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" An Index to the Statutes,'' etc., etc. TORONTO: CARSWELL & CO., 26 & 28 ADELAIDE STREET EAST, 1880. S7 Entered according to Act of Parliament of Canada, in the year 1880, by Carswell iS: Co., in the Office of the Minister of Agriculture. Moore & Co., Law I'rinttis, Equity Cliambeis, Toronto. l8o, PREFACE. In the following work I have endeavoured to give a plain statement of the law relating to the right of arresting offenders and parties suspected of committing offences which are Indictable, and the proceedings under the Statute relating to such offences ; as also the proceedings on con- victions for offences punishable by Summary Conviction. The law relating to the latter Statute has been in some important matters amended within the last few years. As the sections in the respective Statutes relating to above matters are in some respects unconnected, I have endeavoured to collate them under respective heads, and instead of making comments on each section separately in the order in which they are placed in the Statutes, I have considered them in separate Chapters in a connected view. This method, it is conceived, will be of advantage as a means of more ready reference. I have in many cases given at some length the judg- ments of Courts, in order the more easily to enable the Magistrate and Lawyer to comprehend the principles endeavoured to be illustrated. The latest amending Acts are properly inserted in the Statutes, and latest decisions are given applicable to the Statutes. 11 PREFACE. My aim has been to make the work, so much called for in some of the Provinces, an easy and practical guide to Magistrates and serviceable to the practicing lawyer. The local laws of the respective Provinces are not embraced, but only the general laws of Canada relating to proceedings on Indictable Offences and Summary Convic- tions. In many respects the principles applicable to the latter will be of service in expounding the former. I have made short allusions to the Statutes relating to summary and speedy trials. JAS. G. STEVENS. St. Stephen, X. B., Aufjnst, 1880. ed for ide to 'G not ing to onvic- to the TABLE OF CONTENTS PART I. ing to NS. Preface Table of Cases Chapter I. Introductory , 9 Meaning of certain words g-i i Arrests with and without warrant. . 11-20 Assisting Officer , . 15 Breaking open doors, etc i8 Dwelling House, what compre- hended in term 20 Process, legality of 22 Chapter II. Act respecting duties of Justices of the Peace, out of sessions, in rela- tion to persons charged with In- dictable Offences 23 Offences, information 23-27 Summons or warrant 27 Issue of, requisites of 29 Waiver of objections 55 Search warrant 38 Restoration of property 40 40 Duty of officer in executing search warrant Breaking open doors, (for "note" read "ante 18") 41 Warrant to apprehend party 42 Name of offender 43 Shewing warrant, right of party, known officer 46 Backing warrants 48 Husband and wife, witness 53 Privilege of witnesses 53-56 Signing of depositions 58 Prisoner to be cautioned 63 Examinations when may be given in evidence 65 Place of examination not an open Court 67 Binding over prosecutor and witness 63 Remanding accused party 73 Examination in one division and committal in another 74 Constable, expenses, payment .... 80 Bailing party, or discharging .... 8r, 82 Schedule of forms to Act 88 Additional forms not in Act zio PART II. Act respecting the duties of Justices of the Peace out of sessions in relation to Summary Convicti'^is and orders 119 Forms to Act 146 Additional forms not in Act 177 Chapter I. Provisions to which Act extends . . 179 Information, by whom may be had i8i Second offence, how party to be charged 182 Statement of time of committing ofience 182 Appearance and defence by counsel 182 Personal appearance 183 Waiver of objections 184 Jurisdiction of Justices when no in- formation laid 185 Defendant must be legally charged. . 189 Complaint 190 Conditions, precedent to Justices acting 191 Defendants, married women, infants 192 Aiders, abettors 192 Limitation of time for making com- plaint, or laying information .... 194 Joint information, several defendants 194 Several forfeitures 196 Several offences, joint conviction . . 196 Name of party unknown 197 Place, statement of 197 Statement of offence 198 Chapter II. Summons, warrant 199 Backing warrants 199 Summons, service 200 Ex parte, order 201 Variances, defects, etc 202 Convictions 202-4 iY TABLE OP CONTENTS. Chapter III. Hearing of complaint or inform.ition 205 Before what Justices 205 Right of party to know informer . . 207 Open court 207 Right of party to address court .... 209 Dismissal of case 210 Negativing or disproving exceptions 210 Proceeding ex parte, non-appearance of part) 211 Adjournment, dismissal of case.... 2H Disqualifying interest injustice.... 211 Next, or nearest Justice ai2 Jurisdiction, ouster of, assault, sum- n-.ary conviction on 213 Discretion in issuing summons .... 213 Mandamus 214 Chapter IV. Service of minute of order 215 Costs 215 Warrant of distress 2 16 Cumulative sentences 217 Clerk of the Peace, duties of 217 Chapter V. Appeal, notice of, conditions 218 To be on the merits 219 Judgmentson construction of Statute 220 Certiorari 229 Warrants of commitment, on con- viction 230 Notice of appeal, how and by whom given, service of 234 Time for appeal 234 Chapter VI. An Act respecting the prompt and summary administration of Crimi- nal Justice in certain cases 236 To what previous Act extends .... 2j6 What oftences the competen; magis- trate has jurisdiction over 237 Under what conditions magistrate may deal with offence 237 An Act respecting the trial and pun- ishment of Juvenile Offenders ... 238 To what Provinces extended 238 An Act respecting Juvenile Offenders within the Province of Quebec . . 239 An Act for the more speedy trial in certain cases, of Persons charged with Felony and Misdemeanours in the Provinces of Ontario and Quebec 239 Extension of Act to certain Pro- vinces 239 ! statute aao 229 n con- 230 whom 234 23+ it ar.fl Crimi- 236 ; 2 j6 magis- 237 [istrate 237 id pun- Eirs ... 238 238 enders ibec . . 239 irial in harged ours in o and 239 n Pro- 239 TABLE OF CASES. Adamson, Reg. v 213 All Saints, Keg, v 54 Anderson \ Hamilton 56 Arnold, !<,(,'. v 61 Asprell V justices of Lancashire .. . 234 Attwood, Keg. v 55 Haker, FJ \ndcock v 21 Baynes v. Brewster 17 Beadneli , Smith v 56 Beckuitli v. Fhilby 14 Bell, K(g. V 67 Bendshf. Newman v 197, 232 Bennet v. Watson 69 Bigginr,, Keg. v 183. 195 Birch \'. I 'erkins 35 Bolton, Keg. v 192 Booth , Cooper v 41 Boyes, Keg. v 53 Branscombe, Hobbs v 14 Brewster, Baynes v 17 Brewster, Whittier and wife v 181 Brown, Morgan v 197, 232 Brown v. Moore 39 Brown, Reg. v 15 Bnrpee, Smith v 20 Bush, Haye v 43 Cabe, Cadd v 22 Cadd V. Cabe 22 Calthrop, Fletcher v 2:0 Chasson, Reg. v 45 Chilverscoton, Reg. v 184 Clarke v. Wood 49 Clements, Reg. v 60 Clipson, .Shadgett v 43 Cole V. Coulton 181 Coleridge, Cox v 68 Collier v. Hicks 68 Cooper V. Booth 41 Coote, Reg. v 56 Coulton, Cole V 181 Court, Wright v 18, 47 Cowels V. Dunbar 15 Cox V. Coleridge 68 Crossin v. Cundy 41 Cundy Crossin v 41 Cutbush, Reg. v 217 Davis, Reg. v 63 Davis V. Russel 15 Dawson v. Gill 227 Dean of Rochester, Reg. v 212 Devon, Justices of, Reg. V 214 Dibble, Whittier and wife v 36 Dunbar, Cowels v 15 Dunlap, ex parte 189, 197 Dunn, Reg. v 63 Kills, Murphy v 13 Ellis, Reg. V 63 Elsee V. Smith 38 Evans v. Rees 52 Ex parte — Dunlap 189, 197 • Hart 215 Ex parte Johnstone 234 Wood 184, 190 Eyre, Reg. v 31 Fletcher v. Calthrop 210 Ford, Reg. v 15 Fuller, Keg. v 61 Galliard v. Laxton 46 Gardner, Reg. v 16 Gener v. Sparks 18 Gilham, Reg. v 55 Gill, Dawson v 227 Gore, Wyott v 56 (ioss V. Jack.son 227 Gregg V. Wells 19 Griffin, Reg. v 206 Haines, Reg. v 64 Hamilton, Anderson v 56 Handcock v. leaker 21 Hardwick, Nicholson v 14 Hardy, Reg. v 55 Harshman, Reg. v 189, 216 Hart, ex parte 215 Hedger, Lawrence v 14 Hennessy, in re 207 Hes'op, Reg. v 195 HicKs, Collier v 68- Hobbs V. Branscomb 14 Hood, Reg. V 44 Howells V. Wynne 194 Haye v. Bush 43 Huet, Reg. v 65 Hughes, Keg. v 25, 1S5 Hunt, Reg. v 13 Inhabitants of (ilaston. Keg. v 216 St. Paul, Reg. v.. .. 203 Walden, Reg. V 47 Ingham , Reg. v 26 In re. Hennessy 207 Williams 201 Jackson, Goss v 227 Johnstone, ex parte 234 Jones, Reg. v 55 Jukes, Reg. v 227 Justices of Kent, Reg. v 234 Lancashire, Asprell V. .. 234 Queens, Reg. V 182 Keir v. Leeman 73 Keyn, Reg. v 30 Lawrence v. Hedger 14 Laxton, Galliard v 46 Lee, Reg. v 60 Leeman, Keir v 73 Littlechild, Reg. v 195 Lucas, Russen v 18 Mackally's Case 18 MacMillan, Reg. v 185 Major, Watkins v 213 Manchester Railway Co., Reg. v.... 212 Marsden, Reg. v i6 Martin v. Pidgeon i89- Mayhew v. Wardley 196 Mayor of London, Reg. v 62, 83. ▼I TAJiTjK OK CASES. Messenger, Pino v 40, 41 Meyer, Keg. v 212 Moore, IJrown v 39 Morgan v. Brown 197, 232 Murphy V. Eills 13 Nary v. Owen 37 Newman v. liundshe 197, 232 Nicholson v. Hardwick 14 O'Leary, Ref(. V 191, 214 Owen, Nai7 v 37 Parker, Keg. v 60 Payne, Reg. v 55 Payne, Samuel v 14, 21 Pearson, Keg. v 213 Perkins, Birch v 35 Philby, Beckwith V 14 Phillips V. Winburn 65 Pidgeon, Martin v 189 Pine V. Messenger 40, 41 Rand, Reg. v 212 Rees, Evans v 52 Reg. V. Adamson 213 " All Saints 54 '• Arnold 61 •' Attwood 55 " Bell 67 '• Biggins 183, 195 . " Bolton 192 " Boyes 53 " Brown 15 " Chasson 43 Chilverscoton 184 " Clements 60 Coote 56 " Cutbush 217 " Davis 63 Dean of Rochester 212 " Devon, Justices of 214 Dunn 63 " Ellis 63 " Eyre 31 " Ford 15 " Fuller 61 " Gardner 16 Gilham 55 Griffin 206 " Haines 64 " Hardy 55 Harshman 189,216 " Heslop 195 " Hood 44 " Huet 65 " Hughes 25, 185 " Hunt 13 Inhabitants of St. Paul. . . . 203 " " Walden .... 47 " " Glasten .... 216 " Ingham 26 " Jones 55 " Jukes 127 Justices of Kent 234 " " Queens 182 Keyn 30 Lee 60 " Littlechild 195 " MacMillan 185 Reg. V. Marsden 16 " Mayor of London 62, 83 " Manchester K'y Co 212 " Meyer 212 " O'Leary kh, 214 I'arker 60 " Payne 55 " Pearson 213 " Kand 212 " Kussel 20O " Saddler 227 Scott IQf) " Shaw 54 " Simon 61 " Simmons 212 Smith i(i6 '• Spilsbury C6 " St. Paul 42 " Stone 1S7 Sutton 1S6 " Swatkins 63 " Thompson 54 " Thornton 63 '• Walker iG Russell, Keg. v 206 Russell, Davis, v 15 Russen V. Lucas iS Saddler, Reg. v 227 Samuel v. Payne 14, 21 Scott, Reg. V 196 Shadgett v. Clipson 43 Shaw, Reg. v 54 Simon, Reg. v 61 Simmons, Reg. V 212 Smith V. Beadnell 56 Smith V. Burpee 20 Smith, Elsee v 38 Smith, Reg. v.. , 196 Sparks, Gener v iS Spilsbury, Reg. v 66 St. Paul, Reg. v 42 Stewart, Wilson v 193 Stone, Reg. v 187 Sutton, Reg. v 186 Swatkins, Reg. v 63 Thompson, Reg. v 54 Thornton, Reg. v 63 Wakefield Board v. West Riding Rw'y Co 213 Walker, Reg. v 16 Wardley, Mayhew v 196 Watkins v. Major 213 Watson, Bennett v 69 Wells, Gregg v 19 West Riding Railway Co'y, Wake- field Board v 213 Whittier and Wife v. Dibble 36 Whittier and Wife v. Brewster .... 181 Williams, Iti re 201 Wilson v. Stewart 193 Winburn, Philips v 65 Wood, Clarke v 49 Wood, ex parte 1 84, 190 Wright V. Court 18, 47 Wynne, Howells v 194 Wyott V. Gore 56 fi i6 02, 83 2i2 212 . . . MI, 214 60 55 213 212 206 227 iqC) ■ 54 61 212 Iperty itte(U such owner, and shall be forthwith taken before some neighbor- ing Justice of the Peace to be dealt with according to law. 3. If any person to whom any property is offered to be sold, pawned, or delivered, has reasonable cause to suspect that any such offence has been committed on, or with respect to such property, he may, and if in his power, he shall apprehend and forthwith carry before a Justice of the Peace the party offering the same, together with such property, to be dealt with according to law. 4. Any person may apprehend any other person commit- ting any indictable offence in the night, and shall convey or deliver him to some constable or other person in order to his being taken, as soon as conveniently may be, before a Justice of the Peace, to be dealt with according to law. 5. Any constable or peace officer may, without a war- rant, take into custody any person whom he finds lying or loitering in any highway, yard or other place, during the night, and whom he has good cause to suspect of having committed or being about to commit any felony, and may detain such person until he can be brought before a Justice of the Peace to be dealt with according to law. 6. No person having been apprehended as last aforesaid shall be detained after noon of the following day without being brought before a Justice of the Peace. Arrest Without Warrant of Justice. Besides the cases mentioned in foregoing sections autho- rity is given by special Acts to persons to arrest, not being constables or peace officers, and without a warrant. By 32-33 Vic, c. 27, s. 117, Larceny Act, Acts 1869, p. 223, it is provided, that any person found committing any offence punishable either upon indictment or upon sumnlary c(>nviction, by virtue of the Act, may be immediately appre- hended without a warrant hif a nii person and taken before a Justice of the Pcr.co to be dealt with according to law. Similar provision is made in regard to coinage ofiences,, 32-33 Vic. c. IH, •. :J;J, Acts 1809, p. 148. 12 IXTBODUCTION. Disturbing Congrnfjations, etc. So also any peace officer present, or other p^i ^.on present, verbally authorized by any Justice of the Peace present, may arrest any person wilfully disturbing, etc., any assemblage of persons for religious worship, etc., 82-33 Vic. c.20, s. 37, Acts 1869, p. 178. Malicious Injury to Property. By 32-33 Vic. c. i:3, s. 69, Acts 1869, p. 243. Any peace officer or the owner of property injured, or his servant, or any person authorized jjy him, may apprehend any person found committing an offence against the Act. Cruelty to Animals. By 32-33 Vic. c. 27, s. 4, Acts 1869, p. 259. Any con- stable or other peace officer, or the owner of animal upon view, or upon the information to peace officer or constable, may seize and secure the offender without a warrant and convey him before a Justice of the Peace to be dealt with according to law. Better Preservation of Peace in the Vicinity of Public JVorks. By the Act 32-33 Vic. c. 24, s. 8, Acts 1869, page 250. Any Commissioner or Justice, Constable, Peace Officer, or any person acting under a warrant in aid of any constable or peace officer, may arrest and detain any person carrying arms unlawfully. Army and Xaiy — Offences Against. By 32-33 Vic. c. 25, s. 7. Deserters may be apprehended and brought up for examination before a Justice of the Peace. Riots and IHotous Assemblies. Acts, 31 Vic. c. 70, s. 4, gives general authority to Justi- ces, Sheriffs, Constables, Peace Officers, and all persons required to aid to sieze and apprehend persons unlawfully, riotously and tumultuously continuing together after pro- clamation made, and to carrj* the persons before the Justice of the Peace of the district where such persons are appre- hended, to be dealt with according to law. INTRODrCTlON. 13 mded ^eace. Tusti- irsous Ifully, pro- istice ippic- Shipping of Seamen. By 36 Yic. c. 129, s. 94, Acts of 1874. The Master or any mate, or the owner, ship's husband or consignee in any place in the Provinces of Quebec, Nova Scotia, New Brunswick and British Columbia, may apprehend without a warrant, a seaman refusing to proceed to sea, when duly engaged to serve, or if found absenting himself without leave. Juvenile Offenders Escapinaiis v. Iiussell, 5 Bing. 354; Coictis v. Dunbar, Moo. & M. 37 ; li. v. Ford, Euss. & Pi. 329. What is a reasonable suspicion of felony, cannot of course, be stated with precision, but it has been always considered that a charge of felony by a person not manifestly unworthy of credit, is sufficient to justify the apprehension: 1 East. P. C. 302. Breach of Peace. — Private Person Interferinrj. Where a breach of the peace is actually being committed, any private person may interfere to prevent it, . though no felony be committed or attempted, after proper warning and calling upon the parties to desist ; and, if necessary, may apprehend and detain any persons taking part in the disturbance : Post. 272, 311. Assistinn Ofricer. Every private person is bound to assist an officer, •demanding his help, in the taking of a felon, or in the suppressing of an affray and apprehending the affrayers ; and if he refuse to assist, he may be indicted and punished ai« for a misdemeanour at common law : 1 East. P. C. 298 ; 4 Hiivrk., c. 12, 8. 1; 1 Hale, 587; lie f j. \. Broun, QviV . I-I. 314. In the case of llcg. v. Brown, it was decided ..at in order to support an indictment against a person for refusing to aid and assist a constable in the execution of his duty, in quelling a riot, it is necessary to prove, 1st, that the constable saw a breach of the i>eace committed ; 2nd, that there was a reasonable necessity for calling on the defendant for his assistance; and 3rd, that when duly called upon to assist the constable, the defendant without any physical impossibility or lawful excuse, refused to do &o ; and in such a case it is no ground of defence that, 16 INTEODUCTION. from the number of rioters, the single aid of the defendant would not have been of any use. Arresting after Breach of Peace Committed, There are authorities to the effect that the officer may arrest the party on the charge of another, though the affray is over, for the purpose of bringing him before a justice tO' find security for his appearance, but the better opinion was always said to be the other way : Roscoe on C. Ev. 262. The law appears to be well settled that when an assault is over, and no further assault or affray is to be appre- hended, and no fresh pursuit as would justify constables in breaking into the house or apprehending the party, that he cannot be apprehended without a warrant : see Ileg. v. Gardner, 1 Moo, C. C, 390 ; Reg. v. Walker, Dears. C. C, 358. In the case of the Queen v. Marsden, L. R., 1 C. C. R. 131, the prisoner assaulted a police constable in the execution of his duty; the constable went for assistance and after an interval ol an hour returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened ; after another interval of fifteen minutes, the constable forced open the door, entered and arrested the prisoner, who wounded one of them in resisting his apprehension, — Held, that as there was no danger of any renewal of the original assault, and as the facts of the case did not constitute a fresh pursuit, the arrest was illegal. Kelly, C.B., in delivering judgment says : " The question in this case is whether there was a lawful apprehension, which depends on whether the attack on the constable in the house was merely a continuance of the struggle which took place on the occasion of the first assault. Between the constable quitting the premises and his returning with the other constables an hour had elapsed, and it is impossi- ble to say that what then occurred, was a continuation of the previous transaction. The original assault and the rights connected therewith were at an end, and I am of opinion independently of authority, that the appprehension was unlawful." INTRODUCTION. 17 If there could have been any doubt upon the subject : Rrf/. V. Walker, (Dears C. C, 358) would be conclusive. Montague Smith, J., says : " There was nothing here to shew any reasonable apprehension that the affray would be continued ; nor was there such a fresh pursuit aR to justify the constable in breaking into the house." Much however will be presumed in favor of an officer of justice when he has reasonable cause for supposing that acts of violence may be continued, and the opinion of a jury may very properly be taken in doubtful cases, in actions brought against peace officers. In Bay ties v. Brcivstcr, 2 Q. B., 375, it was held that a party is justified in giving in charge, and a constable in arresting without warrant, a party who has been guilty of a breach of the peace, If there are reasonable grounds for apprehending its continuance or immediate renewal, but not otherwise ; and the circumstances from which such an inference is raised are for the jury. Ma{jistr(ites. Whatever may be done by a constable or private person in respect of apprehending offenders without warrant, may likewise be done by a Justice of the Peace : 2 Hawk. c. 13» s. 13. So he may lawfully by word of mouth authorize any one to arrest a person who is guilty of a felony or an actual breach of the peace in his presence, and such com- maijd is a good warrant without writing : 2 Hawk. c. 13^ s. 14, 2 Hale, 86. Arrest, When and Where. In order to prevent the escape of the party, an arrest for an indictable offence may be made at any time, on a Sun- day as well as other days, and in the night as weU as dajiime: 1 East. P. C. 32^. ; 5 Bmg. 354, 16 M. & W. 172. How Made. An arrest is usually made by laying hands on the party, and detaining him if he resists. Although an arrest will 18 INTRODUCTION. be good, if ou the ofidcers saying to the party : "I arrest you," the party acquiesces and goes with the ofticer ; although it would Ije otherwise if the party did not acquiesce and made his escnpe. In Gener v. »Sjwr/i, 1 Salk. 79, it was held that if the offi'jcr had touched the party to be arrested, and the party had Ir.^tantly run away, this would have been a perfect arrest, and the running away of consequence, an escape. See lliisscn v. Lucas, 1 C. & P. 153. If arrest is made by a private person, he should, if required, state to the party arrested, the cause of his arrest ; but if the arrest is made by a peace officer, it is sufficient for him to state merely that he arrests in the Queen's name. 1 Hale, 589. In making an arrest, no violence or rudeness should be used. A constable is not justified in hand-cuffing a prisoner unless he has attempted to escape, or unless it is necessary to prevent him doing so ; Wruiht v. Court, 4 B. & C. 596. Every necessary precaution should be observed by the officer to prevent an escape of a prisoner, and in cases of grievous offences, and where the prisoner might be strongly tempted to effect his escape, in dread of the punishment of his crime, the officer would be justified in using all needful means to prevent this ; but in ordinary cases of arrest, no unnecessary violence or harsh means should be used in securing the prisoner. In the case of a private or special Bailiff, either it must appear that the party knew that he was such an officer, or some notification tliereof that the party might have known it, the saying to the party " I arrest you " has been held a sufficient notice, so that if the person using these words be a Bailiff, and have a warrant constituting him such Bailiff, the killing of such officer will be murder : 1 Hale, 461 ; Mackally's case, 9 Coke, 69, C. A private or special Bailiff ought to shew his warrant upon which he acts, 'f it is demanded. Breaking open Windows or- Doors for purpose of Arrest. Demand must be first made. The general rule is appli- xjable alike to criminal as to civil cases as to breaking open INTRODfCTIOS. 19 in order to make an arrest, viz., that before such extremity is resorted to, there must be a previous notification of the business, and a demand to enter on the one hand and refusal on the other : Fost. 320 ; 2 Ha^vk. P.C. cap. 14. rrivikrie — To irluit it cxtrndn. The privilege of a man's house being his castle, applies only to outward doors or windows — to the occupif i of the house or any of his family — who have their ordinary domicile or residence there — and to arrest in thi' first instance. A stranger taking refuge in the house of another, cannot claim the privilege of the house being his castle, but if the doors of a stranger are broken open upon the supposi- tion of the person sought being there, it must be at tlu' peril of finding him there, unless where the parties act under the sanction of a Magistrates Warrant: 2 Hale, 103. 1 East P. C. c. 5, s. 87, or *' if the strangers was to use fraud and to inveigle the Sherift' into the belief that the defendant was concealed in his house for the purpose of favoring his escape, while the officers should be detained in searching or for any other reason, it might he held that he could not take advantage of his own deceit, so as to treat the Sheriff who entered under the false supposition thus induced, as a trespasser, or perhaps such conduct might be held to amount to a license to the Sherifl:' to enter." Smith's note to last case — see also as illustrative of this principle : Grerig v. Wells, 10 Ad. tVr El. 90. Arrests in first Instance. The privilege is likewise confined to arrests in the first instance — for if a man being legally arrested, escape from the officer, and take shelter, though in his own house, the officer may upon fresh pursuit break open doors in order to retake him, having first given due notice of his business and demanded admission and ])een refused. — Fost. 320 : Genner v. SjyarJis, 1 Salk. 79; 1 Hale, 459, 2 Hawk. P.C. c. 14, s. 9. 20 IXTRODrCTION. The law according to Hawkins may be stated to be that, if a party to be arrested be in a house, and the doors be fastened, the doors may be broken open to arrest him, iirst however, demanding admittance and being refused in the following cases — first, upon a capias on an Indictment — second, when one known to have committed treason or felony, or to have given another a dangerous wound, is pursued by a constable or private person with or without a warrant — thu-d, where an affray is made in a house in the view or hearing of a constable, or when affrayers fly to a house and are immediately pursued by a constable — fourth, where a person lawfully arrested, escapes and tiies to a house. The same applies upon a warrant on a charge or suspicion of felony. The privilege of a man's house being his castle, is only to be violated when absolute necessity compels the disre- gard of smaller rights in order to secure public benefit. In Smith v. Burpee, N. Bk. Sup. Court, Stevens' Digest 310. It was held that a constable had no right to break open the doors of a dwelling house to execute a warrant, issued against the owner of the house on a conviction for selling, spirituous Uquors without license. Dwelliiig House — What Comprehended in Term. Within the term " Dwelling House " are comprehended all such buildings as are within in the Cartellage and so are considered parcel of the dwelling house at common law. If a barn is adjoining to and parcel of the house, it can- not be broken into ; if however, the barn be in a field or disconnected with the house, it may be broken into. It will be observed that there is no difference as to the rights of a constable or private person to arrest in cases where it is certain that a felony has been committed or dangerous wound given, and if the offender being pm-sued takes refuge in his own house, either a constable or private person, without distinction may without warrant break open his doors, after' proper demand of admittance and refusal, and it has been held lawful for a private individual INTRODUCTION. 21 to break and enter the bouse of anotber in order to prevent him from murdering anotber wbo cries out for assistance, and if tbc door is fastened and tbere exists reasonable cause to presume, that the life could not otberwise be pre- served than by immediately breaking open the door and entering the dwelling bouse, and possession could not otherwise be obtained, a private person will be justified in breaking and entering the house. See Handcnck v. Baher 2 B. & P. 260, in which case Chambre, J., says " It is law- ful for a private person to do anything to prevent the perpetration of a felony." The material distinction between the power of officers and private individuals is to be borne in mind, viz., that the latter can act only on their own knowledge, whilst the former may proceed on the information of others, Samuel V, Payne, 1 Doug. 359. A private individual in order to justify the breaking open doors without a warrant, must in general prove the actual guilt of the party arrested, and it will not suffice to show that a felony has actually l)een committed by another person, or that a reasonable ground of suspicion existed ; but an officer acting bona fide on the positive charge of another will be excused, and the party making the accusation alone will be liable. Killimi Party resisting or escaping. If the officer or other person in endeavouring to make a legal arrest in cases of felony be resisted, and on opposing force to force he happens to kill the party, the homicide is justifiable : 1 Hale, 494, Fost. 818 ; and the officer or other person need not retreat as in the ordinary cases of defence : 2 Hale, 218 ; but if the arrest would have been illegal, the killing would amount to manslaughter : Fost. 318. So also when a party may be lawfully arrested for felony, and he, knowing the cause, flies so that he cannot be taken, otherwise than by killing him, the constable pursuing him will be justified in killing him, or a private person will, in like manner, be justified, if he can prove that the deceased was actually guilty of a felony : 2 Hale, 118, 119 ; 1 East. 22 INTRODUCTION. P. C. 298. It is otherwise however, in cases of misdemean- our only, in which case a constable will not be justified in killing in pursuit or on re^stance. Legality of Process. The Process vhether Writ or Warrant, must not be defective in the frame of it, and must issue in the ordinary course of justice from a Court or Magistrate having juris- diction of the cause. The officer at his peril is bound to pay obedience to a Process, if the matter be within the jurisdiction of Court or Magistrate, issuing same, although there may have been error or irregularity in the proceed- ings previous to the issuing of the Process, and the officer will be justified in killing those who oppose him in executing it : 1 Hale, 459. Misdemeanours. In oflfences less than felony it is essential that the warrant to arrest should be in the possession of the person seeking to arrest, for the man arrested has a right to see the warrant, and may resist it, unless it is produced, though it is immaterial whetheif he asks for it or not : Cadd v. Cabe, L. E., 1 Ex. Div. 352. The appellant in this case was sum- moned to answer an information charging him with trespass in pursuit of conies. As he did not appear in obedience to the summons, a warrant was issued for his apprehension. The respondent, being a police officer to whom the warrant was directed, but not having it in his possession, attempted to arrest the appellant, who, thereupon committed an assault upon him. — Held, that the appellant could not be convicted upon an information, charging him with assault- ing the respondent in the execution of his duty. IXDICT.VBLE OFFENCES. 2a CHAPTER II. 32 & 33 Victoria Chap. XXX. An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences. [Assented to 22nd June, 1869.] T T T^HEREAS it is expedient to assimilate, amend and con- Preamble. solidate the Statute Laws of the several Provinces of Quebec, Ontario, NovaScotiaand New Brunswick, respecting the duties of Justices of the Peace out of sessions, in relation to persons charged with indictable offences, and to extend the same as so consolidatet' to all Canada : There- fore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : This Act is extended to the Province of British Columbia, see 37 Vic. c. 42 : To Manitoba, see 34 Vic. c. 14 ; to the District of Keewatin, see 37 Vic. c. 21. Making provisions for indictable offences committed in the said District, and triable in Manitoba, or committed in some Province in Canada, and the offender appre- hended in the said District. Also extended to the North-west Territories, as far as respects indictable offences committed in the North-west Territories, and triable in Manitoba, or committed in some Province of Canada, and the offender apprehended in the Nortli-west Territories, see 38 Vic. c. 49 : Sche- dule B. To Prince Edward Island, see 40 Vic. c. 4. !■ In all cases where a charge or complaint (A) is made be- ynr what fore any one or more of Her Majesty's Justices of the Peace otlences a for any Territorial Division in Canada, that any person has Justice of the committed, oris suspected to have committed, any treason or '^^'^^^ ™^y r , •,-,,•, -r • , , grant a war- telony.or any mdictable misdemeanor or otfence, within the j-^jj^^ ^^ cause limits of the jurisdiction of such Justice or Justices of the a ptrson Peace, or that any person gu'lty or suspected to be guilty of charged 24 INDICTABLE OFFENCES. therewith to having committed any such crime or oflence elsewhere out of ^^ '^'"o^S^t the jurisdiction of such Justice or Justices, is residing or ' ■ being, or is suspected to reside or be within the limits of the j urisdiction of such Justice or Justices, then, and in every such case, if the person so charged or complained against is not in custody, such Justice or Justices of the Peace may 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. Ifa warrant is ®» 1° ^^^ cases when a charge or complaint for an indict- to be issued, information to be upon oath, etc. If a person be apprehended in one divi- sion for an of- fence commit- ted in an- other, he may be examined in the former, and commit- ted in the lat- ter. able offence is made before any Justice or Justices, if it be intended to issue a Warrant in the first instance against the party charged, an information and complaint thereof (A) in writing on the oath or affirmation of the informant, or of some witness or witnesses in that behalf, shall be laid before such Justice or Justices. 46* Whenever a person appears or is brought before a Justice or Justices of the Peace in the Territorial Division wherein such Justice or Justices have jurisdiction, charged with an ofifence alleged to have been committed by him within any Territorial Division in Canada wherein such Justice or Justices have not jursdiction, such Justice or Justices, shall examine such witnesses and receive such evidence in proof of the charge, as may be produced before . him or them within his or their jurisdiction ; and if in his or their opinion, such testimony and evidence be sufficient proof of the charge made against the accused party, the Justice or Justices shall thereupon commit him to the Com- mon Gaol for the Territorial Division where the offence is alleged to have been committed, or shall admit him to bail as hereinafter mentioned, and shall bind over the prosecutor (if he has appeared before him or them) and the witnesses, by recognizance as hereinbefore mentioned. It has been long settled that if a man commit a felony in one county and go into another county, a Justice of the latter county may upon information given, issue a warrant to apprehend him, and take his examination and the informa- tion against him, and may commit him to the gaol of the county in which offence committed, and bind over the witnesses to give evidence at the trial, and, in fact, may proceed as if the offence had been committed within his juris- diction. JURISDICTION OF JUSTICE. 25 upon 3hend If it is not made a condition precedent to the Justices acting, that an information should be laid, and deposed to on oath, the want of an information would seem not to deprive the Justice of jurisdiction, if the party is brought before him, and charged with the offence, if the Justice has jurisdiction to deal with the matter. According to the judgments delivered in the late case of Ihij. v. UiKjlu's, L. R., 4 Q.B., Div. 623, if a charge is made before the Justices of an indictable offence committed within the jurisdiction by a person then bodily present, the Justices are bound to take cognizances of it. In this case where a party was in the presence of the Justices, but where no infoimation in writing or on oath was laid, Huddleston B. says : " I entertain no doubt that there need not have been an information on oath or w^arrant to give the Justices jurisdiction to hear and commit or discharge." The cases that are quoted to shew the necessity of an informa- tion, are where the Statute requires such to be done as a condition precedent to jurisdiction attaching, but where the Justice has jurisdiction and the provisions in the statute are merely for the purpose of bringing people not already in custody before the Justices, an information in writing or under oath would not seem to be necessary, if party is brought up and charged instaiiter. If a person is before the Justices and is informed of the charge against him, and he desires there and then to meet it and requires no adjournment, it would seem unreasonable that the Justices should refuse to hear the charge, because the party is not brought before them by summons on an information. The summons and also the warrant are mere processes for the purpose of bringing the party complained of before the Justices, and as said by 3 s.c.i-i. If a person be apprehended in one division for an offence committed in another, he may be ex- amined in the former, and committed in the latter. INDICTABLE OFFENCES. If a person be apprehended in one division for an offence committed in another, he may be ex- amined in the former, and committed in the latter. Lopes, J., in above case, have nothing whatever to do with the jurisdiction of the Justices. If a warrant is issued without the provisions^ of the statute being followed, the Justice would be liable in trespass for so doing, but this it seems would not afifect the jurisdiction to deal with the offender if brought before the Justice and there and then charged with offence. See remarks on above case of Reg. v. HugheSy post under Summary Conviction Act. Justices have a right to exercise their discre- tion in refusing to hear and act upon informa- tion, and may leave the complaining party to originate his prosecution before a grand jury. Reg. V. Ingham, 14 Q. B., 396. The real object of examinations before Justices- is that the party accused may be put under such terms as will make it certain that he will be forthcoming for trial, and where there is no danger that he will not be forthcoming for trial, they may think that Justice would be prejudiced by hearing the information. Earle J. ib. But it is desirable that the prosecutor in all cases, where an indictment is to be preferred,, should go in first instance before the Justice. By section 28 of Chapter 29, 32-33 Vic, Stat, of Canada, it is provided that no Bill of Indictment for perjury, subornation of perjury, conspiracy, obtaining money or other propert}'' by false pretences, keeping a gambling house, disorderly house, or any indecent assault, and by Statute 40 Vic, Chap. 26, also nuisance, forcible entry or detainer, shall be presented tO' grand jury, unless party has been bound by recognizance to prosecute, or by direction of Attorney-General or Solicitor-General or Judge of Court. In such cases, the Magistrate should INFORMATION OR COMPLAINT. 27 If a person be apprehended in one division for an ofience committed in another, he may be ex- '"■ amined in the former, and committed in the latter. not refuse to entertain the information unless for the most satisfactory reasons. INFORMATION OR COMPLAINT. The party who knows or suspects that an indictable offence has been committed, ^oes before the Justice of the Peace and gives him the information, stating if necessary his grounds of suspicion on which the charge is founded. The information should be taken as nearly as possible in the language of the party. The Magistrate may examine other witnesses, if, in his discretion he thinks it necessary, before grantin g a summons or warrant, so as to satisfy himself of the reasonable grounds for o^ipposing the party to be guilty, but in cases where the credibility of the complainant or witness is such as to lead the Magistrate to believe him, and the m atters stated by him are positive as to the offence charged, no other witness should, at this, stage of proceedings, be examined. The informa- tion or complaint of the informer should be sufficient. It is well however for the Magistrate to be well satisfied that the offence complained of, is an indictable offence, and not merely one of a civil nature. It not unfrequently happens that cb.arges are made which are merely civil, not criminal wrongs ; persons for example, are sometimes accused of obtaining money or other property under false pretences, when, in fact, the matter complained of, only gives rise to a civil remedy. SUMMONS OR WARRANT. Sections 2, 10, 13, 16. 2. In all cases the Justice or Justices to whom the charge In what case or complaint is preferred, instead of issuing in the first ^^^ party may instance his or their Warrant to apprehend the person ^^^ summoned u J 1 J • . .-1 , , , ■ instead of charged or complamed agamst, may, it he or they tf'ink lit, 28 INDICTABLE OFFENCES. issuing a war- rant in the first instance. Where sum- mons is to be issued, infor- mation to be under oath. Upon com- plaint, Justice may issue Summons or Warrant for appearance of party charged Ifp :\- !■• ;■.;..! issu" a rant. issue his or their Summons (C) directed to such person, requiring him to appear before the 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 the Summons in manner hereinafter mentioned he fails to appear at such time and place, in obedience to such Summons, the 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 the 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 Division, to answer to the charge or complaint, and to be further dealt with according to law ; But any Justicj or Justices of the Peace may, if he or they see fit, issue the Warrant hereinbefore first mentioned, at any time before or after the time mentioned in the Summons for the appearance of the accused party. I0> When it is intended to issue a Summons instead of a Warrant in the first instance, the information and complaint shall also be in writing, and be sworn to, or aiBrmed in man- ner aforesaid, except only in cases where by some Act or Law it is specially provided that the information and complaint may be by parole merely, and without any oath or affirmation to support or substantiate the same. 13. Upon information and complaint as aforesaid, the Jus- tice or Justices receiving the same may, if he orthey think fit, issue his or their Summons or Warrant as hereinbefore di- rected, to cause the person charged, to be and appear as therein and thereby directed : and every Summons (C) shall be directed to the party so charged by the information, and shall state shortly the matter of such information, 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 issues the summons, or before such other Justice or Justices of the Peace for the same territoral Division as may then be there, to answer to the charge, and to be further dea't with according to law. LC". f.{ the person served does not appear before the , ..re or Justices, at the time and place mentioned in the '« .^' ions, in obedience to the same, the Justice or Justices ;■-. issue his or their Warrant (D) for apprehending the party so summoned, and bringing him before him or them, or before some other Justice or Justices for the same Territorial Division, tc answer the charge in the information and com- plaint mentioned, and to be further dealt with according tc law. SUMMONS OR WARRANT. 29 By section 2, the Justice has discretionary if party sum power to issue a summons (Form C) in the first ^°"atte'nd!^ instance, instead of a warrant, and if party failsjusticfimay , ... 1 , .• 1 • issue a war to appear at time and place mentioned m sum- rant, mons, a warrant may be issued (FormD). This course however, does not prevent the issuing of a warrant at any time before or after the time mentioned in the summons for the appearance of the party. Where the offence is not of an aggravated nature, and the party accused is not hkely to abscond, a summons would be the more prefer- able course in first instance. A warrant may be issued on a Sunday as well as on other days, see section 8. By section 10, the information or complaint requires to be under oath as well in cases where a summons is issued as a warrant, unless the proceedings are had under some special Act pending for parole statement or otherwise. Issue of Summons — Requisites of Summons. B} section 13, a summons, if issued instead of a warrant, shall, be directed to the party charged by the information, and should state shortly the nature of the information, and shall require the party to whom it is directed to be at a certain time and place, therein mentioned, before the Justice who issued the same, or before some other Justice or Justices of the Peace, for the same Territorial Division as may then be there, to answer the charge and to be further dealt with according to law; see form of summons (C.) Under section 16, the Magistrate has power to issue a warrant, if summons is disobeyed ; he should see that the oath has been made, of the manner of service of summons, as provided for by sections 14 and 15. 80 INDICTABLE OFFENCES. In;'.ictable off-inces com- mitted on the high T las, etc. .n which the Admirality of England has jurisdic- tion, or on land beyond the seas. 3i In all cases of indictable offences committed on the high seas, or in any creek, harbour, haven or other place, in which the Admiralty of England have, or claim to have juris- diction, and in all cases of offences committed on land beyond the seas, for which an indictment may be preferred or the of- fender may be arrested in Canada, any one or more Justice or Justices for any territorial division in which any person charged with having committed, or being suspected to have committed any such offence, shall be or be suspected to be, may issue his or their warrant (D 2) to apprehend such per- son, to be dealt with as therein and hereby directed. As to tlie jurisdiction of the Admiralty over offences committed on the High Seas, a very comprehensive and elahorate discussion of this matter took place in the case of The Queen V. Keyn, L.R., 2 Ex. Div. 63 The prisoner was indicted at the Central Criminal Court for man- slaughter. He was in commimd of a foreign ship, and was a foreigner, passing within three miles of the shore of England, on a voyage to a foreign part ; and whilst within that distance his ship ran into a British ship and sunk her, wiiereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter, by English law ; Held, by the majority of the Court that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged. The question was much discussed as to what was High Sea, within the Realm of England, and it was held that the offence under the above facts, unless cognizable as having been com- mitted on what may be called the Territorial Waters of Great Britain, was not one for which the party could be indicted in England. What those Territorial Waters were, was held to extend only to the limits of the Eealm, which consisted of the land within the body of the Counties, and all below high water mark was part of the High Seas, outside such jurisdiction, and that any SUMMONS OR WARRANT. 81 -enlargement of the area could only be effected by Act of Parliament; and that upon the High Seas, the Admiralty jurisdiction was confined to British ships, and that the defendant having been a foreign subject, on board a foreign ship on a foreign voyage, and on the High Seas, outside the Realm, at the time the offence was committed, is not amenable to the laws of England, and therefore no jurisdiction to try him. Had the offence been committed on board a British vessel the foreigner would have been liable. As to offences committed on land beyond the seas, it was held in the case of The Queen v. Eyre, L. E., 3 Q. B., 487, that a Magistrate has jurisdiction to entertain the charge, he having jurisdiction in the County where the defendant is found to be, and has jurisdiction to deal with such offence, in the same manner as with any other offence committed within his jurisdiction. The section of the English Act in regard to this matter is similar to the section 3 of the Do- minion Act, and is intended to embrace every description of indictable offence, and to deal with same as in other proceedings where offence is committed within the territory of the Magis- trate's jurisdiction. Indictable offences com- mitted on the high seas, etc. in which the Admirality of England has jurisdiction, or on land beyond the seas. Sections 4, 5, 6, 7. 4a In case an indictment be found by the Grand Jury in Warrant to any Court of Criminal jurisdiction, against any person then apprehend at large, and whether such person has been bound by any P^rty agamst T, ■ . . ^ . . . whom an in- Recognizance to appear to answer to any such charge or not, (4;p»jv,gjjt is and in case such person has not appeared and pleaded to the found. indictment, the person who acts as Clerk of the Crown or Chief Clerk of such Court shall, at any time at the end of the term or sittings of the Court, at which the indictment has been found, upon application of the Prosecutor, or of any person on his behalf, and on payment of a fee of twenty cents, grant to such Prosecutor or person a certificate (F) of such indict- ment having been found ; and upon production of such Cer- tificate to any Justice or Justices of the Peace for the Terri- 82 INDICTABLE OFFENCES. Commitment, or bail. If person in- dicted be al- ready in prison for some other of- fence, Justice may order him to be de- tained until removed by writ of habeas corpus or otherwise discharged. Not to pre- vent Bench Warrants issuing. torial Division in which the offence is in the indictment alleg- ed to have been committed, or in which the person indicted resides, or is supposed or suspected to reside, or be, such Jus- tice or Justices shall issue his or their Warrant (G) to appre- hend the person so indicted, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices- for the same Territorial Division, to be dealt with according to law. Ba If the person be thereupon apprehended and brought before any such Justice or Justices, such Justice or Justices, upon it being proved upon oath or affirmation before him or them, that the person so apprehended, is the person charged and named in the indictment, shall, without further inquiry or examination, commit (H) him for trial or admit him to bail in manner hereinafter mentioned, 6i If the person so indicted is confined in any gaol or prison for any other oftence than that charged in the indict- ment at the time of such application and production of such Certificate to the Justice or Justices, such Justice or Justices, upon its being proved before him or them, upon cathor affir- mation, that the person so indicted and the person so confined in prison are one and the same person, shall issue his or their Warrant (I) directed to the Gaoler or Keeper of the gaol or prison, in which the person so indicted is then confined, com- manding him to detain such person in his custody, until, by Her Majesty's Writ of Habeas Corpus, or by order of the proper Court he be removed therefrom for the purpose of be- ing tried upon the said indictment, or until he be otherwisa removed or discharged out of his custody by due course of law. 7. Nothing in this Act contained shall prevent the issuing or execution of Bench Warrants, whenever any Court of com- petent jurisdiction thinks proper to order the issuing of any such Warrant. It is not always the case that a preliminary investigation has been had before a Magistrate and the party bound over for trial, nor is it necessary that such should be done before an indictment can be found, except when otherwise specially provided for by statute, as in cases mentioned in Act, 32-33 Vic. 29, s. 28, and 40 Vic. c. 26. Evidence may be laid before the Grand Jury at the meeting of the Court having Criminal Jurisdiction, and it sometimes may happen that SUMMONS OR WAKllANT. 