IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1.25 ^1^ lis ■ii Hi |2.2 us 1^ 1.4 2.0 I™ 1.6 V] ^ 71 /: o^' Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. HS80 (716) 872-4503 ^.- BLANK FORMS. ■f '■ The following Blank Forms for the use of Magistrates, COmprisiDg every form requisite in the discharge of their multifarious duties, each properly headed so as to prevent the possibility of mistake, have been carefully supervised by Richard Dempsey, Esquire, Barrister-at-Law, and Crown Attorney for the city of Toronto and the United Counties of York and Peel, author of the Magistrate's Hand-Book, &c., &c., and may be relied upon as in exact accordance with the statutory schedules. For the convenience, therefore, of the Justices of these Counties, a supply of all these forms will be kept hereafter at the office of the Clerk of the Peace, where the same can be readily obtained at the ordinary rate. It was at first intended to have incorporated these forms in an addenda to the " Magistrate's Hand-Book," but when it was found that such a course would actually extend that work nearly sixty additional pages, and thereby double the expense of the preparation thereof, it was deemed more advisable to adopt the present arrangement for those who may think proper to avail themselves of the same. Juffi' Under the " Act respecting the duties of Justices of the Peace out of Sessions, in relation to persons charged with Indictable OflFences." — Con. Stats. C, c. 102. Information and Complaint for on Indictable Offence. Warrant to Apprehend a person charged with an Indictable Offence. Summons to a person charged with an Indictable Offence. Warrant trhen the Summons is Disobeyed. Information to obtain a Search Warrant. Search Warrant. Certificate of Indictment being found. i warrant to Apprehend a person Indicted. Warrant of Commitment of a person Indicted. Warrant to Detain a person Indicted, trlio is already in Custody for ano- ther offence. Endorsement in backing a Warrant. Summons to a Witness. Warrant when a Witness has not obeyed a Summons. Warrant for a Witness in the first instance. Warrant of Commitment of a Witness for refusing to be sworn, or to give evidence. DepoHitions of Witnesses. Statement of the Accused. Recognizance to prosecute or give evidence. Condition to prosecute. Condition to prosecute and give evidence. Condition to give evidence. Notice of the said Recognizance to be given to the Prosecutor and Iiis Witnesses. Commitment of a Witness for refusing to enter into the recognizance. Subsequent Order to Discharge the Witness. Warrant Remanding a Prisoner. Recognizance of Bail instead of Remand, on an adjournment of examina- tion. Notice of Recog^nizanoe to be given to the Accused and his Sureties. Certificate of non-appeannce to be Endorsed on the Recognizance. Warrant to convey the Accused before a Justice of the County in which the offeree was committed. Receipt to be given to the Constable by the Justice for the County in which the offence was committed. Recognizance of Bail. Notice of the said Recognizance to be given to the Accused and his Bail. Warrant of Deliverance on bail being given for a Prisoner already Com- mitted. Warrant of Commitment. Gaoler's Receipt to the Constable for the Prisoner, and Justice's Order thereon for the payment of the Constable's expenses in executing the Commitment. Under the " Act respecting the duties of Justices of the Peace out of Sessions, in relation to Summary Convictions and Orders." — Con. Stats. C, c. 103. Summons to the Defendant upon an Information or Complaint. Warrant when the Summons is disobeyed. Warrant in the First Instance. Warrant of Committal for Safe Custody during an adjournment of the hearing. Recognizance for the Appearance of the Defendant when the case is ad- journed, or not at once proceeded with. Notice of such Recognizance to be given to the Defendant and his Sureties. i I I .1- Certificate of non-appearance to be endorsed on the Defendant's Recogni- zance. Bummona to a Witness. Warrant where a Witness has not obeyed a Summons. Warrant for a Witness in the first instance. Commitment of a Witness for refusing to be sworn or give evidence. Wt rrant to Remand a Defendant when Apprehended. Conviction for a Penalty to be levied by Distress, and in defiiult of suffi- cient Distress, by Imprisonment. Conviction for a Penalty, and in default of payment. Imprisonment. Conviction when the Punishment is by Imprisonment, &c. Order for Payment of Money to be levied by Distress, and in default of Distress, Imprisonment. Order for Payment or Money, and in default of Payment, Imprisonment. Order for any other matter where the disobeying of it is punishable with Imprisonment. Order of Dismissal of an Information or Complaint. Certificate of Dismissal. Warrant of Distress upon a Conviction for a Penalty. Warrant of Distress upon an Order for the Payment of Money. Endorsement in Backing a Warrant of Distress. Constable's Return to a Warrant of Distress. Warrant of Commitment for want of Distress. Warrant of Commitment upon a Conviction for a Penalty in the first instance. Warrant of Commitment on an Order in the first instance. Warrant of Distress for Costs upon an Order for Dismissal of an Informa- tion or Complaint. Warrant of Commitment for want of Distress in the last case. Certificate of Clerk of the Peace that the Costs of an Appeal are not paid. Warrant of Distress for Costs of an Appeal against a Conviction or Order Warrant of Commitment for want of Distress in the last case. General Form of Information on Oath. Form of Order of Dismissal of an Information or Complaint. Form of Certificate of Dismissal. General Form of Notice of Appeal against a Conviction. Form of Recognizance to try the Appeal, &c. Form of Notice of such Recognizance to be given to the Defendant (Appel- lant) and his Surety. Complaint by the party threatened for Sureties for the Peace. Form of Recognizance for the Sessions. Form of Commitment in Default of Sureties. ,1:1 i^^^^h^jA^SfX^Aic 4w* -^t di.^ « .xMi MAGISTRATE'S HAND-BOOK. OBSERVATIONS UPON THE DUTIES OF MAGISTRATES, COMPILED BY DESIRE OF THE JUSTICES OP THE PEACE OF THE UNITED COUNTIES OF YORK AND PEEL IN SESSION. INTENDED TO UE BRIEF AND SUCCINCT, AND AT A BIBD's-EYE GLANCE TO ENABLE MAGISTRATES TO ASCERTAIN, WHEN APPLIED TO, PARTICULARLY UPON THE MORE FREQUENT CLASSES OF CRIME, WHETHER THEY CAN, AND IF 80, HOW AND IN WHAT MANNER ACT : AND TO REFER THEM TO THE STATUTES AND AUTHORITIES BEARING UPON THE SUBJECT IN QUESTION FOR, IF NECESSARY, MORE FULL GUIDANCE. BY RICHARD DEMPSEY, Esq., BARRISTER-AT-LAW AND CROWN ATTORNEY FOR THE CITY OF TORONTO AND THE UNITED COUNTIES OF YORK AND PEEL. " Justices of Peack were a class of Persons to whom this Country were under as great obligations, as this or any other nation 18, or ever was, TO ANY Members of its Community." — Court of Queen's Bench, {England,) Rex. V. Borran, 3 B. .j- Aid. •iiio. TORONTO: ROWSELL AND ELLLIS, PRINTERS. 1860. '^•\, ta. pi C5» MEANING OF ABBREVIATIONS. 4 & 6 v., c. 27, 8. 27. Con. Stats. C, c. 102, p. 1043. Con. Stats. U. C. 4 & 6 Victoria, chapter 27, section 27. Consolidated Statutes of Canada, chapter 102, page 1043. Consolidated Statutes of Upper Canada. i| Note. — Where several statutes or other authorities are referred to after each subject, they need not all be consulted. They are all thus quoted for the convenience of the Justice, in the expectation of his having one or other of the authorities : thus, where reference is made to ** 13 & 14 V., c. 54, Con. Stats. C, c. 114," either of the t\Y0 within reach of the Justice con- tains the whole (and the same) law upon the subject. TouoNTO, March, 1800. We have carefully perused the little work compiled by Richard Dempsey, of Toronto, Esquire, Crown Attorney for the City of Toronto and the United Counties of York and Peel, intituled " Magistrate's Hand-Book," and nan safely recommend the same, as a correct compilation and useful treatise, and one likely to be of vast convenience and usefulness to the Magistracy generally. S. B. HARRISON, Chairman Quarter tSesaions, York .% : >i» U »By*t( ;fa T PREFACE. t Although this little volume was originally intended simply as a modernization of a small pamphlet of some six pages, published in 1844, yet the author having once entered upon the work, found himself almost irresistibly drawn into a longer detail. As it is, there are doubtless other offences cognizable by Magistrates, summarily or otherwise, than those herein enumerated, but the more particular mention of which would render the volume too cumbersome. It is expected, however, that all those matters of which Magi- strates are called upon more usually to treat are hot omitted. All others will be readily found under their proper headings, either in the Consolidated Statutes of Canada, or the Con- solidated Statutes of Upper Canada. Of the great practical utility that this may prove to Jus- tices on the Commission, Reeves, and Deputy-Reeves through- out the country, the author has tliought it unnecessary to seek any further endorsations than those (although local it may be, in their functions) of the Honourable Samuel Bealey Harrison, Judge and Chairman of the Quarter Ses- sions of the United Counties of York and Peel for the past twelve years, and heretofore a legal author of note ; and of George Gurnett, Esquire, J. P., Clerk of the Peace of the same connties, since the year 1851 Police Magistrate of the city of Toronto, and for over a quarter of a century actively and energetically engaged in every phase of a Magistrate's duty in this country. The writer perhaps should also say that he himself has vi PREFACE. 1^ I had an intimate acquaintance with Magisterial functions for a period of over nine years. ■ ' ' ' The question has been asked of the compiler, Why was not there a more minute Index added ? The reply to this is, that the work itself is to a certain extent in the nature of an Index, and that any further Index to this Index would have in a measure defeated the object originally contem- plated. This object was to render the whole of the topics embraced as familiar as possible to the, as yet perhaps, unpractised Magistrate, by the necessity, for a time at all events, of perhaps having to exercise a little research over the contents relating to the particular subject, to find the exact point he is in quest of. The very great and various powers vested in Justices of the Peace, must, it is presumed, render every attempt to facilitate to them the execution of so arduous and important an office acceptable. If the following pages tend even in the slightest manner toward such a consummation, it will be a source of great gra- tification to the AUTHOR. A MAGISTRATE'S HAND-BOOK. Magistrates have jurisdiction in the first instance over all offences against the law, from the highest to the lowest classes of crime ; and it is the duty of a Magistrate to take cognizance of all such offences com- mitted within his division. These offences are divisible into two general classes, viz. : Firstly^ Those over which the law gives the Ma- gistrate summary jurisdiction, and, Secondly, Those which the law requires to be sent to a higher tribunal for final trial. SUMMARY JURISDICTION. Offences disposable of summarily by one or more Magistrates are, amongst others, — Assaults (a) and Batteries {h). — 4 & 5 V. c. 27, s. f (a) An assault is an attempt to commit a forcible crime against the person of another, such as an attempt to commit a battery, murder, rob- bery, rape, &c. ; striking at the person of another, even holding up the fist at him in a threatening or insulting manner ; or with such other cir- cumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon when he is within reach of it (1 East P. C. 400) ; striking at another with a cane, stick or fist, although the party striking misses his aim (2 Roll. Abr. 545 1. 45) ; drawing a sword or bayonet, or throwing a bottle or glass with intent to wound or strike ; presenting a gun at a man who is within the distance to which the gun will carry ; point- ing a pitch-fork at him when within reach of it ; or any other act indi- cating an intention to use violence against the person of another, is an assault. — 1 Hawk c. 62, s. 1. It is an assault to point a loaded pistol at any one ; but not an assault to point at another a pistol which is proved not to be so loaded as to be able to be discharged. — James's Case, 1 C. & K. 530. Although to conatituie au assault there must be a present ability to inflict an injury, yet if a man is advancing in a threatening attitude to strike another, so that the 8 magistrate's hand-book. .^1 Ht I i 27, Con. Stats. C, c. 91, ss. 37, 38, pp. 959, 960 ; Keele's Prov. Jus., 4th Ed. p. 60 {one or more Magis- trates). ((?.) Malicious Injuries done to property with intent to steal, i. e, : Stealing, cutting, breaking, rooting up, or otherwise destroying or damaging with intent to steal, any tree, sapling, shrub or underwood, wheresoever growing, of value of 20 cents at least. — 4 & 5 V., c. 25, s. 31, Con. Stats. C, c. 92, s. 36, p. 969. {one or more Magistrates.) Stealing, cutting, breaking or throwing down with intent to steal, any live or dead fence, or any wooden post, pale or rail, set up or used as a fence, or any stile or gate, or any part thereof. — 4 & 5 V., c. 25, s. 32, Con. Stats. C, c. 92, s. 37, p. 969. {one or more Magistrates.) Unlawful possession of trees, fences, &c., of 40 cents value, found under search warrant. — 4 & 5 V., c. 25, s. blow would almost immediately reach him if he were not stopped, and he is stopped, this is an assault. — Stephens v. Myers, 4 C. & P. 349. So there may be an assault by exposing a child of tender years, or a person under the control and dominion of the party, to the inclemency of the weather. — Ridley's Case, 2 Camp. 650 ; Marsh's Case, 1 C. & K. 49G. If a man strike at another, but at such a distance that it cannot possibly touch him, it is no assault. — Ros. Cr. Ev. 524. (6) When an injury is actually inllicted it amounts to a battery, which includes an assault. A battery seems to be, when any injury whatsoever, be it never so small, is actually done to the person of a man, in an angry, or revengeful, or rude, or violent manner; as by spitting in his face, or throwing water on him; or any way touching him in anger, or violently jostling him out of the way ; push- ing another man against him ; holding him by the arm ; striking a horse upon which he is riding, whereby he is thrown, or the like. The injury need not be effected directly by the hand of the party : thus there may be an assault by encouraging a dog to bite ; by riding over a pf ! son with a'horse ; or by wilfully and violentlyjdriving a cart, &c., against the cai-riage of another person, and thereby causing bodily injury to the persons travelling in it. If a man strike at another with a cane or fist, or throw a bottle at him, or the like, if he miss him it is an assault ; if he hit him it is a battery. — Roscoe Cr. Ev. 280 ; Arch. Cr. Pleading 524. (c) In cases of assault and battery, observe the fine must not exceed $20.00, including the costs. AVhen desiring therefore to impose the highest penalty, first ascertain the amount of costs ; then impose a fine which, together with the costs, will not exceed $20.00. t M s. magistrate's hand-book. 33, Con. Stats. C, c. 92, s. 38, p. 970. (One or more Magistrates.) Bi;- ' ag, destroying or damaging, with intent to steals any i> e3, plants, fruits or vegetables, in gardens, &c., greenhouses or hothouses, &c. — 4 & 5 V., c. 25, s. 34, Con. Stats. C, c. 92, s. 39, p. 970. [One or more Magistrates.) Stealing, destroying or damaging, with intent to steal, any cultivated root or plant used as food for man or beast, or for medicine, or for distilling or dyeing, &c., in any place not being a garden. — 4 & 5 V., c. 25, s. 35, Con. Stats. C, c. 92, s. 40, p. 970. {One or more Magistrates.) Malicious Injuries to Property {i. e., wanton or malicious mischief, but without the intent to steal,) i. e. : Maliciously destroying or damaging any tree, sapling, shrub or underwood, wheresoever growing, of value of 20 cents.— 4''& 5 V., c. 26, s. 20, Con. Stats. C, c. 93, s. 25, p. 985. {One or more Magistrates.) Maliciously destroying or damaging with intent to destroy any plant, root, fruit or vegetable in any garden, &c.— 4 & 5 v., c. 26, s. 21, Con. Stats. C, c. 93, s. 26, p. 985. {One or more Magistrates,) Maliciously throwing down and destroying any fence, wall, stile, or gate. — 4 & 5 V., c. 26, s. 23, Con. Stats. C, c. 93, p. 985. {One or more Magistrates.) Maliciously damaging any other property not herein- before specially mentioned. — 4 & 5 V., c. 26, s. 24, Con. Stats. C, c. 93, s. 28, p. 986. {One or more Ma- gistrates.) Animals, (or any poultry, dogs, or domestic animal or bird,) Cruelty to. — 20 V., c. 31, Con. Stats. C, c. 96, p. 999. {One or more Magistrates.) Apprentices and Minors, (law respecting). — 14 & 15 v., 0. 11, ss. 6 & seq., Con. Stats. U. C, c. 76, pp. 802 &. seq. {One or more Magistrates.) B 9 MAGISTRATE S HAND-BOOK. Common Schools.