant which the sheriff has for so material an act as taking away the life of another. 4 Bl, Com. 403. Upon receipt of this warrant, the sheriff is to do execution within a convenient time, which in the country^ except in cases of murder, is left at large. In all cases of murder, it is enacted by the 25 G. 2. c. 37. that the judge shall, in his sentence, direct execution to be per- formed on the next day but one after sentence passed, unless the day be Sunday ; but otherwise, the time and place of execution are by law no part of the judgment. The place, however, ought to be somewhere in the county where the criminal was tried and convicted — unless the record of attainder be removed into the king's bench : which court may award execution in the county where it sits. 3 Inst. 31. 211. 217. 4 Bl. Com. 404. If upon judgment to be hanged by the neck till dead, the criminal be not thoroughly killed, but revives the sheriff must hang him again, for the former hanging was no execution of the sentence ; and if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. 2 Hale,. 412. 2 Haw. 463. . 4 Bl. Com. 406. The body of a traitor or felon is, in strictness of law, forfeited to the King, by the execution, and he may dispose of it as he pleases; but it is usual in all cases, except murder^ to give up the body for interment. Execution may be avoided by a reprieve^ or a pardon; — the former is only temporary, but the latter is permanent. Every judge who hath power to order Vt- isptoxtion. :t 165 execution, hatli alto power to grant a reprieve. 2 JIaJe, 412. When a woman quick with child is condemned, although this is 00 cause to stay the judgment, yet it is good cause to respite the execution until she be delivered. Upon this pica being made, the judge must direct a jury of twelve matrons, or discreet women, to inquire the fact ; and if they bring in their verdict quick with child-^for barely with child, unless it be alive in the womb, is not sufficient — execution shall be stayed generally till the next assizes, until she is either delivered, or proves, by the course of nature, not to have been with child at all. 4 J3/. Com. 395. If a prisoner become non compos mentis between the judgment and award of execution, the judge ought in this case also to reprieve him, fur fariosus solo furiore punitur ; and the law knows not but he might have offered some reason, if in his senses, to have stayed the execution. Ibid* Execution may be also avoided by a plea of diversity of persons, viz. — that he is not the same that was at- tainted, and the like. In this case, a jury shall be impannelled to try the facts. In all such collateral issues, the trial roust be instantert and no time allowed the prisoner to make bis defence, or produce his witnesses, unless he will make oath he is not the person attainted. Fost* 42i. By statute 3 fF. 4. c, 4. ^ 19. instead of the former punishment for treason, viz. disembowelling the traitor, and dividing his body into four quarters, it is enacted that the sentence to be pronounced shall be, " that such person be drawn upon a hurdle to the place of execution, and be there hanged by the neck till such person be dead, and that afterwards the body of such person shall be dissected and anatomized"; and when any person shall be convicted of murder, his body shall be delivered by the sherifl* to a surgeon, for dis- section. <^ 20. After sentence pronounced as aforesaid, the judge may, if he see probable cause, order n respite. <^ 22. And after conviction and judgment, the prisoner shall be confined in a separate cell, fed with bread and water, (except in case of sick- ness) and no one allowed access, but by order of the judge, sheriff, or under sherif)', except in cases of respite, when such regulations shall be relaxed by the judge. The gaoler ofiending herein, shall forfeit his office, and be imprisoned, not exceeding three months. ^ 23. 24. .t*^. t - ^. ' •: . ■ .,; ,., ,,.^.. .i , EXTORTION. 1 • •■t B. ".' 'J - l-l /• >.'»' n » '-}>' b ;- .ni 'Y- Vi ^it ■tt n , \ «.' ,1 •■•A Extortion is an abuse of public justice, consisting in the unlaw- ful taking by an officer, by colour of his ofice, of any money or thing of value, where either none at all is due to him, or not so much is due, or before any is due. Co, Lit. 368. 10 Rep, 102. i V H\ ^ ■ ^^l 106 ^'n4'-^ ^fu^tim. ^^"^ Thb offence, it has been justly observed, may be, in lome case», considered more odious than roberry ; because U carries with it an appearance of truth, and is often accompanied with perjury, by the breach of an oath of office. The punishment for this offence at common law is by fine and imprisonment, and also by a removal from the office, in the execution of which it was committed. And there is a further additional punishment by the statute ofWestmin^* Kter 1. (3 Ed. I.e. 26.) by which any sjieriff, or other king's officer, who shall take any reward to do his office, shall yield twice an much, and shall be punished at the king's pleasure ; under which statute an action lies also to recover this double value. 3 Com. Dig. 323. But justices of the peace, whose office was instituted after the act, are bound by their oath of office to take nothing for the execution of their office but of the king, and fees accustomed, and costs limited by statute. And generally no public officer can take any other fees or rewards than those given him by statute, or such as have been anciently and accustomably taken, without being guilty of extortion. Dalt. c. 41. It is extortion in a gaoler to obtain money from his prisoner, by colour of his office. R. v. Broughton, Trent. P, C. 111. in a coroner to refuse taking an inquest till his fees are paid, 3 Inst. 149. ; or in an under sheriff to obtain his fees by refusing to ex- ecute process till they are paid, or to take a bond for his fee, before execution is sued out. 1 Salk. 330. It is also extortion in a mil- ler or ferryman to take more toll than is due by custom. M. v. Burdetty 1 Ld. Ray, 149. It is also an indictable offence to per- suade another to extort money from a person, whereby money was actually extorted from him. R. v. Tracy, 3 Salk. 192. ■sr ''jK\i.:A'il- I' Indictment against a Constable for Extortion. ^n Home District, > The jur irs for our lord the King upon their oath to wit. > preseiu, that J. S. late of the township of- ■■ in the county of- in the home district, yeoman, on the ■ ■ ■- day of in the — — year of the reign of our sovereign lord VVilUam the fourth, then being one of the constables of the said township, at the township aforesaid, in the county aforesaid, did take and arrest one J. N. by colour of a certain warrant, com- monly called a bench warrant, which he the said J. S. then and there alleged to be in his possession, and that he the said J. S. afterwards, and whilst the ^aid J. N. so remained in his custody as aforesaid, to wit, on the day and year aforesaid, at the township aforesaid, in the county and district aforesaid, unlawfully, cor- ruptly, deceitfully, extorsively, and by colour of his said office, did extort, receive and take, of and from the said J. N. the sum of Jfaivu antr !ffAuvkft». 167 (.1%, a • ■ ai and for a fee due to him the said J. S. as such constable as aforesaid, for the obtaining and discharging of the said war- rant, as be the said J. S. then and tliere alleged. Whereas, in truth and in fact, no fee whatever was then due from the said J. N. to the said J. S. as such constable as aforesaid, in that behalf; in contempt of our said lord the King, and his laws, to the evil and pernicious example of all others in the like case offending, and against the peace of our lord the King, his crown and dignity. FAIRS AND MARKETS. By Stat. 2 Edw. 3. c. 15. It shall be commanded to all sheriffs, where need shall require, to publish within liberties and without, that all lords which have fairs shall hold the same for the time that they ought, and no longer. And that every lord at the beginning of his fair shall publish how long the fair shall endure, that mer- chants shall not be at the same fairs over the time so published, upon pain to be grievously pv *shed towards the king; nor the lords shall not hold them over th due time, upon pain to seize the fairs into the king's hand3 till r.iey have made fine ; after it be found that the lords held the fairs longer than they ought, or that the merchants have sitten above the time published. By litat. 5, Edw» 3. c. 5. The merchants after the time published shall close their booths and stalls, without putting any merchan- dize to sell there ; and if it be (bund that any merchant sell mer- chandize at the said fairs alter the time, such merchant shall forfeit 4o the king the double value of that which is sold ; and every man that will sue for the king shall be received, and have the fourth part of that which is lost at his suit. By Stat. 27. Hen. 6. c. 6, All fairs and markets on the principal feasts and Sundayst and Good Friday f shall cease from shewing of goods (necessary victuals except) upon pain of forfeiture of the goods to the lords of the franchise, the four Sundays in harvest only except. Provided thatthis ordinance shall endure to the next parliament, and so forth, except in the said parliament a reasonable cause be shewed, for the which it shall seem not expedient that the aforesaid ordinance shall endure. '^ 2. By Stat. 17. Edtv. 4. c. 2. — made perpetual by 1. Ric, 3. c. 6. No steward, bailiff, nor other minister of courts of pie-powder, shall hold plea upon any action, unless the plaintiff or his attorney, in the presence of the defendant, swear that the contract or other feat contained in the declaration was made or committed within the $iir, and within the time of the fair, and within the Jurisdiction of the same ; and the defendnut shall not be concluded, but shall plead 168 ? 1*, , ^:ffMWVt* - • « '» =i*^ ■ m to tbe action, or in abatement, that the contract, trespass or other teat contained in euch declaration, was not committed nor done within the lirfle of the fair and jurisdiction of the same, but out of tiie time of the fair, or at other places. And if it be so tried, or the plaintiiTs or their atturnies refuse to make the oaths aforesaid, the defendants shall be dismissed, the plaintiff to take his advantage at common law. And every steward, or other minister holding any of the said courts, that doth the contrary, shall forfeit 100«. the one half to the king, and the other half to' him that will pursue his ac- tion upou this statute in his own ii«me. Form of a pciilionfor a charter to hold a fair. To Ilia Excellency Sir John Colh^rne, K. C. B. Lieutenant Go- , vernor of the Froirincc of Upper Canada ^ and Major General com- manding Jlis Majesty''$ Forces therciut ^c. J^'c. The petition of the undersigned inhabitants and freeholders of the district of — — Humbly Sheweth, ' = ' ' That from the increase in population, and in the cultivation and improvement of lands in this district, your petitioners conceive that the establishment of a public fair for the sale of goods, wares and merchandize, live stock and agricultural produce, would be productive of great advantage to the inhabitants of this district ; and from its central situation, your petitioners humbly submit, that the village of in the township of in the said district, would be the most desirable place for its establishment. Your petitioners therefore, most humbly pray, that your Excellency will be pleased, in his Majesty's name, to bestow upon the inhabitants of the said district, a charter for holding two fairs in each year, for the sale of such goods, wares and merchandizes, live stock and agricultural produce, as aforesaid, at the said village of — — on the first Wednesday in the months of and — — and to con- tinue until the Saturday following, inclusive, under and subject to the payment and observance of such rates, tolls and regulations, as his Majesty's justices of the peace, in general quarter sessions as- sembled, shall from time to time think proper to impose, make and require ; and your petitioners as in duty bound will ever pray, False Pretences. — See "Cheats," FELONY. Felony, in its general sense, comprises every species of crime which occasioned, at common law, the forfeiture of lands or goods. 4 Bl. Com, p. 94. ; and by the common law is against the life '» •>!;>' T-) ;•!'.' Jftntt Witis^nu, $ct* 169 * - of a man— -as murder, manslaughter, felo del se, Ssb. ; agatolt a man's goods — as larceny and robbery ; against his habitatioo— as burglary — arson ; and against public justice — as breach qf prison. 3 Inst. 31 ; and by statute — as forgery, &c. .;""/V' Before the reign of JEf. 1. felonies were punished with pecuniary fines: for he was the first who, about the year 1108, ordered felons to be hanged. Since his reign, the judgment for felony continued the same by the common law, unless the offender was allowed to pray the benefit of clergy. 4 InsL 124. But this custom has been recently abolished by statute 3 W, 4. e. 4. — by which statute, the particular crimes which, for their enormity, ought to be punished with death, are expressly mentioned ; aikl all other felonies shall be punished by banishment, or transporta- tion, or by imprisonment with hard labour. — See Jurthtr on thu subjectt title "Punishment." IQ all felonies, the offender forfeits to the King all his good« and ciiattels, absolutely, and the profits of all his freehold estatei, for life, and for a year and a day after his death. 1 Inst, 391. 'r>!:*"rif;'' f' an un-^i'fj imi «»H»i FENCE VIEWERS. Bt statute 33 G. 3. c. 2. ^ 5. not less than two, nor more than six — (and by the 11 G. 4. c. 7. not more than thirty) persons shall be chosen at the annual town meeting, to serve the office of overseer of the highways, and fence viewers; and are required^ upon receiving proper notice, to view and determine upon the height and sufficiency of fences, conformable to any resolutions to be agreed upon at such town meetings, rnjvl \^n' rn ii,v.:»?c yi^ -,,.. .I-..::. ^ -- ^ ■- FERRIES. ' ^''" '' '"" "''' -" By Statute 37 G. 3. c. 10. Justices in sessions are empowered to make such rules and regulations as shall appear necessary, at fer- ries, and to establish rates and fees to be taken thereat, a list ort table of which rules and regulations, rates and fees, shall bes(?i^ yp' in some conspicuous place at such ferries, and any person having charge of a ferry, convicted before any one justice, of demanding^ or receiving any higher or greater rate or fee, or of any breach of the rules or regulations, shall forfeit 20s. to be recover* J before any one justice, and levied by distress and sale, one-half to the informer, and the other to (he district. See general form of " ConDtc^ron," &:c. FINES. -r'-f By Statute 11 G. 4. c. 1. it is enacted, thai in all cases in which, by the criminal law of England, the whole or any part of any fine t70 :fU$p $ct 4\ or penalty imposed, for the punishment of any offeuce, is in any mahner appropriated for the support of the poor, or to any paro- chial or other purpose, inapplicable to the existing state of the province, such fine or penalty, or such part thereof, as shall be so appropriated, shall be paid, when received, to the treasurer of the district, for the use of the district, and to be accounted for in the same manner as assessments. • ' ' ' ' • '•'' " iiiZl FIRE. I By Statute 32 €r. 3. c, 5, justices in quarter sessions are empow- ered to make such orders and regulations for the prevention of accidental fires, as to them shall seem meet and necessary, and to appoint firemen or other officers, for the purpose of extinguishing the same, and to mak'.2 such orders and regulations as to them shall seem fit or necessary, in any town or place where there may be forty storehouses, within half a mile square. By statute 7 G. 4. c. 8. it is Enacted, that so soon as one or more fire companies shall be established in any town where there is a police, it shall be lawful for the justices in sessions, being satisfied with the efficiency of such persons, and accepting their enrollment, to direct the clerk of the peace to grant to each member of such corps or company, a certiiicate of enrollment, which shall exempt him from militia duty, serving as juryman or constable, and from all other parish or town offices. ^ 2. Justices m ^e^iions may, upon complaint made of neglect of duty, dischar'^e .%r individual of such company, and in case of any breach of tje t gulations of the said company, upon conviction, to strike ofT his .jame from th'- list, and from thence forward such certificate shall ave no efi*ect. ■■■>¥■ FIREWORKS. Bv Statute 9 ^10 W. c. 7. ^ 1. making or selling, or throwing ^rework! from any house into any public street, or road, shall bo adjudged a common nuisance ; and by <§> 2. Any person selling fireworks, or implements for making the same, shall, upon convic- tion before one justice, on oath of two witnesses, forfeit £5. half to the poor, and half to the prosecutor, to be levied by distress; and any person permitting same to be cast or thrown from hh liouse into any public street or road, shall forfeit 20**. ^ 2. And any person who shall cast or fire, or aid in caiting or firing any, gbail forfeit 20^. ; and if not immediately paid i^liall l>e committed tu the house of correction, to be kept to hard U^^our, not exceeding one month. ^3. jfmtvnf ^t. 171 );«',* n; t Information for telling Firtworkt, (Toonb.) (!!.»i'>.; i(t Home District, ) Be it remembered, that on the ' day of to wif. i in the year of our Lord 18 — at — — iu the home district. A. B. of kc. gentleman, cometU before roe J. C* esq. one of his Majesty's justices of the peace, and giveth me, the said justice to understand and be informed, that C. D. of— -~- shopkeeper, at his shop in — — on the day of last, un- lawfully, and against the form of the statute in that case made and provided, did utter and sell to one E. P. certain squibs, crackers, rockets and other fireworks, to wit, [here state the particular fire' worlds] whereby the said C. D. by virtue of the said statute, hatb fur his said offence, forfeited the sum of jC5. therefore the said A. B. prayeth the judgment of me, the said justice, in the premises* and that he may have one-half of the said forfeiture. Kxhibtted before me. IVie like for throwing Fireicorks. (Toone.) Home District, > That C. D. late of in the district, to wit. > labourer, at the town of in the said iJis- Irict, in the public street and highway, there did unlawfully throw, cast and fire, certain fireworks, to wit, (squibs, &tc.) against the form of the statute in that case made and provided, whereby and by force of the statute, the said C. D. hath for his said offence for- feited the sum of 20s. wherefore he prayeth &,c. [as before]. [The above Informations should not be upon oath, but at the heanng the facts must be proved on oath by two witnesses at leabt.] See general form of '* Conviction" fyc. - * .» . s FISHERY.— r^J^*^^; By Statute 3 fV. 4. c. 30. entitled, ♦ an act to protect the white fish fisheries, in the straits or rivers Niagara, Detroit, and Saint Clair, in this province,' a penalty of £l£5. is imposed upon any person using any seine or net for the taking of white fish, in any of the above waters, of a greater length than 50 fathoms. <^ 2. Also a penalty of i^50. on persons fishing on Sunday. ^ 3. And a penalty of £125. for attempting to divert the natural progress or running of the white fish, by shingling or other device ; or im- prisonment, not exceeding three months. <^ 4. Fishing in front of lands of another individual, (except in the channel) subject to a penalty of £50. ^ 6. The above penalties to be recovered by action of debt, witii costs of suit, before any court of competent jurisdiction ; one moiely to the informt' r, and the other to the pro- vince. I >i h'' ^72 r,ii n: iPlouir* ^ 1 : ,-t f t^<^$ Ml ■%) hnu-ii, FLOUR. > ia,' f -V' ^ 1 Br Statute 41 O, 8. c. 7. it shall be lawful for the lieutenant governor to appoint one or more inspectors, at uuch places as he shall deem proper, who shall take the following oath : [but the act ^does not my before whom it shall he taken.'] * I do sincerely swear, that 1 will faithfully and impartially, and according to the best of my skill and understanding, execute the cfHce and duty of an inspector or examiner of flour, or pot and pearl asl.cs, (as the case may be) according to the true intent and meaning of an act of this province, entitled, '*an act to authorise the governor, lieutenant governor, or person administering the government, to appoint .iispectors of flour, pot and pearl ashes, within this province/' So help me, God.' Sec. 1. 2. And it shall be lawful for any person having flour, Sec, to ^at! upon the inspector to examine the same, who is hereby required io do so, by boring the head of the cask, and piercing througl the flour with the usual instrument; and the said inspec- tor S'tctH kdare the quality of the same, by marking it as superfine, fine, or in'ddiing, and if unsound or soured : and in case of pot ap«l ,.jarl ashes, to unpack the cask and repack the same, and mark t'se 'ask as first, second, or third sort, or merely salts, as the case niK'- ^"^' '^3. And for every barrel of flour so examined, the inspector shall have three ptiice ; and for every cask of pot and pearl ashes, one shilling. By 60 G. 3. c. 5. every miller shall provide brands or marking irons, for the purpose of branding and marking flour packed in barrels, on which shall be expressed the name of the mill, with the words Upper Canada, the net weight and tare in figures, and also the words superfine, fine, or fine middlings. <§. 2. That all wheat flour shall, by such miller, be made merchantable and of due fine- ness, and shall be honestly and well packed, in good and sufficient casks, made of staves well seasoned, and bound with ten hoops, and the tare marked on the said cask, whh the nett flour, each cask to contain 19G lbs. § 3. That on any miller being required to make flour intended to be of the first quality, on each cask shall be branded, superfine ; second quality, the word fine ; third quality, the words fine middlings ; under i-e penalty of 10s, for every cask. ^ 4. All flour for sale, packed and branded as a^ "esaid, shall, at the option of the purchaser, be inspected, and the expense paid equally. *^ 5. Putting a false or wrong tare on any cask of flour, subject to 10s. penalty. ^ G. Counteifciling brand marks, or put- ting into an empty branded cask, flour of another quality, subject to a penalty of 20s. for cv«!ry ofl'cncc. ^ 7. Inspectors shall weigh iFotectilr iSntvs nnn mttninn. ns any suspected cask of flour, and if not weight, brand on the head the word light, and for every cask so branded, the manufacturer shall pay 10^. <^ 8. Inspector to brand the initials of his name oii all casks of flour inspected by him. ^ 9. And tlic real quality of the flour, if not before rightly branded. <^ 10. Inspectors not to deal in flour under penalty of forfeiting their commission. <^ 11. Fines recoverable with costs, before any one justice, who shall summon the oflender, and upon his appearance or default, pro- ceed to judgment; one moiety of such fines to the use of the pro- vint'e, and the other to the informer. N. B. But the a Jt does not point out the mode in which the fine» shall be levied, and it is therefore doubtful whether the magistrate would be justified in issuing a warrant of distress, if the fines should not be paid. , .y -_ . ,.; '■' FOUCIBLE ENTRY AND DETAINER. '..'^. , ;.. .M ^^«' " « Forcible Entry. ^^ ,, . ,, ,i^-,.Md> A FORCIBLE ENTRY is committed by violently taking possession of lands and tenements, with menaces force and arms, and with- out the authority of the law. 4 BL Com. 148. And even if a man have a good right to the land, and enter forcibly, he may bs indicted. Dnlt^ (Ed. 1727^ c. 129. A single person may com- mit a forcible entry as well as a number of persons. 1 Haw. c. 64. <^ 8. 22. 29. A forcible entry is mnde with a strong hand, with unusual weapons ; an unusual number of servants or attendants ; or with menace of life or limb : or, by breaking open the doors of a house, wlicther any person be in it at the time or not; and though a man enter peaceably, yet if he turn the party out of possession by threats, or violence — this also amounts to a forcible entry. 1 Haw, c. 64. >^n 26. But merely drawing a laich, and entering a house; or opening the window or door with a key; or entering by an open window — do not constitute a forcible entry, Ibid. ^ ,. -> What is a Forcible Detainer. , ,., . , A forcible detainer, is where a person wiio enters peaceably, though unlawfull}', detains possession by force ; and the same cir- cumstances of violence or terror which makes an entry forcible, will also constitute a forcible detainer. Therefore, whoever, after an unlawfully entry, keeps in the house an unusual number of persons, or weapons, or threatens to do some bodily hurt to the former possessor, is guilty of a forcible detainer. So, if a man shuts the door aojainst a justice of the peace, coming to vi<;w the < II IT'S'.'.. 1 74 iTorcf Ulr Sntvn atitr fdrtafnt r* ufU ru >1 I force, and obstinately refuses to let him come in; so, a lessee, who, aAer the end of his term, keeps arms in his house to oppose the entry of the lessor, is guilt}' of a forcible detainer ; and the same with regard to a lessee at will, after the will is determined ; or of a mortgagor, after the mortgage is forfeited. 1 Haw. c, 64. ^ 30. 4 Com. Dig> 201. But the mere refusal to go out of a house, and col' .u'm'^ therein in despite of another, does not amount to a forc'i <;i 'Uainer. 1 Haw. c. 64. "^ 30. Therefore, if a lessee at will the determination of his tenancy) merely denies possessio.i to ttx ssur, or even shuts the door against the lesfor when he wonld enter — lliis is not a forcible detainer. Cro. Cur, 486. And a man who breaks open the doors of his own dwelling-house, forcibly detained by one who has the bare custody of it, is not guilty of a forcible entry or detainer. 1 Haw. c. 64. ^32. . , , Of the Remedy. - i^on my^ At common law, a man disseised of any lands or tenements, if he could not prevail by fair means, might lawfully regain the possession thereof by force. 1 Haw. 140. But this indulgence of the common law having been found, by experience, to be very prejudicial to the public peace, it was thought necessary, by many severe laws, to restrain all persons from the use of such violent methods of doing themselves justice. lb. 141. Accordingly, by 5 Ric. 2. statute 1. c* 8. None shall make entry into lands but where entry is given by law, and in such case not with strong hand, nor with multitude of people, but only in lawful and easy mamier. And if any do the contrary, and thereof be convicted, he shall be punished by imprisonment and ransomed at the king\ will. By 15 Ric. 2. c. 2. At all times that forcible entries be made, and complaint thereof cometh to justices of peace, or any of them, the same justices or justice shall take suflicient power of the county, and go to the place where such force is made ; and if they find any that hold such place forcibly, they shall be taken and put in the next gaol, there to abide convict by the record of the justices or justice, till they have made fine and ransom to the king. And all they of the county, as well the shcrilfas others, shall attend upon the justices, to assist them to arrest such offenders, upon pain of imprisonment, and to make fine to the king. By 8 H. 6. r. 9. Where any doth make forcible entry into lands, tenements, or other possessions, or them hold forcibly, after complaint made to the justices of peace, or one of them, by the party grieved, the justices or justice, within a convenable time, shall cause the statute duly to be executed at the costs of the parties grieved. ^ 2. iporccnir isnttfi um mtutn^v. 175 Though such persons making such entries be present, or Toided before tlie coming of the justices ; nevertheless, the justices, in some town next the tenement, or in other convenient place, shall have power to enquire by the people of the county, as well of them that make such forcible entries into lands and tenements, as of them which the same hold with force. And if it be found before them, that any doth contrary to this statute, the justices shall cause the tenements so entered or holden to be re-seised, and put the party so put out in full possession. ^ 3. When the justices make such inquiries, they shall cause their precepts to be directed to the sheriff, commanding him to cause to come before thsm sufficient and indifferent persons dwelling next about the lands so entered, to inquire of such entries, whereof every man impannelled shall have lands of the yearly value of 40 >. And the sheriffs shall return issues upon them at the day of the first precept returnable 20s. ; and at the second day 40s. ; at the third time 100s. ; and every day after, the double. And if any sheriff or bailiff make not execution duly of the said precepts, he shall forfeit to the King £20. and moreover make fine and ran- som. <^ 4. By 31 Eliz. c. 1.1. No restitution upon any indictment of for- cible entry, or holding with force, shall be made, if the persons incticted had the occupation, or been in quiet possession, three years next before the day of such indictment found, and their estate therein not ended, which the party indicted may p.iege for stay of restitution ; and if the other traverse the same, and the alle- gation be found against the party indicted, he shall pay costs. § 3. By 21 Jac. 1. c. 15. a justice of the peace may also give like restitution of possession to tenants, for term of years. If the of- fenders, being in the house; make no resistance, then the justice can neither arrest or remove them on his view, and the party can- not be arrested unless i\ie force be found by the inquiry of a jury, and if such forcible entry and detainer be found, then the justice shall cause the lands to be restored. Dalt, 1. 44. Although one justice alone may proceed in such cases, yet it may be advisable for him, if the time for viewing the force will suffer it, to take to his assistance one or two more justices. Burn's^ J. 179. . ,jj iff A conviction by a justice for a forcible entry, on view, must set a fine upon the defendant, otherwise the court of king's bench will discharge him from a commitment on such conviction, by Jiaheas corpus, R. v. Elwelly Sir. 794. Ld. 72. 1514. If a fine be set, the conviction cannot be quashed on motion, but the defendant must bring his writ of error; but if no fine be set, it may then be quashed on motion. jR, v. Lay ion. 2 Salk\450. i 176 iTorrfUlr Sntr)} nnii sprtafner. 1 ^^^p^ n i^i'' *' ' ^m l^it MM [ iJaHRJi 1 ■H ^' HestUution. , .7 , i Must be awarded by the same justices before wh< m the inquest vras found. If a restitution shnll appear to have been illegally awarded or executed, the court of king's bench will set it aside, and grant a re-restitution to the defendant. 1 Haw. c. 64. <^ 63, 64, 65. The sheriff in executing the writ, of restitution may raise tSic power of the county to assist, but the justices may, if they think proper, make restitution in person. A justice, or the sheriff rooy break open a house to make restitution ; and if the possession be avoided by a fresh force, the party may have a second writ of res- titution without a new requisition, if iipplied for within a reason- able time. 1 Haw. c. 64. >^ 49, 52. 4 Com. Dig. 204. ' '• How punishable by Indictment. ^' -"j' A forcible entry or detainer, is also at common law, punishable by indictment ; and if three or more be concerned, it is also a riot, and may be proceeded against accordingly. Halt. c. 44. fii.tii -.)•-» -^ Record of a Forcible Detainer upon ricw, before three Justices. (13UUN.) [Or it may bo before one Justice only.] Home District, ) Be it remembered, that on the day of — — to wit. i in the — «— year of the reign of our sovereign lord — — at — — in the (! strict aforesaid, complained to us — — and — — — tsquires, three of the justices of our said lord the kmg, assigned to keep the peace in the said district, and also to hear and determine divera felonies, trespasses, and other misde- meanors, in the said district committed, that and late of — — in the said district, yeomen, into the messuage of her the said ■ situate within the township of in the district afore- said, did enter, and her the said of the messuage aforesaid, whereof the said ——at the time of the entry aforesaid, was seised, as of the freehold of her the said for the term of her life, un- lawfully ejected, expelled and removed, and the said messuage from her the said ■ unlawfully, with strong hand and armed power, do yet hold and from her detain, against the form of the statute ia such case made apd provided ; whereupon the said • then to wit, on the said — — day of—— in the year aforesaid, at the city of Toronto, in the district aforesaid, prayeth of us so as afore- said, being justices, to her in this behalf, that a due remedy be provided, according to the form of the statute aforesaid ; which complaint and prayer by us the aforesaid justices being heard, we Jfovtihlt ^ntvjst ^n^ £5ctrt(wri% n? \he aforesaid ——justices, aforesaid, to llie messuages (iforesaiJ, persoinlly have come, and do then and there find and set; the afore- said — — . the aforesaid messuage, with fori'o and arms unlawfully, with strong hand and urmed power detaining, against the form of the Siatute in such case made and provided, according as she the said ■- hath so as aforesaid unto us complained ; therefore it is considered by us, the aforesaid justices, that the aforesaid of the detaining aforesaid, with strong hand, by our own proper view, then and there as is aforesaid had, arc convicted, and every of them is convicted, according to the form of the statute aforesaid, whereupon we, the justices aforesaid, upon every of the aforesaid do set and impose severally, a flne of of good and lawful money of this province, to he ()aid by them and tvery of them, severally, to our said sovereij^n lord the kiiitr ^'^i* the said offences, and do cause them and every of thorn tlici icre to bt; arrested, and the said i and being com ' every of them being convicted, upon our own proper vir tiaiu- ing aforesaid with strong hand, as is aforesaid by n a resaid Justices are committed, and every of ihcm is committed to ihe com- mon gaol of our said lord the kii:g, at Toronto aforesaid, in the district aforesaid, being the next gaol to the messuage aforesaid, there to abide respectively, until they shall have paid their several fines respectively, to our said lord the king, for their respective of- fences aforesaid, concerning which, the premises aforesaid, we do make this our record. In witness whereof, we the said the justices aforesaid, to this record our hands and seals do set, at aforesaid, in the district aforesaid, on the day of in the year of the reign of our said sovereign lord the king. Mittimus for a Forcible Detainer ^ upon view^ hy one Justice. (BuRN.) J. C. esq. one of ihe justices of our sovereign lord the King^, assigned to keep the peace of our &;^id sovereign lord the King, in and for the home district, and ako to hear and determine di- vers felonies, trespasses and oth r misdemeanors, in the said district committed ; to the keeper of his Majesty's gaol at To- ronto, in Ihe said district, and to his deputy there, or to either of them, — greeting. Home District, ^ Whereas upon complaint this day made unto me to wit. 5 ^' ^* ^^^' one of his Majesty's justices of the peace for the _ district, by A. B. of r. , in the said district, yeoman ; I, the said justice, did immediately go to the dwelling- house of the said A. B. at , aforesaid, and there found upon mine own view, C. D. late of labourer, E. F. late of the M Ci '4 IMAGE EVALUATION TEST TARGET (MT-3) -^ 1.0 I.I 1.25 lu lii 12.2 Ul 110 ■tMU - 6" -► ^^ *>!^ > 7 Photographic Sciences Corporation %^ V \\ ^. 23 WIST MAIN STRUT WfSSTM.N.V. USM (716) t72-4S03 6^ 4r — "w^^Site.,.^?"*** 178 iForcitilc fBnivn nnH l^tufiKir. same place, labourer, and G. H. late of , — carpenter, forcibly with strong hand and armed power holding the said house, against the peace of our said lord the King, and against the form of tiic statute in such case made and provided ; tiierefore 1 send you, by the bringers hereof, the bodies of the said C. D. E. F. and G. H. convicted of the said forcibly holding, by mine own view, testi- mony and record; commanding you, in his Majesty's name, to receive them into your said gaol, and there safely to keep them and every of them, respectively, until they shall have respectively paid the several sums of £!0. of good and lawful money of Great Britain, to our said sovereign lord the King, which I have set and imposed upon every of them separately, for a fine and ransom for their said trespasses, respectively. Herein fail you riot, on the pain that will ensue thereon. Given at — ■ aforesaid, in the home district aforesaid, under my hand and seal, the ,. , ■ day of in the . year of the reign of our said sovereign lord the King, and in the year of our Lord 183-». , . ^ . JtC. • V V .f -5" Justice's precept to Summon a Jury. (Burn.) '*ii Home District > J. C. esquire, one of the justices of our lord the to wit. 3 King assigned to keep the peac? in the said dis- trict, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said district committed : To the sheriff of the said district — greeting : On behalf of our said lord the king I command you that you cause to come before me, at . in the said district, on the — - day of ..-~i~ next ensu- ing, twenty-four sufficient and indifferent men of the neighbour- hood of . aforesaid, in the district aforesaid, every one of whom shall have lands and tenements of 40s. yearly, at the least above reprizes, to inquire upon their oath for our said lord the King of a certain entry made with a strong hand, as it is said, into one messuage of one A. B. at __ aforesaid, in the district afore- said, against the form of the statute in tha' case made and provided ; and you are to return upon every of the jurors by you in this behalf to be empannelled 208. of issues at the aforesaid day, and have you then there this precept, and this you shall in no wise omit upon the peril that thereon shall ensue. Witness the said J. C. at • in the said district, the , day of .~.~^ in the — — . year of the reign of our sovereign lord William the fourth. Juror§ Oath. You shall true inquiry and presentment make of all such things as shall come before you concerning a forcible entry [or detainer] said to have been lately committed in the dwelling house of A. B. — ■W^3«lte..^^R«^P5rs » forcibly ?i against rm of the 1 you, by ind G. H. ew, testi- name, to ;eep them speciively ^ of Great ve set and nnsom for ot, on the id, in the ._ day of 'eign lord J.G. ir lord the le said dis- trespasses To the r said lord ore me, at next ensu- neighbour- ery one of at the least id lord the is said, into strict afore- ] provided ; you in this d day, and in no wise the said J. in the the fourth. such things or detainer] ise of A. B. ipottftile fintvs nm mtuintv. no at i' . ; yon shall spare no one for favor or affection, nor grieve any one for hatred or ill will, but proceed herein according to the best of your knowledge, and according to the evidence that shall be given to you. So help you God. r«6ie Ixtfttrr rr To the other Jurors. 'jfoivio^ <>r- Th6 oath that A. B. your foreman hath taken on his part, you and every of you shall truly observe and keep on your parts* So help yoti God. ^mxM y'ixii The Inquisition or finding of the Jury. (Burn.) mh'ik ' Home District, ) An inquisition for our sovereign lord the King, to wit. \ indented and taken at .. in the home dis- trict, the day of-— in the — ~ year of the reign of our sove- reign lord King William the fourth, by the oath of.. . . good and lawful men of the said district, before J. C. esq. one of the justices of our said lord the King, assigned to keep the peace for the said district, and also to hear and determine divers felonies, trespasses and other misdeeds, in the said district committed, who say updn their oath, aforesaid, that A. B. of long since law- fully and peaceably was seised in his demesne as of fee \if not freeholdt say ^possessed*'] of, and in one messuage with the appur- tenances in I ■ aforesaid, in the district aforesaid, and his said possession (or seisin) so continued, until C. D. late of &,c. £. F. of &£c. and G. H. of &£c. and other malefactors unknown, the day of now last past, with strong hand and armed power, into the messuage aforesaid with the appurtenances afore- said, did enter, and him the said A. B. thereof disseised, and with strong hand expelled, and him the said A. B. so disseised and ex- pelled from the said messuage, with the appurtenances aforesaid, from the day of until the day of the taking this inqui- sition, with like strong hand and armed power did keep outy and do yet keep out, to the great disturbance of the peace of our said lord the King, and against the form of the statute in that case made and provided. We whose names are hereunto set, being the jurors aforesaid, do upon the evidence now produced before us, find the inquisition aforesaid true. . A. B. Sec. Warrant to the Sheriff for Restitution. (Durn.) Home District, > J. C. esq. one of the justices of our sovereign to wit. ) lord the King, assigned to keep the peace in the home district, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said district committed : to the sherifTof the said home district — greeting* V hi/»* 'i.-'v: 180 iForcfi^le ^ntvn ^tixt ^ttuintv. »m! Whereas by an inquisition taken before me, the justice aforesaid, nt — — in the district aforesaid, on this present-— —day of in ihe — — year of the reign of upon the oaths of and by virtue of the statutes made and provided in cases of forcible en- try and detainer, it is found that C. D. he, into a certain, messuage &c. [as in the inquisition] as by the inquisition aforesaid more fully appeareth of record: therefore on the behalf of our said sovereign lord the King, 1 charge and command you, that taking with you the power of the district, (if it be needful) you go to the said mes- suage, and other the premises, and the same with the appurtenan- ces you cause to be re-seised, and that you cause the said A. B. to be restored and put into his full possession thereof, according as he before the entry aforesaid was seised, according to the form of the said statutes ; and this you shall in no wise omit, on the penalty thereon incumbent. Given under ray hand and seal, at ' in the said district, the day of in the year of the reign of :.■..,. .ar^l Indictment for a Forcible Entry and Detainer at Common Law, Home District, ) The jurors for our lord the King, upon their oath to wit. \ present, that J. S. late of the township of — — in the county of in the home district, gentleman, K. T. of the same township, carpenter, and L. W. of the same township, labourer, together with divers other evil disposed persons, to the number of six or more, to the jurors aforesaid unknown, on the day of in the year of the reign of our sovereign lord William the fourth, with force and arms, to wit, with pistols, swords, sticks, staves and other oiTensive weapons, at the township aforesaid, in the county and district aforesaid, into a certain barn and a certain orchard, there situate and being, and then arid there in the possession of one J. N. unlawfully, violently, forcibly, inju- riously and with a strong hand did enter^ and the said J. S. K. T. and L. W. together with the said other 1 disposed persons, to the jurors aforesaid unknown as nfore.^ , then and there, with force and arms, to wit, with pistols, swcrds, sticks, staves and other offensive weapons, unlawfully, violently, forcibly, injuriously and with a strong hand, the said i, N. from the possession of the said barn and orchard did expei, remove and put out, and the said J. N. so as aforesaid expelled, removed and put out, from the pos- session of the said barn and orchard, then and there, with fo.rce and arms, to wit, with pistols, swords, sticks, staves and other of- fensive weapons, unlawfull3-, violenti}', forcibly, injuriously {ind with a strong hand did keep out, and still do keep out, and other wrongs to the said J. N. then and there did, to the great damage JfOVHQH &ttMtt, $cc. 181 of the said J. N. and against tlie peace of our lord tlie King, his crown and dignity. a.;*^rit..,:«r.. 5iiG — — ' FOUEIGN SERVICE. ill) it r -" - -• •;, AnV engagement with a foreign state is a contempt against the prerogative, and a high misdemeanor at common law. 4 BL Com* 122. * FORESTALLING. At the common law every practice or device to enhance the price of victaals, or other necessaries of life, is held to be a misdemea- nor. 3 Inst, 196 : and forestalling, in its legal signification, anci- ently comprehended all offences of this description, including those of ingrossing^nd regrating. Ingrossing is the purchase of the Mchole of any commodity for the sake of selling it again at a high price. Regrating signifies, properly, the scraping or dressing of cloth, or other goods, in order to sell the same again. The offen- ces of forestalling, ingrossing and regrating, have been also espe- cially provided against by various statutes, from the 3 &£ 4 Ed. 6. ^. 21. downwards to the 12 G. 3. c. 71. ; by which latter statute ail the preceding statutes were repealed, leaving the ofTence only to be dealt with as it stood at common law, under which it still con- tinues an indictable offence, punishable by fine and imprisonment. Cr. C. C. 232. ^ ;.- - y;;;?,>-^ ^.,.;. ,.w. _...;,.,...! .■■•. "tr^'f i*> n Ht "^i^'-"^, FORGERY. nn» tt*; Forgery is the fraudulent making or alteration of a writing, to the prejudice of another man's right. It is a misdemeanor at com- mon law, punishable by fine, imprisonment and pillory. 4 Bl, Com* 247 : but is made felony by a variety of statutes ; and forgery is complete although no person be actu^.lly prejudiced by it.-— fVard^s case, Ld, R. 1461. Tlie following instances come under the denotnination of forgery : — making a fraudulent insertion, alteration or erasure, in any material part of a true instrument : converting a bond for JC500 into one fur X5000, by adding an 0. to the number. 1 Hcnv, c. 70. "^ 2. Altering a banker's note or bill of exchange, from JCIO to jC50. It. v. Tcague^ 2 East. P, C, 979. Altering the date of a bill, whereby payment is ac- celerated. 2 East. P, C. 853. So, if a man who is ordered to draw a will for a sick person, insert legacies in it of his own head. 3 Inst, 170. So, a man may be guilty of forgery in signing any tJ^" 102 irorfictfi^ instrument in liis own name, if lie represent himself to be some other person of the same name. Mead v. Youngs 4 T. R» 28. As to Forgery fty Statute Law. By 5 "EUz. c. 14, '^ 2. forging any false deed, charter, or writing sealed ; court roll ; or the will of any person ; or publishing any such as true, shall subject the party to double costs and damages; be set in the pillory, &:c. ; and by stat. -2 G. 2. c. 25. revived and made perpetual by 9 O. 2. c, 18. — any person forging any deed; will; bond; writing obligatory ; bill of exchange; promissory note ; indorsement or assignment thereof; or uttering same as true, shall be guilty of felony. By 24 G. 3. st. 2. c, 37. forging the superscription of a letter, to avoid the payment of postage, i& made felony. ■•• '"^ "...v .-. t.,. By 35 G. 3. c. 5, ^ 14. any person forging any memorial, &c. under the registry act, shall be subject to the pains and penalties of the 5 EHz, By 50 G. 3 c. 4. forging any foreign bill of exchange ; promissory note ; undertaking or order for payment of money ; ur uttering the same as true, is puuishablc by fine, or imprison- ment, not exceeding two years ; or other corporal punishment, not extending to life or member ; and also by banishment ; or by one ur more of said punishments, at the discretion of the court. ^ 1* And any person engraving, cutting, etching, fitc. upon any plate, any foreign bill of exchange, promissory note, undertaking or order, or any part ihercof, without authority ; or printing any such foreign bill of exchange, &.c. ; or having any such plate or device in his possession, without lawful excuse; or any impression taken from the same, shall be guilty of a misdemeanor ; and for the first offence, be imprisoned for any time not exceeding six months ; or fined ; or publicly or privately whipped ; or suffer any one or more of these punishments ; aiid for the second offence, be punished by fine, or imprisonment, not exceeding two years. ^ 5. And it shall be lawful for any one justice, on complaint upon oath that there is just cause to suspect that any person or persons have been concerned in the forging or engraving of such foreign bills, Uc, ; or have in his, her, or their custody, any such plate or device, or any impression taken therefrom, by warrant, to cause the premises of such suspected person to be searched, and to seize any tools, plates, implements or devices, found there- on ; and the person seizing shall carry the same forthwith to a justice, who shall cause the same to be secured, and produced in evidence against the party. ^ 6. Actions must be brought within three months. . ^ ,„.;.,.,..;.. ' H ^ H f Jtfi * UfifV iffvntt KvttPf $cc* 183 ■A *_.,*/ ■« .1 i»i-i Si ■. / /» » I > **«i^ FRUIT TREES. Bt 37 H. 8. c. G. ^ 4. if nny person shall maliciously bark any apple trees, pear trees, or other fruit trees, he shall forfeit to the party grieved treble damages, by action of trespass, and also £10 to the King ; and by 43 Eliz, c.l.^l, every person who shall rob any orchards or gardens, or break or cut any hedge, pales, rails or fence, or dig or pull up any fruit tree or trees, in any orch- ard, garden or elsewhere, to the intent to take and carry away the same, every auch person, his procurers and receivers, knowing the same, being thereof convicted, by confession, or oath of one wit- ness, before one justice, shall pay such damages as such justice shall appoint, for the first offence ; and in default shall be committed to the constable where the offence shall be committed, to be whipped ; and for every such offence for which the offender shall be eftsoons (afterwards) convicted, in form afore limited, the person so offend- ing shall receive the said punishment of whipping. ^ 2. And if the constable shall not by himself or some other, execute upon the offender the said punishment, the justice may commit him to the cqmmon gaol till be comply. <^ 2. .... ^yf' - FUGITIVE FELOJVS. ''^^ *" ' By Statute 37 O, 3. c. 15. if any person against whom a warrant shall be issued by the chief justice, or any other magistrate in any of his Majesty's provinces in North America, for any felony or crime of a higher nature, shall escape, and come into any part of this province, any justice of the peace where such felon shall be, may (upon due proof of the hand-writing of the magistrate issuing the warrant) endorse the same, which shall be a sufficient authority for the execution thereof, where such warrant shall be so endorsed. ^ 2. The person having such warrant, f^^st entering into recog- nizance with sufficient sureties, in not less than jC50. to indemnify the province against any expenses arising from the apprehension of such offender, and the magistrate to whom such application is made, may take such recognizance. By statute 3 W» 4. c. 7. entitled, * an act to provide for the apprehending of fugitive offenders from foreign countries, and delivering them up to justice,' it is enacted, that the governor shall have power, and he is hereby authorised at his discretion, and by and with the advice of the executive council, on requisition being made by the government of any country, or its ministers or offi- cers authorised to make the same, within the jurisdiction of which country the crimes hereinafter mentioned shall be charged to have 184 iFujiitflif ;ff$lon^. been committed, to deliver up to justice any person who may have Hed to this province, or who shall seek refuge therein, being charg- cd with murder, forgery, larceny, or other crime, comroilted with- out the jurisdiction of this province, which crimes, if committed within this province, would, by the laws thereof, be pnnishablie by death, corporal punishment, by pillory or whipping, or by con- finement nt hard labour, to the end that such person may be trans- ported out of this province, to the place where such crime shall have been charged to have been committed ; provided always, that this shall only be done upon such evidence of criminality at ac- cording to the laws of this province, would, in the opinion of the governor and of the executive council, warrant the apprehension and commitment for trial of such fugitive from justice, or person. 80 charged, if the offence had been committed within this province. ^ 2. And for preventing the escape of any person so charged, be- fore any order for his apprehension can be obtained from the governor, it shall be lawful for any judge, or for any justice of the peace, within his jurisdiction, to issue his warrant for the appre- hension, and for the commitment of the accused, until application can be made to the governor, and an order made tberenpon ; which warrant shall, nevertheless, only be granted upon such evi- dence, on oath, as shall satisfy such judge or justice, that the person nccused stands charged with some crime of the description herein- before specified, or that there is good ground to suspect him to have been guilty thereof^ ■ v . ■ , . ■ ,; . ^ -,1. • u y*ij', Whereas A. B. of ■'■ in the state of New to wit. 3 York, constable, hath this day made information and complaint upon oath, before me J. C. esq. one of his Majesty's justices of the peace for the said district, that C. D. late of Buffalo, in the said state of New York, labourer, now stands charged upon oath, in the said state of New York, to wit, at Buffalo, with hav- ing feloniously stolen, taken and carried away, at Buffalo afore- said, fifty dollars in bank notes, of the bank of the United States, the property of one £. F. and that a warrant hath been issued at Buffalo aforSsaid, for the arrest of the said C. D. for the felony aforesaid, but that the said C. D. hath on account of the said felony, fled to and come into this province, and is now residing at in tiie said home district. These are therefore to command you, in his Majesty's name, forthwith to apprehend and bring before me, or some other justice of the peace for the said district, the body of the said C. D. to be dealt with according to law. Herein fail you not. Given under my l^and and seal & f>>t 185 J. C. esq. one of his Majesty's justices of the peace in and for the home district, to the Constable of and to the Keeper of hit Majesty's gaol at Toronto. Home District, > These are to command you the said constable, to wit. i in his Majesty's name, forthwith to convey and deliver into the custody of the keeper of the said gaol, the body of C. D. late of who is charged on the oath of A. B. &c. \hert state the particalarsji and you the said keeper are hereby required to receive the said C. D. into your custody, in the said gaol, and him safely keep, to be dealt with, and until he shskll be delivered from your custody according to law. Given under my hind and seal, See. ■
  • - By Stat. 33 Hen, 8. c, 9. No person shall keep any common house, alley, or place of bowling, coyting, closh cayls, half-bowl, tennis^ dicing table, carding, or any unlawful game, then, or thereafter to be invented, on pain of 40s. a day. ^ 11 : and persons frequenting such house shall forfeit 6jr. Qd. each time. <^ 12. Justices may enter suspected houses, and arrest and imprison the keepers and persons resorting thereto, until the keeper give secu- rity no longer to keep the said Iiouse. <^ 14. 15. No apprentice, journeyman artificer, servingman, &:c. shall play at unlawful games, except at Christmas, and at their masters houses ££c. or in bis pre- sence, under penalty of 6«. 8^. each time. ^16. By 2,Gr. 2. c. 28. U proved on the oath of two witnesses before any justice, or upon his own view, that any person hath used any unlawful game, contrary to 33 H, 8. c. 9. such justice may commi$ the ofiender, unless he give security not to play in future. ^9. By 16 Car. 2. c. 7. <^ 2. If any person by auyfraudt unlawful de- vice, or ill practice, in playing at or with cards, dice tables, tennis, bowls, kittles, shovel-boards, or in or by cock*fighti. .:, horse-races, dog-matches, foot-races, or other pastimes, or by betting thereon, shall win any money, &;c. the ofiender shall forfeit treble the value, with treble costs, one moiety to the king and the other to the party grieved, if he shall sue within six months : and by ^ 3. if any per- son shall play at any of the said games, or any other pastime or game whatsoever (other tha*) with and for ready money) or shall bet on such as play, and lose above JCIOO at any one time, upon ticket or credit, or otherwise, the securities shall be void, and the winner shall forfeit treble the value, with treble costs, if sued wHhin a year; one moiety to the king and the other to the informer. im tf^famCun* By Armt c. 14. any person who shall at any time or sitting, by playing at cards, &c. or by betting, lose and pay £10. the loser tn^yi within three months, recover the same by action ; and if he shall not sue within three months, then any other person may re- cover the same, vt'ith treble value and costs ; half to the prosecutor and half to the poor. ^ 2. And if any person %h9\\ fraudulently win at cards, &c. or acquire by betting, &c. any sum of money or other valuable thing, above £\Q. and being convicted on indict- ment and information, he shall forfeit five times the value, to be recovered by the person who shall sue. % 5. Any two justices on just cause of suspicion, may cause any person to be apprehended who has no visible means of living except by gaming, and may require security for his good behaviour for twelve months, or com- mit him until such security be given. ^ 6. And any person as- saulting or challenging another, for money won by gaming, shall forfeit to the king all his goods and personal estate, and be impri- soned two years. v . Upon these statutes it has been held, that a wager above £ 1 0. on a horse race is illegal. 2 Str, 1159. 2 WiU, 309. : and a wager to any amount, on a horse race, where the race is for less than jC50. cannot be recovered ; for all such races are illegal by the 13 Gr. 3. c. 19. ^ 2. ; and if two persons play at cards from Mon- day evening to Tuesday evening, without any interruption, except for an hour or two at dinner, and one of them win a balance of 17 guineas, this is won at one sitting, within the 9 Aniit c, 14. 2. Bl, jRep, 1226. A foot race is also an illegal game. 2 Wilt. 36. — and so is cricket, so far as to invalidate a bet of more than £10. upon the players. 1 Wils. 220. By 10 & 11 W,3»c.n.^l. all lotteries are declared to be public nuisances ; and by ^ 2. No person shall expose to be play- ed, drawn or thrown at, either publicly or privately, or shall draw he. at any lottery, either by dice, lots, cards, balls, numbers or figures, or any other way, under the penalty of £500. ; one-third to the king, one-third to the poor, and one-third with double costs to the informer ; and the offenders may also be prosecuted as com- mon rogues : and every person who shall play, throw or draw, at any such lottery, shall forfeit £200. to be recovered in like man- ner. By 10 Ann c, 26. ^ 109. insurances on marriages, births, chris- tenings or service, are prohibited under the penalty of £500. By 8 G. 1. c. 2. "§ 36. every person who shall keep any office for the sale of houses, lands, he. by lottery, for the improvement of small sums of money, shall forfeit £500. ; and every person who shall be an adventurer therein shall forfeit double the sum paid. coaming. 187 By 6f. I.e. 19. ^ 4. foreign lotteriei are prohibited nndcr the penalty of JC200. By 6 G. 2. c. 35. ^ 29. if any person ihall lell or deliver any ticket belonging to such foreign lottery, he shall forfeit £200. l^y 12 Q, 2. c. 28. ^ 1. if any person shall keep any office for the sale of houses, lands, goods, or other things, by lottery, num* bers, figures, cards or dice, he shall forfeit £200. on conviction by one justice, on the oath of one witness, or on view of such justice, to be levied by distress and sale ; one-third to the informer, and, two-thirds to the poor. The games of ace of hearts, pliaraob, basset and hazard, are declared games and lotteries prohibited by this statute. ^ 2. Adventurers in such games, shall lorfeil £50 to be sued for and recovered as aforesaid. ^ 3. By 13 G, 2. c, 19. the game of passage, and all games with dice (backgammon excepted) are declared illegal, and within the 12 G, 2. c. 28. By 18 G. 2. c. 34. ^ 1. no person shall keep any house, &c. for the game of roulet, otherwise roly poly^ or any other game with cards or dice, prohibited by law, under the penalties of 12 Gf. 2. c* 28. By ^ 4. witnesses may be summoned under this act, or under the 12 Gr. 2. c. 28. to give evidence, under the penalty of £50. or imprisonment for six months, in case of default. Warrant to apprehend a G ambler ^ under 9 Ann^ e. 14. (Toonb.) To the citable of Home District, > Whereas complaint hath been duly made before to wit. 5 "^) ^' ^' ^i^d S. P. esquires, two of his Majes- ty's justices of the peace for the said district, that A. B. late of I in the said district, doth frequently use to play at in the said district, and that he hath no visible estate, nor follows any employment to maintain himself, but lives chiefly by gaming and sharping upon other people : These arc, therefore, in hit Majesty's name, to require and authorise you to apprehend the said A. B. and bring him before us, or some other of his Majesty's justices of the peace for this district, to answer what shall be ob- jected against him in that behalf, and to be dealt with according to law. Given under our hands and seals, he, f *' Commitment for want of Sureties. (Toons.) To the constable of and to the keeper of his Majesty's gaol in and for the home district. Home District, > Whereas it hath been duly proved before us, J.C. to wit. 5 ^^^^ ^* ^^' esquires, two of his Majesty's juslicefk 188 0?aol0* of the peace fur the home district, that A. B. of on the .i— — day of did play at at the houie of ut _-i. aforesaid, not having any visible estate or employment for his support and maintenance ; and he not being able to give suf- ficient security for his good behaviour for the space of twelve months, as the statute directs : These are therefore, in his Majesty's name, to require and authorise you, the said constable, to convey the said A. B. to the said gaol, and to deliver him to the keeper thereof: and you, the said keeper, are hereby required to receive the said A. B. into your custody, and him safely keep in your said gaol, until he shall give security as aforesaid. Given under our hands and seals, this — — ^ day of ">* ^ ttT' r*rf fv- ',;. GAOLS. iKI •«JJ V 1^4** The gaol is the king's, but the keeping thereof is incident to the office of sheriff. 2 Bums. J, 430. By statute 32 G. 3. c. 8. ^ 1. It is enacted that a gaol and court house shall be erected in every district throughout the pro- vince. ^ 16. Justices in Q. S. may frame such rules and regMa- tions for the gaols as they may think proper, which having been approved and signed by one of the judges shall be binding on the gaoler and prisoners. By the 50 G* 3. c, 5. until houses pf cor- rection shall be erected the common gaols 8haU^f||i#,€#tfyUlited houses of correction. -^^h y ■ By 11 G. 4. c. 3. Justices in sessions, at their fii!ig(j4i«sioM Af- ter \he passing of this act, shall assign limits to UiV'^gaoli, not exceeding 16 acres, for the debtors. By slat. 31 C. 2. c. 2. if any person shall be committed to any prison, for any criminal or supposed criminal offence, he shall not be removed thence, unless it be by habeas corpus^ or some other legal writ ; or where he is removed from one prison or place to another within the same county,. in order to his trial or discharge; or in case of sudden fire, or infection, or other necessity, on pain that the person signing any warrant for suclf removl^V ^nd the person executing the same, shall forfeit for the first offence .£100, and for the second £200 to the parly grieved. <^ 9. But on egier- geut occasions, as in the case of infections diseases, th^Bheriff or gaoler, with the advice and consent of three or more Jjus^ot, toay if they shall find it needful, provide other safe plaflQir^with the owners consent) for the removal of sick or other persons out of the usual gaols. 19 C 2. c. 4. ^ 2. The gaoler shfdl not put, keep or lodge, prisoners for debt and felons together in one room or chamber, on pain of forfeiting his office and treble damages to the parly grieved. 22 ^ 23 C. 2. c. 20. "§13. **- einoUVf ^r* 109 • ( By the 3 H. 7. c. 3. Tiioae that have the custody ofgaoU muit certify the names of nil priioners to the justices of gaol delivery, in order to their trial or discharge, on pain of £5, GAOLER. ' * t i I, Dy the 32 G. 3. c. 8. ^14. the sheriff shall have the power to appoint, remove and discharge the gaoler. ^ 15. any gaoler know- ingly permitting an}' spirituous liquors or strong waters to be used in the gaol, or brought into the same, except by the order of a physician, shall forfeit JC20. <^ 17. and the justices shall fix a year- ly salary to be paid to the gaoler in lieu of all fees. And if th^ gaoler keep the prisoner more strictly than he ought of right, whereof the prisoner dieth, this is felony in the gaoler by the com- mon law ; and this is the cause, that if a prisoner die in gaol the coroMer ought to hold an inquest. 3. Inst. 91. ' .Fm' the treatment of prisoners after sentence, see title "ExK- GRAND JVRYJ ^■'•>" ' i>y^^i^¥' uu* ."/iq.Uiifc TTjfi,., lT^ltdi||tl|en Ilid down in general terms, by some of the greatest lawyeH^ dSa^lfife- grand jury ought only to hear the evidence for lb* King-S^lMft'is to say, on the side of the prosecution. 2 Halc^ 1 57. But others have received this position with some qualifications. (4 Bl. Com. 303.) as indeed it ought to be; for the inquest are sworn to preserit the truth, and nothing but the truth ; and it may so happen that they may not be able to elicit truth from the wit- nesses on the part of the prosecution only; and they may actually be convinced of that circumstance. The true intention seems to be this, \\%,'^-prma facie the grand jury have no concern with any testimony but that which is regularly offered to ihem with the bill df indictment, on the back of which the names of the wit- nessef are written ; their duty being merely to inquire whether there be sufficient ground for putting the accused party on his trial before another jury of a different description. If nothing ambiguous or equivocal appear on this testimony, they certainly ought notM seek any further; but if their minds be not satisfied of the truths so far as is necessary for their preliminary inquiry, they are. 9m and after the 5th April, in this and every ensuing year, take out n license, for which license there shall be paid the following sums : For every man traveller on foot, £5 ; for every horse,. ass, or mule, or other beast, bearing or drawing burthen, an additional j£5 ; for every man sailing with a decked vessel, trading and exposing for sale, goods, wares and merchandizes, on board, or from the same, ^20; for every man trading with a boat or other craft, and exposing for sale goods, wares and merchandize, for each boat or craft,- ^20. By ^ 2. any justice of the peace, collector, deputy collector, constable or pence officer, may seize and detain any such hawker, &c. who shall be found trading without a license, or be- ing found trading, shall neglect or refuse to produce a license according to this act, after being required so to do, in order to his being carried before three or more justices, nearest to the place where such offence shall be committed, who are thereby required, either upon the confession of the party o/lending, or due proof by witniess or witnesses, other than the informer, upon oath, that the person so brought before them had so traded as aforesaid, without a license ; and in case no such license shall be produced, before such justices, the said justices, by warrant under, their hands and seals, directed to a constable or other peace officer, shall cause a sum not exceeding i220. nor less than £5. with reasonable cotts, to be forthwith levied, by distress and sale of the goods, wares and merchandize of snch offender, or of the goods with which such of- f«nder shall be found trading, and for want of sufficient distress, the j^AimirtiQ iinti ^elvltriit. l9o offender shall be committed to the neoiest gaol pf the distrid, for a time not exceeding six months, nor less than one month. '^ 5. One moiety of all pr rallies under this act to go to the King for the use of the proviieO' nd be paid to the receiver general, and the other moiety to the i ^utmer. By au antecedent statute, 56 G. 3. c. 34. <^ 2. British born sub- jects, or subjects by naturalization, or by conquest, selling leather, hollow ware, farming utensils, or any printed papers publisiied by authority, they being the growth, produce, or manufacture of ihii province ; and persons who are the real makers of uny goods, warei or merchandize, of the manufacture of this province, or his, her, or clieir children, apprenticeii, agents or servants ; as also tinkerts, coopv'rs, glaziers, harness menders, or any other person usually trading in mending kettles, tubs, household goods or harness ; and hucksters, or persons having stalls or stands in the markets, and exposing to sale fish, fruit, victuals, or goods, wares and merchandize, in such stall or stands, being liritish subjects, and complying with the rules aud regulations respecting such stalls—- are all exempt from the hawker's license duly. By <^ 4. such licenses shall be granted by the lieutenant governor of the province; and for every such license, there shall be paid by the person applying fQr the same, 3s. 9d. to the collector for issuing the same. *^ 5. The collector, before he enter upon liiii offipe, shall take and subs'^ribe the following oath, before miy two justices in the district where such collector shall reside, to be Hied with the clerk of the peace : ,'i- ] .nntt .*«« im I, A. B. do swear that 1 will well and truly execute, dd and per- form, the duty of collector of his Majesty's revenue arising on liceiues to hawkers, pedlers, and petty chapmen, and otiicr trading persons, as described by an act passed in the fifty-sixth year of his Majesty's reign, entitled, '* an act for granting to his Majesty duties on licenses to hawkers, pedlers, and petty chapmen, and other trading persous therein mentioned," and will duly and im* partially superintend the collection thereof, according to the best of my skill and knowledge ; and in all cases of fraud, or suspicion of frauds that shall come to my knowledge, I will shew no person favor or affection, nor will I aggrieve any person frotn hatred or ill will ; and that I will in all cases faithfully do, execute and per- form, to the best of my skill and knowledge, all and every the duties imposed upon me by the before mentioned act. So help me God. Sec. 6. Every collector shall give security for the due perform- ance of his oflke, himself in £400, and two sureties in £200 each. Sec. 10. Suits for penalties must be commenced within t.volvn months. Sec. 11. At^d if any person summoned as a witness shall N i !l7 'i li- 'T 1^ :i 194 mnis^^tvu ^vcn ^tntvu. neglect or refuse to appear, without reasonable excuse^ he ihatl forfeit £10, with costs, to be recovered as hereinbelbre directed, and for want of distress be committed for any time not elcedi^ng two months, nor less than one month. Sec. 12. One moiety df all penalties to go to the king for the use of the province, attd to be paid to the receiver general, and the other moiety to the ififtfrmer. ' Sec. 13. Actions against any persons under this act to be commen- ced within six months. Sec. 14. This act not to autliorite any person licensed as aforesaid to sell any goods which shall not be the bona fide property of the person so licensed. Sec. Ifi^'No license necessary for the sale of wheat, flour, pease, beans, oats, barley, indian corn and meal, rye, staves and heading^, oak, nine and fir timber, and other lumber, pot and pearl asbe^, fdreiind skins (not dressed) beef, (fresh) sheep, swine, and live et(ttle» cJiecse, butter, and all other articles of provision. . - mii no iu) ^cw gini »is tiia aoeaq yt?j lu Jit/orwaft'oii.— (AiicHBOii>,)>i J-' — -— ku diuI Home district ) Be it remembered that on the —• — day of^— to wit. 3 in the year of our Lord ^ at ■ ' ' ■ in the said district, A. B. of in the district aforesaid, yeoman, who as well for our sovereign lord the king as for himself doth prosecute in this behalf, personally cometh before J. P. esq. R. S. esq. and T. U. esq. three of his Majesty's justices of the peace "^fbrtlie laid district, and residing nearest to the place where the offence tier^in- after mentioned was committed, and as well for diir said lQr To the Constable of in the said district, and to wit. > to all other Constables in and for the said district. Whereas C. D. late of in the said district, hawker, was on this day (or on the — — day of—— instant) duly convicted be- fore us ' three of his Majesty's justices of the peace for the said district, for that he the said C. D. [Ike. stating tht offence us in (he conviction"] against the form of the statute in that case made and provided ; and we the said •— — (hereupon adjudged the said C. D. for his said offence, to [S^c. setting out the adjudication as in tht conviction] ; and whereas the said C. D. being so convicted as aforesaid, and being required to pay the said sums, hath not palti the same, or any part thereof, but therein hath made default. Thes^ iire tli^refore to command you tbrthwith, to make distress of the goods and chattels of the said 0. D. or of the goods with which the said C. D. shall be found trading, and if withm the space of ' (not less than four nor more than eight days ; see ^ &. 2. C, 20. ^ 1.) days next after the making of such distress, ^he said sums, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and out of the Ittoney arising by such' sale, that you do pay one moiety of the said sum of so forfeited as aforesaid, together with the said sum of 'for costs, unto A. B. who hath informed us of the said dfienbb ; arid the said other moiety of the sa'^d sum of so for- feited as aforesaid, unto the use of his Majesty, rendering the over- plus, on demand, unto the said C. D. the reasonable charges of taking, keeping and selling the said distress, being first demanded ; and if no such distress can be found, that then you certify the same unto us, to the end that such further proceedings may be hud thdirelh, as to the law doth appertain. Given under our hands and 9eals, &c Aome District^ > I, W. T. constable of in the district afore- to wit. 5 said, do hereby certify — — esquires, three of K — ' his Majestjr'a justices of the pence for the said district, that by vir* tue of this warrant I have made diligent search fur the goods and chattels of the within mentioned C. D. and the goodi and chattels with which the said C. D. was found trading, and that 1 «an find no sufficient goods or chattels of the said C. D. or sufficient goods nnd chattels with which he was found trading as aforesaid, where- on to levy the sums within mentioned. Witness my hand the ■■ ■» day of ' • • « »:?* Jtm -^is "iHOicq Commitment for want of Distress J l -^nimonihrn Home District, > To the Constable of in the said district, and .to wit. , ) to the Keeper of the gaol at Toronto in the said district. Whereas C. D. late of —— [&c. as in the tearrant of distress, setting forth the offence as laid in the informationf iflg'C- ther with the conviction and adjudication ;"] and whereas, after- wards, on the — — day of in the year aforesaid, we the said issued a warrant to the constable of ■■ commanding him to l6vy the said sums by distress and sale of the goods and chat- tels of the said C. D. and the goods and chattels with which the said C. D. was found trading ; and whereas it appears to U8» as wellby the return of the said constable to the said warrant of liis* tfdss, as otherwise, that the said constable hath made diligent search for the goods and chattels of the said C. D. and for the goods and chattels with which the said C. D. was so found trading as afore- said, but that no sufficient distress can be found whereon to levy the same. These are therefore to command you the said consta- ble of aforesjaid, to take the said C. D. and him safely to convey to the gaol at • aforesaid, and there to deliver him tu the keeper of the said gaol, together with this precept : and we do hereby command you the said keeper of the said gaol, to receive the said C. D. into the said gaol, there to imprison him for the space bf — — calendar months, and for your so doing this shall be your sufficient warrant. Given under our hands and sealsr at ——in the district aforesaid, this day of—— &c. nf o^ f N. B. The proceedings subsequent to the conviction, may be under the hand and seal of one of the justices only, for which spe- cial provision is made in the 2 W. 4. c, 4. See title * Conviction.* jist iii ii {*it-j yi' HEIRS AIND DEVISEES. . >>(>, li; II ^'^^the '4S G. 3. c. 2. (revived and continued by sieveraV acts, and lastly, by the 69 G. 3. c. 18.) the lieutenant governor is autho- rised to appoint certain commissioners, (including one of the judges) which commissioners are to ascertain who are the heirs or devisees of the nominees of the crown. <§ 2. Claimants, either Ktiv» Ann 'Bei^iuttu. 197 personally or by agent, are to prodvce before -Uie commissioners documentary proofs of their cbims, to be verified upon oath, ad- ministered by such commissioners, who are also authorised to summon witnesses to attend, under a penalty of JC20. ^ 3. The commissioners shall, after examination, reject or allow the claim, atnd report thereon accordingly ; which report shall be final, and be addressed to the lieutenant governor, who shall thereupon be empowered to direct letters patent to issue for the lot specified in such report, to or in trust for such claimants; but such 'letters patent are not to aflect prior incumbrances. ^ 4. Where any such nominee, in his lifetime, shall have executed any instrument charging the land, it shall be lawful for the person holding the same to register it in the office of the registrar for the county where the lot lies ; and such instrument shall have the same effect as if the nominee bad, at the time of its execution, been in posses' 'on of the crown patent. <^ 5. The commissioners are also authorised to determine the claims of heirs or devisees of persons allowed lands under former commissioners, and report upon the same accordingly ; and letters patent shall thereupon issue to such heirs or devisees. Sec. 6. If during the sitting of the commissioners, or within thirty days after their report, and before the letters patent shall have issued, It shall appear that such claims shall iiave been allowed by surprise, or have been erroneously made, the commissioners are authorised to re-hear such claim . and report Ifaereon accordingly, and award such costs against the first claim- ants as they may think proper. Sec. 8. No claim shall be ex- -amined unless notice specifying such claim, and the names of the claimants ; the numbers of the lot£ ; concessions ; names of the townships-^be put up in some conspicuous part of the office of the clerk of the peace for the district in which such lots are situated, and until a certificate shall be produced to the commissioners, signed by the clerk of tJie peace, that such notice bad been so put up, at least thirty days before the claim heard by the com- missioners. Sec. 9. In all cases of adverse claims, the cnginiis- sioners may defer the hearing, and eiiL^'-ge tlie time fur the production of evidence. Sec. 10. And the commissioners, or any three of them, including one of the judges, may issue <;om- missions for the examination of witnesses. Sec. 12. And may order ihe payment of the expenses of such witnesses by the party producing such evidence. Sec. 13. The commissioners may ap- point a clerk. Sec. 14. This act to be read Ly the clerk of the peace at the opening of every general quarter sessions. By the 52 G. 3. c. 9. <^ 2. the sittings of the commissioners ehail be hoUlen at Yoih, once in the year, during fifteen days^^ to commence on the first tpuudny in Jolj. ■'^ ■■ y ,-!: - -nir" - ^.M->-5;> *<•>(!]•/ i'>-i'rj|;,5jj \\\ 'O/Jj.'j 198 mtiKts Of^iQ JJic^Cficrtt. in* By the £19 G. 3. c. 18. assignees ofoominees who are dead, or who have left the province, may bring their claims in the same manner as assignees under the second clause of the 43 G^ 3« y; Ij ■ . By 4 6r. 4. r. 7. persons claiming under any heiri devisee, or "^assignee of tlie original nominee, may claim such lands in tht iu same manner as any heir, devisee, or assignee of the originaji ^^ nominee, upon giving due notice, to be put up in the courtr house of the district at least three months before the sitting of the commissioners; and the same to be proclaimed by the crier, immediately after the charge to the grand Jury. Sec. 2. After referring to tiie second clause of the 48 Geo, 3. which ,^ only authorised the hearing of claims preferred by the assignees- " of original nominees who were dead, or had left the province previous to the passing of that act, the provisions of that act are, to extend to claims where the original nominees have since died, or left the province, or may hereafter die or leave the,, province, without obtaining a patent. Sec. 3. And when any '''; claim shall be allowed, the lieutenant governor is authorised to ,^' issue letters patent to, or in trust for, the persons to whom such'^' cinims have been allowed ; and that al] the provisions of the 45 G. 3. in anywise touching or relatmg to the claims of the heirs or devisees, or assignees of the nominees of the crown^ mentioned .3 in said acts, shall bs extended to claimants under this act^ $ec. 4. Commissioners appointed in any district to take affidavits under u, the said acts of the 45 and 48 G, 3. may take affidayUs under this J,, net; and any person forswearing, shall jbe guilty ■ of perjury,^^ .^^ And by the 10 G. 4. c. 4. commissioners for taking affidavits ja,.,^ the king's bench may take affidavits relative to claims under tbfi ;{;. heir^.9n4 4^yI^?. .^^tsj , f^nd, ,(^\^ s.wearing; to^ be pierjui;>r, i.m ift »a& l^oticc. From the heir, devisee, or assignee of the original nominee, to be put up in the oflice of the clerk of the peace, thirty days before the sitting of the commissioners. — See 45 Cr. 3. c. 2. ; 59 G. 3. c. 18. Notice is hereby given, that A. B. of the city of Toropto, in .^j the home district, yeoman, will claim before the commissio'.iers ^, appointed to ascertain the heirs and devisees of original nominees,,^; of the crown to lands not under patent, at their sittings at Toronto, ,|^ in the month of July next, lot number _ _ in the con^ ^^ cession of the township of. in the ...._ district, [here rigiDa|„, count sitting by the Sec. which _ tigneet' ' rovince hat net e since kve the en anyf* Ised to:" m such the 45 leirs or uioned Ti) 9ec. I under ^, lerthis,,^ lyitsiA,.^ ier tb^ ;;^ tu S3iutel> nee, to y days I do hereby certify, that the for the ho«ne district. > within written notice was put op in a eonspicuous place in this office, on the i day of last past, and has remained so put up until this day. Dated at Toronto, the day of 18—. S. W. ClerJe of the peactf H. D. Notice^ Fros) otltcr persons claiming under any heir, devisee, or assignee, V and io be put up in the court-house three months b<>fore the fitting of the commissioners. — See 4 G, 4. c. 7. ^ 2. it;be naipe iprm as the above, concluding thus : — (as tbe eldest son and heir-ot-Uw of A.B. who was the eldest son and heir-at-law of C.,D. &(c« {or as assignee, or devisee) of D. £. who was the a8f||gnj^f.Qf,^eD.,S£c. the original nominee.) 5.;^;\,;s,i ii • i r.\,»* Certificate thereon. -J '■> > I do hereby certify, that the { within written notice was put up Q^ce of clerk of the peace, ' fb'r the hotne district. in the coiirt-bonse at the city of Toronto, in the district aforesaid, on the ' " '! ' ■■ day of last, and has remained so put up until this day : And further, that the said notice was proclaimed in open cburt at the general quarter sessions of the peace for the said distH'ct, held in the month of last, at Toronto aforesaid, im- mediately after the charge to the grand jury, pursuant to the statute in such case made and provided. Dated at Toronto aforesaid, the — — day of 19 — . vHumon (??«.%. S.'W, Clerk of the petmtH.p, on HIGHWAYS. J«ij3 A Highway is a public passage for all the king's liege subjects, for which it is denominated in legal proceedings, the king^s high- way. l)eacon*8 C. L> 567. A way may also become a public highway by a dedication of it by the owner of the soil to the pub-* lie use ; and eight years, without any impediment, has been held sufiicient dedication. 1 1 East, 375. All injuries to a highway — as by digging a ditch, or making a liedgJB across it, or ]|aying logs of timber in it, or by doing any other act which renders it less commodiou!:, are public nuisances at common law, and indictable. I Haw, c, 76 ^ 144. On an in- i» mo wntMiK* ilictment for obtlruclion to a highway the judgment of the court is Msunlly a fme, as we*l as an order on the defendant to abate the nuisance ; in order to .varrant a judgment for abating a nuisance it must be alleged in the indictment to be continuing. R* v Sttad. S T, R, 142. The statule 50 G. 3. c. 1. however, provides a summary remedy for the conviction of petty nuisances on the highways, and imposes a penalty of 40s. upon any person stopping or incumbering tlif same. Sec. 13. And a penalty of 10s. upon the ou'iicr of the adjoining enclosed land not removing trees which have fallen across the road. »> Dy statule 50 O. 3. c. 1, ^ 2. entitled, *< an act to provide for the laying out, amending, and keeping in repair, the public high- ways and roads, and to repeal the laws now in force." Justices in sessions in April, in every year, (except in the districts of London and Johnstown ; and in London in June, and Johnstown in May.) are to appoint one or more surveyors of the highways in eadi coun- ty and riding, to layout and regulate the highways and roads within such county or riding, who shall take the following oath, ~ r London in May,) ncfi oonn- Eind roads ing oath, wear that irvej'or of I the 50th the lay- highwajfs I force for mpetency cation, in ling, that ) as better ng tbere- I, the sur- I, in writ- ibing the ad to be / of sucli ICC where I be made ircct snch id in case c Justices pannelled pon their tlie same ; and the itiered or opened accordingly, and the tame shall be a common and pablic highway ; but it shall not be lawful for such highway to lead through any orchard or garden, or to remove any building, with- out the owners consent. ^ 4. Justices in sessions, if necessary, may employ a surveyor of lands to lay out or alter such highway dr road, who shall be paid out of the district treasury at 10s. a day. (Sec. 5. repealed by 4 Gr. 4 c. 10. <^ 1.) ^6. All bridges and causeways hereafter to be built shall noUm less than 15 feet wide, and trees standing upon any adjoiiiing^roenclosed or unim- proved lands may be cut down for building or repairing such 'brii^ges or causeways. <^ 7. Good and sufficient fences to be erected near deep water or dangerous precipices. ^ 8. Seven shillings and six pence a day to be paid to the surveyor while necessarily em- ployed, to be ordered by justices in sessions, and paid by the trea- surer of tlie district ^ 9. The surveyor may sell the land through which an old road has passed, and grant the same to any purchaser under his hand and seal, unless the owners of the land tlirough which the road shall pass are willing to take the same as a com- pensation, in such case the surveyor shall convey the same accor- dingly. ^ 10. The price of the land sold shall be paid to the owner of the land through which the new road shall pass, and if not satisfied the surveyor shall report such further claim at the next sessions, and give notice to the owner to appear, and a jury of twelve disinterested persons shall, upon oath, determine whether any, and what further sum shall be paid : such Verdict to be final ; and any further sum awarded shall be paid upon an order from the justices by the treasurer of the district. Sec. 11. Justices at a special sessions, in March, shall divide their respective parishes, townships or ridings, into divisions, which they shall allot to the respective overseers ; and the said justices may, from time to time, order any overseer to work upon any highway or road within his division as they shall think necessai^ ; and the overseer shall, within ten days after snch order, summon the persons within bit division liable to statute duty or labor to work on such road/ and sliall direct them to destroy all weeds that are hurtful to husbandry, and every person neglecting such order shall be fined as a wilful defaulter for the day ; and any overseer neglecting to summon such persons, and set them to work shall, for every neglect forfeit 405. Sec. 12. All allowances for roads, by king's surveyors, and all roads under any act of parliament, or any roads whereon the public money has been expended, or statute labour done, or any roads passing through Indian lands, shall be deemed common and public highways, unless any have been altei'ed according to law. Sec. 13. Any person stopping or incumbering any such roads, or destroying any fence along lands or precipices, or raifing of 202 w^fi$Mm* bridgcff ahall forfeit 40i. for erery offence. (Sec. 14. relates to the appointment of oveneeri of highways. See 33 0. 3. e, 2. and 40th c, 5. and for towns 4 0» 4. c. 9.) Sec. 15. The overseers shall make out a list of every person who is the owner of a cart, wngon, plough, sled or team, within their division ; and likewise, of all the inhabitants liable to work npon the highways, a copy of which, signed by the overseer, shall be delivered to the justices of the peace acting i|^in the county or division, within twenty days after overseers ap^mted ; and the overseers shall carefully and di- ligently collect the compositions and forfeitures within the year he is overseer, and shall keep a book of the duty or labour done, compounded for, or unperformed, and of all monies, (to be verified on oath, if required,) received by such overseers, and the application thereof; and of all sums doe and owing for com- positions and forfeitures, which book shall be delivered to the justices at some special sessions, in March, every year. Sec* IG. That the roads and highways through every township, kc. shall be cleared, repaired, and maintained by the inhabitants there- of, and every person liable to work under this act shall, in person, or by a sufficient person in his stead, work on the said road, and shall bring one spade, one pick-axe, bar, or such other useful tool or instrument as he may be owner of, and be directed by the over- seers to bring, allowing eight working hours ; and every person keeping a cart, wagon, or team of two horses, oxen or beasts of burden or draft, shall send, on a day, to be appointed by the over- seer, a cart, wagon or team, and one able man to drive the same, for such time as he shall be liable to work on the said roads, to work on the highways, roads, streets or bridges, eight hours each day, which day's work shall be equivalent to two days personal labour ; and if any labourer or driver shall be negligent, the over- seer may discbarge him, and he shall incur the forfeiture which the person would have incurred in case such labourer had not at- tended with such team and cart. ^. 17. The overseer shall give each person liable to work, three days notice, either verbally or in writing, at the house, of the day, hour and place, upon which each of said day's duly shall be performed, and every person having a cart, wagon or team, neglecting to attend, (not having compound- ed) or to send such cart &cc. shall forfeit 10;.; and every person liable to personal labour not appearing, or sending a sufficient man in his stead, with such tool or instrument, at the place appointed, shall pay St. to the use of the highways in the township. (<^ 18. repealed by 56 G. 3. c. 39. ^ 1.) ^19. Compositions may be paid to the overseer, to be in full for statute labour, for the current year, and such compositions shall be applied to the use of the highways. ^ 20. When any additional money shall be required for any parti- 3H^mtllM|t0« ;09 eUtei to t, 2. and tveneerR if a cart, likewise, I copy of iiticet of nty days f and di- tlie year ar done, (to be and the or com- i to the . Sec. hip, &c. its there- 1 person, oad, and lefgl tool he over- y person leasts of he over- ^e same, oads, to urs each sersonal he over- 'e which not at- lall give illy or in ich each aving a ipound- person ent man lointed, (§18. be paid nt year, ghways. »y parii- cular work of manifest advantage to the public, llie surveyors ihall certify the same to the justices in sessions, with an estimate, and the justices at n subsequent sessions may order such work to be done, not exceeding £50. out of the district treasury. § 21. Owners of land shall remove trees that have fallen across the high- ^vay8, within twenty-four hours, under the penalty of lOi. per day, .uier notice. <^22. All fines and foiTcjiures under this act, to be recovered before any two or more Justices, by confession, or upon oath of one witness, and shall bo levied by distllM and tale, and in default of such distress, cutnmitment to the common gaol for any time not exceeding one month, unices the fines and forfeitures, costs and charges, shall be sooner paid ; and the produce of all such fines, he. shall be applied towards the roads and bridges within tHe township or division where they shall arise. ^ 23. Overseers neglecting to apply composition money to the use of the highways, or refusing to account for the same, upon conviction, by confession, or oath of one witness, may be committed to tho common gaol until he shall render n true account, under oath, and pay same into the hands of such justices ; such imprisonment not to exceed three months. <^ 24. The money received by the justi- ces, shall by them be paid to the overseer for the next year, to be applied by him as other composition money. § 25. Overseer swearing falsely, liable to the punishment of perjury. {^ 26. re- pealed by 56 G. 3. c. 39. § 1.) § 27. After any fall of snnw, by which any highway shall be obstructed, overseers may direct such nnd so many persons liable to work on the said highways, next ad- joining the same, possessed of a sleigh or sledge and team, to open a free passage, by driving such sleighs or sledges through the said highway. ^ 28. Overseers may require the inhabitants liable to work, to set up on each side of the highway, or over any froxen wateri!, stakes or beacons to direct travellers : penalty for neglect, the same as neglecting to perform statute labour. §29. Two justices may hold a special sessions from time to time, for the pur- poses of this act, and to adjourn the same, giving six days notice of the time and place of such special sessions and the adjournroenti thereof. (§ 30 repealed by 59 G. 3. c. 8. § 2.) § 31. If the name of any person shall be omitted in the assessment roll, he shall, nevertheless, be liable to work. § 32. Justices in special sessions may lessen the statute labour when the whole shall not be required. § 33. Overseers not liable to any action for any thing done under an order of the Justices. § 34. Actions to be commenced within three calendar months. General issue may be pleaded, and spe- ciiil matter given in evidence, with treble costs to the defendant if plaintiff shaM become nonsuit, or verdict for defendant. § 35. Freehold aiut soil of highways to be vested in his Majesty. M J' 7? 'if' -n I \ ' if Iff S!''i" m 304 1^islififmu». '^- 6y 52 O. 3. c. 10. when any roads shall be laid out under tiie authority of the 8th. clause of the 50 G, 3. that shall not be con- firmed by the justices in quarter sessions, the surveyors charges shall be paid by the party applying for such survey. By 56 G. 3. c. 39. every male inhabitant, from the age of 21 years to 50, not rated or assessed, shall be compelled to work on the highways three days in every year, within the township where he resides, undtt|lhe same penalty as is imposed by act on persons rated ; and the^erseer shall certify, so as to prevent his being called out again in another township during the same year. ■■ri By 59 Gr. 3. c. 8. <§ 2. every person included in the assessors roll shall work on the highways in proportion to such assessment, viz : If his property be not rated at more than £25,. ........ 2 duyi. - If at mure than £25, and not more than £50, 3 ** ,< If at more than £50, and not more than £75, 4 " n If at more than £75, and not more than £100,. 5 " . If at more than £100, and not more than £150 6,. " .^, If at more than £150, and not more than £200, 7 " '■\ If at more than £200, and not more than £250, ....... 8 ** . '. If at more than £250, and not more than £300, 9 " ^' If at more than £300, and not more than £350, 10 " *' If at more than £350, and not more than £400, 11 •• - If at more than £400, and not more than £450, 12 " /-■ And for every £100 above £500, till it amounts to £1,000, 1 *• 1' And for every £200 above £1000, till it amounts to £2,000, 1 »* :,•-: And for every £300 above £2000, till it amounts to £3,500, 1 '* And for every £500 above £3500, 1 •* Provided, that every person possessed of a wagon, cart, or team of horses, oxen, or beasts of burthen or draft, used to draw the same, shall be liable to work on the highways not less than three days* Sec. 3. Lands subject to assessment, but not included in the assessment, shall be rated at one-eighth of a penny per acre, annually, for amending the roads, to be levied and collected as other rates and assessments. Sec. 4. The treasurer may receive such rates, and the collector may proceed to distress and sale. Sec. 5. Such rates to accumulate one-third if in arrear three years ; one-half for five years ; and double, if eight years ; and thence- forward in double the amount. Sec. 6. The treasurer to keep an account. Sec. 8. Collector to pay over receipts to the treasurer, retaining 5 per cent. Sec. 9. Warrant of distress, 2s. 6d. ; milage, 4d.; sale and return, 2s. Sec. 11. Overseers shall render an ac- count, upon oath, of the monies expended under this act ; and monies not expended shall be paid over to their successors. Sec. 12. Justices, at any special or petty sessions, may, upon appli- cation, «?xcmpt any indigent person not rated more than £26, or poor emigrants intending to become settlers, and not resident six or r»*jrf,ii?ft|XH^j^ K)V )0^(fi||Um|^S^«i months in the province, having first given notice to the overteer, from statute labour on tlie highways, and all composition in lieu thereof. By 4 G. 4. c. 9. ^ 1. the 59 G. 3. is made perpetual. Sec. 2. Any p|rson liable to perform statute labour, (except such as being resident in any town, shall be liable to perform nam'e than six days labour) may compound for such duty, at 2s. 6d. per day. Sec. 3. And any person resident in any town, and liable to more than six days labour in any one year, shall, in lieu of labour, pay to the surveyor of streets, to be appointed as hereinafter mentioned, on or before the first of May in each year, 2s. 6d. for each day's duty. Sec. 4. Justices of the peace in sessions, or at any adjourned ses- sions, may appoint a surveyor of streets in and for each town, and remove such officer at their will and pleasure. Sec. 5. Such surveyor of streets shall, before entering upon office, take an oath, in open court, that he will well and faithfully execute the duties thereof, (repealed, in part, by 8 G. 4. c, 14) and shall, with two sureties, to be approved by such justices, enter into a bond to his Majesty, his heirs and successors, in such sum as to the justices may seem meet, to account for all monies he may receive. Sec. 6. Justices may, at any special sessions holden for the purpose, order the street surveyor to amend any street ; and the surveyor shall, within ten days, summon persons liable to statute labour, and order them to work thereon, under the like penalty for neglect or refusal imposed by any former act. Sec. 7. Commutation money may be also expended on such streets. Sec. 8. Aqd iii repairing any highway or bridge in the vicinity of the town. Sec* 9. And the surveyor so acting shall be discharged from any action of trespass. Sec. 10. The laws for appointing overseers of high- ways for any tovm, repealed. Sec. 11. Justices in quarter ses- sions may order remuneration to the surveyors of streets, to be retained by such surveyors out of monies received by them. Sec.' 12. If any person liable to pay money in lieu of statute labour shall neglect to pay the same to the surveyor of streets authorised to demand the same, within ten days after demand, it shall be lawful for any two justices, upon proof on oath, to issue their warrant for levying double the amount, with costs, by distress and sale. Sec. 13. Tenth clause of the 59 G» 3. so far as relates to the expenditure of money by overseers, repealed ; and the treasu- rer shall pay to the order of the magistrates in sessions, in March, all such money as may have been collected by the rate of one- eighth of a penny per annum, to be laid out by the said justices by contract or otherwise, to the best advantage, on the highways within the townshijg) where the land lies. ',ii S06 n^ffifiiiii^a^. ■1 i 1 iw 1. 1 ; V, ■> By 40. 4. c. 10. ^ 3. No road shall be more than 06, nor less than 40 feet wide ; but not to affect roads now established. Sec. 3. If any road shall be altered, the new one shall not be less in width than the old. Sec. 4. Justices of the peace, at their special sessions in March, or in general quarter sessions, by application in writing, sigii0l by 12 freeholders, at the least, may apply part of the statute labour of such township on the highways of any adjoining township, if it shall appear advantageous, in such pro- portion as such justices shall think fit. Sec. 5. When any person liable to one-eighth of a penny per acre shall expend ahy fnoney on roads in the township, &c. where the same is situated, or cause it to be done, the approbation of the justices having been first obtained, the said justices, upon application at any subsequent sessions, if it appear that the same has been laid out to advantage, may order the treasurer to set off the amount against any arrears accrued on said lands, or such part as may appear to have been expended for the good of the town, &^c. where situated. Seu. G. When application is made where any road laid out or altered, those making it (after sale of the old road, and proceeds paid to the owner) shall be liable to pay any sum which a jury, as by law directed, shall ascertain ; if the owner, agent, Sic. shall within three months from (he date of the report of such new road, &&c. make application for compensation according to luw, no order shall issue for statute labour thereon, unless a discharge or acquittal for the same ; or release for the land taken fur such purpose, from the owners; or proof of a tender of the value so ascertained, be produced to the quarter sessions ; but nothing in this act to prevent the said jus- tices directing payment out of the district money, if it shall appear that the alteration is of manifest public utility, and not merely local. Sec. 7. repeals 9th. clause of the 50 G. 3. so far as re- gards government appropriations ; but this clause not to restrain 'any surveyor of highways from selling and conveying any road which he is now authorised to do. Sec. 8. Any person may com- pound, by paying 5s. a-day for each cart or wagon, team and driver, and 2s. 6d. per day fur each day's labour. By 8 G. 4. c. 14. so much of the 4 G. 4. c. 9. as requires the oath of street surveyors fur towns to be taken in open court, (ex- cept those towns in which the court is holden) is repealed. Sec. 2. Such street surveyors may take the oath, and give the required security, before any justice of the peace in which such towns shall be situated. Sec. 3. Such justice to transmit the same to the clerk of the peace. By 11 G. 4. c. 7. the inhabitants, at their anntial town meetings, may choose any number of surveyors, not exceeding 30 ; and One pouod-keeper to each public pound, not exceeding 6, the situation m nor less I. Sec. e leiss in r special ittcation ply part of any jch pro- / person f nioney or cause een first [>sequent vantage, / arrears ave been Sec. G. ed, those »e owner) ted, sliall iths from mlication \)t statute same ; or rners; or ed to the said jus- ill appear It merely far as re- restrain any road may corn- team and i^uires the [>urt, (ex- ed. Sec. ( required )Wns shall lie to the A^eeffflgs. and one ; situation mm^mm. 207 whereof shall be designated at some town meeting, and recorded' in the minutes of the meeting. Sec. 2. No distix'ss shall be taken out of the township. Sec. 3. Such overseers and pound-keepers to be chosen as heretofore, and to have the like powers, tiibv.'f ' .jiJi5«b.So help you God. _ _ ^. su Hi ii Appointment of Surveyors. (50 G. 3. c. 1. § 2.) ijivvJ^'f • Home District, > At the general quarter sessions of the peace, '"^'"^'to wit. 5 holden at — — in and for the said district, on. the— — day of — — in the year of the reign of our sovereign lord William the fourth, of the united kingdom of Great Britain and Ireland King, defender of the faith, and so forth, before J. P. and K. P. esquires, and others, justices of our said sovereign lord the King, assigned iu keep the peace in the said district, and also to hear and determine divers felonies, trespasses, and other niisdemeanors, in the said district committed — It is ordered, that the following persons be appointed surveyors of the highways in the several undermeutioued townships in this district, for the year ensuing, that is to say— .,r ,^, .^ ij 'itciy For the township of . A. B. of the same, yeoman, '-'.^p;. For the township of C. D. of the same, yeoman. ' ^ &c. inc. &c. &c. inc. ' And it is further ordered, that the clerk of the peace do forthw'itb duly notify the same to the said surveyors. ii i.. lit the said district, do hereby respectfully state, that the pubHc high- way leading from \here describe the road'^ in the said township,' and in the neighbourhood of us the said freeholders, now in use, is inconvenient, and may be altered so as better to accommodate his Majesty's subjects, and others travelling thereon, by, Uc. \h6r6 describe the proposed alteration; or^ if intended to open <^ new roadt say after the word '^ inconvenient"— -and that it is 2oe nec^aary to open a nevi road, for the letter accommodntion of his Majeity^s tuljects, fyc. ; and that such new road should be, Sfd — [here describe the proposed route.'] And we do liereby require you, the said surveyor^ to examine the same, and report thereon, in writing, to the justices, at tiicir next general quarter sessions of the peace for the said district. ^ Witness our hadfds, the — — . day of 183 — . tVw*xa^*/|»«*^v«i« w Surveyor^ Report thereon. ./? -s-j. rt« To fhe Justices of the Peace at their general qnarter sessions, to be held at in ond for the district of' ■ ■ on the day of • I do hereby certify' to the said court of quarter sessions, that [ have examined the road mentioned and referred to in the within written notice, and that I approve of the following alteration being made [describing the same] or, that I recommend a new road to be made [describing the same].. . ^ ^ .^i,.! Witness my hand the — — day of 18 — . - •; ^j ^^l^y; ''"^•■' Notice ,) .^^jy J , ,,; „, ^d) To Mr. A.B. Surveyor of the township o f in the district. Take notice, that at the next general quarter sessions of the peace to be holden at in and for the said district, I, (or we) shall oppose the alteration of the public highway or road leading from - to ■' ■ in the said township, mentioned in your report, dated the day of ■ ■ Witness my (or our) hand tlie day of 183—. ;.,* ,,*(,ii; j Order for altering or opening a Road. 1l •:•>? MQly^^$>^ Home District > At the general quarter sessions, &c. Upon the to wit. 5 the application of— freeholders of the town- fO^Wa^mnu^ 2oa of his equire lereon, iSsioiis *» 5r' ins, to oil the that I within I being 'oad to irveyor luly re- of the he said report he next in and lat the resaid. — day veyor. iistrict. of (he (or we) eading n your r) hand )on the } town- ship of i-.—. in the said district, for the alteration of the public highway or road leading from i^ to in the said townsbip»' [or. for a new road, S^c] and upon considering the report of A. Bi surveyor of the said township duly made thereon, and no opposi- tion being made thereto — It is ordered that [here describe the aW teration, Sfc.^ ,*'^ The like where Opposition is made. > And such alteration having been opposed, and thereupon a jury impannelled and sworn, pursuant to the statute in such case made ; and such jury having heard evidence upon oath, touching =^he premises, and by their verdict confirmed (or annulled) the said re- port. — It is oidered &cc. or, where a moditication is determined upon, — and by their verdict confirmed the said report, subject to such alteration and modification as hereinafter is expressed.-r-lit is^ ordered, &c. Cvnveyance, by the Surveyor, of the old Road. Know all men by these presents, that I, A. B. of the towhs^ffr of in the district of _-._ surveyor of the said township, for and in consideration of the sum of of good and lawful money of Upper Canada, to me in hand paid by G. M. of. in the said district, yeoman, the receipt whereof I do hereby &c- koowledge, have granted, bargained, sold and conveyed, and by these presents do, as such surveyor as aforesaid, grant, bapgain> sell and convey, unto the said G. M. his heirs and assigns, all that parcel of land, late being the public highway or road leading from . . ■ to ._— commencing at, &;c. and ending at, &z;c. contain- ing by admeasurement .. acres, or thereabouts, [an admtraiB . descriptiotit with ahuttaht should be inserted] To have and to hold the said parcel of land and premises, hereby granted and conveyed, with all their appurtenances, unto and to the only, proper use and behoof of the said G. M. his heirs and assigns for ever. In witness whereof, I have hereunto set my hand and seal, the ■ , day of 183—. ---^ » To A. B. Surveyor of the township of in the district of I, the undersigned, B. D. do hereby signify to you, the above named surveyor, that I am not satisfied with the paymeiU of thd sum of— being the money arising from the sale of the late highway or road in the said township, as an indemnifioation for the land through which the new road passes, and of which I was the owner; and that I claim the sum of as a further com-* pensation for the same. .; i ..^^ Witness my hand, the day of 183—. 210 WMMfW9^ Mt ':'. Notice ly th* Survejfor to tht Ownir, to appMf at iht B*nion». To Mr. B. B. of the township of in the district of...i« m^ Take notice, that you are hereby required by ine» (tursuafil to the statute in such case made and provided, to appear at th^ next general quarter sessions of the peace, to be holder at . in und for the said district, when your claim of .. for further compensation for the land comprising the public highway or road lately made through your land, will, be inquired into aiid ddtr- mined according to law. -.,.,«...,,; ^^ Witness my hand, the .^....-^ day of,. 183 — » »\ijtii .'v:Hf> uojL' )uaU Order for Commentation, At the General Quarter Sessions, iSt*, At this sessions, B. D. of the totvnship of ■ ■ in tnt said district, yeoman, having appeared, pursuant to nbtlce to him given, by A. B. surveyor of the said township, respecting his claim for furiher compensation for the land now comprising the public highway or road lately made upon his land, viz. the road leading from — to ..^...^ in the said township ; and a jpry having been at this sessions impannelled thereon and sworn,' pur* suant to the statute in such case made and provided, and by their verdict determined that the further sum of., ■■— should and ought to be allowed to the said B. D. for the said land-— It is ordered, that the treasurer of the district do pay him the same accordingly. Information against a Defaulter, for not doing Statute LabovTyfUT' suant to the 50 G, 3. c. 1. § 17. (Penalty, 9s.); ;'; " ■' District, > The information and complaint of A. B. of the to wit. > township of in the said district, yeomai), one of the overseers of the highways in the said township, taken on oath, this _— day of before us C. D. esq. and G. H. esq. two of his Majesty^s justices of the peace for the said district ; the said informant saiih, that G. G. late of the township aforesaid, yeoman, being a person liable to perform certain duty and labour upon the public highways, in the said township of . ... pursuant to the statute in such case made and provided ; and having been duly notified and summoned to attend and perform such his duty find labour aforesaid, upon the highways within the division allot- ted to this informant, in the said township, to wit, \here describe the particular part of the road^ in the township and division afore- said, on Tuesday, the .day of ' last, he the said G. G. did not, either by himself personally, or by any other person in 11 if^ W*W|!¥*9p« 3U lafit to 1^ next -m^ in farther »r road d^r- fit said to him ting his ing the he road I a jury rn,' pur- by their id ought ordered, rdingly. owtpur- 3. of the yeoman, tall en d G. H. district ; foresaid, d labour )ursuant ing been his duty on allot- describe on afore- id G. G. jerion in hU jiUtit attend and perform such, his duty and labour, at the time and plieice aforesaid, nor hath he the said G. G. paid to this informant, any sum of money whatever, by way of composition, in Vipli thereof, but the said G. G. in the premises hath wholly made default, contrary to the form of the statute in such case made and provided : wherefore the said A. B. prayeth, that the said G. G. may be convicted in the sum of five shillings, pursuant to the stat- ute in such case made and provided, and that the said G. G. may be summoned to answer the preruises, and make his defence thereto. Sworn before us, &c. "■Mti .■:»«-r?t;t|:J Summons thereon. — • — District, > To the Constable of the township of to wit. \ Whereas information and complaint upon oath, hath been made before us C. D. esq. and G. H. esq. two of his Miyesty'ajustices of the peace for the said district, that {here set out the maiter charged in the information^ to the conclusionl*-^ These are therefore to command you, forthwith to summon the said 6. G. to appear before us, at .._ in the town of in the said district, at the hour of in the forenoon of the same day, to answer the preniises, and further to do and receive what to the lilw shall appertain. Herein fail not. Given under our hands and seals, kc. ,i-r\ '-fi \\inf f.f.i^.,-f.i The Conviction^ ■ ih ■"■'•« Should be fVamed according to the general form given by the % JV, 4. c, 4. see ante title * Conviction,* It is not however neces- sary, that it should be actually made out instanter ; it will be suffi- cient to make a minute of the conviction, and at any subsequent period it may be drawn up in due form. <.„:_». tL, Distress Warrant, • District, > To the Constable of- to wit. I Whereas G. G. late of. in the said district, in the said district. yeoman, was on this day duly convicted before us C. D.^esq. and Cr. H. esq. two of his Majesty*s justices of the peace for the said district, for that he the said G. G. &c. [stating the offence as in the tonifiction] contrary to the form of the statute in such case made and provided ; and we the said C. D. and G. H. thereupon ad- judged the said G. G. for his said offence, to forfeit and pay the sum of five shillings, to be paid and distributed according to the form of the statute in such case made and provided ; and whereas, the said G. G. being so convicted as aforesaid, and being required to pay the said sum of five shillings, hath not paid the sam^ or any )' 212 mtt!MfM90^^ part thereof, but therein hath made defaults Theie are therefore to command you, forthwith to make distress of the goods and chat- tels of the said G. G. and if within the space of — -^(nothts than four days, nor more than eight dayt; tee 27 O, 2. c. 20. ^1.) days next after the making such distress, the said sum, together with tlie reasonable and necessary charges of such distress and sale, tbali not be paid, that then you do sell the said goods and chattels so bv you distrained, and out of the money arising by such sale, that you do pay the said sum of five shillings to A. B. one of the over- seers of the said township, to be by him applied to the use of the highways in the said township, accordmg to the statute in such case made and provided, rendering the overplus, if any, on de-* mand, to the said G. G. after deducting the necessary charges of such distress and sale ; and if no such distress can be maiden that then you certify the same unto us, to the end t^^at such further pro-' ceedings may be had therein, as to the law du'ih appertain. Given under our hands and seals &ic. ^<' \i^l:J if.m%ieib raovjihuH on Utii iiid The Costs. < 3*«'*biaiil ^ih saaiiT aU'tJiUv, J'h d»' litan^ As the statute does not seem to authorise expressly, any distress or sale for the costs, it will be safer to proceed for the costs under the 18 6r. 3. Cv 19. 4 1* At the time of the conviction, the justices should also assess and award the costs, pursuant to this statute, and then demand the payment thereof, at the same time with the pen- alty. If neither should be paid, {nor security given for the costs) the justices should, by a separate warrant, in the form giveu by tlie above statute, issue a distress warrant also for the costs. For the form necessary herein, see an/« general title * Coitt,* p» 141. ■■■>■ Constables Return on the Distress Warrant. District, > I, W. T. Constable of in the district afore- to wit. i said, do hereby certify C. D. and G. H. esquires, two of his Majesty's justices of the peace for the said district, that by virtue of this warrant 1 have made diligent search for the goods and chattels of the within mentioned G. G. and that 1 can find no sufficient goods or chattels of the said G. G. whereon to levy the sum within mentioned. Witness my t:p.jid the • day of - 183—. J- ,f . ■>"'■ \-r . t- ".< ~ ^* ■^» ^ Commitment for want of Distress. ,,, ,:,.;'^ ^^ '\^^^.^ . \^^^f,, < — ^District, > To the Constable of in the said district, siHd to wit. i to the Keeper of the common gaol at ' in the said district. Whereas G. G. late of— -yeoman, was on the ^ttt^M^ 213 nis ore- lires, that oodft And levy of •Hiii "■^<^> and the the '■ ■■' " day of—* — last pott, duly convicted before us, C. D. and G, H. esqrs. two of his Majesty's justices pf the peace for the said district, for that he the said G. G. [stating the offence as in the conviction] contrary to the form of the statute in such case made and provided; and we the said C. D. and G. H. thereupon ad- judged the said G. G. for his said offence, to forfeit d pay the sum of five shillings, to be paid and distributed accoruing to the form of the statute in such case made and provided ; and whereas, afterwards, on the ' day of in the year aforesaid, we the Said C. D. and G. H. issued two several warrants to the constable of ■■ ■ ■ commanding him to levy the said sum of five shillings, by distress and sale of the goods and chattels of the said G. G. as also the sum of—'— for costs, awarded by us in the said matter, pur- suant to the statute in such case made and provided ; and whereas, it appears to us as well by the returns of the said constable to the said warrants of distress as otherwise, that the said constable hath made diligent search for the goods and chattels of the said G. G. bat that no sufficient distress can be found whereon to levy the same : These are therefore to command you, the said constable of " aforesaid, to take the said G. G. and him safely to convey to the corombn gaol at — — aforesaid, and there to deliver him to the said keeper thereof, together with this precept; and we do hereby command you, the said keeper, to receive the said G. G. in- to the said common gaol, there to imprison him the said G. G. for the space of [not exceeding one month,] unless the said sums shall be sooner paid ; and for so doing this shall be your sufficient wp.rrant. Given under our hands and seals, &ic. N. B. The -above form may be easily adapted for other cases arising und^r tiiis statute, viz: the SO O. 3. c. 1. JC'J^ns"' iS'^iY »»c'^»l'.ni^i£i /fi4j>s;-:vt/y?i «>v..j ■,«*< Information against a Labour or Driver for negligence, 50 G, 3. c. 1. (penalty lOs.) ■ District, ) The information and complaint of A. B. he. to wit. 5 [^s before] the said informant saith that B. K. late of the township aforesaid, laboure * being a person hired and sent by one T. M. of the afore»r-id township, yeoman, with a cer- tain horse and cart to work on the highways in the division allot- ted to this informant, on the day of pursuant to the statute in such case made and provided, and while so being at work, upon the said highways in the said division, with such horse and cart as aforesaid, did [ refuse or neglect to tcork^ or to carry good and sufficient loads during the said day^ ] contrary to the statute in such case made and provided, and that in consequence thereof he, this informant, did discharge the snid B. K. on the said I day of. ...... .. last from working on the said highways. ii 214 miitPMm ^ ■^ Iff i ?| 1 5' '■■ M and before the bouri of working thereon were ended, punuapt to the provisions of the statnte in such case made and provided ; where- fore the said A. B. prayeth that the said B* K. may be convicted, &c. [ at in the last. ] Sworn before us, &c. iinu'Vi .ifjiB" Information against the owner of a eart^ wagon or team^foT notptr- ,, forming Statute Labor, — 50 O, 3. c. 1. § 17. (penalty 10s.) .t^- ■ District, > The information and complaint of A* B. 8cc» to wit. > [as before.] the said informant saith that K. L. late of the township aforesaid, yeoman, being the owner and possessed of a certain cart, [ wagon or team of two horses, or oxen^ used to draw the same.'] and liable to send on the day bereioafter mentioned the said cart, [wagon or team, fyc*"] and one {ible man to drive the same, to work on the highways within the division allotted to this informant in the said township, pursiuant to tb^ statute in such case made and provided, and having been dnly notified and inquired, did make default by not tending tucb cart, [wagon or team,"] with an able man to drive the same, to work on the said highways in the said division, to wit, on Tuesday the day of — last, he the said K. L. not having paid ary compo- sition to this informant for the duty and labor aioresaidji (contrary to the statute in such case made and provided ; whereibre the jwid A. B> prayeth, &c. [as in the first information*'} Information for stopping and incumbering a Public Highway ^ itndtr ,,, j^^^j the 50 G. 3. c. 1. § 13. (penalty two pounds,) „ .. District > The information and complaint of A. B. &c. (as to wit. ) before,) the said Informao* ''atth that 0« P* late of the township of in the said district, on the — -.— day of ■ last, did, as this informant hath beenjnformed and believes, wilfully cause a certain public highway, in the said township, leading from [ here describe the road"] to be stopped up [ or t'n- cumbered ] by lodging and depositing in and upon the said public highway a quantity of lumber, [or by whatever other meam the thoroughfare was impeded, 1 contrary to the statute in such case made and provided, [add also, if such be the case, and this injor- mant further saith, that the obstruction aforesaid still remains,"] wherefore the said A. B. prayeth, &ic. (as before,) Sworn before us, &C. <-nr tir Information against a party for not removing a fallen tree from the :,'''.y'\. Road.—bO G, 3. c. 1. § 21. (Penalty \Qs,) > '«ii ^^ ■ District ) The information and complaint of A. B. Uc, [at to wit. > before.'] The said A. B. saith t^at a certain tree having been cat down (or fallen) out of certain enclosed land be- BC0lllll«fi0< 215 apt to' vhere- /ictedi cpmpo- ontirary the jwid r, undtr &c. (ai P. late day of elieves, wnsbip, [ or tn- I public iaiu the icb case \s infoT' imaifUt'] n before from the ain tree land be- longing to C. D. of the laid townihip, yeoman, n n)ii ■ certn ii public road and highway in the laid township, III ai lo tiid •^xt a^oining the sai() enclosed land of the said C. D. lUh info Pli- ant, did, on the day of-— — instant, personmi^ notify Jie same to him the said C. D. and at the same time require him the said C. D. to remove the same ; and this informant further saith, that the said C D. hath neglected to remove the said tree out of the said public road and highwav, within tiie space oAwenty*four hours after having been so notified and required to do so as afore- said, and that the said tree is still remaining upon and across the said public road and highway, there incumbering the same, con- trary to the statute in such case made and provided : Wherefore tbis informant prayeth. Sic. {as before.'] *' Sworn, &c. T--.f,.!.,i -uit ^i: ri'.> JnifSi/^iiH(iHtligii{nU an Inhabitant of a 2'own, for the non-payment of tomposUion for Statute Labour, for the apace of ten days after i! demand.-^See 4 G. 4. e. 9. § 12. (Penalty double the amount.) — — . District, > The information and complaint of A. B. of tlie to wit. 5 town of in the district of surveyor of streets for the said town, taken on oalh this — >-. day of before us (X D. esq. and Q. H. esq. two of his Majesty's justices of the peace for the said district: The said A. B. saith that £. F. of the said town 6f — — being a person lial>le to pay money in lieu of statute labour, to wit, the sum of unto him the said A. B. as such street surveyor as aforesaid, under and by virtue of a certain act of parliament, made and passed in the fuurtli year of the rei^rt of his late Majesty King George the fourth, entitled, *' an act to amend and make perpetual an act passed in the fifty- ** ninth year of his late Majesty's reign, entitled, * an act to re- ** peal part of, and amend the laws now in force for laying out ** and amending, and keeping in repair, tlie public higliways and ** roads in this province ; and also to amend an act passed in the *' fiftieth year of his late Majesty's reign, entitled, 'an act to pro> " vide for the laying out, amending, and keeping in repair, tlie ** public highways and roads in this province, and to repeal the '* laws now in force for that purpose"-'--he, this informant, did, after the said sum of — ^-x had so become due to him the said A. B. as such street surveyor as aforesaid, to wit, on tlie day of -_ demand payment thereof, of and from him the said £. F.; but the said £. F. refused to pay the same, and still doth refuse and neglect to pay the same, contrary to the statute in such case made and pro- vided : Wherefore the said A. B. prayeth that the said £. F. may be convicted in double the amount of the said composition, to wit, the sum of — ^ pursuant (o the statute, &c. \a$ hrforc.'] Sworn, &£c. i !' ■ 216 mitMMm* Oath of the Ovenecr, verifying his account, bO O, 3, c. 1. % 15. ^ A. B. of the township of n the overseers of the highwa^rs in the late one of the district, yeoman id townthi P» inaketh Oath and saith, that the account now exhibited and sub- scribed by this deponent, contains a just, true, and fair account of all such money ns hath come into the hands of this deponent as such overseer, in respect to his division in the said township ; and to whom ; and on what occasion the same has been paid and applied ; and also of all sums of money that remain due and owing from any person or persons, in respect of payments, compositions or forfeitures, for and in respect of the said highways, within the year for which this deponent was appointed overseer, ending ■« Sworn before us, , .. ,. Information against a Surveyor^ for neglecting to summon a person liable to Statute Lahour^ pursuant to 50 O. 3. c. 1. § ll.-»{'P Be it remembered, that on the — ^ day of to wit. ) in the year of our lord— — at —— in the said district, C. D. of — — in the said district, yeoman, personally cometh before us, J. P. esquire, and D. H. esquire, two of hit Majesty's justices of the peace for *.he said district, and informeth IIS that A. B. late of the to\/nship aforesaid, yeoman, late one of the overseers of the highways of the said township, and while being such overseer as aforesaid, to wit, between the day of 18 — and the day of 18 — , did neglect and refuse to summon J. K. late of the same township, yeoman, to work and labour upon the highways in the said township, within the division allotted to him the said A. B. he the said J. K. then being a person liable to work and labour upon the highways aforesaid, within the division aforesaid, contrary to the form of the statute in such case made and provided, whereby the said A. B. hath forfeited for his said offence the sum of forty shillings. — "Wherefore the said C. D. prayetli, &c. [as be/ore.'] Exhibited before us. "* ■■■• N. 6. — This information should not be upon oath, and may be laid by any indifieren! person : it requires only the signature of the party ; and it will be incumbent on him, at the hearing, to prove by the witness J. K. himself, that he did not work on the roads, and was not at any time summoned so to do. „, ^ The '* summons," and " other proceedings," ont his and the several preceding informations, will be the same as the firf.t. f^iglfimm* '^ 237 InfornuUion against an Ovrater for neglecting to apply eompotition • ,ir.crta<.;^ '"*"*y- 50 G. 3. c. 1. § 23. ^ff. lo W ft — ^ Diitrict, > Be it remembered, that on the ^— day of « to wit. \ in the year of our lord ' at ■ &ic. [aa hefort*'] That A. B. late one of the overseers of the highways of the said township, hath neglected and refused to apply, or duly to account for, certain composition money, to wit, the sum of- by him received as such overseer, for and on account of the high- ways in the said township, to the use of the highways in the said township, in (he manner directed by -— i- esquires, justices of the peace for the said district, at a special sessions held by them the •aid justices, at ' in the said district, on the day of -— — last, contrary to the statute in such case made and provided. Wherefore the said C. D. prayeth (hat the said A. B. may be duly convicted of the said offence, and may be summoned to answer the premises and make his defence thereto. Exhibited before us. ■, j.^^^iMuwyjp N. B. — ^TbiB information should not bo upon oath. r.'. la 3rK- sin!*/ -f' 'ISV: to District, f wit. I To the constable of the township of ■ in the said district ; and to the keeper of the gaol at — — ill tlie i^uid district. firc«9Hi Summone thereon^ " The same as the (irst. ; ? f-- Commitment thereon. Whereas A. B. late of the township of. — late one of the overseers of the saiu township, was this day duly convicted before us I I I I two of his Majesty's justices of the peace for the said district, for that he the said A. B. being one of the overseers, 'Sec. ' \here set out thf matter charged in the information] contrary io the form of the statute in such case made and provided : And'' whereas the said A. B. being so convicted as aforesaid, and being now required to pay the said sum of pursuant to the act in such case made and provided, hath not paid the same, or any part thereof, or rendered any true account thereof, but herein hath made default : These are therefore to command vou, the said constable of aforesaid, to take the said A. B. and him safe- ly to convey to the gaol at — _ afoi^esaid, and there to deliver him to the said keeper thereof, together with this precept : And we do hereby command you, the said keeper of the said gaol, to receive the said A. B. into your custody at the said gaol, there to 218 mm WtfMM»^^^i>< imprison him for the space of three months, unless he shall in the mean time render « true account of such composition money, under oath> and shall pay, or cause tlie same to be paid, in the manner, and according to the terms and directions of the statute in fiuch case made and provided ; and for so doing, this $hall be your sufficient warrant. ^ ^ < ; <• .v.ji i;< ii,;^;., Given under our hands and seals, &c. ■('■^ Indictment for digging a hole in a 'Street, being the King*s High- teay, C, C. C, <•»!»:; ,aB« i»uiiS6 '.n; Home District, > The jurors, Sec. Thai A. F. late of, Sic. yeoman, to wit. 5 ^^ ^b^> ^^* ^'^h force and arms, at the town- ship aforesaid, in the county and district aforesaid, in a certain street, being the King's common highway there, called yonge- street, used for all the King's subjects, with their horses, coaches, carts and carriages, to go, return, ride, pass, re-pass, and labour, at their free will and pleasure, unlawfully and injuriously did dig, and cause to be dug, a certain pit, containing in circumference fifteen feet, and in depth thirteen feet ; and the same pit so as aforesaid dug and caused to be dug in the street and highway aforesaid, from the -— — day of in the year aforesaid, until the day of the same month, in the year aforesaid, at the township aforesaid, in the county and district aforesaid, unlaw- fully and injuriously did continue ; by reason whereof the King's subjects, during the time aforesaid, could not go, return, pass, re-pass, ride and labour, with their horses, coaches, carts and other carriages, in, by, and through the same street and highway, as they were wont, and ought to do, without great peril and danger of their lives, to the great damage and common nuisance of all the liege subjects of our said lord the King, in, by, and through the same street and highway, going, returning, passing, re-passing, riding and labouring, and against the peace, &c. i^jitom nmw Indictment for stopping up a Watercourse, whereby the Highway is • .. "- overflowed, .«..;- Home District ) The jurors for our lord the King upon their oath to wit. 3 present, that A. O. late of the township '^^ in the district aforesaid, on the .._. day of in the — ._ year of the reign — — .. with force and arms, at the township aforesaid, in the district aforesaid, a certain ancient watercourse adjoining to the King's common highway within the same town- ship, leading from — — to — — with gravel and other materials unlawfully and injuriously did obstruct and stop up, and the said all ia the 1 money, d, in the \ie statute I fhall be yeoman, the town- a certain d yonge- coaches, d labour, did dig, imference pit so as highway aid, until d, at the unlaw- le King's rn, pass, md other iway, as d danger ice of all through passing, ghutay it heir oath township tercourse ne town- materials the said igaHem Coiri^fit* 219 watercourse so as aforesaid obstructed and stopped up from the said ■ ' ■ day of ' in the year aforesaid, until the day of the taking of this inquisition, at the township aforesaici, in the district aforesaid, unlawfully and injuriously hath continued, and still doth continue, by reason whereof the rain and waters that were accustomed, and ought to flow and pass through the said watercourse, on the same day and year, and divers other days and times afterwards between that day and the day of the taking of this inquisition, did overflow and remain in the King's common highway aforesaid, and thereby the same was, and yet is, greatly hurt and spoiled, so that the liege subjects of our said lord the King, through the same way with their horses, wagons, carts and carriages, then and on the said other days and tiroes could not, nor yet can, go, return, pass, ride and labour, as they ought and were accustomed to do, to the great damage and common nuisance, Uc» ifffi' HABEAS CORPUS. If bail cannot otherwise be obtained, the law hath provided a remedy in most cases, by the habeas corpus act, 31 G. 2. the sub- stance of which is briefly this : — If the commitment is for treason or felony, plainly and specially expressed in the warrant of com- mitment ; also, if any person is committed, and charged as acces- sory before the fact to any petty treason or felony, or upon suspi- cion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall he plainly and specially expressed in the warrant of commitment; in such cases the person shall not be bailed on a writ of habeas corpus ; otherwise he may be bailed. — Also, if a person is committed for treason or felony, specially ex- pressed, yet, if he shall in open court, the first week of the term, or first day of assize, petition to be tried, and shall not be indicted some time in the next term or assize after the commitment, he shall upon motion, the last day of the term or assize, be bailed, unless it shall appear to the judge, upon oath, that the King's witnesses could not be produced within that time, and then, if he is not tried in the second term or assize, he shall be discharged. Previous to the aforesaid bailment, the prisoner or some person on his behalf, shall demand of the oflScer or keeper, a true copy of the warrant of commitment, which he shall deliver in six hourSf on pain of £100. to the party grieved, for the first oflencc ; and £200. and forfeiture of his office fur the second : then application is to be made in writ- ing by the prisoner, or any person for him, attested and subscribed by two witnesses, who were present at the delivery thereof to the court of chancery, king's bench, common pleas, or exchequer ; or if out of term time^ to the lord chancellor, or one of the judges ; r 220 Ittattidrfur* and a copy of the warrant of commitment shall be produced befoi'e them, on oath made that such copy was denied : but, if any person hath wilfully neglected by the space of two terms to apply for his enlargement, he shall not have a habeas corpus granted in the va- cation. This being done, the lord chancellor or judges, respectively, shall award an habeas corpus, under the seal of the court, on pain of £500. to be marked in this manner, per statutum iricesimo pri- mo caroli secundi regis, and signed by the person that awards the same, and shall be directed to the officer or keeper, returnable immediately ; and the charges of bringing the prisoner shall be ascertained by the judge or court that awarded the writ) and in- dorsed thereon, not exceeding twelve pence a mile : then the writ shall be served on the keeper, or left at the gaol, with any of the under officers, and the charges so indorsed, shall be paid or ten- dered to him, and the prisoner shall give bond to pay the charges of carrying him back, if he shall be remanded, and that he will not make any escape by the way. This done, the officer shall, within three days after service, (if it is within twenty miles) return the writ, and bring the body, and shall then certify the true cause of the imprisoumeut ; if above twenty miles and less than one hun- dred, then within ten days ; if above one hundred, then within twenty days ; on like pains as before. But, after the assizes are proclaimed fur the county where the prisoner is detained, he shall not be removed : then if it shall appear to the lord chancellor or judges, that the prisoner is detained on a legal process, order or warrant, out of some court that hath jurisdiction of criminal mat- ters, or by warrant of a judge or justice of the peace, for matters for the which by the law he is not bailable, in such case the pris- oner shall not be discharged : if he shall be discharged, he shall thereupon enter inta recognizance to appear on his trial, and the writ and return thereon, and recognizance, shall be certified into court where the trial must be ; but persons charged in debt, or other action, or with process in any civil cause, after their dis- charge for v-^ criminal ofience, shall be kept in custody for such other suit ; and persons so set at large« shall not be recommitted for the same oflence, unless by order of court, on pain o(£500. to the party grieved. HOMICIDE. 'm .,:, H. 1i, it' Homicide in law signifies the killing of a man by a man. 1 Haw. 66. and may be classed according to the following degrees : ,,,,;, 1 — Justifiable homicSue, ,f! ■ \ 2 — Homicide by misadventure, «i»7i?!jtwr i . 3 — Homicide by self-defence, ^, ^.\ bV\i 4— Manslaughter, ^r V. ' ,fi f '-?^- 5 — Murder, , , . • o — oell-niurder. t-m .;».. ed befoi-e y person \y for his 1 the va- lectively, on pain iimo pri' i^ards the tturnable shall be and in- the writ ly of the 1 or ten- I charges twill not II, within turn the cause of }ne hun- n within sizes are he shall pellor or >rder or lal mat- matters he pris- he shall and the ied into ebt, or leir dis- br such nmitted 1500. to 1 Haw. 1. Justifiahh Homicide^ 221 To make homicide justifiable, it must be owing to some una*^ voidable necessity, to which the person who kills another must be reduced, without any manner of fault in himself. 1 Haw. 69. If any evil disposed person shall attempt feloniously to rob or mur- der any person in any dwelling-house or highway, or feloniously attempt to break any dwelling-house in the night time, and shall happen in such felonious intent to be slain ; the slayer shall be dis- charged* 24 H. 8. c. 5. So, if rioters, or forcible enterers or de- tainers, stand in opposition to the justices' lawful warrant and any of them be slain, it is no felony. HaWs. PI. 37. And if a man coihe to burn my house and I shoot out of my house, or issue out of my house and kill him ; it is no felony. Hales. PI. 39. So, if a woman kill him that assaulteth to ravish her, it is no felony. lb. 39. If a person having actually committed a felony, will not suffer himself to be arrested, but stands on his own defence, or flies, so that he cannot possibly be apprehended alive by those who pur- sue hnn, whether private persons or public officers, with or without a warrant, he may be lawfully slain by them. I Haw. 70. So, if a felony hath actually been committed, and an officer having law- ful warrant, arrest an innocent person, and such person assault the officer, the officer is not bound by law to give back, but td carry him away ; and If in execution of his office, he cannot other- wise avoid it, but, in striving, kill him ; it is no felony. 3 Inst. 56. Also, if a person ar ested for felony break away from his conduc- tors to gaol, they may kill him if they cannot otherwise take him. But in this case likewise there must have been a felony actually committed. Hale*s PI. 36. 37. Also, if a criminal endeavouring to break the gaol assault his gaoler, he may be lawfully killed by him in the affray. 1 Haw. 71. In civil casest although the she- riff cannot kill a man who flies the execution of a civil process, yet if he resist the arrest, the sheriflT or his officers need not give back, but may kill the assailant. Hale^s PI. 37. So, if in the ar- rest and striving together, the officer kill him, it is no felony. lb, 37. \n all these cases the party upon arraignment having pleaded not guilty, the special matter must be found ; whereupon the party shall be dismissed without any forfeiture or pardon purchased. lb. 38. 2. Homicide by Misadventure. >./..• Homicide by misadventure is where a man is doing a lawful act without intent of hurt to another, and death casually ensues. Hale's PI. 31. As where a labourer being at work with a hatchet the head flies off, and kills one who stands by. 1 Haiv. 73. Or where a third person whips a horse, on which a man is riding, i '1 ! ! !b. 222 |iroiiiKI9r< whereupon he springs out and runs oyer a child, and kills him, in this case the rider is guilty of homicide by misadventure, and bs who gave the blow, of mtuislaughter. 1 Haw, 73« But if a person riding in the street whip his horse to put him into speed, and run over a child and kill him, it is homicide, and not by mis- adventure ; and if he ride so, in a press of people with intent to do hurt, and *lie horse kilteth another, it is murder in the rider. 1 H. H* 476. If a person drive his cart carelessly, and it runpver a child in the street, if he have seen the child and yet drive on upoa him it is murder ; but if he saw not the child, yet it is manslaugh- ter ; but if the child bad run the cross way, and the cart run over him before it were possible for the carter to make a stop, it is by misadventure. 1 H, H. 476. So, where workmen throw stones, rubbish, or other things from a house, in the ordinary course of their business, by which a person underneath happens to be killed, if they look out and give timely warning to those below, it will be homicide by misadventure ; if without such caution it will amount to manslaughter, at least, if it was a lawful act, but done in an im- proper manner. Fost. 262. 263. If the act be unlawful it is mur- der ; and if a person meaning to steal a deer, in another man's park, shoot at the deer and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder ; for that the act was unlawful although he had no intent to hurt the boy, nor knew of him. But if the owner of the park had shot at his own deer, and with- out any ill intent had killed the boy by the glance of his arrow, this had been homicide by'misadventurc, and no felony. SinsUBQ. Arud it is a general rule in caee of all felonies, that wherever a man intending to commit one felony happens to commit another, he is as much guilty as if he had intended the felony which he ac- tually commits. 1 Haw. 74. Homicide by misadventure, though not felony, yet a person guilty thereof is not bailable by justices of the peace, but must be committed to the assizes. 1 Haw. 75. But if he is taken only on a slight suspicion, the jnstices of the peace nay bail him. 2. Haw. 105. r.mr-ifnj^ , 3. Homicide hy Self'defence. ? itm hmv Homicide in a man^s own defence is, where one who hath no other possible means of preserving his life from one who combats with him, on a sudden quarrel, kills the person by whom he is re- duced to such an inevitable necessity. 