88 a crime mav have been committed on same day, ^°* *o P"^*- Til i ii.-<. i'- 1 ^'^"t Bench and the presentment of information in such case warrants may be at once made before the Grand Jury, >^suing, who may, if the evidence is sufficient, find a True Bill. The party accused may, however, not be under arrest, and in such case if it is desired to proceed with the trial before a petit jury at sit- tings of Court, a Bench Warrant may issue to arrest the accused, (see section 7,) but il there is no likelihood of having party at once arrested, or for other reasons it is deemed expedient to delay the trial of case, the prosecutor is entitled to have a certificate granted to him of such indict- ment having been found, and this certificate is the justification to the Justice to issue his war- rant for the arrest of accused, who, when arrested, is to be dealt with as in case where the Magi- strate has made an order of committal on a pre- liminary examination — committing him for trial to the next Court of Criminal Jurisdiction, or admitting him to bail, in cases where he has power to do so. It will be borne in mind that sections 52 and 56, authorize the Justice or Justices to admit to bail, when they can judge of the evidence ad- duced, taken before such Justice or Justices, but when they have no opportunity of determining as to the nature of the case and the evidence in support of same, their power cannot be exer- cised so as to admit to bail in cases of felony, where a certificate is produced of an indictment having been found, so that it would seem that they must commit to goal, in which case the party would be privileged to apply to the Court or Judge for bail. As, however, the Justice has power to admit to bail in all cases of misde- meanor, he ought to bail the party where the indictment is for such lesser offence only. S4 FNDICTABLE OFFENCES. Warrant may be issued on Sunday, Detainer When Party already in Goal for Other Offence. If the party is in goal already for otlier offence, then he is to be detained as provided for in section 6. 8. Any Justice or Justices of the Peace may grant or issue any Warrant as aforesaid, or any Search Warrant, on a Sun- day as well as on any other day. This section allows the arrest of a ]>arty on a Sunday as vrell as on other dayt^ and docs not seem to confine the arrest to cases of felony, but to any indictable offence, as this section must be read in connection with the previous sections which mentions misdemeanors. It does not however authorize the issuing of a summons on a Sunday, although as incident to the right to issue a warrant to arrest, an information or complaint may be laid, and necessary preliminary examination for the pur- poses of arrest may be had on a Sunday. 9« In all cases when a charge or complaint for an indict- able oifence is made before any Justice or Justices, if it be intended to issue a Warrant in the first instance against the party charged, an information and complaint thereof (A) in writing on the oath or affirmation of the informant, or of some witness or witnesses in that behalf, shall be laid before such Justice or Justices. " See remarks under Secticn i." If a summons 10. When it is intended to issue a Summons instead of a is to be issued, Warrant in the first instance, the information and complaint " shall also be in writing, and be sworn to or affirmed in man- If a warrant is to be issued, information to be upon oath, etc, to be upon oath, etc. ner aforesaid, except only in cases where by some Act or Law it is specially provided that the information and complaint may be by parole merely, and without any oath or affirma- tion to support or substantiate the same. " See remarks under Section 2." No objection II. No objection shall be taken or allowed to any infor- allowed for mation and complaint for any alleged defect therein in sub- in informs^'' stance or in form, or for any variance between it and the evi- dence adduced on the part of the prosecution, before the SUMMONS OR WARRANT. 86 Justice or Justices who take the examination of the witnesses tion or com- in that behalf. plaint— *' Set remarks under Section i, Summary Conviction Act, post," " Waiver ofObiection." When the Mtigistrato has observed fhe pre- liminaries required to give him jurisdiction in any particular, and when he has a right to adjudicate upon the question as to the propriety of issuing a warrant, no mere error of opinion or judgment will render him liable. lie is bound to decide in such a case, and unless he acts €orruptly the law will not allow him to be punished, because he did not decide rightly. Wlien, however, a Magistrate acts in bad faith, and grants a warrant against an innocent man, without oath, being first made on information, or upon an oath of facts and circumstances, affording no rational ground of suspicion what- ever, he will subject himself to an action : 1 €hitty, Cr. L. 34, 2 Hawk. P. C. c. 13, s. 18. If the Magistrate has jurisdiction over the matter of complaint and person, and as regards time and place, and acts in his duty as such Magistrate, a mere irregularity will not make him liable without proof of malice, and want of probable cause, although he may be made liable as not having jurisdiction, and in not having pursued the statutory requirements to give him such. In a case decided in the Supreme Court of New Brunswick : Birch v. Perkins, 2 Pug. 327, it •was held, that the Magistrate having jurisdiction over the subject-matter of the complaint and over the plaintiff's person, trespass would not lie against him without proof of malice, or want of probable cause, where an irregularity in summons pnd copy existed, in not containing the return day, and where the party against "whom summons was issued did not appear, and a 36 INDICTABLE OFFENCES. ill ^u °!^J?';^'°° warrant was thereupon issued against him, upon alleged detect "which he was imprisoned. Where the Magis- in informa- ^rate has no iurisdiction, the question of reason- t:on or com- '> ' ^ plaint— able and probable cause does not arise. The defendant, a Justice of the Peace, issued a warrant to arrest the female plaintiff on an information stating that she did " unlawfully iake and carry away from his (the informant's) protection, her daughter, S. W." The Justice preferred to act under the Domi- nion Statutes, 32-33 Vic. c. 20, s. 50.— Held, in an action for assault and false imprisonment, that the defendant had no jurisdiction to issue a warrant on this information, and was liable to an action of trespass, and that the question of reasonable and probable cause can only arise where the Justice has jurisdiction. Whittier and wife V. Dibble, 2 Pug. 243. It is the duty of the Magistrate to consider well what is sworn to, and to be well satisfiea of the reasonable cause of complaint, and not to grant any warrant heedlessly, groundlessly, or malici- ously, and to see that such cause exists, as might p lead a discreet and impartial man to suspect the party to be guilty : 1 Chit. C. L. 34; 2 Hawk. P. C, c. 13, s. 18. Allegations of mere suspicion are not suffi- cient, the facts and circumstances should be laid before -i-m, and sufficient made to appear, that a a crime has been committed, and that there is reasonable cause for charging the individual complained against. It is sufficient if the testi- mony shews a probable case of guilt. Instances arise where the application for Criminal Process is made to gratify revengeful feelings, or to procure the conviction of some person of an infamous crime, who is likely to be a witness against the complainant, and thus to SUMMONS OE WARRANT. 87 disquality or to afiect his testimony; and from ^" <^^Jfc^'<^" > / 1 • • • .1 , P , allowed for want of searching inquiiy on tlie part oi the alleged defect Magistrate, or an easy carelessness, the pubHc 1" >"fo""''- "^ ' *' ' ^ tion or coin- are subjected to the expense of a groundless plaint- prosecution, and the process of the law thus^^ ' prostituted to fraud and oppression. When the complaint has been reduced into writing, it should be read over to the complain- ant or witness, so that he may well understand it, and have an opportunity of correcting it, if need be ; it should then be signed In- the complainant, or if he is unable to sign, it should be certified that it was read over to him, the complainant should affix his mark, and the Magistrate shoidd sign, after having sworn the complainant to the complaint made, as well as witness the sign. The information need state only the offence with intelligible certainty and i^articularity, care being always had, that the offei.3e charged is an indictable offence, and committed within the limits of the jurisdiction of the Justice, or under the provisions of section 46. Where special proceedings are had for offences committed in another County or place, the Justice should be satisfied that the charge is an indictable offence, before he commits the party. A Justice of the Peace is liable in an action for false imprisonment if he commits a person for trial who is brought before him on a criminal charge, without iidiing an examination respecting the charge, as required by law. An examination taken beyond the limits of his jurisdiction, except in cases provided for by the Statute, would be a nullity. See Xary v. Owen, Burton's N. B'k. Reports, 377. 38 INDICTABLE OFFENCES. Search War- rant — Lar- ceny or felony respecting property. Warrant to apprehend parties must be under the hand and seal of Justice — to whom addressed. Sections 12 and 17. 12a If a credible witness proves upon oath (E i) before a Justice of the Peace, that there is reasonable cause to suspect that a.vf property whatsoever, on or with respect to which any larceny or felony has been committed, is in any dwelling house, outhouse, garden, yard, croft or other place or places,, the Justice may grant a Warrant (E 2) to search such dwell- ing house, garden, yard, croft or other place or places, for such property, and if the same, or any part thereof be then founds to bring the same and the person or persons in whose pos- session such house or other place then is, before the Justice- granting the Warrant, or some other Justice for the same- Territorial Division. 17. Every Warrant (B) hereafter issued by any Justice or Justices of the Peace to apprehend any person charged with any indictable offence, 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 Territorial Division within which the same is to be executed, or to any such Constable and all other Constables or Peace Officers in the Territorial Division within which the Justice or Justices issuing the same has jurisdiction, or generally to all the Constables or Peace- Officers within such last mentioned Territorial Division, and it shall state shortly the oftence on which it is founded, and shall name or otherwise describe the oflfender, and it shall order the person or persons to whom it is directed to appre- hend the offender, and bring him before the Justice or Justices- issuing the Warrant, or before some other Justice or Justices- of the Peace for the same Territorial Division, to answer to the charge contained in the information, and to be further dealt with according to law. Search Warrant. This warrant is not to be granted without oath made before the Justice in terms of the section. The oath need not positively and directly aver that the property has been stolen. Upon a representation to a Magistrate that a person has reason to suspect that his property has been stolen, or is concealed in a certain place, the Magistrate may lawfully issue his- warrant to search the place and bring the occupier or owner before him, Elsec v. Smith, 1 D. & E. 97 ; although it is well for the Magis- SEARCH W.UmANT. 39- trate before granting a warrant to ascertain as Warrant to • 111 IP 1 • n apprehend fully as possible the grounds of complainant s parties must suspicion, and to satisfy himself that a reasonable han"d and seal ground < f suspicion exists. The oath (E.l, in of justice - form of Act given), made by a creditable witness addressed. will be a sufficient authority to the Magistrate to issue his warrant. If it is wrongfully issued, the party who causes it to be issued must make reparation to the person injured, but the Magistrate would not be liable. If the party making oath has sworn falsely or without any reasonable grounds to warrant his suspicion, he will be liable in trespass for putting the law in force without just cause, and the Magistrate would make himself liable if he issues a search warrant without sufficient oath of party, or if he acts corruptly in the granting of same. In cases of information generally, a person is- not liable to an action for false imprisonment^ who merely lodges a complaint before a Justice, and leaves the proceedings to be taken in the discretion of the Justice, if however he interferes in a manner beyond what he might do, and the arrest and imprisonment should turn out to be unjustifiable, he will render himself liable. See Broicn v. Moore : 2 Pug. N. B'k. 409. The place in which search is allowed to be made sliou'd be particularly designated. The M, ' «trate may order that the defendant's person, or clothes, or trunk be searched, for goods alleged to be stolen, or for coin, bank notes, papers, and the like charged to have been forged or counterfeited by him, and such goods or articles thus found, may be taken from him and kept by the Magistrate to be used in evidence on the trial in Court., and subsequently disposed of 40 INDICT.UJLE OFFENCES. to whom addressed Warrant to as the court may direct ; similar search may be parties must made for weapons or instruments by which a ^^ ""'^^V'^^ . ii^urder, manslauditer or assravated assault and hand and seal ' '^ _ "^"^ of Justice— battery was committed, or for implements or utensils In' which a burglary, robbery, forgery or other offence was perpetrated. The power of search, may properly extend for any articles or things connected with the com mission of the oflfence charged, and furnishing evidence of it. Hestoration of Properiji. If the constable has taken possession of the property found on the person of the prisoner, the Court will order to be restored to him that portion of it, which is not required as means of proof at the trial, or which does not fairly appear to be the produce of the crime with which he is charged. Duty of Officer in Executing Warrant. In executing a Search Warrant, the officer must be careful strictly to pursue its directions. As the warrant should distinctly specify the goods to be seized, the officer should not take any but those specified. Where, therefore, a warrant was granted expressly to seize stolen sugar, and the officer seized tea, he was held to have exceeded his authority, and to be liable fo the party aggrieved for a trespass : Pine v. Messenger, Q. B. & P. 158. So also, where the constable having a warrant to search for specific articles alleged to have been stolen, found and took away these and certain others supposed to be also stolen, but not mentioned in the warrant, and not likely to be of use in substantiating the charge of stealing the goods that were specified, iu was held that the constable was a trespasser : Crossin SEARCH WARRANT. 41 V. Cundy, 9 Dow. & Ry. 224 ; 6 Barn & Cress, 332. ^^^'^^^"^^^^J," In this case, however, Abbot, C. J., said: " If parties mr;st these articles had been likely to furnish evidence hancTand fe^al of the identity of the articles stolen and men- of justice— tioned in the warrant, there might have been addressed. reasonable ground for seizing them, although not specified in the warrant ;" and he added, that he expressed himself thus, to prevent the sup- position that a constable seizing articles not mentioned in the warrant, is necessarily a tres- passer. The duty of an officer and those acting in aid of him in executing a Search Warrant, is well and legally discharged, if, upon making the search required and finding goods corresponding in description with those directed to be searched for, he seizes such goods and brings them with the person whose jn-emises he is directed to search, before a magistrate for further proceed- ings. The officer is not made the judge in the last resort, of the identity of the goods with those stolen. Although the goods be not found, the officer will not be responsible if he has acted in obe- dience to the warrant : 3 Esp. 135, 2 B. & P. 160. Breaking Open Doors, etc. — See Note. The constable is to keep the warrant in his possession, and if taken from him, may coerce the person improperly refusing to deliver it up, using however, no unnecessary violence : 3 Car. & P. 31. The party who had the custody of the goods should be discharged if they were not stolen; if they were stolen, not by him, but by another per- son who sold or deliver'^d them to him, and it ap- pears that he was ignorant of the mode in which they were procured, and mnocent of having any 4 P.C.L. 7< 42 INDICTABLE OFFENCES. Warrant to| apprehend parties must pa be under the addressed. knowledge of the theft, he may be discharged ; but bound over to give evidence as a witness hand and seal ^S^^^st the person suspected of having stolen of Justice— them. If, however, it appears that he knew the °^ ""^ goods to have been stolen., then he should be either committed as for a felony, if the original offence of stealing or taking such goods, appears to have been a felony : 2 Hale, 161 ; or, bailed and bound over to answer the charge, if the case requires it. So also, if the offence was a misde- meanour. The pro3oed ;n Search Warrants should be strictly leg ., .j .l if the party procuring the warrant has no ground for his proceedings, and is actuated by mar-'iou;- otives, an action will lie against him. A Search Warrant may issue on a Sunday. See section 8. Warrant to Apprehend Party. Section 17, provides that every warrant to apprehend parties must be under the hand and seal of the Justice or Justices who issue same. Any impression purporting to be his or their seals will be sufficient as a seal : R. v. St. Fault 7 Q.B. 232. See post Summary Conviction Act. Direction of Warrant. It may be du'ected to all or any of the con- stables or other peace officers of the territorial division, within which, the Justice or Justices issuing same have jurisdiction, or generally to aU the constables or peace officers within such last mentioned division. Statement of Offence. The offence on which warrant is founded, is to be shortly stated iu warrant. WARRANT TO APPREHEND. 43 Name of Offender. The name of the offender is to be stated, or Warrant to if unknown, he is to be otherwise described. part'ies^must The warrant should not be general to ^'^rest ^^jJ^J^^^^j^^ all persons suspected, but should direct the ofti- of justice— cer to apprehend some particular individual. A addressed. warrant to apprehend all persons suspected or guilty of a crime, without naming or describing any particular person, would be illegal and void for uncertainty, for it must not be left to the constable or peace officer to judge of the grounds of suspicion. The magistrate is the judge of this. It is of the essence of a warrant, that it should be so framed, that the officer should know whom he is to take, and tliat the party upon whom it is executed, should know whether he is bound to submit to the arrest. If the name inserted in the warrant be not the right one, or be fictitious only, the arrest cannot be justified, even though the person arrested be the one intended, unless he is known as well by the name in the warrant, as by his true name : Shadgctt v. Clipson, 8 East. 328. Name of Party Unknown. If the name of the party be unknown, the warrant may be issued against him by the best description the nature of the case will allow, as, ** The body of a man whose name is unknown, but whose person is well known, and who is employed as the drover of cattle, wears a white hat and has lost his right eye :" 1 Chit. C.L. 39 ; 1 Hale, P. C. 577 ; Hoye v. Bash, 1 M. &. G. 775. A warrant to apprehend, leaving a blank for the christian name of the person to be appre- hended, and giving no reason for omitting it, but describing him only, as, the son of J. S. L. T 44 INDICTABLE OFFKNXKS. to whom addressed Warrant to (it appeared that J. S. ].. had four sons all liv- apprehend . . , . , parties must ^"^f^^ i" Jiiio liuuse) aiid stating the charge to be hand"and seal ^^^' assaulting A., witliout particularizing the of Justice- time, place, or ai\v other ciiuamstances of the assault, is too general and uaspecitic : Hex. v. Hood, 1 M. C. C. 281. The warrant should not be left in blank to be filled in afterwards by the ofHcers or party, and if the name of the party or the officer be insert- ed without authority, after the issuing of the warrant, the arrec'j will be illegal, and the per- son executing it, will not be protected in proceed- ing under it. Direction to Airprchend. — lletuvu of Warrant. The warrant shall order the person or i3ersons to whom it is directed, to apprehend the offender and bring him before the Justice or Justices issuing the warrant, or before some other Jus- tice or Justices of the Peace for the same territorial division, to answer to the charge contained in the information, and to be further dealt with according to law. Section 13-18. Issue of Siitnnions — Requisites. 13. See section and remarks under section 2. Service of summons — by whom to be ser\'ed — manner of service. Proof of ser- vice — by whom and how made. 14. Every such Summons shall be served by a Constable or other Peace Officer upon the jierson to whom it is directed, by 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 usual place of abode. 16a The Constable or other Peace Officer who serves the same shall attend at the time and place, and before the Justice or Justices in the Summons mentioned, to depose, if necessary, to the service of the Summons. 16. 17. Summoned Party not Attending. See section and remarks under section 2. War'rant to Apprehend Party. See section and remarks under section 12. SUMMONS OR WARRANT. 45 I8> It shall not be necessary to make the Warrant return- Warrant may able at any particular time, but the same may remain in force r^mam in ,., /, force until until executed. executed. The warrant of a magistrate is not returnable at any particular time, and it continues in force until it is fully executed and obeyed. The precise time, when the party is to be brought before the magistrate for examination, is never stated. It is otherwise where a sum- mons is issued, (see section 13). Sections 19 and 20. I9> Such Warrant may be executed by apprehending the offender at any place in the Territorial Division within which the Justice or Justices issuing the same have jurisdiction, or in case of fresh pursuit, at any place in the next adjoining Territorial Division, and within seven miles of the border of the first mentioned Territorial Division, without having the Warrant backed, as hereinafter mentioned. 20a In case any Warrant be directed to all Constables or other Peace Officers in the Territorial Division within which the Justice or Justices have jurisdiction, any Constable or other Peace Officer for any place within such Territorial Divi- sion may execute the Warrant at any place within the jurisdic- tion for which the Justice or Justices acted when he or they granted such Warrant, in like manner as if the Warrant had been directed specially to such Constable by name, and not- withstanding the place within which such Warrant is executed be not within the place for which he is Constable or Peace Officer. On what Conditions Constables may Execute Warrant. By section 20, the execution by a constable is not confined to a constable within his peculiar district, provided the execution is within the territorial division or county, in which the magistrate has jurisdiction, and the constable such within the district or county. Persons from another county coming to assist the constables of the county, who make the arrest, are entitled to like protection ; R. v. Chasson, 3 Pug. 546, N. Bk. How and where a war- rant may be executed — Fresh pur- suit. On what con- ditions con- stables, etc., may execute warrant. 40 INDICTABLE OFFENCES. :?i:i ill Sheu'infi ll'arrant — Ritfht of Party — Known Offin'i'. On what con- In case of a public officer or bailiff recognized stables Ttc *^"*^ publicly known as such acting in his own may execute district, liis authorit}' is considered as a matter of notoriety, and upon this ground, though the warrant by which he was constituted bailiff be demanded, he need not shew it, and it is sufficient if he notify that he is the constable and arrests in the Queen's name, but it is otherwise in the case of a writ or process against the party; both a public and private bailiff, where the party submits to the arrest and demands it, are bound to show at whose suit, for what cause and out of what court the process issues and where returnable, (see Golliard v. Laxton, 2 B. & S. 363) ; but if he resists immediately, and by his own wrongful act prevents the officer from doing his duty, it will be no excuse, that he did not tell the party. The officer is never required to part with the possession of the warrant. In cases of arrest authorized to be made with- out warrant, it is sufficient for a constable to state merely that he arrests the party in the Queen's name, but a private person in general must state, if required, the cause of arrest to the party. Breaking Open Doors — Right to. — See Ante. Airest — Duty of Officers on Making. When the officer has made his arrest, he is to take the party before the Justice who issued the warrant, either before the Justice who issued the warrant, or some other Justice or Justices hav- ing jurisdiction over the person and offence, according to the import of the warrant, the power of election is vested in the officer, not in the prisoner. DISTANCE FROM TERRITORY. 47 If, however, the time be unreasonable, as in On what Con- or near the night, whereby he cannot attend the stabies \"tc' Justice, or if there be danger of a rescue, or the may execute party be ill, and unable at present to be brought, he may, as the case shall require, detain him in a house till the next day or until it may be rea- sonable to bring him : 2 Hale, 119, 120. Unless under such exceptional cases, the offi- cer is bound to carry the party accused before the magistrate immediately: Wright \. Court, 4 B. & C. 696. Where the charge is of a trifling nature, and the defendant is of good repute, and no proba- bility of his absconding, the officer sometimes takes the word of the party for his appearance before the magistrate, after having arretted him, and if in such a case, the party should fail to keep his promise, there is no well founded rea- son why a second arrest should not be made on same warrant, which remains in force, until executed, and obeyed : Peake's Reports, 234 ; Bac. ab. Constable D. If an escape is made without the concurrence of the officer, the defendant may be retaken with- in the territorial division, as often as he escapes, upon fresh pursuit, although he were out of view, and at any place in the next adjoining county, within seven miles of the border of first named territorial division, without having the warrant backed. Distance from Territory. The distance would be measured in a straight line, (in the absence of any prescribed measure- ment,) as from point to point, as the crow flies : JReg. V. Inhabitants of Walden, 9 Q. B. 76. If after a departure by the permission of the con- stable, the party returns into his custody, he 48 INDICTABLE OFFENCES. IHSi stables, etc., may execute warrant. On what con- may lawfully detain him in pursuance of the ditionscon- original warrant. When the prisoner is brought before a magis- trate, he is still considered to be in the custody of the officer, until he has been discharged, bailed or committed to prison : 2 Hale, 120. Sections 21 and 22. 21a No objection shall be taken or allowed to any Summons or Warrant for any defect therein, in substance or in form, or °h° ^li\ '^'h ^°"^ ^"y variance between it and the evidence adduced on the for alleged P^*"^ of the prosecution, before the Justice or Justices who defects in takes the examination of the witnesses in that behalf as here- form or sub- jnafter mentioned, stance. See remarks under section 11. 82« But if it appears to the Justice or Justices that . le party charged has been deceived or misled by any such vari- ance, such Justice or Justices, at the request of the party charged, may adjourn the hearing of the case to some future day, and in the meantime may remand the party, or admit him to bail as hereinafter mentioned. See remarks under section 11. If variance appears im- portant the Justices may adjourn the case. II '.\ rants lations re specting — effect of back ing. Section 23. 28a If the person against whom any Warrant has been Backing w,ir- issued, cannot be found within the jurisdiction of the Justice regu- or Justices by whom the same was issued, or if he escapes into, or is supposed or suspected to be, in any place within Canada, out of the jurisdiction of the Justice or Justices issuing the Warrant, any Justice of the Peace within the jurisdiction of whom the person so escapes, or in which he is or is suspected to be, upon proof alone being made on oath or affirmation of the handwriting of the Justice who issued the same, without any security being given, shall make an endorse- ment (K) on the Warrant, signed with his name, authorizing the execution of the Warrant within the jurisdiction of the Justice making the endorsement, and such endorsement shall be sufficient authority to the person bringing such Warrant, and to all other persons to whom the same was originally directed, and also to all Constables and other Peace Officers of the Territorial Division where the Warrant has been so endorsed, to execute the same in such other Territorial Divi- sion, and to carry the person against whom the Warrant issued, when apprehended, before the Justice or Justices of the Peace who first issued the Warrant, or before some other Justice or Justices of the Peace for the same Territorial Divi- sion, or before some Justice or Justices of the Territorial BACKING WAllUANTS. 40 Division, in which the offence mentioned in the Warrant ap- Backing war- pears therein to have been committed. lations re- It will be observed that section 23, refers "£'"?" to crimes committed as in section 1, mentioned, baci If the prosecutor or any ot the witnesses for the pro- Duty of con- secution be then in the Territorial Division where such per- stable in cases son has been apprehended, the Constable, or other person or ' persons who have apprehended him, may, if so directed by the Justice backing the warrant, take him before the Justice who backed the warrant, or before some other Justice or Justices for the same Territorial Division or place ; 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, with an offence alleged to have been committed in another Territorial Divi- sion than that in which such persons have been apprehended. . of arrest. 60 INDICTABLE OFFENCES. Summoning witnesses to attend and give evidence — Justices power as to. If summons be not obeyed warrant may be issued to compel attendance. • If it be made to appear to any Justice of the Peace, by the oath or affirmation of any creditable person, that any person within the Dominion is likely to give material evidence for the prosecution and will not voluntarily appear for the purpose of being examined as a witness at the time and place appointed for the examination of the witnesses against the accused, such Justice shall issue his summons (L i) to such person, requiring him to be and appear at a time and place therein mentioned, before the said Justice, or before such other Justice or Justices of the Peace for the same Territorial Division as may then be there, to testify what he knows con- cerning the charge made against the accused party. 26i If any person so summoned neglects or refuses to appear at the time and place appointed by the Summons, and no just excuse be offered for such neglect or refusal, (after proof upon oath or affirmation of the summ^s having been served upon such person, either personally or left with some person for him at his last or usual place of abode), the Justice or Justices before whom such person should have appeared, may issue a Warrant (L 2), to bring such person, at a time and place to be therein mentioned before the Justice who issued the Sommons, or before such other Justice or Justices of the Peace /or the same Territorial Divi- sion as may then be there, to testify as aforesaid, and the said Warrant may, if necessary, be backed as hereinbefore men- tioned, in order to its being executed out of the jurisdiction of the Justice who issued the same. By Act, 39 Vic. c. 36, any mtness duly sub- poenaed to attend and give evidence at any criminal trial before any Court of Criminal Ju- risdiction, siiall be bound to attend and remain in attendance throughout the trial, and in default thereof, the Judge may cause witness to be arrested in order to give evidence and also to answer for his default. This Act specially refers to trials before the Court to which party is bound to take his trial ; but as it may be neces- sary in preliminary proceedings in indictable offences to have the attendance of witnesses, power is given to have them brought up by war- rant, and the same provisions as to backing the warrant to arrest the offender, are applicable to the case of warrants against witnesses. SUMMONING WITNESSES. 51 The party to be summoned is one likely to give evidence for the prosecution. The expenses of witnesses on the part of the prosecution, are usually provided for by special Act, and all witnesses as are bound over by recognizance to appear on the trial. If the party desired as a witness does not attend as a witness, as may be the case from want of means of conveyance, the bringing up by warrant must provide for a conveyance, and there does not seem to be any power vested in the magistrate to punish him for refusal to obey the summons. A witness subpoenaed to attend and give evi- dence on the trial before the Court to which party is bound over, are not exempted from attachment on the ground that their expenses were not tendered at the time of the service of the subpoena, although the Court would have good reason to excuse them for not obeying the summons, if in fact they had not the means of defraying the expenses of the journey : Roscoe on Ev. 113. Section 27. 27. If the Justice be satisfied by evidence upon oath or affiriiiation that it is probable the person will not attend to give evidence unless compelled so to do, then, instead of issuing such Summons, the Justice may issue his Warrant (L 3) in the first instance, and the Warrant, if necessary, m?y be backed as aforesaid. Under this section, power is given to the magis- trate to issue a warrant instead of a summons, but the Justice should be satisfied of the neces- sity of doing so, and require the oath of prosecu- tion or other party to warrant him in so doing. A magistrate has no right to issue a warrant for the apprehension of a person to attend to find bail for his appearance as a witness at the Assizes, although it is sworn, that the witness is If summons be not obeyed warrant may be issued to compel attendance. In certain cases warrant may issue for witness in- stead of summons. 52 INDICTABLE OFFENCES. Persons ap- pearing on summons and refusing to be examin- ed may be committed. material and has refused to obey a summons which had been previously issued to give evi- dence before the magistrate : Evans v. Rees, 4 P. & D. 32, 12 Ad. & Ell. 55. Section 28. 28i If on the appearance of the person so summoned, either in obedience to the Summons or by virtue of the Warrant, he refuses to be examined upon oath or affirmation concerning the premises, or refuses to take such oath or affirmation, or having taken such oath or affirmation, refuses to answer the questions concerning the premises then put to him without giving any just excuse for such refusal, any Justice of the Peace then present and there having jurisdic- tion, may, by Warrant (L 4), commit the person so refusing to the Common Gaol or other place of confinement, for the Territorial Division where the person so refusing then is, there to remain and be imprisoned for any time not exceec. ♦ ten days, unless he in the meantime consents to be examined and to answer concerning the premises. In order to avoid any question as to the power in the magistrate to commit a witness to prison who refuses to answer questions, he ought to be served with a summons, as the Justice acts in the matter of examination, more, ministerially than judicially, it may be doubtful how far the power to commit is vested in him as an incident to his proceedings. A witness should not be committed in any case for refusing to answer questions which are wholly irrelevant to the matter in question, or when he has privilege to refuse to answer. Privilege. A witness cannot refuse to answer any ques- tion relevant to the matter in issue, the answer- ing of which has no tendency to accuse himself and to expose him to a penalty or forfeiture of any nature whatsoever, by reason only, or on the sole ground, that the answering of such questions may establish that he owes a debt, or is other- wise subject to a civil suit, either at the instance of Her Majesty, or any other person or persons. HUSBAND AND WIFE. 53 The clanger in such cases must not be merely Persons ap- imagmar}', but it must be real and appreciable, ^u^^oJ^and and there must appear that there is reasonable refusing to be ground to apprehend danger to the witness from may be his being compelled to answer. R. v. Boyes, 1 committed. B. & S. 311. That the witness will be subjected to a criminal charge however punishable, is clearly a sufficient ground for claiming the protection, and the wit- ness is the person to exercise his discretion, not the Judge, but the witness ought to satisfy the court, that the effect of the question will be to endanger him; the witness should pledge his oath, that he will incur risk by answering the question, and the Judge exercises his discretion whether he will grant the privilege or not, judg- ing from the circumstances of the case and the nature of the evidence, which the witness is called upon to give whether there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Eoscoe Cr. Ev. 152, citing B. v. Boyes, 1 B. & S. 311. Husband and Wife. It was held at one time that a husband or wife was an incompetent witness to prove any fact which might have a tendency to criminate the other, but this is not the law now. Where the husband or wife are actually on trial, they are incompetent witnesses either for or against each other, but where the guilt of the husband or wife is not the subject of inquiry, though they may have been implicated in the transaction, neither are incompetent to give evidence, although the answers may tend to affect the one or the other. This does not affect the cases of informations against wife or husband in cases of personal 54 INDICTABLE OFFENCES. Persons ap- violence, where either one or the other is inform- summons'and ^°*» ^ ^^*^^ cases, one is admitted as a witness refusing to be against the other. So also a wife may swear the examined ,. • i i ■, ^ ^ may be the peace agamst her husband. But, though the husband and wife be com- petent, neither should be compelled to give evi- dence which tends to criminate the other, and where the witness in such a case throws himself on the protection of the court, on the ground that the answer to the question put, might criminate the other, the witness will generally receive the protection. li. v. All Saints, 6 M. &, S. 194. No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be com- pellable to disclose any communication made to her by her husband duiing the marriage. Where several persons are indicted together, the wife of one prisoner cannot be called to give evidence for or against another. See R. v. Smith, 1 Moo. C. C. 289 ; R. v. Thompson, L. R., 1 C. C. R. 377. Three prisoners were on their trial, two for larceny and one for receiving ; it was held, that the wife of one of the two could not be called to give evidence for the one charged with receiving, although the charge against him was contained in a separate count. The preponderance of authority is in favor of the proposition that in no case where the husband is on his trial can the wife be called as a witness, and vice versa. RoBcoe Cr. Ev. 127. Privilege on the Ground of Confidence. This privilege is confined to professional legal advisers. Other professional persons, whether physicians, surgeons or clergymen have no such TESTIMONY OF ACCOMPLICE. 55 privilege : li. v. Gilliam, Ey & M. C. C. E. 198. Persons ap- A person who acts as an interpreter between a summons" nd client and his attorney will not be permitted to refusing to be ,. T , . T examined divulge what passed. may be committed. Accomplice. The testimony of an accomplice who is will- ing to give testimony may be taken. By the policy of the Common Law a witness is not bound to criminate himself. The evidence of an accomplice ought to '\,q received with much cau- tion, even when on a preliminary examination before a Justice, and his evidence ought to be cor- roborated before much weight should be given to it, although a conviction on the testimony of an accomplice uncorroborated is legal: li. v. Att- wood, 1 Leach, 464 ; 1 Hale, P. C. 304 ; li. \. Jones, 2, Camp. 13-'. If an accomplice is charged in the same indict- ment, he cannot be called until after he has been acquitted or convicted, or a nolle prosequi liaa been entered : R. v. Payne, L. li., 1 C. C. R. 349. Privilege on Ground of Public Policy. Disclosures made by informers or persons employed for the purpose, as under the Eevenue laws and such like matters, to the Government^ Magistracy, or Police, with the object of detect- ing and punishing offenders, are usually privi- leged communications, and the name of the informer kept secret, and not unnecessarily dis- closed : R. V. Hardy, 24 How. St. Tr. 808. So also all official communications affecting or relating to matters concerning the interests of the community at large, may be withheld, such as communications between the Governor and Law Officers of a colony ; all State secrets and such like cannot be disclosed by a witness 66 INDICTABLE OFFENCES. by compulsion. See Wyott v. Gore, Holt. N. P. Anderson v. Hamilton, 2 Br. & Bing. Persons ap pearing on ^qq summons and " refusing to be 156-157, note b. examined may be committed. Examination of witnesses to be in the Witness Not Claiming Privilege. If a witness, knowing his privilege, does not object but gives answers to questions, his answers are admissable as evidence against him, but not answers to questions, to which he objects, but as to which he is wrongly deprived of the benefit of his objection : Smith v. Beadnell, 1 Camp. 33. See also H. v. Coote, L. R. 4 P. C. 599. Where the cases are cited in illustration of above, the principles in above matters will apply to prelim- inary examinations before a Justice. The several provisions in the Dominion have Laws regulating the competency and privilege of witnesses, in most pari being re-enactments of the English Statutes relative to same. The Dominion Act, 32-33 Vic. c. 29, s. 62, pro- vides that " No person offered as a witness shall, by reason of any alleged incapacity from crime or interest, be excluded from giving evi- dence on the trial of any criminal case, or in any proceeding relating or incidental to such case ; " and by s. 63, " Every person so offered shall be admitted and be compellable to give evidence on oath, or solemn affirmation, where an affirmation is receivable. Notwithstanding that such person has, or may have an interest in the matter in question, or in the event of the trial in which he is offered as a witness, or of any pro- ceeding relating or incidental to such case, and, notwithstanding that such person so offered as a witness has been previously convicted of a crime or offence." Section 2g. 20. In all cases where any person appears or is brought before any Justice or Justices of the Peace charged with any indictable offence, whether committed in Canada or upon the SIGNING DEPOSITION. 57 give 3re an that n the ial in 1^ pro- case, ffered of a Drought |th any 3on the high seas, or on land beyond the sea, and whether such per- presence of son appears voluntarily upon Summons or has been a^pre- ^^^^?^^ hended, with or without Warrant, or is in custody for the • • ° * same or any other offence, such Justice or Justices before he depositions. or they commit such accused person to prison for trial, or before he or they admit him to bail, shall, in the presence of the accused person, (who shall be at liberty to put questions to any witness produced against him,) take the statement (M) on oath or affirmation of those who know the facts and cir- cumstances of the case, and shall put the same in writing, and such depositions shall be read over to and signed respectively by the witnesses so examined, and shall be signed also by the Justice or Justices taking the same. It must be borne in mind that the depositions have not only to be signed by the Justice or Jus- tic es taking the same, but also by the witnesses examined in regard to the offence charged. The examination must also be in the presence of the accused, and if he desires it, he should not be denied the assistance of Counsel or Attorney. If the original complaint or information and evidence taken before the warrant was issued, contains a complete case, it is the practice in England for the magistrate, after re-swearing the accuser and witnesses, to read over their for- mer depositions in their presence, and to state to the prisoner, that he is at liberty to ask the prosecutor and witnesses any questions respect- ing the charge against him, and if he declines so doing the examinations are not again gone over, but a fresh jurat is made to them ; and this even before a fresh magistrate ; the papers are then signed by the parties deposing, and by the Justice by whom they are taken : 1 Chit. Cr. Law, 80 ; 1 Leach, 458. 30a The Justice or Justices shall, before any witness is examined, administer to such witness the usual oath or affirmation, which such Justice or Justices are hereby em- powered to do; and if upon the trial of the person accused, it be proved upon the oath or affirmation of any credible wit- ness, that any person whose deposition has been taken as aforesaid, is dead, or is so ill as not to be able to travel, or is 5 H.O.L. Justice to ad- minister oath — depositions of persons dy- ing, absent, &c., how and when may be used. S8 INDICTABLE OFFENCES. Justice to adiTiaister oath — deposi- tions of per- sons when dying, absent, etc. — how and when may be used. absent from Canada, and if it be also proved that such de- position was taken in presence of the person accused, and that he, his Counsel or Attorney, had a full opportunity of cross- examining the witness, then it the deposition purports to be signed by the Justice by or before whom the same purports to have been taken, it shall be read as evidence in the prosecu- tion without further proof thereof, unless it be proved that such deposition was not in fact signed by the Justice purport- ing to have signed the same. Swearing the witness after the deposition is taken, is improper and censurable. The witness should first be sworn before giving any testi- mony, and if the magistrate was to commit with- out an oath made before him, he would be liable to an action if the prisoner was acquitted. 1 Hale, P. C. 586 ; 1 Leach. 202, 309. The magistrate reduces the examination of each of the deponents to writing in a plain and intelligible manner. All the facts and circumstances should be inserted which are necessary to prove the crime, and the corpus delicti should appear on the face of the depositions, for, if this be properly done, though the commitment should be informal, the prisoner will not be entitled to be discharged on the ground of defect in the mittimus. 1 Ch. Cr. L. 79 ; 3 East. E. 157. Signing Deposition by Justice. In the case of the Queen v. Parker, L. E., 1 C. C. E. Vol. I, 225, overruling Reg. v. Richards (4 F. & F. 860), it was held that it was not neces- sary that each deposition should be signed by the Justice taking it ; and therefore, where a number of depositions taken at the same hear- ing on several sheets of paper were fastened to- gether, and signed by the Justices taking them once only at the end of all the depositions, in the form given in the schedule ; it was held that one of these depositions was admissible in evidence SIONIMO DEPOSITION. 69 under sect. 17 of Act, 11-12 Vic, c. 42, (which Justice to contains similar provisions as section 80 ofoaJ|J!