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Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle supdrieur ga'iche, de gauche d droite, et de haut en bas, en prenai't l«> nombre d'images n^cessaire. Les diagrammes suivants illustrent la mdthode. 32X 1 2 3 4 5 6 1 Fi 7 9 V - -^ THE MAGISTRATE'S ACTS OF 1869 -A.NN OX AXED FOR THE USE OF MAGISTRATES WITH FORMS, PRECEDENTS AND AN INTRODUCTION TO THE LAW OF EVIDENCE. BY WM. H. KERR, ESQ. BAUH19TER-AT-LAW. <*»■ — DAWSON BROTHERS, PUBLISHERS. 1871 BiBLfOTHEQUE UNIVERSITE D£ SHFRBRCOKE i^ntorcd according; to Act of the Parliament of Canada, in the year 1870, by Dawsox Brothers, in the Office of the Minister of Agriculture. LOUIS PERRAULT & CO., PRINTERS, 232 ST. JAMES ST TO CIIiVI?X.P:S J. COURSOL. Esq.. JUDGE OF THE SESSIONS OF THK PEACE FOR THE CITY OF MONTRBAL, THIS VOLUME IS INSCRIBED, AS- A TOKEN OP RESPECT FOR HIS KNOWLEDGE OF CRIMINAL LAW, ' IWi i M lilP H i ' I PREFACE. The difficulty experienced by Magistratos in the country parts of the Dominion, in obtaining any work treating specially of their duties, has long been known to the members of the Bar. Within the past thirty years, a few books have been published with the idea of obviating the difficulty, but so many alterations have been made by recent statutes in the law as it existed at the time of such publications, that but little apology is needed for the appearance of this work. In annotating the sections of the different statutes now in force, the writer has striven to collect from the English works every thing that seemed likely to be of use, and he has not hesitated to embody in this volume, the observations of the different authors, when they seemed to him appropriate to th2 treatment of the subject under consideration. He has t largely made use of" The Practice of Magistrates' Courts," by T. W. Saunders, Esq., "The Magisterial Synopsis," and " The Magisterial Formulist," by George C. Okc, Esq. To the latter gentleman's works he has been greatly indebted, and trusts that he will be pardoned for having brought Mr. Okc ;is an authority of great weight before the Canadian Public. After that portion of the work treating of Summary Con- victions and orders had gone through the press, an Act in amendment of the law as it then existed, was passed by the Dominion Parliament and it became necessary to note tl c changes thereby made. The amending Act will be found in TT" tI PREFACE. the Addenda pp. 381-388. The changes thereby effected are chiefly with regard to appeals and are commented on at pp. 387, 388. In the Addenda will also be found the clauses of the Statutes of the different Provinces, having reference to the duties of Magistrates, saved from repeal by Schedule B of 32 & 33 Vic. c. 36. To furnish the law as it exists, with the necessary forms, and such simple instructions as will prevent Magistrates from doing injustice to others and from bringing themselves into difficulty, has been the object of the writer. He trusts that he has at least succeeded in producing a work which may be of some benefit to those for whom it was specially written. TABLE OF CONTENTS. Justices of the Peace and how appointed. . 1-7 Nature OF TiiETR DUTIES 7-8 Jurisdiction AS to locality, interest, &c.... 8-14 Evidence before Justices of the Peace 14-36 Jurisdiction of the Quarter Sessions 36-53 *' An Act (32 & 33 Vic, c, 30) respecting the duties of Justices of the Peace out of Sessions in relation to persons charged WITH indictable OEFENCES," WITH NOTES AND FORMS , 52-142 "An Act (32 d- 33 Vic, c. 31) respecting the DUTIES OF Justices of the Peace out of Sessions, in relation to summary con- victions AND ORDERS," WITH NOTES AND FORJis 143-293 " An Act (32 & 33 Vic c 32) respecting the PR03IPT AND SUMMARY ADMINISTRATION OF Criminal Justice IN CERTAIN cases," with NOTES 194-314 " An Act (32 & 33 Vic 33) respecting the TRIAL AND PUNISHMENT OF JUVENILE OF- FENDERS," with notes and forms 315-330 " An Act (32 & 33 Vic, c. 34) respecting Ju- venile offenders within the Province of Quebec" 331-335 Vlll TAULE OF CONTENTS. {'■ " An Act (32 k 33 Vic. c. 35) for the more SPEEDY TRIAL, IN CERTAIN CASES, OF PER- SONS CHARGED WITH FKLONIES AND MISDE- MEANORS, IN THE Provinces of Ontario AND Quebec," with notes and forms 33G-34() " An Act (32 k 33 Vie. c. 3(5) rkspectino the Criminal Law, and to repeal certain enactments therein contained" 347-3G8 ADDENDA. Sections OF Statutes preserved from repeal BY Schedule B. 32 c^ 33 Vic. c. 30 3Gl>-380 Consolidated Statutes of Canada 309-37(5 Revised Statutes of Nova Scoiia 377 Revised Statutes of New Bhunswick 378-379 Statutes OF New Brunswick 370-380 '' An Act (33 Vic. c. 27 iTO a.mendthe Act res- pecting the duties of Justices of the Peace out of Session.s in relation to Summary Convictions and Orders," with Notes 381-388 f, INDEX OF CASES. A AcUioyd, Dott /• 200 Atl'lis, exj'iirtf -17 Adtlisdii, L;il)!ilm()ii(U('rc, v. 152 A. ti. V. SlihU'}' 1H8 Ali-ion V. Furnival 29 Al!i.-'(in cxjKirte 18."» Allrn, l{..t' 200, 235 Askew, K, (• 192 Anstcii. 11. ;■ 187 B JiailvV i\: ill., re 235 Uarnanl o. GosliiiLr 195 IJarkci, U. t' 200 liarkfr Uiiiii'huad i 20, 21 Bartk'tt, II. v 18 Banu'S v. White 210 IJasten V. Cai-ew 200 Beare, K. v 191 r.ell, Peacock v 14 Bedder's case 19 Bell, H. V 191 I'.ellamy, 11. y 146 r.eiuiiiiKi'uld, Dowell ,: 146 Berkeley, B. v 235 Bessell v. Wilson 157 Blackburn, Mayor of, Par- kinson V 152 P.leasdale, ll.v 190 Bolton, Pi. i- IG, 235 Borron, U. v 243 Borrow, II. »• 83 Boultbee, \\. v 235 Bott i>. Ackroyd 200 Boycs, Pi. /'.. 18 Braciy'.s case; 11 Pireaeii, Sanilinian, y : 149 IWiekliall, 11. V 15.'-) lirooke, Kin. Ireson 18 Caudle y. Seymour 148 Ciiandler, 11. v 152, 187 Ciiandler y Horn 181 Chanev v. Payne 188, 200 ChaneV, 11 V 200 Charter v. Graem & al.. 187, 200 Chayeney, R. c 188 Cheere, \\. r 188, 189 Clark k al., K. /• 195 Clarke, K. c 192 Clenison, Taylor v 153 Cohen ?■. Morgan 77 Cole v. Coulton )4S Coleridge, Cox v 83 INDEX OF CASES. :it if! Collier v. Hicks 83 Collins Hopwood 195 Colt, Dalton v 20 Gomrs. Cheltenham, R. v.... 235 Constable, R. r., , 148 Cook V. Nethercofcc 181 Cook V. Swift 192 Cookson & al., Gmy v.. 150, 200 Corben, R. v 14 Coster y. Nilson 16 Coulton, Cole v 148 Cox V. Coleridge 83 Cripps V. Burden 1,51, 194 Crisp, R, V 186 Crofts, R. V 149 Cropper v Hortoc 77 Ci'oss, exparte 216 Cross, R. v 186 Cruse, R. v 149 CutlMish, R. V 219 D Dalton V. Colt 20 Daman, R, y 188 Darton, J. J., R. v 148 Davis, R. V 16 Day V. King 212 Deace, R, v 196 Dickinson v Brown 217 Dimes v. Grand June. Canal. 1 1 Dodson, R. v 13 Dove,R. V 190 Dowcll «. Benningfuld 146 Drake, R. v 185,136 Diiignan v. Walker ... 69 Duncan, R. v 187 Dunn V. Penkwood 181 Durdon, Cripps v 151, 194 E Earnslmw, R. y 191 Edlcston V, Francis 152 Edwards, R. V 187 Ellis, Rawlins v 69 Elsee v Smith 65 Emmett w. Butler 18 Empsey, Louch v 147 Eutrehman's case 21 Everett, R. v 190 F Farewell, R, v 235 Field V. Jones 147 Fitzroy, Linford v 8, 98, 100 Fletchers. Calthrop 189 Fletcher, 3 o^hwo., ezparte 102 Ford, R. V 192 Forster, Mitchell i; 147 Foster, Mitchell v 153 Francis, Edleston v ,.. 152 Eraser's case 19 Freeman y. R(;id 147 Frosc, Labalmondiero v 200 Fuller, R. y 188 Furnival, Alison v 29 G Galliard v. Laxton 217 Garland, Lester I' 146, 147 Gartham, VVithnall, v 225 Gee, Onley v 155 George, R. v 19 Geswood, re 192 Gil)bs,R. y 37,190 Gilliam's case 20 Gill y Scrivens 191 Gilyard, R. y 235 Goodrich, R. v 153 Gosling, Barnard y 195 Gossett y. Howard I4 Graem & al., Charter v 187 Grand June. Canal, Dimes v. U Gray v. Cookson & al.. 150, 200 Greav Marlow,R. v 173 Green, Parker v 15 Green & al, R. v I4 Grittin, R. v 173 Grissell, Stokes 69 INDEX OF CASES. XI H Hall, R. V 185, 192 Hammond, R. v 149 Handley, R. v 150 Hardy v. Ryle 147 Hardyman v. Whittaker 195 Hare &al.,R.j; 196 Harrison I?. Leaper 150 Hawkins, exparte 188, 189 Hawkins, R. u 191 Haynes, R, V „ 36 Hazell, R. v 187 Helps, R. t; . .... 216 Hereford, Mayor of, case of 11 Herefordshire, J. J., R. t; 225 Hicks, Collier i; 83 Higgon, Yonng v , 147 Hoffman, Peppercorn v 213 Holmes, Latless v 147 Hope V. Hope 226 Hopwood, Collins v 195 Hopwood, ezf-irte 153 Horn, Chandler v 181 Horton, Cropper V 77 Hoseason, R. v 11 How, R. V 188 Howard, Gossett V 14 Howland in re 77 Hudson V, Macrae 13 Hiiggins, R. V 186 Humphreys, R. v 79 Huntingdon, J. J., R, v 200 I Ireson, Cattcll v 18 .James, R. v. 189 Johnson, Masscy y.. 200 Jodes, Field v 147 Jones V. Johnson 212 Jones, Rice, exparte 153 Jukes, R. V 187, 188, 190 Keir D. Leeraan 183 Kendall i;. Wilkinson 226 King v Brooke 226 King, Day v 212 King, R. V 196 Kinnersley v Orpe 12 Labalmondifre v Addison... 152 Labalmondiferc v Frost 200 Lake u Butler 69 Lard, R. v 150 Latless v. Holmes 147 Laxton, Galliard v 217 Lee, Lindsay v , 20O Leaper, Harrison v 150 Leeman, Keir u 183 Lester r. Garland 146, 147 Lindsay v Lee 200 Linford v Fitzroy 8, 98, lOa Little, R. V 190 Llewellyn, R. d 188 Lloyd, R. V 190 London, Lord Mayor of, R. u. 102 Lopez, R. V 59 Louch i>. Enipscy 147 M McDonnell, cj^a^/g 216 Macrae, Hudson v 13 Madt II V. Catanagh 20 .Jarvis, R. w 188,192 Marriott, R. y 192 .Jefferics, il. t; ,.. 185 Marriott u. Shaw 151 Jervis, R. u 189 Marsh, R. v 188 Johnson, «x/jflr/e 206,225 Marshall, R. r 190 Johnson y. Reid 212 Martin y. Pridgeon 155 Johnson, .Jones u 212 Massey y. .Johnson 200^ Xll- INDEX OF CASES. %i MastfiN, re.. _ 215 MaltlicwSjU. V 151 Maulden, II. v 14 Mayht^w y. WardUy 197 Mec V. Roid 21 Mc'IvilloK, Lord, casL- 15 Middlcliurst, R. v 188 Middlesex J. J., K. v 225 Mildranc's case 21 Milligan, Brook q. t. v 194 Mirehousi.', Somervillc v 152 Mitchellt'. Forster 147 Moore, R. y 18 .Morehouse re 152 ]Morgan, Cohen v 77 Morgan v. Brown 107 N Xash. R.i' 214 N!iyh)r, Partridf^e v 195 Nethercote, Cook v 181 Neville, R. v 192 Newman, larrv v 235 Niehi, R. v. ...1 188, 189 Nilson, Coster u IG North, H. V 188 OCJrady, R. v 12 Omiohund v. Barker 20, 21 Unley V. Gee 155 Orpe, Kiunershy v 12 Oxfordshire, J. J., R. v 225 r Pain. R. r 188 Paliu, Wright v 18 Palmer, R. v 191 Parker v. Green 18 Parker, Speercs v 191 Parkinson, Ratt r 206 Parry c. Newman 235 Partridge I'. Navhn- 195 Patchett, R V .". 193 Payne, Chaney t) 188,200 Peacock v. Bell 14 Peerless re 10 187, 212 Pellew, I'. M. of Walford 14G Pcnkwood, Dunn v 181 Peppercorn v Hoflinan 213 Pcrelre, R. v 187 Perham, exparfe 188, 189 Pinney, R. v 243 Popplcweil, R. V 188 Post Mast. Gen., Shepherd v. 155 Post Mast. Gen., Turner v... 155 Powell, R. V 190 Pratten, R. v 101 Preston, R. v 153 Price, R. v.. 181 Pridgeon, Martin v 155 Prince i'. Samo 25 Q Queen's case 25 Queen, The, Spehnan v 180 Ratt t'. Parkinson 206 Rawlins V. Ellis 69 Reason, R. v 16 Reed, Freeman v 147 Reid, Johnson v 212 Reid, Mee v 21 Revel, R. v 247 Reynolds, Scarle o 150 Richards, R. y 216 Ridgway, R. v 189 Rispal, R. V 36 Robinson, R V 14 Rodenham, R. v 235 Rogers, R. v 216 Rowed, R. V 188 Rose, R. V 235 Rowton, R^ V 24 Russell, R. V 173 Ryle, Hardy v 147 INDEX OP CASES. Xlll S Saddler, K. v 187 Saflron, Wiildon, 11. v 69 Sainsbury, R. o 173 Salomons, 11. o 193 Same, Prince v 25 Sandiman v. Broach 149 Sansomo, K. v 82 Sattlcr, R. v 59 Scrivcns, Gill v 191 Searle v. Reynolds 150 Seymour, Daudle u 148 Shaw. Marriott!) 151 Shawj R. V 153 Sheffield Railway Co., R. v.. 235 Shepherd v. Post Mas. Gen. 155 Shirley, A. G. v 188 Shropshire, J. J., R. v 147 Sills, n.v 18 Simpson, R. v 186 Smith, Elseei; 65 Smith, exparte I(j5, 216 Smith, Zohrab, v 153 Soden v. Gray 20 Somerville v. Mirehouse 152 Spailing, R. v 188, 189, 190 Speed, R. Vu 12, 188 Speeres y. Parker 191 Spelman v. The Queen ,... 189 Staffordshire, J.J., R. v.. '83, 197 Stewart, Wilson t) 150,165 Stokes V. Grissell 69 Stokes y. Byron 181 Storkers' case 188 Stripp, R. V 28, 83 Suffolk, J. J., R. V 12 Sutton, R. V 150 Swift, Cook V 192 T Taylor r. Clemson 153 Taylor, R. v 190 Thexton & al , R. v. 13 Thompson, R. y 18 Tolley, R. v 14*) Trelewnev, R. v 187 Tumor v. Post Mas, Gen 155 Turnr, re 192 Turner R. v 187 V Van Heubeck, R. v 190 W Wailbrd, M. of, Pellew v.... 146 Walker, Duignan y 69 Ward, R. v 153 Wardley, Mayhew v 197 Warwickshall, R, y 83 Warwickshire, J. J., R. v.... 223 Watson, R. v 15 Watts, R. V 79 White, Barnes v 216 Whittaker, Hardvman v 195 Wilkes, R. v \ 219 Wilkins V. Wright 195 Wilkinson, Kendall y 226 Williams y. Burgess 141 Williams, R. v..\ 149, 212 Williams, re 153 Wilson y. Stewart 150, 165 Withnall y. Gartham 225 Wiightv. Palin 18 Wright, Wilkins y...., 14 Wyatt, R. y 213 Y Yarrington, R. v 36,37 Young y. Higgon 147 Z Zohrab u. Smith 153 ERRATA. Tagc 35, line 26 ft. "be " read "are." " 70, line 22 ciise "that." " 147, line 4 read « 31 Vict. o. 1. s. 7. subs. 14,)" for " (Viet. 3. c. 1. s. 7.)" " 150, lines 6 and 15 for " Okes Sjn. iii)" read (':S, or negligent in our aforesaid coun- ty ; — and of all and singular articles and circumstances, and all otlicr thingK whatsoever, tliat concern the premises or any of tlicm by whomsoever and after what manner soever in our afore- said county done or perpetrated. Or which hereafter shall there 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 the aforesaid county made or taken, and not yet determined ; — and to make and continue processes thereupon against all and (6) The offences of forestalling, regrating, and ingrossing wer»^ abolished by the 7 & 8 Vict. c. 24. APPOINTMENT OF JUSTICES. singular the persons so indie tod, or who hefore you heroaftor shall liappen to be indicted, untill they ean he taken, suryender them- HelveH, or he outlawed ; — and to hear and determine all and 8in- gular the felonies, poysonings, ineliantinents, sorceries, art magick, trespaf ses, forestallings, regratings, ingrossings, extortions, unlaw- ful assenil)lie8,. Indictments aforesaicl, and all and singular other tile jiremises, according to the laws and statutes of England, as in the like case it has been accustomed, or ought to be done ; — ani^ the same offenders and every one of them for their offences by fines, ransoms, amerciaments, forfeitures, and other means, as ac- cording to the law and custom of England, or form of the ordi- nances and statutes aforesaid, it has been accustomed, or ought to be done, to chastise and punish. ** Provided always, that if a case of difficulty upon the determi- nation of any of the premises before you or any two or more of you shall happen to arise, then let judgment in nowise be given thereon before you or any two or more of you, unless in the pre- sence of one of our justices of the one or other bench, or of one of our justices appointed to hold the assizes in the aforet?aid county. " And therefore we command you and every of you, that to keeping the peace, ordinances, statutes, and all and singular other the premises, you diligently apply yourselves ; and tliat at certain days and places which you or any such two or more of you as is aforesaid shall appoint for these purposes, into the premises ye make inquiries ; and all and singular tlie premises hear and de- termine, and perform and fulfil them in the aforesaid form, doing therein what to justice appartains, according to the law and ciis- tom of England ; saving to us the amerciaments and other things to us therefrom belonging. " And we command by the tenor of these prc^sents our sherifVs of the said county of , that at certain days and places, which you or any such two or more of you as is aforesaid shall make- known to him, he cause to come before you or such two or more of you as is aforesaid, so many and such good and lawful men ot his bailiwick (as well within liberties as without), by whom the truth of the matter in the premises shall be the better known and inquired into. " Lastly, we have assigned you the aforesaid A. B. keeper of th<; rolls of our peace in our said county; and therefore you shall cause to be brought before you and your said fellows, at the days and places aforesaid, the writs, precepts, processes, and indict- ments aforesaid, that they may be inspected, and by a due course determined as is aforesaid." " In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster, &c. \ 1 1 i il If If ^11 6 APPOINTMENT OF .TlTHTlCES. Dalton defines Justices of the Peace as " Judges of Record *' appointed by the Kinj:- to be Justices within certain limits " for the conservation of the peace ; and for the execution of " divers thinj^s comprehended within their commission, and " witliin divers statutes committed to their clifjrL'c." Djilton p. G. BdHig of Poircrs. The power, office, and duty, of a Justice of the Peace depend on his commission, and on the several statutes which have created objects of his jurisdiction. His commission first em- powers liim sin^rly to conserve the peace, and thereby j;ives him all the power of the ancient conservators at the connnoii law, in suppressing- riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. (2 Stephens Com. p. G54). It is to be remarked that in the heretofore Province of Cana- da, the practice has been, not to mention in commissions of the Peace the powers thereby conferred on Justices of the Peace. The commission being simply addressed to the per- sons assigned by nanic, and then containing the following : *' Know ye &c., we have assigned you jointly and severally " and every one of you to keep our IVace in our District of " Montreal, in that part of the Province of Canada called " Lower Canada, with all and every the powers, authority. " privileges, and advantages to the Office of Justice of the *' Peace of right and by law appertaining. And we do here- " by revoke and make void all former contmisilons." It may be a question whether under such a commission as the one in use heretofore in Canada, Justices of the Peace derive any power from their commission, it merely making them officers to carry out the provisions of statutes, creating duties for and granting powers to. Justices of the Peace. F DUTIES OF .Il-STICES. 7 111 the several Provinces of the Dominion the dignity of Justice of the Peace can nlonc 1)0 ronferrod. it appears, by the Local Goverinncnt. ( 1 ) (^iiiih'jirnfion. Tlie subject of property qualification is one now governed l)y the local law of the Province, within which the Justice of the Peace holds his commission, and the oath or oaths to })C taken before actinp; are also prescribed by local laws. K.i'-off'u'io Jiisfirrs. The diurnity of Justice of the Peace is also attached to cer- tain offices : Judjics of the Superior Courts of law, Recorders. Mayors, Judges of Sessions are in many instances, by virtue of their offices, -tXusticcs of the Peace for certain localities. Tt is to be remembered that this work does not treat of the duties of Justices of the Peace under acts of Local Lej.;isla- tures. but is confined solely to a consideration of their duties and powers under the acts of the l*av1iament of Canada, II. THE NATURE OF THE DUTIES OF .lUSTlCES OF THE PEACE. Acts ministcrld/ or jvd'u'ini, Miiiisterial acts. Judicial acts. The acts of Justices of the Peace in the discharge of their duty are either ministerial ov judicial. Receiving information:* or complaints for indictable cftences, and also for offiinces or matters determinable in a summary way ; causing the party charged to appear and answer either by summons or by war- (1) Tlie Local Governnitnts posf^css apparently the right of nomination ; l)ut vide Paloy p. 48, being specially officers of th« criminal law it M-onld seem that the right to appoint them should vest in the Doniinion GovcrunR'iit. [ 8 JURISDICTION OF JUSTICES. Itl' < i ft •k I HI' liii:: rant; causing, in the case of summary convictions or orders, Hucli conviction or order to be executed by warrant of distress or of commitment, are ministerial acts. Taking the exami- nations and bail, or committing for trial on charges for indic- table oifenees (Linford vs. Fitzroy 3. N. S. C. pp. 443, 444 ; contra Okes Syn, p. 5), the trial of offenders, the hearing and .•Kljudicatioii. upon informations for summary offences, and upon complaints for non payment of money underacts giving them summary jurisdiction, and in fact all acts by them done whereby they decide between rival claims, are judicial acts, III. JUlUb'DICTION OF JUSTICE AS TO LOCALITY, INTEREST, 4C. fiiisLt of Jurisdiction. The juristliction of Justices whether for Districts, Counties, Cities, kc, in particular matters is derived from their com- n)is!^ion (2) and numerous .statutes (Okes Syn. p. 7 ; Dicken- sons Guide to the Q. S. 59.) By the 32 k 33 Vic. c. 30, the authority of Justices of the Peace with respect to the preliminary examination into in dictable offence.-^ of all kinds is defined (Vide post). By the 32 & 53 \'ic. c. 31. general rules and orders for their guidance in .'nummary informations and complaints, over tlie subject matter of which the Parliament of Canada has jurisdiction, are laid down (Vide post). By the 32 & 33 Vic. c. 32 &33, extensive powers are con- ferred in Ontario and Quebec, upon Recorders, Judges of (\.)unty Courts being Justices of the Peace, Commissioners of Police, Judges of the Sessions of the Peace, Police Magistrates, District ^Magistrates nnd other functionaries or tribunals in- vested on the 22nd. June 18G9 with the powers vested in a (2) See ante p. 6. JURISDICTION OF JUSTICES. 9 Recorder by cap. 105 of the Consolidated Statutes of Canada, and any functionary or tribunal with power *o do alone such acts as are usually required to be done by two or more .Justi- ces, and in Nova Scotia & New Brunswick upon Commissioners of Police, and any functionary, tribunal or person invested with power to do alone what is usually required to be done by two Justices to insure the prompt and summ'>ry administration of criminal justice in certain cases. (Vide p,,st). By the 32 & 33 Vic. c. 35, still more extended powers arc f2:ranted to any County Judge, Junior or Deputy Judge au- thorised to act as Chairman of the General Sessions of the Peace in Ontario, and to Judges of Sessions, District Magis- trates in Districts wherein there are no Judges of Sessions, and Sheriffs of Districts wherein there are neither Judges of Sessions nor District Magistrates. (Vide post). It is to be remembered that the provisions of the last men- tioned act apply only to the Provinces of Ontario and Quebec. JSummari/ Convictions, Nnmher of Justices required to hear and deto'mine. Power of one Justice to receive information and to issue varrant of distress. Power quoad indictahh offences. In summary convictions, the jurisdiction of Justices is wholly given to them by Statute. (Paley p. 15; Okes Syn. p. 7.) If by the Act or Law upon which the complaint or information is framed it be provided that it shall be heard and determined by two or more Justices, then it must be heard by the number, at least, of Justices therein specified. (Vide 32 ct 33 Vic. cap. 31. sec. 27. and post). But if there be no such provision in such Act or Law then it can be heard and determined by one Justice (Vide 32 & 33 Vic, cap. 31. sec. 28 post). Where power is given to one justice to do 10 4URISDICTI0N OF JUSTICES. ail act, two or more can join in doin^' it. One Justice can re- ceive an information and complaint and enforce any summary conviction or order made by another or other Justices (32 & 33 Vic. cap. 31. sec. 85 k 86 post), and can do every act out of sessions rehitive to any indictable oft'ence, save admitt- injr, after liearinp^ the witnesses, a person accused of felony, to bail for his appearance for trial. (32 i^. 33 Vic. cap. 30 sec). Prlmarij jurindlctioii. 1)1 indictah/e oJfen(y\s. Ill sumnwri/ convicUons a ml urdrrs. The primary jurisdiction of Justices extended solely over offences, conmiitted in the Division for which they were ap- pointed. In indictable offences, now a days a Justice has juris- diction to take the preliminary examination when the offence has been committed in the Division for which lie has been appointed, or when the party accused is therein or is suspect- ed jto be therein (32 k 33 Vic. cap. 30. sec. 1 post.) In summary convictions and orders it would appear as if the offence or act complained of need not luive been committed or done within the Division for which the Justice has been appointed, so loni;- as the person accused is within such Divi- sion, (but vide 32 i\: 33 Vic. c. 31 s. 1 . fl. of L. Cases 759, 785). Every proceeding which bears this objection upon its fiico is absolutely void, if it do not so appear it is merely voidable. (Dimes vs. Grand Junction Canal Co. supra). A Justice acting when interest- ed, is liable to punishment by attachment. (The Mayor of Herefords c.se 2 Ld. Kaym. 7G6; 1 Salk. 201. 390; II v. Iloseason 14 East GOG). Dnty of Justices when interested in matter at isitur. Justices should refrain from taking part in any matters in which thoy individually have a personal interest ; such as where they are members of a company, or stockholders in a bank, complaining or complained against. Where a Justice upon the trial of a parish appeal, he being a rated inhabi- tant of the appellant parish was on the bench during the hearing, though he did not vote or give any opinion upon the question or influence the decision, the order of sessions was PKonHPm HMDi 12 JURISDICTION OF JUSTICES. held to be invalid by reason of his presence and interference. K V. Justices of Suffolk 21. L. J (N. 8) M. C 169 ; Reg. v. O'Grady 7 Cox C. 0. 247.) ExcejHion . Sometimes however a Justice of the Peace is expressly empowered by statute to adjudicate, although to a certain extent interested in the result of the decision. But great care must be exercised by a Justice interested in a case, ere act- ing therein as a magistrate, to assure himself that he is so expressly empowered. Officers 2)f'ohlhited from acting as Justices. Certain officers are occasionally prohibited from acting as Justices of the Peace. But as the prohibition is one lying within the power of the Local Legislatures, it does not come within the scope of the present work. ' ?' OUSTER OF JUSTICES JURISDICTION. Odster of jurisdiction on questions of property and title and claim of right to do the act complained of Where property or title is in question, the jurisdiction of justices to hear and determine in the cases regulated by 32 & 33 Vic. c. 31 and other cases of the same class of summa- ry matters is ousted, and their hands tied from interfering, though the facts be .-sucli as they have otherwise authority to take cognizance of. (II v. Burnaby 2 Ld. Bay. 900 ; 1 Salk. 181 ; B. V. Speed 1 Ld Baym. 583 ; Kiunersley v. Orpe Doug. 499). This principle is not founded upon any legisla- tive provision, but is a qualification whiv?h the law itself raises in the execution of penal statutes and is always implied in their construction. The jurisdiction however is not to be ousted by a mere fictitious pretence of title, or even by the honflfide claim of it:' JURISDICTION OF .irSTICES. 13 a right which cannot exist at law. (R v. Doelson 9 Ad & El. 704; Hudson v. Macrae 33 L. J. (N. S) M. C. 95; Okes Syu. 31; Paley 117-122). • ProhUntloii issnahle in certain cases. It is said that upon a suggestion of title the Court of Queen's l?ench in England, at any time while the conviction remains below, and has not been removed by certiorari, will grant a prohibition after conviction to stay the justice from proceed- ing upon it. (Per Holt C. J. 2 Ld Raym. 901 ; Paley 122 cS: note (n) ) - ' . Acts of servant. . The acts of a person's servants under his guidance in assert- ing a right, would not render them liable to conviction if he be not so liable. (Reg. v. Th^xton & al 23 J. P. 323). GENERAL INGREDIENTS TO GIVE JUSTICES JURISDICTION. The principal requisites or ingredients in general necessary to give justices jurisdiction to exercise their authority are therefore the following : Jurisdiction as to j^/r/cc where offence was committed, matter arose or where accused then is or is suspected to be. Jurisdiction as to j?(f«ce of exercising their authority. Jurisdiction not to be exercised where Justice is a party, or interested ; ^ , ^Yhen Justices are prohibited by Statute from exercising. When Justices are disqualified from acting within their jurisdiction by other causes than interest ; When their jurisdiction (in all other respects complete) is ousted by a question of property or title. In addition to these there must be, Jurisdiction over the subject matter within the strict mean- ing of the commission, or the particular Statute, taking into account all exceptions and exemptions allowable ; ^f i n 1 1 ! i! 14 .ILRlSDICTiON OF JL'STICES. Jurisdiction in respect of the Justices description where the authority is delegated to particular justices ; Jurisdiction as to the time of offence or matter being pro- secuted within the period limited by statute or otherwise ; Jurisdiction as to the iiumhcr required to hear and deter- mine ; Jurisdiction as to the amount of forfeiture or penalty com- pensation and its nature, and costs adjudged to be paid, and the mode of their recovery by distress or otherwise, but ap- propriate to the offence and the Statute; Jurisdiction as to the term of imprisonment adjudged neither for too short nor too long a period, and the proper condition of its termination. Jurisdiction sliould be (ippitrcDt on if rittcn proceediugs of Justices. It is not sufficient that Justices have the jurisdiction in evciy respect ; upon all their written proceedings, especially in those records of their judgments which are final, i. e. convictions and orders returned to the Sessions, as the bad part cannot be severed from the good (Wilkins v. AVright 2 C. k 31, 191 ; Braceys case 1 Salk 349 ; R. v. Corben 4 Burr. 2218 ; 11 v. Catherall 2 Str. 900 ; 1 T. 11. 249) in the case of convic- tions, though orders may be (juashed in part if sufficiently di- visible (H. v. Mauldon 1 M. k B. 31. C. 385; B. v. Bobin- son 17 Q. B. 4GG, 471 ; B. v. Green k al. 20 L. J. (N. S.) 31. C. 168 k cases therein cited), every essential ingredient and every material fact necessary to give jurisdiction should appear. (Okes Syn. p. 33; Paloy 140, 141, 148; Gossett vs. Howard 10. Q. B. 411, 452 ; Peacock, v. Bell 1 Saund. 74). EVIDENCE BEFORE JUSTICES. It is not intended here to enter into a consideration of the whole law of evidence, a very succinct view of the law as to I r m EVIDENCE BEt'URE JUSTICES. 15 the coiupcteiicy and exaniination of witnesses, and the general rules as to oral and other evidence will only be presented, taken in great part from Mr. Okes exceedingly useful work The jMagisterial Synopsis. This chapter is divided into three parts. 1. The conipctency and examination of witnesses. 2. General rules as to oral and other evidence. 8. Documentary evidence. JinJes of evidence oppfirahk as well to rieil r/.s rrimi)ial cases. ExccpiioHs. According to the principles of English law it may be said, that thcrc'is no difference in the rules of evidence applicable to civil and criminal cases, and that what may be received in one case may be received in the other, and what is rejected in the one ought to be rejected in the other (Abbott J. in K v. Watson 2 Star N. P. C. 155), and that a fact must be esta- blished ])y the same evidence, whether it is to be followed by criminal or civil consequences (IjordOIelville's case 29 How. St. T. 763), yet the amount of proof to be exacted by justi- ces varies with the nature of the proceedings before them. If it be a preliminary inquiry into an indictable offence, the evi- dence must raise a strong presumption of the guilt of the party charged to justify the justice in committing him for trial (see 32 & 33 Vic. cap. 30. s 52), In summary penal proceedings the proof of guilt must be full ajul convincing, while in matters of civil jurisdiction, a mere preponderance of proof will suffice to establish the case. In sunjmary proceed- ings, the justices arc placed in the position of a jnry, and the degree of credit to be attached to the evidence, provided it be legally admissible, is exclusively in their consideration and judgment, the defendant being entitled io the benefit of any 16 EVIDENCE BEFORE .TT'STICES. n &. ipi ' ii 1 rli ! iff I if I I j! ; i V doubt which exists in their minds ; and therefore, whatever the Court of Queens Bench upon an inspection of the pro- ceedings, would deem sufficient to be left to a jury on a trial, when the evidence was set out on the face of the conviction, , was con'^idered by them adequate to sustain the conclusion .' drawn by the convicting magistrates. Beyond that, the Court would not exercise a judgment upon the credit or weight due to the facts, from which the conclusion was drawn (R. v. Davis 6. T. 11. 177, & sec Coster v. Nilson 3 31. & W. 411 ; R. V. Reason 1 T. R. 375; R. v. Bolton 1 Q. B. 66; Saun- ders. Prac. M. C. 3. Ed. p. (JG). 1. — THE COMPETENCY AND EXAMINATION OF WITNESSES. Ohjcctluii to credihllitjj not to conqyetciin/. It may be considered to be the general and established principle of evidence that objection may be taken to the cre- dibility, but not to the competency, of witnesses ; but this rule is subject to some exceptions. Formerly a witness might be objected to on many grounds, as being a party interested in the result of a case ; but without mentioning prior acts of the Provincial Parliaments, the Dominion act 32 & 33 Vic. cap. 29, s. 62 provides : General rule. "No person offered as a witness shall, by reason of any alleged incapacity from crime or interest, be excluded from giving evidence on the trial of any criminal case, or in any proceeding relating or incidental to such case.' ' 63 " Every person so offered shall be admitted and be com- pellable to give evidence on oath, or solemn affirmation, where an affirmation is receivable, notwithstanding that such person has, or may have, an interest in the matter in question, or in the event of the trial in which he is offered EVIDENCE BE FORK JlSTlCES. 1 as a witness, or of any proccediup; relating or inciileutal to such case, and notwitlistandinp: tliat such person so oft'ered as a witness has been previously convicted of fi crime or offence. " Husband tt' wife. It may be taken for prranted that under these two clauses all persons gifted with reason who believe in a Supreme Being, who will punish them cither in tlie present, or in the i'uture, life for perjury. (Powell 10, 21) (save the accused and his wife, on a charge of an indictable offence not committed by him on her person, and the defendant and his wife in the case of a summary prosecution not Ibunded upon a personal injury to her), are competent witnesses, In England the 14 & 15 Vic. c. 09 s. 2 & 3 rendered all parties to any suit or proceeding in any Court of Justice, or before any person having authority to liear, receive, and exa- mine evidence, competent witnesses, 3ave the party charged in any criminal proceeding. (.Summary convictions being therein included). It was thereby moreover expressly pro- vided, that nothing in the said act contained, should render a person compellable to answer any (juestion tending to cri- minate liimself or lierself, or should in any criminal ])roccod- ing, render any husband competent or compellable to give evidence for, or against his wife, or any wife competent or compellable to give evidence for, or against her husband. In cases of liigh treason and personal injury committed by one upon the other, husband and wife are not excluded from giving evidence for or against each other. (Okes Syn. GG k note 82). Wife o/ one accused competent iritnesH ii> cerf/iui rases against other accused. The wife of one of several persons accused of a joint offence can. under certain circumstances, be examined as a witness B ]H EVIDE.VCE BEFORE JUSTICES. i 1 ! i I'iii. Cor tl»e other persons accused. (11. v. Bartlett & al 8. J. P. :}20 ; K. V. Moore 1 Cox C. C. 50 ; R. v. Sills 1 C. & K. 494). Wliere two prip^ners were tried for a joint offence, and one pleaded guilty, the wife of the one so pleading was admitted us evidence a<;ainst the other prisoner. (Reg. v. Thompson 3 F. & F. 824). Qnestlons tending to subject icitncss to 2)€naltt/ or jiunish- ment. A person can not be compelled to answer any question, tending to subject him to .some penalty or punishment (Reg. V. Boyes 1 B. & S. 311), but if he chooses he is competent to do so. In the recent case of Reg. v. Butterfield 11 Law T. N. S. 448, it was held that a witness was not obliged to ans- wer a question tending to the forfeiture of a lease. (See Tay- lor on Ev. 4th Ed. pp. 12.3G— 1248). The proceeding to obtain a summary conviction by which the defendant may be punished by fine or imprisonment is a proceeding in a criminal case (Cattell vs. Ircson 27 L, J. (N. S.) M. C. 167; Parker v. Green 2. B. & S. 299.) The proceedings to obtain merely orders for the payment of money are civil proceedings. (Cattell vs. Iresou supra). Acquittal of one of accused renders him comjyetent to give evidence. One of the accused pleading guilty competent witness. Independently of the 32 & 33 Vic. c. 29 which removes a person's incapacity from crime, the law is, that where several offenders are charged and the cases are heard at one time, after all the evidence on both sides has been heard, if there be no evidence against one of them he is then entitled to de- mand an acquittal. (Wright vs. Palin R. & M. C. C. 128,) but he is not entitled to a verdict in the midst of the inquiry, (Emmett vs. Butler 7 Taunt 599) although the Court may ■ii'ii EVIDENCE BEFORE JL'STICES. 19 In its discretion allow of his ncrjuittal at any staj^c of the trial before the reply, in oraer that he may be examined as a wit- ness (Bedders case 1 Sid. 237; 2 Hawk. P. C. c. 4G. s. 98). When acquitted he is competent (Frasers easel Mac-NalEv. 55; R. V. George, Car. k Mar. Ill) ; also where one of seve- ral defendants pleads guilty, he may be called as a witness for the other defendants before sentence, unless he lias an interest, as in conspiracy in obtaining their discharge. (R. v. George, Car&;M.lll; See Taylor on E v. 4th Ed. pp. 1155, 115G.) Poiccr and duty of Justices to administer oath to vitnesses. It may be laid down as a general rule, that wherever Jus- tices are authorised by Act of Parliament to hear and deter- mine, or examine witnesses, they have incidentally a power to take the examinations on oath or solemn affirmation as the ca.se may be, and in fact examinations not on oath or solemn affirmation, with one exception hereafter to be noticed, are not evidence. The oath is generally in the following form. Form of oath. " The evidence you shall give touching this information " (or complaint or the present charge or the application or as " the case may he) wherein is informant (or com- " plainant or as the case may he) and is Defendant " (or as the case may he) shall be the truth, the whole truth, " and nothing but the truth. So help you God." the New Testament should be, during the administration of the oath, held in the witness' ricrht hand and at its conclusion he should kiss it. Quaker. If the witness is a Quaker or other person allowed by law to affirm instead of swearing in civil cases, or solemnly declar- f h' 1 ! 1 -^ 1 ! i I ^^' ii ! i! 1 '''■ I :li 20 EVIDENCE JJKI'UUE .ir.STlCES. ing that the takiiiu; of any oath i.s aceortliii'^ to his i'cli<:iou.s belief unlawful, he is |)(Mniitto4 so make lii.s solemn affirma- tion or declaration of the farts he affirms to, commencing it with the words •• Ii. A. B. do solemnly, sincerely and truly " declare and affirm that kc" (:]2 &; 'S'd Vic. c. 20. s. 61.) Foi'))i f>/i)(if/i to he (ircomodiifcd to rcfigioKS hrlirf of u'lt- 1ICSH. The form of oaths under which (Jdd is invoked as a wit- ness, or as an avenger of perjury, is tn 1k' accomodated to the religious persuasion which the swearer entertains of God. and to be administered in such form as is binding ou the witness' conscience; it being vain to compel a mau to swear by a God in whom he does not believe, and whom he does not therefore reverence. Infidels. But if a person says he has no belief in a God, or iu a fu- ture state, he cannot be sworn, and his evidence cannot be received (Maden v. Catanagh 2i;. J. P. 248 ; Powell ; 22 Taylor on E v. p. 1251). A Jew is sworn upon the Pentatench with his head covered (2 Hale. P. C. 279 ; Omiehund v. Barker, Willes 543), but a Jew who stated that he professed Christianity, but had never been baptized, nor ever formally renounced the Jewish faith, was allowed to be .sworn on the New Testament (Gilhams case 1 Esp. 285). Where a witness refused to be sworn in the usual way, but desired to be sworn by having the book laid open before him, and holding up his right hand he was sworn accordingly (Dalton v. Colt 2. Sid. G, AVilles 553). Scotch. The Scotch oath is thus admiuistered ; holding up his right hand uncovered, the witness repeats after the Clerk (who ought KVIDENCE BEFollK Jl'STKES. 21 to atliuiuistev the oatli with soloiunity and reverence, stauding) ; •' I swear by Ahnii,'hty God, and as I shall answer to God at the great day of jiulijcuient, that I will tell the truth, the whole truth, and nothing l)ut the truth, in so far as I know and shall be asked in this cause '' (Vide with slight alterations forms in ]Mildrancs case 1 Leach 412 ; iS: Mee. v. Ecid, Peakc N. P. C. 23). Jf((Itoniffaiis, I\n'Sf('ft. A Mahometan is sworn on the Koran, placing one hand on the book, the other on his forehead, he brings the top of his forehead down to tin book, touches it with his head, and then looks for some time upon it (Koscoc Cr. Ev. 3 Ed. p. 331 ). A I'arsee swears in a similar mode, except that instead of the Koran' he swears on the prayer book used by the Par- sees. A Peer must be sworn if examined as a witness (Arch- bold P. cV: Ev. Civ. Act 480). (teutons. (liiucsc !)('((/ ami dumb pci'so}is lonl/oiriyiin's. Oath of interpreter. The deposition of a Gcntoo has been received, who touched with his hand the foot of a Brahmin (Omichuud v. Barker 1. Atk. 21). A Chinese on entering the box kneels down, and a china saucer being placed in his hand lie breaks it against the box — the clerk then administers the oath to him in these words " you shall tell the truth and the whole truth ; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer (I^^ntrehmans case 1, Car & M. 248). Deaf and dumb witnesses, as well as others who do not speak the language spoken by the justice, should be sworn 22 EVIDENTE BEFOIIE JUSTICES. througli the lucdium of another person duly qualified to in- terpret them, the interpreter being first sworn faithfully to interpret what the witness may say. The interpreters oath may be in the following form. " You shall truly and faithfully interpret the evidence about to be given, and all other matters and things touching the present charge {or information as the case may be) and the (French or as the case may be) language into the English language, and the English language into the (French or a« the case may he) language, according to the best of your skill and ability — So help you God, [II 'i 'I ■1' MODE OF EXAMINATION OF WITNESSES. E.camuiation in chief. On an examination in chief a witness must not be asked leading questions, i. e. questions in such a form as to suggest tlie answers desired. There are several exceptions to this rule : lo. With the permission of the Court, when the wit- ness is hostile to the party by whom he is examined, 2o. Where a witness has apparently forgotcn a circumstance, by inspections of a memorandum to refresh his memory (Powell 376, 379) ; 3o. Where the object is to contradict another witness as to a certain fact, 4o. Where the object is to iden- tify persons. 5o. Where the (juestion is merely introductory to another. A witness must be asked only questions of fact which are relevant and pertinent to the issue ; and he cannot be asked irrelevant questions, or questions as to his own in- ferences from a personal opinion of fact. General rule. By the 32 & 33 Vic. cap. 29 it is provided that : SI. 68 " A party producing a witness shall not be allowed to " impeach his credit by general evidence of bad character, but ' .111 KVIDENCE BEFORE JUSTICES. 23 " in case the witness in the opinion of the Court, proves ad- " verse, such party may contradict him by other evidence, or '' by leave of the Court, may prove that the witness made at "other times a statement inconsistent with his present testi- " mony ; but before such last mentioned proof can be given, "the circumstances of the supposed staten^ent, sufficient ti> " designate the particular occasion, must be mentioned to the " witness, and he must be asked whether or not he did make " such statement." E.rceptions. It is further provided by the same Statute that : s. G6 " It shall not be necessary to prove by the attesting " witness any instrument to the validity of which attestation " is not requisite, and such instrument may be proved by nd- " mission or otherwise, as if there had been' no attestinu wif- " ness thereto. s. 07 " Comparison of a disputed writing with any writing " proved to the satisftiction of the Court to be genuine, shall " be permitted to be made by witnesses ; and such writings and " the evidence of witnesses respecting the same, may be sub- " mitted tc the Court and Jury, as evidence of the genuine- " ness or otherwise of the writing in dispute. ( ^ross-cxam in a t io n . On cross examination, a witness may be asked leading questions; but where the witness appears to be favorable to the party cross-examining, the Court will sometimes not suffer him to lead his opponent's witness (Powell 381). The 32 k 33 Vic. cap. 21) contains the following provi- sions : s. 64 " Upon any trial, a witness may be cross-examined as to " previous statements made by him in writing, or reduced into " writing, relative to the subject matter of the case, witiiout ^ 24 EVIDENCE BEFORE JUSTICE^!. ill ' 11 sH ■Is '•' such wrltiiifr beini;- .shown to him ; but if it is iuteuded to •^ contradict the witness by the writing', his attention must be- '' fore such contradictory proof can be given, be called to those '' parts of the writing which are to be used for the purposes of '' so contradicting him ; and the Judge at any time during the '* trial, may require the production of the writing for his ins- "• poet ion, and he may thereupon make such use of it for the •• purposes of the trial as the thinks fit. s. 85 " A witness may bo questioned as to whether he has been " Convicted of any felony or misdemeanor, and upon being so • (juestioned. if he either denies the fact or refuses to answer, •• the opposite party luny prove such conviction, and a certi- •' ficate, as provided in sectioii twenty-six, shall, upon proof •' of the identity ol' the witness as such convict, be suificient •• evidence of his conviction, without proof of the signature •• or the oihcial character of the peri^on appearing to have •• signed the certificate. s. 69 " If a witness, ujtou cross-examination as to a former •■ statement made by him, relative to the subject matter of the •• case, and inconsjstent with his present testimony, does not •• distinctly adn)it that he did Ujake such statement, proof •• may be given that he did in fact make it ; but before such •' proof can be given, the circumstani^es of the supposed s'^atc- •• ment, sufficient to designate the particular occasion, must •' be mentioned to the witne.'ss, and he must be asked whetlier • or not he did n^ake such statement. Witness as to character. AVhere a prisoner calls witnesses as to character only, it is not usual to cross-examine them, although the strict right so to do exists (ViJe as to general reputation and evidence in reply to evidence of character lleg. vs. Rowton 1 Lrig'. & Cave C. (\ 520), uor is a person to be cross-examined who is merely called to produce a deed or other instrumeujt. EVIDENCE BEFORE JUSTICES. 25 Re-exam inat ion. The office of are-examination ivS to be confined to showing the true color and bearinpj of the matter elicited by cross-exa- mination; and new facts or new statements not tendint*- to explain the witness' previous answers, arc not to be admitted (Prince vs. Samo 7 Ad. & E. G27 ; Quec^n's Case 2. B. k B. 207 ; Powell 390). OENERAL RULES AS TO ORAL AND OTHER EVIDENCE. Generctl Kules. Best evidence. - Originals accounted/or ere secondari/ evidence given. Notice to 2)roduce. Snhpcena duces tecum. Xotice to produce unnecessarij in certain cases. From various decisions and authorities the following' rules have been extracted : 1. — One witness is sufficient if he can prove the necessary facts, except where any statute declares there must be two witnesses as in High Treason, and in cases of perjury. 2. — The evidence offered must correspond with the allc«ra- • tions and be confined to the points in issue (Taylor sec. 172). 3. — The best evidence of which the nature of the case is \ apable must be given, and this rule relates not to the measure/ quantity of evidence, but to the quality. (Powell 3G). 4. — The law presumes innocence until the contrary bo proved. (Powell 45). 5. — Hearsay evidence is inadmissible. (Powell 70.) (3) (3. — The issue must be proved by the party wlio states an affirmative; not by the party who states a negative. (Po- well 167. Vide 32 & 33 Vic. c. 31 s. 43 post). (3) Vide post nos, 24, 25. / ' / capi / and 26 EVIDENCE BEFORE JUSTICES. ' I! 1 li: i 7. — The issue must be proved by the party who states the affirmative in substance, and not merely the affirmative in form. (Powell 168). 8. — In every case the onus probandi lies on the person who wishes to support his case by a particular fact, which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant. (Powell 170). 9. — It is enough if only the substance of the issue be proved. (Powell 172). 10. — Where two persons are charged jointly, the confes- sion, or statements of one will not be evidence against the other. (Powell 164). 11. — On trials for conspiracy, where the conspiracy has been proved, the acts of one conspirator are evidence against the other conspirators. (Powell 164). 12. — Conversations which have taken place out of the hearing of the party to be affected cannot be given in evi- dence. 13. — That the evidence of an accomplice is admissible, but ought not to be fully relied upon, unless it be corrobo- rated by some collateral proof. (Powell 24.) 14. — That where positive evidence of the facts cannot be supplied, circumstantial or presumptive evidence is admissi- ble ; and that circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational pro- bability of innocence.'(l Starkie on Ev. 3. Ed. pp. 571, 575). 15. — The law presume?? in criminal matters, that every person intends the probable consequences of an act which may be highly injurious. (Powell 46). 16. — It is a general presumption of law that a person acting in a public capacity is duly authorized to do so. (Powell 48). .H EVIDENCE BEFORE JUSTICES. 27 17. — If a man by his owu wrongful act withold the evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted. (Powell 49). 18. — The law presumes in favour of the continuance of life. (Powell 50). 19. — A tenant cannot dispute his landlord's title. (Po- well 52). 20, — A witness must only state facts ; and his mere personal opinion is not evidence. (Powell 54, see exception No. 21). 21. — The opinions of skilled or scientific witnesses are ad- missible evidence to elucidate matters which are of a strictly professional or scientific character. (Powell 55). 22. — Counsel, solicitors and attorneys cannot be compell- ed to disclose communications which have been made to them in professional confidence by their clients. (Powell 60). Nor can Priests and Ministers be compelled to disclose secrets con- fided to them in confession made under the regulations of their respective churches or persuasions. 23. — A witness cannot be compelled and will not be allow- ed to state facts, the disclosure pf which may be prejudicial to any public interest. (Powell QG). 24. — In matters of public or general interest, popular re- putation or opinion, or the declaration of deceased witnesses, if made before the litigated point has become the subject of controversy, and without reasonable suspicion of undue par- tiality or collusion, will be received as competent and credible evidence, (Powell 78). 25. — The declarations of deceased persons are not admis- sible as reputation, unless they have been made before the issue has become, or appeared likely to become, a subject of judicial controversy. (Powell 87). 26. — Ancient documents purporting to be part of the trans- action to which they relate, and not a mere narrative of them. I 28 EVIDENCE BEFORE JUSTICES. 1 I I m w arc leceivablc in evidence tliat those transactious actually occurred, provided they be produced from proper custody. (Powell 89). 27. — III murder or homicide, the declarations of the de- ceased, concerniuu' the cause and circumstances of the mortal wound, if made with a full consciousness of approaching death and religious responsibility, are admissible in evidence for or against a prisoner who is charged with the crime. (Powell 107). 28. — The admission of a partner is evidence against his copartner in civil proceedings (Powell 142, 15G); under which rule is included admissions by persons acting in the character of agents or attorneys. 29. — Voluntary statements or observations made by a pri- soner before the examining magistrate are strictly admissible against him, whether reduced into writing or not. (1 Phill. 