— Con. Stats. U. C, c. 64, ss. 138, 139, 140, p. 767. S. 138. — If any trustee of a common school know- ingly signs a false report, or if any teacher of a com- mon school keeps a false school register, or makes a false return, with the view of obtaining a larger sum than the just proportion of school moneys coming to such common school, such trustee or toucher shall, for each offence, forfeit to the Common School Fund of the township, the sum of twenty dollars, for Avhich any person whatever may prosecute him before a Justice o-f the Peace, and for which he may be convicted on the oath of one credible witness other than the prosecutor, and if upon conviction the penalty is not forthwith paid, the same shall, under the warrant of such Justice, be levied with costs by distress and sale of the goods and chattels of the offender, and such penalty when so paid or collected, shall by such Justice be paid over to the said Common School Fund ; or the said offender may bo prosecuted and punished for the misdemeanor. — 18 & 14 v., c. 48, s. 13. S. 139. — Any person who wilfully disturbs, interrupts, or disquiets the proceedings of any school meeting au- thorised to be held by this act, or any school established and conducted under its authority, or wilfully interrupts or disquiets any grammar, common, or other public school, by rude or indecent behaviour, or by making a noise, either within the place where such school is kept or held, or so near thereto as to disturb the order or exercises of such schools, shall for each offence, on con- viction thereof before a Justice of the I'eace, on the oath of one credible witness, forfeit and pay for common school purposes, to the school section, city, town, or vil- lage, within which the offence was committed, such sum, not exceeding twenty dollars, together with the costs of the conviction, as the said Justice may think fit ; or the offender may be indicted and punished for any of the offences hereinbefore mentioned as a misdemeanor. — 13 & 14 v., c. 48, s. 46 ; 16 V., c. 185, s. 19. I MAGISTRATE S HAND-BOOK. S. 140. — Unless it is in this act otherwise provided, all fines, penalties, and forfeitures recoverable by sum- mary proceeding, may be sued for, recovered and en- forced, with costs, by and before any Justice of the Peace having jurisdiction within the school section, city, town, or village in which such fine or penalty has been incurred, and if any such fine or penalty and costs be not forthwith paid, the same shall, by and under the warrant of the convicting Justice, be enforced, levied and collected with costs by distress and sale of the goods and chattels of the olfender, and shall be by such Justice paid over to the school treasurer of the school section, city, tosvn, or village, or other party entitled thereto, and in default of such distress, such Justice shall by his warrant cause the offender to be imprisoned for any time not exceeding thirty days, unless the fine and costs and the reasonable expenses of endeavouring to collect the same bo sooner paid. — 16 V., c. 185, s. 19. 11 1 '.» Division Courts. — Con. Stats. U. C, c. 19, ss. 183, 184, p. 168, 169. S. 183. — Every bailiflf shall exercise the authority of a constable during the actual holding of the court of which he is a bailiff with full power to prevent breaches of the peace, riots or disturbances within the court-room or building in which the court is held, or in the public streets, squares, or other places within the hearing of the court, and may, with or without warrant, arrest all par- ties offending against the meaning of this clause, and forthwith bring such offenders before the nearest Justice of the Peace, or any other judicial ofiicer having power to investigate the matter or to adjudicate thereupon. — 13 & 14 v., c. 53, s. 13. S. 184. — If any officer or bailiff (or his deputy or as- sistant) bo assaulted while in the execution of his duty, or if any rescue be made or attempted to be made of any property seiiced under a process of the court, the person so ofiending shall be liable to a fine not exceeding twenty i 12 magistrate's hand-book. (lollars, to be recovered by order of the court, or before a Justice of the Peace of the county or city, and to be imprispned for any term not exceeding three months ; and the bailiff of the court, or any peace officer, may in any such case take the offender into custody, (with or without warrant,) and bring him before such court or Justice accordingly. — 13 & 14 V., c. 53, s. 100. Dog, Beast, or Bird, (stealing of). — Is not a felony, but is punishable summarily. — 4 & 5 V., c. 25, s. 30, Con. Stats. C, c. 92, s. 33, p. 968. {One or more Magistrates.) Dog, Beast, or Bird. — Killing of instantaneously, by shooting or otherwise. It is doubtful whether the of- fence could be proceeded against as for " Cruelty to Animals." But the Magistrate in such a case might probably adjudicate under s. 24 of 4 & 5 V., c. 26, Con. Stats. C, c. 93, s. 28, p. 986 : " If any person wil- fully or maliciously commits any damage, injury, or spoil, upon any real or personal property, either of a public or private nature, for which no remedy is hereinbefore pro- vided," &c. There is no doubt that a "dog" is "pro- perty" of such a nature as to be the subject of an action at law for damages commensurate with his value against a person illegally destroying him. So it may be said also of any other beast, or bird, (such as tame pigeons,) ordinarily kept in a state of confinement, not being the subject of larceny at common law. Fisheries and Fishing — Law respecting. — 22. V., c. 86, Con. Stats. C, c. 62, p. 704 & seq. {One or more Magistrates, ibid. s. 37, p. 709.) Game Laws of Upper Canada. — 19 V., c. 94, Con. Stats. U. C, c. 61, p. 701 ; Keele, 4th Ed. p. 356. {One or more Magistrates.) i magistrate's hand-book. Gunpowder — Law respecting — Its seizure or forfeit- ure under certain circumstances. — 10 & 11 V., c. 4, s. 12 & seq., Con. Stats. C, c. 93, s. 34 & seq., p. 987. Also see Con. Stats. U. C, c. 54, pp. 601, 612, giving power to municipalities of cities, towns incorporated, or police villages, to make bye-laws regulating care of. Hawkers and Pedlars. — By the " Municipal Insti- tutions" Act, Con. Stats. U. C, c. 54, s. 284, p. 596, the council of any county, city, or town, may pass by- laws regulating and governing. Under this the United Counties of York and Peel have acted by bye-law, im- posing a penalty of $40.00 for contravention thereof. {One or more Magistrates.) Indecency, Immorality, or Grossly Insulting Language in Highways and Public Places — For Preventing. — By the Municipal Institutions' Act, 22 v., c. 54, s. 282, Con. Stats. U. C, c. 54, p. 595, " The council of every county, city, or town, may pass by-laws for prevention of. (Under this the United Counties of York and Peel have acted by passage of by- law No. 69.) {One or more Magistrates.) Juvenile Offenders — Act respecting the summary trial and punishment of under age of 16 years in matter of simple larceny, &c. — Two or more Justices must de- termine. Any one Justice may initiate proceedings. — 20 v., c. 9, Con. Stats. C, c. 106, p. 1148. Landlord and Tenant. — Fraudulent removal of goodsj Sfc, By the 11 G. 2, c. 19, s. 1. — If any tenant for life, years, at will, suiFerance, or otherwise, shall fraudulently, or clandestinely, convey off the premises his goods or chattels, to prevent the landlord from dis- training, such landlord, or any person by him lawfully empowered, may, in thirty days next after such con- veying away, seize the same, wherever they shall be 18 14 MAGISTRATE S HAND-BOOK. 11 found, and dispose of them in such manner as if they had been distrained on the premises. Sec. 2. — But no landlord shall distrain any goods sold bond fidcj and for a valuable consideration, before such seizure made, to any person not privy to such fraud. Sec. 3. — And if any tenant shall so fraudulently remove and convey away his goods or chattels, or if any person or persons shall wilfully and knowingly aid or assist him in such fraudulent conveying away or carrying off of any part of his goods or chattels, or in con- cealing the same, any person so offending shall forfeit to the landlord double the value of such goods, to be recovered in any court of record. Sec. 4. — But if the goods and chattels so fraudulently carried off or con- cealed shall not exceed the value of <£50, the landlord, or his agent, may exhibit a complaint, in writing, before tiuo justices of the peace of the same county or division, residing near the place where such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact, and all proper wit- nesses, upon oath, (or if a Quaker, upon affirmation,) and in a summary way determine whether such person or per- sons be guilty of the offence with which ho or they are charged ; and to enquire in like manner of the value of such goods and chattels, and upon full proof of the offence, by order under their hands and seals, the said justices shall adjudge the offender or offenders to paj' double the value of the said goods and chattels to such landlord, his bailiff, servant, or agent, at such time as the said justices shall appoint ; and if the offender or offenders, having notice of such order, shall refuse or neglect so to do, they shall, by their warrant, levy the same by distress ; and for want of such distress, may commit the offender or offenders to the house of correc- tion, there to be kept to hard labour, without bail or mainprise, lOr tue spoce oi six moniiis, unless tne ruoiiey 1 magistrate's hand-book. 16 V jey so ordered to bo paid as atbresaid shall be sooner satis- fied. Sec. 5. — Persons aggrieved by order of such Justices may appeal to the next general or quarter ses- sions, who may give costs to either party. Sec. 6. — And where the party appealing shall enter into recogni- zance, with ono or two sureties, in double the sum so ordered to be paid, with condition to appear at such sessions, the order of the Justices shall not be executed against him in the mean time. Sec. 7. — Where any goods or chattels, fraudulently or clandestinely conveyed or carried away, shall be put, placed, or kept in any house, barn, stable, out-house, yard, close, or place locked up, fastened, or otherwise secured, so as to pre- vent such goods or chattels from being taken and seized as a distress for arrears of rent, it shall be lawful for the landlord, or his steward, bailiff, receiver, or other per- son or persons empowered, to take and seize, as a dis- tress for rent, such goods and chattels (first calling to his assistance the constable, headborough, or other peace ofiicer of the district, &c.) ; and in case of a dwelling-house, ( oath being first made before a Justice of the Peace, of a reasonable ground to suspect that such goods or chattels are therein,) in the day time, to break open and enter into such house, barn, stable, out- house, yard, close, or place, and to take and seize such goods and chattels for the said arrears of rent, as he might have done if they had been in any open place, (a) Costs of distresses f 01' small rents and penalties. — By the 1 v., c. 16, s. 1 ; Con. Stats. U. C, c. 123, p. 982, no person whatsoever making any distress either for rent or for any penalty imposed by the laws of this province, when the sum demanded shall not exceed the sum of $80 for and in respect of such rent or penalty, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of (a) It appears that in order to justify proceedings under this statute, the removal must have taken place after the rent became due. — Wood- fall, p 327, and cases cited. "•- s.*'>nw»wp"»!»"wi 16 MAGISTRATE J HAND-BOOK. Buch distress, or for carrying the same into effect, shall have, take, or receive, out of the produce of the goods or chattels distrained upon and sold, or from the tenant or other person distrained, or from the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein, than such as are fixed and set forth in the schedule annexed ; and no person shall make any charge for any thing mentioned in the schedule not really done. Sec. 2. — Any person offend- ing herein may be summoned by any one Justice upon the complaint of the party aggrieved ; and if it shall appear to such Justice that the person or persons com- plained of shall have levied, taken, or received, or had other and greater costs and charges than mentioned in the schedule, or made any charge for any thing mention- ed in the schedule not really done, such Justice shall order and adjudge treble the amount of the moneys so unlawfully taken to be paid, by the person or persons so having acted, to the complainant, together with full costs ; and in case of non-payment such Justice shall issue his warrant to levy the same by distress and sale of the goods and chattels of the offender, and in case of insufficient distress such Justice shall by warrant under his hand commit the party to the common gaol, there to remain until such order or judgment be satisfied. Sec. 3 — Such Justice may summon and examine wit- nesses on oath touching such complaint, or the defence against it ; and in case of non-attendance, without lawful excuse, or refusal to be examined, such person shall forfeit a sum not exceeding $8, to be enforced by distress or commitment in like manner as aforesaid, except as regards the form of the order, as hereinafter provided. Sec. 4. — Any party preferring an unfounded complaint shall be adjudged to pay costs not exceeding $4 to the defendant, to be enforced in manner aforesaid. Provided, always, that no order or judgment be made against the landlord, unless such landlord shall have maoistrate's hand-book. XT, jhall oods nant from costs • any fixed erson a the ffend- upon shall com- )r had aed in sntion- 5 shall leys so ions so th full e shall nd sale in case varrant ►n gaol, atisfied. ne wit- defence ■without person reed by "oresaid, ■einafter founded cceeding foresaid, be made all have personally levied such distress ; and provided,, further^ that no person aggrieved by any such distress, or any proceedings had in the course thereof, or by any costs or charges levied in respect of the same, shall be barred from any legal remedy, excepting so far as any com- plaint to be preferred by this act shall have been determined, and such order and judgment may be given in evidence under the plea of the general issue. Sec. 5. — Such orders and judgments on such complaints shall bo made in the form in the schedule annexed, and may be proved before any court by proof of the signature of the justice, and such orders as regards witnesses, shall be made in such form as to such justice shall seem fit and convenient. Sec. 6. — Every broker, constable, bailiff, or other person who shall make and levy any distress, shall give a copy of his charges, and of all the costs and charges of any distress whatsoever signed by him to the person or persons on whose goods and chat- tels any distress shall be levied, although the rent or penalty demanded shall exceed ^80. Schedule. — Form of the Order and Judgment of the Justice before whom complaint is preferred when the Order and Judgment is for the complaint. — In the matter of complaint of A.B. against CD. for the breach of the provisions of the Consolidated Statute for Upper Canada, entitled " An Act respecting the costs of levy- ing distress for small rents and penalties, ' I, E. F., a Justice of the Peace for the do order and adjudge, that the said CD. shall pay to A.B. the sum of , as a compensation and satisfaction for unlawful charges and costs levied and taken from the said A.B. under a dis- tress for (as the case may be,) and the further sum of for costs in this complaint. (Signed) E. F. Form of the Order and Judgment of the Justice when he dismisses the complaint as unfounded-, with or with- (( ! ! 18 maoibtrate's hand-book. oui "<»#/•, a» the case may he. — In the matter of com- ♦ Mnt of A B against CD. for the breach of the pro- >,jnoDB of the <' >riiio]idated Statute for Upper Canada, entfirted, "An Act, &c., Us last above,) 'I, E.F., a jus- tice of the peace in anii f r the , do order and ad- judge, tha^ the complaint of the said A.B. is unfounded, (if costs are given,) and I do further order and adjudge, that the said A.B. sh*^^ pay unto'the said CD. the sum of . (Signed) E.F. Schedule of Oo8t» and Charges on Distresses for small Rents and Penalties. — Levying distresses under Man keeping possession, per diera 75 cents. Appraisement, whether by one appraiser or more 2 cents in the dollar on the value of the goods. If any printed advertisement : not to exceed in all $1. Catalogues, sale and commission, and delivery of goods, 5 cents in the dollar on the net produce of the sale. By 4 & 5 v., ».'. 25, s. 37, the stealing of any chattel or fixture by the tenant is made felony. Licenses, Shop and Tavern — Law respecting and regulating. — See Municipal Institutions, Con. Stats. U. C, c. 54, pp. 583, 588. Under this act — Penalty for not exhibiting over door of tavern the words, "Licensed to sell," &c. {One or more Magis- trates.) S. 251, p. 583. Penalties incurred ^^y persons illegally • ■ ci' inr gpirit- ous liquors. {Two or more Magistrat > ' »" . 2i' , p. 585. Selling intoxicating liquors at certain prohibited times. {One or more Magistrates.) Ss. 254, 255, 256, pp. 585, 586. By S: 257, p. 586 — One-half of penalty goes to infor- \a^.'i , other half to the treasurer of municipality Avherc j,!ace comphii led of situate. i 5 maoistratb's hand-book. 19 any and ts. U. times. ). 585, infor- where 3 Proceedings against keepers of disorderly inns. {Reeve of a township or village with any one Justice.) S. 204, p. 588. Mastru and Servant or Labourbk, and Mastrk AND JouRNEYM KN OR Skj! t kd LABOURER — Law respect- ing.— 10 & 11 v., c. 23; 18 v., ^^ 136; all in Con. Stats. U. C, c. 75, p. 79^. {One ormore Mitgistrates.) [n) Petty Trespasses — To land by person entering or allowing his cattle to enter on the land of another. — 22 v., c. 98, Con. Stats. U. C, c. 105, p. 947. (One or more Magistrates.) Religious Worship — Disturbing Persons assembled for.— 4 & 5 v., c. 27, ss. 31, 32, Con. Stats. C, c. 92, s. 18, p. 964. {One or more Magistrates.) Shipwrecked Good3 — Unlawfully possesHing or of- fering for sale.— 4 & 5 V., c. 25, ss. 23, 24, C^n. Stats. C., c. 92,88. 30, 31, p. 968. {One or more Magistrates.) Strychnine and other Poisons — Act respecting the sale of.