^"eposi. Dominion Act), after the death of the witness tions of per- making it, although no part of it was on the absent, etc.— sheet signed by the Justice. ^°^ ^^^ , ° ■' when may be used It will be observed that the form M to section 29, states : "The above depositions of C. T>. and E. F. were taken and sworn before me," etc., and the court, in case cited, thought that the schedule or form seemed to make the signature of the Justice apply to all the depositions taken ; and the court held that the deposition in such case was properly admitted in evidence, the wit- ness bei»g deceased. In Act 32-33 Vic. c. 29, 8. 58, it is provided, that depositions taken on any charge may be read in prosecutions of others, the words of such section are, '* Deposi- tions taken in the preliminary or other investiga- tion of any charge against any person, may be read as evidence in the prosecution of such per- son for any other oflfence whatsoever, upon the like proof and in the same manner, in all respects, as they may, according to law, be read in the prosecution of the offence with which such person was charged, when such depositions were taken." In order to render a deposition of any kind admissible in evidence, in any case it must be proved to have been formally taken. It must appear to have been taken under oath ; that the party against whom it is tendered had opportu- nity of examining the witness who made it, and all the other requirements of the statute must be proved by the party tendering the evidence, to have been complied with. If the deposition is admissible at all, it is admissible for all the purposes for which ordinary 60 IMDIOTABLE OFFEKOES. Justice to evidence is admissible, and may be used for or oatt-de- agains* tlie prisoner. positions of It may be used before the Grand Jury in the persons dying, absent, same "Way as before the petit jury. R, v. Clements, SSen^'mVbe^ ^en. C. C. 261; Eoscoe on Cr. Ev. 75. used. It is of the utmost importance that the magis- trate sees that all the requisites of the statute have been complied with, in respect to taking depositions; he should see that the oath, or affirmation where such is allowed, has been pro- perly administered in the first instance ; that the deposition is properly signed by himself and by the witness ; if the deposition is written on more than one sheet of paper, and only the last sheet signed, it should appear that all the sheets were annexed properly together at the time the magistrate signed the last sheet ; the mode by which they are attached will not be material, if they appear to have been attached together at the time of the signature. Reg. v. Parker, L. E., Crown Cases, 1 Vol. 225. Where the depositions were on separate sheets, but under the one caption, "Examination of J. J. Hill and others, in the presence of the prisoner," etc., and the whole were attached to- gether, not at the time of the signature, but subsequently by the magistrate's clerk. Pollock, C. B., admitted them in evidence. R. v. Lee, 4 F. & F. 65. In cases where the prisoner calls witnesses before the magistrate in answer to the charge, they should be heard, and their evidence taken down; and if the prisoner be committed for trial, the depositions of his witnesses should be transmitted together with the depositions in support of the charge : 2 C. & K. 845. Nothing should be returned as a deposition against the prisoner, unless the prisoner had an SiaNINa DEPOSITION. 61 ksses iken for I be in opportunity of cross-examining the person justice to making the deposition. R. v. Arnold, 8 C. & P-SI-d? g21. positions of Magistrates should return all the depositions Syjng. absent, that have been taken at all the examinations ®*f •• ^°^ *°^ when may be that have taken place, respectmg the offence used, which is the subject of a trial, R. v. Simon, 6 C. & P. 540 ; and whether for the prosecution or on the part of the prisoner : R. v. Fuller, 7 C. & P. 269. The examination of the prosecutor and his witnesses, should be of the most searching cha- racter, and the magistrate ought to continue his inquiries as long as anything of importance can be elicited from the witnesses respecting the guilt of the prisoner, or which may tend to implicate accomplices or others not yet arrested; this is also important that the witnesses may be tied down to their first narration, and not be left open to those impressions either of pity or revenge, which may affect them between the examination and trial of the accused. If the examination has been taken in con- formity with the provisions of the statute, it proves itself in cases in which the depositions are admissible, the words of the statute being, ** It shall be read as evidence in the prosecution without further proof thereof, unless it be proved that such deposition was not in fact signed by the Justice, purporting to have signed the same." If there are any erasures or interlineations they should be explained by some one present at the time. The prisoner is not to be precluded from shewing, if he can, that omissions have been made to his prejudice, for the examination is used against him as an admission, and admis- sions must be taken as they were made, the 62 INDICTABLE OFFEKCES. Mil Justice to whole together, when relating to a particular oath'^e- matter, not in pieces, nor with partial omissions, positions of even the prisoner's signature ought not to stop persons i • t • •« i i. • • dying. absent, him from proving, if he can, such omissions: etc.. how and 3, phJ], Ev. 118, 10 Ed. when may be used. A magistrate committing for re-examination, ought at each examination to subscribe the depo- sitions then taken, (the witnesses having first signed) and not to defer the subscription by him- self and the witnesses, till he determines upon committing : Reg. v. Mayor of Lojidon, 5 Q. B., 555. Sections 31-32. 31* After the examinations of all the witnesses for the prosecution have been completed, the Justice, or one of the Justices by or before whom the examinations have been com- pleted, shall, without requiring the attendance of the 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 "anything in answer to the charge? You are not obliged to *' say anything unless you desire to do so, but whatever you " say will be taken down in writing, and may be given in evi- "dence against you upon your trial;" and whatever the prisoner then says in answer thereto shall be taken down in writing (N) and read over to him, and shall be signed by the Justice or Justices, and kept with the depositions of the wit- nesses, and shall be transmitted with them as hereinafter mentioned. 32i The Justice or Justices shall, before the accused per- son makes any statement, state to him and give him clearly to understand that he has nothing to hope from any promise of favor, and nothing to fear from. any threat which may have been held out to him to induce him to make any admission or confession of his guilt, but that whatever he then says may be given in evidence against him upon his trial, notwithstanding such promise or threat. On the examination there are three modes of conduct for the defendant to adopt : to disclose his defence ; to remain silent ; or to confess his guilt. If he has been falsely accused, he may prefer adopting the first course to being confined in After exami- nation of the accused. Jus- tice to read depositions taken against him. and cau- tion him as to any statement be may make. Explanations to be made to the accused party. CAUTIONING PRISONER. 08 prison until the sitting of the Court, or calling Explanations on his friends to bail him; but if it is doubtful J°tj,g^*u*g Instead of detaining the accused party in custody may be admit- during the period for which he has been so remanded, any ted to bail on recognizance. Non-appear- ance of accused on his recogni- zance — pro- ceedings. one Justice of the Peace before whom such party has appear- ed or been brought, may discharge him, upon his entering into a Recognizance (Q 2, 3.) with or without a surety or sureties, at the discretion of the Ju.stice, conditioned for his appearance at the time and place appointed for the continu- ance of the examination. A9m If the accused party does not afterwards appear at the time and place mentioned in the Recognizance, the said Justice or any other Justice of the Peace who may then and there be present, having certified (Q 4) upon the back of the Recognizance the non-appearance of such accused party, may transmit the Recognizance to the Clerk of the Court where the accused person is to be tried, or other proper officer appointed by law, to be proceeded upon in like manner as other Recognizances and such Certificate shall be deemed sufficient prima facie evidence of the non-appearance of the accused party. Ojf'ender may he Examined in one Division and Committed in another. 46. See section and remarks under section 1. — Ante. If evidence be not deemed sufficient it may be trans- mitted to the proper divi- sion with other papers, and party may be committed or bailed. Sections 47, 52 and 56. 47. If the testimony and evidence be not, in the opinion of the Justice or Justices, sufficient to put the accused party upon his trial for the oftence with which he is charged, then the Justice or Justices shall, by recognizance, bind over the witness or witnesses whom he has examined to give evidence as hereinbefore mentioned ; and such Justice or Justices shall. Warrant (R i). order the accused party to be taken before some Justice or Justices of the Peace in and for the Terrri- torial Division where the offence is alleged to have been com- mitted, and shall at the same time deliver up the information and complaint, and also the depositions and recognizances so taken by him or them to the Constable who has the execution of the last mentioned Warrant, to be by him delivered to the Justice or Justices before whom he takes the accused, in obedience to the Warrant, and the depositions and recog- nizances shall be deemed to be taken in the case, and shall be treated to all intents and purposes as if they had been taken by or before the last mentioned Justice or Justices, and shall, together with the depositions and recognizances taken INSUFFICIENT EVIDENCE. 76 and Power to any two Justices to bail per- sons charged with felony not capital. In mis- demeanor one iustice may ail. by the last mentioned Justice or Justices in the matter of the charge against the accused partv, be transmitted to the Clerk of the Court or other proper Officer where the accused party ought to be tried, in the manner and at the time hereinbefore mentioned, if the accused party should be committed for trial upon the charge, or be admitted to bail. 62. When any person appears before any Justice of the Peace charged with a felony, or suspicion of felony, other than treason or felony punishable with death, or felony under the Act for the better protection of the Crown and of the Government, and the evidence adduced is in the opinion of such Justice, sufficient to put such accused party on his trial, but does not furnish such a strong presumption of guilt as to warrant his committal for trial, the Justice jointly with some other Justice of the Peace, may admit such person to bail upon his procuring and producing such surety or sureties a in the opinion of the two Justices will be sufficient to ensure the appearance of the person charged, at the time and place •when and where he ought to be tried for the oftence ; and thereupon the two Justices shall take the Recognizances (S I, 2,) of the accused person and his sureties, conditioned for his appearance at the time and place of trial, and that he will then surrender and take his trial and not depart the Court without leave ; and when the offence committed or suspected to have been committed is a misdemeanor, any one Justice before whom the accused party appears may admit to bail in manner aforesaid; — And such Justice may in his discretion require such bail to justify upon oath as to their sufficiency, which oath the said Justice may administer, and in default of such person procuring sufficient bail, then such Justice may commit him to prison, there to be kept until delivered according to law. 86> When all the evidence offered upon the part of the jf evidence prosecution against the accused party has been heard, : ' the deemed insuf- Justice or Justices of the Peace then present are of opinion ficient, party that it is not sufficient to put the accused party upon hi? iAal ? „ j " for any indictable offence, such Justice or Justices shall forth- otherwise to ■with order the accused party, if in custody, to be discharged be committed as to the information then under inquiry ; but if in the opinion °^ bailed, of such Justice or Justices the evidence is sufficient to put the accused party upon his trial for an indictable ofience, although it may not raise such a strong presumption of guilt as would induce them to commit the accused for trial without bail, or if the offence with which the party is accused is a mis. ' demeanor, then the Justices shall admit the party to bail as hereinbefore provided, but if the oftence be a felony, and the evidence given is such as to raise a strong presumption of guilt, then the Justice or Justices shall by his or their warrant f 76 INDICTABLE OFFENCES. If evidence (T i.) commit him to the common gaol for the Territorial deemed insuf- Division to which he may by law be committed, or in the case to be dis-^*^ ^ °' *" indictable offence committed on the high seas or on charged, land beyond the sea, to the common gaol of the Territorial otherwise to Division within which such Justiceor Justices have jurisdiction, L°'P'?'* *o be there safely kept until delivered by due course of law ; provided that in cases of misdemeanor the Justice or Justices, who have committed the oftender for trial, may, at any time before the first day of the sitting of the Court at which he is to be tried, bail such offender in manner aforesaid, or may certify on the back of the Warrant of committal, the amount of bail to be required, in which case any other Justice of the Peace for the same Territorial Division may admit such per- son to bail in such amount, at any time before such first day of the sitting of the Court aforesaid. These sections provide for the remanding of the prisoner where it is necessary or advisable to defer the examination, or further examination of witnesses. If the remand is for a time not exceeding three clear days, the prisoner may be verbally remanded, requiring in such case no written warrant, and the constable may keep such prisoner in his custody to be brought again before the magistrate at the time appointed, but if the remand is for a longer time than three clear days, the remand must be by warrant, (form Q 1) and must not be for a longer time than eight days, and is to be to the gaol or lock- up house of the territorial division or county, and this remand may be in either case from time to time as may be necessary, and section 44, provides that the prisoner instead of being detained in custody during the time of re- mand may be discharged upon entering into recognizance (Q 2, 3) with or without sureties, at the discretion of the Justice, conditional for his appearance at the time and place appointed for continuance of examination. The magistrate must be careful that the remand is in accordance with the provisions of INSUPFICIENT EVIDENCE. 77 srritorial the case IS or oil jrritorial sdiction, of law ; Justices, any time ch he is , or may amount :e of the luch per- first day ling of .visable ination jeeding verbally written p such ) again ted, but a three arrant^ er time or lock- county, )m time ion 44, being of re- ng into lureties, >nal for ►pointed lat the sions of the Statute, and that the prisoner be not com- if evidence mitted for a longer time than is directed, other- ficSnt, party wise the magistrate may be liable to an action to be dis- for so doing. The object of the Statute is to otherwise to prevent unnecessary delay in the examination, ^®^°.'['^J'"®'^ and that the prisoner may not be unduly con- &ned. The full investigation of the case and final decision of the magistrate should depend on the circumstances of the case ; either the prisoner or the accuser may be unable to bring forward the evidence immediately, and as the remand may be from time to time, the magistrate must exercise his discretion as to the necessity of fre- quent remands. The magistrate having heard the examinations and ascertained that the party accused is not entitled to be completely discharged, is next to determine whether he will bail or commit him. Power is given to any two Justices to bail per- sons charged with felony, other than felony punishable with death, or felony under the Act for the better protection of the Crown and Gov- ernment. When the Justice shall be of opinion, that the evidence adduced does not furnish such a strong presumption of guilt as to warrant a committal for trial, but that the evidence is sufficient to put party on bis trial, the Justice, jointly with some other Justice of the Peace, may at once admit him to bail, upon his producing such surety or sureties, as in the opinion of the two •Justices, will be sufficient to insure the appear- ance of the person charged at the time and place v^here he ought to be tried for the offence. Tt frequently happens that the evidence on examination against an accused party is of a very slight and unsatisfactory character, or 78 INDICTABLE OFFENCES. I If evidence greatly weakened by the evidence produced on fident, party^^^^ P^^* ^^ *^^ accused, but still affording a tobedis- blush of suspiciou to justify the ir"';;istrate in otherwise to considering that there is some show of case to OT baUed '"^'^ S*^ to a jury; in such cases, the magistrate exercises a proper discretion ir admitting the party accused to bail, (except in cases, excepted in section 52,) as bail in general answers the same purpose as commitment. When, however, the proof is evident, or the presumption of guilt ia great, the Justices should not bail in cases of felony ; if they admit to bail they thereby give their opinion that the presumption of guilt i& slight, and not sufficient to warrant a commit- ment to prison. If the party cannot find sureties, there is no other course but to commit. In cases of misdemeanours one Justice is com- petent to admit to bail. This section 52, is similar to the provisions in section 56, and by the provisions of such latter section, the Justices are required m cases therein mentioned to admit to bail the accused partj , where no strong presumption of guilt exists as to require a committal to prison, or the case be one of misdemeanor, the words of section 56 being, *'the Justices shall admit the party to bail." In nio&f of the inferior offences, bail wih answer the tame intention as commitment, and therefore it oaght to be taken; but in offences of a capital nature no bail can be security equiva- lent to the actufJ custody of tLe person; 4 Black Com., c. 22; the same principle may be applic- able to extreme eases of felony, where the evi- dence is clear and strong against the accused. In all cases the Jud^'e or Magistrate, in cases where they may exerviise discretion in their INSUFFICIENT EVIDENCE. 79 power to admit to bail, must determine the right if evidence of the party accused to be so admitted by the St!^part/' circumstances of the case, and it is a matter to be dis- thus left to discretion; and in cases under sec- otherwise to tions 52 and 56, the Magistrate is bound tob^^^??"?'"^'^ "^ or bailed. admit to bail, except under the exceptional cases provided for in section 52. AYha^ bail may be called excessive must be left to the magistrate to determine on consider- ing the circumstances of the case and of the accused. It requires the exercise of great judg- ment and firmness ; the two extremes of demand- ing excessive bail and of accepting insufficient bail should be equally avoided ; the nature of the offence and also the cbarp.cter and property of the party accused, should V.e taken in account. A person of wealth charged with a serious offence would forfeit his recognizance, if the amount were not such as would be oppressively large, when required of a poor and obscure in- dividual. It should never be so small as the circum- stances of the party considered.- may hold out an inducement for the accused to forfeit his recogni- zance, and should be determined from a i^ard to the nature of the alleged offence, its punish- ment, the standing and property of the person accused and such like circumstances, for a recognizance of bail is not designed as a satis- faction of the offence when it is forfeited and paid, but as a means of securing and compel- ling the attendance of the party and his submis- sion to trial and punishment, which i;he law ordains for the offence, whilst it grant? the indulgence of his liberty until the crime is fairly proved. Sections 48, 49 and 50. 48i In case such accused party be taken before the Justice Expenses of or Justice last aforesaid, by virtue of the said last mentioned co:istable WKM 80 INDICTABLE OFFENCES. conveying accused. Justice to fur- nish con- stable with proper receipt or certificate of receiving body & neces- sary papers. Warrant, the Constable or other person or persons to whom the said Warrant is directed, and who has conveyed such accused party before such last mentioned Justice or Justices, shall upon producing the said accused party before such Justice or Justices and delivering him into the custody of such person as the said Justice or Justices direct or name in that behalf, be entitled to be paid his costs and expenses of conveying the said accused party before the said Justice or Justices. 49* Upon the Constable delivering to the Justice or Justices the Warrant, information (if any), depositions and recognizances, and proving on oath or affirmation the hand- writing of the Justice or Justices who has subscribed the same, such Justice or Justices before whom the accused party is produced, shall thereupon furnish such Constable with a Receipt or Certificate (R 2), of his or their having received from him the body of the accused party, together with the Warrant, information (if any), depositions and recdgnizances, and of his having proved to him or them, upon oath or atfirmation, the hand-writing of the Justice who issued the Warrant. Constable to fiO* The said Constable, on producing such receipt or be paid ex- certificate to the proper Officer for paying such charges, pensesby pro- shall be entitled to be paid all his reasonable charges, costs P ■ and expenses of conveying such accused party into such other Territorial Division, and of returning from the same. The Justice in such cases, should ascertain the sum which ought to be paid to the constable or other person to whom warrant is directed, as also his reasonable expenses of returning, and should make an order on the proper officers of the place or county, for payment of such fees. The Justice should furnish the constable with a receipt or certificate (R. 2), of his having received from him the body of the accused party together with the warrant and all other papers in the matter, and having proved, on oath or affirmation, before the Justice the handwriting of the Justice who issued the warrant ; and the constable on producing such certificate shall be entitled to be paid all reasonfvble charges, costs and expenses of conveying bucii accused party BAIL AFTER COMMITTAL. 81 into such other territorial division or county and returning from the same. Sections 51, 52, 53, 54 and 55. 81« If such Justice or Justices do not commit the accused Recogni- party for trial, or hold him to bail, then the recognizances zances to be taken before the first mentioned Justice or Justices shall be^°'*^ f "° , committal, void. the 1 be 308t3 arty Bailing party charged with Felony, not Capita Bail in cases of Misdemeanor. 09. »Sio remarks under section 47. 63a In all cases of felony, or suspicion of felony, other Superior or than treason or felony punishable with death or felony under County Court the Act for the t etic protection of the Crown and of the J"<^g® '"^X . Government, and in all cases of misdemeanor, where the party accused has been finally committed as hereinafter provided, any Judge of any Superior or County Court, having jurisdiction r; Ui>) Districts or County, within the limits of which such ace i- .d partv is confined, may, in his discretion on ppplication made to him for that purpo. ■', order such accused party or person to be admitted to bail on entering into Recognizance with sufficient sureties before two Justices of the Peace, in such amount as the Judge directs, and there- upon the Justices shall issue a warrant of deliverance (S 3,) as hereinafter provided, and shall attach thereto the o -der of the Judge directing the admitting of such party to bail. B4> No Justices of the Peace, or County Judge shall admit Superior any person to bail accused of treason or felony punishable Cou'^t only, to with death, or felony under the Act for the better protection ^^' ^^ certain of the Crown and of the Government, nor shall any such person be admitted to bail, except by order of a Superior Court of Criminal Jurisdiction for the Province in v.hich the accused person stands committed, or of one of the Judges thereof, or in the Province of Quebec, by order of a Judge of the Court of Queen's Bench or Superior Court; and nothing herein contained, shall prevent such Courts or Judges c-J./nt- ting any person accused of misdemeanor or felony to bail when they may think it right so to do. SB. In all cases where a Justice or Justices of the Peace , ,. , ., , , , , . , .-^ , , Justice bail- admit to bail any person who is then in any prison charged j,jg j^f^g^ com- with the offence for which he is so admitted to bail, the mittal to Justice or Justices shall send to or cause to be lodged with issue a war- the keeper of such Prison, a Warrant of Deliverance (S 3,) ij^-gr-n-g ' under his or their hand and seal or hands and seals, requir- ing the said keeper to discharge the person so admitted to 82 IXDICTABLE OFFENCES. mittal, to issue a war- rant of de- liverance. Justice bail- bail if he be detained for no other offence, and upon such ing after com- Warrant of Deliverance being delivered to, or lodged with such keeper, he shall forthwith obey the same. If the party is not ready with bail at the time he is apprehended and examined, and the offence is bailable, he may at any time be released from imprisonment on finding sureties, and after the recognizance is entered into, the Justice will send notice of the fact to the gaoler^ in form of warrant of deliverance, (form S. 3) under his hand and seal. See remarks under section 39. There should be no objection to allowing the prisoner to remain a short and reasonable time before his final commitment in the custody of the officer, who will be careful not to suffer an escape, to aflford the prise acr opportunity of procuring bail. Party to he Discharged, Bailed, or Committed on Evidence. 56. See section and remarks under section 47> SECriONS 57 AND 58. 57. The Constable or any of the Constables, or other per- sons to whom any Warrant of Commitment authorized by this or any other Act or law is directed, shall convey the accused person therein named or described to the gaol or other prison mentioned in such warrant, and there deliver him, together with the Warrant, to the Keeper of such gaol or prison, who shall thereupon give the Constable or other person delivering the prisoner into' his custody a Receipt (T. 2,) for the prisoner, setting forth the state and condition of the prisoner when delivered into his custody. 58. -^t ^°y '''"^ after all the examinations have been com- pleted, and before the first sitting of the Court at which any person so committed to prison or admitted to bail is to be tried, such person may require and shall be entitled to have, from the Officer or perso:. having the custody of the same, copies of the depositions on which he has been committed or bailed, on payment of a reasonable sum for the same, not ex- ceedmg the rate of five cents for each folio of one hundred words. s onveyance 'f prisoner to ; fison — pro- ceedings. Copy of de- positions — where defen- dant entitled to. DUTY OF CORONEK. 88 com- 1 any to be have, same, ed or lot ex- iidred This section (58), does not authonze the giving Copy of de- of depositions in cases of prisoners committed ^J^grg^^efen- for re-examination, but only where the party has dant entitled been fully committed for trial : Reg v. Mayor of London, 5 Q. B., 555. It has been held by Littledale, J., and Parke, B., that a prisoner is not entitled to a copy of his own statement, along with the depositions of witnesses, but as the whole of depositions and the statement of the prisoner are returned to the proper officer, it seems but reasonable that he should be entitled to have all copies of same, if desired. The application for such copies should be made before the first day of trial at Court ; provision is made by express words in the English Statute for the discretion of eTudge to allow copies to be delivered, if no delay or incon- venience to trial is occasioned, notwithstanding there has not been a demand made for same before the first day of trial ; and such course would probably be adopted without such provi- sion by the Judge who is to try the case. Sections 59 and 60. 59. Any Judge of the Sessions of the Peace for the city of Certain Quebec or for the city of Montreal, or any PoUce Magistrate, niagistrates District Magistrate or Stipendiary Magistrate, appointed for "^'^^ ^ ^ °f '^ any Territorial Division, or any Magistrate authorized by the powers con- law of the Province in which he acts, to perform acts usually ferred on two required to be done by two or more Justices of the Peace, °J "^of^ J^s- may do alone whatever is authorized by this Act to be done p by any two or more Justices of the Pe'\ce, and the several forms in this Act contained may be varied so far as necessary to render them applicable to such case. 60. Every Coroner, upon any inquisition taken before Coroner him, whereby any person is indicted for manslaughter or Duty of, in murder, or as an accessory to murder before the fact, shall, cases of mur- in presence of the party accused, if he can be apprehended, , '^ °v,t"^" put in writing the evidence given to the jury before him, or as Recogni- much thereof as may be material, giving the party accused zances, etc., full opportunity of cross-examination ; and the Coroner shall transmission have authority to bind by recognizance all such persons as " ' know or declare any thing material touching the manslaughter 84 INDICTABLE OFFENCES. Coroner — Duty of, in cases of mur- der or man- slaughter — recogni- zances, etc., transmission of. or muraer, or the offence of being accessory to murder, to appear at the next Court of Oyer and Terminer, or Gaol Delivery, or other Court or term or sitting of a 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 certify and subscribe the evidence, and all the recogni- zances, and also the inquisition before him taken, and shall di liver the same to the proper Officer of the Court at the *Ime and in the manner specified in the thirty-eighth section of this Act. What has already been said as to the admissi- bility of depositions, taken before the Justice of the Peace as evidence, is for the most part appli- cable to the depositions taken before a Coroner, except that this section (60), does not require the depositions to be signed by the witnesses, although it is desirable and proper that this should be done. As to the admissibility of the depositions in evidence against the prisoner on his trial, it seems to be doubtful if they can be read in evi- dence against him, if not taken in his presence, and the prisoner had no opportunity of cross- examining the witness. The authorities in favor of receiving such depositions in evidence are not satisfactory, and the same principle which excludes the deposi- tions in inquiries in indictable ojffences ought also with equal, if not greater force, to apply to depositions taken before a Coroner, where the the trial is one of the highest nature. The pre- sumption that the depositions were duly and impartially taken ly the Coroner, ought not to outweigh the principle of right and privilege of the party to be present and cross-examine the witness before a deposition without such condi- tions being observed, should be received in evi- dence against him. The examinations before the Coroner should be confined and held appli- ADMITTING TO BAIL. 85 cable to their proper object : see. 2 Phil. Ev. 109, 10 Ed ; Eoscoe, Cr. Ev. 78, 9 Ed. Every care should be exercised by the Coroner in certifying and subscribing the evidence and also the inquisition before him taken, and he should be careful to deliver same to the proper officer of the court, as in section 38, as directed, as by neglect of these matters he is subject to be punished by fine. See section 63. 0li When any person has been committed for trial by any wugn nartv Justice or Justices, or Coroner, the Prisoner, his Counsel, committed' Attorney or Agent, may notify the committing Justice or wishes to be Justices, or Coroner, that he will so soon as counsel can be -^^"fd pro- ceedin^s* heard, move one of Her Majesty's Courts of Superior Criminal jurisdiction for the Province in which such person stands committed or one of the Judges thereof, or in the Province of Quebec, a Judge of the Court of Queen's Bench, or of the Superior Court, or in the Provinces of Ontario or New Bruns- wick, the Judge of the County Court if it is intended to apply to such Judge under the fifty-third section of this Act, for an order to the Justices of the Peace, or Coroner for the Territorial Division where such Prisoner is confined, to admit such Prisoner to bail, whereupon such committing Justice or Justices, or Coroner, shall, with all convenient expedition, transmit to the office of the Clerk of the Crown, or the Chief Clerk of the Court, or the Clerk of the County Court or other proper officer (as the case may be,) close under the hand and seal of one of them, a certified copy of all informations, examinations, and other evidences, touching the offence wherewith the Prisoner has been charged, together with a copy of the warrant of commitment and inquest, if any such there be, and the packet containing the same shall be handed to the person applying therefor, in order to its trpns- mission, and it shall be certified on the outside thereof to con- tain the information touching the case in question. The provisions of this section are intended to expedite the admitting the prisoner to bail, and the magistrate, whenevf-r he has received the notification of intention to apply to Court or Judge for such purpose, should ut once pre- pare copies of all informations, examinations, and other evidence, together also with copy of warrant of commitment and inquest, if any 86 INDICTABLE OFFENCES. When party such there be, these papers should be enclosed wish^lcTbe ^^ suitable envelope or covering, so that there bailed— pro- may be no chance of tampering with the same ; first, having been duly certified under the hand and seal of the Justice, as being true copies ; this packet should then be closed and have endorsed on the outside thereof, a memorandum of what the papers relate to. This packet should be with all convenient speed transmitted to the office of the CleiA of the Crown, or Chief Clerk of the Court, or Clerk of the County Court, or other proper officer as the case may be, according to what Court prisoner has been committed for trial. The section is somewhat ambiguous as to whether the Justice has to transmit the packet, or whether it is sufficient to prepare it in proper form for transmission, and then on application of Counsel for prisoner, deliver it to the party applying. If the packet is ready for transmission, there would be no impropriety in delivering it at once to the party applying, and who gave the notice without first filing the same with the proper officer, as the object in having the packet, is to apply to Court or Judge with the papers to be considered as to prisoner's right to be bailed ; if, however, the Justice has transmitted the packet, the duty of the officer to whom same has been so sent would be to hand the same to the proper person .applying. In practice it is not unusual to lay before the Judge the original information and depositions, and order of commitment, where such can conveniently be done, and make appli- cation forthwith ; in such case the papers would be subsequently filed with the proper officer. Sections 62, 63, 64, 65 and 66. 'Same order ®2» Upon such application to any such Court or Judge as ^o be made as in the last preceding section mentioned, tbe same order touch- PENALTY. ing the prisoner being bailed or continued in custody, shall be made as if the party were brought up upon a Habeas Corpus. 63. If any Justice or Coroner neglects or oftends in any thing contrary to the true intent and meaning of any of the provisions of the sixtieth and following sections of this Act the Court to whose Officer any such examination, information' evidence, bailment, recognizance, or inquisition ought to have been delivered, shall, upon examination and proof of the offence, in a summary manner, set such fine upon every such Justice or Coroner as the Court thinks meet. 64. The provisions of this Act relating to Justices and Coroners, shall apply to the Justices and Coroners not only of Districts and Counties af large, but also of all other Territorial Divisions and Jurisdictions. 65. The word ■•Territorial Division," whenever used in this Act shall mean County, Union of Counties, Township City. Town, Parish or other Juridical Division or place to which the context may apply. 66. The several forms in the Schedule to this Act con- tained, or forms to the like effect, shall be good, valid and suf ficient in law. 87 upon Habeas Corpus. Penalty on Justices and Coroners dis- obeying pro- visions of cer- tain sections of Act. Provisions of Act to extend to all Justices and Coroners. Interpreta- tion—" Ter- ritorial Divi- sion." 67. This Act shall commence and take effect on the first day of January, in the year of our Lord, one thousand eight hundred and seventy. Forms in Schedule to Act— Validity of. 88 INDICTABLE OFFENCES. SCHEDULES. (A) Vide ss. i and g. INFORMATION AND COMPLAINT FOR AN INDICTABLE OFFENCE. Canada, \ Province of , District for County, United Counties, or as the case may be,) of The information and complaint of C. D. of (yeoman), taken 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 District (or County, or as the case may be,) of who saith that [etc., stating the offence.) Sworn (or affirmed) before [me'\ the day and year first above mentioned, at J. S. (B) See ss. i, 17. WARRANT TO APPREHEND A PERSON CHARGED WITH AN INDICTABLE OFFENCE. Canada, \ Province of District {or County, United Counties, or as the case may be,) of To all or any of the Constables or other Peace Officers in the District [ok County, United Counties, or as the case may be,) of Whereas A. B., of {laborer), hath this day , been charged upon oath before the undersigned, {one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case may be,) of , for that he on , at , did {etc., stating^ shortly the offence) ; These are therefore to command you, m Her Majesty's T schedulp:s. 89 name, forthwith to apprehend the said A. B.. and to bring him before h,u) or some other of Her .Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as tin- case may be,) of to ansv.er unto the said charge, and to be further deal't with according to Given under {my) Hand and Seal, this day of ^^ • '" the District {County, etc.,) aforesaid. J. S. [L. S.J (C) See ss. 2, 13. SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE OFFENCE. Canada, \ District {or County, | United Counties, or ■ as the case may be,) of T° A. B. of , (/,j,,„.) . Whereas you have this day been charged before the undersigned {one) of Her Majesty s Justices of the Peace in and for the said District {or County United Counties, or as tin- ease may be,) of for that you on at , {etc., stating shortly the offence) ; These are therefore to command you, in Her Majesty's name, to be and appear before {me) on at o'clocl< in the {fore) noon, at , or before such other Justice or Justices of the Peace of the same District {or County, United Counties, or as the case may be.) of , as may then be there, to answer to the said charge, and to be further dealt with according to law. Herein 13.11 not* Given under {my) Hand and Seal, this day of . in the year ot uur Lord , at , in the District {or County, etc.,) aforesaid. JS. [L. S.J (D) See ss. 2, 16. WARRANT WHEN THE SUMMONS IS DISOBEYED. Canada, Province of District {or County , United Counties, or C as the ease may be,) I of ) To all or any of the Constables, or other Peace Officers in the said District {or County, United Counties, or as the case may be.) of s.n.L. -^ V \P IMAGE EVALUATION TEST TARGET (MT-3) A 1.0 1.1 bil2£ |2.S £ la 110 1.8 11.25 III 1.4 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 •NJ ,\ iV :\ \ ^ 'is. o"^ fe 90 INDICTABLE OFFENCES. Whereas on the day ot (instant or last past) A. B. of the , was charged before [me or us,) the undersigned, (or name the Magistrate or Magistrates, or as the case may be) (one) of Her Majesty's Justices of the Peace in and for the said District (or County, I'nited Counties, eras the case may be) of for that (etc., as in the summons) : And whereas (I or he, the said Justice of the Peace, or we, or they, the said Justices of the Peace) did then issue (my, our, his or their) Summons to the said A. P., commanding him, in Her Majesty's name, to be and appear before (me) on at o'clock in the (fore) noon, at , or before such other Justice or Justices of the Peace as should then be there, to answer to the said charge, and to be further dealt with according to law ; And whereas the said A. B. hath neglected to be or 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 was duly served upon t^>> said A. B. ; These are therefore to command you in Her Majesty's nar; . ''.ithv/ith to apprehend the said A. B., and to bring him before (me) or soi)""- jther of Her Majesty s Justices of the Peace in and for the said Distx' , {'-■■ County, United Counties, or as the case may be,) of , to ansv si the said charge, and to be further dealt with according to law. Given under (my) Hand and Seal, this day of , in the year of Our Lord , at , in the District (or County, etc.,) of aforesaid. J. S. [I., s.] (D 2) See s. 3. WARRANT TO APPREHEND A PERSON CHARGED WITH AN INDICTABLE OFFENCE COMMITTED ON THE HIGH SEAS OR ABROAD. For offences committed on the high seas the warrant may be the same as in ordinary cases, but describing the offence to have been committed " on the high seas, out of the bod> of any District or County of Canada and within the jurisdiction of the Admiralty of England." For offences committed abroad, for zvhich the parties may be indicted in Canada, the warrant also may be the same as in ordinary cases, but describing the offence to have been committed " on land out of Canada, to wit : at , in the Kingdom of , or at , in the Island of , in the West Indies, or at , in the East Indies," or as the case may be. SCHEDULES. 91 (E i) Sie s. 12. INFORMATION TO OBTAIN A SEARCH WARRANT. Canada, I'rovince of District {or County, United Counties, or as the case may of es, or ; ;. be,\ The information of A. B., of the , of , in the said District (or County, t'/c.,) {yeoman), taken this day of ,in the year of Our Lord , before me, W. S., Esquire, one of Her Majesty's Justices of the Peace, in and for the District {or County, United ('ounties, or as the case may be,) of , who saith on the day of {insert the description of articles stolen) of the goc»ds and chattels of Deponent, were feloniously stolen, taken and carried away, from and out of the {Dii-elling House, etc..) of this Deponent, at the {Township. etc..\ aforesaid, by (some person or persons unknown, or name the person.) 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 {Dwelling House, etc., of C. D.) of , in the said District, {or <>ounty,) {here add the causes of suspicion, whatever they may be :) When fore, {he) prays that a Search Warrant may be granted to him to search (the Dwelling House, etc.,) of the said C. D. as aforesaid, for the said goods and chattels so feloniously stolen, taken and carried away as aforesaid. Sworn {or affirmed) before me the day and year first above mentioned at , in the said District {or County) of w. s., y.p 'H AN licted in scribing It I, in the {K 2) See s. 12. SEARCH WARRANT Canada, \ Province of District {or County, ! United Counties, or as the case may be,) of To all or any of the Constables, or other Peace Officers, in the District {or County, UnitedCounties, or as the case may be,) of Whereas A. B. of the , of , in the said District {or County, etc.,) hath this day made oath before me the undersigned, one of Her Majesty's Justices of the Peace, in and for the said District, {or County, United Counties, or as the case may be,) of , that on the day of , {copy information as far as place of supposed concealment) ; These are therefore in the name of our Sovereign 92 INDICTABLE OFFENCES. Lady the Queen, to authorize and require you, and each and every of you, with necessary and proper assistance, to enter in the day time into the said (Dwelling House, etc.,) of the said, etc., 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 found, and also the body of the said C. D. before me, or some other Justice of the Peace, in and for the said District (or County, 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 , in the said District (or County, etc.,) this day of , in the year of Our Lord, one thousand eight hundred and \V. S., y.P.. (Seal.) (F) See s. 4. CERTIFICATE OF INDICTMENT BEING FOUND. I hereby certify that a Court of (Oyer and Terminer, or General Gaol Delivery, or General Sessions of the Peace) hoiden in and for the District (or County, United Counties, or as the case may be,) of , at in the said District, (County, etc.,) on , a Bill of Indictment was found by the Grand Jury against A. B., therein described as A. B., late of , (laborer,) for that he (etc,, stating shortly the offence,) and that the said A. B. hath not appeared or pleaded to the said indictment. Dated this , day of , one thousand eight hundred and Z. X. Clerk of the Crown, or Deputy Clerk of the Crown for the District (or County, United Counties, or as the case may be,) or Clerk of the Peace of and for the said District (or County, United Counties, or as the case may be.) (G) See s. 4. WARRANT TO APPREHEND A PERSON INDICTED. Canada, \ Province of District (or County, | Unite ' Counties, or IIS the case may be) of To all or any of the Constables, or other Peace Officers, in the said District (or County, United Counties, or as the case may be) of Whereas it hath been duly certified by J. D., Clerk of the Crown of SCHEDULES. 9a {name the Court) {or E. G., Deputy Clerk of the Crown, or Clerk of the Peace, as the ease may be) in and for the District {or County, United Counties, or as the ease may be) of that {etc., statiufr the certijieate) ; These are therefore to command you in Her Majesty's name forthwith to apprehend the said A. B., and to bring him before (me,) or some other Justice or Justices of the Peace in and for the said District (i-r County, United Counties or as the ease may be,) to be dealt with according to law. Given under my Hand and Seal, this day of , in the year of Our Lord , at in the District {or County, etc..) aforesaid. J. S. [L. S.] United D. [H] See s. 5. WARRANT OF COMMITMENT OF A PERSON INDICTED Canada, Province of District (or County, United Counties, or as the case may be) of To all or any of the Consta? es, or other Peace Officers in the said District {or County, etc.,) of , and the Keeper of the Common Gaol, at , in the said District {or County, United Counties, or as the case may be) of ; Whereas by a Warrant under the Hand and Seal of {one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Couniies, or as the case may be \ o{ under Hand and Seal dated , after reciting that it had been certified by J. D. {etc., as in the certificate,) { ) the said Justice of the Peace commanded all or any of the Constables, in Her Majesty's name, forthwith to appre- hend the said A. B. and to bring him before (him) the said Justice of the Peace in and for the said District [or County, United Counties, or as thr case may be,) of or before some other Justice or Justices in and for the said District {or County, United Counties, or as the case may be.) to be dealt with according to law ; And whereas the said A. B. hath been appre- hended under and by virtue of the said Warrant, and being now brought before {me) it is hereupon duly proved to {me) upon oath that the said A. B. is the same person who is named and charged by , in the said indictment ; These are therefore to command you the said Constables and Peace Officers, or any of you, in Her Majesty's name, forthwith to take and convey the said A. B. to the said Common Gaol at , in the said District {or County, United Counties, or as the case may be,) of and there to deliver him to the Keeper thereof, together with this Precept : and (/) hereby command you the said Keeper to receive the said A. B 94 INDICTABLE OFFENCES. into your custody in the said Gaol, and him there to safely keep until he shall thence be delivered by due course of law. fliven under my Hand and Seal, this day of in the year ( f Our Lord , at , in the District {or. County, ttc.,) afvtresaid. J. S. [I., s.] [I] See s. 6. WARRANT TO DETAIN A PERSON DICTED WHO IS ALREADY IN CUSTODY FOR ANOTHER OFFENCE. Canada, ,. Province of District (or County, 1 United Counties, or vhat he should know concerning the said charge so made against the said A. B. as afore- said ; and the said E. F. now appearing before (me) (or being brought before (me) by virtue of a Warrant in that behalf to testify as aforesaid,) hath been now examined before (me) touching the premises, but being by (me) required to enter into a Recognizance conditioned to give evidence against the said A. B., hath now refused so to do: These are therefore to command you the said Constables or Peace Officers, or any one of you, to take the said E. F. and him safely convey to the Common Gaol at , in the Dis- trict (or County, etc.,) aforesaid, and there deliver him to the said Keeper thereof, together with this Prerept ; and I do hereby command you, the said Keeper of the said Common Gaol, to receive the said E. F. into your 102 INDICTABLE OFFENCES. it custody in the said Common Gaol, there to imprison and safely keep him until after the tri?i of the said A. B. for the offence aforesaid, unless in the meantime the said E. F. shall duly enter into such Recognizance as afore- said, in the sum of , before some one Justice of the Peace for the said District, (or County, United Counties, or as the case may be) condi- tioned in the usual form to appear at the next Court of (Oyer and Terminer, or General Gaol Delivery, or General or Quarter Sessions of the Peace,) to be holden in and for the said District {or County, United Counties, or as the case may be,) of , and there to give evidence before the Grand Jury upon any Bill of Indictment which may then and there be preferred against the said A. B. for the offence aforesaid, and also to give evidence upon the trial of the said A. B. for the said oiTence, if a True Bill should be found against him for the same. Given under my Hand and Seal, this year of Our Lord , at aforesaid. , day of , in the in the District {or County, etc.,) J. S. [L. S.] (P 2) See s. 40. SUBSEQUENT ORDER TO DISCHARGE THE WITNESS. Canada, Province of District (or County, United Counties, or as the case may be,) of To the Keeper of the Common Gaol, at County, etc.,) of aforesaid , in the District (or "Whereas by {my) order dated the day of {instant) reciting that A. B. was lately before then charged before {me) for a certain offence therein mentioned, and that E. F. having appeared before {me,} and being examined as a witness for the prosecution on that behalf, refused to enter into Recognizance to give evidence against the said A. B., and I 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 should enter into such Recognizance as afore- said ; 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 SCHEDULES. 