IMAGE EVALUATION TEST TARGET (MT-3) f^-' (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les Images suivantes ont M6 reproduites avec ie plus grand soin, compte tenu de la condition et de la nettet6 de l'exempiaire fiim6, et en confformit6 avec les conditions du contrat de ffilmage. Les exemplalres originaux dont la couverture en papier est Imprimte sent ffiimds en commenpant par Ie premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par Ie second plat, selon Ie cas. Tous les autres exemplalres originaux sont ffllm6s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniire page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon Ie cas: Ie symbols — ► signlffie "A SUIVRE". ie symbols V signlffie "FIN". Maps, plates, charts, etc., may be ffiimed at difffferent reduction ratios. Those too large to be entirely included in one exposure are ffllmed beginning in the upper lefft hand corner, lefft to right and top to bottom, as many fframes as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc.. peuvent dtre ffilmis d des taux de reduction diffffdrents. Lorsque Ie document est trop grand pour dtre reproduit en un seul cllch6. ii est ffiimd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant Ie nombre d'images nicessaire. Les diagrammes suivants lllustrent la mdthode. 1 2 3 1 2 3 4 5 6 PR MAGIS BI CRIMIN A C PROVING] B > >ii- m THE PROVINCIAL JUSTICE, Oft MAGISTRATE'S MANUAL, BEING A COMPLETE DIGEST OF THE CRIMIML LAW OF CANADA, AND I I im % 'v t1 : FOURTH EDITION. TORONTO : HENRY ROWSELL, KING STREET. 1858. M-f /'I' ill ; ■■i ' i'.^; t I li 1 m 1 r:ni: .< I i-is:' It I) ii' ■ ■ i ' ■ « S M! THj: EI Bntered, according to Act of the Provincial Legislature, in the year 1858, hj William Conway Keplb, the Author and sole Proprietor, in the off ■ of the Registrar of the Province of Canada. I DEDICATED, WITH SINCERE RESPECT, TO TII|] EARLY PATRONS OF THIS WORK, sue Jli[a0ifiittii(|^ or UPPER CANADA, '<«iLl fi ■li-. BY THE AUTHOR. I ' ;■ i^ M ; ■il'^i # The third ed been long sir UFj^ed in man;; has now the j his friends anc edition in a m be found a cc now stands. have been enact Among them ii petty larcenies, by indictment. trialof juvoniIj( matory prison, i " they may be tl struction, and be conducive to the Provision too ha lunatic asylum, sentence, while tics whose mala gerous to public Improvement nal trials, by all according to tlie may not escape passed in the h right of appeal in to have been an provision should I as well as upon su of appeal has bee personal liberty »mBimt*:»« INTRODUCTION. The third edition of this work, published in 1851, has been long since distributed. The compiler has been urgeil in many quarters to publish another edition. lie has now the pleasure of complying with the wishes of his friends and patrons, by presenting them with a new edition in a much enlarged and improved form. It will be found a complete digest of the criminal law as it now stands. Several important and valuable measures have been enacted since the publication of the last edition. Among them is the statute for the summary disposal of petty larcenies, instead of the dilatory and expensive process })y indictment. Provision has also been made for the summary trial of juvonilo offenders, and for the establishment of a refor- matory prison, in which, as the statute in its preamble states, " they may be detained and corrected, and receive such in- struction, and be subject to such discipline as shall appear most conducive to their reformation and the repression of crime." Provision too has been made for the erection of a criminal lunatic asylum, for the safe keeping of convicts under sentence, while insane — and for the confinement of luna- tics whose malady may render their being at large dan- gerous to public safety. Improvement has also been made in procedure upon crimi- nal trials, by allowing indictments' to be amended in court according to the facts given in evidence, so that an offender may not escape upon mere technicalities. An act was also passed in the last session of the legislature, fo extend the right of appeal in criminal cases in Upper Canada. It seems to have been an anomaly in our criminal code that so just a provision should have been so long omitted— while in civil suits, as well as upon summary convictions before justices, the right of appeal has been long since conceded. Where the life or personal liberty of the accused is at stake, it is but just ii^ I- SI :r: '^^ U i i u m ■y.W. ' r VI INTRODUCTION. and reasonable that he should be at liberty to shew if he can, good and sufficient cause for a new trial. The whole of the above may be considered as decided improvements in our criminal code, and will no doubt give general satisfaction to the country. With respect to the magisterial office, the acts of the 10 v., cs. 178, 179, simplify and elucidate tlicir duties upon indictable offences, and summary procedure. They arc accompanied by schedules of forms. The whole will bo found inserted in the present work. By a late statute, the office of "county attorney" has been created — an officer whose services at the sessions will be found a valuable acqui- sition on crown prosecutions. To him the magistrates arc also, by the same statute, privileged to resort, should they require his advice or aid in matters brought before them for preliminary investigation. Having thus briefly glanced at the leading measures of improvement, the author will conclude with tho hope that this new edition of the Phovincial Justice will prove a useful guide to the magistracy, and worthy of the patronage bcBtowed on its predecessors. The law and office of coroner has been added. The municipal law has been omitted, as a bill is now be- fore parliament for its consolidation. It will probably pass this session ; upon which the existing law will of course be- come defunct. W. C. KEELE. Toronto, Slsi May, 1858. ytU \ 1 '' II ^H M 1 if ':' 1 V' .'.< 1 1 W\ i". * t 1(1! rA(jL'. 255. 347. 360. 430. ERRATA. Vountj Court. — The 9 V., c. 7 is repealed by 20 V., c. 58, and the terms altered to the first Monday in January, April, July and October. Forgery. — The 35 G. III., c. 5 is repealed by 9 V., c. 34. Gaols. — The 1 V., c. 5 is superseded by 20 V., c. 28. See title ^^ Inspectors of Gaols." Qualification of Jurors. — § -^^ is repealed by 16 V., c. 120, and a new provision made reducing the num- ber to one-half, instead of three-fourths of the inhabitants assessed. CORRIGENDA. 6. Accessory. — For 4 & 5 V., c. 27, read c. 26, § 27. 8. Accident. — For 10 & 11 V. c. 61, read c. 6. 26. Amendment. — For 1 W. IV., c. 2, read c. 1. 29. Appeal. — For term, read torm^,'^ 2nd line from the bottom. 51. Arso?i. — For 10 k 11 Y., c. 5, § 1, read c. 4, § 1. 76. Attainder.— For 3 W. IV., c. 5, read c. 4. 126. CensKS. — For January, 1862, read 1861. 151. Clerk of the Peace. — Census Act, dele § 14, 164. Common Schools. — For 18 V., c. 121, read c. 131. 171. Common Schools. — For 14 & 15 V., c. 3, read c. 111. 294. Eleetio7is.—VoY 14 k, 15 V., c. 7, read 16 V., c. 7. 308. Emigrants.— Vov 16 V., c. 82, read c. /.—YoY % 34, road 24. 699. Homicide.— VoY § 27, road § 8. 750. Sessions.— YoY 20 V., c. 70, real c. 28. Jgg5^ The above typographical errors can be easily cor- rected with a pen. * The word " terms," is inserted in tlje Act, but it is clcurly u clerical error, the word "term" being intended. MAGie A * placed at the head o By the 4 & 5 V any interest, wlio absolute, conditio estate, or sliall be any one having motives of lucre her will, •>"' 'i int( to bo married oi oiiVndor and evei such offender, siia thereof shall be li Provincial Penito years, or to bo ii confinement for ii If any person sh any unmarried gii out of the posses* mother, or of an^ charge of her, cv( demeanor, and b suffer such punish as the court shall By the 4 k 5 other noxious tlii abortion, or unh means whatsoever the offender liab imprisoned at ha: 1 THE l%,m 1 ^v% r fi« ■ ii MAGISTRATE'S MANUAL. A * pitccd at the head of a Statiito. dtinntcH that i*uch S!tatute relates to Upptr Canada only, and was passud before the Union. ABDUCTION. By the 4 & 5 V. c. 27, § 10 : where any woman shall have any interest, wlictlicr Ic^al or equitable, present or future, absolute, conditional or contingent, in any real or j'ersonal estate, or sliall be an heiress presumptive or next of kin to any one having such interest, if any per? ;, shall from motives of lucre take away or detain such woman agniust her will, -."''i intent to marry or defile her, or to c'lc-.e her to be married or defiled by any other person, every such oliVnder and every person couiiselling, aiding or abetting such offender, shall l)e guilty of felony, and being convicted thereof shall be liable to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. § 20. If any person shall unlawfully take or cause to be taken any unmarried girl being muler the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a mis- demeanor, and being convicted thereof shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award. ABORTION. By the 4 & o V. c. 27, § 13, adu'nistering poison or other noxious thing to any woman with intent to procure abortion, or unlawfully using any instrument or other means whatsoever with the like intent, is made felony, and the offender liable at the discretion of the court to be imprisoned at hard labour in the Penitentiary for life, or . I l^.: Ill M 2 ^'bntonXUnfi mthtovn, any term not less than seven years, or in any other place of confinement not exceedinfj two years. ABSCONDING DEBTORS. By the Division Court Act, 18 & 14 V. c. 53, § 04, it is enacted, that if any person or persons in any county of Upper Canada, being indebted in any sum not exceeding twent//- five pounds, nor less than ttvotfi/ shillinc/s, for any debt or damages arising upon any contract express or implied, or upon any judgment, shall abscond from this Province, leaving personal property liable to seizure under execution for debt in any county in Upper Canada, or shall attempt to remove his, her or tiieir personal property of the description above mentioned, * either out of Upper Canada or from one county to another therein, or from Upper to Lower Canada, or shall keep concealed in any county of Upper Canada to avoid service of process, it shall and may be lawful for any creditor or creditors of such person or ])ei'sons, liis«, her or their servant or agent, to make application to the clerk of any division court of the county wherein the debtor or debtors were or was last domiciled, or where the debt was contracted, or to the judge of the county court therein, or to ani/ justice of the peace in any county of Ujiper Canada, and upon making or producing an affidavit or aflirmation to the purport of tliat in the schedule to this act annexed, marked D, (which affidavit or affirmation the said clerks, judges, and Justices of the peace are respectively hereby authorised to administer,) and upon then and there filir.'g the said affidavit or affirmation Avitli such ehu'k or judge, or if taken before a justice of the peace, witii such justice of the peace (whose duty it shall be to trans- mit the same fcithwith to tlie clerk of tlie division court, within whose division the same was so made or taken, to be filed and kept among the ])apers in the cause.) it shall be lawful for such clerk, judge, or justice of the peace forthwith to issue a warrant under his hand and seal, directed to the bailiff of the division coin-t within whicli the same was issued, or to any constable of the county, commanding such bailifl' or constabU' to attach, seize, take and safely keep all the personal estate !ind eflects of the absconding, removing or concealed person or persons, of what nature and kind soever, liable to seizure under exe- cution for debt, within such county, or a sufficient portion thereof to secure the sum mentioned in the warrant, with * Uuods or chattels. m the costs of the i the division cou was issued, upor constable to whc being paid his lax thereupon, incluc execute the same all such personal take by virtue tl: within twenty-fou holders, who shal ble, to appraise seized ; and such the said inventi appraisement, to division within w warrant may be i act annexed, ma appraisers shall may be employed sum of two shiUi) first instance by 1 the costs of the ( may be conducted commenced by at tion, in the divii- warrant of uttacl ings shall l)e conn attachment; undc! ceedings may bi the division coi have been comm such attachment the execution to cceds thereof, in perishable, shall ment : provided plaintilf to divi( suits for the pu vision of this se action above the attachment mi^h "vverc not above don the excess, recover to an a and the judgmci the costs of the action, and to return the same forthwith to the division court of the division wherein such warrant was issued, upon receipt of which warrant the bailiff or constable to whom the same may be directed shall (upon being paid his lawful fees for levy, mileage, and otherwise thereupon, including the fees of appraisement) forthwith execute the same, and make a just and true inventory of all such personal estate and effects as he shall seize and take by virtue thereof, and such bailiff or constable shall within twenty-four hours thereafter call to his aid two free- holders, who shall first be sworn by such bailiff or consta- ble, to appraise the said personal estate and effects so seized ; and such bailiff or constable shall forthwith return the said inventory, which shall be attached to such appraisement, to the clerk of the division court of the division within which such warrant was issued, and which warrant may be in the form of that in the schedule to this act annexed, marked E : provided always, that the said appraisers shall be entitled to receive for each day they may be employed in carrying its enactments into effect the sum of tiro s/iilliiujs and sixpoicf'. each, to be paid in the first instance by tiie plaintiff or plaintiffs, and allowed in the costs of the cause : provided always, that proceedings may be conducted to judgment and execution in any case commenced by attachment under the provisions of this sec- tion, in the division court of the division within which the warrant of attachment shall issue; and that Avhen proceed- in tj.^ shall be commenced in any case before the issuing of an .ittaclunent under the provisions of this section, such pro- ceedings nuiy be continued to judgment and execution in the division court Avithin which such proceedings may have been commenced ; and the property seized upon any such attacinnent shall be liable to seizure and sale under the execution to be issued upon such judgment, or the pro- ceeds thereof, in case such property shall have been sold as perishable, shall be applied in satisfaction of such judg- ment : provided further, that it shall not be lawful for any plaintiff to divide any cause of action into two or more suits foi' the purpose of bringing the same within the pro- vision of this soctioii, but any plaintiff having a cause of action above tiie value of twcniy-jive pounds, for Avhich an attachment might be issued under this section if the same were not above the value of twenty-five pounds, may aban- don the excess, and upon proving his case, shall and may recover to an amount not exceeding twenty-five pounds, and the judgment of the court in such case shall be in full 'L r 'i^ » ; :-; ■ ' i! : ; f ' ; i v. ''M^f 4 Mt^tontfitiQ Helitoris* discharge of all demands in respect of such cause of action, and the entry of judgment therein shall be made accordingly. * SCHEDULE D. County of } A. B. of in the county of (here state the county) the plaintiff {or agent, as the case may he) mnkcth oath and saith, that C. D., {the debtor's name) is {or are) justly and truly indebted to {the creditor s name) in the sum of of lawful money of Canada, for {here state the cause of action briefly :) and this deponent further saith, that he hath good reason to believe, and verily doth believe, that the said C. D. hath absconded from this province, and hath left personal property liable to seizure under execution for debt within the county of ; {or) that the said D. C, is {or are) about to abscond from this province, or to leave the county of w*ith intent and design to defraud the said {the creditor) of the said debt, taking away personal estate liable to seizure under execution for debt ; (or) that the said C. D. is concealed within the county of to avoid being served with process, Avith intent and design to defraud the said {the credimr) of his said debt ; and this deponent further saith, that this affidavit {or affirmation as the case may be,) is not made, nor the process thereon to be issued, from any vexatious or v alicious motive whatever. A. B. Signature of deponent. Sworn (or affirmed as the case may be,) before me, the day of one thousand eiglit hundred and SCHEDULE E. ^ To A. B., bailiff of the division County of 1 court of the said county of {or {here insert the county) (to A. B., a constable of the county j of) (as the case may be.) You are hereby commanded to attach, seize, take and safely keep all the personal estate and efiects of C. D„ {naming the debtor,) an absconding, removing or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the county of {here name the county) or a sufficient portion thereof to secure A. B., {here name the creditor,) for the sum of {here state the amount sworn to be due) together with the costs of his suit thereupon, and to return this warrant with what you shall have taken ther number of the d said forthwith :— Witness my E. F Judge, clerk o An accessory i but by particip! In high treason cerned are consi' of a felony intern concealer an ac( —2 Haw. c. 29, There are acce An accessory bi being absent at tl cure, counsel, or a is necessary to co Accessories afti felony to have be( comfort or assist. But if others ac and keep within li deemed principals A wife cannot or after the fact, i liim to commit the Anciently, the principals were a this respect has b by the 4 & 5 V. felony at comnic guilty of felony, accessory before together with, or or may be indie felony, whether t been previously same manner as felony, if convictc such accessory n having jurisdictioi *\ ^tttunovp. have taken thereupon, to the clerk of the [here state the number of the division) division court of the county afore- said forthwith : — and herein fail not. Witness my hand and seal, the day of 18 E. F. ^ _ (L.S.) Judge, clerk or justice of the peace, {as the case may he.) 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 con- cerned are considered principals. The mere concealment of a felony intended to be committed, does not render the concealer an accessory. It is 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 pro- cure, counsel, or advise the commission of it; and his absence is necessary to constitute him an accessory. Accessories after the fact, are those, who knowing the felony to have been committed by another, receive, relieve, comfort or assist, the felonA-1 Hale, 618. But if others accompany nie principal to commit a felony, and keep within hearing, or upon watch, all are in such case deemed principals. — 2 Haiv. c. 29, § 7, 8. A wife cannot bo accessory to her husband, either before or after the fact, unless she be any way guilty of procuring liini to commit the felony. — 2 Haw. 320. Anciently, the accessory could not be tried unless the principals were attainted ; 3 Ed. I. c. 14 ; but the law in this respect has been altered by several statutes, * and now, by the 4 & 5 V. c. 24, § 37, accessories before the fact to felony at common law, or by statute, shall bo deemed guilty of felony, and may be indicted and convicted as accessory before the fact to the principal felony, cither together with, or after the conviction of the principal felon, or may be indicted for and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, and may be punished in the same manner as any accessory before the fact to the same felony, if eonvicted as an accessory, may be punished, and such accessory may be tried and punished by any court having jurisdiction to try the principal felon. § 38. Acces- * 1 Ann. c. 9, g 1. 19 O. II. c. 30. i . . ij "IS': 11 'i '" 'i; w ll ♦ » 6 Mtnunovs. series after the fact, may also be tried where the principal felony was committed, or where the party shall hav9 become accessory : accessories not liable to bo again indicted for the same offence. § 39. Accessories may be prosecuted, notwithstanding the principal felon shall die or be pardoned, or otherwise delivered before attainder. § 33. In the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable, and every accessory, after the fact to any felony punishable by this act, (except only a receiver of stolen property), shall, on conviction, be liable to be imprisoned for any toi'm not exceeding two years ; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanour punishable under this act, shall bo liable to be indicted and punished as a principal offender. By the 4th and 5th Y. c. 25, § 54, if any person shall aid, abet, counsel, or procure the commission of any offence which is by tliis act punishable on summary conviction, either for every time of its commission, or for the first and second time only, or for the fiiA time only, every such per- son shall, on conviction, befor^a justice or justices of the peace, bo liable for every first, second, and subsequent offence, of aiding, abetting, counselling, or procuring, to the same forfeiture and punishment to wliich a person guilty of a first, second, or subsequent officnce, as a princi- pal offender is by this act made liable. ^J'hc 4ih and 5th V. c. 27, § 20, also contains a provision similar to the 4th and 5th V. c. 25, § 54, for the punishment of accessories to felonies, kc, under that act. And by the 4th and 5tli V. c. 27, § 35, principals in the second degree and accessories before the fact to offences under this act, shall be punishable as the principal in the first degree : and accessories after the fact shall be liable to imprisonment, not exceeding two years. — iSee also pout title, ''lieccivers of Stolm Goods," ^^ Uxplosive Suhstancc." See also further uii this subject under the title of ^'"Indictable Offences," and '■'' Sumynary Conviction.' Form of Information and Complaint against an Accessory before the fact. Pkovixce of Canada : County of > The information and complaint of A. B. to wit. \ of the township of yeoman, taken day of this the undersigned, ( in and for the said day of las about the hour of feloniously and I (drycrifjr, tlw prope feloniously stolon, just cause to susnt C.I), of afo and burglary, and advise, aid, and ah Sworn before year first m Provinci; of C; County of > to wit. i Whereas C. D., been severally chat of her Majesty's county of ' . day of last, al the same day, feloi the dwelling-hous steal, take, and ci of the said A. B. abet, the said C. command yun in the said 0. D., ur some other of lor tlie said county preferred against with arcordinc- to <^iiven under (w/ year of our Lord, " aforesaid. Warrant to apf h Province of C/ County of to wit. Whereas C. D' oath l)efor(! the un( the peace in and A the said C. D. (^dn »_,,,dL/ mttmovu. this day of in the year of our Lord , before the undersigned, (one) of her Majesty's justices of the peace, in and for the said county of , who sailh tlmt on the day of last, his dwelling house, situate at was about the hour of ten o'clock, in the night of the same day, feloniously and burglariously broken and entered, and that ((fncribr, tlw property stolen) his pro[)erty were then and there leloniously stolen, takei . and carried away, and that he hath just cause to suspect, and doth verily suspect and believe that C. I), of aforesaid, labourer, did commit the said felony and burglary, and that E. F,, of aforesaid, labourer, did advise, aid, and abet, the said C. D., in the said felony. Sworn before (me) the day and ) CD year first mentioned. S ^ J. P. Warrant thereon. Provinck of Canada : County of i To all or any ot the constables or other to wit. ^ peace ofiiccrs in the county of Whereas C. D., of and E. P., of have this day been severally charged upon oath before the undersigned (one) of her Majesty's justices of the peace, in and for the said county of . For that«, the said C. D., did on the day of last, about the Wour of ti-n o'clock, in the night of the same day, feloniously and burglariouslj' break and enter the dwelling-house of A. B., situate at , and feloniously steal, take, and carry away ((/rxcrilif tin- nrt!rli>C) the ])roperty of the said A. B.. and that the siiid E. F. did advise, aid and abet, the said C. D. in the said felony. These are therefore to command you in her Majesty's name, forthwith to apprehend the said C. D., and E. F., and to bring them before (»!^) or some other of her Majesty's justices of the j)eace, in and for the said county of to answer unto the said charge so preferred against them respectively, and to be further dealt with according to law. Given under {mi/) hand and seal this day of in the year of our liOrd, 185 , at in the county of aforesaid. .1. S. (L.S.) Warrant to apprehend an Acccsnor// after the faet, for harhonrhuj the principal. Province of Canada ; County of ) To all or any of the constables or other to wit. \ peace ofTicers in the county of Whereas C. D , of stands charged this day upon oath before the undersigned, (o»e) of l.er Majesty's justices of the peace in and for the said county of . For that he the said C. D. (stdting the offence as abort):, and whereas G. H. ' '' 1 \] \': ■ 1 '' t!---'!' ' i M I'i , ■ My il liil; 1 '] T lilM III '\' 'f i- mM ■' :j>| 1 ^ j L^ lil 1 \^ 1 •1 2j 8 MttitttnU—^ttinittnL hath also this day been charged upon oath before me, the said Justice, for that he the said G. H., since the said felony and burglary was committed, hath received, harboured and main- tained him the said C. D., in the dwelling-house of him the said G. H., at aforesaid : he the said G. H. well knowing the said C. D. to have committed the said felony and burglary. These are therefore to command you in her Ma- jesty's name, forthwith to apprehend the said G. H., and to bring him before (mc^, or some other of her Majesty's justices of the peace, in and for the said county of to answer unto the said ch&rge, and to be further dealt with according to law. Given under (my) hand and seal, this day of in the year of our Lord 185 , at in the county of aforesaid. J. P. (L. S.) ACCIDENT. By 10 and 1.1 V. eh. 61, in case of death by the wrongful act, neglect, or default of any party, such party may bo sued for damages by the executor or administrator of the deceased party, and the amount divided among the deceased's wife and family, as the jury by their verdict shall find and direct. — See 2yost title ^^iJucL" ACCIDENTS O^llAILWAYS. Sec ^^ Railways." ACQUITTAL. And sec — ^'■Autrefois Acquit.'' An acquittal is tlio 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 oftence with which he stood charged before them upon his trial. — Deacon a 0. Law, 18. "Where there is no evidence whatever to affect a party who is unju.stly made a defendant with others in a prose- cution, 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 defen- dants.— 1 Holt. 21 h; Gil. Ev. 117 ; Bull N. P. 2i}^. Every prisoner upon his acquittal, it has h<^'^' :•*, Itas an undoubted right to a copy of the record of siiC'' .. , tsttal ; and after a demand of it has been made of the propr )iliccr, the latter may bo punished for refusing to make it .^..a. — It. V. Brangan, 1 Leach, 27. But if there was probable cause for the indictment, or where the acquittal arises from the incompetency of a wit- ness, the coiu't will not then permit the prisoner to have a copy of the in (a) ; R. V. Beva By Imperial shall be brough acting by his oi any warrant of his usual place o such action, or b by the party dem of the warrant, i neglected for six demand and conif out making the on producing an jury shall give a i any defect of juri be brought jointly on proof of such stable ; and if the the plaintiff shall costs as the plain whom the verdict in such action agr the judge shall cc wilful and malic It is not necessary name should be specifically statec and Pull. By IG V. c. 18( a justice of the pcj cution of his offic six calendar monl nor until one calei ing of such intcnc or left for him intending to brin<^ in which said notii which the same is and explicitly stat endorsed the nam ing to sue ; and business, of the s; V actfoti. 9 a copy of the indictment. — R. v. Quick, 1 Leach, 28, Note (a) ; R. V. Bevan, Ibid 1 ; Ld. Ray., 253. ACTION. By Imperial Statute 24 G. II., c. 44. No action shall be brought against any constable, or any officer acting by his order, for any thing done in obedience to any warrant 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 after any demand and compliance, any action shall be brought, with- out making the justice who signed the warrant defendant, 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 con- stable ; and if the verdict shall be given against the justice, the plaintiff shall recover costs against him, including such costs as the plaintiff is lilAly 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. 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 Pull. By IC v. c. 180, § 7, no action shall be brought against a justice of the peace for any thing done by him in the exe- cution of his office, unless the same be commenced within six calendar months next after the act complained of § 8, nor until one calendar month at least after a notice in writ- ing of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to bring such action, or by his attorney or agent, in which said notice, the cause of action, and the court in which the same is intended to be brought shall be clearly and explicitly stated ; and upon the back thereof shall be endorsed the name and place of abode of the party so intend- ing to sue ; and also the name and place of abode, or of business, of the said attorney or agent, if such notice have 2 I 111 11 «; I ' Hi ■m ^i ! 10 Action. been served by such attorney or agent. — See further on this subject under the title of *^ Justices of the Peace." Notice of Action from the Attorney of the Party to a Justice of the Peace, for false Inqjrisonmcnt. To A. B., one of Her Majesty's Justices of the Peace, act- ing in and for the County of Sir, I do hereby, as the attorney of C. D., of , gent., give you notice, according to the form of the statute in that case made and provided, that I shall, at or soon after the end of one calendar month from the time of the service of this notice upon you cause a writ of summons to be sued out of her Majesty's Court of Queen'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 your 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 Avithout any reason- able or probable cause for a long time, to wit, for the space of then next following. Dated this day of ,18 Yours, &c., > E. F., residing at City of Toronto, Attorney for the said C. D. Demand on a Constable of perusal and copy of his warrant. To Mr. C. D. I do hereby, as attorney of and for A. B., of , &c., according to the form of tlie 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. B., and carry and convey him in custody to and before S. P., Esq., one of Her Majesty's Justices of the Peace in and for the County of Dated, &c. Yours, &c., W. T., Attorney for the said A. B. City of Hamilton. The like on a Gaoler. To Mr. A. B. . I do hereby, as the attorney for E. F., of , &c., accqrd- ing to the form of the statute, &c., {as before) demand of * Or the Court intended. you the perusal j detainer under ^ said E. F. on or Y( It seems prope rants, and not rei cannot comply wi A( * By the 41 G. of this Province i which should pass session thereof, ii day, month and y received the royji taken to be a pai commencement, a therein provided. * By the 1 W. Parliament, public cially in all Court specially pleaded ; authority, shall be By the 4 & 5 \ summary convioti gender shall be i well as several pc bodies corporate provided or repu^ payable to a body A penal statute and the rules of n letter. — Rex v. I Digest, p. 55. Sc When a ccurt o delivery breaks u void one, as being of the commissior time be limited foi pro hac vice only ; or, quamdiu nobis ^tts of ]9arlCament 11 you the perusal and copy of the warrant of commitment and detainer under which you received into your custody the said E. F. on or about the day of instant. Dated, &c. Yours, &c., W. T., Attorney for the said E. F. City of Hamilton. It seems proper that constables should retain their war- rants, and not return them to the magistrate, otherwise they cannot comply with the directions of the act. — [Toone.) ACTS OF PARLIAMEN^x\ * By the 41 G. III., c. 11, it is er.acted, that the Secretary of this Province shall endorse on every act of the legislature which should pass during the then present and every future session thereof, immediately after the title of such act, the day, month and yeal', 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 1 W. IV., c. 1, § 2, all acts of the Provincial Parliament, public or private, shall be taken notice of judi- cially 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. By the 4 &, 5 V. c. 24, § 50, in cases of indictment or summary conviotion, the singular number or masculine gender shall be understood to include several matters as well as several persons, and females as well as males, and bodies corporate as well as individuals, unless otherwise provided or repugnant to the act ; and forfeitures shall be payable to a body corporate, if the aggrieved party. A penal statute is to bo construed according to its spirit and the rules of natural justice, not according to its very letter. — Rex v. Mcintosh^ Easter * 7 W. IV., Cameron's Dijest, p. ()ii. See also ^^ Jnterpretation Act." ADJOURNMENT. When a ccurt of sessions of oj/e)' 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 time be limited for its continuance, as where it is appointed pro hac vice only ; but if it be granted for a certain time, or, quamdiu nobis placucrit, it does not necessarily require i I, 11 » i i 'ti \¥ 12 ^fBfDraliit. any adjournment, and may be holden again on a new sum- mons. — 2 Jffatv. c. 5, § 7. AFFIDAVIT. An affidavit is an oath of some fact, testified in writing and sworn before some person who hath authority to ad- minister such oath. The true place of habitation and true addition of the deponent must be inserted in the affidavit. —1 LilL Ah. 44, 46. An affidavit ought to set forth the matter of the fact only which the party intends to prove by his affidavit, and not to declare the merits of the case, of which the court alone is to judge.— 21 a IB. E. And the matter sworn to must be positively set forth, with all material circumstances attending it, that the court may judge whether the deponent's conclusion be just or not. — 1 New. Ahr. QQ. Therefore, on a motion to put off a trial for want of a material witness, it must appear in the affidavit that sufficient endeavours have 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. A'Zl, 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. 1655. The affidavit must be made before the judge or commissioner of the court where the cause or matter was pending. — Sty. 455. An affidavit improperly entitled cannot be read, as no indictment thereon will lie for perjury. — Salk. 461. Affidavits in aggravation of punishment are not receivable in cases of fielony. — R. v. Ellis, B. .',nd delegates from each of the incorporated Mechanics' Institutes, or of any incorporated arts associations (jualified as herein- after mentioned, in Upper and Lower Canada, to be chosen annually as hereinafter provided. § 21. Said corporations ^0 empowered to ho purposes. § 22, in Upper Canads annually to elec Board of Arts, i similar provisioi Lower Canada, stitute in both i Janunry, annual] Arts, &c., one dc being actual worl that such Mecha funds of such boa to such institute f transmit to the I mentsofthenuml of each institute, of the «^olegatcs institute, to the i by the secretary the names of all ing mcclianicson of at least 5s. ea shall be the duty with the approba and establish at '. practical mechar other material su tible of being u with models of W( other than implc reference, conta with a vicvof ini mechanical arts u iVom other count chines (not agricu of the s. me, and jj to promote impro' And tile Mini«tei pies of patented museums or libra authorised with t to establish in cc or libraries', scho< proved plan, and and appropriate ^Qvimltnvnl Sotfetfefii* 17 empowered to hold real or immoveable property for corporate purposes. § 22. The Board of Trade in each city and town in Upper Canada, authorised at its first meeting in January, annually to elect and accredit one of its members to the Board of Arts, &c., for Upper Canada. § 23. Contains a similar provision with respect to the Boards of Trade in Lower Canada. § 24. Each incorporated Mechanics' In- stitute ift both sections, authorised at its first meeting in Janunrv, annually, to elect and accredit to said Board of Arts, &c., one delegate for every twenty members on its roll, being actual working mechanics or manufacturers. Provided that such Mechanics' Institute shall have, contributed to the funds of such board, at least one tenth of the government aid to such institute for the year previous. § 25. The auditor shall transmit to the Board of Arts, &c., in March annually, state- ments of the number of members on the books, and the revenue of each institute, exclusive of provincial aid. § 26. The names of the 'delegates to be transmitted by the secretary of the institute, to the secretary of the proper board, with affidavit by the secretary of such institute, sworn before a justice, of the names of all the members on the roll, being actual work- ing mecbanics or manufacturers, and having paid subscriptions of at least 5s. each to its fund for the last year. § 27. It shall be the duty of the Board of Arts, &c., to take measures with the approbation of the Minister of Agriculture to collect and establish at Toronto and Montreal for the instruction of practical mechanics and artizans, museums of minerals and other material substances and chemical compositions suscep- tible of being used in mechanical arts and manufactures, with models of works of art, and of implements and ;nachincs other than implements of husbandry, and free libraries of reference, containing books, plans and drawings, selected with a vicv of imparting useful information in connexion with mechanical arts and maiiu.acturcs, to take measures to obtain from other countries new oi* improved implements and ma- chines (not agricultural), to test the quality, value and usefulness of the s. me, and generally to adopt every moans in their power to promote improvement in mechanical arts and manufactures. And the Minister of Agriculture may cause duplicates or co- pies of patented inventions to bo placed in the model room, museums or libraries of said Board of Arts, &c. Said boards authorised with the consent of the Minister of Agriculture to establish in connexion with their museums, motlel rooms or libraries', schools of design for women, on the most ap- proved plan, and furnished and supplied in the most complete and appropriate manner, that the funds at their disposal i, ! ■,: \ i I :■ I 1 ti !-.^ ' \l 'S^{ i ll i; i.j I 1> '. !> i i m to 18 ^lr=®ottfiiefii*— ^Utnfii* may admit of; also to found schools or colleges for mechanics, and to employ competent persons to lecture ; and said boards shall keep recortls of their transactions and publish the same. § 28. Said Board of Arts, &c., authorised to make by-laws, copies of the same to be transmitted to the Bureau of Agriculture. § 29. Said Board of Arts, &c., to meet at Toronto and Montreal, four times a year, viz., on the first Tuesday in January, April, July and October, provided the same be not a holiday, in such case the next day thereafter. Special meetings may be called by the president, or in his absence the vice-president, whenever ho may deem it necessary, or upon the requisition of any ten members, in the interval between any two quarterly meetings, upon seven clear days' notice to be given by the secretary of the board. § 30. Each board at its quarterly meeting in January each year, to elect a president, vice-presi- dent, and a secretary and treasurer for the ensuing year, appoint a sub-committee of not less than five nor more than nine of their number for the management of affairs. The president and vice-president to be ex ojficio members of such sub-committee, and a majority to be a quorum. AGKICULTUllAL ASSOCIATIONS. § ol. The members of the Boards of Agriculture and of the Boards of Arts and Manufactures, the presidents and vice- presidents of all lawfully organised county Agricultural Societies, and of all Horticultural Societies, and all subscri- bers of five shillings annually, shall constitute an agricultural association for tliat section. § 32. Members of the Board of Agriculture, and of the Board of Arts and Manufactures, and the 'fn-esidont and vice-presidents of county societies and Horticultural Societies (or any two members appointed directors instead of its president and vice-president) shall be the directors of such agricultural associations and may elect a [For conclusion see page 8(31.] . ALE-HOUSES. Tiie power of licensing houses of this description was formerly vested in justices of the peace, but is now vested in the municipal authorities, who are by law authorised to make by-laws regulating the same, and imposing duties, &c. ALIENS. An alien is one, generally speaking, who is born in a foreign country out of the allegiance of the king. — 4 BL Com. 342. But by 7 Am 21, all childrer fathers or gran born subjects, ai selves, to all int tors were attaii treason ; or wcr< of a piiticc at er The ciiihhen ( natural-born sub the realm as ene gives them the r within the allegii —7 Co. 18 A. ; AVhen an alien be one half fore but this privilege holden to be not the allegiance du An alien resid high treason, if 1 hostility to this k iialk. 40 ; 2 Ld. A conveyance for the benefit of others, until the 1 on office found ; has the legal esta and a person claii of the crown ; an sheriff 's deed sole in ejectment, not) sary to take the before execution. - A person who revolution, and alien, and cannot Various provin passed in favour c these statutes war time, it has been a general law on into the province, (a) 9 0. IV., c. 21; ^Urns. 19 But by 7 Ann, c. 5 ; 5 G. II. c. 21 ; and 13 G. III. c. 21, all children born out ot the king's legiance whose fathers or grandfathers by the father's side were natural- born subjects, are deemed to be natural-born subjects them- selves, to all intents and purposes ; unless theit said ances- tors were attainted or banished beyond the sea for high treason; or were, at the birth of suchchildren, 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 Englishynen, but their being born within the allegiance and under the protection of the king. —7 Co. 18 yl. ; 1 Bl Com. 374. When an alien is indicted for any crime, the jury should be one half foreigners, if so many are found in the place; but this privilege does not hold in treason, since aliens are holden to be not the proper judges of v hat is the breach of the allegiance due to a British {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 Haiu. e. 17, § 5 ; Fost. 185. ; &'al/c. 40 ; 2 Ld. Hay, 282 ; East. P. C. 63. A conveyance in fee to an alien is not void, but he holds for the benefit of the crown, and is entitled, as against all others, until the land is seized into the hands of tlie Queen on office found ; and if a subject be a trustee for an alien, he has the legal estate and the Queen is entitled to the profits ; and a person claiming through an alien may have the benefit of the crown ; and scmble, a person claiming lands under a sheriff 's deed sold at the suit of an alien, is entitled to recover in ejectment, notwithstanding stat. o, G. II., it being neces- sary to take the objection of alienage, if available at all, before execution. — Cameron s Digest, p. 5. A person who Wivs born in the United States before the revolution, and has continued to reside there since, is an alien, and cannot maintain an ejectment in this country. — lb. Various provincial statutes (cr), have been from time to passed in favour of aliens domiciled in this province, but as these statutes were limited in their operation with respect to time, it has been deemed expedient by the legislature to pass a general law on the subject, under which aliens now coming into the province, and cofnplying Avith the requisitions of the (a) 9 0. IV., c. 21 ; 1 W. IV., c. 7: 2 W, !V., a.l-n V., c. 20; 4 V., 7 ; 10, 11 v., c. 112. '-! 1 ^'.''Il' m \ II 1 20 ^litnu. Hi 1 1-4-^ act may acquire the rights and privileges of British born subjects. The statute referred to is the 12 V. c. 197 (a reserved act passed the 3rd May, 1849, the royal assent being given thereto the 6t.h October, 1849, and proclaimed the 23rd November, 1849.) By this statute, the former act 8 V. c. 107, (in the act called the 9 V. c. 149,) is repealed. § 2 enacts, that all aliens who had their settled place of abode in either of the late provinces of Lower or Upper Canada, before the tenth day of February,- in the year of our Lord, one thousand eight hundred and forty-one, nnd who are still resident in this province, shall be, and are hereby admitted to, and confirmed in all the privileges of British birth, and shall be deemed, adjudged, and taken to be, and to hiive been natural born ?ubject3 of her M; j 'Sty, to all intents aiintinae to reside therein or in some other part of her Majesty's dominions, until they shall have been resident inliabitiiTits thereof for the space of seven years continually, without hiwiiig been during that time stated residents in any foreign country, shall be, and are hereby admitted to ail the privileges of Bi-itish birth, and shall be deemed, adjudged, and takt'n to be and to have been natural-born subjects of her Majesty to all intents anr. lyt.ir/; onr nf the persona alhwerl hylaw to a firm in Jv\ justice of neace pound and agre( then the justice take bond of thi to be holden in rate or market county, or the n or market town, And upon hi' before the justice be thought' meet his apprenticehoc least, whereof one officer, witii the c men of best rep market town, s" writing under declare that the iipprenticehood a being made and clerk amongst th„ oient discharge fc his executors ant hood or any law And if the defs; then the justices, assistance afores punishment to and discretion d! (a) By 20 G. J and for any two o riding, city, libe master or mistre (o or more justices of the peace of the county, riding, city, liberty, town corporate or place where such master or mistress shall inhabit, upon any complaint or ((i) It is questionable vhetber tbis and the following statutes, 6, 0. 3, c. '25, have not 1 en virtually repealed or superseded by provincial statute 14, & 16 V. 0. -1. 1 II !t' i*.! 'S r;:i m 32 ^|i|iirfntfteiD(« ■'I 1. ^ application by any apprentice, upon whose binding out no larger a sum than five pounds of lawful British money was paid, touching or concerning any misusage, refusal or neces- sary provision, cruelty or other ill-treatment of or towards such apprentice, by his or her master or mistress, to stim- mon such master or mistress ^o 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 complaint, 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 oath proved,) the said justice 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 application or complaint made upon oath by any master or mistress, against any such apprentice, touching or con- cerning any misdemeanor, miscarriage or ill-behaviour 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 exceeding one calendar months or otherwise by discharging such apprentice in manner and form before mentioned. ^J § ^> provided, that if any person or persons shall think himself, herself or themselves aggrieved by such determina- tion, order or warrant, of such justice or justices as afore- said, (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 determination or order shall be made, which said next general quarter sesHions is hereby empowered to hear and finally determine the same, and to give and award such costs to any of the respective persons, appellant or respondent, as the said sessions shall judge reasonable, not exceeding fort^/ 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 whatsoever had in pursuance of this act into any of her Majesty's courts of record at Westminster. By G. III. c. 2'), if any apprentice (except such whost master shall have received with such apprentice the sum of ten pounds) shall absent himself from his master's service before the term of his apprenticeship shall be expired, every "^uch apprenti over he shall for as long a i such service, i he shall have so from time t without leave 1 vice before th( in case any su( required, or to master may coi of the county such justice is 1 a warrant und( such apprentic( plaint, may de such master b\ tiee shall not according to su( for such justic house of correcti % S ;j, such , after the end of And by § i'), f general quarter tice, and enteri after such notic and abide the awarded by the Upon these ; relative to appi power is given t, instance; that ul only constituted! unless the mastJ and if lie do not] but if the mastc jnagistrate may,L him to be dischal the apprentice, '''lie power gi\ magistrates, by fices where the p\ I^esides the pof ^•'^ § of 5 Eliz. c/ punishment to be 6 ^ppvtntittn. 33 8uch apprentice shall, at any time or times thereafter, when- ever he shall be found, be compelled to serve his said master for as long a time as he shall have so absented himself ftom such service, unless he shall make satisfaction 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, Avhich oath such justice is hereby empowered to administer, and to issue a warrant under his hand and seal for apprehending any such apprentice, and such justice, upon hearing the com- plaint, may determine what satisfaction shall be made to such master by such apprentice, and in case such appren- tice shall not give security to make such satisfaction, according to such determination, 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 § ;">, any party aggrieved may appeal to the next general quarter sessions, giving six days' notice to the jus- tice, and entering into li 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 the&e 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 f) Eliz. c. 4, 07ie justice is only constituted a mediator, and has no power to proceed unless the master agree to be bound by liis 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 his hand and seal, direct him to bo discharged, for no option is given by the statute to the apprentice, but only to the master. The power given over indentures of apprenticeship to two magistrates, by the 20 G. II., c. 1\\ is confined to appren- tices where the premium does not exceed five 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 apprentic 3 as they may 5 im 'i - iH mm m l^r;'!' m if a. [ I 84 ^Ulirentf^ei^. think fit, and by virtue of this clause they may commit the apprentice ; and Dr. Burn observes, that this being left inde- finite, it seems most apposite that the justices commit the apprentice to the house of correction for a time, to be kept to hard labour, or otherwise corrected, as the nature of the offence may require ; but that this clause in 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 corporal punishment, or discharge an apprentice at their discretion. Proceedings at Sessions under 5 Elizabeth. An order of discharge may be made upon the application of either party ; for an apprentice may be discharged from a bad master, and a bad apprentice from his master. — 1 Saund. 315, 16, S13, n. 2. But the sessions cannot discharge without setting forth some cause in their order. — 1 Bott. 577 ; 2 Str. 1013 ; lb. 704 ; Bott. 570. The usual causes for which the apprentice complains against the master are cruelty and misusing his contract, either 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 apprentice was b»me and in the surgeon's opinion incu- rably inflicted," for the master takes him for better or worse, and is to provide for him in sickness and in health. — 1 Str. 89 ; Bott. 574. The order must be under the hands and seals of four justices, and enrolled as the act directs, or the superior courts will set it aside. — 1 Saund. 310, n. 5; 2 Salk. 470; 1 Bott. 572; 1 Str.dQ. The power of discharge is confined, in counties, to four justices at the least, and must be made at a general sessions, and not at a private sessions, or the order may be set aside. —1 Skin. 89 ; 1 Bott. 572. It lias been decided and settled, that the justices have power to order restitution of the premium received with the apprentice, or such part of it as they may think fit, as an incident to their authority to discharge. — 1 Saund. 313, n. 3, cites 1 Salk. 07, 08; 2 Salk. 481, S. C; Skin. 108; 1 Bott. 571, 570, ace; 1 Stra. 79, contra, and see the proceedings in 2 Bernard K. B., 244, 290, and Chitty on Apj). LawSf 107. r Although th( the master's ap have a reason proceed in the the apprentice Bott. 572. JProct % 14 & 15 1 relating to App Whereas ther province called prentices for a 1 would promote tl of apprenticeshij apprentices more &c., that from a lawful for any pa care or eliarge o yearr, with the ( same as an appre mechanic, farmer, calling for any to such apprentice. § 2. That in a lawful for the ma any county or uii any court of gen and bind as afore other person as a and with the con an orphan, or w guardian, or whos committed to any any minor who n or support: and apprentice shall . such apprentice h § 3. That if an such apprentice party, if any such ment of the decca apprentice upon t have done, and an tice to any perscn Mppvtntittn. 35 If against the Master. Although the 5 Eliz. requires the discharge to be made on the master's appearance, the court held that the act must have a reasonable construction, and the sessions might proceed in the master's absence, otherwise, if he ran away, the apprentice could not be discharged. — 2 Salic. 491 ; 1 Bott. 572. Proceedings under Provincial Statute. By 14 & 15 V. c. 11, entitled An Act to amend the law relating to Apprentices and Minors. Whereas there is no statute in force in that part of this province called Upper Canada, to provide for binding ap- prentices for a less term than seven years ; and whereas it would promote the general interest of society if shorter terms of apprenticeship were made legal, and the law relating to apprentices more clearly defined : be it therefore enacted, &c., that from and after the passing of this act, it shall be lawful for any parent to, guardian, or other person having the care or charge of any minor, not under the age of fourteen year?., with the consent of such minor, to put and bind the same as an apprentice by written indenture, to any master mechanic, farmer, or other person carrying on any trade or calling for any term not to extend beyond the minority of such apprentice. § 2. That in any city or incorporated town, it shall be lawful for the mayor, recorder, or police magistrate, and in any county or union of counties, for the chairman of and at any court of general quarter sessions of the peace, to put and bind as aforesaid, to any master mechanic, farmer or other person as aforesaid, with the consent of such person, and with the consent of the minor, any minor who may be an orphan, or who may bo deserted by his or her parents or guardian, or whose parents or guardian may for the time bo committed to any common gaol or house of correction, or any minor who may be dependent upon any public charity or support : and such apprentice, and the master of such apprentice shall severally be hold in the same manner as if such apprentice had been bound by his or her parent. § 3. That if any master of any such apprentice shall die, such apprentice shall by act of law, be transferred to the party, if any such there be, wiio shall continue the establish- ment of the deceased master, and such party shall hold such apprentice upon the same terms as his master if alive would have done, and any master may legally transfer his appren- tice to any person competent to receive or take any appren- I! 36 mppvtntitt^. '!!■:'' tice ; provided always, that no master shall transfer his apprentice except to another carrying on the same kind of business as himself. § 4. That every master shall provide suitable board, lodg- ing and clothing, or such equivalent tnerefor as may be mentioned in the indenture, to his apprentice during the term of his apprenticeship, and shall also properly teach and instruct, or cause him to be taught and instructed in the art and mystery of his trade or calling. § 5. That every apprentice shall, during the term of his apprenticeship, faithfully serve his master, shall obey all lawful and reasonable commands, and shall not absent him- self from his service, day or night, without his consent. § 6. That any justice of the peace, mayor, or police ma- gistrate, shall have power, on complaint made before him on oath, by any apprentice against his master for any refusal of nece.s?ary provisions, misusage, cruelty or ill-treatment, after ha '*uly summoned such master to appear before liitn to u) I the complaint, to hear and determine >sueh com- pianii, and on conviction to levy such fine on the offender not exceeding the sum ot five pounds currency, as to such justire may-^ or police magistrate may seem meet, and to issue distrcs.v to JolL'Ct such fine and the necessary costs, and in default of satisfaction of such distress, to imprison the offender in any common gaol for a term not exceeding one month. And any of the said justices, mayor, or police ma- gistrate shall have power also, on complaint of any master against his apprentice for refusal to obey his commands, for waste or damage to property, or fo r any other improper conduct, to cause such apprentice to come before him, and to hear and determine such complaint, and on conviction, to order such apprentice to be imprisoned in any common gaol or house of correction for any time not exceeding one month. § 7. That if any apprentice shall absent himself from his master's service or employment before the time of his ap- prenticeship shall be expired, he shall at any time thereafter, wherever he shall be found in this province, be liable and may be compelled to serve his master for so long a time as he shall have so absented himself from his service, unless he shall make satisfaction to his master for the loss he shall have sustained by his absence from his service. And in case such apprentice shall refuse to serve as hereby rotiuired, or to make such satisfaction to his master as aforesaid, or in case any such apprentice refuse to obey the lawful com- mands of his master, or in any other way or manner refuse to perform his duty to his master, or neglect to perform the same, such mas on oath to any trate, either in resides, or in an^ ing apprentice u or police magist seal, cause such before him, or s hearing the cor shall be made b case such appren immediately, or i to allow of imme< make such satisfa for such justice, r apprentice to the such county, city months: provider release such app lost time to his that where such i this province call return thereto, su( against such appn the expiration of i have contracted the case may be. § 8. That any j ploy any abscond! master of such ap labour, which valu which such master service of such ap his Service, whic jurisdiction where wliei-e his master r § 5». That if ar convicted of any tonced to the prov may avoid the ind sliall give notice . other parties to th such notice or co Kome newspaper o establishment is si vided always, sucl ^imtentfcefii* 37 same, such master, or his overseer or agent, may complain on oath to any justice of the peace, mayor, or police magis- trate, either in the county, city or town where such master resides, or in any county, city or town where such abscond- ing apprentice may be found ; and any such justice, mayor, or police magistrate may, by warrant under his hand and seal, cause such apprentice to be apprehended and brought before him, or some other justice of the peace, and upon hearing the complaint, may determine what satisfaction shall be made by such apprentice to his master ; and in case such apprentice shall not give or make such satisfaction immediately, or if the satisfaction be of such a nature as not to allow of immediate performance, give sufficient surety to make such satisfaction, then in either case it shall be lawful for such justice, mayor, or police magistrate to commit such apprentice to the common gaol, or house of correction of such county, city or town, for any time not exceeding three months : provided always, that such imprisonment shall not release such apprentice from his obligation to make up his lost time to his master as aforesaid : and provided also, that where such apprentice shall not have left that part of this province called Upper Canada, or having left it, shall return thereto, such master shall not proceed under this act against sucli apprentice, except within three years next after the expiration of the term for which such apprentice shall have contracted to serve, or next after such his return, as the case may be. § 8. That any person who shall knowingly harbour or em- ploy any absconding apprentice, shall be liable to pay to the master of such apprentice the full value of such apprentice's labour, which value shall be deemed and taken to be the value which such master would have received from the labour and service of such apprentice if he had continued faithfully in his sorvice, which may be recovered in any court having jurisdiction where such apprentice may be employed, or where his master may reside. § l>. Tiiat if any apprentice shall become insane, or be convicted of any crime of the degree of felony, or be sen- tenced to the provincial penitentiary, or abscond, his master may avoid the indenture of apprenticeship, from tiie time he shall give notice in writing of his intention to uo so to the other parties to the indenture, either by serving them with such notice or copy thereof, or by inserting the same in some newspaper of the county or city where such master's establishment is situated, or in the Canada Gazette : Pro- vided always, such masler make such election within one 38 ^ppvtntittn. V'' it month after the happening of the event upon which such right of election arises, but not otherwise. § 10. That the provisions of a certain act of the parlia- ment of this province, passed in the session thereof held in the thirteenth and fourteenth years of the reign of our sove- reign lady Queen Victoria, intituled, An Act to extend the right of appeal in certain cases in Upper Canada, shall be held to extend and apply to all cases arising under this act, or having any reference thereto. § 11/ That nothing in this act shall be construed to de- prive the court of quarter sessions of primary jurisdiction over offences committed against this act, but that whenever the said court of quarter sessions shall be called upon to adjudicate in any matter or case arising under this act, in addition to the powers now possessed by such court, it shall have power and discretion in cases where it shall appear necessary for the full and perfect administration of justice, to annul any apprenticeship, and compel the parties to the indenture of apprenticeship to deliver the same up to- be can- celled, and make such further order as the circumstances may require. § 12. That all fines imposed and collected under this act shall be paid to the chamberlain of the city, or to the trea- surer of the county or town respectively, where the offence was committed. § 13. That the word "master," when it occurs in this act, shall include any person or number of persons, male or female, carrying on business singly or in co-partnership ; and words importing the singular number or masculine gen- der, shall include several persons, and males as well as females, unless there be something in the subject inconsis- tent with such interpretation. § 14. That any minor over the age of sixteen years hav- ing no parent or legal guardian, or who shall not reside with his parent or guardian, who shall, after the passing of this act, enter into any engagement written or verbal to perform any service or work, shall be subject to the same legal pro- visions, and have the same benefit as if such minor had been of legal age at the time of making such agreement. & 15. 'Ihat this act shall extend only to Upper Canada. The forms found under the title '■'' ISummary Conviction" may be used in proceedings under this act. Common form of Indenture of Apprenticeship. This Indenture witnesseth, that A. B. of the age of years, the son of B. G, of the township of in the county of . yeomar doth put himse shoemaker, to J an apprentice, i sents, unto the following, to be the apprentice keep, his lawful no damage to hi to his power sh master of the sa master, nor lend fornication nor shall not play i games, whereby own goods or oth his said master : haunt taverns or master's service faithful apprenti( master and all hi in consideration ( and of the sum of vince of Canada, immediately befo is hereby acknow shoemaker which shall teach and in finding and provit drink, lodging an( and moreover, (he any are to be pait ance of all and ov of the said parties them firmly by th above named to thi hands and seals, a of in the yeai Signed, sealed, in the present E. Summons of the I^ROVINCE OF County of to wit: Whereas compl "^ A. B. [L. S."] in the presence of J B. C. [Z. *S'.] E. K. Schoolmaster. C. D. [L. S.] Summons of the Master for misusing his Apprentice^ on 6 Eliz. c. 4, {Burn.) Province of Canada: County of , | ^^ ^^^ Constable of the Township of to wit: j *^ Whereas complaint and information hath been made unto me , one of her Majesty's justices of the peace in and for the said county, by A. B., apprentice to C. D., of , in rwm i ' i ' ■! 40 ^ppvtntittn. I i ■ I;- the said township, shoemaker, that the said C. D. hath misused and evil entreated him the said A. B., (bi/ cruel punishment, and heating him the said A. B. without just cause, and by not allowing unto him stiffir.ient meat, drink apparel, or as the case may be). These are, therefore, in her Majesty's name, to command yon 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 Avith according to law. Herein fail you not. Given under my hand and seal, the day of &c. Summons of the Apprentice on complaint of the blaster, on 5 Eliz. c. 4, (Burn). Province of Canada: County of , | ^ ^^^ Constable of . to wit: j Whereas complaint and information hath been made unto me , one of her Majesty's justices of the peace in and for the said county, C. D. of , in the said county, shoemaker, that A. B., now being an apprentice to him the said C D., is negligent, stubborn, disorderly (or as the case mni/ he), and doth not his duty to him his said master. Tliese are, therefore, to command you to summon the said A. B. to appear before me at , in tlie said township, on the day of at the house of . in tl;c afternoon of the same day, to answer the said complaint, and to be further dealt with according to law. Herein fail not. Given under my hand and seal, &c. Fopn 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 next general quarter sessions of the peace to be holden in and for tiie county of York, 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, &c. Order of discharge by four Justices at the Sessions, on the 5 Miz. c. 4, [Burn). County of , | At a general quarter sessions of the peaci', to wit: J holden at , in and for the said county, the day of in the year of the reign of our Sovereign Lady Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Q,ueen, defender of the faith, and su forth, before justices of our said Lady the dueen, assigned to keep the peace in the said county, and also to hear and de- termine divers the said county as followelh : Upon the pet said county, she of the said ma misusing and e\ ishment (or as ft likewise appear Esquire, one of i the said petition himself of the sp. B. having giver the satisfaction o seals are hereunt the quorum, do h said apprentice s from his said app betwixt the said indenture of appr withstanding. Q year first above w As To all to whom t\ Wlioreas my ap and unexpired of from the d^y of apprenticeship tliut I, the said A. lions, me hereunto set over, and by tl grant, assign and title, duty, term of soever, which I, th which I may or ou said indenture of M., do by these and to the said . notwithstanding a, the contrary, the s years, well and tri Ills commandment service shall not a that the said A. S P-. and him the s tionofa ,vvhic manner that he ca 6 a nppvtntittn. 41 termine divers felonies, trespasses and other misdemeanors in the said county committed, and of the quorum — it is ordered as followelh : Upon the petition of A. B., apprentice to C. D., of in the said county, shoemaker, to be relieved upon certain neglects of the said master in instructing him in his trade, and in misusing and evil entreating the said apprentice by cruel pun- ishment (or as the case ma// 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 petitioner, and having proved nothing whereby to clear himself of the spid complaint; but on the contrary, the said A. B. having giver 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,. pronounce and declare, that the said apprentice shall be, and is hereby discharged and freed from his said apprenticchood. AnJ his is to be a final order betwixt the said master and apprentice, any thing in their indenture of apprenticeship, or otlierwise to the contrary not- withstanding. Given under our hands and seals, the day and year first above written. Assignment of an Apprentice. To all to whom those presents shall come, I, A. M., of send greeting : Whereas my apprentice A, P., hath divers years yet tocoine. and unexpired of liis apprenticeship, to wit: whole years from the day of now last past, as by his indenture of apprenticeship to me sealed dolli appear. Now know ye, that I, the said A. M., for divers good causes and considera- tions, me hereunto moving, have given, granted, assigned and set over, and by these presents do fully and absolutely give, grant, assign and set over, unto A. S. of , all such right, title, duty, term of years to come, service and demand wliat- soever, which I, the said A. M., have in, or to the said A, P., or which I may or ought to have in him by force and virtue of the said indenture of apprenticeship ; and moreover I, the said A. M., do by these presents covenant, promise and agree, with and to the said A. S., his executors and administrators, that notwithstanding any thing by me, the said A. M., to be done to the contrary, the said A. P. shall, during the said term of years, well and truly serve the said A. S., as his master, and his commandments lawful and honest shall do, and from his service shall not absent himself during the said term; provided, that the said A. S. shall well entreat and use him the said A. P., and him the said A. P., iii the craft, mystery and occupa- tion of a , which he the said A. S. now useth, after the best manner that he can or may, shall teach instruct and inform, or 6 i ■ k: L i I :^ ;., %i I'J 42 ^ppvot^tv^. 1 r.' ■! cause to be tauglit, instructed and informed, as much as there- unto belongeth, or in anywise appertaineth, and shall also, during the said term, find and allow unto the said A. P. suffi- cient meat, drink, apparel, washing, lodging, and all other things needful or meet for an apprentice. In witness, &c. APPROVERS. An approver is a person who (when indicted of treason or felony and arraigned for the same), confesses the fact before plea pleaded, and appeals or accuses others, his accomplie of the same cripie, in order to obtain his pardon ; in this ca he is called an approver. Such approvement can only be in capital oifences, and is as it were, equivalent to an indictment ; for the appellee is equally called upon to answer it ; and if he hath no reasonable or legal exceptions to make to the !ipi)rovor, (which Avcrc formerly very numerous), he must put himself upon his trial, and if found guilty must suffer judgment, and the approver shall have his pardon ex debito juntitiw. . On the other hand, if the appellee be acquitted, the approver shall receive judgment to be hanged, upon his own confession of the indictment ; for the condition of his pardon has failed, viz., the convicting of some other person, and therefore his conviction remains absolute. — '5 Jiifit. 129; 4 BL Com. 230; 2 Hale, e. 4, 29; 2 Haw. e. 24. But this course of admitting approvements has long \ disused, and the law upon the subject is now become mo matter of curiosity. But what has most contributed to remler the system of approvement obsolete, is the practice which has now prevailed for many years, of the committing magistrate admitting an accomplice to become a witness (or as it is gen- erally termed king's evidence) against his fellows, upon an implied confidence, which the judges of gaol delivery iiave usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and all other felonies, to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted. — 4 BL Com. 33], And Bce post title ^^ King's Evidence.'' ARBITRATION. By 9 & 10 W., c. 15, § 1, all merchants and others, desi- ring to end any controversy (for which there is no remedy but by personal action or suit in equity) by arbitration, may agree that their submission of the suit to the award of any persons shall be made a rule of her Majesty's courts of record, and may inse tlio condition an affidavit o: such affidavit and a rule sh submit to, an( in case of dis( all the penalti accordingly ; any other coui oath tliat the and that such Any arbitra undue means g law or equity, I'oinpluined of arbitration, be arbitration ma( Articles of a<) between A. H. ° olher part. \\\ (I I' • III ndiiKj, '■Hiho h;i ichovi, to u:ho7n,and in tchat maimer, the cotta of nil thr pnrtif.s in such cause ur suit shall he j)aid''^) to the con- sideration, judgment and arbitrament, and final award of , being a person indifferently named and chosen by the parjies hereto, as an arbitrator in the premises; and further, that the said reference and submission shall and may, in pursuance of the statute in thtit behalf made and provided, be made an order of her Majesty's said court of Glueen's Bench, if the said court shall think fit to order the same. Now these presents witness, that for the consideration and purposes aforesaid, it is hereby declared and agreed upon, by and between the said parties to these presents, that they the said parties hereto, and each of them, their and euchof their heirs, executors and administrators, on his and their respective parts, shall and will well and truly stand to, abide by, perform, fulfil and keep, the order, arbitra- ment, linal determination, and award of the said the arbi- trator so as aforesaid indifferently named and chosen by them the said parties hereto, to adjudge, arbitrate, determine, order and award between them, of and concerning all questions, titles, controversies, dilierences and disputes, now pending or subsist- i ' 'i 4 ¥' ' i m:-i 1 ' ■ ■'■ iM 44 ^rdiltatfon* i^ lii- ing between them in the premises, and also by whom and in what manner, and to whom the costs in the said suit are or ought to be paid, so as the said arbitrator shall make such his order, arbitrament, final determination and award in writing, under his hand and seal, ready to be delivered to the said par- ties, or such of them as shall require the same, on or before the day of next ensuing the date of these presents. And it is hereby agreed by and between the said parties hereto, that no action at la>v or suit in equity, shall be commenced or pro- secuted by any or either of them against the caid , for or on account of his award, to be made pursuant to this agreement. In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered, ) A. B. [L.S.^ in the presence of j CD. [L./S'.] E. F. The Atvard. To all to whom these presents shall come, I, of , yeoman, send greeting : Whereas (Jwrc recite the stihject matter in disjmte, and the otjree- ment to refer the same to arbitration, an in the above form.) Now know ye, and these presents, witness, that I, the said , having taken upon mj'solf the said reference, and having heard the statement of the parties and their witnesses, and having examined the matters and proofs produced on both sides, and having investigated the transactions and accounts by and be- tween the said parties, and maturely considered the same, do make my award in manner following, that is to day: — I do hereby award and determine that there is now justly due and owing to the said A.B. from the said CD. the sum of £ upon a balance of account: and I do award, order and direct that the said CD. shall pay the said sum of J£, to the said A.B. or his order, within after the publication 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 ilie said parties shall pay his own costs, charges and expenses of and concern- ing the said suit, and of all matters whatsoever attending the said reference : (a) and 1 do further order and direct that the costs and charges of and attending this my award shall be paid equally between the said parties. In witness whereof, I have hereunto set my hand and seal, the day of , 18 . Signed, sealed, and delivered, | in the presence of ) (a) Tbo arbitrator may award otherwise, as he may think proper, and award either party to pay the whole. M The arraig the bar by hi hand, m orde the indictmen and demandi; guilty." Tb( how he would and my coun any person wl for treason, fc "not guilty," further form, the country fo order a jury f( §15. Ifanj any indictmen misdemeanor, i directly to the it shall be lawi the proper offic such person, ar and effect as if The prisonoi] ment, without An arrest is, straining of the coming to ans^ and to such an tion, are equa arrested unless justify holding A warrant m privy council, 01 by justices of t A justice in; a jurisdiction o) accused to apf Banc V. 3Ietliiu Thus u warr^ and breachea of ARRAIGNMENT. 45 The arraignment of a prisoner consists in calling him to the bar by his name, and commanding him to hold up his hand, m order to identify his person, reading over distinctly the indictment to him, that he may understand the charge, and demanding of him whether he is "guilty "or "not guilty." The practice formerly was to ask him, in addition, how he would be tried — to which the answer was — " by God and my country." But now, by 4 & 5 V., c. 24, § 14, if any person whatsoever, being arraigned upon an indictment for treason, felony or piracy, shall plead thereto a plea of "not guilty," such person shall by such plea, without any further form, be deemed to have put himself or herself upon the country for trial, and the court shall, in the usual manner, order a jury for the trial of such person accordingly. § 15. If any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information in every such case, it shall be lawful for the court, if it shall so think fit, tc order the proper officer to enter a plea of " not guilty " on behalf of such person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same. The prisoner should stand at the bar till he receives judg- ment, without irons, shackles or bonds. — 2 Hale, 219. ARREST. An arrest is, in the criminnl law, an apprehending or re- straining of the person of any individual, in order to be forth- coming to answer an alleged or suspected offence or crime; and to such an arrest all peisons whatsoever, without distinc- tion, 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. Coin. 289. Arrest by Warrant. A warrant may be granted, in extraordinary cases, by the privy council, or any of the secretaries of state, but ordinarily, by justices of the peace. — 1 Ld. Raym., 05. A juhtice may grant a warrant in all cases where he has a jurisdiction over the offence, in order to compel the person accused to appear before him. — 12 Co. 130 ; 2 llaio. 34 ; Bane v. Methuen, 2 Biny. 63. Tiius a warrant may be granted in all treasons, felonies and breaches of the peace, and also for all such offences as a I-. ' i I 't ! '\ : t'l',:^i !;t r&m i!'^4i ' ' r I 1 i ll ?8 ^1/ t]M3 .,■ If l,:|. •1h ^- n? 46 ^vvt^u I f. : i' f' .""f ^\\ t. justice has power to punish by statute. — Ibid. So a justice may grant a warrant against an offender charged on oath with having published a libel, and compel him to find sureties. — Butt V. Oonant, 1 Brad. ^ B. 548. It may be issued also to apprehend a person accused of felony, though not indicted, or to apprehend a person suspec- ted of felony, though the original suspicion be not jn the justice issuing the warrant, but in the party that prays it, for the justice is the competent judge of the probability offered to him of such suspicion. — 2 Hale, P. 0, 108, and see 34 JSdw. III. e. 1. But no warrant should in any case be grant^-d Avithout an examination upon oath of the party requiring it, as well to ascertain that there is a felony or other crime actually com- mitted, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. — 2 Hale, 100. The reasonable grounds of suspicion are — common fame ; being found , in such circumstances as induce a strong pre- sumption of guilt ; the flight or escape of the person suspected ; being found in evil company; or living an idle, vagrant and disorderly life. — 2 Haw. 70. 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 constable or other peace officer, (or it may be to any private person, by name — Salk. 170.) requiring him to bring tlie party, cither generally before any justice for the county, (or district,) or only before the justice who granted it: the warrant in the latter case being called a special warrant — 2 JTaw. 85; 4 5/. 290. A general warrant to apprehend all persons suspected, without Jiauiing or describing any person in particular, is illegal and void, for it is uncertain. — 1 JIalc, 580; 2 Ifaw. 82. In like manner, a blank warrant, filled up by a third jjcrson, with the name of an officer after the warrant is signed and scaled by the magistrate, is illegal. — Stocklei/'s <-as(; 1 J'Jast. P. 0. 310 ; Houson v. Barroiv, T. R. 122 ; Stevenson s case, 10 ,S'^ Tr. 402. The cause of the arrest shruld be stated with sufficient certainty on the face of the warrant, in order to shew tlu' jurisdiction of the court or magistrate granting it. When a warrant properly penned is received by the officer, he is bound to execute it Avithin the district for whicli the jurisdiction extends; and the officer will (by 24 (J. II., c. 44) be in that case indemnified, even though the magistrate should not have strict authority to grant it. — Bl. 291. The warran backed, that i before it can 1 II., c. 25, anc 16 V. c. 179, When a co a warrant, sufi come again an him by force c and put himsel seems that the carry him befoi And if the although he gc county.— Z>a^^ A justice of apprehended, b\ ' or breach of th^ see 34 IJdio. IIJ So the sherif within the count^ Com. 292. So also a cor hroadi of the pet i'oi-e a justice oft committed, or a d to ensue, he may party, notwithsta ""»J, but in that] to the constable, scrupulously into I cannot do this uJ suspicion to his of And aitiiough I I'as been conmiittl warrant on a chfif reasonable cause , even if, without ar, ;ihle cause of susil And if one mel "'a Ml*' .'i U * ' prevent a probable felony, (2 ffale, 88; or, according to Dalton, e. 116, § 3) even a probable battery or assault. WateJimen, who are appointed by the statute of Winchester (13 JEJdtu. I.) to keep watch 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 particularly night- walkers and disorderly persons, and commit them lo custody till the morning. — 2 Hale, 98. By 4 & 5 v., c. 25, § 55, any person found committing any offence punishable by indictment, or upon summary conviction under this act, may be apprehended without a warrant by any peace officer, or the owner of the property. The 4 & 5 V., c. 26, § 28, contains a similar provision for offences under that act. By private persons. Any private person, who is present when any felony is committed, is bound by the law to arrest the felon, on pain of fine and imprisonment if he escape through his negligence. —2 Bate. 74. So where an indictment is found against a party, a private person may arrest the offender. — Dalt. c. 170, § 5 ; 1 Ilaiv. c. 28, § 12 ; 1 East. P. 0. 301. A private person may arrest any suspicious night-walker, ji- a common cheat, in order to take him before a justice. — 1 Jones, 249; Cro. Car. 274; 2 llol. Ab. 546. By 18 v., c. 92, § 40, (the criminal law amendment act) it is enacted that it shall be lawful for any person whatsoever to apprehend any person who shall be found committing any offence against the provisions of this act, or any indictable offence in the night, and to convey him, or deliver him to some constable or other person in onler to his being conveyed as soon as conveniently may be, before a justice of the peace, to be dealt with according to law. The manlier of making an Arrest. The party arrested should have due notice of the officer's authority.— 1 Hale, 458, 470; 1 Haw. e. 31, §49, 50; Fost. 310 ; Kel. 136. But otherwise, if the officer and his business be known. — MackaUy's case, 9 Co. 59; Pew's cage, Ore. Car. 183. And this will apply as well to a special bailiff as to a known officer. — 2 Kuss. 787. After a due notification to the party, a bailiff juratus H cognitus (sworn and known) acting in his own district, need not shew the warrant by which he is constituted bailiff — 1 ffale, 458, 4 315: or, as i to execute.— But if he a ™only known — ^a^e, 459; If a const authority beco the productioi ensign of autl Fast. 310; Ki An arrest ir and of the su party — 9 Co. •Bare words ^ on the person, comes into a r locks the uoor, Cas. temp. Har J^oors and v order to make a other criminal p signify to those request adraittan J>alt. i 'i ::rjiy V ).. 50 ^vvtnt ■0. I ♦ 9}i' i.^ or any part of such penalty to the king. — 2 ffaw. c. 14, § 5. But in this case the officer, if requirea, must shew the warrant, and suffer a copy to be taken. — 27 Q-. II., c. 20. So when there is an affray in a house, in the view or hear- ing of the constable, and manslaughter or bloodshed is likely to ensue, he may break open doors to keep the peace. — 2 Hale,^b ; 1 Haw. 137 ; 2 Haw. 87. So if there be a disorderly drinking or noise in a house, at an unreasonable time of night, especially in inns, taverns or ale-houses, the constable or his watch (demanding entrance and being refused) may break open the doors, to see and suppress the disorder. — Hale, 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. 78. But if it be upon a fresh pursuit, the officer (it seems) should have a warrant. — 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. What is to be done after making an Arrest. When the arrest is by warrant, the officer who has made it should forthwith bring the party before a magistrate, ac- cording to the direction of the warrant. If the warrant be to bring the defendant before any justice of the county, then the officer may bring him before what justice he thinks fit ; for the defendant himself has no election in the matter. — 1 Hale, 582; lb. 112. If the time be unseasonable, as, in or near the night, whereby he cannot attend the justice ; or if there be danger of a present rescue; or if the party be sick — then the con- stable may keep the party in a house, or any place of security, till the next day, or such time as it may be reasonable to bring him. — 2 Hale, 120. And after the officer 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 should be questioned for what he has done upon it. — Ld. Raymond, 1196. For forms of warrants see ^'■Indictable Offences," " >S'uw- mary Conviction.'' ARSENALS. See ''King's Stores." Arson, at burning of a an offence of the degree oj The statut( c. 1;25H. ^ c. 7 ; all of wi By Stat. 6 or carelessnes forfeit £100, hard labour ft And now 1 unlawfully anc person being r being convicte shall unlawful chapel, or meei out-house, wan barn or granj carrying on an whether the sa' sion of the offe shall be guilty be liable, at th( hard labour in term not less other prison or ing two years, ciously set fire charcoal, or wo felony, and beii cretion of the provincial peni any term not any other prisi exceeding two . BylO&ir ling house by tl substance, is m' stance." % 12 v., c, room, seminary purpose of edu Mvum. 51 ARSON. Arson, at common law, means the malicious and wilful burning of a house, or out-house, of another man ; and being an offence of very great malignity, was always considered of the degree of felony. — 1 ffaw. 105. By Statute. The statutes relating to this offence are the 23 H. VIII., c. 1 ; 25 H. VIII., c. 3; 4 & 5 Ph. M., c. 4; 22 & 23 C. II., e. 7 ; all of which are now obsolete. By Stat. 6 Anne, c. 81, if any servant through negligence or carelessness shall set fire to any dwelling house, he shall forfeit £100, and in default of payment be committed to hard labour for eighteen months. And now by stat. 4 & 6 V., c. 26, § 2, whosoever shall unlawfully and maliciously set fire to any dwelling-house, any person being resident therein, shall be guilty of felony, and being convicted thereof shall suffer death. § 3. Whosoever shall unlawfully and maliciously set fire to any church, chapel, or meeting house for religious worship ; or any house, out-house, ware-house, office, shop, mill, malt-house, hop-oast, barn or granary, 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 shall then be in the posses- sion of the offender, or in the possession of any other person, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceed- ing two years. § 17. Whosoever shall unlawfully and mali- ciously set fire to any stack of corn, grain, pulse, peat, coal, charcoal, or wood, or any steer of wood, shall be guilty of felony, and being convicted thereof, shall be liable, at the dis- cretion of the court, to be imprisoned at hard labour in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. By 10 & 11 v., c. 5, § 1, destroying or damaging any dwel- ling house by the explosion of gunpowder, or other explbsive substance, is made felony. — See post title " Explosive Sub- stance." By 12 v., c. 20, setting fire to any school-house, lecture- room, seminary of learning, college, or building used for the purpose of education, or any village, town or city hall, or to ' 'S ': ivWi ■;■ ( i'ili?' m i^ i- 1|:' ii' 62 MvtitUu of tfie ]9ea(cr. p f |: 't i •! f: i|' 11 i' J ;hi' any railroad station house, steam or fire-engine house, or toll- booth, or any other building used or employed as a mechanics' institute or as a public library, or to any hall or building used by any body or society of persons by whatever name or designation they may be known, and whether they are associ- ated for educational, plilanthropic or benevolent purposes, or for any other lawful purpose, or to any museum or repository of curiosities, shall be felony, and the offender liable to im- prisonment in the penitentiary for his natural life, or for any term not less than three years, or to imprisonment in any other prison for any term not exceeding two years. By 18 v., c. 92, § 34, if any person shall wilfully and maliciously set fire to any station-house, engine-house, ware- house, or other building belonging or appertaining to any railway, lock, canal, or other navigation, or to any goods or chattels being in any building, the setting fire to which is made felony by this or any other act of parliament, every such offender shall be guilty of felony, and shall be liable to be punished as in the next preceding section of the act is mentioned. § 35. If any person shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, straw, hay, coals, charcoal or wood, he shall be guilty of felony, and upon conviction, liable to be imprisoned in the provincial peniten- tiary for a period not less than two, nor more than five years. For forms, see ^^ Indictable Offences." 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 Court of Chancery or Queen's Bench, or before a justice of the peace ; and such court or justice is bound to require the party to find securities to keep the peace towards the exhibitant, upon the latter making oath that he is actu- ally under such fear from the other person, and that he has just cause to be so, and that he does not require such surety out of malice or vexation. — 1 Haw., c. 60, § G, 7. And all persons whatsoever under the Queen's 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. — lb. § 2, 4. Sureties of whatsoever urn married womer not to be bount When the a V^oce, the partj unless he offer g not commit him required, and hj case must shew whose suit.— -1 J The proper cc to take the infor with a statemen mduce the comt property: upon for bringing the before him, he mi sureties to keep t bound over to app to keep the peace plaining, and this i^Haw., c. 60, § bmd over the parti be stipulated in t the sessions, whej fresh security, wit] for non-appearanJ except reasonable] and this opinion iJ Court of Queen's J the peace is auth] J'nnted time, (e.g 1 and that he need nl - ^- & A. 278. I A warrant for til only to whom it is any door on being of his cominf. 2 ■ If the Avarrant isl tlie justice grantinl offender may be tl may take him to pi such justice 1 /J being apprehended! sureties, the officer MvtitUu of tiie ]9(ate. 58 Sureties of the peace may be required from any person Tvhatsoever under the degree of nobility ; but infanta and married women 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 can- not commit him for not finding security, until he has been required, and has refused to do so ; and the warrant in that case must shew the cause for which it is granted, and at whose suit. — 1 Baw., c. 60, § 9 ; Bex v. Wilks, lb. 5. The proper course in such a case would be for the justice to take the information on oath, of the party complaining, with a statement of the particular facts or menaces that induce the complainant 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 com- plaining, and this is the common form of the precedent. — 1 Haiu., c. 60, § 16. It is better, however, for justices to bind over the parties to keep the peace a reasonable time, to be stipulated in the recognizance, rather than to appear at the sessions, where the offender would be obliged to find fresh security, without any new offence being alleged ; and for non-appearance his recognizance would be forfeited, except reasonable cause shewn, by sickness or otherwise; and this opinion is corroborated by a recent decision in the Court of Queen's Bench, which determines that a justice of the peace is authorised to take surety for the peace for a limited time, (e.g., two years,) according to his discretion, and that he need not bind the party over to the next sessions. •J B. k A. 278. A warrant for the peace mast be executed by the person only to whom it is directed, who is authorised to break open any door on being refused admittance and stating the cause of his coming. — 2 Haw., c. 14, § 2. If the warrant is special, the party must be carried before the 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. 60, § 13. If the accused, on being apprehended, refuse to obey the warrant, or to find sureties, the officer may, without further warrant, convey I ; i^-«r \:\ r 'ii .^! ^ n B,l 54 ^vUtltn of tit Vesce. .Ir* ■if : k i- 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 JT. IT. 112; Dalt. c. 118. An officer not doing his duty may be indicted and fined at the sessions. — Dalt. c. 118. If the sureties are insufficient, the justice may compel the party to find better. — 0. 116, 119. But if the sureties should die, the principal is not compellable to find other, 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 instigation. — Dalt. c. 121. A justifiable assault is no forfeiture. — 1 ffaw., c. 60, § 23, 24. If the recognizance is made to keep the peace generally^ it shall be deemed to be during the party's life ; and as such recognizance cannot be discharged, it should not be so gritited on slight grounds. — Dalt.^ c. 119, 120. But it is discharged upon the death of the Queen, 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 com- plaining party. — lb. If the recognizance is to keep the peace towards the Queen and all her subjects, the sessions may discharge it, unless on proclamation some person appears to demand sureties upon warrantable cause ; but if it is made to keep the peace with a particular person, the sessions will not dis- charge it, though the person requiring it do not appear; and the court may bind over the party to the next sessions. —Dalt., c. 120. If the party accused be in prison for want of sureties, on the death of the party demanding the peace, he shall he released, or if he offers sufficient surety while in prison. — Dalt., c. 118. — See also post title " Surety for good Be- haviour." Information to require Surety of the Peace and good behaviour. Province of Canada : County of , I The information and complaint of A. B., of to wit. I , taken on oath before me, the under- signed, one of her Majesty's justices of the peace in and lor the said county of at in the said county this day "I , 18 who .saith that C. D., of , yeoman, did, on'tlie day of , threaten the said A. B., in the words, or to the effect following, that is to say, {Set tliem out with the circumstan- ces under which they were used) and that from the aliove and other threats used by the said C. D. towards the said A. B., he, the said A. B., is bodily harm, ar required to find (rood behaviour B. also saith, th reqmre such su I'^.wiii, but me injury. Sworn before ( Provinck of C County of , ; to wit. ' j Whereas A. B personally come 1 justices of the pej day made informa ' yeoman, did b'^at. &c., (here/ul and other threats u; he, the said A B some bodily harm, justice, that the sa f" 'es to keep th him the said A B J'ately upon sight* L>- before me, to fin ance at the next m holden in and for ilj the premises, and i there enjoined him , f^« of good behavif' people, and especit my hand and seal, a Condition of Hi The condition off 'hat 'f the within bJ the next court of gel hoiden in and for "hat shall be then in the mean time sli viour towards her mI ally towards A. B (\ ensuing, then the iaf stand in fulJ force ar Condition oftheJil out al The condition of ^ttitUn 0f ir- !'■ ! 1 'I » ■Mmv ' 56 MvUtUu Of t||( Veate* h ;r. above bounden C. D. shall keep the peace, and be of good behaviour towards her Majesty and all her liege people, and especirtlly towards A. B. of , for the space of one year, (or longer if need be,) then this recognizance to be void, or else to remain in full force and virtue. Commitment for want of Sureties. Province of Canada : County of , ) To the constable of , and to the keeper of to wit. J the common gaol of the said county at , in thu said county. Whereas, on the day of instant, complaint on oath was made before the undersigned, one of her Majesty's justices of the peace in and for the said county of , by A. B. of that C. D. of on the day of , at the township of aforesaid, did &c., (J'oltow to end 0/ complaint as in form above), and whereas the said C. D. was this clay brought and appeared before me the said justice, to answer unto the said complaint, and having been required by me to enter into his own recognizance in the sum of £ , with two suffi- cient sureties in the sum of £ each, as well for his appear- ance at the next general quarter sessions of the peace to be held in and for the said county of , to do what shall be then and there enjoined him by the court, as also in the mean- time to keep the peace and be of good behaviour towards her Majesty and all her liege people, and especially towards the said A. B., and the said C. D. hath refused and neglected, («) and refuses and neglects to find such sureties. These are therefore to command you the said constable of the township of , to take the said C. D. and him safely to convey to the common gaol at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command you the said keeper of the said common gaol, to receive the said C. D. into your custody in the said gaol, there to imprison him until the said general quarter sessions of the peace, unless he in the meantime find sufficient sureties as well for his appearance at the said sessions as in the meantime to keep the peace as aforesaid. Given under my hand and seal this day of , in the year of our Lord, 18 , at in the county aforesaid. J. P. (L.S.) The form of a Supersedeas to be used where the drfendnnt finds surety before the warrant is executed upon him. Province of Canada : County of , ) J. C. Esq., one of the i' ,1 our ladv to wit: \ the Queen, assigned to k- ^ peace witl' in the said county, to the sheriflf" of the said mty, and to th constables and others, the faithful ministers ami -ubj' is of our (a) A neglect or inability to find securities is the same as a refusal at lav. said lady th( them, greet in Porasmucji hath persona and hath foui yeoman, and undertaken fo the said C. D £^^0, that he, next general c for the said co be then and th time to keep 1 Majesty and a! of , theref( you utterly for otherwise by a ^' f^M and if y( taken and impr deliver or cauj further delay, of , &c. Jielea, Province of C County of to wit. I in the year of before me, J. C. Queen assignee there remised an county, yeoman, by him the said u Given under n year of our Lord Or, if it The surety of against C. D, of I>ischargc Province of C County of to wit. county of "' in the sai( Forasmuch as Queen, in your c in the said county 8 1 E«Ji' I ^vtitltn of toe )9(ace. 67 said lady the Q,ucen within the said county, and to every of them, greeting. Forasmuch as C. D., of , in the said county, yeoman, hath personally come before me at , in the said county, and hath found sufficient surety, that is to say, E. F., of yeoman, and E. IL, of , yeoman, either of whom hath undertaken for the said C. D., under the pain of £20, and he, the said C. D. hath undertaken for himself, under the pain of £40, that he, the said C. D., shall personally appear at the next general quarter sessions of the peace to be holden in and for the said county, then and there 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 or good behaviour towards her Majesty and all her liege people, and especially towards A. B., of , therefore, I do command you and every of you, that you utterly forbear and do cease to arresi, take, imprison, or otherwise by any means, for the said cause, to molest the said C. 0., and if you have for the said occasion and for none other taken and imprisoned him the said C. D., that then him you deliver or cause to be delivered and set at liberty without further delay. Given under my hand and seal, this day of , &c. Release of the Surety/ for the Peace, ^c. Province of Canada : County of , ) Be it remembered, that A. B., of , in to wit. \ said county, yecnian, on the day of , in the year of the reign of our sovereign lady Victoria, came before me, J. C, Esq., one of the justices of our said lady the Ciueen assigned to keep the peace within thn said county, and there remised and freely released to C. D., of , in the said county, yeoman, the surety of the j)eace and good behaviour by him the said A. B. before me prayed against the said C. D. Given under my hand and seal, the day of , in the year of our Lord, 18 . Or, if it is before another Justice, then say — The surety of the peace and good behaviour which he has against (J. D. of , in the said county, yeoman. Given, &c. Discharge of one Committed for ivant of Sureties. Province of Canada : County of , ) J. C, Esq., one of the justices of our lady to wit. \ the dueen assigned to keep the peace in the county of , to the keeper of her Majesty's common goal at in the said county, greeting. Forasmuch as C. D., in the prison of our said lady the Q,ueen, in your custody now being, at the suit of A. B., of , in the said county yeoman, for the want of his finding sufficient 8 ii ' 58 ^fiifiiattU uM natttvs. i: • 1 ; It h ■' ■ I'' sureties, &c. (as in the former jyrccedetit of a supersedeas.) There- fore, I do conunand you that if the said C. U. do remain in the said gaol for the said cause, and none other, then you forbear to grieve or detain him any longer, but that you deliver him thence and suHer 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 Articlet of the Peace- Province of Canada : County oi , "I C. 0., wifeofE. D., of in the said County, to wit. ) 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, saith, that she intermar- ried with her said husband about years ago, since which time he hath often in a cruel, barbarous, and inhuman manner, beat, abused, and ill-treated this informant, and frequently threatened to take away her life. Secondly — This informant saith, that on the day of last past, her said husband in a violent passion, (state the particular acts ofcruc/ti/.) Lastly — This informant saith, that she is actually afraid her said husband will do her some bodily injury, if not murder her, should she return home again to him; and saith, that she doth not make this complaint against her said husband out of any hatred, malice, or ill-will which she hath or bcareth towards hirn, but purely for the preservation of her life and person from further danger. Articles of the peace should have the signature of counsel. ASSAULT AND BATTERY. An assault is a forcible attempt to ilo corporf'^ injury to another ; a blow, however trifling, is a battery ; every assault, however, is not a bs't^^ry; but every battery necessarily includes an assault.--^ Haw. P. C. 263. So, striking at another, or even holding up a fist in a menacing manner, will amount to an assault. — 1 Haw. c. G2. An unlawful imprisonment is also an assault in law. — 1 Haw. c. no. An assault in some instances may bo justiilcl : thus ii party may justify an assault, molliter manim imposuit in de- fence of his goods, his wife, father, mother or child, and !i wife in defence of her husband. — 1 Ld. Ray. (12. A servant may also justify an assault in defence of his master, but doubtful whetboi- a master may do so in defence of his servant. — 1 iialk. 407. So also m servant; am tion, or wit assault 3 i_ A common the punishme the finding of Are such va luit felony, or constable in t master; and tl And any sei upon convictioi witnesses, be itr Also, any p( money won by and be imprisor % the4&5 charged with, ai •■IS niisderaeanon to commit felony revenue ofl^cer ii person acting in I person with inter of such party so offence for whic| apprehended or pursuance of any, any such case til iniprisoned for ar (if it shall so thir find sureties for . § 2(). And if i hinder any seamal trade, business of any other violencJ from working at, f «hall beat, wound with intent to detl any wheat, or otii Ket or other place violence to any pi wheat or other'gr/ to Or from any cit] ^unnult anXf fiutuvs. 59 So also may a master reasonably correct his apprentice or servant ; and a master h's scholar ; but immoderate correc- tion, 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. 417. Aggravated Assaults. Arc such as are committed by persons with intent to com- mit felony, or some 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 two justices, and upon the oath of two witnesses, be imprisoned for a year, or less.— 5 Uliz., c. 4, § 21. Also, any person assaulting or challenging another for money won hy gaming, shall forfeit to the King all his grods, and be imprisoned for two years. — 9 Arm, c. 14, § 8. By the 4 & 5 V., c. 27, § 25 : where any person shall be charged with, and convicted of any of the following oflfences as misdemeanors ; that is to say, of any assault with intent to commit felony ; of any assault upon any peace ofiicer or revenue officer in the due execution of his duty, or upon any person acting in aid of such officer ; of any assault upon any person with intent to resist the lawful apprehension or detainer of such party so assaulting or of any other person for any oftenco for which he or they may be liable by law to be apprehended or detained ; or of any assault committed in pursuance of any conspiracy to raice the rate of wages ; in any such case the court may sentence the offender to be imprisoned for any term not exceeding two years, and also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace. § 20. And 'f any person shall unlawfully and with force hinder any seaman from working at, or exercising his lawful trade, business or occupation ; or shall beat, wound or use any other violence to him with intent to deter or hinder him from working at, or exercising the same ; or if any person shall beat, wound, or use any other violence to any person, with intent to deter or hinder him from selling or buying any wheat, or other grain, flour, meal, or malt, in any mar- ket or other place; 0" shall beat, wound, or use any other violence to any person having the care or charge of any wheat or other grain, flour, meal, or malt, while on its way to or from any city, market, town or other place, with intent y: ft 4 ^ i r 1 i kmrn w-i 60 m»»mit mn nutttvn* ^ iL-' '\t^ ' ^^ ft!' to stop the conveyance of the same ; every such offender may be convicted thereof before two justices of the peace, and imprisoned and kept to hard labour in the common gaol, or house of correction, for any term not exceeding three calendar months : provided always that no person who shall be punished for a-ny such offence, by virtue of this provision, shall be punished for the same offencf^ by virtue of any other law whatsoever. § 36. And when any person shall be convicted of any offence punishable by this act, for which imprisonment may be awarded, tRe court may sentence the offender to be im- prisoned, or to be imprisoned and kept to hard labour in the Common gaol or house of correction, and also direct that the offender shall he kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. Common Assault. By the 4 & 5 V., c. 27, § 27, where any person shall un- lawfully assault or beat any other person, it shall be lawful for any justice of the peace, upon complaint of the pjirty aggrieved praying him to proceed summarily under this act, to hear and determine such offence ; and the offender, upon conviction thereof before him, shall forfeit and pay such fine as shall appear to him to be meet, not exceeding, together with costs, (if ordered,) the sum of £5, which fine shall be paid to the treasurer of the municipal district, or place in which the offence shall have been committed, and make part of tlic funds of such district ; or if the conviction be had in any place not witnin any municipal district, then such fine shall be paid over to such officer, and be ap[)licable to such purposes as other fines and penalties by law are ; and the evidence of any inhabitant of tiie municipal district shall be admitted in proof of the offence, notwithstanding such appli- cation of the fine ; and if such fine and costs (if ordered) be not paid upon conviction, (a) or within such period as the said justice shall appoint, it shall be lawful for him to com- mit the offender to the common goal or house of correction, there to be imprisoned for any term not exceeding two calen- dar months, unless such fine and costs be sooner paid : but if the justice, upon the hearing of such case, shall deem the offence not to be proved, or shah find the assault or battery (a) The 14 Si 15 V., c. 119, § 4, now authorises the amouut to be levied by distress. to have been jus ishment, and sh: forthwith make fact of such dis the party again; if such costs (a) i within such perl dismissal appoin rant to levy the to be in the said cient distress, m shall be so order gaol of the dist shall be «>"eged prisoned • any paid. § r-;. Sue payment of the a and suffered for r further proceedin § 29. When any a justice of the p( bo lawful for such the offender from faction to the pa either of them, as § 30. Ifthejustic have been accomp shall be of opinio? stance, a fit subj( case accordingly : sault in which an^ or any interest the or any execution i § 33. Any person decision under th general or quartei than twelve dnys the other party a cause and matter or decision, and si and shall also eitli enter into a recog justice of the pea( said sessions and ^fiffiiauu ntOf isattftj?. 61 to have been justified, or so trifling as not to merit any pun- ishment, and shall accordingly dismiss the complaint, he shall forthwith make out a certificate under his hand, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred : and if such costs (a) shall not be paid immediately upon dismissal, within such period as such justice shall at the time of such dismissal appoint, it siiall be lawful for him to issue his war- rant to levy the amount of such costs within a certain time to be in the said warrant expressed ; and in default of sufii- cient distress, may commit the party by whom such costs shall be so ordered to be paid as aforesaid to the common gaol of the district, county, or division where such offence shall be n^eged to have been committed, there to be im- prisoned ' any term not exceeding ten days, unless sooner paid. § T's Such certificate, or in case of conviction the payment of the amount adjudged, or imprisonment awarded and suff'ercd for nonpayment, shall release the party from all furtlier proceedings, civil or criminal, for the same cause. § 29. When any person shall be summarily convicted before a justice of the peace of any offence against this act, it shall be lawful for such justice, if he shall so think fit, to discharge the offender from his conviction upon his making such satis- faction to the party aggrieved, for damages and costs or cither of them, as shall be ascertained by the said justice. § BO. If the justice shall find the assault complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circum- stance, a fit subject for indictment, he shall deal with the case accordingly : justices not to determine any case of as- sault in which any (juestion shall arise as to the title to lands, or any interest therein, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. § 3;1. Any person aggrieved by any summary conviction or decision under this act, may appeal to the next court of general or quarter sessions . 'hich shall be holden not less than twelve days after the duy of such conviction, giving to the otiier party a notice in writing of such appeal, and of the cause and matter thereof, within three days after conviction or decision, and seven days at the least before such sessions, and shall also eitiier remain in custody until the sessions, or enter into a recognizance with two sufficient sureties before a justice of the peace, conditioned personally to appear at the said sessions and to try such appeal, and to abide the judg- ! :'' ! ' :i. i i; ; 'U\ (a) Quare — Whatcosta? 62 m»mu\t unXf fiutttvs* i;'*'. It '»■; ir '■ m If ment of the court thereupon, and pay such costs as shall be by the court awarded, and upon such notice being given and such recognizance entered into, the justice shall liberate such person, if in custody, and the court, at such sessions, shall hear and determine the matter of the appeal ; and shall make such order therein, with or without costs to either party, as to the court shall seem meet ; and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the convic- tion, and to pay such costs as shall be awarded, and, if necessary, issue process for enforcing such judgment. § 34. The court shall have power to empannel a jury to try the matter, and on the finding of the jury shall give judgment accordingly : provided, that the court shall not in any case adjudge the payment of a fine exceeding £5, in addition to the costs, nor order imprisonment for any period exceeding one month ; and all fines imposed and recovered by the judgment of the court shall be applied as other fines recovered under this act. § 40. And for the more effectual prosecution of offences punishable upon summary conviction by virtue of this act, be it enacted, that when any person shall be charged on the oath of a credible witness, before any justice of the peace, with any such offence, the justice may summon the person charged to appear at a time and place to be named in such summons ; and if he shall not appear accordingly, then (upon proof of the due service of the summons upon such person, by delivering the same to him) the justice may either pro- ceed to hear and determine the case ex parte, or may issue his warrant for apprehending such person and bringing him before himself or some other justice of the peace; or tiiu justice before whom tiie charge shall be made may (if he shall so think fit) issue such warrant in the first instance, without any previous summons. § 41. The prosecution for every offence punishable on summary conviction by virtue of this act, shall be commenced within three calendar months. For forms, see '■'' iSummary Conviction.'' Indictment for a Coiumon Assault. County of , ) The jurors for our lady the Queen, upon to wit: ) their ouih, present, that A. O., late of the township of , in the county of , butcher, on the day of , in the year of the reign of our Sovereign lady Victoria, witii force and arms, at the township aforesaid, in the county aforesaid, in and upon one A. I., ia the peace of God and our said Ja an assault, and wound and ilj- and there did, against the pea dignity. Indictment (Commencem peace of God an. did make an asi did boat, wound his hands, then said I. N. to, up( him the said I. T sides and other p said J. S., then i strike and beat, g by such H'mgmQ, as also by such k as aforesaid, in ar and other parts of hurts and wounds other wrongs, &c. I'or Assaulting c (Commencernenl one of (he constab aforesaid, and in t there being) did n being in the due J and there did beat! (as before.) J,/,/\ p/rcci/iiif ail in- our said lady the dueen then and there being, did make an assault, and him the :n (inif nt/ur j>ub/ic offirtr in the cucrution of his office. — Arch. ASSESSMENTS. By IG v., c. 182, the net 13 k 14 V., c. 67, and 14 & 15 v., c. 110 are repealed. Property liable to Taxation. All land and personal property in Upper Canada shall bo liable to taxation, subject to the exemptions hereinafter specified. — § 2. Tiie occupant of any land belonging to Her Majesty shall he liable to taxation for the land so occupied. — lb. The word "land" to include buildings, machinery, or other things so fixed to any building as to form in law part of the realty, and all trees or uuderwood, mines, minerals, \m rt:*i I'fv 1 ■. I H- T'l; ^ I r ■■» i 64 ^»ut»nmtntB. ''k:% I jl^^ quarries, and fossils, in and under the same, except mines belonging to her Majesty. — 2b. The terms "real estate" and "real property" to be con- strued as "land." — lb. The term " personal estate," and "personal property," to include goods and chattels, shares in incorporated companies, money, notes, accounts and debts at their full value, and all other property except land, as above defined. — lb. The term " property'* to include both real and personal property as above defined. — lb. Assessment Scale for Persbnal Property. £2b or more, but under j£50 £50 do. do. £100 jElOO do. do. £250 ,£250 do. do. £500 X.500 do. do. £1000 £1000 do. do. £2500 £2500 do. do. £5l'00 £5000 do. do. £10000 £10000 do. do. £15000 £15000 do. do. £20000 And so forward, the sums thenceforth increasing by £5000. No person deriving income from any trade, calling, office, or profession, exceeding £50 per annum, shall be assessed for a less sum as the amount of his net personal property, than the amoun of the last year's income, but such last year's income shall be held to be his nett personal property, unless he has other personal property to a greater amount. — § 5. Property Exempt from Taxation. — § 6. 1. All property belonging to her Majesty, Indian lands, and lands held for the public use of the province. 2. Every place of worship, church-yard or burying-ground, colleges, grammar schools, and public educational institutions, so long as such real estate shall be so used and occupied, but not if occupied by others, or unoccupied. Every public school-house, town or city hall, court-house, gaol, house of correction, lock-up house, or public hospital, with the land attached thereto, and the personal property belonging to each ; every public road and way, or public square, and the property belonging to any township, village, town, city, or county, if occupied for the purposes thereof, or unoccupied. 8. The provincial penitentiary. 4. Every industrial farm, poor-house, alms-house, house of industry, or lunatic asylum, and ( real or person of every publ] literary or sc society. 6. ^ official incomt occupants of 8- Imperial si personal prope service, who ar All public pens 10. Incomes year. 11. Mortffaff land. ^ ^ 12. Bank an( upon bank issue 13. Property, province. 14. Personal j party, excepting estate, or unpaid nett personal pro 16. Stipends < annum, 17. Household i'ands to be as; owner, if known f non-resident or o\ jn the name of thi in the name of I occupied by morl nable, saving hif occupant may dec^ special agreement Unoccupied laj theJocality, tobeJ iw'al estate of i locality; their pj holder shall be asJ 18 exempted by thl Partnership prcf ship, and where ml to be assessed in t] parties may elect wnole, producing 9 ^ ^nut^umtntu. 66 asylum, and every house of reformation of offenders, and the real or personal property belonging thereto. 5. The property of every public library, mechanics' institute or other public literary or scientific institution, and of every agricultural society. 6. The personal property of the governor, and the oflScial income of the public administration. 7. Official occupants of public property, held in an official capacity. 8. Imperial salaries, provisions, or gratuities, and the personal property of officers on full pay, or in actual present service, who are also to be exempt from statute labour. 9. All public pensions under j650 per annum. 10. Incomes derived from farms, and crops for the current year. 11. Mortgages on land, money arising from the sale of land. 12. Bank and railroad stock, subject to any special tax upon bank issues. 13. Property, stocks and securities owned out of the province. 14. Personal property equal to the debts owing by any party, excepting debts secured by mortgage upon his real estate, or unpaid on account of purchase money. 15. The nett personal property of any individual under £25 value. 16. Stipends of ministers of religion, under £300 per annum. 17. Household effects, books and wearing apparel. Lands to be assessed where situate, and in the name of the owner, if known and occupied by him, or unoccupied. If non-resident or owner unknown, and the land occupied, then in the name of the occupant. If the owner be known, then in the name of both owner and occupant. If owned or occupied by more than one party, then any one shall be hablc, saving his recourse against the others, and any occupant may deduct from his rent the taxes paid, unless a special agreement to the contrary. — § 7. Unoccupied lands of owners unknown, or resident out of the locality, to be denominated lands of " non-residents. — § 8. Real estate of incorporated conipanicL to be assessed in the locality ; their personal property exempt, but each share- holder shall be assessed for his stock, except when such stock is exempted by this act. — § 9. Partnership property to be assessed against the partner- ship, and where more than one place of business, each branch to be assessed in that locality, and if this cannot bo done, the parties may elect at which place it will be assessed for the whole, producing a certificate at each of the other places, of 9 :iV ( jfii; i!.m ,!#=!:' ii.;. 66 mnntnumtntn. H'l I id P the amount assessed elsewhere. — § 10. Any party carrying on any trade, &c., in two or more localities to be assessed proportionally in each ; or if this cannot be done, he may be assessed for part in one, and part in another, or for all at one place, at his discretion, producing a certificate at each other place ; and if no place of business, the party shall be assessed at his residence, and such assessment shall include with his own property, all personal property in his own possession, or under his control as trustee, guardian, executor, &c., and if owned or possessed, or under the control of more than one party, each shall be assessed for his share, or if held in a representative character, each for an equal portion. — § 11. Real property to be estimated at its real value, as if appraised in payment of a first debt from a solvent debtor : yearly value to be the real rack rent to be ascertained by the assessors. If more than one quarter of an acre attached to any house, &c., the overplus to be held vacant ground, to be estimated by the assessors, and six per cent thereon shall be deemed its yearly value ; and the yearly value of personal property shall be calculated at six per cent. Real estate at a less rental than six per cent, on the real value, to bo assessed according to such real value. — § 13. Assessments. One or more assessors to be appointed in and for any city, town, village, or township. — § 15. Townships, cities, towns, &c., to be divided into assessment districts. — § 16. Assessment roll to be prepared, its form and contents. — §17. Non-residents on the roll to be distinguished as such. — Ih. Parties liable to assessment to deliver to the assessors, if required, a statement in writing signed by the party of all his assessable property, under the penalty of .£5. — § 18. Penalty not exceeding ,£5 for making any false state- ment. — § 19. Parties assessed as trustees, &c., to be so designated in the assessment. — § 20. Railway companies to transmit annual statements, describ- ing the value of their real property to the clerk of the muni- cipality, and they shall deliver at or transmit by post to any station or office of the company notice of the assessment.— §21. Lands of non-residents how to be designated on the roll.— § 22. ^ Assessors to give notice to the parties of the value at which their properties are assessed. — § 23. Assessmen f^ebruary, an And delive put up a copx meeting of tht a certified cop Parties affffi fixed for the ?, the municipalii o^five memben members bein/j to decide § ; The court to or omissions as municipal electo notice of day of assessor, who sh ^f^pS of the CO ^Parties compi ciaration in the i correct the asses taJse declaration, as for perjury. Parties dissatisl to the judge of t municipality with after the decision. ot such appeal dopositing 10s. t, county court judl P'-i'dbytheappeill costs of Jiig own J corruption, when the costs § 28. Court of revisiJ remit taxes in cas] calendar months, s »n the roil § 99] Court, authorlsl mon witnesses, &cl Estimates to be I poses during the l authorised to pass at ao much in the ^uut^umtnt^. 67 Assessment rolls to be completed between the 18th day of February, and not later than 15th day of April. — § 24. And delivered to the clerk of the municipality, who shall put up a copy in some convenient public place until after the meeting of the court of revision ; and when revised, transmit a certified copy to the county clerk. — § 25. Parties aggrieved may within fourteen days after the time fixed for the return of the assessors roll, notify the clerk of the municipality, and such complaint shall be tried by a court oifive members of the municipal council ; any three or more members being a quorum, and the majority of such quorum to decide. — § 26. The court to have the power also to correct wrong entries, or omissions as to other parties, upon the complaint of any municipal elector. A list of complaints to be posted up with notice of day of hearing ; a list also to be left with the assessor, who shall notify complainants, six days before the sitting of the court. — lb. -v'f^Parties complaining against over-charge may make a de- claration in the form given, and the court of revision p/nall correct the assessment accordingly. Any person making a false declaration, to be guilty of a misdemeanor and punished as for perjury. — § 27. Parties dissatisfied with the decision of the court may appeal to tne judge of the county court, upon serving clerk of the municipality with notice of such intention within three days after the decision. At the same time giving a written notice of such appeal to the clerk of the revision court, and depositing 10s. to cover the costs. The judgment of the county court judge to be final. Costs of the court to be paid by the appellants in all cases; but each party to pay the costs of his own witnesses, except in case of wilful fraud or corruption, when the judge may order the offender to pay the costs. — § 28. Court of revision authorised upon petition to reduce or remit taxes in cases of vacant possession, for more than three calendar months, sickness, or extreme poverty, or gross error in the roll.— § 29. Court, authorised to meet and adjourn at pleasure, to sum- mon witnesses, &c. — § 30. Municipal Rates. Estimates to be made of sums required for municipal pur- poses during the current year, and the municipal council authorised to pass by-laws for levying and collecting a rate at so much in the pound as shall be sufficient to raise the ,• !' >it. ,11 'V','. '^J •U, li m t\ ;ii. ' f; W: 41 1 ' Hi : '. 68 M»utnnmtnt&* a '^ii 'tm I' sum required : any deficiency to be made up from any un- appropriated funds, or if none, then equally deducted from the sums estimated to be required. Surplus amounts to form part of the general fund, and be at the disposal of the municipality. — § 31. In counties and townships the rates to be calculated at 80 much in the pound upon the actual value of all the real and personal property therein, and in cities, towns and vil- lages, upon the yearly value.— lb. Assessment rolls to be examined annually by municipal councils of the county, for the purpose of equalising the valuation in the diflferent municipalities. — § 32. The apportionment of county rates to be based upon the assessment rolls of the preceding year. — § 33. Municipal council to direct by by-law what part of any sum required for county purposes shall be levied in any township, town or village. — § 34. Statute Labour. Every male inhabitant of any city or incorporated town or village, of the age of 21 and under 60 years of age (and not otherwise exempt) not assessed upon the assessment roll, or if assessed and his taxes are under ten shillings currency, shall pay ten shillings yearly for statutel abour. — § ^5.' Every male inhabitant of any township, between tiie ages aforesaid, and not otherwise assessed, shall be liable to two days' statute labour. Parties assessed upon the assessment roll shall be liable as follows : At not more than £50, two days' statute labour. (( «t : 50, bi x\. not more than £100, 8 days ' labour. 100, it 150, 4 150, (( 200, 5 2(10, (( 300, 300, <( 400, 7 400, «« 500, 8 500, «< 600, {) 600, (( 800, 10 800, <( 1000, 12 200 ab( jve the sum of 1000. 1 For every Unless the municipality of such township shall by by-law direct that a sum of money be paid in commutation : with power to the municipal council by by-law to reduce or in- crease the number of days' labour. — § 36. Payment of the tax under § 35, 36, in lieu of statute labour, may be enforced by distress, or committal.— §37. Statute lal to be commut land. Non-n entered on tl labour as resi( &c. If such h seer to return and if at any \ owner of non-r given to the tr by him, and sh such lands, anc shall be liable upon the aggre, of May, noeha separate parcel. Clerk of the r and deliver sucl Jay of October, -§ 39. To make out a names are not in county treasurei prescribed for do Collectors to e ^is usual place , "land payment; transmit by post inpayment nol hy distress and s| or of any goods time after one m( upon any goods , of non-residents, the roll, — § 42. i The collector tl fill ^"yji ^,m -I no surplus to[ session of the gool paid over to the ed.^§ 44. Any party as.J collection, the coll township, &c., yJ upon any goods o] f9iuutnnmtntf$* 69 Statute labour performable by non-residents in townships, to be commuted at 2s. 6d. a day, and charged against the land. Non-residents who have required their names to be entered on the roll, shall be admitted to perform statute labour as residents, and liable to fine for non-performance, &c. If such labour be not performed or commuted, the over- seer to return defaulters before the first day of September : and if at any time before the first of May next ensuing, any owner of non-resident's land, returned as such, shall have given to the treasurer of the county a list of the lands owned by him, and shall have tendered to him the taxes in full on such lands, and commutation money as herein provided, he shall be liable to the commutation for statute labour only upon the aggregate value of all the lands, but after the first of May, no change to be made in the charge against each separate parcel. — § 38. Collection of Rates. Clerk of the municipality to make out the collector's roll, and deliver such roll to the collector on or before the first day of October, or such other day as prescribed by by-law. _§ 39. To make out another roll of lands of non-residents whose names are not in the assessor's roll, and transmit it to the county treasurer, or city chamberlain, at the same time as prescribed for delivery of the collector's roll. — § 40. Collectors to call at least once on the party taxed, or at his usual place of residence, or place of business, and de- mand payment ; and to non-residents entered on the roll, transmit by post a statement and demand. — § 41. If payment not made, the collector shall levy with costs by distress and sale of the goods and chattels of the party, or of any goods or chattels in his possession ; and at any time after one month from the delivery of the roll, may levy upon any goods or chattels which he may find on the land of non-residents, for the taxes inserted against the same on the roll.— § 42. The collector to give six days* notice of sale. — § 43. The surplus to be paid, if unclaimed, to the party in pos- session of the goods. But if iLe right be contested, then to be paid over to the treasurer, &c., until such right be determin- ed.— § 44. Any party assessed removing from the locality before collection, the collector may levy and collect such tax in any township, &c., within the county in which he shall reside, upon any goods or chattels in his possession thereon. Taxes Af-Ul i-n i «i IHi: 1% 1 1 I' I not otherwise recoverable may be recovered by action at law, and in the meantime be a special lien on the land. — § 45. Collectors required on or before the 14th December, in each year, or on such other day appointed by the municipal council, not later than the first day of March, next follow- ing, to return collection roll and pay over amount to the treasurer. — § 46. Taxes remaining unpaid to be specially returned. — § 47. Non-residents. Crown land commissioner to furnish county treasurer, annually in the month of January, with a list of lands grant- ed or leased ; treasurer to furnish a copy to the clerk of the municipality, who shall furnish the assessors with a statement shewing what lands are liable to assessment. — § 48. Treasurer of the municipality, within 14 days after the time for the return and settlement of the collector's roll to furnish treasurer of the county with a copy of the roll shewing payments and arrears. — § 49. After collector's roll has been returned, the collection of arrears to belong to the treasurer of the county only. Partial payments not to be received. But he may receive those for any subdivision of a lot established to his satisfaction. — § 50. Lands on which taxes remain unpaid to be entered in books kept for that purpose by the county treasurer, &c. — § 51. Lands omitted in the assessment roll, to be entered on the collector's roll of the year following, and charged with the arrears. — § 52. Ten per cent, to be added yearly to taxes in arrear. — § 53. County treasurer, authorised to pay arrears upon lands of non-residents, by warrant under hand and seal to the sheriff, upon any goods or chattels found thereon. — § 54. Arrears of taxes oii lands remaining fov Jive years to be levied by warrant of the treasurer to the sheriff. But tho municipal council may extend the period. — § 55. Distinction to be made in such warrant and sheriff's adver- tizements between lands leased by the crown, and those granted by patent, and the interest of a lessee or locatee only to be sold. — § 50. List of lands and arrears to be prepared and published bv the sheriff in the Government Official Gazette, and in some local newspaper, with the day of sale, &c., which shall be more than three months after the first publication ; a similar adver- tisement to be posted at the court house, at least three weeks before the sale. — § 57. In case of distress found on the land after the receipt of the warrant, t not to invalida If the taxes of the land as i ence such part of the owner to make return of ^oney. And i andifthepurch ihe sheriff tc the land sold, the -ihe purchase] deemed the own tion or waste ; bi to be cut or othe the treasurer of t cease R Qi Provision for , coming into opera Sheriff to rece Iccted, besides fee Owners entitled sale on paying or i \y the purchaser, ■, shall give the parti bo evidence of the] J/ the land not i to deliver a deed ol the execution of sul .^ Provision respecj Sheriff to enterl conveyed § 6'7. f Moneys received! residentJandstoconI All arrears to fo them.— § r,0. L Provision for issul resident land fund." ^or payment of 1 Su'-plus of the % ••loiong the municipl treasurer not tof taxes, but to receivd An annual stater treasurer to the coi provincial secretary Muntnmatntn. Tl the warrant, the sheriflf required to levy, but default herein not to invalidate any sale. — § 58. If the taxes not previously paid, sale to be made of so much of the land as shall be sufficient, the sheriff selling in prefer- ence such part as he may consider it most for the advantage of the owner to sell first ; and within one month after sale to make return of lands sold, to the treasurer, and pay over the money. And if no bidder, the sheriff may adjourn the sale, and if the purchaser fail to pay, the sheriff may resell. — § 59. The sheriff to give the purchaser a certificate describing the land sold, the quantity, sum, and expenses of sale, &c.--§ 60. The purchaser, on receipt of the sheriff's certificate, to be deemed the owner so far as to protect the land from spolia- tion or waste ; but he shall not knowingly permit any timber to be cut or other injury done to the land ; after tender to the treasurer of the full amount of redemption such rights to cease. — § 61. Provision for collection of arrears previous to this act coming into operation. — § 62. Sheriff to receive 5 per cent, commission on moneys col- lected, besides fees for distress and sale. — § 63. Owners entitled to redeem within one year from the day of sale on paying or sending to the treasurer the amount paid by the purchaser, with 10 per cent, thereon, and the treasurer shall give the party redeeming a receipt therefor, which shall bo evidence of the redemption. — § 64. If the land not redeemed within the year, the sheriff then to deliver a deed of sale to the purchaser, with certificate of the execution of such deed for registration. — § 65. Provision respecting sales before 1851, under *6 G. IV. c. 7.— §66. Sheriff to enter in a book a description of the lands conveyed. — § 67. Moneys received by the county treasurer for taxes on non- resident lands to constitute the "non-resident land fund" — § 68. All arrears to form one charge upon the lands subject to them.— § "■ .assessment 9. '' ASSIZES. ^ By tho 7t]i W. IV., c. 1, § 8, it is enacted, that it shall be lawful for the Governor, &c., to issue yearly in the vacation between Easter and Trinity terms, also in the vacations be- tween Michaelmas and Hilary 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 (Queen's Benchj, in any suit or action which, I according to the practice of tho court, ought to be tried in buch districts respectively. And that in like manner com- missions of oyer and terminer anil general gaol delivery, 10 • 'S ■ ' ,1 i • ,1 ' .i' fc i \ 'i. i* ^ \ : m '\ F I, ■ 74 ^0fitCfe0. '! shall be issued into the several districts of the province twice in the year, within the periods aforesaid : provided always, that it shall be. in the power of the Governor, &c., to issue special commissions for the trial of offenders upon extraordinary occasions. S. 9. And ;hat whenever, from the illness of the judge, or from unavoidable detention at the last assize town, or from other casualty, it may happen that the judge appointed shall not arrive in time, or shall not be able to open such court on the day appointed, it shall be lawful for the sheriff of the district, or in his absence, his deputy, after the hour of eight o'clock in the afternoon of such day to adjourn by proclamation the courts so appointed to be opened on that day, to an Mour on the following day to be by him named, and so from day to day until until the judge shall arrive to open such courts, or until he shall receive other dircc i ^ from such judge. The 12 v., c. G3, § 21, directs the issuing of commissions into the County of York three times a year ; and the 14 & 15 v., c. 15, fixes the periods for holding such courts in said county to be on the first Thursday in January, the first Mon- day in Mr.y, and the second Monday in October, annually. The 14 & 15 v., c, 118, § 1, enacts, that deputy clerks of the crown, in counties, shall be ex officio clerks of assize. The 18 v., c. 92, § 43, enacts that it shall not be neces- sary in future to issue commissions of assize, but that such courts shall be held at such times as the judges of the superior courts of common law {Queen s Bench and Common Pleas), shall appoint subsequent to the several terms after which they are now directed by law to be holdon ; except where such courts are or shall be held at any statei! time under anv statute; and tlie judges of the several superior courts shall and may preside over the courts of ossize, and nisi prius, oyer and terminer, and general gaol delivery in the same manner, &c.,, without the issuing of any -.'omniissions, as they have been accustomed to under commission. Provision for issuing special commissions, — lb. § 44. I'rovides that it shall he the duty of the Secretary of this Province yearly, on or before the first day of tlie second term next after which the courts of assize are directed to be holden, tc transmit to the said superior courts oi law, a list of associate justices, and at the same time transmit to the shorifts a similar list, and to notify such associate justices of their iippointnicnt, and such associate justices .siiall have and exercise all the powers, &c., now used and exercised by any justices associated under any such commissions as in the next precei'ang section mentioned. § 45. Pro counsel, lear any such cou: and may act superior cour An attaindi criminal capite separable cons sentence of det A person a«i flc cannot be a J-erforming the anticipation of ] ^ -inst. 213 ; 4 ^ that any one mir '^n or felony, as ni^hcxons kiJlin„ ^onU be murder . /he attainder, judgment of outia ^ut attainder d ihe immediate ( ofall the real and tfte corruption of i that an attainted ■ ancestors, nor retl nor transmit themf /{j: an attainder] a" h'3 lands, &C.J and see 4 Bl. Coni . -I nis forfeiture A .^•»e'I, so as to ;,vJ '' expressly forfcitf % 7 Arm, 0. of ^'^" *';'■" Proten.le 7'""' '' rhe di.sinl ;* any p.rson orh.. farhtone, the l;n^| '•«V"^e have been! (W (reo. ]f.,c, .Jf)^^ ''°"- ,% this sj\ ^^as .till further susl pretender.— 4 £i ^ttuintftv. 75 § 45. Provides, that any person being one of her Majesty's counsel, learned in the law, may be an associate justice of any such court for the despatch of business (civil or criminal), and may act as judge in the* absence of any judge of such superior courts. ATTAINDER. An attainder is the stain or corruption of the blood of a criminal capitally condemned, and is the immediate and in- separable consequence, by the common law, of pronouncing sentence of death rgainst him, he being then called attaint attinctug — 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 {.erforming the functions of another man ; for, by a sort of anticipation of his punishment, he is already dead in law. — 3 Inst. 213 ; 4 Bl. Com. 380. Indeed, it was formerly holden, that any one might as lawfully kill a person attainted of trea- son 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. c. 31, § 15. The attainder commences upon the judgment of death, or judgment of outlawry on a capital crime. — 4 Bl. Com. 380. But attainder does not follow until after judgment. — Ibid. The immediate consequences of attainder were the forfeiture of all the real and personal estates of the party attainted, and the corruption of his blood both upwards and downwards ; so that an 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 high treason, a man forfeits to the Queen all his lands, &c.— 26 //. VIIL, c. 13 ; H. VIII., '«. 20 ; and see 4 Bl. Com. This forfeiture relates back to the time of the treason com- mitted, so as to avoid all intermediate acts. A wife's dower is expressly forfeited by 5 & 6 Edw. VI. By 7 Ann, c. 21, it was enacted, that aftrr the death of the then protciider, no attainder for hiijh treason should oxt< nd t«' the disinhoriling of any hoir, nor to the prejudice of any p -rson other than the traitor himself; by which, sa Blaekmme, the law o^ forfeitures for high treason would this time have been at an end, had not a subsequent statute (17 Geo. II., c. 30), intervened to give them a longer dura- tion. 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. '§ 76 mtainntv. ^ }\ ■'*. hiJir & In a certain kind of treason, however, namely, that relating to the coin, it is provided by the 5 Miz. c. 11, and 18 JEliz. c. 1, that it sliall work no forfeiture of lands, save only for the life of the offender, and tbat it should not deprive the wife of her dower.— See 8 & 9 Tf. III., c. 26, and 15 & 16 Geo. II., c. 28. In petit treason and felony, the offender forfeits to the Queen all his chattel interests absolutely, and the profits of all estates of freehold during life ; and after his death, all his lands and tenements in fee simple, (but not those in tail) for the space of a year and a day. — 2 Inst. 37; 4 Bl. 385. The forfeiture relates back to the time of the offence com- mitted, so as to avoid all intermediate acts. — 4 Bl. Com. 385 ; Jffaw., c. 49, § 17. Lands are only forfeited upon attainder^ but goods and chattels upon conviction. The forfeiture of goods has no relation backwards ; those only which a man has at the time of his conviction are actually forfeited. Therefore, a traitor or felon may, bond fide, sell any of his chattels, real- or per- sodal, for the sustenance of himself and family, previous to conviction : but not if they be collusively, and not bond fide, parted with, and the object of the transfer be merely to do- fraud the crown.-— 13 Miz., c. 5 ; 3 Inst. 232 ; 2 Aaw., c. 49, § 34 ; 4 Bl. Com. 388. By *d Wm. IV., c. 5, entitled "-4n Act to take aioay Cor- ruption 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 disinheriting of any heir, nor to the prejudice of the right or title of any person other than the offender, 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 the same. By the statute 4 & 5 V., c. 24, § 17, no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment. § 21. Where any offender convicted of felony not punish- able with death, shall endure the punishment adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon under the great seal, as to the felony whereof the offender was so convicted ; but shall not mitigate any punishment on a subsequent con- viction for any other felony. . % 16 v., c. Cipal council of or city in Uppe, aha,) forreguh persons selling , dise or effects, h best bidder with such person to ti cer as shall be d( lawful for him to to sale, as afore effects within sue shall be payable f It shall be in for may be deemed ne and for imposing I Thf^ plea of aw he was lieretofore ( IS grounded upon , England, that no n life twice for the a Jiaw., c. 35, § 1. The whole of the t''G plea, in order t) "^"•^f^legitimomodoa I'le plea must i acqurtted by verdu-, prisoner, or even n tiiat at the end of tl discharged, he mal amounts to no acqul liut if an erroneof the party may, in thr . And if the party h indictment, such an J a second indictment I stance, was never T reason for tho plea el 1 ^tar. 302 ; Me,^ , J . JJut then the insuf m ihQ record of the >Vhenthedefendai AUCTIONEER. 77 By 16 v., c. 184, (repealing former acts). § 3. The muni- cipal council of any township, incorporated village, or town, or city in Upper Canada, is authorised to make by-laws (inter alia,) for regulating and governing auctioneers and other persons selling or putting up to sale goods, wares, merchan- dise or effects, by public auction or outcry, to the highest or best bidder within such municipality, and for requiring any such person to take out a license from such municipality oflB- cer as shall be designated in such by-law before it shall be lawful for him to act as an n ;tioneer, or to sell or put up to sale, as aforesaid, any go s, wares, and merchandise or effects within such municipality, and for fixing the sum which shall be payable for such license, and the time during which it shall bo in force, for making such further provisions as may be deemed necessary for giving full effect to such by-law, and for imposing penalties for the contravention thereof. AUTREFOIS ACQUIT. The plea of autrefois acquit, is a plea by a criminal that he was heretofore quitted of the same treason or felony ; and is 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. 218; 4 Co. 40; 2 Haw., c. 35, § 1. 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 legitimo modo acquietatus. — Ji. v. Wildey, 1 M. ^ 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 amounts to no acquittal. ^ — 2 Hale, 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 ho acquitted from any insufficiency in the indictment, such an ac(juittal is in general not pleadable upon a second indictment, because the prisoner's life, in this in- stance, was never placed in jeopardy, and therefore the reason for the plea entirely fails. — JJale, 248 ; 4 Co. 44, 45 ; 1 iStar. 302 ; Ilex v. Reading, 2 Leach, 593, per B idler, J. But then the insufficiency of the indictment should appear in the record of the judgment of acquittal. — 2 Bale, 385. When the defendant has been tried by a foreign tribunal of :' ! ■ ? 1,1 . !| 1 . .tl 1 ■ i 1 i 1 \- i: 78 ^utvtfoin ^tnuiU m 'k \:'& m m competent jurisdiction, it seems clear that an acquittal before snch tribunal wil' equally enure to his defence in this country ; but in this case, he should produce an exemplification of the record of his acquittal, under the public seal of that state or kingdom where he has been tried and acquitted. — Hutchin- son's ease, 8 Kes. 785 ; Beak v. Tliyrivhit, 3 Mod. 194 ; 1 Shore, 6 ; Bull N. P. 245. The identity of the party must be shewn, by averment in the pica that he was the same person charged in the former indictment. And though he be described differen'ly in the two indictments — as, if in the first place he be styled yeoman, and in the second gentleman, yet he may aver that he only was the person meant under each addition. — 2 Haw. c. 35, § 3. The identity of the offence must appear as well in law as infact.—l Str. 304. Thus, an acquittal on an indictment for felony is no bar to an indictment for a misdemeanor. — 2 Haw. c. 35, § 5. And an acquittal as accessory after the fact, cannot bo pleaded to a subsequent indictment as principal ; and the same e converso. — 2 Hale, 244; Fost. 361 ; Staundf. 105. If a man be acquitted generally upon an indictment for murder, autrefois acquit is a good plea to an indictment for manslaughter of the same pei3on ; and e converso, if he be indicted of manslaughter and acquitted, he shall not be afterwards indicted for the same death as murder. — 4 Co. Rep. 46, 6 ; Holcroft's case, 2 Hale, 246 ; Fost. 329 ; 1 Star. 305. But if A. commit a burglary, and at the same time steal goods out of the house, and he be indicted for the larceny only and acquitted, he may still b' indicted for the burglary. —Hale, 245. And so /' CO}) verso (Lord Hale says) if he be indicted for the hurghivy and acquitted, he may still be afterwards in- dicted for larceny. — Ih. 246. Bill the converse of this proposition must be received with this liriiitation, viz., that the indictment for the burglary lav the ofience only with an intent to ttfral, and not with aii actual larceny; for, if laid with an actual hirceny, a general acquittal wouhl of rourse include an acquittal of the larcenv itself.— 1 St( ,-. 3U9. If A. commit a robbery in the county of B , and onrry the goods into the county of i '., and be there indicted for larceny only, an acfjuittai upon s.ich an indictment is no bar to an indictment i'or the robbcru in the countv of B.— 2 Hale 245, 246. " . ^orthesam Jnan improper cannot be p]ea( county._2 Ha . -But if a mai into another, as county, it seemj oar to a subseqi other county.-l Yet it hath ha lor stealing a ho. ;ng the saddle, tl ^ -Hale, 246. ^here there is acquittal and th( the nature of the , TO generally be - Hatv. c. 35, § 3, M if a man be ^'i'arged to be com dieted for murder J y ^« way plea(i offence to be the sa /^o, if a man be i robberyofj. S., an ^l^r or robbery of ^"'1 aver the per.o variance i,, the su '"•'in.V surnames. ^o'-gory, on a vaVian ^Y^ '-^-^cued in tho n Pifad autrefois acou ;'f^""t'^, which sot '^'^'^' plea of autr '"•'-'/''""^ and thee •■'■\'nsuflidc.nt proof , "■'■'^"'.i-% and then. h-i ^et out in the fir«t i„ "■'^^••einfaetthesanu f -^aid in -2 Haw. . ■^*-'on avuiJuble.— i>, ■I ea\ Mutvttoin MttiniU 79 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 Haw. 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, it seems that an acquittal in one county would be a bar to a subsequent prosecution for the same stealing in the other county. — 1 Haiv. c. 35, § 4. Yet it hath happened, says Lord Hale, that a man acquitted for stealing a horse, hath afterwards been convicted for steal- ing the saddle, thoiigh both were taken at the same time. — 2 Hale, 246. Where there is a A'ariance between the record of the former acquittal and the indictment to which it is pleaded, yet, if the 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, § 3. As, if a man be acquitted upon an indictment for murder, charged to be committed on one day, and be afterwards in- dicted 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, who can be but onco killed. — 2 Hale, 244. So, if a man be acquitted of an indictment for murder or robbery of J. S., and he be afterwards indicted for the mur- der or robbery 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 Avhere 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 offence, which sot forth the instrument correctly. — 11. v, Vooqan, 1 Leach, 448 ; li. v. Heading, 2 Leach, 503, per ^Buller, J. The plea of autrefuis acquit, in H. v. Cooyan, was taken ore tenus, and the court rejected the record of the acquittal as insuflicieut proof of the plea. But if the plea had been in wrirnur, and there 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 wou'' '^^vo been available. — Deacon's C. L. I'G. ■,) ,t. '11 ! !». -i;' 1 ■f . 1(1 1 -t .. ;.&* \ 80 Mutvtfoi» ^tquit* * '^' 11 .1:1 ■ 11 An accessory may plead the acquittal of his principal^ for if there be no principal there can be no accessory. — 2 Haley 524; ZInst. 139. So, if A. charged with a felony, breaks prison, and be acquitted of the principal felony, he may plead that acquittal to any indictment for felony, in the breach of prison. — Saw- ford's case; 1 Hale, 611, 612; 2 Hale, 254. Practice. The prisoner is not entitled to a copy of the indictment to enable him to plead autrefois acquit ; but . he has a right to have the indictment read very slowly and distinctly over to him. — R. V. Vandercomh, 2 Leach, 711. The plea, as well as the replication, may in general be pleaded ore tenus. — E. v. Coogan, 1 Leach, 448. But the replioation of nul tiel record cannot be pleaded ore tenus, except by the attorney-general, but must be written on parch- ment, and handed in to the court. — 2 Leach, 715, note [a). If the indictment be for felony or treason, the defendant, besides the plea of autrefois acquit, should also plead over to the felony or treason. — Hale, Sum. 249 ; R. v. Vandercomh, 2 Leach, 708. The court upon issue joined as to the identity of the person or the offence, awards a venire returnable instanter; and upon the sheriff making his return, the jury are immediately sworn to try the issue of autrefois acquit, the counsel for the prisoner having leave to address the jury in support of the affirmative of the issue.— iJ. v. Sheen, 1 Carr. tf- P. 638 ; 1 Leach, 476. By 18 v., c. 92, § 27. — In any plea of autrefois convict or of autrefois acquit, it shall be sufficient for any defend- ant to state that ho has been lawfully convicted or acquitted, as the case may be, of the said offence charged in the indict- ment. Record of Acquittal. — {Cr. Cir Com.) County of , > Be it remembered, that at the general quarter to wit: ) sessions of the peace of our Sovereign Lady the Q,ueen, Iiolden at the city of Toronto, in and for the said county of York, on the day of , in the year, &c., before W. M., K. R., R. R., and Z. Z., Esquires, justices of our said lady tlie (iuJen assigned to keep the peace of our said Jady the Q,ueen in and for the said county of York, and also to hear and determine divers felotiies, trespasses and other mis- deeds, committed in the said county, by the oath, &c., (the grand jvry slati)i(j all their names) good and lawful men of the county aforesaid, then and their sworn and charged to inquire for our said lady the Glueen, lOr the body of the said county, Jt Js present ^^y* — ^county [s commandet ♦fee., and after uoJden at the county of Yo. ot the same r justices of our their fellows a/ person, and hai ^- saitl. that he Putteth himself '^e peace for th said Jady the Q, a jury thereupor ^"f eu. at the ne said lady the Qu sa'd, in and for t matter may be b. sad A n i .7 ^^' "•, to rec S^}]iy of the prej ^^^^«^n as tJie said «^^n^« day is g,Ve„ «»r said Jady UieC »h,ch said next .' «m Jady the Qut. ^'^^ the county of .. ' "1 the said ^"een, before W i "'hers their fellows. « J^e^'P the peace :>''nty aforesaid, anj '"-■^^J^asses and olho! -^-thasweJJtJie aueen in this bl r'""''. ' ''nd the iurl ^^««en. tried and sV premises m the inn 3'' ^'>^^'> oatJ, tJiatl ; ' «ff^'nce aforesaid ;'';» manner and 1 7 ^'is plea hath alia 7'-' hove, that the J "^-ce aforesaid, In ''^ ^^ dischaged and go n ^utvttoiu Hmnit 81 it is presented in manner and form as followeth, that is to say, — county of York, to wit. The jurors, &c. (recite the whole indictment). Whereupon the sheriffof the said county of York is commanded that he cause the said 4. B. to come to answer, &c., and afterwards, to wit, at the same session of the peace, holden at the city of Toronto aforesaid in and for the said county of York, by adjournment, on Wednesday, the day of the same month of , in the year aforesaid, before the justices of our said lady the dueen above named, and others their fellows aforesaid, cometh the said A. B. in his own proper person, and having heard the said indictment read, the said A. B. saitli that he is not guilty thereof, and concerning thereof he putteth himself upon the country ; and Esquire, clerk of the peace for the said county of York, who prosecutes for our said lady the dueen, in this behalf doth the like ; therefore let a jury thereupon come before the justices of our said lady the Q,ueen, at the next general quarter sessions of the peace of our said lady the Clueen, to be holden at the city of Toronto, afore- said, in and for the county of York, by whom the truth of the matter may be better known, and who have no affinity 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 lady the Q,ueen in this behalf, as the said A. B. have put themselves on that jury, the sr.me day is given as well to the said who prosecutes for our said lady the Queen, in this behalf, as to the said A. B., at which said next general quarter sessions of the peace of our said lady the Q,ut"n, holden at the said city of Toronto, in and for the county of York aforesaid, on Monday, the day of , in the said year of the reign of our said lady the Queen, before W. M.. G. H., F. P., and S. T., Esquires, and others their fellows, justices of our said lady the Q,ueen assigned to keop the peace of our said lady the Clueen, in and for the coimty aforesaid, and also to hear and determine divers felonies, trespasses and other misdeeds, committed in the same county, coir'^h as well the said , who prosecutes for our said lady the (^u»^en in this behalf, as the said A. B. in his own proper person ; anil the jurors of that jury, by Esquire, sheriff of the said county, to this matter empannelled and returnedr- to wit, {the names of the jntit jury) being called, come, who being chosen, tried and sworn, to speak the truth of and upoi\the premises in the indictment aforesaid, above specified do say. upon their oath, that the said A. B. is not guilty of the trespass and ofTenco aforesaid, in the indictment "foresaid, aoove speci- lied, in manner and form as the said A. B., for himself above by his plea hath alleged; whereupon it is considered by the court here, that the said A. B. of the tresspass (or felony) and offence aforesaid, in the indictment aforesaid, above specified, be dischaged and go thereof without day. 11 i; l- I 82 n ir J 'nm I'D l< 1 1* lip- AUTREFOIS ATTAINT. A person once attainted of felony, being civiliter mortuuSj and his property being forfeited to the king, cannot in gen- eral be indicted 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 j there- fore, is a good bar to an indictment for the same or any other felony of the like description.— 2 Haw. c. 36 ; 4 Bl Com. 336. But as this rule is one rather of expediency than otherwise, it does 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 autre- fois attaint will therefore, in such cases, or fof other capital offences, be of no avail ; and the party may be indicted and convicted, in order that he may undergo the higher degree of Tpyimshment— forfeiture of goods being only of secondary consideration in such cases. AUTREFOIS 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 (as in this case) suffered the penalty due for it.— Haw. c. 36, § 10; 4 Bl. Com. 336. And though no judgment may have been given upon the former conviction, still the plea of autrefois convict is a good bar to a second indictment for the same offence. — 2 Jlaw. c. 36, § 14. Record of Conviction — See *■'■ Autrefois Acquit.'' do say upon their oath, that the said A. B. is guilty uf the trespass and offence aforesaid in the indictment aforesaid, above specified, in manner and form as by the said indictment against him is alleged ; whereupon it is considered by tin- 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 tresspass and offence three shillings and fourpence, which he paid to the sheriff of the said county, in court, to the use of our said lady the (dueen ; and the said A. B. is com- mitted to the common gaol, at the city of Toronto aforesaid, in the said county, there to remain and be kept to hard labour for the space oi" six calendar months. ^ justice torial jurisdi the apprehc] out of his ji executed unJ justice of the party is resic having charge ieave to exec proof upon oa authorised by such warrant \ the warrant;" tion Act" 16 "^ 5 3. And if has been issued justice or justic escape, go into, be in any place Lower Canada, justices issuing t whose jurisdietic aforesaid, upon r ot the justice or endorsment upor execution of the endorsement sha bringing the wan originally directe ot the territorial execute the same justice of the pe; offender, when an first issued the wa jurisdiction. % the IQ V , similiar provision party residing on when apprehendec: rant issued, but wi provided always t upon the part of th . («) TI:o constable hit hun to make the requjai] BACKING WARRANT. 88 A justice of the peace has no authority beyond his terri- torial jurisdiction. He may, however, issue a warrant for the apprehension of a party who has escaped or is residing out of his jurisdiction, but such warrant cannot be legally executed unless such execution of it be sanctioned by some justice of the peace residing in the locality where the accused party is residing. This is usually done by the constable having charge of the warrant calling upon such justice "iFoife leave to execute the same within his jurisdiction, who, on proof upon oath of the signature to the original warrant, is authorised by law to endorse permission or leave to execute such warrant within his jurisdiction. This is called "backing the warrant;" with respect to which the " Summary Convic- tion Act" 16 V. c. 178 provides as follows : § 3. And if the person against whom any such warrant has been issued be not found within the jurisdiction of the justice or justices by whom it was issued, or, if he shall escape, go into, reside or be or be supposed or suspected to be in any place within this province, whether in Upper or Lower Canada, out of the jurisdiction of the justice or justices issuing the warrant, any justice of the peace within whose jurisdiction such person shall be or be suspected as aforesaid, upon proof alone upon oath (a) of the handwriting of the justice or justices issuing the warrant, may make an endorsment upon it, signed with his name, authorising the execution of the warrant within his jurisdiction ; and such endorsement shall be a sufficient authority to the person bringing the warrant, and to all other persons to whom it was originally directed, and to all constables or other peace officers of the territorial division, where the endorsement is made to execute the same in any place within the jurisdiction of the justice of the peace endorsing the same, and to carry the offender, when apprehended, before the justice or justices who first issued the warrant, or some other justice having the same jurisdiction. By the 16 V., c. 179 § 7, {relating to indictable offences) a similiar provision is made for backing warrants against a party residing out of the jurisdiction, and conveying him when apprehended Ii to the jurisdiction from which the war- rant issued, but with this special provision in addition, viz. : provided always, that if the prosecutor or any of the witnesses upon the part of the prosecution, shall then be in the territorial (a) TliO constable having charge of the warrant, should either see it signed, o/ be well acquainted with the handwriting of the justice to enable him to make the requisite oath. m^t I'll '1 ■.%* IMAGE EVALUATION TEST TARGET (MT-3) V o ^J^ A A ^ ^o % / ^ ^' 1.0 I.I 1.25 ■-121 2.5 2.2 1^ M 1.8 U III 1.6 <^ ^>: ^^ .^ "^J^/ %.>^ ^V <•> Photographic Sciences Corporation 33 WIST MAIN STRUT wnsTiR.N.Y. i4sao ( 7 1* ) 173-4503 V ^, 84 9niL ■it Vf\ > Hi i ■ f ,. proper handwriting of the justice of the peace within-men- led. I do, therefore, hereby authorise W. T., who bring- division, where such person shall have been so apprehended, the constable or other person or persons who shall hav© so apprehended such jDcrson, may, if so directed by the justice backing such warrant, take and convey him before the justice who shall have so backed the said warrant, or before some other justice or justices for the same territorial division : and the said justice or justices may thereupon take the examination of such prosecutor or witnesses, and proceed in every respect in manner hereinafter directed with respect to persons charged before a justice or justices of the peace for an offence alleged to have been committed in another territorial division than that in which such persons have been apprehended. Form of Endorsermnt in hacking a warrant. Province of Canada : ■"city {or united counties, or \ as the case may be.) oi , / Wh ^/eas, proof upoh oath hath this day been made before me ;e of her Majesty's justices of the peace in and for the sai- 'c . nty (or united counties, or as the case may he) of , th. .he name of J. S. to the within warrant subscribed is of the tionec eth to me this warrant, and all other persons to whom this warrant was originally directed, or by whom it may be law- fully executed, and also ail constables and other peace officers of the said county (or united counties, or as the case may he) of , to execute the same within the said last mentioned connty (or united counties, or as the case may be). Given under my hand, this day of in the year of our Lord , at , in the (county, &c.) aforesaid, J. L See also post titles ^^ Indictable Offences," ^^Summary Conviction." BAIL. Bail (from the French word bailler, " to deliver " (signifies the delivery 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. — Sales, P. 0. 96. By the declaration of rights, 1 W. session 2, c. 2, excessive bail ought not to be required. To refuse bail where the party ought to be bailed, (the party offering the same,) is a misdemeanor, punishable not only by the suit of the party, but also by indictment. — 2 Haw. 90 ff. P. 97. And to admit bail where it ought not to be admitted, is punishable by the judges of assize by fine, or punishable as a negligent escape at common law — IT. P, 97 ; and so if a justice take insufficient bail bail for murder ously wounded, takes bail, till t die, and the otf being severely; Bench, however committed for n case will justify ) 104 ; R, ^. gac, sufficient, the jus the party on refi Bail may be tt justice. It may evidence adduce( whom the accuse on trial, but shal] guilt as to warrai . ^ence given, be su then such justice commit the part^ division to which * 179 §15, 17 (a). One justice alor statute requires th The same statu in cases of trea; Majesty's Court 0| of the judges ther( See further on Offences,*' ''Coron ■Acknowled By statute 21 „ or procure to be a( other, not privy t( without benefit of within this statute But it is within tl enacts, " that any those who have aut the payment of ai shall be guilty of obtained, the law " corpus act 31 G. See also (a) The provisions of beforejusUoesBeemtol h iSftU. 85 insufficient bail. — Ih. A justice of the peace cannot take bail for murder. — 2 Imt. 186. And if a person be danger- ously wounded, the justice ought to be very cautious how he taked bail, till the year and day be. passed, for if the party die, and the otfender appear not, the justice 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. Lord Mohun's case, 1 Salk. 104 ; B. V. Magrath, Str. 1242. If the bail taken be in- sufficient, the justice may require bevi-er sure ies, and commit the party on refusal. — 2 Haw. 89. Bail may be taken in all cases of misdemeanor, and by one justice. It may also be taken in cases of felony, where the evidence adduced shall, in the opinion of the justices before whom the accused party is brought, be sufficient to put him on trial, but shall not furnish such a strong presumption of guilt as to warrant his committal for trial. " But if the evi- dence given, be such as to raise a strong presumption of guilt, then such justice or justices, shall by his or their warrant commit the party to the common goal for the territorial division to which he may by law be committed. — 16 V., c. 179 § 15, 17 (a). One justice alone cannot take bail for felony. The above statute requires that two justices be present on such occasion. The same statute also expressly prohibits bail being ta!».en in cases of treason or murder; except by order of her Majesty's Court of Queens Bench, or Common Pleas, or one of the judges thereof in vacation. See further on the subject under the titles ^^ Indictable Offetices," ^^Coroner." Acknowledging Bail in another man's name. By statute 21 J, c. 26, if any person shall acknowledge, or procure to be acknowledged, any bail in the name of any other, not privy to the same, he shall be guilty of felony without benefit of clergy. Bail taken before a judge is not within this statute till it is filed of record. — 1 H. H. 696. But it is within the following statute of 4 Wm., 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 action, shall be guilty of felony." If bail cannot otherwise be obtained, the law hath also provided a remedy by the habeas corpus act. — 31 G. II. See also jt)o«< title, '■'■Habeas Corpus.'' la) The provisions of the former statute 4 & 5 Y., c. 24, respecting bail before justioes seem to be superseded by this act. m ■-. m Y'i : ■]: i'Mh ii' It- fe , I'm ,1 I i'^ili lf\ :il,. !i , , ,_ t'^ 86 i, < I ■i-'v: , 1 '^i ■ i !•■; '■.] <: ; 1 It . BANISHMENT. * Bj 40 G . HI., c. 1, § 5, banishment is substituted for trans- portation ; and by § 6 of the same statute, being afterwards found at large within the province was made a capital offence. *B,v 3 W. IV., c. 3, reducing and defining what shall be capital offences, returning from banishment is not included. *By 7 W. IV., c. 7, § 1, transportation may be substituted for banishment ; § 2, and the provision of the * 40 G. III., c. 1, respecting persons returning to the province before the expiration of the sentence, shall extend to any person re- turning from transportation under this act. By 4 & 5 v., c. 24, § 25, returning from transportation or banishment before the expiration of the term, is made felony, and the offender liable to transportation for life. By 6 v., c. 5, § 4, it is enacted "that for any offence for which by any of the acts cited, (including 4, 5 V., c. 24,) or by any other act or law the offender might, if this act had not been passed, have been punished by transportation beyond the seas, . such offender may, if convicted after the passing of this act, be punished by imprisonment in the provincial penitentiary for any term for which he might have been transported beyond seas if this act had not been passed, or by imprisonment for life, if without this act he might have been punished by transportation for life. BANKS— BANKING. By 13 & 14 v., c. 21, which repeals the *7 W. IV., c. 13, § 2, it is enacted, that it shall not be lawful for any person or association of persons, body corporate or politic, or party whatsoever, except only banks, now incorporated by royal charter or by act of the legislature, and thereunto expressly authorised, or such as shall be authorised under this act, to make, issue, sign, &c., any note, bon, check, or promise in writing for the payment of money, in the nature of a bank note, or bank bill, or intended to pass as money. § 3. No bank notes shall be issued for less than five shillings, or made payable otherwise than on demand, in current coin of this province, and at some certain place within this province. J 4. A penalty of ,£100 shall be incurred by any party issu- ing, circulating, or passing, or attempting to circulate or pass, any unlawful bank note in contravention of this act. § 5. Foreign banks prohibited from opening or keeping any oflSce or place of discount or deposit, or for the issue, circula- tion, or redemption of its bank notes within this province under the penalty of £100. § 6. All such unlawful notes ;l shall be void ; loan or advanc discharge for ness of banH of bank notes, exchange, discc able securities, to the business fully exercising have power to h as security for ( any process at Ij such company oi §8. Anyindi business of bank: a city, town or vi] ofnot less than f than £25,000; s co-partnership 'to county court. $ amount of their si to commence bug receiver-general r amount of £25,00| the bank notes oj being made the i to the bank bank, cd, registered, an the amount deposit^ shall pay such nol receivable in pay,f turther deposits noi their circulation acl shall not be paid f same may be pro general, who shall / same, with costs of ten days, or the baJ defence for the non- g'ven in the Gazettl will redeem the notj provision is then mj the affairs of the ba oi the bank proper^ (*) ThiBseoMonl H^^nUn—l^^nfiinii. 87 shall be void : as well as securities given for securing any loan or advance made in such notes, as also any receipt or discharge for mone/ paid in such notes. § 7. The busi- ness of banking shall comprise the making and issuing of bank notes, the dealing in gold and silver bullion, and exchange, discounting of promissory notes, bills, and negoti- able securities, and such other trade as belongs legitimately to the business of banking. But any company or party law- fully exercising the business of banking under this act shall have power to hold property bond fide mortgaged or pledged as security for debts previously contracted, and sold under any process at law or in equity, and bought at such sale by such company or party, with power to re-sell. § 8. Any individual or co-partnership may carry on the business of banking in this province at some one place, being a city, town or village. § 9. Joint-stock banks to be composed of not less than five persons, and the whole capital not less than £25,000 ; shares not less than £10 each ; articles of co-partnership to be filed in the office of the clerk of the county court. § 10. Shareholders to be liable for twice the amount of their shares, and no more. § 13 (a). Banks not to commence business until they have deposited with the receiver-general provincial debentures or securities to the amount of £25,000, to be held in pledge for redemption of the bank notes of the bank. § 14 (6). Upon such deposit being made the inspector-general is authorised to deliver to the bank bank notes for not less than 5s. each, number- ed, registered, and coui ,er-signed by him, not exceeding the amount deposited, for circulation, and so long as the bank shall pay such notes in specie, on demand, they shall be receivable in payment of duties. § 15. Banks may make further deposits not less than £5000 at one time, and increase their circulation accordingly. § 17. If any such bank note shall not be paid in specie on demand at the bank, the same may be protested and forwarded to the inspector- general, who shall then by letter require the bank to pay the same, Avith costs of protest and postage and interest, within ten days, or the bank shall be closed (unless there be a legal defence for the non-payment of such note), and notice thereof given in the Gazette by the inspector-general, stating that he will redeem the notes to the extent of the funds deposited ; provision is then made for appointing a receiver for settling the aftairs of the bank, who is authorised to take possession of the bank property, books and papers ; and any banking !a) This section ia amended by 19 V., o. 3. b) This section also amended by the same act. 88 MmU tNfoteiy* i\ u i;::S III I: 'If,; if; ■ .,' , WM partner, associate, or shareholder, or any director, managing oflBcer or servant of such banker or bank, or other person who shall have been entrusted with the same without having any legal title to or lien thereupon, who shall have any money, prope?*ty, securities, books, £),ccounts, papers or documents of the bank in his possession or under his control, and shall not forthwith deliver the same to the said receiver, shall be held to have frauduhntly embezzled the same, and shall be punishable accordingly; and the receiver may recover possession of the same, as any party may recover property fraudulently embezzled: the receiver shall settle the affairs of the bank, and report theroon to th^ inspector- general who shall sell the deposits and apply the proceeds, first in redemption of the bank notes, and then in payment of other liabilities. The act then provides for the way in which the business and affairs of the bank are to be wound up : a schedule of bank liabilities and assets is to be filed in the county court, and a day appointed by the judge for settling disputed claims, with power to appeal to the Court of Queen's Bench against his decision. § 22. The bank may also be closed if it permit any judgment a inst it to remain three months unsatisfied, and no appeal pending. § 24. Every bank shall keep in the office a list of shareholders open to the public, and deliver copies of the bank articles to any person on demand, on payment of 7|d., under a penalty of j£100. § 27. The total liabilities of the bank never to exceed three times the amount of its capital, under a penalty of ^100 per diem for the excess. § 28. No dividend to be made out of bank capital. § 30 (a). Half-yearly accounts (on 1st January and 1st July) to be rendered by the bank to the inspector-general of bank assets and liabilities, under a penalty of X25 per diem for neglect, and if not transmitted within a month, the bank may be closed. § 36. A general statement of all the banks under this act to be laid before the legislature within thirty days after the opening of each session. BANK NOTES. By 4 & 5 v., c. 29, § 1, banking companies are required to deliver a statement in writing on the 15th May and the 15th November, annually, to the receiver-general, of the amount of notes or bills issued and in circulation at the end of each calendar month, certified by the cashier and president ; and the person or persons so certifying, shall make and sign a declaration in writing before a justice of the peace, that he or they had the means of knowing that such statement was (a) Monthly by 14 & 15 V., o. 69, g 1. correct, and th and belief. § statement shall § 3. A duty of average amount 4. The bank or statement, shall the province, to of the crown. By 10 & 11 1 lorged bank not( ject, jt?o«nitl8 " it ,%4&5V.,c shall unlawfully any sea-bank or s canal, or marsh, damaged, or shall t'liiy or maJiciousI any lock*, sluice, ] river or canal, eve and being convicte not exceeding four and maliciously cu or other materials any sea-bank or se canal or marsh, or draw any flood-gatJ any navigable rive] io obstruct or prevJ taming the navirjat] gu'lty of felonj, imprisoned for any A barrator, in lo J exciter, or maintairif m the country 1 7^ either courts of reeol tnree manners ; 1. if prkf ping possessiJ mventions and sowl whereby discord an( —1 Imt. 368. No ■ act only.— 1 ff^w, 2I 12 ISanKiEt of XlCtieriQF* 89 correct, and that it is so to the best of his or their knowledge and belief. § 2. Any wilful false allegation in any such statement shall be a misdemeanor, punishable as for perjury. § 3. A duty of one per cent per annum, imposed on the average amount of notes and bills in circulation pro tern. § 4. The bank or party neglecting or refusing to deliver such statement, shall forfeit to her Majesty £1000 for the use of the province, to be recovered with costs, as any other debt of the crown. By 10 & 11 v., c. 9, § 3, forging or knowingly uttering forged bank notes is made felony. See further on this sub- ject, post title " Forgery." BANKS OF RIVERS. By 4 & 5 v., c. 26, § 12, it is enacted, that if any person shall unlawfully and maliciously break down, or cut down any sea-bank or scvwall, or the bank or wall of any river, canal, or marsh, whereby any land shall be overflowed or damaged, or shall be in danger of being so, or shall unlaw- fully or maliciously throw down, level, or otherwise destroy any loclff, sluice, flood-gate or other work, or any nsivigable river or canal, every such offender shall be guilty of felony, and being convicted thereof shall be imprisoned for any term not exceeding four years ; and if any person shall unlawfully and maliciously cut off", draw up, or remove any piles, chalk, or other materials fixed iu the ground, and used for securing any sea-bank or sea-wall, or the barfks or wall of any river, canal or marsh, or shall unlawfully or maliciously open or draw any flood-gate, or do any other injury or mischief to any navigable river or canal, with intent and so as thereby to obstruct or prevent the carrying on, completing or main- taining the navigation thereof, every such off'ender shall be guilty of felony, and being convicted thereof shall be imprisoned for any term not exceeding two years. BARRATRY. A barrator, in legal acceptation, signifies a common mover, exciter, or maintainer of suits or quarrels, either in courts or in the country — 1 Inst. 368 ; 1 Haw. 243. In courts^ means either courts of record, or not of record. In the country, in three manners : 1. In disturbance of the peace. 2. In taking or kf ping possession of lands in controversy. 3. By false inventions 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 12 m i..:'-? !«■'. pit : '^1 If f ; " f act of barratry in respect of his maintaining another in a groundless action, to the commencing whereof he was in no way privy. — I Haw. 24S. Nor shall a man b'> adjudged a barrator in respect of any number of false actions brought by him in his own right ; for in such case he is liable to double costs. — 1 Haw. 243. By statute 34 E. III.,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 (Offence. As to the kind and manner of punishment it is said, that if the offender be a common person he shall be fined and imprisoned and bound to his good behaviour ; and if he be of any profession relating to the law, he ought also to be further punished by being disabled to practise for the future. —1 Haw. 244. BASTARD. By statute *2 W. IV., c. 1, after reciting that doubts had been entertained respecting the true meaning of 21 James I. 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 forra in this province. § 2. That after the passsing of this act the trial of any woman charged with the 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 presumption as in other trials for murder. See post title, " Concealing Birth." BAWDY-HOUSE. Keeping a bawdy-house is a common nuisance, and it not only endangers the public peace, by drawing together dis- solute and debauched perso-^s, but also tends to corrupt the morals of both sexes, by such an open profession of lewdness. —3 Inst. 204 ; 1 Haw. c. 74, 75, § 6. This offence is punish- able by fine and imprisonement— 1 iTaw. c. 74, and is in law ti misdemeanor. A married woman may be indicted for this offence, the same as if she was nfenime sole ; and may also be convicted of it together with her husband.— iJea; v. Williams, 1 iSalk. 883. A man may be bound to his good behaviour for haunting bawdy-houses with women of bad fame, or for keep- ing bad women in his own house.— 1 Haw. c. 74. And a constable is authorised by the common law to arrest persons that resort to bawdy-houses.— 1 Haw. c. 10, § 34. For forms "Indictable C Jndictrnent County of to wit : °j'. . in tli( V ictona, and oi and the day of arms, at the tow fuIJy did keep a disorderlv house of him the said j of evij name and on the said other «Jd cause and pr said men and w at unlawful times on the said other '"?; tippling,^ who and WlifuJJydidr and common nui iady the Queen tJ to the evil exami and against the n aignjty. ^^ By the 4 & 5 expedient that tin .^PPer Canada, inspection of beef, one uniform law s panada, and thal^ mtended for expd should be optionall the L C. act, 44 '^'^ O. Ill c §2. After the p^ Quebec, Montreal] authorities in othe[ may appoint a boa Montreal of >t J, persons, residents] scnbe the followin] "I' A. B., do si personally, or by „ receive any fee, re'J ■J . mtt untf ^ovU, 91 For forms of complaint, summons, &c., see post title ^^Indictable Offence." Indictment for keeping a Bawdy-house. [Archbold.) County of ") The jurors, &c. That I. S., late of, &c., to wit: J labourer, and A. his wife, on the day of , in the year of the reign of our sovereign lady Victoria, and on divers other days and times, between that day and thf day of the taking of this inquisition, with fcrce and arms, at the township aforesaid, in the county aforesaid, unlaw- fully 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 women, in the said house of him the said I. S., at unlawful times, as well in the night as in the day, then and on the said other days and times, there to be and remain drink- ing, tippling, whoring, and misbehaving themselves, unlawfully and wilfully did permit, and yet do permit, to the great damage and common nuisance of all the liege subjects of our said lady the Q,ueen there inhabiting, being, residing and passing, to the evil example of all others in the like case offending, and against the peace of our lady the Glueen, her crown and dignity. BEEF AND PORK. By the 4 & 5 V., c. 88, (reserved act) reciting that it was expedient that the regulations in force in Lower Canada and Upper Canada, with regard to the curing, packing, and inspection of beef and pork, should be consolidated, — that one uniform law should be enacted for the whole Province of Canada, and that the inspection of the articles aforesaid intended for exportation should cease to be compulsory, but should be optional to the parties interested : § 1, enacts that the L. C. act, 44 G. III., c. 9, ord. 2 V., c. 15 ; U. C. act *4r) G. III., c. 8, and *3 V., c. 25, shall be repealed. § 2. After the passing of this act the board of trade in Quebec, Montreal, Toronto and Kingston, and municipal authorities in other places where inspectors may be required, may appoint a board of examiners, to consist in Quebec and Montreal of five, and in other places of three fit and proper persons, residents, who, before acting shall take and sub- scribe the following oath before any justice of the district : " I, A. B., do swear that I will not, directly or indirectly, personally, or by means of any person or persons in my behalf, receive any fee, reward, or gratuity whatever, by reason of any i: '; ^Kl't:. '^ii n 'm '!i P ! ■| ;> 1 f (fi' W ■-',1 "tv ifi ''i- \ , 92 mtt mtf VovU. si;:'i;- ,!( I! ,..»•■■ i- I'M I' t li; y :i^h ■■■•I 'If KJ'.v Ml : i'- Jl.fci function in my office of examiner, and that I will therein well and truly in all' things act without partiality, favour or affection, and to the best of my knowledge and understanding. So help me God." § .3. The mayor of Quebec, Montreal, loronto, and King- ston, and the warden or chief municipal officer of other places, shall appoint by an instrument under his hand and the seal of the corporation, an inspector of beef and pork for such places, such inspector to be previously examined by the board of examiners and recommended by the majority, and before acting shall furnish two good and sufficient sureties in £500, if appointed for Quebec or Montreal, and ^£250 for other places, to bo approved by the mayor, warden, or chief municipal authority, by bond to her Majesty, and no inspec- tor shall allow any person to act for him except his sworn assistants. § 4. Bond to be kept at the office :»f the clerk of the corporation. § 5. Board of examiners before exami- nation of any such inspector shall require the attendance of two or more persons of the greatest experience and pr-actice in the packing, curing and inspection of beef and pork, who may question the party touching his knowledge of the mat- ter. § 6. Inspector to take the following oath before the mayor, warden, or chief municipal officer of the place : " I, A. B., do solemnly swear, that I will faithfully, truly and impartially, to the best of my judgment, skill and under- standing, do and perform the office of an inspector of oeef and pork, according to the true intent and meaning of an act of the legislature of this province, intituled, " An Act to regulate the inspection of Bee/ and Pork;" and that I will not, directly or indirectly, by myself or by any other person or persons whom- soever trade or deal in beef or pork of any description, other- wise than for the use and consumption of my own family, during the time I shall continue such inspector; and that I will not, directly or indirectly, brand or suffer to be branded any cask or half cask of beef or po'k, but such as shall be sound and good and of the qualify designated by such brand, and with regard to which all the other requirements of the said act .iiali have been complied with, to the best of my know- ledge. So help me God." § 7. The present inspectors to be re-appointed without examination. § 8. The inspectors for Quebec and Montreal to appoint one or more assistants when required by the board of trade, subject to the approval of the board of examiners, foi- whose acts the inspector shall be responsible ; each as- sistant to furnish two sureties in X250, and take and sub- scribe the following oath : •' I, A. B., do nsvur that I will diligently, faithfully and impartially execute the office of assistant to the inspector of beef and pork A ing of an act of act to regulate tl not directly or i son or persons ii iiy whatever, bi inspector (excep I will not, direct pork, or be \n an beef and pork, c and family. So § 9. To be pal spector. § 10. J up, salt, pack, examine througl ing up the same i or half barrel, t mitted to their in store, shop, or wi convenient situat the city, &c., for ^ of the proprietor, iron or metal bra brand on each bai bee," "Montreal,' of the place (as th( tian name and th( with the quality t shall bo branded unmerchantable w and year in which quality so packed inspection one shi i-el, one. shilling a pence for a half ti( not exceeding six half tierce, delivei allowance to be pa moval; after insp shall be furnishei charge, specifying the quantities and the charges therec untrue certificate, incur a penalty of fice: beef or pork 1 and month original A% mtt antr 9ovU. 98 beef and pork for , accordinjj to the true intent and mean- ing of an act of the legislature of this province, intituled, "An act to regulate the inspection of Beef and Pork ;" and that I will not directly or indirectly, personally or by means of any per- son or persons in my behalf, receive any fee, reward or gratu- ity whatever, by reason of my office of assistant to the said inspector (except my salary from the said inspector), and that I will not, directly or indirectly, trade in the articles of beef or pork, or be in any manner concerned in the purchase or sale of beef and pork, except so far as may be necessary for myself and family. So help me God." § 9. To be paid and hold office at the pleasure of the in- spector. § 10. Inspectors and assistants are required to cut up, salt, pack, cure, or if already packed, to unpack and examine throughout, adding salt if necessary, and cooper- ing up the same according to this act, each and every barrel or half barrel, tierce or half tierce, of beef and pork sub- mitted to their inspection, such inspection to be made at the store, shop, or warehouse of such inspector (to be kept in a convenient situation), or at some store within the limits of the city, &c., for which he may be appointed, at the option of the proprietor. § 11. Inspectors and assistants to have iron or metal brands, and immediately after inspection to brand on each barrel, tierce or half tierce the words " Que- bec," "Montreal," "Toronto," or "Kingston," or the name of the place (as the case may be), and the initial of the chris- tian name and the surname at full length of the inspector, with the quality thereof, and if found to be soft or still fed shall be branded with the word "soft," and if unsound or unmerchantable with the word "rejected," and the month and year in which it was inspected, with the net weight and quality so packed and examined, and to receive for such inspection one shilling for each barrel, 7id. for a half bar- rel, one. shilling and six pence for each tierce, and eleven pence for a half tierce, exclusive of cooperage and repairs not exceeding six pence per barrel or half barrel, tierce or half tierce, delivered in good shipping order : such fee or allowance to bo paid by the owner or consignee before re- moval : after inspection a certificate or bill of inspection shall be furnished by the inspector or assistant, without charge, specifying the quantity and the owner's marks, and the quantities and qualities ascertained by inspection, and the charges thereof: any inspector or assistant giving an untrue certificate, or without a personal examination, shall incur a penalty of £20 currency, and be dismissed from of- fice : beef or pork re-inspected, to bear the brand of the year and month originally affixed — such brand-marks to be brand- I v Mftft,', t.i3"i£ I*..,l/ ■mji 'mi: ■ ■) II H mtf antf mvft. U' i W '4 ed on one head of the barrel or tierce, &c. Where beef or pork shall be sold subject to inspection, the cost shall fall on the vendor (if not the applicant), unless agreement to the contrary at the time of sale. Provided also, that any such agreement shall imply a warranty that this act has been complied with, as well with regard to the provisions, as to the vessels containing the same, and the marks thereon. § 12. AH brands to be large and legible, within a space not exceeding fourteen inches long by eight inches broad, under a penalty of X20 currency for each barrel, &c. § 13. In- spector not to charge storeage unless left in store more than three days after notice of inspection. § 14. Any inspector suffering beef or pork left in his charge to be exposed, after inspection, to the heat of the sun, or inclemency of the wea- ther, longer than six days, shall be liable to the penalty of ifilO currency for every offence ; and for not providing a suitable store in a convenient situation, twenty shillings a day. § 15. Barrels and salt, &c., to be furnished hy the inspector, or owner, at the option of such owner or consignee. § 16. In case of dispute between the inspector and owner, with regard to the quality and condition, either party may apply to a justice, who shall summon three persons of skill and integrity, one to be named by the inspector and one by the proprietor, and the third by the justice, who shall ex- amine and report their opinion under oath (to be adminis- ters^ by such justice), and the decision of the majority shall be final, and the inspector brand accordingly, and if the opinion of the inspector be confirmed, the costs shall be paid by the proprietor, otherwise by the inspector. § 17. Any inspector or assistant neglecting or refusing, when called upon by any proprietor between sunrise and sunset (not being previously engaged), within two hours to proceed to such inspection, shall forfeit to the person applying, on con- viction before any one justice, the sum of £5 currency over and above all other damages. § 18. On the head of any barrel, &c., containing any thin, rusty, measley, tainted, sour, or unmerchantable pork, or unmerchantable or spoiled beef, branded " rejected," the true character both as to qua- lity and condition of such pork or beef shall be marked with black paint, and the inspector shall certify, when required, the quality, state and condition thereof, and the package containing the same, specifying the extent of damage and apparent cause thereof, with the brands or other marks upon the casks or packages, and the name of the owner. § 1!). Barrels, &c., to be made of good seasoned white oak staves; and heads not less than | inch thick ; each stave on the edge at the bilge no less than | for same proportion defect; each hi length with go( the centre unco in the centre of than one inch, ft not less than 27 the contents of ( gallons nor more pork barrel not : Ions wine measun more than 31 ind 44 gallons nor i perk, not less thai measure: half bai and no more. In barrel, &c., befoi §20. The 'salt to ^%, Turk's Isla quality; ,,.r.(S^ver salted with 75 poul gpoii salt as afore pickle as strong as beef and pork shal] SIX ounces of saltpd and pork shall be] saltpetre above mJ m all cases of pack] inspected and branj inspector is herebj pickle, in his discra shall find on exam] age, and to be fat a] as nearly square al than four pounds for packing and i tierces and half tier] minated respectivelf beef. f Mess beef shall c to say, briskets, the] loins of oxen, cows (^ half barrel, tierce oi scription, shall be brl Mess Beef ■ Detf unn ]9otlt. 96 at the bilge not less than J an inch thick for barrels, nor less than | for tierces, and half barrels or tierces in the same proportion to their size, and in both cases free from defect ; each bar el, &c., to be hooped and covered § of the length with good oak, ash, or hickory hoops, leaving ^ in the centre uncovered ; and each barrel, &c., shall be bored in the centre of the bilge with a bit of not less in diameter than one inch, for the reception of pickle, each barrel to be not less than 27 inches nor more than 28 J inches long ; and the contents of each beef barrel shall not be less than 28 gallons nor more than 29 gallons wine measure, and of each pork barrel not less than 30 gallons nor exceeding 31 gal- lons wine measure ; each tierce not less than 30 inches nor more than 31 inches long : contents for beef, not less than 44 gallons nor more than 45 gallons wine measure : for perk, not less than 45 gallons nor more than 46 gallons wine measure : half barrels or tierces to contain half the quantity, and no more. Inspectors to ascertain the sufficiency t>i each barrel, &c., before branding, and to brand none without. § 20. The salt to be used shall be clean St. T. oes, lisle of May, Turk's Island, or other coarse ground salt of '^qual quality ; ;.r.(l every barrel of fresh beef or pork shaM bt well salted with 75 pounds, and every tierce with 112 pounds of gooci salt as aforesaid, exclusive of a sufficient quantity of pickle as strong as salt will make it, and to each barrel of beef and pork shall be added four ounces, and to each tierce six ounces of saltpetre ; and each half barrel of fresh beef and pork shall be salted with half the quantity of salt and saltpetre above mentioned, with a sufficiency of pickle, and in all cases of packing and re-packing beef and pork to be inspected and branded under the authority of this act, the inspector is hereby authorised to use salt, saltpetre, and pickle, in his discretion. § 21. All beef which an inspector shall find on examination to have been killed at a proper age, and to be fat and merchantable, shall be cut into pieces as nearly square as may be, not more than eight nor less than four pounds weight ; and shall be sorted and divided for packing and re-packing in barrels and half barrels, tierces and half tierces, into four different so;' is, to be deno- minated respectively mess — prime mess — prime — and cargo beef. Mess beef shall consist of the choicest pieces only, that is to say, briskets, the thick of the flank, ribs, rumps, and sir- loins of oxen, cows or steers, well fatted ; and each barrel or half barrel, tierce or half tierce, containing beef of this de- scription, sh^M be branded on one of the heads with the words Mess Beef. 'm ' ^i' ii! Ill ^". 96 mtt nnti 9ovU* ' ;- :':M t i- ■ I 1 hit'-; ■ +': Prime mess beef shall consist of pieces of meat of the second class, from good fat cattle, without shanks or necks; and barrels and half barrels, tierces and half tierces, con- taining beef of this descristion, shall be branded on one of the heads thereof with the words Prime Mess Beef. Prime beef shall consist of choice pieces of fat cattle, amongst which there shall not be more than the coarse pieces of one side of a carcass, the houghs and neck being cut off above the first joint ; and barrels and half barrels, tierces and half tierces, containing beef of this description, shall be branded on ont of the heads with the words Prime Beef. Cargo beef shall consist of the meat of fat cattle, of all descriptions, of three years old and upwards, with not more than half a neck and three shanks, (with the hough cut off above the first joint), and the meat otherwise merchantable; and barrels and half barrels, and tierces and half tierces, containing such beef, shall be branded on one of the heads Cargo Beef. And each barrel, in which beef of either of the foregoing descriptions shall be packed or repacked, shall contain two hundred pounds of beef, and each half barrel, one hundred pounds; each tierce, three hundred pounds, and each half tierce, one hundred and fifty pounds. § 22. All pork which an inspector shall find to be fat and merchantable, shall be cut in pieces as nearly square as may be, and not exceeding six, nor less than four pounds weight, and shall be sorted and divided into four sorts, to be denomin- ated respectively mess — prime mess— prime— and cargo pork. Mess pork shall consist of the rib pieces only, of good hogs, not weighing less than two hundred pounds (a) each ; and barrels and half barrels, tierces and half tierces, containing such pork, shall be branded on one of the heads Mess Pork. Prime mess ^lork shall consist of the pieces of good fat hogs, not weighing less than one hundred and ninety pounds each, the barrel to contain the coarse pieces of one hog only — that is to say, two half heads (not exceeding together six- teen pounds in weight) with two shoulders and two hams, and the remaining pieces of a hog; the tierce to contain the re- lative proportion of heads, shoulders and hams, and tlie remnimng pieces of one hog and a half hog; and barrels and half barrels, tierces and h :lf tierces, containing pork, of this description, shall be branded on one of the heads Prime Mess Pork. Prime pork shall consist of the pieces of good fat hogs, not (a) Amended by 20 V., c. 13, kcluding hogs ■ iceediog 200 lbs. weight. weighing less barrel to contj that is to sa\ twenty.fourpo and the remaii to contain the hams, and the *hog; and ea containing pori of the heads P Cargo pork s not less than on the coarse piece tour half headi pounds), four si pieces of two hoi the tierce to cont and hams, and t\ barrels and half pork of this desc: GargoPork; bu offanduotpacke above the tusks, t cutoff; and the bi and each barrel, i scriptions may b^ hundred pounds: each half barrel spectively, of the sliali bo branded aif inspector of beef l ordeal in beef or pi by buying, barteril o»' hogs, with a viel bybuying,barterii/ nor shall he purch wise tJiun for the J penalty of ^50 A being removed froij person shall, with \ ot the inspector's t marks or brund tliei 0'- half tierce, or si 01- ha f barrel, tiercl m order to put intc ^ov the purpose of 13 iSeef uM ^ovU. 97 weighing less than one hundred and fifty p<^nds each, the barrel to contain the coarse pieces of one hog and a half only, that is to say, three half heads, (not exceeding together twenty-four pounds in weight,) three hams and three shoulders, and the remaining pieces of a hog and a half hog; the tierce to contain the relative proportions ox' heads, shoulders and hams, and the remaining pieces of two hogs and a quarter of a hog ; and each barrel or half barrel, tierce or half tierce, containing pork of this description, shall be biiinded on one of the heads Prime Pork. Oargo pork shall consist of the pieces of fat hogs, weighing not less than one hundreds pounds each, the barrel to contain the coarse pieces of not more than two hogs, that is to say, four half heads, (not exceeding together in weight thirty pounds), four shoulders and four hams, and the remaining pieces of two hogs, and shall be otherwise merchantable pork ; the tierce to contain the relative proportion of heads, shoulders and hams, and the remaining pieces of three hogs ; and the barrels and half barrels, tierces and half tierces, containing pork of this description, shall be branded on one of the heads Car(io Pork ; but in all cases the following parts shall be cut off and not packed, viz., the ears close to the head, the snout above the tusks, the legs above the knee joint, the tail shall be cut oft", and the brains, tongue and bloody grizzle taken out; and each barrel, in which pork of any of the foregoing de- scriptions may be packed or repacked, shall contain two hundred pounds ; and each tierce three hundred pounds ; and each half barrel, or half tierce, one-half those qualities re- spectively, of the several qualities of pork as aforesaid, and siuili be branded accordingly. § 23. No inspector or assistant inspector of beef and pork shall directly or indirectly trade or deal in beef or pork, or be concerned in such trade, whether by buying, bartering, or exchanging any live or dead cattle or hogs, with a view to pack the same or get them packed, or by buying, bartering or exchanging beef or pork when packed ; nor shall he purchase beef or pork of any description, other- wise tlian for the use and consumption of his family, under a penalty of X50 currency for each effence, and on pain of being removed from office. § 24. If any packer or any other person shall, with a fraudulent intent, efface or obliterate any of the inspector's brand marks, or shall counterfeit any such marks or brand the same on any barrel or half barrel, tierce or half tierce, or shall empty or partially empty any barrel or half barrel, tierce or half tierce, branded after inspection, in Older to put into the same other beef or pork, or shall use, for the purpose of packing any beef or pork, old barrels^or 13 ■\ ■' ■••I .n ■ ll,i 98 i^eef atOf ^ovu. !.::<)-■ 1:1 1, . !'■■ ; If. half barrels, tierces or half tierces, without destroying the old brand marks, before offering the same for sale or exportation, or not being an inspector or assistant inspector, shall brand any pork or beef with the inspector's brand-marks, such per- son so offending shall for every such offence incur a penalty of ^50 currency, and every inspector or assistant inspector, who shall inspect or brand any beef or pork out of the limits for which he shall be appointed, or shall hire out his brands to any person whomsoever, or shall connive at or be privy to any fraudulent evasion of inspection of beef and pork by others, shall for every such offence incur a penalty of £50 currency. § 25. Nothing herein contained shall be con- strued to prevent any person from packing for exportation, or from exporting any beef or pork, without inspection, provided such beef or pork be packed in tierces or half tier- ces, barrels or half barrels, of the dimensions hereinbefore prescribed for such vessels respectively, and be marked with black paint, or branded on one end thereof, with the name and address of the packer, the date and place of packing, the weight, and the quality of the provisions contained in each package ; nor shall anything herein contained prevent any person from packing for exportation, or from exporting without inspection, any rounds of beef, rounds and briskets of beef, the meat of young pigs, called pig pork, the tongues of neat cattle, the tongues of pigs, hams of pigs, or pigs' cheeks, or any smoked or dried meat of any description, contained in tubs, casks or barrels, or other packages of any kind, provided each package be marked in the manner above mentioned ; but every person who shall export any meat of the kind last men- tioned, not so marked as aforesaid, or beef or pork of any other kind, not so marked, and not packed in barrels or half barrels, tierces or half tierces, of the dimensions hereinbefore pre- scribed, shall thereby incur a penalty of ttvcntt/ shillinf/s currency for every barrel or half barrel, tierce or half tierco. tub, cask or other package, with regard to which the pro- visions of this section shall be contravened, and such pcnahy shall be recovered and applied in the manner provided in regard to the other penalties imposed by this act. § 2'!. All fines, penalties and forfeitures, imposed by this act. not exceeding £10 sterling^ shall be recoverable with costs in a summary way, before any two justices of tlio peace of the district, and may, in default of payment. be levied by warrant of distress, to be issued by such justices, against the goods and chattels of the offender; and when the same shall exceed the sum of £10 sterling, they shall be sued for and recovered by civil action, before any court of comp the case of de (except such a shall be imrae( the city of Tor ^rought, and s for the public ^ong to the pro officer of such oeiong to the c. tions to be core Act to be in for to continue in f of the next sessi % 13 & 14 \/ tors or their as snail inspect any or half barrel, tie kind containino- recovered and "a and i( any owner ;jg to it hh nan the date when bra Jie shall incur tl ^ng § 11 of said vessel containino the date thereofH of inspection— but every re-inspectior penalty aforesaid | act, inspector not tl DJ iiim, unless lefl notice by him of if § 4. The act 4 & * *% 55 G. III. 1 ment to bring tli? ■ V m If' ■ S I :•: «ua. n i« ■ .m ■Mi 100 iSencj^ Wiuvvunu m Is: , !': ■■ i: i:' i '. 1 . ■ : •i-h •ij-..i: i':!i II' ■I' 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 to 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 time, or on the last day of the preceding term, if in vacation, returnable before the said Court of King's Bench on the first day of the term next ensuing. § 4. And if to the said writ of alias capids the sheriff shall return non est inventus, then upon motion in court, or before a judge in vacation, a writ of exigent shall issue. For further proceedings see post title ^^Outlawry." The above act was allowed to expire, but was revived and continued by the *3 W. IV., c. 5, ^passed in February, 1833,) for six years, and to the end of the next session. And by *2 v., c. 7, was made perpetual. After an indictment found, any private person, without a warrant, may arrest the offender. — Dalt. c. 170, § 5. Upon the party being taken, (if the charge be misde- meanor only,) he may give recognizance to appear to any magistrate, who thereupon will grant a suj)ersedeas 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 per- haps 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. ^°""t7wft.^°'^' \ TotheSheriffoftheCountyof York.Greeting: These are to will and require, and in her Majesty's name to command you, upon sight hereof, to bring before us, J. C. and S. P., Esquires, two of her Majesty's justices of the peace for the county of York, at the general quarter sessions of the peace now being holden at the city of Toronto, in and for the said coutity of York, or such other two or more of her Majesty's justices of the peace for the said county as shall be then and there sitting, the body of A. B., who stands indicted before us at this same sessions for an assault, (or for larceny,) if the court shall be then and there sitting; and if he cannot be taken during the present sessions, that then so soon after as he shall be taken you bring or cause him to be brought before some jus- tice of the peace of the said county, to be dealt with according to law ; and what you shall have done herein make appear to her Majesty' ronto, on tht have you the city of Toror Lord 18 Benefit of < clerks in ordei could read, by victed, was dis king's courts a with according P^ing to the a; jected all perso the penalty of ( been a remedy i to rescue offend( consequent there guish such crime death, usually e should be deeme. thus leaving the , g^tive for a mitiij tion therefore, in felonies at the co of clergy, serene w'thm this privilq Jaw, and were d] Benefit of clergy j criminal code suba m -England by 7 1 statute *3 W. IV.| Andby4&5\ throughout the uJ St .B'gamy signified ^'ves or two husbo % 4 & 5 y CI shall marry any o't husband or wife, isentfft of €Ut0i?. 101 her Majesty's justices of the Court of Q-ueen's Bench at To- ronto, on the first day of term now next ensuing, and have you there this warrant. Dated in open sessions, at the city of Toronto, this day of , in the year of our Lord 18 . J. C. S. P. BENEFIT OF CLERGY. Benefit of clergy was a privilege allowed by the law to clerks in orders, and afterwards to those among the laity who could read, by virtue of which a criminal, though duly con- victed, was discharged 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 sub- jected 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 distin- guish 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 prero- gative for a mitigation of his punishment. The real distinc- tion 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 punishable with death. Benefit of clergy is now very properly abolished and a milder criminal code substituted : this important change was effected in England by 7 & 8 G. IV., c. 27, and in Upper Canada by statute *3 W. IV., c. 5. And by 4 & 5 V., c. 24, § 19, benefit of clergy is abolished throughout the United Provinces. BENEFIT SOCIETIES. See *•*• Provident Societies." BIGAMY. Bigamy signifies, in criminal law, the offence of having two wives or two husbands, at the same time. — 4 Bl. Com, 163. By 4 & 5 v., c. 27, § 22, if any person, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have ,. V ,!;;. m ^'k m ^1 Pt] P -ill "if ^1^ 102 muiuvtf EaWtn. r :i I' • |4' V jr I j ■' ' ' I ■ .(N taken place in this province or elsewhere, every such offen- der, and every person counselling, aiding or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be imprisoned at hard labour in the provincial penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any terra not exceeding two years, and any such offence may be dealt with, enquired of, tried, determined and punished in the district or county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that district or county : provided always, that nothing herein contained shall extend to any second marriage contracted out of this province, by any other than a subject of her Majesty resident in this province, and leaving the same with intent to commit the offence, or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time ; or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage or to any person whose former marriage shall have been declared void by the sentence of any court o' competent jurisdiction. — For forms see ^^ Indictable Offen js." BILLIARD TABLES. By 12 v., 81, § 60, municipalities are authorised to make by-laws for the regulation of such. By 16 v., c. 184, § 3, they are also authorised to make by-laws for regulating and governing the keepers of, and for licensing the same, and fixing the amount of duty, and for imposing penalties for the infraction of such by-laws. " BLASPHEMY AND PROFANENESS. All blasphemies against God, as denying His being or providence, and all contumelious reproaches of Jesus Christ : all profane scoffing at the holy scriptures, or exposing any part of them to contempt or ridicule; impostors h 'r!U-ion, as falsely pretending to extraordinary comini, ; ■ Troiii God, and terrifying or abusing the people with 7'.t.<: donun ciations of judgment, and all open lewdness gross^ .canda- lous are punishable by fine and imprisonment, and also such corporal punishment as to the court shall seem meet, accord- ing to the heinousness of the crime. — 1 ffaw. 6, 7. u ^^\}^ ^^^ P^^^°" ^^*^'' ^" ^^y Btage-play, interlude, show, May-game or pageant, jestingly or profanely speak or use the h( Jioly Ghost, the king and (< hi .1 /. fy 12 v., c and consolidat( survey and adr are repealed. . § 2Q- Stone iials, to be plac offsets of every «1; and also at such townships • therefrom shall' townships and c placed under the Crown lands. § boundary Jines s true courses and ships and concess survey, coincide ^ patent or other in ingly and wilfulh such monument s( telony; and if . «eface, alter or re mcnt, placed by boundary or ansU parcel of land, m and being convict pun;shed by fine exceed £25, nor i not to prevent h taking up posts o after which they § 30. Monuments application of the — . ^ ^ («) 38 O. III., c. J iSounliati? lELtntn. 103 or use the holy name of God, or of Christ Jesus, or of the Holy Ghost, or of the Trinity, he shall forfeit .£10— half to the king and half to him that shall sue. — 3 J. 0. 21. BOARD OF HEALTH. See ''Fublic Health:' BOARD OF WORKS. "See post title ''Public Works." BOUNDARY LINES. By 12 v., c. 35, reciting that it was expedient to amend and consolidate the laws respecting land surveyors, and the survey and admeasurement of lands, by § 1, former acts (a) are repealed. § 26. Stone monuments, or monuments of durable mate- rials, to be placed at the several corners, governing points or offsets of every township surveyed or hereafter to be survey- ed ; and also at each end of the several concession lines of such townships ; and lines drawn as hereinafter prescribed therefrom shall be the permanent boundary lines of such townships and concessions. § 27. Such monuments to be placed under the direction and order of the Commissioner of Crown lands. § 28. That the courses and lengths of said boundary lines so ascertained and established, shall be the true courses and lengths of the boundary lines of said town- ships and concessions, whether the same do or not, on actual survey, coincide with the courses and lengths in any letters patent or other instrument. § 29. If any person shall know- ingly and wilfully pull down, deface, alter or remove, any such monument so erected as aforesaid, he shall be guilty of felony ; and if any person shall knowingly and wilfully deface, alter or remove any other land-mark, post or monu- ment, placed by any land surveyor to mark any limit, boundary or angle of any township, concession, range, lot or parcel of land, such person shall be guilty of misdemeanor, and being convicted before any competent court, shall be punished by fine or imprisonment, or both ; fine not to exceed £25, nor imprisonment three months : but this clause not to prevent land surveyors, in their operations, from taking up posts or other boundary marks when necessary ; after Avhich they shall carefully replace them as before. § 80. Monuments not to be placed under § 26, 27, except on application of the municipal council of the district. § 31. It (a) 38 G. III., c. 1 ; 59 G III., o. 14 ; 2 V., c. 17 ; 4 & 6 V., o. 9. 104 l^onMHVs iLfne0« •III- li: Iff ■■ |;'i IMI shall be lawful for the district council, on application of one- half of the resident landowners in any concession (or without such application if the council shall deem necessary), to make application to the governor to cause any such line to be sur- veyed and marked by permanent stone boundaries under the direction and order of the Commissioner of Crown Lands, at the cost of the proprietors of the lands in such concession or part of a concession interested ; and it shall be lawful for such district council to cause an estimate of the sum requi- site to defray the expenses to be incurred to be laid before them, in order that the same may be levied on the said pro- prietors in proportion to the quantity of land held by them respectively in such concession or part of a concession, in the same manner as any sum required for any other purpose authorised by law may be levied ; and the lines or parts of lines so surveyed and marked as aforesaid, shall thereafter be taken to be the permanent boundary lines of such con- cessions or parts of concessions to all intents and purposes ; and all expenses incurred in performing any surve}' or placing any monument or boundary under this section, shall be paid by the district treasurer to the person employed, on certificate of the Commissioner of Crown Lands : provided that the lines shall be drawn so as to leave each of the adjacent concessions of a depth proportionate to that intend- ed in the original survey. § 32. All boundary lines of townships, cities, towns, villages, concession lines, govern- ing points, and all boundary lines, of concessions, sections, blocks, gores, commons, and all side lines and limits of lots surveyed ; and all posts or monuments which have been placed or planted at the front angles of any lots or parcels (provided the same have been or shall be marked, placed or planted, under the authority of the executive government of the late province of Upper Canada, or under the authority of the executive government of this province), shall be, and the same are hereby declared to be, the true and unalter- able boundaries of the same, whether the same shall upon admeasurement be found to contain the exact width, or more or less, expressed in any letters patent, grant or other instru- ment in respect thereof ; and such township, city, town, &e., shall embrace the whole width contained between the first posts, monuments or boundaries, planted or placed at the front angle of any such township, city, town, kc, so marked. placed or planted as aforesaid, and no more nor less. § 8.'l All allowances for roads or streets in any city, town or village, to be public highways. § 34. As to Ij^nds granted in blocks and subsequently surveyed by the grantees — such ^surveys to 'of the boun side from w same is here side lines thj such divisioi survey to rt veyors are ] which theyr pond with a concession in ^ots are numb division or sid run parallel tc the end of a c( bounded by a J wJiere it has n( under such co course of the di not intended i boundary, the s tne boundary lij provided their ( be parallel ther the original sm original survey t concession was i J'ne at either en such angle with oi the said conce JS stated in the pi provided such M said, or with the extremity of the J ot tho concession run in the origiij boundaries of the orifitbeboundo natural boundary] 'inoiu front of til f d field notes afcf division or side hJ be parallel to the 1 We been drawn il ^ey thereof, the d{ sliall be drawn pJ U Hottti^Atri^ %int». 106 surveys to be deemed original surveys. § 35. The course • of the boundary line of each and every concession, on that side from which the lots are numbered, shall be, and the same is hereby declared to be, the course of the division or side lines throughout the several townships ; provided that such division or side lines were intended in the original survey to run parallel to the said boundary ; and all sur- veyors are hereby required to run division or side lines, which they may be called upon to survey, so as to corres- pond with and be parallel to that boundary line of the concession in which such lands are situate, from whence the lots are numbered as aforesaid : provided always, that such division or side lines were intended in the original survey to run parallel to the said boundary : provided also, that when the end of a concession from which the lots are numbered is bounded by a lake or river, or other natural boundary, or where it has not been run in the original survey, performed imder such competent authority as aforesaid, or when the course of the division or side lines of the lots therein was not intended in the original survey to run parallel to such boundary, the said division or side line shall run parallel to the boundary line at the other extremity of such concession, provided their course was intended in the original survey to be parallel thereto, and that such boundary line was run in the original survey : provided further, that when in the original survey the course of the division or side lines in any concession was not intended to bo parallel to the boundary line at either end of such concession, they shall be run at such angle with the course of the boundary line at that end of the said concession from which the lots are numbered, as is stated in the plan and field notes of the original survey ; provided such line was run in the original survey as afore- said, or with the course of the boundary line at the other extremity of the said concession, if the boundary at that end of the concession from which the lots arc numbered was not run in the original survey ; or if neither of the aforesaid boundaries of the concession were run in the original survey, or if it be bounded at each end by a lake or river or other natural boundary, then at such angle, with the course of the lino in front of the said concession, as is stated in the plan and field notes aforesaid : provided, nevertheless, that if any diviaion or side line between lots, or proof line intended to be parallel to the division or side lines between lots, shall have been drawn in any such concession in the original sur- vey thereof, the division or side lines between the lots therein shall be drawn parallel to such division or side line, or proof 14 I. 106 f^mnwvs ]Lfnt0* line ; and when two or more such division or side lines, or ^ proof lines, have been drawn in the original survey, that * division or side line, or proof line nearest to the boundary of the concession from which the lots are numbered, shall go- vern the course of the division or side lines of all the lots in such concession, between the boundary of the concession from which the lots are numbered and the next division or side line, or proof line drawn in the original survey, which shall govern the course of the division or side lines of all the lots up to the next division or side line, or proof line, drawn in the original survey, or to the boundary of the concession towards which the lots are numbered (as the case may be) : provided further, that in all those townships which in the original survey have been divided into sections, pursuant to r»n order in council, dated 27th March, 1829, the division or sidelines in all concessions, in any section, shall be governed by the boundary line of such section, in like manner as the division or side lines in townships originally surveyed before that day are governed by the boundary lines of the conces- sion in which such lots are situate. § 36. The front of each concession where only a single row of posts has been planted, and the lands have been described in whole lots, shall be that end or boundary of such concession which is nearest to the boundary of the township from which the concessions are numbered; provided, that in those townships bounded in front by a river or lake, where no posts were planted in the original survey to regulate the width in front of the lots in the broken front, the division or side lines of such lots shall be drawn from the posts or boundaries on the concession line in the rear, parallel to the governing line determined as aforesaid, to the river or lake in front ; provided also, that when the line in front of any such concession has not been run in the original survey, the division or side lines of the lots in such concession shall be run from the original posts or monuments planted on the rear thereof, parallel to the governing line determined as aforesaid, to the depth of the concession, viz. : to the centre of the space contained between the lines in front of the adjacent concessions, if the conces- sions were intended in the original survey to be of an equal depth ; or if they were not so intended, then to the propor- tionate depth intended in the original survey, having due respect to any allowance for road made in the original sur- vey; and that a straight line joining the extremities of the division or side lines of any lot in such concession drawn as aforesaid, shall be the true boundary line of that end of the lot which has not been run in the origioal survey. § sions have posts or mc ance for r( have been lines shall I centre of th( shall be the and a straigh or side lines as aforesaid, i half Jot whicl § 38. That in hne only has h fronts, the divi or monuments to the depth of contained bctw^ cessions were i equal depth, ot] and each altern front of each § 39 Every Ian, shall, if not doni ascertained, dct course of a stra the governing be shall run such si original survey, , plan and field n, original post or n S 44. In cases w Jots, in concessioi commence at the fis hereinbefore straight line throu when run as afore or monument in th ot being surveyed 'ots mentioned in this act to be doe ment shall be broii- or limit shall hav shall be found, in improved on landi •u DotttfTrats ]Lfne»« 107 survey. § 37. That in townships in which the conces- sions have heen surveyed with double fronts, that is with posts or monuments planted on both sides of the allow- ance for roads between the concessions, and the lands have been described in half lots, the division or side lines shall be drawn from the posts at both ends to the centre of the concession, and each end of such concession shall be the front of its respective half of such concession, and a straight line joining the extremities of the division or side lines of any half lot, in such concession drawn as aforesaid, shall be the true boundary of that end of the half lot which has not been bounded in the original survey. § 38. That in those townships where p.