— 12 V., c. 60, Con. Stats. C, c. 98, pp. 1007 1008. {One or more Magistrates.) Travelling on Public Highways — Drunken Drivers — Racing, Swearing, &c. — Act respecting. — 18 Y., c. 138, Con. Stats. U. C, c. 56, p. 687 & seq. {On- or more Magistrates) Weapons — Carrying certain, prohibited. — No person (a) Magistrates are recommended not to entertain any complaint i\s for wages, where the arrangement between the parties is by the job ir contract or savours of such, as for instance, cutting wood by the cor J, splitting rails at so much per 100, working threshing machines, paint- ing, itc, by the job, instead of at so much per day. The relation of master and servant, and the right to wages as such, must exist, h.. cases not of this nature the parties must resort to tlie ordinary Civil Courts for redress. In these cases for non-payment of waget, in the event of nothing being realised from the master under distress war- rant, imvrijonment cannot be ordered // ! I I 20 magistrate's hand-book. shall carry about his person any bowie-knife, dagger or dirk, iron knuckles, skull crackers, slung shot, or other weapon of a like character, or sell or expose the same for sale, under a penalty of not more than $40 nor less than $10, or in default imprisonment for not exceeding 30 days.— 22 V., c. 20, Con. Stats. C, c. 91, ss. 9, 10, 11, 12, p. 954. There is an impression that prosecutions under the above statute can be dealt with by an ordinary Jus- tice of the Peace. By a perusal, however, of the above statute and statute 20 V., c. 27, Con. Stats. C, c. 105, p. 1139, it will be found that such is not the case. By s. 10 of the first mentioned statute, charges under that act are to be dealt with pursuant to the pro- visions of the latter act. By this latter act summary power is only given in Upper Canada to Recorders and Police Magistrates of cities. By s. 18, p. 1143, indeed, a Magistrate may entertain a charge, but for the pur- pose only of remanding for disposal before the Recorder or Police Magistrate of the nearest city. Weights and Measures — Acts respecting. — Con. Stats. C, c. 53, p. 642 ; 12 V., c. 85, or Con. Stats. U. C, c. 58, p. 694. Penalties under these acts recover- able before ani/ Justice, &c. — S. 5 of 12 V., s. 21 of Con. Stats. U. C, c. 58, p. 697. INDICTABLE OFFENCES. The offences of a higher class over which Magistrates have no summary jurisdiction, but which they are re- quired to refer to a higher tribunal for final adjudication i are more generallj, amongst others, Firstly — FELONIES. A. Arson, assault with intent to commit murder ; attempt MAGISTRATE S HAND-BOOK. 21 to procure abortion ; assault with intent to rob ; abusing infants under 10 years of age ; attempts to commit crimes. B. Bailees fraudulently taking or converting property is larceny ; bestiality, bigamy, burglary, (a) C. Children under ten years of age, decoying or stealing, or harboring when stolen, &c. ; cattle, maiming, &c. ; coin, false and counterfeit, making, uttering or attempt- ing to utter ; compounding felony ; corruptly taking re- wards, &c. ; maliciously demolishing or beginning to demolish any church or other building ; cattle stealing. D. Destroying hop-binds, &c. ; demanding money or goods, &c., by threatening letters, &c. ; demanding money or goods, &c., by menaces and threats with intent to steal, &c. E. Embezzlement by clerks, servants, trustees, &c., is by statute declared a larceny, therefore a felony ; malicious injury by explosive substances, or manufacturing or pos- sessing same with illegal intent. F. Forgery, uttering forged paper ; falsely and deceit- fully personating another person ; falsely accusing or threatening to accuse to extort property, &c. H. Horse-stealing, &c. X. Killing horses, cattle, &c., with intent to steal carcase, skin, &c. L. Larceny, whatever the value of the property stolen, the offence is deemed of the same nature ; letters, post (a) Burglary consists in breaking and entering into a house to com- mit a felony, or being therein and committing a felony, in either case breaking out between 9 at night and G next morning. This is a capital offence when any person in the house is assaulted, beaten or woanded by the burglar. ff \ t i 1 ;• I 11 i 22 magistrate's hand-book. letters, aud post office offences and penalties relating to, felony or misdemeanor according to nature of offence. M. Murder, manslaughter, maliciously shooting at or at- tempting to shoot, or stabbing, cutting or wounding any person with intent to maim, disfigure, disable or do some grievously bodily harm. P. Administering or attempting to administer poison with intent to murder. 11. Rape, robbery, (a) stealing railway passage tickets, maliciously injuring or obstructing railways, malici- ously throwing any thing against railway carriage, &c. ; receiving stolen goods ; rescue or attempt to rescue persons convicted of murder (capital offence) ; rioters to the number of 12 or more remaining together for one hour after proclamation made by Justice to disperse, [b) S. Stealing steamboat passage ticket ; stealing in a dwel- ling house with menaces, &c. ; sending threatening let- ters, &c. Secondly — misdemeanors. Perjury, conspiracy, &c. (c) ; concealing the birth of children ; assault with intent to commit rape ; ab- duction of females under 16 ; assaulting persons; ap- prehending offenders in the night; obtaining goods, (a) Robbery differs from larceny in this, that it consists in the felo- nious and forcible taking from the person of another, or in his presence against his will, of any property to any value, by violence or putting him in bodily fear. It is a capital offence when attended with stabbing, cutting or wounding. — 4 & 5 V., c. 25, s. G. (6) 3 W. IV., c. 3, s. 13— The Riot Act : " Our Sovereign the Lady the Queen chargeth and commandeth all persons being assembled im- mediately to disperse themselves, and peaceably to depart to their habitations or their lawful business, upon the pains contained in the act relating to high treason, to tumults and riotous assemblies, and to other offences. God save the Queen." — Con. Stats. U. C, c. 97, p. 981 ; Keele, 4th Ed. 787. (c) Conspiracy is a combination of two or more persons to injure a third person, or to injure and prejudice the community, such as a con- spiracy to raise the rate of wages, &c. r magistrate's hand-book. 23 ing to, Qce. or at- ag any some poison tickets, malici- ;e, &c. ; rescue oters to for one jrse. [h) a dwel- ing let- le birth )e ; ab- >ns; ap- goods, the felo- presence r putting stabbing, the Lady nbled im- to their ed in the B8, and to c. 97, p. injure a as a con- moneys, &c., under false pretences ; obtaining the signature of any person to a bill of exchange, pro- missory note or valueble security under false pre- tences ; riots ; assaults upon officers in the discharge of their duties, or to prevent arrest ; forcible entry or de- tainer ; and assaults and batteries of so aggravated a character as to require a greater punishment than a ma- gistrate has power to inflict. Offences and penalties relating to post office and post letters, misdemeanor or felony according to nature of offence. PROCEEDINGS BEFORE THE MAGISTRATES. In all indictable offences it is the duty of the Magis- trate to send to the Court of Quarter Sessions, or to the Assizes, by committing the accused for trial, or admit- ting him to bail, as the case may require. In all cases the first official step to be taken by the First official Magistrate is to receive an information upon oath fromLnby^.p! a credible person that an offence has been committed, m^°e°inanV and stating as near as may be the nature of the offence, the person against whom, and the time when, and the place where the said offence was perpetrated, and nam- ing (if known) the person or persons who committed, or who are suspected to have committed such offence. Upon receiving this information the Magistrate should second step, ,.,.,. 1 • 1 iRsuing of immediately issue his warrant or summons to bring the wamnt or J , / , . ° Summons. accused beiore him. In all cases of treason, felony, or other indictable misdemeanor or offences a warrant should be issued. 16 v., c. 179, s. 1 ; Con. Sts. C. c. 102, s. 1., p. 1043. In all cases over which the law gives the Magistrate summary jurisdiction a summons should issue in the first instance. 16 V., c. 178, s. 1 ; Con. Sts. C. c. 103, s. 1, p. 1083. To bo followed in case of summons not being obeyed by a warrant. — lb. s. 2 ; lb. s. 6. — Or Jus- tice may proceed ex parte. — lb s. 2 ; lb. s. 7. ! 24 MAGISTBATES HAND-BOOK. and pTOMof- When the accused appears before the bench the ingB thereat, accuscr and his witnesses should also be present. The information should be read to the accused ; and unless he voluntarily admits the charge, the Magistrate is to swear and examine — First. The complainant and his witnesses. Secondly. The witnesses for the accused, taking the whole of the evidence down in writing as nearly as possible in the words of, and when read over, to be signed by, the witnesses, as also by the acting Justice or Justices.(a). Counsel, Ac. Observing that in all cases of summary conviction, cases of Sum- the ttccused is admitted to make full answer and defence, tion. and to have all witnesses examined and cross-examined by counsel or attorney. — 4 & 5 V., c. 24, s. 10 ; Con. Sts. C, c. 99, s. fl, p. 1021, also p. 1141. Counsel not In indictable offences the statutes do not any where allowed, as of •' i/"am*Mtion8'Siv® *^® accuscd the same privilege, and it is question- ' ^^^"iMMabu ^^^®' therefore, although quite usual, and indeed the JUjt- ^'i h' ^m m P^^c*^^®) **^ permit it, whether the accused can claim such ^ ^ •* (/^fX ,Li Jlpdefence by counsel or attorney as a rights but discretional C^'Hi^'^'1^''-*i^^with the Magistrate. I i?> * *^ ijoi' titce of^ 'it is \isot& BT observed that in this latter class of ^an°"o'jS°'' («'•«•> indictable) offences, the place where the examina- ^"'*' tion is taken is not to be deemed an open court. And it is entirely in the discretion of the Justice to prohibit any person being present if it appear that the ends of justice will be best answered by such a course. — 16 V., c. 179, s. 11 ; Con. Stats, C. c. 102, s. 36, page 1051. Further pro- After examination of witnesses is completed their thl* hearing, dcpositions are to be read by the Justice to the accused, and then any statement he may make is to be taken down in writing after being first duly cautioned. Taking state. Tho* attention of Justices is here particularly called to 16 v., c. 179, s. 10 ; Con. Stats. C, c. 102, ss. 32, mfint of I'd- soner. (a) The necessity and possible great saving of trouble to the Justioo by attending to this particular will be seen on reference to 16 V. c. 175, s. 10, Con. otats. C, c. 102, s. 33, p. 1051. If so signed they would appear to prove themselves when produced on a trial, and thus perhaps «a.yn th'3 Decessitv of the Justice's personal attendance thereat. k^ magistrate's hand-book. 25 ih the The unleBB 3 is to ,nd his ccused, :ing as d over, acting viction, lefenco, :aminod ) ; Con. y where uestion- eed the dm such jretional class of xamina- And rohibit ends of 16 v., e 1051. d their ccused, |e taken called 88. 32, B JuHticO 16 V. c, lliey would Is perhaps I 34, pp. 1050, 1051, and to the necessity of the caution and explanations to be given and made to the accused before the statement made. The statement thus made should be taken down in the prisoner's very words as nearly as possible, signed by him if he will, as also particularly by the acting Jus- tice or Justices. (See Form N. in above statutes). It is also very requisite that the Justice or Justices should affix his or their signature to the deposition of each witness, such as " Sworn before me, the day of , A. D. 186 . or, the day and year above mentioned. A. B., J. P." fa) The examination being over, the first question for the ^"*p 1°" J°' Magistrate to determine is, whether the charge is sus- *^«J**|°°^j. tained by the evidence, and next, whether the case is "*"*"» °^®'"- one which the laAV requires to be disposed of summarily, or whether it should be sent to a higher tribunal. If the former, the Magistrate will adjudge the amount of the penalty to be imposed (under the limitations of the statutes), together with the costs, which should be re- corded on the proceedings, together with the period of imprisonment to be awarded, in case of non-payment of fine and costs. If the case is one which requires to be disposed of by a higher tribunal, the Magistrate should commit the prisoner " until the next (Court having jurisdic- tion,) {b) or until delivered by due course of law ;'' or in cases of Misdemeanoi^ the Magistrate may admit the in Misde- accused to bail, in sufficient sureties, the amount of bail p/ifmay bin to be regulated by the magnitude of the oftence charged, and by the abilities of the parties. In cases of Misde- meanor, one Magistrate can admit to bail. In cases of Felony^ even in Larcenies of the most trifling class, one Magistrate cannot admit the prisoner (a) See note (a) ante page 24. (6) IG v., c. 179, 8. 12 ; Con. Stats. C, c. 102, s. 37, p. IQol. D Hailing ia Feloniue. 1 'I give t'vl- dencu. 26 magistrate's hand-book. to bail. There must be Uvo^ who may bail the prisoner, but then only where the evidence of guilt is doubtful ; where the evidence is clear, the Magistrates are not authorised to admit the prisoner to bail. In this event, the parties must apply on certified copies of the deposi- tions, examinations, &c., to be obtained from the office of the Clerk of the Peace, to one of the Judges of the superior courts, or Judge of the County Court in cham- bers. No person accused of Treason or Murder can bo admitted to bail, except by order of a Judge of the 8uperior courts. — Con. Stats. C, c. 102, s. 55, p. 1056. hoidinB^witf When a Magistrate commits a prisoner to gaol or "iXcogni'. Isolds him to bail, to take his trial, the Magistrate should vro1ccuV°4 at once, and before the parties leave his presence, or the proceedings considered as over, bind over the prose- cutor and all witnesses to prosecute and give evidence at the ^''next court of competent eriminal jurisdiction at which ' the accused is to be tried." In which case the Magistrate must, at the same time, give a notice of such binding, signed by him, to the several persons bound. — See 16 v., c. 179, s. 12 ; Con. Stats. C, c. 102, ss. 37, 38, pp. 1051, 1052. The giving of this notice appears to be imperative, and that without it the recognizance could not be estreated, and would be therefore useless. Magistrates have no jurisdiction at common law over cases of slander or abuse, however gross, oflfensive, or false the case may be. The Statute Law, however, delegates authority to the municipalities to pass bye- laws for the suppression of obscene, indecent, or grossly insulting language in the streets and highways. Under this the Municipality of York and Peel have acted, in the passage of Bye-Law No. 69. (See page 13, ante.) If, with or without abuse, any person threatens vio- lence or injury to person or property, upon the com- plainant laying the necessary information, the accused may be arrested and without further enquiry bound over, with sufficient sureties to keep the peace and be of Slanilvr, a- bust', &v. Articlufi tif the Pciii'u. magistrate's hand-book. 27 good behaviour for a specified period, usually for six or twelve months. Search "Warrants to bo issued when. — See 16 V., c. ^'"^ntd^"' 179, s. 4 ; Con. Stats. C, c. 102, s. 11, p. 1045; Keele, 4th Ed., 747. Ally Warranty search warrant or otherwise, may be yantm%y'^ii- issued on a Sunday as well as on any other day. — 16 *"* day.^"" v., c. 179, s. 3 ; Con. Stats. C, as above, p. 1045. ' RETURNS OF SUMMARY CONVICTIONS TO QUARTER SESSIONS. Magistrates are bound to make to the Clerk of the Peace Quarterly Returns of all convictions and fines, forfeitures, penalties and damages, and of the applica- tion of the moneys received from defendants. All Ma- gistrates acting in each case to join in such Report under penalty of $80. Form of Return, as per statute : — " Return of Convictions made by me {or us) as the case may be, in the month of , 186 . a is >, o . >-, a 1 * O a 1; ■? q 8 O to c li ntoffine, penalt or damage. ^1 IS cm paid oyer b e said justice. p a , s »» 1 ■*•» s o P. jS-M '^ a ^' ll .1^ ^ If not paid, why not, and general observations, A. B., Convicting Justice, or A. B., C. D., Convicting Justices." 28 magistrate's hand-book. 4 & 5 v., c. 12, 8. 