2. And not only he, who upon assault, retreats to a wall or some such strait, beyond which he can go no farther, before he kills the other, is judged by law to act upon unavoidable necessity ; but also he, who being assaulted in luch a manner and in such a place, that he cannot go back with- K' iiiKmiKl^r. 223 kills him, nture, and But if a ato speed, ot by mis- ktent to do der. 1 if. runpver a e oik upoa lanslaugb- t rua over »p, it is by ow stones, course oi' be killed, , it will be ill amount s in an im- I it is fur- ther man's V killeth a be act was lew of him. and witli- liis arrow, Sinst.BQ, wherever a t another, lich he ac- a person at must be n only on bail him. uv hath no combats 1 he is re- who upon ich he can aw to act isaulted in >ack with- Otft manifestly endartgering his life, kills the other without retreat- ing at all. 3. And notwithstanding, a person who retreats from an assault to the wall, give the other wounds in hie retreat, yet, if he give him no mortal one till he get thither, and then kill him, he is gtttlty of homicide $e defendendo only. 1 Haw, 15, 4. But if the mortal wound was first given, then it is manslaughter. Hale^s PL 42. 5. And an officer who kills one that resists him in the execu- tion of his office ; and even a private person that kills one who feloniously assaults him in the highway, may justify the fact, with- out ever giving back at all. I Haw, 75, 6. But if a person upon iiialice prepense strike another, and then fly to the wall, and there in his own defence kills the other, this is murder. Hale's PI, 42. A person guilty of this ofience cannot be bailed by justices of the peace. 1 Haw, 76. But otherwise, if taken only on a slight sus- picion. 2 Haw, 105, irtt-r -i, \ r ¥-ry ';yr»>-' 4. Manslaughter. atl By manslaughter is to be understood — 1. Such killing of a mail as happens either on a sudden quarrel, or in the commission of an unlawful act, without auy deliberate intention of doing any mis- chief at all. 1 Haw, 76. 2. The difference between murder and manslaughter is, that murder is committed upon malice afore' thoughtf and manslaughter without malice aforethought, upon a sudden occasion only: as, if two meet together, and st !ving for the wall the one kill the other, this is manslaughter and felony ; and so it is if they had upon a sudden occasion gone into a field and fought, and the one had killed the other, this had been but manslaughter, and no murder ; because all that followed v^zz but a continuance of the first sudden occasion, and the blood was never cooled till the blow was given. 3 Inst. 55, There can be no ac- cessories to this offence, before the fact, because it must be done without premeditation. 1 Haw, 76. But there may be accessories after the fact. 3 Inst, 55, - .. .< <* .-. ; v -. i,u.':.. ^ The punishment for this offence, formerly, was burning in the hand and forfeiture of goods and chattels, for which punishment, that of imprisonment for a year and the imposition of a fine, was afterwards substituted by the 19 G. 3. c. 74. This offence is bail- able by two justices, under the 1 &; 2 Ph, fy M, c, 13. and 3 W, 4. fH f.'Y Vt^f* ' M *^ *-^ - 5. Murd?*"- Murder, is when a man of sound memory and of the age of dis- cretion unlawfully killeth. another under the king's peace, with malice aforethought, either expressed by the pe^rty or implied by 224 JB^tumittt^. law, so as the party wounded or hurt die of the wound or hurt within a year and a day. 3 Tnst, 47. By malice expressed is meant, a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorised. I H. H. 451. the evidences of which are — 1. Lying in wait. 2. Menacings antecedent. 3. Former grudges. 4. Deliberate compassings and the like. 1 H. H. 451, Malice implied is in several cases, as where one voluntarily kills another without any provocation ; for in this case the law presumes it to be malicious, and that he is a public enemy of man- kind. 2. Poisoning also implies malice, because it is an act of deliberation. 3. Also, when an officer is killed in the execution of his duty, it is murder, and the law implies malice. 1 H. H, 455, 456. 457. 4. Also where a prisoner dieth by duress of the gaoler, the law implies malice, by reason of the cruelty. 3 Inst, 52. 5. And in general, any formed design of doing mischief may be call- ed malice ; and therefore not such killing only as proceeds from premeditated hatred or revenge, but also, such as is accompanied with those circumstances that shew the heart to be pervv.*rsely wicked, is adjudged to be of maZtce^r^ense, and consequently murder. 2 Haw. 80. Strange 766. No breach of a man's word or promise, no trespass either to lands or goods, no affront by bare words or gestures, however false or malicious Qnd aggravating* will excuse him from being guilty of murder, who is so far trans- ported thereby, as immediately to attack the pf rson who offends him, in such a manner as manifestly endangers his life, without giving him time to put hinfself upon his guard, if he kills biia in pursuance of such an assault, whether the person slain did at all fight in his defence or !)ot. 1 Ilaw. 82. I£ two fall out upon a sudden occasion, and agree tol fight in. such a field, and each of them go and fetch his weapon, and \Lq one killeth the other — this is no malice prepensed ; for the fetching of the weapon and going out into the field, is but a continuance of the sudden falling out, and the blood was never cooled ; but If there were deliberation — a?, where they meet the next day, — nay, though it were the same diy, if there were such a competent distance of time, that in conmon presumption, they had time to deliberate — then it is murdei'. 3 Inst. 51. 1 H. H, 453. And the law so far abhors all duelling in cold blood, that not only the principal, who actually k.lls the other, but also his seconds, are guilty of murder, whether they fought or not ; and the seconds of the party slain are likewise v^uilty, as accessories. 1 Haw, 82. If a physician or surgeon give a person medicine with intent to cure or prevent a disease, and contrary to his expectation it kill the person — this is no homicide. 1 H. H, 429. But if a W^micUrr* 225 woman be wtlh chilci, and any one give her a potion to destroy the child within her, and it work, and so strongly that it kills the woipiin — this is murder. I H. H. 430. But if a woman, quick With child; by a potion or otiif rwise, killeth it in her womb ; or it* ^ man beai: her, whereby the child di^th in her body, and she is delivered of a dead child — this is not murder, but a great mis- prision. If the (hild be born alive, and then die of ihe potion, battery, or other cause — this is murder. 3 Inst. 50. Lord Hale Mjra, that in this case it cannot be legally known whether the child wer« killed or not ; and that if the child die after it is born tmd baptised, of the stroke givea to the mother, yet it is not boinicide* 1 H. H. 433. And Mr. Dalton says, whether it die witbia her body, or shortly after her delivery, it maketh no dif- ference. Do/r. 330. But Mr. Hawkins says, that (in the latter cue) il seems clearly to be murder, notwithstanding some opinions to the contrary. I Haw. 80. And if a person counsel or advise a woman to kill her child when it shall be born, and she afterwards kiH it, in pursuance of such advice, he is an accessory to the murder, i Ifatir. 80.; and by 3 W. 4. c. — ^12. accessories before the fiKt to any capital offence shall suAer death. Ttiey that are present when any man is slain, and do not their best endeavour to apprehend the murderer or manslayer, shall be fined und imprisoned. 3 Inst. 53. Where any person shall be feloniously stricken or poisoned in one county, and die in another county, the offender may be indicted in the conuiy where the party dies. 2^3 Ed. 6. c. 24. ^ 2. ; and where a murder is com- mitted in one cotinty, and a person is accessory in another county, be may be indicted in the county where he was accessory, on certificate of the conviction of the principal in the county where he committed the murder. ^ 4. Sentence, in case of murder, shall be pronounced in open court, immediately after conviction, unless the court shall see reasonable cause for postponing the same. 25 G. 2. c. 37. ^ 3. — See further on (his subject under title ** Conviction" ,vca--,VKf> 6. Self Murder. ' ' ^ 'i\n--l ii A felo'de-se^ or felon of himself, is a person who being of sound mind, end of the age of discretion, voluntarily killeth himself. 3 Inst, 54. 1 JFf. i7. 411. The offender herein incurs a forfeiture of goods and chattels, but not of lands ; for no man dan forfeit bis land without an attainder by course of law. 3 Inst, 54. He> shall also be buried ignominiously, in the highway, with a flake driven through his body. 4 Bh 190. ^(,i b » .s }■ ■■-• \ 'ii\ f .) -^T?rsif» ?''. «,';• * ■jy^r*.^ .f^i■.:i'-im •.>? *226 KoYvriot* i-3i.-j- N «*'-«iTv> The stealing of a horse is felony at common law, and is punishable by imprisonment or banishment. 1, By tlie 2 &; 3 P. ^ M. c. 7. and 31 El,c. 12. The keeper o: every fair and market shall yearly appoint a certain special and open place where horses shall be sold in any fair or market overt. 2. A.n6 shall appoint one or more persons to take toll there« : and to keen the san.e p]ace from ten in the forenoon till sunset. 3. And the sale or exchange, in any fair or market overt, of any stolen horse shall not alter the property, unless the same shall be in the m^jltiotmn: ^7 s>ff«iJ; •' :e8 of the tstable of le keeper the said Majesty's r the said rged this — ««• and — in 'the oniously, irder oue ind upon y of him of which 1 you the ,. Bu into safely to 'law. 183—. h ill the district, kill and en lately iame ;. of ird child, inishable leeper or cial and et overt, ere, ; and 3. And y stolen )e in the time of the said fair or market openly ridden, led, walked, driven, or kept standing, for one hour together at least, between ten of the clock and sunset, in the opon place of the fair or market wherein horses are commonly used to be sold, and not within any house, backside, or other privy or secret place. 4. Nor unless all the parties to the bargain shall come together, and bring the horse to the open place appointed for t!ie toll-taker, or for the book-keeper, where no toll is due. '. Nor unless such toll-taker, or (where ho toll is paid) the book-keeper, or chief o(ficcr of the fair or market, shall take upon him perfect knowledge of tiie seller, and of his true ' christian name and surname and place of abode, and shall enter all Ihe same down in a book to be kept for that purpose, or else that the seller shall bring to the toll-taker, or other officer aforesaid, one credible person that shall testify that he knoweth the seller, and his true name, surname, mystery and dwelling place, and '< there enter the same ; and also the name, surname, mystefy and dwelling place, of him that so avoucheth his knowledge. 6. Nor less he also cause to be entered the true price. 7. And also the colour, and one special mark at least. 8. And the buyer shall pay the toll, if any is due, if not, then Id. for the entry. 9. Which done, the person entering the same shall give to the buyer, requir- ing, and paying 2d. for the same, a note in writing of all the con- tents of such entry, subscribed with his hand. 10. Kvery person oflending in any of the premises shall forfeit £'6 ; half to the king and half to him that shall sue before t'.ie justices in ses.sions, or in any ordinary court of record ; and the sale shall be void ; and the owner may seize and take his horse again, or have an action. '■'And if any horse shall be stolen, and shall aflerwards be sold ' ii^ open market, and the sale shall be in conformity with the above provisions, yet, nevertheless, such sale, in six months after the felo- ny done, shall not t^ke away thie owners property, so as claim be made in six months, where the horse shall be found, before the mayor, if in a town corporate, or else before a justice near the place where found, and so that proof be made before such magis< trate in forty days next ensuing, by two witnesses, that the property in such horse was in the party claiming, and was stolen from him within six months next before such claim ; but the party from whom the same was stolen may at all times after, notwithstanding such sale, take again the said horse, on payment, or readiness to offer, to the party who hath possession, so much as he shall swear, before such magistrate, that he paid for the same. By the 22 U 23 Car. 2. c. 7. When any person shall, ih the night, maliciously kill or destroy any horses, he shall be guilty of felony, and may be transported, by three justices in sessions, for •even years. 2. And if any person shall, in the night time, mali- I i 228 n^unt of Covvrcti jn., $ct. clouily wound or hurl any horses, he shall forfeit to the p^rty grieved treble damages, to be recovered by action at law, or be- fore three justices. By the 33 0» 3. c. 2. ^ 6. The pound-keeper is directed to im- pound any stoned horse, more than a year old, running at large, until (he owner shall nay 20s. ' , Warrant to apprehend a Horse Stealer. — (Toons.) To Constable of District, ) Forasmuch as A. B. of in the said district, to wit. > yeoman, hath this day made information and complaint upon oath before me, J. C. esquire, one of his majestyU jnstices, &c. that yesterday, in the night, a bay mare, the property of him the said A. B. was feloniously stolen, taken, and carried away, from and out of the grounds ti bim the said A. B. at ' aforeisaid, and that he hath just cause to suspect, and doth suspect, that C. D. late of ...— . labourer, did feloniously steal, take, and carry away, the said mare : these are therefore to command void forthwith »o apprehend him the said C. D. and bring him beu>re roe, to answer to the said information and complaint, and to be further dealt with according to law. Herein fail you not. Oiven under my hand and seal, this •-— — day of—— — ^^^^^ l:!:tP:2 house of correction* ^:?^ J/! By the 50 G. 3. c, 5. it is enacted, that until houses oif correc- tion shall be erected, the common gaol in each of the districts shall be a house of correction ; and that all idle and disorderly persons, rogues, vagabonds, and incorrigible rogues, or any persons by law subject to be committed to a house of correction, shall be committed to the said common gaols ; any law or usage to the contrary. w., . HUE AND CRY. ■wne.-Ahih- Hub and cry is the old common law process after felons, and such as have dangerously wounded any person. 2 H. H, 98. If the person against whom the hue and cry is raised be not found in the constablewick, then the constable shall give notice to the next constable ; and he to the next ; until the offender be found, or till they come to the sea side. 3 Inst* I16< And the o$icer of the town where the felony was done, as also every officer to whom the hue and cry shall come, ought to send to ^yery other town round about him, and not to one next tomi only. Dalt, VI • ♦ l&tte «wtr ettt. ^ t29 «. 54. By statute 3 Ed, 1. c. 9. all shall be ready and apphrelled at the commandment and summons of sheriffs ; (or constables. 2 Imt, 171.) and at the cry of the country to sue and arrest febns, on pain of a grievous fine; and they which levy not hue and cry, or pursue not hue and cry, may be indicted, fined and imprisoned. 9 2niU 117. Warrant to levy Hue and Cry. (Burn.) '»Y To all c( istables, and other ofiicers, as well in to whom the .. i...:^ , .. . . ^ To all c( istables, and other ofiicc i— — District. > the said district as elsewhere, J execution hereof doth belong. Wh«reaf A. J. of in the said district hath this day made infoi'mation upon oath, before me, J. P. esq. one of bis Majesty's justices of the peace in and for the said district, that on this present ■ day of in the — — year of the reign of our sovereign lord I^ing •— — betwixt the hours of and i " in (he afternoon of the same day, at a place called --*-> in the said districti in the King's highway, ther^j two malefactors and felpiis, to him the said A. J. unknown, in and upon him the said A« J* then and ther? beingt in the peace of God and of our lord, ^be King, feloniously did make an assault, and him the said A. J. then and there feloniously did put in great fear and danger of his life ; and the nuvfi of ' ' of lawful money of Upper Canada, of the monies and property of him the said A:, J. from the person, amj against the will of him the said A.. J. then and there violently and fi^lbniously did steal, take, and carry away ; and that one of (he malefactors and felons aforesaid [is a tall, strong man, and ceemeth to be about the age of ' years ; is pitted in the face with the siQall-pox ; and hath the scar of a wound under his left ^ye ; and had then on a dark brown riding coat, &lc* and did ride upon a bay gelding, with a star on his forehead ; and the other, &c.] and that after the said felony and robbery committed, they the said malefactors and felons, to him the laid A. J. unknown, did fly, and withdraw themselves to places unknown, and are not yet apprehended : These are therefore to command you, forthwith to raise the power of the towns within your several precincts, and to make diligent search therein for the persons above de- scribed, and to make fresh pursuit, and hue and cry, after them« from town to town, and from county to county, as well by horse- men as by footmen, and to give due notice thereof in writing, describing in such notice the persons and the ofience aforesaid, unto every next constable on every side, nntil they shall come to the sea shore, or until the said malefactors and felons shall be ap- prehended; and all persons whom you, or any of you, shall. I' 230 Iftiirrcrnro. ' as well upon such search and pursdit ns otherwise, apprehend, or cause to be apprehended, as justly suspected Tor having committed the said robbery and felony, that you do carry forthwith before some one of his said Majesty's justices of the peace in and for the district where he or they shall be so apprehended, to be by such * justice examined, and dealt withal according to law : and hereof fail you not, respectively, upon the peril that shall ensue thereon. Given under my hand and seal, at — — in the said district, the —— day of —— In the year aforesaid.- ^ ,.-... ".' v»d ,uot.iujt)ii' i)L INDECENCY. sv jiic jwiriltt All open and gross indecency, is a misdemeanor at common law, and is indictable, not only as a nuisance to the rest of the com- munity, but as being injurious to public morals. 2 Str, 790. 4BI, Com. 65. It is an indictable offence for a man to undress himself on the beach and bathe in the sea near inhabited houses. Jt. v. Crumden, 2 Camp. 89. This offence is punishable by finei 0|r imprisonment — or both. ^ „ii.vU Indictment against a Man^ for publicly exposing his naked person*. (AnCHOOLD.) '.y w-i Home District, > The jurors for our lord the King upon their to wit. S oath present, that J. S. late of the township of ■■ in the county of ■ in the heme district, labourer, being a scandalous and evil disposed person, and devising, contriving, and intending, the morals of divers liege subjects of our lord the King, to debauch and corrupt, on the — - day of in the year of the reign of our sovereign lord William the Fourth, at the township aforesaid, in the county and district aforesaid, on a certain public and common highway there situate, in the pre- ' sence of divers liege subjects of our said lord the King, and then and there being, and within sight and view of divers other liege subjects, through and on the said highway then and there passing and re-passing, unlawfully, wickedly and scandalously, did expose to the view of the said persons so present and so passing and re- passing as aforesaid, the body and person of him the said J. S. naked and uncovered, for a long space of time, to wit, for the space of one hour, to the great scandal of the said liege sul^ects of our said lord the King ; to the manifest corruption of their morals ; in contempt of our said lord the King, and his laws ; to the evil example of all others in the like case oflending ; and . against the peace of our lord the King, his crown and dignity."^'' Xn)ifUitt0» Ht* 231 '.>!«'• .!»«*< '♦••'*».•■ INDIANS, trlft HI .ii^'»3 ihm liAAtf llfi'W By an ordhiancc or the late province of Quebec, passed in llie 17 0, 3. c. 7. entitled, "an ordinance to prevent the selling of strong liquors to the Indians in the province of Quebec, as also to deter persons from buying their arms or clothing, and for other purposes relative to the trade and commerce with the said In- dians"— -it is enacted, that no person shall purchase, or receive in pledge, or in exchange, any clothes, blankets, fire arms or am- munition, belonging to any Indian or Indians/under the penally of £5t and imprisonment not exceeding one month, for the first offence; and of XlO, and imprisonment, not exceeding two months, for every subsequent offence; to be recovered by information before one or more commissioners of the peace of the district where the offence shall be committed, upon the oath of one witness, (other than the informer) and to be levied with costs, by warrant to seize and sell the goods and lands of the offenders, provided that such informations shall be brought within six calendar months from the time of the offence. By imperial statute 43 G* 3. c. 138. all offences committed within any of the Indian territories, not within the limits of this province, or of the United States, shall be tried in the same man- ner, and subject to the same punishment, as if the same had been committed within this province. By 41 Gf. 3. c. 8. any person selling o;; bartering any rum, brandy, whiskey, or other spirituous liquors, within the tract occupied by the Moravian Indians, in the township of Oxford, on the river Thames, in the western district, shall be convicted in the s»me manner, and subject to the like penalties, as persons selling spirituous liquors without license. By 4 Gf. 4. c 20. ii* any person shall buy, or receive from any Indian, or employ any Indian, to catch any salmon, during cer- tain prohibited periods, (viz. between the 10th November and the 1st January) he shall, upon conviction before any two justices, upon the oath of one witness, be subject to the penalties of the 2 G. 4. c. 10. By the 4 G, 4. c. 8. entitled "an act to make permament, and extend the provisions of the laws now in force for the establishment of common schools," &ic. the provisions of this act, and of the 56 Gf. 3* c. 36. shall extend to the Indians. <§< 5. • >■' -?i^^ ■■ INDICTMENT. The venue must appear in the margin, and be iaii in the district where the offence was committed. ^ * ,. ' *■ -■ tVr« *L? - ; tm 332 )intii€lnirsil# Every indictment must hav« a {precise and Buffici«nt certainty, otherwrse, the defendant may demur, move in arrest of judgment, or bring a writ of error, li^ v. Maion^ 2 T, R» 681. It sbeuld state the facts, circumstances, and intent with which the actis e^n-* mitted, with the time and place, without any repugnaikcy or iiii<* certainty, and in terms direct and positive. No part of the indict* ment must contain any abbreviation, or express any number «r date in figures. 2 Ha/e, 170. 4G,2,c,26r 6 6. 2. c. 6w Tbn only exception is, in cases of forgery, libel, and sending « thttnt- ening letter ; in either of these cases a fac-simile of the inttrniMnt must be set out, with all the figures and abbreykitions« as in Uw original instrument. R. v. Mason, 1 East. 180. The chriMian and surname of the defendant must be stated, with his nddition, state and degree, and the place where he is known. If it be doubtful which of two names is his real surname, be may be4c»* cribed with an alias dictus, as George Jiac^xon, elherwiie csAled George Johnson, Where the pN|Dner's name is not linowo« and he refuses to discover it, he ma^thefSbe described as a person whose name is to the jurors unk^iifrwn, but who is persoMiHy brought before the jurors by the keeper of the prisoner. JZtiM* if Jly. 489. The addition should be given after the first nanie> and not after the alias dicttts. 2 Inst. 699. : though this defect is cnred by the defendant pleading to the indictment. 1 Ijeaeh, 420. In indictments for felony, if the property be stolen oat of the possession of a bailee, it may be described as the property ekher of the bailor or bailee. 2 Hale, 181.: therefore, goods entrusted to a carrier, a tailor, or a laundress, may be laid at the property of the person to whom they are so «ntru8ted, or of the real owner, m the option of the prosecutor. 2 Hale, 181. 1 Leach, 366. - Clothes or other necessaries furnished by a father to hid child, may be laid to be the property of the father, if the child be of ten- der age. 2 East, P, C. 654. But where the chik) is old enough to acquire property, they must then be laid to be the property of the child. Where the goods are stolen from a married woman, they must be laid to be the property of her husband. The gpoods of a deceased person must be laid as the property of his executor or administrator. Of a corporation, as the property of the corpo- ration, in their corporate name. 2 East. P. C 1059. 'c- Where the party injured is unknown, or does not come forward, he may be described as < a certain person to the jurors unknown.* 2 Hale, 181. : but if it appear in evidence that his name is known, the defendant will be acquitted. 2 East, P, C, 651. 781. The time stated should be a day certain, that is, the day of the month and year upon which the act is alleged to have been com- mitted : the year of the king's reign is usually stated, but the year Stitrittmrnt. U!^ oii our Lord is equally good. A mistake in Uie day and year will not in general vitiate the indictment. 1 Sttllc, 287. But upon some deeacionft the time is material ; as, in the case ot murder, when the indictment must lay the time of the death withim a year and a day after the mortal stroke. Fost. 249. Bl. Com, 306. So, in an in- ■ dietment for bigamy, it is necessary to state, with correctness, the time of the second marriage, and to aver that the first wife was alive at the time: the dates of all written instruments roust likewise be truly stated : the place at which the alleged offence was committed OMMt atbo be stated : but though the place should be laid with cer- tainty iaetatement, it is not necessary to be laid according to the trath ; and a variance ' n this respect will not be material, provided the place proved be within the district, except where the place stated is matter of local description, as in describing the situation of a bouse in the case o{ burglary or arson. '■' /^i«ut^ilfi^ii An indictment for stopping up the king's highway, must shew what particular part was stopped up. Show, 389. In larceny of written instmments, it is sufficient to describe them in a general manner, as, * one bank note for the payment of £5, and of the value of £B: 2 EcuU P- C, 602. 777. And in an indictment for embeuling several bank notes, it is sufficient to daicribe them as *■ nine bank notes, for the payment of divers sums of money, amounting in the whole to £9.' without specifying the amount of each particular note. R, v. Johnson, 3 M, fy 'Si. 689. » »" s'* With respect to personal chattels, they must be described with certainty, and by the names usually appropriated to them, and the number and value of each species or kind of goods, as, * one watch of the value of 20s, or, one sheep of the price of 20«.* : if * twenty wethers and ewes* were stated, the indictment would be bad for uncertainty, as it should specify ho\r many of each. 2 Hahf 182* 183. Where any live animal is mentioned in an indictment, and It turns out to have been dead when stolen, the defendant must be Acquitted. Jt. v, Kollowayt 1 C. "- P. 128, /?. v, Edwards^ R. fy ft, 497. Money is described as so many pieces of the current gold or silver coin, of the vnlue called sovereigns or shillings, as the case may be. A variance in the number of articles, or in their value, is immaterial, if the value proved be sufficient to cotiiititute the offence in law : so, if there be ten different species of goods enu- merated, and the prosecutor prove a larceny of any one or more of a sufficient value, it will support the indictment, though he fail in .'his proof of the rest. The indictment is bad for uncertainty, if it charge the defendant • in the disjunctive with one or the other of two offences — as that he murdered, or caused to be mtirdered ; that he forged, or cati?ed ' to be fiH'ged. 2 Uatv, c. 25. ^ -58. Or if it charge him in the dis- m 234 SiOiirtttfcuti i: junctive— ;as ihat* being the servant or deputy of A. B. he tvahetn zled certain property. 2 Rd. Rep. 263. The indictment must not in any one count charge the defendant with having committed two or more offences. But it seems that a defendant may be indicted for the battery of two or more persona, in the same count, if committed at the same time. 2 Burr, 994.'^-* The court will in general, upon application, quash an indictment for duplicity ; but it seems doubtful whether it can be taken advani. tage of in arrest of judgment, or by \vrit of error. . > i Where one part of the indictment is repugnant to another,: the whole is void — as when the indictment charges the prisoner withi forging a bond, by which J. S. Wi'S bounds for this fact wou1d< be impossible, if the instrument were forged. 2 Haw, c, 25. ^ 62. But in all cases where any fact or circumstance is stated in an indictment, which is not a necessary ingredient in the offence, it may be rejected as surplusage, and need not be proved; and if there be anj' defect in the mode of stating such matter, it v/ill not vitiate the indictment. 4 Co, 41. a. 5 Co, 121. 6. 12. v. Uowarihe, 3 Str, 26. . ■.'-•»M.'-.*'","fc> ''i^^- " ■ -,.^"'. All indictments for offences at common iaiv mnst coucluoe, " against the peace of our said lord the king," for the late king,} as the case may be ; and an indictment for an offence at common law concluding, against theybrm of the statute, would be bad. HV Where a statute creates an offence, or makes an offence at com- mon law one o( a higher nature — as where a misdemeanor is made felony — the indictment must conclude ** against the form of the statute." -M. «n*iit^ J'^^hl ■ r^^ Where several persons actually join in th ecommission of the same felony, they may be indicted either jointly or separately.^' 2 Hahf 173. But where the offence is in its nature several and distinct, each defendant must then be indicted separately. The consequence of a misjoinder of several defendants is, that application may be made to the court to quash the indictment.— R, V Kingston, 8 East, 41, The same defendant, also, ought not to be charged with diffe- rent felonies, in different counts of an indictment — as a murder in one cAunl, and a simple larceny in another ; or a burglary in the house of A. in one count, and a burglary in the house of B. in another. In the first case, the objection is fatal on arrest of judg- ment,' or in error, because the judgment is different for the two offences. In the last case, if the objection is made before the de- fendant has pleaded, or the jury are charged, the judge may, in his discretion, quash the indictment ; and though it be not made till after the jury are charged, the prosecutor may still be put to his election for which offence he will proceed. But this last misjoinder Kn^ittntrntv 235 embez^i fendant ms that persons 994.-^ ictraent advan-i [ler^ the er with) ouId< be 62. d in an encc, it and if //ill not iicludc, ■' kingj' Dntmott^ )ad. ' It com- s made of the of the al and i8» that lent.-— I difie- dtr in in the B. in le two le de- in his de till to his )indcr \'. is no ground to arrest the judgment, the ofience being of the lame species, and for which the judgment is precisely the same. The 8aim felony, however, may be charged in different ways in several counts, in order to meet the facts of the case as they may come out in evidence — thus: if it be doubtful whether the liouse in which a burglary is committed belongs to A. or B. it may be stated in one count to be the house of A. and in another count the house of B. ; and the like in an indictment for a larceny of goods, where it is doubtful whose property they are. 2 B, &f P. 508. In misdemeanors, it is no objection to an indictment, that it con* tains seteral charges, provided the judgment is the same. 3 T. R. 98. 106. 8 East. 46. 2 Burr. 984. R. v. Jones, 2 Camp. 131. .<* s r^i b . Of the Finding hy the Grand Jury. -A The names of all the witnesses who are to be examined before the grand jury, should be indorsed on the bill of indictment, and the witnesses must be previously sworn by the officer of the court. The evidence is gone through by the grand jury in the order in which the names of the witnesses appear o\\ *he back of the bill ; and if a majority of the grand jury, consisting of twelve at the least, agree in thinking there is sufficient evidence to put the de- fendant on his trial, they endorse on the bill of indictment a ' true hi'? : but if the majority think there is not sufficient evidence, or ii'-.i ^ majority (if a number less than twelve) should even think ' . ^ U, then the words * no bilV are endorsed. The bill of indict- ment is then returned publicly into court, by the foreman of the trrand jury ; and if the indictment is found, (for it is previously in law only termed a bill) the prisoner is arraigned in due course and put upon his trial. The grand jury may insist upon the same strictness of proof as is required on the trial, though it is not usual to do so, nor to weigh the evidence with that degree of scrutiny with which it is afterwards sified by the judge and jury. They are to hear evi- dence only on behalf of the proseouiion; for the finding of an in- dictment is merely in the nature of an inquiry or accusation, which is afterwards to be tried and determined : and their duly in this respect, is solely to inquire upun their oaths, whether there be suf<> ficient cause to call upon the party to answer it ; they are therefore not to try the prisoner, but merely to determine whether the cvi«> dence against him is of such a nature us to render necessary a more formal investigation into the fact of his iunocencc or his guilt ; but they ought, nevertheless, to be tlioruughly persuaded of the truth of the indictment, as fur as their evidence goes, and nut to rest satisfied merely with rcn)oic probabiiitiet:, a doctrine, that Black- 230 ivcnimnt He ttor^. gtone rightly observes, might be applied to very oppressive pur- poses. 4 Bl. Com, 303. Wliere there is only one count in the indictment, the grand jury cannot find ' a true hiW as to part, and * not a true bill* as to other part ; for they ought to find the whole or nothing. 1 Hate, c, 64. ^ 40. 2 Td, c, 25, ^ 2. But where the indictment contains two counts, as one for a riot, and one for an assault, they may then re- turn a * true bilV as to one count, and ignoramua as to the other. R. V. Fieldhouset Covyp, 335. But where the evidence bears tip- on all the counts, and the oSence is only stated in a different form, it is better to find the whole bill, than to elect one count,^and ig- nore the others, since it is possible, that the prosecution upon trial might fail upon the one so elected, and might have succeeded upon one of those ignored. When a bill is thrown out by the grand Jury, it cannot again be preferred to the same jury during the same assizes or sessions ; but it may be preferred at the next assizes or sessions, if the prosecutor is not prevented by any lapse of time limited for the prosecution. It is improper to prefer two bills alt the same time, for the same offence, before the grand jury, thait is to say, one bill treating the offence as a felony, and the other as a misdemeanor : but after a bill for felony has bee. ken bv a complied required 1 it is ad- )on oaili. :eedings, ind place re whom evlien the are seve- 403. lie subse- »r supply id of the mt of re- ivideucc. le defen- ■fence to icified ii) nly to a m taken informa- mistake m. 1 T. ly by in- iiless the l^ing the tr grant- l. And 677. ^istraies, offence no ; but ind term gainst it a rule iractices erm. 7 Knm antf Sniis^lteriirri^. ^239 The following is the form of an information, at the suit of an informer, where he is entitled to a portion of the penalty, only ; or, as it is usunjly termed, an-— -iKHV'VPff t'l^wu nun- -. . ,^ . : Mi-fc ao niH 'If r vcf ^'n>' " Information qui taih. (Abohbold.) bv : •:-^ 'f >'f . District > Be it remembered, that on the —— day of— — to wit. 5 *" t''c y^^^ of our lord — — at r in the said district, C. D. of in the district aforesaid, constable of the said township, who, as well for our sovereign lord the King as for himself, doth prosecute in this behalf, personally cometh before me, [or us] — — of his Majesty's justices of the peace for the said district, and as well for our said lord the King as for himself, informeth me, [or m"] that A. B. late of in the district afore- said, labourer, within the space of [one year ; or whatever time is limited by statute"] now last past, to wit, on the — — day of — — in the year aforesaid, at ■ aforesaid, in the district aforesaid, [here state the facts and circumstances constituting the offencct as defined hy the statute creating it] contrary to the form of the statute in such case made and provided ; whereby, and. by force of the statute in such case made and provided, the said A. B. hath forfeited, for his said offence, the siim of ■ Wherefore, the said C. D. who sueth as aforesaid, prayeth the consideration of me [or us] the said justice, in the premises, and that xhe'said A. B. may be convicted of the offence aforesaid; and that one moiety of the said forfeiture may be adjudged to our said lord the King, and the other moiety thereof to the said C. D. according to the form of the statute in that case made and pro- vided ; and thui. the said A. B. may be summoned to appear before me, [or us] and answer the premises, and make his defence thereto. Exhibited before . *' : CD. NoTis. — It should be observed, as a general rule, that in all informations for pentititBf wherein the informer is interested, by reason of his being entitled to a part of thd penalty, upon conviction, he cannot be a witness. The information, therefore, should not be upon oath ; it should be merely subscribed by theiniormer; and the facts must be proved by other testimony. y.- INNS AND INN-KEEPERS. Every inn is not an ale-house, nor every ale-house t>n inn ; but if an inn uses common selling of ale, it is then also an ale-house ; aud if an ale-house lodges and entertains travellers, it is also an inn* I Burn, p. 22, It was resolv'd by all the judges, that any person might erect an inn to lodge travellers, without any license or allowance for such erection. Dilt. c» 56. BlacJcerby, 170. But if an inn use the trade of an de-house, as almost all inn- ; f Ji m I I / -a tL iU m miS ^ . 240 Xtim adiH ftntiftKrrvtrii. keeper* do, it shall be within the statutes made about ale-houses; Dalt. 133. Any inn-keeper suffering any inhabitant in any city or town, &ic. to continue drinking, tippling tlierein, (except such as be invited by a traveller; and except labourers and handicraftsinen, upon working days, for one hour, at dinner time ; and except labourers lodging at such inn ; and except for urgent occasions ; to be allowed by two justices) shall forfeit 10^. to the poor, upon conviction before one justice, on the oath of one witness. 1 J. c. 0. ^ 2. 1 C. c4. 21 J, c, 7. ; to be levied by the constables or churchwardens ; and for default of satisfaction in six days, the distress to be appraitfed and sold ; and for want of distress, the offender to be commilied to gaol, until the penalty be paid. 1 J. c. 9. ^ 3. ; and thall be disabled, for the space of three years, to keep any such ale^hoMe. 21 J. c. 7. ^ 4. And if any person (except as above, 1 X «. i.) shall continue drinking or tippling in any inn or ale^hotite, &£c. he shall, on conviction before the mayor, or a justice of the peace, on view, confession, or oath of one witness, forfeit for every offence 3i. 4d. to bo paid witbin one week next after such con- viction, to the churchwardens, for the use of the poor; and if he shall neglect, it shall be levied by distress ; and in defa/alt of dis- tress, the court may order the offender to be set in the stocks .(or ^ the space of four hours. 4 /. c. 5. % 4. c. 9. 21 J. c, 7. 1 C. c. 4. And if any ale-house keeper shall be convicted of tippllog, he shall moreover, for the space of three years, be disabled to keep any such ale-house. 7 J, c. 10. 21 J. c. 7. ^ 4. • Every person who shall be drunk, and be convicted thereof before one justice, on view, confession, or oath of one witness, shalU forfeit for the first offence 5s. to be paid within one week after conviction to the churchwardens, for the use of the poor,; or levied by distress ; and in default, he shall be committed to the stocks for six hours. 4 /. c. 2. ^ 2. 21 J, c, 7. ^ I. 3.; and after a second conviction, the offender shall be bound, with two sure- ties, in ajClO recognizance, with condition to be from thenceforth of good behaviour. 4 J. c. 6, ^ 6. 21 J. c, 7. % 3. If amy ale-house keeper shall be convicted of being drunk, he shall, be- sides the penalties, be utterly disabled to keep any such ale-house for the space of three years. 7 J. c. 10. ,;J4 Detaining Good$ for the Reckoning, 'P^i»l«^ An inn-keeper may detain the person of the guest who tatSt or the horse which eats, till paymentt Bae. ahr^ Innt» But a horse com.n'ttiid to an inn-keeper, may be detained only for kisoivn mi\ iri not for the meat of the guest, or of any other horse. hotttet; ivn, &tc. ted by a ?orkiog lodging twcd by I before C.C.4. ns ; and jpraittd nmilMd •hall be B-hoMe. /. «. i.) me, &KC. le peace, ir every ich con- nd if he t of dis- ;ock«.(br 1 C. r. ippliog. abled to thereof witness, ne week )Oor, or to the ind after vo sure- nceforth If «f»y mil, be- e-house eats, or t a horse bis own it horse. Mb* t Biilse. 207. An inn-keeper that detains a meal, cauiiot use him. Bac. Abr. Inns. 241 horse for his 4> Ooods of a Quest Stolen out of an Isn. ', Atf inn-keeper ^s answerable for those things which arc stolen witbia the inn, though not delivered to him to keep, and though he was not acquainted that the guests brought the goods to the ion ; for it shall be intended to be through his negligence, or uc- caiiooed by the fault of him or his servants. 8 Co. Caley^s case. SOf if be puts a horse to pasture without the direction of his guest, wad the horse is stolen, he must make satisfaction ; but olherwist:, if with his direction. Ib» In like manner, if an inn-keeper bids bit guest take the key of his chamber and lock the door, and tells kim that he will not take charge of the goods, yet if they aru stolen, he shall be answerable ; because he is charged by law for all tb^ngs which come to his inn ; and he cnuMot discharge himself by such or the like words. Dalt. c. 56. A person is a guest who merely leaves ais horse at an inn, as muc!i n- '^ he had staid himself, because the horse must be fed, by which tiie iiin-keeper has gain ; otherwise, if he had left a trunk, or a dead thing. I Salk. 2SS. n By an ordinance of the province of Quebec, 28 G. 3. every ptrson taking out a license for the purpose of retailing v/ine, he. sImiII iBDter into a bond, with sufficient sureties, to keep an ordt'rly and decent boose. V By the 35 G. 3. c. 13. % 3. the words '^licensed to ull nine and other spirituous liquors^*' shall be written, painted or printed, over the door of such house of entertainment, under the penahy of Ss. ^4. And persons taking out a license, shall en'.er into a j£lO bond to the King, well and truly to keep a decent and or- derly house. ^ 5. And pay 2s. Bd. for the license and 2s. 6d. (or the bond* ..> . >w *- ^ By the 34 G. 3. c. 12. ^ 2. no license shall be grahted fof ^n inn or public house, unless the person applying shall first have a certificate of his being a proper person, from the magistrates of the division where he resides, or is about to reside. All licenses otherwise granted, shall be void. Sec. 3. (Repealed by 59 G. 3. c* 2.) Sec. 4. No certificate to obtain such license shall be granted to any person not previously licensed, without a testimo- nial of good character, under the hands of the parson and church dr town wardens, or of four reputable and substantial house- liolders, and inhabitants of the division where the said inn or pablic house is to be kept ; and that he has taken the oath of -.• !tt »»ft .'[■*.• Q ii ! ^M: ,U42 unm nM ikmifMitpitn^ allegiance. Sec. 5. Such liceiiM may be afterwardi aisignedt upon the parly dying or removing, by an endorsement on the bMk thereof, executed in the presence of a magistrate ; and the as- signee, within thirty days after such d«ath or removal, obtaining testimonial as aforesaid, to be produced at the next division meet- ing, otherwise, at the expiration of such thirty days, license to be void. Sec. 6. Every person obtaining such certificate, shall enter into the recognizance required by the 33 G. 3. c» 13. to be trans- mitted to the clerk of the peace of the district, to be filed; and a list of persons under such recognizances, shall be laid before the quarter sessions next ensuing the 5th April, yearly; and upon complaint made of such recognizance being ff>«'feited, by an act of misdemeanor, any one justice may summon the party to appear at the next quarter sessions, and bind over the party making the com- plaint, and the misdemeanor charged shall he tried by a jury, and if a verdict of guilty be given, the justices shall estreat such recog- nizance into his Majesty's court of king's bench, and theofiendcr shall be disabled from holding a license for three yearf*>!ii^MJ^ Wdd v^nfi ! Form of a Warrant to a Constable^ to give Notice, jo? ftteif i^ To the high constable, or other peace officer of this district* \i Home District, > In pursuance of the act in such case made and Division. V provided, you are hereby required to give no* tice, in the most public manner, to all licensed inn-keepers or keep- ers of public houses, and also to all persons unlicensed, who do intend to offer themselves to be licensed at the next general meeting of the said justices, for that purpose, within this division, thai they do personally appear before the said justices, at the ■ ' on the - " '■ at — — — hour of the forenoon of the same day, to take o*^ re- new their licenses for the year ensuing; and also to give them nor tice, that every person to be licensed must personally enter into a recognizance of ten pounds, before the clerk of the peace of the district, together with two sureties in five pounds each, that ihey will not use or suffer any unlawful games, and that they will keep good order and rule within their respective houses ; and if he, she or they, shall be hindered, by sickness or other reasonable cause, to be allowed by the said justices, that be, she or they, must procure two sureties, to be then and there bound in the like manner in ten pounds each : and unto such persons as have not been licensed for the year preceding, 3'ou are further to give notice, that no license will be granted to any of them, unless every such person shall also« at the same time and place, prodi^ce a testimonial, should the same be required by the justices, under the hands of the minister and church or town wardens, or otherwise, of four reputable and sub- Xnti0 untr fttiHsicmif r0» 243 ttMtt'uil -householders of the division, setting forth that he is of good fame and sober life and conversation, and ns they believe, a good tnbjeet of our lord the king, having taken the oath of allegiance; Hereof fail not. Given under our hands this — — day of— in the year of our Lord . •*^' A. B. > Justices cf the peace for (»i.ii.i i,..tf v-i,».i' Ct D. 5 the said division. By 36 O. 3. c. .3. any person keeping an inn or public house, for the purpose of vending wine, brandy, rum, or other spirituous liquors, without a license, shall forfeit £20. upon being convicted on the oath of one witness, in the manner and form mentioned iti Ibe 34 G* 3. c. 12. »rBy the 59 O, 3. c. 2. It is enacted that it shall be lawful for the justices, in general quarter sessions assembled, in each and every district, at their meeting next before the 5th January, in each year, to adjourn the sessions to the last Monday in Decem- ber, at which adjourned sessions they shall have power to limit the number of inns and public-houses, and hear and receive applica- tions for others ; and the said justices shall, upon receiving any such application inquire into the character of the applicant, and if satisfactory, the presiding magistrate shall grant him a certiH- cate under his hand and seal, which certificate shall enable the party to take out a license, on or before the 5tli January next en- suing, on payment of the duiies imposed by this act. ^ 4. Upon granting such certificate, the justices shall direct the inspector to take such sum as the justices or a majority ofthem shall adjudge just and proper, according to the situation of such inn, not ex- ceeding £12 lOs., nor less than £2 IGs. <^ 5. Persons desirous of keeping an inn, may apply for such certificate at any time dur- ing the year, to the justices of the district in which he resides, in general quarter sessions assembled, and such justices shall in- quire into the character of the party, and if expedient to increase the number of inns, the presiding magistrate shall grant a certifi- cate. ^ 6. At the time of granting such certificates the justices shall frame rules and regulations for inn-keepers, which they shall be bound in recognizance to abide by, and a copy of such rules and regulations, for the information of travellers, shall be fixed in some conspicuous place in every house so licensed. This act was to continue in force two years and to the end of the next ses- sion ; and was revived for two years longer by the 11 O. 4. c, 9. with the exception of that part of the second clause which relates toth« adjournment of the sessions to the last Monday in December, and the third clause ; and so much of the fourth clause as relates ta the license duty. <^ 2. Every person keeping a shop and tavern, 1. I 244 xniMf am Xnnsftrf |irv0« niul taking a license for that purpose, ihall pay a iliop-keepers license. ^ 3. Sessions may be adjourned to the fifth January, or if on a Sunday, the Monday following, for the purpose of receiv- ing applications and granting approvals for licenses. ^ 4. Ion- keepers to pay for their license not more than j£lO, nor less than X2 16s. By 2 O. 4. c. 8. Inn-keepers may sell wines &cc. by retail, to be consumed out of their houses, oy 3 W, 4. c. 14. the 1 1 6?. 4. c. 9. is revived and continued for four years, and to the end of the next session. ,t;?' ■^tv^ Oi i.-'M Notiet to /nn-Kecperj.— General Licensing Day.' ,A lr.ilJ Notice is hereby given that an adjourned session of the peace will be held at the office of the clerk of the peace, in the city of Toronto, on — — the fifth day of January, next, at the hour of ——^o'clock in the forenoon, for the purpose of granting and renewing inn* keepers licenses, throughout tlie home district, for the year ensu- ing. "v\ s. W. ChrTc of the Peace for the H, D. Toronto, 20th Dec. 183— . Petition for a License, i t-vrf«iil omrxn To the worshipful the justices of the Home District, in quarter ses- sions assembled. The bumble petition of the undersigned A. B« sheweth : ■*-"y^^'^*' ^^'^That your petitioner is possessed of a very commodious house, situate at -— • in the said district, and is residing therein, and the same is well adapted for the accommodation of travellers, and in a neighbourhood where an inn is much wanted : That your peti- tioner is desirous of obtaining a license to keep an inn there, ' and has made every preparation for the comfort and accommoda- tion of travellers, and having obtained the requisite certificate of good character, which is hereunto annexed, your petitioner hum- bly prays, that your worships will be pleased to grant him a license to keep an inn at the aforesaid premises, upon the usual terms— And your petitioner will ever pray. A. B. '■ii Certificate of Oood Character, ^^t ^c ^ke undersigned inhabitants of the township of — — in the liome district, do hereby certify, that we have known Mr. A. B. for a considerable time past, and that he has always conducted himself in an upright, sober and respectful manner to all persons, and we believe him to be a fit and proper person to be entrusted •fji tnnn aiilr Xtin=ltrr|iirr»V ^45 with a license to keep an inn, which we further certify is much re- quired in the neighbourhood where the petitioner resides. In witness whereof we have hereunto set our hands this — — day of — — . C. D. G. H. £t K • It Jt ♦ - Form of the ChairmanU Certificate. • ^ • ' Home Dibtrict, 7 1 — — > esquire, chairman of the court of general to wit. 3 quarter sessions of the peace, do hereby certify, that A. B. is recoimmended by the justices in sessions as a proper person to keep an inn, in the house in which he now resides, in the township of for the year ensuing, on his paying the sum of ' for the same, and entering into recognizance to keep good order in his said house. Given under my liand and seal, at To- ronto, this— —day of January, 183— . ^ . To J. P. Inspector of licenses for the H. P. Chairman* a. Us ^ .„ . . ■ I ^ , Form of Recognizance to be entered into. t Home Dutrict J t^iw:::::::^'! to wit. V r* r' c «v . ' We, A. B. of the township of inn-keej cr, CD. of the Kume township, yeoman, and £. F. of the same tci'nsiiip, yeoman, do severally acknowledge to owe to our sovereign lord the king, that is to say, the said A* B. the sum of ten pounds, and the said C. D. aiid £. F. the sum of five pounds each, of sterling money of Great Britain, to be levied of our respective goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if the said A. B. shall make default in the recognizance hereunder written. uii The condition of this recognizance is such, that if the above bounden A. B. having received a license to keep a common inn and ale-house, and to sell wines .r>r^ spirituous liquors, for one year from the fifth day of Januoij; one thousand eight hundred and thirty ' in the house wherein he now dvvelleth, in the township of — — do keep good order and rule within his said house, and in any out-house, yard orgarden,orotherplace thereunto belonging ; and further, do abide by such rules and regulations as the justices of the peace for the snid district may frame, for the ob- servance of the several inn-keepers within the said district, pursu- ant to the authority in them vested, in and by the several acts of the provincial legislature now in force, for granting licenses to inn- i 246 mnn mnt ^^xaUttptt^. To Inspector of licenses, H. D -.IF keepers during tlie said term, then this recogaixalnce to ts Toidi* i'-^ Taken and acknowledged before me, > -*- ^\<^iB-i^ ihis day of 1 83—. 5 • " rmi^m ba^ S, W. •• -^ «i:«iiisfa '■"'' Cleric of the peace. - ^^ >«c« v^ai mn - ♦* Office of the Clerk of the '^cace, Toronto, 183—. I hereby certify, that — — has entered into recognizance b^An^ me, to keep good order in his house, as an inn-keeper iq tliQ town — — of — — for the ensuing year. , ; uw j > ,. -;ji- ,v' 4 jiiv .**.»ut .«. Cleric of the JPeu€c H* IXnM : 'i ^lijjr ii.AmiU b'rjt ^uU ni .Kj^ ;. ; .,;; Form of an Inn-Keejper*$ License, Qoivy:,iq ^..ii'^i '^ ' ■ ■ " District. ' ' ' ; ,,, Province of > Sir John Colborne, K. C. B. Lieutenant Gover- Upper Canada. > nor of the province of Upper Canada, he. &c. To all whom these presents may concern : — This license Is granted to of the town — — of in the county of and in the district, inn-keeper, to keep the house known by the sign of within the said town. — r- as an inn, or other house of public entertainment, and to sell therein b^ retail, wine, brandy, rum or other spirituous liquors :-r-this license to be in force until the fifth day of January, one thousand ei^ht hundred and thirty and no longer, and provided that the safd shall, during the continuance of the said license, maintain and keep good order in the said inn or house, and duly observe all such rules, regulations, matters and things, respecting inns or other houses of public entertainment, as by any act or acts made, or to be made, by the parliament of this province, are, or shall be enacted and declared. Given under my hand, at Toronto, in the county of York, this day of one thousand eight hundred anci thirty in the — — year of his Majesty's reign. ' '^ "*'' ' By his Excellency^ s command, •»"■«' wi imRet:i h. B. ■ -Av *' Inspector Gentrah' * Received from the said — — the sum of — — lawful money of the province, being the duties payable on the same* *'' *{'*» ,^,; Assignment of an Jnn-Kecpcr^s License by Indorsement, . '• I, the within named -~~i» do hereby assign all my interest in the within license, and ali benefit and advantage accruing or to ilc- nt %uvi» »M %nm%u#tm* 247 cruC) under or by virtue thereof, unto his executors, admiifis- trators and assigns, for all the remainder uow to come of my term and interest, therein subject, nevertheless, to such terms and con- ditions as are mentioned and expressed in the said license. Wit- ness my hand, at — — the day of 183 — . ' •«$.#&9 Information for forfeiture of Recognizance. Home District^ > The information and complaint of A. B. of the to wit. S township of. day of. in the said district, yeoman, 183 — , before J. P. esq. taken on oath this one of his Majesty's justices of the peace for the said district : — the said informant saith, that for some time past there have been frequent disturbances at the tavern kept by i situate ^. in the said district, and in particular on the day of last, when two persons of the names of commenced a fight, in the presence of the said , and several other persons, in the bar-room of. the said tavern, about twelve o'clock, at noon, the same day, and that the said i— — . permitted the said fight to go on id the said bar-room for a long time without forbidding the satme, or taking measures to suppress the same ; and again on thci _.._ day of at the hour of , at night, another fight &€• [as the case may be"] and this informant further saith that from the above circumstances, and other matters which he hath been in- formed of, and believes, he hath good reason to suspect, and doth verily suspect, that the sairf tavern is not kept by the said in a decent and orderly manner, bu^ otherwise, to the great annoy- ance and disturbance of many of his Majesty's subjects ; and there- fore he prayeth that the said ■ may be summoned according to law. -; ^/ i3«}o 1'i Recognizance to Prosecute, ■ :^ju oi It; Ar B. of the township of in the home district, yeoman, acknowledges, he. [ in the usual form, the amount being at the iUteretion of the justice,"] Whereas the said A. B. haih this day made oath before me, J. P. esq. one of his Majesty's justices of the peace for the said district, that he, [ here rodte- the particulars charged in the information,'] Now the condition of this recogni- zanice is such, that if tlie said A. B. shall and do personally ap« pear at the next general sessions of the peace to be holden at the city of Toronto, in and for the said district, and then and there prosecute and give evidence, before the court and jury sworn to inquire upon a charge, to be then and there preferred by him the said A. B. against the said C D. for not keeping a decent and orderly house, at the tavern and prcti)?ses aforesaid, and shall not I u I I ji I itatidlliltmt 248 mn» mi^mtxnsUttpeiMv depart the court without leave, then this recognizance 10 be void, otherwise, in full force. Taken, &;c. ... ia$'>''i 1 Condition of the Recognizance by a Witness, m The condition of the above recognizance is such, that if the above bounden G. H. shall and do personally appear &z;c. [as be- fore] and then and there give evidence upon a charge to be then and there preferred by A. B. of against C. D. of— inn- keeper, for not keeping a decent and orderly house, at the tavern and premises kept by him, situate in the said township, and not depart the court without leave, then this recognizance to be VQid* otherwise, in full force. ' , tni m ;.« : mute, svat fe^isifci Summons to the Inn-Keeper, • , • >. Home District, > To the Constable of in the said district* V?- to wit. Whereas CD. of. — in the said district, inn- keeper, hath this day been charged before me, J. P. esq. Ok,e of his Majesty's justices of the peace for the district aforesaid, on the: oath of a credible witness, with not keeping a decent and orderly house, at the tavern and premises kept by him the said C. D. at ■ I. -■■ in the district aforesaid. These are therefore to require you, the said constable, forthwith to summon the said C. D. to ap- pear at the next general quarter sessions of the peace, to be held . at the city of Toronto, in and for the home district, and then and there answer to the aforesaid charge, to be then and there preferred against him, and tried by a jury, according to the statute in such case made and provided, and to be further dealt with according to law ; and be you then there to certify the court what you shall have done in the premises. Herein fail you not. Given under my hand and seal, &c. ^'"'»' "j iv=; ^i>M-t^3^ ni ? < A copy of the above should be served upon the defendfttit. ) ■ Information for Drunkenness^ on the 4 J. c, 5. and 21 J, e, 7. Home District, > The information of A. J. of in the said > district, yeoman, taken on oath before me, J. P. esq. one of his Majesty's justices of the peace for the said dis- trict, the I. day of in the year . The said infor- mant saith, that A. O. of. on the —— day of ——. in the district aforesaid, labourer, in the year aforesaid, at _^ in the district aforesaid, was drunk, contrary to the statutes in such case made and provided ; and thereupon he the said A. J. prayeth, that he the said A. O. may be convicted in the sum of five shillings, ac^ cording to the said statutes. ^ • ,'* Sworn he. >*' '' ii^'wan ^df. to tvipmi 4*-^tm^ii Htxnu ann UnmftttptwJ^ 24a 7 Hi ? "oH /inov du f>i # fif i ?< Summons thtreupon^ Home; District, To the Constable of 3 For as much as information upon oath hath been made before me, J. P. esquire, one of his Majesty's justices of the peace for the said district, that A. O. of in the district afore- said, labourer, on ..ne . ■ day of in the year — .— at the township of —.— in the district aforesaid, was drunk, contrary to the statutes in such case made and provided : These are there- fore to require you to summon the said A. O. to appear before me, at in the said district, on - the day oU to answer unto the said information, and to shew cause why the penalty of five shillings should not be levied on the goods 0/ him the said A. O. for the said offence ; and be you then the.e co cer- tify what you shall have done in the premises. Given under my hand and seal, the ■ ' ■. day of in the year Note. — ^The justice ma- convict upon his own view, without any information or •»!?•;.. IVatrant to the Ckureh-IVardenif to receive tlie Penalty ^ (if they are not present at the Conviction^ or the Offender makes default by not appearing.) (Burn.) Home District, > To the Church-Wardens of \ For as much as A. O. of. in the said dis- trict, labourer, is convicted before me, J. P. esq. one of his Ma- jesty's justices of the peace for the said district, for that he the said A. O. on the ., day of in the year — -> at tlie town- ship of ■ ■■ in the district aforesaid, was drunk, contrary to the statutes in such case made and provided, whereby he hath forfeited the sum of five shillings, to be disposed of according to law : These are therefore to require you to demand and receive of and from him the said A. O. the said sum of five shillings, to be by you accounted for, in manner aforesaid ; and if he shall refuse or ne- glect (o pay the same, by the space of one week after sucb demand made, that then you certify to me such refusal and neglect, to the end that such proceedings may be had thereupon as to justice doth appertain. Given under my hand and seal, the . day of — in the year — — . *>.\'>l .tain. ■»r." ^•*t-^^*ift»» Warrant to levy the Penalty on Non-paymint. A J, e. 5. and 21 J. Co 7. (Burn.) *t*"'*'T '^ '■" Home District, > To the Conctable of— — in the said district. 3 Whereas A. O. of in the district aforesaid, was on the day of — — convicted before me — — . one of his Majesty's justices of the peace for the said district, for that he the ■I 1 i 1 11 J 250 mtm «ii9 mns^$^txu* said A. O. was on the ■ day of — — ^ drunk, at -— — aforesaid, in the district aforesaid, by which he bath forfeited the si'im of 5«. And whereas, 1, the said -— — did is&ue my warrant, on the « < > day of — — to the church-wardens of the — of aforesaid, to demand and receive the said sum of 5s. of and from the said A. O. : and whereas, it duly appears to me, as well on the oath of C. W. ^.Kiurch-warden of the — — — aforesaid, as otherwise, that they the said church-wnrdens did, on the — —day of— *• demand the said sum of 5s, of and from the said A. O. but that he the said A. O. hath neglected to pay the same, as aforesaid, and that the same is not yet paid : These are therefore to command you, forth- with to levy the sa*'^ sum, by distraining the goods of him the said A. O. and if withii^ th'i space of (six) days, next after such dis- tress by you take*' t\ said sum, together with reasonable charges ior taking and ke ping the said distress, shall not be paid, that then you do sell the said goods so by you distrained, as aforesaid, and out of the money arising from such sale, that you do pay the said sum of 5s, to the church-wardens of the said — •— to be dis- posed of according to law, rendering to him the said A. O. the overplus, upon demand, the necessary charges of taking, keeping, and selling the said distress, being first deducted ; and if the said A. O. be not able to pay the said sum of 5s, and sufficient distress cannot be found whereof to levy the said sum, that you certify the same to me, with the return to this warrant. Given under my hand and seal, this day of , Certificate by the Constable of Warrant of Distress, (Burn.) i Home District, ^ A. C. Constable of. maketh oath, this . year -- before me, the justice within mentioned, that he hath in the said district, day of in the made diligent search for, but doth not know of, nor can find any goods of the within mentioned A. O. whereof to levy the within sum of five shillings. A* C. Before rae, J. P. Commitment to t7ie Stocks, for default of Distress^ on 4 /. c. 5. and 21 J. c. 7. (Burn.) f u r*J.i ut Home District. — To the constable of. in the said district. Whereas A. O. of the — — - day of convicted before me in the said district, labourer, was on — one of his Majes- ty^s justices of the peace for the said district, for that he the said A. O. was on the — day of — dimik at — — . aforesaid, in the district aforesaid, whereby he hath forfeited the sum of 58. : .%A Xn^oUirnt SeHlof 0^ Ut* 251 And whereas it duly appears to me that the said A. 0« is not able to pay the said sum of 5s. : These are therefore to require you, ^ in his Majesty's name, to set hiro the said A. O. in the stocks, there to remain for the space of six hours. Given under my hand and seal, the — — day of » * A»i^ i» ^tad».ui* INSOLVENT DEBTORS. ^^* By the 45 O. 3. c. li Any prisoner in execution for debt, may ap-- ply to the court whence such execution issued, and make oath that he is not worth £5. and the court shall order the plaintiff^ by rule, to be serred on the plaintiffor the attorney, to pay such defendant in execution 5s, weekly maintenance, so long as be shall be de- tained in prison, at the suit of such plaintiff, to be paid in advance, to the prisoner or gaoler, on Monday in every week, on failure of which the defendant shall be released : such payment not to be made if the plaintiff can prove to the court that defendant has se- cr.ccd or conveyed away his effects, to defraud his creditors. By 2 G, 4. c. 8. Plaintiffs may tender interrogatories to debtors in execution, claiming weekly allowance, touching their insol- vency, and their answer may be sworn before commissioners for taking affidavits. ^ 2. Debtor shall receive no benefit from any order for a weekly allowance, until he has answered the interro- gatories. By 8 G. 4. c. 8. The court, in term time, or a judge in vacation, may order prisoners to be discharged, on non*payment of their weekly allowance, such discharge not to operate as a release of the debt. 3rtl ni INSPECTORS OF DISTRICTS. T?^' By the 43 Gr. 3. c. 9. the lieutenant governor is authorised to ap- point (during pleasure) an inspector in every district, who shall superintend, collect and account for, (as hereinafter provided.) — His Majesty's revenue arising from licenses to sell by retail, winu and spirituous liquors, or to use and employ stills for the distilla- tion of spirituous liquors. <§• 3. In all cases, not otherwise provi- ded for by this act, persons desirous of obtaining a license shall apply to the inspector. <^ 4. And it shall be the duty of the in- spector to ascertain persons selling wine or spirits, or using stills without license, or large/ stills than those licensed, and proceed against the offenders. ^ 6. Inspector to be allowed £10. per cent, on monies collected and paid by him to the receiver general. <^ 7. The inspector, before entering upon his office, shall take and subscribe the following oath, before any two justices of the dis* 1 r I J 253 Kn0|irctot0 atmtAtitiu. i tri€t, who are directcil to transmit a certificate thereof to the lieu- tenant: governor. « I, A. B. do snear on the holy evangelists of Almighty God, that ! will well and i^ruly execute, do and perform, the duty of in- spector of his Majecuy's revenue, arising from shop, tavern and still licenses, and will duly and impartially superintend the collec- tion thereof, according to the best of my skill and knowledge ; and in all cases of fraud, or suspicion of fraud, that shall come to my knowledf^<%, I will spare no person from favor or aifection,, nor will I aggrieve any person from hatred or ill-will, and that I will in all cases faithfully do, execute and perform, to ti?a l^-st of my «klU and knowledge, all and every the duties imposfid upon me b;y r\u act passed in the provincial parliament, in the forty-^iuirfi year cr his Majesty's reign, intituled, " an act for the better securing to bis Majesty, his heirs and successors, the d*ie collection and re* ceipt of certain duties tin^rein meGUoned.'* And no inspector shall enter upon hi^ office until he sl'.al^ hav,:;: given security by two suret'^cs in jC2£0. eacli, and himself in £500. to the king, for the due performance of hi? oflice. <^ f The fol- lowing (aes are authorised to be taken by the district inspector :— s. rf.,^_ ■^* For filuig every requisition for a still license, 1 3,'.* ' For is!»u;i^<>; the license, ....•• 2 >For il'hig the certificate of the magistrates and clerk ' ;^^ " ' of the peace, to the person requiring t^ivern license, ' 1* ^ '~ m For issuing the license, , • . 2 6^'^ ' For issuing shop licenses, 2 6 ^^'' The above act is made perpetual by the 48 G. 3. c. 8. .^ By the 44 G, 3. c, 7. The executor, &c. devisee or purchaser of any person licensed to work a still, may, within twenty days, give notice to the inspector, and make a requisition for a license for the remainder of the term, the purchaser producing his receipt for the purchase money. ^ 3. After such notice the inspector may en- dorse the notice, as follows :— A. B. is hereby licensed to work the within mentioned still or stills, for the remainder of the term by this license first granted. C. D. Inspector for the district of -"^ Sec. 4. Inspectors may at all times of the day, when the stills are not charged, upon giving six hours notice, enter into any still house, and measure such stills, under a penalty of £25. by the person refusing, to be recovered as therein mentioned. See fur- ther on this subject, title ' Stills.'' , By 50 G. 3. c. 6. The inspector is authorised to grant licenses for billiard tables, (see title * Billiard Tables^) such licenses to be he Heu- iy Ciod, y of in- >rn and I coUec- ge ; and e to my nor will I. wUt in iny sk'iU - year o. uring to and re* in i;500. The fol- ector :— $. d, 1 1 ?- 2 6^, 2 6 chaser of lys, give se for the »t for the may en- I still or ranted. ztof the stills any still 5. by the See fur- licenses ses to be fttifitnectoir ^eiietriil. 253 ^1 dated on the 29th September, and to expire on the 28th Septem- ber following ; the person requiring such license paying 58* upon application, and 5«. upon issuing such license. ^5. AH monies received by the inspector, under this act, (except what he shall be entitled to receive for his own benefit) shall be paid to the receiver general, on or before the 31st December. By the 56 G, 3. c. 3. Inspectors of districts are required to ren- der, within one month after the 5th of January in each year, (during this act) to the inspector general, an account upon oath, of all monies which he shall have received, under any act of par- liament, and shall pay the amount to such receiver general, within two .months afterwards. ^ 3. And shall also transmit quarterly accounts to inspector general, upon oath, of all monies by him received, and within .'ne month afterwards pay the amount to the receiver general. ^ 4. He is also required to furnisii quarterly^ on the first day of the general quarter sessions, to the clerk of the peace, an accurate list of all still, shop and tavern licenses, issued the preceding quarter. <^ 6. And every inspector neglecting to transmit such account, or pay over the monies to the receiver ge* neral, as required by this act, shall, for every neglect forfeit £lOO« to be recovered by any one that will sue in the king's bench, by action of debt Stc, one moiety of which shall be paid to the infor- mer, and the other to the use of the province. ,,? ^^^4 By the 59 G. 3. c. 2. Inspectors are required, upon the produc- tion of a certificate, signed by the chairman of the general quarter seFsioUk^^ to grant the party a tavern license, on receiving payment . oC the duty on such license. By the 59 G, 3. c. 6. <^ 5. Inspectors are not to charge any ad- ditional fee for issuing any license under the provisions of that act, nor retain more than five per cent, upon the duties thereby directed to be paid : and by the 4 G. 4. c. 13. <^ 10. Inspectors of districts are not to receive more than jClOO. per annum, as per centage, under that or any other act. INSPECTOR GENERAL. iiU By the 56 G, 3. c. 3. <^ 2. Every inspector in the province is re- quired, within one month after the 5th of January in every year, during this act, to render a just account of monies received, and pay such monies to the receiver general within two months after- wards. <^ 5. And the clerk of the peace in each district, on the 1st May and 20th of February in each year, shall transmit to the inspector general a certified copy of all still, shop, and tavern licenses issued. ^^?t9 u :254 3uHMltmnf $rr. Bjr 59 0,3. c. 2. ^ 7. Tfne clerk of the peace shall transmit to the tn«pector general, quarterly, accounts of all duties on licences orderedby the sessions. JUUISDICTION. miou By 59 G. 3. c. 10. It is enacted, that all crimes and offences conv- mitted in any tract of country, or parts of this province, not being within the limits of any described county or township, may be inquired o". and tried within any district of this prov'xe, and may and shall ''■'? laid and charged to have been committed within the jurisdiction c Mie court which shall try the same; and such court may proceed to trial, judgment and execution, or other punishment, as if such crime had been committed within the district. ^ 2. When such parts of the province shall be formed into counties or townships, such offences then shall be tried in the district in which such county or township shall be comprehended. it JUUY. ikin (ifii{CI«r»M a^i By Stat. 14 Gr. 3. c. 83. <^ II. Which was passed in 1774, and while this province formed a part of the province of Quebec, it was enacted, that the criminal law of Engla'id should continue to be administered and observed as law in the province of Quebec, both in regard to the ofience as well as the aethod of prosecution and trial ; and subsequently by a statute of the province of U. C. the 40 O. 3. c. 1. the criminal law of England as it stood on the 17th Sept. 1702, was also declared to be the criminal law of this province, but without afiecting the provisions of the above statute of the 14 G. 3. c. 83. By the 32 G. 3. c, 2. the trial by jury is also directed to be used in all civil causes. ^^i Sir W. Blackstone says, the trial by jury, or the country serv patriam is also that trial by the peers of every Englishman, which as the grand bulwark of his liberties is secured to him by the great charter. Bl. Com. vol. 4. p. 349. . And again, that the foun- ders of the English law, have with excellent foret ast, contrived that no man should be called to answer to the King for any capital crime* unless upon the preparatory accusation of twelve or more of his fellow subjects, X\\e grand jury ^ and that the truth of every accusation, whether preferred ;n the shape of indictment, infor- mation or appeal, should afterwards be confirmed by the unani- mous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. lb. ?-' Acts for the Regulation of Juriet. By Stat. 34. G. 3. c. 1. It is enacted, that the clerk of the peace of each district shall, yearly, (under the penalty of JE5) makeup, ^f^\ ^'■A iSfwn. -xuit 255 insiiMt to I licences ces com>> nee, not liip, may '-:ce, and id within and such or other ithin the i forrtied ed in the ehetided. ili'i&iii ail 114, and uebec, it ntinue to Quebec, )secutiou of U. C. i on the V of this e statute y jury is ■ if' itry per' n, wliich I by the ,he foun- ived that capital or more of every t, infor- e unani- fierently 16 peace nake up, rrom the assessors* returns, a list of Inhabitant house-holders to be transmitted or delivered to the sheriff; and every person returned in such list shall be qualified to serve on juries ; and no sheriff or coroner shall return any other person, or any juror whose name shall not appear in such list. <^ 2. Sheriff's bailiffs shall not summon any person to serve on juries at the sessions or assizes who shall have served within one year before, under the penalty of jC 10. ^3. The sheriff shall keep a register of jurors on all trials, and grant cer- tificates of service, if required, without fee or reward. Sec. 4. No reward shall be taken for excusing any persons from serving on jurleSf and no juror shall be summoned whose name is not speci- fied in the sheriff's mandate, and if any sheriff or bailiff shall transgress herein, he shall be fined in the discretion of the court of assize. Sec. 5. The sheriff shall upon his return of every writ of venire fncijas^ annex a panel of not less than 36 jurors, nor more than 48. Sec. 6. The name of every juror shall be written on distinct pieces of parchment or paper, and shall be delivered to the marshal, and when a cause shall be called on, he shall in open court, draw out the jurors names successively until twelve shall be drawn and allowed, and being sworn, the same shall be the jury to try the cause, and shall be kept apart till they have given their verdict : their names shall be again returned to the glass, to be re-drawn, until all the causes are disposed of. Sec. 7. Any juror not appearing after having been three times called, shall pay a fine not exceeding £3. nor less than 20s. unless reasonable cause be shown. Sec. 8. Persons sixty years of age shall be exempt from serving on juries. By the 36 O, 3. c, 2. The sheriffs of the easterui midland, and western districts, before the first day of the term next preceding the assizes, shall return a pannel of not less than 36, nor more than 48 jurors, into the court of king's bench, without a venire fadtis for that purpose. Sec. 2. The sheriff of the home district shall make the like return, on cr before the first day of every term. \ Special Juries. By the 48 G. 3. c. 13. A special jury may be obtained for the trial of any indictment, information, action, suit or cause, without any motion in court. Sec. 3. The clerk of the peace shall, annu- ally, on or before the 15th of July, deliver to the sheriff a list of persons assessed ^200. and upwards, and shall be entitled to a fee oCSs, by an order in sessions on the district treasurer. Sec. 4, Four days notice shall be given by tite prosecutor of any indict- ment, &c. or the defendant to the opposite party, to appear at the sheriff's office. Sec 5. Yluen 40 names of the persons so assessed shall be drawn by the sheriff or his deputy, or an indifferent per- 1'4 >■■'. 256 3Jttr». son, and each party may strike out the names of twelve, and the remaining sixteen shall be summoned as special jurors on the trial. Sec. 6. Upon the neglect of either party to attend, the sheriff* or his deputy, in behalf of such party, may strike out twelve nimes. Sec. 7. Special jurors shall be entitled to receive 5«. each. Sec. 8. And the person applying for a special jury shall pay the fees for striking such jury, and all expenses occasioned by the trial, and upon taxation, shall only be allowed the costs of a common jury, unless the judge shall certify that the same was a proper cause for a special jury. By the 2 Gr. 4. c. 1. '^ 30. Every common juror shall be allowed ]». 3d. in every cause in which he shall be sworn, to be paid by the plaintiff or his attorney. .tttlrnt The mode of summoning Juries at the Sessions, .* . By a clause in the commission of the peace, the sheriff is com- manded, that at certain days and places, which the justices, or any two or more of them, shall make known, that he cause to come before them such and so many good and lawful men of his district, by whom the truth of the matter in the premises shall be the better known and inquired into. — (See post for the form of precept of two justices, for summoning the jury at the sessions.) The general precept, that issues before a session, is to return twenty-four; and commonly, the sheriff returns upon that precept forty-eight. 2 U. H, 263. Upon the grand jury, there may be, and usually are, more than twelve ; but if there be twelve as- senting, though others dissent, it is not necessary for the rest to agree. 2 H» H» 161. But upon a trial by a petit jury, it can be by no more, nor less, than twelve, and all assenting to the verdict. 2 H. H. IGl. Every summons of jurors shall be made by the sberiflf, his officer, or lawful deputy, six days before, at the least, shewing to every person so summoned, the warrant, under the seal of the office wherein they are appointed to serve; and if such juror be absent from the place of his habitation, notice of the summons shall be given, by leaving a note in writing, under the hand of such officer, cuntaining the contents thereof, at the dwelling-house of such juror, with some person there inhabiting the same. 7 ^ 8 fT. c. 32. ^ 5. And if the sheriff, his deputy or bailiff, neglect their duty herein, or excuse any person, for favour or reward, he shall forfeit jC20, to him who shall sue. T fy 8 TV. c. 32. <^ 6. ; or he may be fined £10, or under, by the judge of assize. 3 G. 2. c. 25. <^ 6. And no bailifi', or other officer, shall summon any person other than such whose name is specified in a mandate signed by the sheriff, or under-sheriff, and to him directed, on pain of j£lO. 3 O, 2, c. 25. ^6. and the he trial, leriflf or nimes. I. Sec. the fees he trial, common I proper allowed d by the r is com- itices, or cause to in of his i shall be form of sessions.) to return it precept '. may be, velve as- |he rest to , it can ng to the be made re, at the It, under ; and if notice of ig, under »f, at the nhabiting lis deputy irson, for shall sue. r, by the or other ; name is terifi*! ftnd it. Of ChalUngeg, 257 Challenges are of two kinds, vix. — either to the array^ which must be in writing ; to the poUs^ which may be verbal, and may be made either on the part of the King, (i. e. the prosecutor) or of the prisoner. 4 BL Com. 352. A challenge to the array, is an exception to the whole panel in which the jury an arrayed. There are two descriptions of causes of challenge to the array, viz. : principal causes of challenge, and causes of challenge to favor. The following are principal causes of challenge to the array, viz : — If the sheriff, or other officer, be of kindred to the plaintiff or defendant ; if any one or more of the jury be returned at the nomination of either party ; if the plaintiff or defendant have an action of battery against the "'..tiriff, or the sheriff against either party ; so, if either party have an action of debt against the sheriff; but otherwise, if the sheriff have an action of debt against either party ; or if the sheriff have parcel of the land depending upon the same title ; or if the sheriff, or his bailiff which returned the jury, be under the distress of either party; or if he be counsel, attorney, officer or servant, of either party ; gossip, or arbitrator in the same matter, and treated thereof. 1 Inst, 156. A challenge to the array for favour, arises from matter fit to be left to the conscience and discretion of the triers, under the particular circumstances of each individual case. Thns, it is said, that if one of the jurors returned be a tenant to the sheriff; or if there be a family connection between one of the jurors and the sheriff, this may be ground of challenge to the array for favor : that is, matter to be left to the triers to decide whether it indicates such partiality as should avoid the array. 3. Bl. Com. 359. "^; Challenges to the j}o//« are challenges of individual jurvmen, and are either peremptory or for cause ; peremptory challenges, are at the mere will of the party, without any reason given. Co. Lit. 156. In cases of treason or felony, the prisoner by the com- mon law might peremptorily challenge 35, but. by stat. 22. II. 8. c, 14. Sec. 6. the number was reduced to 20, in petit treason, murder and felony ; and in case of high treason and misprision of treason, it was taken away by stat. 33. II. 8. c. 23. but re- vived by stPt. 1. ^ 2. P. & JW. c. 10. By the 3. W. 4. c. 4. every peremptory challenge by any per- son indicted for treason or felony, beyond the number by law al- lowed shall be void, and the trial may proceed as if no such chal- lenge had been made. In cases o( misdemeanor there is no right to peremptory challenge, but it is usual for the officer to abstain B 258 nnm Sttr»* hy;i^ u. from calling any reasonable number of names objected lo by etllier party, taking care to leave enougb to form a jurj,. Dickenton Q. S. jf. 344. „.^. .,^,.^,, A challenge to the polli^ or of individual jr. 'mcti, is like a challenge to the array, a principal challenge, or a challenge to the fiivor. The grounds of principal challenge are — 1. Thj rank of the parly, as being a peer of the realm. 2. For some personal incapacity, as if a juryman be an alien or a minor. 3. On accoant of some palpable ground of bias, as if the juror be of the blood or kindred of either party ; or under his power or influence ; as tenant or servant ; or of counsel with him ; 4BI. Com. 3G1. Or if he has ileclared his opinion beforehand ; Haw. b. 2, c. 43. ^ 29. Or has indicted the party for the same cause ; Lamb, 554. Or beea up- on a former jury upon the same matter, though between other per- sons ; or arbitrator unless indifferently chosen by either party ; or action pending between the juror and either of the parties ; or brib- ing ajuror. 1 Inst. 157. 4. On account of some crime or misde- meanor aiTecting the jurors' chorncter, as a conviction of treason, felony or perjury ; or if he be outlawed ; or hath been attainted of false verdict ; proemunire ; or forgery : but it seems that none of the above cited challenges are principal ones, but only to the favor, unless the record of the outlawry, judgment or conviction, be pro- duced, if it be a record of another court ; or the term be shpwpji if it be a record of the same court. 3 BL Com. 363vo«; '^'b {>'><''• As to challenges for suspicion of favor, although ajuror has not given apparent marks of partiality, yet there may be sufficient reason to suspect he may be more favorable to one side than the other, and this is his reason for a challenge to the favor. The causes of favor are in6uite, and in these inducements to suspicion of favor, the question is, * whether the juryman be indifferent as he stands unsworn,' for a juryman ought to be perfectly impartial to either side. Co, Lit, 157. (b). .. As the challenge to the array must be before any of the jury are sworo ; so challenge to the pollst must be before the particular ju- rors are sworn. Bull, N. P. 307. After a challenge to the array, the party may challenge the polls ; but after a challenge to the polls there can be no challenge to the array ; and he who has more than one cause of challenge against ajuror, must take them all at once: but if he challenge ajuror, and the cause be found insuffi- cient, he may, nevertlieless, afterwards challenge him peremptorily, for perhaps the very challenge may create a prejudice in the mind of the juror so challenged, 3 Bl. Com. 363. . rj - uT ,,.f,A principal cause of challenge being grounded on a manifest presumption of partiality, if it be found true, it unquestionably sets aside the array without any other trial than its being made a)tt0t(er« of tfir ^tutt. 259 8 more all at nsuffi- >torily, e mind out to the latisfaction of the court before which the name is re- turned. But a challenge to the favour, when (he partiality is not apparent, must be lefl to tiie discretion of tlie triers. Co. Lit. 158. (a.) If the array be challenged, it lies in (he discretion of the court to determine how it shall be tried ; — sometimes it is done by two attornies ; sometimes by two coroners ; and sometimes by two of the jury ; with this dilFerence — that if the challenge ba ibr kindred in the sheriff*, it is mos( fit to be tried by two of the jurors returned t if the challenge be on account of partiality — then by any other two assigned (hereunto by the court. 2 Halct 275. When a challenge is made to the array, for favour, the prosecutor may either confess it or plead to it ; — if he plead, the Judges assign triers to try the array, who seldom exceed two ; who being chosen and swurn, the clerk of the peace declares to them the challenge, and concludes to them thus — *' and to your charge t«, to inquire whether it be an impartial array or a fa- vourable one" ; and if they afflrm it, the clerk enters iindernentli the challenge, ** ajirtnatur** ; but if the triers find it fuvourable, then thus — "calumnia vera," or words to that efl*ect. ' V^'^^''^ ■■■'■ As to challenges to the polk, — if a juror be challenged before liny juror be sworn, two triers are appointed by the court ; and if he be found indifferent, and sworn, he and the two triers shall try (he next challenge ; and if he be tried, and found indifferent, then the two first triers shall be discharged ; and the two jurors tried, and found indifferent, shall (ry the rest. But if the prose- cutor challenge (en, and (he prisoner one, and (he twelAh be sworn, then he (hat remains shall have added to him one chosen by the prosecutor, and another by the prisoner, and (hey three shall try the challenge ; and if six be sworn, and the rest chal- lenged, (he court may assign any two of (he six sworn, to try the challenges. 2 Hale, 275. The truth of (he matter alleged, as cause of challenge, must be made out by witnesses to the satis- faction of the triers ; also, (he juror challenged, may on a voir dire, be asked such questions as do not tend to his disgrace ; but a juror may not be asked any questions as (end (o discover mai(ers of infamy or shame. Salk. 183. nor may a juror be asked whe- ther he has expressed an opinion hostile to the party challenging, R, V. Edmonds, A. B. Sf A. All. -"-; ;^ \ JUSTICES OF THE PEACE, '^"^r The King^s Majesty is, by his office and dignity royal, the princi- pal conservator of the peace within all his dominions ; and may jcjive authority to any other to see the peace kept, and (o punish such as break i( ; hence i( is usually called the King's peace, ^'^'■'■^'Tf'nliifftiiiri 260 3ni$Httu 0t tlir ^uu. 11 u Justices of the peace are appointed by the king's special commis- sion under the great seal, which appoints them all jointly und separately to keep the peace, and any two or more of them to in- quire of and determine felonies and other misdemeanors. When any justice intends to act under this commission he sues out a writ of dedimus potestaiem from the clerk of the crown in chancery, empowering certain persons therein named to administer the usual oaths to him ; which done, he is at liberty to act. I Bl, Com, p. 349 ; 351. And every justice, (except as therein excepted) shall have jClOO per annum, clear of all deductions; and if he acts without such qualification he shall forfeit £100. 5 O. 2. c. 18* He must also take and subscribe an oath that he is duly qualified, besides the oath of office and the oaths of allegiance and supremacy. lSG.2c,20.^1. These latter oaths, however, are now dispensed with by the 3 W. 4. c. 13. and another form of oath substituted, which will be found under the title *' Oaths of o^ce." see post. ' Form of the Commisnon of the Peace. William the Fourth by the grace of God of the united kingdom of Great Britain and Ireland, king, defender of the faith, &cc. To — — [the names of the justices being here inserted f"] esquires, greeting : Know Ye, that we have assigned you, jointly and seve- rally, and every one of you, our justices to keep the peace in our Home district, and to keep, and cause to be kept, all ordinances nnd statutes for the good of the peace, and for the preservation of the same, and for the quiet rule and government of our people« made in all and singular their articles in our said home district, according to the force, form, and effect of the same ; and to chas* tise and punish all persons that offend against the form of those ordinances and statutes; and to cause to come before you, or any one of you, all those who to any one or more of our people con- cerning their bodies, or the firing of their houses, have used threats, to find security for the peace or their good behaviour towards us and our people ; and if they shall refuse to find such security, then them in our prisons, until they shall find such security, to cause to be safely kept. We have also assigned you, and every two or, more of you, our justices, to inquire more fully the truth, by the oaths of good and lawful men of the district aforesaid, by whom the truth of the matter may be the better known, of all and all manner of felonies, poisonings, trespasses, forestallings, regratings, engrossings and extortions whatsoever ; and of all and singular the crimes and offences of which the justices of the peace may and ought lawfully to inquire, by whomsoever, and after what manner soever, in the said district, had done or perpetrated, or which here- after shall there happen to be done or attempted. And also, of all 3uutittn of tte ^tatt^ 261 or the lotn all »gs» liar ind iner ;rc- all [ those who, ia the aforesaid district, in companies, against our peace in disturbance of our people, with armed force have gone or rode, or hereafter shall presume to go or ride. And also, of all those who shall there have lain in wait, or hereafter shall presume to lie in wait, to maim, or cut, or kill our people. And also, of all victuallers, and all and singular other persons who, in the abuse of weights and measuies, or in selling victuals, against the form of the ordinances and statutes, or any one of them, therefor made for the common benefit of our province of Upper Canada, and our people thereof, have offended or attempted, or hereafter shall pre- sume, in our said district, to offend or attempt. And also, of all sheriffs, bailiffs, stewards, constables, keepers of gaols, and other officers, who, in the execution of their offices about the premises, or any of them, have unduly behaved themselves, or hereafter shall presume to behave themselves unduly, or have been, or hereafter shall happen to be, careless, remiss or negligent, in our said district ; and of all and singular articles and circumstances, and -^11 other things whatsoever that concern the premises, or any of tt ;m, by whomsoever, and after what manner soever, in our afor jaid district, done or pepetrated, or which shall hereafter hap- pen to be done or attempted in what manner soever. And to inspect all indictments whatsoever before you or any of you taken or to be taken, or before others late our justices of the peace in our aforesaid district made or taken and not yet determined ; and to make and continue process thereupon against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted, until they can be taken, surrender themselves, or be outlawed. And to hear and determine all and singular the felo- nies, poisonings, trespasses, forestallings, regratings, engrossing!^, extortions, unlawful assemblies and indictments, aforesaid ; and all and singular other the premises according to the laws and statutes of our said province of Upper Canada, or form of the ordinances and statutes aforesaid, it has been accustomed or ought to be done to chastise and punish. Provided always^ that if a case of diffi- culty upon a determination of any of the premises before you, or any two or more of you, siiould happen to arise, then let judgment in nowise be given before you or any two or more of you, unless in the presence of one of our justices of our court of our bench, or cnu of our justices appointed to hold the assizes in the said district; and therefore we command you, and every of yon, that to keeping the peace, ordinances and statutes, and all and singular other the pre- mises, you diligently apply yourselves, and that at certain day; and places which you, or any such two or more of you as is albre- said, shall appoint for the purposes, into the premises you mal^o inquiries, and all and singular the premises you hear and deter- 'IT 262 Stmiit^ nf tHe ^$mt. i w mine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains according to the law and custom of Upper Canada: saving to us our amerciaments and other things to us thereupon belonging. And we command, by the tenor of these presents, our sheriff of our said district that at certain days and places, which you, or any such two or more of you, shall make known unto him, he cause to come before you, or any such two or more of you as is aforesaid, such and so many good and lawful men of his district, by whom the truth of the matter in the premi- ses shall be the better known and inquired into. ,».■"]■ Ill testimony, &:c. •liiii) fi\ i61 J3B oc" The commission is determinable, 1. By the demise of the ..j crown, that is (6y the 1. Ann^ c. 8.) in 6 months afterwards. 2. B J^ ' ' express writ under the great seal. Lamb. 67. 3. By writ of «tt- persedeaSf but this does not totally destroy it, as it may be revlvecl . again by another writ, called a procedendo. 4. By a new commis-'/,^^ sion, which virtually, though silently, discharges all the former* .' justices that are not included in it, for two commissions cannot subsist at once : and lastly, (by 1 Mar. Sess. 2, c, 8.) by accession to the office of sheriff; and according to some opinions, also, by succeeding to the office of coroner. Dalt. c. 3. BU Com. 16. Ed. 353. ?! , •. Oath of Office. (Burn, Toone, &c.) ^ r --, .j Ve shall swear, that as justices of the peace, in the home district/ in all articles in the King's commission to you directed, you shall do equal right to the poor and to the rich, after your cunning, wit and power, and after the laws and customs of the province of Up- per Canada, and statutes thereof made ; and ye shall not be of counsel of any quarrel hanging before you ; and that ye hold your sessions after the form of the statutes thereof made ; and the issues, fines and amerciaments, that shall happen to be made, and all for- feitures which shall fall before you, ye shall cause to be entered without any concealment, (or embezzling) and truly send them to the King's exchequer ; ye shall not let, for gift or other cause, but well and truly ye shall do your office of justice of the peace in that behalf; and that you take nothing for your office of justice of the peace to be done, but of the King, and fees accustomed, and costs limited by statute ; and ye shall not direct, nor cause to be directed, any warrant (by you to be made) to the parties, but ye shall direct them to the bailiflfs of the said district, or other the King's officers or ministers, or other indifferent persons, to do execution thereof. — So help you God. . f-'.' A 3mtUt» $1 tfir ^nm* 263 doing customs other 3 tenor n days 1 make two or lawful if. sn >{ .0' v^niob C*^'* of Qualification. (Burn, Toonb, &.c.>3q hiiB ,Qfi(ii) I, A. B. do swear, that I truly and bona fide have such a^ ,, estate, in law or equity, to and for my own use and benefit, conn, sistfng of [state the nature of the estate'] — as doth qualify me to 9ct as a justice of the peace for the home district, according to the true intent and meaning of an act of parliament made in the eighteenth year of the reign of his Majesty King George the second, entitled, *' an act to amend, and render more effectual, an act passed in the fifth year of his late Majesty's reign, entitled, s the justice authority, arising out of the necessity of preserving i!>e peace, to proceed against the party offending. Thus, if a man commit u felony in the home district, and goes into an outer disiiict, a justice of such outer district may take his txamination, an'i the information against him, in that district; and may commit him, and bind over the witnesses to give evidence at the trial ; and in short, proceed in all respects as if the ofTenoe had been committed within his jurisdiction. 2 Hale^ 51. B3' 24 Gr. 2. c. b5. If any person (against whom a warrant is issued) shall escape into any other county, (or district) any justice of that disti'ict, upon proof, on oath, of the Jiandwiiiing of (he justice granting (he warrant, may indorse his name thcrton, which I ^,^*!V^-,., 264 SufUfceiGi of it^t llfacf . i, shall be a sufBcient authority to the person to whom the warrant is directed, to execute it in such district, and carry the olSender before the justice who indorsed the warrant, or some other justice of the district, in case the offence be bailable; bat if not, then before a justice of the district where the offence was committed. By statute I 8f 2 P. Sf M. c. 13. In cases oi manslaughter ^ and felony^ justices of the peace are directed to take the examination merely, of the prisoner, and certify the same at the neit gaol delivery; since which enactment, it has been usual for the justices, in all cases of great moment^ to commit the prisoner for trial at the next assizes, or gaol delivery; and only in smaller matters — as in cases of petit larceny, and offences not capital^ to bind over to the quarter sessions. 2 Hale, 46. The commission also ad- monishes them, in all cases of difficulty, to let judgment in nowise be given thereon, unless in the presence of one of the judges ap- pointed to held the assizes for the district. It may be further ob- served, that the offences of murder and manslaughter ^ are not mentioned in the commission ; from which circumstance it may be inferred, that justices of the peace could never claim jurisdic- tion over these offences. Fitz.^Staund. 9H.4.2i. Coron. 457. Where a matter of right or title to property comes in question, the justices of the peace have then no jurisdiction. /?. v. Bur- nabi/, 3 Salk. 217. 2 Ld. R. 900. A justice ought not to act in any case in which he himself is interested, but should cause the party to be convened, or carried before some other justice, or desire the aid of some other justice vho is present. Dalt. 173. And in all cases where a justice Ij .npowered :o hear and deter- mine a matter out of sessions, lie s'.juldmake a record in writing, under his hand, of all the matters and proofs ; and all convictions should be returned by him to the f >sions. Dalt. c. 115. 2 T. R. 285. ' " The following summary of the practical duties of a justice of the peace, is taken from Archhold : ', , ' "" The Official Duties of a Justice of the Peace, ^'^ When complaint is made before a justice of the peace, of any indictable offence having been committed within the district to which his commission extends, it is his duty to have the offender brought before liim ; and if the offender be not already in custody, the justice may issue a warrant for his apprehension. And a jus- tice of the peace may, in all cases, issue his warrant in the first instance, whether U»e ufffnce imputed to the party be treason, felony, or misdemeanor. Bitff. v. Cononf, 1 Brad, ^' Bing. 548. It is not, however, very usual, in cases of misdemeanor, to issue '■^s 3t»fitUtn of 19^ itf^iKf . 265 warrant offender !r. justice lot, then mitted. iter, and miliation e%t gaol justices, trial at Iters — as ind over also ad- n nowise dges ap- rther ob- are not i it may jurisdic- ron. 457. [question, V. Bur- et to act ;ause the stice, or h. 173. d deter- Wiiting-, ivictions T.R. isilce of ■ A Of eace, of district offender :u8tody, d ajus- the first ntreason, 1^. 548. to issue ti wafnirit in the lirit in«(anrce, unless in aggrAtMirid ciiles^ or where there is a likelihood of the party's absconding, If be \St apprised of the complaint being made against him. In ordinary cases, it is usually deemed sufficient tO issue a summons in the first instance ; and if that be disobeyed, then to issue a warrant. Before a justice of peace grants a warrant for the appre- hension of an offender, it is prudent, in all cases, especially in cases of felony, to examine the person requiring the warrant, or his witnesses, upon oath ; and if upon such examination it appears either that the party has actually committed the offence imputed to him, or that there are reasonable grounds to suspect him of having committed it, the justice should grant the warrant. This examination or information may be taken in the following form : — Home District, > The information and complaint of A. B. of the to wit. 5 township of — -— in the home district, yeoman, taken upon oath, this day of in the year of our lord 1834, before C. D. esquire, one of his Majesty's justices of the peace for the said district. — The said informant, upon his oath saith, that — [^stating the facts, as nearly as possible, in the words of the party. '\ (Signed,) Taken and sworn at Toronto aforesaid, the day of 1834. :,^ Before CD. J. P. Porm of the Summons. ■ ft -'':-!tS-j .4fc i A. B. in Home DistHct, > To the Constable of the township of ' , to wit. J the said district. "Whereas A. B. of in the district aforesaid, labourer, hath this day been charged before me, C. D. esq. one of his Majesty's 'justices of the peace for the district aforesaid, on the oath of a credible witness., for that he the said A. B. on the — — day of — — in the year of our lord 1834, at the township of ■■' in the dis- trict aforesaid, did [^here state the offence.'] These are therefore to require you, forthwith to summon the said A. B. to appear before me, at my dwelling-house, in the township of ■ in the said district, on [Wednesday'] next, the [seconcZ] day of [^July] instant, at the hour of [e/even] in the forenoon of the same day, to answer the said charge, and to be further dealt with according ., to law. And be you then there, to certify what you shall have , done in the premises. Herein fail you not. Given under my hand and seal, at Toronto, in the district aforesaid, i [Jirst] day o([July,] year C. D. /. P. III J 269 M 3tmK^ nf; tfte mmk This lumnions should be yerved upon the party persotifilly, if possible ; but if, after "due diligence used to effect a personal ser- vice, it be found impracticable, from the party's concealing him- self, or causing himself to be denied, or the like, the summons may, in such case, be left for him ut his usual place of abode ; and if he do nut ajfterwards attend at the time and place specified in such summons, the justice, upon being satisfied of these facts, ivill grant his warrant. ijiMj}^.? '!.«]*-: fii.^ Form of the Warrant, '"'^'^ rian* «ft,»p.,; n»4'X' Home District, > To the Constable of the township of and to wit. 5 sll other peace ofiicers in the said district.'*^"'*^ Forasmuch as A. B. of in the district aforesaid, labourer, hath this day been charged before me, C. D. esquire, one of his Majes<> 8 justices of the peace for the district aforesaid, on the oath of a credible witness, for that he the said A. 6. on the — —> day of — — in the year of our lord 183 — , at the township of in the said district, did, &c. [here ^tate the offenc€.'\ These are therefore to command you, in his Majesty's name, forthwith to apprehend and bring before me, or some other of his Majesty's justices of the peace in and for the said district, the body of the said A. B. to answer unto the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, at Toronto, in the district aforesaid, the — — day of—— in the year of our lord 183 — . ■ ,u ..J . ' s hi CD. J, P. ^""^ The warrant may be directed to any person ; but it is usually directed to the constable of the district in which it is to be execu- ' ted ; for he alone can be punished for neglecting or refusing to execute it. It is not returnable at any particular time, but remains in force until it is executed. Mayhew v. Parker^ 8 T. R, 110. ^' Form of the Indorsement, District of Gore, > Forasmuch as proof, upon oath, hath been to wit. ) made before me, E. F. one of his Majesty's justices of the peace for the said district, that the name C. D. to the within warrant subscribed, is of the handwriting of the justice of the peace within mentioned : I do therefore hereby authorise who bringct*. to iirie this warrant, and all other persons to whom the said warrant was origin? -y directed, to execute the same within the said district of Gore. Given under my hand and seal, at Hamilton, in the said dis- trict of Gore, the — — day of — — in the year of our lord — — . • ! E. F. J. P. .(> '-JWkV, SutMtin of tUf Hearer. 26T>' rV •' As soon as the party accused is brought before the ju8lice» the latter calls upon the witnesses for the prosecution, to give their evidence, and administers to each the following oath :— . «9^«5o Oath. " You shall true answer make to all such questions as shall b« demanded of you — So help you God." The justice then proceeds to examine the witness, and takes down his desposition in writing. The following is the fornt of the— i.»'iorrt.f»n .; Deposition of a Witness. Home District, > The examination of C. D. of the township of to wit. i I labourer, taken on oath this . day of in the year of our lord 1834, before me, J. P. one of his Majesty^s justices of the peace for the district aforesaid, in the presence and hearing of A. B. charged this day before me, the said justice, for that he the said A. B. on at [he. describing the nature of the charge, as in the summons or warrant.} This deponent saith, that &c.] here insert the state; nent of the witness, as nearly as possible, in his own words ; then read the same over to him ; ask him if it is correctly taken down ; and get him to subscribe his name.] >o< Taken before me, the day and > CD. year above mentioned. y 3.P, If from the absence of witnesses, or from any other reasonable cauf>e, it become necessary or advisable to defer the examination for a time, the justice may do so. if the accused be in the cus- tody of the constable, under the warrant, and it be intended to resume the examination on the next day, or within some other short period, a mere verbal order to the constable, to bring the prisoner before the justice at the time appointed, will be sufficient ; and the prisoner remains in custody under the warrant, in the mean time. 2 Hale, H. 120. Bi;l if it be necessary to remand him for any considerable period, it may be prudent to commit him to prison in the mean time, under the following-— Of •jn Home District,' to wit. Commitment for Re-examination, C. D. esquire, one of his Majesty's justices of the peace for the said district, to the constable of the township of in the said district ; and to the keeper of the common gaol at Toronto, in the said district. n 1 -'A 268 Snmutn Of ttl^ yt «(ce. ^. li it' These are to command you, the said constable, in his said Majes- ty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol, the body of A. B. charged this day before me, the said justice, on the oath of A. O. on sus- picion that he the said A. B. [on , at 6fc, describing the offencel ; but inasmuch as E. F. a material and necessary vritness agamst the said A. B. resides at ■ a distance of- ntiles from the said dwelling-house of the said A. O. [or as the . 'e may be] and he the said A. O. hath not been able to procure altendance of the said E. F. but will use his best endeavour to ...... so 0(1 the ■■ day of instant ; you, the said keeper, are hereby required to receive the said A. B. into your custody, in the said common gaol, until _— the .— . day of instant, when you are hereby required to bring the said A. B. before me at ■ -, in the said district, or before such others of his Majesty's justices of the peace for the said district as shall be then and there present, to be re-examined, and further dealt with according to law. Herein fail you not. Given under my hand and seal, the — ^ day of ■ in the year of our lord 1834. C. D., J, P. Upon the day appointed by the commitment, the keeper of the prison will cause the accused to be brought before the committing magistrate, who will then proceed in the examination of the wit- nesses, in the manner already mentioned. If, upon the prisoner being remanded, or indeed at any time before the examination is finally closed, the justice be apprised that any person who can give material evidence against the prisoner will not attend voluntarily before him, he may grant the following 'Summons of a Witness, in Home District, > To the Constable of the township of 3 the said district. . Whereas information %ath been made before me, C. D. esquire, one of his Majesty's justices of the peace for the said district, that A. B. late of in the said district, labourer, \^on the day of . in the year of our lord 183 — , aty &fc. describing th« nature of the charge j as in a warrant or commilmcnt] ; and that E. F. of in the said district, yeoman, is a material and necessary witness to be examined concerning the same : These are therefore to require you to summon the said E. F. to appear before mc at in the said district, on the day of instant, at the hour of .— . o'clock in the noon of the same day, to testify his knowledge concerning the premises.— Herein fail you not. Given under my hand and seal, the —_ , day of . in the year of our lord 1834. C. D.. J. P. 3n»ttttn 0t tlie ^tHtt. 269 I Majes- y of the charged on sus- icribing ecessary of " as the procure ideavour . keeper, custody, d A. B. Dthers of shall be ealt with ^ ill the ,J.P. ser of the mmitting r the wit- any time apprised prisoner following I in esquire, irict, that Ititng* th6 and that >rial and These to appear In of the tmises.— A copy of this summons should, in strictness, be served per- sonally on the witness, and the original at the same time shewn to him. If the witness refuse to attend, upon being summoned, n warrant may be then issued to compel him. Warrant for a Witness, ' r To the Constable of in the home district. Home District, > Whereas it hath been made nppear to me, J. C. to wit. > esq. one of his Majesty's justices of the peace in and for the home district, upon the oath of A. O. that he the said A. O. was feloniously robbed of [state the facts'] and that he has cause to believe that C. D. of—— is a material witness to prove by whom the said rubbery was committed : and whereas it hath been duly proved on the oath of K. L. constable of — — — that the said C. D. was duly summoned to appear before me, this day, at the hour of in the forenoon, to be examined touching the .did robbery, but the said C. D. hath neglected and refused, and uoth neglect and refuse to appear before me, in pursuance of the said summons : These are therefore to require you to cause the said C. D. forthwith to come before me, and give such evidence and information as he knoweth concerning the said offence, that such further proceedings may be had therein as the law doth direct.-— Given under my hand and seal, Sec. The examination of the witnesses being closed, if it appear that a case, even of suspicion, be made out against the accused, the jus- tice then asks him if he would wish to say any thing in his own behalf ;— if he decline doing so, he should not in any manner be pressed, or interrogated further on the subject, and he should up- on no account be induced to say any thing upon a promise or hope, or even the slightest intimation being held out to him that it will be better or worse for him ; because, his confessioUt under such circumstances, would be afterwards inadmissable in evidence ^against him : but if he say any thing voluntarily j the justice must take it down in writing ; indeed, whether he savs or declines to say any thing in his own behalf, the justice, in pruJence, should take down in writing what passes upon the occasion, iti order that the^ judge, at the trial, may see that the justice has done his duty in this respect ; and this seems now to be imperative on the justices* by statute 3 W. 4. c. 3. <^ 2. by which statute the examination roust be taken before ^t&o justices, if the prisoner is lo be bailed ; but if intended that he should be committed to pr'son, then it may be taken before one justice only. The examination must not be upon oath. The following is the form. 'il r il if i ' m 270 SwAitt* ot t^r |)catr. Tht Examination of the Accused be/ore two Justket. V Oi«U Home District, } The examination of A. B. of labourer, taluii 3 this — — day of — — in the year of our i.jord 183 — before us, C. D. and E, F. esquires, two of his M:ijesiyV, pis- lices of t he peace for the district aforesaid. The said A. B. being charged bel'ore us, the said justices, on the oath of of' yeoman, for that he the said A. B. on ut &c. [describ- ing the offence aa in the warrant or commitmtnt] upon his examina- tion now taken before us, saith (I am not guilty of the offence with which I am charged. I bought the goods in question for five shillings, from a man whom I met on the road leading to ■ '■ ■ on the day before I was taken : I do not know the man's name, or where he lives, &.c. [stating what the accused says, as nearly as possible in the words he usesJ] or if the accused declines saying any thing in his behalf, the examination, after stating the offence with which the party is charged as above, may proceed thus :— And the witnesses against the said A. B. being examined in his presence, the said A. B. is now asked by me, if he wish to say any thing in his own behalf, whereupon the said A. B. saith (I shall not say any thing at present, but shall reserve what I have to say for the day of niy trial, [stating nhaiever the prisoner may say^ as nearly as possible in the words he uses.Jl Taken before us the day and ; A. B. year above mentioned. 5 - ■ . = '^ J .'* '. The accused should be asked to sign his examination, but if he refuse ti; rlo so, still this will not prevent what he has said upon his exaiYii nation from being given in evidence against him, if ne- cebi;ary, at the trial. R. v. Lamb, 2 Leach, 625. ' If, upon considering the evidence which has been given on the part of the prosecution, together with the examination of the ac- cused, there appear to be no case made out against him, the justice should discharge him. But if the evidence against the accused be such, that the justice thinks it should be submitted to a jury to con- sider and decide upon it, it will then be his duty to bind the pro- secutor or party grieved in a recognizance to prosecute and give evidence, and each of the witnesses in a recognizance to give evi- denced—This is done by stating to the prosecutor or witness, the substance of the recognizance and condition, stating it however in the second person, * vou acknowledge yourself to owe to our sover- eign lord the Icing, &fc.* It is only the recognizance of the pro- secutor or witness merely that can be required : the magistrate cannot compel either to find sureties. The only seeming exception to this is the case of a married woman, and a minor or infant under the age of twenty-one years, neither of whom can legally enter 3nntittit of tlir Vtucr* 271 Into a recognizance, but roust procure tome other perion to be- come bound for iiira or her. If the prosecutor or witness refuse to enter into the recognizance ; or in the case of a married woman or a minor, if either of them should neglect to procure a surety to enter into recognizance for them, the magistrate may commit them until the sessions he. or until such recognizance be given. Bennet V. Watson^ 3. M. ^ 5. 1. — a power, however, which should not be exercised without the greatest caution. It is further justice to consider whether the case be a proper one for the sessions or the assizest and bind the prosecutor and witnes- ses accordingly. — The following are the forms of the recognizances. arrtiwr : Recogmzonee to pTosecute oud gtve Evidcitce. Home District, ) Be it rer i in the the fourth, C. D. of before me, J. P. cd, that on the — — day of — — r of the reign of King William J district, yeoman, personalty came before me, J. f. oiic ui m Majesty's justices of the peace for the said district, and acknowledged himself to owe to our sove- reign lord the king, the sum of of good and lawful money of Upper Canada, to be made and levied of his goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if he the said CD. shall fail in the condition here- under written. Whereas one A. B. late of ■ ■ was this day brought before the justice above mentioned, by the above bounden C. D. and was by him charged, for that the said A. B. (on at Sic. [de»- cribing the offence as in the warrant]. Now, therefore, the con- dition of the above written recognizance is such, that if he the said C. D. shall and do appear at the next (general quarter sessions of the peace, or general gaol delivery) to be holden in and for the said district, and then and there prefer one bill of indictment for the said felony, against the saiu A. B. and shall then also give evi- ^dence there concerning the same, as well to the grand jurors that shall then enquire of the said felony, as also to them that shall pass upon the trial of the said A. B. that then the said recognizance to be void, or else to stand in full force and virtue. , Taken and acknowledged before J. P. ■•■) ^f.,. Recognizance to give Evidence. Home District) > Be it remembered, &)c. [the same form as before} I The condition of the above written recogni- zance is such, that if the above bounden E. F. shall personally appear at the next (general quarter sessions of the peace.f or gene- 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 ml UiM2^ 12.5 |jo ■^~ fflli^H ■ 22 12.0 •- I. U |.A o% % '/ Photographic Sdences Corporation 33 VtflST MAIN ST HIT WItSTIR.N.Y. KSM (716) •73-4903 i\ ¥ ^ 272 3Mi0flrr0 df tfir VeACt. ral gaol delivety) to be holden at •■'- — in and for the Mid district, ftfid then and there give such evidence as he knoweth, upon a bill of indictment, to be exhibited by C. D. of ■- 3reonian, to the grand jury, against A. B. late of—- — labourer, for (feloniously ttealing — — the property of the said C, D. \pr stating shortly the offence] and in case the said bill be found a true bill, then if the said £. F. shall then and there give evidence to thejuiors that shall pass upon the trial of the said A. B. upon the said bill of in-- dictment, and not depart thence without leave of the court, then this recognizance to be void, or else to remain in its full force. . If, in the opinion of the justice, the felony is clearly made out against the prisoner, he should upon no account be admitted to bail : but if the justice entertain a reasonable doubt of his guilt, then under the 3 W. 4, c. 3. the prisoner, even in cases of felony, excepting murder, may be admitted to bail; but in such case, the act expressly requires, that if there be but one magistrate present, he shall be detained until he be taken before two justices, who are by the said act, empowered to admit the prisoner to bail. It would therefore be wrong for any o»^ justice, in a case of felony^ to ad- mit to bail, under any circumstances ; but by ^3. of the same act, one Justice is competent to bail in cases of misdemeanor : under this act, the prisoner is entitled to cross examine the witnesses against him, but the justice or justices are not obliged to hear any evidence on his behalf, unless it shall appear to them to be meet, and conducive to the ends of justice, to hear the same. If the two justices should determine that the case is a proper one in which to receive bail for the prisoner's appearance, the amount of such bail will, of course, be left to the discretion of the justices, who will take care that a sufficient amount is required, from good and sufficient sureties, to ensure the appearance of the accused : and if the prisoner be unable to procure such bail, he should then be committed by ^wo justices to gaol, until he find such bail, or be otherwise delivered by due course of law. On the other band, if the case be clearly made out against the prisoner, and the justice or justices entertain no reasonable degree of doubt as to ihc pri- soner's guilt, the prisoner should then be committed, and not ad- mitted to bail. Warrant of Commitment. ~ Home District, ) J. P. esquire, and G. D. esquire, two of his i Majesty 's justices of the peace for the said district, to the constable of in the said district, and to the keeper of tke common gaol at Toronto, in the said district : These are to command you the said constable in his Majesty's name, forthwith -'''m-mii,..j^^''afp^:%:; 1 iftid district, , upon a bill nan, to the (feloniously ting shortly bill, then if lejui ore that id bill of in-^ court, then full force. ly made out \ admitted to of his guilt, ies of felpny, ich case, the irate present, ices, who are il. It woulii elony,^ to ad- tbe same act, eanor: under the witnesses d to hear any^ to be meet, a proper one [, the amount the justices, i, from good [he accused : should then ;h bail, or be ither band, if id the justice IB to ibc pri- eiid not ad- I, two of his ] said district, |he keeper of i'hese are to le, forthwith 3twHttu of llir ilTArf . 273 ' to coDvey and deliver into the custody of the said keeper of the said, common ^aol, the body of A. B. charged this day before us, the said justices, on the oath of C. D. of , farmer, and others, for that he the said A. B. f on the ' day of — — in the year of our Lord — — at in the said district, ten pieces of the current gold coin of this province called sovereigns ; one wool- len cloth coat ; and one linen shirt ; of the monies, goods and chat- tels of the said C. D. feloniously did steal, take and carry away) ; and you the said keeper are hereby required to receive the said A. B. into your custody, in the same common gaol, and him there safely to keep until he shall be thence delivered by due course of law, [or, if it be determined to admit him to bail, then say, < until he shall enter into recognizance, with two sufficient sureties, him- self in pounds, and each of the said sureties in pounds each, to betaken before us, or any two uf his Majes'y's justices of the peace for tiie said district, for his appearance before (he justices at the next general quarter sessions of the peace, or general gaol delivery, to be holden in and for the said district, then and there to answer to our said sovereign lord the king, for and concerning the felony aforesaid, (or until he shall be thence delivered by due course of law.) Herein fail you not. ^ Criven under our hands and seals, the day of , Ift the year of our Lord 183 — . The Recognizance of Bail. ,^ Home District, > Be it remembered, that on the — — day of to wit. V in (he •— — year of tite reign of King William the fourth, A. B. of yeoman, G. H. of— — yeoman, and J. K. of ' yeoman, came before us, J. P. and R. L. esquires, two of his Majesty's justices.-of the peace for the said district, and severally acknowledged themselves to owe to our said lord the king, that is to say, the said A. B. the sum of — — pounds, and the said G. H. and J. K. the sum of ——pounds each, to be re~ spectively levied of their lands and tenements, goods and chattels, if the said A. B. shall make default in the performance of the con- dition endoned hereon (or hereunder written). The condition of this recognizance is such, that if the within (or i^bove) bounden A. B. shall personally appear (at the next general quarter sessions of the peace, or general gaol delivery) to beholden in and for the said district, then and (here to aniiwer to our said sovereign lord the king, for and concerning the (felonious taking and stealing of the property of A. M. of— yeoman, [des- cribing the offence shortly] with the suspicion whereof the said A. B. stands charged before us the said justices, and to do and receive S, • ■ ■}■ " r ' i ,'.: 274 3n»iittn af tfir Heart* what shatl by the court be then and there enjoined him, and shall not depart the court without leave, then the within {or above) writ- ten recognizance shall be void. Upon the recognizance being taken, if the defendant have ap- peared voluntarily, or if he be in custody of the constable, the justice discharges him as of course; but if he be in prison, the jus- tices, upon application, issue the following. Warrant of Deliverance* J. P. and R. L. esq. two of his MajeilyV > J. r. esq, 3 justices of the peace for the said district, to the Home District, to wit. keeper of his Majesty*s gaol at Toronto, in the said district. For^ asmuch as A. B. late of — — in the said district, labourer, hatH before us found sufficient sureties' for his appearance, before thif justices at the next general quarter sessions of the peace, (or beforo his Majesty's justices at the next general gaol delivery,) to be hoi- den in and for the said district, to answer to our sovereign lord (M king, for and concerning the [deacribing the offence thorilyt ai in the recognizance'] for the suspicion whereof he was taken and coiA- mitted to your custody, at the said gaol : We therefore hereby command you, on behalf of our sovereign lord the king, that if the said A. B. do remain in your custody for the said cause, and (bt no other, you shall forbear to detain him any longer, but that you deliver him thence, «nd suffer him to go at large, and that upon the pain that will thereon ensue. Given under our hands and seals at " ■ — in the district aforesaid, the ■ ■ day of ■ 183-*-. lutice or ji|$tioe> ifaall nubscribe i NoTtt.— That the 3 W. 4. e. 3. requires that such 1 1 such examinationB, informations, bailments and all such examinations, informations^ bailments and recMpiizances, and deliver the •ame to the public prosecutor, before or at the opening ofthe cooit, on pafai of being fined by the count. It is in the discretion of a magistrate, when he takes the ezami- ntrtion of a pvsi^oner, whether he will allow the presence of an attorney or other legal adviser^ either for the prisoner or prosecu- tor: it cannot in either case be claimed as a matt' f rightf as information might thereby be obtained and conveys .lich would defeat the course of justice. In the case hovtt^ver, of a trial or summary conviction, before a magistrate, there it a difference; but in the latter case, it is reasonable, that a party upon his trial should have professional assistance. Cox, v. Coicridgtt \ B, if C» 37. R, V. Barron, 3 B, fyA, 432. R. v. Jt, of Staflbrdshire, 1* Chit* R^, 217. .«si';jV/ It seems that a magistrate may commit a party for a contenpt, wbo makes use of scandalous and insulting language to him, whilst in the execution of his office ; but as such a commitment is by wiay of punishment, it roust be made by warrant, in writing. Mayhtw 3tt0tfcrfii 0f ttir iPrurr* 275 and thttll )ve) writ- hftve ap- aUe, the 1, the ju9- iiaujf A Majesty^s ictp to the ct. For- irer, hatN before thtf [dr before to be hd- n lord tlM fily, as in and coifi- rc hereby that if the , and dolt t that you that upon and seals •Unobacrib^ deliver the min of being he exaitil- nce of an r prosecu- ich would a trial or ence; but ial should fy C. 37. 1. Chit* contenptf lim, whilst is by wtiy Moyhtvf V. Locka, 7. Taunt. 63. 2 Marsh,S71, R. v. Revel, 1 iSi^r. 43iO.; and inast not be a general one * till the party is discharged by due course of law,' but must be for a time certain. R» v.Jamet, 5 B. fy A, 894. The better course for a magistrate to adopt in sdch cales is, first, to require the offender to find sureties for his good behaviour, and ii default of his doing so, then to commit him until the next quarter sessions* unless he sooner find such sureties, and enter also into his own recognizance for his good behaviour* R, v. Langley, 2Ld. R. 10; 30 per Holt, C, J. A justice of the peace is empowered, in all • matters properly brought before him in his judicial character, or by particular stat- utes, to administer an oath ; but it is very questionable how far he is justifiable in taking a voluntary affidavit, in any extrajudicial matter, as is now too frequent a practice upon every petty occasion ; for it if more than possible, that by such idle oaths, a man may frequently in foro conscientia incur the guilt, and at the same time evade the penalties of perjury. 4 Bl, Com. 137. Lord CooJeCf in- deed, says, that it is a high contempt, to administer an oath not war- ranted by law, and that the offence is punishable by fine and imprisonment. 3 JiM^ 165.: and in a case, Lord Kenyan said, that * he did not know but a magistrate subjected himself to a cri- minal information, for taking a voluntj^ry extra-judicial a^d^)r|t. Wm, Free, 14. 3 Bums J. 588.^.:'^^,^^ .^"j^^^,^,,.,'''.? -f^Vj-jjiji^ noqulutiJ Of their LiabUity, Indemnity and Protection. 1. As every person ought to be heard in his own defence, before he is convicted, if a justic** therefore, in the case of a summary conviction, proceed against a party without previously summonihi; bim to appear, it is such a misdemeanor as will render him liable to a criminal information. 1 Salk. 181. If a justice also, will not, on complaint to him made, execute the duties of his office as a magis- trate, or is guilty of any wilful misconduct, the party grieved may not only move for an information, but may also apply to put him out of the commission. Cramp. 7. 2 Atk. 2. 17. R. 692. 7 T. R* 374. Where a justice, however, refuses to proceed in any mat- ter which he is authorised or required to do by act of parliament, and his refusal does not arise from any corrupt or improper mo- tive, the proper course for the party complaining, is to move for a mandamut to compel him to proceed. JR. v, Todd. 1 Str. 530. Where a criminal information is applied for against a magistrate, the question for the court is not whether the act done be found, on investigation, to be strictly right or not, but whether it proceeded from an uiyust, oppressive, or corrupt motive, or from mistake or error only : in the latter case, the court will not grant an infcrma- > m. n ^ I i i 276 3u^ttu of tiie He ner* tiuHt but leave the party complaining to his remedy by action or indictment, for it must be a case of clear, and' apparent partiality, or wilful misbehaviour, to induce the court to proceed by informa- tion against a magistrate. R, v. Barron^ 3 B, fy A* 432. 1 Burr. 556. 2 Burr. 1162. The party complaining, also, must make a prompi application to the court, otherwise this proceeding will not be entertained: thus, where the facts complained of against a ma- gistrate, took place twelve months before hand, an information was refused. R. v. Bishop^ 5 B. fy A. 612. Neither is a justice liable to be punished both ways, that is, criminally and civilly ; for before the court will grant an information, they will require the partv' to relinquish his civil action, if any such is commenced. R, V. Fielding, 2 Burr. 719. ; and so in the case of an indictment, the attorney general, on application, will grant a noli prosequi^ if it appear to him a prosecutor is determined to carry on a civil ac- tion at the same time. lb. S When a justice is convicted on an information, he must appear in person, to receive judgment. R. v. Harwood, 2 Sir. 1088. 3 Burr. 1716. 1786. A justice of the peace, however, is, upon all occasions, strongly protected by the law, in the just execution of his office ; for though the judgment be wrong, yet, if his intention is pure, the court of king's bench will never interfere by way of punishment. R. v. Young, 1 Burr. 556. R. v. Cox, 2 Burr. 785. Nor will the court even grant a mandamus against him, to command him to do what may render him liable to an action. JR. v. Dayrell, 1 B, fy C. 485. Where a magistrate, however, in committing a party for further examination, commits him for an unr> passes and other offences,. ......».•.......•..««•.•• 8 6 I And in cases before a single justice, where the penalty ii r, oo higher than £5, for the conviction,.. ..••.. ....•••• ,2 6 And for the warrant to levy,. ...•.•.....•.•.••••••••• 2 6 Commitment for insulting a Justice of Peace in the execution of his office. TooNB. jTo th|§ constable of and to the keeper ^f the c^gjon gaol j..^i to wit. Whereas A. B. being personally present this day at I , before roe J. C. esq* one of his Majesty's Justices of the peace in and for the —— — district, to answer and make his defence to a cert^n information before me exhibited against him [state; the offence] aftd being so personally presrait before inef hatb this day been guilty of divers gross insults and' contemptuous behaviour to me, the said justice, then being in the actual execution of my office as sucli justice of the peace as aforesaid, by accusing me of parti- ality and injustice in the execution of my office, [ or as the case -fiuty be] And whereas the said A. B. in consequence of such his /; Insolent and contemptuous behaviour, is now here, by me^ the said 'justice, required to find sureties for his good behaviour, that uto say, two sufficient sureties to become bound with him in a recog- ynizance in the sum of ^h, conditioned for the personal ap- '^^pearance of the said A. B. at the next general quarter sessions of "' the peace to be holden in and for the said district, and that in the mean time he should be of good behaviour ; but the said A. B. bath refused to find 'sureties and to become bound in such recognizance as aforesaid : these are therefore to command you, the constable of , to convey and deliver the said A. B. into the custody of the keeper of the common gaol at in the said district, together with this my warrant ; and I hereby command you, the said keeper, to receive the said A. B. into your custody in the said comipaon gaol, apd him there safely to keep until he find such gureties and .nnn wamvumpitiu^n^ 279 3 6 1 S Q 2 6 I when tb« eo S 9 6 7 6 2 6 O 10 1.41 ^ 6 8 6 ionqf JUm mon gaol t this day :eg of the is defence 'state the this day iviour to ny office of parti- the case such his the said hat is to a recog- ooal ap- ssions of Bt in the B. hath ^nizance instable stody of ogether keeper, somipdon ties and 71 eAter into such recognisance, or be from thence otherwise delivered ia due course of law. Given under my hand and seal this i day of I in the year of our Lord 18 — . ' '> Another Form.'— (Toonk.) To the Keeper of . ■ to wit. Receive into your custody the body of A. B. here- with sent you by me, J. C. esquire, one of his Majesty's justices of the peace in and for the -— district, and charged by me, the said justice, upon the view of me the said justice, for insolent behaviour, by insulting me, and obstructing me in the due execution of my office as a magistrate as aforesaid, against the peace of our lord the king^ and him the said A. B. safely keep in your custody for want of sureties, or until he shall be discharged in due course of law ; and for so doing this shall be your sufficient warrtmt.-— Given, &c. '*^^^> Another Form. — (Toone.) ■' ' with Insolently and impudently misbehaving himself when under examination before me, the said justice, and S. P. esquire, another* of his Miijesty's justices of the peace for the said ■ districi, in talking obscenely, and expressing himself with the greatest contempt to us, the said justices, during the time he was under the said Examination before Ui», against the peace of our lord the king, Stc. ^iNoUu «)f BfotumfoT have to file a Criminal Information ogainH a •^ Justice, (Toone.) To 01 A. 'Esq. one of his Mayesty*s justices of the peaceV f^'^and for the district. Take notice, that 1 shall move his Majesty's court of king's bench, at Toronto, on the — — day of next term, or so soon aAer as counsel can be heai^d, for leave to file a criminal ihfo>i nation against you, in the crown office, for misconduct in your oiii' e of justice of the peace, in illegally and without any reasonable or probable cause whatsoever, causing me to be apprehended, on the ' day of ■ last, and to be committed to the common gaol at — — in the said district, and there to be detained for a long space of time, to wit, for the space of days, on a supposed charge of—. Dated, &c. Yours, &c. A. B. y/' KIDNAPPING. I Is the forcible abduction or stealing away of a man, woman or child, from their own country, and sending them into another. ■ " 1 2(W-, Sftw^iV'iinicDk-tct. 1 1 I Bi* Com.p» 218. 15 J5J. ; and is punishable at common law wiii fine, imprisonment and pillory. lb. : and also by statute 11 b 12 W* 3. c. 7. though principally intended against pirates, it is en- actedi that if any captain of a merchant vessel, shall (during his being abroad) force any person on shore, or wilfully leave him be- hindi or refuse to bring home all such men as he carried out, if ab)e and desirous to return, he sholl suffer three months imprison- mejDt. Upon this subject the learned commentator on BlacJaionet (ChrisitanJ has this note :-~Where a child is stolen for the sake of its. clothes, it is the. same species of felony as if tbe.clothes were stqlen, without the child ; but, without referring it to that class of offences, .stealing a child from its parents is an act so Shocking and horrid, that it. would be considered the highest misdemeanor, punishable by fine, imprisonment and pillory, upon the same prin- ciple on which it was decided to be a misdemeanor to steal a dead body from a grave. ;^'iii»liia KING'S BENCH. i i The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either move their proceedings to be determined here, or prohibit their progress in the court below. It superintends all civil corporations ; it commands magistrates and others4o do what their duty requires, in every case where there is no specific re- * medy ; it protects the liberty of the subject by speedy and sum- i mary interposition, and is empowered to find redress in every > matter of inquiry. 2 Haw. c. 3.^ 3* It takes cognizance both of ^^ criminal and civil causes. On the crown side, its jurisdiction ex- -V tends to all manner of offences, from high treason down to the ^ niost trivial misdemeanor, or breach of the peace, and it may ' award process into any part of the province. Into this court, also, indictments from all inferior courts may be removed, by writ of certiorari, and tried either at bar, or by writ of nisi priust at the assizes, for the district out of which the indictment is brought. In most cases of misdemeanor, it is in the discretion of the court of king's bench, to inflict such fine and imprisonment, and even infamous punishment, (not prohibited by statute) on offenders, as the nature of the crime requires ; and the court may commit to any prison in the district. 2 Haw. c. 5.^ 5. The court of king's bench, in this province, was created and ^■ established by statute 34 G. 3. c. 2. KING'S EVIDENCE. Is obtained by the admission of an accomplice against his fellows upon an implied confidence, which the judges of gaol delivery mintti^9M(ntm^''^ 281 lawwiii 11 &12 it u en- uring his 9 him be- ll out, if nipriioa- tcJcttonet the sake ihes were class of ihocking iroeanori me prin- il a dead lent. It ithorily, ed here. tends all do what cific re- id sum- I every both of tion ex- n to the it may rt. also, writ of , at the ht. le court id even lers, as ^ to any id and fellows elivery haite usually countenanced and adopted, that if such accomplice ' makes a full and complete discovery of that and of all other feki* !' nies, to which he is examined by the magistrate, and afterwards^ gives his evidence without prevarication or frnud, he shall not him- ' self be prosecuted. 4 Bl. Com. 331. This discretionary power, however, thus exercised by justices of the peace, is founded in ^ practice only, and cannot controul the authority of the court of > gaol delivery, and exempt the accomplice, at all events, from being prosecuted ; for a motion must be made to a judge for leave to ad- k roit an accomplice to be a witness, though the judge, unless he should fee some particular reason for the contrary, will prefer the : one to whom this encouragement has been held out by the justice < of peace. Ibid, Such admission to be a witness, does not tntitU *■ the accomplice to a pardon of right, but amounts, merely, to » II promise of a recommendation to mercy, op, <^i- .ri.m Until the trial, the accomplice so to be admitted as k(ng*S eVI^'^ dence, will, of course, be kept in custody, as well as the principal. ' See also further on this subject, title * A'pprmtrs^ ante p. 31. KING'S STORES. By 33 Kl, c. 4. 22 C. 2. c. 5. Ifany person having the charge or custody of any of the king*8 armour, ordnance, ammunition, shot, powder, or habiliments of war, or of any victuals provided for victualling the army, shall for lucre or gain embezzle, purloin, or convey away the same, to the value of 20s. or shall feloniously steal or embezzle, any of his Majesty^s sails, cordage, or any other of his Majesty's naval stores, to the value of 20«. he shall (on pro- secution within a year) be adjudged guilty of felony. ..^j^ . J;': L> . I PI f I S82 MMuMmn um crtuim. »f< t i9 B|f te 10 IT. cw 41. 17 a a. 0.40. ^10. 11. No penon, ether than pertont Mtborised, by contracting with hit Maj«ity*t affictrti shall nake any itorei of war or naval ttoret, with the King's naritt that is, cordage of three inches and upwards, with a irhite thread laid the contrary way, or any smaller cordage, with a twine in lieu of white thread, laid the contrary way ; or any con- vas with a blue streak in the middle ; or any other stores with the broad arrow, on pain of forfeiting the same, and jSlOO. with costs, (on conviction at the assises or sessions) half to the king and half to the informer. By 9 10 fV» c, 41. Any such person, in whose custody such goods or stores, so marked, (or any timber, thick stuff, or plank, Bsarked with the broad arrow, 9 G. 31. c. 8. ^ 3.) shall be found, shall forfeit the same, and £200. with costs, in like manner, and be imprisoned till paid, unless he shall upon trial produce a certifi- cate from the principal officers of the navy, expressing the quantity, and on what occasion he came by them. By (7. e. 8. ^ 4. The court may mitigate the penalty, and as ihey see cause, commit the offender to gaol till payment, or may punish him corporally by public whipping, or hard labour for six months, or a less time. By 12 0» 3. c. 24. ^ 1. If any person within this realm, or in any of the islands, countries, forts or places thereunto belonging, shall wilfully and maliciously set on fire, burn or destroy, (or aid therein) any of bis Majesty's ships of war, whether on float, or building in any dock-yard, or building or repairing in any private yard, or any arsenal, magazine, dock-yard, rope-yard, victualling office or buildings, belonging thereto, or any military or naval stores therein deposited, he shall be adjudged guilty of felony. The provisions of this act are by the 3 fV* 4. c. 4. confirmed, in relation to this province. LANDLORD AJVD TENANT. DUtrtu for Rent in Arrear. 