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CHEWETT & CO., PUBLISHERS. 1865. # i Entered nccording to Act of Provincinl Legislature, in the year of our Lord one thousand eight liundrcd and sixty-five, by John McNab, in the Office of the Resfistrar of tltc Province of Canada. t W. C. CHKWETT A CO., PEINTERS, KINO STREET EASf, TOBONTO. s TO THE JUSTICES OF THE PEACE IN UPPER CANADA, THIS WORK ■ir n RESPECTFULLY DEDICATED BT THE AUTHOR, • PREFACE. Ill preparing this work for publication, the author has constantly kept in view the wants of the magistracy. His experience as crown attorney and clerk of the peatee. l^as shown him the necessity of some such publication ; and during its preparation he has received encouragement from many of the ablest Justices of the province, who have constantly assured him, that the " Magistrate's Manual" would supply a want but too deeply felt by all earnest in the performance of magisterial duties. It is due to the public, to state here, that the delay in publication was principally owing to the addition of about two hundred pages more than the book was originally intended to contain. Hitherto much of the law relating to offences, of which magistrates were cognizant,* j:ui- not been collected into any convenient form, but had to be sought out by reference tv Huch *'tliii^ they have otherwino autliority to tuko (ro<^!jizance " — (l*aley on Convictions), l^it tho Justicert murtt jndjjfo from nil tho circuinHtancert whether or not tho act was ho done, and they are not to take tl\e tnero statement of the defendant; and it wan hehl to be no proof of n hona Jide elaini nnhsistinpf, that Koveral persims other than tho individual eharn.«4 from tho Court of Chancery aj^ainst such parties (A*, v. Dodmn^ A. it p]. 7<)4 ; a. V. Wrottesleij^ 1 13. &. Ad. 648). The jurisdiction of the Justices is not to bo avoided by a mere fictitious pretence of title, and an assertion of rif^ht need not be regarded where the j)arty'8 own showing or other manifest circumBtances satisfy the Justices that the claim is wholly groundless (Paley's Convictions). The Justices must determine whether or not, upon the evidence before them, a hona Jide question of titlo is raised. But if the matter be doubtful, it is enough to stay the jurisdiction, and Justices cannot give themselves jurisdiction by an erroneous and capricious decision. Justices Interested. — A Justice should refrain from taking part in any matter in which he is individually interested, or where he is related to either party, or where he has advised upon the matter. Tho administration of justice should be free from suspicion ; and where the Justice has the smallest interest, as being a member of a company making a charge, he should withdraw from the bench during the hearing. However small the interest, it is enough to disqualify him from acting judicially. Refusal to Adjudicate. — If a Justice or Justices, from a mistaken opinion as to their jurisdiction, refuse to adjudicate, the Queen's Bench will interfere and compel them to shew cause why they should not hear and adjudicate. 2 ' 18 THB magistrate's MANUAL. Bji I in i! Conviction. — Tliis should be drawn up according to the rules under article " Conviction." When the Justice or Justices convict, or make an order against the defendant, the Statute requires that a minute or memorandum thereof shall then be made, for which no fee shall be paid ; and tlie conviction or order shall afterwards be drawn up by the said Justice or Justices in proper form, under his or their hand and seal or hands and seals ; and he or they sliall cause the same to be lodged with the Clerk of the Peace, to be by him filed among the records of the General or Quarter Sessions of the Peace. (Con. Stat. C. c. 103, p. 42.) Time is thus given the Justice to draw up his conviction or order in legal form. If by mistake the Justice does not draw up a correct conviction, he may draw up and file a new or amended conviction at any time before the appeal is entered with the Clerk of the Peace at the Sessions, and before the return of a oertiorat'i, although after a commitment, or after the penalty has been levied by distress, or after action brought against the magistrates. Order. — It is a summary award which Justices of the Peace by various statutes are empowered to make in a variety of cases that come before them. Such as under the Master and Ser- vants' Act, where tlie Justice makes an order on the master for payment of wages due to the seiwant. It is less formal and precise than a conviction. If an order be substantially right it is suflicient ; whereas in a conviction certainty, even technical precision is necessary. But there is this important distinction between a conviction and an order, with respect to the power of correcting one that is discovered to be infonnal. When the Justice makes an order and delivers it out he caimot afterwards draw up another in a more formal shape in substitution for one that is defective — a conviction being the record of a judgment, and not existing until it is made up ; but an order, being a direction to the party, which is complete as soon as it is drawn up and delivered (li. v. Justices of Cheshire, 8. B. & A. 439). An order for the payment of money may be bad in part and good for the residue. The maosim of the law-^the correct not made void by the incorrect — applies to orders. And where TBB BIAOISTRATB'S MANUAL. 19 the line of demarcation can be clearly pointed out (to use the words of Justice Erie) the order may be supported as to the good part. But there is no distinction between a conviction and an order with respect to the necessity of shewing jurisdic- tion on the face of them ; for it is of equal importance in both. Minute of Decision. — A minute of the decision should be made at the time by the Justice or Justices, but the written order may be drawn up and signed by the Justice or Justices on a subsequent day to the hearing, and it will relate back to the time of pronouncing the verbal order. A copy of the minute of an order must be served on the defendant before any warrant of commitment or distress is granted. (Con. Stat. C. c. 103, 8. 52). Commitment. — The offence for which the defendant is com- mitted should be stated in a warrant of commitment with ♦^he same clearness and precision as in a conviction. It should shew that the defendant has been convicted of an offence over which the Justice has jurisdiction. It was till lately a matter of doubt whether a Justice could substitute a good w arrant for a defec- tive one, and thereby justify the gaoler in detaining the defen- dant in prison ; but in the recent case of Ex parte Cross^ 4 J. P. 407, this doubt has been removed. In this case the first commitment of the defendant under the Vagrant Act was bad on the face of it ; but the court held, after argument, that the prisoner might be lawfully detained under a second warrant for the same offence, bearing date the same day as the first warrant, and lodged with the gaoler several days after ; having an endorsement requiring the gaoler to substitute the same for the first warrant. The court considered the decision in R. v. Richards^ 5 A. & E. 926, as an express authority in support of their judgment, and that it was good sense and good law. Consecutive Imprisonments. — ^When an offender is convicted at the same time of two or more separate offences in succession, and sentenced to imprisonment in each case, the practice to be adopted is to make out immediately separate warrants on each conviction — the second warrant stating that the imprisonment thereunder is to commence and take effect upon the expiration of the first. (Con. Stat. C. 103, s. 63.) 20 THE MAGISTRATE S MANUAL. There is another course that may be adopted, and that is— to direct (where the statute will sanction such an adjudication) the payment of the fine for the first offence immediately, and for the second offence within the time adjudged as the period of imprisonment for the first offence, with imprisonment in default of payment for a prescribed term. There is no legal objection to this course, but it allows the possibility of the offender paying the first fine and absconding before the time limited for payment of the second, and thereby escaping a con- tinuous unbroken imprisonment. Appeal. — The right of appeal lies against any order, deci- sion, or conviction of any Justice or Justices of the Peace, in any matter not being a crime by Con. Stat. U. C. c. 114, and against any summary conviction under the criminal acts (Con. Stat. C. c. 90, 91, 92, 93, 95, 96, 97, 98, by Con. Stat. C. c. 99 s. 117). Summary convictions for crimes not included in these statutes, and wherein the statute creating the offence does not give the right to appeal, it is conceived that no appeal lies ; but a certiorari lies unless expressly taken away. It is to be noted, that the mode of initiating an appeal against a summary conviction or decision under the criminal acts above men- tioned, is different to that against an order, decision or convic- tion in any matter not being a crime. Liability of Justices. — ^When Justices of the Peace are guilty of any gross act" of oppression committed by them in the exercise or alleged exercise of their magisterial duties, or are actuated by any vindictive or corrupt motive, they are liable to be punished by indictment or criminal information in the Court of Queen's Bench. Not Punishable for Errors of Judgment. — But the Judges have uniformly refused to punish or interfere with Justices for mere errors in judgment'^ and Lord Mansfield, C.J., declared that the court would never interpose its authority to punish a magistrate unless it was clearly shewn that he had acted partially, maliciously, or corruptly, and had consequently abused the trust reposed in him. THE magistrate's MANUAL. 21 Justices Liable to Actions. — Justices are liable to actions at law, in respect of proceedings by them which appear to be bad on the face of them, because they cannot justify under such proceedings. Protection of Justices. — The legislature, in addition to several protective clauses, inserted in acts giving summary jurisdiction, has by Con. Stat. U. C. c. 126 provided a sufficient protection to Justices to cover all errors of judgment in the performance of their duties, in respect to any matter within their jurisdiction. It must be alleged and proved that the act complained of was done maliciously^ and without reasonable and probable cause. But by sec. 2, where the act complained of has been done by the Justice in a matter where he had no jurisdiction, or in which he exceeded his jurisdiction, such allegation and proof are not necessary — any such action will not lie for any act done under any conviction or order until the conviction or order has been quashed, nor for any act done under a warrant to procure the appearance of the party, which shall be followed by a conviction or order in the same matter, until the conviction or order has been quashed. In concluding these prefatory remarks, and especially in connexion with the liability and protection of Justices, the judgment of Chief Justice Abbot in the case of R. v. Borrow, in the year 1820, contains much that should be gravely con- sidered and duly appreciated by every Canadian Justice : — " The application to this court is made against a gentleman *' who is one of that class of persons to whom this country is ^' under as great obligation as this or any other nation is, or ^' ever was to any members of its community. I speak of the " gentlemen resident in the different counties of England, who " act in the execution of His Majesty's Commission of the " Peace, and who gratuitously devote a great portion of their *' time, and bestow much valuable, but often thankless labour •*' in the administration of many branches of the law ; and " among others in most of the early, and in many of the mature " stages of our criminal jurisprudence. In this most valuable ^' class many persons are found who possess a sound knowledge 22 IHE MAOIStRATB'^& MANUAL^ " of the law, united with the most UBeful and extensive prac- " tical information. They are called upon in many caBes of a " difficult and in many of a delicate kind^ and are in general " addressed by those who apply to them with the respect that " is due to their station and character. They are indeed like " every other subject of this kingdom, answerable to the law "for the faithful and upright discharge of their trust and; " duties. But whenever they have been challenged upon thia " head, either by way of indictment, or criminal information,. " the question has always been, not whether the act done- " might, upon full and mature investigation, be found strictly " right, but from what motive it had proceeded, whether from " a diahonest, ojo^ressive or corrupt motive (under which " description fear and favour may generally be included), or "from mistahe or error j in the former case alone, have " they become the objects of pimishment. To punish as a " criminal any person who in the gratuitous exercise of a pubtic " trust, may have fallen into error or mistake, belwigs only to " the despotic ruler of an enslaved people, and is wholly abhor- " rent to the jurisprudence of this kingdom." {B. v. Borrow^ Esq. ZB.& Aid. 432L> [23] FORM OF COMMISSION OF THE PEACE. [l. 8.] MoNCK : — {pr as the case may he.) PROVINCE OF CANADA. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, &c. To (here follow the names). Know ye, that we have assigned you jointly and sesverally, and every one of you, our Justices to keep the peace in our count — of , in our said province of Canada, and to keep and cause to be kept all the 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 people concerning their bodies, or the firing of their houses 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 confine them in our prisons until they shall find such security, to cause to be safely kept. We have also assigned you, and every two or more of you, our Justices, to enquire more fully the truth by the oaths of good and lawful men of the count — aforesaid, by whom the truth of the matters may be the better known and enquired of, 3,nd all manner of felonies, poisonings, trespassings, regratings, engross- ings, and extortions whatsoever, and of all and singular the u THE MAGISTRAT 8 MANUAL. crimes and offences of which the Justices of the Peace may or ought hiwfully to enquire by whomsoever, and after what man- ner soev-er in tlie said count — had, done or perpetrated, or which liereafter shall there happen to be done or attempted ; and also of all those who in the aforesaid count — in com- panies, against our peace in disturbance of our people with armed force have gone or rode, or who hereafter shall presume to go or ride ; and also of all 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 victuallers, and all and sin- gular other persons, who in the abuse of weights and measures, or selling victuals against the form of the ordinances and statutes, or any one of them therefor made, for the common benefit of our people of our said province, have ofiended, or attempted, or hereafter shall presume in our said count- to offend or attempt ; and also of all sheriffs, bailiffs, constables, stewards, keepers of gaols, and other officers who, in the execu- tion of their offices about the premises, or any of them, have unduly behaved tliemselves, or hereafter shall presume to behave themselves unduly, or have been or hereafter shall happen to be careless, remiss, or negligent in our aforesaid — T — count — ; and of all and singular articles and circumstan- ces, and all otlier things whatsoever that concern the premises^ or any of them, by whomsoever and after what manner soever in our aforesaid count — done or perpetrated, or which hereafter shall happen to be done or attempted in what manner soever ; and to inspect all indictments 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 continue process thereupon against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted, until they can be taken, surrender tliemselves, or be outlawed ; and to hear and determine tid and singular the felonies, poisonings, trespasses, forestallings, regratings, engross- iiigs, extortions, unlawful assemblies, indictments aforesaid, and all and singular other the premises, according to the laws and statutes aforesaid, as it has been accustomed or ought 1 THE magistrate's manual. 25 to be done, and the same offenders, for their offences aforesaid, by fines, ransoms, amercements, forfeitures, or other means, accordinfij to the hiw and custom of that part of our said pro- vince called Upper Canada, and form of the ordinances and statutes aforesaid to chastise and punish. Provided always, that if a case of difficulty upon a determi- nation of any oi the premises before you, or any two or more of you, should happen to arise, then let judgment in no wise be given before you, or any two or more of you unless in the presence of one of our Justices of our Court of Queen's Bench, or one of our Justices 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 statutes, 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 inquiries, and all and singular the premises hear and determine, and perform and fulfill 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 amercements and other things to us thereunto belonging. For we have commanded and do hereby command our sheriff of our said count — , that at certain days and places which you or any such two or more of you as is aforesaid 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 premises, shall be better known and enquired into. In testimony whereof, we have caused these our letters to be made patent, and the great seal of our said province to be hereunto afhxed : Witness, our right trusty and well-beloved {]iere folloio tJie name, style and title of the Governor), Gover- nor General of British Korth America, and Captain General and Governor-in-Chief ii and over our provinces of Canada, Kova Scotia, Kew Brunswick, and the Island of Prince 26 THE MAGISTBATB's MANUAL. Edward, and Vice Admiral of the same, &c., at , in the year of our Lord one thousand eight hundred and , and in the year of our reign. By command, , Secretary. The commission, as above, under the great seal, includes all the names of those intended to be thus honoured by Her Majesty, and is transmitted to the office of the Clerk of the Peace for the county, and there filed of record. I [27] DUTIES OF JUSTICES OF THE PEACE. CON. STAT. C, CAP. CII. AK ACT RESPECTING TBE DUTIES OF JUSTICES OF THE PEACE, OUT OF SESSIONS, IN RELATION TO PERSONS CHARGED WITH INDICTABLE OFFENCES. Her Majesty^ hy and with the advice and consent of the Legis- lative Council and Assembly of Canada, enacts as follows : 1. In all cases where a charae or complaint (A) isForwhatofreHces ® . a Justice of the made before any one or more of Her Maiesty's Jus- pw"* may grant •' '''',» warrant to tices of the Peace for any territorial division in this «»'>■« « pew<« •^ ... charged there- province, that any person has committed, or is sus- '^^ v*^*, pected to have committed, any treason, or felony, or *»i™' any indictable misdemeanor or offence within the limits of the jurisdiction of such Justice or Justices of the Peace, or that any person guilty or suspected to be guilty of having conmiitted any such crime or offence elsewhere out of the jurisdiction of such Jus- tice or Justices, is residing or being, or is suspected to reside or be within the limits of the jurisdic- tion of such Justice or Justices, then, and in every such case, if the person so charged or complained against is not in custody, such Justice or Justices of the Peace may issue his or their warrant (B) to apprehend such person, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices for the same territorial division. 2. In all cases, the Justice or Justices to whom J? »!>•* »»• , , ' the party mair the charge or complaint is preferred, instead of issu- j^gJ^"JJ*|J2j, ing in the first instance his or their warrant to appre- fl^^StiiS "** 28 THE magistrate's manual. liend the person so cliarged or complained against, may, if ho or they think lit, issue his or tlieir sum- mons (C) directed to such person, requiring him to appear before the said Justice or Justices, at the time and place to be therein mentioned, or before such other Justice or Justices of the same territorial division as may then be there, and if, after being served with such summons in manner hereinafter mentioned, he fails to appear at such time and place, in obedience to such summons, the said Justice or Justices, or any other Justice or Justices of the Peace for the same territorial division, may issue his or their warrant (D) to apprehend such person so charged or complained against, and cause such person to be brought before hin. or them, or before some other Justice or Justices of the Peace for the same territorial division, to answer to the said charge or complaint, and to be further dealt with according to law ; but any Justice or Justices of the Peace may issue the warrant hereinbefore first men- tioned, at any time before or after the time men- tioned in such summons for the appearance of the said accused party.* Warrant to 3. In caso an indictment be found by the grand apprehend party . . , e» i i • against whom an jury in any court 01 oyer and termmer or gen- hidictment is,,,,. . ,/? i found. eral gaol delivery, or in any court oi general or quarter sessions of the peace, against any person then at large, and whether such person has been bound by any recognizance to appear to answer to any such charge or not, and in case such J)erson has not appeared and pleaded to such indictment, the person who acts as clerk of the Crown, marshal, or clerk of assize at such court of oyer and terminer, or gaol delivery, or as Clerk of the Peace at such ses- sions, shall, at any time after the end of the sessions * Though power is by the above section given to the Justice of the Peace, " in all cases" to issue his summons, yet, it should not be issued in any case of trea^ fion or felony. THK MAOISTR.Me'b MA^' At. W of oyer and terminer, or gaol delivery, or .session -4 the peace, at which Bucli indictment has been to"' .d, upon a])plication of the prosecutor, or of any jx "U on his behalf, and on payment of a fee of t\\\ iity cents, grant unto such prosecutor or person a ccrtiii- cate (F) of such indictment having been found ; and upon production of such certificate to any Justice or Justices of the Peace for the territorial division in which the offence is in such indictment alleged to have been committed, or in which the person indicted resides, or is supposed or suspected to reside or be, such Justice or Justices shall issue his or their warrant (G) to apprehend the person so indicted, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices for the same territorial division, to be dealt with according to law.* 4r. If such person be thereupon apprehended and Oommitment- brought before any such Justice or Justices, such Justice or Justices, upon its being proved upon oath or affirmation before him or them that the person so apprehended is the person charged and named in such indictment, shall without further inquiry or examination, commit (11) him for trial or admit him to bail in manner hereinafter mentioned.f 5. If the person so indicted is confined in any gaol be already in or prison for any other onence than that charged m other offence, •*• " , , ^ Justice may such indictment at the time of such application and of^er him to be , *^ *■ ^ detained until production of sucli certificate to such Justice or Jus- remored by writ ^ ^ ^ ^ of habtai corpus, tices as aforesaid, such Justice or Justices, upon its "h^^'e"^*** ^^ * Whenever a prosecutor shall have preferred a bill of indictment against a defendant, and shall move the court for process to issue upon the said indictment against the said defendant, the prosecutor so applying should before such process issue, himself enter into such recognizance as the court shall direct, to prosecute the law with effect against the said defendant. (Dickinson's Quarter Sessions, by Tyrwhitt, page 228, and note H.) The Clerk of the Peace should keep blank warrants to apprehend, to be issued under this section, and also the warrant of commitment to be issued by the Jus- tice under the 4th section ; and should cause a copy of each to accompany each certificate under the third section. f Though it would from this section appear that a Justice can bail a prisoner 10 THE MAOtSTBATE^S MANUAL. being proved before him or them upon oath or affirm- ation, that the person so indicted and the person so confined in prison are one and the same person, shall issue his or their warrant (I), directed to the gaoler or keeper of the gaol or prison in which the person BO indicted is tlien confined as aforesaid, command- ing him to detain such person in his custody, until, by Her Majesty's writ of habeas corpus^ he be removed therefrom for this purpose of being tried upon the said indictment, or until he be otherwise removed or discharged out of his custody by due course of law. Kot to prevent 6. Kotliiug hei^eiubefore contained shall prevent bench warrauti. the issuuig or cxccution 01 bcncli Warrants, when- ever any court of competent jurisdiction thinks proper to order the issuing of any such warrant.* 7. Any Justice or Justices of the Peace may grant or issue any warrant as aforesaid, or any search warrant on a Sunday, as well as on any other day. WhenadurueiB 8. In all cascs whcn a charge or complaint for an JSSVtobT*" indictable offence is made before any Justice or Jus- ttoSriolrSSr" tices aforesaid, if it be intended to issue a warrant oath, Ac .^ ^1^^ g^g^ instance against the party charged, an information and complaint thereof (A) in writing, on the oath or affirmation of the informant, or of Warrant may \» isRued on Sunday. brotkght before him, upon a warrant issued under the authority of the second Bection of this Act, yet, upon perusal of section 62, it will be found that, in oases of felony, they cannot bail, because they cannot peruse the evidence and decide that it " does not furnish such a strong presumption of g^ilt as to warrant his committal for trial." * When the party indicted is under recognizance to appear at the sessions at which the indictment is found, no process should be had a^inst him during the session, because it is looked on, in law, as one day, whatever may be its dura- tion, and the defendant has the whole of it in which to make his appearance ; but if he has not appeared, the prosecutor may bespeak a bench warrant during the session, which will, it is said, be issued at the close thereof. If no bench warrant be applied for before sessions are over, the certificate pro- vided for by the third section should issue. (Dickinson's Quarter Sessions, 280, 2 Hawkins, oh. 27, sec. 8>) rtSa Tllfi MAOIBTRAtK^g MANUAL* 81 Bomo witnefis or witnesses in that behalf) sliall be laid before such Justice or Justices.* 9. When it is intended to issue a summons instead when ir rom. , moiia to b« iMoed of a warrant in the first instance, the information >•"''•'•«»"'» *•'• and complaint shall also be in writing, and be sworn J^ i^j^^J** ""* ^ to or atlirmed in manner aforesaid, except only in cases where by some Act of Parliament it is speijially - provided that such information and complaint may be by parole merely, and without any oath or affir- mation to support or substantiate the same."* 10. No objection shall be taken or allowed to any No otjection kI- , . « .. 1 • i. !• 11 1 J i» •; lowed for alleged such intormation or complamt tor any alleged detect Mtct in form or therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution, before the Justice or Justices who takes the examination of the witnesses in that behalf as hereinafter mentioned. 11. If a credible witness proves upon oath before a Justice of the Peace, that there is reasonable cause to suspect that any property whatsoever, on or with respect to which any larceny or felony has been committed, is in any dwelling house, outhouse, gar- den, yard, croft, or other place or places, the Justice may grant a warrant (E 2) to search such dwelling house, garden, yard, croft, or other place or places, for such property. 12. Upon such information and complaint being 60 laid as aforesaid, the Justice or Justices receiving the same may, if he or they think fit, issue his or their summons or warrant, as hereinbefore directed, to cause the person charged to be and appear before him or them, or any other Justice or Justices of the Peace for the same territorial division, to be dealt In certain caaM* Justice may grant a warrant to March dwel* ling houw, Ac. Upon complaint heing laid, Jua- tlcea receiving the Bame may issue summon! or warrant for appearance of IMirty charged* * The marginal notes to sections 8 and 9 are calculated to mislead, by causing the person perusing them to entertain the opinion that an information need not be upon oath unless a warrant is to be issued ; whereas, the information must be In writing and upon oath, in all cases except those specially provided for, such a9 the case of cruelty to animals. 82 THE magistrate's manual. How Rnmmona to be served. Constables, tc., to attend and depoBO, If party Mitn- tnoned do not attend, Justice may issue a war- rant to compel attendance. Noolijectlon al- lowed fur alleged defect in ibrm or Bttbstance. witli according to law : and every summons (C) shall be directed to the party so charged in and by siich information, and shall state shortly the matter of snch information, and shall require the party to whom it is directed to be and appear at a certain time and place therein irentioned, before the Justice wlio issues such summons, or before such other Jus- tice or Justices of the Peace for the same territorial division as may then be there, to answer to the said charge, and to be further dealt with according to law. 13. Every such summons shall be served by a constable or other peace officer upon the person to whom it is directed, by delivering the same to the party personally, or if he cannot conveniently be met with, then by leaving the same for him with some person at his last or most usual place of abode. 14. The constable or other peace officer who serves the same in manner aforesaid, shall attend at the time and place, and before the Justice or Jus- tices in the said summons mentioned, to depose, if necessary, to the service of such summons. 15. If the person served does not appear before such Justice or Justices, at the time and place men- tioned in such summons, in obedience to the same, such Justice or Justice may issue his or their war- rant (D) for apprehending the party so summoned, and bringing iiim before such Justice or Justices, or before some other Justice or Justices for the same territorial division to answer the charge in the in- formation and complaint mentioned, and to be further dealt with according to law. 16. No objection shall be taken or allowed to any such summons 'or warrant for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecutor before the Justice or Justices who tiiE magistrate's manual. 33 takes the examination of the witnesses in that behalf as hereinafter mentioned. 17. If it appears to tlie Justice or Justices that " ^^"J^j" *U;^ the party charged has been deceived or misled l>yjJ„JIn"theSieto any such variance, such Justice or Justices, at the •'"*»" «*»y- request of the party so charged, may adjourn the hearing of the case to some future day, and, in the meantime, remand the party or admit him to -bail in manner hereinafter mentioned. 18. Every warrant (B) hereafter issued by any wammt to •!»- ,. X. /.i-r. 11 prehend parties Justice or Justices oi the reace to apprehend any to be under the ,•*• •' hand and seal of person charged with any indictable offence, shall be Justice, under the hand and seal, or hands and seals, of the Justice or Justices issuing the same, and may be directed to all or any of the constables or other peace officers of the territorial division within which the same is to be executed, or to such constable and all other constables or peace officers in the territorial division within which the Justice or Justices issuing the same has jurisdiction, or generally to all tlie constables or peace officers within such last men- tioned territorial division ; and it shall state shortly the offence on which it is founded, and ohall name ^ or otherwise describe the offender, and it shall order the person or persons £o whom it is directed to appre- hend the offender, and bring him before the Justice or Justices issuing such warrant, or before some other Justice or Justices of the Peace for the same territo- rial division, to answer to .the charge contained in the said information, and to be further dealt with according to law. 19. It shall not be necessary to make such war- warrant may rant returnable at any particular time, but the sameSTux^S may remain in force until executed. 20. Such warrant may be executed by apprehend- How and where ing the offender at any place in the territorial divi-SlSSSSi""'^'^ sion within which the justice or justices issuing the 8 34 THE MAGISTRATE S MANUAL. i same have jurisdiction, or in case of fresh pursuit, at any place in the next adjoining territorial division, and within seven miles of the border of such first mentioned territorial division, without having such warrant backed, as hereinafter mentioned, onwhatcondi- 21. In case any warrant be directed to all consta- tione constables, ,, , ~j > ,^ . .,.■,■,... Ac. may execute blcs or othcr pcacc oflicers m the territorial division within which the Justice or Justices have jurisdic- tion, any constable or other peace officer for any place within such territorial division may execute the warrant at any place within the jurisdiction for which the said justice or justices acted when he or they granted such warrant, in like manner as if such warrant had been directed specially to such consta- ble by name, and notwithstanding the place within which such warrant is executed be not within the place for which he is constable or peace officer. No objection ri- 22. No objectiou shall be taken or allowed to any lowed for alleged , ^ ji»i..i •• i. defect la form or sucli waiTaut lor any detect therem, in substance or sabstance. • n i? • i ■ •• ^ .^ • in lorm, or lor any variance between it and the evi- dence adduced on the part of the prosecution, before the justice or justices who takes the examination of the witnesses in that behalf as hereinafter mentioned. If TMianoe ap- 23. If It appears to the Justice or Justices that the uSIi! the*:? may party cliargcd has been thereby deceived or misled toa*fa?ure*dayf by any such variance, such justice or justices, at the request of the party charged, may adjourn the hear- ing of the case to some future day, and in the mean- time may remand the party, or admit him to bail in manner hereinafter mentioned. 24. If the person against whom any such warrant has been issued, cannot be found within the jurisdic- tion of the Justice or Justices by whom the same was issued, or if he escapes, goes into, resides, or is sup- posed or suspected to be, in any place within this province, whether in Upper or in Lower Canada, out of the jurisdiction of the Justice or Justices issu- ■ ItendatloM as to ttie backing «fwamnta. ^^a THE MAGISTRATE'S MANUAL. 35 ■'SI r. i ing sticli warrant, any Justice of the Peace within the jurisdiction of whom such person so escapes or goes, or in which he resides, is, or is supposed or ^ suspected to be, upon proof made on oath of the hand-writing of the Justice who issued the same, and without any security being given, shall make an endorsement (K) on such warrant, signed with hia name, authorizing the execution of such warrant within the jurisdiction of the Justice making such endorsement, and which endorsement shall be suffi- cient authority to the person bringing such warrant, and to all other persons to whom the same was origi- nally directed, and also to all constables and other peace officers of the territorial division where such warrant has been so endorsed, to execute the same in such other territorial division, and to carry the per- son against whom such warrant issued, when appre- hended, before the Justice or Justices of the Peace who first issued the said warrant, or before some other Justice or Justices of the Peace for the same territorial division, or before some Justice or Justices of the territorial division, where the ofience men- tio>:.ed in the said warrant appears therein to have been committed. 25. If the prosecutor or any of the witnesses upon Duty ot consta- the part of the prosecution be then in the territorial arrest, division where such person has been so apprehended, the constable, or other person or persons who have apprehended him may, if so directed by the Justice backing the warrant, take and convey him before the Justice who backed the warrant, or before some other Justice or Justices for the same territorial divi- sion or place ; and the said Justice or Justices may thereupon take the examination of the prosecutor or witnesses, and proceed in every respect in manner hereinafter directed with respect to persons charged before a Justice or Justices of the Peace, with an offence alleged to have been committed in another 1 1 ! I ; 36 'i'HE MAGISTRATE'S MANtTAl!,. territorial division than that in which such pei^ontf have been apprehended. Power to Justices 26. If it bc made to appear to any Justice of the neaaes to attend Peace, by the oath or affirmation of any credible dence. persou, that any person within the jurisdiction of N such Justice is likely to give material evidence for the prosecution, and w^'U not voluntarily appear for the purpose of being examined as a witness at the time and place appointed for the examination of the witnesses against the accused, such Justice shall issue his summons (L 1) to such person under his hand and seal, requiring him to be and appear at a time and place mentioned in the summons, before the said Justice, or before such other Justice or Justices of the Peace for the same territorial division as may then be there, to testify what he knows concerning the charge made against such accused party. If summonB not 27. If any person so summoned neglects or refuses majbetora^'toto appear at the time and place appointed by the compel attend- .-, j«i ^ jar j i> r. said summons, and no just excuse be ottered tor such neglect or refusal, then (after proof upon oath or affirmation of the summons having been served upon such person, either personally or with some person for him at his last or most usual place of abode,) the Justice or Justices before whom such person should have appeared, may issue a warrant (L 2) under his or their hands and seals, to bring such person, at a time and place to be therein mentioned, before the Justice who issued the said summons, or before such other Justice or Justices of the Peace for the same territorial division as may then be there, to testify as aforesaid, and which said warrant may, if neces- sary, be backed as hereinbefore mentioned, in order to its being executed out of the jurisdiction of the Justice who issued the same. 28. If the Justice be satisfied by evidence upon oath or affirmation that it is probable the person will not attend to give evidence unless compelled so aBce. In certain cases, warrant may issue in first instance. "A ■ .i: ^rf THB magistrate's MANUAL. 37 to do, then, instead of issuing such summons, the Justice may issue his warrant (L 3) in the first in- stance, and the warrant, if necessary, may be backed as aforesaid. 29. If on the appearance of the person so sum- PerMos appear- 1 ., , . IT . T ing on Kiminoiii moned before the said last mentioned Justice or Jus-andrefngingto be examined may' tices, either in obedience to the said summons or be committed, upon being brought before him or them by virtue of the said warrant, such person refuses to be ex- amined upon oath or affirmation concerning the premises, or refuses to take such oath or affirmation, or having taken such oath or affirmation, refuses to answer the questions concerning the premises then put to him without giving any just excuse for such refusal, any Justice of the Peace then present #id there having jurisdiction, may, by warrant (L 4) under his hand and seal, commit the person so refus- ing to the common gaol or house of correction for the territorial division where the person so refusing then is, there to remain and be imprisoned for any time not exceeding ten days, unless he in the mean- time consents to be examined and to answer con- cerning the premises. 30. In all cases where any person appears or is As to the 1 1 . 1 o T ' T. n I -n examination of brought beiore any Justice or Justices oi the reace witnesses, charged with any indictable offence, whether com- mitted in this province or upon the high seas, or on land beyond the sea, or whether such person appears voluntarily upon summons or has been apprehended, with or without warrant, or is in custody for the same or any other offence, such Justice or Justices before he or they commit such accused person to prison for trial, or before he or they admit him to bail, shall, in the presence of such accused person, (who shall be at liberty to put questions to any wit- ness produced against him,) take the statement ( M ) on oath or affirmation of those who know the facts and circumstances of the case, and shall put the 88 THE magistrate's MANUAL. JnRtioe to adinl* niit«r oath or affirmation. same in writing, and strch depo8ition8 shall be read over to and signed respectively by the witnesses so examined, and shall be signed also by the Justice or Justices taking the same.* 31. The Justice or Justices before whom any such witness appears to be examined as aforesaid, shall,, before such witness is examined, administer to such witness the usual oath or affirmation, which such Justice or Justices are hereby empowered to doj and if upon the trial of the person so accused as first aforesaid,, it be proved upon the oath or affirmation of any credible witness, that any person whose depo- sition has been taken as aforesaid is dead, or is so ill asipot to be able to travel, and if it be also proved that such deposition was taken in presence of the person so accused, and that he, his counsel or attor- ney, had a full opportunity of cross-examining the witness, then if such deposition purports to be signed by the Justice by or before whom the same purports to have been taken, it shall be read as evidence in such prosecution without further proof thereof, unless, it be proved that such deposition was not in tact signed by the Justice purporting to have signed the same.* After examina- 32. After the examinations of all the witnesses cused, Justice to on the part of the prosecution as aforesaid have been taken 'ap!«n«t°* Completed, the Justice of the Peace, or one of the him and caution t i.« u il £> i i ' ,.• i him aa to any J usticcs by or Deiore whom such examinations nave may make. bccu 80 Completed, shall, without requiring the attendance of the witnesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect: "Having heard the evidence, do you wish CO say anything in answer to the charge ? You * The perusal of form " M," referred to in sec. 30, is calculated to lead the Justice to suppose that it is only necessary for him to sign his name at the bottom of the depositions of all the witnesses, in the case examined before him on the same day ; whereas, he should sign his name at the bottom of the deposition of each witness.. THB MAaiSTRATE'S MANUAL. 39 you You i are not obliged to say anything unless you desire to do so ; but whatever you say will be taken down in writing, and may he given in evidence against you upon your trial :" and whatever the prisoner then says in answer thereto shall be taken down in writ- ing (N) and read over to him, and shall be signed by the said Justice or Justices, and kept with the depo- sitions of the witnesses, and be transmitted with them as hereinafter mentioned.* 33. Upon the trial of the accused person, the exa- ExMninationa ./> ■,.,,■, miiv be given In mmations may, it necessary, be given m evidence evidence in cer- against him without further proof thereof, unless it be proved that the Justice or Justices purporting to have signed the same, did not in fact sign the same. 34. The said Justice or Justices, before such nxpianations to accused person makes any statement, shall state to aceu^a party" him and give him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of his guilt, but that what- ever he then says may be given in evidence against him upon his trial, notwithstanding such promise or threat. 35. Nothing herein contained shall prevent any Nothing herein , n ... .1 1 . . contained to pre* prosecutor irom giving m evidence any admission or tent prooecutlor confession, or other statement made at any time by evidence confes- the person accused or charged which by law would ^ °"' be admissible as evidence against him. 36. The room or building in which the Justice or piace where exa- Justices take the examinations and statement as Ulliran "pen *° aforesaid, shall not be deemed an open court for ^"gon to remain ai, „ 1. -I 1 X . • T i • • 1 • without consent. tuat purpose; and such Justice or Justices, in his or their discretion, may order that no person shall have access to or be or remain in such room or build- ing, without the consent or permission of such Jus- ^ * After the Justice gives the caution under this section, he should continue and give the explanation directed by section 34. 40 THE MAGISTRATE 8 MANUAL. ii' tice or Justices, if it appear to him or them tliat the ends of justice will be best answered by so doing. Power to junticei 37. Any Justice or Justices before whom any proMcutors and witncss Is examined as aforesaid, may bind by recoff- recogniMnco. nizaucc (O 1) the prosecutor, and every such witness to appear at the next court of competent criminal jurisdiction at which the accused is to be tried, then and there to prosecute, or prosecute and give evi- dence, or to give evidence {as the case may he), against the party accused, which said recognizance shall par- ticularly specify the profession, art, mystery or trade , of every such person entering into or acknowledging the same, together with his Christian and surname, and the parish, township or place of his residence, and if his residence be in a city, town or borough, and when convenient so to do, the name of the street and the number (if any) of the house in which he resides, and whether he is owner or tenant thereof, or lodger therein. Recojrnizances to 38. The Said recognizauce, being duly acknow- be Fobsnribed to . , by juHtices, Ac. Icdgcd by the person entering into the same, shall be subscribed by the Justice or Justices before whom the same is acknowledged, and a notice (O 2) thereof, signed by the said Justice or Justices, shall at the same time be given to the person bound thereby. 39. The several recognizances so taken, together with the written information (if any), the deposi- tions, the statement of the accused, and the recog- nizance of bail (if any) shall be delivered by the said Justice or Justices, or he or they shall cause the same to be delivered to the proper officer of the court in which the trial is to be had, that is to say, in Upper Canada, to the County Attorney for the county, without delay, and in Lower Canada, to the proper officer, before or at the opening of the court, on the first day of the sitting thereof, or at such other time as the Judge, Justice, or person who is to RecogniunoeR to be transmitted to the court in which the trial is had. TIIE ^magistrate's MANUAL. 41 preside at such court, or at the said trial, orders and appoints. 40. If any such witness refuses to enter into or witnew refuBing , . /, • J 1 T *" enter into re- ackowledire such recognizance as aioresaid, the J us- eogniunce may o o ^ ' be committed. tice or Justices of the Peace by his or their warrant (P 1), ma^'- commit him to the common gaol or house of correction for the territorial division in which the accused party is to be tried, there to be imprisoned and safely kept until after the trial of such accused party, unless in the meantime such witness duly enters into such recognizance as aforesaid before some one Justice of the Peace for the territorial division in which such gaol or house of correction is situate. 41. If afterwards, for the want of sufficient Diwhargev evidence in that behalf, or other cause, the Justice or Justices before whom such accused party has been brought, does not commit him or hold him to bail for the offence charged, such Justice or Justices, for the same territorial division, by his or their order (P 2) in that behalf, may order and direct the keeper of such common gaol or house of correction where such witness is in custody, to discharge him from the same, and such keeper shall thereupon forthwith discharge him accordinelv. 42. If from the absence of witnesses, or from Power to Jnttfce any other reasonable cause, it becomes necessary or accuMd'Vrom* J ' -lA , 1 n .1 ... j:«,i • time to time not advisable to deter the examination or lurther exami- exceeding eight nation of the witnesses for any time, the Justice or *^' ' ^"f" Justices before whom the aecus^ed appears or has been brought by his or their warrant (Q 1) may from time to time remand the party accused for such time as by such Justice or Justices in their discretion may be deemed reasonable, not exceeding eight clear days at any one time, to the common gaol, or house of correction or other prison, lock-up house, or plade of security in the territorial division for which such Justice or Justices are then acting. 4d THE MA0I8TKATE 8 MANUAL. If remand be for 43. If tliG remand be for a time not exceeding byTeJbS'ordir! three clcar days, such Justice or Justices may ver- bally order the constable or other person in whose custody such accused party may then be, or any other constable or person to be named by the Jus- tice or Justices in that behalf, to continue or keep such accused party in his custody, and to bring him before the same or such other Justice or Justices as may be there acting at the time appointed for con- tinuing the examination. But accused may 44. Any sucli Justicc or Justiccs may order such an earUer day. accuscd party to be brouglit bcforc him or them, or before any other Justice or Justices of the Peace for the same territorial division, at any time before the expiration of the time for which such party has been remanded, and the gaoler or officer in whose custody he then is shall duly obey such order. Party accused J 45. Instead of detaining the accused party in cus- may be admitted .ti»,i 'jj* i»-i_ i j a to boil on the tody during the period tor which such accused party examination. ,, jj r^'i? iiT» has been so remanded, any one Justice oi the Feace before whom such party has so appeared or been brought as aforesaid, may discharge him upon his entering into a recognizance (Q 2, 3) with or with- out a surety or sureties, at the discretion of such Justice, conditioned for his appearance at the time and place appointed for the continuance of the examination. ifiMirty doeinot 46. If such accuscd party does not afterwards appear upon , x »/ recognizance, in appear at the time and place mentioned in such U.C. the Justice ^^ . . . tt ^ i i -it may transmit the recognizance, thcu, in Upper Canada, the said Jus- BADlB CO 1116 v/lQIrK r» ^ ^-^ t of the Peace, ticc or any other Justice of the Peace who may then and there be present, having certified (Q 4) upon the back of the recognizance the non-appear- ance of such accused party, may transmit the recog- nizance to the Clerk of the Peace for the territorial division within which the recognizance was taken, to be proceeded upon in like manner as other recog- THE MAOISTBATe's MANUAL. 43 nizances, and such certificate shall be deemed suffi- cient j^rmayact^ evidence of the non-appearance of the said accused party. 47. Whenever a person appears or is brought if « pwrwnj* before a Justice or Justices of the Peace in the ter- in one dituion, ritorial division wherein such Justice or Justices ""f nee commit. ted Id another, have jurisdiction, charged with an offence alleged ^^^^.J^^^t^ have been committed by him within any territorial former- division wherein such Justice or Justices have not jurisdiction, such Justice or Justices shall examine such witnesses and receive such evidence in proof of the said charge as may be produced before him or them within his or their jurisdiction ; and if in his or their opinion such testimony and evidence be sufficient proof of the charge made against the accused party, such Justice or Justices shall there- upon commit him to the common gaol or house of correction for the territorial division where the oifence is alleged to have been committed, or shall admit him to bail as hereinafter mentioned, and shall bind over the prosecutor (if he has appeared before him or them) and the witnesses by recogni- zance as hereinbefore mentioned. 48. If such testimony and evidence be not, in the And if eridenw /. , T i.' T i." ai ' i. J. i ""' deemed suffl- opmion of such Justice or Justices, sumcient to put dent, may be the accused party upon his trial for the offence with the proper dw- which he is charged, then the Justice or Justices shall, by recognizance, bind over the witness or wit- JJIJ®^^^"^^'^ nesses whom he has examined to give evidence as *'^^»*"^'^^"***' hereinbefore is mentioned ; and such Justice or Jus- tices shall, by warrant (R 1) under his or their hand and seal or hands and seals, order the said accused party to be taken before some Justice or Justices of the Peace in and for the territorial division where the offence is alleged to have been committed, and shall at the same time deliver up the information and complaint, and also the depositions and recog- 44 THE MAGISTRATE'S MANUAL. nizancea so taken by him or them to the constable wlio has the execution of such last mentioned war- rant, to be by him delivered to the Justice or Jus- tices before whom he takes the accused, in obedience to the said warrant, and the said depositions and recognizances shall be deemed to be taken in the case, and shall be treated to all intents and purposes as if they had been taken by or before the said last mentioned Justice or Justices, and shall, together with such depositions and recognizances as such last mentioned Justice or Justices take in the matter of such charge against the said accused party, be trans- mitted to the clerk of the court or other proper officer where the said accused party is to be tried, in the manner and at the time hereinbefore men- tioned, if such accused party should be committed for trial upon the said charge, or be admitted to bail. Ai to payment of 49. In casc such accused party be taken before expenses of con- , , a. •/ v«yiDg the accu- the Justico or Justiccs last aforesaid, by virtue of Md Into the • . i i proper diTiBion. the Said last mentioned warrant, the constable or other person or persons to whom the said warrant is directed, and who has conveyed such accused party before such last mentioned Justice or Justices, shall upon producing the said accused party before such Justice or Justices, and delivering him into the cus- tody of such person as the said Justice or Justices direct or name in that behalf, be entitled to be paid his costs and expenses of conveying the said accused party before the said Justice or Justices. JaBtice to tar- nMioonstaUa 60. Upon the said constable delivering to the said with jTrec^ or Justice or Justices the warrant, information (if any) certificate, ic. , .^. , . i« -j \ depositions and recognizances as aforesaid, and prov- ing by oath the handwriting of the Justice or Jus- tices who has subscribe'd the same, such Justice or Justices before whom the said accused party is pro- duced, shall thereupon furnish such constable with THE magistrate's MANUAL. 45 a receipt or certificate (E 2) of his or their having received from him the body of the said accused party, together with the said warrant, infonnation (if any) depositions and recognizances, and of his having proved to him or them, upon oatli, the hand- writing of the Justice who issued the said warrant. 61. The said constable, on producing sucn receipt comuw. on or certificate to the sheriff or high bailiff, if ho waswrtiflMUtob* employed by such officer, and if not, then to the'* treasurer of the municipality or division in which such accused party was apprehended, shall be enti- tled to be paid all his reasonable charges, costs and expenses of conveying such accused party into such other territorial division, and of returning from the same. 52. When any person appears before any Justice power to anj of the Peace charged with a felony or suspicion of blu p2f«oM felony, and the evidence adduced is in the opinion felony! »c! of such Justice, sufiicient to put such accused party on his trial as hereinafter mentioned, but does not furnish such a strong presumption of guilt as to warrant his committal for trial, such Justice, jointly with some other Justice of the Peace, may admit such person to bail upon his procuring and produc- ing such surety or sureties as in the opinion of such two Justices will be sufficient to ensure the appear- ance of the person so charged at the time and place when and where he is to be tried for the offence ; and thereupon such two Justices shall take the re- cognizances (S 1, 2) of the said accused person and his sureties, conditioned for the appearance of such accused person at the time and place of trial, and that he will then surrender and take his trial, and not depart the court without leave. 63. "When the offence committed or suspected to . , . *. . -t In cMe of mladv' have been committed is a misdemeanor, any one JUJgJJ'j^" ^, Justice may admit to bail in manner aforesaid ; and 46 THB MAGISTRATE S MANUAL. County Jadge ia bl8 discretion may order a party committed Tor trial to bo Admitted to bali. Certain offences tiot bailable ex- xiept by Judge's OTder. Justice bailing lifter commit- tnent to Issne a Irarrant of deli* teranoe. sucli Justice or Justices may at their discretion require such bail to justify upon oath as to their sufficiency, which oath the said Justice or Justices may administer, and in default of such person pro- curing sufficient bail, then such Justice or Justices may commit him to prison, there to be kept until delivered according to law. 54. In Upper Canada, in all cases of felony, where the party accused has been finally committed as hereinafter provided, any county judge who is also ■ a Justice of the Peace for the county within the limits of which such accused party is confined, may, in his discretion, on application made to him for that purpose, order such accused party or person to be admitted to bail on entering into recognizance with sufficient sureties before two Justices of the Peace, in such an amount as the said judge directs, and tliereupon such Justices shall issue a warrant of deliverance (S 3) as hereinafter provided, and shall attach thereto the order of the judge directing the admitting of such party to bail. 55. No Justice or Justices of the Peace or county judge shall admit any pei-son to bail accused of treason or murder, nor shall any such person be ad- mitted to bail, except, in Lower Canada, by order of Her Majesty's Court of Queen's Bench, or of one of the judges thereof, or of a judge of the Superior Court, or, in Upper Canada, by order of Her Majes- ty's Court of Queen's Bench or Common Pleas, or of one of the judges thereof; and nothing herein contained shall prevent sucli courts or judges admit- ting any person accused of misdemeanor or felony to bail when they may think it right so to do. 56. In all cases where a Justice or Justices of the Peace admits to bail any person who is then in any prison charged with the offence for which he is so admitted to bail, such Justice or Justices shall send l! I' THE magistrate's MANUAL. 47 t. :;| to or cause to be lodged with the keeper of such pri- son a warrant of deliverance (S 3) under his or their hand and seal or hands and seals, requiring the said keeper to discharge the person so admitted to bail, if he be detained for no other offence, and upon such warrant of deliverance being delivered to or lodged with such keeper, he shall forthwith obey the same. 67. When all the evidence offered upon the part ir the eTidence of the prosecution against the accused party has fldent, party to been heard, if the Justice or Justices of the Peace '^ then present be of opinion that it is not sufficient to put the accused party upon his trial for any indict- able offence, such Justice or Justices shall forthwith order such accused party, if in custody, to be dis- charged as to the information then under inquiry ; but if in the opinion of such Justice or Justices theifrofflcieiit,tobe • -, • iS5«ij. iii J i. balled or commit' evidence is suracient to put tlie accused party upon ted &c. his trial for an indictable offence, although it may not raise such a strong presumption of guilt as would induce such Justice or Justices to commit the accused for trial without bail, or if the offence with which the party is accused be a misdemeanor, then such Justices shall admit the party to bail as herein- before provided, but if the offence be a felony, and the evidence given is such as to raise a strong pre- sumption of guilt, then such Justice or Justices shall by his or their warrant (T 1) commit him to the common gaol for the territorial division to which he may by law be committed, or in the case of an indict- able offence committed on the high seas, or on land beyond the sea, to the common gaol of the territorial division within which such Justice or Justices have jurisdiction, to be there safely kept until delivered by due course of law. 58. The constable or any of the constables, or Proriiions other persons to whom any warrant of commitment couTeyance of authorized by this or any other act is directed, shall''' "'^ *''^' 48 THE magistrate's MANUAL. As to payment of costs for the sam«. When and how defendant may be entitled to • copy of depoai- tkms. convey the accused person therein named or des- cribed to the gaol or other prison mentioned in such warrant, and there deliver him, together with the warrant, to the gaoler, keeper or governor of such gaol or prison, who shall thereupon give the consta- ble or other person delivering the prisoner into his custody a receipt (T 2) for such prisoner, setting forth the state and condition of the prisoner when delivered into the custody of such gaoler, keeper or governor. 59. In all cases in Lower Canada where such con- stable, or other person is entitled to his costs or expenses for conveying such person to prison as aforesaid, the Justice or Justices who commit the accused party, or any Justice of the Peace in and for the territorial division wherein the offence is alleged in the said warrant to have been commttted may ascertain the sum which ought to be paid to such constable or other person for arresting and conveying such prisoner to such gaol or prison, ^nd also the sum which should reasonably be allowed him for his expenses in returning, and thereupon such Justice shall make an order (T 2) upon the sheriff for the territorial division within which the the offence is alleged to have been committed, for payment to such constable or other person of the sums so ascertained to be payable to him in that behalf ; and the said sheriff, upon such order being produced to him shall pay the amount thereof to such constable or other person producing the same, or to any person who produces the same to him for payment. 60. At any time after all the examinations afore- said have been completed, and before the first day of the sessions, or other first sitting of the court at which any person so committed to prison or admit- ted to bail as aforesaid is to be tried, such person le. for '1 re- lay at '^M ait- m son '''^« THE magistrate's MANUAL. 49 may require and shall be entitled to have from the officer or person having custody of the same, copies of the depositions on which he has been committed or bailed, on payment of a reasonable sum for the same, not exceeding the rate of five cents for each folio of one hundred words. 61. Any one inspector and superintendent of Powe™ of police, any police magistrate or stipendiary magis- pouoo, 4o. trate, appointed for any territorial division, may do alone whatever is authorized by this Act to be done by any two or more Justices of the Peace, and the several forms in this Act contained, may be varied so far as necessary to render them applicable to such inspector and superintendent of police, or to such police magistrate or stipendiary magistrate. 62. Every coroner, upon any inquisition taken Duty ©f coroner, before him, whereby any person is indicted for man- slaughter or murder, or as an accessory to murder before the fact, shall in presence of the party accused, if he can be apprehended, put in writing the evi- dence given to the jury before him, or as much thereof as may be material, giving the party accused full opportunity of cross-examination ; and the coro- ner shall have authority to bind by recognizance all such persons as know or declare anything material touching the said manslaughter or murder, or the said oifence of being accessory to murder, to appear at the next court of oyer and terminer or gaol deli- very, or other court at which the trial is to be, then and there to prosecute or give evidence against the party charged ; and every sach coroner shall certify and subscribe the same evidence, and all such recog- nizances, and also the inquisition before him taken, and shall deliver the same to the county attorney of the county, or to the proper officer of the court, at the time and in the manner specified in the thirty- ninth section of this act. ftO THE magistrate's MANUAL. When party com- S3. "When and 80 often as any person has been tnltt«d wishes to .in -ii t. t. iwuiied.the Committed tor trial by any Justice or Justices, or Jastioes, on no- .11. 1 . 1 ttee there.if. to coroucr as atorcsaid, such prisoner, his counsel, forward all Infor- » jt 7 j Tth°r*" ^^'"^ attorney or agent may notify the said committing % Same order to be made as upon hdbeat corpiu. Justice or Justices, or coroner, that he will, so soon as counsel can be heard, move one of Her Majesty's courts of superior criminal jurisdiction for that part of the Province in which such person stands com- mitted, or one of the judges thereof, or in Lower Canada a judge of the Superior Court, or in Upper Canada the judge of the county court, if it is in- tended to apply to such judge under the fifty-fourth section of this Act, for an order to the Justices of the Peace, or coroner for the territorial division where such prisoner is confined, to admit such pri- soner to bail, whereupon such committing Justice or Justices, or coroner, shall, with all convenient expedition, transmit to the oflice of the Clerk of the Crown, or the chief clerk of the court, or the clerk of the county court (as the case may be) close under the hand and seal of one of them, a certified copy of all informations, examinations and other evidences, touching the offence wherewith such prisoner has been charged, together with a copy of the warrant of commitment and inquest, if any such there be, and the packet containing the same shall be handed to the person applying therefor, in order to such transmission, and it shall be certified on the outside thereof to contain the information touching the case in question. 64. Upon application to any of Her Majesty's courts of superior criminal jurisdiction for that part of the Province within which such person stands committed, or to any judge thereof, the same order touching the prisoner being bailed or continued in custody, shall be made as if the party were brought up upon a habeas corpus. I THB MAQISTRATB'S MANUAL. 61 H3 ■M 65. If any Justice or coroner neglects or offends Penalty on jn^ in anything contrary to the true intent and meaning ners. of any of the provisions of the sixty-second and fol- lowing sections of this Act, the court to whose officer any such examination, information, evidence, bail- ment recognizance or inquisition ought to have been delivered, shall, upon examination and proof of the offence, in a summary manner, set such fine upon every such Justice or coroner as the court thinkS meet. 66. The provisions of this Act relating to Justices Provisions to in 1 iT.i apply to all and coroners shall apply to the Justices and coroners •'"««<*■ an* not only of districts and counties at large, but also of all other territorial divisions and jurisdictions. 67. The several forms in the schedule to this Act contained, or forms to the like effect, shall l)e good, valid and sufficient in the law ; and the word " dis- trict" as used therein is intended to apply to Lower Canada, and the words "county" or " united coun- ties" to Upper Canada. [jesty's it part [stands order lued in rought M [52] W FORMS REFERRED TO IN THE FOREGOING ACT. (A) Vide M. 1 and 8. INFORMATION AND COMPLAINT FOR AN INDICTABLE OFFENCE. Province of Canada, District (or county^ united e&untie*, or a» the ease may he) of — The information and complaint of C. D., of (yeoman) taken day of in the year of our Lord before the undersigned (one) of Her Majesty's Justices of the Peace in and for the said district (or county^ as the case may be) of who saith that (<£«., stating the offence). Sworn before (me) the day and year first aboye mentioned, at J. S. (B) See M. 1, 18. WARRANT TO APPREHEND A PERSON CHARGED WITH AN INDICTABLE OFFENCE. Province of Canada, District (or county, united counties, or as the ease may Je)of To all or any of the constables or other peace officers in the district (or county, united counties, or cu the case may be) of Whereas, A. B., of (laborer) hath this day been charged upon oath before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the case may be) of for that he, on at did ((&c., stating shortly the offence) : These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A. B., and to bring him before (me) or some other of Her iN ajesty's Justices of the Peace in and for the said dis- trict (or county, united counties, or as the case may be) of to answer unto the said charge, and to be further dealt with according to law. Given under (my) hand and seal this day of at in the district (county, <&e.) aforesaid. J. S. [l. s.] (C) See ss. 2, 12. SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE OFFENCE Province of Canada, District (or county, united counties, or as the case may be) of To A. B., of (laborer). Whereas, you have this day been charged before the undersigned (one) of Her Miyesty's Justices of the Peace in and for the said district (or county, THE MAQI8TEATE S MANUAL. 53 united eountie»y or as the ease may he) of • for that you on you, at (tfec, ttating shortly the offence); These are therefore to command in Her Majesty's name, to be and appear before {me) on at — o'clock in the {fore) noon, at or before such other Justice or Justices of the Peace of the same district (or county, united counties, or as the case mag be) of as may then be there, to answer to the said charge, and to be further dealt with according to law. Herein fail not Given under my hand and seal, this day of in the year of our Lord at in the district (or county, &c.) aforesaid. J. S. [l. s.] ' (D) See ss. 2, 15. WARRANT WHEN THE SUMMONS IS DISOBEYED. Province of Canada, District (or county, united counties, or as the case may je)of To all or any of the constables or other peace ofBcers in the said district (or equnty, united counties, or as the case may he) of Whereas on the day of {instant or last past) A. B. of the was charged before (me or us) the undersigned {or name the magis- trate or magistrates, as the case may be), {one) of Her Majesty's Justices of the Peace in and for the said district, (or county, united counties, vr as the case may be) of for that {<&c., as in the summons)', and whereas (/, he, the said Justice of the Peace, we or they, the said Jus- tices of the Peace) then issued {my, our, his or their) summons to the said A. B., commanding him, in Her Majesty's name, to be and appear before {me) on at o'clock in the {/ore) noon at or before such other Justice or Justices of the Peace as should then be there, to answer to the said charge, and to be further dealt with according to law : and whereas the said A. B. hath neglected to be or appear at the time and place appointed in and by the said summons, although it hath now been proved to {me) upon oath, that the said summons was duly served upon the said A. B. : These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A. B., and to bring him before {me) or some other of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the case may be) of to answer the said charge, and to be further dealt with according to law. Given under {my) hand and seal this day of in the year of our Lord at in the district {county) of aforesaid. J. S. [l. s.] — • — (E 1) See s. 11. INFORMATION TO OBTAIN A SEARCH WARRANT. Province of Canada, District (or county, united counties, or as the ease may he)o{ The information of A. B., of the of in the said district (or county, (tc.) {yeoman) taken this day of in the year of our Lord — before me, W. S., Esquire, one of Her Majesty's Justices of the Peace in and for the district (or county, united counties, or as the case may be) of who saith that on the day of {insert des- cription of articles stolen) of the goods and chattels of deponent, were feloniously stolen, taken and carried away, from and out of the {dwelling ^ u THE MAGISTRATE'S MANUAL. hoius, dtc.) of tMs deponent, at the (Uneiuhip, d:c,) aforesaid (by some per* son or persons unknown, or name the person) and that he hath just and reasonable cause to suspect and doth suspect that the said goods and chat* tels, or some part of them, are concealed in the (dwelling house, &c., of (7. D.) of in the said district, (or county) (here add the causes of susr- pieion whatever they may he) : Wherefore (he) prays that a search warrant may be granted to him to search (the duelling house, £e.) of the said C. D. as aforesaid, for the said goods aiid chattels so feloniously stolen, taken and carried away as aforesaid. Swot n before me the dav and year first aboro mentioned, at in the said district (or county) of W. S., J. P. (E 2) See s, 11. SEARCH WARRANT. Province of Canada, District (or county, united counties, or as the ease may be) of To all or any of the constables, or other peace oflQcers in the district (or county, unitea counties, or as the case may be) of Whereas, A. B., of the of in the said district (county, Se.) hath this day made oath before me the undersigned, one of Her Majesty's Justices of the Peace in and for the said district (or county, united counties or as the case may be) of that on the - ■' day of (copy ivformation asfwt as place ef supposed concealment) : These are therefore in the name of our Sovereign Lady the Queen, to authorize and require you and each and every of you with necessary and proper assistance, to enter in the day time into the said (dwelling house, Sc, of the said, &c.) and there diligently search for the said goods and chattels, and if the same or any part thereof shall be found upon such search, that you bring the goods so found, and also the body of the said 0. D. before me, or some other Justice of the Peace in and for the said district (or county, united counties, or as the case may be) of • to be disposed of and dealt with according to law. Given under my hand and seal at in the said district (county, Ac.) this day of— — in the year of our Lord one thousand eight hundred and W. S., J. P. [seal]. — « — (P) See s. 8. CERTIFICATE OF INDICTMENT BEING FOUND. I hereby certify that at a court of (oyer and terminer or general gaol delivery or general sessions of the peace) holden in and for the district (or county united counties, or as the case may be) of at in the said district (county, £e.) on ■ a bill of indictment was found by the grand jury against A. B., therein described as A. B., late of (laborer) for that he (<£<;., stating shortly the offence) and that the said A. B. hath not appeared or pleaded to the said indictment. Dated this day of one thousand eight hundred and Z. X., Clerk of the Crowii or deputy clerk of the Crown for the district or (county united counties or as the case may be) or Clerk of the Peace of and for the said district (or county, united countiet^ or as the ease may (e). THE magistrate's MANUAL. 05 (G) See a. 8. WARRANT TO APPREHEND A PERSON INDICTED. Province of Canada, District (or county, united counties, or as the case may be) of To all or any of the constables or other peace officers in the said district (or county, united counties, or as the case may be) of Whereas it hath been duly certified by J. D., clerk of the Crown of {name the court) (or E. G., deputy clerk of the Crown, or Clerk of the Peace, as the ease may be) in and for the district (or county, united counties, or as the case may be),of that {tic., stating the certificate)'. These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A. B., and to bring him before (me) or some other Justice or Jus- tices of the Peace in and for the said district (or county, united counties, or as the case may be) to be dealt with according to law. Given under my hand and seal this day of in the year of our Lord at in the district (or county, i".t [.ie., a» in the aummoiu) ; and it having boon inado to appear to {me) upon oath that E. F., of (lahorer) i» likely to give material ovidKnce for the prosecution, and that it is probable that the said E. F. will not attend to give evidence unless com* pcUcd to do so : These are therefore to command you to bring and have the said E. F. before (me) on at o'clock in the (fore) noon, at or before such other Justice or Justices of the Peace for the same district (or county, united counties, or n* the case may he) as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given under my hand and seal this day of in the year of our Lord at in the district (or county ^ rit, 0. !►. up')aM? (uatli) ith as follows: (dke. ttating th4 depoaitiom of the mint 3 a* ce^nly pootible in the words he usee, when his deposition is eomple^ey lei him fij/n it.) And this deponent, E. P , upuc* hvi (oath) mt'n as follows: (t&c.) The above depoditionf* iif 0. D ?inx E. F. ^fflj« (Rkcv? and (sworn) me, at on the duy a jd .>tX6 may !>«) of — — > A. B. stands charged before the undersii^ed, {one\ of Her Majesty's Justices of the Peace, in anrl ibr tlij district (or ic&tiniy^ vniUd counties, or as the case may be) aforesaid, thia day olf -» in tbo year of our Lord for that the syid A. B., on at — - — \(S;c. as in the caption of the depositions) : And the nid chnrj^e beinn r^iad to the said A. B. and the witnesses for tne prosecution, T l), an ' \u. R being severally examined in his presence, the said A. B. is rmv iddressed by me as fol- lows: ** Having heard the evidence, vlo you 'warh tu siy anything in answer " to the charge ? You ar& not obUgeii to S3;j anything, unless you desire *' to do so ; but whM^'v ;» you sny vfIU be taken down in writing, and may " be given against } (iu e,«, youi Iml." Whereupon the said A. B. saith as follows : (Here state tuhatevet Jig primner m^y say, and in his very words . provided, I have ascertained that the sum which ought to bo paid to lid W. T. for arresting and conveying the said A. B. from in tu istrict (or county, dtc.) of ' to the said common 68 THB MAGISTRATE S MANUAL. eaol is ■ and that the reasonable expenses of the said W. T. in return- ing, will amount to the further sum of making together the sum of ^—^— ; These are therefore to order you, as such treasurer for the said district (or county, united counties, or as the case may be) of to pay unto the said W. T. the said sum of according to the form of the statute in such case made and provided, for which payment this order shall be your sufficient voucher and authority. Given under my hand, this — — - day of one thousand eight hun- dred and J. P. Received, the — — day of ■ one thousand eight hundred and of the treasurer of the district (or county, united counties, or as the case may he) of the sum of — — — being the amount of the above order. I cts. W. T. t-. I [69] DUTIES OF JUSTICES OF THE PEACE, CONSOL. STAT. CANADA, CAP. CIII. AN ACT BBSPECTINO THB DUTIES OF JUSTICES OF THE PEACE, OUT OF SESSIONS, IN RELATION TO SUMMARY CONVICTIONS AND ORDERS. Her Majesty^ hy mid with the advice and consent of the Legis- lative Council and Assembly of Canada^ enacts as follows : 1. In all cases where an information is laid before where an inibr- ^ , mation is laid, one or more of Her Maiesty's Justices of the Peace *c-. before a job- " " tice of the Peace, for any Territorial Division of this Province, that *c-. «»»c»» Ju^ice '' ^ ' may iMoe a Bum* any person has committed, or is suspected to have™o^»*o"«'* committed, any offence or act within the jurisdiction of such Justice or Justices, for which he is liable by law, upon a summary conviction for the same before a Justice or Justices of the Peace, to be imprisoned or fined, or otherwise punished, and also in all cases where a complaint is made to any such Justice or Justices, upon which he or they have authority by law to make any order for the payment of money or otherwise, such Justice or Justices of the Peace may issue his or their summons (A), directed to such person, stating shortly the matter of the information or complaint, and requiring him to appear, at a certain time and place, before the same Justice or Justices, or before such other Jus- tice or Justices of the same Territorial Division as may then be there, to answer to the said iuforma- 70 THE MAOISTRATe'8 MANPAT.. tion or complaint, and to be further dealt with according to law.* • HowiBinraonito 2. Evcrv 8uch Summons Bhall be served by a Constable or other Peace Officer, or other person to whom the same may be delivered, upon the person to whom it is directed, by delivering the same to the party personally, or by leaving i^ with some person for him at his last or most usual j ace of abode. congtabiei! to 3. The constablc, peace ofLcer, or person who Bttend to depose, , ,, i - . i i Ac. serves the same, shall attend at tue time and place, and before the Justices, in the said summons men- tioned, to depose, if necessary, t\) the service there- of. justie«» not 4. But nothing hereinbefore conta'ned shall oblige obliged in certain o '^ cues to issue auv Justlce or Justices of the Peace to issue any Bummous, v ^ • i. • i • • i 11 he escapes, goes into, resides, or is, or is supposed or suspected to be in any place within this Province, ■whether in Upper or Lower Canada, out of the juris- diction of the Justice or Justices who issued the warrant, any Justice of the Peace within whose jur'sdiction such person may be or be suspected to be, as aforesaid, upon proof upon oath of the hand- writing of the Justice or Justices issuing the war- rant, may make an endorsement upon it, signed with his name, authorizing the execution of the warrant within his jurisdiction ; and such endorsement shall be a sufficient authority to the person bringing the warrant, and to all other persons to whom it was originally directed, and to all constables or other i^eace officers of the territorial division wherein the endorsement has been made, to execute the same in any place within the jurisdiction of the Justice of the Peace endorsing the same, and to carry the offender, when apprehended, before the Justice or Justices who first issued the warrant, or some other Justice having the same jurisdiction. No ohjection 12. No objcctiou sliall be taken or allowed to any of foTrntathV"* warrant issued as aforesaid, for any alleged defect Ttarrsn . therein in substance or in form, or for any variance between it and the evidence adduced on the part of ' the informant or complainant, but if it appears to the Justice or Justices present and acting at such hearing, that the party apprehended under such warrant has been deceived or misled by any such variance, such Justice or Justices may, upon such ..rf|yrf««a(«giBUi(|(,i> THE magistrate's MANUAL place where!" f^I^fj"*'' '""'r"' ^-'^-n o^ -ting, or to such od cr eC^' "'' 'T''^^ '"^y be or Justices think MornZf^, "' "'" ^'^ J»stiee entering into a ^tZi^ZeTyl'"'^'}'''^ "P"" ^'^ «nrety or amities at tl » T ^? ""'"' »' ^"t'"""* or Justices, condi'tionetf'irr "' ™^'' '"''''''' ' -eandpWeto.hichs„ehi::riT~^„lS« afterwards appear a Set:!', ""j' ""^^ notr^-J:^^ recognizance mentioned the ;. J '""' '" ^etlJ^S.^^; recognizance, or any J,. 7 f '^ho took such tl^en be there present hn " "^ i™""''^ ^'''o ™ay back of the » rrcSr"-'"'' ^^ "P°" *"« of the defendant, may TnU ';"" "^""W^^^ce -eb recognizanc; t^L ClS^; .^r^" '--'t territorial division within w^T > ! ^''^''^ <>* the was taken, to be prorededT ™f -^""gni^anee ot'.er recinizanceTand «T° '" '** "'^»"«'- -^ deemed sufficieTt ;w2 / ''"'^•"'*'' ''"'" •>« appearance of th SeSn^"" "'''"' "^ 75 tenants-ia-eommon it shall hi T ' ^"'^""'^ « of such persons, and to state t'" *' """"^ ""' to the pe,.on si namert ^ " T^"^^ ^ belong tlie ease may be ^7 , ''"""'^'•' <"• others, ^ or oomplai^f, or ke prot'l''"' ? ""^ '"'-'"''t^on «ary to ment on f™ v f '""" *•""""' '' '^ "«««- Partnei^, joint ll ^^ ^'^P"'" whatsoever, any ' •' "°'"'*"' P--"-<^'^"e'^ or tenants-in-com. irl 31: all -fl Y6 THE MAGISTRATE 8 MANUAL. M Abettors, Ac, how punishable. mon, it shall be sufficient to describe them in the manner aforesaid ; and whenever, in any such infor- mation or complaint, or the proceedings thereon, it is necessary to describe the ownership of any work or building made, maintained or repaired at the expense of any territorial division or place, or of any materials for the making, altering or repairing the same, they may be therein described as the property of the inhabitants of such territorial division or place.* 15. Every person who aids, abets, counsels or pro- cures the commission of any offence which is punish- able on summary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction, and shall be liable, on conviction, to the same forfeiture and punishment as the prin- cipal offender, and may be proceeded against and convicted either in the territorial division or place where the principal offender may be convicted, or in that in which the offence of aiding, abetting, coun- selling or procuring was committed.f 16. If it be made to appear to any Justice of the Peace, by the oath or affirmation of any credible person, that any person within the jurisdiction of such Justice is likely to give material evidence on behalf of the prosecutor or complainant, or defend- ant, and will not voluntarily appear as a witness at the time and place appointed for the hearing of such 'nformation or complaint, such Justice shall issue his * Where quantity or value are necessary parts of the case, tlie complaint or in formation should, of course, specify them as accurately as possible ; and more particularly so where they become the measure of the penalty or compensation to be awarded by the convicting Justice, f When several persons are joined in a charge, and found guilty, thev must be separately convicted and fined ; for otherwise, if one refused to pay his share, the others might have to pay the whole, or be imprisoned until the first had paid his fine; and a conviction imposing a joint fine will be bad. — Morgan v. Brown, 4Ad. AE, 516. Power to Jus- tices to summon witnesses to attend and give evidence. being b THE magistrate's MANUAL. %t summons (G 1) to such person, under his hand and seal, requiring him to be and appear at a time and place mentioned in such summons, before the said Justice, or before such other Justice or Justices of the Peace for the said territorial division, as may then be there, to testify what he knows concerning the said information or complaint. 17. If any person so summoned neglects or refuses if rammonsb* to appear at the time and place appointed by the justice may ' said summons, and no just excuse be offered for such neglect or refusal, then, (after proof upon oath or affirmation of such summons having been served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode), the Justice or Justices before whom such person should have appeared may issue a warrant (G 2) under his or their hands or seals, to bring and have such person, at a time and place to be therein mentioned, before the Justice who issued the said summons, or before such other Justice or Jus- tices of the Peace for the same territorial division as may be then there, to testify as aforesaid ; and which said warrant may, if necessary, be backed, as herein- before mentioned, in order to its being executed out of the jurisdiction of the Justice who issued the same. 18. If such Justice be satisfied, by evidence upon when justice oath or affirmation, that it is probable that such per- warrlnUa^the fion will not attend to give evidence without being "* °* *°*^' compelled to do so, then instead of issuing a sum- mons he may issue his warrant (G 3) in the first instance, and which if net ;.d,ry may be backed as aforesaid. 19. If on the appearance of such person so sum- witnesses refus- moiled before the said last mentioned Justice or Jus- ed^may u^^ tices, either in obedience to the summons or upon "" being brought before him or them, by virtue of the W ■a m n »r acts •iance luced siicli litted, that time vari- [dence vvhicli [iimit- fustices Ihall bo ty cents return- jr each THE MAGISTEATe's MANUAL. 79 ted, shall not be deemed material, provided the offence or act be proved to have been committed within the jurisdiction of the Justice or Justices by whom such information is heard and determined.* 22. If anv such variance, or any other variance, if deemed mate- J ' "^ 111 >■***' •'"■Mce may between the information and the evidence adduced aiyoum the case, in support thereof, appears to the Justice or Justices present and acting at the hearing, to be such that the party charged by such information has been thereby deceived or misled, such Justice or Justices, upon such terms as he or they think fit, may adjourn the hear- ing of the case to some future day ; and in the mean- time commit (D) the said defendant to the common gaol, house of correction, or other prison, lock-up house, or place of security, or to such other custody as the said Justice or Justices think fit, or may dis- charge him upon his entering into a recognizance (E)^ with or without surety or sureties, at the discretion of such Justice or Justices, conditioned for his appearance at the time and place to which such hearing is adjoui'iied. 23. In all cases where a defendant has been dis- in case the a©- fendant is bailed charged upon recognizance as aforesaid, and does and fails to ap- ~^ ^ ~ , , pear atterwards. not afterwards appear at the time and place in such ^^ , ^ _, ^ ^ ^ , \ What 10 be done. recoo-inzance mentioned, the said Justice who took , tt r. -i ^ ' In Upr'^r Canada the said recognizance, or any other Justice or Jus- J,g''°fn|''fJ'c!eik tices who may be there present, having certified (F)*''"**'® ^*""®- upon the back of the said recognizance the non- appearance of the defendant, may (in Upper Canada) transmit such recognizance to the Clerk of the Peace of tlie territorial division within which such recog- nizance was taken, to be proceeded upon in like maimer as other recocrnizances : and such certificate * AVhen an information charged the dofendant with having committed an offence on the 5th of October, and on divers other daj's and times between the said Otli i)f October and the laying the information (IGth November), and the Justices committed him for committing the offence alleged on the 8th of Novem- ber, it was Jield that the variance was immaterial ( Inly v. Gee, 30, L. J. M. C. 222.) S.') J 11 m 80 THE magistrate's MANUAL. 1 shall be deemed sufficient prima facie evidence of the non-appearance of the said defendant. Complaint or 24. All cases of complaint upon which a Justice Information . /.i-r-k i«iii must be made or Justiccs 01 the Fcace are authorized by law to in certain caaeB. make an ordcr, and all cases of information for any oifence or act punishable upon summary conviction, unless some particular Act of Parliament otherwise permits, shall be made or laid on oath or affirma- tion as to the truth thereof* And always 25. In all cascs of informations, where the Justice Issued in the first or Justiccs receiving the same thereupon issue his or plaint or infor- their Warrant in the first instance, to apprehend the mation to be for j/.j. « . ■, ,. ^ .^ one matter only, defendant as aforesaid ; and in every case where the Justice or Justicjes issue his or their warrant in the first instance, the matter of such information shall be substantiated by the oath or affirmation of the infor- mant, or by some witness or witnesses on his behalf, before any such warrant shall be issued ; and every such complaint shall be for one matter of complaint only, and not for two or more matters of complaint ; and every such information shall be for one offence only, and not for two or more offences ; and every such complaint or information may be laid or made by the complainant or informant in person, or by his counsel or attorney, or other person authorised in that behalf 26. In all cases where no time is specially limited for making any such complaint or laying any such information in the Act c • Acts of Parliament relat- Vor information or complaint. * The Justice, after reading the information over to the informant, and satis- fying himself that the contents are properly understood by him, should cause him to sign it; and then giving him a Testament in his right hand, while the Justice taking the information, and holding it in his presence, should repeat the following form of oath:—" You, A. B., do swear that the contents of this infor- mation signed by you are true and correct. So help yov. GoJ." After which the informant should kiss the book. If the informant should aot be a Christian, the mode of swearing him must be varied according to his religious belief as noticed hereafter. If the informant is a Quaker, Mononist, or Tuiiker, or reli- giously objects to an oath, his solenm affirmation may be taken in place of the oath, but under similar liabilities if false. THE MAGISTEATe's MANUAL. 81 ing to the particular case, such complaint shall be made and such information shall be laid, within three months from the time when the matter of such complaint or information arose. 27. Every such complaint and information shall ^^«to«ieh«»ring be heard, tried, determined and adjudged by one orjnjjnto'""*- two or more Justice or Justices of the Peace, as may be directed by the act or acts of Parliament upon which such complaint or information is framed, or by any other act or acts of Parliament in that be- half.* 28. If there be no such direction in any act of if there be no T»T xii. 1- I'j. •!» i» siich direction. Parliament, then such complanit or miormation may be heard, tried, determined and adjudged by any one Justice for the territorial district where the matter of such information or complaint arose. 29. The room or place in which such Justice or to be deemed an Justices sit to hear and try any such complaint or in-"'*'^ ~" formation, shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them.f 30. The party against whom such complaint is Defendant mar made, or information laid, shall be admitted to make fence, and pro- his full answer and defence thereto, and to have the ""* """^ witnesses examined and cross-exf.mined by counsel or attorney on his behalf. * Where the Statute makes no provisioa, the hearing may bo before one Jus- tice only. f The majority of cases that come before Justices may be summarily disposed of by one Justice, at his private residence, and at any hour that may suit his convenience ; but with the exception of cases of felony, where a Justice is merely acting ministerially, it is not very usual, and certainly not expedient, to hear caaes in so private a manner. Indeed, as Justices are entrusted with the func- tions of both judge and jury, and must exercise their summary jurisdiction in a place to which the public may have reasonable access, it is more consonant with their object to dispense impartial justice for their judicial proceedings to be conducted with due solemnity and publicity ; and it is therefore customary for them to hold their sittings in some convenient room, which may be resorted to by the public as an open court. 6 m S2 THE MAGISTRATE S MANUAL. ProdMiitor may 31. Evciy coniplaiiiaiit or informant in any such bo heard by ini ^ti a_ i i i- cnunHeiorattor- caso sliall be at liberty to conduct tlie coniphiint or information, and to have the witnesses examined and cross-examined hy counsel or attorney on liis belialf. incasn the (Ik- 32. If, at thc clav and phice appointed in and by fend,i..t. d,K,s not ' X. • 1 <. 1 . 11^ • . api.ear, r com- ne, and support 80 hear samine, iuhis e prose- if such ven any general is laid rc- •e credible t proof to kry con vie- down, and Be, and for a Justices' jhe lead in Ition of the his habits tith a due 1 1 40. The prosecutor or complainant shall not ^ JXJjSt' "ot'to entitled to make any observations in reply upon the Jf ^.^jJ^JJ** evidence given by the defendant; nor shall thejp^"**^*'*- defendant be entitled to make any observations in reply upon the evidence given by the prosecutor or complainant in reply, as aforesaid.* 41. The Justice or Justices, having heard what After hMring each party has to say, as aforesaid, and the witnesses to determine the and evidence so adduced, shall consider the whole "* *"' matter, and, unless otherwise provided, determine the same, and convict or make an order upon the defendant, or dismiss the information or complaint, as the case may be.f regard to the rules of evidence, and the nature and extent of the testimony re- quired to substantiate the case. It is material that the witnesses should be sworn and examined in the pres- ence of the prisoner (or defendant, if he appear to the summons), that he may confront them and prepare himself to cross-examine them ; and should a witness be examined in the absence of defendant, and the defendant afterwards appear, it Mrill not be sufficient to read over the deposition in the defendant's presence, but the witness must also be re-sworn. (R. v. Crovother, 1 T. R. 126). In the examination of witnesses Justices should be particularly careful neither to ask nor permit the asking of leading questions, so as to suggest favorable answers on their examination on behalf of the party who seeks the benefit of their testimony ; neither should any hearsay answers be accepted as evidence. As the examination in chief of each witness for the prosecution is ended, the defendant should, in all cases of summary conviction, if present, be allowed and even invited to put questions to the witness, by way of cross-examination, with a view to elicit evidence in his own favor; and the prosecutor or complainant should then be allowed to re-examine the witness if necessary, in the same man- ner as is practised in the superior courts. When the prosecutor or complainant has produced all his witnesses, and their evidence has been heard, together with any other evidence which he may bring forward in support of Uie information or complaint, the case for the prosecution is closed, and the defendant (or his at- torney, if he has one) should be called upon to address the court in his defence, and produce his witnesses. Should the defendant call any witnesses in support of his defence, they should be sworn, and their evidence heard, together with any other evidence the de- fendant may bring forward, in the same manner as the witnesses for the prosecu- tor or complainant, who should be allowed, at the close of each witness's evidence, to cross-examine them. * By strictly following the directions given in this section, the Justice will not only save time to himself and all parties interested, but will be more likely to keep an orderly Court-room than if he permits the parties to talk as often as they see fit. If the parties are not represented by professional men, the Justice should, at the opening of the case, state that each party will have an opportunity at his discretion either before or after he calls his witnesses, of addressing the bench. f The decision of the Bench should bo pronounced openly, in the presence of the parties, as well as of such of the public as may attend the hearing ; and \ • ■ U i ■ { ■ \ \ 1 ■ \ 1 !l I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !^i^ ta, >tt Ui 122 1.1 £ la 12.0 — M ^ ^ ^ Hiotographic Sdences Carporation 23 WIST MAIN STRCn WIISTIR.N.Y. 14SM (716) •72-4503 THE magistrate's MANUAL. If defendant ii 42. If lie or tliev convict or make an order asainst oonTict«d, a min- ,■,„■, . t ^ if ntetobemade the defendant, a minute or memorandum thereot Tietion drawn np ghall tlieu be made, for which no fee shall be paid ; aftenrardi. and the conviction (11,3) or order (K 1, 3) shall after- wards be drawn up by the said Justice or Justices in proper form, under his or their hand and seal or hands and seals; and he or they shall cause the same to be lodged with the Clerk of the Peace, to be by him filed among the records of the General or Quarter Sessions of the Peace.* , . Or if he dif• to "*'*«' 'be deemed com- every conii)hvinant in any such comphiint as afore- p*»«»' *>'"<''^" •-'■'■ •' ^ and examined said, whatever his interest may be in the result of "po" «»'•»' *'^- the same, shall be a competent witness to support such information or complaint, and every witness at any such hearing as aforesaid shall be examined upon oath or affirmation, and the Justi(;e or Justices before whom any such witness appears for the ])ur- pose of being so examined shall have full power and authority to administer to every such witness the usual oath or affirmation. 40. Before or during the hearing of any such .lustice may , n ,. 1 • . T ,• ' . 1 Hiljniiin li'-arinj? miormation or complaint, any one Justice, or the oi any orhh and ■J. . .,'.... 1 . commit defend- Justices present, may m their discretion adiouriiiint. (r Futier the hearing ot tlie same to a certain time and place ii"g«,*c. to be then appointed and stated in the presence and hearing of the party or parties, or of their respective attorneys or agents then present ; and in the mean- time the said Justice or Justices may sutler the defendant to go at large, or may commit (D) him to the common gaol, or house of correction, or other prison, lock-up or other place of security, within the territorial division for which such Justice or Justices are then acting, or to such other ssife custody as the said Justice or Justices think tit ; or may dischai'ije such defendant, upon his recognizance (E) M'ith or without sureties, at the discretion of such Justice or Justices, conditioned for his ai)j)carance at tlie time and place to which such hearing or furtlicr hearing is adjourned.* * should tlie (l«'fL'ii(lniit not nppcnr nt tht' liciirinc;, pursunnt to tlio summons, and iiny doiil)t exists in tlie minds of tiio .liistices, at'tt'r oxniiiinini; on oath the constat >k' wlio sorvt'd the summons, that it was thdy served a reasonable time before the day appointed for the hearin'i-, or if the non-attemlanee of the defend- ant arises from or is occasioned by nmivoidable aeeident. the .lustiee should, instead of hearin"^ the ease ex pnrtc, adjourn the hearini^ of the eoniplaint or iuforniation for a reasonable i)eriod. Notiee of sueh adjournment should be given to tiie defendant, or ii fresh aunnnona served upon liim. In ease, however, tlio 88 THB IIAGISTBATB'b MANUAL. If defendant or prowentorap- pear, the ease may be heard. 47. If, at the time and place to which such hear- ing or further hearing has been adjourned, either or both of the parties do not appear, personally or by his or their counsel or attorneys respectively, before the said Justice or Justices, or such other Justice or Justices as may then be there, the Justice or Jus- tices as may then be there present may proceed to such hearing or further hearing, as if such party or parties were present. If the proeecnier 48. If the prosccutor or complaiuaut do not ap- doea not appear, . T -r . -r . ■•• • ■l MjenMybedia- pear, the said Justice or Justices may dismiss the said information or complaint, with or without costs, as to such Justices seems fit. fa'iu*to"rMp{.ear, ^^' ^^ *^^ ®*^®* whcu a defendant is discharged **• upon his recognizance, as aforesaid, and does not afterwards appear at the time and place mentioned in such recognizance, the Justice or Justices who took the said recognizance, or any other Justice or Justices who may then be there present, having certified (F) on the back of the recognizance the non- appearance of such accused party, may (in Upper Canada) transmit such recognisance to the Clerk of the Peace for the territorial division in which such recognizance was taken, to be proceeded upon in like manner as other recognizances ; and such certi- ficate shall be deemed sufficient prima facie evi- dence of such non-appearance of the said defendant. Justice should think fit, upon the defendant's non-appearance, to issue a warrant for his apprehension, the hearing of the complaint or information should be adjourned until the defendant is apprehended. The Justice may also adjourn the hearing of the ease whenever there exists such a variance between the summons or warrant issued upon an information or complaint and the evidence adduced on the part of the informant or complainant, as would be calculated to have misled or deceived the defendant as to the charge made against him. Should the defendant appear before the Justices either in person or by a friend, and request an adjournment upon any fair and reasonable ground, and agree to pay the extra expense occasioned thereby, it seems to be but consonant with justice that the Justices should in such cases exercise a liberal discretion, as they might prejudice a defendant's case by undue haste. Should t3)e Justice decide on committing the defendant during the adjourn- ment, he will not be liable to an action, although it should eventually turn out that no offence has been committed, provided the commitment has been made bona fide and without malice. .-•*^. THE magistrate's IfAKUAL. 89 60. In all cases of conviction, where no particular '<»■ «fo«mTi«. ihMM md ordtn form of conviction is given by the statute creating tojf««jto^»^ the offence or regulating the prosecution for *^®p5S^^ same, and in all cases of conviction upon statutes Jgtjjj^»*»« hitherto passed, whether any particular form of con- viction has been therein given or not, the Justice or Justices who convict may draw up his or their con- viction, on parchment or on paper, in such one of the forms of conviction (1 1, 3) as may be applicable to the case, or to the like effect.^ 61. In case an order be made, and no particular whm no ipeeui form of order is given by the statute giving authority ^ S^"^ to make such order, and in all cases of orders made""'' under the authority of any statutes hitherto passed, whether any particular form of order is therein given or not, the Justice or Justices by whom such order is made may draw up the same in such one of the forms of orders (K 1, 3,) as may be applicable to the case, or to the like effect. 62. In all cases when, by an ace of Parliament, Defendant to be ....... ., . t Mrred with copy authority is given to commit a person to prison, orof omer.befere • I 1. J liiiij* dlitreas or corn- to levy any sum upon his goods or cliattels by dis- mitment. tress, for not obeying an order of a Justice or Jus- tices, the defendant shall be served with a copy of the minute of such order before any warrant of commitment or of distress is issued in that behalf; and such order or minute shall not form any part of such warract of commitment or of distress.f a nd ide * See " Assaalts" in index, and remarks upon convictions therefor. Tlie formal record of the conviction or order is seldom drawn up at the time the decision is actually made against the defendant, but a minute or memo- randum of the terms of the judgment or decision is entered by the Justice or presiding Justice upon the minutes of the proceedings, and the conviction or order itself is drawn up subsequently, in readiness to return to the Clerk of the Peace, to be by him filed among the records of the Qeneral or Quarter Sessions of the Peace. I The penalty or sum of money ordered to be paid under the convictioh 6r order, with the costs, must be paid by the defendant immediately, except orders for the payment of money under the Masters and Servants' Act, and there twenty-one days are allowed for the master to pay such wages : before the expira- 90 THE MAGISTRATES MANUAL. Power to jubHcm 53. Ill all cRses of summary conviction, or of not inconnintent ordcrs made by a Justice or Justices of tl»e Peace, eRUbiiBhed hy flic Justico or Justiccs making the same may in his IftW to bo tttkeDi or their discretion award and order, in and by such conviction or order, that the defendant shall pay to the prosecutor or complainant such costs as to the said Justice or Justices seem reasonable in that be- half and not inconsistent with the fees established by law to be taken on proceedings had by and l>efore Justices of the Peace. Costii may be awarded to de- 54. In cases where such Justice or Justices, instead th°**^'i8di" of convicting or making an order, dismiss the infor- missed. mation or complaint, he or they, in his or their dis- cretion, may, in and by his or their order of dismissal, award and order that the prosecutor or com[>lainant shall pay to the defendant such costs as to the said Justice or Justices seem reasonable and consistent with law.* c!o8tB 80 allowed 55. The sums so allowed for costs shall in all cases shall be specified . 'js i • ii • ,• t i /• In conviction or DC specmed lu tlic coiiviction or order, or order oi dismissal ; and the same shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to l)e paid in and by the conviction or order is to be recovered. And may be re- 50. Ill cascs wlicrc there is no such iK>nalty or covered by dis- x' • i T tress. sum ot moiicy to be recovered as atoresaid, such tion of such time no warrant can be enforced. Should the Bench be willing, under certain circumstancef<, to allow a reasonable time for the jiaymcnt of tho fine, or fine and costs, tiiey can do so. Si)oiikl no time bo {jiven by tlie .Justice for the payment of the fine and costs, the defendant should be oi'vlcred to bo taken into custody, and the warrant of distress, or, under the circumstances hereinafter provided, the warrant of commitment, forthwith made out. * It has been before remarked that in pronouncing their judgment or decision, Justices should not only state the amount of the penalty, compensation, or sum of money awarded, but also the amount of eontu, which should be jireviously ascertained : and this is not only necessary where there is a conviction or order, but also where there is a dismissal of tlie information or conjijlaint; because in the latter case the costs fall as a matter of course upon the prosecutor or com- plainant. It is requisite also that the costs should be specified and inserted, not only in the conviction or order where such is made, but also in the order of dis- missal, should the information or complaint be dismissed. THE magistrate's manual. 91 costs shall be rocovemblc l>y distress and sale of the goods and chattels of the i)arty ; and in default of such distress, by imprisonment, with or without hard labour, f»^r any time not exceeding one month, unless the costs be sooner paid. • 57. "Where a conviction adjudges a pecuniary pen- powew to Jasti. ■,. i'ii •! 1 1 ce» to U«ue war- alty or compensation to be paidj or where an order rant of distroM . . 1 . /• n 1 -1 *M ciw«s where a requH'CS the payment oi a sum oi money, and by pecuniary pen- the statute authorizing such conviction or order the been adjudged, penalty, compensation, or sum of money is to be levied upon the goods and chattels of the defendant, by distress and sale thereof; and also in cases where, by the statute in that behalf, no mode of raising or levying such penalty, compensation or sum of money, or of enforcing the payment of tlie same, is stated or provided, the Justice, or any one of the Justices making such conviction or order, or any Justice of the Peace for the same Territorial Division, may issue liis Warrant of Distress (N 1, 2) for the pur- pose of levying the same, which said Warrant of Distress shall be in writing, under the hand and seal of the Justice making the same.* 58. If, after delivery of such Warrant of Distress Proceedinir if , ,, - Rufflcient distress to the constable or constables to whom the same has be not found, been directed to be executed, sufficient distress can- not be found within the limits of the jurisdiction of the Justice granting such warrant, then upon proof being made upon oath of the handwriting of the Justice granting such warrant before any Justice of any other territorial division, such Justice shall thereupon make an endorsement (N 3) on such war- rant, signed with his hand, authorizing the execution i! * If no gootls can bo found, or not a sufficient quantity whereupon to make the levy, tlic constable should attend before the Justice issuing such warrant to prove the fact, which is tcciinically called " making the return of Nulla Bona." This ia done by putting the constable upon hia oath, and he there makes a short de- 1)08ition to prove liis attempt to make tlie levy, and that no sufficient goods can )e found. {The form of which will be found under article " Return.") 92 THE MA0I8TBATE 8 IIANUAL. of such warrant within the limits of his jurisdiction ; by virtue of which said warrant and endorsement the penalty or sum aforesaid, and costs, or so much thereof as may not have been before levied or paid, shall be le^ed by the person bringing such warrant, or by the person or persons to whom such warrant was originally directed, or by any constable or other peace officer of such last mentioned territorial divi- sion, by distress and sale of the goods and chattels of the defendant therein. whantheiMo- 69. Whenever it appears to any Justice of the ing a warrant '^'^ •' to dlilndant or* ^®*^ *^ whom application is made for any warrant nomK! jutiM ^^ distress as aforesaid, that the issuing thereof would to*prtwL"^*'**" ^® ruinous to the defendant and his family, or when- ever it appears to the said Justice, by the confession of the defendant or otherwise, that he hath no goods and chattels whereon to levy such distress, then such Justice, if he deems it fit, instead of issuing a war- rant of distress, may (O 1, 2) commit the defendant to the common gaol, house of correction, or lock-up house in the territorial division, there to be impri- soned with or without hard labor, for the time and in the manner the defendant could by law be com- mitted in case such warrant of distress had issued, and no goods or chattels had been found whereon to levy the penalty or sum and costs aforesaid. Whan dtetrew 60. In all cascs whcro a Justice of the Peace issues may be baUed anv such Warrant of distress, he may suffer the defen- vntU It is r«< *' ' *' toraad. daut to go at large, or, verbally or by a written warrant in that behalf, may order the defendant to be kept and detained in safe custody until return has been made to such warrant of distress, unless the defendant gives sufficient security, by recognizance or otherwise, to the satisfaction of such Justice, for " his appearance before him at the time and place appointed for the return of such warrant of distress. THE MA0I8TBATE 8 1£ANUAL. 93 or before Buch other Justice or Justices for the same territorial division as may then be there.^ 61. In all cases where a defendant gives security if daoindantdoei by recognizance as aforesaid, and does not after- »ppMr,th«r*- *> o ^ ' ^ oogniiuiM to b* wards appear at the time and place in the said recoe- MruiM by « ^. 1 .1 T X. 1 1 , » Clerk of th« nizance mentioned, the Justice who hath the 8ame,p«M*. or any Justice or Justices who may then be there present, upon certifying (F) on the back of the recognizance the non-appearance of the defendant, may, in Upper Canada, transmit such recognizance to the Clerk of the Peace for the territorial division within which the offence is said to have been com. mitted, to be proceeded upon in like maimer as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such non-appear- ance of the said defendant.! 62. If at the time and place appointed for theinddiuitorraf- return of any such warrant of distress, the constable, Jpeal the Court of General if costs of appeni or Quarter Sessions orders either party to pay costs, paid. the order shall direct the costs to be paid to the Clerk of the Peace of the court, to be by him paid over to the party entitled to the same, and shall state within what time such costs shall be paid. M THB MAOISTBATX^S MANUAL. irtiMyiwBol 67. If the Bame be not paid within the time bo omuib uai«u4 limited, and the party ordered to pay the same has tw Dot MCMUd « tr « » b7 raeoiBiMBM not been bound by any recognizance conditioned to pay such costs, the Clerk of the Peace or his deputy, on application of the party entitled to such costs, or of any person on his behalf, and on payment of a fee of twenty cents, shall grant to the party so applying a certificate (K) taat such costs have not been paid, and upon production of such certificate to any Jus- tice or Justices of the Peace for the same territorial division, he or they may enforce the payment of such costs by warrant of distress (S 1) in manner afore- said, and in default of distress, he or they may com- mit (S 2) the party against whom such warrant has issued in manner hereinbefore mentioned, for any time not exceeding two months, unless the amount of such costs and all costs and charges of the distress, and also the costs of the commitment and conveying of the said party to prison, if such Justice or Justices think fit so to order (the amount thereof being ascer- tained and stated in such commitment), be sooner • paid. onp*yaMDtof 68. In all cases where a warrant of distress has not to^ievM. issuod as aforesaid against any person, and such per- son pays or tenders to the constable having the exe- cution of the same, the sum or sums in such warrant mentioned, together with the amount of the expenses of such distress up to the time of payment or tender, such constable shall cease to execute the same. Or tiN pwty, If 69. In all cases in which any person is imprisoned BOB-miiMnt, as aforesaid for non-payment of any penalty or other «k«i«i. sum, he may pay or cause to be paid to the keeper of the prison in which he is imprisoned the sum in the warrant of commitment mentioned, together with the amount of the costs, charges and expenses (if any) therein also mentioned, and the said keeper shall receive the same, and shall thereupon discharge TUB MAOISTBATe's MANUAL. 07 stich person if he bo in his custody for no other matter. 70. In nil cages of summary proceedings Iwfore a in omm of nun- Justice or Justices of the Peace out of sessions, upononnJu.tice mv' any information or complamt as aforesaid, one Ju8-w«T»nti,*e. tice may receive such information or complaint, and grant a summons or warrant thereon and issue his summons or warrant to compel the attendance of any witnesses for either party, and to do all other acts and matters necessary preliminary to the hear- ing, even in cases where by the statute in that beh ilf such information and complaint must be heard and determined by two or more Justices. 71. After a case has been heard and determined, one ju»uc« may one Justice may issue all warrants of distress orofdistreMor commitment thereon. oommitment. 72. It shall not be necessary that the Justice who Aithongh not « 80 acts before or after such hearing, shall be the Jus-um! " °* tice or one of the Justices by whom the case is or was heard and determined. 73. In all cases where by statute it is required two jnsHcei thjit any information or complaint shall be heard decision, ao. and determined by two or more Justices, or that a conviction or order shall be made by two or more Justices, such Justices must be present and acting together during the whole of the hearing and deter- mination of the case. 74. In Lower Canada the fees to which any clerk Regulation m to of the Special Sessions, or clerk of the Weekly Sessions cimvat^, ° or clerk to any Justice or Justices out of sessions, is entitled, shall be ascertained, appointed and regu- lated in manner following, that is to say : the Jus- tices of the Peace, at their General or Quarter Sessions for the several districts, shall, from time to time, as T 08 THE^ MAGISTRATB'S MANUAL. they see fit, make tables of the feea which in tiieir o])iiiion should be paid to the clerks of the Special and Weekly Sessions, and to theclerksof the Justices of the Peace within their several juiisdictions, and ^ wliich said tables, being signed by the chainnan of every such court of General or Quarter Sessions, shall be laid before the secretary of this Province, and such secretary, if he sees fit, may alter such table or tables of fees, and subscribe a certificate or declara- tion that the fees specified in such table or tables, as made by such Justices, or as altered by such secre- tary, are proper to be demanded and received by the Clerks of the Special Sessions and Weekly Sessions and the clerks of the several Justices of the Peace respectively throughout Lower Canada, and such secretary shall cause copies of such table or set of tables of fees to be transmitted to the several Clerks of the Peace throughout Lower Canada, to be by them distributed to the Justices within their several districts respectively, and to be by the said Justices placed in the hands of their clerks respectively. Penalty for 75. If after sucli copv has been received by any clerkH receiyiDg * •' ti ^ J greater fee or gratuity for any business or act trans- acted or done by him as such clerk than such as is set down in such table or set of tables, he shall for- feit for every such demand or receipt the sum of eighty dollars, to be recovered by action of debt in ^ any court having jurisdiction for that amount by any person who will sue for the same. What fees clerks may demand. 76. Until such tables or set of tables are framed and confirmed, and distributed as aforesaid, such clerk or clerks may demand and receive such fees as they are now by any rule or regulation of a court of General or Quarter Sessions, or otherwise, authorized to demand and receive. THE magistrate's MANITVL. 99 77. In every waiTant of distress to be issued asRest«»a«oii8Mto •^ whom penalties, aforesaid in Lower Canada, the constable or otiier *" • are to be ' paid. person to whom the same is directed, shall be thereby ordered to pay the amount of the sum to be levied thereunder unto the Clerk of the Peace, Clerk of the Special Sessions, Clerk of the Weekly Sessions, or Clerk of the Justices of the Peace, {as tJie case may be,) for the place wherein the Justice or Justices issued 6uch warrant, and if a person convicted of any penalty, or ordered by a Justice or Justices of the Peace to pay any sum of money, pays the same to any constable or other person, such constable or other person shall forthwith pay the same to such Clerk of the Peace, Clerk of the Special Sessions, Clerk of the Weekly Sessions, or clerk of the Jus- tice of the Peace (as the case rnay he). 78. If any person committed to prison in Lower May pay penalty to gaoler. Canada, upon any conviction or order as aforesaid for non-payment of any penalty, or of any sum thereby ordered to be paid, desires to pay the same and costs before the expiration of the time for which he has been so ordered to be imprisoned by the war- rant for his commitment, he shall pay the same to the gaoler or keeper of the prison in which he is so imprisoned, and such gaoler or keeper shall forth- aaoier to pay the with pay the same to the said Clerk of the Peace,"™' Clerk of the Special Sessions, Clerk of the Weekly Sessions^ or Clerk of the Justice of the Peace {as the case may he). 79. All sums so received by the said clerk shall a« to whom /•I'll '111. 1 clerk Is to pay fortliwitli be paid by him to the party or parties to **»« ««»•• whom the same respectively are to be paid, accord- ing to the directions of the statute on which the in- formation or complaint in that behalf has been framed. , 100 THE MAaiSTRATE S MANUAL. In certain eases clerk to pay the same t* tr«a- snrer, Ac. 80. If Buch statute contains no such directions for the payment thereof to any person or persons, then sucli clerk shall pay the same to the treasurer of the district, municipality, city, town or borough in which such person has been so condemned to pay the said sum, and for which such treasurer shall give him a receipt. Said clerks and 81. Evory such Clcrk of tlio Special Sessions, f^nict account Clcrk of the Weekly Sessions, or Clerk of the Jus- moneys received tico of the Pcacc, and every such gaoler or keeper y em, c. ^^. ^ pj.jgQjj^ shall kccp a true and exact account of all such moneys by him received, of whom and when received, and to whom and when paid, and shall once in every three months render a fair copy of every such account to the Clerk of the Peace for the district in which such payment has been made, who shall likewise every three months render a similar account to the Justices assembled at the Quarterly Sessions of the Peace for the said district, as also, once every month to the Justices assembled at the Weekly Sessions of the Peace. Inspector, Ac, may act alone. 