422 ; Reg. v. Stripp. 1 Dears. C. C. G48; 1 Lea. 309). DOCUMENTARY EVIDENCE. (1.) As to private documents, (2.) As to public documents,* (3.) Foreign and colonial laws, 1. AS TO PRIVATE DOCUMENTS. According to the rule, that the best evidence must be given ^ (ante rule 3, p. 25), and that secondary evidence is inad- I missiblc until the absence of primary evidence is explained I satisfactorily, a party who relies upon a written document, '■ i.nust either produce it, or show that he has made every rea- sonable effort to produce it. In the latter case, if he has been unsuccessful, ho may prove the original document, either by a copy, or any other authentic kind of secondary parol evi- dence. (Powell, 295) EVIDENCE BEFORE JUSTICES. 29 The rule is. that all originals iiiiist be acoouuted for, be- fore secondary evidence can be given of any one. (Parke, B. Alison V. Fumival, 1 C. ^\. k K. 31)2). It must first be proved that the original is in the hands of the adverse party, and that a notice to produce has been served on such a party a reasonable time beibre the hearing ; but where the document is in the hands of a third party, a subpoena duces tecum must be obtained from the crown office, justices having no power in any case to summon a witness and require him to produce documents before them. A notice to produce is, however, unnecessary in these cases. (Powell 299, 301). 1. — Where a party holds a duplicate original or counter part of the adversary's document ; 2. — Where the nature of the case and proceedings inform the adverse party sufficiently, that he will be required to produce the document ; 3. — A notice to produce a notice is not required, e. g. a, notice to quit, a notice of action, notice of dishonour of a bill, notice to produce a signed attorney's bill in an action on it ; 4. — If a party or his attorney be shown to have an original with him in court, and refuses to produce it, secondary evi- dence will be received, notwithstanding the want of a notice to produce ; 5. — Notice will not be required when the adverse party has admitted the loss of the original or where it is in the nature of an irremovable fixture; (). — Merchant seamen are permitted to prove orally an agreement with the master of a ship, without producing the original or giving notice to produce it, (17 & 18 Vic. c. 104. s. 1G5). 30 EVIDENCE BEFORE JUSTICES, i -I Proof of handwriting how made. Common law exception, to ride of calling attesting witness. Documents to refresh memory of witness. ■ The proof of signatures or handwriting is the essential part of the proof of private writings; there arc various admissible kinds of such proof: 1. — Handwriting may be proved by a witness who actually saw the party write or sign, which is the most sjitisfactory evidence ; 2. — By a witness who has seen the party write on other occasions, even if it be but once only ; 3. — By a witness who has seen documents purporting to be written by the same party, and which, by subsequent com- munications with such party, he has reason to believe the authentic writings of such party ; 4.— By 32 & 33 Vic. c. 29 s. 67 (applicable to all Courts and proceedings of a criminal nature) ''comparison of a dis- puted handwriting with any writing proved to the satisfac- tion of the Judge to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of wit- nesses respecting the same, may be submitted to the Court and Jury as evidence of the genuineness or otherwise of the writing in dispute." Should there be an attesting witness to the writing he must in certain cases be called ; but by 32 & 33 Vic. c. 29, s. GQ, in all cases, it is not now "necessary to prove by the attest- ing witness any instrument, to the validity of which attesta- tion is not requisite, and such instrument may be proved as if there had been no attesting witness thereto." To this re- servation there are several common law exceptions. Thus it is a rule that — an attesting witness need not be called to prove an instrument which is more than thirty years old ; or when ! ( EVIDENCE BEFORE JUSTICES. 31 the original is held by an adverse party, who refuses to pro- duce it after notice (Okes Syn. p. 84), or when the adverse party, in producing it, after notice, claims an interest under it ; or when the adverse party has recognized the authenticity of the instrument by acts in the nature of an estoppel in a judicial proceeding (Okes Syn. p. 84), or when the attesting witness is proved to be dead, insane, beyond the juris- diction of the Court, or otherwise not producible after due endeavours to bring him before the Court. It will be suflBcient generally to prove in these cases the handwriting of the attesting witness (Powell, 307). Docu- ments will often be admissible to refresh the memory of a witness, and the witness may give oral evidence accordingly after a perusal of their contents : — 1. — When the writing actually revives in his mind a re- collection of the facts to which it refers ; 2. When although it fail to revive such a recollection, it creates a knowledge or belief in the witness that, at the time when the writing was made, he knew or believed it to contain an accurate statement of such facts ; 3. — When although the writing revives neither a recollec- tion of the facts, nor of a former conviction of its accuracy, the witness is satisfied that the writing would not have been made, unless the facts, which it purports to describe, had ac- curred accordingly (Powell, 309). The following are established rules as to the admission of oral evidence to vary or explain written documents: — 1. — Extrinsic evidence is inadmissible to contradict, add to, subtract from, or vary the terms of a written instrument. 2. — Extrinsic oral evidence is inadmissible to prove that another contract not under seal has been discharged, either before, or after breach. .']2 EVIDENCE BEFORE JUSTICES. !]. — A written iustruuicnt cannot be released or avoided by evidence of an intrinsically inferior nature. 4. — Extrinsic evidence is admissible to explain written evi- dence. (Powell, 331, 35G). 2. PUBLIC DOCUMENTS. Justices of the Peace take judicial notice of numerous facts without proof, as the public Statutes of the Imperial Par- liament ; the Statutes of the Dominion of Canada ; their own course of procedure and practice ; the maritime law of nations ; the great and privy seals of the realm ; royal proclamations ; the divisions of the year ; Territorial Divisions of the Domi- nion of Canada ; the Canada Gazette ; but they will not no- tice the laws or customs of foreign States, and such laws must be proved by skilled witnesses. So also must local laws of the Provinces other than the one for a Division of which the Justice has been appointed. (Vide Powell 242. Taylor, sec. 7; Okes Syn. p. 85.) Other documents are proved as follows ; Judgments of Courts of Record by certified copy under Seal of Court ; Assignments in insolvency before a Notary passed in the Province of Quebec by copy certified by the Notary before whom original deed was executed. (32 & 33 Vic. c. 16 s, 115). By the Cons. Stat, of Ciinada cap. 80 the following provi- ^root' of any ruiu-h jiulirnu'nt. de- •' cree or judicial proceeding may be necessary or rctjuiivd, •' by an exemplification of the wimc under the Seal of (he • said CourtH respectively, without any proof of the authen- • ticity of Huch Seal, or other proof whatever, in the siime ■ manner Uf* any judgment, decree or similar judiciiil pn»- • ceeding of any of the Superior Courts of Common Law or •• E((uity in Upper Canada may be proved by an exeni))liti- •' cation thereof in any judicial or other proceedings in the • said last mentioned' Courts respectively.' s, 2 " A notarial copy of any notarial act or instrument • in writing made in Lower Canada, before a )iotary (tr • notaries, filed, enrolled or enregistered by such notaiy or • notaries, shall be received in evidence in any judicial or • other proceeding, either at Law or Equity in I'pper Ca- • nada, in the place and stead of the original, and shall " have the same force and eifect as the original would hfive •' if produced and proved." s. 3 " Such notarial copy may be rebutted or set aside by '• proof that there is no such original, or that the notarial •' copy is not a true copy of the original in some material ''particular, or that the original is not an instrument of •' such nature as may by the law of Lower Canada be taken " before a notary or notaries, or be filed, enrolled or enregis- '• tered by a notary or notaries in Lower Canada.'' s. 4 " Any judgment, decree, or other judicial proceeding • of any Court of Record in Upper Canada, may be proved •' in any suit, action or proceeding, in any Court in Lower " Canada, by the production of an exemplification of such 'judgment, decree, or other judicial proceeding, under the • Seal of such Court of Record, without any proof of the ' authenticity of the Seal, or other proof whatever.' c i 34 EVIDENCE BEFORK JUhTICES. I ■; li i ! ! I i f ' H. 5 " In every case io which the origiuul record could be ' received iu evidence, a copy of any oflScial or public docu- ' ment in this Province, purportiuf:; to be certified under the • hand of the proper ofl&cer or person in \\\\ohc custody fcuch • official or public documents may be placed, or a copy oi' • any document, by-law, rule, regulation or proceeding, or a • copy of any entry in any llegister or other book of any • Corporation, created by charter or statute in this province, ' purporting to be certitied under the Seal oi' such Corpo- • ration, and the hand of tlie presiding officer or secretary • thereof, shall be receiveable in evidence of any particular ' in any Court of Justice, or before any legal tribunal, or ' the Legislative Council or Assembly, or any committee • thereof respectively, or in any judicial proceeding, without ' any proof of tlie Seal of such Corporation, or of the signa- • ture, or of the official character of the person or person.** • appearing to liavo signed the same, and without any further • proof thereof.' s. " All Courts, Judges, Justices, Masters in Chancery, '' Clerks of Courts, Prothonotaries. Cominissioners, ,,udicially " acting, and other judicial officers in this Province, shall ■' take judicial notice of the signature of any of the Judges ••of the Superior, Circuit, or County Courts of Law or •• Equity in Upper or in Lower Canada, provided such '' signature be appended or attached to any decree, order, •' certificate, affidavit or other judicial or official document.' In Quebec, besides the act just in part recited, it is pro- vided by the Con. Stat, of Lower Canada, cap. 00, s. 5. that the exein])lification of any judgment, decree, or other judicial i)rocceding of any Court in the world, under its seal or under the signature of the Prothonotary, Clerk or (.^istodier of tlie Record, constitutes primil J'arif evidence EVIDENCE BEFOnK JISTirEfe!. 35 juld be 13 docu- tU-r the ly >^uch copy oi' ng, or a of ftuy )roviuce, I Corpo- ;ccrctary articular bunal, or 3nimittec , -without he higua- v perj40U!* ly further of jiueh jud^Mieut. decree, &c., unles.M proof to vhe contrary be rnnde. 8. provider an to tho re<'eption of the exemplifi- fication>4 of wills, cxetiitod in any country under tliC seal of tin' Court where the will is of record, or under the signature uf the Judge. .Surrogate or Clerk of such Court, or of the Custodier of such will. »f< pi imd facie evidence of the execu- tion of such will ; and also providei^ that the Probate of such will under the seal of a Court of competent jurisdiction shall be received as primfl facie evidence of its contents, and also of the death of tlie testator, unless proof to the contrary he made S. \) provides that a copy of Probate of a will granted hy a Foreign Court may be recorded in the • tffice of the Prntlntnotary of the Su}>erior Court, who tlien can grant lupif.- ihenof having the same force and effect as the original cxcuijilitication. S, 7 provides that certificates of marriage, hirth .hmI biirijii. gninted by the priest, minister, clergyman who uthciated thereat, or of the public officer before whom such tnarriapi' was contracted, or an extract from any register kept for the legistration of any such mar- riage. Ijaptism or burial. certiti»'d h\ ihe legal Custodier thereof, shall l»c taken and rcceiNcd as '"////// evidence of its Contents. The seaU. sijiiialures. aitd authority of the officer certify- ing, need not be proved urdess expressly denied in writing l>y any party to the suit or {)roceediug in which such docu- ujeiits wi signed, scaled or ccrtiti«'(l 1m' pnxluccd. (s. 8 and The seal tif any I'Vuvign State and tlic certilicute of any • •fits Secretaries of State, when ottered in evidence to esta- hlish the existence and com)>ctency of any Court, corporate hody, dergymau, priest or minister, office or officer, its or liis identity in relation to any jmhlie document, or any other lH : I I f ! 36 .TCRISDICTION OF THE QUARTER SESSIONS. I ■■' matter shall be deemed authentic without proof tiiereof, and shall be taken and received as prinid facie evidence of the fact intended to be established thereby (s. 10), subject to denial as mentioned in the preceding paragraph. The 80 cap. Con. Stat, of Canada applies to the Provinces of Quebec and Ontario. The 90 cap. Con. Stat, of Lower Canada applies solely to the Province of Quebec. In any of the other Provinces in which no acts to the like effect were passed previous to the creation of the Dominion, the rules of the Common Law must bo followed as to the proof of foreign judgment^, decrees, &c. .lURlSDlCTlON OF THE QUARTER SESSIONS. By their commission (when properly drawn), Justices in session arc directed to hear and determine all felonies, poi- sonings, enchantments, sorceries, arts, magic, trespasses, &c., and all other crimes and ofFenceSj of which such Justices may or ought lawfully to inquire. (^Ayite p. 3 n. 1.) Under the term felonies they had originally power to try all capital felonies, e. g. murder, although not specially named (Hawk. b. 2, c. 8, § 33) ; but they have been held to have no jurisdiction in forgery (Id. ^ 38, and Reg. vg. Yarrington, Salkeld 406). They had no jurisdiction to hear and determine treacfon. misprision of treason or praemunire (2 Hawk. c. 8, § 59). Under the term trespas.ses they had authority to try all misdemeanors which either involved a breach of the peace, or had a tendency to produce it ; among which latter class (ionspiracies have been included (R. vs. Rispal, 3 Burr. R. 1320). It has indeed been held that they have no power to try perjury when prosecuted at Common Law (2 Hawk., c. 8, §38, R. vs. Hayues, R. k M. N. P. C. 298; Reg. vs. JURISDICTION Of THK QUARTER SESSIONS. 37 Yarrington 1, Salkeld 406; R. vs. Oibbs 1, East 173); though if that ofifence was indicted under 5 E., c. 9, (which rarely happens) they have jurisdiction over it by the express words of the act. It seems to be now clear, that where an oftencc is created and declared a misdemeanor by a statute passed since the institution of the office of a Justice of the Peace, it may be tried by a Court of Quarter Sessions, unless there is some speciil direction that it shall be heard and determined by another Court (Dickenson's Prac. Guide to the Quarter Session, 4th Ed. p. 129, and vide cases contra in note (h) same page). Where a statute creates a new offence and limits it to be tried before a Superior Court having criminal jurisdiction, the Quarter Sessions cannot try it. (Vide 32 tS: 33 Vic, c. 29, § 12). By the 32 & 33 Vic, c 29, ^ 12, it is provided that— •' No Court of Grcneral or Quarter Sessions, or Recorder's •• Court, nor any Court but a Superior Court having crimi- " nal jurisdiction, shall have power to try any treason, or " any felony punishable with death, or any libel." By the 32 d- 33 Vic, c 21. § 70-92. it is provided as follows : — Agent, banker, dc, embezzling money or selling securi- ties, &c., intrusted to him : or goods, dr.. intrusted to him for safe custody. Punishraent. 2sot to bankers, r any part '' thereof respectively, or the proceeds, or any part of the '' proeceds of such security for any purpose, or to any person "specified in such direction, in violation of oood faith, and "contrary to the terms of .«uch direction, in anywise con- " verts to his own use or ])enefit, or the us(^ or benefit of any " person other than the person by whom he ha^ been so '■ intrusted, such money, security, or proceeds, or any part " thereof respectively, and whosoever, having been intrusted. '' either solely or jointly with any other j^rson, as a banker. " merchant, broker, attorney, or other agent, with any chattel 'or valuable security, or any power of attorney for the sale '• or transfer of any share or inteiest in any public stock or "fund, whether of the United Kingdom, or any part thereof. • or of this Dominion of Canada, or any Province thereof, or " of any British Colony or PossesHion. or of any foreign state. " or in any stock oi- fund of any body corporate, company or " society, for safe cu.>se " for which such chattel, security, or power ol' attorney has "been intrusU^d to him. sells, iiegociates, transfers, pledges. " or in any manner converts to his own use or benefit, or the •• use or benefit of any ])erson other than the py whom " he has been so intrusted, 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 ])ower of attor- '• ney relates, or aiiy part theieof. is guilty of a misdemeanor. '' and shall be liable to l>e imprisoned in the Penitentiary for "any term not exceeding seven years and not lesis than two " years, or to be imprisoned in any otlier paol or jilac* of JURISDJCTION (tF THE QUARTER .SESSIONS. 39 •• CHiitiuemeiit for any term less than two years, with or '• without hard labour, and with or without solitary confine- '• ment ; but nothing in this section contained relating to *• agents .shall affect any trustee in or under any instrument " whatsoever, o)- any mortgagee of any property, real or '• personal, in respect to any Act done l)y such trustee or '• mortgagee in relation to the property comprised in or " affected by any such trust or mortgage : nor shall restrain '• any bunker, merchant, broker, attorney or other agent from '• receiving any money due or to become actually due and '• payable upon (tr 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. u])on which he '• has any lien, claim, or demand, entitling him by law so to '• do, unless such sale, transfer or other disposal extends to a *' greater number or part of such securities or effects than •'■ are requisite for ^jatisfying such lien, claim or demand.'' BanJcers, d'c, frdvdxhntbf scVlng, (Src ptoperh/ intrusfed fit their care. ^ s. 77 '• Whosoever, being a banker, merchant, broker. " attorney, or agent, and being intrusted, either solely, or ''jointly with any other person, with the property of any " other person for safe custody, with intend to defraud, sells, • negociates, transfers, pledges, or in any other manner con- '• verts or appropriates the same or part thereof, to or for liis •• own use or benefit, or the use or lienefit of any person '• other than the person by whom he was so intrusted, is •guilty of a misdemeanor, and shall be liable to any of tlie '' punishments which the Court may award as hereinbefore ■• last mentioned." I I \ : t, 40 JURISDICTION OP THE QUARTER SESSIONS I'erso/is under jwivers of attorney fraudulently selling property. a. 78 " Whosoever, being intrusted, either solely or jointly '* with any other person, with any power of Attorney, for '' the sa'e or transfer of any property, fraudulently sells or '• transfers, or otherwise converts the same or any part '' thereof to his own use or benefit, or the use or benefit of '' any person other than the person by whom he was so '' intrusted, is guilty of a misdemeanor, and shall be liable to " any of the punishments which the Court may award as '' liereinbefore last mentioned." Factors ohtaining adoances on the property of their prin- (ipals. i'lerks wilfully assisting. Prot'iso, as to cases excepted when the pledge does not erveed the amount of their lien. s. 70 ' Whosoever, being a factor or agept intrusted, either •• solely or jointly with any other person, for the purpose of ■ sale or otherwise, with the possession of any goods, or of •• any document of title to goods, contrary to or without the '• authority of his principal in that behalf, for his own use or '' benefit, or tlic use or benefit of any person, other than •• the f)erson by whom he was so intrusted, and in violati(>n " of good faith, makes any consignment, deposit, transfer or '• delivery of any goods or document of title so intrusted • to li'un as in this section before mentioned, as and by way "of a pledge, lien or .security of any money or valuable •* security, borrowed or received by such factor or agent at or •' before the time of making such consignment, deposit, transfer " or delivery, or intended to be thereafter borrowed or • received, or contrary to, or without such authority, for his " own use or benefit, or tlio use or benefit of any person JUR18DI0TION OP THE QUAKTER SESSIONS. 41 'other than the person by whom he was so intrusted, and '' in violation of good faith, accepts any advance of any •• money or valuable security on the faith of any contract or '' agreement to consign, deposit, transfer or delivery of any '' such goods, or document of title, is guilty of a misde- '• meanor, and shall be liable to any of the punishments " which the Court may award as hereinbefore last men- •' tioned ; and every clerk or other person who knowingly " and wilfully acts and assists in making any such consign- • ment, deposit, transfer or delivery, or in accepting or •' procuring such advance as aforesaid, is guilty of a misde- • meanor, and shall be liable to any of the same punish- • ments ; Provided that no such factor or agent shall be •liable to any prosecution for consigning, depositing, trans- • ferring or delivering any such goods, or documents of title, • in case the same are 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 consignment, deposit. •' trau.sfer, or delivery, was justly due and owing to such • agent from his principal, together with the amount of any •' bill of exchange drawn by or on account of such principal, •' and accepted by such factor or agent.' Dcjiiiltions of terms : {^trusted, pledge, possessed, loan ui- (idcance, contract or agreement, advance. Possession to be evidence of intrusting. s. 80 '' Any factor or agent intrusted as aforesaid, and • possessed of any such document of title, whether derived • immediately from the owner of such goods, or obtained by • reason of such factor or agent having been intrusted with ■ the possession of the goods, or of any other document of title thereto, shall be deemed to have been intrusted with ■ the possession of the goods represented by such document ! f ■ *■ l\ i I m\ ! ! * im I ! • . i I 1 't. ! ;!i 42 JfRlSDlCTION OF THK QUARTER SESSIONS. '• of title ; aud every coutract plcdgiug or giving u lien upon " Huch document of title as aforesaid, shall be deemed to be " a pledge of and lien upon the goodn to which the same 'relates; and suchj factor or ngent shall be deemed to be " possessed of such goods or document, whether the Bame '• are in his actual custody or held by any other person Hub- '• ject to his control, or for him, or on his behalf; and where " any loan or advance is houci fide, made to any factor or '- agent intrusted with and in possession of any such goods '• or document of title ; on the faith of any contract or agroe- '• ment in writing to consign, deposit, transfer or deliver such '' goods or document (»f title, and such goods or document •'' of title is or are actually received ))y the person making '• such l*hip of persons, the " person by >Yhom 8uch thing i.s actually done, or who con- " nives at the doing thereof, ^hall be deemed guilty of the • offence, and not any other person." Ccvtain misdcmmnors not triahh at tSessiuns. s. 92 '• No misdemeanor against any of the sixteen lust '• preceding sections of this Act .'1(T10N Op THE QUARTER SESSIONS. •• other ira(»l or place of eoutiuement for any term less than •• two veins, with or witliout hard labour and with or without •• ."iolit.'irv continenient." ('tfiisiiuf (fiDtpowdfr to explode, or sending to ani/ peraon an rrp/oslre substance, or throwing corrosive fluid on a person vit.h intent to do grievous bodily harm. .«^. 2H '• Whosoever unlawfully and maliciously causes any •• ji;un]»owder or other explosive substance to explode, or send.s '• or delivers to, or causes to be taken or received by any - person, any explosive substance, or any other dangerous or • iKtxiou.s thing, or puts or lays at any place, or casts or •• throws at or upon, or otherwise applies to any person, any '• corrosive fluid, or any destructive or explosive substance, '' with intent in any of the cases aforesaid, to burn, maim. *• disfigure or disable any person, or to do some grievous "' bodily harm to any person, whether any bodily harm be *' effected or not, is guilty of felony, and shall be liable to be •' imprisoned in the Penitentiary for life, or for any term " not less than two years, or to be imprisoned in any other " gaol or place of confinement, for any term less than two " years, with or without liard labour, and with or without *' solitary confinement." Placing gmqwwder near a building, with intent to do bodily harm to any person, s. 29 " Whosoever unlawfully and maliciously places or •' throws in, into, upon, against or near any building, ship " or vessel, any gimpowd(;r or other explosive susbtance. " with intent to do any bodily injury, to any person, whether " or not any explosion takes place, and whether or not any • bodily injury is effected, is guilty of felony, and shall be *' liable to be imprisoned in the Penitentiary for any term '• not exceeding fourteen years and not less than two years. mm JURISDICTION UF THE QUARTER RESilONS. M "or to be imprisoned in any other gaol or plate of confiue- 'ment for any term less than two year**, with or without • hard labour, and with or without solitary confinement," Court of Q. S. not to try certain offencca. 8. 48 '* Neither the Justices of the Peace actinj:^ in and " for any District, County, Division, City or }>lacc, nor any • Judge of the Sessions of the Peace, nor the Recorder of •' any City, shall, at any Session of the I'eace, or at any " adjournment thereof, try any person for any oft'oncc under • the twenty-eighth, or twenty-ninth Sections of this Act." Vide Observations on sections of 32 & 313 Vic. c. 21, (I lite p. 40. Justices in admitting parties to bail or in committing them for trial, should bear in mind the foregoing exceptions to the jurisdiction of the Quarter Sessions, and in all the oases mentioned as excepted commit, or bind over, the jiccuscd for trial before a Superior Court luiving jurisdic- tion.^' • It is impossible to account for the selection by the TiCjcisla- liiro of a great number of the crimes and offt-nces dt'chirod not to lie triable at Quarter Sessions, or to assign any valid reason for excepting from the jurisdiction of that Court the fraud of a ware- liouseman, whilst the heinous crime of removing a rail belonging to a railway off a railway track, or obstructing a railway by placing across it any wood, stone, or other thing, with intent to throw II train ofll' the track, can be tbere iiicd. •^ I 52 JUSTICES ACT, CAP. XXX. An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences." " [Assented to 22nd June, 18fi9.] " WHEREA8 it in expedient to assimilate, amend and consolidate the Statute Lawfs of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, respecting the duties of Justices of the Peace out of sessions in relation to persons charged within dictable olfences, and to extend the same as so conso- Udated to all Canada : Therefore, Iler Majesty. | by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : " The effect of this Statute and ol' 82 k 33 Vict., c. 36, is to repeal the Statute Liiw.'^of theseveriil Provinces of Quebec. Ontario, Nova Scotia and N(W Brunswick, rcspeetiug tho duties of Justices of the Peace out of sessions, in relation to persons charged with indictal)lo offences, and to substitute in the room and place (»f those Statute Laws, the provisions of this Act. 1. '* In all cases where a charge or complaint (A) is made before any one or more of Her Majesty's Justices of the Peace for any Terri- torial Division in Canada, that anv person has •■^IWJIW" JUSTICES ACT. 53 committed, or is suspected to have committed, any treason or felony, or any indictable misde- meanor or oH'ence within the limits of the jurisdiction oi' sucli Justice or Justices of the Peace, or that any person g'uilty or suspected to be guilt^^ of haA'inii committed any such crime or ofl'ence else\vh(Me out of the jurisdiction of such Justice or .lustices, is residiu;^ or being, or is suspected to residi* or he within the limits of the Jurisdiction of such Jiistice or Justices, then, and in every such case, if the person charged or complained against is not in custody, such Justice or Justices of the Peace may issue his oY their Warrant (H) to apprehend such person, and to cause him to 1)0 brovight before such Justice or Justices, or any other Justice or Jus- tices for the same Territorial Division." This «octif;a i aliiuist a copy word for word of the first j.art of ^ 1 of tlie Imperial Statute 11 & 12 Vic, c. 42. Any Justice of tlio i*»>a((> fi»r any Territorial Division in Canada hsi.s, under tiiis section, power on a charge or com- plaint in writin*!; (according to the Form A in the Appen- ilix). on the oath or affirmation of any credible person being made before him. that any )n.'rson has committed or is sus- l>octed to have committed any treason, felony, or indictable iiii^lcmeanor or oftenee within the Territorial Division for wliioh sueh Ju.stice of the Peace has been appointed to issue lii.^ warrant (in the Form B in the Ap^wndix). to apprehend .inrl to cause to be brought Ijcfore him or any other Justice <»r Justices for the same Territorial Division, such perBons. and in all c«ses where mc\\ charge or complaint is made ^7 54 JUSTICES ACT. t\ i I i l» i t I! I ■ i : . . ; ii I M-' heforo a Justice of the Peace, that any person guilty or suspected to be guilty of having committed any such crime or offence elf^where out of the Territorial Division for which such Justice of the Peace has been appointed, but within the Dominion of Canada, is residing or being, or is suspected to reside or be, within such Territorial Division, such Justice may issue his w^arraiit (in the Form (B) in the Appendix). In the former case the Justice of the Peace can issue his warrant, tliough the party charged may have left the limits of his Territorial Divi'uou, in the latter case he can issue his warrant, although the offence charged may have been com- mitted in a Territorial Division of Canada, other than that for which he has been appointed. In both cases the warrant i.ssues .^olely in the event of the party charged or complained against not being already in custody. In irh'ff CitHrs the jnnti/ may he sutnuioned instead of issuiug a warrant in the first instance. Warrant if summons is disohryed. Proviso. 2. lu all cases the Justice or Justices, to whom the charge or complaint is preferred, instead of issuing in the first instance his or thtir Warrant to apprehend the person charged or complained against, may, if he or they think fit, issue his or their Summons (C) directed to such person, requir- ing him to appear before the Justice or Justices, at the time and place to be therein mentioned, or before such other Justice or Justices of the same Territorial Division as may then be there, and if, after being served \vith the Summons in manner i 1 Jl'STICES ACT. 55 hereinatter mentioned, he fails to appear at such time and place, in obedience to such Summons. the Justice or Justices, or any other Justice or Justices of the Peace, for the same Territorial Division, may issue his or their Warrant (D) to apprehend the person so charged or complained against, and cause such person to be brought before him or them, or before some other Justice or Justices of the Peace for the same Territorial Division, to answer to the charge or complaint, and to be further dealt with according to law ; But any Justice or Justices of the Peace may, if he or thev see lit, issue the Warrant hereinbefore ih'st mentioned, at any time before or after the time mentioned in the Summons for the appear- ance of the accused party. Ill all cases the Justice or Justices to whom is preferred the chari»e or complaint has the option of issuing a summons to appear or a warrant to apprehend, but in no serious case should the summons be issued, as thereby an opportunity of I'vading justice is af!brded to the party charged. A summons can only issue upon an information or com- plaint in writing sworn to or affirmed either by the informant or complainant, or by some witness or witnesses in that behalf, except only in cases where by some act or law it is specially provided that the information may be by parole merely, and without any oath or affirmation to support or substantiate the same;* but even in those excepted cases • In England it is not neccBRury, where it is intended to isaue n summons in the firnt instance, that the information or eom- |)laint should he in writing, or be sworn to or affirmed. \'ifie 1 1 i- I'i Vic, e. 42,8. 8. 56 JUSTICES ACT. ^i! tlir .Iiistiee or Juistices may require that the infurmation .shall be in writing if they deem it expedient. (Vide s. 19.) The summon.s so i.«sued must be directed to the party charged or complained again.st, should state in a summary way the matter of such charge or complaint, and should require the party to whom it is directed to be and appear at a certain time and place therein mentioned, before the Justice who issues the sunmions, or before such otlicr Justice or Justices of the Peace for the same Territorial Division as may then be tlicrc, to answer to the said charge, and to be further dealt with according to law, (Vide Form (C). The summons must be in writing, and must be signed by the Justice or Justices issuing it. and sealed by him or them. (T7(/rs. 13.) A constable or peace officer alone can serve such suumioiif?, the service is effected in such case by the constable or peace officer delivering to the party j)ersonally the original writ of summons, or if the said party cannot be conveniently met with, by lenving the same for him with some person at his last or usual place of abode. It is to be remarked that where the service is not personal, but is at the last or usual place of abode of the party summoned, care must be exercised by the constable or peace officer serving, not to leave the summons with a child of tender years, or with a person un- likely to deliver it to the party to whom it is directed.* (]7(/<>s. 14.) If after due service of such .summons, the party to whom it is directed docs not appear at the time and place for his appearance therein mentioned, the Justice or Justices then and there being, may cause the constable or peace officer • Glem> Jervis Aci», p. 18. JC8TICKS ACT. 57 who made the service, to depose before him or them as to the mode in which it was effected (vide s. 15), and there- upon may issue his or their warrant to apprehend the party charged in the Form (B), and bring liini betbre liim or them or before some other Justice or Justices of the Peace for the !5 house or other phico then is. heiore the Jiistiee iiTanthig the Avnrraiit or some other Justiee tor the same Territorial Division. Ill many ciiscs. by means of a Scaicli Wairant. lUdnl' of the y the discovery of the j^oods in liis jMiSKession. and tlje warrant itselT contaiiiini: tlie nuthoritv to arrest the possessor, it is a mn'-h ))etter mout it in force, to .-ni aetion ol damaj^'cs, ( Klsee is. Smith. L' Chit. .'5(1 1.) In all cases where a Search Warrant issues, the pnisecntor or som(! other per.son who can identify tlie piods specitied in the warrant, slnndd accompany the constable m.-ikinj.; the >earG .ILbTlCEt? ACT. Siil Summons (V) shall ])o directed to the party so chariiod by the iiii'ormation, and shall state sliorily the matter oi* snch inlbrmation, and shall locjuire the party to \vhom. it is directed to be and appear at a certain time and place therein mentioned, beibre the Justice ^vho issues the Summons, or before such other Justice or Justices ()[' the Peace lor the same Territorial Division as may then be there, to answer to the charge, and to be further dealt with accordini? to law."' JIow Sinnmoiis to he scri'cd. 14. Every such Summons shall l)e served by a C\)nstable or other peace olficer upon the l>erson to whom it is directed, by delivering the same to the party personally, or if he cannot conveniently be met with, then by leaving the same for him with some person at his last or usual place of abode." 16. The Constable or other peace officer who serves the same shall attend at the time and place, and before the Justice or Justices in the Summons mentioned, to depose, if necessary, to the service of the Summons." fj' piii'fi/ sionmoufd ihits not oftouf, Jitstlcr, juoj/ tssnr o n'lirroitf. 16. If the per.-«on served does not appear b»»fore the .Justice or Justices, at the time and place mentioned in the Summons, in. obedience to th* same, the Justice or Justices may issue .irsTICEs' ACT. Ills or (heir AVarraiit (D) lor apprehending I lie party so summoned, and ))riiigini^' him beibre him or them, or before some other Justiee or Justices ibr the same Territorial Division, to answer the charge in the information and com- plaint mentioned, and to be I'urllnM- dealt with accordinii;' to law." Vide observations on s. 2. mifr p. 'u. Wnrrauf to apprchfiid jKtrt'nti fo />« innh r IIk /minf itmJ sfiiJ n/ tlnsticr : and tn }rho)a (iddrrssrd. dr. 17. Every "VVarranl (B) hereafter issued by any Justice or Justices of the peace to apprehentl any person charged with any indictable ollence. shall be under the hand and seal, or hands and seals, of the Justice or Justices issuing the same, and may be directed to all or any of the Constaldes or other jioace oflicers of the Terri- torial Division Avithin which the same is to be executed, or to any such Constaldo and all other Constables or peace officers in thi- Territorial Division within which the Justice or Justices issuing the same has jurisdiction, or generally to all the Constables or Peace Oificers within such last mentio]ied Territorial Division; and it shall state shortly the ollence on which it is founded, and shall name or otherwise d«\scribe the oIleiKhM*. and it shall order tlit* persons or persons to whom it is directed to apprehend the olfender. and bring him beibre the Justice or Justices ihsuing the Warrant, or l)elbre some other Justice or Justices fiS .ir«TirEs ACT. \l I (>! Ihr rt'iU'p lor Ihc sain*^ Territorial Division, to Miiswcr to the charge coiitaiuecl in tiio information. iUid to 1)0 I'urihor dealt wilh according- to law. Wtiniiiif iiiiiii rvm'iln in fi)i-<( until ci'mitrt/. 18. 1 1 siia 1 1 not bo nocossary to make the warrant rotiirnM])le at any particular time, but the same may remain in lorco untalile by nani«- it can only he executed hy him. hut il' thf direction he urisoner save by takinur him before a a inaLiistratc. ('1 Hawk c. III. s. 7.) //iiir mill irln r< o >: iiiritiif Di'fJ/ /"' ixii'Htiil, 19. Such Warrant may bo executed by appro- hendino- iho olleiider at any j>lace in the Territo- rial nivisiou within wliiehthe .Tu.stice or Justices is.siuno tlu' same have jurisdiction, or in case of fresh ])ursuit, at any i)lac(^ in the next adjoininj^' Territorial Division, and \yithin seven miles of the border of thelirst mentioned Territorial Divi- sion, without havinii" tlio A\'nrranl l)acked,as hero- inailer mentioned. 'I'iifce is no necessity. ..u|))x>sin;^ the person <"hargcd has »'«ic:n»ed into an adjoinini: Territorial Division, to have the Wai'rant backed \^\■ to placv it in the hands of ;i constable of JL'STK'KS ACT. G() the Divif^ioii into wliuli lu' has so oscajtcd wlioii tlio place wlioreiii ho n*. lies within tlio :\ L. .1. l{. (N. S.) (\ IV 1 H ; U.-. vs. SaftVon W'aMoii. \) {^. \\. 7<1 ; l>ui'..inaii v. WalktT 7) .lur. (N. S.) OTO). .\11 Warrants lor indictable otl'eiu-es can be exe iiirisdiction. aiiv Constable or other Peace Oilicer lor any phxce within .sncli Territorial Divi- sion may execute the Warrant at any place within the jurisdiction ibr which the Justice or Justices acted when he or they granttnl such Warrant, in like manner as ii' tlie "Warrant had been directed sjiecially to such Constable byname, and notwith- standing" the place within which such Warrant is executed be n(?t within the place ibr which he is Constable or I'eacc' Oihct'r. !'«'(/« (d)Hervations on s. IS. l lie sliouM ^in on with the examination of witnesses and it' an indictable ofi'enee be thereby discU)sed, he may, ii' the [>arty charged in his opinion lias been deceived or misled, on the re(|uest ol" the party so charii,ed. adjourn the case to some luture day. and remand the pirty or admit him to bail a^^ mentioned in ss. H . 42. II. * Ri (fiil(it'n)iis (Is fo till' htirkimi /*/' ii'/iri'ints. I\(}\rt i)f' siii/i /mr/iiiii/. 23. If the person against whom any Warrant has been issued, cannot be found within the juris- Jl'STICES APT. 71 diction of th«^ .lusiico or Justicos ])y whom the same was issued, or if ho escapes into, or is sup- posed or suspected to be, in any ])iac(^ within Canada, out oi' the Jurisdiction oi' the Justice or Justices issuing the Warrant, any Justice of th*» Teaco within the Jurisdiction oi' whom the person so escapes, or in which he is or is suspected to bo, upon proof alone being* made on oath or afRrma- lion of the handwriting of the Justice wlio issued the same, without any security l)eing given, sliall make an endorsement (K) on the Warrant, signed with his nami', authorizing the cx endorsed, to execute the same in such other Try- ritorial Division, and to carry the person agaiiisl whom the AVarrant issued, when apprehended, before the Justice or Justices of the IVace who lirst issued the Warrant, or before some other Justi(!e or Justices of the Peac(^ for the samt* Ter- ritorial Division, oi beibre some Justice or Justices of th(5 Territorial Division, in which the ollence mentioned in the Warrant a])pears therein to have been committed. The oiulorsoiiiont |)invit mentioned Division the ]K'rs«in so (diariicd. />//// // "/ rniistidilf III iiisr iif ilfiisf. 24. I r tin* Prosccutov or any oi" Ilic w iliu'sse.s lor ilh' prosL'Cutioji !)(» ihon in the 'I'cvritorial Division wiu^rt* such ])crsuii hns hccii j\]>pivluMitU'(l, the. Coiistahlo, or otlicr person or persons Avho have nppreheuded him may, il' so directed by Ihe.liistice l)aed to have been com- mitted in another Territorial Division than that in which such i)ersons have been apprehendid. The person so arrested cannot he l»rou_uht before the .J us- tii-i' who hacked the warrant or anv other .lustiei- of the .IISTU'ES ArT. ".] Division witliiii wliieh Midi warrant was hacked, iinloss tlio warrant be specially indorsed re(|iiirini; the constable In brin*; the ))arty liefbre the .In.stiee indorsinjr. The mndc of ]>roceedini: in case Mich person apprehended h(> brought betbre a .Justi,.t' kI' ih<' Division within which the warrant oj' ;ipprchcn>inii li;i> been backed i- pninicd out l>y V Kl. s. 17. l*(nrti tn ./ifsfiiis fn an iii IlK.ii fifiuss fn ntfrntl. mnl (flip. I I nil III r. 25. 11' ii be uuule to a])peav to any .lustiec cd' llu' IVmkjc, l)y the oath or uliirination ol' any crecli- la]>l(' person, that any ])orson within the Dominion is likidy to oiyo material eviden(u» for the proseeii- lion and ^vill not vohintarily appear lor the i)ur- l)u.se of heini»' examined as a, ^vitness at the time nnd [>laee appointed lor liu' examination ol' th»' witnesses aL»ains1 the accused, sucdi Justice shall issue his summons (1. 1) to such person, requirinu- iiim lo he and appmir at a tinu; and place therein menlioned, before tln^ said Justice, or ])erore such other Justice or Justices of the Peace for the same Territorial Division as may then ])e there, to testily what lu^ knows concerninu- the ehariie made against the accused party. // yiini niniis In not n/iti/ii/. irnrrniit 111111/ In issinil fit riiili- jul iiff{.'iii/. '-k 1.0 I.I "IB IM '■ lU 112,2 SI36 12.0 1.25 1.4 1.6 •^ 6" — *- p*. %/ %i ^a '^? ^ <9 / /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 % w- w. % 76 .TL'STICES ACT. lor sucb. reUisal, any Justice of the Peace then present and there having jurisdiction, may, by Warrant (L 4), commit the person so refusing to the Common Goal or other place ofconfinement,ibr the Territorial Division where the person so relu- shig then is, there to remain and be imprisoned for any time not exceeding ten days, unless he in the meantime consents to be examined and to answer concerning the premises. The ([uestiou of just excuses, offered by a person suiiiiiioiie«l as a witness or brought up by virtue of the Virarrants provid- ed for by s. 20. s, 27 for refusing to be examined upon oath or affirmation, or to take sucli oath or affirmation, or to answer (justions put to him pending his examination requires some attention : 1. The husband cannot give evidence for or against liis wife ; the wife canuot give evidence for or against licr husband ; so that if either husband or wife be the party charged with an indictable offence the other conjoint cannot be examined as a witness in the proceeding, save and except in those cases where tlie ofl'ence is committed on the person of th- one by the other spouse; 2. Idiots and children of such tender years as to be ignorant of the obli- gations of an oath canuot be examined as witnesses ; 3. A person canuot be compelled to answer ariy question tending to criminate himself or herself, (ride ante p. 20. Confession Privileged Com. Attys Gov. Secrets). 4 A priest cannot be forced to reveal the secrets of the confessional ; this is especially true of priests of the lloman Catholic faith, but many cases can be cited where judges have refused to force Protestant clergymen to reveal secrets confided to them by penitents in confession as recognized by JUSTICE!? ACT 77 the Cliurcli to which the miiiif belonjiod (rldr T.-iylor on p]v. Powell on Ev. for other cajf the facts constitutinu the charge against him made spontaneously without threat, promise, or imUicemeut from any person in authority or person directly injured by the crime, are admissible; so are confessions nu»de to ft person not in authority, under the influence of such promise, threat, or inducement, madi' or held out liy any jierson not in authority. A constable, a master or mistress whose chattels for instan- ce have been stolen, a magistrate are all persons in authority (Oke's 3lagisterial Syn. p. 81. S and note l(i; Stones Petty Sess. 12:i). Any statement made by the accused before the magistrate during the ii»vestigation and examination ami previous to tlie JUSTICES ACT. 83 cloHC of the latter, unless induced by promises or threats made by person, in authority, can be given in evidence. (Keg. vs. Stripp. 1 Dears. CC. p. (U8). Any fact discovered in consecjuence of information obtained by a promise, threat, or inducement may be given in evidence. (Rex. vs. Warwickshall 1 Leach 2G3). Place of examutatloii nut mi ojxit (.'oinfy oml no pt rxon to renw'in vithoiit permission. 35. The room or building- in which the .Fustiee or Justices take the examination and statement shall not be deemed an open Court lor that pur- pose ; and the 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 buildinji' without the consent or permission ol such Justice or Justices, if it appear to him or them that the ends of justice will be best answered by so doing. This clause is based upon the idea that preliniii»ary inves- tigations are but ministerial acts of the Justice. No excej)- tion is made in favor of the Counsel or Attorney of the accused who can be excluded if the Justices see lit ((!ox vs. Coleridge 2 I), k U. 80 ; Hex vs. Borrow 11 B. i\: A. 432; Rex. vs. Staffordshire J J. 1 Chitty 218; Collier vs. Tlicks 2 B. & Ad. 063). On this point the observations of 31r. Saun- ders are so much to the purpose that they are hero reproduced. *• Under the provisions of this clause, therelbre. theJu.stices ■' have power to conduct their proceedings in private, and to •• exclude all persons even including the professional advisers '• of cither of the })artit's. The section seems certainly to • contemplate that the exclusion will only take place when it • shall appear that the ends of Justice will be best answered . 11 M ! 84 JUSTICES ACT. " by it, but it is difficult to conceive any pof^siblc case in which " the ends of justice can best be answered by refusinp; an '* accused party the aasist.ince of a legal adviser. •' As the lav/ now stands the depositions of the witnesses ' taken by the nia!j!;istrate are receivable in evidence on the trial '* in the event of the death of such witnesses, or their bein<; '• too ill to travel, the importance therefore to the accused of '• being enabled to cross-examine through the agency of a " legal adviser, is as obvious as it is great. Common Justice •• declares that at a time of such peril as that of the exanii.ia- '• tion oi' the witnesses by the connnitting justice, the accused •• i«irty ought not to be deprived of legal professional assistance. •* There is really only one argument of any apparent weight that " can be advanced in opposition to the permission suggested, •• and that consists in the possibility of the professional advi.ser •' taking advantage of what may transpire in the justice room '■ to warn others not yet in custody, or otherwise to defeat the <* ultimate ends of Justice. This argument however, becomes " puerile in the extreme, when it is remembered that counsel "• and attorneys are members of a honourable profession, and are directly amenable, in cases of professional obliquity to '' the all powerful censure of the superior courts, and would •• therefore scarcely lend tliemselves to a proceeding which must ■' necessarily result in their disgrace and ruin- But whether '• or not the interests of the public might be endangered is a " consideration of trivial importance, when the sacred cause of •'justice to an accused is involved, indeed it may well be " questitfiied if justice to the public can ever be promoted by " doing injustice to any one of its members. It would seem •• however that the omission of the Legislature in the 11 and " 12 Vict. c. 42, to make an exception in favour of the legal '' advisers of the accused, was more accidental than intentional, u jrSTIPES APT. 85 - forupon attention hc'iw^ ilr.iwn to tliis omission in the statute. •- the Legi.«,lature in the corro>;pons which is to be attributed to inadvertency since there •• cannot be any possible reason for giving to a prisoner in Ire- "land a right which is debarred to a pri.sone; in England. •• In practice it rarely occurs that citlier the prosecutor or the -• prisoner is prohibited from having the assistance of a profes- •* ^onal adviser, and wlien the pressing reasons f«n- permitting *• the assistance coupled with the partial recognition of the *• practice as contained in the 17th section, which section direct- •• ly refers to the cross-examination of the witnesses by the "C-ounsel or attorney of the accused are taken into considera- ^' tion it is hoped that no bench of nigistrates will ever refuse ••an application of the kind." Poicer to hind over the 2^i'OiiC('ntors (did vifncsscs. 36. Any Justice or Justices, before -whom any witness is examined, may bind by Recognizance (O 1) the Prosecutor, and every such witness, (except married women and infants) =^ who shall •The words "except married woman and infants who hIi.'iII find sfecnrity for their appearance! " shouhl it is sid>mitted form the jKirenthesis not merely the words " except married womtii find infant-s" ; it is to .say tlie least of it very douhtful wliothcr the persional recognizance of a married woman or an infant is valid and therefore if the words relative to security be considered as applicable solely to minors and married women, the first por- tion of s. 36 becomes intelligible, otherwise construed itisconfu.sed. 86 JL'fSTICEs ACT. ht liiid .security lor thoir appearance, if the Justice or Justices see lit, to appear at the next Court of competent Criminal Jurisdiction m which the accused is to ))e tried, then and there to prosecute, or prosecute and qive evidence, or to give eviden- ce, as the case may be, against the party accused, which Recognizance shall particularly specify the place of residence and the addition or occupation ol' each person entering into the same. Iki rrig)i!r:fnirfs tn In siiltsrrihfd to luf Jiisficrs. dr. 37, The liecog)iizance, being duly acknow- ledged by the person entering into the same, shall l)e subscribed ])y the Justice or Justices before whom the same is acknowledged, and a notice (O 2) thereof, signed by the said Justice or Justi- ces, shall at the same time be s'iven to the person bound thereby. Ill fdnutZ'Hircs to Itr trunxiii i(fO(? fn f/ii (/ntnf in irjn'rji thr fii'i/ is to ht: Ik 1(1. 