1. Distress for rent, must be for rent in arrear ; therefore, it may not be made on the same day on which the rent becomes due ; for if the rent is paid in any part of that day whilst a man can see to count money the payment is good. 2. It mast not be af\er tender of payment. 2 Inst. 1(17. 3. Persons having rent in arrear upon any lease determined, may distrain for such arrears after the determination of the lease in the same manner as if it had not been determined ; provided that such distress be made in six calendar mouths aAer the determination of such lease, and during the con- JUinlitorlv aim IMMt ^3 penon, Maj«ity't wilh the df, wilh a lage, with ' any con- ■ with th« rith costs, 1 and half ody such ir plank, be found, nner, and I a certifi- qnantity, y, and as :, or may or for six lira, or in ilonging, ft (or aid float, or y private ctualling or naval ony. irmed, in ... J .• ' Oft it may due ; for can see be after n arrear after the lot been calendar he con- linuance of such landlord's title or interest, nod during the pMsess- ion of the tenant from whom such arrear became due. 8 Aiu e» 14. ^ 6 ; 7. Before the statute of the 17 C. 2. c. 7. In case a distress was too little, where sufficient distress was to be had, a man could not distrain again be the demand never so great. Mo, 7. Com, 646. But now, by said statute, in all cases where the value of the cattle distrained shall, not be found to be of the amouut distrained for, the party to whom such arrears were due, his executors or ad- ministrators, may distrain again fur the residue. % 4. So, in like manner, where the distress is made by virtue of the warrant of a justice of the peace, in nature of an execution : and the distinction appears to be this,— where a person hath an entire duty, he shall not split the entire sum, aud distrain for part of it at one time* and for part of it at another time ; and so toties quotiti for several times, for that is great oppression: but if a man seixeth for the whole pum that is due to him, and only mistakes the value of the goods seized, there is no reason why he should not afterwards complete his execution, by making a further seizure. BurroWt Mansfield, 689. If any distress and sale shall be made for rent in arrear and due, when none is in truth due, the owner shall recover double value, with full costs. 2 W. Sess, 1. c. 5. ^ 6. a ^i/.u \iiV*.t^M ' What Oooda may he Distrained^ and what not. ;fo«^ Distress for rent must be of a thing whereof a valuable property is in some body ; and therefore dogs, bucks, does, conies, and the like, that are /era; naturco, cannot be distrained. 1 Inst, 47. Al- though U be of valuable property, as a horse, yet, if when n man or woman is riding on him, or an axe in a man's hand, cutting of wood, and the like, they are for that time privileged, and cannot be distrained. 1 Inst, 47. And it hath been held, thnt the horses joined to a cart, with a man upon it, cannot be distrained for rent, (although they may for damage feasant ) but both cart and horses may, if the man be not upon the cart. 1 Vent. 36. Valuable things shall not be distrained for rent for benefit and maintenance of trades, which by consequence are for the commonwealth; and are there by the authority of law ; as the horse in a smith's shop ; ^i^nor a horse in a hostry; nor the materials in a weaver's shop for making of cloth ; nor cloth or garments in a tailor's shop ; nor sacks of com or meal in a mill; nor any thing distrained for damage ji feasant; for it is in the custody of the law, and the like. 1 Inst, 47. Beasts belonging to the plough shall not be distrained, (which is the ancient common law of £ngland, for no roan shall be distrain- ed by the utensils or instruments of his trade or profession, asthe axe of the carpenter, or the book of a scholar,) while goods or y. ^i ,# r ?*^!' ;*"' I- .J ^ 2B4 jutmiovy uta^ w^tnnnt other beafts miy be distrained. 1 /n«<. 47. But this rule holds odly in distresses for rent arrear, and the like ; but doth not extend to cases where a distress is given in the nature of an execution, by any particular statute, as for poor rates, and the like. 3 Salk. 136: Furnaces, cauldrons, or other things, fixed to the freehold, or the doors or windows of a house, or the like, cannot be distrained. 1 In$t. 47. Things for which a replevin will not lie, so as to be known again, as money out of a bag, cannot be distrained. 2 Bad, Abr. 109. But money in a bag, sealed, may be distrained, for that the bag sealed may be known again. By the 2 W, Sess, 1. c, 5. Persons having rent, in arrear, on any demise lease or contract, may seize and secure any sheaves or cocks of corn, or corn loose, or in the straw, or hay being in any barn or granary, or upon any hovel, stack or rick, or otherwise, upon any part of the land charged with rent, and may lock up or detain the same, in the place where found, in the nature of a distress, so as the same be not removed, to the damage of the owner, out of the place where found and seised, but be kept there (as impounded) till replevied or sold. ^3. Also, by the 11 ^.2. c. 19. The landlord may take and seise corn, grass, hups, roots, fruits, pulse or other pro- duct growing, as a distress ; and the same may cut, gather, make, cure, carry, and lay up, when ripe, in the barns or other proper place, on the premises ; and if there shall be no barn or proper place on the premises, then in any other barn or proper place which he shall procure, so near as may be to the premises ; the ap- praisement whereof shall be taken when cut, gathered, cured and made, and not before. ^ 8. And notice of the place where the goods so distrained shall be lodged, shall in one week after the lodging thereof, be given to the tenant or left at the last place of his abode. ^ 9. And generally, whatever goods and chattels the landlord finds upon the premises, whether they in fact.belong to the tenant or a stranger, are distrainable by him for rent, with the exceptions however above specified ; for otherwise, a door would be opened to infinite frauds upon the landlord ; and the stranger hath his remedy over by action on the case against the tenant, if by the tenant's default the goods are distrained. 3 Blackstone^ 8. So where a stranger's beasts escape into the land, they may be dis- trained for rent, though they have not been levant and couckant, provided they are trespassers ; but if the tenant of the land is in default in not repairing his fences, whereby the beasts came into the land* the landlord cannot distrain such beasts, though they have been levant and couchant, unless he have caused notice to be given to the owner, and the owner suffers them to remain there afterwards. Ltittc. 364. m; i \mfi=!r.^_ vrr "ipt^ j_ ,,■ ■ r.^tP^rrg '3»;««aitt» Haniilotv mif SritiJtH tm rule holds not extend cution, by Salk. 136: >ld, or the trained. 1 10 as to be id. 2Bac. ained, for ^. Sess. 1. r contract, orn loose, ' upon any ' the land ne, in the e same be lace where replevied llord may other pro- ler, make, ler proper or proper )per place s ; (he ap- ured and here the after the t place of atiels the elong to with the or would stranger [tenant, if cstone, 8. ky be dis- \ouchantt ind is in ime into |gh fhey loticc to kin there A rent may not be distrained for in the night, but In the day time. 1 Tnst, 142. for before sunrisingor after sunset, no man may distrain but for damage feasant. Mirrourf c. 2. ^ 26. '' . Distress how to be Demeaned. ' By 11 0.2. c. 19. any person distraining may impound or otherwise secure the distress of what kind soever it be, in such place or in such part of the premises as shall be most convenient ; and may appraise and sell the same as any person before might have done off the premises. <^ 10. Cattle distrained may not be worked or used, unless for. the owners benefit, as a cow milked or the like. Cro» Jac, 148. and if the distress be lost by the act of God, as if the distress dies in the pound, without any default in the distrainer, in such case he may distrain again. \ Salk. 2AQ. Qy Stat. 2 W. Sess. 1. c. 5. Where any goods shall be distrain- ed for rent, and tlie tenant or owner shall not, within five day* after such distress, and notice thereof left at the premises, replevy the same, the person distraining, with the sheriff, under sheriff, or< constable of the peace, shall cause the goods distrained, to be ap*' praised, by two sworn appraisers, (whom such sheriff or constable shall swear) to appraise the same truly, and after such appraise*;, ment, the same shall be sold for the best price that can be got, for< satisfaction of the rent and charges of the distress, appraisement and sale ; leaving the overplus (if any) with the sheriff, under she<4q riff or constable, for the owners use. biiu ^tth/iritK Fraudulent removal of Goods^ 4**» ' -' '^ ^'^^?i^^ ' by»i ilti By the 11 G. 2. c. 19. ^ 1. If any tenant for life, years, at. I will, sufferance, or otherwise, shall fraudulently, or clandestinelyi'if convey off the premises his goods or chattels, to prevent the land- ^ lord from distraining, such landlord, or any person by him law- f fully empowered, may, in thirty days next after such conveying f away, seize the same, wherever they shall be foond, and dispose i' of them in such manner as if they had been distrained on the "i premises. Sec. 2. But no landlord shall distrain any goods 8o]d^;( bona fide, and far a valuable consideration, befcre such sehtire \ made, to any person not privy to such fraud. Sec. 3. And if any ! tenant shall so fraudulently remove and convey away his goods ^% or chattels, or if any person or persons shall wilfully and know* 1 ingly aid or assist him in such fraudulent conveying away or <) carrying off of "^ny part of his goods or chattels, or in concealing & the same, every person so offending shall forfeit to the landlord double the value of such goods, to be recovered in any court of K ■r-«!*5S(r, 1 1 n ■: t) w .^, ,..,l4ll**w^' 286 x WMM^M mm Mmunt record. See. 4. But if the goods and chattels so fraudulently carried off or concealed shall not exceed the value of jC50, the landlord, or his agent, may exhibit a -complaint, in writing, before ^100 justices of the peace of the same county or division, residing near the place where such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact, and all proper witnesses, upon oath, (or if a Quaker, upon affirmation) and in a summary way determine whether such person or persons be guilty of the offence with which he or they are charged ; and to inquire in lik,e manner of the value of such goods and chattels^ and upon full proof of the offence, by order under their hands and seals, the said justices shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord, his bailiff, servant or agent, at such time as the said justices shall appoint ; and if the offender or offenders, having notice of such order, shall refuse or neglect so to do, they shall, by their warrant, levy the same by distress ; and for want of such distress, may commit the offender or offenders to the house of correction, there to be kept to hard labour, without bail or main- prise, for the space of six months, unless the money so ordered to be paid as aforesaid shall be sooner satisfied. Sec. 5. Persons aggrieved by order of such justices, may appeal to the next general or quarter sessions, who may give costs to either party. Sec. 6. And where the party appealing shall enter into recogni- zance, with one or two sureties, in double the sum so ordered to be paid, with condition to appear at such sessions, the order mean time, clandestinely kept in any ce locked up, jch goods or for arrears of rd, bailiff, re- ake and seize, calling to his sace officer of >, (oath being >nable ground the day time, ]e, out-house, >od8 and chat- c done if they Cate of Tenani holding over. 2»7 By the 4 G. 2. c. 5S i Bjny tenant for Hfe, or yean, or other person who shall come ..to possession by, from, or under him, shall wilfully hold ovei any lands after the determination of such term, and after demand made, and notice in writing given for de- livering the possession thereof, he shall, for the time be shall so hold over, pay double the yearly value, to be recovered by action of debt in any court of record* ^ 1. By 11 Gr. 2. c. 19. ^18. If any tenant shall give notice of his intention to quit the premises at a time mentioned in such notice, and shall not accordingly deliver up the possession at the time in such notice contained, he, his executors or administrators, shall from thenceforward pay double rent^ to be recovered in like man- ner as the single reiU. _ Deserting the Premises, ^ 16. If any tenant at rackrent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in arrear for one yearns rent^ shall desert the premises and leave the same uncultivated or unoccupied, so as no sufficient distress, can be had, two justices, (having' no interest in the pre- mises) may at the request of the landlord go upon and view the same, and affix on the most notorious part of the premises, no- tice in writing what day (at the distance of fourteen days at thq least) they will return to take a second view, and if on such second view, the tenant shall not appear and pay the rent, or there shall not be sufficient distress on the premises, then the justices may put the landlord into possession, and the lease as to such demise shall from thence be void. <^ 17. But the tenant mav appeal to the next jnstice or justices of assize, who may award costs to either party. ,1 ^^ Rent how far recoverable by Executors, ' By the 32 H. 8. c. 37. It is enacted that the executors and ad- ministrators of any person to whom any such rent shall be due and not paid at the time of his death, may distrain upon thb pre- mises, so long as they continue in the possession of such tenant, or of any other person claiming under him. Distress by Warrant of Justices of the Peace, See an^e title '* distress," p. 150. Notice to quit. — (Archbold.) '^'I'ffi Sir, ^^^: I hereby (as agent for Mr. John Nokes, your landlord, add on his behalf), give you notice to quit, and deliver up possession » •-i*7'-r'— **' ^|f|f^''t'''|- ,ito JAMES NOKES.* . * Warrant to Distrain. — (Archbold.) ■■■^ IWiL, ^uoY ■ ■• ■ .... ..,.;<":! him To Mr. A. B., my bailiff, greeting: Distrain the g09f|9fin4 chattels of Joseph Stiles, [in the house he now dwells In, or " up- on the farm he now occupies," &c. as the cast may 6e,] situate at ' '■ in the district, for pounds, being thQ,j|f|}o^|T| of [one year's] rent due to me for the same, on the day ofi ■ lf^ltf^ and for your so doing, this shall be your sufficient., ]iii:arf!^i||^|}^^ authority. Dated this — day of 183— • v-j ^')>i|,^q;1A JOHN NOKES: Inventory of Goods Distrained, f A P, inventory of the several goods and chattels drstrameq uy roe whose name is here-under written, the — - day of— — in'tlie year i ■ ' in the houses, out-bouses and lands, of A. T. in — — , by the authority, and on the behalf of A. L. of — for, ^ — — pounds arrears of rent due to him the said A. L. qhis Yi'^^khmSi In the Dwelling-House, One Table, Six Chairs, Sec. In the Couf'House. Six Cows, Two Calves', &c. Notice of Distress. ■ \\ Mr. A» T. .■^ .■^■:»' Take notice, that by the authority, and on the behalf of your landlord, A. L. I have this , day of in the year of our lord • distrained the several goods and chattels specified in the schedule hereunto annexed, in your houses, out-housed and grounds, at -, for ...— pounds, arrears of rent due« to htm the said A. L. ; and if you shall not pay the said rent ar due and in arrear as aforesaid, or replevy the said goods and chattels, as tenant r the end the—- — ES. * ,A Jmih bite or " up- ituate at no^n| of — Wk jA ss. aineci uy — in'tlie or, 1 — - ■ 4 ■'J of your year of pecified honses due* to ao^due battels, ftsnuiatt; um smmtit 289 I fhaU* after the expiration of five days from the date hereof, cauie the said goods and chattels to be appraised and sold, ac- cording to the statute in that' case made and provided. Given under my hand, the day and year first above witten. r A. D. Witness, that a copy hereof was this day delivered to the said A. T. (or left at the dwelling-house of the said A. T.) A.W. Appraisers* Oath. Tea, and each of you, shall well and truly appraise the goods and chattels mentioned in this inventory, according to the best of your understanding — So help you God. Form of the Appraisement. The appraisement may be in the form of the inventory, speci-* lying the particulars, and their respective valuations ; and then add at the end^ Appraised by us, this — .— day of in the year . b' P* s ^'*'®''" Appraisers. Conjoint to be exhibited in writing, before two Justices, in the case of Ooods clandestinely removed, on the 11 O, 2. e. 19. (BuRNi) Home District, > Be it remembered, that this .^m^m-. day of . i -i to wit. i A.J. of— .complaineth that A. O. hath fraudulently and clandestinely removed and conveyed away, cer- tain goods and chattels of not exceeding the value of j£50, from — i— i at .— i— to prevent ..— -. from distraining the said goods and chattels, for arrears of rent due to the said ._i. for the said — ; and that B. O. of yeoman, and C. O. of — i— yeoman, wilfully and knowingly aided and assisted the said A* O. in so fraudulently and clandestinely removing and convey- ing away the said goods and chattels, and in concealing the same. A. J. Exhibited at the day of before us justices of the peace residing near not being interested in . Swnmons thereupon, (Bunif.) Home District.— To the Constable of . Whereas complaint in writing hath been this _.i... day of exhiWle4 at ...— before us justices of the peace for the IT II 290 E»n9iot)v unti Zttmvit H J' said districti residing near — not being interested in ii by A. J. of gentleman, setting forth that A. O* "^ yeo- man, liatli fraudulently and clandestinely removed and conveyed away certain goods and chattels of not exceeding the value of ^50 from to prevent —— from distraining the said goods and chattels, for arrears of rent due to the said . for the said — — and that B. O. of yeoman, and C. O. of-— yeoman, wilfully and knowingly aided and assisted the said ■■ in so fraudulently and clandestinely removing and conveying away the said goods and chattels, and in concealing the same : Tjt^^se are therefore to command you, and each and every ofyou, forth- with, to summon the said A. O., B« O. and C. O. to appear before .us at — — on the — — day of at the hour of in,|he forenoon of the same day, to answer the matter of the said com- plaint. Given under our hands and seals, at ■ the i day of . Tht Conviction^ -•'•♦fl'-vifi; i^ift |« .i<}-i,i Should be in the form required by the 2 W, 4. c. 4.-<*See ante title "Conviction," p. 138. Warrant of Distress^ in case the offenders, having neiieet refuse or neglect to pay^ pursuant to the preceding order, 11 O, 2. c, 19. 27 G. 2. c. 20. (Burn.) \ Home District. — To the Constable of Whereas A. O. of yeoman, B. O. of , yeoman^^nd C. O. of — — yeoman, were, by an order dated the — — day of under the hands and seals of us and —— justice! of the peace of residing near not being interested in T—r—, ordered to pay the sum of to or to his bailiff, servant or agent, on or before the — — day of being double.. the value of certain goods and chattels of the said ——vi^hicb. the said A. O. was before us duly convicted of having fraudulently and clandestinely removed and conveyed away from i to pre- vent the said from distraining the said goods and chatti^Si for arrears of rent due to the said for the said , and which the said B. O. and C. O. were also duly convicted before us of having wilfully and knowingly aided and assisted the 'taid A. O. in so fraudulently and clandestinely removing and convey- ing away, and in concealing the same: And whereas the said A. O., B. O., and C. O. having notice of our said order, have refused or neglected to pay, and have not paid the said sun^ of pursuant thereunto; and the same hath beeft fully proved before us : These are therefore to command you, and each and iUintrlotty ann ^tnnnt 291 ing 9way lu, fortb- ar before — in , |he aid cohi- — day »»• ^ ;. See mte refuse or 2. e. 19. n9n^9Dd - day of isticeg of inr-r— , • servant iible. the hicb,the duleatly . to pre- chattels, — . and i before the iaid convey- be said r» have SUB^ of proved ich and every of you, to levy the said sum of by distress and sale of the goods and chattels of the said A. O., B. O. and C. O. ; and we do hereby order and direct the goods and chattels so to be distrained, to be sold and disposed of within cl tys, unless the said sum of for which such distress shall b<> inade, to gether with the reasonable charges of taking and keeping such distress, shall be sooner paid : And you are also hereby com^ manded to certify to us what you shall do by virtue of this our warrant. Given under our hands and seals, at the day of Tke CotuiabWs Return thereupon^ of the want of Distress. (Burn.) Home District,^!, A. C. constable of , do hereby certify to wit. and justices of the peace for the said district, ihat 1 have made diligent search for, but do not know of, nor can find any goods and chattels of and and — or of any of them, by distress and sale whereof I may levy the sum of pursuant to their warrant for that purpose, dated the — day of , ^ Given under my hand, this day of . ^,ii^m%Commitment thereupon to the House of Correction, (Burn) Home District, > To the Constable of—— and also to the keeper to wit. 3 of the house of correction at —— Whereas — — and — ^ and were, by an order dated the day of under the hands and seals of us jus- — not being . to -__ or tices of the peace of the said district, residing near interested in — ^ ordered to pay the sum of — to his bailifi*, servant or agent, on or before the — day of — — being double the value of certain goods and chattels of the said ■ " I. which the said was before us duly convicted, of having fratidulently and clandestinely removed and conveyeJ away from ■I I ■ to prevent the said ■-■■■■ from distraining the said .goods and chattels, for arrears of rent due to the said for the said and which the said and were also duly convicted before us, of-baving wilfully and knowingly aided and assisted the said — — in 80 fraudulently and clandestinely removing and conveying away, and in concealing the same ; and whereas the said — — • and — — and ■' having notice of our said order, have refused or neglected to pay, and have not yet paid the said sum of pur- suant thereunto, and the same hath been duly proved before us ; and whereas it appears to us, by the return of—— constable of ——dated the— — day of that he hath made diligent search for, but doth not know of, nor can find any goods and chattels of 292 iuw^iar^. nii^ c;eiiiiiii« ^ the said ■ and and — or any of them, by dUtmi and sale whereof the said sum of may be levied pursuant to our^ warrant duly made and issued for levying the said turn of by distress and sale of the goods and chattels of the said -.—. and — . : These are therefore to command you, the said constable of be. and each and every of you, to apprehend the said -.«-^ and and , and convey them to the said house of coiv rection at — aforesaid, and deliver them to the said keeper of the said house of correction ; and these are also to command yon, the said keeper of the said house of correction, to receive them the said and and into the said house of correction, and there keep them to hard labour, without bail or mainprixe, for the space of six months, unless the said sum of—, so ordered to be paid as aforesaid, shall be sooner satisfied* Given under our bands and seals, at --t— the .^-. day of * ., {,. ,, iirr; 'f(r Form of a complaint upon oath to be made before a Juttiee tn e0$e of a dwelling house where goods and chattels are fraudulently, and cUm' dettinely removed^ and conveyed away and secured^ so as to prevent them from being taken and seized as a distress for r«nf.— (Burn.) Home District, > Be it remembered that this — — day of—— A. J. ''^ to wit. 3 of—., yeoman, complaiheth and imiketb oath that certain goods and chattels of A. O. of yeoman, have been frudulently and clandestinely conveyed and carried away from— — by the said A. O. his servant or servants, agent or agents, or other person or persons, aiding or assisting them to pr^v^at -— from distrriining the said goods and chattels for arrears of rent diie to the said for the said — , and that the said goods and chattels are put, placed or kept, in the house, barn, stable, out-bouie, y^rd, close, or other place, of at locked up, fastened, or To the Constable ■ i - - : 'm \ Whereas A. J. of i yeoman, hath tfai8>*4— day of— exhibited his complaint, and made oath before justices of the peace for the said district, that certain goods and chattels of A. O. of— yeoman, have been traudulently and c)an- mmvmfmtm^mi 293 rcs&and t to our -ii— mna cuntable lid «f cor- er of the ^ou^ tlie I the said ion, and e, for the 'ed to be UK bands case of a md dan' prevent Burn.) — A.J. etb oath Ave been rqm->— or other ~- from I dne to chattels e, y^rd, HTOtber- els from ind that oth sus- lOMse of W.) ?.'n 118 < >ds and idc)ttn- deitioel;' conveyed and carried away tVom by the said A. O. bU serv^cii or servants, agent or agents, or other person or persons, aiding or assisting therein, to prevent — — from distraining thie laid gfoods and chattels for arrears of rent due to the said for the said — — ; and that the said goods and chattels are put, placed or kept, in tlie boose, barn, stable, out>house, yard, close, or other place of ——.at — - locked up, fastened, or otherwise secured, so as to prevent ^ said goods and chattels from being taken and Mud as a distress for arrears of rent ; and that the said A. J. hath i reaionable ground to suspect, and doth suspect, that the said gpodt and chattels are in the dwelling house of at . These are therefore to command you, and each and every ofyou, to aid and assist >— p, his steward, bailiff, receiver, or other person or persons impowered to take and seize, as a distress for rent, the said goods and chattels, in the day time to break open and enter into the said dwelling-house, barn, stable, out- house, yard, close, or other place of the said at — — and to take and seize the said goods aiid chattels, for the said arrears of rent, according to I^jWt Given m^K ^ ^^^^ ^^^ ^^al, at • the - — day of -r- — . Retognixance on appeal against the preceding Convietion^farfraudu- j j .Uimy assisting to convey Goods off the premises^ to avoid a Distress^ :under the 11 G, 2. c 19. § 5 4> 0. (Toone.) Home District, > Be it remembered, that on the <— — day of '■ ' to wit. S in the — — year of the reign of our sovereign lord William the fourth, by the grace of God, of the united king- dom of Great Britain and Ireland, King, defender of the faith, A. B. of in the said district, yeoman ; C. D. of ——in the same district, yeoman ; and £. F. of — - in the same district, yeoman, personally came before us, J. C. and S. P. esquires, two of his Majesty's justices of the peace in and for the said distri«.t, and acknowledged themselves to owe to our said lord the king, the sum of—— [the amount mtut be douhk the sum ordered to be paid by the conviction. 11 Cr. 2. r. 19.] to be levied of their goods and chattels, lands and tenements* to the use of our said lord the king, his heirs and successors, if the said A. B. shall make default in the condition following : — The condition of this recognizance is such, that whereas the said A. B. is this day duly convicted before us, the above named justices of the peace, of having wilfully and knowingly aided and anisted B. O. of-— ~ within the townslnp of in the district aforesaid, in the night of-— the day of last, in frau- dulently and clandestinely removing and conveying away part of the goods and chattels of the said B. O. fiom Idcscribe the place, ^ 294 fUintflorQ nnn w^tnnnt hornet tencmentt fye. and where iituate, fyc."] not eicetding the value of fifty pound$t and in concealin< ihe tame so at to prevent £. F. of in the said district, esquire, from taking and leiiiiig the same for arrears of rent due to the said E. F. fVom the said B. O. for a certain tenement, {or a$ the cote may 6e] situate at aforesaid ; for which offence the said A. B. has been adjudged to forfeit to the said E. F. the sum of — ~ being double the value, of the said goods by ilie said A. B. so carried off and concealed : Now if the said A. B. shall persojnally appear at the next general quarter sessions of the peace to be held at — — in and for the said- district, and commence and prosecute an appeal against Ihe said conviction, and pay such costs as shall be then and there awmrded by the said court, then this recognizance to be void. *. Acknowledged before us. •.'•■ i,u!i4* Information and Complaint^ under the 11 Geo» 2. c. 19. of Tenant having deserted the Premises. (Toonb.) til /M Home District, ) The information and complaint of A. B. of - to wit. 5 '"■ ^he said district, taken this day of — — 18 — , who sailh, that he the said A. B. did, in and by a certain indenture bearing date the day of in the vear of our Lord 18 — , (or by written or verbal agreement, as the case may be) demise unto C. D. of in the district aforesaid, a cer- tain messuage, ^or other premises^ as the case may be"] situate and being at in the district aforesaid, at a rack-rent (or three' fourths of the yearly value) — that is to say, at the yearly rent of — — payable quarterly, (if so) on the ' day of Scc; and the said A. B. further complaineth, that on the ~— day of' ■ now last past, there was in arrear and due unto him the said A. B. from the said C. D. the tenant of the said demised premises, one whole year's rent thereof, and that he the said G. D. hath deserted the said demised premises, and left the same uncultivated and un- occupied, so as r.o sufficient distress can be had to countervail the said arrears of rent, and that the said arrears of rent have been duly demanded, according to law; wherefore the said A. B. doth request J. C and S. R. csqrs. two of his Majesty's justices of the peace for the said district, to go and view the said demised premi- ses, and affix on the most notorious part thereof, a notice, in writ- ing, what day they will return and take a second view thereof, and that a remedy may be given to the said A. B. according to the form of the statute in that case made and provided. Taken before us the said justices, the — ^ day of — 18 — . « *: Be it remembered, that on the day '^^ , to wit. 3 ill (he •—— . year of the reign of our sovereign lord William the fourth, at in the said district, E. A. of complaineth unto us •— — esquires, two of his Majesty's justices of our said lord the King, assigned to keep the peace within the said district, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said^district committed. That he the said E. A. did demise, at rack rent, unto A. S. of yeo- man, the messuage and tenement, lying and being at ■ afore- said ;' and that on the said daj' of in the year aforesaid, there was in urrear and due unto him the said E. A. from him the said A. S. tenant of the said demised premises, one whole year's rent thereof, and that he the said A. S. had deserted the said pre- mises, and left the same uncultivated and unoccupied, so as no suf- ficient distress could be had to countervail the said arrears of rent, » 1 t! <>ll 296 Wtttttnui* whereupon the laid E. A. then and there, to wit, on the Mid •«— - day of —' in the vear aforeiaid, at — — aforeaaid, in the diHrict aforesaid, requested of us so as aforesaid, being juftices, to him in this behalf, that a due remedy should be provided according to the form of the statute in that case made, which complaint and request |»y us the aforesaid justices being heard, we the said —— Justices aforesaid, (having no interest in the said demised premises on the said ' day of — in the year aforeiaid, at -— * aforesaid, K did personally go and view the said demised premises, and then y and there upon our own proper view, did find the said complaint f, to be true, and did then and there affix on the most notoriont part yrof the said premises, to wit, upon the out door of the dwelling- V house aforesaid, a notice in writing, under our hands and aeais, V, that we, the said justices, on the — — day of the same — «- month ,i of in the year aforesaid, would return to take a second view thereof, upon which said — —— day of in the year aforesaid, we, the said justlce8,*do now return and take a second view of the premises aforesaid, and there upon our own proper view, do find, that he the said A. S. doth not appear, nor any person on his be- half doth appear, and pay the said rent in arrear, and that there is no sufficient distress upon the premises aforesaid, nor upon any part thereof, to countervail the said arrears of rent ; therefore we the saidjustices, at ■ aforesaid, on the ■ day of in the 4o y^^'^ aforesaid, do put the said E. A. into the possession of the said demised premises, according to the form of the statute aforesaid. In witness whereof, we the said justices, unto this record do set 1} i) 10 rii uv bll , ^ our seals, at "^ -day of ni V i'U . aforesaid, in the district aforesaid, on the said in the year of our Lord 18—. •^-i-'.M. •. >v LARCENY. . .'"u,. ■ Larceny is the felonious and fraudulent taking and carrying away by any person, of the mere personal goods and chattels of another. 1 Haw, 89. There are two degrees of larceny — 1. Grand /arceny— which signifies the stealing of any goods or chattels above the value of twenty shillinga^ sterling. Ordinaiice of ^whec, 29 Cr. 3. c. 3. ; and 2. Petit larceny — which includes those cases where the pro- perty stolen is under the value of 20s. lb. In petit larceny, there can be no accessories. V' The punishment for grand larceny, unaccompanied by any acts of violence is, banishment fur life, or years, or imprisonment and confinement, with or without hard labour, in the common gaol, or in the penitentiary at Kingston ; and for petit larceny ^ Ik SAtCttltt 297 eiaid— - ilheditlrict «i to him in rding to the and r«qu€it — ^iuiticef iiMiM on the - aroreiaid, I, and then d complaint torions part i« dwellmg- li and aealf , — « month lecond view ir aforetaid, view of the ew, do find, a on hii be- that there is \r upon any herefore we ' in the n of the said e aforesaid. :ord do set on the said tun d carrying chattels of Jiy—- which he value of ?. 3. c. 3. ; ^re the pro- ccny, there ly any acts prifionment e common tit larceny, whipping, or imprisonment ; or, by stat. 4 O. 1. c. 11. ^ 1* tranS' povtation (or banishment) for seven years. t. $? Of Orantl Larceny, larceny who includes a trespass, a pa ^ is noi guilty of a trespass in taking the goods, cannot be guilty c of felony, at common taw^ in carrying them away. 1 Haw* c» 33. i)'J$i4y> >^hus, where goods are delivered by the owner to another, i, upQn a trust, or on account of ilie owner, tiie possessor cannot ),.be guilty of felony in converting them to his own use, unless by .. spme distinct act of taking — as, by severing part of the goods from ^/ the rest, with intent to convert them to his own use ; he thereby ^{.determines the privity of the bailment, and the speciol property y,, thereby conferred upon him. Ibid, 1, Hah, 504, But a bare [. cbarffe of goods, such as that which a servant has over the goods '.J^: of bis master; or a mere 'liberty to make use of a thing for a {. particular purpose — such as a traveller at an inn has with respect l^, to the furniture — does not prevent the party from being guilty of g{ felony, if he take or convert the goods to his own use ; in both y, cases the law presumes the property to be still in the possession q\ of its owner. I Hale, 50Q, ■',\; ;• tii» •), will be ntleman his own Its, this took up .Lambt u found embez- i of the ? bank and the Cart' where ^er the of pro- he had o steal aim of y wiih [)f pro- 'isoncr at, for which the law has provided an especial reiitedy ; (see ante title * Cheat\) and so, where a party obtained the delivery of a horse which was exhibited in a fair for sale, by contracting to buy it, and to pay for it immediately, but when it was delivered to him he ro^ off and never returned, it was held that this was uo felony, but a complete sale and delivery upon credit, in which the owner had parted with the property as well as the possession. R. v, Har- vey ^ 1 Leach, 467. ' But where a man came to Smithfield market to sell a horse, and a jockey coming there to buy a horse, the owner delivered his horse to the jockey to try his paces, in the market-place, and the jockey rode off with the horse, this was ad-' judged to be felony, inasmuch as the possession only, and not the property of the owner in the horse, had been parted with. Kel, 82. Pretence of exchange. — Where a prisoner offered to accommo- date the prosecutor with gold for bank notes, upon which the pro- secutor put down a number of notes, which the prisoner took up, and went away, promising to return immediately with the gold, but never came back ; this was held to be larceny, if the jury believed that the prisoner intended to run away with the notes, and not to return with the gold. R. v. Oliver, Cit. 4. Taunt. 274. Delivery by a servant. — Where a prisoner ordered a pair of candlesticks from a silversmith, to be sent to his lodgings, whither they were sent, with a bill, by a servant, who was directed to bring back the money, but who was sent back by the prisoner under some pretence, when the latter ran away with the ciandlesticks ; this was iield to be felony, no credit having been given by the owner, and the servant having no legal power to part with the goods till paid for them. Bailment. — Where the possession of the goods is acquired, un- der a bailment of them from the owner, for a special purpose, and the bailee tortiously converts them to his own use, before the bail- ment is determined, the offence will not amount to larceny ; as, where a tailor has cloth delivered to him, to make clothes of; or, where plate is delivered to a goldsmith, to work or to weigh ; or a friend is entrusted with property to keep for the owners use. 2 East. P. C. 693. When the possession of the goods, however, is fraudulently obtained in the first instance, or where the contract of bailment is subsequently determined, or broken by some wrongful act of the bailee, then, a wrongful conversion of the goods will amount to larceny. ^vr > : . r;i And first, — Respecting Possession obtained fraudulently by the Bailee. The prisoner hired a horse of the prosecutor, on pretence of taking a ride into the country, and returning in the evening, but in truth with intent to stcul it, and cviiiencing such felonious intent 300 ftuvcens* I :i / ' 4 \ 1 II ■ I by immediately selliog th6 horse after possession of it was delivered to him ; this was held to be lelony. JR. v. Pear* 2 Leach, 212. 2 East, P» C. 689. So, where a prisoner hired a chaise, at £«• a day, saying he should want it for three weeks or a month, as he was going a tour round the north, and no tidings were obtained of him till twelve months afterwards, but no account was ever gi^n of the chaise up to that moment, the presumption being against the prisoner, the jury found him guilty. R, v. Semple, I Leachr 420. 2 East, P. C. 691. In all these cases, the question of the real intention of the prisoner at the time of the hiring, is for the «m Honoe Oiitricty ) To the constable of -— -— aad all other pea^qct, to wit. 5 officers whom it may concern. Forasmuch as A. B. of labourer, hath this day been chart ged before me J. P., one of his Majesty's justices of the peace for the said home district, on the oath of a credible witness, for thai he, the said A. B., on the •— — • day of . in the year of our Lord 183 — , at — ..^ in the said district, did feloniously steal, take and carry away, twenty .pieces of gold coin, called sove- reigns, the property of one B. C. : These are therefore to con^^' mand you, in his Majesty's name, forthwith to apprehend an^ bring before me, or some other of his Majesty's justices ojf the peace in and for the said district, the body of the said A. B. to answer unto the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, the ^„.„^^^ day of mi in the year of our Lord 183-. J. P. L. S* For the forms of Commitment, see title *' Commitment," " Jin* tices of the Peace," &c. • « «*M4' LAW. ;»Pv ifijuipij t*'i** dm^hi'i^hw By the 32 Gr 3. u 1. <^ 3. It is enacted, that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same. ^ 6. But that nothing in this act shall introduce any of the laws of England respecting the maintenance of the poor, or respecting bankrupts. ?m^ >* mtu ■^- LIBEL. '.>^-i A Libel has been usually defined to be any scandal vyriUen or printed^ or otherwise expressed by symbols. Lamb. 64. ; and taken in its largest sense, signifies any writings or printed paper, picture, or the like, of an immoral or illegal tendency ; and in a more limited sense, a malicious defamation of any person, either living or dead, made public either by printing, writing, signs or pictures, in order to provoke to wrath, or expose him to public hatred, contempt and ridicule. 4 Bl. Com, 105. But words spoken, ho'vever malicious and untrue, and actionable at law, will not amount to libel. 1. Of Libels which affect the Public in general. ' "'''1 All publications blaspheming the Almighty, or turning the christian religion into ridicule ; all publications tending to vitiate : ' ft afntt^A^ 305 rt»rt»j<1f.1i >MW and corrupt the minds and morals of the people ; any attempt made to degrade and vilify the constitution, and tending to circu- late discontent among the members of the community, and stir ap insurrection; any writing or printed matter, tending to vilify or disgrace the King : to lessen him in the esteem of his subjects : weaken the government: or raise jealousies between him and his people, are, more or less, of a libellous tendency. So, any publication reflecting in an improper manner upon either houses of parliament, is a libel at common law. To hold up the King's government to contempt and hatred, is also punishable as a libel. Ji, 'v.TucAtn, HoWs Rep. 424. And any publication tendtng"^to degrade and defame the Sovereign or ruler of a foreign slate, upon terms of amity with this country, is a libel at comnlon Idw.' .imUWMU'f 2. Of Libels on Private Individuals. i !<»• Mii^flO^ . ■ -.' i ' ' .'*>i.\^) ■■■< Not only charges of a flagrant nature are libellous, but also those which place an individual In an ignominious light, and bring; him into hatred, contempt or ridicule, on the ground that all such libels have a direct tendency to a breach of the peace. ABI. Com., 150. General imputations, also, on a body of men, though no individuals are pointed out, are indictable. 2 Barnard, 138. 166. And a malicious defamation of a deceased person, if published with intent to vilify his memory and injure his posterity, is ini dictable as a libel. R. v. Topham. 4 T. R. 126. Any scandal likewise expressed by indirect means, is a libel, as well as that which is expressed in direct terms: thus, to fix up a gallows against a person's door, conveys a meaning as obvious to com« mon sense, as that which is expressed by writing or printing.-r- 1 Haw. c. 73. <^ 2. 3. 4. So a defamatory writing expressed by the Initials only of a persons name, is as complete a libel, as if the whole name had been expressed. 1 Haw. c. 73. <^ 5. • 3. Of the Justification of a Libel. . ,,f<* In a criminal prosecution liie truth of a libel cannot be pleaded in justification, although it may be in a civil action ; the ground of the criminal proceeding being the tendency of a libel to a breach of the peace. 1 Haw. c, 73. «^ 6. neither is it any justification that the libel was copied from some other publication ; nor al- though the name of the author be given up ; for the printer and publisher of a libel are equally chargeable with the offence, as the original author. Deacon*s Cr. Law. To the above general rules, there are some exceptions in law, in which a written or printed do- ctiment is held to be no libel. 1. Where it is a statement made 306 ttfnrMHV* in the regular and proper course of a parliainentarjr» jii4iciil or other lawful proceeding. 2. Where the writing U a confidential communication. 3. Where it is a fair criticism, on any literary, production. 4. Sot no matters exhibited in articles of tibe peace, or in'any other proceeding in a regular course of Justice, will amount to a libel ; neither is a presentment of u gram jury to be considered as a libel. 1 Haw, c. 73. ^ 8. '.- >^ 4. Of the Publication. u ^ili jb . No one is punishable fo.- a libel unless he actually public U to the world. Reading a libel in the presence of another, without any previous knowledge of its libellous qualities, does not amounl to publication ; but if a man, knowingly^ lends or shows it to an- other, or repeats it in the presence of others, this ia a publication. 1 Haw, c, 73. : and not only he who publishes the lib', 1 himself, but also he who procures another to publish it, is guilty of the publication. 1 Haw, c, 73. ^ 10. So, the sale of a book in « liookseller^s shop, by his shopman, is prima facte evidence of pub- lication by the master. I Barnard, 306. And the proprietor of a newspaper is, in like manner, criminally answerable for the acts of his servants in the publication of a libel, although the publica- tion may have been without the knowledge of the proprietor. R, V, Walker, 3 Esp, 21. r.^i:«ihior> jfft fhW'HiV/ hi '« ■ ^ ^r.i o -1 . ^•"^'•^ -rfim , 5. Of the Fumshment, u..,^'^ » The punishment for libel is fine or imprisonment, or both, fn matters of libel, justices of the peace have an original jurisdktion ; and a party charged with the publication of a libel, may be held to bail by a justice of the peace, to appear at the sessions or assitei. Butt, V, Conant, 1 Brod, h B, 548. Information against a Party for a Libel. Home District, > The information and complaint of A. B. of-— — to wit. > in the home district, — — taken on oath, this — i— day of 18 — , before J. P. esq. one of his Majesty's justi- ces of the peace for the said district. The said informant saitb, that in a certain printed book (or newspaper) printed and pitblished at — — in the said district, by one G. M. and called \1tere set out the name or title of the book or paper'\ the following libellous alle- gation is contained, of and concerning this informant, [here insert the libellous passage, literatim] and the said informant further saith, that he hath been informed, and verily believes the said book, &c. containing the aforesaid libellous matter, was printed and published by the taid G. ^I. with a view to injure, vilify and defame, this 2.ar9^i9 l&Afi. 307 informant, and (o bring him into public hatred, ridicule and con- teniflt $ wherefore be prayeth a warrant against the said G. M. and that he may be further dealt with according to law. • Sworn before roe. * Recognizance to appear at the Sessions. To be taken in the usual form! The condition of (his recogni- zance is such, that if the said G. M. shall and do personally appear at the next general quarter sessions of the peace, [or assizes and general gaol delivery] to be liolden in and for the said district, and then and there answer to a bill of indictment, to be prefeared Rgaintt him the said G. M. for a libel on one A. B. of in the said district ~—, and not depart the court without leave, then this recognizance to be void. ^;^<., Aduiowledged before, S:c. ifii'o viMu^ Indictment for a Libel. (AncHBOLD.) Home District, ) The jurors of our lord the king upon their oath to wit. 3 present, that J. S. late of the township of in the county o f in the home district, schoolmaster, contriving, and unlawfully, lyickedly, and maliciously, intending to hurt, injure, vilify and pr^udice, one J. N. and to deprive him of his good name, fame^ credit and reputation, and to bring him into great contempt, scandal, infamy and disgrace, on the —— — day of ' in the year of the reign of our sovereign lord William the fourth, with force and arms, at the township aforesaid, in the dis- trict and province aforesaid, unlawfully, wickedly and maliciously, did write and publi&h, and cause and*procure to be written and published, a certain false, scandalous, and malicious libel, in the form of a letter, directed to the said J. N. [or if the publication were in any other manner^ omit the loords ' in, the fornix* ^c] con- taining divers false, scandalous, and malicious matters and things, of and concerning the said J. N. an^ of and concerning &c. [here insert such of the subjects of the libel as it may be necessary to refer to by the inuendos^ insetting out the libel] accord- ^ to the tenor and effect following, that is to say, [here set out the libtU together with such inuendos as may bo necessary to render it intelligible"] to the great damage, scandal and disgrace, of the said J. N. to the evil example of all others in the like case offending, and against the peace of our lord the king, his crown and dignity. ,4m^H.- LORD'S DAY. By I EL c. .2* <§ 14. 24. All persons, not having reasonable excuse, shall resort to their parish church or chapel [or to some congrega- tion of religious worship allowed by the toleration act,] on every m& W^oat^^M^WMu* r w ' i^unday ; on pnin of li. to the poor for every offence. 3 J, e» 4. <^ 27. 28. to be levied by the churchwardens by dUtresSi by war- rant of one juitice. liy the 1 J. c. 22. No shoemaker ■hnll shew for sale any shoes, boots, &£c. on the Sunday, on pain of 3s. 4d. a pair, and the value thereof; to be recovered at the assizes or sessions, one third to the King, one third to the informer, and one third to the town. ^ 28. 46. 50. And by the 3 C 1. No carrier with any horse or horses ; nur waggonman with any waggon or waggons ; nor carman with siny cart or carts ; nor wainman with any wain or wains ; nor droiera with any cattle, shall, by themselves or any other, travel on the Lord's day, on pain of 20s. Or if any butcher by hfntself, or any other for him, with his privity and consent, shall kill or sell any victual on the Lord's day, he shall forfeit 6s. 8d. ; co'nVictl6n to be within six months, before one justice ; on view, confelsion, or oath of two witnesses ; to be levied by the constable or church- warden by distress ; or recovered in any court of record in any city or town corporate, before the Justices in sessions; to 6e applied to the use of the poor, except that the justice may reward the in- former with part of the forfeiture, not exceeding one third. And by the 29 C.2. c..7. It is further enacted, that no drover, horse courser, Wiiggoner, butcher, higgler, or any of their servants, shall travel, or come to his inn or lodging on the Lord's da}', on pain of 20s. and in general, that no tradesman, artificer, workman, la- bourer, or other person, shall do or exercise any worldly labour, business or work, of their ordinary callings on the Lord's day, (^kcept works of necessity and charity) and except dressing of meat in families, and dressing and selling of ment in inns tu cooks shops, or victualling houses, for such as cannot otherwise be pro- vided, on pain of 5s, : and also, that no person shall pnblicly cry, shew forth, or expose to sale, any wares, merchandizes, fruit, herbs, goods or chattels, whatsoever, on the Lord's day, (except crying and selling of milk, before nine in the morning and after four in the afternoon) on pain of forfeiting the same : and also, that no person shall use, employ, or travel, on the Lord's day, with any boat, wherry, lighter or barge, (unless allowed by a justice of the peace on extraordinary occasions) o^: pain of 59. Conviction to be within ten days, before one justice, on view, confession, or oath of one witness; and tlie justice is empowered to give warrant to the constables or church-wardens, to seize the goods cried, shewed forth, or put to sale, and to sell the same, and to levy the other forfeitures by distress ; to the use of the poor, and one-third to the informer ; and for want of distress, the offender to be set publicly in the stocks for two hours. By the 2 G. 3. c. 15. Fish carriages shall be allowed to pass on Sundays, whether laden or returning empty. ./*)9 ' By the 20 C. 2. c. 7. ^ 6. The service of any writ, prorr «, wiirraint, order, judgment or decree, on the Lord's da^f (excepi a cases of treason, felony, or breach of the peace) shall be void. Information for travelling on the LordU Day ; — Penalty 20(. 29 C.2 . c. 7. § 2. (AncuDOLD.) Home District, ) Be it remembered, that on the ■ day of ' to wit. 5 >n the year of our Lord — — at ■ ■ in the said district, A. B. of in the said district, cometh before me, J. P* esquire, one of his Majesty's justices of the peace for the said district, and informeth me, that C. D. of— in the said district, on the Lord's day, and within ten days now last past, to wit, on the ' day of- now last past, at — — in the said district, being then and there a drover, (drovevt horse courser^ wagg other misdemeanors, in the said district committed, for that he the said A. O. on the — day of — — in the — year of the reign of — being the Lord's day, commonly called Sunday, with his horses, to wit, two horses into and through the said township of — — did travel, contrary to the statutes in that case made and provided, whereby he hath forfeited the sum of 20«. of lawful money of England : These are therefore to command you, forthwith to levy the said sum of 20«. by distraining the goods and chattels q( him the said A. O. and if within the space of five days next aAer such distress, by you taken, the said sum shall not be paid« togethtr with the reasonable charges of taking and keeping the same, that then you do sell the said goods and chattels so by you dls;raioed, and out of the money arising by such sale, that you do pay the (um of 65. 6d. part of the said sum of 20«. to A. J. of -—«- yeo- man, who informed me of the said offence, and that you see the remaining sum of 139. 4d. employed according to law, returning to him the said A. O. the overplus, upon demand, the reasonable charges of taking, keeping and selling the said distress, being first deducted ; and you are to certify to roe, with the return of this pre- cept, what you shall have done in the execution thereof. Herein fail you not. Given under my hand and seal, at ..— .. the 1 davof. 183—. '•^tri MAIMIIVG. By the ancient law of England, he that maimed any man, where- by he lost any part of his body, was sentenced to lose the like part, membrum pro membro; which still is, or was lately, the law in Sweden. But this lex talionis afterwards went out of use, part- ly because the law of retaliation is, at best, an inauequate rule of punishment, and partly because (upon a repetition of the ofience) the punishment could not be repeated. 4 Bl. Com, 206. Bat subsequent statutes have provided otherwise for this ofience. By the 5 H, 4. c. 5. (which was passed to remedy an atrocious crime then prevalent, of beating, wounding, or robbing s man, and then cutting out his tongue^ or putting out his eyeSt to prevent him from being an evidence agr.inst the robber) this ofience wa^ declared to be felony. The ?7 H. 8. c. 6. also directed, that if a man maliciously cut ofi* the ear of any of the King's subjects, he should not only forfeit treble damages to the party grieved, but also JCIO fine to the King. And by the 22 Sf 23 Car. 2. c. 1. called the Coventry act, the most severe and efiectual of alt these JMaCntctuinw, tct. • s manifest) direcring the party complained of to shew cause why a writ of nuindamw should not issue ; and if he shews no sufficient cause* the writ itself is issued at first in the alternative — either to do thus, or signify some reason to the contrary : to which a return or answer must be made at a certain day ; and if the inferior judge, or other person to whom the writ is directed, returns or signifies an in- sufficient reason, then there issues, in the second place, ^pertnvptory mandamus^ to do the thing absolutely, to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge, or other person, makes no return, or fails in his respect and obedience, he is punishable for his contempt, by attachment. But if at the first he returns a sufficient cause, although it should be false in fact, the court of king's bench will not try the troth of the fact upon affidavits, but will, for the present, believe him, and proceed no further on the mandamus. But then, the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant, to do his duty. 3 Bh Com. 111. A mandamus to the quarter sessions will be granted, to compel them to hear and decide an appeal which they refuse to hear, on the ground of a mistaken notion of law, or an unreasonable rule as to their own practice. R. v. Wiltshire^ 10 East, 404* ..;,^;^ '■»* ,,, ,, Manslaughter. — See anU title ** Homicide," p. 223. . , By the 33 G. 3. c. 5. certain marriages previously contracted, are declared to be valid. <^ 3. And until there shall be five ministers or parsons of the church of England, doing duty in their parishes or places of residence in any one district, parties desirous of in- termarrying, and neither living within eighteen miles of any parson or minister, may apply to a neighbouring justice, who may cause to be affixed, in some public place within each of the townships or parishes wherein the parties reside, the following notice, (fee one shilling) : — '' Whereas A. B. of and C. D. of are desirous of "intermarrying with each other; and there being no parson or '< minister of the church of England living within eighteen miles «< of them, or either of them, all persons who know any just im- <* pediment why they should not be joined in matrimony, are to •« give notice iherfof to E. F. esquire, of one of his Majes- " ty's justices of the peace for the — — district." jfiut*' JWnrfUqgtc 313 use wby a a sufficient -—either to a return or r judge, or lifies an in- peremptory ther return ;e and due ler person, tnce, he is at the first ilse in fact, e fact upon proceed no 1 may have >und to be the injury defendant, , to cdmpel lo hear, on onable rule 104* !> iiWia ?. 223.1.. iracted, are 'e ministers eir parishes roui of in- es of any istice, who ach of the fallowing desirous of > parson or hteen miles ny just im- >ny, are to his Majes- <( ! And if no valid objection shall have been made for three inter- vening Sundays, the magistrate may solemnize the marriage, according to the form of the church of £ngland, and give the parties the following certificate, (fee Is.) i— - " Whereas A. B. of i— and C. D. of . were desirous " of intermarrying with each other, and there being no parson *' or minister of the church of England living within eighteen ** miles of them, or either of them, they have applied to me for " that purpose : Now these are to certify, that in pursuance of ** the powers granted by an act of the legislature of this province, passed in the thirty-third year of his Majesty's reign, I, £. F. " one of his Majesty's justices of the peace, having caused the ** previous notice by the statute required to be given, have this day " married the said A. B. and C. D. together, and they are become " legally contracted to each other in marriage." wM- t<2iie;Mi« Which certificate shall be signed by the parties, and two or more persons present at the marriage. The clerk of the peace, upon application, is required tON,register the said certificate — (fee 2i.) ; and such register, or an attested copy — (fee 2«.) shall be sufficient evidence in courts of law. <^ 5. The power of justices to solemnize marriages shall determine so soon as there shall be five parsons or ministers resident in any one district; and any justice of the peace pretending to perform tlie ceremony afterwards, shall forfeit iC20. one moiety to the province, and the other to tlie informer. By the 2 G. 4. r. II. If any parson, minister or clergyman, legally authorised to solemnize marriage, shall knowingly or wil- fully solemnize marriage without publication of banns, unless license of marriage be first had and obtained from some person duly authorised to grant the same ; or if any justice of the peace shall knowingly solemnize marriage contrary to law ; or if any person not having authority by law to solemnize marriage shall marry any persons within the same, such offender shall be guilty of a misdemeanor. — Such oflence not to be cognizable at the quarter sessions ; and no prosecution to be commenced after two years. <^ 2. In all prosecutions under this act, the proof of legal authority shall lie upon the defendant. By 1 W. 4. c. 1. entitled *' an act to make valid certain mar- riages heretofore contracted, and to provide for the future solem- nization of marriage in this province," it is enacted, that it shall be lawful for any clergyman or minister of any church, society, congregation, or religious community of persons, professing to be members of the church of Scoilnnd, Lutherans, Presbyterians, Congregationalists, Baptists, Independents, Methodists, Menonists, Tunkers or Moravians, who shall he authorised in manner here- 314 SiStmviAU^u. ^ h I :i 1 r- 1 Hi .1 tnafter mentioned, to solemnize the ceremony of marriage within this province between any two persons, neither of whom is under any legal disqualification to contract matrimony. ^ 2. No person shall be deemed a clergyman or minister of such church, society, congregation, or religious community, who shall not have been regularly ordained, constituted or appointed, according to the rites and forms of such church, society, congregation or religious community; and unless he shall be a subject of his Majesty, and shall appear before the justices, in sessions of the district, and produce proof of his ordination, constitution or appointment, and shall then and there take the oath of allegiance ; and thereupon, if it shall appear to the majority of the justices then present that he has been regularly ordained, &c. they are hereby authorised and required to grant him a certificate, in the form following : — •* Be it remembered, that at the general quarter sessions of the " peace holden at — — in and for the district of . on the *< , ■ day of ^.— in the year of our Lord ■ before A. B* ** and others, esquires, justices of our sovereign lord the King as- ** signed to keep the peace in the said district, came C. D. of . ■ . " who professes to be a minister or clergyman of the church, society, " congregation or religious community, (as the case may be) it " appeared to a majority of the justices that he the said C. D. ** was duly ordained, constituted or appointed, (as the case may *' be) a minister or clergyman of the said church, society, congre- ** gation, or religious community. " G. H. Clerk of the Peace, ''** ' E. F. Chairman,'' For which certificate, the clerk of the peace shall be entitled to 55. ^ 5. No such minister shall at any time celebrate marriage unless banns of marriage be published with an audible voice in the church or chapel or place of worship, three several Sundays, in some intermediate part of the service, or before it began, or immediately after it ended, together with the number of times of publication ; or unless a marriage license shall have been obtained from the Governor. '^ 6. Every minister or clergyman, or justice of the peace, authorised by this act to celebrate marriage, shall, if required, give to the party a certificate; and also, once in every twelve months, return a certified list of all marriages by him solemnized, to the clerk of the peace, within that period, or since his last return, specifying the names of the parties married ; the witnesses ; and whether solemnized by license or banns ; and shall pay to the clerk of the peace the sum of 25. 6d, to record the same who shall record the same in the register or book required by law* to be kept by him, of marriages ; and such register, or a certified copy, shall be considered, in case of death, or absence of the witnesses, a sufficient evidence thereof; and any minister, clergy- ^utxim^^ 315 rriage wilbia liom is under 2. No person irch, society, >t liave been rding to the or religious lajesty, and district, and intment, and d thereupon, present that y authorised »Ilowing :— ssions of the — — — ou the [lefore A. B. he King as- D.of--^ rch, society, ( may be) it » said C. D. he case may ty, congre- -fltrmcm." entitled to te marriage >le voice in il Sundays, began, or of times of in obtained , or justice age, shall, ce in every !3 by him I, or since rried ; the ; and shall the same ed by law' a certified ce of the r, clergy- man, or justice of the peace, neglecting to make such return, shall forfeit £40, to be recovered )y action of debt in the court of king's bench, pne moiety to the informer and the other to the province. Marriage License* Sir John Colborne, K. C. B., Lieutenant Governor of the pro- vince of Upper Canada, &c. &c. &c. Whereas his Majesty has been graciously pleased, by letters patent, under the great seal of Great Britain, to authorise me to grant licenses for the solemnization of marriages : And whereas ■ are determined to enter into the holy banns of matrimony, and are desirous of having their marriage publicly solemnized ; in order that such their lionest desires may the more speedily have their due effect, and that they may he able to procure the same to be lawfully solemnized, without publication of banns, I do hereby, for good causes, give and grant this license of faculty, as well to them the said parties contracting, as to all or every parson or minister, duly ordained, and lawfully exercising his ministry with- in the said province of Upper Canada, to solemnize and perform the same : Provided always^ that by reason of any affinity, con- sanguinity, pre-contract, or any other lawful cause, there be no legal impediment in this behalf, otherwise, if any fraud shall ap- pear to have been committed, at the time of granting this license, either by false suggestions or concealment of the truth, that then this license shall be null and void, to all intents and purposes whatsoever. Given under my hand and office seal, at — — this ' day of ■ ' ■■ in the year of our Lord, one thousand eight hnndred and thirty ■ and of his Majesty's reign, the — — 'Mntm » ■;>ii F&rm of a certified list of Marriages^ to he returned to the Clerk of the Peace f pursuant to the 1 W. 4. c. 1. A list of all Marriages solemnized by me A. B. one of his Majesty*s Justices of the Peace for the Home District^ [or a Minister, Sfc ,^, stating the particular denomination, at ] commencing the day oj — — — , and ending the day of ——— Names of Ihe, parties, aiid their residence John Thomas, of E^amilton, in the Dis- trict of Gore, Gentle- man,— and, Mary Griflithe, ofthf VAx^j of Toronto, in the Home District. Township in which the ceremony is performed. At the City of Toronto, in the Township of Yorli. Date of Ceremony. 12th Aup;. l8S1.;By License. By Banns, License, or usual notice. Names of Witnesses presc:it. Charles Edwards, of Hamilton, Gore Dis- trict, Morchnni — and Richard Houlins, cf I he City of i'uroplo, Merchant. 316 aw^rrCe^ O^ontrn* IS I i I t : ■•"•'•'■' ^"■' MAHBIED WOMEN. "l;",^ By the 59 Q. 3. c. 3. Married women above the age of 2! years, with the knowledge and consent of, and by any deed or deeds jointly with their husbands, may alien and convey their real estate to such uses as to her and her husband shall seem meet. ^ 2. Pro- videdy that such married woman, if resident in Upper Canada, shall appear before a judge, or other person mentioned and de- scribed in the 43 G. 3. c. 5. (repealed by 1 W» 4. c. 2.) or unless such married woman, being a resident of Great Britain or Ireland, or an} Colony belonging to the crown of Great Britain, shall ap- pear bofore the mayor, or chief magistrate, of any city« borough or towi; corporate, in Great Britain or Ireland, or the chief justice, or any of the judges of the supreme court in any such Colony, and be examined by such officer touching her consent, and shall freely and voluntarily consent. ^ 3. Such mayor, or chief magistrate, &c. may thereupon cause a certificate to be endorsed on the deed, stating the day on which such examination was made, and signed by such mayor, &c. And by ^ 4. All such examinations and cer- tificate, &C. must be made within 12 months after the execution of the deed. % 5. And the seal of the city, borough or town corpo- rate, must be affixed. By the 2 G, 4. c. 14. It shall be lawful for any married woman, having such real estate, to appear before the quarter sessions in the district in which she may be resident, or in cases where the party resides out of the province, then before the G* Q. sessions of any district, withrn 12 months after the execution of the deed, to make such acknowledgment ; and the chairman may certify in like manner as by the court of king's bench, or any judge thereof. By the 1 W, 4. c, 3. Reciting that the laws now in force were insufficient, and unnecessarily exposed purchasers to risk, from the chance of married women dying, or retracting consent a Aer execu- tion of the deed ; it is enacted, that it shall be lawful for any such married woman, above 21 years of age, to alien and convey he** real estate jointly with her husband ; provided that the dei ^ be executed in the presence of one of the judges of the king's bench, or a judge of the dictrict court, or of a judge of the surrogate court of the district where such married woman shall reside ; or of two justices for such district, who shall examine such married woman apart from her husband respecting her free and voluntary consent ; and shall on the day of the execution of such deed endorse the following certificate on the deed, or to the like effect : *' That on the day mentioned in the certificate, such married woman did appear betore him, or them, \aa the case niny he] at the place to be named in the said certificate, and being examined miutuu ire.> 317 by him, or them, [as the casemay be] apart from her husband, did appear to give her consent to depart with her estate in the deed mentioned freely and voluntarily, and without any coercion, or fear of coercion, on the part of her husband, or of any other person or persons whatsoever." Sec. 2. And when any married woman shall reside out of ihe province, the deed may be executed by her in the presence of a Judge of the king's bench ; or of the district or surrogate court ; or of two justices in any district, whose certificate shall be effectual ; and it shall not be necessary for any such judge or justices to attest the deed. <^ 3. And where married women have heretofore con- veyed their estates, but no certificate has been obtained, such certificate may nevertheless be obtained notwithstanding the 12 months have expired. ^ 5. The sum of five shillings to be paid for such certificate. And see title " Vower" MILITIA. By the 48 Gr. 3. c. 1. Entitled, * an act to explain, amend and re- duce to one act of parliament, the several laws now in being, for the raising and training the militia of this province.* ^ It The governor is authorised to appoint ofiicers, which officers, shall within six months, '.ake the oath of allegiance, at the general quar- ter sessions. ^ 2. The colonel or commanding officer of any regi< ment, or battalion of militia, shall specify to each captain of a company, the limits from which such company shall be enrolled. ^ 3. Every male inhabitant, from sixteen to sixty shall enrol his name, on the first day of training, in the division or limit in which his abode may be, and shall, at such meeting, give his name, age, and place of residence, and the place from whence he last came, if lately removed, under the penalty of lOs. ; but no inhabitant shall be convicted, unless upon the trial it is proved, that he had been notified personally, or by leaving a verbal notice at his usual place of abode, of the time of meeting, at least six days previous thereto ; and no person above fifty, shall be required to bear arms, except on the annual day of meeting, or in time of war or emergency. <^ 4. Notwithstanding the neglect of any person to attend and en- rol himself, the captain or officer commanding the compa*"y, may enter the name of any such person coming to his knowledge, upon the enrolment of his company, and when so entered he shall be subject to militia duty and fines. <^ 5. The militia shall be called out on the 4th of June, annually, unless it happen on a Sunday, and then on the next day ; and every person liable, but neglecting to attend, and not having leave of absence, shall be subject to tHA. tc •'y any indifiercnt person, and should not be upon oath; at the hearini^, the facta will bo proved by adequate testimony on oath. Against a Serjeant for not warning a Militia-man. Penalty 40. § 37. Commencement as before.'] That A. K. late of the township of -——in the district aforesaid, yeoman, being a gerjeant in a certain 324 JfCifllUA. 5^1 "V [J A I V I If I i f company of (he — regiment of militia, under the command of C. D. esq. the captain of the said company, and having been ordered and commanded by the said C. D. esq. as such captain as afortsaid, to warn the militia men of (he said company to appear ut the place of enrolment [or exercise] to wit, at the township of — — , in (he district aforesaid, on the day of——, did neglect and refuse to warn G. U, of (he same township, yeoman, to appear and enrol himself as a militia man in the said company, according to the statute in that behalf, [he the said G. H. then being a person deemed capable, by the laws of the province, of bearing arms,] contrary to the &c. (conclude as before.) Against a Militia man for being absent at training on the fourth of June. Penalty 10*. § 5. •r'- •!»•..*. ^ I Commencement as before.'] That G. H. of the township of in the said district, yeoman, being a person liable, by the laws of this province, to serve as a private in the militia of this province, and not having leave of absence, or other lawful excuse, did ne- glect and refuse to attend as such private militia man in the ■ regiment [or battalion'] of militia, ut the township of in the said district, on the fourth day of June, in the year aforesaid, to be reviewed and exercised with such regiment [oroattalion] at the time and place aforesaid, contrary to the form of the statute wc. (conclude as before.) f^uMtmr For being absent at an Inspection of Arms ^ S^e. Penalty 10«. § 7* Commencement as before.] That G. H. of the township *^f in the said district, yeoman, being a militia man duly enrolled as a private in a certain company of the regiment of militia, under the command of C. D. esq. the captain of the said company, and having been duly notifled and warned to attend, at the time and place, and for the purpose hereinafter mentioned, did neglect and refuse to attend, on the i. day of.. at the township of , in the said district, upon the occasion of the said company being then and there drawn out for the inspection of their arms, and to be instructed in their duties, he the said G. H. not having leave of absence, or other lawful excuse, contrary to the form of the statute, 8ic. [conclude as before]. For Insulting Conduct when on Duty. — Penalty not exceeding £5. nor less than 10s. § 13. Commencement as before] that G. H. late of the township of--— in the said district, yeoman, being a militia man, duly enrolled as a private, in a certain company of the ■ regiment of militiai iWfiftctf. 325 uodcr the conmand of C. D. esquire, the captaio of the laid com- pany ; and while employed on militia duty, as such private, as aforesaid, to wit, on the day of at the township of — - in the laid district, did (refute to obey the lawful orders of the taid C, D. his superior officer, or did imult, by abusive words, the said C. 1). his superior officer,) he the said C. D. then and there being in the due execution of his duty, as such superio" offi- cer, contrary to the form of the statute, inc. [conclude as beforel. For withdrawing from Exercise without Leavc^^Penalty, \0s. % 96. That G. H. [as before] on the — ._ day of at the town- ship of in the said district, and while the said regiment was being reviewed and exercised, did unlawfully absent and withdraw himself, from the place of review and exercise, aforesaid, without leave, contrary to the form of the statute, &£c. [conclude as before] Against a Militia Man for not joining his Company in time of War, J^c^Penaltif £20. §8. 3iW in M Conmeni^ent as before] thnt G. H. S^c. [as before] during the present war wlween he. (or the rebellion, or other pressing exi' gency, as the case may be) having been duly ordered and com- manded to repair to a certain place, to wit, the township of ■ , ■ , in the said district, on the - . - .. day of then and there to join the said company, did unlawfully neglect and refuse to obey such order and command, and did neglect to repair to the place aforesaid, at the time, and for the purpose aforesaid, (or did abscond as the case may br.) he the said G. H. not having leave of absence, or other lawful excuse for so doing, and not having provided a proper substitute, contrary to the statute, &c. (conclude as before,) For Selling Arms, S^c. — Penalty, £5. § 15. Commencement us before] that G. H. &c. [as before] on the I day of at the township of in the said district, did unlawfully sell and deliver to one O. P. one musket, of the value of I ■ the said musket being part of the arms and equip- ments then lately before delivered to him the snid G. H. out of his Majesty's stores, contrary to the form Sac. [conclude as before.] Against a Party for Buying the same. — Penalty, £,5. § 15. Commencement as before] that S. R. on the — — . day of at the township of.. . . in the said district, labourer, did unlaw- fully buy, have and receive, of and from one G. H. (lie the said G. 326 H. then and there being a militia man, duly enrolled in the ' '■■ ■■ company of the -——.regiment of militia, under the command of C. D. esquire, the captain of the same company) one musket, of the value of the same being part of the arms and equipments then lately before delivered to him the said G. H. out of his Majesty's stores, contrary Uc, [conclude as before.'] '.It •»< /t< Summons on the preceding Tnformations. Home District, to wit. } ToG. H. of. in the said district, yeoman ; Whereas you have this day been charged be- fore us, C. D. esq., and E. F. esq., two of his Majesty's justices of the peace, for the said district ; for that you ^., [here aet forth the particulars stated in the injormation^'] these are therefore to require you to appear before us at — i— in the said district, on -.— next, the _»i-. day of at the hour of in the forenoon of the same day, to answer to the said charge, and to be further dealt with according to law. Herein fail you not. Given under our hands and s^als, the day of — -..in the yea^ of our Lord 183 — . .-.^fi -. .--i.-, f.-.; o:!? fcv^ l^J .fcsnilhd- ry]'^ . .t;!i The Convictiojij J^ -Ci -Ui&r: • arviiiii' Should be made out according to the form required by the 2 fV. 4. c. 4. See ante title * Conviction,^ p. 1 39. Commitmentt on refusal to pay the Penalty of £,0. under § 15 4" 34> Home District, 7 To the constable of in the said district, and to wit. 5 ^o ^^^ keeper of the common gaol at Toronto, in the said f^istrict. Whereas S. R. late of the township of-. in the said district, labourer, was on this day duly convicted before us, C. D. esq. and £. F. esq. two of his Majesty's justices of the peace for the said district, fur that he the said S. R. on the day of &,c. [here state the particulars relative to the purchase of arms, 8f€» as laid in the information'] against the form of the statute in that case made and provided : and we the said C. D. and E. F. thereupon adjudged the said G. H. for his said offence, to pay the sum oCfvc pounds, according to the statute in that behalf: and whereas, the said C. D. being so convicted, as aforesaid, and being now required to pay the said sum oC five pounds, and also the sum of being the reasonable charges attending such con- viction, and by us also adjudged to be paid by him, hath not paid the same, or any part thereof, but herein hath made default : — These are therefore to command you the said constable, to take the said S. R. and him safely to convey to the common gaol at Toronto, aforesaid, and there to deliver him to the said keeper JWilllla. 337 thereof, together with this precept ; and we do hereby command you the said keeper of the said common gaol, to receive the said G. H. into the said gaol, there to imprison him for the space of &c. (not exceeding one calendar month) days, unless the said sums shall be sooner paid; and for your so doing this shall be your suffi- cient warrant. Given under our hands and seals, &cc. N. B. — ^The power ofcommUment ib limited by the 34th aec. to offences ogainst the act. The 40th sec. provides another remedy for recovcrin); penalties, against any of- fender negleeUng or refusing to do stuh acts as by this act are required, viz., by distresa and Bola only. In such cases tliereforo, it would be wrong to coicnut. Distress Warrant under § 40. ^ij M J ,9U O-lOi in the said home district, the said district, in Home District) > To the constable of — to wit. S Whereas G. H. of yeoman, is duly convicted before us, C D. esq. and E. F. esq. two of his Majesty's justices of the peace for the said district, for that he the said G. H. being a person deemed capable of bearing arms, he. [here recite the conviction^ and conclude"] contrary to the form of the statute in such case made and provided, whereby he hath forfeited the sum of ten shillings: These are therefore to command j^Bi forthwith to levy the said sum often shillings, by distraining the goods and chattels of him the said G. H. and if within the space of days (not less than four ^ nor more than eight daySf hy 27 Q, 2,) next after such distress by you taken, the said sum shall not be paid, together with the reasonable costs and charges of taking and keeping the same, that then you do sell' the said goods and chattels so b}' you distrained, and out of the money arising by such sale, that you do pay the said 5um often shillings into the hands of us the said justices, to be disposed of according to law, returning unto him the said G. H. the overplus, on demand, the reasonable charges of taking, keeping, and selling the said dis* tress, being first deducted ; and yon arc to certify to us, the said justices, with the return of this precept, what y^ j shall have done in the execution hereof. Given under our hands and seals, &.c. N. B. — As the act does not expressly autiioriso the levying of the eosts, as well bn the penalty by distress and sale, it will be propc:' to make out separate folios for rs- coveriog the costs, pursuant to '.he 18 O. 3. e. 19. See title " Costs,^* p. 141. Warrant to impress BaggagC'Waggons. f/ bim Homp District > "^"^ 2^^*^'' *n ^ w \ ^^ l»'e Constable of cf_. .. la mu: .H. lO Wilt J '- By virtue of an order from n ,, colonel and commanding officer of the -^.— ~ regiment of , militia, this day bioufriit and shewn unto me, J. P. one of his Majesty's justices of the peace for the said district, by „ lieulciiunt, in captuin — ....^ 32S j»-' JlSilUHaitll^, $Ct. i Hi ' ■••It '■' I company of (he said regiment of militia, you are hereby required to provide ■ ■ ■ ' sufiicient carriages and teams, with able men to drive the same, within your constablewick, whereby to remove the arms, cloathes and accoutrements, of the said company, on their march from to in the said district; and with Uiem you are to appear at ■ aforesaid, to-morrow, precisely at — o'clock in the morning. Herein fail you not, as you will answer the contrary at your peril. Given under my hand and seal, at •>— - in the said district, the day of in the year of our Lord — — . MILL-DAMS. t-r, Bv the 9 G. 4. c, 4. Every owner or occupier of any milUdam, le- gally erected, or where lumber is usually brought down the stream on which such milUdam is erected, or where salmon or pickerel abound therein, in this province, who shall neglect to construct and erect a good and sufiicient apron to his or their dam, as hereinafter set forth, shall, for such offence, yearly, and every year, forfeit and pay .£25. ; one moiety nf which shall go to the king, for the use of the province, and the other to the party who shall sue in any court of record. ...... .v» , i^^-^. ... ^f^ Sec. 2. Every such apron shall be erected and constructed in tlie following manner, viz., — such apron shall not be less than 18 feel wide, by an inclined plane of 24 feet 8 inches, to a perpendi- cular of C feet, aiid so, in proportion to the height, wliere the width of the stream will admit, and where such stream or dam is lets than 15 feet wide, the whole dam shall be aproned in like manner, with the same inclined plane. , MILLERS. ; By 32 G. 3. c. 7 No miller shall demand, take or receive, more than a twelfth share or part fur grinding and bolting of grain, under the penalty of £iO. Quebec currency; one moiety to the king, and the other to the person that shall sue for the same in any court of record. <^ 3. No miller shall be answerable for the loss of any bag of grain or flour, unless the initials of the christian and surname of the owner be marked thereon, and such mark of dis- linction previously communicated and made known to the said owner or occupier, or his servant attending the mill. See also, title * Flour,* p. 172. MISDEMEANOR^ jVil^ Thc word misdemeanor, in its usual acceptation, is applied to all those crimes and offences for which tlic law has not provided a par- I Mi^^tMon of iftionttp ^t* 329 eby required able men to / to remove ompany, on id Willi tliem >cisely at — I will answer I district, the mill-dam, le- thesti-eamou kerel abound ict and erect ereinafter set r, forfeit and :, for the use ill sue in any t nstructed in less than 18 a perpendi- ere the width dam is less ike manner, eceive, more ng of grain, noiety to the same in any or the loss of hristian and mark ofdis- to the said See a1s0| pplied to all ivided a par- ticular name ; and they may be punished according to the degree of ofllince, by fine or iinpiisonmenl, or both. 3 Burm^ Jus, tit, Misdi'meanor. Russell, on Cr. and Misd. 43. A misdemeanor is, in truth, any crime less tlian a felony, and the word is generally used in contra distinction to felony, misdemeanors comprehending all indictable offences which do not amount to felony. 4 BL Com. 5, Nott 2. All disturbances of the peace, oppressions, misbeha- viour by public oiHders, and all other misdemeanors whatsoever, of a public evil example, against the common law, may be indicted. 2 Haw. r. C. 25. "^ 4. And whatever openly outrages decency, and is injurious to public morals, is a misdemeanor at common law. 4 Bl. Com. 65. (n) \3 Ed. And wherever a statute /or6«c?» the doing of a thing, the doing it wilfully, although without any corrupt motive, is indictable as a misdemtanor. R. v. Sanisburyt 4 T, R. 467. So, if a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. R. v. Davis, Say, 133. Where a statute making a new offence, only inflicts a forfeiture, and specifies the remedy, an indictment will not lie. R. v. Wrightf 1 Burr. 543. The true rule is staled to be this— Where the offence was ptfKshable by a common Ihw, proceeding before (he passing of a stafule which prescribes a particular remedy, by a sum- mary proceed!^' . MiSPlUSlON of felony, is the concealing of a felony which n man knows, but never consented to, fur if he consented, he is either a 390 iWomi^dfK f ii ;i!. principal or acceiflory in the felony, and consequently guilty of misprision of felony, and more. 1 H. H. 374. The punishment of misprision of felony in a common person, is fine and imprison- ment; in an officer, as sheriff or bailiff of liberties, imprisonment for a year, and ransom at the king's pleasure, by the stat. 3 Edw, 1* c, 9. If any person will save himself from the crime of mispri- sion of felony, he roust discover the offence to a magistrate, with all tbft sioeed he can. 3 in«^ 140. •{;m:V>ii(.> .;(»::.%? ; >i!. ' , MONEY. ' ■■ *i"'^ *" l-^qquS brc 1T'\^'' By the 36 O. 9. c. 2. The following goH and silver coins shall pass current, and be deemed a legal tender, viz., the British gui- nea, w<;igbing 5dwts. 6grs. Troy, at £\, 3s. 4d.; the Johannes of Portugal, weighing 1 8 dwts. Troy, at j£4. ; the moidore of Por- tugal, weighing 6 dwts. and ISgrs. Troy, at £l, lOs. ; the American eagle piece, wei^rhing 11 dwts. 6 grs. Troy, at £2. 10s.: and of silver coins, — the British crown, at 5s. 6d. ; the British shilling, at Is. Id. ; the Spanish milled dollar, at 5s , equal to 4s. 6d. sterling; the Spanish pistareen, at Is.; the French crown, coined before 1793, at 5s. 6d.; the French piece Vllivs. 10 solsJ Tonrnois, at 43. 2d. ; the French piece of 36 sols. Turnois, at Is. 8d. ; the French piece of 24 sols. Tonrnois, at Is. Id.; the Americ&n d^^Mar, at 5s. ; and a'il the higher and lower denomina- tions of the said gold and silver coins shall also pass current, and be a legal tender, in the same proportions. ^ 3. And the counter- feiting, or importing any such counterfeit nrioney. shall be felony : and by % 4. Any person guilty of knovt^ingly altering the same, shall suffer one year's imprisonment, and be set in the pillory for one hour; and for a second offence be guilty of felony. % 5. Every person importing such ba^se coin, to sell or pass away, shall forfeit ihe same. ^ 6. And such coin may be seized by any person hav- ing a Justice's warrant, and Shall be broken or defaced in open court, aAer being found to be counterfeit, or before a justice ; and one moiety shall go to the king, for the use of (he province, and the other to the informer. <^ 7. No tender in copper money shall be legal, beyond one shilling. <^ 9. Any person to >vhom any gold, silver or copper money, shall be tendered in payment, and shall suspect the same to be false or counterfeit, may cut, break or deface the same; and if found to be counterfeit, the person tender- ing the money shall bear the loss; but if found to be good and law- ful money, then the person deiacing the same shall rereive it at llio rate it wns coined for. ^10. And any question arising thereon, tthall be determined by one justice, who may summon three indif- ferent persons, in case of doubt, whose opinions, or the majority, ■ ! JWutr, ^e. 331 shall be final. <^ 11. Oounterfeit coin produced in any court of Justice, shall, by order of the judge, be cut in pieces in open court, or in the presence of a justice, and delivered to the owner. By 7 G. 4. c. 4. The following coins are raised to a higher value, and are declared to pass current and be a legal lender, as follows: — the British crown, at 5s. 9d. ; the British shilling, at Is. 2d.; and that all the higher nnd lower denominations of the said (British) silver coins shall also pass current and be a legal tender, in the same proportion. <^> 3. The sum of 17s. 4d. British silver and copper money, shall pass as equivalent to 20.'. currency. By the 11 G. 4. c. 6. British coins depreciated ^V shall not be legal money. '^ 3. The Spanish pistareen, French crown, French piece of 4 livers 10 sols, the French piece of 36 sols, and all the higher and lower denomination of the said silver coins shall no longer be a legal tender. %{ aniii^ibw Js^^auJm^' % r .4 jVIuRPER.— See an ie title " Ilomicidn^" p, ^^§. , ., ... '. *^*^' MUTE. By the 3 W* jf^c, 4. If any person, being arraigned, upon any indictment for treason or felony, shall stand mute of malice, or will not answer directly to the indictment, it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty," on behalf of such person, which shall have the same effect as if such p^r.99n had pleaded the same. NEW-YOUK CUHUENCY. f^^ vd Um Bv the 2 G, 4. c. 13. It is enacted, that from the 1st of July 1822, no interest or costs shall be recovered on any sums expressed in New-York currency, nor any books of account given in evidence, unless expressed in provincial currency. ^^^^i ■h u WUISANCE. '*3iofa ik"50 Nuisances are of two kinds— puJ//f and private. A public, or common nuisance, is an oflenre against the public, either by doing a thing which leads to tlie annoyance of all tho King's subjects, or by neglecting to do a thing which the common good requires* 1 Haw. c, 75. <§> \.\ and is an indictable oflence. A private nuisance, is anything done to the hurt or annoyance of the lands, tenements or hercdilnments of another, as by building a house so near to a neighbour's as to stop his lights, or shoot the ruin-water upon his house. 3 BL Com. 2? 6. This is not an 332 itnit$antt* *■ M mn I ■: h' I indictable offence, but only the subject of a civil action, in which the party may recover damages for liie iftjury. ^,,,, At the same time, if a private individual sustain a special griev- ance, arising out of the common injury, he has a right of action for the particular damages occasioned to him, notwithstanding the nuisance may affect all the Kir j*s subjects. 3 Bl. Com, 219. What is a Public Nuisance. The offending qualities of it nuisance are, in general, smell, noise, danger or obstruction ; and the existence of it as a public nuisance, depends upon tl)e number of persons annoyed by it. 1 Burr. 337. All trades and manufactures which are set up in a town, and occasion inconvenience to the whole neighbourhood, or which are carried on so near to apublic highway as to cause the same inconvenience or danger to persons lawfully passing along it, may be indicted as public nuisances. But where a person sets up a noxious trade remote from human habitations and public roads, and new bouses are afterwards built, and new roads constructed near it, the party, in such case, is not guilty of nuisance ; for the public cannot, by their own act of coming to settle in the neighbourhood, make that a nuisance which was not so before — III the principle of ** volenti nan fU injuria.''* R. v. Cross, 2 C» fy P. 483. let, if the trade afterwards become more noxious, he may be indicted for the additional nuisance. R. v. Watts f M. &f M. 281. To constitute a nuisance proceeding from a noxious trade, it is not necessary, as Lord Mansfield has observed, that the smell should be unwholesome; it was enough if it rendered the enjoyment of life and property uncomfortable. R. v, Wiiite^ 1 Burr. 333. To mal\e candles in a town, by boiling stinJdng stuff which annoys the whole neighbourhood with stenches, is also a common nuisance. Matthews V. Carey, 3 Mod. 137. 1 Haw. c. 75. § 10. So, if a brew-house, or a glass-house, cnnnot be carried on without great- ly annoying the neighbourhood, it may be indicted as a nuisance. 2 Haio. c. 75. '^ 10. The keepinr^ of hogs in a town, is not only R nuisance by statute, (2 JV. S^ M. sess. 2. c. 3. "^ 20.) but also at common law. R. v. IVigg, 2 Ld. R. 11G3. So also, to steep stinking skins in water near a highway, and also near several dwelling-houses, by which tlie air is corrupted, is the subject of an indictment. R. v. P,i2)pm"nu, 1 Sir. 686. Making great noises in the night with a sjjeaTcing-trumpet, to the disturbance of the neighbourhood, has been also decided to be a nuisance. R. v. Smith, 1 Sir. 764. So, to kepp dogs, which make noises in the night, seen)8 to be an indictable offence. 2 Chit. Crim. L. 647. This, however, must be unders'ood only where a whole neigh- bourhood is disturbed by them, jthcrvvisc it will only be a imvalc J jUniuuntt. 335 ion, in whicii special griev- ght of action hstanding the Com, 219. finera!, smell, t as a public tnoyed by it. re set up in a ibourhood, or :ause the same along it, may 'soo sets up a >lic roads, and ructed near it, for the public ;ighbourhood, the principle P. 483. Yet, ly be indicted M. 281. To ade, it is not > smell should enjoyment of in: 333. To which annoys mon nuisance. § 10. So, if nithout great- is a nuisance, n, is not only 20.) but also also, to steep near several the subject of Vlakinfj great listurbnnce of sauce. R- V. noises in the lim. L> 647. whole ncigh- y be a jirivatc nuisance ; for where the noise made by a tinmant in carrying on his trade, only affected the inhabitants of three houses, and it appeared that by shutting the windows, the noise was in a great measure prevented, it was held that the indictment could not be supported, as the annoyance was, if any thing, a private nuisance. Rex. v, Lloyds 4 Esp, 200. All disorderly inns or ale-houses, bawdy-houses, and g»niiiig-houses, are also public nuisances. 1 Haw. c. 75. <^ 4. 4 Bl. Com. 1G7. So, whatever outrages decency, and is injurious to public murals, is a common nuisance, and indictable as a misdemeanor. 1 Haw. c. 5. ^ 4. 4 Bl. Com. 65. n. Any thing, also, which is productive of im- minent danger, or which causes reasonable terror to the inhabitants of a neighbourhood, may be consi ' red as a public nuisance. Thus, to erect gunj)owder mills, or magazines, in or near to a town, or to put on board of a ship a quantity of gunpowder, without giving notice, is indictable as a nuisance. R. v. Williams, 4 Bum, 758. By 10 fV. 3. c. 7. making, selling, or exposing to sale, any fireworks, or throwing or firing them into any public street or highway, is declared to be a common nuisance. So, to let a fierce mastiff or bull-dog, that is used to bite people, go about unmuzzled, to the danger iUul terror of the neighbourhood, is also a common nuisance- ; and the owner may be indicted for suf- fering him to go at Ir.rge. 4 Bunt's J. 578. So, for a persoi) affected with an infecdous disorder to go or be carried about in the highways and other public places, is ao indictable ofTenceo Accordingly, where the defendant was in tlie habit of carrying her child, while infected with the » .al^-pox, along a highway, ana | near to houses, this was held to be a common nuisance, and iiif | dictable as such. R. v. Vantandillo, 4 M. ^ S. 73. So, where a surgeon and apothecary was indicted for inoculating children with the small-pox, and while they were sick of it, unlawfully and injurioiisly causing them to be carried along the public street, it was objected that the defendant in this cas3 was, by profession, a person qualified to inoculate with thia disease, and that the causing the chiUlren to be carried along the street was no more than his directing his patients to attend him for advice, instead of visiting them, or prescribing what he might deem essential to their recovery- — air and exercise. It was held that though inocur lation may be practiced lawfully and innocently, yet it must be done under such safeguards as not to endanger the public health; and that the defendant, in this case, was clearly guiiiy of an in- dictable offence. R. v. Burmtt, 4 M. ^ S. 272. It is also a public nuisance for any common dealer in provision^ to sell un- wholesome food, or to mix noxious ingredients in any ihing made and supplied for the food of man. With respect to nuisances by .•< / •• \ ^v^ d34 JItifMiitr. ; ,• I t the obstruction in highways and rivers, The jurors for our lord the King, upon their , », _ to wit. 5 °^^'' present, that J. S. late of the township ' of — — in the county of in the home district, (labourer) on the — — day of — — — in the ■ year of the reign of our sovereign lord William the fourth, with force and arms, at the township aforesaid, in the county and district aforesaid, near unto divers public streets, being the King's common highway, and also near unto the dwelling-houses of divers liege subjects of our said lord the King, there situate and being, unlawfully and injuriously did (make, erect and set up, and did cause and procure to be made, erected and set up, a certain furnace and boiler, for the purpose of boiling tripe, and other entrails and ofl'als of beasts; and that the said J. S. on :■ ** day and year aforesaid, and on divers other days and timeij, letween that day and the day of the taking of this inquisiiicL, u>. the township aforesaid, in the county and i! ! \ . n daitfi. 935 ** Highway," leni. y, a common I a highway, ecessity for the nuisance, the ice, is to pro- it. No lengll' I, 7 EmU 199. m convitted of ■emoval of the the court m\\ case. If the I of the court liis own costs, heir judgment, » appear at an II appear ta the ated, the court rary should ap- s its judgment, e circumstances for a nuisance It be convicted, lor.*.**" M*^"' (Archbold.) ng, upon their )f the township (labourer) on reign of our d arms, at tlie said, near unto hway, and also ects of our said and injuriously ure to be rotde, for the purpose leasts; and that on divers other y of the taking he county and district aforesaid, unlawfully and injuriously did boil, and cause and procure to be boiled in the said boiler, divers large quantities of tripe, and other entrails and offals of beasts), by reason of which said premises, divers noisome, offensive, and unwholesome smokes, smells and stenches, during the time aforesaid, were from thence emitted and issued, so that tt.e air then and there was, and yet is, greatly filled and impregnated ,vith the said smokes, smells and stenches, und was and is rendered and become, and was and is corrupted, offensive, uncomfortable and unwholesome, to the great damage and common nuisance of all the liege subjects of our said lord the King there inhabiting, being and residing, and going, returning, and passing through the said streets and high<> ways, and against the peace of our lord the King, his crown and dignity. Ml il ■ .■^t. ...l.)S.. . uio? 'j(fr Second Count for continuing the JVuisanee. iUi «'"■•". And the jurors aforesaid, upon their oath aforesaid., do further present, that the said J. S. on the said day of in the year aforesaid, and from that day until the day of the taking of this in- quisition, with force and arms, at the township aforesaid, in the county and district aforesaid, (a certain other furnace and boiler, for the purpose of boiling tripe and other entrails, and offaU of beasts, before that time, made, erected and set up, by certain per- sons, to the jurors aforesaid unknown, unlawfully and injurioqfjy did continue, and yet doth continue; and that the said J. S. on the said day of -- — in the year last aforesaid, and on divfenri other days and times) &^c. as in the first count from the (*) to the end.) ... .... 'J .. r.f OATH. An Oath taken on the Common Prayer Booh, containing the Epistle* % and Gospels, is good, 2 Keb. 314. The Stat. 15 Cr. S. c. 39. Gives authority to justices to adminis- ter oaths where penalties are to be levied, or distresses made in pursuance of acts of parliament. A Jew should be sworn on the old Testament. 2 Keb. 314. and they are allowed io put on their hats when sworn. 2 Sir* 821. A Mahomedan on the Koran. 2 Sir. 1104. ; and a Gentoo, accor- ding to the custom of his religion. 1 Atk, 21. It is immaterial what the particular bpinions are of persons professing Christianity, as far as regards the taking of an oath ; it is only necessary that they believe the sanction of an oath, the existence of a Deity, and a future state of rewards and punishments. Pealce, A. 11. But ^S6 ^ail^u oc 4HH^t, ■ ' !i'. ml- A i 'H a penon having no idea of a God, or n aifure etate of retribution, cannot be admitted to taite an oath. Leach. 482. OATHS OF OFFICE. By Stat. 13 C. 2. stat. 2 c. 1. tuid 5 G, c. G. ^ 1. 2, Every person elected or chosen mayor; alderman; recorder; bailiflf; town clerk ; common councilman ; or other oiTice of magistracy, place or (rust, or other cmploymeat relating to the government of cities, corporations, boroughs,' kc. shall take the oaths of alle- giance and supremacy, at the same time that the oath of ofllce is taken, vvhicli shull be administered by those, who by charter or usage administer the oath of oflice, and in default thereof by two justices of the corporation, if there be any such, or otherwise, by two justices of the county ; and in default thereof, every such election shall be void ; which said justices shall cause memoran- dums to be made of such oaths tuUen before them, and delivered once a year to the town clerk, or other register or cl^rk, who shall enter the same in their bookiji. And every person who shall be admit ed into any office, civil or military, or shall receive any pay, b^ reason of any patent or grant from the king ; or shall have any command or place of trust in England^ or in the navy ; or shall have any service or employment in the king's household ; all ecclesiastical persons, heads and members of colleges, being of the foundation, or having My exhibition, of eighteen years of age; and all persons teaching pupils, schoolmasters and ushers ; preachers and teachers of se- parate congregations ; high constables, and practiaers of the lavf^ shall, within six calendar months after such admission, takr; and subscribe the oaths of allegiance, Uc. in one of the courts at IVisi- minster, or at the general or quarter sessions of the peace, where he shall reside, between the hours of 9 and 12 in the forenoon, and no other ; and during the time of the taking thereof, all proceed- ings in the said court shall cease. 1 G. st. 2. c. 13. "^ 2. ; 2 G. 2. c. 31. ^ 3. 4.; 9 G. 2. c. 2G. <^ 3.; 25 C. 2. c. 2. '^ 2. Every per- son making default herein, shall be incapable to hold his office ; and if he shall execute any official duty after the times are expired, he shall, upon conviction, be disabled to sue in any action, &£c. and forfeit i;500 to him who shall sue for the same. 25 C. 2. c. 2. ^ 4. 5. 1 G. sL 2. c. 13. ^ 8. ^^y^ By 3 TV. 4 c, 13. An act to dispense with the necessity of tak- ing certain oaths, and making certain declarations in the cases therein mentioned, and to render it unnec:?ssary to receive the sacraments of the Lord's Supper as a qualification for offices, or for other temporal purposes. It is enacted that it shall not be u ^mxtv, tcz. "» 337 neceiiary for any person appointed, or (o be iippoliUeJ, to any oiiice ill this province, civil or military, mayor or otiier oflicer, or member of any corporation, or for any person ndmitted as a bar" rister or attorney, to make any declaration or subscription, ur to take or subscribe any other oath than the following : 1, A. B., do sincerely promise and swear that I will be faithful and bear true nllegiance to his Majesty King William, (or the reigning sovereign for the time being, or if a Queen, "to her Ma- jesty Queen ■■ ,") as lawful sovereign of the United Kingdom of Great Britain and Ireland, and of this province dependant on and belonging to the said kingdom ; and that I will defend him, (or her) to the utmost of my power, against all traitorous con- spiracies or attsmpts whatsoever, which shall be made against his (or her) person, crown or dignity ; and that I will do my utmost endeavour, to disclose and make known to his (or her) Majesty, his (or her) heirs or successors, all treasons or traitorous conspi- racies and attempts which 1 shall know to be against him (or her) or any of them ; and all this 1 do swear without any equivocation mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or power whatsoever, to the contrary. So help me God. Sec. 3. Which oath, together with the oath of office, shall be taken within the same period, and under the same disabilities and penalties for the omission thereof, as is now bv law provided. <^ 4. No person shall be required to take the sacrament according to the rites of the church of England, nor shall the omission to do so, subject the party to any penalty or disability. OFFICER. If a public officer neglects a deity incumbent on him, cither by common law or by statute, he is indictable for his offence, being considered as amenable to the law fur every part of his conduct, and liable to punishment for not faithfully discharging it. 7{. v* Wyutty 1 Salk. 380. Anon Mod. 96. IL y. BainbridgCt I ffaw^ c, 66. '^ 1. Note, ORDERS OF MAGISTRATES. Where a justice of the peace has power to make an order, and direct it to an inferior ministerial officer, if such officer disobey it, and there is no particular remedy prescribed to punish his disobe- dience, it is an indictable offence, li. v. Davis, Say. 163. 1 Bott. 388. : and a fortiori the disobedience of an order of sessions, or Y 338 iJ4i" '••^it By the 39 Q, 3. c. 3. It is enacted, that when the father or mother of any infant child shall die, or shall abandon their infant child or children, the town>wardens of any township, where such child or children shall be, with the approbation and consent of twojustices, may bind such child or children as apprentices, until the age of 21 years, in case of males, and 18 years in case of females; and the indenture under their hands and seals, and countersigned by two justices, shall be valid in law. ^ 2. The like power is given to the mother, when the father abandons his children. ^ 3. But when the relations of any such orphan or abandoned children, are «ble and willing to support and bring them up, the town-wardens are not to apprentice them: and by ^ 4. A further exception is made, where the child has attained the age of 14 years, in such case he shall not be apprenticed without his consent thereto. For the form of an indenture, see title * Apprentices* ante p. 24. r>T(:Wf; OUTLAWRY. .^8 By the 55 G. 3. c, 2. ^ 2. The several courts of quarter sessions in the several districts in this province, are declared to be in the place and stead of the sheriffs' county courts in England, so far as respects any outlawry. <^ 3. The process upon every indictment shall be a capias from the court where the indictment is found, to bring the person indicted into court; and if not taken, during the sitting of the court, then to bring him before some justice, to be dealt with according to law, which said capias shall be made re- turnable in the court of king's bench, on the first day of term, next after the sitting of the said court, before which such indictment shall have been found, and if the sheriff shall return jion eat inven- tus j then an alias shall issue from*the king's bench, tested the first ^^ .. iDtttliitutl^. nni 3t59 day of t«rm, if in term time, or on the last day of th« preceding term, if in vacation, returnable before the court of king's benchi on the first day of the next term. *^ 4. And if to the said writ tlie sheriflf shall return non Coi inventus, then upoji motion in court, or before a judge, in vacation, u writ oi exigent shall issue, tested on the first day of term, or on the lust day of the preceding term, if in vacation, directed to the same slieriA', returnable on the first day of the fifth term from that in which the same was awarded, and in the form required, (vide act). <^ 5. The sliei-ifi' shall, at three snccessive general quarter sessions, before the return of the said writ, in open court, immediately after the commission of the peace shall be read, make proclamniion of the persons named in the exi- gent, requiring them to render to the indictment. Sec. 6. And if the persons so demanded do not nppear, the sherifi' shall endorse upon the said writ of exigent, the following return : — s'V bli'Ii Jpiiial iij({' oo: Form oj Return. tltjl, ii f.»,.t. f •■*(».- "By virtue of the within writ, to me directed, at the court of general quarter sessions of the peace, held at — _— in « exigent, di- rected to the sheriff of such district, in the form prescribed, (vide act) and the sheriff of such district shall, at three successive courts of general quarter sessions, before the return of the said writ, in open court, the first day of the court, make proclamation according to the said writ, and shall return the same in the following form : — u*»; George the third, Uc. hic. &ic. . j v- >*■ ■■ '•' ,'*.t,>* ^'ifiMR.'^i To the sheriff of the —— district, gree/Mi^. <^ . ji^ •»rM! Whereas, by a writ, we lately commanded our sheriflf of the dis- trict of—— that he should cihuse A. B. late — — to be demanded w ,:! ■*vi i'.i; 840 ; n ur*!/.- :*4.^ la*^- ^.■^v^^' .»ii- OVERSEERS OF HIGHWAYS. By the 11 Gr. 4. c. 7. The inhabitants, at their annual town meet- ings, may choose any number of overseers, not exceeding thirty. For the duties of the office, see ante title "Highways," p. 199. (.»«(♦-);. 'i\ PARDON. ^Sm:-- A PARDON is a work of mercy extended towards a criminal, whereby the King, either before his attainder, conviction or sen- tence, or afterwards, forgives him for the crime which be has committed, and remits any punishment, pain or penalty, which he has (hereby incurred. 2 Imt* 233. t«a »-i* v-^-. 4,0 •*H: • ■ y .. 341 By the 27 H. 8. c. 24. It is enacted, that the King shall have (he whole anci sole power and authority thereof, united and knit to the imperial crown of this realm, as of good right and equity it appertaineth. The power of pardoning ofTenccs is thus insepa-^ rably incident to, and iniierent in the crown ; and is entrusted to the Sovereign, upon a special confidence that he will spare those only whose case (could it have been foreseen) the law itself would have excepted out of its general rules, which the wisdom of man cannot make so perfect as to suit every particular case. 1 Show. 2S4. 2 Haw, c, 37. ^ 8. But besides a special pardon granted by the King's charter, there may be a general pardon, or act of grace, passed by the legislature ; but in this instance also, pro- ceeding from the King, for the pardon of certain crimes, com- mitted before a certain period named in the act. Such was the act of grace of 20 Gr. 2. c. 52. But these acts of general pardon have now, for a long time been discontinued ; the special pardon, therefore, proceeding from the King's peculiar grace and favor, is that with which we have now alone to deal. The King may pardon all offences against the crown, or the subject, with some few exceptions. These are — 1. The sending any subject of the realm n prisoner into any parts beyond the seas ; which, in order to preserve the liberty of the subject, is, by the habeas corpus act, (the 31 Car. 2. c. 2. '^ 12.) made apra:munire, and unpardonable, even by the King. And see ante " Kidnapping." Neither can the King pardon a common nuisance, while it remains unredressed, or so as to prevent its abatement. Nevertheless, where a man is convicted, and fined for n nuisancct the King may, after judg- ment, remit the fine. 2 Haio. c. 37. <^ 33. Upon the same prin- ciple, the King cannot pardon an oflbnce against a penal statute after the information brought ; for the informer has then acquired a private property in his share of the penalty. 3 Inst, 338. 4 Bl. Com. 398. There is also another restriction of a peeuliar nature, that affects the prerogative of pardoning ; and tha'. is in the case of parliamentary impeachments, wherein the King's pardon cannot he pleaded to any such impeachment, so as to impede i.'iquiry, and stop the prosecution of great ar^d notorious oflenders. 12 ^ 13 W. 3. c. 2. This statute, however, does not restrain the King from pardoning the offender after conniction on impeachment. 4 Bl, Com. 399. A pardon is i.ot effectual unless it is under the great seal ; for a warrant under the privy seal, or sign manual, tliough suflicient to admit the part.y to bail, is not of itself a com- plete irrevocable pardon. 6 iSV. Tr. !G0. It is also a general rule, that wherever it niuy be reasonably presumed that the King has been deceived, the pardon is void. Therefore, tmy suppres- sion of truth, or suggestion of falsehood, in a charter c/ pardon. 34^ .*:■ i^Atnron* will vitiate the wliole, for the King vtm misinformed. 8 Inst. 238. 2 Haw. c. 37. ^ 8. And this is in conformity with the statute of 27 Ed. 3. c. 2. which directs that in every charter of the pardon of felony, the suggestion, and the name of him that maketh the suggestion, shall be comprised ; and if it be found untrue, the charter shall he disallowed. General words have a very imperfect effect in pardons; — thus, a pardon of all "felonies" will not par- don a conviction or attainder of felony ; but the conviction or attainder must be particularly mentioned ; and if the party is con- victed by verdict, the pardon must recite the indictment and con- viction. 2 Haw. c. 37. ^ 8. The statute Ric. 2. st. 2. c. 1. Enacts, that no pardon for treason^ murder, or rape, shall be allowed, unless the offence be particularly specified therein ; and particularly in murder, that it shall be expressed whether it was committed by lying in wait, as- sault, or malice prepense ; upon which Sir Edward Coke observes, that it was not the intention of the parliament that the King should f ver pardon murder under these circumstances, and therefore they prudently laid the pardon under this restriction, because they did not conceive it possible that the King would ever excuse an offence h^ name, which was attended with such high aggravations. 3 Inst. 236. And it is remarkable enough, says Sir W. Blackstone, that there is no precedent of a pardon in the register, for any other homicide than that which happens se dcfendendo, or per inforiU' Ilium; to which two species the King's pardon was expressly con- fined by the statutes of 2 Ed. 3. c. 2. and 14 Ed. 3. c. 15. which declare that no pardon of homicide shall be granted, but only where the King may do it by the oath of his crown ; that is to say, where a man slayeth another in his own defence, or by mis- fortune. But the above statute, {Richard 2.) enlarges, by impli- cation, the royal power, provided (lie King is not deceived in the intended object of his mercy; and therefore, pardons of murder were always granted with a non obstante of the statute oi Richard 2'. till the time of the revolution, when, the doctrine of non obstantcs ceasing, it was doubted whether murder could be pardoned gener- ally ; but it was determined by the court of king's bench, that the King may pardon on indictment of murder, as well as a subject might have discharged an ,n, peal for that offence. Salk. 499. A pardon rray also be conditional ; that is, the King may ex- tend liis mercy on what terms he pleases, and consequently, may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend. 2 Haw. c. 37. v^ 45. This preroga- tive is occasionally exercised in this province, in the pardon of felons, on condition of banishment for life. A general pardon * 'I m^..^ Imi. 238. e statute of Lhe pardon maketh the cintrue, the y imperfect all not par- nv'iction or ►arty is con- nt and con- pardon for e offence be rdert that it in wait, as- ke observes. King should lerefore they use they did se an offence ons. 3 Inst, ckstone, that 9r any other per infortU' ipressly con- c, 15. which d, but only I ; that is to , or by mis- es, by impli- ceived in the IS of murder if Richard 2. aon obatantcs doned gener- nch, that the as a subject Salk. 499. [ing may ex- ]ucntly, may fit, whether f the validity 'his prcroga- he pardon of neral pardon II lisi muni Mmt^* 343 1 by act of parliaracrJ, containing no exceptions, is more beneficial trj one respect, than by the King^s charter, inasmuch as a man is not bound to plead it ; but the court must eci -officio take notice of it; neither can he lose the benefit of it by his own laches or negligence, as he may of the Kind's pardon. Fost. 43. 2 Haw. c. 37. § 61, But if any persons are excepted out of an act of general pardon, no one can then take benefit of it without specially pleading it ; and he must shew in his plea, that he is not one of the persons excepted. Id. ^ 60.- But the King's pardon must, in all cases, be specially pleaded, and produced in court under seal; and this too at a proper time ; for if a man is indicted, and has a pardon in his pocket, and does not plead it wlien arraigned, but puts himself upon his trial by pleading the general issue, he thereby waves the benefit of the pardon, end cannot afterwards resort to it. 2 Haw. c. 37. ^ 69. 67. By 5 ^ 6 ^. ^ M. c. 13. VVh^.;) a pardon is pleaded by any criminal, the judges have a discretionary power to bind him ta hi» good behaviour, with two sureties, for any term not exceeding seven years. The effect of a free pardon by the King, is to make the offender in all respects a new man ; to acqui;' him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon ; and not so muc'* to restore hh former, as to give him a new credit and capacity. But nothing can restore or purify the blood when once corrupted ; which is the consequence of the at- tainder o( treason or murder, if the pa 'don be not allowed till after the attainder, but the high and transcendent power of parliament; yet, if a person so attainted, receives the King's pardon, and after- wards has a son, that son may be heir to his father ; because the father being made a new mnn may transmit new inheritable blood ; though had the son been born before the pardon, he could never have inherited at all, nor can he inherit if he has an elder brother living, born before the attainder; for in that case the land will escheat pro defeciu hceredis. 1 Hale, 353. 4 Bl. Com. 402. By Stat. 3 W. 4. c. 5. corruption of blood is taken away, except in cases of high treason : and it shall be lawful for every person or persons, to whom the right or interest, to, or in any lands after the death of any such offender, should or might have appertained, if no such attainder had been, to enter into the same. ifM|. PATENT RIGHTS. By the 7 G. 4. c. 5. When any subject of his Majesty, being an inhabitant of this province, shall allege that he has invented any new and useful art, machine, manufacture, or composition of mat- 344 ^PaUlll llCj|t|l0. f i ter not known, or used before the application, and ihall petition tiie governor, signifying a desire of* obtaining an exclusive pro- perty in the same, and praying a patent ; it shall be lawful for the governor, &c. to grant letters patent under the great seal of the province, and pas^^ed in the usual form, to the said petitionc , his executors, &&c. tur a term not exceeding fourteen years, and every inventor, before he can receive such patent, shall swear (or being a Quaker, &c. affirm,) that he is the true inventor or di»* coveror of the art, nmchine, or improvement, for which he solicits a patent, (which oath or affirmation may be made before any jus- tice) and shall deliver a written vl.icription of his invention or improvement, and of the manner ^r rocess of compounding the same, in such fuU, clear, and e: ct ^.rms, as to distinguish the same from all other things before known ; and to make any per- son skilled in the art or science, of which it is a branch, or with which it is most clearly connected, to make compound and use the same ; and in the case of any machine, he shall fully explain the principle, and the several modes in which he has contemplated the application of that principle or character, by which it may be distinguished from other inventions ; and he shall accompany the v/hole with drawings and written references, where the nature of the case admits of drawings, or with specimens of the ingredients, or of the composition of matters, sufficient in quantity for the pur- pose of experiment; which description, signed by himself, and at- tested by two witnesses, shall be filed in the office of the secretary of the province, and certified copies thereof shall be competent evidence in all courts, where the patent right shall come in ques- tion, and the inventor moreover shall deliver a model of the ma- chine by him invented, if the secretary shall deem such model necessary. For the fees payable on obtaining such patent and other colla- teral matters, see the act. ti b': Petition for a Patent. -ji' To his excellency sir John Colborne, K. C.B. Lieutenant Gover- nor of the province of Upper Canada, and Major General com- manding his Majesty's forces therein. The humble petition of A. B. of .-—^m. in the home district, engineer — Shewcth : That your petitioner is a natural born subject of his Majesty, [or a subject of his Majesty,] and that he has invented a new and useful machine, he (describing the article in general tcrtns,) not known before this application, a specification whereof, acconi- Ilrnitentfam 345 panied with the necessary drawings and references, and duly at- tested, has been filed by your petitioner in the office of the secre- tary of this province, pursuant to the statute in such case made and provided. Your petitioner therefore, humbly prays, that your excellency will be pleased to direct, that his Majesty's letters patent may be granted to your petitioner for the said invention, and for the term allowed by law, and your petitioner as in duty bound, will ever pray, &c. A. B Toronto, 1st Jany. 1835. - -fv v r t i; ^i.iAs^. Oath of the Invention. ,. ;. -., .,. , Home District, ) A. B. of ._-. in the said district, engineer, to wit. > maketh oath and saith that he verily believes, he is the sole and true inventor and discovcror of the machine mentioned, and re'^n'red to in the epeciiication and drawuigs here- unto annexed. A. B. Sworn the ■ ■ day of .183 — . ,.. Before J. P. . 1 .: Tnt Specification. Ho general Pnrm can be given of this, it will of course depend upon the construction of each particular invention; the act how- ever expressly defines what it shall contain, and requires also, that it shall be signed by the petitioner and be attested by two wit- nesses. 1 .« UH Penalties.— See ante title " Fine*," p. 169. PENITENTIARY. By statute 3 W. 4. c. 44. The sum of £12,500. was granted by the provincial parliament for the erection of a penitentiary in this province, to be vested in his Majesty. By the 4 W. 4. c. 37. It is enacted, that the penitentiary shall be under the direction of five inspectors, to be appointed by the lieutenant governor during pleasure, and that the said board of in- spectors shall choose one of their number to be their president, and shall have full power to make all necessary rules and regula- tions respecting the discipline and police of the said penitentiary, <^ 2. It sliall be the duty of the inspectors to examine into all mat- ters connected with the government discipline and police of the penitentiary ; the punishment and employment of the prisoners tlicrcin confincti ; the financial concerns and contracts for work ; If'' ti n LjSI -'Ml ^4 ' -it 346 ^ntuntuvn* and ibe purctiaiei and sales of the articles provided for such peni> teniiary, or sold on account thereof; and they may from time to time require reports from the w«'\rd( n or other officers ot the peni- tentiary, in relation to any of the said matters. ^ 3. Also to inquire into any improper conduct alleged against the officers, and for this purpose they shall be empowered to issue subpoenas to compel the attendance of witnesses, and the production of papers and writings before then. ^ 4. And any witness forswearing, shall, on conviction, suffer the pains and penalties of perjury. § 5. It shall be the duty of the warden and other officers, to admit the inspectors into every part cf said penitentiary, and exhibti all books and papers, &c. ^ 6. The board shall keep minutes of its proceedings, signed by the* members, and shall n?eet once in two months at the penitentiary, and then inspect the same, and shr.U annually, on or before the 1st of November, make a report to the legislature, of the state and condition thereof; of the prisoners con- fined therein ; of monies expended and ieccived ; and geaernlly, of all proceedkigs durinp; the past year ; provided always, that no in- spector feliall be wardrii, or be concerned in the business of suc5i warden, or hoid any appointment connected with the penitentiary. ^ 7. The officers of iUe pen'ucnliarv:;|ball be as follows : — 1. One warden or principal supei'intendent, who shall reside at or near the pt'nitentiary. 2. One clerli. 3. One chaplain. 4. One physician and surgeon. 5. One deputy warden, who shall also reside at or near the penitentiary. 6. And not exceeding- twenty keepers : such clerk and keepers to be appointed by the board of inspectc '8, and to hold office during pleasure ; and the warden, chaplain, physician, and deputy warden, to be appointed by the Uetuenant governor, to hold their office during pleasure. '^ 8. The Heutenant governor is authorised to procure a gu^rd, who shall, while on duty, be subject to the orders of the warden or his deputy. ^ 9. The warden, before entering on the duties of his office, shall give a bond to his Majesty, with sufficient sureties, to be approved by tlie inspectors, in the penal sum of £2,000. for the faithful performance of his duties, according to the form annex- ed, and shall be filed with the secretary of the province ; and the warden, clerk, deputy warden, and keepers, shall, before they en- ter upon their respective offices, severally take and subscribe, before the chairman of the quarter sessions of the Midland district, the following oath, to be filed with the clerk of the peace. "I, A. B. do promise and swear, that I will faithfully, diligently and justly, serve and perform the office and duties of of the provincial penitentiary, in Upper Canada, according to the best of my abilities. So, help me God." »^..v ^r • ^j < >. • m" |)enfteift(avi^* 347 ir such peiil- Vora time to ot the peni- ^3. Also to officers, and iubpoenas to m of papers forswearing, erjury. "^^ 5, to admU the d exhibii aU uiiiutes of Us i once in two ne, and sbf.U report to the jrisoners con- geaernliy, of ^s, lb;U no in- siaess of sucli I penitentiary. ws: — 1. One le at or near jin. 4. One vho shall also eeding twenty f the board of d the warden, )ointed by the easure. '^ 8. a guprd, who warden or his ! duties of his >nt sureties, to af £2,000. for le form annex- ince ; nnd the >efore they en- ind subscribe, idland district, leace. jUy, diligently of of the ing to the best Sec. 10. It shall be the duty of the warden or his deputy, to at- tend constantly at the penitentiary, except when performing some other necessary duty ; to exercise a general supervision over the government, discipline and police, of the said peniten and dispose of the same, for the benefit of the province, when the labour of the convicts is not let ( ..t by contract. ^11. AH transactions and dealings on account of the penitentiary, shall be in the name of the warden, by his name of office, of ** warden of the provincial penitentiary in Upper Canada," and by that name he shall sue and be sued. ^ 12. Disputed claims shall be referred to arbitration. ^ 13. Whenever the inspectors of the penitentiary shall so direct, it shall be the duty of the warden to make contracts from time to time, for the labour of the convicts, with such persons and upon such terms as the warden may deem most beneficial. *^ 14. The prisoners shall be supplied with provisions by contract, unless the inspectors shall otherwise direct ; such contract to be made annually or semi-annually, under the direction of the inspec- tors, at a fixed price pc day, for each prisoner ; such contracts being previously advertised for in two of the district newspapers, and in such other newspapers, and for such time as the inspectors shall direct ; and the contractors shall give satisfactory security for the performance of their contracts. "^15. The necessary medici- nes and hospital stores shall be purchased by the warden from time to time, as may be requisite, with the advice of a physician, and under the direction of the inspectors, <§. 16. The warden is also authorised to purchase raw materials, taking bills, whenever any supplies or necessaries shall be purchased. ^ 17. No inspector, warden, or ofiicer, or person employed at the penitentiary, shall be directly or indirectly interested in any contract, purchase or sale, on account of the penitentiar}', under the penalty of £lOO. to be recovered by action of debt, in any of his Majesty's courts in this province : to be applied, when recovered, to the use of the province. Sec. 18. The warden shall keep a regular and correct account of all monies received and paid, and deliver to the inspec- tors a monthly return thereof, upon oath, and stating the balance in hand. Sec. 19. The warden shall close his accounts annually, on or before the 1st day of October, and render to the governor a full account, to be laid before the legislature : also, an inventory of I s IMi' , 1. 34a mnittnmvn* the goodf , raw materiali , and other property of the province, on hand, exhibiting a complete detail of the transactions of tlie peni- tentiary, for the year, with an affidavit annexed of tlie warden and clerk, stating that the same are correct and true, in every respect, to the best of their knowledge and belief. Sec. 20. The warden shall, on or before the 15th October in every year, transmit to the inspectors a complete and connprehensive view of the transactions of the penitentiary during the., 'receding year ; of the number of convicts confined therein; the various branches of business in which they are employed ; the nuiZ-er employed in each branch; and the profits to the province, if any, arising therefrom. Sec 21. No perquisites or emoluments shall be taken by the officers of the establishment, except that the warden or deputy shall be provided with dwellings at cr near the penitentiary, and shall be furnished with fuel and candies, and servants from among the convicts. Sec. 22. The warden shall make an annual report to the governor, on or before the 1st day of October, of the convicts discharged in the preceding year, and the particulars. Sec. 23. In case of vacancy, the deputy warden shall fulfil the duties of warden, until such va- cancy be filled. Sec. 24. The physician of the penitentiary shall keep a register of the sick and deceased convicts, stating their name:., ages, and cause of death. Sec. 25. All books and pipers relating to the penitentiary, shall there remain. Sec. 26. The salary of the warden shall be JC200. per annum, and of the deputy warden JC150., and the other officers shall receive such remunera- tion as the inspectors, with the approbation of the governor, shall deem just. Sec. 27. The convicts, other than such as shall be confined in solitude, shall be kept to hard labour, except in case of sickness, and at night, singly in a cell, and also during the day time, when unemployed. Sec. 28. Their clothing aud bedding shall be of coarse materials, manufactured, when it can be done, in the penitentiary: they shall be supplied with a suflicient quan- tity of inferior and wholesome food, and each of them with a Bi'cle, at the expense of the province. Sec. 29. In case of any violent conduct by the convicts, the officers may use all suitable means to defend themselves and prevent escape. Sec. 30. The warden shall take charge of any property which any convict shall have, upon entering the penitentiaryt and shall preserve the same for his benefit, and pay the amount thereof to such convict when re- leased, or to his legal representative; and in case of death, if no legal representative shall appear within a year, the property shall be applied to the use of the province. Sec. 31. Upon (he dis- charge of any convict, by pardon or otherwise, the warden shall furnish him with necessary clothing, not exceeding £3. and a sum of money not exceeding jGl. Sec. 32. Any person conveying i ] yetfttrs* '%% 349 ovince» on jf the peni- tvarden and ery respect, rhe warden nsmit to the iransactions number of business in ich branch ; n. Sec 21. [ficers of the be provided be furnished Qvicts. Sec* ;overnor, on arged in the of vacancy, alii such va- entiary shall stating their s and pipers ec. 26. The jf the deputy :h remunera- vernor, shall li as shall be cept in case iring the day aud bedding can be done, flicient quan- withaBitle, r any violent ible means to The warden ct shall have, the same for ivict when re- f death, if no sropcrly shall Jpon the dis- warden shall 13. and a sum on conveying letters to or from any convict without the consent of the warden, shall be guilty of a misdemeanor. Sec. 33. The following per* sons shall be authorised to visit the penitentiary at pleasure, viz.:— the lieutenant governor, the members of the legislature, the judges of the king's bench, and the attorney and solicitor generals, bul no others, except by permission of the warden, of under such re- gulations as the inspectors shall provide. Sec. 34. The officer in charge of any convict, shall deliver to the warden a certified copy of the sentence, and shall take a certificate of delivery, and incase, of escape, the warden shall take all proper measures for his appre-' hension, and he may ofier a reward, not exceeding £50, for the apprehension and delivery of such convict. Sec.. 35. No inqnest shall be held on the body of a deceased convict, unless requested by the warden or one of the inspectors; but the warden shall in all cases of death, from any other cause than ordinary sickness, call the coroner; and upon the death of any convict, unless the, body shall be removed by relatives within twenty-four hours for interment, the warden shall deliver the same, on demand, to the agent of the medical society of the district. Sec. 36. In case of any pestilence, or contagious disease breaking out among the con- victs or in the vicinity, the inspectors may caus^ the convicts to be. removed to some suitable place of security. Sec. 37. Contains a similar provision in case of fire. Sec. 38. It shall be the duty of the warden to receive and keep any convict until discharged by due course of law, the province supporting such convict, and pay- . ing the expenses attendant upon the execution of such sentences ^ except that the district in which conviction shall take place shall defray the expense of conveying such convict to the penitentiary. Sec. 39. In case any prisoner shall escape, or attempt to escape, h^ shall be liable to iVd like punishment as upon a committal under the authority of a court of Justice, and the officer shall be liable to the like penalties for any neglect or violation of duty in respect to t such prisoner, as if such prisoner had been coirmitted under the l like authority. Sec. 40. The warden and other persons employed in the penitentiary shall be exempt from serving' on juries, or in the militia, and from town or parish offices. Sec. 41. Spirituous or fermented liquors prohibited, without a written permit signed by the physician of the penitentiary. Sec. 42. The salaries of the officers shall be paid by the receiver general, in discharge of such warrants as may be issued by the governor. ^ Ills: PERJURY. Perjury, (from the latin, perjurium) is the crime of wilful false swearing to any matter of fact material to the issue or point in 950 Vftfnrtt. ;( m, .oi question, when a' lawjiil oath is administered to the partjf, in some judicial proceeding. 3 Intt. 164. ; 1 Haw. c. 69. <^ 1 ; 1 2\ R. 69. And it is an offence at common law. Subornation of perjury, is the offence of procuring another to take such a false oath, as constitutes perjury in the principal, and IS an offence under various statutes. It has been settled that ^usrice^ of the peace have no jurisdiction over perjury at common law. 2 Haw. c. 8. "^ 38. Saik. 406. 2 Stra, 1088. But under the statute of Elizabeth, they have, tl.is statute however only relates to the crime o{ subornutioni and from the difficulty attending prosecutions under it, is now seldom re- torted to. .M;f' ' f) di v|lii>diiiji Cf!J*>IOiV ifK /<.. ^' OfPajury at Common Law, ;.^ Mmm'^U .The perjury must be wilful, that is, the false oath must be taken deliberately and advisedly ; for, if it originated more from the weakness than the perverseness of the party ; as, if it be occasion- ed by surprise or inadvertency, or a mistake of the true meaning of the question; it will not then amount to voluntary and corrupt perjury. 1 Haw. 69. <^ 2. It has been said, that no oath shall amount to perjury, unless the fact deposed to be sworn absolutely and directly ; but this doctrine is now exploded, and the crime of perjury, it is agreed may be committed by a mnii who swears that he oelicves a fact to be true, which he niiist "know to be false. R.v. Pedley, 1 Leach, 327. Miller's case, 3 Wils. 427. 2 Bl. 881. The oath must hejalse; upon wliich head it has been observed, that it is not material whether the fact which is sworn be in itself true or false ; for, however the thing sworn may happen to prove agreeable to the truth, yet if it were not known to be so, at the time by him who swears to it, his offence is aliogelher as great as if it had been false. This position cannot be denied, if a witness wil- fully swears tliat he knows a thing to be true, which at the same time, he knows nothing of; and thus impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition, which any stranger might niuke as well as he. 1 Haw. c. 69. '^ 6. jper Lawrence, J. 6. T. li. 637. ; R. v. Edwards, 2 RurSS. 618. note (a) All false oaths taken before those who are any ways intrusted with the administration of justice, in 'relation to any matter legally pending before them, are properly perjuries. Therefore, all persons are indictable who wilfully forswear them- selves in diny judicial proceeding, depending before a court of law or equity, or any other court, whether the proceedings therein be of record or not; where an affidavit is made of any matters m/i/^c- rial in a cause, the party making it is indictable for perjury, al- Ibough the affidavit is never used to found any subsequent pro- Vfrftttfi* S51 S .lOflAOItl'.!* ceeding upon. R, v. fVhite, 1 M. ^ Jfcf. 271. ; A. r. HaiUy^ By. &f M, 94. i 1 C, Sf F. 258. ; and so is a false oath before a Justice of the peace, in any proceeding within the jurisdiction of the justice, in which he is authorised by law to administer an oath. 1 Haw, c. 09. sec. 3. or before a commissioner ui the court of K. B., duly authorised ; but in all private transactions between man and roan, no oath whatsoever, however false it may be, is punishable as perjury in a criminal prosecution, — such as a false oath taken by one upon making a bargain, that the thing sold is his own* Neither is the breach of a promissory oath within the legal defi- nition of perjury. Therefore, no public officer who neglects to perform the duties of his office, which he has previously sworn faithfully to discharge — however punishable he taay be for a mis- demeanor, and aggravated as his offence may be by the violation of his oath — is indictable for perjury. 2 Haw, c. 69. '^ 3. iSeither can a juror, who gives a verdict contrary to evidence, be prose- cuted for perjury. 1 Hnw. c. 69. ^ 5. The oath must be taken before some court or person legally authorised to administer an oath ; for no oath whatsoever, which is taken before persons not legally authorised, or competent to administer an oath, can amount io perjury in the eye of the law. 1 Haw. c. 69. "^ 4. The thing sworn must be material to the point in question ; for if it be wholly foreign from the purpose, or altogether immaterial, not tending to aggravate or extenuate the damages, nor likely to in- duce the jury to give a readier credit to the substantial part of the evidence, it cannot then amount to peijury ; because it is, in such case, merely idle and insignificant — as, if upon a trial, in which the question was whether A. was compos or not, a witness unnecessarily and impertinently describes a journey which he took to see the party, and happens to swear falsely in relation to some of the circumstances of the journey. 1 Haw. c. 69. ^ 8. But if the false oath has any tendency to prove or disprove the matter in issue, however circumstantially — as, if the party wilfully mis- take the colour of a man's coat, or speak falsely to the credit of another witness, — it will in like manner amount to perjury. Rex» V. Griebe, 12 Mod. 142. R. v. Muscat, 10 Mod. 195. With respect to subornation of peijury — if the person incited to take a false oath do not actually take it, the person by whom he was so incited is not guilty of subomadon of perjury; but he is, never- theless, liable to be punished as for a gross misdemeanor, in at- tempting to pervert the course of justice. 1 Haw. c. 69. >§ 10. 2. Of the o^encc by Statute. ^** IP By 5 Eliz. c. 9. (made perpetual by 29 Eliz, c. 5. sec. 2. and 21 Jac, 1. c. 28. sec. 8.) it is enacted by sec. 3. that every person 352 yerftttfi. I W i?* ^f ?ii I i who tball unlawfully niid corruptly procure uny widicss to commit •fiy willttl and corrupt peijury, in any matter or cause depending in suit and variance, shall forfeit JC40 ; or (by sec. 4.) if he Itatt not goods to that amount, shall suffer impriisonnicnt for half •* year, and stand upon the pillory for one hour, in some marke. town uext adjoining to the place where the offence w.is committed. By sec. 5. no person so convicted can afterwords be received as n witness hi any court of record, until the judgment be reversed. By tec. 6. any person, either, by subornation, unlawful procure- ment, sinister persuasion, or means of any others, or by his own act, consent or agreement, committing wilful and corrupt perjury, shall, upon conviction, forfeit £20, and be imprisoned G nionthii, and his oath not afterwards received in any court, until judgment reversed ; or if the offender has not goods, shall be set in the pillory, and have both his cars nailed, and be discredited and disabled for ever to be sworn in any court of record, until judg> roent shall be reversed. By sec. 9. the judges of any court, where the perjury is committed, and the justices of assize and gaol delivery, and justices of the peace, at their quarter sessions, I'Say inquire of, hear and determine, all offences against the act. And (by sec. 13.) the act is not to restrain the authority of any other judge having absolute power to punish perjury before the making of the statute, so that he set not upon the oflender less punishment than is contained in the act. The above statute of Elizabeth did not alter the nature of the offence at common law, but merely enlarged the punishment. It is, however, seldom resorted to in the present day, on account of the difTiculty of convicting under it ; for, in the first place, it has been held not to apply to any rase unless it can be shewn that there is a party grieved by the perjury, and that the perjury, also, was committed in a matter relating to tlie proof of what was in issue. 3 Salk. 270. Nor can a witness who gives fal.sc evidence for the crown be indicted under it ; for which a reason is given in the report, that does not appear to bo a very sound one, namely — because an indictment being the suit of the King, he cannot punish his own witness, who swears for him. J'rice's case, Cro. Jac. 120. The statute also extends to no other perjury than that of a witness ; therefore, perjury committed in an answer to a bill in chancery, or in swearing the peace against another, cannot be prosecuted under the statute. 