^ch alternate concession line only has been run in the original iurvey, but with double fronts, the division or side lines shaJl be drawn from the posts or monuments on each side of such alternate concession lines, to the depth of a concession, viz., to the centre of the space contained between such alternate concession lines, if the con- cessions were intended in the original survey to be of an equal depth, otherwise to the proportionate depth intended ; and each alternate concession line as aforesaid, shall be the front of each of the two concessions abutting thereon. § 39. Every land surveyor running any side line beteen lots shall, if not done before, or if done, and the course cannot be ascertained, determine by astronomical observation, the true course of a straight line between the front and rear ends of the governing boundary line of the concession or section, and shall run such side line parallel thereto, if so intended in the original survey, or at such angle therewith as stated in the plan and field notes. § 40. Relallng to surveys when the original post or monument cannot be found is repealed by 18 v., c. 83, and other provisions made by § 10 of that statute. § 44. In cases where letters patent have issued for several lots, in concessions adjoining each other, the side lines shall commence at the front angles of such lots, and shall be run as hereinbefore provided, and shall not continue on in a straight lino through several concessions, unless the side lines, when run as aforesaid, shall intersect the corresponding post or monument in the front of the concession next in rear ; each lot being surveyed and bounded independently of all other lots mentioned in the grant. § 48. False swearing under this act to be deemed perjury. § 49. If any action of eject- ment shall be brought against any person who, after any line or limit shall have been established according to this act, shall be found, in consequence of unskilful survey, to have improved on lands not his own, the judge of assize shall Mil 108 ^OUtOfUVP ]L(tff0« ; : fi ' k h: lif: : ■ , }. direct the jury to assess such damages for the defendant for any loss he may sustain thereby, and to assess the value of the land ; and if verdict be found for the plaintiff, no writ of possession shall issue, until such plaintiff shall have tendered or paid such damages, or shall have offered to release the land to the defendant, provided the defendant should pay or tender to the plaintiff the value of the land so assessed, before the fourth day of the ensuing terni. § 50. If upon the trial it should appear, that defence made was only for the purpose of obtaining the value of improvements in consequence of un- skilful survey, and the judge shall so certify, the defendant shall be entitled to his costs, provided that at the time of entering into the consent rule the defendant shall have given notice to the plaintiff that he only claimed the amount of his improvements, and did not intend to contest plaintiff's title ; and in case such notice shall not be given, or the jury shall assess less than the amount claimed, the defendant shall pay costs to the plaintiff. §51. Interpretation clause. §52. A copy of this act to be sent to every land surveyor. By 18 v., c. 83, § 7, when any surveyor shall be in doubt as to the true boundary or limit of any township, concession, range, lot or town, which he may be employed to survey, and shall have reason to believe that any person is in possession of important information, touching such boundary or limit, or of any writing, plan, or document, and the party is not willing to attend or produce the same, such surveyor, or his employee, upon making an affidavit of the facts before a justice of the peace, and filing the same in the office of the county court, may obtain a subpoena diices tectim, and servo a copy on the party personally, or leave it at his usual place of abode, at the same time exhibiting the original, and if the party named therein, upon being tendered his reasonable expenses, shall neglect or refuse to appear before such sur- veyor, or produce such documents, or give such evidence, he shall be guilty of a contempt, and punished by fine or imprison- ment in the discretion of the judge. § 8. Whenever the municipal corporation of any township, city, town, or incor- porated village shall adopt a resolution on applicatien of one- half the resident land holders to be affected therebyj that it is desirable to place stone or other durable monuments at the front or at the rear, or at the front and rear angles of tlie lots in any concession or range, or part of a concession or range in their township, city, town, or incorporated village, it shall be lawful for such municipal corporation to make application to the Governor in the same manner provided in the 3l8t § of the 12 V., c. 35, praying him to cause a survey of such con boundaries t missioner of such survey s monuments a rear angles o; range, or pa ascertained bI be, the true li shall be defr ^Ist §, 12 v., fronted conce; ends thereof tc the 37th § of tl the manner i have been des( nal post or m between lots 8h( shall obtain the ing the same; ascertained, he i nearest undispm such distance inl m the original i tionate to that in the plan and fiel hue in front of t\ or boundary of tt he shall run a Jir where such line q and shall plant al ''« niay be requl allowance for rol survey, and the thereof. ,.^7 20 v., c. d •H (or any other they are hereby r PUted boundaries establish thediviJ such side lines a] whether the same f to the rear, or the and to adhere to a fhe division Qj. g. J flesignating cornerl nonnWtQ MAntu. 109 of such concession or range, &o., to bo mado, and such boundaries to be planted under the authority of the Com- missioner of Grown Lands ; and the person or persons making such survey shall, accordingly, plant stone or other du ble monuments at the front or at the rear, or at the front and rear angles of each and every lot in the said concession or range, or part of the same, and the limits of each lot so ascertained shall be taken to be, and are hereby declared to be, the true limits thereof: and the costs of the said survey shall be defrayed in the manner prescribed by the said 81st §, 12 v., c. 35. § 9. The limits or side lines of double fronted concessions to be drawn from the posts at both ends thereof to the centre of the concession, as provided in the 37th § of the said act, 12 V., c. 35, without reference to the manner in which the lots in such concession shall have been described for patent. 5 10. In case the origi- nal post or monument from which any side line or limit between lots should commence, cannot be found, the surveyor shall obtain the best evidence the case will admit of respect- ing the same ; but if the same cannot bo satisfactorily ascertained, he shall measure the true distance between the nearest undisputed posts, limits or monuments, and divide such distance into such number of lots as the same contained in the original survey, assigning to each a breadth propor- tionate to that intended in such original survey, as shewn on the plan and field notes thereof ; and if any portion of the line in front of the concession in which such lots are situate, or boundary of the township shall be obliterated or lost, then he shall run a line between the two nearest points or places where such line can be clearly and satisfactorily ascertained, and shall plant all such intermediate posts or monuments as ho may be required to plant, having due respect to any allowance for roads, or commons set out in such original survey, and the limits so found shall bo the true limits thereof. By 20 v., c. 73, § 1, notwithstanding said act 12 V., c. ;55, (or any other act,) it shall be lawful for surveyors, and they are hereby required, when called on to determine dis- puted boundaries in the said townships, to ascertain and establish the division or side lines of the lots by running such side lines as they were run in the original survey, whether the same were run from the front of the concession to the rear, or the rear to the front, in the original survey, and to adhere to all posts, limits or monuments, planted on the division or side lines in the original survey, as being or designating corners of lots under such original survey. W''t '• ' « I 't.i '\^ im- 'Wh' a -c t ;',i ^ ■! Ml ' 11 ! J-' ;i ■ ii i ; ;;|ii'' iJK 1,1 -1 t-iiii no ^'^^■- BREAD. ; 1 V i*i; *By 6 G. IV., c. 6, entitled, "An Act for the better regu- lating the assize and fixing the Price of Bread in the several police towns throughout the province," certain provisions were made on the subject. But this act, although not ex- pressly repealed, is now superseded by the municipal act 12 v., c.'Sl, § 80, which amongst other things authorises the municipalities of incorporated villages, &c. to make by-laws for regulating the assize of bread. BRIBERY. Bribery is the receiving of any undue reward by any per- son 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 to act contrary to the known rules of honesty and integrity, and the person who ffivea the bribe is as much guilty of the offence as he who takes it. — 3 Inst.- 149 ; 1 Hmo. c. 67, § 2 ; 4 Bl Com. 139. The offence of bribery is punishable with fine and impri- sonment. — 1 Haiv. c. 67, § 3. In judges, especially the superior ones, says Blackstone, bribery hath always been looked upon as so heinous an offence, that the Chief Justice Thorp was hanged for it in the reign of Edward III.— 4 Bl. Com 140. By a statute of 2 Hen. IV. 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 punish- able by law in the party that offers it. — 3 Inst. 147 ; E. v. Young, cit. 2 Uast. Rep. 14, 16. Bribery at elections for members of parliament was always an offence at common law, and punishable by indict- meut or information. — R. v. Pitt, 3 Burr, 1335. BRIDGES. By 4 & 5 v., c. 26, § 13, if any person shall unlawfully and maliciously pull down or in anywise destroy any public bridge, or do any injury with intent to and so as thereby to render such bridge or any part thereof dangerous or impa.ss- able, every such offender shall be guilty of felony, and, being convicted thereof, shall be imprisoned for any term not exceeding four years. By statute 8 v., c. 44, if any person shall drive or ride at a faster rate I thirty feet in so offending, i the peace for : or by the oath and on convict than 5s. nor m default thereoi offender's gooc and ocal of sue] tress, or the ofl shall be lawful and seal, to con district for a p and costs sooner for the use of tl printed and put 1 scribed. § 4^ liable to a fine'of ceivable as other ,?J 9 v., c. 37 which provincial i the comuissionerj her Majesty. Bridges in Uppe The Union Susi river between Byt The Trent brid| The bridge at i\ ihe Dunnville b I he Brantford b The l^T ^''^^' ine Delaware bi J^^ic Ohatham bri The Municipal A raunicipalitie.^ to mi 'laing over any br township. See also '' Uighiu . ^"^gery is a det named, committed b of the Creator and l^UM^VP* 111 a faster rate than a walk over any public bridge exceeding thirty feet in length in Upper Canada, each and every person so offending, upon proof of such offence before any justice of the peace for the district, either by confession of the party, or by the oath of one or more credible witness or witnesses, and on conviction thereof shall be liable to a fine of not less than 5s. nor more than 203., to be paid forthwith, and in default thereof to be levied by distress and sale of the offender's goods and chattels, by warrant under the hand and ocal of such justice ; and in case of insuflSciency of dis- tress, or the offender not being resident in the district, it shall be lawful for such justice, by warrant under his hand and seal, to commit such offender to the common gaol of the district for a period not exceeding two days, unless penalty and costs sooner paid. § 2. Penalties to be paid to the treasurer for the use of the district. § 3. Notice of this act to be printed and put up at each end of the bridge in the form pre- scribed. § 4. Any person defacing such notice shall be liable to a fine of not less than 5s. nor more than 403., re- ceivable as other fines imposed by this act. By 9 v., c. 37, § 7. The management of all bridges on which provincial funds have been expended is transferred to the commissioners of public works. § 28. And vested in her Majesty. Bridges in Upper Canada mentioned in the Schedule to this act. The Union Suspension, and other bridges over the Ottawa river between By town and Hull. The Trent bridge at the mouth of the Trent. The bridge at the mouth of Lake Simcoe. The Dunnville bridge. The Brantford bridge. The Paris bridge. The Delaware br'dge. The Chatham bridge. The Municipal Act 12 V., c. 81, § 31, authorises township municipalities to make by-laws for regulating the driving and riding over any bridge erected or to be erected in such township. See also ^^ HightvaySy'" " Travellers." BUGGERY. Buggery is a detestable and abominable sin, not to be I named, committed by carnal knowlege against the ordinance of the Creator and order of nature by mankind, or with iilr hi- '■ 112 j^ummsu. I I ■i ; ■ Si r fi: f; \:!1 brute breast, or by womankind with brute beast. — 3 Inat. 58. And by stat. 25 H. "V IIL, c. 6, buggery committed with mankind or beast, is made felony ; which said statute making it felony generally, there may be accessories before and after, but those that are present, aiding and abetting, are all principals ; and although none of the principals are admitted to their clergy, yet accessories before and after are not excluded from clergy. — 1 If. H. 670. If the party buggered be within the age of discretion, (fourteen years) it is no felony to him, but in the agent only ; but if buggery be committed on a man of the age of discre- tion, it is felony in both of them.— 3 Inst. 59 ; 1 iT. H. 67. By 4 & 5 v., c. 27, § 15, every person convicted of the abominable crime of buggery, either with mankind or with any animal, shall suffer death. § 18. The offence deemed completed by proof of penetration only. By 6 v., c. 5, § 5, where any person shall be convicted of any assault with intent to commit the above offence, the court may sentence the offender to be imprisoned- at hard labor in the penitentiary for any term not exceeding three years, or to be imprisoned in any other prison or place not exceeding two years. BUILDINGS. By statute 4 & 5 V., c. 25, § 36, if any person shall steal or rip, cut or break, with intent to steal, any glass or woodwork belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, respec- tively fixed in or to any building whatsoever, or any i\mvr made of metal fixed in any land being private property, or for a fence to any dwelling-house, garden or area, or in any square, street or other place dedicated to public use or oriiii ment, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ; and if fixed in any square, street or other like place, it shall not be necessary to allege the same to be the property of any per- son. See also titles '•^ Arson,'' " Burglary.'' BUREAU OF AGRICULTURE. Sec " Agricultural Societies." BURGLARY. Burglary is a felony at common law, in breaking and en- tering the ] to commit g intent be e; ■By statu the mansion log the sam such house i time break t burglary. And by 4 ously break assault with shall stab, cut fgnihy off( death. § ig house of anoth such dwelling-] either case bres time, he shall b ^"^^ry entrai open, and the ;\«dow be open this IS not burirh Y ^T *^« thief oht the goods, ^a/e says these J the casement, on the lock of the dJ V^t^^ or unl] f- ^^^; and sol ^ex V. Brown, 2I down the upper , %. 451 ; S. O. f 7: creeping dc -I he breaking k parte of a house, S '^r ^^'"g I y'thm the house t 't with intent to St ^East.P, 0.^%^ pest m a public iif ]«r door, with inte }J^t' Com. 227- 1 V" inn-keeper brl "'ght to rob,^hi8 ■ 15 \'\ I iStttglatj^* ]J3 tering the mansion-house of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not. — Hales PI. 79. By statute 12 Anne, c. 7, if any person shall enter into the mansion-house of another by day or night, without break- ing 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. And by 4 & 5 v., c. 25, § 14, whosoever shall burglari- ously break and enter into any dwelling-house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat or strike any such person, shall be guilty of felony, and being convicted thereof shall suffer death. % 16. And if any person shall enter the dwelling- house of another with intent to commit felony, or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night time, he shall be deemed guilty of burglary. Every entrance is not a breaking — as, if the door stand open, and the thief enter, this is no breaking ; so, if the window be open, and the thief draw out some of the goods, this is not burglary, because there is no actual breaking ; but if the thief break the glass of the window, and draw otit the goods, this is burglary. — 3 Inat. 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 H. H. 552 ; and so does the pushing open of folded doors — Bex V. Brown, 2 Hast. P. 0. 487 ; 2 Russ. 902 : pulling down the upper sash of a window — Rex v. Haines, Russ. ^ Ry. 451 : S. C. nom, Rex v. Harrison, 1 Ohetw. Brom. 497 : creeping down a chimney. — Cromp. 32 ; Bait. 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 out- ward door being open, or by an open window, and when within the house turn the key of a chamber door, or unlatch it with intent to steal, this will be burglary — Johnson*s case, 2 East. P. C. 488 ; and the like if any lodger in a house or guest in a public inn open and enter another person's cham- ber door, with intent to commit a felony — 1 Hale, 553, 554 ; 4 Bl. Com. 227 ; Rex v. Bington, 2 East. P. 0. 448 ; 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 15 % •: 'i W- '-■ 114 3Sttr0iati?* If 1' It :v} ■i ? .,■'»;! i Irll f;' ^^ r f ' ■ 1 ' ' ■i: U'l .s, commit a burglary by breaking his own house. — 2 JEaat. P. a 502 ; Kel. 84. Oomtructive 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 doors, and the thief then enters, this amounts to burglary, for the open- ing of the door in this case is as much imputable to the thief as if it had been done by his own hands.— (7row;?. 32, (a); 1 Eale, 553 ; 2 East. P. C. 486. And so, if in consequence, of any fraud or deceit the owner is induced to open his door to the thieves, this will amount to breaking ; as, where thieves came with a pretended hue and cry, and required a consta- ble to go with them to apprehend the owner and search his house, and the owner, at the command of the constable, opens the door, when the thieves bouiid the constable and robbed the house, this was held to be burglary. — 1 ITale, 553 ; 3 Inst. 64 ; Cromp. 32, (b) ; 4 Bl 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. — Crascoigne's ease, 1 Leach, 284. For in all these cases the law will not endure to have its justice defrauded by such evasions.— 1 Haw. 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 he putteth 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 — Bex v. Davis, Buss. ^ 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 sufB- cient 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 — Bex v. Boberts alias Chambers, 1 JEast. P. C. 487 ; but, as in this case. Holt, C. J., and Powell, J., doubted, and inclined to another opinion, no judgment was given ; but in a recent case the same point wis before the judges, who were of opinion (three being absent) that the entry was suflScient. — Bex v. Baily, Buss. ^ By. 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 distance, this is burglary in all. — 3 Inst. 64. Where the and the owi ^here is only fc*'eryseparat possessor i hh over a lodging-rooms But where i to a tenant, wi from that beloi business in it severed from 5 place where bi form parcel of severed hy leas and egress to it of the tenant, t^ there.^1 Hale, P- 0. 507. But or often, sleep i thedwelling-houj J- here is no so nal eotnmunieatic from without to tion was formed which were seldon Lord Jillenboroug the communicatio stair-case. Bock 1W5. And when m It, no part of it tenant or a lodger Jici^ V. Bogers, 1 'ndeed, that whic ^iJvided completely a distinct outer do cation; in which ca -PerLd. M. Co neither inhabits it tlien become his d^ of burglary. Thor house with intentioi turniture into it, b sleep there, and it What is a Mansion or Dwelling-house. 115 Where the whole of the house is let out into lodgings, and the owner does not inhabit any part of it, though +here is jonly one outer door common to all its inmates, yet fcy-ery separate apartment is the distinct mansion-house of its possessor. — Hex v. Trapshaw 1 Leach, 427. So where a loft over a coach-house and stables was converted into lodging-rooms. — It. v. Turner, 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 Hast P. C. 507. But if the tenant, or his servant, should usually, or often, sleep in the sho^^ *.t night, it would then become the dwelling-house of the tenant. — 1 JTale, 558. There is no severance, however, where there is ani/ inter- nal eomrmmication, though there may be a separate entrance from without to the part let off; as where the communica- tion was formed by means of a trap-door and a ladder, which were seldom used, but the trap-door was never fastened. Lord EUenborough said it could make no difference whether the communication was through a trap door, or by a common stair-case. Rock v. Stockton, 2 Taunton, 339; 2 Leach, 1015. And when the owner of the house 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. Eex V. Rogers, 1 Leach, 89 ; 2 East. P. O. 507. Unless, indeed, that which was ftpe house originally comes to be divided completely into two «'cparate tenements, and there is a distinct outer door to each, without any internal communi- cation ; in which case they will then become separate houses. —Per Ld. M. Cotvp. 8. But if the owner of a house neither inhabits it himself nor any of his family, it will not then become his dwelling-house, as applicable to the offence of burglary. Therefore when a man purchases or rents a house with intention to reside in it, and moves some of his furniture into it, but neither he or any of his family ever sleep there, and it is broken open in the night, the judges ■ivsiil: X .: ; 'm II "'E v: i! \i V\ r .t 116 38ttriiUt|»« '■5.,' ii . m: V- ; !{ ;': Mi I Ii 11 have determined that a breaking into a house of this descrip- tion does not amount to burglary. — B. v. Lyons, 1, Leach, 185; 2 East. P. 0. 496; B. v. Hallardy 2 East. 498; 2 Leachy 1Q\{notea); B.v. Thompson, 2 Leach, 771; 2 East. 498 ; Contra, 1 JJaw. 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. — Bex v. Martin, Buss ^ By. 108. Or, though a person actually sleep in the house for the purpose of protecting it, if such person forms no part of the domestic family of the owner — as where the owner puts in a workman or other person, who is in no situa- tion of servitude to him, for the purpose of taking care of his goodiS.—Bex v. Fuller, 2 East P. G. 498 ; 1 Leach, 186 {note h.) ; Bex v. Harris, Leach, 701 ; 2 East. P. O. 498. So, if a servant is put into a warehouse to watch goods, this does not make it a dwelling-house. — Bex v. Smith, 2 East. P. 0. 497. But where the owner of 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 animus revertendi — the intention of returning to it ; in such cases, the premises may be the subject of burglary. — Bex v. Murray ^ Harris, 2 East. P. O. 496, cit. Post. 77. But where a person had a counting-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 immediately returning, and during his absence the house was broken open and rifled — this was held not to be burglary. — Post. 76, 77. By4 & 5 v., c. 25, § 18, no building, although within the same curtilage with the dwelling-house and occupied there- with, shall be deemed to be part of such dwelling-house, for the purpose of burglary, or for any of the purposes in said act, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other. § 19. If any person shall break an(^ enter any building and steal therein any chattel, money, or valuable security, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof, every such offender being convicted thereof, shall be liable to be im- prisoned at hard labour in the provincial penitentiary for any term not exceeding fourteen years, nor less than seven years, or be imprisoned in any other prison or place of con- finement not exceeding two years. § 20. If any person shall break and enter any shop, warehouse or counting- house, and steal therein any chattel, money. Or valuable security, be liable award as It must cases of bi at nine in ing. It bein^ many midn malignity o indeed so p at the dead prey, are a rendered hii The breai for if thieve! intent to en accordingly ( fore— this sc 226. The intent ^i- felony. XI trespass, the tion to beat though killini jet if the prii entering, for burglary l man broke ir was held to be By Stat. 23 8ball be appr crow, jack-bit, ^0 break and or shall have ^ or other offen any person ; oi ware-house, coi closed yard or an intent to stc within the intei % 18 v., c. ]$ur0lars». 117 security, every such offender being convicted thereof, shall be liable to any of the punishments which the court may award as hereinbefore last mentioned. Of tJie time of Oommitting the Offence. It must be in the night; and, by 4 & 5 V., c. 25, § 16, in cases of burglary, the night shall be considered to commence at nine in the evening and to conclude at six the next morn- ing. It being moonlight will make no difference, for then many midnight 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 felony, and they accordingly do so, through the hole they made the night be- fore — this seems to be burglary. — 1 Hale, 554 ; 4 Bl. Oom. 226. Of the Intent. The intent of the breaking and entering must be to commit a. felony. Therefore, if the intention was only to commit a trespass, the offence will not be a burglary. Thus, an inten- tion to beat a man in the house, will not be suflScicnt ; 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 Hale, 561 ; 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 Str. 481. By Stat. 23 G. III., c. 88, ic 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 ; or shall be found in or upon any dwelling-house, ware-house, coach-house, stable or out-housc, or in any in- closed 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 17 G. II., c. 5. By 18 v., c. 92, § 28, any person found by night armed ' *•';'■ \^ if 118 ^9=WLuf»U. l4 i:.' !■ :; >i :' ■:; :■ \ I is: :v^ iniv ^ .-Ty !ri:i fi&^ I'W IV. with any dangerous or offensive weapon or instrument, with intent to break or enter into any dwelling-house or other building, and to commit any felony therein ; or any person found by night having in his possession, without lawful excuse, any picklock, key, crow, jack, bit, or other implement of housebreaking, or any match or other combustible or explosive substance, or any person found by night having his face blackened, or otherwise disguised, with intent to commit jfelony, or any person found by night, in any dwelling-house or other building, with intent to commit any felony therein, shall be guilty of a midemeanor, and liable at the discretion of the court to be imprisoned with or without hard labour for any time not exceeding two years. Punishment. By 4 & 5 v., c. 25, § 15, whosoever shall be convicted of the crime of burglary, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial peni- tentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. For forms see ^^ Indictable Offences J" BY-LAWS. By the Municipal Amendment Act, 16 V., c. 181, § 31, the following clause is substituted for the repealed section 185 of the original Municipal Act, 12 V., c. 81, viz : " that all persons committing any offence against any by-law lawfully made by any municipal corporation under the authority of this or any other act, and with regard to pro- secutions for which no other provision is hereby made, may be prosecuted in a summary way before any one or more justices of the peace having jurisdiction within the locality in which the offender shall be resident, or within that in which the offence was committed; and such justice or justices, or other authority before whom any conviction for any such offence shall be had (and any such offender may be convicted on the oath or affirmation of any competent witness other than the prosecutor or informer), shall have full Dower and authority to award the penalty, or the imprisonment, as the case ir.ay be, imposed by the by-law under which V., ce. 26, 26, 27, which enumerate what shall bo deemed capital ofiPences. of convicts for any ten confinement or house o; purpose, eitl Imprisonmer transportatio By4&5^ shall suffer d excluded fron part of this pi commencemen with death bj shall not be n, 01 any convict court, upon th opinion that ui such offender i court may, inst, sametobereco] as if sentence r court shall be ol to be carried i execution to be i the court was er It stood before t to affect the royj And by the 4 made punishable stabbing, or wo •ntent to murder striking. And by 4 & 5 vessel, with inter person. § g. Ex bring any ship o any thing to the or vessel. Andby4&5 i destructive thing- or causing by an^ gerous to life, witl S^^y- § 16. Rape tbe age of ten yea with death. 16 (tupiUl ]|ttnC0finffnt. 121 of convicts ; or for banishment from this province for life or for any term of years ; or for solitary confinement, or for confinement with or without hard labour in any penitentiary or house of correction that may be appointed for such purpose, either during life or for any term of years. § 4. Imprisonment after sentence to be reckoned in the term of transportation. By 4 & 5 v., c. 24, § 20, no person convicted of felony shall suffer death unless it be for some felony which was excluded from the benefit of clergy, by law in force in that part of this province in which the trial shall be before the commencement of this act, or which shall be made punishable with death by some act passed after that day. § 32. It shall not be necessary to make any report to the Governor of any convict under the sentence of death. § 33. If the court, upon the trial of any capital offence, shall be of opinion that under the particular circumstances of the case such offender is a proper subject for the royal mercy, the court may, instead of passing the sentence of death, order the same to be recorded. § 34. Which shall have the same effect as if sentence pronounced in open court. § 35. When the court shall be of opinion that the judgment of the law ought to be carried into effect, the court shall order and direct execution to be done on such offender in the same manner as the court was empowered to direct execution by the law as it stood before the passing of this act. § 36. This act not to affect the royal prerogative. And by the 4 & 5 V., c. 25, the following offences are made punishable with death, viz : § 6. Robbery with cutting, stabbing, or wounding. § 14. Burglary and assault with intent to murder, or stabbing, cutting, wounding, beating, or striking. And by 4 & 5 v., c. 26, § 7, setting fire to any ship or vessel, with intent to murder or endanger the life of any person. § 8. Exhibiting any false lights, with intent to bring any ship or vessel into danger, or maliciously doing any thing to the immediate loss or destruction of any ship or vessel. And by 4 & 5 v., c. 27, § 9, administering poison or other destructive thing ; stabbing, cutting or wounding any person, or causing by any means whatsoever any bodily injury dan- gerous to life, with intent to commit murder. § 15. Bug- gery. § 16. Rape. § 17. Carnal knowledge of a girl under the age of ten years — are made capital offences punishable with death, 16 • ) '»ai ' . :l '• 'ii I 'I 122 e«rr(er»*— il £:: it- ■!(' M: [> ."■ - ,T CARRIERS. 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.— ITaw. 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 delivered to the owner, but also that it was obtained basely, fraudulently, and clan- destinely, in hopes to prevent its being discovered at all, or fixed upon any one when discovered — 1 Bmv. 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 is 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 ho carries them to another place, and dis- poseth of them to his own use, this is felony, because this de- clareth that his intention originally was not to take the goods upon the agreement and contract of the party, but only with a design of stealing them. — Kelynge, 82. Where goods are delivered to a carrier, and he is robbed of them, he shall be charged and answer for tliem, by reason of the hire ; and generally, if a man delivers goods to a common carrier to carry to a certain place, if he loses or damages them, an action upon the case lies against him ; for by the custom of the realm ho ought to carry them safely. — 1 Bac. Ab. 343. Where goods are stolen from a carrier, he may prefer an indictment against the felon, as for his own goods. — Kehjiuje, 39. Sec post title '^ False receipts." CATTLE. By 4 & 5 v., c. 25, § 20, if any person shall steal any horse, mare, gelding, colt or filly, or any bull, cow, ox, hei- fer or calf, or any ram, ewe, sheep or lamb, or shall wilfully kill any of such cattle with intent to steal the carcase or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. J^y stati unlawfully every such victed there to bo impri, tiary for an prisoned in ' term not exc C . By the G( cipalities of empowered U the runnin"- j and other ani impound, oi- for fixing tho' or poultry sha By 20 v., ning at large, railway crossir See also " J % the Mu are authorised and regulating leasing such po for the inipro cemetery." By 13 & u the formation o agcment of Ce persons not k the provisions o subscribed and quato, in their required for a c raent according have paid to tht capital stock, in purpose aforesa required for the cemetery, and si together with the of twenty-five pc eatUe tunnfnfi at Urge* 123 By statute 4 Si 5 V., c. 26, § 16, if any person shall unlawfully and maliciously kill, maim or wound any cattle, every such offender shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the court, to bo imprisoned at hard labour in the provincial peniten- tiary for any term not less than seven years, or to be im- prisoned in any other prison or place of confinement for any term not exceeding two years. CATTLE lUINNING AT LARGE. By the General Municipal Act, 12 V., c. 81, the muni- cipalities of incorporated towns, villages and cities, arc empowered to make by-laws " for restraining and regulating the running at large of horses, cattle, sheep, goats, swine and other animals, geese, turkeys and other poultry ; and to impound, or provide for the impounding of the same ; and for fixing the periods of the year during which such animals or poultry shall be permitted to run at large." By 20 v., c. 12, (Railway Act,) § 16, cattle found run- ning at large upon any highway within half a mile of any railway crossing, may be impounded. See also ^^ Railways, Accidents on Railways." CEMETERIES. By the Municipal Act, 12 V., c. 81, the municipalities are authorised to make by-laws for "laying out, improving and regulating any public cemetery, and for selling or leasing such portions thereof as they may think proper, and for the improvement, ornament and protectior\ of such cemetery." By 13 & 14 v., c. 76, entitled " An Act to authorize the formation of companies for the establishment and man- agement of Cemeteries in Upper Canada," any number of persons not less than twenty, may form a company under the provisions of this act. § 2. And when they shall have subscribed and paid in a sufficient (quantity of stock ade- ((uato, in their judgment, to the purchase of the ground required for a cemetery, and shall have executed an instru- ment according to the form in the schedule A., and shall have paid to thoir treasurer twenty-five per cent, upon the capital stock, intended by such company to be raised for the purpose aforesaid, which sum shall not be less than that required for the purchase of the grounds necessary for such cemetery, and shall have registered such deed at full length, together with the treasurer's receipt for such first instalment of twenty-five per cent., with the register of the county, such \ '. ' .,.,.:. Ill . 1 ' > hi -1 ''a '^m [I:, i '^ 124 €tmtuvitn. Vt' . I . , ill- ■_ ■ ■ Jf -: ■»'• \-l I company shall thenceforth become a body corporate by such name as shall be designated in such deed, with a common seal; and they and their successors, by their corporate name, shall be capable of taking, purchasing, having, hold- ing, conveying, selling and departing with any piece or parcel of land in Upper Canada, to be used exclusively as a cemetery, or a place for the burial of the dead. § 3. Af- fairs of the company to be managed by nine directors, to be elected hy the stockholders annually, by ballot, on the third Monday in January — each shareholder being entitled to one vote for every share he may hold up to ten, and one vote for every five shares above ten ; but no stockholder shall vote unless he shall have paid at least ten shillings upon each share. § 4. Such lot or share in such cemetery to contain not less than 100 superficial feet, and the holder of any such lot, having paid as aforesaid, shall be deemed a share- holder, and every shareholder who shall have paid in not less than £2 shall be eligible for a director. § 5. The di- rectors to e^ect a president, and to have the power of making by-laws for laying out, selling and management " of the grounds — for regulating the erection of tombs, monuments or grave-stones therein, and for empowering the president to execute deeds or conveyances of plots of ground in the ceme- tery to shareholders ; and shall keep a book for recording their by-laws and proceedings, which shall be open to public access without charge. § 6. The real estate of the company to be free from taxes : moneys arising from sales to be ap- plied first in payment of the original purchase of the land, and the residue ir preserving, improving and embellishing the cemetery — and no dividend or profit shall be paid to the members. Provided, nevertheless, that the directors shall be personally liable for any judgment recovered against the company. § 7. Any company so formed as aforesaid shall fur- nish graves for strangers and the poor of all denominations, free of charge, on the certificate of a minister or clergyman of the denomination to which such person may have belonged, that the relatives of deceased are poor and cannot afford to pur- chase a lot : the directors may sell any lot of any size whatever, but no proprietor of a lot of a less quantity than 100 super- ficial feet, to be a member, or vote. § 8. The lots sold to be conveyed by deed, according to the form in schedule D., which need not be registered. § 9. Any person who shall wilfully destroy, mutilate, deface, injure or remove any tomb, monument, grave-stone or other structure placed in any cemetery, or any fence, railing or other work for the protection or ornament of any cemetery, or of any tomb, monument, •^ cemetery lot cut, break < limits of an discharge fir( cemetery, or persons asse therein, or wl tery, shall b( upon convict] other court o: of not leos thi cording to the also be liable corporation fo tions for ensui solemn manne vault under an tery, nor withil teries to be en eight feet at thi order. § 14^ » company causir any river, sprin; watering place, whereby the wj such offence £1^ by any party agj damage specialh alleged, for the cause of complai hours' notice of t call for instalme ^0 be a public ac Fo By 18 & 14 V tapper Canada il title to land requi belong exclusive! thristians, and i\ trustees acting in succession," it is any township or of ten or more, shj tile purpose a^'^res II €tmtuxitu. 125 monument, grave-stone or other structure aforesaid, or of any cemetery lot within any cemetery — or shall wilfully destroy, cut, break or injure any tree, shrub or plant within the limits of any cemetery, or play at any game or sport, or discharge fire-arms (save at a military funeral) in any such cemetery, or who shall wilfully and unlawfully disturb any persons assembled for the purpose of burying any body therein, or who shall commit any nuisance in any such ceme- tery, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof before any justice of the peace, or other court of competent jurisdiction, be punished by a fine of not IcoS than one pound, nor more than ten pounds, ac- cording to the nature of the offence — and such offender shall also be liable to an action of trespass against him by such corporation for damages. § 10. Company to make regula- tions for ensuring burials being conducted in a decent and solemn manner. § 11. No body shall be buried in any vault under any chapel or other building in any such ceme- tery, nor within fifteen feet of the outer wall. § 12. Ceme- teries to be enclosed with walls or fences, of the height of eight feet at the least. § 13. Cemeteries to be kept in good order. § 14. To be properly drained. § 15. Any such company causing or suffering to be brought or to flow into any river, spring, well, stream, reservoir, aqueduct, pond, or watering place, any offensive matter from such cemetery, whereby the water shall be fouled, shall forfeit for every such oftencc £12 10s. § 16. To be recovered with full costs by any party aggrieved. § 17. Who may also sue for further damage specially sustained by him ; or if no special damage alleged, for the sum of £2 10s. for each day, during the cause of complaint, after giving the company twenty-four hours' notice of the offence. § l8. Directors empowered to call for instalments, on pain of forfeiture. § 19. This act to be a public act. For the Schedules — see the act. By 13 & 14 v., c. 77, reciting " that in many parts of Upper Canada the inhabitants are desirous of securing the title to land requisite for a burying ground, which shall not belong exclusively to any of the various denominations of Christians, and that the same should be taken and held by trustees acting in a corporate capacity, and having perpetual succession," it is enacted that whenever the inhabitants of any township or locality in Upper Canada, to the number of ten or more, shall desire to take a conveyance of land for the purpose a'^resaid, it shall be lawful for them to appoint M-h ■k4 M l^ 126 ^tnum. 'i»: fi .. f 'i^ W ' I' 't: kij P trustees, to whom and their successors, to be appointed as specified in the deed of conveyance, the requisite land shall be conveyed ; and such trustees, and their successors in perpetual succession, shall hold the same accordingly ; the quantity of land so conveyed not to exceed ten acres for any one township or locality. CENSUS. By statute 10 & 11 V., ch. 14, former acts are repealed. § 2 enacts that the Receiver-General, Secretary of the pro- vince, and the Inspector-General shall continue to be a board of registration and statistics. § 3. Board to have the general supervision of the t*tatistics of the province, and shall draw up an annual report to be laid before the legis- lature. § 4. Secretary to be appointed. § 5 to 15 arc repealed by 14 & 15 V., c. 49. § 16. Ministers of religion to keep a registry of baptisms, marriages, funerals and deaths, and forward same to the clerk of the peace or town clerk within five days after the first day of January, April, July and October in every year {a). § 17. In case of no resident minister or teacher, the heads of families to notify the township clerk of any birth, marriage or death. § lb. Returns to be forwarded by clerks of the peace and town clerks to the board on or before the first day of January, yearly. § 19. Coroners also to return lists of inquests and findings of juries to the board on or before the first of January, yearly. § 20. Clerks of tin? peace to furnish lists (in triplicate) of convictions at sessions, or before justices, us the board shall appoint. § 21. Any person neglecting or refusing to comply with this act in any matter for which no punishment is specially provided, shall be guilty of a misde- meanor and punishable accordingly, and all penalties incur- red under this section to be applied as other penalties before provided for. By 12 v., c. 90, § 1, returns required by the 16th section of last recited act to be made once Sa eiar only, whin five days after the first of January. § 2o t.y long as such act, 10 iSL 11 v., c. 14, shall remain in force, it shall not be ne- cessary for any minister, clergyman or justice, to return to the clerk of the peace the list of marriages solemnised bv him, required by the 6th section of * 11 G. IV., c. 36. By 14 & 15 v., c. 49, § 2, census of the province shall be taken in January 1852, in January 1862, and evr;- tenth year afterwards. § 3. Census to be taken under ^ (a) But now once a year only tinder 12 V. o. 'JO. mttnnn^* 127 superintendence of the board of re(»istration and statistica, which shall frame instructions and forms. § 4. The same to extend to all heads of statistical information includeu in the schedule to the census act, 4 & 5 V., c. 42 (a), and to such further information as the board may deem proper. § 5. The Governor to appoint commissioners for counties, cities, and incorporated towns containing by the last census five thousand souls or upwards. § 6. Census commissioners for each locality to appoint one or more enumerators for each township, and for each ward of city, or incorporated town, and may divide such wards into two or more enumera- tion districts, and appoint one or more enumerators for each. The penitentiary, gaol or house of correction, public hospital, lunatic asylum to be separate enumeration districts, and the ffar;len, gaoler, keeper, or other person in charge to be the enumerator. § 7. Enumerators to act under the direction of the commissioners, and each commissioner shall instruct and furnish forms to the enumerators, cause public notice to be given of taking the census, and information to be given to the enumerators, &c. § 8. Enumerators required on the second Monday in January in every year in which the census is to be taken, and on such number of days next after as may be necessary, under the instructions of the commissioner, to visit every house in his enumeration district, and take an account in writing of the name, sex, age and occupation of every living person abiding therein on the night of Sunday next preceding such Monday (distinguishing such as are per- manent or transient) and verity such account before a justice of the peace, in the form given, and deliver the same to the commissioner on or before the ir)th of February. § 9. Census commissioner to examine such accounts, and cause such defects to be supplied. § 10. Census commissioner to return such accounts certified by hjm to the board. The board to examine, and cause any defects or inaccuracies discovered to bo corrected, and then to make such abstracts and tables as the Governor in council shall direct, to be laid before the next session of parliament. § 11. Enumerators to be supplied with printed schedules to be left with occupants of houses, &c., in the course of the week ending on Saturday next before the second Monday in January. Every sucn occupant to fill up the same to the best of his knowledge or belief, and deliver the same to the enumerator when required, under a penalty of not less than tioo nor more than he pounds. § 12. Enumerators to collect such scliedules (a) The act itaolf repealed by 10 & 11 V., c. U. ■J- 4 w i' t ! ■ :: :f- W ' hi ■ 1 i- >■ ( * 128 (H^tVttOVilVU on the second Monday in January, or so soon as possible afterwards, and correct the same if erroneous, with power to make inquiries : and when so completed or corrected shall copy the information therein contained into the account to be by them taken as aforesaid, and add thereto the accounts they may have taken, and information collected of persons and things not returned in the schedules, and then return the same to the commissioner, who shall deliver them with his return to the board. § 13. Enumerators empowered to ask questions, and have free access to all assessment rolls and other statistical documents. Any person refusing to answer, or answering falsely, to incur a penalty of not less than twenty shillings nor more than £5, in the discretion of the magistrate before whom the same shall be sued for. §. 14. Penalties may be recovered in a summary manner at the suit of any enumerator before any one justice of the locality on the oath of the enumerator or any other credible witness, and if the penalty and costs (not exceeding 10s.) be not forthwith paid upon conviction, the said justice may in his discretion cause the same to be levied by distress and sale, by warrant under his hand and seal, or commit the offender to the common gaol of the place for any period not exceeding one month, or until penalty paid. One moiety of the penalty to belong to the crown for the use of the pro- vince, and the other to the prosecutor, unless examined as a witness, in which case the whole to go to the crown. § 15. Any census commissioner or enumerator wilfully disobeyinir or contravening any of the provisions of this act, or wilfully making any false return, shall be guilty of a misdemeanor, and on conviction liable to a penalty not exceeding .£25 uor less than ^5, in the discretion of the court, and to imprison- ment until paid. Such penalty to belong to the crown. § lij. Provision for removal of any officer appointed under this act. § 17. Allowance to commissioner and enumerator as therein provided. § 18. Report to be laid before parlia- ment. § 19. Interpretation clause. § 20. Power to the Governor to alter the month for taking the census in county, in case of necessity. CEllTIORARI. A certiorari is an original writ issuing out of the Court of Chancery or the King's Bench, directed in the king's name to the judges or officers of inferior courts, com- manding them to certify or to return 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 any as he shall and no pro be removed certiorari.- A certior of error do. jurisdictions ceedinga ret 580. Andi even in such finally to hej the Court of words.^ — 2 ^ should never conviction, nn below is doul Also, it seems that issue is j( for the trial of Jt hath been gran table for a award it, at the tive of suing in agreed, that it ii or deny it at { And the court i dant grant u cej perjury, or forg crimes deserve a m'ght delay, if Haw. 287. R \' On indictm and 8 & 9 W., ^ of certiorari at t t>e granted out o; racnt or presentr had from before , shall be awarded ^^ court made fol writs of certioral Ring's Bench whl also the name of I and all parties pri allowance thereofj 17 €tvii0vavU 129 as he shall assign to determine the cause. — 1 Bae. Ahr. 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 JTaw., c. 1, § 14. A certiorari lies in all judicial proceedings in which a writ of error does not lie, and it is a consequence of all inferior jurisdictions erected by act of parliament, to have their pro- ceedings returnable 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 empowered 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 Haio. 286. But it seems agreed that a certiorari should never be granted to remove an indictment after 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 granting a certiorari, that issue is joined in the court below and a venire awarded for the trial of it.— 2 Haio. 288. It hath been adjudged that wherever a certiorari is by law grantable for an indictment, the court is bound of right to award it, at the instance of the king, and he has a preroga- tive of suing in what court he pleases. 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 ffaw. 287. And the court will not ordinarily at the prayer of the defen- dant grant a certiorari for the removal of an indictment for perjury, or forgery,, or other heinous misdemeanor, for such crimes deserve all possible discountenance, and the certiorari might delay, 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 & 9 W., c. 33, it is enacted " that in term time no writ of certiorari at the prosecution of any party indicted, shall bo granted out of the King's Bench, to remove any indict- ment or presentment of trespass or misdemeanor before trial had from before the justices in sessions, unless such certiorari shall be awarded upon motion of counsel, and by rule of of court made for the granting thereof. But in the vacation writs of certiorari may be granted by any justice of the King's Bench Avhose name shall be endorsed on the writ, and also the name of the person at whose instance it is granted, and all parties prosecuting such certiorari, shall, before the allowance thereof, find two sufficient manucaptors who shall 17 Wn fj:: l^ i ^ m 'im .! ' i t' t ■; *)U '■5 M. 130 €tvtiovuvL : i: ■ ■ i )• ■ ■,« ii. M enter into a 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 sura of £20, with condition at the return 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 indict- ment or presentment was found, after such certiorari shall be returned, or the next terra, if in London, Westminister 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 the court, and also that the party prosecuting such writ of certiorari shall appear frora day to day in the said Court of King's Bench, and not depart until he shall be discharged by the court, '^nd the said recognizance shall be certified into the .4/ ri Bench with the certiorari and indictraent to be there !^'a 'i id the name of the prosecutor (if he shall be the party grieved) or sorae public officer shall be endorsed on the said i'^.dictment. And if the defendant prosecuting the writ of cer;: —ari convicted of the offence for which he was in- dicted, then Q\e Court of King's Bench shall give reasonable costs to the prosecutor, to be taxed according to the course of the said court, Avho shall for the recovery thereof within ten days after demand and refusal of payment, on oath, have an attachment awarded, and the recognizance shall not be discharged until the costs are paid. But if the person procuring the certiorari, being the defendant, shall not before allowance thereof procure such manucaptors to be as afore- said, the justices may proceed to the trial of the indictment in sessions, notwithstanding the writ of certiorari delivered. On a Conviction or Order. By 13 G. II., c. 18, no certiorari shall be granted to remove any conviction, judgment, order or other proceeding, before any 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 that the party suing for the same hath given six days' notice thereof in writing to the justice or justices, or two of them, (if so many there be), before such proceedings have been, to the end that such justices may shew cause, if they so think fit, against the issuing of the certiorari ;, and by 6 G. II., c. 19, no such certiorari shall be allowed to remove any such judgment, u the allowanc cient suretie before the ju shall have be Kind's Bend at his own co and to pay th was made witi his full costs, where such co into such reco the justices ins benefit of the j in such raannei said recognizan then filed with thereby, and if the court, the p thereof, within such demand an ment granted f< not be discharge plied with. „ ^- 1. An. A iiench, that no c of justices, from sessions, before t cause it hinders i order be reraovc( But if the time o the rule. By jy, in the case of Skt be taken of this i that after it is file After a certioi makes all the subs removed by it, err tor the removal of be not delivered b( the justices may may set a fine, to m delivered.— X. Jia done between the .') ■ ■■■' eettfor^vi. 131 judgment, unless the party prosecuting the certiorari, before the allowance thereof, enter into a recognizance with sufl5- cient sureties before a justice of the county or place, or before the justices at sessions where such judgment or order shall have been given or made, or before a justice of the King's Bench, in £50, with condition to prosecute the same at his own costs and charges with eifect, without wilful delay, and to pay the party in whose favour the judgment or order was made within a month after the same shall he confirmed his full costs, to be taxed according to the course of the court where such confirmation shall be ; and if he 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 person entitled to the costs, for the recovery thereof, within ten days after demand made, upon oath of such demand and refusal of payment, shall have an attach- ment granted for the contempt, and the recognizance shall not be discharged till the costs are paid and the order com- plied with. U. 1. A71. 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, be- cause it hinders the privilege of appealing ; and that if any order be removed before appeal, it should be sent down again. But if the time of appeal be expired, 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 are removed by it, erroneous. — 2 Haiv. 293. But if a ertiorari 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 Haiv. 294. And the justices may set a fine, to complete their judgment, after a certiorari delivered. — L. Ray. 1516. A certiorari removes all things done between the teate and return. — L. Ray. 835, 1306. ¥ i. .M iw" ■ t •{ *■-■■ ■1 t'S ?H •' I i|: j: ■i-ii; l.ilif ! lij 1 lt>TiS.,. Wm mm 11?^' ') \f ¥^ II I 'i i- A 132 (^tvtiovuvU The return of it. Every return of a certiorari ought to be under seal. — 2 Haw. 294. And although the cuatos rotuhrum keeps 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 the clerk of the peace only return it, nothing is thereby removed.— 2 ffaw. 294. The certiorari may be sometimes to remove and send up the record itself, and sometimes out only the tenor of the record, (as the words therein be,) and it must be obeyed accordingly. — Dalt. c. 195 ; 2 ffaw. 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, asi in commissioners of sewers, or for not repairing highways, or for some such special causes, because the remedy for a false return is either an action on the case at the suit of the party grieved, or an information at the suit of the king. — Dalt. c. 195. If the person to whom the certiorari is directed do not make a return, then an alias, that is, a second writ ; then a pluries, that is, a third writ, or causam nobis signifiees shall be awarded; and then an attachment. — Crora. IIG. The return of a certiorari may be thus : — On the back of the writ endorse these words, or the like — "T/iC execution of this writ appears in a schedule to the same writ annexed." And that schedule may be thus, on a piece of parchment, by itself, and fixed to the writ : County of , > I, , Esquire, one of the keepers of the to wit. \ peace and justices of our lady the Q,ueen assigned to keep the peace within the said county, and also to hear and determine divers felonies, trespasses, and other mis- demeanors, in the same county committed, by virtue of this writ to me delivered, do, under my seal, certify unto her Majesty, in her Court of Queen's Bench, the indictment or conviction of which mention is made iri the same writ, toge- ther with all matters touching the same. In witness whereof, I, the said have to these presents set my seal. Given at , in the said county, the day of , in the year of the reign of her Majesty Queen Then take the record of the said indictment, and close it within the schedule, and seal and send them up both together with the certiorari. Recognizance on Certiorari. County of , ) Be it remembered, that on the day of to wit. ) in the yearof the reign, &c.,A.B. of C. D. of one of the k ftueen in and to our sovere money of Can lands and ten< if shall pr( delay, at his o issued out of t ftueen herself and singular tl and contempts, in the year whereof the sai oi the keepers Q.^een in and f( prosecutor, wit] conviction shal, costs and charg said court; then in full force. T above said. C A challenge t( even an endeavoi and the messeng^ with him who set Bl. Com. 150. under provocatio in a deliberate d murder in him Where the provo( It was held to be j sucJi a letter was commission of the Rex V. Phillips, ^ to a breach of words conveyinff another.— /j;. ^,f jr so, any words wli party to give a cht that such words as ^0 a breach of t mediate provocatio Inst. 181. The punishment and imprisonment, t enaUeniie to iFfdlit 133 C. D. of , and E. F. of , came before me, J. C. Esquire, one of the keepers of the peace and justices of our lady the dueen in and for the county of , and acknowledged to owe to our sovereign lady the Q,ueen the sum of £50, cf lawful money of Canada, to be levied upon their goods and chattels, lands and tenements, to her Majesty's use, upon condition that if shall prosecute with effect, 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 lady the Q,ueen, before the Q,ueen herself, at Toronto, to remove into the said court all and singular the records of conviction, of whatever trespasses and contempts, against the form of the statute made and passed in the year of her Majesty's reign, entitled, " An Act," &c., whereof the said is convicted before me, J. C. Esquire, one of the keepers of the peace and justices of our said lady the Q,ueen in and for the said county of , and shall pay to the prosecutor, within one month next after the said record of conviction shall be confirmed in the said court, all his 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 acknowledged, the day and year first above said. J. C. CHALLENGE TO FIGHT. A challenge to fight a duel is a high offence 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 Ilaiv., c. 03, § 3; 3 Inst. 158 ; 4 Bl. Com. 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 imder provocation, it would be murder in him and his second. — 11. v. Mice, 3 JEast. 581. Where the provocation consisted in sending an abusive letter, it was held to be an indictable offence, and the act of sending such a letter was held to be an act done towards procuring the commission of the misdemeanor meant to be accomplished. — Rex V. Phillips, 6 East. 464 ; so, words spoken which tend to a breach of the peace, are equally indictable, such as words conveying an express challenge, or a threat to beat another. — It. 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, hj fine and imprisonment, and is guided by such circnmstances of m \f ; 1 i ! !l;'-^ !Im i ! I' ;■ 4' iM < I R.;riH 1 ; fflnl ''"' I'll w If i % 134 m -\ f IM |i! . e!ia(miiettj?< aggravation as appear in each particular case. — 1 Haw., c. 6B, § 21; Bex v. Bice, 3 Uast. 384. Indictment for sending a challenge. {Archhold.) County of , I The jurors for our Jady the Queen, upon to wit. i their oath present, that J. S., late of the town- ship of , in the county of , gentleman, being a person of a turbulent and quarrelsome temper and disposition, and con- triving 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 sovereign lady Victoria, at the township aioresaid, in the county 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 writing is as follows : {hvrc set out the fetter, with such inucmhes as viay he necessary) to the great damage, scandal and disgrace of the said J. N., in contempt of our lady the Queen and her laws, and against the peace of our lady the Queen, hercrown and dignity. 'Und count. And the jurors aforesaid, upon their oath afore- said, do further present, that the said J. S. contriving and intending as aforesaid, al'terwards, to wit, on the day and year aforesaid, with force and arms, at the township aforesaid, in the county aforesaid, wickedly, wilfully and maliciously did pro- voke, instigate, excite and cliallenge the said J. 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 lady the Queen and her laws, and against the peace of our lady the Queen, her crown and dignity. CHALLENGE OF JURORS. See ''Jury:' CHAMPERTY. Champerty is a bargain made with a plaintiff or defendant in any suit, to have part of the land, or debt, or other thing sued for, if the party litigant prevails in the action or suit, the champertor agreeing to carry on the suit at his own ex- pense; it amounts, in fact, to a purchase of the suit; a practice which, Blachstone 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 another's right. — 4 Bl. Com. 135. This offence is a species of maintenance, and punishable by fine and imprisonment. — B>id. Chance med upon a sudden The true criter seems to be thii at the same tin is then guilty o begun to fight, further struggle adversary, kiljg chance medley^ The party asf au killing his as^ai: niently can, eith impediment, or permit him ; for yield a step with< bodily harm, in ^ defence, kill his i The penalty ai mitted chance me portion of the g( fine— JF'os^ 287 ; as a matter of co writ of restitutio pense, in cases wh misadventure or direct a general Com. 188, note (1 And now, by st sliall be incurred misfortune, or in without felony. C . % 20 v., c. .- intended to operat m Upper Canada, 1 and an actual anc things mortgaged tors of the mort J ers or mortgagees unless the mortgajrc together with an j heremafter providci affidavit of the mor CHANCE MEDLEY. 135 Chance medley is where homicido is committed by a man upon a sudden affray, in his own defence. — 4 Bl. Com. 184. The true criterion between chance medley and manslaughter y seems to be this, — where both parties are actualy combatting at the same time when the mortal stroke is given, the slayer is then guilty of manslaughter ; 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-defence. — Ibid. The party asf aulted, therefore, in order to excuse himself in killing his assailant, must flee from him as far as he conve- niently can, either by reason of some wall or ditch, or other impediment, or as far as the fierceness of the assault will permit him ; for it may be so fierce as not to allow him to yield a step without manifest dt. ;^er of his life, or enormous bodily harm, in which last predicament he may, in his own defence, kill his assailant instantly. — 1 Hale. P C. 483. The penalty anciently inflicted on any one who had com- mitted chance medley, seems to have been a forfeiture of a portion of the goods and chattels of the party, by way of fine — Fost. 287 ; which, however, was remitted to him, as a matter of course, on his suing out, and paying for a writ of restitution — 2 Haiv. 381 ; but to prevent this ex- pense, in cases where the death has happened notoriously by misadventure or in self-defence, the judges now always direct a general verdict of acquittal. — Fost. 288 ; 4 Bl. Com. 188, note (1.) And now, by stat. 4 & 5 V., c. 27, § 8, no punishment shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony. CHATTEL MORTGAGE. By 20 v., c. 3, § 1. — Every mortgage or conveyance intended to operate as a mortgage of goods and chattels, in Upper Canada, not accompanied by an immediate delivery and an actual and continued change of possession of the things mortgaged, shall be absolutely void as against credi- tors of the mortgagor, and against subsequent purchas- ers or mortgagees in good faith for valuable consideration, unless the mortgage or conveyance, or a true copy thereof, together with an afiidavit of a witness thereto, sworn as hereinafter provided, of its due execution, together with an affidavit of the mortgagee or his agent properly authorised fii ■it iiwF-^ 136 a^ffHtUl SfnoVtQUQt* \ li: it-' ■ ir li'i t : ii. ■fi^: .1 * to take such mortgage in writing, (a copy of which authority shall be registered therewith if such agent be aware of all the circumstances connected therewith,) that the mortgagor is justly and truly indebted to the mortgagee in the sum mentioned therein ; that it was executed in good faith and for the express purpose of securing the payment of the money so justly due, or accruing due, and not for the purpose of protect- ing the goods and chattels mentioned therein, against the creditors of the mortgagor, or preventing the creditors of such mortgagor from obtaining payment of any claim against him, shall be registered as hereinafter provided within Jiv "'•'vs from the execution thereof. § 2. Every sale of goods and chattels which shall not be accompanied 'jy an immediate delivery and followed by an actual and continued change of possession of the goods and chattel'- sold, shall be in writing, and such writing shall be a conveyance under the provisions of this act, and shall be accompanied by an affidavit of a witness thereto of the due execution thereof, and an affidavit of the bargainee or his agent duly authorised in writing to take such conveyance, a copy of which authority shall be attached to such conveyance that the sale is bond fide, and for good consideration, as set forth in the conveyance, and not for the purpose of holding or enabling the bargainee to hold the goods mentionerl therein against the creditors of the bargainor, and sball be registered as hereinafter provided within five days ^ the execution thereof, otherwise such sale shall be a ely void as against the creditors of the bargainor, and as against subsequent purchasers or mortgagees in good faith. § 3, contains a provision for making valid mortgages of personals for securing future advances to be made. § 4.— That all instruments mentioned in this act shall contain a full description of the goods, &c. § 5. That the instru- ments mentioned shall be registered in the office of the clerk of the county court, who shall endorse thereon the time of receiving the same. § 8. That every such mortgage shall cease to be valid as against creditors and others after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term, a true copy thereof, with a statement exhibiting the mortgagee's interest in the property, and of the amount still duo for principal and interest thereon, and of all payments made on account, shall be again filed in the office of the clerk of the county court, where such goods are then situate, with an affidavit of the mortgagee or his agent duly authorised verifying such statements. § 11. That the interest or equity of r< bo seized ai against the davits to bo commission e ^ it' ^^P^'"^' <;■ "2, savinff the first da/ Cheats, whi general be des or endeavourir means of some common honesi ^ng "n illiterate reading it over It was written writings to ano r'«ge, which, in warrant of attor '"S a ^viJJ, and 81 <^n an indict ch;.iig,ng corn d( corn instead of i Jtwasonlyapr,^ answered, that bi cernod the pubj] court unanimous! ir. and Wood, 1 -ino selling of 1 'It common law ~a "• \(f[iiiston, 6 M VVhere a porsr attachment for a 1 pretended discharl gao er under whi/ !^«Jd that this was in thus effecting ^aweett, 2 £a8t. -ndictable for frat thus, where two pe ;r^th the pay office they were held to | 18 ^ iE^ttutn. 137 equity of redemption in any such goods and chattels may be seized and sold by the sheriff under any writ of execution against the goods and chatlels of the party. § 13. Affi- davits to be sworn before a judge of the superior courts, a commissioner, or a justice of the peace : fee, one shilling. § 14, repeals the former acta, 12 V. c. 74, and 13 & 14 V., c. 62, saving acquired rights. § 15. Act to commence on the first day of August next (1857). CHEATS. By the Common Law. Cheat?, which are punishable by the common law, may in general be described to be deceitful practices, in defrauding or endeavouring to defraud another of his known right, by means of some artful device, contrary to the plain rules of common honesty ; as by playing wilh faise dice ; or by caus- ing an illiterate person to execute a d ed to his prejudice, by reading it over to him in words different from those in which it was written ; or by persuading a woman to execute writings to another, as her ti'ustee, upon an intended mar- riage, which, in truth contained no such thing, but only a warrant of attorney to confess a judgment ; or by suppress- ing a will, and such like — 1 Haic. 188. On an indictment against the defendant, a miller, for chi'uging 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 con- cerned the public, and therefore was indictable, and the court unanimously agreed not to quash it. — T. 16, €r. 2, K. and Wood, 1 Sess. C. 217. The selling of unwholesome provisions is a fraud indictable at common law.— 4 Bl Com. 162 ; 2 East. P. C. 822 ; E. V. Johnston, 6 Uast. 133. Where a person who was committed to gaol under an attachment 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 interruption to public justice. — Ma v. Fawcett, 2 Hast. 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. Bam- hridge, cit. 5 East. 136. A surveyor of the highways may 18 I 1 ;.«, Mm. '1 1 1 138 egeats. KW. > ■ >■■ li ■ 1 " m i be indicted for converting to his own use gravel which had been dug at the expense of the inhabitants of the parish, and for employing, for his own private gain and emolument, the labourers and teams of the parishioners, which he ought to have employed in repairing the highways. — 3 Chit. C. L. 666. So also, any fraud which is practised on the public by means of false weights or measures^ or any false token, having the semblance of public authority, and purposely calculated for deceit, and by which the public may be imposed upon, without any imputation of folly or negligence, is indictable at common law.— 2 JEast. P. C. 820. As where a person sells corn in a bushel, short of the statute measure, or puts something into the bushel to help to fill it up.— 72. v. Pinckney, 2 East. P. 0. 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 de- ceit.— B. V. Young, 3 T. li. 104, per Buller, J. ; B. v. Nicholson, cit. 2 Burr. 1130 ; B. r. Driffield, say. 146. By Statute. By statute 4 & 5 Y., c. 25, § 4 ') : if any person shall by any false pretence obtain from any other person any chattel, money or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned at hard labour in the provincial penitentiary for any term not exceeding fourteen years, nor less than seven years, or imprisoned in any other prison or place of confinement for any term not exceeding two years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award : provided always, that if upon the trial of any person indicted for such misdemeanor it shall be proved that he obtained the property in question in any such a manner so as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor, and no such indictment shall be removable by certiorari, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts. By 18 v., c. 92, § 11, if any person shall obtain any pro- perty whatever with intent to defraud, such offender upon conviction shall be liable to be imprisoned for any period not exceeding two years, with or without hard labour. For forms of procedure see title " Indictable Offences.'' A child u any capital ( nature may 20; Post. 34 From a s humanity of tion, permit a confession. — i if it appear, 1 stances, that malignity of and judgment 20, 25, 434 ; . On the attainn of infants are those of the re human mind ha right and wroi 247; Bait. 47i See . -By statute 4 . ciously, either b or entice away,' years, with inte: other person ha\ of the possessioi article upon or a such article ma^ such intent as a knowing the sam( decoyed, enticed ed, every such ofl or abetting such convicted theroo labour in the pr than seven years or place of con: years; provided, of an illegitimate Jon of such child, hereof on accoun or taking such chi- any other person 1 ; shall be left open to bo adjudicated upon and determined as if this act had not been passed. § 3. Enacts that in the event of its being judicially decided that any of such parson- ages or rectories were erected according to law, and until a judicial decision shall be obtained (a) on such question. the right of presenting an incumbent or minister to such e or ler (a) The legality of such parsonages or rectories has been recently es- tablished by the Court of Chancery. parsonage c Church Soc which the sj persons, boc by any hy-h passed for t appoint in tli By an act of June, 185 Majesty, rese ^n Act to en. land and Irel vided and ena "Whereas, d( Church of En power of regui relating to disc ment, and it h order tJiat they 0^ self.governir raunities ; there consent of the J enacts as follow 1. Thebishor Church of Engl in the several d constituted in t. proceedings as make regulations the appointment person bearing any rights of the iw the convenien affairs and interej bers thereof, and "ghts, privileges or of any person q ofthe said United aiw-ays that sucli only to the diocese J' J^e bish Church of Englan jp general assembl fives as shall be di 19 eStttdi of mntiUnTf. 145 parsonage or rectory, shall vest in and be exercised by the Church Society of the church of England diocese within which the same shall be situated, or in such other person or persons, bodies politic or corporate, as such Church Society by any by-law or by-laws to be by them from time to time passed for that purpose, shall or may think fit to direct or appoint in that behalf. By an act of the provincial legislature passed on the 19th of June, 1856 (and 19th year of the reign of her present Majesty, reserved and assented to, 6th May, 1857,) entitled An Act to enable the members of the United Church of Eng- land and Ireland in Canada to meet in St/nod," it is pro- vided and enacted as follows : "Whereas, doubts exist whether the members of the United Church of England and Ireland, in this province, have the power of regulating the afiairs of their church, in matters relating to discipline, and necessary to order and good govern- ment, and it is just that such doubts should be removed, in order that they may be permitted to exercise the same rights of self-government that are enjoyed by other religious com- munities : therefore her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : 1. The bishops, clergy, and laity, members of the United Church of England and Ireland, in this province, may meet in the several dioceses, which are now, or may be hereafter constituted in this province, and in such manner and by such proceedings as they shall adopt, frame constitutions and make regulations for enforcing discipline in the church, for the appointment, deposition, deprivation, or removal of any person bearing office therein, of whatever order or degree, any rights of the Crown to the contrary notwithstanding, and for the convenient and orderly management of the property, affairs and interests of the church, and the officers and mem- bers thereof, and not in any manner interfering with the rights, privileges or interests of other religiousi communities, or of any person or persons not being a member or members of the said United Church of England and Ireland ; provided always that such constitutions and regulations shall apply only to the diocese or dioceses adopting the same. 2. The bishops, clergy, and laity, members of the United Church of England and Ireland, in this province, may meet in general assembly within this province, by such representa- tives as shall be determined and declared by them in their 19 I y if! d '!• ! > 111 ■ i'-iU ■y t| '1 m *Kil! u 146 e^tttts Of iBnolunn. ':i- ^ ':''^i. !:i ■ll'' " IJL; n^ kit;'! if;; 7' ■■>■; ': ■ ,■*■. 1 1 T^*' several dioceses ; and in such general assembly frame a con- stitution and regulations for the general management and good government of the said church in this province ; provided always, that nothing in this act contained shall authorise the imposition of any rate or tax upon any person or persons whomsoever, whether belonging fo the said church or not, or the infliction of any punishment, fine, or penalty upon any person, other than his suspension or removal from any oflSce in the said church, or exclusion from the meetings or pro- ceedings of the diocesan or general synods ; and provided also, nothing in the said constitutions or regulations, or any of them, shall be contrary to any law or statute now or hereafter in force in this province. With reference to this act and its importance to the Church of England establishment within this province, his lordship the Bishop of Toronto, makes the following remarks in his opening address at the first synod held under it at Toronto, on the 17th of June, 1857 : The object of this act, as set forth in the preamble, is to confer on the members of the Church of England and Ireland in Canada, the power of regulating the affairs of their church, in matters relating to discipline, and necessary order and good government, and to exercise the same rights of self- government that are enjoyed by other religious communities. The statute contains two enacting clauses. The first con- fers power to hold diocesan synods, to frame constitutions, and make regulations for enforcing discipline in the church for the appointment, deposition, deprivation, or removal of any person bearing oflice therein, of whatever order or degree, " any right of the Crown to the contrary notwithstanding ;" and for the convenient and orderly management of the pro- perty, affairs, and interests of the church, in matters relating to or affecting only the said church, and the officers and members thereof, and not in any way interfering with the rights, privileges, or interests of other religious communities, or of any person or persons not being a member or members of the said United Church of England and Ireland : provided always that such constitutions and regulations shall apply only to the diocese or dioceses adopting the same. Now, it may be seen that this measure is very comprehensive in its provisions, and gives ample powers to meet all the probable requirements of the church ; and yet the royal prerogative is sufficiently guarded, and our connexion with the mother church through its head distinctly preserved. 1st. The power of choosing our bishops is substantially but not directly conferred tary of sti extreme ca salutary ai piace, the settling the established. comprehens all the dioc abaolutely n( of the chun from time t church in th, IS desirable, i in council u bishops, with better conduc vmcial synod divided into tv the several d l»shop, and th^ the church ass second clause o ^ilJ, doubtless, the church reqi % Stat. 4 & person shall arr upon any civil service, or shall! to perform the thereof, every 81 and being com oy fine or impri* See alj ^y 18 v., c. . arising from the] Shall continue tol ^Pper Canada A stipends or allort passing of the i J be a first charge] we present incu Cletfli?. 147 conferred ; the sanction of her Majesty, through her secre- tary of state, to the person chosen, if required, and in an extreme case may be withheld, but if ever withheld, it will be salutary and for the good of the church. In the second place, the Queen preserves her territorial sovereignty in settling the limits of new bishoprics when required to be established. The second clause of the statute is still more comprehensive, and contemplates provincial synods in which all the dioceses may be represented. Such a provision is absolutely necessary to the salutary extension and well-being of the church in this great country. Questions will arise from time to time which " will affect the welfare of the church in these colonies, and will render it necessary, as it is desirable, that the bishops, clergy and laity should meet in council under the provincial, metropolitan, or senior bishops, with power to frame rules and regulations for the better conduct of our ecclesiastical affairs as by such pro- vincial synod may be deemed expedient. It should also be divided into two houses, the one consisting of the bishops of the several dioceses under their metropolitan or senior bishop, and the other of the presbyters and lay members of the church assembled by representation." For all this the second clause of the statute amply provides, and its objects will, doubtless, be carried out so soon as the necessities of the church require. CLERGY. By Stat. 4 & 5 v., c. 27, § 23, it is enacted that if any person shall arrest any clergyman or minister of the gospel, upon any civil process, while he shall be performing divine service, or shall with the knowledge of such person, be going to perform the same, or returning from the perform.mce thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall suffer such punishment by fine or imprisonment, or by both, as the court shall award. See also^o«( title '•^Punishment" § 36. CLERGY RESERVES. By 18 v., c. 2, which by § 1, provides that the moneys arising from the sale of clergy reserves in Upper Canada, shall continue to form a separate lund, to be called " The Upper Canada Municipalities Fund," and that certain annual stipends or allowances charged on the reserves before the passing of the imperial act IC V., c. 21, should continue to be a first charge thereon, aiid payable during the lives of the present incumbents, with power to such recipients to 11 e" ^ Wm[ m V?l inl Hv 1 : 1 i, -^ 5- 160 eutu of m 39ea(re. lliy>:1'Hi him to the justices in sessions, the justices may, on examina- tion and due proof thereof, suspend him from his oflice ; and hefore entering upon the execution of his office, must take the following oath, besides the oaths of allegiance, supremacy and abjuration, (a) I, A. B., do swear that I have not, nor 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 indirectly, u any persons whomsoever, for such nomination and appointment. So help mc God. Duties of his office. {Dickenson.) The clerk of the peace, by himself, or his sufficient deputy, must be in constant attendance on the court of quarter ses- sions. He gives notice of its being holden or adjourned ; issues its processes ; records its proceedings, and does all the ministerial acts necessary to give effect to its decisions. It is his duty when prosecutors do not choose to seek pro- fessional assistance, to draw bills of indictment. , In the actual course of the sessions it is his duty to read the acts directed to bo read 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 administer all oaths, and make true entries of all proceedings. By an ancient statute, he is bound to cer- tify to the Court of King's Bench the names of such as shall be outlawed, attainted, or convicted of felony ; and if he shall discharge or conceal any fine or forfeiture, unless bv 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 re- venue. — 22, 23, Car. II., 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 exe- cute the office of clerk of the peace, or deputy, on pain of ^50.-2 a. IL, c. 46, § 4. ITis duties hy Provincial Statute. Convictions. — By statute * 40, G. II! certificates gratis from the records o pardon granted ; and by statute 4 & c , § 6, to gra " y convictior ,c. 12, § 4, to (a) But see 13 & 14 V., c. 18, which regulates the form of oath to be taken bjr public officers. publish reti first adjoun public newaj such returns his office. § quarter sessii copy of all 81 Records in c. 92. Seir and claims once ii some conspici same to be pi the general q to the grand ji Census Act, returns of "Bj office under th Statistics on oi furnish triplica justices, at such Jurors' Act, 1 (as amended by j § 19. (a) To bri^ sions next after man, the jurors' To proceed (witl act, for grand \\ jurors of inferior deposited with tj correct copies ofi clerks of the crol the county or unif been so preparec To be present \ Mode of proceel sheriff's list the f of fines and forf. estreated and leviJ guilty of derelicti] 23, liable to .£50 [ Marriages cJ (a\ Amended bv 14] {*) Amended bjr sai YX ^."nended by san W Repealed bj 16 CUtK Of ttie ]|race. 151 publish returns of convictions within seven days after the first adjournment of the general quarter sessions, in one public newspaper of the district, and fix up a schedule of such returns in the court-house, and a conspicuous place in his office. § 5. Within twenty days after the end of each quarter sessions, to transmit to the inspector-general a true copy of all such returns within his district. Records in Criminal ca»e», how to he drawn up. — 18 V., C.92. Heir and Devisee Act, 8 V., c. 8, § 6, to make list of claims once in every three months, and affix the same in some conspicuous part of the court-house, and cause the same to be publicly read and proclaimed in open court at the general quarter sessions, immediately after the charge to the grand jury, and give certificates thereof. Census Act, 10 & 11 V., c. 14, § 14. § 18. To forward returns of "Births, deaths and marriages," as filed in his office under the statute, to the Board of Registration and Statistics on or before the 1st January, yearly. § 20. To furnish triplicate lists of convictions at sessions, or before justices, at such periods as the board shall appoint. Jurors' Acty 13 & 14 V., c. 55, § 16, to prepare jurors' books (as amended by 14 & 15 V., e. 65.) § 18. To prepare ballots. § 19. (a) To bring into court (annually on the first day of ses- sions next after the first of October,) and deliver to the chair- man, the jurors' books and ballots, verified by oath. § 20. (6) To proceed (with the chairman) to ballot as directed by the act, for grand jurors of superior courts. § 21. For grand jurors of inferior courts. § 22. Jury lists to be certified and deposited with the clerk of the peace. § 23. (c) To deposit correct copies of jurors' books in the office of each of the clerks of the crown and pleas, and in that of the deputy for the county or union of counties, for which the same shall have been so prepared, on or before the 31st December. § 25. To be present on the drafting of jury panels. § 27. {d) Mode of proceeding thereat. § 65. To copy from the sheriff 's list the fines from jurors making default, on the roll of fines and forfeitures imposed at quarter sessions, to be estreated and levied accordingly. § 73. Clerks of the peace guilty of dereliction of duty, under § 18, 19, 20, 21, 22 and 23, liable to X50 penalty. Marriages. — Certificates of license for celebration of, to [a\ Amended by 14 & 15 V., c. 65, and time extended to 31st October. lb) Amended by same act. (e) Amended by same act, and repealed as amended by 16 V., c. 120. '■» ) : h\ i-r \ A W ■IH 162 eutit of m 3leace* 1^' I !...♦ ■'. P ,. WW ... ^. I'!- be published.— *38 Geo. III., c. 4, § 3. Annual returns to be made to clerk of the peace.— *11 Geo. IV., c. 36. But not while the census act 10 & 11 V., c. 14, § 2, remains in force. Forfeited estates. — Duplicate returns to be transmittted to the clerk of the peace. — *59 Greo. III., c. 12, § 6. Insane destitute. — Account of moneys neceesary for the support of, in the Home District, to be laid before the grand jury. — *11 G. IV., c. 20, § 1., extended to all the districts by * 3 W. IV., c. 45. Illegitimate children. — Affidavit by the mother to be filed in the office of the clerk of the pcjoce.— *7 Wm. IV., c. 8, § 4. Fines and forfeited recognizances. — * 7 Wm. IV., c. 10. To be entered on a roll within 21 days after adjournment of the quarter sessions. Such roll to be made in duplicate, and signed by the clerk of the peace. — § 3. One to be deposited in the office of the clerk of the peace, and the other sent to the sheriff, with writs of fieri facias and capias as per forms in schedule B. — § 4. Affidavit to be made by the clerk of the peace at the foot of each roll. — § 7. Writs to be returned by the sheriff and filed by the clerk of the peace, and copy sent *o the Receiver-General. — § H. 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 rotulorum, or keeper of the records of the county. County accounts * 7 Wm. IV., c. 18. Accounts to be delivered to the clerk of the peace, before the first day of the general quarter sessions. — § 1. No accounts to be audited unless seven justices present.— §2. Accounts to be taken into consideration on the second day of the sessions. — lb. Clerks of the peace to furnish the county treasurer Avitli lists of orders for payment in their priority. — § 3. The treasurer to furnish a balance sheet on the first day of each session for the preceding quarter. — lb. Orders made not to be rescinded, except by an equal num- ber of justices. — § 4. No order to be made unless there be funds to meet the same, except where debts actually due. — § 5. Lunatic asylum, (private,) 14 & 15 v., c. 84, certain duties to be performed under this act by clerks of the peace. See the teveral aeia cited. Sessions Fees ti Drawing the the same Attending eat Making up th Notice of evei Making up es same to t] Every recogni For dischargin Subpcena Bench warrant Drawing indict Allowance of c( § 2. This ac other fees as i services. Other Fees to I For each certific *50G. III., For- each certiti /emnies covet For certificates t authorise th For certifying nc 8 Vic, c. 8, Fees to be taken hy See the printi FEES See ^^Jurors' La Fori I, G. G., clerk do hereby make, city of Toronto, ir lawful deputy, in county, so Jong as tinuance of my wiF 'l»'s day o\ 20 eietK of tlt^ 9tuu\ 153 Sessions Fees due to the Clerk of the Peace, and to be paid out of the County Funds. * 47 G. III., c. 11. £ s. d. Drawing the precept, and attending justices to sign the same, and transmitting it to the sheriff 1 Attending each Quarter Sessions 1 10 Making up the records of each sessions 2 10 Notice of every appointment 10 Making up estreats of each session, and transmitting same to the Inspector-General 5 To be paid by the parties. £ s. Every recognizance for the peace or good behaviour 2 For discharging the same 2 Subpoena 2 Bench warrant 5 Drawing indictment 10 Allowance of certiorari 5 d. 6 6 5 5 5 2 6 § 2. This act not to deprive the clerk of the peace ( !' such other fees as are allowed by act of parliament for other services. Other Fees to be taken by the Clerk of the Peace, by Statute. £ s. d. For each certificate of Dower, *37 G. III., c. 7, § 2; *50G. III., c. 10, §2 For" each certificate of alienation of real estate, by femmes covert, *2 G. IV., c. 14, § 2 For certificates to ministers of Church ol Scotland, to authorise their marrying, '38 G. III., c. 4, § 2... For certifying notices under the heir and devisee act, 8Vic., c. 8, §6 Fees to be taken by the Clerk o/ the Peace, established by the Judges, under 8 V., c. 38. See the printed " Tariff of Fees" published in 1849. FEES ON BALLOTING JURIES, &c. See *^ Jurors' Laio Amendment Act" 19, 20 V., c. 92, 1856. Form of the appointment of a- Deputy. I, G. G., clerk of the peace in and for the county of York, do hereby make, substitute and appoint J. H. S. D., of the city of Toronto, in the said county, gentleman, my true and lawful deputy, in the office of clerk of the peace for the said county, so long as I shall hold the same, and during the co;i- tinuance of my will and pleasure. Witness my hand and seal, this day of 18 . 20 _^i&._ :1.:::-li!::.^ If •li^ ^ hi" ■ tj I- ■'■! i' i t V 1 i ■: il) IP: '"III '^^ ■ mm 154 igroCn^ CLERKS AND SERVANTS. Stealing by, see ^^Embezzlement." COALS.— CHARCOAL.— WOOD. Maliciously setting fire to any, declared felony by 4 & 5 v., c. 26, § 17.— See also ''Anon." COIN. By 4 & 5 v., c. 17, § 1, no copper or brass coin, or token of any description, except the lawful copper coin of the United Kingdom of Great Britain and Ireland, shall be imported into this province ; nor shall any be manufactured therein, except under the authority of the Governor to some person or persons, body politic or corporate, to import or manufacture the same. § 2. No such permission to be granted, unless such coin or tokens be stamped with the nominal value thereof, and with the name of the issuers, and such coins shall be payable or redeemable on demand, by such issuers, at the nominal value thereof, in lawful cur- rent coin. § 3. Coins or tokens imported or manufactured contrary to this act shall be forfeited to her Majesty, and the manufacturer or importer incur a penalty not exceeding £5 currency for every pound troy weight thereof; and it shall be lawful for any two or more justices of the peace, on the oath of any credible person, that any such coin or tokens have been so unlawfully manufactured or imported as afore- said, to cause the same to be seized and detained, and to summon the party in possession of the same to appear before him^ and if it shall appear to hu satisfaction, on the oath of any credible witness oiher than the informer that such coin or tokens have been manufactured or imported in contraven- tion of this act, buch justices shall declare the same forfeited, and shall place the same in safe keeping, to await the dis- posal of the Governor, for the use of the province ; and if it shall appear to the satisfaction of such justices, that the pos- sessor of such coin or tokens knew the same to have been so illegally manufactured or imported, he may condemn such person or persons to pay the penalty aforesaid, with costs, and may commit him, her, or them, or any of them, to the common gaol of the district, for a period not exceeding two months, until paid. § 4. If it shall appear to the satisfac- tion of such justices, that the possessors were not aware of the same having been illegally manufactured or imported, such penalty may be recovered by any person from the owners, who shall sue for the same in any court of compe- tent jurisc than the customs m to be impo forfeited, l of the prov from this a ment, any of the Unit tered banks treal, hereti rity of the e Canada, or have been provin-^ a( penal ; of th to be r cove oath of any before any forthwith pa' the district i paid. §8. C (but not the c the other moi( § 11- Certain as this act sha , %12V.,< iaw touching any person sh made or countc intended to res gold or silver c declared to be shall be guilty hablo to imprisj four years; ar guilty of felon 5 2. Variation \ ful coin describ not be a ground % 20 V, c. over with gold o :■ »;:11 4 m V ■( 'I: p 1 ' I r' H \M 166 eowmitmtnu IK r M li of such prince or state, although not current by law in this province, or who shall make or cause to be made, or buy, sell or procure, or knowingly bring or iinport into this pro- vince any forged, false or counterfeit coin, resembling any such foreign gold or silver coin as aforesaid, or any coin of coarse gold or silver, or base metal coloured or cased over with gold or silver, or with any wash or materials producing the colour of gold or silver, and resembling any such foreign gold or silver coins as aforesaid, or who shall offer, utter, tender or put off as being any such foreign gold or silver coin as aforesaid, any forged, false or counterfeit piece or coin counterfeited to, and resembling any such foreign gold or silver coin as aforesaid, knowing the same to be forged, false or counterfeit, shall for the first offence be guilty of a misdemeanor, and for any subsequent offence, felony. § 2. Any person who shall form, cast, make, sink, stamp or engrave, repair or amend any die press, mould, matrix, tool, instru- ment or machine, metal or material of any kind used or designed for the purpose of counterfeiting any such foreign gold or silver coin, shall for the first offence be guilty of misdemeanor, and for any subsequent offence, felony. § 3. Any person who shall knowingly (except for some lawful purpose) have in his possession any such forged, false or counterfeited piece or coin, or any die press or other articles as aforesaid, shall for the first offence be guilty of a misde- meanor, and for any subsequent offence, felony. § 4. Any person convicted of misdemeanor under this act shall be imprisoned in the common gaol, with or without hard labour, for any terra under two years ; or in the penitentiary for any term not less than two nor more than seven years ; and upon conviction for a subsequent offence shall be deemed guilty of felony, and imprisoned in the penitentiary for any term not less than two nor more than fourteen years, in the discretion of the court. — See also title " Currency. " 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 empowered 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 person be brought before a justice, expressly charged with felony upon oath, the iustice cannot discharge hit but if he bee be no felony charged as fe justice may di though it maj properly fdor of justice in e: yet thejustic dergo his trial 2 H. H. 221. See also fm Offences.*' A married ( witness upon ai ties for her anr if they refuse t( they may be cob one years of agi sureties. A jus person to prison Ireland, in orde tried there R, same principle a to gaol in this committed in En Where contem justice of the pea presence, it seen] tempt.— ij!. I,. ^ Taunton, 63. By Stat, o H. the common gaol, c. 19, vagrants a' charged with sm: want of sureties, house of correctio by Stat. 10 & 11 oath with any crir or detained by "Lock-up-house, exceeding two dayi for trial. See als( If a man commi the same in anothe commftment. 157 discharge him, but must bail or commit him — 2 H. 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 felony), or in making an assault upon a minister of justice in exec .tion of his office (which is not at all felony), yet the justic ought not to discharge him, for he must un- dergo his trial for it, and therefore he must be committed. — 2 H. H. 221. See also further on this subject under title "Indictable Offences" A married w^oman may be committed, who is a material witness upon any charge of felony, if she refuses to find sure- ties for her appearance at the sessions. — Bennett v. Watson, Z M. ^ S. 1. 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 twenty- one years of ago, as well as married women, are liable to find sureties. A justice of the peace in England may Gommit a person to prison in England, for an offence committed in Ireland, in order that the offender may be sent over and tried there. — R. v. Kimherley^ Sir. 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 presence, it seems that he may commit the party for a con- tempt. — R. V. Ravel, 2 Salk. 240; Mayhew v. Locke, 7 Taunton, 63. By stat. 5 H. IV., c. 10, all felons shall be committed to the common gaol, and not elsewhere ; but by statute 6 G., c. 19, vagrants and other criminals, offenders, and persons charged with small oflfonces, 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. And by stat. 10 & 11 V., c. 41, § 5, any person charged upon oath with any criminal offence may be temporarily confined or detained by the written order of any justice in the "Lock-up-house," in any township, town or village, (not exceeding two days,) until he can be examined and committed for trial. See also post title "Lock-up-honses." If a man commit felony in one county, and be arrested for the same in another county, he may be committed to gaol in 11 1 iSnlP Hi I tSMBwly Ml y^^SBit It H^^H ^HH ^^wK 1 ..;. , ■.""; |twKB8i j^'MIIHaHfi^HB ■•■ 'mam 1*1W«I' i 168 mtomtniimtnu !;« ; N f1 '■'♦r- !■■ ! itmn that county where he is taken. — Dalt. c. 170. And if he escape and is taken on fresh suit in an another county, he may be carried back to the county where he was first taken. — Dalt. c. 170. Also, by stat. 24 G. XL, c. 55, if a person is apprehended upon a warrant, endorsed 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 com- mitted (or if bailable, bailed) by the justices in such first county. By 12 V. c. 10, § 5, art. 21, if in any act a party be directed to be imprisoned, or committed to prison, such im- prisoiiment or committal shall, if no other place be mentioned, be to the common gaol of the locality in which the order of cemmitment shall be made, or if none there, then in or to the common gaol which shall be nearest to such locality. Form of the CommitrnenU 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 oflSce or author- ity, and must be directed to the goaler or keeper of the prison. — 2 Haw. 19. It should contain the name and sur- name of the party committed, if known — if not known, then it may be sufficient to describe the person by his age, stature, complexion, colour of his hair, and the like — and to add that he refuseih to tell his name. — H. H. 577. It should set forth that the party is charged upon oath. — 2 Haw. 120. It ought to contain the cause — as, for treason, or felony, or suspicion thereof — otherwise the prisoner would not only be entitled to his discharge, under the habeas corpus act, but if no cause be expressed, and the prisoner escape, neither him- self nor the gaoler would be punishable for the escape ; whereas if the commitment contained the cause of imprison- ment, 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^ 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 corpus, whether the cause assigned for the commitment was a legal one or not ; therefore if the com- mitment be for felony, the warrant ought not to state gener- ally /or /<;/owy, but it should state the special nature of the felony — as felony for 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 fective, yet of detainer, issuing of a I But where th( it is essential mitment ii n ment therefor disobeying his tainty.— ^. ^,. for non-paymc warrant of cor A commitme been convicted that he was chs V. Cooper, 6 T. distinctly expre be for a time ce the defendant o how he may re* for a fine, it oug to punish him I imprisonment f( his fine. By Stat. 17 G, mitted by anyju tjon, by virtue o limit the time an commit the offen general or quarti of law; but two j be one) may disc see cause; or tl custody not excee. without this the ci ^(i false imprison or breach of pris, 383. But this m sessions, or other or the memorial ofrecord, isasu seal.— 1 H. H, 5, at which it was mj certain date of th ^ommitmtnt 159 Although the form of a commitment for trial may be de- fective, yet the committing magistrate may issue a warrant of detainer^ remedying the defect, and this, even after the issuing of a habeas corpus. — R. v. Gordon, 1 B. ^ A. 572. But where the commitment is final and by way o^ punishment^ it is essentially necessary that the offence (for which the com- mitment IT made) be described with certainty. A commit- ment therefore of a person, as an apprentice or servant, for disobeying his indentures or articles, was held bad for uncer- tainty. — It. V. Everett, Cold. 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. — Exf. Addis, IB.^O. 90. A commitment in execution must allege 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 ; therefore, 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. II., c. 5, § 32, where any offender is com- mitted by any justice out of sessions, to the house of correc- tion, 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 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. — H. H. 383. But this must not be intended of a commitment by the sessions, 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 suflScient warrant, without any warrant under seal. — 1 H. H. 584. It should have also set forth the place at which it was made. — 2 Haw. 119 ; and it must have a certain date of the year and day. — 2 H. H. 123. •i y} •! ^; : 'tJ li. \>. 160 eommunfetit ''1 : *;.:■!.' I , l,.n a.. ,■ i:ft; ?^^T Charges of the Commitme^ u. As to the immediate charges of the commitment, and the conveyance of the offender to the gaol, it is provided by Btat. 3 Jac. I., c. 10, § 1, that every person who shall be com- mitted to gaol by any justice of the peace, for any offence, if he has means or ability thereto, shall bear his own reasonable charges of his conveyance to gaol ; and the charges of such as shall be appointed to guard him thither, and in default of payment, the same may be levied by distress on his goods and chattels, if he sliall have any in the county ; and by statute 27 Geo. II., c. 3, if the offender has not suflScient effects to bear these charges, then a magistrate shall, upon examination on oath, make an order on the treasurer of the county to pay the same. Gaoler shall receive the Prisoner. If the gaoler shall refuse to receive a felon, or take any thing for receiving him, he shall be punished for the same, by the justices of gaol delivery. — 4 Ed. III. c. 10; Dalt. c. 170. But if a man be committed for felony, and the gaoler will not receive him, the constable must bring him back to the town where he was taken, and that town shall be charged with the keeping of him, until the next gaol delivery ; or the person that arrested him may, in such case, keep the prisoner in his own house. — Bait. c. 170. But in other cases, it seoms that no one can justify the detention of a prisoner in custody out of the common gaol, unless there be some particular reason for so doing ; as, if the party be so dangerously sick- that it would apparently hazard his life to send him to the gaol, or there be evident danger of a rescue^ or the like.— 2 Haiv. 118. By statute 3 Hen. VI., c. 3, the sheriff or gaoler shall certify the commitments to the next gaol delivery. Commitment — how it may he Discharged It seems that a person legally committed for a crime cer- tain cannot (unless under the Habeas Corpus Act) be lawfully discharged by any one but the king, till ho be acquitted oii 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 indictment, for a supposed crime, when afterwards it appears that there was none ; as, for the murder of af person thought to be dead, who after- wards is found to be alive ; it hath been holden that he may be safely dij 121. fhis though a poi from the in indicted for bodily harm, any gaoler si without an oi A commitr commitment i 11 ; Mod. 45 the Vagrant j whom the coi the prisoner b When the cor follows of coi liberty om pay ^or th. acve Ofenees—Sun By 18 .t 14 : 12 v., c. 83, ar to be held in vi Upper Canada, hour of 10 in th section is to bo sumo individual Jui-ing the four Mode of call i IK I ^ •>. At the first elect a chairman have a casting V( two electors a p trustees arc to bo succession as pro section meeting t 1- Elect a chi decide upon the \ clause of the twe nioi-e persons as such section to deride respecting § 7. Voters at 21 eommon Sctioolsf. lei 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 have recovered from the injuries he received, yet the offender may still be indicted for an attempt to murder, or do the party some bodily harm, in which cases it would be highly improper that any gaoler should take upon himself to discharge the prisoner, without an order from a magistrate. A commitment after a conviction, for a time certain, is a commitment in execution, and does not admit of bail. — Anon. 11 ; Mod. 45. But, on a commitment to the sessions, under the Vagrant Act, 17 Geo. II., c. 5, § 32, two magistrates (of whom the committing magistrate was one) might discharge the prisoner before the sessions. — R. v. Rhodes, 4 T. R. 220. When the commitment is till payment of a fine certain, it follows of course, that the party n entitled to be set at liberty on payment of it. — Dalt. c. 170, § 12. For the acveral forma of " ComfnttmentSf" See ^^ Indictable Offences — Summary Vomnction." COMMON SCHOOLS. (■om)iio)i School Act : 1850. By lo (jc 14 v., c. 48, § 1— former acts 7 V., c. 29, and 12 v., c. 83, are repealed. § 2. Annual school meetings are to be held in villages, towns, cities and townships throughout Upper Canada, on the second Wednesday in January, at the hour of 10 in the forenoon. § 3. One trustee in each school section is to be elected at each annual school meeting : the same individual may be re-elected (with his own consent) during the four next years after going out of office. § 4. Mode of calliny the first school meeting in a new section. § ,'). At the first school section meeting, the majority are to elect a chairman and appoint a secretary : the chairman to have a casting vote, but no other vote : at the request of any two electors a poll is to be granted : at such meeting three trustees arc to be elected for such section, who are to retire in succession as provided. § (5. At the township annual school section meeting the majority present are to — 1. Elect a chairman and secretary. 2. To receive and decide upon the report of the trustees under the eighteenth clause of the twelfth section of this act. 3. To elect one or more persons as trustees, to fill up vacancies : no teacher in such section to hold the office of school trustee. 4. To decide respecting the salary and expenses of the schools. ^ 7. Voters at such meetings on being required shall make 21 162 eomttion St!iooi0. i;,l ■H^-i p m s: ill Iff'-" "," ti' i'-' ' ■"' •ft -fld|;f WW U , ■■ - ^^ ■ ' - it • 9i 1 a declaration of their qualification in the form prescribed : any false declaration is to be a misdcmmnor punishable by fine or imprisonment, at the discretion of the quarter sessions, or by a penalty of not less than 25s., nor more than 60s., to be recovered by the school trustees before any justice of the peace within such section. § 8. Any trustee refusing to serve shall forfeit 25s., and after election and not refusing to accept, refusing or neglecting duty, shall forfeit .£5, to be recovered as above: trustees may resign with consent of colleagues and local superintendent. § 9. The proper per- son neglecting to call annual school meeting to forfeit 25s., and any two freeholders may, within twenty day% after, call such meeting b^ giving six days' notice. § 10. Trustees of each school section to be a corporation — not to cease for want of trustees, but in such case any two freeholders may, on giving six days' notice, call a meeting, which shall elect three trustees, as prescribed by the 5th section, such trustees retiring in succession. § 11. Site of the school-house to bo fixed by arbitration, in case of difference. § 12. Duties of the Trustees. — 1. To appoint a secretary- treasurer, for certain duties, as prescribed. 2. A collector of school rates ; his remuneration not to be less than five, nor more than ten per cent, on collection. 8. To take and keep possession of all the common school property. 4. To provide school premises and accommodation. 4. To employ teachers and fix their salaries, and establish both male and female schools, if they think proper. G. To give orders to teachers for school moneys, but to none but qualified teachers. 7. To provide for the salaries of teachers and the expenses of the schools, as desired by a majority of school electors at ,i special meeting, and to employ all lawful means for collect- ing the same; and to make additional rates, if necessary, to make up any deficiency. 8. To make out a rate list and warrant for collection, payable monthly, quarterly, hnlf- yearly or yearly, as they may think expedient. {♦. To apply to the municipality of the township, or employ their own authority for raising and collecting school moneys bv rate according to valuation on the assessor's or collector's roll. 10. To exempt indigent jK'rsons. 11. To sue de- faulters. 12. To cause notices to be posted, and fix the place of annual school meeting, and to call special meetings for filling up vacancies. 13. To permit residents in such section. between the ages of five and twenty-one, to attend the school, upon their complying with rules and paying fees. 14. To visit the school and see that it is conducted according to law. 15. To provide proper and prohibit improper books for the eotnition Sei|ool0. 163 school. 16. To exercise corporate powers for the fulfilment of any contract. 1 7. To appoint a librarian and establish a school library. 18. To ascertain the number of resident children between the ages of five and twenty-one in their section, on the 31st day of December, yearly ; and to prepare and read their annual school report at the annual section meeting, including receipts and expenditures, such accounts to be audited if required. 19. To prepare and transmit before the 15th January the annual school report to the local superintendent. Contents of Report. 1. Time of keeping school open. 2. Amount of moneys received, from what sources and how expended. 3. Number of resident children of school age ; attendance of pupils in winter and summer. 4. Branches of education taught, text books used, number of public examinations, lectures and visits, and other information respecting school premises and library. § 13. Any trustee knowingly signing a false report, or teacher keeping a false school register, or making a false re- turn, with the view of obtaining a larger proportion of school moneys, shall forfeit to the school fund £5, upon conviction before any justice of the peace, on the oath of any one credible witness, to be levied with costs, by distress and sale of the goods of the offender, under warrant of such justice ; or said offender shall be liable to be tried and punished for misdemeanor. § 14. Foreign books not to be used without the express permission of the council of public instruction : religious books prohibited, if objected to by parents or guardians. Common School Teachers and their Duties. § 15. School teachers to be qualified by certificate. §16. Teachers' Duties: 1. To teach diligently all the brandies required accord- ing to engagement, and the provisions of this act. 2. To keep school registers — to maintain order and discipline — to keep a visitors' book, and soHcit visitors' remarks. 3. To have a public examination at the end of each quarter, giving due notice thereof to parents and guardians, and the trustees and school visitors in tiie neighbourhood. 4. To furnish, when desired, information respecting the school to local or chief superintendent. 5. On leaving school to deliver to the trustees order the registers and visitors' books. § 17. The teacher to be paid at the same rate after the 164 Common Seftoolioi. hi'. i!'i' ,: 'W-:\-: period of his engagement, until the trustees shall have paid his whole salary : in case of any difference between the trus- tees and a teacher, in regard to salary, the same to be settled by arbitrators, as provided (a). Duties of Township Councils. § 18. Their duties to be : 1. To levy assessments for common school purposes as desired by trustees ; with power if deemed expedient, to grant to trustees authority to borrow money for school purposes, and cause to be levied assessment sufficient to pay principal and interest in ten years. 2- To levy a sufficient sum for the site, erection and support of a township model school and library. Members of the township councils to be trustees of such model schools ; and common schools may, with consent of trustees and council, be merged into such model school ; tuition therein to student teachers to be free. 3. To form new school sections where none before established. 4. To unite school sections under certain conditions: any such alteration not to take effect before the 'Ihih. of December afterwards : all parties concerned to be previously notified of such intended alteration. Union school sections of parts of two or more townships may bo formed by the reeves and local superintendents at a meeting appointed by any two of such reeves : other parties to be duly notified : each union school section to be deemed one school section, and in respect to superintendence and taxing for the school house, as be- longing to the township where the school house is situated. 5. Township clerks to furnish the local superintendent with •A copy of the proceedings of such couhfiil relative to tho formation or alteration of school sections. § 1 9. Township council or board of trustees, on the appli- cation of twelve or more resident heads of families, to estab- lish separate schools for Protestants, Roman Catholics {h\ or coloured people : coloured people only allowed to vote for the election of trustees of the separate school for their children ; and petitioners only for a separate Protestant or Roman Catholic school to vote at the election of trustees of such school : school moneys to bo apportioned according to the average attendance of pupils. § 20. All the school sec- tions in a township may, at the request of a majority of resi- dent householders of the several school sections, by a by-law of the township, be conducted under one system, and one a) The last proviso of this section is repealed by 16 V., c. 185, s, 15. b) Repealed as ta Romaa Catholics by ISV., c. 121,fl. 1. management managed by for each war whole chosen with the sam( of this act. Councils ant § 21. The corporated to\ subject to the of each counts of this act ; p^ tendents for su tees for the sai ward of cities i tants — to retire On the second ' son to be electc office for two ye incorporated un feesof the city ( Duties of such 11 1' To appoint superintendent school rates, an ^^- -. lo ma school moneys, and libraries. , schools, teacher.' remuneration an and to adopt me grammar school, mitteeofnotmor sight of each schc councils of the ! other school pur rates upon the the same means u the 12th section ment of teachers berlain or treas annual and specif prescribed in the the pupils are su Common Sbcliool0. 165 management, like the schools iu cities and towns, and be managed by one board of trustees — one to be chosen in and for each ward, if township divided into wards, otherwise the whole chosen in and for the whole township, and invested with the same powers, kc.y as mentioned in the 24th section of this act. Councils and Truateett in CitieSj TownSj Incorporated Villages, and their Duties. § 21. The council, or common council of such city or in- corporated town shall be invested within its limits, and be subject to the same obligations, as are the municipal council of each county and township by tho 18th and 27th sections of this act : provided that the appointment of local superin- tendents for such city or town be made by the board of trus- tees for the same. § 22. Two trustees to be elected in each ward of cities and towns by a majority of the taxable inhabi- tants — to retire in succession annually, as provided. § 23. On the second Wednesday in January each year one fit per- son to be elected trustee in each ward, and to continue in office for two years. § 24. The board of school trustees to be incorporated under the name of The Board of School Trus- tees of the city {or toion) of , in the aounty of Duties of such board to be : 1. To appoint annually, or oftener, a chairman, secretary, superintendent of schools, and one or more collectors of school rates, and to appoint times and places of meetings, &c. 2. To manage and dispose of school property and school moneys. 8. To provide for school premises, books and libraries. 4. To determine the sites and number of schools, teachers to be employed, the terms, and amount of remuneration and duties, superintendent's salary and duties, and to adopt measures for uniting common schools with the grammar school. 5. To appoint annually or oftener a com- mittee of not more than three persons, for the chai'ge and over- sight of each school. 6. To lay estimates before the municipal councils of the sums required for the teachers' salaries and other school purposes. 7. To levy at their discretion any rates upon the parents or guardians of pupils and by the same means as trustees of common schools may do under the 12th section of this act. 8. To gives orders for pay- ment of teachers and other school officers, upon the cham- berlain or treasurer of such city or town. 9. To call annual and special meetings of the taxable inhabitants, as prescribed in the 12th section of this act. 10. To see that the pupils are supplied with authorised text books, and to i '^4 vi r^ m I It 1:1? ill % «v; 186 eomtnon St^ttvis. mm-' if • m > II appoint a librarian. 11. To see that the schools are con- ducted according to law, and to publish an annual report in one or more papers of their proceedings, and the progress and state of the schools, receipts and expenditures of school moneys ; and to transmit report annually, before the 15tli January, to the chief superintendent, as required by the 12tlj section of this act. § 25. Village municipalities to exercise all such powers as are conferred by this act upon city corporations : provided, that on the second Wednesday in January, 1851, a meeting shall be held in ea^h such incorporated village, to be organ- ized and conducted in the same manner as prescribed by tiie 23rd section of this act, for the election of six fit antl proper persons, resident freeholders or householders, u. school trustees, to be divided into three classes, numbered 1, 2, 3 — the first class to hold office one year, the second two years, the third three years — such trustees retiring to hv eligible for re-election : provided, secondly, that there be aii annual school meeting in such incorporated village, for the election of two trustees in the place of those retiring. The first meeting to be called by the town-reeve, giving six days' notice thereof. § 26. The trustees elected under the pre- ceding section to succeed to all the powers and liabilities of the present trustees, and to be incorporated under the title of " The Board of School Trustees of the incorporated village of , in the county of , and to possess all tlie powers so conferred by the 24th section of this act upon the trustees of cities and towns. Duties of County Municipal Council. § 27. The duties of such council shall be : 1. To raise by assessment upon the several townships sucli amount, for the payment of common school teachers' sala- ries as shall be equal to the school money apportioned to the several townships by the chief superintendent ; to be in creased at the discretion of such council, for the purpase> stated : assessments to be collected and paid to the counn trcasuvor on or ])efore the 14th of December ; and in case of non-payment, the teacher may be paid by order of the superintendent on the county trv^asurcr, in anticipation of such county school assessment ; and the county shall make provision accordingl}'. 2. To raise money for the establish- ment md maintenance of a county common school library. 3. To appoint annually a local superintendent for the whole county, or for any one or more townships : to fix withiu the limits of the 30th ^;ection of this act, and provide for super intendent's the oversigl notify chiei superintend of proceedir see that suffi school mone fund by the* school mone one or more obligations as •^. To appoin thereon to th( transmitted a 1st day of Ui Constitution ^ 28. Trustc superintendent- '■^•n- It more then such cour grammar school school and loca shall be a boar 'ess than three . i'l^'andgrantinr if^t less than fit fvpcnscs to be i .^-'f>. Duties^ ^- To nicot Mfirnino and gi| arran^^n'ng then? menisandabiliti ^itisfactoryprool 'orn or naturali,^ ™-o ii justice , mn-nt) text hoo, promote the esta ^Uff'rg o1 ^ y<'. Kaeh t,| >t'liooi uiujor his ••'Howance; to be iJ '^1. Local super iromnion Stfioolfii^ 167 intendent's salaries : no such local supe? intendent to have the oversight of more than two schools ; the county clerk to notify chief superintendent* of the appointment of local superintendent, and county treasurer, and to furnish copies of proceedings in council relative to school matters. 4. To see that sufficient security be given by officers entrusted with school moneys : that no deduction be made from the school fund by the county treasurer for the receipt and payment of school moneys: to appoint sub-treasurers (if expedient) for one or more townships, who shall be subject to the same obligations as by this act imposed upon the county treasurer. 5. To appoint auditors of school accounts, who are to report thereon to the council ; and an abstract of such report to be transmitted annually by the county clerk, on or before the Ist day of March, to the chief superintendent. Constitutio7i and Duties of the Counts/ Boards of Public Instruction. § 28. Trustees of the county grammar school and local superintendents to constitute a county board of public instruc- t'on. If more than one grammar school in 6uch county, then such county to be divided into as many circuits as p-ammar schools ; and the trustees of each county grammar school and local superintendents of schools in each circuit shall be a board of public instruction for such circuit ; not less than tJtree members to constitute a quorum for examin- ing and granting certificates to common school teachers ; and not less i\\z,\\fivc to be a quorum for other business. Board pxponses to be provided for by the county council. ^ 2f>, Duties of the county board of instruction : 1, To nu'i't not loss than four times a year. 2. To examine and give certificates to common school teachers, ;irriin,j;ing them into three classes, accoi'ding to their attain- raenls :inil abilities ; to annul certificates : oivohers to furnish sitisfactory proof of good moral character, aiul to be natural horn or naturalised subjects, and take the oath of alli'giance h"fi»ro ii justice uf the |)oaci'. '5. To select (if doomed ex- podiout) text hooks for tlu' oounty or circuit schools. 4. To pi'ouiote the establishment of libraries. Duties of Local Superintendents of iSe/icoh. ^ o((. Each entitled to not less than £1 currency per >cliool under his charge, together with any additional county allowance ; to be paid (juarterly by the county treasurer. § 81. Local superintendent's duties to be — il ftlllflll'l .. i m 168 eommon Scj^oolis. U: i^": 1. To apportion the common school fund among the several sections according to the ratio of attendance, unless otherAvise directed. 2. To give to qualified teachers, and no others, on the order of the trustees, a cheque on the county trea- surer, for any money apportioned and due to such section ; such orderh not to be paid unless a satisfactory report shall have been received from such section for the year ending December preceding ; nor unless it shall appear that a school has been kept in such section for at least i'ix months of the year preceding such report ; new school sections excepted. 3. To visit common schools at least once in each quarter, to examine into the state of the school, and give such advice as he shall judge proper. 4. To deliver in each school section a public lecture on practical education once a year, and to stimulate parents and guardians to improve the schools and secure sound education. 5. To see that the schools are con ducted according to law; to prevent the use of unautboris books. G. To attend the meetings of the county board : to meet and confer with the chief superintendent on his offigial visits. 7. To attend arbitrations, and to meet the town reeves, as provided by the 12 & 18 § of this act, and to decide upon any other questions of difference submitted to him; with an appeal from his decision to the chief superintendent. 8. To suspend teacher's certificate when necessary until the next meeting of the county board, who shall dispose of the mattei 9. To act in accordance with regulations and instructions according to law ; to give any information in his power to the chief superintendent respecting school matters ; to fur- nish county auditors when required with the trustees' orders as the authority for his cheques for school moneys ; to de- liver copies of his official correspondence and all school papers in his possession to the order of the council, on retir- ing from ofiice. 10. To prepare and transmit an annual report to the chief superintendent, stating — 1st. The number of schools ani ;i:. 'iW '■ ' ' ! ■ MM 'I X n common school trustees to receive and investigate any com- plaint respecting such election ; also^ empowered on due ex- amination to give any candidate a certificate of qualification as teacher within the limits of his charge, until the next ensuing meeting of the county board of public instruction of which such superintendent is a member : but no such certificate shall be given a second time, or shall be valid if so given. In the event of a local superintendent's resignation, the warden of the county is authorised to appoint a successor until the next m oeting of the council. § 15. Repeals the last proviso of § 17 of the act of 1850, and enacts that the arbitrators shall have power to administer oaths to, and sum- mon witnesses, and enforce the collections of sums awarded by them. § 16. Provision for the assessment of lands situate within the limits of two or more school sections. § 17. Only one school rate to be levied in one year, except for the pur- chase of a school site, or the erection of a school house. Nor shall the 9th clause of § 12 of the act of 1850, be enforced unless the trustees of such school section make application to the council, at or before its meeting in August of such year. The township council authorised to form such part of any union school section as is situated within the limits of its jurisdiction, into a distinct school section, or attach it to others. § 18. The chief superintendent authorised to appor- tion school moneys according to the time schools have been kept open. § 19. "If any person shall wilfully disturb, interrupt, or disquiet any common or other public school by rude or indecent behaviour, or by making a noise within the place where such school is kept or held, or so near thereto as to disturb the order or exercise of such school, such person shall, on conviction thereof, before any justice of the pcaoe. on the oath of one or more credible witnesses, forfeit and pay such a sum of money not exceeding .£5, together with the costs of and attending the conviction, as the said justice shall think fit. Such conviction, and all other convictions before a justice of the peace under this act, or the act of 1850, and the costs thereof to be levied and collected from the offender, who in default of payment, may be imprisoned for any time not exceeding thirty days, unless such fine and costs, and the reasonable expenses of endeavouring to collect the same, shall be sooner paid. ' § 20. Certain certificates hc'retoforc granted of qualifica- tion to teach, given by county or circuit boards confirmed. § 21. Trustees of school sections may be made collectors, § 22. Provision for the collection of arrears of school rates. § 23. Additional legislative school grants to be expended as follows ; — 1. common 8ch< provided tha poor townshi in further si supplying a c corporation, a more than £ journal, and i section 38 of \ ing JC500 per in ten dent in Canadian libra buildings. 4. be applied towj common school oi public instri provided, that contribute to th school, and furi or loss of healtJ exceed £1 lOs. ] § 24. The chief decisions of the superior courts c cipality to prepai sections, &c., on( for the use of th the township clei cipality. depart By 18 v., e. regards Roman C persons not less tl or householders ^ Catholics, may co Meeting the maic ivoraun Catholic* fjotice to the reev school trustees m freeholders or he the establishment sent at the mee such school, and to be delivered *. >, 'J ^S^ointiion S(|iool0* 176 follows : — 1. A sum not less than ^£4000 for the support of common schools, as provided in section 35 of the act of 1850, provided that not more than <£500 be expended in new and poor townships. 2. A sum not exceeding £1000 per annum in further support of the normal and model school, and in supplying a copy of the Journal of Education to each school corporation, and each local superintendent, provided that not more than £450 be expended in the circulation of such journal, and the balance shall be expended as provided in section 38 of the school act of 1850. 3. A sum not exceed- ing jCSOO per annum may be expended by the chief super- intendent in the purchase of books, &c., suitable for a Canadian library and museum to be kept in the normal school buildings. 4. A sum not exceeding £500 per annum shall be applied towards the support of superannuated or worn out common school teachers under the regulation of the council of public instruction, approved by the Governor in council, provided, that no teacher be entitled to share who shall not contribute to the fund at least £1 per annum, while teaching school, and furnish satisfactory proof of inability from age or loss of health to pursue the profession. No allowance to exceed £1 lOs. for each year such teacher shall have taught. § 24. The chief superintendent authorised to appeal from decisions of the division courts in school matters to the superior courts of common law. § 25. Clerk of each muni- cipality to prepare a m<*p thereof in duplicate, shewing school sections, &c., one copy to be furnished to the county clerk for the use of the county council, the other to be retained in the township clerk's office for the use of the township muni- cipality. Separate Schools for Roman Catholics. By 18 v., c. 131, § 1, § 19 of the act of 1850, so far as regards Roman Catholics, is repealed. § 2. Any number of persons not less then fivcy heads of families, being freeholders or householders within any school section, and being Roman Catholics, may convene a public meeting. § 2. At which meeting the majority present (not less than ten) and being Roman Catholics, may elect three trustees. § 3. A notice to the reeve, or chairman of the board of common school trustees may be given by Roman Catholic resident freeholders or householders of the section favourable to the establishment of such separate school, whether pre- sent at the meeting or not, declaring their desire for such school, and designating trustees. § 5. Such notice to bo delivered by one of the trustees so elected. § 6. I II livililRisi; ki 176 eowmon SbttAtf* mi ;i.~; , .^ , [ ■' ' ' ■'1 From the receipt of such notice^ the trustees therein named to be a "body corporate." § 7. Union of several single separate schools provided for. § 8. Trustees under this act empowered to impose and levy school rates for the support of such schools, and to possess the same powers as trustees of other separate^ schools. § 9. Trustees to remain in oflBce until the second Wednesday in January following, on which day annual meetings to be held for the election of trustees. § 10. Children from other sections, being Roman Catholics, may bo admitted. § 11. Trustees may grant certificates to teachers, and dispose of school funds. § 12. Any Roman Catholic supporting a separate school, and giv- ing notice to the clerk of the municipality, on or before the first day of February, shall be exempt from other school rates or school libraries. Any person fraudulently givinff such notice, or making any false statement, to incur a pen- alty of <£10, recoverable with costs before any justice of the peace at the suit of the municipality. § 13. Separate schools established under this act to share in the common school fund in proportion to the number of children attending : provided that the average attendance shall not be less than fifteen. Such separate schools not to be entitled to share in local rates for common schools. And in case such separate school shall not be open the whole year, the apportionment of money to be accordingly. § 14. Trustees required to transmit to the chief superintendent half-yearly returns, on or before the 30th June and 31st December, of the names of children in attendance, and the time the school has been kept open ; and the chief superintendent shall apportion the legislative grant accordingly. § 15. The election of trustees to be void if school not established within two months after election. § 16. Supporters of such schools not to vote at the election of other common school trustees. By 18 v., c. 78, § 13, the superintendents of common schools are required to make an annnual report to the Board of Audit, on or before the 30th January. § 15. Under the penalty of j625. By 18 v., c. 132, § 2, the county judge may try contested elections of school trustees. COMMON SCOLD. A common scold, communis rixatrix, (for our law-Latin, says Blackatone, confines it to the feminine gender,) is a troublesome, angry woman, who by her brawling and wran;^- ling amongst her neighbours, breaks the public peace; increases discord and becomes a public nuisance to the neigh- bourhood; I nuisance, an the tre-buck( €om90unxHnu Jftlons. 177 bourhood : she is, therefore, liable to be indicted as a public nuisance, and, on conviction, to undergo the punishment of the tre-bucket, or ducking-stool. — 4 Bl. Com. 168. COMPOUNDING FELONY. Is a misdemeanor at common law called Theftbote — which 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 felony f and formerly was held to make a man an accessory, but is now punished only with fine and imprisonment.— -4 Bl Com. p. 133, 16 M.; 1 Haw. c. 59, § 5. By 4 & 5 v., c. 25, § 50, every person who shall corruptly take any money or reward, directly or indirectly, under pre- tence of helping any person to any stolen property whatsoever, shall (unless he cause the offender to be apprehended and brought to trial for the same) bo guilty of felony, and, upon conviction, be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for not less than seven years, or to be imprisoned in any other place of confinement for any term not exceeding two years. § 51. If any person shall publicly advertise a reward for the return of any property stolen or lost, and shall in such adver- tisement use any words, purporting that no question will be asked ; or shall make use of any words, in any public adver- tisement, purporting that a reward will be given or paid for any property stolen or lost, without seizing or making any inquiry after the person producing the same, or shall promise or offer, in any such public advertisement, to return to any pawnbroker or other person, who may have bought or ad- vanced money by way of loan upon any property stolen or lost the money so paid or advanced, or any other sum of money or reward for the return of such property ; or if any person shall print or publish any such advertisement, in any of the cases, every such person shall forfeit the sum of £20 for every offence, to any person who will sue for the same by action of debt, to be recovered with full costs of suit. Indictment for Compounding a Felony. — {Archhold.) County of , ) Tho jurors for our lady the Clueen, upon to wit. I their oath present, that heretofore, to wit, on the day of in the yearof the reign of our sovereign lady Victoria, at the township of in the county of , one A. wife of J. N. feloniously htole, 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 lady the Glueen, her crown and dignity. And that the said J. S. late 23 111 11 i II m IMAGE EVALUATION TEST TARGET (MT-3) // ^^ A^^4p. 1.0 iffi^ gy^ ■" 111 miioo I.I 1.25 £ ^ I" 2.0 14 111.6 Photographic Sciences Corporation '^ \\ V ^ ^^^c ^>^^?!^ ^.^ ^ 33 WBT MAIN STRUT WMSTIR.N.Y. MStO (716)I73-4S0J z. ^ 6^^ 178 i^otitiralfttg )$frtfi. N ■ M T^> %\9 IfeMfi;..:, F ' h:'i: f'-'ri of the township aforesaid, in the county aforesaid, labourer, well knowing the said felony to have been by the said A. so as aforesaid done and committed ; but contriving and intending unlawfully and unjustly to prevent the due course of law and justice in that behalf, and to cause and procure the said A. for the felony aforesaid, to escape with impunity; afterwards, to wit, on the day and year 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 shil- lings, for and as a reward for compounding the said felony, and desisting from all fuither 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 afore- said, did therefore desist and from that time hath desisted from all further prosecution of the said A. for the felony aforesaid to ♦he great hindrance of justice, in contempt of our lady the 'Tueen, her crown and dignity. COMPOUNDING OTHER OFFENCES. •ri''-. ■•8 compounding of informations on penal statutes, is a 1 f;.3<;';Jieanor against public justice, by contributing to make ike laws odious to the people. — 4 Bl. 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 in- former, by colour or pretence of process, or without process, upon colour or pretence of any manner of offence against any penal law, make any composition, to take any money or con- sent to the court, he shall stand two hours in th j pillory ; be for ever disabled to sue on any popular or penal statute, and shall forfeit .£10. This severe statute extends even to penal actions, where the whole penalty is given to the prosecutor.— Bl. Com. 136, note (a.) But it does not apply to penalties which are only recoverable by information before justices; and an indictment for making a composition in such a case, was holden bad in arrest of judgment. — Bex v. Crisp and others, 1 B. ^ A. 282. It has been decided that a 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. — Bex v. O-otley, East. T., 180o, Buss. ^ By. 84. CONCEALING BIRTH. By 4 & 5 v., c. 27, § 14, if any wr>man 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 there meaner, a; imprisoned shall not b^ or at its h for the mu; shall be lav quitted, to f was delivere or otherwisi deavour to c inay pass su an indictmei Se^ If a party, it may be gi others — 2 He is no other pr the offence ha consequence o andMy.c.c.i been obtained The admissibi stances— P/ieV must be prov( 263 ; it must b altogether anc 286 ; and such P. 242. Pers fession adjudge — as the only r the crime is do must be in the language of ai Burn, 692. I rated evidence S C( May be ordei ment in certain v., c. 24, §28; ^QtiUnuim* 179 birth thereof, every such offender shall be guilty of a misde- meanor, and being convicted thereof, shall be liable to be imprisoned for any term not exceeding two years ; and it shall not be necessary to prove whether the child died before or at its birth : provided always, that if any woman tried for the murder of her child, shall be acquitted thereof, it shall be lawful for the jury by whose verdict she shall be ac- quitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, en- deavour to conceal the birth thereof ; anr thereupon the court may pass such sentence as if she had \ een convicted upon an indictment for the concealment of the birth. See also post title " Punishment" § 36. CONFESSION. If a party, on examination before a justice, confess a crime, it may be given in evidence against him, but not against others — 2 Hato. c. 46, § 3 ; and it is sufficient, though there is no other proof of his having committed the offence, or of the offence having been committed, if such confession was in consequence of a charge against him — Rex v. Eldridge, Russ. 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 confession must depend upon circum- stances — Pliil. Ev. 104 ; and the identity of the examination must be proved before it can be read in evidence — aS'mw. 263 ; it must be in writing, and not orally, and must be taken altogether and not by parcels. — 2 Haw. c. 46, § 5 ; Leachj 286 : and such examination should not be on oath. — Bull, N. P. 242. Persons confessing themselves, and on that con- fession adjudged guilty of felony, cannot be admitted to bail — as the only reason for admitting to bail in felony, is where the crime is doubtful. — 2 Haw. c. 15. § 40. The confession 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 uncorrobo- rated evidence of his own confession. — Leach, 287. See also ^^ Indictable Offences." CONFINEMENT.— SOLITARY. May be ordered by the court, in addition to other punisn- ment in certain cases by stats. *3 W. IV., c. 3, § 24 ; 4 & 6 V.,c. 24, §28; 4 & 5 V., c. 25, § 4. mm- m 180 iri- ■t:i mj^ it 1;, Mi ill )'";' t« ! Mm ^onnpitatSf* CONSPIRACY. Is a combination of two or more persons to injure a third person— 1 Haw. c. 72, § 2 ; or to injure or prejudice the community— 8 Mod. 11, 320 ; 3 Jf. J- 8.^1 ; thus, where the defendants were charged with conspiracy in causing a man to be convicted and executed for robbery, which they knew he was innocent of, with intent to obtain the reward then given by act of parliament — R. v. Macdaniel, 1 Leach, 45 ; Fo8t. 130 : so, where the defendants were indicted for conspiring to accuse another of taking hair out of a bag, without alleging that it was done feloniously, Lord Mans- field held, that the ^ist 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 crimi- nal acts, or such only as affect his reputation, it is sufficient — B. V. Bispal. 1 Bl. Bep. 368 ; 3 Burr, 1320 : so, where the prosecution is for the sole purpose of extorting money B. V. Hollinghury, 4: B. ^ 0. 329 : so also, a conspiracy to prevent a prosecution for a felony, is as much an offence as a conspiracy to institute a false prosecution — 14 Ves. 65 ; and a conspiracy of two magistrates to prevent the course of justice, on an indictment for not repairing a highway, by signing a false certificate of the highway being in repair, in order to prevent the court from imposing a fine on the de- fendants, has been also held to be an indictable offence.— B. V. Mawley, 6 T. B. 619. Among various other subjects of conspiracy may be mentioned a conspiracy to obtain, by procuring in return, the appointment to a public office — K V. Pollman, 2 Ca7w/)."229 ; of several defendants to injure a man in his trade — B. v. Ecclea, 1 Leach, 274 ; to sell un- wholesome wine or provisions — B. v. Macarty, and Forden- bourgh, 2 Ld. B. 1179 ; journeymen combining not to work unless for certain wages — B. v. Journeyman 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 V. to his prejudice, by reading it over falsely to him. — B. Skirret, 1 Sid. 312, 431. If all the defendants who are indicted for a conspiracy be acquitted but one, the acquittal of the reat is the acquittal of that one also, as there must be two concerned in the conspi- racy— CVo. Cir. Com. 159; 2 Ld. Bay. 1167; 2 Burr. 993 : but an indictment against one person and others un- known, is maintainable. — 3 Chit. c. 4, 1141. By 4 & 5 v., c. 27, § 25, in case of any assault committed in pursuance of any conspiracy to raise the rate of wages, the court any term e so think fit for keeping The offer peace in th( and the act is evidence If one only in the absen Str. 193. [ fine and imp —2 Burr, li County of to wit, in the county county, yeoma labourer, bein day of reign iady Vi aforesaid, in a (or,iftheconsp, did conspire, c state the object o their oath afor •^'c., in pursua combination, c said A. B., &c. where the overt r ^^^y) to the gre to the evil exan said lady the ^unt, stopping a ads, and.conclm ^0 person ( inhabitant of tl R' V. Adbard, ant person be i abler person ap Barristers at W €onnt^Ut^ 181 the court may sentence the offender to be imprisoned for any term not exceeding two years, and may also (if it shall so think fit) fine the offender and require him to find sureties for keeping the peace. The offence of conspiracy may be tried by justices of the peace in their quarter sessions — E. v. Mispalf 3 J5wrr, 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 Str. 193. The punishment for a conspiracy is by pillory (a), fine and imprisonment, and sureties for the good behaviour. —2 Burr, 1027. See z\bo post title " WorTcmen." Indictment for Conspiracy. (^Chitty.) County of , ) The jurors for our lady the Clueen, upon to wit, \ their oath present, that A. B., late of , in the county of , yeoman, C. D., late of , in the said county, yeoman, and E. F., late of , in the same county, labourer, being persons of evil minds and dispositions, on the day of , in the year of the reign of our sove- reign lady Victoria, with force and arms, at the township aforesaid, in the county aforesaid, unlawfully and wickedly (or, if the conspiracy be malicious, say "falsely and maliciously") uid conspire, 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., &c., in pursuance of, »*.d according to the said conspiracy, combination, confederacy and agreement, between them, the said A. B., &c. as aforesaid had, did, on, &c., at, &c. (the place where the overt act took place) (here set out the overt acts of conspi- racy) to the great damage of, &c. (the party immediately injured) to the evil example of all others, and against the peace of our said lady the Q,ueen, her crown and dignity (add a second count, stopping at the statement of the conspiracy, omitting the overt ads, and.concluding as above.) CONSTABLE. Who are liable to Serve the Office. No person can be appointed a constable who is not an inhabitant of the place where he is to serve — 1 Burn 703 ; R. V. Adbard, 4 B. ^ C. 772 : and if a very poor and ignor- ant person be chosen, he may by law be discharged, and an abler person appointed in his room. — Ibid. ; Bait. c. 28. Barristers at law, attorneys, and other oflScers of the Court (a) Pillory is now abolished by the 4 & 5 V., o. 24, § 31. > 1! 1 ' i- it'i 'f''*\-mm$iV r '■'af'P'i' 'i»»i.i •.'ill 'i mmm 182 €onutaf^U* f-i llfjirM^ n It li 'i *l»"''? c- Iti^i .' ( I .IS' Si ;!■ 1 1 ) * ' r' if i-t:f|^i'P ?<: != Il^.s. of King's Bench, are exempt from serving the office— 2 Keb. 508 ; Oro. Oir. 389 ; 2 Eaw. c. 10, § 30 : and by the ancient custom of the realm, surgeons have been allowed the like privilege. An officer in the King's service, or a gentleman of quality^ may perhaps be relieved from serving such office, upon ap- plication to the Court of King's Bench, provided there are other persons sufficient to execute the office. — 2 Haw. c. 10, § 41. It hath been holden that the King may exempt any per- son, if the exemptioii be not extended so far as to prevent the existence of the office in any place. — Rex. v. Clark, 1 T. B. 682. By 10 & 11 W. III., c. 23, § 2, 3, the prosecu- tor of a felon to convictiou is discharged from liability to serve as constable. A foreigner, though naturalized, is not liable to serve. — Rex. v. Be. Mierre, Burr, 278. No man that keeps a public Jiouse ought to be made a constable, if there are other persons in the parish proper to serve. — Per Eolt, a J. 6 Mod. 42. How Appointed, and how Punishable for refusal to serve, *By 33. G. III. c. 2, § 10, it i' enacted, that it shall be lawful for justices of the peace, -su nin the respective limits of their commissions, at their general quarter sessions in April, (but now March, under the 20 V., c. 58, § 16,) {a) or the greater part cf them, to nominate and appoint, yearly, a sufficient, discreet and proper person, to servo the ofGce 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 necessary to serve the office of constable, in each and every township, reputed township or place; and the said constable and constables, before they enter into their office, shall severally take the following oath {b) : You shall well and truly serve our sovereign lord the Kin s. d. Arrest of each individual upon a warrant, (to be paid out of the district funds, or by the party, as the case my be) 5 Serving Summons or Subpoena 1 8 Mileage, 6d. per mile, (to be paid out of the district funds, or by the party, as the case may be.) Attending Assizes or Sessions per day 5 Attending any Justice on trials, under the summary punishment acts, or on the examination of prison- ers charged with any crime, for each day neces- sarily employed 5 Mileage in going to serve summons or warrant, when the service has not been effected ; the Justices in Sessions to be satisfied that due diligence has been used, (to be paid out of the district funds, or by the party, as the case may be.) 6 Memorandum to €on»tllflU. 189 Taking prisoners to gaol, 4d. per mile, exclusive of disbursements necessarily expended in their con- veyance, (*o be paid out of the district funds, or by the paiiy, as the case may be.) Summoning jury for inquest 10 Attending inquest for each day other than the first... 6 Serving notice of appointment of constables, when personally served 2 6 Levying upon distress warrant and returning the same, where charge not provided by law 5 Travelling to make distress, or to search for goods to make distress when no goods are found, 4d. per mile, when charge not otherwise provided by law. Appraisement, whether by one appraiser or more, 4d. in the pound on the value of the goods. Note. — The above costs are by the 9 V., c. 58, chargeaWe (with other costs) on the public revenue, and by order in council are to b<> ecdeied in duplicate to the treasurer of the county during the sitting of the quarter sessions, or within three days thereafter, verified by affidavit and certified by the justice under whoso authority the services were performed. See further under title •' Costs." Form of appointment of a Deputy Constahh. I, C. D., constabk; of in the county of , do hereby u;ake, substitute and appoint G. H. of yeoman, ray true and lawful deputy, in the office of constable of the said town- ship, so long as 1 shall hold the same (or during the continu- ance of my will and pleasure). Witness my hand, the day of in the year of our Lord 18 . Oath to he administered hy Constable to AppraiserSy on Goods being distrained for Rent. You shall swear that you will faithfully appraise the goods taken in distress, and mentioned in the inventory to you shewn, as between buyer and seller, according to the best of your skill and knowledge. So help you God. Memorandum to be endorsed by the Constable on the Inventory. Memorandum, that on the day of in the year of our Lord 18 , A. B. of and C. D. of two sworn appraisers, 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 know- ledge ; as witness my hand. E. F., Constable. Present at the time of swearing the said A.B. and CD. as above, and witness thereto. J. K. L. M. i 4 m I- - S* ' filr '.i .'■ti ■•■i 1 : \ :r-;: }l ' • ?, ::.! m I 190 m^onutitumnui ^ttis. /:'|>\ I*'. ill Proclamation of Constable for Rioters to disperse. Our sovereign Jady the Clueen charges and commands all persons here assembled, immediately to disperse themselves, and peaceably depart to their several habitations, on pain of imprisonment. Indictment for refusing to serve the office of High Constable, [Archbold). County of , ) The jurors for our lady the Q,ueen,'upon to wit. J their oath present, that at the general quarter sessions of th? peace holden at the city of , in and for the county of , on the day of , in the year pf the reign of our sovereign lady Victoria, to wit, at the city aforesaid, in the county aforesaid, before A. B. and C. D. Esquires, and others their associates, justices of our said lady the Q,ueen as- signed to keep the peace of our said lady the Glueen in and for the said county, and also to hear and determine divers felonies, trespasses and other misdemeanors in the said county comrriitted, one J. S., late of the township of , in the county of , yeoman, then, and long before, being an inhabitant and residing in the township last aforesaid, in the county aforesaid, and a fit and able person to execute the office of high constable within the said count}', at tlie said sessions, by the justices aforesaid in due manner, was then and there elected to be high constable of the said county, 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 aforesaid, had notice: nevertheless 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 wit, on the dav and year aforesaid, at the township aforesaid, ia the county aforesaid, unlawfully, wilfully, obstinately and contemptuously did refuse, and from thence continually, until the day of tho taking of this inquisition, unlawfully, willfully, obstinately and contemptuously hath refused, and still doih refuse, to take upon himself and execute the said office of high constable within and for the county aforesaid, to wit, at the township aforesaid, in the county aforesaid, contrary to his duty in that behalf, in manifest contempt and delay of justice, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. The above form, ^Yith a slight variation, will answer for petty constables also. CONSTITUTIONAL ACTS. By tho imperial statute 14 G. III., c. 88, entitled, "An Act for making more effectual provision for the government of the province of Quebec, in North America," it is enacted that the inhabitants of the said province of Quebec may have, hold and ( of Rome, establishe( countries ^ imperial, c] church ma and rights, the said re Majesty, hi of the rest encouragea tenance an said provin necessary ai fesjsing the the said pro by the said i by any othei person who b therein meni the following such court of I. A. B. do All and bear t him will clefen conspiracies i against his pei endeavour to d £.nd successors tempts, which and all this evasion, or sec dispensations contrary. So And every s the said oath, i § 8. That ir and civil rigjits as the rules" for ^ § 17. And t be construed to successors fron courts of crimiri 0" they shall thi of the province. eonstfttttfonal ^tts. 191 hold and enjoy, the free exercise of the religion of the church of Rome, subject to the king's supremacy declared and established by the 1 Q. Eliz. over all the dominions and countries which then did, or thereafter should, belong to the imperial, crown of this realm : and that the clergy of the said church may hold, receive and enjoy their accustomed dues and rights, with respect to such persons only as shall profess the said religion. § 5. And that it shall be lawful for his Majesty, his heirs or successors, to make such provision out of the rest of the said accustomed dues and rights, for the encouragement of the Protestant religion, and for the main- tenance and support of a Protestant clergy within the said province,, as he or they shall from time to time think necessary and expedient. § 6. Provided that no person pro- fessing the religion of the church of Rome, and residing in the said province, shall be obliged to take the oath required by the said statute 1 Q. Eliz., or any other oaths substituted by any other act in the place thereof ; but that every such person who by the said statute is required to take the oath therein mentioned, shall be obliged to take and subscribe the following oath, before the Governor, or such person in such court of record as her Majesty shall appoint. Form of the Oath. I, A. B. do sincerely promise and swear, that I will be faith- ful and bear true allegiance to his Majesty King- George, and him will defend to the utmost of my power, against all traitorous 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 j.nd successors, all treasons and traitorous conspiracies and at- tempts, Avhich I shall know to be against him or any of them ; and all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any power and person whomsoever to the contrary. So help me God. And every such person who shall neglect or refuse to take the said oath, shall incur the penalties of the 1 Q. Eliz. § 8. That in matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rules for the decision of the same. § 17. And that nothing herein contained shall extend, or be construed to extend, to prevent his Majesty, his heirs and successors from erecting, constituting and appointing such courts of criminal, civil and ecclesiastical jurisdiction, as he or they shall think necessary and proper for the circumstances of the province. m ^'ir't!i|!^ 'v% bK i'-n Ms r '1 S mi mm irfl i:H^ n '< ■:! lit ,/ ' hi' 4 i' h III t Jr.l, ■ .i IV. J : •i <« I'll • tSB'S't' 'ihi i'J ■'.'■', f 1*1! ^''t!|:#^i|| :lil lip 193 itmutitutionBl Mttu* ■(■'-■' ^j ii^ iipj' 'III k.i.^ By the imperial statute 18 G. III., c. 12, it is de'^lared that the imperial parliament will not impose any duty or tax on any colony, except only for the regulation of commerce, the net produce of such duty or tax to be applied for the use of the colony in the same manner as duties imposed by the local legislature. By the imperial statute 31 G. III. c. 31, entitled, " An Act to repeal certain parts of an act passed in the fourteenth year of his Majesty's reign, entitled ' An Act for making more effectual provision for the government of the province of Quebec in North America, and to make further provision for the government of the said province.' " after noticing that his Majesty had 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, certain provisions were thereby made for the division of the said province, and providing a separate legislature for each province. But as the two provinces have been since re-united by an act of the imperial legislature, and now again constitute but one province, it will be suffici- ent here to give the provisions of the act by which the re-union Las been effected. By imp. stat. 3 & 4 V., c. 35, entitled, "An Act to re-unite the provinces of Upper and Lower Canada, and for the govern- ment of Canada:" after reciting that it was necessary that provisions be made for the good government of the provinces of Upper Canada and Lower (knada, in such manner as might secure the rights and liberties and promote the interests of all classes of her Majesty's subjects within the same, and that to this end it was expedient that the said provinces be re-united and form one province for the purposes of executive government and legislation : it is enacted, that it should be lawful for her Majesty, with the advice of her privy council, to declare or authorise the Governor- General of the said two provinces to declare by proclamation that the said provinces, upon, from and after a certain day in such proclamation to be appointed, which day shall be within fif- teen calendar months next after the passing of this act, should form and be one province, under the name of the Province of Canada, and thenceforth the said provinces should consti- tute and be one province,! under the name aforesaid, upon, from, and after the day so appointed. § 2. Provided that so much of the 31 Geo. III., c. 31, as provides for con- stituting and composing a Legislative Council and As- sembly within each of the said provinces respectively, and ifill for the n acts 1 & should CO should be enactmen be within one Assen blyofCai advice am laws for tl vince of C &c. § 4. under the Majesty's i province, t( being not and from ti council sue] think fit, ar come a me shall be so years, and i Parliament or Lower C subject to t rises memb Legislative ( without perE allegiance U may become become entit become bani attainted oft crime, his sei Council to del to her Majes the speaker, constitute a q majority, and thorises the G to summon ar Upper and Lc ber of repres , (a) The Legisl eleotire. 25 eoni^tittttfonal ^ct0. 193 for the making of laws ; and the iwhole of Lower Oanada acts 1 & 2 v., c. 9 ; 2 & 3 v., c. 53 ; 1 & 2 W. IV., c. 23, should continue in force until the union by proclamation, and should be repealed from that day, but not revive any former enactment; by such repeal. § 3. After the re-union there shall be within the province of Canada one Legislative Council and one Assembly, to be called the Legislative Council and Assem- bly of Canada, with power to her Majesty, by and with the advice and consent of such council and assembly, to make laws for the peace, welfare and good government of the pro- vince of Canada ; such laws not being repugnant to this act, &c. § 4. It shall be lawful for her Majesty, by an instruro'^nt under the sign manual, to authorise the Governor, in her Majesty's name, by an instrument under the great seal of the province, to summon to the Legislative Council(a), such persons being not fewer than twenty, as her Majesty shall think fit, and from time to time in like manner to summon to the said council such other person or persons as her Majesty shall think fit, and every person so summoned shall thereby be- come a member of the Legislative Council ; but no person shall be so summoned who shall not be of the full age of 21 years, and a natural born subject, or naturalized by act of Parliament of Great Britain, or by the legislature of Upper or Lower Canada. § 5. Members to hold their seats for life, subject to the provisions hereinafter contained. § 6 autho- rises members to resign their seats. § 7. And if any Legislative Councillor shall be absent two successive sessions without permission of the Governor, or shall take the oath of allegiance to any foreign power, or do any act whereby he may become a subject or citizen of any foreign power, or become entitled to the rights or immunities of such, or shall become bankrupt or insolvent, or a public defaulter, or be attainted of treason, or convicted of felony or of any infamous crime, his seat shall thereby become vacant. § 8 Legislative Council to determine questions of vacancy, subject to an appeal to her Majesty. § 9. The Governor to appoint and remove the speaker. § 10. Ten members, including the speaker, to constitute a quorum ; and all questions to be decided by tue majority, and the speaker to have a casting vote. ^ 11. Au- thorises the Governor from time to tiira, in her Majesty's name, to summon and call together a Legislative Assembly. § 12. Upper and Lower Canada to be represented by an equal num- ber of representatives. § 13. County of Malton, in Upper (a) The Legislative Couuoil ia now by the 19 & 20 V., o. 140, made elective. 25 "i;i iV* • ' ' ! K , V-!; 'i-.rii IW I; . "■ ■■'?' It'' 1»4 eotftftfttttfonai ^ttu. f-i It) ■■ lii ! I' I' I t in -' » , Canada, to be divided into^two ridings, east and west, and each to be represented by one member. § 14. County of Northum- berland, in Upper Canada, to be divided into two ridings, north and south, and each to be represented by one member. § 15. County of Lincoln, in Upper Canada, to be divided into two ridings, north and south, each to be represented by one member. § 16. Every other county and riding in Upper Canada to be represented by one member. § 17. City of Toronto to be represented by two members. The towns of Kingston, Brockville, Hamilton, Cornwall, Niagara, London, and Bytown, to bo represented by one member. § 18. Every county in Lower Canada, which before the 1 & 2 V., c. 9, was entitled to be represented, except the counties of Monmorency, Orleans, L' Assomptioiif La Chesnat/e, L'Acadie, Zaprairie, Dorchester, ,Beauce, to be repre- sented by one member. § 19. The counties of Montmor- ency and Orleans to be united and called the county of Montmorency. The counties of L'Assomption and La Chesnaye to be united and called the county of Leinster ; and the counties of L'Acadie and Laprairie to be united and called the county of Huntingdon ; and the counties of Dorchester and Beaucc to be united and called the county of Dorchester ; and each of said counties to be represented by one member. § 20. Cities of Quebec and Montreal to be each represented by two members ; and the towns of Three Rivers and Sherhroohe to be each represented by one mem- ber. § 21. Boundaries of cities and towns to be settled by the Governor : the parts adjoining and not included within such boundaries to be taken as part of the adjoining county or riding. § 22. Returning officers to be appointed by the Governor. § 23. No person obliged to execute such office for any longer term than one year, or oftener than once, unless otherwise provided by the legislature. § 24. Writs of election to be issued by the Governor within fourteen days after the sealing of the instrument, for calling together the assembly : directed to the returning officers, returnable within fifty days unless otherwise provided by the legislature : and writs in like manner to be issued in the case of any vacancy, returnable as above ; and in case such vacancy shall happen by death of the member, or his being summoned to the council, the writ shall be issued within six days after notice thereof left at the oifice of the proper officer for issuinp; the same. § 25. The Governor to fix the time and place of holding the elections, giving not less than eight days' notice thereof. § 26. The legislature authorised to alter the divi- sions and extent of the several counties, ridings, cities and towns, ai portionm apportior issuing ai be presen tation in i third read passed wil the time b both house bill has be the legislai time of pas at the time qualificatio perty quali qualificatio] by them, ai and the pi of continua troverted e] he applied Canada. § a member w^ freehold, for and common of lands or t province of ( above all in shall be capa other candidj ing declaratic I. A. B., do or in equity a lands or tenen seised and pos tenements hel province of C sterling mone) gages, charges able out of or sively or colou the said lands pose of qualify the Legislative § 29. False eoiffiitftutfonal Mttn. 196 towns, and to establish new divisions ; and to alter the ap- portionment of representatives, and alter and regulate the apportionment of returning officers, and make provision for issuing and return of writs of election : provided that no bill be presented for her Majesty's assent by which the represen- tation in the Assembly shall be altered, unless the second and third reading thereof in the council and asszmbly shall have passed with the concurrence of two-thirds of the members for the time being of both houses ; and unless addresses from both houses be presented to the Governor stating that such bill has been so passed. § 27. Until otherwise provided by the legislature, the laws in Upper Canada in force at the time of passing this act, the laws of Lower Canada in force at the time of passing the 1 & 2 V., c. 9, relating to the qualification or disqualification of members (except the pro- perty qualification hereinafter provided,) and relating to the qualification and disqualification of electors, and to the oaths by them, and the powers and duties of returning officers, and the proceedings at such elections, and the period of continuance thereof, and relating to the trials of con- troverted elections, and vacating seats of members, shall be applied to elections of members for the province of Canada. § 28. No person shall be capable of being elected a member who shall not be legally or equitably seised as of freehold, for his own use, of lands or tenements held in free and common soccage ; or seised or possessed, for his own use, of lands or tenements held in fief or en roture, within the province of Canada, of the value of £500 sterling over and above all incumbrances ; and every candidate, before he shall be capable of being elected, shall, if required by any other candidate, or by the returning officer, make the follow- ing declaration : — I, A. B., do declare and testify, that I am duly seised at law or in equity as of freeliold, for my own use and benefit, of lands or tenements held in free and common soccage (or duly seised and possessed, for my own use and benefit, of lands or tenements held in yfr/ or m ro/wre (as the case may be) in the province of Canada of the value of five hundred pounds of sterling money of Great Britain, over and above all rents, mort- gages, charges or incumbrances charged upon or due or plfey- abie out of or aflecting the same ; and that I have not coUu- sively or colourably obtained a title to or become possessed of the said lands and tenements, or any part thereof, for the pur- pose of qualifying or enabling me to be returned a member of the Legislative Assembly of the province of Canada. § 29. False declaration to be deemed a misdemeanor, and I 1 f pi t4\ s!>w;.v I'M ',■ ■ I 196 €0n»iituttonul ^ttn. ■il nm : 'I '^3 • ' 'iff .'^ ■It '■ i;. '!■'■ .'t .l|' !i lif'^:! I.S- i 8M punished as false and corrupt perjury. § 30. It shall be lawful for the Governor for the time being to fix such place or places, within any part of the province of Canada, and such times for holding the first and every other session of parliament, as he may think fit ; to be afterwards changed or varied, as the Governor may judge desirable and most consistent with general convenience and the public welfare, giving sufficient notice thereof; and also to prorogue the parliament and dis- solve the same by proclamation, or otherwise, whenever he shall deem it expedient. § 31. A session to be held once at the least every year, so that twelve calendar months shall not intervene between the last sitting in one session and the first sitting of the next : and every assembly shall continue for four years from th*j day of the return of the writs ; sub- ject, nevertheless, to be sooner prorogued or dissolved by the Governor. § 32. The parliament to be convened for the first time within six calendar months after the re-union. § 33. The assembly, at the first meeting after every general election, to elect one of their number to be speaker ; and in case of his death, resignation, or removal, forthwith to elect another. § 34. Twenty members at the least, including the speaker, to constitute a quorum. All questions to be de- cided by the majority present, and the speaker to have a casting vote. § 35. No member of the counci' or assembly to sit or vote until he shall have taken and subscribed the following oath before the Governor, or some other person or persons by him authorised : — I, A, B., do sincerely promise and swear, that I will be faithful and bear true allegiance to her Majesty Q,ueen Vic- toria, as lawful sovereign of the United Kingdom of Great Britain and Ireland, and of this province of Canada, dependent on and belonging to the said United Kingdom ; and that I will defend her to the utmost of my power against all traitorous conspiracies and attempts whatever whicli shall be made against her person, crown and dignity; and that I will do my utmost endeavour to disclose and make known to her Majesty, her heirs and successors, all treasons and traitorous conspira- cies and attempts which I shall know to be against her or any of them ; and all this I do swear without any eiyr '■..:•; ion, mental evasion, or secret reservation, and rcno;::.; ... ii par. dorfs and dispensations from any person or per^oj .. -icUever to the contrary. So help me God. § 36. Affirmation may be made where authorisea by Jaw. § 37. The Governor may, in her Majesty's name, assent to or reserve bills for her Majesty's pleasure. § 38. Bills As- sented to may be disallowed within two years. § 39. No reserved bill to be in force until the Governor, by speech or message t( her Majes ment of a '. or deputies After the ] lish langua Crown rig parliament, same shall either house 43. Provisi( 44. And rei Bench, and . peal in Loy\ functions of by the Gove: or with the a Executive C pointed by h by the said G the advice, cc is not require to remain in i any subsequei civil f ' r.|ii' f iJi'vH* ' ■' iiii I ^'i- ■ I II'. g .!!^:':■«v:' more than £3,000 shall be payable at the same time, for pen- sions to the judges, out of the said sum of ^645,000 ; and not more than £5,000 payable at the same time for pensions out of the said sum of £30,000 : and a list of all such pensions shall be laid yearly before the legislature. § 54. During the time aforesaid, said sums of ^£45,000 and £30,000 shall be accepted by her Majesty by way of civU list, instead of territorial and other revenues now at the disposal of the Crown, and three-fifths of the nett produce of said ter- ritorial and other revenues shall be paid over to the conso- lidated revenue fund ; and during the life of her Majesty, and for five years afterwards, the remaining two-fifths shall also be paid over to the said consolidated fund. § 55. Consolida- tion of the revenues not to affect the payment out of the con- solidated fund of any sum or sums heretofore charged upon the rates and duties of either of the said provinces, for such time as shall have been appointed by the respective legisla- tures. § 56, provides for the charges on the consolidated fund, in the following order : First — The expenses of collec- tion. Second — The annual interest of the public debt of the provinces of Upper Canada and Lower Canada at the time of the re-union. Third — Payments to the clergy of the United Church of England and Ireland, and to the clergy of the Church of Scotland, and to ministers of other denomi- nations, pursuant to any law or usage. Fourth — The said sum of £45,000. Fifth— The said sum of £30,000. Sixth — The other charges upon the rates and duties levied within the said province of Canada. § 57. Subject to the above charges, the consolidated revenue fund to be appropriated by the legislature : provided, that all bills for appropriating such surplus, or for imposing any new tax or import, shall originate in the Legislative Assembly ; to be^rs^ recommended in a message by the Governor. § 58. Authorises the Governor to constitute new townships, under the great seal. § 59. The powers given to the Governor shall be exercised in conformity with her Majesty's instructions and orders. § 60. The Mag- dalens may be annexed to the island of Prince Edward, at her Majesty's pleasure. § 61. Interpretation clause. § 62. This act may be amended or repealed during the present session. f SCHEDULE A. Governor £7,000 Lieutenant-Governor 1,000 Upper Canada. One Chief Justice 1,500 Four Puisne Judges, at eeOOO each 3,600 One Vice-C One Chief J Three Puisi One Chief J Three Puisi One resideni One Judge o One Judge o Pensions to SoJicitors-( Expenses the Provim Civil Secretar Provincial Set Receiver-Gen< Inspector-Gen Executive Cot Board of Wort Emigrant Agei Pensions Contingent Ex By imp. stat Provincial Le<» lative Council? By provincij assented to 24t the Legislative of the present i to be elected as provides that ( electoral divisio four in Lower C act ; no person Councillor unles ization resident and legally or e( £2,000 currenc} less his residenc( the limits of the The other pro eon^tuittfonai ^tt!$« 199 One Vice-Chancellor 1,125 Lower Canada. One Chief Justice, duebec 1,500 Three Puisne Judges, Quebec, at £900 each 2,700 One Chief Justice, Montreal 1,100 Three Puisne Judges, Montreal, at £900 each 2,700 One resident Judge at Three Rivers 900 One Judge of the Inferior District of St. Francis 500 One Judge of the Inferior District of Gaspe 500 Pensions to the Judges, Salaries of the At'orneys and Solicitors-General, and Contingent and Miscellaneous Expenses of Administration of Justice throughout the Province of Canada 20,875 je45,000 SCHEDUDE B. Civil Secretaries and their Offices 8,000 Provincial Secretaries and their Offices 3,000 Receiver-General and his Office 3,000 Inspector-General a' d his Office 2,000 Executive Council •. 3,000 Board of Works 2,000 Emigrant Agent 700 Pensions 5,000 Contingent Expenses of Public Offices 3,300 £30,000 By imp. stat. 17, 18 V., c. 118, power was given to the Provincial Legislature to alter the constitution of the Legis- lative Council. By provincial stat. 19, 20 V., c. V., 140 [reserved, and atsented to 2'ith June, 1856, proclaimed lith July, 1856,) the Legislative Council is made elective, and to be composed of the present members thereof, and of forty-eight members to be elected as provided by the act, and to this end the act provides that the province shall be divided into forty-eight electoral divisions, twenty-four in L^^pper Canada and twenty- four in Lower Canada, as set forth in Schedule A. to the act ; no person shall be eligible to sit or vote as a Legislative Councillor unless he be a British subject by birth or natural- ization resident in Canada, of the full ago of thirty years, and legally or equitably seised of real estate to the value of £2,000 currency, over and above all incumbrances, nor un- less his residence or property to the value aforesaid be within the limits of the electoral division for which he is elected. The other provisions of the act with respect to the mode of I . >■.? I : iVi i q ^^ i- ':*!-'■ ■'■ r .■*■ , 200 eontemiit ■i I n ' ■-; H £. . ill ^' Vi' '■■■■J ■■j'ii.# «.."*- elections, qualification of voters, electoral divisions, &c., ^11 be found under the general heads of "Parliamentary Repre- sentation" and "Ulcctions." CONTEMPT. A contempt is in legal meaning either an open resistance or insult to the power of a court of record, committed by any person in the face of the court, or 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 magistrate, he may commit for the contempt; but if tlie words are spoken of him behind his back, the party can then only be indicted. — li. v. Revel, 1 Str. 420. A commitment by the sessions or other court of record need not be under seal, as the memorial thereof, which may at any time bo entered of record, is sufficient without any warrant. — \Male 583, 584 ; but a justice cannot commit for contempt, except by warrant in writing — 3Iayhew v. Locke, 7 Taunton, 6(J ; and unless the words be spoken under circumstances which render it probable they may prevent the due administration of justice, it will be safer for the magistrate to abstain from summary punishment and proceed by indictment, which will certainly lie for words addressed to him while in the discharge of his duty — Dikcnson, Q. S. 43 ; if, however, the party bo imprisoned instanter, the commitment must be for a time certain, and a commitment until the defendant is discharged by due course of laio is bad. — Rex v. James, 5 B. Sf A. 894. It has been held that a commitment which charged the party generally with having insulted justices of the peace in the execution of their office, without specifying what he said or did, is sufficient — 2 Barnard, 155 ; it is, however, in general advisable to describe the offence concisely but in substance as in an indictment. — Chitty, C. L. ^. 112. A justice of the peace may commit for contempt while in the execution of his office out of the sessions, but the commitment must be bj warrant in writing and for a specified period. — Jones v. Qlar- ford, 3Iichs. 2 V., Cameron's Digest, 544. Commitment for Contempt. Province of Canada : County of ) ^^ ^,^^ ^ ^^ to wit. J ^ Receive into your custody the body of C. D. herewith sent you by mo A. W., Esquire, one of her Majesty's justices of the peace in and for the said county, and convicted (or charged, as the case may be) by me, the said justice, with contempt and indecent ing me, i such justi hearing of justice shai your custo to be com] this preser (or until 1 tne next g county, to j charged by and seal, at A convict It is not uj draw up a f case in whici the proceedii the time of maj afterwa conviction ; n due form, bef Even after a| draw up a e defence, prov when the coni 12 Hast. 82. When the tion, it must directory, " ^ draw up the c( then the justi, although it m given, as neai statute.— i>a/. In cases of ^}?, s. 27, en th)3 act shall for which see jc A defendant the justice is b Im, Burr, VJi from drawing i '''"?e; for this 26 (STontifctfon* 201 indecent behaviour in my presence, by insulting and obstruct- ing me, the said justice, in the due execution of my office, as such justice as aforesaid, (and /or saj/iiirj, drc, in the presence and hearing of me, the said justice,) [Iicre set forth the particulars, if the justice shall think it necessart/,"] 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 county, to answer to the charge aforesaid, or be otherwise dis- charged by the due course of law.) Given under my band and seal, at , in the said county, ihe day of CONVICTION A conviction ought to be in words and figures at length. It is not usual or necessary for the convicting justices to draw up a formal conviction in the first instance, in every case in which a penalty is inflicted, but to make minutes of the proceedings (without attending to the precise form) at the time of pronouncing the judgment, from which they may afterwards, if occasion require, make out a regular conviction ; nor is it necessary that it should be drawn up in due form, before the penalty is levied. — Paley on Con. 316. Even after an action brought, it seems that justices may draw up a conviction, and give it in evidence, by way of defence, provided the date is warranted in fact by the time when the conviction actually took place. — Masaey v. Johnson^ 12 Fast. 82. When the statute prescribes a particular form of convic- tion, it must 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 bo prudent for him to adhere to the form given, as nearly as possible, and pursue the words of the statute. — Pal. on Conv. In cases of " summary conviction" the statute 16 V., c. 178, s. 27, enacts that the several forms in the schedule to this act shall be deemed good, valid, and sufficient in law ; for which see post title '•'■ Summary Conviction.'' A defendant is entitled to a copy of the conviction, and the justice is bound to give it him, if requested. — It. v. Mid' lum, Burr^ 1720. But the justice is not thereby precluded from drawing up and returning a conviction in a formal shape ; for this last is to bo taken as the only authentic record 26 ■ Mr > s% 202 eonbfctfon. V of the proceedings. — li. v. Barber ^ 1 Ea»t. 82; jB. v. Allan, 15 Fast. 882. A justice should, in all cases, return a conviction to the sessions, wliether the party appeal or not, or whether an ap. Seal is or is not given, in order that the Crown may not bo eprived of its share of forfeitures. — R. v. Eaton, 2 T. R. 285. JBy 4 & 5 v., c. 12, § 1, every justice of the peace before whom any trial or hearing shall be had, under any law now or hereafter to be in force, imposing any fines, forfeitures, penalties or damages upon the defendant or defendants in case of convictions, shall make a due return thereof in ■writing, under his hand, to the next general quarter sessions for the district in which such conviction shall take place, and of the receipt and application by him of the moneys received from any such defendait or defendants; and in caso such convictions shall have taken place before two or more justices, each justice joining in such conviction shall make an immediate return thereof, as nearly as possible in the form set forth in the annexed schedule ; and the justices to whom any such moneys shall be afterwards paid shall make a return of the receipts and application thereof to the next general quarter sessions, to be filed by the clerk of the peace with the records of his oflSce. § 2. In case any such justice shall neglect or refuse, or shall make a false, partial, or incorrect return, or shall wilfully receive a larger amount of fees than by law is authorised, then he shall forfeit and pay .£20, with full costs of suit, to be recovered by any person in any court of record in Canada West ; one moiety to be paid to the party suing, and the other to the Receiver General, for the use of the province. § 3. Penalties to be sued for within six months after cause of action, and tried in the district where such penalties accrued ; and in case of verdict for the defendant, or non-suit, or discontinuance, the defendant shall recover full costs. § 4. Clerk of the peace, within seven days .iftcr the general quarter sessions shall have first adjourned, shall publish said returns in one public newspaper in the district, and fix up a schedule of such returns in the court house nnd some conspicuous place in his office, and the same to continue fixed up until the end of the next general quarter sessions ; and for every schedule so made and exhibited he shall be entitled to the fee of one pound, besides the expense of publication, in his accounts with the district. § 5. Clerk of the peace, within twenty days after the end of each quarter sessions, shall transmit to the Inspector-General a true copy of all such returns within his district. § 6. Justices of the peace not exonerated from duly returning convictions to the general mn Coroner. 203 quarter sessions, as by law required. § 7. Act not to prevent any person aggrieved from prosecuting by indictment. § 8. Sheriff required to transmit quarterly, to the Inspector- General, an account of fines, or to be liable to the bame penalty as justices. § 9. Act limited to Upper Canada. SCHEDULE TO WHICH THIS ACT REFERS. Returns of Convictions made hy me (or us, as the case may be) in the months of , 18 . II IN lime of Defendant. Nature of tlie Cliarpe. a gj « aj Amount of penalty, fine or da ma (re. Time wbeu paid or to be paid to said Justice. To whom paid over by said Justice. If not pnid, why not, and general observations, if any. A. B. Convicting Justice, C. or D. Convicting Juitiee$. {as tilt case may oe.) See also post title " Summary Conviction." CORONER. The court of the coroner is a court of record, to enquire when any 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. 271 ; Hales P. 0. 53. The coroner's duty being partly judicial, it cannot be executed by deputy. — Impey, 0. C. 473. By Stat. 4 Ed. I., c. 2, called the statute de officio coronatoris, which enacts, " that the coroner, upon information, 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 before him in such a place ; and when they arc come, the coroner upon the oath of them, shall enquire if they know where the person was first slain, whether it were in any house, field, &c., and who where there. Likewise it is to be enquired, who were culpable cither of the act or of the force, and who present, and of what age they bo, (if they can speak, and have discretion,) and as many shall be found culpable by the inquest shall be commited to gaol ; and such as 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 man I I ! i ♦ li^il'ii ''ill -^m m 204 €ovontt. i:U^ m" v! I.v-' : i ti ■ ) !f :1 i be slain suddenly, which is found in the fields, or in the woods, first it is to be seen whether he were slain in thfe same place or not, and if he were brought there they shall do as much as they can to follow their 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 enquire how much land he hath, and what it is worth yearly, and what crop he hath upon the gi'ound. And they shall cause all the land, corn, and goods to be valued, and delivered to the townships, which shall be answerable before the justices ; and likewise of his freehold, how much it is worth yearly, and the land shall remain in the King's hands until the lords of the fee have made fine for it. And these things being enquiiod, the body shall be buried." § 1. " In like manner it is to be enquired of them that be drowned, or suddenly slain, whether they were drowned, slain, 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 ought the coroner to attach the finder and all others in the company. A coroner also ought to enquire of treasure found, who were the finders, and who is suspected thereof; and that maybe perceived where one Hvcth rioto..3ly haunting taverns, and hath done so of long time, hereupon he may be attached for this suspicion by four, or six, or more pledges. Also all wounds ought to be viewed, the length, breadth and deepness, and with what weapons, and in what part of the body the wound is ; and how many be culpable, and how many wounds there be, and who gave the wound : all which things must be enrolled in the roll of the coroners. Concerning horses, boats, carts, &c., whereby any are slain, they shall be delivered unto the towns, as before is said. If any be suspected of the death of a man, being in danger of life, he shall be taken and imprisoned. In like manner hue-and-cry «hall be levied on all murderers, burglars, and for men slain, or in peril of death ; as is used in England, and all shall follow the hue and steps as near as can be ; and he that doth not, and is convict, shall bo attached to bo afore justices of the gaol." § 2. Of Sudden, Violent Death, which are all with:i>. the Coroner 9 Office to enquire, and Inquisitions . Sudden, violent deaths, are of these kinds : — 1. By the visitation of God : — 2. £t/ misfortune, where no other ha;' a hand i his own h he is kn endo, or j Corone families, ^ deceased i 231. 1. The apoplexy, might be quisition fi more to I examinatio 2. If th as a fall, & return the £ and to enqi hands, and be answeral 3. If th( puts an end malicious ac if attemptin sword ; or s] self; they ou and chattels same to the almoner, or and shall bii deliver}'. — 2 4. I^* a pj arc to find tl the first find reiL'rn his ^. J^. a 63. 5. J3utift tnown, and that ho (lieu viz .-—The in sent, aiding accessories cossories aftei pal, or access( he fled for tht is a forfeiture €t^tomv* 205 a hand in it ; as if a man fall from a horse or cart. 3. By his own hand, asfelo de se. 4. By the hand of another, where he is known, whether by murder, manslaughter, se defend- endo, or per infortunium. — 2 Hale, P. O. 62. Coroners are not to obtrude themselves into private families, where there is no preterce for supposing that the deceased died otherwise than by a natural death. — 11 East. 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 in- quisition find that he died by visitation of God, there is no more to be done, only the inquisition, together with the examination, are to be returned to the next gaol delivery. 2. If the inquest find the death per infortunium simply, as a fall, &c., then the coroner is to take examination, and return the same, with the inquisition, to the next gaol delivery, and to enquire of the deodand and the value, and in whoso hands, and to seize and deliver the same to the township, 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 consequence of which is his own death : as, if attempting to kill another, he runs upon his antagonist's sword ; or shooting at another, the gun bursts and kills him- self; they ought to find the special matter, and also what goods and chattels he had, of what value, and seize and deliver the same to the township, to be answerable to the King, or his almoner, or the lord of the franchise, to whom they belong, and shall bind over the first finder of the body to next gaol delivery.— 2 //. P. C. 62. 4. K a party be slain, and the felon is not hiown, they are to find their inquit^nion accordingly, and shall bind over the first finder of the body to the next gaol delivery, and reijrn his examinations, together with his inquisitions. — 2 H. P. a 63. 5. 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 dicu by his own hand, there were these proceedings, viz : — The inquest were also to enquire of all that were pre- sent, aiding and abetting ; they shall also enquire of all accessories before the fact ; but they cannot enquire of ac- cessories offer f/ic/ac^ If they find him guilty, as princi- pal, or accessory before the fact, they shall enquire whether he fled for the same ; if the inquisition find that he fled, it is a forfeiture of his goods ; but they cannot be seized before ->! I ■Ji ,1 !i \f ' r im .' i-, ♦• ■ r 206 eototur* a . ••: II' I'r' ' :''■ if Ci^-, he be convicted of the felony.- -1 B. III. c.Z; 2 H. P. 0. 63. If the persons that are found guilty by the inquest be taken, the coroner may and must commit them to the sheriff, (a) and he is to send them to the gaol ; but if they be not found he is not to proceed to outlawry, but return his inqui- sition tc the next gaol delivery, and the justices of gaol delivery are to proceed against the offenders if in gaol ; if not, then to certify the inquisition into the King's Bench, and then process of outlawry to go against them upon that inquisition.-4 Ud. /. ; 3 iT. VIL e. 1 ; 2 JT. P. 0. 64. It is clearly agreed that the inquest shall be taken on the view of the body, and that an inquest otherwise taken by the coroner is void. — 2 ITaw. P. 0. c. 9, § 23. But when the body cannot be found, or is so putrefied that a view would be of no service, the coroner, without a special com- mission, cannot take the inquest ; but in such cases it shall be taken by justices of the peace, or other justices autho- rised, by testimony of witnesses. — Vent. 352 ; ffaw. P. 0. c. 9, § 25. It is an indictable offence to bury the body be- fore, or without, sending for the coroner. — 1 Salk. 377. And a coroner may, within a convenient time, take up a dead body out of the grave, in order to view it and hold an in- quest. The coroner may enquire of accessories before the fact, but not of accessories after the fact. Where there is no pretence for supposing that the deceas- ed died otherwise than by a natural death — for instance, if he died of fever, apoplexy, or other visitation of God — an inquisition ought not to be held. — Umfr. 208. The coroner ought also to enquire of the death of all persons who die in prison, that it be known whether they die by violence or any unreasonable hardships; for if a prisoner, by the duress of the gaoler, come to an untimely death, it is murder in the gaoler. — 3 Inst. 52, 91. And this inquest upon prisoners ought to consist of a party jury — that is, six of the prisoners (if 80 many there be), and six of the next villo or parish not prisoners. — Umfrev. 212, 213. Of Crimes. The crimes which are likely to como under the cognizance of a coroner, and the lew thereon, are fully set forth under the title "Homicide," with the exception of the crime of Felonia de se, or suicide ; which is committed when a person (u) The modem proctice is to commit the prisoner to the common gaol direct, for vliicb Bce tlie form of such commitmeat— />o«(. of the ag stabbing, he lose h kills him commit n melancho man non offence bu alienation tic, or des self in afii in a lucid i a man vo within a ye cannot pui law, by his be simply ? A., to prev out advice, thereby /^/< was not wit se shall be through his torn has, he a. IV. Th only.— 1 Hi A deodant tune slain b to his death, to his death 607. Node discretion, i< like, not bein ox, or other j as an adult, case be forfei tton is the immediate ca wheel of a cai alone is a dcot only that par wheel which with it, and the cart and Coroner* 207 of the age of discretion and compos mentis^ kills himself by stabbing, poison, or any other way. — 1 Hale^ P. C. 411. If he lose his memory by sickness, infirmity or accident, and kills himself, he is not /VZo de se, neither can he be said to commit murder upon himself or any other. It is not eveiy melancholy or hypochondriacal distemper that denominates a niiin non compos mentis^ for there are few who commit this oifence but are under such infirmities, but it must be such an alienation of mind that renders them to be madmen, or fran- tic, or destitute of the use of reason. A lunatic killing him- self in a fit of lunacy is woifelo de se ; but if he kills himself in a lucid interval he is felo de se. — 1 Hale, P. 0. 412. If a man voluntarily give himself a mortal wound, and die within a year and a day of that wound, he is felo de se, and he cannot purge tho crime nor the forfeiture inflicted by the law, by his repenting what he had done. — lb. 411. It must be simply voluntary and with an i7itent to kill himself. Tf A., to prevent a gangrene beginning in his hand, doth, with- out advice, cut off his hand, by which he dies, he is not thereby /dj/o de se ; for though it was a voluntary act, yet it was not with an intent to kill himself. — lb. 412. A. felo de se shall be buried in the highway, with a stake driven through his body. — 4 Bl. Com. 190. This barbarous cus- tom has, however, been repealed in England, by statute 4 Gr. IV. The forfeiture o^felo 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 misfor- tune slain by a horse, cart, or any other thing that moveth to his death, then the thing which is the cause of, or moved to his death shall be forfeited to the King. — Lill. Pr. Reg. 607. No deodand is due when an infant, under the age of discretion, is killed by a fall from a cart, 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 mo- tion is the occasion of death, that part only which is the immediate cause is forfeited ; as, if a man 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, not 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, are deodand. — 1 Haw. P. U, c. 26. ■|||f Plill *lf mm I .' ■■ •ir I • c: ji ■ I '' i; 208 y. 367. The same challenges that may bo made to the shcnff, may also be made to the coroners ; in which case, if all the coroners be challenged, the venire may then be awarded to elisors, who are always chosen and appointed by the court, by rule, to return the jury. By 12 V. c. 81, § 136, one or more coroners shall and may be appointed for every city and town incorporated under the authority of this act. His Duties by Provincial ^Statute. By 4 & 5 v., c. 24, s. 4, it is enacted that every coroner upon any inquisition taken before him whereby any person shall be indicted for manslaughter, or murder, or accessory :m Coroner* 209 to murder before the fact, shall, in the presence of the party accused, if he can be apprehended, put in writing the evi- dence given to the jury before him or as much thereof as shall be material, giving the party accused full opportunity of cross examination, and shall have authority to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being accessory to murder, to appear at the next court of oyer and terminer or gaol delivery, or other court at which the trial is to be, then and there to prosecute or give evidence against the party charged ; and every such coroner shall cer£ify and subscribe the same evidence and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court. § 5. That when any person shall be committed for trial by any coroner it shall be lawful for such prisoner, his counsel, attorney or agent, to notify the coroner that he will, so soon as counsel can be heard, move her Majesty's court of superior jurisdiction, or one of the judges thereof, for an order to the coroner to admit such prisoner to bail, where- upon it shall be the dut^ oi such coroner, with all convenient expedition, to transmit to the office of the clerk of the crown, close, under hand and seal, a certified copy of all informa- tions, examinations, and other evidences touching the offence wherewith such prisoner sliall be charged, together with a copy of the warrant of commitment and inquest, if any such there be, and that the packets containing the same shall be handed to the person applying therefor in order to such transmission, and it shall be certified on the outside thereof to contain the information touching the case in question. § 6. That upon any application to her Majesty's Court of Superior Criminal Jurisdiction, the same order touching the prisoner being bailed or continued in custody shall be made as if the party was brought up on habeas corpus. § 7. If any coroner shall neglect, or offend against this act, it shall be lawful for the court to whoso officer such examination, &c., ought to have been delivered, in a sum- mary way to set such fine upon such coroner as the court shall think meet By 7 v., c. 5, § 5, the coroner presiding at any inquest on any body found publicly exposed and unclaimed by any iond ^*ie friend or relation, shall give notice thereof to the inspector of anatomy of the locality, if there be any, failing which, he shall cause the body to bo interred as has been heretofore customary. 27 <* ;i !', l!i ')■*'. !vSF r I 210 m^ovomv. nm i 'J -v. [l!"r'' h Jf 'I- '<■ By 10 & 11 v., c. 14, § 19, the coroner is to return a list of inquests and findings of juries to the Board of Registra- tion and Statistics, on or before the 1st day of January yearly. By 13 & 14 v., c. 56, entitled "An act to amend the law respecting the office of coroner," it if enacted by § 1, that from and after the pa3sing of this act, no inquest shall be holden on the body of any deceased person by any coroner, until it has been first made to appear to such coroner that there is reason to believe that such deceased person came to his death under such circumstances of violence or unfair means, or culpable or negligent conduct, either of himself or of other, as require investigation, and not through any mere accident or mischance: provided always, that an inquest shall be holden on the body of any person who shall die while in confinement in the provincial penitentiary. § 2. That upon the death of any prisoner or any lunatic confined in any lunatic asylum, it shall be the duty of the warden, gaoler, keeper or superintendent of any penitenti- ary, gaol, prison, house of correction, lock-up house, or lunatic asylum, in which such prisoner or lunatic shall have died, immediately to give notice of such death to some coro- ner of the county or city in which such death shall have taken place, and thereupon such coroner shall proceed forth- with to hold an inquest upon the body of such decoased prisoner or lunatic. § 3. That if any person, having been duly summoned as a juror or witness to give evidence upon any coroner's inquest, shall not, after being openly called three times, appear ami serve as such juror, or appear and give evidence on such inquest, every such coroner shall be empowered to impose such fine upon any person so making default as he shall think fit, not exceeding twenty shillings ; and every such coroner shall make out and sign a certificate, containing the name, residence, trade or calling of such person so making default, together with the amount of the fine imposed, and the cause of such fine, and shall transmit such certificate to the clerk of the peace in the county in which such defaulter shall reside, on or before the first day of the ([uartcr sessions of the peace then next ensuing for such last mentioned county, and shall cause a copy of such certificate to be served upon the person so fined, by leaving it at his residence within a reasonable time after such inquest ; and all fines and forfeitures so certified by such coroner shall be estreated, levied and applied in like manner, and subject to the like powers, provisions and penalties in all respects as if they \i t. : •|i7,|| |1 ^HS" 214 eoroner« 1) : '■• By the 1 and 2 P. & M., c. 13, § 5, every coroner, upon any inquisition before him found, whereby any person shall be indicted for murder or manslaughter^ or as accessory before the offence committed, shall put in writing the effect of the evidence given lo the jury before him, being material ; and shall bind over the witnesses to the next general gaol delivery to give evidence ; and shall certify the evidence, the recognizance, and the inquisition or indictment before him taken and found, at or before the trial, on pain of being fined by the court. The inquisition so returned by the coroner must be en- grossed on parchment, indented at the top, and be an exact copy of that signed by the jurors, and in words at length ; and such return is to be made under his hand and seal only, with the name of his office. — Umfrev. 312. He is to return his inquisition at the next gaol delivery ; and because he did not, the court discharged him, and set a fine of .£100.— iJ. v. Ld. JBuckhurat, Keb. 208, PI 81. By Stat. 25 G. II. "If any cor ner, who is not appointed by virtue of an annual election or nomination, or whose of- fice of coroner is not annexed to any other office, shall be lawfully convicted of extortion, or wilful neglect of his duty, or misdemeanor in his office, it shall be lawful for the court before whom he shall be convicted, to adjudge that ho shall be removed from his office." This statute is only in furtherance of the powers which before existed for their removal. By stat. 1 H. VIII. justices of assize, and justices of peace within the county, have power to inquire of, and pun- ish the defaults of coroners. Coro, 1! i- Hi': Kilter f- (■; Coroner s Fees. By 8 v., c. 38, § 1, justices of the peace, at the general quarter sessions in July (1845), are required to frame a table of fees for all services now rendered in the administra- tion of justice, and for district purposes, by any sheriff, coroner, clerk of the peace, &c. ; and the several clerks of the peace shall forthwith transmit such table to the clerk of the crown, at Toronto, to be laid before the justices of the court of Queen's Bench, and such judges are authorised bv rule in term, from time to time, to appoint the fees to be taken by such officers accordingly. § 5. The district trea- surer is required to pay such fees, when duly allowed by magistrates in quarter sessions, in the order prescribed by the59§of4&5V., c. 10. Table of Fee,. Voroner 8 Fees na ^a* n- , , '^ "' ^"f-^f iytke Jua,e, una.r tU Precept 10 summon jury Impanelling a jury ...i; ^£0 2 « r.kin,eve"r;^:SSn:r'"°^'' -'"-■•••••■::.■ S f Exerywarrant .. ..!"'|''"e«'«>> ..:::: ? ^ « Note.-— The oos*« nf • .. 5 other costs relative to ♦i!f''","'.*'<'°« "» by the 9 V . ro . and by order in c;Vn°c '^rf ^^^^ ('ith ..Costs."^ thereafter, and verified b, affida^^U^-rfSr-Vd^^^'li; J^e law .alces no provision for the pa,.ent of an, fees When the coroner receiv^a r,^+' alty, or misadventure whTch V. V^^ ^^^^«"t death, easu from the peace officer WTK^^^^ «"g''t to C '^Z the body lies dead, he is then tn t ^^V^ township, where rant, to summon a jury to ^l! ''"' ^'« Precept, or war place named, to enqS ^hTtl" ^' 5 P'^rticular ime^^d deceased came hyVi^S 2' ^""^ ^^ ^hat means the the peace officers of the nariV i '^ ^^^'^'^nt is directed to party lies dead. P"'^'^^' P^^c« or precinct, Xre the f'orm of the Warrant. Province of Canada : County of i Tr. ♦!. , - -it. ' "^ totXp?r''^^ '^"^ ^;-- oncers of the Byvmueofmy office theso „v •' u ^^'^ ^^""ty of charge and command yo*u h«f '",'^''' ^^aj^sty's n im. t * ^^ss^^mm 216 coronet* R. F., (a) and for so doing, this shall be your sufficient warrant ; and that you also attend at the time and place above mention- ed, to make a return of the names of the persons whom you shall have so summoned, and further, to do and execute such other matters as shall be then and there enjoined on you. And have you then and there this warrant. Given under my hand and seal, this day of , 18 . G. H. (L. S.) Coroner. If there be not suflScient jurors in the place, the coroner may summon them from the adjoining township or parish. — Impel/, 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. Forrn of th. Summons. Province of Canada : County of , ^ To R. M., of the township of , in the to wit. ) county of , yeoman. By virtue of a warrant, under the hand and seal of G. H., gentleman, one of her Majesty's coroners for the said county, you are hereby summoned to be and appear before him as a juryman, on the day of at of the clock in the forenoon of the same day, at the house of known by the sign of the in the township of in the said county, then and there to inquire in her Majesty's name touching the death of R. F., and further to do and execute such other mat- ters and tilings as shall be then and there given you in charge, and not to depart without leave. Herein fail not, at your peril. Dated the day of 18 . E. F., Constahh. On the day appointed, the coroner attends, and having received the return of the jurors, and precept, &c., the first thing he does, is to direct the officer to open the court by proclamation, viz., by proclaiming "Oyez" three times, and to repeat after him as follows : — «• You, good men of this county, summoned to appear here this day, to inquire for our sovereign lady the Q-ueen, when, how and by what riicans R. F. came to his death, answer to your names as you shall be called, every man at the first call, upon the pain and peril that shall fall thereon." The coroner then proceeds to call over the jury by name, marking the names of such as appear in the list. There (a) Or if unknown then say " of a man (or woman), male, or female, infant child, whose name is unknown." must h to swet their fc first, th jurors, oath he and kee eoronet* 217 must be twelve at the least to constitute a jury, but it is usual to swear thirteen or more ; the jurors then proceed to elect their foreman ; when done, he is called to the book and sworn first, the coroner at the same time saying to the rest of the jurors, " Gentlemen, hearken to your foreman's oath : for the oath he is to take on his part you are severally to observe and keep on your part." Foreman's Oath. "You shall dilipfeiiily inquire and true presentment make oi all such matters and things as shall be here given you in charge on behalf of our sovereign lady the Q,ueen, touching the death of R. F. now lying dead, of whose body you shall have a view; you shall present no man for hatred, malice or ill will, nor spare any through fear, favour or affection ; but a true verdict give according to the evidence. So help you God." The rest of the jurors are then sworn thus, four at a time : "The same oath your foreman has taken on his part, you and each of you are severally well and truly to observe and keep on your part. So help you God." After they are sworn it is usual for the coroner to give a charge acquainting them with the purpose of the meeting, as thus : — "Gentlemen, you are sworn to en(|nire on behalf of the Queen, how and by what means R. F. came to bis death; your duty is to take a view of the body of the deceased, wherein you will be careful to observe if there be any marks of violence thereon, from which and on the examination of the witnesses intended to be produced before you, you will endeavour to discover the cause of his death, so as to be able to return me ?. true verdict on this occasion." When the charge is finished the coroner goes with the jury tc take a view, and examine the body of the deceased. As soon as the view is taken 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 evi- dence respecting the fact, to Avhich he must crave parti- cular attention." Particular charges are not necessary but in particular cases arising from the fact or in the course of evidence, such as lunacy, felo de so, deodand, flight, forfeiture, &c. The deodand requires no other charge than of a value to bo 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 changed is not forthcoming, it may be necessary to add something to the general charge, as thus : — 28 n .:.'4 U ) fit ^4 I 1v 1, '• l» v,li lfl^'1 m 218 eotoner* I *; t ' m- I- »•(, ■?t»; •: I " Your charge will be further to enquire in what degree the party charged is guilty, whether of murder or manslaughter, oi of a killing in his own defence ; if you find hino guilty of murder Of manslaughter, you are then to enquire what goods and chattels, lands or tenenents he had at the time of the act committed or at any time since; if you find the fact to be of a justifiable homi- cide, from inevitable necessity, or in defence of his own person, life, or property, or where a suspected person doth fly and resist the proper officer, and is from necessity slain because he could not be otherwise taken : this flight and resistance presumes a guilt, and will incur a forfeiture ; and therefore you are to en- quire whether, in either of the instances the party fled for it, this is a presumptive confession of the charge ; and you are then to enquire of his goods and chattels, but not lands or tene- ments, in the same manner as if you had found him guilty." The latter charge may be given after the evidence taken, £0 as 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 pio&ont examine and shew the wound. After the general charge is given to the coroner, the oflBcor then calls silence, and repeats after the coroner thus : — "If any one can give evidence on behalf of our soverojrrn lady the Q,ueen, 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 following oath : — "The evidence vou shall give to this inquest on behalf of our sovereign lady the Queen, touching the death of R. F., shall be the truth, the whole truth, and iiothinij but th.e truth. So held you God." The evidence should be taken down in Avriting, (a) and as nearly as possible in the words of the witness. The examinations should be entitled thus : — Province of Canada: County of ) Informations of witnesses severally taken and to wit. ) acknowledged on the behalf of our soveroifrn lady the Q,ueen, touching the death of R. F., at the dwelling house of J. B., known by the name or sign of the , in tliu township of , in the county of , on the day of in the year of the reign of our sovereign lady Uueen Vic- toria, &c., before G. H., Esquire, one of ilie coroners of the said county, on an inquisition then and there taken on view ot (o) And in cases of "murder" or "manslaughter,"' in the presence of the party accused, if apprehended.— See ante 4, 6 V., c. 24, § 4, page 209. the bod] to wit ; A. B., being sv Befori over to } the evide of the pa the witne to ask th( material, witness hi coroner wj ledged th before G. then at th( informatioi day and yc G. H., con If the ov the jury to take and r( a recognizai "Gentlem our sovereig on yourgooc ty's use, i,j)(, appear here,' instant, at there to mak fteen, touch have nlread^ The coron Gentlemen requires you place) on the forenoon p contained in The coroii bury the bod the officer thus ; — •'Oyez ! oye more 'to do at county, may again (or . /le, a( ,• 'ii eotonet* 219 the body of the said R. F., then and there lying dead, as follows, to wit: A. B., of the township of , in the said county, yeoman, being sworn, saith, &c. Before the witness signs his examination it should be read over to him, and he should be asked " if that is the whole of the evidence he can give." He then signs it to the right hand of the paper. The coroner generally asks the jurors befove the witness signs, whether they have any questions for him to ask the witness ; and if any be asked, and the answer prove material, it should be added to the deposition. When the witness has signed his name to the examination taken, the coroner writes thus, to the left hand side : " taken and acknow- ledged the day, year, and at the place above mentioned, before G. H., coroner ;" or if there are several witnesses, then at the end of the last information, thus, " all the above informations were severally taken and acknowledged on the day and year and at the first place above mentioned, before G. H., cororer." If the evidence be not all taken, the coroner may adjourn the jury to another day, to the same or another place, to take and receive other evidence, first binding the jurors in a recognizance to appear at the adjournment, thus : — " Gentlemen, you acknowledge yourselves severally to owe to our sovereign lady the Clueen, the sum of ten pounds, to be levied on your goods and cliattels, lands and tenements, for her Majes- ty's use, vjwn condition that you and eacli of you do personally appear here again (or other appointed place) on the day of instant, at of tlie clock in the forenoon precisely, then and there to make further enquiry on behalf of our said lady the Q,een, touching the death of the said R. F., of whose body you have already had the view. Are you all content?" The coroner then adjourns the court, thus : — Gentlemen, the court doth dismiss you for this time: but requires you severally to appear here again (or at the adjourned place) on the day of instant, at of the clock in the forenoon precisely, upon pain of £10 a man, on the condition contained in your recognizance entered into. The coroner may in his discretion grant his warrant to bury the body of the deceased to prevent infection. Then the officer adjourns the court by making proclamation, thus : — "Oyez ! oyez ! oyez ! all manner of person who have any thing more to do at this court before the dueen's coroner for this county, may depart hence and give their attendance here again (or <. her adjourned place) on the day of '■' 4^ .,*. m m 220 €ovontv. m :!,;Bv J-v . , ' \i^ •!■ I ■?? "i ' ! ' ; j 1 ': ! ' ■' ill' '^ \ ■ ! il'. ■ f 'i: vM'^w R instant, at of the clock in the forenoon precisely. God save the Q.ueen." The coroner will make a proper entry in his minutes of the recognizance and the adjournment, &c. When the jury are met at the adjourned time and place, the oflScer opens the court by proclamation as in the first instance, with this addition : — •' And you, gentlemen of the jury, who have been empannelled and sworn on this inquest to enquire touching the death of R. F., severally answer to your names, and save your recognizance." If foreigners are examined as witnesses, the coroner is to have an interpreter, who is to be sworn, thus : — •' You shall well and truly interpret unto the several witnesses here produced on behalf of our sovereign lady the dueen, touching the death of R. F., the oath that shall be administered to them, and also the questions and demands which shall be made to the witnesses by the court or jury, concerning the matters of this enquiry, and you shall well and truly interpret the answers which the witnesses shall thereunto give. So help you God." He then interprets the oath to the witnesses, and their answers, which the coroner takes down in writing in the same way as other depositions. After the additional evidence has been taken down in writing and subscribed by the witnesses, the coroner then sums up the whole of the evidence to the jury, at the same time explaining to them the law upon the case when necessary. He then desires the jury to consider their verdict. If thoy withdraw to consider their verdict, the officer is sworn to take care of them, thus : — " You shall well and truly keep the jury upon this enquiry without meat, drink, or fire : you shall not suffer any person to speak to them, nor you yourself, unless it be to ask them whether they be agreed to their verdict, until they shml bo agreed. So help you God." The officer takes them to a convenient room, and attends the door on the outside until they arc agreed ; when agreed, they return, and the coroner calls over their names, and afterwards asks them if they be agreed in their verdict ; if the foreman replies in the affirmative, the coroner asks them "who shall say for you?" to which they reply '' oin- foreman." Then the coroner says, " Mr. Foreman, how do you find that 11. F. came to his death, and by what meaii'j '" The foreman then delivers the verdict, which the coronci records. It seems that twelve at least must agree if there be no division ; their voic upwards collects t the minor the foremj verdict of draws up seal for hii jurors thei coroner's n The inq addresses t. " Gentlen and as I ha mbstance of If it is a binds all pr( prosecute an He sliould (generally ti prosecute. l^ the gra may still be i The usual the parties bj " You J. R* tooursovereiji lawful money I respective goo recognizance, ilie condition / The coronei Form of ( I'fiOVINCE County of to wit. ypoman, person ners for the sa to our sovereign and lawful mon. '"s goods and c nizance to her condition followl itovontv. 221 division ; but if there be a division, the coroner then collects their voices, beginning with the last on the panel an^l nsing upwards to the foreman, who declares last. The coroner collects the numbers and declares the majority into which the minority sinks, and the finding (which is to be given by the foreman) is from necessity 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 : — " Gentleman, hearken to your verdict, as delivered by you, and as I have recorded it. You find »fcc." (7/fre repeat the mhstance of the verdict^. If it is a case that will come to the assizes, the coroner binds all proper persons over in a recognizance to appear, prosecute and give evidence. He should iu the first place bind over one of the parties (generally the next of kin to the deceased) to appear and prosecute. If the grand jury should return, "no bill," the party may still be arraigned and tried on the coroner's inquisition. The usual manner of taking a recognizance is by calling the parties by name and thus addressing them : " You J. R., E. D., and G. B., severally acknowledge to owe to our sovereign lady the Q,uecn, the sum of each of good and lawful money of this province, to bo made and levied upon your respective goods and chattels, lands and tenements, by way of recognizance, to her Majesty's use if default shall b. made in the condition following." (/'o/' coiuUti'ia sec hrfow.') The coroner then says " arc you content?" Form of a Recognizance to Appear and Piosecute. Province of Canada: County of ) Ho it remembered that on the day of to wit. \ in the year of our Lord J. U. of vpoman, personally came before me one of her Majesty's coro- ners for the said county, and acknowledged himself to owe to our sovereign lady the Queen, tiie sum of , of good and lawful money of this province, to be made and levied on his goods and chattels, lands and tenements, by way of recog- nizance to lier Majesty's use, if default shall be made in the condition following: ,;!' n m \m \ 'ir '- ■■■■■ ,KT P! mii 222 eoroner* t. :WUW km: ( '■•!■■; ■ ; 1^. ' f • ; ■■it- !■ i • M! it;] ■;'' ^i ■ J') 1 V. The condition of this recognizance is such, that if the above bounden J. R. do personally appear at the next session of general gaol delivery to be holden in and for the county of , and 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 novk^ in custody for the wilful murder of A. B. late of &c., and that the said J. R. do then and there personally appear and 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. do per- sonally appear at the said general gaol delivery, and there prosecute the said C. D. on such indictment, and do then and there give evidence to the jury that shall pass on the trial of the said C. D. touching the premises, and in case the said bill of indictment shall be returned not found, that then the said J. R. do personally appear at the said general gaol de- livery, and then and there prosecute and give evidence to the jury that shall pass on the trial of the said C. D. upon an in. quisition taken before mc, one of her Majesty's coroners for the said county, on the view of the Ijody 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 acknow. ledged this day of before me G. H. Coroner. Form of a Recognizance to appear and give Evidence. Province of Canada : County of ) Be it remembered that on the day of to wit \ in the year of our Lord , S. R. of yeoman, E. D. of blacksmith, and G. B. of , mason, personally came before mc one of her Majesty's coroners for the said county, and severally acknowledged themselves to owe to our sovereign lady the Q,ueen the sum of of good and lawful monej'^ of this province, to be made and levied on their respective goods and chattels, lands and tenements, by way of recognizance, to her Majesty's use if default shall be made in the condition following : " The condition of this recognizance is such, that if the above bounden S. R., E. D. and G. B. do severally appear at the next session of general gaol delivery to be holden in and for the said county, 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 the said county, labourer, for the wilful murder ol R. F. late of &c. And in case the bill of indictment be found by the grand jury a true bill, then if they the said S. 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 indictment shall be returned by the grand jury afore- said " not do severa] and then i the trial o: one of hei of the bo without Ici remain in ] before If one oi band not p not to be b( ment," thus of imprisoni Jition; buti: the appearai an infant, (o parent or mi appearance. Form oj Pkovince I County of to wit. and E. P., his bound by recc follows, that is fui money of tl and chattels, J, to her Majesty of imprison mel Jition foilowii such, that i( t siiall personally ','22.) ^ Form of Mecog for the I Province of County of to wit. lownship of «fJ-J. hisappre rae, one of her J\ ^inowledged h\m I'le sum of leWed on Jiis goo, of recognizance, "1 ine condition A eotonet* 223 said " not found," then if they the said S. 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 her Majesty's coroners for the said county, on the view of the body of the said R. F., 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 G. H. Coroner. If one of the witnesses be a married woman, and the hus- band not present to enter into a recognizance for her, she is not to be bound in any sum penal, but " on pain of imprison- ment," thus : S. the wife of J. S. of, &;c., labourer, on pain of imprisonment, in case she shall make default in such con- dition ; but if the husband be present, he is also to be bound for the appearance of his wife ; and if the witness happen to be an infant, (or minor under the age of twenty- one years,) the parent or master should be bound in a recognizance for his appearance. Form of a Recognizance by Husband and Wife. Province of Canada : County of ) Be it remembered that J. P. of the town- to wit. \ ship of in the county of , yeoman, and E. P., his wife, severally acknowledged themselves to be bound by recognizance to our sovereign lady the Queen, as follows, that is to say, the said J. P. in the sum of £20 of law- ful money of the province of Canada, to be levied on his goods and chattels, lands and tenements, by way of recognizance, to her Majesty's use, and the said E. P. his wife, on pain of imprisonment, in case default shall be made in the con- dition 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 Recognizane*', Vfty*^ '222.) Form of Recognizance by a 3Ia8ter, {parent or guardian,) for the appearance of an apprentice or minor. Province of Canada : County of ) Be it remembered, that on the day of to wit. ) in the year of our Lord J. P., of the lownship of in the said county, shopkeeper, the mainpernor of J. J. his apprentice (or son), an infant, personally came before me, one of her Majesty's coroners for the said county, and ac- knowledged himself to owe to our sovereign lady the Queen, ihe sum of good and lawful money of this province, to be levied on his goods and chattels, lands and tenements, by way of recognizance, to her Majesty's use, if default shall be made in the condition following. '11=115^1 224 a^ovontt. i: • > .V \i-J t :i. ;'■ I: m' K' tt ■•£'■ !■■i^':^^:r■■ m The condition of this recognizance is such that if the above named J. J. the apprentice (or son) of the said J. P., do appear at the next session of general gaol delivery to be holden in and for the said county, and (hen and there give evidence upon a bill of in- dictment to be then and there preferrer' to the grand jury, against C. D. late of the township of in the said county, labourer, for the Avilful murder of R. F. late of &c. And in case the bill of indictment be found by the grand jury a true bill, then if the said J. J. do 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 indictment shall be returned by the grand jury aforesaid '• not found," tiien if the said J. J. do appear al the said session of general gaol delivery, and then and there give evidence to tlie jury that shall pass on the trial of the said C. D. upon an inquisition taken before me, one of her Majesty's coroners for the said county, on the view of the body of the said R. F., and not depart the court without leave, then this recognizance to be void, otherwise to remain in full force, '"-^ken and acknowledged this day of before me G. H. Corowu; ihe business of the court being concluded, the officer then makes procljt.mation thus : — " Y ^ '00(1 men of this township, who have been empan- nciled and nw^rn of the jury to enquire for our sovereign lady the Queen, touching the death of 11. F., and who have returned your verdict, may now depart hence and take your ease. God save the Queen." The following forms of inquisitions, summonses, warrants, &c., are transcribed from Impey's Office of Ooroner. Form of an Inquisition on a Lunatic. Province of Canada : County of } An inquisition indented, taken for our sove- to wit. ij reign lady the Q,ueen, at the township of in the county of the day of in the year of tho reign of our sovereign lady Queen Victoria, &c., before G. H,, gentleman, one of the coroners of our said lady the Q,ueen lor the said county, on view of the body of R. F., then and there lying dead, upon tlieoathof A. B.,&c., (Jivrc insert the names of all the Jurors sirorn,) good and lawful men of the said township, ilulv chosen, and who being thfcn and there duly sworn and clmrf^eil to enquire for our said lady the (iueen, when, where, how, and after what manner, the said R. F. came to his death, do, upon their oath pay, that the said R. F. not being of sound mind, memory and understanding, but lunatic and distracted, on tiiu day of in the year aforesaid, at the township aforesaid, in the county aforesaid, to wit, into the river Humber then- did cast throwing then and tion and died; an say that tJ being of ; and distra as well tJj inquisitior at the piac That the ; eyes, but be devil, on the county a and of our s ousJy, wiJfnIJ assault, and t "ater, conimc county aforesfl of whicJi sait "•aters of tlie '''■oivned, of V R. F. then an said, upon tJu manner and b oHiis malice a 'lie peace of ou '''at the said R so as aforesaid 'finds and tenei t'le knowledge "me of doinTr said, iiad good '"'I'lisition ann •^'aims the sam, ^J^on an TJiat W. c aforesaid, carina county aforesaid ;'^^'''^ , beiri ff. and Joade "'"t the said A. 1 29 {i €ovontt. 