1 ; Con. Stats. U. C, c. 124, s. 1, pp. 985, 986. I (Extract from Upper Canada Laiv Journal^ March, ■ 1860.) " The office of Justice of the Peace is not free from responsibility, and yet there is one duty which, of all others, appears to be very generally neglected. It is the duty which the law imposes upon every Justice of the peace to make returns of convictions had before him, in the manner prescribed by statute. To the nature of this duty, and the penalty for neg- lect of it, we propose in this number to direct attention. Extensive powers are entrusted to Justices of the Peace, including the power in given cases to fine and imprison. This power is one which, if not placed under check, may be abused in many ways. If abused to the detriment of the liberty of the subject, the subject has his remedy for damages. But as the fines to be imposed do not belong to the convicting Justice, if not called upon to give an account of them, there may be an abuse of much magnitude, though no particular individual suf- fer wrong thereby. The sufferer would be the Crown — the guardian of the public — which would be defrauded if fines were improperly withheld. The office of Justice of the Peace is not to be deemed one of profit. Nothing would be more revolting to every principle of British justice than that Magistrates should make a livelihood out of fines imposed in the discharge of official duty. Were this allowed, the frailty of hu- man nature might lead the Justice to impose a fine not so much in proportion to the wrong committed, as in proportion to his own actual wants or sordid craving for gain. Thus the liberty of the subject Avould be at tlie mercy of avarice, and the administration of justice would become a subject of scorn. ^r^rvK^rmfmrn magistrate's hand-book. 29 s. 1, Tho Legislature has deemed it prudent to provide certain checks as preventives of these abuses. On 27tli August, 1841, an act was passed, nting that for tho more effectual recovery and application of penalties, fines and damages, imposed by Justices of the Peace according to law, it is necessary and expedient that such Justices shall, together with the convictions make a due return thereof to the General Quarter Ses- sions of the Peace of the district in which such penalties, finfes and damages, have accrued. — 4 & 5 V., c. 12. In the case of a conviction, it is very doubtful whe- ther a return of the conviction itself, without the formal return of the particulars rendered necessary by the sta- tute, is sufficient. In Kelly q. t. v. Coivan, 18 U. C. Q. B. 104, hereafter noticed, which was the case of a con- viction by a single Justice, the Chief Justice of Upper Canada made some observations that appear to favour the aflirmative of this proposition ; while in Murphy q. t. V. Harvey^ decided during last term in the Court of Common Pleas, but not yet reported, the Chief Justice of the Common Pleas expressed an adverse opinion — at all events as regards the case of a conviction by two or more Justices, which was the case then before the court. The only safe course for a Justice to adopt is in the words of the preamble of 4 & 5 V., c. 12, " together with the conviction, to make a due return thereof, &c.'' The act now regulating the returns is chapter 124 of the Consolidated Statutes of Upper Canada. By section 1, it is provided, " That every Justice of the Peace, before Avhom any trial or hearing is had under any law giving jurisdiction In the premises, and who convicts or imposes any fine, forfeiture, penalty, or damages, upon the defendant, shall make a return thereof in writing under his hand to the next ensuing General Quarter Sessions of the Peace for the county in which such conviction takes place, and of the receipt and application of the moneys received from the defend- ant." 80 iMAGISTRATE S HAND-BOOK. ' !l By the same section it is provided, " That if the con- viction takes place before two or more Justices, such '/u8ticc8 being present and joining in such conviction shall make an immediate return thereof." All experience proves that it is not enough for the Legislature to enjoin that given things of a public na- ture shall be done, but must go further, and state that if not done, there shall be a given penalty. So the Legislature has done here. It is provided by section 2 of the same statute, " That in case the Justice or Justices before whom any such conviction takes place, or who receives any such moneys, nefjlect or refuse to make such return thereof, or in case any such Justice or Justices wilfully make a false, par- tial or incorrect return, or wilfulli/ receive a larger amount of fees tlian bylaw authorised to be Kjceived in every such case such Justice and Justices, and each and every of them, so neglecting or refusing, or wilfully making such false, partial or incorrect return, or wil- fully 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 rccovorod by any person who sues for the same by action of ac-bt or information, in any court of record in Upper Canada ; one moiety whereof shall be paid to the party suing, and the tether moiety into the hands of her Majesty's Receiver-Gene- ral, to and for the public uses of the Province." Every prosecution for any such penalty must be com- menced within six months next after the cause of action accrues, and the same is to be tried in the county where- in the penalty was incurred (sec. 3). The object of the Legislature in passing these enact- ments is, to compel justices to make a return of whatever fines they impose, in order that their diligence in col- lecting the fines may be quickened, and in order that it may be known what money they admit themselves to have received, or that they may be made to account for \i.— O'Reilly q. t. v. Allan, 11 U. C. Q. B. 415. MAGISTRATE S UaND-BOOK. 81 such each '-.thcr icne- nact- teyer col- lat it )S to tfor It seems to be no excuse for neglect to nuiuo the re turn required, that the conviction made was an illegal one. The Court of Queen's Bench expressed the opin- ion, that if a Justice of the Peace makes a conv^iction in fact — not an imperfect one, but one upon the face of it good — there must be a return of it. If he, after con- viction, discover that the conviction was illegal, and for that reason forbear to enforce the fine, his obvious course would bo to make the return as the law directs, and at the same time explain in the return that the fine is not collected, because the Justice doubts the legality of his conviction. — lb. It is proper, however, to observe, that the late Chief Justice Macaulay, in one case, expressed much doubt as to the correctness of this ruling, and inclined to the opinion that an illegal conviction is no conviction, and therefore not necessary to be noticed in a return. — Spillane v. Wilton, 4 U. C. C. P. 242. Some doubt has existed as to whether an appeal from the conviction to General Quarter Sessions is a sufii- cicnt excuse for not making the return. The point has recently received a judicial exposition. — Kelly q. t. v. Cowan, 8 U. C. Q. B. 110. The better opinion now appears to be, that notwithstanding an appeal, a return of some kind must be made. If the Justice return the conviction alone, and in any way make it appear on the face of the proceedings transmitted that the conviction has been appealed from, it seems he cannot properly be convicted of having either refused or neglected to make the return required by the statute. The appeal should suspend all proceedings as regards the collection of the fine, but, singular to say, the act regulating the appeals from convictions by Justices makes no provision for giving liotice of the appeal to the convicting Justice, or to stay his proceedings to collect any fine imposed by him. — Murphy q. t. v. Harvey, uhi supra. If the ap- peal after the conviction is so returned be abandoned, then it clearly rests with the Justice to proceed and col- lect the fine ; and after having collected it, he would be 32 MAOISTRATE B TIAND-BOOK. i bound to make a return, slmwing tho payment, to the Court oF General (Quarter Sessions, [f the contrary course were ailoj)t('(l, there Avouhl be much confusion. One object of tho return is, to inform the Court of (Gen- eral Quarter Sessions what has been done by tiie con- victing Justice. If the convicting Justice make no return of any kind, lie leaves the Court Avithout inform- ation of the fact that there has been a conviction. If tho appeal be abandoned, the Court of Sessions Avould not bo in possession of tho information that a conviction had taken place, and so would not have the means of calling the Justice to account, in case he afterwards levieij the fine and made no return of it. Where a Justice of tho Peace committed and fined the plaintiff for carrying away some cordwood, and, after notice of appeal, the prosecutor, finding that the convict tion was improper, went to the Justice, who drew ou- for him a notice of discontiiiuance, which was served on the person acting as attorney for the plaintiff, before the then next Court of Sessions, and the Justice made a general return to that Court, including this and another conviction, but ran his j^cn through the entry of this conviction, leaving, however, the entry quite legible ; and made a memorandum at the end of it as follows, "this case withdrawn by plaintiff," the return was held sufficient. — Ball q. t. v. Fraser, 18 U. C. Q. B. 100. The facts of this case, it will bo observed, so far from disclosing neglect or refusal, shew that tho Justice did, under the circumstances, all that he could do to comply with the statute ; and it would be well for every Jus- tice, Avhcn in a state of perplexity, to follow his exam- ple. The courts will not allow a public officer, such as a Justice of the Peace, to be vcxatiously sued or need- lessly harassed. When it appears that every thing was done that, under the circumstances of the particular case, could be done to comply with the provisions of the statute, the Justice may rely upon receiving all neces- sary protection against vexation or oppression. MAdlSTRATli H HAND-HOOK. 88 In each return, a Justice may include as many convic- tions a8 have, up to the time of the making of the return, boon had before hitu ; but for every conviction omitted from the return, ho is liable to be sued for the penalty. Where a Justice at the same time convicterl three persona severally, and neglected to make a return of the convictions, he was held liable to a fine of eighty dollars for each one of the throe convictions. — Donagh q. t. v. Longworthy 8 U. C. C. P. 437. So in the event of habitual neglect, it may become a matter of most serious consequence. Some Magistrates, in the course of three months, make as many as twelve convictions, and, in the event of neglect to make the requisite return to the next Court of General Quarter Sessions, such a Magis- trate would be liable to a penalty of $900 ! It is to be hoped that these remarks will not be without due effect upon the many Magistrates who, by their inexcusable neglect of plain and known duty, daily lay themselves open to be mulcted almost to ruin. Another remark, and we have done. It is this : in the case of a conviction by two or more Justices of the Peace, it is the duty of each and all to make the return. By this we mean that though only one return is required, each Justice is liable to a penalty of eighty dollars if that return be neglected. Thus : if three Justices con- vict of an offence, and no return be made, the penalty, instead of being only $80, would be $240, or $80 from each. — Metcalf q. t. v. Reeve ^ Q-ardner^ 9 U. C. Q. B. 263. The moiety of the penalty is given to any person, that is, to the first person who shall sue for the same. The Justice is not liable to be sued by two or more per- sons for one and the same penalty. If, however, the person who first sues does so without any intention of proceeding to judgment, so as to collect the penalty, but in fact to protect the Magistrate from being sued by other parties for the same cause, such device will not be allowed to succeed.— ifeZ/y q. t. v. Ooivan, 18 IJ. C. Q. B. 104." E 84 magistrate's hand-book. COUNTY CROWN ATTORNEYS.— THEIR RE- LATIONS TO JUSTICES OF THE PEACE. Although designated in the act as " County Attor- neys," these functionaries are not County Attorneys as the term might ordinarily import, and as by some they are erroneously supposed to be, but " Crown At- torneys" or "Local Grown Prosecutors" for their respective counties. Crown Attor- Thcv are authorised, therefore, only to advise Magis- neys can only •' i i v o advise in cri. tratcs vo. Criminal oflfences at certain stages. nnnal of- ° ItetoreSuS " If l>y any Justice of the Peace, requested in writing, writinu. containing a statement of the particular case, he (the Crown Attorney) shall advise and instruct such Magis- trate in respect to criminal offences brought before him for preliminary investigation or for adjudication." — 20 v., c. 59, s. 5, (sub-sec. 6) ; Con. Stats. U. C, c. 106, s. 1, (sub-sec. 6), p. 949. In matters, therefore, of servant and master, appren- tices and minors, tavern and shop licenses, hawkers and pedlars, municipal by-laws, &c., &c., indeed, in nearly all the cases mentioned hereinbefore, where the law Abf in quasi- has simply extended to the Magistrate a civil jurisdic- tion, the County Crown Attorney is not authorised by the statute officially to advise, and cannot, therefore, be officially applied to. In such cases the party inter- ested must, if he so desires, seek advice at his own ex- pense ; the County Crown Attorney being at the same time equally eligible to be advised with, in his private capacity, as any other solicitor. By the statute, neither the County Crown Attorney, nor his partner, can act in the defence of persons charged with criminal offences. — 20 V., c. 59, s. 4 ; Con. Stats. U. C, c. 37, s. 4, p. 427. This is the only disqualification created by the act ; in all things else they are entitled to practise as fully as the remainder of the profession. I MAGISTRAIES HAND-BOOK. 85 It must, therefore, not be deemed a want of courtesy on the part of the Crown Attorneys, should any com- munication on non-criminal subjects not meet with a satisfactory response. The advice sought might, in- deed, in many instances be more readily, and in fewer words given, than the explanation of the reasons why not given ; but the Crown Attorney cannot interfere in matters respecting which the Legislature has given him no authority, and by doing which an undue authenticity and weight might, perchance, be erroneously lent. In matters, however, coming within the clause above quoted, the Crown Attorney is bound to advise, and is responsible for the advice given. Immediately upon the conclusion of any indictable j. p.'g imme- proceeding before a Justice, he should, without delay, turn o^ri^na deliver all informations, depositions, statements of the uom, ao., to prisoner and recognizances, to the Crown Attorney. — 20 v., c. 59, s. 11 ; Con. Stats. U. C, c. 106, s. 9, p. 950 ; Con. Stats. C, c. 102, s. 39, p. 1052. By this is meant the original informations and papers as taken, and not copies, as erroneously supposed by some. And the statutes are very imperative upon the point of imme- diate delivery to the Crown Attorney. INTERFERENCE OF JUSTICES WITH EACH OTHER.— PETTY SESSIONS RECOMMEND- ED. Although of very rare occurrence, yet questions have arisen in this Province, as to the right of interference by any other Justice or Justices with the one before whom a proceeding may have been initiated. It is to be observed that all Magistrates have equal powers, and no legal boundaries seem to have been prescribed as to the interference of the one with the duties and proceed, ings of the other. Shoul4 an improper interference, however, at any 86 magistrate's hand-book. ! ; time unhappily occur, it could only be looked upon as extremely impolitic and indecorous, tending to the ob- struction of the ends of justice, Tand to the bringing of justice itself into contumely and contempt. Amongst a Magistracy, however, as in Upper Canada, characterised by the existence of gentlemanly and pa- triotic feelings, it is not too sanguine an anticipation that such dangerous, unseemly and discourteous collisions will but rarely, or except unwittingly, occur. But, it should be observed, that in one instance, that is to say, after a case has been heard and determined^ the law provides that any one Justice, although not the convicting Jus- tice or one of the convicting Justices, may issue all warrants of distress or commitment. — 16 V., c. 178, s. 25; Con. Stats. C, c. 103, ss. 72, 73, p. 1099. In order to bring about a proper unanimity of action, and feeling of responsibility amongst that most highly important and useful body — the Magistracy of the land, the establishment of Petty Sessions in each Town- ship, or such other defined locality and at such stated periods as may be most convenient, is beginning to be looked upon as of great convenience and expediency ; mor- particularly in consequence of the many summary powers which have been of late years so frequently con- fided by statute to Magistrates, and the other grave subjects from time to time requiring their attention. Petty (or petit) Sessions is the meeting of two or more Justices in the same place for the execution of some power vested in them by law. That in " the multitude of counsel there is wisdom," is no less an old than true axiom. It will no doubt, therefore, readily suggest itself to the Magistrate to what extent his mind may be relieved, and his onerous duties rendered pleasanter, by the oppor- tunity of consultation with his brothers in the Commission. More especially in cases to which, although not intricate in themselves, yet perhaps local circumstances of existing or apprehended prejudice attach an imaginary import- ance, which render them more fit to be discussed in tho / sd upon as ; to the ob- )ringing of Br Canada, y and pa- pation that lisions will t, it should ay, after a iW provides icting Jus- / issue all , c. 178, s. 19. J of action, lost highly cy of the lach Town- luch stated ning to be pediency ; summary ently eon- her grave 3ntion. ro or more Q of some multitude than true ;gest itself e relieved, ;he oppor- mmission. t intricate »f existing import- jed in the I ma(/crate's hand-book. presence of sev '1 Magistrates, in order that the ad- ministration oflustice may not only be impartial, but beyond suspi(On. And althoigh any one Justice may have initiated the procceding,yet here the majority of the bench, as it is right 9iou}i be the case, will govern the decision. A c6rk to Justices in Petty Sessions, if one appointed, holds is office during pleasure, and may be at any time summatly dismissed by any one of them, without cause assigned — Dickenson's Qu. Sessions, p. 14, (note 11). MAGISTRATES AND NATURALIZATION OF \ ALIENS. The duies of Magistrates in relation to the above sub- ject are fuly set forth in 12 V., c. 197, ss. 4, 5, & 11, or 22 V. c. 1 all in Con. Stats. C. c, 8, s. 238, pp. 154, 155, 156, ^57; Keele, 4th ed. p. 21. The proceedings are initiated by the applicant before a Justice, and com- pleted on lis handing in the papers obtained from the Justice, either to the Court of General Quarter Sessions, (by leaving with the Clerk of the Peace,) or the Recor ler's Court, (by leaving with the Clerk thereof,) {as the case may he,) on or before the first day of some general sit- ting of those courts. MAGISTRATES, AND APPEALS FROM THEIR DECISION IN CASES OF SUMMARY CON- VICTION There appears to be an opinion prevalent with some that it is incumbent upon the Justice to prepare the bond and papers necessary to the completion of an appeal from his decision to the Quarter Sessions. This idea is entirely erroneous, there being no such incumbency, except indeed what may arise from the good will and kind consideration of the Justice. 87 Hgiril'*''!"'" — ■•"! ""' ifi 'ii y \ 38 magistrate's HANitooi^. It is the duty of the person vf\ thinks himself aggrieved to have his papers properly prepared and handed in, in due season. The bond to prosecute the appeal, (un^ss the party remains in custody,) and the written notice tithe opposite party are absolute conditions 'precedent to thi suacaining, in fact to even the entertaining, of the appeal ;l to be completed within three days after the conviction i| cases under 4 & 5 V., c. 25, s. Qb ; c. 26, s. 38 ; c. 27^. 