1 Haw, c, 69. ^ 20. A false affidavit has been also held to be not within the statute. 1 Roll 79.; 2 Roll, ah, 77. ; 3 Keh. 345. ; 3 Salk. 269. But this appears to be too general a proposition ; for if the affidavit be of such a nature that either of the parties in variance be grieved, 39ftjttr2i. 353 hindered or noleited, in respect of their cnuie, by reaion of the perjury, the otlence then seems to be within the meaning, ai well 0.1 within tiie letter of the ttntuiu. 1 Jlaw. c. 69. '^ 21. I ' 8. Of other Statute* relating to the Offence. By the 23 O. 2. c. :i. Which professes to be passed for the laudable purpose of facilitating prosecutions for perjury — it ii enacted by sec. 3. that any jndge of assize or nisi prins, or general gaol delivery, while the court is sitting, or within 24 hours after- wards, may direct any person (examined as a witness upon any trial before him) to be prosecuted for the snid odence of perjury, in case there should appear to him reasonable cause for so doing, and to assign the prosecutor counsel, without fee or reward ; and such prosecution shall not be subject to any fees of court, &cc. By 7 ^ 8 IV, 3. c. 34. ; 8 C?. 1. c. G. ; and 22 G. 2. c. 46. The false affirmation or Jeclaraiion of any of the people called Quakers, is declared to incur the penalties of perjury ; and so, by several provincial statutes — 49 G. 3. c. 6. ; 10 G. 4. c. 1. &lc. By 12 G. 1. c. 29. % 4. If any person convicted of perjury, forgery, or common barratry, shall practise as on attorney, so- licitor or agent, the judges of the court shall examine the matter in a summary way, in open court, and may sentence the ofieuder to be transported for seven years. 4. Of the Indictment. An indictment for perjury at common law^ cannot be preferred at the quarter sessions; for by the comn^jn law, the sess^iom^ ha^ uo jurisdiction of perjury ; though it seems they have jurisdiction over it under the 5 Elizabeth c. 9. 2 Haw. c. 8. ^ 38. But as prosecutions under the statute are much more difficult than those at common law^ and are seldom adopted, even in the courts above, tbey are of course still less in use at the sessions. Besides the proceeding by indictment, the court before which any glaring offence of perjury is committed, has also the power to punish the offender in a summary way, as for a contempt. Of the Puniahment. Perjury is punishable at common law with fine, imprisonment, and pillory, at the discretion of the court ; and by statute 2G.2 c. 25. ^ 2.— made perpetual by G. 2. c. 18. — the judge may order the party to be transported, or to be imprisoned and kept to hard labour in the house of correction, for a term not exceeding 354 ^fiSfiiCc »m &nvfi(vu* 'A I seven yean. The false affirmation of a Quaker is punishable in the same manner. 22 O. 2. c. 46. ^ 36. ; and of other lecta- rians, such as meuonists, tunkers, &c. — by the 49 O, 2. c. 6. ; 10 O. 4. c. 1. Subornation of perjury is punishable by £40 fine,, six months imprisonment, and the pillory. 5 Eliz, c. 9. iflft* PHYSIC AND SUGRERY. By 8 G, 4. c. 3. It is enacted, that the practice of physic, surgery, or midwifery, for hire, gain, or hope of reward, by any person not duly licensed, or not being actually employed as a physician or surgeon in his Majesty's naval or military service, shall be a misdemeanor; and that upon the trial of any person charged with such misdemeanor, the proof of license, or the right to practise, shall lie upon the defendant. But no prosecution shall be com- menced after one year from the offence committed ; and no person convicted shall be imprisoned for more than six months, or fined above £25, Indictment for practising toithout being duly qualified. Home District, > The jurors for our lord the King, upon their ' to wit. 3 oath present, that A. A. late of the township of ■ in the home district, gentleman, being a person of a wicked mind and disposition, unlawfully, wickedly, and injurious- ly minding and intending to impose upon and deceive divers liege subjects of our lord the King, under the false colour and pretence that he the said A. iV., was well skilled in the art, calling, profes- sion' and practice of physic, surgery and midwifery, and that he was of sufficient knowledge and ability to undertake and practise the said profession or calling, and to execute and perform the duties of such art, profession and calling; and also unlawfully, wickedly and injuriously, going about, and causing and procuring himself, the said A. A., to be' engaged, retained and employed, by divers liege subjects of our said lord the King, in attempting to heal them of divers maladies, sores and diseases, wherewith the said liege subjects were affected, and in the delivery of preg- nant women, for large sums of money to be paid to him the said A. A. for such his pretended skill in the said art, practice, pro- fession or calling of a physician, surgeon and midwife, on the first day of May, in the tenth year of the reign of our sovereign lord George the fourth, by the grace of God, of the united king- dom of Great Britain and Ireland, King, defender of the faith, with force and arms, at the township of — aforesaid, in the home district aforesaid, unlawfully, wickedly and injuriouslyi did nishable in iher lecta- . 3. c. 6.; six iDontbt jic, surgery, any person a physician >, sliall be a :barged wilh \ to practise, lall be com- id no person ths, or finecl alifiid. r, upon their the township person of a ;nd injurious- e divers liege and pretence ing, profes- and that he and practise perform the ;o unlawfully, ind procuring nd employed, in attempting es, wherewith very of preg- him the said practice, pro- dwife, on the our sovereign e united king- r of the faith, ^resaid, in the ijuriously, did set up and practise the said art, profession and calling of a physician, surgeon and midwife, and from thence hitherto hath practised physic, surgery and midwifery, at the township afore- said, in the district aforesaid, for gain, hire, and hope of reward, he the ,^aid A. A. then and there not being a member of the medical board in this province, and not being licensed by any governor, lieutenant governor, or person administering the govern^ ment of this province, to practise physic, surgery or midwifery, in this province, and not having been licensed by any medical board in this province, and not being actually employed as a physician or surgeon in his Majesty's naval or military service, contrary to the form of the statute in such case made and provi- ded, to the evil example of all others in like case offending, and against the peace of our said lord the king, his crown and dignity. And ihe jurors aforesa. '\ upon their oath aforesaid, do fuKher pre- sent, that the said A. A. afterwards, to wit, on the first day of July, in the tenth year of the reign aforesaid, with force and arms, at the township aforesaid, in ' v district aforesaid, unlawfully, wick- edly and injuriously, did s^^ up and practise the art, profession and calling, of a physiciar and surgeon, and from the said first day of July, in the year aforesaid, to the first day of March, iu the eleventh }ear of the reign aforesaid, did practise physic and surgery, fot* hire, gain, and hope of reward, he the said A. A. then and there not being a member of the medical board of this province, and not being licensed to practise physic or surgery in this province, and not being actually employed as a physician or surgeon in his Majesty's military or naval service, contrary to the form of the statute in such case made and provided, to the evil and pernicious example of all others in the like case offending, and against the peace of our said lord the King, his crown and PIRACY. ■■:'•""! What acts amount to Piracy. . j. Where the subjects of the same state commit robbery upon each other upon the high seas, such acts of violence and depredation amount to piracy. And the same, if the subjects of difierent states, connected by ties of amity and friendship, commit robbery upon one another. 4 Inst. 154. But where states are at open war with each other, the plundering of an enemy is then not an act of piracy, but a mere act of hostility and lawful capture. So, if persons making a capture at sea do so by authority of any foreign prince or state, this also cannot be considered piracy. 350 39(viir&« '. .1, ■ Thus, even a capture by authority of the marauding itatei of Algiers, Tunis, or Tripoli, cannot be treated as piracy. Grot* 2. c. 18. ^ 2, Sir L. Jenk, 790. Formerly indeed, no subjects of the British empire were deemed pirates, if they acted under the commission of any foreign power ; but by the 11 ^ 12 fV, 3. €. 7. (which was levelled against commissions granted by James 2, after his abdication), it is enacted, that if any natural-born sub- jects or denizens of this kingdom shall commit any piracy or robbery, or any act of hostility against others of his Majesty's subjects, or states, on pretence of authority from any person what- soever, the offenders shall be deemed to be pirates, felons and robbers ; and being convicted under that act, or the 28 H. 8. c. 15. shall suffer capital punishment. In addition to this statute, the 18G. 2. c. 30. enacts, that all natural-born subjects or denizens, who during any war shall commit any hostiliiy upon the sea, or in any haven, river, creek or place, where the admiral has jurisdic- tion, agains; his Majesty's subjects, by virtue or under colour of any commission from any of the King's enemies, or shall be otherwise adherent or giving cid or comfort to his Majesty's enemies upon the sea, or where the admiralty has jurisdiction, may be trl: POST OFFICE. By the 4 O. 3. c. 24. ^8. If any person shall counterfeit the hand-writing of any person in the superscription, in order to avoid the payment of postage, he shall be guilty of felony, and be transported for seven years. By 5 G. 3. c. 25. ^ 19. If any person intrusted to take in let- ters, shall embezzle, or apply to his own use, any money by him received for postage, or shall destroy any letter so by him taken in, or shall not duly account for the money received by him for ad- vanced postage, he shall be deemed guilty of felony. By 5 G. 3. c. 25. § 17. If any person employed in the business of the post office shall secrete, embezzle, or destroy any letter or packet containing any bank note, bank post ^ill, ImII of exchange, exchequer bill, &ic., goldsmith's note for the payment of money or other bond, or warrant, bill, or promissory note for payment of )Poi9t ^mtt. 359 ig ofienderi ie 11 fy 12 road might on the sea ; , and other IS, piracies, offeDces, of or in any ried (accor- n, used for jesty's colo- ted of such rsons would udes the aid ' age, under jch as labor , or by jus- e a forcible contrary to :ie execution hen Vgally } relating to 7. and the interfeit the der to avoid iy» and be take in lel- >ney by him f him taken him for ad- the busines:; ny letter or >r exchange, It of money payment of money, or American provincial bill of credit ; or shall steal or take the same out of any letter or packet, he shall be guilty of felony. Sec. 18. If any person shall rob any mail, although the same shall not be a taking from the person, or in the highway, or in a dwelling-house, or out-house, and although no person was put in fear, he shall be guilty of felony. By T G. 3. c. 50. ^ i. If any deputy clerk, J^ent, letter car- rier, post boy or rider, or any other officer or person whatsoever, employed, or to be hereafter employed, in receiving, stamping, sorting, charging, carrying, conveying, or delivering letters or packets, or in any other business relating to the post office, shall secrete, embezzle, or destroy any letter or letters, packet or pack- ets, bag or mail of letters which he, she, or they shall or may be respectively entrusted with, or which shall have come to his, her, or their hands or possession, containing ^ny bank note, bank post bill, bill of exchange, exchequer bill, South Sea or East India bond, 8ic. fee, bank receipt for payment of any loan, Ameri- can provincial bill of credit, goldsmith's or banker's letter of credit or note, for or relating to the payment of money, or other bond, or warrant, draft, bill, or promissory note, whatsoever, for the pay- ment of money ; or shall steal and take out of any letter or packet that shall come to his, her, or their hands or possession, any such bank note, S:c., every such offender shall be deemed guilty of felony. Sec. 2. If any person or persons shall rob any mail or mails, in which letters are sent or conveyed by the post, of any letter, packet, bag, or mail of letters, or shall steal or take from or out of any such mail or bag, sent or conveyed by post, or from or out of any post office, or house, or place for the receipt or delivery of letters, any letter or packet, although such robbery, stealing, -or taking, shall not appear to be a taking from the person, or upon the King's highway, or to be a robbery committed in any dwell- ing-house, or out-house ; and although it should not appear that any person or persons were put in fear by such robbery, stealing or taking, yet such offijnder, upon conviction, shall be deemed guilty of felony. Sec. 3. If any person employed in the business of the post office shall receive the postage of any letter, and burn or destroy such letter, or shall advance the postage of any letter, and not duly account, he shall be guilty of felony. By the 3 JV. 4. c. 4., which detennines the number of cases in which capital punishment shall be inflicted, — it is enacted, that if any person shall rob any person carrying or conveying, or having charge of his Majesty's mail in any part of this pro- y : V i ill ■if id I ::i! 960 l9onii9 2lreacn« vince, of any letter or letters, packet or packeti, bag or mail of letters, every such ofiender being convicted thereof, shall suffer death, as a felon. Sec. 12. And accessories before the fact, shall also suffer death. Pot and Pearl Ashes.— See title "Flour." POUND BREACH. . 4 .r Found Breach is the forcibly breaking the pound, in which cattle or goods have been put after being lawfully distrained, for the purpose of rescuing them. It has been doubted whether this is an indictable oflenr^ , when unaccompanied by a breach of the peace. 4 Leon. 12. ; 3 Buri\ 1791. 1731. But as pound breach is considered a grruter offence, at common law, than even a res- cue of \he goods distrained, and is no doubt an injury and insult to pi^uiic justice, it seems to be equally indictable as such at com- mon law. Mirror c. 2. <^ 26. 2 Chit, c. 4. 204. Note (h.) it is w'ci) observed, however, that the civil remedy given by the sta- tute of 2 TV. S^ M. c. 5. '^ 4. will, in most cases of a pound breach, '■■: \ re cue of goods distrained for rem, be found the most desira- ble w: de of proceeding, where the offenders are responsible per- sons I Rhss. 3G3. For under the provisions of that statute, the parly grieved may, in a soecial action on the case, recover treble damages and costs against the offenders, or against the owner of the goods, if they come to his use. See Bradley on Distrestet, 282. 6 Bac. Ab. Rescue (c.) The punishment, upon a conviction by indictment for pound breach, is fine or imprisonment, or both. Indictment for Breaking Pound. (Chitty.) . District, > The jurors, k,c» that on, k.c. at, &c., one J. to wit. 3 ^* ^^^ ^"d distrained one mare and two colts, of the cattle of one J. S., lato of the township aforesaid, 3'eoman, of the price of twenty pounds, in and upon a certain close or par- cel of land, of him the said J. C, situate and being at he. afore- said, wrongfully feeding and depasturing upon the grass growing in and upon the said close and par 'el of land, and doing damage to him, the said J. C. there, a^ a distress for the damage then and there done and doing by the said cattle, a. J the said mare and colts so taken and distrainei, as aforesaid, he, the said J. C, on the same day and year aforesaid, at he. aforesaid, in the common pound of the said township of ■■ ■■, in the district aforesaid, im- pounded and kept, and detained the same In the said common pound, there as a distress, for the cause aforesaid, and the jurors, $ounti Wittt^tn. S01 &ic. do further present, that the said mare and colti, being lo im- pounded, and remaining in the the said common pound, there as a distress for the cause aforesaid, the said J. S. on he, aforesaid, with force and arms, at Sec. aforesaid, the said common pound, broiie and entered, and the said mare and colts from and out of the same, without the license, and against the will of the said J. C. and without any satisfaction having been made to the said J. C. for the said damage done by the said mare and colts, as aforesaid, unlawfully did rescue, take, lead, and drive away, in contempt of our lord the King and his laws, to the evil and pernicious exam- ple of ill others in the like case offending, and against the peac« of our said lord the Ring, his crown and dignity. POUND KEEPERS. By the 33 O. 3. c. 2. "^ 6. A pound keeper or pound keepers, (not exceeding 6, by the 11 G. 4. c. 7.) shall be elected at the annual town-meetings; and such pound keepers are authorised to impound all cattle, and every horse, sheep and hog trespassing on the lands of any person, having enclosed the same by a sufficient high fence, to be agreed on at the town-meeting: and also to impound any stoned horse, more than one year old, running at large upon the highways or commons, and to detain such horse until the owner shall pay 20^., one half to the person taking the horse, the other to the collector, for the public stock of the district. For penalty on refuaa'i to secure, &ic. see post ''Town Officers,** By 34 G. 3. c. 8. ^ 3. Pound keepers are required to impound any horned cattle, h')rse, sheep Or swine, found tresp.^ssing, until the damages are paid to the party on whose lands any damage may have been done, and the pound keepers fees, which fees sh&ll be regulated by the general quarter sessions. By the 43 G. 3. c. 10. "^ 2. The pound keeper, within forty- eight hours after distress impounded, shall affix a notice thereof, in writing, in three of the most conspicuous parts of the township, giving a description of such distress, and when and where intend- ed to be sold ; and if the owner shall not, within 15 days, redeem the same by paying the pound keeper's charges and the damages, at the pound, the pound keeper may sell and pay the same, re- turning '.he surplus to the owner. Sec. 3. And if the owner shall not appear, or shall dispute the amount claimed, any justice may summon three freeholderi to assess the damages, upon oath. By the 11 G. 4. c. 7. ^ 2. No distress shall be impounded out of the township, but shall be taken to the nearest pound. «««N)>' 3(52 9onnXf nttvf'cti. ri- ■ •'•'-■ 111 4 hi A "I U m ( ifi '^^ i it Notice by the Pound Keeper. Notice is hertby given, keeper of the tonnship of that I the undersigned A. B. pound — — — , in the ■ district, have D. of this day, at t'ue request of C. common pounc^ r^ilie said township of • in the said towns i|. cular marks he h scribing also th impounded in , situate at -~— the ^ one bay horse, he, describing also anyparti- '«e, and one brown and white cow, he, de- . more particularly if need 6e,] which were this day fo'ind trespassing upon the lands of the said C. D. in the said township, and unless the owner or owners thereof shall, within fifteen days from the date hereof, redeem the same at the aforesaid pound, by paying the damages sui:tained by the said C. D., hy reason of the said cattle so trespassing on his lands as aforesaid, and the charges of the pound keeper; I shall proceed to sell the same by public auction, on the day of next, in the market place of the said town of '—^— (or wherever else it may be expedient to effect such sale^) pursuant to the statute, ia such case made and provided. Witness my hand at ■ , in the said district, the — day of , 183 . ^ ^ A, B,t pound keeper* Warrant for the summons of three freeholders to assess the damages. District, > To the constable of the township of h to wit. ) in the said district : These are in his Majesty's name, to authorise and command you forthwith to summon and warn three able and sufficient persons, freeholders of the said township., to be and attend before me J. P. Esq. one of his Ma- jesty's justices of the peace, for the said ■ - district, on ihe — — — day of ■, at , in the said township, at the hour of in the forenoon of the same day, then and there upon oath, to assess the damages sustained by C. D. of , by reason of the trespassing of certain cattle, to wit. [^here describe the cattle,^ upon the lands of him, the said C. D., situate in the said township, on the — — day of , and which have been in consequence impounded at the common pound, situate at ' &.C., and be you there to certify what you have done herein, to- gether with this precept. Herein fail not. Given under my hand and seal at — — in the said district, the — — day of — — . ' ' " Jurors Oath. • You shall well and truly assess the damages, in a certain tres- pass of cattle complained of by C. D., and a true assessment make according to the evidence ; so help you God. PRCEMUNIRE. 36) The ofience of prcemunire was so called from the words of the writ issued preparatory to the prosecution thereof, ** PrcBmunire facias A. B. quod tunc sit coram nobis" &:c. the word being a barbarous corruption in the law Latin of the word proemoneri. This writ commanded that the defendant should be forewarned to appear to answer the contempt, with which he stood charged, it took its origin from the exorbitant power claimed, and exercised in England by the Pope, which, even in the former days of bigo- try and blind zeal, was too heavy for our ancestors to bear. The words prcBtnunire facias being thus used to command a citation of the party, have denominated in common speech, not only the writ, but the offence itself, of maintaining the papal power, by the name of prcemunire : and this was originally ranked as an offence, im- mediately against the King, because it consisted in introdjcing a foreign power into the land, and creating an imperium in impe- rioj by paying that obedience to papal process which constitution- ally belonged to the King alone. 4 Bl, Com. 103. By the statute 16 Ric. 2. c. 5. which is usually called the sta- tute of prcemunire, and is generally referred to by all subsequent statutes — it is enacted, that whoever procures at Rome, or else- where, any translations, processes, excommunications, bulls, in- struments or other thingf] which touch the King, against him, his crown and realm, and all persons aiding therein, shall be put out of the King's protection, their lands and goods be forfeited to the King's use, and they shall be attached by their bodies to answer to their King and his crown; a process of prceimtnire facias shall be made out against them, as in other cases of provisors. By these, says Sir W. Blackstone, the usurped civil power of the bishop of Rome was pretty well broken down, as his usurped religious power was, in about a century afterwards, the spirit of the nation being so much raised against foreigners, that in the reign of H. V. the alien priorieg, or abbies for foreign monks, were sup- pressed, and their lands given to the crown, and no further at- tempts were afterwards made in support of these foreign jurisdic tions. 4 Bl. Com. 112. After the r<>rormation, the penalties of prwmunire were extend- ed to mere papal abuses. Thus, by 24 H. 8. c. 12. and 25 H, 8. c. 19. 21., to appeal to Rome from any of the King's courts ; to sue to Rome for any license or dispensation ; or to obey any process from thence, are made liable to the pains of prcemunire. By 5 Eliz. c. 1. To refuse the oath of supremacy, incurs the pains of prcemunire ; and to defend the pope's jurisdiction in this realm, in also a prcemunire for the first offence, and high trea- son for the second* 964 ^ta^ntrntnt, $ct. If Thus far the penalties of prcBmunire seem to have kept within the proper bounds of their original institution, namely, the de- pressing the power of the pope ; but being pains of no inconsid- erable consequence, it has been thought fit to apply them to other heinous offences, some of which bear more and some less relation to this original oHence, and some no relation at all. 4 Bl. Com. IIG. By the 13 Car. 2. c. I. It is also declared a proemunire to assert maliciously and advisedly, by speaking or writing, that boii; or either of the houses of parliament have a legislative authority without the King. By the habeas corpus act, 31 Car, 2. c. 2. it is made n proemunire and incapable of the King's pardon, to send any subject of this realm to parts beyond the seas. By 7 and 8 W. 3. c. 24. Serjeants, counsellors, proctors, attornics, and all oflicers of courts, procli^iiig without having taken the oath of alle- giance and supremacy, and without having subscribed the decla- ration against popery, are guilty of a proemunire, whether the oaths be tendered or not. But these provisions are now modified by the 3 W. 4. 3. 13. See ante title "Oaths of Office," p. 336. By the 6 Ann^ c, 7. To assert that any person, other than according to the acts of settlement and union, hath any right to the throne of these kingdoms ; or that the king and parliament cannot make laws to limit tlie descent of the crown, is likewise declared a proemunire. Numerous as the statutes are on thii £ubject, prosecutions for this ofience have been seldom instituted. i' riiESENTMENT. A PRESENTME.^T gcneraUy taken is a very comprehensive term ; including not only piese.MmentSt properly so called, but also all inquisitions of ofiice, and indictments by a grand jury. But a presentment, as commonly understood, is the notice taken by a grand jury of any oii'ence from their own knowledge or observa- tion, without any bill of indictment laid before them at the suit of the King. As the presentment of a nuisance, a libel, and the like ; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer for it. 2 Inst, 739. See further on thia subject ante title " grand jury." p. 189. . .^ ^ PRISON BREAKING. Prison breaking is the ofience of a party, who is in legal cus- tody upon any charge, effecting his own escape by force. This, by th« common law, was anciently accounted f*loni/t for what- !'i; 1C 9rt0on(r« 065 >seculioD8 for ) the meaning ind the party ig aidicted, then cyer cauie^ criminal or civil, the party was lawAilly Imprisoned. But by 1 Edw. 2. afat, 2. It is declared that none that should from thenceforlh breuk prison ohould have judgment of life or member for breaking of prison only ; except the cause for which he was taken and imprisoned required such a judgment if he had been convict thereupon, according to the law and custom of the realm. Therefore, although, to break prison and escape, when lawfully committed, for any treason or ftlonj/, still remains felony as at common law, the breaking of prison when lawfully confined upon any inferior charge, is punishable only as a high misdemea- nor, by fine and imprisonment. 4 Bl. Com. 130. In whatever place a person is restrained of his liberty under a lawful arrest for a supposed crime, whether it be in the stocks or the street, or in the common gaol, or the lio' ^ a constable or private person, such place is properly a pri of the statute. 2 Inst. 589. llatv. c. 18. But if no felony whatever has been con is merely in custody on a mittimus^ without he is not guilty within the statute, by breaking the prison, hit imprisonment being, in this instance, unjustifiable. There must be an actual, and not merely a constructive break- ing, to make the oflfence felony. Therefore, if through the negli- gence of the gaoler, the prison doors are left open, and the party escapes without using any kind of force or violence, he is only guilty of a misdemeanor. 2 Inst. 590. 1 Ilalct 611. The breaking must be by the prisoner himself, or by his procurement; for if other persons, without his privity or consent, break the pri- son, and he escape through the breach so made, he cannot be indicted for the breaking, but only for the escape. 2 Haw. c. 18. <^ 10. But no breach of prison will amount to felony, unless the prisoner actually escape. 2 Haw, c, 18. <^ 12. 2 Imt, 690. llfo/c, 611. PRISONER. ' : If the gaoler keep the prisoner more strictly than he ought of right, whereof the prisoner dieth, this is felony in the gaoler, by the common law ; and this is the cause, that if a prisoner die in gaol, the coroner ought to hold an inquest. 3 Inst. 91. Money found upon a prisoner when he is apprehended, will, in general, be directed to be restored to him before trial, if it appear by the depositions that it is in no way material to the charge on which he is tried. It. v. Barnett. 3 C. ^ P. 600. It is a fettled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upoa the general issue in any capital IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^ 1.1 1.25 ttitTi |25 ■^ 1^ |2.2 S 144 ■■ - lis |2£ U 11.6 Sh '9 ^ Photographic Sciences Corporation 23 WIST MA( J STiliT WItSTIR.N.Y. UStO (716) t7a-4S03 <^>^ '^ it 906 ilr(|c JfinfliUnn, ^t. crime, unlets tome point of law shall arise, proper to be debated, a rule which, as Sir W. Blackstone observes, (however, it may be palliated under cover of that noble declaration of the law, when rightly understood,.that the judge shall be counsel for the prisoner) teems to be not at all of n piece with the rest of the humane treat- ment of prisoners by the English law. 4 BL Com. p. 355. And the judges themselves are so sensible of this defect, that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him in matters of fact. lb. p. 356. In cases of felony, a copy of the indictment cannot be re- gularly obtained without an order of court: but in cases of mis- demeanor, the defendant is entitled to a copy of the record as a matter of right, without application to the court. 1 Bl. rep. 385. In treason, however, the prisoner is entitled to a copy of the indictment. PRIZE FIGHTING. All persons present at, and countenancing a prize fighting, are guilty in law of a misdemeanor. And when such a fight is ex- pected to take place, a magistrate ought to cause the inte ided combatants to be brought before him, and compel them to find sureties to keep the peace till the assizes or sessions ; and if they refute to do so, he should then commit them till they comply with such requisition. R. v. Billingham, 2 C. ^ P. 234. PROBATE. : I . ^ . Of the office and duty of Ezeeutors. An executor, before the will be proved, may seize and take into his hands any of the goods of the testator. He may pay debts, receive debts, make acquittances and releases of debts due to the testator, and take releases and acquittances of debts owing by the testator. Also, an executor may, before probate, sell or give away any of the goods or chattels of the testator : and in general, an executor is a complete executor before probate, to all purposes but bringing of actions. 1 Salk* 301. Went, off. Ex, 34. 35. Lovelass on Wills, 258. 259. The executor may, in convenient time after the testator*s death, enter into the house descended to the heir, for the removing and taking away of goods, so as the door be open, or at least the key be in the door : but he cannot justify the breaking open the door of any chamber to take goods there ; but only may take those in the rooms which be open. Lovelass on Wills, 260. Of tht ojlci and dutiet of an Administrator, W7 An administrator cannot act before letters of administration are granted to liim. Lovelass on Wills, By stat. 31 Edw. 3. c. 11 If 21, H, 8. c» B, ^ 3. In case any person die intestate, or the executors refuse to prove the testament, administration shall be granted to the widow or next of kin, or to both, taking surety for true administration. By 22 &£ 28 Car, 2, c, 10. made perpetual by 1 Jac, 2, c. 17. It is enacted, that the surplusage of an intestate's estate shall be distributed : — one third to the wife of the intestate, the residue amongst his children and such as legally represent them, if any be dead, other than such children (not heirs at law) who shall have any estate by settlement of the intestate in his life time, equal to the other shares. Children, other than heirs at law, advanced by settlements, or portions, not equal to other shares, shall have so much of the surplusage as shall make the estate of all to be equal. But the heir at law shall have an equal part in the distribution with the other children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. ^ 4. If there be no children, nor legal representatives of them, one moiety shall be allotted to the wife, the residue equally to the next of kindred to the intestatei in equal degree, and those who repre- sent them. ^ 5. No representation shall be admitted among collaterals, after brothers and sisters children ; and if there be no wife, all shall be distributed among the children ; and if no child, to the next of kin to the intestate in equal degree, and their representatives. <^ 6. No such distribution shall be made till one year after the intes- tate's death, and every one to whom any shares shall be allotted, shall give bond with sureties in the said courts, that if debts after- wards appear, he shall refund his rateable part thereof, and of the administrators charges. ^7. A brother or sister of the half blood shall have an equal share with those of the whole blood. Com, Dig. Adm. (H.) If none of the kindred will take out administratiou, a creditor mayi by efistom, do it. Lovelass on WillSf p. 7. ^ OftheWill, No witnesses are absolutely necess&ry to render valid a will of merely personal property : but with respect to a will of real or landed property^ until lately, three witnesses were necessary ; and now by the 4 fF. 4. c. 1. ^ 51. two witnesses are sufficient. 966 3lr^tote* 11 m ProbaU of th« Wilt, hotc granted, 4*<> By itat. S3 O, 3. c. 8. A court is constituted and established for the granting of probates of wills, and committing letters of administration of the goods of persons dying intestate, to be called the court of probate of the province of Upper Canada ; tlie gover- nor to preside therein and pronounce judgment in all suits that may be brought before him, With power to call in an assessor or assessors to act with him, and from time to time to appoint an official principal, registrar, and other necessary officers. By ^ 2. The governor is authorised to institute, by commission, under the great seal, in every district, a court for granting pro- bate of wills and letters of administration of persons having per- sonal estate within such district, to be called the surrogate court of the Eastern district; the surrogate court of the Midland dis- trict ; the surrogate court of tlie Western district ; and also to appoint from time to time, a surrogate to preside as judge in each of the said courts, and a registrar, and such other officers as may be necessary ; and each of the said courts shall have full power to issue process and hold a cognizance of all matters relative to the granting of probate of wills and letters of administration, and to grant same within their respective districts, except as hereinafter mentioned. ^ 3* In cases where the deceased shall have goods, chattels or credits, to the amount of £5, in any other district than the one in which he died ; or when any person shall die, possessed of goods to the value of £5 in two or more districts, the probate or letters of administration shall be granted by the court of probate only. By ^ 6. Every will duly proved, shall be kept among^the records of said court; and a transcript thereof duly authenticated under seal of the court, shall be taken and received as the regular probate of such will, in all his Majesty's courts within this pro- vince. By ^ 7. No nuncupative will shall be good where the estate thereby bequeathed, shall exceed j£30, x is not proved by three witnesses, at the least, present at the .king thereof ; nor unless the testator bid the persons present bear witness ; nor unless made at the last sickness of the deceased, and in his dwell- ing-house, or where he had been resident ten days before making luch will, except when such person was taken sick being from home, and died before he returned. ^ 8. After six months from the speaking of such testamentary words, no nuncupative will shall be good, except the substance thereof were committed to writing, within six days after the making such will. ^ 9. No probate •ball be granted till fourteen days after the death of the testator ; nor shall any nuncupative will be at any time received, unless the widow or next of kin have been cited. ^ 10. Nor until due proof li. yrotwtr* 369 be made before the said judge t>r surrogate, that such person is dead( and died intestate. ^15. In cases where administration shall be granted with the will annexed, such letters shall express that such will shall be observed and performed, and for such pur- pose the administrator shall enter into bond with two or more sufficient sureties. ^ 17. The court of probate and court of sur- rogate respectively, shall hold four sittings or terms for hearing and determining actions, suits and causes, he. viz : The first term from the first Monday in January to the Saturday following, in- clusive : the second term, from the last Monday in Marchj to the Saturday following, inclusive : the third term, from the first Mon- day in JunCf to the Saturday following, inclusive ; and the fourth term, from the last Monday in September^ to the Saturday follow- ing, inclusive. Sec. 18. The following fees may be taken : Feet to he taken by the Official Principnl and Surrogate. OrriCIAI. PRINCIVAL AND SURROGATE. For seal to the probate of a will, to letters of ad- administration with tho will annexed, and to let- ters of administration, where the property de- volving is under £300, FromSOO to £1000, When above £2000,... For seal of the court to any writing or instrument,.. For receiving caveat, For filing the same,.... For receiving inventory, For filing the same, For citation, For collating will, For drawing bond and ai.testing execution,. ........ For searching register, each year,. For office copy, each page 18 lines, words in each, AFPARATOR OR MCBSENOER. For service of citation,. For travelling, each mile,, , , £ s. D. 16 1 2 13 4 6 8 6 8 3 4 RB013TER. £ 9. D. 6 8 6 6 6 8 3 3 3 4 10 6 8 6 8 I 1 4 4 9, 4 Letters of Administratiorit how granted^ 6^c, By same stat. 33 6r. 3. c. 8. <^ 11. when application is made for letters of administration by any person, not entitled as next of kiii to the intestate, the court, before granting the same, shall issue a citation to the next of kin, summoning him or her to appear and shew cause against the same, and in case the next of kin should happen to be absent from the province, the court may then grant administration j)ro tern, to (he ueit of kin in the province. ^ 12. a2 i; ,,.*«l!W9*' 370 VrolNitr* m w m> ' vr The judge or lurrogate, upon granting letters of administration, shall take sufficient bonds from the party, with two sureties, in the name of the governor, according to the form prescribed. Form of the condition of the Bond, -W^' ' ** The condition of this obligation is such, that if the within bounden A. B. administrator of all and singular the goods, chat- tels and credits of C. D. deceased, do mnke or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come into the hands, possession or knowledge of him, the said A. B. or into the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited into the registry of court, on or before the — — — day of next ensuing, and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased, at the time of his or her death, which at any time after shall come into the hands or possession of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly administer according to law, and further do make or cause to be made, a true and just account of his said administration, at or before the ■ day of ■, and all the rest and residue of the said goods, chattels and ck'edits, which shall be found re- maining upon the said administrator's account, the same being first examined and allowed by the judge of the court, for the time be- ing, shall deliver and pay unto such person or persons respectively, as the said judge by his decree or sentence, conformably to the provisions in a certain act of parliament, intituled, ** An Act for the better settling intestate estates," and passed in the twenty- second and twenty-third year of the reign of Charles 2, and also in a certain act passed in the first year of king James 2, contain- ed, shall limit and appoint, and if it shall hereafter appear, that any last will or testament was made by the deceased, and the ex- ecutor or executors therein named do exhibit the same unto the said court, making request to have it allowed and approved ac- cordingly, if the said A. B. within bounden, being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first bad and made) in the said court, then this obligation to be void and of none efiect, or else to remain in full force and virtue." Sec. 13. It shall be lawful for the said judge of probate and surrogate respectively to call by citation such administrators to account, and to order and make just and equal distribution of what remains clear, after all debts, funeral and just expenses of \M v» "N. yroHAtr, 371 every iort first allowed, according to the provisions o<^ the said statutes (22. 23. C. 2. 4- 1. J. 2.) But no such distribution shall be made until one 3'ear ai)er the intestate's death, and every one participating in such distribution shall give bond lo refund iii case any debts shall afterwards appear. ^ 16. An appeal shall be from the surrogate court to the court of probate, if mtnl« within ^/teen days after the judgment appealed from, and security gv^en for prosecuting such appeal. Of the payment of Debts, S^*c, In payment of debts, the executor or administrator must observe the rules of priority ; otherwise, on deficiency of assetts, if he pays those of lower degree first, he must answer those of a higher out of his own estate. 2 Bl, Com. 511. — Firsts The executor, &c. may pay all funeral charges and the expence of taking letters of administration. — Ibid, — Secondly^ Debts due to the king, on record or specialty. — Thirdly., Debts of record are to be paid, as judgments, (docketted according to the stats, W, if M, c. 20.) and of two judgments, he who first sues execution must be prefer- red ; but before, it is at the election of the executor or administra- tor to pay which he pleases first. 2 Bl, Com, 465. 511. Treat. of Eq, 112. — Fourthly f Debts by specialty or special contract, such as are due by deed or special instrument under seal, covenant, deed of sale, lease reserving rent, or by bond or obiiga- tion ; 2 JBl, Com, 465. 511. and rent in arrear is equal to a debt by specialty. 3 Bl, Com, 341. 347. — Lastly ^ Debts by simple contract, such as notes of hand, and debts of an ordinary descrip- tion, not under seal^ and these the executor is bound to pay as far as he hath assetts, and if no suit be commenced against him, he may pay one creditor in equal degree his whole debt, though he has nothing left for the rest. Bl. Com. 512. But as to debts of record, the executor is bound to take notice of these at his peril. But as to debts due by bond or other specialties, an executor may pay a debt on simple contract before a specialty, if he hath no notice of such specialty ; for otherwise, it might be in the power of the obligee to ruin the executor by keeping the bond in his pocket, until the executor shall have paid away all the assetts in discharging simple contract debts. 2 New, Abr, 435. In payment of bonds and other obligations after due notice, it seems that the executor may (in like manner as respecting debts of record) pay which creditor he thinks fit first, although the other creditors are without remedy if there be no assetts ; unless the day of payment in one obligation is expired, and the day of payment in the other is yet to come, in which case, the former is •'V,. 372 )9rotii0f(n0» Ut. to be first satisfied ; or unless, there be suit commenced. But an executor may confess judgment on one obligation, and plead that to an action brought on another,— 'and if there be two actions brought on two several obligations, he that obtains judgment first must be first satisfied. Lovelass on Willst 73. 74. 75. An ex- ecutor or administrator, if a creditor also, may pay himself the whole of his demand, to the exclusion of all other creditors of the same degree ; but he cannot retain his own debt in prejudice to those of a higher degree ; neither shall one executor be allow- ed to retain his own debt in prejudice to that of his co-executor, in equal degree ; but both shall be discharged in proportion. 3 BL Com, 18. PROVISIONS. Selling unwholesome provisions, is an indictable ofience at common law, and so is the forestalling, engrossing or regrating of provisions, whereby the price is enhanced. See further on this subject, title " Forestalling," p. 191. PUBLIC WORSHIP. By the 4 W, 4. c. 4. ^ 5. If any person shnll wilfully disturb, in- terrupt or disquiet any assemblage of people, met for religious worship, by profane discourse, by rude and indecent behaviour, or by making a noise, either within the place of worship, or so near it as to disturb the order and solemnity of the meeting, such person shall, upon conviction, before any justice of the peace, on the oath of one or more credible witnesses, forfeit and pay any sum not exceeding £5, as such justice shall think fit. ^ 7. To be levied with the costs within the period specified for payment thereof, at the time of conviction by the justice before whom such conviction may have taken place, and in default thereof, the offender shall be committed for any term, not exceeding one month, unlese the costs and fine shall be sooner paid. For further on this subject, and for the form of conviction, see post " Summary Punishment." ^4 Im PUNISHMENT. By siat, 3. W. 4. c. 4. ^ 35. It is enacted, that all persons con- victed of any offence, which, before the passing of this act, was punishable in this Province with death, with or without benefit of clergy, shall be liable to be banished, or to be transported beyond the seas for life, or for such term, not less than seven years, as the laualkerd, tec 373 court before which such person shall be convicted} shall adjudge or sh^ll be liable in case such court shall think fit, to be impriion- ed only, or imprisoned and kept to hard labour, or in solitary confinement in the common gaol, or in any penitentiary, or house of correction that may be provided for such purposes, for any term not exceeding fourteen years, except persons convicted of re- turning from transportation or banishment, with respect to whom the term of imprisonment, with or without hard labour, or by solitary confinement, may, in the discretion of the court, be ex- tended to the term of his natural life ; and in case of manslaughter, the ofiender shall be liable to be fined or imprisoned, or both, in the discretion of the court, such imprisonment not exceeding 12 calendar months. ^ 26. And if any person shall be convicted of forgery, or uttering any forged deed, will, instrument, note, bill, or writing, or of falsely personating any person, either of which ofiences was before the passing of this act punishable with death, the court may adjudge such person (except females) to be set in the pillory once or ofltener, or to be once or oftener publicly or privately whipped, either in addition to any other punishment by law, or otherwise, as the court may think proper. QUAKERS. By 49. G, 9. 6. It is enacted, that every Menonist or Tunker, in any case in which an oath is required by law, or upon any law- ful occasion wherein the ufiirmation or declaration of a Quaker, will by law be admitted, shall be and is hereby permitted to make his or her aflirmation or declaration in the same manner and form as a Quaker by the laws now in force is required to do, having first made the following affirmation or declaration : " I, A. B. do solemnly, sincerely and truly affirm r;>tj declare, that I am one of the Society of Tunkers or Menonist*,''' [as the case may be"] — which affirmation or declaration shall be of the same force and effect in all courts of justice, and other places where by law an oath is required, as if such Menonist or Tunker had taken an oath in the usual form ; and all persons authorised to adminis- ter an oath, may administer such affirmation or declaration. ^ 2. Any person making a false affi;mation or declaration, shall incur the pains and penalties of perjury. ^ 3. No Menonist or Quaker shall by virtue of this act, be qualified to give evidence or serve on juries in criminal cases, or hold or enjoy any office under go- vernment. By 10. G. 4. c. 1. Quakers, Mcnonists, Tunkers and Moravians are admitted to give evidence on criminal cases, upon making an affirmation in the following form in lieu of any oath : ♦•J, A. B. do solemnly, sincerely and truly declare, that I am S74 lUl|lf< one of the Society called Quftkeri, Menoniitf , Tuiikeri or Uuiim Fratrum or Moravians/' \as the cate may ^e]<— and any person convicted of a fuUe affirmation, shall incur the pains and penalties of perjury ; but such persons shall not be permitted to serve on juries in criminal cases. RAPE. 1. Of Rape in general. RapEi signifies the carnal knowledge of a woman, forcibly and against her will, and above the age of ten years, and was felony at common law. 2 Inst 180. But by statute 3 Edto, 1. c. 13. It was made only a misdemeanor ; afterwards by ttaU 13 Edw, 1. c. 34. It was made felcny again ; and by statute 18 Eliz, c, 7. % !• was made capital. By ^ 4. of the latter statute, it is also enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, every such unlawful and carnal know- ledge shall be felony. In which case, the consent, or non-consent is immaterial ; as by reason of her tender years, she is incapable of judgment and discretion. 4 BL 212. The offence of rape is nu way mitigated by shewing that the woman at lastyielded to the violence, if such her consent was forced, by fear of death or of duress. 1 Haxo, 108. Nor is it any excuse that the woman is a common prostitute ; for she is still under the protection of the law, and may not be enforced, 1 Haw, 108. ; nor that she consent after the fact. Ibid* It is said by Mr. Dalton, that if a woman, at the time of the supposed rape, do conceive with child, by the ravishe'r, this is no rape ; for (he says) a woman cannot conceive, except she doth consent ; but Hawkins observes, that this opinion seems very questionable ; not only because the previous violence is no way extenuated by such a subsequest con- sent, but also, because if it were necessary to shew that the woman did not conceive, the offender could not be tried till such time as it might appear whether she did or not ; and likewise, because the philosophy of the notion may be very well doubted of. 1 Haw, 108. : and L. Hale says, this opinion in Dalton seems to be do law. lH.If.731. •^ Evidence on Rape, Lord Coke, defining carnal knowledge, says, there must be penetratiOf that is, rem in re; but the least penetration maketh it carnal knowledge. 3 Inat. 59, 60. East, P, C. 437. There must also be an emissio seminis; therefore in HHV$ castt where the jury found the prisoner guilty, but said they did not find the emis- ii«9r« 375 o serve on fion, [ibr, from interruption, it appeared probable tliat that wai not efiected,] a great majority of the judges held that both pene- tration and cmiiiion were necetiary. but thought that the fact should be leA to the jury. HilVt case, Eait, P, C. 439. From Hill's case, it appears that the fact of penetration is prima fade evidence of emission : so, where the prisoner remained on the body of the woman as long as he pleased, without interruption, this was held sufficient evidence to be left to a jury, of an actual rape. Uarmwood's ca«e, E, P, C. 440. iS>. F. Kelly*s case, Bodmin, 1615, coram Chambre. Where the woman was dead, the evidence of other persons and her own depositions, (which contained no mention of emission,) were held sufficient to convict the prisoners ; and that the jury might collect the fact of emission from other evi- dence. Fleming and Windham's case, 2 Leach, 855. The party ravished, may give evidence on oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury, and is more or less credible, according to the circumstances of fact that occur in the testimony. 1 H, H, 632. For instance, if the witness be of good fame ; if she presently discovered the offence and made pur- suit after the offender ; shewed circumstances and signs of the injury ; if the place where the offence was committed, was remote from habitation ; if the offender fled for it; these, and the like, are concurring evidences to give greater probability to her testimonv, when proved by others as well as herself. 1 H, H, 633. On the other hand, if she concealed the injury for any length of time, af- ter she had the opportunity to Jbmplain ; if the place where the offence was alleged to have been committed were near to inhabitants, or a thoroughfare for passengers, and she made no outcry when the offence was perpetrated, so that she might have been heard by oth- ers; or if a man prove himself to be in another place; or in other company at the time she charges him with the fact ; or if she is wrong in the description of the place, or swears the fact to have been done in a place where it was impossible the man could have access to her at that time, as if the room was locked up, and the key in the custody of another person ; these, and the like circumstances, carry a strong presumption, that the testimony is false or feigned. 1 H» H. 633. Upon the whole, rape, it is true, is a most detestable crime, and therefore ought severely and impartially to be punished with death; but, it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent : therefore, a wise jury will be cautious upon trials of offences of this nature, that they be not so much transported with indignation at the heinousness of the offence, as to be over-hastily carried to the conviction of the per- .,««ww*' h 376 Hanr. ion accuied thereof, by the confident testimony, lometimei of ma- licioui and false witnesses. 1 H. H, 635, 036. A male infant, under the age of fourteen years, is presumed, by law, to be incapable to commit a rape, and therefore, it seemSi cannot be found guilty of it. 4 Bl. 212. 1 Hal, P. C. 631. ' ' < Puniihment for Rapt, * ■ - By the 3 fV, 4. c. 4. ^ S'. It is enacted that every person, con- victed of the crime of rape, shall suffer death as a felon. ^ 6. And that if any person shall unlawfully carnally know and abuse any girl, under the age of ten years, every such offender shall also suffer death as a felon. •1 ii. Information. J ♦ [The common form of the commencement of an information will be found, ante p. 265.] It should state when, where, and by whom the offence was perpetrated ; that the complainant resisted the force and violence, and called aloud for assistance ; and that she immediately acquainted her neighbors and friends with the occurrence, (as the case may be.) The depositions of other wit- nesses should also be taken, to confirm the testimony of the com- plainant. 1 ■ . Warrant to Apprehend the Party. Home District, > To the constable of the township of — — -> and to wit. ) all other peace oflicers in the said district :— Forasmuch as A. B. of , in the district aforesaid, laborer, hath this day been charged before me, J. P. Esq. one of his Ma- jesty's justices of the peace for the said district, on the oath of C. D. of the township of , in the said district, single woman, (or othertoiset as the case may bCf) for that he, the said A. B., on the — — day of , violently and feloniously did assault her, the said C. D., and her, the said C. D., then and there violently and against her will, feloniously did ravish and carnally know : These are, therefore, to command you, in his Majesty's name, forthwith to apprehend and bring before me, or some other of his Majesty's justices of the peace, in and for the said district, the body of the said A. B. to answer uut>:) the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, at , in the district aforesaid, the — — — day of — — , in the year of our Lord 183 . KeceflirnDi of Jblolrn €;oo90. - Commitment for a Rape. 377 Home Diitrict, ) J. P. Esquire, one of hit Maje«ly*s juiticet of to wit. > the peace, for the said diitrict : to the consta- ble of the township of ■, in the said district, and to the keeper of the common gaol at Toronto, in tlie said disnict : tliese are to command you, the said constable, in his Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol, the body of A. B. charged this day before me, the said justice, on the oath of C. D. of ■, for that he, the said A. B. on the — — day of , in the year of our Lord one thou- sand eight hundred and - " ', at ■ in the said district, violently and feloniously did assault her, the said C. D., and her, the said C. D., then and there violently and feloniously and against her will, feloniously did ravish and carnally know ; against the form of the statute in that case made and provided ; and you, the said keeper, are hereby required to receive the said A. B. into your custody, in the same common gaol, and him there safely to keep, until he "? shall be thence delivered by due course of law. Herein fail not. Given under my hand and seal the ■■ day of — ^ Commitment for carnally knowing a Girl under ten years. Commsncement as before.'] on the ■ day of , in the year of our Lord one'tliousand eight hundred and , at in (lie said district, feloniously did assault one C. D. a girl under the age of ten years, to wit, of the age of nine years, and her, the said C. D., then and there feloniously did unlawfully and carnally know and abuse ; against the form of the statute in that case made and provided ; and you, the said keeper, &(c. (As before^ to the end.) • '» . i ■' ■ RECEIVERS OF STOLEN GOODS. By the 3. W» c, 9. <§ 4. If any person shall buy or receive any stolen goods, knowing the same to be stolen ; he shall be deemed an accessory after the fact. And by the 5. An. c. 31. ^ 5. If any person shall buy or receive any stolen goods, knowing them to be stolen, or shall receive, harbour or conceal any felons or thieves, knowing them to be so, he shall be deemed an accessory. And by the 4. G. c. 11. "^ 1. Persons convicted of receiving or buying stolen goods, knowing them to be stolen, may be transport- ed for 14 years. And notwithstanding that regularly the acces- sory cannot be tried, till the principal be convicted, yet by the 5 An. c. 31. '§>. G. It is enacted, that if the principal felon cannot be taken ?n as to be prosecute! and convicted, yet neverlhclcts the ..^^WSW*^ 378 Untt^va of Atolen dmnttt. 1 m :|l iiiii I IH il I buyer and receiver of stolen goods may be prosecuted as for a misdemeanor^ and punished by fine and imprisonment or other such corporal punishment as the court shall think fit ; which shall exempt him from being punished as accessory, if the principal shall be afterwards taken and convicted. By the 29 G. 2. c. 30. ^ 1. It is enacted as follows : whereas, the pernicious practice of stealing lead, iron, copper, brass, bell-metal and solder fixed to or lying or being in or upon houses, out-houses, mills, ware-houses, work-shops and other buildings, areas, vaults, yards, gardens, or- chards or other places ; and also, the stealing of such materials from ships, boats and other vessels, and from off wharfs, quays and other places, is become a great evil, by reason of the difficul- ty in apprehending and convicting the thieves, and in discovering the buyers and receivers ; — it is therefore enacted, that every person who shall buy or receive any of the same, knowing the same to be stolen or unlawfully come by, or shall privately buy or receive any stolen lead, iron, copper, brass, bell-metal or sol- der, by suffering any door, window cr shutter to be left open or unfastened, between sun-setting and sun-rising, for that purpose ; or shall buy or receive any of the same, at any time, in any clan- destine manner ; shall on conviction by due course of law, although the principal felon hath not been convicted, be transported for 1 4 years. <^ 2. And pne justice, on complaint on oath, by any credi- ble person, that there is cause to suspect that stolen lead, iron, copper, brass, bell-metal or solder is concealed in any dwelling- house, out-house, yard, garden or other place, may by bis war- rant, cause such place to be searched in the day-time, and if any of the same suspected to be stolen shall be found therein, may cause the same, and the person in whose house or other place the same shall be found, to be brought before two justices ; and if such person shall not give an account to the satisfaction of such justices how he came by the same, or shall not in some convenient time to be set by the said justices, produce the party of whom he bought or received the same, he shall be adjudged guilty of a misdemea- ^ 3. And every constable within his constable-wick, bea- nor. die, within his district, and watchman, while on duty, shall appre- hend every person who may be reasonably suspected of having, carrying or conveying, after sun-setting and before sun-rising, any of the said materials suspected to be stolen or unlawfully come by; and the same, together with such person, as socn as con- vf niently may be, shall carry before two justices ; and if the person so apprehended, shall not produce the party from whom he bought or received the same, or some credible witness to prove upon oath the sale or delivery thereof, or shall not give a satisfac- tory account thereof to such justices, he shall be adjudged guilty UHtmvn Of stolen e^oMu. 379 of a misdemeanor. ^ 4. In either of which cases, two justices may cause the said materials to be deposited with the churcb> wardens or overseers of the poor, where the same was found, or in any other convenient place, for any time not exceeding 30 days, and in the meantime may order the said church-wardens, &ic., or one of them in every parish, within the bills of mortality, to insert an advertisement in some public newspaper ; and elsewhere cause notice to be given by some public cryer, and by fixing on the church or chapel door, notice describing such materials, and where deposited ; and if any person can prove his property there- to upon oath to the satisfaction of such two justices, they shall order restitution thereof to the owner, after paying reasonable charges of removing, depositing and giving public notice of the same ; and if at the end of the 30 days, no person shall prove his property thereto, the same shall be sold for the best price thai can be had, and after deducting the charges aforesaid, half of the remainder shall be given to the person apprehending, and half to the poor. ^ 5. And every person to whom the same shall be brought and offered to be sold, pawned or exchanged, shall ap- prehend, secure and carry the party before a justice, (there being reasonable cause of suspicion) and in default, shall be adjudged guilty of a misdemeanor. ^ 6. And persons for the two former misdemeanors, in having or carr}ing any of the said goods, shall forfeit for the first offence, 40s. — for the second, £4 — and for every subsequent offence, £Q — and for the other misdemeanor, in not carrying a suspected party before a justice, for the first offence, 20s. — second, 40s. — and for every subsequent offence, £4 — such penalties to be levied by distress ; half to the informer and half to the poor, and in default, commitment to the house of correction for one month for the first offence — fur the second, two months— and for every subsequent offence, till discharged by the sessions. ^ 7. The conviction shall be on parchment, and be certified to the next sessions, and then filed ; in the form or to the effect following, viz: District, ) Be it remembered, that on the — day of ) — — in the year — — A, O. was convicted be- of the justices of the peace, for ' of a misdemea- to wit. fore us — - nor in having in his possession [lead, iron, copper, brass, bell- metal or solder], suspected to be stolen or unlawfully come by, and not producing the party or parties of whom he bought or received the same, nor giving a satisfactory account how he came by the same, (or, in having, carrying or conveying of lead, iron, copper, brass, bt!l-metal or solder, suspected to be stolen or unlawfully come by), and not producing the party or parties from^whom he bought or received the same, nor any credible witness to depose upon l! 380 Hrtefiiero of Stolen ^oolfu. oath, the sale or delivery thereof, and not giving a satisfactory ac- count how he came by the same, or of neglecting to apprehend and secure the person who brought and offered to pawn, sell or de- liver lead, iron, copper, brass, bell-metal or solder, suspected to be stolen or unlawfully come by ; as the case may be,) Given under our hands and seals the day and year aforesaid. Which conviction shall not be removed by certiorari, but shall be final. ^ S. And if any person (out of prison) shall commit any felony by stealing any of the said materials, and atterwards dis- cover two or more buyers or receivers, he shall upon their convic- tion be pardoned. ^ 9. And any person concerned in the stealing, (being out of prison) discovering any person to whom he offered to sell, pawn or deliver the same, shall, upon their conviction, not be prosecuted for stealing. ^11. But this shall not repeal any former law for the punishment of such offenders ; and persons punished by this act, shall not, for the same offence, be prosecuted by any such former law. By the 30 G. 2. c. 24. <§ 7. If any per- son who shall offer by way of pawn, pledge, exchange or sale, any goods, shall not be able or shall refuse to give a satisfactory ac- count of himself, or of the means by which he became possessed thereof; or if there shall be any other reason to suspect, that such goods are stolen or otherwise illegally or clandestinely obtained, it shall be lawful for any person, his servants or agents to whom the same shall be offiered, to seize and detain such person and the said goods, and to deliver him as soon as conveniently may be, into the custody of the constable or other peace officer, who shall immediately convey such person and the said goods before a justice ; and if such justice shall, upon examination and inquiry, have cause to suspect, that the said goods were stolen, or illegally or clan- destinely obtained, he may commit him to safe custody for any lime not exceeding 6 days, in order to be further examined ; and if upon either of the said examinations it shall appear to the satis- faction of such justice, that the said goods were stolen or illegally or clandestinely obtained, he shall commit the offender to the com- mon gaol or house of correction, there to be dealt with according to law. <^ 8 Provided, that if such goods so seized and detained as aforesaid, shall afterwards appear to be the property of the person who offered the same to be pawned, exchanged or sold, or that he was authorized by the owner thereof to pawn, exchange or sell the same ; yet, nevertheless, the person who shall so 8e\j.e or detain the party who offered the said goods, shall be indemnified for having so done. . Tin Advertising or receiving a Reward for helping to recover Stolen Goods. By 25 G. 2. c. 36. If any person shall publicly advertise a re- ward, with no questions asJced, fur the return of things stolen or Krceflitr^ of Stolen ^ootitf. 881 lost, or shall make use of words therein purporting^ that such reward shall be given wUhout seizing or making inquiry alter the person producing si? thing ; or shall offer to return to any pawn-broker or othe ihe money lent thereon, or other reward for the return thereof, he, and also the printer and publisher uf such advertisement, shall respectively forfeit £50, with costs, to him who shall sue in 6 months. And by 4 G. c. II. Whenever any person ta!<;eth any money or other reward, directly or indi- rectly, under pretence, or upon account of helping any person to any stolen goods ; he shall (unless he apprehend the felon, or cause him to be apprehended, and brought to trial and give evidenca against him,) be guilty of felony in the same manner, as if he had stolen the same. ^ 4. Commitment of a Receiver of Stolen Goods with the Principal Felony. (Archbold.) Home District, ) J. P., Esquire, one of His Majesty's justices to wit. 3 of the peace, for the said district ; to the consta- ble of in the said district, and to the keeper of the common gaol at Toronto in the said district. These are tn command you, the said constable, in His Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the snid com- mon gaol, the bodies of A. 13. end L. M., charged before me, this ' upon the oath of C. D. and others, for that the said A. B., on the day of in the year of our lord, — — at — — in the said district (here state the larceny, fyc^ as in ordinary cases) ; and that he the said L. M., afterwards at — — aforesaid, [six brass candlesticks and four pewter dishes, being parcel of] the goods and chattels above mentioned, so as aforesaid, feloniously (and burglariously) stolen, taken and carried away feloniously did receive, he the said L. M. then well knowing the said goods and chattels (last mentioned) to have been feloniously (and bur- glariously) stolen, taken and carried away as aforesaid, against the form of the statute, in that case made and provided, and you, the said keeper, are hereby required to receive the said A. B. and L. M. into your custody in the same common gaol, and them there safely to keep until they shall be thence delivered by due course of law. Herein fail not. Given under my hand and seal, the — — day of — — in the year of our lord, — — . Against the Receiver only for the Felony. (Abcudold.) . Commencement as before'\ on the — — day of — — in the year of our Lord, &t in the said district, one silver tan- kard, of the goods and chattels of C D., by a certain ill disposed I 382 ltrtO0nfianrr. penon, then lately before, feloniously stolen, taken and carried away, of the same evil disposed person feloniously did receive, he the said A. B. well knowing the said goods and chattels to have been feloniously stolen, taken and carried away ; against the form of the statute in that case made and provided, and you the said keeper, k.c. as ante* to the end, • RECOGNIZANCE. A RECOGNIZANCE is an obligation of record entered into before some magistrate or magistrates, duly authorised, with condition to appear at the sessions or assizes, or to keep the peace, &£C. If a person refuse to give recognizance, he may be committed. Dalt. c. 168. A recognizance must be made to the King ; it must con- tain the names, places of residence, and additions of the principals and sureties, and the penalty in which they are bound : the par- ties need not sign it ; it becomes a matter of record as soon as taken and acknowledged, although not made up by the justice, and only entered in his book. Dalt, c, 168. Recognizance, taken for the peace, must be certified to the next sessions, that the party may be called, and if they do not appear they will be estreated : and by stat. 3 W, 4. c. 3 , recognizances taken in felony or mis- demeanor, must be delivered to the public prosecutor before, or at the opening of the court. <^ 2. Or such justices may be fined. ^ 5. When a charge is made before a magistrate, he may bind over the party making the charge, and prosecute and give evidence, and also all who can give material evidence ; and, on their refu- sal, may commit them. A married woman is incapable of entering into a recognizance ; but if she altogether refuse to appear at the sessions and to find sureties for such appearance, when such ap- pearance is essential to the conviction of an offender, she may be committed. The proper course, where a married woman is a ma- terial witness, is to bind over her husband or other competent per- son, as surety for her appearance* Dickenson Q. iS. 74. : also in- fants, (that is, persons under 21 yeors of age,) who cannot legally bird themselves, must procure others to be bound for them, and in default thereof, may be committed. Chitty*s C. L. p. 91. The usual manner of taking a recognizance, is by calling the parties by name, thus : You, A. B. acknowledge to owe to our sovereign lord the,King, the sum of X20, [and in case of sureties^'] (and yoUj C. D. and E. F, acknowledge to oive to our sovereign lord the King^ the sum of £10 each,) to be levied upon your respective goods and chattels, lands and tenements, for the use of our said lord the King, his heirs and successors, if default shall be made in the condition following : \i I llrro0nf|iinre. 383 The justice should demand of each party <• if he is content;** and upon their answering that he is so, the recognizance is com- plete and the defendant is at liberty to depart. If the condition of the recognizance is not complied with, it is estreated by the court ; but during the silting of the court, upon the party exhibiting a satisfactory affidavit of any sufficient reason for non-compliance with the terms ; it has been the invariable practice for the court, on motion being made for that purpose, to take off the estreat, upon such terms as the court may require, such as entering into a new recognizance, &ic. Dickenson^ Q. iS* p. 668. Condition of a Recognizance to Prosecute, (Archbold.) The condition of this recognizance is such, that if the above- bounden A. B. shall personally appear at the next general quar- ter sessions of the peace, (or at the next general gaol deliveriff if intended for the assizes^) to be liolden in and for the said Home district, at the city of Toronto, in the said district, and then and there prefer a bill of indictment agaiitf t C. D. late of- laborer, for feloniously stealing, taking, and carrying away (here men' tion the property stolen) the property of A. O., and shall then also give evidence there, concerning the same, as well to the jurors that shall then inquire of the said felony, as also to them that shall pass upon the trial of the said C. D., that then the said recogni- zance to be void, or else to stand in full force and virtue. ^,, Condition of ReeognizancCt with sureties to appear and answer in Felony, (Dickenson.) The condition of this recognizance is such, that if the above- bounden A. B. do and shall personally appear before the justices of our said sovereign lord the King, assigned to keep the peace in and for the said Home district, and also to hear and determine di- vers felonies, trespasses, and other misdemeanors within the said district committed, at the next general quarter sessions, of the peace, to be holden in and for the said district, at the city of To- ronto, in the said district, then and there to answer our said sove- reign lord the King, for and concerning the felonious taking and stealing a certain (mentioning the article^) the property of X. Y., wherewith the said A. 6. stands charged on suspicion before (the justices naming them,) and do and receive what, by the court then and there shall be enjoined him, and shall not depart without the court, without leave or licence : then the above written recognizance shall be void, and of none effect, otherwise to remain in full force. 384 ittrnffiitrr #lRrr. Condition of a Recognizance y by a witnets to give evidence. The condition of the above written recognizance is such, that if the above-bounden E. F. shall personally appear at the next general quarter sessions of the peace, (or gaol delivery,) to be holden at the city of Toronto, in and for the said Home district, and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited by C. D. of — , yeoman to the grand jury, against A. B. late of , labourer, (for hloniously stealing the property of the said C. D.) and in case the said bill be found a trUe bill, then if the said £. F. shall then and there give evidence to the jurors that shall pass upon the trial of the said A. B., upon the said bill of indictment, and not depart thence without leave of the court ; then this recognizance to be void, or else to remain in full force. REGISTER OFFICE. Bv the 35 Gf. 3. c. 5. There shall be established in each and every county and riding of this province, wherein it may be deemed at present necessary, and as often after as occasion may require with- in others, an oilice for the enrcgistering of memorials of deeds and instruments by which lands within the same, shall be transferred or disposed of by bargain and sale, enfeoflViient, gift, devise, mort- gage, or exchange ; and it shall be lawful for the lieut. governor to name the place where such register office shall be kept, and to appoint a person of sufficient integrity and ability, to each and every office, under the conditions hereinafter mentioned, who shall faithfully cause a memorial to be enregistered of all deeds and other instruments, by which lands may be transferred or alienated, that shall be presented to him in manner hereinafter mentioned. ^ 2. That after the grant from the crown to any person or persons, a memorial of all deeds and conveyances, which shall be made and executed ; and of all wills and devises in writing whereby any lands may be affected, may, at the election of the party or parties coni> cerned, be registered ; and that every deed and conveyance made after any memorial is so registered, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee, for valuable consideration, unless a memorial be registered before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim ; and that every devise, by will, of lands mentioned in any memorial register- ed as aforesaid, made and published after the registering of such memorial, shall be adjudged fraudulent and void against a subse- quent purchaser or mortgagee for valuable consideration, unless a memorial of such will be registered. UcflMtv f the testator, then within 6 diment remov- lominee of the egister the in- t so registered the time been 8. Whenever in any British ecting lands in in the manner ial shall be re- efore the mayor n corporate, in ce, or judge of brought to the ecution of such swear that he ed ; and in case •cof, shall prove the witnesses &c., may prove the chairnMin's 11 be a sufl^teot aufh;^>^y to register the memorial of such deed. ^ 4. such jus- tices may receive evidence upon oath, and any person guilty of forswearing shall incur the pains and penalties of purjdry. Sec. 6, No certificate of any mayor or chief magistrate, &:c. aforesaid, shall have any effect unless Uie seal of such city, &:c. shall be at- fixed thereto. By the 9 G. 4. c. 21. entitled, " an act to se- cure to and confer upon certain inhabitants of this Province the civil and political rights of natural born subjects," such persons are required to take the oath of allegiance before the registrar.— See ante. p. 15, KELIGIO?;. Thk christian religion, according to high authority, is part and parcel of the law of England. To reproach or blaspheme if, therefore, is to speak in subversion of the law : and to say that religion is a cheat, manifests plainly a wish and endeavour to dis- solve all those obligations whereby civil societ)' i^ preserved, and is held to be an indictable offence at common law. /?. v. Taylor^ vintr. 293. 3 Keb. 607. By the 1 Edw. 6. c. 1. and 1 Eliz. c, 1. It is enacted, that whoever shall revile the sacrament of the Lord's supper, shall be punished by fine and imprisonment. And by 1 Eliz* c. 2. ^, 4. If any minister shall speak any thing in de- rogation of the bonk of common prayer, he shall be liable to heavy penalties. Also, by <^ 9. of the lust stat. If any person shall, in plays, songs or other open words, speak any thing in deroga- tion, depraving or despising of said book ; or shall forcibly pre- vent the reading of it by any clergyman, or compel or causf? him to read any other service in its stead, the offender shall forfeit for the first offence, 100 marks ; for the second, 400 ; and fot the third, all his goods and chatties, and moreover be liable to im- prisonment for life. And by the 3 Jitc. 1. c. 21. If any person shall use the name of the holy trinity profanely or jestingly la any stage-plays, interlude or show, he sliall be liable to a qui tarn penalty of jClO. By the 9 k 10 fV. 3. c, 32. It is enacted, that if any person educated in, or having made profession of the christian religion, shall by writing, printing, teaching or advised speaking, deny the christian religion to be true, or the holy scrip- tures to be of divine authority,^he shall for the first ofience, be rendered incapable to hold any oflice or place of trust ; and for the second, be rendered incapable of bringing any action ; being guardian, executor, legatee or purchaser of lands ; and shall suf- fer 3 years* imprisonment without bail. But if within 4 monihs after the first conviction, the offender appear in open court and publicly renounce his error, he shall be discharged that once FyMMpp 1 ■ •>: William the Fourth by the Grace of God, &cc. to wit. ) To the sheriff of — — , greeting : — We com- mand you, that without delay, you cause to be replevied to A. B.^ his cattle, goods and chattels, which C. D. hath taken and un- justly detains, as it is said, in order that the said A. B. may bav(( his just remedy in that behalf, and that you summon the said C D. to appear before us in our CQurt of King's bench at York, on the — day of term, to answer to the said A. B. in a plea of taking and unjustly detaining his cattle, goods and chattefs, and what you shall do in the premises make appear to us in our court oT King's bench, at York, on the day and at the place aforesaid, and have there then this writ. Witnesft'the honorable , chief justice of our said province, Ihig — day of ' Sic <*(*»!»»' t- II' t ' 390 litrplrHfu* SCIIDULE; B.~F0nii of Replevin Bond and CondUim, Know all men by these presents, that we A. B. of ,W. G. of — — , und J. S. of — — , nre Jointly and severally held and firmly boiinri to W. P. Esq., sheiifT of the district of in the sum of — of l.nvfdl money of Upper Canada, to he paid to the said sheiiO', or his certain altorney, executors, administrators or assigns, fur which payment to be well and truly made, we bind ourselves, and each and every of us in the whole, our and each and every of our heirs, executors and administrators, firmly by these presents ; sealed with our sealsi Dated this ■ day of ■, one thou* sand eight hundred and ■ ■ . The condition of this obligation is such, that If the abovo bounden A. B. do prosecute his suit with efiect and without delay against C. D. for the taking and unjustly detaining of his cattle, goods and chattels, to wit, (here set forth the cattle or goods dis- trained) and do make a return of the said cattle, goods and chat* tels, if a return thereof shall be adjudged, that then this present obligation shall be void and of none eiTect, or else to be and re- main in full force and virtue. Sealed and delivered in the presence of — — ^ Know all men by these presents, that I, W. P. Esquire, Sheriff of the district of , have, at the request of the within named C. D. the avoivant (or person making cognizance) in this cause, assigned over this replevin bond unto him the said C. D. pursuant to the statute in such case made and provided. In witness where- of, I have hereunto set my hand and seal of office, this — — day of , one thousand eight hundred and — — . Sealed and delivered in the presence of . SCHEDULE C— Form of Writ of Capias in Withernam. _— District, > William the Fourth by the Grace of God, &c. to wit. > To the sheriff of , greeting : — Whereas we lately commanded you, that without delay, you should cause to be replevied to A. B. his cattle, goods and chattels, to wit, &c. (setting out the cattle and goods,) which C. D. had taken and un- justly detained, as it is said, according to our writ to you afore directed, and that you should make appear to us in our court of King's bench at York, on the — — day of — — t?rm, what you should do in the premises, and you at that day returned to us that the cattle, goods and chattels aforesaid, were eloigned by the said C. D. in your bailiwick to places to you unknown, so that you could in no wise replevy the same to the said A. B. Therefore we command you that you take in withernam the jattle, goods and chattels, of the said C. D. in your bailiwick to Amtttf. S91 (hf vtlue of ihe cottle, goods and chattel!, by him the said C. D. before taken, and deliver them to the laid A. B. to be kept by him until the laid C. D. will deliver the aforesaid cattle, ponds and chattels, to the said A. B. and in what manner you shall hnve ex* er ed this oiir writ make appear to us on the — ^ day of ■ term, in our court of King's hcDrli, ili.tt we may cauie to be fur* ther done thereupon wliiit uf right an') according to the laws of our province of Upper Cannd > wc shall see meet to be done. We also command you, that if the said A. B. sImII make you secure of proiecuting his claims, and of reiuruiiii; the catilc, goods and chattels aforesaid, if u return thereof shall be adjndi^ed, then that you put by gnges and safe pledges the said C. D. that he be before us at the time last aforesaid, to answer to the said A. B. of the taking and unjustly .detaining of his cattle, goods and chattell •foresaid, and have then there this writ. \Vitness ■ SCHEDULE D Form of Notiet* • Take notice that unless A. B. who has distrained the cattle, goods and chattels, of C. D. shall enter his appearance in an ac- tion brought against him on account of the said distress, the said A. B. will on or after the — — day of , being tweniy-one days exclusive after this notice was put up, enter appearance for him to the said action, and proceed therein as if the said C. D« had appeared. Dated , A. B. in person, (or by his Attor* ney) £. F. RESCUE, is defined by Bl, 4. Com. e, 10. to be the forcibly and knowingly freeing another from arrest and imprisonment ; and it is generally the same oifence in a stranger so rescuing as it would have been in a gaoler voluntarily suffering an escape ; but here os upon volunta- ry escapes, the principal must be first attainted or receive judg- ment before the rescuer can be punished ; for by possibility there may have been no ,o6fence committed. 1 Hale's P. C, 607. ; nevertheless as the rescue is in contempt of some legal process, the offender may be committed and punished for a misdemeanor, according to the degree of his offence. To hinder a person who has committed felony from being arrested is ■* misdemeanor only; but if rescued after arrest, and the arrest was for felony, the rescuer is a felon ; if Vor treason, a traitor ; and if for a trespass, finable. HaZe Fl. 116 ; 2 Haw. e. 21 ; Russ. fy Ry. C. C. R. 458 ; but It leemi lecessary that the rescuer should have knowledge of tb* H ^i 392 Unstftutlon Of Sbtolm ^ootnsf. criminal ofieuce, if the party be In custody of a private {)enoo« but not Decessary if in custody of an officer. 2 Hale 606* Commitment for a Rescue, (Toone.) *' ' Home District, > To the constable — — , and to the keeper of lo wit. > the common gaol at , in the said district. — Whereas, A. B. of , yeoman, and C. D. of——, labourer, are this day brought before me, J. C, Esq. one of his Majesty's justices of the peace in and for the Home district, and charged ou the oaths of £. F. and G. IL, constables of — ^, with having this day at — — , in the district aforesaid, unlawfullj', riotously and against the King's peace, rescued and set at large one J. K., ^.ommilted to the custody of theui the said constables, to be con- veyed to the common gaol of——, for a felony, by virtue of a war- rant under the hand and seal of me, the said justice, bearing date the — — day of——, instant. These are therefore to command you the said constable, forthwith to convey and deliver into the custody of the keeper of the said gaol, the bodies of them the said A. B. and C. D., together with this my warrant. And also to command you the said keeper to receive the said A. B. and C. D. into your custody in the said gaol, and them there safely to keep, until they shall be discharged therefrom by due course of law.— Given under my hand and seal, &:c. RESTITUTIOJV OF STOLEN GOODS. By the common law there was no restitution of stolen goods. But it being considered that the party prosecuting the otlender by in- dictment, deserved to liiive his goods restored ; it was enacted by the Stat. 21 H. S. c. 11. that if any felon do rob or take away any man's money or goods, and thereof be indicted and arraigned and found guilty, or otherwise attainted by reason of evidence given by the party robbed or owner of tlie money or goods, or by any other, by'their procurement; then the party robbed, orowner of the goods, shall be restored to such his money or goods ; and the justices may award a writ of restitution. The writ of restitution has fallen into disuse ; but, upon produc- tion of the goods at the trial, the court will order them to be re- stored to the owner ; and if not restored, he may maintain an ac- tion of trover for them, after conviction, notwithstanding they have been sold to the person claiming in market overt, 1 Hah 543. 6 : Kel. 48. 2i/i«^714. Although this may seem hard upon the buyer, yet the rule of law is that **spoliatus debet ante omnia rcstituti^^* especially when he has used all the diligence in his power to con- vict the felon. And as the case is reduced to this hard necessit}', that either the owner or the buyer must suffer, the law prefers the V i UM, iumt, $!;c S93 lie perioov 106. I keeper of 1 districl.— -, labourer, is Majesty** charged ou vilh having y, riotously e one J. K., , to be con- tue of a war- bearing date to command ver into the hem the said And also (o 3. and C. D. fely to keep, se of law.— ODS. I goods. But fender by in- is enacted by ike away any rraigned and unce given by jy any other, of the goods, the justices upon produc- lem to be re- in lain an ac- ng they have Ualc 543. 6 on the buyer, .{a rcstituti," )ower to con- ,rd necessity, \v prefers the 1 right of the owner who has done a meritorious act by persuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. 4 BL Com. 363. However, by the 31 Elis. c. 12. where a horse is stolen, and sold in open market, according to the provisions of the act, the owner can only be entitled to it again upon payment of the buyers costSi. See further on this subject, title ** Horses,'* ante. p. 226. If the thief sell the goods and be taken with the money which he sold them for, and the goods cannot be heard of, it has been questioned whether the prosecutor shall have the money. W.Jones 148. 2 East. P. C. 789. But the better opinion seems to be where it is clearly ascertained that the money is the produce of the goods stolen, that the prosecutor would be then entitled to it, within the equity of the above statute. Hamberrie*s case. Cro. Eliz, 661. Harris' case, Noy, 128. 1 Hale, 542. 2 East. P. C. 789. Restitution, however, can only be had from the person in pos- session of the goods at the time of, or after the felon's attainder. Therefore, if a party purchase them bona fide, in market overt, and sell them again before conviction, no action will in this case lie against him for the value, though notice were even given him not to sell. Horwood v. Smith, 2 . R. 753. But the necessity of prosecuting and convicting or attainting the felon, in order to have restitution, is only when the property is changed by some inter- mediate act, as when they have been sold in market overt. For otherwise the owner may, at common law, peaceably retake hi» goods wherever he finds them, without any writ of restitution. Kel, 48. 2 IJaw. c. 25. IIIOT, KOUT, &c. A RIOT is the forcibly doing an unlawful thing by three or more persons assembled together for that purpose. By the common law, peace oflicers may suppress a riot, and may command all other persons to assist them. 1 llaio. c. 65. % \\. A rout \% where three or more meet together to do some unlawful act upon a common quarrel, as forcibly breaking down fences upon a righl claimed of common or way, and make some advances towards if, but without actually executing it. Ibid. An unlawful assembly is where three or more assemble themselves together, with intent to do an unlawful act, as to pull down enclosures, &c. but part without doing it, or raakiui^ any motion towards it. Ibid. A rioi at common law, is a misdemeanor only, punishable by fine and imprisonment. 1 Haw* c. 65. ^ 12. But under particular I'll f I liji fit 894 Uiatp Uontp ^^ circumslances, tvliich will be seen hereafter, h ti In totnt c»iMi« by statute, made feloi)}'. ■■'-■• . •. > ; -.ifi - - :}'•'« Riot at Common LaWy (Misdemeanor.) <• > . . v If the jiotous assembly meet for a public purpose,— as to re- dress a general grievance ; to pull down all enclosures; or tore- form religion ; or with a determination to resist the king's forces, if leS'^i'Iy called in to keep the peace ; — their proceedings then may amount to overt acts of iiigh treason, by levying war against the King. 4 Bl. Com. 147. To coiisiiiute a riot, there must be some circumstances of actual force or violence, or at least of an apparent tendency thereto, which arc calculated to strike terror among the people, such as the show of oiiensive weapons, threatening speeches, or turbulent gestures. But it is not necessary that personal violence should have been actually committed. 1 liaw. c. 65. •§ 5. Clifford fy Brandorit 2 Camp. 369. Nor will it amount to a riot if the ob- ject is to do a lawful act, as to remove a nuisance. 1 Haw. c. 65. ^ 8. R. V. So%, 1 1 Mod. 117. 5 Burn's J. Riot, § I. Where a person on seeing others actually engaged in a riot joins himself to them and assists them, he is as much a rioter as if he had at first assembled with them for the same purpose. 1 Haw. c, 65. ^ 3. And whoever encourages, or promotes, or takes part in a riot, whether by words, signs or gestures, or by wearing the badge, or ensign of the rioters, is himself to be considered a rioK r ; for in this case, all are principals. 2 Camp. 370. 4 Burr, 2073. 1 Hale, 463. To incite persons to assemble in a riotous manner, appears to be an indictable offence. Cro. Cir. Camp. 420. 8 Ed. 2 Chit, C, L. 506. Women are punishable as rioters ; but infants, under the age of discretion, are not. 1 Haw. c. 5. 65. ^ 14. Where an infant is indictable, he may appear by attorney. R. v. Turner, 2 Ld. R. 1284. Thus mucb for a riot at Common Law, Riot by Statute, (Felony.) The statute I Gr. 1. st. 2. c. 5, ^ 1. commonly called the riot act, enacts that if any persons to the number of twelve or more, being unlawfully, riotously and tumultuously assembled together, to the disturbance of the public peace ; and being required or commanded by any justice of the peace, or the sheril/ of the county, or his under-sheriff, or by the mayor, bailiiT, or other bead officer, or justice of the peace of any city or town corporate, Kfot> l^ont, ^t« 895 •om§ c«iM« where •uch assembly shall be, by proclamation made In the King's name, (in the form directed by the second section of the act) to disperse themselves, and peaceably to depart to their habitations, or to their lawful business — siiall, to the number of twelve or more, (notwithstanding such proclamation made) unlawfully, riot* ously and tumultuously, remain or continue together by the space of one hour after such command or request made by proclama- tion — the parties so remaining shall be guilty of ftlony, and suffer death. By sec. 2. The Justice (or person authorised as above) shall, among the said lioters, or as near to them as he can law- fully come, with a loud voice command, or cause to be command- ed, silence to be, while proclamation is making ; and after that, shall openly and with loud voice make, or cause to be made, pro- clamation, in these words, or like in effect : — ** Our sovereign lord the King chargeth and commandeth all " persons being assembled to disperse themselves, and peaceably ** to depart to their habitations or to their lawful business, upon the " pains contained in the act made in the (Trst year of the reign of *' King George, for preventing tumults and riotous assemblies. " God save the King." By sec. 3. Those assembled, and not dispersing within an hour, may be seized; and if they make resistance, the persons killing them shall be indemnified. Sec. 4. And if any persons unlawfully, riotously and tumultuously assembled, shall unlaw- fully and with force, demolish or pull down, or begin to demolish or pull down, any church, chapel, or any building for religious worship, certified and registered according to the statute of the 1 TV. fy. 31., or any dweiliiig-house, barn, stable, o|' other out- house, they shall suller death, without benefit of clergy. Sec. 5, And if any person shall, with force and arms, wilfully oppose, hinder or hurt, any person that shall begin or go to make tho proclamation, whereby the same shall not be made, he shall be guilty of felony; and also every person so unlawfully, riotously and tumultuously assembled, to the number of twelve or more, to whom proclamation should or ought to have been made, if the same had not been hindered, shall likewise, in case they, or any of them, to the number of twelve or more, shall continue together, and not disperse themselves within one hour after such let or hindrance so made — shall be g'lilty of (elony. Sec. S. Prosecu- tions under this act must be commenced within twelve months. By 13 Jf. 4. c. 7. Any two justices, with the sheriff or under- sheriff, may come with the posse comitaiust if necessary, and sup- press a riot, and record the circumstances : which record shall be a sufficient conviction of the offenders ; — if the rioters are departed^ 396 S(fOt» »9UU ^C the Jusdceg shall make inquiry within a month afterwurdi* and hear and determinine the same. Rioters convicted on the vievr of two justices and the sheriff, may be fined ; and the statute re- quires that the sherifi' should join in assessing the fine. Raym. 386* When riots are committed, the sheriiT, on precept directed to him, shall return twenty-four persons within the district, to inquire thereof. 19 H. 7. c. 13. And the riot being found by inquisition, the justices shall make a record thereof in writing, which ia to remain with one of the justices. Dalt, c, 82. ^ * By 3 fV. 4. c, 4. The riot act, 1 Gf. 1., is confirmed in its re- lation to this province ; and it is enacted that the provisions in the fourth clause of the same act shall apply and extend to all churches or chapels or places for religious worship in this pro- vince, notwithstanding the same, or any of theroi shall not b« certified or registered as provided in the said act. ^ . Record of a Riot on vkw, (Burn.) — District, > Be it remembered, that on — — day of > to wit. 5 '" *''6 y®^'' of the reign, &c. we, J. C. and S. P., Esqrs. two of the justices of our said lord the King, assign- ed to keep the peace in the -^— > district, and J. P., Esq., siieriff of the said district, on the complaint and at the request of A. B. of , in the district aforesaid, Esq. in our proper persons, have come to the mansion house of him the said A. B., at ' afore- said, and then and there do find C. D. of , yeoman, E. F. of ■, yeoman, G. H. of , yeoman, and other malefactors and disturbers of the peace of our said lord the King, to us un- known, in a war-like manner arrayed ; to wit, with clubs, swords and guns, unlawfully, riotously and routously assembled and the fiame house besetting, many evils against him the said A. B., threatening, to the great disturbance of the peace of our said lord the King, and terror to his people, and against the form of the statute in that case made and provided ; and therefore we, the aforesaid J. C. and S. P., and J. P., the aforesaid C. D., E. F. and G. 11. do then and there cause to be arrested and to the next gaol of our said lord the King in the district aforesaid, to be con- veyed, by our view and record of the unlawful assembly, riot and rout aforesaid convicted ; there to remain every and each of them respectively, until tliey shall severally and respectively have paid to our said lord the King the several sums of XIO each, which we do impose upon them and every of thorn separately, for their said of- fence. In testimony whereof to this our present record, we do put our seals* Dated at ■ aforesaidi the day and year aforesaid irardi* ind the view of statute re- ^aym. 386. ted to him, to inquire inquisition, which is to ;d in its re- rovtsions in xtend to all in this pro- ihall not b« »> ay of ■» ?, J. C. and ;ing, assign- ilsq., siieriff St of A. B. ersons, liave - a fore- man, £. F* malefactors to us un« ubs, swords )led and the said A. Bm lur said lord form of the ore we, the J. Dm E. F. \ to the next J, to be con- bly, riot and ?ach of them have paid to which we do heir said of- d, we do put r aforeiaidk ) Commitmtnt of Rioters on viev>, (Bcitn.) S97 (.^'■■■y ! — District, > J. C. and S. P., Esqrs. two of tlie Justices of to wit. 3 our sovereign lord the King, assigned to keep the peace within the ■ district, and J. P., Esq., sheriff of the said district. To the keeper of the gaol of our said lord the King, at — — , in the said district, and to his deputy and depu- ties there, and to every of them greeting : — Whereas, upon com- plaint made unto us by A. B. of———, Esq., we did this present ' ' day of———, go to the house ofthe snid A. B. at ■ - aforesaid, and there did see C. D. of — — , yeoman, E. F. of yeoman, and G. H. of' -, yeoman, nnd other male- factors to us unknown, assembled together in nu unlawful, riotous and ruulous manner, to the terror of the people nnd ngninst tlie peace of our said lord the King; and ngninst the form of the statute in such case made and provided : we do thercfoip send yon by the bringers hereof, the bodies of the said C. D., E. F. and G. H., convicted of the said riot, rout and unlawful assembly, liy our own view, testimony and record ; commanding you in the name of our said lord the King, to receive them into the said gaol and them and every of them respectively, th.cre safely to keep un- til they and every of them shall respectively pay to our said lord the King, the several sums of — each, which we have set and imposed upon them and each and every of them separately, for the said offence. Given under our hands and seals at , &c, .-, Precept to Summon a Jury. 19 //. 7. c 13. (Runw.) — — District, > J. C. and S. P., Esqrs., two of the justices of to wit. \ our lord the King, assigned to keep tl;e peace in the ■ ■ district, and also to hear and determine divers felonies, trespasses and other misdeeds, in the said district committed. To the sherifl* of the said district, greeting : — On the behalf of our said lord the King, we command yon, that you cause to come be- fore us, J- C. and S. P. at——-, in the district aforesaid, on the — — — day of next ensuing, twenty-four honest and lawful men of the district aforesaid, every one of which to have lands and tenements within the said district, ofthe yearly value of 20*. of charter laiid, or of freehold, over and above nil charges ; to inquire for our said lord the King, and for our indemnity in this behalf, upon their oath nf certain riots, routs and unlawful assem- blies at|— — , in the district aforesaid, lately committed, as it is said, and that you return upon every person so by yon to be im- pannelled, 20$. of issues at the aforesaid day, to be by them re- spectively forfeited if they shall not appear nnd be sworn to inquire of the premises at the same time and place ;— and this you shall io i i ['! » *"' lB i S98 S(($f » Xlant» $rc* nowise onir:» on pnhi of JC20. Given under our hands and teal*, at — ^— aforecaid, llie day of , in the ■ ' year of the reign of King William the fourth. Foreman of the Jurors* Oath, Toil shall true inquiry and pre$:entment make of all such thing! SB shall come before you, concertiing a riot, rout and unlawful as- sembly, said to have been lately committed at ■ - in this dis- trict ; you shall spare no one for favor or aflecliou, nor grieve any one for hatred or ill-will, but proceed herein according to the best of your knowledge, and according to the evidence that shall be given to you. So help you God. Jitror^s Oath. The oath which your foreman hath taken on his part, you and every of you shall well and truly observe and keep on your parts. So help ^'ou God. The Inquisition t Indictment or Presentment of a Jury. (Bcbn.) ■ District, > An inquisition for our lord the King, indented to wit. i and taken at — — — district, the day of. Ml the m the - year of the reij?n of his present Majesty King VViiliam the fourth, by the oath of honest and lawful men of the district aforesaid, before J. C. and S. P., Esqrs. Justices of our said lord the king, assigned to keep the peace in the said district, and also to hear and determine divers felonies, trespasses and other misdemeanors in the said dis- trict committed, w ho say upon their oath aforesaid, that C. D. of , yeoman, E. F. of———, yeoman, and G. H. o f yeoman, together with other malefactors and disturbers of the peace of our said lord the King, to the jurors aforesaid as yet un- known, on the day of , now last past, at ■. aforesaid, in the district aforesaid, with force and arms, to wit, with clubs, swords and guns, unlawfully, routously and riotously did assemble to disturb the pence of onr said lord the King and so being then and there assembled and gathered together, the man- sion house of A. B., Esq. at aforesaid, unlawfully, routously and riotously did enter, and in and upon him the said A. B., then and there unlawfully, routously and riotously did make an assault, and him the said A. B. then and there routously and riotously did beat, wound and ill trent in disturbance of the peace of our said lord the King, and to the terror of his people, and against the form of the statute in such case made and provided. Wc, whose names are hereto set, the above Jurors, do find this inquisi- tion true— J. K. ; L. M. ; N. 0. ; F. Q. ; R. S. j T. a.j £ic. i I : JXW, UonU ^t. 399 I and leatt, the such ihingt unlawful ns- - ill lliis d'«»- r grieve any g \o ihe best hat shall be )art, you and n your parts. y. (Burn.) :inff, indented - district, the of his reign jth of — ore J. C. and igned to keep uid determine n the said dis- , that C. D. of . H. of— turbers of the said as yet nn« ast, at - arms, to wit, ! and riotously »e King and so iher, the man- nlly, roulonsly ud A. B., then ake an assault, f and riotously \e peace of our le, and against )rovided. We, iud this inquisi- ; T. U.; ^c. I We, (tie ju8(tces!abovesaid, do- hereby impose the fines he reuade4- written on the aforesaid offenders, C. D. £20, ■,> E. F. X'20, ■ ' G. H. £20. Indictment for a Hint and AssaulL (Archbold.) Home District, ") The jurors for our lord the King, upon thoir to wit. ) oath present that .7. S , i»to of the towr.ship of ■ in the Home district, labourer, J. VV., late ofllie same, car- penter, E. W., late of the same, yeuman, together with divers other evil disposed persons, to the uumber of tliree, and now to the jurors aforesaid unknown, on the . day of in the year of the reign of our sovereign lord William the fourth, with force and arms, at the township aforesaid, in the district aforesaid, nnlawfully, riotously and routously did assemble and gather to- gether, to disturb the peace of our said lord the King, and being so then and there assembled and gathered togetlier, in and upon one A. the wife of J. N., in the peace of God and of our lord ihn King, then and there being nnlawftdly, riotously and routously did make an assault, and her the said A. then and there uiilawrui* ly, riotously and routously did heal, wound and ill-treat, so that her life was greatly despaired of, and other wronp:s to the said A. then and there unlawfully, riotously and routously did : in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our lord the King, bis crown and dignity. — (Add also another count for a common assault.} Indictment for a Riot and Tumult. (Archbold.) Commence.ment as in the last form,"] he. with force and armi, to wit, — with sticks, staves, and other offensive weapons, at the township aforesaid, in the district aforesaid, unlawfully, riotously, and routously did assemble and gather together, to disturb the peace of our said lord the King : and being so assembled and gathered together, armed as last aforesaid, did thiMi and tlitM'e nnliiwfully, riotously and routously make a great. noise, riot and distnrbance, and did then and there remain and continue armed as last afore- said, making such noise, riot and disturbance for the space of an hour and more, then next following, to the great disturbance and terror, not only of the liege subjects of our said lord the King, there being and residing, but of all other the liege subjects ofoup said lord the King then passing and repassing in and along the King's common highway, there, in contempt of our said lord the King and bis laws — to the evil example of all others in the lika 400 mft^tvn Htt9 INTjllliltfttfOllt $ct. cnse offending, and egafpst the peace of our lord the KIngi liu crowo and dignity. , ' •-> ' Commitment for a Riot and Felonioutly Beginning to Demolish m House. (TooNG.) To the keeper of — to wit.— Receive into your custody the body of E. F. here- with sent you, brought before mc J. C. Esq. one of his Mojesty't ju^ices of the peace for the ' district, and charged by A. B. before me the said justice, upon oath, with unlawfully, riotously, tumultuously and feloniously assembling, with divers other per- sons, to the disturbance of the public peace, cf. in the said district, on — — the — — day of 18—^- -, bnd with force and arms beginning to demolish and pull down a certain dwelling- house there situate, belonging to A. D. Esquire, contrary to the statute, &^Ct ^ - , i, TJt§ Wet for Rioters remaining an hour together after the Riot Act has been read. (Akcubold.) Commencement is before,'] on the — — day of — — in the year of our Lord 18——, ai — — , in the said district, together with divers other evil disposed persons, unlawfully, riotously, and rou- tously did assemble and gather together ; and notwithstancl'ng proclamation made in that behalf by one of his Majesty^s justices of the peace for the said district, commmanding and requiring ihem to disperse themselves, and peaceably to depart to their habitations or to their lawful business, the said A. B., C. D. and £. F., to- gether with other persons to the number of twelve and more, felo- niously, riotously, and tumultuously did remain and continue to- gether by the space of one hour after such command so made by the said proclamation as aforesaid. And you the said keeper, he RIVERS AND NAVIGATION. '-g' A NAVIGABLE river is, with respect to the right of the public to pass along it for the conveyance of themselves or their goods and morchandizes, in the nature of a public highway. 1 Haw. c. 76. ^ 1, 3 Com, Dig. 23. A nuisance occasioned to a public river, by obstruction, is indictable on the same principle as a similar nuisance to o highway. Thus, the laijing of timber in a public river, where'jy the passage of vessels is obstructed, is as much a nuisance p.s laying logs in a highway. 5 J3ac»Ab» nuisance, (A.) Motideriif* 401 ROBBERY. * ,. . . . " HonncRY signifies a larceny from the person, committed openly and violently ; und may be defined to be, the felonious and forcible taking of goods or money of any value from the person of a' her, or in Ills presence, against hh will, by violence, or putting h.ai in fear. 4 JSL Com. 243. 2 East P. C. 797. Of the Felonious talcing. r the Riot Act The gist of the oflence being the force and terror used by the oflfendcr, the value of the property stolen is quite Immaterial ; for a penny as well as a pound, forcibly taken or extorted, constitute in law a robbery. 3 Inst. 69. 1 Hah 532. 1 Haw. c. 34. § 16. 4 Bl. Com. 243. The taking also must be such, as to give the robber a possession of the property stolen. Therefore, if a man having his pni\ overpower or actual struggle »vill not amount redients of the >y, lLe«c^287. He (a.) R* V, be done to the lin his property, IS pulled so vio- rh and made to apier, 1 Leach. isecutor's watch ihain round his 1, in order to get overcome the re- il force for that Dlence used also accompanied by lerc the prosecu- and was stopped want of a permit ■mit being neces- » before a magis- is who were riot- prisoner, carried , this was held to nd goods by ilie \Ierrman v, Hun- ^ilh respect to a Iters not whether 'property or the ilh a drawn sword onious intent, beg V alms of another, who gives it to him through mistrust i misap- prehension, this pretence of asking charity will not p. t^nt the offence from being considered as robbery. 4 BL Com. 244. 2 East P. C. 711. The degree of fear need not be the extremes! state of alarm or terror, but only such a reasonable apprehension of dan- gv'r, as may induce a man, for his own safety, to part with his pro- perty. So where a man is compelled through fear to part with his money, in order to prevent his home or property from being burnt or destroyed, this will he a sufficient putting in fear, to make the offence of those who take his money amount to the crime of robbery. So where a person is induced to part with his money through fear, upOn the threat of another to accuse him of an unnat- ural offence, or any other crime, whereby his character or reputation may be injured ; extorting money under a threat of this description, will amount to the crime of robbery ; and whether the party threaten- ed has been guilty of the crime or not. li. v.Gnrdinert IC. &f P.l\). Of Principals and Accessories. — (And see ante. Accessories.) With respect to persons aiding and abbetting in a robbery, the same rules are applicable n? in every case of principal and acces- lory. Thus, where several persons come to rob a man, and they are all present^ whilst one of^ them takes his money, they are all guilty of robbery. So, if three persons come to commit a robbery, and one stand sentinel at the corner of a field to watch if any one should approach, while the others commit the robbery, this will be a robbery in the third also, though he stood at a distance from them, and not within view. 1 Hale 534. 537. But though several come out with a common design to rob in the highway, yet if one of the party (before any robbery takes place) entirely leaves them, and goes another way, rendering them no manner of as- sistance, either at the time or after the commission of a robbery by the others, he cannot then be said to be guilty, cither as prin- cipal or accessory. R. v. Uyde^ 1 Hah 537. Of Assatdts with intent to Rob. By 7 Gr. 2. c. 21. <^ 1. If any person shall, with any offensive weapon or instrument, unlawfully and maliciously assault, or shall by menaces, or in or by any violent or forcible manner, demand any money, goods or chattels, of or from any person or persons, with a felonious intent to rob, or commit robbery upon such per- son or persons, that then and in every such case, all and every such person or persons so offending, shall be adjudged guilty of felony, and shall be liable to be transported as in cases of felony. ^li^W^^^v V 'i 1 V iflj 1 't :fe' 404 Commitment for a Rohhtri (Aroiioold.) Commtnctment aa ante, p, 117.J— on the doy of , in the year of our Lord, one thousand eight hundred and at in the said district in and upon the said C. D., feloniously did make an assault, and him the said C. D. in bodily fear and danger of his life feloniously did put, and ten pieces of the cur* rent gold coin of this province, called sovereigns, and one gold watch, of the monies, goods and chattels of the said C. D. from the ptrson and against the will of said C. D. feloniously and vio- lently did steal, take and carry away. And you the said keeper, &c. (as ante. p. in.) Commitment for an Assault teith intent to Rob, (AnciinoLD.) Commencement as ante, jJ- 11 7.^ — on the — — — day of , in the year of our Lord, one thousand eight hundred and — ai in the said district, in and upon the said C. D. feloniously did make an assault, with intent then and there the monies, goods and chattels, of the said C. D. from t!)c person and againat the will of the said C. D. feloniously and violently to steal, take and carry away, against the form of the statute in that case made and provided. And you the said keeper, &c. (as ante. p. in.) Sabdatp.— -fiStfe " Lord's Vay,^' ante, p. dOl.) SACRILEGE. Sacrilege (sacrileglum) is at common law, the robbery of a church, or a felonious taking out of a holy place, things con* secrated to pious purposes ; as the vessels, goods or ornaments, of the church. 3 Cro, 153. But to steal ?ny thing belonging to private persons in a church, is larceny, and not sacrilege. Sacri- lege was originally punished with greater severity than other rob- beries, by our law ; for it denied the benefit of clergy to a person convicted of this offence, which was formerly granted to all other felons. 2 Inst. 250. 23 H. 8. c. 1. -^ 3. 1 Ed. G. c. 12, '^ 10.— But under the 3 W. 4. c. A. wuicii defmes ihc number and de- scription of crimes that shdll be punished with dcatii, — sacrilege not being included, is rio longer a capital olTence, but is tiow pun- ishable as any other common felony^ SALMON. Bt ZG* 4. c. 10. ^ 2. No salmon or salmon fry shall be taken or kill- ed, from the 25th day of October to the 1st January, (repealed by SbcorcH Watvant 405 the 4 0. 4. c. 20.) ^ 3. No person sliall fish by torch-light, withiu lOO yards of any mill ordain. ^ 4. No salmon or salmon fry. shall be taken in ilie Home district, district of Newcastle, and dis- trict of Gore, nearer the mouth of any river or creek, along the shore of Lake Ontario, than 200 yards, or within 50 yards up the mouth of any such river or creek, except the Credit, in the Home district, and there not within 200 yards up the mouth of the said river. ^5, None to be taken by nets or wears in any of the creeks and rivers in said districts. ^ 6. Any person convicted of any offence under (his act, before two or more justices, by oath of one or more witnesses, other ttian the informer, shall forfeit and pay not less than 5s. nor more than £5 for every ofience, with reasonable costs, and in default of payment, be committed to the common gaol for not loss than two days, nor more than thirty days, unless the came fihall be paid. ^ 6. One moiety of the Hues shall be paid to the iufctrmer and the other to the province. <^ 8 This act shall nut cxtciul to any other part of the Goie district, than is comprised wiihin the township of Trafalgar, and that part of the township of Nelson which lies north of the beach, between Burlington bay and lake Ontario : and shall not prevent Indians fishing as heretofore, except wiihin 100 yards of a ir.ill or mill dam, by fire or torch-lit;ht. By 4 G. 4. c. 20., the 2d ^ of the 2 6r. 4 c. 10. is repealed, and it is enacted^ that it shall not be lav.-ful to take any salmon or salmon fry, from the 10th Novem- ber till the 1st of Januar}'. <^ 2. Extends the provisions of 2 O. 4. to the whole of the river Trent. <^ 4, Prohibits the buying of any salmon from the Indians, within the periods prohibited under the penally as any pcr<'on shull be subject to for infringing the provisions of said act :J. G. 4. '^ 5. One half of any fines under this act shall be paid to the iuformer and the other to the use of the province. The forms neces -iry in proceedings to recover any of the penal- ties under these vcn, will be found under their general lilies of "Information," "Summons," "Conyiction" ♦• Distress Warrant" and "Commitment." SEARCH WARRANT. It seems that formerly it was not unusual for justices to grant general warrants to search all suspected places for stolen goods ; yet such practice is generally condemned by the best authorities ; and Lord Hale, in his pleas of the crown, says, a general warrant to seach for felons, or stolen goods, is not good. IL PL 93. Likewise, upon a hare surmise a justice cannot legally grant a warrant to break any man's house to search for a felon or stolen goods. 4 Jnst. 177. But in case of a complaint, and oath made, I h ?liP- ill Ik ■«■ ' m 406 Sbcutcij W^avvauk of goods stolen, and that the complainant suspects the goods are }n a certain house or place, and shews the ground of his suspicion, the justice may grant a warrant to search in those suspected places mentioned in his warrant, and to attach the goods and the party in whose custody they are found, and bring them before him, or some other justice, to give an account how he came by them ; and furtlier, to abide such order as to law doth appertain. 2 H. H. 113. 150. But in case not merely of probable suspicion, but of positive proof, it is right to execute the warrant in the night timet lest the ufTenders and goods also, be gone before morning. Barl. search W. Such warrant must be directed to the constable^ or a peace officer, and not to any private person ; though the complain- ant may aid and assist, because he knows the goods. 2H.H. 150. Whether the stolen goods are in a suspected house or not, the of- ficer, and his assistants, in the day time, may enter, the doors be- ing open, to make search, and it is justifiable by this warrant 2 H. II. 151. If the door be shut, and upon demand, it be refused to be opened by them within, if the stolen goods be in the house, the officer may break open the door. 211. H. 151, If the goods be not in the house, yet it seems the officer is excused that breaks open the door to search, because he searched by warrant, and could not know whether the goods were there, till search made ; but it seems the party that made the suggestion is punishable in such case ; for, as to liim, the breaking of the door is, in eventUt lawful or unlawful, to wit — lawful, if the goods are there; unlawful, if not there. 2 H. II. 151. On the return of the warrant, if it appear the goods were not stolen, they are to be restored to the possessor ; if it appear they were stolen, they are not to be delivered to the proprietor, but deposited in the hands of the constable ; to the end that the party robbed may proceed, by indicting and convicting the offender, to have restitution. 2 //. H. 151. As touching the party that had the custody of the good, if they were nor stolen, then he is to be discharged ; if stolen, but not by him, but by an- other that sold or delivered them to him, if it appear that lie^was ignorant that they were stolen, he may bedischarged as an offender, and bound over to give evidence, as a witness against him that stole To the constable of Home District, > Whereas it appears to me, R. S. Esquire, one of the justices of our lord the King, assigned to keep the peace in the said district, by the information of of , in the said district, yeoman, that certain goods and chattels, to wit: — [here name them,] have within • days last past, by some person or persons unknown, been feloniously stolen, taken and carried away out of the house of the said , at — — aforesaid, in the district aforesaid ; and that the said hath probable cause to suspect, and doth suspect that the said goods and chattels, or some part of the same, are now concealed in the dwelling-house of ■ of -, in the district aforesaid, yeoman : These are therefore, in the name of our said lord the King, to authorise and require you, with necessary and proper assistants, to enter in the day time into the said dwelling-house of the said , at ■ afore- said, in the district aforesaid, and ther;? diligently to search for the said goods and chattels ; and if the same, or any parts thereof, shall be found upon such search, that then you bring the goods and chat- tels so found, and also the body of the said before me, or some other of the justices of our said lord the King, assigned to keep the peace in the said district, to be disposed of and dealt with according to law. Given under my hand and seal at afore- said, in the said Home district, the day of , in the year of our Lord 18 — . SEDITION. Sedition is understood to comprise vvidiin its meaning, all of- fences against the King and the government, which arc not cnpital, and do not amount to the crime of high treason. It includes all oOences of like tendency with treason, but without any such direct intent or overt act of the parly formed or executed, as to bring it nithin the more serious offence. All contempts against tlie king 408 ^tvi^mt^. and his government, and riotous sissemblies for political purposes, may be ranked under the Iiead of sedition ; though it has been held, that when the object of the riot is to redress a general gne- vance» as to pull down all enclosures, or to reform religion, or ihe ]ike, it may then amount to an overt act of high treason ; being in the nature of a levying of war against the king : and see ante * Riot,* p. 393 : and in general, it may suffice to remark, that all contemptuous, indecent- or malicious observations, upon the per- son of the king or his government, whether by writing or speak- ing, or by tokens calculated to lessen him in the esteem of his .subjects, to weaken his government or to raise jealousies of him amongst the people, will fall under the notion of sedition ; as well as all direct or indirect acts or threats, tending to overcome his measures or disturb the course of his government, not amounting to overt acts of treason. All these attempts are highly criminal at common law, and are punishable with ^ne and imprisonment. 4 BL Com. 147. 1 Hatv. c. 65. ^6, IE. P. C. 76. . SERVANTS. By 32 G. 3. c. 56. Any person falsely personating any master or mistress, or giving a false character, or any servant oiTering u false character, shall forfeit j£20, to be recovered before two jus- lices upon oath of one witness. A servant may be discharged at a moment's warning for immorality, or gross mi^jconduct. 11. v, JBram^ton, Cald. II. Or for wilful disobedience of orders. Sjictin V. Amott,2 Star. Rep. 256. And if a servant of his own accord go away before his time expires, he runs the risk of losing all his wages. Dalt, c. 58 p, 141. And when Jischarged for mis« conduct, will be entitled only to wages due at the time of his dis- charge. 3 Esp. 235. If a servant, however, not having been guilty of any misronduct, be discharged without warning, he is entitled in such case, if hired by the month, to a month's wages above those that may be due. 2 Sd. N. P. 1032. By the 20 G. %c. 19. All complaints, diflerences and disputes, between masters or mistresses, nnd servants in husbandri/, hired for a year (or for less time, bij 31 G. 2. c. 11.) or between masters ai»d mistresses and artificers, handicrai'ts-men, miners, colliers, keel-men, pit-men, glass-men, potters and other labourers, enin!o_)ed for any certain lime, or in any other niixjujcr, shall be tietermined by one juhliee, where the master or mistress shall inhabit; which justice sliull ex- amine on oath, any sucli servant, or other the suid persons, or any other witness, touching 3uch complaint, and make such order for payment of wages as to him shall seem just and reasonable, not ttxceediug .€10, with regard to any servant, nor JL'5, with regard ■ I .SbCttlEUt^ 409 cal purposie«, h il has been general giie- ligion, or ihe ;asou ; being and see ante nark, that all jpon the per- ing or speak- cstcem of his )usit's of him ition ; as well overcome his ot amounting ghly criminal mprisonment. 76. g any master ant offering a cfore two jus- dischargetl at }n(lucl. il. V, orders. Sj}ain is own accord of losing all irged for niis- me of his dis- having been rning, he is nonth's wages By the 20 G. Iwcen masters year (or for nd mistresses men, pii-mt>», or any teitain y one Jiihiici', lice sliull ex- er>ons, or any such order lor cuson<»5jle, ui)t , with regard IS to any otiier persons ; and in case of non-paym«?nt for 21 days, sacii justice may issue his warrant, of distress — and by the same statute, such justice, on application or complaint on oath, by any master or mistress, or employer against any such servant, &ic. orlabourer^ concerning any misdemeanor, miscarriage or ill behaviour, in such his service or employment, may hear and determine the same, and punish the offender by commitment to the house of correction, there to remain and be corrected, and held to hard hibour, not ex- ceeding one calendar month ; or otherwise by abating? some part of his wages, or by discharging such servant, or other the said per- sons from their service or employment, with power of appeal to the next sessions, i^ho nlay award costs to either party, not exceeding 40*. and no certiorari shall be allowed. § G. By the 6 G. 3. c. 25. If any artificer, calico-printer, handicrafts-man, miner, keel-man, pit man, glass-man, poller, labourer or other person, shall contract with any person for any time or term, and shall ab- sent himself from his service, before the term of his contract- shall be completed, or be guilty of any other misdemeanor, it shull be lawful for one justice of the county or place where the offender shall be found, on complaint upon oath to him made by aucii master, or by his steward or a^ent, to issue his warrant to appre- hend such person complained of, and to examine into the nature of the complaint, and if it shall appear to such justice, that the per- son complained of, bat'i not fuiHIled his contrnrt, or hath been guilty of any misdemeanor, the said justice sh'dl commit him to the house of correction for the county or place where such justice shall reside, for anytime not exceeding three months, nor less than one month; and any person aggrieved by such deierniinatioB, order or warrant of the justice, (except any order of comiuitmeui) may appeal to the next sessions, giving six days' notice to the jiistice and to the parties, ami entering into recognizance within three days'after notice before a justice, with sufiiciewt surety to try tlie appeal at and abide the order of sessions. Complaint of a Master against a i^^croant for Kiisbchav'wttr^ om tke 20 G. 2. c. 19. and 6 G. 3. c. 25. (Burn.) ' > ^-^^ '•- Home District, ) Be it remembered, that this day of in to wit. i the ■ year of the reign of our sovereign lord William the fourth, A. M. of the township of ■ ■ ■■ in tire county of in the home dist|ict, husbandman, cnmplaineih and makefh oath before me, J. P. Esq., one of his Majesty's jus- tices of the peace in and for the snid district, that A. S. late of — — aforesaid, in the county and district aforesaid, servant in husbandry (or labourer) to liim the said A. ^1. hath iu his iiaid f I 410 artlwnUi^ service (oi' employment) been guilty of divers misdemeanors, mis- carriages and ill behaviour, towards him the said A. M. and par- ticularly [relating the facts, as the case may be"] and thereupon he the said A. M. prayeth that justice may be done. Before me, A. M. J. P. Warrant for the Servant or Labourer thereupon. (Burn.) Home District, ; To the Constable of to wit. 3 Whereas information and complaint hath been made unto me — -^ one of his Majesty's justices of the peace in and for the said district, upon the oath of A. M. of husband- man, that A. S. late of servant in husbandry (or labourer) to him the said A. M. hath in his said service (or employment) been guilty of divers misdemeanors, miscarriages and ill behavi- our, towards him the said A. M. and particularly &£c. {as the case may be) : These are therefore to command you, forthwith to bring the said A. S. before me, to answer unto the said complaint, and to be further dealt with according to law. Given under my hand and seal the— — day o f ■ in the year of the reign of The conviction may be in the general form found under the title of * Conviction.' J, ' 14. Clerks of the peace, under-sheriffs and their respective deputies, are prohibited under the like penalty, from practising at the sessions. Of the Jurisdiction of the Sessions. 1. The jurisdiction of the sessions, by the 34 Edw, 3. c. 1. ex- tended to the trying and determining all felonies and trespasses whatsoever. But now they ought not to try any greater oflence than that of simple larceny, their commission providing, that if any case of difficulty arises, they shall not proceed to judgment, but in the presence of one of the justices of the court of King's bench, or one of the judges of lissize. Consequently, murders, burglaries, and other capital felonies, are reserved for a more solemn investigation at tne assizes. The sessions have no com- mission of gaol delivery ; neither have they any jurisdiction ever forgery or perjury at common law ; It. v Gibbs, 1 East 473. li. V. ^Yarrington, 1 Salk. 406. R. v. Bninton, 2 Str. 1088. 2 Haw. c. 8. § 38. Nor over any rew created oflence, as usury ; un- less express jurisdiction is giv<^n to them by the statute creating the offence, li. v. Smith, 2 Ld. R. 1 144. 1 BL Rep. 369. 2 Salk, 680. The general words in tie commission of the peace, includ* ing all trespasses, this comprehends not only direct breaches of the peace, but also all such offences as have a tendency thereto; and on this ground, conspiracies anA libels, or any illegal solicitations, attempts or endeavours to comnit crimes, have been holden to be cognizable by the sessions. R. v. Higgins, 2 East R, 23. R. v. Summers, 3 Salk. 194. R v. Rispul, 3 Burr. 1320. 1 Bl. 369. The sessions have, like every other court, the power to fine for a contempt commillod in tiie face of the court. R. v. Davison, 4 B. &f A. 334. But they cannot award an attachment for a contempt in disobeying any uf their orders, the ordinary and proper method i stiy* &tfminuu* 415 or having an stables of the leers to whom eturn thereof, ip i\vi prison- . Ail persons jve mentioned appear, to an- 85. Burn 98. 1 aolicitort at' \ and enrolled And by §. 14. ctive deputiesj ctising at the Ito* 3. c. 1. ex- and trespasser greater oflence vidiogt that if 1 to judgment, ourt of King's enily, murder s^ red for a more have no com- irisdiclion over EasiATi. It. Sir. 1088. 2 , as usury ; un- italute creating p. 369. 2Salk, peace, includ- breaches of the ;y thereto; and al solicitations^ Ml holden to be t R, 23. It' V. 20. 1 Dl. 369. rer to fine for a VavisoUi 4 B. for a contempt proper method being hy indictment. R, v. Bartlctt^ 2 8es8, Cm. 176» iZ. r. Robinson^ 2 Burr. 800. R. v. Kingdon^ 8. East 41. A Bums J, 214. The sessions have also power to fine jurors for non-attend- ance at the court, upon proof of their having been duly summon- ed : also to comnr't to gaol any person guilty of contemptuous or disrespectful conduct in. the presence of the court. But the ses- sions have no power to imerce any justice for his non-attendante at the sessions, as the judges of assixe may for the absence of any such justice at the gaol delivery. 2 Haiv. 41. 42. Nor are justices punishable for what they do in sessions. Stnm. 173. Unless there he some manifest act of oppression, or wilful abuse of power. 2 Bamardist, 249. 2S0. Justices in quarter sessions may nlso make rules and regula- tions for the gaols, which, when approved of by a judge of the court of king's bench, shall be in fomc, 32 Gr. 3. c. 8. "^ 16.; and fix the salary of the gaoler, which shall be in lieu of all fees; lb. ^ 17. ; appoint the high-constable and other constables, in the April sessions, 33 G. 3. c. 3. ^ 1(/. ; regulate pound keepers fees, 34 G. 3. c. 8. '^i 3. ; and their charges for feeding animals im^ pounded, 43 G. 3. c. 10. § 1. ; grant certificates authorising the clergy of different congregations to solemnize matrimony, 1 W. 4. c. 1. ; nominate parish and town officers, in cases where no town meeting is held, and also where any officers appointed at the town meeting shall die or remove from the township, ai.d may fine persons for neglecting or refusing to act, after notice of their appointment, 46 Gr. 3. c. 5. ; may appoint surveyors of the high- ways in the April sessions; confirm the report of any alteration in, or new road to be made, and direct the employment of a sur- veyor of lands, if needful, and onler him a iemuneration not ex- ceeding 10s. per diem, from the district funds, and order the trea- surer to pay surveyors of highways 7?. 6d. per diem, for services, 50 G. 3. c. 1., except in cases where a road applied for is not confirmed by the sessions, 52 G. 3. c. 10. ; and under particular circumstances may direct the payment of monies from the district funds, towards any public work on the highways, when deemed expedient, not exceeding £50, nt any one time, 50 G. 3. c. 1 ^ 20. ; may proceed to out-lawry, 55 G. 3. c. 2.; 3 fV. 4. c. 2. In case of invasion, may hold the sessions at the most convenient place, 55 G. 3. c. 9. ; may grant certificates in case of the death of witnesses to deeds, &:c. of the due execution thereof, in order to their registry, 58 G. 3. c. 8. "^ 3. ; cannot take cognizance of illegal marriages, 2 G. 4. c. 11.; may appoint inspector of weights and measures, 4 G. 4. c. 16.; may assign limits to the several gaols of ihe province, 11 G. 1. c 3.; may adjourn to the 5th January, and on that day grant tavern licences, 4. G. 4. 414 Sbtmionik c. 19.— 11. O, 4. c. 9. The character of the applicant to be en- quired into, and if satisfactory to the justices, the chairman may grant certificates under his hand and seal, which shall enable the parties holding them, to take out license, on payment to the in- spector of the amount of duties imposed by law on the same, 59 G, 3. c. 2. ^ 2. — 11 Gr. 4. c. 9. <^ 3. ; and may grant certificates for tavern licenses at any other general quarter sessions in the year, 59 O. 3. c, 2. § 5. ; and make and frame rules and regula- tions for the conduct of tavern-keepers, 59 G. 3. c. 2. <^ 6. ; may appoint the district treasurer ; 59. G. 3. c. 8. ^ 18. ; who shall be removable at the pleasure of such justices, <^ 20. By 47 Gr. 3. 2. 12. "^ 2. When any person shall be convicted of any assault or misdemeanor before the sessions, he shall pay the costs of prosecution and conviction to be allowed and taxed by the court ; and when the defendant shall be acquitted, the prose- cutor, unless it shall appear there were reasonable grounds of pro- secution, to be certified by the chairman, shall pay the defendant's taxed costs. The defendant's costs upon a presentment, if the defendant be acquitted, shall be paid out of the district treasury. The proceedings at a General Quarter Sessions, The court having assembled, the session is then usually pro- claimed by a bailifi', in the following terms : " O yez ! o yez ! o yez ! the King's justices do strictly charge *< and command all manner of persons to keep silence, while the " King's commission of the peace for this district is openly read, *' upon pain of imprisonment." The commission is then read by the clerk of the peace ; then the heir and devisee act, as required by the 45 G. 3. c. 2. ^ 14. The clerk of the peace then calls upon the sherifi*, thus : *' sheriH' of the district, return the precept to you delivered," which the sherifi* does r^ccordingly. Then the grand jury are called in order, every one by his name. The foreman, by himself, lays his hand on the book, and the clerk of the peace administers to him the following oath : "Sir, — You, as foreman of this grand inquest, for the body of " this district, shall diligently inquire and true presentment make, ** of all such matters and things as shall be given you in charge. •* The King's counsel, your fellows, and your own, you shall keep "secret: you shall present no one for env}', hatred or malice ^ " neither shall you leave any one unrepresented for fear, favour *' or affection, or hope of reward ; but you shall present all things ; " truly, as they come to your knowledge, according to the best of " your understanding. — So help you God." .£bC0l9lOlllGk 415 cant to be en- chairman may lall enable the ment lo ihe in- i the same, 69 int certificates sessions in the lies and regula- c. 2. '^ 6. ; may . ; who shall be II be convicted he shall pay the 1 and taxed by tted, the prose- grounds of pro- r the defendant's sentment, if the listrict treasury. cssiona. len usually pro- ) strictly charge ilence, while the t is openly read, the peace ; then G. 3. c. 2. -^ 14. ff.thus: "sheriff ered," which the one by his name. »ok, and the clerk h: it, for the body of resentment make, >n you in charge. rn, you shall keep latred or malice ; . for fear, favour present all things: ding to the best of The re«t of the grand jury, by "three" at a time, kn order, are sworn in the following manner : " The same oath which your foreman hath taken on his part, " you and every of you shall well and truly observe and keep on " your part. — So help you God." The clerk of the peace then calls over their names thus : " Gen- " tlemen of the grand jury, e 'wer to your names and say sworn* "if you are sworn." The chairman then delivers his charge to the grand ja'ry. The bailifT is then sworn to attend the grand jury, thus : " You shall sweat' that you \v\\\ diligently attend the grand in- " quest during the present sessions, and carefully dsliver to them '* all such bills of indictment or other things, as shall be sent to ' them by the court, without alteration. — So help you God." By the 4 Gr. 4. c. 7. The claims of persons claiming under the " heir and devisee act," shall be proclaimed by the crier, at the sessions next after the notice given. The prosecutors and bait are then called in the following man- ne! (if need be) by the crier : " A. B. come Torth and prosecute and give evidence against " C. D. or you will forfeit your recognizance." Catling persons out tipon Bail. " A. B. of the township of———, come forth, save you an :all the petit jury thus: '** You good men that are impannelled to try the issue joined '* between our sovereign lord the King, and the prisoners at the ** bar, answer to your names, upon pain and peril that shall fall " thereon." When the jurors have appeared, then the clerk of the peace calls to the bar, the prisoners that are to be tried by the jury, and says thus : " These good men that you shall now hear called, are those •• that are to pass between our sovereign lord the King and you; " if, therefore, yon [or any of yon] will challenge them, or any *♦ of them, you must challenge them as they come to the book to " be sworn, before they are sworn, and you shall be heard." Then the cleri' of tlic peace calls the jury to be sworn, in cases of felony, pne by one, thus : " You shall well and truly try, and true deliverance make be- " tween our sovereign lord the King and the prisoner at the bar, ** whom you shall have in charge, and a true verdict give accord- ** ing to the evide»>':e. So help you God." But, in cases of misdemeanor, the jury may be sworn "three" at one time, thus : *' You shall well and truly try the issue joined between pur so- ** vcreign lord the King and the defendant, and a true verdict give, *• according to the evidence. So help you God." The clerk of the peace then calls over the jury, and says, — *^ Genilemei), answer to your names and say * sworn,' if you are " sworn." The prisoner being at the bar, the clerk of the peace then pro- ceeds to read the indictment, thus : " A. B. stands indicted by the name of A. B." &c. readingjhe whole of the indictment ns he did upon the arraignment, and'tben SncK^foni^ 417 •nys, " upon tliii indictment the defendant [or the prisoner at the " bar, aa the case may be] hath been arraigned, and upon his ar- '* raignment hath pleaded not guilty : your duty therefore, is to *' inquire whether he be guilty or not guilty, and to hearken to •• the evidence." — And then the court proceeds to examine the witnesses upon oath, as well for the King ns for the prisoner. Oath of Witncasts. '♦ The evidence you shall give to *'ie court and the jury swortl, '* between our sovereign lord the Kii.,^, and the defendant [or the *' prisoner at the bar, as the case may be] shall be the truth, the •• whole truth, and nothing but the truth. — So help you God." Upon the evidence being closed, in cases of larceny, the prisoner is asked by the chairman, if he has any thing to say in his defence, or any witnesses to call ; but in cases of larceny or felony, the prisoner's counsel is never allowed to address the jury in the prisoner's behalf. The prisoner himself, however, may address the jury. But in cases of misdemeanor^ such as assault and battery, and the like, the defendant's counsel may address the jury. Upon the case being closed, the chairman sums up the evidence to the jury, commenting upon it as he proceeds, shewing the consistency or inconsistency of any part of it, and the bearing it has upon the "guilt" or "innocence" of the prisoner. The chairman then desires the jury to retire and consider their verdict. Upon the jiry retiring to consider their verdict, the foiiowing oath is administered to the bailiif: " You shall swear you will keep every person of this jury toge- " ther in some private and convenient place, without meat, drink, lodging or fire (candle excepted) — you shall not suffer any person to speak to them or any of them, neither shall you speak to them yourself, unless it be to ask them, whether they are agreed upon their verdict, without leave of the court. — So help you God. When the jury return, their names are called over by the clerk of the peace, who says, "gentlemen, are you agreed on your ver- " diet ; how say you, is the defendant [or prisoner, as tiie case "may be] guilty or not guilty .?" The verdict is then endorsed by the clerk of the peace, on the indictment, and signed by the chairman, which being done, the former addressing the jury, says, "gentlemen, hearken to the ver- " diet as the court records it — you find the defendant [or prisoner] " guilty [or not guilty] ' according to the verdict. Should the defendant, however, upon being arraigned, be per- mitted to traverse to the next sessions, he may be admitted to bail, as follows : d2 . .