82. Any one Inspector and Superintendent of Police, Police Magistrate or Stipendiary Magistrate, appointed for any city, borough, town, place or ter- ritorial division, and sitting at a police court or other place appointed in that behalf, shall have full power to do alone whatever is authorised by this act to be done by two or more Justices of the Peace ; and the several forms hereinafter contained may be varied so far as it may be necessary to render them appli- cable to the police courts aforesaid, or to the court or other place of sitting of such stipendiary magis- trate. To have power in preserring order. 83. Any Inspector and Superintendent of Police, Police Magistrate or Stipendiary Magistrate as afore- THE magistrate's MANUAL. said, sitting as aforesaid at any police court or other place appointed in that behalf, shall have such and like powers and authority to preserve order in the said courts during the holding thereof, and by the like ways and means as now by law are or may be exercised and used in like cases and for the like pur- poses by any courts of law in this province, or by the Judges thereof respectively, during the sittings thereof. 101 84. The said Inspectors and Superintendents of And for enforcing Police, Police Magistrates and Stipendiary Magis-^ trates, in all cases where any resistance is offered to the execution of any summons, warrant of execution or other process issued by them, may enforce the due execution of the same by the means provided by the law for enforcing the execution of the process of other courts in like cases. 85. In all the cities, towns and other places incierkaofthe Psoco In li G Lower Canada where General or Quarter Sessions of toactw cierki the Peace are held, the Clerk or Clerks of the Peace shall act as Clerk or Clerks of the Justices of the Peace and of the Inspectors or Superintendents of Police, in such cities, towns and other places, as well at all Special as at all Weekly Sessions of the Peace held therein. 86. The words " Territorial Division " whenever Meaning of used in this act, shall mean in Lower Canada — dis- vision." trict, township, parish, or other place, and in Upper Canada — county, union of counties, township, city, town or other place to which the context may apply. 87. The word "Prison" whenever it occurs in Meaning of " Prison " this act, shall be held to mean any place where par- ties charged with offences against the law are usually ^ kept and detained in custody. 102 THE magistrate's MANUAL. ForauofBcheduie 88. The several forms in the schedule to this act to be valid, *c. g^jj^^jyjgtj^ qf forms to the like effect, shall be deemed good, valid and sufficient in law, and the word " dis- trict," as used therein, is intended to apply to Lower Canada; and the words "county" or "united coun- ties," to Upper Canada. * [lOS] SCHEDULES REFERRED TO IN THE FOREGOING ACT. (A) See 8. 1. SUMMONS TO THE DEFENDANT UPON AN INFORMATION OR COM- PLAINT. Province of Canada, District (or county, united counties, or as the ease may be) of To A. B., of (laborer). Whereas information hath this day been laid [or complaint hath this day been made) before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, city, town, &c., as the case may be), of for that you (here state shortly the mat- ter of the information or complaint) : These are therefore to command you, in Her Majesty's name, to be and appear on at o'clock in the forenoon, at before me or such Justices of the Peace for the said district (or county, united counties, or as the case may be), as may then be there, to answer to the said information (or complaint), and to be further dealt with according to law. Given under (my) hand and seal, this day of in the year of our Lord at in the district (county, or as the case may be) aforesaid. J. S. [l. s.] (B) See s. 6. WARRANT WHEN THE SUMMONS IS DISOBEYED. Province of Canada, District (or county, united counties, or as the case may ie)of To all or any of the constables or other peace officers in the district (or county, united counties, or as the case may be) of Whereas, on last past, information was laid (or complaint was made) before (one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the case may be) of for that A. B. {Sc, as in the summons) : And whereas (/) the said Justice of the Peace, then issued (my) summons unto the said A. B., com- manding him in Her Majesty's name to be and appear on at o'clock in the forenoon, at before (me) or such Justices of the Peace as might then be there, to answer unto the said information (or complaint) and to be further dealt with according to law ; And whereas the said A. B. 104 THB magistrate's MANUAL. hath neglected to be and appear at the time and place so appointed in and by the said summons, although it hath now been proved to me upon oath that the said summons hith been duly served upon the said A. B. : These are therefore to command you, in Her Majesty's name, forthwith to appre- hend the said A. B. and to bring him before (me) or some one or more of Her Majesty's Justices of the Peace in and for the said district (or covnty, united counties, or as the case may he), to answer to the said information (or complaint), and to be further dealt with according to law. Given under my hand and seal, this day of in the year of our Lord at in the district (or county, united counties, or as the case may be) aforesaid. J. S. [l. 8.] (C) See s. 6. WARRANT IN THE FIRST INSTANCE. Province of Canada, District (or county, united counties, or a» the case may he)oi To all or any of the constables or other peace officers in the said district (or county, united counties, or as the case may he) of Wheret^s information hath this day been laid before the undersigned^ ipne) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the case may J«) of for that A. B. {here state shortly the matter of information) ; and oath being now made before me substantiating the matter of such information : These are there- fore to command you, in Hw Majesty's name, forthwith to apprehend the said A. B. and to bring him before {me) or some one or more of Her M^esty's Justices of the Peace in and for the said district (or county^ uni- tea counties, or as the case may he), to answer to the said information, and to be further dealt with according to law. Given under my hand and seal, this day of in the year of our Lord at in the district (county, &c., as the case may he) aforesaid. J. S. [l. s.] (D) See ss. 12, 22, 34, 46. WARRANT OF COMMITTAL FOR SAFE CUSTODY DURING AN ADJOURNMENT OF THE HEARING. Province of Canada, District (or county, united counties^ or as the case may he) of To all or any of the constables or peace officers in the district (or county^ united counties, or as the case may he) of and to the keeper of the {common gaol or loeh-up house) at : Whereas, on last past, information was laid {or complaint made) before {one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, as the case may he) of for that {&c. as in the summons) ; Ajid whereas the hearing of the same is adjourned to the day of {instant), at o'clock in the (/or«) THE magistrate's MANUAL. 105 noon, at and it is necessary that the said A. B. should in the mean- time be kept in safe custody : These are therefore to command you, or any one of the said constables or peace officers, in Her Majesty's name, forth- with to convey the said A. B. to the [common gaol or lock-up house) at ■ and there deliver him into the custody of the keeper thereof, together with this precept : And I hereby require you, the said keeper, to receive the said A. B. into your custody in the said {common gaol or lock-up house) and there safely keep him until the day of -— ^ (instant), when you are hereby required to convey and have him, the said A. B., at the time and place to which the said hearing is so adjourned as aforesaid, before such Justices of the Peace for the said district (or county, united counties, or as the case may he) as may then be there, to answer further to the said infor- mation (or complaint), and to be further dealt with according to law. Given under my hand and seal, this day of in the year of our Lord at in the district (or county, &c., as the case may he) afore- said. J. S. [l. s.] I — ♦- (E) See ss. 12, 22, 34^ 46. RECOGNIZANCE FOR THE APPEARANCE OF THE DEFENDANT, WHEN THE CASE IS ADJOURNED OR NOT AT ONCE PRO- CEEDED WITH. Province of Canada, District (or county, united counties^ or as the case may Je)of Be it remembered, That on A. B. of • of {grocer), and 0. P. of — (laiorer), and L. M. (yeoman), personally came and appeared before the undersigned (one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the ease may he) of and severally acknowledged themselves to owe to our Sovereign Lady the Queen the several sums following, that is to say : the said A. B. the sum of and the said L. M. and 0. P. the sum of ■ each, of good and lawful current money of this Province, to be made and levied of their several goods and chattels, lands and tenements respec- tively, to the use of our said Lady the Queen, her heirs and successors, if he the said A. B. shall fail in the condition endorsed (or hereunder written). Taken and acknowledged, the day and year first above mentioned, at before me. J. S. [li. s.] The condition of the within (or the above) written recognizance is such, that if the said A. B. shall personally appear on the day of (instant), at o'clock in the (Jore) noon, at before me or such Justices of the Peace for the said district (or county, united counties, or as the case may he) as may then be there, to answer further to the informa- tion {or complaint) of C. D. exhibited against the said A. B. and to be further dealt with according to law, then the said recognizance to be voidf or else to stand in full force and virtue. 106 THE MAGISTRATE'S MANUAL. NOTICE OF SUCH RECOGNIZANCE TO BE GIVEN TO THE DEFENDANT AND HIS SURETIES. Take notice, that you, A. B., are bound in the sum of and you L. M. and 0. P., in the sum of each, that you, A. B., appear person- ally on at o'clock in the (/ore) noon at before me or such Justices of the Peace for the disirict (or county^ united counties, or as the case may be) of as shall then be there, to answer further to a certain information {or complaint) of G. D., the further hearing of which was adjourned to the said time and place ; and unless you appear accordingly, the recognizance entered into by you, A. B., and by L. M. and 0. P. as your sureties, will forthwith be levied on you and them. Dated this day of one thousand eight hundred and J. S. [l. s.] ^ (F) See ss. 13, 23, 35, 49, 61. CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON THE DEFENDANT'S RECOGNIZANCE. I hereby certify, that the said A. B. hath not appeared at the time and place in the said condition mentioned, but therein hath made default, by reason whereof the within recognizance is forfeited. J. S. [l. s.] (G, 1) See 8. 16. SUMMONS TO A WITNESS. Province of Canada, District (or county, united counties, or as the case may le) of To E. F. of in the said district (or county, united counties, or as the case may he) of . Whereas information was laid [or complaint was made) before (one) of Her Majesty's Justices of the Peace, in and for the said district (or county, united counties, or as the case may he), of for that ( Bo it remembered, That on the day of in the year of our Lord at in the said district (or county, united countiea, or a* the cn$e may he,) A. B. is convicted before the undersigned, (one) of Her Majesty's Justices of the Peace for the said district (or county, united coun- ties, or as the case may be), for that he the said A. B. (dc, stating the offence, and the time and place vsheti and inhere it was committed), and I a(\judgo the said A. B. for his said offence to forfeit and pay the sum of (stating the penalty and the compensation, if any), to be paid and applied according to law; and also to pav to the said 0. D. the sum. of for his costs in this behalf; and if the said several sums be not paid forthwith (or, on or before next,) I adjudge the said A. B. to be imprisoned in the common gaol of the said district (or county, united coun- ties, or as the case may be,) at in the said district or county of (and there to be kept at hard labor) for the space of unless the said sums and the costs and charges of conveying the said A. B. to the said common gaol, shall be sooner paid. Given under my hand and seal, the day and year first above mentioned, at in the district (or county, united counties, or as the case may he,) aforesaid. J. S. [l. 8.] (I, 8) See ««. 42, 50. CONVICTION WHEN THE PUNISHMENT IS BY IMPRISONMENT, Ac. Province of Canada, District (or county, united counties, or as the ease may he) of — — Be it remembered, That on the day of in the year of our Lord in the said district (or county, united counties, or as the case may be, ) A. B. is convicted before the undersigned (one) of Her Majesty's Justices of the Peace in and f-^'" the said district (or county, united coun- ties, or a* the case may he), lor that he the said A. B. (&c., stating the offence and the time and place when and where it was committed) ; and I adjudge the said A. B. for his said offence to be imprisoned in the common gaol of the said district (or county, united counties, or as the case may be\ at in the county of (and there to be kept at hard labor) for the space of ; and I also adjudge the said A. B. to pay to the said 0. D. the sum of for his costs in this belwli^ and if the said sum for THE MAOIfiTtlATE's MANUAL. HI costs bo not paid forthwith, (or on ot before next), then * T order that tlic snid Hum be levied by distress an() »ale of the goods mid cbnttelfl of the Huid A. H. ; and in default of Mufflcient distn >8 in that behalf, ♦ I a<\)udge the xaid A. H. to bo imprisuncd in the said ((iiitinon gaol, {and kept there (it hard labor) for the Hpacc of to pommence at and from the term of Iuh imprisonment aforesaid, ui >lcss the «ai (M) Sees.4B. CERTIFICATE OP DISMISSAL. I hereby certify that an information (or complaint) preferred by C. D. against A. B. for that (or as in the summons), was this day considered by me, one of Her Majesty's Justices of the Peace in and for the district (or county, united counties, or as the case may be) of ■ and was by me dismissed {with costs). Dated this — — day of— one thousand eight hundred and — — . . J. S. [l. s.] . . — • — (N,l) See. 8.57. WARRANT OF DISTRESS UPON CONVICTION FOR A PENALTY. Province of Cicada, District (or county, united counties, or as the ease may he) of To all or any of the constables or other peace ofBcers in the said district (or county, united -counties, or as the case may be) of Whereas A. B., late of •;;; (laborer) was on this day (or on last past) duly convicted llTefore (one) of Her Majesty's Justices of the Peace in and for the said di^ct (or county, united counties, or as the case may be) of ' for that (stating^he oMnce as in the conviction), and it was thereby adjudged that the said A. B. should for such his offence forfeit and pay ((£<;., as in the afnviction), and should also pay to the said C. D. tiie sum of for his cdbi^ in that behalf; and it was thereby THE magistrate's MANUAL. 115 ordered that if the said several sums should not be paid {foiihwith) the same should be levied by distress and sale of the goods and chattels of the said A. B. ; and it was thereby also adjudged that the said A. B., in default of sufficient distress, should be imprisoned in the common gaol of the said district (6r county, united counties, or as the case may he), at in the said county of (and there to be kept at hard labor) for the space of unless the said several sums and all costs and charges of the said distress, and of the commitment and conveying of the said A. B. to the said common gaol, should be sooner paid ; And whereas the said A. B., being so convicted as aforesaid, and being {now) required to pay the said sums of and hath not paid the same or any part thereof, but therein hath made default : These are therefore to command you, in Her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B. ; and if within days next after the making of such dis- tress, the said sum» together with the reasonable charges of taking and keeping the distress, shall not be paid, then you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale unto me (the convicting Justice or 07ie of the convicting Justices), that I may pay and apply the same as by law is directed, and may render the over- plus, if any, on demand to the said A. B. ; and if no such distress can be found, then that you certify the same unto me, to the end that such further proceedings may be had thereon as to law doth appertain. Given under my hand and seal, this day of in the year of our Lord at in the district (or county, or as the case may be) afore- said. J. S. [l. s.] (N, 2) Sees. 57. WARRANT OF DISTRESS UPON AN ORDER FOR THE PAYMENT OF MONEY. Province of Canada, District (or county, united counties, or as the case may be) of To all or any of the constables or other peace ofScers in the said district (or county, united counties, or as the case may be) of Whereas, on last past, a complaint was made before [one) of Her Majesty's Justices of the Peace in and for the said district (or county, united counties, or as the case may be), for that {<&€., as in the order), and afterwards, to wi^ on at the said parties appeared before (as in the order), and thereupon having considered, the matter of the said complaint, the said A. B. was adjudged (to pay to the said C. D. the sum of on or before — •— then next), and also to pay to the said 0. D. the sum of for his costs in that behalf; and it was ordered that if the said several sums should not be paid on or befSre the said then next, the sitme should be levied by distress and salt of the goods and chattels of the said A. B. ; and it was adjudged^at in default of sufficient distress in that behalf, the said A. B. should be imprisoned in the common gaol of the said district (or county, ^nited eowMies, or as the case may be) at in the said county of^— — ^ X^^^d Mere kept at hard labor) for the space of unless the said several sums and all costs and charges of the distress (and qf the co: in the district (county, or as the case may be) aforesaid. J. S. [l. s.] ; III W^'^ ^*n-)^ ■ 1. 1 tf^ i i;*{'.i %W V ». . ■' t • ■ ,.wi.>i!-j-i-w«piigi^ [128] THE CRIMINAL LAW OF UPPER CANADA. " The Criminal Law of England, as it stood on the seventeenth day of September, in the year of our Lord one thousand seven hundred and ninety-two, and as the same has since been repealed, altered, varied, modified, or aflfected by any Act of the Imperial Parliament having force of law in Upper Canada, or by any Act of the Parliament of the late Province of Upper Canada, or of the Province of Canada, shall be the Criminal Law pf Upper Canada." (Con. Stat. U. C. c. 94, s. 1.) ABDUCTION. Abduction is an oiSfence at common law, though the party so taken away may be consenting to a marriage. Abduction of Heiresses. — Con. Stat. C, c. 91, declares the abduction of an heiress from pecuniary motives to be a felony. It enacts, by s. 26, as follows: - • < " In case any woman has an interest, whether legal or equit- able, present or future, absolute, conditional, or contingent, in any real or personal estate, or be an heiress presumptive or next of kin to any one having such interest, any person who, from motives of lucre, takes away or detains such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person, and every person counselling, aiding or abetting such offender, shall be guilty of felony, and shall respectively be imprisoned in the Penitentiary for any term not less than two years, or be im- prisoned in any other prison or place of confinement for any term less than two years."* * In proceedings upon this section it will be necessary to prove : let. That the prisoner took or detained the woman against her will. 2nd. That the woman THE magistrate's MANUAL. 129 Abduction of Females under Sixteen. — " Any person who unlawfully takes or causes to be taken away any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour, and shall be punished by fine or imprison- ment, or by both, as the court shall award."* (Con. Stat. C. c. 91,8.26-) . .. - . . • .. , Decoying Children under Ten. — " Any person who mali- ciously, either by force or fraud, leads or takes away, or decoys, or entices away or detains, any child under the age of ten years, with intent to deprive the parent or parents, or any other person or persons having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such cliild, to whomsoever such article may belong ; and any person who, with any such intent, receives or harbours any such child, knowing the same to have been by force or fraud, led, taken, decoyed, enticed away or detained as hereinbefore mentioned ; and any person who counsels, aids or abets any such offender, shall respectively be guilty of felony, and shall be imprisoned at ha' d labour in the Penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Con. Stat. C. c. 91, s. 27.) To this there is an exception, as follows : "No person who claims to be the father of an illegiti- mate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue of the last section, on account of his getting possession of such child, or taking such ■i'; has an interest, or ia next of kin to some person who has an interest, in real or personal property. Srd. That the prisoner did so from motives of lucre. 4th. Intent to marry or defile, or cause to be married or defiled. The expressions of the prisoner with regard to her property may be taken as evidence of such motive. The woman is a competent witness against the prisoner, although the marriage ceremctny may have actually been performed; as this is a case in which her liberty and person are affected. (Russell on Crimes, i. 709; Bosooe's Crim. Evid. 246.) * No improper motive need here be proved. Proof of the taking out of posses- sion and of the want of consent on the part of parent or guardian, is necessary. Illegitimate children are under the protection of this section. It is no excuse that the girl consented. 130 THE magistrate's MANUAL. child out of the possession of the mother, or any other person having the lawful charge thereof." (Con. Stat. C. c. 91, s. 28). ABORTION. An attempt to procure abortion is an oifence at common law, and is made a felony by Consol. Stat. 0. c. 91, s. 24, which enacts as follows : " Any person who with intent to pro- cure the miscarriage of any woman, unlawfully administers to her, or causes to be taken by her, any poison or other noxious thing, or unlawfully uses any instrument or any means what- soever with the like intent, shall be guilty of felony, and shall be imprisoned in the Penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years."* ABUSE OF INFANTS. Undee Ten. — By Con. Stat. C. c. 91, s. 20, this oflfence is made a felony: "Any person who unlawfully and carnally knows and abuses any gi^l under the age of ten years, shall be guilty of felony, and shall suffer death as a felon."* Above Ten but under Twelve. — This is made a misde- meanour by Con. Stat. C. c. 91, s. 21, which enacts that " Any person who unlawfully and carnally knows and abuses any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour, and shall be imprisoned for such term as the court may award." f • But few of the crimes punishable under this section are ever investigated, and therefore when a case does come before a justice, he should thoroughly ex< amine it, and obtain all the evidence necessary to cause justice to be done. Vying dedaratUms of the woman are not admissible as evidence. In proof of adminis- tering, it is necessary that the noxious drug should have entered the stomach ; actual delivery by the hand of the prisoner is however not necessary. As proof of the intent, proof that the child would be chargeable to the prisoner as the reputed father, or proof of secrecy in administering, is good. (Roscoe's Orim. Evid. 261). f Proof of penetration, however slight, will be sufficient to constitute the crime. (Roscoe's Crim. Evid. 848). The justice who receives the information should learn as to whether or not THE magistrate's MANUAL. 131 ACCESSORIES AND ABETTORS. Aiders a/ad abettors are all those who are present aiding and abetting where a felony is committed. (Roscoe's Crim. Evid. p. 184). The acts hitherto in force with regard to accessories, aiders, and abettors, in indictable offences, viz. : Con. Stat. C. ch. 97 and 99, s. 43, are repealed by Stat. 27-28 Vic. c. 19, which enacts as follows : As TO Accessories to Felony before the Fact. — " 2. Whosoever shall become an accessory before the fact to any felony, whether the same be a felony at Common Law, or by virtue of any Act passed or to be passed, may be indicted, tried, convicted and punished in all respects as if he were a principal felon. . . " 3. Whosoever shall counsel, procure or command any other person to commit any felony, whether the same be a felony at Common Law, or by virtue of any Act passed or to be passed, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substan- tive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner V'^ [fi |[l i % if ^ 1 w '1 1[ Bf',! IE 11 the girl has been examined by a physician ; and if he finds that she has not, he should at once cause her to be so examined. The ^irl should be asked as to how often, if more than once, she has been abused by the prisoner ; and if upon more than one occasion, then the place where she was so abused each time should be stated. Though the witness may not be able to state the day of, the month when so abused, she may be able to state some circumstance which may assist in fixing the date. If upon the trial of a case where there has been abuse on more than one occasion, the counsel for the crown neglects to put a count in the indictment charging the prisoner with each offence, he can give evi. dence of one offence only. The chief witness of the crown in such cases is of tender years, and if told upon her examination in chief that she can only state as to one occasion when she was abused, and is ably cross-examined by the counsel for the prisoner, as to circumstances in some way connected with the other occasions, she is likely to give evidence one portion of which may contradict another^ «ad thereby raise a doubt sufficient to cause the acquittal of the criminaL 132 THE MAGI8TBATE 8 MANUAL. as any accessory before the fact to the same felony, if convicted as an accessory, may be punished."* As TO Accessories to Felony after the Fact. — " 4. Whosoever shall become an accessory after the fact to any felony, whether the same be a felony at Common Law, or by virtue of any Act passed or to be passed, may be indicted and convicted, either as an accessory after the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and con- victed of a substantive felony, whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished. " 5. Every accessory after the fact to any felony (except where it is otherwise specially enacted), whether the same be a felony at Common Law, or by virtue of any Act passed or to be passed, shall be liable at the discretion of the Court to be imprisoned * An accessory fie/bre the fact ia one who, being absent at the time of the offence committed, does yet procure, counsel, command or ab«t another to commit an offence. The bare concealment of a felony to be committed will not make a man an accessory, nor yet words indicating a mere permission, as, for example : •" You may kill A, for all I care." If before the commission of the offence by the principal, the accessory conntermands him, and yet the principal proceeds to do the deed, he who commanded him will not be an accessory. If the party was present when the offence was committed, he is not accessory, but principal. A person may become an accessory by the intervention of a third person, without direct communication between himself and the principal; so, where A tells his servant to hire some one to murder B, and the servant hires C, A is accessory to the murder of B. It is not necessary to prove that the degree of incitement was very great ; for that it was sufficient to actuate the deed is proved by the result. It is also unnecessary to show that the crime was committed in conse- quence of that Incitement ; and it is no defence that the deed would have been committed, though the incitement had never taken place. Where the principal varies in committing the offence from the command or advice of the accessory, if the principal tott^y and substantially varies ; if, being solicited to commit a felony of one kind, he knowingly and teUfudly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in the guilt. But if the principal in tubstance complies with the command, and varies only in the attendant circumstances, the person soliciting will be an accessory before the fact, and if present, a principal. For instance, A orders B to poison C, and B shoots C, A is accessory to the murder of C. Where the principal goes beyond the term of solicitation, if in the event the felony committed was a probable consequence of the command, the person giving such order will be an accessory. As, for example, A orders his servant to waylay and beat B, and B dies in consequence, A is accessory to the murder. (Roscoe's Criminal Evid. 186, and following pages.) THE MAGISTRATE 8 MANUAL. 133 in the Common Gaol or House of Correction for any tenn not exceeding two years, with or without hard labour ; and it shall be lawful for the Court, if it shall think fit, to require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to such punishment ; provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding one year."* As TO Accessories generally. — " 6. If any principal of- fender shall be, in any wise, convicted of any felony, it shall be lawful to proceed against any accessory, either before or after tlie fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die or be pardoned, or otherwise delivered, before attainder; and every such accessory shall, upon conviction, suffer the same punishment as ^he would have suffered if the principal had been attainted. " 7. Any number of accessories, at different times, to any felony, and any number of receivers, at different times, of property stolen at one time, may be charged with substantive felonies in the same indictment, and may be tried together, * An accessory afttr the fact is one who, knowing the felony to be committed by another, receives, relieves, comforts or assists a felon. The wife, however, does not become an accessory by receiving her husband after the commission of an offence ; the husband, nevertheless, is made an accessory by so receiving his wife, for the relationship of the wife to the husband is the only one whicli is excepted. If husband and wife receive a felon, it shall be deemed the husband's act only, but if the wife alone, without her husband's knowledge, the wife alone is accessory. Any assistance whatever given to a person known to be a felon, in order to hinder his being apprehended, tried or punished, as giving him a horse, or money, or food to aid his escape, or harbouring or concealing him, or procuring another to harbour or conceal him, makes a man an accessory after the fact. Any one who rescues a felon from imprisonment or punishment, or conceals such rescue or escape, or who conveys instruments to him to enable him to break gaol, is an accessory, Merely suffering a felon to escape before his arrest is not sufficient, nor is any attempt to obtain a pardon or release, or persuading wit- nesses against a felon not to give evidence, nor even agreeing for money not to give evidence. The felony must be complete at the time of the assistance given. So a person assisting another who had mortalW^ wounded a third, before death ensued, was not accessory to the homicide. "To make a man an accessory, he must have notice, express or implied, of the principal having committed a felony. (With regard to trial and punishment of accessories, see Con. Stat. C. c. 103, 8. 15, p. 76 of this work.) \ tt ll t K y* 134 THE MAGISTRATE S MANUAL. notwitlistandiiig the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice. " 8. Where any felony shall have been wholly committed witliin this Province, the offence of any person who shall be an accessory, either before or after the fact, to any such felony, may be dealt with, inquired of, tried, determined and punished by any Court which shall have jurisdiction to try the principal felony, or any felonies, committed in any county or place in which the act by reason whereof such person shall become such accessory, shall have been committed ; and, in every other case, the offence of any person, who shall be an accessory, either before or after the fact, to any felony, may be dealt with, inquired of, tried, determined and punished by any Court which shall have jurisdiction to try the principal felony, or any felonies committed in any County or place in which such person shall be apprehended or be in custody, whether the principal felony shall have been committed on the sea or on the land, or begun on the sea and completed on the land, or begun on the land and completed on the sea, and whether witliin Iler Majesty's dominions or without, or partly witliin Her Majesty's dominions and partly without; provided that no person who shall have been once duly tried, either as an accessory before or after the fact, or for a substantive felony, under the provisions hereinbefore contained, shall be liable to be afterwards prosecuted for the same offence. As TO Abettors in Misdemeanors. — "9. Whosoever shall aid, abet, counsel or procure the commission of any misde- meanor, whether the same be a misdemeanor at Common Law, or by virtue of any Act passed or to be passed, shall be liable to be tried, ipdicted and punished as a principal offender." Clerical Error corrected. — " 11. The seventieth section of the said ninety-ninth chapter of the Consolidated Statutes of Canada, intituled: An Act respecting the procedure in Criminal cases, shall be construed and have effect as if instead of the words ' eighteenth and fifteenth,' the words ' twenty- THE magistrate's MANUAL. 136 second and nineteenth' had been inserted therein when the said Act was passed ; and as if, instead of tha words ' sixteenth and seventeenth,' the words ' twentieth and twenty-first ' had been inserted therein when the said Act was passed." ACCOMPLICE. A justice has no power to make a promise of pardon, and it is his duty to commit an accomplice for trial, though it is intended that he should give evidence for the prosecution. When the evidence would be too weak to justify a commit- ment, independently of the testimony of the accomplice, the proper course seems to be, to take the deposition of the accomplice in the usual way, cautioning him at the same time that he is not bound to say anything that may criminate himself. In this case the accomplice would be bound over as a witness. , . AFFRAY. V An affray is the fighting of two or more persons, in some public place, to the terror of the Queen's subjects ; for if the fighting be in private, it is not an affray, but an assault. It differs from a riot, in not being premeditated. Thus, if persons meeting at a fau', or on any other lawful occasion, happen on a sudden quarrel to engage in fighting, they are guilty of an affray only, not of a riot. Two persons may be guilty of an affray, but it requires three or more to constitute a riot. On a charge of affray, the prosecutor must prove : 1, the fighting, &c. ; 2, that it was in a public place ; 3, that it was to the terror of Her Majesty's subjects ; 4, that two or more were engaged in it. In the case of a prize fight, it was held to be neither a riot nor an affray, but only an assault ; for, first, it took place on private property, at some distance from the highway; next, it was not to the terror of Her Majesty's subjects, for the spectators were evidently assembled for the express purpose of witnessing the fight ; and lastly, the prisoners had quietly surrendered to the oflficers by whom they were arrested. 136 THE magistrate's MANUAL. The punishment for a common affray is by fine and impri- sonment; the measure of which must be regulated by the circumstances of the case. (Roscoe's Crim. Evid. 252.) APPEALS. The cases in which an appeal from a Magistrate's decision is allowed, and the conditions of such appeal, are determined by tiie following statutes : '^ = Appeals against Convictions. — In case any person thinks himself aggrieved by any conviction under the foregoing criminal acts, he may, within three days after such conviction, and seven days before the first Court of General Quarter Sessions for the district, held not sooner than twelve days next after such conviction or decision, give to the other party a notice in writing of his intention to appeal ; and in case such person remains in custody until such Sessions, or enters into a recogni- zance with two suflicient sureties before a Justice of the Peace, conditioned personally to appear at such Sessions, to abide the judgment and pay the costs awarded, such person may appeal to the Quarter Sessions ; and the Court shall at such Sessions hear and determine the matter of appeal, and shall make such order therein, either with or without costs ; and in case of dis- missal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction and to pay such costs as shall be awarded, and shall if necessary issue process for enforcing such judgment. (Con. Stat. C. c. 99, s. 117.) Party entering into Recognizance to be liberated. — Party entering into recognizance, on giving notice of appeal, is to be liberated. (Ih. s. 118.) Appeals triable by Jury. — "In appeals made from the decision of any Justice, the Quarter Sessions has power to empannel a jury to try the matter; and the Court, on the finding of the jury under oath, shall give judgment, but shall not adjudge the payment of a fine exceeding the sum specified in the conviction in addition to the costs, or order the impris- onment of the person so convicted exceeding the time specified THE magistrate's MANUAL. 137 ill the conviction ; and, unless otherwise specially provided, all fines recovered by such Court shall be applied and disposed of in the same manner as other fines in)po3ed by a Justice of the Peace." (/J. s. 119.) Appeals in oases of Summary Conviction. — "In case a person, complainant or defendant, thinks himself aggrieved by an order, decision or conviction before any Justice or Jus- tices of the Peace, Mayor, or Police Magistrate, in any matter cognizable by such Justice or Justices of the Peace, Mayor, or Police Magistrate, not being a crime, then in case, within four days after the conviction, order or decision, and eight days before the first Quarter Sessions of the Peace to be held not sooner than twelve days next after such order, decision or conviction, the party aggrieved gives to the other party, or leaves with the convicting Justice for him, a noti(^e in writing of his intention to appeal, and of the caiise and matter thereof; and in case of an appellant in custody, if he either remains in custody until such Sessions, or entere into a recogni- zance with two suflicient sureties before a Justice of the Peace, conditioned to appear at the said Quarter Sessions, and try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded ; or in case the appellant be on bail, if he enters into such recognizance as aforesaid ; such appellant may appeal to such Court of Quarter Sessions, and such Court shall at such Sessions hear and deter- mine the matter of such appeal, and make such order therein, with or without costs to either party, as to the Court seems meet : and iir case of the dismissal of the appeal, or of the aflSrmance of the order, decision or conviction, the Court shall order and adjudge the order, decision or conviction to be enforced, and the appellant to pay such costs as may be awarded, and shall if necessary issue process for enforcing the judgment of the Court." (Con. Stat. U. C. c. 114, sec. 1.) " In case a party in custody has given notice of appeal, and entered into a recognizance according to the provisions of the foregoing section, then the Justice before whom such recog- nizance was entered into shall liberate such party." {Ih. s. 2.) I 138 THE magistrate's MAKTTAL. "Wlieiicvor any appeal is made from the decision, order or conviction of any Justice, Mayor or Police Magistrate, the Court of Quarter Sessions appealed to shall, at the request of either appellant or respondent, empannel a jury to try the matter on which such decision has been made, and shall administer to such jury the following oath : — * You do solemnly swear that you will well and truly try the matter of the com- plaint of C. D. against E. F., and a true verdict give, according to the evidence. So help you God.' And the Court, on the finding of such jury, shall thereupon give such judgment as the circumstances of the case require, not however exceeding the amount of penalty or period of imprisonment that might have been imposed or awarded under any law giving cogni- zance to the convicting Justice, Mayor or Police Magistrate." (lb. s. 3.) "Any appellant may abandon his appeal by giving the . opposite party notice of such intention in writing six days before the Sessions appealed to ; and thereupon the convicting Justice, Mayor or Police Magistrate may tax the respondent's additional costs, if any, and add the same to the original costs, and proceed on the original order, decision or conviction, in the same manner as if there had been no appeal thereon." (lb. 8. 4.) "An appeal shall lie in like manner from all decisions, orders and convictions made by any Justice of the Peace, or by any person authorized to act in that capacity, upon com- plaints against any person for committing any offence against any by-law of any Municipal Council." {lb. s. 6.) " In this Act the words ' Quarter Sessions ' include Recor- der's Courts." (/J. s. 6.) Appeals from Quarter Sessions and Recorder's Courts. — "When a person has been convicted of any treason, felony or misdemeanor, before a Court of Oyer and Terminer, or Gaol Delivery, or Quarter Sessions, such person may apply for a new trial upon any point of law or question of fact, in as ample a manner as any person may apply to the Superior Courts of common law for a new trial in a civil action." (Con. Stat. U. C. c. 113, B. 1.) THE MAGISTRATES MANUAL. 130 " "Wlicn the conviction takes place at a Court of Quarter SosHions, the application for a new trial Bhall be to such Court." {Ih. s. 0.) " In such case, if the conviction ho affirmed, a further appeal Bhall lie to either of the Superior Courts of common law." {Ih. 8. 7.) " In the event of such an appeal, the Court of Quarter Ses- sions shall state, in a case to bo prepared by the ai)pcllant, and approved by the Court, and signed by the chairinjin or Recorder, the question or questions of law or fact upon which the new trial was applied for, together with the circumstances upon which the same arose, and the judgment of the Court, with the reasons therefor." {Th. s. 8.) "The case shall be transmitted by the Court of Quarter Sessions to one of the Superior Courts of common law, on or before the first day of the term of the Superior Court next after the time when the rule or order appealed from was made." {Ih. 8. 9.) " The judgment of the Superior Court on the appeal from the Quarter Sessions shall be final. {Ih. s. 10.) " In this Act the words * Quarter Sessions ' include Recor- der's Courts." {Ih. 8. 18.) a lof it. ARREST. The duty of a constable in case of arrest is clearly laid down in Con. Stat. C. c. 102, s. 25. {Ante, p. 35.) How AN Arrest is made. — In executing a warrant, the arrest is to be made by laying hold of, or at least securing, the person of the party to be arrested ; for without this it is not a legal arrest. Arrest op Offenders caught in the act. — " Any person found committing an offence, punishable either upon indict- ment or upon summary conviction, may be immediately appre- hended by any p?.ace officer, without a warrant, or by the owner of the property, on or with respect to which the offence is committing, or by his servant or any other person authorized 140 THE MAGI8TBATB 8 MANUAL. by such owner, and shall be forthwith taken before some neigh- bouring Justice of the Peace, to be dealt with according to law.""* (Con. Stat. C. c. 99, s. 1.) Arrest op Persons in possession of Goods supposed to have BEEN stolen. — " In case any person to whom ai\y property is oifered to be sold, pawned or delivered, has reasonable cause to suspect that any such offence has been committed, on or with respect to such property, he mtiy, and if in his power, shall apprehend and forthwith carry before a Justice of the Peace the party offering the same, together with sucli property, to be dealt with according to law." f {Ih. s. 3.) Arrest op Oppenders caught in the act in the Night. — " Any person may apprehend any other person found commit- ting any indictable offence in the night, and shall convey or deliver him to some constable or other peraon, in order to his being taken, as soon as conveniently may be, before a Justice of the Peace, to be dealt with according to law.":}: {Ih. s. 4.) When a Constable may Arrest wrrnouT a Warrant. — " Any constable or peace officer may, without a warrant, take into custody any person whom he finds lying or loitering in any highway or other place at night, whom he has good cause to suspect, and may detain such person until he can be brought before a Justice, and dealt with according to law." {Ih. s. 5.) * Persons who steal from gardens may and should be arrested under the first section, without warrant. A constable who makes an arrest under this section before he has taken the oath of office, as directed by 23 Vic. c. 8, s. 2, is liable to an action. (See article "Constable.") f When a person is brought before a Justice under the authority of this section, he should forthwith receive the statement of the person to whom the property was so offered in an information, and have him make oath to it ; and if the stated value of the article offered be so much greater than the price asked, or any other circumstances raise a presumption of guilt, the prisoner should be remanded, and the constable instruiited to advertise the property, or take other proceedings necessary to learn the name of the owner. % While sections 1 and 8 confine the right to arrest to certain persons, this section enables any person to arrest a person found committing any indictable offence. By authority of this section, not only the police, but all others have the power to arrest persona conmiitting in the night assaults, or carrying unlawful weapons (such as iron knuckles, scull-crackers, or pikes), or found uulawfully drilling. ^ ., THE MAGISTRATE 8 MANUAL. 141 Detention of Persons arrested. — " No person, having been apprehended as last aforesaid, shall he detained after noon of the following day, without being brought before a Justice of the Peace." {Ih. s, 6.) Arrests for alleged Breaches of the Peace. — " In case any person complains to a cliief of police, or to a constable or bailiff, in a town or city, of a breach of the peace having been committed, and in case such officer has reason to be- lieve that a breach of the peace has been committed, though not in his presence, and that there is good reason to appre- hend that the arrest of the person charged with committing the same is necessary to prevent his escape, or to prevent a renewal of the breach of the peace, or to prevent immediate violence to person or property, then if the person complaining gives satisfactory security to the officer that he will without delay appear and prosecute the charge before the Police Magis- trate, or before the Mayor or sitting Justice, such officer may, witliout warrant, arrest the person charged, in order to his being conveyed as soon as conveniently may be before the Magistrate, Mayor or Jastice, to be dealt with according to law." (Con. Stat. C. c. 54, s. 393.) i . 'i''- ^^ I ARSON.* Of Houses containing Persons. — " If any person un- lawfully and maliciously sets fire to any dwelling-house, any person being therein, such offender shall be guilty of felony, and shall suffer death." (Con. Stat. C. c. 93, s. 1.) * The evidence in behalf of the Crown, in cases of arson, is invariably circum- stantial ; and when such a case comes before n Justice, he should, if necessary, adjourn the case from time to time, and allow the detective or constable time to bring out all possible evidence. To prove arson there must be an actual burning, though it is not necessary that the flame should be visible. The burning must be malicious and wilful ; therefore no burning from accident or carelessness can be indicted as arson. The result need not exactly correspond with the intent ; for if a man sets fire to a haystack, and the fire communicates with the barn, he may be indicted for burning the bam. Setting fire to one's own house is a felony, if a neighbouring house catches fire from it, and one punishable with death, if there be any person in either house. It is a miadenwamior only when houses the property of, or It 142 THE magistrate's MANUAL. Op Churches, &c. — " If any person unlawfully and mali- ciously sets fire to any church, chapel or meeting-house for the exercise of any mode or form of religious worship what- ever; or unlawfully and maliciously sets fire to any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malthouse, hop-oast, barn, or granaiy, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them, respectively, be then in the possession of the offender, or in the possession of any other person, such offender shall be guilty of felony, and shall be imprisoned in the Penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 4.) Op School Houses, &c. — "If any person unlawfully and maliciously sets fire to any school-house, lecture-room, seminary of learning, college or building used for the purpose of education, or to any village, town or city hall, or to any steam or fire engine-house or toll-booth, or to any building used or employed as a mechanics' institute, or as a public library, or to any hall or building used by any body or society of persons, by whatever name or designation they may be known, and whether they are associated together for educa- tional, philanthropic, or benevolent purposes, or for any other lawful purpose, or to any museum or repository of curiosities, such offender shall be guilty of felony, and shall be imprisoned in the Penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other inhabited by, any other person, are endangered thereby, though there be no actual burning ; out it is not punishable as arson to burn one's own house if it be entirely isolated and no person be within, even though the intent be thereby to detraud an insurance company. A tenant in possession is, in this oflFence, con- sidered to be the owner of the house he occupies, and therefore cannot be indicted for arson ; except only in such cases where a man may be indicted for burning his own house. But a mere residence without any interest in a house will not prevent iU being considered the house of another: as, where a man sets fire to a house in which he resides without paying rent, he may be properly convicted of arson. In the term house is included not only the dwelling-house, but all outhouses, which are parcel thereof, though not adjoining to or under the same roof, such as barns, stables, nHpiracy, but not in an indictment of this nature." And on an incii.utrnen*. for burglary and stealing certain goods, which were shown not t« havo been in the house at the time of the entry, Chief Justice Cockburn held that the prisoners could not be convicted of attempting to steal those goods: "I think," said he, " aWcwipft'n^r to commit a felony is clearly dis- tinguishable from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged." f If this section were explained to the jury upon the trial of prisoners charged with abusing female children, or other offences, where it is difficult to satisfy the jury that the offence was complete, many criminals who are very improperly acquitted would be convicted. I' 154 THE magistrate's MANUAL. do not anywhere give the accused the same privilege ; and it is questionable whether he can claim the assistance of counsel or attorney as a right, although this is usually allowed by the magistrate. Neither, in indictable offences, is the place where the examination is taken to be deemed an open court. (Con. Stat. 0. c. 102, s. 36. See ante p. 39.) It is entirely in the discre- tion 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. BAIL. Bail (from the Yreiy^j^aiUer, to deliver) signifies the deliv- ery of a man out of cinBdy, upon the undertaking of one or more persons for him thw he shall appear at a day limited, to answer and be justified by the law. It is a delivery or bailment of a person to his sureties, upon their giving, together with himself, suflicient security for his appearance, he being sup- posed to continue in their friendly custody instead of going to prison. - = The fullest instructions with regard to bail are given in Con. Stat. C. c. 102, ss. 48, 52, 56, 63, 44. (See ante, pp. 43, 45, 47,63.) j, ,:• I ,, s BIGAMY. " Any person who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in this province or elsewhere ; and every person who counsels, aids, or abets such offender, shall respectively be guilty of felony ; and shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Consol. Stat. C. c. 91, s. 29.) " Nothing in the last section contained shall extend, — " Firstly. — To any second marriage contracted out of this province by any other than a subject of Iler Majesty resident in this province, and leaving the same with intent to commit the ofi'cnce ; or THE magistrate's MANUAL. 155 " Secondly. — To any person marrying a second time, whose husband or wife had been continually absent from such person for the space of seven years then last past, and was not known by such person to be living within that time ; or " Thirdly. — To any person who, at the time of such second marriage, had been divorced from the bond of the first mar- riage; or • " Fourthly. — To any person whose former marriage had been declared void by the sentence of any court of competent juris- diction." {Ih. 8. 30.) It should be remembered that neither the first and lawful wife, nor the first and lawful husbandgjpd'e competent witnesses in proof of the marriage. , If any person marry a woman within the prohibited degrees of consanguinity or aflinity, his first wife being alive, it is nevertheless bigamy. The first wife is not a competent witness for or against the prisoner, but the second wife is. 11 BRIBERY. At Elections, &c. — By Candidates.— T\iq following persons shall be deemed guilty of bribery, and shall be punishable accordingly : 1. " Every person who shall, directly or indirectly, by him- self or by any other person on his behalf, give, lend, or agree to give or lend, or shall oft'er, promise, or promise to procure, or endeavour to procure, any money or valuable consideration to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce any voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid, on account of such voter having voted or refrained from voting at any election ; 2. " Every person who shall, directly or indirectly, by him- self or by any other person on his behalf, give or procure, or agree to give or procure, or offer, promise, or promise to pro- cure, or to endeavour to procure any office, place or employ- ment to or for any voter, or to or for any person on behalf of 156 THE magistrate's MANUAL. any voter, or to or for any oth6r person, in order to induce such voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid, on account of any voter having voted or refrained from voting at any election ; 3. " Every person who shall, directly or indirectly, by him- self, or by any other person on his behalf, make any gift, loan, offA*, promise, procurement, or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in Parliament, or the vote of any voter at any election ; 4. " Every person who shall, upon or in consequence of any such gift, loan, offer, pll^aise, procurement or agreement, pro- cure or engage, promise or endeavour to procure the return of any person to serve in Parliament, or the vote of any voter at any election ; 5. " Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person, with the intent that such money, or any part thereof, shall be expended in bribery at any election, or who shall knowingly pay or cause to be paid any money to any person in discharge or re-payment of any money wholly or in part expended in bribery at any election ; " And any person so offending shall be guilty of a misde- meanor, and shall also be liable to forfeit the sum of two hundred dollars to any person who shall sue for the same, with full costs of suit : Provided always, that the actual personal expenses of any candidate, his expenses for actual professional services performed, and bona fide payment for the fair cost of printing and advertising, shall be held to be expenses lawfully incurred, and the payment thereof shall not be a contravention of this act." (23 Vic. c. ir, s. 1.) By Voter. — " The following persons shall also be deemed guilty of bribery, and shall be punishable accordingly : '^ 1. " Every voter who shall, before or during any election, directly or indirectly, by himself or -by any other person on his behalf, receive, agree, or contract for any money, gift, loan THE magistrate's MANUAL. 157 i>n In or valuable consideration, oflfice, place or employment, for him- self or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election ; 2. " Every person who shall after ar.j' election, directly or indirectly, by himself or by any other person on his behalf, receive any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or to refrain from voting at any election; " And any person so offending shall be guilty of a misde- meanor, and shall also be liable to forfeit the sum of two hundred dollars to any person who shall sue for the same, with full costs of suit." {I hid. s. 2.) Hiring Vehicles. — Hiring or promising to pay, or paying for any horse, team, carriage or other vehicle by any candidate, or by any person on his behalf, to convey voters to the poll, is illegal ; and the person so ordering shall forfeit the sum of thirty dollars for each offence, and full costs of suit. Any elector hiring horses or vehicles to any candidate or his agent for such purpose, shall be ipso facto disqualified from voting at such election, and shall forfeit the sum of thirty dollars for eacli offence to any person who shall sue for the same. (See ihid. s. 3.) Violence, (&c. — " Every person who shall, directly or indirect- ly, by himself or by any other person on his behalf, make use of any force, violence or restraint, or inflict or threaten the infliction, by himself or by or through any other person, of any injury, damage, harm or loss, or in any manner practise any intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall by abduction, duress, or any fraudulent devise or contrivance, impel, prevent or otherwise interfere with the free exercise of the franchise of any voter, or shall thereby compel, induce or prevail upon any voter either to give or refrain from giving his vote at any election, shall be deemed to have committed the oftence of undue injluence, and shall be ^'i« 158 THE magistrate's MANUAL. guilty of a misdemeanor, and be liable to forfeit the sum of two hundred dollars, to any person suing, with full costs of suit." (lb. 8, 4.) BUGGERY.* " Every person guilty of the abominable crime of buggery, committed either with mankind or with any animal, shall suffer death as a felon." (Con. Stat. C. c. 91, s. 22.) BURGLARY. Burglary is a felony at common law, and a burglar is defined by Lord Coke as "he that in the night time breaketh and entereth into the mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not." "Any person who burglariously breaks and enters any dwelling-house, and assaults with intent to murder any person being therein, or stabs, cuts, wounds, beats or strikes any such person, shall be guilty of felony, and shall suffer death."f (Con. Stat. C. c. 92, s. 8.) " Any person who commits the crime of burglary shall be imprisoned in the Penitentiary for the term of his natural life, * Penetration, however slight, is sufficient to constitute the crinae (Con. Stat. C. c. 99, s. '70). It is not necessary to prove that the offence was committed against the will of the party assaulted ; and if that party be consenting, both are guilty of the offence. If committed on a boy under fourteen, it is felony in the agent only ; and so if a man induced a boy under fourteen to have carnal know- ledge of his person, the man was convicted, as alone guilty of the offence. Tht offence committed on a woman is indictable. A married woman who consented to her husband's committing the offence on her, was held guilty of the offence. Proof that the prisoner is addicted to such practices, is not admissible. If the evidence be insufficient to prove sodomy, the prisoner may yet be convicted of the attempt. f The evidence on a charge under this section of the statute will be the same as that required for simple burglary, for which see following notes ; and in addi- tion the prosecutor must prove either that the prisoner assaulted some person, then being in Uie house, with intent to murder, which intent may be inferred from the circumstances, or that the prisoner stabbed, cut, wounded or beat or struck some person. or fo any two *0i| The e breaki with tl 1. A entry ( oualif a which door or door b( a pane the locli where the own having goods was con parts of and a sei convicte ciently c the hant entry thi so, howe' fixtures, ing a gat Coiistn himself a breaking then fell < where A., be burgij entrance owner thi their threi burglary, bery was ( 2. Prooj duces an j depends oi felony, it v ment to aU But where it was held forced opei the prisone the content be introduc necessary t( For insta guilty of bi THE magistrate's MANUAL. 159 be or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years.""*^ (Ih. s. 9.) * On a trial for burglary, the prosecutor must prove — 1. The breaking; 2. The entering; 8. That the house entered was a dwelling-house; 4. That the breaking and entry were in the night time ; 5. That the breaking and entry were with the intent to conimit a felony. 1. Actual breaking. — Such a breaking as is implied by law in every unlawful entry on another's possession, open or closed, will not satisfy the words feloni- ously and burglariously, except in cases where it is accompanied by circumstances which make it as heinous as an actual breaking. Entering through an open door or window is not burglary ; but if, after such entry, an inside or chamber door be unlocked or unlatched, it is burglary. Breaking a window, unfastening a pane of glass, drawing a latch, when there is no other fastening, putting back the lock a door or fastening of a window with an instrument, turning the key where the door is locked inside, or picking a lock, or unloosing any fastening the owner has provided : these are all proofs of a burglary. Where the prisoner, having entered by an open back-door, broke open a cliamber-door, and stole goods out of the chamber, and then unbolted the street-door and went out, he was convicted of burglary. So where the servants and master slept in different parts of the house, the stair-foot door of the master's chamber being latched, and a servant unlatched it, and entered the master's room to murder him, he was convicted of burglary with intent to murder. Raising a window which is suffi- ciently open to allow of its being raised further, is no breaking ; but inserting the hand through a broken pane to unfasten a hasp or lock is a breaking. An entry through a chimney is burglary, for it is as much enclosed as possible: not so, however, an entry through a hole in the roof for letting in air. Breaking fixtures, cupboards, chests, Ac, is not burglary. Breaking through or overleap- ing a gate or fence is not burglariously breaking or entry. Constructive breaking may be by fraud, conspiracy or threats, though the owner himself admit the offender, and renders the offender equally guilty as if the breaking had been by force. So, where persons took lodgings in a house, and then fell on the landlord and robbed him, they were convicted of burglary. And where A., servant of B., conspired with C. to admit him to rob B., it was held to be burglary in both. And again, where the offenders actually obtained an entrance by threats, it was held to be burglary ; but only robbery where the owner threw his purse out of the window to the prisoners, in consequence of their threats. So parties who assisted in the breaking were held guilty of the burglary, though not anywhere in the neighbourhood at the time that the rob- bery was committed. The breaking may be either in the entry or exit. 2. Proof of entry. — Where no part of the offender's body enters, but he intro- duces an instrument, whether that introduction constitutes burglarious entry, depends on the object for which it was effected. If with intent to commit a felony, it will amount to an entry ; as where a person uses a hook or other instru- ment to steal, or a pistol to kill, through a window, though his hand be not in. But where the instrument was introduced only to effect an entry, as a centre-bit, it was held to be no entry ; and the same where the inside sliutter had been forced open with a crowbar introduced through the window, the sash of which the prisoners threw open, but without the hand being introduced. Discharging the contents of a loaded gun or pistol into a house, though no part of the weapon be introduced, is a burglarious entry with intent to murder. It is not always necessary to prove entry by all the prisoners. For instance, if A. and B. keep watch, while C. breaks into the house, all are guilty of burglary, and all are principals. Again, where a man puts a child of 160 THE MAGISTRATE 8 MANUAL. " The niglit, so far as the same is essential to the offence of burglary, shall commence at nine of the clock in the evening of each day, and conclude at six of the clock in the morning of the next succeeding day ; and if any person enters the dwelling of another with intent to commit felony, or being in tender years in at a window, and the child takes and delivers goods to him, the man alone is guilty of burglary. 8. IVhat constitutes a dwelling-house. — Every house for the dwelling and habi- tation of man is taken to be a dwelling-house wherein burglary may be committed. A mere tent or booth in a market or fair is not a dwelling-house. But where such booth was a permanent one of mud and brick, having doors and windows bolted inside, and occupied by the owner and his wife every night during the fair (during one of which it was broken int'^), this was held to be a dwelling- house. The mere fact of a building in the neighbourhood of a dwelling-house being occupied with the dwelling-house by the same tenant (not taking into con- sideration whether it is in the curtilage), will not render the former building a dwdUng-hovse. The prisoner broke into and entered an nuthouse occupied by a person along with a dwelling-house, but not enclosed within the same fence, he was not held guilty of burglary. Where a man puts his servants into an out- house, not connected with the house by any internal communication, nor enclosed within the same enclosure, nor under the same roof, it was held not to be a dwelling-house. It must appear also that the premises were occupied, at the time of the offence, as a dwtVing-house, Therefore, an unfinished house, which has never been occupied, though intended for a dwelling-house, is not considered to be one within the statute ; and in one case, though such house was occupied by a carpenter for its protection, but the owner had not yet entered it, it was not held to be a dwelling-house. So a detached workshop or place of business is not considered as a dwelling-house, though occupied by a servant for the protection of goods therein contained. So, though the owner occupy a room adjoining the shop during the day time, but do not sleep therein, it is not a dwelling-house. But a house is no less a dwelling-house, because at certain periods the occupier quits it, or quits it for a temporary purpose. In the case of a house divided without internal communication, and occupied by several, unless both parts of such house be occupied as a dwelling-house (as above defined), it is not burglary to break into the unoccupied part ; but if the whole be occupied by the same person, though part of it be occupied only in the day-time, it is burglary to break into either part. Although in the case of lodgers, who hold under one general occupier, the whole of the house continues to be. the dwelling-house of such general occupier, the parties having only a single entrance, it is otherwise where several parts of the building are let under different leases. Where a man occupies the same house with his lodgers, and has but one entrance with them, the house is considered as his. But where he and his lodgers enter by different entrances, the lodgers are considered as the owners of the part they inhabit. It is sufficient to prove that the house was occupied by any part of the prosecutor's family. An agent or clerk employed in a public office, or by persons in trade, is in law the servant of those parties, and if he be suffered to reside on the premises which belong to the government or to the individuals employing him, the pre- mises cannot be described as his dwelling-house. If a person let oflF part of his house, but do not dwell in the part reserved, the part let is the dwelling-house of the tenant, but the part reserved is not the dwelling-house of the tenant, A man cannot be indicted for burglary in his own dwelling. Therefore if the owner of a house break and enter the room of a lodger, and steal his goods, he can only be convicted of the larceny. 4. With regard to proof of the offence having been committed in the night time, it is necessary to prove that both breaking and entry were effected within the THE magistrate's MANUAL. 161 Bucli dwelling house, commits any felony, and in either case breaks out of the said dwelling house in the night time, such person shall be guilty of burglary."* {Ih. s. 10.) "Any person who steals any chattel, money or valuable security in any dwelling house, and by any menace or threat puts any one, being therein, in bodily fear, shall be guilty of felony, and shall be imprisoned in the Penitentiary for any term not exceeding fourteen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 11.) " No building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed a part of such dwelling-house for the purpose of burglary, or for any of the purposes aforesaid, unless there be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other." {Ih. s. 12.) " In case any person breaks and enters any building, and steals therein any chattel, money or valuable security, such building being within the curtilage of a dwelling-house and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned, and be convicted thereof (either upon an indictment for the same offence, or upon an indictment for burglary, house breaking or stealing to the value of five pounds sterling, or $24 33^ cents, in a dwelling- house, containing a separate count for each such offence), he hours specified. Therefore, if the prisoner had provided the meaas for his entry before the hour of nine (as, for example, by leaving a window open, &c.), the entry alone after that hour would not constitute burglary. 6. With regard to proof of the intent, it would be fatal to specify a felony of one kind (as murder, for instance), and only be able to prove one of another (as larceny). Lastly, if the prosecutor iail to prove burglary, the prisoner may be convicted of the minor offence, as of larceny. * With regard to proof of the breaking out, the following oases have been decided : It is not sufficient to prove that the prisoner broke to get out, but it must appear that he actually broke out. And where a lodger in the prosecutor's house got up in the night and unbolted the ba(^ ^ or and went off with goods belonging to the prosecutor, he was convicted of ry ; and none the less so, though he was lavsfuUy in the house as a lodger. u 162 THE magistrate's MANUAL. shall be imprisoned in the Penitentiary for any term not exceeding fourteen years, nor less than two years, or be impri- soned in any other prison or place of confinement for any term less than two years." {Ih. s. 13.) "Any person who breaks and enters any shop, warehouse or counting-house, and steals therein any chattel, money or valuable security, shall be liable to any of the punishments which the court mav award, as hereinbefore last mentioned.'^ {Ih. s. 14.) " Any person — 1. Who is found by night armed with any dangerous or offensive weapon or instrument, with intent to break or enter into any dwelling-house or other building what- soever, and to commit any felony therein ; and 2. Any person who is found by night, having in his possession, without lawful excuse, any picklock, key, crow, jack, bit, or other implement of house-breaking, or any match or other combustible or explo- sive substance ; and 3. Any person who is found by night, having his face blackened or otherwise disguised with intent to commit felony ; and 4. Any person who is found by night in any dwelling-house or other building whatsoever, with intent to commit any felony therein, shall respectively be guilty of misdemeanor, and shall be imprisoned in the Penitentiary for two years, or in any other prison or place of confinement, with or without hard labor, for any time less than two years." {Ih. s. 15.) "The time at which the night commences and concludes in any offence against the provisions in the last section men- ,tioned, shall be the same as in cases of burglary." {Ih. s. 16.) " Any person who breaks and enters any church or chapel, ■and steals therein any chattel, or having stolen any chattel, money, or valuable security in any church or chapel, breaks out of the same, shall be imprisoned in the Penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 17.) Corj payi Jaw or to unde punis the c (Con. Su]! be coi of wh; Peace resideg tice is any pr "Th is had the offe and shg law, wii the han two or J and sea costs, 0] distress {Ih. s. 2 "In c penalty ( the comr for the t€ " Whe thereof s] moiety to the name pecuniary THE magistrate's MANUAL. BY-LAWS — OFFENCES AGAINST. 163 By Municipal Officers. — " In case any officer of a Municipal Corporation neglects or refuses to carry into effe^ t a by-law for paying a lebt, and so neglects or refuses under colour of a by- law illegally attempting to repeal such first-mentioned by-law, or to alter the same so as to diminish the amount to be levied under it, such officer shall be guilty of a misdemeanor, and be punished by fine or imprisonment, or both, at the discretion of the court whose duty it may be to pass sentence upon him." (Con. Stat. C. c. 54, s. 204.) Summary Convictions under By-Laws. — " In case an offence be committed against a by-law of a Council, for the prosecution of which offence no other provision is made, any Justice of the Peace having jurisdiction in the locality where the offender resides, or where the offence was committed, whether the Jus- tice is a member of the Councilor not, may try and determine any prosecution for the offence." (75. s. 205.) " The Justice or other authority before whom a prosecution is had for an offence against a municipal by-law, may convict the offender on the oath or affirmation of any credible witness, and shall award the punishment or penalty imposed by the by- law, with the costs of prosecution ; and may, by warrant under the hand and seal of the Justice or other authority, or in case two or more Justices act together therein, then under the hand and seal of one of them, cause any pecuniary penalty and costs, or costs only, if not forthwith paid, to be levied by distress and sale of the goods and chattels of the offender." (75. s. 206.) " In case there can be no distress found, out of which the penalty can be levied, the Justice may commit the offender to the common gaol, house of correction, or nearest lock-up house, for the term specified in the by-law." {Ih. s. 207.) " When the pecuniary penalty has been levied, one moiety thereof shall go to the informer or prosecutor, and the other moiety to the Corporation, unless the prosecution is brought in the name of the Corporation, and in that case the whole of the pecuniary penalty shall go to the Corporation." {II. s. 208.) i ii! 164 TIIE MAGISTRATE'S MANUAL. " The Police Magistrate, or, when there is no Police Me^^is- trate, the Mayor of a town or city, shall have jurisdiction, in addition to his other powers, to try and determine all prosecu- tions against the by-laws of the town or city, and for penalties for refusing to accept office therein, or to make the necessary declarations of qualification and office." {Ih. s. 209.) " It shall not be necessary, in any conviction made under any by-law of any Municipal Corporation in Upper Canada, to set out the information, appearance or non-appearance of thc» defendant, or the evidence or by-law under which the convic- tion is made, but all such convictions may be in the form given in the schedule of this act." (27 Vic. c. 18, sec. 1.) " In prosecuting under any by-law, or for the breach of any by-law, witnesses may be compelled to attend and give evidence on summary proceedings before Justices of the Peace, in cases tried summarily under the statutes now in force in Upper Canada." {Ih. s. 2.) " Every Justice of the Peace for a county shall have juris- diction in all cases arising under any by-law of any municipality in such county." {Tb. s. 3.) " The word * county,' in this act and in the schedule thereof, shall include * united counties.' " {Ih. s. 4.) Form. Province of Canada, \ Be it remembered, that on the day of County of ^ V A.D. ^ at ^ in the county of , A. B. is To wit ) conyicted before the undersigned, one of Her Majes- ty's Justices of the Peace in and for the said county ; for that the said A.B. {fitating hia offence^ cmd time and place when and where eommitted\ contrary to a certain by-law of the Municipality of the of , in the said county of ^ passed on the day of , A.D. , and inti- tuled {reciting the title of the ly-law) ; and I adjudge the said A.B. for his offence to forfeit and pay the sum of , to be paid and applied according to law ; and also to pay to CD., the complainant, the sum of for his costs in this behalf. And if the said several sums be not paid forthwith {or on or before the day of — — A.D. ^ as the case may J«), I order that the same be levied by distress and sale of the goods and chattels of the said A.B. ; and in default of sufficient distress, I adjudge the said A.B. to be imprisoned in the common gaol of the said county of {or in the public lock-up at \ for the space of days, unless the said several sums and all costs and charges of conveying the said A.B. to such gaol {or lock-up), shall be sooner paid. Given under my hand and seal, the day and year first above written, at , in the said county. J. S., t/i X. [l. 8.J c dep< justi hear charj todc and : It mt stand favor, been ] confes may t promij And be tak( signed tions o] mentio] As t( OfFende It is I letter, to or oven %ht, as tions anc following me like a subject, proper to defendant 1st. The Where it ie must p THE magistrate's MANUAL. 165 CAUTIONS. Caution to Prisoner in Indictable Offences. — After the depositions against the prisoner have been read over to him, the justice shall caution him in tliese or similar words : — " Having heard the evidence, do you wish to say anything in answer to the charge ? You are not obliged to say anything, unless you desire to do so ; but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." It may be as well to add, " And I give you clearly to under- stand, that you have nothing to hope from any promise of favor, and nothing to fear from any threat which may have been held out to you, to induce you to make any admission or confession of your guilt ; but that whatever you shall now say, may be given in evidence against you, notwithstanding such promise or threat." And whatever the prisoner then says in answer thereto shall be taken down in writing, and read over to him, and shall be signed by the said justice or justices, and kept with the deposi- tions of witnesses, and be transmitted with them as hereinafter mentioned. As to the caution to juvenile oflfenders, see article " Juvenile Offenders," ^s^. I CHALLENGE TO FIGHT. It is a very high offence to challenge another, by word or letter, to fight a duel, or to be the messenger of such challenge, or fcven barely to provoke another to send such challenge to fight, as by dispersing letters to that purpose containing reflec- tions and insinuating a desire to fight. Thus, a letter to the following effect was held indictable : — " You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will attend to any appointment you may think proper to make." No provocation^ however great, justifies the defendant. In a case of this kind the prosecutor must prove — Ist. The letter or words conveying the challenge; and 2nd. Where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to pro " 4 m ICG THE magistrate's MANUAL. vokc a cliallcngo. In tlio latter case, iho prosecutor must shew the circumstances under which the words were uttered, tor the purpose of proving the unlawful intent of the defendant. Thus, words of provocation, as " liar," or " knave," though a mediate provocation to a breach of the peace, do not tend to it immediately y like a challenge to fight, or threat to beat another. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge. (Roscoe's Crim. Evid. p. 352). SIX CHEATING. ■ False Pretences. — " If any person, by any false pretence, obtains from any other person any chattel, money, or valuable security, with intent to cheat ^ or defraud any person of the same, such offender shall be guilty of a misdemeanor, and shall be imprisoned in the Penitentiary for any term not exceeding fourteen years, nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years, or shall suffer such other punislmaent, by fine or impri- sonment, or by both, as the court may award." (Con. Stat. 0., 0.92, s. 71). • " If any person, by any false pretence, obtains the signature of any other person to any bill of exchange, promissory note or any valuable security, with intent to cheat or defraud, every such offender shall be guilty of a misdemeanor, and shall be liable to fine or imprisonment, or both, at the discretion of the court; such imprisonment to be for a period less than two years." {Ih. s. 72.) " If any person obtains any property whatever, with intent to defraud, such offender shall be guilty of a misdemeanor, and shall be imprisoned for any period not exceeding two years, with or without hard labor." {Ih. s. 73.) " If any person, by means of any false ticket or order, or of any other ticket or order, fraudulently and wilfully obtains, or attempts to obtain, any passage on any railway, or in any steam or other vessel, such offender shall be guilty of a mi&Jemeanor, n THE magistrate's manual. 1(')7 and slmll bo liable to imprisonmont in any common ^acil or prison, with or without hard labor, for an . j>eriod not extiuedin*^ six months." {lb. s. 74.) " In any indictment for obtaining or attempting to obtain any property by false pretences, with intent to defraud, it shall be surticient to state that the property was obtained, or at- tempted to be obtained, by the defendant by fake ]>rctence8, with intent to defraud, with' 'it any further or more ]>articular statement of such false pretences." {Ih. c. 99, s. 35.) Persons Indicted for Larceny may be found Guilty of OBTAINING under False Pretences. — " If upon the trial of any person for larceny it appears that the property taken was obtained by such person by fraud, under circumstances which do not amount to such taking as constitutes larceny, such per- son shall not by reason thereof be entitled to be acquitted, but the jury may return as their verdict that such person is not guilty of larceny, but is guilty of obtaining such property under false pretences, with the intent to defraud, if the evidence prove such to have been the case, and thereupon such person shall be punished in the same manner as if he had been convicted upon an indictment for obtaining property under false pretences; and no person so tried for larceny as aforesaid shall be after- wards prosecuted for obtaining property by false pretences upon the same facts." (/J. s. 61.) ■■*i *t^,-* On an Indictment for obtaining Monet, &c., by False Pretences, if a Larceny be proved, the Party may be con- victed OP Larceny. — " If upon the trial of any person indicted for obtaining any chattel, money, or valuable security by any false pretence, with intent to cheat or defraud any person of the same, it be proved that he obtained the property in ques- tii^n in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor ; and no such indictment shall be removeable by certiorari,* and no person tried for such misdemeanor shall be afterwards prosecuted for larceny upon the same facts." (Ik 8. 62.) ! 168 TIIE MAGISTEATe's MANUAL. " In case of the conviction of any person for cheating or fraud, the pereon convicted of any such offence may be sen- tenced to be imprisoned only, or imprisoned and kept at hard labor, or in solitary confinement, in the common gaol or house of correction, for any period less than two years, or may be imprisoned at hard labor in the Penitentiary for any term not less tl'an two and not exceeding seven years." (Con. Stat. IT. C. c. 115, s. 1.) This brancli of the law is involved in some obscurity. The decisions of the superior courts as to the extent of its applica- tion, and the offences which come within the reach of the criminal law, or are merely the subject of civil redress, are per- plexing, if not contradictory, and are, as observed by Creswell, J., well calculated to embarrass those who are called upon to administer the law. The difiiculty arises from the nice distinc- tion wliich has been drawn between a false pretence and a naked lie, not cognizable in a criminal court, and from the latitude allowed to traders, by the almost universal practice of every country, in stating or overstating the merits, or under- stating or concealing the faults of the commodities which are the subject matter Of their dealings. The false pretence must (as defined by Archbold) be a state- ment " of some pretended existing fact, and be made for the pui*posc of inducing the prosecutor to part with his property ;" for instance, a promise to pay for goods on delivery is not a false pretence, but representing that another person had sent for them is. In prosecutions for obtaining money or gocds by false pretences, it must be shewn that the prosecutor parted with his property hy reason of the false pretences. Thus it was held, also, that where the prisoner represented to his mas- ter that he had done more work for him than was the fact, and was paid for the work he professed to have done, the master knowing at the time the amount of work done, an indictment under the statute could not be maintained, and* the conviction was quashed. The attempt to obtain money by g. false pretence is also a misdemeanor. And in another case a conviction was afiirnied for attempting to obtain money from a pawnbroker, by asking him to advance money on a chain which he repre- THE magistrate's MANUAL. 169 sented to be of silver, but which the prisoner knew to be of other metal of inferior value. It is not necessary that the false pretence should be in words ; and, therefore, it has been held, that where a party gave a cheque on a banker with whom he had no account, or obtained goods and money for a forged note of hand, or assumed the gown and cap* of a commoner of the University of Oxford,*and obtained money ©r goods by means of the fraud, the offence was within the statute. The offence may also be committed by melbs of an innocent agent. The law of false pretences underwent an elaborate discus- sion in the case of It. v. Bryan, (26 L. J. 84) ; and the court attempted to define where the line of commercial license and of simply lax mercantile morality ends, and that of fraudulent misrepresentation and of criminal responsibility begins. The result would appear to be that the statute must not be con- sidered as applying to mere exaggeration or depreciation as to the quality of an article in the ordinary course of dealing dur- ing the progress of a bargain, but that it extends to cases where the substance of the contract is falsely represented ; as, for instance, that a ring is of silver, cheese of a particular quality, or blacking of a particular person's manufacture, and the money is obtained by reason of such false pretence. The tost appears to be whether the person charged falsely represented a positive fact, or said what merely amounted to an opinion. It will be impossible to refer to all the decisions which have taken place ; but we have thought it would be useful to give a brief summary of some of the principal cases, distinguishing those which have been held to be within the statute of 7 & 8 Geo. ly., c. 29, or otherwise, as the principle of these will be applicable to questions arising under the Consolidated Statutes. Offences within the Statute. — Wliere a carrier falsely pretended that he had carried certain goods, and obtained money for their carriage ; or a foreman pretended to his master to have paid money to the workmen which he had not paid ; or a servant who hnd authority from his emplo}'ers to pay money on their behalf fsilsely pretended to have paid a certain m m^, 170 THE magistrate's MANUAL. sum, and obtained it from the clerk ; or a secretary of a friendly society who obtained money from one of the members, falsely pretending that it was owing ; or obtaining from the master a cheque for £14 2s. 6d., the amount appearing to be due from the master to his workmen, according to an account rendered to him by the prisoner, and all of which was due except seven shillings, which l^e prisoner kept ; or the member of an enrolled benefit society obtaining the property of E. and others, by falsely pretending tq E., the steward, who kept the money, that his wife was dead ; or offering a flash note in pay- ment under the pretence that it was a bank note ; or falsely representing that the prisoner kept a shop, and that the prose- cutrix might go and live with her there until she got a situa- tion, and thereby obtaining from the prosecutrix ten shillings, advanced on the faith of such representation ; or a person obtaining a charitable gift by means of a begging letter, con- taining a tale of fictitious distress ; or obtaining money by way of a loan by means of a false pretence ; or falsely pretending that the blacking sold by the prisoner was that of a particular maker, Everett's blacking; or that the horses sold by the prisoner had been the property of a deceased lady, and were then the property of her sister, and had never belonged to a horse dealer ; or that the party is connected in business with a person of wealth ; or fraudulently misrepresenting the weight of a load of coals delivered under a contract as 18 cwt., know- ing the weight to be 14 cwt. oi^ly; or that the^ loaves delivered to the poor under a contract with- the guardians of the parish were of full weight ; or that an Irish one pound note was « five pound note; or that the prisoner had built a house on certain land, and thereby inducing die prosecutor to advance money on a deposit of the leRce ; or falsely pretending that the prisoner liad purchased cer^^ain skins of A. B. and would sell them to tlie prosecutrix if she would let him have a certain sum, thereby inducing the prosecutrix to lend money to the prisoner ; or passing a note of a country bank as a current note, knowing that the bank is insolvent and has stopped payment; were all held to be indictable offences under the statute. . . be id THE MAGISTRATE 8 MANUAL. 171 Offences not within the Statute. — Falsely pretending that a party will pay for goods on delivery ; or obtaining half a guinea's worth of silvei^ and stating that the half guinea would be sent presently ; or falsely warranting a horse ; or that the prisoner was a naval officer, and thereby inducing the prosecu- tor to enter into a contract to lodge and board him at a guinea per week (the supply of the articles of food being considered as too remotely the result of the false pretence) ; or that certain silver-plated spoons had as much silver in them as " Elkington's A.," and that the foundation was of the best mr terial ; or making a false representation as to the natm*e and profits of a business to induce a party to enter into partnership, the whole scheme not being a mere sham ; or a servant by a false pretence inducing his master to give him a cheque as agent of a creditor of the master, with a view to its being handed over to that creditor, and the servant appropriating the cheque to his own use; were held not to be false pretences witliin the meaning of the statute. ■ ^^ CLAIM OF RIGHT. A lona fide claim of right rebuts the presumption of felo- nious intention, though it may turn out to be groundless. But the claim must have a colour of right and not be set up against a known law, as a claim to grazepn the lands of another against his will, or to plunder a wreck ; for these will not be excused merely because custom has appeared to sanction such usages. , . In general, however, a wrongful taking of property against the will of the owner must be considered felonious, unless shewn by circumstances to be otherwise. But the question of intent is to be gathered from circumstances, on which .0 jury are to decide, of which the most important is the pressure oi" al)sence of concealment at the time 01 and subsequent to the taking. COCK FIGHTING. This offence may be punished as cruelty to animals, under Con, Stat. C. c. 96 (see article " Cruelty to Animals," jpo*'^) ; and :l i » 1 i mI i 1 ft m gBB t y|f ^^^y jWrj \ %> fl 1 ' » rli ^j\ 'i ' ;»L ! } .^^^Rfh \ W t Sl^ ' "^'-'i'VraK 'ir ■ K^^ili^ a Wmm H mpffi 11 4P 172 THE MAGir bate's MANUAL. where it frequently takes place the parties may be punished for keeping a disorderly house, or a disorderly place of resort, which is an indictable nuisance. (See article^" Nuisance," ^<>«^.) COIN — OFFENCES RELATING TO. The CouNTERFErrmG of Current Coin. — " If any person falsely makes or counterfeits, or causes to be made or counter- feited, any coin resembling, or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, or any of the gold or silver coin made or declared to be lawfully current in this Province, such person shall be guilty of a mis- demeanor, and shall l.e imprisoned in the Provincial Peniten- tiary for not more than four years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years."* (Con. Stat. C. c. 90, s. 3). " If such person afterwards offends in like manner, he shall, for such second or for any subsequent offer ce, be deemed guilty of felony, and shall be liable to the punishment by law provided for felony."f (/J. s. 4.) " Upon the trial of any person accused of any offence alleged to have been committed against the form of the Con- solidated Statute of Canada respecting the currency, or against the provisions of this Act, no difference in the date or year marked upon the lawfully current coin described in the indict- ment, and the date or year marked upon the false coin coun- terfeited to resemble or pass for such lawfully current coin, or upon any die, plate, press, tool or instrument used, constructed, • In cases of counterfeiting, the evidence is generally circumstantial, such as finding coining tools in the defendant's house, together with some pieces of the counterfeit money in a finished, some in an unfinished state. It \s not necessary to prove that the counterfeit coin was uttered, or attempted to be nttered. If it be doubted whether the coin which the counterfeit coin was intended to imitate be the Queen's coin, it is a mere question of fact to be left to the jury on evide^ice of usage, reputation, «fec. The words of the statute, " apparently intended to resemble," &c., make it unnecessary to prove that the counterfeit coin would be likely to pass for current coin, or that the coining was perfect and complete. Nor is it necessary that the spurious coin should be of the same metal it is intended to imitate. • f Two or more years' imprisonment in the Penitentiary, or less than two years' in gaol. THE MAGISTRATE 8 MANUAL. 173 devised, adapted or designed, for the purpose of counterfeiting or imitating any such lawfully current coin, shall be considered a just or lawful cause or reason for acquitting any such person of such offence or accusation." {Ih. s. 5.) " If any person colours or gilds, or cases over with gold or silver, or with any wash or materials producing the colour of gold or silver, any coin of coarse gold or of coarse silver, or of base metal, resembling any coin made or declared to be cur- rent in this Province, or makes or causes to be made, or buys, sells or procures for himself or for another, or knowingly brings and imports, or causes to be brought and imported into this Province, any forged, false or counterfeit gold, silver or copper coin, like to any of the gold, silver or copper coin made or declared lawfully current in Canada, or any coin of coarse gold or of coarse silver, or of base metal coloured, gilded or cased over with gold or silver, or with any wash or materials pro- duciig the colour of gold or silver, and resembling any such coin, or any piece of gilded silver resembling any such coin, or utters or attempts to utter, or tender in payment to any person or persons, as being any of the gold, silver or copper coins made or declared to be current money as aforesaid, any false or counterfeit piece counterfeited to any of the gold, silver or copper coins, so made or declared to be current, or to any of the higher or lower denominations thereof, knowing the same to be false or counterfeit, such person shall be guilty of a mis- demeanor, and shall be imprisoned in the Penitentiary for not less than three nor more than fourteen years."* {Ih. s. 6.) * As regards proof of the gilding, Ac, or colouring, it is sufficient to prove that the counterfeit coin bad partially undergone the treatment necessary to give it the appearance of cr * ent coin. It is necessary, undor the latter part of this section, to prove — 1. The tender- ing or uttering of the coin in question, and that it is a ba-^je and counterfeit coin. "Wnere a good shilling was given to a Jew boy for fruit, and he put it into his mouth, under pretence of trying whether it was good, and then taking a bad shilling out of his mouth instead of it, returned it to the prosecutor, saying that it was uot good ; this (which is called ringing the changes) was holden to be an uttering within the statnte. The givinie: of a piece of coimterfeit coin in charity is no offence, though the party knew ic to be a counterfeit, for there must be some intention to defraud. The giving of counterfeit coin to a woman, as the pric^ of connertion with her, is within tiie statute. It is an " uttering and put- ting off," as w ill as a " tendering," if the counterfeit coin be offer'jd in payment, though refused by the person to whom it is offered. 2. It must be proved that the defendant k lew it to be a counterfeit cola at the time he uttered it. This of ifl t| 174 THE magistrate's MANUAL. " If such person afterwards offends in like manner, he shall for such second and for any subsequent offence be deemed guilty of felony, and shall be imprisoned in the Peni- tentiary for life, or for any term not less than fourteen years."* {II. 8. 7.) " If any person forms, makes, cuts, sinks, stamps, engraves, repairs or mends, or assists in forming, making, cutting, sinking, stamping, engraving, repairing or mending, or has in his possession, except for some known and lawful purpose, any false or counterfeit coin, counterfeit to any coin lawfully current as aforesaid, or any die, press, tool or instrument, or metal or material of any kind, used, constructed, devised, adapted or designed for the purpose of counterfeiting or imita- ting any coin lawfully current as aforesaid, such person shall be guilty of a misdemeanor, and shall be punished accord- ingly."! {Ih. 8. 8.) " The proof that such false or countefeit coin, or such die, press, tool or instrument, metal or material was formed, made, cut, sunk, stamped, engraved, repaired or mended by, or was in the possession of such person for some lawful purpose, shall lie upon him." {Ih. s. 9.) " Any Justice of the Peace, on complaint made before him upon the oath of one credible person, that there is just cause to suspect that any person is or has been concerned in making, counterfeiting or imitating any such coin as aforesaid, shall by wan j,nt under the hand and seal of such Justice, cause the dwelling-house, room, work-shop, out-house or other build- (( course must be done by circumstantial evidence. If for instance it be proved that he uttered or attempted to utter, either on the same day or at other i> nes, whether before or after the uttering charged, base money, either of the same or of a different denomination, to the same or to diflFerent persons, or had other pieces of base money about him when he uttered the counterfeit money in ques- tion \ this will be evidence from which a guilty knowledge may be presumed. — (Archbold's Crim. Plead. 619.) * Under this section must be proved — 1. The previous conviction, by a copy Surportjng to be signed and certified as a true copy by the clerk of tl»e cou -t or is deputy ; 2. The identity of the defendant; ancl 3. The subsequent offence. f It must be proved that the defendant made, .V^« IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I m m 2.5 2.2 III 1*0 2.0 IJ& IL25 i 1.4 1^1 1.6 Photographic Sciences Corporation 23 WIST MAIN STRIET WnSTH.N.Y. 14SM (716)«72-4S03 •'/ // "^A^ c ^ 4^ \ 180 THE magistrate's MANUAL. oflfender to the common gaol of the district, county or place, for a time not exceeding eight days, or until the same be paid, if sooner paid." (Ih. s. 32.) " One moiety of all the penalties imposed by the twenty-sixth to the thirty-second sections of this act (but not the coins or tokens forfeited under the provisions thereof), shall go to the informer or person suing for the same, and the other moiety shall belong to Her Majesty, for the public uses of this Pro- vince." {Ih. 8. 33.) COMMITMENT. A commitment may be absolute, or only for safe custody. It is absolute when, in default of distress, the penalty is imprison- ment ; for safe custody, when the party is committed to gaol to await his trial at the next court of competent jurisdiction. How Commitment is made. — The commitment should be under the hand and seal of the Justice, but the Justice may give a verbal order of detainer until it is made out, or where a warrant of distress is issued, or until a return has been made to such warrant of distress. (Con. Stat. C. c. 103, s. 60 ; a/nte^ p. 92.) The omission of the date in a warrant of commitment was held to be fatal ; but this was subsequently to a certain extent overruled, and the imprisonment held to run from the arrest under such commitment. Defective Commitbient. — ^If a warrant of commitment be defective or informal, it cannot be recalled, withdrawn or altered, but a valid warrant may be also lodged, which will justify the gaoler in detaining the prisoner. Commitment for Trial. — A person charged with an indicta- ble oftence, if sent for trial, should be committed to the next court of competent criminal jurisdiction. The court should be named in the warrant, and not stated as the next court of com- petent jurisdiction. Commttment in Indiotable Offences. — See Con. Stat. C. c. 102, 88. 57, 58 {omte p. 47.) Cc man' thief or rec is a n prisoi prosec mean< compc acquit Mis] that oi ing th( missior is a mi the par offence Cork goods, 1 felony t "Ifai or indirc to any ( whatsoe^ stolen, ol (unless h trial for j in the Pe imprison* tern^ less Offeri ^ade pun one who i costs of 81 THE MAGISTBATB's MANUAL. 181 be or ill COMPOUNDING OFFENCES. Compounding Felonies. — Though the bare taking again of a man's own goods which have been stolen (without favor to the thief) is no offence ; yet where he either takes back the goods, or receives other amends, on.conditHm of not prosecuting, this is a misdemeanor at common law, punishable by fine and im- prisonment. And so, in any other felony, an agreement not to prosecute an indictment for reward is punishable as a misde- meanor ; but in one case, where the defendant, after the alleged compounding, prosecuted the offender to conviction, he was acquitted. Misprision op Felony. — This offence is somewhat similar to that of compounding felony. It is the concealment, or procur- ing the concealment of felony. Silently to observe the com- mission of a felony, without trying to apprehend the offender, is a misprision. If to the knowledge there be added assent, the party will become an accessory. The punishment for this offence is by fine and imprisonment. Corruptly taking Rewards for helping to recover stolen goods, without causing the offender's apprehension, is made felony by Con. Stat. C. c. 92, s. 79, which enacts that — " If any person corruptly takes any money or reward, directly or indirectly, under pretence or on account of helping a person to any chattel, money, valuable security, or other property whatsoever, which by any felony or misdemeanor has been stolen, obtained or converted as aforesaid, such offender shall (unless he cause the offender to be apprehended and brought to trial for the same) be guilty of felony, and shall be imprisoned in the Penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any tern~, less than two years." Offering Rewards under promise of Secrecy. — This is made punishable by a fine of eighty dollars, to be paid to any one who may sue for it, by action of debt, to be recovered with costs of suit. (Con. Stat. C. c. 92, s. 80.) 182 THE magistrate's MANUAL. " In default of payment, in cases not otherwise provided for, of any fine imposed under the authority of this act, on a sum- mary conviction before any Justice of the Peace, together with the costs attending the same, within the period specified for the payment thereof at tli© time of conviction by the Justice before whom the conviction takes place, such Justice may issue his warrant directed to any constable to levy the amount of such fine and costs within a certain time to be in the said war- rant specified ; and in case of no distress suflScient to satisfy the amount being found, he may commit the offender to the com- mon gaol of the district, county or division wherein the offence is committed for any term not exceeding one month, unless the fine and costs be sooner paid." {Ih. s. 81.) Compounding, when allowed. — A compromise of criminal proceedings is in general permitted in those cases only in which the injured party might sue and recover damages. But by Con. Stat. C. c. 93, s. 38, in case any person be summarily convicted before a Justice of the Peace of any offence against this act, and it be a first conviction, the Justice, if he thinks fit, may discharge the offender from the conviction, upon his making satisfaction to the party aggrieved for damages and costs, or either of them, to be ascertained by the Justice. Although parties cannot compromise without the" Justice's consent. Justices have no power of compelling the complainant in summary proceedings to attend to give evidence. (See Con. Stat. C. c. 103, ss. 17, 18, rniU, p. 77.) CONCEALMENT OF BIRTH.* Con. Stat. C. c. 91, s. 4, enacts that, " Any woman delivered of a child, who, by secret burying or otherwise disposing of the * On an indictment for this offence it is necessary to prove — 1. The birth; 2. The secret burial or other disposal of the body ; 3. The endeavor to conceal the birth. As regards the first, the evidence of a competent physician is sufficient. Ad regards the secret disposal of the dead body, placing it in a drawer and keep- ing the key, or in a box, or under the bedding, or throwing it into the privy, is a sufficiently secret disposal of the body. But a woman who was seen carrving a bundle to the privy, which, on being opened, was found to contain the body of THE magistrate's MANUAL. 183 dead body of the said child, endeavors to conceal the birth thereof, shall be guilty of a misdemeanor, and shall be impri- soned for any term less than two years, and it shall not be necessary to prove whether the child died before, at, or after its birth." Conviction for Concealment on Indictment for Murder. — " If any woman tried for the murder of her child, be acquitted thereof, the jury may find, if it so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the body of the said child, endeavor to conceal the birth thereof, and thereupon the court may pass sentence as if she had been convicted upon an indictment for the concealment of the birth." (Con. Stat. U. C. c. 99, s. 67.) CONSPIRACY. A conspiracy is an agreement between two or more persons, 1. Falsely to charge another with a crime punishable by law, either from malice towards the party, or to extort money from him ; 2. Wrongfully to injure or prejudice a third person, or any body of men, in any other manner; 3. To commit any offence punishable by law; 4. To do any act to pervert the course of public justice ; 5. To effect a legal purpose with cor- rupt intent, or by improper means ; 6. To raise wages, &c. Under the first head, a conspiracy to charge a man falsely with treason, felony or misdemeanor, is indictable ; but it is not an indictable offence for two or more persons to consult and agree to prosecute a person who is guilty, or against whom there are reasonable grounds of suspicion. Under the second head, a conspiracy to impose a pretended a child, could only be indicted for the attempt. Also, if the woman had gone to the privy for some other purpose, but while there was unexpectedly delivered, and the child fell in and was suffocated, she could not be indicted, though she concealed the birth. A woman procuring the secret burial of the child by an agent is guilty of the offence, and her agent is accessory thereto. If ho be in- terested in the secret burial, and perform it of his own will, and without Rolicita- tion on her part, yet with her knowledge and consent, he will be principal, and she accessory. But if he do so without her knowledge or consent, though she conceal the birth, he will stand single in the o£fence. 184 THE magistrate's MANUAL. article upon a purchaser ; a conspiracy by a female servant and a man whom she got to personate her master and marry her, in order to defraud her master's relations of a part of his pro- perty after his death ; a conspiracy to injure a man in his busi- ness; a conspiracy, by false and fraudulent representations, that a horse bought by one of the defendants from the prose- cutor was unsound, to induce him to accept a less sum for the horse than the agreed price; a conspiracy to charge a man falsely as the reputed father of a bastard ; a conspiracy to raise the prices of bank stock or other stocks by false rumours ; a conspiracy to procure the defilement of a girl ; these have res- pectively been held to be indictable offences. It is necessary to prove the conspiracy, and that the defend- ants were engaged in it, or prove circumstances from which it may l)e presumed. And the prosecutor may go into general evidence of the nature of the conspiracy, before he gives evi- dence to connect the defendants with it. The acts and declara- tions also of any of the conspirators, in furtherance of the com- mon design, may be given in evidence against all. But before evidence as to the acts of one conspirator can be received against another, it is necessary that it should be proved that the consj^iracy actually existed, that the parties were members of the same conspiracy, and that the act in question was done in furtherance of the common design. The wife of one of the defendants should not be allowed to give evidence for or against the others. A conspiracy must be by two persons ; one cannot be convicted of it, unless for conspiring with persons unknown or who have not appeared, or are since dead. And a man and his wife alone cannot be indicted for conspiracy. " In case of the conviction of any prisoner for coaspiracy, the person convicted of any such offence may be sentenced to be imprisoned only, or impriSbned and kept at hard labor, or in solitary confinement in the common gaol or house of correction for any period less than two years, or may be imprisoned at hard labor in the Penitentiary for any term not less than two, .and not exceeding seven years." (Con. Stat. XJ. C. c. 115, s. 1.) %^ THE MAGISTRATE 8 MANUAL. 185 CONSTABLE. AiToixTMENT OP ORDINARY C0N8TABLE8. — 23 Vic. c. 8. Sec- tion 1 repeals the 10th section of cap. 17 Con. Stat. U. C. 2. " The magistrates, at the first General Quarter Sessions of the Peace to be holden in each county in Upper Canada, in the said year one thousand eight hundred and sixty-one, shall appoint [a county high constable (24 Vic. c. 48) and] a suffi- cient number of fit and proper persons to act as constables in each township, incorporated village, police village, and place, within their respective counties." 3. " The persons so appointed as constables shall, before entering on the duties of office, take and subscribe the follow- ing oath, which any Justice of the Peace may administer : having been appointed constable for the county of • — (or United Counties, THE HAOIBTBATB^S MANUAL. 201 cards," was held to be sufficient. Lord Campbell observed, " the general rule now is, that if you follow the words of the act, the conviction is right." And Mr. Justice Orompton, in same case, asked, '^ why should not the words in the conviction have the same sense as in the act of parliament f So also Mr. Justice Hill observed, *^ that generally speaking it is sufficient if the conviction follow the words of the statute." The con- viction need not recite or give the title of the statute creating the offence, but should conclude with the words "contrary to" or "against the form of the statute in such case made and provided," if the offender be proceeded against under a statute. Conviction under a By-law. — Heretofore it was held in all convictions under by-laws, that the particular by-law under which the conviction was made should be embodied in the conviction, but by 27 Yic, c. 18, this was amended as far as relates to Upper Canada. (See article " By-law," cmte.) Amendment op Conviction. — ^At the General Quarter Ses- sions of York and Peel, March, 1864, it was ruled that a magis- trate has a right to amend his conviction or return a new one to the office of the Clerk of the Peace at any time before the case is in court ; and the case is not before the court until the notice of appeal is proved. In summary convictions, where the evidence is equally bal- anced, or where there is any douht in the mind of the Justice, the defendant is entitled to the benefit of such doubt, and ought to be acquitted, or the complaint dismissed. Death of Justice. — If the Justice granting a warrant of commitment in execution die before it be executed, the execu- tion having been delayed by the defendant's having absconded, or any other cause, it is doubtful whether the warrant of the deceased Justice can be safely executed. It is conceived that a warrant of apprehension and not of commitment may be acted upon, notwithstanding the death of the Justice that granted it. . • ,. Death of the Infobmeb. — In case of the death of the informer in summary convictions before the hearing, the infor- ■ n 11^ f:§: 202 THE MAOISTBATB's MANUAL. mation is at an end, and cannot be proceeded with by the personal representatives. There is no one before the court against whom the Justice could issue a warrant of distress for costs, if the defendant should be acquitted ; nor has the Justice any power, it is apprehended, to enquire who are the represen- tatives, or to award the pencHy payable to an informer to his executors or administrators. COSTS. The amount of costs must be specified in the conviction or order. If is not usual in summary proceedings to allow the fee of an attorney, but there seems to be no legal objection against doing so, unless such fee be considered inconsistent with the fees established by law, to be taken on proceedings had by and before Justices of the Peace. (Con. Stat. 0. c. 103, s. 63, see p. 90, ante.) Unless there be a conviction or order the defendant cannot be ordered to pay costs to the complainant. In trivial cases it is not however unusual for the Justices to allow the information to be withdrawn, on the defendant consenting to pay expenses. In such a case it is better for the defendant to pay the complainant the costs as far as incurred, and for the complainant to be permitted to withdraw the complaint, pay- ing the costs. This course relieves the Justice of all liability to annoyance. In case of a first conviction under Con. Stat. 0. c. 93, B. 38, (see article " Malicious Mischief," postf) the Justice is empowered by that act to discharge the offender on his making satisfaction to the party aggrieved for damages and costs, or either of them, as ascertained by the Justice. It is not a fatal defect in a conviction that it does not award costs, though the act expressly mentions costs. Costs when case is dismis'sed. — In cases of summary juris- diction where the complainant fails to sustain his charge, and the case is dismissed by the Justice, the complainant must pay all costs if so ordered ; and he may, in default of distress, be committed by the Justice for any period not exceeding one month. The defendant cannot be charged with costs except in THE magistrate's MANUAL. 208 cases of conviction. A Justice therefore cannot dismiss a charge, and require the accused to pay the costs. * Fees reoeivablb by Justices of the Peace or bt their Clerks.— Con. Stat. U. C. c. 119, ss. 11-16. " The following fees, and no others, shall be taken by Justices of the Peace in Upper Canada, or by their clerks, for the duties and services hereinafter mentioned, that is to say : ^' For an information and warrant for apprehension, or for an information and summons for assault, trespass, or other misde- meanor, fifty cents / ^^ For each copy of summons to be served on defendant, or defendants, ten cents / ** For a stthpomaj ten cents, only one on each side being charged for in each case, and which may contain any number of names ; and if the Justice of the case requires it, additional svhjpcenas shall be issued without charge ; " For every recognizance, tuoenty-fi^e cents, only one to be charged in each case ; . " For every certificate of recognizance under the act respect- ing estreats, twenty-fi^e cents / , " For information and warrant for surety of the peace for good behaviour, to be paid by complainant, ^i(^ cents ; " For warrant of commitment for default of surety to keep peace or good behaviour, to be paid by complainant, fifty cents.^^ Fees in oases not expressly provided. — 12. *^ 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: .,.. .... ;.„. . " For information and warrant for apprehension, or for infor- mation and summons for service, ^i(y c^^/ " For every copy of sununons to be served upon defendant or defendants, ten cents; " For every stihpoma to witness (as provided in the eleventh section of this act,) ten cents / " For hearing and determining the ca^jfifify cents; " For warrant to levy penalty, twenty-five cents / ■.;> • '■') 204 THB MA0I8TBATE*! IfAKUAL. " For making up every record of conviction when the aame is ordered to be returned to the sessions, or on certiorari, one dollar; " For copy of any other paper connected with any trial, and the minutes of the same if demanded— every folio of one hun- dred words, ten oente.^^ - , • . . ■» •■ As TO ScMMABT Pbooeedinos. — 18. " But in all cases which admit of a summary proceeding before a Justice of the Peace, and wherein no higher penalty than twenty dollars can be imposed, the sum Jlfy cents only shall be charged for the con- viction, and twenty-five centa for the warrant to levy the penalty." . ' , . , ' Fees to Witnesses. — " And in all cases where persons are mbpcmaed to give evidence before Justices of the Peace, in cases of assault, trespass, or misdemeanor, the witness shall be entitled, in the discretion of the magistrate, to receive at the rate oi fifty centa for every day^e attendance where the distance travelled in coming to and returning from such adjudication does not exceed ten miles, and^^ centa for each mile above ten. Bill op Costs — 14. " Every bill of costs shall, when demanded, be made out in detail, and when so made, ten centa.^^ Fees not allowed to Justices in oases above misdemeanobs NOB TO Witnesses, except by oedeb of the Coubt. — 16. "This act shall not authorize any claim being made by the Justices aforesaid, for fees of any description connected with cases above .the degree of misdemeanor ; nor shall witnesses in cases above such degree be allowed anything for their attendance or travel, except under the order of the court before which the trial of the case is had." , .^ , .v. OosTS IN Abtioles of the Peaob. — ^In cases where articles of the peace are exhibited against a person, requiring him or her to give sureties for the peace and good behaviour, the accused may be arrested as already mentioned, and held to bail without any evidence being adduced in proof of the charge. In these cases the statute (Oon. Stat. U. C, c. 119, s. 11), requires the 00 an THB MAGfrreAmS MAKUAL. 205 complainant to pay the coste of the information and warrant, and tho warrant of commitment in default of sureties, each fifty centa. It is presum^iJ the accuied would have to pay for the rocognizanco to keep the peace ; at least suob is tlie general practice. Costs of Justiob whebb Oomflaimt ib diskimbp. — These and all ot)ier costs are to be paid by complainant. Information and summons fifty oenUj copy of summons ten oentSy hearing fif^ oentSy if one witness or more for the complainant ten centSj if one witness or more for defendant ten cents. Where no con- viction or order is made, none can be charged for. The fees of a Justice where a conviction is made, and where no higher penalty than twenty dollars can be imposed, are — information cmd summons, or information and warrant, fifty cents ; copy of summons, ten cents ; hearing and determining the g9i&q^ fifty cents; conviction, ^ify cents; ten cents in addition for svhpoena for witness or witnesses for plaintiff, — the same for suhpcena to defendant's witness or witnesses/ fifty cents in addition for the record of conviction, where a higher penalty than twenty dollars can be. imposed. Constables' Costs. — See under article " Constable." The constable is entitled to twenty five cents, for the service of each summons, one ddUa/r for arresting under a warrant, ten cents for each mile necessarily travelled to serve summons or warrant ; attending Justice on trial, for each day necessarily employed, one doUa/r ; levying upon distress warrant and returning the same, one dollar. CRUELTY TO ANIMALS. "If any person wantonly, cruelly, or unnecessarily beats, binds, ill-treats, abuses or tortures any horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep, lamb, pig or other cattle, or any poultry, or any dog, or domestic animal or bird ; or if any person driving any cattle or other animal is, by negligence or ill-usage in the driving thereof, the means whereby t Iff 206 THE ICAOISTBATB'S MANUAL. any mischief, damage or injury is done to any such cattle or other animal ; every such offender, being convicted of any or either of the said offences before any one Justice of the Peace for the city, town, district or county in which the offence has been committed, shall, for every such offence, forfeit and pay (over and above the amount of the damage or injury, if any, done thereby, which damage or injury shall and may be ascer- tained and determined by such Justice), such a sum of money not exceeding ten dollars, nor less than one dollar with costs, as to such justice seems meet." (Con. Stat. C. c. 96, s. 1.) Binding Sheep. — Binding sheep, &c., while conveying them to market for a distance of under fifteen miles, is no offence ; but the animals are not to remain bound for more than half an hour after arriving at the market. (See Ih. s. 4.) Abrest. — Any constable, or the owner of the animals, may, on seeing them ill-treated, or on information thereof from some third party, (who must leave his or their name and residence with the constable,) seize the offender without warrant or authority, except the authority by this act conferred, and con- vey him to some Justice under whose jurisdiction the offence was committed, and the Justice shall forthwith proceed to examine the case. (See Ih. s. 5.) ' CoMMTTMENT ON BEFusAL TO GIVE Name. — The Justico may commit to gaol an offender against this act, who refuses to give his name or residence, for one month or less, or till he gives the required information. (See /J. s. 6.) LiMTTATiON. — " The prosecution of every offence punishable under this act must be commenced within three months next after the commission of the offence, and not otherwise ; and the evidence of the party complaining shall be admitted in proof of the offence, and may be accepted as sufficient in the absence of any other evidence." {Ih. s. 7.) Commitment on default. — " In every case of a conviction under this act, where the sum awarded for the amount of the damage or injury done, or imposed |» a penalty by any such THE MAOISTBATe's MANUAL. 