103 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 com- mitment, and suffer him to go at large. Given under my Hand and Seal, this day of in the year of Our Lord , at .in the District {or County, etc.,) aforesaid. J. S. [L. S.l (Q i) Set; s. 41. WARRANT REMANDING A PRISONER. Canada, , Province of District (or County, United Counties, or .' as the case may bt,) of / To 3.11 or any of the Constables and other Peace Officers in the said District {or County, United Counties, or as the case may be.) of . and to the Keeper of the (Common Gaol or Lock-up House) ', in the said District (or County, etc.,) of . Whereas A. B. was this day charged before the undersigned {one) of Her Majesty's Justices of the Peace in and for the said District {or County. United Counties, or as the case may be,) of . for that (etc., as in the Warrant to apprehend,) and it appears to {me) to be necessary to remand the said A. B. : These are therefore to command you, in Her Majesty's name, forthwith to convey the said A. B. to the {Common Gaol or Lock- up House,) at , in the said District {or County, e»c.,) 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 ""*■' *^^ day of . {instant) when I hereby command you to have him at , at o'clock in the f/orej noon of the same day before {me or before some other Justice or Justices of the Peace for the .said District {or County, United Counties, or as the case may be,) as may then be there, to answer further to the said charge, and to be further daalt with according to law, unless you shall be otherwise ordered in the meantime. Given under my hand and seal, this year of our Lord at ol aforesaid. f'ay of , in the in the District {or County, etc.,) J. S. [L. s.] 104 INDICTABLE OFFENCES. (Q 2) See s. 44. RECOGNIZANCE OF BAIL INSTEAD OF REMAND ON AN ADJOURNMENT OF EXAMINATION. Canada, Province of District {or County, United Counties, or I as the case tnc of lay be,)\ day of L. M. of , in the (grocer), Be it remembered. That on the year of our Lord, A. B. of , (labourer), and N. O. of , {butcher), personally came before me, (one) of Her Majesty s Justices of the Peace for the said District {or County, United Counties, or as the case may be) , and severally acknowledged themselves to owe to our Sovereign Lady the Queen, Her Heirs and Successors, the several sums following, that is to say : the said A. B. the sum of and the said L. M. and N. O. of , each, of good and lawful current 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 Queen, Her Heirs and Successors, if he, the said A. B., fail in the condition endorsed. Taken and acknowledged the day and year first above mentioned, at before me. j g CONDITION. The condition of the within written recognizance is such, that whereas the within bounded A. B. was this day (or on last past) charged before me for that (etc., as in the Warrant :) And whereas the examination of the Witnesses for the prosecution in this behalf is adjourned until the day of {instant :) If therefore the said A. B. shall appear before me on the said day of {instant), at o'clock in the (fore) noon, or before such such other Justice or Justices of the Peace for the said Di.strict {or County or United Counties, of or as the case may be), as may then be there, to answer {further) to the said charge, and to be further dealt with according to law, the said recognizance to be void, or else to stand in full force and virtue. (Q 3) See s. 44. NOTICE OF RECOGNIZANCE TO BE GIVEN TO THE ACCUSED AND HIS SURETIES. Canada, \ Province of , 1 District ^or County, | United Counties, or as the case may be,) of , Take notice that you A. B. of , are bound in the sum of , and your Sureties L. M. and N. O. in the sum of , each, that you SCHEDULES. 105 the said ;CUSliD that you A. B. appear before me, J. S., one of Her Majesty's Justices of the Peace for the District (jr County, United Counties, or as the case may be.) of , on , the day of {instant.) at o'clock in the {fore) noon, at , or before such other Justice or Justices of the same District, {or County, United Counties, or as the case may be,) as may then be there, to answer {further) to the charge made against you by C. D. and to be further dealt with according to law ; and unless you A. B. personally appear accordingly, the Recognizance entered into by yourself and Sureties will be forthwith levied on you and them. Dated this and day of , one thousand eight hundred J. S. (Q 4) See s. 45. CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON THE RECOGNIZANCE. 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 Recognizance is forfeited. J. S. (R i) Sec s. 47. WARRANT TO CONVEY THE ACCUSED BEFORE A JUSTICE OF THE COUNTY IN WHICH THE OFFENCE WAS COMMITTED. Canada, Province of District (or County, i United Counties, or j as the case may be) of To all or any of the Constables, or other Peace Officers in the said District {or County, United Counties, or as the case may be,) of WTiereas A. B. of {labourer), hath this day been charged before the undersigned {one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case may be,) of for that {etc., as in the Warrant to apprehend); And whereas (/) have taken the deposition of C. D. a witness examined by {me) in this behalf, but inasmuch as (/) am informed that the principal witnesses to prove the said offence against the said A. B. reside in the District {or County, United 8 B.C.L. i!f 106 INDICTABLE OFFEKCES. Counties, or as the case may be,) of where the said o£fence 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 District (or County, United Counties, or as the case may be,) of and there carry him before some Justice or Justices of the Peace in and for that District {or County, United Counties, or as the case may be,) and near unto the {Township of ) where the offence is alleged to have been committed, to answer further to the said charge before him or them, and to be further dealt with according to law ; and (/) hereby further comman d you to deliver to the said Justice or Justices the information in this behalf, and also the said deposition of C. D. now given into your possession for that purpose, together with this Precept . Given under my and Hand Seal, this day of , in the year of our Lord , at , in the District {or County, etc.,) of aforesaid. J. S. [L.S.] (R 2) See s. 49. RECEIPT TO BE GIVEN TO THE CONSTABLE BY THE JUSTICE FOR THE COUNTY IN WHICH THE OFFENCE WAS COMMITTED. Canada, Province of District (or County, | United Counties, or | as the case may be, of I, J. P,, one of Her Majesty's Justices of the Peace, in and for the Dis- trict (or County, etc.,) of , hereby certify that W. T., Constable, or Peace Ofl&cer, of the District (or County, United Counties, or as the case may be,) 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 District (or County, Uniiad Counties, or as the case may be,) of , produced before me, one A. B. charged before the said J. S. wiA having (etc., stating shortly the offence), and delivered him into the custody of by my direction, to answer to the said charge, and further to be dealt with according to law, and has also delivered unto me the said warrant, together with the information (if any) in that behalf, and the deposition (s) of C. D. (and of ) in the said warrant mentioned,, and that he has also proved to me upon oath, the handwriting of the said J. S. subscribed to the same. Dated the day and year first above mentioned, at , in the said District (or County, etc.^ of J. P. SCHEDULES. 107 (S i) See s. 52. RECOGNIZANCE OF BAIL. wifti custody ther to the said ind the tioned > the said the said J. P. Canada, Province of District (or County, I United Counties, or [ as the case may be,) of ^ Be it remembered, that on the day of in the year of our Lord , A. B. of , (labourer), L. M. of (grocer), and N. O. of , (butcher), personally came before (us) the undersigned, (two) of Her Majesty's Justices of the Peace for the District (or County, United Counties, or as the case may be,) of and severally acknowledged themselves to owe to our Sovereign Lady the Queen, Her Heirs and Successors, the several sums following, 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 current money of Canada, to be made and levied of their several goods and chattels, lands and tene- ments respectively, to the use of our said Sovereign Lady the Queen, Her Heirs and Successors, if he, the said A. B., fail in the condition endorsed. Taken and acknowledged the day and year first above mentioned, at before us. J. S. J.N. CONDITION. The condition of the within written Recognizance is such, that whereas the said A. B. was this day charged before (us,) the Justices within men- tioned for that (etc., as in the Warrant) ; if therefore the said A. B. will appear at the next Court of Oyer and Terminer (or General Gaol Delivery or Court of General or Quarter Sessions of thf Peace) to be holden in and for the District (or County, United Counties, or as the case may be,) of , and there surrender himself into the custody of the Keeper of the (Common Gaol or Lock-up House) there, and plead to such indictment as may be found against him by the Grand Jury, for and in respect to the charge aforesaid, and take his trial upon the same, and not depart the said Court without leave, then the said Recognizance to be void, or else to stand in full force and virtue. (S 2) See s. 52. NOTICE OF THE SAID RECOGNIZANCE TO BE GIVEN TO THE ACCUSED AND HIS BAIL. Trke notice that you A. B. of , are bound in the sum o , and your sureties (L. M. and N. O.) in the sum of each wm 108 INDICTABLE OrFENCES. that you A. B. appear {etc., as in the condition of the Recognizance,) and not depart the said Court without leave; and unless you, the said A. B., per- sonally appear and plead, and take your trial accordingly, the Reccgnizance entered into by yc u and your Sureties shall be forthwith levied on you and them. Dated this and day of one thousand eight hundred J. S. (S 3) See ss. 53. 55. WARRANT OF DELIVERANCE ON BAIL BEING GIVEN FOR A PRISONER ALREADY COMMITTED. Canada, Province of District (0/- County, United Counties, or as the case may be,) of To the Keeper of the Common Gaol of the District {or County, United Counties, or as the case may be,) of at , in the said District {or County, United Counties, or as the case may be,) Whereas A. B., late of {labourer,) hath before (us) {two) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be, of , entered into his own Recognizance, and found sufficient sureties for his appearance at the next Court of Oyer and Terminer or General Gaol Delivery (or Court of G"..- eral or Quarter Sessions of the Peace) to be holden in and for 'i;t (or County, United Counties, or as the case may be,) of , t;i .. Our Sovereign Lady the Queen, for that (etc., as in the commiiv.en which he was taken and committed to your said Common Gaol : are therefore to command you, in Her said Majesty's name, that if the said A. B. do remain in your custody in the said Common Goal for the said cause, and for no other, you shall forthwith suffer him to go at large. cse Given under our Hands and Seals, this the year of our Lord , at etc.,) aforesaid. day of , in in the District (or County, J. S. [t,. s.] J.N. [L. s.] SCHEDULES. 109 (T i) Sec s. 56. WARRANT OF COMMITMENT. Canada, Province of District {or County, United Counties, or as the case may be) of To all or any of the Constables, or other Peace Officers, in the District or (County, United Counties, or as the case may be,) of , and to the Keeper of the Common Gaol of the District (or County, United Counties. or as the case may be,) a.t , in the said District (or County, etc. ,) of Whereas A. B. was this day charged before (me), J. S., (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), of , on the oath of C. D., of , (farmer), and others, for that, (etc., stating 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 convey to the Common Gaol at aforesaid, n d there deliver him to the Keeper thereof,, together with this Precept ; Anu J 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. Given under my Hand and Seal, this day of , in the year of Our Lord , at , in the District (or County, 'jtc.) of aforesaid. J. S. [L. S.] • iC or i.cse said said in xnty, s.] s.] (T 2) See s. 57. GAOLERS' RECEIPT TO THE CONSTABLE FOR THE PRISONER. I hereby certify that I have received from W. T., Constable, of the Dis- trict (or County, etc.,) of , the body of A. B., together with a Warrant under the Hand and Seal of J. S., Esquire, one of Her Majesty's Justices of the Peace for the said District (or County, United Counties, or as the case may be,) of , and that the said A. B. was (sober, or as the case may be,) at the time he was delivered into my custody. P. K, Keeper of the Common Gaol of the said District (or County, etc.) no INDICTABLE OFFENCES. ADDITIONAL FORMS. The following forms are not in the Statute relating to indictable offences but are here inserted, and may be found serviceable in some cases. They are mostly taken from Oke's Mag. For., and are slightly altered by me in some cases. J. E. S. DEPOSITION OF CONSTABLE OF THE SERVICE OF SUM- MONS. Canada, \ Province of , District (or County, I United Counties, or i as the case may be) of I The deposition of A. B., of (place), in said County of for District, as the case may be), Constable of said (County) taken upon oath before me, the undersigned, one of Her Majesty's Justices of the Peace in and for the sai>), this day of , A.D. i8 ; who saith, I well know C. D., of , described in the certificate of J. H., Clerk of the etc., now produced by me ; that I never heard mention ol any other person of the same name as the said C. D. living at or near the {place where C. D. usually lives or is to he found), that the said C. D. now here present is the same person who is charged in the indictment referred to in the said certificate. A. B. Sworn before me at of i8 . , in the {County) of , this day J. P. - i ORDER TO BRING UP ACCUSED BEFORE EXPIRATION OF REMAND. Canada, Province of District {or County, ( United Counties, or i as the case may be) | of To the Keeper of the {Common Gaol) at , in the {County) of To wit : Whereas A. B. was on the day of committed {by me) to your custody in the said {Common Gaol) charged for that {as in the War- 112 INDICTABLE OFFENCES. rant remanding the prisoner), and by the Warrant in that behalf you were commanded to have him at on the day of , DOW next, at o'clock in the (fore) noon, before such Justice or Justices of the Peace for the said (County), as might then be there, to answer further to the said charge and to be further dealt with acc^^rding to law ; and whereas it appears to me, the undersigned, one of Her Majesty's Justices of the Peace in and for the said (County) of , to be expedient that the said A. B. should be further examined before the expira- tion of the said remand : These are therefore to order you in Her Majesty's name, to bring and have the said A. B. at , at o'clock of the (fore) noon of (day) before me or some other Justice or Justices for the said (County), as may be then there to answer further to the said charge and to be further dealt with according to law, unless you shall be other- wise ordered in the meantime. Given under my Hand and Seal, this day of year of our Lord , at , in the (County) of said. in the afore- J. S. [L. s.l COMPLAINT OF BAIL FOR A PERSON CHARGED WITH AN INDICTABLE OFFENCE IN ORDER THAT HE MIGHT BE COMMITTED IN DISCHARGE OF THEIR RECOGNIZANCES. Canada, \ Province of I District (or County, ( United Counties, or as the case may be,) of Whereas A. B., of , was on the day of , (last past), committed by (mc) to the Common Gaol of the (County) of , charged for that he (as in the Warrant or order) ; and whereas the said A. B. was admitted to bail, and C. D. and E. F. were on the day of , now [),ast past) severally and respectively bound by recognizance before J. P., Esquire, (or Judge admitting to bail), in the sum of , each, upon condition that the said A. B. should appear at the next term of (state Court to which bound) to be holden in and for the (County) of ; and there surrender himself into the custody of the Keeper of the Common Gaol (or as the case may be), and plead to such indictment as might be found against him by the Grand Jury for or in respect to the charge of (state charge shortly), and take his trial upon the same and not depart the said Court without leave ; and that these com- plainants, the bail aforesaid, have reason to suspect and believe, and do verily suspect and believe that the said A. B. is about to depart from the Country; and therefore they pray me, the said Justice, that I would issue SCHEDULES. lis my warrant of apprehension of the said A. B. in order that he may be sur- rendered to prison in discharge of them the said bail. Before me, etc. J. P. C. D. E. F. Note. — Bail may at any time surrender their principal without Warrant for that purpose, if they can apprehend him, but it is advisable to obtain a Warrant and the assistance of a Constable or Peace Officer in making the arrest. They may make tht arrest at any time and at any place, and may call in the aid of others in mpwing the arrest. They may also, it seems, aelegate the power to another or others in writing to make the arrest fur them ; others aiding in arrest must do so in presence of authorized person. WARRANT TO APPREHEND THE PERSON CHARGED. Canada, Province of , District (or County, United Counties, or as the case may be,) of To wit : To all or any of the Constables and other Peace Officers in the said (County) of , and to C. D. and E. F. severally and respectively: Whereas you, the said C. D. and E. F., have this day made complaint to me, the undersigned one of Her Majesty's Justices of the Peace in and for the said [County) of , that you, the said C. D. and E. F. have reason to suspect and believe, and do verily suspect and believe that A. B., of , who is charged with {here state shortly the charge as in pre- ceding form), is about to depart from the Country, and are desirous of hav- ing a Warrant issued for the apprehension of the said A. B. that he may be surrendered to prison in discharge of the said C. D. and E. F. as bail. These are therefore to authorize you, the said C. D. and E. F., and also to command you the said Constables and other Peace Officers in Her Majesty's name forthwith to apprehend the said A. B. and to bring him before me, or some other Justice or Justices of the Peace in and for the said (County), to the intent that he may be committed to the Common Gaol in and for the said (County) until (state the time of Court to which party is bound), unless he find new and sufficient sureties to become bound for him by recognizance duly ordered. Given under my hand and seal, this year of our Lord , at said. day of in the (County) of in the afore- J. S. [L. s.] 114 INDICTABLE OFFENCES. COMMITMENT OF THE PERSON CHARGED ON SURRENDER OF HIS BAIL AFTER APPREHENSION UNDER A WARRANT. Canada, Province of 1. District (or County, United Counties, or as the case may be) of To wit ; 1: To all or any of the Constables, or other Peace Officers in the (County) of , and to the Keeper of the Common Gaol of the (County) of , (as the case may be) : Whereas, on the day of , complaint was made to me, the undersigned (or J. S.) one of Her Majesty's Justices of the Peace in and for the said (County) of , by C. D. and E. P.. of (etc.). that they had reason to suspect and believe, and did verily suspect and believe that A. B., of , who is charged with (here state shortly the offence), is about to depart from the Country, the said C. D. and E. F. being severally and respectively bound by recognizance upon condition that the said A. B. should appear at (here state the place and time of appearance), and there surrender himself into the custody of the Keeper of the Common Gaol there, and plead to a certain indictment as might be found against him by the Grand Jury for or in respect to the said charge, and to take his trial upon the same and not depart the said Court without leave, and the said C. D. and E. F. did pray that I would issue my Warrant of Apprehen- sion of the said A. B. in order that he may be surrendered to prison in discharge of them his said bail. I thereupon issued my Warrant, authori- zing the said C. D. and E. F. and also commanding the said Constables of and all other Peace Officers in the said (County) of , in Her Majesty's name, forthwith to apprehend the raid A. B. and to bring him before me at on , or some other Justice or Justices •of the Peace in and for the said (County), to the intent tha* he may be com- mitted to the Common Gaol in and for the said (County) until the (here state the time of Court and place), unless he find new and sufficient sureties to become bound for him in such recognizance as aforesaid ; and whereas rthe said A. B. hath been apprehended under and by virtue of the said Warrant, and being now brought before me the said Justice and surrender- ed by the said C. D. and E. F. his said bail in discharge of their recogni- zances, I have required the said A. B. to find new and sufficient sureties to l>ecome bound for him in such recognizance as aforesaid, but the said A. B. hath now refused so to do ; These are therefore to command you the .said Constables (or other Peace Officers) in Her Majesty's name forthwith >to take and safely to convey the said A. B. to the said Common Gaol SOHEDULKS. 115 '* • '" *^« said (County), and ther^ to ddiver him to the Keeper thereof, together with this precept ; and I hereby c amand 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 the (here stale time and place to which prisoner was originally bound over and Court), to be holden in and for the said (County), unless in the meantime the said A. B. shall find new and sufficient sureties to become bound for him in such recognizance as aforesaid. Given under my Hand and SeaUthis day of of Our Lord , etc. , in the year J. P. [L. S.] ^'1 ^11 i "Ik 4 i PART II. SUMMARY CONVICTIONS. m Summary Convictions. Act 32-33 Victoria, Chapter XXXI. An Act resptcting the duties of Justices of the Peace, out of Sessions, in relation to Sum- mary Convictions and orders. [Assented to 22nd June, 1869.^ T 1 7HEREAS it is expedient to assimilate, amend and con- „ , . solidate the statute law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, respect- ing the duties of Justices of the Peace out of Sessions in relation to Summary Convictions and orders, and to extend the same as so amended to all Canada: Therefore. Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : I. In all cases where an information is laid before one or \Yhen an in- more of Her Majesty's Justices of the Peace for any Territorial formation is Division of Canada, that any person, being within the jurisdic- laid, etc., tion of such Justice or Justices, has committed or is suspected "^'^^^ \ ' to have committed any offence or act over which the Parlia- pg^ce etc ment of Canada has jurisdiction, and for which he is liable such Justices by law, upon a Summary Conviction for the same before a may issue a Justice or Justices of the Peace, to be imprisoned or fined, or summons to otherwise punished, and also in all cases where a complaint accused, is made to any such Justice or Justices in relation to any matter over which the Parliament of Canada has jurisdiction, and upon which he or they have authority by law to make any order for the payment of money or otherwise, such Jus- tice or Justices of the Peace may issue his or their Summons (A), directed to such person, stating shortly the matter of the Form of sum- information or complaint, and requiring him to appear at a mons. certain time and place, before the same Justice or Justices, or before such other Justice or Justices of the same Territorial Division as may then be there, to answer to the said informa- tion or complaint, and to be further dealt with according to law. See remarks under Chapter I. 120 SUMMARY CONVICTIONS. Service of Summons. 2. Every such Summons shall be served by a Constable or other Peace Officer, or other person to whom the same may be delivered, upon the person to whom it is directed, by delivering the same to the party personally, or by leaving it with some person for him at his last or most usual place of abode. See remarks under Chapter II. 3. The Constable, Peace Officer. Or person who serves the same, shall attend at the time and place, and before the Justice or Justices in the Summons mentioned, to depose, if necessary, to the service thereof. See remarks under Cliai)ter II. Proviso as to 4» But nothing hereinbefore contained shall oblige any ex parte cases. Justice or Justices of the Peace to issue any such Summons in any case where the application for any order of Justices is by law to be made ex i>orte. Proof of ser- vice. No objection allowed on account of defect or variance. Proviso. If the sum- mons having been duly served, etc., is not obeyed, the Justice may issue his warrant. Warrant may issue in the first instance on informa- tion support- ed by oath, etc. See remarks under Chapter II. 6« No objection shall be allowed to any information, com- plaint or summons, for any alleged defect therein, in sub- stance or in form, or for any variance between such informa- tion, complaint or summons, and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint ; but if any such variance ap- pears to the Justice or Justices present and acting at such hearing to be such, that the person summoned and appearing has been thereby deceived or misled, such Justice or Justices, may, upon such terms as he or they think fit, adjourn the hearing of the case to a future day. See remarks under Chapter I. 6« If the person served with a Summons does not appear before the Justice or Justices at the time and place mentioned in the Summons, and it be made to appear to the Justice or Justices, by oath or affirmation, that the Summons was duly served what the Justice or Justices deem a reasonable time before the time therein appointed for appearing to the same, then the Justice or Justices, upon oath or affirmation being made before him or them, substantiating the matter of the information or complaint to his or their satisfaction, may, if he or they think fit, issue his or their Warrant (B) to apprehend the party so summoned, and to bring him before the same Justice or Justices, or before some other Justice or Justices of the Peace 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 the Justice or Justices WARRANT. 121 before whom any such information is laid, for any such offence Warrant may as aforesaid, punishable on conviction, upon oath or affirma- issue in the tion being made before him or them substantiating the matter """^^ instance on mforma- of the information to his or their satisfaction, may, if he or tion, support- they think fit, instead of issuing a Summons, issue in the first ed by instance his or their Warrant (C) for apprehending the person oath, etc. against whom the information has been laid, and bringing him before the same Justice or Justices, or before some other Justice or Justices of the Peace in and for the same Territorial Division, to answer to the information and to be further dealt with according to law ; Provided that where a Warrant is Proviso . issued in the first instance, the Justice issuing it shall furnish Copy of war- a copy or copies thereof, and cause a copy to be served on ''^"* *° °e SGrvGQ on each party arrested at the time of such arrest. defendant See remarks under Chapter II. 7. If where a Summons has been issued, and upon the day Justice may and at the place therein appointed for the appearance of the proceed ex party summoned, the party fails to appear in obedience to the •r'^''^'''' , sum- ' ,, .,.,, , ~. .. mons duly Summons, then, if itbep^v^.ed upon oath or affirmation to gg^^g^j is not the Justice or Justices present, that a Summons was duly obeyed, etc. served upon the party a reasonable time before the time appointed for his appearance, the Justice or Justices of the Peace may proceed ex parte to the hearing of the information or complaint, and adjudicate thereon, as fully and eifectually to all intents and purposes as if the party had personally appeared before him or them in obedience to the Summons. See remarks under Chapter III. 8. Every Warrant to apprehend a Defendant that he may Warrant to answer to an information or complaint shall be under the be under L J J hand and seal or hands and seals of the Justice or Justices ^", ^ ,. , seal: to issuing the same, and may be directed to any one or more or whom direct- to all of the Constables (or other Peace Officers) of the Ter- ed and what ritorial Division within which it is to be executed, or to such ^o contain. Constable and all other C ■ nstables in the Territorial Division •within which the Justice or Justices who issued the Warrant hath or have jurisdiction, or generally to all the Constables ^or Peace Officers) within such Territorial Division, and it shall state shortly the matter of the information or complaint on which it is founded, and shall name or otherwise describe the person against whom it has been issued, and it shall order the Constables (or other Peace Officers) to whom it is directed, to apprehend the Defendant, and to bring him before one or more Justice or Justices of the Peace, of the same Territorial Division, as the case may require, to answer to the informa- tion or complaint, and to be further dealt with according to law. See remarks under Chapter II. 9 fl.C.L. 122 SUMMARY CONVICTIONS. m- <^p .If '. ;,) il 1 Duration of ®» ^* shall not be necessary to make the Warrant return- warrant and able at any particular time, but the same may remain in full how to be force until executed ; and the Warrant may be executed by apprehending the Defendant at any place in the Territorial Division within which the Justices who issued the same have jurisdiction, or, in case of fresh pursuit, at any place in the next adjoining Territorial Division, within seven miles of the border of the first mentioned Territorial Division, without having the Warrant backed as hereinafter mentioned. See remarks under Chapter II. What officer lO- I^i all cases where the Warrant is directed to all Con- may execute stables or Peace Officers in the Territorial Division within it, and where, ■^hich the Justice or Justices who issued the same have juris- diction, any Constable or Peace Officer for any place within the limits of the jurisdiction, may execute the Warrant in like manner as if the Warrant was directed specially to him by name, and notwithstanding that the place in which the War- rant is executed be not within the place for which he is a Con- stable or Peace Officer. See remarks under Chapter II. Backing the "* ^^ ^"^ person against whom any Warrant has been warrant in issued be not found within the jurisdiction of the Justice or another juris- Justices by whom it was issued, or, if he escapes into, or is, or is suspected to be in any place within Canada, out of the jurisdiction of the Justice or Justices who issued the Warrant, any Justice of the Peace, within whose jurisdiction such per- son may be or be suspected to be, upon proof upon oath or affirmation of the handwriting of the Justice or Justices issuing the Warrant, may make an endorsement upon it, signed with his name, authorizing the execution of the War- rant 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 wherein the endorsement has been 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. See remarks under Chapter II. diction effect its No objection allowed for want of form but adjourn- ment in cer- tain cases ; 12a No objection shall be taken or allowed to any Warrant issued as aforesaid, 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 Informant or Complainant, but if it appears to the Justice or Justices present and acting at the It return- in in full scuted by 'erritorial ame have ice in the as of the , without d. 3 all Con- 3n within ave juris- ,ce within int in like ;o him by the War- j is a Con- has been Justice or b, or is, or ut of the Warrant, such per- oath or Justices upon it, the War- shall be rant, and cted, and erritorial o execute ustice of offender, who first the same Warrant substance evidence ,nt, but if ng at the INFORMATION OR COMPLAINT. 123 hearing, that the party apprehended under the Warrant has jj^d on what been deceived or misled by any such variance, such Justice or conditions. Justices may, upon such terms as he or they think fit, adjourn the hearing of the case to some future day, and in the mean- time commit (D) the Defendant to the Common Gaol, or other prison, or place of security within the Territorial Division or place wherein the Justice or Justices may be acting, or to such other custody as the Justice or Justices think fit, or may dis- charge him upon his entering into a Recognizance (E), with or without surety or sureties, at the discretion of the Justice or Justices, conditioned for his appearance at the time and place to which the hearing is so adjourned. See remarks under Chapter II. 13. In all cases where a Defendant is discharged upon Where a de- Recognizance and does not afterwards appear at the time and fendant is dis- place in the Recognizance mentioned, the Justice who took'^ '^^ " f, ^ • T- T-i ,, recognizance the Recognizance, or any Justice or Justices who may then be ^^j^^j f^jjg ^q present, having certified (F) upon the back of the Recogni- appear, etc. zance the non-appearance of the Defendant, may transmit such Recognizance to the proper Officer in the Province appointed by law to receive the same, to be proceeded upon in like man- ner as other Recognizances, and such certificate shall be deemed sufficient prima facie evidence of the non-appearance of the said Defendant, and the Justice or Justices may issue his or their Warrant for the apprehension of the Defendant on the information or complaint. See remarks under Chapter II. I4« In any information or complaint or proceedings thereon, in which it is necessary to state the ownership of any property belonging to or in possession of partners, joint tenants, par- ceners or tenants in common, or par indivis, it shall be suf- ficient to name one of such persons, and to state the property to belong to the person so named and another, or others, as the case may be ; and whenever in any information or com- plaint or the proceedings thereon, it is necessary to mention, for any purpose whatsoever, any partners, joint tenants, par- ceners or tenants in common, or par indivis, it shall be suf- ficient to describe them in the manner aforesaid ; and when- ever in any information or complaint, or the proceedings thereon, it is necessary to describe the ownership of any work or building made, maintained or repaired at the expense of the Corporation or Inhabitants of any Territorial Division or place, or of any materials for the making, altering or repairing the same, they may be therein described as the property of the Inhabitants of such Territorial Division or place. See remarks under Chapter I. Description of property of partners, municipal corporations, etc., in any information ' or complaint or proceed- 1 , ings thereon. 124 SUMMARY CONVICTIONS. Aiders and abettors of offences pun- ishable on summary con' viction, how liable. IB. Every person who aids, abets, counsels or procures the commission of any offence which is punishable on sum- mary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction, and shall be liable, on conviction, to the same forfeiture and punishment as the principal offender, and may be proceeded against and con- victed either in the Territorial Division or place where the principal offender may be convicted, or in that in which the offence of aiding, abetting, counselling or procuring was com- mitted. See remarks under Chapter I. Summons to '®" ^^ '* ^^ made to appear to any Justice of the Peace, by person likely the oath or affirmation of any credible person, that any per- to give mate- son within the jurisdiction of such Justice is likely to give material evidence on behalf of the Prosecutor or Complainant or Defendant, and will not voluntarily appear as a witness at the time and place appointed for the hearing of the informa- tion or complaint, the Justice shall issue his Summons (G i) to such person, requiring him to be and appear at a time and place mentioned in the Summons, before the said Justice, or any other Justice or Justices of the Peace for the Territorial Division, who may then be there, to testify what he knows concerning the information or complaint.. rial evidence. See remarks under Chapter 11. Warrant if such person fails to appear. May be backed. 17. If any person so summoned neglects or refuses to appear at the time and place appointed by the Summons, and no just excuse be oftered for such neglect or refusal, then (after proof upon oath or affirmation of the Summons having been served upon him, either personally or by leaving the same for him with some person at his last or most usual place of abode) the Justice or Justices before whom such person should have appeared may issue a Warrant (G 2) to bring and have such person, at a time and place to be therein mentioned, before the Justice who issued the Summons, or before any other Justice or Justices of the Peace for the eame Territorial Division who may be then there, to testify as aforesaid, and the said Warrant may, if necessary, be backed as hereinbefore mentioned, in order to its being executed out of the Jurisdiction of the Justice who issued the same. See remarks under Chapter II. Warrant in ''®' ^^ *^^ Justice is satisfied, by evidence upon oath or the first affirmation, that it is probable that the person will not attend instance. to give evidence without being compelled so to do, then in- COMMITMENT. 125 stead of issuing a Summons he may issue his Warrant (G 3) in the first instance, and the Warrant may, if necessary, be backed as aforesaid. See remarks under section II. I9> If on the appearance of the person so summoned be- Commitment fore the last mentioned Justice or Justices, either in obe- for refusal to dience to the Summons, or upon being brought before him or S've evidence, them, by virtue of the Warrant, such person refuses to be examined upon oath or affirmation concerning the premises, or refuses to take an oath or affirmation, or having taken the oath or affirmation refuses to answer such questions concern- ing the premises as are then put to him, without offering any just excuse for his refusal, any Justice of the Peace then present, and having jurisdiction, may, by Warrant (G 4) com- mit the person so refusing to the Common Gaol or other prison for the Territorial Division where the person there is, there to remain and be imprisoned for any time not exceeding ten days, unless in the meantime, he consents to be examined and to answer concerning the premises. See remarks under Chapter II. 20. In all cases of complaint upon which a Justice or Justices of the Peace may make an order for the payment of money or otherwise, it shall not be necessary that such com- plaint be in writing unless it be required to be so by some particular Act or Law upon which such complaint is framed- See remarks under Chapter I. 2li In all cases of informations for offences or acts pun- ishable upon summary conviction, any yariance between the information and the evidence adduced in support thereof as to the time at which such offence or act is alleged to have been committed, shall not be deemed material, if it be proved that such information was in fact laid within the time limited by law for laying the same ; and any variance between the information and the evidence adduced in support thereof, as to the place in which the oftence or act is alleged to have been committed, shall not be deemed material, if the oftence or act be proved to have been committed within the jurisdic- tion of the Justice or Justices by whom the information is heard and determined. See remarks under Chapter I. 22. If any such variance, or any other variance bet%veen the information and evidence adduced in support thereof, appears to the Justice or Justices present, and acting at the hearing, to be such that the party charged by the informa- tion has been thereby deceived or misled, the Justice or Jus- Certain com- plaints need not be in writing, etc. Certain vari- ances as to time and place between information and evidence not material. But if the De- fendant has been misled, Justice may adjourn the 126 SUMMARY CONVICTIONS. tions. •case ; and on t'ces, upon such terms as he or they think fit, may adjourn what condi- the hearing of the case to some future day, and in the mean- time commit (D) the Defendant to the Common Gaol, or other prison, or to such other cui.tf>'ly as the Justice or Justices think fit, or may discharge him upon his entering into a Recognizance (E), with or without surety or sureties, at the discretion of the Justice or Justices, conditioned for his appearance at the time and place to which the hearing is adjourned. See remarks under Chapter I. Defendant bailed and at proper time 23. In all cases where a Defendant has been discharged upon Recognizance as aforesaid, and does not afterwards !?!^LfJ?^f^""^ appear at the time and place in the Recognizances mentioned, the Justice who took the Recognizance, or any other Justice or Justices who ma; then be there present, having certified (F) upon the back of the Recognizance the non-appearance of the Defendant, may transmit the Recognizance to the proper Officer in the Province appointed by law to receive the same, to be proceeded upon in like manner a3 other Recognizances, and the certificate shall be deemed sufficient prima facie evidence of the non-apfx;arance of the Def^adant. See remarks under Chapter IV. unless spe- cially so provided. Complaints ^^* ^'^ complaints upon which a Justite or Justices of etc., need not the Peace are authorized by law to make an order, and all be on oath, informations for any ofience or act punishable upon summary conviction, unless some particular Act or Law otherwise requires, and except in cases where it is herein otherwise provided, may respectively be made or laid without any oath or affirmation as to the truth thereof. See remarks under Chapter I. 2I6> Ent in all cases of information.s, where the Justice or Justices receiving the same, thereupon issue his or their Warrant in the first instance to apprehend the Defendant, and in every case where the Justice or Justices issue his or their Warrant in the first instance, the matter of the informa- tion shall be substantiated by the oath or affirmation of the Informant, or by some witness or witnesses on his behalf, before the Warrant shall be issued ; and every complaint shall be for one matter of complaint only and not for two or more matters of complaint, and every information shall be for one offence only, and not for two or more offences, and every complaint or information may be laid or made by the Complainant or Informant in person, or by his Counsel or or Attorney, or other person authorized in that behalf. See remarks under Chapter I. Except where warrant is issued on the first instance. Complaint or information to be for one matter only ; may be made by Attorney. INFORMATION OR COMPLAINT. 127 When no time is limited for informa- tion or complaint. Exception as to part of County of Saguenay. . In all cases where no time is specially limited for making any complaint or laying any information in the Act or Law relating to the particular case, the complaint shall be made and the information shall be laid within three months from the time when the matter of the complaint or informa- tion arose, except in that part of the County of Saguenay which extends from Portneuf in the said County, to the eastward as far as the limits of Canada, including all the Islands adjoining thereto, where the time within which such complaint shall be made, or such information shall be laid, shall be extended to twelve months from the time when the matter of the complaint or information arose. See remarks under Chapter I. 27. Every complaint and information shall be heard, tried, determined and adjudged by one Justice or two or more Justices of the Peace, as may be directed by the Act or Law upon which the complaint or information is framed, or by any other Act or Law in that behalf. See remarks under Chapter III. 28. If there be no such direction in any Act or Law, then ,, ^, , , . , . , , . , " there be no the complamt or mformation may be heard, tried, determmed direction in and adjudged by anyone Justice for the Territorial Divi-theAct. sion where the matter of the complaint or information arose. See remarks under Chapter III. As to the hearing of complaints and informa- tion. To be deem- ed an open Court. 29. The room or place in which the Justice or Justices sit to hear and try any complaint or information, shall be deem- ed an open and public Court to which the public generally may have access, so far as the same can conveniently contain them. See remarks under Chapter III. 30. The party against whom the complaint is made or in- formation laid, shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by Counsel or Attorney on his behalf. See remarks under Chapter III. 31. Every Complainant or Informant in any such case shall be at liberty to conduct the complaint or information, and to have the witnesses examined and cross-examined by Counsel or Attorney on his behalf. See remarks under Chapter III. 32. If on the day and at the place appointed by the Sum- j^ ^.^^^ ^j^g mons for hearing and determining the complaint or informa- defendant tion, the Defendant against whom the same has been made does not or laid does not appear when called, the Constable or other ^PP®*'"- person who.served him with the Summons, shall declare upon Defendant may make full defence, and produce witnesses. Prosecutor may be heard by Counsel or Attorney. 128 8UMMAUY CONVICTIONS. Proceetlinc °^^^ '" what manner he served the summons ; and if it ap- cx parte, or pear to the satisfaction of the Justice or Justices that he duly warrant and served the summons, then the Justice or Justices may pro- adjournment. ^g^j.j jQ j^g^j. ^^^ determine the case in the absence of the Defendant, or the Justice or Justices upon the non-appear- ance of the Defendant, may, if he or they think fit, issue his or their warrant in the manner hereinbefore directed, and shall adjourn the hearing of the complaint or information until the Defendant is apprehended. See remarks under Chapter III. When defen- dant has been appre- hended, etc. Proviso. If defendant 33. When the Defendant has been apprehended under the Warrant, he shall be brought before the same Justice or Jus- tices, or sc.ie other J ustice or Justices of the Peace for the same Territorial Division, who shall thereupon, either by his or their Warrant (H) commit the Defendant to the Common Gaol, or other prison, or if he o; they think fit, verbally to the custody of the Constable or other person who appre- hended him, or to such other safe custody as he or they deem fit, and may order the Defendant to be brought up at a cer- tain time and place before him or them, of which order the Complainant or Informant shall have due notice, but no com- mittal under this section shall be for more than one week. See remarks under Chapter II. 34. If upon the day and at the place so appointed, the Defendant appears voluntarily in obedience to the Summons and the com- '" ^^^* behalf served upon him, or is brought before the Jus- plainant doestice or Justices by virtue of a Warrant, then, if the Com. not discharge, piainant or Informant, having had due notice, does not ap- or adjourn- ^^^ ^ himself, his Counsel or Attorney, the Justice or ment on ; . , . . ; . recognizance. Justices shall dismiss the complaint or information, unless for some reason he or they think proper to adjourn the hear- ing of the same until some other day, upon such terms as he or they think fit, in which case the Justice or Justices may commit (D) the Defendant in the meantime to the Common Gaol, or other prison, or to such other custody as he or they think fit, or may discharge him upon his entering into a Recognizance (E) with or without surety or sureties, at the discretion of the J ustice or Justices, conditioned for his appear- ance at the time and place to which such hearing may be adjourned. See remarks under Chapter II. 36. If the Defendant does not afterwards appear at the time and place mentioned in his Recognizance, then the Jus- tice who took the Recognizance, or any Justice or Justices then and there present, having certified (F) on *he back of the Recognizance the non-appearance of the Defendant, may transmit the Recognizance to the proper officer appointed to If defendant afterwards fails to appear, etc. INFORMATION OR COMPLAINT. 