^^mm^ 418 Sfwion??, " A n. {|irliidj)nl] you acknowledge (o owo to our novcrelgn " lord die die King, tl:o r,u(n of [ 1' , wlKUovcr «nm the court " may rxpprnvc j iiiid yon, V. 1), and K, F. [sureties] severally ac- •' luiowlfdj.ro to (;wc to otir snid lord die Kinfjj, the respective sums " of [<^ ] {Mid [ fc" — ] to he rjspeclivoly levied of your goods ** and tliattolp, Innds and tenements, to liis Majesty'^ use, by way *' of icc(){jniz;' " You shall well and truly try the issue of this traverse between *^ our sovereign lord the King, and the defendant, and a true vcr *• diet give, according^to the evidence. So help you God." Oath of Witnesses on o Traverse. = ;. ' •* The evidence you shall give to the court and jury iworn, touching the issue of this traverse, shall be the truth, the whole truth, and nothing but the truth : so help you God." '- 't'oi- Oath of Jury on Road Matters. " You shall well and truly try, and a true verdict give in the matter of a new highway or road, in the township of , re- ported by Mr. , one of the surveyors of highways for the township of — . So help you God." Sc^itjlonfj- 419 "• •* Oath of WxtnattiM on lioad Mattcrv. '• The evidence you phall rIvc to iho court and jury sworn, ' touching the matter, &.c. (same as above) sli; II be ibe truth, the "whole truth, and nothing hut tlic truth. So help yon Goil." In discharging the dofcudants rocoguizancc for (hrauit of th(? prosecutor appearint^, (which ought not to be done i il the closo vftlie session,) proclamation is made ihur. : — "Oycz ! Oycz! Oyez! " If any can say ought, why (defendant, naming him) should any " longer be bound, let them come forth and they shall be heard : '•otherwise the court docs discharge him, paying his fees." The court cannot commit for iionpaynient of fees ; for if therp is right there is a remedy ; and indebitatus assumpsit, will lie if the iee is certain, if uncertain, quantum-meruit. L. Jiaij^ 703. - When there are no more bills to be laid before the grand jury, and they have finished all other business before them, it is usual for the court to inform them that there is no other business to come before them, and that they are therefore discharged. The court having disposed of the I)usiness, then adjourn. The clerk of the peace, during the sitting of the court, enters a minute of all the proceedings, commencing with the day of the sessions, and before whom the same is held inserting the names of the grand jurors and petit jurors, and every other minute particular attend- iQg the proceedings throughout. Precept to Summon (ho Sessions. (Burn.) Home District, > J. P. and K. P., Esqtires, Justices of our to wit. > sovereign lord the King, assigned to keep the peace in the home district aforesaid, and also to hear and deter- mine divers felonies, trespasses and other misdemeanors committed in the said district ; to thesherifVof the Home district, greeting : — On the part of our sovereign lord the King, we command you, that you omit not by reason of any liberty within your district, but that you cause to come before us and other our fellow justices, assigned to keep the peace in the said district, and also, to hear and determine divers felonies, trespasses and other misdemeanors, in the said district committed, on ■■ the — i ■ ' . day of , now next ensuing, at the hour of ten, in the forenoon of the same day, at — — in the said district, twenty-four good and lawful men, of the body of your district, then and there to inquire, present, do and perform, all and singular, such thinn:s, which on the behalf of our said sovereign lord the Kiiig, shall be enjoined them ; also, that you make known to all coroners, keepers of gaols and houses of correction, high constables and bailiffs, of ^ Ijl iV n 420 S^Ci^i^iom. liberilei wUhln the district aforesaid, that they be then and there, to do and fulfil such things, which by reason of their offices, shall be to be done: moreover, that you cause to be proclaimed through the said district, in proper places, the aforesaid ses- sions of the peace, to be holdcn at the day and place afore- said ; and do you be then there, to do and execute those things which belong to your office ; and have you then there, as well the names of the jurors, coroners, keepers of gaols and of houses of correction, high constables and high bailiffs aforesaid, as also this precept. Given under our hands and seals, at • '■■ '• • • in the district aforesaid, the ■■ - day of ■ in the — — — year of the reign of ———--, &tc. TRt StUe of th6 Sessions, (Bubn.) Home District. > The general quarter sessions of the peace, holdcn 3 at " ■ , in and for the said district, on the day of « in the — — year of the reign of our sovereign lord William the Fourth, of Great Britain, France and Ireland, King defender of the faith and soforth, before J. P. and K. P. Esquires, and others, justices of our said sovereign lord the King, assigned to keep the peace in the said district, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said dis- trict committed, and soforth. Suhpcena to give Evidenu, William the Fourth, by the grace of God of the United King- dom of Great Brifltin and Ireland, King defender of the faith; to A. B., C. D. &C. greeting : We command you and every of you, that ail business being laid aside, and all excuses ceasing, you do in your proper persons appear before our justices assigned to keep our peace in the district, and also to hear and determine di- vers felonies, trespasses, and other misdemeanors in our said dis- trict committed, at the general quarter sessions of the peace, to be holden at , in and for the said district, on — — the- day of now next ensuing, at the hour of o'clock in the fore- noon of the same day, to testify the truth and give evidence bvfore the grand inquest as well as the court, touching a bill of indict- ment to be preferred against A. O. in a case of larceny, [trespass and assault, or any other cognizable offence,] and this you, and every of you, are in no wise to omit, under the penalty of pounds for you and every of you. Witness, J. P. Esquire, the Sfirrffr* 421 ;n and there, offices, shall J proclaimed iforesaid ses- place afore- those tbhigs here, as well and of houses aforesaid, as lis, at • in the peace, holdcn ct, on the sovereign lord Ireland, King ;. P. Esquires, ig, assigned to and determine in the said dis- united King- >f the faith; to ievery of you, jasing, you do isigned to keep I determine di- I our said dis- le peace, to be -the day ock in tlie fore- videhce b .fore bill of indict- ceny, [trespass this you, and enalty of — — Esquire, the " *" A Subpcena Ticket for a Witneii. Mr. A. W. — By virtue of a writ of subpoena tu you and others directed and herewith shewn unto you, you are required person- ally to be and appear at the next general quarter sessions of tho peace, to be holden at — — , in and for the — — • district, to testify the truth, and give evidence before the grand inquest as well as the court, touching a bill of indictment to be preferred against A. O. in a case of larceny, \_trespass and assaultt ^c. as the case may be,"] and herein you are not to fail upon pain of — — - pounds. Da^ led the — — day of——, in the year of our Lord — — ♦ SHERIFF. The Sheriff is an officer of very great antiquity, his name being derived from the Saxon word scirgerefa, signil'ying (he reeve bailiff, or officer of the shire. He is called in latin, vice-comes^ n* being the deputy of the earl or coines, to whom the custody of the shires in England is suid to have been committed at the first divi- sion of the kingdom into counties: but, though tho sheriff be still called vice-comes, yet he is entirely independent of the earl ; the king, by his letters patent, committing cttstodiam comilaius tu the sheriff, and to him alone. 1 Bl. Com. 339. 5 Burn. 230. In this province, the sheriff is appointed by letters patent under (he great seal, and holds his office during pleasure. As a conservator of the peace, he may apprehend and commit to prison all persons who break the peace, or attempt to break it, aud may bind any one in a recognisance to keep the peace : he is bound, eX'Oj/icio, to pursue and take all truitodV,, murderers, felons and other misdoers, and r ^mmit them to gaol for safe custody : he is also bound to defend his county against any of the King's ene- mies, when they come into the land ; and for this purpose, us well as for keeping the peace and pursuing felon? he may command all the people of his county to attend him, whicn is called the posse comitatus, or power of the county ; and this summons, every per- son above the age of fifteen years arid under the degree of ajpcer, h bound to attend, Mpon warning, under pain of fine and impri- sonment. Itii his ininisteiiul capacity, the slieriff is bound to execute all process issuing from the King's courts of justice. In the com- mencen)ent of civil causes he is to serve the writ, to arrest, and to take bail : when the cause comes on to trial, he must summon and return the jury: when it is determined, ho must see the judgment i)f the court carried into execuiion. In criminal matters ho also arrests and imprisons; ho returns the jury; he has the custoiiy of the delinquent, and he is bound to execute the sentence of tine 422 ^fietricr. > j! court, tiiuugl) it extent! to death itself; and it is no excuse to the sheriff to return, that he could not execute any process because of resistance, for he may take with him, in every case of need, the power of the county, to enforce obedience to the king*s writs or other process of the law. 13 Ed. 1. Stat. 1. c, 39. He is also compelled to execute the warrant of a justice of the peace, if upon any extraordinary occasion it should be directed to him, though magistrates warrants are, in practice, usually directed to conista- bles and other inferior officers ; but he need not go in person to execute it, but may authorise another to do so. 2 Raw. c, 13. ^ 29. He is also bound to attend the sessions of the peace, there to return his precepts ; to take charge of the prisoners ; to receive fines for the king, and the like. 2 tlaw. c. 8. ^ 45. And for any default in executing the writs or precepts of the sessions, he is punishable by the justices in sessions, as for a contempt. Id. c. 22. ^2. The siicriff has also the keeping of the gaols, and is answerable for all escapes suflered by the gaolers, to the king, if it be a crimi- nal matter ; or in a civil cause, to the party injured : and by pro- vincial statute, tiie 32 G. 3. c. 8. he has the appointment and removal of the gaoler. As the Kiiig^s hailifff it is the business of the sheriif to preserve the rights of the king wiUiiii his bailiwick. Foriescuc, c. 24. He must seize to the king's use, all lands devolved to the crown by attainder or t:Hchcaf. J Bl. Com. 344. Dy 3 G. 1. c. 15. ^ 17. A sheriff guilty of extortion forfeits, to the party grieved, treble damages, and double the sum extorted, and also £200. And by provincial statute, 2 G. 4. c. 0. ashciiff lying in gaol for debt three months forfeits his oflice. When a new sheriff is appointed and s^vorn, his predecessor (or in case of his decease, his under sheriff,) sets over by indenture, all the prisoners in the gaol severally by their names, together with all the writs, wherein must be comprehended all the actions which the old sheriff hath against every prisoner ; and till the delivery of the prisoners to the new sheriff they remain in custody of the old sheriff. Wood's hisf. C. 1. c. 7. *' ' ' '^^ . By the 3 fV. 4. c. 9. entitled "an net to ma|je certain regula- tions relating to tiie office of shciiff in this province, and to require the several sheriffs of this province to give security for the due ful- filment of the duties of their office," — it is enacted by ^ 1. that the sheriff of each district shall enter into a bond to his Majesty, in the penal sum of .£1,000, together with two sureties to be ap- proved by the inspector general of piitjlic accounts, in £500 each, for the payment of all monies due to Uic crown ; which bond shall be in the form given in schedule A. or in words to the like cftert, ^S c^ficvifT, *>'i 42i xcuse to the s because of of need, the ng's writs or He is also eace, if upon him, though ed to conista- in person to iaw. c, 13. § eace, there to I ; to receive And for any issions, he is ipt. Id> c. 22. is answerable ' it be a crimi- : and by pro- ointment and iir to preserve [c, c. 24. He ihe crown by ion forfeits, to sum extorted, . c. 9. a bhciilT :e. iredecessor (or y indenture, all together with > actions which the delivery of tody of the old certain rcgula , and to require for the due ful- by ^ 1 . that the his Majesty, in reties to be ap- , in £500 each, hich bond shall ) the like cftcrt. ^ 2. The sheriff of every district shall aiao provitlo two or four sudicient sureties who, with himself, shaii enter into n covenant under seal, joint nnd several, nccorditif^ to the form in schedule ^ll JJ. or in words to the same oftect; whicli covenant shall be avail- able to, and may be sued upon by any iicrson snfl'ering damages by the default of any such shcrilf, ^^ 3. Sueli sureties shall be approved of by the justices in session, and a certificate thereof j^iven by the chairman. >^ 4. The bond to his Majesty shall bo deposited with the inspector general, and the covenant shall be made in duplicate, one of which shall be deposited with the secre- tary of the province, and the other filed wiUi the clerk of the peace. ^ 5, Any person may examine such covenant, and have a copy vn payment of Is. 3d. for die examination, and 5s. fok' the copy, to the clerk of the peace. <^ G. That such bond and covenant shall be renewed every four years, cither with the same or other sutfi- cient sureties, to be certified as aforesaid. '^ 7. Whenever the ofiice of sheriiF shall become vacant, his successor shall not be ap- pointed until he has first filed the requisite covenant and bond, with sureties. <^ 8. And no person shall be appointed sheriif who shall not be possessed of real estate in this province, of the actual value of £150 above incumbrances ; aiul shall, before he receives hi> commission, file an affidavit of the fact, in the ollirc of the secre- tary, "o be sworn before the tliairman of the quarter sessions. -^ 9. 2 3 of death, absence from the province, or Mjsolvency of anv \\i:'-iy, new securities shall be given. ^^ 10. The sureties ap- prehensive of the insolvency of their piiaclj.d, tnay notily the same to the lieutenant governor by afiidavit to this effect, sworn before u commissioner of the K. IJ. and thereupon the sheriff shall be notified by the secretary, to furnish new security, or on affidavit deny that he is so insolvent, or worth less than .£750 over and above all incumbrances ; and if such requisition be not complied with, within one month after the sitting of the then ensuing quar- ter sessions of the district, he shall be removed from office. ^ 1 1* When any new sureties shall be given, the former sureties shall not be discharged from any defaults previous thereto. «^ 12. Ac- tions brought on the sheriff's covenant, shall not bar other actions on the same covenant for other causes. *§ 13. Any surety having paid the full amount for which he beeanie liable, sliall be thereby discharged; and the sheriff shall, within four months, ^ive new securities. ^14. If the damages recovered and paid by any to the amount for which lie is bound, iudirmcni irety eqi maybe obtained against hiui for atiy rciiJue. ■§ 15. Upon proof by affidavit or otherwise, to t!ie creneral quarter sessions, that any security has been disciiarged, or is insuivent. it sliall be lawfiil for the sPSAions to notifv tlie sheriff thereof, niid such slscriff shall re- 424 ^trtf. s nevr the covenant within four monthg ailer such notice. ^ 16. Ex- ecutions against the sheriff and his sureties sliall be first levied upon the sheriff. ^17. The sheriff shall be liable to pay the costs of all rules upon him, unless the court shall order otherwise ; but in vexatious applications, the court may award costs to the sheriff. ^ 18. The sheriff shall nut be entitled to any fees on any writ, placed in his hands fifteen days before the return day, if he does not return the same to the attorney within four days after such re- return, ot* endorse the same by post, within that time, to such at- torney. ^ 19. Any sheriff neglecting to give the required secu- rity shall be removed from ofiice. ^ 20. The covenants to be entered into by the sheriffs of the several districts, shall specify the following sums as the extent thereof, viz. : — sheriffs of the Home district — district of Niagara — district of Gore — district of Lon- don — district of Newcastle — Midland district — district of Johns- town — Eastern district, in the sum of £1000. each, and two sureties in X500. each, or four sureties in £250. each ; and the sheriffs of the Western district — district of Bathurst — district of Ottawa, in the sum of £500. each, and two sureties in £250. each, or four sureties in £125. each; and that the sheriff of any new district hereafter to be formed, shall give security, himself in £1000, and two sureties in £500. each, or four sureties in £250. eaci ^ 21. The sureties entering into any such covenant shall be held liable for any emission or default of the sheriff, in not pay- ing over monies received by him, and for damages sustained by the parties to any legal proceeding, in consequence of wilful! or negligent misconduct in office, arid that the bheriff shall be joined in any action against the sureties. <^ 22. Notwithstanding any forfeiture of office, the sheriff shall be continued in ofiice until tise appointment of his successor, subject to his prior liabilities. <^ 23. Upon the death of any sheriff the deputy sheriff shall continue io execute the ofiice in his name, until the appointment of a succes- sor, and such deputy sheriff shall be held responsible, as the sheriff deceased would have been, and the deceased sheriO''s sureties shall also stand as a security for such under sheriff. •,* i SCHEDULE A.—Ftfrwt of Bond to the King. Know all men by these presents, that we, A. B. sheriff of the district of——, C. D. of , in the district of——. Esquire, and E. F. of , in the district of——, ore held nnd firmly bound to our sovereign lord the King, his heirs and successors, in the several sums following, that is to say: — the said A. B. in the sum of one thousand pounda ; the said C. D. in ilie sum of five hundred pounds ; and the said E. F. in the sum of five hundred pounds I to be paid to our sovereign lord the King, his heirs and Sktttifi. 425 ^ 16. Ex- firdt levied ay (he costs irwise; but I the sheriiT. II any writ, if he does ler such re- to such at- |uired secu- nants to be I specify the r the Home icl of Lon- t of Johns- I, and two :h ; and the — dtstricl of £250. each, of any new , liimself :n ies in .£250. vcnaul shall , in not pay- ustained by of wilful I or ill be joined landing any ice until toe ilies. "^ 23. continue io of a succcs- as the sherilV itf's sureties iheritf of the — , Esquiro, I nnd fn'mly juoct'ssors, in A. B. in the ; sum of five five hundred hiii lieirs and successors, (ov which payments to be well and truly made, we bhid ourselves severally and respectively, and each of us, hid heirs, ex- ecutors and administrators, firmly by these presents, sdaled with our seals, and dated this — — day of — — -, in the year of our Lord ' ■. - The condition of this obligation is such, that if the above bnun- den A. B. his executors or administrators, shall well and faithfully account for, and pay over to his Majesty's receiver-general of this province?, or to such person as may be authorised to receive the same, 'ill such sum and sums of money as he shall receive as such slierifT IS aforesaid, for our said lord the King, his heirs or succes- sors, from the date of this obligation until the day of , in the year of our Lord — — (four years,) then this obligation tO' be void, otherwise to remain in full force and virtue. [L. S.] L. s.j s.j ■ mil \)i\£ .,;•;-■•■;: V. .: !■!•;-:./- Signed and delivered in presence of' SCHEDULE B.— Form of Cavenant. Know all men by these presents, that we, A. B. sherifi* of the district of , C. D. of—, in the district of , and E. F. of——, in the district of , (when four sureties are given, the names of the other two to be inserted in like manner) do hereby jomlly and severally, for ourselves, and for each of our heirs, ex- ecutors and administrators, covenant and promise, that A. B. as' shorifi' of the said district, shall well and duly pay over to the per- son or persons entitled to the same, a!l such monies as he shidt receive by virtue of hi« said office of sheriff, from the date of this covenant to the expiration of four years thence n^xt encuiiig, and that neither he nor his deputy shall, within that period, wilfully misconduct himself in his said office, to the damage of any person being a party in any legal proceeding : neveriheless, it is hereby' declared, that no greater sum shall be recovered under this cove- nant, against the several parlies thereto, than as fallows, that is to say Against the said A. B. in tlie whole — - Against the said C. D. Against the said E. F i * (If Other sureties, add them in like manner.) In witness whereof, we have lo these presents set our hands and seals, this day of , in the year of our Lord' . [L. S.] fL. S.] "• Signed, sealed and dflivered, in the j)rcscnco of. 4'2i} U4 Ui SHIPS. 'Jl V-Ji Uy statute 1 An. e. 9. if any ship oiiiccr shall wlllully burn the ship to which hu Ueh)ngcih, or procure the same to be done, to the prejudice of the owner of the ship or goods, he shall be guilty of feloiiv, without benef of clergy. _ ..,,.. ». . . SHOPKEEPERS. ^ >!VV|n*i<> (; • •. , 3.;;, >, By Statute 37 G. 3. c. 11. fivery shop-keeper, or other person iselling any wine, brandy, rum, or other spirituous licpiors, in less quantity than 3 gallons at any one time, shall take out a license, (from the inspector of the district, by the 43 G. 3. c. 9.) upon payment of the like rates, duties and fees, as were then paid by any person licensed to keep a house of public entertainment ; and any person selling any wine, rum, brandy, or other spirituous liquor, in less than three gallons, without such license, shall in- cur the penalty of £20, one moiety thereof to be paid to the in- former, and the other to the receiver general, for the use of the province, to be recovered in the manner and form set forth in the 34 a. 3. c. 12. By the 40 G. 3. c. 4. ^ 3. No licensed shop-keeper shall sell less than one quart, under the penalty of .€20, lo be recovered before three justices, anil levied, with costs of suit, by distress and sale — onn half of the penally to the informer, and the other to the use of the province ; and in default, the ofl'endcr shall be committed for a time not exceeding three calendar months. ^ 4. Prosecution to be commenced wilhl.i six months. By 2 JV. 4. c. 20. After reciting that the 54 G. 3, entitled, " an act to grant an additional duty on shop and tavern licenses," had expired, and that it was expedient to coiKinue the same, and to require persons selling wines or spirituous liquors on board of steam-boats to pay an additional duty — it is enacted that, in ad- dition to the sum of £1 IGs. sterling, and 20s. currency, requi- red by law for a shop-keeper's license, there shall be paid the further sum of £2 currency. Sec. 2. And every person selling wine, brandy, or spirituous liquors, on board of any steam vessel, shall be entitled to a license, without entering into bonds or re- cognizance to keep an inn, upon payment of £2, in addition to Xl IGs s* ;rling, and 20i. currency, now required to be paid by law. Sec. 3. Any person selling wines or spirituous liquors on bonrd of any steam-boat wiiljout having obtained such license, fihitil be ?nbjcct to nil the pciiaiiics impoi-ed by law for selling: without a license. Sec. 0. Act lo be in force four yea.?, and to the end of the next ?es5.on. ^ijov^iittmi't^' 49.7 By the 4 IV. 4. c. 50. the above act of the 2 fV. 4. c. 20. is continued and made pcitnancnt. By the 4 IV. 4. c. 13. Entitled, "on act to prevent the con- sumption of spirituous liquors in shops," it is enacted by ^ 1. that no licensed shop-keeper shall allow any wine, brandy, rum, or other spirituous ^k rors sold by him, to be consumed within his shop, or within the building of which such shop is part. By "^ 2. Under the penalty of £5, to be recovered before three justices of the peace, upon the oath of one witness, (not the informer) with costs, and to be applied in the same manner as the penalty for selling by retail without license. Sec. ^. And any purchaser consuming the same in such shop or building, shall be liable to the same penalty, recov< able in the same manner. Sec. 4, Ex- empts such persons as to ihc justices shall appear not to have been intentionally guilty of the offence. Sec. 5. Prosecution to be within six calendar months. Sec. G. This act to continue in force four years, a.id to the end of the next session. -'<;, Information for selling less than one quart. — Penalty £20. See 10 Q. 3. c. 4. Home District, ) Be it remembered, that on the — — day of to wit. 5 , in the year of our l^ord, — — at in the said distvict, C. L). of— ^ , in the district aforesaid, labourer, who as well for our sovereign lord the King as for himself, doih prosecute in thia behalf, person;illy cometli before us, three of his Majesty's justices of the po^cc for the said district, and informeth us, that A. B. iate ol in the said district, merchant, being a shop-keeper duly licensed to sell wine, brandy, rum and other spirituous liquors by retail, witijin ihti space of calendar months, now last pa^i, to wit : on the day of , in the year afore- said, at the township aforesaid, in the district aforesaid, did sell and vend unto one E. F. a certain quantity of [wine, brandy or rum, fiic] in less quantity than one quart, to wit : one pint of [wine, •1 &c.] contrary to the form of the statute, &tc. (concluding as in the form izivcn in p. 239.) See also title " Summons." Conviction 'jr.!..' a^; • In the general form, given by the 2 W. 4. c. 4. - ^' ■ '■'■' ' N. B.— The infurruation should not be upon onlh. •-..', ../. Information against a Shop-keeper for allowing Spirituous Liquors to he consumed within his prrmiscn. — Penalty^ £5. — ^ W. 4. r. IS. Commencement ctf before] tint A. B. latoof- in the said district, being n shop-kccpor, duly licensed To sell wine, brandy, MM !' If 1* -^1* ■w 42B SbOl^Uttl. rum and other iptritiious liquors, ifUhIa the ipace of 6 monthi, now last past, to wit : on the — — day of — , in ihe year aforesaid, knowingly, willingly and intentionally, did allow a cer- tain quantity, to wit : one pint of {wine, brandy, Sfc."] parcel of one quart of [wine, brandy, &c.] which he the said A. B. had then immediately b ;fore, to wit : on the day and year last afore- said, at the township aforesaid, in the district aforesaid, sold and delivered to one Q. H. to be drunk and consumed within the shop of him, the said A. B. situate at the township aforesaid, in the district aforesaid, by him the said G. H. the purcliaser thereof, contrary to the statute, &cc. [conclude as in the last Jorm.'\ .\'\ Information against a Purchassr, under the same statute.-^Penalty, £5. Commewemeni as before"] that G. H. district, having on the — — — day of — late of in the said in the year aforesaid, purchased of and from one A. B. late of the same place, being a shop-keeper, duly licensed to sell wuie, brandy, rum and other spirituous .liquor, a certain quantity, to wit : one quart of wine, afterwards and within the space of calendar months, now last past, to wit : on the day and year last aforesaid, at the township aforesaid, in the district aforesaid, did consume one pint of wine, parcel of the said wine, so purchased by hiai as aforesaid, in the shop of him, the said A. B. there situate without the permission of him, the said A. B. contrary to the form of the statute, Uc. (as before.) ... , .,.,.: SOLDIERS. Bv stat. 2. &f 3. Anne, entitled, " an act for punishing mutiny, " desertion and false musters, and for better payment of the army, **and their quarters, &c." it is enacted, that if any officer or sol- dier, in her Majesty^s army, shall either upon land, out of Eng- land, or upon sea, hold correspondence with any rebel, or enemy of her Majesty, or give them advice or intelligence, either by let- ters, messages, signs or tokens, or any manner of way whatsoever, or shall treat with such rebels, or enemies, or enter into any con- dition with them, without her Majesty's licence, or licence of the general, lieutenant-general, or chief commander, then every such person, so offending, shall be deemed and adjudged to be guilty of high treason, and s^ifier such pains and penalties as in case of high treaysi:;. By thi r. 3. c. 2. It is enacted, that if any person (except- ing soldier ; shall, by words or with money, or by any other mtans, directly or indirectly, prevail upon, or attempt to prevail i ■ s^mi^ 429 r 6 montlii, in ihe year ollow a cer- f.] parcel of A. B. had r last afore- id, sold and hin the shop >aatd, in the iser thereof, form.'] A't .FenaUtf,£6. - in the said nr aforesaid, ace, being a in and oiher lart of wine, hs, now last tlie township pint of wine, esaid, in the ic permission lute, &ic. (as , 1 upon, procure, psrsuade or encourage, any soldier to deser;, or leave his Majesty's service, he shall, upon conviction, be committed to the common gaol of the district, where such offender shall be sued, without bail or maiu-prize, for 6 calendar months ; and if the court shall think proper, pay a sum not exceeding JC40, oijd if not paid on or before the ti:ifd day previous to the expiration of such irt prisonment, such offender shall be publicly whipped. % 2. Any person harboring deserters, shall forfeit £20, and in default, be committed for three calendar months, unless such fine shall be sooner paid. ^ 3. Prosecution to be commenced within 6 calen- dar mtinihs, unless the offender shall be absent from the province, then within 6 months after his return, and the issuing of a warrant shall be deemed the commencement of a prosecution. ^ 4. Any one justice, on due proof upon oath^ may issue his warrant to apprehend such offenders, and commit him for tria!i, unless he shall procure two g;iod and sufficient sureties to the satisfaction of the said justice, in manner hereinafter specified, viz : if the said r.ffender shall be charged with any offence under the first section of this act, then such offender shall be bound in £200, and each of the sureties in £100; and for any offence under the second section, then in the sum of £40, and each of the sureties in £20, for the ap- pearance of such offender at the next assizes, or session of oyer and terminer and general gaol delivery. % 6. AH fines recovered under this act, shall be applied to the use of the province. By the 3 W» 4. c. 4. Entitled, '* an act to reduce the number of cases in whkh capital punishment may be inflicted, &:c.," it is enacted by % 14. That nothing in this act shall affect any of the provisions of the 2^3 Amu, hing mutiny, of the army, officer or sol- out of Eng- >el, or enemy either by let- y whatsoever, into any con- icence of the n every such 1 to be guilty as in case of frson (except- by any other npt to prevnil f SkMU; .H->'. ii.t- V STILLS. By the 34 G. 3. c. 11. Entitled, "an act to lay and collect a duty upon stills," a duty of Is. 3^. per gallon is laid upon stills. % 3. No still shall be used until the owner thereof, shall be duly ^ licensed, and any person desirous of obtaining a license, shall, in ■' a written requisition, specify and set forth the number of gallons which the body of such still contains ; and in case any person shall use any still without having obtained such license, or shall use any of larger dimensions than that specified in his license, or shall have in his possession any siill erected or set up over a fur* nace or fire-place, so as the same may be used for distilling, capa- ble of containing singly or together, a greater number of gallons in the body or bodies thereof, than specified in his license, and be thereof convicted, on the oath of one witness, before any justice, he shall forfeit for every offence, £10, to be levied by distress and i; 430 S?t(U<(j. '1 *\ •ii ««nle, one half of which penalty shall be paid to the Informer, anrt ihe other lo the receiver general, for the use of the province, ani) the still so employed shall he forftilod to his IMajosiy, and the ol fender shall be incapable of having another license for three years. *§> 4. Such licenses shall be issued by the secretary, (rcpcnlcO by 43 6". 3. c. II.) and the requisition may be in the following form : " I, A. 13. do require a license for using a still, the body of •' which is capable of containing ' gallons, und no more, *' [and in case more' than one still is intended to be used] and *' also for another still, the body of which is capable of containinp, " gallons, and no more, for the year ensuing the 'fifth of "April next ; as witness my baud, A. J.». this -' day of——." •' To the secretary of the province of Upper Canada, or his '• agent Hot ihc district." /O ..ft t I'- Sec. 5. Such requisition shall he filed by the secretary, or his agent, who shall grant a copy upon application, to any person, on payment of one shilling ; wiiich copy shall be signed by the secre- tary, and be held and taken as lawful evidence. ^ 6. Applications for such licenses shall be made on or before Ihc 5th April, annnal- ly, (altered by ihc 45 Gr. 3. c. 1. to the 5th of January^) and the secretary shall give notice in the U. C. Gaxctte, ai least one month before. Sec. 8. — 2s. Qd. to be paid for such license, and no more. Sec. 9. No license shall be granted for any still containing less than 10 gallons, and any person working any such still shall forfeit jGlO, lo be recovered on the oath of one witness before any justice ; one half of the penalty to be paid to the informer, and the other to the receiver general, for the use of the province. Sec. 10. Any justice may, upon oath of the fact being made, grant a search warrant to a peace oflicer, taking with him the party making iho oath, and any one other person to examine any still, said to con- tain a greater number of gallons in the body than specified in the license ; but such warrant shall not be executed before sun-rise, nor after sun-set. Sec. 11. Distillers not to sell less than three gallons. By the 43 G. 3. c. 9. So much of the 34 G. 3. c. 11. as au- thorises the secretary to distybute licenses, S^c. is repealed. Sec. 2. Such license shall be issued by the inspector of the district. — Sec. 3. Under the same restrictions and penalties, and in the same manner and form us prescribed by said act of the 34 G. 3. c. 11. Sec. 4. And it shall be the duty of the inspector to ascertain by every means in his power, any person or persons having in his, her, or their possession any s;i!l or stills without being duly licensed, or using stills of a larger capacity than mentioned in the license, and to proceed against the parties for the penalties. Dy the 44 Q. 3 c. 7. Notice in writing must be given within -StiUe. 4iH Canada, or his W d'lys nftcr the dcrpagp of the pirty licensed, by the executor, Sic. to the inspector (or n license t'nv the remniiiflcr of the term bo- jorc he shall he cnilllcd to indorsation of snid license. Sec. 3. And thereupon iIk,' fninc may he indorrcd ijy ihc inspector. Sec. 2. No- tice in writinuf shrxll ho given to the inspector upon the removal o{ any still. Sec. 4. Inspector anihorised upon giving six hours notice, or when the still shall not be charged, to enter any still- house and measure the still as often as he shall sec cause, and the owner refusing admittance, and being convicted upon the oath of the inspector, or otheruise, before any justice in the district, shall forfeit £25 to the use of the province, to be levied by distress and sale, and in dofnult thereof, commitment to the common gaol, or to the custody of the sherilV without bail or main-prize, for three calendar months : sul))cct to an appeal to the next quarter sessions, the defendant giving good security to the satisfaction of the con- victing magistrate for payment of the penalty and costs, to prosecute such appeal ; and the determination of the sessions shall be final. By the 45 6*. 3. c. I. Licenses for stills to be granted and to commence in future on the 5ih of January. By the 59 G. 3. c. 17. Nothing contained in a certain act in the 58 G. 3. c. 1. imposing a duty on wines, ^c. shall extend to prohibit any person from selling in the usual manner such liquors as they distil or raise upon their own farms, or to prohibit any per- son duly licensed to distil spirituoiis liquors, from selling such liquors without taking out the license required by this act. By the 59 G. 3. c, 6. An additional duty of Is. 3d. per gallon is imposed upon stills. <^ 2. To be levied in the same manner and under the same penalties as by any former act. '^ 3. And every wooden still used as a boiler or receiver for the beer or wash, shall be guaged, and the duty paid on the whole number of gallons. ^ 6. This act to continue in force for the space of two years, &lc. By 4 G. 4. c. 13. *^ I. Every wooden still used for tlie distilla- tion of spirituous liquors shall be measured or guaged, and liable to the duties as hereinafter mentioned. Sec. 2. Every requisition for a wooden still shall express the number of gallons, and be in the following form. , t v: ^i* *< I, A. B. do require a license to work one wooden still, the entire capacity of which, by admeasurement, (or being guaged as the case may be) is capable of containing — — gallons, ahd no more. As witness my hand this — — day of . A. B. owner and proprietor of the said still. To J. L. inspector of the district. Which requisition shall be fded and preserved by thi» inspector. Sec. 3. One-half ojdy of the entire contents of such woode' still 4fi2 skum. I iih«ll be liable to the dutle« : provided that every wooden Mill hHr- ing an additional tub or vessel, whether on ihe top or otherwise attached to such still, serving the purpose of a cap or receiver of steam, and also every tub that shall be separated into different di- visions, for the purpose of receiving and running the low wines, or fur healing and preparing Ihe beer or wash for charging such still, or that may be so divided for any purpose whatever, every such tub or wooden still shall be charged with the duties upon tix? whole capacity of the same. Soc. 4. In order to ascertain the capacity of any still, the inspector is authorised to bore one or more holes in such wooden still or stills, not exceeding two inches in diameter, to measure or gunge the same; provided nevertheless, that every still specified in the requisition to have been measured or guaged, shall be measured or guaged. Sec. 5. Any person using or working any wooden still, without a license, or using any other, or larger wooden still, or who shall have or use any tub or vesiel as a cap, or otherwise attached to any such wooden still, with any false head therein, by which the saiue shall be separated into different divisions, and shall not state the same in the requisi- tiou, and shall be convicted before any two justices of the district, shall be liable to all the pains, penalties, and forfeitures mentioned in any former act. Sec. 6. The tub or receiver of the beer or wash only, shall be deemed to be a still subject to the duties. Sec. 7. In addition to the duty of Is. 3d. per gallon, now raised, the further sum of Is. 3d. per gallon shall be raised and levied on all stills. Sec. S. To be raised, levied, collected and paid, in (lie same manner and under the same penalties as are imposed by nny former act. Sec. 12. This act to continue in force until the 5th of January ]627, and to the end of the next session, [continued by the 9 O, 4. c. 9. for four years Uc."] and again [continued by the 4 fV, 4. c. 49. for four years Sec] JPort/n of an Information against a party ^ for u»ing a Still teithout being duly Licensed. — Penalty £lO. 34. G. 3. e. 11. Home District, > Be it remembered, that on the day of to wit. ) in the year of our Lord at — — in tlio said district, A. B. of inspector of the said district, who as well for our sovereign lord the king as for himself, doth prosecute in this behalf, personally cometh before n:e J. P. esquire, one of his Majesty's justices of the peace for the said district, and as well (br our said lord the king as for himself, informeth me, that C. i>. late of the township of in the said district, distiller, wiiliii) the space of six months now last past, to wit, on the day of ■■ in the 3Tar aforesaid, at the township aforesaid, in the dis- &tmu. 433 trict aforeiaid, did ui<>, and cause and procure to be used, a cer- tain still, for the purpose ofdistilling spirits for sale, without having been first duly licensed, contrary to the form of the statute in such case made and provided, whereby &ic. [conclude as in the form given ante p. 239]. For using a Still of larger dimensions than expressed in the License. Penalty £lO. 34 G, 3. c. 11. Commencement as before] That C. D. late of the township of-^— in the said district, yeoman, being a person duly licensed to use a certain still, to wit, a still of the capacity of — — gallons, for the distillation of spirituous liquors, from the fifth day of January now last past, for the space of one year then next ensuing, in the dis- trict aforesaid, and while such license was in force, to wit, on the -fc -i day of— — in the year aforesaid, at the township aforesaid, in the district aforesaid, did use, and cause and procure to be used, a certain still for the purpose ofdistilling spirits, jf larger dimen- sions than the still specified in his license, as aforesaid, (or had in his possession a certain still, erected and set up over a Airnare (or fire-place) so that the same might be used for distill ng, an<^ capa- ble of containing a greater number of gallons in the body thereof, than thenumber of gallons specified in his license as aforesaid,) :o wit, of the dimensions of gallons, contrary to xh'*. fo*'no of the statute, &c. [as in the last form.] ^ . « Information against a Parti/ for refusing admittance to an Inspector^ to measure a Still. — Penalty J&25. 44 G. 3. c. 7. § 4. Commencement as before"] That C. D. late of the township of — — in the said district, yeoman, being a person duly licensed to use a certain still for distilling spirituous liquors, from the fifth day of January now last past, for the space of one whole year then next ensuing, and having in his possession a certain still for dis- tilling spirituous liquors, while such license was in force, to wit, on the — — day of in the year aforesaid, in a certain still-house in the possession of him the said C* D. at thi t3''vnship aforesaid, ill the district aforesaid, did on the day and yt:>'s last aforesaid, at the township aforesaid, in the district aforesaid, refuse to admit the said A. B. then and there being and demanding admission into such still-house, as such inspector as aforesaid, to measure the said still, so being therein as aforesaid, the said still last mentioned not then being charged, (or he the said A. B. having given due notice to the said C. D. the proprietor of the same, of his intention to measure the same,) contrary to the form of the statute he, [con- chtde as before.] d2 ' - r:^i rfii f If m pm i 1 W^m i 1 i 1 434 * L dumnmrfi 3^nf0limnit tfJ. ^l\)V The " Suinmons, * Conviction,'* and other formi, will be found under their respective titles. \'----- Recognixance to Prosecute an Appeal^ under the 44 O, 9. e, 7 See title "Appeal," ante p. 18. SuBPCENA. — See the form of one undertitle 'Sessions,' aniep,4ll. SUMMAliY PUNISHMENT. oa ^r By the 4 W. 4. c, 4, ^ 1. It is enacted that if any person shall assault or beat any other person, any justice of the peace may hear and determine the offence ; and upon conviction, the offender shall pay any sum, not exceeding £5, in the discretion of the justice. ^ 2. But if the assault was made with intent to commit felony, or if otherwise a fit subject for prosecution by indictment, the case shall then be dealt with as before the passing of this act. <^ 3. If any person shall wilfully or maliciously commit any damage, injury or spoil, to or upon any real or personal property whatsoever, either of a public or private nature, (not amounting to felony,) he shall, on conviction, forfeit any sum not exceeding £&» at the discretion of the justice, to be paid to the party aggrieved, except when such party shall have been examined in proof of the offence : the act, however, excepts any party trespassing under a fair claim of right. ^ 5. any person found committing trespass may be apprehended without a warrant, by any pence officer, owner, or authorised ser- vant. ^6. Any person wilfully disturbing any religious congre- gation by rude and indecent behaviour, or noise, either within the place of worship, or so near as to disturb the meeting, upon con< viction before one justice, on the oath of one or more witnesses, shall forfeit any sum not exceeding JC5, as the justice shall think fit ; ^ 7. To be levied, with costs, by distress, and in default, commitment to the common gaol for any term not exceeding one month, unless sooner paid. ^ 8. Prosecutions under this act to be commenced within three calendar months. <^ 9. Directs that the party shall be summoned, and in case of non-appearance, the justice may proceed exparte. <^ 10. Enacts tjiat any person, preferring a frivolous charge, shall pay the costs, which shall be levied by distress ; and if no distress, the party shall be committed for any term not exceeding ten days. <^ 1 1. The certificate thereof to be in the following form : " Be it remembered, that on the — — day of , in the year " of our Lord , at — — , in the county of , (or district, " riding, or division, as the case may be,) A. B. of , wai I I abtimnintfi 39ttififii|imciU* 435 I, will be found " brought before me, C. D. one of his Majesty's justices of the *i peace for the said county, (or district, riding, or division, as the '* case may be,) upon a charge preferred against hiin by E. F. of « _ — , (specify the offence and the time and place when and where « the same is alleged to have been committed,) and upon investi- «< gating such charge I have dismissed the same ;^and I order and " adjudge the said £. F. to pay the sum of ior costs, and in •< default of payment thereof immediately', that there be levied of " the goods and chattels of the said E. F. the said sum of — -^i « within days from the date thereof; and Fn case there shall *' be no gootis or chattels found of the said E. F. whereof the " amount can be made at the time aforesaid, then that the said E. " F. be (or on or before the day of nexi) imprisoned in " the common gaol of the said county of , (or district, riding, " or division, as the case may be,) for the space of—— days, un- ** less the same shall be sooner paid. Given under my hand and " seal, the day and year first above mentioned." By ^ 12. Persons convicted under this act shall be released from further prosecution for the same offence. "^ 13. And aiders and abettors punished as principals. <^ 14. Persons convicted may be discharged from such conviction, upon making satisfaction to the party injured. ^ IS. Conviction to be in the following form : " Be it remembered, that on the • — - day of — ^ — , in the year " of our Lord , at , in the county of , (or district, " riding, or division, as the case may be,) A. B. of , is con- " victed before me, C. D. one of his Majesty s justices of the peace " for the said county, (or district, he.) for that he, the said A. B. " did, (specify the offence, and the time and place when and where *' the same was committed,) and It the said G. D. adjudged ilie " said A. B. for his offence, to forfeit and pay immediately, or on •• or before the day of , (here state the penalty actually " imposed, or the amount of the injury done,) and also pay the " sum of for costs, and in default of payment of the said suras " to be imprisoned in the county gaol of the said county, (or dis- " trict, he.) for the space of , unless the >:.aid sums shall be " sooner paid, or (I order thai the said sums shall be puid by the ♦• said A. B. on or before the day of .) and I direct that " the said sum of (ihe penalty) shall be paid to of — —_ "(treasurer of the county, district, riding or division,) aforesaid, " in which the said offence was committed, to be by him applied " according to the provisions of this act, (or, I order that the sum " of (the amount of any injury done) shall be paid to £. F. " the party aggrieved, unless he is unknown or lias been examined "in proof of the offence, (in which case state li". fact and dispose 436 SumnmrD ptttifi^mrnt :| ;ii I ' K I:: i '* of the whole, like the penalty as before;) and I order that the **faid sum of for costs, shall be paid to , the complain- ** ant. Given under my hand and seal, the day and year first •• above mentioned." Sec. 16. If in any case tlie title to any lands, &c. shall come in question, then the case shall not be decided under this act, but otherwise disposed of according to law. ^16. Any person ag- grieved may appeal to the next general quarter sessions, giving the other party rfotice in writing of such appeal, and of the cause and matter* within three days aAer conviction, and seven days before the sessions, and entering into recognizance with two sure- ties before a justice, to appear and try such appeal, and abide the judgment of the court ; and the sessions shall hear and determine the same ; an mons. Tooncj 858. But an information for a penalty need not be upon oath, unless t* e statute requires it. 8 T. R, 508. Where a particular form of notice or summons is required by a statute, that must be strictW ptr ued. Paley, 18. Where the defendant, after being duly seized with the summons, neglects to appear be- fore the mngistrate, he may be, in that case, convicted in his ab> sence. R» v. Simpson^ 1 Sir. 44. 10 Mod. 248. 341, 370. But proof should previously be given of the service of the summons. Paley, 21. And see 5 Q. 2. c. 25. <^ 7.--6 G. 2. c. 9. § 22 In a case where a defendant was convicted without a previous summons, the court of King's bench granted a criminal informa- tion against the justice. R. v. Venubles, 2 Ld. R. 1407. The defendant should be allowed a reasonable time for his appearance, for a summons to appear immediateli/, or upon the same day^ would be bad, unless cured by the defendant's appearance. R> v. Malluon, 2 JBurry 681. R. v. Johnson, 1 Str. 261. , ^ SummonSf when directed to the Constable. (Akchpold.) Home District, > To the constable of to wit. Whereas, A. B. of in the district aforesaid, labourer, hath this day been charged before me, J. P. one of his Majesty's justices of the peace for the district aforesaid, on the oath of a credible witness, for that he, the said A. B. on ihe ■ day of , in the year of our Lord, 1834, ai —i.-- — in the said district, did (here state the offence). These are, therefore, to require you forthwith to summon the said A. B. to appear before me, at in the said district, on next, the day of instant, at the hour of in the forenoon of the same day, to answer the said charge, and to be further dealt with according to law ; and be you then there to certify what you shall have done in the premises. Herein fail you not. Given under my hand and seal, the — day of , in the year of our Lord, 1834. \* ■* ' *' Oath of the service of such Summons, Home District, ) The within named — 7-, constable of to wit. S maketh oath and saiih, that he did, on the Sbtirrts for (B^ooTr Hefialif our* 439 .^.m^dny of ——.personally serve the within named A. B. wUh a true copy of the within written summons. Sworn, &c. .■Hi}-' Summons t token directed to the Party. (Archbolo.) Home District. ) To A. B. of — -^ in the said district, yeoman, to wit. I Whereas you have (his day been charged be- fore me, J. P. £sq. one of his Majesty's justices of the peace for the district aforesaid, on the oath of one credible witness, for that you, on the — — day of — — last, at in the districi afore- said, did fyc. (here state the offence as in the information.) — These are, therefore, to require you to appear before me, at — — in the said district, on — — next, the day of ■ , instant, at the hour of- — o'clock in the ——noon of the same day, to answer to the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, the r^^y of — ^ in the year of our Lord, ^ ••'iT C. D. of——, constable of the said town- 5 ship, makcth oath and saith, that he did, on — ^, instant, personally serve A. B. of——, yeoman, with the original summons, under the hand and seal of J. P. Esquire, one of his Majesty's justices of the peace for the said district, of which the within is a true copy. Sworn, &c* Home District, to wit. the — - day of Summons for a Witness to be examined, (Toone.) %-y^.. Home District, > To the constable of • to wit. 5 Whereas, information hath been made before J. C. Esq. one of his Majesty's justices of the peace in and for the saiu district, that (here state the offence committed^ and by whom) and that A. B. of—, is a material witness to be exam- ined concerning the same. These are, therefore, to require you to summon the said A. B. to appear before me, at ■ in the said district, on — — the — — day of——, at the hour of — — in the — — noon of the same day, to testify to the truth, according to the best of his knowledge concerning the premises. Given under my hand and seal, the — day of——, 1834. SURETY FOR GOOD BEHAVIOUR. ' A MAN may be compelled to find sureties of the peace, both for the good behaviour and for the peace ; and yet the good beha- viour includeth the peace, and he that is bound to the good beha- ,.f- f 440 Stttetfi f ov osfooti Defiatifout* I 1. ■ li ts- tjr:/ J^j* .< Tiour, is therein also bound to tlie peace. DalU c, 122, The au- thority under which a justice of the peace may require surety for ifae good behaviour, is ibunded upon the statute, 34 JEd. 3. c. 1. ; and the commission of tim peace. No one ought to be bound to the good behaviour for any rash, quarrelsome, or unmannerly v;ords, unless they either tend to a breach of the peace, or to scandalise the government, by abusing those who are intrusted by it with the administration of justice, or to deter an officer from doing his duty; and therefore, it seemi^ ihat he who barely calls another ** rogue" or "rascal," **liar" or "drunkard," ought not for Wi:\) cause to be bound to the good behaviour. However, says Mr. Ha^vkins, 1 cannot find any certain or precise rules for the dtrecilon of the magistrate in this respect, and therefore am inclined t'; think that he lias a discretionary power to take mch surety of aii those whom he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous ; as of those wtio sleep in the day and go abroad In the night; and of such as keep suspicious company ; and of si^oh as are generally suspected to be robbers, and iLe like ; nd of eaves-droppers ; and of common drunkards ; and all ovber persons whose miobehaviour may reasonably be intended to bring them within the meanh)^^ of the statute ; as persons of evil fame, who being described by uii expression of so great a latitude, seem in a great nieasijre u. be left to the judgment of the magistrate. But if he coannit one for want of sureties, he must shew the cause with sufficient certaint}'. 1 Ilaio. 132. Mr. Dalton, (who wrote towards the latter end of King James the first,) in order to determine the same with some kind of cer- tainty, has inserted the following, as instances in which sureties of the good behaviour may be granted, viz : Against — -1. Rioters. — 2. Barrators. — 3. Common quarrcUers and common breakers of the peace. — 4. Such as lie in wait to rob; or shall be suspected to lie in wait to rob; or shall assault or at- tempt to rob another ; or shall put passengers in fear or peril ; or shall be generally suspected to be robbers on the highway. — 5. Such as are like to commit murder, homicide, or other grievance to any of the King's subjects in their bodies.-^G. Such as shall practise to poison another ; one instance of which may be the poi- soning of tlieir food : thus JVlr. Dalton granted a warrant for the good behaviour against one who had bought ratsbane, and min- gled it with corn, and then cast it amonst his neighbours fowls, whereby most of them died. 7. Such as in the presence of the justice shall misbehave himself in some outrageous manner of force or fraud. 8. Such as are greatly defamed for resorting to houses suspected to maintain adultery, or incontinency. 9. Maintaineri pf house* commonly suspected to be houses of common bawdry. r Sbntrts tor €;foo)y aietinlKoiir. 441 I The ati- re surety for ^d.3,c, 1.; bound to the nerly v;ords, 10 scandalise ty it with the ing his duty; ,»» ler "rogue nxuiv cause to . Hav'kinfs, 1 ecilon ot the think that he those whom quarrelsome, go abroad in : and of srch like ; jd of otber persons o bring them il fame, who de, seem in a istrate. But he cause with King James kind of cer- ich sureties of )n quarrellers n wait to rob; assault or at- r or peril ; or lighway. — 5. ler grievance >uch as shall ay be the poi- arrant for the ine, and min- ibours fowls, esence of the anner of force ^ing to houses Maintaincrs mon bawdry. 10. Common whoremongers and common whores. 11* Night walkers, that shall eaves-drop men's houses ; or shall cast men's gates, carts, or the like into ponds ; or commit other outrages or misdemeanors in the night; or shall be suspected to be pilferers, or otherwise like to disturb the peace ; or that be persons of ill be- haviour, or of evil fame or report generally ; or that shall keep company with such, or with any other suspicious persons in the night. 12. Suspected persons who live idly, and yet fare well, or are well apparelled, having nothing whereon to live, unless, upon examination, they shall give a good account of such their living. 13« Common gamesters. 14. Such as raise hue-and-cry without cause. 15. Libellers. 16. Putative father of a bastard child.** 17. Such as persuade or procure tiie putative father of a bastard child to run away. IS. Such as abuse a justice's warrant, or shall abuse him, or the constable in executing their office. Nay, it seemeth, he says, that he who shall use words of contempt, or contrary to good manners, against a justice of the peace, though it be not at such a time as he is executing his office, yet he shall be bound to his good behaviour. 19. Such as charge another before a justice with felony, riot, or forcible entry, and yet will not prosecute or give evidence. 20. In general, whatsoever act or thing is in it- self a misbehaviour, is cause sufficient to bind such an offender to the good behaviour. Dalt. c. 124. To which may be added — 21. Forcible entry. 1 Haw, 124. 22. Thj author of any writing full of obscene ribaldry. 1 Haw, 195. 23. For striking a person in the presence of the justices. Crom. 124. 24. For threatening so as to deter witnesses from at- tending a court of justice, lb, 125. i -''"'" For what it shall he forfeited. -, Mr. Hawkins says, it has been laid down as a general rule (hat whatever will be a good cause to bind a man to his good behaviour, will forfeit a recognizance for it ; but this has since been denied, and indeed seems to be by no means maintainable ; because the statute, in ordering persons oi evil fame Xo be bound in ttiis man- ner, seems in many places chiefly to regard the prevention of that mischief, which they may justly be suspected to be likely to do ; and in that respect requires them to secure the public from that danger which may probably be apprehended from their future be- haviour, whether any actual crime can be proved upon them or not ; and it would be extremely hard in such cases to make per- sons forfeit their recognizance who may yet justly be compelled to * Thero beins no poor-laws in this province, »a offender of this eort wonM t<<^, probablf , be liable, < n A 1 iHRj 1 t Wl ' ■ ^Ijift \ ■,'. "," ^P-lr iSi' 1 44^ // Sbtneattinn* ^';-' II, M:li I "3 ji * '!! give one, m those who keep suspicious company ; or those who spend much money idly, witiiout having any visible means of get- ting it honestly ; or those who lie under a general suspicion of be- ing rogues and the like. 1 Haw, 132, 133. However, it seems, that such a recognizance shall not only be forfeited for such actual breaches of the peace^ for which a recognizance for the peace may be forfeited, but also for some others for which such a recogni- zance cannot be forfeitv:4> as for going round with great numbers to the terror of the peopii or speaking words tending to sedition ; and also, for all such actual misbehaviours which are intended to be prevented by such a recognizance, but not for barely giving cause ofsuspicionofwhat may perhaps never happen. 1 Haw. 133. For the forms requisite under this title, see *' Articles of the Peace," the forms in which may be easily adapted to any case that may arise under this head, observing throughout to confine the subject matter to " surety of the good behaviour," omitting the words, •' surety for the peace." SWEARING. • ,.;•;:! Br Stat. 19 G. 2. c, 21. It is enacted, that if any person shall pro- fanely curse or swear, and be thereof convicted on confession, or oath of one witness before one justice, he shall forfeit as follows : Cvery-day labourer, common soldier, or common seaman, one shilling; every other person under the degree of a gentleman, two ihillings ; and every person of or above the degree of a gentle- man, ^ve shillings ; and for a second offence after conviction, double; and for every other offence after conviction, treble; — which said penalties shall go to the poor of the parish. If such person shall curse or swear in the presence ar.d hearing of a jus- tice, he shall convict him without any other proof. ^ 2. If in the presence and hearing of a constable, if he is unJcncrpn to such const'ible, the said constable shall seize and carry him forthwith before the next justice, who shall convict him upon the oath of such constable. If he is known to such constable, he shall speedily make information before some justice, in order that he may be convicted. <^ 3. So that the constable, if it is in his hearing, is required to prosecute ; but any other person also may prosecute if he pleases. And such justice shall immediately, on such infor- mation on the oath of any constable, or of any other person, cause the offender to appear before him, and on proof of such informa- tion convict him ; and if he shall not immediately pay down the penalty, or give security to the satisfaction of such justice, he may commit him to the house of correction, to be kept to hard labour for ten days. ^ 4. Also, the charges of the information and con- 443 viction ihaU be paid by the offender, if able, over and above the penalties, which charges shall be ascertained by such justice. ^ tl. But for the information, summons and conviciibn, no more shall be paid to the justice's clerk than Is. o 15. And if he shall not immediately pay such charges, or give serurity to the satisfaction of such justice, he may commit him to the house of correction, to be kept to hard labour for 6 days, over and above such time for whtch he may be committed for the penahies. <^ 11. . But if such soldier or seaman shall not pay or secure the penalty, and also the costs, he shall, instead of being committed, be ordered to be publicly set in-the stocks for one hour for every single offence, anc'i for any number of offences whereof, he shall be convicted at one and the same time, two hours. <^s 5. The conviction shall be in the words and form following : " Be it remembered, that on the — — — day of , in the ■ ■ year of his Majesty's reign, A. B. was convicted before me, one of his Majesty's justices of ihe peace for the county, rid- ing, division or liberty aforesaid, (or before u»e, — — — , mayor of the city or town of———, within the county of ,) of swearing one or more profane oath or oaths, or of cursing one or more profane curse or curses. Given under my hand and seal, the day and year aforesaid." ^ 8. Which conviction shall not be removed by certiorari. ^ 9.— And the justice shall cause the conviction to be fairly wrote upon parchment, and returned to tiie next general or quarter sessions, to be filed by the dork of the peace, and kept among the records. ^ 6. Constable omitting his duly, shall, on convicliim on oath of one witness bvforc one justice, forfeit 405. to be levied by dis- tressj half to the informer, and half to the poor ; and in default, commitment Co the house of correction, with hard labour for one month. And this act shall be pullicly read four times in the year, in all churches and chapels, by the minister immediately after morning and evening prayer, on the Sundays next after 25th March, 24th June, 29th September, and 25th December, on pain of ij5 for evefy oflence, to be levied by distress. '^. 14. Prosecu- tions under this act, to be within 8 days after the offence commit- ted. ^ 13. '«"! Home District, > The information of A. I. of in the ) district afore? id, yeoman, made on oath, this , . ■ day of >-, in the — — year of the reign of , before J. P. Esquire, one of his Majesty's justices of the peace for the said district, who saiiii, that on the — day of »■ ■ ■' , now last past, at in the said district, he heard A, !! j i if i II — — in the laid district, yeomao, swear one proline oath, (or curse one profane curse,) in these words, that is to sa^i &c. [here insert the precise words used by the defendant.] 444 o.or ■ .JUl Summons, (Bubn.) :5' fH- in the laid district. Home District, > To the constable of — — y Whereas, information hath this day been made before me, J. P. Esquire, one of his Majesty's justices of the peace for the said district, upon the oath of A. 1. of , yeoman, that on the ' day of this present month of , he heard A. O. of ■ in the said district, yeoman, at ■ in the said district, swear one profane oath, (or curse one profane curse.) These are, therefore, to command you to cause the said A. O. forthwith to appear before me, to answer the premises, and to be further dealt with according to law. Given under my hand and seal, at ■ in the laid district, on the — — day of , in the — — year of Conviction. (Sec the form in the Act.) Commitment. (Burn.) Home District. > To the constable of—— in the said district, y and to the keeper of the house of correction at the city of Toronto, in the said district. Whereas, A. O. of — in the said district, day labourer, is, and stands convicted this day before me, J. P. Esquire, one of his Majesty's justices of the peace for the said district, of swearing one profane oath on the — .. day of this present month of , at in the said dis- trict : whereby he hath forfeited the sum of one shilling, to be ap- plied in the manner by law directed ; and whereas, the said A. O. hath refused, and doth refuse to pay down the said sum of one shilling, to be applied as aforesaid, and also hath refused and doth refuse to give satisfactory security to pay the same. These are, therefore, to require you, the said constable, to convey the said A. O. to the house of correction at the city of Toronto, in the said district, and to deliver him to the keeper thereof, together with this warrant. And I do hereby command 3'ou, the said keeper, to receive him, the said A. O. into your custody in the said house of correction, and there to detain and keep him to hard labour, for the space often days. And for so doing, this shall be your suffi- cient warrant. Given under my hand and seal, at in the said district, 1 the — — . day of , in the _ year of the reign of ritef tiioUt tct. 445 ^j5 ,bi»tA *-'. id district, been made ices of the -, yeoman, : heard A. aiid district, These are, jrlhwith to irther dealt a1, at •^— , — year laid district, orrection at O.of ted this day tices of the oath on the he said dis- ig, to be ap- said A* 0* sum of one ed and doih These are, the said A. in the said gether with id keeper, to laid house of labour, for e your suffi- in the .^ year of If he also refuse to pay the security, th^se wordi may be added, — "satisfactory to pay the same: and whereas, the said A. O. hath likewise refused, and dr 'h refuse to pay the sum of one shil- ling, which I have settled and ascertained as and for the charge! of the proceedings against him, touching the premises, and hath refused, and doth refuse to give satisfactory security to pay t' same. These are, therefore, to require you, &c. , for the space of sixteen days — ti Tavern LicENSES.~See title "Inns and Inn-Keepers,** ante^ p, 239. THEFTBOTE. Theftbote (from tlie Saxon theft and bote, boot or amends) is, where one not only knows of a felony, but takes his goods ogain, or other amends not to prosecute. 1 Haw* 125, See title "Com- pounding felony,** ante p. 121. THREATS. If one man threaten another, to deter him from doing some law- ful act, or to compel him to do seme unlawful one, or with in- tent to extort money from him, or obtain any other benefit (whether real or imaginary,) to the person who makes use of the threat ; this has always been considered a misdemeanor at com- mon law. Thus, to threaten a plaintiff for suing a defendant, or a counsellor or attorney for being employed against any party in a suit ; a juror for his verdict ; or a gaoler, or other ministerial of- ficer, for keeping a prisoner in custody, and properly executing his duty — are ofifeuces, for which the party may be indicted and punished by fine or imprisonment. 2 Jnst, 141. 4 BL Com, 126. 2 Chit. C. L. 149. With respect to threats of personal violence, or any other threats by which a man is put in fear, and by means of which money or other property is actually extorted from him, tliese we have al- ready seen, amount to the crime of •' robbery," See ante p, 401. So a mere demand of money, or other valuable thing, made with menacest and with intent to steal the same, although no money is actually extorted, is a transportable felony, 7 G, 2. c. 21. ; which last offence has been treated of (at p. 403) in considering the crime of " robbery.*' But the threats which we have now chiefly to deal with, are those contained in letters or other writings^ sent or de- livered to the party threatened, by which he is menaced with death or the burning of his house, or with the infliction of any other dire I if - M ill '1 f 446 ^j'r-.Cftlp^Ht»,~fn'* cftlamity, when accompanied with a demand of money; or with un accusation of having commilted some heinous crirtv, for the purpose of extorting money. This was formerly r'>::<;i()ered so great an ofience that it was made high treason, by i'yi c'atule of 8 H. 5. c. G. By the 9 Gf. 1. c. 22. <^ 1. (calltd liie black act^) if any petson knowingly send any letter without any name subscribed tberetOi or signed ^ith a fictitious name, demanding money, venison, or other valuable thing, it is felony without clergy. And the same with respect to those who by gilt, promiiie of money, or other re- Ward, procure any of his Mnjesty^s subjects to join him or (hem in such unlawful act. By the 30 G. 2. c. 4. all persons who shall knowingly send or deliver any letter or writing, with or without a name or names subscribed thereto, or signed with a fictitious name or names^ let- ter or letters threatening to accuse any person of any crime pon- ishable by law with death, transportation, pillory, or other infa- mous punishment, with a view or intent to extort or gain money, goods, wares or merchandizes, from the person or persons so threatened to be accused, shall be deemed ofienders against law and the public peace ; and the court before whom he shall be con- victed may order such ofiender to be fined and imprisoned, or put in the pillory, or publicly whipped, or to be transported for seven years. By the 27 G» 3. c. 15. if any person or persons shall knowingly tend any letter without any name subscribed thereto, or signed with a fictitious name or names, letter or letters threatening to kill or murder any of his Majesty ^s subjects, or to burn their houses, out-bouses, barns, stacks of corn and grain, hay or straw, though no money or venison or other valuable thing shall be thereby de- manded, every such ofiender shall sufier death without benefit of «»ergy. ,, ., _ , M' a»*- Commiiment for sending a letter demanding money ^ S^e. (Felony.) i 9 G. 1. c. 22. (Archbold.) Comnuncementt as ante^ p. 1 18.] on the day of , in > (he year of our Lord , at — — . aforesaid, in the district aforesaid, knowingly and feloniously did send {stnd or ddiver\ to ' [the said] C. D. a certain letter [letter or writing] directed to the said C. D. demanding money [or "a certain chattel," to wit. '.''or *' a certain valuable security, to wit. ,"] of and and from •(the said C. D. with menaces, and without any reasonable or prob- *'.able cause; against the form of the statute in that case made and provided. And you, the said keeper, &cc. as ante jp. 119, to the ^' 9mSi.ni>a ^f;„ ^I'^.ym^A^t i| nWf SToUm JWe(lln0». 447 CommUmtni for thteatening to auuio a man of a erimet with {nUnt to extort Money. (M%$demtanor>) SO G. 2. e. 24. Commeneimentt ai antOt p. 118.] on the day «<* ia the year of our Lord , at hi the said digtrict, did threaten [the said] C. D. to accuse [accuse or threaten to accuse] him, the said C D. of having [attempted and endeavored to commit a rape upon Ann« the wife of the said A. B.] with a view to extort and gain money [chattels, money^ or valuable security] from the said C. D. against the form of the statute in that case made and provided. And you, the said keeper, &:c. as ante p, 110, to the end. Town CLERK.~See post " Town Meeting." ; TOWN MEETING. f. By Stat. 33 G. 3. c. 2. It is enacted that it shall be lawful, as soon as conveniently might be after passing this act, fur any two jus- tices acting within the division in which any parish, township, re- puted township or place may be, to issue their warrant, giving 8 days notice to the constable of such parish kc, aulhorising him on a day to be fixed by such justices in that year.and on the first Mon- day in the month of March, [altered to January by the 57 Q, 3. c. 7.] in every ensuing year to assemble the inhabitant hocs^hol- ders, paying or liable to pay, any public assessment or rale of such parish, &ic., in the parish church or chnpel, or some other convenient place in the township, &cc., fur the purpose of choos- ing tovvn officers for the year ensuing, at wlitcit meeting the con- fitall^e shall preside. ^ 2. A town clerk shnll be chosen, who shall make a true list of every male and female inhabitant within the limits of his parish, &&('., and return the same to the justices aforesaid, to be produced by them at the sessions in April ; [his duties, as to the census are repealed by the 4 G*. 4. c. 7.] and the said clerk shall enter and record all matters relating to the parish or township, keeping and delivering such records to bis succes- sors. ^ 3. Two assessors shall be appointed to assess all such rales and taxes as shall be imposed by the legislature on the in- habitants of the said township; "^4. And one collector of the same ; i By the 48 G, 3. c. 14. § 2. Every collector shall, within one month after nomination, enter into the following bond, with two sufficient freeholders, to the treasurer of the district : Know all men by these presents, that I, A. B. collector of the rales for the township of in the district of , C D. and e2 :'4| ;l ^;r t iW ^i*vi in 1:1 J III if! t B il 'f i ;t 11 «■! !H J| JH^ flRiJ 1 ^V ' ''IHK 1 [1 1 : 1 : 1 M' m ■ t 1 m W ■Llfti f . J 1 450 00lim J^eeKniK^. £. F. of the Bame place, yeomen, [or as the case may be,] are held and 0rmly bound to I. O. treasurer of the district of , in the sum of two iiundred pounds, lawful money of Upper Canada, for which payment well and truly to be made, we bind ourselves jointly and severally, our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated at , this ■ day of , Stc. &c. Sec. 3. Which bond shall be prepared by the town clerk, who shall transmit the same to the treasurer within one month after cx^ ecution, and be allowed 5s. out of the district treasury for the same. ^4. And if collectors shall die, or leave the place, the justices in quarter sessions may supply the vacancy. By 53 G. 3. c. 9. '^ I. The collector in each parish shall, once in three months, and oftener, if required by the magistrates in ses- sionSj pay over to the treasurer all monies received. '^2. The condition of the collectors bond shall be as follows : " The condition of this obligation is such, that if the above bounden A. B. shall collect and levy all the rates and assessments of the township (or townships) of , for the present year, end- ing on the first Monday of [March] next, so far as the law may enable him so to do; and shall pay all the monies which he shall so collect and levy to the treasurer of the said district, once in every three months, or oftener, if thereto required by the magis- trates in general quarter sessions assembled ; and if the said A. B. do well and truly collect and pay by the different payments to he made as aforesaid, the whole amount of all monies received by him on or before the 1st day of [March] next, ensuing his appointment as collector, then this obligation to be void, or else in full force.'" N. B. — The 57 G, 3. e. 7. By which tlie time for holding Town Meetings was a|. lered from March to January, would seemingly nullify the operation of this bond, the condition referring to the month of March next ensumg. But as all acts of Par- liament are to be construed reasonably, and us it is clearly evident that the intention of the 33 G. 3. c 9. was, that the bond should he for the whole current year, the word January may therefore be safely substituted for March. — Ed. Sec. 3. Imposes a penalty of not less than £5^ nor more than X25, upon any town clerk, who shall refuse or neglect to provide and transmit such bond, if executed, to the treasure, as by law is directed, to be recovered before two justices, on the oath of one witness, and levied by distress and sale, one moiety to (he informer, the other to the province. Sec. 4. County of Prescoti, in the E. district, excepted. Justices* Vf^arrant tit assemble the Inhabitants. in the Home District. ) To the constable of the township of — i said district . By virtue of a power for •uch purpose granted by a certain act of the legislature of xh'n Zc^on iWcrtftfiTfif* 451 province, made and passed in the thirty-third year ofthe jeign of King George the Third, to us, A. B. Esquire, and C. D. Esquire, two of his Majesty's justices of the peace in and for the said dis- trict, these are to authorise and require you, giving eight days previous notice, to assemble the inhabitant householders, paying or liable to pay to any public assessment or rate, living within your parish or township, to meet at , on , for the pur- pose of choosing and nominating certain fit and proper persons to serve the offices herein specified, for the year ensuing, that is to say, — one town clerk ; two assessors ; one collector ; two or more overseers ofthe highways and roads; one or more pound-keepers, and two town-wardens, according to tlie directions in the said act contained : and for so doing this shall be a sufHcient warrant. Given under our hands and seals at , the — — day of——, in the year of the reign of his Majesty King , and in the year cf our Lord"- . J. P. J. R. Constahld's Notice^ to he given on a Nomination to an Office by the Justices. Home District, > Township of 5 Whereas, at a special session for that purpose, holden at the — — day of - - --, by A. B. Esq. and C. D. Esq. two of his Majesty's justices ofthe peace for the said district, you were by the said justices nominated and appointed to serve the office of for the township of' for the year next ensuing, by virtue of a power to them for that purpose granted by a cer- tain act of the legislature of this province ; these are therefore to notify unto you, that unless you accept the said office and take the oath prescribed, within seven days from the receipt of this no- tice, you shall, for such negl«JCt or refusal, forfeit and pay the sum of 40s. as by the said act is directed. Dated lhl«— — day of— — in the year of our Lord 18— —. C )l. Constable. To Mr. L. M. Affidavit to he made hy the Totcn Clerk an to iJie notificaiion to At* sessors of their nppoinlmait at T'l'rn 3hcti>ig. A. B. town clerk of the township of , maketh oaljj and gaith that he did, on the ■ day of instant, [or last past] leave a notice in writing at the residences of C. D. and E. F. in the said township of — — of their having beeti chosen at the last annual town meeting assessors for the said township, for the present year. Svvoru before me, this day of——, 18——. (Signed) A. B. [N. B. If the l»wn clerk Rhould £ce (he assessor* nnd infonti ihem of their np- iiointmentg personally, then omit t\\\i words vvilhiii :he brackets und insert the tbilow- n J— "personally acquaint the said C. D. and E, F."] ■1 1 '.■il Hi < w II Mf • ^^B 1 ir >«■! • ; i! 11 452 ^^oUm jnertinitfit. Certificate to Treasurer of Town Clerh*s notification of Assessors appointments, f , Office of the Clerk of the Peace^ > day of ,183—. > I hereby certify Uiat A. B. town clerk of the township of , has notified to me the appointments of the two assessors of the said township for the present year, and is entitled to five shillings for each notification, which, be pleased to pay accordingly. S. W. C. of the P., H. D. To F. B. Esq. Treasurer, H, D, Certificate to Assessors of having delivered the Census Roll. Office of the Cleric of the Peace, > (Date.) 5 I hereby certify that A. B. assessor of the township of. has delivered to me the census roll for the said township for the present year, under oath, pursuant to the statute in such case made and provided. S. W. C. of the i"., H, H. Information against an Inhabitant householder for neglecting to serve, or take the Oath of Office within seven days — penalty 409. (It should not he upon Oath.) \ Be it remembered l' x on the in the year of oi> Lord Home District. to wit. of I in the the said district, A. B. of the sair township, con — day of , , at the townchip stable of the same, personally com' \\ before me, J. P. Esquire, one of his Majesty's justices of the neace for the said district, and informeth me that C. D. late of the sauie township, yeoman, was at a town meeting held at . , in the said township, on Monday the .« day of January now last past, {or instant,) duly nomin- ated to the office of .. of the said township, he the said C. D. then being an inhabitant householder in the said township, and liable to serve the said office ; and that the said C. D. aftewards, to wit. — within the space of seven days next after such nomination as aforesaid, refused to serve and qualify himself to serve ihe said office by taking the oath in that behalf, contrary to the form of the statute in such case made and provided, wliereby the saidC. D. hath forfeited the sum of forty shillings for his said offence ; wherefore the said A. B. prayeth that the said C. D. may be convicted of the ofience aforesaid, and that h^;; may be summoneed to make his defence thereto. Exhibited before me, C. D. For the other forms of proceeding see titlei ♦♦ Summons," «* Conviction," *' Distress Warrant," &tc. Town Officers. — See ante. " Town Meeting." TRANSPORTATION. By 40 0. 3. c. 1. ^ 5. It is enacted, that when any person shall be convicted of any crime, for which he shall be liable by law 10 be transported, the court, instead of the sentence of transporta- tion, shall order and adjudge that such person be banished from tbis province, for and during tlie same number of years, or term for which he or she would be liable by law to be transported, and do remove himself or herself therefrom, within a space of time to be fixed by the court, being not less than 2 days, nor i^ore than 8, including the day of sentence. And any person found at large in any part of the province without some lawful excuse, after the time and before the expiration of the term, shall suffer death, as in cases of felony. By the 3. W. 4. c. 4. This ofience is not now capital, but is punishable as other felonies not of a capital nature. Commitment for returning from Banishment. Commencement as ante. p. 1 17.] having been banished from this province for the term of [seven years] in pursuance of a certain judf^ment against him fcv felony, feloniously and unlawfully, and witnout any lawful cause or excuse, was on the day of ■ in the year of our Lord, - and before the expiration of the said term of [seven years] at large, at in the district afore- said, against the form of the statute in that case made and provid- ed. And you, the said keeper, he, as ante jp. 118. TRAVELLERS. By 52 G. 3. c. 4. Entitled " an act to prevent damage to travellers on the highways in this province ;" it is enacted, that it shall be the duty of every person travelling the highways with sleds or other carriages, when they meet each other, for each person to turn out to the right hand with their sleds or other carriages, and give one equal half of the road, highway or beaten track, for the more easy passing each other without doing damage to either par- ty's team, sled or carriage. *^ 2. Any person refusing, shall for- feit and pay 10s. with reasonable costs, to be recovered before one justice, on confession or oath of one witness, to be levied by dis. tress and sale, and in dcfuidt commitment to the common gaol for any time not exceeding 3 days, unless such fine and costs be paid. ^ 3. Every person travelling with sleighs on any road, high- >•" 454 rralielUro* m nnv: :j way or beaten track, shall have two or more bells fixed to the harness, under the penalty of 10s. to be recovered as aforesaid. ^ 5. Complaints to be made within, 10 days. <^ 6. Act to be in force for four years. By the 56 G. 3 c. 11. <^ 3. One moiety of all fines under the above act, shall be paid to the informer, and the other moiety to •he receiver general, for the use of the province. These acts were made permanent by the 59 G. 3. c, 17. Information against a person for neglecting to give one half of the Road. Pctialfu, 10s. Home District, ) Be it remembered, that on the ■ day of to wit, ) , eight hundred and in the year of our Lord, one ihousarul -, at the township of in the district in the said district, 3'eomnn, who as aforesaid, C. D. of- well for our sovereign lord the King as for hiiiisoir, doth prosecute in this behalf, personally cotneth before me, J. P. Esquire, one of his Majesty's justices of the peace, for the said district, and as well for our said lord the Kinj^ as for himself, inftinnolh nio, that he, this informant, within the space of 10 days, now last past, to wit : on the . day of , in the year aforesaid, at the township afoissaid, in the district aforesaiJ, was travelling with a waggon, drawn by two horses, upon a certain road and highway in the said township, leading from in the district aforesaid, to in the same district, and thut while so travelling upon the said road and highway as aforesaid, he, tiii<; inforinant met in and upon the said road and highway, one CI. D. late .if the towns>!iijj aforesaid, in the district aforesaid, yeoman, who was also travel- ling upon the said road and highway, in an opposite direction to this informant, with a certain other waggon, dr.iwn by two horses ; and this info-mant further saith, that the said C. D. tipon the oc- casion aforesaid, neglected and refused to turn out to the right hand with his said waggon, and give to this informant one equal half of the width of the said road and highway there, I'av the more easy passing of each other, and that instead of so doin;r, he, the said C. D. on f'u; occasion aforesaid, and while so passing this informant upon the said road and highway as aforesaiil, [con- tinued to travel 01; in the cenlr of the said roi.d wiili his s-'ilfj waggon and horse>, or the san)i' side of the road upon uhich this informant was then and there lavvCiilIy travelling as afore-aid, to wit : the right hand side of the said road and highway leading from the said ■ to ] con'.'ary to the foiin of the slaitiie in sue!! case made and provided, whereuy and hy force of tiie statute i 1 luch case made and provided, the said C t), hath Atrfeitcd fo; hii "f Zvaf^nuvfs. 455 me half of the ■aid ofTence the sum of ten slilllings, wherefore the said C. D. vrho prosecutelh as aforesaid, prayeth the consideration of me, the said justice in the premises, and that the said A. B. may be convicted of the offence aforesaid, and that one moiety of the said forfeiture may be adjudged to our said lord the King, and the otiier moiety thereof to the said C. D. according to the form of the statute in that case made and provided, and that the said A. B. may be summoned to appear before me and answer the premises, and make his defence tliereto. Fxhibited before me, J. P. C. D. ff. B. — This iiiforniaiition slimild not be upon oath. The oiTtQee uiuil be proved hj other testimony tiian that of the uirormer. Summons on the preceding Information. Home District, to wit. ) To A. B. of in the said district, yeoman. ) Whereas, you have this day been charged be- fore me, J. P. Esq. one of his Majesty's justices of the peace for the said district, in and by a certain information in writing, ex- hibited before me, the said justice, the day of ■ in the year of our lord, by one C. D. of—— in the said district yeoman, who therein informeth me, the said justice, that he, ths said informant, within the space often days now last past, to wit: on the — — day of in the year aforesaid, at, &ic. [Aere set forth the ojftncc as charged in the information to the concluding word thereto.] These are, therefore, to require you to appear before me at — — in ib.e said district, or. — — next the — — day of instant, at the hour of in the forenoon of the same day, to answer to the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, the — — day of in the year of our lord, ■. The Conviction Must be in the form required by the 2 IV. 4. c. 4. See ante, p^ 139. See also titles, " Distress," ante. p. 150. 151. and "Coih mitment," ante. p. 119. Information against a person Travelling in a Sleigh toithoui Bells ajjiicd to the Harness. Penaltij, \Qs. Commencement the same as in the last form"] that A. B. lute of the township of it; the district ul'oresaid, within the space of ten days, now last past, to wit : on the - ■■ - • day of — — in the year aforesaid, at the township aforcsuid, in the district aforesaid, cia iravel upon a certain road and highway, leading fioni ■ ■ Ff^;^>j y 456 Cta5ier«e, $ct. / to ill ihc said district, in a certain sleigh, drawn by one hor&e, and withont having any bell or bells affixed to the harness of tin said horse, or otherwise, contrary &£c. [as in the last pre- T!i > other forms referred to in the last may be easily adapted in ; U :)se. But it should be remarked, that the clause imposing the '• V for travelling without sleigh bells docs not sppcifically g've iiic Us of prosecution. It will therefore be proper to pro- cCi'd for U\e costs, under the stat. 18 G. 3. c. 19. See ante, title «• Costs," ^\ 141. TRAVEKSE. By statute 3 IV. 4. c. 4. '^ 111. No traverse, or other postpone- ment of any trial, shall be allowed, except upon special cause shewn to the satisfaction of the court, or by consent of his Majesty's attorney or solicitor general prosecuting same. TREASON. Treason, according to Lord Coke, is derived from trahir, to betray; and trahison, by contraction treason, '. . the betraying it- self. 3 Inst, 4. Treason, generally spoken, is intended not uf petit treason, but of high treason only. 1 IJ. //. 316. Of High Treason, By the statute of the 25 Ed. 3. .«^ 5. e. 2. Which lord Hale calls a sacred act ; and lord Coke, an excellent act ; and the king who made it, a blessed king ; and the parliament, a Ucsscd par- liament — all treasons which had been uncertain before, were settled ; which act, by the 1 Mar. sess. 1. c. 1. is re-inforccd, and again made the only standard of treason ; and all siaiutes between the said statutes of the 25 Ed. 3. and 1 Mar. which made any offen- ces high or petit treason, or misprision of treason, are abrogated, so that no oft'ence is at this day to be esteemed high treason, un- less it be either declared to be such by the said statute of the 25 Ed. 3. or made such by some statute since the 1 Mar, The 25 Kd. 3. is as follows : — '* VVIiercas divers opinions have been before this time, in what case treason shall be laid, and in what not, ilic king, at the request of the lords and commons, hath made a dedaraiiou in the manner as licreinafier folluweth, thu is to say: — when a man doth compa.^i or imagine the death of our lord the Kinpr, or of our lady his ({ucen, or of their eldest son and heir ; m- if r\ inr\i. do violate thf; king's companion, (th;it u, \ Q^rriifisoii* 457 his wife. 3 Inst. 0.) or the lung's eldest daiigliler, unmarried ; or the wife of the king's eldest sou and heir ; or if a man do levy war against our lord the king in his realm ; or be adherent to the king's enemies in his realm, giving them aid and comfutt iii the realm or elsewhere, and thereof be probably (proveablement, proveably) attainted of open deed by the people of their con- dition ; and if a man counterfeit the king's great or privy seal, or his money ; and if a man bring false money into the realm, counterfeit to the money of England, knowing the same to be false ; and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize ; and all other justices assigned to hear and determine, being in their places doing their offices." And by the statute 1 Mar. sess. I. c. 1. (which lord Hah calls another excellent law) "no act, deed or uflViiee, beiiig by act of parliament made treason, by words, writing, ciphering, deeds, or otherwise, whatsoever, shall be adjudged tu be treason, but only £uch as be declared by the said statute of the 25 Ed. 3." And this, he says, at one blow laid flat all the numerous treasons at any time enacted since the 25 Ed. 3. 1 H. IJ. 308. Lord Coke (3 Insi, 14. 140.) seems to be of opinion, upon the said act of the 25 Ed. 3. that bare toords are not a sufficient overt act or open dctd, whereby to convict a person of treason ; but that they are misprision of treason only. So also lord Hale seems to think that words, unless put into writing, are not regularly an overt act. 1 U. H. 111. 118. But Mr. Hawkins argues the con* trary ; and amongst other reasons for his opinion, he observes that to charge a man with speaking treason is unquestionably actiona- ble, which could not be if no words could amount to treason. Also, that as in case of felony, he who by command or persuasion induceth another to commit felony, is an accessory in felony, so he who does the same in treason is a principal traitor, (there being no accessories in treason, but all being principals) : and yet such person doth no act but by words. 1 Haw. 39. And it has beeu the constant practice ever since the revolution at lea ', (168H) where a person, by treasonable discourses, hath manifesied a dt- sign to murder or depose the King, to convict him upon su«h evidence; and in Lowick's case, Holtj C. J, declared that crprass words were not necessary to convict a man of high treason ; but if from the tenor of his discourse the jury is saiisfieil he »vas en- gaged in a design against the Kinfjf's life, this is sufficiert to con- vict the prisoner. Read. Treat. 146. Oflences in relation to the coin, in England, are made treason by many statutes, but are scarttly applicable to this province. ':'. .1 it !, 3 n' k il! r mi m 1 J m'W ^11 ■■ ! MB i 'iH'''t' ' 9lJ §'' ■''''■^ ' 1 iWt]. Wt'i ^mm fli' i ^ajT^l-' ^■ii'l; ' [^ ffiU :9| i ffili: 9i' '' fflS' wil: Wm\ ffi pi, 'I? HI il, , 1 ffffi' K v< Hwi H| '■ t i, i' '< '' PM'" V. ii^ \l 1 i 1 458 Kv$anon. The difTcrent treasons relating to the papists, or (k/soms exer- cising the romuii catholic religion, inmely, that croated by the 6 Eliz. c.l. of defending the pope'b jurisdiction in this realm; that created by the 27 Eliz. r. 2. of a popish priest tarr) ing three days in England without taking the oaths ; that created by the 3 Jac. 1. c. 4. of any natural-born subject being reconciled to the See of Rome — have long become obsolete, and seem indeed to be now virtually repealed by the 31 G. 3. c. 32. But there is one kind of treason declared by ihe 23 Eliz. c. 1. that is distinct from any treason of tiic last description, although the statute was made ostensibly against maintaining the authority of the Sec of Rome. By '^ 2. it is enacted, that all persons who shall pretend to have power, or shall by any means put in prac- tice to absolve, p»^rsuade, or withdraw any subject from his natural obedience to her Majesty, or to promise any obedience to the See of Home, or of any other prince, state or potentate ; or shall do any overt act to that intent or purpose — shall be guilty of high treason. So by the 3 Jac, 1. c. 4. ^ 22. If any person shall, either upon the seas or beyond the seas, or in any other place within the dominions of his Majesty, his heirs and successors, put in practice to absolve, persuade or withdraw, any of the subjects of the King, or of his heirs or successors, of the realm of Eng- land, from their nntura! obedience to his Majesty, his heirs or successors, or to move them, or any of them, to promise obe« dience to any print^e, slate or potentate — every such person shall suffer as in cases of high treason. And by <^ 3. the like penalty Bttarhes t(> a.«/. 21 1. i-i issue) no attainder .io lieir or oilier person, 7.4h. 6. 21.^ 10. il G.2. an Petit Treason ^. Is where a servant slayeth his master, or a wifu her husband, -jd is distinguishable from high treason in tliis way: high tteason can only be committed against the King, or his government, &£c. petit treason, against the King's subjects. By the 3 W. 4. c 4. The punishment for petit treason is the same as in cases of murder. , Misprision of Treaton. Misprision cometh of the French word mespris, whirh properly signiHeth neglect or contempt, and misprision of treason, in legal understanding, signilicth when one knoweth of any treason, though no party or consenter to it, yet conceals it, and doth not reveal it in convenient time. 3 Inst. 36. 1 H. H. 371. The judgment of misprison of treason is, to be imprisoned during life, to forfev; all his goods for ever, and the profits of his lands during lift. 3 Inst. 36. Every man, therefore, that knoweth a treason, cuglit with all speed to reveal it to the King, his privy*council, or other magistrate. II, PL 127. But it seemeth that misprision of petit treason is not subject to the judgment of misprision of high trea> son, but only is punishable by tine and imprisonment, as in the case of misprision of felony. 1 II. H. 375, . * ^.'i^-v. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 II.25 Ui U2 12.2 ^ U£ 12.0 U 11.6 <% 7] / ffiotographic Sciences Corporation 23 WEST MAIN WRIET WEBSTIR.N.Y. 14510 (716) S72-4903 ^ '?!' iV \\ ^. O^ \ o^ 460 i ... v-r^--. Zvtumtttt Of fit IMfiitrict. Commitment for High Treason, (Abchbold.) Commencement MS ante, p, 117.] on the day of in the year of our Lord, — — - at ^— in the said district, together with divers other false traitors unknown, armed and arrayed in a war-like manner, and unlawfully, maliciously and traitorously as- sembled and gathered together, most wickedly, maliciously and traitorously did levy and make war against our sovereign lord King •— — within this province, against the form of the statute in that case made and provided. And you, the said keeper, &c. at ante, p. 118. to the end. Another Form, (Archbold.) On the — — day of , &c. and on divers other days, as well before as after, during an open and public war between our sovereign lord King — • and — — contriving and intending to aid and assist the said —— in the prosecution of the said war against our said lord the King, maliciously and traitorously was adhering to, and aiding and comforting the said ■ so being then an enemy of our said lord the King. And you, the said keeper, &c. TREASURER OF THE DISTillCT. By 59 G. 3. c. 7. <^ 18. The Justices In general quarter sessions are to appoint a proper person (resident within the district) to be treasurer, who shall give such security as shall be approved of by the justices, for the true and faithful execution of the trust reposed in him ; and he is thereby required to pay so much of the money in his hands to such persons as the justices at their general quarter sessions, or the major part of them, shall direct, reserving j£4 per cent, for his own use. The treasurer is also required to keep books of entries of sums received and paid by him, and deliver in a true and exact account upon oath, which oath any one justice may administer at their respective general quarter sessions, of all monies received and paid by him, distinguishing the uses to which the same have been applied, to the justices at every general quarter sessions for the district ; and shall lay before such justices the proper vouchers for the same, and transmit once a year a certified copy thereof, on oath, to the governor, to be laid before the par- liament, and the discharge of the justices shall be a good acquit- tance. The treasurer may be continued or removed at pleasure by such justices, sec. 20. By the 56 G. 3. c, 32. <^ 5. The district treasurer is authorised to retaia £S per cent, upon all militia fines, he. collected and transmitted to the receiver general ; and if not transmitted within S^vrnfiiuvrv of ttr 'Binivitt 461 D.) y of in rict, togelher arrayed in a aitorcusly as- aliciously and lOve reign lord af the statute d keeper, &c. other days, as ar between our ntending to aid lid war against f was adhering being then an lid keeper, Uc. kUCT. quarter sessions B district) to be approved of by le trust reposed :h of the money general quarter serving ^4 per quired to keep lim, and deliver any one justice sessions, of all uses to which the general quarter jch justices the year a certified before the par- a good acquit- ted at pleasure Irer is authorised |c. collected and nismitted within thr:e months after collection, such treasurer shall not be allowed sach per ccntage. By the 56 G. 3. c. 36. ^15. The several sums thereby granted to the several districts for common schools throughout the pro- vince, shall be paid to the treasurer, who is to pay the teachers their salaries on the certificate of the trustees. By 60 Gr. 3. c. 7. <^ 6. Any balance remaining in the hands of the treasurer, shall be paid over to the receiver general for the public uses of the province : And by the 2 G. 4. c. 24. the trea- surer may retain 3 per cent, upon all school monies passing thro' his hands, and be allowed the same by the inspector general on settlement of account, provided that proper vouchers are produced for payment of the monies expended. By the general assessment act, 59 G. 3. c. 7. <^ 14. He is to keep an account for every parish, S£c. within his district, and charge or credit the same with the rates -and taxes payable or paid ill respect thereof each year, and produce them for inspection each year at the sessions; and the same to be kept open for public in- spection between the hours ten of and three, on every 1st and 3d Monday in each month, receiving for every search Is. 3d. and no more. And by the highway act, 59 Gf. 3. c, 8. '^ 4. the treasurer is directed to receive the rates by this act imposed ; and by sec. 7. to charge or credit each lot for the amount imposed as well by this act, as by the last mentioned act, and produce the books to the justices for public inspection, charging only one fee for inspection of both heads of rates at the same time. By sec. 8. The collec- tors to pay the monies received by them under this act to the treasurer : And by the 4 Gf. 4. c. 10. <^ 13. the treasurer is directed to pay to the order of the magistrates in special session in March, or any other special sessions, the monies collected by the rate of i of a penny per acre, to be laid out b}' the said Justices, by con- tract or otherwise, to the best advantage on the highways where the land lies from which said rate was collected. By the 6 Gr. 4. c. 6. ^ 6. the treasurer of the district is required to report to the sessions all lands upon which the assessments shall be eight years in anear, after the 1st July, 1828, (extended by the 9 G. 4. c. 4. <^ 9. to the quarter sessions next after the 1st of July, 1829,) and such reports to be made annually. By sec. 9. Lands liable for sale for arrears, are to be advertised by the treasurer in the Upper Canada Gazette, and in some newspaper of the district within one month after rendering his account: and by sec. 19. the owner may, within twelve calendar months, resume the land sold, upon re-payment to the treasurer of the amount levied by sale and the expense, with 20 per cent, in addition. Sec. 21. Treasurer neglecting to make returns required by this act, shall, on convic- 462 (SCVt^ff* -•■'# tion nt the assizes, forfeii his ofTii^e ; nnd the justices shall oppoint another according io law ; and upon the neglect of the justices the governor may appoint one during pleasure. Sec. 24. The trea- surer shall be entitled to receive, in account with the district, £5 for every account furnished under this act. Sec. 27. The trea- surer is bound to give to any person paying his assessment, a de- tailed receipt for the sr.nie ; nnd by 9 G. 4. c. 3. and for assess- ment paid on lands !n another district, upon payment of five per cent, on the rate, as a compensation, for which he shall keep a se- parate account, to be verified upon outh and transmitted to the treasurer of the district where the lands lie, annually, on the first day of July : and the treasurer receiving assessments from trea- surers of other districts, is to credit the respective lots, and transmit receipts to the treasurers forwarding the mone}'. By sec. 6. Af- ter the Ist of July, 1829, treasurers are not to receive taxes upon lands in other distri( ts, if they have been in arrear more than six years ; in such case, the assessments must be paid in the district where the lands lie : and by sec. 7. no partial payment shall be received, when more than eight years assessments are due. Sec. 8. Imposes a penalty of jC50 upon the treasurer for neglect of duty under this act, to be recovered before the general quarter sessions, upon the oath of one or more witnesses ; one moiety to be paid to the informer and the other to the funds of the district ; and justices in general quarter sessions next after the 1st of July, annually, are required to examine the accounts required by this act, and to as- certain whether the same have been transmitted, together with the monies, to the treasurer of the district interested therein. By 8 G. 4. c. 4. ^ 1. Justices ot' the peace are required to pub- lish an annual account of the receipts and expenditures of the dis- trict funds : and by sec. 2. no treasurer shall be chairman of the quarter sessions. TllEEP By the 43 Eliz. c. 1. "§. 7. Every r^ersou rtho s>hali rob any orchard or garden ; or break or cut an\ hedge, pales, rails or fence ; or dig or pull up, or take up nr<3' (Vuit tree or trees, in any orchard, garden or elsewhere, to the iiuent to take and carry the same away; or shall cut or spoil any woods, or underwoods, poles or trees standing, (the same not being felony by the laws of the realm,) every such person, his procurers and receivers, knowing the same, being thereof convicted by confession, or oath of one witness be- fore one justice, (or mayor,) shall give to the party such recom- pence and satisfaction for damages, and within such time as the •aid justice shall appoint, and the same to be only for ihe Jirst fault: -.'Jm '■-.-*»_.. . ©rrr». 463 I and If such offender shall be thought by the justice not able, or do not make such recompence, then he shall commit him to the con- stable where the offence shall be committed, or the party appre- hended to be whipped. And for every such offence, the person so committed shall receive the said punishment of whipping. And if the constable shall not by himself, or some other, execute upon the offender the said punishment, the jusiice may commit him to the common gaol till he comply, sec. 2. (The same not being felony hy the laws of this realms) the distinc- tion in such case seems to be this : — If they be any way annexed to the freehold, as trees groiving, or apples growing upon the trees, then the taking and carrying them away is noi felony, but only a trespass, for a man cannot steal a part of the freehold ; but if they be severed from the freehold, as wood cut, or apples gathered from the trees, then the taking of them is not a trespass only, but xx felony. By the 22 U 23 C 2. c. 7. If any person shall, in the night time, maliciously, unlawfully and willingly destroy any plantation of trees, or throw down any enclosures, h«j siiall forfeit to the party grieved, treble damages. Sec. 5. And three justices may inquire thereof in six months, as well by a jury as by examination of witnesses on oath, or by any lawful ways, which to them shall seem meet. ^ 6. 7. By the 1 G. st. 2. c. 48. >^ 2. ; and 6 G. c. 16. If any person shall, in a riotous, open, tumultuous, or in a secret manner, forci- bly, wrongfully and maliciously, and without the consent of the owner or person in care thereof, cut down, destroy, break, bark, throw down, burn, take, deface, spoil, or carry asvay any wood, or springs of wood, underwood or coppice woods, or break open, throw down, level o. destroy any hedges, gales, posts, stiles, rail- ing, walls, fences, dikes, ditches, banks or other enclosures there- of, two justices, or the justices in sessions, on complaint made by the owner, ma^ cause the offender to be apprehended, and hear and determine the offence ; and on conviction, shall commit the offender to the house of correction to hard labor for three months; and where there is no house of correction, then to the prison for four months ; and shall order such offender to be publicly whip- ped by the master of such house of correction once a month, during such three months : and where there is no house of correction, the said justices shall order him to be whipped by the common hang- man once a month, during the four months : and by sec. 3. before he shall be discharged, he shall fnid sureties for his good beha- viour for two years. By sec. 4. And if any person shall mali- ciously set on fire, or burn or cause to be burnt, any wood, under- wood or coppice, or any part thereof, he shall be guilty of felony. By the 9 G. c. 22. commonly called the black act — if any per- son shall unlawfully and maliciously cut down, or otherwise de- 404 ^t:tf$^ «!^4l ';ii i: stroy any trors planted in any avenue^ or growing in any gnrden, orchard or plantation, for ornament, shelter or proHl ; or set fire tn any stack of wood ; or forcibly rescue any person in custody for any the said oflfences ; or by promise or reward procure any to join him therein, he shall be guilty of felony, without benefit of rlerp3'. By the 4 G. 3 c. 31. For the better prevcniing the destruc- tion of timber trees, and other trees, under-woods and covert, in forests and chases; it shall b? lawful for c^ery surveyor of his Majcst)*3 woods, and his lawful deputy, and for the officers and keepers of any forest or chase (besides the penalties for destroying the trees or underwoods) to seize and take away for his own use, any saw, axe, hatchet, bill-hook or other instrument, used by any person whom they shall find unlawfully stocking up, sawing, cut- ting down, topping, lopping or destroying any timber tree, or other tree, under-wood or covert within such forest or chase. By the 6 G, 3. c. 36. Every person who shall, in the night limey lop, top, cut down, break, tlirow down, bark, burn or other- wise spoil or destroy, or carry away any oak, beech, ash, elm, fir, chesnut or asp timber tree, or other tree, standing for timber, or likely to become timber, without the consent of the owner thereof; or shall, in the night-time, pluck up, dig up, break, spoil or destroy, or carry away, any root, shrub or plant, roots, shrubs or plants, of the value of hs, and which shall be growing and being in the garden ground, nursery ground or other enclosed ground, of any person, or shall be aiding or assisting therein ; or shall buy or receive such root, shrub or plant, roots, shrubs or plants of the value aforesaid, knowing the same to be stolen,. shall be guilty of felony and transported for seven years. By the 6 Gr. 3. c. 48. Every person who shall wilfully cut or break down, bark, burn, pluck up, lop, top, crop, or otherwise deface, damage, spoil or destroy, or carry away any timber tree or trees, or trees likely to become timber, or any part thereof; or the lops or tops thereof, without the consent of the owner, (or in any of his Majesty's forests, or chases, without the consent of the surveyor or his deputy, or persons entrusted with the care thereof,) and shall be thereof convicted, on the oath of one witness, before one justice, shall, for the first odence, forfeit, not exceeding j£20, together with the charges previous to and attending such convic- tion, to be ascertained by such justice ; and on non-payment thereof, be committed by such justice to the common gaol, for any time not exceeding twelve months, nor less than six months ; or until the penalty and charges shall be paid : for the second of* fence to forfeit, not exceeding jC30, together with charges as aforesaid ; on non-payment, to be committed as aforesaidj for any Etttn. 46ft ill any gnrden, (fit ; or set fire son in custody eward procure without benefit ig the destruc- and covert, in surveyor of his ihe officers and s for destroying for his own use, snt, used by any jp, sawing, cut- timber tree, or St or chase, all, in the night U, burn or other- beech, ash, elm, mding for timber, sent of the owner g up, break, spoil lant, roots, shrubs ;rowing and being [enclosed ground, therein; or shall hrubs or plants of en, shall be guilty all wilfully cut or ;rop, or otherwise ay any timber tree ly part thereof; or the owner, (or in the consent of the h the care thereof,) ane witness, before ot exceeding £20, [iding such convic- on non-payment imon gaol, for any an six months ; or for the second of- jr with charges as s aforesaid, for any time not exceeding eighteen months, nor less than twelve; or until the penahy and charges shall be paid : and if any person shall be guilty of a like oflence a third time, and shall be thereof convic- ted in like manner^ he shall be deemed guilty of felony, and the court before whom he-shall be tried, shall have authority to trans- port him for seven years. And all oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, and birch trees, (and also poplar, alder, larch, maple, and hornbeam, by the 13 Gf. 3. c. 33.) shall be deemed timber trees within the meaning of this act. And every person who shall pluck up, spoil or destroy, or take, carry away, any root, shrub or plant, roots, shrubs or plants, out of the fields, nurseries, gardens or garden grounds, or other cultivated lands of any person, without the consent of the owner, and shall be thereof convicted, upon the oath of one witness, before one justice, shall, for the first ofience, forfeit not exceeding 40 shillings, together with the charges previous to and attending such convic- tion, to be ascertained by such justice; and if not immediately paid, the said justice shall commit him to the house of correction for one month, to be kept to hard labor, and once whipped there : for the second ofience, shall forfeit not exceeding £5, together with the charges as aforesaid ; if not paid immediately, then to be commit- ted to the house of correction for three months, to be kept to hard labor, and whipped there once in every of the said months : and if any person shall a third time commit the like offence, and shall be thereof convicted, he shall be deemed guilty of felony; and the court before whom he shall be tried, shall have authority to trans- port him for seven years. And every person who shall go into the woods, underwoods, or wood grounds, of any of his Majesty's subjects, not being the law- ful owner thereof, and shall there cut, lop. tjp or spoil, split down, or damage, or otherwise destroy any kind of wood, or underwood, ' poles, sticks of wood, green stubs, or young trees, or carry or convey the same away, (or shall by night or day cut down, destroy, take, carry or convey away, any hollies, thorns, or quicksets, growing or being in any of his Mnjesty's forests or chases, or within the woods or wood grounds of any of his Majesty's subjects, 9 Gr. 3. c. 41.) cr shall have in his custody any kind of wood, underwood, poles, sticks of wood, green stubs or young trees, (or any such hol- lies, thorns or quicksets as aforesaid, 9 G. 3. c. 41.) and shall not give satisfactory account how he came by the same, and shall be there- of convicted before one justice, on the oath of one witness, shall, for the first ofience, forfeit, not exceeding 40«. together with the char- ges previous to and attending such conviction, to be ascertained by such justice; and if not paid immediately, the said justice shall f2 466 Strffif* i >i I i i I iii ■1 commit him to the houie of correction for one month, to be kept to hard labor, and once whipped there : for the second offence, shall forfeit, not exceeding £5, together with the charges as afore- said ; if not paid immediately, then to be committed to the house of correction for three months, to be kept to hard labor, and whip- ped there once in every of the said months : and if any person shall commit any of the ofiences aforesaid, a third time, he shall, being duly convicted thereof according to law, be deemed an in- corrigible rogue, and punished as such, (that is, he may, by the 17 Cr. 2. c. 5. Be it remembered, that on the —■ — day of to wit. 5 '•* *he year A. B. was upon the com- plaint of C. D. convicted before — — of the justices of the pea;;e for in pursuance of an act passed in the sixth year for if the prosecution is on the 9 G. 3. c. 41. then say in the ninth year] of his Majesty King George the third, for ..^...^ (as the case ghall be) Given under hand and seal, the day and year above written. Which conviction shall be certified tothe next sessions, there to be filed amongst the records. And the same shall not be quashed for any want of form, nor be removed by certiorari. See also post title, "Wood." _^_ .^, , Commitment for Destroying Trees; on the 1 G. Stat. 2. c, 48. and 6 G. c, 16. (Burn.) To the constable of. in the said district, li- — District, > to wit. 5 ^^^ *° *^^ keeper of the house of correction at ..—^m in the said district. Forasmuch as A. O. of yeoman, 18 this day duly convicted before us, — i— Esquires, two of his .-V -^ Znvnipf$, Ut. 467 tat. 2. c. 48. and Majesty* 8 justices of the peace for the said district, for that he the said A. O. on tiie day of now last past, at ■■ afore- said, in the district aforesaid, did wrongfully and maliciously cut down two asii trees, (or as the case shall be) the property of A. J. of ycoinun, without the consent of him, the said A. J. the owner thereof, or of any other person cliicfly entrusted with the care and custody tliereof. We do, therefore, hereby command you, the said constable, to convey the suid A. O. to the said house of correction at aforesaid, in the district aforesaid, and to deliver him to the keeper thereof, together wiih this precept.— And we do, also, hereby require 3 on, the said keeper of the said house of correction, to receive liiui, the snid A. O. into your cus- tody in the said house of correction, and him there to keep to hard labour for the space of three months now next ensuing, and until he shall find suilicient sureties for his good behaviour for two years. And we do, likewise, hereby order you, the said keeper of the said house of correction, publicly to whip him, the said A. O. once in everv month during the said three tnonths in the market town of in the said district, on tho market duy there, be- tween the hours of eleven and two. And for so doing, this shall be your sufficient warrant. Given under our hands and seals at , in the said district, the day of in the year . .. „^.. ^ ...^...^ ^ • '^ • TURNIPS. - -"'■ By 23 Gr. 3. c. 2G. >^ 13. 14. If any person sliitll steal and take away, or maliciously pull up and destroy any turnips, giouingor being in any grounds bflonginfr to any person, uiul b.^ convicted thereof, within 30 days, by conlcsvion, or oath of one witness, be- fore one justice, he shall, lor the first offence, pay to the owner such damages, and within such lime, as the jiistin? shall appoint ; and shall also pay down, upon conviction, to ihe -*rseers for the use of the poor, such sum, not exceeding 10s. as iti^ justice shall think fit; and if he shall not mjke such recompeMce and pay- ment, the justice may either commit him to the lioiire ofcori'ection, for anytime, notexeeeding one month, or order him to be whip- ped by the constable ; and being convicted of a second ofTence, lie shall be committed to the house of correction for o months. ' ^"V :■; ■'^: ^" ; TUllNPIRES. By staf. 13 G. 3. c. 84. "^ 12. If any person or persons shall wil- fully or maliciously pull down, or otlierwise destroy any turnpike gate, or any post, rail, wall, chain, bar or other fence, belonging 4GQ WLnnvtitp Ut. m to any turnpike gate, or any chain, bar or fence, set up to prevent passengers from passing without paying toil, or any house for the use of such turnpilce, or any crane, machine or engine, erectec^n any turnpike road, for weighing waggons, carts or carriages^ or shall rescue any offender, he or they shall be guilty of felony, and liable to transportation for seven years, or shall be committed to prison for any time, not exceeding 3 years. v^ USUKY. Usury is the offence of extorting an unreasonable rale of in- terest for the loan of money, beyond what is allowed by law,, and from what is said in the books, it appears that usury was original- ly considered an offence at common law. 2 Roll 800. 3. Imt. 151. 152. Com, Dig. Usury (A.) Anon Hardr, 410. The rate of logal interest in this province, is 6 percent, by the 51 G. 3. c. 9. <§ 6. Which also enacts, that all bonds, contracts and as- surances whatsoever, whereby a greater rate of interest shall be reserved and taken, shall be utterly void ; and every person who shall either directly'or indirectly take, accept and receive, a higher interest, shall forfeit and lose for every such ofience, treble of the value of the monies, wares, merchandizes and other things lent or bargained for, to be recovered by action of debt, in the court of King's Bench in this province ; a moiety of such forfeiture to the use of the province, and the other moiety to the informer. VAGRANTS. 1. Idle and Disorderly Persons. By the 7 J. c. 4. Idle and disorderly persons shall be sent to the house of correction ; and by the n G, 2. c, 5. Idle and disorder- ly persons are thus described : 1. All persons who threaten to run away, and leave their wives or children to the parish. 2. AH persons who shall unlawfully return to the parish or place from whence they have been legally removed, by order of two justices, without bringing a certificate from the parish or place whereunto they belong. 3. All persons, who not having wherewith to main- tain themselves, live idle without employment, and refuse to work fur the usual and common wages given to other labourers in the like work in the parishes or places where they are. 4. All persons going about from door to door, or placing themselves in streets, highways or passages, to beg or gather alms in the parishes or places where they dwell — all these shall be deemed idle and disorderly persons. And it shall be lawful for one Justice to commit such offenders (be- :^ ^wtHntn* 469 ing thereof convicted L. fore him, by his own vietv, or confession, or oath of one witness) to the house of correction, to be kept to hard labour, not exceeding one month. And any person may ap- prehend and carry before a justice, any such persons going about from door to door, or placing themselves in streets, highways or passages, to beg alms in the parishes or places where they dwell, and if they shall resist or escape from the person apprehending them, they shall be punished as rogues and vagabonds. 2. Rogua and Vagabonds, By 17 Gf. 2. c. 5. The following persons shall be deemed rogues and vagabonds : 1. All persons going about as patent gatherers, or gatherers of alms, under pretences of loss by fire, or other casual- ty. 2. Persons going about as collectors for prisons, gaols or hospitals. 3. Fencers. 4. Bearwards. 5. Common players, not authorised by law. 6. Minstrels. 7. Jugglers. 8. Gypsies. 9. Or pretending to have skill in physiognomy, palmestry, or like crafly science, or to tell fortunes. 10. Or using any subtile craft to deceive and impose on any of his Majesty^s subjects. 11. Or playing or betting at any unlawful games or plays. 12. All per- sons who run away and leave their wives or children chargeable to any parish or place. 13. All petty chapmen and pedlers wan- dering abroad, not being duly licensed, or otherwise authorised by law. 14. All persons wandering abroad and lodging in ale-houses, barns, out-houses, or in the open air, not giving a good account of themselves. 15. All persons wandering abroad and begging, pretending to be soldiers, mariners, or seafaring men. _ 16. Or pretending to go to work in harvest. 17. And all other persons wandering abroad and begging, shall be deemed rogues and vagabonds. r^., 3. Incorrigible Rogues are thtu described. I. All end-gatherer? offending against the statute of the 13 G. being convicted of such offence. 2. All persons apprehended as rogues and vagabonds, and escaping from the persons who ap- prehended them. 3. All rogues or vagabonds who shall break or escape out of any house of correction, before the expiration of the term for which they were committed or ordered to be confined by this act. 4. All persons who, after having been punished as rogues and vagabonds, and discharged, shall again commit any nf the said offences — all these shall be deemed incorrigible rogues. Sec. 4. . PI H H 1 H i kem l« Wm 1 470 s^aor^titfif* 4. Apprehending Rogues, If any person ehnll be found oiTending ogainst this act, the constable shall apprehend him, und convey, or cause him to be conveyed, to a justice of the peace. 17 0. 2. c. 5. ^ 5.-— under the penalty of lOs. for such refusal. lb. And any other person may apprehend and carry him to the constable, or to a justice. 5. Punishment. And such justice shall order such person so apprehended to be publicly whipped by the constable, or shall order him to be sent to the house of correction, (or common gaol. 27 G. 3. c. 11.) till the next sessions, or for any less time, as such justice shall think proper. 17 G. 2. c. 5. § 7. And if committed till the sessions, and the justices at such sessions shall, on examination of the case, adjudge such person to be a rogue or vngnbond, or an incorrigible rogue, they may order such rogue or vagabond to be detained in the house of correction for any further time, not exceeding six months ; and such incorrigible rogue, for any further time not exceeding two years, nor less than six months, and during his confinement to be whipped in such a manner, and at such times and places, as they shall think (It. And if such incorrigible rogue, so ordered by the sessions to be detained in the house of correc- tion, shall break out, or make his escape, or shull offend again in like manner, he shall be guilty of felony, and he transported for seven years. 17 G. 2. c. 5. ^ 7. 8. 9. And by the 13 ^ 14 C. 2. c« 12. the justices in sessions may transport such rogues, vaga- bonds, and sturdy beggars, as shall be duly convicted and ad- judged to be incorrigible. Sec. 23. I f i.*!! V- ..jii.;.'.. . ^_ 6. Penalty on lodging Vagrants. If any person shall knowingly permit any rogue, vagabond, or incorrigible rogue, to lodge or take shelter in his house, barn, or other OMt-hoiise or buildinEJC, and shall not apprehend and carry him before a justice, or give notice to the constable to do so, he shall forfeit not exceeding 40?. nor less than lOs., upon conviction before one justice — lialfto the Informer, and half to the poor, by distress and sale. 17 Cr. 2. c. b. ^ 23. 7. General penally for hind' ring the cxcriition of the Vagrant Act. If any constable, or otiier oHicer, or governor of any house of correction, &i)a!l be defective in his duty ; or if any person slinll WavvHVLt, $cr. 471 hinder ihe execution of this act, or ihall rescue any person appre- hended, or aid tliereiii, he shall, on conviction before one justice, forfeit not exceeding £5, nor less than lOs., and in default, be committed to the house of correction, with hard labour, not ex- ceeding two months. 17 G. 2. c, 5. ^ 22. * . ' It WARRANT. A Warrant is a precept under the hand and seal of a magis- trate or other public functionary, directed to some officer, either to arrest an oflcnder or to seize or distrain upon his goods, to be dealt with respectively in cither case, according to law. A war- rant can only be executed by some one or more of the persons to whom it is directed, unless, indeed, it be directed to the sheriff, who may either by parol or by precept in writing, authorise an officer, sworn and known, to execute it, but the sheriff cannot era- power any other person without a precept in writing. 1 Haw, e. 60. <^ 1 1. If the warrant direct the officer to cause the party com- plained of to come bcfure some justice of the peace, to find surety fur keeping the peace, the ofiicer, before he makes any arrest, ought first to require the party to go with him, and find sureties according to the purport of the warrant, and if he refuses, the officer may carry him by force before the magistrate, or confine him in some gaol till he can be conveniently brought before the magistrate. ibiJ. If the warrant specially direct that the party shall bo brought before the justice who issued it, the officer ought not to carry him before nny other; but if the warrant be general, to bring him before any justice, the onicer has then the election to bring hiui before what justice he pleases, and may carry him to prison for refusing to obey the warrant. Ibid. In what cases, and in what form a warrant may be granted for the apprehension of a party, see ante '* Arrest," p. 34; "Justices of the Peace," p. 26G. For what cause, and in what form a warrant of commitment may be issued, see " Commitment," p. 1 13. And see further, '* Distress * Search Warrant," and " Habeas Corpus." WEIGHTS AND MEASURES. By 4 Gr. 4. c. 17. The secretary shall furnish each district with a true standard. Sec. 4. Magistrates in quarter sessions shall ap- point one inspector to take charge of all such weights and mea- sures, whose duty shall be, at all proper times when application is made to him, carefully to examine and compare all weights and 472 ci2reCj|fit0 ^M SiAtunuxt», nWvl. measures presented to him with the standard in his charge, and when found true, to stamp the same (if a measure) as near the two ends or top and bottom, as may be, G. W. R. for which he shall receive for every piece so marked, 4d. and no more. Sec. 5. In- spectors may be removed and others appointed by the magistrates, as often as they shall think proper ; and every inspector before entering upon his office shall take the following oath. ** 1, A. B. do sincerely promise and swear that 1 will carefully preserve all such weights and measures as shall be given me in charge as a standard for the district of ' and that 1 will hon- estly and faithfully discharge the duties of inspector of weights and measures for the district of ■ according to the true intent and meaning of an act of parliament of this Province, passed in the fourth year of the reign of King George the fourth, according to the best of my abilities and knowledge, and deliver them over to my successor in office, duly appointed for that purpose, when required so to do. So help me God." Sec. 6. And all store* keepers, shop-keepers, millers, distillers, butchers, bakers, hucksters, and other trading persons, who shall have in his possession any v*'eight8 or measures, whereby he sells or buys any articles, other than such as have been examined and stamped as aforesaid, shall, upon being convicted before any one justice, on the oath of one witness, forfeit £2. for every offence, to be levied, with reasonable costs, by distress and sale, and in de- fault the offender shall be committed to the common gaol for a term not exceeding one month. Sec. 7. One moiety of the penalty shall be paid to the informer and the other to the province. Information for having Weights S^c. contrary to the Statute. ■ ■ to wit. The information and complaint of A. B. of being a person duly appointed and sworn to examine the weights and measures within the district of preferred at a petty ses- sions held for the said district, at . , in the said district, before us J. C. and S. P. esquires, (or before one justice) justices of the peace for the said district, whose names are hereunder written, this day of in the year of our Lord 18 who saith, that on the day of one C. D. of grocer and shop- keeper, (he the said C. D. being a person who sells by retail and weight, goods, wares and merchandizes,) at the dwelling-house and shop of him the said C. D. situate at •— — in the said district, then and there had in his possession, in his snid dwelling-house and shop, certain weights and measures, to wit, [here describe them] whereby he the said C. D. sold and bought, and which were not duly marked and stamped, as by law is required, contrary to the Witt. 473 I charge, and 8 near the iwo which he shall Sec. 6. In- le magistrates, ipector before h. will carefully )e given me in hat 1 will hon- lor of weights the trne intent ince, passed in irth, according liver them over purpose, when Hers, distillers, sons, who shall rhereby he sells 1 examined and before any one very offence, to sale, and in de- lon gaol for a y of the penalty irovince. \the Statute. form of the statute in that case made and provided, whereby he (he said C. D. hath incurred the forfeiture of £2. imposed by the said act of parliament, for the said offence, and therefore he pray- eth that he may be summoned according to law. Exhibited before us, the — day of 18—. N. ft.— The above information should not be upon oath. The party informing being interested in thr penalty is not therefore a competent witness ; but in support of the conviction one other credible witness, not interested, should be called and sworn. Proof of either buying or selling will be sufficient. Summons thereon. ;^«^ ' ' ■ . • .r' To C. D. of — to wit.. Whereas A. B. of in the said district, being a person duly appointed and sworn to examine the weights and ._!•!-:_ .L. J...?.. /. hath this day preferred an day of at measures within the district of. information against you, for having on the . your dwelling-house and shop, situate at .^_ in the said district, in your possession certain weights and measures, to wit, [here des' cribe theni] whereby you sold and bought, and which were not duly marked and stamped as by law is required, contrary to the form of the statute in that case made and provided, whereby you the said C. D. have incurred the forfeiture of £2. imposed by the said act for the said offence ; these are therefore to require you personally to appear before us, or such other of his Majesty's jus- tices of the peace for the —— . district, as shall be present at the petty sessions to be holden at _— in the said district, on the ■ ■ day of-.^ at . ■ o'clock in the forenoon of the same day, then and there to answer the premises. Herein fail you not. Given under our hands and seals this — ..-. day of _— . Conviction. The conviction must be in the general form required by the 2 TF. 4. c. 4. see title *^ Conviction," — see the form ante p. 139. See also titles " Distress Warrant," ante p. 150, and " Commit- ment," ante p. 119. WIFE. The Wife of a man (in legal language a feme covert) is so much favored in law on account of the matrimonial subjection due from her to her husband, that if she commit theft, or even a burglary, by his coercion, or merely in his company, when the law presumes a cocrcioii, she is held to be exempt from punishment ; being con- II 474 WiiU* y»': eidered as acting in either of these instances by compulsion, and not of her own free will. This doctrine, Sir Wm. Blackstone observes, is at least a thousand years old, being to be found among the laws of King Ina, the West Saxon. 4 BL Com, 28. The presumption of coercion, however, does not amount to more than a prima facie presumption of law, and therefore, if it clearly appear in evidence that the wife was not drawn to the offence by the husband, but that she was in fact the principal instigator of it, or was acting herself as a free and independent agent, she is in this case guilty as well as the husband. If the wife also procure her husband to commit the offence, she is then an accessory before the fact, in the same manner as if she had been sole. 1 Hale 516. 2Haio. c. 29. ^31. . ' There are also some exceptions as to (he impunity of the wife in committing crimes, even though acting under the coercion of her husband, by reason of the heinousness of the offence commit, ted. Thus, in treason, no plea of coverture shall excuse the wife. 4 Bl, Com. 29. In murder also, and offences of the like descrip- tion which are prohibited by the law of nature, and are mala in se, the wife is held a responsible agent notwithstanding the coer- cion of her husband. In inferior misdemeanor, there is also another exception as to (he irresponsibility of the wife, for she may be indicted and pun* ished with her husband for keeping a brothel ; this being consid* ered to be an offence touching the domestic economy of the house, in which the wife has necessarily a principal share, and of that de* £cription, moreover, which the law presumes to be generally con- ducted by the intrigues of the female sex. 1 Haw. c. 1. sec. 12. But a prosecution for a conspiracy is not maintainable against lius- band and v.'ife only, because they are esteemed but one person in law ; and in order (o support an indic(ment for conspiracy there must be a conspiring between two persons at the least. 1 Haw.c, TZ. sec. 8. In all cases, however, where the wife offends alont^ without (he company or coercion of her husband, she is (hen as much responsible for her offence as any feme sole. 4 Bl. Com. 29. And whenever she commits an offence in (he absence of her hus- band, it will be no excuse that she committed it by his order. jR.r, i Morrisy B. &f R. 270. If a woman receives stolen goods into her | house, knowing (hem (o be so, or lock (hem up in her ches( or cham- ber, without (he knowledge of her husband, she alone may be indict- ed. Bu( if (he ignorance of the husband is not satisfactorily proved, as by his continued absence from home, or by other circumstances, the law will, in most cases, impute (he receiving to him, and not I to the wife. Dalt. c. 157. p. 353. Although (he husband may be indic(ed as an accessory for receiving (he wife, knowing her to Wiitt. 475 ompuUion, and fat. BlacUstone ig to be found t BL Com. 28. amount to more fore, if it clearly a the offence by il instigator of it, agent, she is in wife also procure I accessory before iole. 1 Hale 616. ,unity of the wife ler the coercion of le offence commit- ill excuse the wife, of the like descrip- ;, and are mala m islanding the coer- her exception as to ; indicted and pun- p this being consid- )noroy of the house, lare, andofthalde- 9 be generally con- Haw. c. 1. sec. 12. unable against bus. d but one person \\\ ar conspiracy there be least. 1 Haw.c. wife offends alone, jand, she is then as fO?e. 4 Bl. Com. 29. absence of her bus- it by his order. R'VA stolen goods into bet I lin her chest or cbani- alone may be indici- satisfactorily proved, other circumstances, ling to him, and not h the husband may ife, knowing ber 19 have committed a felony, yet the wife shall not be deemed an ac- cessory for receiving her husband. Neither is the wife affected by receiving jointly vith her husband a third person^ who has com- mitted felony; e' tept in case of treason. But if she alone, in the absence of h r ,sband, and without his knowledge, knowingly receive a felon, ^he may then be indicted as an accessory, and not the husband. 1 Haht 47. 621. 1 Haiv. c. 1. § 10. A wife cannot be convicted of felony in stealing her husband's goods. But if the wife take the goods of her husband and deliver them to B. who elopes with her and the goods, as her adulterer^ this will then be felony in B. DalL c. 10. PL 268. jR. v. Tolfree, Ry. Sf M. 243. Husband and wife being but one person in law, and their interest absolutely the same, they cannot give evidence for the benefit of each other, Gilb. JEv. 119.; not even by the consent of the other party, Cas. Temp. Hard. 264. ; neither can they be witnesses against each other, 1 Phil. 84. ; except in cases of personal injury to the wife, when she is on the principal of hu- manity and justice, as well as necessity, admitted as a witness against her husband ; as where the husband is indicted for shooting at her, or attempting to poison her, or for assaulting and beating her. 1 Str. 633. B. N. P. 287. JR. v. Whiteh'ouse. 2 Russ. 606. i?. 0. Jagger, lb. But in these cases, the wife ought only to be ad- mitted to prove facts, which cannot be proved by any other wit- ness. Per. Holroyd. J. 2. Russ. 606. So her dying declarations are admissible against him, in the case of murder. R. v. Woodcock. 1 Leach. 500. R. v. John^ lb. 504. n. (a.) So the wife is always permitted to swear the peace against her husband. lb. Finally, it seems to be allowed that in all cases where a wife is a competent witness against her husband, she is also an admissible witness for him. R. V. Perrt/y cit. in. R. v. Serjeant. 1 Ry. Sf M. 354. And the same rules of necessity which admit the wife to give evidence 9'^ainst her husband, will also permit the husband to be a witness against the wife, in cases of personal injury, — such as murder, assault, and surety of the peace where any violence is threatened by the wife, against the husband. There is a foolish notion prev- alent with the lower orders in England, that if a man sell his wife with a halter round her neck in marJcet overt, this operates as a divorce, " a vinculo matrimonii," and that both buyer and seller may lawfully make such a bargain. Such a brutal act is, how- ever, grossly illegal, and indictable at common law, as a misde- meanor. • ■ ' : ' ' Wills. — See Register Oflire. 476 WINES, &c. j,'i By 40 O, 9. c. 4. Entitled "an act for the summary conviction of persons selling spirituous liquors by retail, without license," it is enacted that if any person shall directly or indirectly sell any wine, brandy, rum, or other spirituous liquor by retail, without a license, such person having been summoned to appear before any three or more justices, and lawfully convicted by the oath of one or more witnesses, shall forfeit JC20, to be levied with costs of suit, by distress and sale, one half to the informer and the other to the province; and in default of distress, committed to the gaol of the district three calendar months. Sec. 2. Upon information upon oath, any one justice may issue his warrant against any offender not usually resident in the place, and compel him to enter into re- cognizance with one or more sureties to appear at the hearing ; and in default of bail, commit him to gaol until complaint disposed of. Sec. 3* No shop-keeper, duly licensed, shall sell less than one quart, under the penalty of j£20, to be levied as aforesaid* Sec. 4. Information to be laid within six calendar months. Information for selling Wine, Sfc, without a License, (Arcbbold.) Penalty, £20. 40 G. 3. c. 4. Commencement as in the form ante. p. 239.] informeth us, that C. D. late of the township of , in the district aforesaid, yeo- man, within the space of six calendar months now last past, to wit. on the — ^ day of——, in the year aforesaid, at the township aforesaid, in the district aforesaid, did sell wine, [brandy^ rum, or other spirituous liquort"] to wit. one quart of wine, by retail, with- out being duly licensed so to do, contrary to the form," &c. [as ante. p. 239. to the end."] Summons^ Same as the form ante. p. 438. Warrant against the Defendant, if tici usually resident in the place. Home District, > To the constable of , in the said district : to wit. 5 Whereas C. D. of — , hath this day been charged before me, J. P. one of his Majesty's justices of the peace for the district aforesaid ; fur that he, the said C. D. on the day of——, &c. [here state the matter as laid in the information.] These are therefore to command you, in his Majesty's name, forth- with to apprehend and bring him before me, or some other of his Majesty's justices of the peace for the said district, the body of thf wim»p ut. 477 unary conviction ihout license," it tdirectly sell any retail, without a ppear before any f the oath of one with costs of suit, I the other to the to the gaol of the information upon kinst any offender n to enter into re- ir at the hearing ; complaint disposed II sell less than one s aforesaid* Sec. lonths* >nse, (Akchbold.) informeth us, that ict aforesaid, yeo- w last past, to wit. , at the township [brandyj rum, or ne, by retail, with- he form," &c. [a$ esident in the placi. the said district: tath this day been usiices of the peace _. D. on the - — In the information.] kesty's name, foith- Ir some oilier of his let, the body of the said A. B. to be dealt with according to law.— Herein fail you not. Given under my hand and seal, the day of , in the year of our Lord . J. P. N. B.— The act requires, in case a warrant is issued, tliat an inforniation upon oath should be previously taken. The justice should therefo 'c, before granting the warrant, require the inronner to produce his witness, whose deposition should be taken in writing and sworn to. This deposition should also state that the defendant ii not usually resident in the district. Recognizance on the above Information. The form of the recognizance will be the same as ante, p. 384. The condition of this recognizance is such, that if the above bounden C. D. shall and do personally appear at the hearing of the said complaint, on ^— , the — day of next, at the township of , in the said district, at the hour of ■ in the forenoon of the same day, before such of his Majesty's justices of the peace as shall be then and there assembled in petty sessions, and (hen and there answer to the complaint charged against him in the said information, and not depart without leave, then this recognix- aoce to be void, or else to remain in full force. Commitment for want of Sureties, Home District, ) To the constable of in the said district, and to wit. > to the keeper of the common gaol at Toronto, in the said district : Whereas C. D. late of stands charged by an information in writing, upon the oath of a credible witness, exhi- bited and sworn before me, J.P.Esq. one of his Majesty's justices of the peace for the said district, for that he, the said C. D. on the ■ ' - day of , &C. {I'eciting the matter charged in the information.'J And whereas, the said C. D. not being usually a resident within thia district, but commonly residing out of the same, is now required by me, the said justice, to enter into a recognizance with sufficient sureties, that is to say, himself in — — pounds, and each of his I sureties in the sum of pounds for his appearance at the hear- jing of the said information, on the — — day of , at — — aforesaid, in the district aforesaid, before such of his Majes- ty's justices of the peace as fhall be then and there assembled tin petty sessions, pursuant to the statute in such case made laud provided ; but the said C. D. hath neglected and refused so ho do : These are therefore to command yon, the said constable, [to take the said C. D. and him safely to convey to the common [gaol at Toronto, aforesaid, with this precept : and 1 do hereby Icommand you, the said keeper, to receive the snid C. D. into the isaid common gaol, and him there safely keep until the ■ - day )f •— — next ; when you, the said keeper, are hereby required to )ring him, the said C. D. before the said justices, to answer the said complaint charged against him in the said information, at "1 I! |!li„ ( ill 478 W^itmmcti. , in the said district, unless the said C. D. shall sooner enter into such recognizance as aforesaid. Given under my hand and seal, Uc, The conviction should be in the form required by the 2 TV. 4. c, 4. See ante. p. 139. See also title "Distress Warrant," ante, p. 150. and "Commitment," ante. p. 119. WITNESSES. Witnesses may be compelled to give their evidence in criminal cases by recognizance or subpoena. If a witness examined before a justice, refuses to be bound over, the justice may commit him. 2 Hahj 284. And where a married woman refused to undertake to appear at the trial, or to find sureties for her appearance, the magistrate was held justified in committing her. 3 M. ^ S. 1.