207 Justice as aforesaid, for any oflfence contraty to this act, is not paid either immediately upon or after the conviction, or within such period as such Justice at the time of the conviction appoints, such Justice (unless where otherwise specially directed) may commit the offender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard laboiu:, for any term not exceeding fourteen days, where the amount of the sum awarded or the penalty imposed, or both (as the case may be), together with the costs, do not exceed twenty dollars; and for any term not exceeding two months where the amount with costs exceeds twenty dollars ; the com- mitment to be determinable in each of the cases aforesaid upon payment of the sum or sums awarded, and costs." {Ih. s. 8.) Procedure. — " In all cases in which no other mode of pro- ceeding is specially provided or directed by this act, and in any case where tl\e person is not conveyed before any Justice by the authority of this act, any such Justice as aforesaid, upon information or complaint made by any person of any offence against the provisions of this act, within fourteen days next after the commission of the offence, shall summon the party accused to appear before such Justice, or before any other Jus- tice of the Peace, at a time and place to be by him named, and either on the appearance of the party accused or in default thereof, such Justice or any other Justice, at the time and place appointed for such appearance, may proceed to examine into the matter, and upon due proof made thereof by voluntary confession of the party, or by oath of a credible witness, shall award, order, give judgment, or convict, for the damage or injury, penalty or forfeiture, as the case may be." {II. s. 9.) fy|* FORM OF CONVICTION. County {or a* the ecue ) Be it remembered, that on the day of may he) of . \ in the year of our Lord at in the county (or as the case may he) of A. B. is convicted before me, J. P., one of Her Majesty's Justices of the Peace for the said county, {or as the case may fte), for that he the said A. B. on the day of in the year at in the said did {here specify the offence), and I, the said J. P., do adjudge the said A. B. for his said offence, to forfeit and pay the sum of {here state the penalty actually imposed, or the penalty and also the amount of damages for the injury done, or as the ease may le\ and also to 208 THB MAGISTRATE'S MANUAL. pay the sum of foi'costs, and in default of immediate payment of the said sums, to be imprisoned in the {and i'. iif DEAD BODIES— OFFENCES RELATING TO. Interment of. — " The council of every city, town and incor- porated village may respectively pass by-laws for the following purposes: .;.;'> . ; .>• • ^ " For regulating the interment of the dead, and for prevent- ing the same taking place within the municipality ; " For directing the keeping and returning of bills of mor- tality ; and for imposing penalties on persons guilty of default in doing so." (Con. Stat. U. 0. c. 54, s. 294.) Peoteotion of Graves. — " The council of every township, city, town or incorporated village may pass by-laws for pre- venting the violation of cemeteries, graves, tombs, tombstones or vaults where the dead are interred." (jh s. 266.) THE MAOISTKATe's MANUAL. 211 DESERTION— ENTICING TO. Nothing contained in the criminal law of Canada shall alter or affect the laws relating to the government of Her Majesty's land and naval forces. (See Con. Stat. C. c 90, s. 2.) Enticing to Desebt. — " If any person other than an enlisted soldier in Her Majesty's service, or a sailor engaged in the naval service of Her Majesty, by words or with money, or by any, ways, methods, or means whatsoever, directly or indirectly, persuades, encourages, prevails upon, or procures any such soldier or sailor to desert or leave Her Majesty's military or naval service, such offender is guilty of a misdemeanor, and upon conviction before any court of Oyer and Terminer and general gaol delivery in Upper Canada, shall be punished by fine and imprisonment in the common gaol of the county in which the conviction takes place, for such period, being less than two yeare, as the said court may impose, or by imprison- ment at hard labor in the penitentiary for a period not less than two years, in the discretion of the court." (Con. Stat. U. C. c. 100, s. 1.) " If any* person other than an enlisted soldier, or a sailor engaged in the naval service of Her Majesty, conceals, receives or assists any deserter from Her Majesty's naval or military service, knowing him to be a deserter, the person so offending is guilty of a misdemeanor, and upon conviction before any such court as aforesaid shall be liable to the same punishments mentioned in the preceding section of this act.'* {Ih. s. 2.) m " !| w «.^ DISTRESSES FOR SMALL PENALTIES. Time op Sale. — In warrants of distress the Justice should limit the time of sale to not sooner than,/^ and not later than eight days, unless any other time be specially named in the act under which the warrant is granted, and the costs attending the distress may be deducted. Costs op Disteess. — " No person making any distress for rent or for any penalty, when the sum demanded and due does 212 THE magistrate's MANUAL. not exceed the sum of eighty dollars, in respect of rfach rent or penalty, and no person employed in making such distress, or doing any act in the course of such distress, or for carrying the same into effect, shall take or receive from any person or out of the produce of the chattels distrained upon and sold, any other costs in respect of such distress than such as are set forth in the schedule hereunto annexed ; and no person shall make any charge for anything mentioned in the said schedule, unless such thing has been really done." (Con. Stat. U. C. 123, s. 1.) Extortion. — " If any person offends against any of the pro- visions in the foregoing section contained, the party aggrieved thereby may apply to any Justice of the Peace for the county, city, or town where the offence was committed, for the redress of such grievance, whereupon such Justice shall summon the person complained of to appear before him, at a reasonable time to be fixed in the summons, and the Justice shall examine into the matter of such complaint, and also hear the defence of the person complained of; and if it appears to the Justice that the person complained of has so offended, such Justice shall order and adjudge treble the amount of the money, unlawfully taken and full costs to be paid by the offender to the party aggrieved." (/J. s. 2.) " , How Penalty to be levied. — " In case of non-payment of any money or costs so adjudged to be paid, the Justice shall forthwith issue his warrant to levy the same by distress and sale of the goods and chattels of the party convicted, rendering to him the overplus if any." {Ih. s. 3.) Commitment. — " In case no sufficient distress can be had the Justice shall, by warrant under his hand and seal, commit the party to the common gaol within the limits of his jurisdiction, there to remain until the order or judgment; be satisfied." (/&. s. 4.) Penalty for preferring unfounded Complain^. — " If the Justice finds that the complaint of .the party aggrieved is not well founded, he may order and adjudge costs, not exceeding four dollars, to be paid by the complainant to the party com- THE MAGISTBATe's MANUAL. 213 plained against, which order shall be carried into eifect and levied and paid in such manner as is hereinbefore directed, as to the order and judgmfent founded on the original complaint." (75.8.7.) t* I Justices not to make orders against Landlord. — " Nothing hereinbefore contained shall empower the Justice to make any order or judgment against the landlord for whose benefit any such distress has been made, unless the landlord personally levied the distress." {Ih. s. 8.) Persons levying Distress to give Copy of Charges to party Distrained. — " Every person who makes and levies any dis- *tress shall give a copy of demand, and of all the costs and charges of the distress, signed by him, to the person on whose goods and chattels the distress is levied, although the amount of the rent or penalty demanded exceeds the sum of eighty dollars." (/J. s. 11.) ?ORMS. Order and judgment for complainant. In the matter of the complaint of A. 6. against C. D. for the breach of the provisions of the Consolidated Statutes for Upper Canada, intituled, An Act (insert the title of this Act), I, E. F., a Justice of the Peace for the ^ do order and adjudge, that the said C. D. 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 distress for (as the case may be), and the further sum of for costs in this complaint. (Signed) E. F. Order for dismissal. In the matter of the complaint of A. B. against C. D. for the breach of the provisions of the Consolidated Statutes for Upper Canada, intituled, An Act (here insert the title of this Act), I, E. F., a Justice of the Peace in and for the do order and adjudge that the complaint of the said A. B. is \ founded (if costs are given), and I do further order and adjudge that the said A. B. shall pay unto the said C. D. the sum of . (Signed) E. F. Schedule of Costs and Charges on Distress for small Rents and Penalties. — Levying distresses under eighty dollars, one dollar; man keeping possession, per diem, seventy-five cents ; appraisement, whether by one appraiser or more, two cents on the dollar on the value of the goods ; if any printed ^ f] 214 TIIE magistrate's MANUAL. advertisement, not to exceed in all one dollar ; catalogues, sale and commission and delivery of goods, five cents in the dollar on the net produce of the sale. » Ketubn op Warrant. — The constable is bound to certify to the Justice, at the time assigned for the return of the warrant, what lie has done upon it. He need not, nor should he, return the warrant itself, for that is his own. If the constable refuses to certify to what he has done, or if he has levied the penalty, and refuses to pay it over, he may be proceeded against by indictment or information ; or it seems the Justices before whom the warrant is returnable may fine him. • Fraudulent removal of Goods distrainable fob Rent. — By 11 Geo. II. c. 19, s. 1, if any tenant for life, years, at will, sufferance, or otherwise, shall fraudulently or clandestinely con- vey off the premises his goods or chattels, to prevent the landlord from distraining, such landlord, or any person by him lawfully empowered, may in thirty days next after such conveying away, seize the same wherever they shall be found, and dispose of them in such manner as if they had been distrained on the premises. S. 2. But no landlord shall distrain any goods sold hon^fide and for a valuable consideration,^ before such seizure made, to any person not privy to such fraud. S. 3. And if any tenant shall so fraudulently remove and convey away the 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 ccmcealing 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. S. 4. But if the goods and chattels so fraudulently carried off or concealed shall not exceed the value of £50, the landlord or his agent may exhibit a complaint in writing before ty}0 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 facts and all proper ^ - THE magistrate's MANTAL. 215 e e e y witnesses upon oath (or if a Quaker, upon affirmation), and in a summary way determine whether such person or persons be guilty of the offence with which he or they are charged ; and to enquire in like manner of the value of such goods and chat- . tels ; and upon full proof of the offence, by order under their hands and seals, the said Justices shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord, his bailiff servant, or agent, at such time as the said Justices shall appomt ; and if the offender or offenders, having notice of such order, shall refuse or neglect so to do, , they shall, by their warrant, levy the same by distress ; and for want of such distress may commit the offender or offenders to the house of correction, there to be kept to hard labour, with- out bail or mainprise, for the space of six months, unless the money so ordered to be paid as aforesaid shall be sooner satis- fied. S. 6. Persons aggrieved by order of such Justices may appeal to the next General Quarter Sessions, who may give costs to either party. S. 6. And where the party appealing shall enter into recognizance, with one or two sureties, in double the sum so ordered to be paid, with condition to appear at such Sessions, the order of the Justices shall not be executed against him in the mean,time. S. 7. Where any goods or chattels fraudulently or clandestinely conveyed or carried away, shall be put, placed, or kept in any house, bam, stable, outhouse, yard, close or place locked up, fastened or otherwise secured, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent, it shall be lawful for the landlord, or his steward, bailiff, receiver, or other person or persons empowered, to take and seize, as a distress for rent, such goods and chattels (first calling to his assistance the constable, head borough, or other peace officer of the dis- trict, &c.) ; and in case of a dwelling house (oath being first made hehTe^s>jjMsiice~^.the.JPeace 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, st able, out^^ ~ ^ouse,yaTd^ close, or place, and to take and seize such goods ' an^TcHattels for tHe said arrears of rent as he might Kave'Sone •if they had been in any open place. v> ft '^ t^ 216 THB MAOIBTBATE'g MANITAL. It appears that in order to justify proceedings under this statute the removal must have taken place after the rent became due. DISTURBANCE OF PUBLIC WORSHIP. " Any person who wilfully disturbs, interrupts, or disquiets any assemblage of persons met for religious worship, by profane discourse, by rude or indecent belAviour, or by making a noise either within a place of worship or so near it as to disturb the order or solemnity of the meetin^T^ shall, upon conviction thereof before a Justice of the Peace, on the oath of one or more credible witnesses, forfeit and pay such sum of money, not exceeding twenty dollars, as the said Justice may think fit, and costs, within the period specified for the payment thereof, by the convicting Justice at the time of the conviction ; and in default of payment, such Justice shall issue his warrant to a constable to levy such fine and costs within a time to be speci- fied in the warrant ; and if no sufficient distress can be found, such Justice shall commit the offender to the common ^.iol of the district, county or division wherein the offence was com- mitted, for any term not exceeding one month, unless the fine and costs be sooner paid."* (Con. Stat. C. c. 92, s. 18.) DRILL—ILLEGAL. " All meetings and assemblies of persons for the purpose of training or drilling, or of being trained or drilled to the use of arms, or for the purpose of practising military exercises or evolutions, without lawful authority, are prohibited ; and every person who attends any such meeting or assembly for the pur- pose of training or drilling any other person or persons to the use of arms, or to the practice of military exercise or evolutions, or who trains or drills any other person or persons to the use of arms, or to the practice of military exercise or evolutions, as * There will, no doubt, be cases where it would only be just that the person convicted under this section should be kept at hard labour, out the act does not authorize such a punishment. THE magistrate's MANUAL. 217 aforesaid, or who aids or assists therein, is guilty of a misde- meanor, and shall be confined in the Penitentiary for the term of two years, or be punished by fine and imprisonment in the common gaol of the county in which the conviction takes place for any period less than two years; and every person who attends any such meeting or assembly, for the purpose of being, or who at any such meeting or assembly is trained or drilled to the use of arms, or to the practice of military exer- cise or evolutions, is guilty of a misdemeanor, and shall be punished by fine and imprisonment ip the common gaol for any period less than two years, at the discretion of the court." (Con. Stat. U. C. c. 99, s. 1.) " Any Justice of the Peace, or any constable or peace officer, or any person acting in their aid, may disperse any such un- lawful meeting or assembly as aforesaid, and arrest and detain any person present at, or aiding, assisting or abetting, any such assembly or meeting ; and the Justice of the Peace who arrests any such person, or before whom any person so arrested is brought, may commit him for trial, unless such person gives bail for his appearance at the then next assizes to answer to any indictment which may be preferred against him, for any such offence against this act." {Ih. s. 2.) " This act shall not prevent any prosecution, by indictment or otherwise, for anything that is an offence within the intent and meaning hereof, and which might have been so prosecuted if this act had not been made, unless the offender has been prosecuted for such offence under this act, and convicted or acquitted thereof." (Ih. s. 3.) " All Justices of the Peace in and for any county in Upper Canada shall have concurrent jurisdiction as Justices of the Peace with the Justices of any other county in all cases as to the carrying into execution the provisions of this act, and as to all matters and things relating to the preservation of the public peace, as fully and effectually as if each of such Justices were in the commission of the peace for each of such counties." {n. 8. 4.) " The Governor, by and with the advice of the Executive Council, may by proclamation declare that this act shall be it il '1 218 THB HAOISTBATS'S MANUAL. no longer in force in any particular county therein epecified ; and from and after tlie period Bpeciiied in Buch proclamation, the powers of this act shall no longer be in force in such county ; and the Governor, upon such advice as aforesaid, may by proclamation declare any such county to be again within the powers of this act." (Ih. s. 6.) " No person shall be prosecuted for any offence done or com- mitted contrary to the provisions of this act, unless the prose- cution be commenced within six months next after the offence committed." (Ih. s. 6.) "Any action or suit brought against any Justice of the Peace, constable, peace officer, or other person, for anything done or acted in pursuance of tliis act, must be commenced within six months next after the fact committed, and not after- wards ; and the venue in any such action or suit shall be laid in the proper county where the fact was committed, and not elsewhere ; and the defendant may plead the general issue, and give this act and the special matter in evidence in any trial to be had thereupon ; and if such action be brought after the time limited for bringing the same, or if the venue be laid in any other place than as aforesaid, then the jury shall find a verdict for the defendant ; and in such case, or if the plaintiff becomes nonsuit, or discontinues his action after appearance by the defendant, or if the jury find a verdict for the defendant upon the merits, or if upon demurrer judgment be given against the plaintiff, the defendant shall have double costs, as between attorney and client, to be recovered in the same manner as in other cases." {Ih. s. 7.) . . DRUNKENNESS. Drunkenness is punishable, by 21 Jac. 1, c. 7, with the pen- alty of five shillings, and if the defendant be unable to ]my the costs of arrest, conviction, &c., he may be imprisoned for any period not exceeding thirty days. Under the above statute, upon a second offence, the offender may be bound in a recog- nizance of ten pounds, with two sureties for good behaviour, but conviction must in all cases be had in six weeks. THE MAOISTBATE^S MANUAL. 219 But tho chief regulations with regard to drunkennesfl must be sought in tho by-laws of each municipality, in accordance with tho provisions of tho Municipal Act. (Con. Stat. U. 0., i>QO article " Spirituous Liquors," jpo«A) c. 54, 8. 284. ELECTIONS— OFFENCES RELATING TO. Con. Stat. C. c. 6, as amended by 23 Vic. c. 17, 24 Vic. c. 25, and 27 Vic. c. 8, governs, at present, the elections of members of the Legislature. « False Personation. — " If at the election of a member to serve in the Legislative Council or Assembly, any person knowingly personates and falsely assumes to vote in the name of any other person whose name appears on the proper list of voters, whether such other person be then living or dead, or if the name of the said other person be the name of a fictitious person, every such person shall be guilty of a misdemeanor, and on being convicted thereof shall be liable to a fine not ex(;eeding two hundred dollars, or to be imprisoned for a term not exceeding six months, or both, at the discretion of the court." (Con. Stat. C. c. 6, s. 60.) Penalty on unqualified Persons voting, and for voting MORE than once AT SAME ELECTION. — "Any porson wilfully voting at any such election, without having at the time of his so voting all the qualifications required by law for entitling him so to vote at such election, knowing at the time that he was not so entitled, shall for so doing incur a penalty of forty dollars, and his vote shall moreover be null and void ; and in any action or prosecution instituted, as hereinafter provided, against any such person for the recovery of the said penalty? the burden of the proof of such person having, at the time of his so voting at such election, all the said qualifications, or good reason for believing so, shall fall upon him, and not upon the party instituting such action or prosecution ; and any person who votes more than once at the same election, shall for so doing incur a like penalty of forty dollars, and every vote he I ■m 220 THE magistrate's MANUAL. gives subsequently to his first vote shall be null and void. (75. 8.61.) Penalty fob fraudulently conveying Lands in order to GIVE A YoTE. — If any lands or tenements are transferred or conveyed to any person, by any title or instrument whatsoever, fraudulently and for the purpose of giving him the qualifica- tion requisite to enable him to vote at any election, and if such person votes at such election, upon such lands or tenements, he shall incur a penalty of one hundred dollars." (Ih. s. 62.) Keeping the Peace. — " From the time when any returning officer or deputy returning officer has taken and subscribed the oath of office as such, until the day after the final closing of such election, the returning officer and deputy returning officer respectively shall bo conservators of the peace, and invested with the same powers with which Justices of the Peace are invested in this Province ; and for maintenance of the peace and of good order at such election, each such returning officer or deputy returning officer may require the assistance of all Justices of the Peace, constables and other persons present at the election, whether at the hustings or at any polling place, to aid him in so doing, and may also swear in as many special constables as he deems necessary; and 'each such returning officer or deputy returning officer respectively may arrest or cause to be arrested by verbal order, and may place in the custody of one or more constables or other persons, for such time as in his discretion seems expedient, any person disturbing the peace and good order, or may cause such person to be imprisoned for any such offfence, under an order signed by him, until any period not later than the final closing of the election or poll, respectively ; which order, whether given verbally or in writing, all persons shall obey without delay, under a penalty, for any refusal or neglect so to do, of twenty dollars. No such arrest, detention or imprisonment shall in any manner exempt the person so arrested, detained, confined or impri- soned, from any pains or penalty to which he has become liable by reason of anything by him done, contrary to the true intent or meaning of this act or otherwise." {lb. s. 72.) THE magistrate's MANUAL. 221 When Special Constables to be sworn. — On a requisition in writing, made by any candidate, or by his agent, or by any two or more electors, any returning officer or deputy returning officer shall swear in such special constables. {Ih.. s. 73.) Returning Officer may demand the surrender of all Arms. — "Any returning officer or deputy returning officer may, during any part of the days whereon any such election is to be begun, holden or proceeded with, demand and receive from any person whomsoever any offensive weapon, such as jBre-arms, swords, stones, bludgeons, or the like, with which any such person is armed, or which any such person has in his hands or personal possession ; and every such person who, upon such demand, decli»es or refuses to deliver up to such returning officer or deputy returning officer any such offensive weapons as aforesaid, shall be deemed guilty of a misdemeanor, punishable by fine not exceeding twenty dollars, or imprisonment not exceeding three montlis, or by both, in the discretion of the court whose duty it is to pass the sentence of the law upon such person, upon his conviction." {Ih. s. 74.) ", Certain Batteries during Election time to be deemed Aggravated Assaults. — " Every person convicted of a battery committed during any part of the days whereon any such elec- tion is to be begun, holden or pro6eeded with, or on which any poll for such election is to be begun, holden or proceeded with, within the distance of two miles of the place where such elec- tion or such poll is to be begun, holden or proceeded with, shall be deemed guilty of an aggravated assault, and shall be punished accordingly." {Ih. s. 75.) Entertainment not to be furnished to Electors. — "No candidate for the repi-e»entation of any electoral division shall, with intent to promote his election, nor shall any other person, with intent to promote the election of any such candidate, either provide or furnish entertainment at the expense of such candidate or other person, to any meeting of electors assembled for the purpose of promoting such election, or pay for, procure or engage to pay for any such entertainment ; except only that ' ').?, If III. 222 THE MAGISTBATE'S MANUAL. I I nothing herein contained shall extend to any entertainment furnished to any meeting of electors by or at the expense of any person or pei*8ons at his, her or their usual place of residence." llb.B.76.) With certain exceptions, no Steanqer shall come armed INTO ANY Parish, &o., while the Poll is open therein. — Except the retummg officer or his deputy, one of the consta- bles or special constables, no person who hath not a stated residence within the locality for at least six months next before the day of such election, shall come, during any part of the days upon which such poll is to remain open, into such locality armed with any kind of offensive weapons, nor approach within a distance of two miles, miless called upon to do so by lawful authority. (See Ih. s. 77.) Party Ensigns, Flags, &o, — " No candidate for the repre- sentation of any electoral division, or any other person, shall furnish or supply any ensign, standard, or set of coloure, or any other flag, to or for any person or persons whomsoever, with intent that the same should be carried or used in such electoral division on the day of election, or within eight days before such day, or during the continuance of such election, by such person or any other, as a party flag, to ^stinguish the bearer thereof and those who might follow the same as the supporters of such candidate, or of the political or other opinions enter- tained or supposed to be entertained by such candidate ; nor shall any person for any reason carry or use any such ensign, standard, set of colours, or other flag, on the day of election, or within eight days before such day, or during the continuance of such election." (7J. a. 78.) Party Badges. — Section 79 enacts, that no candidate, or other person, with the intent that the same should be worn or used at such election, or within eight days thereof, shall furnish any ribbon, label, or such like, nor shall any person use or wear any ribbon, label or such like badge, on the day of such election, or within eight days thereof. ^ (See Ih. s. 79.) Punishment foe contravening the four next preceding SBcrnoNs. — " Every person offending against the four next pre- THE MAQISTEATE'B MANUAL. 223 ceding sections shall be deemed gnilty of a misdemeanor, punishable by fine not exceeding one hundred do^'lars, or impri- sonment not exceeding six months, or by both, in the discretion of the court passing the sentence of the law upon such person, upon his conviction." {Tb. b. 80.) Taverns to be closed. — " Every hotel, tavern and shop, in which spirituous or fermented liquors or drinks are ordinarily sold, shall be closed during the two days appointed for polling in the wards and municipalities in which the polls are held, in the same manner as it should be on Sunday during divine ser- vice, and no spirituous or fermented liquors or drinks shall be sold or given during the said p^'iod, under a penalty of one hundred dollars against the keeper thereof if he neglects to close it, and the like penalty if he sells or gives any spiiituous or fermented liquors or drinks as aforesaid." {Ih, s. 81.) Stealing or falsifying Documents. — " If any person steals or unlawfully or maliciously, either by violence or stealth, takes from any deputy returning officer or poll clerk, or from any other person having the lawful custody thereof, or from its lawful place of deposit for t^ie time being, or unlawfully or maliciously destroys, injures or obliterates, or causes to be wilfully or maliciously destroyed, injured or obliterated, or makes or causes to be made any erasui'e, addition of names or interlineation of names in, to or upon, or aids, counsels or assists in so stealing, taking, destroying, injuring or obliterating, or in making any erasure, addition of names or interlineation of names in, to or upon any list of voters, or any writ of elec- tion, or any return to a writ of election, or any indenture, poll book, certificate or affidavit, or any other document or paper, made, prepared or drawn out according to or for the purpose of meeting the requirements of this act or any of them, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned in the Provincial Penitentiary for any term not exceeding seven nor less than two years, or to suft'er such other punishment by fine or imprisonment, or both, as the court shall award ; and it shall not, in any indictment for such offence, be h % p'i ii 224 THE magistrate's MANUAL. necessary to allege that the article respecting which the offence is committed is the property of any person, or that the same is of any value." {Ih. s. 85.) Abettors. — " Every person who aids, abets, counsels, or pro- cures the commission of any misdemeanor under this act, shall be liable to be indicted and punished as a principal offender." (/&. s. 86.) , ; ,. How Penalties recoverable. — " All penalties imposed by this act shall be recoverable, with full costs of suit, by any person suing for the same by action of debt or information, in any of Her Majesty's courts in this Province having competent jurisdiction ; and in default of payment of the amount which the offender is condemned to pay, within the period to be fixed by such court, such offender shall be imprisoned in the common gaol of the place until he has paid the amount which he has been so condemned to pay, and the c jsts. It shall be sufiicient, in any indictment or information for any offence committed contrary to this act, to allege the particular offence charged upon the defendant, and that the defendant is guilty thereof, without mentioning the writ of election, or the return, or the authority of the returning officer founded upon any such writ of election." (i^. s. 87.) * > . - ■ Stealing, &o., Wriis, &o., of Municipal Election. — "If any person str/ils, or unlawfully or maliciously, either by violence or stealth, takes from any deputy returning officer or poll clerk, or jfrom any other person having the lawful custody thereof, or from its lawful place of deposit for the time being, or unlawfully or maliciously destroys, injures or obliterates, or causes to be wilfully or maliciously destroyed, injured or obliterated, or makes or causes to be made any erasure, addition of names or interlineation of names, in, to or upon, or aids, counsels or assists in so stealing, taking, destroying, injuring or obliterating, or in making any erasure, addition of names or interlineation of names in, to or upon any writ of election, or any return to a writ of election, or any indenture, poll book, certificate or affidavit, or any other document or THE MAGISTRATE 8 MANUAL. 225 paper, made, prepared or drawn out according to or for the purpose of meeting the requirements of the law in regard to municipal elections, every such offender shall be guilty of felony, and shall be liable to be imprisoned in the Provincial Penitentiary for any term not exceeding seven nor less than two years, or to be imprisoned in any other place of confine- ment for any term less than two years, or to suffer such other punishment by fine or imprisonment, or both, as the court shall award ; and it shall not, in any xudictment for any such offence, be necessary to allege that the article in respect of which the offence has been committed was or is the property of any person, or that the same was or is of any value." (Con. Stat. U. C. c. 54, B. 185.) n .i EMBEZZLEMENT.* By Clerks, &o. — " If any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or ser- vant, by virtue of such employment, receives or takes into his possession any chattel, money or valuable security for, or in the name or on the account of his master, and fraudulently embezzles the same or any part thereof, such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money or security was not received into the possession of such master otherwise than by the actual possession of his clerk, servant or other person so employed ; and such offender shall be liable to any of the punishments * Embezzlement is only a species of larceny. It is in every respect a precisely similar crime to that which is committed by a «ervant who receives property from his master and appropriates, it. This is larceny, because the possession of the master continues in law until the wrongful appropriation by the servant. The case which was held not to be larceny, was that of a banker's clerk who received money from a customer and appropriated it ; and the reason given was, that as the employer had never had possession of the money, he had never been wrongfully deprived of the possession of it. The statutes against embezzlement, however, made the master's possession comiuence from the moment that his pro> perty -> r 15 226 THE MAOISTBATB'S MANUAL. which the court may award as hereinbefore last mentioned." * (Con. Stat. 0. c. 92, s. 42.) Misapplication by Agents, &c. — " If any money or security for the payment of money having been entrusted to any banker, merchant, broker, attorney or other agent, with a direction in writing to apply such money or any part thereof, or the pro- ceeds or any part of the proceeds of such security, for any purpose specified in such direction, and such person, in violation of good' faith, and contrary to the purpose so specified, in any wise converts to his own use or benefit such money, security or proceeds, or any part thereof respectively, every such oflfender shall be guilty of a misdemeanor, and shall be impri- soned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years, or suffer such other punish- ment by fine or imprisonment, or by both, as the court may award." (/J. s. 43.) " If any banker, merchant, broker, attorney or other agent * A few remarks as to persons within the meaning of this section may be necessary. All servants, whether of individuals or corporations, are within the statute. As to clerks, the following are some of the cases which have been de- cided : — A person employed to travel on commission for orders and to collect debts, was held to be a clerk within the act, though employed by many different houses on each journey, and though he did not live with any of his employers, nor act in any of their counting houses. But in another similar case the defend- ant was considered as an agent. The servant of several partners is held to be the servant of each. A coach-driver was held to be the servant of one of the proprietors of the coach. Apprentices, though under the age of eighteen years, are within the act. The same rule holds with regard to a person only occa- sionally employed; but he must have been in the employ of the prosecutor at the time the offence was committed. A clerk to a savings' bank may be considered as the servant of the trustees, though elected by the managers. A member of and secretary or treasurer to a society, was held to be the servant of the trustees, though the sociiety was not an enrolled one. But a person can- not be convicted of embezxlement as clerk or servant of an illegal society. Where a servant is to receive part of the price of an article as his pay, and appropriates more than his share, he is guilty of embezzlement, even where the servant made the article himself out of his master's materials. Where money is received contrary to the terms of employment, it is not within *the act. If the servant has no authority to receive the money, he cannot be guilty of embezzle- ment, though the money is paid to him on the supposition that he has such authority. The act also applies to a servant who embezzled money received from a customer, to whom tne master gave it to try the servant's honesty. It is not sufficient to prove the receipt of money, and that it is not entered in account ; a denial of the receipt or a false account must be shown. There must be proof of a specific sum embezzled ; a general deficiency is not sufficient. THE MAGISTRATE 8 MANUAL. 227 having been entrusted with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this Province or of the United Kingdom of Great Britain and Ireland, or of Great Britain, or of Ireland, or of any British colony or Foreign State or Country, or in any fund of any body corporate, com- pany or society for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer or pledge the same, and such person in violation of good faith, and contrary to the purpose for which such chattel, security or power of attorney has been entrusted to him, sells, negotiates, transfers, pledges, or in any manner converts to his own use or benefit such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney relates, or any part thereof, such offender shall be guilty of a misdemeanor, and shall be liable to any of the punishments which the court may award, as hereinbefore last mentioned." {Ih. s. 44.) "Nothing hereinbefore contained relating to agents shall affect any trustee in or under any instrument whatever, or any mortgagee of any property real or personal, in respect of any act done by such trustee or mortgagee in relation to the pro- perty comprised in or affected by any such trust or mortgage ; nor shall restrain any banker, merchant, broker, attorney or other agent from receiving any money which may become actually due and payable upon or by virtue of any valuable security according to the tenor and effect thereof, in such manner as he might have done if this act had not been passed ; nor from selling, transferring or otherwise disposing of any securities or effects in his possession, upon which he has any lien, claim or demand, entitling him by law so to do ; unless such sale, transfer, or other disposal extended to a greater number or part of such securities or effects than was requisite for satisfying such lien, claim or demand." {Ih. s. 45.) Factobs pledgino Goods entrusted to them. — ^^ If any factor or agent, entrusted for the purpose of sale with any goods or merchandize, or entrusted with any bill of lading, warehouse keeper's or wharfinger's certificate or warrant or order for m 228 THE MAOISTBATE'S MANUAL. i delivery of goods or merchandize, deposits or pledges for his own benefit and in violation of good faith any such goods or merchandize, or any of the said documents as a security for any money or negotiable instrument, borrowed or received by such factor or agent at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received, such offender shall be guilty of a misdemeanor, and shall be imprisoned in the penitentiarj^ for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years, or sufter such other punishment by fine or imprisonment, or by both, as the court may award." {Ih. s. 46.) " No such factor or agent shall be liable to any prosecution for depositing or pledging any such goods or merchandize, or any of the said documents, in case the same were not made a security for or subject to the payment of any greater sum of money than the amount which at the time of such deposit or pledge was justly due and owing to such factor or agent from his principal, together with the amount of any bill or bills of exchange drawn by or on account of such principal, and accepted by such factor or agent." {Ih. s. 47.) Expense. — " No banker, merchant, broker, factor, attorney, or other agent as aforesaid, shall be convicted by any evidence whatever as an ofi^ender against this act, in respect of any act done by him, if he, at any time previously to his being indict- ed for such offence, disclosed such act on oath, in consequence of the compulsory process of any court of law or equity in any action, suit or proceeding hond, fide instituted by any party aggrieved, or if he disclosed the same in an examination or deposition before any commissioner of bankruptcy." {Ih. s. 50.) By Trustees. — " If any person being a trustee of any pro- perty for the benefit, either wholly or partially, of some other person, or for- any public or charitable purpose, does, with intent to defraud, convert or appropriate the same, or any part there- of, to or for his own use <«• purposes, or does, with intent as aforesaid, otherwise dispose of or destroy such property or any part thereof, he shall be guilty of a misdemeanor." {Ih. s. 61.) THE MAGISTRATE S MANUAL. 229 " If any person, being a trustee of any money or other pro- perty for the benefit either wholly or partially of some other person, or for any public or charitable purpose, converts or appropriates the same or any part thereof to or for his own use or purposes, or otherwise wilfully disposes of the same contrary to his duty, so that such money or other property is not forth- coming, and paid or delivered when such person is ordered or decreed by the Court of Chancery or other court having juris- diction in the matter to pay the same, he shall be deemed to have converted or disposed of the same with intent to defraud within the meaning of the last preceding section of this act, but this present section is to apply to Upper Canada only." {Ih. s. 52.) By Bankebt, &o. — "If any person, being a banker, mer- chant, broker, attorney, or agent, and being entrusted for safe custody with the property of any other person, does, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use such pro- perty, or any part thereof, he shall be guilty of a misdemeanor." (/&. 8. 53.) ' > Attoeneys. — " If any person entrusted with any power of attorney for the sale or transfer of any property, does fraudu- lently sell or transfer, or otherwise convert such property or any part thereof to his own use or benefit, he shall be guilty of a misdemeanor." (Ib.s. 64.) ....... By Directors, &c. — " If any person, being a director, mem- ber, or public officer of any body corporate or public company, fraudulently takes or applies for his own use, any of the money or other property of such body corporate or public company, he shall be guilty of a misdemeanor." {Ih. s. 66.) " If any person, being a director, public officer, or manager of any body corporate or public company, does' as such receive or possess himself of any of the money or other property of such body corporate or public company, otherwise than in pay- ment of a just debt or demand, and does with intent to defraud - omit to make, or to cause or direct to be made, a full and true I'N I 230 THE magistrate's MANUAL. entr^ thereof in the books and accounts of such body coi-po- rate or public company, ho shall be guilty of a misdemeanor." (7^.8.57.) " If any director, manager, public oflScer, or member of any body corporate or public company, does, with the intent to defraud, destroy, alter, mutilate or falsify, any of the books, papers, writings or securities belonging to the body corporate or public company of which he is a director or manager, pub- lic officer or member, or makes, or concurs in the making of any false entry, or any material omission in any book of account or other document, he shall be guilty of a misdemeanor." {Ih, 8. 68.) "If any director, manager, or public officer of any body corporate or public company makes, circulates or publishes, or concurs in making, circulating or publishing, any written state- ment or adcount which he knows to be false in any material particular, with intent to deceive or defraud any member, shareholder, or creditor of such body corporate or public com- pany, or with intent to induce any person to become a share- holder or partner therein, or to entrust or advance any money or property to such body corporate or public company, or to enter into any security for the benefit thereof, he shall be guilty of a misdemeanor." {Ih. s. 59.) Punishment. — "Every person found guilty of a misdemeanor under the ten next preceding sections of this act shall be liable, at the discretion of the court, to be imprisoned in the peni- tentiary for any term not exceeding three years nor less than two years, or to suffer such other punishment, by imprisonment for any term less than two years, and with or without hard labour, or by fine, as the court shall award." {Ih. s. 61.) Evidence. — " Nothing in the eleven next preceding sedtions of this act contained shall enable or entitle any person to refuse to make a full and complete discovery by answer to any bill in Equity, or to answer any question or interrogatory in any civil proceeding in any Court of Law or Equity, or in any Court of • Bankruptcy or Insolvency; but no answer to any such bill, THE MAQISTBATE 8 MANUAL. 231 question or interrogatory shall be admissible in evidence against such person in any proceeding under the said sections." {Ih. s. 62.) Consent of Attorney-Genebal. — " No proceeding or prose- cution for any offence included in the fifty-first or fifty-second sections, but not included in any other of the next following sections of this act, shall be commenced without the sanction of Her Majesty's Attorney-General for Upper or for Lower Canada, as the case may be, or in case that office be vacant, of Her Majesty's Solicitor-General for Upper or for Lower Canada, as the case may be." * (Ih. s. 64.) If offence amounts to Laroent. — " If upon the trial of any person under the fifty-first section or under any section between the fifty-first and the present section, it appears that the offence proved amounts to larceny, he shall not by reason thereof be entitled to be acquitted of a misdemeanor under the said sec- tions." (/J. s. 66.) Jurisdiction. — " No misdemeanor against any of the sections in the last section mentioned shall be prosecuted or tried at any Court of General Quarter Sessions of the Peace." (Ih. s. 66.) Trustee, &o. — " The word * trustee ' shall in the next preceding sixteen sections mean trustee on some express trust created by some deed, will, commission, letters patent, appoint- ment to office, or instrument in writing, and shall also include the heir and personal representative of such trustee, and also all executors and administrators, and all assignees in bank- ruptcy and insolvency, under any act of this Province now or hereafter to be in force. " The word * property ' shall include every description of real and personal property, goods, raw or other materials, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods ; and such word * property,' shall also denote and include not only such real or personal property as may have been the original subject of a trust, but also any real or personal property into 232 THE MAGIBTBATB's MANUAL. which the same may have been converted or exchanged, and the proceeds thereof respectively, and anything acquired by such proceeds." (Ih. s. 67.) Fraudulent Receipts by Warehousemen. — " If the keeper of any warehouse, or any forwarder, common carrier, agent, clerk, or other person employed in or about any warehouse, or if any other factor or agent, or any clerk or other person employed in or about the business of such factor or agent, knowingly and wilfully gives to any person a writing purport- ing to be a receipt for, or an acknowledgment of any goods or other property as having been received in his warehouse, or in the warehouse in or about which he is employed, or in any other manner received by him or by the person in or about whose business he is employed, before the goods or other pro- perty named in such receipt or acknowledgment have been actually delivered to him as aforesaid, with intent to mislead, deceive, injure or defraud any person or persons whomsoever, although such person or persons may be then unknown ; or if any person knowingly and wilfully accepts or transmits or uses any such false receipt or acknowledgment, the person giving and the person accepting, transmitting or using such receipt or acknowledgment shall severally be guilty of a misdemeanor, and shall be imprisoned in the penitentiary for any term not exceeding three years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years but not less than one year." « {Ih. b. 68.) " In case any merchandize having, in the name of the owner or of any other person, been shipped or delivered to the keeper of any warehouse or to any other factor, agent or carrier, to be shipped or carried, the consignee afterwards advances any moneys or gives any negotiable security to such owner or other person, then, if after any such advance the said owner or other person for his own benefit and in violation of good faith, and without the consent of such consignee first had and obtained, makes any disposition of such merchandize different from and inconsistent with the agreement in that behalf between such owner or other person aforesaid and such con- THE MAQIBTRATE S MANUAL. 233^ signco at tlio time of or before such money being so advanced or Hucli negotiable security being so given, with the intent to deceive, defraud or injure snch consignee, the owner or other person aforesaid, and each and every other peraon knowingly and wilfully acting and assisting in making such disposition for the purpose of deceiving, defrauding or injuring such con- signee, shall be guilty of a misdemeanor, and shall be impri- soned in the penitentiary for any period not more than three years nor less than two years, or be imprisoned in some other prison or place of confinement for any term less than two years but not less than one year; but no person shall be subject to prosecution under this section who had, before making a dis- position of the merchandize as aforesaid, paid or tendered to the consignee the full amount of any advance made thereon." (/J. 8. 69.) V . " If any offence in the two last preceding sections mentioned be committed by the doing of anything in the name of any firm, company or copartnership of persons, the person by whom such thing is actually done, or who connives at the doing thereof, shall be deemed guilty of the offence, and not any other person. (/J. s. 79.) By Municipal Officers. — " All books, papers, accounts, documents, moneys and valuable securities, respectively, by any person or officer appointed or employed by or on behalf of any council, kept or received by virtue of his office or employ- ment, shall be the property of the corporation ; and in case any such person or officer refuses or fails to deliver up or pay over the same respectively to the corporation, or to any person authorized by the council to demand them, he shall be deemed guilty of a fraudulent embezzlement thereof, and may be pro- secuted and punished in the same manner as a servant fraudu- lently embezzling any chattel, money or valuable security of his master ; but notUng herein shall affect any remedy of the corporation or of any other person against the offender or his sureties, or any other party ; nor shaU the conviction of the offender be rec3ivable in evidence in any suit, at law or in equity, against liim." (Con. Stat. U. C. c. 54, s. 184.) "I i 234 THE magistrate's MANTTAL. By Eevenue Officers. — " All books, papers, accounts and documents, of what kind soever, and by whom and at what cost soever the paper and materials thereof have been procured or furnished, kept by or used, or received or taken into the possession of any officer or person employed or having been employed in the collection or management of the revenue, or in accounting for the same, by virtue of his employment as such, shall be deemed to be chattels belonging to Her Majesty ; and all moneys or valuable securities received or taken into his possession by virtue of his employment, shall be deemed to be moneys and valuable securities belonging to Her Majesty. "If any such ofScer or person at any time fraudulently embezzles any such chattel, money or valuable security (and any refusal or failure to pay over or deliver up any such chattel, money or valuable security to any officer or person who, being duly authorized by the Govemor-in-council, demands the same, shall be a fraudulent embezzlement thereof), he shall be deemed to have feloniously stolen the same, and may be indicted and proceeded against, and, being convicted thereof, shall be liable to be punished, in the same manner as any servant who, having fraudulently embezzled any chattel, money or valuable security, received or taken into his possession by virtue of his employ- ment for or on the account of his master, and being in law deemed to have feloniously stolen the same, may be indicted, proceeded against and punished. ' ' ' " Nothing herein contained shall prevent, lessen or impede any remedy which Her Majesty or any other party has against the offender or his sureties, or against any other party whom- soever ; but nevertheless the conviction of any such offender shall not be received in evidence in any suit or action, in law or in equity, against him." (Con. Stat. 0. c. 16, s. 40.) By Officers of Savings Banks. — " If any officer or servant of any such bank fraudulently embezzles any chattel, money or valuable security belonging to such bank (and any unjustifi- able refusal or failure to pay over or deliver up any such chattel, money or valuable security, on demand, to the directors of the bank, or to any person by them authorized to demand and ^y THE magistrate's MANUAL. 235 receive the same, shall he held to he a fraudulent emhezzlement thereof), he shall be deemed to have feloniously stolen the same, and may be indicted and proceeded against, and, being convicted thereof, shall be punished, in the same manner as any servant who, having fraudulently embezzled any chattel, money or valuable security received or taken into his possession by virtue of his employment for or on account of his master, and, being in law deemed to have feloniously stolen the same, may be indicted, proceeded against and punished." (Con. Stat. 0. c. 56, s. 54.) By Officers, &o., of CnARrrABLE Associations. — "If any officer, secretary, treasurer, trustee or member of any such society, obtains undue possession of, misappropriates, embezzles or withholds from the other members, officers or other persons entitled to demand and receive the same, the whole or any portion of the funds, moneys or other property of the society, and continues to withhold the same after due demand for the restoration and payment of the same has been made by some one or more members or officers duljr appointed by or on behalf of the body or society, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall, at the discre- tion of the court, be imprisoned in the penitentiary for any term not exceeding three years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years, or suffer such other punishment by fine or imprisonment, or by both, as the court may award." {Ih. c. Y4, s. 8.) " The printed or written rules of such society in force for the time being, and the appointment of any officer, secretary, treasurer, trustee, or enrolment of any member, certified under the hand of the presiding officer for the time being and the seal of the society, and the books, minutes and other documents of the society, relative to any portion of the matter then in ques- tion, may be received in evidence in any proceedings in any court of civil or criminal jurisdiction against any of the parties mentioned in the last preceding section charged with the offence therein stated." {Ih, s. 9.) ! ,4 :< hi \ E^'^ ! 236 THE MAGISTBATE's MANUAL. Statute of Feauds extended to Contracts for Goods to BE delivered at A FUTURE TIME. — " The Seventeenth section of an act passed in England in the twenty-ninth year of the reign of King Charles the Second, intituled, ' An act for the preven- tion of frauds and perjuries,' shall extend to all contracts for the sale of goods of the value of forty dollars and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured or provided, or fit or ready for delivery, or although some act may be requisite for the making or com- pleting thereof, or rendering the same fit for delivery." (Con. Stat. U. C. c. 44, s. 11.) On Indictment fob Embezzlement, Party may be convicted OF Larceny. — " If upon the trial of any person indicted for embezzlement, as a clerk or servant, or as a person employed in the capacity of clerk or servant, it be proved that he took or disposed of the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, bijf the jury may return as their ver- dict that such person is not guilty of embezzlement, but is gmlty of simple larceny, or of larceny as a clerk, servant or person employed in the capacity of a clerk or servant, as the case may be ; and thereupon such person shall be punished in the same manner as if he had been convicted on an indictment for such larceny." (Con. Stat. C. c. 99, s. 68.) On Indictment fob Larceny, Party may be convicted of Embezzlement — ^A party tried for EMBEZzLEaiENT or Larceny not to be again tried on the same facts. — " If upon the trial of any person indicted for larceny it be proved that he took or disposed of the property in question in any such manner as to amount in law to embezzlement, he shall not by reason thereof be entitled to be acquitted, but the jury may return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement ; and thereupon such person shall be punished in the same manner as if he had been convicted upon an indictment for such embezzlement; and no person so tried for embezzlement or larceny as aforesaid shall be afterwards If! THE magistrate's MANTTAI.. 237 prosecuted for larceny or embezzlement npon the same facts." (Ih, 8. 59.) EvTOENCE BESPEcnNO MoNEY. — " In caso of embezzlement, or of obtaining money or bank notes mider false pretences, it shall be sufficient to describe such money or bank notes simply as money, without allegation, so far as regards the description of the property, specifying any particular coin or bank note ; and such averment shall be sustained by proof that the offender embezzled or obtained any piece of coin, or any bank note, or any portion of the value thereof, although such piece of coin or bank note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to any other person, and such part has been returned accordingly." (lb. s. 60.) , I , ,, . EMBRACERY. Embrao' ; ^^ an attempt to influence a jury ii> their verdict, by one aiding them, or by promises, entreaties or entertainments. The giving of money to a juror after the verdict, without any preceding contract, is an offence savouring of embracery ; but not so the payment of a juror's travelling expenses. Anal- ogous to this offence is that of persuading or endeavouring to persuade a witness from attending to give evidence, which is punishable also by fine and imprisonment. It is no matter that the attempt has been imsuccessful. " Notwithstanding anything herein contained, every person who is guilty of the offence of embracery, and every juror who wilfully or corruptly consents thereto, shall be respectively pro- ceeded against by indictment or information, and be punished by fine and imprisonment, in like manner as such person and juror might have been before the passing of this act." (Con, Stat. U. C. c. 31, s. 166.) ESTREAT. :!iiV*r If the condition of a recognizance be broken, such recogniz- ance becomes forfeited ; and, being estreated, or extracted from 1, ■ 238 THE MAOISTBATE's MANUAL. the record, and ordered to be forfeited, tlie fine remains to be levied by the sherifT. EsTBEAT OP Eeoognizanoe. — " In case any person bound by recognizance for his appearance (or for whose appearance any other person has become so bound) to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, makes default, the officer of the court by whom the estreats are made out shall prepare a list in writing, specifying the name of every person so making default, and the nature of the offence in respect of which such person or his surety was so bound, together with the residence, trade, profession or calling of every such person and surety, and shall in such list distinguish the principals from the sureties, and shall state the cause, if known, why each such person did not appear, and whether by reason of the non- appearance of such person the ends of justice have been defeated or delayed." (Con. Stat. C. c. 99, s. 120.) " Every such officer shall, before any such recognizance be estreated, lay such list, if at a court of oyer and terminer or gaol delivery in any district or county, or at any of Her Majesty's superior courts of Eecords in this Province, before one of the Justices of those courts respectively ; or if at a Ses- sion of the Peace, before two of the Justices of the Peace who attended such court ; who are respectively required to examine such list, and to make such order touching the estreating or putting in process any such recognizance as appears just ; and no officer of any such court shall estreat or put in process any such recognizance without the written order of the Justice or Justices of the Peace before whom respectively such list has been laid." {Ih. s. 121.) " All fines, issues, amerciaments and forfeited recognizances, not otherwise provided for, set, imposed, lost or forfeited, by or before any court of General Quarter Sessions of the Peace, shall, within twenty-one days after the adjournment of such court, be fairly entered and extracted on a roll by the clerk of the peace, which roll shall be made out in duplicate, and shall be signed by the clerk of the peace." (Oon. Stat. Uj C, c. 117, s. 3.) THE. MAOISTBATE'S MANUAL. 239 " One of the said rolls shall remain deposited in the office of the clerk of the peace, and the other of such rolls shall, so soon as the same is prepared, be sent by the clerk of the peace, with a writ oi fieri fadaa and ca^piasy according to the form to this act annexed, to the sheriflF of the county in which such Court of Quarter Sessions was held." {Tb. b. 4.) " Such writ shall be authority to the sheriff for proceeding to the immediate levying and recovering of such fines, issues, amerciaments and forfeited recognizances, on the goods and chattels, lands and tenements of the several persons named therein, or for taking into custody the bodies of such persons respectively, in case sufficient goods and chattels, lands or tene- ments cannot be found, whereof the sums required can be made ; and every person so taken shall be lodged in the common gaol of the county imtil satisfaction be made, or until the court of General Quarter Sessions of such county, upon cause shewn by the party as hereinafter mentioned, makes an order in the case, and until such order has been fully complied with." {Ih. s. 5.) " Except in the cases of persons bound by recognizance for their appearance, or for whose appearance any other person has become bound to prosecute or give evidence, and for which pro- vision is made in the Consolidated Statute of Canada respect- ing the procedure in criminal cases, in every case of default whereby a recognizance has become forfeit ..d, if the cause of absence be made known to the court in which the party was bound to appear, the court, on consideration of such cause, and considering also whether by the non-appearance of such person the ends of justice have been defeated or delayed, may forbear to order the recognizance to be estreated ; and with respect to all recognizances estreated, and all fines imposed by any court, for the non-attendance of any juror or constable, or of any public officer bound to attend at such court, if it appears to the satisfaction of the Judge who presided at such court, or in the case of proceedings before any court of General Quarter Sessions of the Peace, if it appears to the chairman and any two of the Justices who presided at such court that the absence of the person for whose appearance any recognizance was entered into, or that the absence of any person fined for non-attendance F ui ^^1 ' ■ jKI 1 wH w m j 1 1 il i 240 THE MAGISTRATE'S MAKUAL. was owing to circnmstances which rendered such absence justi- fiable, such Judge or the chairman and Justices aforesaid may make an order directing that the sum forfeited upon such estreated recognizance, or the fine imposed in any such case as aforesaid, shall not be levied." {Ih. s. 6.) " And for such purpose the clerk of assize, or clerk of the peace, before sending to the sheriff any roll, with a wi'it oi fieri facias and capias, as directed by this act, shall submit the same to the Judge who presided at the assizes, or to the chairman who presided at the Court of Quarter Sessions, for his revision ; and such Judge, or such chairman taking to his assistance two of the Justices who presided with him at the sessions, may make a minute on the said roll and writ of any such forfeited recognizances and fines as he or they think fit to direct not to be levied ; and the sheriff shall observe the direction in such minute written upon such roll and writ, or endorsed thereon, and shall forbear accordingly to levy any such forfeited recog- nizance or fine." (Ih. &. 7.) " The Court of Queen's Bench, or Common Pleas, or Court of General Quarter Sessions, into which any writ of fieri facias and capias, issued under this act, is returnable, may inquire into the circumstances of the case, and may, in its discretion order the discharge of the whole of the forfeited recognizance or sum of money paid or to be paid in lieu or satisfaction thereof, and make such order thereon as may to such court appear just; and such order shall accordingly be a discharge .to the sheriff, or to the party, according to the circumstances of the case." {lb. s. 11.) " This act is not to affect the provisions of the Consolidated Statute of Canada respecting the procedure in criminal cases relating to the esPreat of the recognizance of any person bound for his appearance or for the appearance of any other person to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault or to articles of the peace." {Jh. s. 15.) " The words * Quarter Sessions ' include Recorders' Courts." {Ih. s. 16.) THE MAOISTBATE'8 MANUAL. EXCISE. 241 Interpbetation, — ^** The wwd * spirits,' wherever it occurs in this act means, and includes all spirits, strong waters and spirit- uous liquors of any kind ; and the words ' beer or other malt liquor,' whenever they occur in this act, mean and include beer, ale, porter, lager be^r, or other malt liquor of any kind.'* (Con. Stat a c 19, 8. 1.) DiSTiLLiNO WTTHOCT LiOENSB. — " ISTo persou. Other than a person licensed in the manner hereinafter provided, shall act as a distiller in this Province, or shall brew, manufacture, rec- tify or make therein any spirits from malt, grain, potatoes, mangel-wurzel or other vegetables, or from molasses, sugar or other saccharine matter, under a penalty of forty dollars for each day on which such offence is committed, and on pain also of forfeiting, over and above the penalty aforesaid, all spirits distilled, brewed, manufactured or made in contravention to this act, and every still, mash-tub, fermenting-tun or other vessel, machinery or utensil of any kind used by him, or in his possession or on his premises ; . -; " And for the avoidance of doubt, it is hereby declared, that any establishment or place used for the rectifying of spirits by any process, is a distillery within the meaning of this act, and must be licensed under the penalties herein provided." {Ih. 8. 2.) BsEwiNG WTTHorr LioBNSB. — " Ko person, other than a per- son licensed as hereinafter mentioned, shall brew or make any beer or other malt liquor of any kind, or act as a brewer in this province, under a penalty of forty dollars for each day on which such offence is committed, and on pain also of forfeiting every wash-tub, fermenting-vessel, machine or utensil of any kind used by him as a brewer, or for making any such beer or malt liquor as aforesaid, or adapted for making the same, and being in his possession or on his premises." (Ih. s. 3.) Name to be qs Distillebies, &o. — " Every party licensed as a distiller or as a brewer shall have his name and calling as such inscribed in legible characters, and exposed on some con- 16 ft a s % M' ^ 1^ 242 THE MAOIBTRATB'S MAN.UAL. spicuous part of the front of the building or premises in which such calling is exercised, under a penalty of twenty dollars for each day on which he exercises such calling without complying with the requirements of this section." {Ih. s. 7.) Neglecting or falsifying Entries in Books. — " Every per- son or persons licensed as a distiller or as a brewer shall keep a book or books in the form to be furnished from time to time by the Revenue Inspector, and to be open at all seasonable hours to his inspection ; and for any wilful false entry, or any wilful neglect to make any entry hereby required, the distiller or brewer shall incur a penalty of two hundred dollars ; and the Revenue Inspector may at all times demand to be shown all the stock of such grain, vegetable production or other substance aforesaid then on the premises mentioned in the license." {Ih. 8.11.) ' ^ Neglecting Accounts, &c. — "Every licensed distiller or brewer shall, at the time of rendering such account as aforesaid to the Revenue Inspector, pay over to that officer the amount of duties which by such account appear to be payable ; and if any licensed distiller or brewer refuses or neglects to render such account, or to pay over such duties as aforesaid, according to the true intent and meaning of this act, he shall by such refusal or neglect in eitl^er case incur a penalty of eighty dollars." {Ih. 8. 13.) Hindering Inspection of Premises, &c. — " Every licensed distiller or brewer shall, on being thereunto required by the Revenue Inspector, produce to that officer at any reasonable time and hour, and shall allow him to take copies and extracts from such books and accounts as are requisite to enable him to verify any account rendered as aforesaid ; and shall at all times And hours allow the inspector, or any person employed by him, free access to the buildings or premises in which such distiller or brewer exercises his calling as such, and more especially at all times when he is performing any operation therein by reason of which duty may become payable, under a penalty of eighty dollars for each neglect or refusal to comply with the require- ments of this section : ; r ;v ^ - THE MAOISTBATE 8 MANUAL. 248 » ** Except thftt no Eevenue Inspector shall require any such book or account to be produced to him elsewhere than at the place where such distiller or brewer carries on his business as such, or shall require admittance between the hours of sunset and sunrise, except when the distiller or brewer is at work, or the inspector is accompanied by a peace officer." {Ih. s. 18.) "Working wtthoxit Notice. — " No distiller or brewer shall work his distillery or brewery at any time unless he has given at least ten days' previous notice in writing to the Bevenue Inspector of his intention to work the same at such time ; and Buch notice shall not extend to a longer period than thirty days from the delivery thereof to the Revenue Inspector. " Any use made of any still, mash-tub or fermenting tun for the purpose of distillation, mashing or fermentation, shall be deemed to be a working of the distillery, and an acting as a distiller or brewer within the meaning of this act. "And if any distiller or brewer works his distillery or brewery at any time for which he has not given notice of his intention to work the same, he shall for each day on which he works such distillery or brewery incur the same penalty and forfeiture as ^ if he had worked the same without a license." (Ih. 8. 19.) Neglect, &c., to fubnish means fob Inspection. — " Every licensed distiller or brewer shall at all times furnish the Revenue Inspector or his assistant with lights, ladders, measures and other things requisite to enable him properly to examine, inspect, measure or guage any still, auxiliary vessel, mash-tub, fermenting-tun or other vessel, or grain, vegetable . or other substance or matter as aforesaid, on the premises of such distil- ler or brewer or any part of such premises, under a penalty of eighty dollars for any refusal or neglect to comply with the requirements of this section." (Ih. s. 20.) Search Warrant. — " The Revenue Inspector, or any person or persons acting under him or by his directions, having first obtained a search warrant for that purpose from some Justice of the Peace, who may grant the same on affidavit made before 244 THE KAOraTBATB'S IfANXTAL. him, and to hia Batisfaction, and stating reasonable gronnds for the issuing thereof, may, at any hour between sunrise and sun- set, enter into iEind search any house, building or place men- tioned in sueh search warrant as being one in which affidavit has been made of reasonable cau86 to suppose that an unlicensed BtiU, auxiliary vessel, mash-tub, fermenting-tuu or other vessel is illegally in use, or the provisions of this act otherwise con- travened.^ (7^.8.22.) Penalty foe nbolbotino to render Aooounts. — " Any duties payable under this act shall be recovwable at aay time after the same ought to be accounted for and paid, whetlier an account of the quantity of spirits as aforesaid on which they are payable has or has not been rendered as aforesaid ; but in the case last mentioned the party by whom such duties are payable shall incur a p«ialty equal to three times the amount of such duties, for his neglect to render an account relative to the same as hereinbefore required, in addition to any other penalties incurred by him by such neglect ; and all such duties shall be recoverabh), with full costs of suit, in favor of Her Majesty." {Ih. 8.28.) . Penalties— ^ow bbooverable.-^" The praalty or forfeiture incurred for any offence against the provisions of this act may be sued for and recovered before any two or more Justices of the Peace having jurisdiction in the place where the offence was committed, on the oath of two credible witnesses. And any such penalty may, if not forthwith paid, be levied by dis- tress and sale of the goods and chattels of the offender, under the warrant of such Justice or Justices ; or the said Justices may, in their discretion, commit the offender to the common gaol until the penalty, with the costs of the prosecution, shall be paid. And one moiety of every such pecuniary penalty or forfeiture shall belong to Her Majesty, and shall be paid and applied in the manner hereinafter provided. The other pecu- niary penalties, and the other moiety, shall belong to the person suing for the same.'* (Ih. s. 25.) Evidence.— "Any Kevenne Inspector, officer of the Customs, or other person employed in the collectioii of the revenue. THE MAGIfiTBATB'B KANUAL. 246 eliall bo a competent witneee under this act, provided he be not himself the prosecutor or a party to such suit, although he believes himself to have some expectation of advantage to him- self from the successful termination of the prosecution or suit. The credibility of his testimony is left to the court, jury, Jus- tice, or Justices before whom the suit is brougjht." {lb. s. 27.) Invalid Seizttbes.-^*' No person making any seizure under this act shall be liable to damages, if such seizure be declared not valid ; provided the court, Justice, or Justices declaring it not valid certify that there was probable cause for making it." (lb. 3. 28.) , Refubino to give Evtobnob. — " Any person refusing or neglecting to appear before any Justice or Justices, or any court, to give evidence, when summoned, concerning any alleged offence against the provisions of this act, shall, for such refusal or neglect, incur a penalty of twenty dollars, to be recovered in the manner hereinbefore provided for the recovery of other penalties of like amount." {lb. s. 29.) ■ f— EXPLOSiyrfi SUBSTANCES. iNFLicrriNQ BODILY Injuey.— " Any person who unlawfully and maliciously sends or delivers to, or causes to be taken or received by any person, any explosive substance, or any other dangerous or noxious thing, or casts or throws upon or other- wise applies to any peraon any corrosive fluid or other destruc- tive matter, with intent in any of the cases aforesaid to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, and whereby in any of the cases aforesaid any person is burnt, maimed, disfigured, or dis- abled, or receives some other grievous bodily harm, shall be guilty of felony, and shall be imprisoned in the penitentiary for the term of Jiis natural life, or for any term not less than two years, or be imprisoned in any other prison or place of con- finement for any term less than two years." (Con. Stat. C. c. 91, s. 14.) " Any person who unlawfully and maliciously, by the explo- sion of gunpowder or other explosive substance, bums, maims h. •I 246 THE MAGISTSATS'S HAI^UAL. or disfigures, disables or does any grievous bodily harm to any person, shall be guilty of felony." (Ih, e. 15.) Attempts to inflict bodily Injxjbt; — "Any person who unlawfully and maliciously causes any gunpowder or other explosive substaace to explode, or sends or delivers to, or causes to be taken or received by any person, any explosive substance or any other dangerous or noxious thing, or casts or throws at or upon, or otherwise applies to any person any cor- rosive fluid or other destructive or explosive substance, with intent in any of the cases aforesaid to bum, maim, disfigure or disable any person, or do some grievous bodily harm to any person, shall, although no bodily injury be effected, be guilty of felony." (Ik s. 16.) " Any person guilty of any felony in the two last preceding sections mentioned shall be imprisoned in the penitentiary for any term not less than seven years, or be imprisoned in any common gaol for any term less than two years." (lb. s. 17.) Possessing Explosive Substances wrrn illegal intent. — " Any person who knowingly makes or manufactures, or has in his possession, any gunpowder, explosive substance, or other dangerous or noxious thing, or any machine, engine, instru- ment, or other thing, with intent by means thereof to commit, or for the purpose of enabling any other person to commit, any offence against this act, shall be guilty of a misdemeanor, and shall be imprisoned in the common gaol for any term less than two years."* (lb. s. 18.) ' .— .*^= . Destroying Buildings. — " If any person unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, destroys, throws down, or damages the whole or any part of any dwelling-house, any person being therein, such offender shall be guilty of felony." (Con. Stat. 0. c. 93, s. 2.) " If any person unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, destroys, throws down, or damages any building, with intent to murder any * Offences antler the three last sections are now triable at Quarter Sessions or Recorder's Court JHE MAOIBTRATS^S MANUAL. 247 person, or whereby the life of any person is endangered, such offender shall be guilty of felony." (lb, s. 8.) Attempts to destroy Buildings. — " If any person unlaw- fully and maliciously places or throws on, into, upon, against, or near any building or vessel, any gunpowder or any other explosive substance, with intent to do any bodily damage to any person, or to destroy or damage any building or vessel, or any machinery, working tools, fixtures, goods or chattels, the offender shall, whether or not an explosion takes placo. and whether or not an injury be effected to ar 7 person, a* nny damage be done to any building, vessel. uad'inMrj. vv -king tools, fixtures, goods or chattels, be guilty of t'^iony, and such offender shall be imprisoned in the penitcnjlr ry foi any timti not exceeding seven years nor less than tw> ye ftri, or be im- prisoned in any common gaol for an? j^enod lei*!> ihtm ^.vvo years."* (Ih. s. 11.) Jurisdiction op Justices respecting ExPLOsrviii Bi-i^srAwc'S. — " Any Justice . of the Peace of any d'sfcrict, city, town, or place in which any gunpowder or other explosive, daiigorous, or noxious substance is suspected to be made or l:ept i<)r the purpose of being used in committing an oliuvuie tmdor tliis aet^ may, upon reasonable cause assigned upon oath by any poisoii or persons, issue a warrant under his hand and seal for sj^irch- ing in the daytime any house, shop, cellar, yard, or ot'ier building, or any vessel in which such cniipowdfti or other explosive, dangerous, or noxious subeii'ia^.a h suspc^clcd to be 80 made or kept ; and every person actitig in i).u3 i;YOC;ution of any such warrant may seize any ^^unpowderj explosive sub- stance, or any dangerous or no Jo as thing, or any machine, engine, or instrument 01 thing which he has good cause to suspect is intended fco ha used in committing or enabling any other person to commit any offence against this act, and with all convenient speed after the seizure shall remove the same to such proper place as he thinks fit, and detain the same until * Offences ander these three sections are not triable at Quarter Sessions or Becorder's Court. fi til f: 248 THE MAOISTRATX'S MANUAL^ f I .< ordered by h Judge of one of Her Maje&tjr's superior courts of criminal jurisdiction to restore it to the person wLo may claim the same." {Ih. 8.34.) " The searcher or seizer shall not be liable to any suit for such detainer, or for any loss of, or damage which may happen to the property, other than by the wilful act or neglect of him- self or of the persons whom he entrusts with the keeping thereof." {Ih. e. 35.) ' "Any gunpowder, explooive substanco, w dangerous or noxious thing, or any machine, engine, instrument, or thing intended to be used in committing or enabling any other person to commit any offence against this act, and seized and taken possession of under the provisions hereof, shall, in the event of tlie person in whose possession the same may be found, or of the owner thereof, being ccmvicted for any ofience under this act, be forfeited ; and the same shall be sold under the direction of the court before which any such person may be convicted, and the |»'Oceeds thereof shall be paid into the hands of the Heceiver General to and for the use of the province." (/J. s. 36.) ^ - i ^ , ' ' - ^ - -,■' " In every case of a summary conviction under this act, where the sum forfeited for the amount of the injury done, or imposed as a penalty by the Justice, is not paid either inmiediately afccr the conviction,, or within such pt^riod as the Justice at the time of conviction appoints, the ctMivicting Justice (when rtot otherwise specially directed) may commit the offender to the common gaol or house of correction, there to be imprisonecl only, or to bo imprisoned and kept to hard labour, for any term not exceeding two months, wliere the amount of the sura forfeited, or of the i)enalty imposed, or of both, together with tlie costs, do not exceed twenty dollars, and for any teiin not exceeding four mouths where the amount with costs exceeds twenty dollars, and does not exc-iced forty dollars, and for any term not exceeding six montlis where the amount with costs exceeds forty d<»llars ; the commitnjent to be determinable in each case upon the payment of the itmount and costs." (75. s. 37.) .. ' . THE MAQISTSATS'b MANUAL. 249 By-laws bboulatino the btobaob, *fec., of Gunpowder, in Cities, Towns and Inoobporatbd Vjijlages. — " The council of every city, town and incorporated village may respectively pass by-laws for regulating the keeping and transporting of gunpowder and other combustible or dangerous materials ; for regulating and providing the support by fees, of magazines for storing gnnpowder belonging to private parties, for compelling persons to store tlierein, for acquiring land as well within aa without the munitdpality for the purpose of erecting powder magazines, and for selb'ng and conveying such land when no longer required therefor." (Con. Stat. U. C. e. 64, s. 294.) In Police Villages. — *' The trustees of every police village shall exeimte and enforce therein the I'egulations following : " No person shall keep or have gunpowder for sale, except in boxes of copper, tin or lead, under a penalty of five dollars for the first ofi'ence, and ten dollars for every subsequent offeniie. " No person shall sell gmipowder, or permit gunpowder to be sold, in his house, storehouse or shop, outhouse or other building at night, under a jwnalty of ten dollars for the first ofi'ence, and twenty dollars for e\^ry 8ubsec|uent offence." (10, s. 312.) .' EXTRADITION. ExTBADrnoN OF FuarrivE Criminals from the BKrrisn North American Provinces. — " If any person against whom a warrant has been issued by the Chief Justice of the Queen's Bench, or by any other magistrate having competent authority in any of Her Majesty's Provinces or Governments in North America respectively, for any felony or other crime of a high nature, escapes into or is found in any part of Upper Canada, any Justice of the Peace of the county, city or place where such peraiw resides or is supposed to be, may, upon due proof being made of tlie hand-writing of the magistrate who issued the warrant, endorse his the said Justice's name thereon, and such warrant so endorseil shall be a sufiicient authority to all persons to whom such warrant was originally directed, and also 1 250 fHB MAGISTBATB'S MANUAL. to all constables of the county, city or place where such war- rant has been so endorsed, to execute the same, by apprehending the person against whom such warrant has been granted, and to convey him into the province from which such warrant was originally issued, to be dealt with according to law." (Con. Stat. U. C. C. 95, 8. 1.) ;...■'; : i. ..>'!-.. " Before any such warrant is so endorsed the person apply- ing for its endorsement shall enter into a recognizance with sufficient sureties, in a sum not less than two hundred dollars, to indemnify this province, and every part thereof, against any expense that may arise or accrue from the apprehension of such offender, and also to bring the said offender or cause him to be brought to trial ; and the magistrate to whom such application is made is hereby authorized to take such recognizance." (Ih. 8. 2.) r .-( >: Op Offenders fbom the Uniied States. — Con. Stat, of Canada, c. 89, provides for the apprehension and surrender to the United States by Canada, and to Canada by the United States, of all persons charged with any of the following crimes, viz. : murder, assault with intent to commit murder, piracy, arson, robbery, forgery, or the utterance of forged paper. The first, second and third sections of the last' mentioned act wqre repealed, and the following substituted therefor — ' ' For s. 1 : " Upon complaint made under oath or affirmation (in cases where affirmations can be legally taken instead of oaths), charging any person found within the limits of this province with having committed within the jurisdiction of the United States of America any of the crimes enumerated or provided for by the said treaty, it shall be lawful for any Judge of any of Her Majesty's Superior Courts in this pro- vince, or any Judge of a County Court in Upper Canada, or any Eecorder of a city in this province, or any Police Magis- trate or Stipendiary Magistrate in this province, or any In- spector and Superintendent of Police empowered to act as a Justice of the Peace in Lower Canada, to issue his warrant for the apprehension of. the person so charged, that he may be brought before such Judge or other officer ; and upon the said u THE MAQISTRATE'S MANUAL. 251 person being bronght before him under the said warrant, it , shall be lawfiil for such Judge or other officer to examine upon oath any person or persons touching the truth of such charge, and upon such evidence as according to the laws of this Pro- vince would justify the apprehension and ^.ommittal for trial of the person so accused, if the crime of wiiich he shall be so accused had been committed herein, it shaU be lawful for such Judge or other officer to issue his warrant for the commitment of the person so charged to the proper gaol, there to remain until surrendered, according to the stipulation of the said treaty, or until discharged according to law; and the said Judge or other officer shall thereupon forthwith transmit or deliver to the Governor a copy of all the testimony taken before him, that a warrant may issue, upon the requisition of the United States for the surrender of such person, pursuant to the said treaty." For 8. 2 : " In every case of complaint as aforesaid, and of a hearing upon the return of a warrant of arrest, copies of the depositions upon which the original warrant may have been granted in the United States, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the crimi- nality of the person so apprehended." For s. 3 : " It shall be lawful for the Governor, upon a requi- sition made as aforesaid by the United States, by warrant under his hand and seal, to order the person so committed to be deliv- ered to the person or persons authorized to receive such person in the name and on behalf of the United States, to be tried for the crime of which such person stands accused, and such person shall be delivered up accordingly ; and the person or persons authorized as aforesaid may hold such person in custody, and take h}m to the territories of the said United States, pursuant to the said treaty ; and if the person so accused escapes out of any custody to which he stands committed, or to which he has been delivered as aforesaid, such person may be retaken in the same manner as any person accused of uny crime against the laws of this province may be retaken upon escape." 352 THB MAOISTBATE'b MANUAL. S. 4 gives power to the Superior Courts, after the prisoner has been in custody two months under such a, commitment, upon application shewing that notice has heeo. given to the Provincial Secretary, to discharge the prisoner out of custody, unless sufficient cause be shown wh^ such discharge should not be made.* FELONY. What rr is. — ^Felony includes the higher class of offences, as murder, rape, burglary, arson, and may be either capital or not. Capital felonies are punishable with death ; felonies not capital, by imprisonment in the provincial penitentiary for life, or for any period not less than two years, or in any other prison for any period less than two years. Private persons may arrest felons by a warrant from a Jus- tice of the Peace, or even by their own authority, and are bound to assist a peace officer in taking any felon into custody. All offences which do not amoimt to felony are misdemeanors ; as perjury, battery, libel, conspiracy, attempts and solicitations to commit felonies, and various injuries to property from a spuit of wantonness or revenge. In case? of felony the accused has the right to challenge peremptorily twenty of the jury, without assigning any cause : this right dpes not exist on trial for ca^es of misdemeanor. * i •,: FENCES.' ,, ,. , ,- ,r Bepaib of Division Fenok-^" Each of the parties occupying adjoining tracts of land shall make, keep up and repair a just proportion of the division or line fence on the line dividing such tracts, and equally on either side thereof." (Con. Stat. U. C, c. 67, 8. 1.) What coNsraruTES a Lawful Fence, — " Any fence coming within the meaning of ^ lawful fence m any by-law of the *-i> >« .»■.. I I . . , I II) ■ ■ ■ I a^^^pMi r I I ■■■■■......■■ >- I ■■ ■— ■ . I I" 1 .1 - -■ •■ * The commitment in a case u^der this act must be special, as no form has be^n given by the a^ See " Extradition ComnUtment" ' ^ THE MAGISTRATES MAX DAL. 253 municipal council In that behalf 1b to be consideted a lawful fence; and when no euch by-law exists^ any fence viewers^ when called upon, jure to exerdee their own judgment, and decide what they consider to be a iaw^ fence.** {Ih. s. 2.) Division Fewces wot to be ftEBiovED wrr hotjt Notice. — " The owner of the whole or part of a division or line fence which forms part of the fence enclosing the occupied or improved land of another person, shall not take down or remove any part of such fence : 1. Without giving at least twelve months' previous notice of his intention to the occupier or owner of such adjacent enclosure. 3. Kor imless sudi last-mentioned owner or occupier, after demand made upon him in writing by the owner of such fence, refuses to pay therefor a sum to be deter- mined, as provided in the next sub-section. 3. " Nor, if such owner or occupier will pay to the owner of such fence, or of any part thereof, such sUmi as three fence viewers, or a majority of them, in writing, determine to be the reasonable value thereof:" (/J. s. 3.) V . Cost op Division Fence.—" When any land which has laid unenclosed or in common is afterwards enclosed or improved, the occupier shall pay to the owner of the division or line fence standing upon the divisional line between such land and the enclosure of any other occupier or proprietor, a just pro- portion of the value thereof." (/J. s. 4.) Water Fences. — " When a water fence, or a fence running into the water, is necessary, the same is also to be made in equal parts, unless the parties otherwise agree." {Ih. s. 5.) Lands divided by a !Riveb or Cbeek.— " When lands bel(mg- ing to or occupied by different persons are divided from each other by any river, brook, pond or creek, which of itself is not a sufflcient barrier, and it is impracticable to fence upon the true boundary line, the fence shall be set up on one side of the river, brook, pond, or creek, or partly on one side and partly on the other, as may be just." {Ih. s. 6.) ^ , 254 THE magistrate's MANUAL. DiTOHEs AND "Watbb-ooubsbs. — " When it is the joint interest of parties resident to open a ditch or water-course for the pur- pose of letting oflf surplus water from swamps or low miry lands, in order to enable the owners or occupiers thereof to cultivate or improve the same, such several parties shall open a just and fair proportion of such ditch or water-course according to their several interests." (Ih. s. 7.) • ' ' Fence Viewers. — " Three fence viewers of the municipality, or a majority of them, may decide all disputes between the owners or occupants of adjoining lands, or land so divided or alleged to be divided as aforesaid, in regard to their respective rights and liabilities under this act, and also all disputes res- pecting, the opening, making or paying for ditches or water- courses under this act." {Ih. s. 8.) Award in WRmNO. — " Every determination or award of fence viewers shall be in writing, signed by such of them as concur therein, and they shall transmit the same (or a certified copy thereof) to the clerk of the municipality, and shall also deliver a copy to every party requiring the same, and such determination or award shall be binding on the parties thereto." {Ih. s. 9.) '- , . ., , . ,. . . . Disputes. — " When the dispute is as to the commencement or extent of the part of the fence to be made or repaired by either party, or as to the opening of a ditch or water-course, or as to the part, width, depth, or extent that an^i person should open or make, either party may by writing notify the viewers, and name in the notice for the investigation thereof the time and place of meeting, and shall also notify the other party to appear at the same time and place." {Ih. s. 10.) Fence Viewers to ATTEin>, &c. — " On receiving such notice the fence viewers shall attend at the time and place named, and after being satisfied that the other party has been also duly notified, they shall examine the premises and hear the parties and their witnesses if demanded, and according to the subject matter of the reference shall decide the commencement or THE magistrate's MANTTAL. 255 extent of the part of the fence which either claims to have made or repaired, or refuses to make or repair, or shall divide or apportion the ditch or water-course among the several parties, having due regard to the interests of each in the opening thereof, and shall fully determine the matters in dis- pute." {lb. 9. 11.) The fence viewers on any reference as to a ditch or water- course what length each party shall open, should they find one of the parties not sufficiently interested in the opening to make him liable for- any portion, but that it is necessary for the other party that it should be continued across such tract, they may award it to be done at the expense of the other ; after such award the last mentioned party may open the ditch or course across the tract at his own cost without being a trespasser. (Seeift. s. 12.) : , > Review of Awaed. — ^When by reason of a material change of circumstances in respect to the improvement and occupation of adjacent lots or parcels of land, an. award previously made under this act ceases, in the opinion of either of the parties, to be equitable, such party may obtain another award of the fence viewers by a like mode of proceeding ; and if the fence viewers called upon to make a subsequent award find no reason for making an alteration, the whole cost of the reference shall be borne by the party at whose instance it has been made." {Ih. 8.13.) " ' 7,''i'"' Refusal of one Party. — " If any party neglects or reftises on demand made in writing as aforesaid to open or make and keep open his share of the ditch or water-course, allotted or awarded by the fence viewers within the time allowed by them, any of the other parties may,- after completing his own share or proportion, open the share or proportion allotted to the party in default, and shall be entitled to recover not exceeding forty cents per rod from the party so in default." {Ih. s. 14.) " If, after an award of fence viewers, or after being required by a demand in writing by the party occupying the adjoining tract, or a tract separated therefrom bj ' ri'^er, pond or creek, a si riJl 266 THE MAOtSTBATK'S MANUAL. yartiy in the occupation of any tract of land neglects or refuses^ for a period of tMrty daye, to make or repair (as the case may be) his proportion of the division or line fence between his tract and such adjoining or separated tract, or if the party making the demand neglects or refuses for the like period to make or repair his own proportion of the fence, either party, after first completing his own proportion, may make or repair in a sub- stantial manner and of good sound materials the whole or any part of the fence which ought to have been made or repaired by the other party, and may recover from him the value thereof." {lb. s. 15.) ^ . , How AMotnw SHALL BE ASOEBTAnfED. — To ascertain the amount payable by any person who, under the authority of this act, makes or repairs a fence, or makes, opens or keeps open any ditch or water-course which another person should have done, and to enforce the payment of such amount, the follow- ing proceedings shall be taken : 1. ^* Any of the persons interested may ap^dy to a Justice of the Peace residing within the municipality or township in which any such fence is situated, and if there be no such Justice residing therein, then to any Justice of the Peace residing in any adjacent municipality or township, and there- upon such Justice shall issue a summons under his hand and seal, directed by name to three fence viewers of the municipal- ity in which the fence is situated, requiring them to attend at the place and on the day and hour therein mentioned, to view such fence and to appraise the same. ' ' = • 2. *^ The Justice shall at the same time issue a summons to the party so having neglected or refused to make or repair his proportion thereof (who shall thenceforth be considered the defendant in the case), requiring him to appear at the same time and place, to shew cause why the party claiming payment (who shall thenceforth be considered the plaintiff in the case) should not recover the same. 3. ^* The fence viewers shall be personally served with the summons at least four days before the day named for their attendance. ^^ • i^ i ; • ■ THE magistrate's MANUAL. 257 4. " If either party desires to procure the attendance of any person to give evidence before the fence viewers, the Justice shall, upon the application of such party, issue a summons to such witness or witnesses to attend before the fence viewers at the time and place mentioned in the summons to the fence viewers. 6. " The fence viewers when met at the time and place appointed shall, whenever desired by either party, or whenever they themselves think it proper, and may administer an oath to any witness, which oath is to be in the following form, * You do solemnly swear that you will true answer make to * such questions as may be asked of you by either of the fence * viewers now present, touching the matters which they are * now to examine and determine. So help you God.' 6. " The fence viewers, or any two of them being present, shall, after having duly examined the fence and received evi- dence, determine whether the plaintiff is entitled to recover any and what sum from the defendant. 7. " In case the commencement or extent of the part of the division or line fence which each should make or repair had not been previously determined by the award of fence viewers named in the summons, or any two of them, they shall deter- mine the same ; and if they determine that the plaintiff is enti- tled to recover from the defendant, they shall also state what distance of fence the defendant should have made or repaired. 8. " The fence viewers, if required by either party before they report, shall give to such party a copy of their determine- tion. 9. " The fence viewers shall report their determination in. writing, under their hands, to the Justice who issued the sum- mons, and such determination shall be finaL 10. " The Justice to whom the determination of the fence viewers is returned, shall transmit the same to the clerk of the division court having jurisdiction over that part of the munici- pality, and shall certify and transmit a copy thereof to the clerk of the municipality, to be entered in the book in which the municipal proceedings are recorded. t •; .vr* 17 Hj S,! 1(1 fi 258 THE magistrate's MANUAL. 11. " After the expiration of forty days from the time of the deter^nination, the clerk of the division court shall issue an execution against the goods and chattels of the defendant in the same manner as if the party in whose favour the determi- nation has been made had recovered judgment in the division court for the sum which the fence viewers have determined him entitled to receive with costs." {Ih. s. 16.) Fees. — " The following fees, and no more, may be received under this act, by the persons mentioned, that is to say : " To the Justice. — For summons to fence viewers, twenty-five cents ; for subpoena, which may contain three names, twenty- five cents ; for transmitting copy offence viewers' determination to division court and to clerk of the municipality, twenty-five cents. ' ' '^"^: *f' '• ■• \ •■ ^-'^ "^ii ■' " To Fence Viewers. — One dollar per day each ; if less than half a day employed, fifty cents. :, " To the Bailiff or Constable employed. — For serving sum- mons or subpoena, twenty cents; mileage, per mile, six and two-thirds cents. ,, " To Witness^ per day each, fifty cents." (Ih. s. 17.) Disbursements. — "Upon the party in whose favor the deter, mination of the fence viewers has been made making an affi- davit, which the clerk of the division court may administer, that such fees have been duly paid and disbursed to the persons entitled thereto, the clerk shall include the amount thereof in the execution, and when collected shall pay over the same to the said party." (lb. 8. IS.) .; . . s^ ' i ., ;., ,< By-Laws. — " The council of every township, city, town or ' incorporated village, may pass by-laws : "'For settling the height and description of lawful fences ; " For regulating the height, extent and description of lawful division fences; and for determining how the costs thereof shall be apportioned; and for directing that any amount so apportioned shall be recovered in the same manner as penalties not provided for under this act ; but until such by-laws be made, the act respecting line-fences and water-courses shall continue applicable to the municipality." ^ ► < . ; » ^.. . ^ THE MAOISTRATE^S MANUAL. 259 FERRIES — OFFENCES RELATING TO. Interfering with Licensed Ferryman. — "If any person unlawfully interferes with the rights of any licensed ferryman, by taking, carrying or conveying, at any such ferry, across the river or stream on which it is situate, any person, cattle, car- riage or wares in any boat, vessel or other craft, for hire, gain, reward, profit or hope thereof, or unlawfully does any other act or thing to lessen the tolls and profits of any lessee of the Crown of any such ferry, such offender, upon conviction thereof before a Justice of the Peace, shall forfeit and pay such sum of money, not exceeding twenty dollars, as the Justice may direct, which sum shall be paid to the party aggrieved, except where he has been examined in proof of the offence, in which case the money shall be applied and accounted for in the same manner as any penalty imposed for a breach of the peace." (Con. Stat. U. C, c. 46, s. 10.) .. , . Parties may keep Boats pob their omtn use. — " Any person may keep at any such ferry a boat, vessel or other craft for his own private use, or may use for the accommodation of himself or his employer, his own or his employer's boat, vessel or craft, to cross the stream on which such ferry is situate ; but such privilege shall in no wise be used to take, carry or convey any other persons, for hire, gain, reward, or profit, or hope thereof, or directly or indirectly to enable any of such other persons to evade the payment of tolls at such ferry." (TJ. s. 11.) CoMMriMENT in DEFAULT. — " lu ftasc the sum forfeited be not paid immediately after conviction, the convicting Justice may commit the offender to the common gaol of the county, there to be imprisoned for a term not exceeding two months, unless the forfeiture and the costs be sooner paid." (/5. s. 12.) Appeal. — "Any party aggrieved by any conviction or decision under this act may appeal from such conviction or decision in the maimer and under the conditions of the act respecting appeals in cases of summary conviction." ■ {Ih. s. 13. See Appeals, ante, p. 136.) I I ml h If t I 1' 111 260 THE magistrate's HANTTAL. Evidence of Title. — " On the trial of any offender against this act, every license heretofore issued or issued under this act shall be primd facie evidence of title to the ferry." {lb. 8. 14.) FIRES. In CmES, Towns and Inoorpobated Villages. — "The council of every (dty, town and incorporated village may res- pectively pass by-laws for the following purposes : " For appointing fire-wardens, fire-engineers and firemen, and promoting, establishing and regulating fire companies, hook-and-ladder companies, and property-saving companies ; " For providing medals or rewards for persons who distin- guish themselves at fires ; and for granting pecuniary aid or otherwise assisting the widows and orphans of persons who are killed by accidents at such fires ; .'"' ■ '" ■ " For preventing or regulating the use of fire or lights in stables, cabinet makers' shops, carpenters' shops^ and combusti- ble places; ... " For preventing or regulating the carrying on of manufac- tories or trades dangerous in causing or promoting fire ; . , " For preventing, and for removing or regulating the con- struction of any chimney, flue, fire-place, stove, oven, boiler or other apparatus or thing which may be dangerous in causing or promoting fire ; .^ ^ " For regulating the construction of chimneys as to dimen- sions and otherwise ; and for enforcing the proper cleaning of the same ; " For regulating the mode of removal and — r, j " For authorizing appointed officers to enter rl all reasonahlo times upon any property subject to the regulations of the Council, in order to ascertain whether such regulations are obeyed, or to enforce or carry into effect the same ; *^ For making regulations for suppressing fires, and for pull- ing down or demolishing adjacent houses or other erections, when necessary to prevent the spreading of fire ; *^ For regulating the conduct, auii enforcing the asgistanco of, the inhabitants present at Qres ; and for the preservation of property at fires." (Con. Stat. U. 0. c. 64, s. 294.) In Police Villages. — " The trustees of every police village shall execute and enforce therein the regulations following : " Every proprietor of a house more than one story high shall place and keep a ladder on the roof of such house near to or against the principal chimney thereof, and another ladder reach- ing from the ground to the roof of such house, under a penalty of one dollar for every omission ; and a further penalty of two dollars for every week such omission continues ; " Every householder shall provide himself with two buckets fit for carrying water in case of accident by fire, under a pen- alty of one dollar for each bucket deficient. 3. " No person shall build any oven or furnace unless it adjoins and is properly connected with a chimney of stone or brick at least three feet higher than the house or building in which the oven or furnace is built, under a penalty not exceeding two dollars for non-compliance. . ,, i, 4. " No person shall pass a stove-pipe through a wooden or lathed partition or fioor, unless there is a space of fom- inches between the pipe and the wood-work nearest thereto ; and the pipe of every stove shall be inserted into a chimney ; and there shall be at least ten inches in the clear between any stove and any lathed partition or wood work, under a penalty of two dollars. 5. " No person shall enter a mill, barn, outhouse or stable, with a lighted candle or lamp unless well enclosed in a lantern, 262 THE magistrate's MANtTAL. nor with a lighted pipe or cigar, or with fire noj properly secured, under a penalty of one dollar. 6. " No person shall light or have a fire in a wooden house or outhouse unless such fire is in a brick or stone chimney, or in a stove of iron or other metal, properly secured, under a penalty of one dollar. 7. " No person shall carry fire or cause fire to be carried into or through any street, lane, yard, garden or other place, with- out having such fire confined in some copper, iron or tin vessel, under a penalty of one dollar for the first offence, and of two dollars for every subsequent oflfence. 8. " No person shall light a fire in a street, lane or public place, under a penalty of one dollar. * 9. " No person shall place hay, straw or fodder, or cause the same to be placed, in a dwelling house, under a penalty of one dollar for the first offence, and of five dollars for every week the hay, straw or fodder is suffered to remain there. 10. " No person, except a manufacturer of pot or pearl ashes, ^hall keep or deposit ashes or cinders in any wooden vessel, box or thing not lined or doubled with sheet-iron, tin or copper, so as to prevent danger of fire from such ashes or cinders, under a penalty of one dollar. 11. " No person shall place or deposit any quick or unslaked lime in contact with any wood of a house, outhouse or other building, under a penalty of one dollar, and a further penalty of two dollars a day until the lime has been removed, or secured to the satisfaction of the inspecting trustee, so as to prevent any danger of fire. 12. " No person shall erect a furnace for making charcoal of wood under a penalty of five dollars." {lb. s. 312.) FISH AND OIL — OFFENCES RELATING TO. Penalty on Inspector. — " If any inspector brands any cask, keg or box of any description of fish or oil mentioned in this act, the contents of which he has not inspected according to the true intent and meaning of this act, or if he knowingly permits any other person or persons to use his brands, he shall. THE MAGISTBATE'S MANUAL. 263 on being thereof convicted incur a penalty of four dollars for each cask, keg or box so branded contrary to the provisions of this act, and shall forthwith be removed from office." (Con. Stat. C. 0.60^8.16.) Fraudulently Branding. — " If any person other than an inspector appointed under this act wilfully effaces or obliterates, or causes to be effaced or obliterated, from any cask, keg or box, having undergone inspection, all or any of the brands or marks thereupon imprinted or branded by any inspector, or fraudulently impresses or brands upon any cask, keg or box, any of the brands or marks by this act required to be branded on casks, kegs or boxes containing fish or oil so inspected as aforesaid, or empties any cask, keg or box already branded, in order to put other fish or oil therein for sale or exportation, such person shall on conviction for each offence incur a penalty not exceeding eighty dollars." {Ih. s. 17.) Penalty on Inspector Trading. — " No inspector appointed under this act shall trade in, buy or sell directly or indirectly, or otherwise, than for the consumption of himself and family, fish or oil of any kind or description to which this act relates, under the penalty of one hundred dollars for each act of con- travention or disobedience of the provisions of this section, and on pain of being dismissed from office." {Ih. s. 18.) Distribution of Fine. — " One moiety of the pecuniary fines and of the forfeitures under this act shall belong to Iler Majesty, and the other moiety to the complainant." {Ih. 8. 19.) LiMFiATiON OP Time. — " All penalties incurred under this act must be sued for within three months from the commission of the offence." {Ih. s. 20.) Imprisonment for Non-payment. — " Any offender who does not forthwith pay the fine and costs he has been condemned to pay shall be committed to gaol for a term not less than one month nor more than six months, at the disci etion of the ma- gistrate before whom he has been convicted.*' {Ih. s. 21.) M ni 264 THE MAGISTBATE's MANUAL. ( < I iu ■.■•'.m Recovery of Penalty. — " Erery penalty or forfeitTire im- posed by this act, or the regulations to be made under it, may be recovered on complaint before the superintendent of fisheries, or any stipendiary or other magistrate, in a sumlhary manner, and the proceedings and the costs to be recovered shall be the same as are provided by law in either section of the province in other cases where summary jurisdiction is given to magis- trates." {Ih. s. 22.) FISH — OFFENCES RELATING TO. Rights of Fishermen. — "All subjects of Her Majesty, but none other, may, for the purposes of trade and commerce, 1. " Take bait and fish in any of the harbours, roadsteads, bays, creeks or rivers of the Province ; 2. " Land anywhere on public property for the purpose of salting, curing and drying fish ; 3. " Cut wood there for the purpose of repairing stages, dry- ing places, flakes, hurdles, cook rooms, and other purposes necessary or useful for preparing or dealing with fish ; 4. " Take possession of any unoccupied portion of the beach which may be necessary for curing fish, and hold the same so long as the same shall not have been abandoned during twelve consecutive months; 6. " Any such subject having occupied any such portion of the beach, may during th^ year next after he shall have been twelve months without occupying it, demand personally or by his attorney the value of his flakes, stages and other property, of which a new occupant shall have taken possession ; and 6. " Carry away his buildings and improvements after the close of the fishing season, after having so demanded the same from the new occupant." (Con. Stat. C c. 62, s. 3.) "But nothing contained in ilie third section shall affect private property, or prevent the Crown from disposing or taking possession of any public land or beach so occupied for fishing purposes." {Ih. s. 4.) " The Governor in Council may cause to be set apart any river or other water for the natural or artificial propagation of salmon trout or other fish." {Ih. s. 5.) THE magistrate's MANTAL. 265 " The Governor in Council may grant permission to fish in rivers within the King's posts." (Ih. s. 6.) Throwing ballast, offal, &c., in any river, harbour, or road- stead in which fishing is carried on, or within three miles of the coast of the mainland, prohibited under a fine of not more than eighty dollars ; but such offal may be buried on the land at a distance of not less than an acre from the beach. (See ih. s. 7.) " No one shall anchor near the shore so as to impede the throwing and hauling of seines or the setting of standing nets.'' (75. s. 8.) "No one shall set standing nets in such a manner as to impede the throwing or hauling of seines." {Ih. s. 9.) Navigation not to be impeded. (See ih. s. 10.) Penalty for contravening sections 8, 9 & 10, fine not over twenty dollars, and offender to be also liable for damages." (See ih. s. 11.) Penalty for removing fishing stakes, fine not to exceed twenty dollars. (See ih. s. 12.) Fishing tackle is exempt from seizure except for fines and penalties under this act. (See ih. s. 13.) Penalty for deserting fishing service, fine not exceeding forty dollars,, or imprisonment for not more than one month. (See ih. s. 14.) For seducing away persons engaged therein, a like penalty of forty dollars, or imprisonment. (See ih. s. 15.) A fisherman is to have a first lien on his employer's property in preference to any other creditor, for securing his wages. (See ih. s. 16.) Penalty of not more than one hundred dollars nor less than ten dollars, with forfeiture of vessel and apparatus, for disturb- ing oyster beds, except at times permitted by the Commissioner of Crown Lands. (See ih. s. 17.) No one shall use mackerel, herring nor capin seines for cod- fishing, and meshes of cod seines not to be under three inches in extension in the arms, and two and a half inches in the bottom, under penalty, and on pain of forfeiture of the seine. (See ih. s. 18.) m i ; 266 THE MAGISTBATB'8 MANFAL. ^■^■1 \M Nets not to be used in BurLngton Bay nor in Dundas Marsh. (See ih. s. 19.) Period for Salmon Fishing limited, exception ap to Fly Fishing. — " Ko one shall fish for, catch or kill salmon in any way whatever between the first day of August and the first day of March in any year ; except only that it shall be lawful to fish for salmon with a rod or line in the manner known as fly-surface-fishing, from the first of March to the first of Sep- tember in any year." {Ih. s. 20.) " No one shall use any net or take salmon in any way what- ever at any salmon-leap, or where any artificial salmon-pass shall have been constructed, nor in any pools or ponds where salmon are wont to spawn." (lb. s. 21.) ' ^ ; ". ■ . Obstructing Main Channel op Rivers. — "Whoever ob- structs the main channel or course of any river, either by placing therein nets or fishing apparatus of any kind, or any obstacle of any kind whatever, for the purpose of taking salmon or any other species of fish, shall thereby incur for each ofience a fine not exceeding twenty dollars, and the forfeiture of his fishing apparatus ; and in no case shall the said channel or course so left open be less than one-third of the whole breadth of such river." (75.8.22.) FisHWAYs TO BE ATTACHED TO Da.m8. — " The owucr of any dam or slide where fish may ascend, shall, for the purpose of affording a passage to the fish, attach and maintain to each dam or slide a fishway of such form and dimensions as shall be determined by the superintendent of fisheries, under a penalty of four dollars for each day on which he shall fail so to do, after two months' notice by the superintendent. (lb. s. 23.) Penalty. — " Any salmon taken in contravention of the twentieth section of this act shall subject all persons concerned in the breach of the said section, whether the actual transgres- sors or accessories, to a penalty of not more than forty dollars nor less than twenty dollars, together with the forfeiture of the fish, canoe, boat or other vessel in which the fish may have been placed, or to imprisonment for a period of not more than six months nor less than three months." (lb. s. 24.) THE MAOISTEATe's MANUAL 267 Killing Speckled Teout. — "No one shall kill any kind of speckled trout, in any way whatever, between the twentieth October and the first of April in any year, nor shall any speckled trout be killed at any time by means of nets or seines in any inland lake, river or stream in Upper Canada." {Ih. 8.28.) Time fob catching Salmon Trout, &c. — "Except in the Lakes Huron and Superior, no one shall catch salmon trout between the fifteenth day of November and the first day of February." (Jh. s. 30.) " Except as aforesasd, no one shall catch maskinonge, pick- erel nor black bass, between the fifteenth of March and the fifteenth day of May." {Ih. s. 31.) Fish not to be sold in the Close Season. — " No one shall buy, sell or have in possession any salmon, salmon trout, nor any kind of trout, bass, nor maskinonge taken in contravention of this ^cX ; and any fish so taken may be declared forfeited by any magistrate whomsoever ; and any person so found in pos- session of any of the aforementioned fish or of any part or portion thereof, shall be held to have obtained the same in violation of the provisioife of this act, except only upon legal proof to the contrary, which proof shall devolve wholly upon the accused." (/5. s. 32.) Fish Pounds. — " No one shall construct any fish pound in any river." {Ih. s. 33.) Lime and Dbugs not to be used to catch Fish. — " No one shall throw lime or any chemical substance or drug into any water frequented by any one of the kind of fish mentioned in this act, and any person found guilty of having thrown lime or any other chemical substance or drug in such waters shall be subjected to a penalty of not less than twenty dollars, and not more than forty dollars for each offence." {Ih. s. 36.) Penalties. — "Every penalty or forfeiture imposed by this act, or the regulations to be made under it, may be recovered on complaint before the superintendent of fisheries or any stipendiary or other magistrate, in a summary manner, upon i\ laanMiw 268 THE MAOISTBATE's MANUAL. the oath of one credible witness ; and the proceedings and the costs to be recovered shall be the same as provided by law in other cases where snmmary jurisdiction is given to magistrates, except in so far as it may be otherwise herein provided." {lb. s. 37.) " In every case of contravention of this act, or of the regula- tions to be made imder it, for which no other penalty is pro- vided, the offender shall incur a fine of not less than eight dollars nor more than twenty dollars." (lb. s. 38.) Limitation op Peosecjutions. — " All penalties incurred under this act must be sued for within twelve months from the com- mission of the offence." (lb. s. 39.) Committal for Non-payment. — " Any offender who does not forthwith pay the fine and costs he has been condemned to pay shall be committed to g^ol for a term of not less than one month, nor more than six months, at the discretion of the magistrate before whom the offender has been convicted." (/&. s. 40.) / Delay between Service and Return of Summons. — " There shall be not less than three days bq^ween the service and the return of the summons to any defendant for the first five leagues, and one day more for each additional five leagues of the distance between the place at which the summons is dated and the place where it is served." (lb. b. 41.) Conviction on view. — " The superintendent of fisheries or any stipendiary or other magistrate may convict upon view of any of the offifences punishable under the provisions of this act." (/J. B.42.) Defendant not Resident in the Province. — "Wlien the defendant is not a resident in the Province, and it is expedient to proceed against him without delay, the superintendent of fisheries or any stipetidiaiy or other magistrate may, upon complaint, issue a summons returnable immediately to compel the defendant to appear before him without delay, or he may issue a warrant for the apprehension of such defendant simul- taneously with the issue of the summons." (lb. e. 43.) THE MAOISTBATE'S MAltCTAL. 