38. The several Recognizances so taken, toge- ther with the written information (if any), the depositions, the statement of the accused, and the Recognizance of Bail, (if any) shall be delivered ])y the said Justice or Justices, or he or they shall cause the same lo be delivered to the proper Offi- cer of the Court in which the trial is to be had, })efore 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 jireside at such Court, or at the trial orders and appoints. \\'Stsss£s:!iVss. .ir.sTICK.S ACT. S7 The witiit'ssps MIC to 1h' Ixmiul over )>v tlu' roco^niziiiiot's to jip))oar iit tlu! uoxt Court of (•(unpotciit Oriininal Jiirisdi*-- tion at wliicli tho acciiscd is tn Ix' tiicfl. I7J» (»l)sorvati(»n.»< on s. 52 and s. .')(!. The rct'oiiiiizanccs inti'iiound assent to lint do not sign the recognizances, the Justice alone affixing his signature thereto, and the notice is tlien given in the form (() 2) to the prosecutor or witnesses ; t-are must l)e taken to suit the recognizance to the situation oi' the party houml according to the variations of the form(() 1 ). in Quehec as all pr(.>secutions are conducted hy (lovern- nient, hinding over the so called prosecutor to prosecute is in almost every case an onpty forni. n ifufn.s r'jKfiinfi /o riitir infn ficiKjiirji iK'i s nnii/ In faiii' m It ted. 39. [1' any witness voluses to onter into Jlocogni- zance, the .luslice or Justices of the Peace by his or their AVarrant (P ],) may commii him to the common Gaol lor the Territorial Division in which the accused paity is to be tried, there to be impri- soned and sal'ely kept until alter the trial ol' such accused party, unless in the meantime such witness duly enters into Kecognizance belbre some one Justice of the Peace lor the Territorial Division in which such Goal is situate. Dlsrhnrgr /or n'tnif o/' cridriivf. dc 40. It' afterwards, for want of suilicient evidence 5J8 JCSTICES ACT. in that behali' or other cause, the Justice or Justi- ces before Avhom the acccused party has been brought, do not commit him or hold him to bail for the offence charged, such Justice or Justices or any other Justice or Justices for the same Ter- ritorial Division, by his or their Order (P 2) in that behalf, may order and direct the Keeper of the gaol where the witness is in custody, to discharge him from the same, and such Keeper shall there- upon forthwith discharge hhn accordingly, In the event of a witness so committed notifying any Jus- tice for the Territorial Division within which he is impriso- ned of liis willingness to enter into the Recognizance provid- ed by s. 3G, it is the duty of such Justice to receive such Recognizance. Power to Justice to remand the accused from time to time not exceeding eight dai/s bi/ warrant. 41, If from the absence of the witnesses, or from any other reasonable cause, it becomes neces- sary or advisable to defer the examination or fur- ther examination of the witnesses for any time, tiie Justice or Justices before whom the accused appears or has been brought, may, by his or their Warrant (Q 1) from time to time, remand the party accused for such time as by such Justice or Justices in his or their discretion may be deemed reasonable, not exceeding eight cleqr days at any one time, to the common gaol in the Territorial Division for which such Justice or Justices are then actinor 'f - ^ - ju^'iijlfco-ft til < ■ > * J r ST ICES ACT. 89 Or for thrcr dai/s hij verbal order. 42. If the remand be for a time not exceeding- three clear days, the Justice or Justices may ver- bally order the Constable or other person in whose custody the accused party may then be, or any other Constable or person to be named by the Justice or Justices in that behalf to keep the accu- sed 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 continu- ing the examination. But accused may he hrougJit up at an earlier daij. 43. Any such Justice or Justices may order the accused party to l)e brought before him or them, or before any other Justice or .Justices of the Peace for the same Territorial Division, at ony time before the expiration of the time for which such party has been remanded, and the Gaoler or Offi- cer in wiiose custody he then is, shall duly obey order. - " The Justice making the remand alone can order, before tlic expiration of the time for which the accused has been remanded that lie be broujiht before him or some other Justice. Pttrfi/ accused mai/ he admitted to hail on rceognizances. 44. Instead of detaining the accused party in custody during the period for w^hich he has been so remanded, any one .Justice of the Peace before whom such party has appeared or been brought, may discharge him. upon his entering into a I?eco- I 90 JUSTICES ACT. li'iiizance (Q 2, •),) with or Avitlioui a surety or saireties, at the discretion of the Justice, condition- ed for his appearance at the time and place appoint- ed for the continuance of the examination. IJy tlic terms of this enactment it is entirely in the Justi- ces' discretion in every case whetlier he will allow the accused to jz;*) on bail during; an adjournnient of the liearintr. Tt is otherwise when the Justice has coniph'ted the examination and committed for trial, for then (as will he seen by s. 52. 5(1) tlic accused is in cases of misdemeanor entitled to bail, but in felonies lie is not m entitled. As a gi'ncral rule it may be said that in practice it is not usual on a remand (especially where the ])i'ecise natui'e or extent of the chavire is undevelop- ed) for magistrates to admit to bail in tlioses cases in which an accused is not entitled to be l)ailed after comnuttal. unless the amount of property invc>lved is very small; inr»ther case.s it is (in great part from Oke's Syn.p. 80(1. n. '{). // fill' arciisiiJ iI(t(S imt (inncar itiwoi'ili iXj (o'liis iirnqnj- r.itiirr.'-i. 45. If "ht before a Justice or Justices of the Peace in the Territorial Division wherein such Justice or Jus- tices have jurisdiction, charged with an oftence alleged to have been committed l>y him within any Territorial Division in Canada wherein such Justice or Justices have not jurisdiction, such Justice or Justices shall examine snch witnesses and receive such evidence in proof ol' the charge as may be produced before him or them within his or their jurisdiction ; and if in his or their opinion, such testimony and evidence l)e suflicient proof of the charge made against the accused party, the Justice or Justices shall thi'reupon com- mit him to the Common Groal for the Territorial Division where the ofl'ence is alle"'ed to have been committed, or shall admit him to bail as herein- after mentioned, and shall bind over the prosecu- tor (if he has appeared before him or them) and the witnesses, by recognizances ns hereinafter mentioned. In all cases where the prosecutor and witnesses are in attendance, the Justice before whom the accused appears or is brouiiht. althouuli the crime of which he is accused may have I I 92 justices' act. been committed iu another Territorial Division wherein the Justice has no jurisdiction, can proceed with the investigation and commit or bail the accused in the same way as if the oflbnce had been committed in the Territorial Division in which lie has jurisdiction ; save that the committal must be to the Common Goal for the Territorial Division within which the offence was committed, and the bail be to appear before a Court having jurisdiction over such last mentioned Division, (cide s. 24.) The Justice before whom the accused should have appeared may also issue his warrant for his apprehension as if no previous hearing of the case had taken place, (ante s. 1.) And if evidence he not deemed sufficient, it majj he trans- mitted to the j)roper division, d-c. Wheir he maij he committed for trial or he haih'd. 47. If the testimony and evidence be not, in the opinion of the Justice or Justices, sufficient to put the accused party upon his trial for the offence with which he is charged, then the Justi- ce or Justices shall, by recognizance, bind over the witness or witnesses whom he has examined to give evidence as hereinbefore mentioned ; and such Justice or Justices shall, by "Warrant (R 1), order the accused party to be taken before some Justice or Justices of the Peace in and for the Territorial Division where the offence is alleged io have been committed, and shall at the same time deliver up the information and complaint, and also the depositions and recognizances so taken by him or them to the Constable who has the execution of the last mentioned "Warrant, to be bv him delivered to the Justice or Justices JUSTICES ACT. 93 ;ti- er id lie le iO IS to before whom he takes the accused, in obedience to the Warrant, and the depositions and recogni- zances shall be deemed to be taken in the case, and shall be treated to all intents and purposes as it' they had been taken by or before the last men- tioned Justice or Justices, and shall, together with the depositions and recognizances taken by the last mentioned Justice or Justices in the matter of the charge against the accused party, be transmit- ted to the Clerk of the Court or other proper Offi- cer where the accused party ought to be tried, in the manner and at the time hereinbefore mention- ed, if the accused party should be committed for trial upon the charge, or be admitted to bail. If the testimony and evidence be not sufficient to put tlic Mccused party upon his trial, the Justice cannot discharge him ])ut must order him to be taken before some Justice or Justi- ces in and for the Territorial Division within which the offence is alleged to have been committed, sending all the papers and depositions forming the case before him, by the Constable in charge of the Warrant, to be delivered to the Justice or Jus- tices in such other Territorial Division before whom the accu- sed may be brought. On the prisoner being brought before a Justice of the Ter- ritorial Division within which the offence is alleged to have been committed, such Justice must regard all such papers and depositions as having been taken and produced before him. Expenses of constnhJe conveying the accused to he repaid him. 48. In case such accused party be taken before the Justice or Justices last aforesaid, by virtue of 94 JUSTICES ACT. said last mentioned "Warrant, the Constable or ether person or persons to whom the said Warrant is directed, and who has conveyed such accused party before such last mentioned Justice or Justi- ces, shall upon producing the said accused party before such Justice or Justices and delivering him into the custody of such person as the said Justice or Justices direct or name in that behalf, be entitled to be paid his costs and expenses of conveying the said accused party before the said Justice or Justices. Justice to J'li/iii.sh itjimfoblc irifh n rccclj^tt ur a rtijicatij d'c. 49. Upon the C'uiislable delivering to the ,Ius- tice or Justices the Warrant, information (if any), depositions and recognizances, and proving on oath or affirmation the hand-writing of the Justi- ce or Justices who has subscribed the same, such Justice or Justices before whom the accused party is produced, shall thereupon furnish such Consta- ble with a Receipt or CertiHcate (II 2), of his or their having received from him the body of the accused party, together with the Warrant, infor- mation (if any), depositions and recognizances, and of his having proved to him or them, upon oath, or affirmation the hand-writing of the Justice who issued the AV arrant. (j)ast(ilih' fo (jc jKilJ 1/1/ projii.r oj^h'rr. ' - 50. The said Constable, on producing such receipt or certilicat(i to the proper Officer for paying JUSTICES ACT. 95 id V' such charges, shiul be entitled to be paid all his reasonable charges, costs and expenses oi convey- ing such accused party into such other Territorial Division, and of returning from the same. RcrrninizanccH In rcrfctn r<(S(s. 51. If such Justice or Justices do not commit the accused party for trial, or hold him to bail, then the recognizances taken l^efore the iirst men- lioned Justice or Justices shall be A'oid. Vidt' 7i. 47. J'oicer to uiiji tii'n ,/iisfi'in charg'ed, at the time and place when and where he ought to l)e tried for the otience ; and 96 JUSTICES ACT. ihereux)on the two Justices shall take tlie Reco- gnizances (S 1, 2,) of the accused person and his sureties, conditioned for his appearance at the time and place of trial, and that he will then surrender and take his trial and not depart the ('ourt with- out leave ; and when the offence committed or suspected to have been committed is a misdemea- nor, any one Justice before whom the accused party appears may admit to bail in manner afore- said ; — And such Justice may in his discretion require such bail to justify upon oath as to their sufficiency, which oath the said Justice may admi- nister, and in default of such i^erson procuring sufficient bail, then such Justice may commit him to prison, there to be kept until delivered accord- ing to law. ( Vifle ante as to proper Court for trial pp. 36-51). Superior or i.^onnty JnJye iJi Ills discretion maij Order a [Ktrty commit ted for trial to be admitted to hail. 53. In all cases of felony, or suspicion of felony other than treason or felony punishable with death or felony under the Act for the better protection of the Crown and of the Grovernment, and in all cases of misdemeanor, where the i)arty accused has been finally committed as hereinafter provided, any Judge of any Superior or County Court, having jurisdiction in the District or 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 JUSTICES ACT. 97 IS d party or person to be admitted to bail on entering into Kecognizance with sufficient sureties before two Justices of the Peace, in such amount as the Judge directs, and thereupon the 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. Certain offences nnt hailahle except hi/ Judge s ordtr. 54. No Justices of the Peace, or County Judge shall admit any person to bail accused of treason or felony punishable with death, or felony under the Act for the better protection of the Crown and of the Grovernment, nor shall any such person be admitted to bail, except by order of a Superior Court of Criminal Jurisdiction for the Province in which the accused person stands committed, or of one of the Judges thereof, or in the Province of Quebec, by order of a Judge of the Court of Queen's Bench or Superior Court; and nothing herein contained, shall prevent such Courts or Judges admitting any person accused of misde- meanor or felony to bail when they may think it right so to do. : No Justice of the Peace cun admit to bail ou the clo«e of oxamination any person charged before him with treason, lelony punishable with death or felony under the Act for the better protection of the Crown and of the Government when in his opinion the evidence taken is suflScient to put the per- son accused upon his trial, A Justice of the Pence cnn G 98 justices' act. fODJoiutly with auother Justice of the Peace, when in their opinion the evidence given is sufficient to put the accused upon hiB trial, but does not furnish sucli a strong presump- tion of guilt as to warrant his committal for trial, admit him to bail in any charge of felony, save those above mentioned. A Justice can in all cases of misdemeanor admit the accused to bail. A Justice is bound in cases of misdemeanor to bail, if he refuse bail in such case he is guilty of misdemea- nor, (2 Hawk, e, 15. s. 13), he may also be punished if he admit a person to bail who is not bailable ; but vide Linford vs. Fitzroy 13, Q. B. 240, 3 N. S. C. 444, in which the taking or rejecting of bail was declared to be a judicial act. A Judge of any Superior or County Court, possessing civil jurisdiction in the District or County within which the accused party is confined on final commitment, can order him to be admitted to bail, application being made to him for that purpose, on entering into Recognizance as directed by «. 53, in all cases save treason, felony punishable with death, or felony under the act for the better protection of the Crown and of the Government, All Superior Courts of Criminal Jurisdiction, the iudivi. dual Judges thereof and the Judges of the Superior Court in the Province of Quebec, can admit to bail in the respective Provinces in which they have jurisdiction all persons finally committed therein on charges of treason, felony and misde- meanor without any exception. Justice bailing after committal to issue a wurmnt of deliverance, 55. In all cases where a Justice or Justices of the Peace admit to bail any person who is then in any prison charged with the oftence for which he is so admitted to bail, the Justice or Justices shall JUSTICES ACT. 09 send to or cause to be lodged with the keeper of Kuch Prison, 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. 7/ sufficient, to he hailed or committed, Ac Proviso : 56. When all the evidence ottered upon the part of the prosecution against the accused party has been heard, if the Justice or Justices of the Peace then present are of opinion that it is not sufficient to put the accused party upon his trial for any indictable offence, such Justice or Justices shall forthwith order the accused party, if in custody, to be discharged as to the Information then under inquiry ; but if in the opinion of such Justice or Justices the evidence is sufficient to put the accu- sed party upon his trial lor an indictable offence, although it may not raise such a strong presump- tion of guilt as would induce them to commit the accused for trial without bail, or if the offence with Avhich the party is accused is a misdemeanor, then the 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 rais(» w strong presumption of guilt, then the Justice or Justices shall by his or their warrant (T 1,) commit him to 100 JUSTICES ACT. the Common Gaol for the Territorial Division to which he may by Law be committed, or in the case of an indictable olfence committed on the high seas or on land beyond the sea, to the Com- mon Graol of the Territorial Division within which such Justice or Justices have jurisdiction, to be there safely kept until delivered by due course of law ; Provided that in cases of misdemeanor the Justice or Justices who have committed the ofl'en- der for trial, may, at any time before the lirst day of the sitting of the Court at which he is to be })e tried, bail such ofiender in manner aforesaid, or may certify on the back of the AV arrant of com- mittal the amount of bail to be required, in which case any other Justice of the Peace for the same Territorial Division may admit such person to bail in such amount, at any time before such first day of the sitting of the Court aforesaid. It litis been pretended that Justices act but ministerially in preliminary investigations into indictable oifences, but it is clear that under this section they act judicially in deciding- upon the propriety of discharging- or committing the accu- sed or binding him over for trial (Linford vs. Fitzroy 3 N. S. C. 444). Justices ought not to balance the evidence and decide according as it preponderates, for this would in fact be taking upon themselves the functions of the petty jury and be try- ing; the case : but thev should consider whether or not the evidence makes out a strong or probable or conflicting case of guilt ; in the first case they sliould commit, in the second and third they should admit to bail, if however from justices' act. 101 the Hleuder nature of tho ovidoiice. the uinvovtliincHvS of the witnesses, or tlio conclusive proof of innocence produced on the part of the accused hy \\i\y of confession and avoidance, tliey feel that tlie case is not sustained and tliat if they send it for trial lie must be acquitted, they should discharge tl\e accused. The power to admit to bail under this section it must be remembered is limited by i^ 52. 54. Provisions touching the conveyance o/prisonci'S to gttof. 57. The Constable or any of the Constables, or other persons to whom any Warrant ot Comipit- ment authorized by this or any other Act or law is directed, shall convey the accused person there- in named or described to the gaol or other prison mentioned in such warrant, and there deliver him together with the Warrant, to the Keeper of such gaol or prison, who shall thereupon give the Cons- table or other person delivering the prisoner into his custody a Receipt (T 2,) for the prisoner, setting forth the state and condition of the prisoner when delivered into his custody. What and hoir dcfcndnnt mm/ h*> entitled to fWm'«^iiq«i. lOG JUSTICES ACT. Interpretation. 65. The words " Territorial Division," when- ever used in this Act shall mean County, Union of Counties, City, Town, Parish or other Juridical Division or place to which the context may apply. Forms. 66. The several forms in the Schedule to this Act contained, or forms to the like effect, shall be good, valid and sufficient in law. This section has only the eflfect of legalizing the particu- lar forms contained in the Schedule* to the Act. The justi- <'es may if they think fit adopt any other forms, but so long as the form given in the Schedule is applicable to the case, it would be in the highest degree unwise to depart from it. Commencement of Act. 67. This Act shall commence and take effect on the first day of January, in the year of our Lord, one thousand eight hundred and seventy. SCHEDULES. RKFERRKD TO IN PRICIEDIXO ACT. (A) Vide S8, 1 and 9. (1) INFORMATION AND COMPLAINT FOR AN INDICTABLE OFFENCE. (-anada, Province of , District (or County, United Counties, or ax the en fie mai/ be,) of Tlie information and complaint of C. D. of {j/eoman), talcen day of , in tiie year of our Lord , before the undersigned, {one) of Her Majesty's Justices of the Peace, in and for the said District {or County, or as the case may be,) of (a) who saith that (b) * (tj'c, stating the offence.) Sworn {or affirmed) before (me) the day and year first above nientionoti, at J. s. (a) If a Judge of Sessions, Police Magistrate or Stipendiary Magistrate proper title to be given. (b) If the offender is merely suspected to have committed the offence, and the informant did not see him commit it, insert here : , •' he hath just cause to believe and suspect,'and doth believe and suspect, that" then insert the name of the offender, address, &c., if known, or if unknown, his description as in the note (c) post, which is allowable by s. 17, and then set out th«^ offence. If the offence be committed out of the jurisdiction of the justice receiving' the information, but the offender be residing within it, add, after the description of the offence : " And that the said A. B. is now residing or being (or is supposed and suspected to be residing or to be) at the parisn of , in the said (county), and within my jurisdiction." 108 justices' act. — SCHEDULES. (2) INFORMATION AGAINST AN ACCESSORY AFTER THE FACT TO A FELONY WITH THE PRINCIPAL (not ill Statute, Okes For. p. 487. No. 2.) Proceed as in JVo. I supra, and after describing the offence of t/tf principal, state thus : — and that E. L. of «" :., well knowing the said A. B. to have committed the felony aforesaid, afterwards, to Avit, on the day of instant, at the Parish of aforesaid, feloniously did receive, harbor and maintain the said A, B. i il (3) THE LIKE WITHOUT THE PRINCIPAL OR WHERE PRIN- CIPAL UNKNOWN, (not in Statute, Okes For. p. 487. No. 3.1 Proceed as in No. 1 supra, to the asterisk*, then thus: — that one A. B. of &c., {or some person or persons whose name or names is or are imknown), on the day of , at the Parish of , &c., feloniously did {describe the offence of the ^Hncipal:) — And that E. P. of &c., Avell knowing the said A. B., (or person unknown) to have committed the felony afor«'- said, afterwards to wit, on the day of , iit the Parish of aforesaid, feloniously did receive, liarhor and maintain the said A. B. (or person unkno\^n.) 11. (4) DYING DECLARATION BEFORE A JUSTICE IN CASE OF PERSONAL INJURIES TO THE DECLARANT (not in Statute, Okes For. p. 487. No. 5.) No particular form of this declaration is necessary ; but it may be as Avell to state in this place that its principal ingredients, in order to its admissibility in evidence against a prisoner, are ; — 1. The cause of the death of the declarant must be the subject of the inquiry. 2. The circumstances of the death the subject of the declara- tion. 3. Tt must appear to have been made at a time when the decla- rant (the deceased) was perfectly aware of his danger and entertained no hope of recovery. Tf the accused can be brought into the presence of the person injured, the examination should be taken in the usual form ; but JUSTICES ACT. — SCHEDULES. 109 if otherwise, the declaration, not on oath, should be taken bj a Justice in somewhat like the following form : — " I, C. D. of ' in the (county) of do hereby solemnly and sincerely declare that (here set out the state- ment in the very words used.) Taken before me, nt this day of in the [countif) of , , 18G8. J. s. One of Her Majesty's Justicofj of the Peace for the said (county) of OF in )joct ara- 3chi- rson but \ (B) Sec fi». 1,17. (5) WARRANT TO APPREHEND A PERSON CHARGED WITH AN OFFENCE. Canada, Province of , District (or County, United Counties, or a.t the case may be,) of To all or any of the Constablen or other Peace Officers in the District (or County, United Counties, or as the case may be,) of : Whereas A. B., of (laborer,) (c) 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 , (c) If the offender's name is unknown s. 17 allows his descrip- tion to be given in a warrant, which may be as follows : — Whereas a certain man (an Italian, or as the case may be, if a Description. foreigner,) tchose name is not knoicn, but Height the description of whose person is stated in Colour ot Hair the margin hereof, hath this day, «|*c, (Pro- Colour of Eyes reed as in the usual form : but wher- Age, apparently over the name of the defendant occurs, Complexion say, " the said ryian unknown." Distinctive marks .... Dress 110 justices' act. — SCHEDULES. at , did {Jfc, stating shortly tht offence), (di 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 unto the said charge, and to be further dealt with according to law. Given under {my) Hand and Seal, thiH day Qf , at , in the District [County y cf-c, aforesaid. J. S. [L. •.] (C) See ss. 2, 13. (6) SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE OFFENCE. Canada, Province of , 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 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 you on , at , (>xfrt the, dpisrriptioii of 'irtieifn ftnhn) of the pfoods and t liattels of Deponent. %vere feloniously stolen, taken and carried away, frojn and out of the ( DtreUing JIovsp. life..) of this Deponent, at the (Townsfup. uty Cleriv of tlie Cnuvn for ti)e [district [or County. United Counties, or as the rtme wnj/ /»'), or Clerk of the Peace of and for the said District (or County, United Counties, or as the cnnc moij t>r.) (13) WARRANT TO APPREHEND A PERSON TNDTCTET). ..1 Canada, Province of District (or County, . Unit'^d Counties, or ( OK the case ???(/»/ be, of J 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 case may be) in and for the District {or County, United Counties, or as the case may be) of that (^c, stating the certificate ;) These are therefore to command you in Her Majestys name forthwith to apprehend the said A. P., and to bring him before (me) or some other Justice or Justices of the Peace in and for the said District (or County, Unitetl Counties or as the case may be,) to be dealt witli according to Law, Given under my Hand and Seal, this dny of , in the year of Our Lord , at in the District (or County, ^-c.,) aforesaid. J.'S. [l. 8.] lir, jr:sTic'E« Ar-T. — sniEniLEs. iii (1 ^) DKI'OSITION THAT THE PERSON A ITllEIIENDED fS THE SAME WHO IS ]NJ)irTEl>. (Not ill f^tututo, Okes For. p. 401. No. 1().) Ji <; I: ( 'iUiada, Province of , Distrift {or Coniity. I'liiti'd (Jonntios, or ii.s llie case may he.) of 'V\\v. deposition of .1. N. of liif Piirisii of in till- [Conntii) of coustfilde taken njion oatli Ix'fore nic, tlic niidersi^ucd, one of Tier ]\faiestv's .Tiistiees of the P for tile said (0'"»///) of e.'ice this day of in ' ( iitilieate of .1. D.. Clerk of the Crown ol ('*/• Clerk of the Peace of ias the cri.sr )iifi>/ In) ^ HOW i-rodiiced liy lue : that I never heaid mention ol any (ftlier prison of the same name as the said A. P>., livinj^- at or near the parish of* o/' us ihr rase may he;] that A. P>. ajiprehended F FENCE. (Not ill Statute, Okes For. p. 102. No. 18.) (Proceed as in the form Sv. 1 1 to the a.sterisjv*, tin n thu.> : — that A. B. now confined in the (^common Sc/- s. J< . (22) WARRANT For A WITNESS IN THK FIRST INSTANCE. (anada. "X Province of . [ . District \or County, i I'nited CouutTes. or j (t.s I be rusf imiii he.i of ' I To all or any ot the Constables, or othei' I'cacc Ctlners in I In- said Distriit lo/- County. Cnited Counties, or ax the cane m. now under examination ])efore nic tli(! .said Jus- tice on tile cluuf^e aforesaid, now voluntarily a})i)('ars as a witness for tlie jiroseeution in that beiialf, and the said E. F. appearing; to lue. upon oatii, liliciy to j^ivc material evidence for tlie prose- cution, but beinu ri-cpiired to make oath or alHrujation as a witness in that behalf, hath now refused so to do, {or being didy sworn as a witness, doth now refuse to answer certain questions coneerii- _\nic the premises, wliich are here put to him,i without olferiiiK anv just cause for such his refusal : These are therefore to eon)- mand you the said constable to take the said K. F. and him safely to convey to the (Common (}oal) at , iu the \ Count'/) aforesaid and there deliver him to the said Keeper thereof, with this precept, and I do hereby eounnand you the said Keeper of the said (Connouii Goat) to receive the said K. F. into yom- custody in the said (( 'ommon Goal), and him tlurt- safely keep,* (f i for the s[)ace of . days for his said contempt, unless he shall in the meantime consent to be examined and to answer concerning the premises ; and for your so doing tiiis shall In- your sullicient warrant. (Jiven under my Hand and Seal, tlii^ (it in tin: (^(.'oiinfi/) aforesaid. in the vear of our Lord at (lay !>!) See s. 21). (25) DEPOSITION (W WITNESSES, (-i |». 501. Canada, | Province of .1.^^. [,..s.] Okes For. Note (i:i District (or County. ' United Counties, or ^ as the case man ^^j) of , \farni'i], i\n*\ The examination of C. AV. ol E. F. of , (laborer), taken on [oath; this day of , iu the year of our Lord , at , iu the District (oy County, cc.inpletei/, /ft /tim xif/n it.) (i) .And this de])onent. E. V. npon his (o^///() saitli as follows: (.^r.i The aliove depositions ot ('. 1). and K. F. were taken anr. (h) ^Vhel•e the accused is charged with the commission (^f two or more felonies (u* misilemeanors committed within tlie same Jurisdiction in respect of the same or dilVerent |)r(xse( ntors. the otfences may. if convenient, be imdmh'd in one set of (le])ositions (See Okes ''Synopsis,' loth ed.i the sCcotid offence luing stated iis. — 1. And (i/ so for that he tlu' saiil A. I'l. on «fec.. at kv., (stating the offence) ; — '.\. Ancl also for that k'\ (plaiini; each otVence in a separate ]»a)agrai)h with a number.) (i) AVlure the accused interposes an observation durinj^- the (•xamination of a witness, insert it in this manner : The prisoner here voluntarily says (pnt /lis vfrji irords.") or •• the jirisoner at this sta,ij:e of the proceedin;;s said he desired to make a state- ment, and having been given clearly to understand that he was not olilined to say nnythinj;' now but whatever he did say would lie taken down in writinu' and might be used in evidence ajjraijist him, voluntarily saith as follows : << ; " or the jirisoner lieing asked whetluM' he wished to put anv (jUestion to the witness voluntarily says ; •• The cross- examination should likewise be taken down as ''Cross-examined liv the prisoner (or by I\li. Wontiu'r, attorney, or Mr. (Jiftard. ( ounsid for the ]nisoner ",. And when the accused himself cross- examines the witness, the answer as well as the question ?««?/ /jr taken down if desirable. Tiie re-examination by the i)rosecutors attorney, or by the magistrate, should also be distinguished, as-^ '• Re-examined l\v Mr. Humphreys, attorney for the prosecution," or "by the magistrate.' m 12t-) .TU8TICES ACT. — SClIEDl'LES. (26) DEPOSITIONS OF THE WITNESSES ON TIIK REMANI) r>AV. (Not in Statute.) This will he on Ihe like c•..) t\( , ( hinni-r), |tcrsonally rami' Itcfoif inc. one <»| Her .Majesty s .liisticcs of tiie I'eacc in and lor tlic said District (or County, IJnitfd CounticK, or It!* the rnxfi iiifn/ fip) «»l , and acknowjcdtfcfl iiimsclt to ou-e to Our Surercij;ii i.,idy the (^luen. Her Heirs and SnccesHors. the sum of ol good and lawful current money of Canada, to l)e made and levied of Ids goods and cliattels, lands, and tenements, to the nsc of our said Sovereign Lady the <^ueen. Her Heirs and S'lccessors. if tlie said C. [>. >«hali fail in tlie ve mentioned, at befure me. .1. s. CftNDJTION TO rRgnizance to be v(tid or else to stan«l in full force and virtue. CONDITION TO PROSECUTE AND (ilVE EVIDENCE. ^ (SdiiiP. (IS the Idst fonii. In the ax/er/sk.* onrl then thiin:) — '-And •• tnere prefer or cause to lie ])referrefl a Bill of Indictment against '• the said A. B. for the offence aforesaid, and duly prosecute such '• Indictment, and give evidence thereon, as well to the .Turors " who shall then enquire into the said offence, as also to them '• who shall ]»ass upon tlu^ trial ot the said A. B.. then the said '■ Recognizance to Ite void, or else to stand in full force and virtue." CONDITION TO (JIVE EVIDENCE. (Snnf iiK Ihr last form hiif one. to the fi$terisk* nnd then thus: — •• And there give such evidence as he knoweth upon a Bill of '• Indictment to be then and there preferred against the said " A. B. for the ollence aforesaid, as well to the .Turors who shall • there enquire of the said oflfence, as also to the .Turors who '• shall pass upon the trial of the said A. B. if the .said Bill shall " be found a True Bill, then the .said Recognizance to be void, " otherwise to remain in full force and virtue.' jrSTK'ES' ACT. — SCHEDULES. 120 I (0 2 ) See s. 37. (30) NOTICK «>i-' TIIK SAID RECOUMZANCE TO IJK (IIVEN TO THE PROSECUTOR AND HIS WITNESSES. Canada, rroviiui' of , District {or County, United Counties, or (IS the cifse mai/ br,) of Tuko notice tiiut you C. D. of , are liound in ilif «uni of to appear at tlie next Court of Oyer and T«nininer and (reneral (Jaol Delivery, (or at the next (Vmrt of (leneral Quarter Sessions of tlie Peace, in and lor tlie District {or County, United Counties, or an the case mai/ hr,) of to h(> holden at , in the said District (County, <|r..) and tlien and tlu're (prosecute and) giv(! evidence afj;ainst A. 13., and unless you then appear tliere, (prosecute and) pivc evidencf accordinpjly, the Recognizance entered by you will be forthwith levied on you. Dated this day of • one thousand eight hinidred iind J. S. Ill il (31) THE LIKE WITH VARIATION WHEN THERE IS A SURETY FOR A WITNESS. (Not ill Statute. Okce For. p. 501. No. 58.) Take notice, that you C. D. of &c,, arc bound in the sum of poiinds to apjiear (or for the ai)pearance of L. M., of (fee, a minor or the wife of J. M. of Ac, as the case via.ti be) at the next Court of (Jeneral Quarter Sessions of the Peac e, [or Oyer and Terminer and General Gaol Delivery) in and for the said (Count}/) of , and then and there to (prosecute and) give evidence against A. B. for (felony), and unless yon (ho) then appear (appears and prosecutes) and give evidence according- ly, the Recognizance entered into Ity you will be forthwith levied on you. Dated this • day of ,18 J. S., the Justice of the Peace for the said {Count!/) of before whom the Recognizance was entered into. 130 JUSTICES ACT. — SCHEDULES. (IM) See s. 3;). (o2) COMMITMENT OF A WITNESS FOR REFUSING TO ENTER INTO THE RECOGNIZANCE. (.'anada, I'lovincc of , District (or Count j, United Counties, or fis (he case may Oc) vt To all or any of the Constables or other Peace Utticers in the naid District {or County, &c.,) of , and to the Keeper of the Common Goal of the said District, (or (.'ounty, J^c, or fix the case may be,) at , in the said District (or County, ^T., or as the case //«/• County, >.[<■.) aforesaid. J. f!?. [L. S.] I 132 (34) justices' act. — SCHEDULES. (Q 1) Sec s. 41, WARRAxNT IVEMANDING A nHSONER. Canada, Province of , District (o/' County, United Counties,) or ait the case may be,) of To all or any of tlie Constables and other l\ac(! Ollicers in ilio said District (or County, United Counties, or as (he case inay be,) of , and to the Keeper of the {Common Gaol or Lock-up Home) , in the said District or County, ^'c.,) of " : Whereas A. 13. was this day ehargctl la-fore the undersigned Wheiras A. I'., (lu'ivinat'tcr ciilltd tlie '-accused " (ii to wit pvas on tlic e it remembered, That on tin in the year of our Lord (lav of A. P>. of > (laborer) L. M. of {grocer), ».nd N. O. of , (butcher) personally came before me, (owi?) of Her Majesty's Justices (i) In order to prevent repetition of names, especially where there are several, it is now become usual to say here " hereinafter the accused"; afterwards referring to him or them as 'the said accused," merely. 134 .TUSTICES' ACT. — SOTIEDULES. of the IVHce lor tlio is^Ui Dihtiict (0/ County, United Counties, ot (tn the case maji hi^). and Kcvcrally acknowledged themselves to owe to our Sovereign Lady th(> Queen, Her Heirs and Snccefisor8, the Heveral s\nns roll()wine there, to answer [further) to the said charge, and to be further dealt with according to law, the said recognizance to be void, or else to stand in full force and virtue. (Q 3) Sec s. 44. (37) NOTICE OP RECOGNIZANCE TO BE GIVEN TO THE ACCU.SED AND III.S .SURETIES. Camida. 1 Province of ,1 ' District [or County, / . United Counties, or as the ease ma if />p.) of Take notice that you A. B. of , are bound in the sum of , and your Sureties, L. M. and N. O. in the sum of , each, that you A. B. appear before me .1. S. one of Her Majesty's Justices of the Peace for the District (or County. United Comities, or ax tht case may be), of ' justices' act.— SCriEDl'LE^. 135 iKi , the ilrtv ot' o'clock in the {/ore) noon, ut .Justice or .Justicos of the same District, or as the caup vunj he) us may then he the charge made against yon ])y C. D. according to hiw ; and unless you A. B. gly, the Recognizance entered into by forthwith levied on you and them. Dat«I this (lav ol f'ight hundred and (ifisfantA at , or before such other (or County, United Counties, there, to answer (^further) to and to he further dealt witii personally appear according- yourself and Sureties will i»«' . one thousand .1. s. (Q 4) ^'^'' !^- 45. (38) CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON THE RECOGNIZANCE. r hereby certify that the said A. B. hath not appeared at the time and place, in the above condition mentioned, but therein hath maile default, by reason whereof tlie within written Kecognizance ib forfeited. , J. «. (R 1) ASVr s. 47. (39) WARRANT TO CONVEY THE ACCUSED BEFORE A JUS- TICE IN THE COUNTY IN WHICH THE OFFENCE WAS COMMITTED. Canada. Province of District (o;- County, United Coiuitics. or | fi.^ (fie rime nitiy he), | of J To all or any of the Constables, or other Poaie (officers in the said District (or County, United Counties, or tis the case maif be) of : Whereas A. B. of * (/nhnrer), hath this day been cliarged before the undersigneS'. i'C s. 40. (40) RECEIPT TO IJE GIVEN TO THE CONST.^HLE IIY TIIE .lUSTICE FOR THE COINTV IN WHICH THE OFFENCE WAS COMMITTED. 1 Canada, Province of , District (or County, United Counties, or (iJ< the case mail be), of 1, J. P. one of Her Majesty's .Tnstices of the Peace, in and for t'le District (or County, ^r.) of , hereby certify that W. T. Constable, or Peace Officer, of the District (or County, United C'ountiee, or as the c<(se vun/ be) of , lias on this day of , one thousand eight hundred and , V>y virtue of and in obedience to a Wariant of J. S., Fs(]uire, one of Her Majesty's Justices of the Peace in and for the District (or County, United Counties, or as the case vuty be) of , produced before me, one A. B. charged before! the .said J. S. with iiaving (cjr., statiny short/}/ the offucc.) and deliverect*him into the JUSTICES APT. — SniEDFLES. i:j7 (Mistcxiv <»t I'V my tlircttioii, lo answer to (he saiU i lijii;;(', and further to Ik* (U-alt with nccordiiij; to hiw, and has also deli v<'rtistriet (or (.'oimtv. ,'jr. of J. P. li b m (^1) (S 1) See s. 52. nECor.Niz.\Nr.E OF n.\ir. Canada, I'rovince of , District (or County, United Counties, or on the Ciiife nun/ /><•), of J Bo it rememhered, tliat on tlie , A.B. of day of in the , (laborer), L. M. of year of our Lord (f/rocer,) and N. O. of , (hutchcr), i)ersonalIy came hefore (us) the undersigned, (two) of Her Majesty's Justices of tlie Peace for the District (or County, United Comities, or as the case man U,) of and severally acknowledged themsound in the sum of , and your sureties (L. M. and N. O.) in the sum of , each, that you A. B. appear (.jr., as in I he condition oj the. Recognizance,) and not tlepart the said Court without leavi' : and unless you, the said A. 13., personally api)ear and plead, and take your trial accordingly, the Recognizance entered into hy you and your Sureties .shall he forthwith and levi«'d on you and them. Dated this day of , one thousand eight hundred and J. S. (S 3) ss, 53, 55. \\i) WARRANT OF DELIVERANCE ON RAIL HEINO GIVEN FOR A PRISONER ALREADY r.O>f MITTED. Canada, Province of District (<>/• County, United Counties, or an the caKe mail be], of ■ J To the Keeper of the Common CJaol of the District {or County, (Tnitcd Coimties, or as the case may he) of at , in the Staid District (or County, Uniti'd Counties, or as the cate may be) Whereas A. B. late of , {laborer,) hath before {us) {two) of Her Majesty's Justices of the Peace in and for the said Distrii t {or County. United Counties, or as the case may be) of JUSTICES ACT. — SCHEDULES. 130 rntcii'd into his own Uccogiiizaiuc, mtkI tuuiid sutticioiit suirtics lor his appcnianci! at the next Court of Oyer nnd Tciniincr <»i (it'iicral (.Jaol Dtlivtiv (or Couit of ficncral nr Quarter Sessions c.»t tiie Peace) to l)e holden in and lor (he District {or County, United ( 'ountics, or ok the rai^p tmn/ he) ot . to answer Onr Sovereign Lady the (^ueen, tor that (djv., "•"' hi (If ronnnitmrnt), for for whieli he was taken and conunitted to your said Common Ciaol : These are theref<»re to romniand you. in Her said Majesty's name, that if th(^ said A. I>. y thw < oniso ol law. Uivcii iiiulcr my Ilaiul and Seul. this day of , ill tlic year of (rfir Lord , at , in the District (or {.'onntv, &c..) of aforesaid. J. S. [L. S.] (T 2) See s. 57. (Uj r.AOLicns' iucckipt to the constahle for the ^ PRISONER. I heiL'lty certify that I have received from W. T. CoiiKtabk', of the District {or County, &c.,) of , tlie body of A. 15., tof^etlier with a Warrant under the Hand and Seal of J. S., Ks(|uire, one of Her Majesty'.s Justices of tlie Peace for the said District (or County, United Counties, or as the case mai/ be,) of , and tliat tlie said A. li. was (sober, or as the case may be,) at the time he was delivered into my custody. P. K. Keeper of the Common Gaol of the said District (or Countv, APPENDIX. (45) COMPLAINT OF BAIL FOR A PERSON CHARGED WITH AN INDICTABLE OFFENCE IN ORDER THAT HE MIGHT BE COMMITTED IN DISCHARGE OF THEIR RECOGNIZANCES. (Not in Statute. Okc's For. p. 514, No. 70.) Proceed an in form No. Qy. 1, a)ite to the asterisk *alterinp it to tim com^ilaints if there be more than one surety, then thus : that they tii«' sai(i C. D. and E. F. were on the day of now last past, severally and respectively duly bound by recognizance before J. P., Esquire, one of Her Majesty's Justices of the Peace for the said (county) of , in the sinn of each upon condition that one A, 13., of &c., should appear at the next term of the Court of Queen's Bench (Crown Side) for the District of (or Court of Oyer and Terminer and (ieneral CJaol Delivery, or Court of General Quarter Sessions of the Peace), to l>e holden in and for the (Coww/.v) of , and there suiTcnder himself into the custody of the Ki'cper of the (Common Gaol) there, and plead to such indictment as might be found agaijif^t him l)y the grand jury for or in JUSTICES ACT. — SrilEDULES. 141 respect r»f the charf^o of (stutinj; the chniKe shortly), and take his trial upon th«^ same and not depart the said Court witliout leave ; and that these coniphiinants have reason to suspeet ami believe and do verily suspect and bilieve, that the wiid A. D. is al»out to depart from tliis part of the country ; and therefore they jiray of ine tiie said Justice that 1 would issue my warrant of apprehension of tin- said A. n. in order that lie may be surrendered to prison in dis- charge of them his said bail. Before me, J. P, V. p. II (40) WAHHANT TO APPHEHEND THE nCFliJON CHAlir.ED. (Not in Statute, (k) Okc's p. 514, No. 71. Venue should be as in No. 43.) To all or any of the Constables and other IN ace CHlicers in tlir said District (or County, United Countit-s, or as the cme mat/ hr) of and to C. D. .and E. F. sevendly and respectrvely. ■» Whereas yon the said C. D. .ind E. F. have this day to wit J made complaint to me the nn»h'rsipfned, one of Ikr Majesty's Justices of the Peace in and for the said {Count;/) of that yon the said C. D. and E. F. were &c., {us in ihr romplainf, No. (45), supra., to the end) : These are therefore to author!/ • yon the said C\ D. and E. F., and also to command you the said (Constable or other Peace Officer), in Her Majesty's name forthwith to apprehend the said A. B. and to brinf? him iitfon- me or sonn- Jtistice or Justices of the Peace in and for the said (Count;/), to the intent that he may be committed to the (Common (rao/) in and for the said (Count;/) until the next Court of (Oyer and Terminer and General Gaol Delivery [or Court of General Quarter Sessions of the Peace to be holden in and for the said (Count;/) of , or i- may be) of , and to th(! Kocjr'i- of tlir Coninion (Jjvol of tli«' District {or County, United Counties, or as the cane may be), Hi , in tiie said Distri( t {or County, &c..) of I Wlioreas on the day of instant to wit j eoniplaint was made to nie the undersi^iued {or .J. S.) one of Her Majesty's .JustieVs of the Peiuje in and foi- tl»e said (County) of , l.y C. D. and E. F., of Ac., that {as in the complaud No. (4.")), xiijira to the end), I {or the said Justice) tiiercupon issued my warrant autliori/inj,' tlie said ('. D. and E. F. and also eommandiuK the said Constables of and all other Peace Officers in the said {Counfy) of , in Her Majesty's namt; forthwith to apprehend the said i\. 1!., an«l to brinf; him {foUow to end of ivarrant, "So. (40), nufira) ; and whereas the said A. B. luith l)een apprehended under and by virtue of the said Warrant, and being now brought before me the said .Justie<; (or me the undersigned, one &o..) and surrendered by the said C. D. and E. F. his said Sureties, in discharge of their said Recognizances. 1 have required the said A. I>. to find new and suilicient sureties to become bound for him in such Recognizance .as aforesaid, but tlie said A. B. hath now n:fused so to do : These are therefore to com- nuuid you the saitl Constables {or other Peace Officers) in Her Majesty's name, forthwith to take antl safely to convey the said A. B, to the wild {Common Gaol) at , in the said {Counti/) and there deliver him t(i the Keeper tlu-reof, together with this precept ; and 1 hereby command you tlie said Keeper to receive the .said A. B. into your custixly in tlie said (Common Gaol) and him there safely to keep until the next Court of Oyer and Terminer and General (iaol Delivery {or Court of (jfeneral Quarter Sessions of the Peace) to be holden in and for the said {County) of unless in the meantime the said A. B. shall find new and sutiicient Sureties to become bound for him in such recognizance as aforesaid. Given &c., (as form No. -itl, supra.) CAP. XXXI All Act refipectiiig the duties of Justices ol' the Peace out of Sessions, in relation to snnnnary convictions and orders. " Assented to 'I'lnd June, 1H61>." I'l'aiinblf. WHEREAS it is expedient to assimihite, umeud and consohdate the statute law of the seve- ral Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, respecting the duties of Justices of the Peace out of Sessions in relation to sum- mary eonvictionis and orders, and to extend the same as so amended to all Canada : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : When ait uijurnuitioii is laid^ ttv., Ijtj'orr a Jastire oj tin. Peace, dx., such Justices niaij issue a su)nmo)ts to tJte jKitf'/ accused. Form of tSuninioii.s. 1. In all cases where an information is laid before one or more of Her Majesty's Justices of the Peace for any Territorial Division of Canada, that any person, being within the jurisdiction of such Justice or Justices, has committed or is suspected to have committed any offence or act ^! 144 Sr.MMARY CONVICTIONS. over which the Parliament ol' Canada has juris- diction, and for w^hich he is hable by law^, upon a Summary Conviction Ibi the same before a Justice or Justices of the Peace, to be imprisoned or fined, or otherw^ise punished, and also in all cases where a complaint is made to any such Justice or Justices in relation to any matter over which the Parlia- ment of Canada has jurisdiction, and upon which he or they have authority by law to make any order for the payment of money or otherwise, such 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 (?Eher"Xustice or Justices of the same Terri- torial Division as may then be there, to answer to the said information or complaint and to be further dealt with according to law. The Imperial Act 11 and 12 Vic. c. 43 introduced great changes into the law relating to summary convictions and orders. 'Previous to the passing of that statute ample field was afforded for raising technical objections, and there can be no doubt that the objects of Parliament in pjissing it, were to simplify the duties of Justices of the Peace in such mat- ters, to do away in great measure Avith the technicalities which beset and embarrassed them, and to define their duties in a clear and positive manner. The Parliament of the old Province of (janada soon recognized the benefits resulting I'rom a uniform system, and with but few alterations introduced the urcater number of SUM3IARY CONVICTIONS. 