— But though a person may be committed for not entering into re* cognizance to prosecute and give evidence, yet the party shall not be committed for his inability to find a person to join in such re- cognizance ; his own recognizance is all that can or ought to be required. Arch. Com. 12. Toone, 270. If the witness, after being served with a subj^oena, neglect to appear, an application may be made to the court of king's bench, for an attachment against iiini. jR. V. Ring, 8. T. R. 585. 1 Star. Ev. 119. A witness, whether bound over or subpcenedi or attending voluntarily for the bona- Jide purpose of giving evidence, is privileged from arrest eundo^ redeundo, et morando; if no more than a necessary time is occu- pied by him upon either of those occasions. 1 11. B. 636. 2 Bl 1113. In allowing witnesses time sufficient for these purposes, the courts are always disposed to be liberal. 1 PJiil. Ev. 4. Ifa witness, under such circumstances, be arrested, the court out of which the subpcena issued, or the judge of the court in which the cause has been tried, will, upon application, order him to be dis- charged; but this privilege of a witness does nol extend to arrests by his bail, for the purpose of surrendering him ; for he is sup- posed to be in their custody even while he is attending as a wit- ness. Exp. Lyne. 3. Star. Rep. 132. By Stat. 3 W. 4. c. 3. '^ 8. It is enacted, that when the atten- dance of any person in gaol or upon the limits, shall be required in court, at the assizes, the court shall and may in its discretion, order the sherifi", gaoler, or other person having the custody of such prisoner, to deliver him to the person named in such order to receive him, which person shall thereupon instantly convey such prisoner to the place where the court issuing such order shall be sitting, to receive and obey such further order as to tlie said court shall seem meet, provided that no prisoner for debtor damages be removed out of the district. Witntmtf$. 479 shall sooner enter ider my hand and ed by tlie 2 JV» 4. ss Warrant," ante. vidence in crimuial Bss examined before e may commit him. efused to undertake ler appearance, the ,er. 3M. ^S. 1— 01 entering into re- et the party shall not 1 to join in such re- t can or ought to be e witness, after being n application may be achment against him. A witness, whether mtarily for the bona- d from arrest eundo, Bcessary time is occu- 1 H.5. 636. 2BI for these purposes, l Phil Ev. 4. If a ted, the court out o( [he court in which llie order him to be dis- not extend to arrests him; for he is sup- is attending as a wit- g, that when the aiten- Vits, shall be required I may in its discreuon, Ibaving the custody o( 1 named in such order | pon instantly convey Irt issuing such order further order as to the loprisoner for debtor To dissuade, or endeavour to dissuade a witness from giving evidence against a person indicted, is an oflencc at common law, though the persuasion should nut succeed, and for which the party may be indicted as for a misdemeandr. 1 Haw. P, C. c. 21. <^ 15. R. V. Latdeyt 2 Stu 904. Payment of the Expenses of Witness, In civil cases, a witness is not bound to attend unless his rea- sonable expenses be previously tendered to him, but in criminal rases he is bound to attend unconditionally. 2Hauf. c.4Q.^ 173. But, several statutes enable the court to allow prosecutors and witnesses a remuneration for their expenses and loss of time, and in one particular instance entitle the witnesses to a tender of ex- penses. By Stat. 25 G. 2. c. 36. <§ 11. The court before whom any per- son hath been tried and convicted of any grand or petit larceny, or other felony, may, at the prayer of the prosecutor, and on con- siderauon of his circumstances, order the treasurer of the county in which the offence shall have been committed, to pay him such sum as they shall judge reasonable, not exceeding the expenses he was put to in carrying on the prosecution, with a reasonable allowance for his time and trouble ; and the clerk of assize or of the peace, shall forthwith make out such nn order, and deliver the same to the prosecutor, on paying Is., nnd (he treasurer shall pay the same on sight, and be allowed the same in his accounts. By Stat. 27 G. 2. c. 3. ^ 3. When any poor person shall appear on recognizance in court to give evidence in cases of grand or petit larceny, or other felony, the court may order the treasurer to pay him such sum as they shall think reasonable for his time, trouble and expenses ; which order the proper officer shall make out for the fee of 6f/. And by stat, 13 G. 3. c. 19. § 7. The court before whom any person hath been tried and convicted of any grand or petit larceny, or other felony ; or before whom J,ny person hath been tried and acquitted of any grand or petit larceny, or other felony ; in case it shall appear to the said court that there was a reasonable ground of prosecution, and that the prosecutor had bo- na fide prosecuted, may order the treasurer to pay to such prose- cutor such sum as they shall think reasonable, not exceeding the expenses he was bona fide put unto ; making also, if he shall ap- pear to be in poor circumstances, a reasonable allowance for his trouble and loss of time ; which order the clerk of assize or clerk of die peace respectively, shall forthwith make out and deliver to him, on being paid for the same Is. and no more ; and the trea- surer, upon sight of the order, shall forthwith pay the same. 480 Wt!fitntfm$n. Ill 'i For the formi of " Summons," ** Warrant," and " Recogni- zance" of a witness, see title "Justice of the Peace," ante. p. 268. 209. 271. Commitment of a Witness J or refusing to enter into his own RecognU zanee to appear and give Evidence, Home District. ) To the keeper of the gaol at , in the said to wit. ) district : — Forasmuch srn A. B. whose body is herewith sent you, hath admitted before me, J. P. Esq. one of his Majesty's justices of the peace for the said district, that [he was present when a certain felony and robbery was committed upon the person of A. B. on Friday last, at ■,] but hath refused to be examined upon oath respecting the said felony, and to enter into his recognizance now here required by me, the said justice, in the sum of to appear and give evidence upon a bill of in- dictment to be preferred at the next assizes and general gaol de- livery for the said district, against C. D. who stands charged with the said felony ; and the said A. B. being a material and necessary witness for the prosecution in such case : these are therefore to au- authorise and require you, the said keeper, to receive the said A. B: and him safely keep in your custody until he shall enter into such recognizance in due form of law— or be otherwise discharged in due course of law ; and for so doing, this shall be your sufficient warrant. Given under my hand and seal, at , this — — day of "^^"^j Io«5"^. 1^ -,".' ■■■■^■r f'-.'..ut' .ii- "*)i"««t • J. "» •(■«k<>f«f; • Another Form, (Toone.) District, ? To the constable of to wit. u the common gaol at and to the keeper in the said district. Whereas, A. B. was this day charged before me, J. C. Esq. one of bis Majesty's justices of the peace in and fur the — — district, with having feloniously stolen ■ the property of C. D. of yeoman, and upon the examination of the said A. B. one E. F. of in the said district, labourer, did give material evidence on oath, before me, the said justice, against the said A. B. touch- ing the said felony ; whereupon the said E. F. is required by me, the said justice, to become bound in a recognizance in the sura of jS..i conditioned for his personal appearance at the next ge- neral quarter sessions, to be held in and for the said district, then and there to give evidence as he knowetb, on the part of our lord the King, against the said A. B. on his trial for the said felony ; but inasmuch as the said E. F. hath obstinately and contemptu- ously refused to enter into such recognizance ; these are, in his Witmmtn: 481 nd •♦ Recogni- ," ante. p. 268. it< own Rccogni- ,i««, ID the said \. whose body is , Esq. one of his :t, that L*»e "^^^ committed upon t hath refused to ny, and to enter the said justice, upon a bill of in- general gaol de- nds charged wiili rial and necessary re therefore to au- eive the said A. B. all enter into such ise discharged in be your suflScient —.this- "day J. P. and to the keeper in the said district. J. C. Esq. one the — district, y of CD. of-— A. B. one E. F. material evidence said A. B. touch- is required by ine, ince in the sura of ice at the next ge- said district, then le part of our lord ,r the said felony; ly and conlemptu- theie are, in his M ijesty's name, to command you, the said constable, forthwith to i ■^'.vey and deliver the said E. F. into the custody of (he keeper of the common gaol aforesaid, together with the duplicate of this, my warrant ; and also, to command you, the said keeper, to receive the said E.F. into your custody in the said common gaol, and him there safely to keep, until the next general quarter sessions, to be held in and fur the said disu-ict, or until he shall enter into such re- cognizance as aforesaid. Given under my hand and seal, &cc. give Evidence, Form of an Indictment for dissuading a Witness to gi (Chitty.) , . Home District, > The jurors, &ic. That on, &£c. a certain writ of to wit. > our lord the King, called a subpoena ad testi» ficandum^ had been and was duly issued and tested, by and in the names of C. D. of &£c. at &:c. the same day and year aforesaid, the said C. D. then and there being custus rotutorum, In and for the said district, which said writ was directed to E. F. and G. H. by which said writ our said lord the King commanded, &z;c. (recite the writ.) — And the jurors, Uc, do further present that a copy of the said writ was on kc. at &:c. duly served on the said J. K. who then and there had notice to appear and give evidence according to the exigency of such writ, and that the evidence of the said J. K. at the time of issuing the said writ, and from thence until and open the said &£c> therein mentioned, was material and necessary to have been given before the said grand jury, on the said bill of indictment so to be preferred against the said A. B. as aforesai.d; and that at the sessions of the peace, holden by adjournment at afnrpgftiH, in aud fof the said district, on he. aforesaid, such bill of indictment was preferred against the said A. B. to r^tnd be- fore a certain grand jury, then and there duly assembled 'n that behalf. And the jurors, &£c. do further present that A. B. late of be. being an evil disposed person, and contriving and intending to obstruct and impede the due course of justice on &^c. at Uc, unlawfully and unjustly dissuaded, hindered, and prevented the said J. K. from appearing before the said justices at the said ses" sionsof the peace, holden as aforesaid, to testify the truth and give evidence before the said grand jury, on the said bill of indictment so preferred against the said A. B. as aforesaid ; (and the said A. B. in consequence thereof, did not so appear and give evidence according to the exigency of the said writ,) to the great obs(.''i >■». fiy 11 Gf. 4 ^. 17. Which also repeals a former act on this sub* ject, 49 0* 3. It is enacted, that every person who shall kill a wolf or wolves, and shall take' the heads thereof, with the ears on the same, before any one of his Majesty's justices of the peace in the district where the same shall have been killed, and shall make oath, or otherwise prove to the satisfaction of the said justice, that the same was or were killed within said district, or within 5 mllei of an aetuaf settlement in the said district, the said justice having first destroyed the bead or heads, shall give to such person or per- ions a certificate of the fact having been proved to his satisfaction, and such certificate being presented to the treasurer of the district^ •hall authorise the person or persons presenting the same, to de- mand and receive from the treasurer, the sum of one pound for the head of every wolf so killed. % 3. The treasurer is to pay the same out of the district money in his hands, or if not sufficient, then out of the next monies received. ^ 4. But such bountiei are not to be paid, until certain other district expenses are paid. ^ 5. When tlie district funds shall not be sufficient, such certifi* tates shall be a lawful tender to the full amount, for any district rate or assessment, and shall be accepted by the collector accor- dingly. % 6. This act to continue for 4 years, and to the end of the next session of pair! lament. V, B.— Thif act wW ezpir* with tbt ceMion of parllaneot la 188 To (he constable of 5 Whereas A. J. of District, to wit. 5 Whereas A. J. of , yeoman, hath this day made oath before me, J. P. Esq. one of his Majesty's Justices of the peace for the said district, that divers quantities of wood, within the space of six weeks last past, have been cut, taken, and cariled off and from his lands at , and (hat he hath just cause to kus- pect, and doth suspect, that the said wood, or part thereof, is con- cealed in the houses, out-houses, yards, gardens, or other placet belonging to such houses of A. O. of , yeoman, at <— ~— afore- said : these are therefore to require you to enter into and search (he said houses, out-houses, yards, gardens, or other places be- longing to such houses of him the said A. O. at aforesaid; and if, ou such search, yon shall there find any such wood, that iheu you apprehend the person in whose house, out-house, or other place it shall be found, and bring him before me, or sonne othfr ()f his Majesty's justices of the peace for the said district, that such proceedings may be had thereupon as to law doth appertain. Given under my band and seal, at , in the year .' Order for Satisfaction to the Owner— 'On the 15 C. 3. r. 8. (Buiur.) — District, ) Whereas A. J. of. to wit. ) man, on the ..*«. in the said district) yeo- day of I now last past. did make oath before me, J. P. Esq. one of his Majesty's justicea of the peace for (he said district, that on or since the , , day of —.-i. now last past, a certain quantity of wood, the property of liim, the said A. J. at in the township of , , , in the dis- trict aforesaid, was cut and spoiled, and from thence taken and car- ried away; and that he had just cause to suspect, and did suspect, that A. O. o f ■ , in the said dislrlci, yeoman, did cut, spoii, take, and carry away the same : and whereas, the said A. O. was, on the day of now last past, apprehended by A. C. constable of , in the said district, carrying wood suspectd to be stolen by him, tlie said A. O. [or, whereas a certain quantity of wood, to wit. (here specify the same) suspected to be stolen was (his day, by virtue Os my watt ant for that purpu&e dire^^d tA ibe cpn«tabld m k ini V''i 1/ "466 9900ir. of — -I in the laid district, found in the houle, (or other placet) of the said A. O. at ai'oresaid;] and whereas, the said A. O. being now brought before me, hath not given to me any satisfac- tory account how he came by the said wood, nor can produce the party of whom he bought the same, nor any credible witness to testify upon oath the sale thereof; therefore the said A. O. is con- victed by me, of cutting, spoiling, and taking away the said wood : and whereas, it is also duly proved before me, that A. J* of ,. aforesaid, yeoman, was and is the owner of the said wood, and that the said offence was committed at ~— aforesaid, in the dis- trict aforesaid ; 1 do therefore hereby order and appoint the said A. O. within the space of ■ days now next ensuing, to pay unto the said A. J. the sum of , in recompence and satisfac- tion for damages done unto him, the said A. J., by him, the said A* O. in cutting, spoiling, taking, and carrying away the said wood : and I do also hereby order the said A. O. within the space of days now next ensuing as aforesaid, to pay to the treasurer of the said district, for the use of the said district, and to be applied and accounted for as by law is directed, the sum of lOs. for his said offence. Given under my hand and seal, at , in the year * :>. . .. f. . Commitment thereupon /ornon-payment (Bimic.) — — District, > To the constable of , and to the keeper of to wit. 5 the house of correction at in the said dis- trict : — Whereas A. J. of in the said district, yeoman, on the ...^ day of now last past, did make oath before me, J. P. Esq. one of his Majesty's justices of the peace for the said district, that within the space of six weeks then last past, a certain quantity of wood, the property of him, the said A. J. at , in the township of ., in the district aforesaid, was cut and spoiled, and from thence taken and carried away ; and that he had just cause to suspect, and did suspect, that A. O. of , in the said district, yeoman, did cut, spoil, take, and carry away the same: and whereas, the said A. O. was on the — _ day of now last past, apprehended by A. C. constable of , in the said district, carrying wood suspected (o be stolen by him, the said A. O. ; for, whereas a certain quantity of wood, (specifying the particulars,) suspected to he stolen, was, on the .-.— day of now last past, by virtue of my warrant for that purpose, directed to the constable of , in the said district, found in the house, (or other place) of the said A. O. at , .. aforesaid :] and where- as, the said A. O. on the day of now last past, hav- ing been brought before me, did not and could not give to me ^^ WOffif. 48^ any satisfactory account how he came by the laid wood, nor could produce the party of whom he bought the same, nor any credible witness to testify upon oath the sale thereof; and thereupon was by me convicted of cutting and spoiling the said wood, and ordered to pay to the said A. J. the owner of the said wood, the sum. of 1 ■, within ■ days then next ensuing, in recompence and satisfaction for damages, and also the sum of lOs. to the treasurer of the said -~_ district, to be applied and accounted for as by law is directed : and whereas, it appears to tne that the said several sams have been duly demanded of him, the said A. O. and that he, the said A. O. hath refused and doth refuse to pay, and hath not yet paid the same, nor any part thereof; I do therefore hereby require of you, the said constable of .— — aforesaid, to convey the said A. O. to the said house of correction, at . i aforesaid, and to deliver him to the keeper thereof, together with this war- rant: and I do hereby command you, the said keeper, to receive him into your custody, in the said house of correction, and there to detain him for the space of ■■■ . days. Herein fail you not. Given under my hand and seal, at , in the said district, tha ■ day of , in the year . .,.:.■> i hi. 5, Order for the buyer of Stolen Wood to pay treble Damages— on tke 13 Cr. 2. c. 2. (Burn.) — — District, > Whereas it hath been duly proved before me, to wit. ) Esquire, one of his Majesty's justices of the peace for the said district, that A. O. of , yeoman, did, within the space of six weeks now last past, buy several burdens of wood of B. O. of — -— , yeoman, and that he, the said B. O. is justly suspected to have stolen the same from A. J. of , yeoman; and that the said wood, at the time when the said A. O. so bought the same, was of the value of lOi. ; I do therefore hereby order that the said A. O. do forthwith pay unto the said A. J. the sum of 30«. the same being treble vaUie of the said wood, so by hint bought as aforesaid. Given under my hand atid seal, at ■■,in the said district, the — — day of , in tlie year of the reign of——. r^. Warrant of Distress for non-payment of tke same. (Bcrn.) > — — District, > , ' To the constable of ——.>.. tw.v v .,, ., to wit. \ ( - here recite the order , then say,) And whereas the said A. O. hath not paid to the said A. J. the aforesaid sumof 30«. nor any part thereof; these are therefore to command you to make distress of the goods and chattels of him, the said A. O. \% ■, \; ' J n r-^-. \if*0*-^ „v J/ 488 WiwUmtn, and if, witliin the space of (five) days next after such distress by yon made, the said sum of ' ■ , together with reasonable charges of taking and keeping the said distress shall not be paid, that then you do sell the said goods ami chatteU so by you distrained; and out of the money arising by such sale, pay the said sum of 30s. unto him, the said A. J. returning the overplus, upon demand, unto him, the said A. O. the reasonable charges of taking, keeping and sell- ing the said distress, being thereout first deducted. Given, &£c. ''... .'■ \\;' • WORKMEN. :.^^: '^'V^'-. ,: By Stat. 2 & 3 Ed, 6. c. 15. ^ 1. If any artificers, workmen, or laborers, do conspire, covenant, or promise together, or make any oaths, that they shall not make or do their works but at a certain price, or rate; or shall not enterprise, or take upon them to finish that another hath begun ; or shall do but a certain work in a day ; or shall not work but at certain hours and times ; that, then every person so conspiring, covenanting, swearing, or offending, being lawfully convicted thereof, by witness, confession, or otherwise, shall forfeit, for the first ofTence, £lO to the King, if he have suf- ficient to pay the same, and do also pay the same within six days next after his conviction ; or else shall sufier for the same offence twenty days imprisonment, and shall have only bread and water for his sustenance : and for the second offence, shall forfeit £20 to the King, if he have sufficient to pay the same, and also do pay the same within six days next after his conviction ; or else shall suffer for the second offence, punishment of the pillory ; and for the third offence, shall forfeit £40 to the King, if he have sufficient to pay the sante, and also do pay the same within six days next after his conviction, or else shall sit on the pillory and lose one of his ears ; and also shall, at all times after that, be taken as a man infamous, and his sayings, depositions or oath, not to be credited at any time, in any matter of judgnent. Sec. 3. Justices of the assize, justices of the peace, &£c. at all and every their sessions and courts, shall have full power and authority to inquire, hear, and determine all and singular such offences committed against this sta- tute, and to punish, or cause to be punished, the offender, according to the statute. Any one workman may refuse to work, till he is paid the price he pleases to fix upon his otvn labor; but if two or more enter into an engagement of this kind, they arc guilty of a con- tjpiracy, and may be prosecuted by an indictment, or an informa- tion. Bl, Com. p. 160. Ed, 15. (note.) '<<(■ 'riYc ""i *.f i" .•» ■■,.i'\ SS,-fl'.,0 ,fM/l : FINIS. :;i: {•}'■ n its .4 i.iS 1 ■'■:#i:^mjiil?> APl^CBTDIlt:. *l »tjt ♦ iiT* 1 ».>< i-- 't^V'^J'^vi ):• (21 Geo. 3. c. 31.; .4 ,? t ilN Act to repeal certain parts of an -Ad passed in the fourtemik year of His Majesty^ s Ucign^ intituled^ " An Act for making mart effectual provision for the Government of the Province of Quebect in North America" and to make further provision for the Govern" ment of the said Province. Whereas, an act was passed in the fourteenth year of the reigii of his present Majesty, intituled, *' an act for making more effec- tual provision for the government of the province of Quebec, in North America ;" and whereas, the said act is in many respects inapplicable to the present condition and circumstances of the said province ; and whereas, it is expedient and necessary that further provision should now be made for the good government and prosperity thereof: may it therefore please your most excel- lent Majesty, that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and con* sent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that so much of the said act as in any manner relates to the ap- pointment of a council fur the affairs of the said province of Que- bec, or to the power given by the said act to the said council, or to the major part of them, to make ordinances for the peace, wel- fare, and good government of the said province, with the consent of his Majesty's governor, lieutenant governor, or commander in chief for the time being, shall be, and the same is hereby repealed* 2. And whereas, his Majesty has been pleased to signify, by his message to both houses of parliament, his royal intention to divide his province of Quebec into two separate provinces, to be called the province of Upper Canada, and the province of Lower Canada ; Be it enacted by the authority aforesaid^ That there shall be within each of the suid provinces respectively, a legisla* tive council, and an assembly, to be severally composed and con- stituted in the manner herein after described ; and that in each of the said provinces respectively, his Mfijesty, his heirs or success- sors, shall have power, during the continuance of this act, by and with the advice and consent uf the legislative council and assembly of such provinces respectively, to make laws for the peace, wel- fare, and good government thereof, such laws not being repug- nant to this act ; and that all such laws, being passed by the legislative council and assembly of either of the said proviucei ,.>" Mmttmn:. \\ m I I) respectively, and auented to by his Mi^esty, his heirs or lucces* iors, or asseoted to in his Majesty's name, by such person as liis M^esty, his heirs or successors, shall from time to time appoint to be the governor or lieutenant governor of such province, or by such person as his Majesty, his heirs or successors, shall, from time to time, appoint to administer the government within the same, shall be, and the same are hereby declared to be, by virtue 6f and under the authority of this act, valid and binding, to all intents and purposes whatever, within the province in which the same shall have been so passed. ;; ,n:y 3. And be it, Sfc. That for the purpose of constituting such , legislative council, as aforesaid, in each of the said provinces re- spectively, it shall and may be lawful for his Majesty, his heirs or -successors, by an instrument under his or their sign manual, to .authorise and direct the governor or lieutenant governor, or per- son administering the government, in each of the said provinces respectively, whithin the time herein after mentioned, in his Ma- jesty's name, and by an instrument under the great seal of such .province, to summon to the said legislative council, to be estab- lished in each of the said provinces respectively, a sufficient num- ber o( discreet and proper persons, being not fewer than seven to the legislative council, for the province of Upper Canada, arid not fewer than fifteen to the legislative council for the province of Lower Canada ; and that it shall also be lawful for his Majesty, his heirs or successors, from time to time, by an instrument under his or their sign manual, to authorise and direct the governor or lieutenant governor, or person administering the government in each of the said provinces respectively, to summon to the legisla- tive council of such province, in like manner, such other person ; or persons as his Majesty, his heirs or successors, shall think fit ; and that every person who shall be so summoned to the legislative council of either of the laid provinces respectively, shall thereby , become a member of such legislative council, to which he shall tiave been so summoned* 4. Provided always, and he it, Sfc. That no person shall be , summoned to the legislative council, in either of the said pro- , vinces, who shall not be of the full age of twenty-one years, and I ^ natural born subject of his Majesty, or a subject of his Majesty ^ naturalized by act of the British parliament, or a subject of bis Majesty, having become such by the conquest and cession of the ; province of Canada. , £. And be it, fyc* That every member of each of the said legis- lative councils, shall hold his seat therein for the term of his life, but subject nevertheless to to the provisions hereinafter contaiued for vacating the same, in the cases hereinafter specified. is 1 Si^tirnVOr. $ i heirs or iuccea« jch person as liis ; to time appoint :b province, or by >sors, sliall, from nment within the (i to be, by virtue id binding, to all fince in which the ' constituting such said provinces re- ajesty, bis heirs or ir sign manual, to t governor, or per- the said provinces itioned, in his Ma- great seal of such uncil, to be estab- y, a sufficient num- fewer than seven to Fpper Canada, and for the province of ful for his Majesty, in instrument under ect the governor or the government in nmon to the legisla- , such other person sors, shall think fit; aed to the legislative lively, shall thereby I, to which he shall ; no person shall be her of the said pro- enty-one years, and ubject of his Majesty ;, or a subject of his | ist and cession of the jachofthe saidlegis- r the term of his life. ^ hereinafter contained | ir specified. 6. And be tf, fyc. That whenever his Majesty, his heirs or suc- cessors, shall think proper to confer upon any subject of the crown of Great Britain, by letters patent under (he great seal of either of the said provinces, any hereditary title of honor, rank, or dignity of such province, descendible according to any course of descent limited in such letters patent, it »hall and may be law- ful for his Majesty, his heirs or successors, to annex thereto by the said letters patent, if his Majesty, his heirs or successor!!, shall so think fit, an hereditary right of being summoned to the legisla- tive council of such province, descendible according to the course uf descent so limited with respect to such title, rank, or dignity ; and that ever\ person on whom such right shall be so conferred, or to whom such right shall severally so descend, shall thereupon be entitled to demand from the governor, lieutenant governor, or person administering the government of such province, his writ of summons to such legislative council, at any time after he shall have attained the age of twenty-one years, subject nevertheless to the provisions hereinafter contained. 7. Provided ahvays, and be iff &fc. That when and so often as any person to whom siich hereditary right shall have descended, shall, without the permission of his ]Mnjesty, his heirs or succes- sors, signified to the legislative council of the province by the go- vernor, lieutenant governor, or person administering the govern- ment there, have been absent from tlic said province for the space of four years continually, at anytime between the date of his suc- ceeding to such right, and the time of his applying for such writ of summons, if he shall have been of the age of twenty-one years, or upwards at the time of his so succeeding, or at any time between the date of his attaining the said age and the time of his so ap- plying, if he shall not havo been of the said age at the time of his so succeeding ; and also, when and so often as any such person shall, at cny time before his applying for sucl) writ of summons, have taken any oath of allegiance or obedience to any foreign prince or power, in every such case such person shall not be en- titled to receive any writ of summons to the legislative council by virtue of such hereditary right, unless his Majesty, his heirs or successors, shall, at any time think fit, by instrument under his or their sign manual, to direct that such person shall be stimmoned to the said council ; and the governor, lieutenant governor, or person administering the government in the said provinces respec- tively, is hereby authorized and required, previous to granting such writ of summons to any person so applying for the same, to interrogate such person upon oath, touching the said several par- ticulars, before such executive council as shall have Leen appoint- ed by his Majesty, his heirs or successors, within such province, for the afiairs thereof. fr 1:1 i Hii I r ill m a ni,i 8. Provided aho, and be t^ ^. That if any member of the I«- gisUtive councils of either of the said provinces respectfully shall leave such province, and shall reside out of the same for the space «f fonr years continually, without the permission of his Majesty, h'n heirs or successors, signified to such legislative council by the' governor or lieutenant governor, or person administering his Ma- jesty's government there, or for the space of two years continually, without the like permission, or the permission of the governor, lieutenant governor, or person administering the government of inch province, signified to such legislative council in the manner aforesaid ; or if any such member shall take any oath of allegiance Or obedience to any foreign prince or power, his seat in such coun- cil shall thereby become vacant, u:* ' • . i. 9. Provided ahot and he it^ &;c. That in every case where a writ of snn?mons to such legislative council shall have been law- fillly withheld from any person to whom such hereditary right at aforesaid shall hove descended, by reason of such absence from the province as aforesaid, or of his having taken an oath of allegianco- or obedience to any foreign prince or power, and also in every case where the seat in such council of any member thereof, having such hereditary right as aforesaid, shall have been vacated by rea- son of any of the causes hereinbefore specified, such hereditary right shall remain suspended during the life of such person, unles» kis Majesty, his heirs or successors, shall afterwards think fit to direct that he be summoned to such council ; but that on the death of such person such right, subject to the provisions herein contain- ed, shall descend to the person who shall next be entitled thereto, according to the rourse of descent limited in the letters patent by which the same shall have been originally conferred.. 10. Provided also, and be it, Sfc. That if any member of either of the said legislative councils shall be attainted for treason in any court of law within any of his Majesty's dominions, his seat in such council shall thereby become vacant, and any such hereditary right as aforesaid then vested in such person, or to be derived to any other person through him, shall be utterly forfeited and extin- guished. ^=5-.:3 V) ^-.'r -f^-i'v-ri v->ijs \-.. 11. Provided aho, and be it, &fc. That whenever ai»y question shall arise respecting the right of any person to be summoned to cither of the said legislative councils respectively, or respecting tha vacancy of the seat in such legislative council of any person liav-^ »ng been summoned thereto, every suclf'questionshall, by the go- vernor or lieutenant governor of the provineeF, or by the person administering the government there, be referred to such legislative conncil, to be by the said council heard and determined ; and that it shall and may be lawful either for the pcrsBli desiring such writ MpptvCUHf. nember of ihe I«- respectfully shall tme for the space i of his Majesty^ re council by the nistering his Ma- rears conlinually, of the governor, le government ot ci! in the manner )ath of allegiance seat in such coun- rery case where a II have been law- ereditary right a» I absence from the oalh of allegianc* and also in every or thereof, having ?n vacated by rea- I, such hereditary uch person, un1es» wards think fit to : that on the death ns herein contain- le entitled thereto, e letters patent by ;rred» y member of either for treason in any ns, his seat in such :h hereditary right be derived to any irfeited and extin- never auy question o be summoned ta >r, or respecting ih» )f any person bav-' in shall, by the 50- OT by the person to such legislative ermihed ; and thai desiring such writ i if I t>r sutDmont, or respecting >ho8e seat luch question ihall hsre arisen, or for his Majesty's attorney general of such province, in tiis Majesiy^s name, to appeal from the determination of the said council in such case, to bis Majesty in his parliament of Great- Britain ; and that the judgment tlicreon of his Majesty |u his said parliament shall be final an^ conclusive iQ a^l.tnteuts and purpose! whatever. • ^ " -'' .••.:■«. ;f-,*/.-i ^'■u;*'*^_ 12. And be it^ fyc. That the governor, or lieutenant governow of the said provinces respectively, or the person adraiuistering his Majcsty^s government therein respectively, shall have ppwer and authority, from time to time, by an instrametit under the gi eat sea:! of such province, to constitute, appoint, and remove the speakers of the legislative councils of such provinces respectively. 13. And be «V, &;c. That for the purpose of constituting such assembly as aforesaid, in each of the said provinces respectfully, it shall and may be lawful for his Majesty, his heirs or successorsv by an instrnment under his or their $\gn manual, to authorise and direct the governor or lieutenant guvernur, or person adr ministering the government in each of the said provinces respec- tively, within the time hereinafter mentioned, and thereafter fromr titiie to time, as occasion shall require, in his Majesty's name, and by an instrument under the great seal of such province, to sunimoa mid call together an assembly in and for such province. 14. And be «V, fyc. That, for the purpose o^f electing the mem-, bers of such assemblies respectively, it shall and may be lawful for his Majesty, his heirs or successors, by an instrument under his or their sign manual, to authorise the governor or lieutenant gover- nor of each of the said provinces respectively, or the person ad^- ministering the government therein, within the lime heieinafter mentioned, to issue a proclamation dividing such province into districts, or counties, or circles, and towns or townships, and ap- pointing the limits thereof, and declaring and appr nting the num- ber of representatives to be chosen by each of such districts, or? counties, or circles, and towns or townships respectively ; and that it shall also be i«i«vful for his Majesiy, his heirs or successors, to^ authorise such governor or lieutenant governor, or person admin- isleriug the government, from time to time, to nominate and appoitit proper persons to execute the oiilcs of returning ufiicer in each of: the said districts, or counties, or circles, and towns or townships > respectively ; and that such division of ilie said provinces into d'w tricts, or counties, or circles, and towns or townships, and such declaration and appoiniraeni of the nuniber uf repiesentatives to be chosen by each of the said districts, ur counties, or circles, and towns or townships respectively, and also such nomination and > Jippointment of returning officers in the same, shall be valid Riidr 11 ■;;' 'I t! # fsippm}Hr* ,eflertual to all llie purposes of this act, unless it shall at any time be otherwise provided by any act of the legislative council and assembly of the province, assented to by his Majesty, his heirs or successors. 15. Provided nevertheless^ and be it, Sfc. That the provision Jiereinbefore contained, for empowering the governor, lieutenant governor, or person administering the government of (he said pro- vinces respectively, under such authority as aforesaid from his Ma- jesty, his heirs or successors, from time to time, to nominate anj appoint oroper persons to execute the office of returning officer, in the snid districts, counties, circles, and (owns or townships, shall remain and continue in force in each of the said provinces respec- tively, for the term of two years, from and after the commencement of this act, within such province, and no longer ; but subject, ne- vertheless, to be sooner repealed or va>*ied by any act of the legis- lative council and assembly of the province, assented to by his JVInjesty, his heirs or successors. IC. Provided always^ and be it, ^c. That no person shall be obliged to execute the snid office of returniug officer for any longer time than one year or oftener than once, unless it shall at any time be otherwise provided by any act of the legislative council and as- sembly of the province, assented to by his Alnjesty, his heirs or successor?. 17. Provided also, and be it, &.c. That the whole number of members to be chosen in the province of Upper Canada shall not be less than sixteen, and the whole number of members to be chosen iu the province of Lower Canada shall not be less than fifty. 18. And be it, he. That writs for the election of members to £erve in the said assemblies respectively, shall be issued by the go- vernor, lieutenant governor, or person administering his Majesty's government within the said provinces respectively, within fourteen days after the sealing of such instrument as aforesaid, for summon- ing and calling together such assembly, and that such writs shall be directed to the respective returning officers of the said districts, or counties, or circles, and towns or townships, and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be other- wise provided by any act of the lep-isla;ive council and assembly of the province, assented to by his Majesty, his heirs or successors; and that writs shall in like manner and form be issued for the elec- tion of members in the case of any vacancy which shall happen by the death of the person chosen, or by his being summoned to the legislative council of either province, and that such writs shall be made returnable within fifty days at farthest from the day en which they §hall bear date, unless it shall at anytime be otherwise , !l ^wctiMr* L sball at any time ative council and [ijesty, his heirs or 'hat the provision vernor, lieutenant itii of (he said pro- esaid from his Ma- , to nominate and returning officer, or townships, shall I provinces respec- ihe commencement r ; but subject, ne- ny act of the legis- assented to by his lo person shall be ficer for any longer it shall at any time live council and as- iijesty, his heirs or } whole number of r Canada shall not >mbers to be chosen less than fifty, ion of members to )e issued by the go- leriiig his Majesty's ely, within fourteen •esaid, for summon- hat such writs shall of the said districU, and that such writs irthest from the day t any time be other- icil and assembly of heirs or successors; ; issued for the elec- ivhich shall happen being summoned to that such writs shall est from the day en ly lime be otherwise I ■i ■• :% provided by any act of the legislative council and assembly Of the province, assented to by his Majesty, his heirs or successors ; and that in the case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so summon-^ ed as aforesaid, the writ for the election of a new member shall be issued within six days after the same shall be made known to the proper officer for issuing such writs of election. 19. And be >7, ^fc. That all and every the returning odicers so appointed as aforesaid, to whom any such writs as aforesaid shall be directed, shall and they are hereby authorised and required duly to execute isuch writs. 20. And be iti fyc. That the members for the several districts^ or counties, or circles, of the said provinces respectively, shall be ' chosen by the majority of votes of such persons as shall severally be possessed, for their own use and benefit, of lands or tenements within such district, or county, or circle, as the case shall be, such lands being by them held in freehold, or in fief, or in roture, or by certificate derived under the authority of the governor and council of the province of Quebec, and being of the yearly value of forty shillings sterling, or upwards, over and above all rents and charges payable out of or in respect of the same ; and that the members for the several towns or townships within the said pro« vinces respectively, shall be chosen by the majority of votes of such persons as either shall be severally possessed, for their own use and benefit, of a dwelling-house and lot of ground in such town or township, such dwelling-house and lot of ground being by them held in like manner as aforesaid, and being of the yearly value of five pounds sterling, or upwards:, or, as having been re- sident within the said town or township for the space of twelve calendar months next before the dale of the writ of summons for the election, shall bona fide have paid one year*s rent for the dwelling'house in which they shall have so resided, at the rate of ten pounds sterling per annum, or upwards. 21. Provided always j and be ity ifc. That no person shall be capable of being elected a member to serve in either of the said assemblies, or sitting or voting therein, who shall be a member of either of the said legislative councils, to be established as afore- said in the said two provinces, or who shall be a minister of the church of England, or a minister, priest, ecclesiastic, or teacher, either according to the rites of the church of Rome, or under any other form or profession of religious faith or worship. 22. Provided alsOf and be it^ ^c. That no person shall b* capable of voting at any election of a member to serve in such assembly, in either of the said provinces, or of being elected at any such election, who shall not be of the full age of twenty-pno m mm' Ifaii B cmiittitifr^ yean, ud.a natural born •ubject of his Mi^esty^ or a subject of his Majesty naturalised by act of the British Parliament, or a subject of his Majesty, having become such by the conquest and cession of the province of Canada* • 23. And be t^ fyc. That no person shall be capable of voting at any election of a member to serve in such assembly, in either of the said provinces, or of being elected at any such election, who ihali have been attainted for treason or felony, in any court of law within any of his Majesty's dommions, or who shall be within foy description, of persons disqualit^ed by any act of the legisla- tive council and assembly of the province, assented to by his Ma- j#sty, his heirs or successors, 24> Provided altOt and be it^ &c. That every voter, before he is admitted to give his vote at any such election, shall, if required by any of the candidates, or by the returning officer, take the fo|. )owing4)ath, which shall bejidministered xu the English oi; Frencli language, as the case may require : - I, A. B. do declare and testify, in the presence of Almigliiy God, that I am^ to the best of my knowledge and belief, of the full age of twenty-one years, and that I have not vot«u before at this tlection. .- And that every such person shall also, ifsu required ns tifuref •aid, make oath, previous to his being admitted to vote, that he >!■, to the best of his knowledge and belief, duly possessed of such lands and tenements, or of such a dwelling-house and lot of ground, .pr that he has bona Hde been so resident and paid such rent for his dwelling-house, as entitles him, according to the provisions of tliU act, to give his vote at suci; election, for the county, or district, or Circle, or for the to^n or township 'C<* which he shall otfer the •ame. 25. And he it^ &£c. That it shall and may be lawful fur his Ma- jesty, his heirs or successors, to authorize the governor, or lieuien- ftnt governor, or person administering the government, within each of the said provinces respectively, to Hx the time and phice of holding such elections, giving not less than eight days notice of such time^ subject nevertheless to such provisions as mny here- after be made in these respects, by any uct of the leo^islativc souncil.and assembly of the province, assented to by his Majesty, his heirs or successors. ^i And he k^ ^c. That it shall and may be ]a>vful for hi$ I\Ia- jesty, his heirs, or successors, to autliorize the governor, or lieuten- ant governor of each of the said provinces respectively, or \\\c. person administering the government therein, to fix the places and times of holding the first and every other session nC die icgislaiive (tonnct^ m^d assembly of inch province, giving due and sufticient aiipfnuir. ijf^ or a subject of Parliamenit or a the conqoeit and I capable of voting entbly, in either of luch election, who y, in any court of ho shall be within act ol' the legisla< itcd to by his Ma- y voter, before he I, shall, if required Qdcer, take the fol- English or French lence of Almighty d belief, oftherulj 3tifu before at this required ns afuret to vote, that he >!■, possessed of such and lot of ground, id such rent lor his i provisions of this nty, or district, or he shall offer the lawful fur his Ma- vernor, or lieuien- overnment, within he time and phice eight days notice ions as nn»y here- of the let^islativc to by his MajeMy, la>vfol for his I\Ia- veruor, or lifiiten- speclively, or llin fix the places and 1 of (he iogisimive due and suAicieiU het erer ♦» - ■! ■) rl 1 notice thereof, uiid to prorogue the suioc fioiii tisnt to dissolve the same, by proclamation or otherwiir. ^all judge it necessary or expedient. 27. Provided always^ and be. U^ &tc. That the sa, i h'gislat e council and assembly, in each of the said provinces, shall be raft- ed together once at the least in every twelve calendar months, and that every assembly shall continue for four years from the iday of the return of the writs for chnsing the same, and no longer, iiibject nevertheless to be sooner prorogued «:. dissolved by the governor or lieutenant governor of tha province, or person ad- ministering his Majesty's government therein. »^»' 29. And be ity &ic. That all questions which shall arise iu thb laid legislative councils or assemblies respectively, shall be decid- ed by the majority of voices of such members as shall be present ; and that in all cases where the voices shall be equal, the speaker of such council or assembly, as the case shall be, shall have a cast- ing voice. 29. Provided always^ and be it, Stc. That no member, either of the legislative council or assembly, in either of the said pro- vinc«8> shall be permitteu to sit nr vole therein, until he shull have taken and subscribed the following oath, cither before the govern- or or lieutenant governor of such province, or person administer- ing the government therein, or before some person or persons authorized by the said governor or lieutenant governor, or other person as aforesaid, to administer such oath, and that the same shall be administered in the English or French language as the cas allowance, together with a certificate, under the hand and seal of such secretary of state, testifying the day on which such bill was received as aforesaid, being "iignified by such governor, lieutenant governor, or person rdministering the government, to the legisla- tive council and assembly of such province, or by proclamation, shall make void and annul the same, from and after the date of such signification. 32. And be it, ^r. That no such bill, which shall be so reserved for the signification of his Majesty's pleasure thereon, shall have any force or authority within either of the said provinces respec- tively, until the governor, lieutenant governor, or person adminis- tering the government, shall signify, either by speech or message, to the legislative council and assembly of such province, or by proclamation, that such bill has been laid before his Majesty iu <;ouncil, and that his Majesty has been pleased to assent to the same; and that an entry shall be made in the journals of the said legislative council, of every such speech, message or proclamation, qnd a duplicate thereof, duly attested, chall be delivered to the proper officer, to be kept amongst the pubii<*. records of the pro- vince ; and t!iat no such bill, which shall be so reserved as afore- said, shall have any force or authority within either of the said provinces respectively, unless his Majesty's ass(>nt thereto shall have been so signified as aforesaid, within the spice of two years itHnwitHi);. II nor, 6r perion eby aulhoriied Dill but subject t, and to such i that behalf by to such bill in y's assent from lification of his inever any bill, ity's assent, to ninistering the ivernor, or per- sented to in his >r, or person as first convenient :ipal secretaries iO; and that it ^ears after such [>f state, for his der in council, d that such dis- and and seal of h such bill was rnor, lieutenant , to the legisla- f proclamation, ifter the date of I be so reserved eon, shall have ovinces respec- person adminis- ech or message, irovince, or by i his Majesty in assent to the nals of the said ir proclamation, elivered to the ords of the pro- served as afore- her of the said at thereto shall Lco of two years day on which :h bill shall have been presented for his Majesty's assent to the governor, lieutenant governor, or person ttdministering the government of such province. 33. And he it, ifc. That all laws, statutes, and ordinances, which shall be in force on the day to be fixed in the manner herein- after directed for the commencement of this act, within the said provinces, or either of them, or in any part thereof respectively, 6hall remain and continue to be of the same force, authority and effect, in each of the said provinces respectively, us if this act had not been made, and as if the snid province of Quebec had not been divided; except in so far as the same are expressly repealed or varied by this act, or in so far as the same shall or may hereafter, by virtue of and under the authority of this act, be repealed or varied by his Majesty, his heirs or successors, by and with the advice and consent of the legislative councils and assemblies of the said provinces respectively, or in so far as the same may be re- pealed or varied by such temporary laws or ordinances as may be made in the manner hereinafter specified. 34. Ami whereas by an ordinance passed in the province of Quebec, the governor and council of the said province were con- stituted a court of civil jiirisdiciion, for hearing and determining appeals in cartain cases therein specified, be it further enacted by the authority aforesaid. That the governor or lieutenant governor, or person administering the government of each of the said pro- vinces respectiveh , tngetlier with such executive council as shall be appointed by Ins Majesty for the affairs of such province, shall be a court of civil jurisdiction within each of the said provinces respectively, for hearing and determining appeals within the same, in the like cases, and in the like manner and form, and subject to such appeal therefrom, as such appeals might before the passing of this act have been heard and determined by the governor and council of the \ >vinc3 of Quebec ; but subject nevertheless to such further or other provisions as may be made in this behalf, by any act of the legislative council and assembly of either of the said provinces respectively, assented to by his Majesty, his heirs or successors. 35. And whereas by iho above mentioned Act, pnssed in the four- teenth year of the reign of his present Majesty, it was declared, That the Clergy of the Church of Rome, in tho Province of Quebec, might hold, receive, and enjoy, their accustomed dues and rights, with respect to such persons only as should profess the said religion : Pro- vided nevertheless, that it should be lawful for his Majesty, his heirs or successors, to mako such provision out of the rest of the said ac- customed dues and rights, for tho encouragement of tho Protestant religion, and for the maintenance and support of a Protestant Clergy wiiiitn the said Province, as he or they should from time to time t ^ i-i. H 13 fHfimnm*. ;:.:' -.1 ■,«! fliink necessary and expedient ; And whereat by hla Majesty^! royal in^ atructions, ^ivdli iiBder his Ma|esty*s royal 9ign manual on the third day of January, in the year of our Lord one thousand seven hundred and seve ity-five, to Guy Carleton, Esquire, no^ Lord Dorchester, at that time his Majesty's Captain- General and Governor-i(;i-Chicf In and over his Majesty's Province of Quebec, his Majesty was pleased, amongst other things, to direct, " That no incumbent profes- ling the religion of the Church of Rome, appointed to any parish in the said province, should be entitled to receive any tythcs for lands or possessions occupied by a Protestant, but that such tythes should bo received by such persons as the said Guy Carleton, Esquire, his Ma- Jesty's Captain- General and Governor-in-Chief in and over his Majes- ty's said Province of Quebec, should appoint, and should be reserved in the hands of his Majesty's Receiver General of the said Province, for the support of a Protestant Clergy in his Majesty's said Province, to be actually resident within the same, and not otherwise, according to such directions as the said Guy Carleton, Esquire, his Majesty's Captain-General and Governor-iu-Chief in and over his Majesty's ■aid Province, should receive from his Majesty in that behalf; aiid that in like manner all growing rents and profits of a vacant benefice should, during such vacancy, be reserved for and applied to the like uses"; And whereas his Blajesty's pleasure has lilcewise been signified to the same effect in his Majesty's royal instructions, given in like manner to Sir Frederick Haldimand, Knight of the most Honorable order of the Bath, late his Majesty's Captain-General and Governor- in-Chief in and over his Majesty's said Province of Quebec ; and also in his Majesty's royal instructions, given in like manner to the said right honorable Guy, Lord Dorchester, now his Majesty's Captain- General and Governor-in-Chief in and over his Majesty's said Pro- vince of Quebec— £c it ejiacted by the authority aforesaid^ that the said declaration and provision contained in the said above mentioned net, and also the said provision so made by his Majesty in consequence thereof, by his instructions before recited, shall remain and continue to be of full force and effect in each of the said two Provinces of Upper Canada and Lower Canada respectively, except in so far as the said declaration or provisions respectively, or any part thereof, shall be expressly varied or repealed by any act or acts which may be passed by the legislative council and assembly of the said Provinces re- spectively, and assented toby his Majesty, hisheirs or successors, under the restriction hereinafter provided. 36. And whereas his Majesty has been graciously pleased, by mes- sage to both Houses of Parliament, to express his royal desire to be enabled to make a permanent appropriation of lands in the said Pro- vinces, for the support and maintenance of a Protestant Clergy witbia the same, in proportion to such lands as have been already granted within the same by his Majesty : And whereas his Majesty has been graciously pleased, by his said message, further to signify his royal desire that such provision nmy be made, with respect to all future {[N'uts of land withia the said Provinces respectively, as may best con- duce to thedaoand sufficient support and maintenance of a Protestaiii r>iti anvrtRrOr. H Majesty^! royal io-^ inual on the third nd seven hundred Lord Dorchester, >overnor-ip-Chief his Majesty was incumbent profes- I to any parish in tythcs for lasids or I tythes should bo Esquire, his Ma< nd over his Majes- ihould be reserved the said Province, y*s said Province, lerwise, according lire, his Majesty's ver his Majesty's ) that behalf; and a vacant benefice applied to the like vise been signified ons, given in like le most Honorable ral and Governor- Quebec ; and also iianner to the said rlajcsty's Captaiu- lajesty's said Pro- iforesaidt that the above mentioned sty in consequence main and continue two Provinces of xcept in so fur as any part thereof, atcts which may be said Provinces rc- successors, under pleased, by rocs- royal desire to be s in the said Pio- ant Clergy within 11 already granted Majesty has been signify his royal pect to all future M may best con- ce of a Protestant I Clergy trfthln the said Provinces, io proportion to toeh Inereaae m may happen in the population and cultivation thereof : therefore, for the purpose of more effectually fulfilling his Majesty's gracious intea* tions, as aforesaid, and of providing for tho due execution of the same^ in all time to come— -Be it enacted by the authority aforesaid^ That it shall and may be lawful for his Majesty, his heirs or successors, to ■ authorise the Governor or Lieutenant Governor of each of tho said Provinces respectively, or the person administering the Government therein, to make, from and out of the lands of the Crown within sucb Provinces, such allotment and appropriation of lands, for the support and maintenance of a Protestant Clergy within the same, as may bear a due proportion to the amount of such lands within the same as have at any time been granted by or under the authority of his Majesty ( and that whenever any grant of lands within either of the said Pro* vinces shall hereafter be made, by or under the authority of his Majes- ty, his heirs or successors, there shall at the same time be made, in respect of the same, a proportionable allotment and appropriation of > lands for the above mentioned purpose, within the township or parish to which such lands so to be granted shall appertain or be annexed, or as nearly adjacent thereto as circumstan/ces will admit ; and that no such grant shall be valid or effectual unless the same shall contain a specification of the lands so allotted and appropriated, in respect of the lands to be thereby granted ; and that such lands, so allotted and appropriated, shall be, as nearly as the circumstances and nature of the case will admit, of the like quality as the lands in respect of which the same are so allotted and appropriated, and shall be, as nearly as tha game can be estimated at the time of making such grant, equal in valua to the seventh part of the lands so granted. 37. And be it 4*c. That all and every the rents, profits or emolu- ments, which may at any time arise from such lands, so allotted and appropriated as aforesaid, shall be applicable solely to the maintenance and support of a Protestant Clergy, within the Province in which the same shall be situated, and to no other use or purpose whatover. ' 38. And be it ^c. That it shall and may be lawful for his Majest}', Wis Heirs or Successors, to authorize the Governor or Lieutenant Go- vernor of each of the said Provinces respectively, or the person admi- nistering the Government therein t>om time to ti:ne, with the advice of such Executive Council as shall have been appoinied by his Majesty, his Heirs or Successors, within such Province, for the affairs thereof, to constitute and erect, within every township or parish which now i«' or hereafter may be formed, constituted or erected, within such Pro- ' vince, one or more parsonage or rectory, or parsonages or rectories, according to the* establishment of tho Church of England ; and from time to time, b}' an instrument under the great seal of such Province^ to endow every such parsonage or rectory with so much or Vuch a part of the lands so allotted and appropriated us aforesaid, in respect of any lands within such township or parish, which shall have been granted subsequent to the commencement of this Act, or of such lands as may have been allotted ond appropriated fur the same pur^ds^, by or in s 4 f^i. Ill I ill l!!:iif '^^ 14 ^vmntfir* virtue of any instruction which may be given by his Majesty, in respect of any lands granted by liis Majesty before the commencement of this Act, as such Governor, Lieutenant Governor, or person administering tiie Government, shall, with tlie advice of th< said Executive Council, juc'je to be expedient under the then existing circumstances of such township or parish. 39. And be it Sfc. That it shall and may bo lawful for his Majesty, his Heirs or Successors, to authorise the Governor, Lieutenant Go- vernor, or perspn administering the government of each of the said provinces respectively, to present to every such parsonage or rectory, an Jncumbent or Minister of the Church of England, who shall have been duly ordained according to the rites of the said Church, and to supply from time to time such vacancies as may happen therein ; and that every person so presented to any such parsonage or rectory, shall hold and enjoy the same, and all rights, profits and emoluments, thcrc< unto belonging or granted, as fully and amply, and in the same manner, And on the same terms and conditions, and liable to the performance oftho same duties, as the Incumbent of a parsonage or rectory in England. 40. Provided always^ and he it ^c. That every such presentation of an Incumbent or Minister to any such parsonage or rectory, und also the enjoyment of any such parsonage or rectory, and of the riglits, ))rofits and emoluments thereof, by any such Incumbent or Ministor, shall be subject and liable to all rights of institution, and all other spiritual and ecclesiasiical jurisdiction and authority, which have been lawfully granted by his M.ijesty's royal letters patent to the Bishop (if Nova Scotia, or which may hereafter, by his Majesty's royal authn- rity, be lawfully granted or appointed to be administered and executed within the said Provinces, or either of them respectively, by the said Bishop of Nova Scotia, or by any other person or persons, according to the laws and canons of the Church of England, which are lawfully made and received in England. 41. Provided always ^ and he it^ ^"c. That the several provisions hereinbefore contained, respecting the allotment and appropriation of lands for the support of a Protestant Clergy within the said Provinces, and aliO respecting the constituting, erecting, and endowing parsonages or rectories within the said provinces; and also respecting the presen- tation of incumbents or ministers to the same ; and also respecting the manner in which such incumbents or ministers shall hold and enjoy the same, shall be subject to bo varied or repealed by any express pro- visions for that purpose, contained in any act or acts which may be passed by the legislative council and assembly of the said Provinces respectively, and assented to by Iiis Majesty, his heirs or successors, under the restriction hereinafter provided. 42. Provided nevertheless^ and he it^ S^c, That whenever any act or acts shall be passed by the legislative council and assembly of either of the said provinces, containing any provisions to vary or repeal the above recited declaration and provisions contained in the said act passed in the fourteenth year of the reign of his preient Majesty; or ^tNoennfr. 15 Majesty, in respect imencement of this erson administering Executive Council, :umstances of such ?ful for his Majesty, »r, Lieutenant Go- of each of the s.iid irsonago or rectory, and, who shall have said Church, and to lappen therein ; and age or rectory, shall 1 emoluments, there- in the same manner, 3 to the perf«)rmance jonage or rectory in !rv such presentation nago or rectory, and •ry, and of the rights, cumbent or Mlnistor, tution, and all other •ity, which have been Itcnt to the Bishop t.f [ajesty's royal authn- listered and executed jectively, by the said or persons, according , which are lawfully e several provisions and appropriation of n the said Provinces, endowing parsonages respecting the presen- nd also respecting the all hold and enjoy the by any express pro- or acts which may be of the said Provinces Is heirs or successors, hat whenever any act and assembly of either to vary or repeal the lined in the said act s preient Majesty; or to vary or repeal the above recited provision contained in his Majesty's royal instructions, given on the third day of January, in the year of our Lord one thousand seven hundred and seventy-five, to the said Guy Carleton, Esquire, now Lord Dorchester; or to vary or repeal the provisions hereinbefore contained for continuing the force and eifucl of the said declaration and provisions ; or to vary or repeal any of the several provisions hereinbofore contained respecting the allotment and appropriation of lands for the support of a protestant clergy within the said Provinces; or respecting the constituting, erecting, or eudowing parsonages or rectories within the said provinces; or respecting the presentation of Incumbents or Ministers to the same ; or respecting the manner in which such incumbents or Ministers shall hold and en- joy the same : and also that whenever any act or acts shall be so passed, containing any provisions which shall in any manner relate to or aftect the enjoyment or exercise of any religious form or mode of worship ; or shall impose or create any penalties, burthens, disabilities, or (lis« qualifications, in respect of the same ; or shall in any manner relate to or afiect the payment, recovery or enjoyment, of any of the accustomed (lues or rights hereinbefore mentioned ; or shall in any manner relate to the granting, imposing, or recovering any other dues or stipends, or emoluments whatever, to be paid to or for the use of any minister, priest, ecclesiastic or teacher, according to any religious form or mode of worship, in respect of his said office or function ; or shall in any manner relate to or afiect the establishment or discipline of the church of England, amongst the Ministers and members thereof within the said Provinces ; or shall in any manner relate to or aflect the King's prerogative touching the granting of waste lands of the Crown within the said provinces, every such act or acts shall, previous to any decla- ration or significatirn of the King's assent thereto, be laid before both Houses of Parliament in Great Britain ; and that it shall not be lawful for his Majesty, his heirs or successors, to signify his or their assent to any such act or acts, until thirty days after the same shall have been laid before the said houses, or to assent to any such act or acts, in case either house of parliament shall, within the said thirty days, address his Majesty, his heirs or successors, to withhold his or their assent from such Act or Acts, and that no such Act shall be valid or efiectual to any of the said purposes, within either of the said Provinces, unless the Legislative Council and Assembly of such Province shall, in the session in which the same shall have been passed by them, have pre- served to the governor, lieutenant governor, or person administering the government of such Province, an address or addresses, specifying that such Act contains provisions for some of the said purposes herein before specially described, and desiring that, in order to give effect to thp same, such Act should be transmitted to Englr.nd without delay, for the purpose of being laid before Parliament previous to the significa- tion of his Majesty's assent thereto. 43. And be it^ Sfc. That all lands which shall be hereafter granted within the said province of Upper Canada, shall be granted in free and coD\mon soccage, io like maoQer as lands are now holdeu in free and 10 ^9^tmi%\ i till coinnioii soGcag»» in that part of Great Britniii culled EngUod ; and ihat in every case where lands tliull bo iioreHllui^ grunted within thn «uid prnyioco of Lower Cunadii, nnd where ihfs grantee thereof shall desire the samu to be granted in free and cumnion soccago, the saino »hall bo so granted ; but stibjoct nevertheless to such alterations, with respect to the nature and consHqnorices of such tenure of freurud com- mon soccage, ns may be established by any law or laws which may bu made by his Majest}', his heirs or successors, by and with the udvicu and consent of the legislative council and assembly of the province. 44. And be it^ S^'c. That if :iMy person or persons holding any lauds in the said province of Upper Ciiuada, by virtue of any certiilcale of occupation derived under the authority of the governor and council of the province of Quebec, ond having power and authority to alioiiuto the same, shall, at any time, from and after the commencement of thij act, surrender the same into the hands of his Majesty, his heirs or suc- cessors, by petition to the governor or lienteunnt governor, or person administering the government o the siid province, setting forth that he, she, or thcj', is or are desirous of holding the same in free and common soccage, such governor, lieutenant governor, or person ad- ministering the government, shall thereupon cause a fresh grant to bo made to such person or persons of such lands, to bo hulden in free and common soccage. 45. Provided nevertheless, and be it, ^'c. That such surrender and grant shidl not avoid or bar any right or title to any such lands so suf rendered, or any interest in the same, to which any person or persons, other than the person or persons surrendering tho same, shall have been entitled, either in possession, remainder, or reversion, or other- wise, at the time of such surrender ; but that every such surrender nnd grant shall be made subject to every such right, title, and interest, iind that every such right, tiiic, or interest, shall be as valid and eflec- v.uai as if such surrender and grant had never been made. h6. And whereas, by an act passed in the eighteenth year of the reign of his present Majesty, entitled, "an act for removing all doubts and apprehensions concerning taxation by the parliament of Great Britain in any of the colonies, provinces, and plantations in Nurih America, and the Wt^st Indies ; and for repealing so much of an act, made in the seventh year of the reign of his present Majesty, as im- poses a duty on tea imported from Great '^^ritain into any colony or plantation in America, or relates tlicroto," it has been declared, '* that the king and parliament of Great Britain will not impose any duly, tax, or assessment whatever, payable in any of his Majesty's colonie.o, pro- vines, and plantations, in North America, or the West Indies, except only such duties as it may be expedient to impose for the regulatioa of commerce, the nett produce of such duties to be always paid and ap- plied to and for the use of the colony, province, or plantation, in which th« fame shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts or general assemblies of such colonies, proviiiccs, or plantations, are ordinarily paid end »ppU«d ;*' And whereat it is uecessaiy, for the general beneiii iSnvtntrf^* 17 led EngUad ; tuA granted within ihn iiutee thereof shall soccago, the sam« :h Qherntioiis, with re of freu Pud com- luws which may b« and with the udvico of the province. IS lioldingany hiiidi )f any certificate of ;rnor and council of luihorify to aliunaio mtnencement of thii sty, his lieirs or siic- governor, or person c, setting forth tliui le saiue in free and srnor, or person ad- B a fresh grant to bo )0 holden in free and It such surrender and [jy such lands so sur- ny person or persons, ho same, shall have reversion, or other- svery such surrender ht, title, and interest, )e as valid and effec- mudo. [hteenlh year of the r removing all duubw parliament of Great plantations in North g so much of an act, "tent Majesty, as im- n into any colony oi- been declared, "that impose any duty, lax, ■ijesty's colonic?, pro- 5 West Indies, except e for the regulation of i always paid and ap- jf plantation, in which )anner as other dutiej eral courts or general ations, aro ordinarily for the general benelit of the British empire, that such power of regulation of commerce should eontioue to be exercised by his Majesty, his heirs or successors, and the parliament cf Great Britain, subject nevertheless to the conditions hereinbefore recited, with respect to the application of any duties which may be imposed for that purpose ; be it therefore enacted by the au- thority aforesaid, the^t nothing in this act contained shall extend, or be constructed to extend, to prevent or affect the execution of any law which hath been or shall at any time be made by his Majesty, his heirs or successors, and the parliament of Great Britain, fur establishing re- gulations or prohibitions, or for imposing, levying, or collecting duties for the regulation of navigation, or for the regulation of the commerce to be carried on between the said two provinces, or between either of the said provinces and any other part of his Miijesty's dominions, or between either of the said provinces and any foreign country or state, or for appointing and directing the payment of drawbacks of such du- ties so imposed, or to give to his Majesty, his heirs or successors, any power or authority, by and with the advice and consent of such legis- lative councils and assemblies respectively} to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or ob- struct the execution thereof. i!im:u-'.' - . 48. And whereas, by reason of the distance of the said provinces from this country, and of the change to be made by this act in the go- vernment thereof, it may be necessary that there should be some in- terval of time between the notification of this act to the said provinces respectively, and the day of its commencement within tli° saWi pro- vinces respectively ; Be it, Sfc. That it shall and may be lawful for his Majesty, with the advice of the privy council, to fix and declare, or to authorize the governor or lieutenant governor of the province of Quebec, or the person administering the government there, to fix and declare the day of tiie commencement of this act within the said pro- vinces, respectively, provided that such day shall not be later than the thirty-first day of December, in the year of our Lord one thousand seven hundred and ninety-one. 49. And he it, Sfc, That the time to be fixed by his Majesty, his heirs or successors, or under his or their authority by the governor, lieutenant governor, or person administering the government in each of the said provinces respectively, for issuing the writs of summons and election, and calling together the legislative councils and assemblies of each of the said provinces respectively, shall not be later than .he thirty-first day of December, in the year of our Lord one thousand ■even hundred and ninety-two. 'i m B 'X irf*^* ^»" 18 ^9»tmiv* M 50. Provided dltoayt^ he it^ S^e. That during such interval as may happen between the commeocement of this act, within th& said pro- vinces respectively, and the first meeting of the legislative council and assembly of each of the Raid provinces respectively, it shall and may be lawful for the governor or lieutenant governor of such province, er for the perivon administering the government therein, with the consent of the mnjor part of such executive council as shall be appointed by his Miijesty for the affairs of such province, to make temporary laws and ordinances for the good government, peace, and welfare of such province, in the. same manner, and under the same restrictions, nsr Buch laws or ordinances might have hern made by the council for tho affairs of the province of Quebec, constituted by virtue of the abuvo mentioned act of the fourteenth year of tha reign of his present Ma- jesty ; and that such temporary laws or ordinances shall be valid and binding within such Province, until the expiration of six months after the legislative council and assembly of such province shall have been first assembled by virtue of and under the authority of this act ; sub- ject nevertheless to be sooner repealed or varied by any law or laws which may be made by his Majesty, his heirs or successors, by and with the advice and consent of the said legislative council and as- •embly. ^ , COURT OF REQUESTS. f3 fV, 4. c. 1.) Aft Act to repeal part of^ amend and reduce to one Act of Parliament the several Laws now in force in this Province^ for the recovery of Small Debts ; and to extend the Jurisdiction of the Court of He- quests within the same. Whereas, it is found necessary to repeal part of, and amend and reduce to one act of parliament, the several laws now in force in this province for the recovery of small debts ; and alsu *o extend the jurisdiction of the court of requests within the same. — Be it therefore enacted by the King's most excellent Majesty, by and with the advice and con>ient of the legislative council and assern- biy of the province of Upper Canada, constituted and assembled by virtue of and under the authority of an act passed in the par- liament of Great Brita n, entitled, "an act to repeal certain parts of an act passed in the fourteenth year of his Majesty's reign, en- titled, * an act for maklnp: more effiictual provision for the govern- ment of the province of Quebec, in North America, and to make further provision for the government of the said province," and by the authority of the same, that from and after the first day of Sep- tember next, a certain act passed in the thirty-second year of the reigQ of his late Majesty King George the third, entitled, " an act ^pptmiv^ 19 :h Interval as may thin thb said pro- ilative council and , it shall and may such province, er , with the consent 1 be appointed by ke temporary laws id welfare of such lie restrictions, a* the council for tlia irtue of the abovo )f bis present Ma- shall be valid and if six months after :e shall have been y of this act ; sub- )y any law or laws successors, by and ve council and as« s. Act of Parliament for the recovery of ■ the Court of lie- of, and amend and n now iu force in and alsu 'o extend the same. — Be it Majesty, by and oiincil and asspm- ted and assembled lassed in the par- epeal certain pans ajesty*s reign, en- ion for the govern- rica, and to make province," and by le first day of Sep- second year of the , entitled, " an act for the more easy and speedy recovery of small debts ;*' a certain other act passed in the fifty-sixth year of his said Majesty's reign, entitled, "an act to extend thejurisdiction of the court of requests," and also so much of the sixth clause of a certain other act passed in the thirty-seventh year of his said ^ate Majesty's reign, entitled, •* an act to t^xtend thejurisdiction and regulate the proceedings of the district court and court of requests," as applies to the said court of requests, be, and the same are hereby repealed. 2t And be it, ^c. That from and after the first day of Septem- ber next, it shall and may be lawful for any two or more commis- sioners, acting under and by virtue of a commission from the governor, lieutenant governor, or person administering the gov- ernment of this province, who is hereby duly authorised and empowered to grant the same, under his hand and seal of ofiice, to assemble, sit and hold a court of justice, to be called a court of requests, on the first and third Saturday of each month, at some place within their respective divisions, which divisions shall be ascertained and declared by the justices in quarter sessions assem- bled, or the greater part of them, at the general quarter sessions, which shall be holdcn first after the first day of April next ; and the said commissioners for the time being, or any two or more of ihein, shall have power and authority, and are hereby authorised, empowered ami required, to hear and determine all matters of debt or contract, when the demand doth not exceed the sum of ten. pounds, and to give and pronounce such judgmer: and decree therein respectively, and to award execution thereupon, with such costs as are hereinafter specified, against the goods and chatties of all and every the person and persons against whom they shall give or pronounce any judgment or decree, as to them shall seem just in law or equity; and that the nets, orders, judgments and decrees ofthe said commissioners shall be final, between ths parties thereto; provided always^ that th.' commissioners hereinbefore mentioned, shall be appointed and hold their ofiice during plea- sure only. 3. And be it, &fc. That so soon as the said divisions, shall have been declared in each district as aforesaid, the same shall be num- bered by the said justices in general quarter sessions assembled, beginning at number one, and continuing to the highest number of such divisions in each district, and shall be particularly described in a *jOok to be kept for that purpose, and deposited in the office of llie clerk of the peace. 4. And be it, Uc. That the clerk ofthe peace in and for each district, shall transmit to the ofiice of the governor, lieutenant governor, or person administering the government of this province, a copy ofthe book or list of divisions, from time to time declared .i!c' j I' *if* .it i ! !. 1 il - 20 laditirniifr* as aforesaid, within the limits of the district of which he is clerk of the peace, describing them according to their respective numbers. 5. And be it^ &ic. That from and after the first day of Septem- ber next, it shall and may be lawful for every person or persons, who then or thereafter may have any debt or debts owing to him, her or them, not exceeding the sum often pounds currency of this province, by any person or persons whatsoever, being an inhabi- tant of the district within which the court shall be liolden, to cause such person or perscins to be summoned by a writing under the hand of the clerk of the said court, who shall be appointed as hereinafter mentioned ; a copy of which shall be left with some grown person at the dwelling-house or usual place of abode of ^uch person or persons, or by service of the same on the person of such debtor, to appear before the commissionerE of the said court ; and the said commissioners, after such summons as aforesaid, shall, upon proof of such copy of said summons having been so left or served, at least six days previous to the day of appearance, have full power and authority, by virtue of this act, to make or cause to be made, such acts, orders, decrees, judgments and proceeding', between such plaintiff and his, her or their debtors, defendants, touching such debt or debts, not exceeding the sum of ten pounds currency of this province, in question before them, as they shall £nd consistent with law or equity, and all such acts, orders, de- crees, judgments and proceedings, shall be entered in a book to be kept for that purpose : provided always^ that nothing in this act contained shall extend or be construed to extend, to authorise the summoning of any defendant or defendants before any court of requests, within any district other than that which shall be estab- lished by the magistrates in quarter sessions, as by law directed, for the division in which such defendant or defendants shall, at the time of issuing such summons, be resident : and provided also, that the court shall in no case give judgment against a defendant for a larger sum than forty shillings, unless it shall be proved to them that !:e has been personally served with the summons issued in such cause. 6. And be it, &c. That no barrister, attorney at law, or solici- tor, being served with process of the said court, shall be allowed to plead or maintain any privilege against the process, authority, jurisdiction or judgment thereof; nor shall any barrister, attorney at law, or solicitor, have or maintain any privilege of bringing in a superior court an action upon any cause of action, which, from its nature, shall be properly cognizable in the court of requests. 7. Provided always, and be it, &cc. That nothing in this act contained, shall extend or be construed to extend to authorise the holding plea io such court, for any gambling debt whatsoever, or ftwentiCr* 21 h be it clerk of ctive numbers, day ofSeptem- ion or persons, , owing to liim, currency of liiis eing an inhabi- liolden, to cause riling under the )e appointed as B left with some lace of abode of on the person of >f the said court ; s aforesaid, shall, r been so left or ippearance, have to make or cause and proceeding , btors, defendants, um of ten pounds lem, as they shall 1 acts, orders, de- red in a book to at nothing in this itend, to authorise jefore any court of ich shall be estab- s by law directed, ndants shall, at the provided also^ that it a defendant for a 1)6 proved to them summons issued in ey at law, or solici- rt, shall be allo>yed process, authority, y barrister, attorney lege of bringing in action, which, from court of requests, nothing in this act end to authorise the debt whatsoever, or for any ipirituous liquors drunk at a tavern : provided altOt and be iff &£c. that nothing in this act contained shall extend to give jurisdiction to any court of requests, to take cognizance of any cause involving the right or title to real estate. 8. And be it, Uc. That a statement of the particulars of the demand upon which any party shall sue in the said court of re- quests, shall be annexed to, or endorsed on every summons taken out, and served on the defendant Ok* defendants, with such sum- mons ; to which bil^ of particulars the name of the plaintiff or plaintiffs bringing ttie suit shall be subscribed ; and to the items contained in the said bill of particulars iLe said plaintiff or plain- tiffs shall be required to confine his, her or their proof at the trial. 9. And be it &c. That in order to prevent unnecessary expense, it shall and may be lawful for the said commissioners, or any one of them, at any time to give judgment, and cause the same to be entered, on the voluntary confession of any defendant, when the amount demanded does not exceed the jurisdiction of the said court ; which confession may be in the form hereinafter set forth, and that judgment shall not be entered upon any such confession, in a case where no summons has been sued out by the plaintiff, until such plaintiff shall have made an affidavit to be endorsed on or annexed to the confession, declaring that the defendant, before giving that confession, did truly and bona fide owe him the amount therein specified. 10. And be it, iic. That in case any person or persons, shall make oath or give evidence in any cause depending before the said commissioners in the said court, whereby he, she or they, shall wilfully and corruptly forswear themselves, such person or persons shall,Jon conviction, suffer] the pains and penalties inflicted ou per- sons guilty of wilful and corrupt perjury. 11. And be it, hc» That the present courts of requests shall be and continue established until the first day of September next, and that all suits or controversies which shall remain 'unsettled, or which shall not have been finally disposed of in the several courts of re- quests in this province, shall, after the first day of September next, be transferred to the court of requests having the jurisdiction in such suit or controversy established by this act, together with all papers and proceedings relating thereto ; which said unsettled suits or controversies shall be proceeded in until finally disposed of by the court of requests having jurisdiction and established by this act, in the same manner that such unsettled suits or controversies would have been proceeded in if this act had not been passed.. 12. And be it, he. That this act shall extend to all new dis- tricts which may be hereafter created or set apart within this pro- vince, and that the justices of the peace in such new districts shall. 72 Aawrniifr/ at itieir fin t (court of general quarter Beiisioni to be by them holden, partition and set off the same into divisions, and do and perform all such other matters and things, in the same manner as is requi- red by this act of the justices in the several districts now by law established. .. ' 13. And for the better discovery of the truth, and the more so- lemn determination of matters and causes which shall be depending in the said court : Be it therefore^ &c. That it shall and may be lawful for the said commissioners, or any two or more of them as- sembled in court ^s aforesaid, and they are hereby authorised and empowered to administer or cause to be administered an oath or oaths to the plaintiff or plainlifls, defendant or defendants respec- f ively, and to such witness or witnesses as shall be produced by each party, and also to all or any of the ofKcers of the said court, and to all other persons whatsoever, for or concerning any business rela- tive thereunto, and to take the it^Vmation or affirmations of such pla'.iitiff or plaintiffs, defendant o - < lefendants, witness or witnesses, or other persons as aforesaid, who are or shall be of the people called Quakers, or of such other denomination of christians as are allowed to give evidence on their affirmation : Provided always, that although the court may for their better satisfaction and for the discovery of the truth, require the plaintiff or defendant to be ex- amined on oath or affirmation, they shall in no case give judgment for either party in any cause for more than forty shillings, or allow or disallow any set off to a greater amount than forty shillings, on the mere oath or affirmation of the plaintiff or defendant respec- tively, nor without sufficient evidence to warrant such judgment, independent of such oath or affirmation. 14. And be itj Uc. That no person or persons shall be capable of acting ai> a commissioner or commissioners in the execution of the power given by this act, until he or they shall respectively have taken an oath to the effect following : *' I, A. B. do swear that I will faithfully, impartially, and hon- estly, according to the best of my judgment, hear and determine such matters and things as shall be brought before me as a com- missioner of the court of requests of division number — , con- stituted and established under and by virtue of an act of the legis- lature of this province, entitled ' an act to repeal part of, amend and reduce to one act of parliament the several laws now in force in this province for the recovery of small debts, and to extend the jurisdiction of the court of requests within the same,* without favor or affection to either party. — So help me God." Which oath may be administered by any justice of the peace, and shall be by such justice transmitted to the clerk of the peace ,3KfV '■VtP' amtn^ip. 23 n.^i of the diitrict in which the division for which such commiiiioner ihail have been appointed shall be situated. 15. And be it, kc. That from and after the passing of this act, it shall be the duty of the commissioners of each court of requests to appoint a fit and proper person to discharge the duties of clerk, who shall be subject to be removed from his office by the commis- sioners, or a majority of them, fur the time being, and whose duty it shall be to issue all summonses, subpoenas, executions and other process necessary to be issued out of the said court, to receive from the bailifTs all money collected under this act, and to pay the sam6 over to the parties to whom it vas decreed, and to keep a faithful record in a suitable book to be by him provided for that purpose, (which book shall be the property of the district,) of all the pro- ceedings of the court for which he may be appointed, and which clerk slip.ily before he enters upon the duties of his office, take the following oath : « J, A. B. do swear, that I will well and truly perform and fulfil all duties belonging to the office of clerk of the court of requests for the , and will faithfully make, enter and preserve all pro- ceedings and remembrances of the said court, to the best of my skill and ability." — So help me God: — Provided always, that no clerk so appointed shall enter upon the duties of his office, until he shall have given security to the commissioners in the sum of one hun- dred pounds, for the proper performance of his duty — that is to say, shall enter into the covenant hereinafter mentioned, binding himself without limitation as to amount, with two or more sureties to sucii amounts severally as shall together made up one hundred pounds, such sureties to be persons sufficiently responsible in the judgment of the commissioners, and it shall also be the duty of the said commissioners and they are hereby empowered to appoint one or more fit and proper persons to discharge the duties of bailifi*, according to the provisions of this act ; which bailifi* or bailifis shall give security in the satne manner and to the same amount as the clerk of such court, and shall hold his office during the pleasure of the commissioners who, or a majority of them, may in their dis- cretion remove such bailitfand appoint another in his stead. 16. And be it, &c. That the security to be given by every clerk or bailifi* of any court of requests in this province, shall be in the following form, or to the like efi*cct, that is to say: Know all men by these presents, that we A. B. clerk, or bailiff, (as the case may be) of division number , in the district of — , C. D. of the district of o , and E. F. of——, in the dis- trict of , (when more sureties here insert their names) do hereby jointly and severally covenant and promise that A.B. clerk, or bailifi*, (as the case may be) of the — — division as aforesaid, M 24 fs^m^nnir. •hall well tnd truly pay over to the perion or perioni entitled to the same all such monies as he shall receive by virtue of his office of clerk, or bailiff, (as the case may be) from the date of this co* venant, during his continuance in office, and that he shall not within that period negligently or wilfully misconduct himself in hit said office of clerk, or bailiff, (as the case may be) nevertheless it is hereby declared that no other or greater sum shall be recovered against the sureties respectively, than as follows, that is to say : Against C. D. Against E.F. "' If other sureties add them in like manner. In witness whereof we have hereunto set our hands and seals the L. S. •- li. S. L. S. Signed, sealed and delivered, in presence of 17. And be itt &c. That any person or persons who may be injured, delayed or damaged by the negligent or wilful misconduct of any clerk or bailiff of any court of requests, shall and may sue upon such covenant in his own name, and the commissioner or commissioners of such court are hereby authorised to (,ive such judgment thereon as to them shall seem just in law and equity, not exceeding in amount the sum to which their jurisdiction is limited: Provided always^ that nothing herein contained shall prevent the bringing any action upon such covenant in a superior court for a cause of action beyond the jurisdiction of the court of requests. 18. And be itt inc. That every bailiff appointed by the com* missioners of any court of requests, shall attend at the sittings of such court at ten o*clock of the day on which any process or exe- cution shall have been made returnable, and it shall and may be lawful for the said commissioners to administer, and they are here- by authorised to administer, an oath to such bailiff, to the effect following, that is to say : ** You, A. B. bailiff of division number — — of the court of re- quests, in the ■ district, shall truly answer all such questions as shall be put to you by the court, touching the service or execution of any writ or process issued from this court which may have been placed in your hands, and returnable here this day. — So help you God." 19. And be it, &c. That wheney^er any plaintiff or plaintiffs who may hereafter bring an action in the court of requests shall fail to appear, or otherwise establish his, her, or their claim, either in bis, her, or their own person or persons, or by agent, at the time I AimeitVir. lands and seals the •pecifled in (he summons, it shall be the duty of said commissioners to give judgment against such plaintiff or plaintiffs for all costs at- tending the same, as also such sum to compensate the defendant or defendants for loss of time in attending the said court as the said commissioners (unless they shall find such failure to have oc- curred with the assent of, or upon a previous understanding with the defendant) may deem just and equitable. 20. And be it, &c. That in all actions which may hereafter be brought before the commissioners of the court of requests, if it shall be proved to the satisfaction of the court that the claim of the de- fendant exceeds that of the plaintiff, it shall be the duty of the said commissioners, and they are hereby required, to enter judgment in favor of the defendant for such balance as may appear to be due to the said defendant, together with costs : Provided always^ that no sett off shall be allowed to be given in evidence before such com* missioners which shall exceed the amount of ten pounds : And provided always^ that if the plaintiff shall contest such sett off, it shall be incumbent upon the commissioners to suspend judgment, and to admit both parties on the next or other subsequent court day to produce evidence respecting the sam:, unless the defendant shall satisfy the commissioners, by evidence on oath, that he did, four days before the return of the summons issued against him, serve the plaintiff with a statement of the particulars of his sett off, signed by the defendant, in which case the commissioners ma3r on the first day appointed for the trial hear and determine the same, confining the sett off to the items specified in such bill of particu- lars. 21. And be it, he. That if any witness or witnesses necessary in any trial live out of the division where any case may be tried, but within the district in which such division is situated, then, and in such case, he, she or they may be subpcenaed in like manner as if he, she or they lived within such division, but no costs shall be allowed for such witness against the opposite party, unless the commissioners shall find that his evidence was necessary to make out the case of the party calling him. 22. And whereas it is customary among the people of this pro- vince to contract for the payment of a certain specified amount, or of certain sums, in produce or labor, or in some manner otherwise than in money, and doubts may arise with the commissioners ttct- ing under this act whether they can adjudge such amount or sums to be paid in money : Be it therefore, &fc» That in any such case, after the day is past in which the produce or goods should have been delivered, or other thing should have been done, it shall be in the power of the court, if they find it just in other respects, to ''■*K 26 ^m^Mir. give judgment for the amount ia money, as if the debt or agree* njent had been for money. unt 23. And be it^ ^c. That a1! fines levied under the provisions of this act shall be by the commissioner or commissioners of every court of requests, fmid over to any overseer or overseers of high- ways in the division wherein such fine or fines shall have been le- vied, and such overseer or overseers are hereby authorised and required to expend the same in the same manner as other monies coming i^nto their hands to be expended on the highways, atid shall render an account thereof within three months afier the ex- peiiditiire thereof, to the commissioner or commissioners from whom he sliall have received the same, and such commissioner or conmiissioners are hereby required to make a return of such fines and e.\peiiuiture to the ensuirig quarter sessions. 24. And be itj S/c. That if any person shall use contemptuous or insuhing language to ll:e commissioners aforesaid, while dis- charging i!ie duties imposed upon them by this act, or shall in any manner disturb tl.2 proceedings of any court of requests, it sliall and nay be lawful for the said commissioners to imprison such offender or ciTMiders in the common gaol of the district, for a pe- riod not exceeding rix days, or impose a tine not exceeding two pounds, at the dirrrcticn of the comcnissioners, such fine to be le- vied and collected in a Gum-iiary way, by warrant of distress, to be issued by the said con:rr:issioners, directing the same to be made of the goods R:'d chattels of the offender. 25. And be it, ^c. That when any execution shall be issued out of the caid co;;rt, against any defendant or defendants, or agaiobt an',' plaintLror plaintiirs, and suflicient goods and chattels of the parly or pr:rties against wlioin cuch execution shall have been isaued, sh;>!l not be found within the division where such cause shrdl have been triec!, to satisfy ihc same, then and in such tfasc it shall and may be lawful to lev}' the amount of such execu- tion or the balance thereof, of the goods and chattels of such party or parties, in any other division within the same district, and the clerk of the conn from wlience the same issued, may direct another execution for the amount due, to the bailiff of the same division, or the bailifl' of the division in which* the execution is to be enforc- ed ; Provided always, tiiat the bailiff of the division in which judg- ment was entered, shall not be compelled to go out of his division, nor shall the cost of travelling from one division to another, be taxed against the person against whom the executioiv shall he is* sued. 26. And be it, 8fC. That when any judgment in the said court shall exceed the sum of forty shillings, it shall not be lawful for the said commissioner! to issue any execution ther«on, until the ^»»$ntfir:* «7 the debt or agree- ider the provisions missioners of every overseers of liigh- shall have been le- iby authorised and er as other monies the highways, and jonths after the ex- jmmissioiiers from :h commissioner or return of such fines s. 1 use contemptuous foresaid, while dis- ; act, or shall in any if requests, it shall rs to imprison such le district, for a pe- not exceeding two , such fine to be le- ant of distress, to be he same to be made lion shall be issued t or defendants, or t goods and chattels xecution shall have ivision where snch e, then and in such ount of such execu- battels of such party me district, and the , may direct another f the same division, ition is to be enforc- ision in which judij- out of his division, sion to another, be ecutioiv shall be is- •nt in the said court 11 not be lawful for ther«on, until the i expiration of forty days from the time of giving and recording such jjudgment, unless the party obtaining judgment shall make it ap- Ipear by his own oath, or other testimony, to the satisfaction of the commissioners, that he will be in danger of losing the debt in con- [sequence of such delay, in which case, and also in the case of any judgment against a clerk or bailiff, for monies received by him and )0t paid over, it shall be lawful for the said commissioners, or any )ne of them, to order the issue of execution at such time as he lay think fit. 27. And be iU S{C. That no bailift' shall proceed to the sale of jnv effects taken by virtue of any writ of execution issued by a pourt of requests, unless public notice in writing be given at least ight days before such sale, at the most public place in the town )r township where such effects may have been taken in execution, Lf the time and place where such effects are to be exposed to sale. 23. And be it, ^c. That if any action shall hereafter be brought any of the superior courts, which might have been tried in the [ourt of requests, no higher costs shall be taxed to the plaintiff »an would have been recoverable in the court of requests, unless shall be shewn to the court, or to a judge thereof, in vacation, liat from the nature of the plaintiff's evidence, cr the situation of lis witnesses, he could not have proved his case iu the court of eqiiests, or unless in the action in the superior court, the defend- It shall have been arrested. 29. And be it, Sfc. That whenever either of the parties to any luse shall apply for an adjournment, in consequence of the a'u- inceot'some material witness, or for other sufficient reasons shown pon oath to the satisfaction of the court, it shall be the duty of le commissioners to grant the application upon the payment of lasnnable costs by the party applying for such adjournment. 30. And be it, ^'C. TUrd the several fees and sums of money ireinafter limited and expressed, and no more shall be taken. I- ^ +■ Commissioner's JFee.y. I For every final judgment — two shillings. Clerk* s Fees. i |For recording judgment — sixpence. For every summons or subpoena — sixpence. [For every copy of judgment (if demanded)— one shilling. |For every execution — one shilling. h I 28 t« For serving every summons or subpoena within one mile J the clerk's house — one shilling. ' For every mile in travelling to execute process, or eieoutioni where the distance exceeds one mile — four pence. For serving a writ of execution, seizing and selling efieclti, amj making return, if the judgment does not exceed five pounijij —two shillings and six pence. Ditto, ditto, if judgment exceeds j£5, in like proportion. The allowance to bd paid to all and every of the witnesses, be left to the discretion of the commissioners, but not to excenl 28* 6d. per' day, to each. 31. And be it, fyc. That the following forms may be used bj the commissioners of the court of requests. -'^M •Hf-: In the Court of Requests. 'im > District, ^ Division, No. — > to wit. ) plaintil defendi to wit. ) Jn the Court of Requests. Tq You are hereby summoned and requii to be and appear before the commissioners of his Majesty's coi of requests to be held at — — — — in the town of — — — on Salm day the ■ day of——— at . o'clock in the forenooi to testify the truth according to your knowledge in a certain caoij then and there to be tried, between — — - plaintiff, and la within one mile J like proportion. forms may be used m the defendant, lefendant, on the part of the — — , Herein fail not at your jeril. ..make of the goods and chattels of ■ in to wit. ) the said district, the sum of ' provincial lurrency, to satisfy a judgment given by the court of requests, leld in division, number in the said district, on Saturday lie • — day of — at the suit of in the plea of ;bt heard against the said - together with the sum of . — being the costs of said suit ; and should there be any Iverplus after deducting the legal expenses of the seizure and sale, lou are to return the same to the said ■ and you are to cer- ify to the said court on Saturday the — — — day of — ^— what [ou shall have done in the execution hereof. Herein fail not. Witness A. B. clerk of said court. Debt ) Costs > railiff's Fees > In the Court of Kequest3, of the town of in the district, do in the note, ac- ereby acknowledge that 1 am justly indebted to j(n of "- — being the amount due to on a )unt, or contract, (as the case may be) and I do consent that idgment be forthwith entered against me, for the said sum with he costs, but no execution to be issued until the — — .— day of — next. Witness ^ ' ^ (Form of the Oath to be Administered to a WUnesa.) '* The evidence you shall give to this court, touching the mat- er in question, shall be the truth, the whole truth, and nothing ht the truth. So help you God.'* e-: *. ^^^,:■■ ■••ii'£d'' ■ "' "■'• 'if f » ' +. t^li* ..*)a< ^' '«* ■ f- J, »• - -,-V'! '»*: .'<-'9: I. "iiiii'i ;^;r/U'' s'l'-i ■ ^, -fa- i--.-« • -f*^ .ftr i- f 1 Ih f .i * >M' ^..,* "n li- r; ft* •f «? T. .4 v.* to ^'!-) "S^ «« ii^T " '" ^:'; #■ f* *lC ..-.' ,;„ ,-,,;-,■ J AGRICULTURAL SOCIETIES. By the 5 W, 4. c. U. The act of the 11 G. 4. c. 10. (See ante, p. 10.) is continued for one year. APPRENTICES. It has been decided and settled, that the justices have power to order resiitution of the premium received with the apprentice, or sucii part of it as they may think fit; as an incident to their au- thority to discharge. 1 Saund. 313. n. 3. Cites. 1. Salk. 67. 68. 2 Salk, 491. S. C.—Skin, 108 — 1 Bntt. 571. 576. ace— 1 Stra. 79. cor.irat and see the proceeding!* in 2 Barnard, K. B. 244. 296. and Chitty on A]pp. Laws, 107. DOWER. By the 50. G. 3. c. 10. It shall be lawful for any person entitled to dower, to appear before the judge of the district court, or the chairman of the quarter sessions of the district in which the party resides, and being privately examined by the said judge or chair- man, touching her consent to be barred of dower, it shall and may be lawful for the said judge, or chairman, to certify the same in like manner as the same may at present be certified by the chief justice, or any justice of the court of King's bench, and the said certificate shall have the same force and effect and be as valid in law as if the person had been examined by the chief justice or justice, or court of quarter sessions, any law or usage to the contrary in anywise notwithstanding. ^ 2. Fee for the certificate, 5^. See also 3 W. 4. c. 10. ante. p. 156. title '• Dower." IMPRISONMEiVT FOR DEBT. By ttau 5. W, 4. c. 3. No person shall be held to bail for any ,debt under jCIO by the King's bench, or district court, after the K nlij ^ .^•1 m S ^tytreuTirci. 1st of June next. ^ 2 No person shall L: taken in execution for costs only, nor upon any judgment where the debt shall not amount to j£lO or upwards, exclusive of costs. "^ 3. Any person in ex?. cution upon any judgment, for any debt or damages, not exceed- ing <£20, exclusive of costs, and who shall have lain iu prison three calendar months, or been upon the gaol limits for twelve calendar months, t a^', upon application to the court in term time, obiaJQ his discharge, his property still remaining liable to the debt— ^ 4. Any person in execution upon any judgment, for any debt or damages, cxc coding £20, exclusivf of costs, and who shall have lain in prifion (hereupon for six calendar months before the an. plication for his discharge, when the debt shall not exceed jL'loo or 12 calendar raonUis, ^^hen the debt shall exceed XlOO, mav upon giving thirty days notice, in writing, to the opposite party or his attorney, cff his intention to nialvo such application, appL for his discharge in term time, to the C(Mjrt from whence execution issued. ^ 5. The court may examine into the matter, and ma? in its discretion discharge the debtor. § S. Any person who shall assign, remove, conceal, or dispose of any of his property, niij intent to defraud his creditors, and any person who shall receive! such property with such intent, shall, upon conviction, be dcemeil guilty of a misdemeanor, and such oiience may be tried before ann court of oyer and terminer, or general gaol delivery, and mayb punished by fine or imprisonment, not exceeding £100, oriiil months imprisonment. '^ 9. Act to continue in force for four year-, INDIANS. By 5 IV. 4. c. 9. ji is enacted, that from and after the fifth dji] of January next, it shall not be lawful for any person to sell, bar ter, exchange, or give to any Indian man, woman, or child, niilh| *in this province, any kind of spirituous liquors, in any i manner or way, or cause, or procure the same, to be doneforsd purpose whatever, under the pains and penalties of this act. ^i It shall be lawful for any justice of the peace of any district w any offence against this act shall be committed, upon the testiraod of one or more witness or witnesses, to fine the offender forevd offence, in a sum not t?£ceeding £5, which, together with costs ntlending the same, shall be levied, collected, and appliediil the samo manner as fines and penalties are now collected andafl plied, under the act for the summary punishment of petty offencdl But this act not to extend to any medical man furnishing to ar Indian spirituous liquor in case of sickness, or under the direclioij of any medical man. ^ 3. Act to continue in force four years, LANDLORD AND TENANT. By Stat. 4. W. 4. c. 1. It shall be lawful for any landlord, whose tenant shall, after the expiration of any tenancy (by parol or writing) wrongfully refuse, upon demand made in writing, to go out of possession, to apply to the court of King's bench in term, or lo a judge in vacation, upon affidavit, who shall order a writ to issue for si mmoning a jury of twelve men, before the commission- er named to determine the matter ; and if in favor of the landlord, a writ of possession shall be issued. > LINE FENCES AND WATEU COURSES. An Act to regulate Line Fences and Water Courses, and to repeal so much ofey Act passed in the thirty-third year of the reign of His late Majesty King George the thinly ev titled, ^*An Act to provide for the nomination and appointmeni of Parish and Town Ojficert within this Proinnre,''^ as relates to the ojice of Fence Viewers being discharged by Overseers of Highways and Roads, (4 W. 4. c. 12.) WiiEiiEAsmivh difTiculty and inconvenience are experienced and many disputes -uiso from ilie want of some provincial enactment, by wliich each party interested in the making or lepairinrr any division or line fence, may be compelled to make or repair, or pay for making or re- pniring a fair and jnst proportion of such ffMice : Be it therefore enacted iifc. that it shall and may be lawful for tin; iidinbitant householders of each and every township in this province, at their annual town meet- ing for the election of township oflicers, to choose from among the in- habitants of t' .. .-.■iid townsliip, in the same manner as by law other township officers are clioscn, not less than ihtoe or more than eighteen fit and discreet persons to serve the office of fence viewers, who shall perform the duties hereinafter prescribed to fence viewers, and who shall take the same oath of oflico, and in the same manner which per- sons chosen to other township offices are or may be by law required to do, and be liable to the same penalties for neglect or refusal to take said oath of office, to which persons chosen to other township offices and neglecting or refusing to take the oaih of office are or may be by law liable. 2. And be it, S^c. That each of the parties occupying adjoining tracts of land shall keep up, make and repair, a fair ao ' just proportion of the division or lino fence between their several tracts of land ; and that where there shall bo a dispute between the parties, as to the com- mencement or extent of tho part of the said division or line fence which either party may claim or rt fuse to make or repair, it shall and may be lawful for either party to submit the same to tho determimtioa and award of three fence viewers, vhich fence viewers are hereby au- thorised and required, upon being duly notified by either party in such ■^^ 7}^',. ^Wtntin. Wm w At IhI ISi riBII * ruse, to attend ut the time and place itAtcd in inch notice, and after being sutisfied that tho other parly or parties in the case have been duly notified tu appear at the time and place, to proceed to examino tho premises; and such fence viewers, or any two of them, shall deier- mino any and every dispute in the matter aforesaid, between the said parties : and the award and determination of such fence viewers or any two of tiicm, on tlio matters aforesaid, sliall be binding on the parties Hs far as concerns the niakinj? or repairing of such division or line fence, and from thenceforth the occupier or occupiers of tiie said tracts or parcels of land shsill respectively make and repair, and keep in repair, that part uf such division or line fenco which shall havo been assigned in such award or determination to the occupier or occupiers of such tract or parcel of laud, wiiich determination and award shall be made in writing, and signed by such fenco viewers, or u majority of them, and fded ill the town clerk^s office, and n copy of the same made out and given to each of the parties ; itrovided always, nevertheless, that when by reason of any material change of circumstances in respect to the improvement and occupation of adjacent lots or parcels of land, an award which has been r>':idc under this act shall cease in the opinion of either of the parties to be ecpiitable between them, it shall be in die power of either to obtain another award offence viewers, by the sums mode of proceeding as is hereinbefore directed ; and that if tho fence viewers who shall have been called upon to make such subsequent award, shall find no reason for making an alteration, the whole cost of such reference shall be borne by tho party at whose instance it shall havo been made. 3. And be it, fyc. That if any person or persons who may be in the occupation of any tract or parcel of land shall neglct or refuse to maki; or repair (as the case may be) an equal or just proportion of the divi- sion or line fence between such tract or parcel of land and the adjoia- ing tract or parcel of land, for a period of thirty days after beiojl required, by a demand in writing, by the person or persons occupying such adjoining tract or parcel of land, or after the award of the tenet viewers as aforesaid, to make or repair such equal or just proportionoij the division or line fence; or if the party making such demand shallf for such period neglect or refuse to make or repair an equal orjujil proportion of the division or line fence, it shall and may be lawfuifoil either of the said parties, after first completing his own proportion ofl •uch fence, to make or repair in a substantial manner, and ol'gooiif sound materials, the whole or any part of the said division or linefeD«| which ough. to have been by the other party made or repaired, andwl recover in the manner hereinafter mentioned, of the person or perscaj who may have neglected or refused in manner aforesaid, to tnakeml repair Kuch proportion of tho division or line fence, the just and fiiiBi >alue of such proportion, not exceeding the sum of two shillings atJ^ six pence per rod, to be ascertained and determined in the maniial hereinafter provided : provided always, that any fence coming w ^ the meaning and intent of the resolution, resolving what shall becoij sidered to be a lawful fence for that year, entered into by the inhair tant householders at their annual township meeting, shall be cocsidert bt all fence viewers to bo a lawful fence ; niul when tlio hoiueholdors af aforesaid shiiU neglect or refuse to decide by pucIi resolution what shall be a lawful fence, then and in that case it shall bo lawful for such fence viewtrs, when called upon, to exercise their own jud^jnieut, and decide what they consider to be a lawful fence. 4. And be it, ^c. That it shall and may be lawful for any conirais- sionor of the court of requests for the division in which such fence may be situated, and he isj hereby required, upon the demand of any person or persons, to issue a summons under his hand and seal, directed to three fence viewers (by l^eir proper names) of the township in which such fence is situated, requiring them to attend on the day and at the hour herein mentioned, and at a place t!:oruin mentioned, to view such fence, and to appraise the same; also, to issue his summons to the per- son or persons so having neglected or refused to make or repair such proportion of the division or line fence, who shall thencoforth be con- sidered as the defendant or dofciulajiis in the case, requiring him or them to appear at the same time and jt!.;co, to sIk^w cause why the per- son or persons claiming payment as aforc-3:ttiicstcd, whose evidence they shall wish to take, which oath shall bo iu the following form : *• You do solemnly swear, that you will true answer make to such questions as m;iy bo asked of you by either of the fence viewers now here assembled, touching the matters which they are now to examine and determine. So helj) you God." And if any person giving evidence as aforesaid under oath, shall be guilty of false swearing, ho shall be deemed guilty of perjury, and upon conviction thereof, shall be liable to the same punishment and disabili- ties that persons convicted of perjury in other cases are now by law liable. 8. And be it, 4»c. That the commissioner of the court of requests, to whom the determination of the fence viewers shall be returned as aforesaid, shall cause the same to be copied into a book kept for that purpose by the court of requests for the division to which he belongs, and thereupon the said court of requests shall issue an execution against the goods and chattels of the said defendant or defendants, in the suine manner as if the party to whom it is due had received a judgment in the court of requests for the sum which the said r::iice viewers slial' have determined as aforesaid he was entitled to receive, and also (if the said sum amounts to more tlnn two poinids, but not otherwise) for the costs ho may have necessarily incurred in the recovery thereof, and when such sum shall nut amount as aforesaid to more than two pounds, then the other party shall be entitled to an execution from said court of requests against the goods and chattels of the plaintiff or plaintids, for the costs he may necessarily havo been put to in oppos- ing the plaintiff's claim, the amount of the said costs in either case to be determined by the said court of requests : provided, that when the said sum shall amount to nioro than two shillings and six pence per rod for the length of fence which such fence viewers shall have deter- mined such defendant or defendants ought to have made or repaired, the said plaintiff shall be entitled to recover and havo execution for only the sura of two shillings and six pence per rod, as aforesaid, and his costs: provided also, that no such writ of execution shall be issued until after the expiration of forty days from the time of such determi- nation. 9. And he it, Sfc. That all and every of such fence viewers shall be entitled to receive the sum of five shillings for every day they are necessarily engaged iu discharging the duties imposed upon them by this act, and so in proportion for any time less than one day, and nn moro ; and that every witness who shall be summoned, and attend as aforesaid before such fence viewers, shall be entitled to receive two ihilliflg* ^"^ '''^ ponco per day ; and every commissionor of the court of requests, and bailiff, shall bo ODtitlcd to receive, for any service performed under this act, tho sumo fees which they are respectively entitled to receive for similar services in tho court of requests. 10. And be t7, i^'c. That any fcnre viewers, legally holding the of- (iro offence viewers, who shall nogluct or refuse to perform the duties of his office shall forfeit, for every neglect, to any person who may gue for the same, a sum not exceeding forty shillings, with costs of suit *o be recovered upon infornuttion and complaint before any ons of the justices of tho peaco for tho district in which such fence viewer was chosen, and to be levied by distress under a warrant issued by luch justice. 11. And be i7, ^'•c. That when any parly shall cen«!0 to improve his land, or shall lay his enclosure before uudur iinj.rovcmont in common, he shall not havo a right to take away any part of the partiiion fence that to him belongs, adjoining to tho next encloiiure thut is improved or occupied; provided the party occupying tho lands adjoining the game will allow and pay therefor so much as tho fence viewers, or a majority of them, shall, in writing, determine to be the reasonable value thereof; and whenever any lands which have laid unimproved and in common shall bo r'fterwards enclosed or improved, the occupier or occupiers thereof shall jiay for their fiir or just proportion of tho division or line fence standing upon the divisional line between the game land and the land of the enclosure of any other occupant or pro- prietor; ihe value thereof to bo asceituined and set forth in writing by three fence viewers, in ca^o the parties shall not agree among them- selves, and the amount of said value to be recovered according to the proportions so estimated, in tho s;imo manner and form as hereinbefore provided respecting the making am' keeping in repair division or line fences. --- : 12. And be it, ^-c. That in no case shall any person bo authorised to take away any part of tho partition fence that to him belongs, ad- joining to the next enclosure tha is improved or occupied, unless tho party occupying tho lands adjoining tlio same refuse to pay for the game as aforesaid, nor without fnst giving due notice to such party for at least twelve months pjeviously to the removal of tliC same. 13. And be it, ^c. Tiiat when a water fence, or a fence running into the water, is necessary to be made, the sauJC sliall be done in equal parts, unless by tho parties otherwise agreed ; ar.d in case either party shall refuse or neglect to make or maintain tlie share to such party belonging, similar proceedings sir, 11 or may be had as in other cases of the like kind respecting fences out of the water, in this act mentioned. 14. And be it, Sfc. That when lands belonging to or occupied by different persons, and subject to bo fenced and bounded upon, or divi- ded from each other by any brook, pond or creek, which of itself ii not a sufficient fence, in such case, if the parties disagree, the same may be submitted to three fence viewers, aa heretofore provided in casci of disagreement ; and if, in tho opinion of such fence viewers^ ti II .'.4 8 *•<' fti irr; Bl^^etiM* f|;i •uch brook, riTor, pood or creek, is not of itf elf a rafficiani fenc*, and Ihat it is impracticable to fence at the true boundary line, they shall judge and determine how or on which side thereof the fence shall be set up and maintained, or whether partly on one side and partly on the other side, as to them shall appear just, and reduce such their deter- mination to writing, as heretofore provided in other cases ; and if either of the parties shall refuse or neglect to make up and maintain the part of the fence to such party belonging, according to the fence viewers* determination in writing as aforesaid, the same may bo dono and per- formed as is in this act befuro provided in other cases, and the delin- quent party shall be subject to the same costs and charges, and to bo recovered in like manner. 15. And be tf, S^c. That in all cases where any party shall desire to have a lane between his land and any adjoining tract or parcel of land, and shall make the fence on one side of the said lane on his own land, he shall not be obliged to make or repair, or pay for making or repairing any part of the fence on the other side of such lane, any thing herein contained to the contrary in any wise notwithstanding. 16. And whereas it is expedient to provide for the opening of water courses in this province: Be it therefore Sfc. that in all cases when it shall be the joint interest of parties, resident within this province, to open a ditch or water course for the purpose of letting off surplus wa- ter from swamps or sunken miry lands, in order to enable the owners or occupieis of such swampy or sunken land to cultivate or improve the same, it shall be the duty of such several parties to open a just and fair share of such ditch or water course, in proportion to the several interests that such parties may have in the sumc ; and in cases where a dispute shall or may arise as to the part, width, depth or extent, that any party so interested ought to open or make, the same may be re- ferred to three fence viewers, in the samo way and manner as is here- tofore by this act provided in cases of disputes between parties relative to line or division fences ; and it.shall be the duty of such fence view- ers, to whom such matters shall be referred, to divide or apportion such ditch or water course among the several parties, as in the opinion of such fence viewers, shall be a just and equitable proportion, having due regard to the interest each of the parlies shall have in the opening of such ditch or water course ; and the fence viewers shall at the same time decide what length of time shall be allowed to each of the parlies to open his or her share of such ditch, and the determination or award of such fence viewers shall be made in the same form, and signed and executed in the same manner, and have the same effect in regard to ditches or water courses, as is provided by this act in regard to line or division fences. 17. And be it, S^c. That when it shall appear to such fence v'leww that the owner or occupier of any tract or parcel of land is not suffici- ently interested in the opening of such ditch to make him a party, and at the same time that it is necessary that such ditch should be continued across his land by the other party or parties, at their own expense, they may award th9 same iu manner and form aforesaid, and upon ^ntrcnTia. kioni fenca, and line, they shall ihe fence ihall be and partly on the Kuch their deter- ises ; and if either maintain the part llhe fence viewers* be done and per- >es, and the delin- Charges, and to bo party shall desire tract or parcel of aid lane on his own pay for making or of such lane, any notwithstanding. he opening of water in all cases when it lin this province, to tting off surplus wa- enable the owners cultivate or improve ies to open a just and [)rlion to the several and in cases where depth or extent, that the same may be re- id manner as is here- tween parties relative iT of such foHco view- divide or apportion ties, as in the opinion lo proportion, having 1 have in the opening wers shall at the same to each ofthepartiei jtermination or award form, and signed and me effect in regard to ict in regard to line or to such fence viewen 1 of land is not suffici- fnake him a party, and :h should bo continued at their own oxpenje, a aforesaid, and upon luch award, such party or parties may lawfully, and without molettn- (ion, open such ditch or water course across such land as aforesaid, at their own expense. 18. And be it^ S^e^ That if any parly shall neglect or refuse to open, or make and keep open his share or proportion allotted or awarded to him by such fence viewers as aforesaid, within the time allowed by such fence viewers, either of the otiior parties may, after first complet- ing his own share or proportion allotted to him in minner aforesaid, open the share or proportion allotted to such party neglecting or refus- ing to open the same, and such party so opening such other parties* iiliarc shall be entitled to recover the value thereof from the party so neglecting or refusing to open his share or proportion, in the same way and manner and form as is in this act provided, relative to lin* and division fences. 19. And he it^ Sfc. That all fines levied under the provisions of this act shall be by the justice or justices of the peace by whom the same may be imposed and collected, paid over to the overseer or overseers of highways, in the division wherein such fine or fines shall have been levied; and such overseer or overseers are h ,reby authorised and re- quired to expend the same in the same manner as other raonies com- ing to their hands to bo expended on the highways, and shall render ;in account thereof within three months after r\pendituri3 thereof, to the justices in quarter sessions assembled. 20. And be it^ ^c. Tiiat this act shall bo and continue in A. . 'e for four years, and from thence to the end of the next ensuiug >< sVion of parliament, and no lontrcr. 21. And be ity ^'c. That so much of the fifth clau; c >fan act of the parliament of this province, passed in tlie thirty-third yeai of the reign of King George tlio third, entitled, " an act to provide for the nomina- tion and appointment of parish and town ofikcrs within this province," as provides that persons choson to be overseers of highways and roads, shall also serve the office of fence viewers, shall be, and the same is hereby repealed ; and that whatever duties that wera before the pas- sing of this act directed to be performed by surli overseers of highways and roads, in relation to fences, siiall hereafter be performed by the persons chosen to bo fence viewers, under the authority of this act. PUBLIC HEALH. •i choien, the town- ^UtrenM. 13 for by law) fihall be allowed to run at large, or be restrained from so |^o\ngt within the township, for the year ; also the fine upon the owners of cattle running at large, contrary thereto, and make such rules and regulations relative to pits, precipices and deep waters or other places, dangerous to travellers, or the destruction of weeds detrimental to husbandry ; the height and description of fences; and such Ovner matters connected with the same, as may tend to promote the peace and welfare of the township. ^ 9. Township Cleric. — It shall be the duty of the clerk appointed as aforesaid, for any township, to record all such matters as shall be lawfully transacted at such meeting, and all other matters re- lating to the township it shall be his duty to record, such record and all other records, papers, ninnies unexpended, and property of the township in his hands, shall be faithfully kept and nre^ierv- ed, and by him delivered to his successor. <^ 10. Every township clerk shall make out two copies of the proceed- ings of the meeting a' which he was appointed, one of which he shall post up in a conspicuous manner at the place where such meeting was held, and transmit the other to the clerk of .ne peace to be filed in his ofiice as a record, and open to inspection, on payment of one shilling for each search. <^ 11. Notices of Appointments. — The township clerk shall cause the several township officers to be served with a notice of their ap- pointment, signed by his hand, within ten days after their ap- pointment, requiring them to take the oath (or affirmation) of office, which notice may be in the following form. <^ 12. Sir : You are hereby notified, that you were appointed on the _«« day of to the office of and you are required to take the oath, or affirmation of office for the said office according to law. (Signed) A. B. To C. D. TowMhip Cleric, Dated, fac, Oath of Office. — The t.^wnship clerk is authorised to adminis- ter the oath of office as follows. '^13. ,>>' You A. B. do solemnly swear (or affirm, as the case may be) that you will faithfully and diligently perform the duties of the office ot — for this present year, according to law, and the best of your abilities. So help you God. Overseers of highways to take the following oath, a copy of which shall be given to them by the township clerk. ^ 14. You, A. B. do promise and swear, (or affirm, as the case may be) that you will faithfully, diligently and impartially perform the duly of overseer of highways, and that you will require each and M 14 f^TK^rntia. V . y ;" all every person under your charge, (not having compounded forhii statute labor) faithfully and diligently to perform the same accord. ing to law, either in person, or by an able bodied substitute, am will report every defaulter to the commissioners, and peVfornj other matters and things pertaining to your office, as the lawi rects. So help you God. The township clerk shall record all the oaths, and report toil, commissioners at each and every meeting of the board, all defay]. ters in taking such oaths. ^15. Township Cleric's Fee. — The township cler; entitled lo 5},, day from the treasurer of the district, for every day that heinjt be necessarily employed in the duties of his office, which, Biij fees allowed by this act, the treasurer is required to payondt mand, ip ? affidavit being made by such township clerk belon any ju :cc of the peace, that such demand is just and true. \\{ Township clerk authorised to administer any oath or affirm). tion, authorised or required to be taUen by this act. "^ 17. Assessor's dufi/. — The assessor shall demand and receive fron every rateable inhabitant in the township a list of all the raieaWii personal property in his, her or iheir possession in the pm'mi and all the lands, tenements, or other real estate in l)i«, herj their possession within the township, specifying the number cfife lot or lots, the number of the concession or concess^ious iinvjiitil the same is or are situated, or otherwise particularly descritjiti the same, and also the number of acres cultivated or unculiivai^ in each lot or parcel of land ; which list shall be taken betiri the first Monday in February and the court of general sessions of the district, which shall beholden next after the fii day of March in every year, and shall make a return within time aforesaid, duly attested under oath (or affirmation) before clerk of the peace for the district, or township clerk, of a rateable inhabitants, witli a true list of all their rateable piopfiJ specifying the particulars above mentioned, and shall in like mi ner insert his own rateable property tlierein, at the foot ofv he shall subscribe his name, and shall deliver such return to clerk of the peace, to bo laid before the quarter sessions, andsl within the time aforesaid, put up a correct copy thereof for pui inspection at the place where the last township meeting was and the assessor shall report to the commissioners thenamcsofi such persons as he conceives have given in false lists, or reft or neglected to give any list, in order that such offenders dealt with according to law, at least fourteen days before returi his roll to the clerk of the peace. ^18. Census* — The assessor is also required to demand andrei from every inhabitant householder or head of a family in hisloi 1 • ^?iirrn5ra. 15 ihip, a true and correct list of the number of persons composing such family, male and female, and their respective ages : also all deaf and dumb and insane persons, including all persons employed by or resident with such houstholder or head of a family, wnich list shall or may be given in the following form : Names of Heads oi Families. Number in each Frtmily. Denfk. Dumb. Mhles. Under IG. lOvcr 16, Females. Jnderlfl Over 16 Iniane. And if such householder or head of a family shall refuse or neglect to give a true and correct list to the assessor, he shall be liable to the same penalty as persons refusing or neglecting to give in a tr'jlist of their rateable properly, and to be recovered in the same way. § 19. Every assessor shall subscribe such list, and shall vransmit the same to the clerk of the peace before the said sittings of the quar-- ter sessions, verified upon oath or aflirmation, before the township clerk or clerk of the peace to be a true list. '^ 20. The clerk of the peace shall make out a general return of the population of his district, from the assessor's : .turns for the year, and transmit the same to the lieutenant governor, on or be- fore the 1st of July in every year, and if such return shall not be complete, he shall send in a return of such townships as may de- ficient as soon as practicable after he shall be enabled to do so by the assessor's returns. <^ 21. Assessor's Fees. — The assessors shall be entitled to demand from the treasurer of the district the following fees, per cent., viz : £ s, d. If the assessment of the rate of one penny in the pound does not amount to £50, he shall receive 7 If above £50 and under £100 6 If above 100 and under 150 6 If above 150 and under 200 5 If above 200 and under 250 4 15 Ifabove 250 and under 300 4 5 If above 300 and under G50 4 Ifabove 350 3 10 Collector's duty.^lt shall be the duty of the collector, after having received a certified copy from the clerk of the peace of the 10 5 p.t n 16 ^trtienTm, Ytssessment roll for the township for the previous year, which sha be sufilcieiu authority for collectings the same from time to limt to demand and receive from the inhabitants, all such rates and as Kessments as may be due and payable on such assessment list, ani fthal! pay the same over to the district treasurer on or before iIk sittings of the quarter sessions, reserving the following fees pe, cent. ^ 23. li the assessment does not amount to £50, then upon the £ s, i sum collected 8^ o If above £50 and under £ 100 7 lo o If above 100 and under 1 50 7 5 o If above 150 rnd under 200 , , 7 q { If above 200 utul under 150 G 10( All surn.i over 250 > ( Collecting Rates. — If any person naui'\y tiio rate for tije space o( l/.iieeii) days after demand by the rollector or his i-.-ent duly appointed, iJ said collector npor; oath before one of the commitsiouers, ofsytJ demand and refusal, shall be entitled to demand an execu'ioDforj the amount, which execution the comu/issioners are authorlocdi grant, and upon receipt thereof, ;hc collectoi- shall li\y the by distress and sale of the gootls luid cbattelj . f ihu defaulKfJ ^ivifig eight days previous notice of sucli sale in ihree m lie places in the township, and render the overplus to the oivneii al*:*;" dedueiing the rates assessed and legal charges of disin and sale, ^i 24. Fee to such collectors for every distress, advertising and sit Ss. 9d. § 25. Collector's Bond. — Every collector shall, within eight iJiij after his appointment, and before he shall collect any money, ter into a bond, jointly and severally with two sufficient freeholiJi to be approved of by the township chrk, to the treasurer ofil| district to the full amount of double the assessment of (lie ton ship for the preceding year, which bond may be in the fullonij form. "5> 26. Know all men by these presents, that we, A. B. collectoroll rates for the township (or townships) of— —in the disirijf — — . and C. D. of and E. F. of are held and bound to J. O. treasurer of the district of in the sumof- currency, to be well and truly paid to the said J. O. trea$iirti| aforesaid, or his successors in office, for which payment ne truly to be made to the said J. O. we bind ourselves joindy I severally, our heirs, executors and administrators firmly bji! presents. Sealed with our seals. The condition of the above bond is such, that if (he ^^trmira^ 17 bounden A. B. shall collect all the rates and assessments of the. township (op townships) of for the preceding year, ending the first Monday in January in thii present yeur, so i'nr as the law may enable him to do, and sliull pay all the monies which he may iO collect (except his own per centuge) to the irea.