269 Search. — " The superintendent of fisheries or any stipen- diary or other magistrate may search, or grant a warrant to have searched) any vessel or place where he may have cause to believe that any fish taken in contravention of this act may have been concealed." {Ih. s. 44.) Applications of Fines and FoEFErruREs. — " One moiety of the pecuniary^ fines and of the forfeitures under this act, or under the regulations to be made by virtue thereof, shall belong to Her Majesty, and the other moiety to the complainant." {II. s. 45.) "Whiie-Fish. — " Any person who uses or employs, or causes to be used or employed, any seine or other nets of a greater length than fifty fathoms for the taking of white-fish in any of the rivers Detroit, St. Clair or Niagara, within Upper Canada, shall for every such offence forfeit the sum of five hundred dollars." (/J. s. 47.) " Any person found fishing for white-fish in either of the said rivers within Upper Canada, with seines, gill nets or other nets, on the first day of the week, called Sunday, shall forfeit for every such offence the sum of two hundred dollars." {Ih. s. 48.) " Any person who attempts to divert the natural progress or running of the white-fish within Upper Canada, by shingling or other device, shall forfeit for every such offence the sum of five hundred dollars, or be imprisoned not exceeding three months, at the discretion of the court." {Ih. s. 49.) "All forfeitures incurred under the last three preceding sections of this act may be recovered by action of debt, with costs of suit, before any court having competent jurisdiction ; one moiety thereof to the person who sues for the same, and the other moiety to be paid into the hands of the Keceiver General." {Fb. s. 50.) POEM OF COMPLAINT. ' • Upper Canada, county {or district) of . This day of , 18 — . To J. S., superintendent of fisheries (or a Justice of the Peace for the said county or district). 5 I Vi P iv -nS: '.V IMP ti^4'a •i^; iiii,!li^ t ■ ^M fH 270 THE magistrate's MANUAL. A. B., of , complains that 0. D., of , hath (ttate the offence "briefly in any intelligible terms, with the time and place at which it was committed), in contravention of the Fisheries Act: Wherefore the complain- ant prays that judgment may be given against the said 0. D. as by the said act provided. (Signature) A. B. SUMMONS TO DEFENDANT. TTpper Canada, county (or district) of . ToO. D., of ^,&c. «» Whereas complaint hath (this day) been made before me that you (state the offence in the words of the complaint, or to like effect), in contravention of the Fisheries Act ; therefore you are hereby commanded to come before me at on the day of . at o'clock in the , to answer the said complaint, and to be dealt vrith according to law. Witness my hand and seal, this day , 18 — , J. S., superintendent of fisheries for Upper Canada (or Justice of the Peace for — — , as the case may be). [t. s.] •^v SUBPCENA. Upper Canada, county (or district) of . ToE. F., of , &c Whereas complaint has been made before me that 0. D. did (state the offence as in the summons), and I am informed that you can give material evidence in the case ; therefore you are commanded to appear before me at on the day of , at o'clock in the -, to testify what you know concerning the matter of the said complaint Witness my hand and seal, this day of — 18 — . J. S., superintendent, &c. (as in summons.) [t. s.] FORM OF CONVICTION. Upper Canada, county (or district) of . Be it remembered, that on this day of — said county (or district), C. D. of , is convicted -18-, before at in the me, for that he did (stating the offence briefly, and the time and place when and where committed), in contravention of the Fisheries Act ; and I adjudge the said C. D. to forfeit (and pay) the sum of (or mention the thing forfeited under this act), to be applied according to law, and also to pr « to A. B. (the complainant) the sum of for costs. (If the penalty be not forthwith paid, add) And the said C. D, having failed to pay the said penalty and costs forthwith after the said conviction, I adjudge him to be committed to and imprisoned in the common gaol of the county (or district) of for the period of . Witness my hand and seal, this day of 18—. J. S. (cw in summons), [h. s.] THE magistrate's MANUAL. 271 WARRANT OF COMMITMENT. Upper Canada, county (or district) of . . > •- ' To the constables and peace officers of the county {or district) of , and the keeper of the common gaol of the said county (or district) at . Whereas 0. D. of was on the day of . 18 — , convicted before me for that he, &c. (a« in conviction), and I did tnereupon adjudge tkie said 0. D. to forfeit and pay to A. B„ &c. (cu in conviction), and whereas the said C. D. has not paid the said penalty or forfeiture and costs ; there- fore I command you the said constables and peace officers, or any of you, to convey the said 0. D. to the common gaol for the of at •, and deliver him to the keeper thereof with this warrant ; and I commana you the said keeper of the said gaol to receive the said C. D. into your custody and keep him safely imprisoned in the said gaol for the space of , and for so doing this shall be your sufficient warrant. Witness my hand and seal, this day of , 18 — . J. S. {as in summons), [l. a.] If ''^* i •vy FORCIBLE ENTRY AND DETAINER. The statute 6 Eic. II., st. 1, c, 7, enacts as follows : — " And also the King defendeth, that none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law ; and in such case not with strong hand, nor with multitude of people, but only with peaceable and easy manner ; and if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by im- prisonment of his body, and thereof ransomed at the King's wiU." 21 Jac. I. c. 15, enacts, that such Judges, Justices, or Justice of the Peace, as by reason of any act or acts of Parliament now in force are authorized and enabled, upcn enquiry, to give restitution of possession unto tenants of any estate or freehold of their lands or tenements, which shall be entered upon with force, or from them withholden by force, shall, by reason of this present act have the like and the same authority and ability from henceforth (upon indictment for such forcible entries or forcible holdings before them duly found) to give like restitution of possession unto tenants by term of years, tenants by copy of court, guardians by knight's service, ten- ants by .'ilegitj statute-merchant or staple, of lands or tenements 272 THE MAGISTBATE's MAKUAL. by them so holden, which shall be entered upon by force, or holden from them by force.* . 1 I FOREIGN ENLISTMENT. Entering into the service of any foreign state without the Queen's consent, or contracting with it any engagement which subjects the party to an influence or conbxjl inconsistent with the allegiance due to his sovereign, such as receiving a pension from a foreign prince, without the Queen's leave, is at common law a high misdemeanor, and punishable accordingly. Such also is disobedience to the Queen's command to a subject abroad to return home, or to her writ of ne exeat regno to a sub- ject at home, commanding him to continue there. And, says Hawkins, it is so high an offence to prefer the interest of a foreign prince to our own, that any act is criminal which may but incline a man so to do, as to receive a pension from a foreign prince without the leave of our sovereign. * The prosecutor most prove : 1. That ho was in possession of the premises at the time of the forcible entry ; and proof that he was in the actual occupation of the premises, or receiving the rents and profits, is sufiicient jwtm4 facie evi- dence thereof. But it is immaterial whether the party in actual possession be in rightful possession or not., and it is no excuse that the defendant had a right of entry, if his entry was so violent es to cause bodily fear to the occupant. 2. The prosecutor must prove the forcible entry. An entry by breaking doors, windows, (6c., whether anybody be in the house or not, is a forcible entry within the statute. So is an entry where personal violence is done or offered to the party in possession, or to his family or servants, or any one keeping posses- sion for nlm. But an entry by an open window, or by opening the door with a key, or by a mere trick, such as by etticing the owner out and shutting the door on him ; or if effected by threats to destroy the owner's goods merely, and not by threats of personal violence, is not a forcible entry. A mere trespass cannot be punished as a forcible entry ; there must be such force or show of force as is calculated to present resistance. If, however, while the owntr is out of the house the defendant forcibly withhold from returning to it, and in the meantime send persons to take peaceable possession, this is said to be a forcible entry. Where the party entering has in fact no right of entry, all in his company are equally guilty; out if he have such right, men those only who use or threaten violence, or who actually abet those who do, are guilty. A wife may be guilty of a forcible entry into her husband's house, and other persons also, if they assist her in the force, though her entry in itself is lawful. 8. It is necessary to prove the expulsion, and that the prosecutor is still kept out of possession, merely for the purpose of obtaining restitution of the premises ; but it is no part of the offence deaoribed by the statute, which mentions a ford- ble entry merely. THE magistrate's MANUAL. 273 Disobedience to letters from the King to a subject, com- manding him to return from beyond the seas, or to his writ of Tie exeat regno, or proclamation commanding the subject to stay at homo, is a high misprision and contempt ; and if the subject neglects to return from beyond the seas when commanded, his lands shall be seized till he does return. And, in the words of Mr. Hawkins, it is a high offence for any subject to deny the King that assistance for the good of the public, either in his councils or wars, which by the luw he is bound to give him. The serving or procuring others to serve foreign states was provided against by several statutes prior to the passing of the 59 Geo. III. c 69 ; and the statute 3 Jac. I. c. 4, s. 18, made it a felony for any subject to serve any foreign state ; and in construction of that act, it was held, that if a party go out of the realm with intent to serve a foreign state, although there be no service in fact, or if a party do actually so serve, though he did not go abroad for that purpose, but on some other occasion, it would be within the act. The offence is now, how- ever, by the 59 Geo. III. c. 69, made a misdemeanor only. The 59 Geo. III. c. 69, repeals stats. 9 Geo. II. c. 30, ; 29 Geo. II. c. 17, and the Irish Acts, 11 Geo. II. and 19 Geo. II. Sect. 2 enacts, that "If any natural-bom subject of his Majesty, his heirs and successors, without the leave or license of his Majesty, his heirs or successors, for that purpose first had and obtained, under the sign manual of his Majesty, his heirs or successors, or signified by order in council, or by proclama- tion of his Majesty, his heirs or successors, shall take or accept, or shall agree to take or accept, any military commission, or shall otherwise enter into the military service as a commissioned or non-commissioned oflicer, or shall enlist or enter himself to enlist, or shall agree to enlist, or to enter himself to serve as a soldier, or to be employed, or shall serve in any warlike or military operation in the service of, or for, or under or in aid of any foreign prince, state, potentate, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province or people, 18 '\ i * IMAGE EVALUATION TEST TARGET (MT-3) K^ e ^^^ 4^ ^ 4, 1.0 l£i|21 125 [If 1^ 12.0 IS lllr^ ""'^ I PhotDgra]iiic Sciences Corporation ■1>^ 4 <> ^. 23 WIST MAIN STRUT WnSTIR.N.Y. M5M (716)S72-4S03 ;\ 274 THE BiAGISTBATE'S MANUAL. either as an oflScer or soldier, or in any other military capacity ; or if any natural-bom subject of his Majesty shall, without such leave or license as aforesaid, accept, or agree to take or accept, any commission, warrant, or appointment as an officer, or shall enlist or enter himself, or shall agree to enlist or enter himself to serve as a sailor or marine, or to be employed or engaged, or shall serve in and on board any ship or vessel of war, or in and on board any ship or vessel used or fitted out, or equipped, or intended to be used for any warlike purpose, in the service of, or for, or under or in aid of any foreign power, prince, state, potentate, colony, province, or part of any pro- vince or people, or of any person or persons exercising or assuming to exercise the powers of government in or over any foreign country; colony, province, or part of any province or people ; or if any natural-bom subject of his Majesty shall, without such leave and license as aforesaid, engage, contract or agree to go, or shall go, to any foreign state, country, colony, province, or part of any province, or to any place beyond the seas, with an intent or in order to enlist or enter himself to serve, or with an intent to serve in any warlike or military operation whatever, whether by land or by sea, in the sei*vice of, or for, or under or in aid of any foreign prince, state, poten- tate, colony, province, or part of any province or people, or in the service of, or for, or under or in aid of any person or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province or people, either as an oflicer or a soldier, or in any other military capacity, or as an officer, or sailor or marine, in any such ship or vessel as aforesaid, although no enlisting money or pay or reward shall have been or shall be in any or either of the cases aforesaid actually paid to or received by him, or by any person to or for his use or benefit ; or if any person whatever within the United Kingdom of Great B> itain and Ireland, or in any part of his Majesty's dominions else- where, or in any country, colony, settlement, island, or place belonging to or subject to his Majesty, shall hire, retain, engage or procure, or shall attempt or endeavour to hire, retain, engage or procure, any person or persons whatever to enlist, or to enter THE MAGISTRATE'S MANUAL. 275 or engage to enlist, or to serve or to be employed in any such service or employment as aforesaid, as an officer, soldier, sailor or marine, either in land or sea service, for or under or in aid of any foreign prince, state, potentate, colony, province or part of any province or people, or for, or under or in aid of any person or persons exercising or assuming to exercise any powers of government as aforesaid, or to go or to agree to go or embark from any part of his Majesty's dominion, for the pur- pose or with intent to be so enlisted, entered, engaged or employed as aforesaid, whether any enlisting money, pay or reward shall have been or shall be actually given or received or not ; in any or either of such cases, every person so offend- ing shall be guilty of a misdemeanor, and upon being convicted thereof, upon any information or indictment, shall be punisha- ble by fine and imprisonment, or either of them, at tlie discre- tion of the court before which such oflender shall be convicted." FORGERY. Of the Great Seal. — "If any person forges or counterfeits or utters, knowing the same to be forged or counterfeited, the great seal of this province, or of the late province of Upper Canada, or of the late province of Lower Canada, such offender shall be guilty of felony, and shall be imprisoned in the peni- tentiary for any time not less than two years," (Con. Stat. C. c. 94, s. 1.) Of the Governor's Seal-at-Arms. — " If any person forges or counterfeits or utters, knowing the same to be forged or counterfeited, the seal-at-arms of the Governor to any commis- sion, grant, appointment, license, warrant, order or other instru- ment of a public nature, appertaining or relating to the affairs of this province, or to any instrument purporting to be a com- mission, grant, appointment, license, warrant, order or other instrument of a public nature appertaining or relating to the affairs of this province, or forges any public register or book, appointed by law to be made or kept, or wilfully certifies or utters any writing as and for a true copy of such public register or book| or of any entry therein, knowing such writing to be i 276 THE MAGISTRATE S MANUAL. counterfeit or false, snch offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not more than fourteen years nor less than five years." (lb. s. 2.) Of Debentures. — " If any person forges or alters, or offers, disposes of or puts off, knowing the same to be forged or altered, any debenture issued under the authority of any act of the legislatures of the late provinces of Upper Canada or of Lower Canada, or of any act of the legislature of this province, or any stamp or endorsement on or assignment of any such deben- ture, or any scrip issued by the Commissioner of Crown Lands for the time being, in lieu of or in satisfaction of any right or claim to a grant of land from the Grown in this province, or any part thereof, or any will, testament, codicil or testamentary writing, or any license of marriage, or any bank note, or any bill of exchange, or any promissory note for the payment of money, or any endorsement on, or any assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant or order for the payment of money, with intent in any of the cases aforesaid to defraud any person whatsoever, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not more than ten years nor less than four years." {Ih. s. 3.) Punishment of Death superseded. — " In case by any law at any time in force in any part of this province before this act takes effect, any person was made liable to the punishment of death for forging or altering, or for offering, altering, dis- posing of or putting off, knowing the same to be forged or altered, any instrument or writing, designated in such law by any special name or description, and if such instrument or writing, however designated, be in law a will, testament, codicil or testamentary writing, or a bill of exchange, or a promissory note for the payment of money, or an endorsement on or assignment of a bill of exchange, or promissory note for the payment of money, within the true intent and meaning of this act, in every such case the person forging or altering such instrument or writing, or offering, uttering, disposing of or THE MAOISTBATE^S MANUAL. 277 putting off sucli instrument or writing, knowing the same to be forged or altered, may be indicted as an offender under this act, and be punished in the manner provided in the last pre- ceding section hereof." {Ih. s. 4.) Of Letters Pateni'. — " If any person forges or alters, or in any way publishes, puts off or utters as true, knowing the same to be forged or altered, any copy of letters patent, or of the enrolment or enregistration of letters patent, or of any certifi- cate thereof, made or given, or purporting to be made or given by virtue of any statute of Upper Canada or of Lower Canada, or of this province, every such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not more than seven years nor less than three years, or be imprison- ed in any common gaol for any term less than two years." {Ih. s. 5.) Op Tbansfebs of Stock. — " If any person forges, or alters, or utters, knowing the same to be forged or altered, any trans- fer of any share or interest of, or in the capital stock of any body corporate, company or society, established by charter or act of Parliament in any part of this province, or forges or alters, or utters, knowing the same to be forged or altered, any power of attorney or other authority to transfer any share or interest of or in any such capital stock, or receives any dividend or profit payable in respect of any such share or interest, or demands or endeavours to have any such share or interest transferred, or to receive any dividend or profit payable in res- pect thereof, by virtue of any such forged or altered power of attorney or other authority, knowing the same to be forged or altered, with intent in any of the several cases aforesaid to defraud any person whatsoever ; or if any person falsely and deceitfully personates any owner of any such share, interest, dividend or profit as aforesaid, and thereby transfers any share or interest belonging to such owner, or thereby receives any money due to such owner, as if such person were the true an,d lawful owner, every such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not more than ten years, nor less than four years." {Ih. s. 6.) I r . » !• 278 niE magistrate's manual. False personation of Stookiiolder. — " If any person falsely and deceitfully personates the owner of any share or interest of or in tlie capital stock of any body corporate, company or society, established by charter or act of Parliament in any part of this province, or any owner of any dividend or profit paya- ble in respect of any such share or interest as aforesaid, or any person having a claim for a grant of land from the Crown in this province, or for any scrip or other payment or allowance in lieu of such grant of land, and thereby endeavours to trans- fer any share or interest belonging to any such owner, or to receive any money due to any such owner, as if such offender were the true and lawful owner, or to obtain any such grant of land, or any serii) or other payment or allowance in lieu thereof, as if such offender were entitled thereto, such offender shall be guilty of felony, and shall be imprisoned in the peni- tentiary, for any term not more than seven years nor less than three years, or be imprisoned in any common gaol for any term less than two years." {Ih. s. 7.) Of AVitness's Name. — " If any person forges the name or hand^n-iting of any person as or purporting to be a witness attesting the execution of any power of attorney or other authority to transfer any share or interest of or in any capital stock in this act before meftitioned, or receives any dividend or profit payable in respect of any such share or interest, or assigns or transfers any right to obtain a grant from the Crown of lands in this Province, or to obtain any scrip or other payment or allowance in lieu of such grant of land, or utters any such power of attorney or other authority, with the name or hand- writing of any pei^son forged thereon as an attesting witness, knowing the same to be forged, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than two years nor more than seven years, or be confined in any common gaol for any term less than two years." (n. s. 8.) I Of Notarial Acts, &o. — "If any person, with intent to defraud any person, forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, any THE magistrate's MANUAL. 279 notarial act or instniment or copy purporting to be an antlien- ticated copy thereof, proch verbal of any surveyor, or like copy thereof, any judicial record, writ, order, return, exhibit, report, certificate or other document or entry made or filed in any suit or proceeding civil or cruninal in any court of justice, or with any officer of such court, or any copy or paper purport- ing to be an exemplification or authenticated or certified copy of any such judicial record, writ, order, return, exliibit, report, certificate, or other such document or entry as aforesaid, or any deed, bond, writing obligatory, assignment of a right to land, certificate of registration or afiidavit of execution, or any me- morial of any deed, will or other instrument, which may at the time this act takes effect or thereafter be registered by virtue of any statute in force in this province or any part thereof, or any acquittance or receipt either for money or for goods, or any accountable receipt either for money or goods, as for any note, bill or other security for payment of money, or any warrant, order or request for the delivery or transfer of goods, or for the delivery of any note, bill or other security for the payment of money, or any contract, promise or agreement, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than four years nor more than ten years." {Ih. s. 9.) Falsely Personating Bail, &c. — " If any person knowingly and wilfully, before any court, judge or other person lawfully authorized to take any recognizance or bail, acknowledges any recognizance or bail in the name of any other person not privy or consenting to the same, whether such recognizance or bail in either case be or be not filed, or if any person in the name of any other person not privy or consenting to the same, acknowledges any cognovit actionem or judgment, or any deed to be registered or enrolled, every such offender shall be guilty of felony, and shall be confined in the penitentiary for any term not less than four years nor more than ten years." {lb. 8. 10.) It Possessing Forged Instruments. — " If any person without lawful excuse, the proof whereof shall lie upon the partv ilfli H * 1 ■fij 280 TUE MAQISTBATB'b MANUAL. accused, purchases or receives from any other person, or has in his custody or possession, any forged bank-note or blank bank- note, knowing the same to be forged, such offender shall be guilty of felony, and shall be confined in the penitentiary for any term not less than two years nor more than seven years, or be imprisoned in any common gaol for any term less than two years." {Ih. s. 11.) , Enoravino op Bills, &o. — " If any person engraves or in any wise makes upon any plate whatever, or upon any wood, stone or other material, any bank-note, bill of exchange or promissory note for the payment of money, purporting to be the bank-note, bill or promissory note, or part of the bank-note, bill or promissory note of any person or persons, body corporate or company carrying on the business of bankers in this pro- vince, without the authority of such person or persons, body corporate or company, the proof of which shall lie on the party accused ; or if any person engraves or makes upon any plate whatever, or upon any woocj, stone or other material, any word or words resembling or apparently intended to resemble any subscription subjoined to any bank-note, bill of exchange or promissory note for the payment of money, issued by any such person or persons, body corporate or company carrying on the business of bankers, without such authority to be proved as aforesaid ; or if any person without such authority, to be proved as aforesaid, uses, or without lawful excuse, to be proved by the party accused, knowingly has in his custody or possession any plate, wood, stone or other material upon which any such bank-note, bill of exchange or promissory note, or part thereof, or any word or words resembling or apparently intended to resemble such subscription, has been engraved or made ; or if any person without such authority, to be proved as aforesaid, knowingly offers, utters, disposes of or puts off, or without lawful excuse, to be proved as aforesaid, knowingly has in liis custody or possession, any paper upon which any part of such bank-note, bill of exchange or promissory note, or any word or words resembling or apparently intended to resemble any such subscription, has been made or printed, every such offender THE MAOISTKATE^S MANUAL. 281 shall bo guilty of felony, and shall be imprisoned in the peni- tentiary for any term not less than two years nor more than seven years, or be imprisoned in any common gaol for any term less than two years." {lb. s. 12.) Of Foreign Bills, &o. — " If any person forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, any bill of exchange, promissory note, under- taking or order for payment of money, in whatever language or languages the same may be expressed, and whether the same is or is not under seal, purporting to be the bill, note, under- taking or order of any foreign prince or state, or of any minister or officer in the service of any foreign prince or state, or of any body corporate or body of the like nature constituted or recog- nized by any foreign prince or state, or of any person or com- pany of persons resident in any country not under the dominion of Her Majesty ; or if any person engraves or in any wise makes upon any plate whatever, or upon any wood, stone or other material, any bill of exchange, promissory note, under- taking or order for payment of money, in whatever language or languages the same may be expressed, and whether the same is or is not intended to be under seal, purporting to be the bill, note, undertaking or order of any foreign prince or state, or of any minister or officer in the service of any foreign prince or state, or of any body corporate or body of tiio like nature con- stituted or recognized by any foreign prince c»r state, or of any person or company of persons resident in any country not under the dominion of Her Majesty, without the authority of such foreign prince or state, minister or officer, body corporate or body of the like nature, person or company of persons, the proof of which authority shall lie on the person accused ; or if any person without such authority, to be proved as aforesaid, uses, or without lawful excuse, to be proved by the party accused, knowingly has in his custody or possession any plate, stone, wood or other material upon which any such foreign bill, note, undertaking or order, or any part thereof, has been engraved or made ; or if any person without such authority, to be proved as aforesaid, knowingly utters, disposes of, or puts off, or without lawful excuse, to be proved as aforesaid, knowingly '■111 k 'i\ 1 i ji 282 THE magistrate's manual. has in liis custody or possession any paper upon whicli any part of any such foreign bill, note, undertaking or order has been made or printed, every such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than two years nor more than seven years, or be imprisoned in any common gaol for any term less than two years." {Ih, 8. 13.) Of Passenger Tickets, &c. — "If any person knowingly forges or utters, knowing the same to be forged, any ticket or order for a free or paid passage on any railway, or on any steam or other vessel, with intent to defraud any other pereon, such offender shall be guilty of felony, and shall bo imprisoned in the penitentiary for a period not exceeding three years nor less than two years." (/J. s. 14.) - • Of Postage Stamps, &o. — " If any person forges, counter- feits or imitates any postage stamp issued or used under the authority of the act respecting the Provincial Post Office, or by or under the authority of the government or proper author- ity of the United Kingdom, or of any British North American Province, or of any foreign country, or knowingly uses any such forged, counterfeit or imitated stamp, or engraves, cuts, sinks or makes an,y plate, die or other thing whereby to forge, counterfeit or imitate such stamp, or any part or portion thereof, except by the permission in writing of the Provincial Postmaster General, or of some officer or person who, under the regulations to be made in that behalf, may lawfully grant such permission, or has possession of any such plate, die or other thing, without such permission, or as aforesaid, forges, counterfeits or unlaw- fully imitates, uses or affixes to or upon any letter or packet, any stamp, signature, initials, or other mark or sign, purporting that such letter or packet ought to pass free of postage, or at a lower rate of postage, or that the postage thereon or any part thereof hath been pre-paid, or ought to be paid by or charged to any person, department or party whomsoever, such offender shall be guilty of felony, and be imprisoned in the penitentiary for life." (/J. s. 15.) Ill THE MA0I8TRATK 8 MANUAL. 283 5 Eliz. c. 14. — "Every person convicted of any offence whicli wa8 subjected by any act or acts to the same pains or penalties as are imposed by the act of Queen Elizabeth, inti- tuled, An Act against Forgers of False Deeds and Writings^ for any of the offences first enumerated in that act, shall be guilty of felony, and shall in lieu of such pains and penalties be confined in the penitentiary for any term not less than two years nor more than seven years, or be imprisoned in any com- mon gaol for any term less than two years." {Th. s. 16.) ' Forgeries abroad. — " "Where the forging or altering any matter whatsoever, or the offering, uttering, disposing of, or putting off any writing or matter whatsoever, knowing the same to be forged or altered, is in this act expressed to be an offence, if any person in this province forges, or alters, or offers, utters, disposes of, or puts off, knowing the same to be forged or altered, any such writing or matter, in whatsoever place or country out of this province, whether under the dominion of Her Majesty or not, such writing or matters may purport to be made, or may have been made, and in whatever language or languages the same or any part thereof may be expressed, such person and every person aiding, abetting or counselling such pei-son, shall be deemed an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the writing or matter had purported to be made or had been made in this province." (/J. s. 17.) " If any person in this province forges, or alters, or offers, utters, disposes of, or puts off, knowing the same to be forged or altered, any bill of exchange, or any promissory note for the payment of money, or any endorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any deed, bond, writing obligatory for the payment of money (whether such deed, bond or writing obligatory has been made only for the payment of money or for the payment of money together with some other purpose) in whatever place or country out of this province, whether under the dominion of Her Majesty or not, the money payable or secured by such bill, note, undertaking, warrant, order, deed, bond or writing obli- ■11 J! 284 THE JCAOISTIUTE's MANUAL. gatory, may bo or may purport to be payable, and in whateter language or languages the same respectively or any part thereof may be expressed, and whether such bill, note, undertaking, warrant or order be or bo not under seal, such person and every' person aiding, abetting or counselling such person, shall be deemed an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the money had been payable or had purported to be payable in this province." (Ih. s. 18.) Uttering, &o.. Forged Instruments. — " When by any law in force in any part of this province any person falsely making, forging, counterfeiting, erasing or altering any matter whatso- ever, or uttering, publishing, offering, disposing of, putting away or making use of any matter whatsoever, knowing the same to be falsely made, forged, counterfeited, erased or altered, or any person deijianding, or endeavouring to receive or have any thing, or doing or causing to be done any act upon or by virtue of any matter whatsoever, knowing such matter to be falsely made, forged, counterfeited, erased or altered, or where by any law in force as aforesaid any person falsely personating another, or falsely acknowledging any thing in the name of another, or falsely representing any other person than the real party to be such party, or demanding or receiving any money or other thing by virtue of any probate or letters of administration, knowing the will on which such probate was obtained to have been false or forged, or knowing such probate or letters of administration to have been obtained by means of any false oath or false affirm- ation, would be guilty of felony, and be liable to any other punishment than is provided by this act ; then and in each of the several cases aforesaid, if any person is convicted of any such felony as hereinbefqre mentioned, or of aiding, abetting, counselling. or procuring the commission thereof, and no other providon is made for the punishment of any such offender under any other clause of this act, such offender shall be imprisoned in the penitentiary for any term not more than ten years nor less than two, or be imprisoned in any conmion gaol for any term less than two years ; but nothing herein contained shall THE magistrate's manual. 285 affect or alter any law relating to any coin lawfully current in this province." (Ih. s. 19.) • Of Trade-mabks, &o. — "Any person who knowingly and wilfully, and with intent to deceive and defraud, forges or counterfeits, or causes or procures to be forged or counterfeited, any private mark, token, stamp or label of any manufacturer, mechanic or other person being a resident of this province, upon or with respect to any goods, wares or merchandize what- soever, shall be guilty of felony, and shall be punished by imprisonment in the common ^aol for a term at the discretion of the court, but less than two years." {Ih. s. 20.) " Any person who vends any goods, wares or merchandize, having thereon any forged or counterfeited private mark, token, stamp or label, purporting to be the private mark, token, stamp or label of any other person, being a resident of this province, knowing the same at the time of the purchase thereof by him to be forged or counterfeited, shall be guilty of a misdemeanor, and shall be punished by imprisonment in the common gaol for a term not exceeding six months, or by a fine of not more than one hundred dollars, or by both, in the discretion of the court." {Ih. B. 21.) Trial op Offenders and Accessories. — " If any person commits any offence against this act, or commits any offence of forging or altering any matter whatsoever, or of offering, uttering, disposing of or putting off any matter whatsoever, knowing the same to be forged or altered, whether the offence in any such case be indictable at common law or by virtue of any statute, the offence of every such offender may be dealt with, indicted, tried and punished, and be laid and charged to have been committed in any district, county or place in which he has been apprehended, or may be in custody, as if his offence had been actually committed in that district, county or place ; and every accessory before or after such offence, if the same be a felony, and every person aiding, abetting or counselling the commission of any such offence, if the same be a misdemeanor, maybe dealt with, indicted, tried and punished, and his offence i.ij. h-^ mm 286 THE MAGISTRATE'S MANUAL. laid and charged to have been committed in any district, county or place in which the principal offender may be tried." {11. 8. 22.) " In the case of every felony punishable under this act, every principal in the second degree and every accessory before the fact shall be punishable in the same manner as the principal in the first degree ; and every accessory after the fact to any felony punishable under this act shall, on conviction, be im- prisoned in any common gaol for any term less than two years." {Ih. s. 23.) " In all informations or indictments for forging, altering, or in any manner uttering any instrument or writing, it shall not be necessary to set forth any copy or fac simile thereof, but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing tlie same." {Ih. s. 24.) " "When the having any matter in the custody or possession of any person is in this act expressed to be an offence, if any person has any such matter in his personal custody or possession, or knowingly or wilfully has any such matter in any dwelling- house or other building, lodging, apartment, field or other place, open or enclosed, whether belonging to or occupied by himself or not, and whether such matter is for his own use or for the use or benefit of another, every such person shall be deemed to have such matter in his custody or possession within the meaning of this act ; and where the committing of any offence with intent to defraud any person whatsoever is made punish- able by this act, in every such case the word * person ' shall throughout this act be deemed to include Her Majesty or any foreign prince or state, or any body corporate, or any company or society of persons not incorporated, or any person or number of persons whatsoever who may be intended to be defrauded by such offence, whether such body corporate, society, person or number of persons reside or carry on business in this province or elsewhere, and whether under the dominion of Her Majesty or not ; and it shall be sufficient in any indictment to name one person only of such company, society or number or persons, and to allege the offence to have been committed with intent THE MAGISTRATE 8 MANUAL. 287 '• ' 'J I to defraud the person so named and another or others, as the case may be." {Ih. s. 25.) " In all prosecutions by indictment or information against any person or persons for any offence punishable under this act, no person shall be deemed an incompetent witness in support of the prosecution by reason of any interest which such person may have or be supposed to have in respect of any deed, writing, instrument or other matter given in evidence on the trial of such indictment or information ; But the evidence of any person or persons so interested, or supposed to be inter- ested, shall in no case be deemed suflBcient to sustain a convic- tion for any of the said offences, unless the same is corroborated by other legal evidence in support cf such prosecution." (Ih. 8. 2G.) " If any person who, before the first of January, one thousand eight hundred and forty-eight, having committed any offence against any act repealed by the statute 10, 11 Vic. c. 9, relating to forgery, or thereby declared to be no longer in force, has been convicted of the same since the said first of January, one thousand eight hundred and forty-eight, or after this act takes effect be convicted of the same, and if such offence was punish- able with death, in every such case the person convicted of such offence shall not suffer the punishment of death, but shall in lieu thereof be confined in the penitentiary for any term not less than two nor more than ten years, or be imprisoned in any common gaol for any term less than two years." {Ih. s. 27.) Of Certain Documents, &c. — " Any person who forges any seal, stamp or signature of any document mentioned or referred to in the act respecting witnesses ahd evidence, or who tenders in evidence any such document with a false or counterfeit seal, stamp or signature thereto, knowing the same to be false or counterfeit, is guilty of felony, and shall be imprisoned in the penitentiary for any term not exceeding ten years, or be im- prisoned in any common gaol or house of correction with hard labor for any term not exceeding one year nor less than two months." (Con. Stat. U. C. c. 101, s. 1.) ■ill 4 ^ ] 288 THE magistrate's MANUAL. "Whenever any such document has been admitted in evi- dence, the court or the person who has admitted the same may, at the request of any party against whom the same has been admitted in evidence, direct that the same shall be impounded and be kept in the custody of some officer of the court or other proper person, for such period and subject to such conditions as to the said court or person seems meet." {Ih. s. 2.) Of Seals of Division Courts. — " Any person who forges the seal or any process of any division court, or serves or enforces any such forged process, knowing the same to be forged, or who delivers, or causes to be delivered to any person, any paper falsely purporting to be a copy of any summons or other pro- cess of any such court, knowing the same to be false, or who acts or professes to act under any false color or pretence of the process of any such court, is guilty of felony." {Ih. s. 3.) Of Signatures to Affidavtis. — "Any person who forges any signature to any affidavit made or taken under the Com- mon Law Procedure Act, or who uses or tenders in evidence any such affidavit with any false, forged or counterfeited sig- nature thereto, knowing the same to be false, forged or counter- feit, is guilty of felony, and shall be imprisoned at hard labor in the penitentiary for any term not more than ten years nor less than four years." {Ih. fi. 4.) Of Debentures, &o. — " Any person who forges or counter- feits any debenture issued under the authority of any act providing for the accommodation of the superior courts, or any stamp, endorsement or writing thereon or therein, or who demands to have such counterfeited debenture, or any deben- ture with such counterfeited writing or other endorsement thereon or therein, exchanged for money by any person, liable or required to exchange the same, or by any other person, knowing the debenture so tendered, or the endorsement or writing thereon or therein to be so forged or counterfeited, with intent to defraud Her Majesty or the person appointed to pay the same, or any other person or persons, body or bodies politic, or corporate, is guilty of felony, and shall suffer such punish- seal, o] terfeit with a THE MAOISTBATE's MANUAL. 289 In. ment as may be adjudged in that behalf, not exceeding im- prisonment in the penitentiary for seven years." {Ih. s. 5.) Of Ceetifioates in eeseryed cases. — "Any person who forges, or alters, or offers, utters, disposes of, or puts off, know- ing the same to be forged or altered, any certificate, or copy, certified under the act respecting the reservation of points of law in criminal cases, tried at any assizes, quarter sessions, or recorder's court, by a chief justice or senior judge, or by a clerk of assize, clerk of the peace or recorder's clerk, with intent to cause any person tq be discharged from custody, or otherwise to prevent the course of justice, is guilty of felony, and shall be imprisoned in the penitentiary for any period not more than seven nor less than three years." {Ih. s. 6.) Venue. — " Every person charged with committing any felony under this act may be dealt with, indicted, tried, and, if con- victed, be sentenced, and the offence may be laid and charged to have been committed in the county or place in which he may be apprehended or is in custody." {Ih. s. 7.) Accessories. — " Every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed in any county or place in which the principal offender may be tried." {Ih. s. 8.) " Of Railway Debentures, &o. — "The offence of forging any debentures, or a coupon of any debenture, issued under the authority of this act, or of the special act, or of uttering any such debenture or coupon, or of being accessory before or after the fact to any such offence, shall be deemed felony, and be punished accordingly." (Con. Stat C. c Q% s, 121.) Op Seals, &o., of Subrogate Courts. — " If any person forges the signature of any judge or registrar of a surrogate court, or of any commissioner for taking affidavits as aforesaid, or forges or counterfeits any seal of a surrogate court, or knowingly uses or concurs in using any such forged or counterfeit signature or seal, or tenders in evidence any document with a false or coun- terfeit signature of such judge, registrar or commissioner, or with a false or counterfeit seal, knowing the same signature or 290 THE ICAOISTBATS'S MANUAL. • seal to be false or counterfeit, such person shall be guilty of felony, and liable to be imprisoned in the provincial penitentiary for any term not exceeding seven years." (Con. Stat. U. C. c, 16, s. 16.) Op Certificates, &o., required by Customs Act. — " If any person counterfeits or falsifies, or uses when so counterfeited or falsified, any paper or document required under this act, or for any purpose therein mentioned, whether written, printed or otherwise, or by any false statement procures such document ; or forges or counteifeits any certificate relating to any oath or aflSrmation hereby required or authorized, knowing them to be forged or counterfeited, such person shall be guilty of a misde- meanor, and being thereof convicted, shall be liable to be punished accordingly." (Con. Stat, C. c. 17, s. 68.) (As to forgery of post office stamps, &c., see "Post Office," po8t) Op Pawnbrokers' Notes. — "If any person counterfeits, forges, or alters any note or memorandum given by a pawn- broker for goods pledged, or causes or procures the same to be ^one, or utters, vends, or sells such note or memorandum, knowing the same to be counterfeited, forged or altered, with intent to defraud any person, such offender shall be punished AS hereinafter mentioned." {Ih. c. 61, s. 24.) Persons suspected op Forging how dealt with. — "In case apynote or memorandum aforesaid is uttered, shewn or offered to any person, and such person has reason to suspect that the same has been foiled, he may seize the person offering the same and deliver him to a bailiff or constable, who shall convey him before some Jnstice of the place where the offijnce has been committed, or nearest thereto ; and if upon examination it appears to the satisfaction of such Justice that such person is guilty, he shall commit him to the common gaol of the district or county for any time not exceeding three months."* {II. 8. 25.) * What is Fobokbt?— Forgery ie the fraadalent making or altering a written instrument, to the detriment of another. It is a felony for which the punishment is imprisonment in the provincial penitentiary for any period not less than two THB MAOISTBATE'S MANUAL. 291 GAOLS, Ac. The conduct, management, discipline and police of the pro- vincial penitentiary, and the inspection and regulation of all the gaols in the province, are committed to the five Inspectors of gaols, who at their meetings constitute a board. (See Con. Stat. C. c. 110.) Gaols and Court Houses. — "Every county council may pass by-laws for erecting, improving and repairing a court house, gaol, house of correction and house of industry, upon land being the property of the municipality, and shall preserve and keep the same in repair, and provide the food, fuel, and other supplies required for the same." (Con. Stat. U. C. c. 54^ s. 403.) " The gaol, court house and house of correction of the county in which a town or city, not separated for all purposes from a county, is situatCj shall also be the gaol, court house and house years, or in any common gaol for any term less than two years. No kind of fo^ery is now punishable with death. (Con. Stat. C. c. 94, s. 4.) To oonstitnte a forgery it is not necessary the whole instrument should be fictitious. Making a fraudulent insertion, alteration, or erasure, in any material part of a true document, by which another may be defrauded : the fraudulent' application df a fialse signature to a true instrument, or a real signature to a false one ; and the alterations of the date of a Kill after acceptance, by which its payment may be accelerated, are forgeries. If a note be made payable at a banker's, and he foils, it is a forgery to intro- duce a piece of paper oyer the name of the banker who has failed, containing the name of another banking house ; expunging an endorsement on a bank note with a liquor unknown is held to be an erasure within the statute. ^ The essence of forgery is an intent to defraud another; and therefore the mere imitation of another s writing, the assumption of a name, or the alteration of a written iustriiment, where no person can be injured, does not come within the definition of the offSence. Neither does the using of a fictitious name, though for the purpose of concealment and fraud, amount to forgery, unless it were for that precise species of fraud of which the forgery forms a part. Whether the fraud be effected on the party to whom the instrument is addressed, or whose writing ia counterfeited, or upon a third person, who taW it upon the credit it assumes, is immaterial ; nor is it of consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends, so long as thwe is sufficient resemblance to impose upon those to whom it is altered. Thus the fabrication of an order for the payment of a sailor's prize money is forgery, though it be invalid as wanting the requisites required by law. Lastly, to complete the offence the instrument forged should be parted with, or tendered, or offered, or used in some way, to get money or credit upon It. DeHvering a box containing among other things forged stamps to the party's own servant to be forwar&d by a carrier to a customer in the country, is an uttering within the statute. But merely shewing a man an instrument, the uttering of wMch would be criminal, is not an uttering. :iif I ■ '1 '?d 292 THE MAGISTBATE'S UAKOAL, of correction of the town or city ; and shall in the case of such a city continue to be so until the council of the city otherwise directs ; and the sheriff, gaoler and keeper of the gaol and house of correction shall receive and safely keep until duly discharged all persons committed thereto by any competent authority of the town or city." {Ih. s. 404.) ... " While a city or town uses the court house, gaol' or house of correction of the county, the city or town shall pay to the county such compensation therefor, and for the care and main- tenance of prisoners, as may be mutually agreed upon or be settled by arbitration under this act." • (Ih. s. 405.) " In case after the lapse of five years from such compensa- tion having been so agreed upon or awarded, or having been settled by act of parliament, and whether before or after the passing of this act, it appears reasonable to the Governor in coimcil, upon the application of either party, that the amount of the compensation should be reconsidered, he may by an order in council direct that the then existing arrangement shall cease after a time named in the order, and after such time the councils shall settle anew by agreement or by arbitration under this act the amount to be paid from the time so named in the order." (/5. s. 406.) " The council of every city may erect, preserve, improve and provide for the proper keeping of a court house, gaol, house of correction and house of industry upon lands being the property of the municipality, and may pass by-laws for all or any of such purposes." (Ih, s. 407.) *^ In case of a separation of a union of counties, all rules and regulations, and all matters and things in any act of parliament for the regulation of or relating to court houses or gaols in force at the time of the separation, shall extend to the court house and gaol of the junior county." (Ih. s. 408.) *^ LocK-up-HousBS. — " The council of every county may estab- lish a lock-up-house or lock-up-houses within the county, and may establish and provide for the salary or fees to be paid to the constable to be placed in charge of every such lock-up- house, and may direct the payment of the salary out of the funds of the county." (Ih. s. 409.) THE magistrate's MANUAL. 203 " Every lock-up-house shall be placed in the charge of a constable, specially appointed for that purpose by the magis- trates of the county at any General Quarter Sessions of the peace therefor." (lb. s. 410.) i " Any Justice of the Peace of the county may direct by warrant in writing under his hand and seal the confinement in a lock-up-house within his county, for a period not exceeding two days, of any person charged on oath with a criminal oifence, whom it may be necessary to detain until examined and either dismissed or fully committed for trial to the common gaol, and until such person can be conveyed to such gaol ; also the con- finement in such lock-up-house, not exceeding twerty-four hours, of any person found in a public street or highway in a state of intoidcation, or any person convicted of desecrating the Sabbath, and generally may commit to a lock-up-house instead of to the common gaol or other house of correction, any person convicted on view of the Justice, or summarily convicted before any Justice or Justices of the Peace of any offence cognizable by him or them, and liable to imprisonment therefor under any statute or municipal by-law." {Ih. s. 411.) " The expense of conveying any prisoner to, and of keeping him in a lock-up-house shall be defrayed in the same manner as the expense of conveying him to and keeping him in the common gaol of the county." {Ih, s. 412.) " The council of every city, town and incorporated village may, by by-laws, establish, maintain and regulate lock-up- houses for the detention and imprisonment of persons sentenced to imprisonment for not more than ten days under any by-law of the council ; and of persons detained for examination on a charge of having committed any offence ; and of persons detained for transmission to any common gaol or house of correction either for trial or in the execution of any sentence." (Ih. s. 414.) Hr:4».v,A;v« ',,;._, ,.>»,j -;.-..,'.■ "'^f.;, ^--i ^^iX'H .?■<■ f. .i-?',^ Houses of Industry and Refuge. — " The council of every county may establish a house of industry and house of refuge, and provide by by-law for the erection and repair thereof, and for the appointment and duties of inspectors, keepers, matrons and other servants for the superintendence, care and manage- I i; m 294 THE HAOISTRATE's MANUAL. ment of such house of industry or of refuge, and in like mna- ner make rules and regulations (not repugnant to law) for the government of the same.'' (Ih. s. 415.) " Any two of Her Majesty's Justices of the Peace, or of the inspectors appointed as aforesaid, may, by writing under their hands and seals commit to the house of industry or of refuge, io be employed and governed according to the rules, regulations And orders of the house : 1. '' All poor and indigent persons who are incapable of sup- porting themselves ; 1 V, 2. ^^ All persons without means of maintaining themselves, and able of body to work and who refuse or neglect so to do ; ' 3. '^ All persons leading a lewd, dissolute, or vagrant life, and exercising no wdinary caUing or lawful business sufficient to gain or procure an honest living ; ^ : • 4. '^ And all such as spend their time and property in public houses, to the neglect of any lawful calling ; 6. " And idiots." (/*. s. 416.) ; "Every person committed to the house of industry or of refuge, if fit and able, shall be kept diligently employed at labour during his continuance there ; and in case any such per- son is idle and does not perform such reasonable task or labour as may be assigned, or is stubborn, disobedient or disorderly, such pei^on shall be punished according to the rules and regu- lations of the house of industry or of refuge in that behalf." (/*.s. 417.) WoRK-HousEs. — "The council of every city and town may respectively pass by-laws : 1. " For erecting and establishing within the city or town, or on such industrial farm, or on any ground held by the cor- poration for public exhibitions, a work-house, or house of correction, and for regulating the government thereof; 2. " For committing or sending, with or without hard labour, to the work-house or house of correction, or to the industrial farm, by the mayor, recorder, police magistrate, or two Justices of the Peace for the city or town respectively, such descrip- tion of persons as may by the council be deemed, and by THB MAOISTBATE's MANUAL. 295 by-law be declared expedient ; and such farm or ground held as aforesaid shall for the purposes in this sub-section men- tioned, be deemed to be within the city or town and the juris- diction thereof" (/J. 8. 419,) Custody.— "The sheriff shall have the care of the county gaol, gaol offices and yard, and gaoler's apartments, and the appointment of the keepers thereof." {Ih. s. 420.) " The county council shall have the care of the court-house and of all offices and rooms connected therewith, whether the fiame forms a separate building or is connected with the gaol, •and shall have the appointment of the keepers thereof; and shall from time to time provide all necessary and proper accommodation for the courts of justice other than the divi- sion courts, and for all officers connected with such courts." ilh. s. 421.) " In any city not being a separate county for all purposes, but having a gaol or court-house separate from the county gaol or court-house, the care of such city gaol or court-house shall be regulated by the by-laws of the city council." {Ih. fi. 422.) O AM I NO. Gaming or speculating on the chance of winning or losing money by any play, game or diversion, is an offence not punishable at common law, unless it is so practised as to be injurious to the public economy ; but the Legislature has passed the following act, prohibiting the disposal of any property by lotteries or any mode of chance. * Penalty for making Lottbbies. — " If any person makes, prints, advertises or publishes, or causes or procures to be made, printed, advertised or published, any proposal, scheme or plan, for advancing, lending, giving, selling, or in any way disposing of any property, either real or personal, by lots, cards, tickets, or any mode of chance whatever, or sells, barters, exchanges, or otherwise disposes of, or causes or procures, or aids, or assists in the sale, barter, exchange or other disposal of, or offers for — eigii» a. ii j ii 'i! iiii ij:j! ■ 296 THE MA0I8TBATE g MANUAL. Bale, barter or exchange, any lot, card, ticket, or other means or device, for advancing, lending, giving, selling, or othenviso disposing of any property, real or personal, by lots, tickets, or any mode of chance whatever, such person shall, upon convic- tion thereot", before any mayor, alderman, or other Justice of the Peace, rpon the oath of any one or more credible witnesses, or upon confession thereof, forfeit the sum of twenty dollars for each and every such offence, together with costs, to be levied by distress and sale of the offender's goods, by warrant under the hand and seal of any such mayor, alderman, or other Justice of the Peace, of the city, town, county or place where such offence has been committed, which said forfeiture shall be applied half to the informer, and the other half shall be paid to the treasurer or chamberlain of the municipality in which such offence was conmiitted, and shall form part of the funds thereof." (Consol. Stat. C. c. 96, s. 1.) Buying Tickei's, &c. — " Any person buying, bartering, ex- changing, taking or receiving any such lot, card, ticket, or other device as in the first section of thi^ct mentioned, shall, upon conviction thereof, in like manner as therein mentioned, forfeit the sum of twenty dollars for each offence, to be reco- vered and applied as aforesaid." {lb. s. 2.) Sales, &c., void. — " Any sale, loan, gift, barter or exchange of any real or personal property, by any lottery, ticket, card, or other mode of chance whatever, depending upon, or to be determined by chance or lot, shall be void to all intents and purposes whatsoever ; and all such real or personal property so sold, lent, given, bartered or exchanged, shall be forfeited to such person as will sue for the same by action or information in any court of record in this province." (Ih. s. 3.) PuECHASER WITHOUT NOTICE. — " No such forfeiture shall affect any right or title to such real or personal property acquired by any bond fide purchaser for valuable consideration without notice." {lb. s. 4.) CoMMmAL FOE NON-PAYMENT OF PENALTIES. " If any porSOU so convicted as aforesaid has not sufficient goods and chattels THE MAGISTRATE 8 MANUAL. 297 whereon to levy the penalties authorized by this act, or does not immediately pay the said penalties, or give security for the same, such mayor, alderman, or other Justice, convicting such person, shall commit him to the common gaol of the county or district in which the offence was committed for a period not exceeding three months, unless such fine and costs be sooner paid." {Ih. s. 5.) Foreign LorrERiES. — " The provisions of this act shall ex- tend to the printing or publishing, or causing to be printed or published, of any advertisement, scheme, proposal or plan of any foreign lottery, and to the sale, or offer for sale, of any ticket, chance, or share, in any such lottery, or to the advertisement (75. s. 6.) for sale of such ticket, chance, or share." Interpretation. — " The term * personal property' in this act shall include every description of money, chattel and valuable security, and every kind of personal property whatever ; and the term ' real property' shall include every description of land, and all estates and interest therein." {Ih. b. 7.) ^ Appeals. — " Any person conviqted under this act shall have the same right of appeal from the judgment of the convicting Justice, as in other cases of summary convictions, where an appeal is allowed by law." (Ih. s. 8.) Division of Property in common. — "Nothing in this act contained shall prevent joint tenants, or tenants in common, or persons having joint interests, droits indivisj in any real or personal property, from dividing such property by lot or chance, in the same manner as if this act had not been passed." (76. 8. 9.) , . r, • ■■^,. .V V By-Laws against Gaming. — " The Council of every county, city and town, may pass by-laws for suppressing gamblings houses, and for seizing and destroying faro-banks, rouge-et-noir, roulette tables, and other devices for gambling found therein." (Con. Stat. U. C. c. 54, p. 282.) ii^ -n 298 THE MAOI8TBATE*S MANUAL. GENERAL QUARTER 8E8SIOKB. The Coubt op Genebal Quarter Sessions of the Peace. — This court is held four times a year in each county and pro- visional judicial district in Upper Canada, under the authority of the commission of the peace issued by the Crown, and various acts of Parliament. Its sittings begin upon the second Tuesday in the months of March, June, September and Decem- ber in each year, and are held at the county town of the county or judicial district. The act (20 Vic. c. 68) which provides the time when the court is to be holden is only directory, and therefore the court may be holden on any other day in the quarter. Summonsing the Oqurt op Quarter Sessions. — Any two or more of the Justices of the county or counties can summon this court by issuing and delivering to the sherifif, at least six- teen days before the day fixed on for the sitting, the following f ' PRECEPT. Canada, district (or MuiUly, united eountietf or dl ihs ttue may he) of ^ to wit: We, and -, two of Her Majesty's Justices assigned to keep the Peace, in and for the district {or county, or at the eaee may be) of — —, and also to hear and determme divers felonies, trespasses and other mis- deeds committed in the said district {or eounty, oraetke ea$e may be) To the sheriff of the district {or eounty^ oraethe vote may be) of ^ Greeting : On behalf of our Sovereign Lady the Queen, We command tov, that you do not omit bv reason of any liberty in your district (or county, or a* the eaee may be\ but that you cause to come before us and other our fellow Justices assigned to keep the Peace in and for the said district (or county, or at the eaee may bv), and also to hear and determine divers felonies, tres- passes and other misdeeds committed in the said district (or county, or at me ea$e may be), on — — neixt, at ten of the dock in the forenoon, at the court house in , — — good and lawful men of your district (or county, or as the ease may be) to enquire, present, do and perform, all and singular such things which on the p«rt of our said Lady ue Queen may be then and there ' ^joined them. Make known also to all Justices of the Peace of our said Lady the Queen, within the said district (or county, or at the caee may be), that they be then and there, with their rolls, records and other memoranda, to do those things vhich in that behalf belong to their several offices to be done ; and have you then and there the names of the said jurors and this precept Given under our hands and seals, this day of , in the year of Her Majesty's reign. J> S. [l. s.] . \ O.K. [L.8.] THE MAOIBTKATE^S MANUAL. 290 Upon receipt of thig precept the sheriff givee notice that he will upon a certain day and hour attend at the ofHce of the Clerk of the Peace to draft a {>ftuel of jurors. At the time so fixed at least t^^o Juatlces of the county must be present and witness the drafting of the panel by ballot. Former Commissions and Courts confirmed. — " The autho- rity under which Commissions of the Peace have been issued and the authority under which the courts of General Quarter Sessions of the Peace have been holden, and are now held in Upper Canada, and all matters and tilings done by, or by virtue of the same, shfdl be, so far as relates to the authority under which such commissions were issued and such courts have been holden, good and valid." (Con. Stat. U. C. c. 17, s. 1.) Outlawry.—" The courts of general quarter sessions of the peace in the several counties of Upper Canada shall be in the place and stead of the county courts of England, as far as res- pects any purpose of outlawry, or any proceedings therein." (75.8.2.) .. ' ; When to be held. — " The courts of general quarter sessions of the peace in and for the several counties, shall be held on the second Tuesday in the months of March, June, September and December in each year." {lb. 6. 3.) "Where to be held. — " The court of general quarter sessions of the peace shall be held in the county town of the county; but in time of war or other exigency the Governor may, by proclamation under the great seal, authorize the holding the court at some other place in the county." (Ih. s. 4.) Chairman. — " The judge of the county court of every county, and in case of his death or absence the junior or the deputy judge (as the case may be), officiating in the office of county court judge, shall preside as chairman at the general quarter sessions of the peace for the county ; but in case of the absence from sickness or other unavoidable cause of the judge of the county court, and of the junior and the deputy judge thereof, if such there be, the Justices present shall elect another chairman pro ternporeJ'^ {lb. s. 5.) 300 THE magistrate's MANUAL. Rescindino Orders op Court. — " WTienpv«>r an order has been passed or recorded by any number of magistrates in any county in Upper Canada the same shall not be rescinded, unless at least the same number be present."* {Ih. s. 6.) I.. JuRiSDicnoN OP Court. — " All powers and jurisdiction to try treasons and felonies, for conviction whereof the punishment of death is imposed, and which powers and jurisdiction are by any law or statute whatsoever granted or confirmed, or which are in any other manner vested in or exercised by any court of quarter sessions and recorder's court of this province, are hereby absolutely revoked and determined, and every such law and statute is hereby repealed, so far as it may confer such powers and jurisdictions." (24 Vic. c. 14, s. 1.) As to the appointment of constables, see article " Constable," cmte^ p. 185. . ^ ; > r. AuDiT OP County Expenses. — " All accounts and demands preferred by any person against the county, the approving and auditing of which belongs to the court of quarter sessions, shall be delivered to the clerk of the peace, on or before the first day of the session in each term, to be laid before the bench."t (Con. Stat. U. C. c. 121, s. 1.) "No accounts shall be passed or audited at any court of quarter sessions in any county of Upper Canada, unless at least seven magistrates be present, and whose names shall be entered on the record." (/J. s. 2.) . , * The clerk of the peace should be careful and keep a correct record of all the Justices present at the adjourned or special sessions. It frequently occurs that the orders respecting the boundaries of division courts and other matters require to be rescinded and new orders made. Justices should not attempt to revoke an order till they have satisfactory evidence that they have present a greater number than were present when it was made. Jit is frequently the case that accounts preferred by constables are deferred calised to be returned, because the Justice under the authority of whom he acted has not put upon the account the necessary certificate as to the fact, that the defendant has been sent to prison because goods could not be found, or as to some other fact; and therefore the Justice who administers to the constable the oath as to the correctness of the account should see that it has the necessary certificate before it is sworn to. THE MAOISTRATe's MANUAL. 801 " The court Bhall take the accounts into consideration on the second day of each session, and dispose of the same as soon as practicable ; and all orders or checks signed by the chairman of the quarter sessions, except for the payment of constables or services rendered during the sitting of the court, shall express the act of parliament, if any, under which the expenditure is authorized." {Ih. s. 3.) " At the adjournment of each court of quarter sessions the clerk of the peace shall furnish the treasurer with a list of the orders passed during such session, aclbording to their priority ; and the treasurer shall pay such orders according to the res- pective dates and numbers in which the same were passed at the said session ; but all sums necessary to defray the expenses of the custody and maintenance of prisoners, and the accounts of public officers, and officers of the court, shall be first paid." (/J. s. 4.) " Except for debts actually due by a county, the magistrates for such county shall not order or direct the payment of any sum of money by the treasurer of such county, unless it appears by the treasurer's accounts that there are sufficient funds in his hands to meet the payment of such order ; and if any such order be made contrary to the provisions hereof, the person or persons in whose favor such order has been made may recover the same against the magistrates who sanctioned such order, in an action to be brought for that purpose, as for so much money had and received to the plaintiff's use and benefit." (Ih. s. 5.) M«l mm 1 m\ (MB WaM\ *w' i^K 1 GAME LAWS— OFFENCES AGAINST. Killing Deer, . Eggs not to be taken. — " No eggs of any kind of the birds above enumerated, and hereby declared to be game, shall be wantonly destwyed at any time." {Ih. s. 10.) Vic THE MAOISTBATe'b HIANUAL. 303 Punishment op offences against this act. — " Every offence against any provision of this act shall be punished summarily on information and. conviction before a Justice of the Peace, by a fine not exceeding fifty dollars nor less than five dollars, in the discretion of such Justice, with costs, or in default of payment by imprisonment in a common gaol for a term not exceeding two months, or by imprisonment in any common gaol for a period not exceeding three months, without fine ; one half of the fine to go to the municipality, and the other half to the informer." {Ih. s. 11.) Op Game confiscated. — " In all cases confiscation of the game shall follow on conviction, and the game so confiscated shall be givea to some charitable institution or institutions, at the discretion of the convicting justice." {Ih. s. 12.) Traps, &c., may be desteoyed. — " Any person may destroy traps, nets or snares, set or erected, either wholly or in part in contravention of any provision of this act" (IT), s. 13.) Beaver, Musk-bats, &o. — ^"liJ^o b^iver, musk-rat, mink, sable, otter or fisher, shall be trapped, hunted, taken or killed, nor shall any trap or snare be laid for the same or any of them, between the first day of May and tlie first day of November, in any year ; and all persons violating this section of this act shall be liable to the same proceedings and penalties, to be enforced and recoveredjn the same way, as are above declared with respect to game." {Ih s. 14.) Destruction of Insectivorous Birds. — " The destruction of insectivorous birds being prejudicial to agriculture, and the killing and capturing of singing and other birds being a use- less and cruel practice, the following statute has been enacted in that behalf : ' "It shall not be lawful to shoot, destroy, kill, wound or injure any bird whatsoever, save and except eagles, lialcongj hawks, and other birds of the eagle kind, wifd pigeons, rice birds, kingfishers, crows and ravens, between the first day of March and the first day of August, in each year." (27 & 28 Yic c. 52, 8. 1.) 804 THE MAGIBTBATB'S MANUAL. ' " It shall not be lawful to take, capture, buy, sell, expose for sale, or have in possession, any Ibird whatsoever, save the kinds above excepted, or to set, either wholly or in part, any net, trap, spring, snare, cage, or other machine or engine, by which any bird whatsoever, save the kinds above excepted, might be killed or captured, between the first day of March and the first day of August in any year." {Ih. s. 2.) ■ " It shall not be lawful to take, injure, destroy, or have in possession, any nest, young or egg, of any bird whatsoever, except those of eagles, falcons, hawks, and other birds of the eagle kind, and kingfishers, between the first day of March and the first day of August, in any year," {Ih, s. 3.) "Provided always, that this act shall not apply to any imported birds, or to any domesticated bird or birds commonly known as poultry ; nor shall it btf unlawful to buy, «ell, expose for sale or possess, any bird taken or captured at a season not forbidden by this act; but the proof that such bird was so taken or captured shall lie wholly on the party accused, whose oath alone shall suffice as such proof." {Ih, s. 4.) " The violation of any provision of this act shall subject the offender to the payment of a penalty of not less than one dollar, and not more than ten dollars, to be recovered in a summary manner by summons before one Justice of the Peace of the district in which the offence is committed, who shall award the penalty the offender may be condemned to pay to the prosecutor, with all fees and costs incurred ; and in default of immediate payment thereof, the offender shall at once be imprisoned in the nearest common gaol for a period of not less than two and not more than twenty days, at the discretion of such Justice of the Peace." {Th, s. 6.) " Any person may seize on view any bird unlawfully pos- sessed, and carry the same before a Justice of the Peace, to be by him confiscated; and it shall be the duty of all market clerks and polfte officers on the spot to seize and confiscate, and, if alive, to liberate such birds ; and every person is autho- rised to destroy all nets, traps, snares, cages, or other machines or engines, set wholly or in part, whereby any kind of bird THE magistrate's MANUAL. 305 whatsoever, save the kinds above excepted in the first and fourth sections of this act, might be unlawfully killed or cap- tured." {Ih. s. 6.) " The Minister of Agriculture, and all persons authorised by him to that effect, may grant written permission to any person or persons who may be desirous of obtaining birds or eggs for land fide scientific purposes, to procure them for that purpose during the close seasons, and such person or persons shall not be liable to any penalty under this act." {Ih. s. 7.) " No conviction shall be annulled or vacated for any defect in the form thereof, or for any omission or informality in any summons or other proceeding under this act, so long as no substantial injustice results therefrom." {Ih. s. 8.) " The present act, and all its provisions, shall be so construed as not to amend or vacate any provision of the Game Acts of Canada, or any amendments thereto." {Ih. s. 9.) HARBOURS, Ac. 1' " The council of every city, town, and incorporated village may respectively pass by-laws for the following purposes : 1. " For regulating or preventing the encumbering, injuring, or fouling, by animals, vehicles, vessels, or other means, of any public wharf, dock, slip, drain, sewer, shore, bay, harbour, river or water ; 2. " For directing the removal of door-steps, porches, rail- ings, or other erections or obstructions projecting into or over any wharf, dock, slip, drain, sewer, bay, harbour, river or water, or the banks or shores thereof, at the expense of the proprietor or occupant of the property connected with which such projections are found ; 3. " For making, opening, preserving, altering, improving, and maintaining public wharves, docks, slips, shores, bays, harbours, rivers, or waters, and the banks thereof; 4. " For regulating harbours ; for preventing the filling up or encumbering thereof; for erecting and maintaining the necessary beacons, and for erecting and renting wharves, piera, 20 306 THB MAOISTBATE'S MANUAL. and docks therein, and also floating elevators, derricks, cranes, and other machinery suitable for loading, discharging, or repairing vessels ; for regulating the vessels, crafts, and rafts arriving in any harbour ; and for imposing and collecting such reasonable harbour-dues thereon as may serve to keep the harbour in good order and to pay a harbour-master." HARDLABOUR. Hard labour cannot be imposed except the statute creating the ofl^nce expressly authorizes it. In offences for which hard labour may be imposed the commitment need not expressly negative the hard labour, it being presumed that it is not ordered unless stated. A conviction adjudging imprisonment and hard labour in default of sufficient distress is bad, and can be quashed, unless specially imposed and ordered by the statute. Sentence to the Penitentiary to include Hard Labour. — " The sentence of any person to be imprisoned in the provin- cial penitentiary shall (whether expressed or not) include hard labour." (Con. Stat. C. c. 99, s. 102.) The Court may order Hard Labour or Solitary Confine- ment AS PART op the SENTENCE OF IMPRISONMENT. — " When a person has been convicted of an offence for which imprison- ment other than in the penitentiary may be awarded, the court may sentence the offender to be imprisoned and kept to hard labour in the common gaol or house of correction, and may also direct that the offender shall be kept in solitary con- finement for a portion or for portions of the term of such imprisonment, not exceeding one month at any one time, and not exceeding three months in any one year." {Ih. s. 110.) May be imposed by Justices. — In convictioris i.nder the act against cruelty to animals, malicious injury to property, selling or disposing of spirituous liquors between the hours of seven on Saturday evening and eight on Monday morning, hard labour may be imposed by the convicting Justices. Every municipal council may pass by-laws for inflicting reason- able punishment by imprisonment, with or without hard THE MAGISTRATE S MANUAL. 307 labour, either in a lock-up-house in some town or village in the township, or in the county gaol or house of correction, for any period not exceeding twenty-one days, for breach of any of the by-laws, where no distress can be found. (See Con. Stat. TJ. C. c. 54, s. 243, sub. s. 8.) f«i HIGHWAYS — OFFENCES RELATING TO. What a Highway is. — A highway is a common way, over which every person has an equal right of thoroughfare, and this whether it be only a foot-way or a cart-way. A way to a locality which is only for the particular inhabitants of such locality is a private way only, and not a highway. " All allowances for roads made by the crown surveyor in any town, township or place already laid out, or hereafter laid out, and also all roads laid out by virtue of any act of the parliament of Upper Canada, or any roads whereon the public money has been expended for opening the same, or whereon the statute labour hath been usually performed, or any roads passing through the Indian lands, shall be deemed common and public highways, unless where such roads have been already altered according to law." (Con. Stat. U. C. c. 54, s. 313.) Use of Public Roads in Cities and Towns. — " Tlie right to use as public highway all roads, streets and public high- ways within the limits of any city or incorporated town, (except in so far as the right of property or other right in the land occupied by such highways has been expressly reserved by some private party when first used as such roads, streets or highways, and except as to any concession road or side road within the city or town where the persons now in possession, or those under whom they claim, have laid out streets in such city or town without any compensation therefor in lieu of such concession or side road)." (Con. Stat. C. c. 85, s. 1.) The Coeporation to repair, &o. — " Such roads, streets and highways, so long as they remain open as such, shall be main- tained and kept in proper repair by and at the cost of such 308 THE MAOISTRATE's MANUAL. corporation, whether they were originally opened and made by such corporation, or by the government of this province, or of either of the late provinces of Upper or Lower Canada^ or by any other authority or party." (75. s. 2.) Neglect, — " If the municipal corporation of any such city or incorporated town fail to keep in repair any such road, street or highway within the limits thereof, such default shall be a misdemeanor, for which such corporation shall be punished by fine in the discretion of the court before whom the convic- tion is had ; and such corporation shall be also civilly respon- sible for all damages sustained by any party by reason of such default, provided the action for the recovery of such damages be brought within three months after the same has been sus- tained." {Ih. s. 3.) Tolls — How fixed, ifec. — " The president and directors of any company may from time to time fix, regulate, and receive the tolls and charges to be paid by persons passing and re- passing with horses, carts, carriages, and other vehicles ; and for cattle, swine, sheep, or other animals driven upon, over, and along the road of the company ; or by i:>erBons passing over any bridge with any such carriages or animals ; or using any work constructed, made or owned by the company." (Con. .Stat. 0. c. 49, s. 73.) When Tolls to be collected. — "Whenever two or more miles of such road or extension thereof have been completed, tolls may be taken therefor ; but tolls shall not be taken on any other work of the company until the same has been com- jpleted." (7*. s. 74) , . Limitation of Tolls. — "Tolls may be taken by the com- pany at each time of passing each gate upon the road con- structed or owned by the company, for any portion of such road on either side or both sides of the said gate (not being more than five miles) to the next gate or gates on the same road, if any, and not exceeding five miles in the whole ; or for the whole of such road, if the length thereof do not exceed five miles and there be only one gate thereon, at the following rates per mile, that is to say: THE MAOISTBATE^S MANTAL. 309 1. " For every vehicle, whether loaded or otherwise, and for the horse or other beast, or one of the horses or other beasts drawing the same, one penny ; and for every additional horse or other beast drawing such vehicle, one halfpenny ; 2. " For every horse with or without a rider, one halfpenny ; 3. " For each head of neat cattle, one halfpenny ; 4. " For every score, or number less than a score, of sheep or swine, one halfpenny ; and 6. " In addition to the above rates, one halfpenny for every one hundred pounds over and above four thousand, which a loaded vehicle weighs." {Ih. s. 75.) Extra Tolls. — " Every vehicle loaded with masts, spars, hewn or round timber, or otherwise, exceeding in weight two . tons, shall, at each time of passing each gate, pay for each ton over and above two tons the sum of fifty cents ; and all vehicles with wheels used for the above purpose shall have not less than five-inch tires, under penalty of paying double the amount of toll above provided." {Ih. s. 76.) EoADs iNTEESECTiNG. — " Whenever a road, constructed under this or any former act intersects a road constructed or owned by another chartered company, no higher rate of toll shall be demanded from persons travelling along the said last-mentioned road, for the distance travelled between such intersection and either of its termini, than the rate per mile charged by the said company for travelling along the entire length of their road so intersected : but it shall be incumbent on such persons to produce a ticket from the last toll-gate on the intersecting road, as evidence of their having travelled only from such intersection." {Ih. s. 77.) ,, . Tolls on Bridges. — "Any company formed under this or any other act may, with the sanction of the council of the county having jurisdiction in the locality, charge a higher rate of toll than is hereby authorized at any toll-gate erected at any bridge upon or connected with any road constructed by such company ; and the council, in sanctioning such additional toll, may take into account the cost of such bridge, and may ,11 - 1 310 THE MAOISTBATE's MANUAL. calculate tlie toll as if for so many additional miles of road as might have been constructed for the like expenditure.'^ {II. s. 78.) Collection of extra Tolls. — " Such last-mentioned tolls shall be collected in the same manner, and persons evading the same shall be liable to the same penalties as herein pro- vided with respect to other tolls." {Ih. s. 79.) Toll-gates, &o. — "Every such company may erect such number of toll-gafes, check-gates, and side-bars, in, along, or across the said roads, and upon any other such work respec- tively, and fix, regulate, and collect such tolls, not exceeding the rates hereinbefore provided, to be collected at each gate, check-gate, or side-bar, as they deem expedient ; and may from time to time alter such tolls, toll-gates, check-gates, and side-bars, and may erect and maintain such toll-houses, toll- gates, check-gates, side-bars, and other buildings and erections as are necessary for the due management of the business of the company." {Ih. s. 80.) Vehicles crossing a Road. — ^" Nt lolls shall be taken for merely crossing a road, or for travelling thereon in crossing from one transverse road to another, when the distance be- tween such transvei-se roads does not exceed one hundred yards." {Ih. s. 18.) Check-gates. — " In case any company deems it necessary or convenient to erect a check-gate on any part of tlieir road, they shall not demand toll at both the check-gate and the gate to which it acts as a check ; but tickets shall be issued at the check-gate, on payment of the toll demanded, clearing the principal gate, and vice versd^ and the distance regulating the rates of toll shall not be calculated between any of the check-gates and the principal gates on such road, but only between the principal gates themselves." {Ih. s. 82.) Company to repair. — ^^ After any road or portion of a road, bridge, or other such work, constructed or acquired by any company or municipality under this or any former act, has been completed and tolls established thereon, the company or municipality shall keep the same in repair*" {Ih. s. 84.) THE MAOIBTRATE's MANUAL. 811 Engineer to examine the Road. — "If any such con pany or municipality suffers any portion of their road on which tolls have been taken to get out of repair, the Judge of the county court in the county in which such road is situated may, upon the requisition of twelve freeholders residing within such county, stating that such road is so much out of repair as to impede or endanger Her Majesty's subjects and otters travel- ling thereon, direct the engineer of the county, and if there be no such county officer, th'en any competent engineer, to examine the road." {Ih. s. 85.) Notice to repair. — " The engineer so appointed shall, upon receiving such directions, immediately inspect and examine the road ; and if upon examination it be found so much out of repair as to impede and endanger Her Majesty's subjects and others travelling thereon, as stated in the requisition, he shall notify the president of the company or the head of the muni- cipality to whom the road belongs, by leaving a written notice with any of the keepers of the toll-gates belonging to such company or municipality, stating that, in pursuance of direc- tions from the Judge of the county court, he has inspected their road and found it to be out of repair, and requiring them to take notice thereof, and to cause tlie same to be repaired within a certain time to be named in such notice, and the time shall be such as, in the opinion of the engineer, will be sufficient to make the required repairs." {Ih. s. 86.) Tolls not to be collected till repairs made. — " If the directors of the company or the municipal council, after the service of such notice, refuse or neglect to repair the road in a good and efficient manner within the period limited in the notice, then, from and after the expiration of such period, and until such repairs be completed, neither the directors nor coun- cil, nor any person authorized by them, shall demand or take any toll from any person travelling with or without any beast or vehicle, for passing through the nearest toll-gates on either side of the portion or portions of the road so reported to be out of repair." {Ih. s. 87.) i 812 THB MAOZSTftATB'8 MANUAL. Penalty. — " If, after the expiration of the period limited in the notice before mentioned, and before the required repairs have been completed, any person acting as a keeper of any such toll-gate demands or takes any tolls, or refuses to allow any person travelling as aforesaid to pass through such toll- gates without payment thereof, he shall, upon conviction before a Justice of the Peace for the county in which such toll-gate is situated, upon the oath of one credible witness, forfeit and pay a sum of not less than oile dollar nor more than four dollars for every such offence, to be collected or enforced in the manner prescribed for the collection or enforcement of other penalties under this act." (Ih. s. 88.) Taking more than the proper Toll. — " If any person, being either the renter or collector of tolls at any gate on any road, takes a greater toll than is authorized by law, he shall for every such offence forfeit and pay the sum of twenty dollars, to be recovered in the same manner as other penalties imposed by this act." (Con. Stat. U. C. c. 49, s. 89.) As TO Money change. — " No gate-keeper shall be bound to give change for a larger amount than one dollar." (Ih. s. 90.) Exemption from Toll. — "The following persons shall be exempted from the payment of any duties or tolls on embark- ing or disembarking from or upon any pier, wharf, quay or landing-place, or passing any turnpike roads or bridges, or passing any toll-gate or road made oi: improved under this or any former act : 1. " Her Majesty's officers and soldiers, being in proper staff, or regimental, or military uniform, dress or undress, and their horses (but not when passing in any hired or private vehicle) ; 2. " Recruits marching by route ; 3. " Prisoners under military escort ; 4. "Enrolled pensioners in uniform, when called out for training or in aid of the civil power ; 6. " Carriages and horses belonging to Her Majesty or em- ployed in her service, when conveying such persons or their baggage, or returning therefrom ; THE MAOISTRATE 8 MANUAL. 313 6. " Persons, horses or carriages going to or returning from a funeral ; 7. " And any person with horse or carriage going to or returning from his usual place of religious worship on the Sunday ; 8. " Any farmer residing on the line of any such road passing any toll-gate opposite to and immediately adjoining his farm, when going to or returning from his work on such farm." (Ih. s. 91.) Persons ooino ob coming fkom Divine Service free from Toll. — " All persons going to or returning from divine service on any Sunday or obligatory holiday, in, or upon or with their own carriages, horses or other beasts of draught, and also their families and servants, being in, or upon and with such car- riages, horses or other beasts of draught, shall pass toll free through any turnpike road through which they may have occasion lo pass, whether such road, turnpike road, and the tolls thereon, belong to the province, to to any local municipal authority, or body of trustees, or commissioners for local pur- poses, or to any incorporated or unincorporated company." (Con. Stat. C. c. 86, s. 1.) Vehicles, Cattle, &q., crossing Roads. — "No vehicle, laden or unladen, and no horses or cattle belonging to the proprietor or occupier of any land divided by any turnpike road, shall be liable to toll in passing through any toll-gate on such road (at whatever 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 returning, and for farming or domestic purposes only." (/J. S.2.) Yehicles laden wtth Manure. — " Every vehicle laden solely with manure, brought from any city in Lower Canada, or any city or incorporated town in Upper Canada, and employed to carry the same into the country parts for the purposes of agri- culture, and the horse or horses, or other beast of draught, 1} miifi ■i Wmk TWS., mm mk ■^m 314: THE MAOISTBATe's MANUAL. hi drawing such vehicle, shall pass toll free through every turn- pike gate or toll-gate on any turnpike road within twenty miles of such city or town, as well as going from such city or town as in returning thereto, if then empty." {Ih. s. 3.) Act not to apply to BRrooES. — " This act shall not extend to any toll-bridge, the tolls on which are vested in any party other than the crown." {Ih. s. 4.) Mail Coaches, &c. — "Tolls may be charged on vehicles carrying the mails upon any road or bridge constructed under this or any former act, or under any special or private act of incorporation ; but as regards all roads and bridges constructed by the provincial government or board of works, and transfer- red to any company on condition that the mails should pass free over the same, an exemption from toll shall continue in favour of the mails ; and, in the case of any such last men- tioned road or bridge, there shall be no such exemption in favour of any mail stage or other vehicle drawn by two horses and carrying the mail, and containing or having more than four passengers travelling thereby, or in favour of any mail stage or other vehicle drawn by four horses and carrying the mail, and containing or having more than eight passengers travelling thereby." (Con. Stat. U. C. c. 49, a. 92.) " But every such mail stage or vehicle drawn by two horses and containing more than four passengers, and every sucL mail stage or vehicle drawn by four horses and containing or having more than eight passengers travelling thereby, shall for every extra passenger beyond four or eight respectively be liable at each gate to a toll of one penny." {Ih. s. 93.) (As to toll-gate keepers stopping mails, see article "Post Office," ^ J'hrowmg rvibbish into drains. — 11. "Throws any earth, rubbish or any other matter or thing into any drain, ditch, culvert or other water-course made for draining any such road; or - , •■'■ •'-.•^'""■. '>• ■" ^ v •- * .^^ Carrying away a/ny st&nes^ gravel, (&g. — 12. " Without per- mission carries away any stones, gravel, sand or other materials, dirt or soil from any part of such road, or digs any holes or ditches on the allowance for the same ; or AUowing swine to run ai large. — 13. " Allows any swine to run at large to the injury of the road ; every such person shall, upon conviction thereof in a summary way, before any Justice of the Peace in or near the place where the injury has been done, be sentenced to pay all damages sustained by such com- pany, which damages shall be ascertained by the Justice on hearing the complaint, and also be sentenced to pay a fine of not more than ten dollars nor less than one dollar, together with all costs ; which damages, fines and costs shall be paid within a time to be limited by the Justice, and in default thereof the same shall be levied as hereinafter provided." (lb. s. 104.) Company not to impede graded portion op the Eoad. — " No company, or municipality, or contractor, sub-contractor, or person employed by such company or municipality, con- tractor or sub-contractor, shall leave or place upon the graded portion of any road constructed or acquired by such company or municipality under this act or any former act, whether such part of the road be or be not macadamized, gravelled or planked, any stone, gravel, plank, timber or other material whatsoever, so as to prevent the public from using, or to im- pede tlie free use of the whole of such graded portion of the road ; and for any offence against this section such company, municipality, contractor, sub-contractor or other person, shall THE MAGISTEATe's MANUAL. 319 also incur a penalty of not less than one dollar nor more than twenty dollars, to be recovered summarily before a Justice of the Peace, in the manner provided by this act for the recovery of other penalties." {Ih. &. 105.) Application op Penalties. — " For offences against the last section in the case of roads owned by companies, the penalty shall be paid to the municipality within which such road is situate ; and in the case of roads owned by municipalities, one- half the fine shall be paid to the complainant, and the residue to the Receiver General for the public uses of this province." {Ih. s. 106.) Eeooveey op Fines and Forfeitures. — " Every fine and forfeiture authorized to be summarily imposed by this act may be recovered upon information and complaint before any Jus- tice of the Peace of the county within which the same has been incurred, and may be levied and collected by distress and sale of the offender's goods and chattels, under the authority of a warrant of distress for that purpose, to be issued by the Justice before whom the conviction is had ; and in case there be no goods or chattels to satisfy the warrant, the offender may be committed to the common gaol of the county for any period not exceeding one month ; but nothing in this section contained shall interfere with the provisions made in the ninety- sixty section of this act, for issuing a warrant of commitment in the first instance, upon conviction for any offence therein mentioned." {Ih. s. 107.) Arrest of Party not appearing. — " In any proceeding or prosecution before a Justice of the Peace under this act, the Justice may summon the party complained against to appear at a time and place to be named in the summons, and if he does not appear, then, upon proof of the due service of the sum- mons upoA such party, either pei'sonally or by leaving a copy thereof at his usual place of abode, the Justice may proceed either to hear and determine the same exparte^ or to issue his ■warrant for apprehending and bringing the party before him- ■■■\\ * That is, notwithstanding the absence of the accused. 320 THE magistrate's MANUAL. self or some other Justice of the Peace ; or the Justice may, if he thinks fit, without previous summons issue the warrant, and the Justice before whom the party appears or is brought shall hear and determine the case." {Ih. s. 108.) Application of Fines, ifec. — " Each fine and forfeiture col- lected under this act shall, unless otherwise provided, be paid to the company or municipality owning the road or other work, in respect of which such fine and forfeitures have been imposed, for the use of such company or municipality." {Ih. 8. 109.) LiMiiATioN OF -Actions. — " No action or suit shall be brought for any matter or thing done in performance of this act, unless such action or suit be brought within six months next after the fact committed ; and the defendant in any such action or suit may plead the general issue only, and on the trial give this act and the special matter in evidence." {Tb. s. 110.) Officers, &c., may be Wftnesses. — " In any action or suit brought by or against any such company upon a contract, or for any matter or thing whatsoever, any stockholder or any officer or servant of the company shall be competent as a wit- ness, and his testimony shall not be deemed inadmissible on the ground of interest, or of his being such servant or officer." (/&. s. 111.) , ,. , , Carriages meeting on Highways. — "In case any person travelling or being upon any highway in charge of a vehicle drawn by one or more horses, or one or more other animals, ireets another vehicle drawn as aforesaid, he shall turn out to the right from the centre of the road, allowing to the vehicle so met one half of the road." (Con. Stat. U. C. c. 66, s. 1.) Carriages Overtaken. — " In case any person travelling or being upon any highway in charge of a vehicle as aforesaid, or on horseback, be overtaken by any vehicle or horseman travel- ling at a greater speed, the person so overtaken shall quietly turn out to the right, and allow the said vehicle or horseman to pass." {Ih. s. 2.) H THE magistrate's MANUAL. 321 Loaded Vehicles — " In the case of one vehicle being mfet or overtaken by another, if by reason of the extreme weight of the load on either of the vehicles so meeting, or on the vehicle so overtaken, the driver finds it impracticable to turn out as aforesaid, he shall immediately stop, and, if necessary for the safety of the other vehicle, and if requested so to do, he shall assist the person in charge thereof to pass without damage." (/*. s. 3.) Penalty if Driver intoxicated. — " In case any person in charge of a vehicle, or of a liorse or other animal used as the means of conveyance, travelling or being on any highway as aforesaid, be through drunkenness unable to drive or ride the same with safety to other persons travelling on or being upon the highway, he shall incur the penalties imposed by this act." (/&. s. 4.) " Eacing forbidden. — "Ko person shall race with or drive furiously any horse or other animal, or shout or use any blas- phemous or indecent language upon any highway." {Ih. s. 6.) Swearing forbidden. — "In case any person so races or drives, or shouts or uses blasphemous or indecent language, he shall incur the penalties imposed by this act." {Ih. s. 6.) Sleigh Horses to have Bells. — " Every person travelling upon any highway with a sleigh, sled or carriole, drawn by horse or mule, shall have at least two bells attached to the harness." (Ih. s. 7.) Notice to be posted at the Bridges to which this Act APPLIES. — "Every person who has the superintendence and management of any bridge exceeding thirty feet in length, shall cause to be put up at each end thereof, conspicuously placed, a notice legibly printed in the following form : ^'^ Any person or persons riding or driving on or over this bridge at a faster rate than a walk, will, on conviction thereof, be subject to a fine, as provided by law." (Ih, s. 8.) Pelalty on Persons defacing such Kotioe. — " In case any person injures, or in any way interferes with such notice, he 21 ' lii 322 THE MAGISTRATE S MANUAL. shall incur a fine of not less than one nor more than eight dollars, to be recovered in the same manner as other penalties imposed by this act." {Ih. s. 9.) Fast driving over Bridges. — " If while such notice con- tinues up, any person rides or drives a horse or other beast of burden over such bridge at a pace faster than a walk, he shall incur the penalties imposed by this act." {Ih. s. 10.) Penalties. — " In cases not otherwise specially provided for, if any person contravenes this act, and such contravention be duly proved by the oath of one credible witness before any Justice of the Peace having jurisdiction within the locality where the offence has been committed, the offender shall incur a penalty of not less than one dollar nor more than twenty dollars, in the discretion of such Justice, with costs." {Ih s. 11.) " If not paid forthwith, the penalty and costs shall be levied by distress and sale of the goods and chattels of the offender, under a warrant signed and sealed by the convicting Justice ; and the overplus, if any, after deducting the penalty and costs and charges of sale, shall be returned on demand to the owner of such goods and chattels." {Ih. s. 12.) " In default of payment or distress, the offender shall, by warrant signed and sealed as aforesaid, be imprisoned in the common gaol for a period of not less than one day nor more than twenty days, at the discretion of the Justices, unless such fine, costs, and charges be sooner paid." {Ih. s. 13.) " No such fine or imprisonment shall be a bar to the re- covery of damages by the injured party, before any court of scompetent jurisdiction." (/J. s. 14.) , • " Every fine collected under this act shall be paid to the chamberlain or treasurer of the local municipality or place in which the offence was committed, and shall be applied to^ the general purposes thereof." (/5. s. 18.) a\ *' The council of every township, town, and incorporated village may pass by-laws : Statute Labour. — 1. " For empowering any person, resident 7 or non-resident, liable to statute labour, within the munici- THE magistrate's MANUAL. 323 pality, to compound for such labour for any term not exceeding five years, at any sum not exceeding one dollar for each day's labour; • . 2. " For providing that a sum of money, not exceeding one dollar for each day's labour, may or shall be paid in commuta- tion of such statute labour ; 3. " For increasing or reducing the number of days' labour to which the persons rated on the assessment-roll or otherwise shall be liable, in proportion to the statute labour to which such persons are, in respect of the amounts at which they are assessed or otherwise, respectively liable ; 4. " For enforcing the performance of statute labour, or payment of a commutation in money in lieu thereof, when not otherwise provided by law ; 6. " For regulating the manner and the divisions in whicli statute labour or commutation money shall be performed or expended." (Con. Stat. U. 0. c. 54:, s. 330.) "The council of every township, county, city, town, and incorporated village, may pass by-laws : Fast driving on Bridges. — " For regulating the driving and riding on public bridges.." (Ih. s. 331.) Pits and Precipices. — " For making regulations as to pits, precipices, and deep waters, and other places dangerous to travellers." (Ih.) < . . Highways in Cities, Townships, Towns, and Incorpo- rated Villages. — " Every public road, street, bridge, or other highway in a city, township, town or incorporated village, shall be vested in the municipality, subject to any rights in the soil which the individuals who laid out such road, street, bridge, or highway reserved; and except any concession or other road within the city, township, town, or incorporated village, taken and held possession of by an individual in lieu of a street, road, or highway, laid out by him without com- pensation therefor." {lb. s. 336.) Penalty for not repairing. — "Every such road, street, bridge, and highway shall be kept in repair by the corporation, .,< IS (11 ■!■ ii" 324 THE MAGISTEATe's MANUAL. and the default of the corporation so to keep in repair shall be a misdemeanor, punishable by fine in the discretion of the court ; and the corporation shall be further civilly responsible for all damages sustained by any person by reason of such default ; but the action must be brought within three months after the damages have been sustained. And this section shall not apply to any road, street, bridge, or highway laid out without the coijsent of the corporation by by-law, until estab- lished and assumed by by-law." {Ih. s. 337.) " The council of every city, town, and incorporated village may pass by-laws for regulating or preventing the encum- bering, injuring, or fouling, by animals, vehicles, vessels, or other means, of any road, street, square, alley, lane, bridge, or other communication." (/J. s. 338.) Certain Powers of Justices in Sessions transferred. — " All powers, duties and liabilities which at any time before the first day of January, one thousand eight hundred and fifty, belonged to the magistrates in Quarter Sessions, with respect to any particular road or bridge in a county, and not conferred or imposed upon any other municipal corporation, shall belong to the council of the county, or, in case the road or bridge lies in two or more counties, to the councils of such counties ; and the neglect or disobedience of any regulations or directions made by such council or councils, shall subject the offenders to the same penalties and other consequences as the neglect or disobedience of the like regulations or directions of the magis- trates would have subjected them to." {Ih. s. 341.) General Powers op Cotjnties respecting Highways. — " The council of every county shall have power to pass by-laws for the following purposes : " For preventing immoderate riding or driving of horses or other cattle on the highways, whether township or county highways ; "For opening, making, preserving, improving, repairing, widening, altering, diverting, stopping up and pulling down, drains, sewers, water-courses, roads, streets, squares, alleys, lanes, bridges or other public communications, running or THE magistrate's MANUAL. 825 being within one or more townships, or between two or more townships of the county, or between the county and any adjoining county or city, or on the bounds of any town or incorporated village within the boundaries of the county, as the interests of the inhabitants of the county in the opinion of the council require to be so opened, made, preserved and improved, and for entering upon, breaking up, taking or using any land in any way necessary or convenient for the said pur- poses, subject to the restrictions hereinbefore contained." {Ih. B. 342.) — • — HOMICIDE. HoMioroE, which is the killing of a human being, is either justifiable, excusable, or felonious. The first has no tinge of guilt ; the second very little ; but the third is the highest crime that man is capable of committing against a fellow- creature. Justifiable homicide, which appears almost incon- sistent to include among crimes, is of divers kinds, including such cases as arise from unavoidable necessity or accident, without any imputation of blame or negligence in the party killing. Of this kind is homicide committed in the pursuit of justice in the execution of any civil or criminal process. But in these cases the necessity must be real and apparent, — as that the oflfender could not be arrested, or the. riot suppressed, or the property stolen re-taken, unless homicide had been committed. Homicide is justifiable when committed in the prevention of any atrocious crime, as of murder, burglary, &c. A woman is justifiable in killing one who attempts to ravish her ; and so, too, the husband or father may justify the killing a man who attempts a rape on his wife or daughter ; but not if he take them together by consent, — for the one is forcible and felonious, not the other. Attempting a crime still more abominable may be punished by the death of the unnatural aggressor. Justifiable homicide reaches not to crimes unaccompanied with violence, as picking of pockets, or attempting to break open a house in the day-time, without an attempt at robbery. 326 THE MAGISTRATE 8 MANUAL. h i The general principles of the law appear to be this: that where a crime, in itself capital, is endeavoured to be com- mitted by force, it is lawful to repel that force by the death of the party attempting ; but to kill a person in resisting a tres- pass or misdemeanor, would be clearly manslaughter or murder. ' . * Excusable homicide is committed either by misadventure or in self-defence. Homicide by misadventure is where a man doing a lawful act, without any intention to hurt, unfortunately kills another ; as where a man is at work with an axe, and the head flies, off and kills a bystander, — for the act is lawful, and the effect is merely accidental. So, where a parent is moderately correct- ing his child, or a master his apprentice or scholar, or an oflicer punishing a criminal, and death ensues, it is only mis- adventure ; but if he exceed the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and occasion death, it is manslaughter at least, and may be murder, for the act of immoderate correction is illegal. Prize-Fiohtino. — As prize-fighting and sword-playing are unlawful, if either of the parties be killed such killing is manslaughter. And in general, if death ensue from any idle, dangerous, and unlawful sport, the slayer is guilty of man- slaughter. To teach and learn to box and fence are equally lawful — they are both the art of self-defence ; but sparring exhibitions are unlawful, because they tend to form prize-fighters, and prize-fighting is unlawful. Homicide in self-dfefence, from a sudden affray or quarrel, is ratlier excusable than justifiable in the English law. To excuse this species of homicide, it must appear that the slayer had no probable means, by fleeing or otherwise, to escape from his assailant. Formerly no man was held entirely free fi'om guilt who took away the life of another without permission of the law ; and it is said that both justifiable and excusable homicide were anciently punished by fine and forfeiture. The Consol. THE MAOISTKATB's MANUAL. 327 Stat. C. c. 99, 8. 90, oxprcBsly provides that " no piinitihmont or forfeiture shall bo incurred by any person who kills another by misfortune, or in his own defence, or in any other niiumer without felony." Felonious homicide is the killing of a human creature with- out justification or excuse, and' is either murder y manslaughter^ or suicide. (See under those heads respectively.) IMPRISONMENT. In the Penitentiary. — " The Provincial Penitentiary shall be maintained as a prison for the confinement and reformation of persons, male and female, lawfully convicted of crime before the duly authorized legal tribunals of this province, and sentenced to confinement for life or for a term not less than two years ; and whenever any offender is punishable by im- prisonment, such imprisonment, if it be for life, or for two years or any longer term, shall be in the Provincial Peniten- tiary : but this shall ngt prevent the reception and imprison- ment, in the said penitentiary, of any prisoner or prisoners sentenced for any period of time by any military or militia court-martial or military authority, under any military act." (Consol. Stat. C. c. 99, s. 100.) Felony NOT punishable with^Death, How punishable. — " Every person convicted of felony not punishable with death, shall be punished in the manner prescribed by the statute or . statutes specially relating to such felony; and every person convicted of any felony for which no punishment is specially provided, shall be kept at hard labour in the penitentiary for any term not less than two years, or be imprisoned in any other prison for any term less than two years." {Ih. s. 101.) When length of Imprisonment in discretion of the Court. — " When an offender is by law to be punished by imprison- ment for life or for any indefinite term of years, the length of such term shall be in the discretion of the court passing sen- tence ; and when so liable for a term not exceeding a certain li ill r If i^vrnm 328 THE MAGISTBATE'S MANUAL. number of years, the length of such term shall also be in the discretion of the court, within such limits (if any) as may be prescribed by any statute in that behalf." (Ih. s. 103.) "When imprisonment is to be awarded for any criminal oflfence, and no definite period is fixed by law, the term of such imprisonment shall always be in the discretion of the court passing the sentence, within such limits (if any) as may be prescribed by statute in that behalf." {lb. s. 104.) Imprisonment elsewhere. — "When the sentence of im- prisonment is for a term less than two years, such imprison- ment shall, if no other place be expressly mentioned, be in the common gaol of the locality in which the sentence is pro- nounced ; or if there be no common gaol, then in the common gaol which is nearest to such locality, or in some other lawful prison or place of confinement, other than the penitentiary, in which the sentence of imprisonment may be lawfully executed." {lb. s. 106.) From what Period Imprisonment is to be Reckoned. — " The period of imprisonment in the Provincial Penitentiary, in pursuance of any sentence, shall commence on and from the day of passing such sentence, whether the convict upon whom the sentence is passed be removed to the said peniten- tiary forthwith or be detained in custody in any other prison or place of confinement previously to such removal." — {lb. 8. 106.) Transportation abolished. — Offences formerly punished by transportation beyond the seas, are now punished by im- prisonment in the penitentiary. (See lb. s. 107.) Certain Assaults punishable wrrn Imprisonment. — "In case any person be convicted of any of the following offences as misdemeanors, that is to say : 1. Of an assault with intent to commit a felony; 2. Of an assault upon any peace oflicer or revenue oflicer in the due execution of his duty ; 3. Or upon any person acting in aid of such officer ; 4. Or of an assault upon any person with intent to resist or prevent the lawful apprehension or detainer of the party" so assaulting, or of THE magistrate's MANUAL. 329 any other person, for an offence for which such person is liable by law to be apprehended or detained ; 6. Or of an assault committed in pursuance of any conspiracy to raise the rate of wages, — the court may sentence the offender to be imprisoned for any term less than two years, and may also fine the offender, and require him to find sureties for keeping the peace." {Ih. s. 108.) Consecutive Imprisonment. — Whenever sentence is passed for felony on a person already imprisoned under sentence for another crime, the court may award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to .which such person had been previously sen- tenced, although the aggregate term of imprisonment may exceed the term for which such punishment could otherwise have been awarded.* (See ib. s. 109.) INNS AND INNKEEPERS. "What is an Inn.— = An inn may be described as a house of public entertainment, where provisions and beds are furnished to persons who apply for them ; and that whether it be called a hotel, or tavern, or temperance house. So long as it furnishes the accommodations of lodging a^d victuals, it comes within the legal description of an inn, and is subject to the same liabilities. Tavern-keepers and Emigrants — ^List of Prices. — Every keeper of a tavern, hotel or boarding house in a city, or in any town, village or place to which the Governor in council, by proclamation published in the Official Gazette^ declares that this section shall extend, who receives into his house as a boarder or lodger any emigrant within three months from his arrival in this province, shall cause to be kept conspicuously * When a person is convicted of two or more oifences in succession at the same time, and imprisonment is awarded where sufficient distress cannot be found, the correct practice is to make out immediately separate warrants of commitment on each conviction, the second warrant stating that the imprison- ment thereunder is to conimence and take effect upon the expiration of the first ; and the third, should there be one, on the expiration of the second. / 't 330 THE MAQISTRATIS'S MANUAL. V posted in the public rooms and passages of his house, and printed upon business cards, a list of the rates of prices which will be charged to emigrants per day and week for board or lodging, or both, and also the rates for separate meals ; which card shall contain the name of the keeper of such house, together with the name of the street in which it is situated and its number in such street." (Con. Stat. C. c. 40, s. 21.) " Every keeper of any such tavern, hotel or boarding house, neglecting or refusing to post a list of rates, or to keep business cards, or who charging or receiving, or permitting or suffering to be charged or received for boarding or lodging, or for meals in his house, any sum in excess of the rates of prices so posted and printed on such business cards, or omitting immediately on any emigrant entering such house as a boarder or lodger for the purpose of taking any meal therein, to deliver to such emigrant one of such business cards, shall upon conviction of an^ of the said offences be deprived of his license, and incur a penalty of not less than five dollars nor more than twenty dollars. {Ih. s. 21, sub. sec. 2.) . Tavern-keepers to have no Lien on the Effects of ant Emigrants for more than Five Dollars. — No boarding-house keeper or tavern-keeper shall have any lien on the effects of any emigrant for more than the sum of five dollars ; penalty for contravention not less than five and not more than twenty dollars. (See ih. s. s. 3.) Where Prosecutions shall be brought. — "All prosecu- tions for penalties under section twenty-one of this act may be brought at the place where the offender then is, before any magistrate having jurisdiction in such place, at the suit of any agent for emigration in the employ in this province ef Her Majesty, and the penalties to be recovered under the said sec- tion shall be paid to the emigration fund." " The magistrate before whom any such penalty is recovered may, in his discretion, award any part of the penalty to the party aggrieved by the infraction of law or breach of contract complained of, and may award costs against the offending THE magistrate's MAN PAL. ' 331 party, b^. in the ordinary cases of summary proceedings, and may also award imprisonment for a period not exceeding three months, to terminate on payment of any penalty incurred under the said clauses." {Ih. s. 28.) Ko Appeal. — " No conviction or proceeding under the four next preceding sections shall be quashed for want of form, or be removed by appeal or certiorari, or otherwise, into any of Her Majesty's superior courts of record in this province ; and no warrant of commitment shall be held void by reason of any defect therein, provided it be thereby alleged that the party has been convicted, and there be a good and valid conviction to sustain the same." {lb. s. 29.) IlfOCULAtlON. Penalty against Inooulatio.v. — " Any person producing or attempting to produce, by inoculation w^ith variolous matter, or by willul exposure to variolous matter, or to any matter, article or thing impregnated with variolous matter, or wilfully by any other means whatsoever, the disease of small-pox in any person in this province, shall be liable to be proceeded against, and convicted summarily before any two Justices; and for every such offence shall, upon conviction, be im- prisoned for any term. not exceeding one month." (Consol. Stat. C. c. 39, s. 1.) " Any licensed medical practitioner contravening the provi- sions of the act, his license shall, upon conviction, become null and void, whether he practice in Upper Canada or Lower Canada." (Ih. s. 2.) m.. /-• JURISDICTION OP JUSTICES IN MUNICIPALITIES. i!