145 the provisious of the Impcri*.! Act 11 and 12 Vic. c. 43 int<» the Provincial Act 14 and 15 Vict. c. 95. From those two acts, with but few changes, haa been com- piled the 32 and 33 Vic. c. 31, now under consideration. Information. In this Statute the distinction between an '' information " and a ''complaint" should always be borne in mind. An information is laid against a party charged with tho commis- sion of, or who is suspected to have committed, any oflfence or act over which the Parliament of Canada has jurisdiction, and for which he is liable by law, upon a summary conviction, to be imprisoned or fined, or othei'wi.se punished. (^oniplaint. A complaint is made when the person is liable by law, to have an order made upon him by Justices, to pay money, or to do some act which he has refused or neglected to do, contrary to law. ^ information requisites of It is requisite in all summary proceedings of a penal nature, that there should be an information or complaint, which is the basis of all the subsequent proceedings, and without which the Justice is not justified in intermeddling, except where he is empowered to convict on view as by 8 Hen. «. c. 9 forcible detainer. (Paley p. 54.) A sufficient information, by competent persons, relating to u matter within the magistrate's cognizance, gives him jurisdiction irrespective of the truth of the facts contained in it. (Paley 55. i When the information muH be receired. Mandamus in case of refusah As it is the duty of Justices to enforce the acts, the execution of which is referred to them, they cannot properly \ 146 SUMMARY CONVICTIONS. refuse to receive an information regularly brought before them. If they should refuse the Court having power to issue a mandamus will either issue that writ or grant a rule to compel them to receive such information. (Palcy p. 56.) When it should he laid. The information must be laid, or complaint made within the time limited by the particular statute on which it is founded ; if no period is fixed by the statute it must be within thrcb months from the time when the matter of the complaint or information arose, except in that part of the County of Saguenay in the Province of Quebec which extends eastward from Portneuf as far as the limits of Canada inclnding all the Islands adjoining {sic) thereto, wherein the limit is extended to twelve months from the time when the matter of the complaint or information arose (s. 26 post). Care must be taken that it is not laid prematurely as occa- sionally by statute an interval must elapse before any prose- cution. [Vide Imp. Act 19 Geo. 3. s. 2. — Paley 57.) If the statute creating the oflFence provide that the party accused be *' convicted" within a certain time, the laying of the information merely will not sufl&ce. (Dowell vs. Benning- fuld 1. Car & Mar. 9; Rex vs. Bellamy 1. B. & C. 500; R. vs. Tolley 3. East 467; Okes' Syn. 106). In almost every case in which an act is to be done within a certain time after the happening of an event, the Courts have adopted as a rule, that the day on which the event happened (e. g. the commission of the offence, or the time when the matter of complaint arose) is to be excluded, and that on which the act is done (e. g. the preferring the infor- mation or complaint) is to be included. (Pellew vs. Inhabi- tants of Wonford 9. B. & C. 134; Lester vs. Garland 16 Vesey 248; Williams vs. Burgess 12 A. & E. 635; Freeman SUMMARY CONVICTIONS 147 i VS. Reed 32 L. J. (N. S.) iM. C. 22G). If the time be expressed by tlie year or an ali«jUot part, as a half, a quarter &c., of a year, the computation is by calendar months of twelve to the year (Vic. 3, c. 1, s. 7). In the compu- tation of the month's notice of action to a Justice rc- ([uired by Statute, the day of givinj; the notice and the day of suing out the writ arc both excluded (Younj; vs. Higgon 6 M. & W. 40, 52). The same mode of computation has always been adopted where the Statute uses the words "clear days' or so many "days at least." (Mitchell vs. Forster 12 A. & E. 472; E. vs. Justices of Shropshire 8 A. & E. 173 ; Louch vs. Empsey 4 B. & Aid. 522 ; Paley p. 45). Fractions of a day are not taken any notice of in law. (Lester vs. Garland supra ; Hardy vs. Ryle 9 B. & C. G63 ; Field vs. Jones 9 East 154; Latlcss vs. Holmes 4 T. II. GGO; Freeman vs. Reed supra). Every complaint or information (whether by a party aggrieved or an informer may be laid or made by the com- I)lainant or informant in person, or by his counsel or attorney or other person authorized in that behalf (s. 25 post). It is conceived however that this provision will not apply to those cases where a particular person is required by the statute to lay the information or make the complaint. (0'';es' Syn. 107). Where the offence is an individual grievance, and the dis- charge or conviction on the Summary proceeding is a bar to all other proceedings, as in cases of assault under the 43, 44 and 45 sections of 32 and 33 Vic. cap. 20, the party aggriev- ed alone can be the informant, and where by the Statute u particular person is re(iuired to lay the information or make th'2 complaint, no other can institute the proceeding. In all other cases where the offence is a matter of public policy and I mm 148 SU3IMARY CONVICTIONS. utility and concerns the public niorali*, any person has a i^cneral power to sue for the penalties (per Cockburn C. J. in Cole vs. Coulton 29 L. J. (N. S.) ?.i. C. 125). Although the 32 and 33 Vic. c. 31 docs not expressly require the information to be in writing it evidently contem- plates that it should be so taken (ride ss. 5, 20 and 21 by which it is provided that it shall not be necessary that a complaint be in writing, unless required by some particular Act or Law on which such complaint is framed). The information or complaint need not be on oath in the first instance unless required by some particular Statute save in the case where the Justice issues his warrant on the exhibi- tion of the information in which case the matter of the information must always be substantiated by the oath or affirmation of the informant, or of some witness on his behalf before the warrant is issued. Whenever in other cases, the information or complaint is taken on oath, the Justices must be careful to administer the oath before lie takes the infor- mation or deposition of the party or his witness. (R. vs. Kiddy 4 D. & R. 734). Sometimes the Statute though it does not require the information to be on the oath of the informant, in the first instance, yet requires the charge contained in it to be substantiated on the oa+h of some other person being a credible witness before any proceedings are taken upon it. The deposition in all such cases should be made in tlu* prestmce (tf the magistrate ; and where it was taken in his absence by his clerk, it was held irregular, and to be no justification for proceedings founded upon it. (Caudle vs. Seymour 1 Q. 13. 880; R. vs. Constable, id. 894 n. (a); R. vs. Justices o<* Darton 12 A. and E. 78). Several offences. Formerly several offences might have been included in one SLMMARY CONVICTIONS. 149 information and several matters of complaint in one complaint, but now the information or complaint should be for one offence or one matter of complaint only (Vide s. 25). This however does not prevent a principal and an abettor from being charged in the same information. (Vide s. 15). JVcgativ ing exceptions. The important rules which relate to the negativing of exceptions in the description of the offence are fully treated of under the head of Conviction post. Description of Defendant in certain eases. , If the Statute under which proceedings are taken extends only to persons of a particular class, office or situation of life, the Defendant should be shewn to come within the description of such persons, bearing in mind the broad rule for construing Statutes as laid down by Lord Tenterden that " where general words follow particular ones, the rule is to construe them as applicable to persons ejusdeni generis" (Sandiman vs. Breach 7 B. & C. 100 upon the words "or other person whatsoever "). By the s. 8 of thi.s Act the Defendant may be named or otherwise described in the wavrant to the constable to apprehend. i^Iarried women if they have committed an offence without the coercion, actual or implied of their husbands are cfjually liable to be proceeded against as other persons fll. vs. Orofts 2 Str. 1120; R. vs. Hammond 2 Lea. 499; R. vs. Williams 10 Mod. 335; R. vh. Cruse 8 C. k P. 541 ; Paley 59 and GO ; Stone 05 1. Husband and wife may also be jointly convicted and punished for any offence of which they have been jointly guilty. Females, Infant x. Female offenders o:in be convicted of any offejue punisli- 150 SUMMAIIV CONVICTIONS. able on summary conviction as well as male. Infants above seven years of age may be prosecuted for penalties in respect of any injuries committed by them if sufficiently doli capaccs to incur responsibility (Gray vs. Cookson ct al. 16. East. 13, 27, 28 ; 11. vs. Sutton 3 A. & E. 597 ; 11. vs. Lard 12, Q. B. 757, 7G1 ; Paley 60 n. (x) ; Okes Syn. iii ; Stone 65). In some cases a man may be brought within a penal statute by the acts of his agents or servants, according to the maxim qinfacifjycr alium/acif per se, when the persons doing the act are proved to be such agents or servants. The employment of an agent in the defendant's usual course of business is sufficient evidence in such cases, whence the magistrates may, if they think fit, presume that such an agent was authorised to do the prohibited act with which it is sought to charge the principal (Okes Syn. iii). But if the illegal act is not done in the usual course of the employers business, but out- side thereof, evidence must be given to fasten upon the employer the guilt of the act complained of as having been by him authorized. (Harrison vs. Leaper 5 L. T. N. S. 640; Reg. vs. Handley 9 L. T. N. S. 827; Wilson vs. Stewart 8 L. T. N. S. 277 ; Searle vs. Reynolds 14 L. T. N. S. 518). Joint offenders. The prosecutor may prosecute all or any of the parties, and the omission of n part ice px criminis aumot, as in cases of joint contracts in civil actions, be taken advantage of by those who are prosecuted. Where several persons have taken part in committing the the same offence at the same time and place, they can all be joined in the same information. (Paley 61 ; Okes Syn. 113 ; Saunders 89). Sfe made ex parif. 154 SUMMARY CONVICTIONS. No objection allowed on account of defect or variance, 'roviso. P 6. No objection shall be allowed to any infor- mation, complaint or summons, lor any alleged defect therein, in substance or in form, or for any variance between such information, complaint or summons, and the evidence adduced on the part of the informant or complamant at the hearing of such information or complaint ; but if any such variance appears to theJTustice or Justices present and^ acting at such hearing to be such, thaFlHe person summoiied and appearing has been thereby deceived or misled, such Justice or Justices, may, upon such terms as he or they think fit, adjourn the hearing of the case to a future day. Th<' words of this section certaiuly appear to be very com- prehensive ; in the tirst place it is provided, that uo defect, in substance or in form, in an information, complaint or summons shall constitute matter of objection ; in other words that however defective in substance or in form an informa- tion, complaint, or summons may be, still that to the two first the defendant must plead to the merits, and to the last urge no objection. With reference to the summons, the provision is a good one, for on the appearance of the defendant before the Justice, the summons ceases to be of any use, the defendant pleading, not to the charge therein, but to that contained in the infor- mation. Many of the English writers on the 11 and 12th Vic. c. 42, are of opinion that the similar clause of that act grants almost unlimited power to the informant or complainant, in sr.MMARV CONVICTIONS. 155 framiuj:; his information or complaint. (iSaunders 2nd Ed. 18 ; Stone 7th Ed. 68 ; Palcy 3rd Ed. ()3i. But now-a-days it seems to be admitted that the powers of amendment do not extend to tlie substitution of one offence for another, or to the dealini; with a case under another statute than the one upon which the information was laid. (Martin vs. Pridgeon 28 L. J. M. C. 179 ; Soden vs. Gray 7 L. T. N. S. 324 ; Reg. vs. Brickhall 23 L. J. M. C. 15G; Saunders Ith Ed. 18 and ID; Glenn [)[) notes; Paley 5th Ed. pp. 70, 77). Where however upon the appearance of the defe'idaut, the informant before he enters into the case declares his inten- tion of establishing by the facts a charge different from the one upon which the defendant has been summoned, to which course the defendant does not object, he cannot afterwards set up a want of jurisdiction in the Justices to hear the ca.sc. (Turner App. vs. The Posmaster General llcsp. 10 L. J. 31. C. 10; Shepherd vs. The Postmaster General 11 L. T. N. S. 3G9). Where the inf^-mation charges the defendant with having committed an offence on a day certain, as for instance the 5th October and on divers other days and times between the said 5th Oct. and the laying of the information (KJth Nov.) the Justices may convict him of committing the offence on any day between the 5th October and 16th Nov. (Onley vs. Gee 30 L. J. M. C. 222). A greater latitude might, without any doubt, be indulged in so far as disregarding defects in the information is con- cerned, thau seems now to be admitted, without being pro- ductive of any harm. , ^ J 156 SUMMAUV CONVICTIONS. If the snnimoHs having been duly scned, d'c..^ U not obeyed, the Jiixticc may issue his warrant. Warrant may issue in the first instance on information supported by oath, rfv. Proviso : Copy of warrant to be served on dtfandant. 6. It' the person served with a Summons does not appear before the Justice or Justices at the time and place mentioned in the Summons, and it be made to appear to the Justice or Justices, by oath or affirmation, that the Summons was duly served what the Justice or Justices deem a reasonable term before the time therein appointed for appearing to the s'ame, then the Justice or Jus- tices, upon oath or information being made before him or them, substantiating the matter of the information or complaint to his or their satisfaction , may, if he or they think iit, issue his or their Warrant (B) to apprehend the party so summoned, and to bring him before the same J ustice or Jus- tices or before some other Justice or Justices of the Peace in and for the same Territorial Divi- sion, to answer to the said information or com- plaint, and to be further dealt with according to law ; or the Justice or Justices before w^hom any such information is laid, for any such offence as aforesaid, punishable on conviction, upon oath or affirmation being made before him or them subs- ., tantiating the matter of the information to his or • their satisfaction, may, if he or they think fit, instead of issuing a Summons, issue in the fiifst SUMMARY rONVICTlONs, 157 iustaiice his or their Warrant (C) lor approheiidiu the person against whom the inlbrmationhas been laid, and bringing him bel'ore the same Justice or Justices, or before some other Justice or Justices of the Peace in and for the same Territorial Divi- sion, to answer to the information and to be further dealt with according to law ; Provided that where a warrant is issued in the iirst instance, the Justice issuing it shall furnish a copy or copies thereof, and cause a copy to be ser^'ed on each party arrested at the time of such arrest. The appearance may be by the defendant personally or by his counsel or attorney (Beasell vs. WilHon 1. E. & B. 489 ; Paley 70; Glen 120 not is; Saunders 4th Ed. 40; Oke's Syn. 139 n. (10) ; s. 30 post ; contra Stone 207 1. The person to make the affidavit of service upon the defendant is the Constable, Peace Officer or other person to whom it was delivered and by whom it was served. By s, .'I he is required to attend at its return in order to prove the service, his affidavit may ])e in the form (No. 2) in the Schedule. The Magistrate or his clerk should keep a minute of the proceedings in each case, in which should be entered every step taken therein, such as calling the defendant, his appea- rance in person or by Counsel, his default drc. The time which should elapse between the service and return of the summons has been already noticed, (ante.) On the default of the defendant to appear cither in person or by his counsel or attorney, the Justice may, the matter of the information or complaint on which the summons issued being substantiated under oath or affirmation as pointed out 158 Hf.MMARY CONVICTIONS. < by Ibrii) No. (3) in the schedule, issue his warrant to appre- hend the defendant. In all cases of informations when they are substantiated by the oatli of the Informant or a witness the Justice may in his discretion if sue his Warrant (C) to apprehend the Defendant ; but such a course sliould not be adopted save where the Justice if of opinion that the defendant wiil, il' not apprehended, evade Justice. In such case moreover the Justice must cause to be served on each of the parties arrested, at the timo of his arrest, a copy of the warrant under i which he is arrested. Vide ante pp. 148, 151 for instructions as to filling up the forma (B and C) and post ss. 8 and 9. Justice may proceed ex jxirte, if siimmou$ duly served h not ohei/ed, i{'c. 7. It' where a summons has been issued, and iipon the day and at the place therein appointed for the appearance of the party summoned, the party fails to appear in obedience to the Summons then, if it be proved upon oath or affirmation to the Justice or Justices present, that a Summons was duly served upon the party a reasonable time before the time appointed for his appearance, the Justice or Justices of the Peace may proceed e.r parte to the hearing of the information or com- plaint, and adjudicate thereon, as fully and effec- tually to all intents and purposes as if the party had personally appeared before him or them in obedience to the Summons. If the Justice in the exercise of his discretion believes that the issue of a warrant unJor the preceedinj; section is JjUMMARY CONVICTIONS. 15U S / ] unnecessary after service of the 8uuuuons and the failure of the defendant to appear, on proof upon oath or affirmation to the Justice present (who need not l>c the Justice sii^ijing the Summons) of the service, the informant may be allowed to prove his case in the absence of the defendant, and the Justice may give his judgment either convicting the defendant or making an order upon him, or dismissing the complaint or information with or without cost« as if the defendant had appeared, save that on dismissal in such case, the defendatit can have no costs. • Warrant to he under hand and »cal : to irhom directed and ichat to contain. 8. EI very "Warrant to apprehend a Defendant that he may answer to an information or complaint shall be under the hand and seal or hands and seals of the Justice or Justices issuing the same, and may be directed to any one or more or to all of the Constables (or other Peace Officers), of the Territorial Division within which it is to be exe- cuted, or to such Constable and all other Consta- bles in the Territorial Division within which the Justice or Justices who issued the "Warrant hath or have Jurisdiction, or generally to all the Cons- tables (or Peace Officers) within such Territorial Division, and it shall state shortly the matter of information or complaint on which it is founded, and shall name or otherwise describe the person against whom it has been issued, and it shall ordc*r the Constables (or other Peace Officers) to whom it is directed, to apprehend the Defendant, and to bring him before one or more Justice or Justices 160 SUM3IARY CONVICTIONS. ol' the Peace, of 8. What officer may execute if, and where. 10. Ill all cases where the Warrant is directed to all Constables or Peace Officers in the Territo- rial Division within which the Justice or Justices who issued the same have jurisdiction, any Cons- stable or Peace Officer for any place within the limits of the jurisdiction may execute the Warrant iu like manner qh if the Warrant was directed specially to him by name, and notwithstanding that the place in which the Warrant is executed be not within the place for which he is a Cons- table or Peace Officer. SUMMARY CONVICTIONS. 161 Vuk observations on 32 and 33 Vic. c. 30. s. 20 ante p. 69. Backing the Warniuf in tinothcr Juristlirtinn : its effect. 11. If any person against whom any Warrant has been issued he not lonnd within the jurisdic- tion of the Justice or Justices by whom it was issued, or, if he escapes into, or is, or is suspected to be in any place within Canada, out of the juris- diction of the Justice or Justices who issued the Warrant, any Justice of the Peace, within whose jurisdiction such person may be or be suspected to be, upon proof upon oath or affirniation of the handwriting of the Justice or Justices issuing the Warrant, may make an endorsemtMit 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 per- sons to whom it was originally directed, and to all Constables or other Ptnice Olhcers of the Territo- rial Division wherein the endorsement has been made, to execute the same in any place w ithin the jurisdiction of the Justice of the Peace cMidorsing the same, and to carry the ollender, when appre- hended, before the Justice or Justices who lirst issued the Warrant or some other Justice having the same jurisdiction. The instruct ioiiM for the endorsement of a Warrant to arrest a person olianji'd witli an indictable offence will apply to ti»o backin}^ of a Warrant under this Section. Tiie party must be brouirht however before uJust ice of the i)ivi.siou whence the Warrant issued. \f2 SUMMARY CONVICTIONS. ■ 1 H lil Vide observations on 32 and 33 Vic. c. 30 s, 23 ante pp. 71 and 72. iVo ohjecfion (dloircd/or want of form : hut adjournment t». certain, cases; and on what condition. 12« No objoctioii shall bo taken or allowed to any Warrant isssued as aforesaid, lor any alleged delect therein in substance or in form, or ibr any variance Ijeivvecn it and the evidence adduced on the part ol' the Informant or Complainant, but if it appears to the Justice or Justices present and actin<»- at the hearing, that the party iipprehended under the Warrant has 1>ee"n deceived or misled by any such variancie, such Justice or Justices may, upon such terms as he or they think lit, adjourn the hearing of the case to some liiture day, and in the meantime commit (1)) the Del'endant to the Commoii Uaol, or other prison, or place oi' security within the Territorial Division or place wherein the Jusiici? or Justices may be acting, or to such other custody as the Justice or Justices think lit, or may discharge him upon his entering into a lleco^nizance (E),with or without surety or sure- ties,- ut the discretion oi' the .Justice or Justices, /conditioned for his appearance at the time and ^ place to which the hearing is so adjourned. Vide ob.^ervation.s as to dci'ectw in .summons ante p. 154 and 08 to eonnnitntont or di.scharge upon bail of defendant 32 and 33 Vie. e. 30 s. 44 ante p. 90. Where a defuuhint is discharged on recognizance and fails to iipjnar, dr. 13, In all cases where a Defendant is discharged c SUiMMARY CONVICTIONS. li)3 id id upon Recognizance and docs not alterwardy appear at the time and place in the Kecognizance men- tioned, the Justice who took the Recognizance, or any Justice or Justices who may then be present, having certified (F) upon the back of the Reco- gnizance the non-appearance of the Defendant, may transmit such Recognizance to the proper Officer in the Province appointed by law to receive the same, to be proceeded upon in like manner as other Recognizances, and such Certificate shall be deemed sniUciont jfrimd facie evidence of the non- appearance of the said Defendant, and the Justice or Justices may issue his or their Warrant for the apprehension of the Defendant on the information or complaint. Vt'de as to forfeiture of llecoirnizancc 32 and 3.3 Vic. e. !i() 8. 45 (intr p. 90 and as to transmission of Uccojrnizance 32 and 33 A'ic. c. 3G. s. G. post. The Justice, in all c?ises where tli«' Defendant fails to appear after entering into a Recognizance, should issue his Warrant to apprehend him ; but even if the warrant is not issued, or if the Defendant is not apprehended, the Justice can proceed with tlie case and adjudicate upon it either ex jmrtf or otherwise. Dtiicriptioit of jnopcrti) o/ jHirt tiers, mnniclpal corpora- tiong, d'C.y til ill) J iii/nniKffi'oii f>r comphiiiit^ or jii'f'^ccduigs thfreon. 14. In any information or complaint or proceed- ings thereon, in which it is necessary to state the ownership of any property ])elonging to or in pos- session of partners, joint tenants, parceners or 104 SUMMARY CONVICTIONS. teiiaiilK ill coiniiion, or jku' imlii'ls, it shall be suffi- cient to name one ol' such persons, and to state the property to belong' to tlie person so named and another, or others, as the case may be ; and when- ever in any iniormatiou or complaint or the pro- ceedings thereon, it is necessary to mention, lor any purpose whatsoever, any partners, joint tenants, parceners or tenants in common, or par iudivis, it shall be sufficient to describe them in the manner ai'oresaid ; and whenever in any information or complaint, or the proceedings thereon, it is necessary to describe the ownership of any work or building made, maintained or repaired at the expense ol" the Corporation or inhabitants of any Territorial Division or place, or ot* any materials lor the making, ahering or repairing the same, they may he therein described as the property of the inhabitants of such Terri- torial Division or ph\ce. Vidr obscrvutious on s. 1 jiute p. 151. AUln's and abcttois of nfrnre* pnii'ishnUr on sinmiutrjj voviicfion, how h'aHc. 15. Every persoix who aids, abets, counsels or procures the commission of any oflence which is punishable on summary conviction, shall be lial)l«? to ])e proceeded against and convicted for the same, either together with the principal offender, or ])efore or after his conviction, and shall l)e liable, on conviction, to the some forfeiture and punishment as the prin('ii)al otl'ender, and may be SUMMARY CONVICTIONS. 165 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, counselling or procuring was committed. A conviction cannot be procured under this section unless the principal offence lias been conimitted, though there may be accessories after the fact in regard to felonies, there can be none such in the case of an offence punishable on summary conviction, as the above section only applies to aiding, &c. the commission of any offence. The ofiender may be charged with " aiding, abetting, counselling imd procuring the com- mission of the of!encc, as these words constitute but one offence. (Expte Smith 27. L. J. (N. S.) M. C. 180; GUmi 108 ;/o/; Oke'sSyn. 114 n. (.%). A warrant of commitment, in the case of Smitli suprn, for aiding, abetting, counselling and procuring a person to commit an offence was held good where the offence of the accessory was described by reference to the offence of the principal, which was correctly stated. Where the keeper of a place of public resort instructs his servant to manage it in a such u way as to be a violation of a law declaring such management an offence punishable on summary conviction, and the servant docs so, the master is guilty of an offence within the act and the servant is guilty as aiding and abetting him within the Imp. Stat. 11 and 12 Vic. c. 43. s..r). (Wilson Appelt. vs. Stewart Kcspdt. :j B. & S. 913). Summons to /trrsons lihcly fo givr moteridl evidence, 16. If it be made to appear to any Justice of the Peace, by the oath or affirmation of any ere- 166 SUMMARY CONVICTIONS. Is ' dible person, that any person within the jurisdic- tion of such Justice is likely to give material evi- dence on behalf of the Prosecutor or complainant or Defendant, and will not voluntarily appear as a witness at the time and place appointed for the. hearing of the information or complaint, the Jus- tice shall issue his Summons (G 1) to such person, requiring him to be and appear at a time and place mentioned in the summons, ])efore the said Justice, or any other .lustice or Justices of the Peace for the Territorial Division, who may then be there, to testify what he know^s concerning the information or complaint. The Justice under this Act can is^uc lus Suiumona to witnesses for the Informant, complainant or Defendant, whilst under the 32 k 33 Vic. c. 30 he can only summon witnesses for the prosecution, {vide ante p. 74); but tlic person so to be summoned must, Uy the oath or affirmation of the person whose deposition supports the application, be shewn to be within the jurisdiction, i. o. the Territorial Division, of the Justice to whom it is made ; whilst under the 32 and 33 Vic. c. 30 he can summon any one within tlie limits of Canada {vide ante p. 74>. Wdi'i'toit if such person fails to , < t), t i. Certain roinj)/(iiii(.s nved not be in ivritiiig, dr. 20. fu all cases of complaint upon which a Justice or Justices of the Peace may make an order for the payment of money or otherwise, it shall not be necessary that such a complaint be in writing unless it be required to be so by some particular Act or Law upon which such complaint is framed. sr.MMARY roNVlPTlONf*. U>9 Ccrtuiii I'iirianveH as to time ami plnre, Icticccn injorma- tion and en'ih iicf not matcriaf. 21. Ill all cases ol* informations lor olloiicos or acts punisha})h' upon summary conviction, any variance between the information and the evidence adduced in support thereof as to the time at which such offence or act is alleged to have been com- mitted, shall not he deemed material, if it be proved that such information was in fact laid with- in the time limited by law for laying the same ; and any variance between the information and the evidence adduced in support thereof, as to the place in which the oH'ence or act is alleged to have been committed, shall not be deemed mate- rial, if the offence or act be proved to have been* committed within the jurisdiction of the Justice or Justices by whom the uiformation is heard and determined. • But if the DeJiHihint has heeu misled, Justice lanif adjouiu the case ; and on what conditions. 22. If any such variance, or any other variance between the information and evidence adduced in support thereof, appears to the .lustice or Justices present, and acting at the hearing, to be such that the party charged l>y the information has been thereby deceived or misled, the Justice or Justices upon such terms as he or they think lit, may adjoumjtjie hearing of the case to some future day, and iiTthe meantime commit (D) the Defen- dant to the Common Goal, or other prison, or to IMAGE EVALUATION TEST TARGET (MT-3) A &. w. 1.0 I.I 1.25 ''* IIIIIM IIIIM 2.0 m no 111= U iill.6 /a m. '^A e. C/A ^m . ^^ CM ry WA ^h ^ /A ^ 0^/A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^' /M>- i?., >^ 170 SUMMARY CONVICTIONS. ! !i i' » J 1;. such other custody as the Justice or Justices think fit, or may discharge him upon his entering into a Kecognizance (E), with or without Surety or Sureties, at the discretion ol' the Justice or Justi- /ces, conditioned for his appearance at the time and 1 place to which the hearing is adjourned. / Vide observations ou s. 12 ante p. 1G2 Defendant hailed and not appearing at proper time. 23. In all cases where a Defendant has been discharged upon Kecognizance as aforesaid, and does not afterwards appear at the time and place in the Recognizance mentioned, the Justice who took the Recognizance, or any other Justice or Justices who may then be there present, having certified (F) upon the back of the Recognizance the non- appearance of the Defendant, may transmit the Recognizance to the j)roper Officer in the Province appointed by law'to receive the same, to be pro- ceeded upon in like manner as other Recognizan- ces, and the Certificate shall be deemed sufficient prima facie evidence of the non-appearance of the Defendant. This section is not quite so full as s. 13. which see ante p. 162 Complaints^ (tc, need not he on oath, unless speeially so provided. 24. AH complaints upon which a Justice or .Justices of the Peace are authorized by law to make an order, and all informations for any oftence or act punishable upon summary conviction, unless It srJLMARY CONVICTIONS. 171 some particular Act or Law otherwise requires, and except in cases wherein it is herein otherwise provided, may respectively be made or laid with- out any oath or affirmation as to the truth thereof. Vide 8. 1 ante p. 148. Except irhcre irarrant is issiuid in the firgi instaiicr. (Complaint or infomiotion to he for one mntter onh/ : uioji he made by nttorney. 25. But ia all cases of informations, w^herc the •lustice or Justices receiving the same, thereupon issue his or their Warrant in the first instance, to apprehend the Defendant, and in every case where the Justice or Justices issue his or their Warrant in the first instance, the matter of the information shall be substantiated by the oath or affirmation of the informant, or by some witness or witnesse ' n hi? behalf, before the Warrant shall be issued ; *. id every complaint shall be for one matter of complaint only and not for two or more matters of complaint, and every information shall be for one oflfence only, and not for two or more offences, and every complaint or information may be laid or made by the complainant or infor- mant in person, or by his Counsel or Attorney, or other person authorized in that behalf. Vide 8. 1 ante p. 148. When no time is limited for information or complaint . Exceptions as to part of County of Sagncnay. 26. In all cases where no time is specially limit- ed for making any complaint or laying any infor" mation in the Act or Law relating to the particu- r 172 SUMMARY CONVICTIONS. n lar case, the complaint shall be made and the information shall be laid within three months from the time when the matter of the complaint or information arose, except in that part of the county of Saguenay which extends from Portnenf in the said county, to the eastward as far as the limits of Canada, including all the Islands adjoin- ing thereto, w^here the time within which such complaint shall be made, or such information shall be laid, shall be extended to twelve months from the time when the matter of the complaint or information arose. Vide s. 1 ante p. 14G. As to the hearing of com2)hunts and information. 27. Every complaint and information shall be heard, tried, determined and adjudged by one Justice or two or more Justices of the Peace, as may be directed by the Act or Law upon which the complaint or information is framed, or by any other Act or Law in that behalf Jf there be no direction in the Act. 28t If there be no such direction in any Act or Law, then the complaint or information may be heard, tried, determined and adjudged by any one Justice for the Territorial Division where the matter of the complaint or information arose. These sections refer merely to hearing and determining informations and complaints, as by s. 85, one Justice may receive the information and complaint, grant a summons or warrant thereon, and generally do all acts and matters ncces- SUMMART^ CONVICTIONS. 173 sary prelimiuary to the hearing even in cases where, by the Statute in that behalf, the information or complaint must be heard and determined by two Justices ; but it is conceived that where the Statute under which the information is laid / or the complaint made, requires cxpressfi/ that it shall be' laid or made before two Justices s. 85 does not apply. (K. vs. Griffin 9. Q. B. 155; R. vs. llussell 13 Q. B. 237l. It is also to be remembered, that it is not necessary that the Justice who acts before the hearing should be the Justi- ce, or one of the Justices, by whom the case is to be deter- mined, (s. 87 post). It is proper here to mention that though alt the Justices of each Division are equal in authority, it would be contrary to the public interest, as well as indecent, that there should be a contest between different Justices. It is therefore agreed that the jurisdiction in any particular case attaches in the first set of magistrates, duly authorized ~'io have possession and cognizance of the fact, to the exclusion nf the separate jurisdiction of all others. So that the acts of any other, except in conjunction with the first, are not only void, but such a breach of the law as subjects him to indict- ment. (R. vs. Sainsbury 4. T. R. 456; R. vs Great Marlow 2 East, 244; Paley p. 40). Wherever the concurrence of two Justices is requisite for any judicial act, they must be present and acting together during the whole of the hearing and determination of the case, (Paley p. 31 and note (z) ). In the event of the ease being heard before two Justices and of their being divided in opinion, they cannot call in a third Justice, submit the notes of the evidence to him, and thereupon with him determine the case, he being a party to the conviction or order as one of the Justices having heard the case. rlfflT i I ! II i> 174 bM M .M AR Y CO W VICTIONS. Tu he deoned an open Court. 29. The room or place in which the Justice or Justices sit to hear and try any complaint or infor- mation 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. Defendant may make full defence, and produce witnesse». 30. The party against whom the complaint is made or information laid, shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by Counsel or Attorney on his behalf. Prosecutor may he heard hy Counsel or Attorney. 31. Every Complainant or Informant in any such case shall be at liberty to conduct the com- plaint or information, and to have the witnesses examined and cross-examined by Counsel or Attorney on his behalf. Vide s. G ante p. 157. In case the Defendant does not apptear. Proceeding ex p>arte, or warrant and adjournment. 32. If on the day and at the place appointed by the summons for hearing and determining the complaint or information, the Defendant against whom the same has been made or laid does not appear when called, the Constable, or other person who served him with the summons, shall declare upon oath in what manner he served the sum- mons 3 snd if it appear to the satisfaction of the Justice or Justices that he duly served the sum- SUMMARY CONVICTIONS. 175 * mons, then the .Tustico or Justicos may proceed to hear and determine the case in the absence of the Defendant, or the Justice or Justices, upon the non-appearance of the Defendant, may, if he or they think fit, issue his or their warrant in the manner hereinbefore directed, and shall adjourn the hearing of the complaint or information until the Defendant is apprehended. If tlie Justice tliiuks tit in lieu of issuiug his warrant under s. G nute p. If)!) lie may on the service of the summons being- proved as there pohitcd out proceed to hear and deter mine the case in the absence of the Defendant ex parte. When Defendant has heen unii vs. IVnkwof.d 1 IJail Conrt Hop. :n2; \Wx. vs. Price 2 B. and Aid. CAHV). For the mode of administerinj:; the oath to the witnesses, who mnst all be sworn, or must affirm, to the truth of what they are to say vltlc ante pp. ID, 20, 21, 22. As to the rules j.50vernincts of each indi- vidual case. Previous to Confederation tlie EngUsh Act 11 and 12 Vic. c, 43. had with very fi\i*rht aherations, been adopted by tlie Parliament of Canada, and had passed ini law by virtue of 14 and 15 Vic. c. 95, afterwards forming- a portion of Cap. 103 Consolidated Statutes of Canada. Reqiiislff's of informotiou. Acrunta/ In sfufing the ojfi'iice. Forms appUaibb' fo previous Sfttfnfts. Ptn'firuhti- form hji aiihaeqvcnt Sffitntcx. In the use of the fornix of conviction given by the 32 and 33 Vic. >. 31 it must be remembered, that though doubtless the task imposed upjn Justices of the Peace of drawing up convictions is much easier of performance now-a-days than it was forty years ago. yet 1" that the same accuracy is required in the stating an offence in the conviction, now as then, the only change being that formerly the accuracy in that part of the conviction wherein the information was set out was required, whilst now-a-days it is required in what then would have been called tlie adjudication. 2'^ The forms given by the 32 and 33 Vict. c. 31, are applicable to all pre- vious penal Statutes, whether they contain particular form.^ of convictions or orders or not, and to all subsequent Statu- tes not containing particular forms of convictions or orders, (Exparte Allison 10 Exch. 551; 24 L. T. 117). 3" if by any subsequent statute a particular form be prescribed as indispensably necessary, such provision must be strictly com- plied with (R. vs. Jefferies 4 T. K. 1G9). Any defect in the manner of setting out that which in itself is surplusage, and which might be omitte The place where the conviction was so rendered, show- ing also the Territorial Division within which the said place is situate. 4'> The name, residence, and occupation of each of the Defendants. 5'> The number of the Justices convicting. Go The statement of the offence ; this is the most difficult portion of the conviction to draw, and great attention must be paid to the following points : (a) The time and place of the commission of the offence. The precise day need not be given, it is sufficiently certain if the fact be alleged to have happened between such a day and such a day, provided both the days speciiied be within the time limited by statute for bringing the information (Paley on Con. p. 155, he saying that it is only necessary that the last of the days specified be within the limited time ; R. vs. Chandler 1 Salk 378). It is however more regular and safer, when practicable, to fix the charge to a day certain (Paley p. 156 ; Hutton on Con.* p. 22 ; R. vs. Crop 7. East. 389 ; R. vs. Huggins 3 C. & P. G02; R. vs. Simpson 10 Mod. 248; Saunders ■praC 14). SUMMARY CONVICTIONS. 187 to on ler's As the conviction must expressly shew that the Justice had jurisdiction over the offence, it must be clearly and distinctly stated that it was committed within the Territorial Division, over which the convicting Justice had jurisdiction (R. vs. Austen 8 Mod. 209: R. vs. Hazell 13 East 139; In re Peerless 1 Q. B. 143). Where a place has been once men- tioned, as B. in tha District of M. it will be sufficient to allege the offence to have been committed at B. aforesaid. (R. vs. Burnaby Ld. Raym. 901). Where by a special statute, jurisdiction is given to Justi- ces of the Territorial Division within which an offender is found, the offence having been by him committed in another Territorial Division, in addition to setting out the place where the offence is committed, it is necessary to set out the fict of his having been found at some place within the Terri- torial Division of the convicting Justice (Re Peerless 1. Q. B. 143). No presumption from the manner of describing the facts, can supply the omission of a direct averment of their having occured within the jurisdiction of the convicting Justice (R. vs. Edwards 1 East 279 ; Paley p. 159 ; Hutton p. 24 ; R. vs. Chandler 14 East 274. The AdJudicatio7i,\i&-c — Immediately after the statement of the offence in form I. 1, comes the adjudication of punish- ment, being the penalty and compensation, if any, a"Hjudged and ordered by the justice to be forfeited and paid by the defendant. By certain statutes the amount of the penalty is fixed, in others the justices have the right, within certain limits, of fixing the amounts of the penalty and compensation, if any, which must appear in the adjudication. In the adjudication, the justice mu^-t measure the penalty he inflicts, by his authority under the statute inflicting the penalty for the offence of which he convicts the defendant. If the penalty is a sum certain, the defendant should be adjudged to forfeit and pay that sum certain. If on the other hand the statute in such cases gives the SUMMARY CONVICTIONS. 193 :;c(l the 1, in ts, of ualty cv the dant. id be Is the Justice the power of inflicting a pcnahy of not more, for instance, than five pounds, and not less than one pound, the Justice, if he convicts, must impose a penalty of either of those sums, or of any sum between them. But if he imposes a penalty either greater than the higher or less than the lower limit, the conviction is bad (R. vs. Pat- chett, 5 East 341 R. vs. Salomons, 1 T. R. 249). In all cases the clause of the statute fixing the penalty should be carefully and strictly pursued. (Okes. Syn. 146.) Conviction for one offence only. — By the 25th clause of the statute now under consideration, it is enacted, that every complaint shall be for one matter of complaint only, and not for two or more matters of complaint, and every information shall be for one ofience only, and not for two or more offences. The enactment with reference to the information, controls the conviction which must in all cases, save where the con- trary is provided by a subsequent statute, be for one offence ; it becomes necessary then to consider what acts, in the eye of the law, constitute but one offence. Where several acts are charged to have been committed, it depends upon the construction of the statute applicable to such acts, whether they in fact form but one offence, for which one penalty alone can be imposed, or whether each act is an offence by itself punishable in a penalty. If distinct and complete acts are committed on different days, such as killing one head of game on each day, it is clear that the killing on each day is an offence subject to a penalty ; but the difficulty arises upon a repetition of similar acts, inc pursuance of one object on the same day. With regard to cases of this description no general rule can be laid down, but the law in each case must be determined by the nature of the offence, and the manner in which the particular statute N 194 SUMMARY CONVICTIONS. applicable to it is worded. The 29 Car. 2, c. 7, made any workman exercising any work of his ordinary calling on the Lord's Day, liable to a penalty of five pounds ; but in a pro- secution instituted thereunder, it was held that a baker was only liable to one penalty for selling three loaves, though the sales were distinct, and Lord Mansfield then made use of the following words : "On the construction of the Act of Parlia- ment the oflFender is exercising his ordinary trade on the Lord's Day, and that without any fraction of a day, hours, or minutes. It is but one entire offence, whether longer or shorter in point of duration, or whether it consists of one or a number of particular acts. There can be but one and entire offence on one and the same day." Repeated offences are not the object which the legislature had in view in making the statute, but singly to punish a man for exercising his ordinary trade on a Sunday (Cripps vs. Durden, Cowp. 640). But where 12 Geo. 2, c. 36, made it unlawful for " Any person to bring into this kingdom for sale, any book or books, first composed and printed, and published in this kingdom, and reprinted in any other country," and declares " that if any person shall import, or shall sell, publish or expose to sale any such book, knowing them to have been so reprinted, every such offender beside forfeiting the said book or books, shall forfeit the sum of five pounds, and double the value of every book which he shall so knowingly sell." In an action for penalties under this Act, it was held that two penalties were recoverable for selling two books on the same day, provided the sales were distinct (Brook q. t., vs. Milligan 3, T. R. 509). In all cases then, the wording of the statute is to be care- fully considered, in order to determine whether distinct SUMMARY CONVICTIONS. 195 Ian 3, penalties arc incurred for each of sevcra! acts charged, or whether they form but on a a<;prep:ate offence, and require but one penalty (vide R. vs. Mathews 10 Mod. 27 ; Collins vs. Hopwood 15 M. & W. 459; Paley 218-221, Hutton, p. 41). Several offenders — Though several offenders may be includ- ed in one conviction for an offence jointly committed, it depends upon the wording of the particular statute appli- cable, and the quality of the offence, whether each person is liable to a distinct penalty, or all collectively to but one. The words of the section 4, of 5 Anne, c. 14, are as follows : — " If any person or persons not qualified, &c., shall keep or use greyhounds, setting dogs, hayes, lurchers, tunnels, or any other engines to kill and destroy the game, and shall thereof be convicted, &c., the person or persons so convicted shall forfeit the sum of £5." On a prosecution under the said clause, it was held that two persons could not be convicted in separate penalties for using a greyhound on the same occasion together (R. vs. Bleasdale 4 T. R. 809 ; vide also analogous cases of Hardyman vs. Whittaker 2 East 573 ; Partridge vs. Nay lor, Croke, Eliz. 480 ; Barnard vs. Gosling 2 East 569). Lord Mansfield in the case of R. vs. Clark & al, Cowp. 610, wherein a verdict had been obtained against three defend- ants for £40 each, in giving judgment on the rule to show cause why the judgment should not be arrested, on the ground that the offence of assaulting and resisting Custom House ofl&cers in the execution of their duty, and rescuing goods which had been seized, was, no matter how many persons took part in such resistance, an entire offence, for which but one penalty could be inflicted; the statute I ; i M 196 SUMMARY CONVICTIONS. providing that if any person or persons shall assault, &c., the party or parties shall for every such offence forfeit £40, said, there is no cause of greater ambiguity than arguing from - cases without distinguishing accurately the grounds upon which they arc determined. The true reason of the cases which have been cited in support of the motion and the distinction between these cases and the present is this, when the oflfence is in its nature single and cannot be severed, there the penalty shall be only single, because though several persons may join in committing it, still it constitues but one offence ; but w here _tho offence is in its nature several, and where every person concerned may be separately guilty of it, . tb'^re each offender is separately liable to the penalty ; because the crime of each is distinct from the oflfence of / the other and each is punishable for his own crime. If / partridges are netted by night, two, three or more may draw the net, but still it constitutes but one offence. (a) But this statute relates to an oflfence in its nature several, it is a several oflfence at common law, and the statute adds a further sanction against that which each man must commit severally. One may resist, another molest, another run away with the goods ; all these are distinct acts, and every one's oflfence entire and complete in its nature, therefore each person is lii'.ble to a penalty for his separate oflfence [vicle R. vs. Bleas dale 4 T. R. 809; R. vs. Hare&al, 5 T. R. 542; R. vs. Deace 12 M. &. W. 39; R. vs. King 1 Salk 182 ; R. vs. Drake 2 Show 489). But whether the oflfence is in its nature single or joint, a (a) (Qy. vide Lord Campbell's observations in expte. Smith & Till, to this eftect : " Poachers now use nets a mile long, which roqniie a hundred men to set them. Would such a case as that amount only to one offence," 22, .J. P. 383). SUMMARY CONVICTIONS. 197 lith & iwhich Is that joint award of one fine ao^ainst several defendants is erroneous ; for it ought to be several against each defendant, otherwise one who had paid his fine might be continued in prison till all the others had paid theirs, which would be in effect to punish him for the offence of another. (Paley 224 ; I' rgau vs. Brown 5 A. & E. 515; Saunders p. 74-75). But of late years the distinction formerly recognized as existing between joint, and several offencee has been done away with, and Courts treat all persons committing an offence togethrr as liable each to the full penalty imposed by the statute on the person committing such offence, so that in all such cases it is the better plan to have an information and summary case for each person charged. (R. vs. Justices of Staffordshire 32 L. J. 105; Mayhew vs. Wardley 14 C. B.(N.S.) 550; Oke's Syn. p. 112 (N. p. 33 & 151.) The same care should be taken with respect to the compensation awarded as with respect to the penalty ; the clause of the statute on which it is founded should be consulted, and the same attention paid to its provisions as in the case of the penalty. * The prosecutoi being entitled to his costs of prosecution the defendant should be udjudged to pay him by name the amount of the costs which to the Justice convicting seems reasonable, the s-'^me not being inconsisteni with the fees established by law in such case, the amount of the said costs being specified in the said conviction. In all cases where no particular mode of raising or levying the penalty compensation, or sum of money by the act or law creating, or having reference to the offence is provided, and in all cases where by the act or law authorising the convic- tion it is provided that the penalty, compensation, or sum of money is to be levied upon tlie goods and chattels of the 198 SUMMARY CONVICTIONS. defendant by distress, and the sale thereof, the justice must in his conviction order that, in default of immediate payment of the several sums mentioned in his conviction, including costs, or within a certain delay to be therein named as in the form (1 1) the said several sums shall be levied by dis- tress and sale of defendant's goods and chattels, and in default of sufficient distress that the defendant be imprisoned in the common gaol of the Territorial Division within which the conviction was made (if the statute on which the conviction is founded requires that he should be kept at hard labor, he should be condemned to such hard labor), for and during such time as is provided by the act or law on which the con- viction is founded. Term of Imprisonment. — Care should be taken as in the case of the penalty, that the imprisonment awarded be not longer or shorter than that awarded by the statute to the person committing the offence charged. (^Ante p. 192.) (b) Statute creating the offence, if no provision for Ievij>''i9 tl\c penalty . Vide s. 57, Post p. 207. Statute creating the offence, jJi'oviding impr><'^^^i^'^^^^i ^'* default of payment of penalty, &c. Vide s- ^^^ Post p. 204. Date and Signature. — The place ^Ji^^rc the conviction was rendered should be specified as being in the Territorial Division for which the Justice was appointed, and the Justice should at the foot of the conviction sign his name, and affix his seal. If two or more Justices render the conviction, the closing should be under " our hands and seals, &c.," and it should be signed and sealed by each of the Justices con- victing. (b) If tho act or law on which tlie information or complaint is founded does not specify any term of imprisonment, the Justice shall order him to be imprisoned for any period, not exceeding three months. ( Vide sec. 62. Post p. 2] 1 ) I ! SUMMARY CONVICTIONS. 