«.nrep of the dis- trict, on or before the next ensuing sittings of the roint of quiirter tessions, which may be next after the first diiy of March, then thi:> obligation to be void, or otherwise tu reniiiin in full force and virtue. If from want of assets or absence of the party from the township, the collector shall not be able to collect the rate, the same may be collected by the collector in any subsequent year as if the rale was due for the year for which he shall be appointed. § 27. Township Cterk*s Bond. — Every township clerk shall, on or before the first meeting of the commissioners, after his appoint- ment, enter into a bond jointly and severally wiih two siiSicient freeholders, such freeholders and the amount of the bond, to be approved by the commissioners, which bond i^hiiil be in the furni prescribed for collector-i, except the condition, which shall be as follows. ^ 28. The condition of the above bond is such, that if the above bounden A. 13« shall well and truly pay over all monies coming into his hands by virtue of his office, and applicable to the geuerid uses of the township, and deliver the remainder (if any there be,) together with all books, records and papers belonging to the township, into the hands of his successors in ofllce as the law di- rects, then I. «s obligation to be void, or otherwise to remain in full force and virtue. Overseer's duties, — It shall be the duties of the overseer of the highways of any township to superintend, make and keep in re- pair, the highways, roads, streets and bridges, that may be allot- ted to them severally, from time to time, and ordered by the board of commissioners, and every such overseer after having received such order by giving at least three days notice of the day, hour and place, summon such persons within his division as are liable to perform statute labour that may be due, and order them to work within the time stated in such order, on such parts of the roads, bridges or highways as they are directed to make, amend or repair, and shall or may direct all persons performing such labour, to destroy as much as may be in their power, such weeds as arc in his opinion hurtful to good husbandry, and shall give to every person who may have done his statute labour for the year, requiring the same, a certificate under his hand of the performance of such statute labour, to protect such person from being called out again in any other township. <^ 29. \4tk ': If 11 i M 18 ^tiiientrn. >;i Composition of Statute Labour. — Any pemon liable to statute labour according to law may compound on or before the first of May, by paying to the overseer of the division Ss. for a team and driver for every day he may be required to work, and 2t. Qd, every day without such team, which sums shall be expended In such manner as the overseer shall think best fur the improvement of the roads in his division. § 31. Materials. — In order to provide materials for making and erecting bridg. s or causeways, or repairing any road, any over- seer in the ncti' sT discharge of his duty, may direct the persons performing statutt 'nbour to cut down or make use of any tree or underwood, standing upon any unenclosed and unimproved and uncultivated land, and wilfully doing no unnecessary injury to the premises. '^ 32. ■- . .,„ :n>, -^j yji v.? t>h • Statute Labour. — The roads and highways through every town- ship, as also a just share of any road required and necessarily running between the same and any other township, shall be clear- ed, repaired and maintained by the inhabitants thereof, and every person liable to statute labour, if not compounded for, shall either in person or by a sufficient and able bodied man in his or her stead, be obliged, under the direction of the overseer for the divi- sion, to work faithfully and diligently on the said road, and shall bring with him one spade, axe, pickaxe, bar, or such other im- plement or instrument useful for the purpose aforesaid, as he may be owner of, and bo directed by the overseer to bring for the time he may be liable to work, allowing eight hours to each day's work, exclusive of the time of going to and from the place of work : and every person keeping p. cart, waggon or team of one or more horses, oxen or beasts of burthen, shall send on every day to be appointed by the overseer, « cart or waggon and t'?am, and one able bodied man to drive the same, fiir such time as he shall be liable to work on said roads recording to law, allowing eight hours for each day's work, which said day's work shall be held equivalent to two day's personal labour ; r\nd if any labourer or driver shall refuse or neglect to work faithfully, or to carry good sudicient loads during the time above mentioned, it shall and may be lawful for the said overseer to discharge such labourer, and the person furnishing the team, shall be liable to the forfeiture which every such person would have incurred by virtue of this act in case such labourer had not attended, or such team and driver had not been sent, and shall not be allowed for the part or portion of the day which he may have laboured. "^ 33. The overseer shall cause all statute labour and monies in lieu thereof, to be expended between the 1st of May and the ISthof AMenM* juTy Ih each year, eicept' otherwise directed by the townihip commiMion^i'* ^'''i' '^^ '^'<^ township. ^ 34. Penalty/ upon Defaulters. — Every person liable to statute In- hour, not having compounded, having been duly notified, and neg- leciing to attend, or send a sufficient deputy with such carriage, team, implement or instrument us may be by this act required and directed by the overseer at the time and place appointed, shall forfeit 5a» for each day : and every person after notice to view fences and appraise and deliver his determination within the time specified by his act, shall forfeit not less than 5$., nor more than 205., to be recovered by the board of commissioners, by confes- sion or upon the oath o? one credible witness, and to be levied by warrant, under the hand and seal of the commissioners, by distress and sale of the goods and chattels of the person so offending, ren- dering the overplus to the party after deducting the penalty and legal charges attending guch distress and sale ; and the imposing of any such fine or penalty by the commissioners, shall not release the party from his liabilityi but he shall be subject to perform statute duty at any time within the current year when called upon. ^ 35. Obstructions. — And if any person shall wilfully stop up any road or roads in any township, or shall pull down or destroy any fence, railing or guard, that shall have been erected along any water, bridge or precipice, for the safety of travellers, or any guide or finger-post, such offender shall forfeit for every offence, a sum not less than Ss. nor more than <£d, to be recovered as in the preceding clause; or in case any tree or trees shall be cut down or fall out of any enclosed land, in such a way as to obstruct in any public road or highway, the owner or occupier of such en- closure, shall remove the same within twenty-four hours after notice received of such obstruction, under the penalty of 10j»*. for every day the obstruction continues, to be recovered in like manner. § 36. Ouerseer*s List. — The overseers shall make out a true list or account of all persois within their divisions, and also of all who own either a sleigh, Ci^rt or waggon, and team, and who are liable to work on the hiji^hwa^-s; and of the labour done or unperformed by any person liable to perform or compound ; and of all monies that have come into their hands by virtue of their ofiice ; and of the expendhure of the same ; which list or account shall be sub- scribed by such overseer, and delivered upon oath (if required) to the board of commissioners, at their meeting on the 2nd Saturday ill November. ^ 37. I'ound-keepcr' s duty. — It shall he the duty of the pound-keeper to provide himself with sufficient yards or enclosures for the safe keeping of all such animnh as it may be his duty to impound, ^0 ^Wrn^a* and to impound qH animals unlawfully running at Urge, treipuu. ing und doing damiige, iliut may be delivered to him by any person resident within his division taking up the game, and to liirnish the same with necessary food and drink; and ifa(\er the space of 48 hours fiuch animals shall not be claimed and redeemed by the owner, or some one in his behalf, paying the pound-keeper his lawful demand and charges, and damages awarded, in the manner hereinafter mentioned, to have been done by such animaU to the person taking up the same, he shall cause a notice in wriliog to be uflixed in three public places in the Township, for at least fifteen days, which notice shall give a description of such animals; and also state the time and place at which he intends to expose the same to sale; and if the owner does not, within the time, re- deem the same, by paying to the pound-keeper his legal charges, und the damages awarded, he bhall proceed to sell the same to the highest bidder, ai the time and place mentioned in the notice, and after deducting his own legal charges and the damages awarded, return the overplus to the owner ; and if none shall appear to make the claim within three months after notice and sale as aforesaid, the pound-keeper shall pay such overplus into the hands of the township clerk, for the improvement of the roads and bridges. <^ 38. Oxen and Horses. — If any ox or oxen, horse or horses, shall be impounded, and not claimed before the expiration of fifteen da3fs as aforesaid, and the owner shall not be known by the pouni* keeper, in that case he shall not proceed to sale, but postpone tiie same for three months, at the expiration of which time he shall sell the same, and dispose of the proceeds as in the last clause, ilie owner being at liberty at any time before such sale to redeem sucji animals, on paying demands as aforesaid. ^ 39. Notice. — The person impounding any animal, shall, within twenty-four liuiirs, state in writing to the pound-keeper, all de- mands against ilie owner for damages, and if the owner shall ten- der the full sum awarded as damages, with costs then incurred, such owner shall not be liable to subsequent costs, which shall be borne by the party claming extravagant damages. ^ 40. Damaires,— The pound-keeper shall, within twenty-four hours after having impounded any animal, notify three disinterested free- holders to appraise the damages done, and to judge of the suffici* ency of the fence enclosing the ground wherein such animals were found doing damage, and such freeholders, or any two of them, shall within twenty-four hours after such notice view such fence, and determine whether the same is a lawful fence according to the resolutions of the township meeting, and if so, appraise the dam- age done, and shall deliver their award in writing to the pound* ^ti9enir«i* 2J l^efper* within (iventy-roiir liuurs after litiviiig been in notifieii ; and if no damages shall be awarded the poutid-kecper shsill, on demand, deliver the same to the owner, and shall be entitled to recover his costs and charges from the impounder. ^ 41. Rams, ^c— It shall not be necessary for the pound-keeper to cause fences to be viewed and 'images appraised in cases wlvrc oniroals are impounded by him ihat may be lawfully imp' .mded without being found doing dnm.igc, such as rams nnd o'.ikt ani- mals not free commoners, but shall otherwise proceed as the law directs. ^ 42. It shall be lawful for any person to tnke up any ram, bull or boar, running at large, contrary to the rpgnlations, and deliver the same to the pound-keeper, to be dealt with accor- ding to law. § 43. It shall be the duty of the pound-keeper Co impound any ram, bull or boar, as iiforesaid, that mny be delivered to him, and advertise the same at three public plnccs in the town- ship for the space of eight days, or such further .ime ns shall be lawfully prescribed by any regulation nt the township nuftinir, and at the expiration of said term publicly to sell the same to tiio highest bidder, at the time and place stated in such advertisement, unless such animals shall be previously claimed and redeemed by the owner, by his paying to such pound-ketper his fec^ and tho fine imposed at any township meeting, and the poiuiii-kL't per (.iiall pay over the same (except his fees) to tlie towndiip clerk. — Sec. 44. reef, — The pound-keeper's fees shall be regtilaled by tht> board ofcommissioners, and he shall pay over without delay, to the person entitled, such sums awarded as damages, that may come into ids hands by virtue of his office. Sec. 45. Commissiotiers. — The commissioners to be appointed inuicr this act, shall be known by the name of the board of commission- ers for the township of and as such shall be capable of per- forming, ordering nnd doing all such matters and things as shall be authorised by this act, nnd the majority shall be competent to tr insact any lawful business. Cleric to Comjnissioners. — The township clerks shall also be clerks to the board of commissioners, and siiali attend all their meetings, and record in a book, all judgments, decisions, or orders made by such board, and all other matters which it may be neces- sary to record, which records shall be part of the records of the township, and shall !>e delivered to their sncc*'Sj;or? in office. — Sec. 47. Meeting of ike Board. — It shall be tite duty of the board to meet at the same place at which the township meeting was last before holden, at the hour of ten in tlie forenoon, on the third Saturday in January, the 1st Saturday in Jidy, and on the 3rd n aTiirriitrii. Saturday in October, and at ai many other timet and placet in the township at they may deem expedient. Sec. 48. Their I>uf te«.— The board of committioners authorised ami required to talte charge of, nlint and order to te made, repairtd and kept in repair in such manner at ihey in^y think expedient, all such roads and bridges as shall be requires M be kept by (he inhabilantt by any act or acts oftlie legiHJatui'e. Sec. 49. Division of the Towjiship. — The said board orrominissionerR, at their meeting on the 3d Saturday in Jtinuary, or at tome ad- journed meeting, before the 3d Saturday in April shall divide the township into divisions, and allot to the overseers their several divisions, and order statute labour to be expended on the roads in any particular part of such township or any adjacent township, ai to them shall seem expedient : and also to hear and determine upon all such matters as may come before them, by virtue of ilijg act. Sec. 60. <#< < cff,, Pound Feet. — The board shull also resolve what fees or com- pensation for poundage or feeding animals, may be taken by the pound-keepers, and the quantity of provender to be daily allowed to the animals ; and allot to the pound-keepers their several pre* cincts or divisions, n statement of which, shall be transmitted to the several pound-keepers, and a true copy posted up in some place in the township, within the respective divisions. Sec. 61. Vacancies.-^h shall be lawful for such board, at any of their meetings as aforesaid, to (ill up all vacancies in the township offi- ces by appointing other officers instead, that may occur from deatlt or removal, or the neglect, or refusal of any person to take the oath, or affirmation of office, and the township clerk shall notify and administer an oath, or affirmation of office, to snch aa may be np- pointed at meetings of the board, and report delinquents in the same manner as if they had been appointed at the township meet- ing, and such officers, so appointed hy such board, shall have the same power and authorities, and be liable to the same responsibili- ties and penalties as under an appointment at the township meet- ings. Sec. 62. ■-■'-• '■{ . -■ ' ,:---'vy^ Exemptions. — Any person not assessed at more than £35, and ' by reason of age, sickness, numerous family, or misfortune, in poor ' and indigent circumstances, may, upon notifying the overseer, ^ and application to the board of commissioners to be released frnm • statute labour, in the discretion of the board, be exempted from the ' whole or part of such statute labour. Sec. 63. '<" Neglecting Oath of Office, — Any person appointed to a town* < ship office, neglecting or refusing to take the oath, or affirmation of office within eight days after due notification, or after such oath or affirmation, neglecting or refusing to act, or taking any atydnitia. 23 ttHBHir (te or ullowance than i« authoriied by tliit act, or neglect* ing, or refusing to deliver in a true list of his or licr ruieable pro- perty, real or personal, or wilfully niiitatin^Kurli rateable prnper- tV, shall forfeit and pay, not less ihaii one pound, nor nturc than tlve pound«>, with costs, fur every such neglei t, refusal, or violation of the law, to be levied by disitrcsis and jtaU* of (he olTender'ii goods : t>i^ht days' previous notice of such s:tk> buiug f^iven, and the over* plus rendered to the owner. Sec. 54. Upon complaint of such neglect, or rffusal, or violation, hofore the board of commissioners, or if such neglect, or refusal shall come to the knowledge of the said commissioners by returns as aforesaid, (he said hoard shall, ufter summoning the party, or (ierinqiuiit before them, (which giniimons, any member of tlin hoard may i^sue) hear nnd deterntiiie the same, upon suHlcient proof, by confession, or oath of one wit- ness, aud issue such warrant of distress, and sale as aforesaid, to some constable of the township who is nuihorised to execute (he same, unless the penalty be immediately paid, and the same, when collected, sIihII be pai«i to the township clerk. Sec. 55. CotnmissioTter^s Icci. — The several commissioners lor the res- pective townships, sliail be entitled to demand and receive from (he treasurer of the district, the sum of 5^. per d:iy, for every day diey aie necessarily tngaged in the said duties and services, the said days to be certified by the township clerk, w hich sum the trea- surer is authorised and required to pay, on demand and produc- tion uf such certificate, and the commissioners shall render an ac- count to the township clerks, of the monies so received by them, which account, together with all monies received by the said clerk for his services, shall be laid before (he next township meeting for inspection. Sec. 56. ; Conslablti^s Fees. — The constable, executing any warrant, exe- cution, or summons under this act, shall be entitled to the follow- ing fees, and no more, for executing the same, viz: 4^/. per mile for every mile he may have to travel to execute the same, to be verified upon oath; if required, and for levying, advertising, sel- ling and making returns, 2s. Gd. ; fur every summons sued, 8^.— - Sec. 57. Overscer^s Returns. — It shall be the doty of the board careful- ly to examine the returns of the several overseers, and of the township cleik, nnd also the books, accounts, nnd papers of such cler'-., and upon the appearance of any neglect or default, the board shall summon such person to answer (or such offence, and proceed against him, as if complaint had been duly made. Sec. 58. Summons. — It shall be lawful fur the board, or ^ny one of them, to issue a summons to any person in the township, that may be re- quired by any party, or if such board shall think it necessary to 24 ^^drn^s^. require the altcndance of any witness to appear before the board !it any of their meetings, to ffive evidence, or answer to a com- plaint, as the case may be, which summons may be in the follow- ing form. See. 59. ' -^ '•n>*-_. • To A. B. You are hereby required to be and appear before the board of commissioners for the township of- on the ■■■ day of • « at in the said township, to give evidence respecting a com- plaint against C. D. and for (describing the complaint) or to an- swer to a complaint against you, (describing the complaint) as the case mav be. Dated, this — — day of 183—. E. F. ;» - ' ' ' - ,? ~ Commimontr, Monies. — Justices of the peace are authorised to pay into the hands of the township clerk, all monies arising from fines, &:c. un- der the summary punishment act (4 W. 4. c. 4.) also the commu- tation in lieu of militia service, under the 4 W» 4. c. — . Sec. 60. Annual Account. — The township clerk shall make out a full and detailed accojiut of all monies received and expended by vir- tue of this act, during the current year, certified and signed by him, and a copy thereof shall be put up for public inspection, at three of the most public places within the township, one of which shall he the place at which the ensuing township meeting shall be order- ed to be held, on or before the third Monday in December, and the said clerk shall lie allowed 10*. for each copy. Sec. 61. Expenditure of Monies. — All monies that shall come into the hands of the township clerk by virtue of his ofiice, shall be expen- ded ^ by the board of commissioners in making or improving the public highways, roads and bridges of such township, and shall be paid by such township clerk to the order of such board, and the monies remaining unexpended in his hands, shall be handed over to Ills successor, within four daj's after the termination of his ofijce. Sec. 62. Wild Lands. — The township clerk authorised to demand and receive from the district treasurer, at any time after the quarter ses- sions, next aficr the first of March, all monies paid into the trea- sury for his township, under the wild lands assessment act, for the improvement of roads juid bridges, and that have not been ex- pended, and the respective township clerks first appointed under this act, are authorised to demand and receive from the treasurer, all such money as aforesaid, as may be remaining in the treasury tniapproprlated, any law, &c. to the contrary notwithstanding.— Sec. 63. The wild land assessment monies shall be laid out by tbe commissioners in making or improving roads and bridges in the township in which the lands are situated for which such taxe» fr ^Wcn^A* 25 prepaid, and the sa'u^ commissioners shall make out a return of the amount so received, and the manner and place where the same lias been expended, to be handed to the clerk, and laid before the next township ineeting. — Sec. 64. »• 'Vif ,/ttf>l fir Contracts. — Commissioners may contract with any person or persons resident in the township, for making, in a permanent and substantial manner, any pa.t of any public road within their township, in lieu of his or theii statute labour, for any number of years, not exceeding five ; which agreement shall be in writings and signed by the parties, and shall be binding on the commission- ers and their successors, and the other parties to the contract. — Sec. 65. In case of any breach of said contract, the parlies shall be liable to the same penalty that persons are by this act liable, for refusing or neglecting to perform statute labour. Sec. 66. Arbitration by Ballot — In case of any dispute as to the fulfil- ment of the contract, the same shall be submitted to three overseers of ijighways of the township for the year, to be drawn by public ballot, from the whole list of overseers, by the township clerk, who shall give the contending parties notice of the time and place of such ballot, and i .' township clerk shall appoint the lime and place for the meer (g, and shall give the overseers and the parties to such dispute, at least, eight days notice, and thereupon it shall be the duly of such overseers to meet, and after having the said agree- nent submitted to them, and examining the premises, to make !:ucli award as to them shall appear just, which shall be final. Sec. 67. False swearing, or affirming, under this act, to be liable to prosecution for perjury'. Sec. 68. The township clerk shall re- quire the bond from the collector, and if not given, it shall, be reported to the board of commissioners, who may appoint another, or impose a penally for neglect. Sec. 69. Town Wardens. — Commissioners, under this act to be town wardens. Sec. 70. Township Records. — Records of the townships may be exam- ined, on payment of \s. Sec. 71. In case of the inadvertent omission of any name in the assessment roll, such person shall, notwithstanding, be liable to work on the highways. Sec. 72. Commencement oj Act. — This act ta take eflVct on the first of December next, and no sooner. Sec. 73. And be in force two years. Sec. 74. Immediate Repairs. — In case it shall be necessary to repair any sudden breach in the public highway, by reason of any bridge, or causeway giving way, or from any other casualty, or to remove any obstruction on account of snow, or to fix, or set up beacons, or stakes as a guide for travellers, the overseers of the division may do so out of the monies in their hands applicable io the roads, r : 1i hi 26 a(MentVji« m or direct statute labour for that purpose, and in case the overseer shall not have in his hands at the time, any such monies, or staliue labour at his command, Ire may direct any person in his division, liable to statute labour, to repair such breach, &c. and such over- seer shall keep an accoupt of the time, wliich he shall transnut to the clerk, to be laid before the commissioners, who may exempt sucb persons from performing any part of his statute labour the next year, aad give a certificate to that eflfect, which shall be taken and credited by the overseer ; and any person neglecting or re- fusing to work as aforesaid, shall be liable to the same penalties as before prescribed for neglecting, or refusing^to work, unless reasonable excuse can be shewn. Such labuor to be equally pro. portioned in the division. Sec. 75. Commissioners Incorporated. — The commissioners under this act to be as a corporation, to represent the whole inhabitants, and may sue, prosecute, or defend. Sec. 76. INSANE PERSONS. By 11 Gr. 4. c. 20. The clerk of the peace for the Home district is required to exhibit annually, a detailed account of the nion! expended for the support of insane destitute persons, to tiie grant. jury at the general quarter sessions, and thereupon it shall be law- ful for the chairman to issue his warrant fur the payment of the same, by the treasurer of the district, and the said court of quarier sessions may, by writ of subpoena, compel the attendance of wit- nesses to give evidence upon oath, respecting such insane and des- titute persutis ;•— the said act to continue in force two years. The above act is by the 3 W. 4. c. 46. continued for the further period of two years, and to the end of the next session of parliament. The provisions of the above acts are confined to the Home district, ' *' ' SCHOOLS. ^' By b JV. 4. c. 29. The sum of £5,650 is granted for the year 1835, in addition to the sums now appropriated, to be applied in the same manner, to be apportioned as follows : — to the Eastern district, £500; Johnstown district, X500 ; Bathurst district, £500^ Midland district, £550; Prince Edward district, £200; Newcastle district, £500; Home district, £750; Gore district, £600 ; Niagara district, £500 ; London district, £600 ; West- ern district, £350. Sec. 3. It shall not be lawful, during the year aforesaid, fur the board of education to pay any teacher of a common school the annual allowance, unless the trustees shall make it appear to the satisfaction of the board, that they have provided for his support in a sum, at least, equal to double the amount allot- ted by the board of education. Sec. 4. Board of education in each district may allow their clerks an additional salary of £5. ,n^nv: % case ihe overseer monies, or statute )n ill his division, ,c. and such over- > shall transmit to who may extimpt itatute labour the lich shall be taken neglect\ng or re- he same penalties 5*to work, unless to be equally pro. ioners under this le inhabitants, and the Home district )uut of the moni rsous, to the granv. pon it shall be law- he payment of the id court of quartet attendance of wit. ich insane and des- ;e two years. ued for the further ssion of parliament, othe Home district. •anted for the year d, to be applied in s : — to the Eastern Bathurst district, rd district, ^£200; 750 ; Gore district, trict, £600 ; West- lawful, during the ay any teacher of a ; trustees shall make they have provided le the amount allot- rd of education in nal salary of £5. :;:s:"- . coroners. :.„,„,. ;««. l> ( "»,ie 19^*6 If • f > i VF -■ ■ - • VT 'fK :i i'%'l-«« ^-4fl,^. , }fatM$ of tlu Coronert of the $everal Distnct$ in this Province, ituerUd in 5^4i;j . the last Commissions, dated the IQth day of March, 1835. EASTERN. Albert French, Alexander Wiley, James Sterling, John P. Crysler, William Bruce, Angus McPheison, John Graut. OTTAWA. William McFarlane, Anthony Swallowell, Alfred Chesser, Charles Treadwell, John Buchanan, William Smith, John Brady, Donald McDonald, William York. JOHNSTOWN. Joseph K. Hartwell, William J. Scott, Colin McDonell, Wlirnm Merrick, James Maitland, Robert Edmondson, Alexander Grant, James L Schofield, Solomon Henderson, Milow McCargar, Benjamin Tett, John Weaiherhead, William P. Loucks, William R. DeRinzie. BATHURST. Alexander J. Christie, John Mclntyre, Thomas Sproule, Thomas Read, Andrew Buchanan, James Morris, John Ritchie, ... John Hall, George H. Reade, James Drysdale, William Rogerson. MIDLAND. Samuel Shaw, John D. Gilbert, David L. Thorpe, Thomas Corbitt, Anthony Marshall, George U. Detler, John W. Ferguson, PRINCE EDWARD. Thomas Moore, John A. McPherson, Paul E. Washburn, John Dougall, Reuben Young. ■ NEWCASTLE. Benjamin Ewing, Thomas Harris, Thomas V. Tupper, John Gilchrist, David Brodie, Donald Campbell, Thomas Corbitt, Thomas J. G rover, William Lawson, Francis Heiuietson, Bichard D. Chatterton, Chtist'r. Knowlson, Jun HOME. Arad Sin;i!ley, Tiium.is G. Anderson, George Diiggaii, John Scott, J limes ('oilman, James G;irdiner, Henry Boyes, William Roe, David Bridgeford, Samuel Richardson, William Simpson i^ ; * GORE, r^ James Muirhead, ' '. David Beasley, * James Kirkpatrirk,**^ James Applebe, Edward U. Leonard, A. Proudfoot, Robert Ailing. '. ' i NIAGARA. Cyrenus Hall, Gilbert McMicking, Samuel Wood, William D. Miller, Edward Lee, Alpheus S. St. John, James W. Perkins, George Nelles, Zenos Fell, Joseph Wynn, LONDON, ''*' Jonathan Austin, «• David Bowman, George Moore, Elam Stinson, ... . Charles Dnnconibe, &. J. Stratford, Thomas Phillips, Hm Juun'S Hamilton, :■ J. C. W. Paly, Uniacke Ronayne, WESTERN. James Link-, William Hal!, William Anilirid<;e, Thoiir.is W. Roihwell, James B (by. P. P. Lacioix, *»>! I James Kevill. r^^. . I- I \H} s l^ntitu of Cotrotirr« v^T4i3!b5y7t0rfaV';'%f^' ^^^^^*'^- •«•..* .H^.p^ ^trot^ ,6n,».,., Thb court of the corooer is a court of recjrd, to enquiro when anj one dies in prison, or comes to a violent, or sudden death, by what manner he came to his end, and this he is only entitled to do super visum corporis^ (upon view of the body.) 4 Inst. 27l> 2 Hah^s p, C. 53, The coroner^s duty being partly judicial, it cannot be eie. cuted by deputy. Impey. O, C. 473. By stat. 4 Ed. 1. st. 2. called the statute de officio corojiatoru which enacts, ** that the coroner, upon imformation, shall go to the place where any' be slain, or suddenly dead, or wounded, and shall forthwith command four of the next towns, or five, or six, to appear be- Ibre him in such a place ; and when they are come, the coroner upon the oath of them, shall enquire if they know whore the person was first slain, whether it were in any house, field, &c. and who were there Likewise it is to be enquired, who were culpable either of the act or of the force, and who present, and of what age they be, (if ilioy can speak, and have discretion) and as many as shall be found culpable bv the inquest, shall be committed to gaol ; and such a? shall be found there, and be not culpable, shall be attached until the coming of the justices, and their names shall be written in the rolls. If any mnn bo slain suddenly, which is found in the fields, or in the woods, first it is to be seen whether he were slain in the same place or not, and if bo were brought there^ they shall do as much as they can to follow tlicii steps that brought him ; it shall be enquired also, if the dead person were known, and where he lay the night before. And if any be found culpable of the murder, the coroners shall go to his house and enquire what goods he hath, and what corn he hath in his grange ; and if he be a freeman, they shall enquiro how muc'i land he hath, and whnt it is worth yearly, and what crop he ' th upon tho ground. And they shall cause all the land, corn, an* goods to be valued, and dcliveicd to the townships, which shall bo .nswcrablo before the justices; and likewise of his freehold, how mu 'i it is worth yearly, and tho land shall remain in tho King's hands luilil the lords of the fee havo made fine for it. And these things bcin^;' enquired, the bodies shall bo buried." § 1. " In like manner it is to bo ciquired of them that be drowned, or suddenly slain, whether they were drowned, s'ain, or strangled, by the sign of the cord about their necks, or any other hurt found upon their bodies; and. if he were not slain, then ounht the coroner 1o attach tlir" finder and all other in the conipnny. A coroner also ought to ciKiuirH of treasure found, who were the finders, and who is sospucted tlicieof; and ttiat may be perceived where one liveil ri«itously, iiiiiPMing taverns, and hath done so of long timc,lieroii|)Of) he may be iittacbcd for tliissuv piciou by four, or six, or more pledges. Also all wounds ought to be viewed, the length, breadth and deepness, aod with wiiat weapons, and in what part of the body the w<>und in; and how many be culpable, and hovr many wounds there be, and who gave the wound: all wiiirli things must be enrolled )*i the roll of the coroners. Conccrninj muun of Coroner* gllf'"^ rJ?or! ,t"'-'.\' enquiro \rhen nnj en death, by what ititled to do super 271. 2 Hale's P. it cannot be exe- officio coronatoru on, shall go to the rounded, and shall >r six, to appear be- 1, the coroner upon the person was first who were there — either of the act or ley be, (if they can e found culpable bv h as shall be found the coming of the ills. If any man bo the woods, first it is 06 or not, and if lio ^ can to follow their , if the dead person And if any be found IS house and enquire s grange ; and if he he hath, and what it ground. And ihey dued, and delivered re the justices ; and early, and the land the fee have made the bodies shall bo that be drowned, or , or strangled, by the mt found upon tlieii ■oroner lo attach th" ilso ought to cnquirH is suspected tlicieof ; ,|y,ijaU!Miiig taverns, attached for this siis- wounds ought to be I wliat weapons, and lany be culpable, and wound: all which roncrs. Concerning horses, boats, carts, &c. whereby any are slain, they shall be deliver- ed unto the towns, as before is said. If any be suspected of the death of a man, being in danger of life, ho shall be taken and im> prisoned. In like manner hue-and-cry shall be levied on all murder- ers, burglaries, and for men slain, or in peril of death ; as is used iii Ew^lan^t ''"^ ^^^ ^'^^^' follow the hue and steps as near as can be; and he that doth not, and is convict, shall be attached to bo atoro justices cf the gaol." § 2. Of Suddettt Violent Deaths, tohich are all teithin the Corotwr*$ OfSM to enquire, and Inquisitions. - -- Sudden, violent deaths, are of these kinds: — l. JSy the visitation of God:— 2. By misfortune, \y\\QrQ no other had a hand in it; as if a man lall from a horse or cart: — 3. By his own hand, as felo de se: — 4, By the hand of another, where he is known, whether by muider, nian-slaughter, se defendendo, or per infortunium. 2 Hal. F. C. 62. Coroners are .. '♦ to obtrude themselves into private families, where {here is no pretence for supposing that the deceased died otherwise timr by a natural death. 11 /^ast. 231. 1. The dying suddenly is not to be understood of a fever, apoplexy, or other visitation of God, for then the coroner might be sent for in every case. Umfr. 208. If the inquisition find that he died by the visitation of God, there is no more to bo done, only the inquisition luouther with the examination, are to bo returned to the next gaol delivery, 2. If the inquest find the death per infortunium simply, as a fall, Ac. 'hen the coroner is to take examination, and return the same, with thf inquisition to the next gaol delivery, and to enquire of the deodand and the value, and in whose hands, and to sei^c and deliver tlio same 10 thelownship, to be answerable for the same to the King. 4 Ed. 1. 3. If the inquest find a man felo de se, who is one that puts an end to his own existence, or commits any unlawful malicious act, the conse- quence of which, is his own death : as, if attempting to kill another^ ho runs upon his antagonist's sword ; or shooting at another, the gun bursts and kills himself; they ought to find the s/^cc/n/ matter, and also what goods and chattels he had, of what value, and seize and de- liver the same to the township, to be answerable to the King, or his almoner, or the lord of the franchise, to whom they beluog, and shall bind over the first finder of the body to the next gaol delivery. 2 H. P. C. 62. 4. If the party be slain, and the felon is not known, they are to find iheir inquisition accordingly, and shall bind over the first finder of the body to the next gaol delivery, and return his examinations, together with his inquisitions. 2 //. P. C. 63. !j. But if the person was slain, and the party that did it was known, and the inquisition found him guilty of the death, or that he died by his hand, there wore those proceedings, viz : — The inquest were also to enquire of all that were present, aiding, and abetting ; they shall also eijquire of all accessories before the fact ; but they cannot enquire r- f. M ■J 1 ^j ,1 Is, <4- WxXixn of eoroncf 7 of accessories a/fer lAa /aefi If thoy find him guilty, as principal, nr accessory before tlie fact, tliey sliall enquire wlietlier Ae fied fur the same ; if tlie inquisition find that he fled, it is a forfeiture of his goods; but they cannot be seized before he be convicted of the felony. 1 /{, S. c. 3. 2 H. P. C. 63. If the persons that are found guilty by the inquest be taken, the coroner may and must commit them to the sheriiT, and he is to send thorn to the gaol ; but if they be not found, he is not to proceed to out- lawry^ but return his inquisition to the next gaol delivery, and the jus- tices of gaol delivery are to proceed against the offenders, if in gaol; if >iot, then to certify the inquisition into the King's Bench, and tlien process of out-lawry to go against them upon that inquisition. 4 Ed, 1. 3 //. 7. c. 1. 2 //. P. C. 64. It is clearly agreed tbit the inquest shall be taken on the view of the body; and that an inquest otherwise taken by the coroner is void. 2. H:,tc. P. C. c. 9. § 23. But when the body cannot be found, oris su putrefied that a view would be of no service, the coroner, withoiit II spe' i'll commission, cannot take the inquest ; but in sucli cases it shall be taken by justices of the peace, or other justices authorised, by testimony of witnesses. Vent. 352. JIaio. P. C. c. 9. § 25. It is an indictable offence to bury the body before, or without sending for the coroner. 1. Salk. 377. And a coroner mny, within a convenient time, take up a dead body out of the grave, in order to view it aiid hold an inquest. The coroner may inquire of accessories before the fact, but not accessories after tlie lact. Aloor, 20. PI. 95. Where there is no pretence for supposint^ tlint the deceased died otherwise tliaii by a natural death ; for instance, if he died of fever, apoplex", or other visitation vf God, an inquisition ought not to be held, Unifr. 208. The coroner ought also to inquire of the death of nil persons who die in prison, that it be known whether they die by violence or any unreasonable liar<^sIiipFj for if a prisoner, by the duress of the gaoler, come to an untimely He iih, it is murder in the gaoler. 3 Just. 52. 91. And this inquest up').i prisoiie'-s ought to consist of a party jury, that is, six of the prisoner y stabbing, poiso.i or any other way. 1 Ilnl. P. C. 411. If ho lose his memory by sickness, infirmity or accident, nnd kills himself, he is not/elo de se, neither can ho be said to commit murder upon himscli' or any other. It is Pot every melancholy or hypocondriacal disH'm- 1 ^^H i;': Huiirtt of eovoiur^ t Ity, as prlnctpal, of lier he fled for the leiture of his goods ; of the felony. 1 R. luest be taken, the ', and he is to send at to proceed to out- elivery, and the jus- )ffeuders, if in gaol ; g»s Bench, and tlien U inquisition. 4 Ed, taken on the r Jew of ' the coroner is void. lannot be found, or is the coroner, without but in such cases it «r justices authorised, C. c. 9. § 25. It is ir without sending for , within a convenient order to view it and accessories before the X PI 95. liat the deceased died if he died of fever, sition ought not to be nquire of the deftth of whether they die by prisoner, by the duress minder in the giioler. s ou'Tht to consist of a ny there be) and six of :12. 212. iippdiiranco of coiisla- to the next caol deli- liui.p. c:o2. V the cognizance ofn 1 ill tlie preceding part . 220. vviih the cxcep- • which is conmiittfil ws mentis, kills hiiii>ioll' P. C. 411. Ifholnso and kilb iiimself, he is t murder upon himsplt ivpocondriucal dislt'iu- per that denominates a man non compoa mentiB^ for there are few who commit this oifence but are under such infirmities, but it must be such HH alienation of mind that renders them to be madmen, or frantic, or destitute of the use of reason. A lunatic killing himself in the (it of lunacy is notfelo de se ; but if he kills himself in a lucid interval he is ^felode se. 1 Hal. P. C. 4l2. If a man voluntarily give himself tt mortal wound, and die within a year and a day of that wound, he is felo de ««, and he cannot purge the crime nor the forfeiture inflicted by the law, by his repenting what he had done. lb. 411. It must be imply voluntary and -■•' - - -•-^--- - • •" i • •<• I gangrene beginning: simply voluntary and with an iHtent to kill himself. If A. to prevent a gangrene beginning in his hand, doth, without advice, cut off his hand, by which he dies, he is not thereby /cfo de se; for though it was a vo- luntary act, yet it was not with an intent to kill himself, lb. 412. A flo de se shall be buried in the highway, with a stake driven through his body. 4 Bl. Com. 190. This barbarous custom has been repealed in England, by statute 4 G. 4. which does not however extend to this province. The forfeiture of /Jo de se is of goods and chattels only. 1 Hale, P. C. 413. Of Deodands. A deodand is where any man kills himself, or is by misfortune slain by a horse, cart, or any other thing that moveth to his death; then the thin^ which, is the cause of or moved to his death sludl be forfeited to the king. Lill. Pr. llcg. C07. No deodand is due when an infant under the age of discretion is killed by a fall from a carl, or horse, or the like, not being in motion. 1 Hale, 422. But if a horse, or ox, or other animal, of his own motion kill, as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands. Where a thing not in motion is tho occasion of death, that part only which is the immediate cause is forfeited ; as, if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a deodand; but wherever the thing is in motion, nut only that part which immediately gives the wound, (as the wheel which runs over the body) but all things which move with it, and help to make the wound more dangerous, as the cart and loading arc deodand. 1 Hato. P. C. «.26. •..,., Where the act of one Coroner shall he as effectual as if done by all. Wherever coroners are authorised to net as judges, as in the taking of an inquisition of death, the act of any onu of tliem who first pro- ceeds in the matter, is of the s;in)n force a? if all hud joined in it. ". IM. P. C. 56. But it is sai.!, that afto' such proceeding by any one of them, the act of any ntliei will be void. lb. 59. Also, it is cer- tain thai wlien coroners are enipowerod to act only ministerially, as in the execution of a process directed to them upon the default or inca- pacity of the sheriff, all their acts will be void, wherein they do not nil join. Staiinf P. C. y^. a. One coroner may execute the writ, •ns in tlio rase of an exigent ; but if there he aiore coroners than one h it ij. .1 rt i> mi f 9tiUr0 Of eoroiitr* for the county, the return must be iu the name of ail. 2 Hal. P. C. Jtj The taking of an inquisition canoot be dune by deputy. 2 Hal. P. q 58. 60. In the case of process to coroners upon any disability iu t||J sheriff, the sheriff is no longer considered its un officer uf tho court in ; -that suit ; and the coroners may do all such lawful acts, as the slierjn himself, might have done, and they may take tho poate comitatus. H^i 85. If the sheriff be sued, the writ is to be directed to the coroneui Impetf. 490. If there be above two coroners in a county, and a wrji Ibe directed to tho coroners, though one die, the others may execute tut if one only survive, he can neither execute nor return tho writ ii|j other be made. 2 Hal. P. C. 56. VVbore the sheriff and coroners larticular places and liberties, iiave been all chullenged, in all casct eisurs havoMiot been appointed, but venires liavo been directed tottie sheriff of the county at large, to summon a jury fro'm tho next adjacent visne ; and two elisors at least, ought to be nppointed. Beiidl, 23.^ Dy, 307. The samo challenges that may bo made to iho sheriff, nmy also be made to (he coroners; in which case, if all tho coroners be challongud, tiie venire may then be awarded to elisors^ who are alwavi chosen and appointed by the court, by rule, to return the jury. Of Pees that he may lawfully take. Hy ttat. West. 1. It is enacted,' ** that no coroner demand anr thing uf uny man to do his office, upon pain uf great forfeiture tothf King; which was made in affirmance oi' the common law." ;;>, Jnsi. 176. But by 3 H. 7. It is enacted, **that a coroner have for his fee upon every inquisition taken upon tho view of a body slain, Us. j^i of the goods and chattels of the slayer or murderer, if ho have any goods ; and if ho have no goods, of such amercements as shall fortune any township to be amerced for the escape of the murderer, &c." But coroners endeavouring to extend this statute to persons slain bj misadventure y it was enacted by 1 //. 8. c. 7. " that upon a lequot made to a coroucr to come and enquire, upon the view of any person slain, drowned, or otherwise Jead by misfortune, the said coroner | shall diligently do his office, without taking uny thing therefor, upon pain to every coroner that will not endeavor himself to do Ins uflice, (as aforesaid,) or that takcth any thin^ for doing his office upoit every I person dead by misadventure, for every time, 404'." To the intent, however, that coroners may be encouraged to oxecuiel their offico with diligence and integrity, it is enacted by slat. 2'). G. t "that for every inquisition not taken upon the view of a bo(jy dyiu' in a gaol or prison, which shall bu duly taken in England by am coroner, in any township or place, contributing to the rates dirccteil I to be levied by 12 G. 2. c. 29. ho shall have 20s. and for every mile which he or they shall be compelled to travel from the usual pluce of his or their abode, to take such inquisition, tho further sum of 9'^. over and above the said sum of 20a'. shall be paid to him or them, uu; of the monies arising from the rates before mentioned, by order of the | justices uf the peace, in their general or quarter session;) usscnibleil, coroner deniantl anr ihe common BitUr0 of Corotif r. 7 for the county, dbc, where such ioquisition shall have been taken, or tho BVSJor part of them, and which order the said justice;), or the major part of them, are authorised anddirecied to make, for which no fee or reward shall bo paid to the clerk of the peace, or any other oflicer. Under this act, a coroner can only charge for every mile from the place of his abode to take the inquest, and not fur those he travels in returning. R'V. Oxfords, Inst. 2. B. df ■4»<^' 203. And he is not entitled to separate allowances under tlio 25 G. 2. c. 26. when ho holds several inquests on the same day. R. v. Warwick. Inst. 5. B, if Cr. 430. •> And for every inquisition which shall be duly taken, upon the view of a body dying in any guol or prison in England, hy any coro- ner of a county, so much money, not exceeding the sum of 20s. shall be paid to him or them, as the justices of the peace, in their general or quarter sessions assembled, for the county, &c. or the major part of tbem, shall think fit to allow, to be paid in like manner by order of the justices, or the major part of them, out of the monies as aforesaid. 2.") O. 2." «• Provided, that over and above the recompense hereby limited and appointed for inquisitions taken as aforesaid, (lie coroner, who shall take an inquisition upon the view of the body slain, or murdered, shall also have the fee of 13s. 4d. pay:iblo by 3 //. 7. out of the goods and chattels of the slayer, or out of the amercement imposed upon the township, if the slayer and murderer escape." <» Provided also, that no coroner, to whom nny benefit is given by this act, shall, by color of his office, or upon any pretext whatsoever, take for his office doing, in case of the death of any person, an> foe or reward, other than the said fee of 13^. 4d. limited as aforesaid, by the said act, 3 //. 7. and other than the recompense hereby limited and appointed, upon pain of being guilty of extortion. 25 G, 2.'* Of discharging the Coroner, and for what misdemeanors punished. The coroner in this province holds his oflico during his Majesty's pleasure, and is therefore removable at any time upon just cause shewn. By stat. 3. //. 7. " If any coroner be remiss, and make not inquisi- tion upon the view of the body slain or murdered, he shall forfeit, for every default, 100s." And by 1 IJ. 8. It is enacted " that if any coroner shall not en- deavor himself to do his oHice upon any person dead by misadventure, he shall forfeit 40s." Also, by 3 H. 7. It is enacted " that ii'any coroner do not certify his inquisition, he shall forfeit lOOs." He is to return his inquisition at the next gaol delivery ; md because he did not, the court discharged him, and set a fine of <£ i )0. R. v. Ld. Buckhurst. Keh. 208. PL 31. By stat. 25. G. 2. " If any coroner, who is not appointed by virtue of an annual election, or nomuiation, or whose office of coroner is not annexed to any other office, shall be lawfully convicted oi extortion, or k2 %'r\ ^il zZ.A !':■:.{ r t.i t'if' y /• ahttf r0 of Coroner. wilful neglect of his duiy, or misdemeanor in his ofllco, it shall be lawful for tho court, beforo whom he shnll bo commiued, to adjudge, (hnt he shall bo amoved from his oflfico." This statute is only in furthorancc of tho powers which before ex« isted for their removal. By Stat. 1 li, ^. Justices of a isizc, and justices of peace wiihiii ihe county liavo power to inquire of, and punish the defauits of coroners. • Proceedings by the Coroner, When the corpner receives notice of a violent death, casualty, nr misadventure, which regularly ought to bo givog- from the peace ofTi- cer of the parish, place or township, where the body lies dead, he ii then to issue his precept, or warrant, to summon a jury to appear at a particular time and place named, to enquire when, how, and by what means the deceased came by his death ; which warrant is directed to the peace oflTioers of the parish, plaro, or precinct, whore the party lies dead. , ^ Form of the Warrant. Homo District, ) To the constables and peace ofliccrs of the township to Wit. of in the Homo district. By virtue of my office, these are in his Majesty's name, to charge and command you, that on sight hereof, you summon and warn twenty- four able and sufficient men of your township, personally to be and appear before me, ou — — — the — — — day of ■ at ■ uY-luck in the iurenoon of the same day, at the house of A. B. called ur known by tho name or sign of tho ■' situate in the said town* ship, then and there to do and execute all such things that shall be given them in charge, on behalf of our sovereign lord the King, touch* ing the death of R. F. and for so doing, this shall be your sufficient warran* : and that you also attend at the time and place above men- tioneri, to make a return of the names of the persons, whom you shall have s( summoned, and further, to do and execute such Dther matters a^ shall bu then and there enjoined you. And have you then there this warrant. Given under my hand and seal, this -^-^— day of 183—. G. IT. L.S. Coroner, If there be not sufficient jurors in the place, the coroner may sum- mon them from the adjoining township or parish. Impey^ 512. The coroner should furnish a sufficient number of blank summonses to the constable, for service by him upon the jurors, pursuant to the above warrant. Form of the Summons, Home District, ) To R. M. of tho township of in the Home to wit. ) district, yeoman. By virtue of a warrant, under tho hand and seal of G. H. gentle* man, one of his Majesty' coroners for the said districi, you are rs w^hich before ex- hereby summoned to be and nppcnr before biin tis n jurymnn, on tins , day of at — — — of tbo clock in ibo forenoon of «li" same day, at the house of known by the sign of tbo in the township of ^— — in the said district, tlinn and there to inqnii'c io bis Mujesty^s nailie, touching the dcutii of R. V. and further, lo do and execute such other matters and things as shall be then und iber«i given you in charge, and not to depart without leave. (Icrein fail not, at your peril. Dated the diiy ol 1S3 — . E. F. Constabk. On the day appointed, the coroner attends, and having received tlio return of the jurors, and precept, &.c. tlie first thing ho docs, is to di- rect the officer to open the court by procianialion, viz. by proclaim iii',' Photograiiiic Sciences Corporalion 23 WBT MAIN STRUT WnSTIR.N.Y. I4SM (71*) •73-4503 4^ i\ V \\ ^. ^ ^^% ^.V^ o^ 4^ *ir 10 'Butu» Of eoronn". When the charge is finished the coroner goes with the jury to 4ake a view, and examine the body of the deceased. As soon as th« view is talten it is usual for the coroner again to call them over, and add to his former charge some necessary observations he has made on view of the body ; and add, " that he shall now proceed to hear and take down the evidence respecting the fact, to which he must crave their particu- cular attenlion." Particular charges are not necessary but in particu- lar cases arising from the fact or in the course of the evidence, such as lunacy, felo de se^ deodand, flight, forfeiture, &c. The deodand requires no other f harge than of a value to be put upon what caused the death, and of whose property and in whose possession. As to the particular charge in case of a flight, which induces a forfeiture, where the party charged is not forthcoming, it may be necessary to add some< thing to the general charge, as thus : — ** Your charge will be further to inquire in what degree the party charged is guilty, whether of murder or manslaughther, or of a killing in his own defence ; if you find him guilty of murder or manslaughter, you are then to inquire what goods and chattels, lands or tenements he had at the time of the act committed or nt any time since ; if you find the fact to be of a justifiable homicide from inevitable necessity, or in defence of his own person, life, or property, or where a suspecidd person doth fly and resist the proper officer, and is from necessity slain because he could not be otherwise taken : this flight and resis> tance presumes a guilt, and will incur a forfeiture, and therefore you are to inquire whether in either of the instances the party fled for it; this is a presumptive confession of the charge, and you are tuen to inquire of his goods and chattels, but not lands or tenements, in the same manner as if you had found him guilty." The latter charge may be given after the evidence taken, so at to have a perfect verdict. If the inquiry be of the death of one man by another, and it be doubtful whether the wound be mortal or not, a surgeon should be present to examine and show the wound. After the general charge is given by the coroner, the officer then calls silence, and repeats after the coroner thus : — " If any one can give evidence on behalf of our sovereign lord the King when, how and by what means R. F. came to his death, let them come forth and they shall be heard." The witness appearing, the coroner takes down his name, place of abode and occupation, and then the officer tenders to him the follow- ing oath:— " The evidence you shall give to this inquest on behalf of our sovereign lord the King touching the death of R. F. shall be the truth, the whole truth, and nothing but the truth. So help you God." The evidence should be taken down in writing, and as nearly as possible in the words of the witness. The examinations should be entitled thus : — Home District, ) Informations of witnesses severally taken and ac- to wit. i knowledged on the behalf of our sovereign loiJ the King, touching the death of R. F., at the dwelling house of J. B., ^-'mf-^m.^.J^^^^'f^''^ 9utf efi( rs, and declares the majori(y into which (he minority sinks, and t rinding (which is to be given by the foreman) is from necess ly, taken and considered as the verdict of all. When the verdict is given, the coroner then draws up his inquisition in form, and at the foot affixes a seal for himself and each of the jurymen. The coroner and jurors then sign their names opposite the seals; to the coroner's name he adds "the office" thus, G. H. " coroner." The inquisition being thus completed, the coroner then addresses the jury as follows : — " Gentlemen, barken (n your verdict, as delivered by you, and as I have recorded it. You lind, dtc." (Here repeat the substance of the verdict.) mutiny of Curoner* 13 ner is to have an )nei' then addresses U it is a case tliat will come to the assizes, the coroner binds all proper persons over in a recognizance to appear and give evidence, with the following condition : — •• The condition of this recognizance is such, that if the abovo bounden J. R„ E. D. and G. B. do severally appear at the next ses- sion of general goal delivery, to be holden in and for the said Homo District, and then and there give evidence upon a bill of indictment to be then and there preferred to the grand jury against C. D. late of the township of — in said dislrlct, labourer, for the wilful murder of R. F. late of &c. And in case the said bill of indictment be found by the grand jury a true bill, then if they the said J. R., E. D. and G. B. do severally appear and give evidence to the jury that shall pass on the trial of the said C. D. upon the said indictment : and in case the said bill of indictment shall be returned by the grand jury aforesaid " not found," then if they the said J. R., E. D. and G. B. do severally appear at the said session of general gaol delivery, and then and there give evidence to the jury that shall pass on the trial of the said C. D. upon an inquisition taken before me one of his Majesty's coroner for the said Home District, on the view of the body of the said R. F. and not depart the court without leave, then this recogni- zance to bo void, otherwise to remain in full furce. Taken and acknowledged this — — day of — — before me, coroner. If one of the witnesses bo a married woman, and the husband not present to enter into a recognizance for her, she is not to be bound in any sura penal, but " on pain of imprisonment," thus : S. tho wife of J. S. of &.C., labourer, on pain of imprisonment, in case she shall make default in such condition ; if the husband be present he is to be bound for tho appearance of his wife : and if the witness happen to be an infant, (or minor under the age of twenty-one years^ the pa- rent or master should be bound in a recognizance for his appearance. Form of a RecognUt.mcc by Husband and Wife. Home District, ) Be it remembered that J. P. of the township of — — to wit. i in the county of ■ in the Home District, yeo- man, and £. P. his wife, severally acknowledged themselves to bo bound by recognizance to our sovereign lord the Kirg, as follows, that is to say, the said J. P. in the sum of £20 of lawful money of the province of Upper Canada, to be levied on his goods and chattels, lands and tenements, and the said E. P. his wife, on pain of imprison- ment in case default shall be made in the condition following : — The condition of this recognizance is such that if the said E. P. the wife of the said J. P. do and shall personally appear, &c. (as in the former recognizance.) The above form will also do for an infant and his parent or master. The officer of the court then makes proclamation thus, " You good men of this township, who have been impannelled und sworn of the jury to inquire for our sovcieign lord the King touching the death of R. F. and who have reiurued your verdict, may depart hence and take your ease, find save the King." li 14 HPiilff of Cormier. When the coroner returns his inquisition to the seuiooi, he first engrosses it on parchment, indented at the top, and in words at length and such return is to bo made under his hand and seal only with the name of his office. Umfrev, 312. The following forms of inquisitions, summonses, warrants, d&c. are transcribed from /mpey's O^ce o/ Coroner. Form of an Inquisition on a Lunatic. Home District, ) An inquisition indented, taken for our sovereign to wit. ) lord the King, at the township of in the county of in the Home district, the ' day of ———in the— —— year of the reign of our sovereign lord William the fourth, &c. before T. S. gentleman, one of the coronurs of our said lord the King, for the said district, on view of the body of R. F. then and there lying dead, upon the oath of A. B. Sec. (here insert the names of aU the jurors sworn,) good and lawful tnen of the said township, duly chosen, and who being then and there duly sworn and charged to in- quire for our said Icrd the King, when, where, how, and after what manner, the said R. F. came to his death, do, upon their oath, say, that the said R. F. not being of sound mind, memory and undoi standing, but lunatic and distracted, on the ■ day of ■ in the year aforesaid, at the township, and in the county, and district aforesaid, to wit, into the river Humber there, did cast and throw himself, by means of which said casting and throwing, he the said R. F. in the waters of the said river, was then and there suffocated and drowned; of which said sufTocation and drowning, he the said R. F. then and there instantly died ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. F. in manner and by the means aforesaid, not being of jouod mind, memory, and understanding, but lunatic and dis- tracted, did drown and liill himself. In witness whereof, as well the said coroner as the jurors aforesaid, have to this inquisition set their hands and seals, on the day and year, and at the place first above mentioned. G. H. Coroner^ L. S. A. B. L. S. CD. L. S. ->,».■. E. F. L. S. &c. !. ., / <; jr. . - ^^^<* ^^ "i *y Drowning, , , That the said R. F. not having the fear of God before his eyu, but being moved and seduced by the instigation of the devil, on . with force and arms, at the township aforesaid, and in the county and district aforesaid, in and upon himself, in the peace of God, and of our said lord the King, then and there being feloni- ously, wilfully, and of his malice aforethought, did make an assault, and that the said R. F. into a certain river or stream of water, commonly called at the township aforesaid, in the county and district aforesaid, did violently cast and throw himself, by Butit» of Cotonrr. 15 Mtsiooii he first in words at length, leal only with the . warrants, &c. are tic. \ for our sovereign of in the — in - day of — William the fourth, of our said lord the :. F. then and there irt the name$ of all >aid township, duly and charged to in- ow, and after what i their oath, say, that and undoi standing, ■ in the year id district aforesaid, d throw himself, by I said R. F. in the ited and drowned ; of I. F. then and there their oath aforesaid, means aforesaid, not but lunatic and dis- w hereof, as well the inquisition set their le place first above Coroner^ L. S. L. S. L. S. L. S. Jod before his eyes, ion of the devil, on p aforesaid, and in limself, in the peace id there being feloni- did make an assault, or stream of water, esaid, in the county throw himself, by meaol of which said casting and throwing, he the said R. F. in the waters of the said river, was then and there suffocated and drowned, of which taid suffocation and drowning, he the said R. F. then and there instanly died. And so the jurors aforesaid, upon thoir oath aforesaid, do say, that the said R. F. in manner and by the means aforesaid, feloniously, wilfully, and of his malice Aforethought, did kill and murder himself, against the peace of our saul^^i^d the King, his crown and dignity ; — and that the said R. F. at therim^ the said felony and murder, so as aforesaid done and committednratTno goods or chattels, lands or tenements, within the said district, or elseli'here, to the knowledge of the said jurors ;— (or that the said R. F. at the time of the doing and committing of the felony and murder aforesaid, had goods and chattels, contained in the inventory to this inquisition annexed, which remain in the custody of C. D. who claims the same.) In witness, &c. Upon an Accidental Death occasioned by a Cart. That W. C. late of the township aforesaid, iu the county and dis- trict aforesaid, carman, on — at the township aforesaid, in the county and district aforesaid, into a certain public street or highway, there called the King's high-way, being negligently driving a certain cart, drawn by one horse, and loaded with twelve barrels of flour ; it so happened, that the said A. P. being in the street and high-way aforesaid, was then and there accidentally, casually, and by misfortune, forced to the ground by the horse so drawing the said cart us aforesaid, and the said cart so loaded as aforesaid, was then and there, by the said horse violently md forcibly drawn to and against the said A. P. and the oflf wheel of iiesaid cart, so drawn and loaded as aforesaid, did then and there ac- cidentally, casually and by misfortune, violently go upon, and pass over the breast and body of the said A. P. by means whereof, the said A. P. from the weight and pressure of the said cart, so loaded and drawn as aforesaid, did then and there receive one mortal bruise in and upon his said breast and body, of which said mortal bruise, he the jaid A. P. then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. P. in manner and by the means aforesaid, accidentally, casually, and by misfortune, came to his death, and not otherwise ; and that the said horse, cart, and loading were the cause of the death of the said A. P. and that the said twelve bHrrels of flour are of the value of the said cart of the value of. and the said horse of the value of ■ amounting in the whole, to the sum of of lawful money of the province of Up- per Canada, and are the property and in the possession of D. E. of ■ yeoman, or of his assigns. In witness, <&c. If it be intended to impose a nominal (ine or deodand only, then say, " and that the said horse, cart, and loading are of the value of five shillings of lawful money, &c." (at hefort.) By a Fire. — That on — at, he. the ware-house of C. D. situate in the same township and county, casually took fire, nnd the said A. B. being then and tliere present, aiding and assisting 16 mutitu ot^womv^ m to extinguish llie said fire ; it so happened, that a piece of timber, by the force and violence of the said fire, then and there acciden- tally, casually, and by misfortune, fell from the top of the said ware-house, in and upon the head of him, the said A. B. by rea* son whereof, he the said A. B. then and there received a morlal fracture on the head of him, the said A. B. of which said mortal fracture, he the said A. B. from the said -— • day of in the year aforesaid, until the — — day of in the year aforesaid, there did languish, and languishing did live ; on which said -ii.. day of i in the' year aforesaid, at the township aforesaid, in the county and district aforesaid, he the said A. B. of the mortal fracture aforesaid, did die. And so the jurors aforesaid, &c. and that the said piece of timber was the occasion of the death of the said A. B. and is of no value : (or is of the value of, &;c.) and in the possession, &c. In witness, &c. . , By Drowning, — That the said A. B. on ^— — aforesaid, in a certain river, called ■ at the township, and in the county and district aforesaid, accidentally, casually, and by misfortune, was in the waters of the said river, then and there suffocated and drowned ; of which said sufibcation and drowning, he the said A. B. then and there instantly died. And so the jurors, &C. Natural Death. — That the said A. B. on and for a long lime before at, &£c. did labour and languish under a grievous dis- ease of body, to wit, an asthma ; and that on the said i day of II in the year aforesaid, at, &c. she the said A. B. departed this life, by the visitation of God, in a natural way, to wit, of the disease and distemper aforesaid, and not by any hurt or injury received from any person, to the knowledge of the said jurors.— In witness, &c. Found Dead. — That the said A. B. on, &c. at, &c. in a cer- tain brick-field, in the possession of one C. D. was found dead.— That he the said A. B. for some time before, had been very ail- ing and infirm, and not able to vork: that he had no marks of violence appearing on his body, and departed this ilfe by the visitation of God, in a natural way, to wit, of his said ailment and infirmity, and not by any violent means whatsoever, to the knowledge of the said jurors. In witness, &c. Stranger found Dead. — That the said man, unknown, on, &:c. at, &c. to wjt, ill a certain wood, there called the long wood, was found dead. That the said man, unknown, had no marks of vio- lence appearing on his body ; but how, or by what means he came to his death, no evidence thereof, doth appear to the said jurors. In witness, he. By Excessive Drinking. — That the said A. B. on, &tc. at, Sec. departed this life by excessive drinking of ardent spirits, and not Bntitu of eoronrr. 17 from any hurt, injury or violence done or committed by any per- son or persons whatsoever, to the knowledge of the said jurors.; In witness, &c. / Inclemency of the Weather, ^Th^i the said man, unknown, nas found dead in a certain lane, situated in the said township, commonly called ^ that the said man, unknown, had no marks of violence appearing on his body, but died through want, and' the inclemency of the weather, and by no violent ways or means whatsoever, to the knowledge of the said jurors. In witness, &cc. Death in Prison* — That the said A. 13. being a prisoner for debt in the gaol of at, &:c. in the gaol aforesaid, departed this life by the visitation of God, in a natural way, O wit, of a fever, and not otherwise. In witness, he. Falling out of a 5oa^— That the said C. D. on, &ic. being in I a certain boat, widi a certain sail and oars, the property of l.im, the I said C. D. at, &£c. it so happened, that by the violence of the wind I and waves, the said boat was then and there accidentally, casual- ly, and by misfortune, upset, by means whereof, the said C D. was then and there accidentally, casually, and by misfortune, cast and thrown into the waters of the said river, and in the waters of the said river, was then and there suffocated and drowned, of which {said suffocation and drowning, he the said C. D. then and there idied. And so the jururs, &£c. and that the said bc.it, and the sail [and oars thereof, did occasion the death of the said C. D. and are [of the value of 10:?. and in the possession of or his assigns. |lt) witness, &c. Murder. — That C. D. late of, ^c. labourer, not having the Ifear of God before his eyes, but moved and seduced by the insti- Igationofthe devil, on, ^c. with ftu'ce and arms, at, ^c. in and lupon the said A. B. in the peace of God, and of our said lord the iKing, then and there being feloniously, [wilfully, and of his malice laforethought,] did make an assault, and thai the said C. D. wich a certain iron poker of the value of Is, which the said C. D. then land there had and held in both his hands, him the said A.' IB. in and npon the head of him the said A. U. then and jthere, divers times, feloniously, [wilfully, and of his malice afurc- [thought,] did strike and beat, then and there giving unto him, [the said A. B. in and upon the back part of the head of him, the Isaid A. B. with the iron poker aforesaid, one mortal fracture of jlhe length of two inches, of which said mortal f'acturc, he the said I. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, iliat the said C. D. him, the \M A. B. in manner, and bv the means aforesaid, feloniouslv, [wilfully, and of his malice aforethought,] did kill and murder, against the peace of our lord the King, his crown and dijyiiity, and that the said C. D. after the doing and commiiting of the n 9utu» otcov«ntr. ii I said felony and murder aforeiaid, withdrew and fled for the laue and that neither at the time of the doing and committing thereof nor at any time since, he the said C. D. had any goods or chattel/ lands or tenements within the said district or elsewhere, to (b^ knowledge of the said jurors. In witness, &fc, Man-tlaughierf-^The form is precisely the same, eicept, thit the words ** wilfully and of his malice aforethought," are to be left out, and the words " feloniously did kill and slay," subititm, ed for " kill and murder," and the word "manslaughter," for *' murder," in another part.— See the parts marked with braclieli, 8e Deftndendo, That on the —— * day of ■ in the year aforesaid, at the town. ship aforesaid, in the district aforesaid, the said A. B. being in i certain common drinking room belonging to a public house there situate, known by the name or sign of in which said comroon drinking room one C. D. late of the township aforesaid, in the district aforesaid, labourer, and divers other persons was and were then and there present ; and that the said A. B. without any cause or provocation whatsoever given by the said C. D. did then and there menace and threaten the said C. D. to turn him the said C, D. out of the said common drinking room, and for that purpose did then and there lay hold of the person of him the said C. D, and on him the said C. D. in the peace of God and of our said lord the king then and there being, violently did make an assault, and him the said C. D. without any cause or provocation whatso- ever did then and there beat, abuse and evilly entreat., whereupon the said C. D. for tlie preservation and safety of his person and of inevitable necessity, did then and there with the hands of him the said C. D. defend himself against such the violent assault of him the said A. B. as it was lawful fur him to do ; and the said A. B. did then and there receive, against the will of him the said G. D,, by the falls and blows which he the said A. B. then and there sn^ tained by him the said C. D*s. so defending himself as aforesaid, divers mortal bruises, in and upon the head, back and loins orhim the said A. B. of which said mortal bruises he the said A. B.from the said — — . day of in the year aforesaid, until the — day of the same month in the same year, at the township aforesaid, in the county and district aforesaid, did languish &c. \asinafoi- tner precedent] ; and,so the jurors aforesaid, upon their oath a^or^ said, do say that the said C. D., him the said A. B. in the defence of himself, the said C. D. in manner and by the means aforesaid, did kill and slay : but what goods or chattels the said C. D. had at the time of the doing and committing the said manslaughter in his own defence as aforesaid, the said jurors know not. In witnesi iv ,i»j.ri 3itttir» Of €0vnntt. Id Bjf drouming a Baitard.-~Thnt A. B. late of Sic.— linglc- womaD, on &c. ■'■ being then and there big with a female child, afterwards to wit, on the same day and year, at the township aforesaid, in the county and district aforesaid, the said female child, alone and secretly from her body, by the providence of God, did bring forth alive, which said female child by the laws of this province was a bastard ; and that the said A. J3. not having the fear of God &£C. fas before] afterwards to wit, on the same day and year aforesaid, with force and arms, at the township aforesaid, in the county and district aforesaid, in and upon the said new-born female <:i>>l^ so alive, and in the peace of God and uf our said lord the king then and there being, feloniously, wilfully and of her malice aforethough, did make an assault, and that the said A. B. her the said new-born female child with both her hands, in a cer- tain linen cloth of no value, then and there feloniously, wilfully and of her malice aforethought, did wrap up and fold, by meana iof which said wrapping up and folding of her the said new-born female bastard child, in the linen cloth aforesaid, she the said new bom female child was then and there suffocated and smothered, of which said suffocation and smothering she the said new-born fe- male child then and there instantly died; and so the jurors afore- said, upon their oath aforesaid, do say tiiat the said A. B. her the said new-born female bastard child, in manner and by the means jaforesaid, feloniously, wilfully and of her malice aforethought, did and murder, against the peace of our lord the king his crown jand dignity, [flight, forfeiture, — as before]. In witness Uc. By throwing down n Privy. — And that the said A. B. him the [said new-born male child, did then and there take into both her |hands,and him the said new-born male child into a certain privy, lor necessary house, there situate, then and there feloniously, wil- fully and of her malice aforethought, did violently cast and throw down, by means whereof, he the said new-born male child, in the toil or filth then and there contained in the said privy or necessary house, was then and there suffocated and smothered, of which said jiuffocation and smothering he the said new-born male child then and there instantly died ; and so the jurors, Uk.. [as before] [flight, [forfeiture — as before]. In witness &c. Against Aiders and Abettors^ in Murder or Manslaughter.— Lnd the jurors aforesaid, upon their oath nforesiaid, do fuiiher say lihat S. W. late of &tc. labourer, and G. W. late of the same place, labourer, at the time of (he doing and committing of the felony and murder, (or felony and manslaughter) aforesaid, were Vesent, aiding, abetting, assisting, comforting and maintain- ing the said C. D. to kill and murder, (or kill and slay) the said \. B. in manner aforesaid ; and so the jurors aforesaid, upon I'll 20 9tttf e0 of Cdtonet. on aiiil their oath oforeiaid, do my that the said C. D. and E. F. him the said A. B. in manner and by the means aforesaid^ feloniously, wi|. fully and of their malice aforethought, did kill and murder, (and in cases of manslaughter say^ feloniously did kill and slay )t against the peace he, (conclude with flight and forfeiture J. In witness kv, Form of the Warrant to Summon a Jury. To the con8tabl(>s of the township of— in the district, aDd others his Majesty*s oOicers of the peace in and for the said • district. _ District, > By virtue of my office, these are in his Majestyj to wit. 5 name to charge and command you, thnt ( sight hereof you summon and warn tweniy-four able and sufliciei men of your township, personally to be and appear before me, on -— the day of at — — o^clock in the forenoon, at (he house of A. B. called or known by the name or sign of the — , situate at — — in the said township, then and there to do and ei ecute all such things that shall be given them in charge on beha of our Sovereign Lord the King's Majesty, touching the dcaih R. F., and for so doing this shall be your sufficient warrant that you also attend at the time and place above mentioned, to make a return of the names of the persons whom you have summoned, and further to do and execute such other matters ai shall be then and there enjoined you, and have you then there tliii warrant. Given under my hand and seal, this ■ day of — 183 . . G. H. Coroner. N. B. — ^The Coroner should furnish a suificicnt number of printed or written m monsos to the constable for service on the Jurors. Form of the Constables Summons, — — District, > By virtue of a warrant under the hand and sealo to wit. ) G. H. gentleman, one of his Majesty's coronon for this district, you are hereby summoned personally to be and appear before him as a juryman, on the—— day of - - at' of the clock in the forenoon, precisely, at the house of knotts by the sign of the in the township of in the said flisirici, then and there to inquire in his Majesty's behalf, touching lit death of R. F., and further to do and execute such other mal and things as sh;\ll be then and there given you in charge, d not to depart without leave. Herein fail not at your peril. Lh\ii the ■' day of in the year of our Lord 1S3 ■' . Const al'h, . D. and E. F. him the resnid, feloniously, wil. kill and murder, (uU l1cUland8lay),agms\ ''eilurcj. In witness &ic. ion a Jury, in the district, ami ace in and for the said liese are in his Mnjesiy: command you, that on I y-four able and sufTicient id appear before me, on ;k in the forenoon, atttit ame or sign of the • — I I and there to do and «. ihem in charge on behali ly, touching the Whereas 1, with my inquest, the rtay and year to wit. S hereunder written, have taken a view of the body of J. D. who not being of sound mind, memory and under- standing* but lunatic and distracted, shot himself, [or agreeably to iht finding ofthejuryj who now lies dead in your township, and have proceeded therem according to law. These are therefore 10 certify that you may lawfully permit the body of the said J. D. 10 be buried : and for so doing this shall be your warrant. Given under my hand and seal the — — day of Coroner* Warrant to Bury a felo de ac, after Inquisition found. To the churchwardens and constables of the township of—— in the district of .1—- District, } Whereas by an inquisition taken before me, one to wit. S of his Majesty's coroner's for the said district, tliig . day of in the - year of the reign of his pre- sent Majesty, King William the Fourth, at the township of in (be said district, on view of the body of J. D. then and there lying dead, the jurors in the said inquisition named, have found that the said J. D. felloniously, wilfully and of his malice aforethought killed and murdered himself, [as the finding may he\ these arc therefore, by virtue of my office, to will and require you forihwitli to cause the body of the said J. D. to be buried according to law : and for your so doing this is your warrant* Given under my hand and seal this day of G. U. Coroner. N. B. The last form of warrant should not be directf d to the minister. The Return thereto. By virtue of the within warrant to us directed, we have caused the body within named to be buried according to law. CD) f' F* V Churchwardens, h D,' Cmstahlc. '" " ' Warrant to Bury without a View where no effectual Inquest can be taken. I To the ministers and churchwardens in the towuship of in the ■■ district. I District, > Whereas I am credibly informed that on the to wit. i day of — the body of a new born male Si! i m m^tun of eavotirr* child was found dead in a coffin, in the churchyard of the laid township, and that there is not any evidence to be found to roalie nppear to a jury either by what means the said- male child was there laid, or who was the mother thereof, or how it came to his death, nor are there any marks of violence appearing on its body, These are therefore to certify that in ease of the district charge yon may permit the body of the said new born male child to be buried : and for so doing this is your warrant. Given under my hand and seal this day of J. H. Coroner, Another form of Warrant to Bury without a View. . in To the minister and churchwardens of the township of — district. ,. I District, ) Whereas I am credibly informed, that on the to wit. 5 .1 day of instant, A. B. died sud- denly in the street, to wit, [name the street'] in the township of in the said district, as supposed by a fit of an apoplexy or other sudden visitation of God, and that he came not to his death by any violent means or manner whrtsoever. These are there- fore to certify that in ease of the district charge you may permit the body of the said A. B. to be buried : and for so doing this shall be your warrant. Given under my hand and seal this , day of J. H. Coroner. Warrant to Bury without aView, when the Body was found Drowned, To the minister and churchwardens of the township of - in the district. . I. ■ District, ) Whereas I am credibly informed that nn the to wit. y — ~.— day of — — . the body of a man itti' known was taken up dead, and floating in the river _- i_ in the township of. in the said district, and that no marks of violence do appear on the body of the said man unknown ; and whereas there is no evidence to make appear to a jury how or by what means the said man unknown came to his death. These are therefore to certify that in ease of the district charge you may permit the body of the said man unknown to be buried : and for 80 doing this is your warrant. Given under my hand and seal this day of J. H. Coroner. Warrant to take up a Body Interred, To the minister and church-wardens of the township of i the district. — District, ) Whereas, complaint hath been made unto nie, to wit. ) one of his Majesty's coroners for the said dis- tv. lBulic0 oc^otdntr* m hurchyard of the laid :e to be found to make le said- male child wai or how it came to hU appearing on its body, I of the district charge born male child to be ant. Given under my J. H. Coroner. without a View. le township of in informed, that on tlie istant, A. B. died sud- eet] in the township of a fit of an apoplexy or e came not to his death ver. These are there- charge you may pertnii : and for so doing this iiand and seal this J. H. Coroner. fody was found Drowntl ^e township of in informed that on the the body of a man uri' n the river — — in the hat no marks of violence unknown ; and whereas a jury how or by what his death. These are istrict charge you may n to be buried : and for | nder my hand and sei J. H. Coroner. If * , , ■ .1. .V ■ . t Interred. he township of ■ ith been made unto ine,| coroners for the said dis- trictt on the — — — day of (that the body of one) G. R. was privately and secretly buried in your township, and that the said 0. K* died not of a natural, but violent death : and whereas, no notice of the violent death of the said G. R. hath been given to any of his Majesty's coroners for the said district, whereby, on bis Majesty's behalf, an inquisition might have been taken on view of the body of the said G. R. before his interment, as by law is required. These are therefore, by virtue of my office, in his Majesty's name, to charge and command you, that you forthwith cause the body of the said G. R. to be taken up and safely con- veyed to in the said township, that I, with my inquest, may have a view thereof, and proceed therein according to law. — Hereof fail not, as you will answer the contrary at your peril. — Given under my hand and seal, the _ day of J. H. Corontr. if' . v'^^ ■' '' " ' ' '' ' '-'' .: ?. Warrant to Apprehend a Person for Murder. To the constables of the township of.- in the district, and to all others, his Majesty's peace officers in the said dis- trict. _ District, 7 Whereas, by an inquisition taken before me to wit. y one of his Majesty's coroners for the said dis- trict, this day of at in the said district, on view of the body of G. R. then and there lying dead, one C. D. late of — »- in the said district, labourer, stands charged with the wilful murder of the said G. R. these are therefore, by virtue of my office, in his Majesty's name, to charge and command you, and every of you, that you some or one of you, without delay, do apprehend and bring before me m the said coroner, or one of his Majesty's justices of the peace of the said district, the body of the said C* D. of whom you shall have notice, that he may be dealt with according to law. And for your so doing, this is your warrant. Given under my hand and seal, this _- _ day of G. H., Coroner, Commitment for Murder, ^ji^'ii To the constables of the township of in the Home district, and other his Majesty's officers of the peace for the said district, and to the keeper of his Majesty's gaol, at . in the said district. — — District, > Whereas, by an inquisition taken before itie» one to wit. 5 ^^ his Majesty's coroners for the said district, the day and year hereunder meotioned, on view of ih^ body of R. *" 4 24 39tttf e0 of Coroner* L. lying dead in tKe Wd tdwhship of » said, J. K. late of the townsliipof in the district afore- ..1^ in the said district, la- bourer, stands charged with the wilful murder of the said R. L. These are therefore, by virtue of my office in his Majesty's name, to charge and command you, the said constables and others afore- said, or any of you, forthwith safely to convey the body of the said J. K. to his Majesty's gaol at -~— aforesaid, and safely to deliver him to the keeper of the said gaol ; and these are likewise by virtue of my said office, in his Majesty's name, to will and re- quire you, the said keeper, to receive the body of the i;aid J. K. into your custody, and him safely to keep in the said gaol, until he shall be thence discharged by due course of law. And for so doing* this is your warrant. Given under my hand and seal the — day of— J. H. Coroner. Summona to a Witnes$. To A. P. of the the township of' in the district, yeoman. ■ District, ) Whereas I am credibly informed that you can to wit. > give evidence on behalf of your sovereign lord the King, touching the death of A. P. now lying dead in the township of ■ in the said district. These are therefore, by virtue of my office, in his Majesty's name to diarge and command you personally to be and appear before me, at the dwelling-house of J. R. known by the sign of _ situate at in the said township, at , o*clock in the forenoon, on the day of — i instant, then and there to give evidence and be examined on his Majesty's behalf before me and my inquest touching the premises : herein fail not, as you will answer the contrary at your peril* Given under my hand seal this .—...- day of J. H. Coroner. iia.ti;"sU '* ^•^' )5,'f>:4(5:>J';:^<.'- n;^;-- Warrant for Contempt agAintt a Witness for not appearing to givt Evidence, To the constables of the township of in the district. and to all other his Majesty's officers of the peace in and for the same district. _ District, ) Whereas I have received credible information to wit. 5 th&t ^* ^* of the township of in the said district, surgeon, can give evidence on behalf of our sovereign lord the King touching the death of C. D. now lying dead in the said township ; and whereas the said A. P. (having been duly •ummoned to appear and give evidence before me and my in- quest touching the premises, at the tioM and place in the said hx> i.<; <(!>4«/ Whereas I heretofore issued my summons under my to wit. ) hand, directed to A. P. of &z.c., surgeon, requiring his personal appearance before me, then and now one of his Ma- jester's coroners for the said district, at the time and place therein meutioned, to give evidence and be examined on his Majesty's behalf touching and concerning the death of C. D. then and there lying dead, of the personal service of which said summons oath hath been duly made before we ; and whereas the said A. P. . having neglected and refused to appear pursuant to the contents of the said summons, I thereupon afterwards issued my warrant, under my hand and seal, in order that the said A. P. by virtue thereof might be apprehended and brought before me to answer the premises. And whereas the said A. P. in pursuance thereof hath been apprehended and brought before me, now duly sitting by virtue of my office, and hath been duly required to give evi- dence and be examined before me and my inquest on his said Majesty's behalf, touching the death of the said C. D. yet the said A. P. notwithstanding, hath absolutely and wilfully refused, and still doth wilfully and absolutely refuse to give evidence and be examined touching the premises, or to give sufficient reason for his refusal, in wilful and open violation and delay of justice : these are therefore, by virtue of my office, in his Majesty's name to charge and command you, or any one of you, the said consta- bles and officers of the peace in and for the said township and district, forthwith to convey the body of the said A. P. to the gaol of the said district, at the city of Toronto, and him safely to deliver to the keeper of said gaol ; and these are likewise, by vir- tue of my said office, in hi$ Majesty's name to will and require vr ''trstmiv^^Himimt:^. '■jjnTr u 26 39tttf f Of CoroneiT. you the said keeper to receive the body of the said A. P. into your custody, and him safely to keep until he shall consent to give his evidence and be examined before me and my inquest, on his Majesty's behalf, touching the death of the said C. D. or until he shall be from thence otherwise discharged by due course of law: and for so doing this is your warrant. Given under my iiand and seal the — _ day of _— J« H. Coroner, '*"> ' Cdmmitment o/a Witness for refusing to sign his Information, To the constables of the township of — — in the — — district, and others his Majesty's officers of the peace in and for the said district, and also to the keeper of the gaol of the said district. -^ — ^— — — — > Whereas A. B. of — — surgeon, is a material to wit. 5 witness on behalf of our sovereign lord the King, against J. P. late of the township of — — • in the district aforesaid, labourer, now charged before me one of his Majestyi coroners for the said district and my inquest, with the wilful murder of C. D. there now lying dead ; and whereas the said A. B. at this time of my Inquiry, on view of the body of the said C. D. how and by what means he the said C. D. came by his death, hath personally appeared before me and my said inquest, and on his Ma- jesty's behalf hath given evidence and information on oath touching the premises, which said information having by me been reduced into writing, and the contents thereof by me, in the presence of the said inquest, openly and truly read to him the said A. B. who doth acknowledge the same to be true, and that the same doth contain the full substance and effect of the evidence by him given before me to my said inquest, and the sr.id A. B. having by me been requested and desired to sign and set his hand^to his said testimony and information, and to acknowledge the same as by law is required, yet, notwithstanding, the said A. B. doth wilfully and absolutely refuse so to do, in open defiance of law, and to the greathindranceof public justice. These are therefore, by virtue of my cluce, in his Majesty's name to charge and command you, or one of you, the said constables and others his Majesty's offi* cers of the peace in and for the said district, forthwith to convey the body of the said A. B. to the gaol of the said district, at — « in the said district, and him safely to deliver to the keeper of the Mid gaol ; and these are likewise, by virtue of my said office, in his Majesty's name to will and require you the said keeper to receive the body of the said A. B. into your custody, and him safely to keep in prison until he shall duly sign and acknowledge his said informRlM>n> or aball be from thence otherwise discharged by due Utitiri^t Of eoronet. 27 Given J, H. Caroner. n his Information. course of law : and for so doing this is your warrant uader my hand and seal this — ~ day of —■*■*■ J. H. Coroner, ^{Ht ^'iKtJ.Jtl ■%!.• I?'i5r*-M ijKUM Commitment of a Witness^for refusing to enter into Recognizance t» appear and give Evidence, To the constables of the township of — in the — — district,, and Cihers his Majesty's officers of the peace in and for the same district, and also to the keeper of the gaol of the laid district. ^ ' ,— . — > Whereas upon an inquisition this day taken before to wit. 3 me, one of his Majesty's coroners for the district aforesaid, at -— — in the said district, on view of the body of C. D. then and there lying dead, one J. U. late of the township afore- said, in the district aforesaid labourer, was by my inquest then- and there sitting, found guilty of the wilful murder of the said C. D. ; and whereas one U. P. of the township and district aforesaid, yeoman, was then and there examined and gave information in writing before me and my inquest touching the premises, and which said information he the said U. P. then and there before me and my inquest duly signed and acknowledged, and by which said information it appears that the said U. P. is a material witness on bis Majesty's behalf, against the said J. U. now in cus- tody, and charged by my inquest with the said murder, and the said U. P. having wilfully and absolutely refused to enter into the usual recognizance for his personal appearance at the next general gaol delivery, to be holden in and for the — — • district aforesaid, and then and there to give evidence on his Majesty's behalf against the said J. U. to the great hindrance and delay of justice. These are therefore, by virtue of my office, in his Ma- jesty's name to charge and command you, or one of yon, the said constables and others his Majesty's officers of the peace in and for the said district, forthwith to convey the body of the said U. P. to the gaol of the said district, at in the said district, and bim safely to deliver to the keeper of the said gaol there ; and these are likewise by virtue of my said office in his Majesty's nam6 to will and require you the said keeper to receive the body of the said A. B. into your custod}', and him safely to keep in prison there uqtil he shall enter into such recognizance before roe, or before one of his Majesty's justices of the peace for the said dis- trict, for the purposes aforesaid, or in default thereof, until he shall be from thence otherwise discharged by due course of law : and for so doing this is your warrant. Given under my hand aud seal this day of—— J, H. CoroMr,\ '!■ ';tj "v^ 1 .\>Jlil ^utitu of eoronrir« Jleeognizance to Proutute and give Evidencct ' 4< — -— District, > Be It remembered that J. R. of kc. yeoman, and to wit. \ £. D. of the same place, labourer, do severally acknowledge to owe to oi^r sovereign lord the King the sum of .pounds each, of lawful money of Upper Canada, to be levied on their several goods and chattels, lands and tenements, by way of recognizance to his Majesty's use, in case default shall happea to be made in the condition hereunder written. The condition of this recognizance is such, that if the above bounden J. R. and.E. D. do severally personally appear at the next general gaol delivery, to be holden in and for the dis- trict, and the said J. R. shall then and there prefer, or cause to be preferred to the grand jury, a bill of indictment against C. D. late of labourer, and now in custody for the wilful murder of A. B. late of &c., and that the said J. R. and E. D. do then and there severally personally appear to give evidence upon such bill of indictment to the said grand jury, and in case the said bill of indictment be found by the grand jury a true bill, that then the said J. R. and E. D. do severally personally appear at the said general gaol delivery, and the said J. R. shall then and there pro- secute the said C. D. on such indictment, and the said J. R. and E. D. do then and there severally give evidence to the jury that shall pass on the tritil of the said C. D. touching the premises, and in case the said bill of indictment shall be returned not found, that then they do severally personally appear at the said general gaol delivery, and then and there prosecute and give evidence to the jury that shall pass on the trial of the said C. D. upon an inquisition taken before me, one of his Majesty's coroners for the said district, on view of the body of the said A. B. and not depart the court without leave, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged this — — day of before me r^^;-- *- -^ 3,U,Corowr. ;«- ■ ■ • '^If • wife be required to give evidence, and her husband be not present to enter into recognizance, the wife shoald not be bound in any penalty or sum of money, but on pain of imprisonment thus >— ** S. the wife of J. S. of &z,c., labourer, acknowledges her- self to be bound to our sovereign lord the King on pain of impri- sonment, in case she shall make default in the following condition." And in making out the recognizance insert her name in such con- dition. But if tl:e husband be present he should be bound for the appearance of his wife. So if the witness happen to be an appren- tice, or one under the age of iwenly-onc years, in law termed an infant, the master or the parent should be bound for the appear- ance of the party according to the following precedent : — EvidmcCi ■'■asi-.All. of kc. yeoman, and iboiirer, do severally the King the sum of Canada, to be levied i tenements, by way iefault shall bappeu ;h, that if the above )n ally appear at the nd for the dig- } prefer, or cause to itment against C. D. the wilful murder of d E. D. do then and dence upon such bill case the said bill of le bill, that then the y appear at the said 11 then and there pro- d the said J. R. and ence to the jury that uching the premises, e returned not found, ' at the said general e and give evidence he said C. D. upon ajesty's coroners for if the said A. B. and 5 recognizance to be en and acknowledged J. H. Cpromu i her husband be not loald not be bound ain of imprisonment acknowledges her- ng on pain of impri- bllowing condition." er name in such con- 3uld be bound for the pen to be an appren- irs, in law termed an ound for the appear- precedent :— mixim immtt^xitK. mW^ K(COgni*(Mee by Husband for Wi/e*t amMoranee, and by Master ^ 4j^c,for the appearance of an Apprentice, ^c* J^l^lstrict, ) J. P. of the township of in the said district, i to wit. 3 black-smith ; T. P. of the same place, vic- tualier; J* R* of the same place, white-smith, the husband of S. H. • J. B. of the same place, shop-keeper, the mainpernor of J. J. his apprentice, an infant ; J. S. of the same place, yeoman» the mainpernor of G. S. his son, an infant, do severally acknowledge to owe to our sovereign lord the King the sura of pounds, of lawful money of Upper Canada, to be levied on their goods and chattels, lands and tenements; by way of recognizance to his M^ j^sty's use, in case default shall be made in the condition follow- ing. And S. the wife of J. P. of the same place, labourer, on pain of imprisonment, in case she shall make default in such condition. ,, ^^, The condition of this recognizance is such, that if the above bounden J. P.,T. R., S. R. the wife of the said J. R., J. J.,G. S. and S. P. do severally personally appear at the next general gaol delivery to be holden in and for the — >— district, and there give evidence on a bill of indictment to be preferred against W. T. now at large for the wilful murder of S. his wife, and in case the said bill of indictment shall be returned by the grand jury a true bill, then that they do severally personally appear at the session of general gaol delivery for the said district next after the appre- hending or surrender of the said W. T. and then and there seve- rally give evidence to the jury that shall pass on the trial of the said W. T. touching the premises, and in case the said bill of in- dictment shall be returned by the grand jury not found, that then they do severally personally appear at such session of general gaol delivery to be then and there holden for the said district, and then and there give evidence to the jury that shall pass upon the trial of the said W. T. upon an inquisition taken before me, one of his Majesty*s coroners for the said district, on view of the body of the said S. T. and not depart the court without leave, th^n this recognizance to be void, otherwise to be and remain in forc;t!»-r Taken and acknowledged this day of >^^ r'«i§t.->!'*'Ot'T--i _:•!>, -i'.fiii!' •'..■. - Q " ., n ->!' J. H. Coroner. r.{t Coromr'M Certificate of Jurors in order for Bail before Justices of the Peace, — — District, ) These are to certify that by an inquisition taken to wit* > before me on view of the body of C. D. at the township of . in the said district, bearing date the ... . ■ day of — ^— - instant, the jurors in the said inquisition named have i ' m 't^l sitJmtmi'i -30 BtttCr0 lit Coranrir* found that A. B, Justifiably and of inevitable ntteuitjr did kill and slay the said (5. D. Givep under my hand this ■ day of J. H. Coroner, Or in defence of himself and for the safety of bis life and property, as against thieves justifiably^ &c* -^-^ Or casually and by misfortune, and against the will of the said A. B, (as in a chance medley.) ■*.- ■i! '^ .fe. ¥, ■s-.'\ ^■4.. ■'*■% ^ >«•• ■'^-' v?^: '""^jliF- , ; ."• " '■' ^, •t. tt • '* w < . . ■ .<' ^ ^ * ?;-. T '1 ■ » ■[ - „ * >SJ>r)». > • • *■ If , . ^ ". ^ * <•-■ ^t' ' , i. »r» *ij'; Tl- . - Jt ^ - ^ ' il. ^ ^- > ^v-* 'uibn-- . « > < i^~ ■•>■ rs' . .'iiuu'/n ■ I i i * P ! - '-" ■-%*l«--i .i* vH 1^ Tl. V ■Jl J «> * - -^ -.f *' h'A ,f' « .•'i* .'- U - ^ ■-. ; « li'a^^u^Ju^ii* «sjj H ».•£?* ;)'.?, ■ti&niif^^ »'*iWtV#t •^ .^: ■^ ntttitit^did kill id this ■ day J. H. Coroner, 8 life and property, the will of the said .i' ■ .. " ♦■»r. Ti • 11.— Of Coparceners. , , Tenancy in coparcenary arises where several persons have by descent a tenement among them in common, by equal propor- tions as co-heirs in equal degree ; or by unequal proportions, as co-heirs in different degrees. Their right to the possession is common, and they- have several and distinct estates. Each has a power of alienation by deed or will over his share, in the same manner as a tenant in common. For example, A. dies seised without male issue, but leaving two daughters ; these children will be joint heiresses and coparceners in the real estate. If one of theiii shonld die, leaving issue, such issue will inherit his or her parent's share, and be a coparcener with the other surviving co-., parcener. Coparceners, or joint tenants, may release to each other. Co. Litt. 163. a. But not so with tenants in common, they must convey, Co. Litt, 200. lie of holding lands. aw has been recently gives the wife dower 1 entitled to a right of idows are entitled to enancyj^ 13. lower, see ante title y---0} «'-■ old property between two or more persons them and their heirs ; n\\ go to the survivor. 185. During the lime tate in any particular irvivorship, unless the ?r by any letters patent, July, 1834, land shall r more persons (other ' for any less estate, it as tenants in common, m sufficiently appears reral persons have by |on, by equal propor- lequal proportions, as to the possession is let estates. Each has lis share, in the same imple, A. dies seised |rs ; these children will ^eal estate. If one of n\\ inherit his or her le other surviving co- may release to each tenants in common, SIf nientfii ^t CotiDciKincinii* ■1;' I2.^0f Tenants in Common, .^^ -14,^,0^ ^if. Tenancy in common is where several persons have distinct estates, either of the same or a different quantity, in any subject of property in equal or unequal shares, and either by the fame or by several acts. Atkin, Com. 225. A tenancy in common may be created by express limitation in a deed, as if lands be given to two persons, to have and to hold, the one moiety to one and his heirs, and the other rnoiety to the other and his heirs, they are tenants in common. Litt. ^ 298. Tenancies in common descend to the heirs of each of the tenants, because they have several freeholds, and not an entirety of interests like joint tenants, and therefore there is no survivorship between them, but each may alienate or devise by will his moiety to any person or persons he may think proper. \Z,-~0/the Partition of Real Estates held in Joint Tenanct/--Ten- ancy in Common — or in Coparcenary, By the 3. W» 4. c. 2. entitled an act to provide for partition of real estates, after reciting, ** that in many cases much inconve- nience is experienced from the want of some court competent to order the partition of lands held in joint tenancy, tenancy in com- mon, and coparcenary," ii is enacted *' that all joint tenants, ten- ants in common, and coparceners of any estate or estates in any lands tenements, or hereditaments within this province, may be compelled to make or suffer partition of such estates in manner hereinafter prescribed ; and when such estates are situate in two or more districts, the proceedings under this act shall be heard before K. B. and if in one district only, then before the district court, or the court of K. B." <^ I. The act then proceeds to direct that any person being a joint tenant, &cc. or Uie executor, administrator, guardian, or agent of any such person, may file his or her petition in the court of K. B. or district court, praying partition, and setting forth the claimants title, and the court shall proceed at the same term to order and direct a partition to be made, provided that due notice has been given, and no sufficient reason alleged against such petition. The writ of partition is to be directed to the sheriff, commanding him by the oaths of three disinterested freeholders of the vicinity, to be appointed by the court, and named in the writ, who are not of kin to the parlies, to cause to be set off and divided to the demandant in the said peti- tion, such part or proportion of such estates as the court shall have ordered ; and in making such partition it shall be the duty of such freeholders to view and examine such estate or estates, to set apart (he same in such lot or lots as will be most advantageous and \ ■ i f I t 1 ^Mi \ ■;i X i SlemriUtf of eotUiesiiiicUiB; equitable, having due regard to the improvements, situation am quality of the different parts of such estates ; and when partitioi has been made in the manner provided by the act, the same slial be described by metes and bounds, and a plan shall accompany the return to the court having cognizance thereof, and after thi division and return thereof it shall be examined by the court, anc if ap(Mroved the clerk shall record such return, which record shall b deemed valid and effectual in law for the partition of such lands tenements, or he'reditaments, and thereupon the party or partie fthall have and hold the shares or parcels to them respectivelj allotted in severalty. ^ 7. But if after issuing of any writ of partition, the freeholders whc are directed to make such partition, shall be of opinion that th( estate cannot be divided without spoiling the whole, they shall returr a true valuation and appraisement to the court, and if the cour - shall approve thereof, and if any one or more of the parties shall elect to take the same at the appraised value, the same shall be adjudged to him or them, he or they, paying, or securing to be paid, to the other parties their proportion of the appraised value, according to their respective rights ; and the sheriff shall accord- ing to the order of the court, execute conveyances to the party or parties electing to take the same, subject to a lien thereon in favour of the other parties until payment shall be made; and in case the parties shall not agree who is to take the same, then the court may order a sale at public auction by the sheriff, giving twenty days previous notice in the newspapers of the districi where the lands lie of such sale, and sixty days if in different di^ tricts: and the sheriff is authorised to execute deeds to the pur chasers at such sale. % 6. ^ *.*,«,. ^ 14. — Of Judgments which Bind the Land. -f When a judgment in a suit of law has been obtained against i person seised of real estate, it is said to bind his land, which ma; be extended and sold to satisfy such judgment. As far as relate to purchasers bona fide for a valuable consideration, judgmer affects the land, tenements and hereditaments of the party onl from the time it is signed, to ascertain which, the master in signio judgment must mention on the record the time of signing it, an the same shall be stated on the margin of the judgment ro when the judgment is entered. 29 C 2. c. 3. % 13. 14. 15. But as all other persons but purchasers the judgment as it affects lane relates to the first day of the term of which it is signed, in tl •ame manner as at common law. 30. E. 3. 24. Archb, K, B, (lOi* And it affects as well landi held in trust for the defendau ACfsOr; Binents, situation and • and when partition ne act, the same shall plan shall accompany thereof, and after ihe ined by the court, and I, which record shall be artition of such lands, .n the party or parties I to them respectively on, the freeholders who be of opinion that the whole, they shall return court, and if the court ,ore of the parties shall alue, the same shall be mng, or securing to be loftheappraiMd value, the sheriff shall accord- ,eyance8 to the party or •ct to a lien thereon in ,t shall be made; and in L take the same, then the ,„ by the sheriff, giving wspapers of the district tv days if in different dis- xecute deeds to the pur- [ndtheLand. b been obtained against I [bind his land, which may Went. As far as relates fconsideration, judgment aments of the party only lich. the master m signing \e time of signing u, and tin of the judgment roU ^3.^13.14.16. But as dgment as it aff«?»>°J .hich it i. Bigned, in the P 'i 24. Archo* A. iJ' * ' f; trust for Ihe defendant. Slemmttf ef €onlirsijmtHij|« 9 as those of which he is actually seised. 29 C. 2. c. 3. § 10. 2 Sound, 10. a. (n. 17.; Arch. K. B. P. 205. A purchaser, therefore, should be careful to satisfy himself pre^- vious to the payment of his purchase money, that there are no outstanding unsatisfied judgments against the land, otherwise after tk completion of his purchase, he may be called upon to pay the amount of such judgments, or the land may be sold by the sheriff to satisfy the same. The search is generally extended for a period of Un years, and if a judgment be found, then for another period often years, preceding the date of the judgment so found. AtJc. Conv. 518. It should be made in the K. 6. and D. court of the district in which the lands lie. fi^t. 15. — Of Mortgages. A' mortgage is the conveyance by the mortgngor of his estate lotlio mortgagee in fee simple, or by demise for a term of years, as a security for the payment of a sum borrowed, usually with a condition that the instrument shall be void, or that the mortgagee shall re-convey upon the payment of the mortgage money and interest within a limited time. Upon the failure of this condition the mortgagees estate be- comes absolute at law, and he may recover the premises by ejectment, and by the 4. TV. 4. c. ^ 36. afier twenty years posses- sion, or receipt of the rents or profits of the land, the mortgagor shall be barred from bis equity of redemption. By Stat. 7. Geo. 2. c. 20. it is an enacted, " that where any laciioii shall be brought on any bond for payment of the money secured by such mortgage, or pci fomance of the covenants therein contained, or where any action of ejectment shall be Ibroiight in any of the courts of record at Westminster, (and by [the adoption of the law of England in this province, 1n the court )f K. B. here) by any mortgagee, his heirs, executors, adminis- 5 irators, or assigns, for the recovery of the possession of any of the Dortgaged lands ; and no suit shall be then depending in any of liis Majesty's courts of equity in England, for or touching the fore- psing or redeeming of such mortgaged lands, if the person having lie right to redeem such mortgaged lands, and who shall appear iad become defendant in such action, shall at any time pending jiich action pay unto such mortgagee, or in case of his refusal, lall bring into court where such action shall be depending, all the [rincipal monies and interest due on such mortgage, and also all ich costs as have been expended in any suit at law or in equity.^. m2 ■J i ii'i inn ■"-'- ■''' "*■' '^ fBUmtntn of eontiritatmf tiff. I)0>'t: '.» \ I upon such mortgage, (such money for principal, interest and c to be ascertained and computed by the court where such acti( depending, or by the proper officer by such court to be appoi for that purpose) the monies so paid to such mortgage( brought into such court, shall be deemed and taken to be in satisfaction and discharge of such mortgage, and the court s and may discharge every such mortgagor or defendant of from the same accordingly, and shall and may, by rule of the s court, compel such mortgagee, at the costs of such mortgago; assign, surrender, or reconvey such mortgaged lands, and estate and interest therein, and to deliver up all deeds unto s mortgagor, his heirs, executors or administrators, or to i person or persons as he or they shall appoint. By the 4.W. 4. c. 16. it is enacted, that any certificate by mortgagee, his heirs, executors, administrators or assigns, her fore given, and registered under the provisions of the 35. G or which may be hereafter registered under the provisions of act, given before or after the time limited by such mortgage, s operate as a release of such mortgage, and as a conveyance the original estate of the mortgagor therein named : but no s certificate, if given after the period limited for redemption, s have the effect of defeating any title other than a title remi ing vested in the mortgagee or his heirs, executors, or adroi trators. Any person seised of freehold estate in fee simple, (but n( fee tail) may dispose of the same by his will. Previous to the 4. W, 4. c. 1. three witnesses were neces to the validity of a will of real estate, and no other estate >v| pass by such will than that which the testator was seised of al time of making his will : but now by the above statute, ticol nesses to any will executed after the passing of this act (Marj 1834,) shall be sufficient; and if the will of any person whof die after the passing of this act, shall contain a devise or| such real estate as the testator shall die seised or possessec such will shall be effectual to pass any subsequently acquired| perty. "§49. - ^^f^.^ <-!:; • ^ , - 17._0/ Titles Barred by lapse of Time. By Stat. A.W. 4. c. 1. Twenty years adverse possession shs the right of any person otherwise entitled, subject to varioul difications and exceptions in favour of infants, married wf insane personsi wild- lands, Uq.^ for which a further per incipal, interest and costs, :ourt where such action is Lich court to be appointed 3 to such mortgagee or ed and taken to be in full gage, and the court shall Igor or defendant of and d may, by rule of the same 3Sts of such mortgagor, to nortgaged lands, and his rer up all deeds unto such dministrators, or to such )point. that any certificate by any istrators or assigns, hereto- rovisions of the 35. G. 3. inder the provisions ol this ed by such mortgage, shall ?, and as a conveyance of lerein named : but no such nited for redemption, shall other than a title remain eirs, executors, or admiiiis- ;> I fi- le in fee simple, (but not i lis will* ce witnesses were necessar ', and no other estate woul ; testator was seised of at tli r the above statute, tico wit aassing of this act (March ( will of any person who sha ill contain a devise of "a die seised or possessed of, y subsequently acquired pr( >y lapse of Time, •s adverse possession shall b ititled, subject to various ra r of infants, married wonu r which a further period TSltmtniu of mtonf^ty^ntinQ. n allowed according to circumstances, but not to extend beyond forty years in the whole. § 29. Upon the trial of any action for land, if (he plaintiff shall show, to the satisfaction of the court and jury, that he is entitled in jus- tice to be regarded as the proprietor of the land, but cannot show a perfect legal title, it shall be competent Co the jury, under the direction of the court, to find a verdict for the plaintiff, unless the defendant Cjan show that he is legally entitled, or holds under the person who is so legally entitled. <^ 52. ^- ' Of the Registry of Deeds and Conveyances. The 35. Gr. 3. c. 4. enacts, that a memorial of all deeds and conveyances, and of all wil's and devises of land, may at the elec- tion of the party be registered ; and that every deed or convey* ance after any memorial so registered, made and executed of the lands, comprised in such memorial, shall be adjudged fraudulent and void against purchasers for valuable consideration, unless such memorial be registered as by this act directed, before the registering of the memorial of the deed under which such subsequent purchaser or mortgagee claims, and every devise by will of the lands contained in any memorial registered as aforesaid, made and pub- lished after the registering of such memorial, shall be void against a subsequent purchaser or mortgagee for valuable considcratioti, unless a memorial of such will be registered as hereinafter di- rected. <^ 2* Every memorial shall be in writing, under the hand and seal of some one or more of the grantors or grantees, his or their heirs, executors or administrators, guardians or trustees, attested by two witnesses, one of them being a witness to the execution of the deed, or conveyance, who shall upon oath before the registrar, or his deputy, prove the execution of such memorial, and of the deed or conveyance mentioned in such memorial, and in case of wills the memorial shall be under the hand and seal of some one or more of the devisees, his or their heirs, executors, &;c., attested by two witnesses, one of whom shall prove on oath before the regis- trar, or his deputy, the execution of such memorial, and the regis- trar shall endorse a certificate thereof on every such memorial, and sign the same. § 4. The registrars fee for entering every memorial is 2s. 6I w l\%l (''; mmmtAamabi mmtm ■WtlP" 12 IS"- Of the usual Mode of Conveyance. .>•,-■ The usual mode of conveyance ia this province is by bargain and sale. Previous to the completion of the purchase the buyer should satisfy himself that the seller has a good title. Where the title has passed through several persons it will be prudent in the purchaser to submit the same to a skilful attorney, as it cannot be expected that a private individual unconnected with the pro- fession can form an accurate opinion on the subject ; and great care should be observed with regard to wills, many of which being drawn up by the parties themselves may be unskilfully worded. In purchasing, however, from the immediate grantee of the crown, little difficulty is to be apprehended. Printed forms of conveyance are to be obtained, and the purchaser himself, or some competent penman, may in such cases venture to fill up the blanks. The riurchaser iihould take care that the wife of the seller signs the deed, and appears before the justices or the chairman of the Q,. S. to bar her dower, and that a memorial of the deed is duly registered. Previous to the completion of the business the purchaser should also search at the register office of the county for mortgages or previous conveyances, which may affect the land, and for judg- ments in the court of K. B. and district court against the pur- chaser, and the assessment roll, to see if any arrears of taxes are due. Purchasers at sleriff^s sales should be equally guarded, as the sheriff's deed conveys no better title than the owner himself had in the land. FORMS IN CONVEYANCING. Agreement for the Purchase of Land. Articles of agreement indented, had, made, concluded and fully agreed upon, this — — day of in the year of our Lord - between A. B. of of the one part, and C. D. of of the other part, as follows : (that is to say,) the said A. B. for the consideration of the sum of ■ of lawful money of Upper Canada, to him in hand paid by the said C. D. at or before the sealing and delivery of these presents, the receipt whereof he the said A. B. doth hereby acknowledge, and in consideration of the further sum of of like lawful money, to be paid as hereinaf- ter mentioned, doth hereby for himself, his heirs, executors and ilTi IB»i iii« • f/mimk\m>^ eyance. ^ 'ovince is by bargain ; purcliase tiie buyer lod title. Wliere liie ill be prudent in the itturney, as it cannot tnected with the pro- e subject ; and great ('ills, many of which I may be unskilfully le immediate grantee nded. Printed forms purchaser himself, or > venture to fill up the wife of the seller signs r the chairman of the al of the deed is duly 3 the purchaser should luty for mortgages or 5 land, and for judg- ourt against the pur* ' any arrears of taxes jually guarded, as the le owner himself had [CING. Land. lade, concluded and the year of our Lord Irt, and C. D. of lyO the said A. B. for 'ful money of Upper D. at or before the [eceipt whereof he the consideration of the be paid as hereinaf- heirs, executors and administrators, and every of them, covenant with the said C. D. his heirs, executors and administrators, and every of them by these presents, that he the said A. B. his heirs and assigns, and all and every other person or persons whatsoever, claiming or to claim any right, title, or interest under him or any other person or per- sons whatsoever of, in, or to the parcel of land and premises hereinafter mentioned, shall and will on or before the — - day of which will be in the year of our Lord by such con- veyances, assurances, ways and means in the law as he the said C. D. his heirs or assigns, or his or their counsel in the law shall reasonably devise, advise or require, well and sufficiently grant, sell, release, convey and assure to the said C. D. and his heirs and assigns, or to whom he or they shall appoint or direct, All that parcel or tract of land, situate, lying and being in the town- ship of [here insert an accurate description of the premises,'] free from all incumbrances and demands whatsoever, except being subject to the several provisions and conditions contained in the original grant from the crown, and also shall and will enter into all fit and reasonable covenants for title usually inserted in deeds of conveyance of the like nature. And Jurther, that until default shall be made by him the said C. D. his heirs, exe- cutors, or administrators, in the performance of his and their part of the terms of this agreement, it shall be lawful for the said C. D. his heirs and assigns, peaceably and quietly to enter into and upon, have, hold, use and enjoy, cultivate and improve the said land and premises without any interruption, denial, eviction or eject- ment, by him the said A. B. his heirs or assigns, or any other per- son or persons lawfully claiming or to claim uny estate, right, title, or interest of, in, or to the same premises, or any part thereof. Provided always, and it is the true intent and meaning of these presents, that the said parcel or tract of land hereinbefore particu larly described, shall nut be so bargained, sold, released, conveyed and assured unto the said C. D. in manner and form and at the time hereinbefore specified, unless ne the said C. D. Iiis heirs, executors, or administrators, some or one of them, shall well and truly have performed, executed and fulfilled the covenants hereinafter mention- ed and expressed, to be by him or them performed, executed and ful- filled. In consideration whereof he the said C. D. for himself, his heirs, executors and administrators, doth covenant with the said A. B. his heirs, executors, administrators and assigns, by these presents, that he the said C. D. his heirs, executors, administrators or as- signs, or some or one of them, shall and will well and truly pay or cause to be paid unto the said A. B. his heirs, executors, adminis- trators or assigns, the aforesaid sum of ■ ■ of lawful money of Upper Canada, with lawful interest thereon from this date, in ( ;»r: ae-Sff I ■ ; IN \l n ii ill i :ffovMU in ^otibtmntim. V f manner and at the times hereinafter mentioned and expressed that is to say, the sum of part thereof, with lawful interes thereon from this date, on or before the .^— day of the sur of other part thereof, with lawful interest thereon from thi date, on or before the day of the sum of othe part thereof, with lawful interest thereon from this date, on o liefore the day of and the sum of residue thereol with lawful interest thereon from this date, on or before the day of [or if it he intended that the interest upon the whol shall be paid annually, then leave out the interest in the precedinj part, and add ** together with lawful interest on the said sum o — - or so much thereof as shall from time to time remain du and owing according to the terms of this agreement, such interest ti be paid annually on the several days and times hereinbefore spec! fled for the payment of the said several instalments] ; and also shal and will bear, pay, and discharge at his own expense all rate and taxes which shall at any time hereafter be imposed upoi or payable for or in respect of the said parcel or tract of lam and premises. And ^or the true performance of all and ever the covenants and agreements aforesaid, each of the said partiei to these presents doth hereby bind himself, his heirs, executor and administrators, unto the other of them, his heirs, executor administrators in the pimal sum of of lawful money aforesaid Tn witness whereof the said parties to these presents have hereunt set their hands and seals the day and year first above written. Signed, sealed and delivered > in the presence of > G. H. A. B. [L.S.] C. D. [L. S.] Assignment of the Agreement. / .,_, To all to whom these presents shall come — Greeting. Whereas the within named C. D. hath duly paid and satisfie to the within named A. B. two several instalments or sums ^10 each, mentioned and referred to in the within written fo hereunto annexed] articles of agreement, together with all interes due upon the whole | amount up to the dsy of appears by the receipl^s of the said A. B. hereupon endorsed (o hereunto annexed) ; atid whereas the said C. D. hath contracte and agreed for the sale of the within mentioned premises, and a improvements thereon, to £. F. of i— - at and for the price o sum of £ subject nevertheless to the payment of the insta ments and interest now remaining due, pursuant to the witlii mentioned contract. Now, "know ycy that the said C. D. for an ■^W "IWI— >fc— dety of as . hereupon endorsed (or 1 C. D. hath contracted tioned premises, and all . at and for the price or 2 payment of the instal- pursuant to the within It the said C. D. for and !n«coD8ideration of the sum of of good and lawful money of Upper Canada, to him in band well and truly paid by the said E. F. the receipt whereof is hereby acknowledged, hath bargained, sold, assigned, transferred and set over, and by these presents (?o^A bargain, sell, assign, transfer and set over, unto the said E. F. his heirs, executors, administrators and assigns, all the right, title and interest, of him the said C. D. of, in and to the within written articles of agreement, covenants, and the lands and pre- mises therein referred to, and all improvements thereon, and all benefit and advantage to arise therefrom, or from the principal monies thereby secured. To have and to hold^ receive and enjoy the said assigned premises unto the said £. F. his heirs, executors, administrators and assigns, from henceforth, for his and their own use and benefit for ever ; and the said C. D. doth hereby make, ordain, authorise, constitute and appoint the said E. F. his heirs, executors and administrators, his true and lawful attorney and attornies, irrevocable for him the said C. D. and in his name, but for the sole use and benefit ofthe said E. F. his heirs, executors and administrators, to demand, sue for, recover and receive, of and from the within named A. B. his heirs, executors, or administra- tors, all such sum or sums of money and damages as shall or may at any time or times hereafter accrue, and grow due to him the said A. B. his heirs, executors, administrators or asssgns, under or by virtue ofthe said articles of agreement and covenant, or any matter, clause or thing therein contained, by reason or on account of the breach or default of him the said A. B. his heirs, executors or ad- ministrators in relation f.hcreto ; and the said C, D. for himself, his heirs, executors and administrators, doth hereby covenant with the said E. F. bis heirs, executors and administrators, that he hath not done or sufiered, and that he, his heirs, executors, or administrators, shall not nor will do or suffer any act, matter or thing whereby or by reason whereof the said E. F. his heirs, executors or administrators, shall or may be hindered or pre- vented from suing and prosecuting any action or actions, suit or suits for the recovery of any principal, money or daniu^es under by virtue of the said articles of agreement and covenant or referred to, or such other satisfaction as can or may be had or obtained for the same by virtue hereof. In witness, he* Deed of Bargain and Sale. This indenture, made the day of • in the year of between — — . our Lord one thousand eight hundred and Witnessetht that the said . for and in consideration of the sum of I of lawful money of the said province, to him in i ^ ; /, IG jf^tmu in eonnefiAnrfng. hand paid by the said at or before the ensealing or dell I ' 1 very of these presents, the receipt whereof is hereby acknow- ledged, hath granted, bargained, sold, aliened, transferred conveyed, enfeoffed and confirmed, and by these presents dot! grant, bargain, sell, alien, transfer, convey, enfeoff, and confirn unto the said heirs and assigns for ever, all and singulai th — — certain parcel or tract of land and premises, situate, lying and being in the ■ together with all the houses, out-houses, woods and waters thereon erected, lying and being, and all anc singular the hereditaments and appurtenances to the said premiset in any wise belonging, and the reversion and reversions, remain- der and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim, property and demand whatso- ever, either at law or in equity, of liim the said ■ of, in, to, or out of the same, and every part thereof. To have and to hold the same, with the appurtenances, freed and discharged from ull incumbrances whatsoever, unto the said ■ heirs and assigns. to the sole amd proper use, benefit and behoof of the said heirs and assigns for ever, under the reservations, limitations and conditions expressed in the original grant from the crown. And the said - for himself and his heirs, executors and adminis- trators, doth covenant, grant and agree, to and with the iaid — — — heirs and assigns, that he the said — — now is the true, lawful and rightful owner of all and singular the said parcel or tract of land| and premises above mentioned, with the appurtenances, and of every part and parcel thereof, and now is lawfully and rightfully seized in his own right, of a good, sure, pen'^ct, absolute and indefeasi- ble estate of inheritance in fee simple, of and lo the premises hereby granted, bargained and sold, or intended to be granted, bargained and sold, without any condition or limitation of use or uses, or any other matter or thing to alter, charge, change, incumber, or defqat the same ; and also, that ■■ the said ■ ■■ heirs and assigns, shall and may, from time to time, and at all times hereafter for ever, peaceably and quietly enter into, have, hold, occupy, possess and enjoy, all and singular, the said premises above mentioned, and every part and parcel thereof, with the appurtenances, without the let, trouble, hindrance, mo- lestation, interruption or d'?nial of him the said his heirs or assigns, or any other person or persons whomsoever lawfully claiming or to claim, by, from or under him, them or any or either of them : and further, that he the said and his heirs, and all and every other person or persons whomsoever, having or law- fully claiming any estate, right, title, trust or interest, of, in, or to the said premises above mentioned, or any part thereof, by, from, or under him, them, or any or either of them, shall and will at all the ensealing or delt- if is hereby ackuow- aliened, transferred, y these presents doth r, enfeoflf, and confirm ever, all and singular tremises, situate, lying he houses, out-houses, nd being, and all and les to the said premises nd reversions, remain- ts thereof; and all the ^ and demand whatso- said of, in, to, To have and to hold id discharged from all heirs and assigns, oof of the said ^rations, limitations and from the crown. And executors and adminis- to and with the iaid - now is the true, lawful id parcel or tract of land rtenances, and of every y and rightfully seized absolute and indefeasi- f and ii) the premises ntendeu to be granted, or limitation of use or liter, charge, change, that ■ the said from time to time, and and quietly enter into, and singular, the said |rt and parcel thereof, •cable, hindrance, mo- said his heirs or whomsoever lawfully |i, them or any or either and his heirs, and all lever, having or law- )r interest, of, in, or to >art thereof, by, from, fm, shall and will at all 5^-v jfatmn fti eonliefiaintinii* I? Umei hereaAer, upon the reasonable request, and at the proM costs and charges of the said — — — heirs and assigns, make, ^ and execute, or cause or procure to be made, done and executed, all and every such further and other lawful and reasonable act or acts, devices, conveyances and assurances in the law whatsoever, for the further, better and more perfect granting, conveying and assuring of all and singular the said premises above mentioned, with the appurtenances unto the said heirs and assigns, as by the said — — — heirs or assigns, ■ or their counsel shall be reasonably devised, advised or required. • And also that the said wife of the above named for and in consideration of the sum of five shillings of lawful money as aforesaid, to her by the said now in hand paid, hath remised, released, and for ever relinquished, and by these pre- sents doth remise, release, and for ever relinquish unto i the heirs, executors, administrators and assigns, all and all manner of dower and right or title of dower whatsoever, which she the said — — — in the event of surviving the said her husband, might or of right ought to have or claim in, to, and out of the said certain parcel or tract of land and premises above mentioned, and every part and parcel thereof, and all manner of action or actions, and writ or writs of dower whatsover. In witness whereof the parties to these presents have hereunto set their hands and seals, the day and year first above written, and in the -^-— year of his Majesty's reign. Signed, sealed, and delivered, } in the presence of 5 District ict, I Bar of Dower, — before me — the wiihin named personally appeared and being duly exa- mined by me, touching her consent to be barred of her dower, of and in the lands within described, she gave her consent thereto, and it did appear to me that such consent was free and voluntary, and not the effect of coercion, or fear of coercion on the part of husband or any other person. Given under my hand, this day of in the year of our Lord one thousand eight hundred and ^ ila, Receipt to be Endorsed on the Bargain and Sale. Received on the day of the date of the within written indenture, of and fronfi the within named the sum of of lawful money of Upper Canada, being the full consideration money in the said indenture mentioned, to be paid by ~~— . to Witness k \ H A - ^. Ir 18 Memorial of Bargain and Sale, A memorial to be registered pursuant to he statute in such case made and provided, of an indenture of bargain and sale, made the day of — — in the year of our Lord one thousand eight hundred and between — — of the one part, and— —of the other part ; whereby the said for and in consideration of the sum of — — of lawful money of the said province, to in hand paid by the said— — the receipt whereof is aclcnowledged, did grant, bar. gain, sell, alien, transfer, convey, enfeoff and confirm, unto the said heir^ and assigns, for ever, all and singular th certain parcel and tract of land and premises, situate, lying and being in the — - together with all houses, cut-houses, woods and waters thereon erected, lyiug and being. And all and singular, the hereditaments and appurtenances to the said premises in anywise belonging, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim, property and demand whatsoever, cither at law or in equity, of the said — — of, in, to or out of the same, and every part thereof; under the reservations, limi- tations and conditions, expressed in the original g'ant from the crown. To have and to hold the same, with the appurtenances, freed and discharged from all incumbrances whatsoever, unto the said ' heirs and assigns, to the sole and proper use, benefit and behoof of the said •— hei.'S and assigns for ever. Upon which indenture is endorsed a certificate of — — declaring that — wife of the said personally appeared before him, and being duly examined by him, touching her consent to be barrred of her dower of and in the lands therein described, she gave her consent thereto, and that it did appear to him that such consent was free and voluntary, and not the effect of coercion, or the fear of coer- cion, on the part of her husband or any other person, and whicli said indenture is witnessed by ' and this memorial thereof is hereby required to be registered by ■ the said grant therein named. Witness — — hand and seal at — — the — — day o in the year of our Lord one thousand eight hundred am Signed and sealed in the presence of MORTO^GE IN FEK. Thii Indenture^ made the — Lord Ji between Vi* K. of day of in the yeai of ou| yeoman, and S. his wife of the other part. WitnCi^setlJi that in consideration of the sum of <£ of good and kwfu the one part, and J. W. of. current money of Upper Canada, b^ the caid J. W. to the sail H. K. in hand paid, at or before the sealing and delivery of thesl fCftlft. 9otm» in eoniiesanrCtii* t^ ;8 Sale, ie statute in such case rgain and sale, made rd one thousand eight rt, and of the other ideration of the sum of — in hand paid by edged, did grant, bar. confirm, unto the said ular th certain parcel ing and being in the woods and waters all and singular, the d premises in anywise sions, remainder and of, and all the estate, demand whatsoever, —~ of, in, to or out the reservations, limi- riginal g-anl from the ith the appurtenances, ;s whatsoever, unto the nd proper use, benefit signs for ever. Upon )f — .- declaring that i before him, and being >nt to be barrred of her I, she gave her consent such consent was free on, or the fear of coer- ther person, and which Ills memorial thereof is the said grant therein the day of md eight hundred and ?'Elli. — — in the year of our lan, and S. his wife of ther part. JVitncsetlh of good and li wful I caid J. W. to the said ng and delivery of these presents, the receipt whereof is hereby acknowledged. He, the said H. K. hath granted, bargained, sold, aliened, con- veyed, and confirmed, and by these presents doth grant, bargain, sell, alien, convey, and coinirm unto the said J. W. and to his heirs, all, &c. (dacribing tht lot, or premises) together with ail ways, paths, passages, waters, water-courses, privileges, advanta- ges, and appurtenances whatsoever to the said premises, hereby granted and conveyed, belonging, or in any wise appertaining ; and the reversion and reversions, remainder, and remainders, rents, issues, and profits of the same; and all the estate, right, title, and interest, both at law o.nd in equity, of him, the said H. K. of, in, to, or out of the same premises, to have and to hold the said parcel, or tract of land and premises hereinbefore granted and conveyed, with their appurtenances, unto and to the only proper use and behoof of the said J. W. his heirs and assigns for ever, subject nevertheless to the proviso for redemption hereinafter contained ; and this indenture also witnesscth, that the said S. the wife of the said H. K. in consideration of the sum of five shillings of lawful and current money afiresaid, to her now paid by the said J. W. hath remised, re-lcased, and for ever relinquished, and by these presents doth remise, re-lcase, and for ever relinquish unto him, the said J. W. his heirs and assigns, all and all manner cf dower and right, or title of dnwor whatsoever, which, she the said S. in the event of her sur^'ivi jg the said U. K. her husband, might, or of right, ought to have, or claim, in, to, and out of the said parcel, 3r tract of land and premises above mentioned, and every part and parcel thereof, and all manner of action or actions, and writ or writs of dower whatsoever. Provided always, and these presents are upon this express condition, thut if the said H. K. his heirs, executors, administrators, or assigns shall and do, well and truly pay unto the sniu J. W. his executors, administra- tors, or assigns, the full and Just sum of £ of lawful and current money as aforesaid, with interest for the same, after the rate of six pounds for ever\ one hundred pounds, for a year, on or before the , day of . now next ensuing, without any deduction, or abatement, then these presents shall be void ; and the said H. K. for himself, his heirs, executors and administrators doth hereby covenant with the said J. W. his executors, adminis- trators, and assigns, that he, the said H. K. his heirs, executors, administrators, or assigns, shall and will, well and truly pay unto the said J. W. his executors, administrators, or assigns, the said sum of £ with interest for the same, after the rate, and at the time, and in manner aforesaid ; and the said H. K. doth hereby for himself, his heirs and assigns, also covenant with the said J. W. his heirs and assign, in manner following, that is to ■ J ■ r V ■' I il (' li)' ' 20 jFornifit In ^tm^mvitiixs;. say, that he, the said H. K. now hath good right by these pre- sents, to grant, bargain, sell, alien, convey, and confirm all the aforesaid premises unto and to the use of the said J. W. his heirs and assigns in manner aforesaid ; and ahoy that from and after default shall happen to be made, in payment of the said sum of ^ and the interest thereof, contrary to the true, in- tent, and meaning of these presents, it shall be lawful for the said J. W. his heirs and assigns, peaceably and quieily to enter into, have, hold, and enjoy the said premises, and receive, and take the rents, issues and profits thereof, to his and their own use, without any interruption or denial of the said H. K. and S. his wife, or either of them, their, or either of their heirs, or assigns, or of any other person, or persons whomsoever, and that free and clear, and freely and clearly acquitted, exonerated and discharged from all former and other grants, bargains, sales, mortgages, titles, charges and incumbrances whatsoever ; and that\\\ey, the said H. K. and S. his wife, and his heirs, and all other persons whomsoever, claiming- any estate, or interest in the premises, shall, and will, from time to time, and at all times, from and after default in pay- ment of the said sum oi £ and interest thereof, as aforesaid, upon the reasonable request of the said J. W. his heirs, or assigns, execute all such further, and other lawful, and reasonable deeds, conveyances, and assurances, for the further, better, more perfect- ly and absolutely conveying and assuring the said premises unto and to the use of the said J. W. his heirs and assigns, as by the said J. W. his heirs, or assigns, or his, or their counsel in the law shall be lawfully required ; and lastly^ it is hereby declared, and agreed by and between the said parties to these presents, that until default shall happen to be made of or in the payment of the said sum of £ , r, , and the interest thereof, contrary the true in- tent and meaning of the above written proviso, it shall be lawful for the said H. K. his heirs and assigns, peaceably and quietly to have, hold and enjoy the said pren|is^es, and receive and take the rents and profits thereof, without any interruption or denial by the said J. W. his heirs, or assigns, or of any person or persons whom- soever, claiming under him or them. In witness, Uc. . ft* , Receipt to he Indorsed on the Mortgage^ nnd Signed hi/ tJie e- V » , Keceiver, i ■ l ■ ■ - Received o'^ the day of the date of the within indenture of mort- gage, of and from the within named J. W. the sum of £ { i 1- ■^^^ tim. iFornifit of Con^esaineinB;* 21 i, >M d right by these pre- nvey, and confirm se of the said J. W. and alsoj that from I payment of the said irary to the true, in- be lawful for the said juietly to enter into, receive, and take the leir own use, without ;. and S. his wife, or or assigns, or of any at free and clear, and discharged from all tgages, titles, charges y, the said H. K. and persons whomsoever, lises, shall, and will, i after default in piy- ; thereof, as aforesaid, . his heirs, or assigns, and reasonable deeds, , better, more perfect- ie said premises unto s and assigns, as by )r their counsel in the it is hereby declared, to these presents, that in the payment of the , contrary the true in- iso, it shall be lawful ceably and quietly to receive and take the ption or denial by the 'son or persons whom- fud Signed hy the lin indenture of mort- . the sum of £ being the full consideration within expressed to be by him paid to me. H* K* Witness^ G. H. For the form of a mortgage bond, see post •' Bonds.*' Memm'ial of a Mortgage in Fee, Memorial of an indenture of mortgage, dated the .. day of — , .. made between, lie. [as in the preceding form]— ^o hold unto, and to the only proper use and behoof of the said J. W. his heirs and assigns for ever, subject to a proviso, that the same shall be void on the payment of the sum of and interest for the same, at the rate of six pounds for every one hundred pounds for a year, on the .. day of which said indenture of mortgage is witnessed by and is hereby required to be re- gistered pursuant to law, by me, the said - the grantor (or grantee) in the said mortgage. As witness, S£c. K. Li. Signed, sealed and delivered > in the presence of ) A. B., C. D. Conveyance hij the Mortgagee in Possession^ to a Purchaser of Mortgaged Premises. This indenture^ ^c. between (the mortjs^agee of the one part,) and (the purchaser of the other part.) Whereas, by an indenture of mortgage, bearing date, the — — . day of >- and made be- tween A. B. of and C. B. his wife, of the one part, and the said (mortgagee) of the other part, in consideration of the sum of to him, the said A. B. paid by the said (mortgagee) he Ithesaid A. B. did grant, bargain, sell, alien, convey, and con- jfirm unto the said (mortgagee) and to his heirs, all, he, (de- scribing the premises) — to hold unto, and to the use of the said (mortgagee) his heirs and assigns for ever, with a proviso, that if the said A. B. did and should pay unto the said (mortga- gee) the full and just sum of together with interest (hereon^ at the rate of six pounds for every one hundred pounds for a year, on or before the day of then next and now past, that then the said recited indenture of mortgage should be void ; land whereaSf the said sum of and interest thereon, was not Ipaid at the time limited and appointed for payment of the same lin and by the said proviso, whereby the estate of the said (mort- i.' m -I I 1 iij . m I m \' 22 ffwcmu in eotiHrsancinir* ■Hi gagee) in the said premises, became absolute at law ; and whereas^ the said principal sum of and all interest thereon, from the date of the said mortgage, remain due and unpaid to the said (mortgagee) and the said (mortgagee) hath contracted and agreed with the said (purchaser) for the sale of the said premises to him at the price, or sum of ■ now this indenture witnessethy that in con- sideration of the sum of — — (and then proceed as in an ordina- ry cor.vct/ance.) Mortgage by Demise^ for a Term of 500 Years. This indenture^ made the — .— day of in the year of onr Lord between A. B. of and C. B. bis wife, of the one part, and G. H. of of the other part, witnessethy that in consideration of the sum of _— of good and lawful money of Upper Canada, to the said A. B. paid by the said G, H. at or before the execution of these presents, the receipt where- of, is hereby acknowledged. He, the said A. B. hath granted, bargained, sold and demised, and by these presents doth grant, bargain, sell and demise unto the said G. H. his executors, ad- ministrators and assigns, all that, &£c. [describing the premises,] and the reversion and reversions, remainder and remainders, rents, issues and profits of all and singular the said premises, to have and to hold the said parcel or tract of land and premises hereb; demised as aforesaid, with their appurtenances, unto the said G H. his executors, administrators and assigns, from the day nex before the day of the date of these presents, for and during, and unto the full end and term of 500 years, from thence next en- suing, and fully to be complete and ended. And the said C. B, Etc. [^herc add the bar of dower^ ; provided always, and these presents are upon this express condition, that if the said A. B. his heirs, executors or administrators, do and shall w^ll and truly pay unto the said G. H. his executors, administrators or assigns, the full sum of of lawful and current money aforesaid, with in- terest for the same, after the rate of £G for every £100 for a year, on or before the .i day of now next ensuing, without any deduction or abatement, these presents and the term hereby granted, shall be void. And the said A. B. doth hereby for him- self, his heirs, executors and administrators, covenant with the said G. H. his executors, administrators and assigns, that he, the said A. B. his heirs, executors or administrators, or some, or one of thcni, shall and will well and truly pay unto the said G. H. his executors, administrators or assigns, the said sum of and interest thereon, at the rate aforesaid, on or at the day, or time, and in the manner above limited for payment thereof, in and by the above proviso. In witness, kc. Add a receipt on the back for the mortgage money. law ; and whereas, the ereon, from the dale of the said (mortgagee) and agreed with the remises to him at the itnessethy that in cun- oceed as in an ordinu- Vu iFormi^ in €on)$tmntim. 23 id f 500 Years. in the year of C. B. bis wife, of ither part, witnesseth^ of good and lawful . paid by the said G, nts, the receipt where- A. B. hath granted, ; presents doth grant, H. his executors, ad- icribing the premises,] and remainders, rents, said premises, to have d and premises herebj- nces, unto the said G. ;ns, from the day nexi ents, for and during, s, from thence next en- . And the said C. 13. ded always, and these at if the said A. B. his hall w^ll and truly pay istrators or assigns, the | iney aforesaid, with in- every JGIOO for a year, I next ensuing, without !s and the term hereby 3. doth hereby for him- irs, covenant with the I d assigns, that he, the ators, or some, or one into the said G. H. his said sum of and or at the day, or time, ent thereof, in and by| affe money. A Certificate of Mortgage Money being Paid. — 35 G. 3. c. 5. 1, J. W. of. do hereby certify, that W. D. of. — hath paid and satisfied all such sum and sums of money as were due and owing upon a mortgage, made by the said W. D. to me, bearing date, the — • day of — — and registered at . of the clock in the forenoon of the ——day of following, in the full discharge of the same ; and I do hereby require an entry of such payment, and satisfaction to be made pursuant to the act of the legislature, in that case made and provided. As witness my hand, this — — day of . [Sio'ned] J. W. Attested by W. M. of and J. H. of . Memorandum — That upon the certificate of the within named J. W. dated the ■ day of — — proved by the oaths of W. M . of- and J. H. of' that all monies due on the within men- tioned mortgage, are fully paid and satisfied in discharge of the same : this entry in discharge thereof, is made pursuant to the said act of the legislature, this — — day of by T. J., Registrar. Assignment by the Mortgagee of the Term to a Purchaser. This indenture. Uc. between, &ic. [then recite the mortgage in a similar form to the recital in the preceding form, with due re- gard to the term. Sic] Now this indenture witnesseth, that in consideration, &.c. He, the said (mortgagee) hath bar- gained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over unto the said (purchaser) his executors, administrators and as- signs, all, &ic. to have and to hold the said parcel or tract of land, and all and singular other the premises hereby assigned unto the said (purchaser) his executors, administrators and assigns, for and during all the rest,, residue and remainder, now to come and un- expired, of and in ihe said term of 500 years, free from all incum- brances ; and the said (mortgagee) doth hereby, for himself, his lieirs, executors and administrators, covenant with the said pur- chaser, his heirs, cr'.ecutors, administrators and assigns, that the said term of 500 years, by the said recited indenture of mort- gage granted, is now a good, valid and subsisting term, and that lie, the said (mortgagor) now hath in himself, good right to assign the said parcel or tract of land and premises unto him, tlie said (purchaser) his executors, administrators and assigns, for all the remainder of the said term ; and moreover, that he, the I I 24 fi0vmf$ ill €^onlie$ancln0» U u said (purchaser) shall and lawfully may peaceably and quietly have, hold and enjoy the said premises for all the remainder of the said term, now to come, without any disturbance, interruption or denial by the said (mortgngee) his executors or administrators, or by the said (mortgagor) his heirs or assigns, or any person or persons claiming under any or either of them, and that freely and clearly exonerated and discharged from all incumbran- ces whatsoever ; and further^ that he, the said (mortgagor) his executors and administrators, and all persons claiming under him or them, or any of them, shall and will, at the request, costs and charges, of the said (purchaser) his executors, administrators or assigns, execute all such further and other assignments and assur- ances, for the further and better assigning and assuring the said promises unto him, the said (purchaser) his executors, administra* tors and assigns, for the remainder of said te m, as by him or them, or his, or their counsel in the law shall be reasonably required. In witness, Sec. ' . , . Add a receipt for the purchase money. ' , ■■- Memorial of an indenture of assignment, &^c. [which may be easily framed from the preceding forms.] (If any deeds are executed within the county in which the lands lie, the affidavit of the execution must be made before the registrar of the count}', but if executed out of the county, it may be then sworn before a commissioner of the K. B.) JPo/'wt of (lie Affidavit before a Commissioner. Upper Canada. *) A. B. of niaketh oath and saith, that he .r^.1.— District, > was personally present, and did see the within to wit. ) named grantor (or grantee) C. D. duly sign, seal, and as his act and deed, deliver the indenture of bargain and seal (or mortgage,) of which the within is a memorial, and that he was also personally present, and did see the said within numed grantor (or grantee) CD. duly sign and seal the within ;i)emorial for the registry thereof, and that he, this deponent, is a sub- scribing witness to the said indenture of bargain and sale (or mortgage,) and also to the within memorial, and further, that both the said l4istruments were executed without the county of Sworn before me at ■ ^ - - A. B. in the district aforesaid, the day of— 18 — £. F* A Commissioner King^s Berchf — - District. iPovnifii itf eonlici^Aiiciu0. 25 , he. [which may be imisstoner. , :.; ;. BILL OF SALE. . , ^ • v' .'." jj-jj ^j- g^j^ ^j Q^^^^^ ^^j^^ Chattels. Know all men hy these presents, thai I, A. R. of — — in consi- deration of the sum of to me in hand paid by C. 1). of at or before tX\c sealing and delivery of these presents, the receipt whereof 1 do hereby acknowledge, have granted, bargained, gold and confirmed, and by these presents do grant, bargain, sell and confirm unto the said C. D. oil and singular the goods and chattels mentioned in the schedule hereunto annexed, now being ill and upon or about the dwelling house and premises o^ the said A. B., situate at ■ To have and to hold the goods and chat- tels aforesaid, and every of them, by these presents, bargained and sold unto and to the only proper use and behoof of the said C. D. his executors, administrators and assigns for, ever, freely, quietly, peaceably and without any contradiction, claim, disturbance, or hindrance of any person whatsoever, and without any account to me or to any other person whatsoever, to be made, answered, or hereafter to be rendered, so that neither I, the said A. B. or any other for me, or in my name, any right, title, interest, or demand of, in, to, or for the said goods and chattels, or any part or parcel thereof, ought to exact, challenge, claim or demand at any time or times hereafter, but from all action, right, estate, title, claim, de- mand possession and interest thereof, shall be wholly barred and excluded by force and virtue ofthese presents ; and I, the said A.B. for myself,my executors and administrators, all and singular the said goods and chattels unto the said C. D. his executors, administra- tors and assigns, against me the said A. B. my executors, admi- nistrators and assigns, and against all and every other person or persons whatsoever, shall nnd will warrant and for ever defend by these presents, of which goods and chattels I the said A. B. have put the said C. D. in full possession, by delivering him (one chair) in the name of all the said goods and chattels at the sealing and delivery hereof. In witness whereof I have hereunto set my hand seal, the — — day of Sealed and delivered, and possession of the goods and^ chattels above bargained and sold, given by the said A. B./ to the said C. D. by the said A. B/s delivering to the> said C. D. one chair in the name of the whole goods and% chattels, in the presence of / Or Livery of Possession may be Endorsed, thus. Memorandum* — On the day and year within written, possession of the goods and chattels within bargained and sold was delivered ]S2 i*;-!.. A. B. (Seal.) '!j 111 '\i W ' ^ ^ '^■ l\ h 26 iPorm0 in eontiesntirinn* by the said A. B. to the said C. D. by the said A. B.'g giving to the said C. D. one chair in the name of livery and possession of the whole, in the presence of By Stat. 13. Eliz. f. 5. ^ 2. (made perpetual by stat. 29. Eliz. c, 5.) every conveyance of goods and chattels, Sic. with intent to delay or defraud creditors of their just actions and debts, shrill be void as against creditors. Therefore, notwithstanding the formal delivery of one article in the' name of the whole, the bill of sale will be deemed fraudulent against creditors unless the possession of the goods and chattels actually accompany and follow the deed, ^in cases where the deed is not conditional). 2 Durnf. and East. 587. Edwards v, Harben Ex. of Tempest Mercer, If the change of property be bonajide and notorious, the statute will not affect it. So where the goods of A. were seized by the sheriff upon Bji,fa, and sold to B. bonajide upon a valuable considera- tion, though B. permitted A. to remain in possession of the goods, upon condition that A. should pay the money as he should raise it by sale of the goods, this was held to be lawful by Lord Holt. Cole V. Davies. I Ld. Raym. 724. It has also been bid that if B. lend A. money to buy the goods, and having taken an assignment of them as a security for the debt, permit A to remain in possession, it would not be fraudulent. Kidd v. Rowlinton, 2 Bos. and Pul, 59, In Lord Cadogan v. Kennettf Lord Mansfield said, *' the queg. tion in every case is, whether the act done is a bona fide transac- tioDi or whether it is a trick or contrivance to defeat creditors." Actual delivery of the goods is lot absolutely necessary to ren- der the transaction good, where the nature of the subject renders it impracticable, or where acts equivalent to delivery have been done, as assignments, of goods at sea, with the delivery of the paper documents, or the delivery of the key of the warehoust in which the goods are contained. MantoUt v, Moore, 7. T. R. 67. '. ,- ! Mortgage q, ' Goods. This indenture made, &c. betwuen A. B* of the one part, and C. D. of the other part. Witnesstth that the o?id A. B. in consi* deration of the sum of of g 3od and lawful money of the province of Upper Canada, advanced and paid by the said C. D. to the said A. B. at or before the sealng and delivery of these pre- sents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, rnd by these presents doth grant, bargain and sell, unto the said C D. his executors, administrators and ! ■ ' ■ •;\i ff^vmn fii eontieon^tting* 27 lutely necessary to ren- of the subject readers to delivery have been |Uh the delivery of the key of the warehouse w. Moore, 7. T. JR. 67. \, of the one part, and [he i.7\d A. B. in consi- U lawful money of the [paid by the said C. D. Id delivery of these pre- pledged, hath granted, [s doth grant, bargain )rs, administrators and assigns, oil and singular the several goods and chattels mentioned and specified in the schedule hereunder written (or hereunto an- nexed) and now being in and upon the dwelling-house and pre- mises of the said A. IS. situate at To havt and to hold^ all and singular the said j^oods and chattels unto the said C. D. his executors administrators and assigns, for ever. Provided alwaySf and it is hereby declared and i.greed, that if the said A. B. his exe- cutors, administrators, or assij^ns, or any of them, do or shall well and truly pay, or cause to be pair' unto the said C. D. his execu- tors, administrators or assigns, the sum of of good and lawful money aforesaid, with interest at the rate of six pounds for every one hundred pounds for a ^ear, on or before the day of now next ensuing, then these presents shall be void, and the said A. B. for himself, &tc. (here add a covenant for payment ofth, money similar to the form in p. 19) and further that he the said A. B. his executors, administrators and assigns, all and singular said goods and chattels hereby bargained and sold unto the said C. D. his executors, he. against him the said A. B. his executors, administrators and assigns, and all and every other person and persons whomsoever shall and will warrant and for ever defend uy these presents. In witness, he. BOND. Common Bond from one or mora Obligors, to one or more Obligees^ •'■snotit}vn *■ for Payment of Money at one period. Know all men, ly these presents ^ that (, (we) A. B. of in the district of yeoman, (C. D. of — — and so on, if more obligors,) am (are) held and firmly bound to E. F. of (G. H, of — — and so on, if more obligees,) in the sum of [Jive Awn- dred pounds'] of lawful money of Upper Canada, to be paid by the said £. F. [G. H. &ic. if two obligees, add or either of them, but if three or more, say or any or either of them,] or his (their) certain attorney, executors, administrators, or assigns, for which payment to be well and truly made. I (we) bind myself, (our- selves, and each of us by himself) my (our and each of our) heirs, executors and administrators firmly by these presents. Sealed with my {our) seal {seals.) Dated the — — day of in the year of our Lord — — The condition odhh obligation is such, that if the above boun- den A. B. {and C. D. or either of them) his {their, or either of their) heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid unto the above named- E. F. [Cr.fl. ^i : m 28 j^oritifii in ^otMwntina. li • ^ II: % :9i fl|