225 (lid 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 suffoca- tion and drowning, he the said R. F. then and there instantly died ; and sc the jurors aforesaid, upon their oath aforesaid, do saythatthesaidR.F. in manner and by the means aforesaid, not being of sound mind, memory, and understanding, but lunatic and distracted, did drown and kill 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.J CD. [L. S.] E. F. [L. S.] &c. Felo de se, by Droivning. That the said R. F., not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on , with force and arms, at the township aforesaid, in the county aforesaid, in and upon himself, in the peace of r4od, and of our said lady the Queen, then and ther« 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 aforesaid, did violently cast and throw himself, by means of which said casting and throwing, ho, the said R. F., in the waters of the said river, was then and there sufTocatod and drowned, of which said suffc)cation and drowning, he the said R. F. then and there instantly died. And so the jurors afore- said, upon their oath aforesaid, do say, tliat the said R. F. in manner and by the means aforesaid, feloniously, wilfully, and of his malice aforetliouglit, did kill and murder liimself, against the peace of our said lady the Queen, her crown and dignity; and ihat the said R. F., at the time of the said felony and murder, so as aforesaid done and committed, had no goods or chattels, lands and tenements, within the said county, or elsewhere, to the knowledge of the said jurors; — (or that the said R.F. at the time of doing and committing of the felony and murder afore- said, had goods and chattels contained in the inventory to this in(|uisition annexed, which remain in tlie 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, in the county aforesaid, carman, on , at the township afore'=iaid, in the coimty aforesaid, in a certain public street or highway, there called , being negligently driving in a cart, drawn by one liorse, and loaded with twelve barrels of flour; it so happened, that the said A. P. l)eing in tlie street and highway aforesaid, was 29 m ;-'nv I. -i. f^: ;'i M 226 €ovon$v* i ft? ¥'■■ li I- - t ] ;, "■;.■! ; i in- ^ ''Wm y- ;■ then and tliere accidentally, casually, and by misfortune, forced to the ground by the horse so drawing the said cart as aforesaid, and the said cart so loaded as aforesaid, was then and there, by the said horse violently and forcibly drawn to and against tlu; said A. P., and the wheel of the said cart, so drawn and loaded as aforesaid, did then and there accidently, casually and by misfor- ture, violently go upon, and pass over the breast and body of tliu siad A. P., by means whereof the said A. P., from the weiglu 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 said 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 mis- fortune came to his death, and not otherwise; and that the said liorse, cart, and loading were the cause of the death of the said A. P., and that the said twelve barrels of flour are of the vaiuu 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 Canada, and are the property and in the possession of D. E. of yeoman, or of his assigns. In witness, &c. (a) If it be intended to impose a nominal fine or deodand only, then say, " And that the said horse, cart, and loading are of the value of five shillings of lawful money, &c." (as hr/ore.) By a Fire. — That on , at, &c., the warehouse of C. D.. situate in the same township and county, casually took fire, and the said A. B., being then and there present, aiding and assist- ing to extinguish the skid fire; it so hapj)ened, that a piece of timber, by tlie force and violence of the said fire, then and there accidentally, casually, and by misfortune, fell from the top o| the said warehouse, in and upon the head of him, the said A.Ii by reason whereof, he the said A. B. then and there received ;i mortal fracture on the head of him, the said A. B., of wliicli said mortal fracture, he, the said A. B., from the said day of , in the year aforesaid, until the day of , in tlie year aforesaid, there did languish, and languishing did live; on which said day of , in the year aforesaid, at the town- ship aforesaid, in the county aforesaid, he, the said A. 13., 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 it is of the vahie 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 (a) The amount is generally regulated by the nature of the case ; if purely accidental the deodand is nominal : but in cases of gross or culpable negli- gence the amount is accordingly. eototier. 227 aforesaid, accidentally, casually, and by misfortune, was in the waters of the said river, then and there suffocated and drowned ; of which said suflbcation and drowning:, he, the said A.B. then and there instantly died. And so the jurors, &c. Katural Death. — That the said A. B., on and for a lona time before, at, &c., did labour and languish under a grievf ;is disease of body, to wit, an asthma; and that on the said day of , in the year aforesaid, at, &c., she the said A. \^. 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 certain 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 ailing and infirm, and not able to work ; that he had no marks of violence appearing on his body, and departed this life 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 wit, in a certain wood, there called the long wood, was found dead. That the said man, unknown, had no marks of violence 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, &c. By Excessive Drinkinr/. — That the said A.B.,on,&c., at, &c., departed this life by excessive drinking of ardent spirits, and i!Ot from any hurt, injury or violence done or committed by any person or persons whatsoever to the knowledge of the jurors. In witness, &c. Indemenci/ of the Weather. — That the said man, unknown, was found dead in a certain lane, situate in the said township, commonly called , that the said man unknown, had no murks of violence appearing on his body, but died through want and inclemency of the weather, and by no violent ways or means whatsoever, to the knowledge of the said jurors. In witness, &c. Death in I^risnn. — That the said A. B, being a prisoner for debt in the gaol of , at, &r., in the gaol aforesaid, departed this life by the visitation of God, in a natural way, to wit, of a fever, and not otherwise. In witness, &c. FaUinif out of a Boat. — That the said C. D., on, &c., being in a certain boat with a certain sail and oars, the property of him, the said C. D., at, »fcc., it so happened, that by the violence of the wind and waves, the said boat was then and there acciden- tally, casually, and by misfortune, upset, by means whereof the said C. D. was then and there accidentally, casually, and by misfortune cast and thrown into tlie waters of the said « ! #i'.' .«' .:i\-m ■^^ \ • :*-:!■■ uSr.V Iff f ' I;-'! , . ;■ ■ ^']- ': \ 1 f ( I 1, :it : ■ 1 '. ?v , I'll '». ■ '; " I' ' . ■ . . j I. If H- . . ■ j I .. -^ 228 eoronet* liver, anil in the waters of tlie said river was tlien and there' suffocated and drowned, of which said suffocation and drowning, he the said C. D. then and there instantly died. And so "the jurors, &c., and that the said boat, and the sail and oars tliereof, did occasion the death of the said C. D., and are of the value of 10s., and in the possession of , or liis assigns. In witness, &c. Murder.— Thai C. D., late of, &c. labourer, not having the fcnv of God before his eyes, but being moved and seduced by the instigation of the devil, on, &c., with force and arms, at, &c., in and upon the said A. B., in the peace of God, and of our said lady the aueen,then and there being, feloniously, [ivil/ullif and of his malice oforcthought,'] did make an assault, and tlmt the said C. D. with a certain iron poker of the value of Is., which the said C. D. then and there had and held in both his hands, him the said A. B., in and upon the head of him the said A. B., then and there, divers times, feloniously, [wil/nlli/ and of his malice aforethought,'] 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 said said A. B., with the 'iron poker aforesaid, one mortal fracture of the length of two inclips, of which said mortal fracture he the said A. B. then and there instantly died. And so the jurors aforesaid upon their oath aforesaid, do say, that the said C. D. him, the said A. B. in manner, and by the means aforesaid, feloniously, [icllfidJi/, unil of his malice aforethought,'] did [li'lll and «w?y/<>',] against the peace of our lady the Queen, her crown and dignity, and that the said C. D. after the doing and committing of the said felony and [inurder] aforesaid, withdrew and fled for the same, and that neither at the time of the doing and committini; thereof, nor at any time since, lie the said C. D. had any goods or chattels, lands or tenements within the said county or else- where, to the knowledge of the said jurors. In witness, &c. Mauslanfjhter. — The form is precisely the same, except that tlip words " wilfully and of his malice aforethought," are to be left out, and the words " feloniously did /•/// / 'S'njoca single womai female child, the township ; child, alone a God, did bri laws of this p not having the on the same the township j said newborn . trod and of oi ! feloniously, w make an assau born female ba; cloth of novalu malice aforetho said wra])j)ing bastard child, id born female bas smothered, of v said new-born |''«fl ; and so th "'^'', tJie said no means aforesaid eotonet. 229 ing 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 tlic peace of God and of our said lady the Uueen then and there being, violently did make an assault, and him the said C D., without any cause or provocation whatsoever, did then and there beat, abuse and evilly entreat, whereupon the said C D. for the 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 for him to do ; and the said A.B. did then and there receive against the will of him the C. D., by the falls and blows which he the said A. B. then and there sustained by him the said C. D's so defending himself as aforesaid, divers mortal bruises, in ar.d upon the head, back and loins of him 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 aforesaid, did languist; &c., (as in/ormcr precedent); and so the jurors aforesaid, upon their oath aforesaid, do say that the said C. D. him the said A. B. in the defence of him- self the said C. D. in manner and by 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 witness, &c. Jh/ Snffoeating a BaMard. — That A. single woman, on &c. , being then female child, afterwards, to wit, on the same day and year, at the township aforesaid, in the county 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. B. not having the fear of God, «&c., (as before), afterwards, to wit, on the same day and year aforesaid, with force and arms, at the township aforesaid, in the county aforesaid, in and upon the said newborn female bastard child so alive, and in the peace of God and of our said lady the Uueen then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault, and that the said A. B., her the said new- born female bastard child with both her luinds, in a certain linen cloth of no value, then and there feloniously, wilfully and of her malice aforethought, did wrap up and fold, by means of which said wrapping up and folding of her the said new-born female bastard child, in the linen cloth aforesaid, she the said new- born female bastard child was then and there suffocated and smothered, of which said suffocation and smothering she the said new-born female bastard child then and there instantly died ; and so the jurors aforesaid, do say that the said A. B. her, the said new-born female child, in manner and by the means aforesaid, feloniously, wilfully and of her malice aforc- B., late of &c. and there big with I iV r I ' »' i ii i--"i '? 1 i' • li 230 €ovontv. tlinuglii, did kill and murder, against the peace of our Kaid lady^tlio Uuecn, her crown and dignity, [flight, forfeiture, — as before]. In witness, &c. yyy throwin;/ down n I 'i-ia/.— And tliat 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, or necessary house, there situate, then and there feloni- ously, wilfully and of lier malice aforethought, did violently cast and thrown down, by means wliereof he, the said new-born male child, in the soil or filth then and there contained in tlie said privy or necessary house, was then and there sufl^oc and smothered, of which said suffocation and smothering lit said new-born male child then and there instantly died ; ami so the jurors, &c. [as before] [flight, forfeiture — as before]. In witness, &c. Ar/ainsf. Ai'drrs and Abrftors, in, murder or inandaiKjht'r. — And the jurors aforesaid, upon their oath aforesaid, do further shv that S. W. late of &c. laboiirer, and G. W., late of the same place, labourer, at tlic time of the doing and committing of tiic felony and murder, (^orfc/onj/ and maiixfawj/itrr) aforesaid, wero present, aiding, abetting, assisting, comforting and maintaining- the said C D. to kill and murder (or kdland, ufa//) the said A. B., in manner aforesaid ; and so the jurors aforesaid, upon their oath aforesaid, do say that the said C D. and E. F. him, tlic said A. B., in manner and by the means aforesaid, feloniously, wilfully and of their malice aforethought, did kill and mu' ' -V, (^(tnd III cascx of ludHxlaaiflitcr saiy, fdoniousli/ did kill and against the peace, &c., {cundude withjtii/ht and forfcitnri witness, &c. Form of the Warrant to Summon a Jury. Province of Canada : County of to wit. ofticers of the peace in and for the said county. By virtue of my ofTicc, those are in lier Majesty's namt' to charge and command you, that on sight hereof j'ou summDn and warn twenty-four able and sufficient men of your towii.ship, personally to be and appear before me, on the day of at o'clock in tlie forenoon, at tlie house of A. B., culled or known by the name or sign of the situate at in the said township, then and there to do and execute all such tliinj^s that shall be given them in charge on behalf of our sovereii^m lady the Queen's iVlajesty, touching the death of R. F., and tor so doing this shall be your sufficient warrant : and that yon also attend at the time and place above mentioned, to make a return of the names of the persons whom you have so sum- moned, and further to do and execute such other matters as } To the constables of the township of , in j tlie county of , and all other her Majesty's shall be there thi; day of Province County of to wit ty'scoronc ulJy to be of at house of in the jesty's bel and execut< there giv^r Herein fail year of our ] N,B.— The I ffritton sumnio Province of County of to wit. to -aW otJiers \ VVliereas I "•n'ten, liave •'I sound min, distracted, s »lio now lies ( ■■iccording to J (aufuJiyperm 'or so doing t and seal tlio Warrant to I'rovi.nce of C bounty to wit. Wiiereas b '^^ajt'sty's coroi "": year o '"'•'a, at the tou .^ody of J. D., '"(|uisition nanH wiJfuJly and of '"•nself («,. the (i^ovoner* 231 I shall Le then and there enjoined you, and liavo you then and there this warrant. Given under my hand and iseal, this day of 18 . Ct. H., Coroner. Form of the Constable's Summons. Province of Canada : County of ) By virtue of a warrant under tlie liand and to wit. ) seal of G. H., gentleman, one of lier Majes- ty's coroners fortius county, you are liercby summoned person- iiUy 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 known by the sign of the in the township of in the said county, then and there to enquire in her Ma- jesty's behalf, touching the death of R. F., and further to do and execute such other matters and things as shall be then and there given you in charge, and mt to depart without leave. Herein fail not at your peril. Dated the day of in the year uf our Lord 18 . Comtahlc. N^. — Tbo Coroner should furnish a sufficient number of printed or written summonses to the constable for service on the Jurors. Warrant to Bury after a View. Province of Canada : County of 1 '^^ ^^^^ minister and chuvclnvardens of the to wit. ) township of , in the coun y of , and to all others whom it may concern. Whereas I, with my inquest, the day and year hereunder written, have taken a view of the body of J. D., who not being of sound mind, memory and understanding, but lunatic and distracted, shot himself, (c*;* mjrccaUij tu /li<- Ji,iil!)i(j itfthcjuri/)., who now lies dead in your township, and have j)r()ceedod therein according to law. These arc therefore to certify that you may lawfully permit the body of the said J. D. to be buried : and tor so doing this shall be your warrant. Given under my hand and seal the day of G. H., Coroner. Warrant to Bury a felo de se, after Inquisition found. Province of Canada: County ) To the churchwardens and constables of the to wit. ) township of , in the county of Whereas by an inquisition taken before me, one of her Majesty's coroners for the said county, this day of , in the year of the reign of her present Majesty Q,ueen Vic- toria, at the township of , in the said county, 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 .T. D. feloniously, wilfully and of his malice aforethought killed and murdered himself (as the findiwj may hey, tliese are therefore, by virtue of 232 eotonen S'xi ill' ■ W' > Irfeii ll:i'^ff"^ my office, to will and require you forthwith 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. H., Coroner. N. B. — The last form of warrant should not be directed 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. * e' f' I Churchwardens. I. D. Vonstahle. Warrant to Bury without a View, where no effectual Inquest can be taken. Province of Canada : County of ) To the minister and churchwardens in tlie to wit. J township of , in the county of Whereas I am credibly informed that on the day of , the body of a new born male child was found dead in a coffin, in the churchyard of the said township, and that there is not any evidence to be found to make appear to the 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 the county charge you 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 G. H., Coroner. Another form of Warrant to Bury without a view. Province of Canada : County of ) To the minister ami churchwardens tr tlu> to wit. ^ township of , in the county of Whereas I am credibly informed, that on the day of 'nstant, A.B. died suddenly in the street, to wit, (name thrshrrt) in the township of , in the said county, as supposed by u fit of an apoplexy or other sudden visitation of God, and tliai he came not to his death by any violent means whatsoever. These are therefore to certify that in ease of the county 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 • G. H., Corotier, Warrant Proving County of to wit. Whereas the bod in the river and that no man unknov pear to a ju came to his of the count) unknown to Given under w Province c County of to wit. Whereas, cc Majesty's core that the body c your township, but violent deai of the said G. ] ners for the sai inquisition mig said G. R. bef( are therefore, b charge and com" 'he said G. R. t said township, t and proceed the ml answer the and seal, the Warrani Province op Cai County of to wit. jesty's peace offil Whereas, by a] Majesty's coronei . in the said 1 and there lying d 30 Coroner* 233 Warrant to Bury without a View, when the Body was found Drowned. Province of Canada : County of ") To the minister and churchwardens of the to wit. J township of , in the county of Whereas I am credibly informed that on the day of the body of a man unknown wap taken up dead, and floating in the river , in the township of in the said county, and that no marks of violence do appear on the body of the said man unknown ; and whereas there is no evidence to make ap- pear 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 county charge you may permit the body of the said man unknown to be buried : and for so doing this is your warrant. Given under my hand and seal, this day of G. H. Coroner. Warrant to take up a Body interred. Province of Canada: County of , > To the minister and churchwardens of the to wit. \ township of , in the county of Whereas, complaint hath been made unto me, one of her Majesty's coroners for the said county, on the day of that the body of one G. R. was privately and secretly buried in your township, and that the said G. R. died not ot a natural, but violent death : and whereas no notice of the violent death of the said G. R. hath been given to any of her Majesty's coro- ners for the said county, whereby, on her 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 required. These are therefore, by virtue of my office, in her Majesty's name to charge and command you, that you forthwith cause the body of the said G. R. to bo taken up and safely conveyed to in the said township, that I with my inquest, may have a view thereof, and proceed therein according to law. Herein fail not, as you will answer the contrary at your periL Given under my hand and seal, the day of G. H., Coroner. Warrant to Apprehend a Person for Murder. Province of Canada : County of ) To the constables of the township of , in to wit. ) the county of , and all other her Ma- jesty's peace officers in the said county. Whereas, by an inquisition taken before me , one of her Majesty's coroners for the said county, this day of , at , in the said coi|nty, on view of the body of G. R., then and there lying dead, one C. D., late of , in the said county^ 30 '' ' I <.«): i t I. m :i :--:'!U^ 234 €ovomv^ ^■■:'.. |- ■ifr i'^*', ■ l^ir.': Jl- i. i: hi; ■ifi Jin. iJi./ ■ V... A <•' :fff '■' f>. ft ?, :'■' -ij. '?' '■ labourer, stands charged with the wilful murder of the said G. R., these are, therefore, by virtue of my office, in her Majesty's name, to charge and command you, and every of you, that you or some one of you, without delay, do apprehend and bring before the said coroner, or one of her Majesty's justices of the me peace of the said county, the body of the said C.D., of whom ou shall have notice, that he may be dealt with according to And for your so doing, this is your warrant. Given la aw. G. H., Coroner. under my hand and seal, this day of Commitment for Murder. Province of Canada: County of » ? To the constables of the township of in to wit. ) the county of , and all other her Majesty's officers of the peace for the said county, and to the keeper of her Majesty's gaol, at , in the said county. Whereas, by an inquisition taken before me, one .of her Majesty's coroners for the said county, the day and year hen; under-mentioned, on view of the body of R. L., lying dead in the said township of , in the county aforesaid, J. K., late of the township of , in the said county, labourer, stands charged with the wilful muruc. of the said R. L. These are, therefore, by virtue of my office, in her 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 her Majesty's gaol at aforesaid, and safely to deliver him to the keeper of the said gaol ; and these are like- wise by virtue of my said office, in her Majesty's name, to will and require you, the said keeper, to receive the body of the said 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 your so doing this shall be your warrant. Given under my hand and seal, the day oi G. H., Coroner. Summons to a Witness. Province of Canada : County of t ? To A. P., of the township of , in the to wit. ) county of , yooman. Whereas I am credibly informed that you can give evidence on behalf of our sovereign lady the Queen, touching the death of A. P., now lying dead in the township of , in the said county. These are, therefore, by virtue of my office, in licr| Majesty's name, to charge and command you personally to be and appear before me, at the dwelling-house of J. R., known us | the sign of , situate at , in the said township, at o'clock in the forenoon, on the day o§ instant, then and! there to give evidence and be examined on her Majesty's hehahj before me not, as y( under my Cotontt* 235 before me and my inquest touching the premises : herein fail not, as you will answer the contrary at your peril. Given under my hand and seal this day of G. H., Coroner. yf arrant for Contempt against a Witness for not appearing to give evidence. Province of Canada : County of » 7 To the constable of the township of , to wit. J in the county of , and to all other her Majesty's officers of the peace in and for the same county. Whereas I have received credible information that A. P. of the township of , in the said county, can give evidence on behalf of our sovereign lady the Queen, touching the death of C. D., now lying dead in the said township ; and whereas the said A. P. having been duly summoned to appear and give evidence before me and my inquest touching the premises, at the time and place in the said summons specified, of which oath hath been duly made before me, hath refused and neglected so to do, to the great hindrance and delay of justice. These are, therefore, by virtue of my office, in her Majesty's name, to charge and command you, or one of you, without delay to apprehend and bring before me, one of her Majesty's coroners of the said county, now sitting at the township aforesaid, by virtue of my said office, the body of the said C. D., that he may be dealt with according to law: and for your so doing this is your warrant. Given under my hand and seal the ' day of . G. H., Coroner, Warrant to Commit a Witness refusing to give Evidence. Province of Canada : County of , ? To the constahles of the township of in to wit : \ the county of , and all other her Majesty's officers of the peace in and for the county aforesaid, and also to the keeper of the gaol in the said county. Whereas I heretofore issued my summons under my hand, directed to A. P. of, &c., requiring his personal appearance before me, then and now one of her Majesty's coroners for ;he said county, at the time and place therein mentioned, to give evidence and be examined on her 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 me ; 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 there- of, hath been apprehended and brought before me, now duly' sitting by virtue of my office, and hath been duly required to give evidence, and be examined before me and my inquest on ^■i'/^ \'^ ^'' ... . i- w il i V in ij' ijr -1. li [■ i: 236 iSDoroner* » '; her 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 her Majesty's name, to charge and command you, or anyone of you, the said constables and officers of the peace in and for the said township and county, forthwith to convey the body of the said A. P. to the gaol of the said county, at the city of , in the said county, and him safely to deliver to the keeper of the said gaol : and these are likewise by virtue of my said office, in her Majesty's name, to will and require 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 evi- dence, and be examined before me and my inquest on her 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 warrrant. Given under my hand and seal, the day of G. H., Coroner. Commitment of a Witness for refusing to sign his Information. Province of Canada : County of , ? To the constable of the township of In the to wit. ^county of , and all other her Majesty's officers of the peace in and for the said county, and also to the keeper of the gaol of the said county. Whereas A. B. of , is a material witness on behalf of our sovereign lady the Q,ueen, against J. P., late of the township of , in the county aforesaid, labourer, now charged before me, one of her Majesty's coroners for the said county, and mv inquest, with the wilful murder of C. D., there now lying dead ; and whereas the said A. B. at the time of my inquiry, on view of the body of said C. D., how and by what means lip the said C. D. came by his death, hath personally appeared before me and my said inquest, and on her Majesty's behalf hath given evidence and information on oath touching the pre. mises, which said information having by me been reduced into writing, and the contents therec'" by me, in the presence of the said inquest, openly and truly read to him the said A. 13., who doth acknowledge the same to be true, and that the same doih contain the full substance and effect of the evidence by him given before me to my said inquest, and the said A. B. having by me been requested and desired to sign and set his hand to his said testimony and information, and to acknowledee the same as by law is required, jfet, notwithstanding, the said A. B. doth wilfully and absolutely refuse so to do, in open defiance of law, and to the great hindrance of justice. These are, there- fore, by virtue of my office, in her Majesty's name to charge and command you, or some one of you, the said constables a^oxinii^ 23Y and other her Majesty's officers of the peace in and for the said county, forthwith to convey the body of the said A. B. to the gaol of the said county, at in the said county, and him safely to deliver to the keeper of the said gaol ; and' these are likewise by virtue of my said office, in her 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 infor- mation, or shall be from thence otherwise discharged by due course of law : and for so doing this is your warrant. Given under my hand and seal, this day of G. H., Coroner. Commitment of a Witness for refusing to enter into Recog- nizance to appear to give Evidence. , Province of Canada : County of 1 To the constable of the township of , to wit, j county of , and all other her Majesty's officers of the peace in and for the same county, and also to the keeper of the gaol of the said county. Whereas upon an inquisition this day taken before me, one of her Majesty's coroners for the county aforesaid, at in the sai'd county, on view of the body of C. D. then and there lying dead, one J, U., late of the township aforesaid, in the county 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. B. of the township and county aforesaid, yeoman, was then and there examined and gave information in writing before me and my inquest toucliing the premises, and which said information he. the said U. P., then and there be- fore 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 her Majesty's behalf against the said J. U. now in custody, and charged by my inquest with the said mur- der, and the said U. P. having wilfully and absolutely refused ti) enter into the usual recognizance fur his personal appear- ance at the next general gaol delivery to be holden in and for the county of aforesaid, and then and there to give evi- ilence on her Majesty's behalf against the said J. LI., to the threat hindrance and delay of justice. These are, therefore, by virtue of my office, in her Majesty's name to charge and com- mand you, or one of you, the said constables and other her Majesty's officers of the peace in and for the said county, forth- with to convey the body of the said U. P. to the gaol of the said county, at in the said county, and him safely to ileliver to the keeper of the said gaol there ; and these are likewise by virtue of my said office in her Majesty's name to will and re(iuire you the said keeper to receive the body of the >ai(l II. P. into your custody, and him safely to keep in prison until he shall enter into such recognizance before me, or before one of her Majesty's justices of the peace for the said county, ^^'■^■'il ! i'M"; :W^ : A- %^\\M' m . ' 'li m '■*• -P.. 238 m^ontn. H' 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 and seal, this day of G. H., Coroner. Recognizance by Husband for Wife's appearance, and by Master, ^c, for the appearance of an Apprentice, ^c. Province of Canada : County of > J. P. of the township of in the said coun- to wit. \ ty, blacksmith ; T. P. of the same place, victualler ; J. R. of the same place, whitesmith, the husband of S. R. ; J. B. of the same place, shopkeeper, the mainpernor of J. J. his apprentice, an infant j J. S. of the same place, yoeman, the mainpernor oiG. S. his son, an infant, do severally acknowledge to owe to our sovereign lady the Gtueen the sum of pounds, of lawful money of Canada, to be levied on their respective goods and chattels, lands and tenements, by way of recognizance, to her Majesty's use, in case default shall be made in the condition following. 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, thiTt if the above bounden J. P., T. R., S. R. the wife of the said J. R., J. J., G. S., and S. R. the wife of the said J. P., do severally person- ally appear at tiie next general gaol delivery to be holdcn in and for the county of , 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 in- dictment shall be returned by the grand jury a true bill, then that they do severally personally appear at the session of gene- ral gaol delivery for the said county next after the apprehend- ing or surrender of the said W. T., and then and there seve- rally give evidence to the jury that shall pass upon the trial of the said W. T. touching the premises, and in case the said bill of indictment 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 county, 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 her Majesty's coroners for the said county, on view of the body of the said S. T., and not depart the court without leave, then this recognizance to be void, otherwise to be and remain in full force. Taken and acknow- ledged this day of G. H., Coroner. [COSTS. By 8 v., c. 38, justices of the peace, at the general quarter sessions in July next, (1845), are required to frame (a) ThI (tontn. 239 a table of fees for all services now rendered in the adminis- tration of justice, and for other district purposes, by any sheriff, coroner, clerk of the peace, constable and crier, not remunerated by any law now in force ; and the several clerks of the peace shall forthwith transmit such table to the clerk of the Crown at Toronto, to be laid before the judges of the Court of Queen's Bench ; and such judges are authorised, by rule in term from time to time, to appoint the fees to be taken by such oflBcers accordingly. § 2. All per centage, fees, or allowances, on levying fines and recognizances ; and all fees on services for the private benefit of, or in the nature of a civil remedy for, individuals at whose instance the same are performed, shall be paid by such individuals, and the judges shall, in the table to be framed by them as aforesaid, distinguish the fees to be paid by private individuals, and, except as in this act otherwise provided, all other fees shall be paid out of the district funds. § 3. When any person or persons shall be convicted before any court of quarter ses- sions of any assault and battery or other misdemeanor, such person or persons shall pay such costs as shall be allowed and taxed by the court ; but when any defendant shall be acquitted, the costs of the prosecution shall be paid out of the district funds ; and in case of prosecution for felony, upon conviction or acquittal, or discharge otherwise, the costs of prosecution shall be paid out of the district funds. § 4. Any officer exacting greater fees than established by this act shall for every offence forfeit £10 to any person who shall sue for the same in any court of competent jurisdiction. § 5. District treasurer required to pay fees payable out of the district funds when duly allowed by magistrates in quarter sessions, in the order prescribed by the 59th § of the 4 & 5 v., c. 10. (a) § 6. All suits under this act to be brought within six calendar months after offence committed. By the 16 V., c. 178, (Summary Convictions Act), § 17, in all cases of summary conviction it shall be lawful for the justice or justices in his or their discretion, to award and order in and by such conviction or order that the defendant shall pay to the prosecutor or complainant, such costs as shall seem reasonable and not inconsistent with the fees established by law to bo taken on proceedings had by and before justices of the peace under the 14 & 15 V., c. 119, or any other act regulating fees and costs, and in cases of dismissal to award that the prosecutor or com- plainant pay to the defendant such costs as shall seem reasonable and according to law as aforesaid, and the costs (a) The 4 & 5 V., c. 10, ia repealed by 12 V., c. 80. 240 ^outu. m'v4' i^il •i',ij; h: r^r iff f' ■■ ■♦- SO allowed shall be specified in the conviction or order of dismissal, and recoverable in the same manner and under the same warrants as any penalty or sum of money, adjudged to be paid in such conviction, and when there is no penalty or money to be thereby recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of such distress, imprisonment with or without hard labour for any time not exceeding one calendar month, unless sooner paid. See also post title " Summary Conviction." Administration of Justice — Expenses of. By 9 v., c. 58, entitled, " An act for defraying the expen- ses of his administration of justice in criminal matters in that part of the province formally Upper Canada," it is by § 1, enacted that after the year 1847, the whole of the ex- penses of the administration of criminal justice in Upper Canada heretofore paid by local taxation shall in time to come be paid out of the public funds of the province under the pro- visions hereinafter made. § 2. All accounts of or relative to the said offences shall be examined, credited, vouched, and approved under such regulations as the Governor in council shall from time to time decide. § 3. That the seve- ral heads of expense mentioned in the schedule to this act shall be deemed expenses of the administration of criminal justice within the meaning of this act. For the Schedule, see ^^the Act." Note. — It comprises certain fees payable to the clerk of the peace, sheriff, coroner, constable, crier, and includes other matters relative to the maintenance of prisoners con- fined on criminal charges, a portion of the gaoler's salary, and other items. With reference to the above act the following order in council has been made as to the mode of rendering accounts : " That all accounts for the payment of which, or any part of which, the province is by act liable, shall be rendered in duplicate to the treasurer ot each county during the sittings of the court of quarter session, or within three days there- after, and shall include all the demands of the party render- ing the same (payable as aforesaid by the province), and refer to the authority of the charge." " That such account, before rendered to the treasurer, shall be verified by the oath of the party, that it is just and correct, to the best of his knowledge and belief. And in cases where mileage is charged, there shall be an affidavit stating the places to which, and from which, the mileage is cial, municip and registraj union under i (naming then offices and in; such counties all such unite( inanyjudicia the united coi body of the existing laws and registrati if but one cou III § 9. The CO shall be deem< appear by anj a population o Governor, upo reeves, for th( expedient,) to ting forth the for a county tc provisional mu 31 Counifefii* m reckoned, as well as the number of miles ; and that in no case shall more than the actual number of miles travelled be allowed, nor a greater number of miles than the distance from the court house to the place of service." COU]^TIES. By 12 v., c. 78, it is enacted that this act shall come into operation on the first of January, 1850. I. Abolition of District Divisions. § 2. The districts in Upper Canada for judicial and other purposes are abolished. § 2. Courts, court-houses and gaols to be called county courts, court-houses and gaols ; district grammar schools, county grammar schools, and district offices and offices, to be styled "county." §4. Courts of assize, &c., sessions of the peace, and district courts, to be held in and for said counties, and the name county used in designating such courts, and also in legal proceedings. m.. Unions of Counties for Judicial Purposes. § 5. Counties mentioned in schedule A. shall for all judi- cial, municipal, and other purposes, (except representation and registration of titles,) be formed into unions, and each union under the name of the united counties of , and (naming them) shall for all such purposes, have all courts, offices and institutions now pertaining to districts, so long as such counties shall remain united. § 6. County property of all such united counties to be common property. § 7. Venue in any judicial proceeding shall describe the county as one of the united counties, and jurors shall be summoned from the body of the united counties as if one county. § 8. All existing laws applicable to districts (excepting representation and registration of titles) shall apply to every such union, as if but one county. III. Dissolution of Unions of Counties. § 9. The county where the court-house and gaol are situate, shall be deemed the senior county. § 10. So soon as it shall appear by any census taken, that any junior county contains a population of not less than 15,000, it shall be lawful for the Governor, upon the petition of two-thirds or more of the town reeves, for the time being, of such junior county, (if deemed expedient,) to issue a proclamation under the Great Seal, set- ting forth the same, naming a place within such junior county for a county town, and erecting the town reeves thereof into a provisional municipal county, until the dissolution of such 31 ^''^!^m: t;i. 242 a^onntitn. ill .'"'■yi*;'-' I '■Mm ■> union of counties, as provided for by this act: no sucli petition to be presented or acted upon, unless adopted and signed by such two-thirds, in the month of February after their election, nor until a resolution declaratory of the expediency of such petition shall have been adopted by a majority of the town reeves present at two several meetings, called for that purpose by a majority of such town reeves— the one to be held in February, in the year next but one preceding that in which such petition shall be adopted ; and the other in February next preceding the last mentioned year. Provided also, secondly, that such provisional munici- pal council shall, during its continuance, consist of the town reeves in such junior county. §11. Such provisional council shall have all the powers with respect to such junior county as are now by law vested in municipal councils for purchasini^ property for court-house and gaol, and for levying funds therefor,. &c. § 12. Such provisional council may appoint officers to hold office during pleasure. § 13. Such provisional council shall be a body corporate, with corporate powers. § 14. Moneys may be assessed and levied upon such junior county by any by-law of such provisional council, in the same manner as by the union council, and paid over to provisional treasurer. Collectors to receive 2J per cent, for collection. § 15. So soon as such provisional council shall have erected a suitable court-house and gaol, the debt of the union shall be apportioned by agreement ; and in default of agree- ment the amount shall be settled by tlirec arbitrators, or the majority of them, to be appointed as follows : one by the municipal council, another by the provisional council, and the third by such two arbitrators ; or in dcfiiult of the two making such appointment within ton days after their own appointment, then by the Governor in council. This clause also contains other provisions in respect to such arbitation of a usual character, as to the finality of the award, and niakin;: the same a rule of court. § IG. Assessments of the current year of the dissolution to belong to the union council. § IT. After compliance with preceding clauses, a judge and other officers to be appointed, and at least twelve justices of the peace. § 18. So soon as appointments made, proclamation to issue, declaring such junior county disunited. § ID. Pro- vides for a separate registry of titles. § 20. Property of the union to belong to each county according to location. § 21 provides for continuation of legal proceedings ; § 22, and transfer of records. § 23. All rules and regulations con- tained in any act of parliament relating to court-houses and gaols, shall extend to such junior county so disunited, and the court* other com house of s ia schedul ships lyin^ townships county of ^ Walpole t counties ir presentatio all other pu for the purj consist, sub For the pur' liberties the: towns of JSic shall form j situated. § shall bo un; purposes. IV. J § SO. Tow counties of Ji municipal coi full ])owers. the united coi Essex, and a Kent and La Judicial proce ponding in th( S 33. Town n in the countie sional municij powers. § S4 of Lincoln, 1 property to be forth in sched repealed. § g like powers in this session. Couniu-s of Up2>^ The united c 1. 2. eounti(fii« 243 the courts of assize, &c. Sessions of the peace and every other court of such junior county shall bo houlen at the court- house of such county. § 24 enacts that tho several counties ill schedules B. and C. shall for all purposes include the town- ships lying therein. § 25. For judicial pusposes only, the townships of Oneida and Seneca shall be attached to tho county of Lincoln ; § 20, and tho townships of Raitdiam and Walpole to the county of Haldimand. § 27. That the counties in schedule C. shall, as well for tho purpose of re- presentation and registration, as for judicial, municipal, and all other purposes, include the townships and places of which, for tho purpose of representation, such counties now by law consist, subject to tho proviso hereinafter mentioned. § 28. For the ^\xxt^osq9,o{ representation, the city of Toronto and the liberties thereof, the cities of Kingston and Hamilton, and the towns of -Niagara, Cornwall, Brockville, London and Bytown, shall form no part of tho counties within which thoy are situated. § 29. Cities of Toronto, Kingston, and Hamilton, shall bo united to their respective counties for judicial purposes. IV. Miscellaneous and Temporary Provisions. § 30. Town renvcs of the different townships, &c., in the counties of Kent find Lambton, are to form a provisional municipal council for such counties as united counties, with full powers. § 31. Provides for dissolving the union between the united counties of Kent and Lambton, and the county of Essex, and after such dissolution, said united counties of Kent and Lambton shall form a union of counties. § 32. Judicial proceedings in the several districts to be deemed as pending in tho united counties to Avhich they are transferred. § 33. Town reeves of the townships, imions of townships, &c., in the counties of Ilaldimand and Welland, to form a provi- sional municipal council for each county, and possess full powers. § 34. Provision for dissolving tho union of counties of Lincoln, Ilaldimand and Welland. § 35. All district property to be vested in the municipal corporations, as set forth in schedule B. § 30. All acts inconsistent with this repealed. § 37. Justices of the peace for districts to have like powers in united counties. § 34. Act may be amended this session. SCIIKDVLE A. Cuttntioi of Uppi'r Ciiuwhi. united for Judicial and other purposes. The united counties of — 1. Essex and Kent. 2. FrontenHc, Lenox, and Addington. ;i » ■»!■■ ■ .! ( I \m M ri ir: '■m^M [I -. tf't: ih I' 1' It ,i. ■M ill ^ i . . *i' ' -hi . 4l ■ .1 . L-.'-H ti^ (I; I'v id 'f^ »' JH-' ■'' '•:' 'I! ri ' i '^^ > 244 COtttltfed* 3. Lanark and Renfrew. 4. Leeds and Grenville. 5. Lincoln, Haldimand, and Wclland. 6. Northumberland and Durham. 7. Prescott and Russel. 8. Stormont, Dundas, and Glengary. 9. Wentworih and Halton. SCHEDULE B. Counties and Unions of Counties in Lpper Canada, to which Judicial and other proceedings of the late Districts arc transfer, red respectively, under this act. 1. Carleton those of the Dalhousie District. 2. Essex and Kent •' Western •• 3. Frontenac, Lenox and Addington " Midland " 4. Hastings '• Victoria '» 5. Huron " Huron •" 6. Lanark and Renfrew.... " Bathurst " 7. Leeds and Grenville.... " Johnstown " 8. Lincoln, Haldimand and Welland " Niagara »« 9. Middlesex " London " 10. Norfolk " Talbot « 11. Northumberland and Durham " Newcastle " 12. Oxford " Brock 13. Peterborough " Colborne " 14. Prescott and Russel.... " Ottawa " 15. Prince Edward " Prince Edward" 16. Simcoe " Simcoe " 17. Stormont, Dundas and Glengary " Eastern " 18. Waterloo " Wellington " 19. Wentworth and Halton " Gore ♦< 20. York " Home " SCHEDULE C. Counties in Upper Canada which henceforth shall, fur allpitrjinfia include and consist of the townships and jtlaces therein me ntionci I. 1. Haldimand, which shall include and consist o*" iln ships of Canboro', Cayuga, Dunn, Moulton, < "ii' Ilainliam, Seneca, Sherbrooke and Walpole. 2. Halton, which shall include and con;- the tnwnshi of Beverley, Dumfries, Esquesing, East J Miboron"^h, Wcsi Flamborough, Nassagaweya, Nelson and Trulalgar 3. Norfolk, which shall include and consist of tli townships of Charlotteville, Houghton, Middleton, Townsend, Woodhousc, Windham, Walsingham and Long-Paint, and Ryerson's Island in Lake Erie. 4. Watei ships of Ar mont, Erin Mornington Nichol, Pee VViimot, W( 5. WentM ships of An Onondaga, S By 12 v., several town Lamhton is 1 this section ; representatio and together Lamb ton, anc and be known ton, until dm Parts of Dawi oi the Gore ol part of Sombr of Cliatham, a] ship of Zone d phcraia. § 3. l to extend to tlic and all the pre ship councillor,' shall bo vestec county of Kent county of Lam of the town rec Bj 16 v., c. solution of unio -§14. Alter By 14 & 15 make certain a of Upper Canac It is enacted by into force, (1st !'e divided into counties shall . mentioned in tht and liberties of that ,,,r niunieip and Kingston an !!■(,'. ^onntitn. 245 4. Waterloo, which shall include and consist of the town- ships of Arthur, Amaranth, Bentinck, Derby, Eramosa, E^rc- mont, Erin, Guelph, Glenelg, Garrafraxa, Holland, Luther, Mornington, Minto, Maryborough, Melancthon, Nonnanby, Nichol, Peel, Proton, Puslinch, Sydenham. Sullivan, Waterloo, Wilmot, Woolwich and Wellesley. 5, Wentworth, which shall include and consist of the town- ships of Ancaster, Brantford, Binbrooke, Barton, Glandford, Onondaga, Saltfleet and Tuscarora. By 12 v., c. 79, § 1, the county of Kent is to include the several townships named in this section, and the county of Lamhton is to include the several townships also named in this section ; and the county of Lambton for the purpose of representation is to continue united with the county of Kent, and together return one member — said counties of Kent and Lambton, and the county of Essex, to form a union of counties, and be known as the united counties of Essex, Kent, and Lamb- ton, until dissolved by proclamation, as provided by laAv. § 2. Parts of Dawn, Sombra, and Zone detached, under the name of the Gore of Camden and attached to Camden ; also other part of Sombra detached, under the name of the North Gore of Chatham, and attached to Chatham ; and part of the town- ship of Zone detached, and to form the new township of Eu- phcraia. § 3. Provisions of the 33 and 34 § of the 12 V., c. 78, to extend to the united counties of Essex, Kent, and Lambton; and all the provisions of 10 & 11 V., c. 30, respecting town- ship councillors of the townships of the said county of Kent shall bo vested in the provisional municipal council of said county of Kent. § 4 provides for the dissolution of the said county of Lambton, upon the petition of two-thirds or more of the town reeves of said county. By 16 v., c. 181, prisoners in gaol, or on bail, on the dis- solution of unions of counties may be tried in cither county. -§14. Alteration and Territorial Division of. By 14 & 15 v., c. 5, reciting that it was expedient to make certain alterations in the present territorial divisions of Upper Canada, for judicial, mu,nicipal and other purposes. It is enacted by § 1. That after the time this act shall como into force, (1st day of January, 1852), Upper Canada shall be divided into the counties mentioned in schedule A., which counties shall include and consist of the several townships mentioned in the schedule, and the cities, towns and villages ;ind liberties of the said several cities therein : provided, that or munieipal purposes the cities of Toronto, Ilamilton and Kingston and the liberties thereof shall not form part of lllv ■TV 5 M . ir-« '^i> 'P; ri^'^ 246 (^ouniitn. ^litll i:;' ? the counties of York, Wentworth and Frontenac, "within the limits whereof they are situate, but shall be counties by themselves ; and that for the purpose of representation in the provincial parliament, neither the said cities nor liberties thereof, nor the toAvns of London, Niagara, Brockville, By. town or Cornwall, respectively, shail form part of the coun- ties of York, Wentworth, Frontenac, Middlesex, Lincoln, Leeds, Cavleton and Stormont, within the limits whereof they are situate. § 2. That the counties mentioned in schedule B., for all judicial and municipal purposes, and for all other purposes except representation, shall be formed into unions, as in the schedule, and each of such unions shall, for all such purposes (except as aforesaid) have in common between them all such courts, offices and institutions as by the 5 § of 12 V., c. 78 are to be had in common by counties united under said act : provided that any county or counties now having between them a registry office for the registration of titles shall con- tinue to have the same as before this acL, except that each county entitled to a representative shall also have a separate registry office. § 3. All the provisions iu §§ 0, 10, 11, 12, 13, 14, 15, KJ 17, 18, 19, 20, 21, 22, 23, 35 and 37 of 12 V., c. 78, (res' pccting the dissolution ot unions of counties) shall, in so far as consistent with the other provisions of this act, apply to the unions of counties formed under this act. § 4. That at any time after the first day of February next (1852), it shall be lawful for the Governor in council to issue a proclamation with reference to any of the counties of Elgin, Waterloo, Ontario, Brant, Grey, Larabton, or Wel- land, naming a place within such county for a county town, and erecting the town reeves into a provisio'"al municipal council for such county ; and each sucli provisional council shall, with respect ' "^ such county, possess and exercise all the rights, powers^ ^.rivileges and duties conferred upon pro- visional municipal councils, under the said recited act (L* v., c. 78.) The first meeting of such provisional municipal council to be held at the county town appointed by such pro- clamation, and at such time as thereby appointed. 5 5. That so soon as the court house and gaol in one of the said counties shall have been completed in the county town, according to the 15 § of the act last cited, and the other provisions of that section complied with, it shall ho lawful for the Governor in council to issue a proclamation dissolving the union bct'-.een such county, and the county or counties united with ; it and if united with more than one €mnut^. 247 county, the remaining counties shall form a union until separated under the provisions of this act. § 6. Provision made for the county property in cases of townships or other tracts of land or localities being detached from one county and attached to another. § 7. And for the apportionment of the debt between the elder and younger counties, by which names they are to be in future designated. § 8. Provision also made for the Guelph and Dundas road debt. § 9. Acts 12 v., c. 81, and 13 & 14 V., c. 64, to apply to counties and townships constituted under this act. § 10. Inconsistent enactments repealed. § 11. The limits of all the townships on the river St. Law- rence, lake Ontario, the river Niagara, lake Erie, the river Detroit, lake St. Clair, the river St. Clair, or lake Ilnron, shall extend to the boundary of the province in such bv .^ or river, and shall include islands. The limits of the townships on the river Ottawa shall extend to the middle or main channel including islands, except the islands in front of the scignory of La Petite nation and the "Grand Calumet," and "Grand and Little AUumettes islands," which belong to Lower Canada, the middle of the main channel betweonthe said named islands, and the southerly bank of the Ottawa river, being the boundai-y between Upper and Lower Canada. The limits of the twon- ships in the county of Glengary, extended to the middle of lake St. Francis, and to the middle of the main channel of the river St. Lawrence, including islands. The limits of the townships on the bay of Quintd, the river Trent and its lakes, lake Simcoe, the river Severn, the river Ridcau and its lakes, and the river Thames, the Grand river, and other rivers, lakes and bays not herein-bcfore mentioned, extended to the middle of the said lakes and bays, and to the middle of the main chan- nels of such rit'crs, including islands, excepting islands or parts of islands which are townships by themselves, or included in other townships in the original survey. § 12. Provision as to suits pending. § 13. That for the purposes of representation in the Pro- vincial Parliament, the counties mentioned in schedule C. sball be united under the names assigned, and each union siiall be represented by one member, and every other covmty in Upper Canada, except the county of York, by one member, iinil the county of York by two members. § 14. That the small tracts of land mentioned in schedule D. shall form new townships by the name assigned, and pro- vision made as to the property and debts of the " elder " and 248 eoutftiefii. mm Ik ■! "younger" townships; and where two townships shall be united under this act, the property and liabilities of each shall be assumed by the new township, and at the first election of councillors in any such new township, the warden of the county shall appoint the returning officer, the place of election, and time and place of the first meeting of town council. § 15. The portions of townships i'' schedule E. detached, and to form part of the townships as per sdhedule. § 16. Prisoners for debt on the limits of the united counties of Essex and Lambton, may pass through Kent on their way to either of said counties, and so the sheriflf in conveying any such prisoner to the gaol of the said counties in Essex. § 17. Fees to registrars furnishing statements. § 18. This act to commence on the 1st day of January 1852. Schedule A. Counties. 1. The Couufi/ of Gkngarij shall consist of the townships of Charlottonburgli, Kenyon, Lochiel, Lancaster and the Indian reservation adjoining to the said townships of Charlottenburtjii and Kenyon. 2. The Coanti/ of Stonnont shaJl consist of the townships o| Finch, Osnabruck, Roxborougli, and Cornwall. 3. The County of Pirsrott shall consist of the townships of Alfred, Caledonia, Hawkesbury East, Hawkesbury West, Longuiel, Plantagenet North, and Planlagenet South. 4. Tho County of Rnaarll shall consist of tlie townships of Clarence, Ciunberland, Cambridge and Russell. 5. The Count)/ of Carleton shall consist of the townships of Fitzroy, Goulhurn, Gower North, Gloucester, Huntly, Marcii, Marlborough, Osgood, Tarbolton and Nepean. 0. T'he County of /i?f»y>cw shall consist of the townsliipsof Admaston, Blitlifield, Bagot, Bromley, Norton, McNiib, Pom. broke, Ross, Stafford, Westmeath, and all that tract of land lying between the western boundaries of the townships of Lavant, Blithfield, Admaston, Bromley, StalFord and Pembruki'. and the Ottawa river, and a line drawn parallel to the general course of the said boundaries of the said townships from llic western corner of the township of Clarendon to the Ottawa river. 7. The County of Lnnurk shall consist of the townships ol Montague, Elmesley North, Burgess North, Sherbvooke iNortli, Sherbrookc South, Balhurst, Drummond, Beckwith, Dalhuusir, Lanark, Ramsay, Lavant, Darling and Pakenham. 8. The County of Dundas shall consist of the townships of Mountain, Matilda, Winchester and Willianrisburg. e^mtitn. 249 9. 'The County of Grer.ville shall consist of th© townships of Edwardsburgh, Wolford, Gower South, Oxford, and Augusta. 10. 77ie County of Leeds shall consist of the townships of North Crosby, South Crosby, Burgess, Bastard, Elmsley, Kitley, front of Leeds and Lansdown, rear of Leedf; and Lans- ovvn, Escott, Yonge, and Elizabethtown. 11. The County or" Frontenac shaW consist of the townships of Wolfe Island, (including Simcoe Island, Garden Island, Horse Shoe Island, and Mud Island), Clarendon, Barrie, Pal- merston, Kennebec, Olden, Oso, Hinchinbrooke, Bedford, Port* land, Loughborough, Storington, Pittsburgh, Howe Island, and Kingston. 12. The County of Addington shall consist of the townships of Cam''-/', Ernestown, Kalader, Anglesea, Sheffield, and Ambers ^4and. 13. !•'' County of Lennox shall consist of the townships of Adolphustown, Fredericksburg, Fredericksburgh additional, and Richmond. 14. The County of Prince Edward shall consist of the town- ships of Athol, Ameliasburgh, Hillier, Hallowell, Marysburgh, and Sophiasburgh. 15. Tlie County of Hastings shall consist of the townships of Lake, Tudor, Grimsthrope, Marmora, Madoc, Elzevir, Rawdon, Huntingdon, Hungerford, Sidney, Thurlow and Tyendinaga. 16. The County of Northumberland shall consist of the town- ships of Murray, Brighton, Cramahe, Haldimand, Hamilton, Seymour, Percy, Alnwick, and Monaghan South. 17. The County of Durham shall consist of the townships of Hope, Clarke, Darlington, Cavan, Manvers, and Cartwright. 18. The County of Peterborough shall consist of the the town- ships of Belmont, Methuen, Burleigh, Dumirer, Harvey, Douro, Smith, Monaghan North, Asphodel, Ennismore, and Otonabee. 19. The County of Victoria shall consist of the townships of Mariposa, Ops, Emily, Eldon, Fenelon, Bexley, \ erulam and Somerville. 20. The County of Simcoe sL*.!! consist of the townships of Orillia, Matchedash, Tuy, Medonte, Oro, Vespra, Flos, Tinv, Sunnidale, Nottawasaga, Gwillimbury West, Essa, Tecumseth, Adjala, Tossorontio, Mulmur, Mono, and Innisfil, together with the tract of land bounded on the east by the line between the late Home and Newcastle Districts prolonged to French River, on the west by Lake Huron, on the north by French River, and on the south by the River Severn and the townshipaof Rama, and the islands in Lakes Simcoe and Huron, lying wholly or for the most part, opposite the said county of Simcoe, or any part thereof, and contiguous thereto. 21. The County of York shall consist of the townships of 32 ill i ^■nl *t m Mv :i'; ■^m:h ■>!'• 'K ;! ? vi-ii-; ■ (■ • t- mi i-VW^h;^- 250 (Ht^onnMu* Etobicoke, Vaughan, Markham, Scarborough, York, King, Whitchurch, Gwillimbury East, and Gwillimbury North. 22. The County of Peel shall consist of the townships of Albion, Caledon, Chinguacousy, Toronto, and Toronto Gore. 23.- The Countt/ of Ontario shall consist of the townships of Whitby, Pickering, Uxbridge, Reach, Brock, Georgina, Scott, Thora, Mara, Scugog, and Rama. 24. The County of Halton shall consist of the townships of Esquesing, Trafalgar, Nassagaweya and Nelson. 25. The County of Waterloo shall consist of the townships of North Dumfries, Waterloo, Wilmot, Woolwich, and Wellesley. 26. The County of Brant shall consist of the townships of Brantford, Onondaga, Tuscarora, Oakland, South Dumfries, and Burford, and the village of Paris. 27. The County of Wellington shall consist of the townships of Erin, Puslinch, Guelph, Nichol, Garafraxa, Eramosa, Peel, Maryborough, Minto, Arthur, Luther, Amaranth and Riikinff- ton. 28. The County of Grey shall consist of the townships of Derby, Sydenham, Saint Vincent, Sullivan, Holland, Euphrasia, CoUingwood, Bentinck, Glenelg, Artemesia, Osprey, Nor- manby, Egremont, Proton, and Melancthon, together with that portion of the peninsular tract of land known as the Indian Reserve, and situated between aline drawn northward from the north east angle of Arran, and the northwest angle of Derby, until it strikes Colpoy's Bay on the east side of the Indian Village, and the waters of the Georgian Bay, together with the islands contiguous thereto. 29. The. County of Bruce shall consist of the Townships of Huron, Kinloss, Culross, Carrick, Kincardine, Greenock, Brant, Bruce, Saugeen, Elderslie, and Arran, together with all that portion of the peninsular tract ol land known as the Indian Reserve, and not included in the County of (Jrey together with all the islands in Lake Huron and the Georgian Bay contiguous thereto. 30. The County of Huron shall consist of the townships of Hay, Stephen, McGillivary, Biddulph, Usborne. Hoivick. Mckillop, Grey, Morris, Turnberry, Ashfield, Wawanosh! Colborne, Hullett, Tuckersmith, Stanley, and Goderich. 31. The County of Perth shall consist of the townships of Blanchard, Hibbert, Fullerton, Downie, including the (Jore of Dovvnie, Logan, EUice, Easthope North, and Eastliope South. Elma, Wallace, Mornington. 32. The County o/ Lamhton shall consist of the townships of Bosanquet, Plymptnn, Warwick, Sarnia, Moore, Enniskillen, Brooke, Sombra, including Walpole Islands, St. Ann's Island, and the other islands at the mouth of the river St. Clair, Dawn and Euphemia. Jou Counties unit 3 7, 8, «. 10. U. 12. 13. 14. €otmtitn. 261 33. The County of Kent shall consist of the townships of Orford, Howard, Camden, Chatham, Harwich, Dover East, Dover West, Raleigh, Tilbury East, Romney and Zone. 34. The County of Essex, shall consist of the townships of Mersea, Gosfield, Colchester, Rochester, Maidstone, Maiden, Anderdon, Tilbury West, and Sandwich. 35. The County nf Elgin shall consist of the townships of Aldborough, ^unwich, Southwold, Yarmouth, Malahide, Bay- ham, and South Dorchester. 36. The County of Middlesex shall consist of the townships of Mosa, Ekfrid, Caradoc, Metcalfe, Adelaide, Williams, Lobo, NissoMri West, North Dorchester, Delaware, Westminster and London. 37. The County of Norfolk shall consist of the townships of Houghton, Middleton, Charlotteville, Windham, Townsend, Woodhouse, Walsingham, including Long Point. 38. The County of Oxford shall consist of the townships of Zorra East, Zorra West, Oxford North, Oxford East, Oxford West, Dereham, Norwich, Blenheim, Blandford, Nissouri East, and the village of Woodstock. 39. The County of Ilaldimand shall consist of the townships of Walpole, Oneida, Seneca, North Cayuga, South Cayuga, Canborough, Rainham, Dunn, Moulton and Sherbrooke. 40. The County of Wetland shall consist of the townships of Pelham, Thorold, Stamford, Crowland, Willoughby, Wain- fleet, Humberstone, and Bertie. 41. The County of Lincoln shall consist of the townships of Grimsby, Clinton, Louth, Grantham, Caistor, Gainsborough, and Niagara. 43. The County of Wcntworth shall consist of the townships of Beverly, Flamborough East, Flamborough West, Ancaster, (ilanford, Binbrook, Saltfleet, and Barton. SCHEDULE, B. Counties united for Municipal, Judicial, and other purposee. 1. Essex and Lambton. 2. Huron, Bruce and Perth. 3. Mi('dlesex and Elgin. 4. Lincoln and Welland. 5. Wcntworth, Halton, and Brant. 0. Wellington, Waterloo and Grey. 7. York. Ontario and Peel. 8. Northumberland and Durham. 9. Peterborough and Victoria. 10. Frontenac, Lennox and Addington. 11. Leeds and Grenville. 13. Lanark and Renfrew. 13. Prescott and Russell. 14. Stormont, Dundas and Glcngary. I'M^x oeI iHmI xl ;lfl| M If 1 11 ■4 !252 ^Iptllltff^. >-i" mm ■tn ■.b'f, !■* ;'!i'. 1: f ft/ ji#3'" '^1 ft M ' 'Ifiii I SCHEDULE, C. Cbtm^tef United for the purpose of Representation. Superseded by the 16 V., c. 152. See title " Parliamentary Representation.^ ' SCHEDULE O. New Townships. 1. Howe Island shall consist of the island of that name. 2. East Nissouri shall include and consist of that part of the present township of Nissouri, which lies eastward of the line dividing the seventh concession thereof from the eighth. 3. West Nissouri, which shall include and consist of the resi- due of the present township of Nissouri. 4. North Dumfries^ which shall include and consist of the six northern concessions of the present township of Dumfries. 5. South Dumfries, which shall include and consist of the residue of the present township of Dumfr.as. 6. North Dorchester, which shall include and consist of all that part of the present township of Dorchester, lying to the northward of the line between the 6th and 7th concessions south of the river Thames. 7. South Dorchester, which shall include and consist of the residue of the present township of Dorchester. 8. Pilkington, which shall include and consist of that part of the present township of Woolwich, known as the Pilkington tract. 9. Scugog, which shall include and consist of all those parts of the present townships of Cartwright and Reach which co>n- pose the island known as Scugog Island. 10. OriUia, which shall include and consist of the present township of North OriUia and the present township of South Orillia. 11. Brighton, which shall include and consist of all the lets from number I to 10, both inclusive, in the 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 concessions, and in the broken front of the present township of Cramahe, and of the lots from number 23 to 35, both inclusive, in the 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 conces- sions, and in the concessions A. and B., and the broken front of the present township of Murray, and the peninsula of Presqu' Isle. SCHEDULE E. Tracts detached from Townships and attached to others. 1. The lots on Yonge-street, in the present township of Wea Gwillimbury, shall be detached from the said township, ami be annexed to and form part of East Gwillimbury ; and tin- residue of that part of the said township of West Gwillimbury % 20 v., c, each countj, t Such countj atl rears' standing appointed by tl tinctly as com charged with i J 5. Ilia duties criminal chargei further investigi witnesses at the snd conduct pro Crown, and in prosecutions at ^ tlie case where v Jiis interposition I papers connectec eotttiti^ ^Itornei^. 253 which lies on the south-east side of* the west branch of the Holland river shall be detached from the said township of West Gwillimbury, and be annexed to and form part of the township of King. 2. That part of the present township of Cartwright, lying to the north of Scugog lake, shall be detached from the said town- ship of Cirtwright, and be annexed to and form part of the township of Mariposa. 3. That part of the present township of Nichol, known as the Town Plot of the village of Elora, shall be detached from the present township of Nichol, and be annexed to and form part of the township of Pilkington, and the boundaries of such Town Plot shall be fixed by proclamation, to be issued by the Governor-General in council. 4. The peninsula of Presqu' Isle shall be detached from the present township of Murray, and shall be annexed to and form part of the township of Brighton. 5. The Gore of Murray, lying between the tenth concession of the township of Murray and the township of Seymour, shall be detached from Murray and form part of the township of Sey- mour. 6. That part of the present township of North Dorchester, lying north of the river Thames and east of the middle of the road allowance between lots numbers eighteen and nineteen, shall be detached from the said township, and shall be annexed to and form part of the township of Oxford North. The counties are differently arranged for representation pur- poses by the 16 V., c. 152. See title ^^ Parliamentary Representation.''* COUNTY ATTORNEY. By 20 v., c. 59, § 1, there shall be a county attorney in each county, to aid in the administration of justice. — § 2. Such county attorney shall bo a barrister of not less than three years' standing, and a resident in the county. § 3. To be appointed by the Governor. § 4, not to act directly or dis- tinctly as counsel or attorney for any prisoner or party charged with any offence punishable by the criminal law. § 5. His duties — 1. To receive all papers connected with criminal charges transmitted to him by magistrates ; to cause further investigation when necessary ; to compel attendance of witnesses at the assizes or quarter sessions. 2. To institute and conduct prosecutions at the Sessions on the part of the Crown, and in recorder's courts. 3. To watch over private prosecutions at the sessions, and to assume the conduct of the case where justice towards the accused seem to demand his interposition. 4. To deliver to the crown officer all papers connected with the criminal business of the court of |yi''lll;i 11- M 254 €ounts ^onvt • --'i ''?i^ ill assize ; to represent, and if required, aid the crown officer ; and, in the absence of the crown officers to represent the Crown and conduct the criminal business. § 5. To institute and conduct summary proceedings before magistrates where the public revenue, &c., is concerned. § 6. To advise and instruct magistrates in respect of criminal offences brought before them for preliminary investigation or adjudication upon request in writing. § 7. To perform such other duties as the Governor in council shall require. § 8. To act as " receiver of fees" in respect of the county court, court of insol- vent debtors and division courts in his county. § 9. To perform such other duties as may be assigned to him by any statute. § 6. Such county attorney to take the oath of office prescribed. § 7. Entitled to certain fees on trials at the quarter sessions. § 8. The Governor in council authorised to make regulations as to the duties of county attorneys. § 9. Clerks of the peace to be hereafter appointed to be barristers of not less than three years' standing ; and shall be ex officio county attorneys. § 10. In case of the illness or unavoidable absence of the county attorney, the senior judcfc of the county court is to appoint another barrister pro tm, § 11. Justices committing or bailing parties on criminal charges to deliver the informations, depositions, and other papers connected therewith to the county attorney ; also, the coroner, the inquisition, recognizances, depositions and state- ments of the accused taken before him ; and in every case in which an information or complaint maybe laid before a justice whether proceedings have been taken thereon or not, such justice shall hand over to the county attorney, all papers connected therewith, on being required by such county attor- ney. §§ 13, 14, 15, 16 & 17, relate to financial matters. COUNTY COURT. By 8 v., c. 13, entitled " An Act to amend, consolidate and reduce into one act the laws now in force establishinir or regulating the practice of district courts, &c.," all former acts are repealed, and it is enacted, " that there be estab- lished in every district a court of law and record by the name of the District Court, with one or more judges over the same, being barristers of at least five years' standing, to hold plea of all causes or suits relating to debt, covenant^ or contract, to the amount of X25 ; and in contract or debt on the com- mon '^ounts, where the amount h ascertained by the signature of defendant, to ^£50, and in matters of tort not exceeding £20, *and where titles to land shall not be brought in question." . , % 8 v., 4, , licenses to keep fi's act, shall be I f'iJer municipal d Recollected, and i ^mntp ffnntf^* 255 By 9 v., c. 7, the court is to hold four terms in each year, commencing on the Monday in the week next but three pre- ceding the week in which the county quarter sessions are held, ending on Saturday of the same week. By 9 v., c. 36, the judge is to hold office during pleasure. By 12 v., c. 63, appeals to lie from the County Court to Common Pleas, as well as the Queen's Bench. By 12 v., c. 78, § 4, name of the court changed to " County Court." By 13 & 14 v., c. 52, the jurisdiction of this court is ex- tended to and authorised to hold plea of all causes relating to debt, covenant, or contract, to the amount of £50 ; and in debt or contract, where the amount is ascertained by the signature of the defendant, to XlOO, and in matters of tort relating to personal chattels, where the damages shall not exceed £30, and the title to land not be brought in question. Superior law courts to have a concurrent jurisdiction, but the plantiff not to recover more than county court costb. § 2. Writs of summons and pleadings in this court may be served in any county, and the defendant must plead thereto within the usual time, as if served in the county where suit instituted. § 3. Writ of subpoena and execution^ and rules on sheriff's orders and proceedings, may be issued into any other county, and served and executed there. § 4. All actions in the county courts shall be brought either in the county in which the defendants, or one or more of them shall then reside, or in the county in which the debt was contracted or made payable, or the contract was made, at the option of the plaintiff ; and in default thereof the proceedings before plea, on judgment signed, may be set aside with costs. By 16 v., c. 20, the judge whose commission is of the oldest date is to be judge of the court : others to be junior judges. By 18 v., c. 20, in case of the judge's unavoidable absence the judge of any other court may act in his place. By 16 v., c. 119, an equitable jurisdiction is conferred upon this court in minor matters and to a limited extent. COUNTY FUNDS. By 8 v., 4, c. 72, § 3, moneys arising from duties on licenses to keep houses of publico ntertainment issued after this act, shall be appropriated to the uses of the districts, or other municipal divisions of the province in which they shall be collected, and shall be paid over to the treasurers thereof .ill m , i}., \mw^ .:M r'irl 266 etfttfftfal &«lii« If ■■• Wi' ■ m^^ frfi'' k!;'-!- ' '4 -• "ill ]■■ 5 '1 A f ■' ' ' -di ,1, £ ■Kitjlila^;, -iS accordingly. § 4. Upper Canada rebellion losses debentures to be issued under this act, to be first paid out of the duties on licenses in Upper Canada. COURT HOUSE. The 32 G. III., c. 8, provides that one shall be erected in every district. See also post title " Q-aoU." CRIMINAL LAW. By imp. statute 14 G. III., c. 83, § 11, it was enacted that the criminal laws of England should continue to be administered and observed as law in the province of 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 thereby inflicted, to the exclusion of every other rule of criminal law, or mode of proceeding, which prevailed in the said province before the year 1764 ; subject to such alterations as the provincial legislature might there- after make therein. After the division of the said province into the late provinces of Upper Canada and Lower Canada, by stat. * 40 G. III., c. 1, entitled, "An Act for the further introduction of the criminal law of England into this province," it is enacted, that the criminal law of England, as it stood on the 17th day of September, 1792, shall be and the same is thereby de- clared to bo the criminal law of Upper Canada. Subsequently, many alterations and improvements were made in the criminal law of Upper Canada, which are refer- red to in different parts of this work ; and since the re-union of the said provinces, now constituting the province of Canada, the following important acts have been passed relating to the whole of the united province, viz ; — The 4 & 5 v., c. 24, intituled "An Act for improving the administration of criminal justice in this province." The 4 & 5 v., c. 25, intituled " An Act for consolidating and amending the laws in this province relative to larceny and other offences connected therewith." The 4 & 5 v., c. 26, intituled " An Act for consolidating and amending the laws in this province relative to malicious injuries to property." The 4 & 5 v., c. 27, intituled " An Act for consolidatmg and amending the statutes in this province relative to offences against the person." Ctttdti^ to ^nfmalfih-ipte^entf on* 25 < The provisions contained in these acts will be found under their respective titles : each of the said acts contains a clause repealing all former acts or provisions of law inconsistent or contradictory to said acts. The following acts relating to criminal law and procedure have also been subsequently passed, viz., 6 V., c. 5 ; 12 V., c. 21 ; 14 & 15 V., c. 13 ; 18 v., c. 92 ; 20 V. c. 61 ; the details of which are given under the titles to which they severally relate. CRIMINAL LUNATIC ASYLUM. By 20 v., c. 28, § 28, provision is made for the erection of an asylum at Kingston for the reception of lunatic con- victs, and the Governor may appoint thereto a medical super- intendent and other officers with the same powers and duties as those possessed by similar officers of the provincial lunatic asylum at Toronto. § 29. Provision for the removal of con- victs to the criminal lunatic asylum ; and for reconveyance to the penitentiary upon their recovery. §31. Said criminal lunatic asylum may also be used for the safe keeping of in- sane and dangerous lunatics under the 14 & 15 V., c. 83. CRUELTY TO ANIMALS— PREVENTION. By the municipal act, 12 Y., c. 81, the municipalities of incorporated towns, villages and cities respectively, arc em- powered to make by-laws for preventing the excessive beat- ing or cruel and inhuman treatment of animals on the public highway of such localities. By 20 v., c. 31, § 1. If any person shall, from and after the passing of this act, wantonly, cruelly and unnecessarily beat, bind, illtrcat, abuse or torture any horse, mare, geld- ing, bull, ox, heifer, steer, calf, mule, ass, sheep, lamb, pig or other cattle, or any poultry, or any dog or domestic ani- mal or bird, or if any person who shall drive any cattle or other animal, shall, by negligence or ill-usage in the driving thereof, be the means whereby any mischief, damage or injury shall be done by any such cattle or other animal, every such offender being convicted of any or either of the said oflfences before any one justice of the peace for the city, town, district or county in which any such offence shall have been committed, shall, for every such offence, forfeit and pay (over and above the amount of damage or injury, if any, done thereby, which damage and injury shall and may be ascertained and determined by such justice), such a sum of money not exceeding £2 10s., nor less than 5s., with costs, as to such justice shall seem meet : or the offender shall, in default of payment, be committed to the common gaol or 33 4 |:^' 1 ; ' ■*■ '1 ' 1 ^T, i 'j;;* 1 i^:0 If 'vl \-e i /■ i.l ■■■A I .' U *r • <: ;ji Hi* 258 ertteUi? 10 Anfmaltt— jprebenlfon* house of correction for the city, town, district or county in which such offence shall have been committed, there to be imprisoned for any time not exceeding fourteen days ; pro. vided that nothing in this act contained shall prevent or abridge any remedy bv action against the employer of any such offender, when the amount of damage is not sought to be recovered by virtue of this act : provided that nothing in this section contained shall mako it unlawful for any person to bind any sheep, lambs, calves or pigs, for the purpose of conveying and delivering them to or at any market at a ills. tance not exceeding fifteen miles from the owner's house or premises ; but such animals shall not remain so bound for a longer space than half-an-hour after their arrival at such market. §§ 2 and 3 relate to the treatment of cattle impounded— for which see po%t title " Pound Keeper." § 4. That when and so often as any of the said bffences shall happen, it shall be lawful for any constable or other peace officer, or for the owner of any such cattle, &c., or upon the information of any other person, (who shall declare his or their name or names and place or places of abode to the said constable or other peace officer) to seize and forthwith (without any other authority or warrant) to convey any such offender before any one justice of the peace of the locality, to be dealt with according to law, and such justice shall forthwith proceed to examine upon oath any witness or wit- nesses. § 5. If any person apprehended under this act, shall re- fuse to discover his name and place of abode to the justice he dhall immediately be delivered over to a constable or other peace officer, and shall by him be conveyed to the common gaol or house of correction for the city, town, &c. within which the offence was committed, or in which the offender was apprehended, there to remain for a space not exceeding one calendar month, or until he shall make known his name and place of abode to such justice. § 6. Offences to be prosecuted within three calendar months ; and the evidence of the complainant to be sufficient in the absence of other evidence. § 7. In case of non-payment of the damage or penalty within such period as the convicting justice shall appoint, it shall be lawful for such justice (unless where otherwise spe- cially directed) to commit the offender to the common gaol or house of correction, to be imprisoned with or without bard labour, for any term not exceeding fourteen days, when the amount awarded, or penalty imposed, or both (as the cai"ved personally or left at his usual or last place of residence in whatever county or place. § 11. Any constable or peace oflBcer refusing or neglecting to serve or execute any summons or'warrant under this act shall forfeit any sum not exceeding ^£5 ; and in default of payment be committed to the county gaol or house of correc- tion for one calendar month unless sooner paid. § 12. Penal- ties under this act to be distributed as follows, viz., one moiety to the treasurer of the locality, to be applied on the streets or roads, and the other moiety with full cost', to the prosecutor or such other person as to such justice shall seem fit ; and all damages shall be paid to the person sustaining the same. § 13. Any person giving information shall be deemed a coiu- petent witness, nothwithstanding he may be entitled to any part of the penalty. § 14. All actions brought against any person for any thing done in pursuance of this act shall be commenced within one calendar mouthy and shall be brought and tried in the county or place where arisiniT ; and notice in writing thereof shall be given to the defendant fourteen days before the commencement ; and the defendant may plead the general issu3 and give this act in evidence ; and if the cause of action shall appear to arise in respect of any mat- ter or thing done in pursuance or under the authority of this act, or if brought after the expiration of one calendar montli, or in any other county or place, or if notice shall not have been given as aforesaid, or if tender of suflScicnt amends shall have been made before action commenced, or a suffi- cient sum paid into court afterwards, the verdict shall be for defendant ; and if a verdict for the defendant, or the plain- tiflf become nonsuit, or shall discontinue, or if on demurrer or otherwise judgment shall be given against him, defendant shall recover full costs as between attorney and client ; and if verdict given for the plaintiiT, he shall not have costs un- less the judge shall certify his approbation of the action, a^ul verdict obtained thereupon. S 15. Any person aggrieved by conviction of any justice under this act, may appeal against such conviction, g\\'m\>^ fourteen day.s' notice of such appeal, and of the cause and matter thereof to such justice to the next quarter sessions, wh^ shall have power to hear and determine such appeal in the usual manner, ajid award costs. § Itj. Interpretation clause, defining the lueiininrr of certain words and expressions. § 17. This act not to afiect any mu.^icipal by-law, except so far as the same may be at variance or inconsistent with this act. § IS. The 2 and 8 §§ shall extend to Upper Canada only. § 11>. To be a pub- lic act. ci CURRENCY. 261 By 16 v., c. 158, all former acts relating to the currency are repealed. § 1. The denominations of money in the cur- rency of this province shall be pounds, dollars, shillings, pence, cents, and mills. The pound, shilling, and penny, shall have the same proportionate value as they now have. The dollar shall be one-fourth of a pound, the cent 100 part of a dollar, and the mill 7*5 of a cent ; and in any statement as to money, or money value in any agreement, indictment^ or legal proceeding^ the same may be described in pounds, shillings, and pence, or in dollars, cents, and mills, or in either denomination. § 3. The pound currency shall be equivalent to 101 grains, and 321 thousandths of a grain troy weight of gold of the standard of fineness now prescribed by law for the gold coins of the United Kingdom ; and the dollar currency shall be equivalent to ^ part of the weight aforesaid of gold of the same standard ; and any gold coins of the standard aforesaid struck at the Royal Mint shall by such names as shall be rssigned to them in any proclamation declaring them lawful money, ppss current, and be a legal tender. § 4. The pound sterling shall be equal to £1 43. 4d., or §4 8G cents and 3 of a cent currency ; and any British sovereign of lav/ful weight shall pass current and be a legal tender for that sum ; and the other gold coins of the United Kingdom of lawful weight shall pass current, and be a legal tender for sums in currency equal according to the propor- tions aforesaid, to their sterling value. {} 5. Proviso as to the meaning of the word " Sterling " in contracts, &c., made before this act shall be in force. § {). Public accounts to be kept in such denominations as her Majesty shall direct. {But see 20 V., c. 18, lohick directs that all government accounts shall from inul after the Zlst December, 1857, be rendered in dollars aii:x ants.) § 7. Silver coins struck at the Royal Mint of tlie fineness now fixed by law for the silver coins of the United Kingdom, shall, by such names as shall bo assigned to them by procla- mation, pass current and be a legal teuder at the rates ai^signod. § iS. Silver coins of the United Kingdom, until otherwise ordered by proclamation, shall pf.ss current for sums in cur- rency equal to tiie sums in sterling for which they pass current in the United Kingdom, but after the proclamation shall coa^e to be current. § 9. Silver coins not to be a legal tender over £2 lOs. in any one paymett. 262 envv$nts* [Ml*;:* ■■ ifefr ^i U'' ri::. m i § 10. Copper coins of the United Kingdom, while lawfully current therein, shall pass current, and be a legal tender in this province to the amount of one ahilling currency at the fol- Icwing rates : viz., the copper penny for two cents, the copper half-penny for one cent, and any other subdivision of the said capper penny, in proportion. Provided, that any copper coins of like weight, which her Majesty may direct to be struck for the purpose, shall pass current, and be a legal tender as aforesaid, and if such coins be struck, her Majesty may by proclamation declare the copper coins of the United Kingdom shall not be lawful money of this province. § 11. The gold eagle of the U. S. coined before the 1st July, 1834, and weighing 11 penny weights 6 grains troy weight, shall pass current and be a legal tender for 10 dollars and 66f cents, or X2 13s. 4d. currency; and tl;, half eagle of like date, and proportionate weight, for nuiy half the said sum. The gold eagle coined after the lust mentioned day, and before the 1st of January, 1852, or after that day, but while the standard of fineness for gold coins then fixed by the laws of the U. S. shall remain unchanged, and weighing 10 penny weights, 18 grains troy weight, shall pass current and be a legal tender in this province for 10 dollars, or £2, 10s. currency ; and the multiples or halves oi" said eagle of the date and proportionate weight shall pa current and be a legal tender for proportionate sums. § 12. Other foreign gold coins may be made current by proclamation. § 13. If any person shall colour or gild or case over with gold or silver, or with any wa, h or materials producing the colour of gold or silver, any coin of coarse gold or of coarse silver, or of base metal reserabMng any coin, or shall make or cause to be made, or shall buy, sell, or procure tor himself or for another, or shall knowingly bring and im- port, or cause to bo brought and Icjported into this province, any forged, false or counterfeit goli, silver, or copper coin, like to any of the gold, silver, or loppcT coin made or de- clared by this act to be lawfully current, or any coin of coarse gold, or of coarse silver, or of base metal coloured, gilded or cased ver with gold or silver, or with any wash or materials, producing the colour of gold or silver, and resembling any such coin, or shall utter or attempt to utter, or tender in pay- ment to any person or persons (as being any of the gold, silver or copper coins hereby made or declared to be current) any false or counterfeit piece counterfeited to any of the gold, silver, or coppei" coins made or declared to be current l)y this act, or any of the higher or lower denominations theroot, kno\ving the same to be false or counterfeit, such person shall at^ntvtnts* 263 be gwilty of a misdemeanor^ and on conviction be liable to be imprisoned and kept at hard labour in the provincial peni- tentiary for not less than three nor more than fourteen years, in the discretion of the court ; and for a second oflFence shall be deemed guilty of felony ^ and liable to imprisonment for life in the said penitentiary, or for any time not less than fourteen years in the discretion of the court. § 14. If any person shall form, make, cut, sink, stamp, engrave, repair or mend, or assist in so doing, or shall have in his or her possession, except for some known and lawful purpose, any false or counterfeit coin, counterfeit to any coin lawfully current under this act, or any die, press, tool or instrument, or metal or material of any kind used, constructed, devised, adapted or designed for counterfeiting any coin law- fully current under this act, such person shall be guilty of a misdemeanor and punishable accordingly, and the proof of laivful purpose shall lie upon him or her. § 15. It shall be lawful for any justice of the peace on complaint made before him upon the oath of one credible person that there is just cause to suspect that any person or persons is or are, or hath or have been concerned in making counterfeiting or imitating any such coin as aforesaid by warrant under the hand (a) of such justice of the peace to cause the dwelling house, room or workshop, outhouse or other building, yard, garden, ground or other place belong- ing to such suspected person or persons, or when such sus- pected person or persons shall be suspected to carry on such making, counterfeiting or imitating, to be searched for any such counterfeit coin ; and if any such coin, or any such die, press, tool or instrument, metal or material as aforesaid shall be found in the posstssion or custody of any person or persons whomsoever, not having the same for some law- ful purpose, it bhall be lawful for any person or persons discovering the same to seize, and he or they are hereby au- thorised and required to seize and ca "ry the same forthwith before a justice of the peace havino; jurisdiction within the locality in which the same shall be seized, who shall 3ause the s'liiip to be secured and produced in evidence against any jirson ' • persona who shall or may be prosecuted for any such nffence as aforesaid in any court of competent jurisdic- tion, and the same after being so produced in evidence shall hy (irtlcr of the court be defaced or destroyed, or otherwise disposed of as the court shall direct. § 16. Any person to whom any pretended gold, silver, or (a) Hand only in the »ot ; but *' band and se«l" probably meant. asii' m \v:%:W i,« i y ! '( 264 €nntotnu* ^ f ;'; copper coin shall be tendered in payment, -which shall by the stamp, impression, colour or weight thereof, afford reason to suspect that the same is false or counterfeit, may cut or break such coin, and if counterfeit, the person who tendered it shall bear the loss, otherwise the person who shall have cut or broken it, shall receive it for a sum proportionate to its weight ; and if any question shall arise whether such coin be counterfeit, it shall be determined by any justice of the peace, who if he entertain any doubt may summon three skilful persons, the decision of a majority of whom shall be final. § 17. If any false or counterfeit coin shall be produced in any court of law, the court shall order the same to bo cut in pieces in open court, or in the presence of a justice, and then delivered to or for the lawful owner, if any, claiming the same. § 18. Any person knowingly uttering or attempting to utter or offer in piyment, as being lawfully current, any gold coin of less value than its lawful weight, or who shall diminish the weight of any such coin with intent to utter or offer it in pay- ment, shall bo guilty of a misdemeanor and punishable accordingly. § 19. Evidence to be given in cases under this act. § 10. This act to have force and effect from the day to be appointed by proclamation. The act came into force on the Ist of Augmt, 1854, un- der proclamation dated 5th July, 1854. CUSTOMS. By 10 «fc 11 v., c. 31. After various provisions relative to importation and entry of goods, &c., it is enacted by § 3', that if any person shall forge or counterfeit any mark or brand to resemble any mark or brand which shall be pro- vided for the purposes of this act, or shall forge or counter- feit the impression of any sueh mark or brand, or shall sell or cxpc se to sale, or ha ;e in his, her or their custody or pos- session, any goods with a counterfeit mark or brand, know- ing the same to be counterfeit, or shall use or fix aay such marl: or brand to any other goods required to be stamped as aforesaid, other than those to which the same was origi- nally affixed, such goods so falsely marked shall be forfeited, and every such offender or offenders, his, her or their aiders, abettors or assistants, shall, for every such offence, forfeit and pay the sum of X50, which penalty shall be rccovcralilo in a summary way before any two justices of the peaee in this province, and in default of payment, the oflendcr shall (^nntomn. 265 be committed to any of her Majesty's gaols in this province, for a period not exceeding twelve calendar months. And if any wilfully false oath be made in any case, where, by this act, an oath is required or authorised, the offender shall be guilty of wilful and corrupt perjury, and punishable accord- ingly- § 36. If any person shall courterfeit or falsify, or use when so counterfeited or falsified, any paper or document required under this act, or for any purpose therein mention- ed, whether written, printed or otherwise, or shall by any false statement procure suc^ document, or shall forge or counterfeit any certificate ating to any oath, affirmation or declaration hereby required or authorised, knowing the same to be so forged or counterfeited, such person shall be guilty of a misdemeanor, and, on conviction, punished accordingly. § 37. If any person or persons shall offer for sale any (Toods under pretence that the same are prohibited, or have been unshipped and run on shore, or brought in by land, or otherwise without payment of duties, such goods (although not liable to duties or prohibited), shall be forfeited, and the offender sha)! forfeit treble the value of such goods, or the penalty of X50, at the election of the prosecutor, recovera- ble in a summary vray, upon legal proof thereof, before any one or more justices, and in default of payment, the ofiender shall be committed to anj of her Majesty's gaols for a pe- riod not exceeding sixty days. § 38. Contains provisions for custom-house officers mak- ing search for smuggled goods, detaining vessels, carriages, &c., engaged in smuggling, and then provides tliat all mas- ters or persons in charge of any such vessels, and all drivers or persons conducting or having charge of such vehicles or conveyances, refusing to stop when rcijuirod so to do by such officer or person in the Queen's name, or any person being present at any such seizure or stoppage, and being called upon in the Queen's name by such officer or person to aid and assist him in a lawful way, and refusing so to do, shall forfeit and pay the sum of <£50, recoverable on legal proof before any two justices of the peace, and in default of pay- ment, the oflfendcr shall bo committed to any of her Majes- ty's gaols for a period not exceeding six months. § ;]0. If any person or persons whatsoever, shall, under any pretence, either by actual assault, force or violence, or liy threats of such assault, force or violence, in any way resist, oppose, molest or obstruct any officer of customs or any person acting in his aid or assistance in the discharge of 34 p\ I;' ... %' A 11 i\ iilii' r ;fc* .- -. J ' limit ■\ - i: "'«,; ;iptiwt:i 266 mmtomn* ,1 s* his or their duty under this act, or any other act of this province relating to customs trade or navigation ; or shall wilfully or mttliciously shoot at or attempt to destroy or damage any vessel or boat belonging to her Majesty, or in the service of the province, or maim or wound any officer of the army, navy, marine or customs, or any person acting in his aid or assistance, while duly employed for the prevention of smuggling, and in execution of his or their duty ; or if any person or persons shall be found with any goods liable to seizure or forfeiture under this or any other act relating to customs trade and navigation, and carrying offensive arms or weapons, or in any way disguised, or shall stave, break, or in any way destroy any such goods before or after the actual seizure thereof, or shall scuttle, sink or cut adrift any vessel, or destroy or injure any vehicle before or after such seizure, or shall wilfully and maliciously destroy or injure by fire or otherwise, any custom-house, or any buildin;; whatsoever in which seized or forfeited goods are deposited or kept; such person or persons being convicted thereof, shall be judged guilty of felony, and be punishable accord- ingly- § 40. If any five or more persons in company be found together, and they or any of them shall have any goods lia- ble to forfeiture under this act, every such person shall be guilty of misdemeanor y and be punishable accordingly. § 45. If any person, whether pretending to be the owner or not, shall either secretly or openly, and Avhether with or without force or violence, take or carry away any goods, vessel, carriage, or other thing which shall have been seized or detained on suspicion, as forfeited under this act, before the same shall have been declare i by competent authority to have been seized without due cause, and without the permis- sion of the ofiicer or person having seized the same, or of some C"iupotriit autliority, such person shall be deemed to have stolen such goods, being the property of her Majesty, md to be g'lilty of feloni/, and liable to punishment accord- ingly. § 47. That if any such goods shall l)e stopped or taken bj such police officer on suspicion that the same have heen feloniously stolen, he nhrll convey the sanie to the police office to wliich tin oflV-ndcr is tiikcii, there to reinaii. until trial. And the police officer slmll give notice in writiuj; in the collector or princirml officer of her A^ajestv's cu**t(>iiis at the nearest port of his having so di'tained such goo\m\n the stock of grain, &c., on hand. §10. Accounts to be rendered by distillers twice a month to the in- spector, of spirits, &c., distilled, with the strength thereof r..;t m :>'■ I ^! mwBi ' '1 P'iltf I ■•. u rim -»( •'t: {'<: Y- i'.' r 't. if:;- y Kriiij : ill t'f- :v. I'., :/• ,Si . I Mi 'Ut? !■' »« I i- ^\'>U.M It* 270 29ffiitUUts* and tho quantity produced each time ; and shewing also the quantity of grain, &c., used; such account to be on oath, and in the form following : — I do solemnly swear, that the account above written, to which I bavc also subscribed my name, contains a true account of the total quantity of every kind of spirits, or strong water, or spirituous liquors, distilled, manufactured, or made by me, (or bi/ as the rase may he,) within the time mentioned in the same account, and on Avliich duty is payable, and of the quantities of each kind respectively, and the strength thereof, and also of the quantities produced at each separate time therein mentioned, by a distinct set of operations; and also of the quantities of all grain or other vegetable production or sub- stance consumed by me, (or hi/ the said ,) during the said time. So help me God. Such affidavit to be made before a justice and delivered with the account to the inspector, who may further interro- gate the party, on oath, as to such account, before a justice. §11. False statements to be perjury. §12. Distillers to produce books to the inspector at any seasonable time, and inspector to have free access to the premises at all times, under a penalty of £20 for each neglect or refusal ; no ad- mittance to be required between sunset and sunrise, except when distiller is at work, or unless inspector be accompanied by a peace officer. § 13. Duties to be paid when account rendered, under a penalty of £20 and forfeiture of license. § 14. Duties recoverable although account not rendered, but Avith three times the amount, as additional penaltv. § 15. Distiller not to work his distillery without ten days' previous notice, in writing, to the inspector ; such notice not to extend to a longer period than thirty days ; and any dis- tiller working his distillery without giving such notice shall be liable, each day, to the same penalty and forfeiture as if doing so without a license. § 16. Payment of penalties not to release parties from the duties ; duties to be recovered with full costs in any court of competent jurisdiction ; and the stock in trade and apparatus on the premises are made specially liable therefor ; and if forfeited under this act, rear be seized, marked and secured by the inspector until con- demned, or released by competent authority, and shall not be used in the meantime. § 17. Distillers required to furnish the inspector with lights, ladders, and measures for examin- ing, guaging, &c., any still, vssel, or stock on such prenaises, under a penalty of £20. § 18. District inspector and persons acting under him to have free access to the premises at any hour of the day or night, and make all necessp'^y inquiries To justify taki ivarrant for so i taken are distrai "me and place.- , "' ^^'c day time damage feasant.- Im mutvtnn. 271 and searches, subject to the restrictions aforesaid. § 19. In- spectors, or any other persons acting under them, having first obtained a search warrant from a justice of the peace, on affidavit shewing reasonable grounds for issuing thereof, may, at any hour between sunrise and sunset, search any house, building, or place mentioned in such warrant, sus- pected of having any unlicensed still, auxiliary vessel, mash tub, or other vessel illegally in use therein. § 20. Penalties under this act may bo recovered before any ttvo or more justices of the peace, where the offence committed, on the oath of two credible witnesses, and if not paid, levied by ' distress and sale ; or such justices may, in their discretion, commit the offender to the common gaol until penalty and costs are paid — one moiety of the penalty to belong to her Majesty, and the other moiety to the prosecutor. § 21, contains a provision also for recovery of the penalties, in civil courts. § 22. Revenue officers to be competent witnesses if not pro- secutors ; and no person making any seizure under this act shall bo liable for damages, if the court shall certify there was probable cause. § 28 imposes a penalty of £i) on persons refusing to give evidence when summoned, to be recovered as other penalties. § 24 directs the appropriation of duties. §§ 25, 26. This act to commence on the 5th January, 1847, and to continue in force till the 1st January, 1848, and from thence to the end of the next session. By 12 v., c. 14, § 1, the duty of 2d. per gallon is repealed; and by § 2, a duty of one penny per gallon, Avino measure, is substituted, for spirits not exceeding the strength of proof by Sykes' Hydrometer^ and so in proportion for i\\\y greater strength than the strength of proof, and for any greater or less quantity than a gallon, and such duty shall be charged upon the quantity of spirits to be ascertained after the first process of rectification. § 4 authorises the Governor in council to make regulations for warehousing. § 5 enacts that the word spirits shall include all spirits, strong waters, and spirituous liquors of any kind. § 0. The V., c. 2, as now amended, is continued until repealed by competent authority. For forms of proceeding see title "■ Nummary Convietion." 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 distrainablc, 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 case of cattle distrained damage feasant. — 1 Inst. 142 ; Bull, X. F. 01. Persons III '11!^ I %. i - m ::^!i:Hii ' ■ A ■ it ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.25 1^1^ ||25 1^ mil 2.2 I.I l*^ II- LA. 11 1.6 h '/: f ^J> w > .> Photographic Sciences Corporation 7* WMT MAIN STRUT WltSTIP.N.Y. MSM (7l*)l7a-4S03 ►V^4 z ^ 6^ WWm R»;ff|3V- ■■'■ 272 mutttnu* ■J • I ,'} tr ; ■■: ■■ t. 2 making a lawful distress may sell the same upon the pre- mises, in like manner as may be done off the same. 2 W. ^ M. Ses8. 1, c. 5. Of Distress hj Warrant of Justices of the Peace. By statute 27 G. II., c. 20, it is enacted as follows : — In all cases where any justice of the peace is, or shall be re- quired or empowered by any act of parliament to issue a warrant 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, thoroin to order and direct the goods and chattels, so to be dis- trained, to be sold and disposed of within a certain time, to be limited in such warrant, so as such time be not less than four days, nor more than eight days, unless the penalty or sum of money for which such distress shall be made, tofre- ther with the reasonable charges for taking and keeping such distress, bo sooner paid : and the oflScer making such distress shall and may deduct the reasonable charges of taking, keeping and selling such distress, 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 shall bo satisfied and paid,) 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 suffer 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. Ahr. title " lieplevin." If, in seizing for the whole amount, the first distress is found insuflScient, from mistaking the value of the goods seized, a second distress may be made. — Burr. 589. By 10 v., c. 178, § 18, it is enacted that when a conviction adjudges a penalty or compensation to bo paid, or where an order requires the payment of a sum of money, and Ity the statute authorising such conviction or order such penalty, compensation or money, is to be levied upon the goods ami chattels of the defendant by distress and sale, and also in cases where the statute provides no mode of raising or levy- ing or enforcing the payment of the same, it shall be lawful for the justices or any of them making such conviction or order, or for any other justice of tlie locality, to issue his warrant of distress for the purpose of levying the same under the hand and seal of such justice ; and if after the delivery of such warrant to the constable or constables to U si mutvtnu^ 273 ■I Ir ^ Hi whom directed, sufficient distress shall not be found within the locality, then upon proof upon oath of the handwriting of such justice granting the warrant, before any justice of any other territorial division, such justice shall endorse on such warrant authority for the execution of such warrant within the limits of his jurisdiction, by virtue of which said warrant and endorsement the penalty and sum afore- said and costs, or so much as may not have been levied or paid, shall and may be levied by the person bringing such warrant, or by the person or personr to whom the same was originally directed, or by any con itable or other peace officer of such last mentioned terriiorial division, by dis- tress and sale of the goods and chattels of the defendant in such other territorial division : provided that whenever it shall appear to any justice to whom application shall be made for any such warrant of distress that the issuing thereof would be ruinous to the defendant and his family ; or whenever it shall appear, by the confession of the defen- dant, that he has no goods and chattels whereoij to levy such distress, then, in every such case it shall be lawful for such justice, if he shall deem fit^ instead of issuing such warrant of distress, to commit the defendant to the common gaol or lock-up house of the locality, to be imprisoned with or without hard labour, for such time and in such manner as by law such defendant might be so committed, in case such warrant of distress had issued and no goods or chattels had been found whereon to levy. § 19. In all cases where a justice of the peace shall issue any such distress warrant it shall be lawful for him to suffer the defendant to go at large, or verbally, or by a written warrant, order the defendant to be kept in custody until return shall be made to such warrant, unless such defendant shall give sufficient security by recognizance or otherwise to the satisfaction of such justice for his appearance before him at the time and place appointed for the return of such warrant, or before such other justice or justices for the same territorial division as may then be there. § 20. If the constable shall return that he could find no goods or chattels whereon he could levy the sum or sums mentioned, together with the costs of, or occasioned by, the levy of the same, it shall be lawful for the justice before whom the same shall be returned to issue his warrant of i commitment under his hand and seal directed to the same or any other constable, requiring such constable to convey such defendant or other person to the common gaol or lock- up house within the territorial division for which such Qfc 'I |f I> 11 ^\ m M .; ! r m:^ •f: ;';,t' .1*" mm 274 mwuion a^ouvtn. |i '«!<.> ,, -irf'^.ir: :- 280 HfUffltfon ■;il;^::- if 14 (:l:,a4JM Eli ' ■'■ !^: ' i' I M .vUWI I in the first instance, the judge may commit the offender to the common gaol for any period not exceeding three calen- dar months. § 77. Any clerk or officer taking higher fees than allowed by law, shall be incapable of being employed again under this act, and liable to damages. § 78. No costs allowed in superior courts unless the judge shall certify that it was a fit cause to be withdrawn from the division court ; but costs as between attorney and client shall be allowed to the defendant against the judgment. § 79. Want of form not to vitiate proceedings upon any levy or distress under this act. § 80. Executors and administrators may sue and be sued in this court. § 81. Parties to the suit may bo ex- amined upon oath, at the instance of the opposite party or the judge. § 82. FihvS to be enforced by order of the judge. § 83. Costs of the division court, not otherwise pro- vided for, to be apportioned between the parties as the judge shall think proper ; and in cases where the plaintiff shall not appear, or shall not prefer his demand, the judge may award costs to the defendant, and a further sum for his trouble and attendance. § 84. Judgment of the court to be final, witli power to order new trial upon terms, if applied for within fourteen days and good grounds shewn. § 85. Suit brought in this court may be removed into any of the superior courts by certiorari, if the amount claimed shall amount to £10 and upwards. § 86. Division court to have a real, and process to be stamped therewith. Forging, or knoivingly serving forged process, or copy, or acting under the same, to be felony. § 87. Summons to be served out of the division, may be served by the bailiff of such other division, (a) § 88. And such service may be proved by affidavit sworn be- fore any judge or clerk of a division court, or a commis- sioner. Fee for drawing affidavit 6d., and oath 6d., and no more. § 89. Bailiff acting under execution may seize and take any goods or chattels of defendant {tvearimf apparel and bedding of such defendant or his family, and his took and implements of trade to the value of £5 excepted) money or bank notes, cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money. § 90. Plaintiff may sue on such notes, &c., in the name of the defendant, on giving security for costs. § 91. Any plaintiff may sum- mon the defendant upon any unsatisfied judgment to appear before any division court where he shall dwell or carry on business, to be examined upon oath touching his estate and effects, the circumstances under which the debt was con- (a) Repealed by 16 V., o. 177, and n«w provision made, § 2;'■■ -urn ■ ■ mim f;Ni' i'Vii ; 111' « fi ' 4 tachment, by a third party, the clerk of the court (or the bailiff) may summon the plaintiff and the claimant before the next division court, and the judge shall adjudicate upon such claim. § 103. Penalties, fines and forfeitures imposed by this act (and not otherwise directed to be applied) shall be paid over to the county treasurer as part of the fee fund. § 104. In all cases where by this act any penalty or forfeiture is made recoverable before a justice of the peace, such justice may summon the party, and on return of such summons hear and determine the complaint and on })roof of offence convict the offender and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same, though no inforraation in writing shall have been exhibited before him, and such proceedings shall be as valid as if information had been exhibited in writing. § 105. The form of conviction to be in words or to the effect following : Be it remembered, that on this day of , in the year of our Lord , A. B. is convicted before ,011,. of her Majesty's justices of the jjeace for the county of or before a judge acting under an net passed in the year of the reign of lier Majesty Queen Victoria, intituled "An Act," &r., (^insurt t/ir title 0/ this art,) of having (/(v/f the offenrr) ; am! I (jjr icr') the said do adjudge the said to for- feit and pay for the same the sum of , or to be committed to tlie common gaol of the county of for the space of Given under liand and seal the day and year aforesaid. § 10(3. No order, verdict or judgment to be quashed for want of form. § 107. Actions brought against any person acting under this act, to be brought and tried in the county where the fact was committed, and within six calendar months, and one calendar month's previous notice in writing to be given of such action. Defendant may tender amends, and plead the general issue. § 108. The plaintiff bringing such action in any superior court, and not recovering more than <£2 10s. damages, not entitled to costs, unless the judge shall certify. § 109. PoAver given to the executive to regu- late the holding of courts where business may not require the court to be held every two months. § 110. Clerks of division courts t^ make half-yearly returns upon oath of all fees and emoluments. § 111. Interpretation clause. § 112 relates to proceedings under former acts. § 113. This act to come in force on the first day of January, 1851, and not before. By 16 v., c. 177, § 1, the jurisdiction of the oaurt is extended in all personal actions to .£10. § 2. Judge may Hf^fsfon d^ouvtn. increase the fee for hearing any defended cause, to a sum not exceeding 10s. § 4. May "witli consent of parties refer any case to arbitration. The award to be entered as a judg- ment. The judge on application may set aside award and order another reference. § 5. Witnesses compellable to attend before arbitrators, who may administer oaths, and false swearing to be perjury. § 6. Part of the statute of 8th of Anne, not to apply to execution under division court, but the landlord of any tenement may deliver hi" claim, in writ- ing to the bailiff for rent in arrear not exceeding /owr weeks, when let by the week, and not exceeding the rent in two terms of payment when let for any other term less than a year, and not exceeding in any case one year's rent, bailiff may distrain for such arrears and cost, and the amount of execution, but shall not proceed to sell until after the end of eit/ht days. Bailiff shall bo entitled to have as costs of distress instead of fees allowed by th« division court act 13 & 14 v., c. r)3, the fees allowed by 1 Y., c. 16 ; and if goods replevied, so much of the goods taken shall be sold as will satisfy the execution and the co'*:s of sale, av^ the surplus of sale and goods distrained shi;li bo return c*l. But no p\ocution creditor shall be paid out of tl > proceeds of such execution and distress or execution only, where tenant replevies, until the landlord conforming to this act shall be paid his arrears of rent as above. § 7. Section 102 of 13, 14 v., c. o3, amended^ and in case of any claim for irnt or otherwise, on goods seized, the parties may be summoned and any action (if brought) stayed, and the judge of the court shall adjudicate between the parties, and such order be final and conclusive. § 8. Suits may bo entered and tried in the court where the cause of action arose, or whore the defendant resides or carries on his business, or by leave of the judge (according to the next section) in the court adjacent to where the defendant resides. § i). Any division court suit may by leave of the judge be entered and tried in any court in which the judge shall specially order. § 10, The Governor authorised to appoint /ire of the eounty court judc/cs to frame division court rules, which being approved by a chief justice, and three judges of the superior courts at Toronto, shall be valid. § 11. Judge may order any fact in a suit to be tried by a jury o^Jive persons iiistanter, and may give judgment on the ver- dict, or grant a new trial. § 12. Clerks ani bailiffs of division courts to give security. § 13. Clerks to make out yearly lists of moneys paid into court and unclaimed during a certain time. List to bo posted up, and sums remaining unclaimed six years to be carried to the account of the general fee fund. § 14. 284 mwuton m^mvtu. m\'}' I m fij >■ 1:^||iWi m ' 't- t !' ■'II it : ' I. p;;.f:4i|k-i^:4|i.:i :]'i^;if -'if ^n No action to be brought against any bailiff until demand made of the perusal and copy of warrant, and the same refused ; snd in case of demand and compliance, if any action brought without making the clerk of the court defendant, or producing or proving such warrant at the trial, the jury shall give a verdict for the defendant ; and if brought against the clerk and bailiff jointly, then on proof of such warrant the jury shall find for the bailiff ; and if verdict against the clerk the plaintiff shall recover his costs against him, and in any such action the defendant may plead the general issue, and give special matter in evidence. § 15. Interpretation of the words "Landlord," "Agent." §16. In case of separa- tion of united counties, the division courts of the junior county shall remain until otherwise ordered. § 17. Provision made for proceedings in case of any alteration made in divisions. § 18. For the transfer of papers and documents on separation of unions of counties, or by judge's order, ij 19. Provision made where upon separation a division court shall bo partly in a senior, and partly in a junior county. § 20. Justices at the first quarter sessions after the separa- tion of any union of counties to appoint (not less than three nor more than twelve) limits and extents of the divisions within such county or counties. § 21. Any collector norflect- ing for siv days after demand to furnish the clerk of the division with a correct list of persons liable to serve as jurors, to incur a penalty not exceeding £5. — No person shall be compelled to serve as juror in any division court, who is by law exempt as a petty juror in any of the superior courts. § 22. The judge authorised to examine plaintiff or defendant in suits not exceeding 40s., and give judgment thereon. § 23, and may also in other suits examine plaintiff or defen- dant upon oath, at his discretion. § 24. Judgments, &c., of former courts of requests may be dealt with as judgments of division courts. § 25. Additional allowance of X50 per annum to county judges for travelling expenses. § 20. Judge may adjourn the hearing of any cause in order to allow the production of further evidence. § 27. Proceedings by de- fendant on plea of tender. § 28. Plaintiffs' and defendants' books "diaissible in evidence : power given to grant new trials. § 29 repeals 87th § of 13, 14 V., c. 53, and provides for the service of summons by the bailiff of any other division court. § 30. The summons under the 91st § of 13, 14 V., c. 5^5, may be issued from the court where judgment obtained, or wliere the defendant resides or carries on business. § 31, Affidavits of service of process to be prepared by the clerk. § 32. Short titles of the acts. § 33. Affidavits may be sworn mwuion eoittrtfii. 285 before any county court judge, or any clerk of division court, or commissioner. § 34. Commencement of the act, 1st July, 1853. By 18 v., c. 125, § 1, suits may hereafter be entered and tried in the division where the cause of action arose, or where any of the defendants (if more than one) shall reside or carry on business, except that no writ of ^. fa. or attachment shall be executed out of the division where issued, provided that when the defendant resides in a county adjoining, and none of them resides in the county where action brought, the sum- mons shall be served fifteen days ; and when none of the de- fendants reside in the county where action brought, nor an adjoining county, then the summons must be served twenty days before the court ; and in case of defence under the 43rd § of the act of 1850, notice thereof must be given to the clerk of the court five days before the holding. § 2. Bailiffs of any division court authorised to serve and execute summonses, writs, and orders of other division courts. § 3. Proceedings for enforcing the judgment of one court in another county. Clerk of division court bound to forward summonses to other divisions for service when required, and in like manner to receive and return. § 4. Provision as to costs of suit. § 5. Fees of clerks and bailiffs increased ; clerks as per schedule, and bailiffs' mileage to be five pence per mile. § 6. Act to commence on 1st July, 1855. 286 Mm lllr ^' •: til? flri'f i ■ i :,>;.(.: ^:iiiJ •I ;;■ '! ■ i;;. ,i'„ |;. '(■ . y: ; ■if ifli. Hiiiffiiion (Srottttfit. TABLE OP FEES, 13, 14 VIC, CAP. 63. FEE FUND. Entering account and issuinj; Hummons Hearing an undofonded cause Ilearin); a defended cause Every order or judgment (not to be cliarged wbon the dofen dant has given a confession of judgment) On every confession of judgment , CLEKK'S FEES. J^ntcring every account and issuing summons Copy of summons, particulars of demand or set-off when not furnished by ])hiintifT or delendant. each Every summons to witness, in which any numl)cr of names may be included Adjourumrnt of any cause Euteriug set-off or other defence requiring notice to the pluiiitilf Entering every judiiment Every search into a proceeding over a year old Taking confession of judgment Every warrant, attachment, or exccut on To the clerk for taking charge of and keeping the property seized, such sum iw tlie judge may order in each purti culur case. For every copy or certificate of judgment to another county... Deposit to be paid by parly requiring jury Entering and giving nulice of jury being required Making out summons for llie fifteen jurors, to be apportioned l)ctweeu and paid in the first instance by parlies ajiplying for juries THIO UAILIFF'3 FEES. Service of summons, or ntber proceeding, except subpre'na on each persdu Service of subpiena on each witness For takin:; ennlissidn of jud meiit Drawing ami attemling to swear to every iitndavit of service of summons, when served (juI (if the division Enforcing every warrant, execution, or attachment, against the goods or body For every mile necessarily travelled from the clerk's office, t< serve summons or sulipu'na, ami in going to seii^e on execution where money made or casi' selllpd after the levy. 4d. For every jury trial For carrying delinquent tn prison, including all expenses and assistance, per mile. Is. Every schi'dub- of property srizc^d, return, including affldavit of appraisal Kvery bond, iiiducling affidavit of justification Every notice of sale, not exceeding three, undur execution, on atlHchtni'lit, I'd. each. That there 1m' allowiil to the hailifT, upon the sale of property under any exrcution the sum of 'Ji |>er ci'nt. upon the amount realized, and not to apply to any overplus on the said I'xecution. s.d. 4 6 1 6 .T 6 6 (1 II n 1 3 4 4 4 1 (» 1 fi P P TJ'O 8. d. fi 9 2 6 3 3 6 3 (5 9 6 G G 1 1 ;i 6 I) 1 1 n (i 2 fi 2 fi .■s s =rt M Mo tt Sac a. ■. d. t 3 1 3 3 g 9 3 1 6 3 9 1 n (I 6 B 1 1 V. !> 9 n 4 ti 1 n 2 (I 5 S i s.d. 2 3 •1 1 3 C 1 3 a ■3 I s 8.(1. 3o 30 7 (i -' I) 1 1; 06 030 :; 9 ! !i 1 11 1 1 (I 1 1 1 ij « I 6 '.',10 16 10 J I .1 U U I) otic I , 1 ,1 It 4 M 'J I u 1 I .J 3 .'1 1 tj ■i r, 2 « 1 f. 50 AMENDED TA Entering every Copy ofsummonf Kvery summonfl ) Knlcriog bailiffs Every copy of sul Entering set-off Ailjournment of « Hntering every ja Taking confession fcvery warrant, atl Krcry copy of jud> Transcript or certi county rcfjistrj Kntcring and givin .Making out Rummc For every affidavit 1 Kcturns to treasure Httendance on bo retained froii Erery search on be^ paid by the ap|): KTcry search for a p over a year old . Transmitting papen in addition to t return Kofi'iving papers froi entering same in and receiving hi paid, when the cl By the mu palitics are en on the owner regulating the found running A mastiff gc iiis nature be and the owner The stealin •)r by statute.- ir following statu By 4 k 5 V 'log, or shall state of confin common law, licfore a justic forfeit and pa «'■ bird, such sij tice shall seem For form of p: 'Bonn. SCHEDULE A. 287 AMENDED TARIFF OF ALLOWANCES TO BE RECEIVED BY CLERKS OF DIVISION COURTS IN UPPER CANADA. Entering eycry account and issuing tiummona ropy of summon!), farticulars of dumand or sct-olT, each KTcry summons to witness with any number of names Kntcring bailiff's returns to summons to defendant Every copy of subpoena wlion mndu by the cleric Entering set-off or other defence requiring notice to plaintiff Adjournment of any cause EntiirinK every judgment or order made at bearing Taking confession of judgment Everv warrant, attachment or execution Krery copy of judgment to another couuty Transcript or certificate of judgment for registration in the county registry office Entering and giving notice of jury being required Making out summons to jury, for each juryman For every affidavit taken, and drawing ihe sumo Rrturns to treasurer to be paid out of tho fee fund, including attendance on the judge to audit the same, each, and to be retained from the fee fund in bis hands Every search on behalf of a person not a party to a suit, ti) bo paid by the applicant Ktery search for a party to a suit when the pro';eedings are over a year old Tranfmittlng papers for service to another county or division, in nildition to tho necessary postage on transmission and return Receiving papers from another county or division for service, (. 1 1 C (s; 9 61 6 £ 8. D. 1 1 U 1 1 3 3 1 I 1 '.) 1 3| 1 .'! 1 Oi 1 3 u e! (> I 01 1 1 o! I (i 6 (i £ 8. D. 2 (110 3 .1 1 10 1 .-; 2 ' 1 3 13 1 r> 6 10 10 6 1 1 1 10 10 10 DOGS. By the municipal act, 12 V., c. 81, the scvorul munici- palities are empowered to make by-laws for imposing a tax on the owners, possessors or harbourers of dogs, and for regulating their running at large, and destroying the same if found running at large. A mastiff going at large, unmuzzled, from the ferocity of lii^ nature being dangerous, seems to bo a common nuisance, and the owner may be indicteJ. — 1 liurn^ 918. The stealing of dogs is not \.\, felony cither at common law, ,)r by statute. — 4 Bl. Com. 230 ; but is punishable by the following statute : By 4 »fc 5 v., c. 25, § 30, if any person shall steal any (log, or shall steal any boast or bird ordinarily kept in a 3 payable out of the same, nor unless in actual uninterrupted possession, or receipt of rent and profits, at least six colondar months before the date of the writ of election, unless the same shall have come by descent or inheritance, devise or marriage, or unless the deed or patent under which he claims shall have been registered three calendar months before the date of the writ ; provided that no person shall vote by virtue of any conveyance made to his wife after marriage, unless such conveyance shall have been registered three calendar months as aforesaid, or such person shall have been in possession for six calendar months before tlie date of the writ. § 31. And for cities and towns, the quahfication shall bo real estate of the yearly value of £5 lis. l^d., (equal to £o sterling,) or upwards, over and above all other rents and charges, and uninterrupted posses- sion of such real estate, or receipt of rents and profits six calendar months before the date of tho writ, unless the same shall have come by descent, &c., or unless the deed of con- veyance or patent so registered shall have been registered ikree calendar months before the date of the writ ; with similar proviso as above in respect to qualification by virtue of any conveyance to tho wife after marriage. § 32. Persons qualified to vote, notwithstanding any subsisting covenant, contract or agreement between landlord and tenant for the removal of buildings, or allowance of money therefor. [a) Tenant Voters. — § 33. Tenants not entitled to vote for any city or town, unless residing at the time within the limits of such city, or town, or liberties, and having so resided during the period of [f ft'c^i'^] calendar months next before the date of the writ, by actual residence in a dwelling house or (a) Sco po8t "Mcctive Franchise— Extention of."— IS Y., c. 87. ni V 3 '*; m .- tl; , 1 1 : -:.'i„ -4* a 296 fSUttiona* III I ■ ? .,,!., )J (J III I ') See also sag 88 t^ liiletl 10 be i\o of XTtV •ning and iSlrcUotitt* 297 the deputy shall, if required by any candidate or agent, note the same in the poll book. (6) Electors' Oath. — § 41. Voters maybe required by one of the candidates or his agent, and not otherwise, before voting, to take one of the oaths or affirmations as under, vi7. : if the election be for a county or riding, oath No. 10, 11, x2 or 13 ; if for a city or town. No. 14, 15, 17 or 18 if voting as a pro- prietor ; and No. 16 if voting as a tenant : and any such voter may be required to take the oath No. 19. Oath to be taken before the deputy returning officer, who on neglect or refusal, or administerirg any such oath without being re- quired, shall incur a penalty of XIO ; and any elector voting without taking such oath (when required) shall incur a penalty of j£10. If the voter shall refuse the oath, his refusal shall bo noted in the poll book, and his vote shall not be taken ; and if taken shall be void, and the officer shall incur a penalty of £10. British Subjects. — § 42. Such only by birth or naturali- zation and of the full age of 21 entitled to vote ; and in ease of dispute the party shall be allowed to prove himself a British subject, by producing a lawful certificate of naturali- zation, or, at his option, taking the oath No. 19 botbro the deputy returning officer. Oath of Allegiance. — §43. Deputy returning officers au- thorised to administer the oath. Unqualified Voters. — § 44. Any person voting, and know- ing himself to be unqualified, shall incur a penalty of ^£10, and his vote shall be void ; and any person voting more than once at the same election, shall incur a like penalty of ^£10, and such subsequent vote shall bo void. Fraudulent Conveyance. — § 45. Conveyance being made of any lands for the purpose of giving a vote, such vote shall be void, and the voter liable to £25 penalty ; and such con- veyance shall nevertheless be valid, and transfer the pro- perty out of the party executing the same, and vest the same in the other party ; and every agreement to annul or revoke or re-convey, shall be null and void. Females. — § 46. Not permitted to vote at county or city elections. Interpreters. — § 47. For appointment of. Qualification of Candidate, — § 48. Every candidate before making the declaration required by § 28 of the Union Act, shall, when personally required to make the said declaration, before he shall be elected, give and insert at the foot of the (6) See also same statute for additional oath, if required. 38 vl. ;ia1»i a; 4 ;a! ■;^i' m'^ '1 I m i| [i iif 298 IBUttionn. n.^i i ! J ■ 13 '■ J 'U I I ?i^l-Uu 'if m *'* i ' declaration, a correct description of the lands or tenements on which he claims to be qualified, and of their local situa- tion, by adding after the w ord " Canada," the following words, " and I further declare that the lands or tenements aforesaid consist of, &c.," and every person giving a false description shall be guilty of misdemeanor, and incur the pains and penalties of perjury. § 49. Any candidate, as well before or after the date of the writ of election, may voluntarily make such declaration, as in preceding section. But no such declaration need be made, unless required on or before the day of nomination, and before poll granted ; and when any such declaration shall be required, the can- didate may make the same at any time during the election : provided it be made before the proclamation at the close of the election ; and such declaration, voluntary or otherwise, may be made before the returning officer, or a justice of the peace, or the miiyor, or one of the aldermen of the city or town, who shall take and attest the same, thus : " taken and acknowledged before me," or words to the like effect, and by dating and signing such attestation and such declaration, delivered to the returning officer at any time before the close of the election, shall be a compliance with the law, and such returning officer shall, under a penalty of £50, give forth- with to the candidate an acknowledgment under his hand of the delivery of such declaration. Conservators of the Peace. — § 50. Returning officers and their deputies, after subscribing the oath of office, until the day next after the final closing of the election, sha^ll be conserva- tors of the peace, and invested with the powers of justices of the peace, for the maintenance of the peace, arrest, deten- tion or admission to bail, trial and conviction of any person or persons who shall break the law or trouble the peace ; and for the maintenance of peace and good order at such elections they may require the assistance of all justices, constables and other persons present, whether at the hustings or pollinfi places, and to swear in special constables ; and such return ing officer or deputy may arrest or cause to be arrested by verbal order, and place in the custody of one or more con- stables or other persons, for such time as he shall diem ex- pedient, any person disturbing the peace or good order ; or cause such person to be imprisoned under an order sip;ned by him, until any period not later than the close of the poll; which verbal order all persons shall be bound to obey with- out delay, under a penalty of £5. § 51. Special constables may be sworn in by the returning officer or deputy, on requi- sition by any candidate, his agent, or any two or more electo; the SI electio and pu not exc court. deemed Brih ploying corrupt houses ( by the i elected c giving or bearing t than .£5., voter sha] §57. Ent any meeti previous t( his usual p Strangci residence i election (e constables) armed with Jiving in th^ two miles o] Flags, ,fv to be suppJJ the day of 1 such eJectiol "r favour. \ four last cJaJ able by fine •ig six calt Poll Book A destroying, i| «rit of electitT affidavit, or l)e guilty of (entiary fron where, not el o"" both, as tf Administei SUrtfotifit. 299 electors. § 53. The returning oflScer or deputy may demand the surrender of arms and offensive weapons during the election : any person refusing, to be guilty of misdemeanor and punishable by fine not exceeding £5., or imprisonment not exceeding three calendar months, in the discretion of the court. § 35. Assault and battery during the election to be deemed an aggravated assault. Bribery, Sfc. — Any candidate, directly or indirectly, em- ploying any means of corruption, or threat, with intent to corrupt or bribe, or keep back any elector, or keeping open houses of entertainment, his election shall be declared void by the proper tribunal, and he shall be incapable of being elected or returned during that parliament. §55. Parties giving or receiving any gratuity or reward for voting or for- bearing to vote at any election, shall forfeit and pay not less than £5., nor more than .£50. § 57. And the name of such voter shall be struck off the poll-book by the proper tribunal. § 57. Entertainment not to be furnished by any candidate to ai»y meeting of electors assembled to promote his election previous to, or during the election, except entertainment at his usual place of residence. Strangers. — § 58. Prohibits persons not having a stated residence in the township for at least six months before the election (except the returning officer, his deputy, clerk, or constables) from coming into such township during the poll, armed with offensive weapons of any kind, or any person living in the townsl>ip to arm himself and approach within two miles of the poll. Flags, (f'O. — § 59. Ensigns, standards, colours or flags, not to be supplied by any candidate or other person, or used on the day of election, or within eight days before, or during such election, as a party flag. § 60. Nor any ribbon, label, or favour. 01. * .y person offending against any of the four last clauses, shall be guilty of a misdemeanour, punish- able by fine not exceeding X25, or imprisonment not cxcecd- Sg six calendar months. Foil Books.— i 62. Any person stealing or unlawfully taking, destroying, injuring or obliterating, or aiding therein, any writ of election, or return, indenture, poll-book, certificate or affidavit, or other document or paper under this act, shall be guilty of felony, and liable to imprisonment in the peni- tentiary from three to seven years, or imprisonment else- where, not exceeding two years, or fine or imprisonment, or both, as the court shall award. Adminutering Oaths. — § 63. Oaths under this act shall be v ■ y\ > 'III. "y'^ ^ 1 ■ t III ^ I ' , 11 ■ I. ji I:. I M: : • :T' I {iiffi!i:!fl«l(;U 300 isirctfonis. lawfully administered by the parties required to administer the same. Penalties, recovery of. — § 64. Penalties under this act recoverable with costs in any of the courts of competent jurisdiction ; and in default of payment the offender shall be imprisoned in the common gaol until payment : suits to be commenced within nine calendar months. Cities and Towns — § 64 — having the right to elect mem- bers, not to form any part of the county or riding, as regards elections ; and no person shall vote in any county or riding upon real estate in any city or town. Fees — § 66 — in the annexed schedule to be allowed to the several officers, viz. : To the lleturning Officer. For attendance on tbe flay of opening election £2 o For attendance on closing the election 2 For an election clerk for each of those two days, when required 1 For two constables on eacli of those two days h For each copy of proclaniation required by law to be posted 2 6 For each commission for deputy and election clerk 2 6 For each warrant to deputy to lake the poll 2 6 For each indenture 5 For each mile actually and necessarily travelled for attending elections, posting proclamations, and transmitting commissions and poll books {) (> For each poll book furnished to deputy 5 For each copy, {)er folio of one hundred words W And reasonable expenses incurred in j)roviding hustings, and reasonable expenses in transmitting poll books and returns to the clerk of the crown in Chancery. To each Deputy. For each day of liolding the poll | () () For the commission appointing a poll clerk 2 6 For a poll clerk, each day 10 And for mileage actually and necessarily travelled to and from the poll, jx-r mile 6 F'or two constables, each per diem .j For mileaee actually and necessarily travelled for transmitting poll books to re'urning officer, ])er mile 6 And reasonable expenses incurred in providing hustings or polling places. IP To Justices of the Peace, 301 When required to administer oath in a. public manner, mileage at the rate of, per mile 6 Such fees and allowances to be paid to the returning officer, by warrant on the receiver general, and distributed to the several parties. § 67. One copy of this act, with index, and one for each of his deputies, to be transmitted with the writ of election to the returning officer. § G8. (a) Contains a provision for extending the time of polling in the townships of Waterloo and Wilmot. § 69. Act may be annulled or repealed this session. For schedule and forms, see " The Act." Elective Franchise — Extension of. By 18 v., c. 87, s. 1, former acts 16 V., c. loB, and 18 Y. c. 7, arc repealed. § 2. In addition to the penons qualified as voters under the 12 V., c. 27, the following persons, being of the full age of 21, and subjects of her Majesty by birth or naturalization, and not being otherwise disqualified, shall be entitled to vote at elections, viz : 1. Cities or Toivns. — Every male person having been i\ months previous to the election and at the time of voting the legal bond fide owner or freeholder, tenant or occupant of real property within any city or town entitled to send a raeinber to parliament, of the actual value of £75 or up- i\ards, or of the yearly value of £1 10s. or upwards, or having been six months previous to and at the time owner, tenant or occupant of any real property within the limits of such city or town for the purposes of representation (but not for municipal purposes) of the actual value of JCoO or upwards, or yearly value of <£5. 2. Townships. — Every male person having been for six I months previous to and at the time of voting, the legal and kna fide owner or freeholder, tenant or occupant of real property, of the actual value of .£50 or upwards, or yearly value of £5 or upwards, in any parish, township, town, village or place not being within anj^ city or town entitled to send a member to parliament 3. Lessees. — No person shall bo entitled to vote as tenant or occupant of any real property unless the original lease was for a term of not less than one year ; and persons voting as tenants or occupants of real property shall vote m^ iiilliii •nivi'i (a) Repealed by 1(> V., c. 152, s. 11. HMn'. A'fV ]MiKv • I h y li' Wi' ^ '; ^ 'a I l: ifr t ■ I , ■( 1(V!1 302 iSKctfons. in the ward or place in which such property lies ; and no person shall be deemed an occup'^nt of real property, unless he sliall occupy with the consent of the owner of the property, and with the intent of obtaining the title. § 4. Joint Tenants, Partners, ^c. — Whether owners tenants or occupants may vote separately, if the actual or yearly value of his part or share would be suflBcient, if held by him separately, (except members of bodies corporate). § 5. No person shall be entitled to vote on real propertv on which any instalment of purchase money or rent or other money shall be due to the owner and unpaid. Oath of Qualification — And any person claiming the right of voting under the election act of 1849 (12 V., c. 27) shall if required by any candidate or agent, or deputy returninr^ officer, take the oath or affirmation, No. 5 in the schedule to this act. § (j. Other Oaths. — Persons claiming to vote under this act shall take the oath or oaths Nos. 1, 2, 3, i', in the schedule (according to the case), if required by any candidate, a (rent or deputy returning officer. § 7. Provisions of the elections act of 1849 with respect to disqualification inconsistent with this act repealed the remainder to continue in force. Controv( rted Elections. By 14, 15 v., c. 1, the petition to the House of Assembly may be signed by any elector or candidate. § 2. If arising out of an election on the expiration or dissolution of anv parliament, must be presented to the House of Assembrv within the first fourteen days of the session : provided tlu' house shall, on the last of such lourtecn days, have rfone through with the daily routine of presenting and brin"iii(T up petitions ; and if not, then such petition shall be prc^ sen ted on the first day after the house shall have "one through such daily routine. § 3. Petitions against other elections to be presented within the first fourteen davs of the session next after such return. § 4. if parliaiuent in session at the time of such return, then such petition .shall be presented within the first fourteen days after such return brought into the office of the clerk of the crown in Cliancerv. § 0. Si'.ch petition may be brought up as a matter of privilege during any part of the day. § 0. No session which si;all uut have lasted fifteen days to be deemed a session in such cases. § 7. In cases of alleged bribery or corruption the pctitiou may be presented within twenty-eiglit days, instead of four- teen. § 8. If not presented in time, not to be deemed au isienfonis. 303 election petition. § 9. May he withdrawn on certain con- ditions. Jlecognizances. — § 10. Before presentation of any petition the petitioner to give security hy recognizance for j£200 for payment of costs. § 11. Sitting member to give security for costs to the amount of £100 before issuing a commission on his behalf to take evidence. § 12. Sureties to justify upon oath for the amount they are bound for. § 13. To be desig- nated by their names, residence and occupation. § 14. Re- cognizances to be entered into before the Speaker or a justice of the peace. § 15. Money may be deposited instead of giving security. § 16. Petition not to be received unless the Spea- ker certify by indorsement that the requisite security has been entered into, or amount deposited. The other clauses relate to subsequent proceedings, for which the reader is referred to the act. Evidence. — By 20 V., c. 23, s. 1, notice to be given by the party intending to contest the election, on ground not appearing on the face of the return, to the member elected within fourteen days after the close of the election, such notice to specify the facts on which he intends to contest the election. § 2. The member elect, within fourteen days after service thereof, shall answer such notice by admission or denial of the facts, setting forth the facts upon which he rests the validity of such election, and he shall not bo per- mitted to give evidence of any other facts or circumstances. ,v 0. Such answer to be served, within the time limited, by ilolivering a copy to the party in person, or by leaving the jame at his residence with some grown-up person of his family, and proved by affidavit sworn before a justice or commissioner, stating the time, place and manner of service. o4. Either party desirous of taking evidence may npply to the judge of the county court in Upper Canada, residing or having jurisdiction witliin the electoral division, to take such ividence : and the judge shall forthwith appoint the time and place, of which six !,') for every such passenger so reported, conditioned to indemnify the province or any municipality, village, city, town or county, or charit- able institution therein, from any expense, or charge for three years for the maintenance of such passenger. § 13. And in case any such passenger shall become chargeable within the three years, such bond shall be enforced for his support. § 14. The master of any vessel refusing to execute such bond, shall incur a penalty of jGlOO. § 15. Such bond, ,U: Jlivl !■? \m : , W ' m^A' I fc^;i !.:■':■ ' = 'l;ia- a' m: ?«*■ ■ ■Hi;'',' ■' :i ' T ^; itii ll 310 £»raiie* when executed, to be transmitted to the Receiver-General. And it shall be the duty of tbT chief emigrant agent to report any claims made for the support of such passengers to the Governor, and the penalty in such bond shall be sucrl for. § 16. Passengers to be landed with their baggage on wharves free of expense, at the usual landing place of the port, at reasonable hours, under a penalty of £10 for any offence. § 17. Steam vessels receiving emigrants on board in the stream at Quebec, are not to proceed upwards without first returning to the wharf and remaining there at least two hours, under a penalty of £10 on the master of such steam vessel. § 18. Repeals certain former quarantine acts. (L C. 36 G. III., c. 5 ; 12 V., c. 7.) § 19, The Governor in council is authorised to make such regulations with respect to quarantine and purifying vessels, as may bo necessary for the preservation of'public health, and the prevention of rlis- ease from spreading ; vnd by such regulations may impose fines not exceeding .£100 on persons contravening the law. § 20. The quarantine at Grosse Isle to consist of a superin- tendent of emigration and a medical superintendent, with subordinate help, ^s the Governor in council shall (locm necessary. § 21. Regulations to be published in the ofliciiil " Gazette." § 22. Expenses under this act to be defraved out of public moneys. § 23. All duties and penalties im- posed by this act to be a special lion on the vessel. § •l\. When collected to be paid over to the Receiver-General. ^ 25. Moneys raised under this act to be applied in dcfrayini' emigrant expenses. § 20 and folloAving sections relate to the mode of recovering and application of penalties. By the general customs act 12 V., c. 1, the following articles in the occupation or employment of persons coniin^ into this province for the purpose of actually settling therein, are exempt from duties, viz : wearing apparel in actual use, and other persona} effects, not merchandize ; horses and cat- tle ; implements and tools of trade of handicrafts men ESCAPE. Where a person hath another in lawful custody upon an arrest, whether made by himself or another, if he suffer him to go at large, before he is delivered by lawful autiiority, 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. 19, § 2. And the imprisonment 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 suffer the prisoner to go out for a time though he after- IBUtVt^U 311 wards return. — lb. § 5, and Dalt. c. 159. Where a person is found gviilty on an indictment for a negligent escape, he is punishable by fine and imprisonment, according to the quality of the offence.— 2 Haw. c. 19 ; 1 Hale, 600, 604. 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 guilty but the actual offender. — 2 Haw., c. 19, § 23. By statute 16, G. XL, c. 31, to assist a prisoner convicted of treason or Colony to attempt an escape, is felony, and subjects the offender to transportation for seven years ; and if the party bo committed for petit larceny, or on a civil pro- cess 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 facili- tate the escape of prisoners convicted of, or committed for treason or felony, the offender shall be transported for seven years ; or if for petit larceny, or civil process for a debt, &c., amounting to £100, he shall be deemed guilty of a misdemeanor, and be liable to fine and imprisonment. § 2 & 3. And assisting a felon to escape from a constable, is by this statute al*) made felony, and subjects the offender to transportation for seven years. — lb.. This statute does not extend to causes where an actual escape is made, but only to cases where an attempt is made, without effecting the escape. — H. v. Tilly and others, 0. B. Sess. 1795. ESTREAT. An estreat (from extractum) is a true copy or extract of some original writing or record, containing an entry of fines or amerciaments 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 7 W. IV., c. 10, § 3, all fines, issues, and amer- ciaments, and forfeited recognizances, (except such as shall by any act be directed to bo otherwise levied), which shall be set, imposed, lost, or forfeited, by or before any general quarter sessions of the peace, shall, within 21 days alter the adjournment of the court be entered on a roll by the clerk of the peace, which roll shall be made out in duplicate and signed by the clerk of the peace. § 4. One of the said rolls to remain deposited in the office of the clerk of the peace, and the other shall, as soon as prepared, be sent by the clerk of the peace, with a writ oi fieri facias and capias, according to 312 ^»tvtut i''i.l the form in the schedule marked B., to the sheriflT of the district, which writ shall be authority to such sheriff for levying the same, or for taking "ito custody the bodies of such persons, in case sufficient goods cannot be found ; and every person so taken shall be lodged in the common gaol of the district until satisfaction be made, or until the general quarter sessions shall, upon cause shewn by the party as hereinafter mentioned, make an order in the case, and such order be fully complied with. § 5. In every case of default whereby a recognizance may be forfeited, if the cause of absence be made known to the court, the court may on con- sideration of such cause, and also considering whether by the non-appearance of such person the ends of justice have been defeated or delayed, forbear to order the recognizance to be estreated : and with respect to all recognizances estreated in court, and fines imposed for the non-attendance of any juror or constable, or of any public officer bound to attend at such court, it shall be in the power of the cliaii-. mail uf the sessions, and any two justices who presided at such court, to make an order directing that the sum forfeited upon such recognizance or fine imposed be not levied, pro- vided it shall appear satisfactorily that the absence of such party was justifiable ; and for such purpose it shall be i eccs- sary for the clerk of she peace, before sending to the sheriif any I'oll with a writ as directed by this act, to submit the same to the chairman for his revision, who, taking to his assistance two of the presiding justices, shall make a minute on the roll of such recognizances and fines as they may think fit to direct not to be levied, and the sheriff shall forbear to levy the same. § 6. The sheriff' upon taking lands or tene- ments in execution, shall advertise the same in like manner as lands in execution in other cases, and no sale shall take place in less than twelve calendar months from the time the writ shall come into the sheriff' 's hands. § 7. The clerk oF the peace shall at the foot of each roll make and take the following affidavit : " I A. B. (describing his office) make oath that this roll is truly and carefully made up and ex- amined, and that all fines, issues, amerciaments, recogni- zances and forfeitures, which were sot, lost, imposed or forfeited, at or by the court therein mentioned, and ^vhich in right and due course of law ought to be levied and paid, are to the best of my kno>yledge and understanding inserted in the said roll, and that in the said roll are contained and expressed all such fines as have been paid to or raised by me, cither in court or otherwise, without any wilful discharge, omission, misnomer, or defect whatsoever. So help mo God !" il.tl IBUtVtUU 313 2(\ or IavIiIcIi \)ukl, sertcd id anil liarge, Uod'l" which oath any justice of the peace for such district may administer. § 8. The justice before whom any recognizance shall be entered into, shall give at the time of entering into such recognizance to the person or persons entering into the same, and to each of his sureties, a written or printed paper or notice, in the form in the schedule marked 0., and every such justice shall in such recognizance state and specify par- ticularly the profession, art, or trade of every person so enter- ing into such recognizance, together with the christian name and surname, and also the place of his or her residence. § 9. Persons on whom levies are made for forfeited recognizances •nay give security to the sheriif or other officer for their ap- pearance in court at the return day of the writ, to abide the decision of the court, and to pay such forfeited recognizance or money to bo paid in lieu or satisfaction thereof, together ^\ith such lawful expenses as shall be ordered by the court, and thereupon the sheriif may discharge such person out of custody : provided that in case such party shall not appear, it shall bo lawful for the court forthwith to issue a writ of feri facias and capias against the sureties. § 10. The court of general quarter sessions into which the wi'it oi fieri facias or capias sliall be returnable, may inquire into the circum- stances of the case, and in its discretion order the discharge of the recognizance, or money paid or to be paid in lieu thereof, and make su<^h order thereon as to them may appear just. § 11. The shcriflF shall return the writ on the day the same is returnable, and state on the back of the roll attached to such writ what shall have been done in the exe- cution thereof, which return shall be filed in the court, and ii copy thereof certified by the clerk of the peace shall be forthwith transmitted to the Receiver-General, with a minute thereon of any sums remitted by order of the court, in the whole, or in part, or directed to be forborne. § 12. The sheriif shall without delay pay over all moneys by him col- lected to the lleceiver-Gcneral. SCHEDULE A. William the Fourth^ by the Grace of God, ^c. To the Sliorifl of . Greeting : You are hereby commanded to levy of the goods hud chattels, lands and tenements, of all ana singular the persons in the roll or extract to this writ annexed meiuioned, all and singular the debts and sums of money upon them severally imposed and charg d, as therein is specified, and if any of the said several debts cannot be levied, by reason of no goods or chattels, lands nr ten'^mcnis, being to be found, belonging to the said parties 40 WVfV. 1 I", i a' m 't,'\ I IV i'. 1^ . ■ I! 314 IS0tt(llt« II. 'Iv -!,' ■ * , i'. '. >' :»i '« respectively, then and in all cases that you take the bodies of the parties respectively,and keep them safely in the gaol cf your dis- trict, there to abide the judjrtnent of our Court of King's Bench, upon any matter to be shewn by them, or otherwise to remain in your custody, as aforesaid, until such debt shall be satisfied, unless any such person shall give sufficient security for his or her appearance at the said court, on the return day hereof, for which you will be held answerable ; and what you shall do in the premises make appear before us, in our Court of King's Bench, at Toronto, on the day of term next, and have you tiien and there this writ. Witness, &c. A. B., clerk of assize, at the last assizes, for the district of , this day of , 18 . SCHEDULE 13. William the Fourth^ by the Grace of Crod, jfe. To the Sheriff of . Greeting: You are hereby commanded to levy of the goods and chattels lands and tenements, of all and singular, the persons in the roll or extract to the writ annexed mentioned, all and singular, the debts and sums of money upon them respectively imposed ami charged, as therein is specified, and if any of the said several debts cannot be levied, by reason of no goods or chattels, lands, or tenements, being to be found, belonging to the parlies res- pectively, then and in all cases, that you take the bodies oi the parties respectively, and keep them safely in the gaol of yourdis- trict, there to abide the judgment of the court of general ()iiarter sessions for the said district, upon any matter to be shewn by them, or otherwise to remain in your custody, as aforesaid, until such debt shall be satisfied, unless any such person shall give sufficient security for his or her appearance at ilie said court, on the return day hereof, for which you will be held answerable ; and what you shall do in the premises, inako appear at the next court of general quarter sessions, of the peace, for the said district, on the first day of the said cmirt, and have then and there this writ. Witness, C D., clerk of the peace for the district of , this day of IS . SCHEDULE C. District, ) Take notice, that you , arc bound in the to wit. ^ sum of pounds, and your sureties in the sum of pounds each, to apj)ear at , to be holden nt and unless you personally nuike your appearance accordin::lv, the recognizance entered into l>y yourself and your sureties will be forthwith levied on you and your bail. Datt M lliis day of IS . A. B. justice of the peace for tin district. By 4 & 5 v., c. 124, § 49, reciting that the indi. , -''uinate estreat of recognizances iuul been in many instances produc- tive of hardship, it is enacted, and the officer of the court is require zances, the offe; of the p stating peared, thereby, shall lay deliver J, of the pe court, an such ord( as shall a not estrci of the sail Evident cs, given i criminal si pctent wit either dirt common lu not compel so by act o The confet before just confessing, $3. The witness is, but the cr, character ; causes, froir ti'nt.~2 n. If a pers( jury, suborr other offenc charge of fa ht? is inconi bribing a wi barratry or c —Russell proved by tl ju'lgmont iiimself that ffttd then ua lB\}intntt. 315 said. held Iniuko It' the 'iiuri, if iho In ihi' |iu die L liivily, |i relies Ss slriot, Ininatc Iroduc- 3urt is required to prepare a list in writing of forfeited recogni- zances, specifying the natnej of the defaulters, the nature of the offences, with the residence, trade, professL.i or calling of the parties, distinguishing the principals from the sureties, stating the cause, if known, why the parties have not ap- peared, and whether the ends of justice have been defeated thereby, and such officer before estreating such recognizances, shall lay such list, if at a court of oyer and terminer or gaol delivery, before one of the justices thereof, or if at a session of the peace before two justices, who shall have attended such court, and who are required to examine such list, and to make such order touching the estreating of any such recognizance as shall appear to them just ; and the officer of the court shall not estreat any such recognizance without the written order of the said justice or justices. EVIDENCE. Evidence, in its general sense, is the testimony ot witness- es, given upon an issue joined between parties in a civil or criminal suit. — 1 Inst. 283. In general, a person is a com- petent witness unless interested in the event of the suit, either directly or indirectly — 7 T. J{. 02 ; and by the common law, informers wiio participate in any penalty are not competent witnesses ; but they are sometimes rendered so by act of parliament in particular cases. — 1 Ph. Ev. 117. The confession of a defendant taken on an examination before justices, is allowed to be evidence against the party confessing, but not against third persons. — 2 Haw. c. 4(j, ^ 3. The distinction between a credible and a competent witness is, that the former is not disabled from being 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 incompc- U'nt.-'2 11. 11. 270, 277. If a person be convicted of treason, felony, forgery, per- jury, subornation of perjury, attaint of false verdict, and other offences of the same description, which involve the charge of falsehood, and afl'ect the administration of justice, he is incompetent to give evidence. So, if convicted of bi'ihing a witness to absent himself and not give evidence ; barratry or conspiracy to accuse another of a capital offence. —Russell on Or. 592, 51)8. The incompetency must be proved by the production of the record of conviction and judgment. — Gill). 128, 129. The admission of the witness himself that he had been convicted of grand Inrceny, and waa then under sentence, was held insufficient. — 8 Uast. 78. ^11 l:!fP'^';Hi .11 I t 316 IBvuminution. And an admission by a witness that he has been guilty of perjury, affords no objection to his competency, whatever effect it may have upon his credit. — R. v. Teal, 11 Hast. 189. And by stat. 9 Anne, c. 14 & 15, a person convicted of winning by fraud or ill practice in certain games is render- ed incompetent. The incompetency arising from inf^imy may be removed — Ist, by endurance of punishment; 2nd by pardon ; 3rd, by reversal of the punishment. *By statute 31 G. III., c. 35, no person shall be incompetent by reason of a conviction for petit larceny. By 4 & 5 v., c. 24, § 22, offenders convicted of misdemea- nors affecting their competency as witnesses, and havint^ endured the punishment adjudged for the same, shall not afterwards be deemed incompetent witnesses (convictions for perjury or subordination of perjury excepted). A witness 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, — T. Ji. 440. An infant fourteen years of age, and even under, if of compe- tent discretion, may be sworn to give evidence. — 2 7/. //. 278. The deposition of a witness taken ertra jiidieialhi before a magistrate is not evidence. — Leach, 307. Husband and wife are not admitted as evidence against each other, except in treason ; but in polygamy (for the second morriarre 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. — Buller, N. P. 28(3. A Ionian living with a man as his wife, though not actually so, cannot be examined as a witness on his behalf. — Campbell v. Twan- low, 1 Price, 81 ; 1 J*hil. Ev. 82. Quakers, Menonistsand Tunkers, &c., are admissible as witnesses upon their simple B to say ativ affirmation. — *10 Cr. IV., c. 1. | oblifod to ever you given in evi ever the taken (low signed by t positions of -IS hereinaf the said ace •igiiinst him that the jus not in fact s or justices, b ment, shall 5 "that he hi EXAMINATION. Sammary Cunvictions. By 10 v., c. 178, § 11, it is enacted that every complaint or information shall be heard, tried, determined and ad- judged by one or more justices (according to the act or acts upon which the complaint shall be founded,) and if there be no direction in the act in this respect, then sucli complaint or information may be heard, tried and adjourned by any one justice of the division, where the matter of complaint shall have arisen : and the room or place in which such justice or justices shall sit to hear and try any such complaint, shall be deemed an open and •public court, to which the public general] ently co plaint ii defence cross exj every co plaint, ai amined b See fu; viction." By 16 any perso charged vi before he or admit 1: person, wl ness prodi affirmation stances of such dopoi witnesses, i SIO. Afl part of tl (ironeof t becomplol iiesses, rea taken agaii to the like Pi mpnminntion. 317 generally may have access, so far as the same can conveni- ently contain them. And the party against whom such com- plaint is laid shall be admitted to make his full answer and (iefcnce thereto, and to have the witnesses examined and cross examined by counsel or attorney on his behalf. And every complainant shall be at liberty to conduct such com- plaint, and to have the witnesses examined and cross-ex- amined by counsel or attorney on his behalf. See further on this subject under the title " Summary Con- viction." Indictable Offences. By 10 v., c. 179, § 9, it is enacted that in all cases where any person shall bo brought before any justice or justices charged with any indictable offence, such justice or justices, before he or they shall commit the accused to prison for trial, or admit him to bail, shall in the presence of such accused rersou, who shall be at liberty to put questions to any Avit- ness produced against him, take the statement on oath or affirmation of those who shall know the facts and circum- stances of the case, and shall put the same in writing, and such depositions shall be read over to and signed by the witnesses, and by the justice or justices taking the same. ijlO. After the examination of all the witnesses on the part of the prosecution shall have been completed, the justice (ir one of the justices, by or before whom such examination shall be completed, shall, without requiring the attendance of the wit- nesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to tlie like effect — " Having heard the evidence, do you wish to say any thing in answer to the charge ? You are not obliged to say any thing unless you desire to do so, but what- ever you say will be taken down in writing, and may be irivcn in evidence against you upon your trial ;" and what- ever the prisoner shall then say in answer thereto shall be taken down in writing, and read over to him, and shall be signed by the said justice or justices, and kept with the de- positions of the witnesses, and shall be transmitted with them as hereinafter mentioned : and afterwards upon the trial of the said acoisod person, the same may be given in evidence against him without further proof, unless it shall be proved that the justice or justices purporting to sign the same, did not in fact sign the same. Provided always that such justice or justices, before such accused person shall make any state- ment, shall state to him, and give him clearly to understand "that he has nothing to hope from any promise of favour, 'f; * f: •lii 'I 318 ^Vttution. I ■ ■ % ■■: ^ir\^ t ■ . • ft; .: . .I'll. Pl:ii. \:l' Ml ^■i:1i and nothing to fear from any threat which may have been holilen out to him to induce him to make any admission or confession of his guilt, but whatever he shall then say, may be given in evidence against him upon his trial, notwith- standing such promise or thrert. Provided nevertheless that nothing herein contained or enacted shall prevent the pro- secutor in any case from giving in evidence any admission or confession, or other statement of the accused made at any time which would by law be admissible as evidence against such person. § 11. The room or building in which such justice or justices shall take such examination and statement as aforesaid shall not he clcemed an open court for that purpose : and it shall be lawful for such justice or justices, in his or their discretion to order that no person shall have access to, or be, or remain in such room or building without their consent or permission if it appears to him or them that the ends of justice will be best answered by so doing. § 11>. After the examination is completed, the accused is entitled to have copies of the depositions from the officer in charge, on payment of a reasonable sum, not exceeding the rate of three pence for each folio of 100 words. 'Mith vspect to ''' fiaiV and other matters see post title " Indictable Offences." EXECUTION. Execution is the last stage of criminal proceedings. This must, in all cases, be performed by the sheriff, or his deputv, whose warrant for so doing was anciently by precept, under the hand and seal of the judge. For a long time past, how- ever, it has been the established practice for the judge to command execution to be done without any writ. Tlie usai^e is for the jui/ the neck ;" — 'formerly, in the days of latin and abbreviation — sus. per. eoU. for i^usi>en(lafur]>er collum. This is the only warrant which the sheriff has for so material an act as taking awav the life of another. — 1 Bl. Com. 402. 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 IJench : which court may award execution in the county where it sits. — »3 Inst, 31, 211, 217; 4 BL Com. 404. If upon judgment to bo hanged by the neck till dead, the criminal be not thoroughly killed, but revives, the she no exec to be in ensue.— body of the kin^ pleases ; up the b reprieve, the latt( order e^ Hale, 41 although cause to i this plea matrons, bring in child, unl cation sin she is eith not io hav prisoner b and award reprieve hi knows not senses, to 1 be also av( he is not tl case, a jur such collati time allow! his witness! attnintc'l. *\^y stat| punishment dividing hii sentence to) drawn upoij lianged by wards the IJ Hiized;"' aij his bo(iy sll dissection. the judge nl Bv 4& "ounced, al lEvtmtion. 319 the sheriflF must hang him again, for the former hanging was no execution of the sentence ; and if a false tenderness were to he 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 execution, hath also power to grant a reprieve. — 2 ffale, 412. When a woman quick with child is condemned, although this is no cause to stay the judgment, yet it is good cause to respite the execution until she be delivered. Upon this plea 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 ivith child — for barely with child, unless it be alive in the womb, is not sufTicient — exe- cution 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 Bl. Com. 'iT). If a jirisoner become non compos mentis between the judgment and award of execution, the judge ought in this case also to reprieve him, for furiosus solo furiore jmnitur ; 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 attainted, and the like. In thit' case, a jury shall be cnipannelled to try the facts. In all such collateral issues, the trial must be instantcr, and no time allowed the prisoner to make his defence, or produce his witnesses, unless he will make oath he is not the person attaintel. — Fost. 42. *Uy statute 8 \Vm. IV., c. 3, § 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 bo drawn upon a hurdle to the place of execution, and be there hanged by the neck till such person be dead, and that after- wards the body of such person shall be dissected and anato- mized ;"' and when any person shall be convicted oi' murder, his body shall be delivered by the sheriff to a surgeon for dissection. § 20. After sei»tence pronounee 320 iSrtottfon* and tlio court before which the conviction may bo had shall have the same power, in all respects, as after conviction foi- other capital offences. § 5. Every person convicted of mur- der shall, after judgment, be confined in some safe place within the prison, apart from all other prisoners, and shall be fed with bread and water only, and with no other food or liquor except in case of receiving the sacrament, or in cuse of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered : and no person but the gaoler and his servants, and the cliaphiin and surgeon of the prison, shall have access to any such con- vict without the permission in writing of the court or ju(l(»c before whom such convict shall have been tried, or of the sheriff or his deputy. EXTORTION. Extortion is an abuse of public justice, consisting in the unlaAvful taking by an officer, by colour of his office, of anv money or thing of value, where either none at all i« due to him, or not so much is due, or before any is due. — Co. Zit. 368 ; 10 Rep. 102. This offence, it has been justly ob- served, may be, in some cases, considered more odious thnu robbery ; because it carries with it an appearance of truth, and is often accompanied with perjury, by the breach of an oath of ollice. The punishment for this offence, at conniiun 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 of Westminster 1, (3 £d. /., c. 20), by which any sherilf, u\- other king's officer, who shall take any reward to do his of- fice, shall yield twice as much, and shall be punished at the king's pleasure ; under which statute an action lies also to recover this double value. — -i Com. Dig. iV2^i. But justices of the peace, whose office was instituted after the act, are bound by their oath of office to take nothing for the execu- tion of their office but of the king, and fees accustomed, am! costs limited by statute. And generally, no public odiccr can take any other fees or rewards than those given him bv the statute, or such as have been anciently and accustoniabrv taken, without being guilty of extortion. — Dalt. c. 41. It is extortion in a gaoler to obtain money from his pri- soner, by colour of his olfice. — Jl. v. Bi-owjldon, Trcm. P. C. Ill ; in a coroner to refuse taking an inquest till his fees are paid. — 3 Inst. 149 ; or in an under sheriff to ohtain his fees by refusing to execute process till they are paid, or to take a bond for his fee, before execution is sued out.— 1 Salh m take moi Ray, 14! ther to e: actually < By4(S threaten t with man] mit such ( or offering any persoi or permit extort or ^ such perso; such perso conviction 1 vincial peni term not k other prisor ing two yea By 10 & ; ciously, by substance, d person bein; building wit life of any p explosive sul grievous bod and raalicioi substance to received by other danger upon, or othi or other des; burn, maim, harm, shall, of felony. § court, to be not less than mon gaol not §b*. Malici or near any b intent to do a or :e an 41 IBvplo^i^t S^uftutuntu 321 Salk. 330. It is also extortion in a miller or ferryman to take more toll than is due by custom. — R. v. Burdett, 1 Ld. Jlai/, 149. It is also an indictable offence to persuade ano- ther to extort money from a person, whereby money was actually extorted from him. — K. v. Tracy, 3 ^alk. 192. By 4 & 5 v., 0. 25, § 8. If any person shall accuse or threaten to accuse another of the abominable crime of buggery, with mankind or beast, or of any assault with intent to com- mit such crime, or of any attempt, or endeavour, or making, or offering any solicitation, persuasion, promise or threat to any person whereby to move or induce such person to commit or permit such abominable crime ; with a view or intent to extort or gain from such person, and shall by intimidating such person by such accusation or threat, extort or gain from such person any property, shall be guilty of felony, and on conviction liable to imprisonment with hard labour in the pro- vincial penitentary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceed- ing two years. EXPLOSIVE SUBSTANCE. By 10 & 11 v., c. 4, § 1, any person unlawfully and mali- ciously, by the explosion of gunpowder or other explosive substance, destroying or damaging any dwelling house, any person being therein ; § 2, or destroying or damaging any building with intent to murder any person, or whereby the life of any person shall be endangered ; § 3, or shall by any explosive substance burn, maim, disfigure, disable or do any grievous bodily harm to any person ; § 4, or shall unlawfully and maliciously cause any gunpowder or other explosive substance to explode, or send, or deliver to, or cause to be received by any person any explosive substance, or any other dangerous or noxious thing, or cast or throw at or upon, or otherwise apply to any person any corrosive fluid, or other destructive or explosive substance, with intent to burn, maim, disfigure, disable, or to do some grievous bodily harm, shall, although no bodily injury be effected, be guilty of felony. § 5. Offenders liable, at the discretion of the court, to be imprisoned in the provincial penitentiary for not less than seven years ; or to be imprisoned in any com- mon gaol not exceeding three years. § 6. Maliciously placing or throwing in, into, upon, against or near any building or vesssl, any explosive substance with intent to do any bodily damage to any person, or to destroy or damage any building or vessel, or any machinery, work- 41 H 1' ii > [P-r <'i\ '■ n •1! '\ m\w m 322 iBvpl^fii^^ Sbni^ntuntt* iug tools, fixtures, goods or chattels, -whether any explosion takes place, and whether or not any injury be eflFected, ia also made felony, and the offender liable to seven years' imprisonment in the penitentiary, or two years' imprisonment in the common gaol, at the discretion of the court. § 7. Attempt by any overt act to set fire to any building vessel, or to any stack, or to any vegetable produce of such kind, and with such intent, that if the offence were complete the offender would be guilty of felony and liable to be im- prisoned seven years in the penitentiary, is also made felony and the offender liable to seven years' imprisonment in the penitentiary, and not less than three years, or imprisoned in any common gaol not exceeding two years. § 8. Any person knowingly having in his possession, or making or manufacturing any explosive substance, or other dangerous or noxious thing, or any machine, engine, instru- ment or thing, with intent to commit any offence against this act, shall be guilty of a misdemeanor, and liable to be imprisoned in any common gaol not exceeding two years. § 9. Such offenders under eiyhtccn years of age, liable to be publicly or privutcly whipped in addition, at the discretion of the court. ^10. Principals in the second degree, ami accessories before the fact, punishable as principals in the first degree : accessories after the fact liable to imprisonment in any comuion gaol not exceeding two years. § 11. Offen- ders may also be sentenced to hard labour, or to solitary con- finement not exceeding one month at a time, nor three cal- endar months in the year, at the discretion of the court. § 12. Any justice of the peace of the neighbourhood, upon reasonable cause assigned upon oath, may issue a warrant for searching in the day time any house, shop, cellar, yard or other building, or any vessel in which such explosive or noxious substance is suspected to be made or kept for such purpose as aforesaid ; and every person acting in the execu- tion of such warrant, shall have power to seize any gun- powder, explosive substance or any dangerous or noxious thing, or any machine, engine or instrument, which lie shall have good cause to suspect to be intended to be used in committing any offence under this act, and to remove the same to such proper places as he shall think fit, and detain the same, until ordered te restore it by any judge of the court of Queen's Bench, and such searchers sliall not be liable to any suit for such detainer, or for any loss or damage, other than by the wilful acts or neglects of the parties entrusted with the keeping thereof. § 13. Any gunpowder, explosive substance, or dangerous 'Mwms:h iFalfi^ itf (el|it0. 323 or noxious thing, or any machine, engine or instrument, intended to he used to commit any offence against this act, and seized accordingly, in the event of conviction, shall be forfeited, and sold under the direction of the court, and pro- ceeds paid to the Receiver-General. § 14. Any constable or peace officer may take into custo- dy, without warrant, any person found lying or loitering in any highway, yard or other place during the night, and sus- rected of intending to commit any felony under this act, and to detain such person until brought before a justice to be dealt with according to law. § 15. Such person not to be (letai?'ed after noon of the following day, without being brougLt before a justice. § 16. Offenders under this act not to be tried before justices in session, or any recorder of any city. § 17. Offences committed within the admiralty juris- diction to be tried accordingly. FAi.SE LIGHTS. Hanging out to cause shipwreck, is made felony by 4, 5, v., c. 26, 8. 8.— See ''Wreck." FALSE PRETENCES. See"C7tca«8,"— p.l37. Form of Indictment for False Pretences, 18 V., c. 92. County of } The jurors for our lady the Glueen on their to wit. \ oath present, that A. B., on the day of , in the year of our Lord, one thousand eiglit hundred and , at , in the county of , unlawfully, fraudulently and knowingly, by false pretences, did obtain from C. D. [six yards of muslin'] of the goods and chattels of the said CD. with intent to defraud. FALSE RECEIPTS. By 12 v., c. 12, if any keeper of any warehouse, or any forwarder, common carrier, agent, clerk, or other person employed in or about any warehouse ; or if any other faetov or agent, or any clerk or other person employed in or about the business of such factor or agent, shall knowingly and wilfully give to any person a writing, purporting to bo a receipt for, or an acknowledgment of any goods c ■ oiher property having been received in his warehouse, or in the warehouse in or about which he shall be employed, or in any other manner received by him or by the person in or about whose business he shall be employed, before the goods or other property named in such receipt shall have been actually delivered to him as aforesaid, with intent to mislead, deceive, injure or defraud any person or persons I 1^: ,«.,. m W\ ]-\^ liJ JV- 'm w HI. •' Wi 1 *'■ 324 ffnn* §'•■ J I whomsoever, known or unknown ; or if any person shall knowingly and wilfully accept or transmit or use any such false receipt or acknowledgment, the person giving and the person receiving the same shall be severally guilty of a mig. demeanor, and upon conviction liable in the discretion of the court to be imprisoned in the penetentiary, and kept at hard labour for any period not exceeding three years nor less than one year. § 2. And if any owner of merchandize, or other person in whose name merchandize shall be shipped or delivered to the keeper of any warehouse, or other factor or agent or carrier, to be shipped or carried, '' after the advance to him of any money, or the giving ^iim of any negotiable security by the consignee of such merchamlizc for his own benefit, and in violation of good faith, and with- out the consent of such consignee first obtained, make any disposition of such merchandize different from the agreement in that behalf between such owner or other ])crson aforesaid and such consignee at the time of or before such uioiioy being so advanced, or such negotiable security beinj; so given, with the intent to deceive, defraud or injure such consignee, such owner or other person aforesaid, and every other person knowingly and wilfully acting and assistiii;^ j^ making such disposition for the purpose of deceiving, de- frauding or injuring such consignee, shall be deemed guilty of a misdemeanor, and, upon conviction, liaP'> to tho same punishment as above. Proviso — that no in shall be subject to prosecution who shall, before ma 3uch dispo- sition, pay or tender to the consignee the full amount of any advance thereon. § 3. Interpretation clause. FEES. See title " Costs."— ''Justices of the Peace:' FELLING TREES. * By statute 2 V., c. 16, reciting, whereas much injury has arisen from tho felling of trees into the Grand Kivcr, Smith's Creek or River Nith, Orb's Creek or River Speed, in the district of Gore ; Otter Creek, in the district of London; the River Credit, in the Home District ; the River Otonabee, from Sturgeon Lake to Rice Lake, the River Scugog and River Trent, from Rice Lake to the Bay of Quinto, and Crow Uiver, in the Newcastle and Midland Districts ; Rivers Gananoque, Rideau, and Petite Nation, in the Johnstown district ; and the Rivers Tay, Mississippi. Bonchere, Madawaska, and Goodwood, in the Bathurst district, in this province, by en- dangering the mill-dams and bridges, and impeding the navigation thereof; it is therefore, by § 1, enacted, that iFelon»* 325 every person or persons, or their employers, cutting and felling any trees into the said rivers, or upon such parts of the banks thereof as are usually overflowed in the autumn or spring, by means of the rising of the waters of the said rivers, who shall not lop off the branches of such trees, and cut up the trunks thereof into lengths of not more than eighteen feet, before they are or shall be allowed to be float- ed or cast into the said rivers, or any of them, shall, for every such offence, forfeit and pay the sum of fifty shillings, or such leas sum as is hereinafter provided. § 2. Any per- son who shall cut down or fell any trees as aforesaid, con- trary to this act, shall, upon conviction before any two justices of the district, upon tho oath of one or more wit- nesses, pay such fine as to the justices tho case may seem to ro(iuire, not exceeding fif*;,' shillings, to be levied by distress, by execution under thr> hand and seal of either of said jus- ticca; and in default of such uistress or payment of the fine within three days after conviction, said justices may confine the offender in the common gaol of the district for tho space of ten days, unless the said fine and costs be sooner paid. § 3, All fines levied under this act shall be paid to the trea- surer of the district, and be applied to the improvement of the roads within tho same. ^ G. Tl-s act not to apply to any round or squared timber or trees, masts, staves, deals, boards, or other sawed or manufactured lumber or saw-logs, prepared for transportation to a market. 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. 04 ; and by the common hiw is against the life of a man — as murder, manslaughter, f'('/() de m; &c. ; against a man's goods — as larceny and rob- bery ; against his habitation — as burglary, arson ; and against public justice — as breach of prison. — 3 Inst. 31. And by statute — as foro;ery, kc. Before the reign of Hen. 1. felonies were punished with pecuniary fines ; for he was tho 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 Inst. 124. But this custom has been recently abolished by statute *3 Wm. IV., c. 3 ; by which statute the particular crimes which, for their enormity, ought to be punished with death, (a) are expressly mentioned ; and all other felonies (a) See also 4 & 5 V., c. 24, § 20, defining capital offences. t i'f ■J II ■i ii i ^ i 1M>:, "I ! I ■v.n k't-H n i. ' u v'LMi MM ■ i I'i'-- 326 !ftnttn. I; V, rm 'i 4 r< ^^M it : ' } shall be punished by banishment or transportation, or by imprisonment with hard labour. See further on this subject, title " Punishment." In all felonies, the offender forfeits to the king all his goods and chattels, absolutely, and the profits of all his free- hold estates for life, and for a year and a day after his death. — 1 Inst. 391. But now, by the 4 & 5 V., c. 24, § 21, after punishment endured, the same shall have the like effects as a pardon. § 23. Costs of prosecution, in all oases, to be paid out of the public funds, and no such fees shall in any case be demanded of or payable by the accused. FENCES. By 4 & 5 v., c. 25, § 32, if any person shall steal or shall cut, break or throw down, with intent to steal, any part of any live or dead fence, or any wooden post, pale or rail, set up or used as a fence, or any stile or gate, or any part thereof respectively, every such offender being convicted thereof before a justice of the peace, shall, for every such offence, forfeit and pay over and above the value of the article or articles so stolen, or the amount, of the injury done such sum of money not exeeding £5, as to the justice shall seem meet. By 4 & 5 v., c. 26, § 23^ if any person shall unlawfully and maliciously cut, break, throw down, or in any wise destroy any fence, of any description whatsoever, or any wall, stile or gate, or any part thereof respectively, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay over and above the amount of the injury done, such sum of money not exceeding £1, as to tlic justice shall seem meet. By the Municipal Act 12 V., c 81, the township munici- palities arc authorised to make by-laws for "scttliug the height and description of lawful fences." See pAso post title, '■'■Line Fences and Watercourses.'' FERRIES. *By statute 37 G. III., c. 10, justices in sessions arc em- powered to make such rules and regulations as shall appear necessary at ferries, and to establish rates and fees to be taken thereat, a list or table of which rules and regulations, rates and fees, shall be set up 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 fftttitu. 327 greater rate or fee, or of any breach of the rules or regula- tions, shall forfeit 20s., to be recovered before any one justice, and levied by distress and sale, one-half to the informer, and the other to the district. By 12 v., c. 80, so much of the above statute as vests any powers in the magistrates in quarter sessions, is repealed ; and by the 12 V., c. 81; the council of each county is au- thorised to make by-laws for regulating ferries, &c. By 8 v., c. 50, § 1, any person unlawfully Interfering with the rights of any licensed ferryman, by taking, carry- ing and conveying at any such ferry across the river or stream there, any person, cattle, carriage or wares, in any boat, vessel or other craft, for hire, gain, reward, profit or hope thereof, or doing any thing to lessen the tolls and profits of such ferry, upon being convicted thereof before a justice of the peace, shall forfeit and pay such sum, not exceeding £5, as to such justice shall seem meet, to be paid to the party aggrieved, {except when examined as a tvitness,) and in such case the money shall be ^ applied in the same man- ner as for a breach of the peace. § 2. If not immediately paid, the oflfender may be committed to the common gaol for any term not exceeding two calendar months, unless the penalty and costs sooner paid. § 3 License for a ferry to be under the great seal of the province. § 4. Defendant may appeal to the next general quarter sessions to be holden not less than twelve days after conviction. § 5. Ferries not to extend any greater distance than one mile and a-half on each side of the point nt which the ferry is usually kept, unless where limits previously established. Steamboats — Encouragement of. By 20 V., c. 7, § 1, it is enacted, that where a ferry is re- quired over any stream or other water within Upper Canada, and the two shores of such stream or water shall be in different municipalities not in the same county, it shall be lawful for the Governor in council to grant a license under tlio gicat seal of the province to either of such municipalities exclu- sively, or to both conjointly, as may be most conducive to the public interest, such license to confer on such municipality or municipalities a right to establish a ferry from shore to shore on such stream or water, and with such limit and extent as shall appear advisable to the Governor in council, upon con- dition that the craft to be used for the purpose of such ferry shall be propelled by steam ; and the craft shall bo of such dimensions, and engine of such power as the Governor in council shall direct ; and also subject to such further and 11 Mm hi? lit 'fet,..; 328 ffimn unXt ffovttitnvtn. WV\U' :V* I - i^^t'f %■' rw^ii other conditions as to the Governor may seem meet. § 2. Such license may be granted for any period not exceedin* fifty years. § 3. Upon the receipt of such license it shall bo lawful for such municipality or municipalities to whom such license shall have issued to pass a by-law declaring their determination to sub-let the said ferry, which ferry they are hereby authorised to sub-let for such price, and upon such terms, and to such parties, and on such conditions as to rates of ferriage to be paid as the said municipality or municipalities may deem best : provided that in so sub-let- ting the terms of the license from the CroAvn shall not in any way be contravened. § 4. In all cases where the one shore of such stream or water is within the limits of a city, town or incorporated village, and the other shore of the same in a township or other rural municipality, the license in such case shall be issued to the city, town, or incorporated village: provided always, that in all cases where the rural munici- pality opposite to any such city, town, or incorporated village, shall be an island, Jhen the license shall be granted to the island municipality. § 5. No license shall in future be granted to any ^.jrson or body corporate beyond the limits of the province, but to the municipality within the limits of which such ferry exists, or in case of the establish- lishmcnt of any additional ferry on the provincial frontier, then to the municipality in which any such additional ferry shall be established. FINES AND FORFEITURES. *By statute 11 G. IV., c. 1, it is enacted, that in all cases in which, by the criminal law of England, the whole or any part of any fine or penalty, imposed for the punishment of any offence, is in any manner appropriated for the support of the poor, or to any parochial or other purpose, inapplic- able to the existing state of the province, such fine or penal- ty, or such part thereof as shall be so appropriated, sliall 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. *J}y 7 W. IV., c. 14, § 5, fines not otherwise appropriabd shall go to the use of the province. By 4 & 5 v., c. 12, s. 1, justices of the peace are required to make a return of all convictions had before them imposing any fines, forfeitures, or penalties, to the next general (juarter sessions, and of the receipt and application of the same.' § 2. Under the penalty of X20. § 6. Sheriffs are required to transmit (fuarterli/ to the Inspector-General an account upon < them, lection By: law shj munici] proseci Ryl or any J if no o< same si suit of 1 the Cro jurisdict other pi one-half private ] belong t( *By St arc empo preventio; and nece the purpc orders an in any toy within haf By the] shall light of anv sai a penalty I the inspccl five miles r sale, and streets and By 20 within wh« corporatetl fire shall lf!;^!!!:*'-^-j| ■'. -i' ,1'; I «' U'ii^ :ffivtmtn* result of negligence or accident, and to act according to the results of such inquiry ; and for the purpose aforesaid such coroner shall summon and bring before him all persons whom he may deem capable of giving information or evidence touching or concerning such fire, and shall examine such persons on oath and reduce their examinations to writing and return the same to the clerk of the peace for the district or county within which they shall have been taken. But such inquiry is not to be instituted until it has first been made to appear to such coroner that there is reason to believe that such fire was the result of culpable or negligent conduct or design, or occurred under such circumstances as in the interests of justice and for the due protection of property to require an investigation. § 3. Such coroners may in their discretion or on the written requisition of any insurance agent, or of any three householders in the vicinity of such fire, to impannel a jury from among the householders resident in the vicinity of such fire, to hear the evidence that may be adduced touching such fire, and to render a verdict thereupon in accordance with the facts. § 4. The coroner is empowered to summon and compel the attendance of witnesses as at ordinary inquests before him. § 5. He may impose a fine not exceeding 20s. on any juror ncglectini^ to attend after being duly summoned and called three times- a certificate of such names and fines signed by the coroner to be transmitted to the clerk of the peace on or before the first day of the next ensuing quarter sessions, and a copy served on the defaulters : and fines so certified shall be levied as fines imposed at quarter sessions. § 7. Coroner's fee for holding such inquiry to be £2 10s. per day not over two days, to be paid by the treasurer of the city, town or viUafc where the inquiry shall be holden. FIREMEN. By 4 & 5 v., c. 43, § 1, the *7 G. IV., c. 8, is repealed. § 2 enacts, that whenever any company or companies shall have been regularly enrolled in any city, town, or place in which the formation of companies of firemen is by law authorised and regulated, it shall be lawful for the corporate authorities or board of police in such city or town, or if no such authorities, for the justices of the peace of the district in general quarter sessions assembled, or the majority of them, being satisfied of the efficiency of such persons and accepting their enrolment, to direct the clerk of the peace for the district to grant to each member of such company a certificate that he is enrolled in the same, which certificate jfivmovUn. 331 shall exempt the party during his enrolment and continu- ance in actual duty as such fireman, from militia duty in time of peace ; for serving as a juryman or a constable, and from all parish and town offices. § 3 authorises corporate authorities or board of police in any city or town, or if no such authorities, then the justices of the peace for the dis- trict, or the majority of them at any general or adjourned session, upon complaint to them made of neglect of duty by any individual of such fire company, to examine into the same ; and for any such cause, or in case any individual of such company shall be convicted of a breach of any of the rules legally made for the regulation of the same, to strike oif the name of such individual from the list of the company, anJ thenceforward the certificate granted to such individual shall have no effect in exempting him from any duty or ser- vice mentioned : provided always, that it shall be in the liscretion of the corporate authorities or boards of police, or of the justices of the peace for the district, as aforesaid, respectively to consent to the formation as aforesaid of any fire company in any such city, town, or place as aforesaid, or to defer the same, as may be deemed expedient : also in their discretion to discontinue or renew any such company. By 12 v., c. 36, members of enrolled companies of fire- men who have regularly and faithfully served seven conse- cutive years, shall be entitled to a certificate thereof from the clerk of the peace, Avhich shall exempt them from serv- ing in the militia in time of peace, and from all parish and town offices. FIREWORKS. By statute 9 & 10 W. III., c. 7, § 1, making or selling, or throwing fireworks from any house into any public street or road, shall be adjudged a ccmnion nuisance; and by § 2, any person selling fireworks, or implements for making the same, shall, upon conviction before one justice, on oath of two wit- nesses, forfeit £5, half to the poor, and half to the prosecu- tor, to be levied by distress ; and any person permitting same to be cast or thrown from his house into any public street or road, shall forfeit 20s. § 3. And any person who shall cast, or fire, or aid in casting or firing any, shall forfeit 20s. ; and if not immediately paid, shall be committed to the house of correction, to be kept to hard labour, not exceeding one month. By the municipal act 12 V., ch. 81, the municipalities are authorised to make by-laws for preventing or regulating the firing or sotting off of fire-balls, squibs, crackers, or fireworks. h'i 332 r-i I ':' VV>: hi''!;'.'-' ' .".■( a rlf'n- :-;: i;. !'-: FISH. * By statute 3 W. IV., c. 29, entitled, " An Act to pro- tect the white fish fisheries, in the straits or rivers Niagara, Detroit and Saint Clair, in this province," a penalty of £125 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 £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 imprison- ment, not exceeding three months. § 4. Fishing in front of lands of another individual (except in the channel) sub- ject to a penalty of c€50. § 6. The above penalties to be recovered by action of debt, with costs of suit, before any court of competent jurisdiction ; one moiety to the informer and :;c other to the province. By statute * 3 V., c. 24, § 1, the Governor may appoint one or more inspectors of fish. § 2. Inspectors before en- tering upon the duties of their olfice to take the followinn' oath or affimation : " I do hiolemuly swear, or affirm Qis the case may ho) that I will fiiithfuiiy, truly and imjjartially, according to the best of my judtrinent, skill and understandins:, excnti^ do and perfomi the (iuiy and oflice of an inspector of fish, according to the true intL'iit and meaning of the act, intituled, 'An act to regulate the in>;i;uction of fish, and to prevt.'nt non-residents in this province from lishiiig in tlie waters of the same,'" i? ^. Inspector to make annual returns tc the clerk of the peace, in the month of January, of the quantity of each (juality inspected. § 4. It shall be the duty of the inspector, on application being made for that purpose, to proceed to inspect all fish, by opening one of the heads of each barrel or half barrel, and if the same is found to contain sound and merchantable fish, with a sufiicieut quantity of salt to pre- serve the same, he shall then brand the same, as hereinafter provided, on the head of such barrel or half barrel ; and if the fish are found unsound or not merchantable, the same shall ije destroyed by the inspector ; and if the barrel or half barrel is not full, or not salted with a sufficient quantity of salt, in that case the said inspector shall fill the same with sound or merchantable fish, or add such quantity of salt as he may deem requisite : each barrel to contain two hunded pounds, and each half barrel one hundred pounds. § o. Each barrel or half barrel shall be filled with fish of one and the same kind, and the inspectors shall brand in plain legible letters on the head of each barrel or half barrel of fish in- ffm. 333 spected by them respectively No. 1 or No. 2, representing the quality of the fish packed or re-packed, and they shall also brand on the head of each barrel or half barrel the species of the fish, the initials of the christian name and the whole of the surname of the inspector, the name of the dis- trict in which such fish was inspected, and the words " Upper Canada." § 6. If any person shall intermix, take out, or shift any fish of any barrel or half barrel inspected and branded as by this set required, or put into any barrel or half barrel inspected and branded, any other fish for sale or exportation, or alter the face of or change the brand or mark of any inspector contrary to this act, the offender shall forfeit and pay £5 on conviction before any two justices, upon the oath of one or more witnesses : such penalty, if not paid in three days after conviction, to be levied of the goods and chattels of the offender as hereinafter provided. § T. All pickled fish duly inspected in any district in this pro- vince, shall not be liable to re-inspection in any other dis- trict, and may be shipped and exported to any foreign port. ^\ 8. All barrels or half barrels used for packing and re- packing pickled fish, shall be manufactured in this province, and shall bo made of sound well seasoned white, red or black oak, white ash, or white pine timber. The barrels and half liarrels shall bo well hooped Avith at least ton good hoops I'lich, and shall be made in a workmanlike manner. The fees for inspecting and 1)randing shall be, for each barrel lid. currency, and for each half barrel 4d. currency ; and for overhauling, re-packing, inspecting and branding, for each Larrel Is., and for each half barrel 7|d., exclusive of cooper- aire ; and for every bushel of salt or part thereof so consumed as aforesaid, the value of such salt according to the market price thereof at the time and place of such inspection ; the tees and charges to be paid by the person employing the inspector. § 0. If any inspector shall be guilty of any fraud or neglect in inspecting fish, or of off'ering any fee or reward t) owners of fish or their agents, or to any other person, in Older to obtain the profits of inspecting or re-packing the siine, or shall l)rand any barrel or half barrel containing foh contrai'y to this act, or which has not been actually inspected, or shall permit any other person to use his brand ill violation or evasion of the provisions of this act, he shall, on conviction before any two justices of the district, upon the oath of one or more witnesses, forfeit and pay .£10, and in default of payment within six days after conviction, such justices, or any one of them, may issue an execution against such inspector's goods and chattels, as by any law of this [■ ,'.1 i>: 334 ffm^ ;;»;!■: i'lf^ i, I -.-Hi ■■ ■!::• ■ I. ov,- - [It V, ,•'.., ■! >3' ! 11 ii'^^ij ffJ-;f|--:v«' \ ^ y. province is authorised in judgments awarded in the Court of Requests. § 10. No person not residing in this province shall fish within the waters of Upper Canada, or be directly or indirectly engaged in the same, either as owner or agent or part owner of a seine, or as a partner, or have any seine net or line upon any part of the beach of the waters of this province : and every person so offending shall be liable to be imprisoned for a period not less than thirty days nor exceed- ing ninety days, upon the oath ot one or more credible wit- nesses. § 11. If it shall appear to the inspector that a part of the fish in any barrel or half barrel inspected by him is sound and part unsound, it shall be lawful for said inspector to separate the sound from the unsound, and re-pack the sound fish, and add such salt or pickle as he may judtre necessary, and brand the same as aforesaid, and such fish as the inspector shall judge not capable of preservation he shall condemn as bad. § 12. This act not to apply to any fisli packed out of the province and imported. By 20 v., c. 21, § 1, the 7 V., c. 13, § 8, c. 47, and the 18th sub-section of the GOth § of the Municipal Corporations Act 12 v., c. 81 are repealed. §4, authorises the (jovernor to appoint two superintendents of fisheries, one for Upper Canada and one for Lower Canada. § 18. The main chan- nel of rivers not to be obstructed by nets or fishing apparatus for the purpose of taking salmon or fish, under a penalty not exceeding £5, and tlic forfeiture of the fishing apparatus, and in no case shall the said channel or course left open be less than one-third of the whole breadth of the river. >^ Vl Penalties and forfeitures under this act, or the regulations to be made under it, may be recovered on complaint before the superintendent of fisheries, or any stipendiary or other inajris- trate in a summary manner, with costs, the same as provided by law, in either section of the province, in other cases where summary jurisdiction is given to magistrates. §20. Am offender wlio shall not forthwith pay the fine and costs, shall be committed to gaol for any time not exceeding one month. ^ 28. Penalties to be sued for within twelve months from the commission of the offence. § 2G. From the 1st of June to the 20ih of October in each year, the owner of any dam or slide on any river which salmon may ascend, shall for the purpose of affording a passage to the fish, attach to each dam or slide, a fish-way of such form and dimensions, as shall bo determined by the Governor in council, under a penalty of one pound for each day on which he shall fail so to do. § 27. It shall not be lawful to catch salmon in any way what- ever, except with a rod and line between the 1st of September iFlour unrt jw^eal« 335 and the 10th of March in Upper Canada. »§, 29. It shall not be lawful to kill salmon, maskilong^, speckled trout, nor bass at any time by the aid of spears, torchlight, or other artificial light in Upper Canada. § 32. Nor for any person to buy or sell such fish ; and any fish so taken may be declared forfeited to the complainant by any magistrate. § 83. In every case of contravention of this act, or of the regulations to be made under it, for which no other penalty is provided, the offender shall incur a penalty of not less than £2, nor more than £5. ^34. It shall not be lawful to construct any fish-pound in any river or brook. § 34. The power heretofore vested in the municipalities by the 18th subsection of the 60th section of the 12 v., c. 61, as extended by the 67th and 106th sec- tions of said act are hereby transferred to the Governor in council. '§> 37. For the purpose of encouraging and affording information with respect to the production of salmon and other fish, an apparatus for the artificial propagation of fish shall be kept in the department of the Commissioner of Crown Lands. FISH DAMS. By 4 & T) v., c. 26, § 15, maliciously destroying any dam to any fish-pond or private fishery, is made a misdemeanor. FLOUR AND MEAL. By 10 & 20 v., c. 87, former acts are repealed. § 3. The boards of trade in Quebec, Montreal, Toronto, King- ston and Hamilton, and the municipal authorities in other nhices where inspectors may bo required, are authorised to appoint boards of examiners of applicants for the ofiico of inspector. § 4. The mayor lOf the cities of Quebec, Mon- treal Kingston and Harailtol^ and the mayor or chief muni- cipal officer of other places may appoint an inspector for their localities, to bo first examined and approved by the hoard of examiners ; and where there is a board of trade, such appointmment must be on the requisition of such board. ^\ ii Inspectors required to take a certain oath of ofiice be- fore acting. ^11. The board of trade of any city or place may hear complaints against inspectors or assistants', and notify the mayor, &c., to remove such inspector. § 12. Di- recta in what manner tiour shall be inspected, and on whose requisition and where to be made. § 13. And tiour taken from any barrel by the inspector shall be re-delivered to the owner, under the penalty of £5. § 14. Each inspector to be provided with branding irons, anil to brand each barrel im- mediately after inspection. " Sour" and "unmerchantable V y i In i;: ■ ■ y w i^lM il. 11 1 i 1 336 ^-i IJ!^' i 1 i ^1 * ;l 'f, i' tn.' ! iijii iFlowr «ii^ ineaU flour" to be marked accordingly. A bill of inspection to be furnished by the inspector, and if false, the inspector to bo liable to a penalty of £20 and dismissed from office. § 15 The weight of every cask to be ascertained, if suspected not to be of full weight ; the deficiency to be made good by the proprietor, and every inspector making default herein shall be liable to the penalty of X20 and other damages. § l(j Brand marks to be neat and legible and according to the act under the penalty of £5. § 17. Disputes between the in^ spector and owner with respect to the quality or condition of flour, to bo decided by three persons summoned and sworn before a justice of the peace. §18. Any inspector refusinff or neglecting to act when required (unless at the time m. ployed in his duty) to incur a penalty of £5 on conviction before any one justice, over and above damages. !j iji Adulterated flour may be seized by the inspector and do. tained, and the offender liable to a penalty of £2i). I'rose- cution for to be commenced within one month. § 20. Mann- facturcrs or packers undcrmarking the tare of any barrel or half barrel, to incur a penalty of 20s. § 21. And anv person offering for sale any barrel, &c., deficient in Aveiirht, shall incur a penalty of 208. for each cask. § 22. Inspec- tors and assistants not to deal in flour directly or indirectly, or act as agent for any seller or purchaser, under tlio ponalty of £50 and removal from office. § 23. Qualities of tluur. how to be designated. § 25. Every half barrel of ilour m contain 98 pounds net : every barrel 19t> pounds net. |{ve flour and Indian meal same weight ; every half barrel of oat- meal 112 pounds net: every barrel of oatmeal 224 pounds net. The name of the packer or manufacturer to be bviindod. painted or marked at full Ici^h, the name of the mill or place of packing, quality and ^Rght and tare, under a pon- alty of two Hhtllings for each barrel or half barrel. !; i'(i. Barrels to be of a certain size and construction, under the penalty of tivo shillings for each barrel. § 27. Iiispeetors to make weekly returns to the board of trade of flour or nioal inspected. § 28. Any manufacturer or packer oblitoratin;: the inspector's marks, or counterfeiting any such marks, or using old barrels without destroying the old marks, or usin^ inspector's brands without authority, shall incur a ponaltv of .£50 ; and any inspector or assistant inspecting or mark- ing flour out of his jurisdiction, or hiring out his murks, or conniving at any fraudulent evasion of the act, shall incur a penalty of £50. § 29. All fines and penalties undor tliis act not exceeding £10, shall be recoverable by any inspec- tor, or other person suing, in a summary way before any iFottfUle lEntvs ^nXf l^etaCner. 337 two of her Majesty's justices of the peace for the locality, and levied b;^ distress ; and if exceeding £10, then by infor- mation or civil action in a recorder's court, or any other court of competent jurisdiction ; one moiety of such penal- tics to be paid to the treasurer of the municipality, and the other to the inspector or informer. § 30. Prosecutions to \)0 commenced within six months. § 31. Inspection of flour not to be compulsory. § 32. The word "meal" to indicate ''Indian meal and oatmeal." FORCIBLE ENTRY AND DETAINER. What is a Forcible Entry. A forcible ( ntry is committed by violently taking posses- sion of lands and tenements, with menaces, force and arms, and without 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 bo indicted. — Bait. {Ed. 1727) c. 129. A single person may commit a forcible entry as well as a num- ber of persons. — 1 Haw., c. (34. § 8, 12, 29, A forcible entry is made 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, whether any person be in it at the time or not ; and though a man enter peaceably, yet if he turn the party out of pos- session by threats, or violence, this also amounts to a forcible g^try. — I Haw., c. 04. § 25. But merely drawing a latch, 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. WJiat is a Wfrcible Betainer. A forcible detainer, is where a person who enters peace- ably, though unlawfully, detains possession by force ; and the same circumstances of violence or terror which makes an entry forcible, will also constitute a forcible detainer. Therefore, whoever, after an unlawful 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 against a justice of the peace, coming to view the force, and obstina- tely refuses to let him come in ; so a lessee, who, after the end of his term, keeps arms in his house to oppose the entry of the lessor, is guilty 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. — 2 Haw., 43 -ii.,.. ;. I' t," N ^- M .\ \ '1 1 ::-n I • % ^llny • i' - » ' i" • h' '■ u ■' 338 iFortifile IBntrj? atiDr ISrtafnen c. 64, § 30; 4 Cow. Di^. 201. But the mere refusal to go out of a house, and continuing therein in despite of another, does not amount to a forcible detainer. — 1 If aw., c. 64, § 30. Therefore, if a lessee at will (after the determination of his tenancy,) merely denies possession to the lessor, or even shuts the door against the lessor when he would enter, this is a not a forcible detainer. — Oro. Car. 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. 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 Ha7v. 140. But this in- dulgence of the common law having been found, by experi- ence, to be very prejudicial to the public peace, it )vas thought necessary, by many severe laws, to restrain all persons from the use of such violent methods of doing them- selves justice. — lb. 141. Accordingly, by 4 R. II., statute 1, c. 8, none shall make entry into lands but where entry is given by law, and in sucli case not with strong hand nor with multitude of people, but only in lawful and easy man- ner. And if any do the contrary, and thereof be convicted, he shall be punished by imprisonment and ransomed at the king's will. By la II. H., c. 2, at all times that forcible entries be made, and complaint thereof oometh to justices of the jieace, m or any of them, the same justices or justice shall take suffi- cient power of the county, andJB to the place wliere such force is made ; and if they finfWiny that hold such jilace 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 thev of the county, as well the sheriff' as others, shall attend upon the justices, to assist them to arrest such oftVtidors, upcn pain of imprisonment, and to make fine to tl' king. By 8 H. VI., c. 0, where aiv lake forcihlc entry into lands, tenements, or oth< .sessions, or !iom liol'd forcibly, after complaint made he justices oi the peace, or one of them, by the party griocd, the justices or justice, Avithin a convenablc time, shall cause \ o statute duly to be executed at the costs of the party grieved. — § 2. Though such persons making such entries be present, or voided before the coming of the justices ; nevertheless, the justic uient count lands force, trary so ent out in Wh( their p to cans sons di such e lands ( return rcturna time, 1( sheriff c he shall and ram An ii trates ur expelled will be c inquisiti( (Ict'endar lands or complaii et al., an Digest, ijy 2] forcible persons possessio ment fou party int other tra tiio part} By 21 like rest: If the off the justic and the by the < detainer be restorJ vim jf0vtmt iSntri^ antr IBtmntt. 330 justices, in some town next the tenement, or in other conve- nient 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 con- trary 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 enquiries, they shall cause their precepts to bo directed to the sheriff", commanding him to cause to come before them sufficient and indifferent per- sons dwelling next about the lands so entered, to enquire of such entries, whereof every man empannelled shall have lands of the yearly value of 40s. And the sheriff" 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 ransom. — § 4. An inquisition for a forcible entry taken before magis- trates under 8 II. VI., c. 9, must shew what estate the party expelled had in the premises, and if it do not, the inquisition will be quashed, and the court will award restitution. The inquisition will also be bad if it appear to the court that the defendant hud no notice, or that any of the jury had not lands or tenements of the value of 40s., or that the party complaining was sworn as a witness. — Hex. v. McUcavrey et al., and Mitchell v. Thompson, Mivhs. 1 Vic. ; Cameron 8 Digest, p. 38. By 21 Eliz., c. 11, no^ijfititntion upon any indictment of forcible entry, or holdin Jfcth force, shall be made, if the persons indicted had the occupation or had been in quiet possession, three years next before the day of such indict- ment found, and their estate therein not ended, which the party indicted may allege for stay of restitution ; and if the other traverse the same, and the allegation be found against the party indicted, he shall pay costs. — § 3. By 21 Jac. I., c. 15, a justice of the peace may also give like restitution of possession to tenants for term of years. If the offender, being in the house, make no resistance, then the justice can neither arrest nor remove thera on his view, and the party cannot be arrested unless the force be found by the enquiry of a jury, and if such forcible entry and detainer be found, then the justice shall cause the lands to bo restored. — Dalt. I., 44. Although one justice alone may t.i F*1! ■ '••' 15 n^ ■•fl «: #!^ii 'II' .1^^ ;;■!' i ■ urn immk Pi ., ajf.:: \> ■I . ■ 1 :1 ■ v <).^'.i; !■« i'^ 1 -.I- , 340 iFotcidu isntri? nntf Betafn^r. proceed in such cases, yet it may be advisable for him, if the time for vie^ving the force will suffer it, to take to his assis- tance one or two more justices. — BurnSy J., 179. , 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 habeas corpus. — M. v. Elwelly Str., 794; Ld. R., 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. — Jl, tf. Layton, 2 Salk., 450. Restitution Must be awarded by the same justices before whom the inquest was found. If a restitution shall 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. 94, § 63, 64, 65. The sheriff, in executing the writ of restitution, may raise the power of the county to assist; but the justices may, if they think proper, make restitution in person. A justice, or the sheriff, may 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 restitution without a new requisition, if applied for within a reasonable time. — Haw., c. 64, § 4!) 52; 4 Com. Dig., 204. How Punishable by Indictment. A forcible entry and detainer is also, at common law, pun- ishable by indictment; and if three or more be concerned, it is also a riot, and may be proce^gd against accordingly.— Dalt., c. 44. jp Record of > Forcible Detainer upon vietv, before three Justices. {Burn.) [Or it may be before one Justice only.] County of ) Be it remcmberod, that on the day of to wii. I , in the yea"- of the reiirn of our .sovereign lady Victoria, at , in the county aforosuid, complained to us and Esquires, tlirre of the justices of our said lady the Queon, nssignt' d to keep the peace in the said county, and also to hear and determine divers felonies, trespas- ses, and other misdemeanors, in the said county committed, that and , late of , in the said county, yeomen, into the messuage of her the said , situate within the township of , in the county aforesaid, did enter, and lier the said , of the messuage aforesaid, whereof the said , at the time of ffovtmt iBntvp uM Bttnlntv. 341 the entry aforesaid, was seised, as of the freehold of her the , for the term of her life, unlawfully ejected, expelled and removed, and the said messuage from her the said , unlaw- fully, with strong hand and armed power, do yet hold and from her detain, against the form of the statute in such case made and provided ; whereupon the said then, to wit, on the said day of , in the year aforesaid, at the township of , in the county aforesaid, prayeth of us as aforesaid, being justices, thnt a due remedy be provided to her in this behalf, according to the form of the statute aforesaid; which complaint and prayer by us the aforesaid justices being heard, we the aforesaid , justices, aforesaid, to the messuage aforesaid, personally have come, and do then and there find and see the aforesaid , the aforesaid messuage, with force and arms unlawfully, with strong hand and armed power detaining, against the form of the statute in such case made and provided, according as she the , hath so as aforesaid unto us complained ; therefore it is considered by us, the aforesaid justices, that th' aforesaid of the detaining aforesaid, with strong hand, by ar 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 fine of of (jood and lawful money of this province, to be paid by them and every of them, severally, to our said sovereign lady the Uueen, for the said offences, and do cause them and every of them then and there to be arrested, and the said and being convicted, and every of them being convicted, upon our own proper view of detaining aforesaid with strong hand, as is aforesaid by us, the aforesaid justices, are committed, and every of them is committed to the common gaol of our said lady the Q,ueen, at , aforesaid, in the county aforesaid, being the next gaol to the messuage aforesaid, there to abide respectively until they shall have paid l^ir several fines respectively, to our said lady the Q,ueen,for Wreir respective offences 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 county aforesaid, on the day of , in the year of the reign of our said sovereign lady the Queen. Mittimus for a Forcible Detainer^ upon view, hy one Justice. {Burn.) To all or any of the constables or other peace ofHcors in the said county of , and to the keeper of the common gaol at in the said county of Provinck of Canada. County of "> Whereas upon complaint this day made unto to wit, j me J. C, Esq., one of her Majesty's justices tS>i ■ It ;5 % W:"^ li^li^i^ \ "IV'i S^!!'li=-1 'U; I' :!■; V 842 iFortftile iStitrs^ «titr IBtmmv. 5t' >\ii m M If .1^ ii 1 1? ';"'I3 of the peace for the county of , by A.B. of , in the said county, 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 same place, labourer, and G. H. late of , car- penter, forcibly with strong hand and armed power holding the said house, against the peac of our said lady the Queen, and against the statute in such case made and provided ; therefore I send you, by the bringers hereof, the bodies of C. D., E. F. and G. H. convicted of the said forcibly holding, by mine own view, testimony and record; commanding you, in her 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 [ ], of good and lawful money of this province, to our said sovereign lady the dueen, which I have set and imposed upon every of them separately, for a fine and ransom for their said trespasses, re- spectively. Herein fail you not, on the pain that will ensue thereon. Given at aforesaid, in the county aforesaid, under my hand and seal, the day of , in the year of the reign of our sovereign lady the Q,ueen, and in the year of our Lord 18 . J. C. Justice's Precept to Summon a Jury. (Burn.) Province of Canada. ^ County of to wit. said county, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said county conimiitid — to the sheriff of the said county, greeting: On behalf of our said lady the Queen, I command you thai you cause to come before me, at , in tlie said county, on the day of , next ensuing, twenty-four sufficient and in- different men of the neighboujhood of aforesaid, in the county aforesaid, every one of ww)m shall have lands and tene- ments of 40s. yearly at tlie least, above reprises, to eu(|uire upon theii' oath, for our said lady tiie Queen, of a certain entry made with a strong hand, as it is said, into one messuage, nf one A. B. at , aforesaid, in the county aforesaid, against the form of the statute in that case made and provided; and yu arc to return upon every of the jurors by you in this behalf to Iw empanelled 'liOs. of issues at the aforesaid day, and have von then and there this precept, and this you will in no wise omit, upon the peril that thereon shall ensue. Witness the said J.C., at , in the said county, the day of , in the vcar of the reign of our soverign lady Victoria. Forevian's Oath. You shall true enquiry and presentment make of all such things as shall come before you concerning a forcible entry [or ) J.C, Esq., one of the justices of our ladv im j Queen, assigned to keep the peace in the the detainer house of tion, nor accordin evidence Theoa you and e Bo help y The Province younty of to wit county of of our sove ful men of justices of tor the sai felonies, tre who say up laivfuily an (;/ not free, ilie appurte and his sai late of malefactors strong hand ilie appurtei iliereofdisse and him thei from the sail the day H'ith strong keep out, to [ tlieUueen, and provide( jurors aforesi find the inq J Warral l^RovmcE oA County of to wit. the peace in I fli'vers feioni( county comi greeting : iill such jury [or iFortii^le lEntvp «n9 'Bttuintv. 343 detainer] said to have been lately committed in the dwelling- house of A. B. at ; you shall spare no one for favour or aflfec- tion, 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. To the other Jurors. The 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 you God. The Inquisition or Finding of a Jury. (Burn.) Province of Canada. ;0unty of ) An inquisition for our sovereign lady the to wit. 3 Glueen, indented and taken at , in the county of , the day of , in the year of the reign of our sovereign lady Victoria, by the oath of good and law- ful men of the said county, before J. C, Esquire, one of the justices of our said lady the Glueen, assigned to keep the peace for the said county, and also to hear and determine diver? felonies, trespasses and other misdeeds, in the county committed, who say upon their oath, aforesaid, that A.B. of , long since lawfully and peaceably was seised in his demesne as of fee ilf not freehold saj/, ^^ possessed ^^) of and in one messuage with ilie appurtenances in , aforesaid, in the county aforesaid, and his said possession (or seisin) so continued, until C. D., late of , &c., E. N., ot, &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 aforesaid, did enter, and him the said A. B. thereof disseised (or disjwssissed), p.ai with strong hand expelled, and him the said A.B. so disseised (or dispossessed) and expelled from the said messuage, wiih|jhe appurtenances aforesaid, from ihe day of until the day of the taking th\s inquisition, with strong hand and armed power d:J keep out, and do yet keep out, to the gre. t disturbance of the peace of our said lady the Uueen, and agui.'