129 I appear- may be receive the same, to be proceeded upon in like manner as other KecoKnizances, and such certificate shall be deemed sufficient />W»m /ac/V evidence of the non-appearance of the Defendant. See remarks under Chapter II. 36. ir both parties appear, either personally or by their jf bdth respective Counsel or Attorneys, beiore the Justice or Justice^s parties who are to hear and determine the complaint or information, -ippear. then the said Justice or Justices shall proceed to hear and determine the same. See remarks under Chapter II. 37. In case the Defendant be present at the hearing, the Proceedings substance of the information or complaint shall be stated to '^'" ^'^^ him, and he shall be asked if he has any cause to shew why '^' °' he should not be convicted, or why an order should not be made against him, as the case may be. See remarks under Chapter II . 38. If he thereupon admits the truth of the information Justice may or complaint, and shews no sufficient cause why he should convict, etc., not be convicted, or why an order should not be made against if defenclant ,. , , . T • , • admits the him, as the case may be, the Justice or Justices present at truth the hearing, shall convict him or make an order against him accordingly. See remarks under Chapter II. 39. If he does not admit the truth of the information or jf \^q does not complaint, the Justice or Ju-stices shall proceed to hear the admit the Prosecutor or Complainant and such witnesses as he may truth, etc., , , , . , . jj examination examine, and such other evidence as he may adduce in sup- ^£ ^^.^^^^^^.^^2 port of his information or complaint, and shall also hear the etc. Defendant and such witnesses as he may examine, and such other evidence as he may adduce in his defence, and also hear such witnesses as the Prosecutor or Complainant may exam- ine in reply, if such Defendant has examined any witnesses or given any evidence other than as to his (the Defendant's) general character. See remarks under Chapter II. 40. The Prosecutor or Complainant shall not be entitled As to obser- to make any observations in reply, upon the evidence given nations y by the Defendant, nor shall the Defendant be entitled to make any observations in reply upon the evidence given by the Prosecutor or Complainant in reply. 41. The Justice or Justices, having heard what each party Decision of has to say, and the witnesses and evidence adduced, shall the case, consider the whole matter and, unless otherwise provided, determine the same, and convict or make an Order upon the 130 SUMMARY CONVICTIONS. Defendant, or dismiss the information or complaint, as the case may be. See remarks under Chapter I. Minute of A^. If he or they convict or make an order against the ■conviction to Defendant, a minute or memorandum thereof shall then be be made made, for which no fee shall be paid, and the conviction (I i, 2, 3) or order (K i, 2, 3) shall afterwards be drawn up by the Justice or Justices in proper form, under his or their hand and seal or hands and seals. See remarks under Chapter II. Certificate if he dismiss the com- plaint, etc. 43. If the Justice or Justices dismiss the informatiDn or complaint, he or they may, when required so to do^ m,.,,Ke an order of dismissal of the same (L), and shall give the Defend- ant a certificate thereof (M), which certificate upon being afterwards produced, shall without further proof, be a bar to any subsequent information or complaint for the same mat- ter, against the same party. See remarks under Chapter II. If informa- tion or com- plaint nega- tives any exemption, «tc. Prosecutors and complain- ants in cer- tain cases to be competent witnesses, and examined upon oath, «tc. Proviso. Justice may adjourn hear- ing of any ■case and com- mit defendant or sufter him to go at large on recogni- zance. If the information or complaint in any case negatives any exemption, exception, proviso, or condition in the Statute on which the same is framed, it shall not be necessary for the Prosecutor or Complainant to prove such negative, but the Defendant may prove the affirmative thereof in his defence, if he would have advantage of the same. See remarks under Chapter III. 46. Every Prosecutor of any information not having any ■ pecuniary interest in the result, and every Complainant in any complaint, whatever his interest may be in the result of the same, shall be a competent witness to support such informa- tion or complaint ; and every witness at any hearing shall be examined upon oath or affirmation, and the Justice or Jus- tices before whom any witness appears for the purpose of being examined, shall have full power and authority to ad- minister to every witness the usual oath or affirmation ; pro- vided that no Prosecutor shall be deemed incompetent as a witness on the ground only that he may be liable to costs. See remarks under Chapter III. 46. Before or during the hearing of any information or complaint, any one Justice or the Justices present, may in his or their discretion, adjourn the hearing of the same to a cer- tain time and place to be then appointed and stated in the presence and hearing of the party or parties, or of their re- spective Attorneys or Agents then present, and in the mean- time the Justice or Justices may suffer the Defendant to go at large or may commit (D) him to the Common Gaol or other FORM OF CONVICTIONS. 131 prison, within the Territorial Division for which the Justice or Justices are then acting, or to such other safe custody as the Justice or Justice-- think fit, or may discharge the Defend- ant upon his Recognisance (E), with or without sureties, at the discretion of the Justice or Justices, conditioned for his Proviso, appearance at the time and place to which such hearing or further hearing is adjourned, but no such adjournment shall be for more than one week. See remarks under Chapter III. 47. If at the time and place to which the hearing or fur- If defendant ther hearing has been adjourned, either or both of the parties ^'' prosecutor do not appear, personally or by his or their Counsel or Attor-^j^g case mav' neys respectively, before the Justice or Justices or such other nevertheless Justice or J, stices as may then be there, the Justice or Jus- be heard, tices then there present, may proceed to the hearing or further hearing as if the party or parties were present. See remarks under Chapter III. 48. If the Prosecutor or Complainant do not appear, the If the prose- Justice or Justices may dismiss the information with or with- cutor does out cos as to him or them seems fit. ^° appear. ^^e remarks under Chapter III. 49. In all cases when a Defendant is discharged upon his if defendant Recognizance, and does not afterwards appear at the time and fails to re- place mentioned in the Recognizance, the Justice or Justices ^PP^*^' ^^^• who took the Recognizance, or any other Justice or Justices who may then be there present, having certified (F) on the back of the Recognizance the non-appearance of the accused party, may transmit such Recognizance to the proper officer appointed to nxeive the same by the laws of the Province in which the Recognizance was taken, to be proceeded upon in like manner as other Recognizances, and such certificate shall be deemed sufficient prima facie evidence of the non-appearance of the Defendant. See remarks under Chaptor III. 50. In all cases of conviction where no particular form of Form of con- conviction is given by the Act or Law creating the offence or victions may resulatinc the prosecution for the same, and in all cases of , ■ . . . "^ dule where no conviction upon Acts or Laws hitherto passed, whether any form is given particui .r form of conviction has been therein given or not, in any future the Justice or Justices who convict, may draw up his or their Statute. conviction, on parchment or on paper, in such one of the forms of conviction (I i, 2, 3) as may be applicable to the case, or to the like effect. See remarks under Chapter II. mm 132 SUMMARY CONVICTIONS. Where no spe- 51. In case an order be made, and no particular form of cial form of order is given by the Act or Law giving authority to make given form in ^^^^ order, and in all cases of orders made under the author- schedule may ity of any Acts or Laws hitherto passed, whether any parti- be adopted, cular form of order is therein given or not, the Justice or Justices by whom the order is made, may draw up the same in such one of the forms of orders (K i, 2, 3) as may be ap- plicable to the case, or to the like effect. See remarks under Chapter II. Defendant to ^2. In all cases when by any Act or Law, authority is given be served with to commit a person to prison, or to levy any sum upon his goods copy of ^he or chattels by distress, for not obeying an order of a Justice distress or °^ Justices, the Defendant shall be served with a copy of the commitment. Minute of the Order before any Warrant of commitment or of distress is issued in that behalf, and the Order or Minute shall not form any part of the Warrant of commitment or of distress. Justices may award costs not inconsis- See remarks under Chapter IV. 53. In all cases of Summary Conviction, or of Orders made by a Justice or Justices of the Peace, the Justice or tent with the justices making the same, may in his or their discretion, J , J ^ award and order in and by the conviction or order, that the Defendant shall pay to the Prosecutor or Complainant such costs as to the said Justice or Justices 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. See remarks under Chapter IV. Costs may be 5^^ jj^ cases where the Justice or Justices, instead of con- defendant victing or making an order, dismiss the information or com- when the case plaint, he or they, in his or their discretion, may, in and by is dismissed, his or their order of dismissal, award and order that the Prosecutor or Complainant shall pay to the Defendant such costs as to the said Justice or Justices seem reasonable and consistent with law. See remarks under Chapter IV. Costs so al- lowed shall be specified. 55. The sums so allowed for costs shall in all cases be specified in the conviction or order, or order of dismissal, and the same shall be recoverable in the same manner and under the same Warrants as any penalty adjudged to be paid by the conviction or order is to be recovered. See remarks under section IV. And may be 56. In cases where there is no such penalty to be recover- recovered by ed, such costs shall be recoverable by distress and sale of the distress. goods and chattels of the party, and in default of distress, by WARRANT. 133 • form of to make 2 author- ny parti- ustice or the same ly be ap- :y IS given his goods a Justice py of the nent or of r Minute lent or of f Orders Justice or iiscretion, ■, that the lant such ble in that d by law zes of the ad of Con- or com- n and by that the ant such lable and cases be issal, and ind under aid by the e recover- ;ale of the istress, by imprisonment, with or without hard labour, for any time not exceeding one month, unless the costs be sooner paid. See remarks under Chapter lY. B7. Where a conviction adjudges a pecuniar\- penalty or , ■" * ^ . t~ J Justice may compensation to be paid, or where an order requires the pay- issue warrant meHt of a sum of money, and by the Act or Law authorizing of distress in such conviction or order, the penalty, compensation, or sum cases where a of money is to be levied upon the goods and chattels of the |l ^.\ \ Defendant, by distress and sale thereof; and also in cases has been where, by the Act or Law in that behalf, no mode of raising adjudged. or levying the penalty, compensation or sum of money, or of enforcing the payment of the same, is stated or provided, the Justice or any one of the Justices making such conviction or order, or any Justice of the Peace for the same Territorial Division, may issue his Warrant of Distri.'ss (X i. 21 for the purpose of levying the same, which Wairant of Distress shall be in writing, under the hand and seal of the Justice making the same. See remarks under Chapter IV. 68> If, after delivery of the Warrant of distress to the Con- in certain stable or Constables to whom the same has been directed to cases warrant be e.vecuted, sufficient distress cannot be found within the '".^J back- ed for execu- limits of the jurisdiction of the Justice granting the Warrant, ^j^j, jjj ^^_ then upon proof being made upon oath or affirmation of the other juris- handwriting of the Justice granting the Warrant, before any diction. Justice of any other Territorial Division, such Justice shall thereupon make an endorsement (N 3) on the Warrant, :gned with his hand, authorizing the execution of the Warrant within the limits of his jurisdiction, by virtue of which War- rant and endorsement the penalty or sum, and costs, or so much thereof as may not have been before levied or paid, shall be levied by the person bringing the Warrant, or by the person or persons to whom the W^arrant was originally directed, or by any Constable or other Peace Officer of the last men- tioned Territorial Division, by distress and sale of the goods and chattels of the Defendant therein. See remarks under Chapter IV. Whenever it appears to any Justice of the Peace to whom application is made for any Warrant of distress, that the issuing thereof would be ruinous to the Defendant and his family, or whenever it appears to the Justice, by the confes- sion of the Defendant or otherwise, that he hath no goods and chattels whereon to levy such distress, then the Justice, if he deems it fit, instead of issuing a Warrant of distress, may (O 1,2) commit the Defendant to the Common Gaol, or other prison in the Territorial Division, there to be imprisoned When the issuing of a warrant would be ruinous to defendant, or there are no goods. Justice may commit him. 134 SUMMARY CONVICTIONS. until it is returned. with or without hard labour, for the time and in the manner the Defendant could by law be committed in case such war- rant of distress had issued, and no goods or chattels had been found whereon to levy the penalty, or sum and costs. See remarks under Chapter IV. When dis- Q0, jn all cases where a Justice of the Peace issues any J r n j„„t ' ^^rrant of distress, he may suffer the Defendant to go at may be bailed ^^^S^- o"" verbally, or by a written warrant in that behalf, may or detained order the Defendant to be kept and detained in safe custody, until return has been made to the Warrant of distress, unless the Defendant gives sufficient security, by Recognizance or otherwise, to the satisfaction of the Justice, for his appear- ance before hira at the time and place appointed for the return of the Warrant of distress, or before such other Justice or Justices for the same Territorial Division, as may then be there. See remarks under Chapter IV. 6lf In all such cases where a Defendant gives security by Recognizance, and does not afterwards appear at the time and place in the said Recognizance mentioned, the Justice who hath the same, or any Justice or Justices who may then be there present, upon certifying (F) on the back of the Recogni- zance the non-appearance of the Defendant, may transmit the Recognizance to the proper officer appointed by law to receive the same, to be proceeded upon in like manner as other Recognizances, and such certificate shall be deemed suf- ficient prima facie evidence of the non-appearance of the Defendant. If defendant, does not after- wards appear, the recogni- zance to be certified and transmitted to the proper officer. In default of sufficient dis- tress. Justice may commit defendant to prison. See remarks under Chapter IV. 62> If at the time and place appointed for the return of any Warrant of distress, the Constable, who has had exe- cution of the same returns (N 4) that he could find no goods or chattels whereon he could levy the sum or sums therein mentioned, together with the costs of, or occasioned by the levy of the same, the Justice of the Peace before whom the same is returned may issue his Warrant of commit- ment (N 5) directed to the same or any other Constable, reciting the conviction or order shortly, the issuing of the Warrant of distress, and the return thereto, and requiring the Constable to convey the Defendant to the Common Gaol, or other prison of the Territorial Division for which the Justice is then acting, and there to deliver him to the Keeper thereof, and requiring the Keeper to receive the Defendant into such gaol or prison, and there to imprison him, or to imprison him and keep him to hard labour in the manner and for the time directed by the Act or La>v on which APPEAL. 135 the conviction or order mentioned in the Warrant of distress is founded, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and dso the costs and charges of the commitment and conveyin,^ of the Defendant to prison, if such Justice thinks fit so to order (the amount Proviso • thereof being ascertained and stated in such commitment,) be Term limited. sooner paid ; but if no term of imprisonment be specified in the Act or Lav?, the period for which the Justice shall order the Defendant to be so imprisoned, shall not exceed three months. See remarks under Chapter IV. Imprison- ment for a subsequent offence to commence at expiration of that for a pre- vious offence. 63. Where a Justice or Justices of the Peace, upon any information or complaint adjudges or adjudge the Defendant to be imprisoned, and the Defendant is then in prison under- going imprisonment upon conviction for any other offence, the Warrant of commitment for the subsequent offence shall be forthwith delivered to the gaoler or other Officer to whom it is directed, and the Justice or Justices who issued the same, if he or they think fit, may award and order therein that the imprisonment for the subsequent offence shall com- mence at the expiration of the imprisonment to which the Defendant was previously sentenced. See remarks under Chapter IV. 64. When any information or complaint is dismissed jf jnforma- with costs, the sum awarded for costs in the Order for tion be dis- dismissal may be levied by distress [Q i] on the goods and "hissed, costs chattels of the Prosecutor or Complainant in the manner "^^^ ^ j u ^ recovered by aforesaid; and m default of distress or payment, the Prosecu- distress on tor or Complainant may be committed [Q 2] to the common prosecutor. gaol or other prison, in manner aforesaid, for any time not exceeding one month, unless such sum, and all costs and charges of the distress, and of the commitment and conveying of the Prosecutor or Complainant to prison (the amount thereof being ascertained and stated in the commitment), be sooner paid. See remarks under Chapter IV. 65. Unless it be otherwise provided in any special Act Appeal given under which a conviction takes place or an order is made by from any con- a Justice or Justices of the Peace, or unless some other Court ^'^^'^"^ ^"^ of Appeal having jurisdiction in the premises is provided by ticeorjustices. an Act of the Legislature of the Province, within which such of the Peace, conviction takes place or such order is made, any person who thinks himself aggrieved by any such conviction or order, may appeal, in the Province of Quebec, to the Court of Queen's Bench, Crown side; in the Province of Ontario, to the Court of General or Quarter Sessions of the Peace ; in the Province of Nova Scotia, to the County Court of the ^ 136 SUMMARY CONVICTIONS. district where the cause of the information or complaint arose ; in the Province of New Brunswick, to the County Court of the District where the cause of the information or complaint arose ; in the Province of Manitoba, to the County Court of the County where the cause of the information or complaint arose ; and in the Province of British Columbia, to the County or District Court at the sittings thereof, which shall be held ner.rert to the place where the cause of the in- •Conditions of ^°'^'"^*'°" °^ complaint arose. In case some other Court of appeal. Time for -^'^'leal. Appeal be provided in any Province as aforesaid, the appeal shall be to such Court. Every right of appeal shall, unless it be otherwise provided in any special Act, be subject to the conditions iollowing (40 Vic, cap. 27). 1. If the conviction or order be made more than twelve days before the sittings of the Court to which the appeal is given, such appeal shall be made to the then next sittings of the Court; but if the conviction or order be made within twelve days of the sittings of such Court, then to the second sittings next after such conviction or order ; 2. The person aggrieved shall give to the Prosecutor or Complainant, or to the convicting Justice or one of the con- victing Justices for him, a notice in writing of such appeal, within four days after such conviction or order ; 3. The person aggrieved shall either remain in custody until the holding of the Court to which the appeal is given, or shall enter into a Recognizance, with two sufficient sureties, before a Justice or Justices of the Peace, conditioned person- ally to appear at the said Court, and to try such appeal and to abide the judgment of the Court thereupon ; and to pay such costs as shall be by the Court awarded ; or if the appeal be against any conviction or order, whereby only a penalty or sum of money is adjudged to be paid, the person aggrieved may (although the order direct imprisonment in default of payment), instead of remaining in custody as aforesaid, or giving such Recognizance as aforesaid, deposit with the Jus- tice or Justices convicting or making the order, such sum of money as such Justice or Justices deem sufficient to cover the sum so adjudged to be paid, together with the costs of the con- viction or order, and the costs of the appeal ; and upon such Recognizance being given, or such deposit made, the Justice or Justices before whom such Recognizance is entered into, or deposit made, shall liberate such person if in custody. Court to hear ■^"'^ *^® Court to which such appeal is made shall there- and determine upon hear and determine the matter of appeal, and make the appeal. such order therein, with or without costs to either party, in- If affirmed or j,jmjijjg j-Qg^g ^f ^^g Court below, as to the Court seems meet ; proceedings and, in case of the dismissal of the appeal or the affirmance Notice to o» for prosecu tion. Persons so appealing to remain in custody, or give security or in certain cases to de- posit money as security. on' —If of the conviction or order, shall order and adj adge the ofifen- APPEAL. 137 implaint County ation or County ation or mbia, to if, which f the in- Court of e appeal unless it ct to the ,n twelve appeal is ittings of le within le seconJ ■ecutor or the con- h appeal, 1 custody Is given, or : sureties, id person- 3peal and nd to pay he appeal penalty or aggrieved efault of resaid, or the Jus- 1 sum of cover the jf the con- ipon such le Justice id into, or dy. lall there- and make party, in- ems meet ; iffirmance the offen- der to be punished according to the conviction, or the Defen- quashed — dant to pay the amount adjudged by the said order, and power to to pay such costs as may be awarded ; and shall, if necessary, nroreedincs issue process for enforcing the judgment of the Court ; and Memoran- in any case where, after any such deposit has been made dum of aforesaid, the conviction or order is affirmed, the Court may quashing. Its effect order the sum thereby adjudged to be paid, together with the costs of the conviction or order, and the costs of the appeal, to be paid out of the money deposited, and the residue, if any, to be repaid to the Defendant ; and in any case where, after any such deposit the conviction or order is quashed, the Court shall order the money to be repaid to the Defendant ; and the said Court shall have power, if necessary, from time to time, by order endorsed on the conviction or order, to ad- journ the hearing of the appeal from one sittings to another, or others, of the said Court. In every case where any conviction or order is quashed on appeal as aforesaid, the Clerk of the Peace, or other proper officer, shall forthwith endorse on the conviction or order a memorandum that the same has been quashed ; and whenever any copy or certificate of such conviction or order is made, a copy of such memorandum shall be added thereto, and shall, when certified under the hand of the Clerk of the Peace, or of the proper officer having the custody of the same, be suffi- cient evidence in all Courts and for all purposes, that the conviction or order has been quashed. See remarks under Chapter V. 00a When an appeal has been lodged in due form and in Court appeal- compliance with the requirements of this Act, against any ^^ to, may summary conviction or decision, the Court of General oi",ur'totrv Quarter Sessions of the Peace or Court appealed to, may at the case, the request of either Appellant or Respondent, empannel a Jury to try the facts of the case, and shall administer to such Jury the li Mowing oath : " You shall well and truly try the facts in dispute in the Oath of matter of A. B., (the informant) again.st C. D., (the defendant), Juror and a true verdict give according to the evidence : So help you God." And the Court, on the finding of the Jury, shall give such judgment judgment as the law requires ; and if a Jury be not so demanded, the Court shall try and be the absolute judges as well of the fact as of the law in respect to such conviction or decision ; at the hearing of any appeal under the said Act or any Act amending it, any of the parties to the appeal may 10 fl.O.L. 138 SUMMARY CONVICTIONS. Appeal not to be based on alleged defect in form or substance, unless the same was objected to before the Justice, and e refused to adjourn the case, etc. call witnesses and adduce evidence, who, or which may not have been called or adduced at the original hearing. (See 42 Vic. chap. 44, 1879.) See remarks under Chapter V. 07. No judgment shall be given in favor of the Appellant if the appeal is based on an 6bjection to any information, complaint or Summons, or to any Warrant to apprehend a Defendant, issued upon any such information, complaint or Summons, for any alleged defect therein in substance or in form, or for any variance between such information, com- plaint, Summons or Warrant and the evidence adduced in support thereof at the hearing of such information or com- plaint, — unless it shall be proved before the Court hearing the appeal that such objection was made before the Justice or Justices of the Peace before whom the case was tried and by whom such conviction, judgment or decision was given — nor unless it is proved that notwithstanding it was shewn to such Justice or Justices of the Peace, that by such variance the person summoned and appearing or a: prehended, had been deceived or misled, such Justice or Justices refused to adjourn the hearing of the case to some further day, as pro- vided by this Act. See remarks under Chapter V. 68. In all cases of appeal from any summary conviction or order, had or made before any Justice or Justices of the Peace, the Court to which such appeal is made shall hear and determine the charge or complaint on which such con- viction or order has been had or made upon the merits, not- withstanding any defect of form or otherwise in such con- viction or order ; and if the person charged or complained againr^t is found guilty, the conviction or oider shall be affirm- ed and the Court shall amend the same if necessary, and any conviction or order so affirmed, or affirmed and amended, shall be enforced in the same manner as convictions or orders affirmed in appeal. See remarks under Chapter V. If appeal is 6®- ^^'^ ^^^ *^^ more effectual prevention of frivolous abandoned, appeals, the Court of General or Quarter Sessions of the after notice Peace or other Court or Judge to whom an appeal is made, to\e recover "P°" proof of notice of the appeal to such Court having been g,j^ given to the person entitled to receive the same, though such appeal was not afterwards prosecuted or entered, may, if such appeal has not been abandoned according to law, at the same Court for which such notice was given, order to the party or parties receiving the same such costs and charges as by the said Court or Judge may be thought reasonable and Decision to be given on the merits notwithstand- ing defect of form in conviction, which may be amended. CONVICTION. i3jy just, to be paid by the party or parties giving such notice, such costs to be recoverable in the manner provided by this Act for the recovery of costs upon an appeal against an order or conviction. See remarks under Chapter IV. 70. In case an appeal against any conviction or order be ProccedinRS decided in favor of the RcsjKjndents, the Justice or Justices after appeal. who made the conviction or order, or any other Justice of the Peace for the same Territorial Division, may issu.i the Warrant of distress or commitment for execution of the same, as if no appeal had been brought. 71. No conviction or order affirmed, or affirmed and j^q ^.Q^yj^., amended in appeal shall be quashed for want of form, or be tion approved removed by certiorari into any of Her Majesty's Superior "lay be re- Courts of Record ; and no Warrant or commitment shall be ™°X*^" "f ,,..,, ^ ,^ ,. ,,., certiorari , e\c. held void by reason of any defect therem, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. (33 Vic. c. 27, s. 2.) See remarks under Chapter V. Justice con- victing to return the conviction. 72. Every Justice of the Peace before whom any person shall be summarily convicted of any offence by virtue of this Act, shall transmit the conviction to the Court of General or Quarter Sessions or to the Court discharging the functions of the Court of General or Quarter Sessions as aforesaid, or to any other Court or Judge to which the right to appeal is given by section sixty-five of this Act, as the case may be, in and lor the District, County or place wherein the oflence has been committed, before ti e time when an appeal from such conviction could be heard, there to be kept by the proper officer among the records of the Court ; and if such convic- tion has been appealed against, and a deposit of money made, shall return the deposit into the said Court ; and upon any indictment or information against any person 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 suf- ficient evidence to prove a conviction for the former offence, and the conviction shall be presumed to have been unappealed against, until the contrary be shown. See remarks under Chapter II. 73. In all cases where it appears by the conviction, that Effect of con And the de- posit money if any. Certificate of conviction. the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed viction if no appeal. It 140 SUMMARY CONVICTIOXH. To whom costs to be payable. Enforcement of payment, against the conviction where an appeal is allowed, or if ap- pealed against, the conviction has been affirmed, such con- viction shall not afterwards be set asi.;^ or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case. See remarks under Chapter II. 74. If upon any Appeal the Court trying the Appeal orders either party to pay costs, the order shall direct the costs to be paid to the Clerk of the Peace or other proper officer of the Court, to be b) him paid over to the party entitled to the same, and shall state within what time the costs shall be paid. See remarks under ('liuijtfcr IV. 75. If the same be not paid within the time so limited, and the party ordered to pay the same has not been bound by any Recognizance conditioned to pay such costs, the Clerk of the Peace or his Deputy, on application of the party entitled to the costs, or of any person on his behalf and on payment of any fee to which he may be entitled, shall grant to the party so applying, a Certificate [K] that the costs have not been paid, and upon production of the Certificate to any Justice or Justices of the Peace foi the same Territorial Division, he or they may enforce the payment of the costs by Warrant of Distress [S ij in manner aforesaid, and in default of dis- tress, he or they may commit [S 2] the party against whom the Warrant has issued in manner hereinbefore mentioned, for any time not exceeding two months, unless the amount of the costs and all costs and charges of the distress and also the costs of the commitment and conveying of the party to prison, if the Justice or Justices think fit so to order, (the amount thereof being ascertained and stated in the commit- ment), be sooner paid. Sec remarks under Chapter IV. lifiticc". to ^®' i-^''^i"y Justice of the Peace, shall m?.]-.c a Return in make leturns ..riting under his hand of all convictions made by him to the to the Quarter j^ext ensuing General or (Quarter Sessions of the Peace, or to besr^ioi! ■. o ^j^g j^^^j. term or sitting of any Court having jurisdiction in appeal as hereinbefore provided, at which, in either case, the appeal can be heard, for the District or County or place in which such conviction takes place, and of the receipt and application by him of the moneys received from the Defen- dants (and in the case of any convictions before two or more Justices, such Justices being present and joining therein, shall make a joint Return thereof,) in the following form : By distress or imprison- ment. all coiivic tions and fines, etc. RETURN. 141 n if ap- ich con- cated in but the iction as 5 Appeal 1 direct iT proper he party time the lited, and id by any :rk of the ntitled to lyment of the party not been [ustice or Division, Warrant lit ofdis- ist whom lentioned, amount and also party to rJer, (the commit- Return in im to the ace, or to diction in case, the place in :eipt and le Defen- or more therein, form : Return of Convictions made by me (or us, as the case may be) in the month of i8. u o o B c n t: c Q o B a J5 u /^ c o B o o v ■*-• Q 60 B I B ' O u u <0 u 4) B '43 a a « . O u S O ^ O 1) *'.y ^^ .■fa -3 IB S J2 > o t3 . 3 O I— o ^ If not paid, why not, and general obser- vations, if any. A. B., Convicting Justice, or A. B. and C. D., Convicting Justices, (as the case may be.) See infra, 78a. 77. And any Justice or Justices to whom any such moneys Returns of may be afterwards paid, shall make a Return of the receipts subsequent and application thereof, to the next General or Quarter Ses- receipts, etc. sions of the Peace, or other Court as aforesaid, which Return shall be filed by the Clerk of the Peace, with the records of his office. See remarks under Chapter II. 78. In case the Justice or Justices, before whom any such penalty on conviction takes place, or who receives any such moneys, Justices of neglect or refuse to make such Return thereof, or in case any |"^ Peace neg- such Justice or Justices wilfully make a false, "•'''^>al or in- ^^^^ j j^j^ correct return, or wilfully receive a larger amount of fees the provisions- than by law they are authorized to receive, such Justice or of this Act as Justices, so neglecting, or refusing, or wilfully making such ^° returns, false, partial or incorrect Return, or wilfully receiving a larger amount of fees as aforesaid, shall forfeit and pay the sum of eighty dollars, together with full costs of suit, to be recover- ed by any person suing for the same by action of debt or in- formation in any Court of Record in the Province in which such Return ought to have been or is made, one moiety whereof shall be paid to the party suing, and the other moiety into the hands of Her Majesty's Receiver-General to and for the public uses of the Dominion. 142 SUMMARY CONVICTIONS. At what time and to whom returns re- quired by sec- tion seventy- six shall be made. What cases any such returns shall include — How posted up and pul> lished, etc — Copy (.0 Minister of Finance — Provisions (jf section seventy-eight to apply— Actions for such penalties limited to six months after cause. Clerk of the Peace, etc., to publish and post up the PROVISIONS AS TO SECTIONS 76-78 BY ACT, 33 VIC. CAP. 27, S. 3. 78a> And whereas, in some of the Provinces of Canada, the terms or sittings of the General Sessions of the Peace or other Courts to which, under section seventy-six of the said Act, Justices of the Peace are required to make Returns of Con- victions had before them, may n( ' ■• held as often as once in every three months; and it is ole that such Returns should not be made less frequently : Therefore it is further enacted, that the Returns requiiod by the said seventy-sixth section of the Act hereinbefore cited sbnll be made by every Justice of the Peace, quarterly, on or before the second Tues- day in each of the months of March, June, September and December, in cich year, to the Clerk of the Peace or other prfiper oflficor for receiving the same uiulur the said Act, not- withstanding the Cieneral or Quarter Sessions of the Peace of the County in which such conviction was had, may not be held in the months or at the times aforesaid ; and every such Return shall include all convictions and other matters men- tioned in the said section seventy-six, and not included in some previous Return, and shall, by the Clerk of the Peace or otner proper officer receiving i* ' -^ fixed up and published, and a copy thereof shall be ti 'tted to the Minister of Finance, in the manner require^ .»e eightieth and eighty- first sections of the said Act; and the provisions of the seventy-eighth section of the said Act, and the penalties thereb} imposed, and all the other provisions of the said Act, shall hereafter apply to the Returns hereby required, and to any offence or neglect committed with respect to the making thereof, as if the periods hereby appointed for making the said Returns had been mentioned in the said Act instead of the periods thereby appointed for the same. 79. All prosecutions for penalties arising under the pro- visions of the next preceding section shall be commenced within six months next after the cause of action accrues, and the same shall be tried in the District, County or place wherein such penalties have been incurred, and if a verdict or judgment passes for the Defendant, or the Plaintiff becomes non-suit, or discontinues the action after issue joined, or if upon demurrer, or otherwise, judgment be^given against the Plaintiff, the Defendant shall recover his full costs of suit, as between Attorney and Client, and shall have the like remedy for the same, as any Defendant hath by law in other cases. See remarks under Chapter I. 80. The Clerk of the Peace of the District or County in which any such Returns are made of the proper officer other than the Clerk of the Peace to whom such Returns are made, shall, within seven days after the adjournment of the next WARRANT. 143 ensuing General or Quarter Sessions, or of the term or sit- ting of such other Court as aforesaid, cause the said Returns to be published in one public newspaper, in the District or County, or if there be no such newspaper, then in a news- paper of an adjoining District or County, and shall also fix up in the Court House of the District or County, and also in a conspicuous place in the Office of such Clerk of the Peace, for public inspection, a Schedule of the Returns so made by such Justices ; and the same shall continue to be so fixed up, and exhibited until the end of the next ensuing General or Quarter Sessions of the Peace or of tie term or sitting of such oth'> i^ourt ns aforesaid, and for every Schedule so made and exhibited by the said Clerk of the Peace, he shall be allowed the expense of publication, and such fee as may be fixed by competent authority. See remarks under Chapter IV. 81. The Clerk of the Peace or other officer as last afore- said of each District or County, within twenty days after the end of each General or Quarter Sessions of the Peace, or the sitting of such Court as aforesaid, shall transmit to the Minis- ter of Finance, a true copy of all such Returns made within his District or County. See remarks under Chapter IV. 82i Nothing in the six next preceding sections shall have the eftect of pre\(Mitiiig nny person aggrieved, from prosecut- ing by indictment, a Justice of the Peace, for any offence, the commission of which would subject him to indictment at the time of the coming into force of this Act. 83. In all cases where a Warrant of Distress has issued against any person, and such person pays or tenders to the Constable having the execution of the same, the sum or sums in the Warrant mentioned, together with the amount of the expenses of the distress up to the time of payment or tender, the Constable shall cease to execute the same. See remarks under Chapter IV. 84>a In all cases in which any person is imprisoned for non-pavment of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he is imprisoned, the sum in the Warrant of Commitment men- tioned, together with the amount of the costs, charges and expenses (if any) therein also mentioned, and the keeper shall receive the same, and shall thereupon discharge the person, if he be in his custody for no other matter. See remarks under Chapter IV. 8Ba In all cases of summary proceedings before a Justice or Justices of the Peace out of Sessions, upon any information or complaint, one Justice may receive the information or n turns so made. Copy of te- turns to be sent to Minis- ter of Finance Not to pre- vent prosecu- tion of a Justice in default. In case of tender or payment of the amount of distress. Payment may be made to the keeper of the prison. In what cases one Justice may act. 144 SUMMARY CONVICTIONS. complaint, and grant a Summons or Warrant thereon, and issue his Summons or Warrant to compel the attendance of any witnesses for either party, and do all other acts and mat- ters necessary, preliminary to the hearing, even in cases where by the Statute in that behalf, the information or com- plaint mu3t be heard and determined by two or more Justices. See remarks under Chapter FI. After hear- 86. After a case has been heard and determined, one ing, etc. Justice may issue all Warrants of distress or commitment thereon. See remarks under Chapter III. Proceedings 87. It shall not be necessary that the Justice who acts after judg- before or after the hearing, be the Justice or one of the Jus- "^^"^ tices by whom the case is or was heard and determined. In case two Justices are required. Amount to be paid to party aggrieved limited. 88. In all cases where by any Act or Law it is required that an information or complaint shall be heard and deter- mined by two or more Justices, or that a conviction or order shall be made by two or more Justices, such Justices must be present and acting together during the whole of the hearing and determination of the case. See remarks under Chapter III. 89. When several persons join in the commission of the same offence and upon conviction thereof, each is adjudged to forfeit a sum equivalent to the value of the property, or to the amount of the injury done, no further sum shall be paid to the party aggrieved than the amount forfeited by one of such ofienders only, and the corresponding sum, forfeited by the other offender, shall be applied in the same manner as other penalties imposed by a Justice or Justices of the Peace are directed to be applied. See remarks under Chapter II. 90. The evidence of the party aggrieved and also the evi- dence of any inhabitant of the District, County or place in which any offence has been committed, shall be admitted in proof of the oftence, notwithstanding that any forfeiture or penalty incurred by the offence may be payable to any public fund of such District, County or place. See remarks under Chapter II. „ . 91. Any one Judge of Sessions of the Peace, Recorder, istrates to Police Magistrate, District Magistrate, or Stipendiary Magis- have the trate, appointed for any District, County, City, Borough, powers of two Town, or Place, and sitting at a Police Court or other place justices. appointed in that -behalf, shall have full power to do alone whatever is authorized by this Act to be done by two or more Justices of the Peace ; and the several forms hereinafter con- Party aggriev- ed and certain others may be witnesses. POWER OF JUSTICE. 145- tained may be varied so far as it may be necessary to render them applicable to Police Courts, or to the Court or other place of sitting of such functionary as aforesaid. See remarks under Chapters I and III. 92. Any Judge of Sessions of the Peace, Police Magis- Power to trate, District Magistrate, or Stipendiary Magistrate, sitting preserve at any Police Court or other place appointed in that behalf, °'''i6r' ^*c- shall have such and like powers and authority to preserve order in the said Courts during the holding thereof, and by the like ways and means as now by law are, or may be exercised and used in like cases and for the like purposes by any Courts of Law in Canada, or by the Judges thereof respectively, during the sittings thereof. 93. Any Judge of the Sessions of the Peace, Police Magis- Power to trate, District Magistrate, or Stipendiary Magistrate, in all punish resist- cases where any resistance is offered to the execution of any ^^^^ *° P'"0" cess etc. Summons, Warrant of Execution or other Process issued by him, may enforce the due execution of the same by the means provided by the law for enforcing the execution of the Process of other Courts in like cases. See remarks under Chapter III. 94. The expression "Territorial Division " whenever used Interpreta- in this Act, shall mean — District, County, Union of Counties, ^ion of cer- Township, City, Town, Pari'i'ii or other Judicial Division or ^'" ^^^^ ^' place to which the context may apply ; and the words "Dis- trict or County " shall include any territorial or judicial divi- sion or place, in and for which there is such Judge, Justice, Justice's Court, officer or prison, as is mentioned in the con- text, and to which the context may apply. See remarks under Chapter I. 95. The words " Common Gaol " or "Prison," whenever The same they occur in this Act, shall be held to mean any place other than a Penitentiary where parties charged with offences against the law are usually kept and detained in custody. 96. The several forms in the Schedule to this Act con- Forms, tai.ied, varied to suit the case, or forms to the like effect, shall be deemed good, valid and sufficient in law. 97. This Act shall commence and take effect on the first Commence- day of January, in the year of our Lord one thousand eight ment of Act. hundred and seventy. 146 SUMMARY CONVICTIONS. SCHEDULE. (A) See ■ I. •SUMMONS TO THE DEFENDANT UPON AN INFORMATION OR COMPLAINT. Canada, Province of , District for County, United Counties, or as the case may be), of To A. B. of {labourer) Whereas information hath this day been laid (or complaint hath this day been made) befo.a the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, City, Town, etc., as the case may be) of , for that you {here state shortly the matter of the information or complaint) : These are therefore to command you, in Her Majesty's name, to be and appear on , at o'clock in the forenoon, at , before me, or such Justice or Justices of the Peace for the said District {or County, United Counties, or as the case may be), as may then be there, to answer to the said information {or complaint), and to be further dealt with according to law. Given under {my) Hand and Seal, this the year of our Lord , at County, or as the case may be) aforesaid. day of , in , in the District (or J. S. [L. s.] SCHEDULES. 147 (B) See s. 6. WARRANT WHEN THE SUMMONS IS DISOBEYED. Canada, Province of District {or County, United Counties, or | as the case may be), of ; To all or any of the Constables or other Peace Officers in the District {or County, United Counties, or as the case may be) of Whereas on last past, information was laid {or complaint was made) before , {one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case may be), of , for that A. B. ietc, as in the Summons) : And whereas (/) the said Justice of the Peace then issued {my) Summons unto the said A. B., commanding him, in Her Majesty s name, to be and appear on , at o'clock in the (fore) noon, at . before {me) or such Justice or Justices of the Peace as might then be there, to answer unto the said information {or complaint), and to be further dealt with according to law ; And whereas the said A. B. hath neglected to be and appear at the time and place so 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, forthwith to apprehend the said A. B. and to bring him before {me) or some one or more of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case may be), to answer to the said information {or complaint) ; and to be further dealt with according to law. Given under my Hand and Seal, this day of , in the year of our Lord at , in the District {or County, United Counties, or as the case may be), aforesaid. J. S. [L.S.J (C) Sec s. 6. WARRANT IN THE FIRST INSTANCE. s.] Canada, Province of District {or County, I United Counties, or I as the case may be), | of To all or any of the Constables or other Peace Officers in the said District {or County, United Counties, or as the case may be), of 148 SUMMARY CONVICTIONS. Whereas information hath this day been laid before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), of for that A. B. (here state shortly the matter of information) ; and oath being now made before me substantiating the matter of such information : These are there- fore to command you, in Her Majesty's name, forthwith to apprehend the said A. B. and to bring him before (me) or some one or more of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), to answer to the said information, and to be further dealt with accordmg to law. Given under my Hand and Seal, this the year of our Lord , at etc., as the case may be), aforesaid. day of , in in the District (County, J. S. [L. S.] (D) See ss. 12, 22, 34, 46. WARRANT OF COMMITTAL FOR SAFE CUSTODY DURING AN ADJOURNMENT OF THE HEARING. Canada, \ Province of District (or County, I United Counties, or '~ as the case may be), of To all or any of the Constables or Peace Officers in the District (or County, United Counties, or as the case may be), of , and to the Keeper of the Common Gaol (or Lock-up House) at : Whereas on last past, information was laid (or complaint made) before , (one of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), of , for that (etc., as in the Summons) ; And whereas the hearing of the same is adjourned to the of (instant), at o'clock in the (fore) noon, at , and it is necessary that the said A. B. should in the meantime be kept in safe custody : 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 House) at , and there deliver him into the custody of the Keeper thereof, together with this Precept ; And I hereby require you, the said Keeper, to receive the said A. B. into your custody in thai said Common Gaol (or Lock-up 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 and SCHEDULES. 