- i " Every city and town separated shall be a county of itself for municipal purposes, and for such judicial purposes as are herein specially provided for in the case of all cities, but for no other." (Consol. Stat. C. c. 54, s. 361.) . . .. 332 THE MAOISTBATE'S MANUAL. " 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 vil- lage, shall, ex officio, be Justices of the Peace for the whole county or union of counties in which their respective munici- pdities lie, and shall not be disqualified by being an attorney, solicitor, or coroner;" {Ih. s. 362.) • " Justices of the Peace for any town shall have the same property qualification and take the same oaths as other Jus- tices 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 qualification or to take any further oath to enable him to act as a Justice of the Peace." {II. 8. 363.) " When a town has been erected into a city, and the council of the city duly organized, every commission of the peace theretofore issued for the town shall cease." (Ih. s. 364.) "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 Justices 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 thereof exercised within the city." {Ih. s. 365.) " 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 inter- fere 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 tovm and penalties for refusal to accept office or to make the declaration of office in the town, as to which jurisdiction shall be exercised exclusively by the police magis- trate or mayor or Justices of the Peace for the town." (/J. s. 366.) - THE MAOISTBATE'S MANUAL. 333 " 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 by which the sheriff of a county may now do so." {Ih. s. 367.) ■ JUVENILE OFFENDERS. Persons op not more than 16 Years op Age coMMrrnNo CERTAIN OfPENCES MAY BE SUMMARILY CONVICTED BY TAVO JUS- TICES. — "Every person charged with having committed, or having attempted to commit, or with having been an aider, abettor, counsellor, or procurer, in the commission of any offence which is simple larceny, or punishable as simple larceny, and whose age at the time of the commission or at- tempted commission of such offence does not, in the opinion of the Justice before whom he is brought or appears, as is hereafter mentioned, exceed the age of sixteen years, shall, upon conviction thereof in open court, upon his own confes- sion or upon proof, before two or more Justices of the Peace for any district in Lower Canada, or city, county, or union of counties in Upper Canada, be committed to the common gaol or house of correction within the jurisdiction of such Justices, there to be imprisoned, with or without hard labour, for any term not exceeding three months ; or, in the discretion of such Justices, shall forfeit and pay such sum not exceeding twenty dollars a» the said Justices may adjudge." (Consol. Stat. C. c. 106, s. 1.) Dismissal.-^" If such Justices, upon the hearing of any such case, deem the offence not proved, or that it is not expedient to inflict any punishment, they shall dismiss the party charged on finding surety for his future good behaviour, or without sureties, and then make out and deliver to the party charged a certificate under the hands of such Justices, stating the fact of such dismissal." {Tb. s. 2.) FORM OF CERTIFICATE. of Her Majesty's Justices of the Peace for the (or, if a recorder, &c., under sec. 7, I, a of the — of , as the case may le\ do hereby certify, that day of ^ in the year of our Lord ^ at , in the TO WIT, on the \ of , • ) of the - m I 334 THE magistrate's MANUAL. said of , M. N. was brought before us the said Justices {or, me the said ) charged with the following offence, that is to say : (here $tate briefly the particulars of the charge) and that we the said Justices (or I, the said ) thereupon dismissed the said charge. Given under our hands (or, my hand), this day of . ' Case may be tried, &o., if Justices think fit. — " If such Justices be of opinion, before the person charged has made his defence, that the charge is from any circumstances a fit sub- ject for prosecution by indictment ; or if the person charged, upon being called upon to answer the charge, objects to the case being summarily disposed of under the provisions of this act, such Justices shall, instead of smnmarily adjudicating thereupon, deal with the case in all respects as if this act had not been passed." (lb. So 4.) Justices to give Persons charged the option of a Trial BY Jury. — " The Justices before whom any person is charged and proceeded against imder this act, before such pei'son is asked whether he has any cause to shew why he should not be convicted, shall say to the person so charged these words, or words to the like effect : " * We shall have to hear what you wish to say in answer to the charge against you ; but if you wish to be tried by a jury, you must object now to our deciding upon it at once.' "And if such person, or a parent or guardian of Buch person, then objects, such person shall be dealt with as if this act had not been passed." {lb. s. 5.) Power to Justices to hear and determine. — "Any two or more Justices of the Peace for any district in Lower Canada, or for any city, county, or union of counties in Upper Canada, sitting in open court, before whom any such person as afore- said, charged with any offence made punishable under this act, is brought or appears, may hear and determine the case under the provisions of this act." (lb. s. 6.) "Every person obtaining such certificate of dismissal as aforesaid, and every person convicted under the authority of this act, shall be released from all further and other pro- ceedings for the same cause." (lb. s. 9.) THE MAGISTRATE 8 MAKUAL. 335 Compelling Appearance. — " In case any person whose age is alleged not to exceed sixteen years be charged with any such offence, on the oath of a credible witness, before any justice of the Peace, such Justice may issue his summons or warrant to summon or to apprehend the person so charged to appear before any two Justices of the Peace, at a time and place to be named in such summons or warrant." {lb. s. 10.) Power to one Justice to remand or take Bail. — "Any Justice or Justices of the Peace, if he or they think fit, may remand for further examination or for trial, or suffer to go at large upon his finding sufficient sureties, any such person charged before him or them with any such offence as afore- said." {Ih. s. 11.) Condition of Recognizance. — " Every such surety shall be bound by recognizance to be conditioned for the appearance of such person before the same or some other Justice or Jus- tices of the Peace for further examination, or for trial before two or more Justices of the Peace as aforesaid, or for trial at some superior criminal court, as the case may be." {Ih. s. 12.) Recognizance may be enlarged. — " Every such recogni- zance may be enlarged from time to time by any such Justice or Justices, or court, to such further time as he or they may appoint ; and every such recognizance not so enlarged shall be discharged without fee or reward, when the party has appeared according to the condition thereof." {Ih. s. 13.) Application op Fines. — "Every fine imposed under the authority of this act shall be paid to the Justices who im- pose the same, or to the clerk of the recorder's court, or the clerk of the county court, or the clerk of the peace, as the case may be, and shall be by him or them paid over to the county treasurer for coimty purposes, if the same w^as imposed in Upper Canada ; and if it was imposed in any new district in Lower Canada, then to the sheriff of such district, as trea- surer of the building and jury fund for such district, to form part of the said fund ; and if it was imposed in any other district in Lower Canada, then to the prothonotary of such PI ■) 336 THE magistrate's MANUAL. district, to be by him applied, under the direction of the Governor in council, towards the keeping in repair of the court-house in such district, or to be by him added to the moneys or fees collected by him for the erection of a court- house or gaoi in such district, so long as such fees are collected to defray the cost of such erection." {Ih. s. 14.) Attendance op Wiinesses. — " Any Justice of the Peace shall, by summons, require the attendance of any person as a witness upon the hearing of any case before two Justices under the authority of this act, at a time and place to be named in such summons." (/J. s. 15.) . .t " Any such Justice may require and bind by recognizance all persons whom he considers necessary to be examined touching the matter of such charge, to attend at the time and place to be appointed by him, and then and there to give evi- 4ence upon the hearing of such charge." {Ih. s. 16.) " In case any person so summoned or required or bound as aforesaid, neglects or refuses to attend in pursuance of such summons or recognisance, then, upon proof being first given of such person's having been duly summoned as hereinafter mentioned, or bound by recognizance as aforesaid, either of the Justices before whom any such person ought to have at- tended may issue a warrant to compel his appearance as a witness." (7^.8.17.) " Every summons issued under the authority of this act may be served by delivering a copy thereof to the party, or to some inmate at such party's usual place of abode ; and every person so required by any writing under the hand or hands of any Justice or Justices to attend and give evidence as aforesaid, shall be deemed to have been duly summoned." (/J.S.18.) FORM OF CONVICTION. ^ , ) Be it remembered, that on the day of ^ in the year of > our Lord one thousand eight hundred and , at , in the to wit. ^ (jistrict of , (county or united counties, &c., as the case may ft«), A. 0. is convicted before us, J. P. and J. R., two of Her Majesty^s Justices of the Peace for the said district {or city, &c.), or me, J. S., recorder ^ of the of (or om the ease may he\ for that he the THE magistrate's MANUAL. 337 said A. 0. did (tpM\^y the offence and the time cmd place when and where the tame was committed^ as the case may be, but without setting forth the evidence), and we the said J. P. aud J. K. (or I the said S. J.) adjudge the said A. 0. for his said offence to be imprisoned in the (or to be im- prisoned in the , and there kept at hard labour) for the space of (or we, or I) adjudge the said A. 0. for his said offence to forfeit and pay (here state the penalty actually imposed)^ and in default of imme- diate payment of the said sum, to be imprisoned in the (or to be imprisoned in the , and there kept to hard labour) for the space of unless the said sum shall be sooner paid. Given under our hands and seals (or my hand and seal), the day and year first above mentioned. And the conviction shjill be good and effectual to nil intents and purpop!es. • '^ Defect of Form. — "No such conviction shall he quashed for want of form, or be removed by cerUoraH or otherwiBe into any of Her Mnjesty's superior courts of record ; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the part^-^ had been convif ted, and there be a good and valid conviction to sustain the same." (/J. 8. 20.) Convictions to be sent to Clerks of the Pkace. — " The Justices of the Peace before whom any person is convicted under the provisionfl of this act, shall forthwith transmit the conviction and recognizance lo the clerk of the peace for the district in Lower Canada, or for the city, county, or union of counties in Upper Canada, wherein the offence was com- mitted, there to be kept by the proper officer among the records of the court of General Quarter Sessions of the peace." {IK s. 21.) No Forfeitubb — ^Restitution. — "No conviction \mder the authority of this act shall be attended with any forfeiture ; but whenever any person is deemed guilty under the provisions of this act, the presiding Justices may order restitution of the property in respect of which such offence was committed, to the owner thereof or his representatives." {II, s. 23.) If such Property is not forthcoming. — " If such property be not then forthcomiiig, the same Justices, whether they award punishment or dismiss the complaint, may inquire into and ascertain the value thereof in money ; and if they think 22 • 338 THE MAGISTRATE'S MANUAL. proper, order payment of such sum of money to the true owner, by the person convicted, either at one time or by in- stalments at such periods as the court deems reasonable." (/&. s. 24.) Recovery op Penalties. — " Whenever any Justices of the Peace adjudge any offender to forfeit and pay a pecuniary penalty under the authority of this act, and such penalty is not forthwith paid, such Justices, if they deem it expedient, may appoint some future day for the payment thereof, and order the offender to be detained in safe custody until the day so to be appointed, unless such offender gives security to the satisfaction of such Justices for his appearance on such day; and such Justices may take such security by way of recognizance or otherwise, at their discretion." (Ih. s. 26.) CoMMrrrAL for non-payment. — " If at the time so appointed such penalty has not been paid, the same or any other Justices of the Peace may, by warrant under their hands and seals, commit the offender to the common gaol or house of correction witliin their jurisdiction, there to remain for any time not exceeding three months, reckoned from the day of such adju- dication ; such imprisonment to cease on payment of the said penalty." (76. s. 27.) -_ . .-,>;,. Expenses of Prosecution how to be PAro. — " The Justices of the Peace before whom any person is prosecuted or tried for any offence cognizable under this act, may at their discre- tion, at the request of the prosecutor or of any other person who appears on recognizance or summons to prosecute or give evidence against such person, order payment to the prosecutor and witnesses for the prosecution of such sums of money as to them seem reasonable and sufficient, to reimburse such prose- tjutor and witnesses for the expenses they have severally incurred in attending before them and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time therein, and to order payment to the constables and other peace-officers for the apprehension and detention of any person so charged." {Ih, s. 28.) THE magistrate's MANUAL. 339 If there be no Conviction. — " And although no conviction takes place, the said Justices may order all or any of the pay- ments aforesaid, when they are of opinion that the parties o any of them have acted hcm&Jidey {lb. s. 29.) Amount op Expenses, How ascertained and certified. — " The amount of expenses of attending before the examining Justices, and the compensation for trouble and loss of time therein, and the allowance to the constables and other peace- officers for their apprehension and detention of the offender, and the allowances to be paid to the prosecutor, witnesses, and constables for attending at the trial or examination of the offender, shall be ascertained by and certified under the hands of such Justices ; but the amount of the costs, charges, and expenses attending any such prosecution, to be allowed and paid as aforesaid, shall not in any one case exceed the sum of eight dollars." {Ih. s. 30.) Orders for payment. How to be made and upon whom. — " Every such order of payment to any prosecutor or other person, after the amount thereof has been certified by the proper Justices of the Peace as aforesaid, shall be forthwith made out and delivered by the said Justices or one of them, or by the clerk of the recorder's court, clerk of the county court, or clerk of the peace, as the case may be, unto such prosecutor or other person, upon such clerk being paid for the same the sum of twenty cents and no more, and shall be made upon the officer to whom fines imposed under the authority of this act are required to be paid over in the district, city, county, or union of counties in which the offence was com- mitted, or was supposed to have been committed, who upon sight of every such order shall forthwith pay to the person named therein, or to any other person duly authorized to receive the same on his behalf, the money in such order mentioned, and shall be allowed the same in his accounts." (Ih. s. 31.) Protection of Persons acting under this Act. — " For the protection of persons acting in the execution of this act, all actions and prosecutions to be commenced against any person 340 THE MAOISTIUTE's MANUAt. for anyilnng ilone in purBuanco of this act Bball be laid and tried in the district or circuit in Lower Canada, or in the county or union of counties in Upper Canada where the fact was committed, and ohall bo commenced within three months after the fact was committed, and not otherwiBO." (II. s. 32.) LA RCENY. DKFiNmoN. — Larceny has been defined to mean " the felon- ious taking the property of another without his consent, and against his will, with intent to convert it to the use of the caiceri >'' »r - '■ . •>. ■ ■ • < ■• . v* •' ' Of the Taking. — There must be an acttidl taking or sever- ance of the property from the possession of the owner. For, although the oflender has actually commenced the transaction which, unless prevented, would have ended in the theft, yet, if he has not begun to remove the property, he is only guilty of an attempt to commit the crime of larceny, and not of the crime itself It is not, however, necessary that the thief should succeed in carrying away the property ; the least removal is sufficient to complete the offence. Thus, where a person who had taken a horse in a close, with intent to steal him, was apprehended before he could get him out of the close, it was held that he was guilty of larceny. "Where the defendant drew a book about an inch from the prosecutor's pocket, but while the book was still about the prosecutor's person the prosecutor put up his hand, whereupon the defendant let the book drop back into the pocket, this was held to be a sufficient carrying away. Further, there must be an actual severance. Where goods in a shop were tied to a string, which was fastened by one end to the bottom of the counter, and a thief took up the goods and carried them towards the door as far as the string would permit and was then stopped, this was holden not to be larceny because there was no severance. It is not necessary that the taking should be by the very hand of the party accused. If the thief fraudulently prociire THE magistrate's MANUAL. 841 a person innocent of any felonious intent to take the property for hiit\, his offence will be the eiune au if ho had etolon it himself. Thus, where the thief directed the ostler of an iim to bring out a horse, which he pointed out as his own, and the ostler let out the horae for him to mount, but the thief was detected before he had time to mount, it was held that this was a sufiicient taking to constitute the crime of larceny. TiiK Takino must be Felonious. — SvI)i ,,£ thti mind oi his guilt. If the taking is accompanied 'aIiI) n«v bixXJumst »v-. v^ which sntla- factorily prove the guilty imcwiy—m^ for inwttw je, irtlic! j.i o^'orty is taken openly, or for a ieuiporarv yairpj-vse. and ; :ryrv/»,rd)^ returned, — the accused should be » ^^untod, r«llh'>i;;.';h '.he trcU- saction may amount to a tr«»'?pasg at law. '.U\ howevfiv., Hiq accused person took the goods onginaily with t?ie iutentioa s>f depriving the owner of them and of appropriadiig them I o \m own use, his afterwards returning them vv'ill not \>nrj:^o che offence. "Where two men took two licreeH ovit of a i-tiiljifi at night and rode them to a place at a coiiaiiliTabK) dlstr-nje and there left them, proceeding on their journey or. fool;, and the jury found that the horees were taken by the piMKdiors only in order to ride them and th^Vi huave tlicni, it was held that the taking was trespass and nrr. AaTv33riy ; eo if a man take the property of another by mieiake. siipposuig it to be his own, it is no larceny. . - . f . Taking u>n}jTit a claim of Right. — The circumstance of the property being taken on a bond fide claim of right, may also negative the intent to steal. Thus, if the o\yner of land upon which a horse has strayed take a horse which is damaging his property, it Vill be no felony, although the horse may be wrongfully taken; and the party aggrieved must seek ^ua remedy by action. In all cases where goods are allegcu to have been taken on a claim of right, if there is any fair ^/:p *\ V.'VA ./ 342 THE MAGISTRATE 8 MANUAL. w' tence of property or right in the prisoner, he should be acquit- ted ; but if the claim of right is manifesfly fictitious, as, for instance, if the prisoner state that the prosecutor gave the property to him, and the circumstances of the case are entirely inconsistent with such a statement, no attention should be paid toit. -" -• ■' - ' • ' . ■ ^ ■•■-- ^- '■'■ - ■ Lost Property. — With regard to property found, it has been observed, " The rule of law seems to be, that, if a man finds goods that have been actually lopt, or are reasonably supposed by him to have been lost, and appropriate them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But, if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny." What Property is the subject op Larceny. — Tliere must be a taking of such propef'ty as is the subject of larceny at law. Thus, at common law, things which savour of the realty, and are, at the time they are taken, part of the freehold, as min- erals, trees, corn, grass, fruits, buildings, things annexed to buildings, and the like, are not the subject of larceny until they have been severed from the freehold, either by some other person or by the thief himself on some former occasion, separ- ated by some interval from the time when he takes them away. But property of this description is protected by our statutes. Whose Property may be the subject op Larceny — Joint Tenajjts — Husband and Wife. — There must be a felonious taking of the property of another. Thus joint tenants or tenants in common of a chattel cannot be convicted of stealing such chattel from each other, inasmuch as each has a legal property in the chattel and a right of possession. So also a wife cannot commit larceny of the property of her husband, because in law they are considered as one perso», and she has a kind of interest in the goods. Neither can a stranger com- mit larceny of the husband's goods by the delivery of the wife, unless he be her adulterer. But if the husband bail the goods THE MAGISTRATE 8 MANUAL. 343 to a third person, as there will then be a possession in tlio bailee distinct from that of the husband, it may bo larceny if the wife take such goods with a felonious intent. • 4 A Man may steal his own Goods. — A man may, under certain circumstances, be guilty of larceny in stealing his own goods. Thus, if A. let goods to hire to B. and afterwards feloniously take the goods from B. with the intent to charge B. with the value thereof, or with intent to defraud the custom-house authorities, it is larceny. So if a part-owner of property steals it from the pei*son in whoso custody it is, and who is responsible for i^3 safety, he is guilty of larceny. Thus, members of friendly and other societies may be convicted of stealing the money of the society from the person with whom it is deposited, and who is answerable for it. Special ownership. — It is not necessary that the person from whom the property is stolon should be the absolute owner. It is sufficient if he has a special property, such as a tenant has in the trees and shrubs growing on the land of which he is tenant; or as a drover or grazier has in cattle which he has received to keep ; or a carrier in goods whi(;h he lias received to carry ; or generally, such^as any bailee has in goods which have been bailed to him. ' . The taking must be against the will op the Owner. — The taking of the goods must also bo without the consent of the oioiier, and against his will. Where the goods are taken without the knowledge of the owner, few questions can arise ; but gnmt difficulty is often experienced in dealing with cases in which it appears that the goods were taken by the delivery or consent of the owner, or some one having authority to deliver them. For the better understanding of these cases, it is necessary to have a clear perception of the different relations in respect to the property in a chattel, which may be occupied by the person who has that chattel in his keeping. First, the man who has a chattel in his keeping may have only the bare charge or custody of it, as a servant has of the goods of his master entrusted to his care. A pei-son occupying this posi- su THE MAGISTRATE'S MANUAL. I if '♦ tion is not considered in law to liave uuy property in tKe chattel, liifl po-ssession being regarded as the possession of his master. Secondly, a ma)) may have a chattel in his keeping, having received it from the owner for a cei*tain specified pur- pose : as a tailor has a piece of cloth which he has received to make into a coat, or a carrier has any chattel which lie has received to carry for the owner. Such a person is said to have possession of the chattels, but his right to that possession is limited by t]i? purpose for wliich he holds it. Tlius, speak- ing generally, the right of the tailor to the cloth wliich he has made up into a coat ceasea wh(in the cx)at is made and he has received the price of his labour. He has only a ftpecial pro- perty in the cloth, which Is liable to be determined on the completion of the purpose for \?^hich it was entrusted to him. Of ths AB,-5()n^rE ownership of Goods. — Lastly, a ma)> )nay have a eh,ifc^el in his keeping, having an absolute right to the possession of it against all the world. Such a pei'son is said to be the owner of the chattel iu question, and has the ausolute property in it. Further, inasmuch as the rights of those who may have a special or absolute property in the chattel are capable of existiug apart from the custody, a chattel inay be in the cliarge of A. as servant of B., who has a special pro- perty In it, while tlie absolute ownership, subject to B.'s right, may exist iu C. The importance of these distinctions lying in the fact that a dealing with the chattel may or may not amount to lan^eiiy, according to the interest in the chattel possessed by the person so dealing with it. WJiere tJie owner paHs with the custody only — Servants — Guests at an Inn. — If a person to whom a chattel is delivered has only the bare charge of the custody of it, and the legal possession reuiains in the owner, sucjh person may connnit larceny by a fraudulent conversion of the chattel to hi.s own use. Thus, a sei\ant may be convicted of stealiiig the pro- perty of his master, for he has only the charge or custody of it. A guest may bo guilty of larceny in taking a piece of plate set before him to drink from in a taven\, for he has only a liberty to use it, not a possession by delivery. THE MAGISTBATe's MANUAL. 345 It Las been laid clown generally, thai-, when the delivery of the property U made for a (jertain special and particnlar pur- pose, the possession is still supposed to reside imparted with in the first proprietor. But there is much difficulty in applying this general principle to tJ e particular circumstances, as the cases on the subject are not etisily reconciled. The better distinction seems to be that adverted to above, viz., that if the owner merely parts with the charge or custody of goods, which he may resume %t any moment, the person so receiving ihem has only a bare, limited use or charge, and may be convicted of larceny if he steal the goods ; but that, if the owner delivers the goods upon a contract, he thereby creates a special property in tliem, and the person receiving them has a distinct posses- sion, which falls within the class of cases next to be considered. Where the ovmer parts imth the possession, hut not 'lulth the property. — ^Where the owner delivers goods to another with intent to part with the possession of them, and to create a special property in the person to whom they are delivered, and the person receiving them feloniously converts them to his own use, witli intent to deprive the o\vner of them, his offence at common law will or will not be larceny, according to the circumstances attending the receipt and delivery, or the subse- quent conversion. Where possession is obtained hy frarui. — ^Where the delivery is obtained fraudulently, with intent to steal the goods, and the receiver subsequently convei*ts them to his own use, lie is guilty of larceny. The mode by which the possession of the goods is obtained is (Juite immaterial, provided only that the o>vner intends merely to part with the possession of the goods, and to confer nothing more than a special property in tliem ; that is, a right to the possession of them for a limited time, or for a particular purpose, and provided the accused party oljtains the goods fraudulently with intent to steal them. ' Wlicre the possession, is attained without fraud hy a tres- pass — Without a Im'pass — Breahl/ng hulk, — Bnt where the possession is obtained innoc^ently, — that is, Avhere the a(;cused pereon had no intention of stealing the goods at the time of 346 THE MAOISTBATE's MANUAL. ^ receiving them, — ^it becomes material to consider the circum- stances attending his conversion of them to his own use. If the possession is obtained by a trespass, the subsequent fraudu- lent appropriation of the property during the same transaction is a larceny. Thus, if A., driving a flock of sheep from a field, by mistake drives a sheep belonging to another person along with them, and discovers the fact, but nevertheless sells the sheep and appropriates the money, he is guilty of larceny ; but if the accused, having received the goods by the delivery of the owner, fraudulently sells them and pockets the money, without changing the condition in which the goods were at the time when he received them, he is not guilty of larceny. If, how- ever, before converting the goods to his own use, he has wrong- fully put an end to the contract existing between himseif and thp owner of the goods, he is liable to be convicted of larceny. The mode by which the contract is most frequently determined is by " breaking bulk," as it is called ; that is, by separating things delivered as a whole, and not intended to be separated. Thus, for instance, if a carrier who is entrusted with a bag of wheat to carry, fraudulently sells the bag of wheat and pockets the money, he is not guilty of larceny at common law ; but if he takes the wheat out of the bag, and then sells it with the like intent, he has committed the crime of larceny. This dis- tinction, although following naturally from the doctrine that there can be no larceny where there is no trespass, seems some- what too refined for the exigencies of ordinary life ; and it has been practically abolished in ordinary cases of larceny. Where the owner parts with the property as wdl as the pos- session. — Lastly, where the owner of goods delivers them to another, with intent not merely to part with the possession, but also with the property in the goods, there can be no larceny, however fraudulent the means by which such delivery was procured. i , \=. Of the Intent. — It is a part of the definition of larceny with which we started, that the goods must be taken with intent to convert them to the use of the taker. But this mtist be understood in a very wide sense, so that a taking with intent ^":U i THE magistrate's MANUAL. 347 to destroy will be sufficient to constitute larceny, if it be done to effect an object of supposed advantage to the party commit- ting the offence, or to a third person. ■ • • >■''< / ^ :; "Every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny WM before the distinction between grand and petty larceny was abolished ; and ever/ court whose power as to the trial of larceny was before such abolition limited to petty larceny may try every case of larceny the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and may also try all accessories to such larceny." (Con. Stat. C. c. 92, s. 19.) " Every person guilty of simple larceny, or 6f any felony hereby made punishably like simple larceny, shall (except in the ca^es hereinafter otherwise provided for) be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (/J. s. 20.) r Horse stealing and Cattle stealing. — " Any person who steals any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or wilfully kills any of such cattle with intent to steal the carcass, or skin, or any part of the cattle so killed, shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not exceed- ing fourteen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ih. s. 21.) Stealing Securities. — " Any person who steals any tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of this province or of the United Kingdom of Great Britain and Ireland, or of any British colony, or of any foreign state or colony, or in any fund of any body corporate, company or society, or to any deposit in any savings' bank, or who steals any debenture, deed, bond, bill, note, warrant, order, or other security what- i '•;■■ I: "tr 348 THE MACTSTRATE S StANUAL. I soever, for money or for paymeiil of moiioyp, wlietLcr of this province, or of Great Britain, or of any British colony, or of any foreign state or colony, or Avho steals any warrant or order for tlie delivery or transfer of any goods or valnable thing, shall be guilty of felony, of the same nature and in the same degree, and shall be punishable in the same manner, as if he Lad stolen any chattel of like value witli the share, interest or deposit to which the security so stolen relates, or with the money due on the svhat- ever, in respect of any act doJie by him, if at any time pre- vlouily to his being indicted for such offence he disclosed guci> an act on oath in consequence of tljie conipidsory process of a court of law or equity in any action, suit, or proceeding Im^fide instituted by any party aggrieved, or if he dis(;losed the same in an examination or depositioii before any cominis- sioners of bankruptcy." (/J. s. 25.) Stealing or FRAUDULicmxY taking Records, &c. — '^ Any person who steals, or for any fraudulent purpose takeb from its place of deposit for tJie time being, or from any person having the lawful custody thereof, or unlawfuU^^ and maliciously obliterates, injures, or destroys any record, wi'it, return, panel, process, interrogatory, deposition, ♦affidavit, rule, order, or warrant of attorney, or any original document whatsoever, of or belonging to any court of justice, or relating to any matter, civil or criminal, begun, depending, or terminated in any such court ; or any bill, answer, interrogatory, deposition, affidavit, order or decree, or any original docimient whatsoever, of or belonging to any court, or relating to any cause or matter begun, depending, or terminated in any such court, or any notarial minute, or the original of any other authentic act, shall be guilty of a misdemeanor, and shall be liable to any punishment which the court may award, as in the twenty-third section hereinbefore mentioned." {Ih. s. 26.) " In any indictment for such last-mentioned offence it shall not be necessary to allege that the article in respect of which the offence has been committed is the property of any person, or that the same is of any value." (/5. s. 27.) Stealing from Yessels wrecked, &c. — " Any person who steals any goods or merc^<»'idize in any vessel, barge, or boat of any description what: > IS -' v,\ ^1 \iA r, in any port of entry or dis- :;! 350 THE magistrate's MANUAL. charge, or upon any navigable river or canal, or in any creek belonging to or communicating with any such port, river, or canal ; or who steals any goods or merchandize from any dock, wharf, or quay adjacent to any such port, river, canal, or creek, shall be imprisoned in the penitentiary for any term not exceeding fourteen years nor less than two years, or be im- prisoned in some other prison or place of confinement for any term less than two years." {Ih. s. 28.) " Any person who plunders or steals any part of any ship or vessel which is in distress, or has been wrecked, stranded or cast on shore, or any goods, merchandize or articles of any kind belonging to such ship or vessel, shall be liable to any of the punishments which the court may award as hereinbefore last mentioned." {Ih. s. 29.) " In case any goods, merchandize, or articles of any kind, belonging to any ship or vessel in distress, or wrecked, stranded or cast on shore, as aforesaid, be by virtue of a search-warrant, to be granted as hereinafter mentioned, found in the possession of any person, or on the premises of any person with his know- ledge, and such person, being carried before a Justice of the Peace, does not satisfy the Justice that he came lawfully by the same, then the same shall, by order of the Justice, be forthwith delivered over to, or for the use of, the rightful owner thereof; and the offender, on conviction of such offence before the Justice, shall forfeit and pay such sum of money, not exceeding eighty dollars, as to the Justice may seem meet." {Ih. s. 30.) " If any person offers or exposes for sale any goods, merchan- dize, or articles whatsoever, which have been unlawfully taken, or which are reasonably suspected to have been so taken from any ship or vessel in distress, or wrecked, stranded or cast on shore as aforesaid, any person to whom the same are offered for sale, or any officer of the customs or peace officer, may seize the same, and in such event shall with all convenient speed carry the same, or give notice of such seizure, to some Justice of the Peace ; and if the person who offered or exposed the same for sale, being duly summoned by such Justice, does not THE magistrate's MANUAL. 851 appear and Batisfy the Justice that he came lawfully by such goods, merchandize or articles, then the same shall, by order of the Justice, be forthwith delivered over to or for the use of the rightful owner thereof, upon payment of a reasonable reward (to be ascertained by the Justice) to the person who seized the same ; and the offender, on conviction of such offence by the Justice, shall forfeit and pay such sum of mone;y, not exceeding eighty dollars, as to the Justice may seem meet.' {Ih. s. 31.) Stealing Railway Tickets, &c. — " If any person steals any ticket or order for a free or paid passage on any railway, or on any steam or other vessel, he shall be guilty of felony, and shall be imprisoned in any common gaol or prison, with or without hard labour, for any period less than two years." {Ih. s. 32.) Stealing Domestic Animals. — "If any person steals any dog, or steals any beast, or bird ordinarily kept in a state of confinement, not being the subject of larceny at common law, such offender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over* and above the value of the dog, beast or bird, such sum of money, not exceeding twenty dollars, as to the Justice may seem meet." {Ih. s. 33.) Stealing paets op Buildings, Fixtures, &c. — " If any per- son steals, or rips, cuts or breaks with intent to steal, any glass or wood-work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fix- ture, whether made of metal or other material, fixed in or to any building whatsoever, or any thing made of metal fixed in any land being private property, or in a fence to any dwelling house, garden or area, or in any square, street, or other place dedicated to public use or ornament, such offender shall be guilty of felony, and shall be punished in the same manner as in the case of simple larceny ; and in case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person." {Ih. s. 34.) " If any person^ steals any chattel or fixture let to be used by him or her, in or with any house or lodging, whether the i Iv ^ 852 THE magistrate's MANUAL. contract be entered into by liim or lier, or by her Imsband, or by any person on behtilf of him or her, or licr *iusbancl, siujh offender sliall be guilty of felony, and shall be punished hi tlie 8ame manner as in the case of simple larceny ; and in evei-y such case of stealing any chattel an indictment may be pre- ferred in the common form as for larceny, and in every such case of stealing any fixture, an indictment may be preferred in the name form as if the offender were not a tenanc or lodger, and ill either case the property may be laid in the r>wner or person letting to hire." (lb. s. 35.) » Stealing Trees, Shrubs, Vegktables, &o. — " If t*ny person steals, cuts, breaks, roots-up, or otherwise destroys or damages with inteui to steal, the whole or auy part of any tr'ie, sapling, or shrub, or any underwood, wheresoever the same may be growing, the stealing of such article or articles, or the injury done being to the amount of twenty cents at the least, buch offender, being convicted before a Justice of the Peace, sliall forfeit and pay over and above the value of the article or articles stolen, or the amount of the injury done, such a sum of money not exceeding twenty dollars as to the Justice may seem meet." (/J. s. 36.) " If any person steals or cuts, breaks or throws down with intent to steal, any part of any live or dead fence, or any wooden post, pale or rail, set up or used as a fence, or any stile or gate, or any part thereof respectively, such offender, being convicted before a Justice of the Peace, shall forfeit and pay over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not ex- ceeding twenty dollars as to the Justice may seem meet." {lb, S. 37.) ^.-. , , ;-,■;■-- -- : ; '. -■: '.-t " If the whole or any part of any tree, sapling, or shrub, or any underwood, Or any part of any live or dead fence, or any post, pale, rail, stile, or gate, or any part thereof, being of the value of forty cents at the least, is, by virtue of a search- warrant to be granted as hereinafter mentioned, found in the possession of any person, or on the premises of any person with his knowledge, and if such person, being carried before a _jii%i*(ns»^ THE magistrate's MANUAL. 853 m or any the rch- the t^cn re a Justice of the Peace, does not satisfy the Justice that he came lawfully by the same, he shall, on conviction by the Justice, forfeit and pay, over and above the value of the article or articles so found, any sum not exceeding eight dollars." {lb. s. 38.) " If any person steals, destroys, or damages with intent to steal, any tree, sapling, shrub, bush, plant, root, fruit, or vege- table production growing in any garden, orchard, nursery- ground, hot-house, green-house, or conservatory, such oifender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceeding twenty dollars as to the Justice may seem meet ; and if any person so convicted afterwards com- mits any of the said oflfences, such offender shall be guilty of felony, and shall be punished in the same manner as in the case of simple larceny." {Ih. s. 39.) " If any person steals, destroys, or damages with intent to steal, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed, not being a garden, orchard, or nursery- ground, such offender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over and above the value of the article so stolen or the amount of the injury done, such sum of money not exceeding four dollars as to the Justice may seem meet, and in default of payment thereof, together with the costs, if ordered, shall be committed to the house of correc- tion for any term not exceeding one month, unless payment be sooner made." (lb. s. 40.) Larceny by Clerks and Servants. — " If any clerk or ser- vant steals any chattel, money, or valuable security belonging to or in the possession or power of his master, such offender shall be imprisoned in the penitentiary for any term not ex- ceeding fourteen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {lb. &. 41.) . - ,;,^ 23 m 354 THE MAGISTRATE B HAKUAL. Lakceny by Bailees. — "If any person, being a bailee of any property, fraudulently takes or converts tbe same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, he, shall be guilty of larceny." {Ih, s, 55.) Restoration op Stolen Goods. — " If any person, guilty of such felony or misdemeanor as aforesaid, in stealing, taking, obtaining or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, be indicted for any offence by or on the behalf of the owner of the property, or his heir, curator, executor or adminiitrator, and be convicted thereof, the property shall be restored to the owner or his representative ; and the court before whom any such person has been so convicted, may from time to time award writs of restitution for the same property, or order the restitu- tion thereof in a summary manner." {Ih. c. 99, s. 88.) When restitution not to be made. — " If it appear before any award or order be made that any valuable security has been hon^ fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument, has been honO. fide taken or received by transfer or delivery by some person or body corporate for a just and valuable consideration, without any notice and without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, the court shall not award or order the restitution of such security." {Ih. s. 89.) As to the power of Recorders to issue such order for restitu- tion, see article, " Recorders' Courts," ^o*^. Advertising for Stolen Property. — If any person pub- licly advertises a reward for the return of any property which has been stolen or lost, and in such advertisement uses any words purporting that no question will be asked, or makes use of any words in any public advertisement purporting that a reward will be giv^n or paid for any property which has been stolen or lost without seizing or making- any inquiry after the THE magistrate's ma NT AL. 355 person producing such property, or promises or offers in any such public advertisement to return to any puwnl)roln 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, law or equity, at Toronto." — (Con. Stat. C. c. 109, 8. 7.) Inquiry as to Insane Prisoners. — " The chairman of the Quarter Sessions and another Justice, with the aid of two phy- sicians or surgeons, are empowered to inquire as to the'necessity of any person imprisoned under sentence, or on criminal charge, or on civil process ; and if it be duly certified by such Justices and physicians or surgeons that such person is insane, the Governor, upon receipt of such certificate through the provin- cial secretary, may direct by warrant under his hand and privy seal, that such person shall be removed to such public lunatic asylum or other proper receptacle for insane persons, as he may judge proper and appoint in that behalf." {Ih. s. 8.) " Every person so removed shall remain urder confinement as aforesaid until it has been duly certified to the Governor, through the provincial secretary, by two physicians or surgeons, that such person has become of sound mind ; wlier:;upon he may be set at large under the Governor's warrant, oi remanded to prison if his period of imprisonment have nol: expired." {Ih. s. 9.) Dangerous Lunatics to be confined by Warrant. — "Anj 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 Superior Court, if in Lower Canada, shall be one, may by war- rant under their hands and seals, '^i''~cted to the constables, or some of them, of any such city, town, village, township, parish, or place, cause ?ach person to be apprehended and kept safely locked up in some secure place within the district or county where such city, town, village, township, parish, or place lies, as such Justices under thei?* hands and seals direct and appoint." {10. 8. 10.) 4 II \m M li i?i iv- I ill 360 THE MAGISTRATE 8 MANUAL. Pbisoner becoming INSANE. — If axij person while imprisoned for any offence whatsoever, or for not finding bail to keep the peace, to answer a criminal charj^Cj or in consequence of any summary conviction or order, appears to be insane, any two Justices of the Peace, the chairman of the Quarter Sessions if in Upper Canada, or if in Lower Canada a Judge of the Supe- rior Court, shall, with the aid of two physicians or surgeons, enquire as to the insanity of such person ; and if duly certified by such justice and such physicians, &c., that such person is insane, the Governor, on the receipt of such certificate, through the Provincial Secretary, may by warrant direct such insane person to be removed to some proper public Lunatic Asylum. (See ih. s. 8.) Lunatic and his Lands how disposed of. — If the lunatic be not then residing in his legal settlement he may be sent there by warrant of two Justices, and the reasonable charges of his removal, maintenance and treatment during such restraint, for the time only his lunacy or madness continues, shall be satisfied and paid, — such charges being proved upon oath, — by order of two Justices as aforesaid, directing the treasurer of the muni- cipality where any goods, chattels, lands or tenements of such person may be to seize and sell so much tliereof, or receive so much of the annual rents, as may be necessary to pay the same, accounting at the next Quarter Sessions ; but if such person hath no estate over and above what is sufficient to main- tain his family, then such charges to be satisfied and paid by the municipality to which such person beloilgs : the order for such to be by two Justices directed to the treasurer. (See ib. s. 11.) Maintenance of Lunatics. — " In all cases where any person is, by virtue of the first, second, third, fourth, fifth and sixth sections of this act, kept in custody as a lunatic or insane per- son by order of any court, or by order of the Governor subse- quent thereto, any two Justices of the Peace of the district or county where such person is so kept in custody, of whom the chairman of the Quarter Sessions for the county, if in Upper Canada, or a Judge of the Superior A^^ourt, if in Lower Canada, THE magistrate's MANUAL. 361 shall be one, may, by the best legal evidence that can be pro- cured, inquire into and ascertain the circumstances of personal legal disability of such lunatic, the place of the last legal settlement, and the circumstances of such person ; and if it does not appear that he is possessed of sufficient property which can be applied to his maintenance, may make an order upon such city, town, village, township, parish or place where they adjudge him to be legally settled, to pay such weekly sum for his maintenance while in the place of custody which the court or Governor has appointed, as shall from time to time be fixed upon by the Governor, and by him directed in writing through the Provincial Secretary." {Ih. s. 13.) Settlement. — "Where such place of settlement cannot be ascertained, 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." \lh. s. 14.) - " If it appears that such person is possessed of sufficient property as aforesaid, then such Justices shall order and direct the 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." {Ih. 8. 15.) " The municipal corporation of the city, town, village, town- ship, parish, or place in which the said justices adjudge any lunatic to be legally settled, may appeal against such order to the General Quarter Sessions of the Peace to be holden for the district or county where such order has been made, in like manner and under like restrictions and regulations as against any other judgment, order or decision of a Justice or Justices, givin,^ reasonable notice thereof to the Clerk of the Peace of such district or county, who shall be respondent in such appeal, which said appeal the Justices of the Peace, assembled at the said General Quarter Sessions, are hereby authorised and empowered to hear and determine, in the same manner as other appeals to Conrtb of Quarter Sessions are now heard and determined in Upper or in Lower Canada respectively." {Ik s. 16.) I h 5* if >rA in * 11 :! yj m 362 THE magistrate's MANUAL. Who settled. — " Every person of full age who has been a resident and inhabitant of any 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, be deemed settled in such city, town, village, township or place." (/&. s. 17.) Destitute Lunatics. — The Clerk of the Peace shall, once in each year, lay before the grand jury of the Quarter Sessions, in each county, an account in detail of all sums of money expended during the last preceding twelve months, or necessary to be advanced during the next ensuing twelve months, for the purpose of maintaining and supporting insane destitute persons, received into the gaol of the county, and the said grand jury may at such Quarter Sessions present such just and reasonable sum as they in their discretion think necessary for the purpose of maintaining and supporting insane destitute persons, either in the gaol or some other place within the county, for the year next ensuing the said sessions, which presentment shall be made once in each year, and in each year the like account in detail of the moneys expended during the past year shall be laid before the grand jury as aforesaid. (Con. Stat. U. C, c. 122, s. 1.) How Money to be paid. — " The chairman of the Quarter Sessions may, from time to time, issue his warrant for the pay- ment of such sum of money to the amount, but not exceeding the amount, so presented, and such money shall be payable by the treasurer of the county out of the moneys of the county in his hands and unappropriated, and the account so laid before the grand jury from time to time, so far as ' he same has been approved of, and the said warrant, shall be a sufficient discharge and indemnity to all persons concerned in the expenditure of such sum of money." {lb. s. 2.) liUNATio Asylum, Private. — The Justices of the Peace in any county assembled in Quarter Sessions, may (if and when they think fit) grant a license to any person to keep a house for the reception of lunatics, or of any sex or class of lunatics, within such county. (Con. Stat. C. c. 73, s. 1.) THE magistrate's MANUAL. 363 ace m when , house natics, The Justices shall, at the first Quarter Sessions in every year after they have granted such license, appoint tliree or more Justices, and also one physician or more, to act as visitors of every house licensed for the reception of lunatics. {Ih. s. 2.) The sections 3 to 110 of said act give the visitors ample powers to enable them to ensure the proper treatment of patients. MACHINERY— ACCIDENTS FROM. To PREVENT Accidents from — Guards, &c., to be erected ON Steam-boats, &c. — " The owners of every steam-boat, steam-car, and steam-carriage, and of every mill or building in which machinery is used, shall erect good and substantial guards round such machinery, so as to prevent passengers and other persons on board of, or entering or being in the same respectively, from coming in contact with the machinery used therein or attached thereto." (Con. Stat. U. C. c. 79, s. 1.) Justices of the Peace to enter Mills, &c., and to examine, &c. — " It shall be the duty of every Justice of the Peace in the county or city in which he resides and usually acts as a Justice of the Peace, to enter into or upon all build- ings wherein machinery is erected, and to inspect and examine the machinery thereof or attached thereto ; and if upon such examination he finds that there are not proper guards erected, or that the guards used in and about such machinery are in- sufficient, such Justice shall notify the same to the owner or occupier of such building, and shall direct the necessary guards to be erected." {Ih. s. 3.) Collector or Justice to deliver Certificate of suf- ficienot of Guards, &c. — " In case, upon the inspection of any steam-boat, steam-car, or steam-carriage, or of any building wherein or whereto machinery is used or attached as aforesaid, it appears to the collector or Justice respectively inspecting the same that the guards erected or to be erected in compliance with this act are sufficiently safe and substantial, such collector or Justice shall deliver to the person in charge of such steam- sill .1.! ■ Jf': -111 ■^iss'^rU 364 THE MAOISTBATE S MANUAL. A boat, steam-carriage, or car, and to the proprietor or occupier of such building as aforesaid, a certificate to that eiFect ; and if sucli safe-guards are at all times kept in good and sufficient repair, such certificate shall, for six months from the date thereof, be a good and sufficient protection to the masters and owners and occupiers of such steam-boat, steam-carriage, or car and btiilding respectively as aforesaid, against any penalty to be incurred under the provisions of this act." {lb. s. 4.) Penalty. — " In case the master or person in charge of any steam-boat, steam-car, or steam-carriage, or the owner or oc- cupier of any building wherein machinery has been erected as aforesaid, neglects or refuses to comply with the directions of such collector or deputy-collector, or Justice of the Peace, as the case may be, he shall forfeit and pay for every such offence a sum not exceeding four dollars and the costs of conviction ; and in default of payment of such sum and costs, the offender shall, by a warrant under the hand and seal of such Justice, be sent to the common gaol of the county or city within which the offence was committed, for any period not exceeding thirty days." {lb. s. 5.) As to the malicious destruction of machinery, see article " Malicious Mischief," post. 1 u 'I ;S Mi 4 MANSLAUGHTER. " Every person guilty of manslaughter shall be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years, or shall pay such fine as the court may impose." Whether there can legally be an accessory to a manslaughter, seems doubtful. Definition. — Manslaughter is the unlawful killing of another upon a sudden heat of passion, without previous malice, ex- pressed or implied. If, upon a sudden quarrel, two persons fight, and one kill the other, it is manslaughter j and so it is THE magistrate's MANUAL. 366 if they upon such an occasion go out and fight in a field, for this is one continued act of passion. So, also, if a man be greatly provoked, as by pulling his nose, or by taking another in the act of adultery with his wife, and immediately kill the aggressor, it is only manslaughter. But in every case of homi- cide upon provocation^ if there be a suiRcient time for passion to subside, and reason to interpose, and the person so provoked afterwards kill the other, this is deliberate revenge, and amounts to murder. Manslaughter may also arise when, in the commission of some unlawful act, death ensues. As, if two pei*sons play at sword and buckler, which is an unlawful game, and one kill the other, it is manslaughter. So, when a person does an act lawful in itself, but in an unlawful manner, without due caution and circumspection, as, when a workman flings down a stone or piece of timber into the street and kills a man, this may be either excusable homi- cide, manslaughter, or murder, according to the circumstances under which the original act was done. If it were in a country village, where few passengers are, and he called out to all people to have a care, it is misadventure only ; but if it were in the thoroughfare of a city, where many people are continu- ally passing, it will be manslaughter, although he may have given loud warning ; and murder, if he knew they were pass- ing and gave no warning at all to them, being malice to all mankind. The distinction between murder and manslaughter will be well illustrated by the case of Francis Smith, who was indicted for murder in London, Engjar.d, January 13th, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun, with intent to apprehend the person who person- ated the ghost. He met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron McDonald, Mr. Justice Rooke, and Mr. Justice Lawrence were unanimously of opinion that the facts amounted to the crime of murder ; for the person who represented the ghost was only guilty of a misdemeanor, and no one would ' il' WW, mil hinji i 1 : I i M 866 TUB MAOISTRATE'S MANUAL. have had a right to have killed him, if he could not otherwise have been taken. The jury brought in a verdict of man- slaughter, but the court said they could not receive that ver- dict : if the jury believed the witnesses, the prisoner was guilty of murder ; if they did not believe them, they must acquit. Upon this they found a verdict of guilty. Sentence of death was pronounced, but the prisoner was reprieved. The cases adduced by Mr. Justice Foster have been cited as apt illustrations of the higher and lower degrees of homicide. " A person driving a cart or carriage happeneth to kill : if ho saw or had timely notice of the mischief likely to ensue, and yet drove on, it will be murder, for it xwas wilfully and deli- berately done. Here is the heart regardless of social duty, which I have already taken notice of. If he might have seen the danger, and did not look before him, it will be manslaugh- ter, for want of due circumspection. But if the accident hap- pened in such a manner that no want of care could be imputed to the driver, it will be accidental death, and the driver will be excused." In Hex V. Martin it was decided that causing the death of a child by giving it spirituous liquors, in a quantity unfit for its t«ider age, is manslaughter. MALICIOUS MISCHIEF. Malicious Injuries. — In order to constitute an oflFence within the meaning of the statute, the act must have been done wilfully. All damage done wilfully or maliciously to any property whatever, whether of a public or private nature, is punishable under the statute. The word " wilfully " must be understood as meaning purposely, as distinguished from in ignorance or by accident ; and if the damage be done from such a degree of carelessness as a reasonable person would not be guilty of, the party is liable to be proceeded against under this act, which is intended to give a more summary remedy than an action of trespass. The general principle is, that where a man commits an un- lawful act unaccompanied by any circumstances justifying its THE magistrate's manual. 367 commi98ion, it is a presumption of law that he acted advisedly, and with intent to produce the consequences which have issued. If, therefore, A. throw a stone at B., which breaks the window of C, this would be wilful damage within the meaning of the act. " No person," as observed by Chief Justice Tindall, " can shelter himself from punishment on the ground that the mischief he committed was wider in its con- sequences than he originally intended." It is not, however, necessary to prove malice against the owner of the property. If the act were done wilfully, it will bo presumed to have been done maliciously.* Demolishino Churches. — "If any persons, riotously and tumultuously assembled together to the disturbance of the public peace, unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy any church, chapel, or meeting-house, for the exercise of any mode or form of religious worship ; or any house, stable, coach- house, outhouse, warehouse, office, shop, mill, malthouse, hop- oast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof ; or any machinery, whether fixed or movable, prepared for or employed in any manufacture, or in any branch thereof, every such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for the term of his natural life, or for any other term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Con. Stat. 0. c. 93, s. 6.) Exhibiting a False Light. — "If any person exhibits any false light or signal, with intent to bring any ship or vessel into danger, or unlawfully does anything to the immediate destruction of any ship or ressel in distress, such offender shall be guilty of felony, and shall suffer death." {Ih. s. 6.) Destroying parts op Ships in distress. — " If any person unlawfully and maliciously destroys any part of any ship or * The sections relating to " arson" and "injuries to property from explosive substances," are left out in this place, having been already quoted under the respective heads of "Arson" and "Explosive Substances." \i m. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I Ui|21 125 ■tt ii 122 Sf 1^ 192.0 u L25 in 1.4 Hiotogra{M: Sciences CorporaliGn ^ # v :\ \ ^. 23 WIST MAIN STREIT WnSTIR,N.Y. MStO (716)I72-4S03 w ^ o^ 3C8 THE MAGISTRATES MANUAL. vessel in distress, or wrecked, stranded, or cast on shore, or any goods, merchandize, ox article of any kind belonging to such ship or vessel, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less tlian two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 10.) Destroying Plants, &c. — " If any person unlawfully and maliciously cuts or otherwise destroys any hop-binds growing on poles in any plantation of hops, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not exceeding four years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {lb. s. 14.) " If any person unlawfully and maliciously destroys or damages with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for dis- tilling, or for dyeing, or for or in the course of manufacture, and growing in any land open or enclosed, not being a garden, orchard, or nursery-ground, such offender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding four dollars as to the Justice seems meet." {lb. 8. 15.) IklAiMiNG Cattle. — " If any person unlawfiilly and mali- ciously kills, maims, or wounds any cattle, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {lb. s. 16.) Destroying Goods. — " If any person unlawfully and mali- ciously cuts, breaks, or destroys, or damages with intent to destroy or to render useless, any goods or article of silk, woollen, linen, or cotton, or of any one or more of those materials mixed with each other or mixed with any other ma- terial, or any frame-work knitted piece, stocking, hose, or lace respectively, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or THE MAGISTRATE 8 JkEANUAL. 309 ess, or progress of maiuifacture ; or unlawfully and maliciously cuts, breaks or destroys, or damages with intent to destroy or to render useless, any warp or sliute of silk, woollen, linen, or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or any loom, frame, machine, engine, rack, tackle, or implement, whether fixed or movable, prepared for or employed in carding, spin- ning, throwing, weaving, fulling, shearing, or otherwise manu- facturing or preparing any such goods or arti(!les ; or by force enters into any house, shop, building, or place, with intent to commit any of the offences aforesaid, such offender shall be guilty of felony, and shall bo imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 17.) Destroying Macuinery. — " If any person unlawfully and maliciously cuts, breaks, or destroys, or damages with intent to destroy or to render useless, any threshing machine, or any machine or engine whether fixed or movable, prepared for or employed in any manufacture whatsoever (except the manufacture of silk, woollen, linen, or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any frame-work knitted piece, stocking, hose, or lace), such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than two years, or in any o*her prison or place of confinement for any term less than two years." {Ih. s. 18.) . Breaking down Banks of Canals, &o. — "If any person unlawfully and maliciously breaks down or cuts down any sea bank or sea wall, or the bank or wall of any river, canal or marsh, whereby any land is, or is in danger of being, overflowed or damaged, or unlawfully and maliciously throws down, levels or otherwise destroys any rock, sluice, flood-gate, or other work on any navigable river or canal, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not exceeding four years, or in any other prison or place of confinement for any term less than two years." {Ih. s. 19.) «j- ill V. 5 :i^ i ■'i [lili^. 370 THE magistrate's MANUAL. " If any person unlawfully and maliciously cuts off, draws up or removes any piles, chalk, or other materials fixed in the ground and used for securing any sea bank or sea wall, or the bank or wall of any river, canal, or marsh, or unlawfully and maliciously opens or draws up any flood-gate, or does any other injury or mischief to any navigable river or canal with intent, and so as thereby to obstruct or prevent the carrying on, completing, or maintaining the navigation thereof, such offender shall be guilty of felony, and shall be imprisoned for any term not exceeding two years." {Ih. s. 20.) Destboying Bridges. — " If any person unlawfiiUy and mali- ciously pulls down, or in any wise destroys any public bridge, or does any injury with intent, and so as thereby to render such bridge or any part thereof dangerous or impassable, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not exceeding four years nor less than two years, or in any other prison or place of confine- ment for any term less than two years." {lb. s. 21.) Prostrating Gates, &c. — "If any person unlawfully and maliciously throws down, levels, or otherwise destroys, in whole or in part, any turnpike gate, or any wall, chain, rail, post, bar, or other fence belonging to any turnpike gate, or set up or erected to prevent passengers passing by without paying any toll directed to be paid by any act or ordinance relating thereto in force in .this province, or any house, building or weighing engine erected for the better collection, ascertainment, or security of any such toll, such offender shall be guilty of a misdemeanor, and shall be punished accordingly." (lb. s. 22.) Destroying Ponds and Dams. — " If any person unlawfully and maliciously breaks down or otherwise destroys the dam of any fish pond, or of any water which is private property, or in which there is any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or unlawfully and maliciously puts any lime or other noxious material in any such pond or water, with intent thereby to THE magistrate's MANUAL. 371 destroy any of the fish therein, or unlawfully and maliciously breaks down or otherwise destroys the* dam of any mill-pond, such offender shall be guilty of a misdemeanor, and be punished accordingly." {Ih. s. 23.) Desteoyino Trees, &c. — "If any person unlawfully and maliciously cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapling, or shrjib, or ,any under-wood, respectiveiy growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling house, such offender shall be guilty of a misdemeanor, and shall be punished accordingly ; and if any person unlawfully and maliciously cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapling, or shrub, or any under-wood respectively, growing elsewhere than in any of the situations hereinbefore mentioned, such offender (in case the amount of •the injury done exceeds the sum of four dollars) shall be guilty of a misdemeanor, and be punished accordingly." {Ih. s. 24.) " If any person unlawfully and maliciously cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapling, or shrub, or any under-wood, where- st)ever the same may be growing, the injury done being to the amount of twenty cents at the least, such offender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding four dollars as such Justice may award," (Ih. s. 25.) "If any person unlawfully and maliciously destroys or damages with intent to destroy any plant, root, fruit, or vege- table production, growing in any garden, orchard, nureery ground, hot-house, green-house, or conservatory, such offender, being convicted thereof before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding eight dollars as to the Justice may seem meet" {Ih. s. 26.) DBSTBOYmo Fences, &a — "If any person unlawfully and maliciously cuts, breaks, throws down, or in any wise destroys ii'ffi * hy i m m ti::. H y 372 THE MAGISTRATE 8 MANUAL. any fence of any description whatsoever, or any wall, stile, or gate, or any part thereof, such oifetider, being convicted before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding four dollars as to the Justice may seem meet." {Ih. s. 27.) Malicious Damage in general. — " If any person wilfully or* maliciously commits any damage or injury, or spoil to or upon any real or personal property, either of a public or private nature, for which no remedy or punishment is hereinbefore provided, such person, being convicted thereof before a Justice of the Peace, shall forfeit and pay such sum of money as may appear to tlie Justice to be a reasonable compensation for the damage, injury or spoil so committed, not exceeding the sum of twenty dollai-s."* {Ih. s. 28.) " In case of private property the sum of money in the last section mentioned shall be paid to the party aggrieved, except where such party has been examined in proof of the offence,* and in such case, or in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a Justice of the Peace under this act is hereinafter directed to be applied ; but nothing in that section contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of." {Ih. s. 29.) Railways, &c. — " If any person wilfully and maliciously puts, places, casts or throws upon or across any railway any wood, stonq or other inatter or thing, or wilfully and maliciously takes up, removes, or displaces any rail, sleeper, or other matter or thing belonging to any railway, or wilfully and maliciously turns, moves, or diverts any point or other machinery belong- * It might be questioned if a dog, beast or bird, when killed instantaneously by shooting or otherwise, whether the offence could bo proceeded against as for " crucltv to animals ; " but the Justice might certainly adjudicate under this section. There is no doubt that a dog is preperty of such a nature as to be the subject of an action p,t law for damages commensurate with its value, against a person illegally destroying it. THE magistrate's MANUAL. 373 ing to any railway, or wilfully and maliciously makes or shews, hides or removes, or omits to make or shew, any signal or light upon or near any railway, or wilfully and maliciously does or causes to be done, or omits or neglects, or causes to be omitted or neglected, any other matter or thing, with intent to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, or to endanger the safety of any person travelling or being upon such railway, such offender shall be guilty of felony, and shall be imprisoned in the peni- tentiary for any term not less than three nor more than seven years." {Ih. s. 30.) " If any person wilfully and maliciously casts or throws any wood, stone, or other matter or thing, or causes the same to fall or strike against, into or upon any carriage, engine, tender, or truck used upon any railway, with intent to endanger the safety of any person being in or upon such carriage, engine, tender or truck, such offender shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than three nor more than seven yeare." {Ih. s. 31.) Malice Defined. — "Every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence be committed from malice conceived against the owner of the property in respect of which it is committed or otherwise." {Ih. s. 33.) Enforcement of Penalties. — Section 37 authorizes any Justice, in summary convictions under this act, to commit an offender to gaol, on default of payment forthwith or within the time appointed by the Justice, for two months or less if the sum be under twenty dollars, for four months or less if over twenty and under forty dollars, and for any term less than six months if over forty dollars. Discharge. — In cases of "first conviction the Justice is autho- rized by section 38 to discharge the offender from the conviction without fine, on his making satisfaction to the "party aggrieved for damage and costs, or either, to be ascertained by the Justice. m. : \ , •I 11 374 THE magistrate's manual. Removing or Defacing Landmarks. — " If any person know- ingly and wilfully pulls down, defaces, alters or removes any monument so erected as aforesaid, such person shall be adjudged guilty of felony ; and if any pei*8on knowingly and wilfully defaces, alters or removes any other landmark, post or monu- ment, placed by any land surveyor to mark any limit, boundary or angle of any township, concession, range, lot or parcel of land, in Upper Canada or in Lower Canada, such person or persons shall be deemed guilty of a misdemeanor, and, being convicted thereof before any competent court, shall be liable to be punished by fine or imprisonment, or both, at the discre- tion of such court, such fine not to exceed one hundred dollars, and such imprisonment not to be for a longer period than tliree months, without any prejudice to any civil remedy which any party may have against such offender or offenders in damages by reason of such offence. But this shall not extend to prevent land surveyors, in their operations, from taking up posts or other boundary marks when necessary, after which they shall carefully replace them as they were before." {Ih. c. 77, s. 107.) Destroying Toll Gates. — "If any person wilfully and maliciously bums, breaks down, injures, cuts, removes, or destroys, in whole or in part, any toll-house, turnpike gate, wall, lock, chain or other fastening, rail, post, bar or other fence, belonging to any toll-gate or toll-house, set up, erected or used for the purpose of preventing the passing by such gate of persons, carriages or other property liable to the payment of toll at such gate, or any house, building, engine or weighing machine erected or used for the better ascertainment or security of any such toll, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished either by imprisonment in the provincial penitentiary for a term not exceeding three years nor less than two years, of by fine and imprisonment in the common gaol for any term less than two years, or at the discretion of the court before whom the offender is convicted." (Con. Stat. U. C. c. 49, s. 103.) By-Laws against. — " The council of every township, city, town and incorporated village may pa^d by-laws : THE MAGISTRATE 8 MANUAL. 375 " For preventing the injuring or destroying of trees planted or preserved for shade or ornament ; " For preventing the pulling down or defacing of sign-boards, and of printed or written notices." (Con. Stat. U.C. c. 54, s. 2G.) MARKETS. " The council of every city, town, and incorporated village may respectively pass by-laws for the following purposes : " For establishing markets ; " For regulating all markets established and to be established ; the places however already established as markets in such municipality shall continue to be markets, and shall retain all the privileges thereof, until otherwise directed by competent authority ; and all market reservations or appropriations here- tofore made in any such municipality shall continue to be vested in the corporation thereof ; "For preventing or regulating the sale by retail in the public streets of any meat, vegetables, fruit or beverages ; "For preventing or regulating the buying and selling of articles or animals exposed for sale or marketed in the open air ; " For regulating the place and mannc of selling and weighing butcher's meat, fish, hay, straw, fodder, %; ood, and lumber ; " For preventing the forestalling, regrating or monopoly of market grains, meats, fish, fruits, roots and vegetables ; " For preventing and regulating the purchase of such things by hucksters or runners living within the municipality, or within one mile from the outer limits thereof; " For regulating the mode of measuring or weighing, (as the case may be) of lime, shingles, laths, cord wood, and coal and other fuel ; " For imposing penalties for light weight, or short count, or short measurement in anything marketed ; "For regulating all vehicles, vessels and other things in which anything is exposed for sale or marketed in any street or public place, and for imposing a reasonable duty thereon, and establishing the mode in which it shall be paid ; ^1 H 37n THE MAGISTRATE 8 MANUAL. " For regulating the iifisizo of bread, and preventing the use of deloterious materials in making bread, and for providing for the seizure and forfeiture of bread made contrary to the by-law ; "For seizing and destroying all tainted and unwholesome meat, poultry, fish, or other articles of food ; " For selling, after six hours' notice, butchers' meat, distrained for rent of market stalls." (Con. Stat., U. C, c. 54, s. 204, sub-sees. 6-18.) MILL-DAMS. Millers to construct Aprons to their Dams. — " Subject to the provisions of the Fishery Act of the province of Canada, in case a mill-dam be legally erected on any stream down which stream lumber is usually brought, or in which stream salmon or pickerel abound, the owner or occupier of such dam shall construct and maintain a good and sufficient apron thereto, no less than eighteen feet wide by an inclined plane of twenty- four feet eight inches to a perpendicular of six feet, and so in proportion to the height where the width of the stream will admit of it ; and in case such stream or dam be less than fifteen feet wide, the whole dam shall be aproned in like manner with the same inclined plane ; and every such owner or occupier who neglects to constnict or maintain such apron, shall for such offence forfeit and pay yearly the sum of one hundred dollars ; one moiety thereof to Her Majesty for the public uses of the province, and the other moiety to any person who may sue for the same in any court of record." (Con. Stat. U. C. c. 48, s. 3.) Construction, &o., of Aprons, &c. — " Every owner or occu- pier of a mill-dam, at which an apron or slide is required to be constructed as aforesaid, shall, if necessary, alter, or, if not already built, shall construct such apron or slide so as to afford depth of water sufficient to admit the passage over such apron or slide of such saw-logs, lumber and timber as are usually floated down the streams or rivers whereon such dams are erected ; but any owner or occupier of any such dam may con- struct a waste-gat^, or put up brackets and slash-boards in, THE magistrate's MANUAL. 877 upon and across the apron for the purpose of preventing any unnecessary waste of water therefrom, and may keep the same closed when no person is ready and requires to pass or float any craft, himber or saw-logs over such apron or slide." {Ih. 8. 4.) Penalties. — " Every owner or occupier of any dam men- tioned in the fourth section of this act, who (if not already made and constructed) neglects or refuses to make and (construct and keep in repair an apron of the description therein men- tioned, shall pay a penalty of two dollars per day for every day of such neglect ; and such penalty shall be recoverable before any two Justices of the Peace for the county in which the oft'ence has been committed, on the oath of two credible wit- nesses ; and if not paid, shall be levied by distress and sale of the goodrt and chattels of the offender, by a warrant under the hand and seal of such Justices, or one of them, and shall be paid to the treasurer of the municipal corporation having jurisdiction in the locality where such dam is erected, for the general uses of the municipality." {Ih. b. 7.) Mill-dams in specified places. — County of Huron. — " Subject to the provisions of the Fishery Act, the owner or occupier of every dam or weir erected on any river or stream in any of the townships of Williams, McGillivray, Stephen, Hay, Stanley, Goderich, Colbome, Hullet, McKillop, Tucker- smith, Hibbert, Logan, FuUarton, Usbome, Biddulph, Blanch- ard, Downie, including the Gore of EUice, North East Hope, and South East Hope, or any other tracts of land which on the twenty-ninth day of March, one thousand eight hundred and forty-five, constituted the then district of Huron, shall, if the same has not been already done, construct and maintain, and if constructed shall maintain and keep in repair, a good and sufficient apron to such dam or weir, at least twenty-eight feet wide (if the dam or weir be of greater width, and if not, then of the same width as the dam or weir) and at least eight feet in length for every foot rise of such dam or weir, under a penalty of one dollar for each day during which the require- ments of this section are not complied with ; and such penalty shall be recoverable before any two Justices of the Peace for 1 , '« 1,-1 878 TUB MAOISTRATE's HANUAL. the county in wliich the offenco has been committed, on tlio oath of one credible witness ; and if not paid, may bo levied by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of such Justices or either of them ; one moiety of such penalty shall belong to Her Majesty, for the public use of the province, and the other moiety to the prosecutor." (lb. s. 8.) JRwer Moira. — " Subject to the provisions of the Fishery act, the owner or occupier of any dam on the river Moira or its tributaries, in the county of Hastings, dn which lumber is floated to market, shall construct and maintain, and if con- structed shall maintain and keep in repair, a good and sufficient apron to such dam, at least thirty-two feet in width (if the dam be of that or of greater width, and if not, then of the width of the dam) and at least five feet in length for every foot rise of such dam ; and the height of the dam at the place where the apron is constructed shall be at least two feet lower than the top of the said dam at any other place (unless* it occupy the whole width thereof as aforesaid) ; but if the rise of the dam be less than four feet, the height of the dam at the place where the apron is constructed shall not exceed one half its height at any other place." {Ih. s. 9.) " Every such apron must be constructed on the main chan- nel of the stream, and its highest part shall be one foot below the level of the dam at the place where it joins the same, under a penalty of twenty-five cents for each day the require- ments of this and the next preceding section are not complied with." (75. s. 10.) ' . ' .•4- The said penalty on the complaint may be recovered and enforced, on the oath of one credible witness other than the informer, before any two Justices for the county; one half penalty to Her Majesty and the other to the prosecutor. If not forthwith paid, it shall, by warrant of such Justices or any one of them, be levied by distress and sale of the goods and chattels of the offender. (See ih. s. 11.) • • - THE UA0I8TRATES MANUAL^ 879 MARRIAGE — SOLEMNIZATION OF. i Ministers op any denomination may solemnize Makrtaoe. — " Tlie ministers and clergymen of every church and religious denomination in Upper Canada, duly ordained and appointed according to the rites and ceremonies of the churches or denominations to which they respectively belong, and resident in Upper Canada, may, by virtue of such ordination or appoint- ment, and according to the rites and usages of such churches or denominations respectively, solemnize the ceremony of mar- riage between any two persons *not under a legal disipialifica- tion to contract such marriage." (Con. Stat. U. C. c. 72, s. 1.) No Minister to solemnize Marriage unless authorized BY License, or after publication of Banns. — No minister or clergyman shall celebrate tl;e ceremony of marriage unless authorized to do so by license under the hand and seal of the Governor, or unless the banns of marriage have been openly proclaimed in an audible voice on three separate Sundays, with the number of such proclamation, as being first, second and third. (See ib. s. 2.) No valid Objection, that ft was not in a Church or CiiAPEL. — " It shall not be a valid objection to the legality of a marriage, that'the same was not solemnized in a consecrated church or chapel, or within any particular hours." {Ib. s. 3.) "Every clergyman or minister who celebrates a marriage in Upper Canada, shall, if required at the time of the marriage by either of the parties, thereto, give a certificate of the mar- riage under his hand, specifying the names of the persons mar- ried, the time of the marriage, and the names of two or more persons who witnessed it, and specifying also whether the marriage was solemnized pursuant to license or after publica- tion of banns ; and the clergyman or minister may demand twenty-five cents for the certificate from the person requiring it." (/J. s. 4.) .... Minister to enter Marriages in a Book, and to make a YEARLY Return to the Registrar of the County. — " Every clergyman or minister shall, immediately after he has solem- nized a marriage, enter in a book, to be kept by him for the 380 THE MAGISTRATE 8 MANUAL. » purpose, a true record of the marriage ; and shall, on or before the first day of February in every year, return a certified list of all marriages by him solemnized during the year ending on the thirty-first day of December next preceding to the regis- trar of the county in which the marriages have taken place ; and shall, at the time of making the return, pay or transmit to the registrar one dollar as his fee thereon." {Ih. s. 5.) " In case of the death or removal of a minister or clergyman before making his annual return, his successor or any other person having the legal custody of the book referred to in the fifth section, shall return to the registrar a certified copy of all marriages therein recorded, and the registrar shall record the same as if the return had been made by the minister or clergy- man who celebrated the marriages." {Ih. s. 10.) Fines for neglecting to return Certified List. — " Every clergyman, minister, clerk, secretary, or other person, who in any year refuses or neglects to return the certified list required of him l)y this act on or before the firet day of February, shall forfeit for every day's delay after that day the sum of four dollars, which sum shall be recoverable with costs before any magistrate of the county in which the person resides, and shall be applied according to law." {Ih. s. 12.) MILITIA. The acts 27 Yic, c. 2, respecting .the " service and non- service militia," and 27 Yic, c. 3, respecting the "volunteer militia," are the consolidated acts that at present govern +he militia force of the province ; but, from their extent and liability to change, even any extended abstract of them, in a work of this limited size, is inexpedient. The Militia. — The Governor is' (by 27 Yic, c 2, s. 1) by virtue of his ofiice, commander-in-chief, and (s. 2) the militia consists of all the male inhabitants of the province of the age of 18 or upwards and under 60, not exempt or disqualified by law. The militia are (s. 3) divided into three classes, to be called respectively first class, second class, and third class service TUE magistrate's MANUAL. 381 men. Fii-st class are those of 18 but under 45, who are unmarried, or widowers without children ; second class, those also between 18 and 45, who are married men or widowera with children ; third class or " reserve," who are 45 but under 60. Exem^ytlons. — Section 4 enumerates the functionaries who are wholly and in .certain cases exempt. Dlvislona. — Each county in the province (by s. 5) constitutes a military division. Enrolment. — The mode of enrolment in Upper Canada is (by 8. C) by the annual returns of the mimicipal assessors, com- mencing with 1864, who are required to add to their assessment roll a classified list, transmitting a copy of the same to the county clerk, who (s. 7) is required within fourteen days after receipt of such to prepare a militia roll classified as before mentioned and verified on oath before a Justice of the Peace. Such roll to be filed in the oflice of the clerk of the peace. The service enrolment for Lower Canada is (s, 10) similarly provided for. Calling out MiLniA. — The commander-in-chief may (s. 17) call out the whole or any part thereof for actual service when in his opinion there is war, invasion, insurrection, or danger of any of them. JusTicis OP the I*eace required to billet (s. 70). — The com- manding oflficer of any troops on inarch shall require a Justice of the Peace to billet — such Justice being required immediately to do so and to facilitate their march ; and the inhabitants are bound to receive them. Billb:tino Allowance (s. 71) — OflScers are not obliged to pay, but householders on whom non-commissioned ofticers and pri- vates are billeted will be paid a daily rate of 10 cents for each man, for each cavalry soldier and his horse at the rate of 25 cents. Every four days the oflicer receiving the men's pay shall out of the amount thereof first pay these accounts. No Justice being an officer to billet or quarter Troops (s. 71). — No Justice of the Peace having any military oflice or commission, shall, directly or indirectly, be concerned in billeting any of the men under his immediate command. 3S2 THE UAOISTBATE's MANUAL. Jfstioe may require persons to furnish carriages, &o., for Troops (s. 76.) — ^When troops are cantoned any Justice of the Peace, on receiving an order from the commanding officer, shall issue his warrant to persons possessed of carriages, horses, or oxen, for such number as may be needed ; and if after such warrant any owner refuses, then such may be impressed for the BOTvice, and be paid for at the usual rate of hire. Boats, Railways, &c. (s. 77). — In cases of emergency, any Justice of the Peace, of and in the locality, may also issue his warrant for railway cars, engines, boats, &c., in the same way. Penalties under this Act how recoverable (s. 95). — Penalties are recoverable with costs on the evidence of a credi- ble witness on complaint or information before one Justice of the Peace to the amount of ten dollars, if over ten dollars before two Justices ; and (by s .96) in case of non-payment, by imprisonment. Bonds to the Crown under this Act (s. 104). — Bonds to the Crown under this act may be entered into before any Justice of the Peace. The Volunteer Miliha. — The Governor is (by 27 Yic. cap. 8, s. 1) also, by virtue of his office, commander-in-chief; and (s. 2) may raise a volunteer force not exceeding 35,000 men. Uniform (s. 12). — " The uniform, clothing, &c., of volunteers are exempt from seizure. Each non-commissioned officer or man who fails to keep such in proper repair, or who may wear the same on other occasions than when on military duty, shall incur a penalty for each offence of five dollars." Volunteers dbbtroyino Property (s. 44). — " If any person pawns, destroys, sells or damages, or negligently loses any pro- perty or thing issued to him or in his possession as a volunteer, the value thereof shall be recoverable from him with costs, besides being liable to a penalty not less than five dollars nor more than twenty dollars, with or without imprisonment not exceeding six months. THE MAGISTBATE 8 MANUAL. 383 Persons bitting, &o. (s. 45) — "Any person knowingly bnying, or having in his possession, or keeping without satisfactorily accounting for, any arms, clothing, &c., being the property of the crown, shall be liable to a penalty of not more than fifty dollars, nor less than twenty-five dollars, and to imprisonment not exceeding six months, with or without hard labour. Damaging Targets or Butts, &c. (s. 46). — "Any person wilfully damaging any butt or target, or who searches for bul- lets, or disturbs the soil forming such butt or target, is liable to a penalty not exceeding twenty dollars, with or without im- prisonment. H 1 ■ f, . H Jin MINORS iLND APPRENTICES— OFFENCES RELATING TO. The term " Apprentice" is derived from the French word aj^rendre^ to learn, and is understood to be a person under twenty-one years of age bound by an indenture to any master mechanic, farmer, or other person carrying on a trade or call- ing, for a term not to exceed beyond the minority of the apprentice. Complaints by Apprentices against Masters. — " Any Jus- tice of the Peace, mayor or police magistrate, on complaint made before him on oath by an apprentice against his master for refusing him necessary provisions, or for misusage, cruelty, or ill-treatment, shall summon the master to appear before him to answer the complaint, and on conviction shall levy on the offender a fine not exceeding twenty dollars, and issue a warrant of distress to collect the same and the costs ; and in default of satisfaction of the distress, shall imprison the offender in any common gaol for a term not exceeding one month, unless the fine and costs be sooner paid." (Con. Stat. U. C. c 76, 8. 9.) By Masters against Apprentices. — " Any Justice, mayor or police magistrate shall also, on complaint of a master against his apprentice for refusing to obey his commands, or for waste or damage to property, or for any other improper conduct, cause the apprentice to come before him, and shall hear and 384 THE magistrate's MANUAL. determine the complaint, and, on a conviction, order sucli apprentice to be imprisoned in a common gaol or house of correction for a term not exceeding one month." {Ih. s. 10.) Apprentice deserting his Master's Service. — " In case any apprentice absents himself from his master's service or employ- ment before the time of his apprenticeship expires, he may at any time thereafter, if found in Upper Canada, be compelled to serve his master for so long a time as he so absented himself, unless he makes satisfaction to his master for the loss sustained by such absence." {Ih. 8. 11.) How Complaints may be heard. — "In case an apprentice refuses to serve as above required, or to make such satisfaction to his master, or to obey the lawful commands of his master, or in any other way refuses or neglects to perform his duty to his master, and if the master, or his overseer or agent, com- plains on oath to a Justice of the Peace, mayor, or police magistrate, either in the county, city or town where the master resides, or in any county, city or town where the absconding apprentice is found, such Justice, mayor or police magistrate shall, by warrant under his hand and seal, cause the apprentice to be apprehended and brought before him, or before some other Justice of the Peace ; and such Justice upon hearing the complaint shall determine what satisfaction shall be made by the apprentice to his master ; and in case the apprentice does not give or make such satisfaction immediately, or in case the satisfaction be of such a nature as not to admit of immediate performance, if he does not give sufficient security to make such satisfaction, then the Justice, mayor, or police magistrate shall commit the apprentice to the common gaol or house of correction of the county, city or town, for any time not exceed- ing three months ; but such imprisonment shall not release the apprentice from his obligation to make up the lost time to his master." {Ih. s. 12.) Limitation of Proceedings. — "Where the apprentice has not left Upper Canada, or having left it has returned thereto, the master shall not proceed against him under this act, except THE magistrate's MANUAL. 385 m-i witliin three years next after the expiration of the term for which the apprentice contracted to serve, or next after his return, as the case may be." {Ih. s. 13.) Penalty for harbouring absconding Apprentices. — " Any person who knowingly harbors or employs an absconding apprentice, shall pay to the master of the apprentice the full value of the apprentice's labor, and such value shall be what the master "would have received from the labor and service of the apprentice if he had continued faithfully in his master's service ; and the master may recover the same in any court having jurisdiction where the apprentice has been employed, or where the master resides." {lb. s. 14.) Appeal. — " Either party may appeal from the decision of a Justice^ mayor or police magistrate under this act, in manner provided for by the act respecting appeals in cases of summary conviction." {lb. s. 16.) Jurisdiction. — "The court of Quarter Sessions shall have a concurrent primary jurisdiction over offences^ committed against this act." {lb. 6.17.) " When that court is called upon to adjudicate in any matter arising under this act, it shall, in addition to the other powers of the court, have power, in any case where it appears neces- sary for the full administration of justice, to annul the ap- prenticeship, and to compel the parties to the indenture of apprenticeship to deliver the same up to be cancelled, and the court may make such further order as the circumstances require." {lb. s. 18.) Application of Fines. — "All fines imposed and collected under this act shall be paid to the chamberlain of the city, or to the treasurer of the county or town respectively where the offence was committed." {lb. s. 19.) ' ^^ MISDEMEANOR. Defined. — The word "misdemeanor" in its broad sense is applied to all those crimes and offences for which the law has not provided a particular name, and which are punishable, 25 i 886 THE MAOISTBATB'8 MAinJAL. according to the degree of the offence, by fine or imprison- ment, or both. In its more confined sense it is used to denote an indictable offence less than felony, and which (unless specially provided for by the act of parliament creating the offence) is not the subject of the summary jurisdiction of the Justices. Every attempt to commit a felony or misdemeanor, whether a statutable or a common law misdemeanor, or to incite another person to the commission of an indictable offence, whether felony or misdemeanor — unless, as for instance, in attempt to commit murder, — the statute has made the attempt a felony. Defendant in Misdemeanor not allowed to postpone TbL^ by mPABLANCE IN THE QuEEN's BeNOH OB CoMMON Pleas. — " Persons prosecuted in the courts of Queen's Bench or Common Pleas, by information there filed, or by indictment there found, or removed into such court, appearing either in person or by attorney, such defendant shall not imparl to a following term, but shall plead or demur thereto within four days : in default, judgment may be entered for want of plea." (Con. Stat. U. C. c. 108, s. 1.) Time mat be allowed upon cause shown. — The court, on sufficient cause shewn for that purpose, may allow further time. (See ib. s. 2.) Traverse abolished. — It is provided that no person pro- secuted shall traverse or postpone trial ; but if the court, on application, is of opinion that further time ought to be allowed, it may adjourn the trial, binding over the prosecutor and the witnesses to attend. (See ih. s. 3.) Delay of Trial. — " In crown prosecutions for misdemeanor not brought to trial in twelve months after plea of * not guilty,' the court, after twenty days' notice of application has been given to the attorney or solicitor-general, may make an order authorizing the defendant to bring on the trial, unless a nolle prosequi be entered to such prosecution." (Ih. s. 4.) .- 1. THE MAOISTBATE^S MANUAL. 387 MUTINY. Nothing contained in the criminal law of Canada shall alter or affect any of the laws relating to the government of Her Majesty's land or naval forces. (See Con. Stat. G. c. 90, s. 2.) MURDER. DEFmrrioN. — Murder is defined, or rather described, by Sir Edward Coke to be " when a person of sound memory and discretion unlawfully killeth any reasonable crea'^iure in being, and under the King's peace, with malice aforethought, either expressed or implied." Malice. — Malice aforethought, by which is meant pre- meditated hatred of the deceased or destructive intention, is the great criterion by which murder is distinguished from every other kind of homicide, and may be either expressed or implied. Express malice is not deliberate intention to take away the life of another, which is manifested by external signs ; by lying in wait, menances, former grudges, or concerted schemes, to do him personal harm. This description takes in the case of duelling. If one kill another in a deliberate duel, under provocation of charges against his character, however grievous, it is murder in him and in his second, and also in the second of the deceased ; and' the bare incitement to fight, though under such provocation, is a high misdemeanor. If two or more 'come together to do an imlawful act, of which the consequence may be bloodshed, — as to maltreat a person, commit a not, or rob a house, and one of them kill a man, it is murder in them all, because of the unlawful act, — the evil intended aforethought. Implied malice is that inference which arises from the nature of the act, though no direct malice can be proved ; as where a man deliberately poisons another, the law presumes malice, though no particular enmity can be established. So, too, in a deliberate duel, it is no answer to a charge of murder, as Justice Fatteson told the jury, to say that it was done solely to vindicate reputation, if time has intervened for reflec- ii 388 THE MAGISTRATE 8 MANUAL. n ' tion. Malice will be inferred, though no evidence is adduced of particular ill-will towards the deceased. Again : if a master refuse his apprentice necessary food, or treat him with such continued harshness and severity that his death is occasioned thereby, the law will imply malice, and the offence will be murder. So, if a prisoner die by the cruelty or neglect of the gaoler, the party offending is criminal in the same degree. If a man kill another suddenly, without a considerable pro- vocation, the law implies malice ; but if the person provoked had unfortunately killed the other, by beating him in such a way as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious be- haviour as to adjudge it only manslaughter, and not murder. If one, intending to commit a felony, undesignedly kill a man, it is murder. So, if a person give a woman with child a potion to procure abortion, and it operate so violently as to kill the mother, this is murder in the person who gave it. If two persons incite each other to commit self-murder to- gether, and the means employed to produce death take effect upon one only, it is murder in the survivor. Statute. — " Every person guilty of murder, or of being an accessory before the fact to murder, shall suffer death as a felon ; and every accessory after the fact to murder shall be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less 'than two years." (Con. Stat. C. c. 91, s. 2.) Poisoning, &c., with intent to Murder. — "Any person who administers to, or causes to be taken by any person, any poison or other destructive thing, or stabs, cuts, or wounds any person, or by any means whatsoever causes any bodily injury dangerous to life to any person, with intent, in any of the cases aforesaid, to commit murder, shall be guilty of felony, and shall suffer death." (/J. s. 5.) Felonious ati'empt. — " Any person who attempts to ad- minister to any person any poison or other destructive thing, or shoots at any person, or by drawing a trigger, or in any THE magistrate's MANUAL. 3S9 other manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit tlie crime of murder, shall, although no bodily injury be effected,, be guilty of felony, and shall be imprisoned in the peniten- tiary for the term of his natural life, or for any term not less than .two years, or be imprisoned in any other prison or place of confinement for any term less than two years."* {Ih. s. 6.) Rescue op Murderers. — " If any person by force sets at liberty, or attempts to rescue or set at liberty, any person out of prison, who has been committed for or found guilty of murder, or rescues or attempts to rescue any person convicted of murder going to execution or during execution, such offender is guilty of felony, and shall suffer death ; and any accessory before the fact to any such offence is guilty of felony, and shall suffer death." (Con. Stat. U. C. c. 97, s. 4.) NUISANCE. A public or common nuisance is such an inconvenient or troublesome offence as annoys the whole community in general, and not merely some particular person ; and therefore this is indictable. The existence of the matter as a publio nuisance depends on the number of persons annoyed. A nuisance near a highway, whereby the air thereabouts is corrupted, is a public nuisance. Making great noises, or keeping dogs which make noises, in the night, is said to be indictable. So the keeping of hogs in a town is a nuisance by statute (2 W. & M. sess. 2, c. 8, s. 20) and at common law. If a noxious trade is already established in a place remote from habitations and public roads, and afterwards houses are built or roads made in the neighbourhood, the party is entitled to continue his trade, for it was legal before the erec- tion of the houses and making of the road. * Endangering the life of any person by setting fire to the building or vessel containing such person, constitutes the capital felony of " arson," already treated of above, under that head. {Ante, p. 141.) 390 TffE magistrate's MANUAL, No length of time will legitimatize a nnisance, and it matters not how long the practice has prevailed. All nuisances may be classed under one or other of the fol- • cving heads: — Trades producing noxious and offensive smells, carried on in a populous neighbourhood, as tanneries, breweries, slaughter-houses, gas works, &c. ; cornipting and fouling the public waters, as reservoirs, streams, &c. ; acts tending to pro- duce public disorder, as common rope-dancing, and common gaming-houses (see article " Gaming," atite, p. 295) ; acts of public indecency, as bathing in a public place, or indecent expo- sure in a public place, as in an omnibus (but such act must have been seen by many persons : see article " Public Morah" post) ; keeping disorderly inns, which collect a crowd of drunkards and rioters, to the disturbance of the neighbourhood ; keeping bawdy-houses ; keeping dangerous animals, as keeping a fierce bull in a iield through which there is a footway ; exposing a person having a contagious disease, as small-pox, in a public place ; mixing unwholesome ingredients in provisions, as chalk or alum in bread, &c. Disorderly Inns. — " The mayor or police magistrate of a town or city, with any one Justice of the Peace having juris- diction therein, or the reeve of a township or village, with any one Justice of the Peace having jurisdiction in the township or village, upon complaint made on oath to them, or one of them respectively, of riotous or disorderly conduct in any inn or tavern, ale or beer house, situate within their jurisdiction, may summon the keeper of the inn, tavern, ale or beer house, to answer the complaint, and may investigate the same summarily, and either dismiss the complaint with costs to be paid by the complainant, or convict the keeper of having a riotous or disorderly house, and annul his license, or suspend the same for not more than sixty days, with or without costs, as in their discretion may seem just." (Con. Stat. U. C. c. 54, s. 264.) Bawdy House or other disorderly House. — Any person acting or appearing as master or mistress, or as having the care or management of any such house, or being an inmate or habitual frequenter of any disorderly house, house of ill-fame, TIIE MAGISTRATE S MANUAL. 391 lattera lie fol- jmells, weries, ng the to pro- Dinmon acts of it expo- ist have unkards keeping p a llerce posing a a public . as chalk •ate of a Ing juris- |with any 'nship or of them ly inn or ion, may house, to immarily, f d by the liotous or same for in their \. 264.) ly person Ig the care Inmate or ill-fame, or bawdy house, may be charged before any Justice with being guilty of any of the above offences, and may be by said Justice remanded before the nearest Police Magistrate, in like manner in all respects as a Justice is authorised to remand a party accused for any indictable offence to a court of competent jurisdiction. " Where any person is charged before any Justice or Justices of the Peace with any offence mentioned in this act, and in the opinion of such Justice or Justices the case may be proper to be disposed of by a recorder, or by an inspector and superin- tendent of the police, or by a police magistrate, as herein pro- vided, the Justice or Justices before whom such person is so charged may, if he or they see fit, remand such person for further examination before the recorder, or before the inspector and superintendent of the police of the nearest city, or before the nearest police magistrate, in like manner, in all respects, as a Justice or Justices are authorized to remand a party accused under the general act respecting the duties of Justices of the Peace out of sessions in like cases." (Con. Stat. C. c. 105, s. 18.) " The council of every county, city, and town may pass by- laws for suppressing tippling houses and houses of ill-fame."* (75. c. 54, s. 282.) Mischievous Dogs. — A mastiff going in the street unmuzzled, from the ferocity of his nature being dangerous and cause of terror to Her Majesty's subjects, seems to be a common nuisance, and consequently the owner may be indicted for suffering him to go at large. And it was ruled that if any dog has once bitten a man, and the owner, having notice thereof, keeps the dog and lets him go about or lie at his door, an action will lie against him at the suit of the person bitten, though, it happened by his treading on the dog's toes ; for it was occasioned by his not killing the dog on the first notice, and the safety of the Queen's subjects ought not afterwards to be endangered. * It is also clearly agreed that keeping a bawdy house is a common nuisance, as to endanger the public peace by drawing together dissolute and debauched persons. As such, it is indictable. i h ao2 THE IfAOISTRATE H MANUAL. Bv-LAW8 AOAIirST NciSANCES IN CiTIES, T0WN8, AND IncoKPO- BATEi) Villages. — " Tho council of ovory city, town, and incorporated village may respectively pass by-laws for the following purposes: — " I^or itreventing or regulating the bathing or washing the person in Bny public water in or near the municipality ; " For preventing and abating public nuisances ; "For preventing or regulating the construction of privy vaults ; " For causing vacant lots to be properly enclosed ; " For preventing or regulating the erection or continuance of slaughter-houses, gas-works, tanneries, distilleries or other manufactories or trades which may prove to be nuisances ; " For preventiSoig the ringing of bells, blowing of horns, shouting, and other unusual noises, in streets and public places ; " For preventing or regulating the firing of guns and other fire-arms; and the firing or setting off of fire-balls, squibs, crackers or fire-works ; and for preventing chari varies and other like disturbances of the peace ; " For preventing immoderate riding or driving in highways or streets, and for preventing the leading, riding, or driving of horses or cattle upon sidewalks or other places not proper therefor ; "For preventing persons in streets or public places from opportuning others to travel in or employ any vessel or vehicle, or go to any tavern or boarding-house, or for regulating persons so employed ; " For regulating the interment of the dead, and for preventing . the same taking place within the municipality." (Con. Stat. U. C. c. 64, 8. 294.) In Police Villages. — " The trustees of every police village shall execute and enforce the regulations following : — " No person shall throw or cause to be thrown any filth or rubbish into any street, lane, or public place, under a penalty of one dollar, and a further penalty of two dollars for every THE MAOISTRATR's MANUAL. 803 wcok lie noplecti *o lomovotheBame, after being notifiod to do BO 1)V the iiijiperting trtwtee or BOino other person authorised byliim. ' {lb. i. ai2.) In CrriEs and Towns. — " The <»onncil of every city and town may respectively pass by-laws for compelling persons to remove the snow, ice and dirt from tlie roofs of the premises owned of occupied by them, and also to remove the same from the side- walks, street or alley in front of such premises, and for removing the same at the expense of the occupant in case of his default." {lb. 8. 297.) OUTLAWRY. Outlawry is a punishment inflicted on a person for contempt and contumacy, in refusing to be amenable to the justice of that court which hath lawful authority to call him before them ; and its process may issue in a prosecution for any crime what- ever. Outlawry in felony is of itself an attainder, and subjects the party to such an award thereupon, to be made by the court where he is brought, as is provided for the oflfence for whicli he is indicted and outlawed; for the law interprets the party's itbsence as a sufficient evidence of his guilt, and without requiring further proof or satisfaction, accounts him guilty of the fact, on which ensues absolute forfeiture of his whole estate real and personal ; indeed, many men who never were tried have been executed upon the outlawry. (Dickinson, Quarter Sessions^ 985.) . « Sessions have AUTHORriY m. — " The courts of General Quarter Sessions of the Peace in the several counties of Upper Canada shall be in the place and stead of the county courts of England, as far as respects any purpose of outlawry, or any proceedings therein." (Con. Stat. U.C, c. 107, s. 1.) Capias or Bench Warrant. — "The process upon every indictment to bring the person indicted into court shall be a capias in the usual form, issued from the court before whicli the indictment is found, directed to the sheriff of the county wherein the said court is sitting, commanding him to take the 894 THE magistrate's MANUAL. f'\ ¥ person indicted and to bring him before the said court ; and if the person cannot be taken during the sitting of the said court, then so soon after as he can be taken to bring or cause him to be brought before some Justice ol the Peace of the county, to be dealt with according to law." (lb. s. 2.) When eeturnable. — " The capias shall be made returnable in the court of Queen's Bench or Common Pleas, on the first day of the term next after the sitting of the court before which the indictment is found ; and if upon the return of the writ the sheriff of the said county returns that the person therein named is not to be found in his county, then an alias writ of capias shall issue from the court of Queen's Bench or Common Pleas, under the seal of the court, tested of the first day of the term, if in term time, or on the last day of the preceding term, if in vacation, returnable before such court on the first day of the next ensuing term. (Ih. s. 3.) If return non est. — If to the said writ of alias capias the sheriff returns that the person therein named is not to be found in his county, then upon motion in court, or before a Judge in vacation, a writ of exigent shall issue under the seal of the court, tested on the first day of the term, if in terin time, or on the last day of the preceding term, if in vacation, directed tb the sheriff' of the county into which the said writs of capias issued ; which writ of exigent shall be returnable on the first day of the fifth term from that in which the same is awarded, and may be in the form following, that is to say : {Ih. s. 4.) Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Sheriff of the County— Greeting : "We command you, that you cause A. B., late of to be demanded from General Quarter Sessions toX3eneral Quarter Sessions in your county until, according to the law of Upper Canada, he be outlawed if he doth not appear, and if he doth appear, then that you take him and cause him to be safely kept, so that you may ha^e his body before us, in our court of , at Toronto, on the day of term next {the return of the writ), to answer to a certain bill of indictment found against him for (whateoeur the crime may he) and have then there this writ. Witness, the Honorable Chief Justice, (or Senior Judge) at Toronto, this day of , in the year of our reign. How Sheriff to proceed. — " The sheriff to whom the said writ of exigent issues shall, at three successive courts of General THE magistrate's MANUAL. 395 Quarter Sessions of the Peace, to be holden in and for his county, before the return of the said writ, in open court, immediately after the charge to the grand jury, make or cause to be made proclamation of the person named in the said exigent, requiring him to render himself to answer to the said indictment." {Ih. s. 5.) Keitrn thereof. — If the person so demanded does not appear, the sheriff to whom the said writ of exigent is directed, shall endorse upon the said writ of exigent a return in the • following form : {II. s. 6.) By virtue of the within writ, to me directed, at the court of General Quarter Sessions of the Peace, held at , in and for the county of , on , the day of , in the year within written, the within named A. B. was a first time demanded, and did not appear ; and at the court of General Quarter Sessions of the Peace, held at aforesaid, for the county aforesaid, on , the day of ^ in the year aforesaid, (or aait may he) the said A. B. was a second time demanded, and did not appear ; and at the court of General Quarter Sessions of the Peace held at aforesaid, for the county aforesaid, on , the day of , in the year aforesaid [or as it may le) the said A. B. was a third time demanded, and did not appear : therefore the said A. B., according to the law of Upper Canada, is outlawed. The answer of C. D. Sheriff. Writ of Proclamation. — In all criminal cases wherein any writ of exigent is awarded under this act, against any person described in the indictment, as being lately conversant in any otlier county of Upper Canada than that in which the said exi- gent is so awarded, a writ of proclamation shall be awarded and made out of the same court, or by order of a Judge in vacation, having day of teste and return as the writ of exigent has, and shall be directed and delivered to the sheriff of the county in which the person indicted is in the said indictment described as having lately been conversant ; which writ of proclamation may be in the following form : {Ih. s. 7.) Victoria, &c., &c., &c. ' To the Sheriff of the county— Greeting : Whereas by a writ, we lately commanded our Sheriff ol' the county of thf.t he should cause A. B. late to be demanded from General Quarter Sessions to General Quarter Sessions, until, according to the law of Upper Canada, he should be outlawed if he did not appear, and if he did appear, then that he should take him and cause him to be safely kept, so that he might have his body before us in our court of , at Toronto, on the day of term then next, to answer to a certain bill of indictment found W,m , Ma ■ 1,1; ; . '.-,1- ■; ■:.