>t the form of the statutejn that case made and provided. We, whose names are hereimto set, being the jurors aforesaid, do upon the evidence now produced before us, liud the inquisition aforesaid true. A. B., &c. Warrant to the Sheriff' for Restitution. {Burn.) I'rovinck of Canada. County of ) J. C, Esquire, one of the jiisticcs of our to wit. 5 sovereign lady the Q,ueen assigned to keep the peace in the county of and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said county committed ; to the sheriff of the said county of , ijreeting : ' %^ - ■ ■ t« I • fll '•■ ^ 1.1 1 ;r|, ., u i < 1 1 mm^k fit ■ .^r f ^> '■ ■1; ' ■ 344 iForffgn ^00tf fit^fon. Whereas, by an inquisitioa taken before me, the justice aforesaid, at , in the county aforesaid, on this present day of , in the year of the reign of , upon the oaths of , and by virtue of the statutes made and provided in cases of forcible entry and detainer, it is found that C. D., &c., into a certain messuage, &c. (as in the inquisition') as by the inquj. siiion aforesaid more fully appeareth of record ; therefore, on the behalf of our said sovereign lady the Clueen, I charge and command you, that, taking with you the power of the county (if it be necd/ul) you go to the said messuage, and other the premises, and the same with the appurtenances 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 my hand and seal at in the said county, the day of , in the year of the reign Indictment for a Forcible Entry and Detainer at Common Law. Province of Canada. County of ) The jurors for our lady the Clueen, upon their to wit. \ oath present, that J. S., late of the township of , in the county of , 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 lady Victoria, with force and arms, to wit, with pistols, sticks, staves and other ofHinsive weapons, in the county aforesaid, into a certain barn and a certain orchard, there situate and being, and then and there in the possession of one J. N., unlawfully, vio- lently, forcibly, injuriously and with strong hand, did enter, and the said J. S., K. T. and L. W., together with the said other evil disposed persons, to the jurors aforesaid unknown as aforesaid, then and there, with force and arms, to wit, with pistols, swords, sticks, staves and other offensive weapons, un- lawfully, violently, forcibly, injuriously and with a strong hand, the said J. N., from the possession of the said barn and orchard, did expel, remove and put out, and the said J.N. so as aforesaid expelled, removed and put out, from the possession of the said barn and orchard, then and there, with force and arms, to wii, with pistols, swords, slicks, staves and other ofTensive weapons, unlawfully, violently, forcibly, injuriously, and with a strong hand did keep out, and other wrongs to the said J.N. then and there did, to the great damage of the said J.N. and against the peace of our lady the Clueen, her crown and dignity. FOREIGN AGGRESSION. * By 3 v., c. 12, § 1, reciting that it was necessary to iFore»taUfn0« 345 amend the provisions of the * 1 V., c. 3, said act is therefore repealed. § 2. If any person, being a citizen or subject of any foreign state or country at peace with the United King- dom of Great Britain and Ireland, shall, after the passing of this act, be or continue in arms against her Majesty, her heirs or successors within this province, or shall commit any act of hostility therojn, or shall enter this province with design or iL'^nt to levy war against her said Majesty, her heirs or suc- cessors, or to commit any felony within the same, for which any person convicted of such felony would by the laws of this province be liable to suffer death, then it shall be lawful for the Governor to order the assembling of a militia general court martial for the trial of such person, agreeably to the militia laws of this province, and upon being found guilty by such court martial of offending against this act, such person shall be sentenced by such court martial to suffer death, or such other punishment as shall be awarded by the court. § 3. If any subject of her Majesty, her heirs or successors, shall within this province levy war against her Majesty, her heirs or successors, in company with any of the subjects or citizens of any foreign state or country then at peace with said United Kingdom, or shall enter this province in company with any such subjects or citizens of a foreign state or coun- try at peace with said United Kingdom, with intent to levy war on her Majesty, or to commit any such felony as afore- said within the same, with the design or intent to aid and assist such last mentioned person or persons to levy war or to commit any such act of felony as aforesaid, then such sub- ject of her Majesty shall be liable to be tried and punished by a militia court martial, in like manner as any citizen or subject of a foreign state or country at peace with her Majesty. § 4. Any citizen or subject of any foreign state or country offending against this act, shall be deemed guilty of felony, and may, notwithstanding the above provisions, be prosecuted and tried before any court of oyer and terminer and general gaol delivery, in and for any district of this province, in the same manner as if the offence had been com- mitted in such district, and upon conviction shall suffer death, aa in cases of felony. FOREIGN SERVICE. Any engagement with a foreign state is a contempt against the prerogative, and a high misdemeanor at common law. — iBl.Com., 122. FORESTALLING. At the common law, every practice or device to enhance 44 if lilt 1 - ^ Itt f'! '' wHK- i: ■1 »!IW r'T 346 iForgetfi* Mi.!; 'Sr 5 iJ 1 if* llriali';-'; ' , : \ i V ;f mmMBi . ii.,; it fc 3;5v i m 1 If the price of victuals, or other necessaries of life, is held to be a misdemeanor — 3 Inst., 196; and forestalling, in its legal signification, anciently comprehended all offences of this description, including those of ingro8%ing and regrating. Ingrossing is the purchase of the whole of any commodity for the sake of selling it again at a high price. Regrating sig. nifies, properly, the scraping or dressing of cloth, or other goods, in order to sell the same again. The offences of fore- stalling, ingrossing, and regrating have heen also especially provided against by various statutes, from the 3 & 4 Ed. VI. c. 21, downwards to the 12 G. III., c. 71 ; by which latter statute all the preceding statutes were repealed, leaving the offence only to be dealt with as it stood at common law, under which it still continues an indictable offence, punishable by fine and imprisonment. — Cr. C, 0., 232. FORGERY. Forgery is the fraudulent male mg or alteration of a writing, to the prejudice of another man's right. It is a misdemeanor at common law, punishable by fine, imprisonment, and pillory — 4 £1. Com., 247; but is made felony by a variety of sta- tutes ; and forgery is complete, although no person be actually prejudiced by it. — Ward's case; Ld. Raym., 1461. The fol- lowing instances come under the denomination of forgery:— making a fraudulent insertion, alteration, or erasure in any material part of a true instrument: converting a bond for £500 into one for ^5000, by adding an to the number.— 1 Haw., c. 70, § 2. Altering a banker's note or bill of exchange from .£10 to £B0. — 11. v. Teague, 2 Uast. P. C. 979. Altering tho date of a bill, whereby payment is accel- erated. — 2 Uast. P. 0. 852. 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 instrument in his own name, if he represent him- self to be some other person of tho same name. — Mead v Voung, 4 T. It. 28. As to Forgery by Statute Law. By 5 Eliz., c. 14, § 2, forging any false deed, charter, or writing sealed, court roll, or the will of any person, or pub- lishing any such as true, shall subject the party to double costs and damages ; be set in the pillory, &c. ; and by stat. 2 G. II., c. 25, revived and made perpetual by 9 G, II., c. 18--any person forging any deed, will, bond, writing obh- gatory, bill of exchange, . promissory note, indorsement or assignment thereof, or uttering same as true, shall be guilty :ffovatvp. 347 of felony. By 24 G. III., st. 2, c. 37, forging the super- sciiption of a letter, to avoid the payment of postage, is made felony. *By 35 G. III., c. 5, § 14, any person forging any memo- rial, «c., under the registry act, shall be subject to the pains and penalties of the 5 Eliz. By 10 & 11 v., c. 9, intituled "An Act to consolidate and amend the laws, and to repeal certain acts relating to the crime of Forgery." The Great Seal. — § 1. Any person forging or counter- feiting, or altering, knowing the same to be forged or coun- terfeited, the Great Seal of this province, or of the late province of Upper Canada, or of Lower Canada, shall be guilty of felony, and liable to imprisonment in the peniten- tiary for any term not exceeding seven years. § 2. Any person forging or counterfeiting, or uttering, &c., the seal at arms of any governor, lieutenant-governor, or person admin- istering the government, to any commission, grant, appoint- ment, license, warrant, order, or other instrument of a public nature appertaining to the affairs of the province ; or any public register book or copy, or of any entry therein, shall be guilty of felony and liable to imprisonment in the peni- tentiary for not less than five, nor more than fourteen years. Securities for Money, Wills, ^^c. — § 3. Any person forg- iniT or altering, or offering, disposing or putting off, knowing, &c., any provincial debenture, or any stamp or endorsement on or assignment thereof, or any government scrip for land, or any bank note, will, testament, codicil or testamentary writing, or any license of marriage, or any bill of exchange, or any promissory note for the payment of money, or any indorsement on, or any assignment of any bill of exchange, or promissory note for payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant or order for payment of money, with intent to defraud any per- son, shall be guilty of felony, and liable to imprisonment in the penitentiary for not less than four, nor more than ten years. § 4. \V hen by any other law the forgery of any instrument or writing is made punishable with death, the offender may be indicted under this act. Letters Patent. — § 5. Any person forging or altering, or uttering, &c., any copy of letters patent, or enrolment there- of, or any certificate thereof, purporting to bo given under any statute, shall be guilty of felony, and liable to imprison- ment in the penitentiary for not less than three, nor more than seven years ; or imprisonment in any common gaol for not more than two years. \ s 348 iForiietj^« 1;. B'l :■ i^i^Mmu^ mm i> in. ^x :.-i f;*-4i I Bank Stock. — § 6. Any person forging or altering, or uttering, &c., any transfer of any share or interest in the capital stock of any body corporate, company or society ; or any power of attorney or other authority to transfer such stock, or to receive any dividend or profit payable thereon • or who shall demand or endeavour to effect such transfer ; or to receive any dividend or profit in respect thereof, by virtue of any such forged or altered power of attorney or authority knowing the same to be forged or altered with intent to de- fraud such person : or if any person shall falsely and deceit- fully personate any owner of any such share, interest, divi- dend or profit, and thereby transfer any share or interest belonging to such owner, or thereby receive any money due to such owner, he shall be guilty of felony, and liable to imprisonment in the penitentiary for not less than four, nor more than ten years. Personating Oioners. — § 7. Any person falsely and de- ceitfully personating any owner of any share or intcresi in the capital stock of any body corporate, company or societv or any owner of any dividend or profit in respect thereof; or any claimant for land from the crown ; or for any scrip or allowance in lieu thereof; and thereby endeavour to receive any money due to the owner, or to obtain such land or scrip or allowance, shall be guilty of felony, and liable to impri- sonment in the penitentiary for not less than three, nor more than seven years : or imprisonment in any common gaol not exceeding two years. • Forging Names of Witnesses. — § 8. Any person forgin" the name of any witness to any power of attorney or other autho- rity, for the transfer of any share or interest in any capital stock aforesaid, or to receive any dividend or profit, or to assign or transfer any right to obtain a grant from the Crown of lands, or to obtain any scrip or other allowance in lieu thereof, or who shall utter any such knowingly, shall be guilty of felony, and liable to imprisonment in the penitentiary ibr not less than three, nor more than seven years, or imprisoment in any common gaol not exceeding two years. Forging Records, Deeds, .f-t*. — § I). Any person forginir or altering, or uttering, &c., any notarial act or copy, prom verbal of any surveyor, or copy, judicial record, writ, order, return, exhibit, report, certificate or other document, or entry made or filed in any suit or proceeding, civil or crimi- nal, in any court of justice, or with any officer of such court, or any exemplification, or authenticated or certified copy ot any such documents or entry as aforesaid, deed, bond. writihg obligatory, or any assignment of right of land, cer- iFotgets* 349 tificate of registration, or affidavit of execution, or any memorial of any deed, will, or other instrument, or any acquittance or receipt for goods, or any accountable receipt for money or goods, or for any note, bill or other security for payment of money, or any warrant, order or request for delivery or transfer of goods, or delivery of any note, bill, or other security for money, or any contract, promise or agreement, with intent to defraud any person, shall be guilty of felony and liable to be kept confined at hard labour in the penitentiary for not less than four, nor more than ten years. Jiecognizances — Cognovits. — '^ 10. Any person acknovr- ledging bail in the name of another, not privy or consenting thereto, or any cognovit actionem, or judgment, or any deed registered or enrolled, shall be guilty of felony and liable to hard labour in the penitentiary for not less than four, nor more than ten years. Possession of Forged Notes, (j'C. — '^ 11. Any person, with- out lawful excuse, purchasing or receiving, or having in his custody, any forged bank note, or blank bank note, knowing the same to be forged, shall be guilty of felony, and liable to imprisonment in the penitentiary for not less than three, nor more than seven years. Engraving Bank Notes. — '^ 12. Any person engraving, or making upon any plate, wood, or stone, or other material, any bank note, bill of exchange, or pi'omissory note for money without iuthority ; or any subscription thereto with- out such authority ; or having in his custody any plate, wood, stone, or other material, or any superscription, so engraved or made ; or knowingly uttering or having in his possession any paper upon which any part of such bank note, &c., or superscription shall be made or printed, shall be guilty of felony, and liable to hard labour in the penitentiary for not less than three nor more than seven years : or imprisonment in any common gaol for not more than two years. Foreign Bills, (f-c. — § 13. Any person forging or altering, or uttering knowingly, any forged or altered bill of exchange, promissory note, undertaking or order for payment of money, in whatever language expressed ; or engraving or making upon any plate, wood, stone or other material, any such instrument, without authority ; or without such authority shall use, or without lawful excuse have in his possession, any plate, stone, wood or other material, upon which any such foreign bill, &c., shall be engraved or made ; or shall without authority, knowingly utter, or have in his possession any paper upon which auy part of such foreign bill, &c., n ii - ^ ;•• H f U .i'JB . 11 »W| :f\ i,: , i1 ^^'0 ^|W,; A'. A- P' if If' I 360 iForireri^« ii u \ i k f fi i; 1 X I WW shall bo raado or printed, shall be guilty of felony and liable to hard labour in the penitentiary for not less than three nor more than seven years, or imprisonment in any common gaol not exceeding two years. Statute of Elizabeth. — >§ 14. Any person subject to im- prisonment under this statute shall be guilty of felony, and liable to hard labour in the provincial penitentiary for not less than three, nor more than seven years ; or imprisonment in any common gaol not exceeding two years. Foreign Matter. — § 15. Where the forging or utterintr any matter is in this act expressed to be an offence, if any person shall in this province forge or utter the same, in whatever place or country, out of this country, foreign or otherwise, such matter may purport to be made, and in whatever language expressed, every such person and his aiders and abettors, shall be deemed to be an offendei' within this act, and punishable as if the matter had pur- ported to be made in this province : and if any person shall in this province forge, or utter any forged bill of exchanfc, promissory note for money, or any endorsement or assign- ment of such, or any deed, bond, writing obligatory, for payment of money, in whatever country out of this province the same may purport to be payable, and in whatever language expressed, such person, his aiders and abettors, shall be an oftender within this act, and punishable as if tho money had bocu payable in this province. G-eneral Clause. — § 16. That when by ftny law now in force, any person forging any matter whatsoever, or knowingly uttering the same, or demanding or causinjj any thing to be done by virtue of any forged matter; or falsely personating another, or demanding or receiv- ing any money by virtue of any probate or letters of administration, knowing the will to be forged, or such probate, «Scc., obtained by false oath, would be guilty of felony, and liable to any other punishment than is provided by this act : any person convicted of such a felony, his aider:? and abettors, (and no other punishment be provided under this act,) shall be liable to hard labour in the penitentiary for not less than three^ nor more than ten years : or imprison- ment in any common gaol not exceeding two years. This act not to alter any law respecting coin. Venue. — § 11. Offenders may bo tried in the district where apprehended or in custody. Accessories. — § 18. Principals in the second degree, and accessories before the fact, punishable in the same manner as principals in the first degree ; and accessories after the llistricl L'O, and lannev Iter the iFree ®frant». 351 fact liable to imprisonment in the common gaol not exceed- ing two years. Indictment. — § 19. Fac simile of any matter not required to be inserted ; but it shall be suflScient to describe the same as in an indictment for stealing. Possession. — § 20. Meaning actual possession, or know- in trly having such matter in any dwelling-house or other building, lodging or apartment, field or other place, open or inclosed, occupied by the offender or not ; and whether such matter be for his own use or for the use of another. }yitne88es. — § 21. Parties interested may be competent witnesses. Repeal of Acts («).—§ 22. Inter alia 7 §, 4 & 5 V., c. 28. Public Improvements — 3 §, 4 & 5 V., c. 33. Government Loan — part of 17 §, 9 V., c. 34. Registry Laiv — 9 V., c. 3. Forgery — 3 §, 9 V., c. 61. Lunatic Asylum — 4 §, 9 v., c. 65. liebellion Losses, Loiver Canada — 3 §, 9 V., c. ijio. Public Works — *50 G. III., c. 4. Bills of Exchange -part of 25 & 26 §§ of *3 W. IV., c. 3. Capital Off aces —8 §* 7 W. IV., c. 14. Forms of Enactment. Commencement of Act. — § 23. Act to commence on 1st January, 1848. By 13 & 14 v., c. 53, § 86, (Division Court Act) any per- son forging the seal or process of this court, or serving or enforcing any forged process, or delivering or causing to be delivered to any person, any paper falsely purporting to be a copy of any summons or process of the court, knowing the same to be false, or who shall act or profess to act under any false colour, or pretence of the process of this court, shall be guilty of felony. By 13 & 14 v., c. 17, s. 16, forging, or issuing any forged postage stamps, is made felony. By 13 & 14 v., c. 19, § 6, forging the seal or signature to auy certified copy of certain official documents pertaining to the courts of law or equity therein mentioned is made felony. By 16 v., c. 19, § 11, forging any seal, samp or signa- ture, to any document mentioned in this act (act to improve the law of evideuv: ) in Upper Canada), or knowingly tender- ing the same in evidence, is made felony. FREE GRANTS. By 16 v., c. 159, § 9, free grants not exceeding 100 acres (a) The other acts referred to as repealed, are of a private description ; or relate to Lower Canada, and are not therefore inserted in this work. m 362 jffutimt Jfflonu. ;.-; «s J !i"! 'Is'. w?lt'F* "■-;■ 'ill lift'' ' wXm^'rM ^i« may be made to actual settlers on the line of roads in new «ettlements. § 10. Or for markets, and other public pur- poses, to tho extent of ten acres. FREE TRADE. See " Reciprocity." FRUIT TREES. See poit title " Trees:' FUGITIVE FELONS. * By statute 37 G. III., 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 Ame- rica, for any felony or crime of a higher nature, shall cscupe, 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 isHuing the warrant) en- dorse 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, first entering into recognizance with sufficient sureties, in not less than jCaO, 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. (a) *By statute 3 W. IV., c. 6, entitled, "An Act to provide for tho apprehending of fugitive offenders from foreign couu- trios, 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 cxcou- tivc council, on requisition being made by the government of any country, or its ministers or officers authorised to make the same, within the jurisdiction of which country tlie crimes hereinafter mentioned shall be charged to have been committed, to deliver up to justice any person who mav have fled to tliis province, or who shall seek refuge therein, being charged with murder, forgery, larceny or other crime, committed without tho jurisdiction of this province, which crimes, if committed within this province, would, by the laws thereof, be punishable by death, corporal punishment, by pillory or whipping, or by confinement at hard labour, to the end that such person may be transported out of this ' (a) This act, although not expressly repealed, is virtually superseded b) the Ashburton treaty ; so held in the case of Regina t. Tabbee, Bobiuson':* Practioo Reports in Chambers, vol. 1, page 98. .mco. ovide couu- llwt lorised xccu- nmeiu sed uj 17 till' c been mav icrein, crime, wliicli by ilio ,\imcnt, our, to of tbis Irseded by lobinson'') iFttffitftie fftlonu. 353 province to the place where such crime shall have been charged to have been committed ; provided always, that this shall only bo done upon such evidence of criminality as ac- cording to the laws of this province^ would, in the opinion of the Governor and of the executive council, warrant the appre- hension and commitment for trial of such fugitive from jus- tice, or person so charged, if the offence had been committed within this province. § 2. And for preventing the escape of any person so charged, before any order for his appre- hension can bo obtained from the Governor, it shall be lawful for any judge, or for any justice of the peace, within his jur- isdiction, to issue his warrant for the apprehension and for the commitment of the accused, until application can be made to the Governor, and an order made thereupon ; which warrant shall, nevertheless, only bo granted upon such evi- dence (on oath) as shall satisfy such judge or justice that the person accused stands charged with some crime of the de- scription hereinbefore specified, or that there is good ground to suspect him to have been guilty thereof. By 12 v., c. 19, reciting that, Whereas by the tenth article of a treaty between her Majesty and the United States of America, signed at Washington, on the 9tli day of August, 1842, (the ratifications whereof were exchanged at London, on the 30th day of October, in the same year,) it was agreed that her Majesty and the said United States should, upon mutual requisitions by them or their minis- ters, officers, or authorities respectively made, deliver up to justice all persons who, being charged with the crime of mur- der, or assault with intent to commit murder, or piracy, or iirson, or rubberi/, or forgery, or the utterance of forged pa- per, committed within the jurisdiction of either of the high contracting parties, should seek an asylum, or should be found within the territories of the other; provided that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged .•ihould be found, would justify his apprehension and commit- ment for trial if the crime or offence had been there committed ; and that the respective judges and other magistrates of the two governments should liave power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the ap- prehension of the fugitive or person so charged, so that he might be brought before such judges or other magistrates re- spectively, to the end that the evidence of criminality might be heard and considered ; and if, on such hearing, the evidence should be deemed sufficient to sustain the charge, it should be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant might issue for the surrender of such fugitive, and that the expense 45 . -^ i m'- '3. 31:, ■ -i I'f h;\'i ■I ■ '.'{■ 354 iFu0f IfUr :ffflon». It [I ^■tti; I! U ■,((?'. ■ill? of such apprehension "and delivery should be borne and defrayed by the party making the requisition and receiving the fugitive; and it is, by the eleventh article of the said treaty, further agreed, that the tenth article hereinbefore recited should con- tinue in force until one or other of the high contracting parties should signify ''^ wish to terminate it, and no longer; and re- citing, that the provisions of the imperial act, 6 and 7 V,, had been found inconvenient in this province, and more especially that provision which requires that before any such offender shall be arrested a warrant shall ssue under the hand and seal of the person administering the government, to signify that such requisition as aforesaid hath been made by the authority of the United States, for the delivery of such offender a? "'"oresaid, and to require all justices of the peace, and other magistrates and officers of justice, within their several jurisdictions, to govern themselves accordingly, and to aid in apprehendinjT the person so accused, and committing such person to gaol, for the purpose of being delivered up to justice according to the pro- visions of the said treaty, inasmuch as by the (Mai/ accasioncd by compliance with the said provision, an offender mav have time afforded him for eluding pursuit ; and reciting, that by the fifth section of the said act it is enacted, that if by any colonial enactment provision shall be made for carrying into complete effect, within such colony, the objects of the said act, by the substitution of some other enactment in lieu thereof, then it shall be competent to her Majesty to suspend the operation within such colony of the said imperial act, so long as such substituted enactment should continue in force there : and re- citing that it was expedient to make such provision within tliis province accorc'ingly. § 1. It is therefore enacted, that it shall ])e lawful for any of the judges of her Majesty's superior courts in this pro- vince, or for any of her Majesty's justices of the poaco in the same, upon complaint made under oath or affirmation charging any person found within the limits of tliis |irovincc with having committed, within the jurisdiction of the United States of America, or of any such States, any of the crimes enumerated or provided for by the said treaty, to issue hi^ warrant for the apprehension of tl'e person fso charged, that he may be brought befor such judge or such justice of the peace, to the end that evidence of criminality may bo hoard and considered ; and if, on such hearing, tlie evidciite be deemed sufficient by him to sustain the charge accordini' to the laws of this province, if the offence alleged bad been committed therein, it shall be his duty to certify the same, together Avitl^ a copy of the testimony taken before him, to the Governor or Lieutenant-Governor of this province, or to the person administering the government of the same for tiio iffuQimt jfdonn. 355 time being, that a warrant may issue upon the requisition of the proper authorities of the said United States, or of any of such States, for the surrender of such person according to the stipulations of the said treaty ; and it shall be the duty of the judge, or of the justice of the peace, to issue hie war- rant for the commitment of the person so charged to the proper gaol, there to remain until suoh surrender shall be made, or until such person shall be ('ischarged according to law. § 2. In every case of such complaint, and of .\ hearing upon the return of the warrant of arrest, copies of the depo- sitions upon which an original warrant in any of the United States may have been granted, certified under the hand of the person or persons issuing such warrant, or under the hand of the officer or person having the legal custody thereof, and attested, upon the oath of the party producing them, to be true copies of the original depositions, may be received in evidence of the criminality of the person so ap- prehended. § 3 authorises the Governor, upon such requi- sition of the United States, or any of the States, to order the delivery up of the offender accc -dingly ; and in case of escape, the offender may be re-taken in the same manner as any person accused of crime against the laws of this province. § 4. When any person committed under this act, and not delivered up and conveyed out of the province within two calendar months after his commitment, over and above the time actually required to convey the prisoner from the gaol to which he or she may have been committed, by the readiest way out of this province, it shall be lawful for any of the judges of her Majesty's superior courts, having power to grant a writ of Habeas Corpus, upon application, and upon proof of reasonable notice given to the provincial secretary, to order the prisoner to be discharged, unless sufficient cause be shewn to the contrary. § '■>. This act to continue during the continuance of the tenth i. 'icle of said treaty, and no longer. Warratit to apprehend a Fiu/itive Felon. Province ok Canada. County of | To all or any of the constnblos or oilier peace l( wit. j oliiccrs iti the couiity oi' Wlioreas A.B. of , in the state of Now York, constable, lialh this day made information and complaint upon oath, be- fni'c mc, J. 0., Esquire, om; of lior Majesty's justices of the peace for the said countVi thiU ('. 1)., late of Buffalo, in the said state of New York, labourer, now stands charircd upon oath, in the said state of New York, to wit, at Buflulo, with hav- ini' [here stafr the ojfrna chat'(j((t)^ and tliat a warrant hatli been ill Hi ■; I i- '. * r • tM!''l . t I. ^C' ■ i f m u:i !fi ;i. h^i M • . ! if- •: 1.1' :, It' V " ^-'^^ rli'-i f! 366 iSS^ame. issued at Buffalo aforesaid, for 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 the said county. These are, therefore, by virtue of the statute in such case made and provided, to command you, in ler Majesty's name, forthwith to apprehend and bring before me, or some other justice of the peace for the said county, the boay of the said C. D., to be dealt with according to law. Herein fail not. Given under my i;and and seal, &c. Mittimus of a Fugitive Felon. Province of Canada. County of > To all or any of the constables or others, the to wit. ) peace officers of the ccunty of , and to the keeper of the common gaol at , in the said county of . These are to command you, the said ronstab' s in her Majesty's name, forthwith to convey and deliver into the cus- tody of the keeper of the said gaol the body of C. D., huc of , who is charged on the oath of A. B., &c., [liere statr ihc particulars,'] and you the said keeper are hereby rcfjuiicj l, receive the said C. D. into your custody, in the said goal, and him saft'ly keep, to be dealt with, and until he shall be delii-ered from your custody according to law. Given under my hand and seal, &c. GAME. By 19 k 20 V., c. 94 (which repeals all ibrmer acts), § 1, enacts that no deor, moose, elk, reint'^cr, or carriboo shall be hunted or killed between ihc 1st February and the 1st of AufTUst. §2. No wild turkey, grouse, partridge, or pheasant, shall be hunted, taken or killed between the 1st of March and the 1st of September. § 3. No duck shall be hunted, taken or killed between the 1st of March and the 1st of July. § 4. No woodcock, between fhe 1st of March and tiie 1st of July, i^ T). No wild swan, goose or duck of the kinds hnown as the mallard, groy duck, b ack duck, Avood duck or any of the kinds of duck known as teal, between the ir)th of April mid the 1st of August, i^d. No wild turkey, grouse, part- ridge, or pheasant, quail or woodcock shall bo trapped nr taken by traps, nets, springes or other means (Other than shooting) at any time whatever, nor shall any trap, net, or snare be made, erected, or set for such purpose. ^ 7. No person shall have in possession any of the animals or birds aforesaid, within the times prohibited without lawful excuse. § 8. Any offence against this act shall be j)unislH'(l on con- viction before a justice of the peace, by a fine not exccedin;^ Car. II., c. 7, § 2, if any person by any fraud, un- hnvtul device, or ill practice, in playing at or with cards, (lice tables, tennis, bowls, skittles, shovel-boards, or in or by cock-fighting, horse-races, dog-matches, foot-races, or other pastimes, or by i)ettinrally, and to the whole internal econumy and management of the gaol, and all such matters connected therewith as sliall be thought by them expedient; which rules and regulations shall be transmitted to the Lieutenant- (iovcrnor of this province to be laid bciv. i 'a house of the i M i. I ''.'.ft'., ll m }'■ ^1 362 ^uolu. a . <^ wr um W-^' M !1I|;'h/ li-n;^ legislature at their next session, and shall not take effect until after the termination of such session. § 7. First meet- ing of the commissioners shall he on the first Monday in May next, at which meeting arrangements shall he made for sub- sequent meetings ; and a majority present at any meeting shall be competent to transact business. § 8. Commissioners shall make a yearly report to both branches of the legisla- ture. *By the 3 V., c. 14, § 1, if any person shall convey or sup- ply to any prisoner, confined in any common gaol or house of correction, in any district in this province, any rum, brandy, whiskey or other spirituous liquors, contrary to such rules and regulations as have been or shall be hereafter established by law, every such offender, being duly convicted thereof before two justices, shall be liable to a fine not exceeding £b. § 2. Any person being charged on the oath of one or more witnesses before any one justice, with any offence against this act, such justice may summon such person to appear at a time and place to be named in such summons, and if he shall not appear, then (upon proof of the due service of the summons upon such per- son personally) any tivo justices of the district may hoar and determine the case, ex parte, or issue their warrant for appre- hending such person, or any one justice may, if he shall think fit, without any previous summons, issue such warrant. § ;]. No conviction under this act shall bo quashed for want of form, and no warrant of commital held void by reason of any dttVpt therein : provided it be alleged that the p »rty has been con- victed, and there is a good and valid conviction to sustain the same. § 4. Such justices shall have power to suinuion witnesses in support of the prosecution, or for the defendant; such witnesses neglecting to attend without some reasonable excuse, may be fined by the justices assembled to try the offence in any sum not exceeding £5. § 5. In default of payment of any fine imposed under this act, together with the costs, within the time specified at the time of the con- viction by the justices, such justices may issue their warrant to any constable to levy the same within a certain time. expressed in the warrant ; and in default of sufficient dis- tress, to commit the offender to the common gaol or house of correction, for any time not exceeding one calendar month, unless the fine and costs be sooner paid. By 19 k 20 V., c.48, § 201, the limits of cacdi county and union of counties in Upper Canada for judicial purposes arc declared to be the limits of the gaols of such counties or union of counties. For all purposes of arrest the limits constitute the gaol, m iSiu^ nntf Wiuttv WiovftH* 363 and the debtor while confined within the limits is in custody. ^Barrison's 0. L. Procedure Act, p. 501, note 1. GARDENS. By statute 4 & 5 V., c. 26, § 21, if any person shall un- lawfully and maliciously destroy, or damage with intent to destroy, any plant, root, fruit, or vegetable production grow- ing in any garden, orchard, nursery ground, hot house, (rreen house, or conservatory, every such offender, being convicted thereof before a justice of the peace, sliall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding Uvo pounds, as to the justice shall seem meet. § 22. And if any person shall unlawfully and maliciously destroy, or damage with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed, not being a garden, orchard, or nursery ground, every such offender being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the amount of injury done, such sum of money not exceeding twenty shillings, as to the justice shall seem meet. See also joos^ title " Vegetables.'' GAS AND WATER WORKS. By 10 v., c. 173, § 1. Any five or more persons may form a company for the purpose of supplying any city, town or incorporated village with gas or water upon the conditions mentioned in the act. § 24. Municipalities where the works are created may subscribe for stock. § 26. The company may break up streets for laying the mains and pipes. § 27. And may carry pipes over and through private property in certain cases and on certain terms. § 28. The works in no wise to endanger public health. § 80. If any person shall Tvilfully or maliciously damage or destroy any main pipe, engine, waterhouse, pipe, plug or other works or apparatus, or any materials, or any injury or damage for the purpose of obstructing or hindering the construction or repairing of any such works ; or shall bathe, wash or clean any cloth, wool, leather, skin, animals oi- any nauseous or offensive thing, or cast, throw or put any filth, dirt or nauseous thing, or suffer the water of any sink, sewer or drain to run into, or cause any other conveyance to the water Avithin any reservoir, cistern, pools, ponds, sources or fountains supply- ing water, or shall increase the supply of gas or water by M f . 't ■; t 364 iSrUU uM Wiuttv WiovUn. •m■■f■'^^f If WV ' '• K\: I " *:■ ■ !i'r'^i|i^fff:n i.lU U:, ■: / imiij ;i #14 = II- • ra |»fif' { 'X: ill if IMAGE EVALUATION TEST TARGET (MT-3) 1.0 If "^ I I.I 2.5 S lit ■•" :: I 1^ is liil-it Photographic Sciences Corporation ^"^ 33 WHT MAIN STIHT WItSTIR.N.Y. MSM (716)S7r4S03 366 ^vummuv ScHoolfit. r 1. * ^ § 3. The chief superintendent shall, on or before the first day of May in each year, notify each county council through their clerk, of the annual apportionment of grammar school moneys, and give notice thereof to the Inspector-General ; and such moneys shall be payable to the treasurer of each county entitled, one-half on or before the first day of July^ and the other on or before the 31st day of December, in such manner as may be determined by the Governor. Pro- vided always that the sums raised by local assessment or subscriptions shall be payable on or before the fourteenth day of December. § 4. The sums so annually apportioned as provided in § 1, shall be expended in the payment of the salaries of teachers and for no other purpose. § 5. That in '^ach grammar school provision shall be made for instruction by a teacher or teachers of competent ability and good morals, in all the higher branches of a practical English and commercial education, including the elements of natural philosophy and mechanics, and also in the Latin and Greek languages, and mathematics, so far as to prepare stu- dents for University College or any college afiiliated to the University of Toronto, according to a programme of rules to be prescribed by the council of public instruction for Upper Canada, and approved by the Governor in council. § 6. The council of public instruction (of wMch the presi- dent of the University and the president or head of each of the affiliated colleges shall be members for the purposes of this act) shall prepare a list of text books, programme of studies and general rules for the government of such gram- mar schools, to be approved by the Governor in council. § 7. The chief superintendent to make an annual report to the Governor, on or before the first of July, of the actual state of such grammar schools, shewing moneys expended and from what sources derived, with such suggestions for improvement as he may deem expedient — to see that the county grammar school fund so apportioned is duly applied— and that such schools are conducted according to law, and to prepare suitable forms, and give such instructions as ho shall judge necessary for making reports and conducting proceedings under this act, and to cause the same, witli a sufficient number of copies of this act, and such rules and regulations approved as aforesaid to be printed and trans- mitted to the proper parties. § 8. The trustees appointed before this act shall come into force to continue ex-officio trustees until the appointment of new boards. § 9. Tlic several grammar school trustees shall meet together on the iS^tummw S&t'^ooln, 367 first Wednesday in January next after this act, and select from among themselves three trustees (one of whom shall annually retire on the Slst January) for each of the grammar schools in such county or union, who, with three other trus- tees for each school to be chosen as hereinafter provided by the municipal council of the county or union, shall compose the board of trustees (consisting of six members, three of whom shall constitute a quorum) for each such grammar school, to retire in order by lot : and the several county municipalities at their first sittings after the first of January next, shall select and appoint three fit and proper persons, one of whom shall retire annuL^'y on the 31st day of Janu- ary, to be trustees for each gr tmmar school within their counties or unions, and shall also decide the order in which the persons so chosen shall retire from the board. Vacan- cies to be filled up by such county municipality for the residue of the year, and the places of the two persons annually retir- ing (but may be re-elected) shall be filled up by the county municipality at its first meeting after the first of January in each year. § 10. Contains a provision for the appointment of a board of trustees (not less than six nor more than eight) for any county or union to be hereafter formed. § 11. Boards of trustees incorporated. To meet annually on the first Wednesday in February. Their duties being, 1st, to appoint annually a chairman, secretary and treasurer, and to fix the times and places of meeting, &c. 2nd, to take charge of the county grammar school, remove or appoint the master or other teachers, as they think fit — fix their salaries and pre- scribe their duties ; to appoint officers or servants in such school, and fix their remuneration. To take care of the school buildings, &c., and to apply for the requisite amount to be raised by the municipality. Provided that no person (except a graduate of some university or college) shall be appointed master of a grammar school, unless he shall have previously obtained a certificate of qualification from a com- mittee of examiners (one of whom shall be the head master of the Normal School) appointed by the council of public instruction. 3rd, to settle the amount to be paid by parents for each pupil attending such school, and the time of pay- ment, and to apply the money towards teachers' salaries, providing apparatus, books, &c., and other necessary ex- penses. 4th, to employ such means as they may judge expedient in concurrence with the trustees of the school sec- tion, for uniting one or more common schools with such grammar school. The schools when united to be under the management of the joint board of grammar and common H s -^^h I mr^ k'] i ■ i fl*'i ^'l'^ ■ f.' t', ■ 'I !i ■=;.:;■! » iilil •'■ '■'-■if f'fii si* 'ilF 368 &vnnXf Stars* school trustees. 5th, to see that the pupils are supplied with proper text books, that public half-yearly examinations are held and due notice given, and that such school is con- ducted according to law. 6th, to give the necessary orders upon the county treasurer for the school money, and upon their own treasurer for moneys in hand, for payment of salaries and expenses ; and to prepare and transmit before the 15th January their annual report of the school to the chief superintendent. § 12. Each grammar school to be designated by a certain description. § 13. The grammar school in any county town to be 'deemed the senior county grammar school — and any city in which the assizes are held shall be considered a county town for the purposes of this act. § 14. County municipalities authorised to establish additional grammar schools within their limits, appoint trustees accordin .( J, fii 'i,'' J :t 'I ■ Ip'I'i !; ;«^l^"^--' If-; ■ ■ 11 I"!*: I ffarrant of commitment ; also, if any person is committed, and charged as accessory before the fa^t to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and especially expressed in the warrant of commit- ment ; 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 express- ed, yet, if he shall in open court the first week of the term, or first day of assize, petition to bo 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 judce upon oath, that the king's witnesses could not be proiluced 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 he- half, shall demand of the officer or keeper a true copy of the warrant of commitment, Avhich he shall deliver in six hours. on pain of .£100, to the party grieved, for the first offciue; and £200 and forfeiture of his office for the second : then application is to bo made in writing 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 ; and a copy of the warrant of commitment shall be produced before them, or oath made that such copy was denied ; hut if any person hath wilfully neglected by the space of two terms to apply for his enlargement, he shall not have an Jiaheas corpus granted in the vacation. This being done, the Lord Chancellor or judges respectively shall award an habeas cor- pus, under the seal cf the court, on pain of j£500, to be marked in this manner, per statutum tricesimo prima Caroli sccuncli regis, anO signed by the person that awards the same, and shall be directed to the officer or keeper, returnable immediate; and the charges of bringing the prisoner shall be ascertained by the judge or court that awarded the writ, and endorsed thereon, not exceeding twelve pence a mile : then the writ shall be served on the keeper, or left at the gaol Avith any of the under officers; and the charges, so endorsed, shall be paid or ten- dered to him, and the prisoner shall give bond to pay the charges of carrying him back, if ho shall be remanded, and that he will not make any escape by the way. Tiiis done, the officer shall within three days after service, (if it is within twenty miles) return the writ, and bring the body, and siiall jl^mutvu atiTr Jlenutfii. 373 then certify the true cause of the imprisonment ; if above t^venty miles and less than one hundred, then within ten days ; if above one hundred, then within tAventy days ; on like pain as before. But, after the assizes are proclaimed for the county where the prisoner ia detained, he shall not be removed. Then if it shall appear to the said 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 matters, or by warrant of a judge or justice of the peace, for matters for which by the law he is not bailable, in such case the prisoner shall not be discharged : if he shall be discharged, he shall thereupon enter into 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 discharge for a criminal offence, shall be kept in custody for such other suit ; and persons so set at large shall not be recommitted for the same offence, unless by order of court, on pain of £500 to the party grieved. *By B W. 4, c. 2, § 7, upon application to the Court of Queen's Bench or any judge thereof, the same order touching the person being bailed or continued in custody, shall be made as if the party were brought upon habeas corpus. The 4 & 5 v., c. 24, § 6, also contains a similar provision. HAWKERS AND PEDLERS. Bv IC v., c. 184, § 2, (the act repealing all former acts,) the municipal council of any county or city in Upper Canada, is authorised to make by-laws for regulating and governing liawkcrs and petty chapmen, and other persons going from place to place, or to other men's houses, or who have not become householders by permanent residence in any town or place within such county or city, or travelling cither on foot or with a horso or horses, mule or mules, or other beast or beasts, bearing or drawing burthen, boat or boats, decked vessel or vessels or other crafts, or otherwise within such county or city carrying to sell or exposing to sale any goods, wares or merchandize, and for requiring any such person to take out a license from such officer of the municpality as bhall bo designated in such by-law, before it shall be lawful for him to exercise any such calling as aforesaid, within such county or city, and for fixing the sum which shall be payable tor such licenses and the time during which the same shall be ill force, and for imposing penalties for the contravention of any such by-law. 374 Jj^tivu anXf mti^itiuu. 1' * :' ' . .wl ?: !!'^ :8»l I' #f'iii, tell' m i HEIRS AND DEVISEES. By 8 v., c. 8, § 1, all the former acts are repealed. R o The Governor authorised to issue commissions to tlio chief justice of the Queen's Bench, (a) the vice-chancellor and the puisne justices of the said court of Queen's Bench, and such other persons as he shall see fit ; three of whom (the chief justice, vice-chancellor, or one of the puisne judges beiiiir one) to be a quorum, with full power to determine who is the party entitled to patent : sittings to be held at Toronto on the first Monday in January and first Monday in July every year. § 3. Any party claiming lands (for which no patent has been issued) as heir, devisee or assignee of the original nominee of the crown, or claiming from or through sucli parties, is required to bring hi? claim before the com- missioners, and his documents, proofs and evidence iu sup. port thereof — such evidence to be given viva voce before the commissioners, or by written depositions sworn before one of the commissioners, or before the judge of any circuit court, clerk of the peace, or any commissioner for rccoivinir affidavits in the Queen's Bench. § 4. The commissioner^ empowered to command the attendance of witnesses, and to issue commissions for the examination of witnesses not resi- dent in Upper Canada. § 5. No claim to be received or proceeded upon by the commissioners until claimants (or one of them, if more than one) shall have made and produccil before tlie commissioners an affidavit in writing, signed hv him, that sucli claim is just and well-founded to the best of his knowledge and belief, and that he is not aware of any adverse claim ; or if he be aware of any adverse chv'ni, thiit he has caused notice in writing of his claim and of his inten- tion to bring the same before the said commissioners at the time when it shall be actually so brought (a copy of wlucli notice shall be annexed to the affidavit), to be served on the party having or being supposed to have such adverse claim, at least one month before the date of such aflidavit. § C. Notice specifying such claim, and the name or names of the parties, together with the number of the lot (or part thereof) claimed, concession and township where situate, to be put up in the office of the clerk of the peace of the distiiet at least thirty days before the claim is heard before the com- missioners, and to be certified by the clerk of the peace accord- ingly; the clerk of the peace, once in every three months, to make a list of the claims so put up in his office, and the particu- lars thereof, and to affix such list in some conspicuous part of (a) Common I'leas, included by the 14 &, 15 V., c. 12. j&tivn mrt m\}i»ttn. 375 the court-house, and cause such list to be publicly read and proclaimed in open court at the general quarter sessions, by the cvlor of the court, immediately after the charge to the fiantl jury — for which certificate the clerk of the peace shall ^c entitled to two shillings and six-pence, and no more. \ 7. The commissioners may defer claims for further evi- dence, as they shall deem expedient ; § 8, and after full ex- amination, reject or allow such claims as in their judgment the justice and equity of the case may require, without regard to legal forms, or to the strict letter of the law, or legal rules of evidence, and to report their decision to the Governor in council — such decision to be final and conclusive (except as hereinafter mentioned), and patents to issue accordingly ; ijuch patents not to affect any existing charge or incumbrance. § 9. Patent not to issue until after one calendar month from the time of such report ; and if in the meantime any quorum of the commissioners shall have reason to believe that such decision and report were obtained by surprise, or erroneously made, then such quorum may report accordingly to the Governor, and the patent shall be stayed until re- hearing and further report, with power to award costs to cither party according to circumstances. § 10. Purchasers of unpatented lands sold for arrears of taxes, may file their claims for a patent. § 11. Any mortgage, incumbrance or lien on unpatented lands to have the same effect as if patent had been previously issued. § 12. Unfinished proceedings before former commissioners may be continued before those appointed under this act. §13. Affirmation instead of oath may be made by persons allowed by law to affirm ; and false swearing or affirming to be perjury. § 14. Commissioners may make and establish rules and forms of proceeding. § 15. And allow witnesses' expenses. § 10. Fees to be taken by the clerk to the commissioners as follows, viz : — £ .S-. (I For filing petition 1 For setting down chiim to be heard ii On tlie hearing of any claim 5 For making report thereon 10 For each certificate of allowance 13 For copy of order respecting any claim 1 3 For each summons for a witness 2 For each commission for examination of Avitnesses 10 For any cortiffed copy of any paper (for the certificate) 1 3 And for every folio of 100 words 6 And such reasonable fees for extra services as the commissioners shall allow. I --'i- HH rJ i' ill Ml < i.i : vl i.C ■'i 1 f; ■ I •a.- '4 y the commissioners, certified by the clerk, and counteif^i/Tnofl by one of the commissioners, to be evidence at lav/. § IJ^. Interpretation clause. Notice of Claim. Notice is licreby given, that A. B., of , in tlie county of , yeoman, will claim before the commissioners appointed to ascertain the heirs and devisees of original nominees of thu Crown to lands not under patent, at their sittings at Toronto, in the month of July next, lot number , in the concession of the township of , in the county of (here dcscri'Lc uni/ other lot also tuider claim) as eldest son and heir-at-law, [or as assignee or devisee under the will) of C. D. late of , the origi- nal nominee. Certificate thereon. Office of the clerk of the peace, M do hereby certify, that the for the county of , ) within written notice was put in tlie court-house at in the county 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 court at the general quarter sessions of the peace of the said county, held in the month of last, at aforesaid immediately after the charge to the grand jury pursuant to the staiuie in such case made and provided. Dated at aforesaid, the day of 18 . a. G., Clerk of the Pence, Count i/ of By 14 k 15 v., c. 12, commissions to be directed to the jud^^cs of the Queen's Bench and Common Pleas, and the Chancellor and Vice-Chancellor, and as many others as the Governor may see fit ; any three to be a quorum. The Chief Justice of Q. B., or C. P., or one of the judges, the Chan- cellor or Vicc-Chancellor, being one. By 14 & 15 v., c. 56, the right to any patent when established may be assigned. HIGHWAYS. A highway is a public passage for all the king's liege sub- jects, for which it is denominated in legal proceedings, the king's highway. — Deacon s G. L. 567. A way may also become a public highway by a dedication of it by the owner of the soil to the public use ; and eight years, without any impediment, has been held suflScient dedication. — 11 East. 375. All injuries to a highway — as by digging a ditch, or mak- ing a hedge across it, or laying logs of timber on it, or by doing any other act which renders it less commodious, are Wfit^tx^nsn. 377 public nuisances at common law, and indictable. — 1 Haw. c. 76, § 144. On an indictment for obstruction to a highway, tlie judfjment of the court is usually a fine, as well as an order on tho defendant to abate the nuisance ; in order to warrant a judgment for abating a nuisance, it must be alleged in the indictment to bo continuing. — R, v. Steavhen and how to be made ; forfeiture in default of pay- ment. § 17. The company may sue for the amount of calls. § 19. Provision made for the union of two or more compa- nies in certain cases as one company, and how. § 20. Roads and materials to be vested in the companyv § 21. Authority given to companies already formed to search for and take materials for making and keeping roads in repair. § 22. Materials of which roads under this act may be formed. § 23. Municipalities authorised to acquire stock in such companies, and to direct the chief officer thereof to subscribe and vote on behalf of such municipality. § 24. Municipalities also authorised to make loans to such compa- nies, and issue debentures. § 25. Companies empowered to sell any such road to the focal municipality. § 20. And municipalities authorised to sell any road which they may have constructed or purchased, or any road stock. § 27. Companies incorporated under this act bound to complete the work within a certain period, or forfeit their charter. ^^ 28. Authority vested in the president and directors of any such company to fix, regulate, and receive the tolls and charges to be received. Provided that so soon as two or more miles of any such road or extension thereof shall have been completed, tolls may be taken therefor, but on no other work until the same be completed. § 29 enacts that tolls may be taken by any such company at ei.oh time of passing each gate upon any road constructed or owned by such com- pany for any portion of such road on either side, or on both sides of the said gate (not being more than five miles) to the next gate or gates on the same road, if any, and not ex- ceeding five miles in the M'holc, or for the whole of such road, if the length thereof do not exceed five miles, and there be only one gate thereon, at the following rates, viz : sm tAM i^ ',)i i P.mM^ ! ai : :iiv« " ! ^:.H- it In 382 9ifiif»nsn. For every vehicle whether loaded or other- mrmilb. wise, and for the horse or other beast, £ s. d. or one of the horses or other beasts drawing the same 1 And for every additional horse or other beast drawing any such vehicle OJ For every horse and rider 0| For every horse 0| For each head of neat cattle 0| For every score or number less than a score of sheep or swine 0|^ Provided always that any company shall have power to charge over and above these rates the sum of one half-penny for every 100 pounds over and above 4,000 pounds each loaded vehicle may weigh, and also that every vehicle loaded with masts, spars, hewn or round timber or otherwise exceed- ing in weight two tons shall, when loaded, at each time of passing each gate, pay for each ton over and above two tons the sum of 2s. 6d. currency. And all vehicles with wheels used for the above purpose, shall have not less than five inch tires, under penalty of paying double the amount of toll above provided. Provided also, that whenever any road to be constructed under this act, or already constructed under any act of the legislature shall intersect a road con- structed or owned by another chartered company, no higher rate of toll shall be demanded from persons travelling along the said last-mentioned roaJ for the distance travelled between such intersection, and either of its termini, than the rate per mile charged by the said company for travelling along the entire length of their road so intersected : pro- vided it shall be incumbent on such persons to produce a a ticket from the last toll gate on the intersecting road as evidence of their having travelled only from such intersec- tion. § 30. Tolls or bridges may, with the consent of the municipal council, excee V ; ■^;i i' v W I :r^ m tip'' ■y^i] y '^■ \i\ ' .' it ,1i if Iff'?! 3:1 f 386 ;i^f0!ltiia(|»0* shall or may be evaded, every such person shall, for every such offence, forfeit and pay a sum not exceeding 20s., to be levied as aforesaid with costs. § 46. Any person falsely claiming exemption, or evading the toll by any false representation or act, shall forfeit to the company or municipality owning the road, one pound and costs, to bo recovered summarily before any justice of the peace in the manner provided for recovery of other pen- alties. § 47. If any person shall wilfully and maliciously burn break down, injure, cut, remove or destroy in whole or in part, any toll-house, turnpike-gate, wall, lock, chain or other fastening, rail, post, bar or other fence belonging to any toll-gate or toll-house, set up, erected or used for the pur- pose of preventing the passing by such gate of persons, car- riages or other property liable to toll at such gate, or any house, building, engine or weighing-machine erected or used for the better ascertainment or security of any such toll • every such offender shall be guilty of a misdemeanor, and on conviction, punished either by imprisonment in the peni- tentiary for a term not exceeding three years, or by fine and imprisonment in the common gaol for any term not exceed- ing two years, at the discretion of the court. §48. If any person shall remove any earth, stone, plank or other materials used or intended to be used in or upon the said road, for the construction, maintenance and repair thereof, or sh.ill drive any loaded wheel carriage or other loaded vehicle upon that part of any of the roads constructed under this act, or by any incorporated company under any other act, between the stones, plank or hard road and the ditch further than may be necessary in passing any other vehicle, or in turning off or upon such road, or shall cause any injury or damage to bo done to the bridges, culverts, pools, rails or fences, or shall haul or draw upon any part of any road constructed ;is aforesaid, any timber, stone or other thing wiiich shall be carried principally or in part upon wheeled carriages, or upon sleighs, so as to drag or trail upon such road to the prejudice thereof; or if any person shall leave any waggon, cart or other carriage whatsoever, upon such road without some per- son in care thereof, longer than may be necessary to load and unload the same (except in case of accident, and in case of accident for any longer time than necessary to remove the same) or shall lay any timber, stones, rubbish, or other thing whatever upon the said road to the prejudice, interruption and danger of any person travelling thereon, or if any person shall after having blocked or stopped any cart, waggon or f^filfjiiia(|?fii« 387 other carrirge in going up a hill, or rising ground, cause or suffer to remain on such road, any stone, or other thing with which such cart or carriage shall have been blocked or stopped, or if any person shall pull down, damage, injure or destroy any lamp or lamp-post, put up, erected or placed In or near the side of such road, or any toll-house erected thereon, or shall wilfully extinguish the light of any such lamp ; or if any perjit.r shall wilfully pull down, break, injure or damage any table of tolls, put or fixed at any gate, check-gate or bar, or any part of such road, or any iign board erected by any company upon any road or bridge constructed by t'lr m, or shall wilfully deface or obliterate any of the letters, figures, or marks thereon, or on any finger-post, or mile post, or stone; or if any person shall throAV any earth, rubbish, or any other matter or thing into any drain, ditch, culvert or other water-course made for draining such road ; or if any person shall, without permission, carry away any stones, gravel, sand or other materials, dirt or soil from any part of any such 'oad, or dig any holes or ditches on the allowance for the same ; or if any person shall allow any swine to run at large to the injury of the said road, every such person shall, upon conviction in a summary way before any justice of the peace in or near the place where the injury shall have been done, be sentenced to pay all damages sustained, by such justice on hearing the complaint: and to pay a fine of not more than 50s. nor less than os. with costs, such damages, fines and costs to be paid within a time to bo limited by such justice, and in default, levied as hereinafter provided. § 49. It shall not be lawful for any company, municipality, contractor or sub-contractor, or person employed by them, to leave or place upon the graded part of any road, whether or not macadam- ised, gravelled or planked, any stone, gravel, plank, timber, or other materials, so as to prevent the public from using, or to impede the free use of the whole of such graded portion of the road ; and for any offence against this section, such com- pany, &c., shall be responsible for all damages arising from such offence : and such contractor, sub-contractor or other person as aforesaid shall also incur a penalty of not less than 08, nor more than £5, to be recovered summarily before any justice of the peace, in the manner provided by this act for the recovery of other penalties. § 50. The fines and for- feitures authorised to be summarily imposed by this act, shall and may be recovered upon information and complaint before any justice of the peace of the county within which the same shall have been incurred : and may be levied and col- lected by distress and sale of the offender's goods and chattels r^ s ^i' M: •*<* ■ ■ ' ' ■ * '! ri-'i i ;'5:; ■m ^■■! 5t -l Si,i^ il'' IH '^S I'lK-'i Iff f.' t |l:'.. ftm mm t^ : '-■•-■ -iUi? 388 f^fdliUiaj^0* by warrant of distress for that purpose to be issued, and in case there shall be no goods or chattels to satisfy such warrant, such offender or offenders shall and may be com- mitted to the common gaol of the county, for any period not exceeding one month : provided that neither this section nor any ti.ing therein shall be held or construed to interfere with the provisions made in the 41st § of this act, for issuing a warrant of commitment in the first instance. § 51. The offender to bo summoned : and in the default of his appearance upon proof of the service of such summons on the party personally, or by leaving a copy at his usual place of abode, such justice may proceed to hear and determine the case ex parte, or issue his warrant to bring the party before him or some other justice ; or the justice may, if he thinks fit, without previous summons, issue such warrant, and the justice before whom such party shall appear", or be brou"ht shall proceed to hear and determine the case. § b'l. Fines and fortcitures not otherwise appropriated shall, when collected, be paid to the treasurer of the com- pany or municipality owning the road. § 53. Suits for any thing done in pursuance of this act to be commenced within six calendar months. § 54. Otficors and stockholders may be witnesses. § 55. Companies formed bond fide under former acts confirmed notwithstanding any # informality in their formation, &c. § 5(3. Directors to make annual reports to the municipality of expenditure, &c. § 57. After 21 years from the completion of the work, the municipality may purchase the stock of the company at its value, and stand in their place. § 58. Provision fur amend- ing the act. § 59. Tiie provisions contained in §§ 3, 0, 7, 8 9, 10, 11, VI, 14, 10, 17, 18, 1 The jurors, &c. That A. F. late of, &c., to wit. \ yeoman, o\\ the, &c., with force and arms, at the township aforesaid, in tlie county aforesaid, in a certain street, being the Q,ueen's common highway there, called , used for all tlie Q,ueen's subjects, with tlieir horses, coaches, carts, and carriagi-s, to go, return, ride, pass, repass, and labour (it their free will and pleasure, unlawfully did dig, and cause to be dug, a crtain pit, containing in circumference fifteen feet, and in depth thirteen Icet ; and the same pit so jis aforesaid du" 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 townsliip afore- said, in the county aforesaid, unlawfully and injuriously did continue ; by reason whereof the Q,ueen's subjects, during the time aforesaid, could not go, return, pass, repass, ride and la- bour, with their horses, coaches, carts and oilier carriages, in, bv. and through the same street and highway, as they were wont, and ouglit to do, without great peril and danger of their lives, to the great damage and common nuisance of all the iit'ce subjects of our said lady the Clueen, in, by, and through tlie same street and highway, returning, passing, re-passing, riding and labouring, and against the peace, &c. Indictment for Stopping up a Watercourse, whereby the Highway is overfloived. Province of Canada : County of , ) The jurors, for our lady the Glueen, upon to wit. J their oath present, tha* A. O., late of the township of , in the county aforesaid, on the day of , in the year of the reign with force and arms, at the township aforesaid, in the county aforesaid, a certain an- cient watercourse adjoining to the Q,ueeii's common highway, within the same township, leading from to , with gravel and other materials unlawfully and injuriously did obstruct and stop up, and the said watercourse so as aforesaid obstruct- ed and stopped up from the said day of in the year aforesaid, until the day of the taking of this inquisition, at the tm i*.\. Kl','. %: .:.! > : ■ i :i : i hi 'i r » i ; ■; t f. •' i j' mi mkii: i-- i mm I 390 momiMt. township aforesaid, in the county aforesaid, unlawfully and injuriously hath continued, and still doth continue, by roason whereof the ruin and waters that were accustomed, and ouffhi to /low 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 Queen's common nighwav aforesaid, and thereby tht same was, and yet is, greatly hurt and spoiled, so that the liege subjects of our said lady the (iueen, through the same with their horses, waggons, carts and carriages, then and on the said other days and times 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, &c. HOMICIDE. Ilomicide in law signifies the killing of a man by a man. — 1 If aw., G6. And may be classed according to the fol- lowing degrees : — 1. Justifiable homicide. 4. Manslaughter. 2. Homicide by misadventure. 5. Murder. 3. Homicide by self-defence. 0. Self-murder. 1. Justifiable Homicide. To make homicide justifiable, it must be owing to sonic una- voidable necessity to which the person who kills another must be reduced, without any manner of fault in himself. — 1 Haw.iid. If any evil disposed person shall attempt feloniously to rob or murder any person in any dwelling-house or highway, or felo- niously attempt to break any dwelling-house in the night time and shall happen in such felonious intent to be slain, the slayer shall be discharged. — 24//. VIU.c.^. So, if rioters or forcible cnterers or detainers, stand in opposition to the justices' lawful warrant and any of them be slain, it is no felony, — Hale's PI. 37. And if a man come to burn mv house and I shoot out of my house, or issue out of my house and kill him ; it is no felony. — Hale's PI. 38. So, if a woman kill him that assaulteth to ravish her, it is no felony. — lb. 36. If a person having actually committed a feloiiv, will net suft'er himself to be arrested, but stands on his own defence, or flies, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant, he may be lawfully slain by them. — 1 Hatv. 70. So, if a felony hath actually been committed, and an officer having lawful warrant, arrest an innocent person, and such person assault the officer, the officer is not bound by law to give back, but to carry him la^omiMt. 391 j^^vay ; and if in execution of liis oflSco, he cannot otherwise avoid it, but in striving, kill him ; it is no felony. — 3 Inst. 5(5. Also, if a person arrested for felony break away from his conductors to gaol, they may kill him if .icy cannot otherwise take him. But in this case likewise there must have been a felony actually committed. — Hale a PL 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 cases, although the sheriff cannot kill a man who flies the execution of a civil process, yet if ho resist the arrest, the sheriff or his officers reed not give back, but may kill the assailant. — Hale's PL 37. So, if in the arrest and striving together, the officer kill him, it is no fglo^y. — Jb. 37. In all these cases (a) 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. Hori.icide by Misadventure. Homicide by misadventure is where a man is doing a law- ful act without intent of hurt to another, and death caaually ensues. — Hales PL 31. As, where a labourer being at work with a hatchet the head flies off, and kills one who stands by. — 1 Ha^o. 73. Or where a third person whips a horse, on which a man is riding, whereupon he springs out and runs over a child and kills him, in this ease the rider is guilty of homicide by misadventure, and he who gave the blow, of manslaughter. — 1 Haio. 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 misadventure ; and if he ride so, in a press of people with intent to do hurt, and the horse killcth another, it is murder the rider. — 1 H. H. 476. If a person drive his cart m carelessly, and it run over a child in the street, if he have seen the child and yet drive on upon him, it is murder ; but if he saw not the child, yet it is manslaughter ; but if the child had 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 war- (a) .\Uhough such may be the law as laid down by ancient writers, com- mon humanity will prompt officers to act with the greatest possible t'orbear- BDce ; and it must be a very extreme case of necessity that would justify homicide. 1) ■ 'i m M if:! m..h; ¥i y ; !>. i; Wi m m u f* r I 392 ja^omititft* ning 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 improper manner.— I Fast. 262, 263. If the act be unlawful it is murder ; 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 without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony. — 3 Inst. 56. And it is a general rule in case 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 actually commits. — 1 Haw. 74. Homicide by misadventure, though not felony, yet a per- son guilty thereof is not bailable by justices of the peace but must be committed to the assizes. — 1 ffaw. 75. But if he is taken only on a slight suspicion, the justices of the peace may bail him. — 2 Haw. 305. 3. Homicide hy Self-defence. Homicide in a man's own defence is, where one who hath no other possible means of preserving his life from one who combat? with him, on a sudden quarrel, kills the person by whom ho is reduced to such an inevitable necessity. 2. And not only lie, who upon assault, retreats to a wall or some such strait, beyond which he can go no farther, before he kills tin- other, is judged by law to act upon unavoidable necessity ; but also he, who being assaulted in such a manner and in such a place, that he cannot go back without mstnifestly endangcriiii' his life, kills the other without retreating at all. 3. .And not- withstanding, a person who retreats from an assault to the wall, give the other wounds in his retreat, yet, if he give him no mortal one till he get thilhor, and then kill him, he is guilty of homicide se defendendo only. — 1 Hatv. 74. 4. But if the mortal wound was first given, then it is manslaui,'htcr. — Hale's PI. 42. 5. And an officer who kills one who resists him in the execution of his office (a) ; and even a private person that kills one who feloniously assaults him in the high- way, may justify the fact, without ever giving back at all.— 1 Ilatv. 75. 6. But if a person upon malice prepense strike another, and then fly to the wall, and there in his own defence (a) See note at foot of page 391. i. H^otnfcme. 393 kills the other, this is murder. — HaWs PL 42. A person guilty of this offence cannot be bailed by justices of the peace. __1 Haio. 76. But otherwise, if taken only on a ^slight suspicion. — 2 Haw. 105. 4. Manslaughter. By manslaughter it is to be understood — 1. Such killing of a man as happens on a sudden quarrel, or in the commis- sion of an unlawful act without any deliberate intention of doing any mischief at all. — 1 Haw. 76. 2. The difference between murder and manslaughter is, that murder is com- mitted upon malice aforethought^ and manslaughter ivithout malice aforethought, upon a sudden occasion only : as, if two meet together, and striving for the wall the one kill the other, this is manslaughter and/cfor??/ ; 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 manslaughti'r, and no murder; because all that followed was 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 acces- sories to this offence, before the fact, because it must be done ^vithout premeditation. — 1 Haw. 76. But there may be ac- cossovics after the fact. — 8 Inst. 55. The offence being 9. felony is not bailable by justices, but the party must be committed for trial at the assizes. The punishment for this offence, formerly, was burning in the hand and forfeiture of goods and chattels, for which pun- ishment that vof imprisonment for a year and the imposition of a fine was afterwards substituted by the 19 G. III., c, 74. But now, by 4 k 5 V., c. 27, § 7, it is punishable at the discretion of the court with imprisonment at hard labour in the provincial penitentiary for life, or for any term not less than seven yeu.a; or imprisonment in any other prison or place of confinement for any term not exceeding two years, or to pay such fine as the court shall award. Form of Indictment for Manslaughter, 18 V., c. 92. County of | The jurors for our lady tho Ciueen upon tc wit. j their oath presiMit, that A. B. on llie day of in the year of our Lord one tliousand eirjlit hundred and at in the county of did feloniously kill and slay one C. D." 5. Murder. Murder, is when a man of sound memory and of the age of discretion unlawfully killcth another under the king's peace, with malice aforethought, either expressed by tho party or implied by law, so as tho party wounded or hurt die of tho wound or hurt within a year and a day. — SInat. 47. 50 \r:: 'i;. J;; m'^. M:\ ! 't; ff ^.f :iU' 1 I'.'; \f -w. ■t'lV' ?'■ -! , 394 ^omitttft. u- %i V:lli^ I' u fill \i ' I :ir'i km t,p>J t '''*-p i By malice expressed, is meant a deliberate intention of <..o- ing any bodily harm to another, whereunto by law a person is not authorised — 1 ff. H. 451, the evidences of which are — I. 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 provocation ; for in this case the law presumes it to be malicious, and that he is a public enemy of mankind. 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. — H. H. 455, 456, 457. 4. Also where a prisoner dieth by duress of the gaoler, the law implies malice, by rea- son of the crudty. — ^3 Inst. 52. 5. And in general, any formed design of doing mischief may be called malice ; and therefore not such killing only as proceeds from premedita- ted hatred or revenge, but also such as is accompanied with those circumstances that the heart to be perversely wicked is adjudged to be of malice prepense, and consequently mur- der. — 2 Haiv. 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 and aggravating, will excuse him from being guilty of murder who is so far transported thereby, as immediately to attack the person who offends him in such a manner as manifestly endangers his life, without giving him time to put himself upon his guard, if he kills him in pursuance of such an assault, whether the person slain did at all fight in his de- fence or not. — 1 Haw. 82. If two fall out upon a sudden occasion, and agree to ficht in such a field, and each of them ^o and fetch his weapon and the one killeth the other — i\\\i h no malice prepemc] 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— as, where they meet the next day — nay, though it were the same day, if there were such a competent distance of time that in com- mon presumption they had time to deliberate— then it la murder.— 3 Inst. 61 ; \ H. H. 453. And the law so fur abhors all duelling in cold blood, that not only the principal who actually kills the other, but also his seconds, arc guilty of murder, whether they fought or not ; and the seconds of the party slain are likewise guilty, as accessories. — 1 Ilaiv. 82. If a physician or surgeon gives a person medicine witli intent to cure or prevent a disease, and contrary to his ex- pectation it kill the person — this is no homicide.— 1 //. H. i- |@omicf)re. 395 429. But if a woman be with child, and any one give her a potion to destroy the child within her, and it work, and so strongly that it kills the woman — this is murder. — 1 H. H. 430. But if a woman, quick with child, by a potion or otherwise killeth it in her womb ; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child — this is not murder, but a great misprision. If the child be born alive, and then die of the potion, battery or other cause — this is murder. — 3 Inst. 50. Lord Hale gays, that in this case it cannot be legally known whether the child were killed or not ; and that if the child die after it is born and baptised, of the stroke given to the mother, yet it is not homicide. — II. H. 483. And Mr. Dalton says, whether it die within her body or shortly after her delivery, it niaketh no difference. — Dalt. 330. But Mr. Hawkins says, that (in the latter case) it seems clearly to be murder, notwithstanding some opinions to the contrary. — 1 Haw. 80. And if a person counsel or advise a woman to kill her child when it shall be born, and she afterwards kill it in pursuanoe of such advice, he is an accessory to the murder. 1 Haw. 80. And by *3 W. IV. c. 4, § 12, accessories before the fact to any capital offence shall suffer death. They that are present when any man is slain, and do not their best endeavour to apprehend the murderer or man- slayer, shall be fined and imprisoned. — 3 Inst. 53. By 4 & 5 v., c. 27, § 4, sentence of death may be pro- nounced after conviction for murder in the same manner, and the court before which the conviction may be had shall have the same power, in all respects, as after convictions for other capital offences. § 6. And where any person being felon- iously stricken, poisoned or otherwise hurt, upon the sea, or at any place out of this province, shall die thereof in thih province, or being feloniously stricken, &c., in this province, shall die thereof out of this province, every such offence, whether murder or manslaughter, or being accessory before or after the fact, may be tried and punished in the district, county or place in this province in which such death, stroke, poisoning or hurt shall happen. Form of Indictment for 3Iurder, 18 F., e. 92. County of ) The jurors for our lady the Queen upon their to wit. 3 oath present, that A. B., on the day of in the year of our Lord oncUhousand eight hundred and at in the county of did feloniously, wilfully, and of his malice aforethought, kill and murder one C. D. See also title '•*' Execution.'*' 6. Self-murder, k felo-de-se f or felon of himself, is p. person who, being of -m 1'»:|'.;/; \ ('■ '^ ":i\ i-i •1^ ; m r»i 396 ^ovntu. lir I ■- i -:':-!? fM' ilf'Jr lliii 1:1 :i sound mind, and of the age of discretion, voluntary killeth himself.— 3 Inst. 54 ; Iff. H. 411. The offender herein incurs a forfeiture of goods and chatties, but not of lands • for no man can forfeit his land without an attainder by course of law. — 3 Inst. 54. He shall also be buried ignominiously in the highway, with a stake driven through his body. — 4 Bl. 190. This barbarous custom has however been abolished in England by statute 4 G. IV. For forms see post title '■^Indictable Offences.'' HORSES. The stealing of a horse is felony at common law, and by the 4 & 5 v., c. 25, § 29, is punishable at the discretion of the court by imprisonment at hard labour in the provincial penitentiary for any term not exceeding fourteen years nor less than (a) seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. By 2 & 3 P. & M., c. 7, and 31 E., c. 12, the keeper of 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, and shall appoint one or more persons to take toll there, and to keep the same place 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 time of the said fair or market openly ridden, led, walked, driven, or kept stand- ing, for one hour together at least, between ten of the dock and sunset, in the open 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 barg tin shall come together, and bring the horse to the open place appointed for the toll-taker, or for the book-keeper, where no toll is due. § 5. Nor un- less such toll-taker, or {where no toll is paid) the book-keeper, or chief officer of the fair or market, shall take upon him perfect knowledge of the seller, and of his true christian name and surname and place of abode, and shall enter all the same down in a book to be kept for that purpose, or else that the seller shall bring to the toll-taker, or other oilicer aforesaid, one credible person that shall testify that he knoweth the seller, and his true qaine, surname, mystery and dwelling place, of him that so avoucheth his knowledge. § 6. Nor unless he also cause to be entered the true price. § 7. And also the colour, and one special mark at least. (fl) Reduced to three years by thf U V., c. 6, ^ 2. PM H^omt of eovnttfon. 397 § 8. And th« buyer shall pay the toll if any is due, if not, then Id. for the entry. § 9. Which done, the person enter- ing the same shall give to the buyer, requiring, and paying 2d. for the same, a note in writing of all the contents of such entry, subscribed with his hand. § 10. Every person offending in any of the premises shall forfeit £5 ; half to the king and half to him that shall sue before the justices in sessions, 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 afterwards bo sold in open market, and the sale shall be in conformity with the above provisions, yet, nevertheless, such sale, in six months after the felony done, shall not take away the owner's property, so as claim be made in six months, where the horse shall be found, before the mayor, if in a town cor- porate, or else before a justice near the place where found, and so that proof be made before such magistrate 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 mon«^hs next before such claim ; but the party from whom the same was stolen may at all times after, not- withstanding 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. Where a horse was stolen from the plaintiff and bought by the defendant at public auction, but not in market overt, and the plaintiff afterwards seeing the horse took possession of it, and the defendant immediately retook it ; held that the plaintiff had a right to retake it. — Botvman v. Yielding, Michs. 3 v., Cameron's Digest, p. 82. See also title " Cattle Running at large.'' For forms see ji;08i title ^'^ Indictable Offences." HOUSE BREAKING. See '■^Burglary." HOUSE OF CORRECTION. *By the 50 G. III., c. 5, it is enacted, that until houses of correction 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 tc a house of correction, shall be committed to the said common gaols ; any law or usage to the contrary notwithstanding. By 12 v., c. 81, § 41, the municipality of each county is 11 I :;'!-l|. 398 fl^onnt of iEntifu0tts« •f ... . >% ...... .,.„ J" . rvn/8 authorised to make b;^-law3 for the erection, preservation improvement or repair of a shire-hall, court-house, gaol house of correction, S^c. §68. The gaol, court-house, and house of correction of the county within the limits or on the borders of which every such town shall be situate, shall bo and continue to be the gaol, court house and house of correction of such town, as well as of such county : and the sheriff, gaoler and keeper of such county gaol and house of correction, shall be bound to receive and safely keep until duly discharged, all persons committed there- to by any competent power or authority of such town, § 107 authorises the common council of any city also to make by-laws for {inter alia) establishing and providing for a house of correction, &c. HOUSE OF INDUSTRY. *By stat. 7 W. IV., c. 24, § 1, it is enacted that at the courtof general quarter sessions in each district, after the presentment of three successive grand juries recommending the same, it shall be the duty of the justices of the said district to procure plans and estimates for the erection of suitable buildings for the reception and employment of the poor and indigent, and of the idle and dissolute, and to procure and purchase a suitable site whereon to erect the same, and to contract for the erec- tion thereof, provided the expense shall not exceed £1000 • and also to appoint five inspectors, who shall have the inspection and government of the said house, with full power to appoint a master, mistress, and needful assistance for the immediate care and oversight of the persons received into or employed in that house ; which inspectors, once every month, and at such other times as occasions may require, shall meet for the purpose of determining the best method of discharg- ing the duties of their oflSce, and at such meeting shall have power to make orders and regulations for the government of said house, and to alter the same from time to time as expe- dient, and all such by-laws for the ordering and regulating' the said house, and the affairs thereof, as may be necessary, the same not being repugnant to the laws of the land. § 8. Any two justices, or inspectors, may commit to such house by writing under their hands and seals, to be employed and governed according to the rules, regulations, and orders of said house, any person or persons residing in the district, declared liable by this act to be sent thither. § 4. The persons so liable shall be poor and indigent persons, incapa- ble of supporting themselves ; all persons able of body to work and without any means of maintaining themselves, who refuse or neglect so to do ; all persons living a lewd, KUegftctnate enflTrten. 399 dissolute, vagrant life, or exercising no ordinary calling or lawful business, sufficient to gain or procure an honest living ; all such as spend their time and property in public houses, to the neglect of their lawful calling. § 6. Inspec- tors to keep an account of the charges of erecting, keeping, upholding and maintaining such house, together with an account of all materials found and furnished, and the names of the persons received into such house, as well as those discharged therefrom, and of the earnings ; one copy of which shall be presented to the justices of the peace of each district once in every year, or oftener when required by such justices in general quarter sessions assembled, and one copy to each branch of the legislature. § 6. All persons so com- mitted, if fit and able, shall be kept diligently employed in labour during his or her continuance there ; and in case the person so committed shall be idle, and not perform such reasonable task or labour as shall be assigned, or shall be stubborn, disobedient or disorderly, he, she, or they shall be punished according to the rules and regulations made for (Toverning and punishing persons there committed. By 12 V. c. 80, so much of the 1st § of the *7 W. IV., c. i4, as vests any powers granted thereby in the grand juries or magistrates in (juarter sessions, or limits the expenditure, and the whole of the 2nd § of said act is repealed. By 12 v., c. 81, § 41, the municipal council of the county (a) is empowered to make by-laws for the erection, preservation, improvement or repair of a house of industry, and for the appointment of inspectors of the same, and other oflScers, and For the appointment of the inspectors of the county house of industry, and of such and so many officers as may be Jieces- sary for carrying into effect any of the provisions of this act, or of any other act of the legisUiture of the province of L'pper Canada, the erection or maintenance of such houses of indus- try, or of any by-!a\v or by-laws of the municipal council of such county respecting tiie same. ILLEGITIMATE CHILDREN. By *7 W. IV., c. 8, § 9, any person who shall furnish food, clothing, lodging or other necessaries, to any child who shall be born after the passing of this act not in lawful wed- lock, shall be entitled to maintain an action for the value thereof against the father of such illegitimate child ; pro- vided such illegitimate child shall have been a minor at the (a) g 1U7 of this act also authorises the commoD council of any city to establish aud provide for a house of industry. m *■■ V'fl ;■) 4:!y .tr»f „. ■■^^\ 1 M w ft ' !••'*» fi. ";'l l: -1" |, * .1 'i '■ ! 400 Kn)i(eentj>. I.}!,' ■ 'fr-S.' ■ ■ ' [If,] ,|:i:;;.l! J j. »■ !^''!f :5' ;^' 1.,' , r: ]i^"iip ill''; . i;«:liiiJf time of such necessaries found, and shall not have heen then residing with his or her reputed father, and maintained by him as a member of his family; and provided also, that where the person suing for the value of such necessaries shall be the mother of such child, or any person to whom the mother has become accountable for such necessaries then the fact of the defendant being the father of such child must be proved by other testimony than that of the mother- and provided also, that no action shall be sustained under this act unless it shall be shown upon the trial thereof, that while the mother of such child was pregnant, or within six months after the birth of her child, she did voluntarily make an affidavit in writing, before some one of his Majesty's justices of the peace for the district in which she shall be residing, declaring that the person who may be afterwards charged in such action is really the father of such child, and unless she has deposited such affidavit, within the time afore- said, in the office of the clerk of the peace, there to remain filed. See also titles ^'■Bastard" — "Concealing Birth." INDECENCY. All open and gross indecency is a misdemeanor at com- mon law, and is indictable, not only as a nuisance to the rest of the community, but being injurious to public morals. —2 Str, 790 ; 4 Bl. Com. 65. It is an indictable offence for a man to undress himself on the beach and bathe himself near inhabited houses. — R. v. Crumden, 2 Camp. 89. This offence is punishable by fine or imprisonment, or both. Indictment against a man, for publicly exposing his naked person. {Archbold.) Province of Canada. County of ) Tiie jurors of our lady the Q.ueen upon ilieir to wit. 3 oalh present, that J. S., late of the townsiiip of , in the county of , labourer, being a scanduioiis and evil disposed person, and devising, contriving and intcndinif the morals of divers liege subjects of our lady the Uueen to debauch and corrupt, on the day of , in the year of the reir^n of our sovereign lady Victoria, at the township aforesaid, on a certain public and common highway there situate, in the view of divers liege subjects of our said lady the Clueen, then and there being, and within sight and view of divers other lic^e subjects, through and on the said highway, then and there jiassing 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 KnUfanfii* 401 the said T. 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 subjects of our lady the Glueen, to the manifest cor- ruption of their morals, in contempt of our said lady the Glueen and her laws, to the evil example of all others in the like case offending, and agninst the peace of our lady the Glueen, her crown and dignity. INDIANS. By imperial statute 43 G. III., c. 138, all offences, com- mitted within any of the Indian territories, not within the limits of this province, or of the United States, shall be tried in the same manner, and subject to the same punish- ment as if the same had been committed within this province. {a) *15y 3 v., c. 13, § 1, it shall not be lawful for any persons to sell, barter, exchange or give to any Indian man, woman or child, within this province, any kind of spirituous liquors in any manner or way, or to cause or procure the same to be done for any purpose whatever, (§ 2) under a penalty not exceeding £'20, to be recovered before any one justice upon the testimony of one or more credible witnesses, one moiety to bo paid to the informer and the other moiety to bo collected in the same manner as fines and penalties collected under the act for the summary punishment of petty trespasses, {b) and to be applied for the improvement of the roads through the section of the country where the offence is committed. No penalty to be incurred by the furnishing to any Indian any spirituous liquors by or under the direc- tion of a medical man, in case of sickness. By 13 & 14 v., c. 74, § 3. No confession of judgment shall be taken from any Indian, unless such Indian be seised In fee simple in his own right of real estate, and shall be assessed in respect thereof to X25 or upwards. § 4. No taxes or assessments to be levied on Indian lands. § 5. Statute labour by Indians to be performed on Indian lands only. § 0. If any person shall sell, barter, exchange or give any spirituous liquors to any Indian man, woman or child, or cause the same to be done, he shall be guilty of misdemeanor, and, on conviction, be fined at the discretion of the court not exceeding £■% and shall also forfeit £1 5s. for every such offence, to be recovered in any court of com- petent jurisdiction with costs, one moiety to go to the infor- (()) Quaere — whetlier tliia statute is not superseded by the next statute cited, 18 & 14 V,, c. 74, which contains similar prohibitions, but reduces the mazimtim of the penalty to £5, and makes tiie offence a misdemeanor and punishable by indictment, and not by summary conviction. (6) *4W., IV., c. 4. 51 I S'il ;lll k-;' 111 ^< l I iM f\ i : \ M- ■in r \ W I * ' ' if i! :' .»^'?'' ^KI;LI'' I m. 402 KnUfati ILanTio* mer, the other to her Majesty, for the benefit of the Indians. No such penalty to be incurred for liquor furnished to any Indian in case of sickness, either by or under medical direc- tion. § 7. Pawn not to be taken from Indians for liquor : such pawn if taken may be recovered by the Indian with costs in any court of competent jurisdiction. § 8. Indian presents or property acquired in a certain way not liable to distress or seizure for any matter or cause whatsoever. By 20 v., c. 26, entitled an act to encourage the gradual civilization of the Indian tribes in this province, and to amend the laws respecting Indi.ins, various provisions are therein made for effectuating the purposes of the act, to which the reader feeling interested on the subject, is re- ferred. INDIAN LANDS. By *2 v., c. 15, reciting, whereas the lands appropriated for the residence of certain Indian tribes io this province, as well as the unsurveyed lands, and lands of the crown uii- granted and not under location, or sold or held by virtue of any lease or license of occupation, have from time to time been taken possession of by persons having no lawful ri 5. Commissioners may order timber cut down or stone quarried, but not removed, to be seized and sold accor- ding to instructions from the Lieutenant-Governor. § 6. May summon witnesses. § 7. Moneys and fines collected under this act to be paid to the Receiver-General for the benefit of the Indians. § 8. The accused party to be first summoned. § 9. Sheriffs and gaolers bound to execute com- missioners' warrants ^ 10. Commissioners entitled to the same protection as justices of the peace. § 11. Appeal to the Vice-Chancellor. By 13 & 14 v., c. 74, § 1. "No purchase or contract for the sale of land, made of or with Indians, shall be valid, unless under government authority. § 2. Any person with- out such authority or consent, who shall purchase or lease any lands from Indians, or make any contract with them for or concerning any such lands, or shall in any manner give, sell, demise or convey or otherwise dispose of any such lands or any interest therein, or offer to do so, or shall enter on or take possession of or settle on any such lands, under colour of any right or interest in consequence of any such purchase or contract, unless with such consent as aforesaid, shall be deemed guilty of a misdemeanor, and, on conviction, liable to a fine of £200, and further fine and punishment, at the discretion of the court. § 1). Commissioners appointed under this act, and super- intendents to be justices of the peace within the county where resident or employed. § 10. None but Indians or those intermarried with them to reside on Indian lands : and if any person or persons other than Indians or those inter- married with them, shall, without license of the said com- missioners, settle, reside upon or occupy any such lands, roads or allowances for roads, it shall be the duty of the commissioners upon complaint made, and due proof, to issue their or his warrant, directed to the sheriff of the county, commanding him to remove such settlers. The above and the next following provision to extend to such Indian lands .'•'r 't \y. • (•'••i. ^^ ^,1 ^u i[i 11 ■; !■ K !i ii t 'I I mi ■■ p m'l h-4 i^i 404 KnlKctmrnt. only as the Governor by proclamation shall designate. § 11. If any person so removed shall return and settle, the com- missioner shall by Avarrant to the sheriff command him or them to bo arrested and committed to the common gaol, for a period not exceeding 30 days. § 12. Any person without license cutting any timber on such Indian lands, or remov- ing any stone or soil, shall forfeit and pay Xf) for everj' tree, and for every sapling, shrub, underwood or timber under the value of 5s., the sum of one pound; if over Ss., then the sum of £k> ; and for removing any stone or soil £5; to be imposed and recovered by the commissioners by distress and sale of the goods of the party fined, or the said commissioners may without proceeding by distress and sale, upon the non-pay- ment of the fine, order the party to be imprisoned in the common gaol for a pc-.od not exceeding thirtt/ days, when the fine shall not exceed <£5, or three calendar months when it does. § 13. If the offenders' names are unknown, they may be described in any order, warrant, &c., in any manner by which he, she or they may be capable of beif'.g identified. § 14. Sheriffs and gaolers, &c., bound to obey process from the commissioners, and to aid and assist on requisition. INDICTMENT. (a) The venue must appear in the margin, and be laid in the county where the offence was committed. The exceptions to this rule are provided for by the 4 & 5 V., c. 24, § 40, which enacts that where any felony or misdemeanor shall be commit- ted on the boundary or boundaries of two or more districts or counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall bo begun in one district or county and completed in another, the same may be tried in any of the said districts or counties, as if wholly committed therein. § 41. Offences committed on any person or in respect of any property in or upon any coach, wa;:gon, cart or other carriage employed in any journey, or on board any vessel employed in any voyage or journey upon any navigable river, canal or ii.land navigation, may be prosecuted in any district or county which shall have been passed in the course of such journey or voyage ; and where the side, centre or other part of any such river, canal or navigation shall con- stitute the boundary of any two districts or couiitics, such prosecution may be had in either of such districts or counties. Every indictment must have a precise and sufficient cer- tainty, otherwise the defendant may demur, move in arrest (a) See also Criminal Law Amendment Act, 18 V., c. 02. Ktinfctrntnt* 405 of judgment, or bring a writ of error (a). — R. v. Mason, 2 y. J{. /381. It should state the facts, circumstances, and intent with which the act is committed, with the time and place, without any repugnancy, or uncertainty, and in terms direct and positive. No part of the indictment must contain any abbreviation, or express any number or date in figures. J2 Hale, 110 ; 4 G. II., c. 2G ; G (7. II., c. 0. The only exception is the case of forgery, libel, and sending a threat- ning letter, in either of these cases a fac-similc (ft) of the in- strument. — li' V. Blason, 1 East. 180. The christian and surname of the defendant must be stated, with his addition, state and degree, and the place where he is known. If it bo doubtful which of two names is his real surname, he may bo described with an alias dictus, as Georf/e Jackson, otherwise called George Johnson. Where the prisoner's name is not known, and he refuses to disciver it, he may be then described as a person whose name is to the jurors unknown, but who is personally brought before the jurors by the keeper of the prisoner. — Rnss. .f Uy. The addition should be given after the first name, and not after the alias dictus. — 2 Inst. 01)9 ; though this defect is cured by the defendant pleading to the indictment. — 1 Leach, 420. In indictments for felony, if the property be stolen out of possession of a bailee, it may be (described as the property either of the bailor or bailee — 2 Hale, 181 ; therefore g oda entrusted to a carrier, a tailor, or a laundress, may be laid as the property of the person to whom they are so entrusted or of the real owner, at the option of the prosecutor. — 2 llak, 181 ; 1 Leach, 350. Clothes or other necessaries furnished by a father to his child may be laid to be the property of the father, if the child be of tender age — 2 East. F. 0. 054 ; but where the child 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 ; and the goods of a deceased person must be laid as the property of his executor or administrator ; of a corporation, as the property of the corporation in their corporate name. — 2 East. P. 0. 1059. And by 4 & 5 V., c. 24, § 42, in indictments it shall bo sufficient to state partnership property to belong to one or more of the partners. § 4-5. And with respect to any church or place of religious worship, bridge, or other public build- ing, canal, &c., or any subdivision thereof, it shall not be '■ijf !N,t .'! .« i li *;Cv ■A\yW; 1 't/il* Pi 1 < a) But see post Criminal Law Amcmlmcnt Act, 18 V., c. 'J2. A) Unnecessary now under the above statute. Til ;i iiJf'S 114 \'H^ j.i^i' -\t: ^rMr; H.i- /r m H' ,;. jn-:,., i^ 1 fi ' :' 'if !i:p.i:^^'|''^ m:h. %■ r,|| 1 [iHMII ft 406 KnTifttment necossary to state the same as thv. property of any person. § 44. Property under turnpike trusts may be laid as the pro- perty of the trustees or commissioners, without naminn; them. By 4 & 5 v., c. 25, § 68, oifenders may be indicted where the property shall be found, although stolen elsewhere, and so with regard to receivers. Where the party injured is unknown, or does not come for- ward, he may be described as " a certain person to the jnrors unknown." — 2 ffale, 181; but if it appear in evidence that his name is known, the defendant will be acquitted. — 2 Uast P. a 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 committed ; the year of the king's reign is usually stated but the year of our Lord is equally good. A mistake in the day and year will not in general vitiate the indictment — \Salk. 287 ; but upon some occasions the time is material, as in the case of murder, when the indictment must lay the time of the death within a year and a day of the mortal stroke.— Fost. 240 ; 4 Bl. Com. 306. So in an indictment 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 tl;o time ; the dates of all instruments must likewise be truly stated, the place at which the alleged offence was committed must also be stated ; but though the place should be laid with certainty in statement, it is not necessary to he laid according to the truth, and a variance in this respect will not be material, provided the place proved be Avitliin the district, except where the place stated is matter of looal de- scription, as in describing the situation of a house in the case of burfflari/ or arson. An indictment for stopping up the king's highway must shew what particular part was stopped up. — Show. 8S1). hi larceny of written instruments it is sufficient to dcrcrihe them in a general manner, as "one bank note for the pay- ment of £5, and of the value of .£5."— 2 Fast. P. C. liO'2. 777. And in an indictment for cmbe:izling several bank notes, it is sufficient to describe them as " nine bank note?, for the payment of divers sums of money, amounting in the whole to .£!V' without specifying the amount of each parti- cular note, (a) — R. v. Johnson, 8 31. (f S. 580. 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 kinds of (a) But now ))y 18 V., c 02, ^ , it is suflBcient to describe a bank note as "moucy " without auy specific description. Kn^Cctment 407 ■■m and ay inu«t HO. In the pav- a i)02, by reason of any dilatory plea, but may be amended insrantcr. § 40. Indictments not to be vitiated after verdict, or other- wise, for omission of the words "as appears by the record," or of the words " with force and arms," "against the peace," i^ .* Kittrfctmrnt i 409 nor for the insertion of the words '' against tht ^orra of the statute," instead of "statutes," or vice versa : nor for the wrong designation of any party mentioned in the indictment ; nor for omitting to state the time when offence committed, in «ny ^'"^^^ where the time is not of the essence of the offence, nor for stating the time imperfectly ; nor for stating the offence to liave been committed on a day subsequent to the finding of the indictment, or on an impossible day, nor for defect in the anterior proceedings. And by the 12 V.. c. 21, § 1, in an indictment for steal- in(T, a count may be inserted for receiving, and vice versa ; and the prosecutor shall not be put to his election, but the juiy may find a verdict on either count ; and if an indict- ment be preferred against two or more persons, the jury may find all or any of such persons guilty, cither of stealing or receiving; or find one or more guilty of stealing, and the other or others of receiving. § 2. The Court of Queen's Bench, or of Oyer and Terminer and General Gaol Delivery, niav cause an indictment to bo amended in respect of any varwince between a written or printed matter produced in evidence, and the recital thereof in the indictment. 8oc also 10 & 11 V. c. 0, § lU; 18 V., c. 5^2, § 7, S— sub- ject, For(jeri( ; 12 V. c. 20, § 3 — subject, Ars>>v. By the Criminal Law Amendment Act, 18 V., c. 92, various provisions are made on the subject of indictments. Under ^ 1, the court may order any indictment to be amended upon trial, when any variance appears between the statement in the indictment and the evidence not material to the merits of the case, and the amendment is not prejudicial to the defendant. § 5. Indictments except ia cases of high- treason and murder need not be on parchment. § G. In indict- ments for murder or manslaughter, the particular manner in wliich the death was caused need not be stated. § 7. In indict- ments for forging, uttering, stealing, embezzling, destroying or concealing, or obtaining by false pretences, any instru- ment, a copy or fac simile thereof need not be set out. § 8. And so for engraving or making any instrument, matter, or thing, or using or having the unlawful possession of any phite or other material upon which the same has been engraved. § 9. And in all other cases, a general designa- tion without a fac simile copy will be sufficient. § 10. In indictments for forging, &c., it shall be sufficient to allege "intent to defraud," without naming any particular person. § 12. And in any indictment for obtaining or attempting to obtain property by false pretences, it shall be sufficient to state that the defendant did so by false pretences, 52 M 1 ^'ih,!' I": \ 1^ :''i;;'|K-.i^ ■■ i 1-w ii:fri i' * i[ i :'. '•ft 410 KnUfttmrnt ii. : .! 'lU V h,.:i hi ii^ithout stating further particulars. § 18. Any number of accessories to any felony, or receiving, may be charged with the substantive felony, notwithstanding the principal felon shall not be included in the indictment. § 20. In any indictment relating to money or bank notes, it shall be suffi. cient to describe both as "money." § 21. In indictments for perjury it shall be suflBcient to set forth the substance of the oflence, by what court, or before whom the oath, &c., was taken, without setting forth the whole document. § 24. No venue need be stated in the body of an indictment. § 25. Matters unnecessary to be proved need not be averred. § 26. Every objection to an indictment for any formal defects shall be by demurrer, or motion to quash, before the jury are sworn : and the court, if it think proper, may immediately order the indictment to be amended. § 46. Provides that indictments may be in the forms annexed to the act. The forms given are for "simple larceny," "false pretences," "embezzlement," "stealing money," "murder," "man- slaughter," "perjury," "subornation of perjury." Of the Finding by the Grand Jury. The names of all witnesses who are to be examined before the grand jury, should be indorsed on the bill of indictment, and formerly it wns necessary that the witnesses should be previously sworn by the officer of the court. But now by 20 v., c. 4, witnesses need not be sworn in open court, but may be sworn before the grand jury, their names beini' first endorsed on the bill of indictment. The evidence is gone through by the grand jury in the order in which the names of the witnesses appear on the back of the bill ; and if a majority of the grand jury, consist- ing of twelve at least, agree in thinking that there is sufficient evidence to put the defendant on his trial, they endorse on the bill of indictment "a true bill ;" but if the majority think there is not sufficient evidence, or if the majority (if a number less than twelve) should even think there is, then the words '^no biU" are endorsed. The bill of indictment is then returned publicly into court by the foreman of the grand jury ; and if the indictment is found (for it is previously in law only termed a bill), the prisoner is arraigned in duo 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 sifted by the judge and jury. They are to Kntrfrttnent 411 hear evidence only on behalf of the prosecution ; for the finding of an indictment is merely in the nature of an inquiry or accusation, which is afterwards to be tried and determined : and their duty in this respect, is solely to enquire upon their oaths, whether there be sufl&cient cause to call upon the party to answer it ; they are therefore not to try the prisoner, but merely to determine whether the evidence aaainst him is of such a nature as to to render necessary a more formal investigation into the fact of his innocence or his guilt '■> ^^^ they ought, nevertheless, to be thoroughly per- suaded of the truth of the indictment, as far as their evidence goes, and not to rest satisfied merely with remote probabilities, a doctrine that Blackstone rightly observes might be applied to very oppressive purposes. — 4 Bl. Com. 303. Where there is only one count in the indictment, the grand jury cannot find "a true hilV as to part, and " not a true h'ilV as to the other part; for they ought to find the whole or nothing. — 1 Haw. c. 04, § 40 ; 2 Id. c. 25, § 2. But where the indictment contains two counts, as one for a riot, and one for an assault, they may then return " a true Itill" as to one count, and i(/noramus as to the other. — Jt. v. fieldhouse, Coivp. 335. But where the evidence bears upon all the counts, and the oftence is only stated in a different form, it is better to find the whole bill, than to elect one count and ignore the others, since it is possible that the prosecution upon trial might fail upon the one so elected, and mii^ht have succeeded upon one of those ignored. When a bin is thrown out by the grand jury, it cannot again be pre- ferred 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 at the same time for the same offence, before the grand jury, that is to say, one bill treating the offence as a felony, and the other as a mishi'i- 1 •r ■, 1 ■I 1 1 M( 4.,> : j '■ 412 )^niru0trfal iFatms* And by *6 W. IV., c. 44, § 2, the prisoner is entitled to a copy of the indictment whether for felony, or misdemeanor on payment of certain charges, viz., Od. per folio of 100 words. INDICTABLE OFFENCES. All felonies and misdemeanors, whether at common law or by statute, arc indictable offences, and as such triable at the sessions or the assizes according to the enormity of the of- fence. All felonies, such as murder, manslaughter, rape burglary, arson and the like can only be tried at the assizes. But simple larcenies and misdemeanors (perjury excopted) may be tried at the sessions, or in the recorder's court of any city wliere the offence is committed. With respect to the forms and mode of procedure upon indictable offences, see ^'Indictable Offences,'' under the head of ^^ Justices of the Peace." INDIGENT DEBTORS. *By 11 G. IV., c. 4, it is enacted, that it shall nut ho lavv^?' for the sheriff or other officer to seize in execution the necessary wearing apparel of the debtor or debtors, or his, her or their family ; nor the bed or bedding in actual use by the family. By 20 v., c. 57, § 23, a similar provision is niado, with the addition of " one stove and cooking utensils, also tools and implements of trade to the value of .£15. By the 11) V., c. 43, § 308, the wearing apparel of any debtor in execution, and that of his family, their beds and bedding, household utensils to the value of XIO in the whole and his tools and implements of trade to the like amount, are protected from subsequent execution. INDUSTRIAL FARMS. By 12 v., c. 81, § 139, the municij'al corporation of any town or city is authorised to purchase and hold landed pro- perty beyond the limits of such municipality, for the purpose of an industrial farm for such town or city ; which farm, with all the buildings, kc, shall, with regard to jurisdiction only, be deemed and taken to be within such limits and ju- risdiction. § 140. And the mayor, recorder, police magis- trate, or any two aldernion or justices of the peace for only such town or city, may commit to hard labour at, or send to such industrial farm, under such regulations as shall he es- tablished, any description of persons as may, by the by-hnvs of such town or city, be declared expedient or necessary. Ktiformatfon. 413 INFANTS. An infant (or minor) in law, is any one who is under the aire of 21 years. But with respect to criminal offences, the li^w considers the age of 14 years the age of discretion, and that any one above that age has a sufficient knowledge of rjffht and wrong to be criminally answerable for his actions. \n infant under 14, is presumed by law to be incapable of committing a rape. — 1 Wale, 630. With respect to the competency of an infant to be a witness, the old rule was, that none could be admitted under 9 years of age ; but a more reasonable rule has since been adopted ; and it is now settled that their admissibility depends on the understanding of the child, and the notion it has of the danger and impiety of falsehood, and that this must be collected from the child's answers to questions propounded by the court. — 1 Hast. P. l\ 442 : 1 Wale, 302. Bv 12 v., c. 72, the real estate of any infant may be (iold'by order of the Court of Chancery. By 18 v., c. 126, § 1, any of the superior couns of law or equity, or any judge thereof upon the petition of the mother of any infant, in the sole custody or control of the father, or of any person by his authority, or of any guardian may make order for the access of the petitioner to such infant, at such times and under such regulations as such court or judtTC shall think convenient and just; and if such infant be under the age of twelve years, to make order for the delivery of such infant to the petitioner, to remain in her care and custody until such infant shall attain that ago, subject to such regulations as the court or judge shall direct ; and also to make order for the maintenance of such infant by the father, or out of the infant's estate, as such court or judge shall think just and reasonable. § 4. No such order to be made in favour of any mother against whom adultery shall be established by judgment in an action for criminal conver- sation at tlie suit of her husband. Sec also ante title " Guardians." INFORMATION An information, in its confined sense, is a complaint exhi- bited before one or more justices of the peace, upon oath or otherwise, which the defendant is summoned to answer, or upon which a warrant issues to apprehend him : in its more enlarged and comprehensive sense, it is an accusation or eomplaint exhibited against a person for some criminal of- fence, either against the king or against a private person, m >•' '518 a, Vi- ', \ «l VfJI 'i t^ *,- ! :i ^i' :¥ m :.r-i f- ; ■I fpn 414 Knformiitfom ii ■ mi iLiftllv which, from its enormity, the public good requires to bo im- mediately restrained ; and it differs only from an indictment in this particular, viz., that the latter is an accusation found- ed on the oath of twelve men, whereas, an information is only an allegation of the officer who exhibits it. Inforrat'tions at the suit of the king are filed by the attor- ney general, ex-officio, and without any previous application to the court for a rule to file the same, and these are pro- perly the king's own suits. But in those at the relation of private persons, the king is only the nominal prosecutor, and none such could bo filed without a rule on the person com- plained of, to shew cause to the contrary ; which rule is never granted but upon motion made in open court, and an affidavit of the facts in relation to the charge of complaint. When justices of the peace act uprightly, though they mis- take the law, the court will not grant an information against them — 1 T. R. 053 ; but the party will be left to the ordi- nary remedy by indictment or action ; nor for an improper conviction, unless the party complaining make an exculpatory affidavit, denying the charge. — 3 T. It. 388. Information Avill be granted against a justice, for convict- ing a person without a previous summons. — Str.^ 077. A criminal information may be moved for against magis- trates, for misconduct in their office, in the second term after offence commited, there being no assize intervening — 13 E. R. 270 ; but the application must be made sufficientlv earlv in the second term to give the defendants an opportunity of shewing cause against it in the same term. — 13 E. 322. And the court will grant a rule nisi for a criminal iTiforniatiou against a justice, for malpractices during the term ; but not for misconduct before the term. — 7 T. R. 80. Compounding informations, on penal statutes, is an ofTence punishable by 18 Eliz. c. 5, which enacts, that any person informing under pretence of any penal law, who shall make any composition without leave of the court, or take anv money or promise from the defendant to excuse him, shall forfeit £10, and shall stand two hours in the pillory, and be disabled in future to sue on any popular or penal statute.— 2 Raw., P. 0. c. 20. By the Summanj Convictions Act 10 V., c. 178, § 0, it is enacted that in all cases of complaint upon which a justice or jiistices make an order for the payment of money or other- wise, such complaint shall be in writing and on oath, unless otherwise enacted by any statute upon which complaint is framed. § 7. Any variance between the information and evidence j!^' -■ mnn anti l^nn^mttptvn. 415 as to the place or act charged shall not be material, provided the offence is proved to have been committed within the jurisdiction of the justice ; and if any variance between the information and evidence shall appear to the justice present and acting at the hearing to be such that the party charged may have been deceived or misled, he may adjourn the hear- ing upon such terms as ho may think fit, and in the meantime commit or bail the defendant. § 9. Every complaint upon which a justice shall be au- thorised by law to make an order, and every information for every offence punishable by summary conviction (unless except by some particular act) shall be laid on oath ; and in all cases where the justice or justices receiving the same shall issue a warrant in the first instance ngainst the defendant : and in every case where a warrant shall be issued in }.he first instance, the matter of such information shall be substantiated by the oath or affirmation of the informant, or by some witness or witnesses on his behalf before any such warrant shall be issued: and shall be for one matter of complaint only and not for two or more matters of complaint, and for one offence only, and not two or more offences, and such complaint or information may be made by the complainant in person, or by his counsel or attorney. § 10. In all cases where no time is limited for making such complaint in the act relating thereto, it shall be made within nix calendar months after the offence committe v., c. 120, (explaining and and amending the last act.) § 2. Municipal' ics are declared to have authority under this act to make by-laws for ])reventing the keeping of inns, &c., by persons not duly licensed, and for imposing innaltics for contravention. § 4. Such penalties to be re- coverable under the 7 sec. 'H) W. IV., c. 4. By 13 & 14 v., c. 27, where any person shall come to his death while in a state of intoxication or drunkenness from liquor drunk in any inn or tavern, with the permission or sutrerance of the keeper thereof, by committing suicide, or by drowning, or perisliing from cold, or any otlier accident, such inn or tavern keeper shall be guilty of a misdemeanor and liable to a Hne not less than £2o nor exceeding £100, and imprisonment not less than two, nor more than six months. Tlio line to be paid to the legal representatives of the deceased. By K) v., c. 184, § 5, enacted thai all sums of money payable for licenses to keep houses of public entertainment, or other licenses, under by-laws made by the municipal council of municipalities in L'pper Canada under the authority of the 13 & 14 v., c. 1)5, and any sum payable on such licenses umlcr the imperial act 14 G. III., c. 88, shall be payable to anil collected and received by such municipal officers as the council of such municipalities respectively shall appoint to receive the same, and such licenses shall be issued by such municipal officers as the said council shall appoint respectively to issue the same : and any license to keep a house of public entertainment and to retail wines and spirituous liquors therein, issued in tlio manner and form, and by the municipal officer prescribed and appointed by by-law of the municipality in which the same shall be granted, shall bo taken and held to be a license for the purpose of the said imperial act, and the duty imposed by the said act shall be payable thereon. See also '■'' Inspectors of Taverns^'' '■''Spirituous Liquors." ■, :' I Al! til i« 1 ',11 420 Kiifitane IBtutitntt. mu mm ^ ■ .Mm '! ' Jl INOCULATION. By 16 v., c. 170, § 1, enacted that any person who shall produce or attempt to produce by inoculation with variolous matter or by wilful exposure to variolous matter, or to any matter, or thing impregnated with variolous matter, or wil- fully by any other means whatsoever the disease of small pox in any person in this province shall be liable to be proceeded against summarily before any two justices, and upon conviction be imprisoned for any term not exceeding one year. § 2. Any licensed medical practitioner convicted of an offence against this act, shall forfeit his license, and be liable to the same penalty as unqualified practitioners in the event of his practising : provided always, that after the term of imprisonment, such party may be again licensed by the Governor. INSANE DESTITUTE. *By 11 G. IV., c. 20, § 2, the grand jury of the Ilonio District, at the next ensuing quarter sessions, are authorised to make a presentment to the court of the sum to be allowed for maintenance and support of insane persons in the Homo District, expended previously to such quarter sessions : also, such sums as they may think necessary for niaintainin;:; insane destitute persons for the year next ending said sessions ; such presentment to be made yearly, and a detailed account of expenditure for the year previous laid before the grand jury. § 3. The same to be paid by the treasurer of the district, by warrant from the chairman of the quarter sessions. Tiiis act was extended to all the districts by *3 \V. IV., c. 45. Both are temporary acts, and are continued by 20 V., c. IG. INSANE CllIMINALS. By 14 & 15 v., c. 88, § 1, upon the acquittal of any person on the ground of insanity, the jury shall find speci- ally wheth(!r the party was insane at the time of comniitting the offence, and whetiier acquitted by them on that grouii(l. In such case the court shall order such person to bo kept in strict custody, until her Majesty's pleasure be known : and the Governor may give such order for his safe custody as ho shall think fit. § 2. Jf any person indicted shall be insane, and upon arraignment be found so by a jury lawfully cm- pannelled for that purpose, or if upon trial, sucii person shall appear to the jury to be insane, the court may order such finding to be recorded, and the party kept in strict custody until her Majesty's pleasure be known. And if any KHSollient I9(!itor0* 421 person be brought up before the court to be discharged for \vant of prosecution, and shall appear to be insane, the court may order a jury to be empannelled to try the sanity of such person. And if the jury find such person to be insane, the court may order him to be kept in strict custody until her Majesty's pleasure be known. And in all cases of such insanity the Governor may give direction for the safe custody of such person. S 4. If any person, while imprisoned under any sentence of death, transportation, or imprisonment, or under a charge of any offence, or for not finding bail for good behaviour, or to keep the peace, or to answer a criminal charge, or in con- goquence of any summary conviction, or order by any justice or justices, or under any other than civil process, shall appear to be insane, it shall be lawful for any two justices of the peace of the locality, of whom the chairman of the quarter sessions shall be one, to inquire with the aid of two physici- ans or surgeons as to the insanity of such person ; and if it ?iiall be clearly certified by such justices and physicians or suri^eons that such person is insane, it shall be lawful for the Governor to direct by warrant, that such person shall be removed to silch public lunatic asylum, oj" other receptacle for insane persons, as he may judge proper: and he shall re- main under confinement there, or in some other public lunatic asylum, or other proper receptacle, until it be certified to the Governor through the provincial secretary by two physicians or surceons that he ha': become of sound mind, whereupon the Governor may order the removal of such person back to tlie prison from whence he had been taken, or if the period of his imprisonment shall have expired, then to be dis- ciiarfied. ^ 7. Directs in what way provision shall be made for the maintenance and care of persons mentioned in the first and second sections. See also '■^Criminal Lunatic Asiiliun," '''•Lunatics Dan- ijcrous." INSOLVENT DEBTORS. By 11) V me c, 43, § 295, any debtor in close custody upon sm; process, or in execution or upon an attacluneiit or other process, making oath, that he is unable to find security, (for the limits) or bail (if on mesne process,) and is not worth JC5, the court may order the plaintiff to pay to such debtor on ilic third Monday after servi -e of tlie order and on each Monday afterwards so long as he shall be detained in prison, the sum of ten shillings : and in default of payment such ii.H IVT i':^! i\ \ tl \\'y \ ! *" M If. ■II 1.' ^iii- I '■, if' ! ^:l 422 l^n^ptttovu of iSr^oln^ Ut^ ■mm 'S' I ifi liii " f: debtor will be entitled to his discharge. But the plaintiff may file interrogatories against such debtor for the discovery of property, and until fully answered the court may order such weekly allowance to be suspended. § 300. Any debtor in close custody, in execution, for three successive calendar months, and making oath that he is not worth £5 exclusive of his necessary wearing apperal, and that of his family, their beds and bedding and ordinary house- hold utensils, not exceeding in the whole the value of £10 and that he has fully answered all 'nterrogatories filed, &c.' shall be, by rule or order, discharged from custody, upon such terras with respect to assignment of any assumed rights to property as the court or judge may require ; but if it shall appear that the debt for which such debtor is confined was contracted by any manner of fraud, or breach of trust or that he is conQned upon a judgment in any action for breach of promise of marriage, seduction, criminal conversation, libol or slander, the court or judge may order the applicant to bo recommitted for any period not exceeding twelve calendar months, and then to ^^ discharged. See also ''''Gaol Limits," ''''Indiycnt Debtors.'' INSPECTORS'OF GAOLS AND HOSPITALS, i:c. By 20 v., c. 28, § 14, the Governor is authorised to ap- point five fit persons to be inspectors of all public asylums hospitals, common gaols and other prisons in this province. § 15. Meetings of the board provided for. § 10. Tlic said inspectors shall have and perform all the powers and duties now vested in the inspectors of the provincial penitentiary; and in the commissioners of the provincial lunatic asylum § 10. Lispectors, singly or together, shall visit and inspect every gaol, house of correction and prison, or place kept or used for the confinement of persons in any part of the pro- vince other than the provincial penitentiary, as often as may be rc({uired by the Governor, and at least twice in the year ; and every inspector, singly making such inspection, shall report the state of every place of confinement so visited by him to the Board of Inspectors. ^ 20. Gaols heroafter erected to be built according to a plan approved by tlio inspectors, and sanctioned by the Governor, and without this, the same shall not bo deemed in law the gaol of tbo district or county. § 21. Inspectors to report to the Governor on the improvements rc(iuired in gaols erected. § 22. Certain matters to bo taken into consideration by the inspectors in determining upon the plan of any gaol to be erected. § 23. Provision made for securing the requisite .'■ i!'i Unnptttovu of Q:a(Uetnfii» 423 improvements in county gaols. § 24. County councils au- thorised to raise money for making such improvements. § 27. Inspectors to frame rules and regulations for the govern- ment of common gaols to be submitted to the Governor for his approval. § 32. Inspectors also required to visit and report to the Governor once in the year at the least, on the state and management of every private lunatic asylum. § 33. Also asylums for idiots, or for the deaf, dumb, or blind. § 34. And all hospitals twice in the year at the least. § 35. And hospitals or other benevolent institutions supported in part by public money. § 36. Inspectors to make their annual report on or before the 10th of February. INSrECTORS OF TAVERNS. (a) By 13 & 14 V., c. Go, § 5, three inspectors of houses of public entertainment are to be appointed at the annual election of councillors in each township (not divided into wards) or incorporated village ; and in each ward of any township divided into wards, or of any such town or city, one such inspector ; § 0, whose duty it shall be to sec that the by-laws of the municipality are complied with, as regards the persons to whom licenses to keep houses of public entertainment, and to retail spirituous liquors, are to be issued ; and, after due inquiry, to give certificates to such persons respectively for such licenses ; and upon the production of such certificate, and payment of the said sum and of the duties imposed by the said imperial act, to the proper revenue inspector, he shall issue licenses to such persons respectively, which shall be in force from the date thereof until tbe last of February in the next year ; and no such license shall be issued in favour of such person unless he shall produce such certificate as aforesaid. By 20 v., c. 70, § 1, after tbe present ycA' (1857) so much of the 13 k 14 V. c. 65, as empowers the municipal electors to elect inspectors shall be repealed, and it shall be lawful for the council of each municipality to appoint annually one or more fit and proper persons to be such inspectors who shall hold office during the year for which the council shall bave been elected, and any vacancy occurring during the said year shall be filled as aforesaid by the said council for the remainder of the period. § 2. It shall be lawful for the municipalities by by-law to fix and define the duties, powers and privileges of the inspectors, the remune- ration they shall receive, and the security to be given by them for the efficient discharge of the duties of their office. (a) See next statute 20 V., c. 70, vesting the oppointmcut of inspector ia the council. 11 Hi: I* irf.M S ■ iT^fc % t: m m w ¥>i m J m mi », ' 424 Kntemneranre* :i'm If' 1 U' '' ■ ;'■ i ■• it I Such by-laws not being contrary to the laws of Upper Canada. § 3. The person or persons to be appointed in- spcctors shall possess the same property qualification as is now required for councillors of the municipality. See also, titles '■'■Inns and Innkeepers^'' '■'■Intemperance " ^^Shopkeepers." INTEMPERANCE. By the 13 & 14 V., c. 27, it is enacted as follows : — Death by Intoxication. — § 6. When any person shall have drunk spirituous liquors in any inn or tavern, with tlic per- mission or sufferance of the keeper thereof, and shall, -while in a state of intoxication or drunkenness, arising out of the use of such spirituous liquors, come to his death by committini' suicide, or by drowning, perishing from cold, or any other accident, such keeper of any such inn or tavern shall he guilty of a misdemeanor, and being convicted thereof, after having been indicted and tried for such offence in duo cour.se of law, shall be liable to be imprisoned in the common (raol of the county in which such offence shall have been comuiittetl for a period not less than two, and not more than six iiiouth?. and pay a penalty of not less than £25 nor more than .£100, to be paid to the heirs, legal representatives or survivinfr relatives of the deceased, as the court may consider most in need or deserving of the same. Temperance Hotels. — § 7. Whenever any person shall adduce proof of his honesty and good moral character, hy a certificate under the hands of four municipal electors of liis locality, and shall be seised of real or personal property to the value of £100, such person shall be entitled to receive from the municipal council for his locality a license to keep a temperance hotel for the reception of travellers ; and fur such license shall pay to the said council a sum not exceed- ing 7 'js. nor less than 20s. ; provided that no person .so li- censed shall sell or give, or cause to be sold or given to drink, any spirituous or malt liquor, under a penalty of ,£I0 for every ofl'ence : and any person convicted of retailing intoxi- cating li(i[Uors without license, or of keeping a disorderly house, or of selling intoxicating liquors on Sundays anil holidays, shall for every such offence incur a penalty of £10. Offences, how punisj^ed. — § 8. Offences against this act shall be summarily disposed of by one or more justices of the peace, on the evidence of one credible witness ; and every party found guilty shall in default of immediate payuioiit of the fine be imprisoned uuder warrant of such justice uutil )v most in KnUniiiera^nee* 425 payment of such fine, and of the costs incurred for the recovery thereof. § 10. No person not licensed to keep a temperance hotel, or as an apothecary, shall vend or retail any description of liquor known as a temperance drink — such as spruce beer, sarsaparilla, raspberry vinegar, ginger beer, essence or juice of lemons or of oranges, or lemonade — under a penalty of j£10 for every such ofl'ence. Tavern Lists, ^c. — § 11. A list of the licensed taverns and temperance hotels shall be transmitted yearly I / the officer by whom the licenses have been issued, to the clerk of the peace of the county, which shall be published in at least one newspaper of the county or district in Lower Canada; and a proper sign shall be hungup at each of the said taverns or temperance houses, for the information of travellers ; and any person, not licensed, who shall hang up or place near his bouse any sign which may induce travellers to think that he has a license, shall thereby incur a penalty of £5. Witnesses. — § 12. Any person may be a competent wit- ness uuder this act, although he be related, allied or of kin to or in the service of, any party who may bring a complaint, or who may be complained jigainst for any infringement of this act; and if any witness, legally summoned to appear, shall refuse or neglect so to do without reasonable cause, he shall incur a penalty of <£5; and any person endeavouring to prevent any witness from appearing to give evidence, shall incur a penalty of £20. Punishment of DrunTcanh. — §13. If it shall be within the personal knowledge of any magistrate, or on a complaint upon oath made by any one before such magistrate, that any person shall have been seen in a state of intoxication in any public place whatsoever, or in any place in which such in- toxicated person shall be exposed to public view, such magi- strate shall cause such person to be brought before him, and place him in custody until he shall have recovered his reason ; and the person so found intoxicated shall incur and pay a penalty of not less than 5s. nor more than 25s. for his said offence, tof ether with the costs of suit, the expenses of arrest- ing the person so found intoxicated, and of keeping him in safe custody; and in default of payment shall be imprisoned in the house of correction or other place of confinement for a space of time not exceeding one month. Distillers, jfc— § 14. It shall not be lawful for any dis- tiller, merchant or trader, who shall not have a tavern li- cense, to sell intoxicating liquors in less quantities than one gallon, except wine, which may be sold by the bottle ; and 54 ■'■■ "6 :1 ' i 426 KntrnfDieriinre. I" H 'till: such liquor when sold shall be taken away from the premises of such merchant or trader within twenty-four hours after the purchase thereof: provided always, that when any per- son shall produce a certificate from a physician, a priest, or a minister of religion, stating that such a person really re- quires it as a remedy, then in such case only it shall be law- ful for such merchant or trader to sell to such person any quantity he shall require. Inspectors' Visits. — § 17. The inspector of revenue, or his deputy, in every revenue district, shall visit twice in every year all breweries, distilleries and stores in which intoxicat- ing liquors are sold in their respective revenue districts, in order to examine whether the said liquors are adulterateil • and on information by any such revenue inspector or his de- puty, before any justice of the peace, that any such liquor is adulterated, the party in whose possession such adultenited liquor shall be found, shall be compelled to pay a penalty of not less than £10 ; and the said inspector or his deputy shall spill the said liquor. The said inspector or his deputy shall also twice in every year visit the taverns and temper- ance hotels within their respective districts, in order to ascer- tain whether every thing is carried on according to law there- in ; and the proprietors and keepers of such breweries, dis- tilleries, taverns, stores and temperance hotels, refusintr admission to the inspector or his deputy, shall be liable, on conviction on the oath of the inspector or his deputy, to a penalty of £5, and shall make a report thereof to tlie muni- cipal council ; and the said inspector or his deputy shall be entitled to receive from the owner of any such distillery, brewery, st re, tavern or temperance hotel, the sum of ns. for every certificate ; and it shall be lawful for the said in- spector or his deputy to visit any house in which it shall ho suspected that spirituous li(|Uors are retailed witouta license; and if they find any adulterated liquors therein they shall spill the same, and on the information of any such inspector or his deputy, any sucii person in whose possession such adulterated liquors shall be found, shall be condemned to pay a penalty of £5. Pleadings. — § IH. All justices of the peace before whom any trial shall be had under this act, shall take down min- utes in writing of the proceuiings and evidence at such trial, in case an appeal shall be brought from any judgment ren- dered by them. § 19. If on the evidence of ot,e credible witness it shall appear that any party accused of any offence under this act intends to abscond, a warrant shall be issued Mttvpvttmon mtu 427 by any such justice for the immediate arrest of such party, who shall give two good suflScient sureties in ,£60 each for his appearance at his trial, or be imprisoned until such trial shall bo disposed of. Penalties. — § 20. One-half of the penalties under this act shall go to the prosecutor, and the other half to the munici- pality ; or if no municipality, then to the treasurer of the school trustees or school commissioners of the locality, for the support of common schools and purchase of books. § 23. This act to take effect upon and after the 5th April, 1861. INTERPRETATION ACT. By 12 v., c. 10, § 1 enacted, that this act shall be known, cited and referred to as The Interpretation Act, and that each provision thereof shall extend and apply to each act passed in this present session of the provincial parliament, except in so far as any such provision shall be inconsistent with the intent and object of such act, or the interpretation which such provision would give to any word, expression or clause, shall be inconsistent with the context : and except in so far as this act shall in any such act be declared not applicable thereto : nor shall the omission in any act of a declaration that this act shall apply thereto, be construed to prevent its so applying. § 5. Enacts amongst other provisions, that in every act of the parliament of this province, passed or to be passed, as aforesaid, Ninthly — The words " writing," "written," or any term of like import, shall include words printed, painted, engraved, lithographed, or otherwise traced or copied. Eleventhly — The word "month" shall mean a calendar month. Fifteenthly — Any wilful contravention of any such act as aforesaid, which is not made any olTence of some other kind, shall be made a misdemeanor, and punishable accordingly. Sixteenthly — Whenever any wilful contravention of any such act shall be made an oftcnco of any particular kind or name, the person guilty of such contravention shall on con- viction thereof, be punishable in like manner in which such offence is by law punishable. Tiventiethly — The word " magistrate" shall mean a justice of the peace; the words "two justices" shall mean two or more justices of the peace assembled, or acting together ; and if any thing be directed to be done by or before a magi- m ^' y' .; % mm' ,1 m m. 428 3oint Stocl^ (sromnanfes. strate or a justice of the peace, or other public functionary or officer, it shall be done by or before one whose jurisdiction or powers extend to the place where such thing is to be done : and whenever power is given to any person, officer, function- ary to do, or to enforce the doing of any act or thing, all such power shall be understood to be also given as shall be necessary to enable such person, officer or functionary to do or enforce the doing of such act or thing. Twenty -firstly — If in any such act as aforesaid, any party be directed to be imprisoned or committed to prison, such imprisonment or committal shall, if no other place be men- tioned, be in or to the common gaol of the locality in which the order for such imprisonment shall be made, or if there be no common gaol there, then in or to the common gaol which shall be nearest to such locality ; and it shall be law- ful for the keeper of any such common gaol to receive such person, and him safely to keep and detain in such common gaol under his custody, until discharged in due course of law or bailed, in cases in which bail may by law be taken. Note — The ftbovo extracts nre given ns those wliich appear more particu- larly to relate to the adrainistratinn of criminal justice, and niny serve to elucidate such doubtful words or expressions as justices of the peace in the course of their duties may in the reading of the statutes frequently meet with. The act contains many more " interpretations " of words and expres. sions in relation to other matters, the perusal of which will well repay the reader for his time and trouble. JOINT STOCK COMPANIES. By 13 & 14 v., c. 28, anj five or more persons may form a company tor the purpose of carrying on any kind of manu- facturing, shipbuilding, mining, mechanical or chemical business, for a term not exceeding fifty years, upon comply- ing with the requisitions of this act. §11. Stockholders to be liable for the debts of the company only to the amount of their shares, save atid except by § 17, the stockholders shall be jointly and severally liable for debts due the labourers, servants and apprentices of such company ; but no stock- holder shall be liable in this or any case for any debt not payable within one year, nor unless suit brought within the year ; nor shall any person ceasing to be a stockholder he liable for any debt unless sued for within two years after he shall have ceased to be a stockholder, nor until execution issued against the company and tiulla bona returned. JURISDICTION. ♦By 59 G. III., c. 10, it is enacted, that all crimes and offences committed in any tract of country, or parts of this Snts. 429 province, not being "within the limits of any described county or township, may be inquired of, and tried within any dis- trict of this province, and may and shall be laid and charged to have been committed within the jurisdiction of the court which shall try the same ; and such court may proceed to trial, judgment and execution, or other punishment, as if guch crime had been committed within the district. § 2. When such part of the province shall be formed into coun- ties or townships, such offences then shall ba tried in the district in which such county or township shall be compre- hended. See also titles ^^ Indictment " ^^ Lakes and Rivers " ^^Un- organised Tracts." JURY. By Stat. 14 G. III., c. 83, § 11 (which was passed in 1774 and while Upper Canada formed a part of the province of Quebec), it was enacted that the criminal law of England should continue to bo administered and observed us law in the province of Quebec, both in regard to the offence as well as the method of prosecution and trial ; and subsequently, by a statute of the province of Upper Canada, the *40 G. III., c. 1, the criminal law of England, as it stood on the ITth September, 1792, was also declared to be the criminal law of this province, but without affecting the provisions of the above statute of the 14 G. III., c. 83. By *32 G. III., c. 1, the trial by jury is also directed to be used in all civil causes. Sir W. Blackstone says, the trial by jury, or the country perpatriam is also that trial by the peers of every English- man, which, as the grand bulwark of iiis liberties, is secured to him by the great charter. — 4 Bl. Com. 349. And again, that the founders of the English law have, with excel- lent forecast, contrived that no man should be called to answer to the king for any capital crime, unless upon the prepatory accusation of twelve or more of his fellow-subjects, the grand jury, and that the truth of every accusation, whether preferred in the shape of indictment, informa- tion or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indiflferently chosen and superior to all suspicion. — lb. Act for the Regulation of Juries. By 13 & 14 v., c. 55, intituled "An Act for the consolida- tion and amendment of the laws relative to jurors, juries and «'t!4'-' i 430 Snvs. mimi ■i:-] ;■;«: i Hi,:' .; 4' :!'■ inquests in Upper Canada," various provisions are made, of which the following is an abridgement : — Qualification of Jurors. — § 1. Every man 21 years of ace (not infirm or decrepit), assessed as mentioned in the act shall be liable to serve on grjind and petit juries. § 4. Three- fourths of the assessed inhabitants are to be copied from the assessment roll of the township, &c., commencing with the person rated at the highest amount and proceeding successively to the person rated at the lowest amount, until the names of three-fourths of the persons assessed shall have been copied from the roll, and the amount for which the last of such persons shall be assessed shall be the qualification for a juror. Exemptions. — § 5. All persons upwards of 60 years of age — government clerks — clerks and serv.'ints in public de- partrjcnts — judges — sheriffs — coroners — clergymen of what- ever denomination — members of the law society — barristers — students — attorneys — solicitors and proctors actually prac- tising — officers of courts of justice — physicians, surgeons and apothecaries — officers in the army and navy on fall pay- pilots and seamen — officers of the post office, customs and excise — sheriffs' officers and constables — county, township, city, town and village treasurers, clerks and town clerks- professors, masters and teachers of any university, dtc., and officers and servants of any such establishment — all corpo- rate officers — (excepting justices of the peace) — millers and firemen. § 0. And from serving on petit juries : — Members of parliament — wardens and members of county councils- mayors — town-reeves and deputy town-reeves — justices of the peace and members or officers of any corporation. § 7. Jurors drawn and serving the year preceding shall also be exempt, if two complete jury lists can be made up without, and with one year's additional exemption for eacii jury list made up over two. Selection and distribution of Juries. — § 11. The mayor or town-reeve, the city, town, village or township clerk and assessors, shall be, ex-officio, selectors, and assemble annu- ally on the (a) [1st] day of September for the purpose of selecting juries ; § 15, and make duplicate reports, one to be deposited with the clerk of the peace and the other with the town clerk. Jurors' Book. — §§ Iti, 17. The clerk of the peace, between the 1.5th September and [31st] [h) October annually, shall (a) As amended by 14 & 15 V., c. 65. (6) As amended by the same act. ;>,:« 3nv9* 431 transcribe the naiDes of jurors so selected into the jurors' book into four rolls, to be called — 1. Roll of grand jurors to serve in superior courts. 2. Roll of grand jurors to serve in inferior courts. 3. Roll of petit jurors for superior courts. 4. Roll of petit jurors for inferior courts. Balloting Jury Lists.— % 18. The clerk of the peace shall prepare for each roll a distinct set of ballots ; § 19, and on the first day of the sessions annually next after the [31st] (a) dav of October, he shall publicly in court deliver to the chairman the jurors' book for the then next year, and the four parcels of ballots, together with the jurors' books for so many of the next preceding years as may be required, and make oath of their accuracy, whereupon the court shall determine upon balloting a full, two-thirds, or half jury list, composed of the following members :- Full list. Two-thirds list. .. 38 .. 96 .. 64 .. 316 Grand Jurors 48 Petit Jurors 144 Grand Jurors 96 Petit Jurors 288 Half list. 24 "I ^cy \ Superior Courts. 48' 144 Inferior Courts. § 20. The justices shall then (or at an adjourned sitting) proceed to ballot the jurors in the form prescribed by the act, beginning with grand jurors for the superior courts ; and if the party balloted bo not exempt, nor any cause shewn by liim, or by his counsel or attorney, his name shall be inserted ill the minute book of the court, after which the names balloted, alphabetically arranged, shall by the clerk of the peace be copied into the jurors' book with the title of "the crand jury list." "§> 21. The other jury lists to be balloted in like manner. § 22. Such lists to be certified and deposited in the office of the clerk of the peace. § 28. Repealed by 16 A^, c. 120, § 4, which provides that the clerk of the peace shall on or before the 31st December, deposit a correct copy of such jurors' book in the office of the clerk of the crown and pleas of the Court of Queen's Bench at Toronto, and it also provides for the loss of original jurors' books by fire or other accident by the admission of certified duplicates. draftliuj Panels from Jury Lists. — § 25. The slieriff shall "ivc notice by public advertisement in his office and on the doors of the court-house, of the time ho will attend at the office of the clerk of the peace to draft such panel ; at which time he siiall publicly draft such panel in the presence of the clerk of the peace and any two justices, and of any other person or persons who may desire to attend ; eight days pre- (a) As ameaded by 14 & 15 V., c. 05. i^<,^.> vv;< tir' l\ \ .i>.f ■y.:^- 432 3nvp. vioug notice to be given. § 26. The heading to the panels and jury lists to be prepared by the sheriff. § 27 is repealed by 16 v., c. 120, § 5, and the following clause substituted. It prescribes the manner in which the drafting by ballots is to be made ; after the names are drafted, such names with place of residence and addition of the parties arranged alphabetically, shall, by the sheriff or other officer, be tran- scribed and numbered ; and the panel so alphabetically arranged and numbered, with a short statement of the writ, the date and place of drafting, the name of the officers and justices present, or at least two of them, shall be entered in the jurors' book and attested by the sheriff, clerk of the peace, and justices, or at least two of them ; and the sheriflF shall upon his return of the venire facias annex a panel thereto containing the names, places of abode and additions of the persons so drafted, and shall transmit one copy to che clerk of the peace, and another to the clerk of the Crown and pleas of the Queen's Bench at Toronto, to be open for public inspection. § -8. The number of petit jurors not to be less than 4S nor more than 72 in any case unless by direction of the jud^e. Jiirt/ Process. — § 29. Precepts are to be issued by the judges of the respective courts for the return of a competent number of grand and petit jurors. §§ 30, 31, 32, 83, 35 relate to particular forms of jury process. Drawing Jury at the Trial. — § 30, is repealed by 10 V. c. 120, § 0, and the following substituted, viz., thejurors' names places of abode, and addition shall be distinctly written on pieces of parchment, card, or paper, of a certain form or size and delivered to the clerk of assize, marshal, or other clerk of the court by the sheriff, and by his directions and care put together in a box or urn, and upon the trial of any issue, such clerk of assize, marshal, or other clerk, shall, in open court, cause such box or urn to be shaken so as to mix such pieces of parchment, card, or paper ; and Uvelve are to be drawn out, the box or urn being shaken after drawing each name ; and in case of absence or challenpo, ((•'■"i-s are to be drawn out until the number is O' ipl' ed. I'lic then to be sworn and kept ap.'s verdict is rendered, or thoy ar parties or leave of the court, and be returned to the box or urn. Special Juries provided for by § 39 anu subsequent clauses down to § 53, inclusive. (a) Challenyes. — §o5. Want of qualification tobeasufficient (a) Sue also 14 & 15 V., c. (i5, \ 8. jurj are iR-mselves 'uitil their , charged by insent of 11 the :ime names are to 3UV9* 433 ground ; § 56, but not want of freehold alone ; § 67, nor ^ant of a knight on the panel, nor any array quashed therefor. s 58. Persons arraigned for murder not admitted to challenge above the number of Uventv ; and defendants arraigned for 'misdemeanor, if tried together, may unite in challenge of two jurors. («) § 69' Cause to be assigned if the challenge be made on the part of the Crown. § 60. In all civil cases, either party may challenge two jurors without assigning cause, not being special jurors. Summoning Jurors. — § 61. Grand and petit jurors to be summoned eight days before hand, by note in writing, under the hand of the sheriff or proper oflBcer, delivered to the par- ty or, in case of absence, left at his usual place of abode ; and in case of special Jurors three days* notice to be sufficient. Penalties. — § 63, authorises the court to set such fine for non-attendance of jurors as it may think fit, unless reason- able cause be shewn. § 64. Viewers neglecting to attend to be subject to a penalty of £5 and upwards, as the court shall think fit. § 65. The sheriff", upon writs of inquiry, &c. may impose a fine not exceeding j£5 on absent jurors (unless reasonable cause be shewn), . recoverable, as other fines of court, by estreat. § 66. The sheriff" returning any man on a jury not drawn upon the panel ; or clerk of assize, inc. wilfully recording the appearance of any person sum- moned who did not appear, to be subject to such fine as the court shall think proper. § 67. Any sheriff or other officer taking any reward to excuse jurors ; or any bailiff", &c., sum- moning any person not specified in the warrant, or not the full time required by law, shall be liable to such fine as the court may think proper. § 68. Any sheriff" or other officer making any alteration in the rolls, lists or panels (except in compliance with this act), or neglecting to prepare the jurors' book and ballots, or omitting to return the same to the court, or to perform any other duty required by this act, or doing any thing inconsistent with this act, shall for every such offence forfeit £50, recoverable in any court of compe- tent jurisdiction. § 69. (b) Any clerk of the crown, or de- puty, making any alteration in the rolls, lists or panels, or wilfully certifying as true any copy of any jurors' book not being true, shall, for every offence, forfeit £50, recoverable in any court of competent jurisdiction. § 70. Any assessor neglecting to complete his assessment roll and return the (a) This clause is repealed, or intended to be repealed by 16 V., c. 120, and amendments made by § 7 ; but is eroneously described in the act w 1 69 instead of 59. (b) See note above. 55 w 'I V'. ■it; M r r I* !■!• li '^i 434 9nvp. i1. i ^ if '* H i I It li'S lib ^ f. I i \ •I I'i ' same to the clerk of the township, &c., on or before the 1st September, shall forfeit X50 ; § 71, and any municipal oflS- cer having,, at the time of the annual meeting of the selectors of jurors, in his charge or custody the assessment roll or rolls of such city, town, village or township, who shall neg- lect to perform the duties required in § 11 as regards the production of the same, shall forfeit .£25, recoverable in any court of competent jurisdiction. §72. Any selector wilfully making a false report, or taking reward, or neglecting to make report and deposit the same in the proper office on or before the 15th September, shall forfeit a sum not exceeding £20 nor less than £5, at the discretion of the justice before Avhom he shall be convicted. § 73. Any clerk of the peace omitting to perform any duty required in §§ 18, 19, 20, 21, 22, 23, or doing any thing contrary thereto, he or his deputy so of- fending shall forfeit £50. § 74. All fines imposed under this act by any of the courts of law, shall be levied and applied in like manner as any other fines imposed by such courts ; and all other penalties imposed by this act (for which no other re- medy is given), shall, on conviction before any justice within his jurisdiction, be levied, unless forthwith paid, by distress and sale, by warrant urtder the hand and seal of such justice, who is hereby empowered to hear and examine witnesses on oath or affirmation, and to mitigate the penalty to the extent of one moiety, if he shall see fit ; and all penaltiep, the applj- cation whereof is not herein particularly directed, shall be paid to the complainant ; and for want of sufficient distress the offender shall be committed by warrant under the hand and seal of such justice, to the common gaol or house of cor- rection for such term not exceeding six calendar months, as such justice shall think proper, unless penalty sooner paid. Application of Provisions. — § ^5. (a) In every city where there shall b' ostablished a recorder's court, or any other coui't, civil c: criminal, having local jurisdiction, and wherein jurors shall be required, the clerk of such court shall annually prepare the jurors' book for such city ; and the recorder, chairman or presiding member of such court, and the clerk of such court, shall respectively perform ihe duties in respect of such books, ballots and jury lists, as herein before prescri- bed to the quarter sessions and the officers thereof ; and all other duties by this act prescribed to the sheriffs, shall, as respects grand and petit juries, be performed by the bailiff or other officer as aforesaid, with the like form of proceeding. ^ 76. The like po vers ant' duties imposed by this act on (a) Amended by 14 & 15 V., c. 65, as to towns hereafter becoming cities. 3Ktttr»* 435 jastices are also to devolve on aldermen of cities. § 77. The duties of sheriffs and high bailiffs, clerks of the peace and clerks of recorders' courts, may be performed by deputies. § 78, {a) prescribes the duties of coroners upon writs of venire facias. § 79. The directions in this act respecting precepts for grand jurors' panel at the assizes, shall be ob- served and followed with respect to the general quarter sessions and recorders' courts. § 80. Similar provision made respecting petit jurors. § 81, (b) relates to the table of fees to be taken under this act. § 82. In case of no sittings or sessions after the 1st October in any county or city at which the jury lists are hereby required to be made from the jurors' books, the Governor may by warrant fix a day for such purpose. § 83. As to the oath of the clerk of the peace in certain cases. § 84. Former powers of superior courts continued with respect to issuing any writ o precept, or making any award or order for the return of :. jury for the trial of any issue, or for the amending or enlarging the panel of jurors, &c. § 85. Justices of assize may, if they think fit, direct the sheriff to summon and empanel such number of jurors, not exceeding 144, [and by 14 & 15 V., c. 65, 288, for the county of York, or any union of such county,] as they may think fit to serve indiscriminately on the criminal and civil side. § 86, provides for tales-men in default of jurors. § 87. Indemnity to the sheriff for empannelling jurors not qualified. § 88. The sheriff is to note the non- attendance of jurors on the jury list. §89. Jurors attending shall be entitled to a certificate from the sheriff of attendance on payment of Is. § 90. The high bailiffs of cities arc also to note on the jury list the non-attendance of jurors. § 91. Jurors attending entitled to a certificate from the high bailiff on payment of Is. § 92. Relates to attaints and inquests. §93. Embracery punishable as heretofore. §94. Affirmation in liou of oaths may be made by certain parties. § 95. Verdicts not to be impeached by non-compliance with any of the directions in this act. § 96. This act not to affect the power of any court or judge in regard to trials by jury, jury process, juries or jurors, except as repealed or altered by this act. § 97. Repeals former acts mentioned in schedule 0, § 98. [c) Grand Jury. By 14 & 16 v., c. 66, § 1, in case twelve grand jurors (a) Am?nded by 14 & 15 V., o. 65. (6) Repcai?d by 16 V., c. 120, 19 & 20 V., c. 92, and a new tariflf fixed, (c) This and the remaining Bections, to \ 101 inclusive, arc repealed by 14&16V.,c. 65, §2. I 5 ; l5ii ■J I fi'ii i'ii t 'I'M 436 Stttfi* summoned do not appear, the court on request of the crown counsel, may command the sheriff to supply the deficiency by tales-men present and duly qualified. Payment of Petit Jurors. By 14 & 15 v., c. 14, § 7 every petit juryman actually attending any of the courts oi assize and nisi prius, oyer and terminer, general gaol delivery, general quarter sessions of the peace, or county courts in Upper Canada, shall be entitled to five shillinya per day, for every day he shall actually attend such court, and six pence per mile for every mile he shall necessarily travel from his place of residence to the said court, or such other sum as the county council shall by by- law from time to time fix and determine. The distance to be ascertained by the declaration of the sheriff's bailiff sum- moning such juror, or by the declaration of the juror himself; any juror making a false declaration shall forfeit his right to travelling expenses and attendance at court. § 2. A pay list to be made by the sheriff in the form set forth by the schedule, and he is to attend or cause some officer to attend at the opening of the court each morning the court shall sit for the trial of causes by jury, and upon the jurors bein* called over, shall check and mark the word " present " or " absent," as the case may be, in the proper column of such list, opposite the name of every juror, and on the last day of the sitting of such court, shall certify and returix to the treasurer of the county the said pay list. § 3. The treasurer to pay every juror the sum so appearing due to him on such list. § 4. The sheriff to receive a certain allowance for such pay lie' . § 5. The marshal or clerk of assize, the clerk of the county court, or clerk of the peace, as the case may be, at the opening of the court, and before any other buisness is proceeded with, shall call over the names of the petit jurors, that the sheriff, or his officer, may check who arc present or absent. § 6. Jurors not appearing when so called, shall not be entitled to any pay for that day, and be subject to such fine as to the court shall seem meet. § 7. The sum of 15s. to be paid to the clerk of assize, and 7s. 6d. to the clerk of the county court, on every record entered for trial or assess- ment, to be forthwith paid over to the treasurer, and form part of the jurors' fund. § 8. In all criminal cases in which by law the party prosecuting, or prosecuted shall be liable to pay the costs of the prosecution, the officer of the court shall charge and receive from such party 15s. over and above other liabilities, to form part of the jurors fund, and be paid over, as above. § 9. All fines and penalties imposed upon and :'.' *1 ' Snv». 437 levied in the several counties in Upper Canada, not payable to the Receiver-General, and all fines upon jurors for non- attendance, shall be paid to the county treasurer, and form part of the jurors' fund. § 10. County councils authorised to raise and appropriate such sums of money, as in their judg- ment shall be sufficient to pay the jurors according to the terms of this act, in case the sums appropriated by this act shall not be sufficient. § 11. County councils are also author- ised by by-law, in their discretion, to provide for the pay- ment of grand jurors. § 12. The foregoing provisions not to be in force or apply to any county, until the county council of such county, desirous of availing themselves thereof, shall impropriate such a sum of money as will, in their judgment, vith the moneys applicable under this act, form a fund suffi- cient to pay jurors under the provisions aforesaid, or any deficiency that may occur. § 13. The treasurer of the county, in which a jury fund shall be so provided, shall give notice thereof to the sheriff, who shall thereupon perform the duties imposed upon him under this act. § 14. The court or judge may order records to be entered, and the business of the court proceeded with, on the first day of the sitting of the com-t. Of Challenges. Challenges are of two kinds, viz., either to the array^ which must be in writing ; or the polh, which may be verbal, and may bo made cither on the part of the king, [i. e. the prosecutor,) or of the prisoner. — 4 Bl. Com. 352. A chal- lenge to the array is an exception to the whole panel in which the jury are arrayed. There ave two descriptions of causes of challenge to the array, viz.; principal causes of chal- lenge, and causes of challenge to favour. The following are principal causes of challenge to the a.i-ay, viz., if the she- riff, or otbcr officer, bo of kindred to the plaintiff or defend- ant; if any one or i\)«n'o of the jury be returned at the nomi- nation of cither party ; if the plaintiff or defendant have an action of battery against the sheriff, or the sheriff against either party; so, if cither party have an action of debt against tne sheriff; but otherwise, if the sheriff have an ac- tion of debt against cither party ; or if the sheriff have par- cel 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 cither 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 i ".ti il ''^> «»(!« *•: i'i ■'>•' '! •♦■• •rs :f ; 'si tit I; ' il .1' f, :■' iuh. fl: ,1 •> I!;':-; .fh- V:. «i'S:ii,*i lB:'il u tm 438 3nvp. conscience and discretion of the triers, under the particular circumstances of each individual case. Thus, it is said, that if one of the jurors returned be a tenant to the sheriflF; or if there be a family connexion between one of the jurors and the sheriff, this may be ground of challenge to the array for favour : that is, matter to be left to the triers to decide whe- ther it indicates such partiality as should avoid the array.— 3 Bl. Com. 359. Challenges to the polls are challenges of individual jury- men, 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 common law might peremptorily chal- lenge 35, but by stat. 22 H. VIII., c. 14, § 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 H. VIIL, c. 23, but revived by stat 1 & 2 P. & M., c. 10. *By 3 W. IV., c. 4, and 4 & 5 V., c. 24, § 16, every per- emptory challenge by any person indicted for treason or felony, beyond the number by law allowed, shall be void, and the trial may proceed, as if no such challenge had been made. In cases of misdemeanor^ there is no right, at common law, to peremptory challenge, but it is usual for the officer to abstain from calling any reasonable number of names objected to by either party, taking care to leave enough to form a jury.-l. Dickenson Q. S. j>. 344. {a) A challenge to the polls, or of individual jurymen, is like a challenge to the array, a principal challenge, or a challenge to the favour. The grounds of principal challenge are— 1. The rank of the party, as being a peer of the realm. 2. For some personal incapacity, as if a juryman be an alien or a minor. 3. On account 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 ; {h) as tenant or servant ; or of counsel with him — 4 Bl. Com. 361 ; or if ho has declared his opinion beforehand Hatv. h. 2, c. 43, §29 ; or has indicted the party for the same cause — Lamb, 554 ; or been upon a former jury upon the same matter, though between other persons : or arbitrator, unless indifferently chosen by cither party ; or action pending between the juror and either of the parties ; or bribing a juror. — 1 Inst. 157. 4. On account of (a) But now by stat. 13 & 14 V., c. 55, (jury act) g 58, a dgfcnJunt on triul for mitdemeanor may challenge ' T . '{ estate, either in free or common soccage, or en fief, or en roture, or en franc aleu, in absolute property or for life, or by emphyteose or lease for one or more lives, or originally created for a term not less than twenty-one years, or by usufructuary possession for his life in lands, tenements, or other immoveable property, lying and being in this province, of or atjove the value of £300 currency, over and above all incumbrances, or who shall not, before the 1st day of January, 1843, or before he takes upon himself to act as a justice of the peace, take and subscribe the following oath, before some one justice of the peace for the district where he intends to act : I, A. B. do swear, that I truly and bona fide have, to and for my own proper use and benefit, such an estate {spec! filing th nature of such estate, whether land, if land, designating the same Ini its local description, rents, or any thing else), as doih qualify me to act as justice of the peace for the district of , accordii,- to the true intent and meaning of an act of the provincial par- liament, made in the sixth year of the reign of her Majestv Q,ueen Victoria, and intituled, An Act for the qualification of Justices of the Peace ; and that the same is lying and being (or issuing out of lands, or tenements or hereditaments, situate) within the township, parish or seigniory of , (or in the several townships, parishes, or seigniories of ,) or as the ease may be). So help me God. A certificate of which oath having been so taken shall be forthwith deposited by the said justice, who shall have taken the same, at the office of the clerk of the peace, to be filed among the records of the sessions. §4. The clerk of the peace shall, upon demand, deliver copies of sucli oath to any person on payment of one shilling, which copy shall bo evidence at law. § 5. Any justice acting without taking and subscribing said oath, or without being qualified according to the act, shall for every offence forfeit £25, one moiety to her Majesty, and the other to the informer ; to be recovered, with full costs, in any court of competent jurisdiction in the district, and in such action the proof of qualification shall be upon the defendant. § G. If any defendant shall intend to insist upon any lands, tenements or real estate, not mentioned in the oath, as constituting the whole or any part of his qualification to act as a justice at the time of the alleged offence, he shall, at or before the time of pleading, deliver to the plaintiff, or his attorney, notice in writing, specifying such lands, tenements or real estate, and the township or place, and the county m counties where situate, and the plaintiff may thereupon, with In**) I 3^ntittn of ti|( ]9eate« 443 leave of the court, discontinue such action, on payment of the defendant's costs. § 7. Provided that, upon trial, no other lands or real estate than such as are mentioned in such oath or notice, shall bo insisted upon by the defendant. § 8. When the property mentioned in the oath or notice shall be liable to incumbrances, together with other lands, the property mentioned in the oath or notice shall be deemed liable only so far as the other lands are not sufficient to pay the same. § 9. When the qualification consists of rent, it shall be sufficient to specify so much of the property, out of which such rent is issuing, as shall be sufficient to secure such rent. § 10. In case the plaintiff shall discontinue such action, other than as aforesaid, or judgment be given against him, the defendant shall recover treble costs. § 11. After action brought and due notice given, the court may stay proceedings in any subsequent action for any prior ofl'ence : provided such first action be prosecuted -witli effect. § 12. The court may require the plaintiff to declare upon oath that such action has been brought by him without fraud, and not for the purpose of protecting the defendant from any other action ; and if not made to the satisfaction of the court, the action shall be dismissed with costs. § 13. False statements in any oath under this act to be treated as Avilful and corrupt perjury. §14. Actions to bo comnionccd within six calendar months after the fact. § 15. Exemptions from the act : the members of her Majesty's Legislative Council, Executive Council, judges of the King's Bench or Queen's Bench, vice-chancellor, provincial judges of the inferior dis- tricts of St. Francis, Gaspe, or any district judge, her Ma- jesty's attorney-general, solicitor-general, advocate-general, and any Queen's counsel. J IG. Sheriffs and coroners disqualified from acting as justices pro ton. § 17. Fines and penalties, payable to her Majesty under this act, to re- main at the disposal of the provincial parliament, for the use of the pro^^ince. By v., c. 41, § 1, the Governor in council is authorised to appoint justices of the peace in remote parts of the pro- vince, not being within the constituted limits of any district ; and such justices need not be stated residents, nor possess any property qualification. § 2. And may hold and exer- cise all the powers (but subject to the laws in force) regard- ing the office of justice of the peace. § 3. Commitments made by them to be to the nearest common gaol. § 4. And appeals against their decisions to the nearest general quar- ter sessions, at any time within six calendar months. iHI .1 r'i.'i i ' V »V s* p* .! ii 1 m ''t!l . i 444 Sv^utittu Of t)|( Vtutt* if l!'^ fi'., m; mi'A i '■If J\)r»i o/ 440 3lu0tfcr» of tiie Vtutt* F' II- ■^■1 1'-- '^ Mm ^'i'. ■ , '1 u if 111 < to some opinions, also, by succeeding to the office of coroner. —Dalt. c. 3,-1 Bl Com. p. 358. Oath of Office. (Burn.) Ye shall swear, that as justices of the peace, in the county of , in all articles in the Q,ucen's commission to you di- reeled, 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 Canada, and statutes thereof made ; and ye shall not be of counsel of any quarrel hanging before you ; and that yc hold your sessions after the form of the statutes made ; and the issues, fines, and americaments, that shall hap- pen to be made, and all forfeitures which shall fall before you, ye shall cause to be entered without any concealment, (or cni- bezzelling) and truly send them to the Queen's exchequer; ye shall not let, for gift or other cause, but well and truly you 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 Q,ueen, and fees accustomed, and costs limited by statute ; and ye shall not direct, nor cause to be directed, any warrant (Jn/ i/ov to he mmhi) to the parties, but ye shall direct tliem to the bailifTs of the said county, or other the Queen's officers or ministers, or other indifllerent persons, to do execution thereof. — So help you God. Of their Power, Duty, and Office. First — The commission empowers them to conserve the peace. Second — It empowers any two, or more, to hear and determine all felonies and other offences mentioned in the commission. His jurisdiction is confined to the county for which he is commissioned. It scorns, however, that recof- nizancos and informations, voluntarily taken before him, in any place, are good. — 2 Haw., c. 8, § 28. But a justice has no jurisdiction, either over the offence or the offender, when the one is committed, and the other abiding, in another county. There are cases, however, where the presence of an ofl'ender within the county gives the justice authority, arising out of the necessity of preserving the peace, to pro- ceed against the party offending. Thus, if a man commit a felony in one county and goes into another county, a justice of such other county may take his examination, and the in- formation against him, in that county, 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 offence had been committed within his jurisdiction. — 2 Hale, 51. By che recent statutes relating to "Summary Convictions" and "Indictable Offences," 16 V., c. 178, 179, a party against whom a warrant has been issued escaping and going oroner. ! county I you di. the rich, aws and )f made ; ig before a statutes hall hap- •forc you, t, (or cm- jquer ; ye truly you mlf ; and D peace lo and costs use to be ies, but ye r other tlie persons, to nscrve the lO hear and ncd in the county for hat rccog- rc him, in Ijustice has hder, when |in another jresence of authority, ICC, to pro- commit a r, a justice incl the in- )mmit him, the trial ; )ffence had il. )nvictions" |9, a party and going 3u0tite0 tif tlie 39eiit(« 447 into another jurisdiction, whether in Upper or Lower Canada, may there be arrested and conveyed back before the justice or justices issuing the warrant. The provisions contained in these statutes are more fully detailed under their respec- tive titles above referred to. By statute 1 & 2 P. & M., c. 13, in cases of manslavgJiter and faioni/, justices of the peace arc directed to take the examination merely, of the prisoner, and certify the same at the next gaol delivery • since which enactment, it has been u8ual 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. But now by *7 W. IV., c. 4, § 2, the courts of general quarter sessions arc empowered to try every case of simple larceny and accessories to larceny, except the chairman be not a barrister ; in which case, the larceny to be tried must not exceed in value £20. By a subsequent statute, the 8 V., c. 13, § 3, the scinor judge of the district court being also a justice of the peace for such district, shall preside as chairman at the quarter sessions. The commission also admonishes thc-m, in all cases of difficulty, to let judg- ment in nowise be given thereon, unless in the presence of one of the judges appointed to hold the assizes for the dis- trict. It may be further observed, that the offences of mur- der and manslaughter are not mentioned in the commission ; from which circumstance it may be inferred, that justices of the peace (in sessions) could never claim jurisdiction over these offences. — Fitz ^f- Slraund, 9 //. 1 V., 24 Coron. 457. Where a matter of right or title to property comes in ques- tion, justices of the peace have then no jurisdiction. — R. V. Barnahy, 3 Salk. 217 ; 2 Ld. E. DOO. A justice ouffht not to act in any case in which he himself is interest- ed, but should cause the party .o bo convened or carried before some other justice, or desire the aid of some other justice who is present. — Dalt. 173. And in all cases where a justice is empowered to hear and determine a matter out of sessions, he should make a record in writing, under his hand, of all the matters and proofs ; and all convictions should be returned by him to the sessions. — Dalt. c. 115; 2 T. R. 385. By 4 & 5 v., c. 12, § 1, justices of the peace are required to make a return of convictions for fines and penalties to the next general quarter sessions, and of the receipt and appli- cation of the moneys, (§ 2) under the penalty of d£20. >'41fill;;r'- y^\ , I \\\ *t*' I; I ' ^'(■■i^i.:' , ' ,' i« : \im\ '• 13 • ■'■■ ■ 'Hr;:^(l i--, Ml ■;•■'' ■ 448 SunUttu 0x me iftutt* 27ie Official Duties of a Justice of the Peace. These duties extend to indictable offences, as well as those of minor importance, which bj statutory law may be disposed of judicially by summary conviction (a), such as assault and trespass, or tl.. infringement of some statutory enactments imposing a fine or penalty for the offence commited. There are some cases, however, of larceny, which may now also be disposed of summarily. Where the value of the property stolen doe J not exceed ^ve shilUngSj the recorder of any city may, under the recent statute 20 V., c. 27, convict and sen- tence the offender to imprisonment, with or wit^'-ut hard labour, for a period not exceeding three months ; and by § 3 where the property stolen exceeds the value of five shillings and the recorder is of opinion it is a case that may be dis- posed of in a summary way, he is authorised to do so, and to sentence the offender to imprisonment, with or without hard labour, for any term not exceeding six calendar months § 5. And where any person is charged before any justice or justices with any offence mentioned in this act, and in the opinion of such justice or justices the case may be a proper one to be disposed of by a recorder, or by a police magistrate such justice or justices may, if he or they sec fit, remand the accused for further examination before the recorder, or nearest police magistrate in like manner as under the 16 V. c. 179, § 13. And so juvenile offenders whose age does not exceed sixteen years, may under the 20 V., c. 29, in cases of simple larceny, upon conviction, upon confession or proof before two or more justices in open court be committed to the common gaol, or house of correction within the jurisdic- tion of such justices, with or without hard labour, for any terra not exceeding three calendar months, or, in their discre- tion, forfeit and pay a sum not exceeding £5. But if such justices shall bo of opinion that the charge is a fit subject for prosecution by indictment, or the party charged shall object to summary trial under this act, then they shall deal with the case as if this act had not been pas?ed. These statutes will be fr .nd more fully detailed under their respective titles of "Zarceny" and ^'■Juvenile Offenders^' and are here incidentally noticed in order that the attention of justices may be drawn to them. We have now to consider the course of proceeding with regai J to indictable offences. All feloni'^s, and misdemeanors are strictly speaking indictable offences. (a) Sei title "Summary Conviction." mm ^ M 3nnUttu of ifit J^eace. 449 Felonies comprise as well the highest order of offences such as murder, manslaughter, burglary, arson, robbery, forgery and the like, as also cases of simple larceny, such as the commission of a bare theft unattended by any other aggravation of the crime ; all which, as such, are indictable offences ; misdemeanors, are offences of a lesser degree than felony. Every attempt to commit a feloiy is a misdemeanor, and so is any incitement or solicitation to commit a y'cime a misdemeanor ; as where the offender incited and solicited a servant to steal his master's property ; the servant was honest, and informed his master, and no theft was committed. But the instigator was indicted for the misdemeanor and convicted. Lord Kenyon observing that the bare solicita- tion of a crime was a misdemeanor, E. v. Jliggins, 2 JSast. 5' so parties guilty of any public nuisance, such as obstruct- ing a public highway and the like may be indicted for a misdemeanor ; and the publication of a defamatory libel is a misdemeanor. More upon this subject will be found under the head of misdemeanor, to which the I'cadcr is referred. The course of procedure for indictable offences is provided for by statute, lO V., c. 179, as follows : Indictable Offences. Complaint. — § 1. That in all cases where a charge or complaint (A) is made before any one or more of her Majes- ty's justices of the peace for any territorial division of Upper Canada, that any person has committed, or is sus- pected to have committed, any treason, felony or other indictable misdemeanor or offence within the limits of the jurisdiction of such justice or justices of the peace, or that any person guilty or suspected to bo guilty of having committed any such crime or offence elsewhere out of the jurisdiction of such justice or ju«*''" >:,, is residing or being, or is suspected to reside or be witain the limits of the juris- diction of such justice or justices, then, and in every such case, if the person so charged or complained against shall not then bo in custody, it shall be lawful for such justice or justices of the peace to issue his or their warrant (B) to apprehend such person, and to cause him to be brought before such justice or justices, or any other justice or justices for the same territorial division, to answer such charge or complaint and to be dealt Avith according to law : provided always, that in all cases it shall be lawful for such justice or justices to whom sifch charge or complaint shall be preferred, if he or they shall so think fit, instead of issuing in the first instance his or their warrant to apprehend the 57 ^1 r- ■•;■'; 'i „l" I ■s '■'<,' ', !!' mm h' ' :i ! ! !. I r,AM 460 3uMttu of tf^t ^tutt. iiii^-jf person so charged or complained against, to issue his or their summons (C) directed to such person, requiring him to appear before the said justice or justices, at the time and place to be therein mentioned, or before such other justice or justices of the same territorial division as may then be there and if, after being served with such summons in manner hereinafter mentioned, he shall fail to appear at such time and place, in obedience to such summons, then, and in every such case, the said justice or justices, or any other justice or justices of the peace, for the same territorial division, may issue his or their warrant (D) to apprehend such person so charged or complained against, and cause such person to be brought before him or them, or before some other justice or justices of the peace for the same territorial '1' vision, tn answer to the said charge or complaint. " t i>e further dealt with according to law : provided ne vortlieless, that nothing herein contained shall prevent any justice or justices of the peace from issuing the warrant hereinbefore first mentioned, at any time before or after the time mentioned i . such summons for the appearance of the accused party. Indictment — Warrant thereon. — §2. ThAt when any in., dictment r:hall be found by the grand jury in any oourt of oyer and terminer or general gaol delivery, or i;; unv ,ourt of general quarter sessions of the peace, against un_) js^rson who shall then be at largo, and whether such person sliall be bound by any recognizance to appear to answer to any sudi charge or not, the person who shall ?.ct as marshal at sudi court of oyer and terminer or gaol delivery, or as clerk of the peace at such sessions at which the said indictment sh;il! be found, shall, at any time afterwards after the end of tliu sessions of oyer and terminer or gaol delivery, or sessions of the peace, at which suc'» indictment shall have been found, upon application of the pi osecutor, or of any person m his behalf, and on payment of a fee of one shilling, if sudi person shall not have alrca ly appeared and pk-adcd td such indictment, grant unto such pros(>cutor or person a certifiwti' (F) of such indictment having been found ; and u|>(»ii prn. duction of such certificate to anv justice or justices of il peace for the county or united counties in which the oftVncr shall in such indictment be alleged to huv been coniniittel. or in which the person iiulictcd in and by such indictni' > • shall reside or be, or be supposed or suspected to r('si(b' nr be, it shall be lawful for such justice or justices, and he or they are hereby required to issue his or their warrant (G) tn apprehend such person so indicted, and to cause him to le brought before such justice or justices or any other justice or Sttstfres of ti^e ^tutt. 451 justices for the same district, to be dealt with according to 'law: and afterwards if such person be thereupon apprehended and brought before any such justice or justices, such justice or justices, upon its being proved upon oath or affirmation before him or tiiem, that the person so apprehended is the same person who is charged and named in such indictment, shall without further inquiry or examination, commit (H) him for trial, or admit him to bail in manner hereinafter mentioned ; or if such person so indicted shall be confined in any gaol or prison for any other offence than that charged in the said indictmert at the time of such application and production of such certificate to such justice or justices as aforesaid, it shall be lawful for such justice or justices, and he or they are hereby required, upon its being proved before him or them upon oath or affirmation, that the person so indicted and the person so confined in prison are one and the same person, to issue his or their warrant (I), directed to the gaoler or keeper of the gaol or prison in which the person so indicted shall then be confined as aforesaid, commanding him to detain such person in his custody, until, by her Majesty's writ of Habeas Corpus, he shall be removed therefrom for the purpose of being tried upon the said indictment, or until he shall be otherwise removed or discharged out of his custody by due courfic of law : provided always, that nothing herein con- tained shall prevent or be construed to prevent the issuing or execution of bench warrants, whenever any court of compe- tent jurisdiction may think proper to order the issuing of any sucii Avarrant. Warrant on Sunday. — § 3. That it shall be lawful for any justice or justices of the peace to grant or issue any warrant as aforesaid, or an;' search warrant on a Sunday as well as on any other day. Information and complaint — Search Warrant, ^'c. — § 4. That in all cases when a cliarge or complaint for any indict- alilo oflonce shall bo made before such justice or justices afureyaiil, if it be intondcu to issue a warrant in the first instance against sucli party or parties so chaigod, an inform- ation and complaint then^of (A) in writing, on the oath or aifirmation of the informant, or of some witness or witnesses iu that behalf, nliall be laid before such justice or justices: provided always, that in those (uises only when it is intended to issue a suiinnons instead of a warrant iu the Sist instance, and where it is ho specially provided in seme act of parlia- ment, it shall not be necessary that such ir.formation and complaint shall bo in writing, or bo sworn to or affirmed in manner aforesaid ; but in every such case so provided for in m ri J 1 f\ M 11^^ ;f' 1^1 1 "i!\ 452 ^ttfiitfte of tue l&tutt* v'ri! : :im\ ■■.; .'F ; J (fit! . some act of parliament as aforesaid, such information and complaint may be by parol merely, and without any oath or affirmation whatsoever to support or substantiate the same: provided also, that no objection shall be taken or allowed to any such information or complaint for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the justice or justices who shall take the examination of the witnesses on that behalf as hereinafter mentioned ; and if any credible witness shall prove upon oath (E 1) before a justice of the peace, that there is reasonable cause to suspect that any property whatsoever, on or with respect to which any larceny or felony shall have been committed, is in any dwelling-house, out-house, garden, yard, croft or other place or places, the justice may grant a warrant (E 2) to search such dwelling-house, garden, yard, croft or other place or places, for such property. Summons or Warrant on Information. — §5. That upon such information and complaint being so laid as aforesaid the justice or justices receiving the same may, if ho or they shall think fit, issue his or their summons or warrant respec- tivf ly as hereinbefore directed, to cause the person charged as Cttbresaid to be and appear before him or them, or anv justice or justices of the peace for the same territorial division to be dealt with according to law: and every summons (C) shall be directed to the party so charged in and by such in- formation, and shall state shortly the matter of such inform- ation, and shall require the party to whom it is directed to be and appear at a certain time and place therein mentioned, before the justice who shall issue such summons, or before such other justice or justices of the peace for the same terri- torial division as may then be there, to answer to the same charge, and to be further dealt with according to law ; and every such summons shall be served by a constable or other peace officer upon the person to whom it is so directed, hv delivering the same to the party personally, or, if he cannot conveniently be met with, then by leaving the same for him with some person at his last or most usual place of abode ; and the constable or other peace officer who shall have served the same in manner aforesaid, shall attend at the time and place, and before the justice or justices in tlie said summons mentioned, to depose, if necessary, to the service of such summons : and if the person so served shall not be and appear before such justice or justices, at the time and place mentioned in such sunnnons, in obedience to thi same, then it shall be lawful for such justice or justices, to Snutittn of t^t ^tutt^ 453 issue his or their warrant (D) for apprehending the party so summoned, and bringing him before such justice or justices, or before some other justice or justices for the same terri- torial division, to answer the charge in the said information and complaint mentioned, and to be further dealt with ac- cording to law : provided always, that no objection shall be taken or allowed to any such summons or warrant for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecutor before the justice or justices who shall take the examination of the witnesses in that behalf as hereinafter mentioned; but if any such variance shall appear to such justice or justices to be such that the party charged has been thereby deceived or misled, it shall be lawful for such justice or justices, at the request of the party so charged, to adjourn the hearing of the case to some future day, and, in the mean- time, to remand the party so charged, or admit him to bail in manner hereinafter mentioned. Warrant — Form of, ifc. — § 6. That every warrant (B) hereafter to be issued by any justice or justices of the peace to apprehend any person charged with any indictable oft'encc, shall be under the hand and seal, or hands and seals, of the justice or justices issuing the same, and may be directed to all or any of the constables or other peace officers of the district within which the same is to be executed, or to such constable and all other constables or peace officers in the territorial division within which the justice or justices isjsuing the same has or have jurisdiction, or generally to all the constables or peace officers within the last-mentioned terri- torial division ; and it shall state shortly the offence on which it is founded, and shall name and otherwise describe the offender ; and it shall order the person or persons to whom it is directed to apprehend the offender, and bring him before the justice or justices issuing such warrant, or before some other justice or justices of the peace for the same territorial division, to iinswer to the charge contained in the said information, and to be further dealt with according to hnv ; and it shall not be necessary to make such warrant returnable at any particular time, but the same may r person bringing sucii warrant, and tu all other jK-rsons to whom the same was originally directed, and also to all constables and other peace officers uf the territorial division where such Avarrant shall be so endorsed, to cxecuu the same in such 'ther territorial division, and to carry the 3uutittu of if^t Peaee. 455 person against whom such warrant shall have issued, when apprehended, before the justice or justices of the peace who first issued the warrant, or before some other justice or jus- tices of the peace for the same territorial division, or before some justice or justices of the territorial division where the offence in the said warrant mentioned appears therein to have been committed : provided always, that if the prosecutor or any of the witnesses upon the part of the prosecution shall then be in the territorial division where such person shall have been so apprehended, the constable, or other person or persons who shall have so apprehended such person, may, if so directed by the justice backing such warrant, take and convey him before the justice who shall have so backed the said warrant, or before some other justice or justices for the same territorial division ; and the said justice or justices may thereupon take the examination of such prosecutor or wit- nesses, and proceed in every respect in manner hereinafter directed with respect to persons charged before a justice or justices of the peace, with an offence alleged to have been committed in another territorial division than that in which such persons have been apprehended. Summoning Witnesses. — § 8. That if it shall be made to appear to any justice of the peace, by the oath or affirmation of any credible person, that any person within the jurisdiction of such justice is likely to give material evidence for the prosecution, and will not voluntarily appear for the pur- pose of being examined as a witness at the time and place appointed for the examination of witnesses against the accused, such justice may, and is hereby required to issue his summons (L 1) to such person under his hand and seal, reiiuiriiig him to be and appoar at a time and place mentioned in such summons, before the said justice, or before such other justice or justices of the peace for the same territorial division as shall then be there, to testify what he shall know concerning the charge made against such accused party ; and if any person so summoned shall neglect or refuse to appear at the time and i)lace appointed by the said summons, and no just excuse shall be ofterod for such neglect or refusal, thou (after proof upon oath or affirmation of such summons iiaving been served upon such person, either personally or Avitii some person for him at his last or most usual place of abotle) it shall be lawful for such justice or justices before whom such person should have appeared, to issue a warrant (L -) under his or their hands and seals, to bring and have such person, at a time and place to b<^ '' -"^'n mentioned, before the justice who issued the said summons, or before \ rj Hi If!'. im m «l';.:'^i!"' I t«|f it!! 'A- J- i'.-.*' ^ii 456 3uuUttu of tfte ^tutf. ^■1 u^ t I ' ^'■i.;!yH'^^^ such other justice or justices of the peace for the same territorial division as shall then be there, to testify as afore- said, and which said warrant may, if necessary, be backed as hereinbefore is mentioned, in order to its being executed out of the jurisdiction of the justice who shall hu ve issued the same ; or if such justice shall be satisfied by evidence upon oath or affirmation that it is probable that such person will not attend to give evidence unless compelled so to do then, instead of issuing such summons, it shall be lawful for him to issue his warrant (L 3) in the first instance, and which, if necessary, may be backed as aforesaid, and if on the appearance of such person so summoned before the said last mentioned justice or justices, either in obedience to the said summons or upon being brought before him or them by virtue of the said warrant, such person shall refuse to be examined upon oath or affirmation concerning the premises or shall refuse to take such oath or affirmation, or having taken such oath or affirmation, shall refuse to answer such questions concerning the premises as shall then be put to him, without giving any just excuse for such refusal, any justice of the peace then present, and having there jurisdic- tion, may, by warrant (L 4) under his hand and seal, commit the person so refusing to the common gaol of the county where such person so refusing shall then be, there to remain and be imprisoned for any time not exceeding ten days, unless he shall in the meantime consent to be exammed and to answer concerning the premises. Examination in presence of the accused. — § 9. That in all cases where any person shall appear or be brought before any or justice or justices of the peace charged with any indictable offence, whether committed in this province or upon the high seas, or on land beyond the seas, or whether such person appear voluntarily upon summons or have been appre- hended, with or without warrant, or be in custody for the same or any other offence, such justice or justices before he or they shall commit such accused person to prison for trial, or before lie or they shall admit him to bail, shall in the pesenco of such accused person, who shall bo at liberty to put questions to any witness produced against him, take the statement (M) or oath or .affirmation of those who shall know the facts and circumstances of the case, and shall put the same in writing, and such depositions shall be read over to and signed rofspectively by the witnesses who shall have been 80 examined, and shall be signed also by the justice or justices taking the same ; and the justice or justices before whom any such witness shall appear to be examined as afore- 3mtittu of ttl^ 39(ate« 457 said, shall, before such witness is examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and authority to do ; and if, upon the trial of the person so accused as first aforesaid, it shall be proved upon oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead, or is so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney, had a full opportunity of cross-examining the witness, then if such deposition purports to be signed by the justice by or before whom the same purports to have been t J^en, it shall be lawful to read such deposition as evidence in such prosecution without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. § 10. Statement of the Accused Party. — That after the examinations of all the witnesses on the part of the prosecution as aforesaid shall have been completed, the justice of the peace, or one of the justices by or before whom such exami- nation shall have been so completed as aforesaid, shall, with- out requiring the attendance of witnesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect : " Having heard the evidence, do you wish to say any thing in answer to the charge 'i You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." And whatever the prisoner shall then say in answer thereto shall be taken down in writing CS) and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned ; and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall bo proved that the justice or justices purporting to sign the same did not in fact sign the same : provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been hclden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or 68 ■:i .M' .1: \ 4 'flit " Mi I'll ^*jj m I Ft w m I'm m [(■■hi )' I ' /i,^ r : .:: If : "(..'i ^:-. h: 'i w \ 1 1. '.cKv-ai f- '!' ■71;" pii;:^ i ;^'i 458 3ttiylfce0 of tue )9ta(tr* threat : provided nevertheless, that nothing herein contained or enacted shall prevent the prosecutor, in any case, from giy. ing in evidence any admission or confession, or other statement of the person accused or charged, made at any time, -which by law would be admissible as evidence against such person. Place of Examination. — § 11. That the room or buildin(» in which such justice or justices shall take such examination and statement as aforesaid, shall not he deemed an open court for that purpose ; and it shall be lawful for such justice or justices, in his or their discretion, to order that no person shall have access to, or be or remain in such room or building without the consent or permission of such justice or justices' if it appear to him or them that the ends of justice will bo best answered by so doing. Recognizances of Witnesses. — § 12. That it shall be lawful for any such justice or justices before whom any such witness shall be examined as aforesaid, to bind by recognizance (0 1) the prosecutor, and every such witness, to appear at the next court of competent criminal jurisdiction at which the accused is to be tried, then and there to prosecute, or prosecute and give evidence, or to give evidence, as the case may be, against the party accused, which said recognizance shall particularly specify the profession, art, mystery or trade of every such person entering into or acknowlediiin" the same, together with his christian and surname, and the township or place of his residence, or if his residence be in a city, town or borough, the recognizance shall also particu- larly specify the name of the city, town or borough, and when convenient so to do, of the street and the number (if any) of the house in which he resides, and whether he is owner ur tenant thereof, or lodger therein ; anu the said recognizance, being duly acknowledged by the person so entering into tk same, shall be subscribed by the justice or justices before whom the same shall be acknowledged, and a notice (0 2) thereof, signed by the said justice or justices, shall at the same time be given to the person bound thereby ; and the several recognizances so taken, together with the written in- formation (if any), the depositions, the statement of the accused, and the recognizance of bail (if any) in every sueli case shall be delivered by the said justice or justices, or ho or they shall cause the same to be delivered to the proper officer of the court in which the trial is to be hud, before or at the opening of the court on the first day of tlic sitting thereof, or at such other time as the judge, justice or person who is to preside at such court at the said trial shall order and appoint : provided always, that if any such witness shall Stif^tittn of me m^tt. 459 refuse or enter into or acknowledge such recognizance as aforesaid it shall be lawful for the justice or justices of the peace by his or their warrant (P 1) to commit him to the common gaol for the county in whicn the accused party is to l^e tried, there to be imprisoned and safely kept until after the trial of such accused party, unless in the meantime such witness shall duly enter into such recognizance as aforesaid before some one justice of the peace for the territorial clivision in which such gaol shall be situate : provided never- theless, that if afterwards, for want of sufficient evidence in that behalf, or other cause, the justice or justices before whom such accused party shall have been brought shall not commit him or hold him to bail for the offence with which he is charged, it shall be lawful for such justice or justices, or for any other justice or justices for the same territorial division, by his or their order (P 2) in that behalf, to order and direct the keeper of such common gaol where such wit- ness shall bo so in custody, to discharge him from the fame, and such keeper shall thereupon forthwith discharge him accordingly. UemanSing the Accused. — § 13. That if from the absence of witnesses, or from any other reasonable cause, it shall become necessary or advisable to defer the examination of the witnesses for any time, it shall be lawful to and for the justice or justices before whom the accused shall appear or be brought, by his or their warrant (Q 1) from time to time to remand the party accused for such time as by such justice or justices in their discretion shall bo deemed reasonable, not exceeding eight clear days at any one time, to the common gaol or house of correction or other prison, lock-up house, or place of security in the territorial division for which such justice or justices shall then be acting ; or if the remand be for a time not exceeding three clear days, it shall be lawful for such justice or justices verbally io order the constable, or other person in whose custody such party accused may then be, or any constable or person to be named by the said justice or justices in that behalf, to continue or keep such party accused in his custody, and to bring him before the same or such other justice or justices as shall be there acting at the time appointed for continuing such examination : provided .always, that any such justice or justices may order such accused party to be brought before him or them, or before any other justice or justices of the peace for the same terri- torial division, at any time before the expiration of the time for which such party shall be remanded, and the gaoler or officer in whose custody he shall then be, shall duly obey ■ i i*^*^^^! i i ■J HI WMn IMAGE EVALUATION TEST TARGET (MT-3) V. A :/ % % £/ /> ^^ c ^° *% 1.0 I.I 1.25 iti ^■28 |2.5 ^ 1^ III 2.2 2.0 I 40 U IIIIII.6 ^ r V y] >^ Photographic Sciences Corporation 33 WIST MAIN STIieT WIUTIR N.Y. I45M (7I6)I73-4S03 (i^°.■ in the said {county, |d charge, and be lay of . in il'f of aforesaid. J. S. [t.8.1 irrant. B. of the &c.) (yeoman lay of '^"^ 3n»iitt» of tfie ]9eace« 467 tiio year of our Lord , before me, W. S., Esquiie, mie of her Majesty's justices of the peace, in and for the (nninti/ or united counties, or as the case may he) of , who j^iiith that on the day of , (insert description of articles stolen,) of the goods and chattels of deponent, were feloniously stolen, taken and carried away, from and out of the (ihcelling-house, rfr.) of this deponent, at the (toicnshij), dtc.) aforesaid, by (some person or persons unknown, or name the jierson,) and that he hath just and reasonable cause to suspect, and doth suspect that the said goods and chattels, or some part of them, are concealed in the (dweUing-house, &c., of 0. D.) of in the said {county') (here add the causes of suspicion, what- eccr they may be). Wherefore, (he) prays that a search warrant mav be granted to him to search (the dwdling-hnuse, <£r.) of the saiil C. D. as aforesaid, for the said goods and chattels s^o felon- iously stolen, taken and carried away as aforesaid. Sworn before me the day and year first sibove mentioned, at in the said (county) of W. S., J. P. (E2.) Search Warrant. Province of Canada {County or united counties, or as the case may be,) of To all or any of the constables, or other peace officers, in the (county or itnited counties, or as the case may be) of : Whereas A. B., of the , of , in the said (county, ii'c.,) hath this day made oath before me the under- jijrned, one of her Majesty's justices of the peace, in and for the said (county, or nnitcd counties, or as the case may be,) of , tliat on the day of (™py information (IS far as j'lacc of supposed concealment ;) These are therefore in the name of our sovereign lady the Q,ueen, to authorise and require you, and each and every of you, with necessary and proper assistance, to enter in the day time into the said (dwell- Iwj house, &c,, of the said, itr.,) and there diligently search for the said goods and chattels, and if the same or any part thereof shall be found upon such search, that you bring the goods so lound, and also the body of the said C. D. before me, or some other justice of the peace, in and for the said (county or united counties, or as the case may be) of to be disposed of and dealt with according to law. Given under my hand and seal, at [county, &c.,) this day of our Lord, one thousand eight hundred and W. S., J. P. (F.) Certificate of Indictment being found. I hereby certify that at a court of (oyer and terminer, or gen , in the said , in the year of (Seal.) m u'l i"^ i :';'f. ill I ^iMM m mm Mm 468 3uuiiuu of tue peace* (i: , ii-i iti eral gaol delivery, or general sessions of the peace) holden in and for the (county or united counties, or as the case may be,) of , at , in the said (county, dr.,) on , a bill of indictment was found by the grand jury against A. B., therein described as A. B., late of , (tahotircr,) for that he (tfcc, stating shortly the oj^encc,) and that the said A, B. hath not appeared or pleaded to the said indictment. Dated this , day of one thousand eii'ht hundred and Z. X. Clerk of the crown or deputy clerk of the crown for the (county or wiited counties, as the case may he,) or Clerk of the peace of and for the said (county or united counties, as the case may he.) (G.) Warrant to Apprtliend t Person Indicted. Province of Canada : (County or united '\ To all or any of the constables, or oilier counties, or as the > peace officers, in the said (county or ease may be,) of j united counties, or as the case may LA of Whereas it hath been duly certified by J. D., cleric of the crown of (name the court) (or E. G., deputy clerk of the crown, or clerk of the peace, as the case may he) in and for tlie (counh or united counties, or as the case may be) of that (-) noon, iit , or before such other justice or justices of the peace for the same (rounfy or united cnuntirx, nr as the case mat/ he) as nn v then be there, to testify what he shall know concerning the said charges so made against the said A. B. as aforesaid. Given under (mi/) hand and seal, this day of the (county, &c.) aforesaid. ^ 3. S. in (L 3.) [L.8.] Warrant for a Witness in the First Instance. Province of Canada : (County or united ) To all or any of the constables or peace counties, or as the > officers in the said (^counties or vnited case may be) of ) comities, or as the case may he) of Whereas information has been laid before tlie undersigned, {one) of her Majesty's justices of the peace, in and for the said (county or united counties, or as the case may he) of , that {(Of., us in the sum.mons); and it having been made to appear to (me) upon oath, that E. F. of , (Jabom-ei-), is likely to give material evidence for the prosecution, and that it is probable that the said E.F. will not attend to give evidence unless com- pelled to do so. These are therefore to command you to bring and have the said E. F. before (me) on , at o'clock in the {/ore) noon, at , or before such other justice or justices of the peace for the same (counties or united counties, or as (he case may he) as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given under my hand and seal, this day of in the year of our Lord , at in the (county, dc.) afore- said. J. S. [l.s.] } . H'tt -5' " , mmJ. i V.' ■ ;!'■! '^•- '.'f :\\ M : Jlf't Mil !+■;.., :¥M .15.'-?M * ;i I :■ i ■ '■ r'l : h'r. \ 'J' :*■•.,; 472 Suntittu of tut ]|eace. (L 4.) TF«r;«?if of Commitment of a Witness for Refusing to be tSworUf or to give Evidence. Province of Canada : (Counfi/ or united i To all or any of the constables or other counties, or as the \ peace officers in the (county or united case may he) of ) counties, or as the case may be) of and to the keeper of the common gaol at , in the said (county or united counties, or as the case may he) of : Whereas A.B. was lately charged before , (one) of her Majesty's justices of the peace in and for the said (county or u.iited counties, or as the case may he) of , for that ((tc, an in the summons). And it having been made to appear to (mc) upon oath that E. F. of , was likely to give material evidence for the prosecution, (I) duly issued (my) summons to the said E. F. requiring him to be and appear before me on , at , or before such other justice or justices of the peace for the same (county or ^tnited counties, or as th case may he) as should then be there, to testify wlmt he should know concerning the said charge so made against the said A. B. as aforesaid. And the said E. F. now appear- ing before (me) (or being brought before (mc) by virtue of a warrant in that behalf, to testify as aforesaid,) and bein-T required to make oath or affirmation as a witness in that behalf, hath now refused so to do, (or being duly sworn as a witness doth now refuse to answer certain questions con- cerning the premises which are now here put to him, and more particularly the following) without offering any just excuse for such refusal. These are therefore to command you, the said constables, peace olficers, or any one of you, to take the said E. F. and him safely con- vey to the common gaol at , in ;ln> (county, &c.) aforesaid, and there to delivcf him to the keeper thereof, together with this precept ; and (/) do hereby com- mand you, the said keeper of the said common gaol to receive the said E. F. into your custody in the said common gaol, and him there safely keep for the space of days, for his said contempt, unless he shall in the meantime consent to be examined, and to answer concerning the premises ; and for your so doing, this shall be your sufficient warrant. Given under (rny) hand and seal, this day of in the year of our Lord , at , in the (county, &c.) aforesaid, J. S. Fl. 8,1 (M.) Depositions of Witnesses. Province of Canada : (County or united ) The examination of C. W. of , counties, or as the > (farmer,) and E. F. of (labourer,) case may he) of ) taken on (oath) this day of Sn^tittu ot tut ^tntt^ 473 , in the year of our Lord , at .in the (county, or as the case may he) aforesaid, before the undersigned, tone) of her Majesty's justices of the peace for the said {county or united counties, as the case may he), in the presence and hearing of A. B. who is charged this day before (?ne) for that he, th*^ said, A. B. at , (ttc. descrihiny the offence as in a warrant of commitment.) This deponent, C. D. upon his {oath) saith as follows : (d'c, x((din signed, (one) of her Majesty's justices of cusemayhe,)o( 3 ^^^^ peace, in and for the {county or united counties, or as the case may he) aforesaid, this day of in the year of our Lord , for that the said A. B., on » Ht , {dr., as in the caption 0/ the depositions). And the said charge being read to the said A. B., and the witnesses for the prosecution, C. D. and E. F being severally examined in his presence, the said A. B. is now addressed by me as follows : '• Having heard the evidence, do you wish to say any thing in answer to the charge ? You are not' obliged to say any thing, unless you desire to do so ; but whatever you say will be taken down in writing, and may be jrlven in evidence against you at your trial." Whereupon the said A. B. saith as follows : {Here state whatever the jwisojwr may say. and in his very icords as nearly as j^f^^^if^^'- ^^t '^'W* '0 iiijn it if he will.) A. B. Taken before me, at , the day and year first mentioned. J. S. (O 1.) Recognizance to Prosecute or give Evidence. Province oi" Canada : {County or united i Be it remembered, that on the counties, or as the > day of in the year of our Lord casemuyhe),'oi ) , C. D., of , in the of , in the {township) of , in the said {county) of , {farmer,) {or CD., of No. 2, street, , in the 60 »' I II 1 • i til. lili # f" fl ' . f : . J#'*l'ii'' l.'^^H yiili 474 3nntinu of tue ^tntt. town or city of , surgeon, of which said house he is tenant,) personally came hefore me, one of her Majesty's jus- tices of the peace in and for the said (county or counties, or is the case may be) of , and acknowledged himself to owe to our sovereign lady the dueen the sum of , of good and law- ful current money of this province, to be made and levied of his goods and chattels, lands and tenements, to the use rf our said lady the dueen, her heirs and successors, if he the said C. D. shall fail in the condition endorsed. Taken and acknowledged the day and year first above men- tioned, at before me. J. S. Condition to Prosecute. The condition of the within (or above) written recognizance is such, that whereas one A. B. was this day charged before me, J. S., justice of the peace within mentioned, for that (dr., as in the caption 0/ the depositions;) if, therefore, he, the said C. D. shall appear at the next court of oyer and terminer i,r general gaol delivery, (or at the next court of general or quar- ter sessions of the peace,) to be holden in and for the (count}] or united counties, or as the case may be) of ,* and there prefer or cause to be preferred a bill of indictment for the of. fence aforesaid, against the said A. B., and there also duly prosecute such indictment, then the said recognizance to be void, or else to stand in full force and virtue. Condition to Prosecute and give Evidence. (Same as the last form, to the asterisk,* and then thus : — "And there prefer or cause to be preferred a bill of indictment against the said A. B. for the offence aforesaid, and duly prosecute such indictment, and give evidence thereon, as well to the jurors who shall then enquire into tlie said oflfence, as also ti them who shall pass upon the trial of the said A. B., then the said recognizance to be void, or else to stand in full force and virtue.'' Condition to give Evidence. (Same as the hist form but one, to the asterisk,* and then (km:) " And there give such evidence as he knoweth upon a hill 01 indictment to lie then and there preferred against the said A, B., for the offence aforesaid, as well to the jurors who sliidl there enquire of the said oficnce, as also to the jurors who sluill pass upon the trial of the said A. B., if the said hill shall be found a true bill, then the said recognizance to be void, other- wise to remain in full force and virtue." (0 2.) Notice of the said Recognizance to he given to the Prosecu- tor and his Witness. Province of Canada : (County or united "j Take notice that you, C. D., of , counties, or as the V are bound in the sum of to ap- case may be) of ) pear at the next court of oyer and mizance to be 3nntittu of tHe ^tutt* 475 terminer and general gaol delivery, (or at the next court of general quarter sessions of the peace, in and for the (county/ or united counties, or as the case may be) of , to be nolden at , in the said {county, d-c.,) and then and there (prosecute a-nl) give evidence against A. B., and unless you then appear there, (prosecute) and give evidence accordingly, the recogni- zance entered into by you will be forthwith levied on you. Dated this day of , one thousand eight hundred and J. S. (P 1.) Commitment of a Witness for refusing to enter into the Recognizance. Province of Canada [Count!/ or united counties, or as the case may he) of To all or any of the constables or other peace officers in the said (county or dr.,) of , and to the keeper of the common gaol of the said (county or united counties, or as the case may he) at , in the said (county, or as the ease may he) of Whereas A. B. was lately charged before the undersigned, (or name of justice of the peace,) (one) of her Majesty's justices of the peace in and for the said (county, or dr.,) of , for that (cCr.. as in the summons to the loitucsa), and it having been made to appear to (mf) upon oath that E. F., of , was likely to o-ive material evidence for the prosecution, (1) duly issued tiny) summons to the said E. F., requiring him to be and appear before (me) on , at or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B. as aforesaid; and the s.aid £. F. now appearing before (me) (ov being brought before (me) by virtue of a warrant in that benalf to testify as aforesaid,) hath been now examined before (me) touching the premises, but being by (me) required to enter into a recognizance condi- tioned to give evidence against the said A. B., hath now refused so to do; these are therefore to command you the said con- stables or peace officers, or any of you, to take the said E. F. and him safely to convey to the common gaol at , in the {('ountj/, dr.), aforesaid, and there deliver him to the ''aid keeper thereof, together with this precept ; and I do hereby command you the said keeper of the said common ga^I to receive the said E. F., into your custody i?> the said common gaol, there to imprison and safely keep him until after the trial of the said A. B. for the offence aforesaid, unless in the meantime the said E. F. shall duly enter into such recognizance as aforesaid, in the sum of before some one justice of the peace for the said county or united counties, or as the case may be,) conditioned in the usual form to appear at the next court of (oyer and ter- ■M \n pii WJ' !■ I iWiV .•! :* ■! : \i^e M mm ! 