199 Variations from this general form of conviction must be made : 1. When under s. 59, the Justice deems fit, instead of issuing a warrant of distress, to commit the defendant, the portion of the conviction ordering the distress is to be left out, and the following substituted "in as much as it hath now been made to appear to me, (or us, as the case ynay be,) that the issuing of a warrant of distress in this behalf would be ruinous to the said A. B., (the defendant) or his family," (or that the said A. B,, hath no goods or chattels, whereon the levy the said sums by distress). I adjudge &c., putting the condemnation to imprisonment in the manner directed by the statute, in the words of the latter part of the form (II). 2. Where by the statute creating the oflfence, imprisonment in default of payment of the penalty is ordered, the form of conviction (I 2) is to be followed, regard being had to the instructions hereinbefore given, leaving out all reference to the levying of the penalty and costs by distress. 3. Where the punishment is by imprisonment the form (I 3) is to be followed, fiUiiig up the blanks therein according to the foregoing instructions, leaving out all mention of any penalty. In this case a warrant of distress must be ordered to levy the costs, unless it be made to appear to the Justice that the issuing of such warrant would be ruinous to the defendant and his family, or that he has no goods or chattels whereon to levy the costs by distress, when imprisonment in addition to that ordered as the punishment of the offence may be adjudged against him, determinable however on payment of such costs. {Vide form No. 18.) Orders. — In filling up the fonns, K 1, K 2, K 3, the instructions hereinbefore given with respect to the forms of 200 SUMMARY CONVICTIONS. If l! ! convictions should be borne in mind, and it would be also better that in any order made under this Act the Justice should expressly adjudicate the complaint to be true, as the Court of Queen's Bench in England decided in the case of Labalmondiere vs. Frost 28 L. J. (N. S.), M. C. 155, that an order therein referred to, although drawn according to the form K. 3, was bad on its face for not adjudging the com- plaint to be true. The formal conviction may be drawn up even after a distress and warrant of commitment have issued upon it. (Paley 5 Ed. 292, note i-m). And where by mistake, and without any intention to mislead or defraud, a copy be delivered to the party misstating the name of the informer, or any other fact, and a more correct one be returned to the Sessions, that Court can only take notice of the latter. (R. vs. Allen 15 East 333, 346.) Indeed, it is allowed that the formal conviction may be drawn up at any time before it is acted upon (Per Erie J. in Bott vs. Ackroyd 28 L. J. (M. C.) 208, or before the return of the certiorari, although after a commitment (Massey vs. Johnson 12 East 82), or after the penalty has been levied by distress (R. ''s. Barker 1 East 186), or after action brought against the Magistrate ^Lindsey vs. Lee, 11 Q. B. 455 ; Massey vs. Johnson, su2)ra ; Gray vs. Cookson 16 East 13), or as it seems, even after the conviction has been returned to the Sessions (see Basten vs. Carew 5 D. & R. 558; R. vs. J. J. Huntingdon 5 D. k R, 558 ; R. vs. Allen, supra). But it must bo drawn up before the former one has been quashed for informality (Chancy vs. Payne 12 B. 712; R. vs. Chaney 6 Dowl, 281), or the defendant has been discharged for such cause, even although the conviction may not have been removed or quashed Charter vs. Grtcme 13 Q. B. 216). I SUMMARY CONVICTIONS. 201 . it. and be mcr, ) tlie I. vs. i the it IS . J. ), or er 1 strate ten vs. . & K. before ^ley vs. or tlic tliougb luusbed Certificate If he dismiss the compluinty dc. 43. If the Justice or Justices dismiss the infor- mation or complaint, he or they may, when required so to do, make an order of dismissal of the same (L), and shall give the defendant a Certi- ficate thereof (M), which certificate upon being* afterwards produced, shall without further prool, be a bar to any subsequent information or com- plaint for the same matter, against the same i)arty. Care should be taken in making- out the certificate, that the subject matter of the information or complaint be pro- perly set out therein. The form (INI) is in the foUowint; words, "for that (or as in the snmmons),^^ so that care must be taken, if there be any variance between the subject matter, as set out in the information or complaint, and the evidence given, that the certificate show the true subject matter which was contested between the parties. In filling up the form (L.), reference should be made to those portions of the instructions relating to, convictions applicable thereto. [Ante p. 187-193). If information or complaint negatives any exemj^tion, dr. 44. If the information or complaint in any case negatives any exemption, exception, proviso, or condition in the Statute on which the same is framed, it shall not be necessary for the Prosecutor or Complainant to prove such negative, but the Defendant may i)rove the affirmative thereof in his defence, if he would have advantage of the same. (T7c?c Ante p. 191) 202 SUMMARY CONVICTIONS. Prosecutors and complainants in certain cases to he com- petent witnesses y and examined upon oath, dhc. Proviso, 46. Every prosecutor of any information not having any pecuniary interest in the result, and every complainant in any complaint whatever his interest may be in the result of the same, shall be a competent witness to support such informa- tion or complaint ; and every witness at any hear- ing shall be examined upon oath or affirmation, and the Justice or Justices before whom any witness appears for the purpose of being examin- ed, shall have full power and authority to admin- ister to every witness the usual oath or affirmation ; provided that no prosecutor shall be deemed incompetent as a witness on the ground only that he may be liable to costs. A difference is here created between summary convictions and orders. In seeking to obtain a conviction, the infor- mant if he has no pecuniary interest, can be a witness, but if he seeks thereby compensation for a wrong he cannot testify, the same rule applies to the informant's wife. On the other hand a complainant seeking an order, whatever his interest may be, is a competent witness, and his wife is also com- petent. ? Possible liability for costs is no disqualification. Justices may adjourn hearing of any case and commit defendant or suffer him to go at large on recognizance. P roviso 46. Before or during the hearing of any infor- mation or complaint, any one Justice or the / y SUMMARY CONVICTIONS. 203 Justices present, may in his or th**''^ discretion, adjourn the hearing of the same ^ a certain time and place to be then appointed and stated in the presence and hearing of th^ party or parties, or of their respective Attorn *^ys or Agents then present, and in the meantim- the Justice or Justices may suffer the Defendant to go at large or may com- mit (D) him ^^ the Common Graol or other prison, within ^^^ Territorial Division for which the Just^^^e or Justices are then acting, or to such rtlier safe custody as the Justice or Justices think fit, or may discharge the Defendant upon his recognizance (E), with or without sureties, at the discretion of the Justice or Justices, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned, but no such adjournment shall be for more than one week. ■""T^tf^e Ante p. 90) If defendant or prosecutor do not appear, the case may nevertheless be heard. 47. If, at the time and place to which the hearing or further hearing has been adjourned, either or both of the parties do not appear, per- sonally or by his or their Counsel or Attorneys respectively, before the Justice or Justices or such other Justice or Justices as may then be there, the Justice or Justices then there present may proceed to the hearing or further hearing as if the party or parties were present. / \ N, 11 I ( iiii ! 204 NUMMARY CONVICTIONS. 1/ the j)i'Oscch^^ty Joes not appear. 48. If the Pi^secutor or Complainant do not appear, the Justict or Justices may dismiss the information with or \uthout costs, as to him or them seems fit. If defendant fail to reappear, cK. 49. In all cases when a Defenaca^t is discharged upon his recognizance, and does no*;, afterwards appear at the time and place mentioned in the recognizance, the Justice or Justices who toot the recognizance, or any other Justice or Justict« who may then be there present, having certified (F) on the back of the recognizance the non- appearance of the accused party, may transmit such recognizance to the proper officer appointed to receive the same by the laws of the Province in which the recognizance was taken, to be pro- ceeded upon in like manner as other recognizantes, and such certificate shall be deemed sufficient prima facie evidence of the non-appearance of the Defendant. Form of convictions mat/ he as in schedule where no form is given in aniifnlijix Mtatute. 50- In all cases of conviction where no parti- cular form of conviction is given by the Act or Law creating the offence or regulating the prose- cution for the same, and in all cases of conviction uppjiActs or Laws /hitherto passed,^ whether any particular form of conviction has been therein given or not, the Justice or Justices who convict, -m SUMMARY CONVICTIONS. 205 ^may draw/up his or their conviction, on parch- ment or on paper, in^such one of the forms of conviction (I 1, 2, 3)^s may be applicable to the case, or to the like effect. Vide 9. 35 S 13, Ante, pp. 176 ct 162 Where no special form of order is so given, form in schedule may he adopted. 61. In case an order be made, and no particular form of order is given by the Act or Law^ giving authority to make such order, and in all cases of orders made under the authority of any Acts or Laws hitherto passed, whether any particular form of order is therein given or not, the Justice or Justices by whom the order is made, may draw up the same in such one of the forms of orders (K 1, 2, 3) as may be applicable to the case, or to the like effect. Vide Ante, s. 42, and observations thereon, p. 199. Defendant to he served with cop)y of the minute hefore distress or commitment. 52. In all cases when by any Act or Law authority is given to commit a person to prison, or to levy any sum upon his goods or chattels by distress, for not obeying an order of a Justice or Justices, the Defendant shall be served with a copy of the Minute of the Order before any warrant of commitment or distress is issued in that behalf, and the Order or Minute shall not form any part of the warrant of commitmant or of distress. ■:'! '%':- 206 SUMMARY CONVICTIONS. i' 5! A distinction is hereby made between convictions and orders ; in the case of a conviction there is no necessity for serving the defendant with a copy of the minute ; but, ere a commitment or warrant of distress can issue in the case of an order, the defendant must be served with a copy of its minute. The service thereof should be made in the same way as that of a summons. (Ante p. 152.) The formalorder need not be drawn up before the warrant issues (Ratt vs. Parkinson, & al 20 L. J. M. C. 208, 210; Expte. Johnson 3 B. & S. 947). Justices may award costs not inconsisttnt with the fees established by law. 53. In all cases of Summary Connction, or of Orders made by a Justice or Justices of the Peace, the Justice or Justices making the same, may in his or their discretion, award and order in and by the conviction or order, that the Defendant shall pay to the Prosecutor or Complainant such costs as to the said Justice or Justices seem reasonable in that behalf, and not inconsistent with the fees established by law to be taken on proceeding had by and before Justices of the Peace. Costs may be awarded to defendant when the case ii dismissed. 54- In cases where the Justice or Justices, instead of convicting or making an order, dismiss the information or complaint, he or they, in his or their discretion, may, in and by his or their order of dismissal, award and order that the Prosecutor or Complainant shall pay to the Defendant such costs as to the said Justice or Justices seem reasonable and consistent with law. SUMMARY CONVICTIONS. 207 It Costs so alio wed shall be spccijied. 55. The sums so allowed for costs ^hf^ iii all cases be specified in the conviction v>r order, or order of dismissal, and the same st«*ll be recover- able in the same manner an<3 under the same Warrants as any penalty a^J'^dged to be paid by the conviction or order ^ to be recovered. And may he recoveret^ by distress. 56. In cases where there is no such penalty to be recovered, such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of distress, by imprisonment, with or without hard labour, for any time not exceeding one month, unless the costs be sooner paid. Vide s. 42, ante p. 198 ; s. 56 refers to orders of dismissal alone, vide s. 64, post p. 219. Justice may issue warrant of distress in cases where a pecuniary jyenalty, t&c, has been, adjudged. 57- Where a conviction adjudges a pecuniary penalty or compensation to be paid, or where an order requires the payment of a sum of money, and by the Act or Law authorizing such convic- tion or order, the penalty, compensation, or sum of money is to be levied upon the goods and chattels of the Defendant, by distress and sale thereof ^nd also in cases where, by the Act or / Law in that behalf, no mode of ra,ising or levying ) the penalty, compensation or sum of money, or of enforcing the payment of the same, is stated or provided, the Justice or any one of the Justices 1^ 208 SUMMARY CONVICTIONS. ( TnaK^ig such conviction or order, or any Justice J of the Peace for the same Territorial Division, jf may issue i^is Warrant of Distress (N 1, 2) for the 4 purpose of levying the same, v^^hich Warrant of ^ Distress shall be ir. writing, under the hand and •/ seal of the Justice maVing the same. Vide 8. 42, ante p. 197. Jn certain cases xmrrant may tx hachcdfoi' execution ui another jnrisdict ion. 68. If, after delivery of the warrant of distress to the Constable or Constables to whom the same has been directed to be executed, sufficient distress cannot be found within the limits of the jurisdic- tion of the Justice granting the warrant, then upon proof being made upon oath or affirmation of the handwriting of the Justice granting the warrant, before any Justice of any other Terri- torial Division, such Justice shall thereupon make an endorsement (N 3) on the warrant, signed with his hand, authorizing the execution of the w^arrant within the limits of his jurisdiction, by virtue of which warrant and endorsement the penalty or sum, and costs, or so much thereof as may not have been before levied or paid, shall be levied by the person bringing the warrant, or by the person or persons to whom the warrant was originally directed, or by any Constable or other Peace Officer of the last mentioned Territorial Division, by distress and sale of the goods and chattels of the Defendant therein. Vide s. 11, ante pp. 161 and 162. SUMMARY CONVICTIONS. 208 \Vhr)i the issuing of a warrant ironld he ruinouH to ih'/cndant, or thrrc are no goods. Justice may mmmit him. 69. Whenever it appears to any Justice of the Peace to whom application is made for any war- rant of distress|that the issuing thereof would be ruinous to the Defendant and his family, or when- ever it appears to the Justice, JjyiJiie confession ' of the Defendant or otherwise, that he hath no goods and chattels whereon to levy such distress, then the Justice, if he deems it fit, instead of issuing a warrant of distress, may (O 1, 2) commi^ the Defendant to the Common G-aol, or other prison in the Territorial Division, there to be imprisoned with or without hard labour, for the time and in the manner the Defendant could by )law_bjB committed 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. Vide s. 42, ante, p. 199 s. 62, post p. 211. When distress is issued, defendant may he hailed or detained until it it returned. 60. Ill all cases where a Justice of the Peace issues any warrant of distress, he may suffer the Defendant 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 the warrant of distress, unless the Defendant gives sufficient security, by recognizance or otherwise, to the o 210 SUMMARY CONVICTIONS. rl ■' i;i satisfaction of the Justice, for his appearance before him at the time and place appointed for the return of the warrant of distress, or before such other Justice or Justices for the same Terri- torial Division, as may then be there. 1/ defendant docs not afterwards appear, the recognizance to he certified and transmitted to the proper officer. fl, In all such '^ases where a Defendant gives security by recognizance, and does not afterwards appear at the time and place in the said recog- nizance mentioned, the Justice who hath the same, or any Justice or Justices who may then be there present, upon certifying (F) on the back of the recognizance the non-appearance of the Defendant, may transmit the recognizance to the proper officer appointed by law to receive the same, to be proceeded upon in like manner as other recog- nizances, and such certificate shall be deemed sufficient pritna facie evidence of the non-appear- ance of the Defendant. Vide ss. 13, 35 & 49, ante. In default of sufficient distress, Justice may commit defend- ant to i^rison. ' Iroviso: Term limited. , 62 If at the time and place appointed for the return of any warrant of distress, the Constable, who has had execution of the same returns (N 4) that he could find no goods or chattels whereon he could levy the sum or sums therein mentioned, together with the costs of, or occasioned by the SUMMARY CONVICTIONS. 211 -fend- Ir the liable, (N4) lereon [oned, )y the levy of the same, the Justice of the Peace before whom the same is returned may issue his warrant of commitment (N 5) directed to the same or any other Constable, reciting the conviction or order shortly, the issuing ol the warrant of distress, and the return thereto, and requiring the Constable to convey the Defendant to the Common Gaol, or other prison of the Territorial Division for which the Justice is then acting, and there to deliver him to the Keeper thereof, and requiring the Keeper to receive the Defendant into such gaol or prison, and there to imprison him, or to imprison him and keep him to hard labor, in the manner and for the time directed by the Act or Law on which the conviction or order mentioned in the warrant of distress is founded, unless the sum or sums adjudged ^o be paid, and all costs and charges of the d^otress, and also the costs and charges of the commitment and conveying of the Defendant to prison, if such Justice thinks lit so to order (the amount thereof being ascertained and stated in such commitment,) be sooner paid ; / but if no term of imprisonment be specified in the [ AcTo'r Law, the period for which the Justice shall order theT)efendant to be so imprisoiiect shall not exceed three months. Warrant of Distress, Form of. — The proper mode of proccedin2; after conviction, where in the first instance the penalty, sum of money, compensation or costs is to be levied by distress, is, if immediate payment be enjoined by the 212 SUMMARY CONVICTIONS. statute, or otherwise at the expiration of a limited time, for the Justice to make a warrant, in the form (N), in the case of a conviction, or in the foru (N 2), in the case of an order, in writing under his hand and seal, reciting the offence, con- viction and adjudication as in the conviction men-tioned, or the complaint order and adjudication, as in the order set out. Then a statement of non-payment of the sums so specified, and an order to the officers to levy them. The blank in the form left for the number of days granted to the defendant for payment should be filled up in such a manner as to give him sufficient time to procure the means of payment (Jones vs. Johnson 5 Exch. 862, 876 ; S. C, in error 7 Exch. 452; R. vs. Williams 19, L. J. M. C. 126); and it is submitted that at least four, and not more than eight days should elapse between the distress and the sale. (Paley 308). Femme Covert — Partners, — If the offender be a femme cov- ert subject, to this species of conviction, [ante p. 149) the goods of the husband are not liable to be distrained for the penalty. If the penalty be recoverable by distress against ofibnders who are partners, the constable may it is conceived seize both the joint and separate efiects, or either, as on a hxy or seizure by the Sheriff, each party being answerable for the whole, and not merely for a proportionate part. (Oke's Mag. Syn. 176). Defective order or conviction, — A warrant of distress founded upon and reciting a defective order or conviction, is bad (Day vs. King 5 A. & E* 359). It should be warranted by the conviction, and all those facts must appear upon its face, which are necessary to give jurisdiction to the Justices over the subject matter (Johnson vs. Reid, 6 M. & W. 124 ; Re Peerless 1 Q. B. 143 ; Paley 308). SUMMARY CONVICTIONS. 213 DefendiUit not to suffer hy distress and imprisonment on one conviction. — Where an offender is convicted in one penalty, under a statute providing a corporal punishment on failure of sufl&cient distress, and has effects sufficient only to satisfy part, it has been held the goods ought not to be taken but the corporal punishment should be resorted to. if, how- ever, the same person be separately convicted in two penalties, and his goods are sufficient to satisfy one only, they ought to be levied under one conviction, and the corporal punishment should be inflicted under the other ; but the law never intended that a man should suffer Vx>th punishments for one convic- tion (Okes Mag. Syn 176 ; R. vs. Wyatt 2 Ld. Raym. 1195). Duty of Constable. — It is laid down by Mr. Sergeant Hawkins that, upon the warrant of a Justice for levying a forfeiture, where the whole or any part thereof belongs to the Queen, the officer is justified in br'^aking open outer doors for the execution of the warrant ; but there seems to be no such power in other cases, where no part of the penalty is vested in the Crown ; but under sec. 93 post, any Judge of Sessions, Police Magistrate, or Stipendiary Ma zistrate, in all cases where resistance is offerepcal at Common Laic. — At Common Law an appeal is no stay of execution, without a special order for that purpose. A writ of error, even when allowed and returnable, is no supersedeas of execution in criminal cases where there has been sentence and imprisonment. If the party convicted was in prison under his sentence when the writ of error was sued out, he continued in prison pending the writ of error, and if he was not, he might still be taken and imprisoned pending the writ of error {Vide Kendall vs., Wilkinson, 4 E & B. G80 , Hope vs. Hope, 23 L. J. (N. S.) Chanc. 682 ; King vs. Brooke, 2 T. 11. 196). There can be no doubt that where the notice of appeal and the recog- nizance are duly given, execution is suspended, for the Justice, in the section now under consideration, is directed to liberate the Appellant if in cu.stody in such case, and the same effect «H^jj SUMMARY CONVICTIONS. 227 is given to the making of the deposit after notice of appeal ; but the section is singularly barren of any provision to meet the circumstances when the would be Appellant elects to remain in custody in lieu of giving a recognizance or making a deposit. There is in fact no provision as to the suspension of execution in such case, and taking for instance a convic- tion by which a defendant is oondemn3d in a penalty of fifteen dollars, and in default of suflScient distress is ordered to be imprisoned siix weeks, the Court to which he appeals does not sit for ten weeks, is he to remain in prison until the Court so sits a space of ten weeks, in order to enable him to reverse a conviction or order condemning him to six weeks incarceration ? and if he fails in his appeal is he to be imprisoned for another term of six weeks under the convic- tion ? Or is his detainer in custody to be considered as in execution of the conviction or order ? and is he to be dis- charged at the expiration of the six weeks, and not detained in custody until the Court to which he has appealed sits ? What should the Justice of the Peace do in the event of the Appellant declaring his option to remain in custody, at the same time asserting that his chattels are sufl&cient to satisfy the conviction, without injury to himself or his family ? It would be far better were some amendments made by which, on .service of notice of appeal, and a signification to the convicting Justice of the Appellant's willingness that the conviction or order should be executed, that the Appellant might have his appeal, and the conviction be executed according to its tenor and efiect. provision being made in the event of the amount of penalty and costs being levied under the distress for its being returned to the Appellant in the event of his succeeding on his appeal. The recognizance should be in' the form (No. 50) in the Appendix to this Act, and can be received by any Justice. 228 SU3IMARY CONVICTIONS. Where only a penalty or sum of money and costs arc adjudged to be paid, as already mentioned, the Appellant may deposit with the Justice such sum of money as the Justice shall deem mfficient to cover the sums adjudged by the conviction or order and the costs of appeal. This deposit can only be received by the Justice or Justices convicting, and on his or their refusal to fix or receive the deposit, it is submitted that a Mandamus could issue to force them to per- form their said duties ; care should also be taken that the sum fixed for the deposit be not exorbitant. The order for liberation of the Appellant from custody, on his complying with the conditions of notice, and recognizance or deposit should be served on the gaoler. Hearing and determining Appeal. — Under s. 72, post p. 236, every Justice of the Peace, before whom any person .shall be summarily convictod of any offence by virtue of this Act, shall transmit the conviction to the proper Court or Judge in Appeal before the time when an appeal from such conviction could be heard, there to be kept by the proper officer among the records of the Court ; but, strange to say, there is no similar provision with respect to orders. There can be no doubt, however, that the intention of the Legisla- ture was to assimilate the proceedings on convictions and orders, as both by the Imp. Act, c. 43, s. 14, and the old Canadian Act, C. S. C. c. 153, s. 42, it is provided that all convictions and orders shall be " lodged with the Clerk of " the Peace, to be by him fyled among the Records of the " General or Quarter Sessions of the Peace." The Justice, therefore, should follow the same course of proceeding in the matter of orders as in that of convictions. On the hearing of appeals, the first step after the appeal is called on is, that the Appellant should prove his notice, unless « i-ri r!i! SUMMARY CONVICTIONS. 229 [at lot' ihe 3C, the is it be admitted. As soon as the notice of appeal has been proved or admitted the Clerk of the Court proceeds to read the conviction which has been returned by the convicting Justices. If any objections arise on the face of the convic- tion, the Appellant usually begins ; and if he does so he is bound to state all his objections thereto at once, in order that they may be met on the other side. No objection can be made in appeal, unless it has been taken before the Justice, and no variance can be taken advantage of unless it be shewn that the Justice refused to adjourn the hearing, the person summoned having been deceived or misled thereby {Vide s. G7, post p. 231). But it is also provided that in all cases of Appeal, the Court or Judge to which the Appeal is taken shall hear and determine the original charge or complaint on its merits, notwithstanding any defect of form or otherwise in such conviction or order ; and if the person charged or complained against is found guilty, the conviction or order shall be affirmed, and the Court shall amend the same if necessary ( Vide s. 68, post p. 232). Though the two clauses may be slightly contradictory, yet it may be laid down as the governing principle in matters of appeal, that the case must be heard on the merits, if the charge or complaint disclose an oflFence punishable on summary conviction, or a subject matter on which an order can be made. The observations on«. 5 and s. 12, ante p. 154 apply to appeals. If no objections to the conviction or order be made, cither of the parties, Appellant or Respondent, may request that a jury be empanelled to try the facts of the case, and thereupon the Court must empanel such jury. There can be no challenge in such case except for cause (Vide as to oath to jurymen, s. G6, post p. 231). On the finding of the jury, the Court shall give such judgment as the law requires, that is to suy if 230 SUMMARY CONVICTIONS. i the verdict be for the Appellant, the conviction should be quashed, and if a deposit has been made, that it should be returned to the Appellant, if on the contrary the verdict be in favor of the Respondent, the appeal should be dismissed, and the conviction or order be aflfirmed, the defendant should be ordered to be punished according to the conviction, or to pay the amount adjudged by the order, and such costs as may be awarded ; and in the event of a deposit, it may be, decreed that the sums ordered to be paid by the conviction or order, together with the costs below and in appeal should be paid out of it, and the remainder returned to the Appellant. No special provision is made on the subject of awarding costs to the Appellant in the event of success ; but s. 74 seems to vest in the Court a di^retion to be exercised in the matter of costs with respect to both Appellant and Respon- dent. In the event of the appeal being dismissed, the Court to which the appeal has been taken can issue its own process to enforce its judgment by this section ; but by s. 75, provision is made for the recovery of costs ordered to be paid by any party who has not been bound by recognizance conditioned to pay the same by warrant of distress, and in default of sufficient distress the party may be imprisoned for any time not exceeding two months. Quashing conviction or order, entry of. — When any fton- viction or order is quashed by the Court of Appeal, an entry thereof should be made by the Clerk of the Peace or other proper officer, on the back of such conviction or order, and whenever a copy of such conviction or order be mnde, a copy of such entry should always be added thereto, forming sufficient evidence of the conviction or order having been quashed. SUMMARY CONVICTIONS. 231 Court appealed to maij empanel a Jim/ to try the case. 66. When an appeal has been lodged m due form and in compliance with the requirements of this Act, against any summary conviction or decision, the Court of G-eneral or Quarter Ses- sions of the Peace or Court appealed to, may at the request of either appellant or respondent, empanel a Jury to try the facts of the case, and shall administer to such Jury the follow^ing oath : Oath of Juror. "You shall well and truly try the facts in dispute in the matter of A. B., (the informant) against C D., (the defendant), and a true verdict give according to the evidence: So help you God." Judgment. Proviso ; as to evidence. And the Court, on the finding of the Jury, shall give such judgment as the law requires ; and if a Jury be not so demanded, the Court shall try and he the absolute judges as well of the fact as of the law in respect to such conviction or decision ; but no witness shall in either case be examined who was not examined before the Justice or Justices at the hearing of the case. Ajypeal not to he based on alleged defect in form or substance, wdess the same was objected to before the Jus- tice, and he refused to adjourn the case, (i'c. 67. No judgment shall be given in favor of the appellant if the appeal is based on an objection to 232 SUMMARY CONVICTIONS. i any inlormation, complaint or summons, or to any warrant to apprehend a defendant, issued upon any such information, complaint or summons, for any alleged defect therein in substance or in form, or for any variance between such infor- mation, complaint, summons or warrant and the evidence adduced in supi)ort thereof at the hear- i^ig of such information or complaint, — unless it shall be proved before the Court hearing the appeal that such objection was made before the Justice or Justices of the Peace before whom the case was tried and by whom such conviction, judgment or decision was given — nor unless it is proved that notwithstanding it was shewn to such Justice or Justices of the Peace that by such variance the person summoned and appearing or apprehended, had been deceived or misled, such Justice or Justices refused to adjourn the hearing of the case to some further day, as provided by this Act. Decision to he given on the merits, notwithstanding defect of form in conviction, which may he aynended. 68. In all cases of appeal from any summary conviction or order had or made before any Jus- tice or Justices of the Peace, the Court to which such appeal is made shall hear and determine the charge or complaint on which such conviction or order has been had or made upon the merits, not- withstanding any defect of form or otherwise in such conviction or order ; and if the person SUMMARY CONVICTIONS. 233 charged or complained against is found guilty the conviction or order shall be affirmed and the Court shall amend the same if necessary, and any conviction or order so affirmed or affirmed and amended shall be enforced in the same manner as convictions or orders affirmed in appeal. If aiiptal is abandoned, after notice given, costs to be recovered. 69. And for the more effectual prevention of frivolous appeals, the Court of General or Quarter Sessions of the Peace or other Court or Judge to whom an appeal is made, upon proof of notice of the appeal to such Court having been given to the person entitled to receive the same, though such appeal v^^as not afterwards prosecuted or entered, may, if snch ai)peal has not been aban- daned according to law, at the same Court for which such notice was given, order to the party or parties receiving the same such costs and charges as by the said Court or Judge may be thought reasonable and just, to be paid by the party or parties giving such notice, such costs to be recoverable in the manner provided by this Act for the recovery of costs upon an appeal against an order or conviction. Proceedings after Appeal. 70. In case an appeal against any conviction or order be decided in favor of the Respondents, the Justice or Justices who made the conviction ■ ifcifcirn 111 234 SUMMARY CONVICTIONS. or order, or any other Justice of the Peace for the same Territorial Division, may issue the warrant of distress or commitment for execution of the same, as if no Appeal had been brought. No certiorari, erson for a subsequent offence, a copy of such conviction, certified by the projier officer of the Court, or proved to be a true copy, shall be sufficient evidence to prove a con- viction for the former offence, and the conviction shall be i>resumed to have been unappealed against, until the contrary be shown. Vide s. 65, ante p. 228. Effect of conviction if no appeal. 73. In all cases where it appears by the con- viction, that the defendant has api)eared and l^leaded, and the merits have been tried, and that the defendant has not api:)ealed against the conviction where an appeal is allowed, or if appealed agamst, the conviction has been affirmed, such conviction shall not afterwards be set aside, SUMMARY CONVICTIONS. 237 or vacated in consequence of any detect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case. To whom rosfs to he pai/tihlp, 74. If upon any Appeal the Court trying the Appeal orders either party to pay costs, the order shall direct the costs to be paid to the Clerk of the Peace or other proper officers of the Court, to be by him paid over to the party entitled to the same, and shall state within what time the costs shall be paid. Vide s. G5, ante p. 230. This clause should have required the costs in all cases to be paid to the Clerk of tlie Court, or of the Judge sitting in Appeal, and should also state within what time the costs in all cases should be paid. It is requisite, under this clause? that the order to pay costs within a certain specified time to the proper officer sliould be incorporated in the order dismissing th2 appeal, or quashing the conviction. 75. If the same be not paid within the time so limited, and the party ordered to pay the same has not been bound by any recognizance condi- tioned to pay such costs, the Clerk of the Peace or his Deputy, on application of the party entitled to the costs, or of any person on his behalf and on pavmeiit of any fee to which he may be entitled, ant to the party so applying, a Certificate I the costs have not been paid, and upon odivotion of the Certificate to any Justice or 238 SMMMARY CONVICTIONS. J'ustices of the Peace for the same Territorial Division, he or they may enforce the payment of the costs by "Warrant of Distress [S 1] in manner aforesaid, and in default of distress he or they may commit [S 2] the party against whom the warrant has issued in manner hereinbefore mentioned, for any time not exceeding two months, unless the amount of the costs and all costs and charges of the distress and also the costs of the commitment and conveying of the party to prison, if the Justice or Justices think fit so to order (the amount thereof being ascertained and stated in the com- mitment), be sooner paid. Vide ante, s. 65, p. 230. 76. Every Justice of the Peace, shall make a return in writing under his hand of all convictions made by him to the next ensuing General or Quarter Sessions of the Peace, or to the next term or sitting of any Court having jurisdiction in appeal as hereinbefore provided, at which, in either case, the appeal can be heard, for the District or County or place in w^hich such convic- tion takes place, and of the receipt and application ' by him of the moneys received from the Defend- ants (and in the case of any convictions before two or more Justices, such Justices, being present and joining therein, shall make a joint Return thereof,) in the following form : — 8UMMART CONVICTIONS. 239 Return of Convictions made by me {or us, as the case may be) in the month of 18 o O . s ^ S5 1 1* 1> ic c h x> e3 Q ^ u y u ^ ^ ■♦J ■•i^ O ■^ 0) ti G ta a S 3 r-TS 58 ^^ iz; \ c o C3 O o 5? ^ o ce o a Hi "2 ^ X ^ -5 E^ If not paiJ, why not, and general observation!* if any. A. B., Convicting Justice, or A. B. and C. D., Convicting Justices, (an the case may he.) Return of subsequent receipts, d'c. 77. And any Justice or Justices to whom any such moneys may be afterwards paid, shall make a Return of the receipts and application thereof, to the next General or Quarter Sessions of the Peace, or other Court as aforesaid, which return shall be filed by the Clerk of the Peace, with the records of his office. ^xO SUMMARY CONVICTIONS. Penalty on Justices of the Peace neglecting to comply icith the provisions of this Act as to returns, &c. 78. In case the Justice or Justices, before whom any such conviction takes place or who receives any such moneys, neglect or refuse to make such return thereof, or in case any such Justice or Justices wilfully make a false, partial or incorrect return, or wilfully receive a larger amount of fees than by law they arc authorized to receive, such Justice or Justices, so neglecting, or refusing, or wilfully making such 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 suing for the same by action of debt or information in any Court of Record in the Province in which such Return ought to have been or is made, one moiety whereof shall be paid to the party suing, and the other moiety into the hands of Her Majesty's Receiver General to and for the public uses of the Dominion. Actions for such penalties limited to six months after cause. 79. All prosecutions for penalties arising under the provisions of the next preceding section shall be commenced within six months next after the cause of action accrues, and the same shall be tried in the District, County or place wherein such penalties have been incurred, and if a verdict or judgment passes for the Defendant, or the Plaintiff BUM MART CONVICTIONS. 24t becomes non-suit, or discontinues the action after issue joined, or if upon demurrer, or otherwise, judgment be given against the Plaintiflf, the De- fendant shall recover his full costs of suit, a& between Attorney and Client, and shall have the like remedy for the same, as any Defendant hath* by law in other cases. Clerk of the Peace, due, to puhliih and post up the returns so made. 80. The Clerk of the Peace of the District or County in vrhich any such returns are made or the proper officer, other than Clerk of the Peace to whom such returns are made shall, within seven days after the adjournment of the next ensuing G-eneral or Quarter Sessions, or of the term or sitting of r.uch other Court, as aforesaid, cause the said returns to be published in one public newspaper, in the District or County, or if there be no such newspaper, then in a news- paper of an adjoining District or County, and shall also fix up in the Court House of the District or County and also in a conspicuous place, in the Office of such Clerk of the Peace, for public inspection, a Schedule of the returns so made by such Justices ; and the same shall continue to be so fixed up, and exhibited until the end of the next ensuing General or Quarter Sessions of the Peace or of the term or sitting of such other Court as aforesaid, and for every Schedule so made and exhibited by the said Clerk of the> 242 SUMMARY CONVICTIONS. Peace, he shall be allowed the expense of public- ation, and such fee as may be fixed by competent authority. Copy of returns to be sent to Minister of Finance. 81- The Clerk of the Peace or other officer as last aforesaid of each District or County, within twenty days after the end of each General or Quarter Sessions of the Peace, or the sitting of such Court as aforesaid, shall transmit to the Minister of Finance a true copy of all such returns made within his District or County. Not to prevent prosecution of a Justice in default. 82. Nothing in the six next preceding sections shall have the effect of preventing any person aggrieved, from j^rosecuting by indictment, a Justice of the Peace, for any offence, the com- mission of which would subject him to indictment at the time of the coming into force of this Act If the misconduct of magistrates, besides being productive of private injury, be such as to call for punishment on public grounds, as where it proceeds not from error, bnt from private interest or resentment, the Court of Queen's Beach or the Court in the Province occupying the position in criminal matters of the Court of Queen's Bench in England, will direct an information to be filed by the officer of the Court, upon a proper application, supported by affidavits ; but an information is never granted for an irregularity aris- ing merely from ignorance or mistake (R. vs. Cozens, Doug. 426; R. vs. Fielding, 2 Burr, 720; R. \ Allington, 1 Str. 678; R. vs. Badger, 4 Q. B. 468; R. vs. Lovet, 7 T. R. 152; Paley 482, 483). SUMMARY CONVICTIONS. 243 An indictment will lie in all cases in which a criminal information may be granted. So in the case of R. vs. Borron, 3 B. & Aid, 434, which was an application for an informa- tion against a magistrate and refu.sed, Abbott, C. J. in delivering the judgment of the Court said, '• They (the Justices) are, indeed, like every 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 this head, either by way of indictment or application to this Court for a 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 dishonest, oppressive or corrupt motive, under which descrip- tion fear and favor may generally be included, or from mistake or error. In the former case alone, they have become the objects of punishment. To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake, belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom." In cases, however, where the public safety is at stake, a magistrate is punishable for gross neglect in the performance of his duties (R. vs. Pinney, 3 B. & Ad. 1)47 ; Paley 484). In case of tender or payment of the amount of distress. 83- In all cases where a warrant of Distress has issued against any person, and such person pays or tenders to the Constable having the execution of the same, the sum or sums in the w^arrant mentioned, together with the amount oi the expenses of the distress up to the time of 244 SUMMARY CONVICTIONS. payment or tender, the Constable shall cease to execute the same. Vide, ante p. 214. Payment may he made to the keeper of the prison. 84. In all cases in which any person is im- prisoned for non-payment of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he is imprisoned, the sum in the warrant of Commitment mentioned, toget- her with the amount of the costs, charges and expenses (if any) therein also mentioned, and the keeper shall receive the same, and shall thereupon discharge the person, if he be in his custody for nq other matter. In what case one Justice may act. 85* In all cases of summary procedings before a Justice or Justices of the Peace out of Sessions, upon any information or complaint, one Justice may receive the 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 do all other acts and matters necessary, preliminary to the hearing, even in cases where by the statute in that behalf the information or complaint must be heard and determined by two or more Justices. After hearing, &c. 86. After a case has been heard and determined, one Justice may issue all warrants of distress or commitment thereon. SUMMARY CONVICTIONS. 245 in be led, or Proceedings after judgment. 87. It shall not be necessary that the Justice who acts before or after the hearing, be the Justice or one of the Justices by whom the case is or was heard and determined. In cast two Justices arc required. 88. In all cases where by any Act or Law it is required that an information or complaint shall be heard 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 determination of the case. Amount to be paid to party aggrieved limited. 89. When several persons join in the commission of the same offence and upon conviction thereof, each is adjudged to forfeit a sum equivalent to the value of the property, or to* the amount of the , injury done, no further sum shall be paid to the party aggrieved than the amount forfeited by one of such oflfenders only, and the corresponding sum, forfeited by the other offender, shall be applied in the same manner as other penalties imposed by a Justice or J ustices of the Peace are directed to be applied. Vide ant. p. 193-197, as to joint oflfence. Party aggrieved and certain others m>ay he witnesses. 90. The evidence of the party aggrieved and ako the evidence of any inhabitant of the District, County or place in which any offence has been 246 SUMMARY CONVICTIONS. committed, shall be admitted in proof of the offence notwithstanding that any forfeiture or penalty incured by the offence, may be payable to any public fund of such District, County or place. Certain magistrates to have the powers of two Justices. 91. Any one Judge of Sessions of the Pegfbe, Recorder, Police Magistrate, District Magistrate, or Stipendiary Magistrate, appointed for any District, County, City, Borough, Town, or Place and sitting at a Police Court or other place appointed in that behalf, shall have full power to do alone whatever is authorized by this Act to be done by two or more Justices of the Peace ; and the several forms hereinafter contained may be varied so far as it may be necessary to render them applicable to Police Courts, or to the Court or other place of sitting of such functionary as aforesaid. Power to preserve order, dx. 92. Any Judge of Sessi(»ns of the Peace, Police Magistrate, District Magistrate or Stipendiary Magistrate, sitting 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 w5ys and means as now by law are or may be exercised and used in like cases and for the like purposes by any Courts of Law in Canada, or by the Judges thereof respectively, during the fittings thereof. SUMMARY CONVICTIONS. 247 The question of contempt of Court is one on which a very great difference of opinion exists on the bench and at the bar. The oflficers mentioned in this clause where sitting as therein mentioned have apparently all the powers of any of the Superior Courts of Law in Canada, whilst the Justice of the Peace is left with the powers of preserving order granted to him by the Common Law. The safe rule to follow in all cases of breach of order, during the hearing of a case, is for the Justice to commit in writing the offender for a contempt, but the punishment should follow immediately on the commission of the offence {vide R. vs. Revel, 1 Str. 420; Starkic on Slander by Folkard, 622, 624, 636). Where the defendant was indicted for saying to a justice of the Peace in the execution of his offi^ce, you are a rogue and a liar, it was held that an indictment lay (R. vs. Revel, supra). Power to punish resistance to process, &c. 93. Any Judge of the Sessions of the Peace, Police Magistrate, District Magistrate, or Stipen- diary Magistrate, in all cases where any resistance is offered to the execution of any Summons, "Warrant of Execution or other process issued by him, may enforce the due execution of the same by the means provided by the law for enforcing the execution of the Process of other Courts in like cases. Interpretation of certain words. 94. The expression " Territorial Division " whenever used in this Act, shall mean— District, County, Union of Counties, Township, City, 248 SUMMARY CONVICTIONS. Town, Parish or other judicial division or place to which the context may apply ; and the words '* District or County " shall include any territorial or judicial division or place, in and for which there is such Judge, Justice, Justice's Court, officer or prison, as is mentioned in the context and to which^the context may apply. The same. 96. The words "Common Gaol" or *' Prison,' whenever they occur in this Act, shall be held to mean any place other a Penitentiary where parties charged,with offences against the law are usually kept and detained in custody. Forms. 96. The several forms in the Schedule to this Act contained, varied to suit the case, or forms to the like effect, shall be deemed good, valid and sufficient in law. ■Commencement of Act. 97. This Act shall commence and take effect on the first day of January, in the year of our Lord, one thousand eight hundred and seventy. SCHEDULE. (A) See 8. 1. (I) SUMMONS TO THE DEFENDANT UPON AN INFORMATION OR COMPLAINT. Canada, Province of , Di§trict (or County, United Counties, or as the case may be,) of To A. B., of (laborer). Whereas information hatli this day been laid (or complaint liatii this day been mmie) before the undersifjned, (one) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, City, Town, Ac, as the ease may be] of , for that you (here state shortly the matter of the information or complaint): These are therefore to command you, in Her Majesty's name, to hr and appear on , at o'clock in the forenoon, at , before me, or such Justice or Jtistices of the Peace for the said District (or County, United Counties, or as the case may ie,) 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 in the year of our Lord , at County, or as the case may be) aforesaid. day of , , in the District [or J. s. [L. 8.] (2) DEPOSITION OF CONSTABLE OR OTHER PERSON OF SERVICE OF SUMMONS (Okes Mag. For. No. 9, p. 11.) The deposition of J. N,, constable of the Parish of C, in the said (County), taken upon oath before me the undersigned, one of Htr Majesty's Justices of the Peace for the said (County) of C, at N., in the same (County), this day of 187 . who saith, that he served A. B., mentioned in tlu! annexed (or 250 SUMMARY CONVICTIONS. — SCHEDULES. within) smnmons, with a duplicate thereof, on the dny (»f IttHt personally {or "by having the Rame « with N. 0.. at the wiid A. 138 usual or last place of abode at N., in the county of S." J. N. Before me, J. S. (B) See 6. C. (3) WARRANT WHEN TUE SUMMONS IS DISOBEYED. Canada, Province of , District {or County, United Counties, or as the case may be,) of To all or any of the ConHtables or other Peace Officers in the District [or County, United Counties, or as the case ma\j 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, (&c., as in the Summons) : And whereas (I) the said Justice of the Peace then issued (my) Summons unto the said A. B., commanding him, in Her Majesty's name, to be and appear on , at o'clock in the (fore) noon, at , before (me) or such Justice or Justices of the Peace as might then be there, to answer unto the said information (or complaint), and to be further dealt witli according to law : And whereas the said A. B. hath neglected to be and appear at the time and place so appointed in and by the said Summons, although it hath now been proved to me upon oath that the said Summons hath been duly served upon the said A. B. : These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A. B., and to bring him before (me) or some one or more of Iler Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be,) to answer to the said information {or complaint) ; an'd to the of {instant,) At o'clock in th-- (/ore) ni,r»i), at , and it is uecessary that the said A. B. shuuld in iiy meantime be kept in safe cusUxiy : Tht-se are ther»'- fore to command you, or any one of tlie sjxid Constables or Peu'-f OfUcers, in Her Majesty's name, forthwith to convey the said A. 15. to the Comnuai (iaol (or Lmk-up House,) at , and tiiere deliver him into the c)»fit«Kly of the Keeper thereof. t(»<;ether with this J'rerept ; And 1 hereby require you, the said Keeper, to receive tlu; sjiid A. 15. into your custody in the wild Common (Jaol {or Lock-up He .se) and there K;ifely keep him until the day of , (iniit(int) when you an; her(;by re(juirt!d to convey and have him, the said A. 15., at the time and place to which the sjiid hearing is so adjourned as aforesaid, before such Justices of the I'eac'e for the said District {or County, Cniti-d Coun- ties, as the case may bo) as may then be there, t<» answer further tu the siii(i information (<)/• c(»iuplaint(, and to bo further dealt with acc(»rdii.;ir to law. (liven under my hand and seal, this in the year of our Lord , at (or County, &c . us the casr may be) aforesjiid. day of , in the Distric t J. S. [l. S.] (E) See 8. 