33 ; Con. Stats. C. c. 99, s. 117, p. 1034. Within fo^ days, in any matter cognizable by such Justice " noibeiny a crime,'' 13&14V.,c.54, Con. Stats., U. C, c. ll^p. 963. The bond with two suflBcient sureties may b« entered into before any .Justice, but it is more usual oj this day of, A.D. 1860.*j deponent.) J.P- COMPELLING ATTENDANCE OF WITNESSES. The laAV gives ample power to the Justice to compel the attendance and evidence of macerial witnesses, and for their punishment, if contumacious when in attend- ance. And although a summons is usually issued in the first instance, yet a warrant may likewise issue in the first instance in certain cases. — See fully 16 V., c. 179, s. 8 ; Con. Stats. C, c. 102^ ss. 26, 27, 28, 29, pp. 1048, 1049 ; 16 V., c. 178, s. 6 ; Con. Stats. C, c. lOa ss. 16, 17, 18, 19, pp. 1087, 1088. Witness refusing to enter into recognizance to prose- cute and give evidence, or to give evidence, may be committed by Justice until after the trial of the accused * If the deponent is illiterate, after the words " 1860," add. " And I do hereby certify that the above affidavit was read over to the depon- ent, who seemed perfectly to understand the same, and made her mark thereto in my presence." •w-y/ rrr 40 magistrate's hand-book. party, unless in the meantirao ho enters into such recog- nizance before a Justice. — 16 V., c. 179, s. 12 ; Con. Stats. C, c. 102, s. 40, p. 1052. This means a refusal to enter into his own recogni- zance, and not an inability to procure some other per- son to join in such recognizance with him ; his own recognizance is all that can or ought to be required. A married woman, however, is incapable of entering into a recognizance ; but if, when before the Justice, she altogether refuses to appear at the trral, and to find sureties for such appearance, when such appearance is essential to the conviction of an offender, she may be committed. — Bennett v. Wataon, 3 M. & S. 1. The usual course is to bind over her husband or other com- petent person as surety for her appearance. Infancy seems no objection to being thus bound. — Exp. Wil- liams, McClell., 493; 13 Price, 670; Dickenson's Q. S., 140. '^ 'V, CONSTABLES.— APPOINTMENT OF. The Court of General Quarter Sessions of the Peace, at their sittings in the month of March in each year, shall nominate a High Constable and Constables, who are, before entering upon office, to take the following oath before any Justice of the Peace : " You shall well and truly serve our Sovereign Lady the Queen in the office of (High Constable or Constable), for the (United Counties of York and Peel), for the year ensuing, to the best of your skill and knowledge. — So help you G6d. Sworn before me at the (Township of ), in the said (United) Count , on the day of one thousand eight hundred and sixty A. B., J. P." 20 v., c. 58, s. 16 ; Con. Stats. U. C, c. 17, s. 10, p. 117. maqisteate's hand-book. 41 SPECIAL CONSTABLES.— APPOINTMENT OF. Any two Justices may appoint, in certain cases of threatened or existing riot, apprehension of felony, &c. Householders and other persons not exempt from serving the ofi&ce of constable, to be appointed. Oath of office. Notice to Provincial Secretary. Justices in sessions to make regulations as to. Penalty for refusing to attend to be sworn ; or for refusing to act, obey orders, &c. — 10 & 11 v., c. 12 ; Con. Stats. C, c. 104, p. 1133 ; Ke(jlc, 4th Ed. 186. THE ASSIZES. The Assizes, Oyer and Terminer, and General Gaol Delivery. In the United Counties of York and Peel, the sittings of this the superior criminal tribunal are fixed by statute to I e held three times a year, commenc- ing on Thursday next after holding the municipal elec- tions in January, on the second Monday in April, and the second Monday in October. In other counties twice a year, in spring and fall, at periods fixed by the judges in the term preceding. — 20 V., c. 57, s. 30 ; Con. Stats. U. C, c. 11, s. 1, p. 41. RECORDER'S COURT. In cities where established there are four sittings of this court every year, commencing respectively on the second Monday in January, and on the first Monday in the Months of April, July and November. COURTS OF GENERAL QUARTER SESSIONS. There are four sittings of the Courts of General F 42 magistrate's hand-book. Quarter Sessions of the Peace in each county or union of counties in Upper Canada, commencing respectively on the second Tuesday in the months of March, June, September and December in each year. — 20 V., c. 58, s. 16 ; Con. Stats. U. C, c. 17, s. 3, p. 116. ti JUSTICES SHOULD COMMIT, &o., TO FIRST COURT OF COMPETENT CRIMINAL JURIS- DICTION. A great and perhaps deserved outcry having arisen in reference to the duration of the several courts of Asjizo, and the hardship endured by suitors, jurors, witnesses, &c., by a protracted attendance thereat, every one con- nected with the administration of criminal justice should be desirous to aid, as far as in his power, in an abate- ment of the evil. The Magistrate's part tlien, of this desirable work, is to keep before his mind the periods of sitting i>f the Court of Quarter Sessions, (see p. 41 ante,) and if they are found to occur before a sittings of Assize, to be careful to commit or hold to bail, as case may be, at all events in all cases not of an extraordinary or complex nature, to the then next ensuing Sessions, (or in cities to the Recorder H Court). Justices should bind over to next court of competent criminal jurisdiction. — 16 V., c. 179, s. 12 ; Con. Stats. C, c. 102, s. 37, p. 1051. Should, however, by any mistake in the calculation, a sittings of Assize intervene, no possible wrong can be done, as that court being a General Gaol Delivery, the matter would of course be taken up and disposed of there. And although no matter to what court com- mitted, the County Crown Attorney has the control of its disposal, yet it would better conduce to a good under- standing amongst all parties, and a prevention perhaps of some misapprehension and confusion were the Magis- trate to commit at once to the local criminal court, /. e.. MAGISTRATE S HAND-BOOK. 43 ov union jectively h, June, ^, c. 58, slons. FIRST JURIS- arisen in jf Asjize, witnesses, ■ one con- [ce should an abate- e work, is ng i>f the d if they ze, to be be, at all complex Ir in cities id over to -16 v., p. 1051. [ulation, a ng can be Lvevy, the sposed of lurt com- !ontrol of )d under- perhaps le Magis- to the Quarter Sessions (or llocordor's Court) having jurisdiction, if it first happens. Upon the mere question of jurisdiction of the Quar- jurisdiction ter Sessions (the Recorder's Court possessing the same, Qimrter se^- being in fact a Qua. or Sessions of the city), it Mould seem that in this country that court has jurisdiction although not usual, nor as yet perhaps politic to exer- cise it in cases of difficulty and importance, over every crime, except perjury and forgery. The law is with us as it stood in England before 5 & G v., c. 38, passed there the 80th June, 1842, intituled, "An Act defining jurisdiction of Justices in Sessions." Prior to this the jurisdiction of the court arose from the Commission of the Peace itself, as settled under 18 Ed. 3, c. 2, and 34 Ed. 3, c. 1, and from the express provisions of numerous statutes. By their Commission, Justices in Session are directed to hear and determine, inter alia, " All felonies, tres- passes, and all such other crimes and oflfences of which said Justices may or ought lawfully to enquire." Before the 30th June, 1842, in England, they had power under the term ^^ felonies " to try all capital fe- lonies, e. g., murder, although not specially named, (a) The word "felony,'' in an ancient act {e. g. Mag. ch. ch. 22) means all manner of "felonies" punished by death, and not petty larceny, which is, notwithstanding^ a "felony." — 2 Inst. 37. Felony, ex vi termini signi- jicat quodlihet capitale, cumen felleo animo perpetra- tum. — Co. Litt. 391 a. In practice it now applies to all offences ranging between treason and misdemeanors. But they were held to have no jurisdiction over for- gery, nor perjury where pift)secuted at common law. — Dickenson's Q. S., 6 Ed. 156, 157 and notes. The term " trespasses" includes all "mi&demeanors," ibid. 157 and notes, which are triable as of course at the Quarter Sessions, unless the jurisdiction is specially taken away by statute. Thus the various misdemeanors (a) Hawk. B. 2, c. 8, s. 33. ~~ 44 magistrate's hand-book. ( : m i created in our statutes 22 V., c. 2, ss. 1, 2, 3, 4, 6, 6, 7, 8, 9 ; 22 V., c. 33, s. 16 ; all in Con. Stats. C, c. 92, S8. 51, & seq. p. 973,4,5, being the act relating to frauds by servants, trustees, bankers, agents, &c., are declared by s. 15 of 22 V., and s. 66 of Con. Stats. C, c. 92, not triable at any Quarter Sessions. Upon this subject of jurisdiction is here inserted a communication embodying an opinion of the Hon. John A. Macdonald, Attorney-General for Upper Canada. Crown Law Department Upper Canada :} Toronto, 5th July, 1859. Sir — I have the honour by desire of the Attorney- General of Upper Canada, to acknowledge your letter of yesterday's date, transmitting one from Mr. Recorder Duggan as to the jurisdiction of the Recorder's Court in capital cases of felony, and awarding capital punishment therefor. I am in reply to inform you that although the juris- diction of the court may not be open to question, yet that the Attorney-General is of opinion that at present, and until the introduction of a new practice throughout Upper Canada, the trial of capital felonies should be reserved for the Assizes. I am to request that you will communicate this letter to the Recorder. I have the honour to be. Sir, Your obedient Servant, H. BERNARD. R. Dempsey, Esq., County Crown Attornejf, &c. COSTS. The Magistrate is entitled to charge the legal costs in all cases punishable by summary jurisdiction, but he cannot charge or receive any fees in cases of felony. magistrate's hand-book. 46 The constable's charges in cases of felony are payable by the Province, by account rendered to the County Treasurer as hereinafter stated. It is usual and is deemed necessary to prevent frivo- lous complaints, for the Magistrate, in all cases where he is allowed to charge fees to require the prelimi- nary expenses to be paid by tiio complainant, to wit, fifty cents for the information and warrant or summons, which is afterwards returned to the complainant upon the conviction and payment of the same by the accused. In cases of summary jurisdiction where the com- plainant fails to sustain his charge, and the case is dis- missed by the Magistrate, the complainant must pay all costs if so ordered, and he may in default of distress be committed by the Magistrate for any period not exceed- ing one month. — 16 V., c. 178, ss. 17, 22, Con. Stats. C. c. 103, ss. 54, 64, pp. 1095,8. The defendant cannot be charged with costs except in cases of conviction. A magistrate, therefore, cannot dismiss a charge and require the accused to pay the costs. It is usual, however, for the magistrate in cases of ordinary assaults, petty trespasses, &c., to allow the parties (after complaint has been lodged) to settle the matter between them if they desire it on payment of the costs already incurred. In cases where articles of the peace are exhibited against a person requiring said person to give sureties for the peace and good behaviour, the accused may be arrested as already stated and held to bail without any evidence being adduced in proof of the charge. In these cases the usual practice is for the magistrate to require the complainant to pay the costs of the infor- mation and warrant and the defendant to pay the subse- quent expenses. TABLE OF MAGISTRATE'S FEES. The following fees, and no others, shall be taken by 46 magistratk's hand-book. Justices of the Peace in Upper Canada, or by their clerks, for the (Uities and services iieroafter mentioned, that is to say, 14 & 15 V., c. Hi), s. ii ; Con. Stats. U. C. c. 119, 8. 11, p. 97a. For an information and warrant for apprehension, or for an information and sumuionrt for aaaault, trespass or other misdemeanor 0.50 For eacli copy of summons to bo served on de- fendant or defendants 0.10 For a subpoena, only one on each side being charged for in each case, and which may con- tain any number of names ; and if the justice of the case requires it, additional subpoenas shall be issued without charge 0.10 For every recognizance, only one to be charged in each case 0.25 For every certificate of recognizance under the act respecting estreats 0.25 For information and warrant for surety of the peace for good behaviour to be paid by com- plainant 0.50 For warrant of commitment for default of surety to keep peace or good behaviour, to be paid by complainant 0.50 The costs to be charged in all cases of convictions where the fees are not expressly prescribed by any statute shall be as follows : that is to say — 14 & 15 V., c. 119, s. 3 ; Con. Stats. U. C, c. 119, s. 12, p. 974. For information and warrant for apprehension and sumuiu us for service 0.50 For every copy of summons to be served upon defendant or defendants 0,10 For every subpoena to a witness (as provided in the eleventh section of this act) 0.10 For hearing and determining the case 0.50 For warrant to levy penalty 0.25 For making up every record of conviction when the same is ordered to be returned to the ses- sions or on certiorari 1.00 « 0.50 • 0.10 e 8 • 0.10 (1 • 0.25 e . 0.25 e i- MAOISTRATR'S FIAND-nOOK. For copy of any other paper connected with any trial, and the niinutea of the .same if demanded, every folio of one hundred Words 0.10 Provided always, that in all such cases as admit of a summary proceeding before a single Justice of the Peace, and wherein no higher penalty than ^20 can be imposed there shall he charged onhj (Con. Stats. U. C. ibid., 8. 13, p. 074), for the conviction 0.50 And for the warrant to levy the penalty 0.25 Every bill of costs when demanded, to bo made out in detail, (ibid., s. 14.) 0.10 No fees arc allowed to the Justice in cases oi felony. 47 WITNESS' FEES. In all cases where persons are suhpcmiaed to ;^ivc evidence before Justices, in cases of assault, trespass or misdemeanor, sucli witness shall be entitled, in the dis- cretion of the Magistrate, to receive for every day's at- tendance, where the distance travelled in coming to, and returning from, such adjudication does not exceed 10 miles 0.50 And for uli mile above 10 0.05 Ibid., s<. 13, p. 074. The act does not authorise any claim being made by Justices for fees of any description connected with cases above the degree of misdemeanor. Nor shall witnesses in cases above such degree be allowed a ny thing for their attendance on trial, except under the order of the court before which the trial of the case is had. Ibid., s. 15, p. 074. i TARIFF OF CONSTABLES' FEES. Tariii of fees to be taken by county constables, estab- I! m ' \\''\^ 48 magistrate's hand-book. lished by the judges, under and by virtue of 8 V., c. 38, Con. Stats. U. C, c. 119, p. 971. This does not include costs of levying distresses for small rents and penalties, which is settled by statute 1 v., c. 16, Con. Stats. U. C, c. 123, p. 982, for which see ante page 15. Arrest of each individual upon a warrant, (to be paid out of the public funds, or by the party, according to the nature of the case) $1.00 Serving Summons or Subpoena, (to be paid out of the public funds or by the party) 0.25 Mileage in going to serve Summons, Subpoena, or warrant, per mile (to be paid out of the Public Funds or by the party, as the case may be) 0.10 Attending Assizes or Sessions, per day 1.00 Attending any Justice on trials under the Sum- mary Punishment Acts, or on the examina- tion of prisoners charged with any crime, for each day necesssarily employed 1.00 Mileage in going to serve summons or warrant, where the service has not been effected, due diligence having been used, (to be paid out of the public funds, or by the party, as the case may be) 0.10 Taking prisoners to gaol, per mile, exclusive of disbursements necessarily expended in their conveyance, (to be paid out of the public funds, or by the party as the case may be) 0.07 Summoning jury for coroner's inquest, (public funds) 2.00 Attending inquest, for each day other than the first, do 1.00 Serving notice of appointment vf constables, when personally served, (public funds) 0.50 Levying upon distress warrant, and returning the same, when charge not provided by law, (by party) 1.00 MAGISTRATE S HAND-BOOK. 40 Advertising and selling under distress warrant, when charge not provided by law, (by party) 1.00 Travelling to make distress, or to search for goods to make distress, when no goods are found, per mile — where charge is not other- wise provided by law, (payable by county or party) 0.07 Appraisement, whether by one appraiser or more, four-pence in th^ pound on the value of the goods, (to be paid by the party) 0.07 All accounts for services connected with the adminis- tration of criminal justice (as in felonies of all classes) are examined, audited, and allowed quarterly, by a board of audit, appointed by the government in each county) instead of being so passed (as they were previous to the year 1846) by the Justices in session. Constables, therefore, having claims against counties for services performed by them relating to the adminis. tration of criminal justice, are required to render their accounts (particularly describing in them the nature of the offence with which the party was charged) to the County Treasurer, in conformity with the regulations adopted by His Excellency the Governor-General in Council ; an extract from which follows, viz : — " That all accounts for the payment of which, or any part of which the province is by act liable, shall be ren- derea in duplicate to the