47& tj'i^i^;! ■!',].; 'It-:-;! |i!; ,111 i :l ■it';. I fK-i 'ij.'i ,,;v,| ■■,.' '. . s^t- f (■.;«;i, 4 S^tttttftrfii of tf|( pe^ce< miner, or general gaol delivery, or general quarter sessions of the peace), to be holden in and for the said {county or iinitrd counties, or as the case may be,) of , and there to g'wQ evidence before the grand jury upon any bill of indictment which may then and there be preferred against the said A. 13. for the offence aforesaid, and also to give evidence upon the trial of the said A. B. for the said offence, if a true bill should be found against him for the same. Given under my hand and seal, this , day of ^ in the year of our Lord , at in the {cotmti/, dr.,) of aforesaid. J. S. [L. s,] (P. 2.) Subsequent Order to Discharge the Witness. Province of Canada : (^County or tinited ^ To the keeper of the common gaol, at counties, or as the > in the (^county) of aforesaid. case may be) of ) Whereas by (rny) order dated the day of (instant), reciting that A. B. was lately before then charged before (/>i<) for a certain offence therein mentioiud, and that E. F. having appeared before (inr), and being examintd as a witness for the prosecution in that behalf, refused to enter into a recognizance to give evidence against the said A. B., and] therefore thereby committed the said E. F. to your custody, and required you safely to keep him until after the trial of the said A. B. for the offence aforesaid, unless in the meantime he sliould enter into such recognizance as aforesaid. And whereas for want of sufficient evidence against the said A. B., the said A, B. has not been committed or holden to bail for the said offence. but on the contrary thereof has been since discharged, and it is therefore not necessary that the said E. F. should be detained longer in your custody. These are therefore to order and direct you the said keeper to discharge the said E. F. out of your custody, as to the said commitment, and suffitr him to ^ro at large. Given under my hand and seal this in the year of our Lord , at of aforesaid. day of , in th(; (county, dr.) J. S. [L.S,] (a.i.) Warrant Remanding a Prisoner, Province ok Canada : (County or nnitrd 1 To all or any of the constables or other count ies,orns the \ peace officers in the said (ronnti/ or casemaybr) of j united counties, or as the case may Ik) of , and to the keeper of the (common gaol or lock-vp hnia) at , in the said (county, tfr.,) of Whereas A. B. was this day charged before the undersigned Snntittn of t)|( ]9eaee. 177 le undersiirned (one) of her Majesty's justices of the peace in and for the said (count'/ or united counties, or as the case may he) of » for that (<£" ? «s iM <7ic warrant to apprehend,) and it appears to (m^i) to be necessary to remand the said A. B. These are therefore to command you the said constables or peace officers, or any of vou, in her Majesty's name, forthwith to convey the said A. B. to the (common gaol or locJc-^ip hoiiae), at , in the said (counti/^, (^'c-i) and there to deliver him to the keeper thereof, together with this precept ; and I hereby command you the said keeper to receive the said A. B. into your custody in the said (common gaol or lock-up house), and there safely keep him until the day of (^instant), when I hereby command vou to have him at , at o'clock in the (fore) noon of the same day before (we) or before some other justice or justices of the peace for the said (connti/ or united counties, or as the case may U') as may then be there, to answer further to the said charge, and to be further dealt with according to law, unless you shall be otherwise ordered in the meantime. Given under my hand and seal, this day of , in the year of our Lord, , at , in the {county, dr.,) of aforesaid. J. S. Tl.s.] (a 3.) Jtecognizance of Bail instead of Remand, on an Adjourn- ment of Examination. Province of Canada : (Coitnti/ or united ) Be it remembered, that on the coHiiflcs, or asthe \ day of , in the year of our Lord ammaybe)oi ) , A. B. of [lalourer), L. M. of » (_7 /'ore?), and N. O. of , (/>«^r/(yv), personally came before me, {ime) of her Majesty's justices of the peace, for the said (county or united counties, as the case may be), and severally acknowledged themselves to owe to our Uuly the tlueon ilie several sums following, that is to say ; the said A. B. the sum of , and the said L. I\L and N. O. the sum of , each, of good and lawful current money of this province, to be made and levied of their several goods and chiittels, lands and tenements respectively, to the U3»' o( our said lady the Uueen, her heirs and successors, if he the said A. B. fail in the condition endorsed. Taken and acknowledged the day and year first above men- tioned, at before me. J. S. CONDITION. The condition of the within written rerognizance is such, that whereas the within bounden A. B. was this day (^or, on last past) charged before me for that {dr. as in the warrant): and whereas the examination of the witnesses for the prosecution in this behalf is adjourned until the day *H II ' I 1 't' *?a 1 i :4 1 k ' U H 'vi '^vi rjMt..«- mil it- if' '^ tlXiJ U; 4^1 urn ^i •I' 1 ;. •! ' '■:,i !!!;■■ Hf;; ;|mV^-'^ {' : ;!' • !■■'■ :': I; 478 3lttstft(0 of t|ie )9ea(ce» of (instant) ; if therefore the said A. B. shall appear before me on the said day of (^instant), at o'clock in the forenoon, or before such other justice or justices of the peace for the said (comity or united counties) of ^j the case may he) as may then be there, to answer (/wr//ter) to the said charge, and to be further dealt with according to law, then the said recognizance to be void, or else to stand in full force and virtue. (a. 3.) Notice of Recognizance to he given to the Accused and his Sureties. Province of Canada : Count!/ or united "i Take notice that you A. B. of , arc counties, or astlie \ bound in the sum of , and your case may be) o\ ) sureties L. M. and N. O. in the sum of each, that you A. B. appear before me J. S., one of her Majesty's justices of the peace for the (j:ounfy or nnital counties, or as the case may he) of , on , the day of (instant,) at o'clock in the (fore) noon, at or before such other justice or justices of the same (county or united counties, or as the case may hS) as may bo then there, to answer (further) to the charge made against you by C. D., and to be further dealt with according to law ; and un- less you A. B. personally appear ace rdingly, the recognizance entered into by yourself and suretir will be forthwith levied on you and them. Dated this day of , one thousand eight hun- dred and J. S. (a. 4.) Certificate of Non-appearance to he endorsed on the recog- nizance. I hereby certify that the said A. B. hath not appeared at the time and place, in the above condition mentioned, but therein hath made default, by reason whereof the within written rccosT- nizance is forfeited. (R. 1.) J.S. 'Uiihcccf the county • .,, -I Warrant to Convey the Accused befor. in which the offence was , Province of Canada : ( County or united ) To all or any of ; constables, or other counties, or as the > peace officers, in the naid (counti/ or casema>/be)o( \ united counties, or as the case may hr) of '. Whereas A. B. of {labourer), hath this day been Su0tfee0 of tfie ]9eate. 479 charged before the undersigned (one) of her Majesty's justices of the peace, in and for the {county or iinited counties, or as the case may be) of , for that ((fee. as in the warrant to apprehend). y^nd whereas (1) have taken the deposition of C. I), a witness examined by (me) in this behalf, but inasmuch as (/) am in- formed that tne principal witnesses to prove the said offence against the said A, B. reside in the (county or tinited counties, as tfie case may he) of where the said offence is alleged to have been committed; these are therefore to command you, in her Majesty's name, forthwith to take and convey the said A. B. to the said (county or united counties, or as the case may he) of and there carry him before some justice or justices of the peace in and for that (county or counties, as the case may he) and near unto the (toivnship of ) where the offence is alleo'ed to have been committed, to answer further to the said charge before him or them, and to be further dealt with accord- iii(T to law ; and (/) hereby further command you to deliver to the said justice or justices the information in this behalf, and also the deposition of C. D. now given into your possession for that purpose, together with this precept. Given under my hand and seal, this day of , in the year of our Lord , at , in the (county, &c.) of aforesaid. J. S. [L.S.] (R2.) Receipt to be given to the Constable by the Justice for the County in lohich the offence was committed. Province of Canada : (County or united i I, J. P. one of her Majesty's justices of counties, or as the > the peace for the (county, dr.) of , case may he) of ) hereby certify that W. T., constable or peace officer, of the (county or united counties, as the case may i,.) of , has on this day of , one thousand eight hundred and , by virtue of and in obedience to a warrant of J. S., Esquire, one of her Majesty's justices of the peace in and for the (county or united counties, or as the case may be) of produced before me, one A.B. charged before the said J. S. with having ( of in the year of our Lord fa.sc mai/ be) of ) A. 13. of , (^Idhonnr,) L. M. of , Q/roar,) and N. 0. of , (fjufrhrr,) personally cainu before («.s) tlie undersigned, two of lier Majesty's justices of the peace for tlie said (^cuunti/ or iniitcd coiiiifirs, or an tlic ,7,,v,. mai/ h(\) and severally acknowledged themselves to owe to our hidy the Queen, the several sums following, tliat is to say: the suid A. B. tlie sum of , and the said L. M. and N. (). 1),^ sum of , each, of good and lawful current money of thj;, province, to be made and levied of their several goods and chattels, lands and tenements respectively, to the use of our said lady tlie Glucen, her heirs and successors, if he the said A. B. fail in the condition endorsed. Taken and acknowledged the day and year first above men- tioned, at before us. J.S. J-N. Condition. The condition of the within written recognizance is sucli, that whereas the said A. B. was this day charged before (;(,<.) the justices within mentioned for that (<■) of , and there surrender himself into the custody of the keeper of \\w (coinmon ijaol or lorh-iip lioiisc) there, and plead to such indict- ment as may be found against him by the grand jury, for and in respect to the charge aforesaid, and take his trial upon tlie sann', and not depart the said court without leave, then the said n.- cognizance to be void, or else to stand in full force and virtue. (S3.) Notice of the said Recognizance to he given to the Accmd and his Bail. Take notice that you A. B., of , are bound in the sum of , and your sureties (L. M. and iV. 0.) in the sum of , each, tl;at you A. B. ai)pear ((fv. ns In the. cowllllon nfth rccoguirMiirr,) and not depart the said court without leav ; and unless you the said A. 13., personally appear and plead, and take your trial accordingly, the recognizance entered into by you and your sureties shall be forthwith levied on you and them. Dated this day of , one thousand eight hundred and J. S. Stintittn of tfie ]9e«cn 481 (S 3.) Warrant of Deliverance, on Bail being given for a Prisoner already Committed. puoviNCE OF Canada : {County Of united ^ To the keeper of the common gaol of the counties, or as the > {counti/ or united counties, or as the case case may he) of ) may he) at , in the said {county or united counties, or as the case may he) of Whereas A. B., late of , (lahourer) hath before (us,) (two) of her Majesty's justices of the peace in and for the said (counties or united counties, or as the case may he) of , entered into his own recognizance, and found sufficient f^'ire ies for his appearance at the next court of oyer and terminer or creneral gaol delivery (or court of general quarter sessions of tiie peace) to be holden in and for the {county or united counties, or as (he case may he) o( , to answer our sovereign ladv the Queen, for that (({t., as in the commitment), for which he was taken and committed to your said common gaol. These are ilierefore to command you, in her said Majesty's name, that if the said A. B. do remain in your custody in the said common gaol for the said cause, and for no other, you shall forthwith suffer him to go at large. Given under our hands and seals, this day of , in the year of our Lord , at , in the (county, d-c.) J. S. [L.S.] J. N. [L.S.] (T.l.) Warrant of Commitment. Province of Canada : (County or united ) To all or any of the constables, or countics,orasthe \ other peace officers, in the (coM?j/y or case may 6c) of ) united counties, or as the case may be) of , an(l to the keeper of the common gaol of the {county or united counties, or as the case may he) at , in the said [mntti/, ({•(".) of Whereas A. B. was this day charged before (we) J. S. {one) of her Majesty's justices of the peace in and for the said Itvunti/, or united counties, or us the case may he)o( , on the oath of C. D., of (farmer,) and others, for that, ((tc, Ming shortly the offence) ; these are therefore to command you the said constables or peace officers, or any of you, to take the said A. B., and him safely to convey to the common gaol at aforesaid, and there deliver him to the keeper thereof, top[ether with this precept ; and I do hereby command you the said keeper of the said common gaol to receive the said A. B. into your custody in the said common gaol, and there safely to keep him until he shall be thence delivered by due course of law. 61 iv fi; 'f \m :,H 1. '/ ^OMf*: m >ili'll»i^i» \m 'Fl j'M'. ff^H,r-' '■\ i ; 'h : it.- mm 482 3^tt0tfce0 of tfie ]9eacr. Given under my hand and seal, this day of , jj, the year of our Lord , at , in the (county, «(r.,) of aforesaid. J. S. rL.s.l (T. 2.) Gaoler 9 receipt to the Constable for the Prisoner, and Justice'? order thereon for the payment of the Constable's expenses in executing the Commitment. I hereby certify tliat I liave received from W. T., constable, of the {counti/, > I I '.. I mfm ■ CJf proceed.— frcijuently lubt whether 2 for fear of 1 sec. of the ircss view of on reference the act to be of common ule on such lot be done, such justice ards legally iict rcciuircd. inst a raagis- the act done or not, hut vc or corrupt tter case, the e party com- for it must wilful misbe- ation against Burr. 556: ust make a .s proceeding! lomplaint'd of before hand, !. j|- A. (312. ays — that is, 3tt0lfce0 of tiie ^tutt. 485 criminally and civilly ; for before the court will f»rant an in- formation, they will reciuiro the party to rolin((uish his oioil action, if 'iny such is couuneucod — Ji. r. Fulditit/, - liurr. 719. ; a'iy 10 v., c. 180, entitled " An Act to protect Justices of the Peace in Upper Canada from Vexatious Actions," reciting that it is expedient to protect justices of the peace in Upper Canada in the execution of their duty : it is therefore enact- ed, that every action hereafter to be brought against any justice of the peace in Upper Canada for any act done by him in the execution of his duty as such justice, with respect to any matter within his jurisdiction as such justice, shall be an action on the case as for a tort ; and in the decla- ration it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause ; and if at the trial of any such action, upon the general issue being pleaded, the plaintiff shall fail to prove such allega- tion, he shall be nonsuit, or verdict shall be given for the defendant. § 2. That for any act done by a justice of the peace in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction ! r ^'iAI ; n 486 ^n^tittu of tue ^tutt^ : ^ M«!'' , '..TtHi- j f. I ''■'[: : ■f..!i : or order made, or warrant issued by such justice in any such matter, may maintain an action against such justice in the same form and in the same case as he might have done before the passing of this act, without making any allotra- tion in his declaration that the act complained of was done maliciously and without reasonable and probable cause : provided nevertheless, that no such action shall be brought for any thing done under such conviction or onler until after sucli conviction or order shall have been quashed either upon : ipeal or upon application to one of the su! perior courts of common law for Upper Canada ; nor shall any such action be brought for any thing done under any sucli warrant which shall have been issued by sucli justice to procure the appearance of such party, and whicli shall have been followed by a conviction or order in the same matter, until after such conviction ov order shall have been so quashed as aforesaid ; or if such last mentioned war- rant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable otfence, nevertheless if a sunnnona were issued previously to such warrant, and such summons were served upon such person, either personally or by loavinrr the same for him with some person at his last or most usual ph^e of abode, and he did not appear according to the exi^'encA of such summons, in such case no such action shall l>o main- tained against such justice for any thing done undrr smli warrant. § 8. i'hat where a conviction or order shall bo made Iiv one or nioro justice or justices of the peace, and a warrant of distress or of commitment shall be granted thenon liv some other justice of the peace bond fide and witliuut collii- sion, no action shall be brought against the justice who s^j granted such warrant by reason of any defect in such con- viction or order, or for any want of jurisdiction in the justiiv or justices who made the same, but the action (if any) ^\\c}\ be brought against the justice or justices who made such conviction or order. § 4. And whereas it would conduce to the advancement of justice, and render more effective and certnin tlie perform- ance of the duties of justices, and give them protectioiiin the performance of the same, if some simple means, not at- tended with much expense, were devised by which the local- ity of any act to be done by such justice ; iight be considoroil and adjudged by a court of competent jurisdiction, and .such justice enabled and directed to perform it without risk of any action or other proceeding being brought or had aguiust 3tiniiten of tue ]|eatr. 487 him : it is therefore enacted, that in all cases where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices, it shall be lawful for the party requiring such act to be done to apply to either of the superior courts of common law in Upper Canada, or to the judge of the county court of the county or united counties in which such justice or justices may reside, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also the party to be affect- ed by such act, to shew cause why such act sliould not be done : and if after due service of such rule good cause shall not be shewn against it, the said court may make the same absolute, with or without or upon payment of costs, as to them shall seem meet ; and the said justice or justices upon bcin*^ served with such rule absolute shall obey the same, and shall do the act required ; and no action or proceeding whatsoever shall be commenced or prosecuted against such justice or justices, for having obeyed such rule and done such act so thereby required as aforesaid. ^ a. That in all cases where a warrant of distress or Avar- rant of commitment shall be granted by a justice of the peace upon any conviction or order which, either before or after the f^ranting of such warrant, shall have been or shall be con- firrard upon appeal, no action shall be brought against such justice who so granted such warrant, for any thing which may have been done under the same, by reason of any defect in such conviction or order. i; 0. That in all cases where by this act it is enacted that no action shall be brought under particular circumstances, if anv sucli action shall bo brought, it shall be lawful for a jud'^e of tlie court in which the same shall bo brought, upon application of the defendant, and upon an affidavit of facts, to set aside the proceedings in such action, with or without costs, as to hiir hall seem meet. ^ 7. That no action shall be brought against any justice of the peace for any thing done by him in the execution of his ollice, unless the same be commenced within niv calciuhtr months next after the act complained of shall have been com- mitted. ;, S. That no such action shall be commenced against any siicli justice of tile peace until one calendar mouth at least after a notice in writing of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to commence such action, or by his attorney or agent, in which said notice the cause of action, and the court in which the same is intended to be iiM (K *T,| ■^!iH fa ■■I: ■: '■ i ' •} i; /■■*«f'»^h*1i!P >)M ■I * i ; -K \n M\:' 1 1 • I 488 3tt»titt» of Ifie ^tutt^ iifii^ iw.w^ wmm i' '■"1 ■ brought, shall be clearly and explicitly stated ; and upon the back thereof sha'l be endorsed the name and place rf abode of the party so intending to sue, and also the name and place of abode or of business of the said attorney or agent, if such notice have been served by such attorney or agent. § 9. That in every such action the venue shall be laid in the county where the act complained of was committed, or in actions in county or division courts the action must be brought in the county or division within which the act com- plained of was committed or the defendant resides, and the defendant shall be allowed to plead the general issue therein, and to give any special matter of defence, excuse or justifi- cation in evidence under such plea, at the trial of such ac- tion : provided always, that no action shall be brought in any such county or division court against a justice of the peace for any thing done by him in the execution of his of. ficc, if sucli justice shall object thereto ; and if within six days after being served with a notice of any such action, such jus- tice or his attorney or agent, shall give a Avritten notice to the plaintiff in such action that he objects to being sued in such county or division court for such cause of action, no proceedings afterwards shall be had in such county or division court in any such action, but it shall not be necessary to give another notice of action in order to sue such justice in any other court ; provided secondly, and it is hereby declared and enacted, that the several county courts in Upper Canada shall have jurisdiction and shall hold plea in all suits or actions to be brought against justices of the peace for any thing done or pretended to be done by them in the execution of their office, when the damages claimed shall not exceed the sura of thirty pounds. § 10. Tliat in every such case after notice of action shall be so given as aforesaid, .and before such action shall be commenced, such justice to whom such notice shall be given may tender to tlie party complaining, or to his attorney or agent, such sum of money as he may tliink fit as amends for the injury complained of in such notice ; and after such action shall have been commenced, and at any time before issue joined therein, such defendant, if he have not made such tender, or in addition to such tender, shall be at liberty to pay into court such sum of money as he may think fit, and which said tender and payment of money into court, or either of them, may afterwards be given in evidence by the defen- dant at the trial under the general issue aforesaid ; and if the jury at the trial shall be of opinion that the plaintiff is not entitled to damages beyond the sums so tendered or paid SIttfiitftfs of tHe ]9raee. 489 into court, then they shall give a verdict for the defendant, and the plaintiff shall not be at liberty to elect to be non- suited, and the sum of money, if any, so, paid into court, or go much thereof as shall be suflScient to pay or satisfy the defendant's costs in that behalf, shall thereupon bis paid out of court to him, and the residue, if any, shall be paid to the plaintiff; or if, where money is so paid into court in any such action, the plaintiff shall elect to accept the same in satisfaction of his damages in the said action, he may obtain from any judge of the court in which such action shall be brought, an order that such money shall be paid out of court to him, and that the defendant shall pay him his costs to be taxed, and thereupon the said action shall be determined, and such order shall be a bar to any other action for the same cause. § 11. That if at the trial of any such action the plaintiff shall not prove that such action was brought within the time hereinbefore limited in that behalf, or that such notice as aforesaid was given one calendar month before s^?h action Tvas commenced, or if he shall not prove the cause of action stated in such notice, or if he shall not prove that such cause of action arose in the county or place laid as venue in the margin of the declaration, or (when such plaintiff shall sue in the county or division court) within the county or united counties for which such court is holden, then and in every such case such plaintiff shall be nonsuit, or the jury shall give a verdict for the defendant. § 12. That in all cases where the plaintiff in any such action shall be entitled to recover, and he shall prove the levying or payment of any penalty or sum of money, under any conviction or order as parcel of the damages he seeks to recover, or if he prove that he was imprisoned under such conviction or order, and shall seek to recover damages for any such imprisonment, he shall not be entitled to recover the amount of such penalty or sum so levied or paid, or any sum beyond the sum of two pence as damages for such imprison- ment, or any costs of suit whatsoever, if it shall be proved that he was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so ordered to pay, and (with respect to such imprison- ment) that he had undergone no greater punishment than that assigned by law for the offence of which he Avas so con- victed, or for non-payment of the sum he was so ordered to pay. § 13. That if the plaintiff in any such action shall recover a verdict, and the defendant shall allow judgment to pass against him by default, such plaintiff shall be entitled to costs Id such manner as if this act had not been passed ; or if in 62 ^:?1 ii'lIP :\ n 490 Stintittu of tue ^tmt. I ; ' ' I' *i Hi 'i ! • T I ' III ■ ' if '■ : J (('•., ■ Iji'"'! -1 i ) i' ! ■ ■ " ■ i 'i^ . i : i .k , iu III' ' iH ;! "'■'J "^ J I Iff u Buch case it be stated in the declaration, or in the summons and particulars in the division court, if he sue in that court that the act complained of was done maliciously and without reasonable and probable cause, the plaintiff, if he recover a verdict for any damages, or if the defendant allow judgment to pass against him by default, shall be entitled to his full costs of suit to be taxed as between attorney and client ; and in every action against a justice of the f eace for any thini* done by him in the execution of his office, the defendant, if he obtain judgment upon verdict or otherwise, shall in all cases be entitled to his full costs in that behalf, to be taxed as between attorney and client. § 14. That this act shall commence and take effect on the first day of July, in the year of our Lord one thousand eirrht hundred and fiftj -three. § 14. That from and after the time this act shall so com- mence and take effect as aforesaid, the following statutes so far as relates to actions against justices of the peace shall be and shall be deemed and taken to be repealed in so far as regards Upper Canada, that is to say, so much of an act of the parliament of this province made and passed in the session thereof held in the fourteenth and fifteenth years of her Majesty's reign, intituled, An Act to amend and con- solidate the Laiv3 affording protection to Magistrates and others in the performance of public duties, and all other act or acts or parts of acts which are inconsistent with the pro- visions of this act ; save and except so much of the said acts as repeal any other acts or parts of acts, and also except as to proceedings then pending, to which the same or any of them may be applicable. §16. That this act shall apply for the protection of all persons for any thing done in the execution of their office, in all cases in which, by the provisions of any act or acts of parliament, the several statutes or parts of statutes by this act repealed would have been applicable if this act had not been passed. § 17. That this act shall apply to Upper Canada only ; and that the word "county" in this act shall include unions of counties for judicial purposes. Justice s Fees. By 14 & 15 v., c. 119, the following fees and no more are authorised to be taken by justices of the peace, or by their clerks : §2. For information and warrant for apprehension, or for an information and summons for assault, trespass or other misdemeanor 2 6 if 3n»tittu of ti|( ptace. For each copy of summons to be served on de- fendant or defendants For a subpoena, only one on each side is to be charged for in each case which may contain any number of names; and if the justice of the case shall require it, additional swi/^ttjuis shall be issued without charge For every recognizance, only one to be charged in each case For every certificate of recognizance under the act of Upper Canada, *7W.IV.,c. 10 For information and warrant for surety of the peace or good behaviour, to be paid by complainant For warrant of commitment for default of surety to keep the peace or good behaviour, to be paid by complainant § 3. In all case» of Conviction where the Fees are not expressly prescribed by any statute other than the statute hereinbefore repealed, *4 W. IV., c. 17. For information and warrant for apprehension, or for information and summons for service For every copy of summons to be served upon defendant or d"''endants For every suhpana to a witness (as provided in the 2nd § of this act) For hearing and determining the case For warrant to levy penalty For making up every record of conviction when the same is ordered to be returned to the sessions, or on certiora ri Provided always, that in all such cases as admit of summary proceedings before a justice of the peace, and wherein no higher penalty than jL'5 can be imposed, for the conviction there shall he only charged And for the warrant to levy the penalty And in all cases where persons are subpaniacd to give evidence before justices in case of assault, trespass or misdemeanor, si'ich witness shall be entitled, in t! " discretion of the magistrate, to re- ceive for every day's attendance when the distance travelled in coming to and returning from such adjudication does not exceed ten miles And for each mile above /('/J Everj' bill of costs when demanded to be made out in detail Copy of any other paper connected with any trial, and the minutes of the same if demanded, every folio of 100 words 491 6 6 1 3 1 3 a 6 3 6 2 6 6 6 2 6 1 3 5 2 6 1 3 2 6 3 6 G m. > ';v,i 7^ u:! :: 6X * ''d'L^ 492 ^nntittu of t;$e ]9(ace« § 6. This act not to authorise justices claiming fees of any description connected with cases above the degree of misde- meanor (a) ; nor shall witnesses in such cases be allowed any thing for their attendance or travel, except under the order of the court, before which the trial of the case shall he heard, Commitment for Insulting a Justice of the Peace in the execution of his office. Province of Canada : County of » ? To all or any of the constables or peace to wit : \ officers in the said county of , and to the keeper of the common gaol of the said county of at , in the said county of Whereas A. B. being personally present this day at before me, J, C, Esq., one of her Majesty's justices of the peace in and for the county of , to answer and make his defence to a certain information before exhibited against him [state the offence,'] and being so personally pre- sent before me, liath 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 such justice of the peace as aforesaid [by accusing me of parti- ality and injustice in the execution of my office [or as th. case may he. ] 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 be- haviour — that is to say, two sufficient sureties to become bound with him in a recognizance in the sum of each, conditioned for the personal appearance of the said A. B. at the next general quarter sessions of the peace to be holden in and for the said county, and that in the meantime he should be of good behaviour ; but the said A. B. hath refused to find sureties and to become bound in such recognizance as aforesaid : these are therefore to command you the said constables and peace officers, or any of you, to take the said A. B. and him safely to convey to the common gaol of the said county at , in the said county, and there deliver him to the keeper thereof 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 common gaol, and him there safely to keep until he find such sureties and enter into such recognizance as aforesaid, or be from thence otherwise delivered in due course of law. Given under my hand and seal this day of , in tlie year of our Lord 185 , at in the county of aforesaid. Commitment for a Time certain. Province of Canada : County of , ) To all or any of the constables or peace to wit. ) officers in the said county of and to the keeper of the common gaol of the said county of at (a) No fees are allowed to justice in cases of felony. aittlienflr ^mvctitvn. 493 Whereas A. B. stands convicted before me (or us) one (or two) of her Majesty's justices of the peace for the said county of upon my (or our) view of insolent and contemptuous behaviour towards me (or ws) the said justice (or justices) this day of 185 , and in my (or our) presence while being and acting in the due execution of my office as such justice of the peace, as aforesaid (or our respective offices of justices of the peace as aforesaid), and obstructing me (or us) in the due execution of the same, against the peace of our said lady the Queen. These are therefore to require and command you the said constables or any of y^^f forthwith to apprehend, take and convey the said A. B. to the common gaol (a) of the said county of at in the said county, and to deliver him to the keeper thereof together with this warrant : and you the said keeper are hereby commanded by me (or us) the said justice (or justices) to receive and detain the said A. B. in your custody in the said common gaol, for the space of (six hours, or such other reasonable time as the justice, or justices may see ft), from the time of delivery of the said A. B. into your custody under this warrant, and for his offence aforesaid, whereof he stands convicted as aforesaid. Given under my hand and seal, &c. Notice of Motion for leave to file a Criminal Information against a Justice. To C. A., Esquire, one of her Majesty's justices of the peace in and ior the county of Take notice, that I shall move her Majesty's Court of dueen's Bench, at Toronto, on the day of next term, or so soon after as couisel can be heard, for leave to file a criminal information against you in the crown office there for misconduct in your office 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 10 be committed to the common gaol at in the snid county, and there to be detained for d long space of time, to wit, for the space of days, on a supposed charge of Dated, &c. Yours, &c. A. B. JUVENILE OFFENDERS. Act for the more speedy Trial and Punisliment of — 20 v., c. 29. (h) § 1. Every person who shall subsequently to the passing of this act be charged with having committed, or having attempted to commit, or with having been an aider, abettor, counsellor, or procurer in the commission of any offence now, (a) Or the offender may be committed to the lock-up house, under the 10 k 11 v., c. 41, but not exceeding 24 hours, see title " Lock-up House.'" (&) This act is general, and relates to both sections of the province. rf;'''f^; ' ■! I-. M *i !4iP b*'. ill rV mmi ■ ■ 'U U : :; ■•! 494 SIttiieniU 4^ee^n)ieir0. or hereafter by law deemed simple larceny, or punishable as such and whose age at the period of committing such offence shall not. in the opinion of the justice or justices before •whom brought, exceed the age of sixteen years, shall, upon conviction, upon confession or proof before two or more justices in open court, be committed to the common gaol or house of correction within the jurisdiction of such justices there to be imprisoned with or without hard labour, for any term not exceeding tlu'ee calendar months, or in the discretion of such justices shall forfeit and pay such sum not exceeding £5 as they shall adjudge : provided that if such justices upon the hearing, shall deem the offence not proved, or that it is inexpedient to inflict any punishment, they shall dismiss the party charged on finding surety or sureties for future good behaviour, or without such sureties, and then make out and deliver to the party charged, a certificate under their hand of such dismissal, in the form or to the eflect in the schedule: provided also, that if the justices shall be of opinion, before the party charged shall have made his or her defence, that the charge is a fit subject for prosecution by indictment, or if the party charged upon being called upon to answer the charge, shall object to summary trial under this act, such justices instead of adjudicating shall deal with the case as if this act had not passed. § 2. The justices before whom any person shall be charged and proceeded against under this act before such person shall be asked whether he or she has any cause to shew why he or she should not be convicted, shall say to the person char^eJ these words, or words to the like effect : "We shall ha-f tu hear what you wish to say in answer to the charge again>t you ; but if you wish to be tried by a jury, you must object now to our deciding upon it at once," and if such person, on parent or guardian of such person, shall then object, such person shall bo dealt with as if this act had not been passed. § 3. Any tAVO or more justices of the peace [for any district in Lower Canada] or for any city, county, or union of counties in Upper Canada sitting in open court, before whom any such person charged Avith any offence punishable under this act | shall be brought or appear, are hereby authorised to bearai determine the case under the provisions of this act: provided I always, that [the recorder or inspector and superintendent of police, of either of the cities of Quebec, or Montreal, the sheriff" of any di^:crict in Lower Canada, other than the districts of Quebec and Montreal, any deputy sheriff in the! district of Gasp^] any judge of a county court in Upper I a^tttieniie 0iretilierfi(* 495 Canada, being a justice of the peace, any recorder of a city in Upper Canada being a justice of the peace, any police jjjggistrate in Upper Canada sitting in open court, and any stipendary magistrate in Upper Canada sitting in open court, and having by law the power to do acts usually required to be done by two or more justices of the peace, shall and may within their respective jurisdictions hear and determine every charge under this act, and exercise all the powers herein contained as fully as two or more justices of the peace can or may do by virtue of this act. § 4. Relates exclusively to Lower Canada. § 5. A certificate of dismissal, or a conviction under thi3 act shall be a release from all further proceedings for the same cause. § 6. Where any person whose age is alleged not to exceed sixteen years shall be charged with any such offence on the oath of a credible witness, before any justice of the peace, such justice may issue his summons or warrant to summons or to apprehend the person so charged, to appear before any two justices of the peace, at a time and a place to be named in such summons or warrant. § 7. Any justice, or justices if he or they think fit, may remand for further examination or for trial, or suffer to go at lar^e upon his or her finding sufficient surety or sureties, any such person charged as aforesaid ; and every such surety shall be bound by recognizance, to be conditioned for the appearance of the party before the same or some other justice or justices for further examination, or for trial before two or more justices of the peace as aforesaid ; or for trial at some superior criminal court, as the case may be ; and every such recognizance may be enlarged from time to time by any such justice or justices to such further time as he or they shall appoint. Every such recognizance which shall not be enlarged shall be discharged Avithout fee or reward when the party shall have appeared according to the condition thereof. § 8. Every fine imposed under this act shall be paid to the justices imposing the same, or to the clerk of the recorder's court, clerk of the county court, or clerk of the peace, as the case may be, and by him paid over to the county treasurer for county purposes if the same have been imposed in Upper Canada. § 9. It shall be lawful for any justice by summons to require the attendance of any person as a witness upon the hearing of any case before two justices under the authority of this act at a time and place to be named in such summons ; ^■L U ■ 'JB ■> t ■m mm n ■f i ;,;. » ' : (', ^Klk ii 11^^ ^■ Hii mf U'- mm ;■ ■ ?« 1^ 496 aitttienflf ^fUtOftvn* and may bind by recognizance all persons whom he may con- sider necessary to be examined touching the matter of such charge, to attend at the time and place to be appointed bv him, and then and there to give evidence upon the hearing of such charge : and in case any person so summoned or required or bound as aforesaid, shall neglect or refuse to attend, then upon proof of his having been duly summoned as hereinafter mentioned or bound by recognizance as aforesaid, it shall be lawful for either of the justices before whom such person ought to have attended to issue a warrant to compel his appearance as a witness. § 10. The summons may be served by delivering a copy thereof to the party, or to some inmate at his usual place of abode. § 11. The justices before whom any person shall be sum- marily convicted of any such offence as aforesaid, may cause the conviction to be drawn up in the form set forth in the schedule ; or in any other form of words to the same effect. § 12. No such conviction shall be quashed for want of form or removed by certiorari into any superior court ; and no ivar- rant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. § 13. Such conviction and recognizances to be forthwith I transmitted to the clerk of the peace for the city, county or union of counties, wherein the offence was committed; and said clerk of the peace shall transmit to the provincial secretarv a quarterly return of the names, offences and punishments, mentioned in the convictions, with such other particulars as may from time to time be required. § 14. No conviction under this act shall be attended witli forfeiture, and whenever any person shall be deemed guilty under this act it shall be lawful for the presiding justices to order restitution of the property in question to the owner or his representatives : and if not forthcoming, the same jus- tices, whether they award punishment or dismiss the com- plaint, may inquire into and ascertain the value thereof in money, and if they think proper, order payment of such money to the owner, by the party convicted, either at one time, or by instalments, at such periods as the court may deem reasonable ; and the party shall be liable to be suel for the same as a debt, with costs. 15. Whenever any justices of the peace shall adjudge any offender to forfeit and pay a pecuniary penalty under th act, and such penalty shall not be forthwith paid, it shall be I m I 3n\)tnilt ^ftttOftvu* 497 shall be sum- lid, may cause t forth in the he same effect, r want of form, rt; andrl0^va^ reason of any that the party valid conviction je attended vfitb ,e deemed guilty .ding justices to to the o\Ynor or •, the same jus- iismiss tlie corn- value thereof in payment of suck [ed, either at one |s the court may liable to be sucl lawful for such justices, if they shall deem it expedient, to appoint some future day for payment, and to order the of- fender to bo detained in safe custody until the day so ap- pointed, unless such offender shall give security to the satis^ faction of such justices for his or her appearance on such (lay ; such security to be taken by way of recognizance or otherwise, at their discretion : and if at the time appointed such penalty shall not be paid, it shall bo lawful for the same or any other justices of the peace, by warrant under their hands and seals, to commit the offender to the common gaol or house of correction within their jurisdiction, for any time not exceeding three months, reckoned from the day of adju- dication : such imprisonment to cease on payment of the penalty. 16. Justices of the peace, before whom the party shall be tried, are authorised at their discretion to order payment to the prosecutor and witnesses of such sums of money as to them shall seem reasonable, sufificient to reimburse the expenses they shall severally have incurred in attending before them, and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time, and to order payment to the constables and other peace officers for the apprehension and detention of any offender ; and al- though no conviction shall actually take place, such justices may order all or any of the payments aforesaid when they shall be of opinion that the parties acted bona fide ; and all such expenses shall be ascertained and certified under the hands of such justices ; provided that the costs to be paid as aforesaid do not in any case exceed /orfy shillings. § 17. Such orders for payment of expenses to bo forth- with made out and delivered by said justices or one of them, or by the clerk of the recorder's court, county court, or clerk of the peace (as the case may be) unto such prosecutor or person upon payment of one shilling fee and no more to such clerk, and shall bo made upon the officer to whom fines imposed by this act are required to be paid over in the (dis- trict) city, county or union in which the offence was com- mitted, who is required to pay the same upon sight. § 18. Actions against any person for any thing done in pursuance of this act shall be laid and tried in the (district or circuit in Lower Canada) or in the county or union of counties in Upper Canada, where the fact was committed, and be commenced within three months after, and notice in writing of such action shall be given to the defendant one month at the least before action : the defendant may plead the general issue and give this act ac d special matter in evi- 63 ': m ■ W^ i ' n, . * 'I. % 498 mnti^n ISen cli, or ^nttxCu ISenci), dencc, and no plaintiflF shall rocovcr, if tender of Bufficient amends shall have been made before action, or if a sufficient sum paid into court ; and if verdict for the defendant, or plaintiff become nonsuit, &c., the defendant shall recover full costs. See also " Reformatory Priaon.'^ KTDNAPPING. Is the forcible abduction or stealing away of a man, woman or child, from their OAvn country, and sending them into another — 4 Bl. Com., p. 219; and is punishable at com- mon law with fine, imprisonment and pillory — lb. ; and also by statute 11 & 12 Wm. III., c. 7, though principally intended jigainst pirates, it is enacted " that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or reliuii' to bring home all suuh men as he carried out, if able and do- sirous to return, he shall suffer three months' imprisonment. ' Upon this subject the learned commentator on Blachtonp {Christian) has this note : where a child is stolen for the sako of its clothes, it is the same species of felony as if the clothes were stolen without the child ; but, without referring it tn 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 to be a misdemeanor to steal a dead body from a grave. A pillory, upon the same jninciple on which it was decided special provision, however, is now made against this offence. by 4 & 5 Vic, c. 27, § 21, for which sec title " Child Stealinn;' p. 145. KING'S BENCH, OR QUEEN'S BENCH. The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined there, or prohibit their progress in tlie court below. It superintends all civil corporations ; it commands magistrates and others to do wha*^^ their duty requires, in every case where there is no specific remedy ; it protects the liberty of the subject by speedy and summary interposition, and is empowered to find redress in every matter of inquiry. — 2 Haw. c. 3, § 3. It takes cognizance both of civil and criminal causes. On the crown side, its jurisdiction extends to all manner of offences, from high treason down to the most trival misdemeanor, or breach of the peace, and it may award process into any part of the province. Into this court, also, Hfng^fii lB\}itftntt* 499 indictments from all inferior courts may be removed, by writ of certiorari, and tried either at the bar, or by writ of nisi prius, at the assizes for the county out of which the indict- ment 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, iind 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. The Court of King's Bench, in this province, was created and established by statute 34 (i. III., c. 2, and the change of Btyle of the court to the "Queen's Bench," was effected by the *2 v., c. 1. KING'S EVIDENCE. Is obtained by the admission of an accomplice against his fellows upon an implied confidence, which the judges of gaol delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies, to which he is examined by the magis- trate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted. — 4 Bl. Com. 331. The discretionary power, however, thus exercised by justices of the peace, is founded in practice only, and cannot control 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 admit an accomplice to be a witness, though the judge, unless he should see some particular reason to the contrary, will prefer the one to whom this encouragement has been held out by the justice of the peace. — Ibid. Such admission to be a wiin'^ss, does not entitle the accomplice to a pardon of right, but amounts merely to a promise of a recommendation to mercy, upon condition, that the accomplice makes a full and fair disclosure of all the circumstances of the crime for which the other prisoners are tried, and in which he has been con- cerned in concert with them : upon failure, on his part, of this condition, he forfeits all claims to protection. — li. v. Itudd, Cowp. >i'il ; 1 Leach, 115. Thus, where upon a trial before 5w//tT, J., atYork (England), the accomplice (who was admitted a witness) denied in his evidence, all that he had before con- fessed, upon which the prisoner was acquitted — the judge or- dered an indictment to be preferred against the accomplice for the same crime ; and upon his previous confession, and other circumstances, he was convicted and executed.*— 4 Bl. Cam. 331, ■M mm 'rnhM '--'''km ■ IL Pt[4 ill mt '^m .: :Ji '^tim irM ii r ik M: hi F %: if !f;7. r J . . I 1 . •rt.in til 115.. tmim : 500 mnu^fi S^tovtu. note 6. And the claim of an "/^complice does not extend be- yond those offences in ivhich he Las been connected with the prisoner, and concerning which he has previously undergone an examination. — R. v. Duce, 1 Chetw. ; Burn. 212. Until the trial, the accomplice so to be admitted as kind's evidence, will, of course, be kept in custody, as well as the principal. See also further on this subject, title " Approvers" ante p. 42. KING'S STORES. By 33 El., c. 4, 22 C. II., c. 5, if any person having the charge or custody of any of the King's 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 her Majesty's sails, cordage, or any other of her Majesty's naval stores, to the value of 20s., he shall, (on prosecution within a year) be adjudged guilty of felony. By 9 & 10 W. III., c. 41, 17 G. II., c. 40, § 10, 11, no per- son, other than persons authorised, by contracting with her Majesty's officers, shall make any stores of war or naval stores, With the Queens's mark, that is cordage of three inches and upwards, with a white thread laid the contrary way ; or any canvas with a blue streak in the middle ; or any other stores with tl^e broad arrow, on pain of forfeiting tlio same, and j6100, with costs, (on conviction at the assizes or sessions), half to the Queen and half to the informer. By 9 & 10 W. III., c. 41, any such person, in whose custody such goods or stores, so marked, (or any timber, tliick stuff, or plank, marked with the broad arrow, 9 G. I., c. H, § 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 certificate from the principal OiFicers of the navy, expressing the quantity and on what occasion he came by them. By 9 G. I., c. 8, § 4, the court may mitigate the penalty, and as they see cause, commit the offender to gaol till pay- ment, or may punish him corporally by public whipping, or hard labour for six months, or a less time. By 12 G. III., 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 her Majesty's ships of war, whether on float, or building in any dock-yard, rope-yard, Han^lot^ unXf Emnnu 601 !xtend be- 1 with the undergone 12. 1 as king's yell as the wers" ante having the r, ordnance, r, or of any for lucre or iame, to the ezzle any of 3r Majesty's prosecution ), 11, no per- AnK with her : naval stores, e inches and way ; or any other stores le same, and or sessions), whoso custody !r, thick stuff, 1., c. 8, § 3,) ■with costs, in ilcss he shall ipal Ouicors of it occasion he [e the penalty, gaol till pay- whipping, or liin this realm, ices thereunto |n fire, burn or ships of Avar, fd, rope-yard, victualling office or buildings, belonging thereto, or any military or naval stores therein deposited, he shall be ad- judged guilty of felony. The provisions of this act are by the *3 W. IV., e. 3, confirmed, in relation to this province. LANDLORD AND TENANT. Distress for Rent in Arrear. First. — Distress for rent must be for rent in arrear ; there- fore 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. Second. — It must not be after tender of payment.— /ws^ 107. Third. — Persons having rent in arrear upon any lease deter- mined, may distrain for such arrears after the determination of the lease, in the same manner as if it had not been deter- minec^ ; provided that such distress be made within six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and during the possession of the tenant from whom such arrears became due. — 8 An. c. 14, § 6, 7 (a). Before the statute of the 17 C. II., c. 7, in case a distress was too little, where sufficient dissress was to be had, a man could not distrain again, be the demand never so great. But now, by said statute, in all cases where the value of the cattle distrained shall not be found to be of the amount distrained for, the party to whom such arrears were due, his executors or administrators, may distrain again for 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, and distrain for part of it at one time, and for part of it at another time ; and so totics quoties for several times, for that is great oppression ; but if a man seizeth for the whole sum that is due to him, and only mistakes the value of the goods seized, there is no reason \vhyhe should not complete his execution, by making a further seizure. — Burrow, Mansfield, 589 ; 3 Bl. Com. 12. If any distress and sale shall be made for rent in arrear !ind due, when none is in truth due, the owner shall recover double value, with full costs. — 2 W. <|* M., sess. 1, c. 5, § 5. Distresses must be proportionate to the thing distrained (a) A Biiailar provision in *7 W. IV., o. 3, § 28, i :|'* li UA ^■"^Mii: pm4 1 ?! \i\\ ' \ ; ,:'f d .4, ■;/t" wm ■':tB '5' 5-, li 602 JLuntflovn untf ^tn^nu • ;:.;s !■? *( for. By the statute of Marlbrige, 52 Hen. Ill, c. 4, if any man takes a great or unreasonable distress for rent-arrere he shall be heavily amerced for the same. As if the landlord distrains two oxen for twelve-pence rent ; the taking of loth is an unreasonable distress ; but if there were no other dis- tress nearer to the value to be found, he might reasonably have distrained 07ie of them. The remedy for excessive dis- tress is by a special action on the statute of Marlbridgc, for an action of trespass is not maintainable upon this account it being no injury at common law. — 3 Bl. Com. 12. What Goods may he Distrained^ and what not. 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 ferce naturw, cannot be distrained. — 1 Inst. 47. Although it be of valuable property, as a horse, yet, if when a man or woman is riding on him, or an axe in a man's hand, cuttin;; of wood, and the like, they are for that time privileged, and cannot be distrained. — 1 Inst. 47. And it hath been held, that 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 Le not upon tlic cart. — Vent. 30. Valuable things shall not be distrained for rent if brought to the premises for the benefit and maintenance of trades, which by conseriucnce arc for the commonwealth, and arc there by the authority of law. as the horse in a smith's shop ; nor the cattle or goods of a guest at an inn ; nor the materials in a weaver's shop for making cloth ; nor cloth or garments in a tailor's shop; nor sacks of corn or meal in a mill ; nor any thing distrained for damage feasant ; for it is in the custody of the law anil the like. — 1 Inst. 47 ; 2 Burr. 1498. But a chariot or horses standing at livery are not exempt. — lb. Beasts belonging lo the plough shall not be distrained (which is the ancient common law of England, for no man shall be distrained by the utensils or instruments of his trade or profession, as the axe of the carpenter, or the books of a scholar), while goods or other beasts may be distrained. — 1 Inst. 47. But this rule liolds only in distresses for rent in arrear, and the like ; but dotli not extend to cases where a distress is given ir. the nature of an execution, by any particular statute, as. '• poor rates. and the like.— 3 Sal/c. 13G ; 1 Burr. 579; Lu. Haym.m. Implements of trade may be distrained when they arc not in actual use and no other sufficient distress can bo found on the premises. — Co. Litt. 47, (a) 4 T. M. 565 ; G Pric(. Ha^ntrlot^ an)r Etnunt 503 j^g«. 3; 2 Chittt/'s R. IQ'i. Furnaces, cauldrco or other things fixed to the freehold, or the doors- or windows of a house, or the like, cannot be distrained. — 1 Inst. 47. Things for which a replevin will not lie, so as to be known again, as jjioney out of a bag, cannot be distrained, — 2 Bac. Abr. 109. But money in a bag sealed, may be distrained, for that the bag sealed may be known again. By the 2 W. & M. sess. 1, c. 5, ^ 3, 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 (rranary, 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 bo not removed, to the damage of the owner, out of the place where found and seized, but kept there (as impounded) till replevied or sold. Also by the 11 Geo. II., ch. 19, § 8, the landlord may take and seize corn, grass, hops, roots, fruits, pulses or other products growing, as a distress ; and the same may cut, (rather, make, cure, cari-y, and lay up, when ripe, in tlie 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 appraisement whereof shall be taken when cut, gathered, cured, and made, and not before. And notice of the place where the goods so distrained shall bo lodged, shall in one week after the lodg- inc 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 (iistrainablc by him for rent, (with the exceptions in favour of trade) above speci- fied; 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. — 8 Jilaokstonc, 8. With regard to a stranger's beasts, if they are put in by consent of the owner of the beasts they are distrainablo immediately afterwards for rent-arrero by the landlord ; so also if the stranger's cattle break the fences, and commit a trespass by coming on the land, they are distrainablo immediately by the lessor for his tenant's rent. But if the lands were not sufii- ciently fenced so as to keep out cattle, the landlord cannot distrain them, till they have been levant and couchant on the land; that is, have been long enough there to have lain down, and rose up to feed ; which in general is held to be one night t-H'' t f' i i ym m { 504 iSLunrnovn unit ^tn^nu ill ■•., ^ at least : and then the law presumes that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away : yet if the lessor of his tenant were bound to repair the fences, and did not and thereby the cattle escaped into their grounds, without the negligence or default of the owner, in that case, thoutrh the cattle may have been levant and eoiiehant, yet they are not distrainable for rent, till actual notice is given to the owner that they are there and he neglects to remove them: for the law will not suffer the landlord to take advantage of his own, or his tenant's wrong. — 3 Bl. Com. 8, 9. But cattle put into a field by a drover with the consent of the occupier to graze only one night on their way to a fair or market, arc not liable to distress for rent. — 2 Vern. 130. Goods of a principal in the hands of a factor are privileged from distress, being for the benefit of trade. — 6 Moore Men^ 243, so goods landed at a wharf, and consigned to a broker as agent of the consignor, for sale, and placed by the broker in the wharfinger's warehouse as they were brought there in the course of trade. — 1 Bing. 283. So goods carried to be weighed, even at a private house, if in the way of trade, are exempt : so is a horse that has carried corn to a mill to be ground. — Cro. EUz. 548, 596. Goods in possession of a carrier are also exempt, and this though the carrier was not a public one. — 1 Salk. 249. But horses or cattle sent to a^ist (or pasture) may be immediately distrained by the landlord for rent in arrear, and the owner must seek his remedy by action against the tenant. The principle of this rule extends to public livery stables, to which if horses and carriages are sent to stand, they are distrainable by the landlord. — 3 Bm\ 1498. So upon the same principle the goods of lodgers, or any other person on the premises, are liable to be distrained ; and to exempt goods being at an inn, they must be within the very precincts of the inn, and not on other premises at a distance belonging to it. — Barnes^ 472. A rent may not be distrained for in the night, but in the day time. — 1 Inst. 142. For before sunrise or after sunset no man may distrain but for damage feasant. — Mirrour, c. 2, § 20. Distress hoiu to he Demeaned. When the distress is thus taken, the next consideration is the disposal of it ; for which purpose the things distrained must, in the first place, be carried to some pound, and there impounded by the taker. But in their way thither they may be rescued by the owner in case the distress was taken with- ,'. 1' wner may ia his OTivn the lessor nd did not, ids, without ase, though ^et they are given to the move them; ,ve privileged ) Moore liq). d to a broker by the broker ) light there in ; carried to be f of trade, are to a mill to ho )Ssession of u sarrier was not ,le sent to agist )y the landlord his remedy hy lis rule extends i carriages are ord.— 3 Bun. of lodgers, or be distrained; 3t be within the premises at a HanHlorir ^ntt tenant. 605 out cause or contrary to law, as if no rent be due ; if they ^-ere taken upon the highway, or the like, in these cases the tenant may lawfully make rescue. But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out, for they are in the custody of the law.— 35^. Com,. 12 ; Oo. Litt. 160, 161. But the ordinary and most usual course of treating a dis- tress when made, is that provided for by the following statute. By 11 Geo. II., 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 owner's 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 dis- trainer, in such case he may distrain again. — 1 Salk. 248. By statute 2 W. & M., sess. 1, c. 5, where any goods shall be distrained for rent, and the tenant or owner shall not, within in days after such distress, and notice thereof left at the premises, replevy the same, the person distraining, with the sheriflT, under sheriff, or constable of the peace, sJiall cause the foods distrained to be appraised by two sworn appraisers (whom such sheriff or constable shall swear), to appraise the same truly, and after such appraisement, the same shall be sold for the best price that can be got, for satisfaction for the rent and charges of the distress, appraisement and sale ; leaving the overplus (if any) with the sheriff or constable, for the owner's use. '^Xxajive days are reckoned inclusive of the day of sale ; as if the goods arc distrained on the 1st, they must not be sold before the 6th. — 1 H. Bla. 13. But by consent of the tenant the landlord may continue in pos- session longer than the five days without incurring any liability.— 7 Price, 690. lieplevin. Where the tenant disputes the validity of the distress, his remedy is by action of replevin. The tenant may replevy the goods seized at any time within the five days, or at any time before the sale. — 5 Taunt. 451 ; Marsh, 135. The party intending to replevy sues out a writ of replevin. If the distress exceed .£15, the writ is sued out from the Queen's Bench (or Common Pleas) ; if not exceeding <£15 then fiom the county court. — *4 W. IV., c. 7, § 7. The writ is directed I to the p/iieriff, commanding him to replevy the goods to the 64 i ■I > '■! 1 M :■. m iri'S tmm J 506 ULunxnovXf ann ^Tenant. M ft:r i^ «lt» mm plaintiff, and to summons the defendant (the landlord). The statute requires that before the sheriff shall proceed to re- plevy he shall take pledges from the plaintiff by bond (with sureties), in the form pre jcribed, conditioned for the prosecu- tion of the action, and the return of the goods, if such return be adjudged. The statute 11 G. II., c. 19, requires that the sheriff shall take bond, with two sureties, in double the value of the goods distrained. The sheriff on receiving such security, is then immediately, by his officers, to cause the chattels distrained to be restored to the party distrained upon, and the action of replevin proceeds in the ordinary way of other actions. Fraudulent removal of G-oods, ^c. By 11 G. II., c. 19, § 1, if any tenant for life, years, at will, sufferance, or otherwise, shall fraudulently, or clandestinely, convey off the premises his goods or chattels, to prevent the landlord from distraining, such landlord, or any person by him lawfully empowered, may, in thirty days next after such con- veying away, seize the same wherever they shall be found and dispose of them in such manner as if they had been distrained on the premises. § 2. But no landlord shall distrain any goods sold bond fide, and for a valuable consider- ation, before such seizure made, to any person not privy to such fraud. § 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 knowingly aid or assist him in such fraudulent conveying away or carrying off any part of his goods or chattels, or in concealing the same, any person so offending shall forfeit to the landlord double the value of such goods, to be recovered in any court of record. § 4. But if the goods and chattels so fraudulently carried off or concealed shall not exceed the value of £50, the land- lord or his agent may exhibit a complaint in writing before two 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 con- cerned, 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 enijuire in like 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 HanTilotli aftin Etnunu 607 ojfenders 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 ihe 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 mainprise, for the space of six months, unless the money so ordered to be paid as aforesaid shall be sooner satisfied. § 5. Persons affsrieved by order of such justices may appeal to the next general quarter sessions, who may give costs to either party. § ^' -^.nd where the party appealing shall enter into recognizance, with one or two sureties, in double the sum so ordered to be paid, with condition to appear at such sessions, the order of the justices shall not be executed against him" in the mean time. § 7. Where any goods or chattels, fraudu- lently or clandestinely conveyed or carried away, shall be put, placed or kept in any house, barn, stable, out-house, yard, close, or place locked up, fastened, or otherwise secured, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent, it shall be lawful for the landlord, or his steward, bailiff, receiver, or other person or persons empowered, to take and seize, as a distress for rent, suck goods and chattels (first calling to his assistance the constable, headborough, or other peace officer of the district, &c.) ; and in case of a dwelling-house (oath being first made before a justice of the peace of a reasonable ground to suspect that such goods or chattels are therein), in the day time, to break open and enter into such house, barn, stable, out-house, yard, close or place, and to take and seize such goods and chattels for the said arrears of rent, as he mif^ht have done if they had been in any other place. Notice to Quit. If the tenancy be from year to year, six months notice to quit by the landlord or the tenant is requisite to put an end to the tenancy. The notice cannot be given at any time of the year, but must be given six months clear before the end of the current year of the tenancy. If the tenancy be by the quarter, month, or week, correspon.ing notice must be given ; that is, three months, one month, or one week, as the case may be, such notice transpiring at the end of the quarter, month, or week, of the original holding. In the case of a tenancy for a time certain, that is, if the tenant take the premises for one year certain, and not by the year, or from Mm f^^i ■^i '«;'t^ ■ Km i-l It I1 1. f h \^l ■ ! ^:'nllli u U^ ^niivi^ .1. i M 1 J r % 608 Uanlvlotti unXf Ztnnnu year to year, notice to quit is not necessary, but the landlord is entitled to his possession at the expiration of the year; and so likewise where the tenancy be for a time certain for a shorter period than a year. Case of Tenant Iloldimi Over. By 4 G. II., c. 28, if any tenant for life, or years, or other person who shall come into possession by, from, or under him, shall wilfully hold over any lands after the determination of such term, and after demand made, and notice in writing given for delivering the possession thereof he shall, for the time he shall so hold over, pay double the yearly value, to be recovered by action of debt in any court of record. — § 1. By 11 G. II., 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 possession at the time in such notice contained, he, his executors or administrators, shall from thenceforward pay double rent,, to be recovered in like manner as the single rent. *By 4 W. IV., 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 to a judge in vacation, upon affida- vit, who shall order a writ to issue for summoning a jury of twelve men, before the commissioner named to determine the matter ; and if in favour of the landlord, a writ of possess- ion shall be issued. Deserting the Premises. By 11 G. II., c. 10, § 16, if any tenant at rack-rent, or where the rent reserved shall be full three-fonrth% of the yearly value of the demised premises, who shall be in arrear for one years 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 premises) may at the request of the land- lord go upon and view the same, and affix on tiie most notorious part of the premises notice in writing what day (at the distance o^ fourteen days at the 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 may ap- Uantflotir untf Q:ena(nt* 509 peal to the next justice or justices of assize, who may award costs to either party. Ment how far Uecoverable by Executors. By 32 H. VIII., c. 37, it is enacted that the executors and administrators of any person to whom any such rent shall be due and not paid at the time of his death, may dis- train upon the premises, so long as they shall continue in the possession of such tenant, or of any other person claim- inir under him. ^ See also *T W. IV., c. 3, § 17. Costs. *By the 1 V., c. 16, § 1, no person whatsoever making any distress cither for rent or for any penalty imposed by the laws of this province, when the sum demanded shall not exceed the sum of X20, for and in respect of such rent or penalty, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of such distress, or for carrying the same into effect, shall have, take or receive,»out of the produce of the goods or chattels distrained upon and sold, or from the tenant or other person distrained, or from the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein, than such as are fixed and set forth in the schedule annexed, and no person shall make any charge for any thing mentioned in the schedule not really done. \ 2. Any person offending herein may be summoned by any one justice upon the complaint of the party aggrieved, and if it shall appear to such justice that the person or persons complained of shall have levied, taken or received, or had other and greater costs and charges than mentioned in the schedule, or made any charge for any thing mentioned in the schedule not really done, such justice shall order and ad- judge treble the amount of the moneys so unlawfully taken to be paid, by the person or persons so having acted, to the complainant, together with full costs ; and in case of non- payment, such justice shall issue his warrant to levy the same by distress and sale of the goods and chattels of the oifender, and in case of insuflBcient distress, such justice shall by warrant under his hand commit the party to the common gaol, there to remain until such order or judgment be satisfied. § 3. Such justice may summon and examine witnesses on oath touching such complaint or the defence against it ; and in case of non-attendance, without lawful J,'";''=' I ' ^*i mm V\ ' tl I'i? ,fA ■ m ■If "^i.S' jl>!l* ,f T I i'i It . ! f ' ;m^ I; ' I ( ■' |-f ^' fl ;f N? niMi) i ^['Kr ill;:. r ■*:;!;i 510 iLmyiotiv Ktm ^eifntit. excuse, or refusal to be examined, such person shall forfeit a sum not exceeding 40s., to be enforced by distress or com- mitment in like manner as aforesaid, except as regards the form of the order as hereinafter provided. § 4. Any party preferring an unfounded complaint shall be adjudcred to pay costs not exceeding 20s. to the defendant, to be enforced in manner aforesaid : provided alwat/s, that no order or judrr. ment be made against the landlord, unless such landlord shall have personally levied such distress ; and provided fur- therj that no person aggrieved by any such distress, or any proceedings had in the course thereof, or by any costs or charges levied in respect of the same, shall be barred from any legal remedy, excepting so far as any complaint to be preferred by this act shall have been determined, and such order and judgment may be given in evidence under the plea of the general issue. § 5. Such orders and judgments on such complaints shall be made in the form in the sched- ule annexed, and may be proved before any court by proof of the signature of the justice, and such orders as regards witnesses shall be made in such form as to such justice shall seem fit and convenient. § 6* Every broker, constable, bailiff or other person who shall make and levy any distres, for pounds arrears of rent due to him, the said A. L. t-f lij -',1 I'S' .■5ft ? ■. .1 I" n U'.: 1, ■ !ifi ? lu f 1 : rfi-iti ;i: 'Pi u ;i •i •'j? 512 ilAittriot^r an^ tenant* /w i/te BwelUng-houie. One Table, Six Chairs, &c. In the Oow-7iou8e. Six Cows, Two Calves, &c. Notice of Distress. Mr. A. T. Take notice, that by the authority, and on t half of your landord, A. L., I have this day of , in the year of our Ijord distrained the several goods and chattels specifieil in the schedule hereunto annexed, in your houses, out-houses and oTounds, at for je arrears of rent due to li im the said A. L.; and if you shall not pay the said rent so duo and in arrear as aforesaid, or replevy the said goods and chattels, I shall, after the expiration of five days from the duto hereof, cause the said goods and chattels to be appraised and sold, according to the statute in that case made and provided. Given under my hand, the day and year first above written A. D. Witness, that a copy licreof was this day delivered to the said A. T. (or left at the dwelling-house of the said A. T.) A. W. Appraisers'' Oath. You, and each of you, shall well and truly ^ .ise the goodi and chattels mentioned in the inventory, according to the best of your understanding. So help you God. Form of the Appraisement. The appraisement may be in the form of an inventory, specify- ing the particulars, and their respective valuations ; and then add at the end, Appraised by us, this day of in the year g' p' |- Sworn Appraisers. Form of a Complaint upon oath to he made before a Justice, in case of a dwelling-house where goods and chatties are fraudulently and clandestinely removed^ and conveyed away and secured, so as to prevent them from being taken and seised as a distress for rent. Provinck of Canada : County of , ) The, information and complaint of A. J., to wit. I of taken upon oath before us the under signed, two of her Majesty's justices of the peace in and for the said county of at in the said county of this HanniQtti attH (Tenant* 513 .half of your e year of our :els specified s, out-houses It ilue to him rent so due ; and chuttels, > diito hcreoi, ;ed and sold, Dvidcd. ibove wvilteu. A. D. ivored to die dA.T.-) A. \V. ise the goods nor to the best ntory, specify- ons ; and dien ic year ppraisers. fore a Justice, id chatties an land conveyed \m being taken llaint of A. J., us the under leace in and for lof this iliiy ol in the year of our Lord one thousand eight hundred ,jiij , who saith that A. O. of , is justly and truly indebted to this informant in the sum of for arrears of rtMit for a [house and lot situate at ] due to this informant liv the said A. O. on the day of , and that the said \. 0. hath fraudulently and clandestinely conveyed and carried ;i\vav> or caused to be so conveyed or carried away, certain iroods and chattels of him the said A. O. from the said [house iiiul lot] aftor the said arrears had so become due ; in order to prevent the said goods and chattels from being seized and distrained by this informant for the said arrears of rent, and ihat the sftid goods and chatties arc, as this informant hath (Tood cause to suspect, and doth suspect and verily believe, put, pliiced, or kept, in the dwelling house, barn, stable, out-house, vard, close, or other place, of at locked up, fastened or otherwise secured, so as to ,»> event the said goods and chattels from being taken and seized by this informant as a distress for such arrears of rent as aforesaid; wherefore the said A.J. prftveth our warrant in the premises. taken and sworn at the A. J. day of before Warrant upon the preceding Complaint and Oath. Province of Canada : County of , ) To all or any of tin constables or other to wit. j peace officers in the said county. Whereas A.J. of , yeoman, hath this day of exhibited his complaint, and made oath before us the under- siiined, two of her Majesty's justices of the peace for the said ciiuuty, that A. O. of has fraudulently and clandestinely conveyed and carried away or caiiisod to hv so conveyed and carried away, certain goods and chattels of him the said A. O., from a. certain house and lot, situate at , to prevent the said A. J. from distraining the said goods and chattels for £ arrears of rent due to tlie said A. J. for the said , and tiiat the said goods and chattels are, as the said A. J. hath good cause to suspect, and doth suspect and verily believe, put, placed or kept in the dwelling-house, barn, stable, out-house, vard, close or other place of at , locked up, fastened, or otherwise secured, so as to prevent the said goods and chattels from being taken and seized by the said A. J. as a distress for such arrears of rent, as aforesaid. These are therefore to com- mand you, and each and every of you, to aid and assist the said A. J., his steward, bailiff, receiver or other persons empowered by him to take and seize, as such distress for rent, as aforesaid, 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 and chattels for the said arrears of rent, according to law. Given under our hands and seals at , the day of 65 ■J!' .1 K' '■^''!' i 1 -II v!" I >-»m 1 v.rt. ] ^ft . m ^fM- 514 imn^lottr nnrf Ktnunu Information and Complaint under the 11 G. II. ^ c. 19, of Tenant having deserted the Premises. Province of Canada : County of , ) The information and complaint of A. B., to wit. j of , in the said county, taken this day of , 185 , who saith that he the said A. B. did, in and by a certain indenture bearing date the day of in tlie year of our Lord 185 (or, by written or verbal agreement, as ih> case may be), demise unto A. S., of in the county aforesaid a certain messuage (or other premises, as the case may hc\ situate and being at , in the county aforesaid, at 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 &c. ; and that 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 A. S., the tenant of the said demised premises, one whole year's rent thereof, and that he the said A. S. hath deserted the said demised premises, and left the same uncultivated and unoccupied, so as no sufficient distress can be had to countervail the said arrears of rent, and that the said arrears of rent have been duly demanded accord- ing to law. Wherefore the said A. B, doth request J. C. and S. R., esquires, two of her Majesty's justices of the peace for the said county, to go and view the said demised premises, and affix on the most notorious part thereof a notice in ^vritin^ what day they will retum 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 185 . Notice to be affixed on the Premises being deserted. {Burn.) Mr. Abraham SutcliU : Take notice, that upon the complaint of A. B., of , yeo- man, made unto us, J. C. and S. R., esquires, two of her Majesty's justices of the peace for the county of , that you the said A. S. have deserted the messuage and tenement, situate, lying and being at , unto you demised, at rack-rent, by him the said A. B., and that there is in arrear and due from you the said A. S., unto him the said A. B., one whole year's rent lor the ;?aid demised premises, and that you have left the said premises uncultivated and unoccupied, so that no sufficient dis- tress can be had to countervail the said arrears of rent : we the said justices (having no interest, nor either of us having any interest in the said demised premises), on the said com- plaint as aforesaid, and at the request of him the said A. 1]„ have this day come upon and viewed the said demised premises, and do find the said complaint to be true ; and on the day of this present month of we will return to take a second view thereof, and if upon such second view you or some person nuMiwTf atiu Ztnmu 616 on your behalf shall not appear and pay iuo said rent in arrear, or there shall not be sufficient distress on the said premises, then we the said justices, will put him ihe said A. B. into the possesion of the said demised premises, according to the form of the statute in such case made and provided. In witness whereof vire have hereunto set our hands and seals, and have caused this notice to be affixed on the outdoor of the dwelling house, the same being the most notorious part of the said premises, this day of , in the year of our Lord 185 . Record of putting the Landlord into Possession. Province of Canada : County of , ) Be it remembered, that on the day of to wit. \ in the year of the reign of our sovereign lady Victoria, at in the said county, of A. B., of complaineth unto us J. C. & S. R., esquires, two of her Majesty's justices of our said lady the Glueen assigned to keep the peace within the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors, in the said county committed, thathe the said A. B. did demise, at rackrent, unto A. S. of yeoman, a certain messuage, tenement, or dwell- ing-house, lying and being at aforesaid ; and that on the said day of in the year aforesaid, there was in arrear and due unto him the said A. B. 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 premises and left the same uncultivated and unoccupied, so as no sufficient distress could be had to countervail the said arrears of rent, whereupon the said A. B. then and therp, to wit, on the said day of in the year aforesaid, at aforesaid, in the county aforesaid, requpsted of us, so as aforesaid being justices, that a due remedy should be provided to him in this behalf, according to the form of the statute in thai case made, which complaint and request by us the aforesaid justices being heard, we the said J. C. & S. R., justices aforesaid (having no interest in the said demised premises), on the said day of in the year aforesaid, at aforesaid, did personally go and view the said demised premises, and then and there upon our own proper view, did find the sail complaint to be true, aud did then and there affix on the most notorious part of the said premises, to wit, upon the out-door of the dwelling-house aforesaid, a notice in writing, under our hands and seals, that we, the said justices, on the day of the same month 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 justices, 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 doth any person on his behalf 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 'fciy ' 'I n I I 1 I 1 i' MJ * ;:>, mm.-' 516 WLuntf SutHd^otfii. countervail the said arrears of rent ; therefore we, the said justices, at aforesaid, on the day of in the year aforesaid, do put the said A. B. into the possession of the said demised premises, according to the form of the statute afore said. In witness whereof, we, the said justices, unto this record do set our seals, at aforesaid, in the county aforesaid on the said day of in the year of our Lord 185 LAKES AND RIVERS. By *2 W. IV., c. 2, § 1, it is enacted that the lakes, rivers and waters of this proviuce Copper Canada) which arc not comprehended within the defined limits of any town, town- ship or county shall be taken as parts of that district -within which the exterior side lines of which any such lake, river or other water, would lie and be if such exterior side lines were produced in that direction to the utmost limits of this pro- vince. § 2. That all crimes and offences committed in or upon any of the said waters may be enquired of and tried within any district lyinp adjacent to such waters, and may be laid and charged to have Leen committed within the jurisdiction of the court which shall try the same : and such court may pro- ceed thereon to trial, judgment and execution, or other punishment for such crime or offence, as if the same had been really committed within the district where such trial may be had. LAND SURVEYORS. By the 12 V., c. 35, § 2, penalty for practising without being duly licensed repealed by 18 V., c. 83. § 3 to 10 contain provisions for qualification and admission. § 11. Chainbearers to bo sworn to act justly and exactly, and to render a true account to the surveyor, and not to be related to any of the parties interested within the fourth degree- viz., of cousin gorman ; such oath to be administered by the surveyor. § 12. Standard measures to be kept by the com- missioner of crown lands, (a) § 13. Surveyor to have a stand- ard measure of length, stamped or otherwise certified by the commissioner of crown lands or his deputy for this purpose, under the penalty of forfeiture of license ; and shall, previously to any survey, verify the length of his chains and instruments by such standard. § 14. Any person molesting any survey- or in the discharge of his duty shall be deemed guilty of misdemeanor^ and punishable by fine or imprisonment, or both, in any court of competent jurisdiction : such imprison- (a) But see next statute 14 & IT) V., c. 4. HanH SuirlirsotiOi. 517 inent not to exceed two months, nor fine to exceed £5. And any surveyor in the performance of his duties is authorised to pass over, measure along and ascertain the bearings of any township line, concession, or range line, or other governing line or side-line : and for such purpose to pass over tlie lands of any person, doing no actual injury. § 45. Surveyors to keep regular journals and field notes, anil furnish copies to parties interested, upon payment of 5s. for each copy, if not exceeding 400 words, and 6d. for every additional 100 words. § 16. A surveyor may admin- ister oaths to persons he may examine upon any survey. A 17. Such evidence to be reduced to writing and signed by the party ; or, if unable to write, acknowledged by him to be correct before two witnesses, who shall sign the same with such surveyor ; and such evidence shall, and, with any docu- ment or plan prepared and sworn to as correct before a jus- tice of the peace by any surveyor with reference to any survey by him performed, may be filed and kept in the rcnstry office, for production in evidence in any court of law or equity, upon payment to the registrar of Is. 3d. for filing the same. By 1-4 & 15 v., c. 4, § 2, a board of examiners to be appointed at Quebec and Toronto, [a) § 8. Notice to be given by applicants for admissions. § 4. Oath of allegiance to be tlcposited in the registry office of the county of York. § 5. Indentures or article of applicants must be filed with the secretary of the board within two months after the date thereof. S 8. The standard measures of length to be deposi- ted with the secretary of the board at Toronto, who shall exiiniine, test, and stamp standard measures of length for survevors bringing the same for examination. Fee 2s. 6d. ^ By 18 v., c. 8a, § 2 & 40, and § 8 of 12 V., c. 11 & 35 repealed. § 2. None but persons duly authorised under this act to practise as land surveyors, unless previously authorised by the laws then in force. § 4. No person shall bo admit- ted as an apprentice without having previously passed an examination before the board of examiners, or one of the members of such board, or some surveyors deputed by the board as to his knowledge of certain branches of mathe- matics. § 0. Any surveyor summoned to attend as a witness upon any trial, and giving evidence in his judicial capacity, entitled to 20s. per diem of attendance, besides travelling expenses. See also title " Boundarj Lines," p. 103. \{> {a) Amonded by 19 & -JO V., c. 13. !■.■) K'-ls?.' 4 1: ■II V- ' Ir ; mm ■i'- !■•■ il-- kUM nrfifll 't t,-. i Mi ; .'1^' >■' j ■ 618 LARCENY. Larceny is the felonious and fraudulent taking and carry, ing away by any person of the mere personal goods and chattels of another. — 1 ffatv. 89. Until lately there were two degrees of larceny — 1. Grand larceny — which signified the stealing of any goods or chattels above the value of twenty/ shillings sterling. — Ordinance of Quebec, 29, G: III., c. 3. — And 2. Petit larceny — which included those cases where the property stolen was under the value of ttventy shillings. — lb. But now, by the 4 & 5 v., c. 25, § 2, the distinction between grand larceny and petit larceny is abolished ; and every larceny, whatever may be the value of the property stolen, shall be deemed to be ot the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the commencement of this act. § 2. And every person convicted of simple larcenv, or of any felony punishable by this act like simple larceny, shall (except in cases hereinafter otherwise provided for) be liable at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. See ahopost title " Punishment." Of Larceny in General. Trespass. — As every larceny includes a trespass, a party who is not guilty of a trespass in taking the goods, cannot be guilty of felony, at common latff, in carrying them away. — 1 Haio., c. 33, § 1. Thus, where goods are delivered bv the owner to another, upon a trust, (a) or on account of the owner, the possessor cannot be guilty of felony in convert- ing them to his own use, unless by some 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 special property thereby conferred upon him. — Ibid. ; 1 Haiv, 504. But a bare charge of goods, such as that which a servant has over the goods of his master ; or of a mere liberty to make use of a {\xm^ for a particular purpose (such as a traveller at an inn has with respect to the furniture,) docs not prevent the party from being guilty of felony, if he take or convert the goods to his own use ; in both cases the law presumes the property to be still in the possession of its owner. — 1 Hale, 500. («) But Hco 4 iSi 6 v., c. Ii5, § 'M, as to embezzlement by clerks or sur- vauts, aud fO & 11 V., c. 10, § 7, as to agents entrusted ivith the sale of goods. Huvttnig!. 519 g and carry- l goods and r — 1. Grand ds or chattels Ordinance of '•eeny — ^vhich n was umlcr by the 4 & 5 . larceny and whatever may semed to he ot no incidents in imencement of imple hircenv, e larceny, shall for) he liable, [ at hard labour not less than prison or place JO years. rcspass, a party goods, cannot ng them away. Ire delivered by account of tlie my in convert- I distinct act of the rest, >Yitli eby determines •operty thereby it a bare charjie 'cr the goods of of a thing for n inn has \Yitli the party from the goods to bis property tube 1500. it by clerks or sir- ed with the sale of Felonious taking. — Tbero must be a felonious taking, as ffell as a severance, to complete the felony ; but the least removal of the thing from its place is sufficient, as -where a ffuest at an inn took off the sheets from his l3ed -with an fntent to steal them, but was apprehended in the hall, the larceny was held to be complete ; and so, where a man had taken a horse in a field, and while leading him away was apprehended : and again where a man took plate out of a chest, with intent to steal it, and after laying it on the floor was detected before he could move it further, the it'ony in cither case was held to be complete. — 3 Inst. 109 M. v. Simp- joji, Kol. 31. Severance. — But where some goods in a shop were tied to a string, fastened by one end to the counter, and a thief took up the goods and carried them towards the door, as far as the string would permit, and was then stopped, this was held to be no felony, as there was no actual severance of the property. Where the felony is once completed, the oft'enco is not purged by returning the goods, as where a robber, on finding little in a purse, restores it to the owner. — 3 Inst. 69. Felonious Intent. — There must also be a felonious intent, and the usual and most direct evidence of this is, where the party takes the goods clandestinely, or shortly after the taking, such goods are found concealed in his possession, or where he faUehj denies cither the taking or the possession ; but where a man takes a plough from a field, and after ploughing his own land returns it to the place whence he took it, telling the owner that he had used the same, it would be wrong to impute a felonious intent. Recent Possession. — With respect to the recent possession of the property, it may be laid down as a general rule, that where the stolen goods are found in the possession of another man, shortly after the theft or robbery, it is incumbent on him to prove how he came by them, otherwise the presump- tion is that he obtained them feloniously, and this presump- tion is strengthened by proving that the prisoner was seen near the spot from which the goods were taken about the time of the felony, and by his conduct and demeanor at the time tho goods are found in his possession. — 2 East. P. a 656. Identity. — The identity of the goods should in general be satisfactorily proved, by marks or otherwise ; but where a man is seen coming out of a barn, upon whom corn is found, of the same kind with that missed from the barn, this is strong presumptive evidence of guilt. — lb. 657. I ''I n 'n\0\ 'ii i :••■:!' ^m 'k0 nr 520 fL^vttnsi. (7/am 0/ Might. — Where the taking of the goods is under a claim of right, this negatives the animus furandi, or felo- nious intent. — lb. 659. Finding. — If a party finding property know the owner of it, and instead of restoring it converts it to his own use, this will be felony. — Per Laivrence, 2 Muss. 102. So where a gentleman left a trunk in a hackney-coach, which had been taken from his oivn door, and the coachman kept it and em- bezzled the contents, this was held to be felony, as he must have known where he took up the gentleman and ought to have returned the trunk. — M. v. Lamb, 2 Uast, P. C. G64. So where the purchaser of a bureau found 700 guineas deposited in a secret drawer therein, which he embezzled, this was said by Lord JEIdon (after consulting some of the judges) to be felony ; and that if a pocket-book containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the notes, such a taking uas clearly felonious. — Cartivright v. Green, 8 Ves. 405. But in all cases of finding, where it appears that the party hnA jlde endeavoured to discover the owner, a felonious intent cannot be presumed. Fraud. — Where fraud is used to obtain the possoesion of property, the party therein is as much guilty of felony as if he had taken it from the OAvncr — thus, whore A., havino- a design to steal B.'s horse, which was impounded on a distress, enters a plaint of replevin and (thereby gettinj it delivered to Iuki) runs away with it, this is iclony.— 1 Hale, 504, 507. But when the owner of property is induced by fraudulent pretences to give the prisoner cruiUi for the goods, this is held not to be larceny but a elieat^ for which the law has provided an especial remedy, (see ante title " Cheat") ; and so where a party obtained the delivery of a horse, which was exhibited in a fair for sale, by coutratt- ing to buy it and to pay for it immediately, but when it was delivered to him he rode off and never returned, it was hold that this was no felony, but a complete sale and dcliverv upon credit, in which the owner had parted with the pro- perty as well as the possession. — 7^. v. Harvey, \Leaeh^\\)'. But where a man came to Smithfield market to sell a horsu, and a jockey coming there to buy a liorse, the owner de- livered his horse to the; jockey to try his paces in the market-place, and the jockey rode off with tlie horse, this was adjudged to be felony, inasmuch as the possession only and not the propei'tg of the owner in the horse had heeu parted with. — Kel. 82. Pretence of Fxchange. — Where a prisoner offered to acco- to sell a horse offered to acco- Hutttnta. 521 inodate the prosecutor with gold for bank notes, upon -which the prosecutor put down a number of notes, which the pri- soner took up and went away, promising to return imme- diately 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. — iJ. V. Oliver, cit. 4 Taunt, 247. Delivery hy 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 hack the money, but who was sent back by the prisoner under some pretence, when the latter ran away with the candlesticks ; this was held to be felony, no credit having been given by the owner, and the servant having no Ic^al power to part with the goods till paid for them. Bailment. — Where the possession of the goods is acquired under a bailment of them from the owner, for a special pur- pose, and the bailee tortiously converts them to his own use, before the bailment is determined, the offence will not amount to hirccny ; as where a tailor has cloth delivered to him to make clothes of ; or where phite is delivered to a goldsmith to work or to weigh ; or a friend is entrusted with property to keep for the owner's use. — 2 Eaat. P. 0. 693. When the possession of goods however is fraudulently obtained in the first instance, or where the contract of bailment is subse- (lucntly determined or broken by some wrongful act of the bailee, then a wrongful conversion of the goods will amount to larceny. Aud first — respecting Possession obtained Fraudulently by the Bailee. The prisoner hired a horse of the prosecutor, on pre- tence of taking a ride into the country and returning in the evening, but in truth with intent to steal it, and evi- dencing such felonious intent by immediately selling the horse after possession of it was delivered to him ; this was held to be felony. — li. v. Pear, 2 Leach, 212 ; 2 East, P. C. 080. So, where a prisoner hired a chaise at 5s. 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 given of the chaise up to that moment, the presump- tion being against the prisoner, the jury found him guilty. — R. V. Scmple, 1 Leach, 420 ; 2 East. P. 0. 691. In all these cases the question of the real intention of the prisoner at the time of the hiring is for the consideration of the jury, 66 ^.*'.. 1 ■If Mr "■■■ .^ -r: ' e f.j. ■!' a*' .■i;t^ 11' M !| .+ -, 'Ml ■■'.!:|;i!' ' ' 14' ■: 'il i;i!^ .:■ r:mw:i ri iiU i!-;:;;!; ti!* ■mum Ji )f 522 iLuvttm* and if they find that the original taking of the thing hired was with a felonious intent tQ steal it, the offence will be larceny/, although the contract of hiring may not be for any precise and definite time. But where a prisoner hired a horse for a particular pur- pose, without any felonious intention at the time, and ho wrongfully sold the horse after that purpose was executed, it was held that this tortious conversion did not constitute a neio taking in law, so as to make him guilty of larceny R. V. Banks, Buss, cj' By. 441. All such cases of hirinfi^ therefore, will now depend upon the question whether tiic hiring was bond fide, or whether it was only a pretence to get possession of the horse, in order that the party might have a better opportunity of stealing it. So, where thu prosecutor's house being on fire, the prisoner in his presence and under his observation removed some of his good.s (as the jury expressly found) without an evil intention, tlioufli the next morning, upon the prosecutor applying to her, she denied that she had any of the things belonging to him ; the prosecutor, however, upon obtaining a searcli ^var- rant, not only found his property in her house, but most of the articles were artfully concealed in various ways, yet upon this special finding of the jury, that the intention to steal the goods came upon the prisoner after she had tukon them, the judges were of opinion that the transaction ayqs not a felony, but merely a breach of trust. — B. v. Lcigh^ 2 East. P. O. 004; 1 Leaeh, 411, note (a). Larceny by Servants. — Where a servant is entrusted with goods by his master, no legal 'possession is transferred to the servant, who has but a bare charge, the possession of tlie servant being the possession of the master, the servant may therefore commit larceny by a fraudulent conversion of the goods to his own use. — B. v. Bass, 1 Leach, 251, 523, 524. Banker s Clerks. — So if a bankers' clerk be sent to the money drawer for a special purpose, or if he be sent to briii;' money generally out of the draAver, and at the same time he take the opportunity of purloining money for his own use, this is felony. — B. v. 3f array, 1 Ilaiv. c. 33, § 7 ; 2 Eml P. C. 683; 1 Leach, 344. By Carriers. — But although in cases of bailment no larceny can in general be committed of the goods before the regular completion of the contract of bailment, yet there are some tortious acts Avhich determine the privity of it, and amount in law to a new taking from the possession of the owner. This principle furnishes the well known distinction in the Carrier's case, Avhich, as has been justly observed, lELUtttm* 523 stands more upon positive law than upon sound reasoning — £a8t. P- G' 059 ; for it certainly does seem a strange departure from good sense and reason to hold, that if a man delivers goods to a carrier to carry to a certain place, and he steal the ivhole of them, it is no felony ; but that if ho open ;i bale or trunk, and only steal some of the goods it then becomes a felony. — 13 Ed. IV., 9, 6. A position involving go great a contradiction, and one which has excited the surprise of so many learned persons, may well be startling to a common understanding ; it is thus noticed by Lord Chief Justice Kelyng, who was certainly no mean authority in criminal law: — " I marvel at the case put, 13 Ed. IV., 9, 0, that if a carrier have a tun of wine delivered to him, to carry to such a place, and he never carry it but sell it, all this is no felony ; but if he draw part of it, this is felony. I do not sec why the disposal of the whole should not be a felony also." — Kcl. 83. The arguments in support of the above distinction appear to be these : — there can be no larceny without a trespass ; the carrier (having lawful possession of the goods entrusted him to carry) cannot therefore commit a trespass in taking them until that lawful possession is determined ; this lawful possession can only be deter- mined either by the natural termination of the contract of bailment, or by some tortious act of the carrier, which rescinds it; and the only tortious acts to determine this possession are, the breaking open a package or a severance of part of the commodity from the rest. By Millers. — So, if a miller steal jyart of the meal pro- duced by the corn delivered to him to grind, this being taken out from the rest, is felony. — 2 East. P. 0. C98. Fraudulent Wagers. — A man is frequently swindled out of his money by fraudulent bets and wagers, upon a precon- certed plan to defraud him, when it becomes a material ([uestion (as in all other cases of delivery) whether the ■propertij, or only the possession of the money, or other thing, is parted with ; in the first case, the offence is held not to amount to larceny, as there is no felonious taking, but in the last it is otherwise, if the possession be gained animo furandi. Thus, where several sharpers inveigled the prosecutor to bet with them at hiding under the hat, and after suffering him to win at first, contrived to strip him of a largo sum of his money on the event of a bet, it was held, that though this was found by the jury to be a preconcerted scheme to get his money, yet it was no felonious taking, as he parted with his property under the idea that it had been m It;: ifi V ,■. I i^.i Ikf '»[A 624 IBLuvttnsi. if- ; H ) ■ ! ;: i fairly won. — ^J?. v. Nichohon, 2 Leachy 610 : 2 J57a««. P. o 699. Card playing. — But where the prisoners decoyed the prosecutor into a public house, and there introduced the game of cutting cards, and the prosecutor having pulled out some money, but not playing on his own account, one of the sharpers prevailed upon him to cut the cards for him, and then, under pretence that the prosecutor had cut the cards for himself, and had lost, another of them swept his money off the table and went away with it ; this was decided to be one of those cases that should be left to a jury to determine quo animo the money was obtained, and which would be felony if they found that the money was obtained upon a preconcerted plan to steal it. — R. v. Homer, 1 Leach, 270 ; Cald. 295. Ring dropping. — So, where the delivery is by way of pledge or security, the property remains in the owner, ami larceny may be committed of it, if the delivery were obtained fraudulently, and with intent to steal ; as, where the prisoner and some accomplices being in company with the prosecutor, one of them stooped down and pretended to find a valuable ring, upon which they promised the prosecutor that he slioulj have his share of the value of it, and by that means provuiluil on him to deposit his money and watch, and the ring proved to be of little or no value ; this was held to be larceni/, as the possession was obtained by fraud, and the property not altered. — R. v. Patch, 2 East. P. 0. G78 ; 1 Leach 2o8, In like manner where several act in concert all will bo guilty of the felony. Thus, where three sharpers pretended that prosecutor could not bet ,£100, when being provoked by the challenge, he produced that sum in notes, which one of thorn took to count, and then handed to another, who, with the third, pretended to gamble for them ; when the first men- tioned thief beckoned the prosecutor out of the room, and the other two decamped with the money, and all three afterwards shared it ; this was held larceny in all three. — R. v. Stanbi, Ru8s and Ry. 305. Of what things Larceny may be committed. Every description of personal property (with the exception hereinafter noticed) may be the subject of larceny ; such as money, goods, wearing apparel, cattle, and the like. Iftlio personal goods savour any thing of the realty (or freeholdl, it cannot be larceny ; therefore it is no larceny, but a bare trespass, to steal corn or grass growing, or apples on a tree; but it is larceny to take them being severed from the free- IJU Hatnni^* 625 bold, as vrood cut, grass in cocks, stones dug out of the (luarry ; and this, whether they are severed by the owner or even by the thief himself, if he sever them at one time, and then come at another and take them. — 1 Haw. 03 ; 1 H. n. 510. Also, the goods ought to have some worth in themselves, and not to derive their whole value from the relation they bear to some other thing, which cannot bo stolen, as paper or parchment, on which are written assurances concerning lands, or obligations, or covenants, or other securities for a debt or chose in action. — 1 Haiv. 93. {a) The goods ought also not to be of a base nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like ; which, howsoever they may be valued by the owner, shall never be so highly regarded by law, that for their sakes a man shall die.— 1 Haw. 93. Property unhnoion. — There may be a felony in taking iToods, the owner whereof is unknown ; in which case, the kinff shall have the goods, and the oflfender shall be indicted for taking the goods of a person unknown. — 1 Haw. 94. Stealing Securities. — By 4 «& 5 V., c. 25, § 5, if any person shall steal any tally, order or other security whatsoever, entitling or evidencing the title of any person or body corpo- rate to any share or interest in any public stock or fund, whether of this province or of the United Kingdom of Great IJritain and Ireland, or of any British colony, or of any foreign state or colony, or in any fund of any body corporate, company or society, or to any deposit in any savings bank, or shall steal any debenture, deed, bond, bill, note, warrant, order or other security whatsoever for money or for payment of moneys, whether of this province or of Great Britain, {b) or of any British colony, or any foreign state or colony, or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, every such offender shall be deemed guilty of a felony in the same degree and punishable in the same manner as if he had stolen any chattel of like value. Stealing from Vessels. — § 21. If any person shall steal any goods or merchandize in any vessel, barge or boat, in any port of entry or discharge upon any navigable river or canal, or in any creek belonging to or communicating therewith, or shall steal any goods or merchandize from any dock, wharf quay adjacent thereto, being convicted thereof, he shall or be liable to any of the punishments which the court may award, as in said act is mentioned. lm% I '(■ \m (a) But note tbo lato statute 4 & 5 V., c. 25, as to stealing securities, (i) Ireland omitted. 'tl^r 62G iLuvttnp* ?i«i |. -r, Stealing Records. — § 25. If any person shall steal, or shall for any fraudulent purpose tako from its place of deposit or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure or destroy any record, writ, return, panel, process, interrogatory, dcposi- tion, affidavit, rule, order or warrant of attorney, or any original document whatsoever of or belonging to any court of justice, or relating to any matter, civil or criminal, bciiii, depending or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order or decree! or any original document Avhatsoever of or belonging to any court, or relating to any cause or matter begun, dopendinc or terminated in any such court, or any notarial minute, or the original of any other authentic act, every such offender shall be guilty of a misdemeanor, and being convicted there- of, shall be liable, at the discretion of the court, to bo im- prisoned at hard labour in the provincial penitentiary, for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, or to suficr su \ other punishment by fine or imprisonment, or both, as the court shall award ; audit shall not be necessary to allege in tlie indictment that the article stolen was the property of any person, or of any value. IStealing Wills. — § 26. If any person shall cither, durin" the life of the testator or testatrix, or after his or her death, steal, or for any fraudulent purpose destroy or conceal, anv will, codicil, or other testamentary instrument, whetlut relating to real or personal estate, or both, such offender shall be guilty of a misdemeanor, and being convicted there- of, shall be liable to any of the punishments whitdr the cuun may award, as before mentioned ; and it shall not bo neccv sary to allege in the indictment that the same was the pro- perty of any person, or of any value. Stealing Title Deeds. — § 27. If any person shall steal any original paper or parchment, written or printed, or partly written and partly printed, being evidence of tlir title to any real estate, such offender -hal' ' lecmcd guilty of a misdemeanor, and being C( vie tl thorcoi", shall be lia- ble to any of the punishmen ^li the cour* may awanl, as before mentioned ; and in indictment, -hall be suffi- cient to allege the thing stok. to be vidence of title, or of part of the title, of the person or p( sons having a present interest, legal or equitable, in the real estate to which tlic same relates, and to mention such real estate or some p thereof ; and it shall not be necessary to allege value. it :oal, or shall : deposit, or eof, or shall destroy any tory, ilcposi- rncy, or any to any court ninal, bej^mi, or any bill, icr or decree, )nging to any n, depending ial minute, or such offender nvicted there- Durt, to be im- nitentiary, for ess than seven on or place of years, or to iprisonment, or ot be necessary stolen wastbc 1 either, during is or hev deatli, or conceal, any iment, -whetlier such offovidor onvictcd there- which the cour: ill not be necc>- ic was the pro- tsou shall steal or printed, (v evidence of tlie deemed guilty cut", shall be lia- iv may aAvard, ,hall be suffi- ce of title, or of .aving a present ate to which tlie late or some p oge value. iBLwttm. 627 ^ 28. Nothing in this act contained shall prevent, lessen or impeach any remedy at law or in equity which any party aiTffricved might or would have if this act had not been passed ; but the conviction of sucli offender shall not be evi- dence in any action at law or suit in equity against him, nor shall such offender bo convicted by any disclosure made by him on oath upon compulsory process in any action or suit at law or in equity, or before commissioners of bankrupt. Stealing G-lass, Lead, .J'c. — § 30. If any person shall steal, rip, cut, or break with intent to steal any glass or wood work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metals or other materials, respec- tively fixed in or to any building whatsoever, or any thing made of metal fixed in any hind, being private property, or for a fence to any dwelling-house, garden or area, or in any square, street or other place dedicated to public use or orna- ment, every such offender shall be guilty of felony, and l)cln"' convicted thereof, shall bo liable to be punished in the same manner as in the case of simple larceny ; and in case of any such thing fixed in any sciuare, street, or other like place, it shall not be necessary to allege the same to be the property of any person. Stealing hif Tenants. — § 87. If any person shall steal any chattel or fixture let to bo used by him or her in or with any house, or with any house or lodging, whether the contract shall have been entered into by him or her, by her husband, or by any person on behalf of him her or her husband, every such offender shall be guilty of i'elony ; and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ; and in every case of stealing any such chattel the indict- ment may be preferred in the common form as for larceny ; and in every such case of stealing any fixture, the indict- ment may be preferred as if the offender were not a tenant or lodger, and the property laid in the name of the owner or person letting to hire. Stealing hy Clerks or tServants. — § 38. If any clerk or servant shall steal any chattel, money or valuable security belonging to or in the possession or power of his master, every such offender, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary, for any term not exceeding fourteen years, nor less than seven years, or to be imprison- ed in any other prison or place of confinement for any term not exceeding two years. or or 'PI ill': 1 1 a lik r ,. 528 Wi,uvttnp^ jvestitution. — § 49. If any person guilty of such felony or misdemeanor as aforesaid, in stealing, taking, obtaining or converting, or ir.' knowingly receiving any chattel, monoy valuable security, or other property whatsoever, shall bo indicted for any offence by or on the behalf of the owner of the property, or his heir, curator, executor or administrator and convicted thereof, in such case the property shall be restored to the owner or his representative ; and the court before whom any such person shall be so convicted shall have power to award, from time to time, writs of restitution for the same property, or to order the restitution thereof iu a summary manner : provided alwai/s, that if it shall appear before any award or order made that any valuable socuritv shall have been bond fide paid or discharged by some person or body corporate liable to the payment thereof, or hoiniT a negotiable instrument shall have been bond fide taken or received by transfer or delivery by some person or body ooi- porato for a just and valuable oonsidei'ation, without any notice, or without any reasonable cause to suspect that the st.xne had by any felony or misdemeanor been stolen, taken obtained or converted, as aforesaid, in such case the eoiu't shall not award or order restitution of such property. Apprehension without Warrant. — § 55. Any person found committing any offence punishable either upon iiuliet- ment or summary conviction, by virtue of tliis act, niav Ijo immediately apprehended, without a warrant, by any p'oaci officer, or by the owner of the property on or with respect to which the offence shall be committed, or by the servant of any person authorised by such owner, and forthwith taken before some neighbouring justice, to be dealt with accordiu - to law. Sec aho post title " Search Warrant." Trii/'.. — § 08. If any person having stolen or otherivisi' taken away any chattel, money, valuable security or (itJai property whatsoever, the stealing or unlawfully takiii:- whereof is made punishable by indictment by any of the pru- visions of this act, in any part of her Majesty's dominion^, shall afterwards have the same property in his possession in any part of this province, he may be dealt Avith, indicted tried and punished for such offence under this act, in that part of this province where he shall so have such property, in the same manner as if he had actually stolen it or unlaw- fully taken it in that part ; and if any person in that part of this province shall itccive or have any chattel, monoy, valu- able security or other property whatsoever, which shall have been stolen or otherwise unlawfully taken in any other part is^uvttns. 629 ill felony or )btammg ov tcl, money, 3r, shall bo ;hc owner of Iministratov, erty shall be nd the couvt ivictcd shall of rcstit'.niou on thereof in i, shall appear liable security f some person sof, or being a ^dc taken or n or body cov- ,, -Nvithout any uspcct that the 1 stolen, taken, case the covu't ropcrty. . Any pcv^ou ici* upon imlict- his act, may Ijo t, by any poaci' ■with respect to the servant 4 forthwith takiu It with accordin;: rant. sn or otherwise security or otlw.'V [lawfviUy takin: any oftbe jnv sty's domini'm'', I bis possession iii with, indicted, this act, in tlm \g such property. tolen it or unlaw- pn in that part I'l Ltd, money, valu- which shall liavc in any other part of her Majesty's dominions, such person knowing the said property to have been stolen or otherwise unlawfully taken, he may be dealt with, indicted, tried and punished for such offence in that part of this province where he shall so receive or have the stolen property, in the same manner as if it had been originally stolen or unlawfully taken in that part of this province as aforesaid. Of Larceny from the Person. If the goods are taken from a man's person, the offence then receives a further degree of guilt ; and if it be attended ^ith putting him in fear, it is called robbery. See title " Bohheryr Summary Conviction for Larceny. By 20 v., c. 27, § 1, {a) it is enacted th t where any person is charged before the recorder of :ny city with having committed simple larceny, the value of the property alleged to have been stolen not exceeding five shillings, or with having attempted to commit larceny from the person, or simple larceny, it shall be lawful for such recorder to hear and determine the case in a summary way ; and upon confession or proof, such recorder may convict and commit the offender to the common gaol or house of correction to be imprisoned, with or without hard labour, for any period nob exceeding three months. But if the person charged refuse to have the case so tried, or if it appear to such recorder that the offence is one which, owing to a previous conviction, is by law a felony, or if the recorder bo of opinion that the charge is, from any other circumstances, fit for prosecution by indictment, then he shall deal with the case as if this act had not been passed : provided, that if upon hearing the charge the recorder shall be of opinion that circumstances in the case render it inexpedient to inflict any punishment, he may then dismiss the person charged without proceeding to a conviction. The conviction or certificate of dismissal may be in the forms A. and B. in the schedule to this act. § 2. Where the recorder proposes to dispose of the case summarily after the examination of all the witnesses for the prosecution, he shall state to such person the substance of the charge^ and say to him these words, or words to the like effect, "Do you consent that the charge against you shall bo tried by me, or do you desire that it shall be sent for trial by a jury at the {naming the court at which it would be (a) Thia aoi is a general one, and applies to both Upper and Lower Canada. 67 ':i:^ 'M!' ^«*[. \ ■■!:•■ • ^■i-': m. 630 Hattens^^ ill *( .,<. i > Mm 8 ) If r soonest tried\ and if the defendant consent to a summary trial, then the recorder shall reduce the charge into writing and read the same to him, and ask him whether he is "guilty" or "not guilty;" and if he say " guilty," shall proceed to pass sentence according to the provisions of this act; and if he say '"not ^uilty," the recorder shall enquire if he has any defence, and if he say that he has, the recorder shall hear the defence, and dispose of the case summarily. § 3, Where any person is charged before any recorder with simple larceny (the property alleged to have been stolen exceeding in value five shillings) or stealing from the person, or larceny as a clerk or servant, and the evidence taken is in the opinion of the recorder sufficient to put the party on his trial ; the recorder, if the case appear to him to bo one that may be properly disposed of in a summary way, nnd adequately punished under this act, shall reduce the charge into writing, and shall read it to the defendant, and then ask him whether he is guilty or not of such charge. If he say "guilty," the recorder shall cause a plea of guilty to be entered on the proceedings, and shall convict him of such offence, and commit him to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding six calendar month. Such conviction may be in the form C in the schedule, or to the like effect : provided always that such recorder, before he asks the party whether he is guilty or not, shall explain to him that he is not obliged to plead or answer, and that if he do not he will be committed for trial. § 4. In every case of summary proceeding under this act t'ue accused shall bo allowed to defend by couusel or attorney. § 5. Where any person is charged before any justice or justices with any offence mentioned in this act, and in tlie opinion of such justice or justices the case may bo a proper one to be disposed of by a recorder, or by [an inspector and superintendent of the police,] or a police magistrate, as hereinafter provided under this act, such justice or justicis may, if he or they see fit, remand him for further examina- tion before the recorder, or before [the inspector and super- intendent of the police of the nearest city,] or before the nearest police magistrate, in like manner as a justice or justices arc authorised to remand a party accused under 14 & 15 v., c. 90, § 13, (a) or under the 10 V., c. 197, § TJ. Provided that no- such remand shall be from Upper to Lower Canada, or vice versa, and provided that the party so (a) This aot applies oul^ to Lower Canada. ' ' r is,uvttnp* 631 a summary into writrng letber he is lilty," shall sions of this shall enquire the recorder lummarily. any recorder have hccn ling from the the evidence nt to put tlie ppear to him n. a summary lall reduce tlie iefendant, and eh charge. If ea of guilty to convict him of 1 gaol or house r -without hard 'endar month. 1 scheilule, or to ecordor, before shall explain Yor, and that if under this act sel or attorney. any justice or act, and in the lay be a proper n inspector and magistrate, a3 ticc or justice irther oxamina- ;ctor and supor- ,] or before the as a justice or 3cuscd under U ., c. 197, § Vi Upper to Lower t the party so remanded before the recorder of any city may bo examined and dealt with by the [inspector and superintendent] or police magistrate of the same city, and any person remanded for further examination before the latter, may be examined and dealt with by the former {i. e., the recorder). § 6. I^ the party be suffered to go at large upon recogni- zance as authorised under the last-mentioned acts conditioned for his appearance before a recorder under the next prece- ding section of this act, and do not appear accordingly, the recorder before whom he ought to have appeared shall certify (under his hand) on the back of the recognizance, to the clerk of the peace of the county or unions (in Upper Canada) the fact of non-appearance, and such recognizance shall be proceeded upon in like manner as other recogni- zances. § 7. Convictions and other proceedings under this act to be returned to the next quarter sessions. § 8. Restitution of the stolen property may be ordered by the recorder in cases authorising restitution. § 9. ilecorder's court to bo an open public court. § 10. The provisions of the 16 V. c. 178, {Summary Convictions 4c<,) shall not be considered as applying to any proceeding under this act. § 11. Conviction by recorder to have the satie effect as a conviction upon indictment, save that of forfeiture. § 12. Proceedings under this act to be a bar to further proceedings. § 13. Convictions not to bo quashed for want of form. § 14. (The inspector and superintendent of police for the cities of Quebec and Montreal), and the pohcc magistrate for any city in Upper Canada, sitting in open court, may respectively, in the case of persons charged before them, do all acts by thiij act authorised to bo done by recorders, and all the provisions of this act referring to re- corders and recorder's courts, and the clerks of the recorder's courts, shall be r.-^ad and construed, also as referring to such inspectors and superintendents, police magistrates and their courts and clerks respectively. § 15. This act not to affect the provisions of any act of this session for the more speedy trial and puiiishmcnt of juvenile offenders. § IG. Interpretation clause. Form A. Conviction. ) Be it remembered tliat on the day of to wit. ) in the year of our Lord , at , A. B. being charged before me the undersigned of the said cityt M h 4 4 't .< ) * I JV ( 1 1 r' ■ h ¥•{ ■ . '1.4'., IMi V I ! 1- ;■:*:' r i- »^f 532 wLutttm. and consenting to my deciding upon the charge summarily, js convicted before me, for that he the said A. B., &c., (stating the offence, and the time and place when and where committed) ; and I adjudge the said A. B. for his said offence to be imprisoned in the , and there kept to hard labour, for the space of Given under my hand and seal, the day and year first above. mentioned at aforesaid. J. S. [L. S.] Form B. Certificate of Dismissal. } I, the undersigned , of the city of , cer- to wit. 5 tify that on the day of in the year of our Lord , at aforesaid, A. B. being charged before me, and consenting to my deciding upon the charge summarily, for that he the said A. B., &c., (stating the offence charged, ami the time andjilare when and where alleged to have been committal), I did, having summarily adjudicated thereon, dismiss the said charge. Given under my hand and seal, this aforesaid. ,at Form C. day of J. S. [L. S.] Conviction upon a Plea of Q^uilty. > Be it remembered that on the day of to wit. \ in the year of our Lord at , A. B. being charged before me the undersigned of the said citv, for that he the said A. B. «&c., (stating the offence charged, and the time and place when and where alleged to have been committed), and pleading guilty of such charge, he is thereupon convicted before me of the said offence ; and I adjudge him the said A. B. for his said offence to be imprisoned in the (and there to be kept to hard labour) for the space of Given under my hand and seal the day and year first above- mentioned at aforesaid. J. S. [L. S.] Form of Indictment for Simple Larceny — 18 V., c. 92. County of ) The jurors for our Lady the dueen upon their to wit. \ oath present that A. B. on the day of in the year of our Lord one thousand eight hundred and at in the county of did feloniously steal (a gold icatch of C. D.) Form of Indictment for Stealing Money — 18 V., c. 92. County of i The jurors for our Lady the Queen upon their to wit, ^ oath present that on the day of in the year of our Lord one thousand eight hundred and A.H. at , in the county of , did feloniously steal a certain sum of money, to wit to the amount of pounds, the property of one C. D. Hefiifiilatilie ^mtmf^HSf* 633 mmarily, is , (stating the litted) ; and imprisoned pace of r first above- S. [L.S.] y of , cer- in the year of ed before me, e summarily, 3 charged, and een committed), smiss the iaid f ,at S. [L. S.] day of at , A. B. the said city, cc charged, and ^ccii committed), upon convicled lim the said A. (and there ^ear first above- S. [L. S.] il8 v., c. 92. leen upon their day of in M and at in itch of C. D.) il8 v., c. 92. [uoen upon their day of i« 3d and A.15. steal a certain Ids, the properly LAW. *By 32 G. III., c. 1, § 3, it is enacted that in all matters of controversy relative to property and civil rights, resort shall he 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 t ^ poor, or respecting bankrupts. LEGISLATIVE ASSEMBLY. For its constitution, &c., see titles " Constitution" " Par- liamentary Representation" and '■'•Elections." Members^ Indemnity for Expenses. By 12 V. c. 33, § 1, there shall bo allowed to each mem- ber of the Legislative Assembly attending at any such ses- sion 20s. for each day's attendance thereat, and 6d. for each mile of the distance between the place of residence of such member, and the place at which the session shall be held. § 2. To be paid by the clerk of the Assembly, on such mem- ber signing a declaration, to be kept by the said clerk, and stating the number of days' attendance, and the number of miles of distance for which such member is entitled to an allowance, and the amount of such allowance ; and that each day on which the member shall have attended any sitting of the Legislative Assembly, or of any committee thereof, and each day during the session on which there shall have been no sitting of the Legislative Assembly, or on which he shall have been prevented by sickness from attending any sitting, but on which he shall in either case have been in the place where the session is held, shall be reckoned as a day of at- tendance at such session. § 3. The necessary funds to be aJv-anced to the clerk of the Legislative Assembly out of any unappropriated part of the consolidated revenue fund of the province. § 4. To bo accounted for by the clerk in the same manner as moneys advanced to him for contingent expenses. Speaker. By 19 v., c. 41, whenever the speaker shall, from illness or other cause, find it necessary to leave the chair during any part of the sittings on any day, it shall be lawful for him to call upon any member to take the chair and to act as speaker during the remainder of such day, unless the speaker shall himself resume the chair before the close of the sittings for that day. LEGISLATIVE COUNCIL. Sec '•^Parliamentary Eepresentation." '('it mmm 634 tj'.'V i. b,-i mm -'J iliti' I. LIBEL. A libel has been usually defined to be any scandal written or printed, or otherwise expressed by symbols — Lamb. 64 ; and taken in its largest sense, sigm^cs any writing 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 printini^, writing, signs or pictures, in order to provoke to wrath, or expose him to public hatred, contempt and ridicule. — 4 Bl Com. 150. But words spoken, however malicious and un- true, and actionable at law, will not amount to libel. 1. Of Libels which affect the Public in general. All publications blaspheming the Almighty, or turning the Christian religion into ridicule ; all publications tending to vitiate and corrupt the minds and morals of the people ; any attempt made to degrade and vilify the constitution, and tending to circulate discontent among the members of the community and stir up 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 — arc more or less of a libellous tendency. So, any publication reflecting in an improper manner upon either house of parliament, is a libel at common law. To hold up tlio king's government to contempt and hatred, is also punishable as a libel. — It. v. Tuehin, Holt's Rep. 424. And any publication tendinfj to degrade and defame the sovereign or ruler of a foreign state upon terms of amity with this country, is a Ubel at common law. 2. Of Libels on Private Individuals. 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 tlie peace. — 4 Bl. Com. 150. General imputations, also, on a body of men, though no individuals are pointed out, arc indictable. — 2 Barnard, 138, 160. And a malicious defa- mation of a deceased person, if published with intent to vilify his memory and injure his posterity, is indictabk^ as a libel. — It. v. Topham, 4 T. 11. 120. 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 l^Vbth 535 to common sense as that which is expressed by TH'iting or printing. — 1 ffaw., c. 73, § 2, 3. So a defamatory writing expressed by the initials only of a person's name, is as com- plete as if the whole name had been expressed. — 1 Haw.y c. 73, § 5. By 13 & 14 v., c. 60, § 1-, upon the trial of any indict- ment for libel, the jury may give a general verdict of "guilty," or "not guilty,' upon the whole matter in issue, without bein<^ required to find the defendant guilty merely on the proof of publication, and may also find a special verdict if they think fit ; and the defendant may move in arrest of iudgnient, on such ground and in such manner as he might have done before this act. § 2. In an action for defamation the defendant may give in evidence in mitigation of damages, that lie made or offered a written apology before the com- mencement of such action. § 3. Or defendant may plead ill an action for libel, that the same was inserted in the newspaper without actual malice, and without gross negli- gence, and that before the commencement of such action, or at the earliest opportunity afterwards, he inserted in such newspaper a full apology, or had offered to publish such apology in any newspaper to be selected by the plain- tiff; with liberty also to pay into court a sum of money by way of amends. § 4. If any person shall publish, or threaten to publish, any libel, or shall directly or indirectly propose to abstain from or offer to prevent the printing or publishing of any matter or thing touching or concerning any person, with intent to extort any money or security for money, or any valuable thing from such person, or with intent to induce any person to confer or procm'e for any person any appointment, office of profit or trust, every such person, upon conviction, shall be liable to be fined any sum not exceeding £100, and to bo impri- joncd in the common gaol not exceeding tivo years. § 5. If any person shall maliciously publish any defamatory libel, knowing the same to be false, he shall, on conviction, bo liable to a fine not more than j£50, and to be imprisoned in the common gaol not exceeding one year. § 6. If any per- son shall maliciously publish any defamatory libel, such person shall upon conviction be liable to fine and imprison- ment or both («), as the court may award ; such fine not to exceed J^25, nor imprisonment six calendar months. § 7. On the trial of any indictment for a defamatory libel, the defen- dant may plead in defence the truth of the matters charged, 1 11 14 'U (a) So in tho act. >■ iMlrMst flu; -.y . ,! ill 1 .It] I' III '#^^d ii:v:! I ■" ■ 3 i i- .' ! ;i f- ! -2:' 636 mtth alleging that it was for the public benefit that the same should be published ; but the defendaet shall not be allo^votl to plead " not guilty," in addition to such special pica. § 8 Under the plea of " not guilty," it shall be competent to the defendant to prove that such publication was made without his authority, consent or knowldtigo, and that such publica- tion did not arise from want of duo care or caution on his part. § 9. In case of any indictment for libel by a private prosecutor, if judgment be given against the defendant he shall be liable to the prosecutor's costs, and vice versa the prosecutor shall be liable to the prosecutor's costs; such costs to be taxed by the clerk of the Court of Queen's Bench or Common Pleas, or their deputies, where the trial is had, and recoverable by attachment on the order of any judge of the superior court, or of the county court where the indictment was tried. 3. Of the Publication. No one is punishable for a libel unless he actually publish it to the world. Reading a libel in the presence of another without any previous knowledge of its libellous qualities! docs not amount to publication ; but if a man, hnow. ingly, lends or shows it to another, or repeats it in the presence of others, this is a publication. — 1. Haw,^ c. ":]• and not only he who publishes the libel himself, but also !ic who procures another to publish it, is guilty of the publica- tion. — 1 Haw., c. 73, § 10. So, the sale of a book in a bookseller's shop by his shopman, is prima facie evidence of publication by the master. — 1 Barnard, 30(3. 4. Of the Punislnnent. The punishment for libel is fine or imprisonment, or botli In matters of libel, justices of the peace have an oriirina! jurisdiction : and a party charged Avith the publication of a libel may be held to bail by a justice of the peace to appear at the sessions or assizes. — Butt. v. Conant, 1 Brod. .f B 548. ^ Information against a Party for Libel. County of , | The information ami complaint of A, []. to wit. ) of in the county of lulcon on call;, this day of 18 , before J. P., Esq., one of Lir Majesty's jubliccs of the peace for tiie said county. Thr ^a ij informant saitli, that in a certain printed book (or iu'\vs|)aiiei| printed and published at in the said county, by one G. M., and called \licrc sd out the name or title of the book (irjtu^xr] die following lioellous allegation is contained, of and conceriiiii;; this informant, \_here insert the libellous passage literatim'] and the %int iftnttu utOf SiHater €mvut». 537 same informant saith, that he hath been informed, and verily believes the said book, &c., containing the aforesaid libellous matter, was printed and published by the said G. M., with a view to injure, vilify, and defame, this informant, and to bring him into public hatred, ridicule and contempt ; wherefore he prayeih a warrant against the said G. M., and that he may be I'urther dealt with according to law. Sworn before me. Recognizance to Appear at the Sessions. To he taken in the usual form.'] The condition of this recog- nizance 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 holden in and for tne said county, and then and there answer to a bill of indictment to be preferred against him, the said G. M., for a libel on one A, B. of in the said county , and not depart the court witliout leave, then this recognizance to be void. Acknowledged before, &c. Indictment for a Libel. (ArcJibold.) County of , ) The jurors for our lady the duecr. upon their 10 wit. ) oath present, that J. S., lute of the township qI' , in the county of , schoolmaster, contriving, and unlawfully, wickedly and maliciously intending to hurt, injure, vilify anJ prejudice 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 lady Victoria, with force and arms, at the township aforesaid, in the county afore- said, unlawfully, wickedly and maliciously did write and pub- hsh, 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. [«/• //" tlic publication iccrr in any i>th(r maimer, 07nit the words ' in Un/crm,' ••<« 538 Hfn^ iFeticeo antr SiSSaut eoutseiOi. and householders of every township, at their annual township meeting, may choose not less than three nor more than twelve fit and proper persons for fence viewers, Avho are declared to be township officers, and shall make the same declaration and be liable to the penalties as other toAvnship officers. § 2. Each of the parties occupying adjoining tracts of land shall keep up, make and repair a fair and just pro- portion of the division or line fence between their several tracts, which line fence shall bo made on the line dividinrr such tracts, and equally on either side thereof; and in case of dispute as to the commencement or extent of such line fence, the same shall be submitted to the determination and award of three fence viewers, who shall, upon being notified by either party, attend at the time and place stated in sucli notice, and being satisfied that the other party has been duly notified, proceed to examine the premises ; and such fence viewers, or any two of them, shall determine any dispute in the matter between the parties, and their awjird shall le binding as far as concerns the making or repairing such fence ; and from thenceforth the occupiers shall respectively make and repair and keep in repair the part assigned in such award to each occupier, which award shall be in writing and signed by the fence viewers or a majority of them, and filed with the town clerk, and a copy given to each party if required. In case of any material change in the improve- ment and occupation of adjacent lots, another award niav be obtained in like manner ; but if the fence viewers shalffind such subsequent aAvard unnecessary, the cost of the refer- ence shall be paid by the party applying. § 8. Any party in tlie occupation of any tract neglecting or refusin'^ to make or repair an equal or just proportion of the fence for u period of thirti/ days after demand in writing from the other party, or after the award of the fence viewers, or if the party making the demand shall for such period noflect to make or repair his j)roportion, either party, after com- pleting his own proportion, may make or repair in a sub- stantial manner, and of good sound materials, the proportion of the other party, and may recover from him the value, not exceeding 28. Cd. per rod. (a) Any fence adopted at the last township meeting to be deemed a lawful fence; and if none adopted, the fence viewers are to decide what they con- sider a lawful fence. § 4. Any party interested may apply to a justice for a summons to three fence viewers to attend and view the fence and appraise the same ; and also for a |,':||':J'.l Uui (a) But eee 18 V., c. 137, as to increased price. Hftie :fftntt» anlv 2iCSa[tet eour^rtt. 539 gummons to the other party, requiring him to attend and slicw cause why the party claiming payment should not recover. § 5. Such fence viewers, upon being personally served four days previously with such summons, and any two of them being present, and having examined the fence and received evidence (to be given under oath if required), shall determine whether the plaintiff is entitled to recover any and what sum from the defendant ; and where the extent of such line fence has not been determined by the award of fence viewers, the said fence viewers, or any two of them, shall determine the same ; such determination to be final, and report made in writing under their hands to the justice issuing the summons ; and in cases where the plaintiff 13 entitled to recover, the fence viewers shall state what dis- tance of fence tkey have determined the defendant should have made or repaired ; and the fence viewers, if required, shall give a copy of such determination to either party before making such report. § 6. Such justice may issue sumraons for the attendance of witnesses before such fence viewers, who may administer the following oath : You do solemnly swear that you will true answer make to such questions as may be asked of you by either of the fence viewers now present, touchinjj the mutters which they are now to examine and determine. So help you God. Any person swearing falsely shall be guilty of perjury. § 7. The said justice shall transmit the determination of the fence viewers to the clerk of the division court, and a cer- tified copy to the town clerk to bo recorded ; and thereupon the clerk of the division court shall issue an execution acainst the goods and chattels of the defendant for the sura determined upon by the fence viewers, with costs, as hereinafter provided ; such execution not to be issued until forty days after the determination. § 8. If any party shall cease to occupy or improve his land, or shall lay the enclo- sure, before under improvement, in common, such party shall not take away any part of the division fence, provided the other party will allow and pay therefor so much as the fence viewers, or a r^ajority of them, shall in writing deter- mine to be the reasonable value thereof; and wherever any lands unimproved and in common shall bo afterwards en- closed or improved, the occupier shall pay a fair or just pro- portion of the division fence, the value to be ascertained and set forth in writing by three fence viewers in case the parties shall not agree, and the amount may be recovered in the game manner as hereinafter provided. § 9. In no case shall any person take away any part of a division or line fence f^i'v'-i:'^''*. f.'.f » :.!; ^:!l 'm' mM hi (V Ix-t ) 1 *'';■' |;-*l-.! !, » i mm 111 J'-i^^ ^ ■v 540 nine gtntt^ ann SKlatet eotttttes. adjoining to the next enclosure improved or occupied, unless the occupier of such adjoining lands refuse, after demand in writing, to pay for the same ; nor withont giving at least twelve months' previous notice. § 10. "Water fences to bo made in equal parts unless otherwise agreed ; and in case either party shall neglect or refuse to pay his share, similar proceedings to be had as respecting other fences. § li_ Where lands belong to, or are occupied by different persons bounded upon or divided by any brook, pond or creek not of itself a sufficient fence, in case of disagreement, the same may be submitted to three fence viewers, as before provided- and if in their opinion the same is not a sufficient barrier and that it is impracticable to fence at the true boundary line, they shall determine how, or on which side thereof, the fence shall be set up, or whether partly on one side and partly on the other ; and if either party shall refuse or neglect to maintain his part of the fence, the same may be done as in other cases, and the costs and charges recovered from the delinquent party. § 12. Ditches or water coursej for draining swamp or miry lands are to be made by the parties interested, in just proportions ; and in case of dis- pute as to the part, Avidth, depth or extent, the same is to be referred to three fence viewers, in the same manner as other disputes respecting fences ; and such fence viewers shall divide or apportion such ditch or water course amon;; the parties in a just and equitable proportion, according to their respective interests, in opening such ditch or water course, and shall decide upon the time to be allowed each party for opening his shara,; and the award of such fence viewers shall be made in the same manner and have the same effect as in case of division or line fences. § 18. If it shall appear that any owner or occupier be not sufficiently interested in the opening of such ditch or water course to make him a party, and at the same time it should be necessary that such ditch or water course should be con- tinued across his land, they may award accordingly; and the other party may lawfully open such ditch or water course across such land at his own expense, without being a trespasser. § 14. On neglect of any party, upon demand in writing, to open or make and keep open his share awarded by such fence viewers as aforesaid within the time allowed by them, either of the other parties may, after completing his own share, open the share of the party neglecting, and shall be entitled to recover from such other party no more than 28. per rod, in the same manner as pro- vided for line fences. § 15. Road allowances in the rear iLoti^=ttti H^onutu. 541 of any lot not travelled or required to be used by the pub- lic mny ^® lawfully enclosed as afjainst any private party : provided that such possession shall cease upon order made by two justices, directed to the township officer, requiring him to open the same. § IG. The following fees to bo taken under the act. To the Justices of the Peace. por summons to fence viewers Is. 3d. For subpoena, which may contain tiirce names Is. 3d. For transmitting copy of fence viewers' determination to division court and to township clerk Is. 3d. To the Fence Vieioers. 5s. Od. 2s. 6d. Is. Od. 4d. 2s. 6d. Per day each If less than lial fa day employed To the Bailiff or Constable employed. For serving summons or subpoena , Mileage— per mile To Witnesses. Per clay each ^ 17. The above fees to bo included in any execution to be issued, upon the party making oath before the clerk of the division court of the same liaving been paid. § 19. The former statute *4 W. IV., c. 1'2, repealed. Bv IH v., e. lo7, so much of the 8 V., c. 20, as limits the cost of making the fence to lis. Gd. per rod is repealed, and the amount is to be determined by the fence viewers. LOCK-UP HOUSES. r>y 10 & 11 Vic., c. 41, § o, district councils arc authorised to establish a lock-up house in any town or village containing not less than 100 adult inhabitants, and not being distant less than ten miles from the district town ; to be placed in charge of a constable, to be specially appointed by the magistrates in general quarter sessions ; sucli constable to bo a resident in such town or village, and one of the constables of the township ; said justices may allow such salary or fees as they think proper. § o })rovidos, that it shall be lawful for any justice of the peace residing at or near any town or village wliere such lock-up house may bo established, or nearer to the same than tiic district town, to authorise by written order the confinement or detention therein of any person charged on oath with any criminal offence, until such person may be fully examined and committed for trial to the h'< '3 MW :?.'% \3 ::';-■ 1>'< WW 542 %ovtf*» mn»^ K'j^ir;; .,(■11;: ; iii\;,. : ■ common goal, or dismissed (as the case may be), so that such confinement do not exceed two days ; also all persons found in the streets or highways in a state of intoxication, or con- victed of unlawfully desecrating the Sabbath ; and generally all persons convicted on view of such justice, or on the oath of one or more witnesses, of any offence cognizant by law so that such detention or confinement in the last mentioned cases do not exceed twenty-four hours, and to authorise the detention therein of any f orson committed to the gaol, until such person can be conveyed to gaol. § 6. The expense of conveying any prisoner to, and detaining him or her in such lock-up house, is to be defrayed in the ^amc uianner as the expense of conveying such prisoner to and keeping him or her in the common gaol. By ] '^ v., c. 80, §§ 1, 2 and 4 of the above act are repealed and §§ 5 & 6 are retained. § 3. Seems to be superseded by the subsequent act 13 & 14 V., c. 04. By 12 Y. c. 81, § 60, the municipal council of any incor- porated village are authorised to make by-laws for (amoriffst other things) establishing, maintaining and regulating Icok-up houses. By 13 & 14 v., c. t)4, § 10, it shall bo lawful for the iim. nicipal council of any county or union of counties to cstahlisli a lock-up house in any town, incorporated village or police village within their jurisdiction, and to establish and provide for such salary or fees to be paid to the constable placed in charge thoreof as thry may deem just and reasonable, andti direct the payment of such salary out of the county funds; and every such lock-up house shall be placed in cliarizc of a constable, to be specially appointed for that purpose by the magistrates of such county, at any general quarter scssioii> of the peace. Such constable shall be resident in such town or village, and be one of the constables of such town or of the township in which such village shall be situated. Pro- vided that nothing herein contained shall affect any lock-up house established under the laws heretofore in force, but iho same shall be and continue a lock-up house within the moan- ing of this section, although not in i.ny such town or incor- porated or police village : and that parties summarily con- victed under the petty trespass act, *4 W. IV., c. 4, may, in the discretion of the committing magistrate or mtigistriitos. be committed to the nearest lock-up house in the county in which the conviction took place, instead of the common gaol, LORD'S DAY. By statute 8 V., c. 45, § 3, any merchant, tradesman, HorTi^si 2ia(S^« 643 so that such ersons found ,tion, or con- nd generally r on the oath nt by law, so st mentioned authorise the he gaol, until lie expense of )r her in such iianner as the ecping him or t are repealed, superscdoil by I of any incoi- s for (airion!:?t ulatinglcci\-up ful for the iiiu- ties to cstaldisli lillagc or police »h and provide table placed in sonable, audt^i ( county funds; in charge of a purpose by the viartcr scssioi''; It in such town uch. town or of Isituatcd. I'rii- [ect any lock-np force, 1/at the jithin the nican- li town or incnr- lumniarily eon- ., c. 4, may, in or magistrntO". In the county in o common gaol mt, tradesman, artificer, mechanic, workman, labourer or other person, selling or offering for sale, or purchasing any goods, &c., or real estate, on the Lord's day, commonly called Sunday, or exer- cising any wordly labour or calling on that day ; or any per- son tippling or allowing tippling in any inn or tavern, &c., or being intoxicated, or brawling or using profane language in the public streets, or attending any political meeting on that day ; or playing at skittles, ball, foot-ball, ri>,cket, or any noisy game, or gambling, or racing on foot or horseback or in carriages, or fishing or hunting, or shooting any deer or other game, or setting any net or trap (except in defence of property) for .any wolf, beast or bird of prey ; or bathing in any exposed place of public worshin or private residence, on the Lord's day — shall, upon conviction betore a justice, ,,non the oath of one or more witnesses, pay a fiine not e' jceding <£10, nor less than 5s. \ 4. Proceedings to be by summons, and ez parte in case of non-appearance and proof of service of summons ; or the Justice may issue his warrant against the offender, and upon the party being brought up or apj jaring, the jurstice may proceed to hear and determine the case, or at once commit the offender to safe custody until the morrow or some other da\', according to circumstances, until the case is disposed of. A 5. Conviction to be in the following form : Forra of Conviction. %■' Be it remeiutored, tluit on the day of , in the year of „ur Lord , at , in the county of (or district, riding or division, as t/w casi: niai/ hr), A. B. of , is convicted before me, C. Dm one of her Majesty's justices of the peaco for the j;iid county (or district, riding or division, as the case may be'). lov that he tlie said A. B. di(l (speclfi/ the off'cnee, and the ernie luid pidi'e ichen ami ichere the v^hjc teas enmmitteil, as the ease may In) ; and I, the said (.'. D.,adjudL>^ J^e said A. B. for liis olfence 10 pay (innnedialeiy» or on or rv-i.-rc the day of ) the buiu of , ami also the sum of for costs ; and in default uf payment of tlic said sums respectively, to be imprisoned in ihoiommoii gaul dI the said county (or district, riding or division ((.< liw atsc may In ) for tlie space of months, unless the said sums shall sooner be paid ; and 1 direct that the said sum of (the j)! iialfy) shall be paid as follows : that is to say, one moiety thereof to the party charging the otlence, and the other moietv to the treasurer of the district, to be by him, the said treasurer, upplivd according to the provisions of the act [//i.sr/Y tk tidciif this ael']. Given \iiider my hand ami seal, the day mid year first above mentioned. C. D., ./. P. [L. S.] 1 i ,.\;'f ^\\ ''S:i ■■Mi ■■' y^^. ■I ..1 ■'If -^i M -1 § G. Conviction not to be quashed for want of form. 544 ill; itfRi-J '''■;' ii' .««i!i I ' iii'. i i :i M k v, ILOtttvitu. § 7. Penalties and costs to be levied by distress and sale • and in case of insuflScient distress, the offender may be com! mitted to the common gaol for any term not exceeding three calendar months, unless such fine and costs be sooner paid. § 8. Prosecutions to be within one calendar month. § 9. Ap- peal alloAved to the general quarter sessions. 10. Convic- tions to be forwarded to the sessions. § 11. Actions against any person acting in the execution of this act to be commenced within three calendar months, and one calendar month's pre- vious notice in writing to be given ; the general issue may be pleaded, with tender of amends, and full costs to defendant in ca.o*' '^f decision in his favour. § 12. Half the penalty to go to tne informer, and the other half to the district. § Thii, act to be a public act. § 14. Not to cxtrTul to Lower Canada, or to Indians. By 7 v., c. 14, § 2, all persons going lu, w returning ti-om divine service on any Sunday or obligatory holiday Avidi tlioiv own carriages, horses, or beasts of draught, as shall also tlkir families and servants with such carriages, &c., pas- f< " f)'(,, through any turnpike, or toll gate on any turnpike road in this province. By 10 V., c. 171*, § 8, search warrants and other warrants may be issued on a Sunday. By the Municipal Act, 12 V., c. 81, the mun'cip:;! authori- ties in incorporated villages, towns and cities .;r^ authorised to make by-laws for enforcing the due observance of the Sabbath. LOTTERIiiS. By 10 v., c. 49, § 1, if any person t^hall, after the pass- ing of this act, make, print, advertise or publish, or cause w procure to be made, ])riiited, advertised, or published, any proposal, scheme, or jilan for advancing, lending, giviiii', selling, or in any way disposing of any property, either ro;d or personal, by lots, ciu'ds, tickets, or any nioile of oliaiia' whatever, or shall sell, b;irier, exchange, or otherwise dispose of, or cause or procure, or aid or assist, the sale, barter, ex- change, or other disposal of, or ofler for sale, barter nr exchange any lot, card, ticket, or other means or device, lur advancing, lending, giving, selling," or otherwise (Jisposin^f * any property, real or personal, by lot; , tickets, or any iii' of chance whatever, such person shall, upon conviction tli.ii- of, before any mayor, alderman, or other justice of the pean, upon the oatli of any one or more credible witnesses, or upun "onfession thereof, forfeit and lose the sum of .£o, for eaili and every such offence, tugether with costs, to be levied by •iiatress and sale of the offender's goods, by warrant under ;rvance of the IBLunutit Mntilum, )9rotiftufal« 545 the hand and seal of any such mayor, alderman, or other justice of the peace, of the city, town, county or place where such offence shall be committed, which said forfeiture shall be applied hal '^ to the informer, and the other half shall be paid to the treasurer or chamberlain of the municipality in which such offence shall be committed. § 2. Any person buying, bartering, exchanging, taking or receiving any such lot, card, ticket, or other device as aforesaid, shall, upon convic- tion thereof, in like manner as above mentioned, forfeit and lose the sum of £5 for each offence, to be recovered and ap- plied as aforesaid. § 3. Any sale, loan, gift, barter or ex- change of any real or personal property, by any lottery, ticket, card, or other mode of chance whatever, depending upon, or to be determined by chance or lot, shall be void to all Intents and purposes whatsoever, and all such real or personal property so sold, lent, given, bartered or exchanged, gball be forfeited to such person as shall sue for the same by action, bill or information in any court of record in this pro- vince ; provided always that no such forfeiture shall affect any right or title to such real or personal propcrt^l acquired by any f>onu fide purchaser for valuable consideration, with- out notice. § 4. If any person so convicted by any mayor, alderman or other justice as aforesaid, shall not have suffi- cient goods and chattels whereon to levy the penalties autho- rised by this act, or shall not immediately pay the said penal- ties, or give security for the same, such mayor, alderman or justice, convicting such person, shall commit such person to the common gaol of the county or district in which such offence >vas committed, for a period not exceeding three calendar months, or until such 5ne and costs arc paid. § 5. The pro- visions of this ac*. shall extend to the printing or publishing, or causing to bo printed or published, of any advertisement, i^clicuie, proposal or plar of any foreign lottery, and to the sale or offer for sale of ar. y ticket, chance or share in any such lottery, or to the advertis jmout for sale of such ticket, chance nr sliiire. § 0. Intorpreiation of the terms " personal pro- perty" and "real property" and what shall be included therein. ^' 7. Appeal against convictions as in other cases. (> s. This act not to extend to the division of property held by jdint tenants or tenants in common. § U. Act to take effect on the first day of January, 1857. LUNATIC ASYLUM, PROVINCIAL. l{y tlie 16 v., c. 1S8, § 2, the provincial lunatic a&ylum in Toronto, with all the property real and personal, and all the effects belonging to it is vested in the Crown. '^ 4. Its m U [■tvW ■m f-' nr::!^* !|>..„..i|,:nMfu4i m' '"'" 546 Hunatfe ^^slumf 39roiifntfal« financial affairs to be managed by a "Bursar," to be appointed by the governor. § 4. Who shall also appoint a medical superintendent who shall reside in the asylum, and shall direct and control the medical and moral treatment of the patients, hire and discharge keepers and servants, watch over the internal management and maintain the discipline and due observance of the by-laws of the institution, report the condition thereof to the visiting commissioners, at each visit and annually to the Governor, and to each house of parlia- ment within ten days after the opening of each session. § 6. The Governor authorised to appoint at least four times a year a commission of not less than four persons, two only to he resident in Toronto, whose duty shall be to examine and report on the manner in which the institution is conducted and to examine and forward to the Governor, with their observations thereon, the reports made to them by the medical superintendent and bursar ; and further to frame such hy-lain 03 may seem advisable for the peace, welfare, and "ood government of the institution, which by-laws shall have effect when tl^ Governor shall have signified his assent thereto. The coimnissioners to keep an exact record of all their pro- ceedings. § 7. No person shall be received into tlie institu- tion without a certificate from three medical licentiates, signed and verified by the reeve of the township, or incorporated village, or the mayor of the city, or incorporated town from which the lunatic may have been sent, and in the absence of the reeve or mayor, by the deputy, or other person who shall for the time being be authorised to act in the place of the reeve or mayor, which certificate shall state that the sub- scribing medical licentiates at the same time, and in the presence of each other, examined the patient, and after due inquiry into all necessary facts relating to his case, found him to be a lunatic ; and such certificate shall be sufficient authority to any person to convoy the lunatic to the said asylum, and to the authorities there to detain him as long as he shall continue insane. § 8. When any lunatic sent to the asylum shall be under twenty-one years of age, having a father or mother able to pay for his maintenance, or a guar- dian or committee, it shall be the duty of the bursar ami medical superintendent to send a copy of the certificate nuii- tioncd in the last section, attested under their hands, to such father, mother, guardian, or committee, with a certificate of the admission of sucii lunatic, and of the amount payable per ([uartcr to the asylum. § 9. Such amount to be demanded quarterly in January, April, July, and October, by tlic bursar and medical superintendent from the father, mother, Uttnntfe ^nnlnta, 9vi\iuit. 547 guardian, or committee, and in case of non-payment said bursar may apply to the county court judge upon affidavits, and upon a rule to shew cause, being satisfied that the father or mother of the lunatic is able to pay for his maintenance, or such guardian or committee is in possession of property of the lunatic, the bursar shall be entitled to an order for the amount, and costs, and a writ of execution may issue thereon, or the judge may, if he thinks fit, direct an issue to be tried before a jury previous thereto. § 10. If such lunatic be possessed of property and have no guardian or committee, and if such property, in the opinion of the bursar, be more than sufficient to maintain the family, (if any) of such lunatic, it shall be lawful for the bursar to take possession of the same, or a sufficient part, with full power to manage and appropriate, take or recover possession of, lease, mortgage, sell and convey all or any part in the namt of the lunatic, or as his committee under this act, as fully as if such lunatic could or might do, if of full age> and compos mentis. Proviso, that before any sale the bursar shall report the case and terms of sale to the county court judge where the property is situate, for his approval, and such bursar shall be uccountablo and subject to the same responsibility as any trustee, guardian or com- mittee would be. § 11. In case of disputed right to property the county court judge may cause an inquisition to be hold to determine such right. § 12. The Governor authorised to fix salaries of medical superintendent not exceeding ilaOO, and bursar not exceeding X300, and commissioners not exceeding 25s. per diem, payable out of any funds appropriated for the support of the said asylum. By 20 v., c. 28, § 14, the Governor is authorised to appoint five fit persons to be inspectors of all public asylums, hospi- tals, common gaols, and other prisons in this province. § 15. Meetings of the board provided for. § 10. The said inspec- tors shall have and perform all the powers and duties vested in, or to be performed by the inspectors of the provincial penitentiary; and by the commissioners of the provincial lunatic asylum under the 16 V., c. 188. § 17. From and immediately after the first appointment of inspectors under this act, the powers and duties of the commissioner • under the above mentioned act relating to the lunatic asylum shall cease, and the medical superintendent and bursar shall make their annual reports to the said inspectors. LUNATIC ASYLUM— PRIVATE. By 14 & 15 v., c. 84, § 1, justices of the peace of any county in general quarter sessions are authorised to license -'■itL..^ '■^ '4i:^' l|:^i ^ -'^ni iti 548 %ununt msfimmp IPrftiatr. any person to keep a house for the reception of lunatics : three or aore justices to be annually appointed with one physician or more as visitors, who shall at their first meeting take the oath of office prescribed. § 2. Vacancies to be supplied by the justices in sessions. § 3. A list of such visitors within fourteen days from their appointment to be published by the clerk of the peace, and sent to the Governor within three days after appointment, under a penalty of £2 10s. for every default. § 4. The clerk of the peace, or some other person to be appointed by the justices in sessions, to be clerk to the visitors, who shall summon such visitors as the justices in sessions shall appoint : every such meeting to be held pri- vately, and so that no proprietor, superintendent, or person interested or employed m or about any house to be visitf d shall have notice of such intended visitation ; clerk to take a certain oath of office ; and the name of such clerk within fourteen days after his appointment to be published bv the clerk of the peace, and within three days communicated to the Governor, under a penalty not exceeding £2 10s. : clerk- to be allowed such salary as the justices shall direct. § 5. "Visitors' clerk may have an assistant who shall also take the oath of office prescribed. § 6. No person shall act as a visitor, or clerk, or assistant-clerk, or act in ^rantin" licenses, who shall within one year next preccdiiif^ be directly or indirectly interested in any such licensed house : and no physician, being a visitor, shall sign any certificato for the admission of any patient, or professionally attend upon any patient in any such licensed house or hospital, unless directed to visit such patient by the person upon whose order he has been received into such house or hospital, or by the pro\ inoial secretary, chancellor, or vice-chancellors, committee, or by a judge of no superior court : any visitor, clerk, or assistant-clerk becoming interested, after his ap- })ointinont, shall bo disqualific;! to act, and if contimiins: to act >liall be guilty of a niisdenioanor ; and if any physi- cian, being a visitor, shall sign any certificate for admission. or sli:ill prf)fes.si<)nally attend any such patient (c.vf;cpt as aforcsiiid) he .shall forfeit for each ofionce £50. § 7. Any person desiring to have a house licensed for the reception of lunatics shall give notice to the clerk of the ])Ciu'o fourUcii clear days before th»> ."sessions, with the name of :iny proposod superintendent accompanied by a pl.m of such house, and a statement of the number of patients proposed to h noceived ; and whether for mule or femah j)atients, or both. § 8. The license not to extend to more than one house. § I*. No alteration to be made in the hvmse without notice and consent Utttiatf t ^unlumf ]9tfli«te. 549 in writing of two visitors. ^ 10. Any person -wilfully giving an untrue or incorrect notice, plan, or statement, or des- cription to be guilty of a misdemeanor. § 11. Clerk of the peace to send a copy to the provincial secretary of any such license granted within fourteen days afterwards, under a penalty not exceeding ^20. § 12. Provision for renewal of licenses. § 13. License to be under the hnnds and seals of three or more justices, the chairman being one, and in the form in the schedule to the act ; and shall be granted for a period not exceeding thirteen months. § 14. Persons ob- taining licenses to give security in iBlOO, with two sureties in £50 6ach, or one surety in iElOO. § 15. Kates to be cbai'fed for such licences, viz., 10s. for every proposed patient, but not less than £15 in the whole. § 16. Moneys derived from licenses to be applied in payment of clerk's jalary, and other expenses. § 17. Annual account of receipts and payments signed by two visitors at the least to be laid bv the clerk of the peace before the sessions. § 18. In case of incapacity of the persons licensed by sickness or otherwise, or in case of death, such license may be transferred by three justices indorsing the same to the superintendent, or to such person as such justices shall approve. § 19. Provision for the transfer of patients to a new building in certain events. Description of such new building, with plans, &c., to be first ;:ivcn. § 20, The Governor authorised to revoke any license upon the recommendation of a majority of the justices in jossions. § 21. No person to be received into any such licensed house as a lunatic, boarder or lodger, without an linler nndcr the hand of some person according to the form, and particulars required in schedule B. ; nor without the medical certificates according to the form in schedule C. of [n'o physicians (not partners), nor brothers, nor father and son, each of whom shall separately have examined the patient not more than seven clear lays previous to his rocoption into the house, and shall have signed and dated the same on the day of examination: any person receiving or detaining any person as aforesaid without such order and medical certificates, and any physician who shall knowincly sign any such, which shall untruly state any of the particulars shall be guilty of a misdemeanor. '^ 22. The jdiysician signing shall also specify the facts upon wliirh ho has formed his opinion that the person is a lunatic or in,saue person, idiot, or person of unsound mind. §2"). No person shall receive to board or lodge in any Louse not licensed under this act, or take '^^»M,r<:e of any in- sane person, without first having obtaineu ...., medical certi- . ,< ^^4 if. ^^■■'M *',■■«'■! tin iiii^li'l': I til •^UW .':.:-: nn f. 550 Hunattf e ^Sfilutn, 39tfbate* ficates required by this act for admission into a licensed house; and every person who shall so receive any such insane person to board or lodge, &c., shall within three calendar months transmit to the clerk of the visitors of the district, a copy of such medical certificates, sealed and endorsed " private re- turn," and annually on the 1st of January, or within seven days after transmit to such clerk, a certificate signed by ten physicians describing the then actual state of mind of such insane person to be endorsed "private return," and eveiv person who shall fail herein shall be guilty of a misdemeanor. § 24. Under special circumstances a patient may be received into such licensed house, upon such order as aforesaid, witli the certificate of owe physician only, provided that such order state the special circumstances which may have pre- vented the examination of the part}' by two physicians. Eut in such case, such certificate shall be signed by some other physician, not connected with the house, who shall have specially examined the party within three days after admis- sion; and any person, who shall have received a patient upon the certificate of one physician only, permitting him to re- main beyond three days without such further certificate shall b& guilty of misdemeanor. § 25. No physician interested in, or a regular professional attendant on a licensed house, shall sign any certificate for reception : nor shall any physician related to or connected with the party signing the order for admission, sign any certificate for reception. The off'cndcr in any such case to be guilty of misdemeanor. •^ 2(3. Every proprietor or superintendent receiving a lunatic into a licensed house shall within two days make an entry thereof in the "book of admissions " according to the form iii schedue D., under a penalty not exceeding £2 lOs. Any person knowingly making an untrue entry of particulars t*u be guilty of misdemeanor. § 27. The form of mental dis- order of the patient to be entered in the book of admissions by the medical attendant within seven days after admission. under a penalty not exceeding <£2 10s. §28. I'roprietoror superintendent after two clear days, and before the expiration of seven days from tlie admission of any patient, shall trans- mit a copy of the order and medical certificates, and a notice and statement as in schedule E., to the visitors' clerk, and in case of neglect shall be guilty of misdemeanor. § 20. In case of the escape of any patient the proprietor or superin- tendent shall within two clear days next after transmit a notice thereof to the visitors' clerk, stating the christian and surname of the patient, and his or her state of mind, and the circumstances connected with such escape; and the like i'iil: ased house; sane person idar months it, a copy of " pi'ivate re- witlun seven igned by ten iind of sucli ," and evevy nisdemcanor. y be received t'ovesaul, ^vitll ed that sucli nay bave pre- ysicians. But by some otliev no shall bavo ^s after adrals- a patient upon ting him to ve- certificate shall m interested in, ped bouse, shall I atiy pbysician ^ning the order jccption. The nusdemeanov. leiving a lunatic make an entry ir to the form in "£■2 10s. Any if particulars tu |i of mental tliv ,k of admissions lafter admission, 18. Proprietor or ■c the expiration .cnt, shall trans- tcs, and a notice titers' clerk, and anor. § 2'.K In ,ctor or suporm- ,after trausiui^ a ,lic christian and of mind, and the and the like Hunatf t ^fit^lutif , llrfHatr. 55i notice if the patient shall have been brought back, and when brought back, and the circumstances, and whether with or without a fresh order and certificate, under the penalty of j£lO. § 30. An entry to be made by the proprietor or su- perintendent within two clear days after the removjil, dis- charge or death of any patient according to the form in schedule F., and he shall also within the same two days transmit a written notice thereof, and the cause of the death, removal or discharge of such patient, if known, to the visitors' clerk according to the form in schedule G., and in case of default or untrue statement, such proprietor or superintendent shall be guilty of misdemeanor. § 31. In case of the death of any patient in the house, a statement of the cause, with the Tiame of the person present, shall bo drawn up and signed by the medkal attendant of the house, and a copy duly certified hy the proprietor or superintendent transmitted to the nearest coroner, and to the visitors' clerk, and to the person who signed the order for such patient's confinement, within forty- eiirht hours after his death, under a penalty not exceeding £50. § 32. Any superintendent, ofiicer, nurse, attendant, servant or other person employed, in any way abusing or ill treating, or wilfully neglecting any patient shall be guilty of misdemeanor ; and in the event of the release of any person who shall consider himself to have been unjustly confined, a copy of the order and certificates upon which ho was con- fined shall, at his request, be furnished to him or his attorney by the visitors' clerk without fee or reward. And it shall be lawful for the Governor to direct the prosecution on the part of the Crown of any person concerned in the unlawful taking of any of her Majesty's subjects as an insane patient, or any person concerned in the neglect or ill-treatment of any pa- tient. § 33. In every house licensed for 100 patients there iliall be a physician resident as superintendent or medical attendant, and every house licensed for less than 100, and more than 50, (in case such house shall not be kept by or liave a resident physician), shall be visited daily by a physi- and every liouse licensed for less than 50 patients (in the same shall not be kept by a resident physician). cian case sliall be visited twice in every week by a physician ; pro- vided always, that it shall bo lavful for the visitors to direct such house to be visited by a physician at any other time or times, not oftener than once a day. § 34, When any house is licensed for less than eleven patients, any two of the visi- tors may permit such house to be visited by a physician at greater intervals, but not greater than onco in every two weeks. § 35. Every visiting physician shall once in every llivi } ! :^ 'i V I' .'«'■ I Mm W ; r I ^:. i^ 5i ■ ,'m rr-H^iv ■ \VV i\' ..i 1 , •I' 552 Htmatfc ll0slttin» jptiHiite* week (or when distant intervals are permitted, then on every visit), enter and sign in the " medical visitation book," ^ report shewing the date thereof, the number, sex and state of health of all the patients, the christian and surname of every patient under restraint, or in seclusion, or under medi. cal treatment since the date of the last report, the condition of the house, and every death, injury and act of violence affecting any patient since the last report, according to the form in schedule H., under the penalty of .£20, and any u^. true statement in such report to be a misdemeanor. § 3(j The mental state and bodily condition and medical treatment of each patient to be entered by the resident or attendant physician in the "casebook," copies of such entries to Ije furnished to the visitors if required, under a penalty for nc"- lect not exceeding j£10. § 37. Every licensed h#usc shall be visited by two at least of the visitors (one a physician i four times at the least in every year, at such times as the jus- tices shall direct ; and such visitors may and shall inspeet every part of the house and ground, &c., appurtenant, ami see every patient, and enquire if any under restraint, and why, and inspect the order and certificates for reception, an 1 enter a minute in the "visitors' book" of the then condition of the house and of the patients, and the number under re- straint, and any irregularity in the order or certificates, anl whether previous suggestions (if any) have been attended to, and any observations they may deem proper. § 158. Tlit proprietor or superintendent shall shew to the visitors cverv part of the house and every patient. And every projjriet 'r or superintendent who shall conceal or attempt to oonceiil, or refuse or neglect to shew any part of such house, or anv part of the ground or appurtenances, or any person detainel therein to the visitors or any person authorised to visit anl inspect the same, shall bo guilty of misdemeanor. ^} oi', Visitors to enquire where divine service is performed tlurein, and to what number of patients ; and whether any system ot coercion has been adopted and the result thereof, anda,'■■',> , m "1^4. -'Ill '■' '■:::' ■i.'.ii'.r,! IMAGE EVALUATION TEST TARGET (MT-3) ^O ^ A'^ ^ 1.0 1.25 ■^ 1^ 1 2.2 I.I 1.*^ 1^ 1.8 U 11.6 Photographic Sciences Corporation 23 WIST MAIN STMIT WnSTIR.N.Y. 145S0 (7l6)t7a-4»03 ^ I rMf^jfljrtii^i-'' itm !'■'■'' liai M-h «!■■ i: ff^^ W ' i^:j^t. 654 ILttnaliti^ Hangerotts. to the original order for his admission shall remain in force. § 55. Proprietors may plead the order for admission of any patient in bar to certain legal proceedings. § 56. Visitors may summon and examine witnesses upon oath ; any witness refusing, without lawful excuse, to incur a penalty not ex- ceeding £50, recoverable before any one justice. § 57. Witnesses to be paid their expenses. §58. Pecuniary pen- alties under this act recoverable before any two justices, and the summons may be issued by one. The justices may, if they think fit, reduce any penalty to any sum not less than one-fourth, and may levy the amount, with costs, by distress and sale of the goods and chattels of the offender, and any two such justices may order the person convicted to be kept in custody until the return of such warrant, unless the of- fender shall give security for his appearance within seven days, and in default of distress, such justices may commit the offender to the common gaol or house of correction for any term not exceeding t?iree months, unless penalty and costs sooner paid. Penalties, when recovered, to be paid to the clerk of the peace, and accounted for as hereinbefore directed with respect to license moneys. § 59. Conviction to be in the form prescribed in the act, or to the same eifect, § 60. Appeal given to the quarter sessions. § 61. Actions against any person for any thing done in pursuance of tliis act, to be brought within twelve months. § 62. The visitors' clerk, on their order, may prosecute for penalties, and no other person shall prosecute without order of the visitors, or consent of her Majesty's attorney or solicitor-general. § 63, Transmission of any notice, statement or other document required by this act through the post-office, or left at the office of the clerk of the peace, to be deemed sufficient, and a bar to proceedings for omission. § 64. Costs and expenses incurred by or under the order of any visitors, to be paid by j the clerk of the peace, and included in his accounts. § 6o. Interpretation clause. § 66. This act not to extend to tlie provincial asylum at Toronto, or the asylum at Bcauport, near Quebec. By 20 v., c. 28, § 32, inspectors of gaols, &c., under tliij act, arc required to visit and report to the Governor, once in the year at least, upon the state and management of every private lunatic asylum, with power to the Governor to sus- pend or revoke any license granted for the same. LUNATICS DANGEROUS. By 14 & 15 v., c. 83, <^ 3, and for the better prevention of crimes by " persons insane," it is enacted that if any person J^atliiners* 555 shall be discovered and apprehended under circumstan ce that denote derangement of mind, and a purpose of committing some crime for which, if committed, he would be liable to be indicted, and any of her Majesty's justices of the peace before ;vhom such person may be brought shall think fit to issue a warrant for committing him or her as a dangerous person suspected to be insane, such cause of commitment being plainly expressed in the warrant, the person so committed shall not be bailed except by two justices of the peace, one being the justice who has issued such warrant, or by the court of general quarter sessions, or b^ one of the judges of her Majesty's superior courts of law oi equity at Toronto. § 5. And whereas there are sometimes persons who by lunacy or otherwise are furiously mad, or so disordered in their senses as to endanger their own persons or property, or the persons or property of others if permitted to go at large. Be it therefore enacted that it shall be lawful for any two or more justices residing in any city, town, village, township, parish or place where such lunatic or mad person shall be found (of whom the chairman of the quarter sessions shall be one) by warrant under their hands and seals directed to the constable of any such city, town, village, township, parish or place, or some of them, to cause such person to be apprehended and kept safely locked up in some secure place within the district or county, as such justices shall direct or appoint, if the last legal settlement of such person shall be in any parish, town or place within such district or county ; and if such settlement shall not be there, then to the place of his or her last legal settlement, and shall be locked up by warrant of tAvo justices of the district or county to which such person is so sent, of whom the chairman of the quarter sessions shall be one in manner aforesaid, and the reasonable charges of removing, keeping and curing such lunatic, shall be paid by order of two or more justices directing the treasurer of the municipality where any goods, chattels, lands or tenements of such lunatic shall be to seize and sell so much of the goods and chattels, or receive so much of the rents as will be necessary to pay the same, and to account for the same to the next quarter sessions. But if such lunatic has not an estate more than sufficient to maintain his or her family, then such charge shall be paid by the municipality to which such person be- longs by order of two justices directed to the treasurer. MACHINERY. By 1 Vic, c. 18, § 1, it is enacted that the owners of all steam boats, steam cars, and steam carriages, mills, and other II ,:i m l|:i ">■*' 4 •■U:^,.; W;^!i,: \ m Vf 2 IC"!- ;■ .Vi pi ^4, mi iiiy .jirTt;? 656 M^^ititvp. buildings, where machinery is, or may hereafter be used shall erect, or cause to be erected, good substantial guards round the machinery of such steam boats, &c., so as to pre- vent passengers and other persons from coming in contact with such machinery. § 2. It is enacted, that it shall be the duty of the collector of customs of any port to enter steam boats, &c., to examine the guards of the machinery and if not properly erected so as to secure the safety of persons when the machinery is in operation, the said collector or his deputy shall notify the same to the master or person in charge, and direct him to make the necessary and substan- tial guards. § 3. It shall be the duty of every justice of the peace, within the district in which he shall reside and usually act as a justice to enter into or upon all buildings wherein machinery is used, or shall hereafter be erected, and examine the same ; and if upon such examination, the guards about such machinery shall be found insufficient, such justice shall notify the same to the owner or occupier of such building, and direct the necessary guards to be erected. § 4. In case the master or person in charge of any steam boat, &c., or the owner or occupier of any building wherein machinery is or shall be erected, shall neglect or refuse to comply wltli the directions of such collector, or justice, and being there- of convicted before one or more justices, he shall forfeit and pay for every such offence any sum not exceeding one pound, and in default of payment, with the reasonable costs of con- viction, such offender shall be sent to the common gaol of the district within which such offence shall have been com- mitted for any period not exceeding thirty days. § 5. If, upon inspection by the collector or justice, of any steam boat, or building, &c., the guards are found safe and sub- stantial, such collector or justice shall deliver to the person in charge, and to the proprietor of such building, a certificate to that effect, which shall be a good protection for six calen- dar months, provided such safeguards shall be kept in good repair. By 4 & 5 v., c. 26, § 5, if any person shall unlawfully and maliciously cut, break, destroy, or damage with intent to destroy or render useless, any threshing machine, or any machine or engine, whether fixed or moveable, prepared for or employed in any manufacture whatever (except the manu- facture of silk, woollen, linen, or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any frame work, knitted piece, stocking, hose, or lace), every such offender shall be guilty of felony, and being convicted thereof, shall shall unlaTvfully ,gc with intent to machine, or any ble, prepared for except the manu- lods, or goods of ■with each other, ,ny frame work, jry such offender ■ted thereof, shall M^litiom Mfnvs* 557 be liable, at the discretion of the court, to be imprisoned at bard labour in the provincial penitentiary for any term not ]ess than seven years, or in any other prison or place of confinement for any term not exceeding two years. MAINTENANCE. Maintenance is an unlawful taking in hand or upholding of quarrels or suits, to the disturbance or hindrance of common right ; and is not only malum prohibitum both by the common law and by statute, but is also accounted malum in se, as having a manifest tendency to oppression by encouraging and assisting persons to persist in harrassing their neighbours with suits, which perhaps they would not venture to prosecute of their own accord. It is punishable at common law, by ine and imprisonment ; and by the 32 H. III., c. 9, with a forfeiture of £10. A court of record, also, may commit a man for an act of maintenance done in the face of the court, as for a contempt. — 2 Inst. 212. 1 Hato. c. 83, § 36. There arc some acts of maintenance which under certain circum- stances, are justifiable. A father, a son, or an heir apparent to a party ; or the husband of an heiress apparent, may lawfully lay out money for the party to prosecute his suit. Few pro- secutions are, however, now instituted for maintenance ; for more persons than one are generally implicated in this offence, and then the common practice is, to indict them for con- ipiracy. MALICIOUS INJURY. Maliciof i Injury to the Person. Poisoning or Wounding. — By 4 & 5 V., c. 27, § 6, who- soever shall administer or cause to be taken by any person any poison or other destructive thing, or shall stab, cut, or wound any person, or shall by any means whatsoever cause to any person any wilful injury dangerous to life, with intent in any of the cases aforesaid, to commit murder, shall be guilty of felony, and being convicted thereof shall suffer death. Attempt to Murder. — *^ 10. Whosoever shall attempt to administer to any person any poison or other destructive thing, or shall shoot at any person, or shall by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, sufTocatc, or strangle any person, with intent in any of the cases aforesaid to commit the crime of murder, shall, although no bodily injury shall be eifected, be guilty of felony, and being convicted th roof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial !«■=■ m II "(•■■ ':r:-^ 'M,- i' J;1li||.;! n ■i'S 'J"-!cf :;^ ;' 1 ■ mi p;j' lip *, ^.( 'iii •:''J - *■ 558 M^Utiouu Mints, penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceedinfr two years. '^ Shooting, Cutting and Maiming. — § 11. Whosever shall unlawfully and maliciously shoot at any person, or shall draw a trigger or in any other manner attempt to discharge any kind of loaded arms at any person, or shall stab, cut or wound any person with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grevious bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. By 18 v., c. 92, (criminal law amendment act), § 30, if any person shall unlawfully and maliciously inflict upon any other person, either with or Avithout any weapon or instruments any grievous bodily harm ; or ilawfully and maliciously cut. stab, or wound any person, any such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned, with hard labour, in any gaol or prison for any term not exceeding two years, or in the provinciiil peni- tentiary for any term not less than two, nor more than five years. § 31. If upon the trial of any indictment for any fclonv (except murder or manslaughter) where the indictment shall allege that the defendant did cut, stab, or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing or wounding charged in the indictment, but shall not be satisfied of the felony ; then the jury may acquit of the felony and find the defendant guilty of unlaivfulhj cutting, stabbing or wounding, and thereupon such defcndaiit shall be liable to be punished as in the 30 §. With respect to the crime of stabbing, cutting or wound- ing, it may not be unimportant to remark upon its clami- fication as an offence. If committed with an intent to murder it is a capital offence, punishable with death. If with the intent only of maiming, disfiguring, or disa- bling a party, then, although a felony, it is punishable with less severity. But where the offence is committed without any manifest felonious or criminal intent, as where it is done in the heat of passion, and without pre- i»u\itlonu Uniuvtu. 659 for any term in any other ot cxceedinji tiosever shall or shall draw [ischargc any , cut or wound aforesaid, to lo some other ntent to resist of any person, 1 thereof shall imprisoned at )r the term of seven years, or of confinement it act), § 30, if inflict upon any , or instruments, maliciously cut. r shall be guilty t)f shall be liable lol or prison for provincial peni- more than five for any felony indictment shall [und any person, is guilty of the indictment, hut jury may acfiuit |y of unlaicfulhj \ such defendant itting or >vound- upon its dam- h an intent to •with death. K uring, or disa- t is punishable e is committed inal intent, as ,nd without pre- meditation or design, it is punishable under the statute 18 v., c. 92, as a misdemeanor only. It is diflBcult to conceive any case of stabbing or cutting that would not in the eye of the law be deemed both unlawful and malicious ; and it is an offence so utterly abhorrent to all true British feeling and spirit that wo may well indulge the hope of its seldom occuring in this province. Explosive or Corrosive Matter. — By 4 & 5 V., c. 27, § 12, Tvhosocver shall unlawfully and maliciously send or deliver to, or cause to be taken or received by any person, any explosive substance, or any other dangerous or noxious thing, or shall cast or throw upon or otherwise apply to any person any cor- rosive fluid or other destructive matter, with intent, in any of the cases aforesaid, to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, and whereby, in any of the cases aforesaid, any person shall be burnt, n'aimcd, disfigured or disabled, or receive some other grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial peni- tentiary for the term of his natural life, or for any term not less than seven years, or in any other prison or place of con- finement for any term not exceeding two years. Miscarriage. — § 13. Whosoever, with intent to procure the miscarriage of a'ty woman, shall unlawfully administer to her, or cause to bo taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other meai s whatsoc "cr with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labor in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, or to be impiisoned in any other prison or place of confinement for any term not exceeding two years. Malicious Injury to Property. By the 4 & 5 V., c. 26, § 15, if any person shall unlaw- fully and maliciously break down or otherwise destroy the dam of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully or maliciously put any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish therein, or shall unlawfully and maliciously break -^ :.i 'f \ »; :■■ ;# A. 660 M^tOfumm. M^&r- fo'f IJ: !||f down or otherwise destroy the dam of any mill-pond, every such offender shall bo guilty of a misdemeanor, and Leino convicted thereof shall be punished accordingly. § 17. Unlawfully and maliciously setting fire to agricultu- ral produce, is made felony. — (See title " Arson.' ) § 18_ If any person shall unlawfully or maliciously cut or other- wise destroy any hop binds growing on poles in any planta- tion of hops, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years. By the 4 & 5 V., c. 2t), § 24, 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, for which no remedy or punishment is hereinbefore provided, every such person, being convicted thereof before a justice of the peace, shall forfeit and pay such sum of money as shall appear to such justice to be a reasonable compensation for the damage, injury or spoil so committed, not exceeding the sum of £5, which sum of money shall, in case of private property, be paid to the party aggrieved, except where such party shall have been examined in proof of the offence, and in such, and in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such man- ner as every penalty imposed by a justice of the peace under this act is hereinafter directed to be applied : provided always, that nothing herein contained shall extend to any case where the party trespassing acted under the fair and reasonable supposition that he had a right to do the act com- plained of. See also title "Explosive Substance'' and "Summary Conviction." MANDAMUS. A writ of mandamus is a command issuing in the king's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature, within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office or duty. This writ is principally used to enforce a civil or municipal right, but it issues also to the judges of any infe- rior court, commanding them to do justice according to the power of their ofiice, Avhenever the same is delayed. It is grounded on a suggestion (by the oath of the party injured) of his own right, and of the denial of justice in the court below ; whereupon, in order more fully to satisfy the court MMttamuu* 661 1-pond, every )r, and beinc; r- e to agricultu- «ow.") § 18. cut or otliev- in any planta- lilty of felony, be imprisoned a. shall wilfully or spoil to or 2r, either of a or punishment being convicted 'orfeit ar\d pay justice to be a ijury or spoil so , which sum of be paid to tlie shall have been 3uch, and in the rein any public lied in such man- ihe peace under plied : provided extend to any cr the fair and do the act com- and ^' Suiiimartj ng in the king's directed to any idicature, within some particular ,0 their office or nforce a civil or Jges of any infe- I according to the is delayed. It is [he party injured) jtice in the court satisfy the court that there is a probable ground for such interposition, a rule ig made (except in some general cases, where the probable (rround is manifest) directing the party complained of to shew cause why a writ of mandamus 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 ansAver 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 insufficient reason, then there issues, in the second place, a peremptory mandamus, to do the thing absolutely, to which no other return will be admitted but a certain perfect obedi- ence and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obe- dience, he is punishable for his contempt by attar^hment j 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 tlic truth of the facts upon affidavit, but will for the pre- sent 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) £hall recover damages 0(iuivalent to the injury sustained, toffcther with a peremptory mandamus to the defendant to do^'his duty. — 3 Bl. 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 pi*actice. — It. v. Wiltshirey \QEast. 404. Where a person had been convicted before justices of the peace and fined, and on an appeal to the quarter sessions the justices there admitted more evidence than had been heard on the conviction, and the accused party was acquitted ; but, on receiving the opinion of the attorney-general that the ad- ditional tvidence should not have been admitted, the justices in session confirmed the conviction, and ordered it to he recorded, but took no notice of the acquittal : *.he court made absolute a rule for a mandamus commanding them to enter the acquittal. — Itej: v. Justices of Batkurst, D. 3Iich, W. IV., Cameron's I), p. 49. A mandamus never issues except to admit or restore some person to an ascertained right. — Barnhart v. Justices II. D. Easter! W. IV., lb. Upon a mandamus nisi to justices in session, they should return the recorded proceedings had before them, and not 71 i0M\ mm' 562 iHlainttfartttreirfii. .' • 1' 1 1-,-t, V-"JKlSK]pAi' ■■■' ^^M: Si' 4 1-:; V\ collateral matters not embraced in the entries of the court —lb. p. 71. MANSLAUGHTER Is at common law, felony ; and is defined to be such kill- ing of a man as happens on a sudden quarrel, or in the com- mission of an unlawful act, without any deliberate intention of doing any mischief at all. — 1 Ilaiv., 76. By the 4 & 5 V., c. 27, § 7, evcr^ person convicted of man- slaughter shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for life, or for any term not less than seven years, or bo im- prisoned in any other prison or place of confinement for any term not exceeding two years, or to pay such fine as the court shall award. See also ante title ^^ ITomicide," p. 393. Form of Indictment for ^lanslaughter. — 18 T"., c. 02. County of ") The jurors for our lady tlie Cluccn, upon tlieir to wit. ) oath present that A. H., on the clay of in the year of our Lord one thousand eight hundred and at in the county of did feloniously kill and slay one C. D. Note. — The indictment must be on parchment.— Sco 16 V., c. 92, J 5, MANUFACTURES. By the 4 & 5 V., c. 26, § 4, if any person shall unlawfullv and maliciously cut, break or destroy, or damage with intent to destroy, or to render useless, any goods or articles of silk, woollen, linen or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or any frame-work, knitted piece, stocking, lioso or lace, being in the loom or frame, or on any machine or engine, or on the racks or tenters, or in any stage, process or progress of manufacture, or shall unlawfully or maliciouslj cut, break or destroy, or render useless, any Avarp or shute of silk, woollen, linen or cotton, or of any one or more of those materials mixed with each other, or mixed •with any other material, or any loom, frame, machine, engine, rack, tackle or implement, whether fixed or moveable, prepared for or employed in carding, spinning, throwing, weaving, fulling, shearing, or otherwise manufacturing or preparing any such goods or articles, or shall by force enter into any house, shop, building or place, with intent to commit any of the offences aforefaid ; every such offender shall be guilty cf felony, and being convicted thereof, shall of the court. ) be such kill- or in the com- ',ratc intention ivictecl of man- the court, to be )cnitcntiiivy for rears, or be im- nemcnt for any lUch fine as the ono , ovo, 18 F., c. 92. Aiccn, upon tlioit >n tbo day of ght huiulrod and ily kill and slay 16 v., c. 02,? 5. shall unla\vfully Image with intent Ids or articles of or more of tliose (1 with any other iStocking, liosc or any machine or Iny stage, process illy or maliciously |s, any warp or of any one or other, or mixed frame, machine, ixed or moveable, [inning, throwing, manufacturing or |all by force enter with intent to iry such offender ited thereof, shall S^avviuatn. 563 be liable, at the discretion of the court, to be imprisoned, at hard labour, in the provincial penitentiary, for any term not jggg tiian seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding jffo years. MARRIAGES. *By 33 G. III., c. 5, certain marriages previously con- tracted, are declared to be valid, and provision is made for preserving the testimony of such marriages within three years from the date of this act. § 3. And until there shall be five ministers or persons of tho church of England, doing duty in their parishes or places of residence in any one district, parties desirous of intermarrying, and neither living within eighteen miles of any parson or minister (a), 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, tho following notice, (fee one shilling) : — Whereas A. 13. of , and C. D. of , are desirous of intermarrying with each oilier; and there being no parson or minister of the church of England living within eighteen miles of them, or cither of them, all persons wlio know any just impediment why they should not be joined in matrimony, arc to give notice thereof to E. F. Esquire, of , one of her Majesty's justices of the peace for the district. » And if no valid objection shall have been made for three intervening Suns, or of dismissal from service, and to pay such costs as shall be awarded, and shall be awarded, and shall if necessary issue process for carrying such judgment into effect. § 10. Interpretation clause : the word "party" to include any person or persons, body or bodies politic or corporate ; and all wonls importing the singular number or masculine gender, shall include several II:'-; U !i m ii' i' %■! K'.ll ii^AT .m sw:>i s 'r't ^ I r ,uffi' l^k - ■! '-ill I ■■•tli'4' ' '<■ '-■ '''1 liilii^liii 572 jnflUfar. persons, matters or things of the same kind, as well as oni' person, &c., and females as well as males. By 18 v., c. 136, the above act 10 & 11 V., c. 23, h extended to journeymen or skilled labourers in any trade calling, craft or employment and to their masters. § 2. And shall apply to engagements entered into for the performance of any service or work, and to the parties thereto, whether the same may have actually been entered upon or not. MECHANICS' INSTITUTE. By 14 & 15 v., c. 86, § 1, any number of persons not less than ten having subscribed, or holding not less than .£25 in money or money's worth, may make and sign a declaration in duplicate of their intention to establish a library association or mechanics' institute, ft 2. And on complying with the formalities required, shall be u body corporate and politic, and hold real estate for the use of such corporation not exceeding the yearly value of £10). § 3. Affairs of the corporation to be managed by the directors or trustees to be appointed, as in the act directed. § 4. A president, librarian, and other officers to be appointed at their annual meeting. § 5. Trustees to remain in office until suc- cessors appointed. § 6. Corporation authf "iscd to make by- laws imposing fines not exceeding one pou" J on any member contravening the same. § 7. Such corporation may, if provided in the declaration, be at the same time a mechanics' institute and library association. § 8. Shares may be made transferable in certain cases. § 0. Dissolution of such cor- poration provided for. By 19 v., c. 51, any such corporation situate in anv village or town having 3000 inhabitants or more, may hold real estate, not exceeding in annual value, iI500 ; and in any town or city not exceeding that number, may hold real estate not exceeding in annual value £250. MILITIA. By 18 v., c. 77, § 1, all former acts arc repealed. § ± The Governor-General or public administi utm^ s'^.M, by vir- tue of his office, be coramander-in-chiei* «' . >r jyrovincial militia. '^ 3. The militia to be divided ;;,<.. ivo chisse?. sedentary and active. Sedentary Militia, §4. Shall consist of all the male inhabitants of the pro- vince of the age of 18 or upwards and under 60, not exempt- ed or disqualified by law. § 5. The sedentary militia to be 18 well as one mmtiu. 57*^ o divided into two classes, service men and reserve men. The service men to be 18 years of age and under 40, and the reserve men 40 years and upwards, but under 60 years of a(re. § 6' I'^ *''"® ^f peace, no actual service or drill shall be required of the sedentary militia, but they shall be care- fully enrolled from time to time. The service men, not exempt from muster, shall assemble annually for muster at such place and hour as the commandint; officer of each bat- talion shall direct. The muster day in Upper Canada being the Queen's birth-day, or if that day shall fall on a Sunday, then the day after. § 7. The following persons only be- tween 18 and 60, shall be exempt from enrolment and from actual service : The judges of the superior courts of law or equity — the judee of the court of vice-admiralty — the judges of the county courts — the clorgy and ministers of all denominations —the professors in any college or university, and all teach- ers in religious orders — the warden, keepers and guards of the provincial penitentiary. And the following, though enrolled, shall be exempt from attending muster and from actual service at any time, except in case of war, invasion or insurrection : — the reserve men — the members of the Executive and Lcfislative Councils — the members of the Legislative As- sembly — the officers of the vsaid councils and assembly respectively — the attorneys and solicitors general — the pro- mcial and assistant secretaries — all civil officers who shall have been appointed to any civil office in this province under the great seal — all persons lawfully authorised to practise phvsic or surgery — all advocates, barristers, solicitors and attorneys — notaries in Lower Canada — half-pay and retired officers of her Majesty's army or navy — postmasters and mail carriers — sea-faring men actually employed in their calling — masters of public and common schools actually engaged in teaching — ftsrrymen — one miller for each run of stones in every grist-mill — keepers of public toll-gates — lock masters and labourers employed in attending to locks and bridges on public canals — the engine-drivers, conductors and switchmen connected with the several railways actually in use— members of fire companies .and of hook and ladder companies — gaolers — constables and officers of courts of jus- tice, not being such solely by virtue of their being non-com- missioned officers of militia — students attending seminaries, colleges, schools and academies, who have been attending such at least six months previous to the time of claiming exemption — all persons disabled by bodily infirmities — Qua- •hm f.m W i\] mM t'lr^l i- > h •t ' I i.i ' ■■ ■ v Mf i'i'^'^-^^r ■. I m- .^ 674 iWfutfa* 4 kers, Mcnonists and Tunkers, ami other religious (lenoniini. tions who, from the doctrines of their religion, shall be avoM to bearing arms, and shall refuse. Claim of exemption v.) be filed, with affidavit sworn before a magistrate, at least one month before hand, with the commanding officer of the com- pany. § 8. Service men to lie divided into two classes, viz., fir«' class and second class service men. The first class to con- sist of unmarried men and widowers without children : un-j the second class of married men and widowers with childroi. § 9. In case of war, invasion or insurrection, those taken for actual service shall be, 1st, volunteers from the service men ; 2nd, then the first class service men ; 3rd, and tiien the second class. § 10. The commander-in-chief authorisel to divide the province into eighteen military districts, nine in Upper Canada and nine in Lower Canada. § 11. Alsn to divide such military districts into regimental (livislons and battalion divisions, by names or numbers. § 12. All the battalions in any regimental division to form the rcci- ment thereof. § 13. A colonel to be appointed to oac!i military district, and a lieutenant-colonel to each battalion. and such number of majors and staff officers as may L, deemed necessary. § 14. Company divisions to be formeil of not less than 50, nor more than 75. § 15. Existin' militia divisions to continue till altered. § 10. Each com- pany to have a captain, lieutenant, ensign, three serjeams and three corporals. § 17. Enrolment in each company division to be made by the captain with the assistance of the officers and non-commissioned officers, by actual enquiry ai each house in the division. § 18. Militia men not so en- rolled, bound to give in their names, &c., to the conimaudini: officer of the company within twenty days. § 19. A certi fied copy of the roll to be transmitted within twenty (lav< after the annual muster day, to the commanding oUicer w the battalion, and by him, within forty days, to the assistant adjutant general of the district, and transmitted to heal quarters. § 20. Company rolls to be corrected from time to time, and assessors and others bound to furnish int"ormati"!i required, and militia man bound to notify his commanJin;; officer of any change of residcucc. Active or Volunteer Militia Companies. § 21. IIow to be formed : not to exceed in the whole lii troops of cavalry, seven field batteries of artillery, ^w foot companies of artillery, and fifty companies of riflemen: total not to exceed 5,000 officers and men. § 22. Volunteer \ mmtu. iisses, viz., fir«'. rst class to con- ; cliiUlren : ati'l 3 witlx cluldroii. on, those taken From the servici' ; Srd, and then chief authorise! ry districts, nine An,. § 11. AU^i mental divisions bcrs. § 12. All form the rop- )pointed to oaeli each battalion, ficers as may \)r ions to he formeil § 15. Existin;; § IG. Each com- , three Serjeant!! n each company assistance of tlic actual entiuiry at la men not so en- the commaudinj: , § 19. A certi- hin twenty day> mantling ollicer (ji s, to the assistant nsmitted to lieal jctetl from time to irnish information [y his commanding; iioop of cavalry, company of foot artillery, or riflemen, to consist of ft captain, lieutenant, cornet, second lieutenant or ensign, three .Serjeants, three corporals, a trumpeter or bu'dcr, and not exceeding 43 privates, except rifle compa- jjic^s which may number from 43 to 75. Each field battery 1,1' artillery to consist of a captain, two first lieutenants, a .econd lieutenant, a scrjeant-major, three Serjeants, three corporals, three bombadiers, a trumpeter, a farrier, 59 gun- ners and drivers, including wheelers, &c., 50 horses, exclusive of officers' horses, and four spare horses when in actual service. § 23. A volunteer marine company to be formed at King- ston Cobourg, Toronto, Hamilton, Port Stanley, Dunnvillc ,nd Oakville, each to consist of a captain, a lieutenant and ■)0 men : and a commodore appointed to command the whole. k 24. IIow to be armed and drilled. § 25. Volunteer com- panies of engineers, with officers, to be formed. § 20. All volunteer companies may be formed or disbanded by autho- rity of the commander-in-chief. § 27. Arms and accoutre- raents to be furnished to the volunteer companies at the ex- pense of the provinc ) ; security to be taken for their safe keeping, ^^f • § 28. To be repaired at the cost of the pro- vince. § -'*• lo be kept in armouries, or such other place ;is .shall be provided. '§> 30. Commissioned officers to furnish their own arms and accoutrements. § 31. Arms, accoutre- ments and horses to be exempt from seizure in execution. Horses not to be disposed of without leave. § 32. Volun- teer militia companies to be drilled at such time and place in each year as the commander-in-chief shall appoint : the volunteer field batteries to be drilled twenty days, ten of which shall be continuous, and the other volunteer corps once in each year during ten continuous days. § 33. Code of instructions for drill to be drawn up under the direction of the commander-in-chief. 84. The pay of the officers and men during drill to be as follows : Captains, per diem £.0 Second do., Cornets or Ensigns Non-commissioned Officers and Privates ;iad a further sum of 5s. per diem for each horse present and used for such drill. § 35. Volunteer companies may be called out for drill (without pay) according to the articles of engagement or regulation. § 30. Ammunition for practice ur drill to be provided. § 37. Serjeant-major of a volunteer field battery of artillery to be paid .£50 per annum : and rompctcnt persons appointed to drill the other volunteer 10 6 7 6 6 5 w Eii*<'i 3 H'p' '^ .r.'.ii ¥1 ■t v^^l I J: m ■M' ■ 576 mmti^* ij ■■/r il i - ' r (.' companies, at 7s. 6d. per diem "while so employed. § f,s Volunteer companies may be called out in aid of the civil power in case of riot or other emergency, and shall, when so employed, receive the above rate of pay from the municipa- lity, and 2s. Gd. per diem extra, with proper lodging. § 39 To be calle«l out upon requisition in writing by the mavor warden or other head of the municipality, or any ttoo maffisl trates, and to obey such instructions as shall be lawfully given by any magistrate in regard to the mode of quelling such riot : the officers and men so called out to be special constables pro. tern. § 40, Volunteer companies exempt 2)ro. tern, from serving as jurors or constables : and after seven years' service, exemption to be permanent. § 41. No non-commissioned officer or man of any volunteer company shall leave without giving one month's notice in writing to the commanding officer thereof: nor leave contrary to the engagement contained in any articles of engagement signed by him. § 42. Field officers to inspect volunteer conipanicj and report the state of the corps to the Governor. General Provisions. § 4". All commissions to be granted by the commander- in-chief, during pleasure. § 44. Non-commissioned officers to be appointed by the commander of the battalion except in volunteer companies, where ;hey shall be appointed by tJie captain. § 45. Officers of the militia to be British subjects by birth or naturalization, having taken the oath of aiici- ancc. § 4G. Existing commissions to continue until cancelled; and no person shall be bound to serve in a lower grade unless he has resigned his commission, or has been reduccil : and persons who have been non-commisioncd officers in his Majes- ty's army, not bound to serve in the militia in any lower grade. § 47. An adjutant-general of militia and two depu- ties, one for Upper and one for Lower Canada, to be ap- pointed ; their rank and p.ay to be, adjutant-general, ilToH per annum ; deputy adjutant-general, £500 per annum. § 48. An assistant adjutant-general, with rank of major, to be appointed for each military district. § 49. Ilis pay to be jG30 per annum. § 50. Assistant quarter master-general to be appointed for each military district and his duties. § 51, All contraventions of this act and of regulations or orders lawfully made or given under it, when the militia or that portion of it to which the oflfender belongs is not called out for actual service, shall be punishable by penalties to be imposed by one or more justices in a summary way, as herein- after provided, and court martials shall not be held. mmtia. 677 iloyed. § ?A lid of tlic civil shall, -when so tlio municipa- Ddging. § 89. by the mayor, iny ttvo magis- all be lawf\illy lode of quelling lUt to be special [ipanics exempt ,bles : and after icnt. § 41. No antecr company 'ice in writing to contrary to the Tagemcnt signed lintecr companies ernor. r the commander- missioned officers I battalion except appointed l)y tlic ic British subjects ,hc oath of uilegi- le until cancelled: oiccr (/rade unless ;en reduced: ami icers in his Majos- itia in any Wer tia and two depu- lanada, to k ap- ,nt-general, X'oti 500 per annum. rank of major, to 40. Ills pay to bo tnastcr-gencral to his duties. § 51. ^ulations or orders 'he militia or that , is not called out ly penalties to be ■ry way, as herein- ,t be held. CiilUng out the Militia. § 52. Authority for, vested in the commander-in-chief, Tlicncvcr ho shall think it advisable by reason of war, inva- sion, or insurrection, or imminent danger of it. § 53. The like power vested in colonels, licutonant-colonols of battal- ions, upon any sudden emergency of the same nature, until ilic pleasure of the commander-in-chief be known. § 54. Militia men bound to obey all such orders, and march to any place within or without the division, as ordered. § 55. Volunteer companies of local divisions to be included. § 56. ^Vhon the whole militia arc called oat, all the volunteer com- panies shall be included. § 57. Scdonuu-y militia men called i,Ui for actual service to attend with n i ms, accoutrements, ■mil provisions. § 58. "When the wl'.jle not required for actual service, a certain number may be directed by the couinKUiilcr-in-ehiof to be furnisht'd, over and above the volunteer companies, which shall always bo the first taken f,,r actual service. § 5!>. The number furnished to be Irafted. § 00. No militia man drafted for actual service to i)C exempt unless ho shall pa}- a penalty of J!10, or provide iiu approved substitute. § 01. No man drafted and unfit tVoui bodily infirmity shall be taken for service. § 02. If a "realer number required than the whole of the first class, the residue to be taken from the second class. § 63. The militia so drafted shall be embodied into companies and battal- ion?, and commanded by such ofticcrs as the commander-in- c'liet' shall think proper. § 64. A'^olunteer companies called out for service, may be embodied into battalions. § 65. The militia so drafted, shall serve for one f/car unless sooner ilJHliandod, and may then be replaced by other drafts, Jind sluill not be liable to servo again, until the others in the same elass have been taken. But the volunteer companies shall serve for the time engaged, not being less than fvc years, jiiljcct to be determined on such month's notice as aforesaid : provided that no volunteer shall leave such service, either with or without notice, at any time when the militia are called out, unless regularly discharged, or having served out the full time. § 00. The militia so called out may be marched to any part of the province, or any jtlacc witJiout, but continu- ous therewith, where the enemy may be, and from which an attack may be apprehended. ^ 07. The militia so called out to be subject to the articles of war, and to the act for punish- ing mutiny and desertion, except that no militia man shall lie subject to corporal punishment, other than death or I imprisonment for any contravention of such laws ; and except 73 if ^m iir HH ^V. 11! t :l '.: ' \ ^.. iS! >.' '1 miM .ii ii ■ 'i -■: 41'^ 578 iiifKtf^* also, that tlio commamlor-in-chicf may direct that any of it, provisions .shall not apply to the militia. § GH. The inilltja sn called out shall be commanded l)y the officer hij^hest in rank then present, or the senior of two or more of equal rank Officers of the rej^ulars to be reckoned senior to mijitiii officers, and colonels appointed by commission signed h\ tlie commander of her Majesty's regular forces in Canada/sliall command colonels of militia, whatever the date of tluir comuiissions. § 50. No militia officer or militiaman aliall iio sentenced to death by any court martial except for mutiny or desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post or guard, or traitor- ous correspondence with the enemy. And no sentence slmll be carried into effect until approved by the comniandcr-in- chief. § 70. No officer of the regulars shall sit on anv militia court martial. Arjnamcnt of Sahnfmy Militia. § 71. Arms, &o., to be kept in armouries at Quebec, Tliroi. Ill vers, lliviere-du-loup (below), Sorel, St. John's, Montioa!, the City of Ottawa, Prescott. Kingston, IVterborou;!:, Toronto, (Juelph, Hamilton, London, Chatham. § 72. Ar- mouries may be erected. §78. Commander in chief to a])- ])oint the persosi in charge at a rate not exceeding ^75 per annum. § 74. The arms to be delivered out as the comniaii- der-in-chief shall appoint. § 1^). In certain cases mayie kept by the militia men, on giving a receipt for their sail keeping and delivery to any officer authorised to denianl tliem. liiUcting and Cantoning Tnopa and Militia, J-c, xi'hn m actual service. § 70. IIouRoholders required to furnish house-rooin, fire, cooking utensils and candles, and in case of ^nergeiicy, tin officer in command may direct any officer or non-coniinii^sionpil officer, or other person, after having obtained a warrant fruai a justice, to Impress such horses, carriages, or oxen, as tne service may require, to be paid for at the usual rate. § "i, When the troops (regulars as well as nillltia) are on amartli, the officer in command shall re(juire a justice of the peace to I billet, who shall accordingly billet the same in such manner | as may be most commodious to the inhabitants. § 78. No offi- cer shall be obliged to pay for his lodging where billeted; but! householders shall be entitled to receive from government W. a day for each non-commissioned officer, drummer and private !!','!'J^ that any of It., Tho militia sn liifrhcst in rank of cfiual rank. nior to militia n signed by tlie 11 Canada, siiall ; date of tiiciv Atiaman aliall lie ccpt for mutiny ilciivcring up td aard, or traitor- no sentence slmll Q comniander-in- shall sit on anv \ at Q»icl)cc, Tliroc John's, Montreal )n, reterborou-li, vtham. § 1-- Ar- idcr in chief to a]!- exceedinf; JL i ;> pir )ut as the commun- tain cases may Ik ipt for their salt liorised to demuU'l ilitia, .j-c, H'hcn on Ih house-room, fno, ] of ^nergeiiey, the Ir non-commissioned lined a warrant from Lcs, or oxen, as tw Tc usual rate. § 1 ". ]tia) are on a marcK Lticc of the peace to Lne in such mamiet | lants. §T8. NooiE-! k where hillctcil; but from government Gd. I Irummer and private mmtiu. 579 of infantry ; and for each cavalry aoldier and horse Is .3d. per ,y^^,xn ; billets to bo paid and settled every four days. § 70. Ouartcring and billeting troops in cantonment. § 80. Oom- pbiints of persons aggrieved to bo decided by two or m'^"e justices. § 81. No justice of tho peace holding military oftice to billt't or (quarter troops. § 82. No billet to be given on any corvcnt or nunnery of any religious order of females. k 83. Any justice, when the troops arc in cantonment uiav, on requisition from tho officer in command, issue hiii varrant for furnishing carriages, horses, or oxen, or impros- jiiiic the same ; but not to proceed more than thirty miles in cases where they can bo replaced, and the same to be paid for at the usual rate of hire. § 84. Provision for the con- voviincc of troops iu cases of emergency by railway or by water. Pe7ialties. §85. Any officer of militia neglecting to transmit any roll or return required by this act, or wilfully making any false statement therein, to incur for each ijffcncc a penally of ^10 § 80. Any officer or non-commissioned officer roiusing or neglecting to assist his commanding offi- cer in making any such roll or return, or neglecting to assist in obtaining information, to incur for each offence a penalty of 5 U § 87. Any militia man, or other person refusing or neglecting to give any notice or information necessary for making or correcting the roll of any company registered l)y this act, at reasonable hours, to incur for each oflence a penalty of 2 10 § 88. Any militia officer or man (not exempt) nei'lecting to attend muster or obey any lawful order at or concerning muster, shall incur for each a penalty of not more than 15 § 8'A Any person who shall interrupt or hinder any militia at drill, or trespass on the bounds set out, sliallfor each offence incur a penalty of (and may be taken into custody and detained by any person by order of the commanding officer until such drill be over) 1 o § 80. Any officer, non-commissioned officer, or militia man disobeying any lawful order of his superior otlicer, or guilty of violent or disorderly behaviour towards such officer, then for each offence shall incur a penalty of 15 Iw i:i< ♦ M m M imiim 580 J^Uftfa. § 91. Any officer, non-commissioned officer or militia man neglecting to keep any arms or accoutre- ments entrusted to him in proper order, or who shall appear at drill, parade or on any other occasion Avith the same out of order, or unserviceable or deficient in any respect, shall for each ofTonce incur a penalty of § 02. Any officer, non-commissioned officer, or man of any volunteer company of cavalry or field artillery who shall witliout the consent of the com- manding oHicer of such company sell or dispose of any horse which shall have been drilled for the purposes of such company, or which he shall have undertaken to furnish, and have been approved of by such com- manding officer, shall for each offence incur a IJV'ildlLy l/i*«»«««««« •■• ••• ••• ••••••••• •••••• ••■ ••• •■•••••■••■• § 98. Any person who shall unlawfully di.sposG of or remove any arms, accoutrements or other articles beloniring t3 the crown, or refuse to deliver the same up when lawfully required, or shall have the same in possession, except for lawful cause, the proof of which shall be upon him, shall for each offence incur a penalty of, (besides being liable to indictment for any greater ofience, and any perj^on so ciinrged may be arrested by order of i\\o magistrate before whom complaint is made upon affidavit shewing that such person is about to leave the province, carrving any such arms, accoutrements or articles with him) § 94. Any officer or man of a volunteer militia company, when such company shall be lawfully called upon to aid the civil })ower, refusing or neglect- ing to go out with such company, or to obey any lawful order of his superior ofhcer, or of any magis- trate, shall for each offence incur a penalty of § 9'). Any inhabitant housoholdcr refusiiig to receive any trooper or militia billeted upon him to furnish them lodging and articles re(niirod by the act, shall for each offence incur a penalty of § 9tj. Any person hnvfully required, refusing to furnish any carriage, horse or ox for the conveyance of any trooper or militia, shall incur a penalty of... § 97. Any person lawfully rcfjuired, refusing to fur- nish any car or engine, boat or other craft, for the con- veyance of troops or militia, shall incur » penalty o!"... § !'8. Any person who shall wilfidly contravene any enactment of this act, when no other penalty is imposed, shall incur for each off'ence a penalty of... .£1 5 Oil On ,") I] II •2 0' .] II .". 1» i mmtia. 