149 place to which the said hearing is so adjourned as aforesaid, before such Justices of the Peace for the said District (or County, United Counties, or fls the case may be), as may then be there, to answer further to the said information [or complaint), and to be further dealt with according to law. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District {or County, ttc, as the case may be), aforesaid. J. S. [L. s.] (E) See ss. 12, 22, 34, 46. RECOGNIZANCE FOR THE APPEARANCE OF DANT WHEN THE CASE IS ADJOURNED, ONCE PROCEEDED WITH. THE DEFEN- OR NOT AT Canada, Province of District {or County, United Counties, or I as the case may be), I of / Be it remembered, That on A. B. of , {labourer), and L. M. of , (grocer), and O. P. of , (yeoman), personally came and appeared before the undersigned, (one) of Her Majes- ty's Justices of the Peace for the District (or County, United Counties, or as the case may be) of , and severally acknowledged themselves to owe to our Sovereign Lady the Queen the several sums following, that is to say : the said A. B. the sum of , and the said L. M. and O. P. the sum of , each, of good and lawful current 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 Queen, Her Heirs and Successors, if he the said A. B. shall fail in the condition en- dorsed (or hereunder written). Taken and acknowledged the day and year first above mentioned at before me J. S. [I., s.] The condition of the within (or the above) written Recognizance is such ithat if the said A. B. shall personally appear on the day of , (insiant), at o'clock in the (fore) noon, at , before me or such Justices of the Peace for the said Dis- trict (or County, United Counties, or as the case may be) as may then be there, to answer further to the information (or complaint) of C. D. exhibited against the said A. B. and to be further dealt with according to law, then the said Recognizance to be void, or else to stand in fu!l force and virtue. 160 SUMMARY CONVICTIONS. NOTICE OF SUCH RECOGNIZANCE TO BE GIVEN TO THE DEFENDANT AND HIS SURETIES. Take notice that you, A. B., are bound in the sum of , and you L. M. and O. P., in the sum of , each, that you, A. B., appear pevsonally on at o'clock in the {fore) noon at , before me or such Justices of the Peace for the District {or County, United Counties, or as the case may be) of as shall then be there, to answer further to a certain information (or complaint) of C. D., the further hearing of which was adjourned to the said time and place, and unless you appear accordingly, the Recognizance entered into by you, A. B., and by L. M. and O. P. as your sureties, will forthwith be levied on you and them. Dated this day of , one thousand eight hundred and J. S. [L. S.] (F) Sec ss. 13, 23, 35, 49, 61. CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON THE DEFENDANT'S RECOGNIZANCE, I hereby certify that the said A. B. hath not appeared at the time and place in the said condition mentioned, but therein hath made default, by reason whereof the within written Recognizance is forfeited. J. S. [L. S.] (G i) See s. 16. SUMMONS TO A WITNESS. Canada, ,j Province of District {or County, United Counties, or as the case may be,) of To E. F. of , in the said District {or County, United Counties, or as the case may be) of Whereas information was laid {or complaint was made) before (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be) of , for that (etc., as in the Summons,) and it hath been made to appear to me upon (oath) that you are likely to give material evidence on behalf of the Prose- cutor (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 Justice or Justices of the SCHEDULES. 161 Peace for the said District {or County, United Counties, or as the case may be) as may then be there, to testify vshat 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 District {or County,, or as the case may be) aforesaid. J. S. [L. S.] s.] s.] (G 2) See s. 17. WARRANT WHERE A WITNESS HAS NOT OBEYED A SUM- MONS. Canada, Province of District {or County I United Counties, or 1 as the case may be), j of To all or any of the Constables and other Peace Officers in the said District {or County, United Counties, or as the case may be), of Whereas information was laid {or complaint was made) before (one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case may be), of for that {etc., as in the Summons), and it having been made to appear to {me) upon oath, that E. F., of , in the said District {or County, United Counties, or as the case may be), {labourer), was likely to give material evidence on behalf of the (Prosecutor, or as the case may be), (I) did duly issue {my) Summons to the said E. F., requiring 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 District {or County, United Counties, or as the 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 informa- tion {or complaint) : And whereas proof hath this day been made before 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 has 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 o'clock in the noon, at before me or such Justice or Justices of the Peace for the District {or County, United Counties, or as the case may be), as may then be there to testify what he shall know concerning the said information {or complaint). Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District (or County, , or as the cast may be), aforesaid. J. S. [L. S.] 152 SUMMARY CONVICTIONS. (G 3) See s. 18. WARRANT FOR A WITNESS IN THE FIRST INSTANCE. Canada, Province of District {or County United Counties, or as the case may be), of To all or any of the Constables, or other Peace Officers in the said District (or County, United Counties, or as the case may be), of Whereas information was laid (or complaint was made) before the under- signed (one) of Her Majesty's Justices of the Peace in and for the said Dis- trict (or County, United Counties, or as the case may be), of for that (etc., as in the SummoHs), and it being made to appear before me upon oath, that E. F., of , (labourer), is likely to give material evidence on behalf of the (Prosecutor, or as the case may be), in this matter, and it is probable that the said E. F. will not attend to give evidence without being compelled so to do : These are therefore to command you to bring and have the said E. F., on , at o'clock in the f/on') noon, at , before me or such other Justice or Justices of the Peace, for the District (or County, United Counties, or as the case may be), as may then be there, to testify what he 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 District (or County, or as the case may be), aforesaid. J. S. [L. S.] (G 4) See s. ig. COMMITMENT OF A WITNESS FOR REFUSING TO BE SWORN OR GIVE EVIDENCE. Canada, Province District (or County, United Counties, or as the case may be), of To all or any of the Constables or other Peace Officers in the said District (or County, United Counties, or as the case may be), of , and to the Keeper of the Common Gaol of the said District (or County, United Counties, or as the case may be), at : Whereas information was laid (or complaint was made) before (me) (one) of Her Majesty's Justices of the Peace, in and for the sa'd District (or County, United Counties, or as the case may be), of for that (etc., as in the Summons), and one E. F., now appearing before me such Justice SCHEDULES. 163 as aforesaid, on , at , and being required by 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 witness in the matter of the said information or complaint), doth refuse to answer a certain question con- cerning the premises which is now here put to him, and more particu- larly the following question {here insert the exact words of the question), without ofiering 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 convey 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 said 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 District {or County, or as the case may be), aforesaid. J.S. [L.S.] District , and County, (H) See s. 33. WARRANT TO REMAND A DEFENDANT WHEN APPREHENDED. Canada, Province of District {or County, United Counties, or as the case may be), of To all or any of the Constables, or other Peace Officers in the said District {or County, United Counties, or as the case may be) of , and to the Keeper of the Common Gaol {or Lock-up House) at Whereas information was laid {or complaint was made) before (one) of Her Majesty's Justices of the Peace in and for the District (or County, United Counties, or as the case may be) of , for that (etc., as in the summons or warrant) ; And whereas the said A. B. hath been appre- hended under and by virtue of a Warrant, upon such information (or com- plaint) 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 House) 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 receive the said A. B. into your custody in the said Common Gaol {or Lock-up House,) and there safely keep him until next, the day of (instant), when you 11 S.C.L. 154 SUMMARY CONVICTIONS. are hereby commanded to 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 District (or County, United Counties, ur as the case may be) as may then be there, to answer to the said information {or complaint), and to be further dealt with according to law. Given under my Hand and Seal, this day of , in the year of cur Lord, , at , in the district {or County, as the case may be) aforesaid. J. S. [I-. S.J (I i) See ss. 42, 50, CONVICTION FOR A PENALTV TO HE LEVIED BY DISTRESS, AND IN DEFAULT OF SUFFICIENT DISTRESS, BY IMPRISONMENT. Canada, Province of District {or County United Counties, or /" as the case may be,) of Be it remembered. That on the day of , in the year of our Lord, , at , in the said District {or (bounty, United Counties, or as the case may be), A. B. is c^jnvicted before the undersij^ned, {one) of Her Majesty's Justices of the Peace for the said District {or County, United Counties, or as the case may he), for that the said A. B., {etc., stating the offence, anil the time and place when and where committed,) and I adjudge the said A. B, for his said offence to forfeit and pay the sum of {stating the penalty, and also the compensation, if any,) to be paid and applied 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 or, on or before the of next,) * I order that the same be levied by distress and sale of the goods and chattels of the said A. B., and in default of sufficient distress, • I adjudge the said A. B. to be imprisoned in the Common (J^nA of the said District {or County, United Counties, or as the case may be.) at , in the said District {or County) of (there to be kept at hard labour, if such be the sentence) tor the space of unless the said several sums and all costs and charges of the said distress (and of the oominitment and conveying of the said A. B. to the said Gaol) be sooner paid. Given under my Hand and Seal, the day and year first above mentioned, at in the District {or County, United Counties, or as the case may be) aforesaid. J. S. [L. s.] SCIIKDULES. 165 • Or when the issuing of a Distress Warrant would be ruinous to the Defendant or his family, vr it appears he has no goods whereon to levy a distress, then instead of the ivurds het:veen the asterisks * * say, " inasmuch as it hath now been made to aiijitar to mo that the issuinK of a Warrant of Distress in this behalf would be rui:ious to the said A, B. or his family," {or, "that the said A. B, hath no goods or chattels whereon to levy the said sums by distress,") I adjudge, etc., {as above, to the end.) (I 2) See ss. 42, 50. CONVICTION FOR A PENALTY, AND IN DEFAULT OF PAY- MENT, IMPRISONMENT. Canada, Province of District (or County, United Counties, or as the case may be), of ' . Be it remembered, That on the day of , jn the year of our Lord , at , in the said District (vr County, United Counties, or as the case may be,) A. B., is convicted before the undersigned, (one) of Her Majesty's Justices of the Peace for the said District (or County, United Counties, or as the case may be), for that he the said A. B., (etc., stating the offence, and the time and place ivhen and ivhere it was committed) and I adjudge the said A. B. for his said offence to forfeit and pay the sum of (stating the penalty and the compen- sation, if any,) to be paid and applied according to law ; and also to pay to the said C. D. the sum of fur his costs in this behalf; and if the said several sums be not paid forthwith (ur, on or before next,) I adjudge the said A. B. to be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may be.) at in the said District (or County) of (and there to be kept at hard labour) for the space of , unless the said sums and the costs and charges 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 mentions'., at in the District (tr County, United Counties, or as the case may be), aforesaid. J. S. [L. S.l 166 SUMMARY CONVICTIONS. (I 3) See ss. 42, 50. CONVICTION WHEN THE PUNISHMENT IS BY IMPRISON MENT. ETC. Canada, Province of District (or County, United Counties, or as the case may be), of Be it remembered, That on the day of , in the year of our Lord , in the said District {or County, 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 and for the said District (or County, United Counties, or as the case may be,) for that he the said A. B. (etc., stating the offence and the time and place ivhen and where it was com- mitted) ; and I adjudge the said A. B. for his said offence to be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may he), at , in the County of , (and there to be kept at hard labour) for the space of ; and I also adjudge the said A. B. to pay to the said C. 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 dis' tress and sale of the goods and chattels of the said A. B. ; and in default of uflicient disti y in that behalf, * I adjudge the said A. B. to be imprisoned »n the said Common Gaol, (and kept there at hard labour), for the space of , to commence at and from the term 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 District (or Co'iniy, ' d Counties, or as the case may be) aforesaid. J. S. [L. S.] * Or, when the issuing of a distress warrant would be minous to the Defendant and his family, or it appears that he has no goods 7. , rcon to levy a distress, then, instead of the words between the asterisks * * say, "inasmuch as it hath now been made to appear to me that the issuing of a Warrant of distress in this behalf would be ruinous to the said A. B. and his family," (or " that the said A. B. hath no goods or chattels whereon ''^ levy the said sum for costs by distress ") I adjudge, etc. 'RISON SCHEDULES. (K i) See as. 42, 51. 167 ORDER FOR PAYMKNT OF MONEY TO HE LEVIED BY DIS- TRESS. AND IN DEFAULT OF DISTRESS, IMPRISONMENT. Canada, Province of District (or County, United Counties, or as the case may be), of . / . in the :y, United Jersigned, )istrict {or >aid A, B. was com- Tiprisoned ities, or as (and there 10 adjudge r his costs , (or on or ied by dis- default of mprisoned 2 space of risonment mentioned as the case [L. S.] 7US to the ton to levy inasmuch Varrant of s family," y the said Be it remembered, That on complaint was made before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United (bounties, or as the case may be) of for that (stating the facts entitling the Complainant to the order, with the time and place when and where they occurred,) and now at this day, to wit, on , at , the parties aforesaid appear before me the said Justice (or the said C. D. appears before me the said Justice, but, the said A. B., ahhough duly called, doth not appear by himself, his Counsel or Attorney, and it is now satisfactorily proved to me on oath that the said A. B. has been duly served with the Summons in this behalf, which required him to be and appear here on this day before me or such Justice or Justices of the Peace for the said District (or County United Counties, or as the case may be) as should now be here, to answer the said complaint, and to be further dealt with according to law) ; and now having heard the matter of the said complaint, I do adjudge the said A. B. to pay to the said C. D. the sum of forthwith, (or, on or before next, or as the Act or Law may require), 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 (or, on or before next) then * I hereby order that the same be levied by distress, and sale of the goods and chattels of the said A. B.) and in default of sufficient distress in that behalf,* I adjudge the said A. B. to be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may be) at in the said District (or County) of , (and there kept to hard labour) for the space of , unless the said several sums 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 shall be sooner paid. Given under my Hand and Seal, this day of in the year of our Lord , at in the District (or County, or as the case may be) aforesaid. J. S. [L. S.] • Or, when the issuing of a distress Warrant would be ruinous to the Defendant or his family , or it appears he has no goods whereon to levy a distress, then, instead of the words between the asterisks * * say, "inasmuch . - -n,.J!B'.!'l IH'H WMPI 158 SUMMARY CONVICTIONS. as it hath now been made to appear to me that the issuing of a Warrant of distress in this behalf would be ruinous to the said A. B. and his family," (or, 'that the said A. U. hath no goods or chattels whereon to levy the said sums by distress.") (K 2) See ss. 42, 51. ORDER FOR PAYMENT OF MONEY, AND IN DEFAULT OF PAYMENT, IMPRISONMENT. Canada, \ Province of District (or County, [ United Counties, or'.' as tin: case may be), I of ' Be it remembered. That on complaint was made before the undersigned, {one) of Her l.Iajesty's Justices of the Peace in and for the said District [or County, United Counties, or as the case mav be), of , for that {stating the facts cntitlhig the Complainant to the order, with the time and place when and where they occurred), and now on this day, to wit, on , at , the parties aforesaid appear before me the said Justice, (or the said C. D. appears before me the said Justice, but the said A. B. although duly called, doth not appear by himself, his Counsel or Attorney, and it is now satisfactorily proved to me upon oath that the said A. B. has been duly served with the Summons in this behalf, which required him to be and appear here this day before me, or such Justice or Justices ot tiie I'eace for the said District [or County, United Counties, or ■■..■ he case may be), as should now be here, to answer to the said complaiui, and to be further dealt with according to law), and now h.'.ving heard the matter of the said complaint, I do adjudge the said A. B. (to pay to the said C. D. the sum of forthwith, {or, on or before next, or as the Act or Law may require), 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, [or, on or before next), then I adjudge the said A. B. to be imprisoned in the Common Gaol of the said District {or County, United Counties, or as the ease may be), at , in the said Distiict {or County) of , (there to be kept at hard labour if the Act or Lajv authorize this) for the space of unless the j^iJ several sums (and costs and charges of com- mitment and conveyivig the said A. B. to the said Common Gaol) shall be sooner paid. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District {or County, United Counties, or as the case may be) aforesaid. J. S. [L. S.] SCHEDULES. 150 arrant of family." levy the JLT OF before the d for the 'V be), of lilt to the d now on aforesaid )re me the ippear by ved to me nmons in jcfore me, County, to answer law), and the said {or, on or Iso to pay ihalf; and mon Gaol (i^ be), at here to be space of es of com- ) shall be , m ir County, [L. s.] (K 3) See ss. 42, 51. ORDER FOR ANY OTHER MATTER WHERE THE DISOBEY- ING OF IT IS PUNISHABLE WITH IMPRISONMENT. Canada, Province of District {or County United Counties, or as the case may be), of Be it remembored, That on complaint was made before the undersigned, (one) of Her Majesty's Justices of t' ■ Peace in and for the said District (or County, United Counties, (o; > : the case tuny be), of , for that {stating the facts entitling the Complainant to the order, with the time and place where and when they occurred), and now on this day, to wit, on , at , the parties aforesaid appear before me the said Justice [or the said C. D. appears before me the said Justice, but the said A. B., although duly called, doth not appear by himself, his Counsel or Attorney, and it is now satisfactorily proved to me upon oath that the said A. B. has been duly served with the Summons in this behalf, which required him to be and appear here this day before me, or such Justice or Justices of the Peace for the said District {or County, United Counties, or as the case may be), as should now be here, to answer to the said complaint, and to be further dealt with according to law,) and now having heard the matter of the said complaint, I do therefore adjudge the said A. B. to {here state the matter required to be done), and if upr- a copy of the Minute of this Order being served upon the said A. B., either personally or by leaving the same for him at his last or most usual place of abode, he shall neglect or refuse to obey the same, in that case I adjudge the said A. B. for such his disobedience to be imprisoned in the Common Gaol of the said District {or County, United Counties, or as the case may be), at , in the said County of , (there to be kept at hard labour, if the Statute authorize this), for the space of unless the said order be sooner obeyed, and I do also adjudge the said A. B. to pay to the said C. 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,) I order the same to be levied by distress and sale of goods and chattels of the said A. B., and in default of suflicient distress in that behalf, I adjudge the said A. B. to be imprisoned in the said Common Gaol (there to be kept at hard labour) for the space of to com- mence at and from the termination of his imprisonment aforesaid, unless the said sum for costs shall be sooner paid. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District {or County, United Counties, or as the case may be), aforesaid. J. S. [L. S] 160 8UMM1BY CONVICTIONS. (L) See s. 43. ORDER OF DISMISSAL OF AN INFORMATION OR COMPLAINT. Canada, \ Province of , District (or County, ( United Counties, or C as the case may be) of .) Be it remsmbered, That on information was laid (or complaint was made) before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), of , for that (etc., as in the Summons 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. although duly called doth not appear,*) whereupon the matter of the said information (or complaint) being by me duly considered (it manifestly appears to me that the said information (or complaint) is not proved), I do therefore dismiss the same, and do adjudge that the said C. D. do pay to the said A. B. the sum of for his costs incurred by him in his defence in this behalf; and if the said sum for costs be not paid forthwith, (or, on or before ), I order that the same be levied by distress and sale of the goods and chattels of the said C. D., and in default of sufficient distress in that behalf, I adjudge the said C. D. to be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may be) at . in the said County of , (and there to be kept at hard labour) for the space of , un'ess the said sum for costs and all costs and charges of the said distress (and of the commitment of the said C. D. to the said Common Gaol), shall be sooner paid. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District (or (bounty, United Counties, or as the case may be) aforesaid. * If the Informant (or Complainant) do not appear, these words may be omitted. (M) See s. 43. CERTIFICATE OF DISMISSAL. I hereby certify that an information (or complaint) preferred by C. D. against A. B. for that (or as in the Summons,) was this day considered by me, one of Her Majesty's Justices of the Peace in and for the District (or County, United Counties, or as the case may be) of , and was by (me) dismissed (zoith costs). Dated this day of , one thousand eight hundred and J. S. [L.S.] SCHEDULES. (N i) See s. 57. 161 WARRANT OF DISTRESS UPON A CONVICTION FOR A PENALTY. Canada, Province of District {or County, United Counties, or . ■ the case may be), To all or any of the Constables, or other Peace Officers in the said District (or County, United Counties, or as the case may be) of Whereas A. B., late of , (labourer), was on this day (or on last past) duly convicted before (one) of Her Majesty's Justices of the Peace, in and for the said District (or County. United Counties, or as the case may be), of , for that (stating the offence as in the conviction), and it was thereby adjudged that the said A. B. should for such his offence lorfeit and pay. (etc., as in the conviction), and should also pay to the said C. D. the sum of for his costs in that behalf ; and it was thereby ordered that if the said several sums should not be paid (forthwith) the same should be levied by distress and sale of the goods and chattels of the said A. B. ; and it was thereby also adjudged that the said A. li., in default of sufficient distress, should be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may be,) at , in the said County of , [and there to be kept at hard labour) for the space of , unless the said several sums and all costs and charges of the said distress, and of the commitment and conveying of the said A. B. to the said Cosnuson Gaol should be sooner paid; *And whereas the said A. B., being s> convicted as aforesaid, and being (now) required v^ pay the said sums of and hath not paid the same or any part thereof, but therein hath made default; These are therefore to command you, in Her Majesty s name, forthwith to make distress of the goods amd chattels of the said A. B. ; and if within days next after the making of such distress, the said sums, together with the reasonable charges rf taking and keeping the distress, shall not be paid, then you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale unto me (the con- victing Justice or one of the convicting Justices} that I may pay and apply the same as by law is directed, and may render the overplus, if any, on demand, to the said A. B. ; and if no such distre^ can be found, then, that you certify the same unto me, to the end that such further proceedings may be had thereon as to law doth appertain. Given under my Hand and Seal, this the year of our Lord , at or as the case may be), aforesaid. day of , in in the District (or County, J. S. [L. S.] 162 SUMMARY CONVICTIONS. (N 2) See B. 57. WARRANT OF DISTRESS UPON AN ORDER FOR THE PAY- MENT OF MONEY. Canada, Province of , District (or County, United Counties, or as the case may be), of To all or any of the Constables, or other Peace Officers, in the said District (or County, United Counties, or as the case may be), of : Whereas on last past, a complaint was made before (one) of Her Majesty's Justices of the Peace, in and for the said District (or County, United Counties, or as the case may be), for that (etc., as in the order), and afterwards, to wit, on , at , the said parties appeared before {as in the order), and thereupon the matter of the said complaint having been considered, the said A. B. was adjudged (to pay to the said C. D. the sum of on or before then next), and also to pay to the said C. D. the sum of for his costs in that behalf; and it was ordered that if the said several sums should not be paid on or 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 behalf, the said A. B. should be imprisoned in the Common Gaol of the said District (or County, or United Counties, or as the case may be), at , in the said County of (and there kept at hard labour) for the space of , unless the said several sums and all costs and charges of the distress (and of the commitment and conveying of the said A. B. to the said Common Gaol) should be sooner paid ; * And whereas the time in and by the said order appointed for the payment of the said several sums of and hath elapsed, but the said A. B. hath not paid the same, or any part thereof, but herein hath made default; These are therefore to command you, in Her Majesty's name, forthwith to make dis- tress of the goods and chattels of the said A. B. ; and if within the space of days after the making of such distress, the said last mentioned sums, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell th'j said goods and chattels so by you distrained, and do pay the money arising from such sale unto me, (or some other of the convicting Justices, as the case may be), that I (or he) may pay and apply the same as by law directed, and render the overplus, if any, on demand to the said A. B. ; and if no such distress can be found, then, that you certify the same unto me, 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 year of our Lord , at , in the District (or County, or as the case may be), aforesaid, J. S. [L. S.l SCHEDULES. 163 (N 3) See s. 58. ENDORSEMENT IN BACKING A WARRANT OF DISTRESS. Canada, \ 1 rovince of , District {or County, [ United Counties, or as the case may be), of Whereas proof upon oath hath this day been made before me, one of Her Majesty's Justices of the Peace in and for the said District, {or County, United Counties, or as the case may be) that the name of J. S. to the within Warrant subscribed, is of the handwriting of the Justice of the Peace within mentioned, I do therefore authorize U. T. who bringeth me this WarraTit, and all other persons to whom this Warrant was originally directed, or by whom the same may be lawfully executed, and also all Constables and other Peace Officers in the said District {or Count), United Counties, or as the case may be), of , to e.xecute the same within the said District {or County, United Counties, o, as the case may be). biven under my Hand, this hundred and day of , one thousand eight O. K. (N 4) Sec s. 62. CONSTABLE'S RETURN TO A WARRANT OF DISTRESS. I, W. T., Constable of . in the District {or County, United Counties, or as the case may be) of , hereby certify to J. S., Esquire, one of Her Majesty's Justices of the Peace for the District {or County, United Counties, or as the case may be) that by virtue of this Warrant, I have made diligent search for the goods and chattels of the within men- tioned A. B., and that I can find no sufficient goods or chattels of the said A. B. whereon to levy the sums within mentioned. Witness my Hand, this hundred and day of , one thousand eight J. S. [[.. s.] (N 5) Sec s. 62. W^\RRANT OF COMMITMENT FOR WANT OF DISTRESS. Canada, Province of District {or County, , United Counties, or Y as the case may be), oi ,) To all or any of the Constables and other Peace Officers in the District, {or County, United Counties, or as the case may be), of , and to the Keeper of the Common Gaol of the said District {or County, United Counties, or as the case may be), of , at , in the said District {or County) of ; 164 SUMMARY CONVICTIONS. Whereas (etc., as in either of the foregoing distress Warrants, N. i, 2, to the asterisks, * and then thus) : And whereas afterwards on the day of , in the year aforesaid, I, the said Justice, issue! a Warrant to all or any of the Constables or other Peace Officers of the District [or County, United Counties, or as the case may be), of , commanding them, or any of them, to levy the said sums of , and by distress and sale of the goods and chattels of the said A. B. ; And whereas it appears to me, as well by the return to the said Warrant of distress, by the Constable who had the execution of the same, as otherwise, that the said Constable hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the sums above mentioned could be found : These are therefore to command you, the said Constables or Peace Officers, or any one 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 said Keeper, together 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, there to imprison him (and keep him at hard labour) for the space of , unless the said several sums, and all the costs and charges of the said distress, (and of the commitment and conveying 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 District (or County, or as the cast may be) aforesaid. J. S. [L. S.] (O i) Sec s. 59. WARRANT OF COMMITMENT UPON A CONVICTION FOR A PENALTY IN THE FIRST INSTANCE. Canada, \ Province of District (or County, United Counties, or as the case may be), of To all or any of the Constables and other Peace Officers in the said District (or County, Uni'ed Counties, or as the case may be), of , and to the Keeper of the Common Gaol of the said District (or County, United Counties, or as the case may be) of , at , in the said District (or County of Whereas A. B., late of , (labourer), was on this day convicied before the undersigned, (one) of Her Majesty's Justices of the Peace, in and for the said District (or County, United Counties, or as the case may be), for SCHEDULES. 165 that (Stating the offence as in the conviction), and it was thereby adjudged that the said A. B. for his offence should forfeit and pay the sum cf {etc., as in the conviction), 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 (forthwith) the said A. B. should be imprisoned in the Common Gaol of the said Dis- trict {or County, United Counties, or as the case may be), at , in the said District (or County) of , (and there kept at hard labour) for the space of , unless the said several sums and the costs and charges 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 appointed 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 command you, the said Constables or Peace Officers, or any one of you. to tuke the said A. B., and him safely to convey to the Common (iaol at aforesaid, and there to deliver him to the said Keeper thereof, together with this Precept; and I do hereby command you, the said Keeper of the said 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 several sums (and costs and charges of carrying him to the said Com- mon Gaol, amounting to the further sum of ), shall be sooner paid unto you, the said Keeper ; and for your so doing, this shall be your sufficient Warrant. Given under my Hand and Seal, this the year of our Lord , at or as the case may be), aforesaid. day of , in , in the District (or County, J. S. [L. s.] (O 2) Sec s. 59. WARRANT OF COMMITMENT ON AN ORDER IN THE FIRST INSTANCE. Canada, Province of District {or County United Counties, or ' as the case may be) of icied and '). for To all or any of the Constables and other Peace Officers in the said Dis- trict (or County, United Counties, or as the case may be), of and to the Keeper of the Common Gaol of the District (or County, United Counties, or as the case may be), of , at , in the said District {or County) of Whereas on last past, complaint was made befoic the under- signed, (one) of Her Majesty's Justices of the Peace in and for the said District (or Coun'y, United Counties, or as the case may be), of ^'I^ 166 SUMMARY CONVICTIONS. or that (etc., as in the order), and afterwards, to wit, on the day of , at , the parties appeared before me, the said Justice {or as it may be in the order), and thereupon having considered the matter of the complaint, I adjudged the said A. B. to pay the said C. D. the sum of on or before the day of then next, and also to pay to the said C. D. the sum of for his costs in that behalf; and I also thereby adjudged that if the said several sums should not be paid on or before the day of then next, the said A. B. should be imprisoned in the Common Gaol of the District (or County. United Counties, or as thr case may be), of at , in the said County of , (and there be kept at hard labour) for the space of , unless the said several sums (and the costs and charges of conveying the said A.B. to the said Common Gaol, (Z5 the case may be), should be sooner paid ; And whereas the time in and by the said order appointed for the payment of the said several sums of money 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 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 said 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 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 several sums (and the costs and charges of conveying him to the said Common Gaol, amounting to the further sum of ), shall be sooner paid unto you, the said Keeper; and for your 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 District (or County, or as the case may be), aforesaid. J. S. [L. S.] (Q i) See s. 64. WARRANT OF DISTRESS FOR COSTS UPON AN ORDER FOR DISMISSAL OF AN INFORMATION OR COMPLAINT. Canada, ^ Province District (or County, United Counties, or as the case may be), of To all or any of the Constables or other Peace Officers, in the said District (or County, United Counties, or as the case may be), of Whereas on last past, information was laid (or complaint was made) before (one) of Her Majesty's Justices of the Peace m and for the said District (or County, United Counties, or as the case vury be) of for that (etc., as in the order of dismissal), and afterwards, to SCHEDULES. 167 day- wit, on , at , both parties appearing before in order that (/) should hear and determine the same, and the several proofs adduced to (nic) in that behalf being by (»«?) duly heard and considered, and it manifestly appearing to (nic) that the said information {or complaint was not proved, (/) 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 (forthwith) the same should be levied on the goods and chattels of the said C. D., and (/) adjudged that in default oi sufficient distress in that behalf the said C. D. should be imprisoned in the Common Gaol of the said District (or County, United Counties, or as the case may be) of , at , in the said District or County of , (and there kept at hard labour) for the space of , unless the said s^im 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 Ccmr.ion Gaol should be sooner paid; * And whereas the said C. I), 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 hath made default ; These are there- fore to command you, in Her Majesty's name, forthwith to make distress of 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 men- tioned sum, together with the reasonable charges of taking and keeping the said distress, shall not be paid, then that yx u do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale to me (the Justice who made such order or dismissal as the case may be) that (/) may, pay and apply the same as by law directed, and may render the overplus (if any) en demand to the said C. D., and if no such distress can be found, then that you certify the same unto me, (or to any other Justice of the Peace for the same District (or County, United Counties, or as the case may be) to the er.d that such proceedings may be had therein as to law doth appertain. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District or County, or as the case may be) aforesaid. J. S. [L. S.J District lint was m and vnry be) ards, to (Q 2) See s. 64. WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN THE LAST CASE. Canada, Province of District (or County, United Counties, or f as the case may be), 1 of ) To all or any of the Constables or Peace Officers in the said District (or County, United Counties, or as the case be) of , and to the Keeper mma 168 SUMMARY CONVrcnONS. of the Common Gaol of the said District {or County. United Counties, or as the case may be) of , at , in the said District (or C'ounty) of Whereas (etc., as in the last form, to the asterisk, * and then thus :) And whereas afterwards on the day of , in the yc.ir aforesaid, I, the said Justice, issued a Warrant to all or any of the Constables or other Peace Officers of the said District (or County, United Counties, or as the rase may be) commanding them, or any one of them to levy the said sum <){ for costs, by distress and sale of the ^oods and chattels of the said C, D. ; And whereas it appears to me, as well by the return to the said Warrant of distress of the Constable (or I'eace Officer) charged with the execution of the same, as otherwise, that the said Constable hath made diligent search for the goods and chattels of the said C. D., but that no sufficient distress whereon to levy the sum above mentioned could be found : These are therefore to ctjmmand you, the said Constables and Peace Officers, or any one of you, to take the said C. D. and him safely convey to the Common Gaol of the said District {or County, United Counties, or as the case may be), at aforesaid, and there deliver him to the Keeper thereof, together with this Precept ; and I hereby com- mand you, the said Keeper of the said Common Gaol, to receive the said C, D. 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 the costs and charges of the said distress (and of the com- mitment and conveying of the said C. D. to the said Common Gaol amount- ing to the further sum of ), shall be sooner paid up unto you the said Keeper ; and for your 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 District {or County, or as the case may be) aforesaid. J. S. [L. S.l (R) See s. 75. CERTIFICATE OF CLERK OF THE PEACE THAT THE COSTS OF AN APPEAL ARE NOT PAID. Office of the Clerk of the Peace for the District {or County, United Coun- ties, or as the case may be), of TITLE OF THE APPEAL. I hereby certify. That at a Court of General or Quarter Sessions of the Peace, {or other Court discharging the functions of the Court of General or Quarter Sessions, as the case may be), holden at , in and for the said District {or County, United Counties, or as the case may be), on last past, an appeal by A. B. against a conviction {or order) of J. S., Esquire, one of Her Majesty's Justices ot the Peace in and for the said District {or County, United Counties, or as the case may be), came on SCHEDULES. 169 bounties, strict {or !.•) And resaid, I, or other or as the iaid sum i\s of the ) the said with the ith made ; that no could be bles and im safely ,-, United re deliver reby com- the said rison him ;s the said the com- 1 amount- to you the ,Varrant. , in r County, [L. S.l I COSTS ted Cuun- nis of the "iciicral or nd for the jy be), on {or order) md for the came on to be tried, and was there heard and determined, and the said Court of General or Quarter Sessions (or other Court, as the case may be), thereupon ordered that the said conviction (or order) should be confirmed (or quashed) and that the said {Appellant) should pay to the said {Respondent) the sum of for his costs incurred by him in the said appeal, and which sum was thtreby ordered to be paid to the Clerk of the Peace for the said District {or County, United Counties, or as the case may be), on or before the day of instant, to be by him handed over to the said {Respondent), and I further certify that the said sum L- costs has not, nor has any part thereof, been paid in obedience to the said order. Dated this and day of , one thousand eight hundred G. H., Clerk of the Peace. (S i) Sec s. 75. WARRANT OF DISTRESS FOR COSTS OF AN APPEAL AGAINST A CONVICTION OR ORDER. Canada, Province of , District (or County, United Counties, or as the case may be), of To all or any of the Constables or other Peace Officers in the said District (or County, United Counties, or as the case may be.) of Whereas (etc,, as in the Warants of distress, N. i, 2, ante, and to the oul "/the Statement of the Conviction or Order, and then thus : And whereas the said A. B. appealed to the Court of General Quarter Sessions of the Peace (or other Court discharging the functions of the Court of General or Quarter Sessions, as the case may be), for the said District (or County, United Couniies, 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 determined at the last General Quarter Sessions of the Peace (or other Court, as the case may be), for the said District (or County, United Coun. ties, or as the case may be,) holden at , on , and the said Court thereupon ordered that the said Conviction (or Order) should be confirmed (or quashed) and that the said (Appellant) should pay to the said (Respondent) the sum of for his costs incurred by him in the said appeal, which said sum was to be paid to the Clerk of the Peace for the said District (or County, United Counties, or as the case may 12 S.C.L. 170 SUMMARY CONVICTIOlfS. be), on or before the day of , one thousand eight hundred and , to be by him handed over to the said C. D.; and whereas the Clerk of the Peace of the said District (or County, United Counties, or as the case may be), hath, on the day of instant, duly cer- tified that the said sum for costs had not been paid ;• These are therefore to command you, in Her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B., 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, that then you do sell the said gocds and chattels so by you distrained, and do pay the money arising from such sale to the Clerk of the Peace for the said District, {or County, United Counties, or as the case may be), of , that he may pay and apply the same as by law directed ; and if no such distress can be found, then that you certify the same unto me, or any other Justice of the Peace for the same District {or County, United Counties, or as the case may be), to the end that such pro- ceedings may be had therein, as to law doth appertain. Given under my Hand and Seal, this the year of our Lord , at or as the case may be), aforesaid. day of , in , in the District (or County, O. K. [L. s.] (S 2) See s. 75. WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN THE LAST CASE. Canada, Province of , District ( or Conniy, Uniteil Counties, or as the case may be), of To all or any of the Constables, or other Peace Officers, in the said Dis- trict (or County, United Counties, or as the case may be) of and to the Keeper of the Common Gaol of the said District (or County, United Counties, or as the case may be), of , at , in the said County of Whereas (etc., as in the last form, to the asterisk,* and then thus): And whereas, afterwards, on the day of , in the year aforesaid, I, the undersigned, issued a Warrant to all or any of the Consta- bles and other Peace Officers in the said District (or County, United Coun- ties, or as the case may te), of , commanding them, or any of them, to levy the said sum of . for costs, by distress and sale of the goods and chattels of the said A. B. ; And whereas it appears to me, as well by the Return to the said Warrant of distress to the Constable SCHEDULES. 171 (or Peace Oificer) who was charged with the execution of the s.-ne, as otherwise, that the saiil Constable hath made diiiK'ent search for 'n goods and chattels of the said A. B., but that no suflicient distress whereon to levy the said sum above mentioned could be found; These are therefore io command you, the said Constables or I'eace officers, or any ons of you, to take the said A. B., and him safely to convey to the Common Gaol of the said District {or County, United Counties of , (;.■! tin case may be), 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 said Common Gaol, to receive the said A. B. into your custody in the said Common Gaol, there to iniprisun him {(tiul kee/^ liim at hard labour) for the space of , unless the same sum and all costs and charges of the said distress (and for 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 sulficient Warrant. Given under my Hand and Seal, this day of , in the year of our Loid , at , in the District (or County, United Counties, or as ilfi case may be), aforesaid. J. >:. i... S.J (T.) GENERAL FORM OF INFORMATION OR OF COMPLAINT ON OATH. Canada, Province of District (or County, United Counties, or ( as the case may be), I of } The information (or complaint of C. D., of the Township of in the said District (or County, United Counties, or as the case may be), of , (labourer). (If preferred by an Attorney or Ajrent, say : " D. E., his duly authorized 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 District (or County, United Counties, or as the ease may be), of , at N., in the said District (or County, as the ease mav be), of , this day of , in the year of our Lord, one thousand eight hundred and , who saith * that (he hath just cause to suspect and believe, and doth suspect and believe that) A. B. of the (Township) of , in the said District (oy County, as the case may be) of , within the space of , (the time within which the information (or complaint) mtist be laid,) last past, to wit, on the day of instant, at the (Township) of 172 SUMMARY CONVICTIONS. in the District (County, or as flic case may be), aforesaid, did {hers set out the offence, etc.,) contrary to the form of Statute in such case made and provided. C D. {or D. E.) Taken and sworn before me, the day and year and 'it the place abo\e mentioned. J. S. FORM Ol'^ ORDER OF DISMISSAL OF AX INFORM ATIOX OR COMPLAINT. Canada, Province of District {or County, 1 United Counties, or as the case may be) of Be it remembered, that on , information was laid {or com- plaint was made) before the undersigned, {oue) of Her Majesty's Justices of tlie Peace in and for the said District {or County, United Counties, or as the case may he), of , for that {etc., as in the Sumnons of the Defendant) and now at this day, to wit, on , at (,/ at any adjounimer.t insert here : " To which day the hearing of this case hath been duly adjourned, of which the s;.id C. D. had due notice," 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., although duly called, doth not appear) ; whereupon the matter of the said information or (complaint) being by me duly con- sidered, it manifestly appears to me that the said information or (complaint) is not proved, and {if the Informant or {Complainant) do not appear, these 7cords may be omitted) I do therefore dismiss the sanie, and do adjudge that the said C. D. do pay to the said A. B. the sum of for his costs iricurred by him in defence in his behalf ; and if the said sum for costs be not paid forthwith, {or, on or before ), I order that the same be levied by distress and sale of the goods and chattels of the said C. D. and in default of sufficient distress in that behalf, I adjudge the said C. D. to be imprisoned in the Common Gaol of the said District {or County, United Counties, or as the case may be), of at , in the saiil (County) of {and there kept at hard labour) for the space of , unless the said sum for costs, and all costs and charges of tlie said dis'ress ^and of the commitment and conveying of the said C. D. to the said Cxmimon Gaol) shall be sooner paid. Given under my Hand and Seal, this the year of our Lord , at County, or as the case may be), aforesaid. day of , in , in the District {ur J. S. [L. S.J SCHEDULES. 