12, 22, 34, 46. (6) RECOGNIZANCE KOR TUE APPEARANCE OF THE DE FENDANT WHEN THE CASE IS ADJOURNED, OR NOT AT ONCE PROCEEDED WITH. Canada, Province of , District (^or County, United Counties, or as the case may be), Re it remem>)ered, That on , A. B. of {laborer,) and L. M. of , (i/rocar,) and (). P. of (i/eoma'i,) personally came and appeared before the undersi^^ned, [onc} of Ifer Majesty's .lusiiees of the Peace in and for the said District \or County, United Counties, or as the cann may be) oi and severally ai'knowleen tin- several sums following, that is t«» say ; the SUMMARY CONVICTIONS — SCHEDULES. 253 / said A. B. tlie sum of and the said L. M. and O. ?. the pum of , eath, of good and lawful ourrent money of Canada, to be made and h'vied of their several goods and (battels, lanpear personally on at oclock / in the (fore) noon at , before me or such .Jnstic«s of the I' E'l'uce for the District (or County, United Counties, or as the rase fiat/ he) of as shall then be there, to answtr further to a c(!rtain information (or compiaint) of C I), the further hearing I <»f wliich was adjourned to tlu' said time and pliwe, and imless .1 you appear accordingly, the recognizance entered into by you, A. B., and by L. M. and O. P. as vour sureties, will f(»rthvvith be levied on y(tu and them. ' I)ated tliifi (lay of , one thousand eight hundred and ., J. S. [L. S.] «,) of or (7 (F) ^SVess. 13, 23, 35, 49. 61, CERTIFIfATE OF NON-APrEARANCE TO RE ENDORSED ON THE DEFENDANTS RECOGNIZANCE. I hereby certify, that the said A. TV hath not appeared at the time and place in the sai 1 condition mt titioned, but (hert iri hath made default, by reason whereof the within written recognizanc* is forfeited. J. S. [L. S.]. 254 SUMMARY CONVICTIONS — SCHEDULES. (Gil Sees.lQ.) {8) SUMMONS TO A WITNESS. Canada, Provinct' of , District (or County, United Countit-B, or at the case viay be,) of To E. F. of , in the said District (or County, United Counties, or as the case may be) of Whereas information was laid (or complaint was mafhalf of the Prosecutor (or Complainant or Defendant, in this behalf; These are therefore to refjuire you to be and a])pear (.>n , at o'clock in the (/ore) noon, at before me or such Justice or .Justices of th« Peace for the said District (or County, United Counties, or as the case may be) as may then'be there, to ttstify what you shall know concerning' tln' matter of the s;iid information [or complaint). Given undtr my hand and seal, this day of in the year of our Lord , at in the District (or County, or as (he case may be) aforesaid. J. S. [l. s.] (9) DEPOSITION TUAT A PERSON IS A MATERIAL WITNESS. (Not in Act. Okos Maji. For. No. 19, p. 14.) The deposition of J. N., of the parish oi C, in tin; said County (farmer), taken on oath before me the undersii^ned, one of Her Majesty's Justices of the Peace, in and for th<' said County of C, at N., in th' .said Tounty, this day of 187 , who Siiith that E. F., of the parish of C. aforesaid (grocer), is likely to trive mat^'riai evidence on behalf of the prosecution, in this 1»> haP touchiriLT the mnttrv »t the ann<>xed \or '' within") information (or comphiint' ; :.ud tluit this de[)on;• tf' a warrant be yranled in the first inatauce, without being conip H.-d so to do|. J. N. Before me, .1. vS. SUMMARY CONVICTIONS. — SCHEDLT.ES. 255 It r iu lvt'8 of IftVif (10) DEPOSITION OF CONSTABLE OR OTHER PERSON OF SERVICE OF SfltMONS (NOT IN ACT). Oke's For. p. 15 No. 21. ( Procerd as in form, Xo. 2, ante. p. 249. addinfj at thf conclusion ; I' and at the saiUvi timt' t<'nden-d {or paid) to the Kaif thi- said information (or complaint:) And when'as j)roof hath this day been mad'- before me, upon oath, of such Summons havini; been duly si-rveii upon the said K. F. ; And whereas the said E. F. hath n< fleeted to appear at the time and place appointed by thi- said Summons, and no just cx( use has bei-n ofl'T.-fl for sui h n<'gb'ct ; Tliesi; are therefore to command you Ut take th'- said E. F.. and to bring atul have him on , at o'clock in thf nfti(cris in the said District (or County, Tnitcd Counties, or as the case mat/ be) of ana to the Kfcper of the Common (Jaoi of tlie said district (or County. United Comities, or (M the case may be) at Whereas inlormation was laid (or complaint was made) before (me) {out) of Her Majesty's Justices of tlie Peace, in and for tile said District (or County, United Counties, ur aa the case may he) of for that (^c, as in the Summons^) and one E. F., !iow appearing ])efore me such Justice as aforesaid, on , at , and beiiig retpiired i»y me to make oath (wr atitirmation) an a witness in that behalf, hath now refused so to do, (or being now here duly sworn as a witness in the matter of the said information c- complaint) doth refuse to answer a certain (jues- tion concerning th«; premises which is now here i)Ut to him, and more particularly the following (juestion (here insert the exact irorih of the question), withotit offering any jtist excuse for such ids refusal : These are therefore to command you, or any one of the said Confital)les or Peace otlicers to take the said E. F., and him saf(dy to convey to the Common (raol at aforesaid, and thor« «leliver him to the said keeper thereof, totrether with this precept; and I do hereby command you the ►rc (one) of Her Majesty's Justices of the Peae^ in and for tlie District [or County, United Counties, or as the case may be) of , for that [^'c, as in the summons or warrant) ; And whereas the said A. B. hath been apprelieuded under and by virtue of a warrant, upon such information lor com- plaint) and is now brought before me as such Justice as aforesaid : These arc therefore to command you, or any one of the said Con- stables, or Peace officers, in Her Majesty's name, forthwitli to convey the said A. B. to the Common Gaol {or Lock-up House) at , and there to deliver him to the said Keeper thereof, together with tliis Precept ; And I do hereby command you the said Keeper to receive the said A. B. into your custody in tiie said Common Gaol (or Lock-up House,) and there safely keep him until next, the day of (instant), when you are hereby commanded to convey and have him at at o'clock in the noon of the same day befor« mo, or such Justice or Justices of the Peace of 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 accordin<' to law. Given under my hand and seal, this in the year of our Lord, . at County, as the case may be) aforesaid. day of , . in the district (or J. s. (L. S.) m^ SUMMARY CONVICTIONS. — SCHEDULES. 239 (15) MINUTES OF PROCEEDINGS AT THE IIEARIN(> WITH ADJUDICATION (Not in Act. Okos Maix. For. No. 13, p. 18.) C. D. a;;ainst A. B. 4th day of 187 , at N Befon- .J. T. B., clerk, nnd .J. D. Esq.. .J. I'.. Th'' Di'tViiflant appi-ari'il on a (warrant) ;rraiit«'(J liy V. D. M., Esiiuire, J. 1'., (.haririiitr liirn with assaulting and bi.'ating at L., on the in.stant. one C. D. Defendant, on hcini,' asked what hr lias to say, jdeads ijiiilty or not guilty as the case may he or '■ complainant being sworn, say.-*, or E. F., of , laborer, being sworn, say«, or "complainant does not appear, and defendant attends with his witnesses." Adjudications.] I. On dismissal. — Dismissed with costs, viz : Fees for summonses to two wiHiesses, 4s. ; two witnesses' attendanc*', 5s. — 9s. to be paid (J'orthwit/i) or levied by distress, or in default imprisonment for fourteen days, unless costs ot distress and conveying to pri.son be paid. 2. Where imprisonment only. Convicted: To be imprisoned M'ith hard laVK)ur or not as the case mui/ be. for two calendar months. Costs, 14s. Gd., .to be paid forthwith, levied by distress, and in default imprisonment for fourteen days additional, and to pay costs of commitment and conveyance to prison, 18s. Gd. 3. Where a penalty. Convicted: To pay penalty, 5s., damage (or " value") Is. and costs, 148. (Clerk's fees, 10s. fjd.. Constable, 3s. 6d.), forthwith (or "on or before the IJth instant,") ace of , uidess the said sums and the costs and charges of conveying the said A. B. to the said Cumnjon CJaol, shall he sooner paid. Given under my hand and seal, the day and year first ahove mentioned, at in the District (or County, United Couutica, or as the case may be.) aforesaid. J. S. [L.S.] V > ' 2C2 SUMMARY CONVICTIONS. — SCHEDULES. (I 3) See 81?. 42, 50. (18) CONVICTION WHEN THE PUNISHMENT IS BY IMPRISON- MENT. &C. Cftuada, Provinci' of , DiKtrict (or County, United Count iin, or 09 the cute mat/ le,j of Be it rcmomlu'rod, That on the day of , in the year of our Lord , in the said District (or County, United Counties, or as the ea»e may be., A. B., is convicted before the undersif,'ned [orie) of Her Majesty'r* Justices of tlie Peace in and for the said District (o/- County, United Counties, or as the rase may be), f(»r that lie tlie said A. B., uJT., stattny the offence and the time and place when and where it was committed) ; and I adjud^'ir the eaid A. h., for liis said offence to V»e imprisoned in the Com- mon Ciaol of the said District (or County, United Countien, or as the case may be,] at in the Coimty o*" land there to be kept at luird labour i for the space of ; and I also adjudge the said A. B., to j^ay to the said C. D., the sum of for his costs in this behalf, ami if the said sum for copts be not paid forthwith, (or on or l^cfore next,] then • 1 order that the said stim be levied by distress any me accordingly hereby convicted of his said otfence upon my own view as aforesaid, according to the form of the Statute aforewud in that case made and provided ; and I mljudge the said A. B. for liis said otfence, Ac, iKfJuiltcalwH as in form So. 18. (•20l ADJUDICATION FOR A JOINT OFFENCE WHERE THE PENALTY IS SEVERED AMONG THE DEFENDANTS. (Not in Act. Okes' Mag. For. No. 44, p. 25.) And I adjudge the Paid A. B., E. F., and G. H , for their said oftriue to forfeit and pay the sum of , to be paid and api>lied according to law, and also to pay to the said (J. D. the sum of for nis costs in this l>«half, in the follow- ing proportions, that is to say, the said A.B. for his said otfence the sum of , and the sum of for costs ; and the said E. F., for liis said otfence the sum of , and the sum of for costs ; an«l the said (". II. for hi8 said ottViKe the sum of , and the sum of for costs ; and if the said several apportioned sums he not paid forthwith [or "on or before next,") by the said A. B. E. F. and (J. H. respectively, I adjudge < ach of them, the said A. B., E. F. and G. H., who shall make default in that behalf, sevendly to be imprisoned in the at in the saialmondi^re vs. Frosto, 25 L. J. (N.S)M.C. 155. !l 268 SUMMARY CONVICTIONS. — SCHEDULES. Given under my hand and seal, this day of in the year of our Lord , at in the District (or County, or as the case may be,) aforesaid. Or, when the issuing of a distress warrant would be ruinous to the Defendant or his family or it appears he has no goods whereon to levy a distress, then, instead of the words between the asterisks * * say, inasmucli as it hatii now been made to appear to me that the issuing of a warrant of distress in this behalf would be ruinous to the said A, B. and his family," [or, "that the said A. B. hath no goods or chattels whereon to levy the said sums by distress." ~ J. S. [l. S.] I m (K 2 ) See ss. 42, 51. (27) ORDER FOR PAYMENT OF MONEY, AND IN DEFAULT OF PAYMENT, IMPRISONMENT. Canada, Province of , District (or County, United Counties, or as the case may be), of Be it remembered. That on complaint was made before the undersigned, (one) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or (IS the case may be,) of , for -that [stating the facts entitling the complainant to the order, with the time and place tchen and where they occurred, ) and now on this day, to wit, on J at , the parties aforesaid appear before me the said Justice, (or the said C. D. appears before me the said Justice, but the said A. B. although duly called doth not appear by himself, his Counsel or Attorney, and it is now satisfactorily proved to me upon oath that the said A. B. has been duly served with the sum- mons in this behalf, which required him to be and appear here this day before me, or such Justice or Justices of the Peace for the said District (or County, United Counties, or as the case may be,) as should now be here, to answer to the said complaint, and to be further dealt with according to law,) and now having heard the matter of the said complaint. I do adjudge (t) the said A. B. (to pay to the said C. D. the sum of forthwith, (or on or (t) nde ante No. 26. ^t SUMMARY CONVICTIONS. — SCHEDULES. 269 before next, or as the Act or Law may require,) and also to pay to the said C, D. the sum of for his costs in this behalf ; and if the said several sums be not paid forthwith, {or on or before next), then I adjudge the said A. B. to be imprisoned in the Common Gaol of the said District (or County, United Counties, or us the case may be,) at , in the said District (or County of (th re to be kept at hard labour if the Act or Law authorize this) for the space of , unless the said several sums (and costs an/ be, aforesaid. ' J.S. [l. S.] (L) See s. 43. (20) ORDER OF DISMISSAL OF AN INFORMATION OR COMPLAINT. Canada, "j Province of , I District (or County, ' United Counties, or as the case may be,) of Be it remembered, that on information was laid (or complaint was made) before the undersigned, {one) of Her Majes- ty's Justices of the Peace in and for the said District [or County, United Counties, or as the case may be) of , for thai /ie- said [the lard J the land mt- mto rour (42) JUDGMEM OF AFFIRMANCE OP THE SESSIONS ON AN APPEAL FROM A CONVICTION. (Not ill Statute, Vide Paley on Con. 5 Ed. p. 546.) Canada, Province of , District (or County, United Counties, or as the case may be,) ot At a General Quarter Sessions of the Peace of our Sovereifjn Lady the Queen heid by Proclamation at in and for the District (or County, &e., as the case may be) of on the day of in the year of Our Lord 187 before Esquire, Judge of the Sessions of the Peace in and for the City of (or as the case may be) ; and afterwards by atljournnient (if adjourned) at aforesaid on the day of in the year aforesaid. At the same Court so held at aforesaid, on the day and year, first (or last as the case may be) aforesaid, J. W. of in the District of (farmer,) entered his appeal to and against fe conviction under the hand and seal of C. D. Esquire, one of Her Majesty's Justices of the Peace for the District aforesaid, dated and made the day of 187 (here state the offence as in the conviction) and by which said conviction he the said C. D. did adjudge that the said J. W. should for the said offence forfeit (here state the adjudication as in the conviction). Now therefore at the said Court so holden as aforesaid, by adjournment at as aforesaid, upon hearing of the said appeal, it is now here ordered and adjudged by the said Court that the said conviction be and the same is hereby ♦in all things affirmed ; and it also now here by the same Court further ordered and adjudged that the said J. W. be dealt with and punished according to the said conviction and also that the said J. W. do and shall pay to the Clerk of the Peace in and for the said District of within days of the date of the present judgment, to be by him paid to the said Informant the Respon- dent in the said Appeal, the sum of the amount of costs sustained by the said Respondent and by him incurred by reason of the said Appeal, and now by the said Court here adjudged to be paid to him by the said J. W. according to the Statute in such case made and provided. [the or 284 SUMMARY CONVICTIONS. — SCHEDULES. (43) JUDGMENT OF SESSIONS ON APPEAL QUASHING CONVIC- TION. Aa in form preceding No. 42 to * then quashed and set aside with costs (where deposit has been made) and that the deposit made by the said Appellant be repaid to him by J. S. Esquire, with whom the same was made and further that the said D. E. th'i Respondent in the said Appeal, shall pay to the Clerk of the Peace in and for the said District of within days of the date of the present judgment to be by him paid to the said Appellant the sum of the amount of costs sustained by the caid Appellant and by him incurred by reason of the said Appeal and now by the said Court here adjudged to be paid to him by the said D. E., according to the Statute in such case made and provided. (R) See s. 75. (44) CERTIFICATE OF CLERK OF THE PEACE THAT THE COSTS OF AN APPEAL ARE NOT PAID. Office of the Clerk of the Peace for the District {or County, United Counties, or aa the case may be) of TITLES OF THE APPEAL. I hereby certify, that at a Court of General or Quarter Sessions of the Peace (or other Court discharging the functions of the Court of General or Quarter Sessions, as the case may be) holden at , in and for the said District (or County, United Counties, or aa the case may be} on last past, an appeal by A. B. against a conviction {or order) of J. S. Esquire, one of Her Majesty's Justices of the Peace in and for the said District {or County, Uni- ted Counties, or as the case may be) came on to be tried, and wat. there heard and determined, and the said Court of General or Quarter Sessions (or other Court, as the case may be), thereupon ordered that the said conviction (or order) should be confirmed {or quashed) and that the said (Appellant) should pay to the said (Respondent) the sum of for his costs incurred by him in the said appeal, and which sum was thereby ordered to be paid to the Clerk of the Peace for the said District (or County, United Counties, or as the case may be) on or before the day of instant, to be by him handed over to the said {Respondent), and I further certify that the said sum for costs has not, nor has any part thereof, been paid in obedience to the said order. Dated this day of , one thousand eight hundred and . G. H. • Clerk of the Peace. SUMMARY CONVICTIONS. — SCHEDULES. (S 1) See 8. 75.) 285 (45) WARRANT OF DISTRESS FOR COSTS OF AN APPEAL AGAINST A CONVICTION OR ORDER. Canada, Province of , District [or County, United Counties, or as the case may be,) of To all or any of the Constables or other Peace Officers in the said District (or County, United Counties, or as the case may be) of Whereas (^c, as in the warrants oj distress, N I, 2, ante, and to the end of the Statement af the Conviction or Order, and then thus): And whereas the said A. B. appealed to the Court of General Quarter Sessions of the Peace {or other Court discharging the functions of the Court of General or Quarter Sessions, as the case may be) for the said District (or County, United Counties, or as the case may be) against the said Conviction or Order, in which appeal the said A. B, was Appellant, and the said C. D., {or J. S. Esquire, the Justice of the Peace who made the said Conviction or Order) was the Respondent, and which said appeal came on to be tried and was heard and determined at the last General Quarter Sessions of the Peace {or other Court, as the case may be) for the said District {or County, United Counties, or as the case may be) holden at , on , and the said Court thereupon ordered that the said Conviction {or Order) should be confirmed {or quashed) and that the said {Appellant) should pay to the said (Respondent) the sum of for his costs incurred by him in the said appeal, which said sum was to be paid to the Clerk of the Peace tor the said District (or County, United Counties, or as the case may be) on or before the day of , one thousand eight hundred and , to be by him handed over to the said C. D. ; and whereas the Clerk of the Peace of the said District (or County. United Counties, or as the case may be) hath, on the day of instant, duly certified, that the said sum for costs had not been paid ; • These are therefore to command you, in Her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B., and if within the space of days next after the making oT such distress, the said last men- tioned sum, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and do pay the money arising from stich sale to the Clerk of the Peace for the 286 SUMMARY CONVICTIONS. — SCHEDULES. said District (or County, United Counties, or aa the eate may be) of , tiiat he may pay and apply thie 8amc as by law directed ; and if no such distress can be found, then that you certify the same unto mc or any other Justice of the Peace for the same District (or County, United Counties, or as the case viay be) to the end that such proceedings may be had therein, as to law doth appertain. Given under my iiand and seal, this day of , in the year of our Lord , at , in the District (or County or at the ante may he) aforesaid. 0. K. [l. 8.] (S 2) See s. 75. (4G) WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN THE LAST CASE. \ Canada, Province of , District [or County, United Counties, or at the case may be,) ol To all or any of the Constables, or other Peace Oflficers, in the said District (or County, United Counties, or as the case may be) of and to the Keeper of the Common Gaol of the said Dis- trict {or County, United Counties, oras the case may be) of , at in the said County of Whereas (tjj'c, as in the last form, to the asterisk,* and then thus): And whereas, afterwards, on the day of , in the year aforesaid, I, the undersigned, issued a warrant to all or any of the Constables and other Peace Officers in the said District (or County, United Counties, or as the case may be) of , commanding them or any of them, to levy the said sum of , for costs, by distress and sale of the goods and chattels of the said A. B. ; And whereas it appears to me, as well by the return to the said Warrant of Distress to the Constable (or Peace Officer), who was charged with the execution of the same, as otherwise, that the said Constable hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the said sum above mentioned could be found ; These are therefore to command you, the said Constables or Peace Officers, or any one of you, to take the said A. B.J and him safely to convey to the Common Gaol of the said SUMMARY CONVICTIONS. — SCHEDULES. 287 District (or County, United Counties of at the ea$e may be,) at oforesaid, and tliere deliver him to the said Iveeper thereof, together with this Precept ; and I do hereby command you, the eaid Keeper of the said Common Gaol, to re- ceive the said A. B. into your custotiy in the said Common Gaol, there to imprison him (aud keep him at hard labour) for tlie space of ,) unless the same sum and all costs and charges of the said distress (and for the commitment and conveying of tlie fciaid A. B. to the said Common Gaol, amounting to the further Rtmi of ,) shall be sooner paid unto you, the said Keeper, and for so doing, this shall be your sufficient Warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the District (County, United Counties, or as the case may be) aforesaid. J. N. [l. s.] (47) GENERAL FORM OF INFORMATION OR OF COMPLAINT ON OATH. Canada, Province of , District (or County, United Counties, or at the case may be,) of The information {or complaint) of C. D., of the township of in the said District (or County, United Counties, or at the case may be,) of {laborer). [If preferred by an Attorney or Agent, say :) "D. E.) his duly authorized Agent (or Attorney), in this behalf, taken upon oath, before me, the undersigned, one of Her Majesty's Justices of the Peace, in and for the said District [or County, United Counties, or at the case may be) of , at N., in the said District, County, or as the case may be) of this day of , in the year of our Lord, one thousand eight hundred and , who saith* that he hath just cause to suspect and believe, and doth suspect and believe that) A. B., of the [totonship) of , in the said District [or County, as the case may be) of ,^^^ , within the space of , the time xcithin which the information (or complaint) must be laid,) last past, to wit, on the day ot instant, at the (toivnshij)) of in the District [County, or at the case may be) aforesaid, did (here set out the offence, ^ . 288 SUMMARY CONVICTIONS. — SCHEDULES. ^e.,) contrary to the form of Statute in such case made and provi- ded. C. D. (or D. E.) Taken and sworn before me, the day and year and at the place al)ove mentioned, J. S. (48) FORM OP ORDER OF DISMISSAL OP AN INFORMATION OR COMPLAINT. Canada, Province of , District (or County, United Counties, or aa the cate may be,) of Be it remembered, that on information was hiid (or complaint was made) before the undersigned, (o«c) of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or aa the eaae may be) of , for that (^c, aa in the Summona of the defendant) and now at this day, to wit, on , at , (tf any adjournment inaert here : «' To which day the hearing of this case hath been duly adjourned, of which the said C. D, had due notice," both the said parties appear before me in order that I should hear and determine the said information, (or complaint) (or the said A. B. appeareth before me, but the said C. D., although duly called, doth not appear) ; whereupon the matter of the said information (or complaint) being by me duly considered, (it manifestly appeals to me that the said information (or complaint) is not proved, and (If the Informant (or Complainant) do not appear these worda may be omitted) I do therefore dismiss the same, (and do adjudge that the said C. D. do pay to the said A. B. the sum of for his costs incurred by him in defence in his behalf ; and if the said sum for costs be not paid forthwith, (or on or before ).I order that the same be levied by distress and sale of tbe goods and chattels of the said C. D. and in default of sufficient distress in that behalf, I adjudge the said C. D. to be imprisoned in the Common Gaol of the said District (or County, United Counties, a* the caae may be) of at in the said (County) of (and there kept at hard labour for the space , unless the said sum for costs, ana all costs and charges of the said distress I'and of the commitment and conveying of the said C. D. to the said Common Gaol) shall be sooner paid. Given under my hand and seal, this day of in the year of our Lord, at in the District (or County, or aa the caae may be) aforesaid. J. S. [L. 8.] 8UMMABT CONVICTIONS. — SOHBDULES. 289 (48) FORM OP CERTIFIJATE OP DISMISSAL. I hereby certify, that an information {or complaint) protorrcd by D. D. againMt A. B. for that (r to be dis- as herein 'fore whom or they see examination jtrate, in 111^3 Justices are „ for trial at ,specting the Sessions, in 'eace in a:>7 for further examination or trial before any such Magistrate in any other Province. Be/ore lohom to he tried. I 21. Any person so remanded for further exami- nation before a competent Magistrate in any City, may be examined and dealt with by any other competent Magistrate in the same City. Parti/ not appearing according to his recognizance. 22. If any person suffered to go at large upon entering into such recognizance as the Justice or Justices are authorized under any such Act as last mentioned to take, on the remand of a party accused, conditioned for his appearance before a competent Magistrate under the preceding sec- tions of this Act, does not afterwards appear pur- suant to such recognizance, then the Magistrate before whom be ought to have appeared shall certify (under his hand on the back of the recog- nizance,( to the Clerk of the Peace of the District, County or place (as the case may be) the fact of such non-appearance, and such recognizance shall be proceeded upon in like manner as other recog- nizances, and such certificate shall be deemed sufiicient prima facie evidence of such non-appear- ance. Conviction to he transmitted to Q. S., d:c. 23. The Magistrate adjudicating under this Act shall transmit the conviction, or a duplicate of a certificate of dismissal, with the written charge, the depositions of witnesses for the prosecution ( ', I 308 SUMMARY ADMINISTRATION. ! I ■ and for the defence, and the statement of the accused, to the next Court of General or Quarter Sessions of the Peace, or to the Court discharging the functions of a Court of Greneral or Quarter Sessions of the Peace, for the District, County or Place, there to be kept by the proper Officer among the Records of the Court. Proof of conviction or dismissal. 24. A copy of such conviction, or of such certi- ficate of dismissal, certified by the proper Officer of the Court, or proved to be a true copy, shall be sufficient evidence to prove a conviction or dis- missal for the offiince mentioned therein, in any legal proceedings whatever. Restitution of property. 26. The Magistrate, by vrhom any person has been convicted under this Act, may order restitu- tion of the property stolen, or taken or obtained by false pretences, in those cases in which the Court before whom the person convicted would have been tried but for this Act, might by law order restitution. The 32 & 33 Vic. c. 29, contains the following provisions on the subject of the restitution of property stolen, em- bezzled, &c. g. 113. " If any person, guilty of any such felony or misde- •'meanor as is mentioned in this Act, in stealing, taking, *' obtaining, extorting, embezzling, appropriating converting or " disposing of, or in knowingly receiving any chattel, money, " valuable security, or other property whatsoever, is indicted " for such oflfence, by or on behalf of the owner of the pro- SUMMARY > JMINI8TRATI0N. '■^-■n.H.ua, 309 "aforesaid the Court before Z '^ ""'' '" "''» """'O" "anysuehfolonyor^itjo ir^/""" '^ '"^^ ^- '• from time to time, writ, of rnJ . . /'''' '^'"'' «» ^''a'-d, :<" to order the re's^ou "": a" "" "'' P™"^^'? '•and the Court may also if it I «. """"^ "'»""'«n "of the pro,«rty taken from 1 ' """''^ '•<='"'««''■' ;'"« fo- theproseeut n Cs^eh fT""""-' "^ ""^ -'' "although the p3r.,on indlj , T^ "' '"'•^demeanor, •'if "'0 jury declare (fs tke.V r^''''' *^-»'; "P0«y belongs to sueh L ^ ^^ '^'" •*"' «"* pr„^ "ho was u„wf„„rtprCr:r-t*'r'"'^^'' ^-^ ^'^^ "misdemeanor; Provided thaHf -f ''^ ™'"' '''=''"'? or "or order made, tha any ««''''""" '^'''"' ""^ "-^^ "Me paid or discharged bv 1 '"""^ ^'' ''«'' ''«»<« "liable to the paymenf 11^ r^" " '"''^ ^^l"-'" "-uent, has been 4<,„, /^ fi „^"''' " T'""'' '-'™- " deavery, by some person o bod " '"""""'' ""y '"''»«^' « " valuable consideration "thonf^ 'P"""'' ''™' » J"^' a-d " reasonable eanse to sulect th" t? "'T " "'*»"' »? "or misdemeanor been stolen tal T" '""' ^' '"^ «^'4 " bezzied, converted or d pi of ' '*,""'"''• ''^'»^'^<'' «- " not award or order th Tesdtu ff T T ""^ ^°"" ^aU "dod also, that nothin! i, thL r- '^ """""'^ • P™"" "to the case of any pro^s „ L IT"" T""""' "''"" ^1? "chant, attorney fad v " "'^ ""^ "-""'"o, banker, mer "with thcpossestnXor„Td„r "'T "^"""' '-'""d' ''-^o^othe::--^--:^e^..s^^ u I i III :|: !!!i 310 SUMMARY ADMINISTRATION. " ding the stealing or unlawfully obtaining any property, and *' it appears to the Court, by the evidence, that the prisoner '' sold such property or part of it to any person who had no *^ knowledge that it was stolen or unlawfully obtained, and *' that money had been taken from the prisoner on his appre- '' hension, the Court may, on the application of such pur- *' chaser and on restitution of the property to its owner, order ^Uhat out of the money so taken from the prisoner, a sum ^' not exceeding the amount of the proceeds of the sale be ''delivered to such purchaser." Magistrate' s Court to he oj)en, 26. Every Court held by a competent Magis- trate for the purposes of this Act, shall be an open public Court, and a written or printed notice of the day and hour for helding such Court, shall be posted or affixed by the Clerk of the Court upon the outside of some conspicuous part of the build- ing or place where the same is held. Certain provisions not to apply to cases under this Act. 27- The provisions of the Act respecti?ig- the duties of Justices of the Peace out of Sessions, in relation to summary convictions and orders, and the provi- sions of the Act respecting the duties of Justices of the Peace out of Sessions in relation to persons charged with indictable offences, shall not be construed as applying to any proceeding under this Act except as mentioned in section nineteen. Effect of conviction. 28. Every conviction by a competent Magistrate under this Act shall have the same effect as a con- viction upon indictment for the same offence SUMMARY ADMINISTRATION. 311 would have had, save that no conviction under this Act shall be attended with forfeiture beyond the penalty (if any) imposed in the case. And of dismissal. 29. Every person who obtains a certificate of dismissal or is convicted under this Act, shall be released from all further or other criminal pro- ceedings for the same cause. No conviction to he quashed /or want of form, &c. 30- No conviction, sentence or proceeding under this Act shall be quashed for want of form ; and no warrant of commitment upon a con^dction shall be held void by reason of any defect therein, if it be therein alleged that the offender has been convicted, and there be a good and valid convic- tion to sustain the same. Act not to affect that for trial of Juvenile Offenders. 31- Nothing in this Act shall affect the provi- sions of the Act respecting the Trial and Punishment of Juvenile Offenders ; and this Act shall not extend to persons punishable under that Act, so far as regards offences for which such persons may be punished thereunder. How fines under this Act shall be applied. 32. Every fine imposed under the authority of this Act shall be paid to the Magistrate, who has imposed the same, or to the Clerk of the Court or Clerk of the l*eace, as the case may be, and shall be by him paid over to the County Treasurer for county purposes if it has been imposed in the ir \i (! n I 1 1 I ii i 312 SUMMARY ADMINISTRATION. Province of Ontario — and if it has been imposed in any new district in the Province of Quebec, constituted by any Act of the Legislature of the lale Province of Canada, passed in or after the year one thousand eight hundred and fifty-seven, then to the Sheriff of such District as Treasurer of the Building and Jury Fund for such District to form part of the said Fund, — and if it has been im- posed in any other District in the said Pro\rince, then to the Prothonotary of such District, to be by him applied under the direction of the Lieutenant Governor in Council, towards the keeping in repair of the Court House in such District, or to be by him added to the moneys and fees collected by him for the erection of a Court House and Gaol in such District, so long as such fees shall be collected to defray the cost of such erection ; And in the Province r.f Nova Scotia to the County Treasurer for County purposes, and in the Pro- vince of New Brunswick to the County Treasurer for County purposes. Interpretation of certain icords. 33. In the interpretation of this Act the word "property" shall be construed to include every- thing included under the same word or the expres- sion " valuable security," as used in the Act res- pecting Larceny and other similar offences ; and in the case of any "valuable security," the value thereof shall be reckoned in the manner pres- cribed in the said Act. UK SUMMARY ADMINISTRATION. 313 Con. Stat, Can,, Cap. 105 repealed. Exception. 34. The Act cited in the first section of this Act chapter one hundred and five of the Consolidated Statutes of Canada is hereby repealed, except as to cases pending under it at the time of the coming into force of this Act and as to all sentences pro- nounced and punishments awarded under it, as regards all which this Act shall be construed as a re-enactment of the said Act, with amendments, and not a new law. Commencement of this Act. 35. This Act shall commence and take effect on the first day of January, in the year of our Lord one thousand eight hundred and seventy. :o- er Ird ry- FORM (A) Sec s. 7. CONVICTION. ■} Province of City or as the case may be of, to wit : Be it remonibered 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 sum- marily,) is convicted before me, for tliat he the said A. B., &c., [stating the offence, and the time and pla>e when and where committed,) and I adjudge tne 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 ahovc mentioned, at aforesaid. J. S. [L. S.] 314 SUMMARY ADMINISTRATION. FORM (B) See s. 7. CERTIFICATE OF DISMISSAL. } Frovince of City or as the case may be of. to wit : I, the undersigned, , of the City or as the case may be, of , certify that on the day of in the year of our Lord , at aforesaid, A. B., being charged before me (and consenting to my deciding ujjon the charge summarily), for thai lie the said A. B., &c., [statitiy the offence charged^ and the time and place when and where alleged to have been committed,) I did, after having summarily adjudicated thereon, dismiss the said charge. Given under my liand and seal, this day of , at aforesaid. J. s. [L. S.] FORM (C) Sec s. 11. CONVICTION UPON A PLEA OF GUILTY. ■} A, B., , of Province of City or as the case may be of, to wit ; Be it remembered that on the day ot in the year of our Lord , at being charged before me the undersigned the said City, (and consenting to my deciding upon the charge summarily, for that he the said A. B., &c., (slatiny t/ie 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 at 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.] i t; CAP. XXXIII. An Act respecting the trial and punishment of Juvenile Offenders. [Assented to 22nd June, 1369.J Preamble. HER Majesty by and with the advice and consent of the Senate and House of Com- mons of Canada, enacts as follows : Interpretation of certain exjjressions. 1. In this Act the expression *' any two or more Justices," shall as respects the Province of Quebec, include any two or more Justices of the Peace, the Sheriff of any District except Montreal and Quebec, the Deputy Sheriff of Graspe, and any Recorder, Judge of the Sessions of the Peace, Police Magistrate, District Magistrate or Stipen- diary Magistrate acting within the limits of their respective jurisdictions ; — and as respects the Pro- vince of Ontario, any Judge of the County Court being a Justice of the Peace, Police Magistrate or Stipendiary Magistrate, or any two Justices of the Peace, acting within their respective jurisdic- tions; — and as respects the Province of Nova Scotia or the Province of New Brunswick, the said expression shall mean and include any func- 316 JUVENILE OFFENDERS. ! I i i ;i tionary or tribunal invested or to be invested by the proper legislative authority with power to do acts usually required to be done by two or more Justices of the Peace ; — aud the expression " the Justices" shall have the same meaning as the expression " two or more Justices of the Peace" as above delined ; and the expression " the Common Gaol or other place of coulinement" shall include any Reformatory Prison provided for the reception of juvenile offenders in the Province in which the conviction referred to takes place, and to which by the law of that Province the offender can be sent. Persons not more than sixteen years of age may he sum- marlly convicted of certain offences before two Justices. 2. Every person charged with having com- mitted or having attempted to commit, or having been an aider, abettor, counsellor or i rocurer ij the commission of any offence which is simple larceny, or punishable as simple larceny, and whose age at the period of the commission or attempted commission of such offence does not, in the opinion of the Justice before whom he is brought or appears as mentioned in section seven, exceed the age of sixteen years, shall upon con- viction thereof, in open Court, upon his own confession or upon proof, before any two or more Justices, be committed to the Common Graol or other place of confinement within the jurisdiction of such Justices, there to be imprisoned with or JUVENILE OFFENDERS. 317 i by o do more "the s the ce" as imon elude sption chthe which an be he sum- CCS. com- aving irer ii simple and lion or ;s not, li he is seven, 111 con- s own |r more raol or Liction dth or without hard labour, for any term not exceeding three months, or, in the discretion of such Justices, shall forfeit aud pay such sum, not exceeding twenty dollars, as the said Justices may adjudge. All persons whose age at the period of the commission or attempted commission of the offence, shall not in the opinion of the Justice before whom he is brought or appears, exceed sixteen years can be tried under this Act for the commission of the following offences : 1. Simple larceny. 2. Attempt to commit simple larceny. 3- Aiding, abetting, counselling or procuring the commis- sion of simple larceny. 4. Committing any oflFence delared to be punishable as simple larceny. {Vide these offences in note A iufra.) 5. Attempting to commit any offence declared to be punish- able as simple larceny. 6. Aiding, abetting, counselling or procuring the commis- sion of any offence declared to r punishable as simple lar- ceny. In the Province of Quebec in the event of any person apparently under the age of sixteen years being convicted before a Judge of the Sessious of the Peace, Recorder, Dis- trict or Police Magistrate of any offonce for which he would be A. Offences re/erred to in No. 4, supra. Besides the offence of Simple Larceny and those numbered above 2, 3, 5, the offences referred to in number 4, appear to be those declared by the 32 & 33 FiC, c. 21, ss. 14, 20, 21j 22 {on third conviction), 20 (on second conviction), 110, 111, to be jmniifhable as Simple Larceny. i 1 I i i I Mi ■ ill il 318 JUVENILE OFFENDERS. liable to imprisonment, he may be sentenced on such convic- tion to be detained in a certified Keformatory School for any term not less than two years nor more than five years, or to such imprisonment in a certified Reformatory School after an imprisonment under this section in a Common Gaol. (Vide 32*& 33 Vic. c.34, s. 2). Defendant to be asked if he consents to be so tried. And if he does not consent. 3. The Justices before whom any person is charged and proceeded against under this Act, before such person 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 affect : " 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 such person, then objects, such person shall be dealt with as if this Act had not been passed ; but nothing in this Act shall prevent the summary conviction of any such person before one or more Justices of the Peace, for any offence for which he is liable to be so convicted under any other Act. For cases wherein a person can be summarily convicted without his consent. Vide 32 & 33 Vic. c. 32, ss. 15 i& 16 ante pp. 304, 305 k 298. JUVENILE OFFENDERS. 319 11 of be Ibnt [ary Lore ich Iher Icted 16 Case dismissed if offence is not proved, (S:c. Form of certificate in such case. 4. If the 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, in the latter case on his finding sureties for his future good behaviour, aud in the former case without sureties, and then make out and deliver to the party charged, a cer- tificate under the hands of such Justices stating the fact of such dismissal. Such certificate shall be in the form or to the effect set forth in the form following : , ) We , one of Her To wit: I Majesty's Justices of the Peace for the , of , (or if a Recorder, Sfc.,) I, a , of the of , as the case may be) do hereby certify, that on the day of , in the year of our Lord, , at , in the 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 state briefly the particu- lars of the charge), and that we the said Justices (or I the said ) thereupon dismissed the said charge. G-iven under our hands (or my hand) this day of ii 320 JUVENILE OFFENDERS. Justices may send case to he tried hy a Jury, if they see fit. 5. If the Justices are of opinion, before the person charged has made his defence, that the charge is from any circumstance a fit subject 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 ofsummarily adjudicating thereupon deal with the case in aU respects as if this Act, had not been passed ; but this shall not prevent his being afterwards tried summarily by his own consent by a Judge of a County Court in the Pro- vince of Ontario, under any Act then in force for that purpose. No further prosecution for the same offence. 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 or other criminal proceedings for the same cause. Compelling party accused to attend. 7. In case any person whose age is alleged not to exceed sixteen years be charged with an y otteuce mentioned in section two, on the oath of a credible witness before any Justice of the Peace, such Jus- tice 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 timo and place to be named in such summons or warrant. JUVENILE OFFENDERS. 321 Power to remand or take hail. 8. Any Justice or Justices of the Peace, if he or they think fit, may remand for further exami- nation or for trial, or sutfer to go at large upon his finding sufficient sureties, any such person charged before him or them with any such offence as aforesaid. Condition of recognizance. 9. Every such surety shall be bound by racog- nizance to be conditioned for the appearance of such person before the same or some other Jus- tice or Justices of the Peace for further exami- nation, or for trial before two or more Justices of the Peace as aforesaid or for trial by indictment at the proper Court of Criminal Jurisdiction, as the case may be. Enlarging or discharging recognizance. 10. Every such recognizance may be enlarged from time to time by any such Justice or Justices or Court to such further time as he or they appoint ; and every such recognizance not so enlarged shall be discharged without fee or reward when the the party has api^eared according to the condition thereof Summoning witriesses. 11. Any Justice of the Peace may, 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. w 'I'll i \ 1 322 JUVENILE OFFENDERS. If i ji 'f i i \ m Binding witnesses over. 12. Any such Justice may require and bind by recognizance all persons whom he considers neces- sary to be examined touching the matter of such charge, to attend at the time and place appointed by him, and then and there to give evidence upon the hearing of such charge. Compelling attendance in case of rejusal. 13. In case any person so summoned or required or bound as aforesaid, neglects or refuses to attend in pursuance of such summons or recognizance, then upon proof being first given of such person having been duly summoned as hereinal'ter men- tioned or bound by recognizance as aforesaid, either of the Justices before w^hom any such person ought to have attended, may issue a warrant to compel his appearance as a witness. Summons to witness how served. 14. 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 evi- dence as aforesaid, shall be deemed to have been duly summoned. Foi'ni of conviction. 16. The Justices before whom any person is summarily convicted of any such offence as here- inbefore mentioned, may cause the conviction to JUVENILE OFFENDERS. 323 is be drawn up in the following form, or in any other form of words to the same eiOfcct, (varying the wording to suit the case,) that is to say : , I Be it remembered that on the To wit : i day of , in the year of our Lord one thousand eight hundred and , at , in the District of , (County or United Counties. &c., or as the case may be) A. O. is convicted before us J. P. and J. R., two of Her Majesty's Justices of the Peace lor the said District (or City, &c.,) or me, S. J., Recorder^ &c., , of the of or as the case may he) for that he the said A. O. did {specify the offence and the time and place ivhen and where the same luas committed^ as the case may be, but without settinfn; forth the evidence), and we the said J. P. and J. R. (or I the said S. J.) adjudge the said A. 0. for his said offence to be imprisoned in the (or to be imprisoned in the and there kept at hard labour, for the space of , (or we (or I) adjudge the said A. O. for his said offence to forfeit and pay , (here state the penalty actually imposed,) and in default of immediate payment of the said sum, to be imprisoned in the (or to be imprisoned in the , and kept to hard labour) for the space of , unless the said sum shall be sooner paid. Griven under our hands and seals (or my hand and seal) the day and year first above mentioned 324 JUVENILE OFFENDERS. i ti' ii ' '«i>l 11 ! And the conviction shall be good and effectual to all intents and parposes. Vide as to Statement of Oflfence under 32 and 33 Vic. c. 31 ante p.p 184-200. Conviction not void for want of form. No certiorari. 16. No such conviction shall be quashed for want of form, or be removed by certiorari or other- wise, into any of Her Majesty's Superior Courts of Record , and no warrant of commitment shall be held void by reason of any defect therein, pro- yided it be therein alleged that the party has been convicted, and there is a good and valid conviction to sustain the same. Vide ante pp. 234, 235. Convictions to he sent to the Clerks of the Peace, &c. 17. The Justices before whom any person is convicted under the provisions of this Act, shall forthwith transmit the conviction and recognizan- ces to the Clerk of the Peace for the district, city, county or union of counties wherein the offence was committed, there to be kept by the proper officer among the records of the Court of Greneral or Quarter Sessions of the Peace, or of any other Court discharging the functions of a Court of General or Quarter Sessions of the Peace. Returns to Secretary of State. 18. Each such Clerk of the Peace shall transmit to the Secretary of State of Canada, a quarterly Teturn of the names, offences and punishments JUVENILE OFFENDERS. 325 it mentioned in the convictions, with such other particulars as may from time to time be required. No forfeiture, hut restitution nufij he ordered. 19. No conviction under the authority of this Act shall be attended with any forfeiture, except such penalty as may be imposed by the sentence, but whenever any person is adjudged guilty under the provisions of thitj Act, the presiding Justice may order restitution of the property in respect of which the offence was committed, to the owner thereof or his representatives. Vide as to Ilcstitution ante. Or the pot/ men t of value in money. 20. If such property be not then forthcoming, the Justices, whether they award punishment or dismiss the complaint, may inquire into and ascertain the value thereof in money, and if they think proper, order payment of such sum of money to the true owner, by the person convicted, either at one time or by instalments, at such periods as the Court deems reasonal)le. Tbi.s section and the nineteenth are contradictory in tlieir provisions, under the nineteenth it is only when the accused is adjudged guiUy that restitution can be ordered, but under this clause if the complaint is dismissed it is impossible that the accused be considered convicted, and yet when the com- plaint is dismissed the Justices can order payment of a fcum representing the property by the person convicted. Recovery of such value, 21. The party so ordered to pay may be sued 326 JUVENILE OFFENDERS. for the same as a debt in any Court in which debts of the like amount may be by law recovered, with costs of suit, according to the practice of such Court. Enforcing payment of penalties. 22. Whenever^the Justices adjudge any offender to forfeit and pay a pecuniary penalty under the authority of this Act, and such penalty is not forthwith paid, they may if they deem it expedient, appoint some future day for the payment thereof, and order the offender to be detained in safe cus- tody until the day so to be appointed, unless such offender gives security to the satisfaction of the Justices for his appearance on such day, and the Justices may take such security by way of reco- gnizance or otherwise at their discretion. Committal for non-payment. 