581 er or outrc- ) shall n "NvitU ificicnt laltyof n ccr, or )r field ic com- c of iiny impose of • articles tlic same ; same in proof of nco incur tment for rgcd may ore wliom that sucV rving any _ him) ■' or militia > lawfully tr ne^k'ct- ohey any ,ny magis- y of fusing to on him to |rovl by the of (.'fusing to ■onveyance nalt) of..', sing to fuv- Ifor the con- nalty ')!... Icontravenc penalty is nalty of... § 99. All penalties under this act or under any regulations, orders or articles of agreement, lawfully made or entered into, under it, shall bo recoverable Avith costs on the evidence of one credible witness on complaint or information' before (ijic justice of the peace if the amount do not exceed £i>, and [icforc two justices, if the amount exceeds that sum : and to the recovery of such penalties all the provisions of any act or acts then in force, relative to the performance of the duties 0, justices of the peace out of sessions with respect to sum- mary conviction and orders shall ap[)ly in so far as it may not 1)0 inconsistent with this act : and any officer, non-commis- sioned officer or private of any volunteer miUtia company sluiU be a competent witness in sucli case. § too. No prosecution against an officer of militia for any mialty imder this act shall be brought except on the complaint of the adjutant-general, and no ])rosecution against any non- commissioned officer or private of the sedentary militia sliall lie brought except on the complaint of the commanding ofticer or adjutant of the battalion, or captain of the company : and no prosecution against any private or non-commissioned officer of volunteer company shall be brought except on tom- pliiint of the oaptain or commanding oflicer thereof. But the adjutant general may .lulhorise any officer of militia to uiakc such complaint in his name. § 101. Prosecutions not to be commenced after six month?, unless for unlawfully buying, selling, or having in possc:-sion arms or accoutrements delivered to the militia. ^ 102. Penalties, when recovered, if the offender belong to the active or V(duntecr militia, shall be paid over .to the officer commanding the company, for the purposes thereof, anil accounted for by him to the adjutant-general ; a:id if lioloniniig to the sedentary militia, the same shall be [laid over to tlic assistant adj"' mt-general, who shall account for ^uul pay it over to the receiver-general for the use of the province. JlisecUaneous provisions. li) 103. Orders and notices under this act need not be in writing, uuk'ra herein provided for, and parties bound to obey. 101. All general orders of militia, or other militia orders i^^sucd through or by the adjutant-genc^ral, shall be held suffi- ciently notified by their insertion in tlie Canada Oazettc. lOo. Orders made by the commanding officer of a militia, rojrimcntal, or battalion division, shall be held sufficiently notified by their insertion in some newspaper published in the I Mill lilii •;: ,: '^•■:i MiiliwM a*i:.tl-f ij.. i:^;-•'P:■/^•^;: l-.ii^h'''lW'i :mm^' 1 ;f! : ;,; 582 J»CUtfa« division, or if none, then jQ some neighbouring division, anl by posting a copy on the door of the church, or of soniu court-house, mill, or other public place, in each compun\'\j division. § 6. The production of a eoinraission or appointment war- rant, Oi order in writing, made according to this act shall bo pr had facie evidence thereof. § 107. Every bond to the crown, entered into under tlio authority of this act, or according to any general order or regulations made under it, for the purpose of securing the pav- mcnt of any money, or the performance of any duty rcquiroil by this act, entered into before any judge or justice of tlie peace or officer herein authorised to take the same, shall b" authorised to take the some, shall be valid, and may be vo- restricted or enforced accordingly. § 108. Moneys ^vhich any person or corporation shall be liable under this act t j to pay or repay to the crown, or which shall be equivalent tj the damages done to any arms or other property of the cro\v;i used for militia purposes, shall be a debt due to the cro^vi; and recoverable accordingly. § lOU. Actions against persons for any thing done in pur- guance of this act not to be commenced after the end of si,,- months, nor until one calendar month's notice in writin" cf the action and cause thereof shall have been given to tt:c defendant. The defendant may plead the general issue, ai. \ give this act and special matter in evidence : amends may bv tendered or paid into court. § 110. If verdict pass for the defendant or the plaintif;' become nonsuited, «S:c., the defondant siiall recover full cos;< as between attoriiey and client ; and if verdict is given iy^ the plaiiitltf he shall not have costs unless the judge ceitilV his approbation. § 111. All moneys required to defray expenses autlioi>, i by this act, to be paid out of the consolidated revenue ; b;;. not until iirst approved of by resolution of the legislaiivi assembly in the annual estimates. § 1 1'J. Detailed accounts to be laid before parlianien;, § llfl. Accounting clause with the Lords of the Treasiirv. §114. Interpretation clause. S H''' Act to come into open- tion on the 1st of July, IS,'),'), and to be in force three yeais and until the end of the session. JJy ll>iS::iO v., 44, § 1, provision made for increasing tie number of military districts. § 2. For the formation of corps of unpaid volunteers. § 8. For dispensing with the aiuiuai general muster by the commander-in-chief, if he shall scefi;, § 4. For the appointment of militia surgeons. § 5. In case division, anl or of sonic jh company's ointment vfur- is act slniU Ic nto under tlic icral order, or 3uring the pay- ^ duty required justice of tV.c same, shall Lo ,nd may be vi- Moneys vliicli ider this act t j be equivalent t j ;rty of the cvowii 10 to the cvo^vu, .ing done in puv- L'v the end of si/ ice in writing of ten given to tlio rcnorul issue, ail! : amends may Yk or the plaintiff Irecovcr full cost'! ■diet is given f.-v |the judge certify nenses authovi-, 1 led revenue ; l'- [of the legislati\'j }forc parliamcii". of the Treasury. Ilo come into opuva- force thm' years for incrensinj: tl formation of corps Ir with the anuu.il if he shall see t. )n8. § 5. Ii^ C"^^' S^iiumnmn. 583 the muster day shall fall on a Sunday, the next day substi- tuted. § 6. Oath of allegiance not required to be taken by ofliccrs unless aliens by birth. § 7. Explaining sec. 46 of the 18 v., c, 77, as to battalions found embodied. MILL-DAMS. *By 9 G. IV., c. 4, every owner or occupier of any mill- dam legally erected, or where lumber is usually brought down jlie stream on which such mill-dam is erected, or where salmon or pickerel abound therein, in this province, who shall neglect to construct and erect a good and sufficient apron to his or their dam, as hereinbefore set forth, shall, for such offence, vearly, and every year, forfeit and pay X25 ; one moiety of Vhich shall go to the Queen, for the use of the province, and the other to the ])arty who shall sue in any court of record. ^ 2. Every such apron shall be erected and constructed in the following manner, viz., such apron shall not be less than li.thtecn feet wide, by an inclined plane of twenty-four feet oii^ht inches, to a perpendicular of six feet, and so, in pro- Tii^rtion to the height, whore the width of the stream will Julmit: and Avhero tlio stream or dam is loss than fifieon feet MJdc, the whole dam shall be aproned in like nmnncr, and ^vith the same inclined plane. Bv the 4 & T) V., c. 20, §15, if any person shall unlawfully „]iJ nijiliciously break down or otherwise destroy the dam of ;\'iv mill-pond, every such oiTender shall be guilty of a misde- meanor, and being convicted thereof shall be punished accord- iiidy- BV 12 v., c. 87, §1, aprons or slides to mill-dams shall be altered or constructed so as to afford depth of water sufficient t) admit of the passage of tiaw logs, lumber and timber, such as are usually iloated down such streams or rivers whereon luill-danis are erected : but proprietors may construct a waste- :ate, or put up brackets and slash-boards across any =iuch iiiirnn to prevent unnecessary waste of water, where not re- 1 to pass or iloat any craft, lumber or saw logs over such [lur iDvou; iipr ;:un but not until such craft, kc, shall have gained the channel of the stream : provided also that no person >hall be required to build such aprons or slides on small streams, unless required for rafting or lloating down lumber and saw logs. § 2. No apron to any mill-dam on the river Otunahec to be less than thirty-two feet wide by an inclined plane of five feet to a ])erpendicular of one foot, and side pieces of at least one foot in height shall be fixed on the out- .41es of every such apron. § o. Any owner or occupier of any dam neglecting to comply with this act, shall pay a m^n m » i ' 1 i; f^ ;' ■1-'f^' ■■) Vi,; V;; !i|.faf'' M 11 pr!,i':'"'HHf. V 684 j^uuvfii.—ii^fns. penalty of lOs. a day, to bo recovered before any two justices of the district, on the oath of two or more witnesses, and levied by distress and sale of the olfendcr's goods. § 4_ Damages to any apron to be repaired as soon as the state of the stream will permit; and on failure, the owner or occupier shall be liable to the penalty aforesaid, i^ •'). It Hhall be lawful for all persons to float saw logs !ii„| other timber, rafts and craft, down all streams in Uiijier (Janada during the spring, summer and autumn freshets. Persons so using such stream are not to alter, injure or de- stroy any dam or other useful erection across an}"- such stream: provided there shall be a convenient apron, slides, gate, lock or opening in any such dam, or other structure made fur the passage of saw logs and other timber, rafts and crafts, floated down as aforesaid. MILLERS. *I)y 32 G. IIL, c. 7, no miller shall demand, take or it- ccive more than a twelfth share or part for grindincr m,,] bolting of grain, under a penalty of jClO Quebec eurroncy: one moiety to tlie King and the other to the person that shall sue for tlie same in any court of record. § 8. No mji. ler sliall 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 distinction pre- viously known to the said owner or occupier, or his servant attending the milk See also, title ^^ Flour and J/fa?." MILLS. r>y 8 v., c. 47, § 4, fishing in any river or creek ly torch- light within one hundred yards (ff any mill is ])ruliihit((l, ijtj. I'nder a penalty not exceeding XH), and for everv i>;iili- sei[ueut oflence £•'>, with costs, to bo levied by distress an.! sale, and in default of payment, commitment to the coniiiKin gaol, not exceeding thirty days, nidess sooner jtaid, ami re- coverable before any one or more justices. ]jy 1;> v., c. "to, in any action to be brought against tlio projirietor or occupier of aTiy mill, for the overllowiug or in- jury to any land caused by the erection or continuation of any dam for the purposes of such mill, built before the pnr- chase by, and grant of such huid to the grantee of the crown, if it shall ajjpear that such purchaser obtained the land at a reduced price, or was otherwise indemnified in consequence thereof, then the jury may take the same into consideration, i^ffiiDreincanoir. 585 y two justices Witnesses, and goods. § 4. n iv3 tlic stuU' tlic owner or ?aul. § •')• It saw louV ,1 by distress aibl [nt to tlie conuanii j,uer paid, and re- Km gilt against tW 1 overllowing or in- L- continuatinu of lilt before the p'-r- lutcc of the crown, Ined the land at ;i I'd in conse(HU'Uce into consideration, jind if thoy think it just and equitable, may find a verdict for ii>o defendant. Sec also title " Machinery. , MISDEMEANOR. ' The word misdemeanor, in its usual acceptation, is applied JO all those crimes and offences for which the law has not pro- vided a particular name ; and they may be punished accord- ij,(T to the degree of offence, by fine or imprisonment, or both. _^ Burns Just. tit. Misdemeanor ; Mussel on Cr. and Misd. 43. A misdemeanor is, in truth, any crime less than a felony ; and the word is generally used in contradistinction to felony ; iiiisdcmcanors comprehend all indictable ofiences which do not amount to felony. — 4 Bl. Com. 5, 7iote 2. All distur- bances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever, of a public evil example, against the common law, may be indicted. — 2 llaw. P- ^' -^> § ■*• -^^^^ whatever openly outrages decency, ami is injurious to public morals, is a misdemeanor at common [fi^y, — 4 BL Com. (55, (n) Ed. And wherever a statute /o/-iit?« the doing of a thing, the do'vg of it wilfully, although without any corrupt motive, is indictable as a misdemeanor. — It. v. SiiinsOuri/, 4 7\ R. 457. So, if a statute enjoin an act to be done, without pointing out any mode of punishment, an in- tlictnient will lie for disobeying the injunction of the legis- lature. — Tl. V. Davis, Say., 13^3. Where a statute making a new offence only inflicts a forfeiture, and specifics the remedy, ;m indictment will not lie. — R. v. Wriglit 1 Burr. 543. The true rule is stated to be this : whore the offence was punish- ;iUo l)y a common law proceeding before the passing of a statute which prescribes a particular remedy, by a summary ],roceeding, then either method may be pursued, as the par- ticular remedy is cumulative, and does not exclude the common hiw puuishnieut ; but where ihe statute creates a new oflence, |iy prohibiting and making unlawful any thing, which was lawful before, and appoints a particular remedy against such new offence by a particulai ncthod of proceeding, such must be pursued, and no other. — liuss. Cr. Misd. 40. Every attempt to commit a felony is at common law a misdemeanor ; (a) and, in general, an attempt to commit a inisdemeanor is an offence of the same nature. — R. v. Scojieldj ('ithL ol)7. So also, an incitement or solicitation to commit a crime, is a misdemeanor ; as in the case of one lliggins, (d) lUit by several recent statutoa the attempt to commit ccrtaiu felonies, ' declared to be in itself a felony. 74 m h\ m Wi I IM WM^ im '■■t ■f.i § .51 alii' f) Ilk' 686 jnffiiDffmranotr* who was indicted for having incited and solicited a servant to steal his master's property. The servant was honest, and informed his master, and no theft was committed : Ilicwins was found guilty, and sentenced by the court to two years imprisonment, and to stand once in the pillory : Lord KonyoD observing, that the bare solicitation to commit a crime was a misdemeanor, though the crhno was not committed. — H, ,, Higgina, 2 East. 5. By 12 v., c. 10, § 5, any wilful contravention of an act of parliament is declared to be a misdemeanor, unless made some other offence — art, 15. *By 6 W. IV., c. 44, persons indicted for misdemeanor arc entitled to a copy of the indictment on payment of damages By 4 & 5 v., c. 24, § 3, the duties of justices of the pcact' on charges of misdemeanor are prescribed, (but arc further defined by the late statute IG V., c. 170, the particulars of which will be found under the head of '■'"Indictable Offences"] No traverse shall be allowed upon trial except on special cause shewn. § 22. And no misdemeanor (except perjury) shall render a party incompetent as a witness after punish- ment endured. Misdemeanor is a bailable offence, and by IG V., c. ITli, one justice of the peace may take bail in such cases. By 18 v., c. 92, § 13, persons indicted for felony or mis- demeanor, may be found guilty of the attempt only, anij punished accordingly. § 15. And if upon the trial for mis- demeanor the facts proved amount to a felony, the party shall not by reason thereof be entitled to an acquittal, nor after- wards indicted for the felony, unless the court shall order the jury to be discharged, and direct an indictment for tk' felony. By 20 v., c. 62, § 1, defendants, upon any indictment found or removed into the Queen's Bench or Common Pleas. shall not be permitted to imparle to a following term, but shall plead or demur thereto in four days after appearance, other- wise judgment. But the court, on cause shewn, may grant further time. § 2. No person prosecuted shall be entitled to traverse or postpone the trial of any indictment found ai^ainst him at any session of the peace, session of oyer and terminer, or gaol delivery, except the court shall be of opinion that the defendant ought to be allowed a further time for defence, and then the court may adjourn such trial to the next sub- sequent session, upon such terms as to bail, or otherwise, as to the court shall seem meet, and may respite the reco"- nizances of the prosecutor and witnesses accordingly. § \ In crown prosecutions for misdemeanor, if not brought to jl^ttttiet* 587 ttisdcincanor are ent of damages, iccs of tlie peacf (but are furtlier [\c particulars of •table Offences"] xccpt on special (except perjury) CSS after punisli- )n % any indictment or Common Pleas. ing term, but sliall ippcarance, other- shewn, may gram shall be entitled to nent found agaiiisi oyer and tcnninev, c of opinion that ;r time for defence, ,1 to the next sub- ,il, or otherwise, as respite the rcco^- accordingly. § I if not brought to trial within twelve months after pica of "not guilty," the court may order the trial unless a nolle prosequi be entered. Sec also ^^ Indictment"— '' Trial" MISPRISION OF FELONY. Misprision of felony is the concealing of a felony which a man knows, but never consented to ; for if he consented, he is cither a principal or accessory in the felony, and conse- (Uicntly guilty of misprision of felony, and more. — 1 H. H. 374. The punishment for misprision of felony in a common person, is fine and imprisonment ; 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. I., c. 0. If any person will save himself from the crime of misprision of felony, he must discover the offence to a magistrate, with all the >necd he can. — 3 Inst. 140. MONEY. See title " Coin." MURDER. What constitutes the crime of murder will be found under the head of " Homicide" ante page 393. By 4 & 5 v., c. 27, § 3, every person convicted of murder, or of being accessory before the fact to murder, shall suffer death as a felon : and every accessory after the fact to murder, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. § 4. Sentence of death may be pro- nounced after conviction for murder in the same manner, and the court before which the conviction may be had shall have the same power in all respects as after conviction for other capital offences, (a) § 5. Every person convicted of murder shall, after judgment, be confined in some safe place within the prison, apart from all other prisoners, and shall be fed with bread and Avater only and with no other food or liquor, except in case of receiving the sacrament, or in case of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered ; and no p^r- sua but the gaoler and his servants, and the chaplain and (o) But by the lato 8tatuto lIO V., c. «»1, giving appeal ia criminal cases, no senteuce of death in any capital felony bIuiU be passed to take effect until the expiration of tbe term next succeeding the sitting of the court nt. which such sentence shall bo passed. — See also title '^Appeal" \1-K ■J ■yP^ I 1.H '§,1'^^ m 'V^m' ■mm -mm mm:i mHW ^cM 'ry ni4t such vessel shall be navigating the said lakes, rivers am! channel. § 2. The night to extend from one liour after sunset to one hour before sunrise. § -5. Every steamboat or vessel carrying passengers shall bo provided with a good and sufficient fjang board or gang boards, witii substantial hand rails ; and the master thereof shall, on stopping at any wharf or laiuling place, cause the same to be firmly secured to tlic vessel, wharf, or landing place, for the safe and convenient transit of passengers ; and shall cause good and sufficient lights to be affixed to such gangways (in the night time) ; and tlic owners and occupiers of every such wharf or landing place shall also (in the night time) cause to be shewn conspicuously on :^. All steamboats, schooners, vessels, or rafts, Avhich sliuU bi; at aiK'lior in the night time, the master or person in chargo iiliall cause a good and sufficient light to be shewn in some part of her rigging, or in some otlier conspicuous place of the ?aid boat, &c., lying at anchor as aforesaid. § 7. Any person commanding or having tlie chargo of any steamboat, schooner, or other vessel navigating the said lakes, river or channel, or any or cither of tln-m, offending against tlio provisions of this act shall be liable to a penalty of .£5, to be recovered on conviction of such offence upon the oath of one credible witness before any two justices of the peace ; and in default of payment of such penalty, together Avith the costs and charges of, and incident to the conviction, it shiillhe lawful for such justices to commit the offender to the caol of the county or district Avherein such conviction shall be made for any period not exceeding thirtif days, in the discretion of such justices. § v,.,j lights. § 2. Every such steamboat, schooner or vessel to be provided with a fog-horn, or a Loll of |a weight not Jej^s than twenty pounds, under the penalty in the 7th section oi said recited act, (viz., j£5), to be sounded or rung at rcfular intervals of not less than Jive minutes, with an intcrniission of two minutes during the time that any such steamljoat schooner, or vessel shall be in a fo(j. § 4. Inspectorv- to be appointed by the Governor to inspect steamboats and machinery, &c. § 5. The in.>-nector of the hull to give a certificate of inspection, fee for £2 lOs. § 6. And the in- spector of the machinery also to give certificate, foe for £2 10s. § 7. The hull to be inspected once in twelve months, and the boilers and machinery once every six month? under the penalty of £100 on the master or owner. § S. Steam vessels to have a steam-guage open to the view of all passengers, and others on board, and on the vessel stopping for any purpose, the safety valve to be opened, under tlio penalty of iioO, and if the master shall allow the pressure of steam to exceed that limited by the certificate ; or shall alter or conceal such steam-guage so as to prevent the real pres- sure of steam from being seen and ascertained hy'anv passenger, he shall incur a penalty of £50. § 0. Stoamboa,; exceeding 200 tons, to be provided with two long boats or yawls, to carry at least twenty persons each. If oxcecijin.' 200 tons not less than three long boats or yawls, of the same dimensions, under the penalty of £50. § 10. Steamboats also to carry fire engines with proper hose, under the like penalty of £50. § 11, If any damage shall bo sustaincij by any person or property, in consequence of the non-obser- vance of any of the provisions of this act, in the absence of proof to the contrary, it shall be deemed to have been caused by the wilful default of the master or person in charge. § 12. All penalties imposed by this act may be sued for in the name of her Majesty in any court of compe- tent jurisdiction, and one half of the penalty shall be paid to the informer. By lU v., c. 167 (amending 14 & 15 V., c. 120), § 1, XttCfiiancr* 591 ono-anotlicr on ;ack shall keep ;k, keep away, 10 light. red and (frcm )V or vessel, to weight not Icjs le 7 th section ot rung at vogiilav an intermission such steamboat, § 4. Inspoctov-: t steamboats and e hull to f^ive a § 6. And the in- (jrtificate, fee for once in twelve every six montlis, or owner. § S. to the view of all .0 vessel stopping •pened, under the w the pressure oi ^te ; or shall alter ent the real prcs- ,ccrtained by any §; 0. Stoumboao |wo long boats or ch. If oxcccilii!.; awls, of the same § 10. Steamboats ^c, under the like Ishall bo sustained of the non-obscr- A, in the absence Imcd to have been ator or person in this act may be ,y court of compc- ^Ity shall be paid to v., c. 120), § I one of the boats provided for by the 0th section of said act to bo a Ufc hoat capable of sustaining insido and outside fifty persons. § 2. Steamers also to carry life preservers, fire-buckets, and axes. § 3. To provide for means of escape the upper deck in case of fire or other accident. to §5. 'Xlic Governor in council may limit the number of passengers to be carried. § 6. Penalty of <£50 to be incurred for con- travening any of the provisions of this act. By 20 v., c. 34, further provision is made for the security of the lives of passengers on board of steam vessels. See title " Steam Vcsscb," NUISANCE. Nuisances arc of two kinds — public and ^)nVa^. A public, or common nuisance, is an offence against the public, either Ijv doing a thing which leads to the annoyance of all the Queen's subjects, or by neglecting to do a thing which the coniraon good requires — 1 Haw. c. 75, § 1 ; and is an indict- able offence. A private nuisance, is any thing done to the hurt or annoy- ance of the lands, tenements or hereditaments of another, as bv building a house so near to a neighbour's as to stop his lights, or shoot the rain-water upon his house. — 3 Jil. Com. 210. This is not an indictable offence, but only the subject of a civil action, in which the party may recover damages for the injury. At the same time, if a private individual sustain a special (rncvancc, arising out of the common injury, he has a right of action for the particular damage occasioned to him, not- withstanding the nuisance may affect all the Queen's subjects. :J Bl Com. 219. What is a Public Nmsancc. The offending qualities of a nuisance are, in general, smell, noise, danger or obstruction ; and the existence of it as a public nuisance, depends on the number of persons annoyed l)y it.— 1 liivr. 337. All trades and manufactures which arc set up in a town, and occasion inconvenience to the whole neighbourhood, or which arc carried on so near a public high- w/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 houses arc afterwards built, and new roads constructed near it, the party, in such a case, is not guilty of nuisance; for the public can- not, by their own act of coming to settle in the neighbourhood make that a nuisance which was not so before, on the principle mm m m •*?!■; •A iJfW ■■■■ fy rm iSfttffiiancr* of '■^vohnti non fit injuria." — II. v. Ct'oss, 2 C. §, 10. The keeping of hogs in a town is not onlv a nuisance by statute {^ W. & M. sess. 2, c. 3, § 20), bn't also at common law. — Ji. v. Wi. e. 7 '>, § 4 ; 2 Jil. Com, U'. So, whatever outrages d<V(('. witii a i>i>r(ihinij- bouvhooil, 111'- licen ;th, 1 'Vf'-. ''''■^- ^^ n\'^\\^, sccnis to bt U7. This, i\o^\ over. .irlnttf nnisance; in carryin;^ un lii- Ibvoe houses, awl it the noise was in a ,Kit the iudictnieni Ic was, if any tliinji. •200. Aii tiisovdovly .'aniin^-liodst's, im |f; 2 i^/. Cm. I'M. injurious to imblii lictahle as a niisdc- 1 Of), n. Any tlmij, Lcr, or which cause- ^eiiiivhourhoctl. may iri,lo erect r/ « «)'*>"'• town, or to put on aor, witiiout jlivin;; Williams, 1 i^f"*"- l"^g or exposing to ,ng them h>to any la conunon nuisance So, to lot a fierce mastiff or hull-dog, that is used to bite people, go about unmuzzled, to the danger and terror of the neighbourhood, is also a common nuisance ; and the owner may be indicted for suffering him to go at large. — 4 Burn's J. 578. So, for a person affected with an infectious disorder to '■:*• mm jV a fJfV' '::'*; i ill , », .1 tt '- the judgment of the court may be, that the defendant shall remove it at his cost — 1 If aw. c. 7b> § 14 ; or the court may suspend their judgment, upon the defendant cnterinir into recognizance to appear at an atljourned or subscijuent sessions, when, if it shall appear to the court satisfactovilv that the nuisance has been abated, the court may impose a nominal fine only ; but if the contrary shall appear to be the case, the court may then pronounce its judgment, of fine and imprisonment, or either, according to the circumstances of the case. The municipal act 12 V., c. 81, authorises the nimiloipa- lities of incorporated villages, towns and cities to make by-liiwji for the abating and removing all public nuisances Vithin their respective localities. By 5 W. & M. c. 11, § 3, if an indictment for a nuisance be removed into the King's Bench, and the defemlunt be convicted, the court may give reasonable costs to the pro- secutor. Indictment for carr^inff on an Offensive Trade. {AreJtlolilj County of , "I The jurors for our lady tlie Clueen, upon thi'ir to wit. j oath present tliat J. S.Jato of the towiiviijp of in the county of , labourer, on the day v{ in the year of the reign . our sovereign lady Victoria, with force and arms, at the township aforesaid, in the count}- alVne- said, near unto divers public streets, being tlie Ciueen's common highwa}', and also near unto the dwelling-houses of divers lioire subjects of 01 r said lady the Queen, there situate and Iniiicr, unlawfully and injuriously did (make, erect and set >ip, and cause and procure to be made, erected, and set up, a ((.riain furnace and boiler, for the jjurpose of boiling tripe and dtiur entrails and offals of beasts ; and that the said J. S. on the day and year aforesaid, and on divers other days and tinit's. ( ' between that day and the day of the taking of this iii(|nisi[i,iii, at the township aforesaid, in lbs county aforesaid, unlawfulh and injuriously did boil, and cause and procure to be boiloJ iii the said boiler, divers large quantities of tripe, and uilu'reii. trails and offals of beasts), by reason of which said premise!.. divers noisome, offensive, and unwholesome smokes, smells and stenches, during the time aforesaid, were from thence emitted and issued, so tliat the air then and there was, and yet i?, greatly filled and impregnated with the said smokes, smells, and stenches, and was and is corrupted, offensive, uncomfortiible and unwliolesome, to the great damage and common nuicanceol all the liege subjects of our said lady the (iueen there inluiliit- ing, being and residing, and going, returning, and passing through the said streets and highways, and against the peace of our lady the Queen, her crown and dignity. sfcnclant sliall or the couvt ilant cnterinif or subscciucnt isfactovilv tl\at pose a nominal ;o he the case, it, of Snc ami jcumstanccs of , the muuiclpa- to make by-laws .uisanccs Avitliiu .t for a luiisaiu'c le defendant k 03t8 to the pro- ide. {ArclihiUi ;),ucen, uponllioir le of the towik^iip day of ady Victuria, wiili vho county atVire- dueen's comuvju ises of divers liege situate ami \w'm. and set up, and set up, a CL'ilain ntr tripe aiiil othei id J. S. on tliLMlay ays and times, ( ; of this imiuisiliuii, )resaid, unhiwfiiliy ure to be boiled in ipo, and odier on- .ich said pri'inisos smokes, smells and roin thence cniitied •e was, and yet u. ,id smokes, smells, sivc, nncomlortiildi' ;ommonnuiEanccol ueen there iuluilm- rning, and passin; against the peace ity. Second Count, for Continuing the Nuisance. 595 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 inquisition, with force and arms, at the toVvnship aforesaid, in the county aforesaid, (a certain other furnace and boiler, for (lie purpose of boiling tripe and other entrails, and ofitils of beasts, before that time made, erected, and set up, by certain persons, to the jurors aforesaid unknown, unlawfully and in- juriously did continue ; and that the said J. S. on the said (lav of in the year last aforesaid, and on divers other days and times) &c., as in the first coupt from the ( ) to the end. OATH— AFFIRMATION. An oath taken on the common prayer book, containing the epistles and gospels, is good. — 2 Keb. 314. The Stat. 15 G. III., c. 39, gives authority to justices to administer oa*hs 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 Kch. 314 ; and they are allowed to put on their hats when sworn. — 2 Str. 821. A Mahommedan on the Koran — 2 Str. 1104 ; and a Gcntoo, according to the custom of his religion. — 1 Atk, 21. It is immaterial what the particular opinions of persons are professing Christianity, as far as regards the taking of an oath ; it is only necessary that they believe the sanctity of an oath, the existence of a Deity, and a future state of rewards and punishments. — Pcake, R. 11. But a person having no idea of a God, or a future state of retribution, cannot be admitted to take an oath. — Leach, 482. *r>y 49 G. III., c. 6, Menonists and Tunkers are allowed to make affirmation instead of oath, in like cases as Quakers. *By 10 G. IV. c. 1, § 1, Quakers, Menonists and Mora- vians, arc permitted to affirm in criminal cases, making a certain declaration in the form given in the act, previous to sueli affirmation. § 2. Perjury may be assigned on affirma- tion so made, if wilfully false. By the General Interpretation Act, 12 V., c. 10, § 5, art. 13, the word " oath" shall be construed as moaning a solemn affirmation, whenever the context shall bo applied to any person and case by whom and in which a solemn affirmation may be made instead of an oath ; and in every case where an oath or affirmation is directed to be made before any person or officer, such person or officer shall have full power and authoi ;y to administer the same, and to certify its having been made ; and the wilful making of any false nV IK m i 1 ' .11 I «■ B '^'^>A'-jm^'WW- ■■'■ > tr i'i ' ! I I fei •1 ' '.■•J ;•;% |-|||,r,v.tP«^ ['m m li'i 59G ^fSttv* statement in any such oath or aflBrraation shall be wilful and corrupt perjury, and the wilful making of any false statement in any declaration required or authorised by any such act as aforesaid shall be a misdemeanor, punishable as wilful and corrupt perjury. OATHS OF OFFICE. By 13 & 14 v.. c. 18, § 1, the former act, *3 W. IV., c. 12, is repealed. § 2 enacts that, after the passing of this act it shall not be necessary for any person appointed to any office in this province, civil or military, or the mayor, or other officer, or member of any corporation therein, or for any person admitted as a barrister, advocate, notai*y public attorney, solicitor, or proctor, to make any declaration or subscription, or to take or subscribe any other oath than the following, viz : I, A. B., do sincerely promise and swear that I will be faith- ful and bear true allegiance, to Her Majesty (iueen Victoria, (or the reiynimj wccre!(ja for the time heiuy), as lawful soverei;jii of the United Kingdom of Great Britain and Ireland, and of this province, dependent on and belonging to the said kingdom; and that I will defend her to tlie utmost of my power, acfaiiis: all traitorous conspiracies or attempts whatever, wliich shall be made against her person, crown or dignity ; and that I will do my utmost endeavour to disclose and make known to her Majesty, her heirs or successors, all treasons or traitorous con- spiracies and attempts which I shall know to be against her or any of them ; and all this I do swear witliout any e(iuivocatioii, mental evasion, or secret reservation, and renouncing all par- dons and dispensations from any person or power wluitsouver to the contrary. So help me God. And also such oath for the faithful performance of the office, profession or calling, as heretofore or hcrcaiter shall be required. § 4. Such oaths to be taken within the period, and in tho manner and subject to the liabilities and penalties for omis- sion, as is now by law provided. § 5. Affirmation allowed, as in civil cases, instead of oath. § G. It shall not be neces- sary for any person, for the purpose of qualifying himself to hold office, or for any other temporal purpose, to take or receive the sacrament of the Lord's Supper, according tr the rites of the Church of England. OFFICER. If a puhlie officer neglects a duty incumbent on him, cither by common law, or by statute, ho is indictable for his offence; )e wilful and Lsc statement y such act as ts -wilful and W.IV.,c.l2, tr of tliis act it (i to any office ayor or otliev lin, ov for any notary public, declaration ov r oath than tlie it I will l)cfi\it\\- lliieen Victoria, lawful sovcveigii t Ireland, and of lie saidlvingdom; ly power, aaaitisi cr, which sliuUV and that I will do ic known to liev or traitorous con- be against bor oi any equivocation, nouncin«!; all par- power wbatsoevot rformancc of tk or hercaiier shall period, and in tk Lnaltics for omis- ffirmation allowed, [hall not he neccs- Lalifying himself lurpose, to take or K according tf ilie |)entonhim,citlicr ble for his offence', <^tttlaUiri?. 597 being considered as amenable to the law for every part of Ills conduct, and liable to punishment for not faithfully dis- cliarging it. — 11. v. Wi/att, 1 SalJc. 380 ; Anon. 6 Mod. 66 ; Jl, V. Bamhridffe, 1 Hmv. c. 66, § 1, Kate. 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 disobedience, it is an indictable offence — It. v. Davis, Say. 16-3 ; 1 Bott. 388 : and a fortiori the disobedience of an order of sessions, or of an order made by two justices, is indictable ; and this too, whether there be another remedy or not ; for the prosecutor has his option either to adopt that remedy, or proceed by indictment at common law. — H. v. Jlohinson, 2 Burr. 71)0. If the order is made upon several persons, they must be all personally served with it, before they can be indicted for disobeyinf; it. It is no defence to a partv, for total disobedience of an order, that when the order was served upon him, he was not able to perform what was required of him, for he is bound to obey an order as much as lies in his power, and is not justified iu utterly disregarding [I— Deacon 8 C. L. ORrilAN CHILDREN. *By 39 G. III., c. 3, it is enacted, that when the father or mother of any infant shall die, or shall abandon their infant child or children, the town-wardens of any township wlievc such child or children shall be, with the approbation and consent of two justices, may bind such child or children as apprentices, until the age of twenty-one years in case of males, and eiglitcen years in case of females ; and the inden- ture under their hands and seals, and countersigned by two justices, shall bo 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 cliildren, are able and willing to support and bring them up, the town-wardens arc not to apprentice them : and by § 4, a further exception is made, where the child has attained the 1 age of fourteen years, in such case he shall not be apprenticed without his consent thereto. See also title " Guardians,'' ^^ Apjyrentices." OUTLAWRY. *By 55 G. III., c. 2, § 2, the several courts of quarter sessions I in the several districts iu this province, are declared to bo in ■'l" '•1' . i m ill 11 598 ®tttlatnr9. III !{i''l mmi m the place and stead of the sheriffs' county courts in Encland so far as respects any outlawry. § 3. The process upo^ every indictment shall be a capias from the court ^vllere 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 accor- ding to law, which said capias shall be made returnable in the Court of King's Bench, on the first day of term next after the sitting of the said court before which such indict- ment shall have been found ; and if the sheriff shall return non est inroitus, then an alias shall issue from the Kinf'< Bench, tested the first day of term, if in vacation, return- able before the Court of King's Bench on the first day of the next term. § 4. And if to the said writ the sheriff shall return won est inventus, then, upon motion in court or before a judge, in vacation, a writ of exif/cjit shall issue tested on the first day of term, or on the last day of the preceding term, if in vacation, directed to the same sheriff 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 sherift' shall, at three successive general quarter sessions, before the return of the said writ, in open court, immediately after the commission of the peace shall be read, nuike proclamation of the persons named in tlie exigent requiring them to render to the indictment. ^ i;, And if the persons so demanded do not appear, the sheriff shall endorse upon the said writ of exigent the followini; return : — Form of Return. By virtue of the within writ, to me directed, at the comt • general quarter sessions of the pouce, held at in and fur tl, district of on the day of in tlie year williin wn;- ten, the within named A. B. was a first time demanded, ami did not appear : and at the court of ^-eneral (juarter sessions ol the peace, lield at aforesaid, for the district aforesaid, on | the day of in the year aforesaid {jir an it mm/ Jr- the said A. B. was a second time deuumded, and did not ap- pear : and at the court of general quarter sessions of the peace, held at aforesaid, (or as the vase may hi) the said a A,B.j was a third time demanded, and did not appear, therefore tiie| said A. B. according to the law of this province, is outlawed. , C. D., Shirif § 7. In all cases wherein any writ of exigent shall bel awarded against any person described in the indictment, aJ being lately conversant in any other district, a writ of pro-[ clamation shall be awarded with the same teste and rctuiu aJ hi tl-I^I 39a(tlron* 599 'ts in England, process upon c court ^vliore a intlictod into ■ of tlic court, Icalt witU accov- ic returnable in jy of term next lich sucli indict- jriff shall return ;rom the King's rac'.itvon, return- \ the first (lay of t the sheriff shall | tion in court, or Hjent shall issue, e last (lay of the the same sheriff. [crm from that in )rm rc(iuircil,'^viile mccessive genoral said writ, in open of the peace M\ ,ons named in tk indictment, v^ tj, appear, the sheriff .iyent the follo^\iIl; [•cted, at the coiwtvi jj^t in uiul tur iL Ihe year within wn;- Time demanded, ami ll (juavler sessions oil [district aforesaid, on | laid ("'• "••* >f "'".'/ *" lied, and did not ap- sessions of the in-ace, 1^ he) the said a A. B, [appear, tliereforetk Ivince, is outlawed. CD., Sh'-rif lof exhicnt shall licl \n the 'indictment, asl krict, a writ of pto-f Ic teste andretuvuai the wit of exigent, directed to, the sheriff of such district, in the form prescribed (vide act), and the shcriflf of such district shall, at three successive courts of general quarter sessions, before the return of tlie said writ, in open court, the first day of the court, make proclamation according to the said writ. i; 8. And shall return the same in the following form : — By virtue of the witliin writ to me directed, I caused the within named A. B. to be proclaimed three several days, iccordiiig' to the effect of the within mentioned statute, as it is widiin commanded me. The answer of C. D., sheriff. § 0. After the return of the exigent and proclamation, the person or persons against whom the same shall have i-isued, shall, in default of appearance, incur the same disa- hihties, and the like process shall be thereupon had as in cases of outlawry by the criminal law of England as it stood on the 17th day of September, 1792. ^ ll. The continu- ance of this act limited to two years, and made perpetual bv *2 v., c. 7. '*By3W. IV., c. 3, any person, accessories as well as prir.cipfils, indicted for any capital offence, shall bo liable to the same punishment, Avhether convicted by verdict or con- fession, or shall be outlawed upon indictment. TAllDON. A pardon is a work of mercy e.\tcnS/uiio, 2H4 ; Jlaiv. c. 37, § 8. But hesides a special pardon granted by the King's charter, there Imav bo a (jeneral pardon or act of grace, passed by the legis- llature ; but in this instance also, proceeding from the king, [for the pardon of certain crimes, committed before a certain Iperiod named in the act. Such was the act of grace of 20 G. III., c. 52. But tlicse acts of general pardon have now, for ■i't& §.;■'. M ! if. V •■ X' if. ;t?' wmvm 600 39attron« a long time, been discontinued ; the special pardon, tlicreforo proceeding from the king's peculiar grace and favour, is that ■with which we have now alone to deal. The king may pardon all oftenccs against th i crown or the subject, wltli some few exceptions. These are — First, The sending ami subject of the realm a j^risoticr into any 'parts hcijond the, seas • which in order to preserve the liberty of the subject, is, by the habeas corpus act (31 Car. II., c. 2, § 12) made a pro:' muniru and unpardonable, even by the king. And socrt)/^(. title "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, ami fined for a nuisance, the king may, after judgment, remit the fine. — 2 Haw. c. 8V, § 33. Upon the same principle, the king cannot pavdon an oifence against a penal statute after the information brought ; for the informer has then acrniiroil a private property in iiis sliare of the penalty. — 3 Jnst.o-i^' 4 Jil. Com. 3l>8. There is also another restriction of a iiceu- liar nature, that aftects the prerogative of pardoninfr; ami that is in the case of parliamentary impeachments, Avlioiein tl^e king's pardon cannot be pleaded to any such impeach- m.. . ; so as to impede incjuiry, and stop the prosecution nf great and notorious oftenders. — 12 & 13 W. III., c. 2. This statute, however, docs not restrain the king from pavdoninf the oiTender after conviction on impeachment. — 4 Bl. O'lin. 391). A pardon is not eftectual unless it is under tlic groat seal ; for a warrant under the privy seal, or sign mamial, though sufficient to admit the party to bail, is not of itself a complete irrevocable pardon. — (5 Str. 1G(). {a) It is also a general rule, that wherever it may be reasonably presmnoil that the king lias been deceived, the pardon is void. There- fore, any su[)pressiou of truth, or suggestion of falsehood, in a charter of pardon, will vitiate the whole, for the kin;; wj misinformed. — 3 Inst. 238 ; 2 Ifaw. c. 37, ?^ H. And tliiji> in conformity with the statute of 27 Ed. III., c. 2, ^viiioJi directs that in every charter of the pardon of felony, tliestii- gcstion, and the name of him that maketh the sugi:e. L in., c. 2, ^vhicll |uof felony, the 5ug- „'th the sug.iiestion, untrue, the chiirtcT I [vc a very imperfect ^^ felonies'' y<\\\m\\ • but the conviction. Itioncd; and if tlic| must recite the m- § 8. 39a(vtron. GOl The statute 13 R. II., 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, assault, or malice prepense ; upon which Sir Edward Coke observes, that it was not the intention of the parliament that the king should ever pardon murder under these circum- stances, 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 by name which wa.s attended with such high aggravations. — 3 Inst. 23<5. And it is remarkable enough, says Sir W. ]>lackstone, that there is no precedent of a pardon in the register for any other homicide than that which happens xe defendendo, or per infortunium ; to which two species the king's pardon Avas expressly confined by the statute of 2 Ed. III., c. 2, ann ^ turn ^ 'MM ill f-kk Ji '. ; 'Mi WW- mm it \h ■iM ■T:')l mim n !'..i, 'tl -^ .. •. !i. I ; : li ii.iBi- J ] lilUl 002 mttnt mtiijtu. this, too, at a proper time ; for if a man is indicted, and has a pardon in his pocket, and ho docs not plead it when ar- raigned, he puts himself upon his trial by pleading the general issue, he thereby waives the benefit of the pardon, and cannot afterwards resort to it. — 2 J/r*"'. c. 37, § 50, (57. By 5 & G W. & M., c. 13, when a pardon is pleaded by any criminal, the judges have a discretionary power to bind liim to his good behaviour, with two sureties, for any term nut exceeding seven years. The effect of a free pardon by the King, is to make the offender in all respects a new man ; to acquit him of all cor- poral penalties and forfeitures annexed to that offence for which he obtains the })ardon ; and not so much to restore liig former, as to give him a new credit and capacity. ])ut nothing can restore or purify the blood when once conuptctl which is the consequence of the attainder of treason or murder, if the pardon 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 ; becau>e the father being a new man may transmit new inhcrituUt.' blood ; though bad the son been born before the pardon, lio could never have inherited at all, nor can he inlierit if hf has an elder brother living, born before the attainder ; fur in that case the land will escheat jjro defect ii Jiuredii^.—l Hide, 358 ; 4 Bl. Com. 402. By slat. =^3 W. IV., c. 5, cor- ruption of blood is taken away, except in cases of hiifh treason ; and it shall be lawful for every person or persons, to whom the right or interest to, or in any lands, after the . The date of the patent shall be stamped on the articles by the patentee or assignee ; and in case of neglect, he shall be deemed to have committed a misdemeanor and liuhleasii: §15. § 17. Patents fraudulently or surreptitiously obtaiiuil, or issued iraprovidently, or upon false suggestion, inav k repealed by scire facias. § 18. Patents to extend tliro'ui:l|. out Canada ; but not to extend to inventions of foreign conn tries, or prevent free importation. § 11>. Former provi.sioii> inconsistent with this act to be repealed. § 21. Interpre- tation clause. By 14 k 15 v., c. 70, § 1, a party holding a patent fi ur an invention extending to one section of the province may obtain the extension thereof to the other section subject t' the right of parties using or vending the same before sucli application for extension is made, without liability to tlie patentee. § 2 recites that it is expedient to repeal tliu L. C. act, G W. IV., c. U, and U . C, *7 G. IV., c. 5, and to consolidate the provisions thereof as applicable to the ^vhok■ province. Said lasL-mentioned acts are thereby repealed, but letters patent granted under the same shall remain in force as if such acts had not been repealed, but subject to the provisions of this act, and the act cited in the preamble, 12 V., c. -4. § 3, Letters patent to be hereafter granted shall rcciu 39at(nt l^ffifjtfii* G05 rcakluc. § li-, shall be subject itains provision L'atents may Lc on appliontiou ts. § 12. Any (1 or discovovcd. tent, shall liuvc jhall he iiwaVul ich inven.tiou to I for more than ting patents for may be substi- 7 G. IV., c. 5, ill uiremcuts of the le applicant lo a i before any llvi- nt, or any notary rcshlcnt. § l.j, be a misdemcanov common ,!iaol ol [Q court ; iinc uui 101.1 three niontlis. [cd on the avti^.•lc^ f neglect, ho shall lor and lia1)loasii: (titiously obtainod ifT(Tcstion, may bo ,o extend thvuugli- IS of foreign conn- Former pvovisioii.> § 21. Intcrprc- Idin'^ a patent for jthc' province way I section subject tu same before ^sucli lit liability to tlie lent to repeal tk i;.IV., c. 5, amlto Icablc to the whole jreby repealed, but I remain in force as Ut to the provisions iible, 12 v., c. -24. Dinted shall rccit-. briefly the substance of the petition upon which they are (Tvanted, and shall contain a short description of the inven- tion or discovery referring for a further description to the specification, and shall grant to the petitioner, his assigns and legal representatives, for the period of fourteen years, from the granting of the same, the full and exclusive right [111(1 liberty of making, constructing, using and vending to others the said invention or discovery. § 4. The patentee of any improvement shall not be at liberty to vend the orii'inal invention, but the improvement only : nor shall the fust inventoi be at liberty to use such improvement. § 5. gvcry inventor before he can receive a patent, shall make a golcmn declaration that he verily believes ho is tlie true in- ventor or discoverer, and sball deliver a written description or specification of his invention or improvement in full, clear and exact terms, and in tl. jase of any machine lie shall fully explain the principle and the several modes in which he lias contemplated the application of that princii)le or character l)V which it may be distinguished from other inventions : to 1)0 accompanied with drawings and written referenceg niailo in duplicate, when the nature of the case admits of such, or with a s})eciMien of ingredients, or of the composition of matter suflicient in quantity for the purpose of experiment ; which description or specification signed by liimsclf and attested by two witnesses shall be filed in the oflice of tlic si'cretary of the province, (a) with a model of the invention if required. § 0. Patents assignable at law. ^ I. Komedy for infringement of patent to be by action at l;nv, with treble costs. § 8. If on the trial of any action it shall appear tbat the specification ddos not contain the whole truth, or that it contains more than is necessary, (such con- cealment or addition being with fraudulent intent,) or that the invention was not originally discovered by the patentee, but had been in use in some public work, or that he had surrep- titiously obtained a patent for the invention or discovery of another person, judgment shall bo rendered for the defendant with costs, and the patent declared void. § 0. Interfering ap- plications for a patent to be referred to three arbitrators, one to be cjiosen by each of the applicants, and tiic third by the secretary of the province. § 10. A fee of £5 to be paid on presenting the petition, which shall bo in full. § 11. Enacts that the privileges of this act shall extend to and include any subject of her Majesty being an inhabitant of this province who shall in his or her travels in any foreign country have !(i) Willi the minister of the bureau of agriculture under 20 V., c. 32, § -4. Vf\ '■W-ifjg' I r ■ M 1^ ■^;?'' b;'''i:!5' U mm') 60G ]9arlCiiinnttarj) Utpvtutntation. i !'. iliscovcrecl and bo desirous of introducing^ into this province any new and useful art, niacliinc, manufacture or composi- tion of matter, &c. : except inventions used in the UniteJ States of America, or in any part of her Majesty's dominionji in Europe or America, which may be imported into this pro vincc by any person or persons for sale, use or othcrwi.so. $ 12. The party desirous of introducing any such forci(»ri invention, to make a solemn declaration that he or she IjoHeves' himself or herself to be the first introducer or p"1'1islior of the same in this province, and that he discovered n lo(l„p thereof while on his travels in some foreign country not bein^t one of the United States of America or any of her ^lajesty's dominions in Europe or America. § 13. All the provision? in the act cited in tlic preamble (12 V., c. 24) shall apply to patents issued under this act as fully and effectually as to patents issued under either of the repealed nets (*(! \V. IV. c. 34 ; *7 CJ. IV., c. 5,) and the said act shall, with ro^^'mdto patents to be issued hereafter, be construed as if this act were referred to in the said act, whenever reference is tliore- in made to the said repealed acts; and the provisions of this act relative to matters subsequent to the issuing of any lottery patent, shall apply as well to letters patent issuctl under the act* hereby repealed, as to letters patent issuing after the pjissin-r hereof: provided that the words "or the prineipl hereof'' in the first section of the act cited in the prearal '] \, ^ 24) shall be repealed. By 20 V., c. 32, §4, the minister of the bureau of agriculture shall receive all applications, drawings, descriptions, specifi- cations and models for or relating to patents for inventions, and shall keep the records thereof : and all acts now in force relating to patents for inventions, and whicli direct any thing to be done by or through the provincial secretary shall be held to liavo directed the same to be done by or through the said minister. ]3y 20 v., c. 33, § 1, patents issued between the union of the provinces and the 12 V., c. 24, are permitted to extend to the whole of the province. PARLIAMENTARY RErRESENTATlON. Legislative Council. By provincial statute ID & 20 V., e. 140, reserved and royal assent given 2ith Ju7ie, 18r>() (a), it is enacted § 1, the * Legislative Council ' shall hereafter be composed of the pre- sent members thereof, and of forty-eight members to be (a) Proclaimed in "Canada Gazette," 14th July, 1850. ^avUamtntav^ IXtpvtutntntion. 007 (Icctctl as hereinafter provided ; and to this end the province 4iall bo divided into forty-eight eh'ctoral divisions, twenty- four in Upper Canada, and twenty. four in Lower Canada, iu the manner set forth in sclicdulo A. § 2. The present coun- eilloi'S to continue to hohl their seats as heretofore, subject to the conditions contained in the imp. act 3 & 4 V., c. 35, A 3. The elective members shall be elected for eight years. U. No person shall bo eligible or shall sit or vote as a legis- lative councillor unless he be a British subject by birth or naturalization, resident in Canada, of the full age of thirtt/ H^iirs, and be legally or equitably seized as of freehold, for his own use and benefit of lands or tenements held in fief, fnmc- alcii or roturc in this provinea, of the value of £2000 currency over and above all debts, char«'( -. and dues, nor unless hia icsiilonce, or his lands or teneni'nts as aforesaid, to the value aforesaid, be witiiin the limits of tin electoral division for which he shall seek to be, or shall have been elected. § 5. Xo person shall be elected a legislative councillor who is a piililic defaulter, or shall have been convicted of felony or of any infamous crime. §0. No member of one bourse shall bo elected a member of the other. § 7. The seat of an elective lo'islative councillor shall be forfeited in any of the following (.ji^s: if he be a public defaulter, or become a bankrupt, or insolvent, or take the benefit of any law whatsoever in rela- tion to insolvent debtors, or be convicted of felony, or of any infamous crime, or .shall cease to hold a property ([ualifica- tion required by section 4. § S. Upon or before the first day of Septeiuber next following the day on which this act shall receive the royal assent, the CJovcrnor shall issue writs lor ilie election of twelve legislative councillors to reprosent the twelve electoral divisions Jirst entitled to return members to the legislative council as hercinai'ter provided; and the said writs shall be transmitted to the returning officers by the clerk of the crown in Chancery, and be returnable on the first Tuesday of November following; and in cvory scoofid voar thereafter, writs for the periotlical elections shall be issuetl ou or before the first day of l^eptcml)er, and return- able the first Tuesday of November. § l>. The writs of elec- tion shall be in the form of schedule B. § 10. The Governor shall appoint the returning ofiicers for the electoral divisions, from among those j)ersons who might by law be returning officers at election of members of the Jjcgislative Assembly for places within the limits of such divisions. § 11. The returu- in" officer for any electoral division shall fix a place as nearly as may be in the centre of such division, for the nomination of candidates, and the proclamation of the candidate elected. V 'li ■.••if . :1^■• [li^TlEJ mm *i|y m W'Mm k:} ,. fi,'| if' .i:;. 'J' hi :.F B'lilS |- COS |li^vlfainent«Kt|i Xirmefiientaitfom § 12, The electors of legislative conncillors shall, as rccraixU their qualification, be the same as those of the Legislative As- sembly, and shall vote at the places at which they ordinarily vote at the election of the latter : the boundaries and extent of the electoral divisions are dcfmed by schedule A. 8 1:] The laws relating to the election of members of the Legislative Assembly, as regards the qualification of electors ; the issue and return of writs of election ; returning ofiiccrs ; the powers and duties of returning officers and of deputy return- ing officers, and of election and poll clerks ; the prevention or punishment of oft'ences committed at elections or with re- spect to elections; to controverted elections, and to all mattn-s connected with or incidental to elections, shall, except where such laws may be inconsistent with tins act, applv in analogous cases to elections of legislative councillors. § I4, Every candidate for election to the Legislative Council shall. if thereunto required by another candidate, or by an elootur, or by the returning officer, make in person a written declaration in the form of schedule C ; and the i)rovisions of the election laws which, prior to the passing of this act, related to the de- claration of (pialification of candidates for election to the Legislative Assembly, sliall,*witlithc exception of the ainount of property qualification, apply in a precisely similar manner to the declaration of qualification of the camlidate for elcctioii to the Legislative Council. § 15. Tiu) period for wliieli the legislative councillors shall serve shall commence on the duv of the return of the writs, and shall end upon the day next preceding the return day of the writs for the election of their successors. § 1(». Every legislative councillor shall, Lel'ore taking his seat, take the oath in schedule 1), before the clerk of the said council. § 17. The order in which the electoral divisions shall be entitled to return members to the Legislative (.ouncil shall be determined by lot, as soon as po;- sible after the commencement of this .ict, in the maiiiu'r pro- vided in schedule E, and shall forthwith be made known by proclamation. § 18. For the purpose of such deterniiim- tion by lot, the electoral divisions shall bo united in ;.noiipj of four each, as in schedule F. {5 It*. IVriodical elections r,t legislative councillors to represent the several electoral divi- sions shall take place in the order determined by lot, iimi made known by proclamation as aforesaid ; the twelve elec- toral divisions named in the list of the " first drawing," beinj; those first entitled to return members to the said council, and soon. §20. An elective councillor may resign his seat in the same manner and under the same circumstances as a member of the legislative assembly ; and he may hold his lall, as regards Lej^islativo As- they ordinnvily ivies and extent odulc A. § 13. f the I'iOgislative 'Ctors ; tiic issuo n<» olliccvs; the )t' deputy vetuvn- ; the prevention ;tiona or with vo- and to all mattws all, exce\>t wliove is act, apply in auncillors. ^ U, :!ve Council i^liall ^ or by an eloctov, ivrittentleclavatiuu ons of the eleetion „ related to tho dc- l"(>r election to the )tion of the amount cly similar niinuior ulidatc for election ^riod for Avhicli tlie lumoncc on the d;\y upon the day next ln> election ul" tlicir leillor shall, Mm ulo 1), before the :)rder in ^vllicll the rn members lo the lot, as soon as pos- in the maniicv pvo- |h be n\ade known of such detcvmina- Ibo united in jivoups Viodical elections of Ivcral electoral ilivi- .;rmined by lot, and d ; the twelve eloc- rt^t drawing," bcin<; .ho saitl council, and [y resign his scut in circumstances as a ,d he may hoW his seat until the day next preceding that of the retvrn of the y;nt of election of his successor. In case of his resigning or ffoing out at the expiration of the period for which he fs elected, he may bo re-elected subject to the conditions contained in this act. § 21. Elective legislative coun- cillors shall, under the same circumstances as members of tlic Legislative Assembly, be subject to the laws for securing the iudependcnce of the Legislative Assemby of this province. §22. The acceptance by a councillor of the office of the fpeakcr of the Legislative Council, shall not, however, vacate his seat. § 23. In case of accidental vacancy provided for by sections 20 & 21, the Speaker of the Legislative Council, the Legislative Council and the several members thereof shall have the same powers and duties as the Speaker of the Legislative Assembly, the Legislative Assembly and the members thereof, and the writs shall be made returnable within fifty days at furthest from the issue thereof. § 24. An accidental vacancy of the seat for any electoral division happening within the three months next before the regular periodical vacancy of such seat, shall not be filled until the time ap- pointed for filling such periodical vacancy. § 25. In case of any accidental vacancy of the scat for any electoral division, not provided for by the next preceding section, the period of jevvice of the councillor elected to fill such vacancy shall be tliat at which his predecessor would regularly have gone out. ^20. The Speaker of the Legislative Council shall, as hereto- fore, be appointed by the Governor, and shal be selected from amongst the members of the said council. § 27. The councillor who shall be speaker at the time of the passing of tliis act shall continue to be so until he be replaced by another. ^ 28. Each general election of members of the Legislative Assembly shall make a new parliament as heretofore. LOWER CANADA. Schedule A. Limits of Electoral Divisions. liiJf.— The counties of Gaspe, Bonaventurc and Rimouski. ilTan(h'll(e. — The counties of Temiscouata and Kamouraska, the parishes of St. Roch des Aulnets and St. Jean, Port Joli, and the prolongation thereof in a straight line to the province line in the county of L'Islet. A; (a Durnntaye. — The remainder of the county of L'Islet, the counties of Montgomery and Bellechasse and the Parishes of St. Joseph, St. Henri, and Notre Dame de la Victorie, in the county of Levi. 77 ill! :'l| -i:'?.A'-J M i 610 39atlfamentar|} KeiittfiientatCon. Lauzon. — The remainder of the county of Levi, the counties of Dorchester and Beauce. Kennebec. — The counties of LotbiniCre, Megantic and Artha- baska. De la ValHhre. — The counties of Nicolet and Yamaska, the Townships of Wendover, Grantham and that part of Upion which lies in the county of Drummond. WeUingtan. — The remainder of the county of Drummond, tlie county of Richmond, the town of Sherbrooke, the counties of Wolfe, Compton and Stanstead. Saurel. — The counties of Richelieu an^ Bagot, the Parishes of St. Denis, La Presentation, St. Rarnabe, and St. Jude in the county of St. Hyacinthe. Bedford. — The counties of Missisquoi, Bromc and Shefford. Rougemont. — The remainder of the county of St. Hyacintlie, the counties of Rouville and Iberville. JtfbntorDjV/e.— The counties of Vercheres,Chambly and Laprairie, De LorimuT. — The counties of St. John's and Napierville ; St, Jean Chrysostome and Russeltown in the county of Chai- eauguay ; Hemmingford in the county of Huntingdon. The Laurcntidcs. — The counties of Chicoutimi, Charlevoiv, Saguenay and Montmorency, the Soignory of Beauport,tlie parish of Charlesbourg, the townships of Stoneham and Tewkesbury, in the county of Uuebec. La Salle. — The remainder of the county of Quebec, the countv of Portneuf, and all that part of the Bunlieu of Quebec which lies within the parish of Notre Dame de Uuebec, Stadacona. — The remainder of the city and Banlicu of Quebec Shawineijan. — The counties of Champlain and St. Maurice, the town of Three Rivers, the parishes of Kitrr du Ljiip,ii L^on, St. Paulin, and the township of Ilunterstowu ana its augmentation, in the county of Maskinonge. De Lanaudibre. — The remainder of the county of Maskinoiifi, the counties of Berthier and Joliette, with the exception o; the parish of St. Paul, the township of Kildare and its | augmentation, and the township of Cuthcart. Rcpentujny. — The parish of St. Paul, the township of Kildare I and its augmentation and the township of Cathcart in the county of Jolietie, the counties of L'Assoniption and Montcalm. Mille Inks. — The counties of Terrebonne and Two Mountains, Jnkcrman. — The counties of Argenteuil, Ottawa, and Pontiac.) Ahna. — The Parishes of Long Point, Pointe aux TremM(s,[ River des Prairiea, Sault aux Jiecollets, in the countv ofl Hochclaga, and that part of the Parish of Montreal wliichl lies to the cast of the prolongation of St. Denis Street; tliel ation* , the counties of ntic and Aitha- i Yamaska, the natpart of Upion ■ Drummond, tlie ooke, the counties nt, the Parishes of 6, and St. Jude in le and Sheiford. St. Hyacintlie, tk mhlyandLaprairie. nd Napicrville ; St. the county of Glial- ' of Huntingdon, outimi, Charlevoix, nory of Beaupon,ilw ps of Stonehamand auebec, the comity Banlieu of Q,uck Dame dc Uuebec, Id Banlieu of Uuebec and St. Maurice, tlie if Riecr ihi Luiij), St. of Ilunterstown aua laskinonge. iunty of Maskinoiigi.l Iwith the excepiiono: ,p of Kildare and its luthcart. townsliipof Kildaiel lip of Cavhcarl in liie L'AsBomption ani and Two Mountains,! lottawa, and Pontiac. IPointe aux TremhM bets, in the counts o lish of Montreal which •f^t. Denis Street; the county of Laval, that part of the city of Montreal which lies to the east of Bonsecours and St. Denis Streets, and their prolongation. yk'toria. — The remainder of the city of Montreal exclusive of the parish. Jluiaud. — The remainder of the parish of Montreal and the counties of Jacques Cartier, Vaudreuil and Soulanges. He Salaherry. — The remainder of the county of Chateauguay, the remainder of the county of Huntingdon, and the county of Beauharnois. UPPER CANADA. ]\'atern. — The counties of Essex and Kent. ^i, Claif'—'^^^ county of Lambton and the West Riding of Middlesex. Malahide. — The East and West Ridings of Elgin, the East Riding of Middlesex and the city of London. Tccumsdh. — The counties of Huron and Perth. Saugeen. — The counties of Bruce and Grey and the North Riding of Simcoe. j^^^l.^ — The North and South Ridings of Wellington and the North Riding of Waterloo. gg^f^ The South Riding of Waterloo and the North Riding of Oxford. j<^^^(,g. — The South Riding of Oxford and the county of Norfolk. fjIg^^Thc East and West Ridings of Brant and the county of Haldimand. Smam. — The counties of Lincoln and Wclland and the town of Niagara. Burlington. — The North and South Ridings of Wentworth and the ciiy of Hamilton. //„„,e. — The counties of Halton and Peel. Midland.— The North Riding of York and the South Riding of Simcoe. . ]'rtr/,-._The city of Toronto and the township of York. A'lVs.— The East and West Ridings of York (except the township of York) and the South Riding of Ontario. (Queen's. — The North Riding of Ontario, the county of Victoria and the West Riding of Durham. I A'eirras^/e. — 'I'he East Riding of Durham and the East and West Ridings oi Northumberland. |^wl^— The counties of Peterborough, the North Riding of Hastings and the county of Lennox. I^iii'n/^.— The South Riding of Hustings and the county of Prince Edward. :m B'la 4ii:| •mm. i'i- !■' i S if I J M:t'<3 h1II*<; :;l' C12 jiarlCamentari) I^tpvtntntutlon^ Cataraque. — The counties of Addingtcn and Frontenac and the city of Kingston. Bathurst. — The South Riding of Leeds and the North and South Ridings of Lanark. Rideau. — The counties of Renfrew and Carleton and the city of Ottawa. 'St. Lawrence. — The town of Brockville and township of Eliza- bethtown, the South Riding of Gronville, the Nortli llidinr of Leeds and Grenvilie and the county of Dundas. Eastern. — The counties of Stormont, Prescott, Russell, Glen- garry, and the town and township of Cornwall. SCHEDULE B. Province of'Canada : Victoria, by the Grace of God, of the united kingdom oi Great Britain and Ireland, Queen, defender of the faith. To the returning officer of , greeting : Whereas . We therefore coniinand you, firmly onjoiniii" that having first made proclamation in the said electoral divisiiM of , immediately after tlie receipt of this our writ, ainj thereby notified (giving not less than eight days' notice thercnf.i a day and place for electing a legislative councillor to servo iVr the said electoral division of , in our Legislative Council, vou cause on the same day and place a legislative councillor, ilip most fit and discreet, to be freely and indifierently chosi'ii lo represent the said electoral division of in our Lo^nslativo Council, by those who shall bo present at the day of election !o be fixed by such proclamation as aforesaid, and the nainci such legislative councillor so chosen, in certain indentiiics be- tween you and those who shall be present at such elcctio:i (whether the person so chosen shall be present or absent) voa cause to bo inserted, and cause the said person so diosoii us aforesaid to come to the said Legislative Council, so that the saiil legislative councillor have full and sufficient power for him?i!i and commonalty of the said electoral division of , sever- ally from them to do and consent to .those things which ilioii and there by the favour (..''God shall happen to be onlaiiied \<\ the common council of our said province, upon the said alliiir?. so that for default of such powers, or through iini)rovi(lciit election of such legislative coiuicillor tlie said affairs remain not undone in anywise. And we will not that any minister of the churches of Enfjiaiii or Scotland, or a minister, priest, ecclesiastic, or teacher, eiiliir according to the rites of the church of Rome, or under any other form or profession of religious faith or worship, by any means be chosen ; and that you certify forthwitli unto us, into our Chancery at the city of , the said election so made, di: tinctly and openly, under your seal, and the seals of those uIdi ontenac and tin- North and Souih ton and the city ivnship of Elizii- ihe North RiJiii;f f Dijndas. tt, RussoU, GIlmi- nwall. nited kingdom of jf the faith. lU, firmly enjoining: d eloctoviildivisi'in .his our writ, ami lys' notice thereof.) uncillor to serve for shitive Council, you itive councillor, ilio ■ftbrently chosen to in our Loirislaiive \o day of election to d, and the name < f rtain indentures be- nt at such election .ent or ahsenl) you •)crson so chosen as mcil,so that the ^ai.l t power for liimsoli on of sever- e things which then n to be ovdiiinetl by ,pon the said aliiur?. "\ro\ip;h iniproviilcit lid alfairsvomainiioi IchnrchcsofEncUnl llic, or teacher, eiiliot le, or under any other Irship, by anymoMsl Ih unto us, inlo our ] lection so made, d'.^ lie soals of those wlo shall be present at such election, sending unto us one part of the said indentures annexed to these presents, together with this our writ. In testimony whereof we have caused these our letters to be made patent, and the great seal of our said province of Canada to be hereunto affixed. Witness, At our government house, at the city of , in our said province of Canada, the day of in the year of our Lord, one thousand eight hundred and and in the year of our reign. By coiT^i^and — A. B., Clerk of the Crown in Chancery. SCHEDULE C. Declaration of Qualification. — I, A. B., declare and testify that 1 am of the full age of thirty years ; that I am a British subject, anil that I ^"^ a resident in (Ziw' insert name of electoral division In irlii'ch candidate resides,) that I am duly seized at law (or in equity) as of freehold for my own use and benefit, of the foUow- iivT lands (or tenements), held in free and common soccage, (or duly seized and possessed for my own use and benefit of lands (or tenements) held en fief or eu rofure, or en franc alcti (as the case may be.) that is to say, of (Jure insert a correct and clear ikarrlpiton of the lands or tenements), I declare to be of the uijl value of two thousand pounds currency, over and above all rents, mortgages, charges, and incumbrances charged upon, or ihie or payable out of, or airecting the same; and I further declare that I have not coUusively or colourably obtained a title to, or become possessed of the said lands (or tenement.s) or any piirt thereof, for the purpose of qualifying or enabling me to bo returned as a member of the legislative council of this province. SCHEDULE D. Oath of Alley inncc. I, A. B., do solemnly promise and swear that I will be faith- ful anil bear true allegiance to her Majesty Queen Victoria as liuvful Sovereign of the United Kingdom of Great Britain and Ireland, and of this Province of Canada depend'.'ut on, and lielonjjing to the said United Kingdom ; and that I will defend her to the utmost of my power against all traitorous conspira- cies and attempts whatever, which shall be made against her person, crown and dignity; and that 1 will do my utmost endeavour to disclose and make known to her Majesty, her heirs and successors, all treasons and traitorous conspiracies and traitorous attempts which I shall know to be against her or any of them ; and all this I do swear without any equivoca- tion, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or persons whatever to the contrary : — So help me God. 'Ill ■ii "■■'■''■'IkW i ■■■'■■ Hi ! ■•«*^'l m ■,t.\i -iiifiiil 614 ^^vUamtnt^vs JXtpvtntntntion. 'W 4ft I SCHEDULE E. Drawing by Lot. 1. The Speaker of the Legislative Council shall cause to to placed before the Governor in council twelve boxes marked respectively 1, 3, 3, 4, 6, 6, 7, 8, 9, 10, 11, 13. 3. The names of the forty eight electoral divisions shall be plainly written separately upon a like number of pieces of paper of the same shape and size. 3. The clerk of the Legislative Council shall place these papers in the boxes, having first shewn them, and then folded them so as to conceal the writing. 4. He shall place in each box the names of the electoral divisions which form the group in schedule F., correspondint' in number to such box. 5. Having shaken the boxes, he shall four several times withdraw one piece of paper from each box in succession, unfold each piece of paper in turn as it is withdrawn, exhibit it, and declare aloud and write down on a list the name written thercdn. 6. Four lists of names of electoral divisions shall in this way be made by the clerk of the Legislative Council on four sepa. rate pieces of paper previously headed respectively " First Drawing," " Second Drawing," " Third Drawing," and " Fourth Drawing" : in each of which lists there will be twelve names. 7. These lists shall be then and there authenticated by the signatures of the executive councillors present, and the counter signature of the clerk of the Legislative Council, and shall remain of record in the office of the Executive Council. 8. The result of the drawing shall be embodied in a minute of council and communicated without delay to the Governor. SCHEDULE F. Groups of Electoral Divisions — Loivcr Canada. Croup 1. — Gulf, Grandville, De la Durantaye, and Lauznn. Gi'oup 3. — The Laurentides, La Salle, Stadacona an.l Shawinegan. (iroup 53. — Kennebec, De la Valllt^re, Wellington and Saurel. f/rniip 4. — De Lanaudiere, llepentigny, Mille Isles and Inkerman. Group 5. — Bedford, Rougemont, Montarville, and De Lori- mier. Group 6. — Alma, Victoria, Riga'id, and De Salaberry. Upper Canada. Group 7. — Western, St. Clair, Malahide, and Tecumieth. Group 8. — Saugeen, Brock, Gore and Thames. Group 9. — Erie, Niagara, Burlington, and Home. Group 10. — Midland, York, King's and Queen's. Group 11. — Newcastle, Trent, Quinte and Cataraque. Group 13. — Bathurst, St. Lawrence, Rideau and Eastern. itfon. all cause to Ijo boxes marked risions shall W ir of pieces o[ all place these and then folded of the electoTid ,, corresponding ir several times iccession, unfold 1, exhibit it, and > written thereon. shall in this way ,cil on four sepa- spectively '| First Drawing," and iere will be twelve lenticated by the U, and the counter Council, and shall ve Council. )odied in a minute to the Governor. \cr Canada. Lye, and Lauznn, [, Stadacona and linston and Saurcl Mille Isles and ^ille, and Do Lori- )e Salaherry. and Tecumicth. limes. Home. ueen's. d Cataraque. au and Eastern. HOUSE OF ASSEMBLY. Electoral Divisions. By 16 v., c. 152, entitled an act to enlarge the representa- tion of the people of this province in parliament, it is enacted that from and after the end of this present parliament, the counties, ridings, cities and towns, and seignories of counties hereinafter mentioned shall be the subdivisions of the province upon which the representation of the people thereof shall be based, viz. : Lower Canada, Counties and electoral divisions in, viz. : Gaspe, Bonaventure, Rimouski, Temiscouata, Kamouraska, L'Islct, Montmagny, Bellechasse, Levis, Dorchester, Beauce, Megantic, Loibiniere, Chicoutimi, Tadoussac, SaguenaVf Montmorency, Q,uebec, (county of,) Q,uebcc, (city of,) Portneuf, Champlain, Three Rivers, (town of,) St. Maurice, Maskinonge, Nicolet, Yamaska, Berthier, Joliette, Montcalm, b'Assomption,Terrebone, Two Mountains, Argcnteuil, Ottawa, Pontiac, Drummond, Arthabaska, Sherbrook, Wolfe, Shcr- brookc, (town of), Conipton, Stanstead, Shefford, Missis- quoi, (East Riding), Missisquoi (West Riding), Richelieu, St. Hyacinthe, Rouville, Bagot, Iberville, Vercht'res,Chambly, Laprairie, St. John's, Napierville, Chateaugai, Bcauharnois, Huntingdon, Souianges, Vaudreuil, Laval, Montreal, (East Riding), Montreal, (West Riding), Montreal, (city of.) Sec 18 v., c. 76, changiiuj the names of some of these counties, mlollering the boundaries uf others. Upper Canada. 1 2. The several counties, cities and towns In Upper Cana- da shall be bounded, for the purposes of this act, as they now are for the purpose of representation, (a) except as herein provided : and that, for the purposes of this act, each of said counties shall include all the towns and villages within the limits thereof, except such of the said towns as are specially excepted, or hereby declared electoral divisions. 2. Tiie Counties of Huron ami Uruce, and the Counties of hmx & Aildintjton, s\m\\ be respectively united, for the pur- pose of representation ; and each such union of two counties shall form an electoral division. ;}. The following counties shall be divided into Ridingd, and each form an electoral division : 4. The County of York — Three Ridings. The North Riding sha\l consist of the townships of King, (a) See title '* Comtiei," p. 248. "1.1 to 1'. If ipii imm ta*: ' 'i «■ C16 39a v(f amen tattle Hetivf fiientatfon. Whitchurch, Georgina, East Gwillimbury and North Gwillim. bury. Tfie East IikIuitjf,o{t\ni townships of Markham, ScavboroiKrli, and that portion of the township of York l3ing east of Yongc- street, and the village of Yorkville. Tfie Went Riding, of the townships of Etobicoke, VaiKrliau, and that portion of tlie township of York lying west of Yonrrc- street. 5. The County of Middlesex — Two Ridings. The East Riding shall consist of the townships of West Nis- souri. North Dorchester, Westminster and London. The West Riding, of the townships of Mosa, Ekfrid, Caradoc, Metcalfe, Adelaide, Williams, Lobo and Delaware. 6. The County of Oxford — Tico Ridings. The Korth Riding shall consist of the townships of East Nissouri, East Zorra, West Zorra, Blandford, Blenheim, and the town of Woodstock. The South Riding, of the Townships of North Oxford, Wej; Oxford, East Oxford, Norwich and Dereham. 7. The County of Hastings. — Two Ridings. The Xorth Riding shall consist of the townships of Lake, Tudor, Grimsthorpe, Marmora, Madoc, Elzevir, Rawdoii, Hun- tingdon and Hereford. The South Riding, of the townships of Sidney, Thurlow, Tyendinaga, the village of Trenton, and the town of Belleville. 8. 77/c County of Durham — Two Ridings. The East Riding shall consist of the townships of Cavaii, Manvers, Hope, and the town of Port Hoj)e. The West Riding, of the townships of Clarke, Darlington and Cart Wright. 9. The County of Xorthumherland — Two Ridimjs. Tfie East Riding shall consist of the townships of Craiiialie, Brighton, Murray, Seymour and Percy. IVte Wist Riding, of the townships of Hamilton, Haldimand, Alnwick, Louth, Monaghan, and the town of Cobourg. 10. The County of Ontario — Two Ridings. The Xorth Riding shall consist of the townships of Reach, Uxbridge, Brock, Scott, Thora, Mara, Rama and Scugog. The South Riding, of tlie townships of Whitby, Pickerinc, and the village of Oshawa. H. The County of Wcntworth — Two Ridings. The Xorth Riding shall consist of the townships of Beverley, ■'•',^' ation. North Gwillim- m, Scarliorougli, ' east of Yonge- icoke, Vaughaii, ; west of Yonge- 'iiUngs. ips of "West Nis- ndon. Ekfrid, Caradoc. iware. Ulings. jwiisliips of East rd, Blenheim, anil orth Oxford, Wes; 1. ownships of Lak', 'vir, Rawdon, Hun- Sidney, Thurlow, town of Bellevilk. Ridingf, wnships of Cavaii, I ce, Darlington m Vico KidiiKjs. iships ofCramalic, ^milton, Ilaldimand. )f Cobourg. Ridings. )wnships of Reacli, la and Scugog. Whitby, Pickering, CO Ridings. Lnships of Beverley, l^arifsmentiitfi iSitpvtutntution. 6i7 Flamborough East, Flamborough West, and the town of Dun- das. The South Riding, of the township of SaUfleet, Binbrook, (tlanford, Barton and Ancaster. 13. The Counti/ of Lanark — Two Ridings. The North Riding shall consist of the townships of Sher- brooke North, Dalhousic, Lanark, Ramsay, Lavant, Darling and Pakenham. The South Riding of the townships of Montague, Elmsley Xortli, Burgess North, Sherbrooke South, Beckwith, Drum- niond, and the town of Perth. 13. TJic County of Simcoc — Two R 'dings. The North Riding shall consist of the townships of Nottawa- jasra, Sunnidale, Vespra, Flos, Oro, Medonie, Orillia, Tiny, Tav, Machedash, and the town of Barrie. The SoutJi Riding, of the townships of West Gwillimbury, Toctunscih, Innisfil, Essa, Adjala, Tosorontio, Mulmur and Mono. 14. The Counties of Leeds and Grcnvillc — Tlircc Ridings. The North Riding of Leeds and Grenvillc shall consist of the townships of Kitley, Elmsley, Wolford, Oxford and South Gower. The South Riding of Leeds, of the townships of Yonge, Escott. Front of Leeds and Lansdowne, Rear of Leeds and Lansdowne, South Crosby, North Crosby, Bastard and Burgess. The South Riding of ftrcnvillc, of the townships of Edwards- bur" and Augusta, and the town of Prescott. 15. The Connty of Wellington — Two Ridings. TJie South Riding shall consist of the town and township of Giielph, and the townships of Puslinch, Eramosa and Erin. The North Riding of the townships of Nichol, Garafraxa, Pilkington, Peel, Arthur, Maryborough, Amaranth, Luther and Minio. 16. The County of Waterloo — Two Ridings. The North Riding shall consist of the townships of North Waterloo, (including the town of Berlin) Woolwich and Wellesley. The South Riding shall consist of the villages of Gait and Preston and the townships of South Waterloo, North Dumfries and Wilmot. The present township of Waterloo being divided for the pur- poses of representation only into two townships of North Waterloo and South Waterloo. North Waterloo to consist of 78 11 ti- if ^m lii i ■ i ' m m 618 l&avUamtntavsf Utpvtuttitation. Ml i! I Si J ■I P that part of the present township of Waterloo lying withii. the following limits, viz., commencing at the south-west angle of lot No. 40, in said township, then easterly alonir the southerly limits of said lot, and of lots Nos. 47 48, 50, 51, and 53, and the prolongation thereof to the middle of the Grand River; thence along the middle of said river against the stream to the prolongation of the limit be- tween lots Nos. 113 and 114, and along the prolongation of the limit between said lots No. 113 and 114, and along the limits between the said lots Nos. 113 and 114, northerly and easterly to the westerly limits of lot No. 107, thence along the westerly limits of said lot No. 107, northerly to the nortlierlv limits thereof, thence along the northerly limits of said lot 107 and of lots Nos. 106, 84, and 96 easterly to the easterly boun- dary of said township, thence along the easterly, norlherlv and westerly boundaries of said township, in a northerly westerly, and southerly direction to the place of beginning. South Waterloo to consist of all the remaining part of said present township of Waterloo. 17. County of Brant — Tivo Hidings. The Eaat Ridinij shall consist of the townships of South Dum- fries, Onondaga, East Krantford and the village of Paris. The W»st Rulintj of the townships of Burford, Oakland, Tuscarora, West Brantford, and the town of Brantford. The present township of Brantffird being divided for the purposes of representation only into the township of Eust Brantford and West Brantford. East Brantford to consist of all that portion of the prcscn; township which lies on the east side of the Grand liivor. West Brantford to consist of all the remainder of said present township. 18. County of Elgin — Two Hidings. The East Riding shall consist of the townships of Bayham, Malahide, Yarmouth, South Dorchester, and the village of St Thomas. The West Riding shall con3i3t of the townships of Southwold, Dunwich and Aldborough. 19. Each of the other counties in Upper Canada, viz., the counties of Carleton, Dundas, Essex, Frontenac, Glengarry. Grey, Haldimand, Halton, Kent, Lanibton, Lincoln, Norfork, Peterborough, Peel, Perth, Prescott, Prince Edward, Renfrew. Russell, Stormont, Victoria and Welland shall form an electoral division. 20. The townships of Gloucester and Osgoode for the pur- pose of representation only to be detached from the county 0! Carleton and attached to the county of Russell. atioti. ]9avlfiiin(ntjiti; Utpvtntntation. 619 ) lying within the south-west easterly along lota Nos. 47, thereof to the 1 middle of said of the limit he- lie prolongation t, and along ihc 4, northerly and thence along the ' to the northerly ts of said lot 107, he easterly boun- isterly, northerly in a northerly, of beginning, ling part of said 'I'vgs. >ips of South Dum- itre of Paris. Burford, Oakland, Rrantford. ly divided for the tovvnshii) of East jiou of the prcscul ^irand lilvcr. ider of said prcscm nships of Bayham, the village of St [ships of Soulhwold, 'r Canada, viz., the Inteniic, Glengarry. Lincoln, Norfolk, Edward, Renfrew, lall form an electoral Isgoode for the pur- from the county oi Lell. «jl. The Ctti/ of Toronto shall form an electoral division. 23. The City of Khujston ditto. gjj. The City of Hamilton do. 24. The township of Brock villc .shall form an electoral division, and for the purpose of representation only shall include in ad- dition to its present limits, the whole of the township of Eliza- belhtown, which shall for that purpose bo detached from the county of Leeds. 25. The town of Niagara shall form an electoral division, and for the purpose of representation only shall include the whole of the township of Niagara, which shall for that pur- pose be detached from the county of Lincoln. 26. The town of CorinraU shall form an electoral division, and for the purpose of representation only shall include in addit'on to its present limits the whole township of Cornwall, which shall be detached from the county of Stormont. 27. The town nf London shall form an electoral division. 28. The town oj liytoun do. GENERAL PROVISIONS. Loioer Canada Representation. § 3. The countiea of Gaspe, Bonavcnturc, Rimouski, Teiniscouata, Kamouraska, L'Islet, Montmagny, Bcllechasse, Levis, Dorchester, Beauce, Megautic, Lotbiniere, Sagucnay, Montmorency, Quebec, Portneuf, Champlain, St. Maurice, Maskinong«?, Nicolet, Yamaska, Bcrthier, Jolictte, Mont- calm, L'Assomption, Terrebonne, Two Mountains, Argen- teuil, Ottawa, Pontiac, Compton, Stanstead, Shefford, Riche- lieu, St. Ilyacinthc, Rouville, Bagot, Iberville, Vercheres, Cliambly, Laprario, St. John's, Napiervillc, Chatcaugai, Beauharnois, Huntingdon, Soulangcs, Vaudreuil, and Laval shall be represented each by one member in the legislative assembly. The united counties of Chicoutimi and Tadoussac, by one member. The united counties of Drummond and Ar- tliabarka by one member. The united counties of Sherbrooke and Wolfe, by one member. The East Riding and the West Riding of the county of Missisquoi, and the llochelaga Riding, and Jacques Cartier Riding of the county of Montreal, each by one member. The cities of Quebec and Montreal, each by three members. The town of Three Rivers, and the town ')!' Sherbrooke each by one member — (total Go members.) Upper Canada Representation. The city of Toronto by two members ; and each of the other electoral divisions by one member — (total 65 members.) Qualification of Voters. § 4. The qualifications of voters shall be those now fixed ■\ '\A M J I i:i .^,v- /'(■'is *• :M:; mil I l||fcii ill i 620 is^AvUnmtntavs Mt^vttitntaiion. by law, except as otherwise ordered by this act, or by any subsequent act. Provided that the several cities and towns entitled to representation under this act shall not form for electoral purposes part of the counties in which they lie ; and that no one shall have the right to vote at any election of any of the counties or ridings upon lands or tenements or lots of ground lying within the limits of said cities or towns • and where any parish, or part of a parish, township, or part of a township by this act, made part of any city or town for the purpose of representation, tho qualification of electors shall be the same as those of county electors. § 5. Any township or part of a townsliip in Uppe. Canada, by this act made part of a town for the purpose of represcntatioii, shall upon tho election of a member be dealt with (except as aforesaid as to qualification) as if it were a ward of such town and if a poll be demanded and granted, a deputy returning offi- cer shall be appointed for such township, or part of a township, and proceedings had as if it were a ward, except that the town clerk of such township, or in case of his absence, or in- capacity, &c., the assessor or collector shall be appointed deputy returning ofiicer therefor : and whenever any town- ship in Upper Canada is, by this act, divided into two town- ships for the purpose of representation, then tho town clerk of the municipal township so divided, shall be appointed deputy returning ofliccr for that one of tho roprocntatiun townships which is first mentioned in this act, and the as^cv sor or collector for the other ; and if more than one person who may bo by law appointed deputy returning ofiicer, then the returning ofiicer may appoint either ; and if no person who ought to be appointed, or the person who ou/^ht to Lo appointed be absent, or incapacitcd the returning ofiicer mav appoint wiiom he thinks proper. Separate Polls. § 6. In Upper Canada separate polls shall bo held for each incorporated village or town, not divided into wards, and for each ward in every incorporated town divided into wards, and the returning ofiicer for the county or riding '^lia'' ' ' ints deputy returning ofiicer for each such v Uar town, or ward. Provided, that in incorporated villap luwns not (i'vidod into wards the provisions of law rel .• to townshi 4iaII apply as regards the person to be app ilcd rr'uming officer. and the clerk of the village, or to^vn, or the issessor or col- lectar, or other person, as the case may require, shall he ap- pointed accordingly. But in towns divided into wards any person may be appointed deputy returning officer for any ward therein. Provided that nothing in this act shall affect itton* ict, or l)y any ics and towns not form for 1 they Vie; and my election of ■ tenements or cities or tONvna ; »\Tnsliip, or part jity or town for tion of electors tors. § 5. Any natla, by tl\is act •escntation, shall •with (except as ard of sudi town, Lity returning offi- >art of a township, 1, except that the \is absence, or in- lall bo appointed Lcnevcr any town- icd into two town- en the town clerk ,hall be appointed ;l\e representation act, and the asses- c than one person rning officer, then and if no person who OUr^ht to I'O .urninj' oflicor may I lall be held for each Into wards, and for Idcd into wards, and liniT ^^ ••^' '^"intft lar" town, or ward. tuwnsnot(^''vided to townsh'i. -hall ,>(1 rc'urning otlicer, [the t^sessor or col- lequiro, shall be ap- hcd into wards any Ina officer for any [this act shall affect imtUamentavi? l^dire s^ntatioiu C2i the qualification of voters in any snch incorporated village or town, save only that in towns divided into wards they shall vote in tkat ward in which the property voted upon shall le wholly or partly situate, and not in any other. Returning Officers. S 7. In each of the counties in Upper Canada, by this act ditided into ridings, the high-sherift" or registrar of deeds, who without this act would under the second section of the 14 & 15 v., c. 108, be the returning officer for such county, ((hall be the returning officer for the riding thereof first men- tioned in the act ; and where there shall be a high sheriff who is returning officer for the riding first named as aforesaid, the rocistrar of deeds for the county shall be cx-officio the returning officer for the riding secondly named ; subject always to the provisions of the 2nd and 8rd sections of the act last cited in cases where there shall be more than one iicrson who may under the 2nd section of- said act, and of this act, be ex-offieio the returning officer for the same place, or where writs of election shall issue at the same time, or so nearly at the same time that the one shall not bo returnable before the other or others shall issue, for several places for which the same person would be cx-officio returning officer; or when there shall be no returning officer cx-officio, or the person who is such shall be absent or incapacitated. Pro- vided always, that the liigh-sherifF of the united counties of Leeds and Grenvillo shall be ex officio returning officer for the north riding of Leeds and Grenvillo, the registrar of lieedfl for the county of Leeds, ex officio returning officer for the south riding of Leeds; and the registrar of deeds for the county of Grenvillo, ex officio returning officer for the south riding of Grenvillo. § 8. Provision for the appointment of returning officers iu Lower Canada, in certain cases. § It. All augmentations or gores of seignories, parishes, towns, villages, or reserves for the same, not specially mentioned in this act, shall bo considered as forming part of the county iu which the principal portion of such locality, or in the immediate vicinity of which such town, village, or reserve shall bo situate, unless the same shall, under this act, or the act 14 & 15 V., c. 5, form part of some other county or electoral division. And any place mentioned in this act as constituting a parish, township, or village, shall, with its acknowledged limits, be so [iresented for all the purposes of this act, although not Ity law incorporated. § 10. Repeals all inconsistent enact- meuts. *^ 11. Repeals the provisions of the present election W'^'M r^n ;^i iti'f l':'l ;<;t I'l' '! several courts of .03 ; all oflicer? of egistrars, slicriifs, ,-n, and ajijonts for iploycd in tlic col- psty, in the nature Hii incovipdcnt to o'-'i.ilativc Council, y such disfiualiiicii '; recovered by any tion of dcl)t, bill, ictcnt jurisdiction, no person accept- employment, per- 1 of tho crown iu ,lary, or ar.y fee, ;y kind or amouni i:vll he eligible as a tislative Assembly, jAssemhly, orintlie tliereof, during lie iploymont. Iiercccivcr-j^cnoral; Incc ; commissioner ^r-gcncral. cotnmis- gioner of public works ; president of committees of the Executive Council ; minister of agriculture, or postmaster- general, provided he be elected while holding such office, and not otherwise disqualified. § 2. Any officer in her majesty's army or navy, or any officer in the militia, or militiamen (except officers on the staff of the militia, receiving perma- nent salaries), unless otherwise disqualified. § 3. Any com- missioner for temporary purposes, appointed before the passing of this act, and not otherwise disqualified ; or any counsel retained by the crown in any case or matter now pending in the courts of law, and not otherwise disqualified from sitting or voting in either house during the present parliament. Government Contracts. § 4. No person then holding or enjoying, undertaking or executing, directly or indirectly, alone or with any other, by himself or by the interposition of any trust' o, or third party, any contract or agreement with her Majesty, or with any public officer or uopartment, with respect to the public service of the province, or under which any public money of the province is to be paid for any service, work, matter or thing, shall be eligible as a member of the Legis- lative Council or Assembly, nor shall he sit or vote therein as an elected member thereof. Penaltif. S ;"). If any such disqualified person shall nevertheless be elected, his election shall be void ; and if he shall presume to sit or vote, he shall forfeit X500 for every day on which he shall have so sat or voted, recoverable as above. Acceptance of Office^ jf'C. § G. If any member of the Legislative Council, or Assembly, I shall, by accepting any office, or becoming party to any contract or agreement, be disqualified under the foregoing provisions to I continue to sit or vote, his election shall thereby become void, and his scat vacated, and a writ shall forthwith issuo for a new election; but he may bo re-elected, if eligible under the [first proviso to section jj of this act. § 7. l*rovided always Ithat whenever any person holding the office of rcceivcr- Igeneral, inspector-general, secretary of the province, com- Ittissioner of crown lands, attorney-general, solicitor-general, ommissioner of public works, speaker of the Legislativo Coimcil, president of committees of the Executive Coun- kil, minister of agriculture, or postmaster-general, and jicing at the same time a member of the Legislative Assembly, or an elected member of tho Legislative Council, khall resign his office, and witliia one month after ;^vKrr-:''W;s;^. il::i|:| .1 H-.n-vJ:': :l<»; m # 1-. t-!**i? ■'■ mmmiWW' ■' Eft M-mfimsHBM B'U,l .•) ; Pi! i,r.:' 'u.\lU (||i-N.'V'v"i.;, I -;f'i [.(il'itiyjjl! I :, f 'I* 4. 624 3lavicamentats Mtpvtutniution. his resignation accept any other of the said oflBces, he shall not thereby vacate his seat. Itcsignation. § 8. Any member of the Legislative Council or As- sembly may voluntarily resign and vacate his seat as hereinafter piovided. § 9. 'ny such member v;h\\\^l to resign his scat may do so by giving, in his place* notice of his intention to resign it, in which case, and immediately after such notice shall be entered by the clerk on the journals of the house, the speaker may address his warrant to the clerk of the croAvn in chancery, for the issue of a w^rit for the election of a' new member; or such member may address to the speaker a declaration of his intention to resign his seat, in writing, under his hand and seal, licfore two Avitnesses ; which declaration may be so made or delivered either during a session, or in the interval between two ses- sions ; and the speaker may, upon receiving such declara- tion, forthwith address his warrant to the clerk of the crown in chancery, for the issue of a writ for the election of a new member. § 10. Provided always, that no member shall tender his resignation while his election is lawfully contested, nor until after the time during which it may by law be con- tested on other grounds than bribery and corruption. ^ H, If any member of cither house shall wish to resign liis seat m the interval betv,-cen two sessions, and there be then t[« speaker of the house to which he belongs ; or if such uiemljer bo liini'^olf the speaker, ho may address to any two mciiibor; the declaration before mentioned of his intention to resiqi; and such two members shall forthwith address their warrant to the c.ork of the crown in chancery for the issue of a new writ, and such writ shall issue accordingly. Vacancies. §12. If any vacancy shall happen in cither house I.v the j death of any member, or by his accepting office, the speaker, on being informed of such vacancy by any member (if siieli house, in his place, or by notice in writing under the hands and| seals of any two members, shall forthwith address his war- rant to the clerk of the crown in chancery for the issue ofl a new writ ; and if when such vacancy shall happen, or atf any time thereafter before the speaker's warrant shall havel issued, there be no speaker in the house, or the speaker bel absent from the [trovince, or if tho member whose seatisj vacated be himself the speaker, then any two members may address their warrant to tho clerk of tho crown in chancery for the issue of a new writ. § 13. Notice of any vacancy b« the warrant of tho speaker, or of two members, as beforej provided, shall be held to be the notice mentioned in the 24 j itatlow. said offices, he Council or As- ite liis seat, as member wisliing g, in his place, •which case, and ;ercd by the clerl may address his eery, for the issue ; or such member of his intention to (1 and seal, before made or delivered. 1 between two ses- ving such declara- clerk of the crovfn ,e election of a nev no member shall s lawfxdly contested, may by law be con- I corruption. § 11. di to resign his seat d there be tlionn'i or if such uiomber any two mciiAor; .ntention to resign; jlress their wavraw ir the issue of a nevf cither house liy the .oftice, the speaker.! 'anymcmbcrofsuclil J under the hands and |th address bis war- 1 leery for the issue oil shall happen, or atl A warrant shall hawl |e, or the speaker bel le'mbcr whose seatiw i\y two members may To crown in chancerr [ce of any vacancy bj^ members, as beforj iicntioncdintho24J IPenftentfarfi. 625 of the imperial act 3 & 4 V., c. 35, ( Union Act.) § 14. A warrant may issue for a new writ for the election of a mem- ber of the Legislative Assembly to fill up any vacancy arising subsequently to a general election, and before the first meeting of parliament, by reason of the death or acceptance of office of any member : provided that the election to be lield under such writ shall not affect the rights of any person entitled to contest the previous election ; and the report of any election committee appointed to try such previous elec- tion shall determine the validity of such new election. § 15. Ihe foregoing enactments shall be subject to the provision in the 24 § of the act of 1856, for changing the constitution of the ^ .^:;islative Council ; and an accidental vacancy of the seat i" ^'i'i council for any electoral division, happening within Ji-J three months next before the regular periodical vacancy of such seat, shall not be filled up until the time appointed. Provided also, that nothing herein contained shall repeal or affect the provisions of the 22 § of said act, and the acceptance of the office of speaker of the Legislative Council, by an elected member thereof, shall not vacate his seat. PENALTIES. See " Fines — Forfeitures." PENITENTIARY. •By the 3 \Vm. IV., c. 43, the sum of X12,500 was fftanted by the provincial parliament for the erection of a penitentiary in this province, to be vested in his Majesty. By 14 & 15 v., c. § 1, the former act 9 V., c. 4 is repealed. §2. The purposes of the penitentiary defined to be for the confinement and reformation of persons male and female, lawfully convictc('. of crime, and sentenced to confinement therein for a term not less than two years : and Avhenever any offender shall be punishable by imprisonment, such imprison- ment shall, if it be for two years, or any longer term, be in the provincial penitentiary : including offenders convicted by any military or militia court martial, or military authority under any mutiny act. ^ 3. The property to remain vested in the crown, under the custody of the warden and liis suc- cessors. § 4. The warden bound to receive all convicts legally certified : and where sentence of death shall be passed upon any person, and her Majesty's pardon extended to such person on condition of imprisonment in the penitentiary for life, or any term of years, such pardon shall have the same effect as the judgment of a competent court legally sentencing (ucb person to such imprisonment. §5. Convicts in the 70 :!i P ■ it 626 ]9eitU(ntfari^« I M 1 . I, ft J MMm: penitentiary to be clothed at the expenco of the penitentiary in garments of coarse, but comfortable materials, and fed on wholesome food, and kept constantly at hard labour for the benefit of the penitentiary, daily, except Sundays, Good Friday and Christmas day, in such manner as the warden shall deem most advantageous for the public, consistently with the welfare of each convict : except always such convicts as shall be confined in solitude for misconduct, or shall be in- capable of labouring by reason of sickness or bodily infirmity; provided always that any convict of the Roman Catholic per- suasion shall not be obliged to labour on certain obligatory holidays of the church therein named ; each prisoner to bp kept singly in a cell at night, and during the day when un- employed, except in cases of sickness ; and when congregated in the workshops and other places of labour, shall be kept as far separate as possible, and allowed as little intercourse as the nature of their employment will permit, and all conver- sation forbidden not abbolutely required in carrying on the work being done at the moment. § 0. Limits of the peniten- tiary defined, and the warden shall not permit any convict to go beyond the same at any time for any purpose, except with the inspector's permission on any specific work outside the limits, but upon the ground attached to the penitentiary, under rules and regulations. § 7. Provision made for additional improvements for carrying on the "separate" or "solitary' system of discipline. § 8. Contracts on account of the peni- tentiary to be entered into by the warden. § 0. Tiio peniten- tiary to be governed by two inspectors to be appointed Ly the Governor-General ; § 10, their duties to be 1st, to make rules and regulations for the conduct, management, discipline and police of the penitentiary ; 2nd, to consider and deter- mine the terms on Avhich agreements shall bo entered intc hv the warden with parties contracting for convict labour, and also with parties contracting to supply articles for the use of the penitentiary. 4th. To consider and determine the sys- tem of secular education, the place and time of the moral and religious training of the convicts, subject to the approval if the chaplains. 5th. To consider and determine what actsuf the convicts shall bo held punishable ofi'ences, and the punish- ments. Gth. The number of overseers, keepers and guards, and their duties. 7th. To prescribe the articles of food aud clothing, the quantities and quality thereof to be supplied to the convicts. 8th. To attend to repairs and alterations in the penitentiary. 9th. To examine and enquire into its govern- ment, discipline and police; the conduct of its afl'airs; the iiuaucial and commercial afl'airs of the institution ; the fuliil- e pcmtentiavy, als, and fed on I labour for tlic Sundays, Good as tho -wartlcu ansistcntly with such convicts as b, or shall be in- bodily infirmity. lan Catholic pcr- jrtain obligatory ch prisoner to W he day -when un- rlien congregated , shall bo kept as tie intercourse as .t, and all conver- n carrying on tlie lits of the pcniten- mit any convict to .irposc, except Vuli work outside tl\o penitentiary, under lade lor additional ,tc" or "solitary" .ccount of the peui- § 0. The pcniteu- to he appoluted by to be 1st, to make jiigement, discipliuo consider and deior- bfi entered inlc by [convict labour, and iclcs for the use of determine the r-ys- ,e of the moral and to the approval of ermine whut acts of Ices, and the puui^li- weepers and guards, larticles of food and ,f to be supplied to id alteratioub in tlie juiro into its govern- It of itaaffuirs; the ititution; tUcfullil- 39(nftentfavi?* ment of contracts ; administration of its finances ; quality ^nd sufficiency of the food ; that offences are wisely and humanely punished, and order and cleanliness prevail. § 11. Further powers given to the inspectors, viz. : — 1. Admission at all times to the institution, and to the vouchers, ijooks, and records thereof. 2. To investigate the conduct (if its officcrr To summon witnesses ; and every witness ^\^lly summoned neglecting to appear shall, upon conviction jjefore one justice of the peace, (not being an inspector), incur a penalty not exceeding £5, with costs, to be levied by distress and sale, and in default of distress, commitment to the common gaol for any term not exceeding one month, unless sooner paid. 3. To require reports from the warden in relation to any matter connected with the penitentiary. § 12. Said inspectors to visit the penitentiary jointly, as often as they see fit, and at least four times a year, in Feb- ruary, May, August, and November, for seven consecutive davs at each such joint visit. And in the event of the death or unavoidable absence of any one inspector, from any quar- terly visit and meeting of the board, the warden shall act in his stead ; but not so to act at two consecutive meetings of tk board. 2. One of the inspectors to make monthly visit? of not less than two days, for the inspection of its affairs. 3. Regular minutes of all such visits arc to be tept by the inspectors, and entered by the clerk of the peni- tentiary in a book, and the decisions recorded therein, when ^ji-nod by the two inspectors, shall be conclusive, and nothing which is not so recorded shall have such authority : and the warden shall have access to such minute-book at all times, and guide himself thereby. The inspectors shall keep a racworandum-book, entering therein individually any remarks, on the state of the prison, or on the conduct of any officer, or any suggestions he may deem advisable for the better conduct of the institution. 4. The inspectors shall draw I up a code of rules and regulations for the government of the prison, which shall be })rinted and placed within access of j every ofHcor ; a book of record also to be kept of any amend- ments or additions to such rules and regulations, and any instructions or admonitions they may find it necessary to communicate to tho warden, chaplains, physician, deputy warden, or clerk, to be accessible to such otKccrs, and a simi- lar book of record for the guidance of the remaining officers I of the prison. 5. Tho inspectors, at each monthly visit, ill examine the cash, and credit transactions of the institu- Ition for the month previous, and administer the oath required Ito be taken by tho warden and clerk verifying each month's 628 ^tniUntluvs* ^ m ; tM ir I 1 ' ■• <■ '%' accounts. 6. To inspect, at each monthly visit, every cell • and they shall jointly do so at each quarterly meeting. 7 Inspectors, at their quarterly meetings, shall require from the warden a statement and balance-sheet of the affairs of the institution, and examine and certify the same. 8. At their November quarterly meeting to appoint two qualified persons to value the property, real and personal, according to an inventory to be furnished by the warden ; the valuators to be sworn to their valuation before any justice of the peace for the united counties of Frontenac, Lennox and Addington. 9. To require from the warden, chaplains and physician and from any other officer they may think fit, an annual report of their several departments, to be made up to the 3l8t day of December. 10. The inspectors shall make their annual report to the Governor on or before the 10th February in each year, comprising the details prescribed. § 13. Besides inspectors, the officers of the penitentiary shall consist of one warden, one Protestant chaplain, one Roman Catholic chaplain, one physician, one deputy-warden and one clerk, to be appointed by the Governor : also, the following officers : one schoolmaster, one storekeeper, one clerk of the kitchen, one matron, one assistant-matron, and the requisite number of overseers, keepers, and guards; the schoolmaster, storekeeper, clerk of the kitchen, matron, assistant matron, and overseers, to be appointed by the in- spectors, and the keepers and guards by the warden, with the consent in writing of the inspectors. § 14. The board of inspectors authorised to suspend sum- marily, any of the officers appointed by the Governor, for misconduct, of which they shall at once notify the govern- ment; and in case of the death or absence, &c., of the warden, the inspectors, or one of them, shall sit in his room until a successor appointed, or the warden resume his duties, The warden authorised to supcnd summarily, for misconduct, I any of the subordinate officers aforesaid, until he shall make the inspectors acquainted. § 15. The warden to be the chief executive officer of the penitentiary, and in all cases not provided for by any rule or regulation, may act in such manner as he may deem most I advisable, and he with the two inspectors shall be cj-o^w, justices of the peace for each and every district, county aDtJI city throughout the province. I The duty of the warden shall be, Ist. To reside in the! establishment, and visit every apartment and prisoner in iti at least once a day. 2nd. To have in charge the health,! conduct, and safe keeping of the prisoners, and to excrcisel llenftenllarfi. 629 visit, every cell ; rly meeting. 7. lall require from of the affairs of he same. 8. At Dint two qualified irsonal, according en ; the valuators istice of the peace »x and Addington. IS and physician, ink fit, an annual be made up to the jctors shall make ►r before the lOtli tails prescribed, •f the penitentiary tant chaplain, one one deputy-warden, lovernor : also, the e storekeeper, one sistant-matron, and rs, and guards; tlio Ej kitchen, matron, ppointed by the in- the warden, with the 3cd to suspend sum- tho Governor, for notify the govern- hsence, &c., of the lall sit in his room n resume his duties, rily, for misconduct, until he shall make \ ecutivc officer of the ded for by any rule 13 he may deem most rs shall be ea;-ojicio,| district, county ani Bt. To reside in thel it and prisoner in itl n charge the health,! tcrs, and to excrcis9| over the whole establishment a close supervision and personal direction. 3. To designate the employment of each convict. 4th. To see that justice, kindness, and morality prevail ; that no unnecessary se . crity is practised ; and that sick convicts have proper medical attendance and food. 5th. To see that the officers under him are careful and diligent in the discharge of their duties. 6. To make all purchases, sales, and con- tracts under the advice and instructions of the board of in- spectors, and to superintend the industrial pursuits of the prison. 7th. To keep fully, faithfully, correctly, and regularly, .all such books, records and accounts as the inspec- tors sliall direct. 8th. To keep a daily journal of the pro- ceedings in the prison, in which he shall enter all remarkable occurrences, noting therein any infraction of the rules, or any negligence or misconduct of any officer ; any escape, or at- tempt made by any convict ; any well founded complaint of bad or insufficient food, want of clothing, or cruel or unjust treatment, made by any convict, &c., and such journal shall at all times be open to the inspectors. 9th. To admit the inspectors at all times to every part of the prison ; to make provincial and other reports required by the act, or by the inspectors. 10th. To receive and keep a register of convicts immediately on their admission, with the date of their con- viction, &c., and when and how discharged : an inventory of the clothes and property of the convict at his reception, the same to be preserved and restored on the discharge of such convict. It shall also bo the duty of the warden to read to each convict on his admission, the laws of the prison in regard to escapes, or attempts, and as to rebellion or disorderly conduct. 11th. To be present at least three times each week in the dining hall at breakfast and dinner of the con- victs, and at the distribution of supper rations. To superin- tend the convicts at divine service ; and to pass through the prison at night to satisfy himself that all is safe, and the guard for the night properly set. § IG. The deputy-warden shall be the principal assistant and representative of the warden in his absence, not exceed- ing ttvo days : ai d further, 1st. To be present always at the opening and close of the prison, and at all usual times and religious services ; and at j»U times in the absence of the warden, night or day, for a longer or shorter period. 2nd. To have a constant care and superintendence under the warden, of the internal affairs of the prison ; to see that the subordinate officers perform their duties, and that order and cleanliness are maintained ; also, to enforce and maintain the police and discipline, rules and regulations of the institution. hi i I/; m !■;* = S 7i V : 1 >l; m.M wm 630 l&tnlttnUuvs, I: Hi ,'t * ■^\>: Mi. ■''■If' 5 ■!.,; ;#^ ;-; : / ■"■«; ; ;■ :'<■ ; yri 3rd. To visit frequently (luring the day the shops, janls cells, and other apartments ; to see that the overseers keoi) their men diligently employed ; and that the guard are vigilant and active, reporting to the warden directly aiKl promptly any neglect of duty, impropriety or misconduct of any officer. 4th. To attend to the clothing of the convicts to see their rations properly cooked and served ; and morning and night ascertain whether any convict is missing before he dismisses the officers, or gives the safety signal. § 17. The duties of chaplains shall be each— 1st, to devote his whole time to the religious instruction and moral im. provement of the prisoners ; 2nd — to maintain public rclitrioug services morning and evening ; to celebrate divine service tivice every Sunday, and have the care of a Sabbath school for the religious instruction of convicts ; 3rd — to sec that every convict under his charge is furnished with a IMblo' 4th — to visit and converse with the convicts at all reasonable times in the cells, or in his private room, or in the hospital and administer to them such instructions as may be calculated to promote their spiritual welfare, moral rcforuiation and due subordination ; 5th — to guard against encouraging the con- victs making unnecessary complaints ; Gth — to take cliarjie of the library, and select proper books ; 7th — to visit the sick daily ; 8th — to report annually to the inspectors, or oftener ■when required, the fruits of his labours ; 9th — to keep a register containing the history of each convict under his charge, the extent of his education, his habits and di^po-sition and the crime of which he was convicted, &c. § 18. The duty of the pliysician shall be Ist, to attend daily at the penitentiary at a stated hour, and in case of emergency as often as may bo necessary ; 2nd — to keep a register of the sick, and their diseases : also a prescription book, and a register of deceased convicts, stating their name?. ages, time and cause of death, &c. 3rd — to exercise a genera! surveillance over the cleanliness and ventilation of the pri.■•: 1 s r'i;U 632 ^tnittntiuvn* 1 iffllV. f ii -J - j« lit I ^'ijl § 27. The warden and clerk to give security : also the store-keeper, and clerk of the kitchen ; and shall also take and subscribe the oath of office prescribed. § ii8. Inspectors authorised to employ an architect and master-builder. § 2!^ Plans to be prepared by the inspectors for dwelling-houseg of the officers, and when completed the officers to reside therein, and the rent deducted from their salaries. § 30 Three persons to be appointed as a board of visitors by the Governor, who shall have admission at any time during busi- ness hours one day each week, to see that discipline is main- tained and humanely administered : and said visitors, or any two of them, shall be at liberty to speak to any of the con- victs : and in the event of their observing any irregularity or injustice prejudicial to the higher objects of the institu- tion, they shall, in their discretion, represent the same to the warden, or the inspectors, or to the provincial secretary : and the visitors shall have the power of granting orclors for the admission of persons to view the penitentiary. § ;U. Ex- penses of the penitentiary to be paid out of the puljlic reve- nue. § 32. Provisions therefor to be supplied by contract. § 33. Any controversy with the warden, on account of any claim or demand, may be referred to arbitration. § 34. Books of account, registers, letters, &c., relating to the affairs of the penitentiary, to be public property. § 35. No raft craft, boat, or vessel of any description, shall be allowed to moor or anchor within three hundred feet of the shore or wharf bounding the lands of the penitentiary, without per- mission of the warden, under a penalty of j£o, recoverable before a justice of the peace, and levied by distress and sale of the oftender's goods, and in default of payment, with the costs thereon, or of sufficient distress, the ofl'cndor shall be imprisoned, at the discretion of such justice, for any pcrioJ not exceeding two calendar months. § 5. No spirituous or fermented liquors shall be sold within the penitentiary, nor brought in for the use of any officer except the warden ; ami any person giving any spirituous or fermented liquors, tobacco, snuff, or cigars, to any convict, or conveying the same, shall forfeit jGIO to the warden, for the use of the pri- 1 son, to be recovered in any court of competent jurisdiction, j § 37. No person shall, without the consent of the warden, bri into or convey out of the penitentiary any letter, or other! article, to or from a convict ; nor shall any officer or other j person employed therein write any letter on behalf of a convict. Whosoever shall violate either of these provisiongl shall be deemed guilty of a misdemeanor^ and liable to finej and imprisonment. § 38. The following persons shall have] |VS» ^tnit^nrnvm* 683 irity: also the jhall also take ti8. Inspectors -builder. §2!). dwelling-houses icers to reside salaries. § 30. ' visitors by the irac during busi- .sciplinc is raain- i visitors, or any any of tbe con- any irregularity its of the institu- it the same to the al secretary : and ing ordertj for the tiary. § -'l- Ex- ,f the pulAic reve- plied by contract. an account of any arbitration. § 34. lating to the affairs y. § 35. ^0 raft, shall be al\o\Yedto ;t of the shore or itiary, without per- of £5, recoverable ,y distress and salo payment, with the i offender shall be ,icc, for any period |5. No spirituous or ]ic penitentiary, nor jpt the warden; and fermented liquors, It, or conveying the ,r the use of the pri- , .potent jurisdiction. ,of the warden, bring any letter, or other any officer or other r on behalf of any r of these provisions \r and liable to fine' persons shall have! authority to visit the penitentiary at their pleasure, tI*. : the Governor, the members of the Executive Council, the mem- bers of the legislature, the judges of the several courts, and Ouecn's counsel ; but no other person, except by permission of the warden or visitors. § 89. TJpon the death of any convict, it shall be the duty of the inspectors, warden, chap- lains physician, or deputy-warden, if they or any of them shall have reason to believe that death arose from any other than ordinary sickness, to call upon the coroner to hold an inquest in the prison ; and it shall bo the duty of the warden to cause the body of any convict dying in the penitentiary to be decently interred, unless the body be previously claimed and taken away by friends or relatives, (a) § 40. No punish- ments or privations shall be awarded except by the warden, or other officer acting for the time in his room. A book of record shall bo kept of complaints against convicts, the pun- ishment awarded, the date of infliction, with the signature of tlie officer making the complaint, and of the officer who inflicted the sentence, and no punishment shall bo inflicted until the day after the offence : corporal punishment to be inflicted in extreme cases only, and not more than 75 lashes for any one offence, and not until the physician shall certify 113 to the bodily fitness of the convict ; nor shall any such infliction he carried out except in the presence of the warden and physician, nor in any case upon any female convict. : 41, Inspectors to draw up a form of questions to be put to each convict on his discharge. § 42. No convict to be dis- charged on a iSundaj/, but on the day previous, when the sentence expires on that day ; nor if such convict be labour- \x[rr under any grievous illness, unless at the request of such convict : and each convict, on his discharge, to be furnished with necessary clothing, and a sum not exceeding £5, as the warden may deem proper. § 43. No prisoner shall be com- pelled to leave during tlie winter months of November, De- cember, January, February and March, but shall be allowed to remain, under the same discipline and control, until the first day of April. § 44. The female prisoners to be kept separate and secluded from the males, and under the charge of the matron and assistant mr^tron, subject to the rules and regulations of the prison, as far as applicable. § 45. Inspec- tors may prepare a separate system of discipline for the employment of military convicts. § 4t). Insane convicts to be removed to the tsylum at Toronto, and in case of their recovery to be remanded to the penitentiary for the romain- iifri " r rM E?!!,; 80 (a) See 20 V., c. 28, ^ 80, as to bodies uaolaimed. 634 Vrtfttts* m ii?ii ■ 1 : 1 i' " S j8 r 1 ■i'-' .' ^; t (; ! ' '' -vM r' :;. r '"i j|i 1 ■ '>J !' ■ ., i r li^'V •' i 'ft ■ ' ' -1 ^ ( 1 vl t '/^ • -■'• '-^t '^Sf der of the term. § 47. This act to remain in forco thref years, and from thenoe to the end of the next sossjon of parliament. It was continued by the 20 V. c. IG., to the 1st January 1858, and to the end of the next session afterwards. By 20 v., c. 28, § 14, the Governor is authorised tn appoint five fit persons to bo inspectors of all public asylumj hospitals, common gaols, and other prisons in this province § 16. Who shall have and perform all the powers and duties of inspectors of the provincial penitentiary, under the act relating thereto. § 17. And from and immediately after the first appointment of inspectors under this act, the powers and duties of inspectoia under the said act relating to the peni- tentiary shall cease. PERJURY. Perjury, (from the latin, perfurhuv) is the crime of wiJhi false swearing to any matter of fact material to tiie Issue or point in question, when a lawful oath is administered to tho party in some judicial proceeding. — tilyfst. 174; I Ilmn. ,' 69, § 1 : 1 T. li. 69. And it is an ofl'encc at common law. Subornation of perjury, is the offence of ])rocurincT anotho;' to take such a false oath as constitutes perjury in the princi- pal, and is an offence under various statutes. It has been settled that justices of the peace have no juris- diction over perjury at common law. — 2 Ilaiv. c. S,\?i:< Salk. 406 ; 2 iStm. 1088. But under the statute of FAizakth, they have ; this statute, however, only relates to the crime of sttbornation, and from the difficulty attending prosecutions under it, is now seldom resorted to. 1. Perjury at Common Laxo. The perjury must be wilful, that is, the false oath must h taken deliberately and advisedly ; for, if it originated nior from tho weakness than the perverscncss of the party ; as, if it be occasioned by surprise or inadvertency, or a mistake of the true meaning of the question ; it will not then amount t > voluntary and corrupt perjury. — 1 llau\ 69, § '1. It has bfor, said, that no oath shall amount to perjury, unless tho fic: deposed to be sworn absolutely and directly ; but this doctrine is now exploded, and tho crime of perjury, it id ai^'recd, may bo committed by a man who swears that he believes that to j bo true which ho must know to bo false. — /?. v. Pi-.dkiu Leach, 237; Millers case, 3 Wils. 4ii7 ; 2 Bl. Rep. 811. Tlie j oath must be false ; upon which head it has been observed | that it is not material whether the fiict which is sworn to b^^ ]|trfttvs»* 635 in forco thref next Bcsaion of the Ist Janunry, rvrarda. s authorised to I public a3yluni3. in tliis province. )0wcr8 and dutiea •, under the act lediately after the it, the powers and ating to tho peni- ho crime of wilful rial to the issue or dministercd to tho sf. 174; lllaw. o. at common law. ■ ])rocurintT another rjury in tho princi- tcs. teace have no juri?- 2 Haiv. c. 8, $oV, tatutc of FAizakth, ates to the crime of nding prosccntiom false oath must h it originated niop of the party ; as, i! :icv, or a mistake of not then amount i^ 69, § -. It has boor. jury, unless the fac; ll^ ; hut this doctrine •y, it iri agreed, may It he fteZici't'S tliatto ,e.— ./?. v. P<:cZ/e//,l .Bl.Ui'P-^^^- M t hasbcenobscvvea,] which is sNVorn to b? in itself true or false ; for however the thing sworn may hap- pen to prove agreeable to truth, yet if it were not known to Ig to, at the time by him who swears to it, his offence is altogether as great us if it had been false. This position cannot bo denied, as constituting perjury, viz. — when a wit- ness wilfully swears that he knows a thing to be true, vvhich at the sarao time ho knows nothing of ; and thus im- pudently endeavours to induce those before whom he swoara to proceed upon tho credit of a deposition which anj' stranger toproc jnight make as w ell as he. — 1 Haw. c. 69, § 5 per Lawrence, J. t5 T. B' 637; R. v. Echvards, 2 Buss. 518, note (e.) ill fake oaths taken before those who arc in any ways in- trusted with tho administration of justice, in relation to any matter legally pending before them, are properly perjuries. Therefore all persons are indictable who wilfully forswear themselves in any judicial proceeding, depending before a court of law or equity, or any other court, Avhether the pro- ceedin'^s therein bo recorded or not ; where an affidavit is falsely made of any matters material in a cause, the party inakiu*' it is indictable for perjury, although the affidavit is never used to found any subsequent proceedings upon. — B. v. White, 1 ^1/. 271, B. V. Mailq/, %. J- M. 94; 1 0. cf P. •\')8; and so is a false oath before a justice of the pcrce, in mv proceeding witliin tho jurisdiction of the justice, in which he is authorised by law to administer an oath. — 1 Haw. c. ti9. § 3, or before a commissioner of the court of K. B., duly authorised; but in all private transactions between man and man no oath whatsoever, however false it may be, is punish- able as perjury in a criminal prosecution ; such as a false uath taken by one ujjon making a bargain, that the thing told is his own. Xeitlier is the breach of a promissory oath within the legal definition of perjury. Therefore, no public officer who neglects to perform the duties of his office, which he has previously sworn faitlifully to discharge (however pun- ishable he may be for a misdemeanor, and aggravated as his offence may bo by the violation of his oath) is indictable for pprjury, — 2 Haw. r. 09, § o. Neither can a juror, who gives a verdict contrary to evidence, be prosecuted for perjury. — 1 llaw. c. 69, § 0. The oath must be taken before some mrt or person legally authorised to administer an oath ; for no other whatsoever, which is taken before persons not lecally authorised, or competent to administer an oath, can amount to perjury in the eye of tho law. — 1 Haw. c. 69, § 4. The thing sworn must bo material to the point in question ; for if it be wholly foreign from the purpose, or altogether immaterial, not t«nding to aggravate or extenuate the dam- -II" I Ui m mM 6S6 Jjerfttrw* ages, nor likely to induce the jury to give a readier credit to the suhstantial part of the evidence, it cannot then amount to perjury ; because it is in such case, merely idle and insig. nificant ; as if, upon a trial, in which the question was ■whether A. was compos or not, a witness unnecessarily and impertinently deov.ibes a journey which he took to seethe party, and happens to swear falsely in relation to some of the circumstances of the journey. — ] Jfaw. o. 69, § 8. But if the false oath has any tendency to prove or disprove the matter in issue, liowever circumstjtntially ; so as if the partv wilfully mistakes the colour of a ma.i's coat, or speaks faiselv to the credit of another witness, it will in like manner ''»»'ount to perjury — Bex. v. Grid>e, 12 Mod. 142 ; R. v. Museot 10 Mod. 195. With respect to subornation of perjury if the person incited to take a false oath do not actuallvtake it, the person by whom he was so incited is not gui'lty of gubornation of perjuri/ ; but lie is, nevertheless, liable to be punished as for a gross misdemeanor, in attempting t(. pervert the course of justice. — 1 Hair, c 69, § 10, 2. ('/ the Offence by Statute. By 5 Eliz., c. 9 (made porpetuul by 29 Eliz.. c. 5, § i' and 21 Jac. 1, c. 28, § 8), it is enacted by § H, that even person who shall unlawfully and corruptly procure any mf. ness to commit any wilful and corrupt perjury, in any uiatter or cause depending in suit and variance, shall forfeit ^£40: or (by § 4) if he has not goods to that amount, shall suffer imprisonment for half a yctr, and stand upon the 'piihni far one hour, in some market town next adjoining to the plact where the offence was coumiitted. By § o, no person si. convicted can afterwards bo received as a witness iu an court of record, until the judgment be reversed. Bvjj, any person either by subornation, unlawful procuroineiJi, sinister pergv.asion, or by means of any others, or bj iuj o,wr ct, consent or agreement, committing wilful ;nul corruiji peij^'ry, shall, upon conviction, forfeit £20, and be imprisoncj j six months, and his oath not al"terwards received in anv court, until judgment bo re-\'rso(l ; or if the ofteniler lia.« iiJ: i goods, shall be set in the pillory, and hiive botli hisoari nailed, and be discredited and disabled for ever to bt| sworn in any court of record, until judgment pliall I "versed. By § 9, the judges of any court where tlieptrl jiiry is coramittetl, and the justice of assize and gaol delivery, and the justices of the pence, at their quarter sessions, mayl enquire of, hoar and determine all oft'encea against the act And by § 13, tho act is not to reitrain the authority uf surl mvintfB!. Mt readier credit to t then amount to ' idle and insiw- le question was, nnecessarily and J took to see the ,tion to Kome of (,'.69, §8. Bm e ov disprove the so as if the party ;, or speaks falsely [ce manner "Tinount ; R. V. Muicol on of perjury, if > not actually take (1 is not guilty of rtheless, liable to in attempting tt 60, § 10. Uti' 2i> Eliz.. f. 6, § 'L [ by § •^•. that every Iv procure any vrit- rjui'Vi i" ^''y "^'^^^^'' shall forfeit £40; iinouut, shiiU suffer upon the ■pillorii for Mulng to the y.laci § ;'), no person s^ iia a witness iuaiy reversed. By s J, awful procurcuiew, others, or h) h jf wilful aiul coiTupi iU, and he iuipris-onti (U rocoivod in any the ofttMnlcr lia? iiu; i have both hisoarj] hied for ever to btl judj^meut pluill m court where thepir- i'/e and gaol deliverj,! quarter sessions, ffiay| ences against the act. the authority of smjl other judge having absolute power to punish perjurj before the making the statute, so that he set not upon the offender less punishment than is contained in the act. The above statute of Elizabeth did not alter the natiure pf the offence at common law, but merely enlarged the punish- ment. It is, however, seldom resorted to in the present day, on account of the difficulty of convicting under it ; for, in the first place it has been held not to apply to any case 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 the proof of what was in issue. — 3 Salk. 270. Nor can a witness who gives false evidence for the crown be indicted under it ; for which a reason is given in the report that does not appear to be a very sound one — namely, because an indictment being the suit of the king, he cannot punish his own witness, who swears for him. — Price^s case, Cro. Jac. 120. The statute also extends to no other perjury than that of a witness ; therfore, perjury committed in an answer to a hill in chancery, or in swearing the peace against another, unnot be prosecuted under the statute. — 1 Hew., c. 69, § 20. A false affidavit has been held not to be within the statute. 1 Roll 79 ; 2 Roll, ab, 77 ; 3 Keb. 345 ; 3 Salk, 269. But this appears to be too general a proposition ; for if the affi- davit be of a nature that either of the parties in variance be "rieved, hindered or molested in respect of their cause, by reason of the perjury, the offence then seems to be within the meaning as well as within the letter of the statute. — 1 Haw., c. 69 § 21. 3. Of other Statutes relating to the offence. By the 23 G. II., c. 11, which professes to be passed for tlie laudable purpose of facilitating prosecutions for perjury, it is enacted by ^ 3, that any judge of Rssi/e or nisi prius, jr general gaol delivery, while the court " :>, fitting, or within '24 hours afterwards, may direct any person (examined as a witness upon any trial before him) to be prosecuted for the said offence 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 subjected to any fees of court, &c. By 7 & 8 W. III., c, 34 ; 8 G. I., c. 46 ; and 22 G. 11., c. 46, the false affirmation or d'^claration of any of the people called Quakers, is declared to incur the penalties of perjury : and fo by several provincial statutes. — ^49 G, HI., c. .6; *lOa.IV.,c: 1, &c.; 12 V., c. 10. By 12 Q. I., c. 29, § 4, if any pernou convictod of pcr- i: 638 ]9etfttrs« jury, forgery, or common barratry, shall practise as an attor- ney, solicitor or agent, the judges of the court shall examine the matter in a summary way, in open court, and may sentence the offender to be transported for seven years, 4. Of the Indictment. An indictment for perjury at common law, cannot be pre- ferred at the quarter sessions ; for, by the common law, the sessions have no 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, they are of course still less in use at the sessions. Besides the proceedings by indictment, the court ^^ vrhich any glaring offence of perjury is commiiteil, has alao the power to punish the offender in a summary way, as for a contempt. o. Of the Puniahment. Perjury is punishable at common law with fine, imprison- ment and pillory {a), at the discretion of the court ; ami b; statute 2 G. II., c. 25, § 2 (made perpetual by G. II., c. 18> the judge may order the party to bo transported, or > „ imprisoned and kept to hard labour in the house of eo.;. tion, for a term not exceeding seven years. Tho false idllr- mation of a, Quaker is punishable in the same manner. —2: G. IT., c. 46, § 30 ; and of other sectariai.c, such as Mcnon ists, Tunkers, &c., by the *49 G. III., c. 6 ; *10 G. IV.c.l. Subornation of perjury is punishable by £40 fine, in months' imprisonment, and the pillory. — 5 Eliz., c. 9. Indictment for Perjury — 18 V., c. 92. County of \ The jurors for our Lady the Q,ucen upon ilie:r to wit : j oath present that heretofore to wr at the assizes holderi for iIk; county of , on the day of , in the year ol our Lord one thousand eight Iiundred and before , one of the justices of our Lady tlic (iiieen, u ciTtain isjue between one E. F., and one G. II. in a certain aciioii ii covenant was tried, upon which trial A. B. appeared as a wit- ness for and on behalf of tlie said E. F., and was llion an! there duly sworn before the said , and did ilicn and tlieri upon his oath aforesaid falsely, wilfully, and corruptly depose and swear in substance ;uid to the effect followinjr, that he saw the said (i. H. dulv exof^ute the detHJ on which the said aciijii was brnryht, whicli fact was material to the said issu", vvherwj (a) Pillory nboli-ibod by 4 & 6 V, e. 24, { 81. JS^f^puit nnXt Stttgctj?* 639 liise as an attor- t shall examine jourt, and may 5ven years. ', cannot be prc- sommon law, the thougli it seems Ulizabeth, c. 9.— under the statute immon law, and above, they are the court .ib >mmitt'''i, \ui8 aUo nary way, as for a ith fine, imprison- the covirt ; and by lbyOG.ll.,c18' nsported, or > '■>• e llOUSe of CO.:,;. «<, Thfi false iiffir- same manuor.— 2'. V -• snch as Menou- 6;nOG.IV.e.l. by £10 fuio, s'li c. 02. Ihe aueenuponlhe.t Itofore to w!t al ib.e lie day of , m (t hundred and the (lueen. a certain lin a corlaln ac lion of k appeared as a wii- and was then mi tlid thou and there [m\ corruptly depose ollowinjT, thulbesuw which the said ac'.i r, 10 said issu", wherwi 24, ? 31. in truth the said A. B. did not see the G. H. execute the said jged, and the said deed was not executed by the said G. H., and the said A, B. did thereby commit wilful and corrupt perjury. Indictment for Subornation of Perjury — 18 V.^c. 92. County of } Same as last form, to the end, and then proceed : to wit : ) And the jurors further present that before the committing of the said offence by the said A. B. to wit, on ,},(, day of , in the year of our Lord one thousand eight hundred and , C. D., unlawfully, wilfully and corruptly did cause and procure the said A. 13. to do and commit the (tnid ofTencc in me.mer and form aforcsaM. PHYSIC AND SURGERY. *By 8. G. IV., 0. 3, it is enacted, that the practice of physic, surgery or midAvifery, for hire, gain or hope of reward, bv any person not duly licensed, or not being actually em- ployed as a physician or surgeon in his Majesty's naval or military service, shall be a mif^demeanor ; 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 bo commenced after one year from the oftence committed ; and no person con- victed shall bo imprisoned for more than six months, or fined above £25. Indictment for practisiny without being duly qualified. County of ) The jurors for our lady the Clueen, upon their to wit : ) t>ath present, that A. A., late of the tovvn- jjiip of 1 in the coualy of , being a person of a wicked mind and dispos.tion, unlawfully, wickedly, and injuriously mindin}^ and intending lo impose upon and deceive divers liej:;e subjects of our lady the tiueen, under the false fflour and pretence that ho tlie said A. A. was well skilled in lilt' art, callmsT, profession and j)ractiie of physic, surgery and midwifery, and tlmt he was of sutlicinit knowledge and ability to undertake and practise the said profession or callin'r, and 111 rxocule and }»erform the duties of sucli art, protession and calling ; and also unlawfully, wickedly and injuriously, coinc about, and causing and j)rocuring himself, the said A. A. lobi-iMijjaged, retained and employed, by divtMS liege subjects c: our said lady the tlneen, in altenipling to heal them of i vers maladies, sores and diseases, wherewith the said liege fubjects were affected, and in the delivery of pregnant women, for large sumrf of money to be paid lo him the said A. A. for hicn his protended skill ia the said ari, practice, profession or r.\\\\xi^ of a physican, surgeon and midwife, on the first day of pBta ^'i3i TImI ■■111 ■ VP . \'V 1 ■ iW- •*•■:■ '■ >. : ■ • i ! ,' . ' - m 'h :*' l^*l!W wm 040 Sfraci^* May in th« year o( the reign of our Rovereign lady \\^, toria, by the grace of God, of the united kingdom of Great Britain and Ireland, Queen, defender of the faith, with force and arms, at the township of aforesaid, in the county afore- said, unlawfully, wickedly and injuriously, did set up g^^■^A 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 aforesaid, in the county aforesaid, for gain, hire and hope of reward, he the said A. A. then and there not not being a member of the medi- cal board of that part of this province lormerly the province of tipper Canada, and not being licensed by any governor lieutenant-governor, or person administering the govermeni therein, to practise physic, surgery or midwifery, in the same and not being actually employed as a physician, or surgeon jii her Majesty's naval or military service, contrary to the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peacp of our said lady the Clueen, her crown and dignity. And [\\p jurors aforesaid, do further present, that the said A. A. afier. wards, to .vit, on the first day of July, in the year of tlie reign aforesaid, with force and arms, at the township aforesaid, in the county aforesaid, unlawfully, wickedly and injuriously did set up and practise the art, profession and caljincr, of', physic, an and surgeon, and from the said first day of July, in I'le year afoiesaid, to the first day of March, in the year of •he reign aforesaid, did practise physic and surgery, for hire, gain and hope of reward, he the said A. A. then and there noi being a member of such medical board as aforesaid, and not being licensed to practise physic or surgery in that partof tjn, province formerly Upper Canada aforesaid, and not beinj actually employed as a physician or surgeon in her Majestv's military or naval service, contrary to the form of tho statute in such case made and provided, to the evil and perniciom example of all others in the like case offending, and afjains' the peace of our snifi lady theQ,ueen, her crown and dipnitv. PILLORY. c. 24, § 31, the punishment of ih 3y the 4 & 5 Vic, pillory is abolished. PIRACY. Wliat acts amount to Piracy. When subjects of the same state commit robbery upon eacii| other upon tho high seas, such acts of violence and depre- dation amount to piracy. And the same, if the subjects of I different states, connected by ties of amity and friendship, com- 1 mit robbery upon one another. — 4 In»t. 154. But where stm I ilftaca?. 641 eign lady Vic- igdom of Great iilh, with force ihe county afore- did set up and of a physician. Lo hath practised hip aforesaid, in of reward, he tlio mber of the medl- ly the province of y any governor, g the govermeni fery, in the same, ;ian, or surgeon in rary to the form of to the evil example against the peaco dignity. And the ; said A. A. after- \ie, year of the. township aforesaid. ,ly and injuriously, n and calling, of s first day of July, in 1, in the year of nd surgery, for hue, then and there r.oi , aforesaid, and noi •y in that part of ihis aid, and not beinj on in her Majesiy'^ [orm of the statute ir, evil and perniciouj lending, and again?' crown and riignitv. punishment of lu« ' iracy. lit robbery upon each ■ violence anddcpre-l nc, if the Bubjects of yandfriend3hir,coni- 164. But v-hcr« 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 w authority of any foreign prince or state, this also can- not be considered piracy. Thus, even a capture by authority of the marauding states of Algiers, Tunis, or Tripoli, cannot be treated as piracy. — Grot. 2, c. 18, § 2 ; Sir L. Jenky 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 Wm. III., c. 7, (which was levelled against commissions granted by James II. after his abdication), it is enacted that if any natural-born subjects or denizens of this kingdom shall commit any piracy or rob- bery, or any act of hostility against others of his Majesty's subjects or states, on pretence of authority from any person whatsoever, the offenders shall be deemed to be pirates^ felons and robbers ; and being convicted under that act, or the 28 Hen. VIII., c. 15, shall suffer capital punishment. In addition to this statute, the 18 Geo. II., c. 30, enacts that all natural-born subjects or denizens, who during any war shall commit any hostility upon the sea, or in any haven, river, creek or place, where the admiral has jurisdic- tion, against 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 aid or comfort to his Majes- ty's enemies upon the sea, or where the admiralty has juris- diction, may be tried as pirates, felons and robbers, in the court of admiralty, on shipboard, or on land ; and being convicted, shall suffer death, &c., as under the last statute. By § of the above statute of 11 & 12 Wm. III., c. 7, if any commander or master of any ship, or any seaman or niarinor shall, in any place where the admiral has jurisdic- tion, betray his trust, and turn pirate, enemy or rebel, and piratically and feicniously run away with his or their ship, or any barge, boat, ordnance, ammunition, goods or merchan- dize ; or yield them up voluntarily to any pirate ; or shall bring any seducing message from any pirate, enemy or rebel ; or consult, con?binc, or confederate with, or attempt or en- deavour to corrupt any commander, master, oflScer or mari- ner, to yield up or run away with any ship, goods or mer- chandize, or to turn pirate ; or if any person shall lay violent ids on his commander, whcrebj' to hinder him from fight- ling in defence of his ship and goods; or shall confine his [master ; or make, or endeavour to make, a revolt in the ship, he shall be adjudged, deemed, and taken to be a pirate, IfeloQ and robber, and being convicted, shall suffer accordingly. 81 fl3: ',m'* 0' r P'U i >l G42 mtutp. I' '•n 'I '. m'.'\i i/.S^ By 8 (Ico. I., c. 24, § 1, (mado perpetual by 2 Geo. \l c. 28, § 7^, if any commander or master of any ship, or any other person, shall anywise trade with any pirate, by truck barter, exchange, or in any other manner ; or shall furnisli any pirate with any supplies of any kind ; or shall fit o^ any vessel to trade with, or shall supply or correspond witli any pirate, every such offender shall be deemed and adjudu. ed guilty of piracy, and shall suffer death. " Of Accessories. Piracy being no felony by the common law, nor nude so generally by any statute, the accessories to the offence wcip only triable by civil laAV, if their offence was conmiitted on the sea ; but if on the land, they were not triable at all till the 11 .^ 12 Win. III., c. 7. By § 10 of this statute, iti< enacted, that every person who shall knowingly or willjni.iy set forth any pirate, or aid and assist in any piracy, he sbJi be deemed an accessory. And after any piracy yhall Ijf ' committed, every person wlio shall receive, entertain or con- ceal any such pirat(!, shall likewise be deemed an acuessorv And all such accessories sliall be tried after thecomvej,. the cumiiiou law, accor be donv fei".i>i)nsl// and piraticaJh/. it turn oit ihat the gutx's were t' ivcn any wliere within tjiel iiiiily otV: county, the admiralty can have no Jurisdiction tJ ilnpiire ito the otfenee. So, on the othei- hand, if'^Wii were tah-n .it sea :ind .-ifterwards l.ronght oji shore, tliool-l feniler c.mnot be indicted as for larceny in that ootuitv iiKol which tl "V were carried, be- Ifi'ti. VI 11., e. 1.'), § i, ;ill treasons, i'elouics. r l)eri'.'S, n.urders and confi'deracie^. eoiiiniitted in or ii|ioiit;. sea, or in any Intven. ri\<'r, ere '. <.r phu^ , where tilery ral h;is, |ire!' lids to have po^\ r, authority or jurisdictiiij phall .'»«■ I iied by couiiiiiss'otiers "I "j/> r and ttrniinii\\\\ shires ■'.'. 1 places as shall be bMiteij by the king's ci.iuuiiji Hiou, in e same manner a-i if m-h offeiu-es had been co )9oifiion* 643 avo no jurisdiclioiitl otlKT I'liiixV ifM Axt on short', tlio of-l '' ill that coimiv iuw| luitted on the land ; and by § 3, the offender is excluded from the benefit of clergy. But notwithstanding this sta- tute, the admiralty can claim no jurisdiction where the haven, river or creek, is within the body of a county ; for in that case, the offence was always cognizable at common law : and all rivers are within the jurisdiction of the common law, until they flow past the furthest point of land next the sea. In order to spare the expense and delay of bringing offen- ders from remote places to bo tried in England, the 11 k 12 ^Ym. III., c. 7, § 1, provided that the courts of iidmiralty abroad might be authorised to try piracies, felonies iind rob- beries, upon the sea ; but as this act did not includ(> treason, misdemeanors and other offences, the 46 Geo. Hi., c. 54, enacts that all treasons, piracies, felonies, robberies, murders, conspiracies and other offences, of what nature or kind soever, committed upon the sea, or in any place where the iidmiial has jurisdiction, may be tried (according- to the course of the common law of this realm used for offences committed upon the land) in her INIujesty's colonics, under the great seal. And all persons convicted of sucli offence shall be liable to the same punishment as persons avouUI be if tried within this realm under the 28 lien. \III. rOISON. Sir W. Blackstone in his commentaries, 4th vol., page lUG, Yitli child I it operates so violently er in the person who gave 3 following provisions \?ith istering poison or causinir itention to commit murder, r death. ... » , ) abortion, it is then felony the court, by impriBonmem r life, or any term not less jr place of confinement not tiall use any strychnine or L any wilti animal, or place lied in food or otherwise, in Id by any such wild animal, if not forthwith paid upon exceeding three months, or 1 druggist, vender of me.li- ell or deliver any arsenic, )r other poison, mineral or commonly known a. deadly tsly or secretly admmis ere any person who shall not rtificate or note from some [priest or minister of religion td to such apothecary, Sc. fence, calling or pvofejon o under the penal y of 11". conviction, commitment H Lths, or until penalty ani § 3. Such penalties to be recoverable before any one jus- tice of the peace, on the oath of any one or more credible ^ritnesses other than the prosecutor : prosecution to be com- menced within six months ; and one moiety of the penalty to go to the prosecutor and the other to the public uses of the province. § 4 limits the operation of the act to Lower Canada. By 14 & 15 v., c. 61, § 5, the above act 12 V., c. 60, is amended by omitting the words " justice of the peace" in the second section, and the 4 § is repealed ; and the act as amended is to extend to Upper Canada as well as Lower Canada. See also ante " Cholorform" p. 140. POLICE VILLAGES. By the municipal act 12 V., c. 81, § 42, the municipal council of any county is authorised by by-law, upon the petition of any number of the inhabitants of any unincorpor- ated village or hamlet, situate in such county, or for the municipal councils of any two or more counties, upon any such petition from the inliabitats of any incorporated village or hamlet, situate partly within one of such counties, and partly within another or other of them, to define the limits ffithin which, in respect to such village or hamlet, there is, in the opinion of such municipal council or councils, a resi- dent population sufficient to make it expedient that the provisions of this act, for the regulation and police of unin- corporated villages should be applied to such village or hamlet, and every such by-law shall fix the place in such village or hamlet for holding the first election of police trus- tees, the person who shall preside thereat, and the hour of meeting. § 43. Until such village be incorporated it shall te lawful for the resident freeholders and householders, on the second monday in January next after three calendar months from the passing of such by-law, and annually on that day afterwards, to assemble at the time and place ap- pointed, and elect from among themselves three police trustees for such village, who, or any two of them by a memorandum in writing under their hands, to be filed with the township clerk, shall within a reasonable time after such I election nominate and appoint one of their number to be the specting trustee. § 44. The collector is required to deliver I to the person presiding at such meeting a copy of his roll, cor^iprising the names of the resident freeholders and house- holders of such village, and their assessment on the roll, and to verify the same by affidavit (or affirmation) endorsed m '■U^^ ■r't^' '■ii: ii I 1. ■-;.■■ : 1 , ■! ■1 , H ' v.: y;li ■iil'^il r;'i'n".i; ■'li :i.":S ! C46 ]|olfce TillUQtu* ppl^'' fe' 4 lf-i •f It thereon, to be sworn (or affirmed) before any jastice of the peace for the county ; and the persons whoso n .unes are entered on such roll, and are resident in the village at the time of such election shall bo entitled to vote thereat. But no person shall be elected a police trustee who has not been entered on the roll for rateable property to the value of £100 in his own right or in the right of his wife. § 45. Trustees of the preceding year or any two of them, may appoint a person to preside at the next annual meeting. § 46. In case of his absence (one hour) the majority of the meeting may appoint a person to preside, and the election is to pre- ceed. § 47. In case of vacancy among the police trus- tees the remaining trustees may appoint another in his place. § 48. Police trustees neglecting duties of office to forfeit 208., § 49, to bo sued for within ten days afterwards. § 50. All penalties incurred under the regulations of the police by the next succeeding section, to bo sued for by the inspecting trustee, or in his absence, or being the party complained against, by some other of hucIi trustees, before any one justice, having jurisdiction within five miles of the village, or else, before any other justice in such village, by information in a summary way, upon tlio oath of one or more witnesses. Penalties to be levied by distress and sale, and applied to the repairs and iraprovemontj of the streets and lanes of such village. § 51. Police trustees to enforce within the limits of such village the following regulations, viz. : I. J. Lathltr oil the roor to every chimney of h house, laor,. than one story in heipflu ; and another from the tjround to tlic roof, under the penalty of 5.s. for every neglect, and lOs. m week upon the proprietor. ti. Two hiicA'efs for water in case ol lire, to l)e ivopt by evcrv houseliolder, under penahy of .^s. for each. U. Oreiia ami Furnaa:s of any baker, hatter, brewer, iiianii- faeturer of |)()l and pearl ashes, or any other person, to L, ei)uiiecte)r lamp, not well enclosed in a lantern, or with a lii,'hk'ii pipe or ci<;ar, or carryinj,Mire not properly secured into such | barn, &c., penalty fjs. (or every offence. <>. Li>//tfitie pipe inserleii the slove and any naliy of l^)«- , , stable, with a /y W" em, orwilbalii?ltol ly secured inwsucli' or outhouse, cxccp'. in brick or stone chimney, or in n stove — penalty 5s. lor each olTcnce. 7. C'ari'1/intj five through any street, lane, yard, jj^arden or place, except in a copper, iron or tin vessel — penalty 2s. Od.. and for every subsequent offence, 5s. (S. PtiUiny hai/, sfrinr or foihlcr in any dwellinif-house, 5s. for tbc fi""'"^^ offence — lOs. per week until removed. y. (luvjjowder for sale to be kept in boxes of co[)per, tin or lend, under a penalty of 3()s. for first offence, and K)s. for every subsequent offence. 10. Selling (jnnpoxcdvr at night — penalty 4()s. first offence, (j()g, for every subsequent offence. 11. Depositing ashen or ciiif/ers (pot and pearl asbes excepted) ill anv wooden vessel, not lined with sbeel-iron, tin or copper ; iiir every offence, 5s. lil. Depositing (|nic.k or unslacked fiiitt in any building, in contact witb wood work — lor every offence 5.«., and lOs. per diem until removed. |;). Ijii//ili>ifjjiirs in any street, lane, or public place — petiHlty, ll. J-Jnrfiinj/ii ntar nrihtrc into any street, lane or public places — penalty, '2s. (id., and 5s. every week until ivnuived. POLICE OFFICE. By tbc Municipal Act, 12 V. c. 81, 5^ HO, it is enacted that tliere shall be in each iucorporateil town a police-office, at which it shall be the duty of the police inagi.strate, or the mayor, in case of his absence or sickness, to attend diiily, or ;it such times and for such periods as shall be necessary for tliL" disposl of business (excepting Sunday, Christmas-dtiy, flood Friday, or any day appointed by proclamation tor a public fast or thanksgiving) unless in case of urgent neces- sity; and it shall be lawful for any justice of the peace having jurisdiction within the town, at the request of the mayor, to sit for such mayor at such police-ollict'. § 7(b Such police tuagistrate to be appointed by the Crown during plea- sure ; and every such police magistrate to be er-officio a justice of the peace for the town, and for the county within or un the borders of which such town shall lie, and shall receive a salary of not less than iilOO per annum, payable quarterly, out of the municipal funds of such town. Such police magistrate not to be appointed until the corporation shall have communi- cated to the Governor-! leneral, through the Provincial Sec- rotary, that such officer was re({uired. § 71. Such police magistrate shall have the power of suspending from office any chief couHtablo or constable of the town for any perioil '■-i^} ill '-h. i '■<': HI ^il:tt ■'' *V' . ■!■ 1' M 1. ,. ^'l! ■■■.^i-i ■■;■■ J IMAGE EVALUATION TEST TARGET (MT-3) 1.0 MiJOi WIS I.I 1^ Ih |||22 2: 1^ 112.0 ii£ 1.25 IIM Ih Photograiiiic Sciences Corporation 2} WtST MAIN STRUT WitSTiR.N.Y. UStO (71«)I72-4S03 "*r o Wa ^' 648 Vout Office. HI' 1 1' in his discretion, immediately afterwards reporting the same with the cause thereof, if he deem such chief constable or con- stable deserving of dismissal for the cause of such suspension to the town council, who shall in their discretion dismiss such offioer, or restore him to office after the period of suspension shall have expired ; and during the period of such suspension such police magistrate may appoint a substitute. § 72. All oflFences against the by-laws of any town, and all penalties for refusal to accept or be sworn into ofiSce in such town, and all other ofifences, over which one or more justices of the peace have jurisdiction within such town, may be prosecuted and sued for, tried and recovered before the police maglstate of such town, either acting alone or assisted by one or more justices of the peace for such town, as the case may require- and such police magistrate shall be ex-officio a justice of the peace for such town. § 73. Clerks of the town councils to he cl .i ;' of the police offices, and receive the same emoluments as appertain to clerks of justices of the peace, unless by act of the town councils another officer be appointed. B J v., c. 178, § 28, a police magistrate is authorised to c' ^ wa-:,tever may be done by two justices. A similar pro- vision vi'nl be foimd in 16 V., c. 179, § 21. POSSE COMITATUS. The posse comitatus, or power of the county, includes the aid and attendance of every person above fifteen years of age under the degree of peer, except ecclesiastical persons, and such as labour under any infirmity. It may be raised by the sheriff, or justices of the peace, where a riot is committed, where a forcible entry is made, or where there is any force or rescue contrary to the commands of the king's writ, or in opposition to the execution of justice. Persons refusing to I assist in this service, when legally required, maybe fined and imprisoned. The statutes relating to the posse comitatus m the 17 R. II., c. 8 ; 13 Hen. I V. c. 7, and the 2 Hen. V, | c. 8 ; and see 2 Inst. 198 ; 3 Inst. 161. POST-OFFICE. By *3 W. IV., c. 4, which determines the number of cases | in which capital punishment shall be inflicted, it is enacted, that if any person shall rob any person carrying or convcy-L ing, or having charge of his Majesty's mail in any part ofl this province, of any letter or letters, packet or packets, bagl or mail of letters, every such offender being convicted thereotj shall suffer death as a felon. § 12. And accessories beforel the fact, shall also suffer death. Uout ^mtt. 649 )orting the same, conBtable or con- such suspension, 3tion dismiss such iod of suspension )f such suspension titute. § 72. All and all penalties in such town, and ,re justices of the may he prosecuted he police magistate ed by one or more ) case may require; cio a justice of the , tovrn councils to he le same emoluments peace, unless by act ppointed. istrate is authorised [ces. A similar pro- 21. CUS. county, includes the /e fifteen years of age iastical persons, and may be raised by the 3 a riot is committed, •re there is any force ithe king's writ, or iu Persons refusing to ired, maybe fined and [he posse comitatuim] ■•, and the 2 Hen. V., tes the number of cases Fnflicted, it is enacted, In carrying or convey, r's mail in any part of racket or packets, hag Kine convicted thereol Vnd accessories before By 13 & 14 v., c. 17, intituled, "An act to provide for th© transfer of the management of the inland posts to the pro- vincial government, and for the regulation of the said depart- ment," it is enacted by § 1, that this act shall come into force, at and from the time the royal assent thereto shall be proclaimed in this province, or at such subsequent time as by order of her Majesty in council shall be fixed. § 2. The inland posts and post communications in this province, so far as is consistent with the imperial acts now in force, shall be exclusively under provincial management and col rol ; and the reveniio arising therefrom shall form part of tae provin- cial revenue. § 3. All post offices, and postal divi»ions, gtations, districts and establishments, and all commissions or appointments of any oflBcers or persons employed shall con- tinue and remain, subject to the provisions hereinafter made, as well as all bonds and contracts by, with, or to any such officers, and contracts for conveyance of the mails, &c. § 4. Except the provincial postmaster-general, no officer appointed or continued under this act shall receive more than j£400 per annum (a) in salary or emoluments, and the provincial post- master-general's salary shall not exceed .£750 per annum. § 6. The provincial postmaster-general to be appointed by letters patent, and other officers by letter from the proper officer, communicating the Governor's pleasure ; and nothing in this act shall prevent the provincial postmaster from sitting and acting as a member of the Legislative Assembly. § G. All privileges, powers and authority now vested by any provincial set in her Majesty's deputy postmaster-general, with regard to services to be required from any railroad company, res- ixjcting the conveyance of the mail, &c., shall be vested in the provincial postmaster-general. § 7. Mails in future not to be carried across ferries gratis, but such service shall be fixed by contract, or arbitration. § 8. Provincial postage on letters and packets (not being newspapers or printed pamph- lets, magazines or books, entitled to pass at a lower rate) shall not exceed the rate of 3d. currency per half ounce for any distance within this province, any fraction of a half ounce being chargeable as a half ounce. No transit postage shall be charged on any letter or packet passing through thia province to any other colony in British North America, unless the sender choose to pre-pay it; nor on any letter Lr packet from any such colony if .pre-paid there. Two<- mne4 sterling the half ounce shall remain as the rate in m^ KS 'It'Mi'^* '■ISC', 'DM ■«! t«1 -J: fi iia 82 (p, secrete, delay or fully opened, kept. L or any post letter, n of the offender by 'aymcnt or tender ot having posscsssion up any post letter thereto, shall be a zle, secrete, destroy, or proceeding, news- pt, shall be a misdc- Ling or progress 01 c, animal or carnage ablichigbway, river, nnce, shall be amis- lagc or destroy any I mail carrier or any L letter bag or post Ikenness, negligence. punctual delivery oi I such mail, post letter bag or post letters shall be endangtrr- ed' or, contrary to this act or any regulation made under J, to collect, receive or deliver any letter or packet, or to neglect to use due care and diligence to convey the mail, post letter bag, or post letter, at the rate of speed appointed therefor bv the regulations then in force or the contract under which he acts. 6. It shall be a misdemeanor for any toll-gate keeper to refuse f)j neg\ect forthicith uj)on demand to allow any mail or any car- riaffe, horse or animal employed in conveying the same, to pass throu"'h such toll-gate, whether on the pretence of the nonptiy- rnent of any toll, or any other: provided that nothing herein shall ailect the right of any officer or person travelling with any mail, to pass toll free through any toll-gate ; but in any case where such officer or person would now pass toll free, any officer or ' erson travelling with a mail after the j)assing of this act, shall, in like manner, pass toll free, but not otherwise or elsewhere, unless it be otherwise ])rovided by competent authority : but in any case he shall not be detained on pretence of demanding such toll, but the same, if due and not paid, shall be recoverable in the usual course of law from the party liable. 1, Any wilful contravention of any regulation huvfuUy made under this act shall be a misdemeanor, if declared so by such regulation. 8. To solicit or endeavour to pro '.ure any person to commit any act hereby made or declared a felony or misdemeanor, shall be a misdemeanor ; and every such misdemeanor shall be pun- ishable by fine or imprisonment, or both, in the discretion of the court; and every principal in the second degree, and every accessory before or after the fact to arsy such felony as aforesaid, «hall be guilty of felony, and punishable as the ] rincipal in the first degree ; and every person who shall aid, abet, counsel, or procure the commission of any such misdemeanor as aforesaid, shall be guilty of misdemeanor, and punishable as a principal offender; and any imprisonment awarded under this act shall be in the penitentiary, if for a term of or exceeding two years : and if the imprisonment awarded bo for a less term, it may be with or without hard labour in the discretion of the court. 5 17. Offences under this act may be dealt with, indicted, I tried and punished, and charged to have been cornmittod in the locality where committed, or where the offender shall be Upprehcndcd, or bo in custody. § 18. In indictments, the property of such post letter, letter bag, post letter, packet, [chattel, money, or valuable security sent by post, shall be I in the provincial postmaster-general. §19. Certain hrovisions of the 10 & 11 V., c. 31, extended to officers of the Iprovincial post office. § 20. The provincial postmastcr- ; A^:-"^ I I.'-!! ) ! J-. m villi i^^;" -': ;'''^,J:i': If l^diiMi. ■• >^U .■;it; tl-:':. i ■Jl ■' 'ii' ^ :f '■ ■■ i. i' ■ 1 : ;J, ■■ ■■ (;' ; TJ 654 m»t ^mtt. general may compromise and compound any action, suit, or information commenced by his authority, for recovering any penalties under this act, on such terms and conditions as he shall think proper. § 21. All mere pecuniary penalties im- posed by this act, shall be recoverable with costs in any court having jurisdiction to the amount, and shall belong to the Crown, saving the power of the Governor in council to allow any part or the whole to the informer. But all such penalties shall be sued for within one year after being incurred ; and if the penalty do not exceed £10, it may be recovered before any one justice of the peace, in a summary manner, and if not paid may be levied by distress under warrant of such justice ; and if exceeding £10, the offender may be intllctcd for a misdemeanor (instead of being sued for the penalties), and if convicted, punished by fine, or imprisonment, or both in the discretion of the court. § 22. Penalties may be recovered on the oath of one credible witness. § 22. In any action against any postmaster, &c., a statement of the account of such postmaster, shewing the balance, and certified as correct by the accountant of the post ofiice, shall be evidence, and judgment shall be given for double the amount. § 24. Interpretation clause. By 14 & 15 v., c. 71, so much of the 13 & 14 V., c. IT, as may be inconsistent with this act is repealed. § 2. Pro- rides for the mode of advertising for tenders for mail service. § 3. Additional compensation to mail carriers limited. § 4. The lowest tender to be accepted. § 5. Abstracts of all the tenders to be recorded by the postmaster-general in a book. § 6. Any person employed in the post-oflSce depart- ment becoming interested in any mail contract or acting as agent for any contractor, shall be dismissed. § 7. Tenders I to be accompanied by a written guarantee. § 8. Contracts for less than £50 per annum may at the discretion of the postmaster be submitted to public competition, or concludel by private agreement. § 9. Contracts not to be made ivitii persons who have combined to keep back tenders. §10.[ Unclaimed letters to be advertised in a local newspaper. 11. The postmaster authorised to contract with any railroaJl company for conveying the mail either with or without! advertising. § 12. Annual reports to be made by the post-1 master-general to the Governor for the purpose of being laidl before parliament, of the finances of the department, and! other matters. § 13. Post routes not yielding one fourth m the expense of its establisment within three years shall M discontinued. § 14. Authority to establish branch post-officei in any city or place requiring such accommodation. § Vo\ Vofiit ^mtu 655 J action, suit, or ■ recoveiing any cov.tlitions as he ary penalties im- costs in any court all belong to tlie a council to alloijr all such penalties ng incurred; and e recovered before ry manner, and if • -warrant of such ir may be indicted ' for the penalties), risonment, or both, Penalties may he less. §22. In any ment of tbe account •e, and certified as le' shall be evidence, tiic amount. §24. ,c 13 & 14 v., c. IT, repealed. §2. Pro- dcrs for mail service, .rriers limited. § i 5. Abstracts of all itmaster-general in a he post-office depart- contract or acting as issed. §T. Tenders .tec. §8..ConM the discretion of the ictition, or conclude U not to be madcj^ith [back tenders. §w. t local newspaper. ^ .act with any railroat tbcr \vitb or without be made by tbe posV purpose of being W 1 the department, and! yielding one fourrtio 'i three years sbaUbi .lishbranchpost-officei, ccommodation. S W' Authority for establishing a penny pout delivery for letters in any city, and J penny for newspapers. § 16. Three in- spectors of post-oflRccs to be appointed and their duties defined. § 17. Insufficient stamps on letters to be disre- (tarded, and the full postage charged. § 18. No allowance to be made to any clerk or officer for extra services. § 19. Postmasters upon their appointment to give bond with ap- proved sccuriiy for the faithful discharge of their duties. § 20. Postmasters neglecting to render accounts and pay over the balance due at the end of every 'I I ].. ]9oi$t . gygi^ mails to bo deemed her Majesty's mails as rogurds the punishment of offences committed in respect thereof. § g Stealing, purloining, embezzling, or obtaining by false pre! tonces, or unlawfully making, forging, or counterfcitiii• Suck as regards the ;t tlicrcof. § 6. tng by false pre- ountcvfcitiii^ any .partmcnt, ov an; ^session any sucli use, sell, or olhor- sny, punisliablcby •iod not excecilbg bo mail contrac- contraband goods ;on. § ^^- ^'^ ^'^i' ad or bridge unless )ting cviiiting cou- ?sengerrt. 4th § of tbc post- . postmaster's salary iavf^ed to £^')*)<) pw j is repealed. §4, c'sscd to or scut bj itm-nt, sball be post- Y be directed by tk pcumcnts and pviuttd fcbief cbn-k aforesaid, 10 rcces?, free of posv io, during the vccesd by order ot cvtki| c 79 arc rcvicalod, , witbin this province, ation, sball be tvans- Lce in Canada, ov to Iny, or to France- *. 1\G Letters and otiet Vvtbe speaker or ckt LlativcAssembbsovw rnmcnt during tlie ed rec §T. roslmastct Ivhattime. § «• 1* lat such intervals us th Lg. Annual reports ly orders. POT AND PEARL ASHES. 657 By 18 v., c. 11, § 1, the former act 6 V., c. 6, is repealed. §2. Description of barrels in which only ashes shall bo inspected not to exceed 32 inches in length by 22 inches in diameter on either head, nor less than 30 inches in length by 20 inches in diameter on either head, and the chime thereof not to exceed one inch ; and every manufacturer shall be bound to mark in legible characters on the end of each barrel before each is filled the exact weight thereof. § 3. Licenses exist- in(T previous to the Ist of January, 1855, to be cancelled. §4, Boards of trade at Quebec, Montreal, Toronto aud Kingston and municipal authorities in other places to appoint aboard of examiners of applicants for the oflSce of inspec- tor. Board of examiners in Quebec and Montreal to con- sist of five persons, and other places three fit, proper, and skilful persons resident in the place or vicinity ; such exami- ners before acting to take an oath of office as prescribed in tiie act. § 5. The mayor of Quebec, Montreal, Toronto and Kingston for the time being, and chief municipal officer of any other place authorised to appoint an inspector or joint- inspector for the said cities and places. Inspectors to under- go examination before the board as to fitness, character, and capacity, and not to be appointed unless approved and recom- mended by such board ; nor in any place where shall be a board of trade, except on the requisition of such board. Inspectors before acting to furnish two sufficient sureties of £500 each, if for Montreal, and X250 each for other places. \ 6. Bond of suretyship to be kept at the office of the clerk of the corporation. § 7. Board of examiners authorised to require the attendance upon such examination of two or more skilled persons in the manufacture of ashes, who may, lathe presence of the board, question the applicant as to his knowledge in the matter. § 8. Persons appointed inspectors to take a certain oath of office prescribed in the act before acting. ^ 9. Present inspectors and assistants to retire on 1st of January, 1855. § 10. Mode of inspecting, classify- ing and marking ashes as Jirat sort, second sort, and third 1 00)^, and their qualities defined. Inspector to weigh each [barrel and mark on the branded head with black the weight thereof, including tare, and the weight of the tare under the same, and he shall brand the same in plain letters and figures on each barrel containing ashes of the first quality the words mii tort ', of the second quality the words second sort ; and of [tlie third quality the words third sort, together with the words pot ash, pearl ash, as the case may be, wich his own name [and the place of inspection ; he shall collect the crustings 83 !■;■■ •tk !• :\ 1 ■ \'i'*,' 'i;'i ill JSffllfe--*^ ^58 )9oi unn ns^tuvi mn'btu. (if any) of each separate lot, and deduct the value from tlio inspection charges to be paid by the pvoprietor of hucIi lot or deliver them to him. Ho shall mark tlio word unhrmd able No. 1, 2, 8, 4, 5, according to its strength, on cvciv barrel so adulterated with stone, sand, limo, salt, or any other improper Bubstancc, so as not to admit of its being classifidi •AH first, nccond, or third, and he shall iuso make uiul deliver a separate weigh-noteor bill of each quality whenever roquiicil by the owner or his agent. § 11. Inspectors (except in Montreal) to provide convenient premises for stora;To anil inspection, to keep the barrels in some dry place safe from weather and floods, and under a tight roof, and if in sliod, enclosed on every side ; and every inspector violating tliis provision shall forfeit and pay to the owner 10s. for cverv barrel not stored as aforesaid besides actual damages sus- tained by such owner. § 12. Inspector for Montreal to pro- vide stores and insure ashes against fire. § 13. Inspoctou to receive certain rates of remuneration fcr their services, § 14. Inspectors at Montreal and Quebec to appoint assist- ants and clerks ; assistants to give security. § 15. And k removed at pleasure. § 10. Vacancies at Montreal to k supplied by the mayor of the city. "§. 17. Any inspector cr assistant while in office directly or indirectly concerned in | the buying or selling of any pot or pearl ashes, or partici- pating in any transaction or profit arising therefrom, (furtlicri than the fees or emoluments under this act.) or who sliallf permit any cooper or other person by him employed to retain or keep any pot or pearl ashes, or who shall brand any band or barrels of ashes of any description or size other titan ijj prescribed in the act, or Avho shall date any weigh note wj bill of inspection dificrently from the time when the aslujj were actually inspected, or who shall deliver out of liijj possession any such note or bill of inspection without anjj date, or who shall not conform to the provisions of this act! shall, upon being legally convicted, for every such ofenceT incur a forfeiture and penalty of not exceeding £100, ami be for ever disqualified from exercising such office ; anil any inspector, or assistant, or clerk, or other persons wlia shall make or cause to be made any fraudulent bill of asht^ shall be guilty of felony, and shall, upon conviction, l confined at hard labour in the penitentiaiy for any term n( exceeding seven years. § 18. Any inspector, or his assistant, not being then en ployed on duty, refusing on application on lawful days, bd tween sunrise and sunset, to receive any ashes, or who slial neglect or delay to proceed in such examination and inspefl tion, for the space of two hours after such apphcation 0* ) valvic from ih ■tor of such lot. Q vrovd unhraml cvigth, on cvovy saU, ov any other ts being clat-sifiod lake siutl dcVivev a vhcncver rofiuivtil pectors (except in .8 for etoruf^caml ,vy place safe from )f, and if in f^lle^i^ ctov violating tVis ^•nev l^s. for o\evy ictual aamagcssus- for Montreal to pro .^ § 13. Inspector I'ftr tlioir servlcoN cc to nppoini assist- :ity. ^'^^- ''^'^^^'"' , at Montreal to V IT Any inspector or ire'ctly concerned ill uvl ashes, or partici- ^tlicrefroni,ifuvtli rt°-ict) or vlw im employed to rctml ihall brand any « or Pizc other tlmu' «,,y ^vcigb tioteorl when tlie asks U deliver out of \\^ Dot atiTi HS^tavl Mn^tn* C59 ICV time iispccti ion without any v^^^-^^:l:^:: lov every cxccedmj; kin 2 such other persons i:lO0, aiiJ oflice ; aw raud aulcnt bill of ank, upon conviction, l)i tiary for any term nol Int, not being then ej ^on on lawful day.,^ \ny ashes, or ^^^p«l Lamination and inspe r such apphcation rade to him shall, for oach ofTencc, forfoit jGr> to the use of the person so delayol. § 11). If any person shall counterfeit any of the aforesaid brand-marks of the inspector, or shall impress or brand the same, knowing the same to be counterfeit, on any barrel or barrels of pot or pearl ashes^ or any other mark or marks purporting to bo the mark or marks of the inspector, or of any manufacturer of pot and pearl ashes, either with the proper marking tools of such inspector or manufacturer, or with counterfeit representations thereof, or who shall empty any barrel or barrels of pot or pearl ashes, branded as afore- ga'iil by an inspector or manufacturer, in order to put therein other pot or pearl ashes for sale or exportation, without first cutting out the said brand-marks, or shall fraudulently pack therein any other substance than the pot or pearl ashes packed in the same by tho inspector or manufacturer : and ifanv person in tho employ of any inspector or manufacturer shall hire or loan out the marks of his employer to any person whatsoever, or shall connive at or be privy to any fraudulent evasion of the provisions of this act, such person or persons jliallfor every such offence, forfeit and incur a penalty of .^50. ^20. If any dispute shall arise between any inspector or assist- ant inspector and the proprietor of any pot or pearl ashes with legard to the f(uality thereof, then, upon application to any one of her majesty's justices of the peace for the district, such justice shall issue a summons to three persons of skill and integrity, one to be named by the inspector, another by tlie proprietor or possessor, and the third by the justice, requiring them to examine and inspect the same, and report tlieir opinion on the quality and condition thereof under jOith, (to be administered by such justice), and their dctcrmi- btion, (or that ofli majority,) shall be final, and the inspector ir his assistant shall brand each and every barrel of the quali- es directed by such determination, according to the provisions [this act; and if the opinipn of the inspector be confirmed, e reasonable costs of such re-examination, to be ascertained id awarded by such justice, shall be paid by the proprietor ir possessor of the ashes, if otherwise, by the inspector. 21. Nothing herein contained shall be construed to pre- jent any person from exporting pot and pearl ashes without ispection, provided that on one end of the barrel there shall neatly and legibly branded or marked the name and Idress of the manufacturer or packer, tho weight and tare the barrel, and the quality of ashes contained in it ; but ly person who shall export any pot or pearl ashes not so ked as aforesaid, or shall wilfully mark any such barrel Isely, shall thereby incur a penalty of <£5. ^ 22. All i^ f : mill mm m ^xm 'mim^ I& h lAiU i IfjfiiffJIl^^ 'If Mil Vi i/l,liL «,>fi; ]9ottn9 ]$reatt* fines, penalties and forfeitures imposed by this act, not exceeding j£10, (a) shall be recoverable by the inspectors their assistants, or any other person suing for the same in a summary way before any court of competent jurisdiction and shall, on failure of payment, be levied by execution, as in the case of debt : and one moiety of such fines, when recovered, shall (except when otherwise provided) be paid to the treasurer of the city or place where such action shall be instituted, for the use of the locality ; and the other moiety shall belong to the prosecutor. § 23. Limitation of actions. § 24. Act to commence 1st January, 1855.. By 18 v., c. 95, §. 1, the words'" or packer," in the 21 § of the last mentioned act is repealed. <§ 2. Any person not being duly authorised under the said act who shall in any manner whatsoever assume the title or oflice of inspector of pot or pearl ashes, shall exercise any of the duties of such inspector, or shall issne any bill, certificate or declaration establishing or purporting to establish the quality of any pot or pearl ashes shall, for every such offence, incur a penalty of £5, recoverable in like manner as prescribed by the 22 § of said act, or by summary conviction before any justice of the peace, who, in default of immediate payment, may issue a distress warrant, or commit the offender to the common gaol until such penalty be paid. § 3. All the provisions of said act shall apply to this act in so far as they are not inconsis- tent with the provisions hereof. POUND BREACH. Pound breach is the forcibly breaking the pound, in vrhicii cattle or goods have been put after being lawfully distrained,! for the purpose of rescuing them. It has been doubted whe-l ther this is an indictable offence, when unaccompanied by al breach of the peace. — 4 Leon. 12 ; 3 Burr. 1791, 1731.r But as pound breach is considered a greater offence at com" mon law than even a rescue of the goods distrained, and m no doubt an injury and insult to public justice, it seems toM equally indictable as such at common law. — Mirror, c. 2, [ 26 ; 2 Chit. c. 4, 204, note (b). It is well observed, howj ever, that tbo civil remedy given by the statute of 2 W. M. c. 5, § 4, will, in most cases of a pound breach, or a red cue of goods distrained for rent, be found the most dcsiraUj mode of proceeding, where the offenders arc responsible peif sons. — 1 Mu88, 363. For under the provisions of that m _# ! (a) The act does not seem to provido any speoifio remedy for the recoTeij ef penaltiea above £10. Mffaij-iiivs., ]9ottn)r Wdttptv* 661 ,M\ V this act, not the inspectors, jr the same in a ent jurisdiction, by execution, as uch fines, when ivided) he paid to jh action shall be the other moiety litation of actions. clcer,"inthe21§ S. Any person not -iho shall in any 5ce of inspector of the duties of sucli sate or declaration 3 quality of any pot ice, incur a penalty ;scrihcdhythe225 .efore any justice of payment, may issue r to the common gaol ,e provisions of said ey are not inconsis- br the pound, in vfHcli fg lawfully distrained, las hecn doubted ihe-1 unaccompanied by a p Burr. 1T91, m\ [reater offence at comJ Lods distrained, and 1! ; iustice, it seems tobe s well ohserved H > the statute of ii>>-» oundhreach,orare! und the most desirall hrs arc responsible pe ^provisions of that st! Bolfic remedy for the recontl tute, the party grieved may, in a special 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. — ^ge Bradley on Distresses^ 282 ; 6 Bac. Ab. Jtescue, 0. The punishment, upon a conviction or indictment for pound breach, is fine or imprisonment, or both. Indictment for Breaking Pound. (Chitty.) County of , } The jurors, &c., that on, &c., at, &c., one J. to wit. \ C. took and distrained one mare and two colts, of the cattle of one J. S., late of the township aforesaid, in the county aforesaid, yeoman, of the price of twenty pounds, in and upon a certain close or parcel of land, of him the said J. C, situate and being at, &c., aforesaid, wrongfully feeding and depasturing upon the grass growing in and upon the said close and parcel of land and doing damage to him, the said J. C. there, as a distress for the damage then and there done and doing by the said cattle, and the said mare and colts so taken and distrained, as aforesaid, he, the said J. C, on the same day and year aforesaid, at, &c., aforesaid in the common pound of the said township of in the county aforesaid, impounded and kept, and detained the same in the said common pound there, as a distress, for the cause aforesaid : and the jurors, &c., do further present, that the said mare and colts, being so impounded, and remaining in the said common pound there, as a distress, for the cause aforesaid, the said J. S, on &c., aforesaid, with force and arms, at, «&c., aforesaid, the said com- mon pound, broke 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 I made to the sfiid J. C for the damage done by the said mare and colts, as aforesaid, unlawfully did rescue, take, lead and drive away, in contempt of our lady the Queen and her laws, to the evil and pernicious example of all others in the like case I offending, and against the peace of our said lady the Clueen, I her crown and dignity. POUND KEEPERS. By 12 v., c. 81, § 31, the municipal corporation of each [township is empowered to make by-laws for (amongst other things) the appointment, under the corporate seal, of a suffi- Iciont number of pound-keepers and other officers, with power jto displace them and appoint others, and add to or diminish jthe number of them, as the corporation shall see fit ; also, Ifor regulating and prescribing their duties, and the penalties ■to be incurred on their making default ; and for settling the Tremuneration to township officers ; and for inflicting reason- able penalties for refusing to serve office. ^I'l' W.i. '1 . .1. i. :n m- '% i: ■ill > i^ri-l;:^, ii!iii-y 7 662 pottifV mrcitet* Pound-Jeeepers' Duties by Statute. Tt is enacted by 1 V., c. 21 (the whole of which i8 repealed by 12 v., c. 80, excepting sections '62, 33, 34 and 35, which are expressly saved from the operation of this act, by sched- ule B.), § 32, that pound-keepers appointed under this act are to provide themselves with sufficient yards or enclosures for the safe keeping of animals impounded ; and pound- keepers are required to impound all animals unlawfully r li- ning at large, trespassing and doing damage, that may bo delivered to them by any person resident within their divi- sion, and shall furnish the same with necessary food and drink ; and if after 48 hours such animals shall not be claim- ed and redeemed by the owner paying the pound-keeper Lis lawful demand and charges, and the amount of damages awarded as hereinafter provided, he shall cause a notice in writing to be affixed in three public places in the township for at least fifteen days, giving a description of the animals and stating the time and place of sale ; and if the owner docs not redeem the same within the time, by paying the pound-keeper's fees, to be regulated from time to time hv the town wardens, who shall furnish a copy or schedule to the township clovk for the information of the pound-kcoper.s and the charges and damages awarded to the person im- pounding the same, said pound-keepers shall sell the same to the highest bidder, and shall, after deducting his own le^al charges, and damages awarded to the impounder, return the overplus to the owner : provided, tl at if no person claim such animals within tlirec months after public notico and sale as aforesaid, such overplus shall be paid to the township clerk, to be expended in the imjn'ovement of tlie roads and bridges of the township. > § 33. If any ox, horse or cow shall be impounded, and not claimed within liftocn days, and the owner not known to the pound-keeper, he shall r.ot sell the same at the time statud in such notice, but shall postpone tho sale for forty daj;, when the pound-keeper shall sell the same and dispose of the proceeds ;is before mentioned : p)'ovidcd, that the owner may at any time before such sale redeem the same by paying demands as aforesaid. § 34. Person impounding cattle shall within twenty-four hours state in writing to the pound-keeper his demands against the owner for damages : and if the owner shall tender to tho pound-keeper the full sum which shall or may be awarded as ;' ; i J 'k'A If mnm u 664 iltnemunfrr* i w m '-'4 '.f (•iftnni'r ei'.i' li*^ ^'■m '■1 ^ii i!;!':" ^ai ::.= '? mil |::||:|i,!iiliif|t:!.;'*^K.-: fl-f -Jf- f.'.'-'l lip Klilir,.^, s5! i ■!■:.-. :.» enforce; and every person who shall have supplied such food, shelter, and nourishment, time and trouble as aforesaid shall be at liberty, if he shall so think fit, instead of proceed- ing for the value thereof as aforesaid, after the expiration of not less than four clear days from the time of impounding the same, to sell any such pig or poultry, and after the expi- ration of not less than eight clear days from the time of impounding to sell any horse or other cattle or other animal openly in or near the place where impounded or confined or openly at any public market, street, or other public place after giving three days' public written or printed notice thereof by affixing such notice upon the door of the nearest school house, or of the nearest church, chapel, or other public place in the city, town, village, township or place wherein the distress was made, for the most money that can be got for the same, and to apply the money in discharge of the value of such food and nourishment, loss of time, kt and the expenses of animals or poultry, and of such sale or incidental thereto ; as well as the damage done by the same to the property of the person distraining (such damage not to exceed £5 in any case, rendering the overplus, if any, to such owners.) But no such sale shall be lawful unless the party claiming to sell, shall first make oath in writing before the said justice, that the notices of sale as above mentioned j were duly affixed, to the satisfaction of such justice. ^ 3. In case any such person or pound-keeper shall refuse I or neglect to find, provide and supply such daily good ai sufficient food, water, shelter and nourishment to such cattle I he and they shall for every day he shall so refuse or ricglectl forfeit and pay a sum not less than five shillings, nor morel than twenty shillings, which shall be recoverable before anyj one justice of the peace in like manner as any penalty, for-f feiture, damage or injury, as hereinafter mentioned. § 17. Nothing in this act contained shall be held to repeal any by-laws made which may be construed to have refereno to any of the provisions, matters and things contained in tliiJ act by any municipial council under the provisions of m municipal laws of this province, excepting in so far as thj same may be at variance with the provisions of this act; bol such by-laws so made shall remain and continue in full forc«| § 18. The 2nd and 3rd sections of this act shall apply I Upper Canada only. See further under title " Cruelty to Animak." PR^MUNIRE. The offence of prosmunire was so called from the words ( U.'rlk' 'I.W.'t.l ' Mlfl i% ) suppVied 8uc\\ ible aa aforesaid ,tead of proceed- tlie expiration oi Q of impounding id after the expi- from the time of 3 or other animal, led or confined, or ther public place, or printed notice ioor of the nearest chapel, or other township or place ost money that can ,tiey in discharge of loss of time, &c., 'and of such sale oi re done by the same ncr (such damage not o^'verplus, if any, to be lawful unless tk aath in writing befoie ; as above mentioned 'such justice. nd-kecper shall refuse such daily good aijd shment to such catjle, ,U so refxise or v.cgkl 'e 8/u-«mf?«, nor mow ecoverableheforeanj as any penalty, toi- er mentioned. shall be held to repe: •ued to have referenw bingscontamcdintb^ the proviBions ofty roting in so far as Ji pons of this act; li Id continue in fulUor this act shall apply my to Animals" ^vatmnnivt. 665 jailed from the voids the writ issued preparatory to the prosecution thereof, "pre- munire facias A. B. quod tunc sit coram nobis," &c., the word being a barbarous corruption in the law Latin of the word prsemoneri. 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 exorbi- tant power claimed and exercised in England by the Pope, which, even in the former davs of bigotry and blind zeal, was too heavy for our ancestors to bear ; the words prsemunire 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 'prsemunire : and this was originally ranked as an offence immediately against the king, because it consisted in introducing a foreign power into the land, and creating an Imerium in imperio, by paying that obedience to papal process which constitutionally belonged to the king alone. — bi. Cow. 103. By statute 16 Rich II., c. 5, which is usually called the statute of prsemunire, and is generally referred to by all subsequent statutes — it is enacted, that whosoever procures at Rome, or elsewhere, any translations, processes, excom- munications, bulls, instruments or other things, which touch the king, against him, his crown and realm, and all persons aidinff 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 the king and his crown; a process of prsemunire facias shall be made out acainst 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 foreign- ers, that in the reign of H. V. the alien priories, or abbeys, for foreign monks, were suppressed, and their lands given to the crown, and no further attempts were afterwards made in support of these foreign jurisdictions. — 4 Bl. Com, 112. After the Reformation, the penalties of prsemunire were extended to mere papal abuses. Thus, by 24 H. VIII., c. 12, and by 25 H. VIII., c. 19, 21, to appeal to Rome from my of the king's courts ; to sue to Rome for any license or ispensation ; or to obey any process from thence, are made iablo to the pains of prmmunire. By 5 Eliz. c. 1, to refuse the oath of supremacy, incurs e pains of prsemunire : and to defend the pope's jurisdic- lon in this realm, is »,lso a prsemunire for the first offence, d high treason for the second. 84 it ' .1' I' ■»''•', tS'i . ■' ■'t H • ■ lp:j*-;;' i ; 'MA: 666 VreiifiUmetit* I :■ ¥;■■■■ a £Mi -f^ '■ ■■■ILaI- t' ■ ■ JBal^ ■ 'i? 'Al l?< ■* ■.' 'i > ■ I':. ^ JW'X?^ If . - B if ^ lit! ^■' Thus far the penalties of procmunire seem to have kept within the proper bounds of their original institution, namely the depressing the power of the pope ; but being pains of no inconsiderable consequence, it has been thought fit to appW them to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation at all. — 1 BL Com. 110. By 13 Car. II., c. 1, it ig also declared a jpra>mttn/re to assert malciously and advisedly by speaking or w^riting, that both or either of the houses of parliament have a legislative authority without the king. By the Habeas Corpus Act 31 Car. II., c. 2, it is made a prse- munire and incapable of the king's pardon, to send any sub- ject of this realm to parts beyond seas. By 7 & 8 W. III. c. 24, Serjeants, counsellors, proctors, attorneys, and all offi! cers of courts, practising without having taken the oath of allegiance and supremacy, and without having subscribed the declaration against popery, arc guilty of pramunire, whether the oaths be tendered or not. But these provisions are now modified by provincial statute. See ante title, ^^ Oaths of Office." By 6 Anne, 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 kin 7 and par- liament cannot make laws to limit the descent of he crown is likewise declared a prwmunire. Numerous as the statutes arc on this subject, prosecutions for this oficncc have been seldom instituted. PRESCRIPTION. By 10 & 11 v., c. 5, § 1, claims at common law or by pre- scription to real estate, of thirty years' standing without interruption, shall not bo defeated by shewing that such title I first began at any time prior to such thirty years ; and after sixty years, sucn title shall be indefeasible. § 2. And so the right to any watercourse shall not be defeated after twenty years' possession, by showing commencement prior thereto ; and after forty years', such title shall be inde- feasible. §3. 20 years' uninterrupted use of any ^^itt.jS any dwelling-house, work-shop, or other building', - an absolute right thereto, unless held under sor. ' writing. PRESENTMENT. A presentment generally taken is a very comprehensivej term, including not only presentments, properly so called but also all inquisitions of office, and indictments by a eranl jury. But a presentment, as commonly understood, u thj 39tfflioif Dreafdng. 667 to bave kept tution, namely, ing paina of no fht fit to apply ich bear more, e, and some no ,r. II., c. 1, itia ly and advisedly, of the houses of )ut the king. By it 18 made a pse- to send any sub- iy 7 & 8 W. 111., ■neys, and uU offi- taken the oath ot ing subscribed tbe ramunire, vfhetlier provisions are now person, other than Son, hath any rigb t the kin-*, and par- >Bcent of he crovjn, ,ubject, prosecutioM Ited. hntnonlaworbypre. D standing without lowing that such title ttv years ; and attr UhU. §2. And BO tat be defeated after [commencement pviot * title shall be mde- ^ use of any Ught;^ fr building, ""• under &or ^' L very comprehensiv Ks, properly so calW Llictments by a gmi fnly understood, i» v^ notice taken by a grand jury of any offence from their own knowledge or observation, 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 In»t. 739. See further on this subject, ante title, " Grand Jury." PRISON BREAKING. Prison breaking is the offence of a party, who is in legal custody upon any charge, effecting his own escape by force. This, by the common law, was anciently accounted felontfy for whatever cause, criminal or civil, the party was lawfully imprisoned. But by 1 E. II., stat. 2, it is declared that none that should from thenceforth break prison should 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 convicted thereupon, according to the law and custom of the realm ; therefore, although to break prison and escape, when lawfully commit- ted for any treason or felony, still remains felony as at common law, the breaking of prison when lawfully confined upon an inferior charge, is punishable only as a high mis- demeanor, by fine and imprisonment. — 4 Bl. Com. 130. In whatever place a prisoner 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 house of a constable, or private person, such place is properly a prison within the meaning of the statute. — 2 Inst. 589 ; 2fiawc. 18, §4. But if no felony whatever has been committed, and tho Darty is merely in custody on a mittimus, without being indicted, then he is not guilty within the statute, by breaking the prison, his imprisonment being, in this instance, unjusti- fiable. There must be an actual, and not merely a constructive [breaking, to make the offence felony ; therefore, if through the negligence of the gaoler, the prison doors are left |(>pen, and tho party escapes without using any kind of force lor violence, ho is only guilty of a misdemeanor. — 2 Inst. [590; 1 Hale, 611. The breaking must be by the prisoner iself, or by his procurement ; for if other persons, with- (at his privity or consent, break the prison, and he escape roush the breach so made, he cannot be indicted for the bng, but only for the escape. — 2 Haw. c. 18, § 12 ; 2 hat. 590 ; 1 HaU, 611. ■■ V r . , t .i,""'T r ,'■ ill l'3 % 668 39vffiioner* 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 Inat. 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 wav material to the charge on which he is tried. — H. v Barnett 3 C. ^ P., 600. By 4 & 5 v., c. 24, § 9, all prisoners tried for fcloniej shall be admitted after the close of the case for the prosecu- tion to make full answer and defence thereto by counsel, or by attorney, in the courts where attorneys practise as counsel. § 11. When the attendance of any person confined in anv gaol or prison in this province, or upon the limits thereof, shall be required in any court of assize and nisi prms^ or oyer and terminer or general gaol delivery, or other court. it shall be lawful for the court before whom such prisoner shall be required to attend, in its discretion, to make order upon the sheriff, gaoler, or other person having the custody of such prisoner, to deliver such prisoner 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, there to receive and obey r>uch further ardor as to the said court shall seem meet : provided always^ that no prisoner confined for any debt or damages in any civil suit shall be thereby rcmoveil out of the district where he shall be confined. § 12. All persons held to bail, or committed to prison for any oflence against the law, shall be entitled to require and have on demand (from the person who shall have the lawful custody thereof, and who is hereby required to deliver the | same), copies of the examinations of witnesses, respective- ly, upon whose depositions they have been so held to bail I or committed to prison, on payment of a reasonable sum for the same, not exceeding three pence for each folio of one hundred words : provided always, that if such demand shall not be made before the day appointed for the commencement of the assize or sessions at which the trial is to take place, suclil person shall not be entitled to have any copy of such examina-f tion of witnesses, unless the judge, or other person to presidej at such trial, shall be of opinion that such copy may be ma and delivered without delay or inconvenience to such trial;! •rs tried for fclonioj ase for the prosecu- ereto by counsel, or 1 practise as counsel, -son confined in any a the limits thereof. 5 and nisi prm, or ery, or other court. whom such prisoner •etion, to make order 1 having the custody 3oner to the person •which person sV.all er to the place Vrherc ting, there to recciYo said court shall seem ■,ner confined for any |l be thereby removed fcfined. . mmitted to prison tor titled to require and shall have the lav,lul auired to deliver tk [witnesses, respectm- ' been so held to bail a reasonable sum tor for each folio of one , if such demand shall •or the commencement d is to take place, sucli copy of such examma- »ther person to presidcl uchcopymaybemae enience to such trial, ]9t0liaU* 669 but it shall, nevertheless, be competent for such judge or other person so to preside at such trial, if he shall think fit, to post- pone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged. § 13. All persons under trial shall bo entitled, at the time of their trial, to inspect, without fee or reward, all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall bo had. See also titles '■'' Commitment " '^ Indictable OJfenceSf" " Summary Conviction. ' ' TRIZE FIGHTING. All persons present at, and countenancing a prize fight arc ffuilty in law of a misdemeanor. And when such a fight is expected to take place, a magistrate ought to cause the in- tended combatants to be brought before him, and compel them to find sureties to keep the peace till the assizes or sessions : and if they refuse to do so, he should then commit them till they comply with suoh requisition. — M. v. Billinf/- km,2 6^. . 234. TROBATE. Of tJie office and duty of Executor. 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. 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 Salh. 301 ; mm. Off. Ex. 34, 35; Lovehm on Wilh, 258, 259. The executor may, in convenient time after the testator's death, enter into the house descended to the heir, for the re- : moving and taking away of goods, so as the door be open, or I at least the key be in the door : but he cannot justify the breaking open the door of any chamber to take goods there ; Uut only may take those in the rooms which be open. — Love- I Im on Wills, 200. Of the office and duties of an Administrator. An administrator cannot act before letters of administra- Ition arc granted to him. — Lovelass on Wills. By stat. 31 lEdw. III. c. 11, 21 II. VIII. c. 5, §3, in case any person Ishall die intestate, or the executors refuse to prove the testa- Iment, administration shall be granted to the widow or next lof kin, or to both, taking surety for true administration. }:,\ •■ ' i''' mm ■! ' K •i!' li ' i ^- ! !y I'l if m I 670 Vtodalr* \t 'i"; ■i ■' i: M rl. ■V*- '-'-^' !,' ■■;-' Hp -I'- ' (' nm^iM ill ii wis liiiilfe By 22 & 23 Car. II., c. 10, made perpetual by 1 Jac. 2 0. 17, it is enacted, that the surplusage of an intestate's estate shall be distributed :— one-third to the wife of the in- testate, the residue amongst his children and such as lesallv represent them, if any be dead, other than children (not heirs at law), who shall have any estate by settlement of the in- testate in his lifetime, 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 surplus. age 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 intes- tate. — § 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 intestate, in equal degree, and and those who represent 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 mad" till one year after the intestate's death, and every one to whom any share shall be allotted, shall give bond with sureties in the said courts, that if debts afterwards appear, he shall refund his ratable part thereof, and of the administrator's 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 administration, a credi- tor may, by custom, do it. — Lovelass on Wills, p. 7. Of the Will. No witnesses are absolutely necessary to render valid a will of merely personal property : but with respect to a will of real or landed jjroperti/, until lately, three witnesses were I necessary ; and now by the *4 W. IV., c. 1, § 51, two witnes- ses are suflScient. Prolate of the Will, how granted, Sfc. *By statute 33 G. III., c. 8, a court is constituted and I established for the granting of probates of wills, and commit- [ ting letters of administration of the goods of persons djingl intestate, to be called the Court of Probate of the province ofl Upper Canada : the Governor to preside therein andpronouncel ]9rotiate* 671 tual by 1 Jac. 2, of an intestate's le wife of the in- [id such as legally children (not heirs lemcnt of the in- (hares. Children, sments, or portions ach of the surplus- ual. But the hcit ^stribution with the of the value of the vise from the intes- jsentatives of them, the residue equally n equal degree, and ong collaterals, after ihere be no wife, all and if no child, to aal degree, and theit lill one year after the m any share shall be the said courts, that und his ratable part ges.— § 7. 1 ahall have an equal \m. Dig- ^<^»»- (^j Irainistration, a credi- n WillSj V '^• iryto render valid a | with respect to a viH tAree witnesses verel !. 1, § 51) <«'<> ^^*^^' rantedy ^c. irt is constituted and sofwills.andcommt- lods of persons dying ,ate of the province of therein andpronouncel 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, regis- trar, 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 probates of wills and letters of administration of persons having personal estate \rithin such district, to bo called the surrogate court of the Eastern district; the surrogate court of the Midland district; the surrogate court of the Homo district ; and the surrogate court of the 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 tho said courts shall have full power to issue process and hold cogni- zance of all matters relative to the granting of probates of wills and letters of administration, and to grant the same ifithin their respective districts, except as hereinafter men- tioned. § 3. In cases where the deceased shall have goods, chattels, or credits, to the amount of j£5, in any other dis- trict 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 bo granted by the court of probate only. By § 6, every Avill duly proved shall be kept among the records of said court ; »nd a transcript thereof duly authenticated under seal of the court, shall be taken and received as the regular probate of such will, in all her Majesty's courts within this province. By § 7, no nuncupative will shall be good where the estate thereby bequeathed shall exceed X30, that is not proved by three witnesses, at the least, present at the making thereof ; nor unless the testator bid the persons present bear witness ; nor unless made at the last sickness of the deceased, and in liis dwelling-honse, or where he had been resident ten days before making such 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 " ing of such will. § 9. No probate shall be granted till fourteen days after the death of the testator ; nor shall any inuncupative will be at any time received, unless the widow or lext of kin have been cited. § 10. Nor until due proof be »de before the said judge or surrogate, that such person ia ead, and died intestate. § 15. In cases where administra- ion shall be granted with the will annexed, such letters shall il? ii < 1 iHi' # 111 m 672 J^roliate* r itv. express that such will shall be observed and performed, and for such purpose the administrator shall enter into bond with two or more sutficicnt sureties. § 17. The court of probate and court of surrogate respectively, shall hold four sitting or terms for hearing and determining actions, suit8, and causes, &c. : the first term from the first Monday in Jannan to the Saturday following, inclusive ; the second term from the last Monday in March to the iSaturday following, jnclu- sive ; the third term from the first Monday in June to the Saturday following, inclusive ; and the fourth term, from the last Monday in September to the Saturday following, inclu. sive. § 18. The following fees may be taken : Fees to he taken hj the Official Principal and SurrogaU. OFFICIAL PRINCIPAL AND SUKROOATE. REUISTRAK. For seal to the probate of a will, to letters of administration with the will annexed, and to letters of administration, where the property devolving is under .£:300 JGO 10 8 FromjeaoO toXIOOO 1 ^ When above £2,000 i! ^ For seal of the court to any writing or in- stumcnt 13 For receiving caveat . . . For filing the same For receiving inventory For filing the same For citation For collating will For drawing bond and attesting execution For searching register, each year For office copy, each page 18 lines, six words in each 1 0| APPARATOK OK MESSKXGKR. For service of citation . ^£0 3 l)| For travelling each mile 1 Letters of Administration^ how grantul^ Jr. By the same statute, *33 G. III., c. 8, § H, when appli- cation is made for letters of administration by :)\\x person no:j entitled as next of kin to the intestate, i!\e oouvt, beforol granting tht same, shall issue a citation to the next of 1 summoning him or her to shew cause against tU' same, and! in case the next of kin should happen to be absent from tW province, the court may then grant administration fm tm\ to the next of kin in the province. § 12. The judge or surj rogate, upon granting letters of administration, shall taka '••••••••••• 6 6 ;t 4 8 8 1 3 I (I 3 I 1 II Stotiate* 673 [ performed, and 5r into bond with court of probate old four sittings ctions, suits, and )nilay in Janiumj second term from r following, inch- y in June to the rill term, from the y following, inclu- ken : il and Surrogak. BEUlSTHAn. EO 16 1 () tJ s ^ 6 ^ 1-3 4 3 1 8 () ;m 8 rt 4 \\ 4 1 (I 6V () « M 1 II 1 1 1 o| . . £0 3 Ol . 1 ' granted, .j',r . :.-i:'l.i" I'tJl «i''™ 678 mwt m(M9* mises and remove the same. § 3. The lieutenant-governor and executive council, may also make rules and regulations concerning the entry and departure of boats and vessels, at the diiFerent ports or other places, and the cargoes and passengers. § 4. Any person disobeying or resisting any lawful order of the health officers, or any two of them, or wilfully vio. lating any rule or regulation, or obstructing the officers in the execution of their duty, on conviction before two justices, where such offender shall reside, shall forfeit and pay not less than 20s., nor more than £20, to be levied by seizure and sale of the offender's goods by warrant of the convicting justices, to be paid to the receiver-general for the use of the province. § 5. This act to remain in force one year, and to the end of the next session. § 6. In all cases in which diseases of a malignant and fatal character shall be discovered to exist in any dwelling- house, &c., situate in any unhealthy situation, or be in a neglected and filthy state, or inhabited by too many per- sons, the board of health, or a majority, may, at the expense of the board, compel the inhabitants to remove therefrom and place them in sheds or tents, or other good shelter, in some more salubrious situation, until the cleansing and purification of such dwelling-house, &c., has been eflfected. This act to relate to all houses and out houses situate within one mile of any city, town or village. This statute was made perpetual by the *2 Vic. c. 21. By the 12 V., c. 8, § 1, this act to come into force by procla- mation in case of any formidable epidemic, &c. § 2. The 1, 2, 6, § of the 5 *W. IV., c. 10, to be suspended whilst such proclamation is in force. § 3. After issuing proclamation the Governor is authorised to appoint a "central board of health." § 4. Local boards of health, of not less than three persons, to be appointed by the municipal councils, and in case of neglect the Governor may appoint such local boards. § 5. Central board may issue regulations for prevention or miti- gation of disease, and require the local boards to see to the execution of the same ; and may authorise the removal of i patients from their dwellings in cases of disease of a malignant and fatal character, and placing them in sheds or tents, or other good shelter, until measures can be taken for the cleans- ing and disinfection of such dwellings. § 6. Members of local I boards to be called health officers, and may enter and inspect any suspected dwelling-house, &c.; and in case of the owner! or occupier's refusal to obey regulations, such health officers j may, with the aid of the civil power, enter upon such pre- mises and enforce such regulations. § 7. Expense of central! 39ttfilfc HunXfu* 679 xnant-governor and regulations ad vessels, at the , and passengers, r lawful order of or wilfully vio- ig the officers in tion before two shall forfeit and 3, to be levied by 8 by warrant of , receiver-general, J act to remain lext session. 1 6. ilignant and fatal in any dwelling- lation, or be in a by too many per- lay, at the expense remove therefrom, »ther good shelter, L the cleansing and has been effected. louses situate witliin lis statute was made into force by procla- ic,&c. §2. 'Ihel, ispended whilst such ing proclamation tk ■iral board of health." J than three persons, icils, and in case of h local boards, lo- ir prevention or miti- ^ boards to see to the ioriso the removal of lisease of a malignant I in sheds or tents, or P taken for the cleans- r§6. Members of local! nay enter and inspect , in case of the owner s such health officers enter upon such pre-l 7. Expense of centrall hoard to be defrayed by the province ; and of local boards by their respective localities. § Regulations of central board to be sanctioned by the Governor and published in the Gazette. § 9. Local by-laws on the subject of health to be suspended, whilst the regulations under this act remain in force. § 10. Any person oflFering any obstruction to any one acting under the authority of this act, or who shall neglect or refuse to comply with the said regulations, shall be liable to a penalty not exceeding £5 for every offence, to be recovered before any two justices, and levied by distress and sale by the same justices, or any other justices ; and in default of distress tho offender to be committed to the common gaol or house of correction, for a period not exceeding fourteen days, unless the amount be sooner paid. § 11. No writ of certiorari to be allowed. § 12. Interpretation clause. By the general municipal act 12 V., c. 81, § 60, munici- palities are authorised to make by-laws for providing for health, and against the spreading of contagious or infectious diseases ; for regulating the interment of the dead ; keeping bills of mortality. Imposing penalties on physicians, sextons and others for default ; for providing one or more public ceractries, and laying out and regulating any. § 157. Mem- bers of municipal corporations to be health officers under the *5 W. IV., c. 10, or any future act for the like purposes. PUBLIC LANDS. By 2 V„ c. 15, entitled "An Act for the protection of the Lands of the Crown in this province from trespass and injury," §1, commissioners to be appointed to enquire concerning trespass. § 2. On finding parties illegally in possession to give notice to intruders to remove within thirty days ; and in default of removal such commissioners may by warrant directed to the sheriff cause such parties to be ejected. § 3. And in case of their resuming possession the commissioners are authorised to commit offenders f n the common gaol for a term not exceeding thirty days, and to pay a fine to her Majesty not exceeding jE20. § 4. The commissioners or any two of them upon investigation finding any person charged with cutting down or removing any timber or trees, or foi- having quarried upon or removed any stone or other I materials from the lands, guilty thereof, may order and direct I the offender to pay a fine to her Majesty not exceeding £20, and in default of payment that he be committed to the com- mon gaol for a period not exceeding three months. § 5. Timber, &c., cut but not removed may be seized and sold. .■'!/.|!n ■;, !" fen n. ■; 680 39utilCc HanDTfii. VI* I* 'ili :■'.'■ ■"! •p^-^ ,'P' 1. § 6. Commissioners authorised to summon witnesses. § 7. Fines, how to be appropriated. § 8. Before the investiga- tion of any charge under this act the parties to be sum- moned, and in default of appearance the commissioners may proceed ex parte. § 9. Sheriffs and other officers bound to execute warrants of tht commissioners. § 10. Commis- sioners entitled to the same privileges and protection in respect of any action or suit against them as justices of the peace. § 11. Appeal against any judgment of the commis- sioners to be made to the Court of Chancery, and the decision of the court to be final. By 12 v., c. 9, § 1, the provisions of the above act to extend to all lands in Upper Canada whether surveyed or unsurveyed, for which no grant, lease, ticket either of loca- tion or purchase, or letter of license of occupation has been issued, or whether usually known as crown reserves, clergy reserves, school lands, or Indian lands, or by or under any other denomination. § 2. In case of doubt as to the legality of any possession the commissioners are authorised to give the parties notice to quit as in the first mentioned act, and any person disobeying such notice may be removed by warrant of the commissioners, or one of them, directed to the sheriff. § 3. Personal service of such notice or of the summons to be issued under the said act not requisite, but sufiicient if delivered to the wife, or some grown-up person on the pre- mises ; at the same time putting up a duplicate notice in some conspicuous place on the premises, or when no grown- up person found on the premises, then by posting duplicate notices in four conspicuous places on the premises. § 4. In case of resumption after removal the sheriff is required to make a special return of the warrant of removal to the Court of Queen's Bench, upon which the court may issue " writs of j removal" as often as necessary for the protection of tliej premises. § 5. Such writs may be superseded upon suffi- cient cause shewn. § C. Convictions by the commissioners I may be romoved by certiorari into the same Court of Queen's Bench, and proceedings there had for the satisfaction of any fine thereby imposed. § 7. Commissioners authorised toj commit parties for contempt when engaged in the executionj of their office. By IG v., c. 159, entitled "An Act to amend the law fori the sale and the settlement of the public lands," certain former acts 4 & 5 V., c. 100, and 12 V., c. 31, are repealed] § 2. Except as hoi'einafter provided, provided no free grmi of public land shall bo made to any person. § 3 provide! for the settlement of any claims arising out of the rcpcalef m ■witnesses. | T. •0 the invcstiga- •ties to be sum- (uvmissioners may officers bound to § 10. Coratnis- ind protection in , a8 justices of tk ;nt of the commis- •y, and the decision ■ the above act to rhether surveyed or •ket either of loca- occupation has been )wn reserves, clergy or by or under any lubt as to the legality to authorised to give eutionedact,andanY removed by ^^awant iirected to the sheriff, r of the summons to liaitc, but sufiicicntit np person on the pre- L duplicate notice m ''.s or when no gvo^n- . by posting duplicate the premises. § -*• ^^ sheriff is required to f removalto the Court rt may issue "^v^tso, Ithe protection of tk Lperseded upon suffi- 'bv the commissioners same Court of Queens the satisfaction of any ^sioners authorised to I :gaged in the execution bt to amend the la>v H puWic lands," certai V c. 31, are repealed. trr if ti^e Vi^' 39tttilfc Efin^fii* C81 acts. § 4. The Governor in council authorised to fix the price per acre of public lands. § 5. No agent for the sale of public lands shall purchase any ho may be appointed to sell. § 6. Licenses of occupation in the first instance may be granted giving to the occupant certain rights. § 7. The contoissioner of crowA lands to keep a register of assign- ments of claims, and thereupon the patent may issue to the assignee. § 8. The like privilege extended to claims already registered. § 9.. Free grants may be made to settlers in the vicinity of any new public roads under such regulations as may be made by the Governor in council. Such grants not to exceed 100 acres. § 10. Lands may be set apart for markets, gaols, and other public purposes not exceeding ten acres each. § 11. Licenses of occupation may be revoked in case of fraud or violation of any of its conditions. § 12. Settlers in such case may be dispossessed by order in coimcil. §13. The Crown may resume lands when the claim has become forfeited. § 14. A certain sum not exceeding one- fifth of the proceeds of school lands may be reserved and expended for public improvements -within the county under the direction of the Governor in council. § 15. This act may be extended to Indian lands by order of the council. \ 10. A list of crown, school and clergy lands for sale to be published. § 17. The Governor authorised to appoint agents for sale. § 18. Erroneous patents may be canoellod and correct ones issued when there is no adverse claim. § 19. In case of a double grant an equivalent may be granted to the loser. § 20. Free grants may be made for deficiencies arising from any false survey. § 21. Court of Chancery in Upper Canada may livoid patents issued in error. § 22. Affidavits required under this act may be made before the judge or clerk of any county court or any justice of the peace, or any commissioner for taking affidavits, or agent of the commissioner of crown lands. "^ iv3. The commissioner of crown lands and agents under him may be required to give security. § 24. Crown land commissioner to transmit yearly to county registers lists of lands sold, &c. § 25. The Governor in council authorised to make orders for carrying act into eff'ect. § 26. Proof may be required by the j commissioners in case of application for patent by therepre- JBentatives of any deceased locatee. § 27. Clergy reserve lots be re-sold or re-leased on failure by the original party Ito fulfil the conditions. § 28. Land scrip may be received [in payment up to the 1st of July, 1854. § 29. Licenses of |occupation heretofore granted to remain in force. § 30. The interpretation act to apply to this act. 86 !; !<•' H' :■ 'hf ;f\- ■! ■ ii-. ■•hft ':";V ; IhiliS '^->wr JmrnVMi mm <582 Cutting Timber on. By 12 v., c. 30, § 1, the commissioner of crown lands is authorised to grant licenses for. § 2. Form of the license and its legal effect. § 3. The party licensed to make a return upon oath of the timber cut. § 4. Timber liable to dues may be followed, seized and detained until paid. § 5. The giving of bonds or notes not to affect the lien on the timber. § 6. Provision for sale of the timber seized for dues. § 7. Any person cutting without license to forfeit 15s. per tree to be recovered with costs at the suit and in the name of the commissioner or resident agent in any court of com- petent jurisdiction. § 8. Timber alleged to be unlawfully cut may, upon affidavit of one or more persons made before a justice of the peace, be seized by the commissioner, oflScer or agent in her Majesty's name wherever found, and secured until a competent decision obtained. § 9. The seizing officer may command assistance, and if any person or per- sons whatsovcr shall, under any pretence, either by actual assault, force or violence, or b}'' threat of such assault, force or violence in any way resist, oppose, molest or obstruct any officer or person acting in his aid or assistance, such ofTender upon conviction shall be adjudged guilty of felony and pun- ished accordingly. § 10. Any person or persons taking or conveying away any timber seized or detained under this act as subject to forfeiture, before the same shall have been de- clared by competent authority to have been seized without due cause, such person or persons shall be deemed to have stolen such timber, being the property of her Majesty, and to be guilty of felony, and liable to punishment accordingly. § H. Timber seized under this act to be condemned if not claimeil j within one month. §12. Any wilful false oath under this act to be deemed perjury. § 13. Parties maliciously cutting or loosening booms, or breaking up or cutting boom raftaorl cribs, shall be guilty of a misdemeanor, punishable with fine} and imprisonment of not less than six months. PUBLIC MEETINGS. By 7 v., c. 7, reciting, whereas it is the undoubted rightj of her Majesty's subjects to meet together in a peaceable anjl orderl}^ aia,nner, not only when required to do so, in compii-f ance with the express direction of law, but at such othcij times as they may deem it expedient so to meet, for the coaJ sideration and discussion of matters of public interest, &c.J it is enacted by § 1, that all public meetings of the inhabi] tants, or of any particular class of the inhabitants of m wm 9nWt mtnins^. 683 : crovrn lands is ft of the license, to make a return >r liable to dues ' paid. § 5. 