173 FORM OF CERTIFICATE OF DISMISSAL. I hereby certify that an information {or complaint) preferred by C. D. against A. B. for that (etc., as in the Summons) was this day considered by me, one of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), of , and was by me dismissed (with costs). Dated this day of , cue thousand J. S. GENERAL FORM OF NOTICE OF APPEAL AGAINST A CON- VICTION OR ORDER. To C. D., of etc., and (the names and additions of the parties to whom the notice is required to be given) : Tpike notice, that I, the undersigned A. B., of , do intend to ent'jr and prosecute an appeal at the next General Quarter Sessiv;ns of the Peace, (or other Court, as the ease may be), to be holden at , in and for the District (or County, Uniteu Counties, or as the ease may he), of , against a certain conviction (or order) bearing date on or about the day of instant, and made by (you) C. D., Esquire, fo)te) of Her Majesty's Justices of the Peace for the said District (.r County, United Counties, or as the case may be), of , whereby the said A. B. was convicted of having or was ordered to pay , (here state the offence, as in the conviction, information, or sumnions, or the amount adjudged to be paid, as in the order, as correctly as possible). Dated this and day of one thousand eight hundred A. B. Memorandum. — If this notice be given by several Defendants, or by an Attorney, it can easily be adapted. d C. D. L. S.j FORM OF RECOGNIZANCE TO TRY THE APPEAL, ETC Be it remembered, that on , A. B., of , (labourer), and L. M., 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 District (or County, United Counties, or as the ease may be), of , and severally acknowledged themselves to owe to our Sovereign Lady the Queen, the several sums following, 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 174 SUMMARY CONVICTIONS. levied of their several goods and chattels, lands and tenements respectively, to the use of our said Lady the Queen, Her Heirs and Successors, if he, the said A. B., s.iall fail in the condition endorsed. Taken and acknowledged the day and year first above mentioned at , belore me. J. S. The condition of the within written Recognizance is such, that if the said A. B. shall, at the {)icxt) General or Quarter Sessions of the Peace, {or oilier Court d'tscharghj said A. B., and him safely to convey to the (Common Gaol) at aforesaid, and there to deliver him to the Keepei thereof, together with this Precept ; And I do hereby command you the said Keeper of the (Common Gaol) to receive the said A. B. into your custody, in the said (Common Gaol), there to imprison him until the said next General or Quarter Sessions of the Peace (or the next term or sitting, the said Court discharging the functions of the Court of General oy Quarter Sessions, as the ease may be,) unless he in the meantime find suf'- cient sureties as well for his appearance at the said Sessions (or Court), 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 , at , in the District (or County, or as the case may be), aforesaid. J. S. [L. S.J SCHEDULES. 177 . in ADDITIONAL FORMS. The following forms are not in the Statute relating to Summary Convic- tions, but will be found useful in cases to which they apply : ADJUDICATION FOR A JOINT OFFENCE WHERE the PExN- ALTY IS SEVERED AMONG THE DEFENDANTS. Canada, \ Province of District {oy County, \^ United Counties, oi' ' as the case may be), 1 of j Be it remembered, (stating the conviction) ; and I adjudge the said A. B., E. F. and G. H. for their said offence to forfeit and pay the sum of to be paid and applied ajLording to law. and also to pay to the said C. B. {the Complainant) the sum of for his costs in this behalf in the following proportions, that is to say, the said A. B. for his said offence the sum of and the sum of for costs, and the said E. F. for his said offence the sum of and the sum of for costs, and the said G. H. for his said offence the sum of and the ^"'" °^ for costs ; and if the said several apportioned sums be not paid on or before next by the said A. B., E. V. and G. H. respectively, I adjud.-t: each of them, the said A. B., E. F. and G. H., who shall make default in that behalf severally to be imprisoned in tlie at ^ ^ , in ihe said {County) of , for the space of (or if imprisonment be different to each, say), I adjudge the said A. B.. E. F." and G. H. to be severally imprisoned in the at , in the said {County) of , for the following periods respectivelv, that is to say, the said A. D. for the space of , the said E. F. for the space of , and the said G. H. for the space of , unless the said several sums so adjudge.! to be paid by the person so making default, {add also a.: to costs and charge; of conveying to gaol, if Statute authorizes such costs), shall be sooner paid, but not so as that either of them shall be imprisoned or kept in prison for the default of the other or others of them. s.j ADJUDICATION UPON SEVERAL DEFENDANT"? FOR A SEVERAL OFFENCE IN ONE CONVICTION, WHERE THE PENALTY IS THE SAME TO EACH. Canada, \ Province of District (o;- County, I United Counties, o;' r as the case may be), of j Be it remembered, {stating the conviction) ; and I adjudge each of them, the said A. B., E. F. and G. H., for his said offence severally to forfeit and' pay the sum of , and each of them also to pay to C. D. the sum 178 SUMMARY CONTICTIONS. of for his costs in this behalf; and if the several sums so to be paid by each of them aforesaid, be not paid by the said A. B., E. F. and G. H. respectively on or before (etc.), I adjudge each of them, the said A. B., E. F. and G. H., who shall make default in that behalf, severally to be imprisoned in the Common Gaol at , in the (Co7iHty) of for the space of , unless the said several sums so adjudged to be paid by the person so making default, (and the costs and charges of con- veying such person to the Common Gaol), ((/ such costs arc a>:t}iorizcd by Statute otherrvisc omit them), shall be sooner paid, but not so as that either of them, the said A. B., E. F. and G. H., shall be imprisoned or kept in prison for the default of the other or others of them. Note. — When the penalty imposed on each defendant is different in amount the form may be varied accordingly. CONVICTION FOR A SECOND OR SUBSEQUENT OFFENCE. {Follow the Form as in cases of conviction, but add before the first adjudi- cation the following averment of the previous conviction) : And whereas it is now duly proved before me the said Justice that the said A. B. was hereto- fore, to wit, on the day of , in the year of our Lord , duly convicted before M. N., one of Her Majesty's Justices of the Peace in and for the (Cojinty) of , for that he did on the day of , at the (place), (state the offence, as in former conviction), and the said A. B. was thereupon adjudged for his last mentioned offence to {here state the adjudication): And I adjudge the said A. B. for his said (second or third) offence, of which he has been so con- victed this day as aforesaid to pay, etc. (proceed as in cases cf ordinary conviction). ADJUDICATION OF CONSECUTIVE IMPRISONMENT. Venue, ) {as in ordinary !- cases). ) Be it remembered, (as in ordinary cases). And I do adjudge the said .\. B. for his said offence to be imprisoned in (staie place of confinement,) for the space of , which I hereby award and order shall commence at the expiration of a certain other term of imprisonment to which the said A. B. has been previously duly adjudged and sentenced (by me) for another offence upon the conviction in th?t behalf — [if the party is in actual prison at present) add, and is now under- going punishment — (if it is a penalty adjudged) say, unless the said severa. sums shall be sooner paid. CHAPTER I Act, 32-33 Vic. Chapter XXXI. A N Act respecting the duties of Justices of the Peace -^-*- out of Sessions, in relation to Summary Convictions and Orders. This Act was subse.iuently extended to Manitoba, Prince Edward Island, District of Keewatin, except so much of the Act or of any Act amending it, as gives any appeal from any conviction or order adjudged or made under it ; To the North-west Territories with similar provisions. The several Acts under preamble to Act, relating to Indictable Offences, Ante— and extended to British Columbia, 37 Vic. c. 42. This Act refers to offences or acts over which the Parlia- ment of Canada has jurisdiction, and does not interfere with or relate to offences, which by Statutes of separate Provinces are made punishable by laws of the particular Province providing for procedure, punishment and trial, and the convictions and proceedings in regard to the latter are to be regulated by the Common Law, applicable to such, or by the particular Act under which proceedings are taken. INFOPMATION. Before whom may be laid— Form. See sections 1, 91, 94. By whom ma} be laid. See section 25. No objection to be allowed on account of defect or variance in Information, etc. See section 5. Time and place— statement of certain variances as to 180 SUMMARY CONVICTIONS. — between information and evidence, when not material. See section 21. Variances — if party misled by — Justice ma,y adjourn. Sen section 22. Complaint — when need not be on oath. See sections 24, 25. Complaint or Information to be for one matter only. See section 25. Limitation of time for making Complaint or laying In- formation. See sections 26, 79. Decision of the Case — Dismissal of Case. See section 41. Complaint — when need not be in writing. See section 20. Aiders and abettors of Offences punishable on Summary Conviction, how liable. See section 15. Description of property of Partners, Municipal Corpora- tions, etc., in any information or comi)laint, or proceedings therein. See section 14. An information is to be laid before the .Justice having jurisdiction in the Territorial Division — whirh means Dis- trict, County, Union of Counties, Township, Cit.y, Town, Parish or other Judicial Division. See section 94. The Magistrate must be careful to see that the Informa- tion is on a matter over which he has jurisdiction, other- wise ho will render himself liable, if a person is arrested on a warrant in a matter over which he has not jurisdic- tion. The information requires him to act, but he can only act in such matters over which he has jurisdiction to act, when information or complaint is made. The defendant, a Justice of the Peace, issued a warrant to arrest the female plaintiff on an information, stating that she did " unlawfully take and carry away from his (the informant's) protection, her daughter, S. W." The Justice professed to act under the Dominion Statute, 32-33 Vic. c. 20, s. 56. It was held ^ythe Supreme Court of New Brunswick, that as the defendant had no jurisdiction to issue a warrant on the information, he was liable to an action of trespass, and in such case, the Justice having no jurisdic- INFORMATION. 181 tion whatever over the matter, the question of reasonable and probable cause did notarise: Wldtticr <('• wife v. BrcH-Hta; 2 Vucr, 243. Except where some particular Act requires it, the information or complaint in the first instance does not require to be imder oath, see section 21 ; but l)y section 25, in cases where a u-arnnit is to be issued to apprehend the party, the information or complaint must be substan- tiated l)y oath or affirmation of the informant, or by some witness or witnesses on his behalf before the warrant issues. Information, by whom mrn/ be laid. L'rant The information may be laid or made by informant in person, or by his Counsel, or Attorney, or other person authorized in that behalf. It would appear however, that where the grievance com- plained of, is of a personal nature and in no way affecting the public, the information should be made by the indiv- idual affected, and where any particular Act requires the information or complaint to be made by a particular person, it must be so done. In cases of assault, under Act, 32-33 Vic. c. 20, s. 43, it is contemplated that the party aggrieved should make the complaint, w^hich however, may be pre- ferred by another on his behalf. In matters affecting the public policy or morals, a general power is invested in all persons to make information or complaint, as in cases of Indictable Offences. See remarks of L. Cockburn, in case of Cole v. Conlton, 2 E. & E. 694, from which it may be inferred that where the grievance complained of, is in respect to an individual, and the penalty is by way of individual redress, the information must be by the party aggrieved, but otherwise where the offence is one against public decency and propriety. An information by a person not authorized to make it cannot be acted upon, and is as if no information laid. 182 SUMMARY CONVICTIONS. Second Ojfence — IIoic I'nrtij imiat he Churgvd. When a person is sought to Ix- convicted, as for a second offence, as of selling liquor with-^iit license, when the pun- ishment is greater, he must be charged in the information with the commission of a second offence, and it must be also proved that at the time of the information, he had been previously convicted : Re(i. v. JuatircH o/ Queen's , 2 Pug. 485. The averment as to the second offence shoald also be stated in the conviction. The true meaning of Acts imposing a higher penalty for a second offence, is that the second offence should have been committed after a previous conviction, where a person wil- fully persists in violating the law. By section 72, a copy of conviction certified by the pro- per officer of the court or proved to be a true copy, shall be sufficient evidence to prove a conviction for the former offence, and the conviction shall be presumed to have been unappealed against, until the contrary is shewn. Statement of Time of C'ommittinrj Ojfence. In convictions the precise day need not be named, either in the information or evidence, but it is sufficiently certain if the fact be alleged to have happened heticeen such a day and such a day ; provided the last of the days specified, be within the limited time : Paley on Convictions, 85. It is also unnecessary to prove the offence to have been committed on the day alleged in the information, as this is a variance provided for by sections 5, 21, even if it was ever material. Appearance and Defence by Counsel or Attorney, By section 30, the party against whom a complaint ia made or information laid, shall be admitted to make his full defence, and answer thereto, and to have the witnesses ex- amined and cross-examined by Counsel or Attorney on his behalf. INFORMATION. 183 nig. Although in cases where the Justice or Justices are acting ministerially, as in the cases of Indictable Oflences, it may be essential for the purposes of Public Justice that the exam- ination should be private, yet where the Magistrate is acting judicially the practice of excluding an Attorney would be unreasonable, and where the statute expressly allows the party to defend by Counsel, the Magistrate is bound to permit this being done and the person may insist upon his right; although the defendant has the right to make his defence l)y Counsel, this does not give him the right to have a case adjourned in order to procure such assistance, although ho had no opportunity of i^rocuring it : lie;/, v. Bif/ijinSy 5 L. T. N. S. G05, Q. B. ; but where no great inconven- ience or prejudicial delay is occasioned, the Magistrate ought to give a party a reasonable time to procure Counsel if he desires it. Personal Apjiearancc. It was determined in Russel v. Wilson, 1 Ell. & Bl. 489, that where the legitimate object of the summons to appear^ did not render the personal appearance of party necessary, that he could appear by Counsel or Attorney. It may however, be questioned whether the personal appearance of the party, in cases where information ia made, can be dispensed with by an appearance by Counsel or Attorney, as the court in case above cited, make refer- ence to the words of the English Statute, 11-12 Vie. c. 43, — the words of which are ** but if both parties appear either personally, or by their respective Counsel or Attor- nies " the Justices are to hear and determine, etc., which words are omitted in Canada Statute. The Dominion Act enables both parties to have the assistance of Counsel or Attorney, but would seem not to affect the necessity of personal appearance of party, in cases where information is made. If, however, the object might be better answered if the defendant appeared by Counsel, as in some cases where questions of law are involved, it would seem sufficient that the party so appear- ed, and this would depend on the exigency of the summons. IMAGE EVALUATION TEST TARGET (MT-3) /. 1.0 [fi 28 I.I It 1^ IIIIIM 1.8 1.25 1.4 —II ^ 6" - ► v] <^ /i A >/ ;> 7 M vv# Hiotographic Sciences Corporation ^ iP Q ,v 9> ^^ \^^ V \\ .'-. u 6^ «? •s' 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 *<' ...W :\ \ or WW 184 SUMMARY CONVICTIONS. In cases where a complaint is made and an order is required to be made on proof of liability of party, the party, it would seem, may appear by Counsel or Attorney, as the form of order given in Schedule, is on default of appearance of party himself personally, or by Counsel or Attorney ; in cases where a summons has been issued, and sections 46-47, contemplate an appearance by Counsel or Attorney in authorizing proceedings ex parte, on failure of defendant appearing personall}', or by Counsel or Attor- ney, or in adjourning case iu default of such appearance. Waiver <. ^^bjcctions. If a party appears before Ji W' es and allows a charge, which they have jurisdiction ■ j h.;.>r, to be proceeded with without objecting, he waives kIip want of an information or a summons: li('ear that the defendant had been in any way mis- led or prejudiced by the alleged defect in the information, it was held by Supreme Court of N. B'k : licff. v. McMillan, 2 Pug. 110, that this defect was cured; (the provisions in respect of defect in N. B'k Act being similar to Canada Act.) Jurisdiction of Justices when no Information laid. Where the Magistrate has jurisdiction in the place and over the matter and person, it is not the information or complaint which gives him jurisdiction, but such, requh'es him to exercise the jurisdiction which he has, if the party is before him and informed or complained against, even instanter. In cases of search warrants the foundation of the Magistrate's jurisdiction to issue a warrant is the in- formation, and is necessary to justify him in acting, and must be founded on an information which discloses a charge of felony, or contains a statement of facts from which it may fairly be inferred that a felony has been committed. In a late case : The Queen v. Hughes, 4 L. R., Q. B., Div. 614, the consideration of the necessity of an information and the jurisdiction of Justices on apj^ear- ance of party in summary proceedings was very fully had : — H. a police constable, procured a warrant to be illegally issued without a written information or oath, for the arrest of S. upon a charge of " assaulting and obstruct- ing him (H.) in the discharge of his duty." Upon such warrant S. was arrested and brought before the Justices, and was, without objection, tried by them and convicted, H. was afterwards indicted for perjury, committed on the trial of S. and convicted. Held, that H. was rightly con- victed, notwithstanding there was neither written informa- tion nor oath to justify the ii^sue of the warrant, and that the Justices had jurisdiction to hear the charge, though the warrant upon which the accused was brought before them was illegal. This case exhausts the subject and very strongly lays down the law, that where the Magistrate has jurisdiction 18 fl.O.L. 186 SUMMARY CONVICTIONS. to hear the charge, although no information in writing or on oath made, and although contrary to the directions of the Sta- tute, -illegally issued a warrant upon which the party was brought up, and the Justices tried the charge, and took evidence in support of it, if they are acting within their jurisdiction, they have power to hear and determine. Tf, however, a Statute makes it a condition, j^recedent to taking any further step beyond the information, that the matter of the information should be deposed to by oath of the informer, or some other credible witness, and no such deposi- tion has been made, then the Magistrate, it may be, might not have power to proceed : See Ileg. v. Sutton, 5 Q. B., 493. Huddleston, J., in delivering judgment in case of Reg. v. Hughes, above cited, after reciting the several sections of the English Act3, which are similar in their provisions to the Canada Statute in this respect, says : " The object of all these provisions is to bring the party accused before the Justices to enforce his presence, and to enable them to deal with him in his absence, but when he is before them, the Justices are required and shall proceed to hear and determine." The same Judge says " the information on oath is not necessary to give the Justices jurisdiction to try, though it is necessary to give them jurisdiction to issue a warrant to apprehend; the jurisdiction to try, arises on the appearance of th3 party charged, the nature of the charges, and the charging of the defendant." If, however, a warrant is illegally issued, the Magistrate so issuing it would be liable in trespass, although the juris- diction to hear and determine would not be affected thereby ; and if the defendant objected to the progress of the pro- ceedings, because not knowing the charge and being pre- pared to meet it, the Justices should adjourn in order to afford him time to mako his defence, but it is clear that if a party is present at the time of proceedings and heard the charge, and witnesses, and has not asked for any fur- ther time to bring forward his defence, if he had any, his thus acting, precludes him from raising the objection to pre- INFORMATION. 187 juriB- sreby ; le pro- pre- der to that heard y fur- y, hia to pre- liminary proceedings : (see Eex v. Stone, 1 East. 639, 648) and that the want of an information in writing, or on oath, would not deprive the Justices from acting in cases where they have jurisdiction, the information not being necessary to give the Justices jurisdiction to try. " Principle and the authorities seem to shew, that objec- tions and defects in the form of procuring the appearance of a party charged, will be cured by appearance ; the prin- ciple is, that a party charged should have the opportunity of knowing the charge against him and be fully heard be- fore being condemned ; if he has the opportunity, the method by which he is brought before the Justice cannot take away the jurisdiction to hear and determine, when he is before them " : per Huddleston, B., in Reg. v. Iliujhes. In the same case, Denman J., applies the same principle to cases of Indictable Offences. He says : " It was con- tended that even under li-12 Vic. c. 42 " — (similar to Canada Act) " the right of the Magistrates to enquire, would not be well founded in the absence of an informa- tion in writing or upon oath ; but i am of opinion that there is nothing in the Act to destroy the jurisdiction of the Magistrates to enquire into a charge of an Indictable Of- fence where the person charged is actually in custody before them." It will be observed that many of the cases which lay down the law, that it is necessary to have an information in writing or under an oath, have reference to the state- ment of the information in the old form of convictions, where it of course became necessary to shew in that part of the conviction all the ingredients to give jurisdiction. See remarks of Huddleston, B., in lieg. v. Hiujhes. The form of conviction given by the Act omits the infor- mation. Lopes, J., sums up the law in such cases in his short judgment in lleg. v. Hughes. He says : — " I think the warrant in this case was mere process for the purpose of bringing the party complained of before the Justices, and 188 SUMMARY CON\'ICTIONa. had notliing whatever to do with the jurisdiction of the Justices. I am of opinion, that whether Stanh'V was summoned, hrought ])y warrant, came vohintarily, was brought hy force, or under an illegal warrant, is imma- terial, being before the Justices, however brought there, the Justices, if they had jurisdiction in respect of time and place over the offence, were competent to entertain the charge." The dictum of Holt, C. J., in Hex. v. FitUcr, 1 Ld. I^iymond Eep. 600, recognizes the legality oi a con- viction ui)on an information instiuder. In the case of BlaJa' v. liaech, 1 L. 1{. Ex. D., 320. The respondent laid an information before a Justice that a house was " kept and used as a common gambling house," within the meaning of the " Act to amend the law con- cerning games and wagers," (8 & 9 Yic, c. 109), ai '. thereupon the Justices granted a warrant, under which the appellant was arrested at the house in question. He was brought before two Justices am. charged under the '* Act for the suppression of betting houses," (IC & 17 Vic, c. 119), 8. 3, as "the person," who "having the management of a room " in the house, used it " for the purpose of betting with persons resorting thereto." No information was laid, nor was any summons issued under the last named Statute ; and the appellant did not waive this omission. The charge having been heard he was con- victed, and a penalty was imposed. Held, (per Cleasby, B., and Grove, J.; Field, J., dissenting) that the conviction was wrong and must be quashed. This case may be considered as partially overruled, or at least modified by the decision in Reg. v. Hughes, above cited, although a distinction may be drawn, that the party in the case of Blake v. Beech, was informed against under one Statute, and proceeded against upon another ; but ac- cording to the judgment of Field, J., confirmed in Iteg. v. Hughes, this objection would not be available under the cir- cumstances, if the party being before the Justice, as in the case of Reg. v. Hvghes, and the Justice having jurisdiction over the offence and person, time and place. INFORMATION. 189 In 2 Hawk. 28, it is Siiid, " it seemeth phiin fi fom the nature of the thinf,', that there can l)e no need of process where the (left jndant is present in coiu't, but only w here ho is absent. »» Dvfciuhuit mmt he L<'(i Riffht of Party to Address Court. The right of either party to address the Court exists only at the opening of their respective cases, (see section 40) ; bu not unfrequently the Justice allows Counsel to sum up and add>*ess the Court, but this must be considered a favor dependant on the consent of both parties. 210 SUMMARY CONVICTIONS. Dismissal of Case. If no case has been made out, or if the alleged oflfence has been answered, to shew that the partj' is not liable to conviction, or that no order should be made on the com- plaint, the parties considering the whole matter shall either dismiss the case or convict. See section 41. In cases of trifling assaults, discretion is given to the Justice to dismiss the complaint as one not deserving any punishment, even where there has been evidence of an as- sault : see Act 32-33 Vic. cap. 20, s. 44 ; or where the assault has been a justifiable one. Negativing or Disproving Exceptions, in Information. By section 44, it is incumbent on the defendant to prove the affirmative in his defence, if he wishes to have advantage of the exception, where information or complaint negatives any exemption, exception, proviso or condition in the Statute, on which the information or complaint is founded. The information should shew that an offence has been committed, and if, under certain conditions or provisos the act or omission, as the case may be, would not be an offence it should be alleged that the defendant does not come under the excepting condition, etc. If however, the information is laid without negativing such exception, etc., the com- plainant would have to prove on his side the offence, and that the party was not excused or exempted ])y virtue of the exception, condition, or proviso, etc. Where an act is made punishable by Statute on Summary Conviction, which act may be lawful if performed under certain circumstances, those circumstances ought to be negatived in the convic- tion. When the proof must negative such circumstances, the allegation in the conviction ought to do the same, and in such cases a statement of the offence in the terms of the Act creating it, is not sufficient : Fletcher v. Calthrop, 1 New Sess. Cas. 529, 6 Q. B. 880. ADJOURNMENT, ETC 211 [ offence liable to he com- lU either a to the p'ing any )f an aa- here the lation. prove the mtage of tives anv atute, ou as been dsos the n offence ae under )rmation he com- nce, and drtue of an act is n, which istances, convic- aces, the 3, and in 18 of the >p, 1 New Proceeding Ex Parte — Non-a2)pearo)icc of Party. Sections 7-32 make provision that, in case, the defen- dant does not appear according to the summons, that on due proof of service „i same, the Justice may proceed ex parte and adjudicate in the matter of complaint in same manner as if party before him ; and by section 32, the Justice is empowered instead of so doing to issue his warrant and adjourn the hearing of case until defendant is apprehended. Adjournment — Dismissal of Case. The Justice is empowered by section 46 to adjourn the hearing of any case ; and if defendant or prosecutor does not appear at adjourned time and place, or by Counsel or Attorney, (section 47), the Justice may then proceed to the hearing or further hearing of the case, as if the party or parties were present. And by section 48, if the prosecutor or complainant does not appear, the Justice may dismiss the information or complaint with or without costs. In cases of a trivial nature, or where on part hearing the evidence, it is of an unsatisfactory nature, and the prosecutor fails to appear to further pros'^cute, the Justice should dismiss the case ; and by section 48, it would appear that the complaint or information should be dis- missed as a matter of legal proceeding on failure of appear- ance of prosecutor in first instance of hearing, and such dismissal to be with or without costs in Justice's discretion. Section 49, makes provision for proceedings, on forfeited recognizances, if defendant fails to appear. Disqualifying Interest in Justice. T} Though any pecuniary interest, however small, on the subject matter disqualifies a Justice from acting in a judicial inquiry, the mere possibility of bias in favor of one of the parties does not, ipso facto avoid the Justice's deci- fiion, in order to have that effect, the bias must be shewn at 212 SUMMARY COm'ICTIONS. least to be real ; wherever there is a real Ukelihood that the Judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act. Beg. v. Rand., 1 L. R., Q. B. 229. In same case the Court says, "we think that Reg. v. Dean of Rochester, 17 Q. B. 1, is an authority that circumstances from which a suspicion of favour may arise, do not pro- duce the same effect as a pecuniary interest." If a Justice has a real interest as might give him a bias in the matter, he ought not to sit as a Justice with others, and it is immaterial what part he reaUy took in the matter. Reg. V. Meyer, 1 L. I?., Q. B. D. 173. On shewing cause in this case, M. (the Justice) made affidavit that, though he sat on the bench, he took no part until the other Justices had unanimously determined to convict, when he (M.) proposed a mitigation of the penalties, and that he did not sign the convictions, and the court made a rule absolute for certiorari against M. The interest which, at common law disqualifies an officer from acting in a judicial inquiry, must be direct and certain, and not merely remote or contingent. Reg. v. Manchester, etc., Railway Company ; 2 L. R., Q. B. 336. When a Justice is expressly empowered by Statute to hear and determine, although interested in the result, he is then not disqualified in acting. In Reg. v. Simmons, 1 Pug., 158, N. B'k. It was decided that, if the Justice is interested in the prosecu- tion, as where he was a member of the Division of Sons of Temperance, by which a prosecution for selling liquor was carried on, he is incompetent to try the cause, and a, conviction before him is bad. Next or Nearest Justice. This expression necessarily means the next or nearest disinterested Justice having jurisdiction. Where on a hearing of a complaint, an objection to a Justice on the ground of interest is waived l)y the parties, the Justice has jurisdiction, and the want of jurisdiction. od that have a wrong r. Dean stances lot pro- 1 a bias others, matter. s) made no part lined to of the and the ifies an ect and Reg. V. 336. ;ute to 3ult, he It was- irosecu- di Sons Uquor and a. nearest )u to a )arties, kdiction JURISDICTION. 213 on that ground cannot afterwards be raised. Wahcfidd Board v. West Ilidinc], etc., liaibcay Cojipany, 1 L. II., Q. B. 84. Jurisdiftion — Ouster of — Assault — Summary Conviction on — Title to Land in Question. On a hearing of a complaint for an assault under the provisions of 32-33 Vic, c. 20, s. 43, if it be shewn that a buna fide question as to title to lands is involved, the juris- diction of the Justices is at once ousted (see s. 46 of latter Act), and the .Justices cannot proceed to enquire into and determine by Summary Conviction, any excess of force alleged to have been used in the assertion of title. Reg, V. Pearson, 5 L. E., Q. B. 237. The claim of title must be bona fide, and not one that is absurd and impossible in point of law, and the question is "whether a reasonable claim of right is involved, honestly asserted. See JVatlins v. Major, 10 L. Pi., C. P., 662. Discretion in Issuing Summons on Information — Refusal. Upon an api)lication to Justices against certain persons to answer a charge of conspiracy to break the peace ana do grievous bodily harm at a public meeting, evidence was given that a disturbance had arisen at the meeting, in which the defendants took part, and that one or other of them had previously offered money to different persons, if they would commit acts of violence at the meeting. The Justices, after hearing the evidence, declined to issue the summonses, and a rule nisi for a mandamus having been obtained, they stated in their affidavit that upon the facts brought before them, they did not feel justified in granting the application, but did not say that they thought the witnesses unworthy of credit : Ilehl, that the rule must be made absolute, for, although under 11-12 Vic, c 42, s. 9, the .Justices are to issue their summons, " if they shall think fit," it was here evident that they had not exercised a discretion. Reg. v. Adamson, 1 L. R., Q. B. D. 201. 214 SUMMARY CONVICTIONS. Mandamus. If the Justice or Justices refuse to enforce the powers con- ferred upon them, and the execution of those Acts which is required to be done by them, the Court will issue a man- damus or grant a rule against them to compel the perform- ance of their duties, but no mandamus will issue to compel the Justice or Justices to give the reasons for their judg- ments, or make special entries thereof on their records : Rex. V. Devon, Justices; 1, Chit. 34. The Court will how- ever, issue a mandamus to hear an appeal, if the Sessions have refused to hear report on erroneous decision as to the sufficiency of the notice of appeal or matters preliminary to the hearing, involving matters of law and not of fact only: Reg. v. Kesteven ,Justices; 3, Q. B., 810, 11 Jurist,, 185. CHAPTER IV, Service of Minute of Order. Defendant to be served with a copy of the minute of order before distress or commitment. See section 52. This section refers only to orders and not to convictions A party duly convicted of an offence is bound to take notice of the terms of the conviction at his peril : Beq. v. O'Learu 3 Pug. 244, N. B'k. ^ ^^cary, Costs. By section 53, power is given to the Justice to award costs against the defendant in all cases of convictions or orders, such costs to be reasonable in that behalf and in accordance with the fees established by law on proceedings had by and before Justices of the Peace. By section 54, costs may in like manner be awarded to the defendant when the case is dismissed, and by section 55, such costs are to be specified in the conviction or order, or order of dismissal, and recoverable in the same man- ner, and under the same warrant as any penalty adjudged to be paid by the conviction or order is to be recovered, and by section 56, costs may be recovered by distress and sale of the goods and chattels of the party, and in default of distress, by imprisonment with or without hard labour for any time not exceeding one month, unless the costs are sooner paid. The amount of costs must be specified in the conviction or order: Ex parte, Hartt, 3 All. 122, N. B'k.. 216 SUMMARY CONVICTIONS. Statutes relating to costs are and ought to be construed strictly and according to the letter: 3 Burr. 128G; Hex. v. Inhabitants of Glastonhy, Ridg. Temp. Hard. 355. On appeal the conviction may be amended as to costs. If costs are awarded by virtue of the Act and the Act does not authorize the adjudging of costs of commitment and conveying to gaol, the conviction will be bad, as being in excess of jurisdiction, and on certiorari will be set aside. Reg. v. Ilarshman, 1 Pug. 317, N. B'k. Costs on Appeal — Recovery. See sections 69-74. Enforcement of payment of same. See section 75. Warrant of Distress, Warrant of distress where pecuniary penalty or com- pensation ordered. See section 57. Backing of warrant for execution in other County. See section 58. And remarks on backing warrants under chapter relating to Indictable Offences. Section 23. When the issuing of a warrant would be rubious to defendant, or there are no goods, Justice may commit. See section 59. When distress is issued, defendant may be bailed or detained until it is returned. See section 60. If defendant does not afterwards appear, the recogniz- ance to be certified and transmitted to the proper officer. See section 61. In default of sufficient distress, Justice may commit defendant to prison — Proviso as to term of imprisonment. See se^'ticns 62-64. ' r of payment of amount of distress. — Constable to i, oiv^e i'^ .ocute warrant. See section 83. i" r • n; '^- of penalty and costs to keeper of gaol — Party to be di3oltarged. See section 84. A commitment of the person ought not to take place, where provision is made, that the sum to be levied is first to be by distress on the goods and chattels. led or 30gniz- place, is first DUTIES OF CLERK. Cumulative Sentence. 217 Seotion 63 provides that, where a defendant is adjudged to be imprisoned and the defendant is then in prison under- going imprisonment upon conviction for any other offence, the warrant of commitment for the subsequent offence shall be forthwith delivered to the gaoler, or other oflicer to whom it is directed, and the Justice or Justices who issued the same, if he or the}' think fit, may order and award therein, that the imprisonment for the subsequent offence shall commence at the expiration of the imprisonment to which the defendant was previously sentenced. This section is similar to section 25 of 11-12 Vic. c. 43, English Statute, and under that Statute the Court of Queen's Bench have decided that, where the defendant is summarily convicted at one time of several distinct offences, the Justices have power to award that the imprisonment under one or more of the convictions shall commeiice at the expiration of the sen- tences previously pronounced. Reg. v. Cutbnsh et al., 2 L. E., Q. B., 379. The Court in this case, held that the man may be said to be imprisoned from the moment he is convicted of the first offence and sentenced to imprisonment under it, and that the Justices, in making the second sentence commence at at the expiration of the first, acted within their jurisdiction. Clerk of the Peace — Duties of. Section 80. Clerk of the Peace or other proper officer to publish and post up returns made by Justices. Section 81. Copy of Eeturns to be sent to Minister of Finance. See section 3 of Act, 33 Vic. cap. 27 (1870), altering above sections which is inserted after section 77 of Act 1869. Any duty imposed on any officer by the term " Clerk of the Peace," the said term shall include the proper officer of the Court having jurisdiction on appeal under the said Act (32-33 Vie. cap. 31) and the Acts amending the same : 40 Vic. cap. 27, 1877. 15 S.C.L. CHAPTER V. APPEAL. Notice of Appeal — Conditions. The section 65 of Act, 32-33 Vic, c. 31, (1869), has been repealed and a substituted section, 33 Vic, c 27, (1870) given, which has also been in part repealed by, 40 Vic, c. 27, (1877), and reads as in section 65 of Act, which see a form of notice of appeal is also given by Act, 35 Vic, c 27. See forms. The grounds of appeal are not required to be stated. Witnesses and evidence other than called or adduced at original hearing may be allowed. The section 66 of Act 1869, has been amended as to evidence in appeals under the said Act, and reads as in section 66. See also sections 67, 68. Appeal. The Act, 40 Vic, c 27, which repeals the substituted section contained in Act, 33 Vic, c 27, gives the right of appeal to certain Courts therein specified, unless otherwise provided in any special Act, under which a conviction takes place, or an order is made by a Justice or Justices of the Peace, or unless some other Court of Appeal having jurisdiction in the premises, as provided by an Act of the Legislature of the Province, within which such conviction takes place or order is made, and give a right of Appeal in all cases where no such provisions are made, to the Courts specified in section. By this provision it would seem to be the intention to allow appeals in all cases, whether the proceedings APPE^Oi. 219 as ta as in lavmg |of the riction )eal in ;!ourts 1 the jdinga have been under this Summary Conviction Act, or any other special Act, where provision for appeal has not been made, subject nevertheless to the conditions and provisoes con- tained in said Summary Conviction Act. If any other Com*t of Appeal having jurisdiction in the premises, is provided by an Act of the Legislature of the Province within which such conviction takes place or order is made, then the appeal shall be to such Court — otherwise the appeal shall be made to the Court as named in the sec- tion 27, 40 Vic, c. 27. Appeals in Province of Ontario. See Revised Statutes of Ontario, Chapter 74, " An Act respecting Summary Convictions before Justices of the Peace," and Chapter 75, "An Act respecting the procedure on appeals to the Judge of the County Court from Summary Convictions. Province of Prince Edward Island. Any appeal to the General or Quarter Sessions of the Peace, from any conviction by, or order of a Justice of the Peace, given by the Act passed in the session held in the thirty-second and thirty-third years of Her Majesty's reign, and entitled " An Act respecting the duties of Justices of the Peace out of sessions in relation to Summary Convic- tions and Orders," or by the Act amending it, passed in the thirty-thu'd year of Her Majesty's reign, and entitled, "An Act to amend the Act respecting the duties of Jus- tices of the Peace out of sessions in relation to Summary Convictions and Orders," shall, in the said Province, be to tne Supreme Court at the sitting thereof held next after the expiration of twelve days from the time when such con- viction was had, or such order was made ; the proceedings prior to the appeal being governed by the Act hereby ex- tended to the said Province and first mentioned in this, section : 40 Vic. c. 4, s. 6. It will be observed that the present Dominion of Canada Statute has made provisions in regard to appeals from con- victions confining such to the merits of the case. By sec- tion 68, it is provided that in all cases of appeal from any 220 SUMMARY CONVICTIONS. Summary Conviction or Order, bad or made before any Jus- tice or Justices of tbe Peace, tbe Court to wbieb sucb appeal is made, sball bear and determine tbe cbarge or compbiint on wbicb sucb conviction or order bas been bad or made, upon tbe merits, notwitbstanding any defect of form or otberwise in sucb conviction or order, and if tbe person cbarged or complained against is found guilty, tbe conviction or order sball be affirmed, and tbe Court sball amend tbe same if necessary, and any conviction or order so affirmed, or afiirmed and amended, sball be enforced in tbe same manner as convictions or orders afiirmed on appeal. And by Act, 38 Vic. p. '27, sec. 3, sub-sec. 3, it is fur- tbor provided, tbat tbe Court to wbicb sucb appeal is made, sliall tbereupon bear and determine tbe matter of appeal and make sucb order tbereon witb or witbout costs to eitber party, including costs of tbe Court below, as to tbe Court seems meet, and in case of tbe dismissal of tbe appeal or tbe affirmance of tbe conviction or order, sball order and adjudge tbe offender to l)e punisbcd according to tbe convic- tion, or tbe defendants to pay tbe amount adjudged by tbe said orders and to pay sucb costs as may be awarded, etc. By tbese sections it is made a question of fact wbe- tber tbe party is guilty of tbe offence cbarged, and if tbe evidence warrants sucb conviction, tbat tbe conviction sball not be quasbed, notwitbstanding tbat in tbe conviction tbere may be defects of form or otberwise ; and if tbere is anytbing in tbe conviction unautborized by Statute, tbat tbe conviction or order may be amended by tbe Court on appeal, and enforced as amended and be as if no sucb defects or errors bad ever been in tbe same. Tbe Statute in tbe clauses in reference to appeals is somewbat perplexing, and tbe arguments on different views of tbe sections of Act may best be illustrated, by citing t\VO judgments delivered on same, one, by one of tbe County Court Judges, New Brunswick, and tbe otlier by tbe Su- preme Court, N. B., on a case submitted for opinion of tbe Judges. In tbe former judgment of County Court, tbe Queen on APPEAL. 001 the complaint of Leonard R. HdvtUnri v. WilUani ILn-prr, Carlton County Court, 1875, the Judge says ; (( ' lis is Hews t\V0 funty Su- the In on The above matter comes before the court on appeal, under the provisions of the Statute of the Dominion of Canada, 32 and 33 Vic, c. 31, and 33 Vic, c 27, the appeal is founded on a conviction made by the above named Justice, against the above named Harper for an assault and battery on one Leonard li. ILtrdinr/, the complainant ; and the jurisdiction of the Justices is derived from the Dominion Statute, 32-33 Vic, c. 20, s. 43, which provides that, where any person unlawfully assaults or beats any person, any Justice of tlio Peace, upon complaint by or an behalf of the party aggrieved — praying him to jn'oceed summarily on the com- plaint — may hear and determine such offence. The con- viction in said case does not on its face set out the prayer to proceed summarily, — the information or complaint however contains the prayer of the prosecutor or com- plainant to proceed summarily to try the charge. The appellant contends that the conviction should contain the prayer aforesaid, in order that jurisdiction should appear on the face of the conviction, and that it is not sufficient that the information contains the prayer. He further objects to the conviction as being in excess of jurisdiction and bad, inasmuch as the conviction contains the awardhig of costs of conveying the party to gaol, and that thereby, the defendant is convicted in a larger penalty than the Statute allows. "As to the necessity of jurisdiction appearing on the face of the conviction, this (if necessary) may, I consider, be inserted in the conviction on amendment of same, inasmuch as the jurisdiction of the Justices is founded on the informa- tion — the Justices had jurisdiction to try the complaint by prayer being made in the information or complaint — that jurisdiction continued up to the time of making the deci- sion or adjudication, and the not inserting it in the convic- tion was, (if necessary to insert it) a defect which, I think, is clearly amendable, and which the Court would be required by the Statute to amend. 