Treasurer of each county during the sittings of the Court of Quarter Sessions, or within three days thereafter, and shall include all the demands of the party rendering the same, (payable as aforesaid by the province,) and refer to the authority of the charge. " That such account, before rendered to the Treasurer, shall be verified by the oath of the party, that it is just and correct, to the best of his knowledge and belief. And in cases where mileage is charged, there shall be an affidavit stating the places to which and from which the mileage is reckoned, as well as the number of miles ; and that in no case shall more than the actual number of XifM ti ■ i v^n** I ' 5Cl magistrate's hand-book. miles travelled be allowed, nor a greater number of miles than the distance from the court house to the place of service." Each account must also be verified by a certificate of the Magistrate under whose authority the services were performed. Constables are distinctly to understand that, as a gene- ral rule, their expenses will be paid from the public funds under the above regulations, in cases oi felony only. In all cases oi misdemeanor^ such as assault and battery, trespass, non-performance of statute labour and the like, the constable's fees must be paid by the defendant, if convicted, or by the complainant, if the case be dismissed > and in ordinary cases of misdemeanor, the magistrate may order the constable's fees to be paid, in the first in- stance, by the complainant, to be returned upon convic- tion and payment by the accused, and a constable may refuse to act in such cases unless his expenses be so paid, though if the Magistrate, from any peculiarity in the case? should order the constable to perform the du^y without payment of his expenses, he cannot legally refuse. There is one instance, however, in which constables may obtain their lawful fees from the county funds, in case of misdemeanor, namely, where a party has been convicted of misdemeanor, ordered to pay a fine and costs, and committed to gaol in default thereof. In such cases the constable must send in his account to Office OF THE Clerk of the Peace, stating fully the particulars of each case, and have appended thereto a certificate of the Magistrate under whom he acted, vouching for . the justness and correctness of the account, and that the party convicted had no goods or chattels^ out of which the fine and costs could bo made. FORM OF COMMISSION OF THE PEACE. " [L. S.] Edmund Head. PKOVINCE OF CANADA. Victor Al^a; braee ot (jroa, oi tnc (Jnitetl King- i I magistrate's hand-book. 51 Jom of Great Britain and Ireland, Queen, Defender of the Faith, &e., &c., &c. To, &c., &c. : — Know ye, that we have assigned you jointly and seve- rally and every ono of you our Justices to keep the peace in our said Count of , in our said Province of Canada, and to keep and to cause to he kept all ordinances and statutes for the good of the peace and for the preservation of the same, and for the quiet rule and government of our people, made in all and singular their articles in our said Count according to the force, form and effect of the same, and to chastise and punish all persons that offend against the form of those ordinances and statutes, or any one of them, in the aforesaid Count , as it ought to be done according to the form of those ordi- nances and statutes, and to cause to come before you or any one of you, all those who to any one or more of our )eople concerning their bodies, or the firing of their iiouses have used threats, and to find sufficient security for the peace or their good behaviour towards us and our people, and if they shall refuse to find such security, then them in our prisons until they shall find such secu- rity, to cause to be safely kept. We have also assigned you and every two or more of you, our Justices, to in- quire more fully the truth by the oaths of good and lawful men of the Count aforesaid, by whom the truth of the matter may be the better known and inquired of all and all manner of felonies, poisonings, trespassings, regratings, engrossings and extortions whatsoever, and of all and singular the crimes and of- fences of which the Justices of the Peace may or ought lawfully to inquire by whomsoever, and after what man- ner soever in the said Count had, done, or perpetrated, or which hereafter shall there happen to be done or attempted ; and also of all those who in the aforesaid Count in companies against our peace in disturbance of our people with armed force rf m I r i i , ! i : i ! i 5'2 magistbate's hand-book. have gone or rode, or who hereafter shall presume to go or ride ; and also all of those who shall have there lain in wait, or hereafter shall presume to lie in wait to maim or cut, or kill our people ; and also of all victu" allerc and all and singular other persons v ho in the abuse of weights and measures, or selling victuals against the form of the ordinances and statutes, or any* one of them therefor i ide for the common benefit of cur peo- ple of our said Province have offended or attempted, or hereafter shall presume in our said Count to o^end or attempt ; and also of all sheriffs, bailiffs, con- stables, stewards, keepers of gaols, and other officers, who in the execution of their offices about the premises, or any of them have unduly behaved themselves, or hereafter shall presume to behave themselves unduly, or have been, or hereafter shall happen to be careless, remiss or negligent in our aforesaid Count ; and of all and singular articles and circumstances and all other things whatsoever that concern the premises, or any of them, by whomsoever and after what manner soever in our aforesaid Count done or per- petrated, or which hereafter shall happen to be done or attempted in what manner soever ; and to inspect all indiccments whatsoever so before you or any of you taken, or to be taken, or before others late our Justices of the Peace in our aforesaid Count made or taken and not yet determined, and to make and con- tinue process thereupon against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted until they can be taken, surreii- , der themselves, or be outlawed ; and to hear and deter- mine all and singular the felonies, poisonings, trespasses, forestallings, regratings, engrossings, extortions, unlaw- ful assemblies, indictments aforesaid, and all and singu- lar other the premises, according to the laws and statutes aforesaid, as it has been accustomed, or ought to be done, and the same offenders for their offences aforesaid, by fines, ransoms, amerciaments, forfeitures or other magistrate's hand-book. 58 means according to the law and custom of that part of our Baid province called Upper Canada, ano form of the ordinances and statutes aforesaid to chastise and punish. Provided always that if a case of difficulty upon a determination of any pf the premises before you, or any two or more of you, should happen to arise, then let judgment in nowise be given before you or any two or more of you, unless in the presence of one of our Jus- tices of our Court of Queen's Bench, or one of our Jus- tices of our Court of Common Pleas, or one of our Justices appointed to hold the Assizes in the said Count . And therefore we command you and every of you that to keeping the peace, ordinances and sta- tutes, and all and singular the premises you diligently apply yourselves, and that at certain days and places which you or any two or more of you as is aforesaid shall appoint, into the premises you make enquiries and all and singular the premises hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains according to the law and custom of that part of our said province called Upper Canada ; saving to us our amerciaments, and other things to us thereunto belonging. For we have commanded and do hereby command our Sheriif of our said Count , that at certain days and places which you or any such two or more of you as is afore- said to him shall make known, he cause to come before you or any such two or more of you as is aforesaid, such and so many good and lawful men of his Count by whom the truth of the matter in the pre- mises shall be the better known and enquired into. In testimony whereof we have caused these our let- ters to be made patent, and the great seal of our said province to be hereunto affixed ; witness our right trusty and well beloved, the Right Honorable Sir Edmund Walker Head, Baronet, one of our most Honourable Privy Council, Governor-General of British North Ame- rica, and Captain-General and Governor-in-Chief in and ! i c 64 magistrate's hand-book. over our provinces of Canada, Nova Scotia, New Bruns- wick, and the Island of Prince Edward, and Vice-Ad- miral of the same, &c., &c., &c,, at Toronto, this seven- teenth day of Februar^ in the year of our Lord one thousand eight hundred and fi^ty-nine, and in the twenty-second year of our reign." By command. C. Alleyn, Secretary. The commission as above, under the Great Seal, in- cludes all the names of those intended to be thus honour- ed by her Majesty, <».nd is transmitted to the department of the Clerk of the Peace for the county, and there filed of record. JUSTICE'S OATH OF PROPERTY QUALIFI- CATION. United Counties of to wit : Canada. I, of the of , in the United Counties of , do swear that I truly and bon^ fide, have to and for my own proper use and benefit such an estate in lands and tenements, (being composed of ,) as doth qualify me to act as Justice of the Peace for the said United Counties of , according to the true intent and meaning of an Act of Provincial Parliament, made in the sixth year of the reign of Her Majesty Queen Victoria, and intituled, " an Act for the Qualification of Justices of the Peace,"(a) and that the same is lying and being within the aforesaid. — ,7o help me God. (a) 6 v., c. 3, 8. 3 — Actual possession to and for his own use and benefit, a real estate either in free and common soccage, or en Jief, or en rotflre, or en franc alleu, in absolute property, or for life, or by eini)hyteose, or lease for one or more lives, or originally created for a term not less than 21 years, or by usufructuary possession for his life in lands, tenements or other immovable property, lying and being in this Province, of or above the value of $1,200, over and above what will satisfy and discharge all incumbrances affecting the same, and over and above all rents and charges payable out of, or affecting the same, &c.— Con. Stats. C, c. 100, s. 3, p. 1038. r Bruns- ^ice-Ad- is seven- ord one in the etary. Seal, in- I honour- )artment lere filed LIFI- , in the I truly use and 3, (being act as mties of aning of he sixth ria, and es of the within n use and \m fief, or life, or by Vted for a [or bis life being iu j)Ove what lame, and pcting the magistrate's hand-book. Sworn before me, at the of in the said United Counties of day of , A.D. this J. P. MAGISTRATE'S ROLL.— JUSTICE'S OATHS OF OFFICE. Under the general corami&sion dated for the count of , '' You shall swear, that as Justice of the Peace for the Count of of the Province of Cana- da, in all articles of the Queen's commission to you directed, you shall do equal right to the poor and the rich, after your cunning wit and power, and after the laws and customs of the realm, and statutes thereof made ; and ye shall not be of council of any quarrel hanging before you ; and that you hold your sessions after the form of the statutes thereof made ; and that the issues, fines, and amercioments that shall happen to be made, and all forfeitures which shall fall before you, ye shall cause to be enforced, without any concealment or embezzlement, and truly send them to the Queen's Exchequer. Ye shall not let for gift, or other cause, but well and truly ye shall do your office of Justice of the Peace in that behalf, and that ye shall take nothing for your office of Justice of the Peace to be done but of the Queen and fees accustomed and costs limited by statute ; and ye shall not direct or cause to be directed any warrant by you to be made, to the parties, but ye shall direct them to the bailiff of the said Count , or other the Queen's officers or ministers, or othe^ inde- pendent personp to do execution thereof." aod. ' -So ip you OATH OF ALLEGIANCE. " You do sincerely promise and swear that you will be faithful and bear true allegiance to Her Majesty Queen Victoria, as lawful sovereign of the United Kingdom of 65 ! ! !( 56 magistrate's hand-book. ' Great Britain and Ireland, and of this Province depen- ding on, and belonging to, the said kingdoip, and that you will defend Her to the utmost of your power against all traitorous conspiracies or attempts whatsoever which shall be made against her person, crown or dignity ; and that you will do your utmost endeavours tc disclpse and make known to Iler 3IajeHty^ her heirs and successors, all treasons and traitorous conspiracies and attempts which you shall know to bo against her, or any of them. And all this you do swear, without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or power to the con- trary. — So help you Gfod." No. Signature. Date of oath. Place of Residence. By whom sworn. JUSTICES OF THE PEACE— WHO AR:E. Justices of the Peace may be divided into two classes, namely, those who are thus appointed, and whose names should appear on the roll, and those who are so for »the time being, merely, virtute officii. Of this latter class are 22 V., c. 54, Con. Stats. U. C, p. 637. 362. The head of every council, the aldermen of a city, the Justices of the Peace and the reeve of every town, and the deputy-reeve of every township, town and incorporated village, shall ex officio be Justices of the Peace for the whole county or union of counties in which their respective municipalities lie, and shall not be disqualified by being an attorney, solicitor or coroner. 363. Justices of the Peace for any towji, shall have the same property qualifications and take the same oaths as other Justices of the Peace ; but no warden, mayor, recorder, police magistrate, alderman, reeve or deputy-reeve- after taking the oaths or making the declarations as such, shall require to have any property i: U •■WTOUKSfSSSS"! :.r,mk..-:' . . MAGISTRATE S HAND-BOOK. qualification, or to take any further oath to enable him to act as a Justice of the Peace. 364. When a town has been erected into a city, and the council of the city duly organized, every com- mission of the peace theretofore issued for the town shall cease. 365. Justices of the Peace for a county in which a city lies, shall as such have no jurisdiction over offences committed in the city, and the warrants of county Jus- tices shall require to be endorsed before being executed in a city in the same manner as required by law when to be executed in a separate county ; but the general and adjourned Quarter Sessions of the Peace for the county may be held, and the jurisdiction theieof exer- cised, within the city. 366. Nothing herein contained shall limit the power of the Governor to appoint, under the great seal of the province, any number of Justices of the Peace for a town, or shall interfere with the jurisdiction of Justices of the Peace for the county in which a town is situate over offences committed in the town, except only so far as respects offences against the by-laws of the town and penalties for refusal to accept office, or to make the declaration of office in the town, as to which ju- risdiction shall be exercised exclusively by the Police Ma- gistrate, or Mayor, or Justices of the Peace for the town. , 367. The Mayor of any city or town may call out the posse to enforce the law within his municipality, should exigencies require it, but only under the same circumstances in which the sheriff of a county may now by law do so. 67' I EXTRADITION OF CERTAIN CRIMINALS.- ASHBURTON TREATY. rni. he act, respecting the treaty between Her Majesty ^ 1 ! Ill « i li i l\ 68 magistrate's hand-book. and the United States of America, (the ratifications whereof w'cro exchanged in London on the 30th day of Octohcr, 1842,) for the apprehension and surrender of certain offenders, provides for the mutual delivery up to justice, as therein set forth, of all persons charged with the seven following classep of crime, namely, mur- der, assault with intent to commit murder, piracy, arson, robbery, forgery, or the utterance of forged paper. — 12 v., c. 19 ; Con. Stats. C, c. R9, p. 943. TOLLS ON TURNPIKE ROADS- FROM. -EXEMPTIONS 1. All persons going to or returning from Divine Ser- itiK to or ro vico ou any ounday or obligatory holiday, in or upon from Divino and with their own carriages, horses or other beasts of Servire ox- •"mptca from draught, and also their families, and servants beiflg in or upon and with such carriages, horses or other beasts of draught, shall pass toll-free through every turnpike or toll-gate, on any turnpike road, through which they may have occasion to pass, whether such turnpike road and the tolls thereon belong to the Province, or to any local or municipal authority, or body of trustees or com- missioners for local purposes, or to any incorporated or unincorporated company, or to any other body or per- son. — 7 v., c. 14, s. 2. Vehicles- 2. No vohicle laden or unladen, and no horses or cattle '^irossfni?' belonging to the proprietor or occupier of any lands fwm divided divided by any turnpike road, shall be liable to toll on -exempted'^ passing through any toll-gate on such road (at whatever ^'Then"~ distance the same may be from any city or town) for the sole purpose of going from one part of the lands of such proprietor or occupier to another part of the same ; provided such vehicle, horses or cattle do not proceed more than half a mile along such turnpike road, either in going or in returning, and for farming or domestic purposes only. — 7 V., c. 14. a. 8, .-*-'>5iiS5w'v MdiiiMii ■irii'rtikiiniiiMirii maoistrate's hand-book. 69 clticH imd tOWUHOX- ompt from toll. 3. Every vehicle laden solely with manure, brought from Y£*with ' any city in Lower Canada, or any city or incorporated '"t'n'y"!?