■. PERJURY. Definition. — Perjury at common law is defined to be a wilful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. * In fact, all fines are to be paid to the treasurer of the county, unless there be special provision to the contrary. i 'm 400 THE magistrate's MANUAL. Evidence. — To support an indictment for perjury, the prose- cutor must prove : 1, the authority to administer an oath ; 2, the occasion of administering it ; 3, the taking of the oath ; 4, the substance of the oath ; 6, the materiality of the matter sworn ; 6, the introductory averments ; 7, the falsity of the matter sworn ; and, 8, the corrupt intention of the defendant. Who may administer OathS. — " In every case where an oath or affirmation is directed or authorized to be made before any court, person, or officer, such court, person, or officer shall have full power and authority to take and administer the oath or affirmation ; and the wilful and corrupt making of any false statement on any such oath or affirmation shall be wilful and corrupt perjury, and the wilful and corrupt making of any false statement in any declaration required or authorized by the Con- solidated Statute of Upper Canada shall be a misdemeanor pun- ishable as wilful and corrupt perjury." (Con. Stat.U.C. c. 2, s. 15.) Before Surrogate Courts and Commissioners. — The judges and registrars of the surrogate courts respectively shall have full power to administer oaths in matters and causes testamen- tary, and in all other matters in any of the said courts ; and commissioners for taking affidavits in either of the superior courts of common law, or in the court of Chancery in Upper Canada, shall also have full power respectively to administer oaths in all matters and causes testamentary, and in all other matters in the said courts, to parties desirous of making affidavit or deposition before them respectively : any person who wilfully gives false evidence or who wilfully swears or affirms falsely in any affidavit or deposition before any of the said surrogate courts, or before any judge or registrar thereof, or before any commissioner as aforesaid, shall be llaMe to the penalties and consequences of wilful and corrupt perjury." {Ih. c. 16, s. 15.) Before Division Courts. — " All affidavits to be used in any of the division courts, or before any of the judges thereof, may be sworn before any county judge, or before the clerk or deputy clerk of the division court, or before any judge or commissioner for taking affidavits in any of the superior courts." {II., c. 19, s. 104.) ' ~ ; ^ THE magistrate's MANUAL. 401 <* In case any person, in any examination, wilfully and cor- ruptly gives false evidence, or wilfully swears or affirms falsely in any matter where an oath, affidavit or affirmation is required or allowed in this act, he shall be liable to the penalties of wilful and corrupt perjury." {Ih, s. 105.) False Declarations under the Municipal Act. — "The wilful and corrupt making of any false statement required or authorized by this act shall be a misdemeanor, punishable as wilful and corrupt perjury." {Ih, c. 54, s. 423.) Out of Upper Canada. — "Any person who wilftilly and corruptly makes any false affidavit out of Upper Canada before any chief Justice or other officer or functionary authorized to take the same under the Common Law Procedure Act, shall be deemed guilty of perjury, in like manner as if such false affidavit had been made in Upper Canada before competent authority ; and he may be dealt with, indicted, tried, and, if convicted, be sentenced, and the offence may be laid and charged to have been committed in that county or place where he has been apprehended or is in custody." {Ih. c. 101, s. 9.) In matters concerning Revenue. — " Upon all examinations and inquiries made by order of the Governor in council, for ascertaining the truth as to any fact relative to any matter concerning the collection or management of the revenue, or the accounting for the same, or the conduct of officers or persons employed therein, and upon like examinations and inquiries made by the collector of the customs, or by the chief officer employed in the collection and management of the revenue in or at any port, district or place, or by any person or. officer authorized by the Governor in council to make such examina- tions and inquiries, any person to be examined as a witness shall deliver his testimony on oath, to be administered to him by the officer or person making such examination or inquiry, who shall administer the same , and any person wilfully making any false statement in any such examination upon oath, or upon any solemn affidavit or declaration substituted as aforesaid for an oath, whether such oath be required by this act or by any other law relating to the revenue, shall be deemed guilty 26 402 THE MAGISTRATE 8 MANUAL. of wilful and corrupt perjury, or of a misdemeanor punishable in the same manner as wilful and corrupt perjury, and shall on conviction be liable to be punished accordingly." (Con. Stat. C. c. 16, s. 42.) Form of Indictment. — " In any indictment for perjury, or for unlawfully, illegally, falsely, fraudulently, deceitfully, ma- liciously, or corruptly, taking, making, signing, or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offence charged npon the defendant, and by what court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, was taken, made, signed or subscribed, without setting forth the bill, answer, information, indictment, declaration, or any part of any proceeding either in law or equity, and without setting forth the commission or authority of the court or person before whom such offence was committed." {Ih c. 99, s. 39.) Subornation of. — " In every indictment for subornation of perjury, or for corrupt bargaining or contracting with any person to commit wilful and corrupt perjury, or for inciting, causing or procuring any person unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously or corruptly, to take, make, sign or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient, whenever such perjury or other offence aforesaid has been actually committed, to allege the •offence of the person who actually committed such perjury or K)ther offence, in the manner hereinbefore mentioned, and then i;o allege that the defendant unlawfully, wilfully and corruptly, 'did cause and procure the said person the said offence in man- ner and form aforesaid to do and commit; and whenever such perjury or other offence aforesaid has not actually been com- mitted, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth or Averring any of the matters or things hereinbefore rendered THE MAOISTBATE's MANUAL. 403 *'•' .■'i unnecessary to be set forth or averred in the case of wilful and corrupt perjury." {Ih. s. 40.) Evidence. — "A certificate containing the substance and efiect only (omitting the formal part) of the indictment and trial for any felony or misdemeanor, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court whereat the indictment was tried, or among which such indictment has been filed, or by the deputy of such clerk or other officer, shall, upon trial of an indictment for perjury or subornation of perjury, be sufficient evidence of the trial of such indictment for felony or misdemeanor, without proof of the signature or official character of the person ap- pearing to have signed the same." {Ih. s. 71.) Perjuby defined — In every case where an oath or affirma- tion is directed or authorized to be made before any court, person or officer, such court, person or officer shall have fiill power and authority to take and administer the oath or affir- mation ; and the wilful and corrupt making of any false state- ment in any oath or affirmation shall be wilful and corrupt perjury, and the declaration required or authorized by any of the Consolidated Statutes of Upper Canada, shall be a misde- meanor punishable as wilful and corrupt perjury. (Con. Stat. U. C. c. 2, s. 16.) The Oath. — The word "oath" shall be construed as mean- ing a solemn affirmation, whenever the context applies to any person and case, by whom and in which a solemn affirmation ' may be made instead of an oath ; and in every case where an oath or affirmation is directed to be made before any person or officer, such person or officer shall have full power and authority to administer the same, and to certify its having been made ; and the wilful making of any false statement in any such oath or affirmation shall be wilful and corrupt per- jury ; and the wilful making of any false statement in any declaration required or authorized by any such act as afore- said, shall be a misdemeanor punishable as wilful and corrupt perjury. (Con. Stat. C. c. 5. s. 6. sub. s. 13.) i M^ r ,,, ■•!v?!i » m t I 410 THE magistrate's MANUAL. Sale how effected, (&c., and purchase money how ajyplied. — 17. If by affidavit it be proved before one of the Justices afore- said to his satisfaction, that all the proper notices have been duly affixed and published as before prescribed, then if the owner does not replevy or redeem the animal within the time specified in the notices, or before the sale of such animal, the pound-keeper who impounded the animal, or if the person who took up the animal did not deliver such animal to the pound- keeper, but retained the same in his own possession, then any pound-keeper in the township, may publicly sell the animal to the highest bidder at the time and place mentioned in the aforesaid notice, and after deducting the penalty (if any) and all other charges, shall return any surplus to the original owner of the animal ; but if not claimed by him within three months after the sale, the surplus in such case to be paid over to the treasurer of the municipality. Disputes, how determined. — 18. If the owner within forty- eight hours after delivery of such statement disputes the amount of damages so claimed, the amount shall then be decided by the majority of three fence-viewers of the munici- pality, one to be named by the owner, another by the party distraining and claiming the damages — ^the third by the poand- keeper. Fence-viewers to view and appraise damages. — 19. Such fence viewers within twenty-four hours after notice of tlieir appointment to view the fence and the ground upon which the animal was found doing damage, and determine whether the fence was a lawful one ; if a lawful fence, then they shall appraise the damages, and within twenty-four hours deliver to the pound-keeper a written stat^jment, signed by at least two of them, of their appraisement, as well as their lawful fees and charges. Penalty for neglect hy Fence-viewers. — 20. Any fence- viewer neglecting his duty as arbitrator shall incur a penalty of two dollars, to be recovered for the use of the municipality, by summary proceeding before a Justice of the Peace, upon complaint of party aggrieved, or the treasurer of the munici- pality. THE magistrate's MANUAL. 411 lied. — I afore- e been if the le time lal, tlib 3n who pound- en any imal to in the ny) and I owner months r to the in forty- ites the then be mnnici- e party poand- 9. Such of their hich the her the ly shall eliver to east two fees and fence- penalty cipality, ce, upon munici- Proceedinga wTiere Viewers decide against the legality of a Fence. — 21. If the fence-viewers decide that the fence was not a lawful one, they shall certify the same in writing, with a statement of their fees and charges, to the pound-keeper, who, upon payment thereof, shall deliver the animal to the owner if claimed before the sale, but if not claimed, or if such fees and charges be not paid, after due notice as aforesaid, the animal shall be sold. Zidbility of Powndrke&p&r refusing to feed animal im- pounded. — 22. If Pound-keeper refuses or neglects to find, provide and supply the animal with good and sufficient food, water and shelter, as aforesaid, he shall for every day of such refusal or neglect forfeit not less than one dollar, nor more than four dollars. Recovery and Enforcement of Penalties. — 23. Every fine and penalty under this act may be enforced with costs, by summary conviction, before any Justice of the Peace having jurisdiction where the offence was committed ; or in default of payment, defender may be committed to the common gaol or lock-up house of such municipality for any time, on the dis- cretion of the committing and convicting Justice, not exceed- ing fourteen days, unless the fine and penalty and all costs of committal are sooner paid. , Who may he a Witness. — 24. Upon the hearing of any information under this act, any person, including the person giving or making tlo complaint, shall be a competent witness, notwithstanding such witness may be entitled to any part of the pecuniary penalty under such conviction. Application of Penalties. — 25. "When not otherwise pro- vided, every penalty recovered before any Justice of the Peace under this act shall be paid and distributed as follows : — one moiety to the city, town, village or township in which the oftence was committed ; the other moiety, with full costs, to the person who informed and prosecuted for the same, or to such other person as to the Justice may seem proper. (Con. Stat. U. 0. c. 54, 8. 360.) '■:iM If, 4^ 412 THE MAGISTRATE'S MANUAL. POLICE VILLAGES— OFFENCES IN. Trustees to sue for Penalties. — " The inspecting trustee or, in his absence, or when he is the party complained of, onq of the other trustees, shall sue for all penalties incurred under the regulations of police herein ec^ablished, before a Justice of the Peace having jurisdiction in the village and residing there- in, or within five miles thereof; or if there be none such, then before any Justice of the Peace having jurisdiction in the vil- lage ; and the Justice shall hear and determine such complaint in a summary manner, and may convict the offender upon the oath or affirmation of a credible witness, and shall cause the penalty to be levied by distress and sale of the goods of the offender, and to be paid over to the path-master or path-masters of the division or divisions to which the village belongs, or to such of the said path-masters as the trustees may direct ; and such path-r:aster or path-masters shall apply the penalty to the repair and improvement of the streets and lanes of the village, under the direction of the trustees." (Con. Stat. U. C. c. 54, s. 310.) POISON AND OTHER NOXIOUS THINGS. I^ESTRicnoN OP Sale. — " No apothecary, chemist, druggist, vendor of medicines or other person in this province, shall sell or deliver any arsenic, corrosive sublimate, strychnine, or other poison, mineral or vegetable, simple or composite, commonly known as deadly poison, (or which being incautiously or se- cretly administered may cause immediate death), to any person who does not then produce and deliver a certificate or note from some person duly licensed or legally authorized to practice as a physician or surgeon, or some priest or minister of religion resident in the locality, addressed to such apothecary, chemist, druggist, vendor of medicines, or other pM«on, and mentioning the name, residence, calling or profession of the person requir- ing such arsenic, corrosive sublimate, strychnine or other such poison as aforesaid, and stating the purpose for which it is required, and that it ought to be sold to the person requiring THE MAQISTKATe's MANUAL. 413 the same, and such certificate or notcHBhall be kept by the per- son selling or delivering such poison as his justification for so doing." (Con. Stat. C. c. 98, s. 1.) Penalty. — " Any apothecary, chemist, druggist, vendor of medicines, or other person who contravenes the provisions of the last section, shall for each offence incur a penalty not ex- ceeding forty dollars, and shall, if such penalty be not forthwith paid upoi. conviction, be committed to gaol for a period not exceeding three months, unless the penalty and the costs of prosecution be sooner paid." {Ih. s. 2.) "The penalties imposed by this act shall be recoverable, with costs, in a summary manner before any one Justice of the Peace, on the oath of one or more credible witnesses other than the prosecutor, and the prosecution may be commence^ at any time within six months after the offence committed, and one moiety of the penalty shall belong to the prosecutor, and the other moiety to Her Majesty, for the public use of the province." {lb. s. 3.) Feloniously Administeeing.- — " Any person who unlawfully applies or administers or attempts to apply or administer to any other person, any chloroform, laudanum, or other stupify- ing or overpowering drug, matter or thing, with intent thereby to enable or to assist such offender or any other person to com- mit any felony, shall be guilty of felony, and shall be impris- oned in the penitentiary for any term not less than two nor more than five years." (Con. Stat. C. c. 91, s. 13.) Maliciously administering Poison endangebing Life. — " Whosoever shall unlawfully and maliciously administer to, or cause to be administered to, or taken by any other person, any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby inflict upon such person any grievous or bodily harm, shall be guilty of felony, and being convicted thereof, shall be liable to be sen- tenced to imprisonment for any period not more than two ■ years." (24 Vic. c. 7, s. 1.) Maliciously administering with intent to Injure. — " Who- soever shall unlawfully and maliciously administer to, or cause ^ If' 414 THE MAOISTRATE S MANUAL. t t to be administered to, or taken by any other person, any poison or other noxious thing, with intent to injure, aggrieve or an- noy such person, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be sentenced to imprison- ment for any period not more than two years." {Ih. s. 2.) Conviction for Misdemeanor on Indictment fob Felony. — " If upon the trial of any person charged with the felony above mentioned the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of the misdemeanor above mentioned, then and in every such case the jury may acquit the accused of such felony, and find him guilty of such misdemeanor ; and thereupon the delinquent shall be liable to be punished in the same manner as if con- victed upon an indictment for the misdemeanor." {Ih. s. 3.) POST OFFICE — OFFENCES RELATING TO. Stealing Letters. — " To steal, embezzle, secrete or destroy any post-letter, shall be felony, punishable in the discretion of the court by imprisonment in the provincial penitentiary for no less than three nor more than fourteen years ; unless such post- letter contains any money, chattel or valuable security, in which case the oflfence shall be punishable by imprisonment in the said penitentiary for life." (Con. Stat. C. c. 31, s. 55, sub. sec. 1.) Stealing Money. — " To steal from or out of a post-letter any chattel, money or valuable security is felony, punishable by imprisonment in tl^e said penitentiary for life." {Ih. sub. sec. 2.) Stealing from Bags. — " To steal a post-letter bag, or a post- letter from a post-letter bag, or a post-letter from any post office, or from any office of the provincial post office, or from a mail, or to stop a mail with intent to rob or search the same, shall be felony, punishable by imprisonment in the said peni- tentiary for life." (/J. sub. sec. 3.) :• ' Opening Letter-bags. — " To open unlawfully any post-letter bags, or unlawfully to take any letter out of such bag, shall be 91^ • I'j n THE MAOIBTBATE^S MANUAL. 415 felony, punishable by imprisonment in the said penitentiary for fourteen years." {lb. sub. sec. 4.) Keceiving. — " To receive any post-letter or post-letter bag, or any chattel, money or valuable security, the stealing, taking, secreting or embezzling whereof is hereby made felony, know- ing the same to have been feloniously stolen, taken, secreted or embezzled, shall be felony, punishable by imprisonment in the said penitentiary for fourteen years ; and the offender may be indicted and convicted either as an accessory after the fact or for a substantive felony, and in the latter case whether the principal felon hath or hath not been previously convicted, or is or is not amenable to justice ; and however such rec iiver be convicted, the offence shall be punishable as aforesaid." {lb, sub. sec. 6.) ■ FoKGiNG. — "To forge, counterfeit or imitate any postage stamp issued or used under the authority of this act, or by or under the authority of the government or proper authority of the United Kingdom, or of any British Korth American pro- vince, or of any foreign country ; or knowingly to use any such forged, counterfeited or imitated stamp ; or to engrave, cut, sink or make any plate, die or other thing whereby to forge, counterfeit or imitate such stamp, or any part or portion thereof, except by the permission in writing of the postmaster general, or of some officer or person who, under the regulations to be made in that behalf, may lawfully grant such permission, or to have possession ol any such plate, die or q^her thing as aforesaid without such permission as aforesaid; or to forge, counterfeit or unlawfully imitate, use or alHx to or upon any letter or packet any stamp, signature, initials or ether mark or sign purporting that such letter ought to pass free oi -jostage, or at a lower rate of postage, or that the postage thereon or any part thereof hath been pre-paid, or ought to be paid by or charged to any person, department or party whomsoever, shall be lelony, punishable by imprisonment in the provincial peni- tentiary lor life ; and to such felony all the provisions of the Act respecting Forgery shall apply as if such offence were made felony by that act, in so far as the provisions thereof are 416 THE magistrate's MANUAL. not inconsistent with this act ; and the accessories to any such offence shall be punishable accordingly." (/&. sub. sec. 6.) Opening Letters. — "To open unlawfully, or wilfully to keep, secrete, delay or detain, or procure or suffer to be unlaw- fully opened, kept, secreted or detained, any post-letter bag, or any post-letter, whether the same came into the possession of the offender by finding or otherwise howsoever, or after pay- ment or tender of the postage thereon (if payable to the party having possession of the same), to neglect or refuse to deliver up any post-letter to the person to whom it is addressed, or who is legally entitled to receive the same, shall be a misde- meanor." {Ih. sub. sec. 7.) Stealing, &c., printed matter. — " To steal or for any pur- pose to embezzle, secrete, destroy, wilfully detain or delay any printed note or proceeding, newspaper, printed paper or book sent by post, shall be a misdemeanor." {Ih, sub. sec. 8.) "Wilfully and maliciously to destroy, damage, detain or delay any parcel sent by parcel post, shall be a misdemeanor." {Ih. sub. sec. 9.) Enclosing Letters in Newspapers. — "To enclose a letter or letters, or any writing intended to serve the purpose of a letter, in a parcel posted for the parcel post, shall be a misde- meanor ; and to enclose a letter or any writing, or to make any written marks to serve the purpose of a letter, or enclose any other thing 'm. a newspaper posted to pass as a newspaper at. the rate of postage applicable to newspapers (except in the case of the accounts and receipts of newspaper publishers, which are permitted to pass folded in the newspapers sent by them to their subscribers), shall be a misdemeanor." {Ih. sub. sec. 10.) Delaying the Mail. — " To obstruct or wilfully delay the passing or progress of any mail, or of any carriage or vessel, horse, animal or carriage employed in conveying the mail on any public highway, river, canal or water communication in this province, shall be a misdemeanor." {Ih. sub. sec. 11.) THE magistrate's MANUAL. 417 .ire or Injuring Bags. — " To cut, tear, rip or wilfully damage or destroy any post-letter bag shall be a misdemanor." {lb. sub. sec. 12.) Drunkenness, &c., op Mail Carrier. — " It shall be a mis- demeanor for any mail-carrier, or any person employed to convey any mail, post-letter bag or post-letters, to be guilty of any act of drunkenness, negligence or misconduct whereby the safety or punctual delivery of such mail, post-letter bag or post-letters might be endangered ; or, contrary to this act or any regulation made under it, to collect, receive or deliver any letter or packet, or to neglect to use due care and diligence to convey any mail, post-letter bag or post letter at the rate of speed appointed therefor by the regulations then in force on the contract under which he acts." {lb. sub. sec. 13.) Toll-gate Keeper delaying Mail. — " It shall be a misde- meanor for any toll-gate keeper to refuse or neglect forthwith upon demand to allow any mail on any carriage, hoi-se or animal conveying the same to pass through such toll-gate, whether on pretence of the non-payment of toll or any other, provided that nothing in this sub-section shall affect the right of any officer or person travelling with any mail to pass toll- free through any toll-gate ; and in any case where such officer or person would have passed toll-free before the tenth day of August, 1850, an officer or person travelling with the mail shall in like manner pass toll-free, but not otherwise or elsewhere, unless it be otherwise provided by competent authority ; and in any such case he shall not be detained on pretence of demanding such toll, but the same, if due and not paid, shall be recoverable in the usual course of law from the party liable.'* {Ih. sub. sec. 14.) Contravention op Regulations. — " Any wilful contraven- tion of any regulation lawfully made under this act shall be a misdemeanor, if declared to be so by such regulation." {lb. sub. sec. 15.) , SoLiornNG TO commii oppences against this Act. — "To solicit or endeavor to procure any person to commit any act 27 hi m 1 i \i i«.- I 418 THE magistrate's MANUAL. hereby made or declared hereby to be a felony or misdemeanor, shall be a misdemeanor." {Ih. sub. sec. 16.) Misdemeanor, how punishable. — " And every such misde- meanor as aforesaid shall be punishable by fine or imprison- ment, or both, in the discretion of the court before whom thq offender is convicted." {Ih. sub. sec. 17.) Accessories. — " Every principal in the second degree, and every accessory before or after the fact to any such felony as aforesaid, shall be guilty of felony, and punishable as the principal in the first degree ; and every person who aids, abets, counsels or procures the commission of any such misdemeanor as aforesaid shall be guilty of a misdemeanor and punishable as a principal offender." {Ih. sub. sec. 18.) Embezzlement. — " If any officer of, or connected with the provincial post office department, converts to his own use in any way whatever, or uses by way of investment in any kind of property or merchandize, or loans with or without interest, any portion of the public moneys entrusted to him for safe keeping, transfer, disbursement, or for any other purpose, — every such act shall be deemed and adjudged to be an em- bezzlement of so much of the said moneys as are thus taken, converted, invested, used or loaned, which is hereby declared to be a felony ; and the neglect or refusal to pay over any pub- lic moneys in his hands, or transfer or disburse any such public moneys promptly, on the requirement of the postmaster gene- ral, shall be jm^ma fade evidence of such conversion to his own use of so much of the public moneys as are in the hands of such officer. And all persons advising or knowingly and willingly participating in such embezzlement, upon being con- victed thereof before any court of competent jurisdiction, shall for every such offence forfeit and pay to her Majesty, her heirs or successors, a fine equal to the amount of the money embezzled, and shall suffer imprisonment for a term not less than three months and not more than seven years." {Ih. s. 56.) Stealing, &o., Keys or Locks used fob Mails. — If any person steals, purloins, Ac, or unlawfully makes, forges, &c., or knowingly aids, &c., in counterfeiting any key suited to any THE MAOISTBATE S MANUAL. 419 lock adapted to the use of the post office department, and in use in any of the mail bags, such person, on conviction, shall be deemed guilty of felony, and shall be punished by imprison- ment for any term not exceeding seven years. (Sec ih. s. 67.) Criminal Procedure. — " And any indictable offence against this act may be dealt with, indicted and tried and punished, and laid and charged to have been committed either in the district, county or place where the offence is committed, or in that in which the offender is apprehended or is in custody, as if actually committed therein." {Ih. s. 58, sub. sec. 1.) Offences committed during transff op Mail. — " And where the offence is committed in or upon, or in respect of a mail, or upon a person engaged in the conveyance or delivery of a post letter bag, or post letter, or chattel or money or valu- able security sent by post, such offence may be dealt with and enquired of, tried and punished, and charged to have been committed as well within the district, county or place in which the offender is apprehended or is in custody, as in any district, county or place through any part whereof such mail, person, post letter bag, post letter, chattel, money, or valuable security, passed in the course of conveyance and delivery by the post, in the same manner as if it had been actually committed in such district, county or plade." {Ih. sub. sec. 2.) On Roads, Ac, forming Boundaries. — "And in all cases where the side or centre or other part of a river or canal, or navigable water, constitutes the boundary between two districts, counties or places, then to pass along the same shall be held to be passing through both." {Ih. sub. sec. 3.) AmERS AND Abettors. — "And every accessory before or after the fact, if the offence be felony, and every person aiding or abetting or counselling or procuring the commission of any offence, if the same be a misdemeanor, may be dealt with, in- dieted, tried, and punished, as if he Were a principal, and his offence may be laid and charged to have been committed in any district, county or place, where the principal offence might be tried." {Ih. sub. see. 4.) 420 TH£ MAOISTBATS^S MANUAL. Pkopertt, how laid in Indictment. — In all indictments preferred against persons for offences under this act, the pro- perty may be laid in the postmaster general ; not necessary to allege in the indictment or at the trial that the letter, packet, chattel, &c., was of any value. By sub-section 2 anything used in the service of the post office, or moneys arising from postage, shall be laid in her Majesty. (See ih. s. 69.) Penalties, how recoverable. — " In all mere i)ecuniary penalties imposed by this act, or by any regulation of the gov- ernor in council to be made under it, shall be recoverable witli costs by the postmaster general, by civil action in any court having jurisdiction to the amount, and shall belong to the Crown, saving always the power of the Governor in Council to allow any part or the whole of such penalty to the officer or party by whose information or intervention the same has been recovered, as in the case of penalties recovered under other laws relating to the collection of the revenue ; but all such penalties shall be sued for within one year after they are in- curred, and not afterwards ; Proviso. — "Provided that if the penalty do not exceed forty dollars, it may be recovered before any one Justice of the Peace in a summary manner, and if not paid, may be levied by distress under warrant of such Justice ; and if the penalty exceeds forty dollars, the offender may be indicted for a misde- meanor, in contravening the provisions of this act, or of the regulations made under it, (instead of being sued for such pen- alty), and if convicted, shall be punishable by fine or imprison- ment, or both, in the discretion of the court" {Ih. s. 61.) Who may be a WrrNESS. — " In any action or proceeding for the recovery of postage, or of any penalty under this act, the same may be recovered on the evidence of any one credible witness, and any postmaster or other officer or servant of the provincial post office shall be a competent witness, although he is entitled to, or entertains reasonable expectation of, receiving some portion or the whole of the sum to be recovered ; and the onus of shewing that anything proved to have been done by the defendant was done in conformity to, or without contra- vention of this act, shall lie upon the defendant." {Ih. s. 62.) THE magistrate's MANUAL. f !■ 3 4-1 PRISONER. Rkscce of a Prisoner is the forcibly and knowingly freeing another from an arrest or imprisonment, and generally renders the rescuer an accomplice of the crime. Thus a rescue in trea- son is treason, in felony is felony, and in misdemeanor a mis- demeanor. Escape of a Prisoner is, where a person arrested upon crim- inal process eludes the vigilance of his keeper before actual im- prisonment, and is punishable by fine or imprisonment. Officers also, who after an arrest negligently permit a felon to escape, are punishable by fine; but vohmtarily suffering an escape renders them participators in the crime for which tlie felon was in custody — whether treason, felony or trespass. Private individuals who have persons lawfully in their custody are guilty of an escape, if they suffer them illegally to depart ; but they may protect themselves from liability by delivering over their prisoner^ to some legal and proper officer. A private person thus guilty of an escape incurs the punish- ment of fine or imprisonment, or both. Prisoner entitled to Copy of Indictment. — " Any person indicted in any of Her Majesty's courts in Upper Canada for any felony or misdemeanor, may apply to such court for a copy of the indictment, and the same shall with all convenient expedition be made out and delivered to such person, upon payment to the clerk or officer at the rate of fifteen cents for every one hundred words contained in such indictment ; but such copy shall not be received in evidence upon any trial for a malicious prosecution." (Con. Stat. IT. C. c. 110, s. 1.) Prisoners entttled to Copies of Depositions. — " The per- son who lias the lawful custody of the examinations of the witnesses upon whose depositions any person has been held to bail or committed to prison for any offence, shall, on demand, and on payment of a reasonable sum for the same, not exceed- ing five «ents tor each folio of one hundred words, deliver to such pei-son copies of such examinations and depositions." (Con. Stat. C. c. 99, &. 7.) I i % ■ m 422 THE magistrate's MANUAL. When a demand or special Order for such is necessary. — " If no such demand be made before the day appointed for the commencement of the assizes or sessions at which the trial of such person is to take place, he shall not be entitled to have copies of such examinations or depositions unless the judge or other person to preside at such trial is of opinion that such copy may be made and delivered without delay or inconveni- ence to such trial ; but such judge or other person so to preside may, if he thinks fit, postpone the trial on account of such copies not having been previously received by the party charged." {Ih. s. 8.) Escape by Party himself. — As all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, whoever in any case refuses to undergo that imprisonment which the law thinks fit to put upon him, and frees himself from it by any artifice before such time as he is to be delivered by due course of law, is guilty of a high contempt, punishable with fine and imprisonment.' Escape suffered by an Officer. — Whenever an officer having a party lawfully in his custody, on a charge of felony, "ooluntarily pennits him to escape, the officer is involved in the legal guilt of the crime charged on his prisoner. Where he negligently permits a prisoner to escape, he is guilty of a misdemeanor ; and he is guilty in this degree if a prisoner in his charge commits suicide. Let go voluntarily, cannot be Re-taken. — If an officer hath arrested a man by virtue of a warrant, and then taketh his promise that he will come again, and so letteth him go, the officer cannot, after arrest, take him again by force of his for- mer warrant, for that this was by the consent of the officer. But if he return and put himself again under the custody of the officer, it seems that it may be properly argued that the officer may lawfully detain him, and bring him before the Justice, in pursuance of the warrant. And it is said generally in some books that an officer who hath negligently suffered a prisoner to escape may re-take him wherever he finds him, without mentioning any fresh pursuit ; THE magistrate's MANUAL. 423 and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason he should take any manner of advantage from it. Breaking open doors to Re-take. — And wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in a house, the doors may be broken open to take him, on a refusal of admittance. Rescuing Persons convicted of Murder, or committed for Murder. — " If any person by force sets at liberty, or rescues, or attempts to rescue or set at liberty, any person out of prison who has been committed for or found guilty of murder, or rescues, or attempts to rescue, any person convicted of murder going to execution, or during execution, such offender is guilty of felony, and shall snffer death, and any accessory before the fact to any such offence is guilty of felony, and shall suffer death." (Con. Stat. U. C. c. 97, s. 4.) PRIZE FIGHT. Offence. — All persons present at a prize fight, and who have gone there for the purpose of seeing it, are principals in tlie breach of the peace, and indictable for a misdemeanor. If death ensue, not only the seconds but all who are present look- ing on, are guilty of manslaughter. It is the duty of Justices to cause the intended combatants to be brought before them, and to bind them over to keep the peace tiil the next assizes or sessions. PROFANATION OF THE LORD'S DAY. Trade. — " It is not lawful for any merchant, tradesman, artificer, mechanic, workman, labourer, or other person what- ever, on the Lord's day to sell or publicly shew forth, or expose or offer for sale, or to purchase any goods, chattels, or other personal property, or any real estate whatever, or to do or exercise any worldly labour, business, or work of his ordinary calling ; conveying travellers or Her Majesty's mail 424 THE MAGISTRATE S MANUAL. by land or by water, selling drugs and medicines, and other worlcs of necePL-ity, and works of charity, only excepted." (Con. Stat. U. C. c. 104, s. 1.) PoLiTioAL Meetings, Tippling, &o. — " It is not lawful for any person on that day to hold, convene, or to attend any public political meeting, or to tipple, or allow or permit tippling in any inn, tavern, grocery, or house of public entertainment, or to revel, or publicly exhibit himself in a state of intoxica- tion, or to brawl or use profane language in the public streets or open air, so as to create any riot or disturbance, or annoyance to her Majesty's peaceable subjects." {lb. s. 2.) Games and Amusemeni'S. — " It is not lawful for any person on that day to play at skittles, ball, foot ball, racket, or any other noisy game, or to gamble with dice or otherwise, or to run races on foot, or on horseback, or in carriages, or in vehicles of any sort." {Ih. s. 3.) Hunting, &c. — " Except in defence of his property, from any wolf or other ravenous beast or bird of prey, it is not lawful for any person on that day to go out hunting or shooting, or in quest of, or to take, kill or destroy, any deer or other game, or any wild animal, or any wild fowl or bird, or to use any dog, gun, rifle or other engine, net or trap, for the above mentioned purpose." {Ih. s. 4.) Fishing. — " It is not lawful for any person on that day to go out fishing, or to take, kill or destroy any fish, or to use any gun, fishing rod, nv^t or other engine for that purpose." {Ih. s. 6.) Bathing. — " It is not lawful for any person on that day to bathe in any exposed situation in any water within the limits of any incorporated city or town, or within view of any place of public worship, or private residence." {Ih. s. 6.) Penalties. — "Any person convicted before a Justice of the Peace of any act hereinbefora declared not to be lawful, upon the oath or affirmation of one or more than one credible witness, or upon view had of the offence by the Justice himself, shall for every such ofience be fined in a sum not exceeding forty dollars, nor less than one dollar, together with the costs and charges attending the proceedings and conviction." {Ih. s. 7.) WJ S-J THE MAGISTRATE 8 MANUAL. 425 Sales and Aqeeements. — " All sales and purchases, and all contracts and agreements for sale or purchase, of any real or personal property whatsoever, *made by any person or persons on the Lord'ti day, shall be utterly null and void." {Ih. s. 8.) Procedure. — "When any person has been charged upon oath or otherwise, in writing, before any Justice of the Peace, with any offence against this act, the said Justice shall summon the person so charged to appear before him, at a time and place to be named in such summons; and if such person fails or neglects to appear accordingly, then (upon proof of due service of the summons upon such person, by delivering or leaving a copy thereof at his house, or usual or last place of abode, or by reading the same over to him personally), the said Justice may either proceed to hear and determine the case ex parte, or issue his warrant for apprehending such person and bringing him before himself, or some other Justice of the Peace having jurisdiction within the same county or municipality ; and the Justice before whom the person charged appears or is brought shall proceed to hear and determine the case, or the said Justice, on view of the offence, may verbally order, or if on the complaint of a third party, then may, in writing, order the offender to be at once committed (although it be on the Lord's day) to the common gaol of the place, or in other safe custody, there to remain until the morrow, or some other day, accord- ing to civcumstaaces, until the case be heard and disposed of." (/J. 8. 9.) FORM OF CONVICTION. Be it remembered, that on the day of in the year of our Lord eighteen in the county of (or at the city of — — c» tht ease may h^ A. B. of is convicted before me C. D., one of Her Majesty's Justices of the Peace for the said county, [or city, oi the case may be,) for that he the said A. B. did (Jiei^e specify the offence, and the time and place when and where the same was committed, as the ease may he) and I, the said 0. D., adjudge the said A. B., for his offence to pay immediately, (or on or before the day of - — ) tiie simi of and also the sum of for costs ; and in de&ult of payment of the said sums respectively, to be imprisoned in the common gaol of the said county {or city, as the case may he) for the sps^CQ of months, unless the said sums be sooner paid ; and I direct that the said sum of (the penalty) shall be paid as follows, that is to say, one moiety thereof to the party charging the offence, and the other moiety to the treasurer of the county (naming the one in which the 11 mil V. fi ill J I i-'i s'*ii 4i| Mi puu J« HI ij .Bpp^i^yippev ■ 5 i"y|L|_iJ=ji^,^ 1-v ii"('«w>."i|Pijf 95f THE magistrate's MANUAL. offence was committed, or chamberlain of the said city, * exceeding two hundred dollars, and imprison- ment not ex( ig six months, or both, at the discretion of the court, {x. . 20.) 'Neri >) u !l»l £i If ■•■tl n ■"T3»ii» 444 THB MAGISTBATB 8 MANUAL. Limitation of Actions. — " Every action to be brought against any person for anything by him done under authority of this act must be brought within twelve months next after the cause of such action occurred." {Ih. s. 21.) PUBLIC OFFICERS — OFFENCES BY. These may be classed under one of four heads, viz. : mal- feasance^ Twnfeaacmce^ extortion or refusal to execute an office. Malfeasance. — It is a general rule that an officer is indict- able for misbehaviour in his office, and where the act done is clearly illegal, it is not necessary to show that it was done with corrupt motives. A gaoler is punishable for barbarously ill- using his prisoner. Every malfeasance or culpable nonfeasance of an officer of justice is an indictable misdemeanor, punishable with fine or imprisonment, or both.* Nonfeasance. — ^Where an officer is bound by virtue of his office to perform an act, the neglect to perform that act is an indictable offence. Thus coroners, constables, sheriffs, &c., are indictable for not performing their several duties.t Extortion. — Extortion is the taking of money by a public officer under colour of his office, either where none at all is due, or not so much is due, or where it is not yet due. It is a misdemeanor punishable by fine or imprisonment, or both. And, generally, no public officer shall take any other fees or rewards for doing anything relating to his office than some statute in force gives him, or else as hath been anciently and accustomably taken ; and if he do otherwise he is guilty of extortion. 3 « > "^ , \- * On an information for malfeasance it is not necessary to prove that he was snch officer, nor is it necessary to prove that he had notice of all the facts alleged, if it was his official duty to know them. f On an information for nonfeasance it must be proved, 1. That the defendant holds the office ; 2. That it was his duty, and within his power, to perform the particular act ; and 8. That he neglected to do so. THE magistrate's MANUAL. 445 Assessors. — If any assessor or clerk refuses or neglects to perform any duty required c ^ him by this act, he shall for every such offence, upon conviction thereof before the recorder's court of the city, or before the court of General Quarter Sessions of the county in which he is assessor or clerk, forfeit the sum of one hundred dollars to her Majesty." (Con. Stat. U. C. c. 65, 8.171.) " If any clerk, assessor or collector, acting under this act, makes any unjust or fraudulent assessment or collection, or copy of any assessor's or collector's roll, or wilfully and fraudu- lently inserts therein the name of any person who should not be entered, or omits the name of any person who should be entered, or wilfully omits any duty required of him by this act, he shall be guilty of a misdemeanor, and upon conviction thereof before a court of competent jurisdiction shall be liable to a fine not exceeding two hundred dollars, and to imprison- ment until the fine be paid, or to imprisonment in the common gaol of the county or city for a period not exceeding six months, or to both such fine and imprisonment, in the discretion of the court. {Ih. s. 173.) " Proof to the satisfaction of the jury, that any real property was assessed by the assessor at an actual yearly value greater or less than its true actual or yearly value by thirty per centum thereof, shall he prima facie evidence that the assessment was fi-audulent and unjust." (lb. s. 174.) " An assessor convicted of having made any fraudulent and unjust assessment, shall be sentenced to the greatest punish- ment both of fine and imprisonment allowed by this act." {Ih. B. 175.) "With reference to Upper Canada Jurors' Act, if an assessor of any township, village or ward, neglects or omits to make out and complete his assessment roll for the township, village or ward, and to return the same to the oflice of the clerk of such township or village, or of the city or town in which any such ward is situated, or to the other office or place of deposit for such roll, on or before tbe first day of September of the year for which he is assessor, every such assessor so offending 'i . I if ij Nv i !ifi! 1-: 446 TBE MAGISTRATE £ MANUAL. I s! I shall forfeit for every such oflfence the snm of two hundred dollars, one moiety thereof to the use of her Majesty, and the other moiety with full costs to such person as may sue for the same in any court of competent jurisdiction, by action of debt or information ; but nothing herein co-itained shall be construed to relieve any assessor from the obLjiation of returning his assessment roll at an earlier period oi the year, or from the penalty he may incur by not returning the same accordingly." (Ih. 8. 176.) Trustees of Police Tillages. — *' Any police trustee who wilfully neglects or omits to prosecute an offender at the request of any resident householder of the village offering to adduce proof of an offence against the ^regulations of police herein established, or who wilfully neglects or omits to fulfil any other duty imposed on him by this act^ shall incur a penalty of five dollars." (Con. Stat. TJ. C* c 54, s, 308.) " The penalties prescribed by the preceding section, or by that for the establishment of relations of police, shall be sued for within ten days after the offence has been committed or has ceased, and not subsequently," {lo. s. 309.) Revenue Officers.—'" If any officer, or any person acting in any office or employment connected with the collection and management of the revenue or the accounting for the same, takes or receives, directly or indirectly, any fee, perquisite, gratuity, or reward, whetiier pecuniary or of any other sort or description, whatsoever, from any person, not being an officer or person legally authorized to pay or allow the same, on ac- count of anything done by him in any way relating to his office or employment, except such as he receives by order or with the permission of the Governor in council, every such officer or person so offending shall, on proof to the satisfaction of the Governor, be dismissed from has office or employment." (Con. Stat. C, g. 16, s, 30.) • - ,'f . .' I)ivisio]?r CotiRT Officers, Misconduct OF.-^lf any division court officer, acting under colour or pretence of process of the coutrt, be guilty of extortion or misconduct, or does not duly THE MiLOiaTRATS's ICANTTAt. 447 lundred and the for the of debt )n8trued ling his com the dingly." itee who ir at the Fering to of police i to fulfil I incur a m.) on, or by , shall be ommitted on acting jction and the same, lerquisite, ter sort or an officer Cj on afr- ing to his order or fvery such latisfaction ^loyment." ly division jess of the not duly pay or account for all money levied or received by him by virtue of his office, the Judge, at any sitting of the court, if complaint be made to him in writing, may inquire ihto the matter in a summary way, and may make such order thereupon for the repayment of any money extorted, or for the payment of any money received, and for the payment of damages and costs, and in default of payment after warrant may commit the party to prison. (See Con. Stat. U. C. c. 19, s. 185.) Extortion. — " If any clerk, bailiff, or other officer exacts or takes any fee or reward other than the fees appointed and allowed by law for or on account of anything done by virtue of his office, or on any account relative to the execution of this act, he shall, upon proof thereof before the court, be for ever incapable of being employed in a division court in any office of profit or emolument, and shall also be liable in damages to the party aggrieved."* (Ih. s. 186.) RAPE. " Every person guilty of the crime of rape shall suffer death as a felon." (Con. Stat. C. c. 91, s. 19.) Offence defined. — Bape is the offence of having carnal knowledge of a woman by force, against her will, and is a capital offence. A boy under fourteen years of age is, in law, incapable of committing a rape ; and if he be under that age, no evidence will be admitted to shew that in point of fact he could commit the offence. In an indictment for rape, the party ravished is an admis- sible witness ; but the value of her testimony must be left to * This and the former clause do not in any way deprive the Justice of his power to investigate complaints against any division court oflScer for extortion or mis- conduct. In those two or three counties where the*division conrt Judge is dissipated or otherwise unfit for his office, some few of the clerks and baiUfifs misconduct themselves. In the counties referred to, the Justices should instruct the comty detective to pay particular attention to the misconduct of those officers ; and when a case of extortion is discovered, the crown attorney should be requested to have it tried at the supreme court, and not before the Judge of whose ability or honesty there is a douot. i ''•'I I ■1 S 448 THE HAOIBTBATB^S MANUAL. the jury. For instance, if the witness be of good fame, if she pre- sently discovered the offence, and made search for the offender ; if the party accused fled for it ; these are corroborative circum- stances, wliich give greater probability to her testimony. But, on the other hand, if she concealed the injury after ahe had an opportunity to complain of its perpetration ; if the place where the fact is alleged to have been committed is where it was possible she might have been heard, and made no outcry, these carry a strong, but not conclusive, presumption that her testi- mony is false and feigned. Moreover, an assault to ravish, however shameless and out- rageous it may be, unless it amount to some degree of consum- mation of the deed, is not a rape. It is the essential character of this crime, that it must be against the will of the female on whom it is committed. And if a woman be beguiled into her consent by any artful means, it will not be a rape ; and, therefore, having carnal knowledge of a married woman under circumstances which induced her to suppose it was her husband, was held by a majority of the judges not to be a rape. However, the crime is not mitigated by shewing that the woman yielded at length to violence, if her consent were obtained by duress, or threats of murder ; nor will any subsequent acquiescence on her part do away with the guilt of the ravisher. It is a rape to force a prostitute against her will : so it is for a man to have forcible copulation with his own concubine, because the law presumes the possibility of a return to virtue. A man, however, cannot be guilty of a rape upon his own wife, for the marital consent cannot be retracted ; but he may be a criminal in aiding and abetting another in such a design. All who are present, of both sexes, aiding in the perpetra- tion of rape, are punishable. - K -^v Evidence. — " It shall not be necessary upon the trial of any person for the crime of bu'ggery or of rape, mentioned in the eighteenth and fifteenth sections, or of carnally abusing girls under the respective ages of ten and twelve years, mentioned in the sixteenth and seventeenth sections of the act respecting H THE MA0ISTRAT£^8 MANUAL. 440 offences against the person,, to prove, the emission of seed in order to contribute a janial knowledge, but the carnal know- ledge shall be deeme'd complete upon proof of ponotration only." (Con. Stat. iJ. c. 99, s. 70.) REOEIVINO STOLEN GOODS. RECEivi.,*'jt EMBEZZLED GooDS. — " If any person receives any chattel, money, or valuable security which has been so fraudu- lently disposed of as to render the party disposing thereof guilty of a misdemeanor under any of the provisions of the nine preceding sections of this act,* knowing the same to have been to fraudulently disposed of, he shall be guilty of a mis- demeanor, and may be indicted and convicted thereof, whether the party guilty of the principal misdemeanor has or has not been previously convicted or has or has not been amenable to justice." (Con. Stat. C. c. 92, s. 60.) When a Misdemeanor. — "If any person receives any chattel, money, valuable security, or other property whatso- ever, the stealing, taking, obtaining, or converting whereof is made an indictable misdemeanor by this act, excepting sections fifty-one to sixty-seven, such person knowing the same to have been unlawfully stolen, taken, obtained, or converted, such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the prin- cipal misdemeanor has or has not been previously convicted thereof, or has or has not been amenable to justice ; and every such receiver shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. s. 75.) , When Felony. — "If any person receives any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof amounts to a felony either at com- 'A ::| h\ 29 • See article " EmbezzlemenV anie, p. 225. :i{;1 450 THE magistrate's MANUAL. mon law or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such re- ceiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a substan- tive felony ; and in the latter case, whether the principal felon has or has not been previously convicted, or be or be not amenable to justice." {Ih. s. 76.) " Every such receiver, howsoever convicted, shall be im- prisoned in the penitentiary for any term not exceeding four- teen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years; and no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time ^r the same offence." {Ih. s. 77.) Venue. — " If any person receives any chattel, money, valu- able security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, or converted, such person, whether charged as an accessory after the fact to the felony or with a substantive felony, or with a misdemeanor only, may be dealt with, tried, and pun- ished in any district, county, or place in which he has had any such property in his possession, or in any district, county, or place in which the party guilty of thb principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished in ■the district, county, or place where he actually received such property." (Con. Stat. C. c. 99, s. 15.) " Any person who in any part of this province receives or has any chattel, money, valuable security, or other property whatsoever, which has been stolen or otherwise unlawfully I taken in any other part of her Majesty's dominions, knowing the said property to have been stolen or otherwise unlawfully taken, may be dealt with^ indicted, tried, and punished for rsucli offence in that part of this province where he so received -or had the stolen property, in the same maniier as if it had 'been originally stolen or unlawfully taken in that part of Canada." (/J. 8. 16.) THE magistrate's MANUAL. 451 U1 owing tlie y sncli re- dicted and ' a substan- icipal felon or be not ball be im- eeding four- oned in any m less than receiving as time ^r the money, valu- ing the same en, obtained, an accessory ve felony, or ed, and pim- } has had any !t, county, or Dal felony or anner as such punished in •eceived such ," If upon the trial of two or more persons indicted for jointly receiving any property, it be proved than one or more of such persons separately received any part of the property, the jury may convict such of the said persons as are proved to have received any part of such property." {Ih. s. 38.) RECORDERS' COURTS AND POLTCE MAGISTRATES. JuRisDionoN OP Recorders' Courts. — " There shall be in every city a court of record, to be called the Recorder's Court of the city ; and therein the recorder alone, or assisted by one or more of the aldermen, shall preside ; or in the absence of the recorder, or when there is no recorder, the mayor (and in his absence one of the aldermen elected by themselves), assisted by one or more aldermen, shall preside ; and the court shall, as to crimes and offences committed in the city, and as to matters of civil concern therein, have the same jurisdiction and powers and use the like proceedings as courts of Quarter Sessions of the Peace in counties." (Con. Stat. U. C. c 64, s. 370.) Recorders and Police Magistrates to be Justices of the Peace. — " Every recorder and police magistrate shall be ap- po'ited by the crown, and shall hold office during the pleasure of the crown ; and shall ex officio be a Justice of the Peace for the city or town for which he holds office, as well as for the county in which the city or town is situate." {Ih. s. 375.) The Clerf.. — " The clerk of the council of every city or town, or such other person as the council of the city or town may appoint for that purpose, shall be the clerk of the police office thereof, and perform the same duties and receive the same emoluments as clerks of Justices of the Peace ; and the city clerk, or such other person as the council of the city may appoint for that purpose, shall also be clerk of tho re- corder's court, and sha?l perform the same duties and receive the same emoluments as clerks of the Peace ; and in case the said clerk or other person is paid by a fixed salary, the said emoluments shall be paid by him to the municipality, and form part of its fimds." {Ih. s. 376.) ■\ii ^' ill iiM f .11 452 THE magistrate's MANUAL. i mi all Time for holding op Recorders' Courts. — " The recorder's court shall hold foui* sessions every year; and such sessions shall commence on the first Monday in the months of March, June, and September, and on the third Monday in December." (25 Vic. c. 19, 8. 3.) Costs. — " On the acquittal of any person tried for misde- meanor in a recorder's court, the presiding officer shall, if the court is satisfied that there was reasonable and probable cause for the prosecution, order the costs thereof to be taxed by the clerk, and to be paid out of the city funds." (Con. Stat. U. C. c. 54, s. 380.) Expenses of Recorder's Court. — " The expenses of the administration of justice in criminal cases in the recorder's court shall be defrayed out of the consolidated revenue fund, in like manner and to the like extent as the expenses attending the administration of justice in criminal cases in the several courts of Quarter Sessions in Upper Canada." {Ih. s. 381.) Power op Recorder and Police Magistrate. — " Where any person is charged before the recorder of any city with having committed — 1. "Simple larceny, and the value of the whole of the property alleged to have been stolen does not in the judgment of puch recorder exceed one dollar ; or 2. "With having attempted to commit larceny from the person ; or 3. " With simple larceny ; or 4. " With having committed an aggravated assault, by iirilawfully and maliciously inflicting upon any other person, either with or without a weapon or instrument, any grievous bodily harm, or by unlawfully and maliciously cutting, stab- bing or wounding any other person ; or 5. "With having committed an assault upon any female whatever, or upon any male child whose age does not in the opinion of such recorder exceed fourteen years, such assault being of a nature which cannot in the opinion of the recorder be sufficiently punished by a summary conviction before him THE magistrate's MANTAL. 453 :' il under any other act, and such assault, if upon a female, not amounting in his opinion to an assault with intent to commit a rape ; or 6. " "With having assaulted any magistrate, bailiff, or con- stable or other oflficer in the lawful performance of his duty, or with intent to prevent the performance thereof ; or 7. " With keeping or being an inmate, or habitual frequenter of any disorderly house, house of ill-fame or bawdy house ; " Such recorder may hear and determine the charge in a summary way." (Con. Stat. C. c. 105, s. 1.) Consent of Accused. — "Whenever the recorder before whom any person is charged as aforesaid proposes to dispose of the case summarily under the provisions of this act, such recorder, after ascertaining the nature and extent of the charge, but before the formal examination of the witnesses for the prose- cution, and before calling on the party charged for any statement he may wish to make, shah state to such person the substance of the charge against him, and if it is in the election of the person charged, shall then say to him these words, or words to the like effect : " Do you consent that the charge against you shall be tried by me, or do you desire that it shall bo sent for trial by a jury at the {naming the court at which it could soonest he tried) /" and if the person charged consents to the charge being sumjnarily tried and determined as aforesaid, or if it is a case not within the election of the person charged, the recorder shall reduce the charge into writing, and read the same to such person, and shall then ask him whether he is guilty or not of such charge." {Ih. s. 2.) Pleading. — " If the person charged confesses the charge, the recorder shall then proceed ^o pass such sentence upon him as may by law be passed, subject to the provisions of this act, in respect to such offence ; but if the person charged says that he is not guilty, the recorder shall then examine the witnesses for the prosecution ; and when the examination has been com- pleted, the recorder shall enquire of the person charged whether he lias any defence to make to such charge, and if he states that he has a defence, the recorder shall hear such defence, and shall then proceed to dispose of the case summarily." {Ih. s. 3.) -U-. II Kml iflp ' '^'*f i '' ■* '':ll ,;i.. W^ h m 45 THE magistrate's MANUAL. if.:..l Punishment. — " In case of larceny charged under the first, second or third suh-sections of the first section of this act, if the recorder, after hearing the whole case for the prosecution and for the defence, finds the charge proved, then such recorder shall convict the person charged and commit him to the common gaol or house of correction, there to be imprisoned, with or without hard labor, for any period not exceeding three months." {lb. s. 4.) Forms. — " Every such conviction and certificate respectively may be in the forms A and B, in this act, or to the like effect." {Ih. s. 5.) Dismissal. — " If in any case the recorder finds the offence not proved, he shall dismiss the charge, and make out and deliver to the person charged a certificate under his hand stating the fact of such dismissal." {Ih. s. 6.) When no Summary Trial granted. — ^" "When being in the election of the person charged he does not consent to have the case heard and determined by the recorder, or in any case if it appears to the recorder that the offence is one which, owing to a previous conviction of the person charged, is by law a felony, or if such recorder be of opinion that the charge is from any other circumstances fit to be made the subject of prosecution by indictment rather than to be disposed of summarily, such recorder shall deal with the case in all respects as if this act had not been passed." {lb. s. T.) Dismissal. — " If upon the hearing of the charge such recorder is of opinion that th^re are circumstances in the case which render it inexpedient to inflict any punishment, he may dismiss the person charged without proceeding to a conviction." {Ih. 8. 8.) Larcenies over One Dollar. — "Where any person is charged before any such recor-C0NVI0TI0N. Be it remembered, that on the day of —— , in the year of our Lord , at , A. B. being charged before me the undersigned ^ of the said city, and consenting to my deciding upon the charge summarily, is convicted before me, for that he the said A. B., &c. {stating the offence, and the time and place when and where committed) ; and I adjudgo the said A. B., for his said offence, to be imprisoned in the (and there kept to hard labour) for the space of — — . Given under my hand and seal, the day and year first above mentioned, at aforesaid. J. S. [l. s.] to wit C FORM B.—iSee a. 6.)— CERTIFICATE OF DISMISSAL. I, the undersigned, of the city of ^ certify that on the day of , in the year of our Lord , at afore- said, A. B. being charged before me, and consenting to my deciding upon the charge summarily, for that he the said A. B. {stating the offence charged, and the time and place when and where alleged to hme been committed), I did, having summarily a4judicated thereon, dismiss the said charge. Given under my ha id and seaL this — day of , at aforesaid. J. S. [L. S.] FORM C— (/&« a. 10.)— CONVICTION UPON A PLEA OF GUILTY. Be it remembered that on the day of , in the year of 7t! to wit \ our Lord , at , A. B. being charged before me the undersigned of the said city, for that he the said A. B., &c. (stating' the offence, and the time and place when and where committed), and pleading guilty to such charge, he is thereupon convicted before me of the said offence ; and I adjudge him the said A. B., for his said offence, to be imprisoned in the (and there kept to hard labour) for the space of . Given under my hand and seal, the day and year first above mentioned, at aforesaid. J. S. [l. s.] THE UAQISTRATE's MANUAL. 461 RAILWAYS— OFFENCES RELATING TO. EaILWAYS not to be CARRIED ALONG AN EXISTING HiGHWAT WITHOUT LEAVE FROM MUNICIPALITY. — " The highways and bridges shall be regulated as follows : 1. " The railway shall not be carried along an existing high- way, but merely cross the same in the line of the railway, unless leave has been obtained from the proper municipal authority therefor ; and no obstruction of such highway with the works shall be made without turning the highway so as to leave an open and good passage for carriages ; and, on comple- tion of the works, replacing the highway, under a penalty of forty dollars for any contravention ; but in either case, the rail itself, provided it does not rise above or sink below the surface more than one inch, shall not be deemed an obstruction. 2. "No part of the railway which crosses any highway without being carried over by a bridge, or under by a tunnel, shall rise above or sink below the level of the highway more than one inch, and the railway may be carried across or above any highway within the limits aforesaid. 3. " The space of the arch of any bridge erected for carrying the railway over or across any highway shall at all times be and be continued of the open and clear breadth and space, under such arch, of not less than twenty feet, and of a height from the surface of such highway to the centre of such arch of not less than twelve feet, and the descent under any such bridg6 shall not exceed one foot in twenty. 4. " The ascent of all bridges for carrying any highway over any railway shall not be more than one foot in twenty feet increase over the natural ascent of the highway, and a good and sufficient fence shall be made on each side of every bridge, which fence shall not be less than four feet above the surface of the bridge. "Signboards, stretching across the highway crossed at a level by any railway, shall be erected and kept up at each crossing, at such height as to leave sixteen feet from the high- way to the lower edge of the signboard, and having the words ' railway crossing ' painted on each side of the signboard, in * J ,1'. M| Ml it vt k\ ¥ Ni''; - ' ' \ •''Wir: 1 JiiiiK 4 I'ImI '■m pi . .' 'i'k ; yf^m m ^ i 1 ; ' m m 11 • ■'] Jl:.: ',; 1(1 H'' ' ;• m ill . IMAGE EVALUATION TEST TARGET (MT-3) /.^J^ <. V^^^ ^ ^ 1.0 1.1 ■>• lU 12.2 £ US 120 IL25 iU 1^ "^ "^ '^ %^'' Hiotographic Sciences Corporation 23 WIST MAM STRin WnSTIR,N.Y. USM (716)t72-4S03 '.^ 462 THE magistrate's MAKUAL. letters not less than six inches in length ; and for every neglect to comply with the requirements of this clause, a penalty not exceeding forty dollars shall be incurred." (Con. Stat. C. c. 66, 8. 12.) Fekoss. — ^* Fences shall be erected and maintained on each side of a railway of the height and strength of an ordinary division fence, with openings or gates or bars therein at farm- crossings of the road, for the use of the proprietors of the land adjoining ; and also cattle-guards at all road-crossings, suitable and sufficient to prevent cattle and animals from getting on the railway." {lb. s. 13.) Riding, &o., on the Track.:—" If any person rides, leads or drives any horse or other animal upon such railway and within fences and guards other than the farm-crossings, without the consent of the company, he shall for every such offence forfeit a sum not exceeding forty dollars, and shall also pay to the party aggrieved all damages sustained thereby." (Ih. s. 17.) " No person other than those connected with or employed by the railway shall walk along the track thereof, except where the same is laid across or along a highway." {lb. s. 18.) Obstructino Railways. — "Every person who, by any means or in any manner or way whatsoever, obstructs or in- terrupts the free use of the railway, or the cturiages, vessels, engines, or other works incidental or relative thereto or con- nected therewith, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment in the common gaol of the district or county where the conviction takes place, or in the provincial penitentiary, for a term not to exceed five years." (/J. s. 84.) DAMAoma Railways. — "All persons wilfully and ma- liciously, and to the prejudice of the railway, breaking, throw, ing down, damaging, or destroying the same, or any part thereof, or of any of the buildings, stations, d^ots, wharves, vessels, fixtures, machinery, or other works or devices inci- dental and relative thereto, or connected therewith, or doing any other wilful hurt or mischief, or wilfully or maliciously THE ItAOIErrBATE'S MANUAL. 463 neglect ilty not ;tat. C. on each )rdinary Eit farm- the land suitable bting on es, leads way and ^ without 1 offence BO pay to Ih. 8. 17.) pmployed f, except h. 8. 18.) by any ;t8 or in- ;, vessels, or con- r, and on at in the onviction nn not to and ma- ig, throw, any part wharves, ices inci- or doing aliciously obstructing or interrupting the free use of the railway, vessels, or works, or obstructing, hindering, or preventing the carrying on, completing, supporting, and maintaining the railway, vessels, or works, shall be guilty of a misdemeanor, unless the offence committed amounts, under some other act or law, to a felony, in which case such person shall be guilty of a felony, and the court by and before whom the person is tried and con- victed may cause such person to be punished in like manner as persons guilty of misdemeanor or felony {as the case may he) are directed to be punished by the laws in .force in this pro- vince." {Tb. s. 86.) , Fines, how beoovebed. — " All fines and forfeitures imposed by this act or the special act, or by any by-law, the levying and recovering of which are not particularly herein directed, shall, upon proof of the offence before any one or more Justices of the Peace for the district, county, or place where the act occurred, either by the confession of the party or by the oath or affirmation of any one credible witness, to be administered without fee or reward, be levied by distress and sale of the offender's goods and chattels, by warrant under the hand and seal, or hands and seals, of such Justice or Justices." {Ih. s. 86.) How APPLICABLE. — " All fiucs, forfeitures, and penalties, the application of which is not herein before particularly directed, shall be paid into the hands of the treasurer of the company, to be applied to the use thereof; and the overplus of the money so raised, afler deducting the penalty and the expenses of the levying thereof^ shall be returned to the owner of the goods so distrained and sold." {Ih. s. 87.) CoMMTTMENT. — " In caso sufficient goods and chattels whereof to levy the penalty and expenses are not found, the offender shall be sent to the common gaol, there to remain without bail for such term not exceeding one month as the Justice or Justices think proper, unless the penalty or forfeiture and all expenses attending the same, be sooner paid and satisfied." {Ih, s. 88.)* — . I * * Some/x«d time of imprisoiuasnt, leas than a month, shoold b« stated in the warrant. '% 464 THE MAGISTBATB'S MANUAL. Appeal. — " Every such person or persons may, within four months after the conviction, appeal against the same to the court of general Quarter Sessions to be holden in and for the county or district." (lb, s. 89.) Offence against this Act to be a Misdbmbanob. — " All contraventions of this act or of the special act,* by the com- pany or by any other party, for which no punishment or penalty is herein provided, shall be a misdemeanor, and shall be punishable accordingly ; but such punishment shall not exempt the company, if they be the offending party, from the forfeiture by this act and the special act of the privileges con- ferred on them by the said acts, if by the provisions thereof or by law the same be forfeited by such contravention." (lb. 8.90.) Checks on Parcels. — " Checks shall be affixed by an agent or servant to every parcel of baggage having a handle, loop, or fixture of any kind thereupon, and a duplicate of such check shall be delivered to every passenger delivering the same." (lb, s. 99.) ^^ If such check be refused on demand, the company shall pay to such passenger the sum of eight dollars, to be recovered in a civil action ; and farther, no fare or toll shall be collected or received from such passenger ; and if he has paid his fare, the same shall be refunded by, the conductor in charge of the train." (lb, s. 100.) , " , ^^ Any passenger producing such check may himself be a witness in any suit brought by him against the company, to prove the contents and value of such baggage not delivered to him." (lb, s. 101.) ^ Baogaob-oabs not to be in beab of Passbngeb-cars. — *^ The baggage, freight, merchandize, or lumber-cars, shall not be placed in rear of the passenger-cars ; and if any such be so placed, the officer or agent directing or knowingly suffering * That is, the act •nthoriiing the oonstraetton of the ndlway. THE MAGISTRATE 8 MANUAL. 465 such arrangement, and the conductor of the train, shall re- spectively be guilty of a misdemeanor, and be punished accord- ingly." ijh. 8. 102.) Engine to have Bell. — " Every locomotive engine shall be furnished with a bell of at least thirty poimds weight, or with a steam whistle." {Ih. s. 103.) To RING Bell, &c. — " The bell shall be rung or whistle sounded at the distance of at least eighty rods from every place where the railway crosses any highway, and be kept ringing or be soundbd at short intervals until the engine has crossed such highway, under a penalty of eight dollars for every neglect thereof, to be paid by the company, who shall also be liable for all damages sustained by any person by reason of such neglect, one-half of which penalty and damages shall be chargeable to and collected by the company from the engineer having charge of such engine, and neglecting to sound the whistle or ring the bell as aforesaid." {Ih. s. 104.) Intoxication of Engineer or Conductor. — " All persons in charge of a locomotive engine, or acting as conductor of a car or train of cars, who is intoxicated, shall be guilty of a misde- meanor."* {Ih. s. 105.) Kailway Ground to be kept in order. — "Every railway company shall cause all cleared land adjoining their railway to be sown or laid down with grass or turf, and cause all thistles and other noxious weeds growing on such land or grounds to be cut down, and to be kept constantly down, or to be rooted out of the same." {Ih. s. 134.) " If such company fails to comply with the requirements of the act, within twenty days after they have been noticed by the mayor, reeve, or chief officer of the municipality of the township or county in which the ground lies, the company will incur a penalty of two dollars for every day of such neglect ; * The constable residing in the neighbourhood of a railway should be instruc- ted to see that this section is complied with. It is far better that the question as to whether or not the bell was rone or whistle sounded, or the engineer or conductor intoxicated, should come up before a Justice before an accident, than before a coroner and jury after loss of lifej 30 406 THE MAOISTBATE'S MANUAL. and during this time said reeve, &c., may canBe the work to be done which the company neglected, and such municipality may recover all expenses and charges, as well as the penalty, with costs, in any court having jurisdiction." {Ih. s. 135.) Impeding Navigation. — "No company shall cause any obstruction in or impede the navigation of any river, stream or canal, to or across or along which their railway is carried." {Ih. 8. 136.) Trains going thbouoh CmES, &c. — " No locomotive or rail- way engine shall pass in or through any thickly-peopled portion of any city, town or village, at a speed greater than six miles per hour, unless the track is properly fenced." {Ih. s. 144.) " Whenever any train of cars is moving reversely in any city, town or village, the locomotive being in the rear, the company shall station on the last car in the train a person who shall warn parties standing on or crossing the track of such railway of the approach of such train, under a penalty of one hundred dollars for any contravention of the above provision." {Ih. s. 146.) Leaving Cattle at labge. — "No horses, sheep, swine, or other cattle, shall be permitted to be at large upon any high- way within half a mile of the intersection of such highway with any railway on grade, unless such cattle are in charge of some person or persons to prevent their loitering or stopping on such highway at such intersection." {Ih. s. 147.) Such Cattle may be Impounded. — "All cattle found at large in contravention of the last preceding section may, by any person finding the same at large, be impounded in the nearest pound to the place where the same are so found, and the pound-keeper with whom the same are so impounded shall detain the same in the like manner, and subject to the like regulations as to the care and disposal thereof, as in the case of cattle impounded for trespass on private property." {Ih. Ckossings to be Fenced. — " At any road and farm-crossing on the grade of the railways in this province, the crossing shall THE MAGISTRATE S MANUAL. 467 1^ be sufficiently fenced on both sides of such points, so as to allow the safe passing of the trains."* {Ih. s. 150.) Damaging Railway. — " If any person wilfully and mali- ciously removes or displace any railway switch or rail of any railroad, or breaks, injures, or destroys any track or bridge, with intent thereby to injure person or property, or to endanger human life, such person shall be guilty of a misdemeanor punishable by imprisonment with hard labour, for a term not exceeding twelve months. If in consequence of such act with intent as aforesaid,^ny person actually suflfers bodily harm, such injury shall be an aggravation of the oflfence, rendering it a felony, subject to imprisonment for two years." (Jh. s. 152.) If any person be killed, offence to be Manslaughter. — " If any person displaces or moves any switch, breaks down, rips up or destroys Any tract, bridge or fence, or any portion thereof, whereby any engine, machine or structure or any- thing appertaining thereto is stopped, obstructed weakened or destroyed, with intent to injure any person or property, and if in consequence thereof any person be killed, the person so oflFending shall be guilty of manslaughter, and be imprisoned in the penitentiary for not more than ten nor less than four years." (/6. s. 153.) CoMMiTTiNQ Injury, Stoppage, Ac. — If any person wilfully and maliciously does, or causes to be done, any act whatever whereby any property of any railroad, any structure, or any engine is impaired or obstructed in any way, the person so offending shall be guilty of a misdemeanor, and be punished on conviction thereof by imprisonment with hard labour in the common gaol of the territorial division where the act has been committed, for a period not exceeding one year. (See ih. 8.154.) Obstructing Inspectors. — Every person wilfully obstructing any railway inspector in the execution of his duty shall, on conviction thereof before any Justice having jurisdiction in * The penalties incnrred under these seetioBS may be recovered by the Attor- ney General in any court of competent jurisdiction, and shall be paid to the Receiver General to the credit of the ramray inspection fund. (See a. 198.) •'fl m .r 468 THE MAGISTRATE 8 MANUAL. the place where the offence was committed, forfeit and pay a sum not exceeding forty dollars, and in default of payment thereof at such time as directed, the same or any other Justice having jurisdiction where the offender resides, may commit the offender for a period not exceeding three months ; such commit- ment shall be determined on payment of the penalty, and every such penalty shall be returned to the next Quarter Sessions in the usual manner. (See ih. s. 155.) Officers, &o., contravening By-la ws.gri[f any employee of any railway company wilfully or negligently contravenes any by-law or regulation lawfully made and in force, or any order or notice of the board of railway commissioners, of which a copy has been delivered to him or posted up, or open to inspec- tion in a place where any of his duties are to be performed ; then, if such contravention causes injury or increased risk to person or property, though no actual injury occurs, such contra- vention shall be a misdemeanor, and the person convicted thereof shall, in the discretion of the court, and in proportion to the greatness of the risk of injury, be punished by fine or imprisonment, or both, the fine not to exceed four hundred dollars, and the imprisonment not more than five years ; and in case the imprisonment be two years or more, to be in the provincial penitentiary. (See ih. s. 156.) If such contravention does not .cause injury to person or property, or increase the risk of injury to person or property, then the employee guilty thereof shall incur a penalty not exceeding thirty days' pay nor less than fifteen days' pay, according to the direction of the convicting Justice ; and such jpenalty may be recovered with costs before any Justice having jurisdiction where the offence was committed, or where the offender is found, on the oath of one credible witness other than the informer. (See ih. s. 159.) Company may impose. — " Any railway company may, by a by-law, impose on any ofllcer, servant or person who before the contravention of the by-law has notice thereof and is jemployed by the company, a forfeiture to the company of not THE MAQIgTRATR^S MANUAL. 469 md pay )ayment > Justice imit the commit- nd every iBsions in ployee of enes any my order ' which a to inspec- Brformed ; ed risk to ch contra- convicted proportion by fine or hundred ears; and be in the less than thirty days* pay of such officer or servant for any contravention of such by-law, and may retain such forfeiture out of the salary or wages of the offender." {Ih. s. 162.) N'otice^ how proved.— ^'- The notice of the by-law, or of any order or notice of the board of railway commissioners, may bo proved by proving the delivery of a copy thereof to the officer, servant or person, or that he signed a copy thereof, or that a copy thereof was posted in some place where his work or his duties, or some of^j^m, were to be performed." {Ih, s. 163.) Application of^^nalties — " One moiety of such penalty shall belong to her Majesty for the public uses of this province, and the other moiety to the informer, unless he be an officer or servant of or person in the employ of the company, in which case he shall be a competent witness, and the whole penalty shall belong to her Majesty for the uses aforesaid." {Ih. s. 160.) C&inpany may deduct from Wages^ (&c. — " The company may in all cases under this act pay the amount of the penalty and costs, and recover the same from the offender, or deduct it from his salary or pay." {Ih. s. 161.) remand: See Con. Stat. C. c. 102, s. 42 {ante, p. 421). d^ * M !► M:! m may, by a Kvho before peof and is )any of not RESCUE. i - I^^ATURE OF Offence. — The offence of rescue nearly resem- bles that of prison breach, treated of ante, page 421. "When the party rescued is imprisoned on a charge of mis- demeanor, the offence is a misdemeanor; and when he is imprisoned on a charge of felony the offence is felony. Proof of Custody of the Party rescued. — To make the offence of rescuing a party felony, it must appear that he was in custody for felony or suspicion of felony, but it is imma- terial whether he was in custody of a private person or of an officer, or under a warrant of a Justice of the Peace, for when the arrest of a felon is lawful, the rescue of him is felony. But 470 THE MAOISTBATE's MANUAL. it seems necessary that the party rescuing should have know- ledge that the other is under arrest for felony if he be in cus- tody of a private person, though if he be in the custody of a constable he is bound to take notice of it. (1 Hale P. C. 606.) Rescuing Persons convicted of Mubdeb. (See ante^ p. 389.) RESPONSIBILITY FOR CRIME. Certain persons, from age, natural iJj^Oiity, or want of freedom of will, are deemed incapable oWommitting crimes, and are exempt by law from criminal responsibility. Infants. — An infant under the age of seven years cannot be guilty of felony ; above the age of seven, if it appear that he has capacity to discern between good and evil, he is capable of guilt according to his discernment. But the presumption continues in favour of his innocence till he attain the age of fourteen, at which period he is, as to the commission of crimes, supposed to have attained discretion, and his actions are sub- ject to the same responsibility as the rest of society. No infant under fourteen, however, can be guilty of rape. "Women. — If a woman ^commit theft, burglary, or robbery, by the coercion of her husband, or even in his company, which presumes coercion, she is not guilty of these crimes ; but such exceptions do not extend to treason, murder, or manslaughter. Ignorance, &c. — Persons committing crimes by casualty or misfortune, by ignorance or mistake of facts (not of law), by compulsion or necessity, ate not punishable ; but each of these circumstances, — ignorance, necessity, or infirmity, — must be strictly and satisfactorily made out by the party who relies on them for justification. Idiots and Lunatics. — Idiots and hinatics are not charge- able for their own acts, if committed when under these in- capacities, not even for treason itself. But he who is guilty of a crime through voluntary drunkenness may be punished for it as much as if he had been sober ; and he who causes a madman to commit a crime is a principal offender, and so liable as if he had committed it himself. THE MAGISTRATE B MANUAL. 4T1 RETURNS OF CONVICTIONS. • Eeturn to the Quarter Sessions. — " Every Justice of the Peace before whom any trial or hearing is had under any law * giving jurisdiction in the premises, and who convicts and imposes any fine, forfeiture, penalty or damages upon the defendant, shall make a return thereof in writing under his hand to the next ensuing Quarter Sessions of the Peace for the county in which the conviction takes place, and of the receipt and application l^him of the moneys received from the de- fendant ; and in Wm the conviction takes place before two or more Justices, such Justices being present and joining in such conviction shall make an immediate return thereof as nearly as circumstances permit, as set forth in the following I', i FORM. Retcbn of convictions made by me {or us, as the ease may be) in the month of , 18.-. . . . ^ I a I I I I I I' i? h 1 ai el I I If not paid why not, and general obeerrations if any. A. B., convicting Justice, Or, A. B. and 0. D., convicting Justices ' ' ' ! ■ (as the case may he). * And the Justices to whom any such moneys may be afterwards paid shall make a return of the receipts and application thereof to the next General Quarter Sessions, which return shall be m 472 THE .MAGISTRATE'S MANUAL. filed by tlio clork of the peace witli the records of his office."* (Con. Stat. U. C. c. 124, s. 1.) Penalty for not making Returns. — " In case the Justice or Justices before whom any such conviction takes place, or who receive any such moneys, neglect or refuse to make such return thereof, or in case any such Justices wilfully make a false, partial or incorrect return, or wilfully receive a larger amount of fees than by law authorized to be received, in every such case such Justice or Justices, and each al^^very of them so neglecting or refusing, or wilfully makingVHi false, partial or incorrect return, or wilfully receiving a larger amount of fees as aforesaid, shall forfeit and pay the sum of eighty dollars, together with full costs of suit, to be recovered by any person who sues for the same by action of debt or information in any court of record in Upper Canada, one moiety whereof shall be paid to the party suing and the other moiety into the hands of her Majesty's Receiver General to and for the public uses of the province." {Ih. s. 2.) Limftation. — " All prosecutions for penalties arising under the provisions of this act must be commenced within six months next after the cause of action accrues, and the same shall be tried in the county wherein such penalties have been incurred, and if a verdict passes for the defendant, or the plain- tiff becomes non-suit, or discontinues the action'after issue joined, or if upon demurrer or otherwise judgment is given against the plaintiff, the defendant shall recover his full costs of suit as between attorney and client, and shall have the like remedy for the same as any defendant hath by law in other cases." {Ih. s. 3.) This Act not to dispense with other necessary Returns, OR to deprive persons aggrieved op the right to prosecute a Justice op the Peace liable to be indicted for any offence. — " Nothing herein contained shall exonerate Justices * Many magistrates suppose that when this schedule is filled up and returned to the clerk of the peace, and the fine paid to the proper person, they hare ful- filled their duty, ^uch, however, is not the case, for they are required by Con. Stat. C. c. 108, s. 42 (see ante, p. 86), to make out a formal conviction, and transmit the same to the office of the Clerk of the Peace. I TUB MAOISTRATK^S MANUAL. 473 of the Peace from duly rotnrning to the General Quarter Seseions of the Peace of their respective coiintios any convictions, or records of convictions, which are hy law required to bo so returned, or to prevent any person aggrieved from prosecuting by indictment a Justice of tlie Peace for any offence, the commission of which would subject him to indictment at the time of the passing of this act." {lb. s. 6.) RIOTS, ROUtftd AND UNLAWFUL ASSEMBLIES. A Riot punishable at common law is defined by Hawkins to be a tumultuous disturbance of the peace by three persons or more assembling together of their own authority, with an intent to assist one another against any one who may oppose them in the execution of some enterprise of a private nature, and afterwards actually exciiting the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. (Hawk. P. C. b. 1, c. 65, 8. 1.) A Rout. — A rout seems to be, according to the general opinion, a disturbance of the peace, by persons assembled together with an intention to do a thing which, if executed, would make them rioters, and actually making a motion towards the execution thereof. (Hawk. P. C. 1, c. 65, s. 1.) An Unlawful Assembly. — Any meeting whatever of great numbers of people with such circumstances of terror as cannot but endanger the public peace and raise fears and jealousies among the king's subjects, seems properly to be called an unlawful assembly, as where great numbers complaining of a common grievance meet together armed in a warlike manner, in order to consult respecting the most proper means for recovery of their interests, for no one can foresee what may be the event of such an assembly. (Hawk. P. C. b. 1, c. 65, s. 9.) The statutes of Canada upon this subject are the following : " In case any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to 474 THB magistrate's MANUAL. the disturbance of the public peace, be by proclamation in the Queen's name, made in the form in this act, directed by any one or more Justice or Justices of the Peace, or by the sheriff of the county, or his deputy sheriff, or by the mayor or other head officer, or Justice of the Peace for any city or town corpo- rate, where such persons are so assembled, required or com- manded to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, and in case such persons to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotouslj^-and tumultuously remain or continue together by the space of one hour after such command or request so made by proclamation, is felony, and the offenders shall suffer death." (Con. Stat. IT. C. c. 97, s. 6.) Form of Proclamation. — " The order and form of procla- mation to be made by the authority of this act shall be as fol- lows, that is to say>: The Justice of the Peace, or other person authorized to make the said proclamation, shall, among the said rioters, or as near to them as he can safely come, with a loud voice command, or cause to be commanded, silence to be while proclamation is making ; and after that, shall openly and with a loud voice make, or cause to be made, proclamation in these words, or to the like effect: *Our sovereign lady the Queen chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to 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.' "* (/^. s. 7.) Justices op the Peace, &c., to repair to place op Riot and MAKE Proclamation. — " Every such Justice and Justices of the Peace, sheriff, deputy sheriff, mayor and other head officer. * The Justice or other officer called apon to read the riot act should be careful, and correctly and distinctly make or cause to be made proclamation in the words given in the statute. In the case of R. v. Child, 4 C. A P. 442, it was decided that when the words " God save the King" were omitted in the reading of the proclamation, the parties combining together did not incur the penalties of the statute. The officer who reads the proclamation should at once, upon concluding it, look at his watch and make a note in writing of the time. the THE magistrate's MAKUAL. 475 j.ii within the limits of their respective jurisdictions, shall, on notice or knowledge of any such unlawftil, riotous and tumultu- ous assembly of persons, to the number of twelve or more, resort to the place where such unlawful, riotous and tumultuous assembly is, and there make, or cause to be made, proclamation in manner aforesaid." {lb. s. 8.) Not dispersing on Proclamation. — " If twelve or more of the persons so unlawfully, riotously and tumultuously assem- bled continue together, after proclamation made in manner aforesaid, and do not disperse themselves within one hour, then every Justice of the Peace, sheriff and deputy sheriff of the county where such assembly may be, and also every high and petty constable and other peace officer within such county, and also every mayor. Justice of the Peace, sheriff and other head officer, high or petty constable and other peace officer of any city or town corporate where such assembly may be, and any person or persons commanded to assist such Justice of the Peace, sheriff or deputy sheriff, mayor, bailiff, or other head officer aforesaid, (who may command all her Majesty's subjects of age and ability to be assisting them therein,) shall seize and appre- hend the persons so unlawfully, riotously and tumultuously continuing together, after proclamation made as aforesaid, and shall forthwith carry the persons so apprehended before one or more of Her Majesty's Justices of the Peace of the county or place where such persons are so apprehended, in order to their being proceeded against for such their offences according to law."* {lb. 8. 9.) Ill * The Jastice or other officer acting under the authority of this section should not hesitate to call upon all the discreet and resolute persons present to be assist- ing. It is not necessary, but is advisable, that the persons so called upon should be sworn in as special constables. They should be sent among the rioters to en- deavor to persuade them to disperse. They should explain to the persons appear* ing to be the leaders of the. riot the consequences which may follow if they con- tinue together for the space of an hour after said reading. The Justice or other officer should, during tne hour to elapse after proclamation and before arrests can be made, by aU mild means within his power, endeavor to persuade the rioters to disperse. He should read sections 6 to 11 of the riot act, and let the rioters understand the consequences which may follow if they refuse to disperse. The second or subsequent reading of the act does not do away with the effect m it 476 THE MAGISTRATk's MANUAL. If there is a military or volunteer force convenient it may be called out under the following act, and the mayors, wardens or Justices should not hesitate to do so. Volunteers may be called out. — "The volunteers shall be liable to be called out in aid of the ordinary civil power in case of riot or other emergency requiring such services, and shall, when so employed, receive from the municipality in which their services are required the following rates of pay, that is to say : officers, such pay as is the daily pay in her Majesty's service of officers of corresponding rank, with an additional sum to each mounted officer of two dollars per day, and non- commissioned officers and privates the sum of one dollar each per day, with an additional sum of one dollar per day for each horse actually and necessarily used or employed on such occa- sion, and shall be also provided with proper lodging by such municipality ; and the said sums, and the value of such lodg- ing if not furnished by the municipality, may be recovered from it by the officer commanding the corps, in his own name, and when received or recovered shall be paid over to the officers and men entitled thereto." (27 Vic. c. 3, s. 18.) How Volunteers called out. — " It shall be the duty of the officer commanding any corps of volunteers to call out the same, or such portion thereof as is necessary, for the purpose of quelling any riot, when thereunto required in writing by the mayor, warden or other head of the municipality in which such riot takes place, or by any two magistrates therein, and to obey such instructions as may be lawfully given him by any magistrate in regard to the mode of quelling such riot ; and every officer, non-commissioned officer and man of such corps shall, on every such occasion, obey the orders of his command- ing officer ; and the officers and men when so called out shall. of the first reading, and the hour is to be computed from the time of the first reading. R. v. Woodcock, 6 C. d^ P. 617. The peace officers and others acting with and assisting the Justice, should ascertain as to who are, and be able to identify, the leaders, and observe their conduct during the hour. At the expiration of the hour, if the Justice haa what he deems a sufficient force, or all the force at his command, he should order the arrest of the leaders, and See that his orders are obeyed. THE magistrate's MANUAL. 477 urpose ng by whicli n, and .yany ; and corps land- shall, Ihe first should Ire their jfficient leaders, without any further or other appointment, and without taking any oath of office, be special constables, and shall act as such so long as they remain so called out." {Ih. s. 19.) SuppEEssiNG Riot— Death of Eioter. — " If in the dispers- ing, seizing or apprehending, or endeavoring to disperse, seize or apprehejid any of the persons so unlawfully, riotously and tumultuously assembled, any such person happen to be killed, maimed or hurt by reason of their resisting the persons dis- persing, seizing or apprehending, or endeavoring to disperse, seize or apprehend them, then every such Justice of the Peace, sheriff, deputy sheriff, mayor, head officer, high or petty con- stable or other peace officer, and all persons who were aiding and assisting them, or any of them, shall be free, discharged and indemnified, as well against the Queen's Majesty as against all and every other person and persons of or concerning the killing, maiming or hurting of any such person or persons so unlawfully, riotously and tumultuously assembled as aforesaid." (Con. Stat. U. C. c. 97, s. 10.) Opposing Peace Officer and others suppressing Riots. — " If any person or persons with force and arms wilfully and knowingly oppose, obstruct, or in any manner let, hinder or hurt any person or persons who begin to proclaim, or go to proclaim, according to the proclamation hereby directed to be made, whereby such proclamation cannot be made, then every such opposing, obstructing, letting, hindering or hurting such person or persons so beginning or going to make such procla- mation as aforesaid, is felony, and the offenders shall suffer death ; and every such person or persons so unlawfully, riot- ously and tumultuously assembled, to the number of twelve or more, as aforesaid, to whom proclamation should or ought to have been made, if the same had not been hindered as aforesaid, who, to the number of twelve or more, continue togetlier and do not disperse themselves within one hour after such let or hindrance so made, having knowledge thereef, are guilty of felony, and shall suffer death." (/&. s. 11.) - Limitation. — "No person or persons shall be prosecuted by virtue of this act for any offence or offences committed f p 478 THE MAGISTRATE'S MANUAL. contrary to the last six sections, unless such prosecution be commenced within twelve months after the oflfence committed." {Ih. s. 12.) Riots near Public Works. — WJien and where this Act to he in force. — " The governor in council may, as often as occa- sion requires, declare by proclamation the several places in this province within the limits whereof any canal or other public provincial work, or any railway, canal, or other work undertaken or carried on by any incorporated company under authority of any act of parliament, is in progress of construc- tion, or such places as are in the vicinity of any such canal or railway or other work as aforesaid, within which he deems it necessary that this act should be in force ; and this act shall, upon and after the day to be named in any such proclamation, take effect within the places designated in such proclamation. 2. " And the Governor in council may in like manner, from time to time, declare this act to be no longer in force in any of such places ; but this shall not prevent the Governor in council from again declaring the same to be in force in any such place or places. . * 3. ^^ But no proclamation shall have effect within the limits of any city." (Con. Stat. C. c. 29, s. 1.) Possessing Arms or "Weapons. — " Upon and after the day to be fixed in such proclamation, no person employed in or upon any such canal, railway, or other work as aforesaid, within the limits specified in such proclamation, shall keep or have in his possession or under his care or control, within the limits specified in such proclamation, any gun, blunderbuss, pistol, or other fire-arm, or any stock, lock, barrel, or other part of such gun, blunderbuss, pistol, or other fire-arm ; or any bullets, sword-blade, bayonet, pike, pikehead, spear, spear- head, dirk, dagger, or other instrument intended for cutting or stabbing ; or other arms, ammunition,, or weapon of war, under a penalty of not less than two dollars nor more than four dollars for every such weapon found in his» possession." {Ih. B. 2.) THE magistrate's MANUAL. 479 bsion. Delivery of "Weapons. — "Within the time appointed as aforesaid in such proclamation, every person employed in or upon the canal, railway, or other work to which the same relates, shall bring and deliver up to some Justice of the Peace or commissioner, to be appointed by the Governor for the purposes of this act, every such weapon in his possession, and shall obtain from such Justice of the Peace or commis- sioner a receipt for the same." {Ih. s. 3.) Restitution op Weapons detained. — " When this act ceases to be in force within the place where any weapon has been delivered and detained in pursuance thereof, or when the owner or person lawfully entitled to any such weapon satisfies the magistrate or commissioner that he is about to remove immediately from the limits within which this act is at the time in force, the magistrate or commissioner may deliver up to the owner or person authorized to receive the same any such weapon, on production of the receipt so given for it." {Ih, s. 4.) Seizure op Weapons. — " Every such weapon found in the possession of any person employed as aforesaid after the day named in any proclamation as that on or before which such weapon ought to be delivered up, and within the limits or locality set forth in the proclamation bringing this act into force, shall be liable to be seized ; and being seized by any Justice, commissioner, constable, or other peace-oflSce, shall be forfeited to the use of her Majesty." {Ih. s. 6.) Penalty. — " If any person, for the purpose of defeating this law, receives or conceals, or aids in receiving or concealing, or procures to be received or concealed, within the limits within which this act is at the time in force, any such weapon as aforesaid, belonging to, or in the custody of any person employed in any such canal, railway, or other work, such person shall forfeit a sum of not less than forty dollars^ nor more than one hundred dollars; one-half to belong to the informer, and the other half to Her Majesty." {Ih. s. 6.) mm 11? '.'4 480 THE MAOISTRATE's MANUAL. Aerest op Febsons oabbtinq "Weapons. — " Any Justice or commissioner, constable or peace officer, or any person acting under a Justice's or commissioner's warrant, or in aid of any Justice, commissioner, constable or peace officer, may arrest and detain any person employed on any such canal, railway, or other work, found carrying any such weapon as aforesaid, within the limits or locality within which this act is at the time in force, at such time and in such manner as in the judg- ment of such Justice, commissioner, constable, or peace officer, or person acting under a warrant, affords just cause of suspicion that they are carried for purposes dangerous to the public peace; and the act of so carrying any such weapon by any person so employed, shall be a misdemeanor, and the Justice or commissiin he is or a mis- ice at the answer [76.8.8.) NG TO. squared ler sawed ansporta- of such river, the er Credit, . the river ^ Quinte, tion, Tay, in Upper ,re usually the rising )es not lop ks thereof they are ir streams, shall for every siich offence forfeit and pay a penalty not exceed- ing ten dollars." (Con. Stat. U. C. c. 47, s. 1.) Obstructing Rivers. — " In case any person throws, or in case any owner or occupier of a mill suffers or permits to be thrown into any river, rivulet or water-course in Upper Canada, except- ing those hereinafter mentioned, any slabs, bark, waste stuff or other refuse of any saw-mill (except saw-dust), or any stumps, roots, shrubs, tanbark, waste wood or bleached ashes ; or in case any person fells, or causes to be felled, in or across such river, rivulet or water-course, any timber, or growing or standi ing trees, and allow the same to remain in or across such river, rivulet or water-course, he shall incur a penalty not exceeding twenty dollars, nor less than twenty cents for each day during which such obstruction remains in, over or across such river, rivulet or water-course, over and above all damage arising there- from." (TJ. 8. 2.) Act not to extend to Dams, &o., used as Bridges. — " This act shall not apply to any dam, weir or bridge erected in or over any such river, rivulet or water-course, or to anything done bona fide in or for erecting the same, or to any tree cut down or felled across any such river, rivulet or water-course, for the purpose of being used as a bridge from one side thereof to the other, provided such tree does not impede the flow of water or passing of rafts." {Ih. s. 3.) Rivers where Salmon, &c., do not abound not included. — " This act shall not extend to the river St. Lawrence, nor to the river Ottawa, nor to any river or rivulet wherein salmon, pickerel, black bass or perch do not abound." {Ih. s. 4.) As TO OBSTRUCTIONS NOT WILFUL. — " Ko such obstructiou happening without the wilful default of any party, or in the lon&fide exercise of his rights, shall subject him to any fine or forfeiture, unle&s upon default to remove the obstruction after notice and reasonable time afforded for that purpose." (Ih, 8.6.) ■•'- • -^ •'.- - ■• — ' - How Fines to be recovered. — " All fines, penalties, forfeit- ures and damages under this act, when not together exceeding twenty dollars, may respectively, upon the oath of one credible 31 '•n i 482 THE magistrate's MANUAL. witness, be recovered with costs in a summary way in the manner provided by the act of the province of Canada relative to malicious injuries to property,* before any one or more of the Justices of the Peace for the county in which the offence has been committed, and unless the conviction be appealed from, if the fine, or penalty and damages (as the case may he\ together with the costs, be not paid at the time stated in the conviction, the convicting Justice or Justices, or one of them when more than one, shall issue his or their warrant of distress to levy the same out of the goods and chattels of the offender; and in case there be not sufficient goods and chattels found to satisfy the same, and in case the offender does not otherwise satisfy the amount within three days after conviction, then such Justice or Justices (as the case may he) shall, by warrant under hand and seal, commit the offender to the common gaol of the county in which he has been convicted for the term of ten days, in case the conviction be under the first section of this act, or thirty days in case the conviction be under the second section of this act, unless the fine, penalty, or forfeiture and damages (as the case may he) and costs be sooner paid." (II. B. 6.) , By-laws against obstructions to Steamers, &o. — "Every township council may also make by-laws for preventing the obstruction of streams, creeks and water-courses by trees, brushwood, timber or other materials, and for clearing away and removing such obstructions at the expense of the offenders or otherwise, and for levying the amount of such expense in the same naanner as taxes are levied, and for imposing penalties on parties causing such obstructions." (Ih. c. 54, s. 277.) '; / ROBBERY. Eobbery, as defined by legal writers, consists in the felonious 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 fear. * Reference should have been made to the act respectine the duties of Justices of the Peace out of sessions in relation to summary convictions and orders, which * virtually superseded 4 dc 5 Vic. c. 26, s, 80. THE MAGISTRATE 8 MANUAL. 483 in the slative ore of offence •pealed ay he\ [ in the f them distress fender ; ound to herwise len such it under ►1 of the 1 of ten I of this e second :ure and '" (Ih. " Every ing the )y trees, ng away offenders cpense in penalties 77.) felonious »r in his ^alue, by of Justices •dera, which When CAPrrAL. — " Any person who robs any other person, and at the time of or immediately before or immediately after such robbery, stabs, cuts, or wounds any person, shall be guilty of felony, and shall suffer death." (Con. Stat. C. c. 92, s. 1.) "When not Capital. — "Any person who robs any other person, or steals any chattel, money, or vahiable security from the person of another, shall be imprisoned in the penitentiary for any term not exceeding fourteen years nor less than two years, or be imprisoned in any otlier prison or place of con- finement for any term less than two years." {Ih. s. 2.) Assault with intent. — " Any person who assaults any other person with intent to rob shall be guilty of felony, and (except in cases where a greater punishment is provided by this act) shall be imprisoned in the penitentiary for any term not ex- ceeding three years nor less than two years, or be imprisoned in the penitentiary fca* any term hot exceeding three years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." {Ih. 8. 3.) Forcibly taking Money. — " Any person who, with menaces or by force, demands any chattel, money, or valuable security of any other person, with intent to steal the same, shall be guilty of felony, and shall be imprisoned in the penitentiary for any term not exceeding three years, or in any other prison or place of confinement for any term less than two years." {Ih. B. 4.) Robbery and Assault. — "Any person who, being armed with any offensive weapon or instrument, robs or assaults with intent to rob any person, or together with one or more person or persons robs or assaults with intent to rob any person, or robs any person, and at the time of or immediately before or immediately after such robbery beats, strikes, or uses any other personal violence to any person, shall be guilty of felony, and shall be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of con- finement for any term less than two years." {Ih. s. 6.) If il 484 THE MAOISTBATE's MANUAL. SCHOOLS— OFFENCES RELATING TO. CiiALLENOiNo V0TER8. — " If any person offering to vote at an annual or other section meeting is challenged as unqualified by any legal voter in such section, the chairman presiding at such meeting shall require tne person so offering to make the fol- lowing declaration : *^ I do declare and a£Brm that I am a freeholder (or householder) in this school section, and that I am legally qualified to yote at this meeting." " And every person making such declaration shall be permit- ted to vote on all questions proposed at such meeting ; but if any person refuse to make such declaration his vote, shall be rejected." (Con. Stat. U. 0. c. 64, s. 17.) " Penalty fob false Declaration. — " If any person wilfully makes a false declaration of his right to vote he shall be guilty •of a misdemeanor, and be punished by fine or. imprisonment at Tthe discretion of the court of Quarter Sessions, or by a penalty of not less than five dollars or more than ten dollars, to be fiued for and recovered with costs before a Justice of the Peace by the trustees of the school section for its use. {Ih. s. 18.) Refusing to serve as Trustee. — " If any person chosen as trustee refuses to serve, he shall forfeit the sum of five dollars ; and every person so chosen who has not refused to accept the ofiice, and who at any time refuses or neglects to perform its •duties, shall forfeit and pay the sum of twenty dollars, to be «ued for and recovered before a Justice of the Peace by the trustees of the school section for its use." (Ih. s. 23.) Penalty on Secretary-Treasurer. — "If any secretary- '.treasurer appointed by the school trustees of any school sectipn 'Or any person having been such secretary-treasurer, has in his possession any books, papers, chattels or moneys, which came iinto his possession as such secretary-treasurer, and wrongfully withholds or refuses to deliver up, or to account for and pay •over the same or any part thereof to the person, and in the manner directed by a majority of the school trustees for the school section then in ofiice, such withholding or refusing shall he a misdemeanor." (Ooa. Stat. U. C. c. 64, s. 130.) THE MAGISTRATE B MANUAL. 485 Summary Jurisdiction. — " Upon application to the jiulge of the county court, by a majority of such trustees, supported by their affidavit made before some Justice of the Peace, of such wrongful withholding or refusal, such judge shall make an order that such secretary-treasurer, or person having been such, do appear before him at a time and place to be appointed in the order." {Ih. s. 131.) Order, now to be served. — " Any bailiff of a division court, upon being required by such judge, shall serve such order personally on the party complained against, or leave the same with a grown-up person at his residence." {Ih. s. 132.) Judge to hear Case. — " At the time and place so appointed, the judge being satisfied that such service has been made, shall, in a summary manner, and whether the party complained of does or does not appear, hear the complaint ; and if he is of opinion that the complaint is well founded, such judge shall order the party complained of to deliver up, account for and pay over the books, papers, chattels, or moneys as aforesaid, by a certain day to be named by the judge in the order, together with such reasonable costs incurred in making the application as the judge may tax." {Ih. s. 133.) Non-compliance with Order. — " In the event of a non-com- pliance with the terms specified in such order, or any or either of them, the judge shall order the said party to be forthwith arrested by the sheriff of any county in which he may be found, and to be committed to the common gn^l of his county, there to remain without bail until such judge be satisfied that such party has delivered up, accounted for, or paid over the books, papers, chattels or moneys in question, in the manner directed by the majority of the trustees as aforesaid." {Ih. s. 134.) Discharges. — " Upon proof of his having so done, such judge shall make an order for his discharge, and he shall be discharged accordingly." (/J. s. 135.) . Other remedy not Affected. — " No such proceeding shall impair or affect any other remedy which the said trustees may have against such secretary-treasurer, or person having been such, or his sureties." (/J. s. 136.) ...^ . . 41 '<• Tit -1«4 I f'.J 480 THE MAGISTRATE 8 MANUAL. Personal Responsibility. — " If any part of the common school fund be embezzled or lost through the dishonesty or faithlessness of any party to whom it has been entrusted, and proper security against such loss has not been taken, the person whoso duty it was to have exacted such security shall bo personally responsible for the suras so embezzled or lost, and the same may be recovered from him by the party entitled to receive the same by action at law in any court having jurisdic- tion to the amount, or by information at the suit of the crown." {Ih. s. 137.) Penalty fob false Reports and Registers. — " If any trus- tees of a common school knowingly signs a false report, or if any teacher of a common school keeps a false school register, or makes a false return, witli the view of obtaining a larger sum than the just proportion of school moneys coming to such common school, such trustee or teacher shall for each oftence forfeit to the common school fund of the township the sum of twenty dollars, for which any person whatever may prosecute him before a Justice of 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 be prosecuted for a misde- meanor. {Ih. 8. 138.) Disturbers of Schools, how punished. — " Any person who wilfully disturbs, interrupts or disquiets the proceedings of any fichool meeting authorized to be held by this act, or any school established and condr ted under its authority, or wilfully inter- rupts or disquiets any grammar, common or public school, by rude or indecent behavior, 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 school, shall, for -each offence on conviction thereof before a Justice of the Peace, on the oath of one credible witness, forfeit and pay for common •Hi TnE MAOIITBATK 8 MANUAL, 487 Bchool purpoBcs, to the bcIuxjI section, ci'fy, town or village within which the offence was couiinitted, nucb sum not exceed- ing twenty dollars, together w ith the cr any ma- ame to re than on gaol jly pnb- reof, be J, or be le court ition for 3fendant justilica- )n to an 3 benefit plea the thereof." arged as was for ublished, on such sentence, Travated to prove dant may e defend- er preju- i the trial )f a libel, to which the plea of not guilty has been pleaded, evidence is given which establishes a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant may prove (and if proved, it shall be a good defence), that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part." (75. s. 13.) Costs. — " In the case of an indictment or information by a private prosecutor, for the publication of any defamatory libel, if judgment be given against the defendant he shall be liable for the costs sustained by the prosecutor by reason of such indictment or information ; and if judgment be given for the defendant, he shall be entitled to recover from such prosecutor the costs sustained by the defendant by reason of such indict- ment or information." (/J. s. 14.) " The costs in such cases shall, at the option of the party in whose favour the same are to be taxed, be taxed by either of the clerks of the crown and pleas at Toronto, or by the deputy-clerk of the crown in the county where such trial tooS place." {Ih. s. 15.) "Process of contempt and arrest for non-payment of costs having been abolished by the fourth and tenth sections of the act passed in the twenty second year of Her Majesty's reign, chapter thirty-three (A.D. 1859), to extend the provisions of the act for the abolition of imprisonment for debt, and as pro- vided in the third and thirteenth sections of the Consolidated Statutes for Upper Canada, chapter twenty-four, respecting arrest and imprisonment for debt ; therefore, the costs men- tioned in the two last preceding sections of this act shall be recoverable on any rule or order of the court of Queen's Bench or Common Pleas, or of any Judge of either of the said Superior courts of common law, or on the rule or order of the county court in the county in which such indictment or in- formation was tried, or of any Judge of such county court, in the manner provided in the nineteenth section of the said Consolidated Statute, and subject to the other provisions of M -fl»'. • 1- '.,,; h\ '■ if 1 ?''!. \'i' :■■%• m 494 THE MAOIBTBATE'S MANUAL. the said Consolidated Statute so far as material and applicable ; and such proceedings shall be had on any such rule or order as may, at the time this act takes effect, be had in any case for non-payment of costs, pursuant to an order or rule of either of the said superior courts, and all proceedings for the recovery of such costs shall be entitled in the court of oyer and terminer for the county in which such trial was had." {Ih. s. 16.) ..V,. SMUGGLING. Using False Invoices. — " If any person knowingly and wil- fully, with intent to defraud the revenue of this province, smuggles or clandestinely introduces into this province any goods subject to duty, without paying or accounting for the duty thereon, or makes out or passes or attempts to pass through the custom house any false, forged or fraudulent invoice, or in any way attempts to defraud the revenue by evading the payment of the duty, or of any part of the duty, on finy goods, every such person, his, her and their aiders or abet- tors shall, in addition to any other penalty or forfeiture to which they may be subject for such offence, be deemed guilty of a misdemeanor, and on conviction shall be liable to a pen- alty not exceeding two hundred dollars or to imprisonment for a term not exceeding one year, or both, in the discretion of the court before whom the conviction is had." (Con. Stats. C. c. 17, s. 55.) Offering for Sale Goods pretended to be Smuggled. — " If any person offers for sale any goods under pretence that the same are prohibited, or have been unshipped and run on shor*^ or brought in, by land or otherwise, without payment of ducies, then and in such case all such goods (although not liable to any duties nor prohibited) shall be forfeited, and every person offer- ing the same for sale shall forfeit the treble value of such goods, or the penalty of two hundred dollars, at the election of the prosecutor, which penalty shall be recoverable in a summary way before any one or more Justices of the Peace ; and in THE magistrate's MANUAL. 