23. If at any 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 Groal or other place of confinement within their juris- diction, there to remain for any time not exceed- ing three months, reckoned from the day of such adjudication ; such imprisonment to cease on pay- ment of the said penalty. Costs of prosecution may he awarded. 24. The Justices before whom any person is prosecuted or tried for any offence cognizable under this Act, may, in their discretion, at the JUVENILE OFFENDERS. 327 In IS lable the request of the prosecutor or of any other person who appears on recognizance or summons to pro- secute or give evidence against such person, order payment to the prosecutor and w^itnesses for the prosecution, of such sums of money as to them seem reasonable and sufficient, to reimburse such prosecutor 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 may order payment to the Constables and other Peace Officers for the apprehension and detention of any person so charged. Even ivithout conviction. 25. And although no conviction takes place, the said Justices may order all or any of the payments aforesaid, when they are of opinion that the par- ties or any of them have acted bond fide. The payment of the monies so ordered,^should be made by the OflBcer in each Territorial Division to whom fines impo.sed 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 committed or is supposed to have been committed. ( Vide s. 28 post). It is to be remembered how. ever that the sum total of costs charges and expenses attending any prosecution cannot exceed eight dollars. { Vide s. 27 post). To whom and for what purpose Jine.s shall he paid over. 26. Every fine imposed under the authority of this Act shall bo paid to the Justices who impose M [ I i| 328 JUVENILE OFFENDEIW. the same, or to the Clerk of the Recorder's Court, or the Clerk of the County Court, or the Clerk of the Peace, or other proper officer, as the case may be, and shall be by him or them paid over to the County Treasurer for County purposes, if the same was imposed in the Province of Ontario ; an.d if it was imposed in any new district in the Province of Quebec, then to the Sheriff of such district as Treasurer 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 the Province of Quebec, then to the Prothono- tary of such district, to be by him applied, under the direction of the Lieutenant Governor in Coun- cil, 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 Goal in such district, so long as such fees are collected to defray the cost of such erection, and if it was imposed in the Pro- vince of Nova Scotia it shall be paid over to the County Treasurer, for County purposes, and if it was imposed in the Province of New Brunswick, it shall be paid over to the County Treasurer, for County purposes. Certificate of expenses. 27. The amount of expenses of attending before the Justices and the compensation for trouble and loss of time therein, and the allowances to the Constables and other Peace Officers for the appre- JUVENILE OFFENDERS. 329 hension and dotontion of the offendor, and the allowances to be paid to the prosecutor, witnesses and constables for attending at the trial or exami- nation 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. By whom such expenses ahoH he pnul. 28i Every such order of payment to any prose- cutor 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 till? 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, ui^on such Clerk being ]iaid his lawful fee for the same, and shall be made upon the ollicer to whom fines imposed under the authority of this Act are recjuired to be paid over in the district, city, county or union of counties in which the offence was committed, or was supposed to have been commit- ted, 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, out of any monies received by him under this Act, the money in such order mentioned, and shall be allowed the same in his accounts of such moneys. 330 JUVENILE OFFENDERS. Con. Stdt. cap. 106, repealed. Exception. 29. The Act chapter one hundred and six of the Consohdated Statutes of Canada is hereby repealed, except as to cases pending under it at the time of the coming into force of this Act, and as to all sentences pronounced and punishments awarded under it, as regards all which this Act shall be construed as a re-enactment of the said Act with the amendments hereby made and not as a new law. Commencement of this Act. 30 f This Act shall commence and take effect on the first day of January, in the year of Our Lord one thousand eight hundred and seventy. six of lereby r it at 3t, aud imeiits lis Act 10 said tud not iffect on ur Lord CAP. XXXIV. An Act respecting Juvenile Oftenders within the Province of Quebec. [Aeaenfed to 22W June, 1869.] Preamble. WHEREAS the Legislature of the Province of Quebec, during its now last Session, passed an Act making certain provisions lor the establish- ment of Certified Reformatory Schools, and the law respecting prisons for yonng offenders requires to be amended so as to meet the provisions of the said Act : Therefore, Her Majesty by and wdth the advice and consent of the Senate and House of Commons of Canada^ enacts as follows : Part Cap. 107, of Con. Stat. Can. rqjeakd. 1. In so far as respects the Province of Quebec, the sections five, six, seven, eight, nine, ten, eleven and twelve, of the chapter one hundred and seven of the Consolidated Statutes of Canada, intitled : An Act respecting' Prisons for young Offenders, are hereby repealed, except as respects person under sentence when this Act comes into force. Offenders under 16 t/car6 mai/ be sent to lie/ormatory Schools. 2. Whenever after the passing of this Act, any person apparently under the age of sixteen years 332 JUVENILE OFFENDERS. is convicted before any Court of Criminal Juris- diction or before any Judge of the Sessions of the Peace, Recorder, District or Police Magistrate, of any offence for which he would be liable to impri- sonment, he may be sentenced on such conviction, to be detained in a Certified Keformatory School for any term not less than two years, nor more than five years, or he may be sentenced to be first imprisoned in the Common Goal for a period not in any case exceeding three months, and at the expiration of his sentence to be sent to a Certified Reformatory School, and to be there detained for a period of not less than two years, and not more than live years. I'ou'ir to dischurgc. 3. The Lieuteuant-(iovernor may at any time, in his discri'tion, order that any olfender detained in such reformatory school under a summary conviction be discharii'ed. Rcniorit/ I if iiicorrigibiAtt. 4. The Lieutenant-Governor may at any time, on the report of one of the Inspectors of Prisons for the Province of Quebec, order any offender un- dergoing sentence in any Certified Reformatory School, on a conviction for felony, to be removed as incorrigible ; and in any such case the offender shall be imprisoned in the Penitentiary for the remainder of the term of his sentence. Ihtvntion of olpndtrs undrr lit years previous to tri-51 .Jurisdietion of the Quarter Sessions i'or offenecs e.KCCjiied from the jurisdiction of that Court. w 338 SPEEDY TRIAL OF FELONIES, AC. II 'U U 11 mi Consent of prisoner. The consent must be given by the prisoner personally, and an entry thereof should be mtide on the record of the cause immediately upon its being given. Dufi/ of Sheriff having a jtrisoner so triable. 2t It shall be the duty of every Sheriff within twenty-four hours after any prisoner charged as aforesaid is committed to jail for trial, to notify the Judge in writing that such prisoner is so confined stating his name and the nature of the charge preferred against him, whereupon with as little delay as possible, such Judge shall cause the pri- soner to be brought up before him. Statement to be made to prisonrr bi/ Jiufgr, If prisoner objects — or consents. Jf he pleads gui/ti/. 3. Having obtained the depositions on which the prisoner was so committed, the Judge shall state to him, — 1. That he is charged with the oflence, describ- ing it ; 2. That the prisoner has his option to be forth with tried before such Judge without the inter- vention of a Jury, or to remain untried until the next sittings of such sessions or of a Court of Oyer and Terminer, or, in Quebec, of any Court having criminal jurisdiction ; 8. If the prisoner demands a trial by Jury, the Judge shall remand him to jail ; but if he consents to be tried bv the Judo'e without a Jurv, the SPEEDY TRIAL OF FELONIES, AC. 339 lig [10 ts County Attorney or Clerk of the Peace shall draw lip a Record of the proceedings as nearly as may be in one of the forms in the Schedules A and B to this Act ; if upon being arraigned upon the charge the prisoner pleads guilty, such plea shall }>e entered in the Record, and the Judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed at any Court of General Sesions of the Peace. Jf he pleads not guilty. Trial .1 and cunt' let ion or dimluirgc 4. If the prisoner upon being so arraigned and consenting as aforesaid pleads not guilty, the Judge shall appoint an early day, or the same day, for his trial, and it shall be the duty of the County Attorney or Clerk of the Peace to subpcena the witnesses named in the depositions, or such of them, and such other witnesses as he may think requisite to prove the charge, to attend at the time appointed for such trial, and the prisoner being ready, the Judge shall proceed to try him. and it he is found guilty, sentence shall be passed as in the last preceding section mentioned, but if \\o is found not guilty, the Judge shall immediately discharge him from custody, so far as respects the charge in question. It is to 1)0 ronu'inberi'i I tliat all |iorsons tried uikIci- this Act are tried for indictable offences and tliat con.secjueutiy the provisions of 32 and .'{3 Vic. o. 20 s. 45 apply to tlieni and that thev are entitled after the close of the case for th< 340 SPEEDY TRIAL OF FKLONIES, AC. prosecution to niako full answer and defcnco tlicrcto by Counsel learned in the law. So far as the actual pr()eeedinlicable with the exception that the Crown has the ri<;ht of rej.ly.— 32 and 33 Vic. c. 29 s. 45. The rules applicable to trials ly only to the Provinces of Ontario and Quebec. The proper course, it i.s submitted where a witness does not attend in obedience to a summons or su])pccna, is I'or the party interested in his <2:ivin|j^ liis tesStimony, to exhibit his information in writin; mv as (he cas/^ may be) as aforesaid. Ami hath neglected to api)ear at the trial and place api)ointed without just excuse. Sworn (or aiUrmed) befi»re (me) the day and yi-ar first above montionetl at 0. K. Judge. APPENDIX. 345 W HO 10 Hiiid *> Hiiii,strict naUriftl ciine may mny he) r bouml or as the fore mo, chiirgc . before jid that tluit hr ,s the case the trial st above lulgo. (4) (L.S.) SCIIKDL'LK C. Ciiiiada, I'roviini- of To all or any of the ronstablcsor other I'lacL- otlicirs in tiie i»aiii (County (or District) as thf case may ft,) of " T. County (0/- Distrit t| ('/.«( the case may hi) of to wit : WluTcas it having' bitii niadf to a|»[»(ar bffun' nu' that K. K., in the said County (or District) (or a.f thr caspmay he,] was liki-ly to give material evidence on belialf of the prosecution or defence {as the case may he) on th«' trial of a certain char'-re of larceny) {or an thr cant' may hi'.\ aj^jiinst A. 15. . and tiiat the said K wan didy su|)bunae(l uibounaiicert as the case may be) to ai)pear on the day of , 18 , at in the said (County or District) (./.•( the case may he,) at o'clock (forenoon or afternoon, ^.i //ip case may be,) before ne- to toHtify what he should know concerning the said charge against the said K. F. And whereas proof hath this day been made before me upon oath of such subpcena havin^'^ been tluly served upon the said H. K., or of the said K. K. having hi'vu duly bound in recognizances to apjx-ar before me) in.t the case may he ;) And when as tiic said K. l"\, hath neglected to appear at the trial and place appointed and no just excuse has been olVered for su( h neglect ; 'J'hese are there- fore to coinnumd you to take the said K. F., and to bring and have him forthwith before mo, to testify what he shall know concerning the said charge against tin; said A. I!., and also to answ( r his contempt for such negleit. (liven under my hand thi.j ilay of vear of Our Lord 18 . in the 0. K. J u J^e. (^) JSCIIEDrj.E D. Be it remembered that on the day of in the year of our Lord 18 , in the (County or District as llu- case Jii'iy h') of E. F. is convicted said K. F. did not atteiul befor*' me to give evidence on tin; trial of a certain charge against one A. 15. of larceny, ('>/• as the case mty ic) although duly subpieiiaetl (or bound L,8. Canada, Province of (County or Distriet) T(i wit : before me, for that he th 346 APPENDIX. by recognizance) to appear and give evidence in that lK'l»alt («m the eate mat/ be) but made default therein, and hath not shewn beforo mc any sufficient excuse for such default, and I adjudge the said E. F for his said offence to be imprisoned in the Common (Jaol of the (County or District) of at for the space of there to be kept at hard labor (and in cafe a fine it alto intended to be imj>oied, then proceed.) And 1 alno adjudge that the said E. F, do forthwith pay to and for the use of Her Majesty a fine of dollars, and in default of payment that the said fine v/ith the costs of collection be levied by diHtress and sale of the goods and chattels of the said E. F. {or in case a fine clone it impoted, the rlatite/or imprisonment will be omitted.) Given nnd» i my hand at in the said (County or District) of the day and year first above mentioned. K Judge CAP. XXXVL An Act respecting the Criminal Law, and to repeal certain enactments therein mentioned. [Assented to 22nd June. 1869.J Preamble. WHEREAS by the several Acts of the Tarlia- ment of Canada, passed in the now last Session and present Session thereof respectively, and mentioned in the Schedule A to this Act, divers Act and parts of Acts^and provisions of law, heretofore in force in the late Province of Ca- nada and in the Provinces of Nova Scotia and New Brunswick, have been assimilated, amended and consolidated, and it is expedient *o provide for the repeal thereof, and of so much oi any other Acts or provisions of law as may be ^contrary to or superseded by the said Acts mentioned in Sche- dule A ; Therefore Her Majesty^by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : Avfs and vnactments in iSchedidr B. njuaUd. 1. The Acts and parts of Act« nientioiiod in Sche- dule B hereunto anut^xed, are horchy repealed, as are also all other Acts and parts of Acts and provi- sions of law, contrary to or inconsistent with the Acts mentioned in Scliedule A or any of them, subject to the following provisions : 348 CRIMINAL LAW — REPEAL. Exception as to subjecis under control <>/ Locnf LegU- hit n rex. Such repeal shiill not extend to matters relatiuij solely to subjects as to which the Provincial Le- irislatures have, under the British North America Act, 18(j7, exclusive powers of leg'islation, or to any enactment of any such Legislature for en- forcing l)y fine, penalty or imprisonment any law in relation to any such subject as last aforesaid, or to any municipal IJy-law relating to any ollence within the scope ol the powers of the municipality: Not t't (ijf'f'.ct certain Acts of the Dominion, or Acts nia/cimj provision on the S'(me subject as Acts in t^cJicduie A d'C. Such repeal shall not extend to any provision of any Act of (he Parliament of Canada, creating, or providing for the punishment of any ollence against such Act, or for the proceedings for en- forcing such provision, — or to any other Act or enactment not mentioned as repealed in Schedule IJ, and not contrary to the Acts mentioned in Schedule A, or any of them, but making special provision for the punishment of any ollence, or as to the proceedings for the prosecution and convic- tion of t)ie oll'ender, other than that made in the Acts in Schedule A or any of them for a like pur- postj : — but in any such case the ollender may be indicted or otherwise proceeded against, and con- victed (summarily or otherwise as the case may be,) and punished, either undt*r any of the Acts CRIMINAL LAW — IlEPEAL 34i> mentioned in kSchedule A, or any other Act of the Parliament of Canada, or under any such Act or enactment as aforesaid not mentioned as repealed in Schedule B : — As to itjfvni't's i'Dinmittcd and thii'ga Jour jtrior to suck rvjtcaf. Every offence wholly or partly committed against any Act or enactment hereby repealed^ prior to such repeal, shall ])e dealt with, inquired of, tried, determined and punished, and every penalty in respect of any such offence shall l)e recovered, in the sanu^ manner as il the said Acts and enactments had not been repealed : and every act dulv done, and everv AV'arrant and other instru- ment duly made or i»ranted before such repeal, shall continue and be of the same force and effect asiftlu^said Acts and enactments had not been repealed; aiul every rii'ht, liabililv, privilege and protection in respect of any mattr-r or thing com- mitted or done before such rei>eal, shall continue and l)e of the same forc<^ and ellect as if the said Acts and enactments had not been rc])ealed, and every action, prosr^cution or other ])roceeding coraiat'iieed before such repeal, or th(n'(>a ft im* com- menced in respect of any such matter or thing, may be prosecuted, continued and defended as il such Acts and enactments had not been repealed. As t(t crime (tf Jlujli Tt'i'Otun. 2. Nothing in any of the Acts mentioned in iSchedule A shall aiie<*t th"C •inie, of High Treason, 350 CRIMINAL LAW — REPEAL. T except only as respects cases punishable under the provisions of the Act for the better security of Iuk, Croivn and of the Govermnent, mentioned in the said Schedule. Special provision (is to prremjttorij rhatlruyrx and war- rants iu New Brunswick. 3. The provisions in the Act respecting proce- dure in criminal cases and other matters relating to criminal law, as to the number of peremptory challenges allowed to prisoners in criminal cases, shall not apply to any trial to l^e had in the Pro- vince of New Brunswick, before the iirst day of January, in the year of Our Loid one thousand eight hundred and seventy-one ; and until after tiie said day, a warrant issued by a Justice of the Peace in the said Province, may as heretofore be executed in any part thereof, without being backed. And as to scats to wurrantui, there and in olhrr ptnts of Canada. 4. No provision in any of the Acts mentioned in the said Schedule A requiring any warrant or document issued or granted by any Justice of the Peace, to be under seal, shnll apply to any such instrument or document issued or granted in the I*rovince of New llrunswick l)efore the day last aforesaid ; and if in any such instrument or docu- ment issued in any Province in Canada at any time, it is stated, that the same is given under the hand and seal of any Justice, sig!iing it, such seal CRIMINAL LAW — REPEAL. 351 10 •Ai Ue 111- \y lie u shall be presumed to have been affixed by him» and its absence shall not invalidate the instru- ment, or such Justice may at any time thereafter affix such seal with the same ellect as if it had been affixed when such instrument was signed. t^fxcitil provision us to imjirisonnicnt in New Brunswick or No I'd ASi'otid. 5. Notwithstanding any provision in any of the Acts mentioned in Schedule A, that any term of imprisonment less than two years shall be in some gaol or place of confinement other than the Peni- tentiary, ^ny offender sentenced under any such act before the day last aforesaid in New Bruns- wick or Nova Scotia, to imprisonment for a term less than two years, may in the discretion of the Court passing such sentence be sentenced to un- dergo such imprisonment in the Penitentiary of the Province where the sentence is passed, ins- tead of beim»' sentenced to uiiderffo ihe same in any other gaol or place of confinement, and any such provision as first aforesaid, shall })e construed subject to this section. As to tid njficers to whom mogniz'tncoi urr to hi tnint- miifed in Ontario (ind tlscwhrre. 6- In all cases when a party who has entered into a recoguizaiUM' under the Act rr^iperh'it^- Ike dudes of Justices of the Pene out of Sessions, in rela- tion to suiitmar// eon vie t ions find orders, has failed to appear according to the condition of such recog- nizance, and his default lirs been cerlilied by the 352 TRIM IN A r. LAW — REPEAL. I; I trj Justico or .lustices as thort'iii provided, the pro- per Ofiieor to whom Iho reconnizaiice and certi- ficate of default are to bo traiismilted in the Province of Ontario, sliall l)e the Clerk of the Peace oi* tlie County lor \vhich such Justice or Justices are ap])()inted or are acting, and (lie Court of Cieneral Sessions of the Peace for such Couniy sliall, at its then next Sitlin;jc, order »11 such re- coL»-nizances to hi* ibrfeited and estreated, and the same shall l)e enforced and collected in the same manner and suhjccl to tin* same conditions as any lines, Ibrfeitures or amercements im[)osed by or forfeited before such Court ; and m the otlier Provinces of Canada, tlit> " proptn- Ollieer" to whom any such recognizance and certilicate shall be transmitted, shall l)e (hf Oilicer to whom like roco^'nizances have bi'en heretofore accustomed to bo transmitted uiuUm* the law in force before the coming into force of the said Act, and such recognizances shall be enforced and collected in the same mann«'r as like recognizances hav»' liere- tofore been. -.I.s to nttinix hji f'n Jnxtias of f/tr Pvitcf. 7. Mo return purporting to l)i« madr by anv Justice of the Peace; under the Act last above cited, shall be vitiated by tiie fact of its including, by mistake, anv convictions or oreen repealed from the time when the Act or Acts to or with which they are contrary or inconsistent, came into force. II>nr this Act nhnll he eonstnied, 10- This Act shall l)e construed as having been passed after the Acts of the present Session men- tioned in Schedule A, and as amending and explaining them. SCIIKDULE A. ACTS OF THE PARLIAMENT OF CANADA. Acts pasucd in the Session o/lSGT-S, 3\st Victoriit. CHAPTER. 14 15 47 02 ijj) 70 71 72 73 74 75 TITLE. An Act to protect the inliabitants of Canada au'ainst lawless ap;gi'ession.s from subjects of foreign countries at peace with Her Majesty. An Act to prevent the unlawful training of per- sons to tlic use of arms, and the practice of mi- litary evolutions; and to authorize Justices of the l*e{ice to seize and vletain arms collected or kept for purposes dangerous to the public peace. An Act respecting the manufacture or importation of copper coins or tokens. . An Act respecting Ilaroor Police. An Act for the better security of the Crown and of the (.iovernment. An Act respecting Kiots and Riotous Assemblies. An Act respecting forgery, perjury and intimida- tion in connection with the Provincial Legisla- tures and their Acts. An Act respecting iiccessories to, and abettors of indictable offences. An Act respecting Police of Canada. An Act respecting persons in custody charged with high treason or felony. An Act res|)ecting penitentiaries and the Direc- tors tiicreof and for other purposes. ACTS OF THE PARLIA3IENT OF CANADA. 355 of k-cd Acts passed ill the pnscnt Session of the Parliament of Canada. An Act to remove doubts as to Lojrislation in Canada, regarding oflfcnces not wholly committed within its limits An Act respecting offences relating to the Coin. An Act respecting Forgery. An Act respecting offences against tlie Person. An Act respecting Larceny and other similar offences. An Act respecting malicious injuries to Property. An Act respecting Perjury. An Act for the better preservation of peace in the vici- nity of Public Works. An Act respectinti certain offences relative to Her Majes- ty's Army and Navy. An Act for the better protection of Her Majesty's Mili- tary and Naval Stores. An Act respecting Cruelty to Animals. An Act respecting Vagrants. An Act respecting Procedure in Criminal Cases and other matters relating to Criminal Law. An Act resp K< (/j 4:.^ 1.0 I.I IIM |||||?.5 IK l!ill6 1 2.0 1.8 1.25 1.4 — 1.6 ^ f^» — ► "/ # '^: c. ^l 9 c3 A oj^. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 %^ ^0 358 ACTS OP THE PARLIAMENT OP CANADA. Acts passed since the Consolidation of the Statutes. Reference to Act. 23 v., c. 37 24 V,, c. 7 24 v., c. 10 24 v., c. 11 24 v., c. 12 TITLE OF ACT. Extent of Repeal. 24 v., c. 14 24 v., c. 15 An Act for the further protec-iThe whole, tion of Growing Timber. An Act to amend the Law rclat- The whole, ing to the unlawful Adminis- tering of Poison. An Act to prevent vexatious In- The whole, dictments for certain Misdea- mcanors. An Act to amend the Prison and Asylum Inspection Act An Act to amend tbe one hun- dred and eleventh chapter oi, the Consolidated Statutes of Canada, intituled : " An Act respecting the Provincial Pe nitentiary of Canad?." iir. Act to abolish the right of Courts of Quarter Sessions and Recorders' Courts to try- Treasons and Capital Felo- nies An Act to amend the one hun- dred and second chapter of the Consolidated Statutes of Ca- nada, intituled : " An Act respecting the duties of Justi- ces of the Peace, out of Ses- sions in relation to persons charged with Indictable OflFen- ces." The whole. The whole. The whole. The wliole. ACTS OF THE PARLIAMENT OF CANADA. 359 Reference to Act. 24 v., c. 26 27, 28 v., c. 19. 29 v., c. 13 29 v., c. 14 TITLE OF ACT. Extent of Repeal. ,29, 30 5 v., 29, 30 v., c. 121 An Act to amend and consoli- Section thirty- date the Laws respecting the six. Recorders' Court of the City of Quebec. An Act to amend and consoli- The whole, date the Law lespccting Acces- sories to and Abettors of In- dictable Oflcnces, and for other purposes relative to the Cri- minal Law, An Act for abolishing the Punish- The whole, ment of Death in certain cases. An Act to provide more fully The whole, for *he punishment of Offen- ces i:gainst the Person, in res- pect to the crime of Kidnap- ping. An Act to prevent the unlawful The whole, training of persons to the use of arms, and to practice mili- tary evolutions or exercises ; and to authorize Justices of the Peace to seize and detain arms collected or kept for pur- poses dangerous to the public peace. An Act to incorporate the Canada I Vine Growers' Association. Section sixtecD. mmm wmm 360 ACTS OF THE PARLIAMENT OF CANADA, Consolidated Statutes /or Upper Canada. Referenc3 to Act. Chapter 13 TITLE OF ACT. Extent of Repeal. Chapter Chapter 31 32 Chapter 97 An Act respecting the Court or So much as is Error and Appeal. repealed by or inconsis- tent with the Act of this Session, res- pecting Pro- cedure in Criminal ca- ses, and other matters relat- ing to Crimi- nal LaAV. Sections nine- ty-nine :.nd one hundred. Sections three and four, as to Criminal cases only. The whole. An Act respecting Jurors and Juries. An Act respecting Witnesses and Evidence. An Act relating to High Trea son, to Tumults and Riotous Assemblies and to other oflfen- ces. Chapter 99 An Act to prevent the unlawful training of persons in military evolutions and the use of fire arms ; and to authorize the seizure of fire-arms collected for purposes dangerous to the public peace. The whole ex- cept section three. ACTS OP THE PARLIAMENT OF CANADA. 361 Reference to Act. TITLE OF ACT. Chapter 100 An Act for the punishmen' of any persons who seduce sol- diers or sailors to desert from Her Majesty's service. An Act respecting Forgery and Perjury in certain cases. Chapter 101 Chapter Chapter Chapter Chapter 108 110 111 113 An Act respecting prosecutions in cases of Misdemeanor. An Act to allow to any person indicted a copy of the indict- ment. An Act respecting amendment.'!^ at trial. An Act respecting new trials and appeals, and Writsof Error in Criminal cases in U. Canada. Extent of Repeal. Chapter 115 An Act respecting the punish iiicnt of certain offences, and the commuting of sentence of death in certain cases. Chapter 116 An Act respecting corruption of blood. Chapter 124iAn Act respecting the Return of; Convictions and Fires by Jus- tices of the Peace and of Fines levied by Sheriffs. The whole. The whole, ex- cept^ section two. 1 Section'three. The whole. The whole. The whole, ex- cept sections five, sixteen and sev'teen.. The whole. The whole. The whole, ex- cept section seven. Acts passed since the Consolidation of the said Statutes. 29,30 v., c. 41 An Act to amend the Law of Crown and Criminal Proce- dure and Evidence at Trial in Upper Canada. The whole, so far as regards criminal pro- cedure only. 362 ACTS OF THE PARLIAMENT OF CANADA. Reference to Act. TITLE OF ACT. Extent of Repeal. 29, 30 v., c. An Act respecting Persons in 44 custody charged with High Treason or Felony. 29, 30 v., c.An Act to amend the Law res- 50 pecting Appeals in cases of Summary Con^ictions, and Returns thereof by Justices of the Peace in Upper Canada. The whole. The whole. Consolidated Statutes for Lower Canada. 13 77 Chapter Chapter Chapter Chapter Chapter Chapter 105 The whole. 12 An Act respecting the Desertion of Soldiers. An Act respecting Arms and Munitions of War. An Act respecting the Court of Section sixty- Queen's Bench, 84An Act respecting the selecting and summoning of Jurors. 98|An Act respecting Appeals from the decisions of Justices of the Peace in Summary Convic tions. An Act respecting certain mat- ters connected with the Ad ministration of Justice in Cri- minal Matters. The whole. three. Section thirty- three. Sections one and two. Sections one, three, four and five. ACTS OP THE LEGISLATURE OF NEW BRUNSWICK 363 Revised Statutes. — Pcwt IV. Reference to Act. TITLE OF ACT. Extent of Repeal. Chapter 138,Of Summary Convielions before The whole ex- Justices, cept sectibn twenty-two, which shall apply to the new Summa- ry Convic- tions Act. Chapter 1-17 Of Offences against the Public Sections one, Peace. , two, three, four and five. Chapter 148 Of Ofiences apjainst the Admi-Tlie whole. nistration of Justice. Chapter 149 Of Homicide and other OflTenceslThe whole, against the Person. Of Offences against the Habita-lThe whole. tion. Of Fraudulent Appropriations. The whole. Of Forgery and Offences relating The whole. to the Coin. Of Malicious Injuries to Proper- ty. Chapter 150 Chapter 151 Chapter 152 Chapter 153 Chapter 154 Chapter 155 Chapter 156 Of other Felonies. Of the Definition of Terms and Explanations. Of Proceedings before Indict- ment. The whole, ex- cept section sixteen. The whole. The whole. The whole, ex- cept sections seventeen, eighteen, twenty, and twenty-two. 3G4 ACTS OF THE LEGISLATURE OF NEW BRUNSWICK. ! I Reference to Act TITLE OF ACT 1 Extent of Repeal. Chapter 158 Of ProcccdingF on Indictment, The whole, ex- cept sections three and ' twenty-three. Chapter 159 Of Trial. The whole, ex- cept sections ten, twenty- two, twenty- three, twen- ty-four, twen- ty-five, twen- ty-six, and so much of sec- tion twenty- seven as res- pects the ap- propriation of the fine in cases of com- mon assault. Chapter 160 Of Error, Punishment ar id Ex- Sections two. penses* three, four, five, six, seven, and thirteen. The Schedu- The whole, ex- les to Part cept Schedule IV. U. Acts passed since the Revision of the Statutes. 21 V.,(1858)!An Act in amendment of the C.22 Criminal Law. The whole, ex- cept sections three and five ACTS OF THE LEGISLATURE OP NEW BRUNSWICK. 365 |e, ex- icdule Reference to Act. 23V.,fl8G0) c. 32 23V.,(18G0) 0.33 23V.,(18G0) c. 34 24V.,(1861) c. 10 25Y.,(18G2 c. 10 25y.,(18G2) c. 21 27y.,(18G-l) e.4 27V.,(1864) c. 6 Extent of Kepeal. An Act relating to Procedure in Sections tlireo Criminal Cases. | and five. An Act in amendment of the Law The whole. relating to Summary Convict-] tions. I An Act to amend the Law relat- The whole. ing to False pretences. An Act to prevent the carrying The whole. of Deadly Weapons about the Person. An Act to amend the Law relat-The whole. ing to Offences against the Person. An Act for taking away the Pu- The whole. nishment of Death in certain cases, and substituting other Punishments in lieu thereof. lAn Act further to amend the The whole. Law relating to Offences against the Person. An Act relating to Larceny and.Thc whole. other similar Offences. 27 V.,(18G4) An Act relating to the issuing Section one. c. 8 30V.,(1866 c. 9 of Warrants by Justices of the Peace, and in aid of Police Officers and Constables in the execution of of their duties An Act respecting Offences relat- ing to the Army and Navy. The whole. le, ex- Ictions id five 366 ACTS OP THE LEGISLATURE OF NOVA SCOTIA. Revised Statutes — Third Scries — PdrtH III an d IV Reference to Act. Chapter 136 TITLE OF ACT. Extent of Repeal. Chapter Chapter Chapter Chapter Chapter 15G 157 159 161 Of Juries. Of Treason. Of Offences relating to the Army and Navy. Of Offences acainst Ileli<;ion. Section lifty- one, and sec- tion fifty- seven so far as regards crim- inal cases. The .whole. The whole. Sections one and three. Of Offences against the Law of Sections one and two. Chapter 103 Marriage. lG2 0f Offences against the Public Sections one, Peace. two, three and four. Of Offences against the.Admiuis-|Thc whole, tration of Justice. | Chapter 164jOf Offences against the Person. iThe whole. Chapter 1G6 Of Offences against t)ie Habita-IThe whole. tion. Chapter 167jOf Fraudulent Appropriations. iThe whole. Chapter 1G8 Of Forgery and Offences relating The whole. to the Coin. I Chapter lG9|0f Malicious Injuries to Pro- The whole. I perty. Chapter 1 70 Of the Definition of Terms in The whole. I this Title. I ^CTS OF THE tE,„sl.ATUR£ oF NOV. . ________^ ^ *^* ^ovA SCOTIA 36y Reference to Act. TITLJi: OF ACT; Chapter 171,0f t,. AdnnnistrationT^'iTTT^ I »al Justice in tho ^'m • r ^'^ ^^oie, ex- ' Court. ^'^" ^upenov^ cept sections. fi%-nine,8ix- ty, sixty-one,, sixty-two, sixty-three, sixty-four, sixty-five, sixty-six, six- ty-seven, seventy-five eighty-six, ' eighty-seven, eighty-eight, eighty-nine, ninety,ninety one, ninety- four, ninety- five, ninety, six, ninety- seven, ninety- eight, ninety- nine, one hundred, one hundred and one, one hun- dred and two, one hundred and three, and the sche- dule to the said chapter.. 368 ACTS OF THE LEOISLATURE OP NOVA SCOTIA. Reference to Act. TITLE OF ACT. Extent of Kepeal. Chapter 172,Of the Duties of Justices of the The whole. Peace in (h-iminal Matters. Acts passed since the Revision of the Statutes. 27V.,(18G4) c. 9 29V.,a8GG) «. 19 29V.,(18r)G) c. ;J7 . 29V.,(18GG) c. 38 30V.,(18G7) c. 13 An Act in addition to CliapterThe whole. 1()7 of tlic Bill for llevisingi and Consolidatinj^' tlic General Statutes of Nova Scotia, '^ Of Offences ap^ainst the Person." An Act in addition to, and to The whole. amend Chapter 1G9 of the Revised Statutes, " Of 3Iali- cious Injuries to Property."! An Act to provide for the seizurc:Tlic whole. of Arms and Munitions of War. An Act for the better security The whole. of the Crown and the Govern- ment of Nova Scotia aj^ainst Treasonable and vSeditious Practices and Attempts. ] An Act to amend Chapter 157 The whole. of the Revised Statutes of Nova Scotia (third series) "Of Offences relatinu" to the Army and Navy." ADDENDA. le. -:o: The following Sections of the Statutes of thb OLD Provinces are preserved from repeal by Sche- dule B OF 32 k :j:J Vic. Cap. 3G. ~» •< consolidated statutes OF CANADA, CHAPTER 102. An Act rcspcctiiKj the duties of Justices of the Peace out of Scsfiious in rehition to persons charged with Indicta- ble Offences. 59. In all cu.sch in Lower Canada whore such Constable or other perfAon i.s entitled to his eosts or expenses for con- veying such person to prison as aforesaid, the justice or jus- tices who commit the accused party, or any Justice of the Peace in and for tiie Territorial Division wherein tlic offence is alledged in the said warrant to have been committed, may ascertain the sum which ought to be paid to such constable or other person for arresting and conveying such prisoner to !«uch gaol or prison, and also the sum which should reasonably be allowed him for his expenses in returning and thereupon such justice sliall make an order (T. 2) upon the Sheriff for the Territorial Division witliin which the offence is alledged to have been committed, for payment to such Constable or other person of the sum.s 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 Consta- ble or other person producing the same, or to any person who produces the same to him for payment. 14, 15 V. c. 90, s. 18. Latter part. 370 ADDENDA. CONSOLIDATED STATUTES OF CANADA, CIIArTER 103. Ail Act respecting the duties of Justices of the Peace out of Sessions, ii relation to summary convictions and orders. Regulation as to the j^^'^m^^^t of Clerk's fees. 74. Ill Lower Canada the Fees to wbich any Clerk of the Special Sessions, or Clerk of the weekly Sessions or Clerk to any Justice or Justices out of Sessions, is entitled, shall be ascertained, appointed and re2;ulatcd in manner following, that is to say : the Justices of the Peace, at their General or Quarter Sessions for the several Districts, shall, from time to time, as they sec fit, make Tables of the Fees which in their opinion should be paid to the Clerks of the special and weekly sessions, and to the clerks of the Justices of the Peace within their several jurisdictions, and which said Tables, being signed by the Chairman of every such Court of General or Quarter Sessions, shall be laid before the Secretary of this Province, and such Secretary, if he sees lit, may alter -f^uch Table or Tables of Fees, and subscribe a certificate or dcicla- ratiou that the Fees specified in such Table or Tables, as made by such justices, or as altered by such Secretary, 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 sucli Tables or set of Tables of Fees to be transmitted to the several Clerks of the Peace throughout Lower Canada, to bo by them dis- tributed to the Justices within their several Districts respect- ively, and to be by the said Justices placed in the hands of their Clerks respectively. (14, 15 V. c. 95, ss. 20, 18.) Penalty for Clerics receiving greater fees than entitled to. 75. If after such copy lias been received by any such ADDENDA 371 out Icrs. rthe •k to ill be ,ving, ral or me to their weekly vithin being :ral or clerk, he dcniatids or receives any otlicr or greater fee or gratuity for any business or act transacted or done by him as such clerk than such as is set down in such Table or Set of Tables, he shall forfeit 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 per- son who will sue for the same. 14, 15 Vic. c. 95, s. 2G. What Fees Clerks mai/ thniKuJ. 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 rule or regulation of a Court of General or Quarter Sessions, or other- wise authorized to demand and receive. 14,15 Vic. c. 95, S.21. Rrgiil'tions as to whom Penalities^ tCr., are to he paid. 77. In every Warrant of Distress to be issued as afore- said in Lower Canada, the constable or other 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 the case may be) for the place wherein the Justice or Justices issued supIi 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 tlic Peace, Clerk of the Special Session.-. Clerk of the Weekly Sessions, or Clerk of the Justice of the Peace (as the case may be.) 14, 15 Vic. c. 95, s. 27. May pay penalty to Gaoler. Gaoler to pay the same to Clerk. 78. If any person committed to prison in Lower Canada I il 11 i';,'^ !* 372 ADDENDA. upon any conviction or order as aforcsuid 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 forthwith 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 be.) 14, 15 V. c. 95, s. 27. As to whom Clerk is to pay the same. 79. All sums so received by the said Clerk shall forthwith be paid by him to the party or parties to whom the same res- pectively are to be paid according to the directions of the Statute, on which the information or complaint in that behalf has been framed. 14, 15 V. c. 95, s, 27. In certain cases Clerk to pay the same to Treasurer, &c. 80. If such Statute contains no such directions for the payment thereof to any person or persons, then such clerk shall pay the same to the Treasurer of the District, Munici- pality, City, Town or Borough in which such per.son has been so condemned to pay the said sum, and for which such Treasurer shall give him a receipt. 14, 15 V. c. 95, s. 27. Said Clerks and Gaolers to keep an ejcact account of all such moneys received hy them, t£r. 81. Every such Clerk of the Special Sessions, Clerk of the Weekly Sessions, or Clerk of the Justice of the Pe:ice, and every such Craolcr or Keeper of a prison, shall keep a true and exact account of all such moneys by him received, of whom and when received and to whom and wlien 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 ADDENDA. 373 .of ires Line var- ror such said fthe ,Q (as iiwith e res- of the behalf the clerk unici- haa such 27. ant of m L of the •c, and a true ,'od, of \(\ shall ry such I ^Yhich such payment has been made, who sliall likewise, every three months, render a similar account to the Justices assembled at the Quarterly Sessions of tlie Peace for the said District, as also, once every month to the Justices as.sembled at the Week- ly Sessions of the Peace. 14, 15 V. c. 95, s. 27. Clerics of the Peace in L. C. t Act as Clerks of Justices. 85. In all the Citic;!, Towns, and other places in Lower Canada where General or Quarter Sessions of the Peace are held, the Clerk or Clerks of the Peace shall act as Clerk or Clerks of the Justices of the Petsce 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. |14. 15 V. c. 05. s. .32.) CONSOLIDATED STATUTES OF f'ANADA. CUAPTEll 105. An Act respecting the promjtt and Summary Adminis- tration of Criminal Justice in certain cases. Jurisdiction of Recorders extended to Inspectors ef Police and Police Magistrates. 30. The Inspector and Superintendent of Police for the City of Quebec, the In.cpector and Superintendent of Police for the City of Montreal, and the Police Magistrate for any City in Upper Canada, sitting in open Court, may respec- tively in the case of persons charged before them, do all acts by this act authorized to be done by Recorders, and all the provisions of this act referring to Recorders and Recorders Courts, and tlie Clerks of the Recorders' Courts, shall be read and construed also as referring to such Inspectors and Superintendents of the Police and Police Magistrates and the Courts and the Clerks of the Courts held by them res- pectively, and as giving them full power fo do all acts authorized to be done by Recorders in the case of persons charged before them respectively. 20 V. c. 27, s. II. 11 m "! M 374 ADDENDA. Powers of Recorders vested in tv:o J. Ps. or in Sheriffs^ cCt., in L. C. 31. All the jurisdiction and powers vested in the Recorder of any City are hereby conferred upon and vested in any two or more Justices of the Peace for any District in Lower Canada wlien present at a chef-lieu .thereof, and there sitting in open Court, and upon and in the Sheriff of any District in Lower Canada, (other than the Districts of Quebec and Montreal,) and upon and in any Deputy-ShentF in the District of Gasp(5, sittinp; in open Court ; but the jurisdiction and powers aforesaid shall not be exercised by any two or more Justices of the Peace or Sheriff in any new District until such District has been established as such for all purposes of the administration of Justice in Criminal as well as civil matters, under a proclamation of the Governor to that effect. 22 V. c. 27, ss. C, 10. Sheriff exercising jurisdiction as aforesaid to he attend- ed hy certain office rs. 32. The Sheriff of such districts as aforesaid in Lower Canada, or any Deputy Sheriff in the District of Gaspd, when sitting or acting under the provisions of this Act, shall be assisted, attended and obeyed by the Clerk of the Peace, Bailiffs, Constables and other Officers of such districts res- pectively, in the same manner as justices of the Peace in and for the said districts respectively, would be attended, assisted and obeyed by them respectively, under the same or similar circumstances ; and the Clerk of the Peace for each such district shall be and act as the Clerk of the Court of the She- riff of such district under the provisions of this act and of the act hereby amended. (22 V. c. 27, s. 7.) Recorders of Quebec and Montreal declared to he J. Ps. 33. The Recorders of the Cities of Quebec and Montreal ADDENDA. 375 leal respectively, have been .and arc, by virtue of their oflScca, Justices of the Peace for the judicial Districts in which the said Cities are respectively situate, and vested with all the powers and authorities, within the limits of their respective jurisdictions, of any one or two Justices of the Peace, as the ca«e may require. (22 V. c. 27, s. 9.) REMARKS. The offices cf Inspector and Superintendent of Police at Quebec and Montreal have been abolished. The Juduje of Sessions in those Cities now exorcisintr the dutie.«i of such Inspector and Superintendent. For the jurisdiction reserved by the non repeal of the fore- going sections vide section 1 of this Act. CONSOLIDATED STATUTES OF CANADA, CHAPTER 106. An Act resjyccting the trial and punisliment of Juvenile Offenders. Power to J. Ps. to hear and determine. 6. Any two or more Justices of the Peace, for any Dis- trict 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 aforesaid, 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. 20 v., c. 29, s. 3. Same power to Recorder, dr., and certain other Func- tionaries. 1. The Recorder, Inspector and Superintendent of Police, of either of the Cities of Quebec or Montreal, the Sheriff of any District in Lower Canada, other than the Districts of of Quebec and Montreal, any Deputy Sheriff in the District f I \ 376 ADDENDA. of Gasp<5, any Judge of a County Court in Upi)er Canada being a Justice of the Peace, any Hecorder of a City in Upper Canada, being a Justice of the Peace, any Police Magistrate in Upper Canada, and any Stipendiary Magistrate in Upper Canada, sitting in open Court, and having by law the power to do acts usually required to be done by two or more Justices of the Peace, may and shall, within their res- pective jurisdictions, hear and determine every charge under this Act, and exercise all the powers herein contained, in like manner and as fully and cflfectually as two or more Justices of the Peace can or may do by virtue of this A^t. 20 v., c. 29, s. 3. Sheriffs when sitting under thi.s Aet to be nttoided by Clerics of the Peace, 8. The Sheriffs of such Districts as aforesaid respectively, and any Deputy Sheriff in the District of Gaspe, when sitting or acting under the provisions of this Act, shall be assisted, attended and obeyed by the Clerks of the Peace, Bailiffs, Constables, and other Officers of such Districts respectively, in the same manner as Justices of the Peace in and for the said Districts respectively would be assisted, attended and o'beyed by them respectively, under the same or similar circumstan- ces; and the Clerk of the Peace of each such District, shall be, and act as the Clerk of the Court of the Sheriff of such District, under the provisions of this Act. 20 V., c. 29, s. 4. REMARKS. There was no necessity for excepting the foregoing 6 & 7 sections from the repeal of the whole Act, as their provisions are reproduced in 32 & 33 Vic, c, 35. ADDENDA. 377 REVISED STATUTES OP NOVA SCOTIA, CHAPTER 171, Of the Administration of Criminal Justice in the Suprcnie Court. Charges of conveying prisoners to Jail to he defrayed by themselves ichen of ability ; jirocedings to recover the same. 59. Any person that shall hereafter be committed to Jail for any oflFence or misdemeanor, having means or ability thereunto, shall bear his own reasonable charges for conveying or sending him to Jail, and the charges also of such as shall be appointed to guard him and shall so guard him thither ; and if any person shall refuse to defray such charges, then a Justice of the Peace, by writing under his hand and seal, Bhall give warrant to any constable to sell so much of the goods and chattels of the said person so to be committed as by the discretion of the said Justice, shall satisfy and pay the charge of his conveying and sending to the Jail, the appraisement to be made by two inhabitants of the town or place where such goods or chattels shall be, and the overplus of the money which shall be made thereof to be delivered to the party to whom such iroods shall belong. Constables, expenses how allowed and paid. 60. If the person so to be committed shall not have or bo known to have any goods or chattels which may be sold for such purpose, then the said Justice, on application by any Constable or other Officer who so conveyed such person to jail, shall upon oath examine into and ascertain the reasonable expenses to be allowed such Constable or other Officer, and shall forthwith, without fee, by warrant under his hand and seal, order the Treasurer of the County to pay the same, which the Treasurer is hereby required to do as soon as he re- ceives such warrant, and any sum so paid shall be allowed in his accounts. '■ is 11 378 ADDENDA REVISED STATUTES OF NEW BRUNSWICK, CII AFTER 138. Of summnrij convictions he/ore Justices. 22. All yums received by any officer under any of the foregoing proceedings sliull be paid by liiiu to the County Treasurer for County contingencies, except such p;irt thereof iis any person may be legally entitled to. REVISED STATUTES OP NEW BRUNSWICK, CHAPTER 156. Of proceedings^ before Indictment. 17. The Clerk of the Peace in every County shall advise and assist any Justice of the County when required by him, in any proceeding had before him in regard to any person charged with or suspected of felony or misdemeanor, and shall attend any examination before such Justice, if the same take place within forty five miles from the Court House of the County, for which he shall be paid a reasonable compensation out of the funds of the County, by order of the Justices in Sessions. IVEVISED STATUTES OF NEW BRUNSWICK, CHAPTER 159. Of Trial 27. All cases of common assault and battery may be dealt with by any two Justices of the County wherein the offence may have been committed, and on conviction (v), the offen- der shall be fined in a sum not exceeding, with costs, five pounds ; but this shall not prevent any inhabitant of such County from being a competent witness to prove the offence; If the fine and costs be not paid, the Justice shall commit the offender to gaol for any term not exceeding one month, unless the same be sooner paid. If the Justice deem the offence not proved, or the assault and battery justified, or so trifling as not to require punishment, and so dismiss the case, they shall give the Defendant a certificate thereof. ADDENDA. 379 REVISED STATL'TES OF NEW BRUNSWICK, CUAPTER IGO. Of Error, Piutishnifnt, and Expt'nsis. 8. The Justices in Session?*, or at any Special Sessions when called for the purpose, shall make trt'neral reprulations for carrying out any sentence to hard luhor. and ior properly securing and governing the o{fendei*s while at work, which labor may be performed at any place within the County, The Justices shall appoint overseers to superintend the offenders ; and when the labor is to bo performed in the gaol, the con- currence of the Sheriff' shall be had to such regulations. 9. The proceeds of the works shall be applied by the Se.^ sicns to the support and clothing of the offenders, any over- plus to be paid to the County Treasurer, 10. The Justices in Sessions, or at any S}>ecial Sessions called for that purpose, may sentence to .solitary- confinemeat any person refusing to work, or guilty of misbehavior or disorderly conduct, for a term not exceeding such offender's sentence. 11. When it becomes necessary to convey any person arrested under a criminal charge to or from the gaol of the County where he was arrested, to the gaol of the County where the offence was committed, any two Ju.stices of the last mentioned County may order a rea.sonable sum for the expense of such conveyance to be paid by the Treasurer of that County out of any County moneys in his hand.**. STATUTES OF NEW BRUNSWICK. 21 Vic. c. 22. An xict In Amendment of the Cruaund Laic. 5. Any person charged with larceny, or of receiving stolen goods knowing them to be stolen, mny. when the value lj\ II I J- ■.f1 I'll 380 ADDENDA, of the property so taken or received shall not exceed Ave ponnds, be admitted to bail by any Justice before whom the charge may be made ; but sliould such person be committed to Gaol for want of bail, and tliere remain for forty-eight hours, he may be tried bcioic throe Justices of the County where the offence was committed, and if convicted, may be imprisoned in the Common Gaol, or Provinci.d Penitentiary for a term not exceeding nine months. PvEMAIlK.S. The foregoing clauses of Statutes having reference to Jus- tices of the Peace, Recorders, &c., in force in the Provinces at the time of the passing of the 32 and 33 Vic. c. 30, were saved from repeal by Schedule B. to that Statute. Very grave doubts may be entertained as to the wisdom of the plan followed. It would have been far better had each Statute of the Dominion been complete in itself, not needing reference to Statutes of the different Provinces to fill up voids. Uni- formity on all points would also have been secured, insteud of the present mongrel system. CAP. XXV U. An Act to amend the Act respecting the Du- ties of Justices of the Peace out of Sessions in relation to Sunimarv Convictions and Orders. [AsseHfetHo V2th Mui/, 1870.] PrcnmUr, :i2-:j:i r. c. 31. WHEREAS, it is expedient to amend Sections sixty-live and seventy-one of the Act res- pecting the duties of Justices ot the Peace out of Sessions in relation to summary convictions and orders ; Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : New Section in place of Section 05. 