'Ilie ien on tlie timber. d for dues. §7. •feit 15s. per tree, and in tlie name my court of com- L to be unlawfully ersons made before ommissioncr, officer found, and secured I 9. The soimg any person or per- ,ce, either by actual ,f such assault, force lolcst or obstruct any istance,8ucb offender Y of felony and pun- or persons taking or etained under tbis .ct c shall have been de- ccn seized without due ^ deemed to have stolen r Majestyj and to l)c entaccordmgly. §lYi 'lcmnedifnotcW false oath nndor to Aes maliciously cutting cutting boom rafts or ,r, punishable v,itb fine] months. IfGS. L the undoubted rigk Ither in a peaceable an led to do 80, m coinpli iaw, but at such othei to to meet, for thee.. 1 of public interest;, Letings of the inbj^^ [tbe inhabitants of an] district, county, riding, city, town, township, ward or parish in this province, required by law, or summoned or called as provided by the fourth section ; § 2, and all such public meetings called by the high sheriff, or by the mayor, or other chief municipal oflGlccr of any city or town, as provided by the 5th §, upon the requisition of any twelve or more of the freeholders, citizens or burgesses of such district, county, riding, town, &c., having a right to vote for members in parliament for such locality ; and all such meetings called by any two or more justices resident in any such locality, upon J like requisition of twelve or more of such freeholders, citizens or burgesses. § 3. And all public meetings declared to be such by any fiw justices, as prescribed by the 6th §, shall be public meetings within the meaning of this act. § 4. In every notice or summons for calling any such public meeting, as in the first §, there shall be a notice that such meeting will be within the protection of this act, such notice to be in the form or to the effect set forth in schedule A. § 5. The notice to be issued by the sheriff, mayor or chief municipal officer of any city or town, or by two or more justices, as in the second §, shall be issued at least three days before such meeting, and shall set forth the names of the requisitionists, or of a competent number of them, &c. ; such notice to be in the form or to the effect set forth in schedule B. § 6. Upon information on oath before any justice of the peace, that any public meeting, not being of the description men- tioned in the first § of this act, or called under the second |, is appointed to be held at any place within his jurisdiction, and that there is reason to believe that great numbers of persons will be present at such meeting, it shall be lawful for any two justices of the locality to give notice of such meeting, and to declare the same and all persons attending, within the protection of this act ; such notice to be in form or to the effect set forth in schedule 0. § 7. It shall be the duty of every sheriff, mayor, justice or other person, calling any pubUc meeting under the second §, to give public notice thereof, as extensively as he reasonably may, by posting and distributing throughout the locality a competent number of printed or written copies of the notice calling the same. § |8. The justices who shall declare any public meeting to be [onder the protection of this act, as in the 3rd <^, shall give lotice thereof, by causing printed or written copies of the lotice or declaration issued by them, to be posted and dis- libuted throughout the locality. § 9. The sheriff, mayor, justice, or other person calling such meeting, or declaring le same to be a public meeting within the act, under the„3rd i| i- v.r ',:' I tr'l ;l^-l 'f" X¥ ':M'>S;r. mm ;■# I I'®' ''Mi i If 111] 684 9uWt jnertfnofit* ''•. : ■) till mm 111,!'.- mrn mm i5l m}'!f.i I' iiiiii' ■' if' 'V'^ R ■ K- i::^ §, is required to attend such meeting and continue thereat or near the place appointed until the same shall have dis! persed, and afford assistance in preserving the peace. § 10, The chairman at such meeting shall commence the proceedings by causing the summons, or notice, or declaration to be publicly read. § 11 authorises the chairman at such meeting to cause by oral direction, any person attempting to disturb the meeting, to be removed to such a distance as may effectually prevent interruption, and by an instrument under his hantl on his own view, to adjudge any offender guilty of interrup. tion, or disturbance, upon which conviction it shall be lawful for any justice, by warrant under his hand, forthwith to commit such person to the common gaol of the district, or to any other place of temporary confinement that such justice may appoint, for any period not exceeding forty-eight liours and until the lawful costs of the constable and gaoler shall be paid. § 12. The chairman at any such public meeting may command the assistance of all justices, constables and other persons, to aid and assist him in preserving the peace. § 13. Special constables to be sworn in upon the written application of the chairman to any justice attending the meeting. § 14. Any person between the age of eighteen and sixty, refusing to be sworn, upon being required by any justice, without lawful excuse, shall be guilty of a mhch- meanor, and it shall be lawful for such justice thereupon to record the refusal of such person, and to adjudge him to pay a fine of not more than 40s., to be levied as other fines im- posed by summary proceedings before justices, or such person may be proceeded against by indictment. § 15. Any justice of the locality where such meeting shall be appointed to be held, may demand, have and take from any person attending such meeting, or on his way to attend the same, any offensive i weapon, such as fire-arms, swords, staves, bludgeons or the j like, which any such person shall have in his possession ; ami j in case of refusal, the offender shall be guilty of a misde- meanor, and such justice may record such refusal, and adjudge! him to pay a fine of not more than 40s., to be levied asl aforesaid ; but no such conviction shall interfere with thel power of such justice, or any other justice, to disarm suclij person without his consent, and against his will, by such force! as shall be necessary. § 16. Weapons of the value of 5s. oif upwards, peaceably and quietly delivered up, shall be returnei| by such justice to the party on the day next after such nieeti ing, and not before, unless destroyed or lost by unvoidabli accident. § 17. Any person convicted of a battery durini the day of the meeting, within two miles of the place, shall ]9ulilfc ^mttvu. 685 ►ntinuo tlicvcat, sViaW have dis- to peace. §10. the proceedings ion to be publicly meeting to cause to disturb tlie a may effectually t under bia band, ruilty of intervup- 'it sball be lawful ind, fortbvritb to ■ the district, or to ■ that sucb justice f forty-eight \^oyxxi, 'e and gaoler sliall Acb public mcetuig ces, constables and Reserving tbe peace. n upon tbe wntten jtico attending tk tbe age of oigbteeu nng required by any : guilty of a mmh- \ustice thereupon to ; adjudge bim to pay ed as otber fines im- ,stice8,orsucbpcvson . §15. Anyj«s^f il be appointed to k any person attending ^!e lame, any offensive Kres, bludgeons ov tk L bis possession -,.^1^4 Te guilty of a misde- rrefusat,andadju|lge P4OB., to be leyijd L\ interfere vfitb tk .stice, to disarm sacli Cviii,byB-bfovc fa of tbe value of 5s. 'dup,8^allberetuvne next after sucb me^^ I or lost by unvoidaU U of a battery dum ;i?e« of tbe place, fikl 1)6 punishable by a fine of not more than X25, and imprison- ment for not more than three calendar months, or cither, in the discretion of the court pronouncing sentence. § 18. Excepting civil authorities, it shall not be lawful for any person to come, during any part of tho day of meeting, within two miles of the place armed with any offensive weapon ; and any person offending herein shall bo guilty of a misdemeanor, punishable by fine not exceeding £23, and imprisonment not exceeding three calendar months, or both, at the discretion of tho court. § 19. Any person lying in wait for any person returning from any such public meeting with intent to assault, or by abusive language, opprobious epithets, or other offensive demeanor, to provoke such person or those who may accompany him to a breach of the peace, shall be guilty of a misdemeanor, punishable by fine, not exceeding X50, and imprisonment not exceeding six calendar months, or both, at the discretion of the court. § 20. Actions for any thing done under this act to bo brought within twelve montlis. For the schedules and forms, see the act. PUBLIC OFFICERS. By 4 & 5 V. c. 91, after reciting that it was highly ex- pedient that provision should be made for preventing any negligence, omission, or irregularity in giving due securities by all persons employed in situations of public trust, and concerned in the distribution or expenditure of public money, who are required to give security for public moneys coming tother hands, and for ascertaining the death of any surety or sureties of any such person, it is enacted by § 1, that per- sons hercnftcr appointed to offices of public trust shall give security in such sum, and with such sureties as the Governor or principal officers of the department in question shall ap- prove. § 2. Persons now in office also required to give , security. § 3. Bonds to be registered with the registrar of tie province ; § 4, who shall keep separate entries. § 5. Officers neglecting to give such security to forfeit their offices. § b. In case of death, bankruptcy, or insolvency, I or residence out of the province of any surety, tho prin- shall give notice to the chief secretary of the province, lor to the principal officer of the department, upon pain of [forfeiting one-fourth of the sum ; and neglecting to give lotlier security shall forfeit his appointment. § 7. Where the [neglect has not been wilful, the Governor may extend the DC for giving such new security. § 8. Period limited for kegistoring bonds to be estimated from the time of the exe- ai'ir" ■m. .it', ,11 686 VttfilCc JMovtin. ..', t '^1 i k- t I h, ■K 5 ■■ ii* ii ,' 5 ■ • la ' <■<'• fli cution by the last partv. § 9. Irregularity in bonds not to vacate the same. §10. Bonds to be regiatered notwithstand- ing the period elapsed. § 11. Act to apply to existlnff bonds. § 12. The 16th and 19th clauses of *3 W. IV., c 8, relating to sheriffs, repealed. § 13. Uniform practice established throughout the province. § 14. Duplicate bonds entered into by officers in Lower Canada to be deposited as soon as certain ordinances take effect. § 15. Statement of bonds to be laid before the legislature within fifteen days after the opening of every session. § 16. This act not to extend to municipal offices. § 17. Interpretation clause. By 7 v., c. 8, it is enacted that it shall not be necessary to issue new commissions at the commencement of a new reign, but that a proclamation continuing all public oflBcers and functionaries in office shall be sufficient, upon their taking the oath of allegiance as soon thereafter as may be before the proper officer. By 14 & 15 V , c. 80, sureties for any public officer may relieve themselves from responsibility by giving notice to their principal and the secretary of the province, and such principal shall find sureties within one month or forfeit liis appointment ; and by 16 V., c. 87, no office shall be avoided for non-compliance with the provisions of 4 & 5 V., c. 01. until declared so by the Governor. See also " Oath of Office:' PUBLIC WORKS. The 9th V., c. B7, entitled "An Act to amend the law con- stituting the Board of Works," repeals the third and all sub- sequent sections of 4 & 5 V., c. 38, and authorises the Governor to appoint a chief commissioner and assistant commissioner, to bo styled " commissioners of public works;" also a secretary, engineer, superintendent and other officers. § 7. The commissioner to have the management and control of constructing, maintaining and repairing all canals, har- bours, roads or parts of roads, bridges, slides and other public works throughout the province, or buildings constructed I or maintained at the public expense out of the provincial funds. § 19. The Governor in council to make regulations for the maintenance and use of such works, and for ascertaining and collecting the tolls, dues and rates thereon, and imposingj fines not exceeding in any case £50 for any one offence ; and I to provide for the non-passing or detention, at the risk of I the owner, of vessels, carriages, animals or goods, on whichj tolls are to be paid, or regulations complied with, or forj injury done to such public works, or any fine that may have ^UWt WiOVUtt. 687 n Ijondft not to d notwithstand- )1y to existing • *3 W. lY.,c. niform practice DupUcatc bonds bo deposited as 5. Statement of hin fifteen days This act not to etation clause, not be necessary icemcnt of anev all public officers icient, upon their fcafter as may be r public officer may y giving notice to province, and sucli onth or forfeit his fice shall be avoided of 4 &5V.,c.l'l, a amend the law con- Lho third and all sub- and authorises the iioner and assistant n-s of public vforks;" 'nt and other officers. ugcment and control ring all canals, har- es, slides and other buildings constructed ut of the provincial ', make regulations for andfor asccr^ammg, thereon, and imposing .any one offence;, and ention, at the risk o lis or goods, on M omplied with, or for Vy fine that may have been incurred and remain unpaid ; such regulations to bo published in the Official Gazette. & 19. Officers and soldiers on duty to pass toll-free. § 20. AH penalties imposed by this act, or any regulation under the authority thereof, shall bo recoverable, with costs, before any justice of the peace for the district in which the ofFenco shall be committed, upon proof by confession, or the oath of any one credible witness ; and if not forthwith paid, may be levied by distress and sale of iho goods and chattels of the offender, by warrant, under the hand and seal of such justice ; and in default of payment or insufficient distress, such jus- tice may, by warrant under his hand and seal, commit the offender to the common gaol of the district for such term, not exceeding thirty days, as he may direct, unless such penalty be sooner paid ; and the penalties recovered shall belong to her Majesty, for the public uses of the province, and be paid over and accounted for accordingly : provided^ that in respect to tolls on timber passing any slide, and to penalties for violating regulatii^ns, or for non-payment of tolls, the same may be enforced by and before any justice of the peace within any district in which such timber may happen to be at the time of application to such justice. 5 21. Tolls to bo paid over to the receiver-general at inter- vals not exceeding one month. § 23. The public works in schedule A. and the materials for the same, shall bo vested 1 in her Majesty, and be under the control of the commis- sioners; and other works may from time to time bo so declared by proclamation: provided, that if any district council shall pass any by-law, securing, to the satisfaction of the government, the payment of the interest on any sum of money expended on any public road in any such district, and for which interest the province is liable, it shall be lawful for the Governor in council, by proclamation, to transfer such road to the district, which shall be vested in such district from the date of the proclamation ; and the council shall have power to make by-laws for the management of such road, imposition and collection of tolls, and imposition and levying of penalties for violation of the by-laws, and the tolls thereof. § 24. The Governor in council authorised to appoint three arbitrators for each section of the province, to determine the compensation to owners of Land assumed for lie works ; their decision to be subject to the jurisdiction of the superior courts of law or equity. § 25. The Governor authorised to refer any unsettled claim for damages to such arbitrators. § 26. This act not to effect any prior proceed- ings at law or in equity. "§ 27. Arbitrators to be sworn in lis i-H |i|i im j|if,i4;f ^1'1'if'l liij- ■ " ti HW'Ml'n mmu •f^ rteiip ' ■ ff ' /■ if'; iV^ '■•?%■ G88 l9ttliUt 2l2ioi:l^». the form prescribed. § 28. To have full po^^i* to summon •witnesses and swear them ; witnesses not attenuing shall be liable to a penalty of not less than £1, nor more than ,£5 recoverable before any one, justice, and levied by distress and sale of the goods of the offender. Schedule A. PUBUC WORKS VESTED IX THE CROWN BY THIS ACT. I^avi(jations, Canals, and Sliiles. The Welland Canal and feeder, together with the portion of the Grand River from Cayuga Bridge to its mouth; the Welland River, from Port Robinson to its mouth, and the cut at tlie Chippawa; all such portions of the Saint Lawrence naviiratioii from Kingston to the port of Montreal, as have been or sliallbe improved at the expense of the province ; the lock and dam at St. Anne's ; the Scugog River navigation, and the navigation therewith — viz., from the head of the Lake Scugog to Feneloii Falls, and from tiience to Mud Lake, and Buckhorn Rapids, by Sturgeon, Pigeon and Buckhorn Lakes (hydraulic privileges being specially reserved to owners) ; that portion of the Otona- bee River between Peterborough and Rice Lake, with the lock and dam at Whitler's Rapids ; the Rice Lake and tlie River Trent from thence to its mouth, including the locks, dams and slides between those points ; all such portions of the Ottawa River, from Bytown upwards, as have been or shall be im- proved at the expense of the province ; the lock and otlier im- provements on the River Richelieu ; the Madawaska River, from the head of the Ragged Chute to the Chats Lake. Harhours, Lake Erie. Rondeau Harbour, including the piers, breakwater and inner! basin; Port Stanley Harbour and inner basin ; Port Hur\vell,j do.; Port Dover, do.; Port Maitland, do.; Port Colborne, do. LaJcc Ontario. Port Dalhousie Harbour ; Burlington Bay Canal ; Windsor] Harbour. Roads. The main provincial road from Quebec to Sandwich; tiia main road from Ciueenston to Hamilton; the Port Hope anJ Rice Lake road ; the Windsor, Scugog and Narrows Bridd road ; the Hamilton and Port Dover road ; the London and Poif Stanley road. Except the Montreal and Gluebec Turnpikj Trusts, and such portions of the said roads respectively as ml lie within the limits of any incorporated city or town, on shall from time to time be exempted by proclamation, issua by order of the CTOvernor in council, from the operations of tbj Pufilfe Wiovfiu. 689 (»r to summon enuing shall be laore than £5, ^ied by distress y THIS ACT. Ics. vith the portion of outh; iheWelland nd the cut at ik iwrer^ce navigation ive been or shall be he lock and dam ai and the navigation , Scugog to Fenelon [ Backhorn Rapids, hvdvaulic privileges portion of the Otona- I Lake, with the loci; iake and the River the locks, dams ami or ions of the OuaM .en or shal' oe inv he lock and olhev un- i^e Madawaska Uiver, L Chats Lake. breakwater and inn basin ; Port liunvel!,] Port Colborne, do. Bay Canal; Wlndsotl Ibec toSandwMch, J In ; the Port Hope a. knd Narrows Bn gj . die London and IH L respectively ««H H«dcitVortown,oJ iy proclaoiat.on, mi UtL operations of till act, which portions shall, during the period of snch exemption, remain subject to the same authorities and provisions of law as if this act had not been passed ; the tolls collected under this act upon each road being applicable to the improvement of the road, and the extension of the improved portion thereof; and the debt due by any commissioners, district, or public body, on that portion of any road which shall be under the control of the commissioners of the public works, being thereafter payable out of the provincial funds. Bridges. Chaufliere bridge, near Gluebec ; the Cap Rouge bridge ; the St. Ann De la Perade bridge; the Batiscan bridge; the St. Maurice bridge ; the Union, Suspension, and other bridges over the Ottawa river, between Bytown and Hull ; the Trent bridge at the mouth of the River Trent ; the bridge at the narrows of Lake Simcoe ; the Dunnvilie bridge; the Caledonia bridge: the Brantford bridge ; th^i Paris bridge ; the Delaware bridge ; tlic Chatham bridge ; nnd all other canals, locks, dams, slides, bridges, roads, or other public works of a like nature, constructed or to be constructed, repaired or improved, at the expense of the province. Blaximnm Tolls. Sec the Act, Schedule B., 1, 2, H, 4, 5, 6. By 10 Hi 11 Vic, c. 24, § 7, notwithstanding Schedule B. •1, in 9 Vic, c 37 {relating to the maximum rate of tolls on public roads), the Governor in council is authorised, on re- port of the commissioners, to place the toll-gates on the said road8, in that schedule mentioned, at such places and dis- tances from each other as shall appear to» him advisable and requisite ; and to vary the schedule in all or any of the parti- culars, so as the rates of toll shall not be increased beyond the amount in the said schedule mentioned, on each time of passing any toll-gate or gates, and to notify the same in the Official Gazette. § 8. Tolls at the several toll-gates may be farmed or leased. § 9. Timber passing slides may bo de- tained until tolls arc paid. By 12 Vic, c 4, § 1, schedules of maximum tolls annexed I to 9 Vic, c 37, are repealed — § 2, and the schedules to this act are substituted instead thereof, and to have the same efect as if the schedules to this act had been annexed to the [former act [9 Vic. c. 37]. § 5. The public road from Dun- Idas to Waterloo is vested in the crown, and placed under the ■control of the commissi ucrs. By 12 v., c. 5, § 12, the Governor in council is authorised |to enter into arrangements with any of the municipal or 87 'W .'»'■;! ill' ■;1 ;. MrfM :,(;.'■': il »• ,,' ''I' i;1: 690 VtlflUc S2lQtl&»« district councils, or other local corporations or authorities («) or with any company in Lower or Upper Canada, incorporated for the purpose of constructing or holding such works or works of a like nature in the same section of the province, for the trjinsfer to them of any of the public roads, harbours bridges or public buildings, which it may be found more convenient to place under the management of such local authorities or companies; and on the completion of such arrangements, to grant for ever, or for any term of years, all or any such roads, harbours, bridges or public buildings, to the district or municipal council or other local authority or company with whom such arrange- ment may have been made. §13. Such grant to be effected by order in council ; and nothing in this act, or in any order in council, shall exempt any person from punishment or penalty imposed by any act or law, or under the authority of any act or law, for any offence relative to any public work or works ; but so much of any such penalty as would otherwise belong to the crown shall (if so provided in the order in council) belong to the grantee under such order ; othor>viso it shall belong to the crown. By 13 & 14 v., c. 13, the commissioners are autborised to assume lands in the neighbourhood of any public work, vith the like powers conferred by 9 V., c. 37. By 13 & 14 v., c. 14, intituled " An Act to extend tlio acts for the formation of companies for constructing road? and other Avorks, to com])anie3 formed for the purpose of acquiring public works of like nature," after reciting that it was expedient to extend the benefit of the acts hereinafter mentioned to companies to be formed for the purpose of acquiring and holding public works or property, under tlio provisions of the act authorising the transfer of such works' or property to any such company, or to other parties therein designated, it is enacted by § 1 — that, subject to the pro- visions of this act, the 12 V. c. 56 {ivhich relates to Loiocf Canada), and the act 12 V., c. 84 (/>) {tvhlch relates tolfppcr \ Canada), shall be and arc hereby extended, and shall apply I to any company to be formed for the purpose of acquirinA for ever, or for any term of years, any of the public road?, harbours, bridges or public buildings, which may be lawfully I (a) The 14 & 15 V., c. 57, ^ 1, removes doubts existing whether unlcr I the 12 v., c. 5, municipalitieB could acquire any such public worlds if| Bituate beyond their limits. (6) The 12 v., c. 84, htts been repealed by IC V., c. 190, saving n!!| companies incorporated under the same, which shall in future bo subject tol the provisions of said act 10 V,, c. 100. But the hitter act coutain;i:)| provision for acquiring public works hereafter. m^it WioV^n. 691 I'M mI?8 wUia future bo 8ubjeca tranaferred to any such company under the act 12 V., c. 5, or for the purpose of so acquiring and of improving or extending any such public work, as fully and effectually as if such purpose were expressly enumerated in the said acts firstly and secondly mentioned : provided always, that notwithstanding any thing in either of the said acts, no com- pany to be formed under this act shall be liable to be opposed or prevented from acquiring such works, or from using and working the same, by any municipal council or other party, nor shall the company be bound to make any re- port respecting sucli work, to any municipal authority; nor shall such municipal authority, or the Crown, have the rjfht of taking such work at the end of any term of years ; but the provisions of the said acts respectively, as to such opposition and prevention, or to such report, or to the taking of the works or property of the company by any municipal authority, or by the Crown, shall apply only to the extension of the same beyond the local limits of the work when transferred to the company ; nor shall any- of the provisions of the said acts which shall be inconsistent with any lawful provision or condition in any order in coun- cil legally made under the act thirdly mentioned, or with the rights transferred by the same, apply to the company to which such order in council shall relate ; but nothing herein contained shall prevent the reservation in any such order of the power of taking any such work, with or without any 8iich extension, and by the Crown, or any municipal authority, on the terms and conditions therein to be expressed : pro- vided always, that § 35 of the first cited act, and § 37 of the act secondly cited, shall apply to roads, bridges and other works transferred to any company, and to the company to whom the same shall have been transferred in relation to such roads, bridges and works. § 2. The tolls to be taken by any such company on any such public work, not being a road, shall not be regulated by the provisions of the acts kitly and secondly mentioned, but by 12 V., c. 4, unless some lower maximum be fixed by order in couneil, transffer- ring the work to the company ; and the tolls to be levied on any road, or any extension of such public works, shall be rcf jlated by the acts firstly and secondly mentioned, in the h encc of any special provision for lower rates in the order mcil aforesaid. § 5. No road, bridge or public work, bhall tie transferred to any company without the reservation wer on the part of the government to resume the same at nytime after the expiration of a period which shall not xceed tm years^ on the conditions to bo embodied in the krder ia council ; and no such road or public work shall be ■,l '■';' :\>' I i; '^ iMlw.'- wi.i'' '■* .•■'■.'3 -r ^■■■■^:m 692 ^uWt JMovU^. leased to any company for more than ten years, nor sold or leased unless security be given for an amount equal to ten per cent, of the actual value in case of sale, or estimated value in case of lease ; and in every instance one of the conditions of sale or lease shall be that such work shall be kept in thorough repair, to be decided on by the engineer of the Board of Works. By 14 & 15 v., c. 37, entitled an act to remove doubts as to municipal corporate bodies acquiring public works without the limits of such municipalities, such doubts are, by § 1 removed. But the remainder of this act is repealed by If) v., c. 190. § 6. Enacts that every such local corporate body or au- thority shall keep every such road in good and sufficient repair, and upon default thereof, shall and may be indicted at any court of general quarter sessions of the peace, or other court of superior jurisdiction of any county or union of counties, within or along the boundary of which such road shall be out of repair, and upon being convicted, the court before which such conviction shall be had, shall direct sueli local corporate body or authority to make the necessary repairs, for the want of which such prosecution shall have been commenced, within such time as to the court shall seem reasonable ; and that in case such repairs shall not be com- pleted within such time, the county council of the locality within or along the limits of which the road may be situate in part or wholly, shall and may cause the necessary repairs to be made, and the amount expended on such repairs, toge- ther with twenty-five per cent, increase thereon, shall and may be recovered from the corporate body or authority o^Yn• ing the road and so neglecting to make such repairs, by action of debt in any court of competent jurisdiction. RioU at Public Works. By 8 v., c. 6, § 1, this act to come in force, in any locality where public works are being carried on, upon the Governor's proclamation, and to cease upon the like procla- tion. § 2. While this act shall be in force, no person era- ployed upon any canal or other public work, shall have in liis possession or under his care any gun, blunderbuss, pistol or other fire-arm, or any stock, lock, barrel or any other part of such gun, &c., or any bullets, sword, sword-blade, bayonet, [ pike, pike-head, spear, spear-head, dirk, dagger or other instru- ment for cutting or stabbing, or other arms, ammunition or I weapon of war, under a penalty of not less than 10s., nor more than 20s. for every such weapon found in his posses-j sion. § 3. Within the time appointed in such proclama- Vyr~" ' '■iC'l ars, nor sold or ant equal to ten eatimated value )f the conditions shall he kept in engineer of the remove doubts as \ie •works -without uhts are, by § 1, 9 repealed by Ift orate hody or au- rood and sufficient d may he indicted s of the peace, or county or union of of which such road onvictcd, the court td, shall direct sucli na'kc the necessary secution shall have the court shall seem Irs shall not be com- )uncil of the locality road may he situate be necessary repairs n such repairs, toge- e thereon, shall and dy or authority o\vn- ,kc such repairs, by jurisdiction. b. mc in force, in ay ■ carried on, upon tic upon the like procla- force, no person em. Lrk, shall have mk llunderhuss, pistol <). lei or any other parte Uord-hlade, bayonet, f dagger or other instvi- 'arms, ammunition or ptTss than 10s., r^or [n found in his posses- U in such proclavna-' 39uiilfc WiovUu. 693 tion, every person so employed shall bring and deliver up to some magistrate or commissioner, every such weapon as aforesaid, taking a receipt for the same. § 4. Such weapons to be returned when the act shnll cease to be in force. § 5. Weapons unlawfully kept may be seized by any justice, com- missioner, constable or other peace officer and forfeited to her Majesty. § 6. Concealment of any such weapons to be subject to a penalty of not less than £10, nor more than ;£25. § T. Any justice or commissioner may, on the oath of a credible witness that he believes any such weapon is in the possession of any party contrary to this act, issue a war- rant to search for and seize the same : and in case admission to any such house or place cannot be obtained within a rea- sonable time after demand, such constable or peace officer, and person in his aid, may enter the same by force, by day or by night, and seize such weapon : and unless the party do, within four days, prove to the satisfaction of such justice or commissioner that the weapon so seized was not in his possession or in his house contrary to the true spirit of this act, the samo shall be forfeited to her Majesty. § 8. Per- sons carrying weapons within the limits or locality, when this act shall be in force, may be ovrested and detained and committed for trial for a misdemeanor, unless he shall give sufficient bail for his appearance. § 0. Monthly returns to be made of all weapons delivered up. § 10. Weapons for- feited to be sold and the proceeds paid over to the receiver- generah § 11. Limitation of actions. § 12. Penalties under this act may be prosecuted for and recovered before any two justices of the locality, who may, on complaint on oath, issue their warrant for bringing the oflfender before them, and if convicted on fhc oath of one witness other than the informer, or by his own confession, the justices shall impose such penalty. § 13. The Governor authorised to raise a mounted police force for better carrying this act into effect. § 14. Officers to bo appointed by the Governor, and to be justices of the peace w here the act shall be in force. 15. The mounted police force to be declared to be con- stables. § 10. Expenses of carrying this act into effect to I be defrayed by the Board of Works. § 18. Act to continue [in force two years. By 14 & 15 v., c. 70, § 1, the above act may be extended [to places where works have been undertaken by private [companies, but to cease on proclamation. The original act was continued by several acts, and lastly, |bythc20 v., c. 16, to the 1st January, 1858, and to the lend of the next session of the legislature. ■fl ,; vtvffl W iilf'W 11 .,;?. If I i II ",-11' ■•■'1 C94 ]9tinfsiSment« PUBLIC WORSHIP. By4&5V., c. 27, § 81, if any person shall wilfully disturb, interrupt or (Us(i[uiot any asscmbl-'ge 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 tlic peace, on oath of one or move credible witnesses, forfeit and pay any sum not exccedinc £>5 as such justice shall think fit ; § 32, to bo 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 bo committed for any term not exceeding one month, unless the costs and fine shall be sooner paid. § Sg. Appea' lies to the sessions. PUNISHMENT. Imdcr the 4 ach offender uvaybe lin Us clScUou to reduce lites imprisonment in tbe tried cither in the district, county or place where such offender shall be *'ound at large, or at the district, county, or place in or at which sentence or order of transportation or banishment was passed or made. § 20. In any indict- ment or information against any oft'ender for being at large in this province, contrary to the provisions of this act, or of any other act hereafter to bo in force in this province, it ifhall be sufficient to allege the sentence or order of transpor- tation or banishment of such offender, without alleging any indictment, information, trial, conviction, judgment, or other proceeding, or any pardon or intention of mercy, or signifi- cation thereof, of or against, or in any manner relating to such offender. § 27. The clerk of the court or otlicr ollicor having tlio custody of the records of the court, where any ifuch sentence or order of transportation or banishment shall have been passed or made, or his deputy, shall, at the vcfiuest of any person, on behalf of her Majesty, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of any indictment, information and conviction of such offender, and of tiie sentence or order for his or her transportation or hanishmcnt (not taking for the same more than tlie sum of five Hhillings) ; which certificate shall be sufficient evidence of the conviction and sentence, or order for the transportation or banishment of such offender; and every such certiRcatc 5hall be received in evidence upon proof of the signature of the person signing the same. Imprisonment. — § 28. Where any person shall bo con- victed of any offence punishable under this act, for which imprisonment may be awarded, it shall bo lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions oftiie term of such imprisonment, or of such im])risonmcnt mtli hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. § 21). AVhenover sentence shall be passed for felony on a person already im- prisoned under eentence for another crime, it shall be lawful tor the court to award imprisonment for the subsequent of- fence, to commence at the expiration of the imprisonment, to which such person shall have been previously sentenced, although the aggregate term of imprisonment may exceed the terra for which such punishment could be otherwise mrdcd. Second conviction. — § 30. If any person shall be convict;jd j«fftny felony not puniahablo with death, committed aftet 4 ,i;i ' .. M'M ., II fei] :<-■■■■ li-V I '1.1' ,k:,,:/«-H| j9anf0f|tifent previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be imprisoned at hard labor in tlie provincial peni- tentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years ; and in any indictment for any such felony, committed after a previous conviction for felony, it shall be sufficient to state that the offender was at a certain time and place convicted of felony without otherwise describing the previous felony, and a certificate containing the substance and effect only (omitting the for- mal part) of the indictment and conviction for the previous felony, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court, where ^he offender was fiiiet convicted, or by the deputy of such clerk or officer, for which certificate a fee of five shil- lings and no more shall be demanded or taken, shall upon proof of the identity of the person of the offender be suffi. cient evidence of the first conviction, without proof of the sig- nature or official character of the person appearing to have signed the same ; and if any such clerk, officer or deputy shall utter any false certificate of any indictment and conviction for a previous felony, or of any sentence or order of transpor- tation or banishment, or if any person other than such clerk, officer or deputy, shall sign any such certificate as such clerk, officer or deputy, or shall utter any such certificate Avith a false or counterfeit signature thereto, every such offender shall be guilty of felony, and being lawfully convicted, shall be liable at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary, for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. Pillory abolished. — §31. That from and after the com- mencement of this act, judgment shall not be given and i awarded against any person or persons convicted of any offence that such person or persons do stand in the pillory, any law, statute, or usage to the contrary notwithstanding; provided that nothing herein contained shall extend, orl bo construed to extend, in any manner to change, aher,j or affect any punishment whatever which may now be bylawj inflicted, in respect of any offence, excepting only the punish-r ment of the pillory. Oommenccment of Imprisonment. — That the period of im^ prisonment in the provincial penitentiary in pursuance of any sentence passed under this act, or under any other act re lating to the punishment of offences by confinement and imj prisonment in the provincial penitentiary, shall be held to shall, on such icvetion of the provincial pern- years. or to be confinement for ^ any indictment vious conviction lat the offender of felony without and a certificate, (omitting the for- ^ for tlic previous lerk of the court, ■cords of the court, '. \)y the deputy of e a fee of five shil- • taken, shall upon ,e offender be suffi- out proof of the 8ig- , appearing to have fficer or deputy shall acnt and conviction 3r order of transpoT- ,hcr than such c evk, ificate as such clerk, ch certificate Jith a every sucl. offender uUy convicted, shall tobehnprisonedat iW, for any term not isoned in any ote term not exceeding the com- "yen and ! l&nni&^mtnu 697 commence from the period of passing such sentence, whether the convict upon whom such sentence shall be passed shall bo removed to the said provincial penitentiary forthwith, or be detained in custody in any other prison or place of confine- ment previously to such removal. Under the 4 and 5 V., c. 25% Simple Larceny. — § 3. Any person convicted of simple larceny, or felony punishable as simple larceny, shall (except as otherwise provided) bo liable, at the discretion of the court, to be imprisoned at hard labour in the provincial peni- tentiary for any term not less than seven years, (a) or to bo imprisoned in any prison or place of confinement for any terra not exceeding two years. Felony/ or Misdemeanor. — § 4. Any person being convic- ted of felony or misdemeanor punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months m any one year, as to the court shall seem meet^ and after ,U not be gvv( ins convicted any %andinthepiUori,, Tarv notwithstamling, S shall extend or \er to change, ate, Ichmaynowhcbylaj fpti^g only the puuisM That the period ojij win pursuance clan 'der any other actr^ Kfconfinemeiitand^ llary,BhaUheheUt The punishment for specific offences mentioned in this act bs been already stated under the various titles embracing such offences. Under the 4 jf 5 F., c. 26. Malicious Injury to Property. — The punishment for the several classes of offence enumerated in this act will be found under their respective titles. Imprisonment with Hard Labour. — § 27. Any person eonvicted of any indictable offence under this act for which imprisonment may be awarded, the court may sentence the offenders to be imprisoned, or to be imprisoned and kept to krd labour in the common gaol or house of correction ; and may also direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, I or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, in the discretion of the court. 5 V c. 27. Under the A ijr Administering Poison. — § 9. Whosoever shall administer lor ciusc to be taken by any person, any poison or other de- («) But see 6 V., c. 5, ^ 2, which enables |f«lace the period to three ycjirs. 88 the court in its discretion to ')•;; ' 'i-! 'i! 'M:M ',r '.r ^M \4 , Iff Af ill; 'ih 698 )9unf«{iment* Btructivc thing, or shall stab, cut or wound any person oi* «hall by any moans whatsoever cause to any person anv bodily injury dangerous to life, with intent to commit murder shall be guilty of felony, and being convicted thereof shall •Buffer death. Attempt to Murder. — § 10. Whosoever shall attempt toad- minister to any person any poison or other destructive thing, or shall shoot at any person, or shall by drawing a trigger or in any other manner, attempt to discharge any kind of loaded anus at any person, or shall attempt to drown, suffocate, or strani^le any person, with intent to commit the crime of murder, shall although no bodily injury shall be effected, be guilty of felony ; and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial {)enitentiary for the term of his natural life, or for any termnot ess than seven years,(rt) or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. Cutting and Maiming. — § 11. AVhosoever shall unhuvfully and maliciously shoot at any person, or shall by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut or wound any person, with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some otlicr grievous bodily harm to such person, or with the intent to resist or prevent the lawful apprehension or detainer of any person, shall bo guilty of felony, and boing convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, (a) or to be imprisoned in any other place of confinement for any term not exceeding two years. Uning Explosive or Corrosive Matter. — § 12. Whosoever ahall unlawfully and maliciously send or deliver to, or cause to bo taken, or received by any person, any explosive sub- stance, or any other dangerous or noxious thing, or shall oast or throw upon or otherwise apply to any person, any corrosive fluid, or other destructive matter, with intent to burn, maim, disfigure, or disable any person, or to do some j other grievous bodily harm to any person, and whereby any j person shall be burnt, maimed, disfigured or disabled, or re- ceive some other grievous bodily harm, shall be guilty of felony, j and being convicted thereof shall be liable, at the discretion of the court, be imprisoned at hard labour in the provincial] penitentiary for the term of his natural life, or fi:r any termj not less than seven years, (a) or to be imprisoned in anyotherj (a) See note (a) page 697. 39unf»!imenl* wa any person, ov my person any commit tnnrAer, ed tliercof shall i\\ attempt to ad- tructivc thing, or g a trigger or in nd of loaded arms "ocatc, ov strangle of murder, shall, 3 guilty of felony; , at tlie discretion ,v in the provincial or for any term not in Jiny other prison :cecding two years. cr sliall unlawfully shall by drawing a ,t to discharge any shall stab, cut or the cases aforesaid or to do some other Lh the intent to resist aincv of any person, ricted thereof, shall to be imprisoned at for the term of his ,, seven years, (a) ov confinement for any —§12. Whosoever /deliver to, or cause any explosive sub- cious thing, or shall ,• to auv person, any ^ttcr, with intent to Icrson, or to do some on, and whereby any M or disabled, or re- 1 [all be guilty of felony, ■ble, at the discretion 3oJr in the provincial I life, or f.r any term! .prisoned in any other prison or place of confinement for any term not exceeding, tffo years. Abortion. — § 13. Whosoever, with intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to bo taken by her any poison or other noxious thing, or shall unlawfully use any insti'ument or other means whafc- soever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for the t ^rm of his natural life, or for any term not less than seven years,^cT) or to bo imprisoned in any other prison or place of confinement for any term not exceeding two years. Jlomieide.— § 27. No punishment shall be incurred by any person avIio shall kill another by misfortune, or in his own defence, or in any other manner withot^ 'elony. Accessories. — § 35. Every principal in the second de- cree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable ; and every ac- cessory after the fact to any felony punishable under this act, shall, on conviction, be liable to be imprisoned for any term not exceeding two years. Imprisonment. — § 30. Wlicn any person shall be convicted iif any offence punishable under this act, for which imprison- ment may be awarded, it shall bo lawful for the court to sen- tence the ofi'ender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correc- tion, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such im- prisonment with hard labour, not exceeding one month at liny one time, and not exceeding three months in any one one year, as to the court in its discretion shall seem meet. Assault. — § 37. On the trial of any person for any of the oiTcnces hereinbefore mentioned, for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding ; and when such verdict shall be found, the court shall have power to im- prison the person so found guilty of an assault, for any term not exceeding three years. Military. — § 38. Provided always, and be it enacted, that nothing herein contained shall alter or affect any of the lawa relating to the government of her Majesty's land or naval I forces. (a) Seo note (a) pag« 697. t^N'tfi!': t!i :'■ 'i:H ^; if ^' % t.-i (,■ --J iii" t ill 111 700 IPunffittimrtit; Pardon. — § 39. It shall be lawful for the Queen's Majesty and for the Governor, Lieutenant-Governor, or person admin! istering the government of the province, to extend the royal mercy to any person imprisoned by virtue of this act, althouf»]i he shall be imprisoned for non-payment of mone^' *'^ sonio party other than the Crown. By the 6 V., c. 6, § 1, after reciting that it w .uicnt to enable the courts before whom offenders might ue convicted in certain cases better to proportion the punishment to th guilt of the offence, it is enacted, that so much of the 4 & , v., cc. 24, 25, 26 & 27 (or of any other law), as is incon- sistent with this, shall be repealed. § 2. That for every offence for which by any of the above-mentioned acts the offender is liable to imprisonment in the provincial peniten- tiary, but may instead thereof be imprisoned in any prison for any term not exceeding ttvo years, the offender may, if convicted, be punished, in the discretion of the court, by im- prisonment in the provincial penitentiary for any tcriii not less than three years, and not exceeding the longest term for which such offender might have been so imprisoned if this act had not been passed, or by imprisonment in any other prison or place of confinement for any term not exceeding two years, in the manner prescribed by such act : provided, that this act shall not prevent such offender from bein fmnished by imprisonment in the provincial penitentiary ife, if he might have been so punished if this act had nut been passed. § 3. That for every offence for which by any of the said acts the offender might be punished by imprisonment for such term exceeding two years, such imprisonment, if awarded for a longer term than two years, shall be in the provincial penitentiary. § 4. That fur every offence fur which by any of the said acts, or by any other act or hiw, the offender might, if this act had not been passed, have been punished by transportation beyond seas, such offender may, if convicted after the passing of this act, be punished by im- prisonment in the provincial penitentiary for any term for which he might have been transported if this act had not been passed, or by imprisonment for life, if without this act he might have been punished by transportation for life. By 14 & 15 v., c. 2, § 2, it is enacted that whenever any offender convicted after this act (the Penitentiary Act) shall come into effect, shall be punishable by imprisonment, such imprisonment shall, if it be for two years, or any longer term, be in the provincial penitentiary, any thing in the G \., c. 5, or any other act to the contrary notwithstanding : provided that nothing herein contained shall prevent the reception and imprisonment in the said penitentiary of any prisoner j it vf ^ -iicnt light uc convicted mnishincnt to tli »uch of tlic 4 k , aw), as ia incon- . That for every entioned acts the jrovincial pouitcn- )ned in any prison le offender may, if f the court, by ira- y for any term not he longest term for imprisoned if this nment in any other term not exceeding such act : provided ffcnder from beip •ial penitentiary if this act had uui for which by any of ed by imprisonment ch imprisonment, if years, shall be in lor every offence for ,ny other act or law, ;n passed, have been such offender may, be punished by im- ,ry for any term for if this act had not ,, if without this act jrtation for life. d that whenever any nitentiary Act) shall f imprisonment, such ', or any longer tcrui, 'ingintheOV.,c.5, hstanding: provuled •event the reception iiaryof any prisoner] €iu«tlterr6. 701 gentcneed for any period of time by any military or militia court martial, or military authority under any nulitary act. QUAKERS. *By 49 G. III., c. 6, it is enacted that every Menonist or Tanker, in cases in wliich an oath is required by law, or upon any lawful occasion wherein the affirmation or declaration of a Quaker will by law bo admitted, shall be and is hereby permitted to make his or her affirmation 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 : " [, A. B., do solemnly, sincerely, anr^ i uiy afllrm and de- clare, that 1 am one of the Society of 'lunluTs or Mcnonisls." [fls the cane moy 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 administer an oath, may administer such affirraat'i.n or declaration. § 2. Any person making a false affirnviMon or (joclaration, shall incur the pains and penalties of perjury. § 3. No Menonist or Quaker shall by virtue of this act be ijualified to serve on juries {a) in criminal cases, or hold or enjoy any office under government. ]>y *10 (J. IV., t, 1, Quakers, Menonists, Tunkers and Moravi;ins are admit- ted to give evidence, in criminal cases, upon making an affir- mation in the following form in lieu of an oath : " I, A. B., do soloniTily, sincerely, and truly declare, tliat I ;i!n one of the Society called (luiikers, Menonists, Unilas Fral- rum, or Moravians " [(fs the cane mai/ he] And any person convicted of a false affirmation, shall incur the pains and penalties of perjury; but such persons shall uot be permitted to serve on juries in criminal cases. By the Militia Act, IS V., c. 77, § 7, all persons having certificates from the society of Quakers, Menonists, and Tunkers, or any inhabitant of this province of any religious denomination otherwise subject to military duty in time of peace, but who from the doctrine of his religion shall be averse to bearing arms, and shall refuse personal military service, shall be exempt therefrom. (a) The 10 G IV., c. 1, § .^, contained a similar provision against their serving on juries in criminal cases. But it was repealled by the 14 & 15 V., p. 65, g2. The 4y (1. III., c. C, does not appear to have been expressly reoealcd, but is no doubt in eflFect superseded as to juries by the " Jury" Act, 13 & 14 V., c. 55. m s .'1 ':\lg : I ii M ■ l!:'?'i:'-''lil !;5|i '',ii'i' r'K is vp mmif m ■ Xy m ^ IP ■\\l Ui'i" '.i »'■» ,p* ' 5p» il.t'' ifi.' '^icft''-. ^i:fl•■' «i» f !■ ■;. R' i'*1''.?ajmfi''> I 'M' ■' ' ' 'i^- S^ IJi i}w •4 ¥ 'ill C' ' ffi't"' '-5 'fi* IB- '>" J 702 KHflUlllIliy* RAILWAYS. By the 12 V., c. 28, railroad companies wlien required by the postmaster-general, the commander of H. M. forces, (^ person having the command or superintendence of the police force, shall carry the mail, naval or military forces, or militia artillery, ammunition or other stores, policemen, constables and others travelling on her Majesty's service, and place anv electric telegraph belonging to them at the disposal of her Ma- jesty's government or such officers as aforesaid ; such Horvices to be performed upon such terms as the parties may ao-rce and in case of difference, to be fixed by the Governor in council. By 12 v., c. 29, the Governor in council is autliorised to guarantee the interest on loans to any company chartered by the legislature for the construction of a line of railway not less than 75 miles in extent, on condition that the interest shall not exceed six per cent. ; that the sum on Avhicli in- terest shall be so guaranteed shall not be greater than that expended by the company before the guarantee given, and shall be sufficient to complete their road ; no such guar- antee to be given until one-half of the entire line of road shall have been completed ; that such interest be the first charge on the tolls, and no dividend declared till such interest paid; that so long as any part of the principal on which interest is guaranteoil by the province remains unpaid, no dividend shall be paid to the stockholders untd a sum ecjnal to thcc per cent, on the amount so remaining unpaid shall have been set aside from the surplus profits and paid over to the receiver general under the provisions contained in this act, as a sink- ing fund, and that the province shall have the first mortgage or lien upon the road, tolls and property of the company. By the General Consolidation Act, 14 & 15 V., c. 51, the preamble of which states " that it is expedient to establisli a general and uniform system for the construction and man- agement of the railways hereafter to be undertaken iu Canada." Be it therefore enacted, &c. [Tlie first eleven sections relate to matters connected with the construction of radways rnd corporate powers, ka. The following only arc noticed a.^ being of more general public j interest.] Highways ami Brtdgcu. § 12. That the highways and bridges shall be regulated as follows : Firstly, The railway shall not be carried along any existing highway, but merely cross the same in the line of the railway, unless leave be obtained from the proper muni- cipal authority therefor, and no obstruction of such highway hen vef\uivcd Ijy H. M. forces, or iicc of the police [orces, or militia, enien, constables ie, and place any sposal of l»cr Ma- id ; sucli services irtics may agree, >vevnor in council, il is antliorised to iinpany cliartovcd line of raiUvay not I that the interest sum on vliichin- grcatev than that irantce given, and id ; no such jiuar- re line of voa v., c. r)i,tiip :pcdient to cstaldisli istruction and man- be undertaken iu ^ tters connected wtli ,c powers, &c. J he Bnorc general public It'.^. L shall he rci^ulated [not he carried along Ithe same in the Ime Vom the proper mum- Ln of such highway ltaUUias0* 703 with the works shall be made without turning the highway, so as to leave an open and good passage for carriages, and on completion of the works, replacing the highway under a penalty of not less than j£10 for any contravention : but in cither case the rail itself, provided it does not rise above or sink below the surface of the road more than one inch, shall not bo deemed an obstruction. Secondly. No part of the railway which shall cross any highway without being carried over by a bridge, or under by a tunnel, shall rise above or sink below the level of the high- way more than one inch ; and the railway may be carried across or above any highway within the limits aforesaid. ThirdJij. The space of the arch of any bridge erected for carrying the railway over or across any highway shall at all times be and be continued of the open and clear breadth and spaoe under such arch of not less than twenty feet, and of heiglit from the surface of such highway to the centre of juch arcli of not less than twelve feet, and the descent under jucli bridge shall not exceed one foot in twenty feet. Fourthh/. Tiie ascent of all bridge* erected to carry any highway over any railway shall not be more than one foot itt twenty feet increase over the natural ascent of the high- way ; and a good and sufficient fence shall be made on each side of every bridge, which fence shall not be less than four feet above the surface of the bridge. Fifthly. Signboards stretching across the highway crossed at a level by any railway shall be erecte'I and kept up at each crossing at such height as to leave sixteen feet from tlic highway to the lower ..dgc of the sign board, and having die words, " liaihvay Crossing," painted on each side of the jignboard, and in letters not less than six inches in length ; with the requirements of inn <£10 shall be incurred. comi penalty Fi ences. 1 10. Flrsth/. Fences shall be erected and maintained on each side of the railway of the height and strength of an ordinary division fence, with openings or gates or bars therein, and farm crossings of the road for the use of tho proprietors of the lands adjoining the railway ; and also cattle ''nards at all road crossings suitable and sufficient to prevent cattle and animals from getting on the railway ; and until such fences and cattle-guards shall be duly made, the company shall be liable for all damages which shall be done by their trains or engines to cattle, (a) horses, (a) But see 20 V., c. 12, g lU, whicli proliibits citttlo running at large j upou any highway within Imlf a mile of any riiilwny crossing. m m?4 \ i,i !#■■;! '':!" :,,:' '-'viV ':';;; 1 ^■•:^ f'M II ■■'-': ■.'\m ■.:i !; " Ijt i'll ;^'' ;:■}-' , ;T|jr'Mi ' 'i'' ''■is ';'' r'i ■'!:-||i i"j : ^'-im 'V V'^'iiiiyN nli'lur ill 9 It H 704 MailUiasfit* J;t' :: ' lift. I ,■ or other animala on the railway; and after the fences or guards shall be duly made, and while they are maintained, no such liability shall accrue for any such damage unless negligently or wilfully done ; and if any person shall ride, lead or drive any horse or any other animal upon such railway, and within the fences and guards, other than the farm crossings without the consent of the company, he shall for every such offence forfeit a sum not exceeding £10, and shall also pay all damages which shall bo sustained thereby to the party aggrieved ; and no other person than those connected with or employed by the railway shall walk along the track thereof except where the same shall be laid across or along a highway. Secondly. Within six months alter any lands shall be taken for the use of the railway, and if thereunto required by the proprietors of the adjoining lands respectively, but not otherwise, the lands shall be by the company divided and separated, and kept constantly divided and separated from the lands or grounds adjoining thereto, with a sufficient post or rail, hedge, ditch, bank or other fence sufficient to keep off hogs, sheep, and cattle, to be se. ^nd made on the lands so taken, and which the company shall at their own cost and charges from time to time maintain, support, and keep in sufficient repair. Tolls. § 14. That tolls shall be established as follows, viz : Firstly. Tolls shall be fixed and regulated by the by-laws of the company, {a) or by the directors, if authorised by tlw* by-laws, or by the shareholders at any general meeting: and in case of non-payment, may be sued for and recovered in any competent court, or the agents or servants of the company may seize the goods and detain the same until payment ; and if not paid within six weeks, the conipauy shall have power to sell the whole or any part, and out of such sale, retain the tolls payable, anil J,Secal8or2V., c. -iH,4A I3 containing hucIi resciva KnUUiai^fii* 705 game by public auction, and out of the proceeds, pay such tolls and all reasonable charges for storing, advertising and selling ; the balance to be kept by the company for a further period of three months, to be paid over to the party entitled thereto ; and in default of claim to be then paid over to the receiver-general for the use of the province until claimed. Tolls may by by-laws be lowered, reduced, and raised when deemed necessary: provided that the same tolls shall be payable at the same time, and under the same circumstances upon all goods and persons, so that no undue advantage, privilege, or monopoly may be afforded to any person or class of persons. Secondly. In all cases, a fraction in the distance shall be considered as a whole mile ; and for a fraction of a ton in weight a portion of the tolls shall be laken according to the number of quarters of a ton contained therein, and a fraction of a quarter of a ton shall be considered as a whole quarter. Thirdly. A printed board or paper exhibiting all the tolls payable, and particularising the price or sum of money to be charged or taken for the carriage of any matter or thing, shall be stuck up in the office, and in all places where the tolls are to be collected, and in every passenger car, in some conspicuous place. Fourthly. No tolls shall be levied or taken until approved of by the Governor in council, nor until two weeks after two weekly publications in the "Canada Gazette," of the by-law and order in council. Fifthly. Every by-law fixing such tolls shall be subject to revision by the Governor in council : and after an order in council reducing such tolls, the tolls mentioned in such order shall be substituted for those mentioned in such by-law. §§ 15, 16 & 17, contain provisions for general meetings — the election of directors — shares and their transfer. §18, authorises municipalities to subscribe for any number of shares, or lend or guarantee the payment of any sum of money borrowed by the company from any corporation or person, or indorse or guarantee the payment of any debenture to be issued by the company for the money by them borrowed, with power to assess and levy from time to time upon the whole rateable property of the municipality a sufficient sum for them to discharge the debt or engagement so contracted, and for the like purpose to issue debentures for not less than £5 currency. Secondly. Any such debenture issued, indorsed or guar- anteed, shall be valid if signed or indorsed and countersigned by such officer or person and in such manner as shall be 89 M ■11 (Mil Mi nM''^^ ': ■i,;irfi Ik If mMw : ''I IP iMlM « :i:::r^ ■PMi |; ti: jli' '.■ fli i I'u-i , '.'. It {'ij vijt- Il-l1£(i'!?'l»fevj«,:; ¥1. ■ IH ; « *j< ;!(i;, ffii . .JV^, tff^! 706 Kafimad^fit* directed by any by-law of such corporation, and the corpo- ration seal thereto not necessary. Thirdly. No municipal corporation shall subscribe for stock or incur any debt or liability under this act, unless a by-law to that effect shall have been duly made and adopted with the consent first had of a majority of the qualified elec- tors of the municipality, to be ascertained in such manner as shall be determined by such by-law after public advertise- ment thereof containing a copy of such proposed by-la;y inserted at least four times in each newspaper printed within the limits of the municipality, or if none printed therein, then in some one or more newspapers printed in the nearest city or town thereto and circulated therein, and also put up in at least four of the most public places in each municipality. Fourthly/. The mayor, warden, or reeve being the head of such municipal corporation, subscribing for or holding stock in the company to the amount of ^00 or upwards, shall be ex officio a director of the company, in addition to the number of directors authorised by the special act. Shareholders' Liability. § 19. Firstly. Each shareholder shall be liable indi- vidually to the auditors of the company to an amount equal to the amount of his unpaid stock, but not until an execution against the company shall be returned unsatisfied. Secondly. The original| stock may be increased to any amount, but sanctioned by a vote of at least two-thirds of the stockholders. Thirdly. The funds of the company shall not be employed in the purchase of any stock in their own or any other com- pany. Actions for Indemnity. — Fines and Penalties. § 20. And be it enacted, that : Firstly. All suits for indemnity for any damage by reason of the railway, shall be instituted within six calendar months, and if there shall be continuation of the damage, then within six calendar months next after the doing or committing such damage shall cease, and not afterwards. Secondly. All persons by any means, or in any manner or way whatsoever obstructing or interrupting the free use of the railway, or the carriages, vessels, engines or other works incidental or relative thereto, or connected therewith, shall for every such offence be deemed guilty of a misdemeanor, and on conviction thereof punished by imprisonment in the common gaol of the district or county where the conviction shall take place, or in th€ provincial pe&itentiary for a term not exceeding five years. Kauuiaj^fii* 707 ind the corpo- subscribe for is act, unless a de and aclopted J qualified elec- juch manner as ublic advertise- troposed by-la^r r printed -within ted therein, then the nearest city also put up in at municipality. )cing the head of or holding stock ipwards, shall be ion to the number il be liable indi- , an amount equal until an execution latisficd. increased to any it two-thirds of tlie ill not be employed or any other com- gi Penalties. r damage by reason ix calendar months, iamage, then within or committing such pr in any manner or [ng the free use of lines or other works Ited therewith, shall I of a misdemeanor, aprisonment in the hero the conviction [itontiaryforaterm Tliirdly. All persons wilfully and maliciously, and to the prejudice of the railway, breaking, throwing down, damaging or destroying the same, or any part thereof, or any of the buildings, stations, depots, wharves, vessels, fixtures, machi- nery, or other works or devices incidental and relative there- to or connected therewith, or doing any other wilful hurt or mischief, or wilfully or maliciously obstructing or interrupting the free use of the railway, vessels or works, or obstructing, hindering, or preventin^the carrying on, completing, support- ing and maintaining the railway, vessels or works, shall be adjudged guilty of a misdemeanor, unless the offence com- mitted shall under some other act or law amount to a felony, in which case such person shall be deemed guilty of a felony, and the offenders shall be punished in like manner as persons tfuilty of misdemeanor or felony, (as the case may be) are dh-ected to be pu'^'shed by the laws in force. I'ourtlily. All tines and forfeitures imposed by this act, or the special act, (a) or which shall be lawfully imposed by any by-law, the levying and recovering of which are not particu- larly herein directed, shall upon proof of the offence before any one or more justices of the peace of the locality, either by the confession of parties, or by the oath or affirmation of any one credible witness to be administered without fee or rd, be levied by distress and sale of the offender's goods and chattels by warrant under the hand and seal, or hands and seals of such justice or justices. And all fines and for- feitures, and penalties, not otherwise directed, shall be paid to the treasurer of the company for the use thereof ; and for the want of sufficient distress, the offender shall be sent to the common gaol for the county or district, where convicted, there to remain without bail for such term not exceeding one month as such justice or justices shall think proper, unless such penalty and all expenses shall be sooner paid : but every such person may, within four calendar months after convic- tion, appeal against the same to the quarter sessions. Fifthly. All contraventions of this act, or of the special act, by the company, or by any other party for which no punishment or penalty is heroin provided, shall be a misde- meanor, and punishable accordingly. Sixthli/. All by-laws, rules and orders regularly made shall be put in writing and signed by the chairman or person pre- siding at the meeting) and shall be kept in the office of the company ; and a printed copy of so much as may relate to or affect any party other than the members or servants of the company, shall be affixed openly in all and every pas- senger car, and in all places for collection of tolls. (a) See act of Incorporation. ¥:. 1 i 'tmrn :■'!! n iilli'l il ft I ■I H :" •■'■■'■" if' '■' ^iflli' * - -''1; ■ t- m m]i 'W ' '■ :'' II !-^f ,1 ' f "' 708 um^u9». Seventhly, Copies of the minutes at any general or special meeting to be prima facie evidence. Working of the Railway. § 21. And bo it enacted, that : Firstly. Ever^ servant of the company in a paaseiiffer train, or at stations, shall wear upon his hat or cap a hadqi indicating his oflBce, and he shall not, without such badge, be entitled to demand or receive from ^ny passenger, any fare or any ticket, or exercise any of the powers of his office, nor meddle or interfere with any passenger, or his baggage or property. Secondly. The trains shall start and run at regular hours to be fixed by public notice, and shall furnish sufficient accommodation for passengers and goods. Thirdly. Checks shall be affixed by an agent or servant to every parcel of baggage having a handle, loop or fixture of any kind thereupon ; and a duplicate of such check shallbe given to the passenger ; and if such check be refused on demand the company shall pay to such passenger the sum of j£2, to be recovered in a civil action ; and no fare or toll shall be collected from such passenger, and if he shall have paid his fare, it shall bo refunded by the conductor ; and any passenger producing such check may himself be a witness in any suit brought by him against the company, to prove the value of liis baggage not delivered to him. Fourthly. The baggage, freight, merchandize or lumber cars shall not be placed in roar of the passenger cars, and if any be so placed, the officer or agent directing, or knowingly suffering such arrangement, and the conductors of the train shall be deemed guilty of a misdemeanor, and punished ac- cordingly. Fiftlily. Every locomotive engine shall be furnished with a bell of at least SOlbs. weight, or a steam whistle, which shall be rung or sounded at the distance of at least 80 rods from where the railway shall cross any highway, and be kept ringing or sounded at short intervals, until the engine shall have crossed such highway, under a penalty of £2 for every neglect, to be paid by the company, who shall also be liable for all damages by reason of such neglect. Sixthly. Passengers refusing to pay their fare, may, by the conductor of tho train and servants oC the company be, with their baggage, put out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling house, as the conductor shall elect, first stopping the train. Seventhly. All persons in charge of a locomotive engine, or acting as the conductor of a car or train of cars, who HaUUtai^fii* 709 ineral or special ^ in a passenger at or cap a badge ut sucli badge, be ssenger, any fare i of his office, nor . his baggage or I at regular hours, furnish sufRcieut [1 agent or servant e loop or fixture of 3uch check shall be eck be refused on aasengcr the sum of no fare or toll sball f he shall have paid jonductor; and any isclf be a witness in mpany, to prove tlic ■chandize or lumber asscngcr cars, and if Iccting, or knoNvingly iductors of the train r and punished ac- lll be furnished witli Istcam Vfhistle, wliicb |o of at least 80 rods Kiighway,andbckept \ntil the engine sball Llty of X2 for evorj lo shall also be habk \iieir fare, may, by of the company.be, i using no unneceasary Ir near any dwcllmg It stopping the train. ■i a locomotive engine, Un of cars, wbo shall be intoxicated on the railway, shall be deemed guilty of a misdemeanor. JEighthlt/' Any passenger injured while on the platform of a car, or on any baggage, wood, or freight car, in viola- tion of the printed regulations, posted up at the time in a conspicuous place, inside of the passengers' car, shall have no claim for such injury, provided sufficient room was fur- nished at the time. General Provisions. § 22. Enacted, 1. That the company shall not be bound to see to the execution of trusts. 2. Provision for carrying the mail, troops and military stores. 3. Account of names and residence of shareholders to be kept. 4. Map, &c., of the railway to be filed in the office of the board of works. 5. Annual account of the aflFairs of the company to be laid before parliament. 6. Provision for the forfeiture of a railway charter if the work not completed within ten years. 7. The legislature authorised to reduce the tolls. 8. The carriage of combustible goods prohibited. 9. Forging of any deben- ture or coupon, or uttering the same knowingly, or being jccessory before or after the fact to be deemed /t7c'"\ 10. Ihe company bound to make and keep in repair all fences, toads, and water courses, &c., in Lower Canada. 11. Every jpecial act to be a public act. 12. Power for the legislature to annul or dissolve any corporation formed under this act. 13. Saving of all crown rights. 14. Interpretation clause. By li) v., c. 169, § 1, if any person shall wilfully and maliciously displace or remove any railway switch or rail of tny railroad, or break down, rip up, injure or destroy any [railroad track or railroad bridge, or fence 4f any railroad or luy portion thereof, or place any obstruction whatsoever on Uv such rail or railroad track or bridge, with intent thereby to injure any person or property passing over or along such ilroad, or to endanger human life, every such offender lall be guilty of misdemeanor, and be punished by impri- mmcnt, with hard labor, in the common gaol of the territo- ial division where the offence was committed, for any period lot exceeding one year ; and if in consequence of such act any person so passing over and along such railroad lall suffer bodily harm, or any property bo injured, the me shall be an aggravation of the offence and render such fence a felony, and subject the offender to punishment by iprisonment in the penitentiary for not less than one year, ir more than two years, in the discretion of the court. § If any person shall Avilfully and maliciously displace or love any railway switch or rail of any railroad, or shall ,f)i ,ii i|-*:v:'- ■' * ?,' ' ' ' * *1 I' 710 HAUUiaj^fil. break down, rip up, injure or destroy any railroad track or railroad bridge, or fence of any railroad, or any portion there- of, or place any obstruction whatever on any such rail n railroad track of bridge, or shall do or cause to be done anv act whatever whereby any engine, machine or structure or any matter or thing appertaining thereto, shall be stoppej obstructed, impaired, weakened, injured or destroyed vitli intent thereby to injure any person or property passing over or along such railroad, and if in consequence thereof anv person Lc killed, or his life be lost, the offender shall be deemed guilty of manslaughtcjr, and punished by imprison. ment in the penitentiary for any period not more than ten years nor less than four* § 3. If any person shall ^vilfullv and maliciously do or cause to be done any act whatever whereby any building, fence, construction or work of any railroad, or any engine, machine or structure of any such railroad, or any matter or thing appertaining to the same shall be stopped, obstructed, impaired, weakened, injured or destroyed, the offender shall be guilty of a misdemeanor and punished by imprisonment with hard labor, not exceed- ing one year in the common gaol of the territorial division in which the offence was committed or tried. § 0. Ii, ^j] cases where railroads pass any draw or swing bridge over any navigable river, canal or stream, the trains shall in every case be stopped at least three minutes, to ascertain from the bridge tender that the said bridge is closed and in perfect order for passing, and in default of so stopping tiie company shall bo liable to a penalty of XIOO. § 7. The cleared ground adjoining any railway and lie. longing thereto, shall be laid down with grass or turf, am thistles and othbr noxious weeds thereon destroyed; am any railway company failing to comply witii this soctioi within twenty days after notice from the chief officer of tlii municipality, shall incur a penalty of 10s., for the use of tlii municipality, for each day of such neglect ; and it shall lawful for such chief officer to cause the same to ho dom and for the municipality to recover the expense and charci and the said penalties, with costs of suit in any civil court comfctent jurisdiction. § 8. Provision prescribing the tern on which railway companies may assume lands of the cro on the line of railroad, and the conditions on which the cc pany may carry their railway across any canal, riversi navigable waters. § 9. Railway companies authorised construct branch railways on certain conditions. By 19 & 20 v., c. 11, § 1, any wilful or negligent col travention by any officer, servant or person employed hy a: company, of any by-law or regulation thereof, whereby ai ' il ixnimusn. 711 I '; ; 1(1 c\iarg( ed injury to person or property shall bo incurred or subjected, shall be a misdemeanor, punishable, on conviction, by fine or imprisonment. § 2. And if no injury actually done, then w a penalty not exceeding 30 days' pay, nor less than 15, fecoverablo with costs before any one justice. § 3. The company authorised to impose penalties on its officers and gervants, of not less than 30 days' pay, for contravention of any such by-law. Malicious Obstruction. — By 18 V., c. 92, § 32, if any nerson shall wilfully and maliciously put, cast or throw upon or across any railway, any wood, stone or other matter or tiling or shall wilfully and maliciously take up, remove or folace any rail, sleeper or other matter or thing belonging to any railway, or shall wilfully and maliciously turn, move Dr divert any point or other machinery belonging to any railway, or shall wilfully and maliciously make or shew, jiide or remove, or omit to make or shew any signal or light upon or near any railway, or shall wilfully and maliciously Jo 01" cause to be done, or omit or neglect, or cause to bo omitted or neglected any other matter or thing, with intent to obstruct, upset, overthrow, injure or destroy any engine, tender, carriage or truck using such railway, or to endanger tk safety of any person travelling or being upon such rail- Kav, any such oftender shall be guilty of felony, and being pvicted thereof, shall be liable, at the discretion of the tourt, to bo imprisoned in the provincial penitentiary for any lerninot less than three nor more than seven years. Mmi or throiving against anij Carriage, Tender, ^c. 33. if any person shall wilfully and maliciously cast, ow, or cause to fall or strike against, into or upon any riace, engine, tender or truck used upon any railway, iv wood, stone or other matter or thing, with intent to idanfcr the safety of any person being in or upon such irriace, engine, tender or truck, every such oftender, being invictcd thereof, shall be guilty of felony, and shall be iWe, at the discretion of the court, to be imprisoned in the ivincial penitentiary for any term not less than three nor ire than seven years. haling Railicaif Tickets. — § 36. Any person who shall al any ticket or order for any free or paid passage on any ikay, or on any steam or other vessel, shall be deemed ilty of felony, an'd on conviction thereof shall, in the dis- ition of the court before whom such oftender shall be tried, liable to imprisonment in any common gaol or prison, for period not exceeding two years, with or without hard 'orging the same, — § 37. Any person who shall know- lii Iv % y^' I , > f!V» :))'.,. ■1#:t;' W. i'-.^iJ jj(|::J -fll :|||'; U: rM: .1-, ).,.'. II; xi;- ' 712 isiuimupu^ ingly forgo or utter, knowing the same to be forged, any such ticket or order, as in the next preceding section men- tioned, with intent to defraud any other person, Bhall be deemed guilty of felony, and on conviction thereof shall in the discretion of the court before whom such offender is tried bo liable to imprisonment in the provincial penitentiary foj a period not exceeding three years. Obtaining Passage by False Tickets. — § 38. Any person who shall by means of any false ticket or order, fraudulently and wilfully obtain or attempt to obtain any passage on an' railway or in any steam or other vessel, shall be deenici guilty of a misdemeanor, and on conviction thereof, shall ii the discretion of the court before whom such offender is tried bo liable to imprisonment in any common gaol or prison with or without hard labor, for any period not exceeding i^ months. Arrest of Offenders. — § 40. It shall be lawful for any person whatsoever to apprehend any person who shall be found committing any gffence against the provisions of this act, and to convey him or deliver him to some constable or other person in order to his being conveyed as soon as con venicntly may be, before a justice of the peace, to be dealt with according to law. Assaulting party arresting. — § 41. Is by this clause made a misdemeanor, and the offender liable to he imprison od, with or without hard labor, for any term not exccedini two years. By 20 v., c. 35, the words " openings, gates or bars in § 13 of 14 & 15 V., c. 51, to include sliding gates, coi monly called hurdle gates. Accidents on Railways. By 20 v., c. 12, (Act for the better prevention of ara dents on railways,) § 1, the board of railway commiss ers under 14 & 15 V , c. 73, to discharge the duties scribed by this act. § 2. Inspectors (not exceeding thre to be appointed by the Governor, whose duties shall be froi time to time to inspect railways, with power to use railwJ telegraphs for the purpose of communicating with raikJ officials ; any operator refusing to obey orders, to forfeit I each offence <£lO. § 3. Any person wilfully obstructing i inspector in the execution of his duty, on conviction befori justice, to forfeit and pay for each offence XIO, and in ( fault of payment, to be imprisoned for any period not exeei ing three calendar months. § 4. No railway to be ope^ until notice given to the board of commissioners. § 5. D der the penalty of £50 for every day, until such notice gij to be forged, any iing section meu- f pei*80ii, ebaUbc 1 thereof shall, in ;h offender is tried, al penitentiary for r liable to be imprisonj amy term not exceeding □tt ^tter prevention of ace of railway coinmissioi ischargo the duties H rs (not exceeding thre' hose duties shall be fto ith po^er to use raiW nunicating ^ith nM )bey orders, to forfeit! ,n wilfully obstructing V on conviction Mori ; offence XIO, and in. •or any period not exce , Korailv?aytol)eopc commissioners. §0'' \y, until such notice git Uuimumn. 713 and expired. § G. Railway commissioners, upon the report of the inspector against the opening of the road as danger- ous, may, with the sanction of the Governor in council, order the postponement of such opening ; and if opened contrary to such order, the company to forfeit £50 a day. § 7. The Governor, upon the report of the board, may authorise and require the company to construct and fix permanent bridges, or substitute such bridges in the place of swing, draw or moveable bridges : under the penalty of £f)0 a day for using such swing, draw or moveable bridges. § 8. Any bridge, tunnel, locomotive or carriage condemned by the inspectors must be made sufficient by the company. § 9. If, in the opinion of any such railway inspector, it shall be dangerous that trains or vehicles should pass over any particular rail- way, or any portion of a railway, until alterations, substitu- tions or repairs shall have been made thereon, or that any particular car, carriage or locomotive should be run or used, it shall be lawful for the inspector forthwith to forbid the running of any train or vehicle over any such railway or portion of railway, or the running or using of any such car, carriage or locomotive, by notice in writing to the jjrcsident, managing director, secretary or superintendent of the com- pany ; and the inspector shall forthwith report the same to the board of conunissioners, who, with the sanction of the Governor in council, may either confirm, modify or disallow such act or order of the inspector. And the said board of commissioners may, with the sanction of the Governor in conncil, limit the number of times or rate of speed of running nf trains or vehicles upon such railway or portion of railway, until such alterations or repairs, as they may think sufficient, jhall have been mjide ; and for every act of non-compliance therewith, the company shall forfeit to her Mnjcsty the sum of, £500. § 10. The company to use the best apparatus for communicating between conductors and engine drivers, and for stopping or disconnecting cars, and for securely fixing seats in cars : and shall make proper by-laws and regula- tions for the conduct of their officers ; under the ])enalty of £50 for every day's default herein. § 11. Certain powers vested in railway commissioners with respect to any railway not already commenced, crossing public highways on a level. ) 12. Foot passengers to use the foot bridge, if provided for that purpose, at level crossings. § 13. In case of any serious accident, attended with serious personal injury to or I upon any railway, notice thereof required to be given by the company to the board of commissioners within 48 hours, under the penalty of £50. § 14. Returns of accidents on railways to bo made within ten days after the first days of 90 m 'fWM umn '•: ' 'i t' ill iW !*!» J (■ -If. ! ,1.., ;!r '-'* I' '■ '1- l!i mm I w 'i :f ':■ 11 tin i , ; ^^^ ■dJ.i/frt|^iu,;'l . - 1 ■■ii ; : .....IT hi':" i-:^ '-'i' W'' I .^'it^i! w Bt"; ^mmi 714 H«tie* January and July every year, by the company, to the board of commissioners, under oath : also of existing by-laws, rules and regulations. And if not made within the times pre. scribed, the company shall forfeit ^25 for every day's neg- lect. § 15. Provisions of the 19 & 20 V., c. 11, to apply to the contravention of any order or notice of the commis- sioners by oflScers and servants of the company. § IG. No horses, sheep or swine or other cattle shall bo permitted to be at large upon any highway within half a mile of the inter- section of any highway with any railway or grade, unless in charge of some person to prevent their loitering or stopping on such highway at such intersection: all such cattle so found at large may be impounded by any person finding the same, in the nearest pound to the place, and there detained subject to the like regulations as to the care and disposal thereof as cattle impounded for distress on private property and no person whose cattle shall be killed by any train at such point of intersection shall have any action against any railway company in respect thereof. § 17. No inspection under this act shall relieve the company from any general liability or responsibility. § 18. All crossings at every road and farm to be sufficiently fenced on both sides. § 19. Railway inspection fund provided for. § 20. Recovery of penalties. RAPE. Of Rape in General. Rape signifies the carnal knowledge of a woman forciblv and against her will, and above the .ige of ten years, and was felony at common law. — 2 Inst. 180. But by statute S Edw. I., c. 13, it was made only a misdemeanor. After- wards, by Stat. 13 Edw. I., c. 34, it was made felony a^ain' and by stat. 18 Eliz., c. 7, § 1, was made capital. By § 4 of the latter statute, it is also enacted, that if anv person shall unlawfully and carnally know and abuse anv woman child under the age of ten years, every such unlaw- ful and carnal knowledge shall be felony. In which case the consent or non-consent is immaterial ; as by ren- ;. her tender years, she is incapable of judgmc ^ a' discre tion.— 4 Bl. 212. The offence of rape is no way mitigated shewing thstl the woman at last yielded to the violen , if sub her| consent was forced, by fear of death or of duress- 1 Haw. 108. Nor is it anjr excuse that the woman is a common prostitute ; for she is still under the protection of the law, and may not be enforced. — 1 Ilcrw. 108 — nor that she con- sented after the fact — Ibid. It is said by Mr. Dalton, that i ay, to tho board ig by-UwB, rules L the titnea pre- every day's neg- , c. 11, to apply c of the commis- pany. § 16. No 11 be permitted to mile of the inter- »r grade, unless in tering or stopping all such cattle so person finding the nd there detained, care and disposal a private property. Q^\ by any train at action against any s 17. No inspection ,y from any general jssings at every road both sides. § 19. § 20. Recovery of Hour* 715 i7. I of a -woman forciWv of ten years, and Vf us But by statnte '^ misdemeanor. After- [s made felony again; ,de capital. , enacted, that it any 1 know and abuse any! irs every such unlaw- elony. In which case .rial ; as by rc>n-i> '} judgm. ^a- discre- rated ahewingthatl fvioleu - if s«;\^« lor of duress- I Haw.\ 5 voman is a common 1 protection of the lav,| (08— nor that shew lbyMr.DaUon»that ^ woman, at the time of the supposed rape, do conceive with child} by the ravishor, this is no rape ; for (ho 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 subsequent consent, but also because, if it were necessary to shew that the woman did not conceive, the offender could not be tried until such time as it might appear whether she did or did 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 no law. — 1 S. S. 731. Evidence in Rape. Lord Coke, defining carnal knowledge, says, there must be venetratio — that is, rem in re. ; but the least penetration maketh it carnal knowledge. — 3 Inst. 59, 60 ; East. P. C. 437. There must be an emissio seminia; (a) therefore in Hill's case, where the jury found the prisoner guilty, but said they (lid not find the emission [for, from interruption, it appeared probable that that was not effected], a great majority of the judges held that both penetration and emission were neces- sary, but thought that the fact should be left to the jury. — HUh case^ P. 0. 439. From Hill's case it appears that tlie fact of penetration is prima facie evidence of emission : 50, where the prisoner remained on the body of a woman as long as he pleased, without interruption, this was held suflBci- ent evidence to be left to a jury, of an actual rape — Harm- md'g case, E. P. Q. 440 ; S. P. Kelly's case, Bodmin, 1815, 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 i convict the prisoners ; and that the jury might collect the 1 fact of emission from other evidence. — Fleming and Wind- I ]m% case, 2 Leach, 855. The party ravished may give evidence on oath, and is in Iff a competent witness ; but the credibility of her testi- imony, and how far forth she is to be believed, must be left Ito the jury, and is more or less credible, according to the itircumstances of facts that occur in the testimony. — 1 H. H. For instance, if the witness be of good fame ; if she mmtly discovered the offence and made pursuit after the ^Sender ; shewed circumstances and signs of the injury ; if lie place where the offence was committed was remote from kabitation; if he offender ^«c2 for it : these and the like are (a) Not seoesMry under the 4 & 5 Y., o. 27. '1 i .;*-, I \ f,:'' >f ■^r liiii ¥u,'m :ii :.' '! '(■ n I'll, • ■ K 3 ;» '11 li k J t' : 'S • 1 ' I iifi /■ * ' I M ' . !r:::r:,. ■!,!^''i I' J'rJ Ill '^^^^ dorsecl on such deed, &c. § 11. In case of the death or resi. dence abroad of the witness to any deed or will, proof may be made by the grantee, &c., before the justices in general quarter sessions in any district, of the execution of such in. strument, and upon a certificate signed by the chairman and witnessed by the clerk of the peace, that the majority of the magistrates assembled were satisfied therewith, such deed or instrument may bo recorded. § 12. Wills or probates re- corded within twelve months after the death of the testator to be valid and eftectual against subsequent purchasers. 13* Judgments at law may be registered, and bind lands in the same way as judgments rfoc^ywcf^eti in England. § 14. Deedj of bargain and sale to bo valid without enrolment, § 15 Registry office to be open ft'om ten in the forenoon until thne in the afternoon, for the disposal of business. § 10. KcMtuij. ting the registrar's fees is repealed by 10 V., c. 187, and other fees substituted. § 17. Any person forging any certificate iin- der this act, or any affidavit, or any memorial, shall be linbleto the pains and penalties of the 5 EHz. c. 14. § 18. This act not to extend to leases for 21 years in possession. § ]',). Fjfp proof offices and vaults to be kept. §20. Registrar roniovinff from the county or becoming incapable, to be removed from office. § 21. Any registrar guilty of any undue or fraudulent practice to forfeit office, and liable to pay treble 'laiiiaffes with full costs of suit. § 22. Secretary of the province to provide register book for each township, reputed township city and town. § 23. When any registered judgment or mortgage i:^ satisfied the registrar or his deputy, on reoeiviiiff a certificate in form A. in respect to mortgages duly proved by the oath of a subscribing Avitness, in the same nianner as hereinbefore provided for the proof of deeds, from the per- son entitled to such mortgage, or the attorney of sucli person; and in case of judgments, on receiving a satisfaction pm under the seal of the court, shall write the word " discdiarged," and alfi.v his name in the margin of the register, whicdi shall I be deemed a discharge thereof. § 24. Such certificates when registered shall operate as a release of such mortgage, and re-conveyance of the mortgaged premises. § 25. Regis- ter to take an oath of office. § 20. Deputies to be also Bftorn. § 27. Not compelled to register any deed till foes paid. § 28. llecognizancc to be void at the end of twelve I months after death or surrender of office, in case of no mis-l behaviour. § 29. Seal of a corporation to be sufficientl evidence to justify registration. § 30. Governor may remove j the registry office to the chief town. § 31. Surveyor-gencralj to furnish registrar with a list of all persons to whom patentsl IXtQinivti . l*^t'!^nla. V.,c.l8T, and other nf» any certificate un- rial, shall be iiuble to 14. § 18. This act jscssion. 1 1'*. Fire llcgistrar removing to be removed from [y undue or fraudulent I pay treble damages y of the province to lip, reputed township, Mstered judgment or 3 deputy, on recoivmg lortgagos duly vvoved n the same niauner as deeds, from tl>c per- toruey of such person; i2 a sattsfadioti fim hcword^discbiuved," ^e register, -vshicli shall 24.''Such certificates -.1*80 of such mortgage, i-cmises. ^ro.W^^i- Deputies to be also iter any deed till fces^ at the end of twely« mce in case of no mfr atio'n to be suiTiclent Governor may remove k 31. Survcyor-generd »er8on8towhompatentJ| have issued within their counties, and with plans or maps of towns and townships, within twelve calendar months after application by any registrar. § 32. Provision in case of division of counties. § 33. Where a corporation or company shall sub-divide any land into town lots, it shall be lawful for such company to lodge a plan or map of the same in the rocistry office. § 34. Certain counties united for the pur- poses of registration. § 35. Interpretation clause. Schedule A. To the Registrar of the County of I, A. B., of , do certify that C. D. of , hath satisfied ill money duo upon a certain mortgage, made by the said C. 1). to mc, bearing date the day of , one tliousand eight hilndrcd and , and registered at of the clock in the fore- noon, of tlie day of following, and that such mortgage is therefore discharged. ^-■i:-"' •hvi.nosse.. (Signed) A. B. G. H. of , J By 10 & 11 v., c. 10, doubts entertained respecting the meaning of § 24 of last recited acr referred to and ex- plained. By 12 v., c. 35, § 42, the original owner of lands forming the site of any town or village mentioned in the next prc- ceilinff section, or his agent, is required to deposit in the registry office a correct plan or map thereof, certified by some hand surveyor, and by the original owner or his legal repre- sentative, within one year after the passing of this act, under Ifne penalty of £'2 10s., and the like sum every year after for such neglect, to be collected and applied in like manner aspeuuUics under 8 V., c. 58. §43. The registrar is re- Inuired to record the same, charging the same fees as in Irespect of any other document ; and to keep a separate book |(or the icgistcring title deeds of lands situate in such town |cr village. By 12 v., c. 77, § 2, proof of the execution of any deed, fill, or probate, or memorial of the same, in Lower Canada, m be made before any of the commissioners to be appoint- ed under tins act, and registrars of ccjuties are required to fejiistcr the same accordingly. By 13 & 14 v., c. (33, § 2, a judgment entered up against nyperson in any court of record in Upper Canada, after the 8t January, 1851, shall operate as a charge on defendant's inds within the county where such certificate shall be duly igistercd, and for any esta,te or interest whatever at law or equity therein. § 3, After the first January, 1851, every ■ «'ft'iK v'j! ■' i'i'; 'k:\' iliii 1. ! -^iii^ 728 KejifiKtts ®artr. riii'jll; f deed, devise or other conveyance from any original gmntee of the Crown, shall be adjudged fraudulent and void against i subsecjucnt purchaser or judgment-creditor who shall have registered his judgment, unless such deed, devise, or convey. ance be registered before such subsequent dQcd, &c. 8. The registry of any deed, &c., shall in equiti/ constitute notice thereof. By 16 v., c. 187, §1, when any city, town, townsliip. or place theretofore making part of any county in and for ^vhidi a separate registry office is or shall be kept, has been or shall be detaclied therefrom and attached to another conntv for which a separate registry office shall be kept, the registry books for such city, &c., shall bo delivered to the registrar of the county to which the same shall be attached. § 2. State- ments to be furnished by the registrar of a county to the registrar of such new county, under § 32 of 9 V., c. 84, to be accompanied by an index and certificate. § 3. Register books to be hereafter provided by the county. § 4. Each county entitled to return a member to have a registry office. §5. When a deed, will or other instrument shall embrace differ! ent lots or parcels of land situate in different localities in tlic same county, one memorial only need be filed : and onhone certificate of registration charged. § 6, repeals § 9 of 9 V, c. 34, and provides that a memorial of any such deeds, con- veyances, wills or probate, made and executed or published in | any place within Upper Canada, other than the county where I the lands lie, shall be entered and registered upon affidavit sworn before one of the judges of the superior courts, era judge of the county court, or commissioner, wherein une of the witnesses shall swear to the execution of the samoaj also of the memorial and the place where executed : and iaj case of wills, one of the witnesses to the memorial of suchl will or probate, shall swear to the execution of such me.[ morial. § 7. Memorials of letters of attorney under whicli| any deed or conveyance shall be executed may be registered! in the same manner, and upon the same evidence, as otiicrT memorials. § 8. Registrars fees to be as follows, and d more, viz : — For drawing affidavit of execution of instrument and memorial brought to be registered, if done by registrar or his deputy including swearing and all certificates thereof , For recording every deed, conveyance, will, power of attorney, or agreement including all necessary entries and certificates S. D, 2 ti G 31 ly original grantee , and void against a )r who shall luve devise, or convey. dQcd, &c. 8. The ty constitute iioficc town, townsliip, or Liity in and for ^\lllcll ) kept, has been, ov (1 to another county be kept, the registry ed to the registrar of ttached. 1 2. State- : of a county to tlic 2of 9V., c. 34, to be I S. Register books y, § 4. Each county a registry office. §5. shall embrace tVifiov- iifcrent localities in tlie be filed : and only one 6, repeals § 9 of 9 Y, f any such doeils, con- xecutedorpubliskilin 'than the county wWre cfristcred upon affidavit ic' superior courts, or a misj^ioner, wherein m\ ccutiop of the same aal •here executed: andial , the memorial of sudil execution of sucb nie-I .f attorney under wluckl .cutedmayheregisteredl same evidence, as otkff be as follows, and no| of instrument jred.if done by kvearing and all g. D,l '2 « »ce, will, power Ig all necessary ^ ^ J KeUfiCon* ^ 720 jliit in case such entries and certificates exceed 800 words then for every additional 100 words.... 8 For registering certificate of judgment 3 6 Satisfaction thereof..., ,. 2 6 For entering certificate of payment of mortgage money, including all entries and certificates thereof 3 Drawing affidavit of the execution thereof, including the swearing of the witness when done by registrar orhis deputy 3 6 por searching records relating to the title of any lot or parcpl, not exceeding four references I 3 \nd for every additional four distinct references .... 13 And so in proportion for every number of searches made. For a general search not exceeding 10 For every extract furnished by the registrar, includ- ing certificate '. 13 If exceeding 100 words, for every additional 100 words 9 § 0. Registrars to keep books of receipts of fees and make detailed returns thereof to the legislature. § 13. The following to be fixed holidays in the registry office, viz : Christmas Day, New Year's Day, Good Friday, Ash Wednesday, Easter Monday, and the Queen's Birth Day. By 18 v., c. 127, § 1, no judgment shall be a charge on lands until registered. § 3. The filing of any bill in Chancery not to be notice until a certificate thereof be registered. § I Decrees of foreclosure to be registered. § 5. Memorials of deeds, &c., executed out of Upper Canada may be registered on affidavit sworn before any judge of the superior courts of Upper or Lower Canada, or before the judge of any county court in Upper Canada, or circuit court in Lower Canada, or a commissioner in Upper or Lower Canada, or the registrar of the county whore the lands lie, or his deputy. § 6. Regis- trars required to deliver original memorials to the registrar of counties to which any city, town, or township may be attached. Default herein to be a misdemeanor, punishable by fine, and forfeiture of ofiicc. § 7. Fee for registering certificate of a suit in equity 2s. Cd. Registering certificate of decree 5s. By 20 v., c. 57, § 19, registered judgments shall cease to jcliarge lands after three years, unless before the expiration !of that period such judgment shall be rc-rcgistered. RELIGION. The Christian religion, according to high authority, is part ind parcel of the law of England. To reproach or blaspheme nt i !. " 1 ■ .iij 730 HeUflfom ifi! u:l J ill it, therefore, is to speak in subversion of the law ; and to say that religion is a cheat, mainifests plainly a wish and endeavour to dissolve all those obligations whereby civil society is pre. served, and is held to be an indictable offence at common law —M. V. Taylor, vintr. 293 ; 3 Keb. 607. By 1 E. VI., c. l' and 1 Eliz. c. 1, it is enacted, that whosoever shall revile the sacrament of the Lord's supper, shall be punished by fine and imprisonment. And by 1 E., c. 2, § 4, if any minister shall speak any thing in derogation of the book of common prayer, he shall be liable to heavy penalticf , Also by § Oof the last statute, if any person shall, in plays, songs, or other open words, speak any thing in derogation, depraving or des- pising of said book, or shall forcibly prevent the reading of it by any clergyman, or compel or cause him to read any other service in its stead, tho oflfender shall for the first offence forfeit 100 marks ; for the second, 400 ; and for the third all his goods and chattels, and moreover be liable to imprisonment for life. And by 3 Jac. 1. c. 21, if any person shall use the name of the Holy Trinity profanely or jestingly in any stage plays, interlude, or show, ho shall bo liable to a qui tarn penalty of ^610. By 9 & 10 W. III., c. 32, it is enacted, that if any person educated in, or having made pro- fession of the Christian religion, shall by writing, printing, teaching or advised speaking, deny the Christian religiou to be true, or the holy scriptures to be of divine authority, he shall, for the first offence, be rendered incapable to hold any office or place of trust ; and for the second, be rendered in- capable of bringing any action ; being guardian, executor, legatee or purchaser of lands ; r-nd shall suffer three years' imprisonment without bail. But if within four ; lonths after the first conviction, the offender appear in ope a court and publicly renounce his error, he shall be discharged that once from all disabilities. The provisions of this statute have been held to be cumulative, and therefore do not prevent tlic | offender from being indicted at common law. — Ji. v. Carlisk ? B. ^ A. 171. By 14 G. Ill,, c. 83, § 5, it is enacted, tliarl his Majesty's subjects, professing tho religion of the Ohurcli of Rome of and in the province of Quebec, may enjoy the free exercise of their said religion, su'jcct to the king's supre- 1 macy, declared and established by the 1 Eliz. over all tliel dominions and countries belonging to the imperial crown of j this realm : and that the clergy of the said church may h receive, >ud enjoy, their accustomed dues and rights, with! respect to such persons only as should profess the su religion. And by § V the following oath shall be taken byj persons professing tho said religion in place of the oath re-J KeUfifotts Socfetfetf. 731 law ; and to say sh and endeavour vil society is pre- e at common \m, BylE,VI.,c.l, er sliaU revile tl\e punished by fine 4, if any minister e book of common er. Also by §9 of Lys, songs, or other I, depx-aving or des- vent tbe reading of e him to read any shall for the first \ 400 ; and for tlie reover be liable to . c. 21, if any person Tofanely or jestingly ho shall be hable to )\V. III., c. 32, it is , or having made pro- by writing, printing, Christian religion to divine anthovity, l\c incapable to hold any icond, be r.^ndu-cd in- cr guardian, executor, A\ suffer three years' ihin four Months after i,r in open court and] discharged that once of this statute have I ore do not prevent tlie 1^^ law.— -K- V. Oi^rhsk ^ 5 it is enacted, that I Ircli'^ion of the Church ,cc,'moy enjoy the free it to the king's supre- lie 1 Eliz. over all tkl the imperial cro\vn o said church may hoiq dues and rights, ^^nljl ,ould profess the sr I oath shall be taken! in place of the oath rcj quired by the statute of Elizabeth, or any other oaths substi- tuted by any other act in place thereof. I, A. B., do promise and swear, that I will be faithful and bear true allegiance to his Majesty King George, and him will defend to the utmost of my power against all traitorous con- spiracies and attempts whatsoever which shall be made against his person, crown, and dignity, and I will do my utmost endeavor to disclose and make known to his Majesty, his heirs and successors, all treasons and traitorous conspiracies and attempts which I shall know to be against him or ony of them; and all this do I swear without any equivocation, menial evasion, or secret reservation, and renouncing all pardons and dispensa- tions from any power or person whomsoever to the contrary, so help me God. And every such person refusing to take the said oath shall incur the pains and penalties, forfeitures, disabilities, and incapabilities of the 1st of Eliz. *By 31 G. III., c. 31, § 36, it is enacted, that in all future grants of land from the Crown there shall be a specification of lands of the like quality in value to one-seventh for the support of a pro- testant c Icrgy. (a) And by *1 W. IV., c. 28, after nc .icing that douDts had been suggested that the tithe of the produce of land might still be legally demanded by the incumbent, it is enacted that no tithe shall be claimed or received by any ecclesiastical parson, rector, or vicar, of the protestant church within this province. RELIGIOUS SOCIETIES. *By the 9 Geo. IV., c. 2, § 1, after reciting, whereas various religious societies of various denominations of Chris- tians find difficulty in securing the title of land requisite for the site of a church, meeting-house, or chapel, or burying ground, for ivant of a corporate capacity to take and hold the same in perpetual succession ; and whereas it Ir ^rnedient to provide some safe and adequate relief in sucb ^;;iaes, it is enacted, that whencvei any religious congregation or society of FrcsbytcriariS, Lutherans, Calvinists, Methodists, Congre- gationalists. Independents, Anabaptists, Quakers, Mcnonists, Tankers, or Moravians, shall have an occasion to take a conveyance of laud for any of the uses aforesaid, it shall and may be lawful for them to appoint trustees, to whom and their successors, to be appointed in such manner as shall be specified in the deed, the land ret^uisite for all or any of the purposes aforesaid may be conveyed ; and such trustees and (a) The Clergy Reserves nre now, by 18 V., c. 2, tecularUcd, and tha rroceeds applicable to municipal purposes. ¥' I' ,1 I .:-ifi' it .i ■ \i 732 MtlWouu SocfetCf 0. .3 ■<, ,_. m ^m■^■^lv^mv■4'■ .11^.^^^ ■«."■» ii ! ■ * i .i-'^l' I;. 1 1 lfcV-lin^^f;.,l..> '=1 ■J , k • liil 'i' •Pf! 1 l;{ijfe|ii,-.s; : ;i . their successors, in perpetual succession, by the namo expressed in such deed, shall be capable of taking, holding and possessing such land, and of commencing and maintain° ing any action or actions in law or equity for the protection thereof, and ol their right thereto. § 2. The land to be so held not to exoeed five acres for any one congregation. § 3. And such :rustees shall, within twelve months after the execution of such deed, cause the same to he. registered in the office of the registrar of the county in which the land lies. § 4. And all conveyances made before the passing of this act, for any of the purposes aforesaid, shall bo valid • provided such conveyance shall have been already registered' or shall be registered within twelve months after the passincr of this act. ° *By 3 V. c. 73, reciting, whereas it is expedient to allow the several Christian denominations recognised by the statu of this province to hold lands for tlie support of public wui. ship and the propagation of christian knowledge, it is enacted that so much of the *0 G. IV., c. 2, as limits the powers of the several denominations mentioned in the said act, to the quantity of five acres, and to the purposes for which lands shall be held, shall be repealed. § 2. The several relii^ious societies mentioned in the said recited act shall and are hereby authorised to hold lands in the manner specified in the said act, for the support of public worship and the pro- pagation of christian knowlcge, as well as for the purjioscs mentioned in the said act, any thing in the statutes of mortmain to the coiitrary notwithstanding. § 5>. The ri'dits and privileges aforesaid to extend also to the lloniau Catholic church. By 8 v., c. 15, § 1, it is enacted that whenever any religious society or congregation of Christians in Upper Canada shall have O'^^asion to take a conveyance of land, for the site of a churti., chapel, nieeting-bousc, burial-jii;roiintl. or residence for their minister, it shall be lawful for them to appoint trustees, to whom and to whose successors, to be appointed in such manner as shall be specified in the dceJ of conveyince, ho land requisite for any of the purposes aforesaid may be conveyed ; and such trustees and tlioir successors in perpetual succession shall be capable of taking, holding and possessing sjuch land, and of comm( :cing, maintaining and defending actions for the protection thereof, the statutes of mortmain or any other law to the contrary notwithstanding. § 2. Provided that such trustees shall I within twelve months after the execution of such deed, causi [ the same to be registered. 1, by the name »f taking, holding ing and maintain- for the protection The land to be so congregation. § e months after tlie to bo registered in in which the land jfore the passing of aid, shall be valid; already registered, hs after the passing g expedient to allow rniscd by the stall pport of public ^\ur- iwledgc, it is enacted, limits the powers of 1 the said act, to the loses for which lands The several religious cd act shall ami ave ft manner specified In kvorship and the pvo- 1 as for the purposes cr in the statutes of iug. ^ ^>. '^^'<^ ^''g^'^s ,0 the lloman CatVolic UtliQiom Sotletfefii. 733 1 that wiicncYcr any Christians in I'pper onveyance of land, for -house, burial-groimd, I be lavful for them to [icse successors, to be ► specified in the deed r any of the purposes ch trustees and their II be capable of taking, and of comm<:Cing, the protection tlioveoi, ,r luw to the contrary lat such trustees shall lion of such deed, cause And by 12 V., c. 91, it is enacted that all deeds heretofore executed for any of the purposes of either of said acts, (9 G. IV., c. 2, 8 v., c. 15), shall be valid if registered within twelve months (a) after the possing of this act, except in case of prior registrations, whiv h are not to be affected. § 2. Trustees of any of the religious societies or congregations tQ which said acts are applicable, are authorised from time to time, upon the express consent of the conference, synod oj body having the direction of the temporal affairs thereof, by deed under their hand and seal of office (which seal each body of trustees is hereby empowered to have and make, and from time to time to alttjr) to lease, mortgage, sell and convey, or exchange such of the lands held by them, in such portions, and in such manner as from time to time i:iv be deemed necessary ; and the trustees' receipt for ;!ie' purchase money shall be an absolute discharge to the purchaser : provided that the moneys arising from such 5jle or mortgage be applied to the purchase of other lands tobr bold by the trustees for like purposes, or improvement of tht riai.o or other lands held by them upon the like trusts; ;iiul provided that no land acquired by free gift shall be sold without the consent of the grantor or his representatives. Atid by 12 v., c. 92, entitled " J« Act to enable the trustees i.i ,]•■!) clies and ftarsunages, and other trusts, helonginj to iL i: 'sleyan Methodist Church in Canada, more conveni- tnthi to manage and dispose of their estates, and for the niposos therein mentioned;" it is enacted that it shall bo bful for the trustees for the time being, of each of the re- lisious congregations of the Wesleyan Methodist Church in Camda. and the said trustees of each respective congregation arc as such trustees thereby authonsed from time to time, I upon the express consent of the conference of the said Wes- jlevan Methodist Church first had therefor by deed under their Imul and seal of office, (which seal each body af trustees is I tliereby empowered to have and make, and from time to time to alter,) to lease, mortgage, sell, convey or ccohange, such [of the hinds and tenements liebl, or to be lioUl by any of the [respective trustees, in such portions and in such manner as Ifruin time to tiuie nniy be deemed by the trustees thereof iiecessaiy and useful, for the purposes connected with the fartieular trnst, subject nevertheb hs to the conference aforc- Ifaid; and the receipt of the trustees shall be an absolute dia- liavf;!' to the purchaser : prorided ahrai/s. that the moneys rising from tlie sale or mortgage of lands so acquired, shall (ujExtcudeil liy IG V., c. 12C, for a further period of 12 months. iil|j|fl| 1 HHi!li: €^ CI' !■■::■■'' 1 1.4 I'll ,'4 »^:.;^.rii' ti, ti i.T 1, 'i!;3H II ' ': 734 Hesicue* Is.! (Vfi';F ./IF nil ^s « be applied by the trustees to the purchase of other lands t be held by them for the like purposes and trusts, or to tli improvement of the same or other lands held by them unon the like trusts ; and provided that no lands acquired by tli trustees hy free gift for special purposes, shall be sold by tli trustees without the consent of the grantor or his Icj^al ren resentativcs. "^ ' By 18 v., c. 119, the grantees in any letters patent or trustees appointed pursuant thereto, and other trustees IioR ing lands for any religious body, are empowered to demise or lease any such lands for any term not exceeding 21 yem- and to covenant for renewal of such lease. § 4. Land not to be leased without the consent of a maioiitr of the congregation present at a meeting called for the pur- pose ; nor any lands necessary for the site of a cliuicL or place of worship, or other buildings, or for a burial fn-ound for such congregation. § 5. Any land not required to be retained may be sold on giving public notice of such intended sale, and subject to tlic sanction of the Court of Chancery. RELIGIOUS WORSHIP. See title '' Puhlie Worship." RESCUE Is de Hned by 4 Bl. Com. p. 131, to be the forcibly and know, i ingly freeing another from arrest and imprisonment ; and it is I generally the same offence in a stranger so rescuing as it woulj have been in a gaoler voluntarily suffering an escape ; but here I as upon voluntary escapes, the principal must bo first attain' ted or receive judgment before the rescuer can be puui!; for by i)ossibility there may have been no offence coiiimittnil — 1 Halt a P. C, GOT ; nevertheless, as the rescue i.s in con-j tempt of some legal process, the offender may be coiniiiittiuS and punished for a misdemeanor, according to the doL'rce o(f his offence. To hinder a person who has committed felony from beii'g arrested is a misdemeanor only ; but if rescue'^ after the arrest, and the arrest was for felony, the rescuer i a felon ; if for treason, a traitor ; and if for a trespass, fiaJ nhle—irale PI. IIG ; 3 lluw. c. 21 ; Russ. .f- /('//. C. t\. 458 ; but it seems necessary that the rescuer should Iiavj knowledge of the criminal offence, if the party be In custoJj of a private person, but not necessary if in custody of officer.— 2 Hale, GOG. *Jiy o W. IV., c. 3, the rescue of any person convictei of, or committed for murder, is made felony, and is punisa able by death. UtMtuUon of Stolen r felony, the rescuer J ^dif for a trespass, tin! JJU88. .f- J?//. f any person convicts Ic felony, and is puiusl^ 3r RESTITUTION OF STOLEN GOODS. By the common law there was no restitution of stolen (roods, but it being considered that the party prosecuting the offender by indictment deserved to have his goods res+ored, it was enacted by the statate 21 H. VIII., 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 other- wise attainted by reason of evidence given by the party rob- bed or owner of the money or goods, or by any other, by their procurement ; then the party robbed, or owner of the ^Qods shall be restored to such his money or goods ; and the justice may award a writ of restitution. The writ of restitution has fallen into disuse ; but upon production of the goods at the trial, the court will order them to he restored to the owner; and if not restored, he may maintain an action of trover for them, after conviction, not- withstanding they may have been sold to the person claiming in market overt. — 1 Hale, 543 ; C Kel. 48 ; 2 Inst. 714. \lthou<^h this may seem hard upon the buyer, yet the ndeof lawis that ^^ spoUatiis debit ante omnia restitnti" especially when he has used all diligence in his power to con- lie Vict the felon ; and as the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, who has done a meritorious jct hy pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been milty of no unfair transaction. — 4 BL Com. 3(]3. However, L ol Eliz. c. 12, where a hcvse is stolen and sold in open market, according to the provisions of this act, the owner can only be entitled to it again upon payment of the buyer's [costs. Sec further on this subject, ante title ^^Ilorscs^" p. 30G. If the thief sell the goods and be taken with the money liieh he sold them for, and the goods cannot be heard of, lit has been questioned whether the prosecutor shall have the Loney.— IF. Jones, 148 ; 2 Fast. P. 0. 78'J. But the better opinion seems to bo where it is clearly ascertained that the money is the produce of th*^* goods stolen, that the prosecutor would be then entitled to it, within the cfiuity of the above statute. — IIamberric*s case, Cro. EUz. G61 ; ITarriss eascy .%, 128 ; 1 JIale, 542 ; 2 East. P. C. 780. Restitution, however, can only be had from the person in [possession of the goods at the time of, or after the felon's at- Thereforc, if a party purchase them bona fide, in '.rt, and sell them ai;ain bcioro conviction, no action m :i|' !V:il -'; Ij.,' ",'' -i" ,!:|. mm. 730 Mfot, Stouts $crt ■will in this case lio against him for the value, though notice were oven given him not to sell. — Horwood v. Smith, 2 P 053. But the net jssity of prosecuting and convicting or at! tainting the felon, in order to have restitution, is only vlig,, the property is changed hy some intermediate act, as when they have been sold in market overt. For otherwise the owner may, at common law, peaceably retake his goo(]g wherever no finds them, without any writ of restitution.— KcL 48 ; 2 Haw. c. 25. And now by 4 & 5 V., c. 25, § 49 restitution shall be made, except in certain cases, for ^yhioij see title '■^Larceny" p. 528. RIOT, ROUT, &c. A riot is the forcibly doing an unlawful thing, by three or more persons nsscmblcd together for that purpose. Ey the common law, peace officers may suppress a riot, and may com- mand all other persons to assist them. — 1 Ilatv. c. (].j S 11. A rout is where three or more meet together to Jo some unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or way, and making some advances towards it, but Avithoiu actually executing it. — Ibid. An unlawful assemlily is vherc three or more assemble themselves together, with intent to do an unlawfid act, as to pull down enclosures, kc, but part withuut doing it, or making any motion towards it. — Ibid. A riot at eoinmon law is a misdemeiuior only, jmnishable by fine and imprisonment. — 1 Ilaw. c. 05, § 12. But under particular circumstanc(>s, which will be seen hereafter, it i^ in some cases, by statute, made felony. Jliot at Common Law [Misdemeanor). Tf the riotous assiMubly nuot for a public purpose ;— as to reiires> .1 L'onoral grievance ; to pull down all f aolusurcs; or I to reform religion ; or with a determination to resist the king's forvos, if legally called in to keep the peace ;— their | prot'eeilings thon mav amount to overt acts of high treason, l>y levy'iiig war against the king. — t Bl. Com. 147. To constitute a riot, there must be some circumstances of I actual force or violence, or at least of an apparent tendonoyl thereto, which are calculated to strike terror among thel people, such as the •^1h>w 01 offensive weapons, throatcnind speeches, ortuibulent gestures. Jiiit it is not neeessarytiiatj personal violence shoiild have been actually coniinilLod.— ll Haw. c. 05, § 5 ; i'Ufford .f* lirandon, 2 Vamp. 369. >'orj will it amount t<< a riot if the <>l)ject is to do a lawful act. to remove u nuisance. — 1 Ua:v. c. 05, § 8 , U. v. ^okii. 111 iHfOt^ KOttt, $?C. 737 ue, though notice od V. Smith, 2 I{. { convicting or at- tion, is only -wlien liate act, asvrhen For otherwise tlie retake his goods it of restitution.— t 5 v., c. 25, § 41t, lin cases, for Avliieli i\ thing, hy thvoc or at purpose. By tlic a riot, and may com- j. — 1 Uaiv. c. Oo, § meet together to do quarrel, as forcibly claimed of common iwards it, hut ^vitliout vfulassomlAyisAviicrc (TCther, with intent to 3lo3urcs,_twn««^'^t"^*J'^«^c*''^'^ Lnation to resist tl.e leop the pence ;— theit t acts of bi^h treason, \Bl. Com. l^T. some circumstances ol \iu apparent tendency like torror among tk c weapon?, tkvoateuui* lit in not u.ccssarv tliat lactually oomumiod.--l u 2 Oimp. ^fr >"^ L tod<»alavvfulact.^J iTftwf. 117 ; 5 Burn's J. Riot, % 1. Where a person on seeing others actually engaged in a riot joins himself to them ana assists them, he is as much a rioter as if ho had at first assembled with them for the same purpose. — 1 Haiv. c. 65, 5 3. And whosoever encourages, or promotes, or takes part in a riot, whether hy words, signs or gestures, or hy wearing the badge, or ensign of the rioters, is himself to he considered a rioter ; for in this case, all are principals. — 2 Camp. 370 ; 45Mrr.2073; 1 iTa/c, 463. To incite persons to assemble in a riotous manner, appears to be an indictable cfTonce. — Oro. Cir. Oomp. 420 ; 8 Ed. II., cut. 0. L. 500. Women are punishable as rioters; hut ('nfawfs,*under the age of discretion, are not. — 1 Haw., c. (5o § 14. Where an infant is indictable, he may appear by attorney. — R. v. Turner, 2 Ld. R. 1284. Thus much for a riot at Qommon Law. Riot hy Statute (Felony). The statute 1 G. I., st. 2, c. 5, § 1, commonly called the Jliot Act, enacts that if any persons to the number of twelve or more, being unlawfully, riotously and tumultuously as- sembled together, to the disturbance of the public pence ; and being required or commanded hy any justice of the peace, or the sheriff of the county, or his under-sheriff, or by the mayor, bailiff, or other head ofScer, or justice of the peace of any city or town corporate^ where such assembly shall be, by proclamation made in the King's name (in the form liirccted by the second section of this act) to disperse them- selves, and peaceably to depart to their habitations or to tlicir lawful business, shall, to the number of twelve or more (notwithstanding such proclanmtion made), unlawfully, riotously and tumultuously, remain or continue together by tk space of one hour after such command or request made k proclamation, the parties so remaining shall be guilty of felony, and shall suffer death. By § 2, the justice (or person authorised as above), shall, among the said rioters, or as near to them as he can lawfully come, with a loud voice command, lor cause to be commanded, silence to bo, while proclamation lis making ; and after that, shall openly and Avith a loud Ivoice make or cause to be made, proclamation, in these words, lor like in effect : — Our sovereign lord tlic King (a) cliargelh and commandeth kll |iersc>ns being assetnbli-d to disperse themselves, and peace- ibly to depart to their habitations or to thi'ir lawful business, (a) Lady the Queen. 93 aii'i (:'i "1 ;,.">.'' f' ' ' 1 1 mm m hIk! •* ill M 738 is^fot, Mout, ^t. upon the pains contained in the act made in the first year o the reign of King George, for preventing tumults and riotoui assemblies. God save the King, (a) By § 3, those assembled, and not dispersing within ar hour, may be seized ; and if they make resistance, the per sons kilhng them shall bo indemnified. § 4. And if am persons unlawfully, riotously, and tumultuously assembled shall unlawfully and with force, demolish or pull down, oi begin to demolish or pull down, any church, chapel, or ani building for religious worship, certified and rcgisterct according to the statute of the 1 W. & M., or any dwelling house, barn, stable, or other out-housc, they shall suffer death without benefit of clergy. § 5. And if any persqji shall with force and arms, wilfully oppose, hinder, or hurt an] person that shall begin to go to make the proclamation whereby the same shall not be made, he shall be guilty o felony; and also every person so unlawfully, riotously and tumultuously assembled, to the number of twelve oi more, to whom proclamation should or ought to have beei made if the same had not been hindered, shall likewise, ii case they, or any of them, to the number of twelve, or more shall continue together, and not disperse themselves withii one hour after such let or hinderance so made, shall hi guilty of felony. § 8. l*rosccutions under this act mus bo commenced within twelve months. *By 3 W. IV., c. 3, (the Riot Act, 1 G. I.,) is confirmed in! relation to this province ; and it is enacted, that the prov sions in the fourth clause of the same act shall apply an extend to all churches and chapels or places for relifioi worship in this province, notwithstanding the same, or any them, shall not be certified or registered as provided in tl siiid act. By 4 & 5 v., c. 2G, § G, if any persons riotously ai tumultously assembled together to the disturbance of public peace, shall unlawfully and with force, demolish, down, or destroy, or begin to demolish, pull down, or dcsti any church, chapel, or meeting-house, for the exercise of mode or form of religious worship, or any house, sta coach-house, ou<^-house, warehouse, office, shop, mill, ni; house, hop oast, b:'rn, or granary, or any building or erect used in carrying on any trade or manufacture, or any brai thereof, or any machinery, whether fixed or moveable, pared for or employed in any manufacture, or any bra thereof, every such offender shall be guilty of felouy (a) Quoen. i< villi ^* Hfot, Hottt, $;r. 739 in Uie fu-st year of r tumults and riotous 'ispersing within an ; resistance, the per- . § 4. And if any ultuously assembled, lish or pull down, or hurcli, chapel, or any ified and registered I M., or any dwelling. they shall suffer death, I if any persQji shall, 5, hinder, or hurt any ake the proclamation, \ he shall he guilty of 'unlawfully, riotously, 5 numher of tivche or or ought to have been iered, shall likc^^•ise, in mher of twelve, or more, 5perse themselves ^vithin Lince so made, shall k IS under this act must 3. G. I-,) i^ confirmed in its enacted, that the provi- ime act shall apply and Is or places for religious lulingthosamc, oranyof (fi-rcSas provided mtk V persons riotously and b tlie disturhance of tl\e [with force, demolish, pull Lh, pull down, or destroy, Isc for the exercise of any fn 'or any house, stable, r office, shop, mill, malt, tr any building or erection [anufacturc, or any branch Ir fixed or moveable, pre-l 'mufacturc,or imybranck be guilty of felony «"« ghall be liable, at the discretion of the court, to be im- prisoned at hard labour in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. See also title ''Public Works, Riot at" Indictment for a Riot and Assault, {Archhold.) County of } Tlie jurors for our lady the Q,ucen, upon their to wit. ji oath present, that J. S., late of the township of , in the county of , labourer, J. R., late of the same, carpenter, E. W., late of tlie same, yeoman, together with divers other evil disposed persons, to the number of , and now to the jurors aforesaid unknown, on the day of , in the year of the reign of our sovereign lady Victoria, with force and arms, at the township aforesaid, in the county aforesaid, unlaw- fully» riotously and routously did assemble and gather together, to disturb the peace of our said lady the dueen, and being so tjien and there assembled and gathered together, in and upon one A. the wife of J. N., in the peace of God and of our lady the Uueen, then and there being, unlawfully, riotou:^ly and routously did make an assault, and her the said A. then and there unlawfully, riotously and routously did beat, wound, and ill-treat, so that her life was greatly despaired of, and other wrongs to the said A. then and there unlawfully, riotously and routously did: in contempt of our said lady the Queen and her laws, to the evil example of all others in the like case offending, and against the peace of our lady the Glueen, her crown and dignity. — {^Add also another count for a common manlt.) Indictment for a Riot and Tumult. Commencement as in the last form, t£r.] with force and arms, to wit, with sticks, staves and other offensive weapons, at the township aforesaid, in the county aforesaid, unlawfully, riot- ously, and routously did assemble and gather together, to dis- turb the peace of our said lady the Queen ; and being so as- sembled and gtithered together, armed as last aforesaid, did then and there unlawfully, riotously, and routously make a great noise, riot and disturbance, and did then and there remain and continue armed as last aforesaid, making such noise, riot and disturbance for the space of an hour and more, then next follow- ing, to the great disturbance and terror, not only of the liege subjects of our lady the Uueen there being and residing, but of lail other the liege subjects of our lady the Queen then passing land repassing in and along the Queen's common highway there, lin contempt of our said lady the Queen and her laws, to the levil example of all others in the like case offending, and against lilie peace of our lady the Queen, her crown and dignity. m JV|!( '■b ,-. m;1 7: -I 1 -.ViLk'bil ill m tfSi m [i^:';..^■ -^|'■"f?'/t;'• ii 'if.i-A- W ;■.'..« 'Mil -.'s ;M ■ 11 ■■■|l'|.?^IIJi'"-Ji t';3/ ■1 i <^' m imtfM I'lii 'IS |i ill r 1 ■ ;J3 Ipfilp ■ -A I 11 740 Miners atf^ t^aUfgaitfon* RIVERS AND NAVIGATION. 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 merchandizes, 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 a highway. Thus the laying of timber in a public river, whereby the passage of vessels is obstructed, is as much a nuisance as laying logs in a highway. — 5 Bac. Ah. nuisance {A.) By 7 v., c. 36, § 1, any person who shall throw into any river, rivulet, or water-course, or any owner or occupier of a a mill who shall suffer or permit to bo thrown any slabs, bark waste stuff, or other refuse of any saw-mill, except saw-dust' or any stumps, roots, or waste timber, or leached ashes, and shall allow the same to remain in such river or rivulet nr water course, shall thereby incur a penalty not exceeding £,> currency, and not less than one shilling for each day during which such obstruction shall remain, over and above all damages which may arise therefrom, to bo recovered in a summary way before any one or more justices of the peace in the manner provided by 4 & 5 V., c. 26. § 2. The amount levied in no case to exceed ,£5 and costs. § 3. One-third of the penalty to go to the informer, and the other two-thirds to the township ; and in case of damages to private property, such damages to be paid to the aggrieved party, when not examined as a witness. § 4. In default of sufficient distress, the offender to be committed to the com- mon gaol until the fine or damages and costs bo paid, but not exceeding thirty days. 35y the 10 & 11 V., c. 20, entitled " An Act to amend. explain and continue the last mentioned act, 7 V., c. ;^6, " any person who shall throw into any river, rivulet or water- course, or any owner or occupier of a mill who shall suffer or permit to be thrown, any slabs, bark, waste stuff, or refuse of any saw-mill (except saw-dust) or any stumps, roots, shrubs, tan-bark or waste-wood, timber or leached aslioa ; or i any person who shall fell, or cause to be felled in or aeross any river, rivulet, or watercourse, any timber, or growing or standing tree or trees, and shall allow the same to remain, shall thereby incur a penalty not exceeding c£o, nor less than Is. every day such obstruction shall remain; to be I recovered Avitlr costs before any one or more justices, in the manner provided by the 4 & 5 V., c. 26. This act not toj extend to any dam, river or bridge, or to any tree cut down I Xloa^ ^UoUiancr0. 741 ight of the public •msclvcs or their 1 public highway, usance occasioned iblo on the sarac liway. Thus, the by the passage of e as laying logs in ,all tlirovr into any Lcr or occupier of a (wn any slahs, hark, ill, except saw-dust, • leached ashes, and vivcr or rivulet, u\ ty not exceeding £5 for each day during over and above all be recovered in a justices of the peace 26. icxceed X') and cost?. he informer, and the n case of damaj;e3 to ,aid to the aggrieved § 4. In default of imxnitted to the com- id costs be pald,kt " An Act to amend. ned act, 7 V., c. ^r river, rivulet or water- nill who shall suffer or vaste stuff, or refuse r any stumps, roots, or leached ashoa; or be felled in or across timber, or growing or the same to reraam, cecding £i>, «or less shall remain; to be )r more justices, in the 26. This act not to "to'any tree cut do\\n or felled across any such river, &c., as a means of passage. This act to remain in force for four years from the passing thereof (25th July, 1847), and until the end of the next session. By 14 & 15 v., c. 123, the above acts shall not extend to the river St. Lawrence, nor to the river Ottawa, nor to any river or rivulet wherein salmon or pickerel, black bass or perch, do not abound. The 7 v., c. 36, is only a temporary act, but it has been continued, as amended by the 10 & 11 V., c. 20, and the 14 & 15 v., c. 128. By the 20 V., e. 16, to the 1st January, 1858, and till the end of the then next ensuing session of parliament. ROAD ALLOWANCES. By 8 V. c. 20, § 15, any party in possession of any part of an allowance for road in the roar of his lot, enclosed by a lawful fence, not travelled or required by the public, by reason of any other road being used in lieu thereof, or because the same has not been opened, shall be deemed legally possessed, as against any other private party. Such possession to cease upon an order of any two justices directed to the proper township officer requiring him to open the same. By 20 V. c. 69, § 1, so much of the 187th § of the municipal act 12 v., c. 81, (as amended) as prevents municipalities from passing by-laws for stopping up original allowances for roads or selling the same, is repealed. § 2. Authorises the municipalities of townships to make by-laws for stopping up and selling any original allowance for road or any part thereof, provided that such by-law be confirmed by a by-law of the county council. § 3. County councils authorised to make siniiiar by-laws respecting road allowances under their control and not being on the limits of any village, town or city therein. § 4. Road allowances to be offered for sale in the [first place to the parties owning adjoining lands. § 5. I Whol-o new roads have been opened for which no compensa- lionlias been paid, the municipalities are required, on the report of their surveyor that such new road is sufficient, to 1 convey the original road allowance to the party through I whose land such new road shall run. § 0. Roads deemed liL*elcs8 may be sold. § 7. Roads not to be closed up so as [prevent access to adjoining lands. § 8. By-laws for stopping [up or sale of any original allowance not to be passed until lone month's notice thereof, given in at least six public ||tlaces in the vicinity, and in one local newspaper for Tthree weeks. .'I ■'■p/i '\' •i'l !> ;;'"^:.!| ':'^ ' Ji • 'I '' i ; ■/ 1 1184 3 1 1 ■',!,•■("' lull ■' ! : m '1 s tu e> ^ IMAGE EVALUATION TEST TARGET (MT-3) ^^A #>'' <. V^% 1.0 I.I Ui»2^ 12.5 AO 12.0 m 1.25 ||.4 1.6 1 111= ^ ^ 6" ►- Photographic Sciences Corporation 23 WIST MAIN STk.ilT wnSTIR.N.Y. USM (7I«)I73-4S03 ^^ 4r r I hi ,11. 11 ■k.ir: n^f lfji>;: - i alii ,,, Mit. Ms ,•1 •M NT «;! < 742 Kofiiieiri». ROBBERY. Robbery signifies a larceny from the person, committcil openly and violently ; and may be defined to be, the felonious and forcible taking of goods or money of any value from the person of another, or in his presence, against his will, by vio- lence, or putting him in fear. — 4 M. Com. 243 ; 2 Hast. P a 797. Of the Felonious taking. The gist of the offence being the force and terror used by the offender, the value of the property stolen is quite immate- rial ; for a penny as well as a pound, forcibly taken or ex- torted, constitutes in law a robbery. — 3 Inst. 69 ; 1 ffajf 532 ; 1 Ilato. c. 34, § 16 ; 4 Bl Com. 243. The taking also must be such as to give the robber a possession of the pro- perty stolen ; therefore, if a man having his purse f^istened to ins girdle, be assaulted by a thief, and the thief, in order ^'le more readil^'^to take the purse, cut the girdle, and the .1- e thereby fall to the ground, this is no taking so as to *.mrant to robbery, for the thief never had the purse in his possession ; but, if he had taken it up from the ground, though but for one moment, and afterwards let it fall in the struggle, this would then have been a sufficient taking, the purse having been once in his possession. — 3 Inst. 09. And when once the offence of robbery is completed it cannot be purged by a re-delivery. There may be taking in law however, as well as a taking in fact, which will amount to robbery. Thus, if upon A. assaulting E. and bidding him deliver his purse, B. refuse to do so, and then A. pray B. to give or lend him money, and B. docs so accordingly under the influence of fear, the taking Avill be complete. — 1 Hale, 533. So, when thieves, finding no property on a man, force him by menace of death to fetch them money, which he delivers to them while the fear of the menace continues upon him, and they receive it, this is a sufficient taking in law. — Id. 3 Inst. 68. The taking, how- ever, need not be immediately from the person, it is enough if it be in his presence. Thus, if A. upon being attacked by a robber throws his purse or his cloak into a bush, or Ictsl hat fall while he is endeavouring to escape, and the thief takes either of these things up and carries it away, such a taking being done in the presence of A., will amount to rob- bery— 3 Inst. 68; 1 Hale, 533; 1 Haw. 34, § 6; but no stealing will amount to robbery unless done in the presence of the owner.— /?. v. Grcijy 2 East P. C. 708. $lolilirvi?« 743 person, committcil I to be, the felonious any value from the linsthiswill, byvio- 243 ; 2 East 1\ n. ing. e and terror used by alen is quite immate- forcibly taken or cx- -3 Inst. 69 ; 1 Ilak, i3. The taking also wssession of tbo pro What Violence or Fear is necessary. The principle of robbery being violence, some degree of force i? therefore necessary to constitute the offence ; but there may be a constructive as well as an actual force, for for where such terror is impressed on the mind as not to leave the party a free agent, and in order to get rid of that terror he delivers his money, this is a sufficient force in law ; and Tvhere actual violence is used there need not be actual fear, for the law will presume it. — Donalli/'s case 2 East. P. Q. 727. With respect to the degree of vi^^lence, vhere there is no putting in fear, the amount of force used in such cases must be something more than a sudden taking or snatching, for unless some greater force is used by the thief to over- power or prevent resistance, or there is some resistance or actual struggle on the part of the owner to retain his pro- ossession ui "'MJ'"" H ^gj-ty^ this will not amount to a robbery, being divested of g his puyse as enea H , j^ ^^^ j^^^^j^^ ingredients of the crime, corporal violence and rS the thief, in order t the girdle, and the 18 no taking so as to had the purse in his up from the ground, wards let it fall in the , sufficient taking, the .session.— 3 hut. (j9. bery is completed it There may be a taking in fact, which ipon A. assaulting P). 1^. refuse to do so, him money, and B. ,ce of fear, the taking when thieves, finding lenace of death to fetch „ while the fear of the ey receive it, this is a 38. The taking, ho\v- ,Q person, it is enough ipon being attacked hy into a bush, or lets his escape, and the tluct larries it away, such a A. will amount to rob- Haw. 34, § 6 ; but no ,8 done in the presence C. 708. both its main ingredients of the crime, corporal violence and terror, — It. v. Maeaulay^ 1 Leach, 287 ; R. v. Baker, Id. 290; B. V. Itohins, Id. 290, (note A.) ; It. v. Steward, 2 East. P. C. 702 ; but if any injury be done to the person, or there is any struggle of the owner to retain his pro- perty, then it is robbery. As, Avherc a lady's car-ring wa8 pulled so violently from her ear that the ear was torn through and made to bleed and she was otherwise much hurt— -B. V. Lapier, 1 Leach, 320 ; and so where the prisoner pulled the prosecutor's Avatch from his fob, which being fastened by a steel chain round his neck, the thief with two jerks broke the steel chain in order to get the vatch, for the prisoner in this case had to overcome the resistance made by the steel chain, and used actual force for that purpose. — R. v. Mason, R. ^ Ry. 419. The violence used also will not the less amount to robbery, because it is accompanied by some specious pretence of law or justice ; thus, where the prosecutor was carrying his cheeses along the highway and was stopped by the prisoner, who insisted on seizing them for want of a permit, which was found to be a mere pretence, no permit being necessai'y, and on some altercation they agreed to go before a magistrate to determine the matter, when otlier persons, who were riotously assembled and in confederacy M'ith the prisoner, carried away the goods in the absence of the prosecutor, this was held to be robbery, and the seizure of the cart and goods by the prisoner was sufficient to constitute the offence. — Merriman v. Hundred o/ Chippenham, 2 Hast. P. 0. 709. With respect to a con- structive violence by putting in fear, it matters not whether t, 'R: i^'i^' ■■ . '.h '■i:l! [■\\ 744 MoWtvs* ^mS:.]]!} tjlf I';; t> the fear excited is of injury to the person, the property or the character of the party robbed ; as if a person with a drawn sword or other circumstances of terror, indicatiDf a felonious intent, beg alms of another, who gives it to him through mistrust and misapprehension, this pretence of askinc charity will not prevent the offence from being considered al robbery.— 4 Bl. Com. 244 ; 2 East P. O. Til. The degreo. of fear need not be the extremcst state of alarm and terror but only such a reasonable apprehension of danger as may induce a man, for his own safety, to part with his property. So, where a man is compelled through fear to part with his money, in order to prevent his liouse or property from being burnt or destroyed, this will be 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 unnatural 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, whether the party threatened has been guilty of the crime or not {a). — R. v. Gardiner, 1 C. <^ P. 7t). By 4 & 5 v., c. 25, § 6, whosoever shall rob any person. and at the time of or immeiliately before or immediately after such robbery shall stab, cut or wound any person, shall be guilty of felony, and being convicted thereof shall suffer death. § 9. Whosoever shall rob any person, or shall steal any, chattel, money or valuable security from the person of i another, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for I any term not exceeding fourteen years nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. Rohhing the Mail. By the 13 k 14 V., e. 17, § 16, is made felony and punifli- able by imprisonment in the penitentiary /or life. See also title '^ Post Office'' Of Principals and Accessories. With respect to persons aiding and abetting in a robbcrv.! the same rules are applicable as in every case of principalj and accessory. Thus, where several persons come to rob sj man, and they are all present whilst one of them takes biii| (a) Sec ftlso title "Extortion," p. 320 ; aud the statute 4 & 5 V., c. :jJ { 8, OQ this subject. Saciilefie. 745 m, the property or f a person with u terror, indicating a ho gives it to him 3 pretence of asking being considered as '. Til. The degre? jf alarm and terror, a of danger as may t with his property. fear to part with his property from l^eing mt putting in fear to noney amount to the induced to part with t of another to accuse ;r crime, vrhereby his cd, extorting money amount to the crime led has been guilty of , 1 a ^ P. '79. shall rob any person. before or immediately lound any person, shall ed thereof shall suffer person, or shall steal .yfrom the person o( ion of the court, to be incial penitentiary for ars nor less than seven ther prison or place of 1 ng ivio years. lil. nade felony and puni^l lary for lifi-' Office.'' cessories. d abetting in a robhery.l every case of prmcipall tl persons come to rob J t one of them takes bi dtUe statute 4&5 v., c.iJI 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, or watch if any one should approach, while the others commit tl.e robbery, this will be a robbery in the third also, though he stood at a distance from them and not within YJg^ — 1 JIalc, 534, 537 ; but though several come out with a comraon design to rob in the highway, yet if one of the party (before any robbery takes place) entirely leaves them and (roes another way, rendering them no manner of assistance, cither at the time or after the commission of a robbery by the others, he cannot then be said to be guilty, either as principal or accessory. — li. v. Hyde, 1 Hale, 537. See also ante title " Accessories." Of Assaults with Intent to Rob. By 4 & 5 v., c. 25, § 7, whosoever shall, being armed with any offensive weapon or instrument, rob or assault with intent to rob any person, or shall rob any person, and at the time, or immediately before or immediately after such rob- bery, shall beat, strike, or use any other personal violence to any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for the term of his natural life, or for any term not less than seven years, or be imprisoned in any other prison or place of confinement for any term not exceeding two years. § 10. Whosoever shall assault any person with intent to rob, shall be guilty of felony, and bei g convicted (save and except in cases where a greater punisliment is provided under this act) be liable to be imprisoned for three years. SABBATH. See ''Lord's Hay." SACRILEGE. Sacrilege {sacrilegium) is, at common law, the robbery of la church, or a felonious taking out of a holy place things Iconsecrated to pious purposes ; as the vessels, goods or orna- lients of the church — 3 Cro. 153 ; but to steal any thing elonging to private persons in a church is larceny, and not acrilege. Sacrilege was originally punished with greater everity than other robberies by our law : for it denied the «nefit of clergy to a person convicted of this offence, which bs formerly granted to all other felons. — 2 Inst. 250 ; 23 1 VIII., c. 1, § 3 ; I Ed. VI., c. 12, § 10. But now, by 4 & 5 V., c. 25, § 18, if any person shall 94 « lis. ^''1l iS' ¥•'• .'!■ i,.i m „. iHii'i'', ■'.;!!'; !'l 'ik 31,!!- 'nf l;l .., ; '1 iJ II !|: 746 S^mvtl^^^Wiiitvunu break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel, money or valuable security, in any church or chapel, shall break out of the flame, such offender being convicted shall be liable to bo ini. prisoned at hard labour in the Provinciul Penitentiary foi- any term not less than seven years, or to be imprisoned ir any other prison or place of confinement for any term not exceeding two years. SALMON. See ''Fish." 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 hy the best authorities ; and Lord Halo, in his picas of tlie crown, says a general warrant to search for felons or stolen goods is not good — //. PL 1)3 ; likewise, upon a bare sur- mise a justice cannot legally grant a warrant to break any man's house to search for a felon or stolen goods. — 4 Inst. 177 ; but in case of a complair and oath made, of goods stolen, and that the complainani suspects the goods are in 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 tliera before him, or some other justice, to give an account how lu' came by them ; and further, to abide such order as to law doth appertain. — 2 H. II. 118, 150. But in cases not merely I of probable suspicion, but of positive proof, it is right to exe- cute the warrant in the night tiiiie, lest the oflenders and goods also be gone before morning — liarl. ^SeairhW.; suclil warrant must be directed to the constable, or a peace ofllccr.l and not to any private person ; though the complainant mayl aid and assist, because ho knows the goods. — 2 .//. IL liJO.I Whether the stolen goods arc in a suspected house or not J the ofiicer and his assistants, in the day time, may enter, tki doors being open, to make search, and it is justifiable by thi| warrant. — 2 II. II. 151. If the door be shut, and upon del mand it be refused to be opened by them within, if the stolcif goods are in the house, the officer may break open the dooif — III. H. lol. If the goods be not in the house, yet ij seems the ofiicer is excused that breaks open the door tl scarcii, because he searched by warrant, and could not kno( whether the goods were there till search made ; but it secD 4 steal tlieroin any noney or vakaWo break out of the be liable to bo ini- Lul rcniteutiary fov ;o 1^0 imprisoned ir. \\, for any term not Simtfom 747 nusual for justices to suspected places fov orally condemned Ijy in liis picas of tlie ih for felons ov stolen wise, upon a hare w- ,Yarrant to break any stolon goods.— 4 Jns(. [ oath made, of goods ectstbe goods are in a ground of his suspicion, prch in those suspected 'to attach the goods and [found, and bring tlicm (five an account liow W Z such order as to lavi But in cases not merely |pvoof,iti3righttoexc- lest the offenders and LBarl .SearchW.; m\^ table, or a peace officer, ghtheeomphunautmy fe goods.-2,7/.ii.lo»). tuspccted house or not. ^lay time, may enter, Ik r\ it is justifiable by tks )r be shut, and upon de- thcm^vithin,iftkstoleu| lay hrcak open tbe door, not in the house, yet « [breaks open the door tol rant, and could not knoi ■arch made ; but it seems the party that made the suggestion is punishable in such case ; for as to him the breaking of the door is in eventu lawful or unlawful — to wit, lawful if the goods are there ; unlawful if not there. — 2 //. //. 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 pro- ceed, by indicting and convicting the offender, to have resti- tution. — 2 H. II. 151. As touching the j[>rt»'^?/ that had the custody of the goods,* if they were not stolen, then he is to be discharged ; if stolen, but not by him, but by another, that sold or delivered them to him, if it appear that he was igno- rant that they were stolen, he may be discharged as an p'^.nder, and bound over to give evidence as a witness against liim that stole them ; if it appear that he knew they were stolen, he must bo committed, or bound over to answer the felony.— 2 //. IT. 152. By 4 & 5 v., c. 25, § 55 , if any credible witness shall prove upon oath before a justice of the peace, that there is reasonable cause to suspect that any property whatsoever on or vith respect to which any such [a) offence shall have been commited, is in any dwelling-house, out-house, garden, yard, croft, or other place or placf s, the justice may grant a warrant to search such dwelling-house for such property, as in the case of stolen goods; and any person to whom any property shall be offered to be sold, pawned or delivered, if he shall have reasonable cause to suspect that any such offence has been committed on or with respect to such property, is hereby authorised, and if in his power is required, to apprehend, and forthwith to convey before a justice of the peace, the party sa offering the same, together Avith such property, to be dealt with according to law. By 10 v., c. 170, § 3, search warrants may be issued on a Sunday. SEDITION. Sedition is understood to comprise within its meaning all offences against the Queen and the government, which are I not capital, and do not amount to the crime of high treason. It includes all offences of like tendency \Yith treason, but without any such direct intent or overt act of the party formed or executed as to bring it within the more serious offence. [All contempts against the Queen and her government, and • (a) See title " Larceny." W" ■■ W: ■f ^ r IM:.,: wn •;■■ i.|. !:■ H \) ■ : :*i'i «ii 1! it U>i If mi '€?,» ^..i"M VI? I'll i I '1 i '1: ♦hi' r '1 ' I 'f. ' I 8">f 7 748 Sei^0fonfii. riotous assemWies for political purposes, may be ranked under the head of sedition ; though it has been held, that when the object of the riot is to redress n general gvievanco as to pull down all enclosures, or to reform religion! or the like, it may then amount to an overt act of h\rti treason ; being in the nature of a levying of ^var against the Queen. And in general, it may s^iffice to remark, that all contemptuous, indecent or malicious ob- servations, upon the person of the Queen or her government, whether by writing or speaking, or by tokens calculutoi.! to lessen her in the esteem of her sulrjects, to weaken her government, or raise jealousies of her amongst the people. will fall under the head of sedition ; as well as all direct or indirect acts or threats, tending to overcome her measures or disturb the course of her goverment, not amounting to overt acts of treason. All these attempts are highly criminal at common law, and punishable with fine and imprisonment —4 m. Com. 147 ; 1 Ilaiv. c. 05, § G ; 1 K P. 6'. 70. SERVANTS. A servant may be discharged at a moment's warning for im- morality, or gross misconduct — II. v. Brampton, Cald; orfor wilful disobedience of orders. — Spain v. Amott, 2 Star. lU, 256. And if a servant of his own accord go away before liij time expires, he runs the risk of losing all his wages — Bait. t. 58, p. 141 ; and when discharged for misconduct, will be en- titled only to wages due at the time of his discharge. — SEw. 235. If a servant, however, not having been guilty of ariT misconduct, be discharged without warning, ho is entitled ii iuch case, if hired by the month, to a month's wage? abort | those that may be due.— 2 Sel. N. P. 1032. See also title ^'■Master and Servant." SESSIONS. The sessions of the peace is a court of record, holdcn befora two or more justices, for the execution of their general autlioJ rity, given them by the commission of the peace, as well i by certain statutes. — Lamb. 349 ; Dalt. 450. There muil •Iso be two justices (at the least) present in order to adjourn the sessions legally; and two justices also, to hold an adjouri ment. — Rex. v. Westington, 2 Bolt. 733 ; 1 Blk. Com. 35| n. When the sessions is adjourned, the style of the ecu ought to run thus : '' at such a session, held by adjournment:! but the original meeting of the sessions should be first si forth ; and then it should be stated that the sessions wcq StoofoniQt, 749 s, may be ranked las been held, that general grievance, reform religion, overt act of liigh i levying of Avar it may suffice to nt or malicioua oV \ or her government, tokens calculated to ects, to weaken lier amongst the pcopk. 8 well as all direct or ircome her measures. >nt, not amountiuf; to its are highly criminal inc and imprisonment. . 1 E. P. C. TO. onient's^varningfornn- Brampton, Cald ; ork , V. Aniott,^ Star. Rq. -ordgo away before lui nvr all his wages— Dalt, misconduct, will be en- his discharge.— 8%. viug been guilty of an; irninc», ho is entitled ib a month's wage? aboTt '. 1032. 7id Servant." V c of record, holdcn before n of their general aullio- of the peace, as avcU ail ])aU. 45G. There murti sent in order to adjourn salso, to hold an adjourn- 733-1 Blk. Com. Mi Pd, the style of the couil In, held by adjournment: I Wons should be first so d that the sessions werd ''continued from thence to such further time by adjourn- ment."— 2 Stra. Sd2, 805.— /i. v. Walker, Sees, Cas. 21. jVny two justices may direct their precept under their Uit<^ to the sheriff, for the summons of the sessions — 2 Ilaw. 41 • and such precept should bear date fifteen days before the return, and ought forthwitli to be delivered to the sheriff, to the end he may have suliicient time to proclaim the sessions, to summon and return the juries, and to warn all officers and others that have business there to attend. — NeU. Jiitroduct. 35, 4 Burn's Justice, £d. 198. Those who are bound to appear at the sessions, besides the Justices of the peace, are — 1. The Custos Rotulorum, or his sufficient deputy, who is the clerk of tlic peace, for the Custos lloUdorum has the custody of the rolls or records of the countv. 2. The sheriff, cither by himself or his deputy ; it king'^his deputy to return jurors, receive fines, and execute process. 3. All coroners, whose duty is to summon jurors, juJ execute process upon the default or neglect of the sheriff, or in case of his absence, or having an interest in the matter befuro the court. 4. The constables of tiie several townships within the county, and all other officers to whom any warrant lias boen directed, in order to make a return thereof. 5. The keeper of the gaol, who is bound to bring up the prisoners, and to receive such as may be committed. G. All persons returned as jurors by the sheriff, by virtue of the ibove mentioned precept. 7. All persons bound by recog- uiwnce to appear to answer, or to prosecute and give evidence. -dcdt. c. 185 ; 4 Burn, G Ed. 109. By 22 G. II., c. 4G, § 12, no person shall act as solicitor, titorncy or agent at the sessions, unles he is admitted and enrolled according to law, under the penalty of £50. And by § 14, clerks of the peace, under-sheriffs, and their rcspec- live deputies, arc prohibited under the like penalty from practising at the sessions. Of the Jurisdiction of the Sessions. 1. The jurisdiction of the sessions, by 34 Ed. Ill, c. 1, lixtendcd to the trying and determining all felonies and |(re«/'assc8 whatsoever. But now they ought not to try any Igreater offence than that of simple larceny, their commission Iproviding, that if any case of difticulty arises they shall not Iproceed to judgment, but in the presence of one of the justices Joftlie Court of Queen's Bench, or one of the judges of as- lize. Consequently, murders, burglaries, and other capital Monies, are reserved for a more solemn investigation at the isdzes. The sessions have no commission of gaol delivery ; it M ■r.i .!.■■ m ^A j"; V.hm 750 S(00Con0. if neither have they any jurisdiction over forger jf or perm at common law; It. v. Gibhs, 1 East 473. /i^i v. YarriJ ton, 1 ,S'a/^. 400 ; R. o. Bainton, 2 Str. 1088 ; 2 Ifaw. c j, § 38 : nor over jiny new created oflfencc, as usury ; \xx{[^^^ express jurisdiction is j^iven to tlicm by the statuto'crcitiiu the offence.— 7i. o. Smith, 2 Ld. 11. 1144; 1 BL J{ep.'i]{^. 2 iS'al/c. 080. Tlie general words in the coinniission of tho peace, including all trespasses, this comprehends not only direct breaches of tho peace, but also such offences as have a tendency thereto ; and on this ground, conspiracies and liliek or any illerjal solicitations, attempts, or endeavours to commit crimes, have been holden to be cognizable by the .scssionii — U. V. llujifins, 2 East. R. 23 ; R. v. Summen •' Salk. 194 ; R. v. Rispal, S Burr. 1320 ; 1 Bl aC'l. T],'^ sessions have, like every other court, the power to fine for a contempt committed in the face of the court,. — R. v. Lnvinon 4 B. -i' A. 334. ]]ut they cannot award an attaclnncnt for a contempt in disobeying any of their orders, the ordinarv and proper method being by indictment. — R. v. Bartldt *> Sess. Cas. 170 ; R. v. Robinson, 2 Burr. 800 ; 1{, j, Kinpdon, 8 East. 41; 4 Burn's J. 204, Ed. 10. The sessions have also poAver to fine jiu'ors for non-attendance at the court, u])on proof of their having been duly sum- moned, 13 ct 14 v., c. 55, § 03 ; also to commit to gi'iol anv person guilty of contemptuous or disresi)ectful conduct in the presence of the court. But the sessions have no power to amerce any justice for his non-attendance at the sessions, as the judges of assize may for tho absence of anvsuclij justice at the goal delivery. — 2 Jfa7V. 41, 42. Nor arel justices punishable for what they do in sessions — Stain, ]'it\ — unless there be some manifest act of oppression, or uilfiilj abuse of power. — 2 Barnardist, 24l>, 250. Justices in quarter sessions may also make rules and rcffaJ lations for the gaols, which, when approved of by ajud^coj the Court of King's Bench, shall bo in force — '32(jl.JII,f c. 8, § 10 (a) ; and fix the salary of the gaoler, which sliajj be in lieu of all fees. — Ih. § 17 ; appoint the high constaW and other constables in tho April sessions (ft) — *3-) G. ]II„( 2, § 10; grant certificates authorising the clergy of difteieij congregations to solemnize matrimony — *11 G. IV., o. 30; (J may grant certificates in case of the death of witnesses todecdl of tho due execution thereof, in order to their re^ristry- (a) But sec lato statute 20 V., c. 70, conferring this power on iuspeotj of gaols. (6) But no?r MnrcM, under the 20 V., c. 58. (c) See kio act 20 V., c. 66, and ante title " Marringes," p. 657. SrsKiionfii. 751 %f'< forgery or pcrjunj 3. Ji- V. Yarmf)- 1088; 2I[aw.c'.h c, as usury;, unless the statute croiitiuj; c coinmisHiou of the imprehetuls not only icli clTcnccH as have a onspirncii'^ ai^^^ ^'''t''«, ende(iv(n(rii to commii L'/alAe by the s^cssions, Ji. V. Hii turners, '.\ 20 ; 1 Bl 3C'.». Tk. the power to fmo for a com-..— -Z^- ^'- i>«»''«oii, aril svu attachment for ir orders, the orihnary ,g,^f._i^ r. Barthit,i 2 Burr. HOO; iJ. v. J. 204, i;^?. 1'5. Ike •ors for non-iittcniliince having been duly smiv :o to comuiit to <^!vol m Usrcspectful conduct in sessions l»avc no \wm entlancc at the sessions. c absence of any sueli Jaw. 41, 4'2. Nor are in sessions— »>{«"!• Hi) of oppression, or \silM tUso make rules and rccin- pprovcdofbyajuiheot Fc^n force-' 32 G. Ill ■ tlie gaoler, >vhicli sliall| .noint the \^?}^^^ , sions(?.)-*3:'...lI..c ,ng the clergy ot difleven^ lleath of witnesses to dvedj ,acr to their rogisU-y-^ V c. 34. § 3 ; cannot take cognizance of illegal marriages. j:*2 G. IV., c. 11. *By 47 G. III., c. 11, § 2, -when any person shall bo con- victed of an assault or misdemeanor before the sessions, he sliall pay tbe co! ts of any prosecution and conviction to be allowed and taxed by the court ; and when the defendant ?liall be acquitted, the prosecutor, unless it shall appear there ^crc reasonable grounds for piosecution, to be certified by the chairman, shall pay the defendant's taxed costs. The (Icfciulant's costs upon a presentment, if the defendant be acquitted, shall be paid ouv of the district treasury. * By 7 W. IV., c. 4, § 2, the courts of general quarter sessions of the peace in the several districts of this province shall liave power to try every case of simple larceny, and also to try all accessories to such larceny : provided cdways, that unless the justice presiding in any such court shall bo a barrister duly admitted to practise at the bar in this province, then it shall not be hnvfid for such court to try any case of larceny, when the goods charged to have been stolen shall exceed in value the sum of £'l^). ^ 3. No com-t Avhoso juris- diction in cases of larceny is extended by this act, shall have power to sentence a person convicted of larceny to be trans- ported for any period, or to be banished for a longer period than seven years, or to bo imprisoned in a common gaol for a longer period than eight months, or to be imprisoned and I kept to hard labour in any penitentiary or house of correction tor a longer period than two years. §4. It shall be lawful for any court having jurisdiction in cases of larceny, if they hliall think fit, to sentence any person convicted thereof to jbe banished from the province for any number of years not lexoeeding seven, to commence from the expiration of the Iterm for which the same person may upon the same conviction Ik sentenced to be imprisoned in the common gaol, or im- Ipvisoncd and kept at hard labour in a penitentiary or house Icf correction. § a. The court may, in its discretion, leave lease! of simple larceny to be tried at the next court of oyer W terminer, and general gaol delivery, if by reason of the lifficulty or importance of the case it shall appear to them kropcr so to do. § 0. If upon the trial of any case of larceny I which the value of the goods stolen shall be stated in the mlictment at a sum not exceeding £20, it shall appear in Ividencc that the value of such goods was in reality greater t»n £20, such trial may nevertheless proceed, and no legal xception to the jurisdiction of the court shall lie on that |ccount ; but the provision of this act restraining such court I cases where the value of the goods shall not exceed £20, ,!': * fn'"i .''ij II .1 752 Stunionu. shall bo dcomcd and taken merely to bo a direction to such court, but shall not be construed to aflfect their legal juri,,. diction. * By 7 W. IV., c. 6, § 2, no court , during the sitting of the court, enters i» minute of all proceedings, connnencing •with the day of the session, and before whom the same is held, inserting the Barnes of the grand jurors and petit jurors, and every other uinuto particular attending the proceedings throughout. i-rl'i life, f lii'lV 758 Stmionn. •'I'Mh If mm S ! i 't Mi Precept to Summon the Session. [Burn.] County of ") J. P. and K. P. esquires, justices of our sove to wit. I reign lady the Queen, assigned to lieoi) th" peace in the county aforesaid, and also to hear and dett'rmin> divers felonies, trespasses and other misdemeanors comnijtti;! in the said county ; to the sheriff of the county of , rr^cM ing ; On the part of our sovereign lady tlie Q,ueen, we^oin! mand you, tliat you omit not by reason of any liberty wltjiin your county, but that you cause to come before us and othet our fellow justices assigned to keep the peace in the said county, and also to hear and determine divers felonies, tres. passes and other misdemeanors, in the said county committed on the day of , now next ensuing, at the lioiiVof ten in the forenoon of the same day, at in the said county good and lawful men, of the body of your coimtv then and there to enquire, present, do and perform, jiH ^^a singular such things, which on the behalf of our sovereifrn \r^^,. the Queen, shall be enjoined on them ; also, that you niiike known to all coroners, kee])ers of gaols and houses of currec. tion, high constables, and baililfs of liberties within the comitv aforesaid, that they be then and there, to do and fulfil such i!iin4 which by reason of their oflices, shall be to be done : moreov(T that you cause to be proclaimed through the said couiitv, in proj)er j)laces, the aforesaid sessions ol the peace, to be liolden at the day and i)lace aforesaid ; and do you bo then iIumc to do and execute tliose things which belong to your olfice ; anj have you then there, as well tlie names of jtirors, cnronors. keepers of gaols and of houses of correction, high constaljlfj and bailiffs aforesaid, as also this precept. Given under our hands and seals, at in the county afore. said, the day of in the year of the reign of ,(!ec, The Style of the Sessions. [Burn.] County of , I The general quarter sessions of the ponce, I to wit. j holden at , in and for the said coiinty, on the day* , in the year of the reign of our sove- reign lady Victoria, of (Jreat Britain and Ireland, Uueeii, de- fender of the faith, and so forth, before J. P. and K. P. es(|iiires,| and others, justices of our said sovereign lady the (iutni as-f signed to keep the peace in tiie said county, and also lu liearl and determine . and K. P. esquires, Liiin lady iheaueeiuis. ^ounty, and also tu hear ^ses and other misilemoa.| [d so forth. the United Kinc^domoll lf"nderofthcfaiil.;ioA nd you. and every of yoj all excuses ceasing, yo fore our justices ass,gned| to keep our peace in the county of , and also to hear and determine divers felonies, trespasses and other misdemeanors, in our said county committed, at the general quarter sessions of the peace to be holdcn at , in and for the said county, on the day of now next ensuing, at the liour of o'clock in the forenoon of the same day, to testify the truth, anil ""ive evidence before the grand inquest as well as the court, touching a bill of indictment to be preferred against A. in a case of larceny, [trespass and assault, or any other cog- nizable ofTence,] 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 day of A Suhpccna Ticket for a Witness. Jlr. A. W. By virtue of a writ of subpmna to you and others directed and herewith shewn unto you, you are required per- sonally to be and apjjoar at the next general quarter sessions of the peace to be holdcn at , in arid for the county of , to testify the trutli, and give evidence before the grand inquest js wcllas the court, touching a bill of indictment to be pre- ferreil against A. O. in a case of larceny, [trc^pas^s ami asKanlf, {;: (tit the ats^e mai/ hr,'\ and herein you are not to fail, upon njjii of pounds. Dated the day of , in the year of fnir Lord SHERIFF. The sheriff is an ofTiccr of very great antiquity, his name },tin" derived from the Saxon word sciiycrcfa, .signifying tho rrtiv bailiff, or officer of the siiire. Ho is called in Latin fkc-comcs, as being tho deputy of tho earl or couws, to whom 1 the custody of tho sliiros in England is said to have been i committed at the first division of the kingdom into counties : kt. though the sheriff be called vice-comes, yet ho is entirely I JDilcpeiident of the earl; the king, by his letters patent, committing custodium eoviitatiis to the sheriff, and to him |jlone.-l Bl. Com, i58!) ; f) Burn. 230. In this province, the sheriff is appointed by letters patent mailer the great seal, and holds liis office during pleasure. In his ministerial capacity the sheriff is bound to execute lall process issuing from tho king's courts of justice. In |tk commencement of civil causes he is to serve the writ, ) arrest, and to take bail : when the cause comes on for [rial he must summon and return the jury ; when it is tilermincd, he must ace tlie judgment of tho court car- lied into execution. In criminal matters ho also arrests nd imprisons ; ho returns the jury ; he has the custody of lie delinquent ; and he is bound to execute tho sentence of he court, even if it extend to death itself ; and it is no ex- ^ 1 1 k .|.C' W'%' r-i. !ii'^' 760 sigetffr* IW'W'fi Fit nil il . <^ *■( 1 » M n^i,- I hi'!* I J cuse to the sheriff to return that he could not execute anv process because of resistance, for he may take with him in every case of need the power of the county, to enforce ohQ,\\. ence to the king's writs or other process of law. — 13 7-,;^ j 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 constables, and other inferior officers ; but he need not go in person to execute, but may authorise another to do so. — 2 Katv. c. 13, § 29. Ho Is ajg^ 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 Haw. 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 contemnt Id. c. 22, § 2. ^ ■ The sheriff has also the keeping of the gaols, and is answer- able for all escapes suffered by the gaolers, to the kinc, if it be a criminal matter ; or, in a civil cause, to the party injured- and by provincial statute *32 Geo, III., c. 8, he has tlie apl pointmcnt and removal of the g.aoler. As the King's bailiff, it is the business of tlio sheriff to preserve the rights of the king within his aihvick. — Fort's- cue, c. 24. He must seize to the kini^ s use, all landij devolved to the crown by attaimhr or escheat. — 1 Bl Cnm 344. By 3 G. I., c. 15, § 17, a sheriff guilty of extortion forfeit?, to the party grieved, treljle damages, and double the sum e.^ torted, and also X200. When anew slieriff is appointed and sworn, his predcco?- sor (or in case of his decease, liis under slieriff) sets over bv indenture all the prisoners severally by their names, tofrotlier with all tlic writs, wherein must be comprehended all the actions which the old sheriff had agaimst every )»risonor;f and till the delivery of the prisoners to the new slier they remain in custody of the old sheriff. — Wood, Inxt. G. iJ c. 7. *J]y the 3 W. IV., c. 8, entitled, "An Ac, *■ regulations relating to the office of slitilt' - and to require the several sheriffs of t'us pr security for the due fulfilment of the duties o is enacted by § 1, tiiat the sheriff of each district sdiall cntcl into a bond to his Majesty, in the penal sum of .£1000, td gether with two sureties to be approved by the inspectoi general of public accounts, in £500 each, for the paymci of all moneys due to the crown ; which bond shall bo in tij ''■••■- proviiicoj ■ ince, to ;.'ivf icir office."!! S!ierffr* 761 c gaols, and is answcv- olc*rs, to the kiu^, if It . to the party hijuvcd; i'., c. 8, bo lias tUo ap- jnops of the i^liovift' to X his ■ aihvick.— -Foits- I tin' s use, ail iawis ,r escheat.— I Bl ^""^■ nd s^vorn, his pvedccos. cr shcriiY) v'cts over by ^ ■,y their nawos*, to.trotlier /comprchcnaoa all tk ajrainst every prisoner; ,cvs to the new M\ An Acv '■■ ^r:M:o ccvbin duties -'-''"''V^'^-. each district >dmU cr.er p'cnalsumofXlOlH proved by the mspccior. reach, fov the payment ■^.icbboml^hallbomth Qd form given in schedule A. or in words to the like efTect. § 2. The sheriflF of every district shall provide two or four suffi- cient sureties, who, with himself, shall enter into a covenant under seal, joint and several, according to the form in sche- dule B., or in words to the same effect ; which covenant shall be available to, and may be sued upon by, any person suflFer- ing damages by the default of any such sheriff. § 3. Such sureties shall be approved of by the justices in sessions, and a certificate thereof given by the chairman. § 4. The bond to his Majesty shall be deposited with the inspector-general, and the covenant shall bo made in duplicate, one of which shall be deposited with the secretary of the province, and the other filed with the clerk of the peace. § 5. Any person may examine such covenant, and have a copy, on payment of Is. 3d. for the examination, and 5s. for the copy to the clerk of the peace. § 6. (a) That such bond and the covenant shall be renewed every four ^ears, either with the same or other sufficient sureties, to be certified as aforesaid. § 7. When- ever the office of sheriff shall become vacant, his successor shall not be appointed until he has first filed the requisite covenant and bond, with sureties. §8. And no person shall be appointed sheriff who shall not be possessed of real estate in this province of the actual value of X750 above incum- brances ; and shall, before he receives his commission, file an affidavit of the fact, in the office of the secretary, to be sworn before the chairman of the quarter sessions. § 9. In cases of death, absence from the province, or insolvency of any surety, new securities shall bo given. § 10. The sureties, apprehensive of the solvency of their principal, may notify the same to the Lieutenant-Governor by affidavit to that effect, sworn before a commissioner of the King's Bench, and there- upon the sheriff shall be notified by the secretary to furnish new security, or on affidavit deny that he is 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 quarter sessions of the district, he shall be removed from office. § 11. When any new sure- tics shall be given, the former sureties shall not be discharged from any defaults previous thereto. ^ 12. Actions 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 became liable, shall be thereby discharged ; and the sheriff shall, within four months, give new securities. § 14. If the damages recovered and (a) The 6th and 19th clauses of this act have been repealed by the |4it6V., C.91. 96 irii«ii nm 7Q3 sbiftvm. paid by any surety is not equal to the amount for which he is bound, judgment may be obtained against him for any residue § 15. Upon proof by affidavit, or otherwise, to the general quarter sessions, that any security has been discharged or is insolvent, it shall be lawful for the sessions to notify the sheriff thereof, and such sheriff shall renew the covenant within four months after such notice. § 16. Executions ♦gainst the sheriff and his sureties shall 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 prder otherwise ; but in vexatious applications the court may award costs to the sheriff. § 18. The sheriff shall not be entitled to any fees on any writ placed in his hands fifteeu days before the return day, if he does not return the same to the attorney within four days after such return, or enclose the same by post within that time, to such attorney. § 19. U\ Any sheriff neglecting to give the reciuired security shall ho removed froru office. § 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 London, district of Newcastle, Midland district, district of Johnstown, Eastern district, in the sum of XI 000 eacli and two sureties in £500 each, or four sureties in £2i)0 each' and the sheriff of the Western district, district of Bathurst district of Ottawa, in the sum of i^500 each, and two sureties into j£250 each, or four sureties in £12f) each ; and that the sheriff of any new district hereafter to be formed, shall give secuiity, himself in £1000, and two sureties in £500 each or four securities in £250 each. § 21. The sureties entering into any such covenant shall be held liable for any omission or default of the sheriff, in not paying over moneys received by him ; and for damages sustained by the parties to any legal proceeding, in consequence of wilful or negligent miscon- 1 4uct in office, the sheriff shall be joined in any action ugainsti the sureties. § 22. Notwithstanding any forfeiture of office I the sheriff shall be continued in office until the ai)i)ointinentl Qf his successor, subject to his prior liabilities. § 23. Upon! the death of any sheriff, the deputy sheriff shall continuef to execute the office in his name until the appointment of successor ; and such deputy sheriff shall be held responsiblej as the sheriff deceased would have been ; qnd the deceasci sheriff's sureties shall also stand as a security for sucU Underfsheri^l See also " Public Officers." (a) S«e note (a) page 761. ount for which he is him for any residue, fise, to the general jeen discharge*!, or jasions to notify the renew tho covenant § 16. Executions liall he first levied shall he liable to ilesa the court shall ations the court may J sheriff shall not bo in his hands fifteen not return the same ich return, or enclose sh attorney. § 19. (a) lircd security shall bo ints to be entered into ets, shall specify the viz. : — sheriffs of the strict of Gore, district dland district, district e sum of XI 000 eacli, sureties in X2o0 each ; ^t, district of Bathursl, each, and two sureties .25 each ; and that the be formed, shall give sureties in X500 each, The sureties entering liable for any omission (T over moneys received "by the parties to any ful or negligent miscoii- d in any action against any forfeiture of office, e until the a])poiutment labilities. § 23. Upon y sheriff shall continue 1 the appointment of a all he held responsible, been ; a,nd the deceased as a security for such Schedule A. ^68 )fficer8. 761. Form of Bond to the QuMn. Know all men by these presents, that we, A. B, sheriflrof the oounty of , C. D. of , in the county of , esqu're, and E. F. of , in the county of , are held and firmly bound to our sovereign lady the Uuccn, her heirs and succes- sors, in the several sums following, that is to say : A. B. in ihe sum of one thousand pounds; the said C. D. in the yum of five hundred pounds ; and the said E. F. in the sum fif five hundred pounds ; to be paid to our srirereign lady the Uueen, her heirs and successors, for wliich payments to be vvell and tmly made, we bind ourselves severally and respectively, iind each of us, our heirs, executors and administrators, firmly hy these presents, sealed with our seals, and dated this , day of , in the year of our Lord Th" condition of this obligation is such, that if the above J.oiinden A. B., his executors, or administrators, shall well and laithfully account for, and pay over to her Majesty's receiver (.'enoral of this province, or to such person as may be authorised to receive the same, all such sum and sums of money as he shall receive as such sneriff as aforesaid, for our said lady the Uucen, her heirs or successors, from the date of this obligation liiitil 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.] [L.S.] Signed, scaled, and delivered in in the presence of Schedule B. Form of Covenant. Know all men by these presorts, that we, A. R., sheriff of ;Iie county of , C. D. of , in the county of , and E. F. of , in the county of . (when four .■•areties are given, the names of the other two to be inserted m like manner), do hereby jointly and severally, for ourselves, and for each of our heirs, executors and administrators, covenant iind promise, that A. B. as sheriff of the said county shall well and duly pay over to the person or persons entitled to the same, all such moneys as he shall receive by virtue of his said office of sheriff, from the date of this covenant to the expiration of four years thence next ensuing, and that he nor his deputy i^hall, within that period, wilfully misconduct himself in his said office, to the damage of any person being a party in any legal proceeding, nevertheless, it is hereby declared, that no greater murtler any person, l^all be endangered, nvicted tlicveof shall nlawfully exhibit any ti.f any sbip or vessel ili"ciously ilo any thing f any sbip ov vessel in ,eing convicted thereol shall unlawfully and e destroy any sliipov hI or in an uniinished nously set fire to, cast , or vessel, with intent vart owner of such sluj) ho same, or any person dcrwritc any pohcy o on the freigbt thereof, hall bo guilty of felony, liable, at the discretion d labour in the provin- natural life, or tor any „ or to be imprisoned m c'ment for any term not ,nva«emiJ«todarna|reor bstancc is made telony, the provincial pemtcn- or less than three years; seding two years. ^ ressels.—Wreck. IRS. SOLDIERS. 765 By statute 2 & 3 Anne, intituled, " 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 iiny officer or soldier in her Majesty's army shall, either upon land, out of England, or upon sea, hold correspondence with any rebel or enemy of her Majesty, or give them ad- vice or intelligence, cither by letters, messages, signs or ^ tokens, or any manner of way whatsoever, or shall treat with such rebels or enemies, or enter into any condition with them, without her Majesty's license, or license of the general, lieutenant-general or chief commander, then every such person so offending shall be deemed anJ adjudged to be ruilty of high treason, and suffer such pains and penalties % in case of high treason. *By 3 W. IV., c. 3, intituled' " An Act to reduce the number of cases in which capital punishment may be inflicted," &c. it is enacted by § 14, that nothing in this act 0Mnc?8 per annum tor exercise any otber calling a license may be rcciuired ',emadc after tbe passing 3ftbcl3 & 14 v., c. 65, before tbe final passing 1 and approved b}; araa- Bctors of tbe municipality. las sball be determmedhj '•tbat purpose,) after pulj- ^e proposed by-law, slial> times in eacb newspaper iunicipality,orifnonebe| icor more news; :^eror town nearest to such U'n , and also posted up i"« s in sucb municipality'. \ see title ^'By-lam. llnnkeeperB." SbiatuU llAliottr* 767 STANDARD MEASURE. *By 4 G. IV., c. 16, § 1, tbe *32 G. III., c. 3, la rcrealcd. j 2. Xn appropriation of ^£75 sterling is made for obtaining a complete set of weights and measures according to the standard in England ; the same to remain in charge of the provincial secretary; § 3, who shall furnish eu.b district with a true standard of durable materials, when requested, and at the cost of the district. By 16 V-, c. 193, § 2, it is enacted, that after the passing of this act the following rates shall be the standard weight, which in all cases shall be allowed to be equal to the Win- chester bushel, viz. : — Wheat Sixty pounds. Indian Corn Fifty-six jjounds. Rye Fifty-six pounds. Peas Si-'tty pounds. Barley Forty-eight pounds. Oats Thirty-four pounds. Beans Sixty pounds. Clover seed Sixty pounds. Buckwheat Forly-eicrht pounds. Timothy seed Forty-eight pounds. Provided ahvays, that the effect of any contract made Wore the passing of this act, shall not be varied by any- thing herein contained. § 2. Upon any sale or delivery of any description of grain or pulse, in this act mentioned, which shall be hereafter made, and in every contract for the sale and de- livery of any such grain, pulse or seeds, the bushel, shall be ta- ken and intended to mean the weight of a bushel, as regulated by this act, and not a bushel in measure, or according to any greater or less weight, unless the contrary shall be pgrecd upcn by the parties. See also " Wei(jhts and Measures^ STATUTE LABOUR. By 12 v., c. 81, § 31, toAvnship municipalities are empow- ered to make by-laws to enable landholders to compound for statute labour for any term not exceeding five years, at any rate not exceeding \_five shillings hy the late statute 20 V., p. 6] for each day's labour; and for enforcing the perform- lee of statute or road labour, or payment of commutation loney therefor ; and for imposing and collecting penalties id fines not exceeding in any case £5 currency, and rea- Dle punishment by imprisonment, not exceeding twenty lys for the breach of any such by-laws. § 219. All acts >%. ■f '■■■ I'f: fc4|:| ,j,i, ■:'^j-|.i p' S'l ''I', if': ' -r:] 14' I'M. !;;■■? i-^a 'liil'? ! ill 768 Statute Haliottt* and parts of acts and provisions of law of the parliamer this province, or of the late province of Upper Canada ; all acts, by-laws, rules and regulations thereupon passei any township meeting, district council, board of police, t or city council in Upper Canada, in force in Upper Cat immediately before the time when this act shall come force (1st January, 1850), in so far as the same may b( consistent with or contradictory to the provisions of tiiis or which may make any provisions in any manner prov for by this act, other than such as is hereby made in s matter, shall be and they are hereby repealed. By the General Assessment Act, 10 V., c. 182, § every male inhabitant of any city, incorporated town or lage, of the ago of 21, and under 60, not otherwise asse or exempted by law, or if assessed, his taxes do not am; to ten shillings currency, shall, instead of statute labour taxed yearly ten shilling3, to be levied and collected as o local taxes. And no such person shall be exempt from tax herein made by reason of his producing a certificate he has performed statute labour elsewhere, unless he actually domiciled out of the limits of the city, town or lage at the time h*^ so perforraeil statute labour. § 36. . every male inhabitant of any township between the i aforesaid, shall be liable to two days' statute labour on roads and highways in such township ; and every part the assessment roll shall, if the property be assessed Al not more than £50, be liable to At more than,., At more than.., At more than... At more than.., At more than... At more than... At more tlian... At more than... 50, but not more than £100 100, but not more than 150 150, but not more thtm 200, but not more ihan 300, but not more than 400, but not more than 500, but not more than 000, but not more than At more than... 8(K), but not more than 2(K) 300 400 5(K) (500 HOO 1000 to to to to to to to 2 (lays' 3 4 7 8 9 to 10 to 12 do. do. do. do. do, do, do du do SI And for every .£200 above £1000, one day ; unless tli nicipality of such township shall direct by by-law a money to bo paid in commutation of such labour : pro that the municipality may by by-law reduce or increai number of days' labour at their discretion. § 37. I collector shall not bo able to collect such tax, he shal the same by distre,«3 and sale of the goods and chat the party in default as other taxes, and if there be r tress sufficient to satisfy the sum due, it shall be law the head of any such municipality, or any justice out* iw of the parliament of of Upper Canada ; and »s thereupon passed by il, board of police, town force in Upper Canada this act shall come into as the same may be in- lie provisions of this act, in any manner provided is hereby made in such J repealed. ct, IG v., c. 182, § 33, incorporated town or vil- not otherwise assessed his taxes do not amount 5tcad of statute labour, K' ied and collected as otkv shall be exempt from tk .reducing a certificate tkt elsewhere, unless lie ^vas its of the city, towTi or vil. ,tatute labour. § 3b. And )wnship between the a?ej ays' statute labour on the iship; and every party on •operty be assessed be liable to 2 days' labour, lan £100 lan 150 um II an lan \an lan lan lan '2(K) 300 400 :m (500 800 1000 to to to to to to to :i 4 () 7 8 9 to 10 tola do. do. do. do. do. do. do. do. do. U, one day ; unless the m\ direct by by-law a sum ot , of such labour : providcilJ -law reduce or increase thel IV discretion. § 3T. Ktliel licet such tax, he shall evf the goods and chatto!'^^.| pes, and if there be no disj fm due, it shall be lawfuHjJ llity, or any justice ot tkJ SUam Ttnutlu. 769 peace of the locality, upon complaint that such party ap- pears upon the collector's roll to be rated for such sum, that the same has been duly demanded and the party has neg- lected to pay the same, and that no sufficient distress can be found, to issue a warrant under his hand and seal and to commit the party to the common gaol of the county for any time not exceeding six days, unless the amount and costs be sooner paid. § 38. Non-residents' statute labour to be com- muted at 2s. dd. per diem (a) and collected as other taxes. STEAM VESSELS. By 20 v., c. 34, § 1, inspectors appointed under the 14 & 15 v., c. 126, or under this act, are required to examine and see that suitable and safe provisions are made throughout such vessels to guard against loss or danger from fire, and no certificate shall be granted if the provisions of this act are not complied with, or if any combustible material shall be placed at less than 18 inches distant from such heated metal or other substance likely to cause ignition, unless a column of air or water intervenes sufiicient at all times to prevent ignition, and when wood is so exposed to ignition, as an additional preventive it shall be shielded by some incombust'ble material ^ so as to leave the air to circulate freely between such material and the wood. § 2. Every steam vessel carrying passengers shall have not less than 3 double acting forcing pumps to be kept in order and ready at all times for immediate use. § 3. Inspectors may examine the boilers of every steamer whenever they see fit (and once a year at the least) and subject the same to hydrostatic test, the pressure not to exceed 150 pounds to the square inch ; the owner providing the apparatus. § 4. Rules to be observing in testing boilers; no safety valve to be loaded be- yond the pressure allowed by certlucate. § 5. The foregoing sections to co:ne into force on the Ist April, 1858. § 6. In- spector may exaioine steamer, and if he considers such vessel unsafe he shall rtnort to the Governor, who may by order direct that such vessel shall not be used until so permitted by the inspector, and any vessel run contrary thereto shall be liable to forfeiture and seizure by the collector of customs. \ 7. Inspectors may ask all proper questions of the steamer's owners, officers or engineers, or other persons in charge con- cerning the same, or any accident that may have happened ; any such person refusing to answer, or answering falsely, or I preventing inspection or obstructing the inspector shall be subject to a penalty of XIO, recoverable before any justice. !i^' i> ;/li#':fiT' :4:fi,.;l l^,j,:'li::^l> [a) But may be iucreasod to 6s. under eaid statate 20 V., c. 6. ■97 'II 770 Sttmnfa(tj? eontilctfon. § 8. Inspectors are to see that the safety valves are suflBcient and in good working order. § 9. Steam-guages to be open to the view of all the passengers, and constructed as the inspector shall direct. § 10. The master to report -within 48 hours after any defect or injury to the boiler or machinery to one of the inspectors, under the penalty of £60 for every case of omission. See also title ^^Eailwai/s" and the statute therein referred to, 18 v., c. 92, which contains provisions against stealing and forging tickets, or orders for any free passage on railways steam or other vessels. STILLS. See ^^ Distillers:' iii' K'' f'-y; (i ; jr. ■ ,! '■ ■ ,. i ■. 4 ■ !,'■ II.- . I ' : I il"'-:' ■jtj i: i! SUMMARY CONVICTION. The "Petty Trespass Act," *4 W. IV., c. 4, seems to be entirely superseded (although not expressly repealed) by the several statutes 4 & 5 V., cc. 25, 26, 27, which comprise upon an enlarged scale and in a more distinct form, the offences intended to be comprised in the *4 W. IV., c. 4. The following is a brief summary of these statutes. Under the 4^5 v., c. 24, no penalties are imposed recoverable upon summary conviction. But § 10 provides that in all cases of summary conviction, persons accused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney. Under the 4 ^ 5 V., c. 25. By this statute, § 23, having unlawful possession of wreckc roperty ; (a) § 24, or offering same for sale ; § 30, stealing ain og, beast, or bird, not being the subject of larceny at com mon law ; {b) § 31, stealing, cutting, breaking, rooting up, otherwise destroying or damaging, with intent to steal cany tree, sapling, or shrub, or any underwood ; (c) § 32, or any liv or dead fen<3e, or any post, pale, or rail set up as a fence, or any stile or gate ; {d) § 34, stealing, damaging, or destroy ing with intent to steal, any tree, sapling, shrub, bush plant, root, fruit or vegetable production, in any gard orchard, nursery ground, hot-house, green-house, or con servatory, (c) renders the offender or offenders liable to cer tain penalties, to be enforced by summary prosecution. Thi following is a brief summary of these statutes ; § 55. Any per son found committing any offence punishable by indictment (a) Bee title "Wreck," (c) See title " Trees." (6) See title "Dogs." ( rlif ;|.' fe.i!?;f" mm IfllfP t'\ l^i#'Rlm' 'fi'^^ will*:* !?!!: « I iM'-'' ■rite; ■.'•-: 'V-K' :■ ; ■ 772 Sttttittiarj? eoitUfctfon* £10, unless sooner paid. § 60. In case of a first con- viction, the justice may discharge the offender, upon his making such satisfaction to the party aggrieved for damages and costs, or either of them, as shall be ascertained by such justice or justices. § 61. The Governor empowered to par- don any person imprisoned under this act. § 62. Conviction and punishment under this act to be a bar to any other pro- ceedings. § 63. Form of conviction to be as follows ; « Be it remembered, that on the day of jn jjjg year of our Lord at in the district of (asthr case may be) A. O. is convicted before me, J. P., one of ijer Majesty's justices [or before us J. P. and S.L., justices] of the peace ot the said district, for that he, the said A. O. did (spccit), the offence and (he time and place when and where the satne ^eas committed, as the case may he, and on a second conviction, state Mc first conviction) and I, the said J. P. [or, we, the said J. P. and S. L.] adjudge the said A. O. for his said offence to be im- prisoned in the [or to be imprisoned in the g^d there kept at hard labour] for the space of [or, to forfeit and pay here state the penalty actuallij imposed, or state tJu: penalty and aho the value of the articles stolen, embezzled or taken or the amotint of the injury done, as the case may 6e] and (in anu case where costs shall be awarded) also to pay the sum of for costs, and in default of immediate payment of the said sum [or sums] to be imprisoned in the or to be imprisoned in the , and there kept to hard labour for the space of unless the said sum [or sums] shall be sooner paid, [or, and I or we] order that the said sum [or sums] shall be paid by tin said A. O. on or before the day of that the said sum of (»'. e. the penalty only) shall be paid to me (orns.l the convicting Justice or Justices) and that the sura of (/. f. M/l valtte of the articles stolen, or the amount of the injury done) shalll be paid to C. D". (the party aggrieved, unless he is tmknomi^oA has been examined in prooj' of the offence, in which case state thai fact, and dispose of the ichole like the jienalty as before) and {ij'tlX justice or Justicesshall think 2)roper to awa7'd the comj)lainant his coshi I [or we] order that the said sum of for costs shall be paid to C. D. [the complainant.'] Given under my liand and scalfori our hands and seals] the day and year first above mentioned. § 64. One justice may receive the original information, ami issue the summons or warrant to appear before two or morf justices ; and after examination upon oath, and adjudicatioi by any such two justices, the subsequent proceedings respectf ing the penalty, fine, imprisonment, costs, or other mattel relating to the offence, may be enforced by cither of the sail justices, or by any other justice of the same district, count/ city, town, or place ; and when the original complaint information shall be made to any justice different from tli ion. Lse of a first con- offender, upon his rrieved for damages ascertained by sucli empowered topar- ;. § 62. Conviction ,ar to any other pro- be as follows :— day of in the istrict of (as tk me, J. Pm one of her S.L., justices] of the ■ said A. O. did (specify nd u-here the smneim cond conviction, state tk we, the said J. P. and said oflence to be im- oned in the and of [or, to forfeit and 7(1 imposed, or state tk tolen, embezded or taken, :ase may fee] and (in mj to pay the sum of jayment of the said sum or to be imprisoned in iir for the space of . e sooner paid, [or, and I ns] shall be paid by tk' ■; j)f that the said all be paid to me (oms, the sum of ('•f."'; of the injury done) iU\ unless he is mknou-n,or in ^chich case state tkt 'alty as before) mi {!jth J the complainant hi coitsi for costs shall be paid ier my hand and seal [or. . first above mentioned. ■aricinal information, and pear before two or move n oath, and adjudication Lent proceedings respect- ;, costs, or other mattei ■ced by either of the said be same district, county, ,0 original complaint or istice different from the Summati? eonliUtlon. 773 convicting justices, the form of conviction shall be made conformable. § 65. When the conviction (a) shall exceed 15, or the imprisonment one calendar month, or the con- viction shall take place before one justice only, the defen- dant may appeal to the next quarter sessions which shall be holden not less than twelve days alter the day of con- viction, upon giving to the complainant a notice in writ- ing of such appeal, and of the cause and matter there- of within three days after the conviction, and seven clear days before the sessions ; and shall either remain in custody until the sessions, or enter into recognizance with two suflScient sureties, before a justice of the peace, con- ditioned to appear at the sessions, and try such appeal, and abide the judgment of the court thereupon, and pay such costs as shall be awarded by the court ; and on such being rjiven, and recognizance entered into, the justices shall liberate such person if in custody ; and the sessions shall hear and determine such appeal, and make such order, with or without costs to either party, as to the court shall seem meet; and in case of the dismissal of the appeal, or affirmance of the conviction, the court shall adjudge the offender to be punished according to the conviction, and pay such costs, if any, as shall be awarded ; and shall, if necessary, issue process to enforce such judgment. § 66. Every justice before whom conviction shall be had under this act, shall transmit such conviction to the next general quarter sessions, to be kept among the records; and upon any prose- cution for a subsequent offence, a copy of such conviction, certified by the proper officer of the court, or proved to be a true copy, shall be sufficient evidence to prove such former conviction. Prosecutions a,;ainst any person acting under I this act to be commenced within six calendar months, and notice in writing of such action, and of the cause thereof, to be given to the defendant one calendar month before commencement; defendant may plead the general issue, and give this act and special matter in evidence. Usual provi- sions as to costs. § 69. All fines, «1 3., imposed by this act |to be current money of this province. § 70. All former acts fepugnant to this act repealed. Under the statute 4^5 Vic, c. 26. By § 20 of this statute, maliciously destroying or damaging iny tree, sapling or shrub, or any underwood, wheresoever (u) Tbel3 & 14 V,, c. 64, now gives tho right to appeal in all oasca. See Itle "Appeal" as to time, &o. m< \ :l 1 Mi i^ldi' '•-;• "til' : ll mm !i: ■; :d K¥^i "ill ' '" t ■I Iff l' " v' ' l-vi Wl' ■y.Wi^ ml 1 's, i ^^i'! J ■ J < ^^ri^. i'i^!;.!, . ■•; ft ; "I- ' Mj' .; ; I ; h i^in^i' I* ; "'•'*'• ''^lillllll 1.1 WMII 774 Stttnttiarj^ eontiCcUon* the same may be respectively growing, to the value of on shilling; {a) §21, or maliciously destroying, or damaging ^mi intent to destroy, any plant, root, fruit or vegetable in an^ garden, &c. ; (i) § 22, or any cultivated root or plant used fo' the food of man or beast, or for medicine, or for distillino or dyeing, &c. ; (c) § 23, or maliciously throwing down o destroying, &c., any fence, or any wall, style or gate ; [d] §24 or wilfully or maliciously committing any damage, or injurv or spoil, to or upon any real or personal property whatsoeve for which no previous remedy (c) is provided, also subjects thi the offender to the particular penalties mentioned, upoi summary conviction. § 25. Every punishment and for feiture by this act imposed on any person malicioush committing any offence, whether punishable by indictnieni or upon summary conviction, shall equally apply anc be enforced, whether the offence be committed from malic( conceived against the owner of the property or otherwise § 28. Any person found committing any offence punishabl( by indictment or summary conviction, may be immediateh apprehended, without a warrant, by any peace officer, or h the owner of the property injured, or his servant^ or anv person authorised by him, and forthwith taken before some neighboring justice, to be dealt with according to law. § 29. Prosecutions by summary conviction under this act to be commenced Avithin three calendar months after the offence committed, and not otherwise ; and the evidence of the partj aggrieved, shall be admitted in proof of the offence. § ;]i) Offenders charged on the oath of a credible witness to b( summoned by any justice; and in default of appearanc (upon proof of due service of summons, by personal deliverv or by leaving the same at the offender's usual place of abode' such justice may determine the case ex parte, or issue hj warrant for the apprehending such person and bringing bin before h'mself or some other justice ; or the justice may, 1 he think proper, issue such warrant without any previoJ summons (unless otherwise specially directed) ; and the jul tice before whom the party shall appear or be brought m hear and determine the case. § 31. Any person who shal aid, abet, counsel, or procure the commission of any offenj punishable by summary conviction under this act, shall, I conviction before a justice of the peace, be liable for evel such offence of aiding, &c., to the same forfeiture af punishment as the principal offender. § 32. Forfeiture 1 (a) See title "Trees." (b) (c) See title "Gardeas." (rf) Se«Utle "Fences," (e) S«e titl* " Malicious Iiyur}'.| ton* ;o the value of om g, or damaging wltH or vegetable in any oot or plant used for ine, or for distilling, y tHrovring down, or vie or gate -, ((i) §24, ty damage, or injury, [ property whatsoever ided, also subjects the ties mentioned, upon punishment and for- y person maliciously ishable by indictment I equally apply and committed from malice )roperty or otherwise. any offence punishable may be immediately any peace officer, or hij or his servant, or any with taken before some according to law. §29. under this act to be onths after the offence ,hc evidence of the party f of the offence. § 6»). credible witness to be default of appearance „q bv peisonal delivery, r'susuri place of ahode), e ex parte, or issue k person and bringmg lam >e- or the justice may, i{ It without any previous ' directed) ; and the 3UJ ppear or be brought j^j I Any person who sWl| ommission of any oto under this act, shall, oi eace, heliabkforever ^ame forfeiture an, § 32. Forfeiture 101 Sttinmavfi conUfctfon* 11 >7*7>r tions against any person acting under this act to be commenced within six calendar months, and notice in writing of such action, and the cause thereof, to be given to the defendant one calendar month before commencement. Defendant may plead the general issue, and give this act and special matter in evidence. Usual provision as to costs. § 41. All fines imposed by this act to be current money of this province. Under the 4 jf 5 V., c. 27. By this statute, § 26, assaulting any seaman to prevent hira from working at or exercising his lawful trade or business, or any person to hinder him from buying or selling grain in any market or other place, or any person having the care or charge of the same ; (a) § 27, committing any common mault or battery on any person ; (6) § 31, or disturbing religious worship, (<;) renders the offender or offenders liable to certain penalties on summary conviction. § 32. In de- fault of payment of any fine imposed under this act, together with the costs, within the period specified at the time of con- viction, the amount to be levied by distress, and in default of distress the offender may be committed to the common gaol for any term not exceeding one month, unless the fine and costs are sooner paid. § 33. The party convicted may appeal to the next general quarter sessions on giving to the other party notice iu writing within three days (d) after such conviction, and seven days before the sessions, and remaining ill custody, or entering into recognizance with two sufficient sureties, before a justice of the peace, to appear and try such appeal and abide the judgment of the court. § 34. The court authorised to empanel a jury to try the matter : I ^midedy that such court shall not in any case adjudge the payment of a fine exceeding jG5, in addition to the costs, or 1 to order imprisonment exceeding one month. § 40. One justice of the peace may hear and determine offences punish- able by summary conviction under this act. § 41. Prosecu- tions to be commenced within three calendar months. § 42. I Form of conviction. Be it remembered that on the day of in the year of lour Lord , at in the county of (or riding, division, [district, city, &c., as the case may be,) A. O., is convicted Ibefore me {ixaming the Justice,) one of her Majesty's justices (a) See title "Assault," page 59. (b) See same title page 60. (c^ See title "Public Worship." [i] See title "Appeal," as to the time, &c., under 18 k 14 V., e. 54. 98 W- '1 [|':i '. .« ' yl iim If I m'm'' fi;- nfi;'ji^:-ir :| !ii I- ■*■; i 'f1c^ 778 Summatfi conlifctfon* Oh of the peace for the said county, (or riding, &c.,) for that he iho said A. O., did {specify tlie offence, and the time and plQ^^ when and where the same was committed, as the case muy Ic ) and I the said justice adjudge the said A. O., for his said ofTence to be imprisoned in the (or to be imprisoned in the and there kept at hard labottr) for the space of , ^„. ^ adjudge the said A. O. for his said offence to forfeit avdjmiiih' turn of ,) ilicre state the amount of the fine imposrd,) and algA to pay the sum of for costs; and in default of immediate payment of the said sums, to be imprisoned in the f^j. the space of unless the said sums shall be sooner paid; f, and I order that the said sums shaft be paid by th^ said J. 0. ( or before the day of ,) and I direct that the said sum of (i.e., the amount of the fine) shall be paid to of aforesaid, in which the said offence was committed to be by him apj)lied according to the directions of the statnio in that case made and provided; (or as the case ma// hi;,) n^^i order that the said sum of for costs shall be paid to C. D. (the party aggrieved). Given under my hand, the day and year first above mentioned By 14 & 15 v., c. 119, § 4, it is enacted that in all cases of summary conviction before any one or two justices of tlio peace, under the provisions of the 4 & 5 V., chs. 25, 20 27 it shall bo lawful for such justice or justices, in his or tlieir discretion, to issue his or their warrant to levy by distress and sale of the offender's goods and chattels, the amount ofl fine and costs imposed, and in default of the same beinc levied or made, the offender or offenders may be committel" to the common gaol or house of correction for the period .i in the manner prescribed by the above-mentioned statute; or to proceed, as heretofore, by committal for default of pay ment, instead of issuing such distress warrant. § 5. In cases where costs arc payable by parties who have failed prosecuting with effect, it shall be lawful for the justice justices before whom complaint made, in his or their discr tion, to issue his or their warrant to levy by distress and sa of the goods and chattels of such person so failing to pr cute, such costs as shall be determined by the justice orjui tices to be payable by him or them. Proceedings upon Summary Conviction under the 16 v., c. 178. Whereas it would conduce much to the improvement oft administration of justice within that part of this provi called Upper Canada, so far as respects summary convictio and orders to be made by her Majesty's justices of the pea therein, if the several statutes and parts of statutes relati; aiu osc in ;fon* *^ ^'^ ^Ini as the case may be,) I., for his said offence, irlsuned in the ;e of . («"' / . to forfeit avdiiai/lh ane {mposnl,) and also default of immediate med in the for ill be sooner paid ; (or id hi/ tli'^ said A. O.on I direct that the said sliall be paid to .'lice was committed, lo ctions of the slaluto in the case maij he,) and 1 ; shall be paid to CD., iiy hand, the day and nacted that in all cases le or two justices of tlie : 5 v., chs. 25, 20, 27, justices, in his or iknv rrant to levy by distress chattels, the amount of .ult of the same being iders may he committed ction for the period and ,ove-mentioned statutes, littal for default of pay- 4S warrant. § 5. In all rtics who have failed in lawful for the justice or lie, in his or their discvo- levy by distress and sale n-son so failing to prose- ,ed by the justice or jus- :!onviction under the io the improvement of tkl at part of this provincel lects summary convictionsl [sty's justices of the peacel parts of statutes relating aummari^ eonlifctfoii* 779 to the duties of such justices in respect of such summary convictions and orders were consolidated, with such additions and alterations as may be deemed necessary, and that such duties should be clearly defined by positive enactment : be it therefore enacted, &c. Summona.—^ 1. That in all cases where an information shall be laid before one or more of Her Majesty's justices of the peace for any territorial division in Upper Canada, that any person has committed or is suspected to have committed any offence or act within the jurisdiction of such justice or justices of the peace, for which he is liable by law upon a summary conviction for the same before a justice or justices of the peace, to be imprisoned or fined or otherwise punished ; and also in all cases where a complaint sliall be made to any such justice or justices, upon which he or they have or shall have authority by law to make any order for the payment of money or otherwise, then in every such case it shall be law- ful for such justice or justices of the peace to issue his or their summons (A), directed to such person, stating shortly the matter of such information or complaint, and requiring jiim to appear at a certain time and place, before the same justice or justices, or before some other justice or justices for the same territorial division as shall then be there, to answer to the said information or complaint, and to be further dealt with according to law ; and every such summons shall be served by a constable or other peace officer, or other person to whom the same shall be delivered, upon the person to T^hom it is so directed, by delivering the same to the party personally, or by leaving the same with some person for him, at his last or most usual place of abode ; and the constable, peace officer, or person who shall serve the same in manner aforesaid, shall attend at the time and place, and before the justices in the said summons mentioned, to depose if neces- sary, to the service of the said summons : provided always, that nothing herein mentioned shall oblige any justice or justices of the peace to issue any such summons in any case Vhere the application for any order of justices is by law to le made ex parte : provided also, that no objection shall be taken or allowed to any information, complaint or summons, for any fiWegedfact (a) therein, in substance or in form, or for j any variance between such information, complaint or sum- mons, and the evidence adduced on the part of the informant or complainant as hereinafter mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to bejuich that the party so summoned {a) Qucete, "defect?" i| iVi. 780 Sumnfftri? <8^onlifctfon* f: and oppoaring has been thereby deceived or r.Jslcd, it shal be la>vful for such justice or justices, upon such terms as Iw or they shall think fit, to adjourn the hearing of the case t( some future day. Warrant. — § 2. That if the person so served with a sum inons as aforesaid shall not be and appear before the justici or justices at the time and place mentioned in such sunnnous and it shall bo made to appear to such justice or justices ],\ oath or affirmation, that such summons was so served wliai shall be deemed by such justice or justices to be a reasonablf time before the time therein appointed for appearing to tli( same, then it shall be lawful for such justice or justices ii he or they shall think fit, upon oath or affirmation beini made before him or them, substantiating the raattor oj such information or complaint to his or their satisfaction tc issue his or their warrant (B) to af^rehend the puvty so sum moned, and to bring him before the same justice or jus- tices, or before some other justice or justices of the peac( in and for the same territorial division, to answer to the said information or complaint, and to be further dealt with according to law; or upon such information beinn laid as aforesaid for any offence punishable on conviction" the justice or justices before whom such information shall have been laid may, if he or they shall think fit, upon oath or affirnmtion being made before him or them substan^ tiating the matter of such information to his or their satis- faction, instead of issuing sucli summons as aforesaid, issiu in the first instance his or their warrant (C) for apprehcndinj the person against whom sucli information shall have bed so laid, and bringing him before the same justice or justicea or before some other justice or justices of the peace in ani for the same territorial division, to answer to the said infoj mation, and to be further dealt with according to law ; or : where a summons shall be so issued as aforesaid, and upon tlJ day and at the place appointed in and by the said suuimoil for the appearance of the party so summoned, such par{ shall fail to appear accordingly in obedience to such summon| then and in every such case, if it be proved itpon oath i afiirmation to the justice or justices then present, that sin summons was duly served upon such party a reasonable tiii before the time so appointed for his appearance as afoiesal it shall be lawful for such justice or justices of the peace f proceed ex parte to the hearing of such information or coj plaint, and to adjudicate thereon, as fully and effectually! all intents and purposes as if sach party had personally i peared before him or them in dWedicnce to the said summoj [ or T. is^cd, it sliall on such terms as ho jaring of the case to served with a sum- ar before the justice led in such summons, ustice or justices, ly ■was so served Avliat ces to be a reasonaWe , for appearing to tlic justice or justices, it' or aflirmation being iiating the mattor of r their satisfaction, to lend the party so sum- ! same justice or jus- ir justices of the peace sion, to answer to the [ to be 'further Aealt uch information hemg inishable on conviction, horn such information icy shall think fit, upon re him or them substim- on to his or their satis- .mons as aforesaid, issue ant (C) for apprehending .rmation shall have ken same justice or justices ices of the peace in and answer to the said ink- according to law; ovil ,s aforesaid, and upon the und by the said summons [o summoned, such party edience to such summons, bo proved upon oath ot then present, that sacli t^ party a reasonable time! i appearance as atoresaul .riusticesof thepeaceto such information or com- ,8 fully and effectually to party had personally ap- /nee to the said summowJ Summarj? e>^iuUietCon. 781 Form of Warrant, and Baching. — S 3. That every such warrant to apprehend a defendant, that lie may answer to such information or complaint iis aforesaid, sliall be under the hand and seal, or hands and seals of the justice or Justices issuing the same, and may be directed to all or any of the constables or oilier peace officers of the territorial division within which the same is to be executed, or to such constable and all other constables within the territorial division within which the justice or justices issuinjj such warrant hath jurisdiction, or generally to all constables within such last mentioned territorial division ; and it shall state shortly the matter of the information or complaint on which it is founded, iind shall name or otherwise descvibe the person against whom it has been issued, and it shall order the constable or other peace officer to whom it is directed, to apprehend the said defendant, and to bring him before one or more justice or justices of the \)eace, as the cas^ may require, of the same territorial division, to answer to the said information or com- plaint, and to be further dealt with according to law ; and that it shall not be necessary to make such warrant returna- |)le at any particular time, but the same may remain in full force until it shall be executed ; and such warrant may be executed by apprehending the defendant at any place within the territorial division within which the justices issuing the same shall have jurisdiction, or, in case of fresh pursuit, at any place in the next adjoining territorial division, within seven miles of the border of such first mentioned territorial division without having sudi warrant backed as hereinafter men- tioned; and in all cases in which such warrant shall be directed to all. constables or peace officers within the terri- torial division within which the justice or justices issuing the same shall have jurisdiction, it shall be lawful for any constable or peace ollicer for any jdace within the limits of the jurisdiction for w hicli such justice or justices shall have acted when he or they granteil such warrant, to execute such warrant in like manner as if such warrant were directed especially to such constable by name, and notwithstanding that the place in which such warrant shall be executed, shall I not be within the place for which he shall be such constable or peace officer ; and if the person against whom aiij' such warrant has been i^isued be not found within the jurisdiction of the justice or justices by whom it was issued, or if he shall escape, go into, reside or be, or be supposed or suspected to Ibe in any place within this province, whether in Upper or [Lower Canada, out of the jurisdiction of the justice or justices lisfluing the warrant, any justice of the peace within whose 'i W%' I;' i' l '."'' H ■% ■ m tA mlfA 1 782 Summari? coniifction« jurisdiction such person shall be or be suspected to be a< aforesaid, upon proof alone upon oath of thfi hand-writinc of the justice or justices issuing the warrant, may mak( an endorsement upon it, signed with his name, authorisinr the execution of the warrant within his jurisdiction ; ant such endorsement shall be sufficient authority to the persor bringing the warrant, and to all other persons to whom ii was originally directed, and to all constables or other ptac( officers of the territorial division where the endorsement j; made, to execute the same in any place within the jurisdictior of the justice of the peace endorsing the same, and to carr\ the offender, when apprehended, before the justice or justices who first issued the Avarrant, or some other justice havino the same jurisdiction ; provided always, that no objection shall be taken or allowed to any such warrant to appre. hend a defendant, so issued upon any such information or complaint as aforesaid und(;r or by virtue of this act, for anv alleged defect therein in substance or in form, or for any between it and the evidence adduced on the part of the infor- mant or complainant as hereinafter mentioned ; but if any such variance shall appear to the justice or justices prcj^ont and acting at such hearing, to be such that the party so ap- prehended under such warrant has been thereby decoived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn t!ie hear- ing of tlie case to some future day, and in the meantime commit (D.) the said defendant, to the common gaol, any other prison, lock-up house, or place of security wit in the territorial division, or place within which the sail justice or justices may be acting, or to such other tody as the said justice or justices shall think fit, or discharge him upon his entering into a recognizance (E with or without surety or sureties, at the discretion such justice or justices, conditioned for his appearance at t time and place to which such hearing shall be so adjournet provided always, that in all cases where a defendant slia be discharged upon recognizance as {.foresaid, and shall n( afterwards appear at the time and place in such recognizanc mentioned, then the said justice, who shall have taken t said recognizance, or any justice or justices who may then there present, upon certifying (F.) upon the back of the sa recognizance the non-appearance of the defendant, may trii mit such recognizance to the clerk of the peace of the ten torial division within which such recognizance shall have be taken, to be proceeded upon in like manner as other reoo nizances, and such certificate shall be deemed sufficient ji>r») facie evidence of such non-appearance of the said defcnda cus tl [Ul Uon« I suspected to be as of thfi hand-writing ■warram, may mate As name, authorising is jurisdiction ; and Lthority to the person persons to whom it tables or other peace ! the endorsement is within the jurisdiction tie same, and to carry ! the justice or justices J other justice luving lys, that no objection ich warrant to appre- y such information or •tue of this act, for any or in form, or for any on the part of theinfor- mentioned ; but if any :ice or justices present ch that the party so ap- been thereby deceived 1 iustice ov justice?, upon fit, to adjourn the liear- and in the meantime to , the common gaol, or place of security witli- within which the said or to such other cus- ■i shall think fit, or to ,to a recogni7,aucc (E.), 8, at the discretion of ■or his appearance at tk r shall be so adjourned; where a defendant shall i ^foresaid, and shall not ,ace in such recognizance jho shall have taken the usticcswhomaythcnhe ipon the back of the said aic defendant, may trans- of the peace of the tern- ,gnizance shall havoheen, 5 manner as other rccog- ,e deemed 8ufiicient].n«! ,ce of the said defendant, 1 Summa^ti^ (sronHfttfon* 783 Description of Property. — § 4. That in any information or complaint or proceedings thereon, in which it shall be necessary to state the ownership of any property belonging to or in the possession of partners, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to state the property to belong to the per- son so named and another or others, as the case may be ; and whenever in any information or complaint, or the pro- ceedings thereon, it shall be necessary to mention, for any purpose whatsoever, any partners, joint partners, parceners or tenants in common, it shall be sufficient to describe them in the manner aforesaid ; and whenever in any such informa- tion or complaint, or the proceedings thereon, it shall be necessary to describe the ownership of any work or building made, maintained or repaired at the expense of any territo- rial division, or of any materials for the making, altering or repairing the same, they may bo therein described as the property of the inhabitants of such territorial division res- pectively. Aiders and Abettors. — § 5. That every person who shall aid, abet, counsel or procure the commission of any offence nhich is or hereafter shall be punishable on summary convic- tion, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or kfore or after his conviction, and shall be liable, on convic- tion, to the same forfeiture and punishment as such principal offender is or shall be by law liable, and may be proceeded against and convicted either in the territorial division or place where such principal offender may be convicted, or in that in which such offence of aiding, abetting, counselling or procuring may have been committed. Summoning Witncsaes. — § G. That if it shall be made to appear to any justice of the peace, by the oath or affn-mation of any credible person, that any person within the jurisdic- tion of such justice is likely to give material evidence on be- half 01 the prosecutor, or complainant or defendant, and will not voluntarily be and appear as a witness at the time and place appointed for the hearing of such information or com- plaint, such justice may, and is hereby required to issue his summons (G. 1.) to such person, under his Land and seal, requiring him to be and appear at a time and place mention- ed in such summons, before the said justice, or before such other justice or justice j of the peace for the same territorial [division as shall then be there, to testify what he shall know concerning the said ' iformation or complaint; and if any person bo summoned snail neglect or refuse to appear at the m m ! m %^:'t ': ] ii.':>% mm 'If (if IK iiSlB ?^ <;ii( jfi ■.■;»!■ ,f . ...J v mmmiM I: I. {..■■■Il J! ■ ". ;v r:i |M?' ( ,i1 ■' im: ii' fr vJ! «JV: >l itij ft-,' 'I 1. ^;^ minmm MiUi m u 784 Simnmuv^ €on\}ittion^ time and place appointed by the said summons, and no jusi excuse shall be offered for such neglect or refusal, then (after proof upon oath or affirmation of such summons having been served upon such person, cither personally or by leaving the same for him with some person at his last or most usual place of abode) it shall bo lawful for the justice or justices before whom such person should have appeared, to issue a warrant (G. 2.) under his or their hands and seals, to blind and have such person, at a time and place to be therein inen^ tioned, before the justice who issued the said summons, or before such other justice or justices of the peace for thn same territorial division as shall be then there, to testify as aforo- said, and which said warrant may, if necessary, be backed as hereinbefore is mentioned, in order to its being executed out of the jurisdiction of the justice who sliall have issued the same ; or if such justice shall be satisfied, by evidence upon oath or affirmation, that it is probable that such person will not attend to give evidence without being compelled so to do then nstead of issuing such sinnmons it shall be lawful for him to issue his warrant (G. 3.) in the first instance, and which, if necessary, may be backed as aforesaid; and if on the appearance of such person so summoned before the saiil last mentioned justice or justices, either in obedience to sucji summons or upon being brought before him or thoiu by vir- tue of the said warrant, such person shall refuse to bo oxiim- ined upon oath or affirmation concerning the premises, iJ shall refuse to take sucli oath or affirmation, or having takoni such oath or affirmation shall refuse to answer such quostions concerning the premises as shall then be put to him, withoiJ offering any' just excuse for such refusal, any justice of tlJ peace then present, and having jurisdiction, may, by war] rant (G. 4.) under his hand and seal, commit the person sJ refusing to the common gaol for the territorial division wherf such person refusing shall then be, there to remain and bl imprisoned for anytime not exceeding ten days, unless hi shall, in the meantime, consent to be examined and to answc concerning the premises. Complaint in Writ in r/ — § 7. That in all cases of complaiii upon which a justice or justices of the peace may make af order for the payment of money or otherwise, such coil plaint shall be in writing, and on oath, unless it shall enacted or provided to tlio contrary by some particular a| of parliament upon which such complaint shall be framed. Variance — § 8. That in all cases of informations for aJ offences or acts punishable upon summary conviction, aj variance between such information and the evidence addticl ion. nmons, and no just refusal, then (after nmons having been ly or by leaving the , last or most usual s justice or justices appeared, to issue a , and seals, to bring je to be therein mcn- thc said summons, ov ic peace for the same •e, to testify as aforc- cessary, be baded as ts being executed out shall have issued tlie Red, by evidence upon , that such person ^\ill incT compelled so to do, 9 \t shall be lawful for the iivst instance, and ic aforesaid; and if on nmoned before t\ie saij icr w obedience to smni fore him or thoin by vu-- sh'iU refuse to ho exam- crnin- the premises ov ination, or havmg takon to answer such fiuostioiis „ be put to bin., ^sxihrn ,fusal, any justice ottW risdiction, mny, by wav< [\ commit the vovsoy so t'evvitorial division ^vhcve , there to remam and k tlincr ten days, unless k examined and to answ' ntinallcascsofcoTuplak Ithe peace may make au oath unless it shall k Uy some particular act Llaint shall be tramed. Ifof informations for any Lmmary convictiou, «ny faml the evidence adduce4| S^ummnvvf ^on^ittion. 