495 plicable ; or order any case r rule of s for the t of oyer vas had." y and wil- province, >vince any Liig for the >t8 to pass fraudulent revenue by he duty, on srs or abet- •rfeiture to |med guilty e to a pen- ionment for ition of the Stats. C. default of payment on conviction, the party so offending shall be committed to any of Her Majesty's gaols for a period not exceeding sixty days." {Ih. s. 56.) Harbouring Smuggled Goods. — " If any person knowingly harbors, keeps, conceals, purchases, sells or exchanges any goods illegally imported into this province, (whether such goods are dutiable or uot,) or whereon the duties lawfully payable have not been paid, such person shall for such offence forfeit treble the value of the said goods, as well as the goods themselves." {11. s. 57.) Company of Persons found with Smuggled Goods. — "If any five or more persons in company are found together, and they or any of them have any goods liable to forfeiture under this act, every such person shall be guilty of misdemeanor and punishable accordingly." (Ih. s. 58.) Hiring Persons to assist in Smuggling. — " Any person who by any means procures or hires any person or persons, or who deputes, authorizes or directs any person or persons to assemble for purpose of being concerned in the landing or unshipping or carrying or conveying any goods which are pro- hibited to be imported, or the duties for which had not been paid or secured, shall for every person so hired forfeit the sum of one hundred dollars." {Ih. s. 59.) Offences wnn regard to warehoused Goods, Fraudu- lently Concealing, &o. — 1. " If any warehoused goods are fraudulently concealed in or removed from any public or private warehouse in this province, such goods shall be forfeited ; and any pereon fraudulently concealing or removing such ,^oods, or aiding or abetting such removal, shall incur the pen- alties imposed on persons illegally importing or smuggling goods into this province. FraudulenUy Opening Warehouse. — 2. " And if the importer or owner of any warehoused goods, or any person in his employ, by any contrivance fraudulently opens the warehouse in which the goods are, or gains access to the goods except in the pre- sence of, or ^ith the express permission of the proper officer of 4 ■!: 4r m. 496 TUB MAGISTRATE'S MANUAL. the customs acting in the execntion of his duty, such importer or owner shall for every such offence forfeit the sum of one thousand dollars. Altering Marks, — 3. "And any person wilfully altering, defacing or obliterating any marks placed by the officer of the customs on any package of warehoused goods, shall for every such offence forfeit the sum of five hundred dollars." {Ih. 8. 60.) FOEFEITUBE OF YeSSELS ASSISTING TO LAND SMUGGLED GoODS. — " All vessels, with the guns, tackle, apparel and furniture thereof, carriages, harness, tackle, horses and cattle used in the removal of any goods liable to forfeiture under this act, shall be forfeited ; and every person assisting or otherwise concerned in the unshipping, landing or removal, or in the harbouring of such goods, or into whose hands or possession the same know- ingly come, shall, besides the goods themselves, forfeit treble the value thereof, or the penalty of two hundred dollars, at the election of the officer of the customs or of the party suing for the same." {Ih. s. 61.) Vessels hovering. — "If any vessel is seen hovering (in British waters) within one league of the coasts or shores of this province, any officer of customs may go on board and enter into such vessel, and freely stay on board such vessel while she remain within the limits of this province ; and if such vessel is bound elsewhere, and so continues hovering for the space of twenty-four hours after the master has been required to depart by such officer of the customs, such officer may bring the vessel into port, and examine her cargo, and if any goods prohibited to be imported into this province are found on board, then such vessel, with her apparel, rigging, tackle, stores and cargo, shall be forfeited ; and if the master or person in charge refuses to comply with the lawful directions of such officer, or does not truly answer such questions as are put to him respecting such ship and vessel, or her cargo, he shall forfeit and pay the sura of four hundred dollars." (/J. s. 62.) •» Smuggled Gk)ODS stopped on Suspicion. — " If any such goods are stopped or taken by such police officer on suspicion that the THE magistrate's MANUAL. 407 1 nporter L of one iltering, sr of tlie yr every J." (/&. ID Goods. furniture led in the ;, shall he Lcemed in ouring of ,ine know- feit trehle ars, at the y suing for .vering (in sres of this and enter while she luch vessel he space of d to depart the vessel prohibited I, then such ^argo, shall refuses to 3r does not acting such ly the sura such goods ion that the same have been feloniously stolen, such officer shall carry the same to the police office to which the offender is taken, there to remain until and in order to be produced at the trial of the said offender ; and in such case the officer shall give notice in writing to the collector or principal officer of Her Majesty's customs at the port nearest to the place where such goods have been detained of his having so detained the said goods, with the particulars of the same : and immediately after the trial all such goods shall be conveyed to and deposited in the custom house or other place appointed, as aforesaid, and proceedings relative to the same shall be liad according to law." {Ih. s. 66.) Police Officer neglecting to obey this Section.- -"And in case any police officer having detained such goods neglects to convey the same to such warehouse, or to give such notice of having stopped the same as before described, such officer shall forfeit the sum of one hundred dollars ; and such penalty shall be recoverable in a summary way before any one or more Jus- tices of the Peace, and in default of payment the party so offending shall be committed to any of her Majesty's gaols for a period not exceeding thirty days." (Ibid.) Forging Marks, &c. — " If any person at any time forges or counterfeits any mark or brand to resemble any mark or brand provided or used for the purposes of this act, or forges or coun- terfeits the impression of any such mark or brand, or sells or exposes to sale, or has in his custody or possession any goods with a counterfeit mark or brand, knowing the same to be counterfeit, or uses or affixes any such mark or brand to any other goods required to be stamped as aforesaid, other than those to which the same was originally affixed, such goods so falsely marked or branded shall be forfeited, and every such offender, and his aiders, abettors or assistants, shall, for every such offence forfeit and pay the sum of two hundred dollars ; which penalty shall be recoverable in a summary way before any two Justices of the Peace in this province, and in default of payment the party so offending shall be committed to any of her Majesty's gaols in this province for a period not exceed- ing twelve months." {Ih. s. 67.) 32 )• ^m i '■it-' 498 THE MAOISTBATE's MANUAL. COUNTEBFEITINO, OR USING COUNTERFEITED PaPERS. — " If any person counterfeits or falsifies^ or uses when so counterfeited or falsified, any paper or document required under this act or for any purpose therein mentioned, whether written, printed, or otherwise, or by any false statement procure such document, or forges or counterfeits any certificate relating to any oath, affirmation or declaration hereby required or authorized, knowing the same to be so forged or counterfeited, such person shall be guilty of a misdemeanor, and being thereof convicted shall be liable to be punished accordingly." (Ih. s. 68.) Officers employed for the Prevention of Smuggling. — " All officers and persons employed under the authority of any enactment in chapter sixteen of these Consolidated Statutes of Canada, or in the collection of the revenue within tliP meaning of that act, or under the direction of any officer or ofiicers i)i the customs department, or being an officer of the said depart- ment, shall be deemed and taken to be duly employed for the prevention of smuggling ; and in any suit or information the averment that such party was so duly employed shall be sufficient proof thereof, unless the defendant in such suit or information shall prove to the contrary. " Every such officer or person as aforesaid, may upon infor- mation or upon reiasonable ground of suspicion, detain, open, and examine any package suspected to contain prohibited pro- perty or smuggled goods, and may go on board and enter into any vessel, boat, canoe, carriage, waggon, cart, sleigh or other vehicle or means of conveyance of any description whatsoever, and may stop and detain the same, whether arriving from places beyond or within the limits of this province, and may rummage and search all parts thereof, for prohibited, forfeited, or smuggled goods : and if any such prohibited, forfeited, or smuggled goods are found in qny such vessel or vehicle, the officer or person so employed may seize and secure such vessel or vehicle, together with all the sails, rigging, tackle, apparel, horses, harness and other appurtenances, which at the time of such seizure belong to or are attached to such vessel or vehicle, with all goods and other things laden therein or thereon, and the same shall be forfeited. TUE magistrate's MANUAL. 490 ." If any feited or ,ct or for inted, or jcument, my oath, ithorized, ill person convicted 18.) OGLING. — ity of any Statutes of ?■ meaning officers in lid depart- red for the nation the >e sufficient iiformation ipon infor- ain, open, libited pro- enter into gh or other whatsoever, •iving from e, and may d, forfeited, brfeited, or vehicle, the such vessel :le, apparel, the time of jl or vehicle, hereon, and " Tlie officer or person in the discharge of the said duty may call in such lawful aid and assistance in the Queen's name as may be necessary for securing and protecting such seized vessels, vehicles or property : And if no such prohibited, for- feited, or smuggled goods are found, such officer or person, having had reasonable cause to suspect that prohibited, forfeited or smuggled goods would be found therein, shall not be liable to any prosecution or action at law for any such search, deten- tion or stoppage. lie/using to Stop or Assist. — "All masters or persons in charge of any such vessels, and all drivers or persons conduct- ing or having charge of such vehicles or conveyances, refusing to stop when required to do so by such officer or person as aforesaid in the Queen's name, and any person being present at any such seizure or stoppage, and being called upon in the Queen's name by such officer or person to aid and assist him in a lawful way, and refusing so to do, shall forfeit and pay the sum of two hundred dollars, which penalty shall be summarily recovered before any two Justices of the Peace in this province, and in default of payment the offender shall be committed to any of her Majesty's gaols in this province for a period not exceeding six months. {Ih. s. 70.) . , Appeals. — "An appeal shall be from the conviction of any Justices of the Peace under this act to the Quarter Sessions, to be tried by a jury, in the same manner as from convictions in any case of summary punishment allowed by law, on fur- nishing security by bond or recognizance with two sureties to the satisfaction of such convicting Justices, to abide the event of such appeal." (lb. s, 88.) Felonies — Removing goods seized. — " If any person what- ever, whether pretending to be the owner or not, either secretly or openly, and whether with or without force or violence, takes or carries away any goods, cairiage, vessel or other thing which has been seized or detained on suspicion, as forfeited under this act, before the same has been declared by competent authority to have been seized without due cause, ^d without the permission of the officer or person having seized the same, ^m jfei !t'j| 'm 600 THB MAOIBTRATE'B MANUAL. or of some competent authority, such person shall be deemed to have stolen such goods, being the property of her Majesty, and to bo guilty of felony, and shall be liable to punishment accordingly." {Ih. s. 63.) Assaulting^ tfec, Officers. — " If any person under any pre- tence, either by actual assault, force or violence, or by threats of such assault, force or violence, in any way resists, opposes, molests or obstructs any officer of customs, or any person act- ing in his aid or assistance, in the discharge of his or their duty under the authority of this act, or any other law of the pro- vince relating to custonis, trade or navigation ; Firing at Vessels. — " Or wilfully or maliciously shoots at or :attempt8 to destroy any vessel belonging to her Majesty or in the service of the province ; Wounding Offi^rs^ cfec. — " Or maims or wounds any officer of the army, navy, marine or customs, or any person acting in his aid or assistance, while duly employed for the prevention of smuggling, and in execution of his or their duty ; Having smuggled Goods, cfec, and being armed, dbc. — " Or if any person is found with goods liable to seizure or forfeiture, under this act or any other law relating to customs, trade or navigation, and carrying offensive arms or weapons, or in any way disguised ; Destroying Vessels, Goods, dsc. — " Or staves, breaks or in any way destroys any such goods before or after the actual seizure thereof; or scuttles, sinks or cuts adrift any vessel, or destroys or injures any vehicle before or after the seizure ; or wilfully and maliciously destroys or injures by fire or otherwise any vcustom-house, xxp any building whatsoever in which seized or forfeited goods are deposited or kept — such person, being con- victed thereof, shall be judged guilty of felony, and shall be punished accordingly." {Ih. s. 72.) ,, NoTK. — Fines and forfeitures under this act are not recoverable before a Jus- tice unless where a special provision is made to that effect; but offences which are hereby made'fdlonies and misdemeanors, of course come under the Justice's Jurisdiction as indictable offences. tr - .i^t* ?^ > ? THR MAOISTRATR's MANITAL. 601 eemed ajesty, jliment ny pre- threats )ppo8e8, jon act- eir duty the pro- ots at or jty or in ny officer acting in revention — " Or if 'orfeiture, trade or )r in any or in any lal seizure [r destroys >r wilfully Irwise any seized or >eing con- Id shall be , before a Jub- Iffences which the Justice's SHEEP— PROTECTION OF, IN UPPER CANADA. D008 WORRYING Sheep may be killed. — " It shall 1)0 lawful for any person to kHI any dog in the act of pursuing or worry- ing or destroying sheep, elsewhere than on land belonging to the owner of such dog." (27 V. ch. 20, s. 1.) Owners of Dogs may be summoned. — " On complaint made in writing on oath before any Justice of the Peace for any city, town or county, or union of counties in Upper Canada, that any person residing in such city, town or county, or union of counties, owns or \\a& in his possession a dog which has within six months previous worried and injured or destroyed any sheep, such Justice of the Peace may issue his summons, directed to such person, stating shortly the matter of such complaint, and requiring such person to appear before him at a certain time and place therein stated, to answer to such com- plaint, and to be further dealt with according to law." {Ih. 8.2.) Proceedings, now regulated. — " The proceedings on such complaint and summons shall be regulated by the act respect- ing the duties of Justices of the Peace out of sessions, in rela- tion to summary convictions and orders, which shall apply to cases under this act." {lb. s. 3.) Justice may order that Dog be destroyed. — " In case any person is convicted on the oath of a credible witness, of own- ing or having in his possession a dog which has worried and injured or destroyed any sheep, the Justice of the Peace may make an order for the killing of such dog (describing the same according to the tenor of the description given in the complaint under the evidence) within three days, and in default thereof may, in his discretion, impose a fine upon such person not exceeding twenty dollars, with costs ; and all penalties imposed under this act shall be applied to the use of the municipality in which the defendant resides." {Ih. s. 4.) Conviction no bar. — Ko conviction under this act shall be a bar to any action by the owner or possessor, as aforesaid, of ' I' If t'l ii.) 602 THE magistrate's MANUAL. any slieep, for the recovery of damages for the injury done to such sheep, in respect of which such conviction is had." {Ih. s. 5.\ Not necessary to prove knowledge of propensity.- " It shall not be necessary for the plaintiif, in any action of dam- ages for injury done by a dog to sheep, to prove that the defendant was aware of the propensity of the dog to pursue or injure sheep ; nor shall the liability of the owner or possessor, as aforesaid, of any dog, in damages for any injury done by such dog to any sheep, depend upon his previous knowledge of the propensity of such dog to injure sheep." {II. s. 6.) Defence for killing a Dog. — " The defendant, in any action of damages for killing a dog under the first section of this act, may plead the general issue and give this act and the special matter in evidence: and by section eight the act is limited to Upper Canada." {Ih. s. 7.) SPIRITUOUS LIQUORS. It is proposed to quote — '^v 1st. The law which applies only to the licensing of taverns and shops in cities ; 2nd. The law applicable to places other than cities ; 3rd. Those clauses respecting licenses which apply to all municipalities; and 4th. The act for tlie punishment of persons selling liquor without license. In Cities. — " The commissioners of police in cities are em- powered to grant certificates for tavern licenses for the retail of spirituous, ferme: .ted, or other manufactured liquors to be drunk in the inn, ale-house, beer-house, or other house, and to grant certificates for shop licenses." (25 Vic. c. 23, sec. 2, sub. sec. 1.) . i dumber and AGCommodation. — " The board of commis- sioners of police in any city shall not grant certificates for tavern licenses in any year in a proportion greater than one for every two hundred and fifty souls resident in such city, as THE magistrate's MANUAL. 503 shewn by the then last census or any subsequent special enu- meration taken by order of the city council concerned ; nor shall more than one in every twenty certificates of tavern licenses granted or issued in any city be granted or issued for any house or place unprovided with the following accommodations, that is to say : Four or more bedrooms, with the suitable com- plement of bedding and furniture for each, in addition to such bedrooms, bedding, and furniture as may be needed for the use of the family of the tavern-keeper." {Ih. s. 3.) Penalty. — " Any oflScer or person who issues a license con- trary to the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than forty dollars nor more than one hundred dollars, or may be imprisoned for a period not exceeding thirty days, or both, at the discretion of the court." {Ih. s. Y.) Municipalities not Cfties. — " The council of every town- ship, town, or incorporated village, may pass by-laws — 1st. For granting tavern or shop licenses ; 2nd. For declaring the terms and conditions required to be complied with by the applicant for license, and the security to be given by him for observing the same ; 3rd. The declaring the security to be given by an applicant for a shop or tavern license for observing the by-laws of the municipality ; 4th. For limiting the number of tavern or shop licenses respectively.* 5th. For regulating the houses or places licensed, the time the licenses are to be in force (not exceeding one year), and the sums to be paid therefor respectively. (Con. Stat. U. C. c. 54, 8. 246.) Condition precedent. — ^Municipality cannot issue licenses till at least thirty of the resident electors of the municipality, by petition, pray for the same. (23 Vic. c. 53, s. 1.) Accommodation. — Every tavern shall contain, in addition to what may be needed for the family of the tavern-keeper, * They cannot license more than one for every two hundred and fifty souls in the municipality, as shewn by the last census. (26 Ylc. c. 63, s. 8.) U <' 1' I I' ■'^mm V 1 » B<»| 604 THE magistrate's MANUAL. not less than four bedrooms, with suitable bedding and furni- ture, and shall have attached to it proper stabling for at least six horses. {Ih. s. 3.) Exceptions. — In towns, the corporation may exempt three taverns from the necessity of having the accommodation re- quired in last section. {Ih. s. 4.) Penalty. — "Any officer of a municipality who issues a license contrary to the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall pay a fine of not less than forty dollars nor more than one hundred dollars, or may be imprisoned for a period not exceeding thirty days, or both." {Ih. s. 6.) , Applicable to all MuxiciPALrriES. — No License required. — " No tavern or shop license shall be necessary for selling any liquors in the original packages in which the same have been received from the importer or manufacturer, provided such packages respectively contain not less than five gallons or one dozen bottles." {Ih. s. 249.) Notice of License. — " Every person who keeps a tavern or other house or place of public entertainment, and has a tavern license, shall exhibit over the door of such tavern, house, or place, in large letters, the words ' Licensed to sell wine, beer, and other spirituous or fermented liquors,' under a penalty in default of so doing of one dollar, recoverable with costs before any Justice of the Peace, upon the oath of one credible wit- ness, one half of which penalty shall go to the informer and the other half to the municipality." {Ih. s. 251.) Not to he consumed in Shop. — "Shop licenses not to au- thorize sale of liquors to be consumed upon the premises." {Ih. 8. 252.) Transfer of License. — "Any inspector of licenses may, in his discretion, endorse on any license permission to the person holding the license to sell liquors mentioned in his license at any place out of his house, or to remove from the house licensed to another house situate within the same muni- cipality." {Ih. s. 260.) , THE magistrate's MANUAL. 505 Disorderly Inns. — " The mayor or police magistrate of a town or city, with any one Justice of the Peace, or the reeve of a township or village, with any one Justice of the Peace, upon complaint made on oath to them or one of them^ of riotous or disorderly conduct in any inn, tavern, ale, or beer- house situate within their jurisdiction, may summon the keeper of the inn, tavern, ale, or beer-house to answer the com- plaint, and may investigate the same summarily, and either dismiss the complaint with costs to be paid by the com- plainant, or convict the keeper of having a riotous or dis- orderly house, and annul his license or suspend the same for not more than sixty days, with or without costs, as in their discretion may seem just." {Ih. s. 264.) ■t^' ■J lOUse, or SPIRITUOUS LIQUORS— OFFENCES RELATING TO. Sale of, near Public "Works. — " No person shall barter, sell, or exchange or dispose of, directly or indirectly, to any other person, any alcoholic, spirituous, vinous, fermented or other intoxicating liquor, or any mixed liquor a part of which is spirituous or vinous, fermented or otherwise intoxicating, — and every such liquor or mixed liquor shall be included in the expression ' intoxicating liquor,' when used in this act — nor shall expose, keep or have in his possession for sale, barter or exchange, any intoxicating liquor, at any place not included within the limits of any city, incorporated or other town or village, and being within three miles of the line of any railway, canal, or other public work in progress of construction, whether such work be constructed by the government of this province or by any incorporated company, or by private enterprise ; nor shall any person obtain or receive a license to sell any intoxi- cating liquor at any such place as aforesaid, and any such license, if granted, shall be null." (Con. Stats. C. ch. 30, s. 1.) Governor may declare Works wrrniN this Act. — " If any doubt at any time arise as to whether any work then in pro- gress dees or does not come within the meaning of this section, the governor, if he sees fit, may declare by proclamation that 506 THE magistrate's MANUAL. such work is within the meaning of this section, and that the prohibition herein contained applies to any place within three miles of the line thereof, which line may be described and defined in such proclamation ; and the declaration contained in such proclamation shall have the like force as if contained in this act, and the said prohibition shall apply accordingly." {Ih. s. 1, sub 8. 1.) Penalty. — "Any person who, in contravention of this act, by himself, his clerk, servant or agent, exposes or keeps for sale, or barters or sells, disposes of, gives or exchanges for any other matter or thing, to any other person, any intoxicating liquor, shall be liable to a fine of twenty dollars on the first conviction, forty dollars on the second, and on the third and every subsequent conviction to such last-mentioned fine and imprisonment for a period not m^re than six months, such fine to be paid over to the chamberlain, treasurer, clerk, or secre- tary-treasurer of the municipality in which the offence is proved to have been committed, for the use of the municipality, and be applied to such public purposes as the council thereof may direct. ^*And in default of payment of any fine and costs under this act, with the costs of prosecution, at the time of conviction, the offender 6h„ll be imprisoned until the same be paid, under warrant of the Justice, reeve, mayor, police magistrate, recor- der or judge before whom the conviction is had ; but no per- son shall be imprisoned for any offence under this act for fine or costs, or both for fine and costs, for a period exceeding six months.'* (/^. s. 2.) Agents. — " If any clerk, servant or agent, or other person in the employment or on the premises of another, sells, disposes of, or exchanges for any other matter or thing, or assists in selling, disposing of, exchanging for any other matter or thing any intoxicating liquor, in contravention of this act, for the person in whose service or on whose premises he is, he shall be held equally guilty mth the principal, and shall suffer the like penaUy." (/J.«,3,) THE magistrate's MANUAL. 507 Jurisdiction. — "Any Justice of the Peace, any reeve or mayor of a township or municipality, any police magistrate, recorder of a city or town, any judge of a circuit or division court, shall hear and determine summarily any case arising within his jurisdiction under this act ; and every person mak- ing a complaint against any other person for contravening this act, or any part or portion there 3f, before such Justice, reeve, mayor, police magistrate, recorder or judge, may be admitted as a witness ; and if such justice, mayor, reeve, police magis- trate, recorder, judge or commissioner before w^hom the exam- ination or trial is had so orders, as he may if he thinks there is probable cause for the prosecution, the defendant shall not recover costs though the prosecution fails." {Ih. s. 4.) Appeal. — " Ko appeal shall be allowed to any person com- plained of or convicted under this act, unless he enters into a recognizance or bond to the municipality in which the offence is alleged to have been committed in the sum of one hundred dollars, jointly and severally with two good and sufficient sure- ties, to prosecute his appeal, and to pay all costs, fines and penalties to be awarded against him upon the final determina- tion of the case. Recognizance. — " No recognizance or bond shall be taken except by the Justice, reeve, or police magistrate, recorder or judge before whom the complaint was made, or the offender tried, and the security shall be to his satisfaction ; and if the appeal is not successful, the recognizance or bond shall be forfeited, and the amount thereof become a debt due to the municipality within which the offence was committed, recover- able by action and in the name of the municipality. It shall be the duty of the secretary-treasurer, clerk, or treasurer, or chamberlain of such municipality to prosecute the same, and the money shall be applied in same manner as fines herein- before mentioned. If recognizance or bond mentioned in this section is not given within three days after conviction, &c,, appeal not to be allowed." {Ih. s. 5.) Search. — " K any three persons being voters, or entitled t6 vote at any municipal election of the municipality within I m-^ 508 THE magistrate's MANUAL. which the complaint is made, make oath or affirmation before any Justice, reeve, mayor or police magistrate, recorder or judge of the circuit court, or of a division court, that they have reason to believe and do believe that any intoxicating liquor intended for sale or barter, in contravention of this act, is kept or deposited in any steamboat or other vessel, or in any carriage or vehicle, or in any store, shop, warehouse or other building or place in such municipality, or on any river, lake or water adjoining the same, at any place within which such intoxicat- ing liquor is by this act prohibited to be sold or bartered, or kept for sale or barter, the said Justice, mayor, reeve or police magistrate, recorder or judge shall issue his warrant of search to any sheriff, police officer, bailiff or constable, who shall forth- with proceed to search the premises, steamboat, vessel, or place described in such warrant, and if any intoxicating liquor be found therein he shall seize the same, and the barrels, casks or other packages in which it is contained, and convey them to some proper place of security, and there keep them until final action is held thereon ; but no dwelling-house in which or in part of which, a shop or bar is not kept shall be searched unless one at least of the said complainants shall testify on oath to some act of sale of intoxicating liquor therein or therefrgjn, in contravention of this act, within one month of the time of making the said complaint. 2. " The owner or keeper of the liquor seized as aforesaid, if he is known to the officer seizing the same, shall be sum- moned forthwith before the Justice or person by whose warrant the liquor wcs seized ; and if he fails to appear, and it appears to the satisfaction of the Justice or person who issued the war- rant that the said liquor was kept or intended for sale or barter in contravention of this act, it shall be declared forfeited, with any package in which it is contained, and shall be destroyed by the authority of the written order to that effect of the Justice, reeve, mayor, police magistrate, recorder or judge, and in his presence, or in the presence of some person appointed to witness the destruction thereof, and who shall join with the officer by whom the said liquor has been destroyed, in attesting that fact on the back of the order by THE MAGISTRATE 8 MANUAL. 509 before rder or By have I liquor , is kept carriage building ►r water itoxicat- ered, or or police )f search all forth- , or place iquor be , casks or them to ntil final ich or in searched y on oath lerefnjm, time of aforesaid, be sum- warrant appears the war- or barter ted, with destroyed ct of the or judge, le person yho shall has been order by which it was done ; and the owner or keeper of such liquor shall pay a fine of forty dollars and costs, or be committed to prison for three months in default thereof." {lb. s. 6.) " If the owner, keeper or possessor of liquor seized under the provisions of this act is unknown to the officer seizing the same, it shall not be condemned and destroyed until the fact of such seizure has been advertised, with the number and description of the package as near as may be, for two weeks, by posting up a written or printed notice and description thereof in at least three public places. 2. " And if it is proved within such two weeks, to the satis- faction of the Justice, reeve, mayor, police magistrate, recorder or judge by whose authority such liquor was seized, that it was not intended for sale or barter in contravention of this act, it shall not be destroyed, but be delivered to the owner, who shall give his receipt therefor on the back of the warrant, which shall be returned to the Justice or person who issued the same ; but if after such advertisement as aforesaid, it appears to such Justice, reeve, mayor, police magistrate, recorder or judge, that such liquor was intended for sale or barter in contravention of this act, then such liquor, with any package in which it is con- tained, shall be forfeited, condemned and destroyed." {lb. s. 7.) Payments void. — " Any payment or compensation for liquor sold or bartered in contravention of this act, whether in money or securities for money, shall be held to be against law, equity, and good conscience ; and the amount or value thereof may be recovered from the receiver by the party making, paying or furnishing the same; and all sales, transfers, conveyances, heus and securities of every kind which, either in whole or in part have been given for or on account of intoxicating liquor sold or bartered in contravention of this act, shall be null against all persons, and no right shall be acquired thereby, and no action of any kind shall be maintained, either in whole or in part, for or on account of intoxicating liquor so sold or bar- tered in contravention of this act." {lb. s. 8.) Compelling attendance op "Wiinesses. — Any Justice of the Peace, police magistrate, recorder or judge, &c., is autho- . I li- v1 ■ t' ■''* J I 610 THE magistrate's MANUAL. rized to hear and determine offences against this act, and may summon any person as a material witness, who may be com- mitted to prison if refusing to attend, be sworn, or to affirm. (See ih. s. 9.) Protection op Justices. — "All the provisions of any law for the protection of Justices of the Peace, when acting as such, «fec., in matters relating to summary convictions and orders, so far as they are not inconsistent, apply to every functionary mentioned, and every functionary is deemed a Justice of the Peace within the meaning of the law, whether a Justice or not for other purposes." {Ih. s. 9.) Costs. — "Whenever judgment is rendered for costs, there shall be included therein fees for such prospective services as are necessary to enforce such judgment." (/5. s. 10.) "Want op Form. — " No action or other proceeding, warrant, judgment, &c., shall be held void or fail for defect of form, but all Justices and other functionaries required to perform any duty under this act shall regard it as a remedial statute, and favorably construe its provisions so as to suppress the mis- chief mentioned in the preamble." (See ib, s. 12.) SPIRITUOUS LIQUORS— LAW RESPECTING PROHIBITION. The municipal council of every county, city, town, township or incorporated village has power to pass by-laws for prohibit- ing the sale of intoxicating liquors and the issue of licenses therefor. (27 & 28 Vic. c. 18, s. 1.) No Liquor to be Sold. — " From the day on which such by-law takes effect for other purposes as aforesaid, and for so long thereafter as the same continues in force, no person, unless it be for exclusively medicinal or sacramental purposes, or for lond fide use in some art, trade, or manufacture, or as hereinafter authorized by the third or by the fourth sub-section of this section, shall, within such county, city, town, township, parish, or incorporated village, by himsdf, his clerk, servant, or agent, expose or keep for sale, or directly or indirectly, on THE magistrate's MANUAL. 511 1 may J corn- affirm. law for B such, clers, 80 tionary I of the 3 or not s, tnere rvices as warrant, of form, perforin . statute, the mis- nON. township prohibit- licenses ich such ad for so person, purposes, ire, or as lb-section township, servant, ectly, on any pretence or by any device, sell or barter, or in considera- tion of the purchase of any other property, give to any other person any spirituous or otlier intoxicating liquor, or any mixed liquor capable cf being used as a beverage, and part of which is spirituous or otherwise intoxicating." (ih. s. 12.) " And neither any license issued to any distiller or brewer ; nor yet any license for retailing on board any steamboat or other vessel, brandy, rum, whiskey, or other spirituous liquors, wine, ale, beer, porter, cider, or other vinous or fermented liquors ; nor yet any license for retailing on board any steam- boat or other vessel, wine, ale, beer, porter, cider, or other vinous or fermented liquors, but not brandy, rum, whiskey, or other spirituous liquors; nor yet any other description of license whatever, — shall in anywise avail to render legal any act done in violation of this section." {Ih. s. 12, sub. sec. 2.) Except by Manufacturers. — "Provided always, that any licensed distiller or brewer, having his distillery or brewery within such county, city, town, township, parish, or incor- porated village, may thereat expose and keep for sale such liquor as he shall have manufactured thereat, and no other ; and may sell the same thereat, but only in quantities not less than five gallons at any one time, to be wholly removed and taken away therefrom in quantities not less than five gallons at a time ; and provided also, that any such licensed brewer may sell bottled ale or porter of such manufacture in quanti- ties not less than one dozen bottles of at least three half-pints each at any one time, to be wholly removed and taken away in quantities not less than one dozen such bottles at a time." {IK sub. sec. 3.) And Merchants. — " Provided, also, that any merchant or trader having his store or place for the sale of goods within such county, city, town, township, parish, or incorporated vil- lage, may thereat keep for sale and sell intoxicating liquor, but only in quantities not less than five gallons (or, in the case of bottled wine, ale, or porter, than one dozen bottles of at least three half-pints each) at any one time, to be wholly removed 11'' m t ill 11 Ul 512 THE MAOISTBATE's MANUAL. and taken away in quantities not less than five gallons (or, in the case of bottled wine, ale, or porter, than one dozen such bottles) at a time." {Ih. sub. sec. 4.) Sale by Agent. — " Whoever, by himself, his clerk, servant, or agent, exposes or keeps for sale, or directly or indirectly, on any pretence or by any device, sells or barters, or in considera- tion of the purchase of any other property, gives to any other person any spirituous or other intoxicating liquor, or any mixed liquor capable of being used as a beverage, and a part of which is spirituous or otherwise intoxicating, in violation of the twelfth section of this act, shall incur a penalty of not less than twenty nor more than fifty dollars for each such offence ; and whoever, in the employment or on the premises of another, so exposes or keeps for sale, or sells, or barters, or gives, in violation of the said section, shall be held equally guilty with the principal, and shall incur the same penalty." {Ih. s. 13.) Penalties. — "Any prosecution for such penalty may be brought by or in the name of the collector of inland revenue within whose official district the offence was committed ; or by or in the name of the corporation of the municipality wherein the offence was committed ; or by or in the name of any person whether authorized by the council of such municipality or not ; and where the by-law is a county by-law, the corporation of the county, equally with that of the municipality comprised therein, and within which the offence was committed, may prosecute, or may authorize any person to prosecute." {Ih. s. 14.) " It shall be the duty of such collector of inland revenue to bring such prosecution, whenever he shall have reason to be- lieve that such offence has been committed, and that a prose- cution therefor can be sustained, and would not subject him to any undue measure of responsibility in the premises." {Ih. sub. sec. 3.) Bef.oee what Tribunal. — " Such prosecution may be brought before any stipendiary magistrate or before any two other Justices of the Peace for the district in Lower Canada, or for the county or imion of counties in Upper Canada, any the THE MAGISTRATE 8 MANUAL. 513 >r, in such rvant, ly,oii idera- otlier mixed hich is welfth ;wenty loever, jxposes tion of incipal, nay be revenue • or by ^Therein person or not ; ation of mprised d, may {IK 5) n renue to tobe- a prose- ect him eraises." may be any two Canada, Canada, wherein the oifenee was committed ; or, if the oifenco was committed in the district either of Montreal or Quebec, then before the recorder or judge of the sessions of the peace at Montreal or Quebec, as may be ; or if the offence was com- mitted in any other district in Lower Canada, then before the sheriff of such district, — or, if the offence was committed in any city or town in Upper Canada liaving a recorder or police magistrate, then before such recorder or police magistrate, — or if the offence was committed in any city or town in Upper Canada not having a recorder or police magistrate, then before the Mayor thereof; " If such prosecution is brought before any such stipendiary magistrate, recorder, judge of the sessions of the peace, sheriff, police magistrate or mayor, no other justice shall sit or take part therein ; " If such prosecution is brought before any two other Jus- tices of the Peace, the summons shall be signed by both of them; and no other Justice shall sit or take part therein, unless by reason of their absence, or the absence of one of them, nor yet in the latter case, unless with the assent of the other of them ; " In the next following twenty-four sections, the word ' Jus- tice' includes any such stipendiary magistrate, recorder, judge of the sessions of the peace, sheriff, police magistrate, or mayor, or any such two other Justices of the Peace, as the case may be."* (/&. sub-sees. 3, 4, 5, 6.) * LiMFiATioN. — " Every such prosecution shall be commenced within three months after the alleged offence, and shall be heard and determined in a summary manner, either upon the confession of the defendant, or upon the evidence of one or more witnesses." {Ih. s. 15.) . Allegations in Complaint, — " It shall not be necessary, in any such prosecution, to set forth or mention on the face of the complaint, summons, conviction, warrant of distress or * Though it would appear that offences under this act are now triable before one Justice under 28 Vic. ch. 23, sec. 1, yet it is advisable that at least two Jus- tices should preside in all such cases. ' « :l;l 614 THE MAOISTBATe's MANUAL. warrant of commitment, the by-law bringing the municipality within the special purview of this act; but such complaint, summons, conviction and warrants may be in the forms C, D, E, F and G respectively, hereto appended, or to the like effect ; and unless the defendant specially puts in issue the fact of such by-law being in force, such fact shall be presumed by the Jus- tice ; and if such fact is so put in issue, the production of a copy of such by-law, certified under the hand of the clerk or secretary-treasurer of the municipality, and having thereon a certificate under the hand of the same oflScer of the due publi- cation (if requisite), and communication to the collector of inland revenue of such by-law, or of such communication only, if publication thereof was not requisite, shall be conclusive proof of the passing and of the tenor thereof, and also of such publication and communication thereof, the whole as so certi- fied; and no fact so certified touching such by-law shall be incidentally put in issue or questioned in the course of any such prosecution." {Ih. s. 15.) Several Offences. — "Two or more offences by the same party may be included in any such complaint, provided the time and place of each offence is stated ; and in that case, the forms aforesaid shall be altered, so far as need may be, accord- ingly: " But whatever may be the number of the offences so in- cluded in one complaint, the maximum of penalty imposable for all shall in no case exceed one hundred dollars." {Ih. s. 17.) Ex parte. — " If in any such case the defendant fails to appear as required by the summons, the Justice may proceed ex parte to the consideration and hearing thereof, and may adjudicate therein, as fully and effectually to all intents as though the defendant had duly appeared in obedience to the summons." (/J. s. 18.) . . , . •>'■ Amendment. — "Any such complaint may be amended before final hearing, in any matter of form or substance, upon appli- cation to that effect, by or for the prosecutor, and without C9st8, unless otherwise specially ordered by the Justice ; and THK magistrate's MANUAL. 515 »ality laint, D,D, ffect; [ such ) JU8- i of a jrk or >eon a publi- ;tor of I only, elusive ►f such > certi- lall be of any e same led the ise, the accord- so in- posable {Ih. 8. appear ex parte udicate ugh the anions." d before n appU- without ■ce; and on swch amendment being made, tlio defendant (should ho require it) may have a furtlier delay to plead to the merits, or for plea and proof, as may bo ordered ; and if the complaint, in the opinion of the Justice, is so defective that a legal con- viction cannot be based upon it, and is not amended, the Jus- tice may dismiss the case, with or without costs, in his discre- tion." {Ih. s. 19.) Informality. — " No such prosecntion shall otherwise be dis- missed for any defect, informality, error or omission ; but if it appears that the defendant has been, or may have been, mate- rially misled thereby, the Justice may, on such terms as he thinks fit, adjourn the further proceedings in the case to a future day." {Ih. 20.) Costs. — "If any such prosecution is dismissed, the Justice, should he be of opinion that there was probable cause for the complaint, shall not award to the defendant costs against the prosecutor." {Ih. 21.) Service. — "Every summons or other process, proceeding, or paper, in any such case, may be served, and the service thereof certified under his oath of office, by any bailiif, or by any constable or peace officer, duly appointed for the locality wherein the same is pending." {Ih. 22.) Deposftions. — " In every such case, if the Justice so orders, or if either party so requires, the depositions of the witnesses shall be reduced to writing by the Justice, or by such clerk as the Justice may appoint to that end, and shall be filed of record in the cause ; such clerk shall be entitled to charge and receive, at the rate of ten cents for each hundred words of evidence so reduced to writing, or of two dollars j^er diem^ in the discretion of the Justice, — to be entered in taxation, and paid by either party, or partly by each party, as the conviction or judgment in the case may ordain ; and if no conviction or judgment is rendered therein within two months after the taking of such evidence, then the fees of such clerk shall be paid in equal shares by each party.''* {Ih. s. 23.) Proof of Date. — ^*^It shall not be necessary in any such case to prove that an offence was committed on the precise day ' V VJ\ t IT,.. M 516 THE MAGISTRATE 8 MANUAL. specified, in order to obtain a conviction ; provided it is proved that the same was committed on or about such day, and before the date of the complaint." {Ih. s. 24.) Evidence op Sale. — " In all such cases, the delivery of intox- icating liquor of any kind in or from any building, booth or place other than a private dwelling house or its dependencies, if any part thereof is used as a tavern, eating-house, grocery, shop, or other place of common resort, — such delivery in either case being to any one not hond fide a resident therein, — shall primd facie be deemed evidence of and punishable as a sale in violation of the twelfth and thirteenth sections of this act ; and any such delivery in or from a private dwelling house or its dependencies, or in or from any other building, booth or place whatever, to any one, whether resident therein or not, with payment or promise of payment, either express or implied, before, on or after such delivery, shall j^rimd facie be deemed evidence of and punishable as a sale in violation of the said sections." {Ih. s. 25.) Committal of Witness for refusing to answer. — " In any such case the Justice may summon any person represented to him as a material witness in relation thereto : and if such pereon refuses or neglects to attend pursuant to such summons, the Justice may issue his warrant for the arrest of such person, and he shall thereupon be brought before the Justice ; and if he refuses to be sworn or to affirm, or to answer any question touching the case, he may be committed to the common gaol, "there to remain until he consents to be sworn, or to affirm, and Jto answer." (/J. s. 26.) Interest, no excuse. — " No person shall be incompetent on saccount of interest, in the event of any such case, to give evi- «dence therein." {Ih. s. 27.) Witness bound to answer. — "Any person examined or called as a witness in any such case shall be bound to answer all questions put to him, and which the Justice deems relavent, notwithstanding his answers may disclose facts subjecting or tending to subject him to any penalty or other criminal pro- THE magistrate's MANUAL. 517 oved efore intox- •th or nicies, ocery, either —shall sale in t ; and or its r place b, with mplied, deemed he said In any nted to pei*son the person, and if uestion on gaol. >ns. irm, and etent on Tive evi- nined or o answer relavent, acting or inal pro- ceeding ; but his answers shall not be used against himself in any prosecution or criminal proceeding." (75.8.28.) Tampering with "Wftnesses. — "Any person who, either before or after the summons of any witness in any such case, tampers with such witness, or by any offer of money, or by threat or otherwise, directly or indirectly, induces or attempts to induce any such person to absent himself or herself or to swear falsely, shall be liable to a penalty of fifty dollars for each such offence." {Ih. s. 29.) Defendant may be Imprisoned. — " Whenever judgment is rendered under the said twelfth and thirteenth sections of this act for the amount of any penalty and costs, the Justice, if he sees fit, may call on the defendant to declare whether or not he possesses sufficient goods and chattels to satisfy the same, — and if the answer is affirmative, may further examine him as to the sufficiency of such goods and chattels, and as to their being or not being readily available for seizure under a warrant of distress ; and if the defendant either answers in the nega- tive, or refuses to answer, or fails to answer to the satisfaction of the Justice, he may be forthwith imprisoned under the warrant of the Justice in the common gaol of the district, or county, or union of counties, for a period of not less than one nor more than three months, counting from the day of his arrival as a prisoner at such gaol ; but the defendant, in that case, may at any time obtain his liberation from such imprison- ment, by making full payment ()i such amount and of all subsequent costs." {lb. s. 30.) Absence of Defendant. — " If the defendant is not present at the time of the rendering of such judgment, and it is made to appear to the satisfaction of the Justice, by affidavit, that the issue of a warrant of distress would be likely to fail of resizing the full amount thereof in penalties and costs, the defendant may be forthwith imprisoned in such common gaol under warrant of the Justice, for a period of not less than on© nor more than three months, counting from the day of his arrival as a prisoner at such gaol ; but the defendant, in that ■ ^ I 'im i-t,> 618 THE magistrate's MANUAL. case, may at any time obtain his liberation from such imprison- ment by making full payment of such amount and of all subsequent costs." {Tb. s. 31.) Imprisonment and Liberation. — " If the* Justice does not so interrogate the defendant, being presient, — or if the defendant being interrogated shows that he possesses a sufficiency of available goods and chattels to satisfy the amount of the judg- ment in penalty and costs, — or if in the absence of the defend- ant it is not shown to the satisfaction of the Justice that the issue of a warrant of distress would be likely to fail of realizing the full amount of the judgment in penalty and costs, — then in default of immediate payment, such amount shall be levied by warrant of distress out of the goods and chattels -of the defendant ; and in default of such goods and chattels, or in case of their being insufficient, the defendant shall be imprisoned in such common gaol, under warrant of the Justice, for a period of not less than one nor more than three months, counting from the day of his arrival as a prisoner at such gaol ; and the defendant, in that case, may at any time obtain liis liberation from such imprisonment by making full payment of such amount and of all subsequent costs." {Ih. s. 32.) Application of Penalties. — " In Upper Canada, all such penalties shall be disposed of in the following manner, that is to say: If by Collector. — " If the prosecution was brought by or in the name of a collector of inland revenue, and not under authorization from the council of a municipality, two-third parts shall belong to and retained by such collector, — but subject to the obligation of paying over one of such two-third parts to any person on whose information he may have instituted the prosecution ; and theremaining third part shall by the collec- tor be paid over to the Receiver General, for the Upper Canada Building Fund ; If by Municipality. — " If the prosecution was brought by .or in the name of the corporation of a municipality, or by or in the name of any person authorized by the council thereof, Pe THE magistrate's MANUAL. 619 the whole shall belong to ^uch corporation ; and the council of the municipality may pay over not more than one-half thereof, either to such person, or to any other person upon whose infor- mation the prosecution may have been instituted ; If by Private Party. — " If the prosecution was brought by or in the name of any person not so authorized, the penalty shall belong to the corporation of the municipality whose by- law is thereby enforced ; and in that case, the council may pay over to any other person upon whose information the prosecu- tion may have been instituted not more than one-half of the whole penalty, or may apply the same to municipal purposes, as they see fit." (/J. s. 34.) Indemnification. — " Any person bringing such prosecution under autho" ration from a municipal council, shall be indem- ooration of the municipality so authorizing < Id therein, whatever may be the result of the nified by tl'r him for all , prosecution ; " In Upper Canada, any person bringing such prosecution to a successful issue without having been so authorized, shall be indemnified by the corporation whose by-law is thereby enforced for any amount of costs which, without default on his part, he may have failed to recover from the defendant ; "Whenever any person is committed to gaol under the thirtieth, thirty-first, or thirty-second section of this act, the cost of his arrest and conveyance to gaol shall in like manner be borne by the corporation whose by-law is thereby enforced." (/J. s. 35.) No Appeal, &c. — ^** ISTo conviction, judgment or order, in any such case shall be removed by certiorari or otherwise into any of her Majesty's superior courts of record ; nor shall any appeal whatever be allowed from any such cc-nviction, judg- ment or order to any court of General Quarter Sessions, or other court whatever, when the conviction has been made by a stipendiary magistrate, recorder, judge of the sessions of the Peace, sheriff or police magistrate." (Ih. s. 36.) m 520 THE MAGISTRATE 8 MANUAL. Defect of By-laws. — " No by-law passed under authority and for enforcement of this act, shall be set aside by any court for any defect of procedure or form whatever ; " And no such by-law, adopted by the electors of a muni- cipality under the fourth and fifth sections of this act shall be set aside by any court for any defect whatever, whether of form or substance, affecting the requisition therefor, the authen- ticity or number of the signatures thereto, the qualification of the signers thereof, or any matter, thing or procedure ante- cedent to the first publication of the notice given for the poll taken thereon, unless the same be unauthorized by this act." (Ih. s. 37.) . ' ^ Obligation of Officees. — " Every duty devolving upon any municipal officer under any of the foregoing sections of this act, whether in Lower or in Upper Canada, shall be performed by such officer, with the same powers and under the same pen- alties and liabilities in all respects whatever as though the same devolved upon him under the express enactments of the Lower Canada Consolidated Municipal Act, or of the act chaptered fifty-four of the Consolidated Statutes for Upper Canada, as the case may be." {Ih. s. 38.) Presumptions. — " In prosecutions for sale or barter, in any locality where no by-law passed under authority and for the enforcement of this act is* in force, of intoxicating liquor of any kind, without the license therefor by law required, or con- trary to the true intent and meaning of the law in that behalf, it shall not be necessary that any witness should depose directly to the precise description of the liquor sold or bar- tered, or the precise consideration therefor, or to the fact of the sale or barter having taken place with his participation or to his own personal and certain knowledge ; but the Justice or Justices trying the same, so soon as it may appear to him or them that the circumstances in evidence sufficiently establish the infraction of law complained of, shall put the defendant on his defence, and in default of his rebuttal of such evidence, shall convict him accordingly." (27 & 28 Vic. c. 18, s. 39.) or ica THE magistrate's MANUAL. 621 arity jourt nuni- allbe ler of itben- lon of ante- le poll 8 act." on any of this •formed ne pen- he same 3 Lower kptered aada, as in any for the iquor of or con- tt behalf, depose or bar- e fact of pation or ustice or ;o him or establish iefendant evidence, ) i. 39.) May imprison "Witness. — " In every such prosecution, such Justice or Justices may summon any person represented to him or them as a material witness in relation thereto ; and if such person refuses or neglects to attend pursuant to such summons, the Justice or Justices may issue his or their war- rant for the arrest of such person ; and he shall thereupon be brought before the Justice or Justices, or Justices may issue his or their warrant for the arrest of such person ; and he shall thereupon be brought before the Justice or Justices, and if he refuses to be sworn or to affirm, or to answer any question touching the case, he may be committed to the common gaol, there to remain until he consents to be sworn or to affirm and to answer." {Ih. s. 39, sub. sec. 2.) Damages against Innkeepers.-^" Whenever in any inn, tavern, or other house or place of public entertainment, or wherein refreshments are sold, or in any place wherein intoxi- cating liquor of any kind is sold, whether legally or illegally, any person has drunk to excess of intoxicating liquor of any kind therein furnished to him, and while in a state of intoxica- tion from such drinking has come to his death by suicide, or drowning, or perishing from cold, or other accident caused by such intoxication, the keeper of such inn, tavern, or other house or place of public entertainment, or wherein refresh- ments are sold, or of such place wherein intoxicating liquor is sold, and also any other person or persons who for him or in his employ delivered to such person the liquor whereby such intoxication was caused, shall be jointly and severally {solid- airement) liable to an action as for personal wrong, if brought within three months thereafter, but not otherwise, by the legal representatives of the deceased person ; and such legal repre- sentatives may bring either a joint and several action against them, or a separate action against either or any of them ; and by such action or actions may recover such sum, not less than one hundred or more than one thousand dollars, in the aggre- gate of such actions, as may therein be assessed by the court or jury as damages." (/5. s. 40.) , Liability for Assault. — " If a person in a state of intox- ication assaults any person or injures any property, whoever \n 522 THE magistrate's MANUAL. furnished him with the liquor which occasioned his intoxication, if such furnishing was in violation of this act or otherwise in violation of law, shall be jointly and severally {solidairement) liable to the same action by the party injured as the person intoxicated may be liable to ; and such party injured, or his legal representatives, may bring either joint and several actions against the person intoxicated and the person or persons who furnished such liquor, or a separate action against either or any of them."* (/J. s. 41.) Notice not to furnish. — " The husband, wife, parent, brother, sister, tutor, guardian, or employer, of any person who has the habit of drinking intoxicating liquor to excess, or the parent, brother, or sister of the husband or wife of such person, or the tutor or guardian of any child or children of such person, may give notice in writing, signed by him or her, to any person licensed to sell, or who sells or is reputed to sell, intoxicating liquor of any kind, not to deliver intoxicating liquor to the person having .such habit ; and if the person so notified do at any time within twelve months after such notice, either himself, or by his clerk, servant, or agent, otherwise than in terms of a special requisition for medicinal purposes, signed by a licensed medical practitioner, deliver in or from any building, booth, or place occupied by him, and wherein or wherefrom any such liquor is sold, suffer to be delivered any such liquor to the person having such habit, the person giving such notice may, in an action as for personal wrong (if brought within six months thereafter but not otherwise) recover of the person notified such sum not less than twenty nor more than five hundred dollars, as may be assessed by the court or jury as damages ; and any married woman may bring such action in her own name, without authorization by her husband, and all damages recovered by her go to her separate use ; and in case of the death of either party, the action and right of action * The tavern-keeper who furnishes liquor after served with a notice not to deliver, under the forty-second section, will be liable under this section, and should be proceeded against. THE MAGISTRATE 8 MANUAL. 523 given by this section shall survive to or against his legal repre- sentatives."* {Ih. s. 42.) Void Securities. — " Any payment or compensation for liquor furnished in contravention of this act, or otherwise in violation of law, whether made in money or securities for money, or in labour or property of any kind, shall be held to have been received without any consideration, and against law, equity, and good conscience, and the amount of value thereof may be recovered from the receiver by the party who made the same ; and all sales, transfers, conveyances, liens, and securities of every kind, in whole or in part, made, granted, or given, for or on account of liquor so furnished in contravention of this act, or otherwise in violation of law, shall be wholly null and void, save only as regards subsequent purchasers or assignees for value, with notice ; and no action of any kind shall be maintained, either in whole or in part, for or on account of any liquor so furnished in contravention of this act or otherwise in violation of law."t {Ih. s. 43.) Sale between Saturday and Monday. — "In all places where by law intoxicating liquors, or any particular description or descriptions of such liquors, are allowed to be sold by retail, * The notice may be similar to the following, or to the like effect : Mr. Jefferson Smith, innkeeper, of the township of {or as the case may be) you will please take notice, as follows : Ist. That I the wife {or a son or daughter, as the case may he) of , of lot , in the ^—— concession of {or if in a city or town, give the street and uumber 2/ dwelling, or other good description) farmer. 2nd. That I reside with the said {or as the case may be.) 8rd. That the said has the habit of drinking intoxicating liquors to excess. 4th. That you are not to deliver intoxicating liquors to the said . The trial under this section may be in the division court, if not more than forty dollars claimed. At the trial, the person who brings the action should be prepared to prove : 1. The service of the notice, and date and hour of service ; 2. The relationship ; 8. The fact that the party has the habit of drinking intoxicating liquors to excess ; 4. The fact that liquor was furnished by the tavern-keeper, his clerk, servant, or agent, to the drunkard, after the service of the notice ; 5. The grief and anxiety the plaintiff sustains in consequence of the drunkenness. If the husband, when drunk, is violent and likely to do personal violence, it should be proved. f In the country it would be well to serve each tavern-keeper or other person licensed to sell liquor, within a few miles of the drunkard's home, with a notice, because money, dec, paid before notice cannot be recovered back. % 11 1 . 1 '■! 524 THE MAOISTRAmS ' MANUAL. no sale or other disposal of such liquors shall take place therein or on the premises thereof, or out of or from tlie same to any person wliomsoever, from the hour of nine on Saturday even- ing till the hour of six on the Monday morning thereafter, except in cases where a special requisition for medicinal pur- poses, signed by a licensed medical practitioner or by a Justice of the Peace, is produced by the vendee or his agent ; nor shall any such liquors be permitted to be drunk in any such place except by travellers or by persons bona fide resident, lodging or boarding thereat during the time prohibited by tliis section for the sale of the same. " For every offence under this section a penalty of not less than ten nor more than fifty dollars, with costs, shall, in case of conviction, be recoverable from and leviable against the goods and chattels of the person or persons who are the pro- prietors in occupancy or tenants or agents in company of such place or places, and who are found by himself, or herself, or themselves, or his, her or their servants or agents, to have committed or aided in committing such offence. {Ih. s. 44.) Officers may enter Tavern. — " Any police officer or con- stable being thereto authorized in writing, as hereinafter is provided, may at any time enter into any inn, tavern' or other house or place of public entertainment, or wherein refresh- ments or intoxicating liquors arfe sold, or reputed to be sold, whether legally or illegally ; and any person being therein or having charge thereof, who refuses, or after due summons fails to admit such police officer or constable into the same, or offers any obstruction to his admission thereto, shall be liable to a penalty of not less than ten nor more than fifty dollars for every such offence ; " Any two or more Justices of the Peace may grant such authorization to avail within any city, town, township, parish, or incorporated village, therein designated and being within the jurisdiction of such Justices, for any term of time therein specified, not exceeding three months ; " The Justices of the Peace who granted such authorization or any one or more of them, may at any time cancel the same, by a written order to that effect under their or his hand. THE magistrate's MANUAL. 525 tlierein to any y even- reafter, lal pur- Justice Lor shall ih place lodging J section not less , in case inst the the pro- 7 of such erself, or , to have s. 44.) jr or con- inafter is 'or other refresh- be sold, Jierein or .on5 fails , or ofiers ,ble to a loUars for rant such Ip, parish, ig within le therein liorization lancel the Ihis hand, delivered to such police officer or constable ; and any police officer or constable acting or assuming to act under any authori- zation after the same has been so cancelled, shall be guilty of a misdemeanor." (lb. s. 45.) * Forms to be used. — " Any person may be the informant or complainant in prosecuting under either of the last preceding two sections of this act ; all proceedings shall be begun within thirty days from the date of the offence ; all informations, complaints or other necessary proceedings may be brought and heard before any one or more Justices of the Peace for the district, or county, or union of counties, wherein the offence or offences were committed or done ; the mode of procedure in, and the forms appended to the Consolidated Statute of Canada respecting the duties of Justices of the Peace out of sessions in relation to summary convictions and orders, may be followed as regards all such cases and proceedings; and all penalties which may be recovered therein shall belong to the corporation of the city, town, township, parish or incorporated village wherein the offence was committed."* {lb. s. 46.) The penal clauses of Con. Stat. U. C. c. 54 having been repealed by 27 & 28 Yic. c. 18, it became necessary to amend the law, and the legislature at its last session passed the fol- lowing act : Penalty. — " If any person shall, without license duly issued by the competent authority, sell or cause to be sold any wine, rum, brandy or other spirituous liquors, beer, ale, cider or other fermented liquors, to be drunk in any ale-house, beer- house or other house or place of public entertainment in which the same are sold, or shall, without such license as aforesaid, sell or cause to be sold by retail any such liquors in any shop, store or place other than an inn, ale-house, beer-house or other house or place of public entertainment, or if any pergon being duly licensed to sell intoxicating liquors by wholesale or retail shall sell or cause to be sold any such liquors, in contravention of the law, every person so offending shall incur a penalty of * Penalty under 44th section, now under 29 Vic, to be divided between informer and municipality. :;■ 'i!! I /v. J 526 THE magistrate's MANUAL. not less than ten dollars nor more than fifty dollars, with costs, and may be convicted upon the oath of one or more credible witness or witnesses before any Justice or Justices of the Peace having jurisdiction in the place in which such offence is committed ; and it shall and may be lawful for such Justice or Justices to issue a warrant of distress to any constable or peace officer against the goods and chattels of the said offender, and in case no sufficient goods be found to satisfy such penalty and costs, then it shall and may be lawful for the said Justice or Justices to order that the persons so convicted be imprisoned in any common gaol in the county or city in which such con- viction takes place for any term not less than ten days nor more than thirty days, unless the amount of penalty and costs be sooner paid, and one-half of the said penalty shall go to the informer, the other half to the municipality." (28 Yic. c. 22, s. 1.) " The provisions of the act respecting Justices of the Peace, Consolidated Statites of Canada chapter one hundred and three, shall apply to proceedings under this act, except in so far as altered by this act." {Ih. s. 2.) " This act shall apply to Upper Canada only." {Ih, s. 3.) (C.) FORM OF COMPLAINT. Province op Canada, ^ A. B. (designate duly and sufficiently the District {or aw case may he) > corporation or other prosecutor^ as the case of °^ ) may require^) in behalf of Our Sovereign Lady the Queen, prosecutes C. D. of (designate duly and sufficiently the d^endant,) and complains : That the said 0. D., at [designate duly the municipality,) on {designate the time or times,) and at sundry times before or since, did {here state succinctly the offence charged,) contrary to the Temperance Act of 1864, then and there being fully in force ; whereby and by force of the said act, the said C. D. hath become liable to pay the sum of . Wherefore the said prosecutor prays that the said 0. D. be condemned to pay the said sum of , with costs. * -^•— ^— (D.) FORM OF SUMMONS. . \ Province OF Canada, ^ District (or as case may be) > To C. D. of (designate duly and sufficiently of 3 the defendant.) You are hereby commanded to appear before (us or me, as the case may he) the undersigned Justices of the Peace for the said district (or as the case may he) at {name the place,) on the day of at the hour of in the noon, {if the summons he issued hy two Justices and not by a THE MAOISTBATE^S MANUAL. 527 iosts, dible • the nee is ice or peace r, and ;y and ice or isoned sh con- ys nor d costs I to the Vic. c. Peace, •ed and )t in so 8.3.) iently the I the case Sovereign ently the duly the les before ry to the jreby and the sum mdemned ijtjfflciently case may w the case )f- — v^ \not by a tttpendiary magistrate, recorder, judge of the sessions of the Peace, or police magistrate, add here the icords or before such other Justices of the Peace for the said district, or as the case may le, as may then be there,) to answer to the matters charged against you by {designate the prosecutor,) who prosecutes you in Her Majesty's behalf, as the same are set forth in the complaint hereto annexed,— otherwise judgment will be given against you by default Given under our (or my) hand and seal, this day of in the year of Our Lord one thousand eight hundred and in the district [or as ease may he) aforesaid. {Signatures and Seals.) CERTIFICATE OF SERVICE. I, the undersigned, E. P. of {designate duly the bailiff or other party certifying,) do hereby certify, upon my oath of office, that on the day of , I did serve the within summons, and the complaint thereto an- nexed, on the within named defendant, at the hour of of the clock in the noon, by leaving a true and certified copy of the said summons and of the said complaint at the domicile of the said defendant, in the , speaking to — - — {or, if the service was personal, by speaking to him and leaving with him a true and certified copy of the said summons and of the said complaint at .) (Tbbe dated and signed in the ordinary manner.) (E.) FORM OF CONVICTION. Be it remembered that on the day of -, in the year Our Lord one thousand eight Province of Canada, ^ Diatnct (or as case may be) > of . ) hundred and , at {designate the place where the conviction is had) in the said district {or as ease may be), C. D., of {designate the defendant,) is convicted before the undersigned, G. H., Esquire, of {designating the official function of the party convicting, as the case may be) for that he the said C. D. did {state succinctly the offence) and I {or we) adjudge the said C. D. for his said ofience, to forfeit and pay to {designate the prosecutor) the sum of , and also the further sum of for costs, in this behalf. Given under my {or our) hand and seal, the day and year first above mentioned. {Signature and Seal.) (F.) FORM OF WARRANT OF DISTRESS. Province of Canada, ) G. A., Esquire, of (designating the District (or as case may be) > official function of the party issuing the war- of . ) rant.) To any bailiff, constable or other officer of the Peace in and for the said district {or as case may be) : Whereas, C. D., of , {designate the d^endant), hath been convicted before of having {state the offence,) and for such offence adjudged to 528 THE magistrate's MANUAL. pay A. B. [dedgnaU the pronecntor) tho sum of , ond also the further sum of for costs In that behalf:* These are therefore to command you, and each of you, to distrain the goods and chattels of the said 0. D., wheresoerer thoy may be found within the said district (or eu ease may 60), and thereon to levy the said penalty and costs, making together the sum of ; and if, within the space of four days next alter such distress made, the said last mentioned sum of , together with the reasonable charges of taking and keeping the said distress, are not paid, that then you do soil tho said goods and chattels so by you distrained as aforesaid, and out of the money arising from such sale that you do pay the said sum of unto tho said A. B., refunding to the said C. D. the overplus, the reasonable charges of taking, keeping and sell< ing, the said distress being first deducted ; and you are to certify to me {or us) with the return of this warrant what you shall have done in the execu- tion thereof. Herein foil not. Given under my (or our) hand and seal, this day of in tho year of our Lord one thousand eight hundred and , at in the dis- trict {or aa case may he) aforesaid. {Signature and Seal.) (G. 1.) FORM OP "WARRANT OF COMMITMENT UNDER SECS. 80 ob 81. Province of Canada, ") To all or any of the bailiffs, constables and District (or as case may be) > other officers of the peace, In tho district {or of . ) as case may be) of and to the keeper of the gaol of the same district {or as case may be. ) Whereas, &c., {as in the foregoing form, to the marT^) ; and whereas {state circumstances under tohich^ in terms of section thirty or thirty-one, as case may be, the toarrant is issued) ; these are therefore to command you the said bailiffs, constables or officers of the peace, or any one of you, to take the said G. D., and him safely convey to the gaol of the said district {or M case may be), and there deliver him to the said keeper thereof, together with this warrant ; and I {or we) do hereby command you the said keeper of the said gaol to receive the said C. D. Into your custody in the said gaol, and to imprison him for the space of from the day of his arrival as a prisoner thereat, unless the said last mentioned sum of , and all the costs of the commitment and conveying of the said C. D. to the said gaol, amounting to the further sum of , are sooner paid unto you the said keeper ; and for so doing, this shall be your sufficient warrant. Given, &c., {. or without any weapon or instrument, any grievous bodii;j- iujim, or unlawfully and maliciously cuts, stabs, f j wound* any other person, shall be guilty of a misderaciJ *or, and shall be im- prisoned, with hard labour, in anj gaol or prison for any term less than two years, or in the penitentiary for any term not less than two nor more than five years." (Con. Stat. 0. c. 91, s. 8.)* Attempts to Stab, &c. — " Any person who unlawfully and maliciously shoots at any person, or by drawing a trigger, or * Thoof h requested so to do, the Juatioe should not a«mraarily dispose of any ease in which it eomee o«t ia evideaee tkat a person has beea ent^ stabbed, or wounded. 34 630 THE MAGISTRATE S MANUAL. in any other manner attempts to discharge any kind of loaded arms at any person, or stabs, cuts, or wounds any person, with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and shall be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of con- finement for any term less than two years."* (/5. s. 7.) SUICIDE. ' A suicide is one that deliberately puts an end to his own •existence, or commits any act the consequence of which is his own death. It is considered in law a felony committed by a person against himself; so that an attempt to commit suicide is a misdemeanor, punishable with fine or imprisonment. But in order to constitute a person felo de se, or self-felon, it is essential that he be at years of discretion and in his senses at the time he committed the ofience. (See article "Misde- meanor," ante, p. 385.) SUMMMONS. For summons in indictable offences, see Con Stat. C. c. 102, tB. 2 (ante, page 27.) For summons in summary convictions, see Con. Stat. C. ♦c. 103, s. 1 (ante, page 69.) * Owing to the carelessness of the persons who examine the gun after an attempt to shoot, it is frequently difficult to prove that the gun was loaded. If this cannot be proved, then the person should be sent for trial for the common assuult, unless he proves that the gun was not loaded. To establish a case of assault, it is not necessary to prove that the trigger was drawn. The presenting the gun or pistol so near as to have been dangerous, if it, being loaded, had gone off, is sufficient to establish a case for common assault. THE magistrate's MANUAL. 531 )aded , with re, or harm lawful Ity of or the m two 3f con- ) lis own eh is his ed by a t suicide It. But on, it is enses at " Misde- J. c. 102, Stat. C. SUPPORT OF ILLEGITIMATE CHILDREN. Father liable for Necessaries. — "Any person who fur- nishes food, clothing, lodging or other necessaries to any child born not in lawful wedlock, may maintain an action for the value thereof against the father of such child, if the child was a minor at the time the necessaries were furnisiied, and was not residing with his or her reputed father and maintained by him as a member of his family." (Con. Stats. U, C. c. 77, s 4.) Proof required. — " Where the person suing for the value of such necessaries is the mother of such child, or a person to whom the mother has become accountable for such necessaries, the fact of the defendant being the father of such child shall be proved by other testimony than that of the mother." {Ih. s. 5.) Affidavit to be Filed. — " No action shall be sustained under the two last sections, unless it be shown upon the trial thereof that while the mother of the child was pregnant, or within six months after the birth of her child, she did voluntarily make an affidavit in writing before some one of Her Majesty's Jus- tices of the Peace for the county or city in which she resides, declaring that the person who may be afterwards charged in such action is really the father of such child, nor unless she deposited such affidavit within the time aforesaid in the office of the clerk of the peace of the county, or clerk of the city, as the case may be." {Ih. s. 6.) ^'Such affidavit shall not be evidence of the fact of the defendant being che father of such child." (Ih. s. 7.) " This act shall not take away or abridge any right of action or remedy, which, without the act, might have been maintained against the father for an illegitimate child." {Ih. 8. 8.) ■eisi un after an loaded. K the common Ish a case of ^ presenting fd, had gone SURETIES OF THE PEACE AND GOOD BEHAVIOUR. Very great discretion is given to the Justice in this matter. He should not require a person to give surety for his good behaviour or to keep the peace, unless upon sworn information that the said person has either made threats of violence touching •wr- 532 THE MAGISTBATb's MANUAL. some person or some one of his or her family, or the firing of his or her dwelling ; or unless it appears in evidence that such person has already committed a breach of the peace. Every person fined for a breach of the peace should be required to give security for his good behaviour, and in default of his so doing should be sent to prison. The recognizance may be for a time certain, and may be for several years if the Justice deems it advisable, though it is not usual to require security for more than one year ; or it may be for the appearance, at the next sessions, of the party so bound. The recognizance, when taken, should be forwarded to the clerk of the peace. > The law does not require the publication of the names of the persons under sentence to keep the peace, but it might be well for the court of Quarter Sessions to consider as to whether good would not result jfrom the publication quarterly of persons so bound, INFORMATION BEFORE JUSTICE TO COMPEL FINDING OF SURETIES FOR THE PEACE OR BEHAVIOUR. Canada : Count of f Be it Toinembered, that on the —-^ day of——, A.D. 18—, A. B., of — , in the said count of — — [gentleman], came personally before me — — •, one of her Majesty's to wit ) Justices of the Peace in and for the said count , at •— , of , in the count aforesaid, and on his oath informed me that C. D., of the of , in the count of [Icibottrer], did on the — — day of—, A.D. 18—, most violeaiUy and maliciously declare and threaten, &c. ; and did also on [here ttate the defendants threats and aeta]; and that from the above premises, he, this complainant, is afraid that the said 0. D. will do him some grievous bodily injury ; and therefore prays that the said 0. D. may be required to find sufficient sureties to keep the peace [or, to be of good behaviour, a$ may ie required] towards him, this complainant And this complainant also says that he doth not make this complaint against nor require such sureties Irom the said G. D. from any hatred, malice, or ill-will, but merely for the preservation of his life and person from injury. A. B. Sworn before me, at ^he this — day of- » of ,) , A.D. 18-v } J. P. ) .;e.> then t| THE magistrate's MANUAL. 533 iring tliat d be jfault )efor is not ay be lound. bo the mes of gbtbe hether persons RETIES D. 18-, leman\, Iftjesty's at- — ♦ nfonned rer\y did declare threats is afraid berefore to keep urds hiiD, not make D. from >f his life A. B. WARRANT THEREON. To E. P., constable of ^ in the said count , and ali others whom this may concern : Whweas A. B., of , in the said count [gentleman\ hath this day- made information on oath before me - — , one of her Majesty^s Justices of the Peace in and for the s?.id count , at ^ that 0. D., of [labourer^ did on the day of ^ A.D. 18— [here set forth the complaint in the past tensey describing the complainant hy his name.] And therefore the said A. B. hath prayed that the said C. D. may be required to find suffi- cient sureties to keep the peace [or, to be of good behaviour] towards him the said A. B. I do therefore hereby require and command you to appre- hend and bring the said 0. D. before me or some other of her Majesty's Justices of the Peace for the said count , on the day of ^ A.D. 18— , at , to answer the said complaint, and to find sufficient sureties to keep the peace [or, be of good behaviour] towards her Majesty and all her liege people, and especially towards the said A. B., for such term as shall be then enjoined him, and to be ftirther dealt with according to law. Given under my hand and seaj, the day of , A.D. 18- J. P. [L. 8.] RECOGNIZANCE FOR THE PEACE OR GOOD BEHAVIOUR. Canada: Count of Be it remembered, that on the A. 0., of the of — - day of — ^, A.D. 18—, >, in the count aforesaid [yeoman], A. S., of the same place [yeoman], and B. S., to wit J of the same place [yeoman], came before me H. C, one of the Justices of our said Lady the Queen assigned to keep the peace in and for the said count , and acknowledged themselves to owe to our said Lady the Queen, to wit, the said A. O. the sum of ^ and the said A. S. the sum of , and the said B. S. the sum of , of good and lawful money of Canada, to be respectively made and levied of their several goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors, if he, the said A. 0., shall fail in performing the condition underwritten : [^ the party he hound merely to keep the peace or he of good behaviour for a specified time, the condition will he thus :] The condition of this recognizance is such, that if the above bounden A. O. shall keep the peace [or, be of good behaviour] towards the Queen and all her liege people, and especially towards A. J. of the said county [gentleman]^ for the term of now next ensuing, then the said recognizance shall be void, or else remain in full force. Hf the party he hound to appear at the sessions, the condition of this reeognimnce will he thus :] The condition ot this recognizance is such, that if the said C. D. shall personally appear at the next Quarter Sessions of the Peace to be holden for the said — — count , to do and receive what shall be then and there required of him bv the court, and in the meantime shall keep the peace [or, be of good behaviour] towards her Majesty and all her liege people, and especially towards the said A. B., then the said recognizance shall be void or else remain in force. 1^ '4 534 THE MAOISTBATE'B MANUAL. DISCHARGE OF ONE COMMITTED FOR WANT OF SURETIES. Canada: 1 To E. S., the keeper of her Majesty's gaol [or, house of Count of ( correction] for the said count , and others whom r this may concern : to wit. / You are hereby commanded to discharge out of your custody the body of A. D., of ^ in the said county [labourer], he having this day entered into a recognizance before me, J. P., one of her Majesty's Justices of the Peace in and for the said county, in the sum of , with two sureties in each, to keep the peace [or, be of good behaviour] towards her Majesty and all her liege people, and especially towards A. B., of ■ " [gentleman], for the space of now next ensuing. Given under my hand and seal, this day of ^ 18 — . THREATS TO ACCUSE OF CRIME. False Accusations, to Extort. — " Any person who accuses or threatens to accuse aiiy person of the abominable crime of buggery, committed either with mankind or with beast, or of any assault with intent to commit the said abominable crime, or of any attempt or endeavour to commit the said abominable crime, or of malting or offering any solicitation, persuasion, promise, or threat to any person whereby to move or induce such person to commit or permit the said abominable crime, ^ with a view or intent in any of the cases aforesaid to extort or gain from such person, and by intimidating such person by such accusation or threat extorts or gains from such person any property, shall be guilty of felony, arid shall be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Con. Stat. C. c. 92, s. 6.) . - Demanding Money or Goods by Threatening Letters. — " Any person who knowingly sends or delivers any letter or writing, demanding of any person with menaces, and without any reasonable or probable cause, any chattel, money, or valuable security ; and any person who accuses or threatens to accuse, or knowingly sends or delivers any letter or writing accusing or threatening to accuse any person of any crime punishable by law with death or transportation ; or of any THE MAOISTBATE's MANUAL. 535 se of rhom your r], he )f her am of f good ecially 7 next assault with intent to commit any rape, or of any attempt or endeavour to commit rape, with a view or intent to extort or gain from such person any chattel, money, or valuable se- curity, shall respectively be guilty of felony, and shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of con- finement for any term less than two years." {Ih. s. 7.) See " Sureties of the Peace," ante^ p. 631. accuses ime of , or of crime, ainable uasion, induce crime, ^ Ktort or rson by person risoned for any ly other an two CEBS. — letter or 1 without )ney, or }atens to writing ly crime of any TIMBER — OFFENCES RELATING TO. Cutting, Destroying or Stealing Trees, &c. — " If any person steals or cuts, breaks, roots up, or otherwise destroys or damages, with intent to steal or unlawfully carry away, or procures any person or persons to steal, or t(5 cut, break, root up, or otherwise destroy or damage, with intent to steal or unlawfully carry away, any tree or sapling, standing, growing, or being on the land of any other, the injury done to such other person thereby being in amount more than ten dollars ; every such offender being convicted thereof shall be guilty of a misdemeanor, and shall be punished at the discretion of the court by fine not exceeding the sum of one hundred dollars, or by imprisonment in any common gaol for a term not exceeding six months, or by both ; and the said fine, or any portion thereof, the court may in its discretion aWard to the person injured."* (23 Vic. c. 37, s. 1.) Purchasing Trees, &c., unlawfully obtained. — " If any person receives or purchases any tree or sapling, trees or sap- lings, or any timber made therefrom, exceeding in value the sum of ten dollars, knowing the same to have been stolen, or unlawfully cut or carried away, such receiver or purchaser shall be guilty of a misdemeanor, and may be indicted and con- victed thereof, or whether the principal offender has or has not * Under this section it is only necessary that the damage shall be to the amount of ten dollars. That damage may be partly caused by the injury done in removing the timber cut. 636 THE UAOISTRATE 8 MANUAL. been convicted, or be or be not amenable to justice, and shall be liable to the same punishment as the principal offender."* (/J. 8. 2.) Not to affect any Criminal Pboceedinos. — " Nothing in this act contained shall prevent the adoption of any other criminal proceedings, which before the passing of this act might have been had." {Ih. s. 4.) Seizure op Timber fob Tolls. — " If the true owner of any timber which has passed through any of the works of a company cannot be ascertained, or if there be reasonable grounds to apprehend that the tolls thereon have not been paid by the owner or reputed owner or person in charge, any mayor, reeve, or Justice of the Peace, having jurisdiction in the locality through or adjoining which such navigation extends, or where the timber may be found, if within twenty miles of any such works, shall, upon the oath of any director or servant of the company that the just tolls have not been paid, issue a warrant for the seizure of such timber, or so much thereof as will be sufficient to satisfy the tolls, which warrant shall be directed to any constable, or any person sworn in as a special constable for that purpose, at the discretion of the magistrate, and shall authorize the person to whom it is directed, if the tolls are not paid within fourteen days from the date thereof, to sell the said timber, and out of the proceeds to pay to the company the just tolls,t together with the costs of the warrant and sale, rendering the surplus on demand to the owner." (Con. Stat. C. c. 68, s. QQ,) * There are many cases where it will be difficult to convict the receirer unless the thief is used as a witness for the crown. The Justice should not examine the thief as a witness, but should send them both for trial. f The jnst tolls are as follows :— Red and White Pine, per plece» Id. Oak, Elm, and other hardwood, per piece, l^d. Spars, per piece 8d. Masts, per piece, 6d. Saw Logs, per piece, l-12d. ( < Sawed lumber per M. board meMure,. Id. Staves per M 1 5d. Firewood, shingles^ bolts and other timber, per cord, 2d. » ■ - THE MAOISTBATE's HANUAL. 687 Malioiovs injuries to Timber, Slides, &o. — " If any per- son wilfully and maliciously bums, breaks down, injures, cuts, removes or destroys, in whole or in part, any dam, pier, slide, boom or other work of any such company, or any chain or other fastening attached thereto, or wilfully and maliciously impedes or blocks up any channel or passage intended for the transmission of timber, he shall be guilty of a misdemeanor, and on conviction thereof shall be punished by fine and im- prisonment in the common gaol for any term not exceeding one year, at the discretion of the court before whom the offender is convicted." (75. s. 67.) Impeding the operation op a Company. — "If any person resists or impedes any of the servants of any such company in the transmission of any timber through any such works, or in carrying out any regulations of the company for the greater safety and regularity of such transmission, or resists any such servants who may require access to any raft or other timber to ascertain the just tolls thereon, or in any way molests such company or its servants in the exercise of any rights secured to them by this act, such person shall upon conviction thereof in a summary way, before a Justice of the Peace having juris- diction in the locality in or adjoining which the offence has been committed, be sentenced to pay a fine of not more than ten dollars nor less than one dollar, together with all costs, to be paid within a time to be limited by the said Justice, and in default to be levied as next hereafter provided." (Ih. s. 68.) Procedure. — " In any proceeding or prosecution before any Justice of the Peace under this act the Justice may summon the party complained against to appear at a time and place to be named in the summons, and jf he does not appear accord- ingly, then upon proof of the due service of the summons upon such party, either personally or by leaving a copy thereof at his usual place of abode, or with any adult person belonging to the raft to which such party is attached, the Justice may either proceed to hear and determine the ^ ^.jsjHirte, or issue his warrant for apprehending and bringi ich party before A^imself or some other Justice of the Peace, the Justice may nf'.l 538 THE MAOISTBATB'S MANUAL. without previous summons issue such warrant, and the Justice before Whom the parties appear or are brought shall proceed to hear and determine the case." {Ih. s. 69.) How Fines, &o., beoovebable. — " The fines and forfeitures authorized to be summarily imposed by this act may be recov- ered upon information and complaint before any Justice of the Peace of the county within which the same have been incurred, and shall be levied and collected by distress and sale of the offender's goods and chattels, under the authority of a warrant of distress for that purpose to be issued by the Justice before whom the conviction has been had." {Ih. s. 71.) Impbisonment. — " In case there are no goods or chattels to satisfy such warrant, the offender shall be committed to the common gaol of the district or county for any period not exceed- ing one month ; but this section shall not prevent the issuing of a warrant of commitment in the first instance, upon a con- viction for any offence mentioned in the sixty-seventh section of this act." (75. s. 71.) Fines, &c., to whom to be paid. — "All fines and forfeitures collected under the authority of this act shall be paid to the treasurer of the company owning the work in respect of which such fines and forfeitures have been imposed, for the use of such companies respectively." {Ih. s. 72.) Officebs op Company may be Witnesses. — " In any action or suit brought by or against any such company, upon any con- tract, or for any matter or thing whatsoever, any stockholder or any officer or servant of the company shall be competent as a witness, and his testimony shall not be deemed inadmissible on the ground of interest or of his being such servant or officer." {/&. s. 73.) Limitation op Action. — " If any suit be brought against any person for any matter or thing done in pursuance of this act, such suit shall be brought within six months next after the fact committed, and not afterwards, and the defendant therein may plead the general issue only, and give this act and the special matter in evidence on the trial." {Ih. s. 74.) THE MAGISTEATE'b MANUAL. 539 TBE A.SON. High Treason defined. — "If any person compasses or imagines the death of our Lady the Queen, or levies war against her Majesty in Upper Canada, or be adherent to the Queen's enemies in Upper Canada, giving to them aid and comfort therein or elsewhere, and be thereof proveably at- tainted of open deed by people of his condition, such person so attainted shall be deemed guilty of treason, and shall suffer death." (Con. Stat. U. C. c. 97, s. 1.) Officer or Soldier corresponding with the Enemy. — " If any officer or soldier in her Majesty's army holds correspon- dence with any rebel or enemy of her Majesty, or gives them advice or intelligence either by letters, messages, signs, or tokens, or in any manner of way whatsoever, or treats with such rebels or enemies, or enters into any condition with them without her Majesty's license, or the license of the general, lieutenant-general, or chief commander, every such person so offending is guilty of high treason, and shall suffer death." (Ih. s. 2.) Sentence in High Treason. — " In all cases of high treason, the sentence or judgment to be pronounced against any person convicted and adjudged guilty thereof shall be, that such person shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until such person be dead, and that afterwards the body of such person shaU be dissected and anatomized." {Ih. s. 3.) Proceedings against Persons indioted for High Treason. — " In case of an indictment being found by a grand jury at any court of competent jurisdiction in Upper Canada against an^ person for high treason, misprision of treason, or treason- able practices, and in case the sheriff makes return to any warrant or capias issued thereupon that such person is not to be found in his county, the Governor, by and \^ith the advice and consent of the executive council, may, immediately upon the making of such return, issue a proclamation, to be pub- lished not less than six weeks in the Canada Gazette^ calling m 540 THB MAQISTRATE'S MANUAL. upon and requiring the person against whom such indictment has been found to surrender himself to the custody of the sheriff of the county within which the court was held before which such indictment was found, by a day to be named in the said proclamation, such day not being less than three months from the first publication of such proclamation in the Gazette y and if such person does not by the day in such pro- clamation named surrender himself to the custody aforesaid, and submit to justice, then and in such case, after the day in such proclamation named, he shall stand and be adjudged attainted of the crime expressed and set forth in such indict- ment, and shall suffer and forfeit as a person attainted of such crime by the laws of the land ought to suffer and forfeit." {Ih. c. 107, B. 10.) Relating to Revenue. — " Nothing contained in the criminal acts of the province of Canada shall affect or alter any act so far as it relates to the crime of high treason or to any branch of the public revenue.*' (Con. Stat. C. c. 90, s. 1.) Petit Treason. — " Every offence which, on or before the Ist of January, 1842, would have amounted to petit treason, shall be deemed to be murder only, and no greater offence ; and all persons guilty in respect thereof, whether as principals or accessories, shall be dealt with, indicted, tried, and punished as principals and accessories in murder." {Ih. c. 91, s. 1.) TELEGRAPH— OFFENCES RELATING TO. "What Mbssaoes entttled to prepebenoe. — "Any message in relation to the administration of justice, arrest of criminals, the discovery or prevention of crime, and the government messages or despatches, shall always be transmitted in prefer- ence to any other message or despatch, if required by persons connected with the administration of justice, or any person thereunto authorized by the provincial secretary." (Con. Stat. 0. c. 67, 8. 16.) Operator divitlging Secrets. — " Any operator of a tele- graphic line, or any person employed by a telegraphic com- THE MAGISTRATE 8 UANVAL. 641 tele- com- pany, divulging the contents of a private despatch, shall be guilty of a misdemeanor, and on conviction sliall be liable to a fine not exceeding one hundred dollars, or to imprisonment for a period not exceeding three months, or both, in the discretion of the court before which the conviction is had." {Ih. s. 16.) Malicious Injttbies to Telegraph "W^orks. — "Any person who wilfully and maliciously cuts, breaks, molests, injures, or destroys any instrument, cap, wire, post, line, pier, or abut- ment, or the materials or property belonging thereto, or any other erection used for or by any line of electro-magnetic tele- graph in operation in this province, under any act in force herein, or who wilfully or maliciously in any way obstructs, disturbs, or impedes the action, operation, or working of any euch wire of telegraph, shall on conviction thereof be deemed guilty of a misdemeanor, and be punished by a fine not ex- ceeding forty dollars, or be imprisoned for a term not exceeding one month, or both, at the discretion of the court before which the conviction is had." {Ih. s. 21.) Jurisdiction of Justices. — " The jurisdiction over all ofi^ences against this act shall be in any Justice of the Peace in uny parish, village, city, town, or county where the offence has been committed, or in which the offender may be found, and the proceedings therein shall be summary." {Ih. s. 22.) How Penalties enforced. — " The fine imposed may, if not forthwith paid, be levied, with all costs of the prosecution, by warrant of distress against and by sale of the goods and chattels of the offender ; or such offender may, in the discre- tion of the magistrate, whether imprisonment be or be not part of the sentence, be impri8(Mied for a period not exceeding thirty days, in addition to and after the expiration of any other imprisonment making part of his sentence, unless such fine and all expenses incurred in the prosecution be sooner paid ; and all such fines, when collected, shall belong to the party aggrieved by and complaining'of the oft'ence, and be paid over to such party," (/J, s. 23.) .' 542 TUB MAOIBTRATK's MANUAL. TRANSPORT ATI ON. Return from. — If any transported or banished person return to the province before the expiration of his term of transporta- tion, he shall be guilty of felony. (See Con. Stats. C. c. DO, B. 34.) "Where to be tried. — The offender returning from transpor- tation may be tried in the city or place where found, or county or place from which formerly banished. (See Con. Stats. C. ch. 00, s. 10.) Evidence. — A certificate from the officer having the custody of the records where any sentence or order of transportation was made, to be received aa evidence of conviction and sentence. (See ih, 8. 72.) Offenders formerly punishable by transportation now pun- ishable by imprisonment in the provincial penitentiary. (See ib. 8. 107.) VEXATIOUS ACTIONS. Against Justices of the Peace. — "Every action brought against any Justice of the Peace for any act done by him in the execution of his duty as such Justice, with respect to any matter within his jurisdiction as such Justice, or against any other officer or person fulfilling any public duty for anything by him done in the performance of such public duty, whether any of such duties arise out of the common law or be imposed by act of parliament, either imperial or provincial, shall be an action on the case as for a tort, and in the declaration it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause ; and if at the trial of any such action upon the general issue pleaded the plaintiff fails to produce such allegation he shall be nonsuited, or a verdict shall be given to the defendant." (Con. Stat. U. 0, c. 126, 8. 1.) "When Justice has exceedes> his Jurisdiction. — " For any act done by a Justice of the Peace in a matter of whicl> by law he has not jurisdiction, or in which he has exceeded his TIIE MA0I8TRAT£'s MANUAL. 643 jurisdiction, or for any act done under any conviction < c order made or warrant iHsued by such Justice in any sucli ^natter, any person injured thereby may maintain an action against such Justice in the same form and in the same case as ho miglit have done before tlio passing of this act, without making any allegation in his declaration that the act complained of was done nuiliciously and without reasonable and probable cause." {lb. s. 2.) An Act done under Conviction or Order. — "No such action shall be brought for anything done under such convic- tion or order until the conviction or order has been quashed, either upon appeal or upon application to one of the superior courts of common law for Upper Canada ; nor shall any such action be brought for anything done under any warrant issued by such Justice to procure the appearance of the party, and which has been followed by a conviction or order in the same matter, until the conviction or order has been quashed as aforesaid." (lb. s. 3.) An Act done under Warrant. — " If such last-mentioned warrant has not been followed by a conviction or order, or in case it be a warrant upon an information for an alleged indict- able offence, if a summons was issued previously to such war- rant, and such summons was served upon such person at his last or most usual place of abode, and he did not appear according to the exigency of such summons, in such case no action shall be maintained against the Justice for anything done under such warrant." (lb. s. 4.) If one Justice convict, &o., and another grant a War- rant. — " Where a conviction or order has been made by one or more Justice or Justices of the Peace, and a warrant of distress or commitment has been granted thereon by some other Justice of the Peace bondjide and without collusion, no action shall be brought against the Justice who granted such warrant by reason of any defect in the conviction or order, or for any want of jurisdiction in the Justice or Justices who made the same, but the action (if any be brought) shall be 644 THE MAOIBTRATE'S MANUAL. against the Justice or Justices who made the conviction or order." {Ih. s. 6.) If a Justice refuse to do any act. — " In all cases where a Justice or Justices of the Peace refuse to do any act relating to the duties of his or their office as such Justice or Justices, the party requiring such act to be done may, upon an affidavit of the facts, apply to either of the superior courts of common law in Upper Canada, or to the judge of the county court of the county or united counties in which such Justice or Justices reside, for a rule calling upon such Justice or Justices, and also the party to be affected by such act, to diow cause why such act should not be done ; and if, after due service of such rule, good cause be not shown against it, the said court may make the same absolute, with or without or upon payment of costs, as may seem meet ; and the Justice or Justices, upon being served with such rule absolute, shall obey the same and shall do the act required ; and no action or proceeding shall be commenced or prosecuted against such Justices or Justices for having obeyed the rule and done the act required as afore- said." {Ih. s. 6.) After Conviction, &o., affirmed. — " In case a Justice of the Peace has granted a warrant of distress or a warrant of commitment upon any conviction or order which, either before or after the granting of the warrant, has been confirmed upon appeal, no action shall be brought against such Justice bj reason of any defect in such conviction or order for anything done under the warrant." {Ih. s. 7.) Action brought contrary to this Act. — " In case any action be brought where by this act it is enacted that no such action shall be brought under the particular circumstances, a judge of the court in which the action is pending shall, upon application of the defendant and upon an affidavit of facts, set aside the proceedings in such action, with or without costs, as to him seems meet" {Ih. s. 8.) LiMrrATioN of Actions. — " No action shall be brought against any Justice of the Peace for anything done by him in the THE MAOISTBATE's MANUAL. r^5 I'i: k execution of his office, unless the same be commenced within six months next after the act complained of was committed." {Ih. 8. 9.) . „ Notice of Action. — " No such action shall be commenced against any Justice of the Peace u itil one month at least after a notice in writing of the intended action has been delivered to him or left for him at his usual place of abode by the party intending to coro.mence the action, or by his attorney or agent ; in which notice the cause of action and the court in which the same is intended to be brought shall be clearly and explicitly stated ; and upon the back thereof shall be endorsed the name and place of abode of the party intending to sue, and also the name and place of abode or of business of his attorney or agent, if the notice be served by such attorney or agent." {Ih. s. 10.) AcnoN not to bb brought in the County Court or Division Court, if the Justice objects. — " No action shall be brought in any county or division court against a Justice of the Peace for anything done by him in the execution of his office, if the Justice objects thereto ; and if within six days after being served with notice of any such action such Justice or his attorney or agent gives a .vritten notice to the plaintiff in the intended action that he objects to being sued in such county or division court for such cause of action, no Tiroceed- ings shall afterwards be had in such county or division court in any such action, but it shall not be necessary to give another notice of action in order to sue such parties in any other court." (lb. 8. 12.) NoN-surr. — " If at the trial of any such action, the plaintiff does not prove, 1. That the action was brought within the time hereinbefore limited in that behalf, and 2. That such notice as aforesaid was given one month before the action was com- menced, and 3. The cause of action stated in such notice, and 4. Does prove that the cause of action arose in tli3 county or place laid as venue in the margin of the declaration, and 6. When the plaintiff' sues in a county or division court, that the cause of action arose within the county or united counties for 35 rill Ev t I 'A J: In S I l 546 THE magistrate's MANUAL. which such court is holden, 6. Then and in any such case such plaiutift' shall be non-suit, or the jury shall give a verdict for the defendants." {Ih. s. 16.) Act to apply to evert Officer. — " So far as applicable, the whole of this act shall apply for the protection of every officer and person mentioned in the first section hereof, for anything don« in the execution of his office, as therein expressed." {Ih. B. 20.) , "Vexatious Iijdictments for Misdemeanors. — "After the first day of September, one thousand eight hundred and sixty- one, no bill of indictment for any of the offences following, viz : perjury, subordination of perjury, conspiracy, obtaining mens or other property by false pretences, keeping a gam- bling-house, keeping a disorderly house, and any indecent asGJj.ult, shall be presented to or found by any grand jury, unless the prosecutor or other person presenting such indict- ment had been bound by recognizance to prosecute or give evidence against the person accused of such offence, or unless the person accused has been committed to or detained in custody, or has been bound by recognizance to appear to answer to an indictment to be preferred against him for such -offence, or unless such indictmf^nt for such offence, if charged to have been committed in Upper Canada, be preferred by the > > -^ i VESSELS — OFFENCES RELATING TO. " Any person who by force prevents or impedes any person endeavouring to save his life from any ship or vessel in distress, or wrecked, stranded, or cast on shore (whether he be on board of or has quitted the same), shall be guilty of felony, and shall H ' '1 THB MAQISTBATE^S MANUAL. 661 be imprisoned in the penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Con. Stat. C. c. 91, s. 31.) " Any person who assaults and strikes or wounds any magis- trate, officer or other person, lawfully authorized, on account of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods or effects wrecked, stranded or cast on shore, or lying underwater, shall be guilty of felony, and be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (lb, s. 32.) .';,t m 'i WEAPONS —CARRYING. Concealed oe otherwise. — " Any person who carries about his person any bowie-knife, dagger or dirk, or any weapons called or known as iron knuckles, skull-crackers or slung-shot, or other offensive weapons of a like character, or who secretly carries about the person any instrument loaded at the end, or who sells or exposes for sale, publicly or privately, any such weapon, shall be subject, on conviction, to a fine of not less than ten nor more than forty dollars, and in default of payment thereof to imprisonment for a term not exceeding thirty days, at the discretion of the court wherein the offence is tried ; but nothing in this section contained shall apply to her Majesty's army or navy, or militia, or volunteer force, nor to any High- land or national society carrying arms as part of their national costume." (Con. Stat. C. c. 91. s. 9.) " Any person charged with having committed any offence against the provisions of the last preceding section of this act, may be tried and dealt with in pursuance of the Consolidated Statute of Canada respecting the prompt and summary admin- istration of criminal justice in certain cases." {Ih. s. 10.) " It shall be tii« duty of the court or magistrate before whom any person is cpnvicted under the two last preceding sections 652 THE magistrate's MANUAL. of this act, to impound the weapon for carrying wLich such person is convicted, and to cause the same to be destroyed." (7^.8.11.) " All prosecutions under the preceding ninth and tenth sec- tions of this act shall be commenced within one month from the offence charged ; and from any conviction or decision under the said ninth and tenth sections an appeal shall lie to the Court of General Quarter Sessions of the Peace for the county in Upper Canada, or district in Lower Canada, wherein the same takes place, subject in Upper Canada to the provisions of the Consolidated Statute for Upper Canada respecting appeals in cases of summary conviction, and in Lower Canada to the provisions of law regulating appeals to the Quarter Sessions generally."* {Ih. s. 12.) WEEDS. Peeventino growth of. — " The council of every township, city, town, or incorporated village may pass by-laws for pre- venting the growth of weeds detrimental to good husbandry." (Con. Stat. U. C. c. 54, s. 266, sub. sec. 10.) WEIGHTS AND ME ASURES— USING UNLAWFUL. " The following rates shall be the standard weight, and shall in all cases be allowed to be equal to the Winchester bushel, namely — * When a person is charged before an ordinary Justice of the Peace with an offence under the above statute, it must be borne in mind that he can only enter- tain the charge ; and if he thinks there is sufficient evidence, it is his duty f t ^,h- with to remand the defendant for disposal before the recorder or police mag' ate of the nearest city. This is evident, as section ten of the act enacts that offences against the provisions of section nine may be tried and dealt with in pursuance of the Consolidated Statute of Canada respecting the prompt and summary administration of criminal justice in certain cases. Referring to Con. Stat. C. c. 105 (see ante, p. 453), summary power is only given in Upper Canada to recorders and police magistrates of cities. By section 18 of the latter act (see ante, p. 457) a magistrate may entertain a charge, but must send it for disposal to the recorder or police magistrate of the nearest city. The notice of appeal against a conviction under the above section must be given within three days, and must be served upon the complainant. THE MAOISTBAmS MANUAL. 558 ll BUcll •oyed." ith sec- ;h from a under to the county ein the isions of appeals a to the Sessions ownship, for pre- andry." FUL. rht, and inchester Lce with an only enter- duty f'^'^h- mag' ate kat ofteoces pursuance I summary Stat. C. c. J recorders Inte, p. 467) \e recorder in must be Wheat 60 lbs. Oats 341bs. Indian corn 56 lbs. Beans 60 lbs. Rye 56 lbs. Clover Seed 60 lbs. Pease 60 lbs. Timothy Seed 48 lbs. Barley 48 lbs. Buckwheat 48 lbs." (Con. Stat. U. C. c. 58, s. 14.) ,, Penalty, if Weight is not Stamped within a certain time. — " Every storekeeper, shopkeeper, miller, distiller, butcher, baker, huckster, or other trading person, and every wharfinger or forwarder in any county or place in Upper Canada, who, two months after the appointment of an inspector therefor, uses any weight or measure which has not been duly stamped according to law, or which may be found light or otherwise unjust, shall on conviction forfeit a sum of not more than twenty nor less than eight dollars ; and every such light or unjust weight or measure shall, on being discovered by any inspector, be seized, and on conviction of the person using the same shall be forfeited and broken up by the inspector." {lb. s. 16.) Inspector may enter Shops. — " Every inspector may, at all reasonable times, enter any shop, store, warehouse, stall, yard, or place whatsoever, within his county or division, where any commodity is bought, sold, or exchanged, weighed, exposed, or kept for sale, or weighed for conveyance or carriage, and there examine all weights, measures, or other weighing machines, and compare and try the same with standard weights and measures provided by law." (lb. s. 17.) Forfeiture op. — " If upon such examination it appears that the said weights or measures, or any or either of them, have not been stamped, or are light or otherwise unjust, the same shall be liable to be seized and forfeited ; and the person or persons in whose possession the same are found shall, on con- viction, forfeit a sum not exceeding eight dollars for the first and twenty dollars for every subsequent offence." (lb. s. 18.) False Steelyards. — " Any person who has in his possession a steelyard or other weighing machine which, on such exami- nation, is found incon-ect or otherwise unjust, or who, when ■i . •! I, i I I 554 THE MAOISTBATB's MAKUAL. thereto required, neglects or refuses to produce for such exami- nation all weights, measures, steelyards, or other weighing machines in his possession, or who otherwise obstructs or hinders such examination,, shall be liable to a like penalty." {Ih. s. 19.) When Penalty incurred. — " No penalty as aforesaid shall be incurred in any county, division, or locality, until two months at least after a standard of weights and measures has been received by the inspector l^ally appointed therefor." (/*. 6. 20.) ' . ' Penalties, how recoverable. — "All penalties under this act, together with all reasonable costs, shall be recoverable before any Justice of the Peace, on the oath of the inspector or of any other credible witness, and shall, if not forthwith paid, be levied by distress and sale of the goods and chattels of the offender, and in default of distress the offender shall be committed to the common gaol of the county wherein the conviction took place for a term not exceeding one month; and all such penalties when recovered shall belong to the crown for the public uses of the province, and shall be paid over to the inspector, and shall by him be accounted for in the same manner as other public moneys coming into his hands by virtue of his office." (7^. s. 21.) , , . Forging Stahps,^-" If any person makes, forges or counter- feits, or causes or procures to be made, forged or counterfeited, or knowingly acts or assists in the making, forging or counter- feiting any stamp or mark legally used for the stamping or parking of any weights or measures in any county or place in Upper Canada, he shall be guilty of a misdemeanor, and on being convicted thereof shall be liable, at the discretion of the court, to be fined or imprisoned in the common gaol of the county where the conviction takes place ; but such fine shall not exceed eighty dollars, and such imprisonment shall not exceed three months." (/J. s. 22.) , Counterfeit Stamp, — " If any person knowingly sells, alters, disposes of or exposes to sale any weight or measure with such at THK MAOISTBATe's MANUAL. 655 exami- jighing acta 01- (nalty." foresaid ntil two ares has lerefor." .,■•■•' ider this !Overable inspector forthwitli i chattels r shall he erein the month ; ig to the 11 he paid for in the hands hy forged or counterfeit stamp or mark thereon, he shall for every such offence forfeit, on conviction, a sum not exceeding forty dollars nor less than eight dollars, to be recovered under the provisions of the twenty-first section of this act ; and all weights and measures with such forged or counterfeit stamps or marks shall be forfeited and broken up by the inspector." {Ih. s. 23.) Penalty on Inspbctoe foe Stampino, &o. — " If any inspector stamps, brands or marks any weight or measure without having first duly compared and verified the same with and by the fitandard weights and measures provided by law for that pur- pose, or is guilty of a breach of any duty imposed upon him by this act, he ^all, on conviction, ibrfeit a sum not exceeding twenty dollars, to be recovered and applied as aforesaid." {Ih. 8. 