1, Section sixty-tive of the said Act is hereby repealed, and the following section substituted : Appeal given from any cwiviction or order of a Ju»tice or Justices of the Peace. " 65. (Inlcss it be otherwise provided in any special Act •' under which a conviction taken place or an order i.s made ** by a Justice or Justices of the Peace any person who '* thinks himself aggrieved by any such conviction or order, " may appeal in the Province of Quebec or Ontario, to the " next Court of General or Quarter Sessions of tlic Peace; •' or in the Province of Quibcc, to any other Court for tho y r 382 ADDENDA. " time boing discliarginji; the functions of such Court of " General or Quarter Sesnions of tlie Peace iu and for any " (liHtrict therein ; in the Province of Nova Scotia, to the " Supreme Court in the County where the cause of the " infonuution or complaint has arisen ; and in the Province " of New Brunswick, to the County Court of the County " where the cause of the information or complaint has arisen ; " Such right of appeal shall he su}»j»'ct to the conditions " following : 6'o // d'tt ion s of oppi'f f. Timr/or Appeal, " 1. If the conviction or order be made niore than twelve " days before the sittings of the court to which the appeal " is given, such appeal shall bo made to the then next sittings " of such court ; but if the conviction, or order, be made "within twelve days of the'sittings of such court then to " the second sittings next after such conviction or order : Notice to or for prosecutlo}!. " 2. The person aggrieved sliall give to the pro.-ccutor or " complainant, or to the convicting Justice or one of the " convicting Justices, for him, a notice in writing of such " appeal, within four days after such conviction or order ; Persons so appealing to rcinnln In cnsfoil^, or give sccn- rlti/, or In. certain cases to deposit money as secnrlfi/. " 3. The person aggrieved shall either remain in custody " until the holding of the Court to which the appeal is given " or shall enter into recognizance, with two sufficient sureties, '* before a Justice or Justices of the Peace, conditioned " personally to appear at the said Court, and to try such " appeal, and to abide the judgment of the Court thereupon, " and to pay such costs as shall be by the Court awarded ; " or if the appeal be against any conviction or order, whereby ADDENDA , 383 of any the the ince inty Hon ; wclve ippcal t tings made icn to r : .tor or fit' the Mich lor ; sccn- mstody j^ivcn Ircties, Itioned such fcupou, lirded ; iicreby " only a penalty or nun of money is udjudjrod to bo paid. " the person a«r<^ricve " be paid, togetlier with the costs of the conviction or order, " and tlic costs of tlie appeal ; and upon such recognizance ** being given, or such dejiosit made, the Justice or Justices ** before whom such recognizance is entered into, or deposit '* made, shall liberate such person if in custody ; Court to hear citiiljletci'inine the (ij)peaf. ff the cainiction or order Is affirmed. Jf quashed. Power to adjourn procrtdings. " And the Court to which such appeal is made shall " thereupon hear and determine the matter of appeal, and " make such order therein, with or without costs to either " party, including costs of the Court below, as to the Court " seems meet ; and, in case of the dismissal of the appeal or '' the affirmance of the conviction or order, shall order and " adjudge the offender to be punished according to the con- '' viction, or the Defendant to pay the amount adjudged by " the said order, and to pay such costs as may be awarded ; " and shall, if necessary, issue process for enforcing the judg- *' mcnt of the court ; and in any case where, after any such " deposit has been made as aforesaid, the conviction or order " is affirmed, the Court may order the sum thereby adjudged " to be paid, together with the costs of the conviction or '' order, and the costs of the appeal, to be paid out of the " money deposited, and the residue, if any, to be repaid to 384 ADDENDA. " the Defendant ; and in any case where, after any such '' deposit, tlic conviction or order is quashed, the Court shall " order the money to be repaid to the Defendant ; and the " said court shall have power, if necessary, from time to *' time, by order endorsed on the conviction or order, to " adjourn the hearing of the appeal from one sittings to '' another, or others, of the said Court ; Memorandum of quashing to he made. Its effect. " In every case where any conviction or order is quashed ' on appeal as aforesaid, the Clerk of the Peace or other ' proper officer shall forthwith endorse on the conviction or ' order a memorandum that the same has been quashed ; and ' whenever any copy or certificate of such conviction or ' order is made, a copy of such memorandum shall be added ' thereto, and shall, when certified under the hand of the ' Clerk of the Peace, or of the proper officer having the ' custody of the same, be sufficient evidence in all Courts ' and for all purposes, that the conviction or order has been " quashed." Section 71 repealed. 2. Section seventy-one of the said Act is repealed and the following substituted therefor : No conviction apj^rovedmay he removed hy certiorari, (^c. "71. No conviction or order affirmed, or affirmed and •• amended in appeal, shall be quashed for want of form, or " be removed by certiorari into any of Her Majesty's Supc- " rior Courts of Record ; and no warrant or comuiitmcnt ** shall be held void by reason of any defect therein, provided •' it be therein alleged that the party has been convicted, " and tliero be a goo'l and valid conviction to sustain the '• s:mio." ADDENDA. 385 and ^1, or ^iipc- iicnt l-iilcd ictcd, tlie Recital. At what times and to whom the Return., required hy Sec. 76 shall he made. What cases any such return shall include : how posted up and published y &c. Copy to Minister of Finance. Provisions of Sec. 78 to apply. 3. And whereas, in some of the Provinces of Canada, the terms or sittings of the General Ses- sions of the Peace or other Courts to which, under section seventy-six of the said Act, Justices of the Peace are required to make E-ef urns of con- victions had before them, may not be held as often as once in every three months ; and it is desirable that such Returns should not be made less fre- quently : Therefore it is further enacted, that the Returns required by the said seventy-sixth section of the Act hereinbefore cited shall be made by every Justice of the Peace quarterly, on or before the second Tuesday in each of the months of March, June, September and December in each, year, to the Clerk of the Peace or other proper officer for receiving the same under the said Act, notwithstanding the Greneral or Quarter Sessions of the Peace of the County in which such con- viction was had may not be held in the months or at the times aforesaid : and every such Return shall include all convictions and other matters mentioned in the said section seventy-six, and not included in some previous Return, and shall, by 'I 386 ADDENDA. the Clerk of the Peace or other proi)er officer receiving it, be fixed up and published, and a copy thereof shall be transmitted to the Minister of Finance, in the manner required by the eightieth and eighty-first sections of the said Act ; and the provisions ,of the seventy- eighth section of the said Act, and the penalties thereby imposed, and all the other provisions of the said Act, shall here- after apply to the Keturns hereby required, and to any offence or neglect committed with respect to the making thereof, as if the periods hereby ap- pointed for making the said Returns had been mentioned in the said Act in -stead of the periods thereby appointed for the same. Ncu'fonn of Notice of Appeal. 4. The Form followuig shall be substituted for the form of Notice of Appeal against a conviction or order contained in the Schedule to the said Act. . ADDENDA. 387 General Form of Notice of Appeal against a Conviction or Order. To C D. of, Ac, and {the navies and additions of the i>ar~ tie-* to whom the notice oj appeal is required to be given.) Take notice, that I, the undersigned A. B., of do intend to enter and prosecute an appeal at the next General (Quarter Sessions of the Peace {or other Court, as the case viai/ be,) to be holden at , in and for the District (or County, United Counties, or as the case may be) of against a certain conviction (or order) bearing date on or about thk> day of instant and made by (you) C. 1)., Esquire, (one) of Her Majesty's Justices of the Peace for tile saitl District {or County, Unit<>d Counties, or as the com may be) of , whereby the said A. B. was convicted of having or was ordered to pay (here state the offence as in the conviction, injorvuitions, or summons, or the amount adjudged to be paid, as in the order, as correctly as possible. ) Dated this day of hundred and A. B. , one thousand eight MEMonAXDUM. — //" thix notice be given by several Dejendant*, or by e I of Ico led Backing.— Warrant, 70, 71, 72, 161, 162, 20a, 217, 218. Bail. — Admitting to, a judicial act, 100; justice refusing to take bail, 98 ; (in .summary convictions), 162, 169, 170, 176, 209 ; estreating recognizance, 163, 170, 176, 210, 382, 333 ; "Oath may be administered to, as to their sufficiency, 96 ; (in in- dictable offences) discretionary before examination complet- ed, 89, 90 ; where indictment found and accused apprehend- ed on justices warrant, 60, 61 ; estreating recognizance, 90, 91 ; after examination concluded in felonies, 95, 96, 101 ; in misdemeanors, 96, 98 ; justices no right to bail in trea- son, 97 ; justice may in misdemeanors, on certificate of committing Justice, 100 ; power of County Judge to, 96, 97, 104 ; of Superior Courts and of their Judges 96, 97, 98, 104 ; surrender of accused or of defendant bv his bail, forms for, 140,142. Bemn. — Right to, 178. Behavior. — Binding over to be of, 291. 293. Binding over. — Party to prosecute and l)ear witness in indictiible offences, 85, 86 ; accused, 89, 90, 95, 96, 99, 100, 101. Bona Fides,— Of claim of title, 12, 13. 392 INDEX. Boundary. — Execution of warrant beyond, of county wherein is- sued, 68, 69, 160. BROKEin. — Embezzlement by, not triable at Quarter Sossionfl, 49. Q Cause. — Of complaint 152. Caution. — To a person accused of an indictable cfllVnce bclorc making voluntary statement 80-83. Certainty. — Indispensable in conviction 187, 188; degree of, required 187..190. Ceutikicate. — Of non-appearance of Defendant on recognizance, in summary cases 1G2, 170, 176, 204, 210; in indictable cases 90, 91, 307 Cbutificatb. — Of dismissal of an information or complaint 201 ; of indictment being found to autborize is.sue of warrant 59, 60 ; of consent to bail by Justice 100 ; of costs of pro- secution 329. CBHTioiiArti. — Taken away 234, 324, 384 ; can still issue in certain cases 235 ; lies of common rigbt 235. CiiAHOE — Of an indicttible offence for which a warrant may issue 52, 53. Charges. — Of commitment sea " Commitmk.n't." CniKESK. — Witnesses how sworn 21. Claim. — Of right or title ousts Justices jurisdiction 12, 13. Clear days. — Effect of, in reckoning time 147. Clbiik op the Peace. — His duties in Appeal 229, 237, 239, 241, 242 ; returns to be made to, 238, 239, 307, 324. Co-defendant. — Discharged and giving evidence 18, 19. ComriTMENT. — Of witnesses refusing to be examined in summary cases 168, 303, 322, 341 ; the like in indictable cases 75, 76, 77 ; for relusing to enter into recognisance 87. Commitment. — (on summary convictions) should be several against each 215 ; where punishment is by imprisonment 215, 216, instead of issuing a distress warrant 209 ; until return made to a warrant of distress 209; in default of distress 210, 211 ; in default of distress for costs where punishment is impri- sonment only 207 ; in default of distress upon an order ot dismissal 219 ; of a defendant for a subsequent offence 218 ; for a consecutive period 218, 219; In default of distress for costs of an appeal 238 ; must be in writing 214 ; under the hand of the Justice 214 ; may be by one Justice INDEX. 393 COMMITMBNT — Continued throui,'h convictiou by two or muri' 214, 215, 244 ; jurisdic- tion of Justice fihouUl appear in, 214, 215; uncertainty in, 215; in the alternative bad 188, 215, 216; must allege conviction 215 ; defects in, when cured by good conviction 21G; (hawing up f,'()()d conviction to support commitment 200; time of imprisonment and condition of discharge 215, 217, 244; not until payment of indefinite sum 214; nor until discharge by due course of law 214 ; hanl labor 214; blanks in 214; how long in force 217; charges 214; execution of 217; not on Sunday 6'2 ; where de- fendant already in custody 218; backing warrant 217; liberation on condition fultilled 217, 244 ; amendment 216 ; substituting good for bad 216; quasliing 217; bad in part 217. FoHMS. — For safe custody during adjournment 251, 252 ; of witness for refusing to be sworn and give evidence 257; on remand 258; for want of distress 270; on con- dition for penalty in lirst instance 277 ; for consecutive period where defendant convicted of two or more oflences on same day 278. CoM&nTMENTS (Ou Summary orders) — Minute of order to be served 205,200. in default of payment 207 : where sum is to be levied by distress 207. FoiiMs — 297, 282. Commitment — Upon conviction, &c., after appeal 230; FoKMs-268. Commitment. — Not void for defects 234, 235. Commitment. — (In iiuUctable oflences), for offences at sea or abroad 58, 59; upon an indictment f<)und CO, 01 ; remand 70, 88 ; after examination 88 for an oftence committed in another Territorial Division 91, 92, 93; of accused by sur- render by his bail 142. FoitMs. — Of person indicted 110; in detainer 118; of witness refusing to be sworn or to give evidence 123; of witness not summoned who refuses to be sworn or to give evidence 123; of witness refusing to enter into recognizance 130; on remand 123: for trial 139; on surrender by bail 142. Commitment — (Summary administiation Act) On conviction of larceny, feloniously receiving stolen property, attempt to commit larceny from the per.son, or simple larceny under sub sections I anfTenee or matter is punishable l>y imjirisonment only 207; whore punishable with a penalty and imj)ri.S()nment in default 207, 208 ; where penalty recovered by distress 207 ; where no mode of recovi'rinjjf p(!nalty, --hing conviction 237 ; mode ot levying;, ot appeal 237, 238. CoaT8, — (In indictable cases). Ot constable in 94, 95 ; of constable in New IJrunswick 379 ; in Quebec 3G9 ; in Nova Scotia, party comniittcid to bear costs of conveyance to Jail, 377; on his refusal, .Justice to isstie warrant of distress and appraisement to be made 377 ; if no goods 377. Costs. — (.Juvenile oifenders). .Tu.-itiees may order i)ayment of, 32G, 327. Counsel. — When iiiformation or comi)laint may be laid or made by, 171, 147 ; right to assiatunce of, upon summary hearing 174, 179; appearance of parties by, in summary proceed- ings 174. Counsel. — (Tn indictable cases). Prisoner no absolute right to assistance of 83, 84, 85. (Summary administration act.) Hight of pri.soner to a-ssist- anc(i of, ;'.02. (Speedy Trial), llight of prisoner to, 339, 340. Counselling. — Commission of summary offences 1G4, 1G5 ; com- mission of indictable offences 105. Coontv Judge. — (Indictable cases). Power to admit to bail 9G, 97 ; no power in case's of trea.^on and certain cases of felony 97, 98 ; on apj)lication to, in Ontario or New Brunswick, can order bail 104. (Summary administration.) Being J. P. power to act alone under 294, 295 ; same power under Juvenile (Jifenders Act 315 ; power under Speedy Trial Act 34'L INDEX. 397 Criminal Inpokmation. — A^aiiiKt Justict s for rcfiiHing to tako bail wh( n priHont r intitKd to, 98. Cbobs-Examination. — Uf witncKs upon a Rummary hearing 2.'1, 24, 181 ; of witno8S(;8 upon a charge of un in ment 117. Detainbr. — Wan-ant of, for a second indictable offence 61, 62 ; Form of 118. Discharge. — Of accused upon an indictable charge 99, 100, 101 : (Summary Acts) 299, 300, 319, 339 ; in certain cases where in- expedient to inflict punishment may be discharged 300, 319 ; under Juvenile Offenders Act in latter case on his finding sureties 319 ; (Summary Administration) Certificate of 314 ; (.Juvenile Offenders) 319, Dismissal. — Form of Order of 270, 271 ; of charge under Summary Administration Act 314; of charge when inexpedient to inflict anv punishment 319; effect of certificate of 201, 311,320.' Dismissal. — (Of complaint or information) as to in, general 181 ' 183, 184, 201 ; costs upon 204, 206, 207. Distress. — Costs of defendant upon dismissal of complaint or information to be recovered by, 207 where no provision for paying penalty &c., 207, 208 ; Backing warrant of, 208 ; provisions where issuing warrant of, would be ruinous, or that defendant has no goods 209 when warrant of, issued, defendant, may be bailed 209, 210 ; in default of sufficient, commitment of defendant 210, 211; instructions on form of, 211, 212 ; defendant not to suffer by, and imprisonment on the same conviction 213; duty of Constable charged with warrant of, 213, 214 ; fofms of warrants of 272, 275 ; form of endorsement of warrant 275. Documentary Evi- dence — rules respecting 28, 36; of Constables return to 215, 276. E ■Entering Appeal. — Sec Appeal. Evidence. — As to variances between informations, &c., and, 69, 7t 169 ; of witnesses to be given on oath or affirmation 19-22 - See witness, Documentary Evidence. ExPARTF. — Proceedings, 158, 175. INDXX. 399 Fees.— Of Clerk to Justices 206, 241, 370, 371, 378. Fi.NK. — Imprisonment in default of payment of, 209, 211 ; to whom to be paid 217, 238, 243, 244. Foreign CoUiNXRv. — Apprehension of parties for offences committed in, 58, 59. FoROERV. — Not triable at Q. S. 36. a Gaoler. — To release defendant on payment 217, 244 to receive penalties, &c. 217, 244; to receive prisoner from constabU 215 ; and to give receipt 101 ; form of receipt 140. Gentoo. — How sworn to give evidence 21, 22. General Sessions. — See Quarter SessIonsj. Guilty.— Pleading, 80, 82, 177, 178, 179, 298, .300, 301, 302, 339. H Habeas Corpus. — Putting in amended commitment to return of, 216, 217. IU:aring. — (Summary convictions and orders.) Before whom and where 172, 173, 178, 184'; appeamnce and non-appearance of parties 15(J, 158, 170, 174, 176, 177, 204; Proceeding exparte 158, 175; the course of proceeding at, 179-184; adjournment of, 154, 162, 109, 202, 203. • Hearing. — (Indictable cases.) The Court not an oi)en one 83, 84, 85 ; taking depositions 77-79 ; Adjournment of examination 70, 88 ; examination for an offence committed in another division 70, 71, 72, 91 92, 93, 9' ; defence of accused and examining his witnesses 77-79; committal or discharge of accused 91, 92, 93, 95, 101 ; taking bail for accused 77, 89, 100, Hearing — (Juvenile offenders.) Proceedings at, 318, 320. Sfe Justices (Juvenile offenders.) Hearing, — (Summary administration,) — Statement of cliarge 297, 298; proceedings at 298, 310, Hearing.- (Speedy trial.) 338-342. High Seas. — Appreljcnsion of party for offence committed on, 58, 59, Hi'Sband and Wifk. — S<'e Witnes'E?. 4(0 INDEX. 'Illness. — Of witness, proof of, in order to read depoBition 79, 80. Impbisonmknt. — Statement of time iind manner of, in warrant of commitment 214, 215; for Kubsequent ofl'ence, when to 218, 219; when it runs from in general 218, commence 219. Indictahi.e Offe.nces. — .TuriBdiction of Justices to hear charges of 8, 52, 106. iNDonsKMENT. — Backing warrant of approhension in indictable cases 70, 71, 72 ; in summary matters 161, 217, 218; back- ing warrant of distress 208. Informant. — Name of, in information 145 ; non-appearance of, 176, 203, 204; appearance of, at hearing 174, 177, 179; his address 180; to prove his case in the first instance 180, 181; compromise with defendant 182, 183; when liable for costs 206 ; commitment of, 207. warrant of distress against, 207 ; Information. — What is an information 145 ; before whom when and where to be laid 143, 152 ; as to, in general 143, 152 ; when to be upon oath 148, 171 ; by whom to be laid 171, 147; when to be for one matter otily 171, 148, 149; as to amendment of, 154, 155; statement of time 186, 187; place 18G, 187; name and style of Justices 186, 260, 270; statement of names of informant and defen- dant 145, 287, 288; description of offence 145, 149, 287; statement of sums and quantities 190 ; statement of excep- tions and provisos 149, 191 ; setting out written instru- ments 190, 191 ; when it may be for several offences 148, 149. 193; power to amend defects in, 154, 155; conse- quences of defects in, 154, 155; time for laying, 146, 147, 152, 171, 172; when to bo in writing 148, 156; »when to be upon oath 148, 171 ; When to be in respect of one thing only 148, 149, 171; one Justice may receive 244; The hearing of, 179, 184; taking objt^ctions to, 154, 155; dis- missal of, 178, 179, 181, 182, 183, 184; certificate of dis- missal of, 201. Intendment. — Not allowed to help out a defective return to Habeas Corpus 215, 216 ; or a defective description of offence 215, 216. Interest. — Justices disqualified by, 11, 12; witness not disqnali- fitd by. 16, 17. INDEX. 401 Jews. — IIow to be swoni 20. Joint-Te.vants. — How property of^ to be described 163, 1G4, 191. Joint Conviction. — On joint information 195, 197; penalty 195, 197. Joint Offenders. — 150, 195. Joint Tuial. — Discharge of one defendant so that he may be a witness 18, 19. Judge. — Of County Court, powers of, to admit to bail 96, 97, 98, 104, 105, 294, 315, 342 ; of Superior Court 96, 97,98, 104 105 ; of Ses.sions, powers of two Justices 102, 246, 294, 295 ,315, 342, 353 ; power to preserve order 246. Judgment — Of Justices upon a summary hearing 179, 184 ; duties of Justices as to, 179, 184; form of, pronounced by Justi- ces on summary proceedings 184. See Conviction. Judicial Act. — What is a, 7, 8. Jurisdiction. — Of Justices in general 8, 11 ; must be expressly given by the Statute 8, 9 ; limits of, 10, 11 ; local extent of 10, 11 ; Justices must appear to be acting in their juris- diction as well as for it 14 ; qualified as to number and description of Justices 10; priority of 173; as to ott'ence 10, 11; limitation as to amount 14; as to time 14; must ai)i)ear on face of proceedings 14 ; ousted l)y chaim of right or property 12, 13 ; information &c., requiretl to give, 145 ; practice wliere defendant or accused apprehended in a different jurisdiction to what in wliich offence committed 71, 72, 91, 92, 93, 94, 95. Jury. — Trial before Justices originally by, 2 ; Justices in place of, 2; as to effect of evidence 100, 101, 183, 184; appeal, when tc, 231. Justices. — Origin and progress of the jurisdiction vested in 1-6 ; appointment of, 6 ; (Xndictiible offences,) jurisdiction over indictable offences 52, 53, 58, 72 ; as to granting warrant 53, 55, 57 ; over what offences jurisdiction 52, 53, 58, 72 ; as to issuing summons in lieu of warrant 54 ; issuing warrant on non-appearance of party summoned 55 ; service of summons 56, GG ; information to be supported by oath ere issuing summons or warrant 55, 63 ; offences on the high seas 58, 59 , on land beyond the seas 58, 59 ; meaning of words, found within the jurisdiction of, 59 ; power of, where person indicted at large 59, 60 ; certificate to be produced to, in such case 60 ; can commit or bail in such case 60, 61; may order person indicted in prison to be AA 402 INDEX. Justices — Candnued detained 61, 52 , may issue warrants on Sunday 62 j can. il not issue summons on Sunday 62 ; may reetive informa- tion whereon warrants issue on Sunday 62 ; no objections allowed to informations or complaints before, 63, 64 ; granting search warrant 64, 65 ; summons granted by, contents of, 66 ; service of QQ ; constable, attendance of, to prove service 66 ; non-appearance of person served 66, 67 ; warrants granted by, contents of 67, 68 ; to remain in force until executed 68 ; how executed 68, 69 ; in next adjoining territorial division 68, 69 ; who may execute wan-ants of, 69 ; no objections to summons or warrants 70 ; party deceived or misled by variance case may be adjourned by, 70 ; party accused may be remanded or bailed during such adjournment 70; backing warrants by, 70, 71,72; Jiccused arrested on backed warrant may be taken before Justice backing or some other Justice, if constable so directed 72, 73 ; summons to witness 73 ; mode of pro- curing such summons 73 ; warrant against witness ne- glecting to appear after being summoned 73, 74, 75 ; war- rant for witnt ss in lieu of summons 75 ; proceedings by, if witness refuses to be sworn or refuses to answer 75, 76, 77 ; just excuse by witness 76, 77; to take evidence in pre- sence of accused 77, 78, 79 ; procedure at examination 77-85 ; mode of examination of witnesses before, 78, 79 ; bound to examine all parties who know circumstances ot case 79 ; to a(iminister oath or affirmation before examination 79, 80 ; if on trial it is proved witness is dead or so ill as not to be able to travel, or absent, his deposition taken before, can be read 80 ; mode of taking such examination by, 80 ; to caution accused 80, 81 ; admissions or confessions may be given in evidence 81, 32, 83; examination signed by, admissible on trial 81, 82 ; place of examination by, not an open Court S3, 84 ; Counsel or Attorney of accused can be excluded by, 83-85 ; Mr. Saunders' opinion on expediency of such exclusion 33-85 ; binding over of witnesses by, 85, 86 ; to subscribe recognizance 81 ; transmission of recog. nizance by, 86, §7 ; witness refusing to enter into recog- nizance may be committed by, 87 ; discharge of witness so committed 87, 88 ; on notification of willingness to enter into recognizance, duty of, to witness committed 88 ; ad- journment of examination by, 88 ; remand by wanant not to exceed eight clear days 88 ; verbal remand not to exceed three days 89 ; may be to custody of constable or other person named by, 89 ; may bring up person remanded before expiraticn of remand 89 ; may admit party accused INDEX. 103 if Ian be ter td- Ut Ito or led led Justices — Continued to bail instead of remanding him 89 : non-appearance on recognizance 90 ; offence committed in another territorial division 91 ; proceedings thereon by, 91-33 ; if evidence sufficient, to commit or bail 91, 92; if not sufticient to order accused to be taken before Justice for the division within which the offence is alleged to have been committed 92 ; depositions before, so ordering, proof before other Justices 93 ; to furnish constable with certificate 94, 95 ; accused in certain cases, under certain circumstances may be admitted to bail by two, acting jointly 95; exception* to such rule 95, 96 ; nature of recognizance 96 ; bail may be required to justify by, 96 ; Judge of Superior or County Court may order person to be aclmitted to bail by recog- nizance before two, 96, 97 ; not to admit to bail persons accused of certain crimes, save by order of a Judge or Court 97 ; Courts and Judges empowered to make such order 97, 98 ; bailing to issue warrant of deliverance 98, 99 ; if evi- dence sufficient, accused to be bailed or committed by, 99 f if insufficient, to be discharged by, 99 ; always to bail in cases of misdemeanor 99, 100 ; neglecting or offending, punishment of, 105 ; Act applicable to all 105. Justices. — (Summary Convictions) receiving infornmtion or com- plaint duty of, 143, 144; to issue summons 144; contents . summons 144; jurisdiction 144, 145; cannot refuse to receive an information 145, 146 ; time of laying inform- ') ) ation before, 146, 147, 171, 172; requisites of information before 1 45, 1 52 ; Constable to attend before, to prove service of summons 153 ; in certain cases can make orders on application exparte 153 ; adjournment by, if defendant misled 154 ; no objections to information, complaint or summons to be allowed by, 154, 155, 162 ; if summons duly .served not obeyed, warrant may be issued by, 156, 157 j information in such case to be substantiated on oath 156 ; where warrant issued in the tiiv-t instance copy to be fur- nished by, and infonnation to be substantiated on oath 157, 158; such copy to be served on each party arrested 157, 158; appearance before, may be by Counsel 157; minute of proceedings to be kept by, 157; proceeding exparte before, 158, 159; form of warrant of, 159, 160; duration of warrant of, and how to be executed 160 ; in case of fresh pursuit in adjoining division 160 ; service of warrants of, by whom to be made 1 60 ; backing warrants 161; variance immaterial between warrant and evidence 161 ; defendant deceived by variance adjournment 162; defendant in such case to be committed or bailed 162 ; failure 404 INDEX. Justices — Continued of defendant to appear to be certified on recognizance l»yi 163, 170, 177, 204, 210; aiders and abettors, proceedings against, before, 164, 165 ; to grant summons for witness 165, 166; oatli necessary in such case 166; warrant of, when witness fails to appear 166, 167 ; warrant under certain circumstances may be issued against witness in first instance by, 167, 168; commitment of witness for refusal to give evidence 168; certain complaints before, need not be in writing 168 ; certain variances not material 169 ; del'endant misled, may adjourn hearing 169 ; on wliat con- ditions 169, 170 ; informations and complaints may be laid before, without oath 170, 171 ; exceptions 169, 170; issuing warrant in first instance information to be on oath 171 ; to be single 171 ; may be laid by counsel or agent 171 ; where no direction in act upon which complaint is framed one Justice may hear 172; one may receive information, &c., 172, 244; Justice taking information, &c., need not hear case 173, 245 ; contest, between, 173; first set of, have exclusive jurisdiction 173; concurrence of two requisite 173, 245; division of opinion between, 173; open Court, . room where hearing takes place 174 ; defendant's right to defend by Counsel 174 ; complainant's right to prosecute* by Counsel 174; proceeding exparte 174, 175; may issue war- rant on defendant's default to appear at heaiing 174, 175 ; proceedings before, when defendant apprehended 175; no committal in such case to be for more tlian one week 175, 176 ; complainant or informant to have notice of day and place for hearing 170 ; in such case, may if complainant or informant does not appear, discharge 176 ; or commit hiui 176 ; or bail him 176 ; proceedings before, at hearing 177, 184 ; minute of conviction or order to be made by 184|; to be afterwards drawn up under hand and seal 184 ; con- viction by, 184, 200 ; certificate of Dismissal to be given by, 201 ; witnesses before, to be sworn or to affirm 202 ; discretion of, to adjourn 202, 203 ; may thereupon commit defendant or discharge him on recognizance 203 ; if either or both parties do not appear, may proceed to the hearing 203 ; prosecutor not appearing may dismiss 204 ; with or without costs 204 ; form of convictions in schedule 204, 205 '■ forms of orders in schedule 205 ; copy of minute of oraer of, to be served 205, 206 ; may order costs in any case 206 ; to be specified 207 ; how recoverable 207 ; may issue warrants of distress 207 ; when no mode provided for levy- ing penalty distress to issue 207, 208 ; backing warrants of distress 208 ; where warrant would be ruinous, or there are INDEX. 405 Justices — Conlinuned no floods, may commit 209 ; may bail or detain dcfonilant until distress rt'turned 209, 210 ; in default of sufiicieut distress, may commit defendant to i)rison 210; Avhere no term specified in act, period of imprisonient not to exceed three months 211 ; commitment by, for subsequent offence 218 ; costs of dismissal to be recovered by distress 219 ; in default of distress, commitment for not more than one month 219; recognizance before in cases of Appeal 221, 225, 226, 382, 383; if Appeal dismissed, may issue warrant of distress or commitment 234, 383 ; convicting to return conviction 235, 23G; and deposit money if any 235, 236 ; on production of certificate of non-payment of costs of Appeal, may enforce payment by distress 237, 238 ; and in default of distress may commit 238 ; return of convictions and moneys received by 238 ; form of return 239 ; penalty on, neglecting, &c , to make proper returns 240 ; limitation of prosecutions against, for not making returns 240, 241 ; schedule of returns made by, to be posted and published ^241, 242; indictment against 242, 243; criminal informa- tion against 242, 243 ; irregularity arising from ignorance or mistake never a ground for information t)r indictment 242, 243 ; one can issue warrants of distress and commitment 244 ; amount to be paid to party aggrieved limited 245 ; certain magistrates to have powers of two, 24G ; such magistrates power to preserve order 246 ; powers of Justices to preserve order 247 ; to commit for contempt 247 ; enforce- ment of process by Police Magistrate, &c., 247. Justices. — (Juvenile offenders.) Two, have same power as Recor- ders, 315 ; persons not more than sixteen years in opinion of, may be summarily convicted before two, 316, 317 ; offences for which such juvenile offenders may be convic- ted before two, 316, 317, 318 ; punishment on such convic tion 316, 317, 318 ; to ask consent of accused to summary trial 318; accused, or parent or guardian of accused, ob- jecting, he cannot be tried 318 ; if case not proved, shall dismiss 319 ; if proved, in their discretion need not inflict punishnK'nt 310 ; in such case accused to give sureties 419 ; certificate of dismissal 319 ; if accused does not consent, case to be sent to a jury 320 ; if charge a fit sid^ject for indictment, case to be sent to a jury 320 ; if accused afterwards con- sents he can be tried before Judge of (Jounty Court in Ontario 320 ; one Justice may issue his warrant or sum- mons returnable before two, 320 ; charge under oath to be previously niade before him 320 ; one Justiee may remand or take bail 21 ; condition of recognizance 321 ; enlarging 406 INDEX. Justices — Continued or discharging recognizance 321 ; one Justice may sununon witnesses 321 ; may bind witnesses over 322 ; may compel attendance and issue warrant to apprehend 322 ; summons to witness how served 322 ; form of Convictions by, 322, 323j certiorari taken away 324 ; convictions and recognizances to be transmitted to Clerk of the Peace 324 ; restitution may be ordered on conviction 325 ; or the payment of value in money in case of conviction or dismissal 325 ; enforcing payment of penalties 326 ; committal for non payment 326 ; costs of prosecution may be awarded 326, even without conviction 327 ; paying officer 327, 324 ; Total of costs not to exceed $8, 327 ; payment of penalties 327, 328 ; Certificate of expenses &c. to be certified by, not to exceed in any one case eight dollars 328, 329. Justices. — (Juvenile offenders in Quebec.) OflVnders detained in a certified Reformatory School may be summarily convict<.'d before one Justice of certain offences 333 ; wilful neglect or refusal to conform to rules of School 333 ; punishment by imprisonment with hard labor for term not exceeding three months 333 ; escaping from School 333, 334 ; must be previous to expiration of his period of detention 334 ; may be apprehended without warrant 334 ; Justice wliere he is found, or from whence he has escaped, can convict 234 ; consent of managers necessary 334 ; punisliment not to exceed three months imprisonment with hard labor 334 ; two, can summarily convict persons aiding sucli detained person to escape, inducing him to escape or harboring him, &c, 334, 335 ; punishment 335. Justice's Clerk.— As to, in'general 370, 371, 372, 373, 374, 370, 378. Juvenile Offenders. — Summary proceedings against 315, 330; in Quebec 331, 335. See Justice (Juvenile ofienders.^ Larceny. — Summary proceedings in cases of, 294, 313 ; exceptional jurisdiction in N. B. 379, 380. See Justices (Juvenile oflen- ders.) Limitation of time. — For preferring informations or complaints under summary conviction Act 171, 172 ; for action against Justice under said Act 240, 241. Libel. — Q. S. no jurisdiction to try 37. Limits. — As to locality 8, 11. INDEX. 407 r8. M Magistrate.— ( Police,) powers of two Justices 102, 246, 294, 295, 315, 353. /District) wht;ro no Judf^e of Sessions, has power to try offonaers under Speedy Trial Act 324 ; any magistrate au- thorized to do alone what two Justices authorized to do] powers of. See Police Magistrate- Mahometans. — How sworn 24. Mandamus. — When it will issue to Justice 145, 146. Married Woman.— How penalty inflicted on, to be levied 202; how to be bound over to- give evidence 85, 86. Master. — When liable on summary conviction for act of servant 150. Memorandum. — Of conviction or order to be made 184. Minors. — How to be bound over to give evidence 85, 86. Minute. — Of adjudication in summary convictions and orders to be made 184 ; of orders to be served before enforced 205. Misdemeanors. — One Justice may take bail in, 96. Misprision of Treason. — Quarter Sessions no jurisdiction to try 36, 37. Money. — Restitution of, stolen embezzled, &c., 308, 309. Month. — Meaning of month 147. Motions. — As to making, at Q. S. 229. Murder. — Q. S. no jurisdiction to try 37. N Next Session. — Meaning of 382. Non-Appearance. — Of both parties upon summary proceeding* 176, 203 ; of complainant 176, 204; of defendant 158, 159, 163, 174, 175, 204; warrant to apprehend 163,175; case may be heard ezparte on, of defendant 158, 159, 174, 175, 205 ; in indictable cases on, of accused summoned, warrant may issue 54, 55. Of witness, see Witness. Not Guilty Effect of plea of, 180, 178. Notice. — Of recognizance to be given by Ju.stices 86. Notice of Appeal. — See Appeal. Notice to Produce. — When necessary 29. Oath. — Wlicn information to be under oath 171, 143 ; charge oi indictable offence to be under, 53, 63. 2 408 INDEX. Objections. — To wiirmuts informations, &c., not allowed 63, 04 69, 70, 154, 155, 102. Offence. — Statement of, in clmrpje O;], 04 ; variance 63, 64, 09, 70 ; statement of, in information or complaint 150, 151 ; several offences 148, 195, 108; joint oflences 195, 198 ; conviction of, 184, 200; commitment for, 214, 218j Btatement of, in warrant of distresB 212. ORDEn. — For discharge of a witness committed for refusing to enter into recognizance to appear 87, 88. Order of Dismissal. — See Dismissal. Orders. — As to, in general 145, 151, 152 ; distinction between orders and convictions 145, 200 ; when minute to be made by Justices 184 ; minute of to be served ere process issuing 205, 200. See Information, GONVicTiON',DiSTnESS, commitment. Ownership. — Of property how described in information 103, 104. Parceners. — Property of, how described in information 103, 164. Partners. — Property of, how described in information 163, 104 ; property of, how distrainable 212. Payment. — Defemlant on distress to be released on, 214, 243, 244 ; defendant committed to be released on, 217, 244. Peace.— Sureties for the, 291,292. Penalty. — Several on each offender 193, 197 ; not to be taken in part 217, 218 ; imprisonment in default of ])ayment of, 210, 211,198; of levying by distress 197, 198, 207, 214; to whom to be paid 238 ; on Justices for not making returns 240; statement of penalty in conviction 192, 193. Plage. — Of commission of offence to be stated in information 187, 151 ; of hearing in indictable cases not open Court 83, 84, 85; of hearing in summary matters open Court 174, 310, 339, 340. Pleading. — By defendant in summary matters 177, 180, 298, 302, 318. Police Magistrate. — See Magistrate. Previous Conviction.— When to be proved 310, 317 (nA) Prisoner. — Cross-examination of witnesses by, 80 ; no absolute right to Counsel or Attorney at preliminary investigation in an indictable offence 83, 85 ; right to cross-examine witnesses for prosecution 80 ; statements by, before Jus- tice 81, 82, 83 ; evidence insufficient, to be discharged 99, 100, 101 ; voluntary examination of 80-83 ; caution to be iil».liriifi"ltiir fciTiiiii'ri I rii-ZiHrmili I "iim'rxmt jtrm iv INDEX. 409 Prisoner — Continued given to, 81-83; wlirn to be ilisc hargod or committotl 09, 101 ; when to be biiib-d 90, 101 ; accnscd of miwde- mennor cntitlt-d to bo bailed 100, 98 ; when nmy bo bailed on certitirato of Justice 100; how to apply to bo bailed in treason, &e.,07, 98 ; as to right to copies of depositions 101, 102 ; mode of proceeding against, when indictment found 59, GO. Pkoi'Erty. — Scfi OwNEnsnri'. « PnosEcuTOR. — Duty and rights of, 55 ; as to his costs luider Juvenile Offenders Act 326, 327, 328, 329. Public Goi:ut. — Place of hearing under Summary Convictions, Summary A(hninistration, Jtivenilo Olfenders and Speedy Trial Acts is a, 174, 310, 339, 340. Q Quakers.— Aftirmation of, 19, 20. Quarter Sessions. — Cases over which jurisdiction is denied to, 3G-51. Queen's Bench. — Power to admit to bail 97, 98, 104, 105 ; one Judge of, power to admit to bail 97, 98, 104, 105. K Recognizance. — (Indictable Oftences) of accused on adjournment 70, 89, 90, 30G, 321 ; to ajjpoar and answer indictment GO, Gl ; of witnesses 85, 8G, 87, 01, 322 ; witness refusing to enter into, to be committed 87 ; notice of, to be given 86 ; to be transmitted to proper Court 86, 00, 03, 307 ; to be given for good behavior by accused when discharged under .Tuvenile Ollenders Act on ground of inexpediency of inflict- ing punishment 319 ; (Summary Convictions) of defendant upon adjournment 102, 1G9, 170, 176, 180, 203; for defen- dant's aj)pearance on return of distress warrant 200, 210 ; on appeal 221, 382, 383; transmission of, 1G3, 170, 177, 204, 210. He-examination. — Of witnesses 25, 78, 70. Reformatory Schools. — (Quebec) As to sending Juvenile Offenders to, 331, 332 ; wlion incorrigible maybe sent to Penitentiary 322 ; refusing to conform to rules 333 ; escaping from, 334, 335 ; persons aiding to escape or harboring prisoners in, 334, 335. 410 INDEX. Remand.— Of accused pondinj; adjomnmont 70, 88, 09, 306, 307, 321 ; not to exceed cortain time 88, 89. Residence. — Of Justices 10, 11 ; services at, 56, 6G, 152, 303, 322. Respondent. — Ou Appeal 229, 230. Restitution.— Of property 308-310 Return. — Of warrant G8, IGO ; of constable to warrant oi distress 210; of conviction to Sessions 238, 239, 335; coi)y to be • sent to Minister of Finance 242, 386; under Juvenile Offenders Act 324. Right.— (Claim of) duty of Justices upon assertion of, 12, 13. Rules. — 6Ve HEroiiMATORv Schools. s Sale. — Si-veral acts of, in one day, when single offen e 193-197; when several olfences, 193-197 ; of goods distrained 212. Sea. — Offence committed at Sea 58, 59. Seal. — Justice's, to conviction 198, 184 ; to warrant G7, 159 ; want of does not invalidate 350, 351 ; may be affixed at any time 350, 351. Sentence.— Upon accused 298, 299, 301, 302, 305, 310, 316, 322, 323, 332, 333, 334, 335, 339. Service. — Of summons for indictable offence 56, 60 ; of summons to witness 75, 167, 303, 322 ; of summons in summary cas 152, 153; proof of 8(;rvice of summons beftre issuing warrant 157, 153; of minute of order 205, 206; of notice of appeal 225, 382, 388. Sessions. — See Quarter Sessions. Several Defendants. — Several offences 193-197 ; Several penalties 193-197. Statement of prisoner. — How to be made before Justices 80, 83 ; cautions to be given to 81-83 ; other statements of, evidence when made without promise-or inducement 82, 83. Sudpoena. — To witness in summary matters 165, 166, 302, 303, 321; to witness upon charge of indictable offence 73, 302, 304, 322 ; forms of 120, 254. SUMMARY CO.NVIGTIONS. — See CONVICTIOXS. iSu-MMARV Jurisdiction for Larcenies.- 296, 314, 315, 335, 336, 346, 379. Summons. — To a defendant 144 ; form of 144, 249 ; service of 152, 153; proof of service before granting warrant 156, 158- proof of service of, before proceeding ezparte 158, 159 • INDEX. 411 Summons — Continued to witness, see SunpotNA ; (indictJiMe ollVnccs) for Indictftbh* offence 54, 56; form of, 56, GO, 110; service of, G6, 5G ; non-appearance of acciised 55; to witness 73, 120; how obtained in summary matters 1G5, 166, 302, 303, 321; how obtained in indictable offences 73. Sums. — How to be stated in information and conviction 190. Sunday. — Warrant to apprehend for an indictable offence may be granted and executed on, G2 ; search warrant may be granted and executed on, G2. Time— Of commission of offence to be stated in information and conviction 14G, 147, 186; for laying information or com- plaint 146, t47 i mode of computing 146, 147; statement of imprisonment in warrant of commitment 214, 198, 192, 193 ; for giving notice of appeal 225, 282. Title. — Claim of, ouster of jurisdiction by, 12, 13. Treason. — Quarter Sessions no jurisdiction to try, 37 ; Justices not to admit to bail in, 97. Treasurer. — To pav constable's fees in certain cases in Nova Scotia 377. 303, 73, 336, 152, 1158 ; 159: Variance. — Upon a charge of. n indictnl 1e ofTt-nce G3, 64, 69, 70; between information aun complaints and evidence 154, 155 ; between warrant and evidence 162. w Warrant. — Form of, for indictable offences 67, 68 ; power to b\ ck and form of backing 70, 72 ; form of, when summons disobeyed 54, 57, 111 ; taking objections to, of no avail 69, 70 ; to be in possession of officer at time of execution 217; to remand prisoner pending adjourum'-nt 88 , 132 306, 321. Warrant of Commit.mknt. — See Commitment. Warrant of Distress. — See Distress. Warrant of Deliverance. — To be issued upon bail being given 98, 99 ; form of, on bail being put in 138, 139. Warrant. — (Search.) When it may be granted 64, 65 ; Method to o!>tain, 64, 65. 412 INDEX. Warramt to Apphehe-nd. — In indictable cases.) When to ]»e ob- tained 52, 54 ; when it may issue in first instance 52, 54, 320 ; objections to, not allowed G9, 70 ; when to issue 52, 50, 60; form of, GG, G8, lO'j, HI, 112, 115; how exc. cuted 68, 69 ; backing 70, 72 ; practice on backed warrant 70, 73 ; may be granted and executed on Sunday G2 ; for offences committed on high seas and abroad 58, 59 ; to apprehend accused indicted 59, 60 ; against a witness for disobedience to summons 73, 75, 302, 303, 322, 340, 342, 345 ; against a witness in the first instance 75, Warrant to Apprehend. — (In summary cases) when it may issue 156, 157, 158; on non-appearance of def^endant summoned, may issue 156, 157 ; proof of service of summons before issuing 156, 157; deposition on oatli l)efore issuing 156, 158 ; by wliom to be executed 159, 160 ; against witness simimoncd not attending 166, 167 ; against witness in first instance 1G7, 168. Witness. — General rule as to competency of, 16; o1»jection gene- rally is only to credibility 16 ; interest in subject matter in question no ground for exclusion of, 16 ; crime no ground of exclusion of, 16; religious belief necessary 17; idiots and lunatics are incompetent 17; husband and wife cannot as a general rule be witness for or against eacli other 1 7 ; exceptions to such rule 1 7 ; party charged incomi)e- tent 17 ; cannot be compelled to answer questions tending to subject him to penalty, &c., 18 ; can answer if he chooses 18 ; acquittal of one accused renders him a comixtent wit- ness for or against those jointly indicted with him 18,19 i same rule wliere one pleads guilty 19 ; power of Justices to administer oath to, 19; form of oath 19, 20; affirmation by Quaker 19, 20 , oatli to be ailministercd in form binding on conscience of, 20 ; evidence of infidel not to be received 20; Oath of Jew 20; of Covenanter 20, 21; of Maliome- tans, Parsees, Peers, Gentoos, Ghinese, Deaf and Dumb persons. Foreigners 21, 22; interpreters 21, 22; examina- tion in chief of, 22 ; party producing witness cannot give evidence of his bad character 22, 23 ; may i)rove inconsis- tent statement of his, 22, 23 ; condition precedent to such proof 23; evidence ofattrsting witness unnecessary 23; comparison of handwriting allowed 23 ; mode of cross- examination 23 ; leading questions generally permissible 23 ; may be cross-examined as to previous statements in writing without their production 23, 24 ; cannot contradict his answers about such stat<'mcnts by production of writing without jiroduction of it to him 24 ; may be asked if he has bein convicted of felonv or misckmennor 24; if lie (Unies na INDEX 413 Witness — Continued may be contiadic ted 24 ; denying previous contvadietoiy statement may bo contmdicted 24; us to character 24; mode of rc-exu'.niiKition 25 ; new facts or statemi'nts not tending' to explain jirevious answers, inadmissible 23; general rules as to evidence of, 25-36. Witness, — (In indictable cases.) Mode of compelling attendance of, before .Justices 73, 77 ; summons to, 73 ; reciuisites ot altiilavit to olitain summons 73,74, 111); if sranmons not obeyed, warrant against, 73, 74 ; service of summons to be l)roved ere issuing warraiit 73, 74 ; fonn of summons 74, 120; form of warrant 120,121; warrant can be l^acked 74, 75; if justice satisfied of probaliility that witness will not attend, can issue Avarrant in first instance 75 ; form of such warrant 121, 122 ; sucli warrant can be backed 75 ; non-payment of witness' expenses no ground of cxcu.'^e for non-attendance 75 ; appearing and refusing to be exa- mined may be committed 75, 7(J ; for not more than ten days 70 ; form of such warrant 122, 123; just excuse for not answering 27, 76, 77 ; husband and wife, idiots, children priests, ministers 70, 77 ; question must l»e pertinent 77 ; mode of examination 77, 7t) ; to be sworn before examina- tion 79 ; dept)sition to be taken 80 ; person accused to liave full power to cross-examine 80 ; either personally or by Counsel or Attorney 80 ; deposition available on trial 79, 80 ; to be bound b)' recognizance 85, 80 ; married women and infants to give security 85, 86 ; form of re- cognizance 127, 128 ; notice of recognizance to be given 86, 129; refusing to enter into recognizance io be cv Jn^ice 127; not^..:^;:r^:!':!;:.^'«^--) ^^---te or^.. evidence 127 ; notil-e to 1.,. J ve U of^ *« Prosecute orgive evident 137. See Notice. ^"^^ ' ^^ ''^^^ to appear for trial (Summary conviction .0 . .. ... ^' '^^ 418 INDEX TO FORMS. S Summons — Indictable ofFonces) to a person charged with an indict- able offence 110 ; to a witness 120. (Summary convictions 32 & 33 Vic. c. 31) to the defendant upon an information or complaint 249 ; to a witness 254. w Wakbant — (Indictable offences) of apprehension — to apprehend a person charged with anollence 109 ; when the summons is disobeyed 111; to apprehend a person charged with an indictable offence committed on the high seas or abroad 112; search, 114; to apprehend a person indicted 115; when a witness has not obeyed the summons 120; for a witness in the first instance 121 ; to convey the accused before a Justice in the County in which the offence was committed 135 ; to apprehend a person charged by his bail 141. (Of commitment) of a person indicted 116; to detain a person indicted who is already in custody for another offence 118 ; of a witness for refusing to be sworn or to give evidence 122 ; ot witness in like case wlio attends without a summons 123; of witness for refusing to enter into recognizance 130; of commitment 139; of person charged on surrender of his bail after apprehension under a warrant 142. (Of deliverance) on bail tor a person already committed 138. (Of remand) remanding a prisoner 132. (Summary convictions 32 & 33 Vic. c. 33) of apprehension when the summons disobeyed 250 ; in the first instance 251 ; where a witness has not obeyed the summons 255 ; for witness in the first instance 256. (Of commitment) of a witness refusing to be sworn or give evidence 257 ; for want of distress 276 ; upon a conviction for a penalty in the first instance 277 ; of defendant for consecutive period where convicted the same day of two or more offences, adapted to where a penalty or imprison- ment adjudged, and whether defendant is in prison or pre- sent at the time of conviction 278 ; on an order in the first instance 279; for want of distress for costs upon an order of dismissal 282 ; for want of distress for costs of appeal against a conviction or order 286 ; in default of sureties to keep the peace 292. INDEX TO FORMS. 419 Wabbant of Distress — Upon a conviction for a penalty 272 ; upon an order for payment of money 274 ; for costs tipon an order for dismissal of information or complaint 280 ; for costs of an appeal agaii '