785 which sucli oifencc shall not in support thereof as to the time at or act shall be alleged to liave been committed, be deemed material if it be proved that such information ^vas in fact laid within the time limited by law for laying the game ; and any variance between the said information and the evidence adduced in support tliercof, as to the place in which the offence or act shall have been alleged to have been commit- ted, shall not be deemed material, provided the offence or act l.e proved to have been committed witliin tlie jurisdiction of the justice or justices by whom such information shall be heard and determined ; and if any such v.iriance, or any variance in any other respect between such information and the evidence adduced in support tliereof, shall appear to the justice or justices present and acting at the liearing, to be such that the party charged by such information has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day, and in the meantime to commit (i).) the said defendant to the com- mon gaol or other prison, lock-up house or place of security, or to such other custody as the said justice or justices shall think fit, or to discharge liim upon liis entering into a recog- nizance (E,) with or without surety or sureties, at the discre- tion of such justice or justices, conditioned for his appearance at the time and place to which such hearing shall be so adjourned : provided always, that in all cases where a defen- liint shall be discharged upon recognizance as aforesaid, and iliall not afterwards appear at the time and place in such iceoffuizance mentioned, then the said justice who shall have taken the said recognizance, or any other justice or justices who may then be there present, upon certifying (F.) upon the back of the said recognizance the non-appearance of the defendant, may transmit such recognizance to the clerk of t!ie peace of the territorial division within which such recog- nizance shall have been taken, to be proceeded upon in like inimncr as other recognizances, and such certificate shall be deemed sufficient primii facie evidence of such non-appear- ance of the said defendant. Complaint on Oath — § 9. That every such complaint upon vhich a justice or justices of the peace is, or are or shall bo jrised by law to make an order, and that every informa- t c- for any offence or act punishable upon summary convic- Itio. unless some particular act of parliament shall ether- ise nermit), shall respectively be made or laid on oath or iffirmation as to the truth thereof, and in all cases of infor- ations where the justice or justices receiving the same shall 99 W ' to;.I; '!i'";' 'i.!iil S' i iiil 1 mm :.;p V miui^i ■ lit;! ' ■ % i 'P '■%' i if: 1.1 786 ■ . ^4; ■\ \- I ! Vi" a^ummwcp ConUktfon. thereupon issue his or their warrant in the first instance to apprehend the defendant as aforesaid ; and in every case where the justice or justices shall issue his or their warrant in the first instance, the matter of such information shall be substantiated by the oath or affirmation of the informant or by some witness or witnesses on his behalf, before any sunh warrant shall be issued, and every complaint shall be for one matter of complaint only, and not for tAvo or more matters of complaint, and every such information shall be for one oiFence only, and not for two or more offences, and eveiv such complaint or information may be laid or made by the complainant or informant in person, or by his counsel or attorney, or other person authorised in that behalf. Limitation of Time — § 10. That in all cases where no time is already or shall hereafter be specially limited for making any such complaint or or laying any such information in the act or acts of parliament relating to such particular case, such complaint shall be made, and such information shall be laid within six calendar months from the time when the matter of such complaint or inform.ation respectively arose. Hearing — § 11. That every such complaint or information shall be heard, tried, determined or adjudged by one or tflo or more justice or justices of the peace, as shall be directed] by the act or acts of parliament upon which such complaint or information shall be framed, or such other act or acts o parliament as there may bo in that behalf; and if there no such direction in any such act of parliament, then such complaint or information may be heard, tried, determiner and adjudged by any one justice for the territorial division where the matter of such information or complaint shall hav arisen ; and the room or place in Avhicl; such justice or jus tices shall sit to hear and try any such complaint or inlor mation, shall be deemed an open and public court to whic the public generally may have access, so far as the same ca conveniently contain them ; and the party against whoi such complaint is made or information laid, shall be admitte to make his full answer and defence thereto and to have tl witnesses examined and cross-examined by counsel or attoi ney on his behalf ; and every complainant or informant any such case shall be at liberty to conduct such complai or information respectively, and to have the witnes* examined by counsel or attorney on his behalf. Non-appearance hy Defendant. — § 12. That if at the d and place appointed in and by the summons aforesaid hearing and determining such complaint or information, t ion* le firat instance, to and in every case ais or their warrant nformation shall be )f the informant, ov [ilf, before any m\\ iaint shall be for one two or more matters on shall be for one offences, and every laid or made by tlic jr by his counsel or that behalf. , all cases where no specially limited for any such information, ting to such particular and such information bs from the time when formation respectively omplaint or information adiudged by one or two , be, as shall be directed n which such complaint uch other act or acts of ichalf; and if there be t parliament, then sucli ^card, tried, determined the territorial division, I or complaint shall bavc tic'i. such justice or jus- mch complaint or intoi- [I public court to which IS so far as the siinie can he party against wbora on laid, «liall be admitted thereto and to have tbe ined by counsel or attor- lainant or informant m ) conduct such complaint to have the ^vitnesse5 his behalf. , {, 12. That if at the d&y /summons aforesaid o [plaint or information, tlie| Sbnmmuvp eontiittion. 787 defendant against whom the same ahall have been made or laid, shall not appear when called, the constable or other person who shall have served him with the summons in that behalf, shall then declare upon oath in what manner he gerved the said summons ; and if it appear to the satisfaction of the justice or justices that he duly served the said sum- mons, in that case such justice or justices may proceed to hear and determine the case in the absence of such defendant, or the said justice or justices, upon the non-appearance of such defendant as aforesaid, may, if he or they think fit, issue his or their warrant in manner hereinbefore directed, and shall adjourn the hearing of such complaint or informa- tion [VLiitW the said defendant shall be apprehended ; and when such defendant shall afterwards be apprehended under such warrant he shall be brought before the same justice or justices, or some other justice or justices of the peace for the same territorial division, who shall thereupon, either by his or their warrant (H.,) commit such defendant to the common uaol or other prison, lock-up house or place of security, or if lie or they think fit, verbally to the custody of the constable or other person who shall have apprehended him, or to such other safe custody as he or they shall deem fit, and order the said defendant to be brought up at a certain time and place before such justice or justices of the peace as shall then be there, of which said order the complainant or informant shall have due notice ; or if upon the day, and at the place so ap- pointed as aforesaid, such defendant shall appear voluntarily in obedience to the summons in that behalf served upon him, or shall he brought before the said justice or justices by virtue of any warrant, then, if the said complainant or in- formant having had due notice as aforesaid, do not appear by himself, his counsel or attorney, the said justice or justices shall dismiss such complaint or iufor- niantion, unless for some reason he or they shall think proper to adjourn the hearing of the same until some other Jay, upon such terms as he or they shall think fit, in which case such justice or justices may commit (D.) the defendant in the meantime to the common gaol or other prison, lock-up house or place of security, or to such other custody as such justice or justices shall think fit, or may discharge him upon liis entering into a recognizance (E.) with or without surety or sureties, at the discretion of such justice or justices, con- ditioned for his appearance at the time and place to which !uch hearing shall be so adjourned ; and if such defendant shall not afterwards appear at the time and place mentioned in such recognizance, tliert the said justice who shall have ^¥1 1 ■ '^Jiillii 1 111' F HI 1 ili^ if 11 11 '' 1! ■,' ' 1 '1 ' if Li A. ''•\v\ \ 'li |i li up'Im 1 1 i 1 1 I. { '!■■■ 1' ■ 'I' I /' 'h 1'!' i.'»' i( 1 'f ii:.;« '^m"ma fiiriii^^' ill !'■■ i. •■■ mm ; 'hit I J .v'Jfl Iti'^- ■' I 788 Sbummuv!i eonnfetfon. taken the said recognizance, or any justices who may then be there present, upon certifying {¥.) on the back of tlie recognizance the non-appearance of the defendant, may trans- mit such recognizance to the clerk of the peace for the territorial division in which such recognizanre shall have been taken, to be proceded upon in like manner as other reeof. nizances, and such certificate shall be deemed sufficient wrwtrf faeie evidence of such non-appearance of the said defendant • but if both parties appear, cither personally or by their res- pective counsel or attorneys, before the justice or justices who are to hear and determine such complaint or information then the said justice or justices shall proceed to hear and determine the same. Proceedings. — § 13. That when such defendant shall be present at such hearing, the substance of the information or complaint shall bo stated to him, and he shall be asked if he have any cause to shew why he should not be convicted or ■yvli^T rder should not be made against him, as the case r\\\r . 'nd if he thereupon admit the truth of the informa- tioi I. .' ..plaint, and shcAV no cause or no sufficient cause why he should not be convicted, or why an order should not be ;nt. Jo against him, as the case may be, then the justice or justices ^ escu. at the said hearing, shall convict him, or make an order agiiinst him accordingly ; but if ho do not admit the truth of such information or complaint as aforesaid. thou the said justice or justices shall proceed to liear tlio prosecutor or complainant and such witnesses as he niav examine, and such other evidence as he mayadduoe in support of his information or complaint respectively, and also to hcarf the defendant and such witnesses as ho may examine, and such I other evidence as he may adduce in his defence, and also tol hear such witnesses as tiie prosecutor or complainant niavl examine in reply, if such defendant shall have examined an'v[ witnesses or given any evidence other than to his the dei'enJ dant's general character ; but the prosecutor or com])lainani| shall not be entitled to make any observations in reply upoii the evidence given by the defendant, nor shall the defcndanj be entitled to make any observations in reply upon tliJ evidence given by the prosecutor or complainant in reply al aforesaid ; and the said justice or justices, having heard wlial each party shall have to say as aforesaid, and the witne.^scl and evidence so adduced, shall consider the whole mattcil and determine the same, and shall convict and make an ordcl against the defendant ; a minute or memorandum thereof shaf then bo made, for which no fee shall be paid, and tho coij viction (I 1, •5) or order (K. 1, JJ) shall afterwards • I ion* ,ces wUo may then I the back of the fenclantjinay trans- the peace for the iXiCQ shall have heen aev as other recog- med sufficient 2jmirt the said defendant •. ^ally ov by their ycs- e justice or justices plaint ov information, iroceed to hear and .1 defendant shall be of the information ov ,c shall he asked if he not he convicted, or linst him, as the case e truth of the informa- or no sufficient cause [xy an order should m[ r be, then the justice ov r, shall convict him, ov I'tly ; hut if he do not complaint as aforesaid. II proceed to hear tlie witnefeses as he may e may adduce in support itively, and also to hear may examine, and sucli lais 'defence, and also lo or or complainant may ihall have examined any n- than to his the det'en- fosccutor or complaimmt scrvations in reply upon nor shtill the defendant .ns in reply upon tk ^ complainant in reply as ,ticcs, having heard Avk ■csaid, and the Nvitncsscj tsidev the whole matter, ,nvict and make an oiHler .emorandum thereof shall M bo paid, and the coii-i :»,) shall aftorwaras l.' ^utnmavii eonufctfon* •781 Jrawn up by the said justice or justices in proper form, under his or their hand and seal, or hands and seals, and ho or they shall cause the same to be lodged with jlie clerk of the peace, to be by him filed among the records of the general quarter sessions of the peace; Qfif the said justice or justices shall dismiss such infor- mation or complaint, it shall be lawful for such justice or justices, when required so to do, to make an order of ilismissal of the same (L), and shall give the defendant on that behalf a certificate thereof (M), which said certificate afterwards upon being produced, without further proof, shall li a bar to any subsequent information or complaint for the jame matters respectively, against the same party : provided ;il\vays, that if the information or complaint in any such case jhall negative any exemption, exception, proviso or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same. Evidence. — § 14. That every prosecutor of any such in- formation, not having any pecuniary interest in the result of the same, and every complainant in any such complaint as ;;forcsaid, whatever his interest may be in the result of the ianic, shall be a competent witness to support such informa- tion or complaint respectively, and every such witness at anv such hearing as aforesaid, shall be examined upon oath or affirmation, and the justice or justices before whom any juch witness shall appear for the purpose of being so oxarained, shall have full power and authority to administer ;o every such witness the usual oath or affirmation. Adjournment. — § lo. That before or during such hearing if any such information or complaint, it shall be lawful for liny one justice, or for the justices present, in their discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or of their respective attor- neys or agents then present, and in the meantime the said iustice or justices may suffer the defendant to go at large, or may commit (D) him to the common gaol or other prison, lock-up house or other place of security within the territorial division for which such justice or justices shall then be acting, ov to such other safe custody as the said justice or justices M\ think fit, or may discharge such defendant upon his recognizance (E), with or without sureties, at the discretion |of such justice or justices, conditioned for hir^ appearance at ill 1^ f I U ui •>'; 1] -■lyri ' li 1 i ''' '1 ' 1 ■§ :, , i. t» it ■* ' B i''*' i'''' H 1 :i'',.: 'i:\''il ?f. I'v Ir m \fi m i/.^ii{ iUm m WF ill n\ :J' .!'' •;■:■' !l,M^ mm ■ ij.!': : 'i Ji ' , - '■' ■;■■ i MH[W!:M:'i:iii:- m i7 1; !-'f l-i iM'I'ili 'ill 790 Summttrii eotiUfttfoif. the time and place to which such hearing or further hearing shall be adjoui'ned ; and if, at the time or place to which such hearing or fui'ther hearing shall be so adjourned, either or both of the parties shall not appear personally or by his or theii' counsel or attorneys respectively, before the said justice or justices, or such other justice or justices as shall then be there, it shall bo lawful for the justice or justices then there present to proceed to such hearing or further hearing as if such party or parties were present ; or if the prosecutor or complainant do not appear, the said justice or justices may dismiss the said information or complaint with or without costs as to such justices shall seem fit : provided always that in all cases when a defendant shall be discharged upon his recognizance as aforesaid, and shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice or justices who shall have taken the said recognizance, or any other justice or justices who may then be there present, upon certifying (F) on the back of the recoffni- zance, the non-appearance of such accused party, may transmit such recognizance to the clerk of the peace for the territorial division in which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances and such certificate shall be deemed sufficient prima fndl evidence of such non-appearance of the said defendant. Form of Conviction. — § 10. That in all cases of conviction where no particular form of such conviction is or shall be given by the statute creating the offence or regulating the prosecution for the same, and in all cases of conviction upon statutes hitherto passed, whether any particular form of conJ viction have been therein given or not, it shall be lawful foJ the justice or justices who shall convict, to draw up his ij their conviction, on parchment or on paper, in such one of the forms of conviction (1 1, 8,) in the schedule of this acj contained, as shall be applicable to such case, or to the likJ eflfect ; and when an order shall be made, and no particulaj form of order is or shall be given by the statute givinj authority to make such order, and in all cases of orders to b] made under the authority of any statutes hitherto passeif whether any particular form of order shall therein be givcl or not, it shall be lawful for the justice or justices by whof such order is to be made, to draw up the same in such on of the forms of orders (K 1, 3) in the schedule of this aj contained, as may be applicable to such case, or to the lilf eflfect ; and in all cases when Ly an act of parliament authorip is given to commit a person to prison, or to levy any ; upon his goods or chattels by distress, for not obeying ad '■^' .jwm or further hearing place to which such nljourned, either ov sonally or by his ov 3fore the said justice ices as shall then he ,r justices then there 'urther hearing as if if the prosecutor ov istice or justices may laint with or without fit: provided always, 11 be discharged upon not afterwards appear Lch recognizance, then have taken the said stices who may then be he back of the recogni- sed party, may transmit leace for the territorial iball have been taken. as other recognizances, 1 sufficient prima j\m ^e said defendant, n all cases of conviction anviction is or shall W fence or regulating the lases of conviction upon t particular form of cou- ot, it shall be lawful for Lvict, to draw up his or m paper, in such one ot [the schedule of this act such case, or to the like made, and no particular by the statute giving all cases of orders to be statutes hitherto passed, er shall therein be given ';tice or justices by whoui IP the sameiu such one 1 the schedule of this act isuch case, or to the like ct of parliament authority ison, or to levy any sum ess, for not obeying any | Sttuiitiavii eonbfctfon. 791 orJer of a justice or justices, the defendant shall be served vith a copy of the minute of such order before any warrant of commitment or of distress shall issue in that behalf, and juch order or minute shall not form any part of such warrant of commitment or of distress. Costs. — § 17. That in all cases of summary conviction or of orders made by a justice or justices of the peace, it shall be lawful for the justice or justices making the same, in his or their discretion, to award and order in and by such conviction or order that the defendant shall pay to the prosecutor or complainant respectively such costs as to the said justice or justices shall seem reasonable in that behalf* and not inconsistent with the fees established by law to be taken on proceedings had by and before justices of the peace under the act passed in the sef^sion held in the four- teenth and fifteenth years of her Majesty's reign, and inti- tuled, An Act to establish an timform rate of Fees to be nceived by justices of the peace in Upper Canada, and to repeal the act of Upper Canada passed in the fourth year of '\ereign of King William the Fourth, chapter seventeen, or with the provisions of any other act or law in force in Upper Canada regulating fees or costs in proceedings before justices of the peace; and in cases where such justice or justices, instead of convicting or making an order as aforesaid, shall dismiss the information or complaint, it shall be lawful for iiim or them in his or their discretion in and by his or their order of dismissal, to award and order that the prosecutor or complainant, respectively, shall pay to the defendant such costs as to the said justice or justices shall seem reasonable und according to law as aforesaid ; and the sums so allowed for costs shall in all cases be specified in such conviction or order, or order of dismissal as aforesaid, and the same shall be recoverable in the same manner and under the same war- rants as any penalty or sum of money adjudged to be paid in and by such conviction or order is to be recoverable, and in cases where there is no such penalty or sums of money to be 1 thercbv recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and I in default of such distress, by imprisonment, with or without hard labor, for any time not exceeding one calendar month, {unless such costs shall be sooner paid. Warrant of Distress. — § 18. That where a conviction [adjudges a pecuniary penalty or compensation to be paid, or Iwhere an order requires the payment of a sum of money, and Iby the statute authorizing such conviction or order, such alty, compensation, or sum of money is to be levied upon W ' ■'. A mm >t "14' %mi i. I'I'I 'i,=a "IP i I ilii mm " P: M'll^rii'f'jr:- H Wh: h 102 &umm^vti (Srontiictfon. the goods and chattels of the defendant, by distress and sal thoieof, and also in cases where, by the statute in that belialf no mode of raising or levying such pendty, compensation or sum of money, or of enforcing the payment of the same U stated or provided, it sliall be lawful for the justice or a'nv one of the justices making such conviction or order, or for any justice of the peace for tlie same territorial division to issue his warrant of distress (N 1, 2) for the purpose of levy. ing the same, which said Avarrant of distress shall be in writing, under the hand and seal of the justice makino' the same ; and if, after delivery of such warrant of distress to the constable or constables to whom the same have been directed to be executed, sufficient distress shall not be founj within the limits of the jurisdiction of the justice granting such warrant, then upon proof alone being made upon oath of the hand-writing of the justice granting sucii warrant before any justice of any teritorial division, such justice ol such territorial division shall thereupon make an endorse- ment (N. 3) on such warrant, signed with his hand, author!. sing the execution of such warrant within the limits of his jurisdiction, by virtue of which said warrant and endorse- ment the penalty or sum aforesaid and costs, or so much thereof as may not have been before levied or paid, shall ami may be levied by the person bringing such warrant, or bv the person or persons to whom such warrant was oriirlnally directed, or by any constable or other peace officer of siicii last mentioned territorial division, by distress and sale oil the goods and chattels of the defendant in such other terri torial division : provided always, that whenever it shall aiipea to any justice of the peace to Avhom application shall !> made for any such warrant of distress as aforesaid, that tli issuing thereof would be ruinous to the defendant and id family, or whenever it shall appear to the said justice, bv tli confession of the defendant or otherwise, that he bath n goods and chattels whereof to levy such distress, then and every such case it shall be lawful for such justice, if he sha deem it fit, instead of issuing such warrant of distress, commit such person to the common gaol, or lock-up hoiiJ within the territorial division within which such justice (| justices shall then be acting, there to be imprisoned with or without hard labour, for such time and in such manner by law such defendant might bo so committed, in case sin warrant of distress had issued and no goods or chattels hi been found whereon to levy such penalty or sum and co aforesaid. Liberation of Defendant — § 19. That in all cases wheri tiotu by distress and yalo .atutein tliat behalf, ty, compensation ov lent of tiio same, is )r the justice ov any tion or order, ov for jrritorial division, to ■ the purpose of levy- distress shall be in 3 justice making tlie arrant of distress to the same have been CSS shall not be found f the justice grantiiv,' being made upon oatli anting such >vavvant, ivision, such justice of ,on make an endorse- Yith his hand, authori- ithin the liniits of Ids warrant and endorse- and costs, or so mucli levied or paid, shall ami rr such warrant, or liy 'warrant was orifiinally er peace oflicer of sucii )y distress and sale ol' "ant in such other tcni- whenever it shall ajipoav pm application sluiU Iji ks as aforesaid, that \h o the defendant and liii ,0 the said justice, by tW ■vwise, that he hath iiu such distress, then and ill r such justice, if he shall warrant of distress, to L gaol, or lock-up house \ which such justice or to be imprisoned ^vlth ov ^e and in such manner ii> jcoimnittcd, incasesiicii ino goods or chattels \m penalty or smu and co^ts iThat in all cases where aj Sumtnati^ eoniifctfon* 793 iustice of the peace shall issue any such warrant of distress, 'it shall be lawful for him to suffer the defendant to go at larce, or verbally, or by a written warrant in that behalf, to order the defendant to be kept and detained in safe custody, until return shall be made to such warrant of distress, unless such defendant shall give sufficient security, by recognizance or otherwise, to the satisfaction of such justice, for his appear- ance before him at the time and place appointed for the return of such warrant of distress, or before such other iustice or justices for the same territorial division as may then be there : provi('ed always, that in all cases where a defendant shall give . ecurity by recognizance as aforesaid, and shall not afterwards appear at the time and place in (lie said recognizance mentioned, then the said justice who shall have taken the said recognizance, or any justice „r justices wh may then be there prcfcc^t, upon certifying (F.) on the hack of the recognizance the nv.n-appearance of the defendant, may transmit such recognizance to the clerk of the peace of the territorial division witldn which the offence .hall be laid to have been committed, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primn facie e\idcncc of such non-appear- ;inoe of the said defendant. Commitment in default of distreas. — § 20. That if at the lime and place appointed for the return of any such warrant , if distress, the constable who shall have had execution of the ?amc, shall return (N. 4) that he could find no goods or chat- uls, or no sufficient goo , ,1 ■ 1,', If h,m, u ■ V Vl: ili :t' i..? f 704 Sbitmmarj^ conUfction* and charges of the comtnitment and conveying of the defen dant to prison, if such justice shall think fit so to order (tin amount thereof heing ascertained and mentioned in sucl commitment) shall be sooner paid. Imprisonment. — § 21. That where a justice or justices o the peace shall, upon such information or complaint as afore said adjudge the defendant to be imprisoned, and sucl defendant t-hall then be in prison undergoing imprisonnieni upon conviction for any other offence, the warrant of convic tion for such subsequent offence shall, in every case, be forth. with delivered to the gaoler or other oflScer to whom the mmi shall be directed, and it shall be lawful for the justice or jug. tices issuing the same, if ho or they shall think fit, to aivard an order therein and thereby, that the imprisonment forsuclj subsequent offence shall commence at the expiration of thf imprisonment to which such defendant shall have boon pre- viously adjudged or sentenced. Dismissal of Complaint. — § 22. That when any information or complaint shall be dismissed with costs as aforesaid, the sum which shall be awarded for costs in the order for disniissal may be levied by distress (Q 1) on the goods and chattels of the prosecutor or complainant in the manner aforesaid; and in default of distress or payment, such prosecutor or com- plainant may be committed (Q 2) to the common gaol or other prison or lock-up house in manner aforesaid, for any tim^ not exceeding one calendar month, unless such sum, and costs and chargesof the distress, and of the commitniont conveying of such prosecutor or complainant to prison (the amount thereof being ascertained and stated in such conimitj raent), shall be sooner paid. Proceedings after Appeal. — § 23. That ^fter an appeal against any such conviction or order as aforesaid shall bedel cided, if the same shall be decided in favour of the respondent) the justice or justices who made such conviction or order, or anf other justice of the peace for the same territorial division, niaj issue such warrant of distress or committment as aforesiiij for execution of the same, as if no such appeal had bee| brought, and if upon any such appeal the court of general quarter sessions shall order either party to pay costs, sucl order shall direct such costs to be paid to the clerk of th peace of such court, to be by him paid over to the pard entitled to the same, and shall state within what time suq costs shall be paid ; and if the same shall not be paid with| the time so limited, and the party ordered to pay the san shall not be bound by any recognizance conditioned to pa such costs, such clerk of the peace on application ot the par] W '■Wf\\,li\} tfon* reying of the defon- ^ fit 80 to order (the mentioned in sucb justice or juatices of )r compiaint as afore- nprisoned, and such r«Toing impriaonment he warrant of convic- n every case, be fortli- iccr to whom the sam( [ for the justice or jus- iail think fit, to award imprisonment for sucb the expiration of tlic \t sliail liave been pre- it wiien any information at s as aforesaid, the sum the order for disiuissal. le goods and chattels of \nnner aforesaid; and in ich prosecutor or com- fie common gaol or other aforesaid, for any timf unless such sv\m, and of the comniitmcnt ..... nplainant to prison (tW il stated in such commit- That |ifter an appeal us aforesaid shall be de- •avour of the respondent. .onvictionorordor,nran\ c territorial division, may "ommittmcnt as aforesaid , such appeal had been al the court of general or party to pay costs, sucli paid to the clerk of the paid over to the party te within what tune such s shall not be paid vithm Ordered to pay the same ;ance conditioned to pay ,n application ot the party Sttmmati? ConbfctCon* 795 entitled to such costs, or of any person on his behalf, and on payment of a fee of one shilling, shall grant to the party so Lplying a certificate (11) that such costs have not been paid, and upon production of such certificate to any justice or jus- tices of the peace for the same territorial division, it shall be lawful for him or them to enforce the payment of such costs by warrant of distress (S 1) in manner aforesaid, and in default of distress he or they may commit (S 2) the party against whom such warrant shall have issued, in manrier hereinbefore mentioned, for any time not exceeding; two calendar months, unless the amount of such costs and all costs and charges of the distress, and also the costs of the commit- ment and conveying of the said party to prison, if such jus- tice or justices shall think fit so to order, (the amount thereof being ascertained and stated in such coninitmenf,) shall be sooner paid. Payment of Penalty. — § 24. That in all cases where a war- rant of distress shall issue as aforesaid against any person, and such person shall pay or tender to the constable having the execution of the same the sum or sums in such warrant mentioned, together with the amount of the expenses of such distress up to the time of such payment or tender, such con- stable shall cease to execute tlie same ; and in all ases in which any person shall bo imprisoned as aforesaid for joii-paynient of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he shall be so imprisoned, the sum in the warrant of commitment mentioned, together with the amount of the costs, charges and expenses (if any) therein also mentioned, and the said keeper shall receive *' me, and shall thereupon discharge such person if he ' custody for no other matter. Information^ jfc, before one Justice. — § 25. Tliat in all cases of summary proceedings before a justice or justices of the peace out of sessions, upon any information or complaint as aforesaid, it shall be lawful for one justice to receive such information or complaint, and to grant a summons or warrant thereon, and to issue his summons or warrant to compel the attendance of any witnesses, and to do all other acts and matters which may be necessary, preliminary to the hearing, even in cases where by the statute in that behalf such infor- mation and complaint must be heard and determined by two or more justices, and after the case shall have been so heard and determined, one justice may issue all warrants of distress or commitment thereon ; and it shall not be necessary that tlie justice who so acts before or after such hearing, shall bo the justice or one of the justices by whom the said case shall 'I ft:! m !! Wml " '.ft I I ! fi I M F Wih--i?f ^■■ !.'■ «?.ll"l 4 1 T:i...,m:.il\ lyj : i; 1." ". Ml ■■' ■ Mfmm l!i'l M^ ; i:' '"I I K| •11 KiUS AKtff^' i'Liln tISifll m 796 Sttmmafrj^ dtoni^Mion. be heard and determined : provided always, that in all casof ■where by statute it is or shall be required that any such in formation or complaint shall be heard and determined b\ two or more justices, or that a conviction or order shall bt made by two or more justices, such justices may be prcseni and acting together during the whole of the hearin'^ ami determination of the case. Appeal. — § 26. And whereas doubts may exist whcthei under the provisions of the act passed in the session of par. liament held in the thirteenth and fourteenth years of hei Majesty's reign, chaptered fifty-four, and intituled, An Act to extend the rights of Appeals in certain cases in Vnm Canada, appeals will lie from conviction and decisions under by-laws of municipal councils : be it therefore enacted, that in all cases of complaints against any person for committin'^ any offence against any by-law of any municipal corporation in Upper Canada, all decisions, convictions and orders niatlo by any justice of the peace, or by any person by la^y an. thorised to act in that capacity, shall be subject to an appeal in the manner and subject to the provisions prescribed in tlio above recited act. Forms. — § 27. That the several forms in the schedule to this act contained, or forms to the like effect, shall be doemcii good, valid and suflScient in law. , Police Magistrate. — § '28. That any one Inspector anil superintendent of police, police magistrate or stipendia magistrate, appointed or to be appointed for any citv borough, town, territorial division or place, and slitting at police court or other place appointed in that behalf, hIi have full power to do alone wliatever is authorised hv th act to be done by two or more justices of the peace ; and tli the several forms hereinafter mentioned may be varied sofa as it may be necessary to render them applicable to the polic courts aforesaid, or to the court or other place of sitting such stipendiary magistrate. Police Court. — § 2D. That any inspector and auporintendei of police, police magistrate or stipendiary magistrate as afor said at any police court or other place appointed in that b half, shall have such and like powers and authority to pi serve order in the said court during the holding thereof, ii by the like ways and means as now by law arc or may exercised and used in like cases and for the like purposes any courts of law in this province, or by the judges then respectively, during the sittings thereof. Powers. — § 30. That the said inspectors and snporintJ dents of police, police magistrates or stipendiary magistral I'V Ul Hon. tyg, that in all cases ed that any such in- and determined by m or order shalUo ices may be present s of the hearing ami ,8 may exist whcthcv in the session of par- irteenth years of her ,nd intituled, An Act ertain cases in Upper an and decisions under ;herefore enacted, that person for committin;^ municipal corporation Btions and orders mado any person by la^v au- be subject to an appeal irisions prescribed in tlio )rms in the schedule to e effect, shall be deemcl anv one inspector ami -ifiristrate or stipendiary .pointed for any city, place, and sitting at a ;d in that behalf, shall >r is authorised by tli's ^8 of the peace ; and that ncd may be varied so fav ra applicable to tbc poke 'ither place of i^itting ot sector and superintended [diary magistrate as atove- lace appointed in that he- Us and authority to pre- I the holding thereof, anl L by law arc or may bo I II for the like purposes l)v for by the judges thcrcol Icrcof. , . I ispcctors and supcvinten- )r stipendiary magistrate'. Sttttimatfi eonUfttfon* 797 in all cases where any resistance shall be offered to the execution of any summons, warrant of execution or other pro- gggs issued by them, shall be hereby empowered to enforce the du6 execution of the same by the means provided by the laws of Upper Canada for enforcing the execution of the process of other courts in like cases. Acts Repealed. — § 31. That from and after the day on which this act shall commence and take effect, all other acts or parts of acts contrary to or inconsistent with the provisions of tliis act, shall be and the same arc hereby repealed. Interpretation. — § 32. That the word "county," where- cvcr it occurs in this act, shall include any union of counties for judicial purposes, and the words "territorial division" shall include any union of two or more territorial divisions. Act to apply to U. C only. — § 33. That this act shall apply only to Upper Canada, except in so far as any pro- vision thereof is expressly extended to Lower Canada, or to liny act to be done there. Meaning of the word Prison. — § 34. That whenever the word ''prison " occurs in this act, it shall be held to mean any place where parties charged with offences against the law, arc usually kept and detained in custody. Cimmeneement of Act. — § 35. That this act shall com- mence and have force and effect upon, from and after the first day of July one thousand eight hundred and fifty-three, and not before. ScHEDIILKS. Siimmonn to the defendant on an infunnnaon ur complaint. (A.) Province of Canada : (t'duiiti/ or unitt'd coitntie)', or) To A. H. of (lahoiirrr) : mthvamt may br) of j Whereas information lialh tiiis ilav been laid {or com plaint hath (his day liccn made) before the uiKlLM'signeJ,(y;i'') of her Majesty's justices of ihe peace in ami for the said {county or uiiitnl counties, citj/, tuicii, ilV., as the om mm/ be) of , for that you {hen- state short/// the matter •if till' information or complaint): theSe are tlierefore to command iou ill iier Majesty's name, to be and appear »-n at i o'clock in the forenoon, at , before me or such justices of ihe peace for the said {I'ountu/ or united e^nntics, as the case may /») as rnuy then be there, to answer to the said information (or [ivmplnint), and to be furllun' dealt with according to law. Given under (my) hand and seal, tliis day of in the [year of our Lord , at in the (cvnnti/, or as (he case \mi/be) aforesaid. J. S. [L.8.J ^;*?il 798 Summarj^ eontfctlotf. (B.) Warrant wkcn the Summons i$ Disobeyed, Province of Canada : (^County or united counties, or) To all or any of the constables as the case may 6r) of ) or other peace officers in the (county or united counties, or as the case may be) of Whereas on last past, information was laid (or coijj. plaint icas madfi) he(oTQ ' , (one) oi her Majesty's justices of the peace in and for the said (county or united conntle.,.! or as the case may te) of , for that A. B. (etc., as in tltr su7nmons) : and whereas (I) the said justice of the peace then issued (my) summons unto the said A. B. . ommandinir him in her Majesty's name, to be and appear on , at ° o'clock in the forenoon, at , before [me) or such justices of the peace as might then he there, to answer unto the said information (or complaint) and to be further dealt with accord- ing to law ; and whereas the said A. B. hath neglected to be and appear at the time and place appointed in and by the said summons, although it hath now been proved to me upon oath that the said summons hath been duly served upon the said A. B.' these are therefore to command you, in her Majesty's name, forth- with to aj)prehend the said A. B. '• to bring him beforu (me) or some one or more of her Majesty's justices of the peace in and for the said (county or united counties, or as the casi' )«,„, ^') to answer to the said information (or comjifaiuf), ami U)\y, further dealt with according to law. Given under my hand and seal, this day of ,if; the year of our Lord at , in the (county, or us tlh^ case may be) aforesaid. J. S. [L.S.l (C.) Warrant in the first instance. Province of Canada : (County or united counties, or > To all or any of the constable as the case may be) of ^ or other peace officers in tl said {county or united counties, or as the casr may be) of Whereas information hath this day been laid before tl undersigned, (one) of her Majesty's justices of the peace i and tor the said {^county or united counties, as the case may hi of , for tliat A. B. (here state shortly the matter of injl niation) ; and oath being now made before (me) substantialin the matter of such information : these are therefore to coinniaiK you, in her Majesty's name, forthwith to apprehend the sai( A. B., and to bring him before (tAe) or some one or more of li Majesty's justices of the peace in and for the said (cotoifi/o united counties, or as the case may be,) to answer to the sui infortnatiui), and to be further dealt with according to law. n tfoti. Disobeyed. any of the constables r peace officers in ihe riy be) of lon was laid (or com- her Majesty's justices >u or nnik'd count icii, or A. B. (tfrc, as in till' justice of the peace aid A. B. .ommanJing ppear on , at •e (me) or such justicex I answer unto the said nher dealt with accord- B. hath neglected to be nted in and by the said iToved to me upon oath •ved upon the said A. B.; cr Majt'sty'snamejwih- Lo bring him before (m.) justices of the peace in hNV.s, or (IK the. cmr »i.i// (or cninjilfunt), ixnCi \()\k day of ,in in the {(-oanti/, or as tk J.S. [L.S.] Utitnc^' I or any of the constables Llher peace officers in the i CIS)' in/ br) of Ly been' laid before ibo liujstices of the pcaoo in Itvtl'f, »■•< '/"' '^<"''' '""^ '" ' Ihortlij the moUer of injm- Lforc (mr) substantittlin': [are therefore to command Ai to apprehend the said Ir some one or more of kr Id for the said (coiniO/or 1) to answer to the said [iih according to law. Sumitiati^ eonbfctfon* 799 Given under my hand and seal, this in the year of our Lord , at (lie case may bt) aforesaid. (D.) day of , , in the (county, or as J. S. [l. s.] Warrant of Committal for Safe Custody during an Adjournment of the Hearing. Province of Canada : (County or united counties, or ) To all and any of the constables as the case may be) of ) or peace officers in the (county or united counties, or as the case viay bi) of , and to the keeper of the (common gaol or lock-vp-house) at Whereas on last past, information was laid (or complaint made) before , (one) of her Majesty's justices of the peace ii, and for the said (county or united counties, or as the case miif be) of , for that (tj-c., us in the summons) ; and whereas the hearing the same is adjourned to the day of (instant), at o'clock in the (foic) noon, at , and it is necessary that the said A. B. should in the meantime be kepi in sate custody : these are therefore to command you, nr any one of the said constables or peace officers, in her Majesty's name, forthwith to convey the said A. B. to the (common gaol or lock up house,) at , and there deliver him into the custody of the keeper thereof, together with this nrecept: and I hereby require you, the said keeper, to receive ihe said A. B. into your custody in the said (co?nmo}i gaol or lock-vp house) and there safely keep him until the day of , (instant) when you are hereby required to convey and have him, the said A. B., at the time ana place to which the siiM hearing is so adjourned as aforesaid, before such justices of the peace for Uie said (county or united counties, as the ca^c moif bf) as m&y i\ycn be tliere, to answer further to the said infniniation (or complaint,) and to be further dealt with accord- ins; to law. Given under my hand and seal, this day of in the year of our Lord , at , in the (county, or as the case may 'my be) aforesaid. J. S. [l. s.] (E.). Ricnjnizancefor the Appearance of the Defendant irhrn the case is Adjourned, or not at once Proceeded loith. Province ok Canada : otiy OX united cmmties, or \ Be it remembered, that on the ease may be) of | , A. B. of , (labourer), \u M. of , (grocer), ana O. P. of , (yeoman,) per- sonally came and appeared before the undo aigned, (one) of her Majesty's jusfices of the peace in and for the said (county as and 800 Summarn , and unless you itppear d into by you, A. H., am' will forthwith h le lovR'i! ,0 thousand eight hundred I.S. [I..S.] jIU loncd on the Dffnuhnl'> B. hath not appeared nl tlu' Ml mentioned, but iheren. eof the within written re- '■ J. S.[i..8.] , in the said {county or united counties. 3bwmmti^ eottufttfotf. soi (G. 1.) Summons to a Witness. Province of Canada : (County or united counties, as ) To E. F. of the case may he,) of Of as tic case may he) of Whereas information was laid j(or complaint was made) before . ipne) of her Majesty's justices of the peace in and for the said {county or united counties, or as the case may he) pf , for that («fec., as in the summons,) and it hath been madfe to appear to me upon {oath) that you are likely to give material eviderice on behalf of the (prosecutor or complainant, or defendant) in this behalf; these are therefore to require you to be and appear on , at o'clock in the {fore) noon, at before me or such justices of the peace for the said (mnty or united counties, as the case may be) as may then be there, to testify \yhat you shall know concerning the matter of the said information {or complaint.) Given under my hand and seal, this day of in the year of our Lord , at in the {county, or as the case may It) aforesaid. J. S. [l. s.] (G. 2.) }Varrant where a Witness has not obeyed a Summons. Province of Canada : (County or united counties, as\ To all or any of the constables the case may be) of j and other peace officers in ihe said {county or united counties, or as the case may be) of : Whereas information was laid {or complaint was made) be- fore {one) of her Majesty's justices of the peace, in and for the said {county or united counties, or as the case may be,) of for that {^; as in the summons,) and it having been made to appear to {me) upon oath, that E. F., of , in the said {county or united cou?ities, or as the case may be) {labourer) was likely to give material evidence on behalf of the (prosecu- tor,) (I) did duly issue {my) summons to the said E. F., re- i|uiring him to be and appear on , at o'clock in the [fore)) noon of the same day, at, before me or such justice or justices of the peace for the said {county or united counties, or as tlie case may be) as might then be there, to testify what he should know concerning the said A. B., or the matter of the said information {or complaint) : and whereas proof hath this day been made oeforc me, upon oath, of such summons having been duly served upon the said E. F. ; and whereas the said E. F. hath neglected to appear at the time and place appointed by the said summons, and no just excuse hath been offered for such neglect ; these are therefore to command you to take the said E. F., and to bring and have him on , at 101 iSi Mill ,if^:!.( 802 SbttnittiAtfi eotiufctioti* \im ■ wSwffll'J ) To all or any of the constable j" or other peace officen ■s, 1 o'clock in the noon, at before me or such justice or in, tices of the peace for the said {county or united counties or 1 the case may be\ as may then be there to testify what he sha know concerning the said information (or complaint.) Given under my hand and seal, this day of , in jj. year of our Lord , at in the (county, or as tJu case ma he) aforesaid. J-S. [L.8.1 (G. 3.) Warrant /or a Witness in the First Instance. Province of Canada : {County or united counties , or as the case may be) of ^ . ^ ^^ the said {county or united counties, or as the case maybe)\f Whereas information was laid {or complaint was made) be fore the undersigned {one) of her Majesty's justices of th peace in and for the said (county or united counties, or ( the case may he) of , for that {hfc., as in the summotis and it being made to appear berore me on oath that E. p, ( (labourer,) is likely to give material evidence on behalf ( the (prosecutor) in this matter, and it is probable that the sai E. F. will not attend to give evidence without being compelle so to do ; these are therefore to command you to brinw an have the said E. F. before me, on , at o'clock ?n th (fore) noon, at , or before me or such other justice or juJ tices of the peace for the said (county or united counties or } the case may be) as may then be there, to testify what he sha know concerning the matter of the said information (or con plaint.) Given under my hand and seal, this day of , m t year of our Lord, .at , in the (county, or as th mmj be) aforesaid. J. S. [L. 8.] (G. 1.) Commitment of a Witness Jar lie/using to be Sworn or G Evidence. Province of Canada : County or united counties, or > To all or any of the constables as the case may be), of \ other peace officers in the s (county or united counties, or as ilve case may be) of anc the keeper of the common gaol of the said {county or m\ counties, as the case may he) at ; vhereas inforniat was laid (or complaint was made) before (me) (one) of Majesty's justices of the peace in and for the said (cowntj united counties, or as the case may he) of , for that (i as in the summons), and one E. F., now appearing before such justice as aforesaid, on , at , and being rcqui a ction* or such justice ov jus- r united cmnties, or as ) testify what he shall r complcdnt.) day of , in the ity» or as tile case nay J. S. [l. 8.] First Imtance. or any of the constables ither peace officers, in as the case may be) of : onvplaint wa^ wade) he- lajesty's justices of the jr united couniiesy or a« i^., a& in the SMwrnwu), ne on oath that E. F., of rial evidence on behalf of is probable that the said without being compelled timand you to bring and , at' o'clock in the [such other justice or jus. \ty or united counties or m e, to testify what he shall said information (or com- this day of , in the he (county, or as tht mt J.S. [L.S,] using to be Sworn or Gw i il or any of the constables, oi pr peace officers in the said i case may be) oi and to Ithe said {county or umtd\ ; vhereas information I ^efore {me) (onc)ofhoil [and for the said (cowntt/ oil I be) of , for "^a^ (*^" I, now appearing before mel It , and being required Sbtunmati^ ^onhittion* 803 11 [,y me to make oath or affirmation as a witness in that behalf, hath now refused so to do, {or being now here duly sworn as a \vitness in the matter of the said information (or complaint) doth refuse to answer a certain question concerning the pre- mises which is now here put to him, and more particularly the following question, {here insert the exact words of the question), ^vithout offering any just excuse for such his refusal. These are therefore to command you, or any one of the said constables or peace officers to take the said E. F., and him safely to con- vey to the common gaol at aforesaid, and there deliver him to the said keeper thereof, together with this precept ; and I do hereby command you the said keeper of the common gaol to receive the said E. F. into your custody in the said common gaol and there imprison him for such his contempt for the space of days, unless he shall in the meantime consent to be examined and to answer concerning the premises, and for so doing this shall be your sufficient warrant. Given under my hand and seal, this day of in the year of our Lord , at , in the (county, or as the case may M aforesaid. ' J. S. [L. 8.] (H.) Warrant to Remand a Defendant when Apprehended. Province of Canada : {County or united counties or ") To all or any of the constables, as the case may be), of ) or other peace officers in the said {county or united counties, or as the case may be) of and to the keeper of the {common gaol or lock-up house) at Whereas complaint was made (o?- information) was laid before (one) of her Majesty's justices of the peace in and for the (county or united counties, or as the case may be) of , for that (&c., as in the summons or tvarrant) ; and whereas the said A. B. hath been apprehended under and by virtue of a warrant, upon such information (or complaint) and is now brought before me as such justice as aforesaid; these are therefore to command you, or any one of the said constables, or peace officers, in her Majesty's name forthwith to convey the said A. B. to the {common gaol or lock-up Jumse) at , and there to deliver him to the said keeper thereof, together with this precept ; and I do hereby command you the said keeper to i receive the said A. H. into your custody in the said (common ^aol or lock-up Jtousc) and there safely keep him until next, the day of (instant), when you are hereby com- Iraandedto convey and have him at , at o'clock in the noon of the same day, before me, or such justice or justices [of the peace of the said (county or united counties, or as ilie \me may be) as may then be there, to answer to the said infor- Imation {or complaint), and to be further dealt with according Ito law. :1 :^ Vi '■ i I, i' ..'>'>' ■■>■ iiii I:-;' U'U 5;}t .1 ■1- t;: ■ ■ I I i' .ft li'-i'V :. 'i' i ' : ■ i- ' ';■ I '.■',■ ; .,.1 ^i •a,-,' 804 Sttttimati^ eoniif(tfdn« Given under my hand seal, this day of in the yearo our Lord , at , in the {county^ or aa the case may i^ atoresaid, J. S. [l. g i ^ (I. 1.) Conviction for a Penalty to he Levied hy Distress, and Default o Sujicient Distress, hy Imprisonment. Province of Canada : {County or united counties , or ") Be it remembered, that on thi as the case may be) of ) day of , in the year of on Lord , at , in the said (county or united counties, or a the case may be), A. B. is convicted before the undersigned (owe) of her Majesty's justices of the peace for the said (cauux or united counties, or as the case may be) for that he the sail A. B., (&c., stating the offence, and the time and place whe] and where committed), and I adjudge the said A. B. for hi said offence to forfeit and pay the sum of (stating th penalty, and also the compensation, if any) to be paid and an plied according to law, and also to pay to the said C. D. thi sum of , for his costs in this behalf; and if the several sum be not paid forthwith or on or before the of next, *| order that the same be levied by distress and sale of the good! and chattels of the said A. B., and in default of sufficient dis' tress, *I adjudge the said A. B. to be imprisoned in the commor gaol of the said (county or united counties, or as the case may be' at in the said county of (there to be kept to luiri labour) for the space of , unless tne said several sums am all costs and charges of the said distress (audof the commitmen and conveying of the said A. B. to the said gaol) shall be soone paid. Given under my hand and seal, the day and year first abov mentioned, at in the (coujity or united counties, or as case may be) aforesaid. J. S. [l. s. *0r, when the issuing of a distress warrant would be rub 0U8 to the defendant or his family, or it appears that he no goods ichereon to levy a distress, then, instead of the wor between the asterisks ** say, " then inasmuch as it hath been made to appear to me (that the issuing of a warrant distress in this behalf would be ruinous to the said A. B, his family," or, "that the said A. B. hatli no goods or ch tels whereon to levy the said sums by distress)," I adjm &c., (as above, to the end.) (L 2.) Conviction for ct Penalty, and in default of Payment, 7j«j;r(* ment. Province of Canada : (^County or united counties, or ) Be it remembered, that on or as the case may be) of \ day of , in the yeai /(( no y of in the year of , or OA the case may hA J. S. [l. 8.] Distress^ and Default of isonment. tiembered, that on the , in the year of our )r united counties, or ai lefore the undersigned, ;ace for the said (county t be) for that he the said le time and place when the said A. B. for his mm of {stating tk ny) to he paid and ap« ay to the said C. D. the ; and if the several sums e the of next, *I Bss and sale of the goods default of sufficient dis- mprisoned in the common tiest or as the case may be) there to be kept to Jiard le said several sums and ss (aud of the commitment said gaol) shall be sooner B day and year first above united counties, or an ik J. S. [L. S.] 8 warrant would Ic rum- )r it appears that he Jm hen, instead of the u'onh inasmuch as it hath m^ c issuing of a warrant of lous to the said A. B. ov 5. hath no goods or chat- by distress),'' 1 adjudge, iidt of Payment, hnprmA remembered, thatontliel day of , in the year 01 1 Sttitiniati^ eonlifn(on* 805 our Lord , at , in the said {county or united counties, gr as the case may be), A. B. is convicted before the under- signed, {one) of her Majesty's justices of the peace for the said (county or united counties, or as the case may be), for that ho tlie said A. B. (&c., stativrj the offence, and the time and place ichen and where it was committed,) and I adjudge the said A. B. for his said offence to forfeit and pay the sum of {stat- ina the penalty and the compensation, if any), to be paid and jpplied according to law ; and also to pay to the said C. D. the sum of for his costs in this behalf; and if the said several sums be not paid forthwith {jyr, on w before next,) I ad- judge the said A. B. to be imprisoned in the common gaol of the said {county or united counties, or as the case may be,) at in the said county of {and there to be keptt at hard labour) for the space of , unless the said sums and the costs jnd cnarges of conveying the said A. B, to the said common gaol, shall be sooner paid. Given under my hand and seal, the day and year first above mentioned, at in the {county, or as the case may be) aforesaid. J. S. [l. 8.1 (I. 8.) Conviction when the Punishment is by Imprisonment, &c. Province of Canada : (County or united counties, or ) Be it remembered, that on the as the case may be) of J day of , in the year of our Lord , in the said {county or united counties, or as the case may be) A. B. is convicted before the undersigned (one) of her Majesty's justices of the peace in nnd for the said (county or united counties, or as the case may be) for that he the said A. B. (&c., stadHtj the offence, and the time and place ichm and where it ii-as vommitied) ; and I adjudge the said A. B. for his said offence to be imprisoned in the common gaol of the said {county or united counties, or as the case may be,) at in the county of {and there to be hcjH at hard labour) for the space of ; and 1 also adjudge the said A. B. to pay to the saidC. D. the sum of for his costs in this behalf, and if the said sum for costs be not paid forthwith, {or on or before next,) then * I order that the said sum be levied by distress and sale of the goods and chattels of the said A. B. ; and in de- fault of sufficient distress in that behalf, * I adjudge the said A. B. to be imprisoned in the said common gaol, {a7id there kept at hard labour) for the space of , to commence at and from the term (a) of his imprisonment aforesaid, unless the said sum for costs shall be sooner paid. Given under my hand and seal, the day and year first above mentioned at in the {county or united counties, or as the case may be) aforesaid. J. S. [l. s.] (a) Quctre. — The beginning or end of such term ? The end is probably intended. ■I -I 'J m i<'i V : 806 Sttmmati^ eonlifctfon. ..:■] 1 m !• «.:5- * Or, t^Aen . the m \ Ind also to pay to the said In that behalf; and It ^v.. should not be paid on or 1 before the said then next, the same should be levied by distress and sale of the goods and chattels of the said A. B. ; and it was adjudged that in default of sufficient distress in that be'iilf" t^** ""' ~ -* • —• *"«J"id be imprisoned in the common gaol of the said {county or united counties, or as the case may ^ \ at in the said county of (and there kept at hard labifli7 distrm xvananU s\ : And whereas aUer- he year aforesaid, I, \\\i any of the constahles or united counties, or as tk hem,or anyof them,io bv distress and sale of And whereas it appears Q warrant of distress, by If the same, as otherwise, rent search for the goods at no sufficient distress intioncd could he found; ie said constables or peace ;aid A. B., and him safely aforesaid, and iheie pr wi'th this precept ; and leepo.r of the said coramou 'voir custody, HI the sm I (and keep him at had '; {lie said several sums. said distress, (ando/th« ;J A B. to the saidm- "''^•^f , shall le 'aSi for so doing thissyi Sbummuvti To all or any of the constables as the case may be) of \ and other peace officers in the said (county or united counties, or as the case may be) of , and to the keeper of the common gaol of the said im't^y ^^ unite'- counties, or as the case may be) of In in the s '^ county of Whereas A. t . ate of (labourer,) was on this day con- victed before the undersigned (one) of her Majesty's justices of the peace in and for the said (county or united counties, or as ihecase may be) for that (stating the offence as in the convic- fm), and it was thereby adjudged that the said A. B. for his offence should forfeit and pay the sum of (&c., as in the convictim,) and should pay to the said C. D. the sum of for his costs in that behalf; and it was thereby further adjudged that,if the said several sums should not be paid (forth- idth) the said A. B. should be imprisonea in the common gaol of the said (county or united counties, or as the case may be) j^{ in the said county of (and there kept at kardlabour) ior the space of , unless the said several sums (and the costs and cfiarges of conveying the said A. B, to the said common gaol) should be sooner paid ; and whereas the time in and by the said conviction appoint- ed for the payment of the said several sums hath elapsed, but the said A. B. hath not paid the same or any part thereof, but therein hath made default. These are therefore to com- mand you, the said constables or peace officers, or any one of vou, to take the said A. B., and him safely to convey to the common gaol at aforesa-d, and thc-e to deliver him to the keeper thereof, together with this puM :»pt ; and I do hereby command you the said keeper of the said common gaol to uccive the said A. B. into your custody in the said common , there to imprison him {and keep him at hard lahour) for the space of , unless the said several sums (and costs and (hanjes of carrying him to the said common gaol, amounting p the further sum of ), shall be sooner paid ; and for your 10 doing this shall be your sufficient warrant. Given under my hand and seal this day of , in the 'mnty, or as the case may be) aforesaid. J. S. [l. s.] . til -l:!^'' \ i^ft x' ll^l t I It I Jffl"' '^ ^ "J « J 'I III 4 i'j]' f I I'J^it' 111 ?il iiliMW^i* 814 Sttmtifati? eoniifctfon* (O 2.) TPan*an< q/* Commitment on an Order in the first instance. Province of Canada : (County or united counties, or \To all or any of the constabli as the case may be) of J and other peace officers i the said (county or united counties, or as the case may m , and to the keeper of the common gaol of the (county ( united counties, or as the case may be) of at in \\ said county of Whereas on last past, complaint was made before tl undersigned (one) of her Majesty's justices of the peace in ar for the said (county or united counties, or as the case may be) for that (&c., as in the order) and afterwards, to wit, c the day of , at , the parties appeared before me tl said justice (or as it may be in the order) and thereupc having considered the matter of the said complaint, I adjudge the said A. B. to pay to the saidC. D. the sum of , on orbefoi the day of then next, and also to pay to the said C. I the sum of for his costs in that behalf ; and I also thereb adjudged that if the said several sums should not be paid on i before the day of then next, the said A. B. shoul be imprisoned in the common gaol of the (county or unih counties, or as the case may be) of at in the sa county of (and there be kept at hard labour) for the spai of , unless the said several sums (and the costs ai charges of conveying the said A. B. to the said common gi as the case may be) should be sooner paid ; and whereas tl time in and by the said order appointed for the payment of tl said several sums of money hath elapsed, but the said A. hath not paid the same or any part thereof, but therein h made default ; these are therefore to command you, the s constables and peace officers, or any of you, to take the said B. and him safely convey to the said common gaol, at aforesaid, and there to deliver him to the keeper thereof, gether with this precept ; and I do hereby command yon said keeper of the said common gaol, to receive the said A into your custody in the said common gaol, there to impri him (and keep him at )iard labour) for the space of unless the said several sums (and the costs and charges of veying him to the said common gaol, amounting to the fu, sum of ,) shall be sooner paid unto you the said kee and for your so doing, this shall bo your sufficient warrant] Given under my hand and seal, this day of the year of our Lord at , in the (county, or a. case way be) aforesaid. J. S. [L. m tfon* in the frtt instance. T any of the constables )ther peace officers in as the case may be) of gaol of the (county or 1^) of a^ i^ the t was made before the ices of the peace in and or as the case may be) of d afterwards, to wit, on appeared before me the e order) and thereupon id complaint, I adjudged lesumof ,011 or before to pay to the said C. D. ihalt ; and I also thereby J should not be paid on oi jxt, the said A. B. should of the (county or uniH at in t^^ **''^ /lorti labour) for the space sums {and the costs ani to the said common gad, r paid ; and whereas tk ted for the payment of tk apsed,butthesau\A.B thereof, but therein hath to command you, the said of you, to lake the said A, ,d common gaol, at to the keeper thereof, to- hereby command you ilw to receive the said A. B, on gaol, there to imprison A for the space of , he costs and charfTcs of m. oLamountin^rtotkcfunk] d unto you the said keeper; vour sufficient warrant. this ^»y "^ '"' , in the {county, or as Ik J.S. [L.*] (a. 1.) 815 ]Yarrant of Distress for Costs upon an Order for Dismissal of an Information and Complaint. Province of Canada : (County or united counties, or ) To all or any of the constables, as the case may be) of \ or other peace officers in the said (county or united ''ounties, or as the case may be) of Whereas on last past, information was laid (or com- plaint was made) before (one) of her Majesty's justices of the peace in and fo'* the said (county or united counties, or as the case tnay be) of for that (&c., as in the order of dismissal,) and afterwards, to wit, on at , both parties appear- ing before in order that (I) should hear and determine the same, and the several proofs adduced to (me) in that behalf being by (we) duly heard and considered, ana it manifestly ap- pearing to (me) that the said information (or complaint) was not proved, (I) therefore dismissed the same, and adjudged that the said C. D. should pay to the said A. B. the sum of for his costs incurred by him in his defence in that behalf ; and (/) ordered that if the said sum for costs should not be paid (forth- y^th) the same should be levied on the goods and chattels of the said C. D., and (/) adjudged that in default of sufficient distress in that behalf the said C. D. should be imprisoned in the common gaol of the said (county or united counties, or as the case may be) of at in the said county of (and tlitre kept at hard labour) for the space of , unless the said sum for costs, and all costs and charges of the said distress, and of the commitment and conveying of the said A. B. to the said common gaol should be sooner paid ; * and whereas the said C. D. being now required to pay to the said A. B. the said sum for costs, hath not paid the same, or any part thereof, but therein made default ; these are therefore to command you in her Majesty's name, forthwith to make distress 01 the goods and chattels of the said C. D., and if within the space of days next after the making of such distress, the said last mentioned sum, together with the reasonable charges of taking and keeping the said distress, shall not be paid, then that you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale to me (the Justice ifAo made such order or dismissal tis the case may be) that (I) may pay and apply the same as by law directed, and may render the overplus (if any,) on demand to the said C. D., and if no such distress can be found, then that you certify I the same unto me, (or to any other justice of the j^eam Jor the \mme) (county or united counties, or as the case may be) to the end that such proceedings may be had therein as to law doth appertain. Given under my hand and seal, this day of , in the m\ 816 Sbummuttgi eonlifctfon«- lli' i(''iM year of our Lord be) aforesaid. , at in the (counti/ or at the case tnc '• S- [l. s.] (a 2.) Warrant of Commitment /or want of DUtress in the last case Province of Canada : ( County or united counties, or ) To all or any of the constabjp as the case may ie) of J or peace officers, in the sai (county or united counties, or as the case may be) of , and i the keeper of the common gaol of the said {county or u^ii counties, or as the case may be) of , at in the sai county of Whereas (<&c., as in tfie form, to the asterisk,* and then thui' and whereas afterwards, on the day of , in the aforesaid, I, the said justice, issued a warrant to all or yea anyc the constables or other peace officers of the said (countu n united counties, or as the case may be) commanding them, or an' of them, to levy the said sum of for costs, Oy distress an sale of the goods and chattels of the said C. D. And whereas i appears to me as well by the return to the said Warrant o distress of the constable (or peace officer) charged with tlii execution of the same, as otherwise, that the said constabli hath made diligent search for the goods and chattels of the saic C. D., but that no sufficient distress whereon to levy the sum above mentioned could be found. These are therefore to com mand you, the said constables and peace officers, or any one you, to take the said C. D. and him safely convey to the mon gaol of the said (county or united counties as the case may at aforesaid, and there deliver him to the keeper then together with this precept; and I hereby command you, said keeper of the said common gaol to receive the said C into your custody in the common gaol, there to imprison h (and keep him at hard labour) for the space of (unless the sa sum, and all the costs and charges of the said aistress) am the commitment and conveying of the said C. D. to the said comni gaol, amounting to the further sum of ,) shall be sooner pa up unto you the said keeper ; and for your so doing, this sh be your sufficient warrant. Given under my hand and seal, this day of in year of our Lord , at , in the (county or as (he case n\ com k be) aforesaid. (R.) J. S. [l. s. Certificate of Clerk of the peace that the costs of an appeal urt\ paid. Office of the clerk of the peace for the (county or united c(\ ties, or as the case nwy bi) of nty or as tlie case nuiy J. S. [L. 9.] stress in the last case. : any of the constables, 5 officers, in the said may he) of , and to said (county or uniied ^ at itt the said isiensfc,* and then tlm:) ay of . ^^ the yeat warrant to all or any of of the said (county or minanding them, or any ■or costs, ')y distress and iC. D. And whereas it I to the said warrant of fficer) charged with the that the said constable < Is and chattels of the said whereon to levy tlio sum lose arc therefore to com. ace officers, or any one of afely convey to the com. nties as thr case may Ic). ...1 to the keeper thereof e'rcby command you, thp to receive the said C. D, ol, there to imprison him pace of (unless the said the said distress) ondo/ d C. D. to the said commm ,) shall be sooner paid |)r your so doing, this shall ^is day of in liie (county or as (he cm<'. iiwj J. S. [L.S.] the costs of an appeal arc wi iho {county otu>utcdm\' Sbnmmuvs! eonlifctiotf. 817 Title of the Appeal. I hereby certify, that at a court of general quarter sessions of the peace holden at , in and for the said (county or united ounties, or as the case may he) on last past, an appeal by A. u against a conviction (or order) of J. S. Esquire, one of her Majesty's justices of the peace in and for the said (county or iniled counties^ or as the case may he), came on to be tried, and was there heard and determined, and the said court of general luarter sessions thereupon ordered that the said conviction (or ort?e»') should be confirmed (or qicushed,) and that the said ig.nneHant) should pay to the said (respondent) the sum of for costs incurred by him in the said appeal, and which sum vas thereby ordered to be paid to the clerk of the peace of the aid (county or united counties, or as the case may he) on or before tjje day of instant, to be by him handed over to the said (respondent), and I further certify that the said sum for costs has not, nor has any part thereof, been paid in obedience to the said order Patcd the day of , one thousand eight hundred and G. H. Clerk of the Peace. (S. 1.) Il^arrant of Distress for Costs of Appeal against a Conviction or Order. Province of Canada : (County or united counties, or ) To all or any of the constables, as the case may be) of ) or other peace officers, in the said (county or united counties, or as the case may be) of : Whereas (J^-t ^ i^ ^''^ warrants of distress, JV* 1,2, ante, and to the end of tiie statement of the conviction or order, and tJicn thus): And whereas the said A. B. appealed to the court of general (luarter sessions of the peace for the said (county or united counties, or as the case may be) against the said conviction or order, in which appeal the said A. B. was the appellant, and the said C. D. (or J. S., esquire, the justice of the peace who made the said conviction or order) was the respondent, and which said appeal came on to be tried and was heard and de- termined at the last general (juarter sessions of the peace for the said (county or united counties, or as the case may be) holden 3i , on , and the said court of general quarter sessions thereupon ordered that the said conviction (or order) should be confirmed (or quaslied,) and that the said (appellant) should pay to pay to the said (respondent) the sum ot for his costs in- curred by him in the said appeal, which said sum was to bu miid to the clerk of the peace of the said (county or united counties, or as the case may be) on or before the day of one thousand eight hundred , to be by him handed over to the said (C D.); and whereas the clerk of the peace of the 103 aiiiv'l wi: m m 838 Sbnmmuvu! eonbfctfon* (j( « i jii ^'' !'■ ; Ifii Pi ^' . 1^ ; m said (county or united counties, or as the case may be) hath oi the day of instant, duly certified that the said sum fo costs had not heen paid ;* these are therefore to command yoi in her Majesty's name, forthwith to make distress of the good and chattels of the said (A. B.) and if within the space of days next after the making of such distress, the said last men tioned sum, together with the reasonable charges of taking am keeping the said distress, shall not be paid, that then you d sell the said goods and chattels so by you distrained, and d pay the money arising from such sale to the clerk of the peac for the said (county or united counties, or as the case may be) c , that he may pay and apply the same as by law directed and if no such distress can be found, then that you certify th same unto me or any other justice of the peace for the sam (county or united counties, or as the case may be) to the end tha such proceedings may be had therein as to law doth appertain Given under my hand and seal, this day of , in ih year of our Lord , at , in the (county, or as the case ma be) aforesaid. O. K. [l. s,] (S. a.) Warrant oj Commitment for want of Distress in the last can \ To all or any of the constable: J or other Province of Canada : (County or united counties, or as the case may be) of J or other peace officers, in ih said (county or united counties, or as the case may be) of , an to the keeper of the common gaol of the said (county or uniu counties, or as the case may be) of , at , in the said count of Whereas (^'C, as in the last form, to the asterisk ', and Ik thus) : And whereas, afterwards, on the day of , in i] year aforesaid, I, the undersigned, issued a warrant to all any of the constables and other peace ofTicers in tin; said [coun or united counties, or as the case may be) of , commandii them, or any of them, to levy the said sum of , for costs, distress and sale of the goods and chattels of the said A. and whereas it appears to me, as well by the return to the si warrant of distress of the constable (or peace officer), who charged with the execution of the same, as otherwise, that said constable hath made diligent search for the goods chattels of the said (A. B.), but that no sufficient distress whe on to levy the said sum above mentioned could be found ; th are therefore to command you, the said constables or peace cers, or any one of you, to take the said A. B,, and him sa to convey to the common gaol of the said (county or united m ties) of (as the case may be,) at , aforesaid, and there liver him to the said keeper thereof, together with this prece and I do hereby command you, the said keeper of the .< tfon* case way be) hath on hat the said sum for jfore to command you ! distress of the goods ithin the space of ess, the said last men- charges of taking and paid, that then you do you distrained, and do , the clerk of the peace or as the case may be) of me as by law directed ; len that you certify the ,he peace for the same may be) to the end that s to law doth appertain, s day of , in the ounty, or as the case may O. K. [L. s.] Sttttiniatrs Con^fctfon* 819 r Distress in the last can, 11 or any of the constables, other peace oiriccrs, in the e case may be) of , and the said {county or tmUed it , in the said coiinly ,0 the asteiisk\ and then the day of , in the isued a wnrrant to nil or ofTicers in tlu; said {county y be) of , commandinj: Isumot , for costs, by chattels of the said A. B,; 11 by the return to the said \(or peace officer), who was rne, as otherwise, that the search for the «;oods and (o sufficient distress where- [ned could be found ; these lid constables or peace oti- said A. B., and him safely \sMi (county or united mn. ' .aforesaid, and there de- together with this precept; said keeper of the m{ I common gaol to receive the said A. B. into your custody in the said common gaol, there to imprison him (and keep him at hard labour) for the space of , unless the said sum and all costs and charges of the said distress (and of the commitment and con- veying of the said A.B. to the said common gaol, amounting to the further sum of ) shall be sooner paid unto you, the said keeper ; and for so doing, this shall be your sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the (county, or as the case may be) aforesaid. ^ O. K. [L. s.l (T.) General Form of Injormation on Oath. Province of Canada : (County or united counties, or \ The information (or complaint) as the case may be), of j of C. D., of the township of in the said (county or united counties, or as the case may be) of (Iciljourer) (If preferred by an attorney or agent, say ;) " by D. E., his duly authorised agent (or attorney), in this behalf, taken upon oath, before me, the undersigned, one of her Majesty's justices of the peace, in and for the said (county or united counties, or as the case may be) of , at N., in the said (county, or as the case may be) of , this day of in the year our Lord, one thousand eight hundred and , who saith* that (he hath just cause to suspect and believe, and doth sus- pect and believe that) A. B., of the (toivnship) of , in the said (county, or as the case vm.y be) of (within the space of ,) {the time ivithin which the information or complaint must be laid,) last past, to wit, on the day of instant, at the township of , in the (county, or as the case may be) afore- said, did (here set out the offence, i^-c.) contrary to the form of the statute in such case made and provided. C. D. (or D. E.) Taken and sworn before me, the day and year and at the place above mentioned. Form of Order of Dismissal of an Injormation or Complaint, Province of Canada : (County or united counties, or > Be it remembered, that on , as the case may be), of ^ information was laid (or com- plaint was made) before the undersigned, (ofie) of her Majesty's justices of the peace in and for the said (county or united coun- " ties, or as the case may be) of for that (4"^'> ^ *w the sum- vions to the defendant,) and now at this day, to wit, on , at , * both the said parties appear before me in order that I should hear and determine the said information (or complaint), (or the said A. B. appeareth before me, but the said C. D., *Jf at an adjournment, inaert her$ : ** To vhich day the hearing of this case hath been duly adjourned, of which the said G. D. had due notice." id ■:«■ It m ■< i'-i' i 820 jSuinitiatai iHTonUfctfon. i'.-ii'' ill If ( H' ' i IT?; i although duly called, doth not appear) ; whereupon the tnatt« of the said information (or complaint) being by me duly cor sidered Tit manifestly appears to me that the said informatioi or complaint is not proved, and (f ) I do therefore dismiss tli same,) and do adjudge that the said C. D. do pay to the sai A. B. the sum of for his costs incurred by him in hi defence in this behalf; and if the said sum for costs be nc paid forthwith, (or on or be/ore ), I order that the same b levied by distress and sale of the goods and chattels of the sal C. D., and in default of sufficient distress in that behalf adjudge the said C. D. to be imprisoned in the common gaoh the said (county or united ounties, or as the case may be) of at in the said county of (and there kept at hat labour) for the space of , unless the said sum for costs, an all costs and charges of the said distress (and of the commii ment and conveying of the said C. D. to the said common gaol shall be sooner paid. Given under my hand and seal, this day of , in ti, year of our lord, , at in the (county, or as the case may In aforesaid. J- S. [l. 8.J f If the iuformant or complaiiiant do not appear, these irorUa may i omitted. ' Form of Certificate of Dismissal. I hereby certify, that an information (or complaint) preferre by O. D. against A. B. for that (4^^, as in the summons) ws this day considered by me, one of her Majesty's justices (, the peace in and for the (county or united counties, or as the cm may be) of , and was by me dismissed (idth costs). Dated this day of , one thousand eight hundrc and J.S. General Form of Notice of Appeal Against a Conviction. To C. D. of &c., and (the names and additions of the parti to whom the notice oj appeal is required to be given.) Take notice, that I, the undersigned A. B., of, &c., intend to enter and prosecute an appeal at the next gener quarter sessions of the peace, to be holden at , in and f the (county or united counties, or as tlie case may be,) of against a certain conviction (or order) bearing date on or abo the day of instant, and made by (you) C. D., Esquii (one) of her Majesty's justices of the peace for the said (c&un or united counties, or as the case may be,) of , whereby I, said A. B., was convicted of having or was ordered to pay (here state the offence as in the conviction, information or su mons, or the anumnt adjudged to be paid, as in the order, as rectly aspotsible) : and further, take notice that the grounds my appeal are, first, that I am not guilty of the said ofcnc ctfon* whereupon the matter eing hy me duly con- L tlie said information, ) therefore dismiss the D. do pay to the said curred by him in his d sum for costs be not jrder that the same be and chattels of the said stress in that behalf, 1 1 in the common gaol of ( the case may be) of (and there kept at hard said sum for costs, and ess (and of the commit- lo the said common gaol) IS day of , in the nty, or as the case may if) J. S. [l. 8.J ftppe»r, these urords may be Dismissal. 1 (or complaint) preferred as in the summons) was ler Majesty's justices of ited counties, or as the case ssed {icith costs). thousand eight hundred Against a Conviction. nd additions of the partiis i to be given.) oncd A. Bm of, &c., do Tpeal at the next general holden at , in and for , the case may be,) of , b bearing date on or about by (you) CD., Esquire, peace for the said (com«(i/ r\ of , whereby I, tlie >r was ordered to pay , frtton, information or sum. laid, as in the order, as cm- notice that the grounds of ■uilty of the said offence: Sutnmatvi^ ConHUtfon* 821 secondly, that the formal conviction drawn up and returned to the sessions is not in law sufficient to support the said convic- tion of me the said A. B., (together tvith any other grounds, cure being taken that all are stated, as the appellant will be pre- cluded from going into any other than those stated.) Dated this day of one thousand eight hundred and A. B. yltv.—U '*•' notice be given by tevrral defendants, or by nn attorney, it can tasily be adapted. Form of Recognizance to Try the Appeal, ^. Be it remembered, that on , A. B., of (labourer,) and L. Mm of (grocer,) and N. O., of (yeoman,) personally came before the undersigned, (one) of her Majesty's justices of the peace in and for the said (county or united counties, or as tlie case may be,) of , and severally acknowledged themselves to owe to our sovereign lady the dueen, the several sums fol- lowing, that is to say» the said A. B. the sum of , and the said L. M. and N. O. the sum of , each, of good and lawful money of Canada, to be made and levied of their several goods and chattels, lands and tenements respectively, to the use of our said lady the Clueen, her heirs and successors, if he the said A. B. shall fail in the condition endorsed. Taken and acknowledged the day and year first above men- tioned, at , before me. J. S. The condition of the within written recognizance is such, that if the said A. B. shall, at the (next) general quarter ses- sions of the peace, to be holden at , on the day of next, in and for the said (county or united counties, or as the case may be,) of , enter and prosecute an appeal against a certain conviction bearing date the day of instant, and made by me the said justice, whereby he the said A. B. was convicted, for that he the said A. B. did on the day of , at the township of , in the said (county or united counties, or astJie case may be,) of (here set out the ojjence as stated in Ike conviction;) and further, that if the said A. B. shall abide by and duly perform the order of the court to be made upon the trial of such appeal, then the said recognizance to be void, or else to remain in full force and virtue. farm of Notice of such Recogtiizance to be given to the Defendant (Appellant) and his Surety. Take notice, that you, A. B., are bound in the sum of pounds, and you, L. M. and N. O. in the sum of each, that you the said A. B. at the next general quarter sessions of the peace to be holden at , in and for the said (county or united counties, or as the case may be) of , enter and prosecute an i: !! I'' . I % CM w illil I plflfel'ii.'. JiH^h^'' *■ K|i ! > J. .r F, II it 822 Suretfe»* appeal against a conviction dated the day of (insta whereby you, A. B., were convicted of (stating offence sliort and abide by and perform the order of the court to be m upon the trial of sueh appeal ; and unless you prosecute s appeal accordingly, the recognizance entered into by you forthwith be levied on you. Dated this day of one thousand eight hundred an SURETIES. Complaint by the Party Tfireatened 'for Sureties for Vie Pe Proceed as in the form (T.) to the asterisk* , then : Jid the day of (instant, or last past as the case may threaten the said C. D. in the words or to the effect follow that is to say, (set them out, with the circumstances under vn they were used) : and that from the above and other threats u by the said A. B. towards the said C. D., he the said C. D afraid that the said A. B. will do him some bodily injury, therefore prays that the said A. B. may be required to find licient sureties to keep the peace and be of good behavi towards him the said C. D. ; and the said C. D. also saith i he doth not make this complaint against nor require such si ties from the said A. B. from any malice or ill-will, but mei for the preservation of his person from injury. Form of Recognizajice for the Sessions. Be it remembered, that on the day of , in the yej our Lord , A. B., of (labourer), L. M., of (grocer, N. O., of , (butcher), personally came before (us), the dersigned, (two) of her Majesty's justices of the peace fui said (county or united counties, or as the cane may be), of severally acknowledged themselves to owe to our lady Q,ueen the several sums following, that is to suy : the sai B. the sum of , and the said L. M. and N. (). the sii each, of good and lawful money of Canada, to be made levied of their goods and chattels, lands and tenements re tively, to the use of our said lady the Queen, her heirs and cessors, if he the said A. B. fail in the condition endorsed Taken and acknowledged the day and year first above tioned, at , before us. J. J. The condition of the within written recognizance is sucl if the within bounden A. B. (of, &c.) shall appear at the court of general quarter sessions of the peace to be hold and for the said (county or united counties, or as the case mt of , to do and receive what shall be then and there enl him by the court, and in the meantime shall keep the] and be of good behaviour towards her Majesty and all hen Sbttttimotifii* 823 and eight hundred and Iten recognizance is suchikl \c.) shall appear at the neii [of the peace tobeholdenia counties, or as the case maM ■all be then and there enjoine^l fantime shall keep the peate 1 her Majesty and all her lieji gple, and especially towards C. D. (of, &c.) for the term of now next ensuing, then the said recognizance to be void, or else to stand in full force and virtue. Form of Commitment in Default of Sureties, Province of Canada: (County or united counties, or ) To the constable of the in Its the case may be") of \ the county of (one of the llgil counties of or as the case may be) and to the keeper of the common gaol of the said county (or united counties, as the caicinay be) at , in the said county (or in the county of Whereas on the day of , instant, complaint on oath was made before the undersigned (or J. L., Esquire,) (one) of lier Majesty's justices of the peace in and for the said (county or united counties, or as the case may be) of , by C. D. of tlio township of in the said (county, or as the case may be) ngl)Ourer,) that A. B. of, &c., on the day of , at the town- ship of ' 'ifo''<^said, did threaten (tCr., follow to end of com- nhint, (is inform above, in the past tense, tlicn) : And whereas the said A. B. was this day brought and appeared before the said iiistice (or J. S., Esquire,) one of her Majesty's justices of the peace in and for the said (county or united counties, or as the cose maybe) of , to answer the said complaint: and *having been required by me to enter into his own recognizance in the sum of with two suflicicnt sureties in the sum of each, as well for his appearance at the next general (luarter sessions of the peace, to be held in and for the said Icountu or united counties, or as the case may be) of , to do what shall be then and there enjoined him by the court, as also in the meantime to keep the peace and be of good behaviour towards her Majesty and all her liege people, and especially towards the said C. D., hath refused and neglected, and still refuses and neglects to find such sureties ; these are therefore to command you the said constable of the township of , to take the said A. H., and him safely to convey to the (common c(w/) at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command voii the said keeper of the said (^common gaol) to receive the said A. B. into your custody, in tlio said (common gaol,) there to imprison him* until the said next general sessions of the peace, unless he in the meantime find sufficient sureties as well for his appearance at the said sessions, as in the meantime to keep the peace as aforesaid. Given under my hand and seal, this day of , in the I year of our Lord , at , in the (county, or as the case may Ue) aforesaid. J. S. [l.s.] SUMMONS. A summons is tho usual process issued by justices to pro- :: •% i !i 1 u li 1 ' \\ 1 » 1 ', '' '■ • 11 ' I ■.. , lt til 11 Mil I ill ■ IIP ! ;!'t:#^ '-i i !vS*i ■; ilVmimfii ■'-'■a- ' *)' SLt^ "■ ■ • '■ « »■ * ■It;;; |!ir:ii|i;j|j|i;!i; •:■ jniOf i fi I'l • .Ilia ''i'''M> W^" If;.. 824 Sttminon»« cure the attendance of a person accusied, where the offer is between party and party, and not of an aggravated natui but where the offence is of a higher nature, as felony, brea of the peace, &c., and in cases where the king is a party, may be proper to issue a warrant in the first instance, petty assaults, though justices are authorised to issue a wi rant on complaint on oatn of the party, yet a summons more advisable, as in many cases it is found that there little or no pretence for the accusation. — Paley^ 18. summons may be either directed to the p"^rty, or to a cr stable, requiring him to summon the party — Paley^ \ and it may be issued by one justice in matters of complai to be heard before two justices (sec *2 W. IV., c. 4, and v., c. 178, § 25). Where the summons is directed to the cc stable, or a third person, a copy of it plainly and legibly wr ten on paper, should be served personally (a) upon the par accused; if directed to the party himself, the origin should be served, and a copy of it kept by the par serving it. It should be personally served upon the par accused, unless where personal service (a) is expressly d; pensed with by statute. — Arch. Con. 97. The justice shou fix the time of day when the party should attend; f though the accused is bound (if the summons is to attend petty sessions) to wait until the magistrate can attend to tl complaint, yet it is reasonable to appoint a time tvlien t complaint can probably bo heard.— Toon^, 858. If t complaint is on oath, it should be so stated in the summo — Toone^ 858 ; but an information for a penalty need not on oath, unless the statute requires it. — 8 T. R. 508. W1j( a particular form ot notice or summons is required by statute that must bo strictly pursued. — Paley^ 18. AVIk the defendant, after being duly served with the summo neglects to appear before the magistrate, he may be in t case convicted in his absence. — R. v. tSimpson, 1 Str. - 10 3Iod. 248, 341, 370 ; but proof should previously given of the service of the summons. — Paley, 21. see the "Summary Convictions Act," 16 V., 178, §| In a case where a defendant was convicted withoul previous summons, the Court of Aing's Bench ff:M a criminal information against the justice. — R. v. V<:nall Ld. R. 1407. The defendant should be allowed a roa( able time for his appearance, for a summons to appear in\ (a) Personal service dispeneed with by the Summary Conviction M v., c. 178, § 1, leaving the Shme with a person, at the defendant's lij usual place of abode will be r^ufficieut. It should be with sooic gxm person, and not a mere child nor a stranger, but a resident or inrautcl ied, vrhere the offence an aggravated nature; Dure, as felony, breach the king is a party, it the first instance. In horised to issue a -war- arty, yet a summons is is found that there is ation.— Pa?e2/, 18. A the p^-rty, or to a cou- he party— Pa%, 18; m matters of complaint i'2 W. IV-, c. 4, and 10 ns is directed to the con- plainly and legibly v,rit- »nally (a) upon the party ■ himself, the original it kept by the party y served upon the party ■vice (a) is expressly dis- >„ 97 . The justice should arty should attend; for e summons is to attend a ristrate can attend to the annoint a time whenik, \\LToone, 858. If tlie so stated in the summons for a penalty need not k \t.-8 T. II. 508. \Vbc.7 mmons is required by a m\.—Paleij, 18. >\horc ,rvcd -with the summons, •istrate,hemaybcmtHt I. V. Simpson, 1aW.4 ; 001 should previously be aons.-P«^7y, ^J- ^nj Act," 16 V., 178 Ui Iwas convicted without a If Aing's Bench ffMd iustice.— J?. V. Vcnahh luld be allowed a roasuii- summons to appear imnie. frrTsJii^ary Conviction Act,M lersnn, at the defendants lart« rsbouldbe with8oruofiro.u«p fcr, but a reeideut or mroatc. I SinvHtSf f ot eoon ]$t|iabf out. 825 diateli/i or upon the same day, would be bad, unless cured by the defendant's appearance. — B. v. Mdllison, Burr. 681; / V. Johnson, 1 tStr. 261. For the form of a Summons see " Summary Conviction,*' SUNDAY. See « Lord's Day." SURETY FOR GOOD BEHAVIOUR A man may bo compelled to find sureties of the peace, both for the good behaviour and for the peace ; and yet the good behaviour includeth the peace, and he that is bound to the good behaviour, is therein also bound to the peace. — Dalt., c. 122. The authority under which a justice of the peace muy require surety for the good behaviour, is founded upon the statute 34 Ed. 3. c. 1 ; and the commission of the peace. No one ought to be bound to the good behaviour for any rash, quarrelsome, or unmannerly words, unless they either tend to a breach of the peace, or to scandalise the government, by abusing those who are intruste"!. by it with the administration of justice, or to deter an officer from doing his duty; and therefore, it seems that he who barely calls another "rogue," or "rascal," "liar," or "drunkard," ought not for such cause to be ' bound to the good behaviour. However, says Mr. Haw- kins, I cannot find any certain or precise rules for the direction of the magistrate in this respect, and therefore am inclined to think that he has a discretionary power to take such surety of all those who he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous ; as of thoii'e who sleep in the day and go abroad in the night ; and ofsdch as keep suspicious company; and of such as are (generally suspected to be robbers, and the like ; ar.d of eaves- droppers ; and of common drunkards ; and all otlii.* persons whose misbehaviour may reasonably be intended to bring them within the moaning of the statute ; as persons of evil fame, who being described by an expression of so great a latitude, seem in a great measure to be left to the judgment of the magistrate. But if he commit one for want of sure- ties, he must shew the cause with sufficient certainty. — 1 Raw. 132. Mr. Dalton (who wrote towards the latter end of the reign of king James the first,) in order to determine the same with some kind of certainty, has inserted the following, as instances in whick sureties for the good behaviour may be granted, viz : 104 II; laii'.'i'i |3| f ' 1 11 1 826 Sinvttp f ot €r009 Bei^alif out. Against, 1. Biotcrs. 2. Barrators. 3. Common quarrell and common breakers of the peace. 4. Such as lie in ^fj to rob ; or shall be suspected to lie in wait to rob ; or sh assavlt or attempt to rob another ; or shall put passengers fear or peril ; or shall be generally suspected to be robb on the highway. 5. Such as are like to commit murd homicide, or other grievance to any of the king's subjects their bodies. 6. Such as shall practise to poison anotht one instance of which may be the poisoning of their foe thus Mr. Dalton granted a warrant for the good behavi( against one who had bought ratsbane, and mingled it ^ corn, and then cast it amongst his neighbours' fowls, where most of them died. 7. Such as in the presence of the j tice shall misbehave himself in some outrageous manner force or fraud. 8. Such as arc greatly defamed for resorti to houses suspected to maintain adultery, or incontinencv. Maintainors of houses commonly suspected to be houses common bawdry. 10. Common whoremongers and comm whores. 11. Night-walkers, that shall eaves-drop me houses ; or shall cast men's gates, carts, or the like ii ponds ; or commit other outrages or misdemeanors m \ night ; or shall be suspected to be pilferers, or otherwise li to disturb the peace ; or that be persons of ill behaviour of evil fame or report generally ; or that shall keep compa with such, or with any other suspicious persons in the nig 12. Suspected persons who live idly, and yet fare well are well apparelled, having nothing whereon to live, un upon examination, they shall give a good account of their living. 13. Common gamesters. 14. Such as hue-and-cry without cause. 15. Libellers. 15. Putai father cf a bastard.* 17. Such as persuade or procure putative father of a bastard child to run away. 18. as abuse a justice's warrant, or shall abuf^c him, or the stable in executing his office. Nay, it scemcth, he says, he who shall use words of contempt, cr contrary to manners, against a justice of the peace, Uiough it be no such a time as he is executing his office, yet he shr bound to his good behaviour. 19. Such as charge ario before a justice with felony, riot, or forcible entry, and will not prosecute or give evidence. 20. In general, w soever act or thing is in itself a misbehaviour. — Bait,, To which may be added — 21 . Forcibly entry. — 1 124, "^2. The author of any writing full of obscene riba SI ^There being no poor-laws in this province, an offender of this would not, probably, be liable. J. Common quarrellers 4. Such as lie in vrait n wait to rob ; or stall shall put passengers in mspected to he robbers je to commit murder, ,f the king's subjects in jtise to poison another ; oisoning of their food; for the good behaviour 3 and mingled it witli ighbours' fowls, whereby he presence of the jus- e outrageous manner of tly defamed for resortin - tery, or incontinency. spected to be houses of loremongers and common shall eaves-drop men's carts, or the like, into or misdemeanova ia tbe . pilferers, or otherwise like srsons of ill behaviour, or pr that shall keep company r^ious persons in the nigk y, and yet fare well, or g whereon to live, unless, '^ a good account of sucl\ iters. 14. Such as raise Libellers. 15. Putative i persuade or procure tlie to run away. 18. Sucli all ubuHC him, or the con- ,y, it geemcthjhesaysjtk npt, cr contrary to good peace, Hioughitbenotat his office, yet heshfiUbo Such as charge anotkr or forcible entry, and yei ^;e. 20. In general, )vliat- e;b'chaviour.—i>rt^<-, '•;-•'■ Forcibly entry.-l M. ing full of obscene ribaldry. tovince, an offender of this »ori .%Uieatfn0« 827 I ^1 ffaw. 195. 23. For striking a person in the presence of the justices. — Crom. 124. 24. For threatening so as to deter witnesses from attending a court of justice. — .lb. 125. For what it shall be forfeited. Mr. Hawkins says, it has been laid down as a general rule that 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 main- tainable ; because the stat ite, in ordering persons of evil fame to be bound in this manner, 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 -espect requires them to secure the public from that danger ffhich mt y 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 persons forfeit their recognizance who may yet justly be cQAipolku to give one, as those who keep suspicious company ; or those who spend much money idly, without having any \-isible means of getting it honestly ; or those who lie under ", ffrr^errl suspicion of being rogues and the like. — 1, Haw. I'il '13. However, it seems that such a recognizance shall uui oi^^y l>6 forfeited for such actual breaches of the peace, for which a recognizance for the peace may be forfeited, but dlso for some others for which such a recognizance cannot be forfeited ; as for going round with great numbers to the terror of the people, or speaking with words tending to sedition ; and also, for all such actual misbehaviours which are intended to be prevented by such recognizance, but not for barely giving cause of suspicion of what perhaps may never happen. — 1 ffaw. 133. For the forms requisite under this title, see " Articles of Ithe Peace," the forms in which may bo easily adapted in [any case that may arise under this head, observing through- out to confine the subject matter to "surety of the good Ibehaviour," omitting the words "surety of the peace." SURVEYORS. See " Highway 8j' " Land Surveyors" SWEARING. By stat. 19 G. II., c. 21, the following penalties are im- posed on offenders who shall profanely curse or swear, and fe convicted thereof on confession, or oath of one witness, eforc one justice, viz. : every day-labourer, common soldier .Pi fi\.- If km I I ! ;i!^ 828 ^fUutimi* or commor .eaman, one shilling ; every other person und the degree of a gentleman, two shillings ; and every pers( of or above the degree of a gentleman, five shillings; ai for a second offence after conviction, double ; and for eve subsequent offence after conviction, treble ; which said pc alties shall go to the poor of the parish, (a) If such persi shall curse or swear in the presence and hearing of a juatic he shall convict him without any other proof. And by provincial statute 12 V., c. 81, power is given the municipal authorities incorporated under that act make by-laws for, amongst other things enumenerated, pi venting vice, drunkenness, profane swearing^ obscei language, and any other species of immorality and ind cency in the other public places. TAVERN LICENSES. See "/»n« and Innkeepers." TELEGRAPH. By 13 & 14 v., c. 31, if any person shall wilfully iialiciously cut, break, or injure any instrument, cap, ^yli post or other i section, used for or by any line of clectr magneti.' telegraph, now or hereafter to bo in operation this pr'' ance ; or in any manner impede or obstruct t action and operation of such line ; such person shall be pu ishable by imprisonment for not less than five days, n more than thirty days, or by fine not exceeding £10, or both, according to the discretion of the presiding magistral and any justice of the peace in any parish, village, city, to or county where the offence was committed, or in which t offender may be found, shall have jurisdiction, and the p cccdings be in a summary way ; and the fine, if not forthw paid, may be levied with costs of prosecution by warrant distress against the offender's goods and chattels ; or si offender may (in the discretion of the magistrate), whet imprisonment be or bo not part of the sentence, be im Boned for a period not exceeding thirty days in additioi and after the expiration of any other imprisonment mak part of iiis sentence, unless such fine and all expense! prosecution be sooner paid ; and all such fines shall be! to the aggrieved and complaining party. By 16 v., c. 10 (act to provide for the incorporatioi telegraph companies), § 1, such association shall consist of (a) So9 *' Fines and Forfeitures," as to Uio application. sry other person under iga ; and every person ,n, five sMllingB; and double ; and for every rehU ; which said pen- sh. (a) If such person nd hearing of a justice, >r proof. c. 81, power is given to ,ted under that act to nga enumenerated, pre- me swearing, obscene of immorality and inde- NSES. ►H. person shall wilfully or ly instrument, cap, ^yire, f by any line of clectro- iter to he in operation in impede or obstruct the such person shall be pun- ess than five days, nor lot exceeding £10, or by the presiding magistrate: f parish, village, city, tomi ommitted, or in which tlic jurisdiction, and the pro- id the fine, if not forthwitli )rosecution hy warrant of ads and chattels; orsucli the magistrate), ^vhetkt of the sentence, be impri- thirty days in addition to ther imprisonment making lifinc and all expenses of all such fines shall belong party. . -le for the incorporation ol sociation shall consist of r"»> ," as to tho application. W^vtutu. 829 less than three persons. § 2. Certificate to be signed by them specifying — 1. The name of the association. 2. The capital of stock. 3. Period of commencement and termina- tion. 4* A copy of the articles of association : such certificate to be acknowledged before a notary, and filed in the office of the Provincial Secretary. ^ § 3. Upon such provisions being complied with the association to be incorporated. § 4. May purchase and hold property. § 5. Power to construct intended line. § 6. Any person who shall wilfully and maliciously injure, molest or destroy any of the said lines, posts, piers or abut- ments, or the material or property belonging thereto, or in any way disturb the working of the said lines of telegraph, shall on conviction be deemed guilty of a misdemeanor, and be punished by a fine not exceeding j£10 or imprisonment not exceeding one month, or both at the discretion of the court.' § 7. Increase of capital, provision for. § 8. Debts not to exceed one-half of the capital stock. § 9, Existing companies may avail themselves of this act. § 10. Duties of the company in transmitting despatches. § 11. Any operator divulging the contents of a private despatch shall be deemed guilty of a misdemeanor, and on conviction liable to a fine not exceeding j£25, or to imprisonment not exceeding three months, or both in the discretion of tho court. § 12. The government may at any time assume temporary possession of the line, and operators shall obey orders under the penalty of £25. § 18. The government may also at any time assume tho entire property after two months' notice. § 14. Compensation for, how settled. § 14. Municipal cor- porations and joint stock companies authorised to take stock in telegraph companies. THEFTBOTE. Theftboto (from tho Saxon tJuift and bote, boot or amends) is, where one not only kno ws of a felony, but takes his goods again, or other amends not to proseoute. — 1 ffaw. 125. See also ^^Compounding Felony.'' THREATS. If one man threaten another, to deter him from doing some lawful act, or to compel him to do some unlawful one, or with intent to extort money from him, or obtain any other benefit (whether real or imaginary) to tho person who makes use of the threat ; this has always been considered a misdemeanor at common 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 !i I liti IS I m 'P"'-:!''\ 1, ii \:.^ii '"m m 830 9|ltreat«« m I k'J gaoler, or other ministerial officer, for keeping a prisoner in custody and properly executing his duty, are ofiFences for which the party may be indicted and punished by fine or imprisonment. — 2 Inat. 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 the 4 & 5 v., c. 25, § 8, contains the following enactment: which money or other property is actually extorted from him — whosoever shall accuse, or threaten to accuse, any person of the abominable irime of buggery, committed either with mankind or with beast, or any assault with intent to commit the said abominable crime, or any attempt or endeavour to commit the said abominable crime, or of making or offering any solicitation, persuasion, promise or threat, to any person whereby to move or induce such person to commit or permit the said abominable crime, with a view to extort, and shall by intimidating such person by such accusation or threat extort or gain from such person any property, shall be guilty of felony, and being convicted shall be liable at the discretion of the court to be imprisoned at hard labour in the provincial penitentiary for life, or any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. § 11. Whosoever shall with menaces, or by force, demand any chattel, money or valuable security of any person, with intent to steal the same, shall be guilty of felony, and being convicted shall be liable to be imprisoned for any term not exceeding three years. § 12. If any person shall knowingly send or deliver any letter or writing, demanding of any person with menaces and without any reasonable or probable cause, any chattel, money oi valuable security ; or if any person shall accuse, or threaten to accuse, or shall knowingly send or deliver any letter or writing, accusing or threatening to accuse any person of any crime punishable by law with death or trans- portation, or of any assault with intent to commit rape, with a view to extort from such person any chattel, money or valuable accuriiy ; every such off'ender shall be guilty of felony, and being convicted shall be liable at the discretion of the court to be imprisoned at hard labour in the provin- cial penitentiary for any term not leas than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. § 17. Whosoever shall steal any chattel, money or valuable security in any dwelling-house, and shall, by any menace or threat, put any one being tberein in bodily fear, shall be guilty of felouy, srouin Kettle* 831 Boping a prisoner in ity, are offences for punished by fine or 26;2aie.C'.i.l49. iolence, or any other ,r, and by means of following enactment: ly extorted from him, to accuse, any person ommitted either with with intent to commit jmpt or endeavour to af making or offering • threat, to any person n to commit or permit (W to extort, and shall accusation or threat, ly property, shall be shall be liable at the ined at hard labour in or any term not less in any other prison or t exceeding two years. 58, or by force, demand ity of any person, with ty of felony, and being soned for any term not rly send or deliver any r person with menaces ^blc cause, any chattel, \y person shall accuse, Iwingly send or deliver (eatening to accuse any iw with death or trans- it to commit rape, with any chattel, money or Ider shall be guilty of I liable at the discretion Id labour in the provin- ^s than seven years, or lor place of confinement jars. § IT. Whosoever [aluable socurity in any Inace or threat, put any all be guilty of felony, and being convicted shall be liable to be imprisoned at hard labour in the provincial penitentiary for any term not ex- ceeding fourteen years, nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. TIMBER RAFTS. * By 12 v., c. 30, s. 13, parties maliciously cutting or loosening booms, or breaking up or casting loose rafts or cribs shall be guilty of a misdemeanor punishable with fine and imprisonment of not less than six months. TOLLS. By 7 v., c. 14, § 1, vehicles laden solely with manure brought from any city or incorporated town in Upper Canada, and employed to carry the same into the country for the purposes of agriculture, and the horse or horses, or other beasts of draught drawing such vehicle shall pass toll free through any turnpike-gate, or toll-gate, or any turnpike road within twenty miles of any such city or town, as well in going as in returning if empty ; and whether such turn- pike road and the tolls belong to the j rovince or to any local or municipal authority, or body of trastecs or commis- sioners for local purposes, or to any incorporated or unincor- porated company, or any other body, person or persons. § 2. All persons going to or returning from divine service on any Sunday or obligatory holiday with their own car- riages, &c., shall, as also their families, &c., pass toll free. § 3. No vehicle, laden or ^unladen, horses or cattle, belong- ing to the proprietor of any lands divided by such turnpike road, shall be liable to toll on passing through such gate (at whatever distance from any city or town) for the sole pur- pose of going from one part of his lands to another : pro- vided the same do not proceed more than half a mile along such road either in going or in returning, for farming or domestic purposes only. § 4. This act not to extend to any toll-bridge vested in any party other than the crown. By 16 v., c. 190 (Joint Stock Company Consolidation Road Act), any farmer residing on the line of any road opposite to and adjoining his farm, when going to or returning from his work on such farm shall pass toll free. — § 30. Sec also '^Jlit/Jnvays," '^Public Works." TOWN REEVE. By the general Municipal Act 12 V., c. 81, § 109 (as i HI' '. i i 832 Tl"; imm y? r V} 'v llh^^?^ M ^pl' !:':|'■ ■ ^ J:^ '-mi k ■. ^■.' SiBt.y''i ;:'i ,' 'J. |{:i#[rr ! ^ ^'l I ill .'.*<: ■' ' » 'IF [.■,t|4*v ife; : ■^ •: r^i^ SB'., •!?i'h' a:tafnfn0* amended by 16 V., c. 181, § 22), town reeves and d( town reeves shall be justices of the peace within their 1 ties. TRAINING. *By 1 v., c. 11, "§ 1, it is enacted that all meptingi assemblies of persons for the purpose of training or dr themselves, or of being trained or drilled to the use of i or for the purpose of practising military exercises, i ments or evolutions, without any lawful authority i doing, shall be and the same are hereby prohibited, as gerous to the peace ; and every person present or attei any such meet^g for the purpose of training and dr any other person '^r.persons to the use of arms, or the tice of military exwcise, movement or^ evolution, or shall train or drill any other person or persons to the i arms, or to the practice of military exercise, movemer evolutions, or who shall aid or assist therein, being le convicted thereof, shall bo liable to be confined in the r penitentiary of this proviuce for any term not exceodint years, or to be punished by fine and imprisonment in ai the common gaols in this province for a period not ex ing two years, M the discretion of the court ; and every son who shall attend or be present at any such meeti assembly, for the purpose of being, or who shall at any meeting or assembly be trained or drilled to the use of or the practice of military exercise, movements or evolu being legally convicted thereof, shall be liable to be pui by fine and imprisonment, not exceeding two years, discretion of the court. § 2, It shall be lawful for an tice of the peace, constable or peace oflScer, or for an son acting in their aid or assistance, to disperse any unlawful meeting or assembly, and to arrest and deta person present at or aiding, assisting or abetting an^ assembly or meeting as aforesaid ; and it shall bo law the justice of the peace who shall arrest any such pen before whom any person so arrested shall be brou commit such person for trial, unless such person sha bail for his appearance at the next assizes, to answer] indictment which may be preferred against him for fence against this act. § 3. This act not to prevti prosecution by indictment or otherwise, for any thij shall be an offence within the meaning of this act, an(j might have been so prosecuted if this act had not beer unless the offender shall have been convicted or ad under this act. § 4, 6, 6, expired. § 7. Justices I 1t1 Q^ran0|iottatfQn« 833 >wn reeves and deputy eace Tnthin their locali- i« id that all mep^mg8and 86 of training or drilling trilled to the use of arms, lilitary exercises, move- r la-wfnl authority for so ereby prohibited, as dan- srson present or attending s of training and drilling use of arms, or the prac- tent orv evolution, or vfho on or persons to the use of Y exercise, movements or ist therein, being legally to be confined in the puWic tny term not exceeding two trid imprisonment in any of ce for a period not exceed- f the court ; and every pet- bntatany such meeting or 2 or -who shall at any sucli or drilled to the use of arms ic movements or evolutions, ih'all be liable to be punished f exceeding two years, at tlie •shall be lawful for any jus- )cace officer, or for any per- ,ance, to disperse any m\ and to arrest and detain anj kistingor abetting any sud fd- and it shall be lawful for U arrest any such person, or '•rested shall be brougk,tt inlesssuch person shall give cxt assizes, to answer to a^j frrcd against him for any of- This act not to prevent anj Ltherwise, for any thing tk Lningofthisact,and.U [if this act had not been mai I been convicted or acciuittcl pired. §7. Justices ID an] district shall have concurrent jurisdiction as justices of the peace with the justices of any other district, in all cases as to the carrying into execution the provisions of this act, and to all matters relating to the preservation of the public peace. § 8. Actions against justices, &c., for any thing done under this act, to be commenced within six months. § 9. The Go- vernor may declare by proclamation this act to be no longer in force in any particular district therein specified. § 10. Prosecutions under this act to be commenced within six calendar months. TRANSPORTATION. / *By 40 G. III., c. 1, § 5, it is enacted, ^at when any per- son shall be convicted of any crime for w^'clihie shall be liable by law to be transported, the court, ^^stead of the sentence of transportation, shall order and adjudge that such person be banished from this provinc^or and during the same num- ber of years or term for wh^p he or she would be liable by law to be transported, an^do remove himself or herself therefrom within a space^f time to be fixed by the court, being not less than twomys, nor more than eight, including the day of sentence. And any person found at large in any part of the province without some lawful excuse, after the time for banishment and before the expiration of the term, shall suffer death, as incases of felony. The punishment of death for this offence was abolished by *3 W. IV., c. 3, and the offence was punishable as any other felony not of a capital nature. *By 7 W. IV., c. 7, § 1, it is enacted, that it shall be law- ful after the passing of this act to sentence offenders to transportation, not only in such cases where by any law now in force or hereafter to be passed, it is expressly provided that such offenders may bo transported, but also in every case in which by the provisions of the act passed in the *40 G. HI., c. 1, the person convicted would be liable to be ban- ished from this province : provided^ th.H no such offender shall, under the authority of this act, be sentenced to be transported except by such court, and in such cases, and for such term of time as the same offender mighty accord- ing to the said act, be banished from this province: and nothing in this act shall be construed to take away or affect the power of sentencing offenders to be ban- ished, according to the act hereinbefore recited, when it shall appear proper to pass such sentence. § 2. All the provisions now in force which arc contained in the said I." I w m m HO G. 105 III., c. 1, respecting persons returning to 834 CtaiieUrrfii. It ^^::i-':-:V{^ >l'= ■ii:!:, 1 r 1. r -■ il:!:^ '!* this province before the expiration of the period for whic they have been banished, or have consented to be banishe according to the terms of any conditional pardon, sha equally extend to any person returning from transportatioi § 3. That the sentence in cases of transportation shall I that the offender shall be transported for a time to be mci tioncd in such sentence, or for life, where that may be lawf and shall in the opinion of the court appear proper, to sue place as the Governor, or person administering the goveri ment of this province, by and with the advice of the execi tive council thereof, shall appoint. § 4. The Governo with the advice of the executive council, is to dctermin upon reference to his Majesty's government in England, i what foreign possession convicts shall be transported froi this province. § 5. Convicts to be removed to the sea-po or place for transportation by judge's warrant, and if an person shall rescue or assist any conA'ict to escape, sue offence shall be punishable in the same manner as if 8uc convict had, at the time it was committed, been confined i a gaol or prison in the custody of the sheriff or gaoler aft( sentence. § 6. Imprisonment after sentence to be reckone as part of the term of transportation. § 8. In case of un diff.culty occurring which may prevent the transportation ( any convict, such convict may be detained in prison for tl remainder of his sentence, ukjess pardoned, in which cai banishment may be made a condition for the residue of tl time. By 4 & 5 v., c. 24, § 25, any person retu^-ning fro transportation or banishment shall be transported for lil and imprisoned previous thereto. By 6 v., c. 5, § 4, any offender liable to be punished transportation may if convicted after this act be punis by imprisonment in the provincial penitentiary for like term. TRAVELLERS. By 18 v., c. 138, § 1, the 16 V., c. 189, and all o acts inconsistent with* this are repealed. § 2. All persi proceeding, going or travelling upon arty highway in Up Canada in charge of any vehicle drawn by one or ni horses or other animal or animals, shall, when meeting other vehicle drawn by one or more horse or horses or ot animal or animals, turn out to the right from the centn the road, allowing to such vehicle so met one-half of road ; and if by reason of the extreme weight of the loa( either of such vehicles the driver thereof shall find it ^vnn^tlUvn, 835 the period forvrhicli sented to be banished Itional pardon, shall IT from transportation, ansportation shall he for a time to be mcn- ere that may bo lawful appear proper, to such linistering the govern- le advice of the execu- § 4. The Governor, uncil, is to determine, srnment in England, to lU be transported from removed to the sea-port e'g -warrant, and if any convict to escape, such same manner as if such nitted, been confined in le sheriff or gaoler after sentence to be reckoned ,n. ^8. In case of uny mi the transportation of etained in prison for the pardoned, in which case )n for the residue of tlie person returning from be transported for life, liable to bo punished by ter this act be punished ial penitentiary for the RS. c. 189, and all other -.eiled. § 2. All persons on any highway m Ipper drawn by one or more shall, when meeting any ■e horse or horses or other right from the centre of . so met one-half of the •eme weight of the load on thereof shall find it m- practicable so to turn out, he shall immediately stop, and if necessary for the safety of the other vehicle and when required so to do, he shall assist the person or persons in charge thereof to pass without damage. § 3. Every person proceeding, going or travelling on any highway as aforesaid or on horseback when overtaken by any vehicle or horseman travelling at greater speed, shall quietly turn out to the right and allow the said vehicle or horseman to pass ; and in the case of one vehicle being overtaken by another, if by reason of the extreme weight of the load on the vehicle so overtaken the driver thereof shall find it impracticable so to turn out, he shall immediately stop, and if necessary for the safety of the other vehicle and when required so to do, shall assist the person or persons in charge thereof to pass without damage. § 4. Every person in charge of any vehicle on any highway aforesaid, or of any horse or other animal used as the means of conveyance, who shall through drunkenness be unable to ride or drive the same with safety to her Majesty's subjects, shall upon conviction thereof be liable to the penal- ties imposed by this act. § 5. All racing or furious driving upon any highway in Upper Canada shall be unlawful, and the person or persons so lacing or furiously driving, or shouting, or using blasphemous or indecent language, shall on conviction thereof be liable to the penalties imposed by this act. § <3. Any person or persons riding or driving any vehicle, horse or other beast of burden over any bridge above the length of thirty feet at any pace faster than a walk shall be liable to the penalties imposed by this act : provided always, that a notice of the regulation hereby imposed shall first be conspicuously placed on such bridge. § 7. Every person travelling on any highway aforesaid with any sled or cariole drawn by one or more horses or mule or mules, shall have at least two bells attached to the harness of such horse or horses or mule or mules. § 8. For any contravention of any of the preceding sections of this act duly proved upon the oath of any credible witness before any justice of the peace having jurisdiction within the county where the offence shall have been committed the offender shall incur a penalty of not less than five shillings nor more than fiyo pounds, in the discretion of the said ll! 1 justice, with costs to be levied by distress and sale of the goods and chattels of the offender ; and in default of pay- ment and distress the offender shall be imprisoned in the common gaol of the county for a period not less than one day and not more than twenty days, at the discretion of the convicting justice : provided always, that the said fine and imprisonment shall be no bar to the recovery of damages by !!", m m.' IMAGE EVALUATION TEST TARGET (MT-S) // ^^ >A^4^ /k^"^^^ 1.0 I.I l^|2^ |2.5 |5o "^~ M^H lis M2.0 IL25 lii.4 1.6 Photographic Sciences Corporation 23 Wnr MAIN STRIIT WnSTIR.N.Y. MSM (716)l7a-4S03 4< fi z 836 Evtmon. the injured party before any court of competent jurisdic § 9. All fines collected under this act shall be paid t treasurer or chamberlain of the township, village, tow city where the offences for which they were imposed committed, to be applied to the general purposes oi same. § 10. All convictions under this act shall be su to appeal. ' TRAVERSE. By 20 V. c. 62. § 2, no person prosecuted shall be en' to traverse or postpone the trial of any indictment 1 against him at any sessions of the peace, session of oyei terminer, or session cf gaol delivery : provided always, if the court upon the application of the person so indi or otherwise, shall be of opinion that the defendant oi fendants ought to be allowed a further time either to pr( for his or their defence, or otherwise, such court may adj ^h-j bail to the next subsequent session upon such ten u bail or otherwise, as to such court shall seem meet mr-.y respite the recognizances of the prosecutor and witn accordingly, and without entering into fresh recognizan TREASON. Treason, according to Lord Coke, is derived from tr to betray ; and trahUon^ by contraction, treason, is betraying itself. — 3 Inst. 4. Treason, generally spok intended not of petit treason, but of high treason on H, H. 316. Of High Treason. By the statute of the 25 Ed. III. st. 5, c. 2, whicl Hale calls a sacred act, and Lord Coke an excellent the king who made it a blessed king, and the parlian blessed parliament, all treasons which had been unc before, were settled ; which act, by the 1 Mar. sess is reinfoiced, and again made the only standard of tr and all statutes, between the said statutes of 25 Ed and 1 Mar., which made any offence high or petit ti- er misprision of treason, are abrogated, so that no off( at this day to be esteemed high treason, unless it be declared to be such by the said statute of the 25 E. made such by some statute since the 1 Mar. The 25 Ed. III., is as follows : — " Whereas divers o have been before this time, in what case treason s laid, and in what not, the king at the request of the and Commons, hath made a declaration in the mai hereinafter foUoweth — that is to say: when a mai ac I'-'u ^ttuum^ 837 M competent jurisdiction, ct shall be paid to tk Ynship, village, town or aey were imposed vrere eneral purposes of the this act shall be subject a. osecuted shall be entitled of any indictment found jeace, session of oyer and y provided always, that if the person so indicted, ;hat the defendant or de- iter time either to prepare [q such court may adjourn session upon such terms as )urt shall seem meet, and le prosecutor and witnesses into fresh recognizances. )N. ike is derived from traUr, on'traction, treason, is ik eason, generally spoken, is it of high treason only.-l reason. [II. St. 5, c. 2, which Lord Coke an excellent act, and king, and the parliament a which had been uncertain bv the 1 Mar. sess. 1, c. 1, e'only standard of treasoii; aid statutes of 25 M. 111. fence high or petit treason, ■ogatcd, so that no offence 13 treason, unless it be eitkr statute of the 25 E. Ill, or i the 1 Mar. u Whereas divers opinions what case treason shall be , at the request of the Lords ■oclaration in the manner as to say: when a man doth compass or imagine the death of bur lord the king, or of our lady his queen, or of their eldest son and heir ; or if a man do violate the king's companion (that is, his wife. — 3 Inst 9), or the king's eldest daughter, unmarried ; or the wife of the king's eldest son 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 comfort in the realm and elsewhere, and thereof be (proveablement, proveably) attainted of open deed by the people of their con- dition ; and if a man counterfeit the kin^ 's great or privy seal, or his money ; and if a man bring falae 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 oflSces." And by the statute 1 Mar. sess. 1, c. 1 (which Lord Hale calls another excellent law), " no act, deed or offence, being byact of parliament made treason, bywords, writing, cipher- ing, deeds, or otherwise, whatsoever, shall be adjudged to be treason, but only such as bo declared by the said statute of the 25 Ed. III." And this, he says, at one blow laid flat all the numerous treasons at any time enacted since the 25 Ed. III.— 1 m H. 308. Lord Coke (3 In»t. 14, 140) seems to bo of opinion, upon the said act of the 25 Ed. III., that bare words are not a sufficient overt act or open deed, whereby to convict a person of treason ; but they arc misprision of treason only. So also Lord Hale seems to think that words, unless put into writing, are not regularly an overt act. — 1 H. H. Ill, 118. But Mr. Hawkins argues the contrary ; and amongst other reasons for his opinion, he observes that to charge a man with speaking treason is unquestionably actionable, which could not be if no words could amount to treason. Also, that as in the case of felony, he who by command or persua- sion 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 not act but by words. —1 Haw., 39. And it has been the constant practice, ever since the revolution at least (1688), where a person, by trea- I sonable discourses, hath manifested a desire to murder or depose the king, to convict him upon such evidence. And inLowick's case. Holt, C. J., declared that express words [were not necessary to convict a man of high treason ; but if, [from the tenor of bis discourse, the jm-y is satisfied ho was '';ii. 'Kl I m M \"t. [tllf i R iM m i^ ft hi:' III :ivi mm ir " *' 838 Snasoti. engaged in a design against the king's life, this is suffi( to convict the prisoner. — Read. Treat. 147. Offences in relation to the coin, in England, are n treason by many statutes, but are scarcely applicable to province. The different treasons relating to the papists, or per exercising the Roman Catholic religion, namely, that ere by 5 Eliz., c. 1, of defending the Pope's jurisdiction in realm ; that created by the 27 Eliz., c. 2, of a popish p tarrying three days in England without taking the oa that created by the 3 Jac. 1., c. 4, of any natural-born ject being reconciled to the See of Rome — have long bee obsolete, and peem indeed to be now virtually repealei the 31 G. III., c. 32. But there is one kind of treason declared by the 23 E c. 1, that is distinct from any treason of the last descripi although the statute was made ostensibly against maint ing the authority of the See of Rome. By § 2, it is enac that all persons who shall pretend to have power, or s by any means put in practice to absolve, persuade, or v draw any subject from his natural obedience to her Maje or to promise any obedience to the See of Rome, or of ' other prince, state or potentate ; or shall do any overt to that intent or purpose, shall be guilty of high trea So by the 3 Jac. 1., c. 4, § 22, if any person shall, ei upon the seas or beyond the seas, or in any other within tlio dominions of his Majesty, his heirs and succcsl put in practice to absolve, persuade, or withdraw, any oj subjects of the king, or of his heirs or successors of the rl of England, from their natural obedience to his Majl his heirs or successors, or to move them, or any of thea promise obedience to any prince, state or potentate— (| such person shall suffer as in cases of high treason. Ar § 3, the like penalty attaches to any one being willini absolved or withdrawn from his allegiance, or who shal| mise obedience to any such prince, state or potentate. In high treason there are no accessories, but all are I cipals, and therefore whatever act or consent will ml man accessory to a felony before the act done, the sat make him a principal in case of high treason. — 3 Inst.i By 7 W. ill., c. 3, no person shall be prosecuted foj treason but within three years after the offence comr except in the case of designing to assassinate the king] son. And by the 31 C. II., c. 2, persons committf high treason shall be indicted the next term, or next otherwise they shall be let to bail, unless it appear] court, upon oath, that the witnesses for the king coi ^vtmnn. 839 be produced in that time ; and in such case, they shall be indicted the second term or assize, or else discharged. By 7 Anne, c. 21, § 11, persons indicted for high treason, or misprision of treason shall have a copy of the indictment, and lists of the jurors and witnesses, delivered to then ten days before the trial ; and by 7 W. III., c. 3, shall have two such counsel as they shall desire assigned to them by the court, who shall have access to them at reasonable times. The judgment for high treason (not relating to the coin) formerly was, that the offender should be carried back to the place from whence he came, and from thence to be drawn to the place of execution, and be there hanged by the neck, and cut down alive, and that his entrails be taken out and burnt before his face, and his head cut off, and his body di- vided into four quarters, and his head and quarters disposed of at the king's pleasure — 2 ffaiv., 443 ; but now, by *3 W. IV., c. 4, the sentence is, that " such person shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until such person be dead, and that after- wards, the body of such person shall be dissected and ana- tomised." In the said judgment is implied forfeiture of lands and goods to the King ; loss of dower ; and corruption of blood. —3 Inst. 211. But after the death of the Pretender (and of his issue), no attainder for treason shall disinherit or pre- judice any heir or other person, other than the offender, during his life.— 7 An. c. 21, § 10 ; 17 G. II. c. 39, § 3. By 4 & 5 v., c. 24, § 18, the jury impannelled to try any person for treason, or felony, shall not be charged to inquire concerning his lands, tenements or goods, nor whether he fled for such treason or felony. Petit Treason. Is where a servant slayeth his master, jpr a wife her hus- band, apd is distinguishable from high treason in this way; high treason can only be committed against the King, petit treason against the King's subjects. — 3 Inst. 20. By *3 W. IV., c. 3, the punishment for petit treason is the same as in cases'of murder. See also 4 & 5 V. c. 27, § 2. Misprision of Treason. Misprision cometh of the French word mespris, which pro- perly signifieth neglect or contempt ; and misprision of treason in legal understanding, signifieth when one knoweth of any treason, though no party or conscnter to it, yet conceals it, and doth not reveal it in convenient time. — 3 Inst. 36 ; 1 iT. H. 371. The judgment of misprision of treason is, to be im- i" mn 840 ^Tteefii— Satilfng»— SQtttfifit. prisoned during life, to forfeit his goods for ever, anc profits of his lands during his life. — 3 Inst. 36. Every i therefore, that knoweth a treason, ought with all spec reveal it to the King, his privy council, or other magist — H. PL 127. But it scemeth that misprision of petit i son is not subject to the judgment of misprision of treason, but only is punishable by fine and imprisonmen in the case of misprision of felony. — 1 H. H. 375. TREES— SAPLINGS— SHRUBS. By stat. 4 & 5 v., c. 25, § 31, if any person shall s or shall cut, break, root up, or otherwise destroy or dan with intent to steal, the whole or any part of any \ sapling or shrub, or any underwood, wheresoever the g may be respectively growing — the stealing of such articl articles, or the injury done being to the amount of a shil at the least — every such oifender, being convicted bofo justice of the peace, shall for every such ofience forfeit pay over and above the value of the article or articles stc or the amount of the injury done such a sum of money, exceeding .£5, as to the justice snail seem meet. By stat. 4 & 5 v., c. 20, § 19, if any person shall un fully and maliciously cut, break, bark, root up, or other destroy or damage the whole or any part of any tree, saj or shrub, or any underwood respectively growing in such park, pleasure ground, garden, orchard or avenue, any ground adjoining or belonging to any dwelling-lij every such offender shall be guilty of a misdemcanor\ being convicted thereof shall be punished accordingly ;] if any person shall unlawfully and maliciously cut, bi root up, or otherwise destroy or damage the whole or| part of any tree, sapling or shrub, or any underwood re lively growing elsqj^'here than in any of the situations inbefore mentioned, every such offender (in case the aij of the injury done shall exceed one pound) shall be of a misdemeanor, and being convicted thereof shall bt ished accordingly. § 20. If any person shall unla\| and maliciously cut, break, bark, root up, or otherwiej troy or damage the whole or any part of any tree, Sif or shrub, or any underwood, wheresoever the same nij respectively growing, the injury done being to the amc one ahilling at the least, every such offender being cor thereof before a justice of the peace shall forfeit ar over and above the amount of the injury done, such money, not exceeding <£!, as to the justices shall seeml See also ''Felling Tree%r Kviuh 841 TRIAL. By 18 v., c. 92, § 1, whenever on the trial of any indict- ment for any felony or misdemeanor there shall appear to be any variance between the statement in such indictment and the evidence in names, dates, places, or other matters not jnatcrial to the merits of the cause, and by the mistatement whereof the person on trial cannot be prejudiced in his defence on such merits, it shall be lawful for the court to order such indictment to be amended according to the proof by some officer of the court or other persons on such terms as to postponing the trial before the same or another jury as the court shall thinft reasonable : and after such amendment *' e trial shall proceed in all respects and with the same con- sequences as to the liability of witnesses to be indicted for perjury and otherwise as if no such variance had occurred : and in case such trial shall be had at niai priu8, the order for amendment shall be indorsed on the indictment and returned therewith ; and in all other cases the amendment shall be endorsed on or filed with the indictment, and returned among the proper records of the court : provided always that when such trial shall be had before a second jury the crown and defendant shall be entitled to the same challenges as before the first jury Avere sworn. § 13. If on the trial of any person charged with felony or misdemeanor the evidence be incomplete and shew an attempt only to commit the same, the jury may find the defendant not guilty of the principal offence, but guilty of the attempt, and defendant shall bo punished accordingly. § 14. If on a trial for larceny it shall appear that the property has been obtained by fraud, not amounting to larceny, then the jury may acquit for the larceny and find the defendant guilty of obtaining such property by false pretences, and he shall be punished accordingly. § 15. If on a trial for misdemeanor it shall appear that the fiicts amount to felonyj the defendant shall not be acquit- ted of such misdemeanor : and no person tried for such misde- meanor shall bo afterwards prosecuted for the felony, unless the court shall think fit in its discretion to discharge the jury, and direct the party to bo indicted for the felony. § 16. If upon the trial of any clerk or Servant for embez- zlement the facts proved amount to larceny, the jury may return as their verdict " not guilty" of the embezzlement, but " guilty" of simple larceny, or of larceny as a clerk or ser- vant, and thereupon the party shall be punished accordingly ; and if upon a trial for larceny the facts proved amount to 106 '•■!■ pill I m I m 842 SlnotganifiteHf ^rtacti^i* embezzlement, the jury may return their verdict accordin lind the party shall be punished for the embezzlement. ' § 17. If upon the trial of two or more persons for joii receiving any property, it shall be proved that one or n received the same, the jury may convict the actual recei only. § 19. If on the trial of any indictment for larcenj shall appear the property was stolen at different times prosecutor shall not bo required to elect upon which he proceed, unless there bo more than three takings, or more than six months elapsed between the first and las such takings ; and in either such case the prosecutor g then elect to proceed for such number ofi takings, notexc ing three, as appears to have taken place within six calei months from the first to the last of such takings. TURNPIKES. By 4 & 5 v., c. 26, § 14, if any person shall unlawl and maliciously throw down, level or otherwise destroy whole or in part, any turnpike gate, or any wall, chain,* post, bar or other fence belonging to any turnpike gat set up or erected to prevent passengers passing by without ing any toll directed to be paid by any act or acts, ordini or ordinances relating thereto, in force in this province any house, building, or weighing engine, erected for better collection, ascertainment or security of any such every such offender shall be guilty of a misdemeanor, being convicted thereof shall be punished accordingly. See also " Highways J" UNORGANISED TRACTS. By the *59 G. III., c. 10, § 1, it is provided that all or and offences committed in any of the tracts of countr parts of this province (Upper Canada), not being withir limits of any describoa county or township may be inqi of and tried within any district of this province, and ma laid and charged to have been committed within the j diction of the court which shall try the same. By the 9 V., c. 41, § 1, the Governor is authorised t( point justices of the peace in all such remote parts of province, and it shall not be necessary for such justic possess any property qualification under the 6 V., c. any other acts. § 3. Such justices shall cause offende be committed to the nearest common gaol. § 4. And ap| to the quarter sessions where by law allowed, shall be ti nearest court of general quarter sessions. heir verdict accordingly, the embezzlement, mort persons for jointly jroved that one or more Qvict the actual receivers lictment for larceny, it a at different times, the elect upon "which he \vill 1 three takings, or that een the first and last of •ase the prosecutor shall )er ofi takings, not excccd- 1 place within six calendar ' such takings. ES. y person shall unlawfully 1 or otherwise destroy, in ,e, or any wall, chain, rail, 5 to any turnpike gate, or ;crs passing by without pay- r any act or acts, ordinance force in this province ; or 5 engine, erected for the : security of any such toll, ty of a misdemeanor^ and anished accordingly. TRACTS. t is provided that all crimes the tracts of country or lada), not being within the township may be inquired this province, and may be »mmitted within the juris- J the same. fvernor is authorised to ap- ll such remote parts of the cessary for such justices to \ under the 6 V., c. 3, or [es shall cause off'ender? to mgaol. §4. And appeals iw allowed, shall be to the jssions. Unuvp. 843 By 16 v., c. 176, the Governor is authorised to form a crovisional judicial district out of certain unorganised tracts idiacent to lakes Superior and Huron, and to authorise the holding of judicial courts (civil and criminal) therein, and aopoint judges. The acts and laws now in force with respect to the holding of courts of quarter sessions, county courts and division courts, and appointment of judicial officers to apply to ^^^^ provisional districts. Justices of the peace therein to have the same powers therein as justices of the neace in Upper Canada had in districts before the passing of jjjg 4 & 5 v., c. 10. But nothing in this act is to effect the *59 G. HI., c. 10. By § 9, it is enacted that any person in- citing Indians or half breeds frequenting or residing in such tracts to the disturbance of the public peace, or to the com- mission of any indictable offence, shall be guilty of felony^ and upon conviction, be sentenced to imprisonment for not more than five years, nor less than two years in the provincial penitentiary, and may be committed to any common gaol in Upper Canada. § 10. Such buildings as may be provided by the commissioners of public works, shall, under the di- rection of the Governor, be the court houses and gaols of such provisional districts. § 11. And the sheriff uf such district mSy summon any of the inhabitants as jurors. By the 20 V., c. 60, § 1, the Governor is authorised to erect such unorganised tracts, and all other parts of Canada not included within the settled limits of any county or district into temporary judicial districts, and to divide each into two or more divisions. § 3. And appoint a stipendiary magis- trate for each district — § 5, who shall be ex officio a justice of the peace therein — § 6, and have the power to appoint con- stables. § 8. Temporary gaols to be provided therein, but offenders to be committed for trial, as heretofore, to the gaol of the proper county in this province. The act also provides for the constitution of a civil court and the disposal of civil matters between party and party. USURY. Usury is the offence of extorting an unreasonable rate of interest for the loan of money, beyond what is allowed by law, and from what is said in the books, it appears that usury was originally considered as an offence at common law. -2 Roll. 800; 3 Imt. 151, 152 ; 6 Com. Dig. ; Umry {A.) ,Anon. Hardr. 410. The rate of legal interest in this province is 6 per cent, by the *51 G. III. c. 9, § 6 ; which also enacts, that all bonds, contracts and assurances whatso-, ever, whereby a greater rate of interest shall be reserved t ■ti^' III 844 Vufivunt^. and taken, shall be utterly void ; and every person who either directly or indirectly take, accept, and receive a hi interest, shall forfeit and lose for every such offence t of the value of the moneys, wares, merchandizes and ( things lent or bargained for, to be recovered by actio debt in the Court of King's Bench in this province ; a xn of such forfeiture to the use of the province, and the < moiety to the informer. By 16 v., c. 80, § 1, the 6th section of the above i repealed. § 2. Penalties for usury abolished. § 3. tracts and securities to be void only as regards any exc( interest above six per cent. § 4. This act not to exter banking institutions, insurance companies, or to associa heretofore authorised to borrow or lend money at a h rate of interest. VAGRANTS. 1. Idle and Disorderly Persons. By 7 J. c. 4, idle and disorderly persons shall be se: the house of correction ; and by 17 G. II. c. 5, idle anc orderly person are thus '^.escribed inter alia : — 1. All pe: who, not having wherev.ith to maintain themselves, idle without employment, and refuse to work for the and common wages given to other labourers in the like in the paribhes or places where they are. 2. All pe going about from door to door, or placing thcmseh streets, highways, or passages, to beg or gather alms parishes or places where they dwell — all these shall be ed idle and disorderly persons. And it shall bo law one justice to commit such offenders (being convicted tl before him, by his own view, or confession, or oatli witness) to the house of correction, to be kept to hard li not exceeding one month. And any person may apprc and carry before a justice, any such persons going from door to door, or placing themselves in streets, ways, or passages, to beg alms in the parishes or place they dwell, and if they shall resist or escape from the apprehending them, they shall be punished as rogu vagabonds. 2. Rogues and Vagabonds. By 17 G. II., c. 5, the following persons shall be rogues and vagabonds : — 1. All persons going about I tent gatherers, or (gatherers of alms, under pretences by fire, or other casualty. 2. Persons going about as tors for prisons, gaols or hospitals. 3. Fencers. 4. Vuwcmt^. 846 Vagabonds. ^ing persons shall be deemed 1 persons going about as pa- ilms, under pretences of k ersons going about as collec- ;als. 3. Fencers. 4. Beat- vyards. 5. Common players, not authorised by law. 6. Minstrels. 7. Jugglers. 8. Gypsies. 9. Or pretending to have skill in physiognomy, palmestry, or like crafty science, or to tell fortunes. 10. Or using any subtle craft to deceive and impose on any of his Majesty's subjects. 11. Or playing or betting at any unlawful games or plays. 12. AH persons wandering abroad, and lodging in ale-houses, barns, out-houses, or in the open air, not giving a good ac- count of themselves. 13. All persons wandering abroad and begging, pretendi' g to be soldiers, mariners, or seafar- ing men. 14. Or pretending to go to work in harvest. 15. And all other persons wandering abroad and begging, shall 1)6 deemed rogues and vagabonds. Incorrigible Rogues are thus described by 17 G: II. c. 5. 1. All end-gatherers offending against the statute of 13 G., c. 23, being convicted of such offence. 2. All persons appre- hended as rogues and vagabonds, and escaping from the per- sons who apprehend 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 of the said offences : all these shall be deemed incorrigible rogues. 4. Apprehending Rogues. If any person shall be found offending against this act, the constable shall apprehend him, and convey, or cause him to bo conveyed, to a justice of the peace — 17 G. II., c. 6, § 5, under the penalty of 10s. 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. III., c. 11) till the next sessions, or for any less time, as such justice shall think proper. — 17 G. II., 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 a vagabond, 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 exceed- ing two years, nor less than six months, and during his con t 1 '[r ;i i\ i ■> li ^.i 11; fcf^ 1 1**^. fc I ' St f ■ p'fii J ' f< I ,3 • llTi h' .f 111 I' I* fit ji '''''ii I'i ^ J ^1- >iit. < I 846 UegetittPUfit* finement to be whipped in such a manner, and at such tin and places as they shall think fit. And if such incorrigi rogue, so ordered by the sessions to be detained in the ho of correction, shall break out, or make his escape, or sli offend again in like manner, he shall be guilty of felony, j be transported for seven years. —17 G. II., c. 5, § 7, 8, And by 13 and 14 C. II., c. 12, the justices in session n transport such rogues, vagabonds, and sturdy beggars shall bo duly convicted and adjudged to be incorrigible.- 28. 6. Penalty for Lodging Vagrants. If any person shall knowingly permit any rogue, va bond, or incorrigible rogue, to lodge or take shelter in house, barn, or other out-houso or building, and shall apprehend and carry him before a justice, or give notice the constable to do so, he shall forfeit not exceeding 4i nor less than 10s., upon conviction before one justice, 1 to the informer, and half to the poor, by distress and si --17 G. II., c. 5, § 23. 6. G-eneral Penalty for hindering the execution of t Vagrant Act. If any constables or other officer, or governor of any ho of correction, shall bo defective in his duty ; or if any per shall hinder the execution of this act, or shall rescue any ] son apprehended, or aid therein, he shall, on conviction fore one justice, forfeit not exceeding X5, nor less than 1 and in default, be committed to the house of correction, \ hard labour, not exceeding two months. — 17 G. II., c. 5, § VEGETABLES. By 4 & 5 V.> c. 25, § 34, if any person shall steal, or s destroy, or damage with intent to steal, any tree, sapl shrub, bush, plant, ro/ot, fruit or vegetable production, gi ing in any garden, orchard, nursery-ground, hot-house, gn house, or conservatory, every such oflFender, being convic thereof before a justice of the peace, shall forfeit and | over and above the value of the article or articles so sto or the amount of the injury done, such sum of money, not ceeding £5, as to the justice shall seem meet ; and if person so convicted shall afterwards commit any of the oflfences, such offender shall be deemed guilty of felony, being convicted thereof shall be liable to be punished a the case of simple larcenyc § 35. If any person shall s or shall destroy or damage with intent to steal, any cultiv root or plant used for the food of man or beast, or for m cine, or for dyeing, or for or in the courao of any mam 9* ixier, and at such times Lnd if such incorrigibl . e detained in the house r»ke his escape, or shall he gnilty of felcny, and 7 G. II., c. 5, § 7, 8, 9. justices in session may cind sturdy beggars, as 3d to be incorrigible.—^ J Vagrants, ermit any rogue, vaga- e or take shelter in his building, and shall not justice, or give notice to feit not exceeding 408., I btifore one justice, half »or, by distress and sale. ig the execution of th id. , or governor of any house his duty ; or if any person bt, or shall rescue anyper- le shall, on conviction bc- ng JfiS, nor less than 10s., house of correction, with ths.-17G.II.,c.5,§22. ES. person shall steal, or shall I steal, any tree, sapling, igetable production, gro^Y- ground, hot-house, green- offender, being convicted ace, shall forfeit and pay, rticle or articles so stolen, uch sum of money, not ex- II seem meet ; and if any is commit any of the said med guilty of felony, and iable to be punished as in If any person shall steal, fent to steal, any cultivated tan or beast, or for medi- couTBo of any manufac- Wiuttciinu 847 ture, and growing in any land open or enclosed, not being a garden or nursery ground, every such offender, being con- victed thereof bef^ re a justice of the peace, shall forfeit and pay over and above the value of the article or articles stolen, or the amount of the injury done, such sum of money not ex- ceeding 203. as to the justice shall seem meet ; and in default of payment thereof, together with the costs if ordered, shall be committed to the house of correction for any term not ex- ceeding one calendar month, unless payment bo sooner made. By 10 & 11 v., c. 4, S 7, the attempt to set fire to any stock to any vegetable produce of such kind, and with such in- tent that if any offence was complete the offender would be cuilty of felony, &c., is made felony and punishable -^.ccord- For forms of proceeding see title " Summary Conviction." VESSELS. By 4 & 5 v., c. 25, § 21, if any person shall stoal any ijoods or merchandise in any vessel, barge or boa^ of any de- scription whatsoever, in any port of entry or Uischar^c, or upon any nav7;^able river or canal, or in any creek beloi.,ing to or commuiiioating therewith, or from any dock, wharf, or quny adjacent, such offender shall upon conviction be liable to any of the punishments which the court may award, us set forth in the act. See also ^'■Navigations'' '''•Wreck.'" WAREHOUSE. By 4 & 5 c. 25, § 20, if any person shall break and enter any shop, warehouse, or counting house and steal therein any chattel, money, or valuable security, every suchoffender being convicted thereof shall be liable to any of the punish- ments which the court may award, as therein mentioned. See title " Punishment.'* WAREHOUSE-MAN. By 12 v., c. 12, § 1, any warehouse-man, forwarder, car- rier, agent or clerk, giving a false receipt, with intent to defraud, shall bo guilty of a misdemeanor. See further " False Receipts." WARRANT. A warrant is a • precept under the hand and seal of a magistrate or other public functionary, directed to some officer, either to arrest an offender or to seize or distrain upon his goods, to be dealt with respectively in either case accord- ing to law. A warrant can only be executed by some one or ■i-A 848 Witis^tu unli S^t^^nvtu. ' ' It M l' f ' i i i ii ' l"4...,i ml ' -ly more of the persons to whom it is directed, unless in( be directed to the sheriff, who may either by parol precept in writing, authorise an officer, sworn and knc execute it, but the sheriff cannot empower any other without a precept in writing. — 1 Haw. c. 60, § 11. warrant direct the officer to cause the party complaine come before some justice of the peace, to find sun keeping the peace, the officer before he makes any ought first to require the party to go with him, an sureties according to the purport of the warrant, and refuses, the officer may carry him by force before the trate, or confine him in some gaol till he can be conven brought before the magistrate. — Ibid. If the ^ specially direct that the party shall be brought befoi justice who issued it, the officer ought not to carry him any other ; but if the warrant be general, to bring him any justice, the officer has then the election to brin before any justice he pleases, and may carry him to for refusing to obey the warrant. — Ibid. By 16 v., c. 179, § 8, any warrant or search warraii be granted or issued on a Sunday as well as on any day. In what cases, and in what form a warrant may be gi for the apprehension of a party, see ^^ Arrest," \ ^'Justices of the Peace.*' For what cause, and in what form a warrant of ment may be issued, see title "Commitment." And see further, "Distress," "Search Warrant "Habeas Corpus." WEIGHTS AND MEASURES. C( By the *4 G. IV., c. 16, the secretary shall furn district with a true standard. <§, 6. And all store-keepers, shop-keepers, millers, di butchers, bakers, hucksters, and other trading perso shall have in their possession any weights or ma whereby they sell or buy arti«les, other than such been examined and stamped as aforesaid, shall, upo convicted before any one justice, on the oath of one forfeit £2 for every offence, to be levied with rcji costs, by distress and sale, and in default the offcn be committed to the common gaol for any term not ing one month. The other sections of this act are by the 12 V., c. 85. • By the 3 V., c. 17, § 3, information of the upon oath to bo prima facie evidence for a convicti directed, unless indeed it ay either by parol or by icer, sworn and kno^n, to mpower any other person ^Wc. 60, §11. Iftk the party complained of to peace, to find surety fov ore he makes any arrest, to go with him, and find of the warrant, and if lie by force before the magis- till he can be conveniently Ibid. If the warrant lall be brought before the ight not to carry him before general, to bring him before the election to bring him ad may carry him to prison , — Ibid. rrant or search warrant may lay as well as on any other rm a warrant may be granted airty, see ''Arrest," titles form a warrant of commit- Commitment." " " Search Warrant," and MEASURES. secretary shall furnish each lop-kccpcrs, millers, distillers. d other trading persons, who I any weights or uieasure?, Ics, other than such as have aforesaid, shall, upon beiu? fe on the oath of one witness. to be levied with rcasonable in default the offender shall Kaol for any term not cxccei. ctions of this act arc repeaW information of the inspector | Hdence for a conviction. Witiu^tn mitt Mtuunvtn^ 849 By 12 v., c. 85, § 2, the inspectors of licenses (a) are to be also inspectors of weights and measures within their respective districts ; § 3, and to stamp, if found true, all weights and measures submitted to them ; § 4. to attend for that purpose at such times and places as the magistrates in quarter sessions shall appoint; and every storekeeper, shopkeeper, miller, distiller, butcher, baker, huckster, or other trading person, wharfinger or forwarder, who shall two months after the appointment of an inspector therefor, use any weight or measure not duly stamped according to law, or which shair be found light or otherwise unjust, shall, on conviction, forfeit not more than £5, nor less than £2, to be recovered under the next section, and every such light or unjust weight or measure so used, shall, on being discovered by any such in- spector, be seized, and on conviction of the offender be forfeited and broken up by the inspector. § 5. It shall be lawful for every such inspector at all reasonable times, to enter any shop, store, warehouse, stall, yard, or place whatsoever with- in his division, where any commodity shall be bought, sold or exchanged, weighed, exposed, or kept for sale, or weighed or for conveyance or carriage, and there to examine all weights, measures, steelyards, or other weighing machines, and to compare and try the same with the copies of the standard weights or measures provided by law ; and if any shall be found unstamped or light, or otherwise unjust, the same shall be liable to be seized and forfeited, and the person in possession of the same shall, on conviction, forfeit a sum not exceeding X2 for the first, and £5 for every subsequent offence, to be recovered with reasonable costs before any justice of the the peace on the oath of the inspector, or any other credible witness, and if not forthwith paid, to be levied by distress and sale, and in default of distress the offender shall bo committed to the common gaol of the district for any term not exceeding one month ; penalties under this act to belong to the crown, and be paid to the inspector, to be accounted for with other public moneys ; and any person who shall have in possession a steelyard or other weighing machine, found on examination to be incorrect or unjust, or shall neglect or refuse to produce for examination when required all weights, measures, steelyards, or other weighing machines in his possession, or shall obstruct or hinder such examination, shall be liable to a like penalty, to be recovered and applied r\s aforesaid ; but no such penalty (a) Repealed by 18 V., c. 135, and the municipal council authorised to tppoint inspectors. 107 850 Zi2ief0iytfii anu M^mutt^. shall be incurred until two months at least after a stan of weights and measures shall have been received by th specter. § 6. Forging or counterfeiting any stamp or i used for stamping or making weights or measures, to misdemeanor, and the offender liable to fine and itnpr ment not to exceed three calendar months ; and if any pe shall knowingly sell, alter, dispose of, or expose to sale, weight or measure, with such forged stamp or mark thei shall for every such offence forfeit, on conviction, a sua exceeding ^10, nor less than 40s. ; and the same shal forfeited and broken up by the inspector. § 7. If an specter shall stamp or mark any weight or measure, not compared and verified by the standard weights and meas or shall be guilty of any breach of duty under this ac shall forfeit on conviction a sum not exceeding £5, i recovered as aforesaid. ^ 8. Inspector's fee for c weight or measure marked or stamped, to be 6d. and no n § 9. In cases of more than one inspector for the dis standard weights and measures to be lodged with sue spector as the magistrate in quarter sessions may direc 10. Inspectors to give one month's notice in a newsj from time to time, and at least once a year, of the days places to be appointed by the magistrates in quarter sess when he will attend to examine weights and measure 11. Former inspectors to hand over to the inspectors i this act all and every standard weight and measure, bal stamp, brand, and other machine, or copy thereof in custody, under a penalty of £5, to be recovered as afore § 12. Whenever any municipal body shall appoint an insj for any city, town, or incorporated village, such insf may apply to the inspector under the provisions of thi for the district, &c., within which such city, &c., shall be si to adjust a copy of any of the standard weights and men for the use of such inspector, and upon producing to su spector such weights and measures as shall be require such city, &c., it shall be the duty of such inspector car to compare and adjust, and to seal, stamp, or mark the as provided by latv^, for the like fees as in other cases thereupon the powers, duty, and liabilities of the insp< appointed under this act shall cease, as to such city, &c devolve upon the inspector thereof. §12. In case of re: from office, resignation or removal from the place, su spector to deliver over to his successor in office all b stampS) and standard weights and measures in his possci and in case of death his representatives to do so ; and ii of neglect or refusal, in addition to the penaliiea hercinl 8''iiMi ''^ ' a at^ ||lS| ■)l'§9y 11 '^'«f il It miiu. 851 provided, such successor may maintain an action on the case against the party or parties, and recover double the value of such standards, with double costs of suit; one moiety to the plaintiff, the other to be applied in supplying such standards as may be required. § 14. Appeal given in cases where penalty inflicted shall exceed 40s. to the next general quarter sessions, holden not less than twelve days after conviction, in like manner as provided with regard to appeals, by the 33and34§§ofthe4and5V., c. 26. ^ WIFE. The wife of a man (in legal language a feme covert) is so much favoured in law on account of the matrimonial subjec- tion due from her to her husband, that if she commit theft, or even a burglary, by his coercion, or merely in his com- pany (when the law presumes a coercion), she is held to be exempt from punishment; being considered as acting in either of these instances by compulsion, and not of her own free will. This doctrine. Sir William 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, docs not amount to more than a prima facie presumption of law, and therefore if it appear in evidence that the wife was not drawn to the off'ence by the husband, but that she was in fact the principal instiga- tor 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 offeree, she is then an accessory before the fact, in the same marner as if she had been sole.— 1 Hale, 516 ; 2 Haiv., 29, § 34. There are also some exceptions to the impunity of the wife in committing crimes, even though acting under the coercion of her husband, by reason of the heinousness of the offence committed. Thus, in treason, no plea of coverture shall excuse the wife. — 4 Bl. Com. 29. In murder also, and offences of the like description, which arc prohibited by the law of nature, and are mala in se, the wife is held a respon- sible agent notwithstanding the coercion of her husband. In inferior misdemeanors, there is also ".nother exception as to the responsibility of the wife, for she may be indicted and punished with her husband for keeping a brothel ; this being considered to be an offence touching the domestic economy of the house, in which the wife has necessarily a principal share, and of that description, moreover, which the law pre- sumes to be generally conducted by the intrigues of the female sex. — 1 Eatv., c. 1, § 12. But u prosecution for a 852 WiiU. conspiracy is not maintainable against husband and only, because they are esteemed but one person in 1 and in order to support an indictment for conspli there must be a conspiring between two persons at least. — 1 Haw., c. 72, § 8. In all cases, however, w] the wife offends alone, without the company or coer of her husband, she is then as much responsible her offence as any feme sole. — 4 Bl. Com. 29. whenever she commits an offence in the absence of her band, it will be no excuse that she committed it by his or — R. V. Mqrris, R. & R. 270. If a woman receives st goods into her house, knowing them to be so, or lock t up in her chest or chamber, without the knowledge of husband, she alone may be indicted. But if the ignon of the husband is not satisfactorily proved, as by his tinned absence from home, or by other circumstances, law will, in most cases, impute the receiving to him, and n( the wife. — Dalt. c. 357, p. 353. Although the husband be indicted as an accessory for receiving by the wife, ki ing her to have committed a felony, yet tho wife shall be deemed an accessory for receiving by her husband. Nci is the wife affected by receiving jointly with her liusbai third person, who has committed felony ; .except in cas treason. But if she alone, in the absence of her liusb and without his knowledge, knowingly receive a felon, may then be indicted as an accessory, and not the husb —1 Hale, 47, 621 ; 1 Haw., c. 1, § 10. A wife cannc convicted of felony in stealing her husband's goods. \] the wife take the goods of her husband and deliver the B., who elopes with her and the goods, as her adulterer, will then be felony in B.—Dalt. c. 10, PL 2G8 ; R. v. To[ Ry. tf- M. 243. Husband and wife being but one perse law, and their interest absolutely the same, they cannot evidence for the benefit of each other. — Qilh. E\\ 1111 ; even by the consent of the other party. — Cas. Temp, h 264 ; neither can they be witnesses against cacli othoi Phil. 84 ; except in cases of personal injury to tlie when she is, on the principle of humanity and justice as as necessity, admitted as a witness against her husband where the husband is indicted for shooting at her, or atte ing to poison her, or for assaulting and beating her,— 633, B. N. P. 287 ; R. v. Whitehouse, 2 Russ. GOO ; Jagger, lb. But in these cases, the wife ought only admitted to prove facts which cannot be proved by any witness. — Per Holrogd, J., 2 Russ. 606. So her dyin clarations arc admissible against him, in the case of mu — R. V. Woodcock, I Leach. 500 ; R. v. John, Ih. oO 1 '^H% II 2i2a^unf0sefii. 853 rainst husband and \yife but one person in law; lictment for conspiracy reen two persons at^the ill cases, however, where the company or coercion 8 much responsible for -4 Bl. Com. 29. And n the absence of her hus- committed it by his order, f a woman receives stolen lem to be so, or lock them out the knowledge of her ;ed. But if the ignorance ly proved, as by his con- r other circumstances, the receiving to him, and not to Although the husband may iceiving by the Avife, know- )ny, yet the wife shall not ig by her husband. Neither jointly Avith her husband a felony ; .except in case of 5 absence of her husband, svingly receive a felon, she sory, and not the husband. ,, § 10. A wife cannot be • husband's goods. But if sband and deliver them to oods, as her adulterer, this 10, F12(jH; 11. v.ToIfree, ife being but one person in the same, they cannot give thcr.—Gilb. Ev. 119 ; not party. — Ca». Temp. Hani 5CS against each other,—] rsonal injury to the Avifo. iimanity and justice as ^Yell s against her husband ; as shooting at her, or attempt- and beating her. — 1 Str. houaey 2 R1188. 600 ; 7^ i\ the wife ought only to he not be proved by any other 88. GOG. So lier dying de- him, in the case of murder. R. V. John, lb. o04, n. g (a). So the wife is always permitted to swear the peace -'■ 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. — M. V. perry, cit. in B. v. Serjeant, 1 By. ^ M. 354. And the same rules of necessity which admit the wife to give evidence against her husband, will also permit the husband to be a witness against the w:fe, in cases of personal injury, — such as murder, assault, and surety of the peace where any vio- lence is threatened by the wife against the husband. There is a foolish notion prevalent with the lower orders in Eng- land that if a man sell his wife with a halter round her neck, in market overt, this operates as a divorce, " a vinculo ma- trimonii," and that both buyer and seller may lawfully make such a bargain. Such a brutal act is, however, grossly ille- gal and indictable at common law as a misdemeanor. WILLS. See " Registry Office." WINES. See " Spirituous Liquors J" 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 jus- tice may commit him — 2 Hale, 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 )ier. — 3 31. J- S. 1. But though a person may be committed for not entering into recognizance to pro- secute and give evidence, yet the party shall not be commit- ted for his inability to find a person to join in such recog- nizance to prosecute and give evidence ; his own recognizance is all that can or ought to be required. — Arch. Com. 12. If the witness, after being served with a subpama, neglect to appear, an application may be made in the Court of King's Bench for an attachment against him. — R. v. Ring, 8 T. R. 585 ; 1 Star. Ev. 119. A witness, whether bound over or subpoenaed, or attending voluntarily for the bona fide pur- pose of giving evidence, is privileged from arrest, eundo, redeundo et morando, if no more than a necessary time is occupied by him upon either of those occasion. — 1. H. B. 636 ; 2 Bl. 1118. In allowing witnesses time sufficient for these purposes, the courts are always disposed to be liberal. —1 Phil. Ev. 4. If a witness, under such circumstances, 854 Wiitmunw. ft: „ ;,! I Si V be arrested, the court out of which the subpoena issueO the judge of the court in which the cause has been ti will, upon application, order him to be discharged ; but privilege of a witness does not extend to arrest by his for the purpose of surrender ; for he is supposed to b their custody even while he is attending as a witness. — J Li/ne, 3. Star. Hep. 182. *By Stat. 3 Wm. IV. c. 2 § 8, it is enacted, that wher attendance of any person in gaol or upon the limits, sha required in court, at the assizes, the court shall and ma its discretion, order the sheriff, gaoler, or other person ing the custody of such prisoner, to deliver him to person named in such order to receive him, which pe shall thereupon instantly convey such prisoner to the j where the court issuing such order shall be sitting, to rec and obey such further order as to the said court shall f meet, provided that no prisoner for debt or damage removed out of the district. By 4 & 5 v., c. 24, c. 22, any person convicted of demeanor (except perjury) after sentence endured may competent witness. By 9 v., c. 35, witnesses in criminal casri may be moned by subpoena from any part of the pro' nee. To dissuade or endeavour to dissuade a witness from g evidence against a person indicted, is an offence at con law, though the persuasion should not succeed, and for \ the party may be indicted as for a misdemeanor. — 1 P. a, c. 21, § 15; B. V. Lawley, 2 Sir. 904. Payment of the Expenses of Witnesses. In civil cases a witness is not bound to attend unles reasonable expenses be previously tendered to him, b criminal cases he is bound to attend unconditional! Haw., c. 46, § 173. By 14 &; 15 V., c. 119, in all cases of summary pro ings where persons are supoenaed to give evidence justices in cases of assault, trespass, or misdemcT^ii-, witness shall be entitled, in the discretion of *- to receive at the rate of two shillings and six j.« .-v day's attendance, where the distance travelied ir -rjvi and returning from such adjudication does not uxcee( miles ; and tiiree pence for each mile above ten. § 6. cases above the degree of misdemeanor witnesses shal be allowed any thing for their attendance or travel, under the order of the court before which the trial shall b( By 20 Vic. c. 29 (act for the Summary Trial of Ju Offenders), § 16, justices of the peace before whom the IT the subpoena issued, or e cause has been tried, be discharged ; but this jnd to arrest by his bail, he is supposed to be in iding as a witness. — Exp, , is enacted, that when the r upon the limits, shall be e court shall and may in )ler, or other person hav- ', to deliver him to the jceive him, which person Qch prisoner to the place shall be sitting, to receive the said court shall seem for debt or damages be ' person convicted of mis- lentence endured may be a riminal casrs may be sum- b of the pro' nee. iiuade a witness from giving d, is an offence at common . not succeed, and for which a misdemeanor.— 1 Haw. ', 2 Str. 904. ises of Witnesses. bound to attend unless hi? J tendered to him, but in attend unconditionally.— 2 cases of summary procecd- d to give evidence before pass, or misdenao-^^-i- au'jh liscretion of*- .«. .jii^irate, ngs and six j.i .a .-or every ance travelied ir -wing to ation does not exceed ten nile above ten. § 6. In all neanor witnesses shall not ;tendance or travel, except i which the trial shall be had. Summary Trial of Juvenile eace before whom the party WLitntuntu. 855 shall be tried, may order payment to the prosecutor and ffitnessefl of their reasonable expenses. See title " Juvenile Offenders," p. 497. For the mode of procuring the attendance of witnesses unon any examination or hearing, see " Indictable Offences" «' Summary Conviction.' ' Form of an Indictment for dusuadinf/ a Witness to (five evidence. (C KITTY.) County of » \ The jurors, &c. That on, &c., a certain to wit. \ writ of our lady the Q-ueen, called a subpcena ad testifcandum, 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 custos rotuhrum, in and for the same county, which said writ was directed to E. F. and G. H. by which said writ our said lady the dueen com- manded, &c. (recite the writ). And the jurors, &c., do further present that a copy of the said writ was on, &c. at &c. duly served on the said J. K. who then and there had notice to anpear 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 upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury, on the said bill of indict- ment so to be preferred against the said A. B. as aforesaid ; and that at the sessions of the peace, holdon by adjournment at aforesaid, in and for the said county, on, &c. aforesaid, such bill of indictment was preferred against the said A. B. to and before a certain grand jury, tlien and there assembled in that behalf. And the jurors, &c. do furtlicr present that A. B., late of, &c., being an evil disposed person, and contriving and intending to obstruct and impede the due course of justice on, &c. unlawfully and unjustly dissuaded, liindered, and pre- vented, the said J. K. from appearing before the said justices at the said sessions of 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 obstruction, hindrance, and delay of public justice, in contempt, &c. to the evil, &c. and against the peace, &c. And the jurors aforesaid, upon their oath aforesaid, do further present, that on the said, &c., a certain other writ of our said lady the Clueen had duly issued, directed to the said E. F. and G. H., by which said last mentioned writ our said lady the dueen commanded the said E. F. and G. H. that, &c. (recite the writ). And the jurors, &c. do further present, that the evidence of the said J. K. at the time of issuing the said last mentioned writ, and from thence until and upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury, in the said bill of in- 856 2l8%ooll* dictinent, to be preferred against the said A. B. us afoi And the jurors, &c., do further present, that the said being an evil disposed person, «&c. (^same as first count s «* endeavoured to dissuade," &c, and omitting the alU between the brackets.) WOLVES. By *6 W. IV., c. 29, the *49 G. III., c. 3, is rep § 2. Any person who shall produce the head of a woll the ears on before any justice of the peace, acting fc district in this province, and shall make oath or affirm as the case may be, or otherwise prove to the satisfact the justice that the wolf was killed within that distr within one mile of an actual settlement in the district be entitled to receive of the treasurer of the district th of £1 10s. as a bounty for the same. § 4. The justice whom the head of the wolf shall be produced having fit off the ears thereof, shall give the person a certificat the fact has been proved to his satisfaction, which cert shall authorise the person holding the same to demani receive from the treasurer the said bounty, § 4, who pay the same on presenting such certificate, provide funds of the district in hand shall enable him, oth( out of the first moneys which shall come into his 1 § .5. Annual expenses for building a court-house and and keeping the same in repair, the fees of the el the peace, and salary of the gaoler, the maintc of prisoners, and wages of members of Assembly, to b paid. § 6. When the funds of the district are insufi such certificate shall be a lawful tender towards any d ' rate or assessment, wherein such wolf shall have bee troyed. § 7. This act to bo in force for four years. Continued by different statutes and lastly by 20 V., WOMEN. If a woman, quick with child, be condemned eitli treason or felony, she may allege her being with child, in to get the execution respited, and thereupon the shcrif bo commanded to take her into a private room and imi a jury of matrons, to try and examine whether she be with child or not ; and if they find her quick with chi execution shall bo respited till her delivery. But a cannot demand such respite of execution by reason being quick with child more than once. — 2 ffaw. 464. See also ^^Abductioriy" ^^ Rape." WOOD. By 4 & 5 v., c. 25, § 33, if the whole or any part c WiovUmtn. 867 tree, sapling or shrub, or any underwood, or any live or dead fence, or any post, pale, rail or stile, or gate, or any part thereof, being of the value of two shillings at the least, shall by virtue of a search warrant, to be granted as in the said act is mentioned, bo found in the possession of any person, or on the premises of any person with his knowledge ; and guch person being carried before a justice of the peace, shall not satisfy the justice that ho came lawfully by the same, he shall on conviction by the justice, forfeit and pay over and above the value of the article or articles so found, any sura not exceeding £2. § 55. Any person found wommitting any offence punishable by this act, either upon indictment or iummary conviction^ may be immediately apprehended with- out a warrant by any peace officer, or by the owner of the property, or by the servant of any person authorised by such ownei, and forthwith taken before some neighbouring justice, to be dealt with according to law ; and if any credible witness shall prove on oath before a justice that there is reasonable cause to suspect that any property whatsoever, with respect to which any such off nee shall have been committed, is in any dwelling-house, outhouse, garden, yard, croft or other place or places, the justice may grant a search warrant, as in the case of stolen goods. WORKMEN. By Stat. 2 & 3 Ed. VI., c. 15, § 1, if any artificers, workmen, or labourers 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 enter- prise 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 con- spiring, covenanting, swearing or offending, being lawfully convicted thereof, by witness, confession or otherwise, shall forfeit, for the first offence, £10 to the King, if he have suffi- cient to pay the same, and do also pay the same within six days next after his conviction ; or else shall suffer for the same offence twenty days' imprisonment, and shall have only bread and water for his sustenance : and for the second offence, shall forfeit X20 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 ; (a) and for the third offence, shall forfeit X40 to the King, if he have sufficient to pay the ,e whole or any part of any (a) Puniahment of the pillory abolisbed by 4 & 5 V., o. 24, { 31. 108 858 WitttU. same, and also do pay tho same within six days next t his conviction, or else shall sit on the pillory and lose of his cars ; and also shall, at all times after that, bo tt as a man infamous, and his sayings, depositions on oath, to be credited at any time, in matter of judgment. Justices of the assize, justices of tho peace, &c., at all every their sessions and courts, shall have full power authority to inquire, hear and determine all and sing such offences committed against this statute, and to pui or cause to be punished, the offenders, according to statute. Any one workman may refuse to work, till 1 paid the price he pleases to fix upon his otvn labour ; h two or more enter into an engagement of this kind, thej guilty of a conspiracy, and may be prosecuted by an in raent, or an information. — 4 Bl. Com. p. 160. By 4 & 5 v., c. 27, § 25 in case of any assault coram in pursuance of any consp'vacy to raise the rate of wi the courts may sentence the offender to bo imprisons any term not exceeding two y«a.rs, and may also (if it so think fit) fine the offender, and require him to find sur for keeping the peace. See also titles '■^ Conspiracy ,' and '■^Master and Serve WRECK. By 4 & 5 v., c. 25, § 22, whosoever shall plunder or any part of any ship or vessel which shall be in distrci wrecked, stranded or cast on shore, or any goods, mcr dizc or articles of any kind belonging to such ship or v and be convicted thereof, shall be liable at the discrcti the court to be imprisoned at hard labor in the prov penitentiary for any term not exceeding fourteen year less than seven years, or to be imprisoned in any other j or place of confinement for any term not exceeding years. § 23. If any goods, merchandize or other art belonging to any ship or vessel in distress or wrecked, st cd or cast on shore, as aforesaid, shall, by virtue of a s warrant to be granted as hereinafter mentioned, be foii the possession of any person, or on the premises of an; son with his knowledge, and such person being carried \ a justice of tho peace shall not satisfy the justice tl came lawfully by the same, then the same shall, by or( the justice, be forthwith delivered over to or for the the rightful owner thereof ; and the offender on conv before tho justice, shall forfeit and pay such sum of r not exceeding i620, as to the justice shall seem meet. If any person shall offer or expose for sale any mercha WiVttU. 859 nd '■^Master and Servant" or other articles which shall have been unlawfully taken, or reasonably suspected so to have been, from any ship or vessel in distress or wrecked, stranded or cast on shore, as aforesaid, in any such case any person to whom the same shall be offered for sale, or any officer of the customs or peace officer, may lawfully seize the same, and shall with all convenient speed carry the same, or give notice of such seizure, to some justice of the peace ; and if the person who shall have offered the same for sale, being duly summoned iby such justice, shall not appear and satisfy the justice that he came lawfully thereby, then the same shall be forthwith delivered over by order of the justice :o the rightful owner thereof, upon payment of a reasonable toward (to be ascer- tained by the justice) to the person T*ho seized the same ; and the offender upon conviction shuil pay not exceeding X20, as to the justice shall seem meet. By statute 4 & 5 V., c. 2G, § 8, whosoever shall unlawfully exhibit any fivlsc light or signal with intent to bring any ship or vessel into danger, or shall unlawfully and maliciously do any thing to the immediate loss or destruction of any ship or vessel in distress shall bo guilty of felony, and being con- victed thereof shall suffer death. § 10. Whosoever shall by force prevent or impede any person endeavouring to save his life from any ship or vessel which shall bo in distress or wrecked, stranded or cast on shore (whether he shall be on board or shall have quitted the same) shall be guilty of felony, and being convicted thereof shall be liable at the dis- cretion of the court to be imprisoned at hard labour in the pro- vincial penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any ether prisoner place of confinement for any term not exceeding two years. § 11. Whosoever shall unlawfully and maliciously des- troy any part of any ship or vessel which shall be in distress, or wrecked, stranded or cast on shore, or any goods, mer- chandize, or article of any kind belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the provincial penitentiary for any term not less than scTcn years, or to be imprisoned in any other prison or place of confinement for any term ' not exceeding two years. By Stat. 4 & 5 v., c. 27, § 24, if any person shall assault, and strike, or wound any magistrate, officer, or other person whatsoever, lawfully authorised, on account of the exercise of his duty, in or concerning the preservation of any vessel in distress, or of any vessel, goods or effects, wrecked, 860 2eitec1t« stranded or cast on shore, or lyine under water, every offender beins convicted thereof shall be liable to be i soned at hard labour in the provincial penitentiary fo term not less than seven years, or to be imprisoned ii other prison or place of confinement for any terir exceedmg two ^cars. For proceedings to recover j)enalties under 4 & 5 ' 25, see title ^^ Summary Conviction." PAWNBROKERS. By the 14 & 15 V., c. 82, S 1, pawnbrokers are req to take out a license annually under the penalty of § 2. A duty of £15 thereon to be paid to the colled customs. The subsequent clauses of the act contain visions for regulating the mode of carrying on the busi the rates of profits to be taken, the giving of not( duplicates for the articles pawned or pledged. The i of parties offering goods in pawn not giving a good of of themselves — their committal to gaol by a justice- granting of a search warrant to the owner of goods susp to be unlawfully pawned, &c. ; and by § 24, such justict compel any pawnbroker to produce his books and vouc and if he neglects or refuses to produce the same in a and perfect state, he shall be liable to a fine not cxcej £10 nor less than .£5. § 27. But no fees shall be by any justice for any warrant or summons issued undt act. For the remaining provisions the act itself m referred to. ^0tfCttUttt«l SbotMitn* 861 lalties under 4 & 5 V., treasurer. § 33. Associations to hold an annual fair or exhibition to be open to all competitors from any part of the province. The directors to hold an annual meeting during the week of tho exhibition, and at such meeting shall elect u> president and vice-presidents, and appoint tho place for holding ihe next meeting and exhibition, and may mal.o rules and regulations for tho management thereof, appoint a local committee at the place of such exhibition and prescribe their powers and duties. § 34. Tho Board of Agriculture in con- junction with the president and vice-presidents of the Boird of Arts and Manufactures, or any persons named by the board in their place shall be the council of the association, with full powers : and all grants of money, subscriptions, or other funds appropriated for the use cf the association (except money collected by or granted to any local committee for the local expenses of tho exhibition), shall be received by and expended under tho direction of the said board as such council, and the secretaries of the said board and of the Board of Arts and Manufactures, shall be ex officio joint secretaries of the association. § 35. All contracts and legal proceedings of the association shall bo had with the Board of Agriculture, so constituted as such council in its corporate capacity. § 36. Municipalities authorised to grant money or land in aid of tho association, or of any Agricultural or Horticultural Society, or Mechanics' Institute within the municipality. AGRICULTURAL SOCIETIES IN UPPER CANADA. Count!/ or Electoral Division Societies. § 37. An Agricultural Society may be organised in each electoral division whenever fifty persons shall become members thereof by signing a declaration in the form A annexed to the act and each paying not less than five shillings annually to the funds of the society, a true copy of such declaration (within one month after the money has been so paid), to be transmitted to the Board of Agriculture. § 38. The object of such societies, and of the township or branch societies in connexion therewith shall bo to encourage improvement in agriculture or horticulture, by holding meetings for discus- sing and for hearing lectures on husbandry, by promoting the circulation of agricultural periodicals, importing seeds, plants and animals of new and valuable kinds, by offering prizes for essays on questions of scientific enquiry relating to agriculture or horticulture, manufactures, and works of Port, and by awarding premiums for excellence in raising or I 862 AdtfntUtttral Socletfefii. introducing stock, the invention or improvement of aj tural implements and machines, the production of vegetables, plants, flowers and fruits, &c. The funds be expended otherwise, and the directors empowered to by-laws. § 39. Annual meeting to be held on the week in January for the election of a president an( president, a secretary and treasurer, and not more than directors. § 40. Presidents of township Agrici Societies, and of Mechanics' Institutes receiving gover aid, and of Boards of Trade (or any other person app by such society, institute or board, in the place of president), within the county, to be in addition to before named, ex officio directors of the county society, vided that such township society and Mechanics* Institut have contributed £2 10s. annually to the funds of tha c society. § 41. Meetings of the ofiicers and directors held pursuant to adjournment, or called by written not and by authority of the president, or senior vice-pre in his absence, at least one week before the day appc Five to be a quorum. § 42. Said officers and direcl prepare and present at the annual meeting a report of proceedings during the year, and to contain certain statei also a detailed statement of receipts and disbursemci true copy of such report certified by the president or sec to be sent to the Board of Agriculture on or before tl day of April following. § 43. County societies to i reports of township or branch societies and transmit the Board of Agriculture with appropriate remarks. Officers and directors to answer queries and afford formation from time to time to the Board of Agricu may be required, touching the interests or condit agriculture in stich county, and generally to act as practicable upon the recommendations of said board. TOWNSHIP SOCIETIES. § 45. A tow^nship or branch Agricultural Society organised in each township in Upper Canada, or in or more townships together whenever a sufficient number sons, not less than twenty-Jive^ shall become members by a declaration in the form of schedule A, and subscrib less than XIO ann\ially to the funds thereof. A tr of such declaration certified by the president or vicc-p of such society, to bo forthwith transmitted to the society. § 46. Such societies to hold their annual n in the second week in January, and elect a presidei president, secretary and treasurer, and not less tht improvement of agricul- the production of grain, ts, &c. The funds not to jctors empowered to make to be held on the third of a president and vice- • and not more than seven ►f township Agricultural ;utes receiving government tny other person appointed ,rd, in the place of such , be in addition to those f the county society. Pro- d Mechanics' Institute shall J to the funds of the county officers and directors to be called by written notice to, it, or senior vice-president c before the day appointed. lid officers and directors to al meeting a report of their to contain certain statements, ceipts and disbursements ; a [by the president or secretary culture on or before the first County societies to receive cieties and transmit them to appropriate remarks. §44. • queries and afford such in- the Board of Agriculture as B interests or condition of i generally to act as far as ations of said board. ,OCIETIES. Agricultural Society may be Jpper Canada, or in any two ever a sufficient number of per- all become members by signing .edule A, and subscribing not funds thereof. A true copy ihe president or vice-president ,h transmitted to the county to hold their annual meetings [ and elect a president, vice- -er, and not less than three ^grftttUtttal Sbntitiltn. 863 nor more than nine directors. § 47. Said officers and directors to prepare and present to their annual meeting a report of their proceedings during the year in the same manner as county societies, and transmit a certified copy to the secretary of the county society in time for their annual meeting in February. HORTICULTURAL SOCIETIES. § 44. Any number of persons, not less than twenty jive may form themselves into a Horticultural Society for any city, town, village, township or parish, or union of two or more thereof, in Upper or Lower Canada, by signing a declaration in the form of schedule A, with necessary alter- ations as to name, and subscribing not less than .£10 annually to the funds thereof. § 49. Declaration to be in duplicate, one part to be written and signed on the first page or pages of a book to be kept by the society for recording its proceed- ings during the first year ; and the other part written and signed on paper or parchment to be sent by post to the Minister of Agriculture, who shall cause a notice thereof to be inserted in the Canada Gazette. § 50. After insertion in the Gazette, siv-h society to be a body corporate and politic, with power to hold and alienate property. § 51. And power to make by-laws for prescribing the mode of admission of new members and election of officers and regulation of afiairs. § 52. To hold annual meeting in the first week in February and at such other time as may be provided for by its by-laws : and at such annual meeting to elect a president, vice-president, a secretary and treasurer, and not less than three nor more than nine directors. § 53. Said officers and directors to prepare and present to the annual meeting a report of their prcieedings during the yp"" as directed for county Agricul- tural Societies, but with reference to Horticulture only. GENERAL PROVISIONS. § 54. Tho exhibition of the county society shall be held whenever the majority of the directors, or of a quorum, shall think fit, giving public notice thereof. It shall bo lawful for two or more county and township societies, by agreement between the directors, or a majority, in each society to unite their funds for the erection of suitable buildings, for exhibiting articles of produce, manufactures or works of art, or for animal or extra shows, ploughing matches, or for any other purpose likely to promote agriculture, horticulture, arts or manufactures, with power to hold or alienate land, &c. § 65. Whenever the presidcAt and secretary of the Board of 864 ^0tfcttltutal SotUtfes. Agriculture shall certify to the Minister of Agricultui any county society has sent to the board reports and ments as required by the act, and that the treasurer oi oflScer of such society has transmitted to said boa afSdavit in the form of schedule B, sworn before a j stating the amount subscribed for that year, and paid treasurer of the county society by the members therec by the township societies, it shall be lawful for the Go to issue his Avarrant in favour of such county society sum, out of any unappropriated moneys in the hands Receiver General, equal to three times the amount app by such affidavit to be in the hands of the treasurer : pr that no grant shall be made unless £25 be first subs and paid to the treasurer; and provided, that the amount granted to any such Electoral Division Societ; not exceed £200 per annum, save and except that e the counties of Lennox and Addington, Huron and ' separately shall be entitled to receive a sum not exc £200, on the conditions specified in this act : and tl counties of Prince Edward, Welland, Haldimand, Holton, Kent, Carleton, Essex, Lambton, Lincoln, N( Peel and Perth shall be entitled to a sum not exceeding per annum, and on the conditions aforesaid. § oi electoral divisions designated in 16 V., c. 152, as Ni 22, 13, 24, 25, 26, 27, 28, shall each be entitled to i a sum not exceeding £100 for the encouragement of culture, agriculture, manufactures and works of art their respective limits : provided that a full equivalent sum to be so paid by the government be subscribed an to the treasurer of a society to be formed within such el division in the same manner as county agricultural s( under § 36 of this act, to be called " the Society for the Canada Electoral Division No. 21," (or as the case m § 57. Township or branch societies duly organised anc ing a report of its proceedings to the county society, c to a share of the grant to the county society in propoi the amount subscribed by members and deposited ^v treasurer of the county society on or before the 1st each year, as compared with the amounts deposited b township or branch societies. And the sum so do shall be repaid along with its share of the public gran received by the county socity. Provided that three Jlf no more of the public grant shall be subject to division township or branch societies : and that the declaratio tioned in § 45 shall bo deemed a sufficient report for t year in which any township or branch society may ha nister of Agriculture that 3 board reports and state- that the treasurer or other mitted to said board an B, sworn before a justice, that year, and paid to the the members thereof, and be lawful for the Governor such county society for a moneys in the hands of the iimes the amount appearing 1 of the treasurer : provided ess £25 be first subscribed [ provided, that the whole itoral Division Society shall ve and except that each of iington, Huron and Bruce, Bceive a sum not exceeding id in this act : and that the /"elland, Haldimand, Grev, Lambton, Lincoln, Norfolk, to a sum not exceeding .£250 ;ions aforesaid. § o6. The , 16 v., c. 152, as Nos. 21. each be entitled to receive the encouragement of horti- •cs and works of art within [ that a full equivalent for the iment be subscribed and paid formed within such electoral county agricultural societies "the Society for the Upper pi," (or as the case may be.) tic's duly organised and send- the county society, entitled ,unty society in proportion to ibers and deposited with the on or before the 1st May lu lo amounts deposited by other And the sum so deposited Lrc of the public grant when Provided that By private persons 48 Manner of making arrest 48 Proceedings after JiU Arsenals fiO Arson. Inhabited dwelling-house r>l Church or chapel, &c. ... 01 Stacks of corn, grain, &c. 51 , 52 Wood, charcoal, &c. ... 51 School-house, lecture- room, &c 51 Town or city liall 51 Railway buildings 62 Articles of the Peace . . 53 Information 64, 822 Warrant 56 Recognizance 56, 822 Commitment for want of sureties 50, 823 Form of supersedeas ... 56 Release. of surety 57 Discharge of party com- mitted f 57 Form of articles of the peace 58 Arts and manufactures. Boards of IG Assault and battery. Aggravated assault 59 Common assault CO Form of indictment C2, G3 Ashes, pot and pearl . . . 057 Assessment law 03 Assessors 73 Assizes 73 Commissions for, dis ■ pensed with 74 Associate justices 74 Attainder 75 Auctioneer 77 Autre fois acquit 77 Autre fois attaint 82 Autre fois convict 82 Backing warrant. 83, 454, 781 Form of 84,470 Bail. By two j ustices for felony 402 One justice for misde- meanor 85 Acknowledging in ano- ther man's name... 85, 349 Recognizance of bail ... 719 Forfeiture, estreat 311 Banishment 80, 094 Banks, banking Bank notes Stealing of Forgery of ] Bankers' clerks Embezzlement by Larceny by Banks of rivers. , Baptisms &c., registry ( Barratry ". . Bastard 9 Murder of Bawdy house Indictment for kcepiu Beef and pork Bench warrant ....... Form of Benefit of clergy alio ished Benefit societies Bigamy Billiard tables 102, 10 Blasphemy and profane ness Boards of agriculture . Boards of arts and mam factures Board of health . . Board of works. . . Boundary lines. Survey of Removing monuments! False swearing ... Bread, assize of .. Bribery At elections , Bridges. Wilful damage to Fast driving over., Buggery , Buildings. Stealing from, gli| woodwork or meta Bureau of agriculiuro| Burglary What is an entering.] What is a mansioiif dwelling-hou3e , Of the time of comJ ting the offence....) Intent Punit,| anksrs' clerks sV^^ Embezzlement by I'.O:, Larceny by .j.ij anks of rivers H!) aptisms&c, registry of VH\ larratry Sii lastard !H), ;i!)!) Murder of a view -j- ii To disinter a body 233 <' To apprehend for murder 233 Commitment for 234 Witnesses. Summons to a witness... 234 Commitment for default 2;10 »t For refusing to give evidence 235 i< For refusing to sign 230 »• For refusing to enter into recogni- 00- nizance ■" Costs. On summary conviction.^ _23'J Of appeal 27,28 On trial for misdemea- nor ''.'- Of witnesses in felony... »u4 Counterfeiting coin. 155, 262 Counterfeiting bank notes, &c 89, 349 Counties. Abolition of districts ... 241 Unions of counties 241 Dissolution of ••••• 2*1 Territorial division of ... 24o County attorney. Appointment of ^f Duties "^ FAOIS County court. Jurisdiction 254 County funds 256 Court house 256 Criminal information . . 484 Notice of motion for 493 Criminal law. Of England, introduction of , 256 Larceny, consolidation of 250 Malicious injury to pro perty 256 Malicious injury to the person 256 Criminal lunatic asylum 257 Cruelty to animals 257 Currency. Silver, legal tender in... 261 Copper 262 Gold coin, value of 262 Counterfeiting 262 Light coin 264 Customs. Forging mark or brand 264 Counterfeiting papers ... 265 Offering for sale smug- gled goods 265 Obstructing officers 265 Unlawfully seizing goods detained 266 t)epo8iting goods seized 266 Smuggling 267 Culling and maiming267, 268 Deaths, registry of 126 Death, sentence of 268 Recording 268 Debts, payment of by executors, &c 674 Debtors. Absconding 2 Indigent 412 Insolvent 421 Deer 356 Deliverance, warrant of. 46;J Demise of the crown . . . 676 Depositions, copies of. . 464 Deserters 268 Detainer, forcible 337 Discharge of party ac- cuscd 463 Dismissal, larceny .532 Of complaint 794 Order for 819 PAQE Distillers 260 Search warrant 271 Distress. By justice's warrant 272 Liberation of defendant 273 lleturn of warrant 273 Tender of amount 274 For rent, uader JE20 509 For penalties do 609 Division courts 274 Table of fees 286, 287 Dogs , 287 Domostic animals 287 Dower. Mode of barring 2^8 Alien wife, entitled to... 24 Drowning 288 Drunkards 425 Duelling. Liability of parties to ac- tion 289 Election, at trial for felony 842 Elections, parliamentary. Qualification of candi- dates 289, 297 Returning officcrslDS, 290, 621 Place of election 291 Proceedings at 292 Polls •. 202, 269 Poll book 293, 299 Scrutiny 294 Agents 294 Qualification of voters295, 619 Proprietors 295 Tenants 295, 301 Public officers 296 Lands in several coun- ties 296 Joint tenants 296, 302 Incorporated companies 296 Disputed votes 297 Oaths, elector's 297, 302 British subjects 297 Oath of alk'giancc 297 Unqualified voters 297 Fraudulent conveyances 297 Females 297 Interpreters 297 Conservators of the peace 298 Bribery 299 Strangers 299 Flags, iio 299 Administering oaths 299 Penalties, recovery of ... 299 Cities and towns 299 Fees 299 872 INDBX. TAdK Elections, controverted. :M)2 Elective franchise. Exteiision of 1101 Cities, towns, townships .'JOl Oath of quiilitication ;}02 Electoral divisions. Lower Canada 609, CM Upper Canada (ill, 015 Embezzlement. By clerks or servants 5505, 84li By bankers, agents By factors SOC) Form of indictment 807 Embracery :M)7 Emigrants :)08 Escape JnO, 007, 845 Estreat 31] Evidence. Competency of witnesses 315 Age of witness 316 Husband and wife 816 Examination. To bo in presence of the accused .• 456, 317 Execution, staying of. Reprieve, pardon 319 Woman, quick with child 319 Diversity of person 819 Executors 609 Explosive substance . .. 321 Extortion 320 Extradition (fugitive cri- minals) 353 False lights 32:J False imprisonment. 58, 185 Notice of action for 10 False pretences 137 Indictment for 323 False receipts 323 False weights, &c.. 84^, 849 Fees. Justices .*. 490, 491 Clerk of the peace 168 Constables 186 Coroners 214 Felo-de-se 395 Felony. Prisoner entitled to copy of indictment for 412 Allowed to defend by counsel )i68 Compounding felony 177 Misprision of felony 587 . I Fences. Stealing , Malicious injury to ,... Fence viewers Ferries 320, .Ma Fities and forfeitures. To whom payable Returns of [ Under by-lawi Fire. Inquisition by coroner. Firemer ;);) Fireworks Fish, inspection of.... Fishing. By foreigners proliibitc Salmon, when prohibite By torch-light Fish dams, malicious ii jury to Flour and meal, inspei tion of Forcible entry and (!< tainer Remedy Restitution Forms in ,in Foreign aggression , . , Foreign service .. ., Fore-stalling Forgery Of the great seal Securities for money Letters patent Transfer of bank stock! Names of witue8.sc8...r Records, deeds, &c...J Recognizances, cogno^J Foreign bills Foreign matter... Postogo stamps... Seal, stamp, or signatJ to legal documents! xVccessories Indictment Witnesses Forwarders, false ceipts by Fraud, false pretcncl cheats Fraudulent conveyanj Fraudulent wagers. .1 Index. d73 PAGE StcdlinR i ;;'jl Malicioua injury to yjg ence viewers r^]^ erries -iS'), 5127, fili) ines and forfeitures. To whom payable K^j, Returns of ;>jS Under by-laws ;;oi| 'ire. Inquisition by coroner... ;i2(i 'iremer *M), ;J:)| 'i reworks :3;JI 'ish, inspection of :j:Vj ''ishing. By foreigners probibited 1)114 Salmon, when prohibited liRl By torch-light .584 ?ish dams, malicious in- jury to 335 flour and meal, inspec- tion of •..., 33.") Fojcible entry and de- tainer 337 Remedy 33R Restitution ;i3i,) Forms in WO to 344 Foreign aggression ...f 31,') Foreign service 345 Fore-stalling 316 Forgery 34fi Of the great sen! 341 Securities for money ... 347 Letters patent 34i Transfer of bank stock... .34** Names of witnesses .348 Records, deeds, &c 34!* Recognizances, cognovits 349 Foreign bills 345 Foreign matter 3.W Postage stamps 351 Seal, stamp, or signature to legal documents. ... 351 Accessories 350 Indictment 3il Witnesses 351 Forwarders, false re- ceipts by 323 Fraud, false pretences, cheats 137 Fraudulent conveyances. 297 Fraudulent wagers 521} I'AOB Free giants iWi, 681 Kree trade, reciprocity . . 719 Fruit, frail trees :J63, 5(iO, H4() Fugitive felons, from other provinces.... :jr>a Funerals, disturbance of. 125 Toll free ;i81 ( iaine, destruction of. . . J350 Gaining 357 (jtiols •••.•••••••«.•.. uoU Inspectors of 422 Kules and regulations... 42.'i Spirituous liquors, sale of probibited ;!62 Gnoler, appointment of. iVyi) Demand of warrant 10 (Jiiol li'inits iHi'i Gardens 1 12,363,770,774, H40 Gas and waterworks. Formation of companies for 363 General quarter sessions. Time of holding i\GC), 752 Commission of the peace need not be read ut.... o(>'> Proceedings 88 Inns, inn-keepers. Detention of goods for reckoning 415 Goods of a guest stolen from 41U Licensing 410 Inspectors of Taverns... 423 Inoculation 420 Insane destitute 420 Insane cri^nals 420 Acquittal of 420 Asylum for 420 Insolvent debtors. Weekly allowance 421 Inspectors of gaols and hospitals.. 422 Inspectors of taverns. .. 423 Intemperance. Death by intoxication ... 424 Punishment of drunkards 423 Interpretation act.,., .Toint stock compani (incorporation of Koad companies „„', Manufacturing, &p, .' For acquiring pu works Journeymen Jury. Qualification of juror Selection and distribui Jurors' book IJalloting jury lisLs... Drafting panels Jury process Drawing jury at trin Special juries Challenging Summoning jurors Non-attendance, peni' for Onind Jury Falsifying jury list.. Petit jurors, payment Justices of the pcacf. Qualification Form of Commission Oath of oflicn J Indemnity and protec] Actions against j Justices fees Indictable (jlibiil (proccediiiirs Complaint Warrant 4.jI Search Warriuit. Backing warrant ... Summoning witnesscj Examination .. Counsel, presence ol| Statement of the ncij Recognizances .... Remanding Jurisdiction Bail Deliverance, wnrrnJ Commitment or d i.scl Conveyance to piaof Copies of dcpositic Forms. Information | Warrant Summons Warraflt after Sur Search warrant ..I Warrant after Indi| Commitment INDEX. 875 P\OK nterprelation act V:f) oint stock compauips, (incorporation ot).. ^'i^ Hoftd companief* :igi) Manufacturing, &c 4ojj For ftcquiring public •works f/lij lourneymon Jury. Qualification of jurors... Selection and distribution 'il'i 4;!(j 430 Jurors' book 4;>(j Ualloting jury lists 4;ii Drafting panels 431 .Tury process 4;jj Drawing jury at triiil... V,: Special juries 4;];; Challenging 4;J2, ■\:y; Summoning jurors 4?,;; Non-attendance, penalty for 1?,:; Grand Jury ■. . -K^, K, Falsifying jury list 4:',;; Petit jurors, payment of. \.v, Justices of the pence. Qualification 441 Form of Commission .... 444 Oath of oflico, HI Indemnity and protection 484 Actions against 48j Justices fees 4'J(i, 4iil Indictable ulfeiices (proceediniTs on). Complaint 44,1 Warrant 4.j1,4.V2, IK Search Warrant 4il Backing warrant IM Summoning witnesses ... tt Examination 45S Counsel, presence of 4Ji Statement of the accused 45; Recognizances 4.)S Remanding 45? Jurisdiction V.ij Bail ffii Deliverance, warrniit of. 4f;i , Ccmuiitment or discharge 4i;; Conveyance to gaol 4i]4 Copies of depositions ... 4^ I Forms. Information ^« Warrant J« Summons M Warrant after Suramous. 4i!l Search warrant J'" Warrant after Indictment k\ Commitment do. m Uetaiqer 400 Backing warrant 470 Warrant, remanding pri- .Moncr 47t> Kecognizanco of bail in- stead 470 To convey the accused before another justice. 478 Receipt to the constable. 471) 13uil. Recognizance ct 480 Warrant of deliverance.. 481 Commitment. Warrant of 481 Gaoler's receipt 482 Statement of the accused. 73 Witnesses. Summons to 470 Warrant apninst 471 Comraitnient 472, 475 Discharge of 470 Depositions of 472 Recognizances. To prosecute 473 To give evidence 474 Sec further " Summari/ Conviction." Juvenile offenders. Summary trial of 40;1 Reformatory prisou for.. 722 Kidnapping 498 iCing's (Queen's) Bench MS King's evidence . . . .13, 41)9 King's stores 500 Lakes and rivers. Jurisdiction 510 Land lotteries 544 Lands, public 679 Land scrip 681 Landlord and tenant. . . . 501 Distress for rent 501 Fraudulent removal of goods 500 Notice to quit 507 Deserting the premises 508, 514 Overholding tenant 508 Kent due executors W.) Costs of distress 509 Larceny by tenants 527 Land surveyors 516 [Larceny. Felonious taking ol'.t Severance 'A'.) Felonious intent 519 Recent possession 510 Identity 519 Claim of right 520 I'AOB Finding 520 Fraudulent pretenco8.520, 841 Bailment 521 Larceny by servants.. 522, 627 " bankers clerks 522 " carriers 122, 522 " millers 528 " tenants 527 Fraudulent wagers 528' Property unknown 525 Securities for money, &c. 525 From vessels 626 Wills 626 Title deeds 526 Glass, lead, &c 627 Summary trial for 529 Indictment for larceny... 532 Law of England, civil . 523 Legislative Assembly. Qualification of members 195 Annual sesL'ion 190 Quorum 126 Members' indemnity 633 Legislative council. 533, 606 Qualification 607 Forfeiture of seat 193, 607 Resignation 193 Quorum 193 Libel. Affecting the public 534 Private individuals 534 Justification 535 Publication 636 Punishment 5iJ6 Indictment fer 687 License of occupation . . 681 Lights, prescription. ... 666 Lights, false 323 Lights, navigation 588 Limitation of time for prosecution 786 Line fences, water- courses. Fence viewers 385 Division fences, repairs 588 Lawful fence 538 Unenclosed lands 539 Removing fences 539 Water fences 640 Lock-up houses 541 Lord's day. Selling or purchasing on 548 Tolls on 644 Lotteries. Selling tickets, penalty for 644 I. mm 876 INDEX* PAGE I Lunatic asylum, provin- Lunatic asylums, (pri- Lunatics, dangerous. . . . 555 Lunatics, maintenance . 546 Machinery. Guards to 556 Inspection by justices ... 656 Penalty for defects 566 Malicious injury to 566 Magistrates (see sujwa "Justices" and infra "Police Magistrate.") Mail, robbery of 648 Obstructing 662, 653 Maintenanc;e 557 Malicious injury. To the person 557 To property 559 Mandamus 560 Manslaughter 393, 562 Indictment for 562 Manufactures, mining, shipbuilding. Incorporation of compa- nies for 428 Manufactures- Malicious injury to 562 Manure (exempt from toil. )•••••••••• ,•••• Sol Markets, forestalling... 346 Marriages. Where no resident minis- ter 563 By ministers of certain denominations 664, 565 Unlawful solemnization 565 • Not cognizable at sessions 751 Returns and registra- tion 566, 567 Married women. Conveyances by 668, 569 Master and servant .... 570 Mechanics' institute . . . 57*i Menonists 595 Exempt ft-om militia 674 Militia. Sedentary 572 Exemptions 573, 574 Serrice men 674 Active or volunteer coi panies Volunteer marine Pay General provisions ... Calling out the militia Armament of sedents militia Billeting Penalties Miscellaneous provisic Millers. Toll to be taken by .. Larceny by Mills. Fishing by torch-li( near to Mill-dams. Aprons to Malicious injury to... Overflowing lands Miscarriage 1, 5 Misdemeanor. Bailable Copy of indictment ,. No traverse allowed .. Trial Misprision of felony . Misprision of treason Money Indictmentfor stcalin Month (calendar inori Monuments, removi &c Murder Indictment for Mute • • ••«•••• *••••••■• >•••«••••< Navigation, inland.. Newspapers (pos Normal school Nuisance. Public Private Remedy Indictment for .. Oath, affirmation . . When a justice inn minister When otherwise . Oath of allegianrc. Oatli of office T^- INDEX. 877 ■^ PAGE Active or volunteer com- panics o74 Volunteer marine 575 Pay oTn General provisions 575 Calling out the militia... ,');: Armament of sedentary militia 073 Billeting 578 Penalties 57^ Miscellaneous provisions 581 Millers. Toll to be taken by 534 Larceny by 52!! Mills. Fishing by torch-light near to 584 Mill-dams. Aprons to 58!! Malicious injury to... 5.59, 583 Overflowing lands 584 Miscarriage 1, 559, 699 Misdemeanor. Bailable 58r, Copy of indictment 58() No traverse allowed hit, Trial 841 Misprision of felony ... 0*5' Misprision of treason... 8:)i) Money oS] Indictmentfor stealing... 55: Month (calendar monili) 42] Monuments, removing, &c 10:1 Murder W Indictmentfor iSf Mute oSS Navip^ation. inland '-f^s Newspapers (postafrc free) 056 Normal school Ififl, HO Nuisance. Public '^Ol Private '^t Remedy ■"*! Indictment for '1% Oath, afrirmaiioii 'M When a justice may a'l- minister 4^" When otherwise ffi ..)» Oath of allejTJanrc. Oath of office .... f)' PAGB Oatmeal..... 335 Officer, public, neglect of duty by 596 Orchards. 112,363,770,774 Orders of magistrates . . 597 For payment of money 806, 807 Imprisonment for diso- bedience 807 Dismissal of complaint ... 808 Ordnance stores 500 Orphan children 597 Outlawry. Proceedings in 507 Form of return 598 Pardon 599 Party processions 002 Parliamentary represen- tation. Legislative council H06 Qualification .. fi07 House of assembly 015 Qualification 195 Lower Canada represen- tation G19 Upper Canada represen- tation 019 Qualification of voters ... G19 Separate polls G20 Returning officers 012 Parliament, indepen- dence of. Functionaries, who dis- qualified 022 Members, disqualifica- tion 022 Exceptions 622 Government contracts ... 023 rcnalty 023 Acceptance of office, &c. 623 Resignation of seat 624 Vacancies 624 Patent rights (502 Pawnbrokers 860 Peace, sureties for keep- ing 52,825 Pedlcrs 373 Penalties 509, 625 Penitentiary (12.5 Periodir'als(postage free) 656 Perjury. At common law Oi'>4 By statute 635 Not cognizable at ses- sions 638 indiotment for 638 PAOE Subornation 634 Indictmentfor 639 Petit jurors ,payment of. 436 Petty trespasses 770 Physic and surgery.... 639 Indictment for practising without licenso 639 Pillory, abolished 640 Piracy 640 Poison, selling 644 Poisoning 557, 643, 644 Police office 647, 796 Police magistrate, pow- ers and duties, 464, 647, 796 Police trustees, villages. 645 Pork 91 Posse comitatus 648 Possession, law of 666 Post office. Robbing the mail 648 Postage stamps 650 • Felonies. Stealing post-letters 651 " Money out of ... 651 •' Post letter bag. 051 " Or letter from... 651 " Opening bag ... 651 Receivers 051 Forging stamps 052 Misdemeanors. Unlawfully secreting or delaying post letter bagor letter 052 Stealing printed forms, newspapers, &c 662 Obstructing the mail... 662 Damaging or destroying letter bag 652 Drunkenness of mail- carrier 052 Toll-gate-keeper ob- structing the mail ... 653 Soliciting others to com- mit offence •^663 Recovery of penalties ... 654 Branch offices 654 Penny post delivery 666 Mail contracts 054, 666 Newspapers, periodicals 666 Pot and pearl ashes 657 Pound breach 660 Pound keepers 257, (>62 Praemunire , .-, . 664 Prescription 6C6 Presentment 666 \ \ \ / 878 INDEX. PAGE F5.-ison breaking 067 Prisoner. Resuue 784 Escape 310, fiGT, 845 Defence by counsel 668 Copies of depositions, en- titled to 668 Dying in prison 203, 227, 394 Prize fighting 669 Probate. Office of executor 669 Office of administrator... 669 Probate, how granted.., 670 Administration, how granted 672 Payment of debts 679 Registering probate 726 Profaneness &c, 827, 184., 102 Provident societies 675 Provincial parliament. Demise of the crown 676 Provincial revenue. Appointment of officers. 676 Penalty for taking fees. 676 Fraudulent embezzle- ment by 677 Provisions. Sale of unwholesome, in- dictable 677 Forestalling 346 Public health 677 Public lands. Removal of intruders... 679 Penalty for cutting tim- ber 679, 682 Free grants 680 Sale of 681 Clergy-reserves 681 Public meetings, organi- zation of 682 Public officers. Security by 685 Indictable for neglect of duty 596 Public works. Transfer of roads 687 Companies for acquiring 690 Riots at 692 Public worship (VM Punishment 694 For better proportioning 700 When by imprisonment in the penitentiary.... 700 duakers, affirmation h^ Exemption from militl Glualificalion of justice Gluarter sessions (see / fra sessions). Railways. Consolidation act Fences Tolls Shareholders liability Actions, fines and peni ties Working of the railwn General provisions ... Malicious obstruction Stealing or forging rn way tickets Accidents on railways Appointment of inspi tors Rape Rebellion, amnesty for Receivers of stolen goo Taking rewards Advertising rewards... Trial Reciprocity (trade w U. S.) Recognizance. General form of To prosecute , To prosecute and g evidence To give evidenco. Commitment for relu to enter into Respiting Forfeiture Records, stealing of . Recorder, appointnie of Recorders' courts . Sittings Reformatory prison., Registry office .... Registering mcinnriiil Probates of Wills. Registering.judgmcnt Registrar's fees Forging certifiiatc Discharge of mortgag judgment , Registering map , Holidays at "T'sr'^^iff^ffl INDEX. 879 I'AGK 3,uakers, afiirmation by. 701 Exemption from militia. 074 blualificalion of justices, ill Eluarter sessions (see In- fra sessions). Railways. Consolidation act 702 Fences "O3 Tolls 704 Shareholders liability... 70(i Actions, fines and penal- ties 706 Working of the railway 708 General provisions 70i| Malicious obstruction... 71] Stealing or forging rail- way tickets 711 Accidents on railways... 71.'; Appointment of inspec- tors 713 Rape 71.) Rebellion, amnesty for. . 2? Receivers of stolen goods 717 Taking rewards 7I1; Advertising rewards 71s Trial Sj' Reciprocity (trade with U. S.) 719 Recognizance. General form of I7i To prosecute 174 To prosecute and give CTidence IH To give evidence 474 Commitment for refu-il to enter into 474 Respiting Sl2, 720 Forfeiture oil, 720 Records, stealing of ... . 526 Recorder, appointment of 721 Recorders' courts 721 Sittings "21 Reformatory prison.... 72'! Registry office 7^ 1 Registering memorials... Probates of Wills u Registeringjudgments 727,721' Registrar's fees "2S Forging certlfisatc "2'i Discharge of mortgage or judgment 72'^ Registering map l-'i Holidays at '>":i PAOE Religion ••••••. '^''^'•^ Religious societies. . . . . 731 Religious worship 734 Rent (distress for) .'501 Costs of distress 509 Replevin 505 Rescue 734 Restitution of stolen goods 735 Returning officer (elec- tions). . 195, 290, 607, «21 Returns by justices. . . . 447 Ring dropping .524 Riot, rout, &c 736 Riot at common law 7:>G By statute 737 Proclamation for rioters To disperse 737, 738 Indictment 739 Rivers and navigation. Obstructions 740 Roads and bridges. Obstructions 37(), 377, 380 Repairs of by municipali- ties tj02 Toll not demandable when out of repair 383 Incorporation of compa- nies 380 Road allowances. llnclosure of u40, 740 Stopping up 741 Saleof 741 Robbery 742 Robbing the mail 744 Rogues and vagabonds. 844 Roman catholic reli- gion 190, 191,838 Sabbath 74,5 Sacrilege 74,5 Salmon 740 School, normal 169, 170 Schools, common 161 Schools, grammar 365 Schools, Roman Catholic 175 School libraries, 163, 166, 169, 170 School teachers, super- annuation 175 Search warrant ... .451, 746 May be issued on a Sun- % 747 PAQK Sedition 747 Self defence(st> Jefendendo) 392 Servants 748 Larceny by .522, •527 Sessions. Jurisdiction 749 Time of holding 752 Proceedings at 7.52 •Precept to summon 758 Style of the sessions 768 Shevifr 7.59 Sliij)s Setting fire to 121, 704 Shopkeepers (licenses).. 764 Skilled labourers 572 Sleighs, without bells... 835 Smuggling 265, 267 Soldiers. Mutinynct 705 Desertion 208 Si)ecial constables .... 186 Special jury 432 Spirituous liquors. Sale of without license,. 705 Standard measure 767 Statute labour 767 Stealing (see supra "Larceny.") Steam vessels. Provision against acci- dents 709 Inspection of boilers, &c. 709 Stills .. 770 Stolen coods, receivers of 717, 718 Suicide 395 Subornation of perjury. 634 Subpa?na, form of 758 Summary conviction, 16 V. c. 178. Information before one justice 795 Issuing .summons 797 Warrant in case of default 780 Racking warrant 781 Summoning witnesses ... 783 Complaintto be in writing 784 Limitation of time 786 Hearing 786 Non-appearance of de- lendant 786 Proceedings 788 Evidence 789 Adjournment 789 ConTictiou 790 880^ IKDBX. PAOB Costs 791 Warrant of distress 791 Liberation of defendant. 792 Commitment in default of distress 793 Imprisonment 794 Dismissal of complaint... 794 Poceedinga after appeal. 794 Payment of penalty 795 Forms. Summons to a defendant 797 Warrant 798 Warrant of committal during an adjournment. 799 Recognizance on adjourn- ment 799 Summons to a witness... 801 Warrant 801,802 Commitment 802 Warrant to remand de- fendant 803 Conviction 804, 806 Order 806, 807, 808 Warrant of distress... 809, 810 Backing 811 Commitment 812, 813, 814 Warrant of distress for costs 816, 816 Commitment 816, 818 Information, general form 819 Dismissal, order for ... 819 Certificate of 809, 820 Notice of appeal 820 Recognizance 821 Summons 823 Sunday 825 Warrant on 461 Surety for good behaviour 825 When forfeited « 827 Surrogate courts 671 Surveyors .516, 827 Swearing, profane 827 Taverns 416,423 Telegraph 828 Mttlicioai] injury to 828 Incorporation of compa- niea 828 Temperance hotels .... 425 Tenants. Larceny by 627 Replevin by 606 Fraudulent removal of goods 600 Overholding 608 Theftbote , Threats Timber rafts Title deeds, &c., s ing of Tolls Town Reeve Training, unlawful Transportation .... Returning from Travellers Traverse (abolished Treason By aliens , Effects of attainder Prisoner entitled to of indictment Petit treason Misprision of treaso Trees, saplings, shi Malicious injury tc Trial. Verdict at Tunkers Turnpikes , Unorganized tracts Usury Vagrants . . Vegetables Vessels . . . Viewers. . . Warehouse, stealin Warehouse-man. False receipts by Warrant Watercourses . . Weights and meas Wife (her respons ties in law). .... Wills Wines Witnesses Expenses of ... Wolves Women Wood Workmen w rccic ••••••••■• U0W8KLL * EuUS, PKINTERS, KINQ4TRIBT, TORUNT SX. PAQE Theftbote 829 Threats 829 Timber rafts 831 Title deeds, &c., steal- ing of 826 Tolls 831 Town Reeve 831 Training, unlawful ..., 832 Transportation 833 Returning from 834 Travellers 8!M Traverse (abolished)... Treason By aliens Effects of attainder Prisoner entitled to copy of indictment Petit treason Misprision of treason ... Trees, saplings, shrubs. Malicious injury to Trial. Verdict at Tunkers Turnpikes 836 19 831) 83!) 839 840 841 r>74, 701 ... 8l'i Unorganized tracts Usury Vagrants . . Vegetables Vessels . . • Viewers. . . 842 844 84) Warehouse, stealing in 811 W arehouse-man . False receipts by 84" Warrant 811 Watercourses 531 Weights and measures. 848 Wife (her responsibili- ties in law) 851 Will 853 Wines 8^ Witnesses 853 Expenses of 851,855 Wolves 856 Women 856 Wood 856 Workmen S5? Wreck 858 CKR8, KINChOTBKKTi TORONTO.