24.) Appeals. — " Any conviction under this act may be appealed in the manner provided in the act respecting appeals in cases of summary c, 2. Attempts to remove such personal property eitlwr out of Upper Canada or from one county to another therein ; or, 3. Keeps concealed in any county of Upper Canada to avoid service of process ; and in case any creditor of such person, his servant, or agent, makes and produces an affidavit^ or affirmation to the purport of the form prescribed by any rule respecting the practice and proceedings of the division courts, a writ of attachment may be issued. (Con. Stat. U. C. c. 19, 8.199.) "When Justice may issue Attachments. — " The Judge, or a Justice of the Peace for the county, may take the affidavit in • AniDATIT or AIXACHMKNT. FaoviKCii OF Caxada, \ of the , in the , maketh oath and salth, (. that justly and truly indebted to him the said , TO WIT : ) in the sum of— of lawful money of Canada, for ^— . And this deponent further saith, that he hath eood reason to believe and verilv doiii believe, that the said . And this deponent further saith that this affidavit is not made, nor the process thereon to be issued from any vexatious or malicious motive whatever. Sworn before me the — — day of , one thousand eight hundred and — — . J. P. xi*^^^' ' fiSr Clerklof th4 IHvuwn CouH of tfu ]. 558 THE magistrate's MANUAL. the last preceding section mentioned, and upon the same being filed with such Judge or Justice, the Judge or Justice may issue a warrant under his hand and seal in the form (C.)* and such Judge or Justice shall forthwith transmit the affidavit to the clerk of the division court within whose division the same was made or taken to be filed, by him filed and kept among the papers in the cause." {Ih. s. 200.) ALIENS. An Alien, generally speaking, is one bom in a foreign coun- try out of the dominions or allegiance of the crown of England. An alien residing in Canada may become entitled to be natur- alized after residing three years in the province and taking the oath of allegiance, l^he following oaths of ^^ residence " and ^^ allegiance " are to be taken before a magistrate residing in the city, town, parish, village, or township in which said alien may reside. (Oon* Stat. C. c. 8, s. 2.) ; "OATH OP RESIDEircfi. - tr. . t " I, A. B., do sweaf (or, leing one of theper»on» allowed hjf^ Icm to affirm injudicial cotes, do affirm) that I have resided three years in this province, with intent to settle therein, without having been, during that time, a litated reJBident in any foreign country. So hdp me God.'* Every such alien, being a male, in order to become entitled to the benefit of the act, must take and subscribe the following •(0.) WARRANT OF ATTACHMBNT. Pbovixok of Canada, To Couniyof Bailiff of the • Divieion Court of the TO wrr : ) Yotf are hereby commanded to attach, seize, take, and safely keep all the personal estate and effects of , an absconding, removing, or Concealed debtor, of what nature or kind soever, liable to seizure under execu- tion for debt within the said — — , or a sufficient portion thereof to secure ^— for the sum of——, together with the costs of his suit thereupon, and to return this warriant with what you shall have taken thereupon to the clerk of the said division court of the aforesaid forthwith ; and herein fail not. Witness my hand and seal the •— — day of — ->, one thoosand eight hundred and— ■^. J. P. V .... - . X * I [at CUrk of JHvieion Court.^ THE magistrate's MANUAL. 559 3 being ce may J.)* and davit to he same aongthe ign conn- England, be natnr- aking the ,nce" and •esiding in said alien MO to aj^rrn lis province, that time, a le entitled following Cdons and dispensations from any person or persons whatever to the contrary. So help me Ood.'* Tlie Justice before whom the said oaths are taken is re- quired to give the alien a certificate of residence, setting forth that the alien has taken and subscribed the oaths, and that the Justice has reason to believe that the alien had been resident in Canada for a period of three years or upwards. The certificate may be in the following form : CERTIPTCATE OP RESIDENCE. Canada, \ 1, 0. D., of the township of — — , in the county of ^ County of ^ > in the province of Canada, Esquire, do hereby certify as to wrr : ) follows : 1st. That A. B. in .the (Within or annexed) oaUis named, took and sub- scribed the oath of residence aAdalso the oatii of all^iance hereto annexed respectively before me. 2nd. That the said A. B. has, as I hare reason to believe and do believe, been resident within tile province pf Canada fbr a period of three years or upwards; 8rd. That the said A. B. is a person of good character, and that there does not exist to my knowledge any reason why the said A. B. should not be granted M the rights and capacities of a natural-bom British subject . 4th. That I am a Justice of the Peace (mayor, alderman, or a$ the oaso may be,) in the county of ^ Dated this day of- 18—. J^ P. {or at ceue may be.) Court.] Certificate to be filed, &o. — The oaths and certificate should be forwarded to the office of the clerk of the peace or cleric of the recorder's court, within the jtirisdiction of which I i' '\ I' > ^■ i 660 THE MAOISTBATE^S MAinTAL. the alien resides, and by him openly read in court on tlie first day of the next general sitting of the court. If the facts stated in the certificate given by the Justice are not controverted, or some valid objection made to the naturali- zation of the alien, the court will on the last day of the sitting direct that the certificate of residence be filed of record in the said court, '^ and thereupon such alien shall be thereby admit- ted and confirmed in all the rights and privileges of British birth, to all intents whatever, as if he or she had been bom within this province." {Ih. s. 3.) Certificate op Naturalization. — " Every such person shall be then entitled to receive a certificate of naturalization under the seal of such court, and the signature of the clerk thereof, that he or she hath complied with the several requirements of this act, which certificate of naturalization may be in the following form, or to the like effect, that is to say : " CERTIFICATE OF NATURALIZATION. Province of Canada, \ In the Court of , Circuit (or, county (. Whereas A. B., of, &c. (deteribing Urn or her as or city) of , j formerly of »uch a place^ in tuck a foreign TO WIT : / eounPry^ and now qf such a place in this pro- vince^ and adding his or her addition), hath complied with the several requirements of the " Act respecting the Naturalization of Aliens," and the certificate thereof hath been read in open court, and thereupon, by order of the said court, duly filed of record in the same, pursuant to the said act : These are therefore to certifV to all whom it may concern, that under and by virtue of the said act, the sud A. R hath obtained all the rights and capacities of a natural-bom British subject within this province, to have, hold, possess, and enjoy the same within the limits thereof, upon, from, and after the — — day of , in the year of our Lord one thousand eight hundred and ; and this certificate thereof is hereby granted to the said A. B. according to the form of the said law. day of Given under my hand and the seal of the said court, this ™7 (the day of filing the certificate of residence)^ in the year of our Lord one thousand eight hundred and . (Signature,) C. D., Clerk of the Peace, (or. Cleric of the Beeordet's Court^ or Clerk of the Circuit Courts as the case may be). ^^ The Justice who administers the oaths and grants the cer- tificate can charge twenty-five cents therefor ; and for reading THE magistrate's MANUAL. 561 le first ice are aturali- I sitting i in the r admit- British en bom Bon shall on under c thereof, sments of >e in the and filing certificate of residence and preparing and issuing certificate of investigation, the clerk of the peace is entitled to receive twenty-five cents." {Ih. s. 8.) ii ^ or her f Quarter a full state- Iny cases the lew and com- le the crown Irae to which ^ne requiring Sessions, and to form a portion of the cxj^enses of the adminis- tration of criminal justice in Upper Canada."* {lb. s. 4.) Case of Illness i'rovioed fok. — " In cas6 of tlic illness or unavoidable absence of the county attorney, tlie judge of the county court of the county may appoint some barrister at law to act for such county attorney during such illness or absence, and notice of the appointment and of the cause thereof shall bo sent by such county attorney to the governor, who may at any time annul such appointment." {Ih. s. 8.) Justices and Coroners to deliver Papers to. — " In every case where a person is committed for trial, or bailed to answer to a criminal charge, the Justice of the Peace so committing or bailing shall deliver or cause to be delivered without delay to the county attorney for the county, the informations, deposi- tions, examinations, recognizances and papers connected with the charge; and the county attorney shall be deemed the * proper officer ' of the courts within the meaning of the Con- solidated Statute of Canada respecting the duties of Justices of the Peace out of sessions^ in relation to persons charged with indictable offences ) and in every case of inquisition found before coroners, the inquisition and every recognizance taken before them, with the written information (if any) and the depositions and statements (if any) of the accused, shall be forthwith delivered to the county attorney of the county in which such inquisition has been found ; and in every case in which an information has been laid or complaint made before a Justice of the Peace, whether proceedings have been taken therein or not, such Justice shall hand over to the county attorney all papers connected therewith, on being by him requested so to do." {lb. s. 9.) « 'I FOREIGN ENLISTMENT, The very large number of persons to be tried for this crime, and the fact that they could only be tried under the Imperial * In all cases in which the court orders the defendant to pay costs, the costs so to be paid should be taxed or fixed by the court at some certain sum befora sentence is pronounced, otherwise they cannot be ordered to be paid by defendant.. 500 THE MAGISTRATE 8 MANUAL. act before one of the superior conrts, induced the legislnturo at its last session to amend the law and make the following enactment : " If any person whatever in this province shall hire, retain, engage or procure, or sliall attempt or endeavor to hire, retain, engage or procure, any natural-bom subject of her Majesty, person or persons whatever, to enlist or to enter or engage to enlist, or to serve or to bo employed, in any warlike or military operation in the service of, or for, or under or in aid of any foreign prince, state, potentate, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of a province or people, either as an officer, soldier, sailor or marine, or in any other military or warlike capacity, — or to commit any other offence whatever against the provisions of the second section of the act of the parliament of the United Kingdom, passed in the fifty-ninth year of the reign of King George the Third, chapter sixty-nine, and intituled: ^ J^n Act to prevent the enlistment or engagement of his Majesty's subjects to serve in foreign service, and the fitting out or equipping, in his Majesty's dominions, vessels for warlike purposes without his Majesty's license ;' such offender may be prosecuted either in the manner provided by the said act, or in a summary manner before any judge of the superior court for Lower Canada, or any judge of either of the superior courts of common law for Upper Canada, or any judge of a county court, recorder, judge of the sessions of the peace or police magistrate, or before any two Justices of the Peace for the district or county where the offence shall have been committed, and if convicted of such offence on the oath of one or more credible witness or witnesses, may be con- demned to pay a penalty of two hundred dollars with costs, and may be committed to the common gaol of the district, county or city for a period not exceeding six months at hard labour, and if such penalty and costs be not forthwith paid, then for such further time as the same may remain unpaid ; and such penalty shall belong, one-half to the prosecutor and THE MAGISTRATE S MANUAL. 667 uro at owing retain, retain, Majesty, ;a}j;e to nilitary of any t of any ising or ver any rince OP r in any ly other i section le Third, vent the serve in [ajesty's !»Iaje8ty'8 uianner jfore any I judge of Canada, sessions istices of ice shall je on the be con- Eth costs, district, at hard [ith paid, unpaid ; jutor and one-half to her Majesty for the public uses of the province." (28 Vic. c. 2, B. 1.) " No prosecution shall bo commenced by virtue of this act more than one year after the commission of the offence." (Ih. 8. 2.) NOTE. This act was assented to and became law on the 18th of March, 1865. Upon perusal of the above act in connection with the second section of the imperial act (anfe pages 2*73-76), it will bo observed that the legislature of Canada has given to the Justices summary jurisdiction to try and dispose of or.ly those cases which may be prosecuted under the last clause of the said sectic n, begin- ing, ante, on the seventh line from the bottom of the 274th page : that s to say, the Justices can summarily try persons who procure or attempt to procure others to enter foreign service, but not those who themselves enter the foreign service. Oreat care should be taken by the Justices in fllling up the information, takinfc down the depositions, and drawing up the conviction and warrant of commitment, in cases which come before them, either under the above or the imperial act. The absence of the witness may make it necessary at the trial in the superior court to use as evidence depositions taken before the Justices, and therefore the depositions should contain all the evidence the witness gives, either on examina- *\r,u in chief or on cross-examination, and should be taken down in the words of the witness as near as can be. When the charge is for unlawfully enclcavoring to procure a person to go from Canada to a foreign country for the purpose of being enlisted, (fee, it Im not necessary that the intention of the prisoner should be known to the person he intends to canse to be enlisted, and the intent nay be established by other evidence. It is frequently the case that several persons join in the unlawful attempts and acts intended to be punished under this act, and in such cases, where the Justices proceed summarily, each of the parties convicted must be fined two hundred dollars. It is also sometimes the case that an attempt is made to take from Canada several persons at the same time. The person or persons who do this may be proceeded against in a separate and distinct case for the attempt made in con- nection with each of said persons. If several persons are tried and convicted at the same time for the same offence, the whole amount of costs should be divided as the Justice may deem advisable, and the amoimt to be paid by each person should be particularly stated. If the Justices see fit, they may direct one party to pay one cent or other small amount, and the other the balance of the costs. The Justices have not power to issue a warrant of distress for either penalty or costs to be paid under the authority of this act. In cases where the Justices intend to proceed summarily, they should have the following facts appear: 668 THE MAGISTRATE 8 MANUAL. Ist. That the offence mentioned in the information, conviction and com- mittal, was committed after the 18th March, 1866, and within a year next before the commencement of the prosecution. 2iid. That the offence waa committed in the county in which the Justices have jurisdiction. Srd. That the offence is sufficiently and correctly described in the conviction and committal. 4tlj. That the conviction was upon the oath of a credible witness or witnesses, giving the name, addition and address of each witness. 5th. That if convicted, the penalty is to be paid by each one convicted is $200. 6th. That the costs to be paid by each person so convicted is stated at some certain amount. ^th. That the prisoner is committed to prison at hard labour for some period not exceeding six months, as it would appear that a conviction without imprison- ment would be bad. Tlie Justices will observe from the following judgment of His Lordship the Chief Justice of Upper Canada, which we quote at length, the precision necessary in convictions and committals : — " TuE Queen, vs. James Wright, :| " This case comes before me on a return to a writ of ffdheas corpus, the prisoner's presence being dispensed with at his own request. " The return shews that the prisoner is in custody on four warrants. The first, dated twenty-eighth day of March, one thousand eight hundred and sixty- five, at Chatham, in the county of Kent, recites, that the prisoner was on that day ' charged before F. M., Esquire, police magistrate, and one of the Justices o^ the Peace in and for the said county of Kent, for that he on the twenty-second day of March last, at Chatham, did attempt to procure Thomas Liomgood to serve in a warlike or military operation in the service of the government of the United States of America, for which offence he was on the twenty-eighth day of March convicted before me, the said police magistrate, and condemned to pay a penalty of one hundred dollars, and in default of payment forthwith to be com- mitted to the common gaol of the county until paid,' and that the prisoner has not paid, <&c., and directs him to be taken and conveyed to the gaol, there to be kept until he shall pay the said penalty, together with the costs of this ' comment,' 01' i be ' thence delivered by due course of law.' " The second is dated thirtieth day of March, one thousand eight hundred and sixty-five, at Chatham, in the county of Kent, aforesaid. The magistrate is described as in the first warrant, and the offence is set out in terms precisely similar except that the name John J. Aussell is introduced in place of Thomas Liomgood. The adjudication is, that the prisoner pay a penalty of one hundred dollars and costs forthwith, and be imprisoned at hard labour in the common gaol for a period of six months, and in default of payment of the penalty and costs forthwith for such further time as the same remains unpaid, and the com- mittal is at hard labour for a period of six months, and for such other time as the said penalty and costs remain unpaid, also the charges of the commitment and conveyance to gaol. tion and coin- ear next before le Justices have I the conviction iss or witnesses, avicted is $200, I stated at some for some period ithout imprison- [is Lordship the ecision necessary I a writ of Habeas msed with at his r warrants. The iindred and sixty- joner was on that of the Justices o^ ihe twenty-second las Liomgood to overnment of the nty-eighth day of idemned to pay a Ithwith to be com- t the prisoner has gaol, there to be if this ' comment,' Light hundred and fhe magistrate is terms precisely 1 place of Thomas ky of one hundred IIP in the common the penalty and Laid, and the com- luch other time aa the commitment THE magistrate's MANUAL. 669 " The third is dated the twenty-eighth of March, in the year of our Lord one thousand eight hundred and sixty-fSve, and is like the first, correcting the word * comment' by substituting ' commitment.' In the margin of this warrant ia the following memorandum or entry : Fine One hundred dollars. Information and warrant Fifty cents. Hearing case Fifty cents. Return of conviction One dollar. Arrest and attendance by constable Two dollars. One witness Fifty cents. Commitment Twenty-five cents. Conveying to gaol One dollar. One hundred and five dollars seventy-five cents. " The fourth is dated thirtieth of March, one thousand eight hundred and sixty- five, and is like tlie second, but contains a marginal entry or memorandum like that on the third warrant. " The statute 28 Vic, chap. 281, enacts, ' if any person whatever in this pro- vince shall hire, retain, engage, or procure, or shall attempt or endeavour to hire» engage, or procure any natural-born subject of Her Majesty, person or persona whatever, to enlist or to serve, or engage to enlist or to serve, or to be employed in any warlike or militory operation in the service of, or for, or under, or in aid of any foreign prince, state, potentate, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise the power of government in or over any foreign country, colony, province, or part of a province or people, either as an oflScer, soldier, sailor, or mariner, or in any other military or warlike capacity, or (the other definition of offence not bearing on this case) such offender may be prosecuted either in the manner provided in the 69 Geo. III. chap. 69 (the Foreign Enlistment Act), or in a summary way before (among others) any Judge of either of the superior courts of common law for Upper Canada, or any Judge of a County Court, Recorder, Judge of the Sessions of the Peace, or Police Magistrate, or before ony two Justices of the Peace for the district or county where the offence shall have been committed, and if convicted on the oath of one or more credible witness or witnesses may be condemned to pay a penalty of two hundred dollars with costs, and may be committed to the common gaol of the district, county, or city, for a period not exceeding six montI;s at hard labour ; and if such penalty and costs be not forthwith paid, then for such further time as the same may remain unpaid, and such penalty shall belcmg one half to the prosecutor and one half to Her Majesty for the public uses of the province.' " It is objected, first, that it does not appear for what place the convicting magistrate is police magistrate. Each warrant has in the margin these words : Province of Canada, County of Kent, to wit ; and is dated at Chatham, in the county of Kent ; but there is a township of Chatham as well as a town of Chatham in that county, and, non constat, the magistrate was a police magistrate for the town, nor that he was exercising jurisdiction within the town. *\ 670 THE magistrate's MANUAL. " Second. That the offence is not sufficiently described according to the statute, which prohibits the hiring, retaining, ne days les shall of such istress." eople of ;o bring (om and Canada ice shall )r to the secretary of the province, in writing, by any person subscribing his or her name and address thereto, that for the preservation of the peace and tranquillity of this province itis expedient to remove therefrom any alien or aliens wli^flRay be in this province, or who may hereafter arrive therein, it shall be lawful for the Governor, by order under his Jiand to be pub- lished in the Canada Oasette^ to direct that any such alien or aliens who may be within this province, or who may hereafter arrive therein, shall depart from this province within a time limited in such order ; and if any such alien shall knowingly and willingly refuse or neglect to pay due obedience to such order, or shall be found in this province contrary to such order, after such publication thereof as aforesaid, and after the ex- piration of the time limited in such order, it shall be lawful for the Governor or for any Justice of the Peace to cause every such alien to be arrested and to be committed to the common gaol of the county, district, or place where he or she shall be so arrested, there to remain without bail or mainprize until he or she shall be taken in charge for the purpose of being sent out of the province under the authority hereinafter given." (28 Vic. c. 1.) " Every such alien so knowingly and wilfully refusing or neglecting to pay due obedience to any such order as afore- said shall be guilty of a misdemeanor, and being convicted thereof shall, at the discretion of the court^ be adjudged to suffer imprisonment for any time not exceeding one month for the first offence, and not exceeding twelve' months for the second and any subsequent offence." {Ih. s. 2.) " It shall be lawful for the Governor in any case in which any alien shall be found in this province after the expiration of the time limited in such order, and whether he or she shall or shall not have been arrested or committed for refusal or neglect to obey such order, or convicted of such refusal or neglect, and either before or after such alien shall have suf- fered the punishment inflicted for the same, by warrant under his hand and seal, to give such ahen in charge to any person or persons to whom he shall think proper to direct such warrant 676 THE magistrate's MANUAL. in order to such alien being conveyed out of the province, and such alien shall be so conveyed accordingly : Provided always, that incase such alien shall be taken in charge as aforesaid after^le close of the navigation of the river Saint Lawrence in the winter and before its opening in the spring, then and in an^ such case the said alien may, should the Governor see fit, be detained in safe custody until one month after the opening of such navigation : And provided further, that where such alien (not having been convicted as aforesaid) shall allege any excuse for not complying with such order, or any reason why the same should not be enforced, or wliy fur- ther time should be allowed him or her for complying there- with, it shall be lawful for the Governor in council to judge of the sufficiency of such excuse or reason, and to allow or dis- allow the same either absolutely or on such condition as he shall think fit ; and where such alien shall be in custody under such warrant of, the Governor, the person in whose custody he or she shall be, forthwith upon its being signified to him that such excuse or reason is alleged by such alien, shall make known the same to the Governor, who, upon receiving such notification, or in any case in which he shall be informed that any such excuse or reason is alleged by or on behalf of any alien to quit the province, shall forth'xith suspend the execu- tion of such warrant until the matter can be inquired into and determined by the Governor in council ; and such alien, if in custody under any such warrant, shall remain in such custody ; or if not in custody may be given in charge by any such warrant as aforesaid, and shall remain in custody until the determination thereon shall be made known, unless in the meantime the Governor shall consent to, or the Governor in council shall make order for the release of such alien, either with or without security : Provided always, that the Governor shall cause to be delivered to such alien in writing a general summary of the matters alleged against him or her, and shall allow him or her reasonable time to prepare his or her defence ; and it shall be lawful for him or her to summon and examine upon oath witnesses before the said Governor in council, and to be heard before them by himself or herself, or his or her THE magistrate's MANCAL. 577 vincc, )vi(ied rge as Saint spring, lid the month 'urther, 3resaid) •der, or ?liy fur- g there- judge of ' or dis- »n as he iy under stody he him that all make ing such ,ed that [f of any lie execu- lired into ,ch alien, in such by any ►dy until connsel, in support of the excuse or reason by him or her alleged." {Ih. s. 3.) " In every case in which power is given by this act to commit any alien to gaol without bail or mairf{)rize, it shall be lawful for any justice of any of her Majesty's superior courts in this province, if upon application made he shall see suffi- cient cause, to admit such person to bail, he or she giving sufficient security for his or her appearance, to answer the matters alleged against him or her." {Ih. s. 4.) " Where any alien who shall have been committed under this act to remain until he or she shall be taken in charge for the purpose of being sent out of the province, shall not be sent out of the province within, one mouth after such commit- ment, or when taken in charge after the closing of the naviga- tion of the river Saint Lawrence as aforesaid, then within one month after the opening of such navigation it shall in every such case be lawful for any of the Justices of any of her Majesty's superior courts in this province, or for any police magistrate or any recorder of a city, or for any two of her Majesty's Justices of the peace in any part of the province, or for anj judge of the sessions of the peace in Lower Canada, upon application made to him or them by or on behalf of the person so committed, and upon proof made to him or them that reasonable notice of the intention to make such applica- tion had been given to the Governor, according to his or their discretion, to order the person so committed to be continued in or discharged out of custody." {Ih. s. 5.) " Nothing in the preceding clauses of this act shall affect any alien under the age of fourteen years, or who shall have been residing within this province for five years next before the passing of this act." {Ih. s. 6.) " If any person shall within this province begin or set on foot, or provide or prepare the means for, or shall within this province engage, aid or assist, or procure another person or other persons to engage, aid or assist in the beginning or setting on foot, or in the providing or preparing the means for any military expedition, raid or enterprise, to be carried on from 37 1 ', III?' • 1 \ 678 THE MAGISTRATE 9 MANUAL. tlienec against tlio territory or dominions of any foreign statc^ or Hguinst tlio lives, liberties or properties of any one or nioro of the inhabitants of any territory or dominions of any foreign state, with who^i her Majesty is at peace, every person so offending shall bo deemed guilty of a misdemeanor, and on conviction thereof shall bo fined in a sum not exceeding three thousand dollars, and imprisoned for a term not exceeding three years." {Ih. s. 7.) "It shall be lawful for any Justice of the Peace upon request in writing of the attorney general or solicitor general of Uj^per Canada, or of any county attorney in Upper Canada, or of the attorney general or solicitor general of Lower Canada in Lower Canada (or for any recorder of a city or police magis- trate in this province, or for any judge of the sessions of the peace in Lower Canada without such request), to cause to be seized and detained any vessel manifestly built, or arranged, or fitted out for warlike purposes and about to depart this pro- vince, of which the cargo shall principally consist of arms or munitions of war, when the number of men shipped on board or other circumstances shall render it probable that such vessel is intended to be employed to cruise or commit hostilities upon the subjects, citizens or property of any foreign state with which her Majesty is at peace, and also to cause to be seized and detained any vessel or any arms or munitions of war which may bo provided or prepared for any military expedition, raid or enterprise against the territory or dominions of any foreign state with which her Majesty is at peace, and to retain posses- sion of the same until the decision of the Governor be had thereon, or until the same shall be released as hereinafter directed." {Ih. s. 8.) " Any sheriff', collector of customs, county attorney, police magistrate or recorder of a city in this province, any judge of the sessions of the peace in Lower Canada, or any field officer or captain of her Majesty's service, or any field officer or cap- tain of the volunteer militia force, or of the service militia (such field officer or captain of the volunteer militia force or of the service militia being at the time on actual service), or any THE MAGISTRATES MANUAL. 579 Ml police ^dge of officer )r cap- lilitia le or of lor any otlicr person specially enipowcrod for the purpose hy the Gov- ernor, shall 1)0 and ho is herol)y authorized and required to seize or cause to be seized any vessel or vehicle, and all arms or munitions of war about to pass tlie frontier of this province for any place within any forei«;u state, where the character of the vessel or vehicle, and tlie (quantity of arms and munitions of war or other circumstances* shall furnish probable cause to believe that the said vessel or vehicle, arms or munitions of war are intended to be employed by the owner or owners thereof, or any other person or persons, in carrying on any military expedition, raid, enterprise or operations, within the territory or dominions of any foreign state with whom her Majesty is at peace, and detain the same until the decision of the Governor be had for the restoration of the same, or until such property shall be discharged by the judgment of a court of competent jurisdiction ; provided tliat in case such seizure shall be made by a police magistrate, recorder of a city, or judge of the sessions of the peace, he shall, with due diligence, issue his warrant to justify the detention of the property so seized, on an oath or affirmation in the manner required by the next section of this act." {Ih. s. 9.) • "It shall be the duty of any officer, other than a police magistrate, recorder of a city in this province, or judge of the sessions of the peace in Lower Canada, making any seizure under the ninth section of this act, to make application with due diligence to any one of the Justices of any of the superior courts of this province, or to any police magistrate, or to the judge of the county court of the county in wliich sucli seizure may be made, or to the recorder of any city in which the seizure may be made, or to any judge of the sessions of the peace in Lower Canada, for a warrant to justify the detention of the property so seized, which warrant shall be granted only on oath or affirmation shewing that there is probable cause for believing that the property so seized is intended to be used in a manner contrary to the provisions of this act ; and if no such warrant shall be issued within ten days after any such seizure, the said property shall be restored to the owner, but if such 'i 111 1 580 THE magistrate's MANUAL. warrant slmll bo issued, then tlie property seized shall be detain- ed by the officer until the Governor shall order it to bo restored, or until discharged by duo course of law." {lb. s. 10.) " The owner or claimant of any property seized under the eighth and ninth sections of this act in Upper Canada may file his petition, setting forth the facts of the case, in any of the superior courts in Upper Canada, or in the county court of the county in which such seizure was made ; and the owner or claimant of any property seized under the said sections in Lower Canada may file Iiis petition in the superior court or circuit court of Lower Canada, setting forth the facts of the case, and thereupon such court shall proceed with all convenient despatch, after causing due notice to be given to the officer making such seizure, to decide upon the said case, and order restoration of the property, unless it shall appear that the seizure was authorized by this act ; and the superior, circuit and county courts shall have jurisdiction, and are hereby vested with full power and authority to try and determine all cases which may arise under the said sections of this act ; and in Upper Canada all issues of fact arising under it shall be decided *by a jury in the manner now provided by law." {Ih. s. 11.) " Whenever the officer making any seizure under the ninth clause of this act shall have applied for and obtained a warrant for the detention of the property, or the claimant shall have filed a petition for its restoration and failed to obtain it, it shall and may be lawful for the claimant or owner to file with the officer a bond to the amount of double the value of the pro- perty so seized and detained, with at least two sureties, to be approved by the judge granting the warrant or refusing restor- ation, with a condition that the property when restored shall not be used or employed by the owner or owners thereof, or by any other person or persons, with his or their privity, in carrying on any such military expedition, raid, enterprise or operations as aforesaid, and thereupon the said officer so de- taining the said property shall restore the same to the owner or claimant thus giving bond ; provided that such restoration TIIK MAGISTRATES MANUAL. 581 :ain- )re(l, • the may iiy of iirt of •wnor ms ill irt or )f the anient officer order at the circuit vested 1 cases and in all be law." ninth warrant 11 have it shall ith the le pro- I, to be restor- ed shall ■eofj or ity, in rise or so de- owner iration shall not prevent seizure from l)cing again ma/lo, in case there may exist fresh cause to apprehend a new violation of any of the provisions of this act." {Ih. s. 12.) * " It shall not bo necessary to lay the venue in any prosecu- tion under tliis act in the county or district where tlic ollene© was committed, but the informatit)n may bo laid and tlio oftence may bo tried in any county or district in this province." {Ih. 8. 13.) " It shall be lawful for any Justice of the Peace upon rc- cpiest in writing of the attorney-general or solicitor-general of Upper Canada or of any county attorney in Upper Canada, or of the attorney-general or solicitor-general^of Lower Canada, or for any judge of the sessions of the peace in Lower Canada, or for any recorder of a city or police magistrate in this pro- vince, without such request, and upon information upon oatji of one or more credible witness or witnesses that he or they believe that any arms or munitions of war are for the purpose of being employed in any military expedition, raid, enterprise, or hostile operations beyond the frontier of this province, or for any purpose dangerous to the public peace within this pro- vince, in the possession of any person or persons, or in any house or place, or that any person or persons is or are con- cerned or engaged in the manufacture of any arms or muni- tions of war, to issue his warrant to any constable or other peace-officer to search for and seize such arms or munitions of war in the possession of any such person or in any such liouse or place ; and it shall be lawful for any such constable or other peace-officer acting under any such warrant, or any other person or persons in his or their aid or assistance, to search for and seize any such arms or munitions of war being in the pos- session of any such person or in any such house or place as aforesaid ; and in case admission into such house or place shall be refused or not obtained within a reasonable time after it shall have been demanded, to enter by force, by day or by night, into every such house or place whatsoever, and to detain, or cause to be detained in safe custody in such place as tho said Justice of the Peace or other officer by whom such war.- 582 niE magibtkatk's manual. rant waf? granted shall ajipoint and direct, the arms or ninni- tions of war found and seized as aforesaid, unless the o^-ner thereot" shall prove to the satisfaction of such Justice or officer by whom such warrant was granted that such arms or muni- tions of war were not kept for any or either of the purposes aforesaid." {Ih. s. 14.) " It sliall be lawful for any ;[>er3on from whom any such arms or munitions of war shall be so taken as last aforesaid, in case the Justice of the Peace or officer upon whose warrant the same shall have been taken shall upon application made for that purpose refuse to restore the same, to apply by peti- tion for the restoration of the same in the manner hereinbefore provided in the eleventh section of this act, and the court in which any such petition has been filed, or any judge thereof, shall make such ordei' for the restoration or safe custody of swell arms or munitions of war as shall upon such petition appear to be proper." {Ih. s. 15.) " Nothing in this act shall be construed to interfere with any law in force in this province respecting the writ of habeas corpus.'''' {Ih. 8. 16.) " The word ' arms ' shall be lield to mean and include any weapon or weapons, or portions of any weapon or weapons, or arms, and anything necessary for the ordinary use, and any ordinary or necessary appendage of any weapon or weapons or arms or munitiwns of war, or for the carriage or transport of any weapon or weapons, or arms or munitions of war." {Ih. s. 17.) " The word " munitions of war " shall be held to mean as well any weapon or weapons or arms, and any portion or por- tions of any weapon or weapons or arms, and anything neces- sary for the ordinary use, and any ordinary or necessary appendage of any weapon or weapons or arms, or for the carriage or transport of any weapon or weapons or arms or munitions of war, as also all ammunition and substances em- ployed in the manufacture or composition of ammunition, gun])owder, shot, shell, or materials for encasing the same or forming ingredients thereof or used therewith, and all or any THE magistrate's MANUAL. 583 inflainmatory, combiiatible, or exploaivo article or articles, Bubstance or substances, and all or any inflammatory, com- bustible, or explosive missiles or machines, and all or any thing or things necessary or requisite for the use, and any ordinary or necessary appendages of any arms or munitions of war." {Ih. s. 18.) " This act shall continue in force for one year from the passing tliereof, and until the end of the then next session of parliament." {Ih. s. 10.) iv V: RECOGNIZANCE AND ESTREAT. In criminal cases, as soon as the Justice decides to send the case under investigation to court for trial (whether all the wit- nesses have then been examined or not), he should call in all the witnesses then examined who can give evidence on behalf of the crown, and bind them in recognizance to appear at the court to which he decides to send the case and prosecute or give evidence. It is not necessary for him, then, to \vrite out at full length as anfc^ pages 69 and GO : it will be sufficient if ho entei's in his book thus : Tho Queen against L. J. \naine party at full length.] A. B. in $200 to appear, prosecute, and give evidence at tho next court of Quarter Sessions for tiie county of [or as the case may be\ ; C. D. and K F. in $100 oacli, to appear and give evidence at said court. The Justice should read or report to them the conditions (ante, page 60) applicable, and after they severally admit themselves content with the said conditions he should sign it. He should then fill out and sign and serve on each of the parties so bound a notice in the form ante, page GO. Each Justice should be supplied by the clerk of the peace with several of these blank notices and blank recognizances. Married women and children cannot enter into a recogni- zance, and therefore it will be necessary to have some other person to enter into a recognizance for them. Whenever the Justice finds that one of the witnesses for the crown was an accomplice of the accused, he should require 584 THE MAGISTRATE'S MANUAL* such accomplice to procure sufficient security that he will appear and give evidence at the time. In the event of the accomplice refusing, or being unable to procure a party to become his security, the Justice should cause proceedings to be taken agaiust the accomplice, and have him also sent to prison. In the foreign enlistment cases, where the witness enlisted in foreign service, the witness can be proceeded against as well as the person who caused him to enlist ; and inasmuch as these cases are very frequently settled by the parties, pro- ceedings should be commenced against all such witnesses, and they should be sent to prison unless they give security that they will appear and give evidence. It is sometimes the case that witnesses, feeling themselves to be poor and unable to attend court, refuse to enter into recognizance. In such a case, the Justice should inform them that if indigent the court can make an order, for the payment of such sum as the witness may necessarily have to expend in attending court ; and if they stiD refuse, he should inform them of his duty under chapter 102, section 40 (see omte, page 41), and in the event of their still refusing, should commit the party to gaol. When the Justice transmits the papers to the county crown attorney, he should inform him of the name of any witness for tho crown who is unable to pay the expenses connected with lis attendance at the trial. If the witness so stated by the Justice to be indigent attends court and asks to be allowed the amount of his disbursements, the county crown attorney sliould certify the facts to the pre- siding judge, and request him to make an order for the pay- ment of such sum as the witness may require to disburse during his absence from home, or such portion thereof as may be deemed just. THE magistrate's MANUAL. 585 he TVill it of the party to edings to o sent to 8 enlisted igainst as Eismuch as rties, pro- lesses, and jurity that themselves enter into form them le payment > expend in rform them page 41), ommit the mty crown ny witness connected Bnt attends airsements, ;o the pre- T the pay- ;o disburse lof as may EVIDENCE. The word evidence, considered in relation to law, includes all the legal means, exclusive, of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation.* Satisfactory or sufficient evidence is that amount of proof which ordinarily satisfies an unprejudicedf mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined : the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of an ordinary man.f Attendance of Witnesses. — Justices have ample power to bring before them persons required as witnesses, and also to provide for their attendance to give evidence at the superior courts. (See ante^ p. 77.) Many Justices do not attach importance to the recognizance to appear and give evidence, and frequently they return the examinations and depositions without the recognizance of the witnesses for the crown. When this is the case, a temptation is held out to the prisoner or some designing friend to try and prevent the attendance of the crown witnesses at court. With the exception of married women, all persons, includ- ing minors, may be bound by recognizance to appear and give evidence. The husband, or some friend of a married woman, should be procured to become the surety for the appearance of a married woman to give evidence. There is no good reason why the law should not be so amended as to permit a mjirried woman to become bound by recognizance to be enforced against her and her property, if living apart from her husband ; and against her husband, if living with him, as in such case she is presumed to be under his control. Justices have the power to commit all others than married women who refuse to enter into recognizances to appear and 11 ^?l 1 * Taylor o» Ev. sec. 1. \lh. sec, 2. 686 THE magistrate's MANUAL. give evidence, in cases of felony and misdemeanor ; and they should in all such cases commit persons who refuse to become bound in a penalty for their appearance. Competency op Witnesses. — "The general rule is, that neither an interest in the matter in question nor a previous conviction of a crime incapacitates a person from being a "witness ; and the exception to this rule provides that the fol- lowing persons shall not be competent witnesses on behalf of the side in which they are interested : 1. " Any party to any suit or proceeding individually named in the record ; 2. "Any claimant or tenant of premises sought to be re- covered in ejectment ; 3. " The landlord or other person in whose right any defen- dant in replevin may make cognizance ; 4. " Any person in whose immediate or individual behalf any action may be brought or defended, either wholly or in part ; 6. " The husband or wife of any such party to be called as a witness on behalf of such party. " But any of the said parties so excepted may, in any civil proceeding, be called a,nd examined at the instance of the opposite party." (Con. Stat. U. C. c. 32, sees. 34, 35.) In cases of bigamy, the first and lawful wife is not a com- petent witness, but the second wife is. " In all cases of personal injuries committed by husband or wife against each other, the injured party is an admissible witness against the other."* Public Documents. — Certified copies of documents provable by their mere production may be given in evidence. (Con. Stat. U. C. c. 32, sees. 6, 7, 8.) Want of Religious Principle. — " A person who does not believe in a God, and that He will, either in this or the next world, pimish those who swear falsely, is not a competent witness."! • 1 East P. C. 455. + Roscoe, C. E. 121. THE magistrate's MANUAL. 687 ,nd they 1 become is, that previous being a t the fol- behalf of lly named to be re- any defen- behalf any >r in part ; 1 called as a In any civil mce of the 35.) not a com- husband or admissible ts provable nee. (Con. ho does not or the next competent Want of Understanding. — " A child of any age, capable of distinguishing between good and evil, may be a witness, and examined on oath."* " When a child is found incompetent from want of religious instruction, the case may be postponed a reasonable time till he obtains such instmction as will qualify him to take an oath."* Affirmations by Quakers, Menonists, and Tunkers. — " In any case, criminal or civil, in which an oath, declaration; or affirmation is required by law, or upon any lawful occasion whatever, on which the oath of any person is by law ad- missible, a Quaker, Menonist, or Tunker, or a member of the church known as the * Unitas Fratrum^ or the United Brethren, sometimes called the Moravian Church, having first made the following declaration or affirmation, viz., ' I, A. B., do solemnly, sincerely, and truly declare and affirm that I am one of the society called Quakers, Menonists, Tunkers, or Unitas Fratrum, or Moravians' {as the case may he\ may make his affirmation or declaration in the form following, that is to say : ' I, A. B., do solemnly, sincerely, and truly declare and affirm,' &c. ; and such affirmation or declaration shall have the same force and effect to all intents and purposes, in all courts of law and equity, and all other places, as an oath taken in the usual form."t (Con Stat. U. C. c. 31, s. 1.) AuTHORrrY to administer. — " Every person authorized or required to administer an oath for any purpose, may administer such affirmation or declaration." {lb. s. 2.) RULES respecting EVIDENCE. Evidence should be confined to the points in issue. — This rule can only be applied by Justices to cases which they * Roacoe, 118. t AFFIRMATION IN PLAGE OF OATH. I, A. B. do solemnly, sincerely and truly affirm and declare that I am a mem- ber of the religious sect called (whatever it may be), and that the taking of any oath is contrary to ray religious belief, as well as essentially opposed to the teneta of that sect ; and I do also in the same solemn manner affirm and declare that the evidence which I shall give in the matter of (or case of, as the case may be,) [here name complainant and defendant] shall be the truth, the whole truth, and nothing but the truth. M 588 THE magistrate's MANUAL. have the power to try, and do try, summarily. When the Justice states the substance of the information or complaint to the defendant, he should take down the answer of the defendant, and then confine the evidence to the issue or issues raised by it. "We will suppose a case, in which A. summoned B. for the recovery of a certain amount of wages ; that when the case is stated by the Justice, B. answers that A. left B.'s employment before the time for which he (A.) had hired had expired. In this case the evidence will be confined to the question as to whether or not A. left before the expiration of the time for which he hired, unless A. replies to B.'s plea or defence, that though he left before the expiration of the time, he left in pursuance of an agreement with B. that he (A.) should be allowed to leave. In this last case the question will be as to whether or not such agreement or understanding was entered into, and evidence not touching upon that question should not be re- ceived. Best Evidence. — " The best evidence of which a case tried by Justices is susceptible should always be produced. This rule does not demand the greatest amount of evidence which can possibly be given of any fact ; but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party."* "This rule does not prevent a party from selecting the weaker instead of the stronger evidence, in case of an omission to supply all the proofs capable of being produced, "f Secondary Evidence. — " It is the general rule that secon- dary evidence is inadmissible, until it be shewn that the pro- duction of primary evidence is out of the power of the party offering such secondary evidence. Secondary evidence of the contents of documents may be received : 1st. After evidence has been given that the docu- ment once existed, and that it has been destroyed ; 2nd. When the original has been proved to be in the ppssession of the Taylor, 882. t 1 Ph. Ev. 481. THE MAGISTRATE S MANUAL. 589 ig the lission secon- le pro- party lay be docu- iWhen of the adverse party, who refuses to produce it after notice to produce, in those cases where notice to produce is necessary. It is the general rule that notice to produce must be given ; and the exceptions are in those cases where, from the proceedings, the defendant must know that he will be charged with the possession of the instrument, and called upon to pro- duce ; or when it is shown that the adverse party or his attorney has the original instrument in court. 3rd. Secondary evidence of contents of writings, when their production is either impossible or inconvenient. Thus, notices warning trespassers, affixed to boards, gravestones, surveyors' marks on trees, and the like, may be proved by secondary evidence. 4th. It will be found from the perusal of sec. 31, ante p. 38, that secondary evidence of oral testimony taken before Justices in criminal cases may be received, provided it is proved either, first, that witness is dead, or second, that the witness " is so ill as not to be able to travel," and " it is also proved that the deposition was taken in the presence of the person so accused, and that he, his counsel or attorney, had a full opportunity of cross-examining the witnesses," provided the deposition pur- ports to be signed by the Justice by or before whom the same purports to have been taken. It is also provided (see s. 33, cmte, p. 39,) that " upon the trial of any person the examinations may, if necessary, be given in evidence against him without further proof thereof, imless it be proved that the Justice or Justices purporting to have signed the same did not in fact sign the same." Under this clause the secondary evidence can be used in the event of the witness being kept out of the way by the adversary, or becoming insane, or in any case where it is decided by the 00 Ui!-, to be necessary that such evidence should be used. It is evident that the legislature intended that the Justice should not only take all the " statements " of the witnesses which refer to the charge against the accused ; but that they should take down the statements of the witnesses as nearly as can be in their own words. " Not only does it frequently happen that facts which on preliminary inquiry appear to be 690 THE magistrate's MANUAL. of trifling importance, turn out in the sequel to be extremely relevant ; but where all the evidence is not given, the court the prosecutor, and the prisoner are alike kept in the dark, and much time may be wasted in endeavouring to throw discredit upon the testimony of witnesses by shewing that they have made statements at the trial which are not to be found in the depositions."* Presumptions. — The law presumes a man to be innocent imtil the contrary be proved, or appears from the presumption raised by the facts proved. I Presumptions are of three kinds : violent presumptions, when the facts and circumstances proved necessarily attend the fact presumed: probable presumptions, when the facts and circumstances proved usually attend the fact presumed ; and light or rash presumptions, which have no validity. If upon a charge for murder it were proved that deceased was murdered in a house, and that the defendant was immedi- ately afterwards seen running out of it with a bloody sword in his hand, these facts raise a violent presumption that the defen- dant was the murderer.f Upon a charge for stealing in a house, if the defendant be apprehended or discovered a few yards from the door with the stolen goods in his possessession, it would be a violent pre- sumption of his having stolen them ; but if they were found in his house some time after the larceny, and he refused to account for his possession of them, this, together with the proof that they were stolen, would amount to a probable presumption merely ; but if the property were not found recently after the loss — as, for instance, not until sixteen months after — it would be but a slight or rash presumption.:]: If the prisoner gives a reasonable account of the manner in which he became possessed of the goods, this will so far rebut the presumption as to throw it upon the prosecutor to negative that account. The prisoner should be presumed to intend to do that which would be the probable and natural consequence of his acts, and * Taylor, s. 453. f 1 ^^- Ev. 147, 167. % R. v. — , 2 C. & P. 459. THE magistrate's MANUAL. 591 ely urt, and edit lave tlie )cent ption tions, id tlie a and ; and ceased amedi- rord in f defen- ant be itli tlie it pre- »und in tcconnt >f that iption rter the wonld mer in ir rebut legative which ;ts, and 469. therefore the intent to kill is conclusively inferred from the deliberate violent use of a deadly weapon.* Hearsay. — It is the general rule that hearsay is no evidence, and for two reasons : what the other person said is not upon oath, and the party who is to be affected by it had no opportu- nity of cross-examining him.t To this general rule there are exceptions. "What a witness has been heard to say at another time may be given in evidence, in order to invalidate or confirm the testi- mony he gives in court. When hearsay is introduced not as a medium of proof to establish a distinct fact, but as being part of the transaction in question, it is admissible. Declarations made by an agent acting at the time within the scope of his authority, are receivable against the principal. Upon the same principle the declarations of a person robbed, or a woman ravished, as to the facts, made immediately afterwards, are evidence to confirm them, though the particulars of their statement cannot be inquired into. Dying declarations can only be received in cases of homicide when the death of the deceased is the subject of the charge, and the circumstances of the death is the subject of the dying declaration.:}: It is essential to the admissibility of these declarations, first, that at the time when they were made the declarant should have been in actual danger of death / secondly, that he should then have had a fall apprehension of his danger , and lastly that death had ensued. Admissions and Confessions. — Admissions and confessions are admissible, unless they were made in consequence of some inducement or threat, which, being held out or sanctioned by a person in authority, related to the prisoner's escape from the charge against him.f In most cases, it may be admissible and proper to caution the prisoner in general terms that any confession he^hiakes will be admissible against him at the trial, and can do him no service. Still it is not necessary in general to do more, than that the * Taylor, 94. f * ^^- Ev. 149. % Taylor, s. 644. \ Taylor, s. 807. I. '? 593 THE magistrate's MANUAL. party receiving the confession should leave the prisoner at full liberty to act and judge for himself. Though the law is as above stated, many Justices are in the habit of dlamuiding the culprit with more or less earnestness from disclosing any fact which may tend to establish his guilt. This practice, which is rather to be admired for romantic generosity than for wisdom, or for any beneficial consequences resulting therefrom to the public, has been very properly con- demned by several able judges as an absurd and improper mode of shutting up one of the most valuable sources of justice and truth.* When the Justice, after the close* of the examination and commitment of defendant for trial, becomes informed that the defendant made admissions which do not appear in evidence, he should, without delay, write and commmiicate the facts to the Crown Attorney, that he may have time to determine as to whether or not it will be necessary to subpoena other wit- nesses than those examined before the Justice. Examination op Witnesses. — If the Justice believes that it will promote the discovery of truth that the witnesses be examineii out of the Jiearing of each otJier, he should order that all or such of the witnesses as should be examined apart retire. Disobedience op Witness. — If a witness disobeys the order to withdraw, he is guilty of a contempt of court ; but the Judge or Justice has no right to reject the witness who disobeys the order to retire. If a person called as a witness refuses to be sworn, or if sworn refuses to give evidence, the Justice should not hesitate to commit him under the authority of Con. Stat. C. c. 103, s. 19, ante p. 77. Refreshing Memory. — A witness may refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book, provided the writing was made at about the time of the fact in question by himself, or at or about the time made known tJJ' him to be correct. Leading Questions. — "As it is the general rule that the party who produces a witness cannot ask him questions which sug- * Taylor, s. 805. THE MAGISTRATES MANUAL. 5D3 tfull n the itncBS guilt. lantic lences y con- .^roper justice m and hat the idence, facts to mine as Lier "wit- p that it jsees be Her that t retire, le order e Judge >ey8 the (8 to be should )n. Stat. issist his ^dum, or )out the Ithe time [he party lich sug- 5*est the answer dcairod, the Judge or Justice before whom a witness is examined may, in his discretion, allow leading (ques- tions to be put, whenever and under whatever circumstances and to whatever extent he may think that justice recpiires that a leading question should bo put."* '* When the witness proves adverse to the party producing him, interested for the opposite party, or is a witness of tender years, leading questions may be allowed."* Adverse Witness. — " A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but in case the witness, in the opinion of the Judge, proves adverse, such party may contradict him by other evidence ; or, by leave of the Judge, may prove that the witness made at other times a statement inconsistent with his present testimony. But before such last-mentioned proof can be given, the circumstances of the supposed statement, suffi- cient to designate the particular occasion, must be mentioned to the witness, and he must bo asked whether or not ho did make such statement." (Con. Stat. U. C. c. 22, s. 214.) ' ^ Cross-Examination. — Upon cross-examination, the witnon may be asked leading questions. The questions on cross- examination need not be confined to the matters spoken of in the examination-in-chief. Ko question respecting any /act irrelevant to the question at issue can be put to a witness, for the purpose of afterwards contradicting him ; and if such a question is put and answered, the answer will be conclusive. With the view of impeaching the character of a witness, he may, on cross-examination, be asked questions with regard to alleged crimes or other improper conduct on his part ; and if the fact inquired into be relevant, it may, if desii'ed, be proved by other evidence. f In an action on a promissory note, the execution of which was disputed, it was held material to ask^'^e subscribing witness whether she was not the plaintiff's kept mistress.:}: 38 * Taylor, s. 1263. f Taylor, a. 1293. :j: Thompson v. David, Y C. «fe P. 350. 594 THE HAOTSTBATE^S MANUAL. I i "What QrEsnoNS WrrNKss not compelled to answer. — A witness is not compelled to answer when the answer would have a tendency to expose the witness, or the hnsband or wife of the witness, to any kind of criminal charge, or to a penalty or forfeiture of any nature whatever. When the witness declines to answer, the Judge or Justice should question the witness and decide as to whether or not ho is to be required to answer. If the question touching which the witness is interrogated forms any material part of the issue, ho will be obliged to give evidence, however strongly it may reflect on his conduct.* Impeaching Credit op "Witness. — The credit of a witness may be impeached in any of several ways : 1st. AVitnesses may bo called to disprove such of the facts stated by him as are material to the issue j 2nd. Proof may be given of state- ments made by the witness inconsistent with his testimony at the trial ; and, 3rd. Evidence may be given reflecting on bis character for veracity. Tlie evidence must be confined to his general reputationj and will not be permitted as to particular facts. The regular mode of examining into the character of the person in question is to ask the witness whether he knows his general reputation among his neighbours ; what that reputa- tion is ; and whether from such knowledge he would believe him upon his oath.f When the general reputation of a witness has been im- peached, the party calling the witness so impeached may re- establish his credit by cross-examining the witnesses who have spoken against him as to their means of knowledge and the grounds of their opinion, or as to the hostile feelings towards the person whose testimony they have discredited, or as to their own character and conduct, or by calling other witnesses either to suM^rt the character of the first witness or to attack in tlieiftum the general reputation of the impeaching witnesses, t * Taylor, s. 1?18. f Taylor, s, 1324. % Taylor, 8. 1327. INDEX. A. PAOB AoDvoTion 128 Of females under sixteen 129 Of heiress 128 Abettors, &o., how punishable 76 Aooessories, &o 181 In misdemeanors 184 Abortion, attempt to procure ISO Absoondino Debtors, duties of Justices in certain oases relating to 657 When Justice may issue attachment against 667 Warrant of attachment against, note 668 Abcsb or Infants 180 Aooessories and Abettors 181 To felony before the fact }M To felony after the fact ., 192 Oenerally 138 &c., to robbing a post-office '. 418 Aiders and abettors to same 419 Trial of offenders and, in cases of forgery ~ 286, 289 Trial of 289 To murder 388 AOOOMPUCBS 136 AooouNTS, neglecting or refusing to render, by distillers, &o 242 Constables' 190 AoovsED, notice of recognizance to be given to, and his bail 63, 66 Admissioms of, may be used as evidence against him 89 Warrant to convey, before Justice in another county 64 Statement of the 69 Justice to caution, as to any statements he may make 88 Power of Justice to remand 41 May be admitted to bail 42 May be browght up at an earlier day ^(■| 42 Aooosations, Falsb, to extort 684 Actions, limitation of 867 And prosecutions, where to be tried., 867 Notice of , 857 Addenda. » 657 «p ti '1 596 INDEX. FAQB Adjournment of examination on recognizance of bail 68, 87 Adjournment, warrant of committal during the hearing 401 Adjudicate, refusal to 17 Admissions of accused as evidence against him 80 And confessions, «ee Evidence 591 Advrrsk Witness, see Evidence 698 Advertising for stolen property, «ec Larceny 354 Affidavit of attachment against absconding debtors 557 Affirmation, Justices to administer oath or 88, 68 By Quakers, Menonists, Tunkers, &c 587 Affrays 186 Agents selling liquor in contravention of law, punishment of 506, 510 Agreement with poundkeeper by party impounding cattle, &c 408 Aliens may become naturalized 658 Oath of residence to be taken by 658 Oath of allegiance to be taken by 659 Certificate of residence to be given to, by Justice 659 Oaths and certificates of, to be filed 659 Certificate of naturalization of 660 Governor may order, to leave the province in certain cases 574-6 Not leaving the province when ordered, may be imprisoned, &c 575 l^r If, committed to gaol without bail, Judge may admit to bail in cer- • tain cases 677 When, committed to gaol may be sent out of the province 577 When, committed to gaol may be discharged 677 ♦ Under fourteen years of age 677 Allegiance, oath of, to be taken by aliens wishing to become naturalized.. 559 Amusements and games on the Lord's Day prohibited 424 Animals, cruelty to 205 Stealing domestic, see Larceny , 351 What, to be impounded , 407 ^ Liability of owners of 407 Sale of impounded 407 If impounded, are worth more than $10 407 Notice of sale of impounded 409 Liability of pound-keeper for refusing to feed impounded 411 Sale of impounded, and how purchase money applied ... 410 Appeal from order, deciaion or conviction of Justice 20 Costs of, to whom payable 95 Costs of, how recoverable 96 Against suanary convictions under the criminal acts 20 - , Gaoler to ^Weive costs of, and discharge prisoner 99 In case an, against conviction. Justice may issue warrant 95 If costs of, be ordered to be paid 95 If costs not paid within a certain time 96 ^ ';,' Certificate of Clerk of the Peace that costs of an, are not paid 121 INDEX. 597 PAOB .63, 87 401 17 39 691 693 354 657 . 88, 68 687 136 ..506, 610 498 668 658 559 659 659 ". 560 674-6 &c 676 in cer- 677 677 ... 677 ... 677 alized.. 659 424 205 351 407 407 407 407 409 411 410 20 95 96 20 99 95 95 96 id 121 PAQB Appeai., warrant of distress for costs of an, &c 121 General form of notice of, against a conviction 126 Form of recognizance to try the 125 Against convictions for cruelty to animals 209 Procedure in cases of «, 136 Against convictions 136 Triable by jury 136 ♦ In cases of summary convictions 137 From Quarter Sessions and Recorders' Courts .. 138 May be abandoned by appellant giving six days' notice, &o 138 In cases referring to ferries 269 In cases under laws relating to spirituous liquors 507, 519 Appkarancb of both parties >.., 83 Apprentices, definition of term 383 Deserting their masters' service 384 Complaints by, against masters 383 Complaints by masters against 383 Penalty for harboring absconding 385 Minors and 383 Death of, by bad treatment of master, s«e Murder 388 Aprons, millers to construct, to their dams 376 To dan^s on the river Moira 378 Arms, illegal drilling to the use of. 216 Returning Officers of elections may demand the surrender of all 221 Clothing, &c., belonging to the Crown, penalty for having possession of 383 Possession of, by persons near public works 478 And munitions of war, may be seized in certain oases 578-81 Arrest of offenders caught in the act at night 140 Of persons in possession of goods supposed to have been stolen 140 When a constable may make, without a warrant 140 For cruelty to animal? 207 Of party not appearing under the laws relating to highways 819 Of aliens in certain cases 575 Duty of constable in case of 35 How made 139, 190 How made, if offender caught in the act 139 For alleged breaches of the peace 141 Of aliens refusing to leave the province when directed 576 Arsenals, magazines, &c., arson of 144 Arson ^.^. 141 Of houses containing persons < 141 Of churches, &c 142 0^' school-houses, &o 142 Of ships 148 Oi haystacks, &c 143 Attempts to commit 148 ^]i i^^V w 598 INDEX. PAOS Arson, of railway buildings 144 Of dockyards, &o 144 Articles OF THB Psaor, costs in 204 Assault, definition of 145 Common 145 What amounts to an 146 Battery 145 What does not amount to 146 Aggravated 147 Summary proceedings in cases of 147 On persons apprehending offenders by night 14& . On a magistrate or officer, in certain cases 160 With intent to commit a rape 161 With intent to rob 151, 488 On bailiffs, &c., of division courts 152 Form of conviction in.. 162 And battery during elections to be deem«d aggravated 221 Certain, punishable with imprisonment 328 And robbery 483 Assemblies, unlawful, «M Riots, &<9 < 473 Assessors, Collectors, &c., offences by 445-& Asylums, Private Lunatic, Justices may license 862 Attempt to commit felony, see Assault 14& To commit offences 152 To destroy buildings, &c., i^e Explosive Substances 247 Attendance may be compelled by warrant 82 Of witnesses, ««e Evidence 585 Attorney, counsel or prosecutor may be heard by 82 Both parties may have an 153 Embezzlement by an 229 County Crown 16, 562 General, consent of, to indictments for embezzlement 231 Auctioneers, hawkers, &c., licensing of 856 Auditors, appointment and duties of School 438 Authority to administer oaths, who has 587 Award of fence-viewers to be in writing 264 B. Backing Warrants , 34, 66 Endorsement Jn, of distress 11@ Badges, Party, aielections, prohibited , 222 Bags, Stealing from letter 414 Injuring letter 417 Bail 154 In misdemeanor 13 - ■ Accused may be admitted to 42 INDEX. 599 PAOV .. 144 ,. 144 .. 204 .. 145 .. 145 .. 146 ... 145 .... 146 ... 147 ... 147 ... 14& .... 150 .... 151 51, 488 .... 152 .... 152 .... 221 .... 828 488 473 .. 445-6 862 ... 149 152 247 , 82 , 585 . 82 . 153 .... 229 16, 562 ,. 231 .. 856 .. 438 .. 587 .. .. 264 34, 56 . ... 116 222 414 ,.. 417 ... 154 ... 18 ... 42 PAai Bail, In case of tnisdemeanor one Justice may 45 When two Justices may, in case of felony, 45 When County Judge may order to be admitted to 46 Recognizance of, instead of remand ... 68 Recognisance of 65 Notice of recognizance of, to be given to accused and his bail 66 Warrant of deliverance on, being given for a prisoner already com- mitted 66 Falsely personating 279 Transmitting depositions when desired 50 Defendant may be admitted t>o, till return of distress 92 Judges may admit aliens, imprisoned by order of the Governor, to.. 677 Bailablb, offences not, except by Judge's order 46 Bailees, larceny by, 890 Bbayeb, musk-rats, &c., time for taking 303 Bells, sleigh horses to have - 321 Railway engines to have 465 Bench Wabaant 80 BiOAifY 164 Bill or Costs, 121 Et cetera, required by Customs Act 290 Of oath of Justice, as to property qualification 661 Certiorari , 20 Challenge to fight 166 Charitable associations, embezzlement by officers of Charivaries, see Nuisances 892 Chastisement, lawful, not an assault 146 Cheating 166 By false pretences , 166 Check-Gates on toU-roada ^ 810 Checks on parcels, see Railways 464 Children, decoying, under ten 129 Abuse of 180 Support of illegitimate 581 I I «F 602 INDEX. PAGB Chvbohes, arson of. 142 Demolishing 867 ClAiM of right 16, 171 Glbbotman, assaulting a, tee Assault 150 Glbrioal error corrected 134 CiBBK of sessions, &c 97 As to the fees of 97 Penalty for receiving greater fees than entitled to 97 What fees, may demand 98 Penalties paid to gaoler in L. C. to be handed over to 99 To whom be is to pay penalty 99, 100 To keep an account of money received by them 100 Clebks, tee Embezzlement ty 225 ; And servants, larceny by, tee Larceny 853 Of Justices, clerks of the peace in Lower Canada to act as ,... 101 Fees receivable by Justices of the Peace or their 203 Of the Peace in Upper Canada, recognizances to be sent to 79 Recognizances in certain cases to be certified by 93 Certificate of, that costs of appeal are not paid 121 Clothinq, &c., of troops, penalty for having in possession 888 COOK-FIQHTINO 171, 205 Coin, offences relating to ,..,. 72 Counterfeiting current 172 The making or uttering spurious foreign 176 Spurious copper and brass < ..•• 177 CoiiLBCTORs and assessors, offences by 445-6 Commission of the peace, form of i 28 Commitment 19 After indiotmeut 29 Of witness, for refusing to be sworn 68, 108 Of witness, for refusing to enter into recognizance 61 For trial at next court 18 Warrant of, for tv person indicted 65 Warrant of 67 If distress would be ruinous 92 If no sufficient distress 93 Second 93 Defendant to be served with order before, distress or 84 In case of appeal, warrant of may issue 96 Warrant of, one Justice may issue 97 Warrant of, for want of distress ..„ 117, 120, 122 On refusal to give name, tee Cruelty to Animals 206 How made • ^^^ Defective 180 For trial „ 180 INDEX. 603 PAOB CoHMiTMKNT, in iodictable offences 180 Upon a conviotion for a penalty in the first instance 117 . Warrant of, or an order in the first instance 118 In defaalt of sureties 127 In default, tee Cruelty to Animals 206 Where no sufficient distress, tee Distresses for Small Penalties 212 In default, in cases relating to ferries 269 Warrant of, under the Fishery Act 271 Under the Foreign Enlistment Act, form of , 571 Committal for safe custody, warrant of 104 For non-payment of fine, &c., under the Fishery Act 268 For non-payment of penalties » 268 Complainant or defendant not to make observations, &c 85 A competent witness in certain cases 87 . May be examined on oath 87 Complaint, information and, for an indictable offence 52 Certain, must be in writing 78 Or information must be upon oath 80 Or information must be for one matter only 80 Or information, time for making 80 Or information, as to hearing 81 Or information, to be heard in open court 81 Or information, proceedings at the hearing of 84 If dismissed, Justice may make an order of dismissal 86 Or information, order of disposal of 118 On dismissal of, warrant of distress for each HO Or information, form of order of dismissal of 123 For sureties for the peace, by the party threatened 126 . Summons to a defendant upon a 103 Penalty for preferring unfounded, tee Distresses for Small Penalties 272 Form of, under the Fishery Act 269 Compounding offences, vhen allowed 282 Felonies 181 Misprision of felony , 181 Corruptly taking reward to recover stolen goods, is 181 Offering rewards under promise of secrecy 181 Concealment of birth 182 Conviction for an indictment for murder 183 Concubine or prostitute, forcing against her will, a rape 445 Condition, if negatived, need not be proved 86 Conductors of railway trains, intoxication of, a misdemeanor 466 • Confession may be given in evidience at trial 39 Consecutive imprisonment 19 CONSFIBAOT t ,.c 188 Constable, duties of 70, 91, 93, 96, 190, 193 Duty of, in cases of arrest 36 :| ,;!.; ; ; -i«i Jiii<.-j^':_.L>_ 604 INDEX. PAOB CoNSTABLB, to be paid on producing oertifioate.« 46 To attend court, &c 82 Receipt to be given to, by Justice 66 To attend and depose 70 Return of, to a warrant of distress 116 High 190 Office of 190 How arrest to be made by 190 Accounts of 190 To search and hand-ouff prisoner 191 Costs of 192, 205 Practical directions to a 192 Criminal duties of, and execution thereof 193 May arrest common prostitutes 197 Refusing to assist a 197 May arrest without warrant, when 140 Appointment of ordinary 185 Oath of an 185 Appointment of a special ^ 186 Oath of a special 186 Duties of a special 186-9 Appointment of, in unorganized tracts 189 A special, at elections, when to be sworn 221 Contempt of a justice 197 Of court 592 GoNVKTANCE of prisoucrs to gaol •. 47 Conviction 18 Form of, to be as in schedule ~ 89, 110 Costs of, to be specified in 90 When to be in general form 89 Return of 12 Formal, or order , 12 "When to be drawn up , 86 In certain cases, shall be enforced 95 In case of appeal against. Justice may issue warrant 95 For a penalty, to be levied by distress 109 Form of, for offences against by-laws 164 Form of, in cases of cruelty to animals 207 When the punishment is by imprisonment 110 Warrant of distress upon, for a penalty 114 Form of, in cases of assault 152 Warrant of commitment upon a, for a penalty 117 • For concealment of birth upon an indictment for murder 183 Warrant of distress for costs of appeal against a 121 General form of notice of appeal against a 121 Meaning of term 198 INDEX. 605 pAoa CoMViOTioM, ythut a summary 198 How offence to be described in 200 Under a by-law 201 Amendment of 201 Death of Justice in refereiice to a 201 Death of the informer in reference to a 201 Appeal against a 136 Appeal against the case of a summary 137 A summary, under a by-law 168 On view, for yiolation of Fishery Act 268 ' Form of, under Fishery Act 270 Of juvenile offenders 336 For offences committed on the Lord's day 425 Be turn of, to be made by recorder to Quarter Sessions 458 Certified copy of a, to be received as evidence 458 Effect of, by a recorder 459 Form of a summary, by a recorder 460 Form of, by a recorder upon a plea of guilty 460 Returns of 471-3 Under the Foreign Enlistment Act, form of 571 Copy of order defendant to be served with, &c 89 Of depositions 16 Of charge, persons levying distress to give to party distressed 213 GoBOMER, duty of a 49 And Justice, penalty on, in certain cases 51 To deliver papers to County Crown Attorney 562, 566 CoRPOBATiOMs to keep roads, streets, &o., in repair ^ 307 Neglect of, to keep roads, streets, &o., in repair 308 Penalty on, for not keeping roads, streets, &o., in repair 323 Costs, payment of, when party committed wishes to be bailed 50 Payment of, for conveying persons to gaol 48 Power of Justices to award, &o 90 May be awarded to defendant, when 90 To be specified in conviction 90 May be recovered by distress 90 Of appeal, to whom payable 95 Of appeal, how recoverable 96 Of appeal receivable by gaoler 96 When case is dismissed 202 Fees, receivable by Justices or their clerks 203 Fees in cases not expressly provided 203 As to summary proceedings 204 Of witnesses 204 Bill of.... 204 Not allowed to Justices or witnesses in certain cases 204 In articles of the peace 204 606 INDEX. FAGI Costs, of Justice when case dismissed 206 Of constables 192, 205 In certain cases, recoverable from prosecutor 05 Warrant of distress for, upon an order for dismissal Hg Of an appeal, certificate of clerk of the peace that they are not paid 121 Warrant of distress for, of an appeal 121 Of distress, tee Distresses for Small Penalties 211 Schedule of, on distresses for small rents and penalties 213 In cases under the laws relating to spirituous liquors • 210, 615 CovNSKL or Attorney, prosecutor may be heard by 82 GouNTBBfBiTiNO stamps for marking weights and measures 654 CouMTT Grown Attorney 16, 662 To examine informations 662 To conduct business at sessions 663 CooNTT Gbowx Attobnbt, to watch business at assizes 663 To deliver papers to crown counsel 663 To conduct proceedings before magistrates ., 663 ' To advise magistrates 661 Gosts allowed to , 664 Gases of illness of, provided for 665 Justices and Goroners, to deliver papers to 665 GouNTT Judge may order party committed for trial to be admitted to bail.. 46 CovBT and opening thereof 8 Places where Judges take examinations, not an open 89 When, to be kept open 81 GouBT-HOusKS and gaols, regulations respecting , 291 GouBT of Quarter Sessions, eee General Quarter Sessions 298 Gbeees or rivers, lands divided by, aee Fences 253 Cbimes, responsibility for 470 Threats to accuse of 634 Gbiminal law, the, of Upper Ganada / 128 Gbikimals, extradition of fugitive, from B. N. A. Provinces 249 Extradition of fugitive, from U. S. A 250 Cbubltt to animals ...» 205 Binding sheep 206 Arrest for 206 Commitment on refusing to give name 206 Limitations of actions in oases of 206 Gommitment on default 206 Procedure in oases of 207 Form of conviction in cases of 207 GusTOST, warrant of committal for safe 10 Warrant of commitment of a person already in 5 ' ' D. - ■' ■ Damaqb, malicious, in general 372 n pAoa . 205 5,206 95 .. 119 d 121 .. 121 .. 211 ... 213 10, 616 ... 82 ... 664 16, 662 .... 662 .... 668 .... 663 563 563 564 664 ...... 665 665 bail.. 46 " 89 81 .... 291 '.'..... 298 253 470 634 128 249 250 205 ..... 206 ..... 206 206 206 206 207 1 207 104 66 .... 372 INDEX. 607 PAQl) Dams and Ponds, destroying 870 Over riyers and streams, not deemed obstructions 481 Dead Bodies, offences relating to 210 Interment of, m0 Nuisances 202 Protection of graves of 210 DiATH of Justice granting a warrant of commitment, &o 201 Of informer , 201 Felony not punishable with, bow punishable 827 Punishment of, for forgery, superseded '. 276 Riot a felony, punishable by 478 Of rioter by parties attempting to quell a riot 477 Rape punishable by ; 447 Debbntubbs, forgery of 276, 288 Railway, forgery of... ., 289 DiBTOBS, absconding 667 Decision, two Justices must join in 97 Minute of 19 DBCOTiMa children under ten 129 Declabatiom of voter for school trustee 484 Of voter for school trustee, penalty for false 486 Of school trustee, and fine for not making 489 Deeds, stealing title, see Larceny 848 Deeb, &c., killing 801 Trapping 802 Default, in, of sufficient distress. Justice may commit defendant 93 In, of sufficient distress, imprisonment 109 Of payment, imprisonment 110, 112 Of distress, imprisonment Ill Of sureties, form of commitment in 127 Commitment, set Cruelty to Animals 206 Defesoe, defendant may make full 81 Self, 4ee Assault 146 Of possession, Leading questions 593; Adverse witnesses 693 Cross-examination 693 "What questions witness compelled to answer 694 Impeaching credit of witnesses 694 Commitment of a witness for refusing to give 108 If insufficient, party to be discharged , 47 If sufficient to commit, party to be bailed or committed, according to circumstances 43, 47 If not sufficient, and crime be committed in another division 43 Becognizance to prosecute or give 69 Warrant of commitment of witness, for refusing to give 68 Power of Justices to summons witnesses to appear and give 76 After hearing. Justice to determine the matter 8& In cases of embezzlement 280 Respecting money, incases of embezzlement 237 Refusing to give, in offences against the Excise Act 245 What is, of rape 448 Who competent ^0 give, under the Excise Act 244 Examination of witnesses, as to the 9, 37, 43 May be given in evidence, in certain cases 89 Recognizance of bail, instead of a remand on adjournment of 63 Excise: Interpretation 241 Distilling without: license 241 Name to be on distilleries, &c 241 Brewing without license 241 Neglecting or falsifying entries in books 242 Neglecting accounts, &o 242 Hindering inspection of premises, &o i. 242 Working, without notice 243 Neglect, &c., to furnish means for inspection 243 Search warrant 243 Penalty for neglecting to render accounts 241 Penalties, how recoverable 244 Evidence 244 Evidence, refusing to give 245 Invalid seizures 245 Execution, questions as to, see Assault 149 Exemption, if negatived, need not be moved 86 Expenses of removing prisoner to proper county 44 Ex parte, Justice may proceed, if summons not obeyed 72 Explanations to be made to party accused 89 INDEX. 613 PAGK . 691 .. 691 ,. 692 .. 592 ,.. 59» ... 693 ... 698 ... 694 ... 694 .... 109 .... 47 ing 43, 47 48 69 68 76 85 280 237 245 448 244 37, 43 39 . 63 . 241 . 241 ,. 241 .. 241 .. 242 .. 242 242 .... 243 243 243 244 , 244 ...... 244 245 245 149 86 44 72 39 PAoa ExFLOSiva Substances, inflicting bodily inj; .y by ~ 245 Attempts to inflict bodily injury by 246 Possessing explosive substances with illegal intent 246 Destroying buildings with 246 Attempting to destroy buildings with 247 * Duties of Justices respecting ., 247 By-laws regulating storage of 249 In police villages, regulations respecting ».... 249 Extortion, «e« Distresses for Small Penalties 212 By public officers 444, 447 EzTBADiTioN of fugitive criminals from British North American Provinces 249 Of offenders from the United States 260 E. » Factors pledging goods entrusted to them, tu Embezzlement 227 False accusations, to extort 634 Falss light, maliciously exhibiting a , 876 False personation at elections ^..„ 219 False pretences . -, ^ 166-71 Obtaining alms er cor>v? tii-nsby « o49 On charge of, may I e >• 'ojd of larceny 1*57 What offences are withiu statutes 169 Father of illegitimate children liable for their support 681 Fees, as to payment of clerks' y 97 Penalty for clerks receiving greater, than entitled to 98 What, clerks may demand 98 Receivable by Justices of the Peace or their clerks 203 Not expressly provided for, see Costs 208 Not allowed to Justices or witnesses ia certain cases.. ^ 204 Of fence viewers 258 Fblo de sc! (Self-felon), ste Suicide 530 Felony, attempt to commit, «e« Assault « 149 Misprision of 181 Rescue of party charged with 469 Riot a, punishable by death 478 /See Smuggling 499 Definition of 252 Conviction for misdemeanor on indictment for 414 Females, abduction of, under sixteen 129 Fences, repair of division 262 What constitutes a lawful 252 Division, not to be removed without notice 258 Cost of division 268 Water 268 Where lands divided by a river or creek 268 Ditches and WAtexxCOurses «. » 254 614 INDEX. PAGE Femoks, malioionsly injuring or destroying 871 Viewing of, disbnrsements relating to 258 Bj-Iawa respecting 258 £t cetera, how amount payable by each party for repairs, &o., shall be ascertained 256 To be erected ou bridges and at each side of railways *461-2 TuNOE Viewers to decide disputes 254 Award of, to be in writing 264 Notice of disputes concerning fences to be giren to *. 254 Attendance of, when required 254 Review of award of. 255 Refusal of one party to carry out award of 255 Fees relating to 258 To appraise damage done by cattle... 410 Penalties for neglect by 410 Decision of, against legality of fence, proceedings when 411 Fbbbies, offences relating to 259 Interference with licensed ferrymen 259 Parties may keep boats for their own use 260 Commitment in default 259 Appeal 259 Evidence of title 260 Ferryman, interfering with licensed 259 FiOHT, Challenge to 165 Prlae 423 See Affray 185 FioHTiMO, Cock 171 Fines, time for payment of 15 And forfeitures, recovery of 319 And forfeitures, application of 320 On ministers, for neglecting to return certified lists of marriages ... 880 Fires, &o., provisions relating to 260 In cities, towns and incorporated villages 260 In police villages » 261 Fish, offences relating to 264 Rights of fishermen 264 Period for salmon fishing limited 266 Penalty for violation of act 266 Exception as to fty-fishing 256 Obstructing main channels of rivers 266 Fishways to be attached to dams 266 Killing speckled trout » 267 Certain kinds of, not to be sold in the close season ; 267 i Pound 267 Lime and drugs not to be used to catch 267 Penalties .~.. ...,.»...»...» 267 I »«• ••«•«*••« I INDEX. 615 PAQI Fish, limitations of prosecutions 268 Delay between service and retarn of summons 268 Conyiotion on view 268 Defendant not resident in the province 268 Search 269 Application of fines and forfeitures 269 White-fish 269 Foi'm of complaint 269 Form of summons to defendant 270 Form of subpoena 270 Form of conviction 270 Form of warrant of commitment 271 Fish AND On, offences relating to 262 Penalty on inspector of 262 Fraudulently branding 263 Penalty on inspector trading in 268 Distribution of fine 263 Limitation of time to sue for penalties 268 Imprisonment for non-payment .-.. 263 Recovery of penalties 264 FiSHEBMEN, rights of.. 264 Fishing on the Lord's day prohibited 42^ FisHWATS to bo attached to dams 266 FixTUEEs, stealing, ««« Larceny 351 Flags, ensigns, &c., party at elections, prohibited 222 Forcible entry and detainer 271, 272 Foreign bills, &c., forgery of 281 Enlistment 272,565-7,567-70 Enlistment, information in, form of 570 Enlistment, conviction in cases of, form of '..... 571 Enlistment, commitment in case of, form of.... 571 Forgery, what is Note, 490 Of the great seal 275 Of the Governor's seal-at-arms 275 Of debentures 276, 288, 289 Of letters patent 277 Of transfers of stock ... 277 Of witness's name ,. 278 Of notarial acts, &c 278 See Bills 280 Possession of forged instruments 277 Of passenger tickets, &c 282 Of postage stamps, Sio 282, 415 Forgeries abroad 283 Uttering forged instruments > 284 Of trademarks, &o. ...^.„ 287 616 INDEX. PAOB FoROEBT of seals of division oonrts 288 Of signatures to affidavits 288 Of railway debentures, &c 289 Of railway debentures, &o., venue in oases of 289 Of seals, &c., of superior courts 289 Accessories in 289 Of customs documents 290 Of pawnbrokers' notes 290 Falsely personating bail, &o 279 8 Elizabeth, c. 14 283^ Trial of offenders and accessories in 285 Penalty of death for, superseded 276 Venue in cases of ^ 289 Persons suspected of, how dealt with 430 FoBOBRs of pawnbrokers' notes, suspected, how dealt with 480 FoBOiNQ pawnbrokers' notes, &c 430 Marks, brands, &o., to defraud the customs 497 Stamps, &c., for marking weights and measures 65^ Fost&ge stamps, &c 282, 415 FoBMS : Information aBd complaint for an indictable offence 62 Warrant to apprehend a person charged with an indictable offence . 62 r Sammons to a person charged with an indictable offence 62 Warrant when the summons is disobeyed 63 Information to obtain a search warrant 63 Search warrant 64 Certificate of indictment being found 64 Warrant to apprehend a person indicted 65 Warrant of commitment of a person indicted 66 Warrant to detain a person already in custody, &c 66 Endorsement in backing a warrant 56 Summons to a witness 56 Warrant where a witness has not obeyed a summons 67 Warrant for a witness, in the first instance 57 Warrant of commitment of a witness for refusing to be sworn or give evidence ^ 58 Depositions of witnesses 59 Statement of the accused 69 Recognizance to prosecute or giv« evidence 69 Notice of recognizance to be given to prosecutor and his witness ... 60 Commitment of a witness for refusing to enter into recognizance ... 61 Subsequent order to discharge the witness 62 Warrant remanding a prisoner 62 Recognizance of bail instead of remand, on adjournment of ex- amination 63 '* Notice of recognizance to be given to the accused and his sureties... 63 Certificate ef non-appearance to be endorsed oo recognizance 64 INDEX. 617 PAOI FoBMs: Recognizance of bail 66 Warrant to convey accused before a Justice of th e county in which the offence was committed 64 Receipt to be given to constable by Justice of county in which the offence was committed 65 Notice of recognizance of bail to be given to accused and his bail... 66 Warrant of dbliverance, on bail being given for a person already committed 66 Warrant of commitment 67 Gaoler's receipt to constable for prisoner, and Justice's order thereon 67 Certificate of dismissal of juvenile offenders 833 Conviction of juvenile offenders 336 Conviction for offences committed on the Lord's day 426 Informations for the peace and good behaviour 632 . To be used under the laws relating to spirituoue liquors 626-9 Summary conviction by a recorder or police magistrate 460 Summary conviction upon a plea of guilty 460 Certificate of dismissal 460 Return of convictions 471 Proclamation for rioters to disperse 474 Notice not to furnish certain persons with intoxicating liquors 623 Oath of residence to betaken by aliens 668 Oath of allegiance to be taken by aliens 669 Affidavit of attachment against absconding debtors 657 Warrant of attachment against absconding debtors 658 Commission of the peace 23 Conviction, &c., to be as in schedule 88 Where no special given 89 Schedule of valid 102, 127 In cases of distresses for small penalties 218 Declaration of voters for school Trustees 484, 488 Affirmation of Menonists, Tunkers, &o 687 Certificate of dismissal in cases of juvenile offenders 333 Agreement with pound-keeper by party impounding cattle, &c 498 Conviction in cases of assault 162 Notice to be posted at bridges 321 Oath of qualification of Justices 661 Warrant of commitment under Fishery Act 271 Warrant of commitment under Foreign Enlistment Act 671 Formal conviction or order 12 FoBTUNE-TBLLiNO, how punishable, «ee Vagrants 648 Frauds, Statute of, extended to contracts for goods to be delivered, &c 236 Fravdulbnt Receipts by warehousemen 232 ' Removal of goods distrainabld for rent 214 Fbontikb, outrages on the 674 Governor may order alien to leave the country, when, &o 674 618 INDEX. , PAOB Fbontier, Disobodienoe of saoh order a misdemeanor 676 Disobedienoe, how punishable 675 Governor may issue warrant of removal 675 Provisoes 676 General summary of accusation to be given in writing to alien 576 Alien to have right of defence 576 Alien may be bailed by a judge of any superior court 577 Procedure when alien not sent out of province within specified time 577 Aliens under 14 years of age not affected by this act 577 Aliens five years resident in this province 577 Aliens fitting out expeditions, raids, &c., punishment of 577 Seizure of vessels freighted with munitions of war 578 Seizure of vessels, vehicles, &o., passing frontier 578 Officer seizing, afterwards to obtain warrant justifying detention ... 579 Owner or claimant of such property to file petition 880-2 Superior, circuit and county courts, have full jurisdiction 580 Where petition not granted, property may be restored on security for double the value being given that it will not be used illegally 580 Venue in cases under this act ■ 581 Warrant to search for and seize munitions of war, &o., may be issued on information on oath 581 Persons executing warrant may force entrance into houses^ &c., if denied .'. ... 581 Nothing in this act to interfere with law respecting writ of Babeaa Corpus „ 582 <' Arms," meaning of term 582 ♦• Munitions of war," signification of 582 Act to remain in force one year 583 FcaiTivE Criminals, Extradition of, from the British N. A. Provinces 249 From the United States 260 a. GAMBLiNa, municipalities may pass by-laws against 297 Games and amusements on the Lord's day prohibited 424 Game-Laws, offences against the 801 Punishment of offences against the 808 Killing deer 301 Turkeys, grouse, &c 301 Quail 802 Woodcock , 802 Trapping wild-fowl 802 Trapping deer 302 Having game in possession during the dose season 302 Eggs not to be taken 302 Confiscated game..., » 803 Traps, &o., may be destroyed 303 INDEX. 619 PAoa Game-laws, beaTer, musk-rat, &o 308 Destruction of insectiyorous birds prohibited 808 Penalties 804 Oamino 296 Penalty for making lotteries 296 Baying tickets, &o 296 Sales, &c., void 296 Purchaser without notice 296 Committal for non-payment of penalties 296 Foreign lotteries 297 Interpretation 297 Appeals 297 Division of property in common ... « 297 By-laws against 297 5ee Vagrants 549 Gaols, &c., regulations respecting 291-6 And court-houses 291 Who to have the custody of 296 Gaoler's receipt to constable for prisoner 67 Penalty may be paid, to 99 To pay penalty to clerk 99 To keep an account of all moneys received by him 100 Gas-Wobks, aee Nuisances 892 Gatks, &o., prostrating 870 Gate-Eeepers not compellable to give change for more than one dollar 312 Geese, swans, ducks, &c., time for killing 802 General, Attorney, consent of, to indictment for embezzlement 281 General form of information upon oath 128 Form of notice of appeal against a conviction 124 General Quarter Sessions of the Peace, the Court of 298 Summonsing the Court of 298 Former commissions and courts confirmed 299 Outlawry 299 When Courts to be held 299 Whore Courts to be held.- 299 Chairman 299 Attending orders of Court SOO Jurisdiction of Court <.. 800 Audit of county expenses 300 Good Behaviour, sureties of the peace and 681 Goods, Justice may commit where no 32 Fraudulent removal of, distrainable for rent 214 Maliciously destroying 868 Governor may declare Riot Act in force near public works 478 Governor's Seal-at- Arms, forging of the • 275 Grain, assaulting persons dealing in, tee Assault 149 Standard weights of different kinds of..... 558 620 INDEX. '' PAOB Grates, protection of 210 Great Senl, forging of 275 Qdests at an inn, «ee Larceny 844 Guns, fire-arms, &o., diaoharging of, «M Naisances 892 Gunpowder, cities, &c., may pass by-laws regulating storage of 249 Regulations respecting the sale of, in polioo Tillages 249 Gun or Pistol, presenting loaded 145 - ■ a. • Habeas Corpus 80, 582 Handcuffinq prisoner 191 Harbours, &c., municipalities may pass by-laws for regulation of 305 Hard labour 11 Sentence to penitentiary to include ■ 806 '< The court may order 306 May be imposed by Justices 306 Hawkers, auctioneers, &c., licensing of 35G Health, public 435-7 Officers, councils of municipalities to be 487 Officers may enter and examine premises 435 Hrarxnq, proceedings on 84 May be adjourned 87 May proceed in absence of either party 88 Directions as to 7 Warrant of committal during adjournment of the 104 Hearsay, ««e ETidence 691 Heiress, abduction of, in Upper Canada •• 128 High constable 190 High treason, outlawry in 396 Highways, offences relating to 807 What is a highway 807 Use of public roads in cities and towns 807 The corporation to repair, &c 807 Neglect 808 Tolls, how fixed, &o 808 Tolls, when to be collected 808 Tolls, limitation of 808 Tolls, rate of '. 309 Tolls, extra 309 Tolls on bridges 309 Tolls, when mail coaches, &c., to pay 814 .-'I Tolls not to be collected till repairs made 311 Tolls, taking more than proper 312 Tolls, exemptions from 812 Tolls, persons going to and returning from diTine serTice free from, 812 Tolls, Tehioles laden with manure free from, with certain exceptions, 814 Tolls, how payment of, enforced 315 INDEX. 621 PAOI HiaiiWATs, Tolls, penalty for non-payment of. 816 Tolls, sale of things seized for 316 Tolls, avoiding payment of 816 Tolls, penalty for allowing persons to pass through lands to avoid* payment of 816 Tolls, penalty for leaving horses on the road to avoid payment of... 816 Tolls, penalty on persons falsely claiming exemption from 816 Tolls, check-gates, &c 810 Roads intersecting 809 Vehicles crossing a road 810, 818 Company to repair road 810 Engineer to examine the road 810 Notice to repair 811 Penalty for not repairing 812, 828 As to money change 812 Cattle, &o., crossing road 813 Loaded vehicles 821 Act not to apply to bridges 314 Mail coaches 814 X Aa to roads leased before June 14th, 1853. 314 Penalty on persons injuring roads, &c 31G-8 . Company not to impede graded portions of road 318 Application of penalties 819 Recovering of fines and forfeitures 319 Arrest of party not appearing 319 Application of fines, &o • ... 820 Limitation of actions 820 Officers, &c. , may be witnesses 320 Carriages meeting on highways t 320 Carriages overtaken 320 Carriage, penalty if driver of, intoxicated 321 Racing forbidden 321 Sleigh horses to have bells 321 Notice to be posted at bridges.. 321 Penalty on persons defacing such notice 321 Fast driving over bridges 321, 823 General penalties 322 Statute labour 322 Pits and precipices 323 In cities, townships, towns, and incorporated villages 323 . General power of counties respecting 323 Certain powers of Justices in Sessions transferred 324 Railways not to pass along 461 IIow railways may cross 461 HoMiciT>K, classified 825 Justifiable 326 i Summons to defendant on an 1.0P. Warrant of distress for costs, upon an order for dismissal of an, <>r complaint , ll'j General form of, upon oath 123 Form of order of dismissal of, or complaint i23 Infobmbr, death of the 201 Injuries, malicious 3C4, 874 Municipalities may pass by-laws against malicious, to timber-sUt'r;^', dams, &o ... 6?7 Inns, disorderly, ««e Nuisances i^M And innkeepers 329 What is an inn ! 129 Tavern keepers and emigrants, list of prices 2':1') Tavern-keepers to have no lien on effects of emigrants for more than five dollars 330 Where prosecutions s^all be brought 3.^0 No appeal 331 Taverns, &o., officers or constables may enter when authorizj J n?A Innkeepers, &c., liability of, in oases of assault by, or death of drunSurd 521 Not to sell intoxicating liquors to certain parties when notified to thateffect .... 622-K And inns , 829 Inoculation, penalty against ., 331 Insane Prisoners, enquiry as to, «e«LunaU?s ..,. 359-60 Insolvency or bankruptcy 149 Inspection of premises for purposes of excise, aee Excise 242 Inspectors of Police, &o., powers of 49 £t cetera, may act alone lUO Obstructing railway, how punishable < ..••' 467 Of weights and measures, municipalities may appoint 656 Of weights and measures, duties of 653, 656 ; 624 INDEX. PAaK Interment of dead bodies 210 Intoxioatinq liquors, municipal councils may prohibit the sale of 610 Intoxioation of railway engineers or conductors, a misdemeanor 466 Invoices, using false, with intention to defraud the revenue 494 J. Joint Tenants, ««« Larceny 842 Jurisdiction in cases for embezzlement 231 Of Justices respecting explosive substances 267 Of Justices in municipalities 831 JcBORs' Fund, fines to form 809 JuRT, appeals triable by '36 Justice of the Peace, office of «. 2 Two classes of : 1. By commission 2 2. By virtue of holding some other office 2 Meaning of the term « 2 Powers and duties of 2-6, 27, 69 Qualification of 4, 661 Protection of 21 Liability of 20 Not punishable for errors of judgment 20 Liable to actions 21 Interested 17 Interference with each other 11 Fees receivable by, or their clerks 203 Who are, by virtue of their office 832 Qualification of, in cities 382 Jurisdiction of, in cities 832 Penalty on 662 Limitation of actions against 662 Fines and penalties in actions against, to whom paid 663 Justice's Court, ace Procedure of a Magistrate's Court 6 Justices may summon witnesses 36 May remand accused 41 Signature to depositions ..10, 88 Majority should decide 10 Gaoler's receipt to constable and justice's order, &;c 67 To administer oath or affirmation 88 To bind over prosecutor and witnesses 40 To caution accused as to any statement ho may make 88 To subscribe to recognizance 40 To furnish constable with a receipt or certificate 45 In case of misdemeanor, one may bail 46 Receipt to be given to constable hy, for county in which the offonoe was committed , ^ 65 May issue summons when information laid 69 INDEX. 625 /■♦ PAOB JosTiCES may issue warrant if summons not obeyed 71 Not obliged in certain oanes to give summons 70 Miiy proceed tx parte if siunmons not obeyed 72 ^Vht>n, may issue his warrant in first instance 72 May convict party if he admit ttie truth ^ 84 After hearing evidence, to determine the matter 85 Mny adjourn hearing of any case, &o 87 One, may receive information and issue summons in all cases 97 One, may compel witness to attend, and issue distress warrant 97 Acting before or after conviction need not be a convicting Justice... 97 To issue warrant of distress in cases where pecuniary penalty, &o.. 91 May commit, where no goods < 92 May commit, in default of sufficient distress 93 Death of, granting a warrant of commitment, &o 201 Costs of, where complaint is dismissed 205 In case of felony, two may bail, if evidence not sufficient to commit 46 Duty oft when party committed wishes to be bailed 50 Coroners and, penalty on 51 Power of, to summon witnesses to attend and give evidence 76 f Wlien two or more ar.e required to act, must be present together during bearing of case ■, 97 JcvEMiLE Offenders, persona of not more than sixteen years of age, &c., may b« summarily convicted 833 Justices may dismiss ocrpl.tlut in certain cases 333 Form of certificate of dismissal 833 Release of party obtaining certificate 834 Case may be sent for trial if Justices thinlc fit 834 Justices to give person charged the option of trial by jury 334 Justices may hear and determine 386 Compelling appearance 385 One Justice may remand or talce bail 835 Condition of recognizance 335 Rccogni'iinoe may be enlarged 335 Application of fines 335 Attendance of witneesec 336 Form of conviction 836 Conviction not to be quashed for defect of form 337 Conviction to be sent to clerks of the peace 887 No forfeiture, restitution 837 If property is not forthcoming 837 Recovery of penalties 838 Committal for non-payment 338 Expenses of prosecution, how to be paid 338 If there bo no eonviction 839 Amount of expenses, bow a.scertniued and certified 839 40 626 mut^it. PAOS JcvBNiLE Offenders: Orders of payment, how to be made, and upon whom 839 Protection of persons acting under this act 839 K. Feepinq the Peace at elections 220 L. Land divided by rivers or creeks, see Fences 253 Penalty for fraudulently conveying, in order to give a vote at elections 220 Landlord and Tenant 213 Landmarks, removing or defacing 374 Laroent, if oflFence amounts to, party mny be acquitted of misdemeanor .. 231 On indictment for embezzlement, party may be convicted of 236 On indictment for, party may bo convicted of embezzlement 236 Party indicted for, may be convicted of false pretences 167 Definition of term 340 Of the taking 340 The taking most be felonious 341 Taking under a claim of right 341 Lost property 342 What property is the subject of larceny 842 Joint tenants 842 Husband and wife 342 A man may steal his own goods 342 Special ownership 843 The taking must be against the will of the owner 243 Of the absolute ownership of goods 344 Where the owner parts with the custody only 344 Servants 344 Quests at an inn 344 Where tho owner parts with the possession but not with the property 346 Where possession is obtained by fi'aud 345 Where possession is obtained without fraud by a trespass 845 Breaking bulk 345 'Where the owner parts with both the property and the possession... 346 Of the intent 846 'Simple, how punishable 847 Horse-stealing and cattle-stealing 847 Stealing securities ° 847 Stealing wills 848 Stealing title-deeds 848 Stealing or fraudulently taking records, &c 349 Stealing from vessels wrecked, &o 349 Stealing railway tickets, &c 851 Stealing domestic animals 351 Stealing parts of buildings, fixtures, &c 351 im>EX. 627 VAon {jXroekt : Stealing trees, sbrubs, vegetables, &c 3-32 By clerks and servants ^ 353 By bailees , ■ 354 Restoration of stolen goods ,.>.... 354 When restitution not to be made 354 Advertising for stolen property 354 Recorders and police magistrates may try certain cases of 452 TjAW, reservation of points of » 405 The criminal, of Upper Canada 128 Formal 4 Leading Questions, «c Evidence , 692 Cettefs Patent, forgery of ............... 277 Demanding money or goods, by threatening 534 Stealing 414 Opening , 486 Etcetera, enclosing in newspapers ... 416 fiETTBR Bags, opening 4I4 Stealing from 414 Ltability of Justices 20 LiOENS^, Justices may, private lunatic asylumns 362 Distilling without 241 Liquors in the original packages, may be sold without 504 Notice of, to be placed over doors of taverns, &c 504 Of disorderly inns, may be suspended or annulled 505 Transfer of 604 Penalty or imprisonment for selling liquor without 525 Licenses, shows, &o 365 Billiard-tables 356 Victualling-houses , 356 Auctioneers, hawkers, &c 356 To sell liquor, police commissioners in cities may grant 502 Penalty for issuing contrary to law 503-4 Municipal councils may prohibit the issue tif 610 Light, maliciously exhibiting a false 367 Limitation of actions against Justices 357 Notice of action 357 As to summary proceedings 357 Of actions and prosecutions 357 Liquors, police commissioners in cities to grant licenses to sell 602 Spirituous, with respect to the sale of 502-620 List of prices to be posted in taverns, &c., frequented by emigrants 329 Lock-up Houses 292 Lost Property, «fe Larceny 342 Lotteries, penalty for m4 Exhibiting a false light 367 Destroying parts of ships in distress 867 Destroying plants, hop-binds, &o 868 Maiming cattle 868 Destroying goods 868 Destroying machinery 869 Breaking down the banks of canals, &o 569 INDEX. 629 PASO Malicious Mischief: Destroying bridges 870 Prostrating gates, &o 870 Destroying ponds and dams > 871 Destroying trees, plants, fruits, and vegetables. 871 Destroying fences 871 Malicious damage in general 872 Injuring or obstructing raiWays, &o ... 872 , Enforcement of penalties 873 Discharge of offender , 878 Removing or defacing landmarks 374 Destroying toll-gates 874 By-laws against malicious injuries 374 Malicious injuries to timber-slides, dams, &e 687 Manslaughter, tee Railways 467 See Homicide 826 Definition of 864 ^€6 Murder 888 Punishment for » 394 Manure, vehicles drawing, free from toll 313 Marriaoe, solemniEation of i 879 Minister of any denomination may solemnize 879 Minister not to solemnize unless authorised by license or after pub- lication of banns 879 No valid objection that it was not solemnized in a church or chapel.. 379 Minister to enter marriage in a book, and make return 879 In case of death of minister, successor to make return SSq Fines for neglecting to return certified list of 880 Markets, municipalities may pass by-laws regulating 875 Maskinonoe and other fish, time for catching 267 Masters, complaints against, by apprentices 883 Complaints by, against apprentices 883 Maste&s AND Servants, offences by 572 Voluntary contract between ..< 572 Verbal or written agreement between 572 Persons leaving employment 573 Limit of fines or imprisonment..^ 573 Commitment in default 573 Where trial may take place .^ 573 Non-payment of wages ^ , 574 Meaning of certain words 14 Measures, using unlawful weights and > 552 Mbdioal Practitoners, penalty on for inoculating 831 Meetings, «fe Public Meetings 439-43 Memory, witness may refresh his, by referring to written instruments, &c. 592 Military exercise or evolutions, illegally drilling to the practice of m 216 Or volunteer force may be called out to quell a riot 476 C3(> INDEX. TAOft MiuTART expeditions, raids, &o., to foreign states, engaging in » 677 Militia, clat^slfication of the 88i) Exemptions ^ » » 881 Military divisions ..^« >.......» 881 Enrolment „....^ 88) Calling out the 88) Justice of the Peace required i» billet 381 Billeting allowance 381 No Justice, being an officer, to billet troops 381 Penalties, how recoverable .»....„ 382' Bonds to the crown 882 Volunteer militia „ , 882 Uniform , «..„ .» 382 Volunteers destroying property »... 382 Persons buying or having iu their possession arms of 883 Damaging targets, butts, &c '. ^ 383 Mill Bams, millers to construct aprons to their 376 '■'■*. Construction of aprons .....^ » 376 : Penalties ~ ...^.. 377 In specific places 377 River Moira, aprons to dams on the 378 MiNisTEBS of any denomination may solemnize marriage 37^ Not to solemnize marriage unless authorized by license, &o 379- To enter marriages in a book, and make return 379< In case of death of, successor to make return.. 380 To be fined for neglecting to return a certified list of marriages 380 Mink, beaver, muskrat, &o., when not to be taken.. 303 MiNOBS AND Apprentices: Definition of apprentice.. >. , 38$ Complaints by apprentices against masters 383' 'Jomplaints by masters against apprentices. ..>. 383 Apprentice deserting bis master's employment 884 How complaints may be heard ^ 884) Limitation of proceedings 884 Penalty for harbouring abscoBding apprentice.. .....> 385 Appeal „ 385 Jurisdiction ^..^ 385 Application of fines 38& BIiMUTE of decision... 10 Of conviction to be made < 86 Misadventure, ste Manslaughter 36& See Homicide 326 Misdemeanor, abettors in 184 Definition of 385^ Defendant not allowed to postpone trial by imparlance 386 Time may be allowed on cause shewn 386. Traverse abolished »..^ » 886> INDEX. 631 PAQB MiSDBMKANOR, Delay of trial 886 Rescue of party ohnrged with 469 Vexatious indictments for ^46 Misprision of felony 181 MoNKT, order for the payment of, to be levied by distress HI Order for the payment of, and in default imprisonment 112 Warrant of distress upon an order for the payment of 105 Clerks and gaolers to keep an account of, received by them 100 Evidence respecting, in cases of embezzlement.. 287 Et cetera, stealing from the post-office 414 MoBAiiS, public, offences against 487 Mother of illegitimate children to make affidavit in certain cases 581 Municipal Act, false declarations under the 401 Officers, embezzlement, &c., of books, documents, &c., by 283 Officers, offences against by-laws by 164 Election, stealing, &o., writs of 224 Councils of townships may pass by-laws for licensing taverns, &c.... 603 Councils may prohibit sale of intoxicating liquors by by-law 610 Munitions of war intended for military operations in foreign countries, «ee Outrages on the Frontier 577 Murder, definition of 887 Punishment of persons guilty of. 388 Poisoning, &o., with intent to commit 388 Feloniously attempting to commit 388 Rescue of murderer 388 Rescue of party convicted of 470 See Homicide 825 See Manslaughter 365 Conviction for concealment of birth, on indictment for 183 MusKRATS, beaver, mink, &o., when not to be taken 303 Mutiny 387 N. Name, commitment on refusal to give, tee Cruelty to Animals 206 Naturalization, certificate of, to be given to aliens 660 Natiqation, railways not to impede '. 468 Noises, 4ee Nuisances 392 Non-appearance, certificate of, to be endorsed on recognizance 64, 106 In cases of outlawry 896 Non-feasance by public officers 444 Non-payment of costs, if party imprisoned for, in certain cases 96 Of wages, see Masters and Servants 576 Notarial Acts, forgeryof 278 Notice of recognizance to be given to prosecutor and his witn 60, 106 Of recognizunce to be given to accused and his sureties 63: 632 INDEX. FAQB NoTiOK of recognizaooe to be giveD to accused and his bail 66 Of recognizance to be given to defendant (appellant) and his sureties 125 Of appeal against a conviction, general form of 124 Of recognizance, form of, to be given to defendant 126 To be posted at bridges 821 Penalty for defacing, posted ut bridges 821 NuiSANCRS, what are 889 Disorderly inns , 890 Bawdy house or other disorderly bouse 890 Municipal councils may pass by-laws to suppress tippling houses, &c. 891 Mischievous dogs 891 Municipalities may pass by-laws for preventing certain 892 ' O. Oath: Meaning of the word 403 Justices may administer, or affirmation 88 Complaint or information must be made upon 80 General form of information upon 128 Of constable 185, 186 Of residence, to be taken by aliens desirous of being naturalized 658 Of allegiance, to be taken by aliens desirous of being naturalized... 659 Of Justice, as to property qualification 661 Children capable of distinguishing between good and evil may be examined upon 387 Affirmation to be taken by Quakers, &c., in place of an 687 Objection, none allowed for want of form 31, 71, 74 Observations, complainant or defendant not to make, &c 85 Obstructions to rivers, streams, &c., see Rivers and Streams ....'. 481 Offence, how to be described, «e« Conviction 200 Imprisonment, when to commence, for subsequent 94 Information and complaint for an 62 Offences, indictable.. 9 Warrant to apprehend a person charged with 62 Certain, not bailable except, &o 46 Attempts to commit , 162 Relating to coins 172 Compounding 181 Relating to dead bodies 210 ^Offenders caught in the act 139 From the United States, extradition of 250 Juvenile ' 833 Discharge of, in prosecutions for malicious injuries 373 Office of constable .' 190 Constable's oath of 185 'Officers, offences by , 444-6 May be witnesses in actions respecting highways 820 INDEX. 633 FAQK Oit, fish, and offences relnting to 862-4 Open Court, place where Jastices take examinations not an, In certain oases 89 Place where Justices ta]ance , 444 Non-feasance 444 Extortion 444, 447 Assessors 445 Trustee of police villages 446 Revenue officers 446 Division court officers, miscondact of. 446 Public Works. Governor may declare Riot i.ct in force near 478 Sale of liquor near, prohibited 505 Public Worship, disturbance of 216 Punishment: Conviction, when the, is by hard labour 11 Conviction, when the, is by imprisonment 110 Q. Quail, time for killing 882 Quakers, Tunkers, &c., affirmation by 587 Qualification of justices 4, 561 Property qualification > 661 Oath as to property qualification 561 Certificate of oath of qualification 561 Penalty on justice for acting without being qualified 562 Limitations of actions 562 Penalties to bo paid to Reoeiver-Qeneral 562 PAQB ... 439 .... 489 .... 439 .... 440 . ... 440 .... 441 441 441 441 442 442 442 442 443 443 443 443 .'. 443 444 437 , 437 438 ' 444 444 '.' 444 ...444, 447 446 '". 446 '. 446 "' 446 .'. 478 "' 505 216 11 110 382 587 ....4, 661 661 561 661 662 , 602 662 INDEX. 641 PAQB Quarter Session of the Peace, see General Quarter Session? 298 Appeals from Recorder's Court, and 138 County crown attorneys to conduct business at >.... 563 Questions, what, witness not bound to answer 594 Leading, see Evidence 592 Questions of Law, reservation of 405 E. Racing on highways, prohibited 821 Raids, military expeditions, &c., from Canada against any foreign country, a misdemeanor. 577 Railway debentures, &o., forging of 289 Injuring or obstructing 372 Cars, &c., when required for the use of troops 382 Railways, oflFences relating to 461 Not to be carried along highways 461 How, may cross highways 461 "VVbero they cross highways on a level, to have signboards 461 Fences to be erected along the sides of. 462 Walking, riding, &c., along, prohibited 462 Obstructing, punishment for 462 Damaging 462, 467 Not to impede navigation 466 Fines, how recoverable and applicable 463 Commitment 463 Appeal 464 Offence to be a misdemeanor 464 Checks on parcels 464 Baggage cars not to be in rear of pass«;nger cars 464 Engine to have bell, which must be rung at certain places 465 Intoxication of engineer or conductor, a misdemeanor 465 Railway ground to be kept in order 465 Trains, when passing through cities 466 Cattle, leaving, at large 466 Cattle may be impounded 466 If by wilful injury to railway any one be killed, offence to be man- slaughter 467 Committing injuries, stoppage, &c., how punishable 467 Obstructing inspectors 467 Contravention of by-laws, &c., by officers 468 Company may impose fine for contravention of bj laws 468 Rape, taking the life of party attempting, justifiable homicide 325 Punishable by death 447 Defined ...^ 447 Witness, party ravished an admissible 448 Must be against the will of the fimalo 448 41 h^y C42 INDEX. PAGE Rape, to force a prostitute or concubine, is a 448 Cannot be committed by a man upon his own vife 448 Evidence of what is a 44P Assault with intent to commit .,, 161 Throats to accuse of an assault to commit ... 635 Recript to constable by justice receiving prisoners from another division or county 66 Gaoler's, for prisoner and justice's order, &c 67 Receipts, fraudulent by warehousemen 232 RECBifiNQ articles stolen from post, letters, &c 416 Stolen goods 449 When a misdemeanor 449 Wheu felony 449 Puiiisbmeut for , 450 Venue in cases for 450 Recognizance, to appear 13 Justices to bind over prosecutor and witnesses by 49 To be subscribed by justices 40 To be transmitted to the court in which trial is had 40 Witness refusing to enter into, may be committed 41 Justice may transmit to clerk of the peace 42 •Commitment of witness for refusing to enter into 61 Certificate of non-appearance to be endorsed on 64 Of bail, on an adjournment of examination 63 Of bail 65 To prosecute or give evidence 69 Notice of, to prosecutor and his witness 60 Notice of, to be given to accused and his sureties 63 Notice of, to be given to accused and his bail 60 Where a defendant is discharged on, and fails to appear 76 V In Upper Canada to be sent to the clerk of the peace , 79 To prosecute indictment, note 29 -In certain cases, to be certified by clerk of the peace 93 For appearance of defendant when case adjourned 105 Form of, to try the appeal, &c 125 Form of notice of, to be given to defendants and sureties 125 Form of, for the sessions 126 Tarty entering into, to be liberated. 136 To give evidence, who may be bound by 585 Estreat of (see Estreat, 238) 583 Condition of, in case of juvenile offenders 335 In case of juvenile offenders, may be enlarged 330 Certificate of non-appearance endorsed on back of, and then for- * warded tc clerk of the ppace 83 ■'; ': Entry in book with consent of witnesses, is sufficient at the time for recognizance 583 INDEX. 643 PAQB RscoeNiZANCB, all crown witnesses to enter into 683 To be made out and served on witness afterwards 683 Who to enter into, for married women and children 683 In case of refusal of accomplice to obtain sureties to give evidence, he may be committed 584 In case of foreign enlistment, proceedings may be had against wit- nesses as well as oflFenders. 684 In cases of appeal against conviction for offence against laws relat- ing to spirituous liquors 637 To keep the peace, or for good behaviour, form of 533 Should be fiir a stated time 632 Rgoordbrs' Courts and PoLTdB Maoistbatks 451 Jurisdiction of Recorders' Courts 451 Recorders and police magistrates to be Justices of the Peace 451 Clerk of police 451 Time for holding recorders' courts 452 Costs 462 Expenses of recorders' courts 452 Recorder may, by consent of accused, dispose of cases in a sum- mary way 453 Pleading 453 Punishment 454, 456 When summary trial not to be granted 454 Larcenies over one dollar 454 Pica of guilty 455 Defence 455 Compelling attendance 455 Service of summons 456 Remand of accused 457 Conviction, return of 458 Conviction, copy of 458 Conviction, effect of 450 Conviction, form of 460 Upon a plea oi guilty, form of 460 No sentence or proceeding void for want of form, &c 459 Restitution 458 Open court , - 458 Duties of Justices not affected 458 Dii^missal 454 Dismissal, certificate of 459 Dismissr8, &c., to make proclamation during riot 474 If rioters do not disperse, bow dealt with 476 The military or volunteer force may be called out if necessary 476 How volunteers may be called out 476 Suppressing riot ; death of rioter , 477 Opposing pence oflBcers and others suppressing riot 477 Limitation of time for prosecution 477 Governor may declare Riot Act in force near public works 478 Possessing arms or weapons 478 Delivery of 479 Restitution 679 Seizure of 479 Penalty for concealing 479 Arrest of persons carrying 480 RiVEa Moira, aprons to dams on the 378 Rivers or creeks, land divided by, ««« Fences 253 And streams, offences relating to : — Floating timber 480 Obstructing rivers ' 481 Dams, &c., used as bridges, not obstructions 481 Where salmon, &o., do not abound, not included 481 As to obstruction? not wilful ■■* 481 Fines, bow to be recovered 481 Township councils may pass by-laws against obstructions to streams, &o 482 Roads, Public, see Highways ^ 307 Use of, in cities and towns 307 Corporation to keep in repair ..^ 307, 310 Intersecting . IMAGE EVALUATION TEST TARGET (MT-3) /, ^ >i .^I^ '^A 4^ 1.0 ^UilSi ■^ Uii 12.2 1.1 iv^"^" HiotDgFaphic Sciences CapOTation r<\^ \ ••>.. 656 •• ••• Ootj 470 802 294 >•••.. 216 '••••• 0^*7 ■ • •••