222 SUMMARY CONVICTIONS. "As to the other ground of objection, which is, uiulcr the decision of the Supreme Court, see W'nina v. I[nrs}imnn, 1 Pug., 317 — a substantial one, and which is patent to the conviction, I must hold it fatal to the conviction, and such a substantial defect, which I do not con- sider by the language of the Statute, is one which the court can amend. No doubt but that section 08 of Statute, 32-33 Vic, c. 81, requires that the merits shall l)e heard and determined, notwithstanding any defect of form or otherwise in the conviction or order, l)ut I do not consider that is clearly intended to embrace defects for substance. "The section G7 of said Statute expressly refers to defects in substance or in form in reference to information, com- plaint or summons, or any variance l)etween such, and the evidence adduced thereon at the hearing as not being available, unless the same was objected to before the .Justice, and he refused to adjourn the case, and the party prejudiced thereby ; reading the two sections together, I consider that, where the conviction is defective in such matters of form or otherwise as are not allowed to stand in the wav of hear- ing before the Court as to the merits, the Court may amend the conviction as to any such defects if necessary ; such amendment would not be inconsistent with the Court on affirming the conviction or ordering under the provisions of the s. 1, sub-sec. 3 of 33 Vic, c 27, (Statute, 1870), that the offender be punished according to the conviction, or that he pay the amount adjudged by the said orders ; or, with the Court of Appeal — if it thought necessary — issuing process for enforcing the judgment of the Court below; but how can this be done, should the Court of Appeal amend or alter the judgment ? that is, the adjudication of the Court below, and which, I consider, is a mntter peculiarly within the Province of the Justice himself to determine. " Suppose, for example, that the Justice should wi'ongfully adjudicate, that for the assault in the present case, where the punishment is limited to two months' imprisonment, the party should be ordered to be imprisoned for three months, and that the Court on appeal, should proceed with APPEAL. 223 Iho hearing, and bo of opiuion that the party should be convicted, the Court could not, m such case, under section 1 of Act of 1870, adjudge the offender to be punished according to the conviction — which that section expressly directs shall he done — then what other punishment should the Court on appeal awarl, should it be one day or two months — this would he taking the matter out of the discre- tion of the Justice, and would be a new adjudication, which the Statute does not expressly authorize ; so likewise, if the Justice had imposed a fine of !?40, where the Statute limits it to $20. The Act of 1869, sec. OG, says, 'that the Court on the finding of the jury shall give such judgment as the law requires.' Such was the provision likewise of the law of appeal under the Ontario Statute, c. 114, Con- solidated Statutes, and if the power was not governed by the express direction of the Dominion Statute of 1870, sec. 1, sub-sec. 3, a proper judgment might be pronounced after a hearing on the merits, but the Court on appeal is now limited to the adjudging the party to be punished accord- ing to the conviction ; and the conviction in the present case, awarding in fact a greater penalty than the law allows, is the matter of which the appellant com;plains, and as to which he thinks himself aggrieved, and thereupon makes his appeal and is the matter of appeal which the Court has to determine, and however the merits may be as to the facts of the case, I could not adjudge the party to be punished according to the conviction as in the before recited sub-sec. 3 of 33 Vic, c. 27, is directed to be done, and therefore, must refuse to hear the charge or complaint on which the conviction or order has been made, as before a jury, which, if so heard and found againtit the appellant, would require me to adjudge the offender to be punished according to the conviction 'which is in excess of what the law allows, and therefore should not be enforced. " The section 71 of Act, 32-33 Vic. cap. 31 (1869), provided generally that no certiorari should lie for defects of form, Jb it that section is repealed and a substituted section given in 224 SUMMARY CONVICTIONS. / Act of 1870, which restrams the issuing of a certiorari where the objections are to matters of form, and where the conviction or order has been affirmed, or amended and affirmed, leaving the conviction, I conceive, still assailable as to matters of substance, and comparing the above sub- stituted section with the 73rd section of Act of 1869, the conviction shall not be set aside, vacated or annulled in consequence of any defect of form whatever, where the merits have been tried, the party having appeared and pleaded, or where the defendant having opportunity has not appealed, or when having appealed the conviction has affirmed, would seem to permit the conviction as such, to be still assailable for defects in substance potent to the conviction, although the conviction as such shall not be vacated for defects of form, where the charge or com- plaint on which such conviction has been made, has been heard or determined on the merits, or been confirmed on appeal, or where the party having opportunity has not appealed. It would seem therefore to be within the pecu- liar duty and province of the Court of Appeal to deal with and determine the defects in substance in the conviction itself, before hearing the charge or complaint on which such conviction is founded." In opposition to the judgment above delivered, the Judges _f the Supreme Court of New Brunswick have delivered an opinion on a case submitted to them by one of the Judges of the County Courts, and which is certainly more in ac- cordance with the seeming intention and spirit of the Statute, than tl ^'; expressed in the foregoing judgment. The case was one of Summary Conviction for an assault before a Justice of the Peace, under Stat. 32-33 Vic. cap. 20, s. 43 Canada Acts, and is as follows : — ** The convic- tion adjudged defendant to pay a fine and costs amounting to $20, and in default of payment to be imprisoned for seven days unless the said sum andthe costs and the char (fcs of convejjing defendant to f/aol be sooner paid. This part of it is not authorized by the Act ; defendant has appealed from the conviction under 32-33 Vic. cai?. 30, s. 65^ APPEAL. 225 . 65^ amended by 32 Vic. cap. 27, which substitutes a new sec- tion which directs, that the Appellate Court shall hear and determine the merits of appeal and make such order there- in as seems meet, and in case of the dismissal of the appeal or the affirmance of the conviction shall adjudge the offender to be punished according to the conviction. The 68th section of 32-33 Yic. cap. 30, authorizes the Court of Appeal to hear and determine the matter upon the merits, notwithstanding any defect of form or otherwise in such conviction or order, — " and if the person charged is found guilty the conviction shall be affirmed, and the Court shall amend the same if necessary, and any conviction so affirmed, or affirmed and amended, shall be enforced in the same manner as convictions or orders affirmed on appeal. "Judge Steadman wishes the opinion of the Judges whe- ther on appeal he has the power to amend the conviction by striking out that part of it which relates to the cost of conveying the defendant to gaol. " An appeal differs from a removal of a conviction on certiorari in this respect, that an appeal is a new trial on the merits, 2 Chit., G.P. 215, and by the express terms of the 66th section of the Act, 32-33 Tic, c. 31, the Judge is made Judge of the fact, as the law in respect of the con- viction and by section 68 is to determine the matter on the merits, notwithstanding defects of form or othern-ise. If on the hearing of an appeal, the Judge finds the defendant guilty of the charge, is he not authorized or perhaps bound to affirm the conviction, (the Act says that in such case the conviction shall be affirmed), and to make such neces- sary amendment as may be requisite to make it comply with the provisions of the Act ? In fact, is he not put in the place of the Justice who originally tried the case ? He can amend the conviction if necessary. It is necessary to amend the conviction her. because the Justice has added something with respect to costs not authorized by the Act. The objection is not one strictly to the conviction, in (which is the fine) ; but to the terms of imprisonment fixed, if the defendant refuses to pay the fine. Judge Walters thinks 226 SUMMARY CONVICTIONS. that under the words of the amended Act, section 65, * And shall adjudge the offender to be punished according to the conviction ' — he cannot amend the conviction, but must either absolutely affirm or reverse, as he has no power to apportion the imprisonment and cannot tell how much of it was applicable to the costs of conveying the defendant to prison. If that view is taken it would seem to neutralize the power of amendment given by section 68, the object of which seems to be to prevent a guilty party from escaping punishment in consequence of a mistake by the Justice. "All the Judges think that under the 68th section of Act the Judge on appeal has power to amend the conviction and strike out that part which relates to the costs of con- veying the party to gaol — that the amended section 65 shall be read in connection with section 68, and that the conviction as amended by the Court of Appeal should be enforced." Reg. v. Harding. — J. C. Allen, C. J., October 16, 1878. In the view of this opinion, the Court on appeal try the cause of complaint, and if party guilty in fact and law, makes a conviction in accordance therewith, irrespective of the conviction of the Justice should the same be bad, and the conviction to be considered as one of fact, or fact and law combined as to the liability of party to be convicted and this is what is to be affirmed. And it would follow that the Court ')i Appeal when necessary would have to impose the penalty, following as near as can be the discretion of the Justice as to the nature or amount of same in conviction made by him. Under the Canada Act, the forms of conviction, given in Schedule (I) 1, 2, 3, apply to all cases and convictions drawn up in such of the forms as are applicable to the particular case, are sufficient, except in cases where proceedings are liad under any Law or Act creating the offence or regulating the prosecution for same where a particular form of convic- tion is given. (See section 60.) APPEAL. 227 So also in regard to orders. Section 51. (See schedule (K). 1, 2, 3.) Where an Act of Parliament gives the form of conviction for any offence prohibited by the Act, that form must be followed, and a conviction drawn up in any other form is illegal, and the Justices and those acting under it are tres- passers : Dawson v. Gilly 1 East. 64 ; Goss v. Jackson, 3 Esp. 198. As on an appeal as provided for in the Canada Act, the whole case is to be gone into, evidence given to support the conviction, in oi'der that it may be known whether or not the material facts alleged in such conviction and upon which the same may be founded, has to be gone into by the Court on appeal. Cases can rarely arise under that Statute where there is sufficient evidence to support the conviction or order, in which the conviction can be set aside for defects in the information, or in the conviction itself. On certiorari it would be otherwise, for such facts cannot be enquired into, and the conviction amended according to the facts as can be done on appeal. Thus, where the facts on certiorari cannot be enquired into, an information charging an offence in the alternative is bad, as charging the defendant with selling ale or beer without license : Rex. v. Saddler, 2 Chit. 519. So where a Statute directs that no person shall expose to sale metal buttons marked with the word gilt, (the same not being really gilt) knowing the same not to be gilt, under a certain penalty ; a conviction charg- ing that the defendants did the act unlawfully and fraudu- lently, cor.trary to the form of the Statute, is bad, without an expre* charge that they did it knoivingly, and such defect is no.. u.Ided by a proviso in the Statute that no con- viction for any offence in the Act should be set aside for want of form, or through the mistake of any fact, circum- stance or other matter, provided the material facts alleged were proved, for this in effect requires all material facts to be alleged, and knowledge is. a material fact to constitute such an offence : Rex. v. Jukes, 8 T. R. 537. 228 SUMMARY CONVICTIONS. In this case Lord Keiiyon, J. C, draws the distmction between an appeal where the whole case can be gone into and the facts necessary to constitute the offence can be enquired into, (as may be done and is required to be done by the Canada Act), and a certiorari where the facts cannot be enquired into ; so that it would appear that on an appeal which is in fact a new trial, the fact of knowledge might be shewn, and the defect in infor- mation cured bv evidence, and the conviction sus- tained according to the evidence on the merits. The real question for decision on appeal is, whether the party is guilty of the offence against the Statute under which proceedings are instituted ; there may be defects in the information, both in substance and form, and if the party is misled or prejudiced in his defence by such, he may take his objection and the Magistrate is empowered and required in such cases to adjourn the hearing, and he is constituted the Judge as to whether the person charged^ is misled or deceived by the information. The appeal be- ing from the conviction, it would seem to be the spirit and intention of the Act, that the hearing of the matter on appeal must be confined to the hearing of the charge or complaint, which is founded upon the particular Statute under which the Magistrate has jurisdiction, and against which the offence is charged ; and although the informa- tion may be defective in the statement of the offence, yet, if no objection is taken and the party is not shewn to have been deceived or misled, the question on appeal is, has the offence against the Statute in the terms thereof, and as to which the defendant has knowledge, been proved ? The case is heard anew, additional evidence may be adduced and other witnesses examined than were before the Court below, and a new trial in fact had, and the Court on appeal, a new judge in the case, when the real question is one on the merits which may be wholly of fact, or fact and law. It may happen that facts are proved, which in the opin- ion of the Justice constitute an offence, but he may be CERTIORARI. 229 mistaken in the law or construction of particular Statute under which the offence is alleged ; in such a case, the appeal would be on the merits, and objection equally avail- able as on certiorari. In ex parte, Shannohan Sup. Court, N. B., Hilary Term, 1880, a conviction was had under the Dominion Stat. 37 Vic. cap. 45, s. 96, for exporting raw hides which had not been inspected and stamped. The section enacts, — "that the inspection of raw hides shall be compulsory at every place where an inspector has been appointed, and every raw hide sold or offered for sale or exported, offered for export or laden in any vessel for the purpose of Ijeing exported and which has not first been inspected and stamped or marked as herein required, shall be forfeited, and the person so selling, offering for sale, or exporting the same shall incur a penalty of one dollar for every hide so sold," etc. The defendant resided in St. John, N. B., which was an inspec- torial district, there was no proof of his having sold or offered hides for sale there, but that he had sent a quantity of hides to Fredericton, N. B., which he said he had sold there. The Justices held that this was " exporting " with- in the Act and imposed the penalty. The Court held, that the conviction was wrong, and that exporting meant send- ing out of the Province, and a certiorari was granted. The matter of appeal in such a case had it come up on appeal under the Summary Conviction Act, would be one on the merits and involved the legal liability of defend- ant upon facts about which there was no dispute, but on the construction of a Statute, and being a question of law the Court of Appeal would decide on such as to the liabili- ty of defendant. Certiorari, The jurisdiction of the Supreme Court is very extensive in regard to certiorari ; — afficlavits may be used to shew want of jurisdiction in the Justice, when that fact does not appear in the Return, and the case of Reg. v. Gillyard, 12 Q. B. 627, is a strong authority to shew that the Queen's 230 SUMMARY CONVICTIONS. Bench have jurisdiction to quash on conviction upon other grounds than want of jurisdiction in the Magistrates, as for example, on the ground of fraud, conspiracy and per- jury, in obtaining it. As to the objection available in cases of conviction by certiorari, we do not intend to enter into a minute discus- sion of such. The principles applicable to ^baking the same available, may be gathered from the foregoing state- ments and illustrations. The right of certiorari is not taken away by the Statute, except in cases where the conviction or order is affirmed, or affirmed and amended on appeal : see 33 Vic. cap. 27, s. 2^ being substituted sectr " section 71 of Act, 1869 ; and it wi have been seen l\ d. .ly convictions that are made good by the Court on appeal would be held bad and not amendable when reiucved by C'^rtiorari. The Justices should follow the forms givt.n ir> iSf hec^.ule to Act as closely as possible, and insert nothing in the conviction or order, not warranted by the Statute against which the offence is alleged, either in way of penalty, punishment, costs, or otherwise. Warrants of Commitment. Section 2, of 33 Vic. cap. 27, provides that no warrant or commitment shall be held void by reason of any defect therein, provided it be thereon alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. The Justices have to draw up the warrant or commit- ment in accordance with the forms given, and where the Act authorizes the Justice to issue his warrant or commit- ment, and he follows the form in Act, it will be held good : see sec. 96, of Act. In the case of. In re Allison, 104-567 Alderson, B., says: " Since the passing of the 11-12 Vic. cap. 43 " (similar to the Dominion Statute) " all that Magistrates have to do in drawing up warrants and convictions is to follow the forms given ;" or words to the like efiect. WARRANT or COMMITMENT. 231 If the Justice had no jurisdiction whatever to make con- viction, any warrant or commitment thereon will be void, and this may be enquired into at the trial of an action brought against the Justices or those acting under such warrant or commitment : Crepps v. Durden et al., Cowp^ 640. If the conviction be bad on the face of it, no act done in pursuance of it can be justified, and every seizure of pro- perty or person under same, will form the subject matter of an action. The judgments of all Courts are void in the absence of jurisdiction ; the jurisdiction of Superior Courts will be presumed unless manifestly wanting, but no such intend- ment can be made in the case of inferior Courts, and their proceedings will be nullities unless they show jurisdiction over the cause and the parties. Whenever the nature of the charge made before a Magis- trate is such, that it will be within the limits of his au- thority, if true, his jurisdiction will attach, and the juris- diction in such cases does not depend upon the truth or falsehood of the facts, or upon the sufficiency of the evi- dence to establish the corpus delicti of the charge brought under consideration : Cave v. Mountain, 1 M. & G. 257. The question of jurisdiction does not depend on the truth or falsehood of the charge, but on its natm'e. A conviction by a Magistrate who has jm'isdiction over the subject matter is conclusive evidence of the facts stated in it : Brittain v. Kinnaird, 1 B. & J3. 482. And a convic- tion made by a Magistrate, having jurisdiction over the matter and person, and exercised within the proper place in which he has jurisdiction, cannot be controverted as to the facts found: Basten v. Careiv, 3 B. & C. 649; Fawcet V. Goicles, 7 B. & C. 394 ; Reg. v. Boulton, 1 Ad. & Ell. N. S. 515. If the case has been decided on the merits and there has been no appeal as provided for in the Statute, the conviction will remain in force and cannot be controverted on a subsequent trial of trespass or otherwise. In such a 232 SUMMARY CONVICTIONS. case the conviction would be a good and valid one to sus- tain the warrant or commitment, so far as the facts are concerned. See section 73 ; and even in cases of applica- tions for certiorari, when a conviction or order of Justices is returned to the Court and the proceedings are regular in form and in practice, and the case one over which the Jus- tices had jurisdiction, the Court will not hear aliidavits im- peaching their decision on the facts, nor if they return the evidence, will it review their judgment thereupon, and the test of jurisdiction, under this rule is, whether or not the Justices had power to entor upon the inquiry, not wliether their conclusions in the '-ourse of it were true or false. Though the conviction is conclusive upon matters of fact, and if the defendant means to rely on matter of fact, he should make his defence at the time, yet the rule is differ- ent as to matter of hue, as if a conviction of two persons be joint, where for offences ex necessitate rei several, it will be void, and trespass may be brought if it is acted upon : Morgan v. Brown, 4 Ad. & Ell. 515; and so also in the case of a single conviction of one person for two distinct offences: Newman v. Bendshije, 10 Ad. & Ell. 11. The section 2, Act 1870, requires that there be a good and valid conviction to sustain the warrant or commitment, and so far as the law is concerned as to validity of conviction, the same may be gone into to sustain or controvert the conviction in a subsequent trial for trespass, and to show that the conviction is one not authorized by statute or law and that it has been made without jurisdiction, or where it manifestly appears that the warrant of commitment is in excess of what the conviction warrants, as where costs are to be levied where the conviction does not award any; See Leary v. Patrick, 15 Ad. & Ell. N. S. 273. Such would seem to be the import of the provisions as to there being a good and valid conviction to sustain the warrant or commitment, and it would be incumbent on the defendant in an action brought against him, to show that there was a good and valid conviction in law upon which the warrant or commitment was made. WARRANT OF COMMITMENT. 233 and and ion, the show law re it IS in are ■any; Where the conviction is not manifestly bad on its face, and where the Justice has jurisdiction to make it, and where the warrant or commitment follows the conviction and is not an excess of it, no objection can be heard that would impeach it on the merits on the trial. In the Province of Ontario and other Provinces there are Acts passed for the protection of Justices and other Officers from vexatious actions, but these Acts are in most part applicable only where the Justice has acted with jurisdic- tion, not where he has had no authority to act — or where having authority to act he has exercised his power maliciously and without probable cause. Ample protection is given by the respective Statutes of of the several Provinces to Justices who act with jurisdic- tion, but who may err in the exercise of same, and the provisions of such Statutes must be well examined before any action is brought against Justices of the Peace in relation to their doings. An appeal to the quarter sessions does not preclude an action. Leader v. Moxon 2 W. Bl. 924. Nor is a party appealing to the sessions thereby con- cluded from afterwards disputing its jurisdiction in the particular case. Lowther v. Radnor, 8 East 113. As the person aggrieved is required to give to the prose- cutor or complainant or to the convicting Justice for him, a notice in writing of such appeal from the conviction or order, within four days after the conviction or order, the Justice should insert all the particulars in the minute of conviction given, as the penalty, the amount thereof and such like as these matters complained of. In cases other than those in which proceedings are to be governed by the Summary Conviction Act, the same ur- gency and particularity may, not be requisite, and the formal conviction may be drawn up at any time before a return of the certiorari, although it could not be drawn uj* in form after the conviction has in any way been acted u|)- on. The minute of the Justice's conviction must be taken 16 S.C.L. 234 SUMMARY CONVICTIONS. as the conviction for the purposes of appeal under the Act. See remarks of Blackburn, J., in Ex parte Johnston, 3 B. & S. 947. As the person aggrieved must give to the prosecutor or complainant, or to the convicting Justice or one of the con- victing Justices, for him, a notice in writing of such appeal \vithin four days after such conviction or order ; the notice must be within four days, thus, if the last of the four days should happen to be Sunday, a notice on the Monday follow- ing would be too late : Beg. v. Middlesex Justices, 7 Jurist 396. A notice of appeal was according to the regular and ordi- nary course of post delivered on a Sunday, and if delivered on Monday there would not have been fourteen days before the first day of the sessions. Held, that the notice of ap- peal was void — fourteen days notice being required : Asjyrcll V. Lancashire Justices, 16 Jurist, 1067 Hoiv and by whom given — Service of The notice is to be given by the party aggrieved, and must be in accordance with the form prescribed by the Act and should state the intention not only to enter but to prosecute, also the appeal. A perf onal signature would seem to be requisite to the validity of notice and to be the intention of the Act. In the case of tlie Queen v. the Justice of Kent 8 L. K., Q. B. 305, a notice of appeal signed in the appellant's name by the clerk to his Attorney with the appellant's authority, was held sufficient, but by the provisions of the Statute under which it was given, the notice of appeal was authorized to be " signed by the person or persons giving the same, or by his, her, or their Attorney on his, her, or their behalf." The notice in form is " Take notice I the undersigned " and seems to contemplate an individual notice signed by each party aggrieved. However by the memorandum to the form of notice — it is said " If this notice be given by several defendants or by an Attorney, it can easily be adopted " — TIME Foil APPEAL. 235 seemingly contemplating that the notice may be by Attorney And that several dofondants may join in the one notice. The service of such notice is well served on the JuHtice if delivered at his dwelling house, though he be not in personally. Rqi.y, N. liidbuj of Yorkshire, Justices 7 Q. B. 164. Besides the necessity of giving the notice required, the person appealing if he does not remain in custody must enter into recognizance, or in eases of orders to pay money must make the necessary deposit as directed by sub-section 3. 33 Vic, c. 27. The consideration of a notice of appeal is merely prelimi- nary to a hearing of the appeal, and if the Court on appeal should decide that the notice is bad, upon objection being taken to it and dismiss the appeal, the Court will, if the decision is erroneous, award a mandamus to enter con- tmuauces and hear. Raj. v. Siurey, Justices 3 D & L. 573. Time for Appeal. If the conviction or order be made more than twelve days before the sittings of the Court to which the appeal "is given, such appeal shall be made to the then next sittings of such Court, but if made within twelve days of the sit- tmgs of such Com-t, then to the second sittings next after such conviction or order. See 33 Vic, c 27 sub-sec 1. The Court on appeal must see that the necessary direc- tions as to appeal have been followed, for it is upon fultilment of the conditions that the appeal can be heard the word of the section 3, Act of 1870 being, after stating conditions-" the Court shall thereupon hear," etc • Proceedings after Appeal— Warrant may issue. See section 70. CHAPTER VI. 32-33 Victoria, Chapter XXXII. An Act respecting the prompt and summary administration of Criminal Justice in certain cases. Assented to 22nd June, 1869. This Act was extended to Manitoba by 37 Vic, c. 39. To Prince Edward Island by 40 Vic, c 4. To British Columbia by 37 Vic, c 42, and to the District of Keewatin by 39 Vic, c 21. The principal matters, to be noticed and observed in proceedings under this Act, are : 1. Who has jurisdiction over the charge to try the same ? The party offending must be charged with offence before a "Competent Magistrate." For meaning of expression "Competent Magistrate" as applied to the Provinces of Nova Scotia and New Bruns- wick. See 37 Vic, c 40, (1874). To British Columbia, or District of Keewatin, or to Prince Edward Island, see 37 Vic, c. 42, Schedule A, and 39 Vic, c. 21 ; also 40 Vic, c. 4. In applying this Act to the District of Keewatin, the jurisdiction of the Competent Magistrate — which expression shall be considered as meaning two Justices of the Peace sitting together, as well as any functionary or tribunal having the power of two Justices of the Peace — shall be absolute without the consent of the part charged. In British Columbia the same provision is made by 37 Vic, c. 42, Schedule. SUMMARY ADMINISTRATION. 2a7 I In Prince Edward Island the same provision is made by 40 Vic, c. 4, Schedule. In Manitoba the expression " Comi)etent Magistrate " shall have the same meaning, and include the like func- tionaries and tribunals as with respect to the Provinces of Quebec and Ontario. See 37 Vic, c 30, s. 3. Such functionaries and tribunals are mentioned in 32-33 Vic, c 36, 8. 8, (1869). 8. What offeniWH the Competent T igistratc h((s jurisdiction to try ? These are larceny — value not exceeding ten dollars. Attempt of larceny from the person, or simple larceny . Aggravated assault. Assault on any female or child made under certain con- ditions. Assault, or obstructing, molesting, or hindering any Magistrate, Bailiff or Constable, or officer of customs, or excise, or other officer in the lawful performance of his duty. Keeping house of ill-fame or disorderly house. Committing misdemeanours under Act, passed in 40th year of Victoria, entitled, " An Act for repression of betting and pool selling " : c 31, s. 3. 3. Under what conditions the Competent Magistrate may deal with offence I These are set forth in section 3 of Act. It will be noticed that the jurisdiction of the Competent Magistrate is absolute in certain cases, and as to certain persons as set forth in sections 15 and 16 of Act, in which cases the consent of party is not necessary to proceeding with trial ; so, also, it is absolute in District of Keewatin, British Columbia and Prince Edward Island. (See Ante.) Where consent is necessary, and not given, then the Competent Magistrate must proceed as in ordinary cases of information under the Act relating to Indictable Offences. See section 8. -r^ 1^ mmm 238 JUVENILE OFFENDERS. The mode of summoning the party and the proceedings on party making defence or pleading guilty, the summon- ing of witnesses, and the sentence on parties convicted and the carrying out of same, and the means of levying the fine imposed, are pointed out in sections of the Act, and are to be specifically followed ; and the principles and law, governing the provisions, are similar to the Act relating to proceedings on Indictable 0£fences, except where express provision is otherwise made. The provisions as to defects and quashing of convictions are also set forth, and the necessary forms of conviction given in Schedule to Act. 32-33 Victoria, Chapter XXXIII. An Act respecting the trial and punishment of juvenile offenders. Assented to June 22nd, 1869. As to the extension of this Act to Manitoba, see 37 Vic, c. 39. To the District of Keewatin, see 39 Vic, c 21. To British Columbia, see 37 Vic, c 42. To Prince Edward Island, see 40 Vic, c 4, where the meaning of the expression, " the Justices " and '* any two or more Justices," is specifically stated. What the expression includes, in the Provinces of Quebec, Ontario and New Brunswick, is stated in the first section of Act. JUVENILE OFFENDERS. — SPEEDY TRIAL. 239 32-33 Victoria, Chapter XXXIV. An Act respecting juvenile offenders within the Province of Q"®^®^- Assented to June 22nd, 1S69. This Act refers to offenders under 16 years, and provides for their detention in a certified Eeformatory School, with provisions for their discharge, and makes provision for the punishment of persons, breaking the Rules of Reformatory Schools, and for the punishment of persons, aiding in the escape of any offender. The application of the Act is confined to the Province of Quebec. 32-33 Victoria, Chapter XXXV. An Act for the more speedy trial in certain cases, of per- sons charged with felonies and misdemeanours in the Provinces of Ontario and Quebec. Assented to June 22, 1869. This Act extended to Manitoba by 88 Vic, c. 54, where the meaning of expression as to Court and Functionaries IS given. The Act is extended to the District of Algoma by 37 Vic c. 41. ' The forms of accusation and records of conviction are given m Schedule to Act. I2Sr JDEJSr. Abettors— Punishable on summary conviction, 124, 192 Abroad — Offences committed, vrhen party may be arrested, 30.. Form of warrant, 90. Absence— Proceedings ^;»: /ar/tf, 121. Accessories — 124, 192. Accomplices— Testimony of, 55. Accused — Caution to, as to statements, 62, 63. Committal or discharge of, remand, 81, 77, 73. Admissibility of statement of, as evidence, 65. Voluntary admissions, evidence, 65. Binding over, to answer charge, 74-79. AcgciTTAL— S^^ dismissal. Adjoining— Counties, arres.^ in, 45. Adjournment— On hearing, if party misled, 48. Adjudication — 129. Admiralty— Jurisdiction, offences within, 30. Admissions— By accused, 65. Affirmance— Of appeal, 139. Affray — Breach of peace, arrest of parties, 15. Assisting officers in cases of, 15. Agent — Information or complaint by, 181. Aiders — Punishable on summary conviction, 124, 19:. Amendment — 35. '■Any Act," OR "Any other Act."— Meaning, 10. Appeal — On summary convictions, 135, 136. Notice of, conditions, 218. Power to amend conditions appealed from, 220. Trial by jury on, 137. Decision to be given on the merits, 138. Costs on abandonment of appeal, 138. Costs on appeal, how recoverable, 140. Proceedings when conviction sustained, 139. Certiorari, when not allowed, 139. 242 INDEX. Appearance — Default of, on summons ; warrant to issue, 29. Waiver of objects by, 184. By counsel or attorney, 182. Apprehension — Of offenders, 10. Who may apprehend, 11. See arrest. Army and Navy — Offences against, 12. Arrest — Without warrant of Justice, 11. In what cases, 11, 13. By private persons, by constables, 13. When and where and how made, 17. What constitutes an, 17. X Persons resisting or escaping, 21. Warrant should be in possession of person arresting, in what cases, 22. Warrant should be shewn if demanded, i8. On fresh pursuit, 16, 45. May be made on Sunday, 34. Assault — Complaint for, by whom to be laid, i8r. Prayer to proceed summarily, 221. Ouster of jurisdiction when bona fide claim of title to land, 213. Attempt to commit Felony — See act relating to indictable ofifences. Attorney — Information or complaint by, 181. Defence allowed by, when, 127, 6S. Averment — On second or subsequent offence, form of, 178. B Backing Warrants — 48. Effect of, as to Magistrate endorsing, 49. Bail — When may be granted, 48, 74. In misdemeanour one Justice may admit to bail, 75. Cases in which Justices cannot bail, 81. By Judge of Superior or County Court after Committal for trial, 85. Recognizance of bail, form, 107. Notice of recognizance to be given, 70. Form of notice to accused and bail, 107. Bailiff — When must shew warrant, 46. Battery — See Assault. Bench Warrant — Issue of, 3a. Bodies Corpohatb — Included in singular number, 10. INDEX. Bona Fide Claim of Title— 213. Boundary of County, etc. — 45. Breach of Peace — Private j-erson interfering, 15. Assisting oflScer, 15. Assisting after breach committed, 16. Breaking open Doors, etc. — For purposes of arrest, 18. When allowable, 19. 243 Caution— To accused .ii indictable offences, 62, 63. Certificate — Of non-appearance to be endorsed on recognizance, 128. Of indictment being found, 31. Of dismissal of information, etc., form, 160. Of Clerk of Peace that costs are not paid, 140. Certiorari — Conviction not to be removed by, 139. Different from appeal, 227. Claim of Right or Title— Ousting jurisdiction, 213. Clerk of Peace— Duty of, in returning convictions, 142. Commitment — Of accused, offence in different jurisdictions. 24. Bail, admitting party to, 32. Of witness for refusing to be sworn or give evidence, 52. Of witness for refusing to enter into recognizance, 72. When issuing warrant of distress would be ruinous. 133. In default of sufficient distress, 134. Warrant of, one Justice may issue, 144. In indictable offences, 74. Competency of Witnesses— Str evidence, witness. Complaint or Information — For what may be made, 23. When must be in writing, 28. Must be under oath, when not, 28, 126. Objections to, not allowed, 34. Must be for one matter only, 126. May be laid in person or by attorney, 126. Negativing exemptions, 130. Time for making, 127. By party threatened, for sureties of the peace, 175. See further — Information. Condition— Negativing of, 121. 244 INDEX. Confession — When may be given in evidence, 65. Consecutive Penalties — 135. Constable — Power to arrest without warrant, See Arrest. Should have warrant in his possession, 41-46. Shewing warrant when required, 46. Duty of, on making arrest, 46, 49. Contempt of uourt — Party refusing to be examined, etc., 52. Power to punish resistance to process, etc., 145. Conviction — Forms referred to in section, 130, 202. Minute of, to be made, 130, 203. To be under seal, 130. Requisites of, 203. Return of, 204. Effect of, if not set aside, 203. Several offences, joint conviction, 196. Appeal from. See Appeal. Copy of Depositions — See Depositions. Coroner — Duties of, 83. Transmitting evidence, 83. Corporate Body — Penalty payable to, 10. Costs — Upon information or complaint, 132. Upon dismissal of information, etc., 13a. Recovery of, 132. On quasi. ing conviction, or affirming, 140. On appeal being abandoned, 138. Enforcing payment of, 140. Of constable, 80. Counsel or Attorney — Appearance by, 67. County or Place — Includes what, 9. County Court Judge — Admission to bail by, 81. Court — When open and when not, an open court, 67. Cross Examination — See Witness. Cumulative Sentence — 217. Custody — When prisoner considered to be in, custody of constable, 48. D Death — Of witness, examination may be used, 57. Defects — In information etc., objections to, waiver of, 34, 120, 184. Defence — By counsel or attorney, 127. Full defence in summary cases, 127. INDKX. Defendant — Name of oftender, 43. Defence by, 127. Entitled to copy of depositions, 82. Deliverance— St-ff Warrant. Depositions — Defendant entitled to copies of, 82. To be taken on oath before granting warrant, 120. How taken in preliminary investigation, 57. If witnesses dead or ill, may be read on trial, when, 57. Detainers, 32, 34. Discharge — Of accused, 72, 81. On recognizance during hearing, 73. Dismissal — If prosecution does not appear, 128. Certificate if non-appearance, 128. Form of, 150. Distance from territory, how measured, 47. Distress, Warrant of — Not to be served, before order first served, 132. Proceedings on, if deficient goods not found, 133. Commitment when distress ruinous, 133. May be issued by one Justice, 144. Forms — See Forms. District, County or Place— Includes what, 9. Division — Territory meaning of, 9. Dwelling House— What comprehended in term, 20. 245 Endorsement — Backing warrant, 48. Escape — Arrest after, on fresh pursuit, 16, 47. Evidence— S£^« Witness. How should be taken in indictable cases, 58.. Statement of accused, 62. At hearing in summary cases, 129. Information negativing exception, 130, 210. On appeals from summary convictions, 137. Who may be bound to give, 68. Competency of witnesses, r44, 52. Admissions and confessions, 65. Examination of Witnesses— S(? Tenants, how ].roperty to be described, 123. Commission of oftence, 194. Penalties, how reco\'erable, 144. Information, 194. Conviction, 195, Offenders, 195, Judge — Of County Court, powers of, to admit to bail, Si. Of Superior Court, 81. J u DOME NT- Form of, in summary proceedings, 12Q. Act: when not judicial but ministerial, 68. Jurisdiction — Of Justices, 1 85. Information when requisite to give, 25. When ousted bv claim of title, 213. When accused, api:>rehended in a diliferent jurisdiction than where offence committed, 48, 74. Justice — Meaning of word, 10. Justices — One may receive information and issue summons, where hearing to be before two or more, 143, 205. One may issue warrant of distn. ss, 144. After hearing matter, to decide, 129. One Justice may compel witness to attend, and issue c ess warrant, 143, 144. Who may act before, or after conviction, 144. Power to bail accused, 74, 75. Duty of, when person wishes to be bailed, 7^. Transmission of evidence by, in order to bail accused, 85. May issue warrants on Sunday, 34. May receive information on Sunday, 34. Backing warrants by, 48, 122. INDEX. 251 200. To take evidence in presence of accused in indictable ufleiices, 56. Procedure on examination by, 56. Persons having the power of two Justices, 83. Disqualifying interest in, 211. Liability of, 26, 37, May exercise discretion in cases of information, i6. Liability — Of Justice when acting in bad faith, 35, 37. Acting without jurisdiction, 26. Non-liability of person who merely makes complaint, 39. Limitation — Of time for laying information or complaint, 127. For penalties against Justices, 142. a where M Magistrate — Powers of two Justices, 145. Powers generally, 17. Mandamus — 214. Married Woman— S.*^ Husband and Wi/c. Binding over to give evidence, 68. Master — Liability of, for acts of servant, 193. Memorandum — Of conviction or order, 130, 203. Minor — Binding over to appear. 68. ]\IlNUTE — Of adjudication in convictions and orde.s, 130, 203. Of orders before being enforced, 132. Misdemeanours — Arrest in case of, 22. ariug to e ess N Name — Of informer, right of defendant to know, 207. Of offender, or if unknown, description, 43. Non-appearan'ce — Of prosecutor, proceedings, 128. Of defendant, 128. Issuing warrant to compel attendance, 123. Transmission of recognizance on, 131. Notice — Of recognizance to be given to the prosecutor and witness, 70. To accused and his bail, 104. Of appeal against a conviction, 21S, 173. 252 INDEX. O Oath— When information, etc., must be under, 34 When otherwise, 114. Examination of witnesses must be under oath, 130. Justices may administer oath or aflftrmation, 130. Objections — To informations, etc., 35, Waiver of, 184, 200. In cases of appeal, 138. Offences — Statement of information, 34. Several and joint, 194, 196. Conviction on, 197. Offenders, Arrest of — Name of, to be siated in warrant, 43. If unknown, to bi described, 43. Open Court — In indictable offences not so, 67. Is so in summary conviction cases, 207. Right of attorney or counsel to attend, 127, 209, 68, 182 Order — Distinction between, and conviction, 213. Minute of, when to be made, 130. Forms of. See forms — of dismissal, 130. Minute of order, when to be served, 132. OtJSTER — Of jurisdiction, 213. OwNER'^Hip— Of property, how may be described in information, etc., 123. Parties — Appearance of, proceedings, 128. Partners — Property of, how described, 123. Party— Aggrieved, body corporate may be, 123. Payment — Release of defendant on, 143. May be made to keeper of prison, 143. Peace — Breach of, sureties for keeping, 175. Penalty — Several, in each offender, 194. Levying of, 133. To whom to be paid in cases of appeal, etc., 140, 143. On Justices, for not making returns, 141. Penitentiary — To be of particular Province, 10. Place — Of commission of oftence, statemert of, 125, 180. Police Magistrate— Powers of, 83, 144. Previous — Conviction, when necessary to be proved, 182. INDEX. Prisoner — Statement of, to be taken by Justice, 62. Procedure on appearing, 73 . Right to cross-examine witnesses, 56. Discharge of. when evidence insufficient, 72-81. Caution to be given to, 62, 63. When may be bailed, 82 . Righc to copies of depositions, 82. Proceedings against, when an indictment found, 31. Warrant of deliverance, on bail found, 81. Detaining of, in custody, 32. Process — Must be legal, 22. Service of. See service. Proviso— If negatived, need not be proved, 130. Property — Ownership, how described, 123. Meaning of term, 9. Restoration of, 40. Public Court— S^^ Open Court. Punishment— When discretionary, 10. * Q Questions— What not allowed. See witness. 253 c, 123. R Recognizance — Binding over prosecutor and witness by, 68. To be subscribed by Justice taking, 70. To be transmitted to proper court, 71, Witness refusing to enter into, 72. Notice of, when to be given, 70, 104. Upon adjournment of time, 125, 128, 130. In cases of distress warrant, 134. On appeal, form of, 173. Of bail instead of remand, 104. Remand — Of accused, 48. When may be by verbal order, 73. Accused may be brought up before expiration of time of, 7^. Warrant of remand, 73, 103. Not to exceed certain time, 73. Reply — "^-bservations in, 129. Residence— Service of process at, 44, 120. Restoration— Of property, 40. Return — Of warrant, of constable to warrant of distress, of conviction, 140, 204. ST 254 INDEX. Return — Copies of returns to be sent to Minister of Finance, 142. To be published by Clerk of Peace, 142, Right — Claim of, ousting jurisdiction. 213. Sea — Offences committed on, 30. Seal — Warrant to be under, 3S. Conviction to be under, 130. What constitutes a seal, 42. Search Warrant — Sec Warrant. Information to obtain, 38. When Justice may grant, 3S. Form of. Sccftrms. How and where may be executed, 38, 45. . Servant — Liability of master as abettor for acts of, 103. Service — Of summons for indictable offences, 44. Of summons to witness, 124, 200. Of, in summary cases, 124, 200. Proof of service of, before issuin-^ a warrant, 124, 200. Of notice of appeal, 234. Of minute of order, 132, 215. Several Defendants — 194. Offences by, 194. Penalties, several, 196, Singular Number — includes several, 10. Statement — Of accused, 62, 63, How to be made, 62, 63. Caution to be given, 62, 63. When not available in evidence, 65. Stipendiary Magistrate — Powers of, 145. Summary Convictions — See Convictions. Act relating to, iig. Duties of Justices in, 119. Forms in, 146. Appeals in cases of, 218. Summons — In indictable cases, 27. In summary conviction cases, 119. Necessity of issue, iig. Proof of service before warrant, 28. Proof of service before proceeding ex parte, 121. When Justice not obliged to issue, 120. Warrant on disobedience to summons, 28. How summons may be served, 44. INDEX. SWMMO.VS Proof of service, 44. Direction of, 29. Sunday — Warrants may issue on, 34. Information receivable on, 34, Arrest may be made on, 34. Sureties — Notice of recognizance to be given to accused, 104. Form of recogniza . e Sec forms. 255 Territorial Division— Meaning of, 9. Time for laying information, etc., 127. " for bringing actions, 142. ■• for giving notice of appeal, 234. Title to Land— Justice has no jurisdiction to try, 213. TRESPAss-Assault, what averment necessary to give jurisdiction to Justice to try, 221. V Variance — Between information and evidence, 34. Between warrant and evidence, 48. Justice may adjourn if variance material, 4S. w Warrant — Form of, in indictable offences, requisites of, 38, 43, 45. Backing of, 48. Form of, when summons disobeyed, 89. Taking objections to, 48. Should be in possession of offi-er at time of execution, 18. To remand prisoner pending adjournmer- , 73. Of deliverance to be issued upon bail being given, Si. Form of, on bail being given, 108. Search warrant when it may be granted and how obtained, 38. How executed, 40, 45. To apprehend when obtainable, 23. When may issue in first instance, 27, 120. How executed, 27. May be granted on Sunday, 34. For offences on High Seas and abroad, 30. To apprehend accused when indicted, 31. Against a witness for disobeying summons, 50. Against witness in first instance, 51. What constable may execute, 120. Summary cases, when may issue, iig. On non-appearance of defendant, 120. Proof of service of summons before warrant issues 120. r'?«; 256 INDEX. Warrant — By whom may be executed, 38. Against witness, 124. To remand a prisoner when apprehended, 128, 153 Of distress upon conviction for a penalty, 161. Upon order for payment of money, 162. Endorsement in backing, 48. IVi.-^istrate endorsing not liable, 49. Of distress, constable's return, 163. Of commitment for want ot distress goods, 163. Of commitment on an order in first instance, 165. Of commitment upon a conviction for a penalty in the first instance, 164. Of distress for costs upon an order for dismissal, -66. Of distress for costs on appeal, i6g. Of commitment in want of distress for costs on appeal, 170. When constable may arrest without warrant, 10, 14. When private persons ma> arrest without, 10-15. To detain a person in custody, 128. For commitment of witness refusing to be swoni or give evidence, 52. 125. To be under hand and seal of Justice issuing it, 38. Direction of, 38, 42. Wife — When cannot give evidence for her husband, 53. Witness — Summons to, 50. Fees to, 51. Compelling attendance of, 50. Commitment for refusing to be sworn or give evidence, 52. Examination of, 56. Warrant may issue in first instance, 51. Competency of, 52, 56 Prosecutor or complainant competent, not having pecuniary interest, 130, 200. Examination of, must be under oath, 57. Not bound to criminate himself, 52. May be committed for refusal to enter into recognizance, 72. Right of accused to cross-examine, 57. Deposition of, when may be used, 58. Examination of, 56, 57. Rules of evidence to be observed on examination of, 58. 59. Privilege of, 52, 56. Husband and wife, 53. Accomplice, 55. Words — Meaning of certain, in criminal law, 9. 9407/4 285 c le first instance, 6. eal, 170. y-t I' give evidence, ince, 52. )ecuniary interest,. izance, 72. of, 58, 59.