^"''' town in Upper Canada, and employed to carry the same into the country parts for the purposes of agriculture, and the horse or horses, or other beast of draught, drawing such vehicle, shall pass toll-free through every turnpike gate or toll-gate on any turnpike road within twenty miles of such city or town, as well as in going from such city or town, as returnincj thereto, if then empty. — 7 V., c. 14, s. 1. 4. This act shall not extend to any toll-bridge, the tolls toup"piy'to on which are vested in any party other than the Crown. '"''*^*' —7 v., c. 14, s. 4 ; Con. Stats. C, c. 86, j. 938. ARTICLES OF THE PEACE. jattlo lands ill on tcvcr the Isuch Lme ; Iceed tther 3stic Mecognizance for Keeping the Peace may he taken by a Single Justice for an indefinite Period.l — It was once contended that a recognizance taken by a single Justice to keep the peace, or be of good behaviour, for any cer- tain period, or for life, or without expressing any speci- fic time, and without fixing any certain period for the ofiender's appearance, was not legal and sufficient ; (a) but it appears on all hands to have been the ancient practice,(6) and is supported by the greatest authorities. (c) It is true that it has of late been the more usual, and is considered as the better way, except under very special circumstances, to bind the part)^^ against whom the peace is required, to keep the peace to the Queen and all her liege people, especially to the party claiming the secu- rity, for a period of, say aix or twelve months. If the party refuses to be bound, it seems he may be committed to gaol till he shall comply, [d) or till the next session. This right, however, in an individual Magistrate to require securities without restriction as to time, and the (a) Even Hawkins speaks doubtfully, B. 1, c. GO ; R. v. Bowes, 1 T. R. r.96. (6) Dalt. c. 119 ; 2 Ilule, c. iiio. (c) 4 Bla. Com. 253. {d) 2 Hawk. c. 16, s. 2. CO MAaiSTRATi: S HAND-BOOK. '■ 'H other circumstances above referred to, received the most decided confirmation from a decision of the Court of King's Bench, (a) in an action against the defendant, a Justice of the Peace for the County of Sussex, for falsely imprisoning the plaintiff under a warrant of commitment (on failure of finding sureties) to the house of correction, which directed the gaoler the plaintiff " safely to keep for the apace of two years^ unless he shall in the mean time find sureties, &c., for keeping the peace towards our lord the King, and all his liege people, and espe- cially towards the party demanding sureties, for the space of two years from the date reof." Abbott, C. J., (with whom the other Judges concurred,) delivered his opinion to the following offect — " The authority of a Justice of the Peace to require, upon due complaint made to him in hb judicial charac- ter, sureties for the keeping of the peace, and to commit a person to prison for want of such sureties, is not, nor could it be, denied ; but it is contended for the plaintiff, that surety can only be reciuired for appearance at the next Session, and for keeping the peace in the mean time, &c. ; whereas the warrant under which the plain- tiflF was committed, commands his imprisonment for two years, unless in the meantime he shall find sureties /or two years from the date of the warrant. The arguments in support of the limited power of Justices to bind are principally founded upon stat. 3 H. VII., c. 1, at the close of which, after several enactments relating to the duty of coroners, &c., it is ordained that every Justice of the Peace who shall take any recognizance for the keep- ing of the peace, do certify, send, or bring the said recognizance to the next Session of the Peace, that so the party bound may be called, &c. But the authority of a Justice to take surety for the peace, existed long before this statute, and is derived from the Commission of the Peace, which appears to have had its origin in the statute 1 Ed. IIL, c. 16 ; the authority under which (a) Willii \. Bridger, 2 B. & Aid. 278 : 1 Chit. Rep. 273, S. C. MAGISTRATK S HAND-BOOK. 01 iB more fully set forth in 34 Ed. III., c. 1, by which they are to have power to restrain offenders, to arrest and chastise them, and cause thcin to be imprisoned, &c., according to law ; to arrest all that they mai/ find by indictment or suspicion, and to put them in prison ; and to take 0^ all them that be not of good fame, sufficient surety and mainprize of their good behaviour towards the King and his people, &c. These two clauses are perfectly distinct ; the former of them relating to per- sons charged with the actual commission of some offence, when the recognizance is only in the nature of bail to appear at the Session, and answer to any charge that may be preferred against them, and in the meantime to keep the peace ; but the latter is for taking sureties for such time, and in such sum, as the Justi-^o (in the exercise of a sound and legal, and not a wilful and arl - trary, discretion) shall think fit and proper." (a) I For what Cause to be yranted. — By the ('om;nission of the Peace, one or more Justices have power "to cause to come before them all those who, to any of the King's people concerning their bodies, or the firing of their houses, have used threats, to find sufficient security for the peace, or their good behaviour, towards the King and his people ; and, if they shall refuse to find such security, to cause them in the King's prisons to be safely kept, until they shall find such security." :eep- said )rity llong psion In in Ihich Fear of Corporal Hurt, or bui'Mug the House of Applicant. — It seems clear that wherever a person has just cause to fear that another kvill burn his house, or do him a corporal hurt, or that he will procure others to do so, he may demand the surety of the peace against such person, and that every Justice of the Peace is bound to grant it, upon the party's giving him satisfaction upon oath that he is actually under such fear, and that he (a) ». V, Trcgarthen, 5 B. & Adol. (578 ; 2 Ney. & Man. 379. fcr !1i "I i I 62 magistrate's hand-book. has just cause to be so, and that he does not require it out of malice or vexation, (a) Where demanded through Malice or Vexation. — But if the Justice shall perceive that surety is demanded merely of malice, or for vexation only, without any just cause of fear, it seems he may safely deny it ; here, however, the Justice shall do well to persuade him, and to show him the danger of his oath which he is to take ; but yet if he will not be persuaded, but will take his oath that he is in fear, where indeed he neither doth fear, nor hath cause to fear, this oath shall discharge the Justice, and the fault shall remain on such com- plainant.. If a man require the peace, merely because he is at variance or in suit with his neighbour, it shall not be granted, (b) But this fact must appear directly from the declara- tions of the party, for otherwise the Justice, collecting such motives inferentially, will take on himself a respon- sibility not justified by the cases just cited. Wife, Child, Servants, Goods, or Cattle. — All the authorities agree that fear lest another will hurt a man's servants, or his cattle, or goods, is not sufficient ground for requiring surety of the peace. But it is otherwise as to his wife or child, for he may crave the peace for their protection at the Justice's hands, by the words of tLe Commission, and the Justice ought to grant it. (e) If the children be under the age of discretion, there can be no doubt respecting the parent's claim on the authority of the Justice for protection, on his (the fa- ther's) oath. llfHl Pardon. — After the condition of a recognizance for keeping the peace is broken, the King may pardon the (a) Hawk. B. 1, c. 00, s. G. Sec Reg. v, Dunn, 12 Ad. & E. 599. (6) Dalt. c. IIG. (c) Dalt. c. IIG. magistrate's hand-book. 63 forfeiture ; but the King cannot release the condition before it is broken ; because the person upon whoso complaint the recognizance was entered into, has a kind of interest in the condition. (*) Recognizances Jiow and ivhen may he Forfeited. — There is no doubt that the recognizances taken may bo forfeited by any actual violence to the person of ano- ther, whether it be done by the party himself, or by others through his procurement, as manslaughter, rape, robbery, unlawful imprisonment, and the like, (a) And even by threatening to do any act of violence against another in his presence : and it is said, in his absence also, if accompanied by lying in wait to execute it ; {b) but not by mere words of anger or abuse, (c) And the Justices cannot in any case proceed against the party for a forfeiture of his recognizance, either in respect of his not appearing, or of his breaking the peace ; but the recognizance itself, with the record, on default of appearance, ought to be removed into the Court of Queen's Bench, who shall proceed by scire facias upon such recognizance, and not by indicti.'.ont.(c?) And so it ought to be, if it be presented by the jury, or grand inquest, that the party liath forfeited his recog- nizance by breach of the peace, {e) Even where a party so bound is subsequently convicted at Petty Sessions of an assault, and the conviction is returned to the Quarter Sessions, the Justices there cannot order an estreat of the recognizance under 3 G. IV., c. 46, and the pro- ceeding must be by scire facias, as before that statute. (/) for the 199. Costs of exhibiting Articles of the Peace. — The at- torney for a wife who exhibits Articles of the Peace (-) 1 II".wK-. c. GO, s. 17. (a) Hawk. T5. 1, c. 60, p. 20. (6) Id. s. 21 ; E. v. Mcndez, 1 Stra. 473. (c) Hawk. IJ. 1. c. GO, h. 22. ((/) Id. s. 18. (c) Dalt. o. 119. (/) K<'(/. V. Yorkshire (West RuUmj Justices, in re Thornton,) 7 Ad. & 15. 583 ; and an order of Quarter Sessions for such estreat will be quashed on certiorari; but qu. — see 7 G. IV., c. G4, s. 31, In the text above, not there cited. 64 magistrate's hand-book. against her husband, may recover the costs of so doing from him, though he allows her a separate maintenance, (a). — Dickenson s Q. S. Where a person has caused another to be held in Recognizance of the Peace, and before the expiration of the period specified, is willing or desirous of relieving him from his responsibility thereunder, there would appear to be no legal objection to its being done ; this willing- ness, hpwever, should be expressed in wri ting anden- dorsedon the bond if still in the Magistrate's possession, or transmitted to the ofiice of the Clerk of the Peace, if bond has been transmitted as it should be immediately upon being taken, to that office. CONTEMPT- -POWER OF JUSTICES TO COM- MIT FOR. ii: A contempt is, in legal meaning, either an open resistance or insult vo the power of a court of record, committed by any person in the face of the court ; or a disobedience to its rules, orders or process, by a party who is not present in court. 4 Bl. Com. 283. So where abusive words are spoken to a Justice of the Peace, in the execution of his office, whilst sitting as a Magistrate, he may commit for the contempt ; but if the words are spoken of him behind his back, the party can then only be indicted. — R. v. Revel, Str. 420. A commitment by the sessions, or other court of record, need not be under seal, as the memorial thereof, which may at any time be entered of r cord, is sufficient without any w^arrant. — 1 Hale, 5b o», 0b4. But a Justice cannot commit for a con- tempt, except by warrant in writing. — Mayhew v. Loche, 7 Taunton, 63. And, unless the words be spoken under circumstances which render it probable they may pre- vent the due administration of justice, it will be safer for the Magistrate to abstain from summary punishment {a) Turner v. Rooks, 10 Ad. & E. 47 ; '1 P. & D. 294 ; 3 Campb. 326. in nmim: ■ »fwM ; ' M-w ■■ UW" " " - MAOISTRATE S HAND-BOOK. 66 COM- and proceed by indictment, which will certainly lie for words addressed to him while in the discharge of his duty. — Dickenson's Q. S., 6th ed. p. 392. If, however, the party be imprisoned instanter, the commitment must be for a time certain ; and a commitment, until the defendant is discharged by due course of law, is bad. — Rex. V. James, 5 B. & A. 894. It has been held, that a commitment which charged the party, generally, with having insulted Justices of the Peace in the execution of their office, without specifying what he said or did, is sufficient. — 2 Barnard, 155. It is, however, in general advisable to describe the oflFence concisely, but in sub- stance as in an indictment. — Chitty, C. L. p. 112. A Justice of the Peace may commit for contempt while in the execution of his office out of sessions, but the commitment must be by warrant in writing, and for a specified period. — Jones V. Glarford, Michs. 2 V. Cameron's Digest, 544. It seems the Justice has no power to fine, but only to commit. istrate, •ds are [n only jent by under lime be nt.— 1 la con- ioche, under |y pre- safer iment Va. 326. COMMITMENT FOR CONTEMPT. To the keeper of , County of ,\ Receive into your custody the body to wit. j of C. D. herewith sent you by me A. W. Esquire, one of her Majesty's Justices of the Peace in and for the said County, ard (convicted or charged, as the case may be) by me, the said Justice with contempt and indecent behaviour in my presence, by insulting and obstructing me, the said Justice, in the due execution of my office, as such Justice as aforesaid (and for saying, &c., in the presence and hearing of me, the said Justice, here set forth the particulars, if the Justice shall think it necessary,) and him the said C. D. detain in your custody, in the gaol aforesaid, for the space of hours, to be computed from the hour of o'clock, in the forenoon of this present day of instant, for his contempt aforesaid, (or until he find two sufficient sureties for his appearance at the next general i 66 magistrate's hand-book. Quarter Sessions of the peace for the said County, to answer to the charge aforesaid, or be otherwise discharged by due course of law.) Given under my hend and seal, at Toronto, in the said County, the day of [L. S.] Scandalous aspersions of a Magistrate in the execution of Mb office are regarded as criminal, and subject the offender to punishment, in the discretion of the Court in which he is convicted, — Holt on Lib. 153 ; 1 Russell, C. M. 328. And to these the rule is strictly confined, for, if the language, however opprobrious, apply only to the Justice in his private capacity, no indictment can bo supported ; so that if a man at a parish meeting, ^pply to an absent Magistrate abusive names, as if he says, "if he is a sworn Justice he is a rogue and a foresworn rogue," or if he apply to him the names of fool, coxcomb or blockhead, no indictable offence will have been com- mitted.— 2 Str. 1157-8; 2 Salk. 698; 2 Camb. 142. And it seems that to render any words thus indictable tbey must be spoken to the Magistrate and not in his absence.— 2 Camb. 142; 2 Str. 1157. B. v. Bead, 1 Str. ^l^-l.—DicTcemon's Q^S„ 6 Ed, DANGEROUS LUNATICS. The following is the " Act respecting the Confine- ment of Lunatics whose being at large may be dan- gerous to the public." — Con. Stats. C. c. 109, p. 1159. It will be observed that the Magistrate's duties and powers commence with section 7. Jury a^nitr 1. In all cascs where it is given in evidence upon the ongro^doftrial of any person charged with any offence, whether stete'so^in the same be treason, felony, or misdemeanor, that such their verdict. . i - «» . i_ • • e v person was msane at the time oi the commission oi sucu offence, and such person is acquitted, the jury shall bo retjuired to find especiaPy whether such person was % ill. ; ■^^-. «%«•''»*««*•• MAGISTRATE 8 HAND-BOOK. 67 afine- dan- 159. and the )ther Isuch mcli Ubo was insane at the time of the commission of such offence, and to declare whether he is acquitted by them on account of such insanity ; and if they find that such person was insane at the time of committing such offence, the court before whom such trial is had, st ill order such person to be kept in strict custody in such place and in such manner as to the court seems fit, until her Majesty's pleasure be known. — 14 & 15 V., c. 83, 8. 1. 2. The Governor may thereupon give such order for Qoyemor the safe custody of such person during her Majesty's S2ich perscL: pleasure, in such place and in such manner as to the safe cusfody! Governor seems fit. — 14 & 15 V., c. 83, s. 1. 3. In all cases where any person before the passing Governor of this act has been acquitted of any such offence on order-in ... n t •• what other the ground of insanity at the time of the commission cases, thereof, and has been detained in custody as a danger- ous person by order of the court before whom such person was tried, and still remains in custody, the Governor may give the like order for the safe custody of such person during the pleasure of her Majesty as he is hereby enabled to give in the cases of persons acquitted under the first section of this act, on the ground of insanity. — 14 & 15 V., c. 83, s. 1. 4. If any person indicted for any offence be insane, gimnar pro- and upon arraignment be so found by a jiiv v cmpannelled rMp^t to"^ for that purpose, so thp,t such person cannot be tried Sio^for*" upon such indictment, or if, upon the trial of any SSd found^to person so indicted, such person appears to the jury a jury?** ^ charged with the iiuVutment, to be insane, the court before whom such person is brou^ \t to be arraigned or is iried as aforesaid, mpy direct such finding i** be recorded, and thereupon may order such person to be kept in strict custody until her Majesty's pleasure be known.— 14 & 15 V., c. 83, s. 2. 68 magistrate's hand-book. K«M7cSirt ^* ^^ *°y P^^t'son chargad with an offence be brought J2,"t^'J^*n before any corvt to be discharged for want of prosecu- nui^^Uj ^^^^i *^^ ^^^^ person appears to be insane, the court '.l^all order a jury to be ompannelled to try the sanity of ouch person ; and if the jury so empannellcd find him to bf5 insane, the court shall order such persoL to !)e kept in strict custody in such place and la bd.. b manuer as to the court iicema fit, until her Majesty's pleasure be known.