    in the presence of—— { - ■''-'<. u^ For P4»ynunt of Money with Interest by Inttalmente. Conmmcement at before.] .- , >: The condition of this obligation is such, that if the above bounden A. B. his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid unto the above named C. D. his executors, administrators, or assigns, the full sum of -——of lawful mpney aforesaid, with interest for the same, after the rate of six pounds for every one hundred pounds for a year, on the days and times and in manner following, [that is to say,j the sum of — — — part thereof, with interest for the same, after the rate aforesaid, on the day of — — next ensuing the date of this obligation, the sum of other part thereof, with interest for the same, after the rate aforesaid, on the ■ ■■ ■- day of • then next following, the sum of £ residue thereof, with inte- rest for the same after the rate aforesaid, on the — — day of then next ensuing, and which will be in the year of our Lord then this obligation shall be void. But if default shall be made in payment of any or either of the said several and respective sums of money, with the interest thereof respectively, in manner aforesaid, or any part of them, on any of the said days and times above mentioned for payment thereof, according to the true intent and meaning of these presents ; then this obligation is to remain in full force and virtue. N. B. The amount inserted in the bond is usually double the amount intended to be secured. r Bond for the Conveyance of Land upon Payment of the Purchase Money by Instalments, v^t -•■> -»■* Commeruement as before.] sv,*.* t j* Whereas the said 0. D. hath lately contracted and agreed with the said A. B. for the purchase in fee simple of Lot No. one, in the third concession of in the district, containing —— acres, more or less, free from all incumbrances, [except as here- inafter profided] at the price or sum ofJC— — to be paid within ;9otm» in eonnra^iiticdift* 29 five years A-om this date, by equal annual Instalments of ^10 each, on the — — day of in each year, with interest upon the whole amount, from time to time remaining due, at the rate of six pounds for every one hundred pounds for a year, such interest to be paid annually, on the said > day of in each year, and the first instalment and interest to be paid on the i day of now next ensuing. T' condition of this obligation is such, that if the said C. D. his heirs, or assigns, shall and do well and truly pay, or cause to be paid upon demand, ijnto him the said A. B. his heirs, or assigns, the said sum of £50, by equal annual instalments, with interest thereon, at the rate, and at the days or times, and in manner aforesaid, without any defaication or delr;*; and ahot shall and do pay and satisfy all such rates, taxes, 01 assessments as shall from time to time hereafter grow due on account of the said premises, then if the said T.. Sealed, &ic. f* . ,; . . K.v;.r>--, isually double the it of the Purchase .I., : Form of Receipt to be Endorsed on the Bond, Toronto, 1st May, 183 Received of the within named C. D. the sum of £10, in discharge of the first instalment, due this day, and .£3 for interest. A. B. Another Form for the Payment of the Interest Annually, and the Principal in ten Years. c^m%m;"sri'- wr iJH Whereas the said C. D. hath lately contracted, &£c. for the pur- chase o^, irx, at the price, he. £lOO, to be paid on or before the — -~ day of— — which will be in the year of our Lord 183-*> >*: m V-i 30 jFovtnn in ConHesatirf tin;. together with interest thereon in the mean time, at the rate of itx pounds for every one hundred pounds for a year, each interest to be paid half yearly, on the " day of and the — — day of- in each and every year during the period aforesaid, and the first half yearly payment to be made on the day of next ensuing the date of this obligation. The condition of this obligation is such, that if the said C. D. his heirs, or assigns, shall and do well and truly pay, or cause to be paiu, unto liim the said A. B. his heirs, or assigns, the said i^um of £100, on or before the said — — day of 18— and also shall and do in the mean time, well and truly pay, or cause to be paid unto the said A. B. his heirs, or assigns, the interest thereon at the rate aforesaid, by equal half yearly payments, on the days or times, and in the manner aforesaid, and also .rail and do pay and satisfy all such rates, taxes, he. : then if tii«; said A. B. his heirs, or assigns, shall and do after full payment, &c. las in the la$t form."] When the Interest is Payable in Advance, Whereas^ fyc* [as in the last form"] together with interest there- on in the mean time, at the rate of six pounds for every one hun- dred pounds for a year, such interest to be paid yearly in advance, on the ■ day of ■ in each jear, during the period aforesaid, and the first years' interest, amounting to the sum of £ being now paid down, as he tlie said A. B. doth hereby acknowledge. The condition of this obligation is such, that if the said C. D. his heirs, or assigns, shall and do well and truly pay, or cause to be paid unto him the said A. B. his heirs, or assigns, the said sum of- - on or before the — — — day of - and shall and do in the mean time, well and truly pay, or cause to be paid, unto him the said A. B. interest thereon at the rate aforesaid, yearly, and each years' interest always in advance, on the day of ' in each year, and also shall and do pay and satisfy all such taxes, &:c. ; then if the said A. B. his heirs, or assigns, shall and do, [conclude as in J ormer precedents.'] , ,.» To Pay Mortgage Money. Commencement as hefore.'] The sum of —' of lawful money, &c. next ensuing the day of the date of the above written obligation, together with interest on the same sum, at the rate of six pounds for every one hundred pounds fqr a year, without any deduction or abatement whatso- ever, according to the purport and true intent and meaning of a e, at the rate of its !ar, BDch interest to — — — and the — - he period aforesaid, I the — — — . day of The condition of lis heirs, or assigns, » be psiu, unto liim um of £100, on or ^d also shall and do to be paid unto the thereon at the rate the days or times, II and do pay and aid A. B. his heirs, ^c. [as in the latt dvance, ' with interest there- for every one hun- d yearly in advance, during the period iting to the sum of A. B. doth hereby ion is such, that if d do well and truly A. B. his heirs, or — — day of- truly pay, or cause thereon at the rate ^ays in advance, on also shall and do the said A. B. his Jormer precedents.'] ext ensuing the day ;ether with interest every one hundred abatement whatso- t and meaning of a gwxm (n eon^rfiAnclng* 31 certain indenture of mortgage, bearing even date with these pre- sents, and made between the said A. B. and S. his wife, of the one part, and the said C. D. of the other part. Then, &ic. [con- ilud^ as before.] From a Leaee and hit Surety to Pay Rent according to Lease. Whereat the above named M. P. by his indenture of lease, bearing even date with and executed beU 'e the above written obligation, for the consideration in the said lease meuiioned, hath demised to the above bounden G. F. a certain saw mill, situate at, &c. To hold unto th'. said G. F. his executors, administrators and assigns, for the t'jrm of years, from thence next ensu- ing, deteterminable nevertheless at the end of tne first years of the said term, if the said G. F. his executors, administrators, or assigns, ihall give — -— — months notice thereof in manner therein mentioned, at and under the yearly rent of £ pay- able quarterly, in manner as therein expressed, as by the said lease will more fully appear. Now the condition of the above written obligation is such, that if the above bounden G. F. and C M* or either of them, their or either of their heirs, executors, or administrators, shall and do during the continuance of the said recited lease, well and truly pay, or cause to be paid, the said yearly rent or sum of -— — — unto him the said M. P. his heirs, or assigns, by fout equal quarterly payments, of £ each, on the several days following, that is to say, the ■ day of ' the — — day of ' the ■ day of , and the — — day of ' in each and every year during the said demise, or within ' days next after every of (he said days or times of payment, according to the true intent and meaning of the said recited lease, the first quarterly payment to be made on the — — — day of — — next ; then the above written obligation shall be void and of no effect, but if default shall happen to be made of or in any of the said quarterly payments, then the same shall remain in full force. Assignment of a Bond by Endorsement. Know all menj fyc. that for and in consideration of the sum of of good and lawful money of Upper Canada, by G. H. of to the within mentioned obligee, E. F. in hand well 9l!id truly paid at or before the sealing and delivery of these pre- sents, the receipt whereof is hereby acknowledged, he the said E. F. hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set I' 1^1 M^ pi f I J: \ ili I u 1 i\i\ 32 iForma In etmiKunnttna. \ I ■'\ I over unto the said O. H. his executors, administrators and osslgiig, the witliin written bond or obligation, and all principal and inte- rest money thereby secured, and now due, or henceforth to become due thereon, nnd all benefit and advantage whatever, to be had, made, or obtained by virtue thereof, and all the right, title, inte- rest, property, ci^im and demand whatsoever, both at law and in equity, of him the said E. F. of, in, to, or out of the said bond and monies, together with the said bond. To have^ hold^ receive and enjoy the said bond and monies, unto the said G. H. his exe- cutors, administrators and assigns from henceforth, for his and their own use and benefit for ever; and the said K. F. doth hereby make, constitute and appoint, and in his place and stead put and place the said G. H. his executors, administrators and assigns the true and lawful attorney and attornies irrevocable of him the said E. B\ in his name, but to and for the sole use and benefit of the said G. H. his executors, administrators and assigns, to ask, demand and receive of and from the within named A. B. the obligor in the within written bond or obligation named, his heirs, executors, administrators, or assigns, all such principal and interest monies as now are or shall from time to time, or at any time hereafter be due upon the said bond, and to sue and prose- cute any action, suit, or execution thereupon, and to acknowledge, make and give full satisfaction, receipts, releases and discbarges, for all monies secured by the said bond, and now due, or at any time hereafter growing due thereon, and generally to do all and every such further and other lawful acts and things, as well for the recovering and receiving as also for the relieving and discharging of all and singular the said hereby assigned bund, monies and premises, as fully and effectually to all intents and purposes, as he the said E. F. his executors, administrators, or assigns, could or might do if personally present, and doing the same. And the said E. F. doth hereby for himself, his executors and administrators, covenant with the said G. H. his executors, administrators and assigns, to ratify, allow and confirm all and whatsoever the said G. II. his executors, administrators, or assigns, sliull lawfully do or cause to be done in or about the premises, by virtue of these presents, ^diid the said E. F. for himself, his executors ami administrators, dolli furtiicr cuvetiuut, promise and agree to and with the said G. H. his executors, administrators and assigns, by these presents, in manner foliuvving, that is to say, that the within mentioned sum of £250 remains justly due and owing npon the said bond, and that he the said E. F. hath not received or discharged all or any of the said monies due, or to grow due on the said bond, nor [shall or will release, ucnsuit, vacate, or disavo^v any suit or other legal proceedings to be had, made, or Hon and a«t1|gi)8, rincipal and inte- ceforth lo become iiever, lo be had, ! right, title, inlc- oth at law and in (he said bond and hold, receive and d G. H. his exe- forlh, for his and said E. F. doth 9 place and stead idininistrators and nies irrevocable of r the sole use and rators and assigns, ilhin named A. B. gation named, his such principal and to time, or at any 1 to sue and prose- nd to acknowledge, ises and discharges, now due, or at any erally to do all and ings, as well for the ng and discharging bond, monies and and purposes, as he ir assigns, could or ame. And the said and administrators, administrators and (vhatsoever the said .shall lawfully door by virtue of these his executors ami ic and agree to and iralors and assigns, is to say, that the Illy due and owing i". hath not received Llue, or to grow due nonsuit, vacate, or to be had, naade, or jFotiti0 in Conlirsaiicitiji. ik) prosecuted by virtue of these presents, for the suing fur, recover- ing, releasing, or discharging of the said monies, or any of them, without the licence of the said G. H. his executors, administrators, or assigns, first had and obtained in writing, nor shall or will revoke, invalidate, hinder, or make void these presents, or any authority or power hereby given, without such licence as afore- said. Jn witness, fyc. Form of Feoffment after the Ancient Form. This indenture made the — day of — — in the year of our Lord — — — between A. B. of and S. B. his wife, of the one part, and C. D. df of the other part; witncsseih, that the said A. B. for and in consideration of — —i of good and lawful money of Upper Canada, the receipt whereof is hereby acknowledged, hath given and granted, and by these presents dolh give, grant, and confirm unto the said C. D. and his heirs, all, &ic. T*^ have and to hold, all and singular the same premises, with their appurtenances, to him the said C D. his heirs and assigns, to the only proper use and behoof of the said C. D. his heirs and assigns for ever. And the said A. B. and his heirs, all and singular the said premises, with their and every of ihcir rights, members and appurtenances unto him the said C. D. and his heirs, against him the said A. B. and his heirs, shall and will warrant and for ever defend by these presents. [^Add also tht usual Bar of Dower*"] In witness, &:c. ,' •' Livi:ry Endorsed on this Deed. Be it remembered, that on the day and year first within writ- ten, (this deed being first signed, sealed and delivered) full and peaceable possession and seisin of the within granted tenements ami premises within mentioned, was given and delivered by the within named A. B. to the within named C. D. in their proper persons. 2h have and to hold to the said C. D. his heirs and assigns fur ever, according to the form and cAect of the within Wfitlen deed, in the presence of us. A. B. C. D. E. F. "> iiii-'j Livery indeed is performed by the feofl'or coming upon the land, and delivering to the feofi'ee a clod, branch, or turf, there growing, " in the name uf seisin of all the lands and tenements in the deed." 2 Bl. Com. 315. or by the feofl'or delivering the charter upon the land, in the name of livery of seisin of all the Y fiifiirWnt 34 jfovtnu in eouliei^ancfnffv ■^ ' lands comprised in the deed. BL Rep, 138. a. ; or by words only, without any act of delivery, as if the feoffor being upon the land, says to the feoffee, ** Enter you into this land, and take seisin of it in the name of all the land contained in this deed. 6 Rep, 26. b. Deed of Gift of Lands, This indenture, made the day — in the year of our between A. B. of the Lord one thousand eight hundred and township of in the . . district, yeoman, of the one part, and C. D. (eldest son and heir apparent of the said A. B.) of the other part. JVitnesseth, that the said A. B. as well for and in consideration of the natural love and affection which he hath and beareth unto the said C. D. as also for the better maintenance, support, livelihood and preferment of him the said C. D. hath given, granted, aliened, enfeoffed and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm, unto the said C. D. his heirs and assigns, all that parcel or tract of land, he, (describing the premises,) together with all and singular, houses, out-houses, edifices, buildings, barns, stables, courts, curtilages, gardens, orchards, woods, underwoods, ways, waters, water- courses, advantages and appurtenances, whatsoever, to the said parcel or tract of land and premises belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits of the same, and all the estate, right, title, interest, property, claim and demand whatso- ever, of him the said A. B. of, in and to the said parcel or tract of land and premises, and of, in and to every part and parcel thereof, with their and every of their appurtenances, and ail deeds, evi. dences and writings, concerning the said premises. To have and to hold the said parcel or tract of land, and all and singular other the premises hereby granted and confirmed unto and to the only proper use and behoof of the said C. D. his heirs and assigns for ever. In witness whereof the said parties to these presents have hereunto set their hands and seals, the day and year first above written. A Deed of Exchange. This indenture^ made the . Lord __ between A. B. of day I in the year of our yeoman, of the one part, and yeoman, of the other part. Witnesseth that the E. F. of said A. B. hath given, granted and confirmed, and by these pre sents doth give, grant, and confirm unto'the said E. F. all that par- rel or tract of land, he, {describing the premises.'} To have and 10* a. ; or by words jr being upon the ig land, and take jd in this deed. 6 in the year of our ztwecn A. B. of the an, of tiie one part, s said A. B.) of the as well for and in i which he hath and better maintenance, he said C. D. hatk irmed, and by these onfirm, unto the said »r tract of land, Sic. ind singular, houses, 5, courts, curtilages, ,ay8, waters, water- latsoever, to the said ging, or in any wise rions, remainder and e same, and all the and demand whalso- said parcel or tract of irt and parcel thereof, 1, and all deeds, evi- emises. To have mi all and singular other unto and to the only , heirs and assigns for Lo these presents have and year first above ^ in the year of our 1, of the one part, and Witncsseth that the rted, and by these pre- [said E.F.o» and hereinbefore more particularly described, with the appui'tenances,J to the use and behoof of the said E. B. her heirs and assigns for ever ; and the said A* B. for herself, her heirs, ex- ecutors and administrators doth hereby covenant with the said £. B. her heirs and assigns, that she, the said A. B. hath not at ary time heretofore done any act, whereby the said parcel or tract of land, hereditaments and premises, so limited to the use of her, the said E. B. her heirs and assigns as aforesaid, is, are, shall or, may be impeached or incumbered in title, charge, estate or other- wise howsoever. [Add a similar covenant for £. B. with A. B.] In witness, he. Under this form of conveyance, the estate which the trustee takes, is but momentary and under the stat. of uses^ (27 H» 8. c, 10.) immediately vests in the *' cestui que use," so that a pure freehold, or estate in fee simple will become vested in each of (be parties A. B. and E. B. in their respective allotments. Release by a Joint Tenant to a Trustee^ to Sever the Tenaney. This Indenture^ made, &c. between S. A. of of the one part, and C. A. of of the other part ; whereas^ the said S. A. is and stands seised of and entitled unto certain messuages, farms, lands, tenements and hereditaments, situate, lying and be- ing in (he the township of jointly with A. A. spinster, and D. the wife of T. S. of i ■ which said A. A. and D. S. are sis- ters of the said S. A. Now this indenture witnessetht that to (he intent to sever the joint estate of the said S. A. in the premises, and that he may become sole seised of the same, or of such parts thereof, as hj is now entitled to, and may be enabled to dispose thereof, by his last will or otherwise, and for and in consideration of 5^. of lawful and current money of the province of Upper Cana- da, by the said C.A. to the said S. A. in hand paid, at or before the sealing and delivering hereof, the receipt whereof, is hereby ac- knowledged, and for divers other good, causes and considerations, him thereunto moving. He, the said S. A. hath granted, releas- t'd and conHrmed, and by these presents doth grant, release and con* ing. tenances, unto the ,d for the uses here- rnlng the same rc- ;cl or tract of land, \ of the said town- arly described, with ihe said A. B. her ircel or tract of land, of the said township described, with the said E. B. her heirs herself, her heirs, ex- lant with the said E. . B. hath not at ary laid parcel or tract of lo the use of her, the lid, is, are, shall or, large, estate or other- for E. B. with A. B.] tate which the trustee . of ««e«, (27 H. 8. c. use," so that a pure ^ vested in each of the allotments. Sever the Tenanry. j^. of of ^^•®**"'^ • whereas, the said S. ilo certain messuages, situate, lying and be- th A. A. spinster, and . A. and D. S. are sis- mmc« A that to ihe S. A. in the premises, same, or of such parts t, be enabled to dispose for and in consideration rovince of Upper Canj- >d paid, at or before the , whereof, is hereby ac- uses and considerations, ,. hath granted, releas- grant, release and con- :f0vm» in Q^on\^mntim. 37 firm unto the said C. A. and his heirs, all, all and every the mes- suages, cottages, farms, jands, tenements and hereditaments, situ- ate, lying and being in the township of in the district aforesaid, which the said S. A. holds jointly with the said A. A. and D. S. or which jointly with the said A. A. and D. S. the said S. A. is in anywise seised of, or entitled unto, with their and every of their appurtenances, in whose occupation soever the same now are, or be, and for what estate soever they, the said S. A., li, A« and D. S. are so seised or entitled ; and the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same premises ; and all the estate, right, title and interest, both at law and in equity, of him, the said S. A. into or out of the said granted premises, or any part thereof: (o have and to hold the said messuages, farms, lands, hereditaments and pre- mises aforesaid, to the said C. A. and his heirs ; but to the only proper use and behoof of the said S. A. and his heirs and as- signs for ever, and for no other use, intent or purpose whr>tsoever. In witness, &c. Under this form of deed, a joint-tenant may convert his share of the estate into a tenancy in common, so as to be enabled to dis- pose of the same by will or deed. But in order to eHect a parti- (ion, it will bt " ary to proceed either under the stat. 3 IV, 4, c. 2, or he mi :.eed under the stat, in the first instance : al- though it may be desirable in some instances, arising from infirm lieahh, or otherwise, to sever the joint estate by deed, to prevent the whole surviving to the other joint-tenants, by the death of one of the parties before a partition could be effected under the stat. — Joint-tenants may also release to each other. Release from one Joint- Tenant to another. This indenture, made, &c. between D. J. of widow of W. I J. late of ■ .... and sister of S. C. of of the one part, and ihe said S. C. of of the other part. Whereas, the said D. I J. and S. C. are and stand jointly seised to them and their heirs, jofand in all those messuages, &tc. situate in the township of lin the — — district, \Jiere insert an accurate description.'] Now Ithis indenture witnesseth, that for and in consideration of the Isum of - ■— by the said S. C. to the said D. J. in hand paid, at or before the sealing and delivery hereof, the receipt whereof, is hereby acknowledged. She the said D. J. hath granted, released ^nd confirmed, and by these presents doth grant, release and ron- lirm unto the said S. C. and his heirs, all and sin^lar, the above nentioned messuages, farms, lands, tenements, hereditaments and bremises herein before mentioned, to be the joint estate of them, the I ii ,,!, I i f» I V »; :l\ si' I ll: ^i J» ../ y ^ 58 S^xvm In Co. 'jefinncftcg. said D.J. and S.C. with their and every of their appurtenancea, and all ways, &^c. and the reversion, &ic. and all the estate, &(c. ^o /iav6 and to hold the said messuages, farms, lands and premiseg with their appurtenances, to the said S. C. and his heirs, ^o fk only proper use and behoof of the said S. C. his heirs and assigns for ever. [Add covenants by D. J. that she is lawfully seised of one moiety of the premises, in joint-tenancy with the said S. C. '■'■ hath good right to grant — — for quiet enjoyment » . free from incumbrances and for further assurance.] In w'a. ness, &ic. . ? . Releasti of Douer. Know all persons ^ by these presents, thai I, A. G. of, he. ^-^ for and in consideration of the sum of 5^. of good and lawful money of Upper Canada, to me in hand paid, by J. G. of — ^-at or before the sealing and delivery of these presents, the receipt whereof, is hereby acknowledged, have remised and released, and by these presents, do remise and release unto the said J. G. his heirs, executors and administrators, all dow«;r and right, ;Litle. claim and demand of, or to dower, which I have, or may claim of, in, or to all, or any part of the freehold, lands and here- Q.'aments, vihereof H. G. my late husband, deceased, was at time seised, possessed or interested in, nnd also all and all maone'r of action and action«>, cause and causes of action, suits, bills, boDds, writings obligatory, debts, dues, accounts, sum and sums of mo- ney and demands, and every other cause, matter and thing wbat< soever, which against the said J. G., I, the said A. G. ever had, or which I, or my heirs, executors or administrators, shall or may have, challenge or demand, for or by reason, or means of cause, matter or thing from the beginning of the world to the day of the date of these presents. In witness, he. Lease of a House and Farm, day in the year of oui This indenture^ made the Lord ____ between A. B. of C. D. of yeoman, of the other part. Witnesseth^ that foraoi yeoman, of the one part, am in consideration of the rents, covenants, conditions and agreement hereinafter reserved and contained, and which on the part and beha of the said C. D. his executors, administrators and assigns, are i ought to be paid, done and performed, he the said A. B. hi demised, leased, set, and to farm let, and by these presents ioi demise, lease, set and to farm let, unto the said C. D. his eieci tors and administrators, all that parcel or tract of land, & (describing the lot,) together with the frame dwelling-housi in0* r appurtenances, &nd 11 the estate, &ic. (o lands and premises, and his heirs, totk his heirs and assigns 2 is lawfuiiy seised of y with Uie said S. C. uiet enjoyment — r assurance.^ In wii. fiotm^ f u ^onbtmntinQ. 39 1 1, A. G. of, Sic s of good and lawful id, by J. G. of ai e presents, the rece.pt remised and release , elease unto the said J. rs, all dower and right, which Ihave, or may barns, stables, and other out-buildings thereupon erected, standing and being, together with all ways, paths, passages, waters, water- courses, privileges, advantages, and appurtenances whatsoever, to the same premises belonging, or in any wise appertaining. To have and to hold the said parcel or tract of land, dwelling-house, buildings and premises, hereby demised unto the said C. D. his executors, administrators and assigns, from the day of tiie date of these presents, for and during, and until the full end and term of _ years from thence next ensuing, and fully to be complete and ended, yielding and paying therefore yearly, and every year daring the said term hereby granted, unto the said A. B. his heirs and assigns, the yearly rent or sum of £ of lawful cur- rent money of Uj^pe,? Canada, (by two equal half yearly pay- meats, to be made on the day of. and the day of ,) in each and every year during the said term, without any deduction or abatement thereout, for or upon any account or pretence whatsoever. Provided always^ nevertheless, that if it shall happen that the said yearly rent hereby reserved, or any part thereof, shall be behind and unpaid for the space of twenty-one days next over or after either of the said days hereinbefore men- tioned, and appointed for payment of the same, (being lawfully eeiiold, lands and bere-B^j^^^juJed) [or if the said C. D. his executors, or administrators, id deceased, was at anyBjyi assign over, underlet, or otherwise depart with this inden- ; also all and all mannerBj„jg^ qp ihe premises hereby leased, or any part thereof, to any ciion, suits, bill'^jbondSiB.gygQn or persons whatsover, without the consent of the said A. B. IS sum and sums of ino-H|,',j |,g^rs, or assigns, first had and obtained in writing, under his '«natter and thing wlia^'B^i^ ll,e',i. hands, for that purpose ; then, and in either of the said llhesaidA.G.everhad.P - ■ .inisirators, shall or may leason, or means of u.iy of the world to the dayr &.C. . cases, it shall and may be lawful to and for the said A. B. his heirs, or assigns, into the said premises hereby demised, or any art thereof, in the name of the whole, to re-enter and the same to ave again, retain, repossess and enjoy, as in his and their first |aiid former estate, or estates, any thing herein contained to the ontrary thereof in anywise notwithstanding. And the said CD. oth hereby for himself, his heirs, executors, administrators and ssigns, covenant, promise and agree to and with the said A. B. is heirs and assigns, in manner following, (that is to say,) that he lan, oi uic w'— r - jHhe said C. D. his executors, administrators and assigns, shall and fTtfnessem. that '^J'' mjll well and truly pay, or cause to be paid, unto the said A. B. {Farm. _ in the year of ouj "^f the one part, ondilions and ag^«^!J*.ms heirs and assigns, hichonthepartanaoe— j^yg^^l^ payments, c th» said yearly rent of £. by equal ... . . re OK"" -^ •' »'"•' ' °" ^^ ^^ ^^® ^^y* ^^ times and in the man- Irators and assign , "Mgy hereinbefore mentioned and appointed for payment the«*eof. V he the said A* • , |nn(2 also that he the said C. D. his executors, administrators and kd by these PJ^^^Jf." «cMssign8, shall and will at his and their own costs and charges, the said G. U* h^ siM^^' ^^^ sufHciently repair and keep repaired, the said dwelling- Ul or tract ®^.. "^uq^jBousc, buildings, fences and gates now erected, or which shall at I! si i i . I I a ' >^' % M H '.'ii^ i 11 ■ < W h y H m fn 40 iFormfit (n'eonlirsancfiiii. ! .1 ' n,' ! : f f nny time or times hereafter during the said term be erected upon the said demised premises, he the said A. B. his heirs and assigns, upon request and notice to them made, Hnding and allowing en the said premises, or within miles distance lliereof, all rough timber, brick, lime, tilcs, and all other materials whatsoever (except straw) for doing thereof, to be carried to the said hereby demised premises, at the charge of the said G. D. his executors, administrators, or assigns, or otherwise permitting 'iwd allowing him or them, at their like cosis and charges, to cut and fell such and so many timber trees upon some part of the premises hereby demised, as shall be requisite and necessary for the purpose, (da. mage happening by accidental fire, tempest, or other inevitable accident being always excepted,) and further^ that he the said C. D. his executors, administrators and assigns, shall and will at all times during the said term, cultivate and farm such part or parts of the said lands and premises as now are or shall hereafter be brought into cultivation during the said term, in a proper hus- bandlike manner. And shall and will at the expiration or other sooner dcterminaiion of this lease, peaceably and quietly leave, surrender and yield up unto the said A. B. his heirs and assigns, the whole of the said premises hereby demised, in such good and sulTlcient repair as aforesaid, (reasonable use and wear thereof and damage by accidental fire, tempest, or other inevitable accident as aforesaid, always excepted) ; and alsoj that it shall and may be lawful to and for the said A. B. his heirs and assigns, after m days previous notice in writing, twice or oftener in every year during the said term, at seasonable and convenient times in the day, to enter and come into and upon the said demised premises, or any part thereof, to view the condition of the same, and of al defects and wants of reparation and amendment which shall then and there be found, to leave notice in writing at the said demised premises to or for the said C. D. his executors, administrators, or assigns, to repair and amend the same within the space of thm calendar months. And the said C. D. doth hereby for himself, his executors, administrators and assigns, covenant, promise and agree to and with the said A. B. his heirs and assigns, that he, the said C. D. hi. executors, administrators or assigns, shall and willy within three calendar months next after every and any sucb notice, shall have been so given or left as aforesaid, well and sufl (iciently repair and amend the same accordingly, (except as befon excepted, and upon being provided or allowed materials for ih same as aforesaid,) and also that he, the said C. D. his executors] administrators, or assigns, shall not, nor will at any time durinf the said term, puli down, or cause, or permit to be pulled down or make, or cause, or permit to be made, any alteration by cuttioj \ mil. rm be erected upon lis heirs and assigns, ng and allowing on ,ce Uiercof, ali rough ,aterials whatsoever, a to the said hereby C D. his executors, ling 'i»''»daUowing him 'ut and feli 9»ch and the premises hereby for the purpose, (da- ;t or other inevitable :Ur, that he the said ians, shall and will at ,nd farm such part or , are or shall hereafter term, in a proper hus- the expiration or other ably and quietly leave, his heirs and assigns, iised, in such good and se and wear thereof and ,ther inevitable accident that it shall and may be s and assigns, after lu r ofteoer in every year convenient times m tbe said demised premises of the same, and of all „dment which shall then kting at the said demised utors, administratorMr within the space of thru doth hereby for lumseK, ', covenant, prom'sean I'eirs and assigns, that he, Lors or assigns, sha^laj after every and any sh L aforesaid, well andj^ Ungly, (except as beH allowed materi&ls fortW S C. D. bis executon .will at any time durin Lormit to be pulled do«i any alteration by cutuoi i^j^itiKf (n Con^efiiinc(n0« 41 new door ways or otherwise, In the said dwelling-house, or in any of the buildiugs upon the said demised premises, withoiit the con- sent in writing of the said A. B. his heirs, or assigns, for that purpose first had and obtained ; and moreover^ shall not, nor will at any time during the conf'm ".nee of this demise, bargain, sell, assign, transfer, or set over this indenture of lease, or let, set, demise, underlease, or underlet the said dwelling-house and pre- mises hereby demised, or any part thereof, or in any other manner part with this indenture of lease, or the possession or occupation of the premises hereby demised, without such licence and consent as aforesaid. Provided always^ nevertheless, and these present are upon this express condition, ihat if the said yearly rent or sum of £' hereby reserved, or any part thereof, shall be unpaid in part or in all by the space of twenty-one days next after either of the days on which the same ought to be paid as aforesaid, being lawfully demanded; or in case the said C. D. his eiecutors, or administrators, shall at any time during the said term hereby granted, without such licence as aforesaid, assign, transfer, or set over, underlease, or underlet, the premises hereby demised, or any part the/eoi, or in any other manner part with the possession or occnprition of the same, or any part thereof; or if all, or any of the covenants, conditions and agreements in these presents contained, on the part and behalf of tlie said C. D. his eiecutors, administrators and assigns, shall be not performed, fulfilled and kept according to the true intent and meaning of these presents, then and from thrr.veiorth, in any or either of the laid cases, it shall and may be lawful to and for the said A. B. his heirs and assigns, into and upon the said demised premises, or any part thereof, in the name of the whole, wholly to re-entert and [the same to have again, retain, repossess and enjoy, as in his or Itbeir first and former estate, and thereout and from thence the Inid C. D. his executors, administrators and assigns, and all other occupiers of the said premises, to expel, put out, and lamove, this indenture or any thing hereinbefore contained to the [contrary thereof iti anywise notwithstanding. And the said A* doth hereby for himself, his heirs, executors, administrators find assigns, covenant, promise and agree, with and to the said C. 1, his executors, administrators and assigns, that he, the said C ). his executors, administrators and assigns, well and t '\ily paying be said yearly rent hereby reserved, on the days and in the lamier hereinbefore appointed for payment thereof, and observ- ng, keeping and performing, all and singular the covenants and [grecments in these presents contained, and which on his and their jarts and behalves, are and ought to be paid, kept, done and 02 * m I' ,' i< / i I .;• A2 jtfovm» in e<«mliesKiiirfnii. Eerformed. shall and lawfully niAy, peaceably and qAietly Im^ old, use, occupy, possess and enjoy, the said demised preiiiif und every part and parcel thereof, with the appurtenances, dtirii all the said term of years hereby granted, without any la fill let. suit, trot ble, interruption, eviction, molestation, tiindrani or denial, of or by him the snid A. B. his heirs or assigns, or from, or by any other person or persons claiming, or to clai from, by, or under htm ibemi or any or either of them. In mtnen. fyc, ' Othir Common Forms of Cotenant 'iwv >».;■ (trades.) And that he the said C. D. his executors, administrators i assigns, shall not, nor will during the said term hereby graau permit or sufier any person or persons to use, exercise, or cai on, in and upon the said herebj^ demised premises, or any pi thereof, any trade or business which may be nauseous or otTentii or grow to the annoyance, prejudice, or disturbance of any ofi other tenements in the neighbourhood. Another Form. if' \z-^ Kor shall nor will permit, or suffer any person or persons wlioi soever to use, or follow, in or upon the said demised preinis or any part thereof, the trades or business of a tavern-keep victualler, retailer of spirituous liquors, butcher, currier, got boiler, common brewer, distiller, tallow chandler, tallow meli sugar baker, working brazier, tinman, plumber, tripe boiler, seller, dyer, smith, farrier, pipe maker, or burner, or any oi nauseous or offensive trade or business uhntsoever, without licence and consent as aforesaid. Not to Make Bricks or Tiles. And moreover, that he the said C. D. his executors, edmi trators, or assigns, or any of them, shall not, nor will at any or times during this demise, cause, permit, or siiflfer to be tni on any part of the said hereby demised premises, any hrich tiles for sale, (any bricks or tiles thereon made for his or i own use. in building upon the said demised premises, or any iherffX' only excepted) <> *:i Auctions, \"r And also that he the said C. D. his executors, admioistra sr assigns, shall not, nor will at any time during this demise, nttnii. ably and qbietly l«««?e, said demited prettiim t appurtenance*, during anted, witboot any law- moiestalion, Wndranw, I heirs or assigns, or of, J claiminK, or to claim, either of them. Cotenani. utors, admi«i»tr»t*»" •ml »id term hereby granted, 10 use, exercia*', or carrjl ed premises, or any piil f be nauseous or olTen»ive,l • disturbance of any ofthi| iy person or persons whom. Ihe said demised preroiwd siness of a tavern-kcep«i P8. butcher, currier, sow ,w chandler, tallow melw , plumber, tripe boiler, P, or burner, or any otl s whatsoever, without »B(| or Tih$. I D. bi« executors, admiti] [all not, nor will at any iij ^rmit.or suffer to be mai Led premises, any hncki\ Uon made for his or iM [mised premises, or any r is executors, adininistratd iime during thi» demise, -- :9wmn Ml CoiiiiefiAncf tin* 41 mil or suffer any auction or public sale of household goods, or olber property, in or upon the said demised premises, without MkIi. |iiis le said A. B. Imtli ed, or executed, or > act, deed, matter, by means whereof, reby assigned, are, che-ged, aflected, ierwi»« howsoever. )f a common Bond. en A. B. his execu- o, und shall for his well and truly stand (p, the award, order, tc. (or you may say sity of an umpirage) kmed, 09 well by and nd on the part and iward, order, judge, •oncerning, all man- 1 action, sniii, bills, )romi8es, accounts, lions, extents, quar- emands whatsoever, jtofore, had moved, e, suffered, or corn- he award ] pay, or cause to be paid unto the said A. B. and C. D. the sum of - in full, for their damages and costs in a certain action, lately com- menced by them, against the said P. Q. and alsQ, for the costs of and occasioned by the said reference ; and upon payment of the laid sum of £ I do award and direct, that the said parties shall duly execute and deliver to each other, mutual releases in ^vriiing, of all and every action and actions, cause and causes of action, damages, claims and demands whatsoever, subsisting or depending, on or before the said ' day of last. In wit- ness, Sec. , .. Sealed and delivered in the . . • presence of .«^> ' i.<. U-rJ General power of Attorney to receive DehtSy liquidate Ateounta^ tvJh mit to Arbitration, Compound, &>€, ■> 1 .( jj' ■,,■;-/ . Know all men b^' these presents, that I, M. P. of- - widow, for divers good causes and considerations me hereunto especially moving, have made, ordained, authorised, constituted and appoint- ed, and by these presents do make, ordain, authorise, constitute and appoint A. R. of—— my true and lawful attorney, for me 'd ifonti0 in €oti\icsaiic(u0. 47 >e mutually tiH gations to each velvt condition- and truly stand rd, final end and -.i— ai-bilraiori, iteming all and of action, suits, ^d) ; and whert" nrbitration, and pties by the time Is, and in pursu- ed me as umpire, e ; now Icnow ye, osen as aforesaid, arbitration, and d their respective [)f and concerning uid fully consider- do roake this my lat is to say, [1 do lors or administra- iween the hours of known, fee] pay. D. the sum of — - action, lately com- sQ, for the costs of lon payment of the hat the said parties mutual releases in cause and causes of oever, subsisting or last. In wit- uidate Ateounti, tuJh [.P. of widow, ^ hereunto especially nstiiuted and appoint- authorise, constitute vful attorney, for me and in my name, and lo and for my sole use and benellt, to bring to account and reckoning, and to ask, demand, sue for, levy, re^ cover and receive, of and from all or any person or persons wliom- foever and wheresoever, all sum and sums of money whatsoever, which they or any of them shall or may be in any ways indebted unto me, on any account whatsoever, and on receipt thereof, or any parts or part thereof for mc, in my name and to my use, such good and sufficient receipts, releases and discharges, to make and give for the same, as the nature of the case slmll require ; and to liquidate, adjust, compound, arbitrate, release and discharge the same, and on neglect or refusal from or by any such person or persons, to pay all or any such sum or sums of money so due and owing unto me as aforesaid, to take and use all such usual and customary legal ways and means for compelling or securing thu due payment thereof, by action, suit, utlachment or otherwise, howsoever, in my name, as my said attorney shall be advised ; and for me and in my name and for my use, to prosecute and defend all or any actions or suits, either at law or in equity, attachment or other legal process, now brought or to be brought and com- menced by, for or against me, in any court or courts of -udicalure in Upper Canada, and therein to proceed to judgment and execu- tion thereon, or to discontinue or compromise the same, as my ■aid attorney shall be advised, and to enter up satisfaction on re- cord in any or either of the said courti!, or to do any other :i.:r, matter or thing, which shall be required and necessary to be lone on my part and behalf in the proceedings, or carrying on, or de- fending any such action or suit so brought or to be brought as aforesaid ; and also fur me and to and for my use to defray, pay and discharge, all sum and sums of moncy^ debts, dues, claims and demands, which shall or may be justly due and owing fi oni, or accrue against me, to any person or persons whomsoever, on any account whatsoever, and to take and receive for the same such receipts, acquittances and discharges, as the case may require ; and also for me in my name, and to and for my use and benefit, to do, transact, execute and perform, all and whatsoever other acts, deeds, bonds of arbitration, deeds of comp'^f- on, releases, assignments, matters and things, which shall or may arise and be requisite and necessary to be done in and about, touching or con- cerning the management of my aOViirs and > incerns, or any of them, or in any manner relative thereto ; f^nd generally for mc in my name and to my use to do, perform and execute, all and what- soever other acts, matters and things, which my said attorney siiall judge requisite and necessary to be done in and about the premi- ses, as fully and eAectually to all intents and purposes as if I my- telf were present and did the same, I the said M. P. hereby rati- r - 4 W ' I J 48 iroritf0 in ^ona^mntim^ fylngf allowing, and covenanting, promising and agreeing, for myself, my heirs, executors and administrators, from time to time, and at ail times hereafter, to ratify, allow and confirm, as good and valid, all and whatsoever my said attorney shall lawfully do or cause to be done in and about the premises, by virtue hereof. In witness he A. B. Sealed and delivered in the presence of M. P. (Seal) * Revocaiion of a Power of Attorney. Know all men by thete prestntSj that I, M. P. of for divert good causes and considerations, me hereunto especially moving, have revoked, countermanded, annulled and made void, and by these presents (fo revoke, countermand, annul and make void, a certain deed poll or power of attorney, under my hand and seal, bearing date the — , to C. D. of—, given, delivered and executed, and all powers and authorities whatsoever therein ex- pressed and declared. In witness he. Sealed and delivered in -v-^^./Hf M. P. Seal, the presence of > :?■ * -^v ^ A. B. ma '-'ifm: f Or where the Date of the Power of Attorney is uncertain. Commencement as aboveJl all and every powers and power of attorney which at any time heretofore I have given and executed under my hand and seal to and all powers and authorities therein expressed, or in any of them, &c. .^, ,-. . A General Power of AMornxy to Manage and Sell Estates. Know all men by these presents, that I, A. B. of — for divers good causes and considerations me hereunto especially moving, have made, constituted and appointed, and by these presents do make, constitute and appoint C. D. of — — my true and lawful attorney, for me and in my name to enter into and upon, and to take possession of all and singular my messuages, farms, lands, tenements and hereditaments whatsoever,' and where- soever situate in the province of Upper Canada ; and alsOt for me and in my name to make sale of and convey all or any of the said premises, and to sign receipts for the purchase monies, and to sign, seal and execute, and as my act and deed, acts and deeds, deliver good, sufficient and valid deeds or deed of conveyance and assurance, for conveying the said premises, or any part there- of, to any purchaser or purchasers of the same, his, her or their heirs and assigns ; and also, for me and in my name to contract »■' I inHiiili«iii ney is uncertain. and Sell Estatea, :ffwmu in ^oMtvt^ntint. 49 with any person or persons for leasing any of the said premises, and to make, seal, deliver and execute, any lease, or leases, de- mise or grants, for any term or terms of years not exceeding years, in possession, and not in reversion, and at such rent or rents as my said attorney shall think proper f and also, for me and in my name to ask, receive and recover, of all tenants and occu- piers whatsoever of all and every the said premises, all rents and arrears of rent, issues and profits, due and owing, or which at any time or times hereafter shall grow and become due and owing on account of the same premises, and if need be, to distrain for, sue or prosecute for the same ; a7id also, for me and in my name to commence and prosecute any action or actions, suit or suits, as well real as personal and mixed, or otherwise, in any court of law or equity in the said province, in relation to the said premises, and the same to prosecute and follow, or to discontinue or become nonsuit therein, as my said attorney shall seecause; and generally^ for me and in my name to do, perform and execute, all and what- soever shall be requisite and necessary to be done in and about the premises, as fully and effectually, to all intents and purposes, as 1 might or could do if personally present, hereby promising to ratify and confirm all and whatsoever my said attorney shall lawfully do or cause to be done by virtue of these presents ; and lastly, I do hereby revoke and make void all former powers of attorney, authorities and deputations, by me at any time hereto* fore made, given or executed, in any of the matters or things above mentioned, to any other person or persons whomsoever. "^ In witness, &c. . ^ Hi Bond for the Transfer and Conveyance of an U. E. Right. Know all men by these presents, that I " of the township of in the district and province of Upper Canada, , am held and firmly bound unto ' of the — — — of sum of' in the district and province aforesaic*, ■ in the pounds, of the lawful money of the said province, to be paid to the said his certain attorney, executors, admi- nistrators, or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators firmly, by these presents ; sealed with my seal, and dated this in the year of our Lord one thousand eight above bounden of to day hundred and thirty . Whereas the hath, for and in consideration of the sum ni hand paid, agreed to transfer and make over, convey and assure, unto the said .~— — his heirs and assigns for ever, tuo hundred acres of land, to which is entitled as the .i— » of -in U. £. loyalist, when and so soon as the patent for the san;e .hall be l)-3- y.'Vs; m Mi- 50 iFoym0 in eonliri2atuf«tt» ^> obtained from the crown, at the proper costs and charges of the mid his heirs or assigns. Now the condition of the above obligation is such, that if the said ■ or heirs do and shall in ail things, well and truly observe, fulfil and keep the said agree- ment so made and entered into with the said - then this obli- gation shall be null and void : else to be and remain in full force and virtue. Signed, sealed, and delivered > ■■} ' "■ -. ? >; , in presence of ) - > ' > j^- "•* Power of Attorney to Locate the Land, Know all men by these presents, that I ■ of the township of in the district, do hereby nominate, constitute and appoint — — of the .— ^.— of ■ in the district, my true and lawful attorney for me, and in my name, to locate two hundred acres of land, which I am entitled to receive from the crown as the of an U. E. loyalist. Witness my hand and seal at " this — ; — day of . in the year of our Lord one thousand eight hundred and thirty In the presence of ,. ^ j ^! - . i? * ■ Power of Attorney to Execute a Conveyance thereof. Know all men by these presents, that I -.—. of the township of in the district, and province of Upper Canada ■ I, have made, nominated, constituted and appointed, and by these presents do make, nominate, constitute ana appoint .1 of the of ■ in the — — district of the said province my true and lawful attorney irrevocable for me, and in my name, and as my act and deed, as soon as the patent for two hun- dred acres of land, which I am entitled to receive from the crown as the of ■ an U. E. loyalist, shall be procured from the registrar of the province, or such officer as may be appointed to deliver the same, to sign, seal, execute and deliver a good, sufficient and valid transfer deed or conveyance, with such clauses, conditions, covenants and agreements to be therein contained, as my said attorney may think fit and expedient, for conveying and assuring the said tvo hundred acres of land unto of the . of in the district, or his heirs, or to such per; son or persons as may become the assignee or assignees of a certain bond bearing even date with these presents, whereby I am bound under a penalty of pounds, to convey the said land unto the said . his heirs or assigns ; hereby authorizing and allowing my said attorney, one or more attorney or attornies under him, to appoint for tho purposes above mentioned, and jf^^enxu in eonnrifanrinfi^ M id charges of the [tion of the above leirs do and shall ;p the said agree- then this obli- litiain in full force iandf. of (he township ate, constitute and district, my ime, to locate two ) receive from the Witness my hand e year of our Lord anee thereof. of the township of Upper Canada appointed, and by and appoint .. f the said province for me, and in my patent for two hun- eive from the crown I be procured from s may be appointed nd deliver a good, e, with such clauses, lierein contained, as , for conveying and d unto of the lirs, or to such per e or assignees of a sents, whereby I am :onvey the said land eby authorizing and itorney or attornies Dve mentioned, and again 9t hit pleasure to revoke; and giving by these presents fall power and authority to my said attorney, or any of his substitutes . by him appointed as aforesaid, to act in and about the premises as fully and effectually as I might or could do if personally present, and ratifying and confirming all ani' whatsoever he or they, or either of them, shall and may lawfully do, or cause to be done therein by virtue of these presents. In witness whereof, I have hereunto set my hand and seal at . this ' -' -'day of ^-^^^ in the year of our Lord one thousand eight hundred and thirty _~ In the presence of Power of Attorney to take up the J'atent Deed. Know all men by these presents, that I • of the township of .. in the . district, do hereby nominate, constitute and appoint of the — of in the district, . — — my true and lawful attorney for me, and in my name, to ask, demand and receive from the registrar of this province, or such oftcer as may be appointed to deliver the same, a patent deed for two hundred acres of land, which 1 am, or may become entitled to receive from the crown as the _ of an U. E. loyalist, as soon as the said said deed shall be completed, and to give receipts for the same if required. Witness my hand and seal at .——this day of i in the year cf our Lord one thousand eight hundred and thirty ——— In the presence of —— Assignment for the benefit of Creditors. This indenture, made the day of _— . he, between J. S., R. W. and R. G. of, he. of the first part, J. L. of, Sic. B. D. of, &c. and J. W. of, &,c. creditors of the said J. S., R. W. and R. G. of the second part, and the several persons whose names and seals are hereunto subscribed, being bona fide creditors of the said J. S., R. W. and R. G. of the third part. Whereas, the said J. S., R. W. and R. G. have for several years past, carried on the joint trade of in partnership together, and by reason of cer- tain losses and misfortunes, they are unable to pay and satisfy to every of their joint and separate creditors, the whole of their re« spective demands, but in order to render to them the utmost satis- faction in their power, they have proposed to convey and assign, as well all their joint property, as also their separate estate and ef- fects, real and personal, to any two or more of their creditors, in trust for themselves and the rest of their said creditors rateablj', in proportion to the amount of their several debts, reserving for themselves any surplus of their said respective estates, according to their several rights and interests therein, upon condition of i l\ \ Mi it d'^;^^ 52 ;yoirtti0 in eoitlicfiiiticftift; their being Jointly and severally releaied and discharged from their Joint and several debts in manner hereinafter provided, to which the said respective parties of the second and third pans, have consented and agreed, and have chosen and appointed the said J. L., B. D. and S. W. to be trustees for the same accord- ingi}'. And whereast the said J. S. being seised and possessed of, or otherwise entitled to his separate use of and in certain Ian(^, &c. hath proposed to convey, and hath, by indenture beari.ig even date herewith, granted and conveyed the same premises to the said J. L., B. D. aiv S. W. their heirs and assigns forever, for the purpose of sale, anr* then for the same uses and purposes as are hereinafter expr^-'se* and declared^. And whereas^ the said R. W. is distinctly posi>v>s8ed of sundry household furniture, plate and effects, together with a lease of his dwelling house in, &c. all which he hath also agreed to bring in and assign for the trusts hereinafter declared. And whereas, by indenture of lease, bear> ing date, the — — day of - and made between T. B. and J. C. of the one part, and the said J. S., R. W. and R. G. of the other part, the said T. B. and J. C. did demise to the said J. S., R. W* and R. G. Jointly, all those, ifc. to hold the same, to them, the said J. S., R. W. and R. G. their executors, administrators and assigns, from '— — > for the term of — — thence following, subject to the yearly rent of £ payable quarterly, as thereby appears. Noto this indenture witnesseth, that for and towards payment and satisfaction of all the aforesaid debts and demands Jointly and severally due to the said respective creditors, parties hereto of the second and third parts, and for and in consideration of 5s, of law- ful money of Upper Canada, to each of them, the said J. S., R. W. and R. G. in hand well and truly paid, by the said J. L., B. D. and S. W. at or before the sealing and delivering of these presents, the receipt whereof is hereby respectively ac- knowledged, they, the said J. S., R. W. and R. G. in fulfilment of their part of the said recited agreement, have, and each and every of them hath, bargamed, sold, assigned, transferred and set over, and by these presents do, and each and every of them doth, bargain, sell, assign, transfer and set over unto the said J. L., B. D. and S. W. all and singular, the said several lease-hold mes- suages or tenements, ware-houses and premises, in the said recited indentures of lease mentioned, to be demised with the appurten- ances, together also, with the said respective indentures of lease, and also, all and singular, the debt and debts, sum and sums of money, house-hold and other goods, furniture, chattels, wares and merchandizes, bonds, bills, notes, securities and vouchers, for or affecting the payment of money, plate. Jewels and all other the Joint and several estates and effects of them, the said J. S., R. W. id dischar^d from inaflter provided, to nd and third parts, and aprointed the for the same accord- leised and possessed and in certain lanr's, indenture beari.i^r le same premises lo and assigns forever, le uses and purposes nd whereaSf the said hold furniture, plate lling house in, &;c. assign for the trusts nture of lease, bear> stween T. B. and J. 1^. and R. G. of the ise to the said J. S., d the same, to them, '8, administrators and ice following, subject r, as thereby appears, owards payment and demands jointly and parties hereto of the eration of 5s, of law- hem, the said J. S., y paid, by the said aling and delivering reby respectively ac- d R. G. in fulfilment havet and each and I, transferred and set every of them doth, to the said J. L., B. eral lease-hold mes- 18, in the said recited i with the appurten- indentures of lease, ts, sum and sums of , chattels, wares and nd vouchers, for or Is and all other the lesaidJ. S., R. W. :ffwmu in eomirfianc(tfit« 5S Lnd R. O. of what nature or kind soever, and wheresoever situate ■and being, and in whosesoever hands, custody or power, the same lor any of them, or any part thereof, may now, or hereafter at any Itime may come, or be with their and every of their appurtenances, land all the right, estate and interest, property, claim and demand Whatsoever therein or thereto, of them, the said J. S., R. W. and Ir. G. as well jointly as partners in trade, or as separately and Idistinctly in their own separate and distinct capacities, (the wear- ling apparel of themselves and families excepted) ; To have and to hold, all and singular, the said respective premises hereinbefore lassigned, and every part thereof, respectively, to them, the said J. |Lm B. D. and S. W. their executors, administrators and assigns ■upon trust, nevertheless, that they, the said J. L., B. D. and S. IW. or the major part of them, and the survivors or survivor of them, his executors, administrators and assigns, do and shall, with all convenient speed, sell and dispose of all and singu- lar, the respective, ''oint and separate estates and effects here- inbefore assigned, for the most money that can be procured for ilie same, and use their utmost endeavours, by all lawful ways and means, to obtain, recover and receive the same respectively, into their hands and possession, and forthwith convert the same into money, upon and for the most advantageous terms ; and from and after deducting and retaining to themselves, the said J. L., B. D. and S. W. and the survivors and survivor of them, his executors, administrators and assigns, all such reasonable costs and charges, damages and demands, as they shall sustain or incur, as well in the execution of the trusts hereby in them reposed, as also, in re- Itpect to these presents, upon trust, from time to time to pay, dis- Itribute and divide the whole of the remainder of such monies, es- I late and effects, to and amongst themselves, the said J. L., B. D. and S. W. and all the other bona fide creditors, parties hereto o( the third part, their r'^^spective executors, administrators, agents or assigns, rateably and in proportion to the several amounts of their respective debts, to be verified on oath, if required by them; and in case it shall happen, that there shall remain any surplus of the said joint estate or separate estates hereinbefore men- tioned, after all such payments of costs and distribution as laforesaid, then upon trust, to pay and divide the same to and among the said J. S.^ R. W. and R. G. their executors, ad- Uinisirators and assigns, respectively, in proportion, and accord- ing to their joint and several rights and interests therein and thereto. \And for the better and more easy getting in, recovering and receiving of all and every the said joint and several estates and effects now due, owing or belonging to the said J. S., R. W. and R. G. or either or any of them, they the said J. S., R. Wt and I ^ I ■;> ssrrm ^, f S4 Jfwmu in eotOirsanrf mt* R. G. hate, ^nd each and every of them hath named, authoriied, constituted, empowered nnd appointed, and by these presents c/o, f*M\ each and every of them doth freely and absolutely name, au« thurise, constitute and appoint, the said J. L., B. D. and S. W, and the major part of them, and the survivors or survivor cf them, his executors anci administrators, their true and lawful attornies and attorney, jointly and severally, irrevocably in their oii^n names or name, or in ihe names or name of thc^ for, recover and receive, of and Aom all u;ul every person and persons who are, or shall, vr may stand indebted to tl»€m, or have, hold and retain, any property, estate ur utfticts, belonging to them or either of them, all such sum and sums of mouey, estate and effects whatsoever, and upon receipt theieot, or of any part tisere- if, such receipts nnd acquittals for the same to sign and deliver, as the naiuif. cf the case may require ; an*! oj-j non-paymc u or noii-delivtrv (hereof, such actions, suits, attachments, or other legal or c luhubl^? process to commence and prosecute for the recovery thereof, us shall be most advisable, and to compound ■for the same aj .'sail be found to be most adv intageous, and for the Sii>me purposes aforesaid to substitute one or more attorney or attorniei^ uniler them, and the same at pleasure to revoke and others to appoint, they the said J. S., R. W. und R. G. hereby granting their full power, authority, name and names, jointly and severally in the premises, to all intents and purposes, as they, or any or either of them might or could have done therein in caie these presents had not been made ; and the said J. S., R. W. and R. G. do hereby, jointly and severally, covenant, promise and agree, with and to the said J. L., B. O. and J. W. their ex- ecutors administrators and assigns, in manner following, that it to say, — that neither of them the said J. S., R. W. and R. G. hath at any time heretofore made, done, committed or suffered, nor shall or will at any time or times hereafter during the execu* tion of all or any of the trusts hereby created, or any person or persons by their order, or for their use, make, do, commit, or •ufier to be done, any act whatsoever, whereby to relieve or dis* charge any debt or debts, to alienate or conceal any sum or sum> of money, estate or effects, hereinbefore assigned or intended so to be, or to revoke the power and authority hereinbefore given, or to obstruct or hinder the due recovery and receiving the said respective estate and effects hereinbefore assigned, or to relieve or discontinue any process which shall or may be commenced for «^, B^ , T >.i,.y W i«tfa h named, authoriied, by these presents (fo, absolutely name, au- ^., B. D. and S. VV. v'lvors or survivor cf iieir true and lawful , irrevocably in their ame of them the jaid , as the case may ic- and for thfj use and in maniiei*, ond upon to ask, doman'3, r^ iwd every person and }U:d to them, or have, :ts, btionging to then of money, estate and , or of uny part ihere- i€ to sign and deliver, It! on non-paymc/i!. orj attachments, or other and prosecute for the le, and to compound adv ^otageous, and for le or more attorney or leasui'c to revoke and VV. uiid R. G. hereby and naimes, jointly and 1 purposes, as they, or e done therein in case said J. S., R. W. and ovenant, promise and *. and J. W. their ei- iner following, that ii S., R. W. and R. G. committed or suffered, after during the execu« ated, or any person or make, do, commit, or reby to relieve or dis« nceal any sum or sum> issigned or intended so ity hereinbefore given, and receiving the said issigned, or to relieve may be commenced for ^mctm in eotmes^ncdiff* ^5 recovery thereof, or to prevent any defence concerning the same, but on ihe contrary, shall and will at all times permit and suffer, promote and forward, the due and regular receipt and recovery thereof, and ratify, allow and confirm, all such acts as shall be lawfully done therein by virtue of these presents ; and also, shall and will assist in making up their respective accounts, and eluci- dating the same, and do perform and execute all such further and other acts, deeds, matters and things, as shall be requisite and necessary in and towards the carrying on and accomplishing the (r«]st hereby created; and the said J. L., B. D. a:id S. W. do hereby, for themselves, their executors and administrators respec- (iv?!;, covenant, promise and agree, to and with the said J. S., Ii> «V. and R. G. and to and with all and every their said creditors parties hereto, of the third part, thei.- executors and administra- tors, severally and respectively, in manner following, (that is to fftv^'-'that they the said J. L., B. D. and S. W. and the survivors and survivor of them, and the executors and administrators of tuch survivor, shall and will from time to time, when and as often as any monies, estates or effects, shall come to their hands by firtue of these presents, after deducting and retaining all such costs and charges, damages and demands, as aforesaid, well and truly share, divide and pay the same to and among themselves and all the rest of the said creditors parties hereto, of the third part, in rateable proportion, according to the amount of their several and respective debts, and the surplus of the said respective joint and separate estate., according to such shares and interests agreeably to the trusts and to the proviso hereinbefore declared limited and expressed, concerning the same respectively, and for no other use or purpose whatsoever; and also, that all monies collected and received by them for or on account of the said joint or separate estate or estates, shall be paid in the joint names of them the said J. L., B. D, and S. W. to the Bank of Upper Canada : Provided always, and it is hereby declared and agreed, that neither of them the said J. L., B. D. and S. VV. their ex- ecutors or administrators, shall be liable or accountable for more money and elTects than they shall respectively receive, nor for any loss or damage thereto, except the same arise by their own wilful neglect or procurement. And this indenture further wit- nessethf that they the said respective creditors parties hereto of the second and third parts, in performance of their part of the aforesaid agreement, and in consideration of the assignment, pro- viso and covenant hereinbefore made and entered into by and on the part of the said J. L. R. VV. R. G. and of the trust hereby crea- ted, and for other good and valuable considerations them hereunto respectively moving, , Iherefore^ know ye, that for and in consideration of the several sums of money set opposite to our names, being the amount of such composition upon our said debts, to us and each and every of us, in hand well and truly paid by the said A. B. at or before the sealing and delivery hereof, the receipt whereof is hereby respec- tively acknowledged, each of us the said creditors, who have here- unto set our hands and seals for himself and herself, his and he heirs, executors, administrators and copartners, doth by these presents remise, release, and for ever discharge the said A. B. his heirs, executors and administrators, of and from our said several debts, and all manner of action and actions, suits, debts, dues, sum and sums of money, accounts, reckonings, bills, judgments, claims and demands whatsoever, both at law and in equity, which against the said A. B. each and every of us the siiid creditors and our copartners now have or hath, or which each and every of us, our heirs, executors, or administrators hereafter can, shall, or may have, claim, or demand for, upon, or by reason of the said several and respective debts to us severally due and owing, or for or by reason of any other nfiatter, cause, or thing *.vhul:never, from the beginning of the world to the day of the da.e of thestC presents. In witness, &£c« A General Release of Claims, Know all men by these presents, that I, A. B. of for and I in consideration of the sum of of lawful money of Upper Canada, to me in hand well and truly paid by B. C. of be. have remised, released, and for ever discharged, and by these presents Ido, lor myself, my heirs, executors and administrators, remise, irelease, and for ever discharge the said B. li. his heirs, executors [and administrators, of and from all and all manner of action and i-.A •& s-S- 58 i :90tmi$ in eotmrfiarnrdin* jt\ actions, cause and causes of action, suits, debts, dues, sums and sum of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, varian- ces, damages, judgments, extents, executions, claims and demands whatsoever, in law and equity, which against the said B. C I ever had, now have, or which I, my heirs, executors or administra- tors, hereafter can, shall or may have fur, upon or by reason of any matter, caiise or thing whatsoever, from the beginning of tli« world to the day of the date of these presents. In witness, &c. Release to a Ouardian, lUki t; Know all men, by these presents, that A. ''B. of (son and heir of ——" deceased,) in consideration of five shillingg of lawful money of Upper Canada, to him paid by C. P. of ■ his guardian, hath remised, released and for ever quitted claim, and by these presents doth remise, release and for ever quit claim unto the said C. D. all, and all manner of action and actions, suits, reckonings, accounts, debts, dues and demands whatsoever, which he, the said A. B. ever had, now hath, or which he, his ex- ecutors or administrators, nt any time hereafter can, or may have claim or demand against the said C. D. his ejiecutors or adminis- trators for, touching and concerning the management and disposi- tion of any of the lands, tenements and hereditaments, real and personal estate, of the said A. B. situate, &c. or any part thereof, or for, or by reason of any monies, rents or profits, by him receiv- ed, out of the same, or any payments made thereout, during the minority of the said A. B. or by reason of any matter, cause or thing whatsoever, relating thereto, from the beginning of the world to the day of the date hereof. In witness, &c. Release to an Executor. To all to whom these presents shall come, A. B. and C. D. of ' residuary legatees, named in the laM will and testament of -^— — L. P. late of yeoman, deceased, bearing date, the — — — day of — — and duly proved by the executor thereof, R. S. in the court of probate, on the — ^— day of send greeting: — Whereas, the said R. S. as such executor, hath duly accounted with them, the said A. B. and C. D. for all transactions, receipts and payments by him, for and on account of the estate of the said L. P. deceased, and hath duly paid over and satisfied to [ them, the said A. B. and C. D. the full residue thereof, in equal ghares, that is to say, the sum of j£ unto him, the said A. B. and the sum of .£ unto him, the said G. D. the receipt whereof, they do hereby respectively acknowledge. Now thiit\ ■V jfQvmu in eoutiefian cfnu. 59 idt iiiiihH ^^ presents witnesSt that for and in consideration of the premises and of the further sum of 5s, of good and lawful money of Upper Canada, to each of them, the said A- B. and C. D. paid by the said R. S. at or before the execution iiereof, the receipt whereof, is hereby acknowledged ; they, the said A. B. and C. D. have and each of them hath remised, released and forever quilted claim, and by these presents (fo, and each of them doth remise, release, exonerate and for ever quit claim unto the said K. S. his execu- tors and administrators, and all the estate and effects, rights and credits which were of the said testator, L. P. deceased, a//, and all manner of action and actions, suit and suits, cause and causes of actions, reckonings, claims and demands whatso- ever, which against him, the said R. S. his executors, aHministra- tors or assigns, or any of them, or (he estate and effects of the said L. P. deceased, they the said A. B. and C. D. or either of them, severally and respectively, ever had, now have, or hath, or which they, their respective executors or administrators, can, shall or may at any time or times hereafter have claim, set up, challenge or demand in any manner howsoever, for or on account of the said recited will, or the residuary bequest therein contained and expressed, antecedent to the day of the date of these presents ; and for the considerations aforesaid, he, the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant, pro- mise and agree with and to the said R. S. his executors, adminis- trators and assigns, in manner following, (that is to say,) that he, the said A. B. his heirs, executors and administrators, shall and will, from time to time, and at all times hereafter, as far as his right, share and interest in the said residuary bequest extends, and no further, well and sufficiently save harmless, and keep indemni- fied him, the said R. S. his executors, administrators and assigns, and the executors and administrators of the said L. P. deceased, and the estate and effects of the said testator, from and against the payment of all, or any debt or debts, sum or sums of money, judg- ments, costs, damages, claims and demands whatsoever, affect- ing the said residuary bequest, which can or m'\y be henceforth set up, substantiated and incurred, subsequent to and unforeseen at the day of the date of these presents. — (Add a similar covenant from C* D.) In witness, Site. ',•>■■ i''t» Release to an Administrator. .'■-■:»• To all to whom these presents shall come. — A. B. of — — , C. D. of——, the two surviving children of L. B. late of — deceased, send greeting : Whereas the said L. B. departed this life on or about sthe — — day of — , intestate, leaving M. B. his widow Vi . I. I I I 00 ^9i^mtiiiM9,^^tmmfM$' and relict a^d the said A. B. and C. D. t. eir onl}* children liini Kurviving; and letters of adminUlration or all Ihs goods aril chattels, rights and credits, estate and effects, Vere granted io the said M . B. his widow, on the — - day of -^— under th» seal of the surrogate court of tlie ■ district, as thereby appears. And whereat the said M. B. hath duly collected in, paid and ad- ministered the estate and effects of the said deceased, and hath duly accounted with tliem the said A. B. and C. D. for the same, and hath paid and r .iisfied to each of them their proportion of the estate and effects of the said deceased,— that is to say, unto the said A. B. the sum of and unto the said C. D. the sum of , as they do hereby respectively admit and acknowledge. Now these presents witness, that in consideration of the premises, and of the sum of 5s. of lawful money of Upper Canada, to each of them the said A. B. and C. D. paid by the said M. B. at or before the sealing and delivery hereof, the receipt whereof is hereby respectively acknowledged, they the said A. B. and C. D. have, and each of theip hath, remised, released, exonerated, and for ever quit claimed and discharged, and by these presents c/o, and each of them doth, remise, release, exonerate, and for ever quit claim and discharge, unto the said M. B. her executors and ad- ministrators, all and all manner of action and actions, suit and - suits, cause and causes of action and Suit, receipts, payments, accounts, debts, dues, transactions, transfers, savings, reckonings, claims and demands whatsoever, which against hei, them, or any of them, the said A. B. or C. D. or the estate and effects of the said L. B. deceased, they the said A. B. and C. D. or either of them severally and resectively, ever had, now have or hath, or which they, their respective eiecutors or administrators, can, shall, or may at any time or times hereafter have„ claim, set up, chal- lenge or demand, in any manner howsoever, for or on account of Ihe said administration, or the estate and effects of the said L. B. deceased, antecedent to the day of the date of these pru, bu;/d;ii Assignment of a Pew in a Church. ,^/.,j;, , 7%ts indenture mtnesseth, that for and in consideration of the gum of of good and lawful money of Upper Canada, by A. B. of — — > to C. D. of > ' > i in hand, well and truly paid, at or before the sealing and delivery of these presents, the receipt whereoff is hereby acknowledged ; he, the said C. D. hath given, granted, bargained, sold, assigtied, transferred and set over, and \;a*n ij^i*\t3n ^.•- c ft-^'.viuiH y?. lait. jftivmnln CoiilitirfiiiiYcfiifl. 61 i /.w .......i r.r.i>,ti,( . .,r. f| ,, _ ,. by these preienti doth give, criirtf, bargalri, «ell, ussign, transfer and set over unto the said A. B. ati that pew, marked or number- ed 10, situate ond being in the chancel (or south side) of the church of St. John the Evangelist, in the town of Port Hope, in the dis- trict of Newcastle, lately occupied by the said C. D. and his fami- ly ; and all the estate, right, title and interest of him, the said C. D. of, in and to the said pew ; to have and to hold the same, with the appurtenances, unto the said A. B. his heirs, executors, ad- ministrators and assigns, to the intent, that he, the said A. B. his heirs, executors, administrators and assigns, his and their family and families, shall and may, from henceforth, from time to time, and at all times hereafter, peaceably and quietly enter into, have, use and occupy the said pew, for all such uses and purposes as are customary in attending divine service on all occasions, rites and ceremonies whatsoever, in the said church from henceforth for ever ; and the said C. D. doth hereby for himself, his heirs, exec- utors and administrators, covenant, promise and agree with and to the said A. B. his heirs, executors, administrators and assigns, that it shall and may be lawful to and for the said A. B. his heirs, executors, administrators and assigns, from time to time and at all times hereafter, peaceably and quietly to have, hold and enjoy the said pew, hereby assigned to the uses aforesaid, without the let, suit, hindrance or disturbance of the said C D. or his family, or his, or their heirs, executors, administrators or assigns, or of any other person or persons, claiming or to claim the same, or any sitting, or being therein, by, from or under him, them or any of them* In witnesSf fyc. The form of certificate of " Bar of Dower,** given In page 17, as also, that referred to in the memorial, page 18, is intended for the signa- ture of the Chairman of the Quarter Sessions, or Judge of the District Court, under the 50 G. 3. e, 10.—- (See Addenda, page l.)--ifaould the parties appear before either of these authorities. v:v.t . yuwi Wt^r^ h The other usual form of Certificate, when the parties appear before two Justices, will be fouud in the body of tlie w« rk, at page 156, title " Dower." Care shoud be taken to insert in every memorial, the names and abode of the two witnesses to such memorial, thus : " whicirsaid inden- ture of bargain and sale, (or mortgage^ Sfc.) is witnessed by A> B. of Toronto, and C. D, of Toronto. See 35 G. 3. c. 5. § 5.' ; * Page 12, line 16, from the top, for ^Ae Justices, read " two Justices.* Page 24, line 8, from the lop, for mortgagor, read " mortgagee." j Page 23, between the first and second lines, at the top, insert the Rcgister*s addiess, thus : " To the Register of tiie County of .** t,'i ^ fir ;■>.•; 't'"V:' .<;,• » *if ii 'i 'U m V. i i ^idyiiHk'i:i*i jivia . , ..,:^.':iA,.y^ ,rfjt-a aun.s i5»F^?0 -e>y.i ^A ^vJ^^noH . -«»);■' vv\ I'W^S*. ■ *r "i iv/r f-f t , ^*- ' , ' " " '' ■''■'■ :''"'■- X«-:=5Lf*,rl fSi^^r.^ <,y^t>YMh. **'■' "^ ■-■'••'''• -^-.'-i^a-f- .^fe•t•,„^^^ iviivn«,>^ • ■«(» -■ •^■-"••■■~'~~.....^^.,,.„„^^^ ^ _ t.-, -*■ «~— ■.Mlfc.... n' r * • ■ -( • 'I if,',. ;i ' I.. ,y\:i*^ --\ p-,.Vj.wt^H t ;>-h-.i,.i .itx ',7,1.,, 1 •: '•.*.» c^Aip'j .i'f'. : ,,-3: j ,.: ^^, ^i ^j^^ , . ,-,5.wr .v; .■■0 ,.,a7 • CIVIL DEPARTMENT. LIEUTENANT GOVERNOR, His Excellencj Sir John Colborne, Knight CommaQder of the Most Honorable Military Order of the Bath, &c. &c. &c. Private Secretary^ Libittbnant Colonel Rowan. ,^-( 4«*;^>4f\ •;£«',:;;■ LAW DEPARTMENT, CuOTT OF KING'S BENCH. Chief Justice^ The Honorable Jobn Beverly Robinson, „ . _ , ( The hx ORABLB Levius Peters Sherwood. Puisne JudgeSf < „, -^ _ _ ( The » wOrable James Buchanan Macaulay. Attorney Genvral^ Robert Sympson Jameson, Esq. SoVcitor General^ Christopher A. Haoerman, Esq. Reporter^ William H. Draper, Esq. ATTORNIBS AND BAB.B.ISTB11S. v4 .A ./!•. ■ . ^ JIT.- ''• ■> . > J' ' ■ '. rv,^^r;.r. ; * i •"A ; t Lfh t '?Oii..A-r I'-.tl-* . .,- NAMKS ABO RESIDXRCE. Armstrong, Christopher ; Kin{^ston. Bidwell, Marshall S. ; Toronto. Buell, A. N. ; Brockville, Bogert, John ; Brockville. Boswell, George ]V1.; Brockville. Boulton, James ; Niagara. Beasley, Richard G. ; Hamilton. Baby, Charles ; Sandunch. Bethune, Donald ; Kingston. fiurritt, Marcus ; Prescott. Bell, John ; Toronto. Burns, Robert E.; St. Catherines. Baldwin, Robert ; Toronto. Binton, Edmund. Berrie, Robert ; Hamilton. Boulton, George S. ; Cobourg. Boulton, D'Arcy ; Toronto. Chewett, Aioxander: Sandwich. NAMCS AND RESIDENCE. Cartwright, John S. ; Kingston. Cline, Robert ; Cornwall. Cassady, jun. Henry ; Kingston. Campbell, Edward C. ; Niagara. Cozens, William L. Claus, VVarren ; Niagara. Draper, William H. ; Toronto. Duggan, George ; Toronto. Dougall, Benjamin ; Belleville. Dickson, Robert ; Niagara. Dickson, Walter H. ; Dundaa. Elliott, William; Sandwich. Ford, David B. O. ; Brockville. Fairfield, Dariali ; Hallowell. Foster, Colley A. ; Brantford. Freel, Peter ; Longuiel. Grant, Alexander; Toronto. Gamble, Clark ; Toronto. ntiwnitn unn Muvvinttvu, llil; f' l! 'i NAMS8 AMD BK8IOXRCB. NAHE8 AND BEMDENCC. Givins, James ; St. Thomas. Httgerman, Christopher A.; Toronto. Howard, Ch. H. ; Toronto. Hamilton, Robert. *"^' Hatt, John O. ; Ihtndaa. Hamilton, John ; Dundas. Hiibbell, James; BrockvilU. . / Hall, Charles L. ; Niagara. Jameson, Robert S. ; Toronto. Jones, David ; Brockville. Jones, Israel F. Prescott. Jarvis, George S. , Cornteall. Jones, Ormond. Jones, Stuart ; London. Kirkpatrick, Thomas ; Kingston. KirkpaArick, Stafford F. ; PeterboTo\ King, James; To^ronto. Lyons, Joim Low, John ; By-town, Kingston. Malloch, George ; Brockville, Murney, Edmund ; Bdhville. Malloch, John J. ; Perth. Myers, Adam H. ; River Trent. McLean, Archibald ; Cornwall' McDonald, J. R. ; Brantford. McNabb, Allan N. ; Hamilton, O. D. McDonell, Allan ; Hamilton, 0. D. Macaulay, Simon IL ; Bath. McDonald, Rolland ; St. Catherines. McDonell, George M. ; Longuid, Mcintosh, James; L* Original. McKyes, Burrage T. ; Co^ourg. McPherson, Lowther P. ; Halloicell. McMartin, Daniel ; Periu. Notman, William ; Ancaster* O'Reilly, Miles ; Hamilton, G. D. Oliver, Charles , Price, J. H. ; Toronto. •"; Ridout, John ; Torohto. ' ' " Richardson, Charles ; Niagara. Ridout, George ; Toronto. Rolph, George ; Dundas. Kapelje, Patrick W. ; Vittoriut Esors. .-h.^" h u:m..- ;!., Radenhurst, Thomas W. ; Perth, ji,, , Small, Charles C. ; Toronto. Sherwood, Henry; Brockville. ..r": Sherwood, George ; Brockville. Small, James E. ; Toronto. Smith, James ; Port Hope. >i. Smith, Henry jun. ; Kingston. Secord, Charles B. ; Queenston. ; •; Samson, James H. ; Belleville. Smith, David W. ; St. Catherines. Sullivan, Robert B. ; Toronto. Salmon, William ; Vittoria. . y ■ Stewart, John ; London, '^i »♦»> m> •' Spragge, John ; IWonto, ''<' • , ' Strachan, George C. ; Toronto. .■..■ Stewart, Alexander ; Niagara. 'j Taylor, Thomas II. ; Toronto, Taylor, Robert W. ; Hamilton, Q. I). Tiffany, George S. ; Ancaster. Taylor, Joseph; Perth. • ^ Wells, William B. Wilkinson, Alexander ; Cornwall. Wallis, William ; Port Hope. Washburn, S. ; Toronto. Winterbottom, W. B. ; Niagara. Whitehead, M. F. ; Port Ho'pe. Ward, George Charles ; Port Hope. Attorn lEs admitted MichakLma^ Tfi&M, 1834. John Wilson, Johnstown. , -t't ..- Henry Baldwin, Belltvilk. John Powell, Toronto. Easteu Term, ia35. • ' Charles T. Baines. V v--'.' William King Cornish, London. ,i '.'\ \. ,\> Charles Durand, London. Elias Burnham. John F. Taylor, '.;.. u-.ri'U^.».w?35qrs. ii.i.t :^ Vy ,u!.> V 'I -I- i' ,ti' f • , /; » ■ -. / ; .• ..r'.(; ' .i.-f^;. ■ y; . - ■ • H :t I ■II B lO l't"' mtmrnm tvu. jfTS^^^'^T'-^'^ **^^' »-5 <*it70l3^C D RESIDSnCB. r/, imas Wt ; Perth, 3.; Toronto. y ; BrockvilU' .« • '• . ge ; Brockvilk. ' . ; Toronlo. '^or< Hope. >,n. n. ; Kingston, 'f,. . B. ; Queen«ton. - ■■ H. ; Belleville. J. ; S/. CafAerinc*. t D. ; Toronto. n; FiHonak London. ''f ini>" • 2\>ron" Jf ', ics. i.'.i;^'' '■■ Ornish, London, lamdon. MAGISTRACY OF UPPER CANADA. 1 ,■-'■* Esqrs. );'(*»*• , 1 'f I*! "«.'■■ EASVERIf DISTRICT. CommiMtoti, dated 15t% May, 18S&. Samuel Anderson, John Mclntyre, John Cryslei, ^^' Joseph Anderson, Laurence McKay, Benjamin French, Alexander McKenzle, William Morgan, Alexander McMartin, Duncan McDonell, Guy C. Wood, A' nder Rose, An I Jte Blacklock, Allan Cameron, Alexander Chisholm. Hon. John Hamilton, Philip Vankoughnet, Jonas Jones, Hiram Norton, George Langly, ?eter Shaver, John Macaulay, William R. F. Berford, James Hume« Alexander Fraser, John McGillivray, James Pringle, D. Thompson, Duncan Cameron, Simon Fraser, John Duncan Campbell, Hugh McGillis, James McDonell, of Ma- tilda, John McDonald,of Orays Creek, Angus McDonell, John McLellan, Alpin Grant, David Jones, John Cameron, Simon CInrke, Michael Empey. John Archibald, William Bruce, John WaldrufT,jun. Donald JE. McDonell, Alexander McLean, William Cline, Alexander M'Donald, John McBean, Donald Catanach, Alexander McNab, Archibald McDonald, Neil McDonald, Duncan Clark, James W. Powell, Angus Catanach, Esqrs. DISTRICT OF OTTAWA. CommisBion, dated nth March, 1834. John McDonell, George Hamilton, David Tattie, Joseph Kellug, Philip Hall, John Brush, Chauncey Johnson, Charles Sheriflf, Joseph P. Cass, John Cairnes, James Molloy, John Chesser, James Fox, Archibald MoDonbll, of Osgoode, Peter McLaren, Alexander McDonell, Hugh McLachlin, Charles A. Low, William Coffin, John Roe, Peter Sterling, Pradish Billings, Neil Stewart, Daniel Wynian, Elijah Kellogg, Thomas McKay, Matthew Connell, Simon Fraser, George S. Jarvis, BliKha Loukes, Archibald Sterling, Wiltiaui Wait, of Lon- gueit, Esqrs, DISTRICT OF JOUSTOWIf. Commission, dated 2ind July, 1833. Joel Stove, Gideon Adams, ^ • ,; Stephen Burritt, Richard Arnold, -=«• - Hugh Munro, i :<. Daniel Burritt, Uri Scovill, "^ . ■^ Philip Phillips, , Lewis Grant, t Sylvester Wright, Benjamin R. Munsell, Richard Fraser, Thomas Fraser, Alexander Morris, Thomas D. Canipbelt, Rufus C. Henderson, William Wells, Abraham Dayton, Alexander McMi'lan, Bartholomew Cailey, William H. Bottom, William Morris, Freeman Hurd, Henry Burritt, Philip Dulmage, Terence Smith, Jonathan Pulford, John Weatherliead, Justus S. Mciwin, f Archibald iJ*«(Lean, Alphctis JoDbs, Ilfcniy Jonej, Filnathan Hubbell, v ., Dunham Jones, .••' Wilitii;! Brown, * , .( James Morris, • ■ William R. F. Beiford, John McLean, John McDonald, William L. Whiting, Philip Shook, John Deming, William Kay, William P. liOiick.i, Basil U. Cluuch, Jonas Jones, William McQueen, James Mcllmoyle, 1 t 4- '—*■■ '■' ■ — 6 sums^utvHtti Of umtv eanoiMkiir M ■I M :':»' t|| ft : William J. Scott, Peter Schofield, George Breakenridge, Joseph Heartwell, John Leggctt, Walter Atkins, Robert Powell, William Freeland, George Crawford, Samuel Thomas, jun. George Longley, William Weatherhead, William Brooks, Paul Glasford, John Patton, John L. Reade, Hamilton D. Jessup, Henry Bradfield, James L. Schofield, Nicholas Horton, Thomas Sherfield, JohnKilburn, James Shaw, Crosby, John Hobson, Robert Harvey, Hiram Norton, John K. Berford, Richard Johnson, Joseph Goff, Robert Edmondson, Nicholas Brisee, Esqrs. DISTRICT OF BATHURST. Commission, dated I2th November, 1833. Alexander Thohi, William Morris, William Marshall, George John Burke, Alexander McMillan, William B. Bradley, James Dent Wealherly, John Bcnning Monk, Joseph Maxwell, Josias Taylor, Sewell Ormsby, Benjamin Street, John Watson, Roderick Matheson, Alexander Fraser, Anthony Lesslie, Ponald Fraser, John F. Elliott. Cliarles H. Sache, Hem V GrahaB). 'i^A Christopher I. Bell, Robert Stephens, Archibald AicNabb, George Lyon, John B. Lewis, Robert Sheriff, .j r Daniel Baird, . - Henry Glass, John Ferguson, John Berford, Hamet Pinhey, William Rutherford, Fitzwilliam Berford, Daniel Fisher, Matthew Leach, Daniel McKinnon, John Grenvilie, Edward SainuelBradley, John Richey, Alexander McVicar, George Tenant, Edward Logaw, . James Grierson, John Hutcbbon, James Rae, James Wilson, John Le Breton, James Hume, Anthony Philip, ,• John Mclntyre, . Francis Hall, George Williiin 3^ aer, Matthew Connell, Daniel O'Connor, Benjamin BillingJ, Simon Fraser, Thomas McKay, Alpin McMillan, John Grant, Andrew Buchanan, James Mylie, Ebenezer Willson, Joshua Adams, Esqrs. MIDLAND DI&TRICT. Commiation, dated XHth Robert William*, Jolm Ktii'>ury, Thomas Markland, William Crawford, Jacob B. Chamberlain, Solomon Hazieton, Matthew Clarke, Thomas Empcy, ^» J 'lift Thomas Sparhani, Benjamin Fairfieid, Isaac Fraser, Vt^ John Church, Samuel Dorland, Christopher German, Charles Anderson, Allan McPherson, James Sampson, Anthony Marshall, John Macaulay, Alexander Pringle, Colin McKenzie, Robert Richardson, Richard Lowe, John Turnbull, WilliamJohnstonMcKay Jonathan Allan, Jacob Rambough, , John Marks, Richard Hitchins, Orton Hancox, Jacob Shibley, William Ketcheson, Thomas Parker, Peter Perry, Anthony Manahan, Samuel Clark, Archibald Caton, William Bower, jun. Henry Smith, George E Ridley, Laurence Herchmer, Samuel Casey, James McGregor, hn Marks, ichard Hitchins, irton Hancox, icob Shibley, iTilUam Ketcheson, 'homas Parker, eter Perry, inthony Manahan, lamuel Clark, Archibald Caton, Villiam Bower, jun. lenry Smith, ieorge E Ridley, .aurence Herchmer, lauiuel Casey, ames McGregor, Ldam Krien, Archibald McNiel, ames McFarlane, 5eorge Baber, Villiam H. Gray, Archibald McDonald, ot Haul Bank, ohn Portt, idward Fidlar, \nan Munro, iilijah Ritcheson, Thomas D. Appleby, 3ulon>on Solms. Calvin Wheeler, Donald Murcheson. Benjamin Seymour, *eter Davy, Edward Howard, Davis Hawley, William Holditcli, William Simpkins, jmSj^ilviiri^ of ^vmt eumva. Horace Yeomans, William Logie, Alexander Cowan, sen. Thomas Asken, John Strange, Elijah Beach, George U. Detler, Eiqrs. I DISTRICT OF PRINCE ED- WARD. Commiationt dated 1 5th March, 1834. [John Stinson, [james Cotter, I Reuben Bedle, ] Henry McDonell, iRobert C, Wilkins, 1 Simeon Washburn, Ijames Dougall, lAlexander McDonell, IHugh McDonell, ■Griffith Howell, ■Henry Dingman, IGuillian Demerest, ■Andrew Deacon, ■Benjamin Hubbs, ISamuel Solrros, [Iharles Biggar, )avid Smith, David Waif, Vrchibald McFaul, Thomas Nash, )wen McMahon, Donald Bethune, llharies Bocker, )avid B. Stevenson, l^illiam Dougall, }aniel Haxe, )av'i Stinson, lames Thompson Lane, Thomas Flagler, ^aul Clapp, lohn P. Roblin, lohii B. Way, Thomas McMahoii, Andrew Kerr, |ohn Tiane, lenry Van Duzen, lacob Howell, lohn Pepper Dowena, Tames Fairfield, Peter W. Ruttan, George Drewry. Benjamin Weller, Esqrs mWCABTlE DISTRICT. Commisaion, dated 9 th January, 183;). Elias Jones, Richard Lovekin, Alexander Fletcher, Richard Hare, John David Smith, Robert C Wilkins, John Piatt, Robert Henry, Samuel Street Wilmot, Archibald McDonald, Charles Rubridge, James G. Bethune, Benjamin Cumming, John Taylor, John Hutchison, William Ouston, Sheldon Hawley, John Covert, John Williams, William Sowden, David Smart, William Falkner, John Brown, William Shaw, Joseph A. Keeler, John Leston, Robert Reid, Robert Fairbairn, William Warren, Patrick McGuire, John Huston, Eliakim Barnum, James Rogers, Francis ComTiin, Thomas Car, Thomas Walker, John Steel, Richard Birdsall, Alexander McDonell, John Hall, John Burnham, George G. Bird, Alexander Sharp, sen. Robert Brown, John Logie, Cheeseman Mac, John Thompson, George Hughes, Thomas Murphy, Edward Spring Hickson Ephraim Sanford, Edward Duffy, Robert Hamilton, Daniel Griffith, Jackson S. Stevenson, J. Dunbar Moody, Walter Crawford, James Thompson, Robe it Jameson, James Wallis, Alexander McAndrew, John Darcus, Thomas Need, George E. Hill, Robert P. Madge, William Smart, John Hay, David Campbell, Francis Shea, Thomas Masson, John B. Crowe, William Robertson, John Gilchrist, Benjamin Throop, John Crease Bosweli, George Hane, Ebenezer Perry, Robert Butcher, Charles G. Butler, Thomas Reed, Henry Duffield, < Walter Crawford, William Kingsmill, Dugald Campbell, John Knowlson, Allan Wilmot, Henry Mimroe, Asa E. Walbridge,Esqrs. HOME DISTRICT. Commission, dated 9.7th March, 1833. Alexander Wood, WtW au t Cheiv u n , Gfant-PoTrell, Stephen Jfrrvis, William Thompson, William Tyl er, ■D 'A w y B oul toii , iFfnnes Milus,' lame& J'iUgibbon , CianoiH Hen suit; Fiudcrliik Starr JaitIs, ■ Robert Charles Horner, Tnhn Rsihir, Wm i B e nji Rubi i ntT lt, lohn SaoWr- Christopher Widmer, ^ ^ ■awxMnM ■«M*i I' 11 f if'j! I s jW^0(0tteics of ^l^iiiiet .^aTnerOiBi4«iiJ3ou«)iler Wi tt iu i M DM ii lw p, ilobert Stanton, John Gamble, W i l li am i ^rwi d f oot. Win. Jolmsmi, Georginc, WtHi a ni Tu rn e r, Wrtliam ^ook gh on k, ArstTSmaTle^, jn * ■ m Peter MelJmtirfd, ^' Hector y, 4iiarue, Jift»«ph4-7nfter, SUuuiuel Ridsnt, ClbafWs Coxweil Small, JohuXtsmon, WiHwrnBtrtBall,- • Benjamin Monger, JosepiL^AdMIMOR; ^ John Borlase Warren, AlefluiiUui Ainiiliung, -^ •CUoFge-Rmnssy, WillMin Wuudlir, TiMHrntrGmftmCTsa! An Ja«ie« W. «Smn!on, £(luardO'BrieD, ^Im-Cv-WhtW, CdQuu^Fnvel'^0!rvis, Malcolm-Ros», Arthur Carthew, Clliiiilo» Stinliiy Menk, JttiiiHB Ailniin, RbLch Oln err William B» Mtyi ty, Wm. VVuiieii BAluTTin, ' X» ftw>9 Wii i i i i ett, William Gamble, ^ George Monro, AfMlrew-Mefeer, Thuin.!* Birrhirll, Al«> * awd tt«.M q n if y, IWbAfl GiiieS^, Joim Sp r ea d Bw rtfTwin, Jmtte^'t'^ deriok Strritlt,- Itetef Puto w oH , James G. Chewitt, y. Thomas Gibbs Uiil'Mit, teaaEfc.»>'-HiTra, George T. Dennison, ft o k ert UM ^ iu g, ■t^. John Scarlett, Benjim ii n T tiwHie, Richard Gammer, Jul*»'Bdiiin;, James Baldwin, Th a win Bi riil ll Tp s, WHthmr PimnhntI «;», Franris Tiiicumhc, rihitrlai Fot k e r g tW, Allan Mnfctan. Searbo- rough, Rubprt PttMglii^-Hamil- ton, Wiiiiam Barnei; Jolm MiU» Jnekson, Fxauci&O sburng , WilUaorCltbbai Thomas Mossington,)j£2- don, Wm. Bagshaw, Brock, Matthew Cowan, B limiJ €nnl. DISTRICT OF •ORE. Ed wa ni By a l l, Th a ain i M a tf wi ka y , J Orillia, Te A ntlinny Audfw M ilohHI, S ^um e l B i< t l iunl3o n, Fra», cwnseth, Ra bot t Ka ii uu ii iLiiAlj^uu , MiiyiMii.kXi'lil'li|i, Edward W. Thompson, Esqis. CommUaiottt daltd ind April, 18S9. William Crooks, John Wilson, . . , James McBride, , ^ ' Hugh Wilson, 'William Ellis. ' V;^ , James Racey, ,, .,", Matthew Crooks,. Daniel O'Reifly, ( Y' ' John Secord, f* Philip Sovereign, Manual Berfield, / William Proctor, ..f Thomas Le|«ard, .^^ ' Thomas Smith, , William Holme, Eliiau Secord, Robert Murrav, Richard Beasley, William CbUholm, William Scollick, William fmnlop, William Uichardson, Thomad Stephens, William McKay, Robert Land, Peter Hunter Hamilton, William B< Van Every, Benjamin Wilson, Nathanlol Bell, Alexander Proudfo'^*. Henry Trout, John Chalmers, John Sterritt, Thomas Fyffe, Hugh Crene, Charles Prior, John Brewster, John Sprout, Daniel K. Servos, Daniel Lewis, Absalom Shade, Alexander Roxborough, Edward Richie, David Arch. McNabb, Michael Aickman, Edmond Huntley, Geoffry Lynch, Colin Campbell Fcrrie, AsmandChai les Huntley, ■ Haycock, Henry Strange, Williuin Heath. Vi.i DISTRICT Or«0RS. Cotntnitsiont ((aNrf ind April, 18Sa. Villiain Crooks, bhn Wilson, aines McBride, , lugh Wilson, ,,,., William Ellis, '?,;.. rames Racey, Matthew Crooks, )aniel O'ReUlj, _ rohn Secord, r^ Philip Sovereign, \Tnnu' Crowell Wilson, Lieut. Chris. Jones, R.N> James Cooper, Samuel Birdsali, William M. Ball, Esqrs. rr DISTRICT or I.0NDOIT. Commission, dated ibth July, 1839. Peter Teeple, Thomas Hornor,. James Mitchell, Joseph Ryerson, Thomas Boulby, • '; Mahlon Burwell, '••■, George C. SalaioOi. ' " James Hamilton, James Graham, James Racey, .Lesslie Patterson, lira Schofield, Henry Warren, John Boslwick, John Hatch, Solomon Lossing*, Israel Wood Powell, William Wilson, Andrew Dobie, Kdward Allen Tutbot, Duncan Mackenzie, Henry White, ' Isaac Draper, '^ James McKinlay, Jacob Potts, jun. John Kirkpatrick, Duncan Campbell, Heni-y Carroll, John Waddell, Gilbert Wrong, Samuel Edison, * • John McDonald, Duncan Warren, William Robertson, John G. Lossey, John Burdick, John Scatchard, Benjamin Wilson, Charles Prior, John Brewster, Peter Hamilton, Colin McNeilledge, i •V^'x riSi 10 ifiuiiffiitvffrfi of upmt €nnaw. ii '♦ iiih Captain Andrew Drew, ^A^jor James Barwick, Jatiies Ilultnn, Pef^r Carroll, Jaintts Ingersoll, }(. 'in Burwell, .V tr* Guy Kirkland, A- 'ft. T Richardson, P 'ou'nt, oseui; . blench, Jimes Nevills, &amiiel Eocles, William Young, Colonel Alex. Whalley Light, John Warren, Captain Robert Dunlop, Edward Duller, Captain Philip Graham, Christopher Beer, Thomas Kadcliff, Edward Ermatinger, James Clement Crysler, JohnMcFarlane, Captain Robert Johnson, Eliakim Malcolm, Benjamin Springer, John Boys, William (Jordon, Zona, John Philpot Currin, Walter Mackenzie, Henry Allison, Richard Noble Starr, Esqrs. WESTEBir PI8TBICT. Commiarion, dated lUh November, 1833. Francis Baby, Jean Baptiste Baby. George Jacob, William Duff, John Dolson, William McCrea, William McCormick, William Jones, Israel Smith, Claude Gouin, Isaac Bell, George Jaeob, jun. William Berczy, Jean Baptiste Macon, Charles Eliot, John G. Watson, Charles Berczy, Lewis Gordon, George Kirby, ■4!>.>. ••*. *i.fi •is ■. V.; Dunoan McGregor, James Askin, Francis Caldwell, Matthew Elliott, Charles Fortier, William Elliott Wright, John Prince, Joseph Woods, Robert Jones, Duncan Warren, James W. Little, Joseph Smith, Alexander Walker, Henry Jones, sen. George Hyde, Alfred Toulmin, Robert Watson, Frome Talfourd, Henry Jones, sen. George Durand, Alex. Thomaii E. Videil, Field Talfourd, Lewis Rendt, Harry Alison, Arthur William Freear, - Rothwel), John Scratch, Prideaux Girty, Wm. Ambridge, Esqrs. ^ A I* .1 •« M . fi'i'^^' ' - ., . • v .. ^►tff?-^ '. ., .=M-V;. ., . •. ..» J ^a^j! jj 'c b . I. ,1 1 • '" . - > ^ .- .X. .i< ••• :;'*iU'. r v.fiir.t^t, Duncan McGregor, James Askin, Francis Caldwell, Matthew Elliott, Charles Fortier, William Elliott Wright, John Prince, Joseph Woods, ^ Robert Jones, ^^ Duncan Warren, James W. Little, Joseph Smith, Alexander Walker, Henry Jones, sen. George Hyde, Alfred Toulmin, Robert Watson, Frome Talfourd, Henry Jones, sen. George Durand, Alex. Thomas E. VideilJ Field Talfourd, Lewis Rendt, Harry Alison, Arthur William Freear, - Rothwell, John Scratch, Prideaux Girty, Wm. Ambridge, Esqrs. RiJuiri*^ li^tiiiSiu 1} h /" .1 <1 • .T -« .*:HJ>-'... i' , >«i f'O'l ''.^ i41. It'. '-'.r 4- '■>'<• J Iv: -..-/I ;!r-^)cnt-:fe - • ' .^.,rt'.")^ '■■> ' './ • J > » . ,.i Xi ■■-. 1 kt .. .1 -• ■ -" . ., ... .tf *• r > , - ' ■ -I ■ . • J jfr GENERAL INDEX ;>,.' :. Page. { Accessory i InfofBiation against 2 Warrant ib. Commitment , ib. Wartant against accessory, after / » the fact { ^ Warrant for receiving stolen goods*. ib. Commitment for the misdemeanor ..ib I Acquittal .4 Record of. 64 i Action against Justices 4 Notice of action ib. I Acts of Purliament 7 Adjournment 86 Administration, Letters of.. . . .79 Administrators 367 'Affidavit 7 Form of, to continue recognizance. ..8 A flray i b. Information .9 Warrant ib. Indictment 10 Agricultural Societies ib. (See Addenda) 1 Alehouses ll Form of license ib. , do. recognizance... Wu Information for selling without i .„ license \ Summons....... ib. Conviction.. 14 Distress warrant ib. Commitment ib. Aliens ib. Allegiance 16. Oath of. ib. Amendment 17 Appeal ib. Notice of. ib. Recognizance ^ 18 Appeal, Court of. ib. Apprentices 19 Differences between master and ) ^o apprentice .................. \ Proceedings at sessions, under 5 Eliz. 24 Form of an indenture ib. Summons against the master 25 do. against the apprentice. . . .ib. Recognizance 26 Order of discharge ...ib. _ . , Page. Complaini of apprentice, on 20 O. ) „, 2. c. 19 ?27 Summons. , .......28 Discharge of the apprentice ib. Complaint by t>ie master, under the \ o^ 20G.2 c. 19 }29 Warrant against a disorderly ap- ) -^ prentice ^*^' Commitment ib. Discharge , , ,30 Ass vrnment ib. [See Addenda'\ 1 Appraisers, Oath of. ..129 Approvers 31 Arbitration ib. Form of an agreement 33 Award ib. Arraignment 34 Arrest by warrant ib Wittiout warrant 36 By private persons 87 Form of the warrant ib. Arson......... .......39 Information 40. Warrant ,ib. Commitment for further examination ib. do for trial ib. Articles of the Peace 41 Information. .43 Warrant {b. Rucognizance to appear at the ses- ) . . sions. ^^'* Recognizance to keep the peace. ...ib. Commitment fur want of sureties. ..ib. Supersedeas ....46 Release of surety ib. Discharge.. , .46 Form of articles ......lb. Assault and Battery. 4"^ Information... .il,. Warrant 43 Recognizance ,. ..ib. Commitment for want of sureties, 7 .. till the sessions. y°' Indictment for a common assault.. .49 do. aggravated ...ib. do. assaulting a constable. ..ib. Assembly, Members of 50 Town member's wages. [See Ad^ ),, denda] \ • \ \' Jl Index. * ill i I li-- 5 1' I •o \-vi' !■! 1^ ^:t. 5 I m ! Tftge Assessments 50 Form of • '>6 do. writ to irll A7 do. theriir'tf dectl ib. Assessors 58 [See A,ldcnitn-\ 14 Assizes 58 Attainder ' 59 Auctions C)0 Autr«fuis acquit Gi Autrefois attu'iit 65 Aulrefuis convict C6 Itccoril of ib. Bail 66 Uecogiiizance of ...273 Dunishnient 69 ConiiniliTicnt for return 453 Banks, destroying 69 Barratry 1> 70 Bastard ib. Bawdy house 71 Iiiformalion ib. Warrant ib. Reco«fni7.aiiv:e to prosuciite 72 do. to nii[)ear ib. Comtnitinont ib. Indictiucnt '. 73 Beef and Pork ib. Bench Warrant 75 Focmof ,., 76 f^'i tor feloa^ ., ib. Benefit ul' Ciergv 77 Biganvv ib. Comiiiitinent, .•«78 Billiard Tables ib. Black Act 79 Blasphemy and Profaneness...ib. Boundary Lines .8Q [Ste Addenda, "line /cj»ee»"] 3 Bread, Assize of. ...80 Buggery 81 Burglary 82 Warrant S(i Butter and Cheese S7 Butchers 89 Calendar of Prisoners 90 Capital Punishment ib. Curriers ib. Cattle 91 Cattle and fences lAddcnda} 12 Census ....93 {See Addenda'] 15 Certiorari 95 Return of yg Recogiiizauce ou it^ Chains ib. Challenge to Fight. , ib. Indictment '■•.«.. .......1(10 C liampei ty lOl Chance Medley ib. Cheats 102 Warrant against 104 Children 105 Churchwardens •...ib. Oaib of. ib. Clergy Reserves lOG Clerk of the Peace ib. Hi« Fee log Appointment of deputy I09 Coin ib. Commitment for uttering couuterfeit 1 1 1 Collector of Rates .....ib, Condaion of bond. ............... lb. [6'er Addenda] 16 Information for distresi warrant.. .112 Warrant of distress ....ib. Commissioners, board of. .... .21 [.See Addenda.] Tlieir fees. ISee Addenda] 23 Commitment 113 Form of, in felony ]|7 For re<«xaminalion.... 267 Upon a conviction where the pun- } ,.„ ishment ig l>y imprisonment.. 3 Do. in default of immediate pay- / .. ment of a penalty, y' Do. within a limited lime 119 Common Schools............ ib. ISee Addenda] ...26 Common Scold 120 Compounding Felony ...121 Indictment for ib. Compounding, other Offences. 122 Confession ..123 Conspiracy .ib. Indictment for.. ....124 Constable 125 How appointed ib. Power and duties of their office 126 Demand of warrant 6 Indemnity and protection .128 Of his punishment...... 129 E.xpense8. .....ib. Appointment of a deputy ib p«fp, 93 15 95 98 m ib. Il«^.<« ■>••••••• ID* .100 lOl ib. 102 104 , 103 ib. ib. ••..106 ace.....«....ib. 108 cputy •...109 ib. ttering couuterfeit 1 1 1 es .•...ib. i , ib. .•••..•••.••••••In iitrett warrant. ..112 gg ib, board of 21 Addenda-] 23 113 y 117 on 267 I whcrelliepun- } ..„ mprisonment.. ) >( immediate pay- ) ■. iUy y iiiled time 119 Is ib. 26 ^elony 121 ,.... ib. >ther Offences. 122 , 123 ib. 124 125 ib. ■ of their office 126 ant ^ rotection 128 nt 129 ib. a deputy ib I?rDEX. Ill i . Page. jiimmoni by « conitable 130 f Murii thereof ib. V'lvrant fer nsitnuit on constable.. ..ib Commitment of constable for an ) ^^j eicape .J Iiidictmeut fur refusing to serve... ib. !oiistitutional Acts .....132 [S«e Apiteiulix] 1 lontenipt. •■...••....••.... io7 Cootmitment for ••.••.••••.. 138 ;;onviction ib. General form of 139 Coroner, f 141 [Su Duties of Coroner] Coroner's names 1 Coroner's court 2 Sudden deaths 3 Of crimes. 4 Of dcodands 5 Coroner's fees.... 6 How discharged 7 Proceedings by the coroner 8 Recognizance : 13 Inquisition on a lunatic M Felo do 86 ib. Accidental death 15 By drowning 16 Piatural death ib. Found dead > ib Excessive drinking 1(> Inclemency of the weather 1 V Death in prison ib. Falling out of a boat ib. Murder ib. Manslaughter 18 Se-defendendo ib. Drowning a bastard 19 Throwing down a privy ib. Against aiders, ^c ib. Warrant to summon u jury 20 Constable's summons ib. Warrant to bury after a view 21 Do. felo-de-se. •••... ib. Do. without a view...., ib Do. another form 22 Do. do. ..ib Do. to take up u body ib. Do. to apprehend fur murder.. 23 Commitment ib. Summons to a witness ...24 Warrant for contempt ib. Another form.. 25 Commitment for refusing to sign information 26 Commitment for refusing to enter ) .. into recognizance )' ' Forms of recognizance 28 Certificate of bail 29 q2 Page. Costs 14 J F''"..! oi' award 142 Dislrcs i wnrrnnt ib. CoiisJiiljle's return 143 ('unimitiiiciit >b. County Courts 144 Court of Requests ib. [See Appendix] 18 Crintinnl Law .....145 Currency .ib. Customs ib. Debtors, Detention of 148 [See Afideiida] 1 Form of aliidovit. . ■ 148 Du. ofwurrant ...ib. Fees I4y Deer =...ib. Deliverance, VVi ...274 Deserters. [Sa uu ] DetaiiiingWarrant. [See Debtors.] Distillers 14- Warrant to apprehend... 1<>1 Estreat 161 Form of. 162 Evidence 162 Examination 164 do. before two justices... ...27U Execution 164 Executors 367 Extortion 165 Indictment for 166 Fairs and Markets l'"7 Form of petition for a charter,. , . , , 168 I. 8 a I I A li ■MOM IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 1^128 Ui m m |Z2 Li «£ U u U& 1.4 ■ 1.6 <^' A V, HiotDgraphic Sdeeces Corparalion ^ ;\ ^. 23 WfST MAIN STMIT WIMTIR.N.Y. USSO (71«)l7a-4S03 ;^^<^- 6^ f \ IV Index. ' ii Fiilio pretence! ;.< ' [See Cheats.]...,, 102 Felony ,,,,,,, j,ih6S fences [Addenda] 12 Fence Viewers , . . •,• .169 iSee Addetula} ...,'.'......9 Ferries ^ .. .169 iDfSft ••••••••••••«#•»,•••• •IDs Fire .::.::.^aro Fireworks, ib. lAforination Tor selling ..171 do. for throwing. ib. Fishery, white ....171 Flour ITS Oath of inspector ib Forcible entry and detainer. ..173 Record thereif 176 Mittimus 17 Prf^cept to summon a jurj 178 Juror's oath ...................... lb Inquisition ......«*.. 179 Warrant of restitution ....■.« ib Indictment for a forciblei «ntry ) jq^ and detainer... 5 Foreign Service.. 181 Forestalling ib. Forgery ....•...•.•■»•.••. .ib. Fruit Trees ••... 183 Fugitive Felons. ib. Warrant .....184 Mittimu .185 Gaming. 185 Warrant to apprehend, under } jg>. • •••191 Habeas Corpus ........ •••..219 Hftwkecs and Pedler«. •«••». 4192 Information ....*.. a«..*194 Conviction i..ilM Warrant of distress. «.*....jM»4'«s>«ilb; Constable's return... ...f.lb (Commitment • <..«.,.»1M H«irs and Devisees. ..••.. • .196 Forms of cotice... ..198 Ipertificate of clerl( of the Peace.. . 190 Pile.! Highways , M Oath of surveyor of streets ^l Appointment of surveyors ;|[l ' Application to open a road jj Surveyorji' re|>ort ............. .,.^\ Notice thereof jJ Notice of opposition.* . . \^\ Sessions order for opening a road .,M Do. when opposition made... .2(||)| Conveyance of tlieold road '^l Notice of further claim for compen'o. ib. [ Notice to appear at the sessions... ,2lo| Order thereon, j^l Information for statute labour i|,J Summons 211 1 Conviction .....'.... ji,, I Distress warrant'. ............... ..iJ Costs ....2I2| Information against a driver for ) .1 negligence y "' Information against the on/ner i of a cart for not doing statute > 2U| labour. ) Do. fbr incumbering the road ib,| Do. for not reinbving a fallen tree..,ib,l Do. against on inhabitant for) „ I n«n-paym>nt of composition.. ) "\ Overseer s oath verifying his acc't. 2lt| Information against surveyor for ^ not summoning person liable > h | to statute labour. ....,.,... . \ Do. for neglecting to ajpitly com- 1 „,. . position money \ * ^ Summons ib, Commitment ..:.'..^......ib,| Indictment for a nuisance on tlie ) nigi highway I '"' Do. for stopping a watercourse, .^...ib.1 Homicide, • 220l Do. justiiable.... 22l| Do. by roisadfetttora..-* ..ikl Do. self-defence..*.......... Do. manslaughter. .......... .32) I Do. murder ...«.....« ib.[ Do self-murder*. Commitment for auirder...* 22i| Horses 226| Warrant to apprehend a horse } stealer..... ) House of Correction .|1)> H«ie-and-Cry..«*V«*-*-- ''''I WaiYinttoUvy........ ....8 Imprisonment for Debt. [Sce\ n Addenda] ) Indecency .^. . . . 23" I Indictment for » . ,f . ... • ••*• I ^'. u tmtiim «-»■* 'i''^y IlHPIiJfLr Page. Jidiani ^f \[Set Addtnda} Jadictnicnt ,••«■••••••••■• '^^ |0f the finding by grand jury. |of granting copy « bdieeDt Debtors... •••ib. to * —237 hforiBatioB^ 4 , •«• General form of, for penalty 239 jns and iDn^keepers ....... ..ib. iDetAlriUig j^oodt for reckpoing ...,SMO I Ooodt stoWrt • . •...••••••••••••. .^^i IcotoMftbre'i warrant to give no- I 342 tice of licensing day.....,,,,,. V iKolice to Itan-keeper8.....^.rt«_»,«f tS^ iPetilion for a licenscj. .,•....."•■.• .jb ICertificate of character ib jchaiwan'i «;ertiHcat^.».»« •»»• ••••*^ JRecognizance • » >'' [certiBcii|e. by C.^I^,,^^..« .... ^ . . .246 iKorm of license* •«*••> .....ib J A»«ignnient. . .' .". • • ib [liiibrmtitioa agauut aoinn-Iueeptr. S41 |Becogni«aaGe to prosecute .......... ib. I Do. , by,a wUp«?« ^^ jiSiiraincnf to ti,i<(ice of criroimal iufurmiition ) ant removal of goods ib. Tenant holding over 287 Deserting tiie premises ........... . ib. Rent recoverable by executors. ....iV>. Notice to quit ..lb. Warrant to distrain 288 Inventory of distress ib. Notice of distress ib. Appraiser's oath^ .^.289 Form, of .appraisement ib. 28tf Informatioo . for fraudulent re- moval of goods........... .. Summons, thereon * ib. Conviction 29U Warrant of distress.... ib. Constoble's return 2tf 1 Commilmcfit ibi Information to ground a warrant ) to search for goods fraudulent- >292 )y removed ) Warrant thereon ......ib. Rec ognlaance on appeal .......... 203 Information when premises deserted 294 Notice to be affixed........ 295 Record of possession ib. ISee Addenda} ......3 Larceny i * » *S'.i%fe**4S®6 Graud larceny ......**<.B97 By servants ...............ii.wfi.SQO Banker's clerks .»»..ib. Carriers ....301 Mdlers rv''^^ Fraudulent wagers. 'i * i'. . ib*« Card playing. ....'•. n .' ;'Jii<3(A Ring dropping.... ),fc..».<*i.lb. Petit larceny 303 Warrant ....304 Law. ...«..........«...•••.•"• Libel ....•......•..*•••••• ••)b. Information for ,,..... ....JiOtI Recognisance to appear .307 Indintnient ....'ib. Line Fences [Addenda] . > > • • «S ra 28 i f9 v-». ■:1i .,f ■i u ' M! ll ¥ ■ ■« te ^l ... v.- ■nil Hi rtiiiUiiiiha^M VI .jc Index. ■\ 1.. IK' i I ife : t t:*jfc-. Lord's Day m. , .,. * .307 InfurmaUon for iravcllinir on, .^.p«.309 Do. for exercising k trade . , ib. Warrant to levy penalty • . . . ib. Maiming . . . ^ . . ^ . ^ . d ■> ... • ,310 Maintenance .... • .^^l.^l . i .311 Mandamus.. 1 . . , . . • . . ^.. . . . .ib. Maoslaugbter. \Set Homicide^ Marriages «•••«.. 23 1 Sessions' license 814 Marriage license...... ..........tSlS Certificate list...., ib. Mamed Women. [See Dower] 916 Militia 317 JnCormationftNMHt enrolling name 823 Do. for not warning militia man. .. .ib. Do. for being absent at training. ..324 Do. inspection of arms ib Do. for insulting conduct wlien on ) .. duty .,.* S Do. for withdrawing without leave. 825 Do. for not joining company in ).l time of war...... ..^.a*'.... ) Do. for selling arms .ib. Do. for buying do. ib Summons .826 Commitment ...... ............ ..ib. Distress warrant ^7 Baggage warrant.... ....ib. Mill Dams. ....•■••.•.«.. ^ 4328 jviiiiers . ..^ ..^ •, •«.• ■<§..>■ 4) . • . . • .ID. Misdemeanor ............■■■ib. Misprision ef Felony. ..*... .329 Money • « . .^v*'^ «•.•«• ...^i.*.. 330 Murder. [See H331 Ne^ k Currency......... ib. . Jr UJ?v ■«•'•■' »•• •.••..........• I". .vn^tY^ A^'*^'"^''^ of ..•*.... V ...*••>•'• . 334 I^di^tniai^t ..i^'. ..... ........ ....ib. .a>. o^th: ; . . ; .335 ; 'bath of Offite, , , .336 Korm of. •.........•.*......'<•. ^'837 Otl5c*»r, I, ^,>, ....,., ,,».f«...i«1b. Ordertt ol Magistrates .tb. Orphan Children 338 Outlawry...... ib. Formofieturn .339 Overseers of Highways 340 - [Set Addenia\ .......17 Pardon...... 340 •■■ " ' ' '■■■■■ •' ' ^.-^, ,, Patent Rights..... ,..343 Pelilion for a patekU 34^ Oath of invention ',3^ Specification n^ PoqaIti6s. [See Fines] Penetentiary....... ii,, Perjury... ....349 At common law ^ By statute 351 Indictment 30 Puniihment . . . . ^ . .', , • • * • n, Subornation ..... . .,' . ',, * . .' 35^ Physic and Surgery. . - ib. Indictment for practising without • ), license....... •.,..,..,• ^^' Piracy • .* •.•;•'•«» ««■>«•-••. . ..255 Accessories. • .. .. »*• * ^... 357 Indictment «.•.... «•••.«. jk; Posse Comitatiis;«w>;;'*i<^....358 Post Office . - V. . .".\ ; . 359 Pot St. Pearl AsHes, , (^ee Flm] Pound Breacb*«».««. «.;. 360 Indictment 'for. j^ .« . ; ^ . . • • ib, Pound- Keqiws;. w^*^ .<• « 361 Notice by m Warrant to su.i«m9tt||ir«it fr^eholdenik Jurors oalh...... jb, [See Addendal ..^...^^ ,^. li IPound feu tfo.] ...,,,,,. 9 Proffmunire .". .\' .".'. . 1 363 P resentment. . ... •n- . .. . ... .oii! Prison Brealcrng."y „ ,,^",2 ,, . . ..ib. Prisoner . ... .... .,!,„, ^,. ... .365 Prize Fighting .,»•........ .366 r rouate ..<(*•!>*»•.•••...... .ib. Prpvisions » . . . .^ • .« , ..... .372 Public Healtbi lA^kkti4a].,J Public Worship . ... , , , .. . ..3?2 Funishiuent ...... ..^ •^«,. . ..ib, vfuakers ■ • . . .■^,..f*4,«... . . ..373 .Rape*.. .... • •»'«« i .v. • .• o • ..374 Informatioa. 37$ Wavrant ...... .v. ...... '^.. .. ....ib. Cpmnutm^nl «*.'". »...•>..... ...ST? Receiver of Stolen Goods. . . .377 Advertising reward . ^ t . • 380 Commitrauit.of,.with the principal.381 Do receiver only... ib. Rocognizance. ............ .382 To prosecute ...r %3 To appear, ..«%..<.«•» •••......•ili. By a witaeM..t». •••*..». 364 1 -ifjijJSsa i*Vp*irt!lit>^«i titmmatmtmm.1. mi ff p u pw^ n wpii'ifffH i Index. vu ., .....343 ^tAewi n tion 341 , ib. See Fincs\ lb. 34!) ^w .••••••••■•• 36(1 , 361 am »urgery»«-«» Ik' rpucUiing without »|.|^ ,..•*.•••••••• ) ■ •'•*•">•**■ ■ * »»Mi ,•• •••>«•• •<»*• •*' .»••••••■• •'W *•••••• •"'^ iatiM> i ■» '. i'»' » • • • • 'SSS «V«' • • • ♦ • • • ■ • • • '"W I Asfcs, , [5«e ^H for.k.«..«.*«* "J per*., i^***' -'•♦•••• •^'•1 ,,i,.3 ...,,.»•..• a .-.. -.•.".■.--. 36s It.. -■.'..•.•'• ^'^ log ,,»»*-»»''»«"3w «■•••.♦•'•♦••••••*'' ib . . ^^'> • •»* • •-•••• '373 . »»«*»*■•<•>••••«» • ••3(4 I .^•.■•'.'.•w.* 3W ,. . .W ,V»i •»■ • • •"• "i ^,...,,. ^ Stolen Ooods.. ■•37? reward.. »....:...•••• J of,. with the principal.*! Ironly ••. ce •*' aa e • *T ...*.. '1 ....»».**•»*• *" A>f ■ Page. Register Office. 384 Religion ..^..387 Replevin 388 Form of writ S89 Do. bond 590 Do. writ of capiat adwithernani ih. Downotic* 391 Rescue ....991 Commitment for .382 Restitution of Stolen Goods ... 392 Riot.:;...... ....393 ^'- Uih At comMon law. ..•••.••.•.•••*• 0jr statute ............ ....... . ' •" Prodamation to disperse rioters.. 1^ ?' ftMord of writ. ■ * fjomim tment. ........... ....... . . Fxecept to. summon- a jur/ . Jurors oatli. *••........ ........ Inquisition. |n4i<;t|aa(ept for a riot and assault.. Do. fur riot and tumult. Cotauiiilment for demolishing a |f tiouse^...;. ( . . CSommiinMot for remaining an ) hour after proclamation..... S Rivera. und Navigation. ... •f%olM>or^ »• »••••••••• ••• ' ^ ' CoHiQinitebtoC for* ••*••••••••• .394 ..ib. .395 .897 ..ib. .398 ..ib. .399 ..ib 400 400 .400 401 .404 4* \0»«t Sttbbath; [iSee Lord's day.l S^crllSgb... 404 Salmon 404 S^archlVarrant. ............ 405 ' lAfoI'di&tioii ...... ..............406 <» Warrant...;....... ......407 Sedition .«»«...... 407 Servants .«.i.. a.. ......... .408 . Comptaiui of master 409 ^w.^raiu^... ..«^it«*.».... . ... ...4IU ' Comniitmefht. •......*. ...........ib ' Abatement of wages... ..411 - Sessions. 411 Jurisdiction ......412 ««i^»« Proceedings ati.... 414 Precept to summon the sessions. ..419 tT^... Stile of. the sessions.... .....420 SubptBna .. ...................... lb. Subpoena ticket 421 oneriit ..«.........'........ 4.6 1 Bond te the King.... ...... ......424 Covenant ............ ........... 425 . ..Ships 426 /' Shopkeepers 426 Information for selling less than ) ^n^ A c|uttri ••••••••>•• j» •••••••• \ «' Information for allowing liquor to }.. b« consumed OB- the premises.. ) Information against piucbaser 428 Page. Soldiers ,.,, .428 Standard measure. [Addenda."] 10 Statute Labour. [Set Iligkwajft.] (Abo AMenda.).,.,, lu Stills... 429 Information focusing a still wbrlh ) 4«« oiitlicense .,. } ^^ Forvshica still of larger dimensions 433 For telkiMnf to admit inspectoir.. ..ib. Subornation of Perj tary ....... 354 Siibpana.^.b....... 434 Summary Punishment .ib. Certi6cnte under Jb. CoHTiction ........ ; ..436 Juror's oath ..436 Notice of appeal 437 Recugnizance .......... ..........ib. Summons. 437 To the constable 438 Oath of service ib. To the party 439 Oath of service. . ...... ...........ib. Ton witness « ib. By the board of commissioners. — ) 04 [Ses Addenda.\. J*** Surety for good Behaviour.. . .439 For what forfeited........ 441 Swearing 442 Information 443 Summons 444 Oonvlction ..843 Commitment 444 Theft Bote ••... ...445 Threats........ ib. Commitment ...........446 Another form .... .............. .447 Town Meeting ib. [See Addf,nda\. » m « ............... 11 Township clerk .... .... ........ ..ib. Form of bend.. .•■......•....•....17 Township Officers. [Sic Town Meeting.'] Transportation ..••.• .453 Commitment for leturning from ) .. banishment.... 5 ' Travellers 453 Informationfor ref Jsing halfthe road464 Summons ...... .,..•.•••....• ....455 Conviction ...........ib. Information for travelling without ) .^^^ sleigh bells.... \ Traverse .......456 Treason ........••••••.....ib. Petit treason ....469 Misprision of treason ib. Coniniitnient for high 460 :l Im>£X. ^1'. .1 ,1 Fug: ^MWiraifof the District ib. TOM ••••».» .«»'.*... 4 ^ k%U62 . |^90llcti9n.«.M«. >.••••••>• ••-^••466' ^>CohMBitment,.for d^tlvojriqg ........ ib .T«rni|ui .•.•.••••.••«•■•>> .« 467 j^inpikea. . •,..,,•..•...••. .ib . pmry..... , »4468 Vagraniiii. ..... 11. ... ^ ^ i.^ ^ 'r*'^^' «^raot... 471 jNfdtf bt> aud Measures .ib. ^fo^rmatioD.,. ^.•.. ...... ««472 ^'SlummoDS. 473 We:........,.. ib. Wird Lands* Assessment. — > _ . l^ie Addenda.] P^ Wtlis... 475^ Page. Wines. 476 ln<<^ Women . . . ..jii* . . . ••,«••... ..ib. Wooa.....^tV^...,.. 484 Warrant to aearch for alol^n wood. .485 Order folr safiifactrdn ............. ib CommUment ^.;...i..^ i.....486 Order foe treble daaapge».<»«k^... 487 Wa iran^ of dii(ijres«>>-« .«••.•>«. . . »tb. Workmen....... 48S "T *j Jt'^i-^tni Rfb itvsd 'V XttTifp to tf^e Slcm«ntj9 of eonHesaticCiifi; yjM Of real property ,,\,.'. . ;'i^ .; il^ .\^ U 1 ; ^ . . 1 Of personal property. • . .ib*' 0f estates il fee. .'.•v^';i> i^* Jb. By what words an estate in fee simple may be created.. ..1.... ..lb. ■Of the descent of real estates in cases of intestacy. .... . . . .... . . ^ •liinbiHty of estates in fee simple to the payment of debts. .4 w^.'.'..^ 9 'Of the creation of estates tail ........'.......'. . . . .'w'. » '. . . 4 Of the alioDtttien of estates tail . . . .^ . . '.. .... ... ; . ; '. '. . v*' • - « • >'ib. definition of an estate by curtesy ........3 Of estates in dower . .**. . .^i ; . '• . • . . .ib. Of joint tenants ; Of coparceners ......^. ..ib. Of tenants in comnran. ;'. iV«'.4 . i'^'i ;'. . . • 7 Of i^e partition of real estates, &c. ;......'.. .ib. 6f judgments' yvhich bind the land.. ..;.................... . . . 8 Of mortgages.. ^^V* ^ • • 9 ^7f drills '• • •'•'• •'•• •••••• ••••••«» V •*■■***••• ^a***** " ■•• ••••«• LVl Of HHes'lmrred by lapse of tin»e. ..; .^^. ib. <^f the i-egistry of deeds and conveyances 11 0f the usual mode of conveyance. . ......; • • v ^^ J^fpteement'far the purdinse of land. .;;......;:; Tl", .ib, Asstgmnent of the agreement ..14 Skrgahl and sale. . ;... 15 Gifrtificate of dower: . ^ 17 Receipt to be indorsed on the baigaiu and sale ib. JMemorial of a bacgaio and sale. 18 jMN>ptgage in fee. . ; . . . ^ ib. B'eceipt t^ be iudur&ed. . .................................. .^0 jli-iJ! yiiMiii*! mmm «P"«p /' Puge. '«.•*•«••••••••• 470 trsclliiif without licenie tb. •*•>.. .,.•••••••..•••15. •••••••I « 477 >, ••••••........ib. 479 489 r ditiuadjng a wit- i .g.. evidence J ...488 ] M Vt iit- ••-..,. «•>. ,......^. ..«,.. 484 irch for iiolcn wood. .483 ifactton ......... ....ib ....^. ;...;..;.. ...486 It dMUpges. .^.^. # k « . . .487 |ljreM»M.*«< •»>« .. .•ib. 488 If. &.; ' • . ^ , r'U fSaneCtiir;; Page. ...i..^.i.^i...ib. ;ated ........... ib. « ''■'..'-■; iij '-.■ to; '.«..••■■• a. • ■ • ■ ^, debts.i..^.'.;... 9^ ........... 4 lb. ...:v,;.... 6 '....^.^;7....;T • ••••■•••••••• I D« ' ': ■,- ■" ■* ■ :v ,■ > }: q • »,••,#•••••• vf' O .'.'.'.*!!.*!!.*.*.'." 10 ib. 11 12 ••••..- .lb, 14 ...13 17 ib. 18 .....ib. .....50 IriBEx. ikr MemoHnl of a mortgage inf«e.....:...*.....,^....«,..,«..«*#««^i Conveyance by a roorigagce in'-po^eMiou.... *«*^4«v|b. Mortgage by demise .•!•*•*....••..•.,.•.•••••; • • .^ Certificate of mortgage being pai^ ••--•••. ...^.f...;^^*.^ Memorniidum of the registrar •'•. t^*^. AsitignmeDt by the mortgagee* «.. !••*««,»,,, *..... ... • <« •Sbi* Memorial .............. .«.....;...•..••...... 24 Affidavit ......lb; Bill of sale of goods ........••.....•.••*..•.. ....■•■2$ Livery of possession «.• • ,1^1 Mortgage of goods *26 Common Bond .27"- ** for payment of money with iotorest, by instalments .2$ " for conveyance of land upon payment of purchase inojeiii^ :i, by instalments... , " , ^l * Receipt '>" ' For payment of the interest aonuallv, and the principal in ~ ), Where the interest is payable in aavance To pay mortgager QMi|iey......*..»*.«w.. «. ..... . From a le.ssee aod his surety to pay rent according tu !e»«e .31 Assignment of a bond by indorsement .............ib. Feoffment after the ancient form.......... ........33 Livery indorsed on the deed ................ib. Deed of gift .34 Deed of exchange ...ib. Deed of partition by coheiresses •......•....>. 35^ Release by a joint tenant to a trustee, to sever the tenancy 36 Release front one joint tonant to another... ...•.•.....•......• .37 Release of dower ....S8 Lease of a house and farm .......•.•••••■••ib.' Other forms of covenants. 42 Another form ............ib. Not o make bricks, &.c. • . • . .ib., Auci ons ••. •.....»•. .|b. A proviso for cither Ies5.ee or lessor to determine the leasQ.. ,..*•. 4? Assignment of a lease by endorsement ............. •■•■••••^.•••Ui.t Arbitr tt'ion bond ■ ••.••..44^ ' another clause ..••■...ib^^ •• do. .....45, •• do. ..c *,...ib. Award by an umpire ......••.••.. • .ib«, General power of attorney ••••;«.«..46v Revocation of a power .i(jf ,•*><> • f 4% Another form •>•••:• n.^^^^b^ General power to manage estates... ....•••^JbH Bond for the transfer of a U. E. R i,..r .50* P ower to execute conveyance. ....•.•«.••.• .^ib..' I Jifc'iw. !jff • i..^ X Index. Power to take up the patent deed 51 Assignment for the benefit of creditors ib. Release from creditors to a debtor 57 A general release. ib. Release to a guardian 58 Release to an executor ib. Release to an administrator ....59 Assignment of a church pew. 60 Addenda ....» 61 Corrigenda.. .•••....••.. .................ib. w m III \ f r. . * t • f r 4 ., ^ , * # ♦. ■ MM r^ * »- « ^ ■ t ■>- •. a. »>•••: t '•. ^ *■ ■ ♦. • li*^., ,-^.-„»-, .. • 51 ib. 57 ib. ••■•■■•aaa ,58 ib. 59 • 60 61 ib. ,.' ' • « « 1 .t ^ \ •■'•■■• »... ^4 w • %