— 14 & 15 V., c. 83, s. 2. In lueh cat of intuity 6. In all cases of insanitv so found the Governor — *■ (»oT«rnor' may sjive such order for the safe custody, diTring her xnuf fife or- •' » ji o issj.fe. Majesty's pleasure, of the person eo foonil to be msane. in such place and in cuch manner as to him gesnv^ fit. —14 k 16 7., c. 83, s. 2. PtiMon* ciiijj. : If ft <<• persoa has been discovered and apprehended luUtwf by J. ^ " * . p .wtiuiw.. un(;er ^•iv{;un;,s;nnces that denote a derangement of mind, BOW b»J!f 'il«. "^^ and a pr pose <)f committing some crime, for which, if commitced, such person would be liable to be indicted, and any of her Maj( sty's Justices of the Peace before whom such person may be brought, thinks fit to issue a warrant for committing him as a dangerous person fc;'ispected to be insane, such cause of commitment being plainly expressed in the warrant, the person so com- mitted shall nol be bailed except by two Justices of the Peace, one whereof shall be the Justice who has issued such warrant, or by the Court of General Quarter Ses- sions, or in Lower Canada by one of the Judges of her Majesty's Court of Queen's Bench, or one of the Judges of her Majesty's Superior Court for that section of the Province, or in Upper Canada by one of the Judges of her Majesty's Superior Courts of law or equity at Toronto.- -14 & 15 v., c. 83, s. 3. 8. If any person, while imprisoned in ' prison or other place of confinement, under senter j death, or of imprisoin, nt, or under a charge y offence, or ^.•£^''■^-■^1^^ «(!«1l.-.:iraSMrH."««ite>PS magistrate's hand-book. 69 Ses. : her the ction ■f the w or m or or or for not finding bail for good behaviour or to keep theJJJJ^^^^Ij'J peace, or to answer a criming charge, or in consequence qlfiV^r^to"' of any summary convictio a or order of any Justice or ," "r borom- Justices of the Peace, or under any other than civil "^ "***""• process, appears to be insane, any two Justices of the Peace of the district, county, city, town or place where such person is imprisoned, of whom the chairman of the Quarter Sessions for the County, if in Upper Canada, or a Judge of the Superior Court if in Lower Canada, shall be one, shall inquire with the aid of two physicians or surgeons, as to the insanity of such person ; and if it be duly certified by such Justice and such physicians ^^ ^j^^j^ ^^j. or surgeons that such person is insane, the GrovernorjJJj"g*^***°'^^'* upon receipt of such certificate through the Provincial ^''g^^J.^jJ, Secretary, may direct by warrant under his hand and toVLMatlo privy seal, that such persons shall be removed to such -^^y*""- public lunatic asylum, or other proper receptacle for insane persons, as he may judge proper and appoint in that behalf.— 14 & 15 V., c. 83, s. 4. 9. Every person so removed under this act, or already There to re- removed, or in custody, by authority of the Governor, duly certified shall remain under confinement in such asylum or other proper receptacle as aforesaid, or in any other public lunatic asylum, or other proper receptacle to which such person may be removed, or in which he may be In custody by virtue of any like order, until it has been duly certified to the Governor through the Provincial Secretary, by two phycians or surgeons, that such per- son has become of sound mind, whereupon the Governor, if such person still remains subject to be continued in custody, may issue his warrant under his privy seal to the keeper rr other person having the care of any such ; ;ibli'j a&ylum or receptacle as aforesaid, directing that such person cljall be removed from thence back to the prison or other place f confinement from whence he was taken, or if the period of imprip.onment or custody of such person has expired, thi;t lie shall be discharged. —14 & is v., c. 83, s. 4. ■'^ 70 Dangerous Lunatics to be confined by warrant of J. P. magistrate's hand-book. 10. Any two or more Justices of the Peace, residing in the city, town, village, township, parish, or place where such lunatic or mad person may be found, of whom the chairman of the Quarter Sessions for the County, if in Upper Canada, or a Judge of the Supe- rior Court if in Lower Canada, shall be one, may, by warrant under their hands and seals, directed to the constables, or some of them, of any such city, town, village, township, parish or place, cause such person to be apprehended and kept safely locked up in some secure place within the district or the county where such city, town, village, township, parish or place lies, as such Justices under their hands and seals may direct and ap- point. — 14 & 15 v., c. 83, s. 5. i'l Andifneces- !!• If the last legal settlement of such person was in pjice'of set. any parish, town, or place within such district or county, and if such person be not then there, such person shall be sent to the plrce of his last legal settlement, and shall be locked up in manner aforesaid, by warrant of two Justices of the district or county to which such person is so sent, of whom the chairman of the Quarter Sessions for such last-mentioned county, if in Upper Canada, or a Judge of the Superior Courts, if in Lower Canada, shall be one, and the reasonable charges of removing, and of keeping, maintaining and curing of such person during such restraint (which shall be for and during such time only as such iunacy or madness continues) shall be satisfied and paid, (such charges being proved upon oath,) by order of two or more Justices of the Peace, directing the treasurer of the municipal cor- poration of the city, town, village, township, parish, or place where any goods, chattels, lands or tenements of Qoodsand ^, T-iii ini lands of such such person may be, to seize ana sell so mucn ot the luD&tiics how •/ ' disposed of. goods and chattels, or receive so much of the annual rents of the lands and tenements as may be necessary to pay the same, and to account for what is so seized, sold or received, to the next Quarter Sessions : hnt if •-^^^^■..-..'-Jr^fmit as: ' mfvmm9' \ iMm m ^jdt!*H MAGISTRA'rE'£; UANO-fiOOK. 71 Buch person hath not an estate to pay and satisfy the same, over and above what is sufficient to maintain his family, then .^ach charges shall be satisfied and paid by the city, town, village, township, parish or place to which such person belongs, by order of two Justices, directed to the treasurer of the Municipal Corporation thereof for that purpose. — 14 & 15 V., c. 83, s. 5. 12. The last preceding section of this act, shall not section u extend to restrain or abridge the prerogative of the strain or _ , , . ,. 1 /M o ^1 abridge the (jueen, or the power or authority oi the Court of Chan- prerogative eery in Upper Canada, or the Superior and Circmt^c Courts in Lower Canada, or of any Master or Judge thereof, or of any committee or curator appointed by or under the authority of the same, touching or concern- ing such last-mentioned lunatics, or to restrain or pre- vent any such committee or curator, or any friend or relation of such last-mentioned lunatics, from taking them under their own care and protection. — 14 & 15 V., c. 83, 8. 6. If )per )wer of of for less ;ing Is of 3or- or of Ithe lual jd, Jf 13. In all cases where any person is, by virtue of t>"^ , jtices to first, second, third, fourth, fifth and sixth sections -Mrju'mstM^ this act, kept in custody as a lunatic or insane person pew" Vs^lnd^ 11/. i 1. J x» J.V. /^ make order by order of any court, or by order of the Governor for their subsequent thereto, any two Justices of the Peace of the district or county where such person is so kept in cus- tody, of whom the chairman of the Quarter Sessions for the county, if in Upper Canada, or a Judge of the Superior Court of Lower Canada, shall be one, i?'"'^ -jy the best legal evidence that can be procured, euqaire into and ascertain the circumstances of personal legal disability of such lunatic, the place of the last legal settlement, and the circumstances of fuch person, and if it does not appear that he is possessed of sufficient p 'O^'orty which can be applied to his maintenance, may ii?rvke an order upon such city, town, village, township, parish or place where they adjudge him to be legally J - — * 72 magistrate's hand-book. settled, to pay such weekly sum for his maintenance while in the place of custody which the court or Gover- nor has appointed, as shall from time to time be fixed upon by tho Governor and by him directed in writing, through the Provincial Secretary. — 14 k 15 V., c. 83, 8. 7. In rertaln pasps allow- nuco >o be piiid by tho XrcHxurer, If person has gufflclfTi ♦ property (i pay hib , ' u exponsc. 14 VfiWT iic'i place of settlement cannot be ascer- taintid, such allowance shall be paid by the treasurer of the Municipal Corporation of the city, town, village, township, parish or place where such person has been apprehended. — 14 & 1 'J ^' > i. o3, s. 7. 15. If it appears that such person is possessed of sufficient property as aforesaid, then such Justices shall order and direct tho same to be applied to pay and satisfy the expense of the maintenance of such person, in the manner directed, in the case of lunatics and mad persons, by the eleventh section of this act. — 14 & 15 v., 0. 83, s. 7. Municipal 16. The Municipal Corporation of the city, town, CorporaUons u- • V i • V I. H -1 may appeal yiUaffe, township, parish or place m which the said Bfra'.ngt or- *-" t ' x ^ t (lerot J. p»., Justices adjudgo any lunatic to be legally settled, may appeal against such order to the general Quarter Ses- sions of the peace, to be holden for the district or county where such order has been made, in like manner and undo- like rostrictid ^< and regulations as against any other judgment, ordci or decision of a Justice or Justices, giving reasonable notice thereof to the Clerk of the Pea ; of such (^'"^.trict or county, who shall be respondent in such appeal, which saiu appeal the Justices of the Peace as. abled at the said general Quarter Sessions, are reby authorised and empowered to hear and determi. ., in he same manner as other appeals to Courts of Quarter Sessions are now heard and determined in Upper and Lower Canada respective- ly.— 14 & 15 v., c. 83. s. 7. »liv . .jTiMir'3t;,s:n MAGISTRATE S HAND-BOOK. 78 said may Ses- ct or inner ainst ce or )lerk shall the eral ered ther eard tive- 17. Every perse ** fall age who has been a resident J^J^^^^ |;^^ and inhabitant ol my city, town, village, township, ''"**• parish or place for one year, and the members of his family who have not gained a separate settlement, shall, for the purposes of this act, bo deemed settled in such city, town, village, township or place. — 14 & If) V., c. 83, s. 8. 18. A minor may be emancipated from his father, and iJettipment may gain a settlement in one or more of the following ^""^ ^* " ways, viz. : First. — If a female, by being married, and living for one year with her husband, in which case the husband's settlement shall determine that of the wife. Second. — If a male, by being married, and residing for one year separately from the family of his father. Third. — By beii bound as an apprentice, and serving one year as such under indentures of apprenticeship. Fourth. — By being hired and actually serving for one year for wages to be paid to such minor ; and a woman of full age, by marrying shall acquire the settlement of her husband, if he have any ; and until a person has gained a settlement in his own right, his settlement shall be deemed that of his father or mother. — 14 & 15 V., c. 83, s. 8. 19. No child born in any hospital, lunatic or other asylum, gaol, or house of correction, or other like place p'»<»»'^''*'» of reception or involuntary residence, and no child born 'y^'^^a «?-* while its mother is restrained of her liberty in virtue of "^°*°*' this act, shall gain any settlement, merely l)y reason of the place of such birth ; nor shall any reaidonce of any person as a lunatic in any such place of reception or involuntary residence as aforesaid operate to give such lunatic a settlement in the city, town, village, township, parish or pl< e where such actual residence may be had. —14 & 15 v., c. 83, s. 8. DEADLY POISONS— SALE OF. Our attention has been directed to this subject, and K 74 MAOISTRATE S HAND-BOOK. we would refer to the Consolidated Statute ot (Janada, c. 98, p. 1007, the provisiona of which are ntt ;,or(orally known. At all events, they are violated in every part of the country. This law, before the Consolidation, was by many persons supposed not to apply to Upper Canada, and the question, whether it did or did not, was in truth somewhat complex. The Commissioners for revising the Statutes appear, judging from the schedule, to have arrived at the conclusion that it did, on the strength of Stat. 14 & 15 v., ch. 61, sec. 5, 19 V., ch. 103. There is no doubt now that the law is in force in Upper, as well as Lower Canada, and the Consolidated Statutes not yet being generally distributed, persons may go on ignorantly violating the law, in the absence of a timely warning. We, therefore, give the substance of the enactment. Sec. 1. Prohibits Apothecaries, Chemists, Druggists, Vendors of Medicine and other persons^ from selling or delivering " any arsenic, corrosive sublimate, strychnine, or other poison, mineral, or vegetable, simple or com- posite, commonly known as deadly poisons, &c.," to any person who does not then produce and deliver a certifi- cate from a legally authorised Physician or Surgeon, or from some Priest or Minister resident in the locality, addressed to the person selling, and mentioning the name, residence, and business of the person requring the poison, and stating the purpose for which it is required, and that it ought to be sold. And this certificate or note is required to be kept by the person selling for his justification. The second section imposes a penalty of $40 on any person contravening the foregoing provision, and in de- fault of payment, authorises committal for three months to the Common Gaol. And section three, authorises prosecutions by a com- mon informer, (who gets half the penalty,) before a Justice of the Peace. ^ F^^ :U Stealing of ,.„ 19 Carrying certain unlawful weapons lo Common Schools '^pons... 19 Constables, appoin'tment"of ■'.'.'.'.■.'.'.'.';;* .^n Cost, nTT": ^^'"'''' '^PPoiotment'of pitiirr^^^^^"'^"---"^ to Justice? of the Peace.. Co-el, right of to be pre;;;;";::;; '"^^^^. °^" ^"'""ary conviction , No right to be present in Ex- 40 41 16 34 24 ant ^elonie.^^^ -ProceedingsbeforeJ.PS. in on information laid 2H oj. or o« Fees to Magistrates.. ' ' t ' ^^ - — ■Witnesses....;::;:::: °^' — ^ — Constables .. 'J'" ^^ — on levying distre^reTf^r^^^i/^ '^^ rents and penalties G. 15 Game Laws of Upper Canada.... ,0 Gunpowder . ^2 IS H. what amination in Indictable Wawkers and Pedlars ^"«"ces „, I Hiffhwnvs. PnKi.-. ....■■':::••'• " ~ ^ ""> ""ttyeiiing' '"ing or Bailing of Pris court oner, to Contempt, Pow mit for er 01 Justice to Com- 42 lated , rp^u- Indec ency. Immorality, &o. 64 1 Insulting languag, 13 19 13 13 magistrate's hand-book. 11. , ; ., if I. PAOK. Indictable Offences enumorated... 20 to 23 • , proceedings on ex- amination before J. Ps., in , 23 to 27 Counsel or attorney not allowed af; of rightin 24 Illegitimate Children, support of 38 Interference of Justices with each other 3G J. Justices of the Peace, who are 56 , Form of Cora- mission to ... 50 , Oath of proper- ty qualification 54 , Oath of office 55 , Allegi- ance 55 , Interference of with each other 35 Juvenile offenders 13 L. Landlord and Tenant, fraudulent re- moval of goods by Tenant, &c. ... 13 Licenses, shop and tavern 18 Lunatics, da ;erou8 6G Lock-up-houses 75 Lord's day, profanation of 77 M. Malicious injuries to property, wilh intent to steal 8 Malicious injuries to property, but with- out the intent to steal 9 Master and Servant, &c 19 Misdemeanours enumerated .... 22 and 23 , proceedings before J. Ps. in, on information laiii 23 to 27 P. Peace, binding over to keep ... 2G and 59 Petty trespasses to land 19 Poisons, deadly , 19 Petty Sessions, what 36 Power of J. Ps. to commit for contempt 64 Proceedings before J. Ps. on complaint made in any case, 2 ?, 24, 25, 26, 27 Profaaation of the Lord's day 77 Quarterly returns ^,y J. Ps. of sum- mary convictioas,aecessity of making 27 Q. PAOB, Quarterly Returns, form of 27 Quarter Sessions, Court of General ... 41 , Jurisdiction of 43 R. Religious Worship, disturbing persons assembled for ,.... 19 Returns of Summary Convictions should be made quarterly by J. Ps. 27 Returns of Summary Convictions, form of 27 Recorder's Court 41 , Jurisdiction of 43 S. Summary Jurisdiction, proceedings before J. Ps. in cases of, 23 to 27 — — ^ .Right of counsel or attorney to be present at 24 ■ Convictions, returns of to be made quarterly by J. P's 27 Search Warrant may issue on a Sun- day 27 Shipwrecked goods, unlawful posses- sion of, or offering for sale 19 Sunday, profanation of ... 7i' Strychnine & other deadly poisons 19 & 73 Support of illegitimate children 38 Special Constables, appointment of... 41 Slander, abuse, &c 26 T. Travelling on Public Highways regu- lated 19 Tolls on Turnpike Roads, exemptions from 58 U. Unlawful Weapons 19 W. Weapons, carrying certain prohibited 19 Weights aud Measures 20 Witnesses, compelling attendance of 39 , Binding over to prosecute and give evidence... 26 and 40 , to what court to be bound 26 , as to binding over married female 40 ^-=-= iufuni ... 40 -, fees, to 47 Warrant of any kind may issue on a Sunday 27 II. PAGE. 27 3eneral ... 41 5n of 43 ig persons 19 ivictions byJ. Ps. 27 victiona, 27 41 11 of 43 }ceedings JS of, 23 to 27 »f counsel ney to be at 24 3 of to be 27 a a Sun- 27 1 posses- 19 ... 7i' iisonsl9&73 eu 38 ent of... 41 26 i's regu- 19 mptions 68 19 )Mbited 19 20 ance of 39 osecute ..26 and 40 ! bound 26 narried 40 fuut ... 40 47 ae on a 27 4 . ' ..> ;^ ;,•""'■■ :"iSi{«fc-